The Volokh Conspiracy
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Professor Can Continue with First Amendment Claim Over Denial of Raise for Including Expurgated Slurs on Exam
The Seventh Circuit so held yesterday; the case also involved other controversial statements besides the expurgated slur.
From yesterday's decision by Seventh Circuit Judge Thomas Kirsch, joined by Judges Ilana Rovner and David Hamilton, in Kilborn v. Amiridis:
This appeal arises out of a motion to dismiss, so we accept the well-pleaded facts in the complaint as true and draw all reasonable inferences in the plaintiff's favor….
Jason Kilborn is a tenured professor at the University of Illinois Chicago School of Law, where he regularly teaches a course on civil procedure. For the past decade, he has included the same question on the final exam. The question concerns a fictional former employee who says 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 question appears exactly like this, with the racial and gender slurs expurgated.
Unlike in prior years, students who took the exam in December 2020 were upset by Kilborn's use of the expurgated slurs and shared their displeasure with the law school dean. In response, Kilborn reached out to students to discuss the exam question. He sent a note of regret to his class for any distress caused by the expurgated references, exchanged emails with a student about the incident, and participated in a cordial, constructive, four-hour Zoom meeting with a member of the Black Law Students Association (BLSA).
During the Zoom meeting, the BLSA member asked Kilborn why the dean had not shown him a student petition criticizing the exam question. Kilborn replied that perhaps the dean had not shared the petition with him because she feared he might "become homicidal" if he read it. Kilborn made the comment in jest, and the conversation continued for another three hours without any indication that the student felt threatened or distressed by the statement. However, the student later told the dean and other University administrators that Kilborn had said that he "was feeling homicidal" or "would become homicidal."
Asserting that they feared a possible threat of imminent violence, University officials placed Kilborn on indefinite administrative leave, cancelled his classes for the term, and barred him from campus. Kilborn was ultimately released to unrestricted duty a few days later, but only after he submitted to drug testing and a medical examination. His classes remained cancelled. Kilborn believes that the University officials' concern about his homicidal jest simply provided a pretext to punish him for his exam question and to mollify complaining students.
The University's response to Kilborn's controversial exam question did not end there. It opened an investigation into allegations that Kilborn had created a racially hostile environment for non-white students. As part of the investigation, the University reviewed comments Kilborn had made in a class he taught two semesters earlier. There, Kilborn had discussed the relationship between frivolous litigation, plaintiff incentives, and media coverage:
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?
In the same discussion, Kilborn also remarked: "I'm not subjecting my corporate bottom line to that public lynching; I'm sorry, that's not the right word to use." And in a discussion on race-based police stops, Kilborn used an African American Vernacular English (AAVE) accent while repeating the lyrics of a Jay-Z song which describes the pretextual stop of a young Black man ("You was doin' 55 in a 54.").
At the end of its investigation, the University concluded that Kilborn had violated the harassment aspect of its nondiscrimination policy. The University based its finding on Kilborn's use of the expurgated racial slur in the exam question, his out-of-class conversations with students concerning the exam question, his in-class remarks about "cockroaches" and "lynching," and his use of an AAVE accent. Specifically, it found that Kilborn's out-of-class comments expressed insensitivity and hostility toward students voicing concern and that his in-class remarks were inappropriate and racially charged. Kilborn believes these findings are unsupported by the facts and that University officials only relied on them to reach the predetermined conclusion that he should be punished.
Kilborn received two punishments for violating the University's nondiscrimination policy. The University declared him ineligible for an across-the-board two percent merit raise and required him to participate in an eight week diversity training program. The training program included coursework, self-reflection papers, and meetings with a trainer who would provide feedback regarding his engagement and commitment to the goals of the program. Kilborn could not return to the classroom until he satisfactorily completed the program.
