Campus Free Speech

"Is This Law Professor Really a Homicidal Threat?"

No, not me! More on the University of Illinois at Chicago John Marshall Law School / Professor Jason Kilborn controversy.

|

Prof. Andrew Koppelman (Northwestern) writes at the Chronicle of Higher Education about follow-on developments in a controversy that I blogged about last week (the one that began with an exam question that discussed a racial harassment hypothetical, and contained expurgated slurs). An excerpt, though you should read the whole thing:

[Prof. Kilborn writes:] "On Thursday, January 7, I voluntarily agreed to talk to one of the Black Law Students Association members who had advanced this petition against me. Around hour 1 or 1.5 of a 4-hour Zoom call that I endured from 5:00 pm to 9:00 pm with this young man, he asked me to speculate as to why the dean had not sent me BLSA's attack letter, and I flippantly responded, 'I suspect she's afraid if I saw the horrible things said about me in that letter I would become homicidal.' Conversation continued without a hitch for 2.5 or 3 more hours, and we concluded amicably with a promise to talk more later.

"He apparently turned around and reported that I was a homicidal threat. Our university's Behavioral Threat Assessment Team convened, with no evidence of who I am at all, and recommended to my dean that I be placed on administrative leave and barred from campus. […] Having full discretion to implement or reject that recommendation, and knowing me fairly well, having worked with me quite a bit for the past four years, my dean decided that I was, indeed, a homicidal threat." …

The university cannot possibly suspend and bar from campus everyone who uses the occasional violent figure of speech. Such metaphors are common in casual conversation. In context, no reasonable person could take his language literally (assuming that his report of what he said is accurate). Even if one did take it literally, his statement was a speculation about the dean's state of mind, not a statement about his own.

Policies of mandatory investigation are warranted when students report threats. But there needs to be an available mechanism of summary dismissal when such reports turn out to be frivolous. John Marshall Law School has two such mechanisms: First, the Behavioral Threat Assessment Teams are charged with determining whether threats are genuine, and, second, the dean has discretion to accept or reject their recommendations.

It is hard to believe that Dean Dickerson would have reacted the same way if Kilborn's exam had not already provoked controversy. The complaints about the exam were apparently not sufficient to trigger the sanctions that might mollify the complaining students. The purported threat, however, offered that opportunity.

Given that this whole incident was occasioned by a "Civil Procedure" exam, it is hard not to remark upon the denial of due process. Kilborn has been given no opportunity to defend himself. When students make unreasonable demands, a school has an obligation to protect its faculty. The law school's behavior is reminiscent of indiscriminate blacklisting during the McCarthy era.

The administration's behavior creates a climate of terror. Faculty have been asked at many colleges to give more attention to issues of racial inequality. But how are they to do that without acknowledging distressing facts? …

NEXT: Is the President an “officer of the United States” for purposes of Section 3 of the Fourteenth Amendment?

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. There is an irrational obsession with believing that racism has an overriding control in this country. This irrational obsession runs almost exclusively by democrats/ progressives.

    This perpetuating the concept of racism is creating far more harm.

    A person who excels because they work harder is deemed racist

    1. When I was young, the bigotry in America was open, common, and casual. Racism. Misogyny. Gay-bashing. Anti-Semitism. These are examples, not an exhaustive list.

      Today, we have plenty of vestigial bigots, especially in the backwaters, but today’s bigots no longer wish to be known as bigots. Instead, they hide — in public — behind euphemisms such as “traditional values,” “color-blind,” “conservative values,” and “heartland.” They tend to reserve their unguarded, genuine positions on Blacks, women, Muslims, gays, Jews, and others for contexts they believe to be safe, such as private homes, pseudonymous (or anonymous) online message boards, militia gatherings, and Republican Committee meetings.

      This is great American progress, achieved in the course of two or three generations. Bigotry will continue to fade in America. The bigots will be replaced.

      That is the American way.

      1. California, Illinois, and New York are three of the poorest states in America, ravaged by crime, teeming with homeless, their infrastructure rotting, their big cities a cess pool of filth, incompetence, and negro dysfunction.

