Things Get Worse at the University of Illinois at Chicago

The University of Illinois at Chicago seems unable to correct course and respect the academic freedom commitments that it has made to its faculty. For a year, the university has been hounding one of its law professors, Jason Kilborn, at the behest of some of its students. The fracas started when Kilborn included a hypothetical on his civil procedure exam involving an individual telling an investigating lawyer that former co-workers "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." He has been suspended from teaching ever since as students demand that he be fired.

He reached an agreement with the university that would have settled the matter, but the university reneged on that agreement and the chancellor of the university weighed in demanding that the punishment must continue until morale has improved. The Academic Freedom Alliance wrote to the university in November explaining the damage that the university was doing to academic freedom protections.

Brian Leiter has since broken the news of the university's latest demands on Professor Kilborn. His post includes a link to the letter from the university to Kilborn's attorney. As Leiter notes, the University of Illinois at Chicago "has gone crazy."

Last Friday, the university informed Professor Kilborn's lawyer that Professor Kilborn would be suspended from teaching this Spring at UIC's John Marshall Law School (although still paid, and still required to perform administrative duties) so that he can participate in rather time-intensive "re-education" programs:  Download 21; 12.16 from Alsterda

Professor Kilborn will be subjected to an 8-week indoctrination course--20 hours of coursework, required "self-reflection" (self-criticism?) papers for each of 5 modules, plus weekly 90-minute sessions with a trainer followed by three more weeks of vaguely described supplemental meetings with this trainer.  Since the trainer will provide "feedback regarding Professor Kilborn's engagement and commitment to the goals of the program," disagreement or skepticism about the content of the program is presumably not welcome.

This is simply chilling.

Professor Kilborn is represented by an attorney supported by the Foundation for Individual Rights in Education's new faculty legal defense fund. Back in November, when the university initially reneged on its agreement with Professor Kilborn, FIRE wrote:

This is, to put it plainly, a new low for UIC. The university must immediately remove this unjustified requirement. Should it fail to do so, FIRE is committed to using all the resources at its disposal to defend professor Kilborn's rights.

It seems unavoidable that Professor Kilborn will have to vindicate his rights in court. The University of Illinois has disgraced itself in this matter.

Comments

[DaivdBehar]

The IRS Non-Profit Office must mandamused to revoke the tax exemption of this treason indoctrination camp. Please, start to do that. One revocation, and the entire nation of universities will fall in line, scrambling to adopt the Chicago Principles. Those should become a shield against revocation.

[The Drill SGT]

Did you miss the part about this being a state University. It's part of the Illinois government.

I agree some adults need to slap some sense into the college. That should be their funders in the state legislature. Maybe a bill that directs that eventual settlement shall come out of the Chancellors office funding and stating that the adminstrators are operating outside the scope of their employment.

I have no idea if the later would have any value in court, but it might get their attention

Unfortuntely, the Illinois legislature is likely ok with this vendetta

[IPLawyer]

Despite this blog's insistence, I found I was able to have a perfectly adequate legal education in the past 10 years, without any of my professors using any racial slurs on any exams.

[Cal Cetín]

He used dashes, not slurs.

[Ben of Houston]

First, I will agree that not using foul language is an acceptable choice. However, if a student is unable to work due to mildly harsh language that would be heard in any dining hall at any high school in the country, they are unable to function in society, much less in any number of settings that lawyers are required to work.

Continuing, the professor did not even use the foul language, but self-censored in a way that would have been allowed on prime-time television in the prudish 80s. I cannot accept the idea that this people are taking actual offense. It's a clear and transparent attempt to destroy a professor's career on the flimsiest of pretexts.

This is backed up by the fact that these "compliance plans" are obviously insane with the intent of being rejected. People routinely get off lighter for actual sexual assault and racist tirades against students. This is clearly an attempt to fire a professor contrary to their contract for personal or political reasons.

