Seventh Circuit Revives Chicago Law Professor’s Free Speech Retaliation Claim

Bloomberg Law, Law Professor's Claim Over Exam Question Gets Revived on Appeal:

A University of Illinois Chicago School of Law professor convinced the Seventh Circuit to revive part of his suit against the school for allegedly suspending him over referencing a racial epithet in an exam question [Kilborn v. Amiridis, No. 23-03196 (7th Cir. Mar. 12, 2025)].

The lower court erred by tossing Jason Kilborn’s retaliation claim without properly weighing the professor’s constitutional protections from adverse action for classroom speech, the US Court of Appeals for the Seventh Circuit said Wednesday.

Courthouse News Service, Seventh Circuit Revives Chicago Law Professor’s Free Speech Retaliation Claim Against University Officials:

"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."

ABA Journal, Law Prof Suspended Over Exam Question, Class Discussion Can Sue For First Amendment Retaliation, 7th Circuit Says
Law360, 7th Circ. Revives Suit By Law Professor Disciplined Over Exam
Jonathan Turley (George Washington), University of Illinois Professor Prevails on Appeal Over his Use of Racial Slurs on Exam
Eugene Volokh (UCLA), Professor Can Continue with First Amendment Claim Over Denial of Raise for Including Expurgated Slurs on Exam
Howard Wasserman (Florida Int'l), Kilborn v. UIC
Keith Whittington (Yale), Important Academic Freedom Decision From the 7th Circuit in the Case of U. of Ill.-Chicago Professor Jason Kilborn

Kilborn v. Amiridis, No. 23-03196 (7th Cir. Mar. 12, 2025):

After Professor Jason Kilborn included an expurgated racial slur in a law school exam question, University of Illinois Chicago officials opened an investigation into allegations that he had created a racially hostile environment for non-white students. The University found that Kilborn had violated its nondiscrimination policy and suspended him from teaching until he completed a diversity training program. He was also denied a two percent raise. Kilborn sued several University officials, alleging that they had violated his constitutional rights to free speech and due process. Because a university professor’s academic speech receives qualified First Amendment protection under the Supreme Court’s decisions in Connick v. Myers, 461 U.S. 138 (1983), and Pickering v. Board of Education, 391 U.S. 563 (1968), we reverse the dismissal of Kilborn’s retaliation claim. But we affirm the dismissal of Kilborn’s remaining federal claims.

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