        Those states, however, are thriving when it comes to affirmative action, minority set-asides, identity politics, the power of public sector unions, worship of aberrant behavior, and embrace of big-tech and censorship.

        No wonder so many are fleeing such hellholes.

        That is the American way.

        1. “and negro dysfunction”

          And that is the Volokh Conspiracy, movement conservative way.

          1. Rev, you know that I am not, and never have been, a movement conservative. If you want to pigeon hole me, think Rothbard, Spooner, Woods, Rockwell.

            1. The not so good reverend cares not about facts. Emotion and ignorance is his path to salvation.

            2. Rothbard may have been born a Jew, but he was an out antisemite, which was probably part of his appeal to Ron Paul. When you say we should associate you with “Rockwell,” would that be Lincoln Rockwell, an American Nazi?

      2. Kirkland, you have no idea the hell this man is enduring and I pray you never do.

      3. And your bigotry is morally acceptable? Please explain. How will the bigots be replaced?

  2. Many (most?) invocations of “Cancel Culture” are just rhetorical tribalism.

    This is Cancel Culture. It must stop.

    1. “This is Cancel Culture. It must stop.”

      Where should it stop? At an exam with redacted slurs? Should a professor who gave the same hypo with un-redacted slurs be canceled?

      1. In arguable cases, reasonable people can differ about where to draw the line. Personally I’m on the Volokh-Kennedy side of that discussion. But this shouldn’t even require a discussion. There’s nothing arguable about it.

        1. “But this shouldn’t even require a discussion. There’s nothing arguable about it.”

          It sounds like you’re saying that the same hypo with unredacted slurs would be arguable but this is not. That seems…arbitrary.

          Of course, the Black Law Students association is arguing it. So it’s arguable.

          1. That’s not what arguable means. There were Qs still “arguing” at 11:45 AM that Trump was going to return to the White House, arrest Biden, Hillary and Bill Gates, and serve out his second term. That didn’t make it arguable.

            1. There was also a self-made millionaire client of mine arguing the same late yesterday afternoon.

              1. Your client is pathetic, vanquished, belligerently ignorant scum.

                And a strong candidate to follow the Volokh Conspiracy.

                1. Arthur, you’re projecting again.

                2. RAK, I guess you threw Biden’s speech right out of the window. With folks like you around national unity is impossible.

                  And save us the “whataboutisms.”

                3. He could sell his company, and retire, yet, he chooses to continue to employ about 90 people who, in the words of the misanthropic Mike Dukakis, all have “good jobs with good wages.”

                  His company furnishes valuable services.

                  His company does not receive any subsidies.

                  His company did not take and PPP money.

                  He has hired numerous African Americans.

                  Although he had the good fortune not to matriculate at an Ivy, he has hired Ivies (though to a person, he claims they are the least productive)

                  He has a stunningly beautiful wife.

                  He pays me to read and post here.

                  1. It was Howie Carr who said that — not Michael Dukakas….

            2. “That’s not what arguable means.”

              The argument is that professors shouldn’t do things that offend their students, and that the redacted slurs offended their students. It’s the same argument for unredacted slurs.

              “There were Qs still “arguing” at 11:45 AM that Trump was going to return to the White House…”

              I’ll take your word for it.

              1. Why the tortured false equivalence? I’m confident you agree there isn’t a plausible good faith argument that a sarcastic “I suspect she’s afraid I would become homicidal” should be cause for discipline. So I have to assume you think there likewise isn’t a plausible good faith argument against using the unredacted, unexpurgated n-word. Like I said, I’m on Eugene’s side on that, and adamently so, but do you really think there isn’t a good faith counter-argument?

                1. “Why the tortured false equivalence?”

                  I’m not the one making the equivalence, it’s the students.

                  But the argument is the same for redacted and unredacted slurs, right? The argument is that the professors shouldn’t use them because they offend students.

                  So why is there a good faith argument in favor of banning unredacted slurs, but not banning redacted ones?