[IPLawyer]

Ben, not sure where you went to highschool, but I went to Bronx Science and people there did not use racial slurs against each other such as was used here. Also, your appeals to the 80s and the repercussions of sexual assault seem confused, if not entirely misplaced. Are you saying the 80s was some sort of bastion for civility that we should look to it to determine how we should conduct ourselves today? Similarly, what does sexual assault have to do with it? Isn't sexual assault, if anything, likely under-punished due to being under-reported? I fear your response is going to be histrionic culture-war nonsense. Oh well.

[phoqueue]

I don't know about Ben, but I am saying that IPLawyer and Friends seek out incidents about which they can falsely claim offense in order to further their social and political agendas. And if you challenge them, they appeal to their malignant show of affected empathy to attack you.

[IPLawyer]

Couldn't have been me as I didn't have any professors use racial slurs while I was at law school. Fascinating that you can't imagine a position between being outraged on either side here. Maybe you should go back to school.

[DaivdBehar]

IP. You attended Bronx Science? What the fuck happened to you? You started smart. Now you are a lawyer dumbass, dumber than kids in Life Skills class, trying to crush innovation and to bring the economy to a grinding halt. You are making $600/hour in worthless, garbage rent seeking, however.

[Bob from Ohio]

My sister-in-law's boyfriend/partner went to Bronx Science.

Based on him and ip here, Bronx Science is very overrated

[m4019597]

One thing I never do when bragging is announce a high school achievement from decades ago.

It would distract from all the shit I could brag about as an adult.

[Ben of Houston]

Are you going to rebut my arguments or just preen?

I reiterate
First, the professor did not use any profanity
Second, there is no reasonable way that anyone can or should be offended by such minor language even if it was uncensored because...
Third, these were used in an appropriate setting and in a way that any lawyer would be expected to encounter in daily practice. No students were targeted.
Fourth, censoring it any further would make it an invalid legal description. "Person A used foul language" is not detailed enough (as there are many uncouth words but some are considered worse than others). Therefore, including the words used is not only an acceptable choice but arguably NECESSARY to properly answer the question.

Finally, are you truly pretending that this isn't a transparent pretextual firing?

[DaivdBehar]

It is nitpicking and gotcha by students, empowered by a sicko administration. They are fools. However, what is the real reason they can do this? All PC is case, and 100% the fault of the scumbag lawyer profession. Ultimately, the school is trying to avoid ruinous litigation allowed to proceed by scumbag, rent seeking federal judges. If anyone needs an ass kicking in this situation it is the scumbag lawyer profession. We are sick of this toxic occupation.

[You're not smart]

Lier

[Briggs Cunningham]

I went to Bronx Science

That certainly explains a lot. My condolences on your wasted youth.

That being said, if you are going to practice civil rights law, hearing accounts of people using racial slurs is something that you are going to have to do. Civil rights claims often involve the allegation of the use of racial slurs. Including such slurs in an exam hypothetical involving civil rights labor law is entirely appropriate.

By your logic including an accusation of a rape would be inappropriate in a criminal law exam. It is a good thing you do IP law and nothing that might involve fact patterns that offend your delicate sensibilities.

Again, my condolences on Bronx Science. You probably should be more careful about telling people that. If you are looking for sympathy, tell people you are a furry or something. They will be more accepting.

[Noscitur a sociis]

This story gives me concerns about the adequacy of the education these students are receiving, but if they've seen racial slurs on any exams, it wasn't in Prof. Kilborn's class.

[IPLawyer]

Noscitur, how is that the case? Do you find that the use of racial slurs was directly related to the adequacy of your legal education?

[Sigivald]

I can't speak for noscitur, but I can say that I think he means that "students that can't stand a hypothetical where the accused is said to have called someone n---- and b----, both dashed-out in the original, have been radically poorly served by their educations", in that they should be able to see those two dashed-out words in sucha context without feeling threatened, abused, or otherwise needing Help With The Mean Professor.

They will absolutely never be able to be effective legal professionals if that offends them at all, let alone so deeply they need the professor fired.

[IPLawyer]

I guess I'm confused because dealing with racial slurs wasn't a topic I ever covered in law school. I have been an effective legal professional since I graduated, and I have not encountered the use of racial slurs in any of my cases nor in my general professional life, so my belief is that your response is entirely overblown.

