This is a
long read by Eric Zorn, but pretty eye-opening:
Quote:
Today I’d like to lay out for you at length a story that has received surprisingly little attention locally. If you find the tale does not hold your interest, I won’t be offended if you scroll down to the tweets, news about Mary Schmich’s battle with COVID-19, the tune of the day (it’s a great one!) and more.
Anyway, the story began on Dec. 2, 2020, when University of Illinois at Chicago Law School professor Jason Kilborn administered the final exam in his Civil Procedure II class.
One of the written questions posed a hypothetical scenario in which a woman claimed that she “quit her job … after she attended a meeting in which other managers expressed their anger at (a different employee), calling her a ‘n____’ and ‘b____’ (profane expressions for African Americans and women) and vowed to get rid of her.”
The blank spaces appeared on the exam, in keeping with the now standard practice that white people may not speak or type the “profane expression for African Americans,” even when quoting someone else in a context that assumes and underscores the poisonous nature of the word.
Kilborn, who began teaching in 2000 at Louisiana State University and joined the UIC faculty in 2007, said he’d used the same question with the same expurgated wording a dozen times in his classroom career.
This time, however, it provoked a backlash. Here is an excerpt from a statement shortly thereafter from the UIC Black Law Students Association:
The slur shocked students, created a momentous distraction and caused unnecessary distress and anxiety for those taking the exam. Considering the subject matter, and the call of the question, the use of the “n____” and “b____” was certainly unwarranted as it did not serve any educational purpose. The question was culturally insensitive and tone deaf. It lacked basic civility and respect for the student body, especially considering our social justice efforts this year. …
The unnecessary use of the N-word in an academic setting is traumatizing and distracting, especially during an already stressful exam in a time of civil unrest and a catastrophic pandemic. … The visual of the N-word on Professor Kilborn’s exam was mental terrorism. The use of this vile and repugnant word, even in an implied state, was utterly disgraceful. …
When asked how reading those words while trying to complete a law school exam impacted her, one student stated, “I was completely flustered by the question and had to take several moments to gather myself prior to proceeding with the exam.” The student added, “I had to seek counsel immediately after the exam to calm myself from what I had just experienced.”
Another student stated that upon reading “n___” and “b___” on the exam she became “incredibly upset” and immediately began to experience “heart palpitations.”
One Black student was left in a hopeless mental state after learning about the words implicated on the exam. … He added, reading “n___” and “b___” was triggering, and made him feel as if he no longer belonged at the school.” …
One student who sat for his exam questioned Professor Kilborn’s intent, asking, “Given the events of George Floyd and the continued racial unrest in our nation, would [Professor] Kilborn intentionally force this indignity onto his African American students?”…
The language used lacked respect, human decency, and civility during one of the most stressful times of the semester and of our lives. It is inexcusable, unacceptable and culturally inappropriate to use insensitive language as context to test civil procedure concepts.
It’s important to emphasize again that Kilborn’s exam did not use the slurs in question but merely alluded to them in the way that most of us have been careful to do for many years.
African American linguist John McWhorter of Columbia University wrote about this evolution in usage in a New York Times essay last year:
The modern American uses “the N-word.” This tradition settled in after the O.J. Simpson trial, in which it was famously revealed that Detective Mark Fuhrman had frequently used (the full version of the word) in the past. Christopher Darden, a Black prosecutor, refused to utter the actual word, and with the high profile of the case. … Mr. Darden in his way heralded a new era.
That was in 1995, and in the fall of that year I did a radio interview on the word, in which the guests and I were free to use it when referring to it, with nary a bleep. That had been normal until then but would not be for much longer, such that the interview is now a period piece.
The implication of the complaint against Kilborn lodged by the UIC Black Law Students Association was that the rules had changed; that for a white person even to allude to the word in question — to imply its existence — is “traumatizing and distracting” and an act of “mental terrorism.”
If indeed a new standard of politeness had emerged, it certainly was not and still is not widely known.
When now-former UIC Law School dean Darby Dickerson brought the substance of the complaint to Kilborn’s attention several weeks after he’d administered the exam, Kilborn said he assured the dean he had no ill intent, and on Dec. 22, 2020, he emailed a note of apology to the students in the class. The relevant portion reads:
I feel terribly that anything I did might have caused anyone discomfort in the middle of my exam.