                  1. I’m not the one making the equivalence, it’s the students.

                    It’s a ridiculous equivalence. I know it and you know it. Yet you’re dignifying it by challenging me to engage it, as if we don’t both know it’s ridiculous. Just because some idiot student makes an idiot argument doesn’t mean we have to pretend it’s serious. I don’t. Why do you? Just call it what it is and move on.

                    1. “It’s a ridiculous equivalence. I know it and you know it.”

                      You might think you know that it’s a ridiculous equivalence, but if you can’t articulate a difference, then you might not know what you think.

                      I mean, I think it’s ridiculous that professors should avoid saying “nigger” and “bitch” in the hypo. The fact that you can’t articulate a difference between using “nigger” and using “n_____” leads me to believe that I’m correct.

                    2. I’m perfectly capable of articulating a difference. I just didn’t think it necessary to insult your intelligence by spelling it out. But if you insist….

                      There’s no universally agreed standard, but the offensive of insulting language is generally understood as existing on a continuum from literal and direct to expurgated and attenuated: Calling someone an epithet to their face is more offensive than using it descriptively, which many consider more offensive than quoting it pedagogically or legally, which many (often different) people consider more offensive than using a redaction or expurgation. I agree with Eugene about when the value of using the literal form outweighs the harm. In most other situations, e.g., this discussion, I’ll use something like “n word” out of courtesy to those who are offended by any literal use, whether I agree with their opinion of its offensiveness or not. That doesn’t mean the descriptive use I avoid here is equivalent to the more offensive direct use I’d also avoid.

                      None of this is complicated. I think you know that.

    2. No. This is something far worse…

  3. His mistake was agreeing to talk to them. People have to get it through their heads that this is a witch hunt, and anything you say will be twisted until it can be used against you. Do not under any circumstances engage in communication directly with the inquisition, pose all answers and responses through a lawyer.

    1. I think it’s important for the professor to engage with the other side. At the very least, he’s drawn them (and his University) into behaving unreasonably, and that’s going to benefit the public discussion. What has he lost?

      1. NJ,
        1) There is no reason to speak for more than 30 minutes, especially when the professor had no reason to expect good will from the BLSA rep.
        2) The professor should have had an agreement to record the conversation as a condition of agreeing to speak.
        3) He should have said little beyond a prepared statement, and left the bulk of the time to listening

        1. If he had done that, he would not have exposed the irrationality of the other side, and his own institution. This is important work.

          1. How often do you think people interrogated by the Inquisition are successful at exposing the Inquisition’s irrationality?

      2. I want to agree with you. Badly. Open discussion and mutual respect for holding opposing positions should be the norm.

        But this is like talking with a Trump supporter. Talking to a cat’s butt would be more productive.

    2. “His mistake was agreeing to talk to them”. Indeed
      And worse, he did it alone, in a fully recorded format so that selective editing of 5 hours dialog could produce a smear. After 10 minutes tops state simply that ‘respectful minds at this point must now part to attend to other tasks, and that for now we must each mull over what we have learned from each other’.

      Best always to raise the costs to the administration. Welcome a meeting, but insist that it be attended by the dean, department chair, and a few HR folks. No chance it goes crazy long then.

  4. “An excerpt, though you should read the whole thing”

    Unless I’m missing something, you have to sign up for a “free trial” to do so.

  5. “Policies of mandatory investigation are warranted when students report threats. But there needs to be an available mechanism of summary dismissal when such reports turn out to be frivolous.”

    Of course, since we have no idea what the student alleged, we have no idea if the report is frivolous.

    I wonder what the quantum of proof should be, if a student reports that a professor says something genuinely threatening?

    Preponderance?

    1. This should have been summarily dismissed under the give me a fucking break standard.

      1. As I said, we don’t know what the student claims that the professor said.

        Assuming that the student claimed that the professor said something genuinely threatening, should we evaluate the claim based on the preponderance of the evidence?

        1. That is the usual standard in such cases. The Porf was stupid not to have the interview recorded

          1. Professors should record all their interactions with students to avoid false accusations? That’s one approach, I guess.