[Noscitur a sociis]

You've never read Matal v. Tam?

[IPLawyer]

In my professional career? No. Yes, we read an excerpt in TM class. Yet, I was able to have a perfectly fine education without the professor making a hypothetical around the use of racial slurs...

[rsteinmetz]

From you handle I assume you practice Intellectual Property Law, copyright and patents and stuff so you don't deal with the kinds of matters where these things come up.

As a hypothetical how would you handle a case of employment law where your client was bombarded by the racial slurs and epithets that you refuse to mouth or even write?

How could you represent an African-American in a case where police officers beat and threatened your client with death will showering vile racial slurs on him?

How could you make the case to a jury about how damaging or distressing these words are when you won't even inform the judge and jury what was actually said or written?

[IPLawyer]

rsteinmetz, I think the burden is on you as to establish how reading a racial slur in a hypothetical on a school exam in any way prepares you to do what you asked of me.

I'll note that attorneys, generally, do not have to take cases they do not want to take. Perhaps those students wouldn't be able to handle those cases. I went to law school and it did not prepare me to handle every kind of conceivable case.

Everyone knows law school doesn't really prepare you for practice at all. One is considered a "young" attorney until 7 years of practice has been achieved. To be clear, that's 7 years AFTER having graduated from law school and passing the bar (which was another exam entirely devoid of racial slurs).

Why is it that when a professor is in trouble for using a racial slur on an exam, all the commentators on this blog hem and haw about how law school isn't preparing students for being some sort of radical civil rights or employment attorney? Sorry, but it's totally disingenuous.

People here are just angry that some professor was in trouble for "not even using" a slur, because he replaced some letters with dashes. That's all that's going on here and that's all I intend to expose with my comments. These same folks who are talking about how this is some sort of radical circumstance are left to the examples of gulags and re-education camps to serve their "points" and somehow don't realize they sound as silly as the students.

[David Nieporent]

I'll note that attorneys, generally, do not have to take cases they do not want to take.

…if they're independently wealthy.

Otherwise, they take the cases assigned to them. Or if they hang out their own shingle, whatever comes in the door, typically.

After many years of practice, they can decide which cases to take.

[David Nieporent]

Why is it that when a professor is in trouble for using a racial slur on an exam,

…which of course has nothing to do with this incident…

all the commentators on this blog hem and haw about how law school isn't preparing students for being some sort of radical civil rights or employment attorney? Sorry, but it's totally disingenuous.

When you're in law school, you probably have an idea what type of law you're interested in practicing, and very little idea what type of law you're actually going to be practicing. And of course one doesn't get to tell a law school (or the board of bar examiners) "I'm not going to practice in that area, so I want an exemption from studying it or proving my knowledge of it."¹ So I think you're the one being disingenuous.

As, of course, is a student who claims that seeing a reference to a slur (and not even the actual slur!) was mentally debilitating.
​
​
¹Yes, I know there are electives. But there are also mandatory areas of study regardless of one's legal plans. I had to take Trusts & Estates, which was many hours of my life I'm not getting back.

[IPLawyer]

David, I don't do trusts and estates cases. I chose to work at a firm that doesn't do trust and estates cases. Lawyers are free agents and they are free to navigate their lives like any other free adult in the world and the license does not obligate them to having their personal aggrievances approved by the volokh conspiracy.

Maybe these baby lawyers will never have careers because they can't engage with racial slurs (I find this comically doubtful, but still within the world of possibility), but it's because that's their choice to make. The reality is that both you and I know that the professor using the racial slurs isn't the difference between the world where these complainants become successful attorneys and the world where they don't. People here need to get a grip sometimes.

[IPLawyer]

"When you're in law school, you probably have an idea what type of law you're interested in practicing"

David, there is no area of law described as just the purview of racial slurs that these students are being so drastically deprived of that your post makes any sense. As I said simply in my original post. I went to lawschool and didn't have professors use racial slurs and my legal education was apparently perfectly adequate if not good. If I ever get a case involving a racial slur, whether or not my professors ever used a racial slur will be completely irrelevant.