On the one hand, civil procedure questions require substantive context, and the casebook authors and I specifically focus this class in part on the procedure implicated in employment discrimination litigation, as recent studies have revealed that to be among the most common subject matters in federal litigation. The topic raises particularly important civil procedural challenges that represent a mainstay of modern litigation, which I try to use to give you a realistic and meaningful exam experience. It is a context, unfortunately, in which hurtful words and painful behaviors occupy center stage. The question at issue starkly took on that important context by obliquely referencing the kinds of hurtful language one encounters in cases involving race- and gender-based employment discrimination. I tried in a respectful but realistic way to convey the types of facts where discovery practice would come most starkly into conflict with a defendant’s desire to withhold information in a situation involving the commonly invoked but limited protections of work product doctrine, again in a context that aspiring lawyers would most likely actually encounter in the real world of federal litigation.
While I tried to dull the sharp edges of these painfully salient and relevant words, I can see why some people might have felt uncomfortable being confronted with this reference to the harsh realities of discriminatory language during a high-stakes, anxiety-filled exam. I can see how someone against whom such epithets might actually be hurled in the real world might feel especially jarred by the reference in the middle of an exam, and in particular, I can see, in light of the extraordinary events of these past few months, that sensitivities to this kind of context were heightened this semester. Some individuals might have felt especially emotionally vulnerable when reminded of the cruel realities that civil procedure is called on to uncover.
I certainly did not intend to cause any student or group of students to feel distressed, and if that happened to anyone, I’m really sorry for that. I truly care about each and every one of you, and I am more than willing to listen receptively and discuss the matter with any student in the class comfortable doing so.
You’d think this would have been the end of it — unintentional offense, sincere apology, time for everyone to move on.
But you’d think wrong. The Black Law Students Association statement was posted online eight days after Kilborn sent his email, and it demanded that Kilborn “immediately step down as chair of the academic affairs committee.”
Kilborn then participated in a Jan. 7, 2021, four-hour dialogue with a Black Law Students Association leader via Zoom. He later said he thought the meeting had gone well and the exchange had been productive.
But on Jan. 12, the dean canceled Kilborn’s spring semester teaching assignments, banned him from campus and placed him on paid leave. Why? Because about 90 minutes into the four-hour conversation with the student leader, Kilborn had speculated that the reason the dean hadn’t initially shared the Black Law Students Association complaint with him was because she was "afraid if I saw the horrible things said about me in that letter I might become homicidal.”
Several days later, in a meeting with administrators, the student said he considered this a threat. Kilborn said it was a flippant and obviously euphemistic reference to his view of the dean’s mindset, not a statement of his own mindset.
The story of the law professor being hounded for using an oblique reference to a racial slur in an exam began making waves around the country. UCLA law professor Eugene Volokh retold it and posed this question in a Jan. 15 Reason magazine blog post:
What exactly will the rule be when teachers want to talk about racial or sexual harassment, or other mistreatment of people based on race, sex, religion, sexual orientation, and the like? Have we reached a point that one can't even quote epithets in expurgated form? Or is it that all discussion of "deeply offensive" conduct by defendants is itself "deeply offensive," regardless of the words (or letters and underlines) that one uses?
On Jan. 19, the Chronicle of Higher Education published a takedown of the administration at UIC Law (which until May of last year was known as UIC John Marshall Law School) by Northwestern University law professor Andrew Koppelman:
If lawyers are going to be competent to do their jobs, they must be able to cope with the fact that humans sometimes do and say very bad things. Discrimination is among those bad things.
Students must thus be able to see the facts of discrimination lawsuits, and be able to perform legal analysis in the face of those facts. In the real world, racist slurs are not bowdlerized as they were on Kilborn’s exam. He did nothing inappropriate. A sensible and responsible administration would have told the students that. …
Kilborn did avoid language that could cause hurt and distress to students. He censored the words. He did, concededly, allude to the words in a way that made it easy to know what they were. But if that is “deeply offensive,” punishable behavior, how is it ever permissible for a professor to take note of the fact that racial slurs exist? How is one to teach a course in antidiscrimination law? …
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.