Kilborn sued, claiming this violated his First Amendment rights, and the Seventh Circuit allowed the case to go forward (reversing a District Court decision that would have thrown the case out). The court began by concluding that Garcetti v. Ceballos (2006), which generally held that government employees have no First Amendment rights when speaking as part of their job, didn't apply to public university professors:
The Supreme Court [in Garcetti] made clear that its decision did not extend to cases "involving speech related to scholarship or teaching." Instead, it reserved the question in response to Justice Souter's concern that the decision would otherwise "imperil First Amendment protection of academic freedom in public colleges and universities." …We decline the University officials' invitation to extend Garcetti to speech involving university teaching and scholarship when the Supreme Court was unwilling to do so. Nor are we alone. Every other circuit to decide the issue has recognized that Garcetti does not apply to university teaching or scholarship. [Further details omitted. -EV]
The court went on to conclude that Kilborn's speech qualified as "involv[ing] a matter of public concern," a threshold requirement for First Amendment protection for government employee speech:
Kilborn's exam question, out-of-class statements, and in-class remarks are all academic speech that address matters of public concern, notwithstanding the limited size of Kilborn's audience. The exam question was designed to give students experience confronting a highly charged situation that they may encounter in real-life practice and to be a continuation of the learning that occurred in the classroom. The content, form, and context of the exam question give no indication that it involved a matter of private concern rather than serving broader pedagogical purposes. Kilborn's in-class statements performed a similar function. They were designed to engage students and stimulate in-class discussion on topics of significant interest to the broader community, including frivolous litigation and pretextual police stops. Kilborn's out-of-class remarks also contributed to a public discussion, initiated by members of the BLSA community, on the propriety of using expurgated slurs in a law school exam. Although Kilborn's remarks were made to individual students, even the University recognized that they were directed at a broader group of people….
The dominant theme of Kilborn's in-class speech concerned pretextual police stops and the relationship between frivolous litigation, plaintiff incentives, and media coverage. These are undeniably matters of public concern. Kilborn's references to cockroaches and lynching and his use of an AAVE accent may have been insensitive, but they do not affect the public character of his speech. Similarly, Kilborn made his out-of-class statements in the context of a public discussion that was occurring at the University. Although he expressed his personal reaction to the controversy with individual students, the overall thrust of his speech addressed a matter of public concern: the propriety of using expurgated slurs in exam questions….
Finally, the court turned to the third prong of the test for First Amendment protection for government employee speech—whether its disruptiveness outweighed its constitutional value (the so-called Pickering balance):
Although Kilborn's speech receives some measure of protection under the First Amendment, it is not absolute. We weigh Kilborn's interest in expressing his speech against the interests of the University. A public employer's interest is generally limited to the efficient and effective delivery of public services. But in the academic setting, a public university also possesses its own First Amendment interests in academic freedom. For example, we have recognized that a university's "ability to set a curriculum is as much an element of academic freedom as any scholar's right to express a point of view."
The University officials do not suggest that the University had its own competing academic freedom interests. In fact, the University noted that its findings did not hinge on whether there were legitimate pedagogical reasons for Kilborn's use of the expurgated racial slur. Instead, the University officials assert an interest in maintaining a safe campus where students can learn free of harassment.
To be sure, the University has a substantial interest in ensuring its students can learn free of harassment. But here, the parties dispute why Kilborn was punished. The University officials claim they disciplined Kilborn because his speech was threatening and harassing to students. The University's investigation concluded that Kilborn's out-of-class remarks expressed insensitivity and hostility toward students voicing concern and that his in-class comments were inappropriate and racially charged. By contrast, Kilborn alleges that the investigation was not supported by the facts and that University officials intentionally misconstrued his statements to provide a pretext for punishing him for his controversial exam question and to mollify complaining students.
That is not a dispute we can resolve this early in the litigation. At this stage, we accept the well-pleaded facts in the complaint as true and draw reasonable inferences in Kilborn's favor. And it is reasonable to infer from the well-pleaded facts in Kilborn's complaint that University officials punished him for the controversial exam question and used the investigation to establish a pretext for their actions.
To take one example, the University's investigation substantiated an allegation that Kilborn had referred to racial minorities as cockroaches and found that the comment was racially charged. But a transcript of the class recording, which is included in the complaint, supports Kilborn's allegation that his reference to cockroaches had nothing to do with race or racial minorities.
We conclude that this is not "one of those rare cases" where we can engage in Pickering balancing "on the basis of pleadings alone." … Pickering balancing generally requires a more fully developed factual record than is available on a motion to dismiss ….
The court rejected, however, Kilborn's compelled speech claim, due process claim, and vagueness claim.
Note that courts have recognized a First Amendment right to quote unexpurgated epithets in class, and not just expurgated ones. For more on the question, beyond just the First Amendment issue, see Randall Kennedy's and my The New Taboo: Quoting Epithets in the Classroom and Beyond.
Patrick F. Solon (Vitale, Vickrey, Niro, Solon & Gasey LLP) represents Kilborn.