[rsteinmetz]

I'm not surprised that you failed to answer my hypnotical directly but rather responded that you don't need to do that sort of thing. Leaving those poor unfortunate people without your legal services.

Many idealistic young lawyers want to become public defenders or follow similar types of social advocacy, many eventually move on to other pursuits. But following that path they will of necessity come into the rather unfortunate circumstance where such language is not only common but necessary to provide the legal help their clients need.

That some lawyers by choice or birth can avoid such circumstances is, I suppose, good for them. It is however a disservice to the students to pretend such things don't happen.

[IPLawyer]

"That some lawyers by choice or birth can avoid such circumstances is, I suppose, good for them. It is however a disservice to the students to pretend such things don't happen."

I don't think anyone is pretending, and the whole my premise of my point, which you refuse to engage with and instead give me hypotheticals about radical activists, is that you apparently CAN have a perfectly fine legal education without racial slurs being used on tests.

[Kazinski]

Let's just use as a hypothetical a recent case that some people may have heard about:

A 17 year old carrying an AR-15 shot a unarmed rioter, that witnesses claimed was acting threateningly and erratically on multiple occasions that night.

One video clip shown to the jury showed the rioter yelling "shoot me now, nigger", repeatedly to armed people protecting property at the riot.

Now I ask you was it appropriate for the clip to be shown, and quoted extensively at the trial?

And if not, what kind of lawyer or judge could you be if you suppressed it?

A lousy one, because either you are going to get the conviction reversed if you supress it as a judge, or you are going to get your client convicted if you are a lawyer.

[Michael P]

Judging from comment history, his handle is a reference to verbal and/or biological incontinence.

Apparently, some would-be lawyers are too fragile to deal with a world where people say bad things about their clients.

[IPLawyer]

Weird how you can't distinguish the difference between me pointing out there is no connection between your professors using racial slurs and being a successful attorney, and me being offended at the use of the words. Even more amusing as I've never expressed offense at the use of the words.

[David Nieporent]

There is a connection between being able to handle your professors' using racial slurs and being a successful attorney.

[IPLawyer]

Yes, possibly, David. But if you read any of my post you'll note I never challenge that. It's a completely different statement from "I am a successful attorney and my professors never used a racial slur" to which everyone these responses flow. That's a basic LSAT logical reasoning question that everyone here fails because they've got such a hard-on for dashed-out racial slurs.

[Brett Bellmore]

The professor didn't use a racial slur. The professor referred to somebody else using one.

[Don Nico]

But...but... he never ever heard those words or references thereto in law school...
Pathetic

[David Nieporent]

Matal v. Tam was three years ago. If you were still in law school three years ago, maybe you're not really in a position to discuss effective legal practice and education yet?

[IPLawyer]

I'm sorry, do you think there is going to be some sort of dramatic case I experience in my future involving a racial slur that I will not be able to handle because my professors did not use racial slurs?

David, you generally seem like a smart guy here. What a stupid comment this time.

[VinniUSMC]

David, you generally seem like a smart guy here. What a stupid comment this time.

I don't agree with David often, but this is comical. You generally come across as a person who knows very little outside of IP law, and given that promise, probably not that much within. I'm sure David definitely values your opinion.

No one said that it isn't possible to be a lawyer without having come across racial slurs in school. What's been said is that people who get the absolute vapors over the mere mention of racial slurs are probably going to be shitty lawyers, with the logical acumen of you: "That's a basic LSAT logical reasoning question that everyone here fails because they've got such a hard-on for dashed-out racial slurs."

[IPLawyer]

VinniUSMC, a number of people here said exactly that, actually. I do not disagree about people that get the vapors. But what has been said in this thread is not that. Feel free to re-read it.

[Noscitur a sociis]

No, I think your perspective on what was or wasn't valuable in your legal education may look different when you've been practicing for 10 years than when you've been practicing for 1 or 2.

[phoqueue]

Notice his rhetorical strategy here and elsewhere. He tries using appeals to necessity and directness for dismissing everything he doesn't like. It's an all-purpose attack you can use anywhere the conditions aren't explicitly identified and accepted.