            1. When you have a conversation with a person who has a vested interest in accusing you, absolutely or have a witness whom you trust on the zoom call. Just like you would meeting with a problem employee.

            2. How about body cameras for everyone at all times?

        2. “should we evaluate the claim based on the preponderance of the evidence?”

          How do you do that in a case where there are exactly two eye-witnesses, zero physical evidence, and the two witnesses disagree?

          “Did too!”
          “Did not!”

          50/50 split.

          1. Well, normally you would have a fact-finder make a more or less subjective assessment of which party is more credible.

            I know many people are in favor of such an approach for campus disputes like this one.

            1. Fact-finding is much easier with a recording as evidence. Just as is the case with police body cameras

            2. “Well, normally you would have a fact-finder make a more or less subjective assessment of which party is more credible.”

              How can any sane person call that “preponderance of the evidence” with a straight face?

              No, that’s not “preponderance of the evidence” that’s “stupid wild ass guess” territory.

  6. And the purge continues.

  7. So there are three things that I want to say before getting to my main point.

    First, we seem to have only one “side” of the story. Much like reading the allegations of a complaint, we may not be privy to what actually happened, and even accurate facts can be presented in a misleading way.

    Second, back in the day when I lived in a University town and dealt with faculty issues on occasion, it was usually the case that a given offense by a faculty member rarely seemed to merit the actions by the administration. What I quickly learned is that any given episode was usually the final straw, and that there had been a long pattern of misconduct that had been swept under the rug or ignored prior to that. Again, this was just my experience. But you’d often end up with a faculty member who was outraged that X was causing them problems, while the rest of the faculty would be thinking, “Oh, but that’s because you aren’t remembering getting away with A, B, and all the way up to X.”

    Third, a four hour zoom call? There was nothing good that could come out of that. The chutzpah of certain people who believe that they can talk themselves out of problems never ceases to amaze me, but luckily it happens- otherwise, the clearance rate for crimes wouldn’t be as high as it is. 😉

    Now, with that out of the way … this is both stupid and outrageous. Assuming the facts are true, dealing with this type of hypothetical is part and parcel of the law. This is a standard issue in employment law. If this is accurate, this is unjustifiable and wrong, and I hope that the complaining students fail the bar and are never employed such that their stupidity and thin skin will hurt more people.

    1. Except X here should be entirely unobjectionable, so there can’t possibly be an A, B, … that he ‘got away with’, because anything less than X also couldn’t be objectionable.

      1. Again, I am only stating my anecdotal experience from a decade ago.

        I just had far too many times when I saw something and thought, “Wait, that’s it? You’ve got to be kidding me …” and then the full story came out. Once bitten and all that. It was just a very peculiar was that this university worked, and based upon my conversations with other people- they way that most did.

        I would draw your attention to my final paragraph.

  8. Ha ha. Woke prof didn’t think the leopards would eat his face off too.

    1. No bastion of academic freedom and inquiry should ever submit to the demands of a racial identity organization that are predicated upon the use of a racial slur, expurgated or not, expressed in a law school exam hypothetical.

      Even if the racial identity organization is the Black Law Students Association. In a free society, there can be no special pleadings for negroes. To think otherwise, is the quintessence of racist bigotry.

      1. “bastion of academic freedom”

        We are talking about a 2021 US university, not a unicorn.

        1. Yes, we are talking about Oberlin, not Oxford University, circa 1900.

      2. “No bastion of academic freedom”

        Nice you still believe that exists.

  9. Never talk to a racist.

    1. If people adopted that approach, you’d be very lonely.

      Wait, I suspect you already are.

  10. I wonder if people think that the school should have reacted differently to an exam with the slurs unredacted.

    The claim used to be that we should avoid offending people, and if people say that they are offended, we should apologize and avoid repeating the offensive behavior.

    Now that it’s been made clear that even redacted slurs are offensive to some people, I assume that decent people should avoid using redacted slurs right?

