In Appeal Of Dismissal Of Law Prof's Retaliation Claim Over Use Of Redacted Slur On Exam, 7th Circuit Asks: Should Law School Be A Safe Space?

Law360, 7th Circ. Asks If Law School Should Be 'Safe Space':

Seventh Circuit judges considering a retaliation suit from a University of Illinois Chicago law professor who used the N-word in an exam hypothetical asked Thursday if law schools should really be a "safe space" shielding students from the kind of "horrific facts" courts deal with regularly.

A three-judge appeals panel heard arguments Thursday morning over whether a district court properly tossed constitutional and retaliation claims brought by professor Jason Kilborn, who drew anger on campus after he included the abbreviations "n___" and "b___" on an exam question about a hypothetical employment discrimination matter.

Kilborn claims that university officials retaliated against his protected speech under the First Amendment and compelled his speech during an eight-week diversity course he was required to take before returning to work, following a two-semester suspension. He also alleges that his due process rights were violated when he was declared ineligible for an across-the-board raise in response to the school's finding that he violated a college nondiscrimination policy he deems unconstitutionally vague.

As the judges questioned counsel for the university, who argued that dismissal was proper and should be affirmed, the conversation turned to how best to prepare prospective lawyers for the sensitive subjects they'll deal with in the profession.

"In your view, how should the exam question [have] been framed in this case, that would assure it did not violate the harassment policy, given the horrific — and I don't have to tell you how horrific — the horrific facts in cases that courts must decide regularly?" U.S. Circuit Judge Ilana Rovner asked. "How can a law professor effectively teach if using the first letter of offensive words in cases, in real cases, in things that have occurred, in things that may be ongoing … how can that be considered harassment?"

Courthouse News Service, Chicago Law Professor Accused of Racism Asks Seventh Circuit For Another Chance to Sue School:

University of Illinois Chicago law students objected to what they saw as the racist conduct of their tenured professor Jason Kilborn in December 2020. Four years later, the controversy continues, with Kilborn taking a legal fight against the university all the way to the Seventh Circuit.

On Thursday an appellate panel heard arguments in that fight, weighing the limits of free speech and the responsibility of teachers to create a respectful environment for their students.

"Is there any limiting principle, or can professors say whatever they want about whatever they want during a class and it's protected by the First Amendment?" U.S. Circuit Judge Thomas Kirsch II, a Donald Trump appointee, asked during the hearing.

Prior TaxProf Blog coverage:

• Controversy At UIC Law School Over Use Of 'N And B (Profane Expressions For African Americans And Women)' On Fall Civ Pro Exam (Jan. 16, 2021)
• Is This Law Professor Really A Homicidal Threat? (Jan. 20, 2021)
• Jason Kilborn, UI-Chicago Law School Settle Controversy Over December 2020 Civ Pro Final Exam Question (Sept. 13, 2021)
• When Suspending A Law Professor Isn't Enough (Nov. 11, 2021)
• Koppelman: This Is A Witch-Hunt Against A Tenured Law Professor (Nov. 18, 2021)
• Koppelman On The Yale And UIC Law School Controversies (Nov. 29, 2021)
• Academic Freedom Alliance And Brian Leiter Weigh In On How The University Of Illinois-Chicago Has Handled Student Complaints Against A Tenured Law Professor (Dec. 7, 2021)
• University Of Illinois-Chicago Law School Reassigns Jason Kilborn's Spring Classes While He Undergoes Mandatory Diversity Training (Dec. 20, 2021)
• Tenured Professor Suspended For Using Redacted Slurs In Law School Exam Sues University of Illinois-Chicago (Jan. 28, 2022)
• Tenured Law Professor Appeals Dismissal Of Civil Rights Lawsuit Over Suspension Following Use Of Redacted Slurs On Exam (Dec. 9, 2023)