CHICAGO (CN) — A three-judge Seventh Circuit appellate panel partially sided with a University of Illinois Chicago law professor on Wednesday, reversing a lower court’s dismissal of his First Amendment retaliation claim against several current and former university administrators.
The appellate panel found UIC law professor Jason Kilborn had plausibly shown he suffered adverse employment actions over protected speech.
“The district court found that Kilborn’s speech was not constitutionally protected and dismissed his claim. We conclude that Kilborn has plausibly alleged that his speech is constitutionally protected and reverse the dismissal of his claim,” U.S. Circuit Judge Thomas Kirsch, a Donald Trump appointee, wrote in the panel’s 25-page opinion.
The controversy at the heart of the case goes back a prompt Kilborn included in the final exam for a civil procedure course in December 2020. The scenario confronted the potential future lawyers with a hypothetical employment discrimination dispute, which involved a Black woman being called gendered and racial slurs by her peers. The slurs were censored in the prompt, but prompted backlash amid the backdrop of the 2020 national protests over racial injustice.
He claimed the university denied him a 2% raise over the fallout and other incidents, and in January 2022, sued then-university chancellor Michael Amiridis, then-interim law school dean Julie Spanbauer and three other university administrators.
The appellate panel on Wednesday affirmed U.S. District Judge Sara Ellis’ dismissal of most of Kilborn’s federal claims for First, Fifth and 14th Amendment violations but disagreed with her conclusions regarding the professor’s First Amendment retaliation claim.
“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,” Kirsch wrote. “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.”
Kirsch also ruled the potential insensitivity of Kilborn’s reportedly racially charged comments from a January 2020 class session did not mean those comments weren’t addressing public issues.
“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,” Kirsch wrote. “Kilborn’s references to cockroaches and lynching and his use of an African American Vernacular English accent may have been insensitive, but they do not affect the public character of his speech.”
Besides reversing Ellis’ ruling on Kilborn’s First Amendment retaliation claim, the appellate panel also vacated the district judge’s dismissal of Kilborn’s state law claims “for further consideration.”
Kirsch was joined on the appellate panel by U.S. Circuit Judges Ilana Rovner and David Hamilton, George H. W. Bush and Barack Obama appointees respectively.
Kilborn was placed on administrative leave after meeting with a member of the school’s Black Law Students Association over Zoom in January 2021 to discuss the exam controversy.
During that conversation, he reportedly commented that the law school dean had not shown him a student petition criticizing the exam question because she thought the petition might make him feel “homicidal” if he saw it. Kilborn claimed in his 2022 complaint against the university administrators that he was only using a “common metaphorical expression.”
The university’s Office for Access and Equity launched an investigation the following month. It found in May that Kilborn had violated university nondiscrimination policy in his classroom over the course of 2020 and early 2021.
Besides his “homicidal” comment at the January 2021 meeting, the office highlighted the January 2020 class where it found he made racially charged comments — including references to “cockroaches” and “lynching,” the latter term he apologized for using — in a discussion on frivolous litigation and negative media stories.
The investigation also found that Kilborn sent an email in January 2021 to a student who signed the critical petition, expressing that he felt betrayed. The university’s equity office found it created concerns he would retaliate against Black students for his professional troubles. Kilborn contested these conclusions as inaccurate in his suit.
“In its zeal to protect students from speech that made them feel uncomfortable, the University of Illinois Chicago has violated a school of law faculty member’s rights to freedom of speech, academic freedom, and due process. It has also defamed him and subjected him to extreme emotional distress during a period of already heightened emotional trauma in the midst of the isolation and anxiety of the COVID-19 pandemic,” Kilborn wrote in an amended complaint from February 2022.
That amended complaint also included state law claims for defamation and false light.
More than a year and a half later, Ellis tossed his complaint. The Barack Obama appointee found, among other conclusions, that the university staff enjoyed qualified immunity and that Kilborn, as a public school employee, hadn’t shown why his behavior warranted First Amendment protections.
“The First Amendment protects a public employee’s speech when the employee speaks as a private citizen addressing matters of public concern,” Ellis wrote in her November 2023 dismissal order. “If the speaker is not wearing his hat ‘as a citizen,’ or if he is not speaking ‘on a matter of public concern,’ then the First Amendment does not protect him.”
Kilborn appealed Ellis’ decision shortly after she handed it down, with the Seventh Circuit hearing oral arguments on the issue last September.