John McWhorter, the African American linguist, weighed in on the burgeoning controversy on Substack on Jan. 27:
Let’s pull the camera back, take a deep breath, and look at something like this pillorying of Kilborn with clear eyes. If a Black student is traumatized to such a degree by seeing “n*****” on a piece of paper, then that student needs psychological counseling. We all understand the history and power of the N-word, but we all also understand the simple issue of degree. That student who got heart palpitations needs help, and what the suits at the University of Illinois in Chicago should have done was gently direct this student to the proper services, which the school surely provides, for people who have fallen away from the ability to cope with normal life. …
A five year old having a tantrum generally makes a great deal more sense than someone who has been alive for a quarter of a century claiming heart palpitations over reading “n*****” on an exam. …
A Black student who pretends a white professor is an actual physical threat on campus because of a flippant remark using the word homicidal is neither genuinely afraid nor being sophisticated. That student is pretending an ignorance of the basic nature of hyperbole in human communication, without which neither a language nor a society could exist. The student engages in such verbal hyperbole in various ways all day every day. To engage the student in pretending not to understand hyperbole is to treat that student as a dimwit.
(On Monday I put this question to Operation PUSH — whose leader, Jesse Jackson, spoke at a protest against Kilborn last November — and to the UIC Black Law Students Association: Is the expression “the N-word” now one to avoid? I will let you know if and when they respond.)
But even after all the negative attention directed at UIC Law, administrators there doubled down. On Feb. 17, 2021, they sent an email to Kilborn putting him on notice that the school’s “Office for Access and Equity (was) commencing an investigation into allegations of race based discrimination and harassment” by him that went beyond just the exam question.
A little more than three months later, Donald Kamm, director of the school’s Office for Access and Equity, released his findings in an internal document that has since been made public. (See it and other documents related to this story in this document supplement)
Here are the key portions of the investigatory findings along with some explanatory and contextual interjections:
Based on a preponderance of the evidence, OAE determines that, for a variety of reasons, Professor Kilborn’s substantiated conduct, considered cumulatively and particularly in the matter of his response to criticism of his exam, affected many Black students and substantially interfered with their participation in the University’s academic program. …
[A] recording of [a] Jan. 23, 2020 class session clarifies that Professor Kilborn used [African American vernacular English] when referencing a Black artist’s lyrics to sound Black, referred to minority civil rights plaintiffs as “cockroaches” and as part of modern day extortion (and) referenced media coverage of minority civil rights cases as a “public lynching.”
Kilborn, writing in the third-person, responded to each of these in turn in his eight-page summary of the case.
First, about his use of vernacular in the classroom:
Prof. Kilborn was distinguishing the unique facts of a discrimination case under discussion, comparing it to racial profiling by police of young Black men. Prof. Kilborn had heard a particularly apt line in a song on his run music mix that morning, in which Jay-Z describes just such an abusive pretextual racial profile stop, and in explaining to the young Black man why he stopped him, the police officer says, “You was doin’ 55 in a 54.” Recalling this line, in class, Prof. Kilborn pronounced 54 as Jay-Z does in the song (“fifty fo”), in order to faithfully convey the sound of the song that Prof. Kilborn surmised the class would recognize.
Next, regarding his use of the word “cockroaches,” Kilborn offered this transcript for what he said as taken from the audio recording of that class session:
“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?”
None of the coverage I found online of the infamously silly “honey, they shrunk the Footlong” suit that resulted in Subway paying a half-million dollar settlement indicated the race of the plaintiffs or their attorneys, but from the profile photo from the Facebook post that started it all —
— the original complainer appears to have been white.
Kilborn allowed that he did reference lynching during another part of that class:
Prof. Kilborn was challenging the class to put themselves in the shoes of a bank executive considering settlement. He suggested that the executive might be concerned about biased media reporting, which, if the story were not true and the bank had done nothing wrong, might be resented by the executive as the bank’s “being lynched” in the public media.
Regarding his allusion to lynching, Kilborn wrote that he immediately apologized to students for invoking a crime that alludes to a terribly racist and ugly part of our nation’s past, an assertion that the investigatory report confirms. The report also said that a review of audio recordings of six other classes from that semester “did not substantiate allegations that Professor Kilborn made (other) racially-charged comments.”
