Yes, This Is a Witch-Hunt

In January the University of Illinois at Chicago’s School of Law disgraced itself with its foolish persecution of Jason Kilborn, a professor who was accused of racism for asking students to address an ordinary hypothetical, of a kind they are likely to encounter in normal legal practice. That episode has now ballooned into calls for his firing, with an ill-informed Rev. Jesse Jackson leading protests against him. And the university, while it refuses to fire Kilborn, is continuing to punish him for things it knows he didn’t do.

The trouble started when, in a “Civil Procedure” exam, Kilborn asked whether a hypothetical company, sued for discrimination, must disclose evidence to the plaintiff. In the test’s scenario, a former employee told the company’s lawyer “that she quit her job at Employer after she attended a meeting in which other managers expressed their anger at Plaintiff, calling her a ‘n____’ and ‘b____’ (profane expressions for African Americans and women) and vowed to get rid of her.” The exam did not spell out those words, which appeared exactly as you just read them. (This was just one of the test’s 50 questions.)

Lawyers face such situations all the time. The question was entirely appropriate. One student, however, declared that, on seeing the sentence, she became “incredibly upset” and experienced “heart palpitations.” The Black Law Students Association demanded that Kilborn be stripped of his committee assignments, denounced him on social media, and filed a complaint with the university’s OAE (Office for Access and Equity).

Kilborn felt badly about this unexpected response, and agreed to talk to one of the complainants. At one point, the student asked Kilborn why the dean had not sent him the BLSA’s letter of complaint. He answered, “I suspect she’s afraid if I saw the horrible things said about me in that letter I would become homicidal.” They continued talking for several hours. Then, to Kilborn’s astonishment, the student reported to the school that Kilborn had made a homicidal threat. The dean summarily placed Kilborn on administrative leave, barred him from campus, and canceled his classes.

On February 17 the OAE sent Kilborn a notice of “investigation into allegations of race-based discrimination and harassment.” Evidently someone had been collecting such allegations, because there were many new ones. They included the exam question, the comment to the student (which the notice mischaracterized as “a comment that you would ‘become homicidal’ if you read the petition”), and — this claim appeared for the first time — “referring to racial minorities as ‘cockroaches.’” Because the notice said nothing about when he was alleged to have said that, it was impossible to respond.

The “cockroaches” claim has since become the central grievance against Kilborn. It is provably false. The OAE’s previously confidential “Investigation Report,” newly released in response to an Illinois Freedom of Information Act request by The Chronicle’s Emma Pettit, shows that the OAE understood that the “cockroaches” allegation never had any substance — and that the report released to Kilborn and the complainant (which became public months ago) was misleading on that crucial point.

The OAE botched its investigation of Kilborn. It repeatedly cited as “harassment” conduct that no reasonable person could regard as harassment. It enumerated charges without offering evidence. And it essentially found that he had violated the school’s discrimination policy by protesting his own earlier mistreatment.

On May 28 the office sent Kilborn a letter finding that “your conduct, considered cumulatively and particularly with respect to the manner of your responses to criticism of the final-exam question, was sufficiently substantial and repeated that it interfered with Black students’ participation in the university’s academic program and therefore constituted harassing conduct.” Most of the evidence on which it based that finding is, of course, not public. (Kilborn says: “Not only did they not allow me to confront any evidence of the spurious claims against me; they did not even confront me with several of the claims that eventually became their ‘findings.’”)

But the letter is self-refuting. It contains enough internal contradictions and obvious misjudgments to suggest that its authors were determined to find him guilty, no matter what.

Since the “cockroaches” claim is at the center of the present protests, it is worth tracing its trajectory. In the original complaint, Kilborn was accused of “referring to racial minorities as ‘cockroaches.’” In the OAE’s findings letter, however, the charge was crucially, and strategically, modified: Kilborn was found guilty merely of “making references to ‘cockroaches’” — the reference to racial minorities was dropped.

Mere “references to ‘cockroaches,’” of course, could not possibly be the basis for a finding of discrimination. It simply alleges that he used the word.

Now that we have the previously secret “Investigation Report” (which became the basis of the findings letter that was sent to Kilborn), we know that it declared that the “OAE has substantiated that Professor Kilborn … referred to minority civil-rights plaintiffs as ‘cockroaches.’” I have listened to a recording of the class where Kilborn spoke that word. It substantiates nothing of the kind. The fact that this conclusion was watered down, and made unintelligibly vague, in the letter that Kilborn received indicates that the OAE knew that the “Investigation Report” was overreaching. Yet its murky accusation of “making references to ‘cockroaches,’” as evidence of racial discrimination, insinuates that his use of the word was somehow racially charged. That is false.

