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Court ruling on UIC’s petition to dismiss law professor Jason Kilborn’s suit

Jason Kilborn is the University of Illinois at Chicago Law School professor who was suspended and put into a reeducation program after he used a redacted form of a racial slur on the final exam he gave his students in his Civil Procedure II class in December 2020. Rather than even try to summarize the entire, absurd story, I’ll link to my coverage:

Kilborn sued the school and last week U.S. District Jude Sara L. Ellis released a 36 page opinion and order granting in part and denying in part UIC’s motion to dismiss the suit.

I asked Kilborn to translate the opinion into layman’s terms. He wrote:

My suit advanced essentially 5 theories:

(1) My First Amendment rights were violated when UIC retaliated against me for several snippets of speech, most notably my exam question,

(2) That UIC’s “harassment” policy was/is so vague (UIC diversity officials get to decide arbitrarily and capriciously in any given case what “harassment” means) as to be unconstitutional and void, and that it was applied without any due process, both of which violated my Fifth Amendment rights,

(3) That the named defendants defamed me by spreading lies and half-truths to the entire UIC community and the world via their demonstrably false reports of their sham “investigation,” email and webpages,

(4) That the UIC defendants cast me in a “false light” with the same demonstrably false and/or perverted half-truths, which they knew or should have known were false and/or perverted, and

(5) That the UIC defendants intentionally caused me horrible emotional distress through all of this.

After nearly a year of delay after delay, the court finally released an opinion on the defendants’ motion to dismiss the case on a number of largely technical bases. The opinion granted their dismissal motion only in small part and in a way that we can fix to revive the most important core of our original claims (and likely add further ones that have come to light in the last year).

First, the court recognized—contrary to UIC’s explosive assertion—that yes, a university law professor does have First Amendment protection in his teaching, but it held that my exam question was not “teaching.” It also was unclear to the court as to whether I was challenging the actions taken against me on the basis of my classroom comments, so it didn’t specifically preserve that aspect of the case, but it invited me to make that clear.

We can fix both of these problems, and I’ve already drafted language to make it eminently clear that, indeed, examination is an integral part of teaching and my choice of scenarios and language on the exam is not random and sterilely unrelated to teaching (!?), and yes, I was challenging the defendants’ actions in retaliating against me on the basis of my classroom speech, since that seems to be the very slender reed on which all of UIC’s abuse of me was balanced.

Second, the court brushed aside the UIC defendants’ weak claims of “immunity” from liability (!), but it took issue with the way in which the defamation and false light claims were described in our Complaint.

It parsed the Complaint and the exhibits and concluded that we hadn’t been precise and specific enough in identifying the lies and half-truths that we’re challenging. In the rush of getting an Amended Complaint on file last February with new (and really great!) lawyers, we overlooked a couple of technical issues and forgot to append an exhibit or two. We can and will fix this immediately, and we’ll proceed on essentially all of the original bases.

Third, the court found that the defendants’ actions here were not reprehensible enough to constitute the basis for an “intentional infliction of emotional distress” case. Their behavior was not exceptionally shocking, the court found, so it dismissed that count entirely. This is not a significant loss. I do think the behavior of the UIC defendants here is extraordinarily shocking and should support an IIED cause, but I’m not at all disappointed in where the case stands without that cause.

Most crucially, the court refused to dismiss my central claim, that the “harassment” policy is void for vagueness, could not constitutionally be applied to me, and has to be changed (the application of the policy without due process seems to have been dismissed, but that part of the opinion is so confused we’ll have to revisit that claim and see where we go on it, though it adds very little to the “vagueness” claim). That’s what motivated my lawsuit, and the fact that UIC refuses to even negotiate about its obviously and egregiously vague policy is … unfortunately unsurprising. It would cost them precisely nothing to fix this problem, which has attracted an avalanche of nationwide (worldwide!) negative attention to UIC, but these administrators are obviously not motivated by the interests of higher education or the university.

We’ve seen how UIC administration “negotiates” during the recent strike. They don’t. They wait until after the 11th hour, act in bad faith throughout, and then finally cut a deal in the end. I don’t know if they’ll eventually try to cut a deal here, but I’m not especially interested in just cutting and running, as I brough this suit to force UIC to fix this horrendous problem and not do this to anyone else (teacher, student, or staff) ever again. They could end this lawsuit tomorrow if they had any interest whatsoever in behaving reasonably and fixing this obviously problematic “harassment” policy, but again, I’m quite confident they have no such interest, and the case will proceed to the bitter end. My lawyers and I are quite ready to take this to the end to make the absolutely vital point that university professors have to be able to have difficult conversations and touch difficult topics in class (and on exams) if our students are to be prepared for the world that awaits them. That higher education officials don’t see this and are fighting it tooth and nail just reveals what a terribly sorry state higher education is in here in Illinois, especially at UIC.