Picayune Extra: Dissenting views on the controversy at UIC Law
Picayune Extra: Dissenting views on the controversy at UIC Law
Critics of Professor Jason Kilborn have their say
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Reader response was very heavy to my lengthy lead item last Thursday about the fracas touched off when University of Illinois at Chicago Law School professor Jason Kilborn administered a final exam with a question that referred to “profane expressions for African Americans and women” and used redacted versions of those words.
A group of students had a strong negative reaction and their protests resulted in a lengthy suspension for Kilborn. Read the whole post for all the background. I know it’s long, but I wanted to include all the relevant context.
The overwhelming majority of letters and comments I received supported Kilborn and were critical of both the student protesters and the administrators who took their complaints seriously. But in Z-mail today I want to give a platform to the views of those who tended to support the student protests.
My response to these letters follows.
Notes and comments from readers —lightly edited —- along with my responses
Arlene E. — I am a former professor who has taken and administered plenty of final exams, and my heart and mind are overwhelmed to think that a professor could, for years, subject students in the hyper-stressful final exam situation to the thoughts and feelings those half-expurgated words stimulated.
An exam is not like a class. One’s future often hinges on an exam. A student’s understanding of civil procedure can be measured without an exam that sticks a finger in a still-open wound. That no one called professor Kilborn on it before does not mean it never troubled anyone before.
Students do not need to be toughened up for real life courtroom shocks by having their deep awareness of inequity poked into life by a question on a crucial exam.
Kilborn’s exam question was appalling, his apology fine, his “homicide” wisecrack tone-deaf, and his comeuppance earned.
Frederick S. — Your account gives me a bad vibe about the professor. It seems like he is a little obsessed with these racial slurs. Talking in a stereotypical dialect, as he did in a class in January, 2020, comes across to me as akin to putting on blackface. And how is it possible in this day and age for Kilborn to be comfortable referring to the most toxic slur used against African Americans? Maybe because he’s gotten away with it for so long and gotten a bit arrogant about his teaching approach.
Ellen McK. — As a former law student, I know just how high the stakes feel in a law exam. Putting references to explicit words like that in the exam question would make it fraught for some but not others in a way that feels inherently unfair. That’s different from the use of an allusion to a slur in a less charged context. Also, Kilborn’s use of the word “homicidal” in a subsequent Zoom call with a member of the Black Law Students Association suggested a disturbing level of hostility.
JW — I do not fault the students of any race for raising their objections. They are in law school to learn how to recognize grievances and to learn how to fight. In 2020, after George Floyd was killed and riots broke out in Minneapolis and D.C., and Trump used troops to push non-violent protesters out of the BLM plaza, wasn’t it tone deaf of professor Kilborn to include that question in December of 2020?
The ground beneath us is shifting. What is considered acceptable one day is not the next. I know it is not easy. But do you really think the students should have been happy with, “Oops! It was a boo-boo. Won’t happen again”?
Dave K. — Nearly anyone reading abbreviations like the ones Kilborn used on his exam (N—— and B——-) this thinks the full words in their minds. Suppose you receive an email that includes “F—- Y—”. Do you dismiss it as an allusion or take it personally?
I’m a University of Illinois law school graduate. The stress felt in law school exams is more than enough without questions like this one. Anyone with any empathy should be able to understand and anticipate the impact the use of words like this would have on already stressed-out students.
The abbreviated racial epithets were glaringly out of place in this exam question, irrelevant to the legal question and should have been omitted.
Patricia T-L. — As a white person I am acutely aware that I do not know what a Black person feels on a daily basis, so I choose to accept at face value what they say about how they feel with regard to certain expressions. Additionally, as a feminist I recognize that many men do not understand when their traditionally accepted but inappropriate comments toward women are found to be offensive (e.g., references to physical appearance, sexuality, weakness, oversensitivity, intonation, etc.).
At this time in our social history many of us are trying to ferret out and confront our unconscious biases, whether they be about race, gender, ethnic affiliation, sexual preference, and more. We have a lot to learn from one another. As difficult as this situation is for the professor and his students, it is a helpful reminder to keep our minds open to what others think and feel, without judgment.
My response:
One of the fundamental questions at issue here is whether the Black students in Kilborn’s class should have been disturbed, terrorized and otherwise traumatized as they said they were when encountering on an exam question an acknowledgement that bigots in our society still use the most poisonous, degrading slur for African Americans.
The vast majority of readers who responded to this story belittled the response of the students to the point of openly doubting their sincerity. How could students of the law — a field that every day deals with the most reprehensible behavior of individuals — be so fragile that the mere reminder of the existence of bigotry would send them into a tailspin?
Most of us have agreed to say and write “the N-word” rather than to use the word itself even when quoting others. This helps to underscore how forbidden it has become even though, as others have observed, those who hear or read “the N-word” automatically translate it in their minds anyway.
If there is now a consensus that we should refer to this slur in an even more oblique fashion — that the use of “the N-word” or “N——” is now also beyond the pale — I’m not aware of it. The Black Law Students Association and representatives of the Rainbow PUSH Coalition didn’t respond to me when I asked them this question last week.
Did the murder of George Floyd and associated racial unrest in 2020 change the rules of polite discourse in every situation? Or only in high-stress, high-stakes situations such as final exams?
