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University of Illinois Chicago pledges to continue investigation into law prof’s exam question

John Marshall Law School Building

The University of Illinois Chicago's John Marshall Law School. (EQRoy /

Last month, FIRE sent a letter to the University of Illinois Chicago, raising our concerns that a public statement by the university’s administration suggested it had opened an investigation into a question on a law professor’s exam. That question, a hypothetical fact pattern involving an employment discrimination lawsuit in professor Jason Kilborn’s Civil Procedure II final exam, contained self-censored references to a racial slur and a “profane expression[] for women,” transcribing them as: “‘n____’ and ‘b____’.” 

Last week, the university responded to our letter, confirming that it was, in fact, conducting an investigation into Kilborn’s exam and rejecting concerns about academic freedom. The university — after alleging that there are other, unidentified issues and reports regarding Kilborn that it is also currently investigating, but will not presently disclose — argues in a footnote:

Your letter quotes an opinion by the Sixth Circuit Court of Appeals [here] for the proposition that an instructor’s speech, “however repugnant,” which is “germane to the classroom subject matter [Introduction to Interpersonal Communication],” is protected by the First Amendment. While briefly referencing the requirement that classroom content in fact be “pedagogically relevant,” your letter argues that the content delivered by Professor Kilborn in his December 2020 examination falls within the scope of the Sixth Circuit opinion and should therefore be unreviewable. The University respectfully disagrees with the suggestion that the content of the examination at issue here is necessarily germane to the study of civil procedure (and specifically to issues surrounding the application of attorney-work product) or that such content is unreviewable. Rather, the pedagogical relevance of the classroom content used by Professor Kilborn is indeed reviewable, and it is an appropriate subject for review using the University's investigation and shared governance processes.

Nothing, of course, precludes the university’s administration — or its faculty, its students, or the general public — from criticizing Kilborn’s question or questioning whether another form of it might have been more appropriate or effective. Eugene Volokh, for example, makes the argument that academic freedom concerns may not require the same deference be granted to a professor’s design of an exam as is granted to faculty members’ lectures or materials, as the “purpose of an exam is to evaluate student knowledge . . . not, as with the class itself, to promote debate or to teach the facts (however upsetting the facts might be) or to accustom students to the norms of [the] legal profession (which generally include accurate quoting of unpleasant facts).” 

However, even if the university could, as Volokh suggests, conceivably “set [this approach] forth as a matter of school policy and not just a matter of professor discretion,” the University of Illinois Chicago’s faculty — the body best suited to address academic matters — has not done so, and its response is currently being driven not by faculty, but by administrators. 

Moreover, the university’s position — that administrators can launch a formal investigation into the pedagogical relevance of part of the question — takes a considerably narrow view of what is pedagogically relevant to a question about civil procedure. Even assuming for the sake of argument that the university’s administration can initiate a formal investigation into whether the question is pedagogically relevant, it should resolve that question expediently in favor of Kilborn. Civil procedure is the method by which disputes are resolved, and most civil procedure examination questions will, as a matter of necessity, rely on hypotheticals founded in other areas of the law. 

Kilborn’s question is undoubtedly one about civil procedure, even if it necessarily relies on another substantive area of law in order to raise that question and, in the process, uses language (or, at least, a censored version of it) that some find upsetting. That is a far cry from, as the AAUP has described, the “persistent intrusion of matter, controversial or not, that has no bearing on the subject of instruction,” nor is it language that is — as distinguished in the Sixth Circuit case — “gratuitously used . . . in an abusive manner.” Accordingly, UIC should not investigate or censor it.

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