Kilborn v. Amiridis, No. 23-3196 (7th Cir. 2024)

On February 22, 2024, the AAUP filed an amicus brief in the United States Court of Appeals for the Seventh Circuit in support of a law school professor who faced retaliation from his university for a question he included on a final exam, and for other classroom speech he engaged in during teaching.

The case arose when the University of Illinois at Chicago retaliated against Professor Jason Kilborn, a tenured professor in the university’s law school, following on-campus controversy and a subsequent investigation focused on Kilborn’s teaching. Furor had been sparked by Kilborn’s inclusion of partially redacted derogatory terms for African Americans and women in a hypothetical fact situation involving an employment discrimination case on a final exam he wrote for his civil procedure class. The university investigated Kilborn and issued findings that he had violated the harassment aspect of the university’s nondiscrimination policy because of his exam question, remarks made during a lecture that used the terms “lynching” and “cockroaches” in connection with frivolous litigation, Kilborn’s use of African American Vernacular English when quoting lyrics from a Jay-Z song during classroom discussion of a legal case involving pretextual race-motivated police stops, and remarks made outside of the classroom about the exam controversy. Kilborn was suspended for two semesters and declared ineligible for an across-the-board raise. He also was required to attend an eight-week diversity course, write five self-reflection papers, and meet with a trainer who would gauge Kilborn’s “engagement and commitment to the goals of the program.” Only upon successful completion of the program would Kilborn be allowed to return to class. Kilborn filed suit in the US District Court for the Northern District of Illinois, alleging, among other things, a claim for First Amendment retaliation. The district court dismissed Kilborn’s case, ruling that Kilborn’s retaliation claims failed because his speech did not involve a “matter of public concern.”

The AAUP’s amicus brief, which should prove useful to the court of appeals due to its use of key AAUP statements on academic freedom, the freedom to teach, and freedom in the classroom, makes two principal arguments. First, the brief urges the coourt of appeals to expressly recognize that the holding of Garcetti v. Ceballos does not apply to speech related to scholarship or teaching. In Garcetti, the Supreme Court held that the First Amendment does not protect the speech of public employees when it is made “pursuant to their official duties.” But the court, citing concerns relating to academic freedom, expressly declined to decide whether its holding would apply to “expression related to academic scholarship or classroom instruction.” That question remains undecided in the court of appeals, but every other court of appeals to directly consider the issue has held that Garcetti does not apply to academic speech. In asking the court of appeals to join its sister circuits, the AAUP’s brief explains that the ability of public university faculty to engage in scholarship and teaching without interference from their government/employer is an essential component of academic freedom, which the Supreme Court has long recognized as being “a special concern of the First Amendment.” Moreover, the basic policy rationale underlying the Garcetti decision—that government control over public employee speech is necessary to ensure the efficiency of government programs—does not apply to the scholarship or teaching-related speech of public university faculty. As foundational AAUP statements explain, academic freedom is essential to the functioning of the university as an institution, and a university cannot function if university officials are permitted to censor academic scholarship, teaching and related instructional speech, or engage in after-the-fact retaliation.

Second, the AAUP’s brief explains that the district court erred when it concluded that Kilborn’s speech did not involve a “matter of public concern.” A university’s adherence to the principle of academic freedom is essential to the fulfillment of its public mission, as foundational AAUP statements establish. Accordingly, any speech that falls within the academic speech exception to Garcetti—which Kilborn’s speech clearly does—also involves a matter of public concern. Furthermore, Kilborn’s speech directly related to subjects that are matters of concern to the broader community—racial discrimination in the case of the exam question and the Jay-Z lyric, and frivolous litigation—and therefore addressed “matters of public concern.”