Several of the dissenters above advanced the view that stronger prohibitions should apply when it comes to exams. Dave K., in particular, wrote that “the nature of the racial epithets themselves was glaringly out of place in this exam question, irrelevant to the legal question, and should have been omitted.”
Here is the full question Kilborn put to the students:
After she was fired from her job, Plaintiff sued Employer under federal civil rights law, claiming employment discrimination on the basis of her race and gender. Employer also revealed that one of Plaintiff’s former managers might have damaging information about the case, but no one at Employer knew where that former manager was, since she had abruptly quit her job at Employer several months ago and had not been heard from since. With nothing to go on but the manager’s name, Employer’s lawyer pieced together several scraps of information and concluded that this former manager must be located in a remote area of northern Wisconsin. Employer’s lawyer spent $25,000 to hire a private investigator, who successfully located the former manager in northern Wisconsin. Employer’s lawyer traveled to meet the manager, who stated 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.
Later, Plaintiff’s lawyer served [another discovery demand, omitted, and] an interrogatory demanding the identity and location of any person with any information related to the termination of Plaintiff’s employment at Employer or potential discrimination against Plaintiff by Employer or any agent of Employer.
Can Employer identify the former manager but properly withhold her location, as this is the product of a significant amount of work and expense by Employer’s attorney?
Since I’m not a lawyer, I asked Kilborn for his defense against Dave K.’s critique. He wrote:
The question concerned an employment discrimination scenario, and the evidence concerned a former manager whom someone had heard saying she had been called these slurs. This is explosive and directly relevant evidence, putting the sharpest point on the desire for the employer’s lawyer to resist turning it over. I was testing whether my students could resist their natural desire to help their client at all costs—no, you have to turn it over! This is not at all tangential!—so I used an extreme example of something a student might try to characterize as “work product” because the lawyer worked so hard and spent so much money trying to find it. It’s not. This is a common scenario where lawyers claim things are “work product” when they’re not.
But let’s assume for the sake of argument that the rules had changed and that in December 2020 Kilborn ought to have known better than to use a question that relied upon a reminder that really awful racial slurs exist.
He’d used that question roughly a dozen times on final exams in the past without complaint or incident, he said, but my correspondents above found it “tone deaf,” “appalling,” “arrogant,” and a “finger in a still-open wound.”
Let’s acknowledge that those of us with white privilege are not entitled or qualified to judge what is or isn’t offensive to Black people, and let’s take as a given that Kilborn erred when including even redacted slurs in the exam question.
Was his error deliberate, though? That’s the even more fundamental question at the heart of this controversy.
Had Kilborn finally succeeded, after failing for many years, to rattle Black students by indirectly invoking the ugliest of slurs?
That assumption seems to underlie the position of his critics such as JW, who sarcastically asked, “Do you really think the students should have been happy with, ‘Oops! It was a boo-boo. Won’t happen again’?”
My answer is yes. Maybe not happy, but certainly satisfied.
I really think the students and the administrators at UIC Law should have recognized that Kilborn relied on years of experience and his own honest reading of the linguistic and legal landscape in crafting what he thought was a relevant question for his final exam.
His apology email to the his students was thorough and unreserved:
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. … 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. (Read the entire letter at the original post)
Should that have been good enough? I think so.
But what Kilborn didn’t seem to realize, and what I myself have only started to realize in the last year or so, is that furious people no longer seem to accept apologies. They tend to see them instead as signs of weakness, justification for their wrath and encouragement to escalate their crusades.
Instead of accepting Kilborn’s expression of regret and his promise not to use the offending question again, UIC, egged on by student protesters, launched an investigation into Kilborn that turned up only a few minor alleged offenses — adopting a vernacular accent when quoting one line from a rap song in January 2020 was one; saying that he wondered if the law school dean feared the accusations against him might make him “homicidal” was another — that resulted in a banishment from the classroom that is still ongoing.
You can read the other alleged offenses as well as his response to them on the original post.
Protesters are now demanding Kilborn be fired. He will have to submit to diversity training this semester if he wants to return to teaching in the fall.
As I see it, UIC squandered an opportunity to increase understanding and respect all around.
However you see it, please use the comment thread below to share your further thoughts.
Ya’ gotta see these tweets!
I often run across tweets that are too visual in nature to include in the Tweet of the Week contest (the template for the poll does not allow the use of images). Here are a few good ones I’ve come across recently.
And finally a Wordle joke….
The actual Tweet of the Week poll will remain open until Wednesday afternoon. I’m discouraged that the one about Humpty Dumpty isn’t doing better than it is, but there is still time!
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Not to be sycophantic, but I couldn’t agree more with your analysis of the UIC matter. As a retired lawyer, I recall with crystal clarity what it’s like to sit in the exam room with an empty blue book (yup!) open in front of me, focusing as hard as possible on the fact pattern. It never would have occurred to me to critique said fact pattern, as to do so is, among other things, a loss of precious time. That said, I understand that times, language and the notion of triggers have changed and that the fact pattern truly offended students. But a sincere apology should have sufficed and to carry this to the extent that administration has done seems performative at best.
This obfuscation is why lawyers are hated.