The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In January the University of Illinois at Chicago's School of Law disgraced itself with its foolish persecution of Jason Kilborn, a professor who was accused of racism for asking students to address an ordinary hypothetical, of a kind they are likely to encounter in normal legal practice. That episode has now ballooned into calls for his firing, with an ill-informed Rev. Jesse Jackson leading protests against him. And the university, while it refuses to fire Kilborn, is continuing to punish him for things it knows he didn't do.
The trouble started when, in a "Civil Procedure" exam, Kilborn asked whether a hypothetical company, sued for discrimination, must disclose evidence to the plaintiff. In the test's scenario, a former employee told the company's lawyer "that she quit her job at Employer after she attended a meeting in which other managers expressed their anger at Plaintiff, calling her a 'n____' and 'b____' (profane expressions for African Americans and women) and vowed to get rid of her." The exam did not spell out those words, which appeared exactly as you just read them. (This was just one of the test's 50 questions.)
Lawyers face such situations all the time. The question was entirely appropriate. One student, however, declared that, on seeing the sentence, she became "incredibly upset" and experienced "heart palpitations." The Black Law Students Association demanded that Kilborn be stripped of his committee assignments, denounced him on social media, and filed a complaint with the university's OAE (Office for Access and Equity)….
On February 17 the OAE sent Kilborn a notice of "investigation into allegations of race-based discrimination and harassment." Evidently someone had been collecting such allegations, because there were many new ones. They included the exam question, the comment to the student (which the notice mischaracterized as "a comment that you would 'become homicidal' if you read the petition"), and—this claim appeared for the first time—"referring to racial minorities as 'cockroaches.'" Because the notice said nothing about when he was alleged to have said that, it was impossible to respond.
The "cockroaches" claim has since become the central grievance against Kilborn. It is provably false….
The discussion in which Kilborn used the word took place on January 23, 2020, nearly a year before the exam that started the trouble. That date was revealed to Kilborn for the first time in the findings letter, and he only recently obtained the school's recording of that class. In that discussion, he tried to get the students to place themselves in the unfamiliar mind-set of defendant-company directors making a cost-benefit assessment of settling what they considered frivolous litigation to avoid expensive discovery. A student asked him whether it would be better for those directors to defend such lawsuits and collect victories, thereby deterring future litigation. Kilborn replied:
The fact that other plaintiffs see that one other plaintiff lost isn't a disincentive. If it were, frivolous litigation would have ended long ago, because lots of plaintiffs have been pushed to the wall and lost. You don't hear about those stories in the media. You hear about idiot people winning $1-million verdict against Subway for having 11.5″-long sandwiches. That's what makes the press, right, that Subway lost. Not that they win against this ridiculously frivolous case. That wasn't in the media, only in the legal media, maybe, if you were paying attention. And that's the problem. If they win, no one hears about this. They only hear about it if they lose, and God forbid that, then all the cockroaches come out of the walls, they're thinking, right? …
There is no reasonable way to read his statement as directed at minorities. University officials not only ignored this; they appear to have actively concealed it. No wonder the report that was given to Kilborn was so vague about what he was supposed to have done. …
Kilborn has recently settled a legal claim against the university (in which, astoundingly, the school unsuccessfully tried to get him to sign a nondisclosure agreement forbidding him to comment on his case). He told me that, a few days after the settlement was announced, "my interim dean turned around and denied me a first-in-several-years across-the-board 2-percent 'merit' raise, despite my (by her own admission) extraordinary scholarship production and service. I got her to admit in writing that she had denied me this $3,000 raise SOLELY due to my purported violation of the discrimination policy on the basis of OAE's findings. I had had quite enough by that point." Now, he says, "I feel I have an obligation to carry forward this fight. I'm far less vulnerable (I hope) than many of my colleagues across campus, so I have to fight for them."
We are dealing here with administrators who seem to regard truth as an inconvenient obstacle and who appear not to mind convicting the innocent….
It is embarrassing to have to say it, but the antiracism movement needs to regard truth as its friend. Episodes like this tend to discredit it and to reinforce the notion that complaints of racism are overblown.