Paul L. Caron

Wednesday, January 20, 2021

Is This Law Professor Really A Homicidal Threat?

Following up on my previous post, Controversy At UIC John Marshall Law School Over Use Of 'N_____ And B_____ (Profane Expressions For African Americans And Women)' On Fall Civ Pro Exam:  Chronicle of Higher Education op-ed:  Is This Law Professor Really a Homicidal Threat?, by Andrew Koppelman (Northwestern):

UIC John Marshall (2021)You would expect, given the sanctions that the University of Illinois at Chicago’s John Marshall Law School piled onto Professor Jason Kilborn, that he had done something horribly disgraceful. Disgrace there is in abundance, but it belongs to the school’s administration. Indeed, in this story, Kilborn is the only one who looks good. ...

[See here for a full description of the facts, including (1) Kilborn's use of the phrase “'n____' and 'b____' (profane expressions for African Americans and women)” on his fall Civil Procedure II exam and the uproar it caused among some students; and (2) Kilborn being placed on administrative leave and barred from campus following a determination by the university's threat assessment team and law school dean that he was a "homicidal threat" based on a comment he made in a 4 hour Zoom meeting with a BLSA member.]

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? Randall L. Kennedy and Eugene Volokh have argued that a ban on quoting epithets in the classroom is in tension with norms of accuracy and precision in the use of sources. They fear that the new norms will impede frank classroom discussion. This sorry episode supports that claim.

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