    1. Even with a blackened redact bar, the same “anti-racists” would have reacted the same way. They want a fight with no holds barred. (for them that is). The white prof is to fight with two hands tied behind the back.

    2. Now that it’s been made clear that even redacted slurs are offensive to some people, I assume that decent people should avoid using redacted slurs right?

      Again you’re acting as if all offenses are equal, requiring equal consideration. As reasoning animals we’re capable of drawing reasoned distinctions. If you tell me it offends you to be called tall, I’ll avoid calling you tall because I’m not a dick. That doesn’t mean I have to adopt the same concern about using tall in general conversation that I would a word with inherently offensive meaning, or one which for whatever reason gives offense to broad swaths of the population.

      1. “That doesn’t mean I have to adopt the same concern about using tall in general conversation that I would a word with inherently offensive meaning, or one which for whatever reason gives offense to broad swaths of the population.”

        But we’re talking about mentioning, not using, a word in general conversation. Generally people feel quite free to use potentially offensive language in a non-offensive context all the time.

        The argument for avoiding unredacted slurs in a non-offensive context is that they offend people. I don’t think they should, but I guess that really doesn’t matter. But I don’t see why people would be less offended by unredacted slurs than by redacted slurs.

        1. You can’t imagine why somebody would take offense at something you or I might think they ought not to? Have you never been married?

  11. The argument that he’s a homicidal threat is a lot better supported than the allegations against Brett Kavanaugh were. But that didn’t stop any Democrats.

    1. Wait, are you talking about the allegations from the witness that President Trump said were credible and troubling? I did not think there was enough to disqualify him…not by a long shot. When you say “Democrats”…are you including Trump in that group???

      1. I did not think there was enough to DQ [Kavanaugh]…

      2. If you don’t pretend to take every dramatic story seriously, then you hate women and think rape is awesome. So it’s only smart to hear everyone out and publicly show an open mind, if only because some other charges aren’t bogus.

        I was the one saying, at the time, that even if the story were true — and it was always mostly understood that it wasn’t true — that the whole incident amounted to dumb teenage hijinx. Something that could have gone very wrong, but didn’t. Predators persist. And no one in the story spent even 2 minutes persisting. So even if it happened, no one was guilty of anything more than horseplay and teenage hurt feelings. Not something worth more than a sheepish apology 30 days later, let alone 30 years.

        Giving the charges a fair hearing is what the Democrats might have done instead of sitting on them for months and then using them to craft an obviously bad-faith melodrama at the last minute.

  12. ha ha..boy how life comes back at you…cultural marxists started this horse poop in the 60’s and now the advocates are finding out once the “target group” is neutralized a new one needs to be found..and usually it is a minority which is overepresented in anything…welcome to what you folks in academia and the media created..first they came for the Irish, then the Italians….

  13. ” Behavioral Threat Assessment Team “

    The star chambers that arrived a dozen years ago in response to the Virginia Tech Shootings are now lynching professors too — it was only a matter of time,

    I hope he sews the shyte out of this student for defamation and leaves the BAT in the middle. These BATs are truly evil.

    1. They make Stalin & Hitler look like Boy Scouts by comparison — I don’t sat that lightly…

  14. The professor needs to understand that he should never joke or say anything flippant in dealing with these people. If he says a word with negative connotations, there will be no context and he will be accused of intending to be and do everything that word implies. It’s just the way it is.

    You don’t joke with people who think you’re a dangerous terrorist. Any word you say that could possibly be associated with terrorism will become proof you are.

    He should sue the student for libel. And not speak to him further rxcept through his lawyer.

    And not speak to anyone who accuses him of anything unless he agrees to have the conversation with him.

    Remember, the student is the police officer certain the suspect is guilty and eager to use anything the suspect says to show that. The professor is the suspect. A suspect talking to a police officer without a lawyer present under those circumstances is crazy.

  15. The conversation with him recorded.

  16. Question. Given that it’s clear that the university will believe a black student over a white professor regardless, should the professor sue the student for defamation? Why or why not?

Please to post comments