No matter what position you take, if he disagrees, he'll say, "Well, it wasn't NECESSARY to do that." "The professor was ABLE to take some other course." "That's not DIRECTLY related."

[IPLawyer]

They are great points, I never defended the students. Maybe you should take your head out of your ass?

[mulched]

Thanks for the motte and bailey demo, IP.

[IPLawyer]

It's not motte and bailey. If it is not necessary to use racial slurs in educating lawyers, then questioning its inclusion in the classroom is entirely reasonable and clearly within the purview of a law school administration. I thank you for responding to the post you did. Please re-read it as much of it applies to you as well.

[mulched]

You just did it again.

Motte: It's not necessary to use slurs in legal education.

Bailey: The punishment is within the purview of the school.

As I said, it's a great demo. Don't stop.

[Don Nico]

He won't stop... he's a broken record.

[Ben of Houston]

Yeah, this guy reminds me of the Flat-Earth Trolls. Not the genuine believers, but the one who argues just for the sake of arguing and takes pleasure in the confusion they make.

After reading enough of his sophistic drivel on this thread, I've decided to mute him. I suggest you do the same.

[Noscitur a sociis]

In the unlikely event that any of my classmates had pretended to be offended in similar circumstances, the administration in my school would have counseled them about professionals norms, rather than enabling them and illegally retaliating against the instructor.

The fact that the administration here believed differently raised questions in my mind about the caliber of the education involved. And were I less charitable, your continued insistence on claiming that this episode involves the use of a racial slur might raise some about your own.

[IPLawyer]

Sorry, I don't see anything there about how the actual adequacy of their education is related to the (debated) use of racial slurs?

[Noscitur a sociis]

That is a great point, I never that there was a relation. Maybe you should take your head out of your ass?

[IPLawyer]

If there is no relation... what's the problem?

[David Nieporent]

The problem is that a law professor is being professionally persecuted based on frivolous arguments.

[IPLawyer]

Well, I'm not sure that's a problem because I'm pretty sure you can have a perfectly adequate legal education without using racial slurs. I think therefore it is reasonably up to his school as to what extent they want to allow this kind of stuff. But that's completely besides the point because we were talking about the adequacy of their education, not the professor's persecution.

[VinniUSMC]

I pity anybody who has the misfortune of hiring you. Your logical abilities leave much to be desired.

[IPLawyer]

Spooky, Vinni! I'll have to question everything now.

[Kazinski]

I thought lawyers were a force for social good. Shouldn't lawyers be seeking out cases where racial epithets are used so they can litigate them and bring justice? And seek out instruction that prepares them for it?

But I already know your answer: it's not necessary.

[weibullguy]

I mean, the first question I always ask before retaining the services of an attorney is, “Were you exposed to racial and/or sexist slurs in law school?” If the answer is no, I’m taking my business elsewhere.

[mlwjr]

Well it is UIC after all. In Chicago I would more expect this at DePaul, but not at all surprised

[phoqueue]

Thank God you were spared from the sight of dashes.

[virginia]

I presume you've read the post and know that the professor at issue didn't use any racial slurs on his exam. That fact aside, what's your point?

[IPLawyer]

I'm not going to wage into the moronically-trivial debate as to whether inserting dashes into a word that everyone knows is suddenly not "using" the word. It wouldn't fly anywhere else, but for some reason carries water here with you and a few others. Fine. My point? Why do people here keep insisting that a professor (not) using racial slurs are an integral part of a legal education?

[phoqueue]

Add "not integral" to his list of generic-objection ammo.

[IPLawyer]

Feel free to make a point.

[VinniUSMC]

After you.

[virginia]

There's no "debate" to wade into. He didn't use any racial slurs. And few if any commenters have insisted that a professor using either racial slurs or expurgated substitutes for racial slurs is "an integral part of a legal education." They've insisted that the substance and form of the exam question at issue fell well within the bounds of reasonable pedagogy, and that both the reaction to the question and the university's handling of that reaction fell well outside the bounds of reasonableness. With which of the points in the sentence preceding this one do you disagree?