The discussion in which Kilborn used the word took place on January 23, 2020, nearly a year before the exam that started the trouble. That date was revealed to Kilborn for the first time in the findings letter, and he only recently obtained the school’s recording of that class. In that discussion, he tried to get the students to place themselves in the unfamiliar mind-set of defendant-company directors making a cost-benefit assessment of settling what they considered frivolous litigation to avoid expensive discovery. A student asked him whether it would be better for those directors to defend such lawsuits and collect victories, thereby deterring future litigation. Kilborn replied:

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?

Indeed, a few sentences after claiming to have substantiated that Kilborn had “referred to minority civil-rights plaintiffs as ‘cockroaches,’” the “Investigation Report” acknowledged that he had done no such thing: “Although Professor Kilborn did not explicitly call a racial minority a ‘cockroach,’ OAE’s review of the class recording substantiates that he referred to plaintiffs who file egregious claims as ‘cockroaches’ in the context of discussing a legal case that involved a racial-minority plaintiff.” The word “context” is highly misleading here; the immediate context was the Subway litigation, not the minority plaintiff’s case that had been discussed earlier. And Kilborn was describing the thought processes of company directors, not his own thoughts. He says: “I was simply using a colorful and vivid expression to describe all manner of hidden ills that might suddenly stream out into the open, like in the classic horror-movie scene in which cockroaches stream out of the walls of a house.”

There is no reasonable way to read his statement as directed at minorities. University officials not only ignored this; they appear to have actively concealed it. No wonder the report that was given to Kilborn was so vague about what he was supposed to have done.

The rest of the findings letter is no better. It declares the exam question to be “harassing conduct.” It goes on: “Significantly, you made the ‘homicidal’ comment on January 7, only one day after violence at the United States Capitol Building, at a time when concerns over public safety were heightened nationwide.” (The “significance” is not spelled out, but it is preposterous to claim that the events at the Capitol shed any light on Kilborn’s remark.) And so on. Only those already committed to a predetermined finding that Kilborn had done something, anything, wrong could have issued judgments like these.

But the worst thing that Kilborn did, in the view of the letter, was to protest his mistreatment: “Your comments expressing anger, dissatisfaction, and disappointment related to issues of race and created fear and intimidation that were reasonably interpreted as such … Your reactions to minority students’ expressions of extreme disappointment in the exam question demonstrated racial insensitivity and even hostility to those voicing concerns about a racially charged topic.” Evidently, if minority students make unfounded accusations of racism, the OAE appears to think it is racist to become upset. The overall impression is of an adjudicator who regards Kilborn’s exoneration as unthinkable, who is struggling desperately to avoid that conclusion.

Kilborn has recently settled a legal claim against the university (in which, astoundingly, the school unsuccessfully tried to get him to sign a nondisclosure agreement forbidding him to comment on his case). He told me that, a few days after the settlement was announced, “my interim dean turned around and denied me a first-in-several-years across-the-board 2-percent ‘merit’ raise, despite my (by her own admission) extraordinary scholarship production and service. I got her to admit in writing that she had denied me this $3,000 raise SOLELY due to my purported violation of the discrimination policy on the basis of OAE’s findings. I had had quite enough by that point.” Now, he says, “I feel I have an obligation to carry forward this fight. I’m far less vulnerable (I hope) than many of my colleagues across campus, so I have to fight for them.”

We are dealing here with administrators who seem to regard truth as an inconvenient obstacle and who appear not to mind convicting the innocent.

The protests are no better. The Black Law Students Association has issued defamatory statements that go even beyond the letter’s irresponsible findings. Kilborn, they insist, “has used threats of homicide.” When asked by The Chicago Crusader if “it is true that Kilborn called Black law students ‘cockroaches,’” the president of the BLSA said, “Yes, he did. There are reports that came out of the Office of Access and Equity that have everything that he has done from the claims all the way to what has been sustained and confirmed that he has done and those discrimination tactics that he has used over the years.” A joint letter from the BLSA and the UIC Student Bar Association declares: “OAE’s findings substantiated student claimants’ allegations that Kilborn confessed to stating to a Black student he would ‘become homicidal’ … Critically, students fear that Professor Kilborn may put his ‘homicidal comment’ into action.” These statements are false and libelous.

The organization did no favors to a great civil-rights leader, the 80-year-old Jesse Jackson, when it persuaded him to join this nonsense. At the rally demanding Kilborn’s firing, Jackson said, “Students deserve an environment that’s not hostile. We must act; we will act.” Obviously he trusted their account of what had happened. He, too, has been badly mistreated.

It is embarrassing to have to say it, but the antiracism movement needs to regard truth as its friend. Episodes like this tend to discredit it and to reinforce the notion that complaints of racism are overblown.