About the incident that started this whole imbroglio, the Office for Access and Equity report said that even though Kilborn had used the same question on his exam for many years without incident, he should have known better than to have used it when he did:
At the time of the final exam in December 2020, the country and the University community were grappling with issues of race-related violence, protests, and a national election that invoked issues of racial tension in ways not experienced in the United States for many decades. That broader context rendered Professor Kilborn’s decision to keep the question on his final exam insensitive and indicative of poor judgment, at the very least. OAE determines that a reasonable person would have recognized that use of the exam question at that particular time was likely to create anxiety for minority (and non-minority) students alike, during a significant academic moment requiring extreme concentration.
The balance of the investigatory findings regarding Kilborn centered on his pained, flabbergasted response to the charges leveled against him due to the exam question.
OAE determines that, when Professor Kilborn learned that student groups had lodged written objections to his exam question in late December 2020, he responded in at least two instances in early January 2021 in a manner that created safety and retaliation concerns for Black students. … [In a] January 4, 2021 email to a student who had signed the [Black Law Students Association complaint letter] … Professor Kilborn verbally chastis(ed) that student for signing that letter. Professor Kilborn’s email called it a “horrible, horrible letter,” an “attack letter,” that was “vicious” and “cruel,” and that led Professor Kilborn to feel and to write that his “hand of help had been bitten off.”
The reference is to a private email to a former student, who was white. Kilborn wrote:
Can’t tell you how painful it was to see your name on BLSA’s attack letter against me. That question and that very language were on the exam that you and your class took, yet no one in the years I’ve administered that question has ever said anything. I’m sure you know that I certainly did not intend to cause anyone distress and that I am especially sensitive to the issues raised in that horrible, horrible letter.
Such a shame to see all of my efforts to offer comfort and encouragement … only to be now vilified in the most vicious, cruel, and uncompassionate way. I feel like my extended hand of help has been bitten off.
I’m not criticizing you, and it hurts that anyone would even dream that I would seek retribution against anyone about all of this—all of these people are and will always be welcome in my classes. But a few of the familiar names on that letter—with not one person ever, ever reaching out to me—is painful beyond description.
My heart is absolutely broken by all of this.
The student had responded:
As a white student, with the privileges that come with that, is believing People of Color when they say that actions or inactions have caused them pain or distress. This year has been a constant source of stress for students and professors alike. This year also saw a racial reckoning on a global scale. If students expressed concern, pain, or feelings of inhumanity, I can't ignore, negate, or deny those feelings. Rather, as a [Student Bar Association] member, and a [UIC Law School] student, I felt it was my place to stand in solidarity with those experiencing these feelings.
I’m not the gatekeeper of what is right or wrong, or offensive or not offensive. Students of color were detrimentally affected by this question; I cannot, in good faith, disregard that because of help that was extended to me for my own benefit.
As you mentioned, this question was on the exam that I took last semester. An issue was not raised during that time and that is part of the problem. That I was able to read that question without much thought, without the reawakening of trauma, is part of why I signed that letter. Because I am privileged enough to read over that question, I want to stand in solidarity with those that weren't able to read that question without issue.
Again, I'm sorry that you feel betrayed, that wasn't my intention and it is heartbreaking to think that I caused anyone such pain. But when I say I stand in solidarity with students of color, especially as a member of the SBA, I cannot then ignore students expressing feelings of pain and trauma.
Kilborn had replied:
Acknowledging pain did not and does not require attacking me very personally and cruelly. I also acknowledged and expressed regret for the pain that question caused. Two wrongs don’t make a right.
I admire your support of your colleagues. I support them too. Making me into a villain is not a fair or effective pathway to healing and understanding.
Enough said. We’ll all learn from this ...
In other words, Kilborn had said he’d not intended to offend anyone, had offered a sincere apology and felt deeply wounded that his character was still being maligned even by people with whom he thought he had a mutually respectful relationship.
OAE determines that all comments expressing Professor Kilborn’s anger, dissatisfaction, and disappointment related to issues of race and created fear and intimidation that relates to racial issues and were reasonably interpreted as such, given the context in which these comments were made. … (The comments) affected many Black students and substantially interfered with their participation in the University’s academic program.
Thus Kilborn’s expressions of anger at being called a racist were themselves deemed to be acts of racism.