[Squirrelloid]

Even if he had typed out the full word, he wouldn't have 'used' the word. He would have 'mentioned' the word (as it's a hypothetical quote). The use-mention distinction is pretty important to practice as a lawyer (and many other professions besides).

But he didn't even type out the full word. "N____" isn't a slur. (Depending on context, it needn't even refer to a slur. Certain periods of literature refer to people by first initial followed by a dash, iirc). Pretending it is the slur itself, much less a use of it, belies all logic.

[LadyTheo]

Geez, I have been called a b**** and a c*** many times in my decades of life and yet somehow manage to soldier on without doing much of anything other than rolling my eyes at the name-callers. Being impervious to such things strikes me as a very useful life skill.

While you may have gone through life without encountering foul language/slurs, many people don't. And while I am not an attorney, I would guess that anyone going into employment law may well encounter instances of racial and sexual slurs being tossed about. After all, a hostile work environment seems to be one of the major issues to be addressed in employment law, no?

So your repeated insistence that YOUR experience is dispositive seems weird to me. The whole point is that these students will have to deal with this type of thing in real life. Employment Law is probably not a required course in law school, so if they are taking it, they must have an interest in it. How will they function if a client comes to them and says, "Someone is repeatedly calling me a n***** at work"? Will they say, "OMG, you will have to get another lawyer; I am going to see my therapist?"

Please. You seem to me to enjoy being deliberately obtuse and tendentious. To what end?

[IPLawyer]

"To what end?"

Feel free to read any of my comments and then respond to things I said in them. I never said I went through life without encountering slurs.

[VinniUSMC]

You refuse to engage with arguments, why would anyone bother re-reading your drivel?

[Brett Bellmore]

"Geez, I have been called a b**** and a c*** many times in my decades of life"

Out of curiosity, how are they pronounced? Are asterisks consonants or vowels?

[Squirrelloid]

There's a loud beep sound that obscurs everything after the first consonant. Doesn't your reality come with that standard?

[Don Nico]

Because he like insisting he is right... and he never heard those words in 10 years of studying law.

[Ben_]

Hard to imagine why anyone would want to hire a lawyer so intent on missing the point.

Who would want to pay to explain the most obvious concepts to such a lawyer intending not to understand them? What client would want to pay for tedious, tendentious and ultimately irrelevant and meritless arguments?

[Don Nico]

So what. This is another of your comments without content

[Bored Lawyer]

"Despite this blog's insistence"

PLANTED AXIOM ALERT!

No one says that a law professor must use language as used here (which was NOT a racial slur, BTW) to write an exam. He used very mild euphemisms with blanks after the first letter. Presumably the purpose was to make the example more true to life.

And guess what, lawyers are called upon to apply legal principles to all kinds of situations, including those in which people use much worse language. If these students can't stand reviewing a fact pattern with something so mild, maybe they should find some other line of work.

The administration of the law school should be scorned and mocked. Stop giving in to every infantile demand of today's students.

[Bob from Ohio]

Re-education camps were a standard Red Guard tactic.

Good to see that woke American Red Guards and their establishment enablers have respect for tradition.

[rsteinmetz]

Do they require the wearing of black pajamas and Non Las?

[Cal Cetín]

required "self-reflection" (self-criticism?) papers

"Fearing that I may have offended, I write this self-reflection.
Universities should expect better from their faculty.
Clearly, something must be done about my behavior.
Knowing this, I propose some self-reforms.
You are entitled to know what these reforms are:
Only respectful terms will be used in my hypotheticals.
Until racial wounds are healed, I will not discuss race."

[Longtobefree]

Declare The University of Illinois at Chicago a terrorist organization.

[Frank Drackman]

Must be a Chicago thing, our former POTUS Barry said the N***** word in his best selling Tome, you could even hear him say it on the audio version.

[Cal Cetín]

Pleas - musicians use the n-word all the time

https://www.youtube.com/watch?v=IoyvvEWHodk

[Cal Cetín]

More n-words

https://www.youtube.com/watch?v=j4vjVetZPpM

[Michael P]

What a racist! Lots of books have been written without using racial slurs, so we should send that author off to a re-education camp.

(Or so our resident incontinent lawyer might say.)

[DaivdBehar]

Diverses can say the N word with impunity. It is just diverse privilege. Thank the scumbag lawyer profession.

[Ben_]

"He reached an agreement with the university that would have settled the matter, but the university reneged on that agreement..."

Gee, I wonder what leads to the idea that leftists in positions of authority very often speak and act in bad faith?

[Ed Grinberg]

"The ends justify the means."

[Ben_]

Except they've more-and-more embraced the means and mostly forgotten about the ends.

[ReaderY]

I think there are times when it’s important to let people on the other side know that whoever stops harassing him now and publicly disclaims and promises to discontinue participating in the harassment will enjoy the benefit of not being ordered fired/expelled and permanently barred from campus when he wins his lawsuit, but that this is a very limited-time offer.

My understanding is that qualified immunity applies to recovery for past conduct, but not to injunctions for future conduct when there is a likelihood of repetition and continued injury.

[loki13]

It is certainly the case that many law students do not learn about sexual assault in CrimLaw because professors are afraid to teach it. IIRC, the law school I am affiliated with only had 1 of the 4 professors teaching it ... 15 years ago, and that professor retired.

This is bizarre to me, mostly because there was no actual slur on the exam! I can't even ... it would be like a professor trying to teach a concept in free speech and saying, "And the plaintiff in this case used the 'n word' as a racial slur." Okay?

It is fairly common for courses to have hypotheticals like this- I know when I took CivPro, they borrowed from different areas of law to try to get to the salient issues. This is a very common employment law issue (unfortunately).

I think most issues involving colleges are overblown by the usual hype machine, but this .... this is pretty stupid. The university should back down and defend the instructor, assuming the facts are as given.

[Ben of Houston]

You're ascribing too much credit to the university. This is so obvious a pretext that I don't know how the University's legal team can defend it. It's almost comic-book levels of behavior.

[Ben_]

For university education to continue to exist, universities are going to have to start offering separate classes leading to "safe degrees" for mentally and emotionally disabled people.

[weibullguy]

Or, they could just kick those whiny little b____s out before it gets that far. When did, “Wah, fuckin’ wah, my dog, my cat, my pussy hurts.” stop being the appropriate response to twats like the students in this case?

[Leo Marvin]

"the law school I am affiliated with only had 1 of the 4 professors teaching it"

Phil Johnson?

[A. Friend]

There should be a Title VII employment-discrimination claim in cases like this because black people who use this word would not be punished for doing so

[ReaderY]

To be specific, a Bostock claim.

[m4019597]

I never heard a black man call another a -igger. Nigga, yes. But not -igger.

There’s something ugly about ending the word with a hard consonant.

[Alpheus W Drinkwater]

The inability of commenters here to disagree with others without resorting to ridiculous personal attacks and infantile name-calling is what makes this comment section such a joy. Maybe try growing up.

[Jimmy the Dane]

I just watched an internet video of the fight in the Miami airport. Couldn't help but overhear (what appeared to be African Americans mostly) dropping both of the referred two words above much like they were an article like 'the', 'a', or 'an'. I suspect most of the handwringing over what were self censored references to offensive words is mostly for show and not some deeply seated belief that results in uncontrollable outbursts if the phrase is overheard.

[CraigL]

It is not just the n word over which students get the vapors. Law students have objected to even having material about rape discussed--how then can they later deal with such cases? Libel and defamation are inherently about "bad words" --again how can students learn from a watered down course? It would be like if med school would not discuss sex organs or breast cancer.

[Jimmy the Dane]

Funny thing was back in the 80's and 90's it was popular to insert unnecessary references to violence and sex into just about any type of media because the Christian Coalition types were seeking to censor that form of content. Many popular music artists of the time actually put curse words and other content into their work product just to thumb their nose at this form of censorship. Now, oh how have times changed, same old tune just different band on stage.

[Cal Cetín]

What we need is to revive the Christian Coalition and have it mount a campaign to prevent "egghead college professors" from using bad words. Then the universities would *have* to permit the bad words.