Back to the university's findings:
Professor Kilborn’s conduct, at minimum, has taken an understandable emotional toll on non-White students, faculty, and supporters of the non-White students who felt threatened. Professor Kilborn’s conduct has interfered with non-White students’ learning experiences at UIC [Law School] and created fear of an unsafe educational environment and concern about retaliation against students who disagree with his conduct. … Based on our investigation, OAE recommends that, to address Professor Kilborn’s Policy violation, Professor Kilborn partake in a series of individual training and coaching sessions regarding cultural competency before he returns to teaching in the classroom, which he is currently not scheduled to do until the Spring 2022 semester.
Though the contretemps had earned UIC a spot on the Foundation for Individual Rights in Education’s list of “10 Worst Colleges for Free Speech: 2021,” the matter seemed resolved. Kilborn said he and the interim dean agreed over the summer that he would return to the classroom in the winter semester, as scheduled, that all his classes would be recorded and that he would give prior notice to the administration before commenting to students on racial issues. Kilborn said he balked at undergoing “sensitivity training” but agreed to undergo it if reviews of his class recordings showed that he was maintaining a harassing classroom environment.
In September, Kilborn, 49, and his lawyers had a set-to with the school over the school’s denial of a pay raise related to the investigatory findings. But all was in order until the Black Law Students Association caught wind that Kilborn would be returning to the classroom for the winter semester.
On Oct. 28, the BLSA along with the UIC Student Bar Association issued an open letter demanding Kilborn be fired. The letter did not mention the precipitating event — the allegedly distressing exam question — but focused instead on Kilborn’s remark to a student that perhaps the reason the dean hadn’t immediately shown him the complaint about the exam was because the dean feared Kilborn would become homicidal.
“Kilborn confessed to stating to a Black student he would ‘become homicidal,’” said the letter. “Critically, students fear that Professor Kilborn may put his ‘homicidal comment’ into action.”
Operation PUSH leader Jesse Jackson rallied with the BLSA in the Loop on Nov. 4, and the Sun-Times reported,“The UIC law students allege a professor ‘called (students) racial slurs and labeled them ‘cockroaches.’”
It was a false, irresponsible and inflammatory summary of the situation. But you can guess what happened next.
UIC reneged on its earlier deal with Kilborn and postponed his return to the classroom until this fall pending his successful completion of the “Teaching and Learning in the Diverse Classroom Online Course” from Cornell University.
UIC responded to my request for further comment with a seven paragraph “Dear UIC community” statement dated Nov. 30, 2021 and an assurance that the school anticipated “that Professor Kilborn will return to teaching in Fall 2022.”
Kilborn has agreed to take the course, but told me he may still be filing suit against UIC based on the university’s handling of his case. A Dec. 16 letter from UIC’s legal counsel to Kilborn’s attorney noted that Kilborn will be paid his full salary as the process proceeds, and described the path ahead this way:
The course consists of 5 modules spanning 5 weeks. Each module requires an approximate time commitment of 2-4 hours. The modules will also be supplemented by readings, podcasts, and/or videos. After completion of each module, Professor Kilborn will be asked to prepare a written self-reflection paper in response to specific prompts.
In conjunction with his Cornell coursework, the Law School is retaining an instructional advisor to work with Professor Kilborn one-on-one. The advisor is a practicing attorney with significant experience in employment law and diversity and inclusion consulting and has a sub-specialty in higher education matters. In furtherance of her work in this area, the advisor has taken a similar Cornell course in diversity and inclusion and has earned a certificate in Diversity and Inclusion from Cornell similar to the one Professor Kilborn will earn. …
The advisor will assess whether Professor Kilborn is gaining insight, learning, and competencies in the subject matter presented, with a particular focus on applying the course content to his work responsibilities as a faculty member…
During the course of the program, the instructional advisor will also provide feedback regarding Professor Kilborn’s engagement and commitment to the goals of the program.
Self-reflection never hurt anyone, I guess.
But those who refused to accept Kilborn’s apology for what was, at worst, an honest misunderstanding and instead trashed his reputation and impugned his character by putting the worst possible spin on his every utterance ought to take stock of their words and deeds as well.
They could learn from Kilborn’s words in his email to one of his accusers: “Making me into a villain is not a fair or effective pathway to healing and understanding.”
Login
Register
FAQ
Search