[Jimmy the Dane]

Sort of like some kind of double secret false flag operation....

I like the idea....

[ReaderY]

The court case should be interesting. Particularly the defense. Any reference to the word totally undermines the defense’s claim that they geneuinely believe the word is so offensive even a reference to it can’t even be used in the context of discussing a legal proceeding. If they use or even refer to the word, then that’s evidence their claims are completely pretextual and they don’t actually believe them themselves.

And if they don’t refer to the word, how can they say with specificity what the plaintiff allegedly did?

Either way it would seem they’re screwed.

[Cal Cetín]

I'm sure even Professor Volokh would agree this is the sort of case where evidence should be filed under seal so the public can't be corrupted by it.

Furthermore, the judges should deliberate on this case by themselves, without involving their young and vulnerable law clerks.

And we want judges who aren't too young and vulnerable, and simultaneously aren't too old and prone to heart attacks. All judges handling this case should be vetted to make sure they're in hale and hearty middle age. And they should have a doctor on standby just in case the evidence is too strong for them to bear and causes them to collapse.

With procedures like this, I'm sure the case can be handled safely and effectively.

[Rev. Arthur L. Kirkland]

Because you chose to address this issue at the Volokh Conspiracy, Prof. Whittington, I ask: What do you think of the strikingly White, remarkably male nature of the posts by Conspirators at this blog? Do you recognize the degree to which the lack of diversity among Volokh Conspirators who post defies the odds in modern America's legal academia? Does it bother you? Can you try to explain it? Do you believe it affects the content of this blog? For better or for worse? Was the White, male nature of this blog something that inclined you to participate (or generated misgivings)?

Thank you.

[You're not smart]

Rev. Artur L. Kirkland
You are a Racist

[Cal Cetín]

"the strikingly White, remarkably male nature of the posts by Conspirators"

1) How can being a white male be a bad thing, when you've admitted that you yourself are an example par excellence of a white male?

2) How can a post be white and male? Is this like Jewish science and Jewish music?

3) Maybe you can recommend a black law professor, preferably someone with a new book (or a revised edition of an old book) coming out? How about Randall Kennedy?

https://www.penguinrandomhouse.com/books/91619/nigger-by-randall-kennedy/

[santamonica811]

Cal,
I absolutely reject the proposition that Eugene himself is racists (based on a friendship with him of 30-odd years). But, on the other hand; I do think it's worthy of note that one of the absolutely most-respected legal blogs on the planet has had, and continues to have, essentially no women as regular contributors. Surely it's legitimate to point that fact out, yes? Now, maybe that fact ends up meaning nothing. But I would not criticize the Rev for making the observation. You certainly are not objecting to the factual accuracy, although I (and, I suspect, you) would dispute with Rev the meanings and/or lessons to be learned from this fact.

[Nestor33]

In our law school evidence class on Rule 403 (and its state counterpart), our professor used a hypo of a personal injury case where the victim testified that she remembered the (vanity) license plate of the car that hit her: RICH JD. Objection! In or out?
After a spirited debate, the professor then tweaked the license plate to RICH JEW.

It was spectactularly effective classroom instruction, crystallizing the rule for about 80 students at once, and I remember it decades later.

It's sad that we pretend that students are too brittle and sensitive to take this type of instruction today, and even sadder that many of those students play along with it, while putting a lot of energy and resourcefulness into seeking out alleged offenses.

[Cal Cetín]

Heh heh, yes, that was very illustrative of a key point, though I don't know if a professor would try to pull that today.

But I don't see the offensiveness. Jews are white (at least all the rich ones), and there's no harm in tweaking the whites with a little harmless taunting.

/sarc /sarc /sarc

[Miss Greenparker]

When is the University of Illinois going to outlaw any use of the N and B words, using First Amendment exceptionality, that is not identified as porn.

[edbeau99]

It would be much more efficient if university administrators and DIE (Diversity, Inclusion and Equity) directors got together and funded a single re-education camp for wayward professors. Kim Jong-Un could provide expert consulting advice, probably for a modest fee.