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Friday, January 15, 2021

Facts, epithets, exams, and anti-racism (Amended)

Above the Law reported about a brewing controversy at UIC-John Marshall involving Prof. Jason Kilborn and his Civ Pro exam.

Kilborn included the following short-answer question on his exam:

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. [discussion of other evidence omitted]  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.

The question asked whether the employer could refuse to disclose the witness's location (while disclosing her name) on grounds of work-product privilege.

The school's BLSA chapter responded with a petition. It calls for, among other things, multiple sections of all mandatory classes (so students can avoid professors such as Kilborn with a "history of bias"), Kilborn's resignation from the academic affairs committee, and an "open dialogue event" with Kilborn. The ATL piece is somewhat sympathetic to Kilborn, surprising, given that site's general rage against professors who use racist language and epithets in class.

Amendment: Kilborn was subject to university sanction--the school placed him on administrative leave, cancelled his new-semester classes and committee assignments, and barred him from campus. There is some uncertainty over the grounds for the university sanction or the process followed; I have deleted comments or speculation from the original post about that process. Regardless, the exam question sparked controversy and triggered a student petition within the school; that raises teaching issues worth thinking about. The post focuses on those.

Please note that I have never met Jason in-person. I know of him from posts to the Civ Pro profs listserv, where he has discussed infusing anti-racism and racial-justice issues into the Civ Pro curriculum. So this is not defending a friend. But I am genuinely curious as to what was wrong with the question. What are the rules, so professors can avoid creating "momentous distraction and cause[ing] unnecessary distress and anxiety" or demonstrating "lack of respect, decency, and civility?"

    • The question did not use explicit and complete epithets, which had been the flashpoint for past controversies over what professors said in class or wrote in materials. ATL has covered those controversies at length, sharply criticizing faculty for mentioning the word. Eugene Volokh and Randall Kennedy present the contrary view, relying on the "use-mention" distinction.

    • Is the rule that bowdlerized reference to epithets is not OK? What if the test had the witness say "n-word," as in "she 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-word and c-word"? Are all references to epithets off-limits?

    • Is it only racist epithets, given the focus on "centering race" in the academic discussion? What if the question used a misogynist epithet or anything other than a racist one? What if this question only had the employer calling the plaintiff a "c____" or a "b____"?

    • If bowdlerized use of the word is not OK, is all reference to racist epithets not ok? What if that last sentence of the facts had the witness state "she quit her job at Employer after she attended a meeting in which other managers expressed their anger at Plaintiff, and referred to her with profane expressions for African Americans and women"? Does the reference to the epithet, even this obliquely, cause the same distress and anxiety? Students will be as aware of the "profane expression for African Americans" being referenced as by saying it with ____ or *** or "n-word."

    • If any reference or hint at epithets is not ok, then does it follow that exam questions touching on racist discrimination are off-limits? What if that last sentence of the exam had said the witness "stated that she quit her job at Employer after she attended a meeting in which other managers expressed their anger at Plaintiff, and talked about how much they hated having to employ African-Americans"? The question reveals discriminatory animus without using the word. Of course, the legal issues might come out differently in that case than in an epithet case. If this is problematic, then it seems to eliminate one major litigation area, or at least certain types of cases in that litigation area, as a testing subject; I discussed this issue several years ago.

    • How much does subject matter? The question tested work-product privilege, so the petition argued that the hint at the epithet served no educational purpose. Would the reaction have been different had the question been asked in, say, Employment Discrimination? For what it is worth, a friend who teaches that subject often tests with a fictional religion with fictional stereotypes and fictional epithets. But does that capture the same idea, given the effects of history? It has been decided that this word is the worst in the English language, so bad it cannot be written or spoken or even mentioned. It follows that its use may affect the outcome of a case in a unique way not captured by a fact patter in which someone calls a member of the Church of the Shiny Rock (my friend's actual example) a "Rockette" (I made that one up).

    • This may create unique problems for Civ Pro (and Fed Courts, Evidence, and Civil Rights--basically my entire teaching package). The course material itself is not "sensitive," compared with Con Law or Immigration or Employment Discrimination. But teaching and testing Civ Pro requires that we adopt and use the substantive issues that reach court and must be litigated under the rules we are teaching and testing on. One could argue that there is always another way to test on work-product privilege--use a slip-and-fall tort claim that will not affect anyone's feelings. But one could respond that discrimination claims comprise a substantial piece of the federal docket and it makes no sense to ignore such common claims. Kilborn told ATL that the class casebook uses a lot of employment cases, so that context pervaded the course and made sense as a testing vehicle. And, as I wrote several years ago, the full range of litigation subjects and issues should be fair game.

    • Kilborn also told ATL that the question was designed to illustrate how civil litigation can be used to help women of color overcome the burdens they face in the workplace. And the egregious nature of what the witness reports the employer saying may be relevant to why the employer was so determined not to reveal the witness and why the plaintiff would have a "substantial need" for the information. In other words, just as the precise nature of discriminatory conduct is important "context" in a substantive E/D class, it may provide essential "context" for procedural questions. Given Kilborn's intent, there is great irony that this question has led to these consequences.

Closer to home, I have been watching the litigation in Stallworth v. Nike, a lawsuit by an African American couple alleging that they were subjected to "shopping while Black" in a Santa Monica Nike store and that the SMPD had an agreement with the area stores to arrest or detain anyone on the word of the stores. The complaint runs 50 pages and 200 paragraphs, although without detailed allegations of how Nike and SMPD worked together to create action. The complaint contains pages and paragraphs about the plaintiffs' personal and professional histories, Nike's role in social justice, and last summer's protests; they want to frame the case--likely for consumption by the public rather than the Court--within the broader anti-racism movement. I considered assigning this as one of my in-class pleadings, as an opportunity to discuss the propriety and effectiveness of pleading-as-press release and to analyze the sufficiency of the state-action allegations. I decided against it--partly because it is a long pleading (the other complaints I use are <20 pages) and partly because I could not predict student reactions. There are no racial epithets, but the case touches a raw topic.

Posted by Howard Wasserman on January 15, 2021 at 05:25 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink


One of the complaining students claimed that this question caused her to experience heart palpitations during the exam. How can anyone deny that such a claim is simply performative aggrievement? Everyone reading this knows that she did not experience heart palpitations from reading this question. It seems likely to me that she knew she performed poorly on the exam and undertook this performance to escape the consequences.

Either way, nobody was harmed by this question. Anyone who suffered harm during this exam was not harmed by this question, but by their own mismanagement of whatever mental ailments afflict them. Given this, the most pressing topic of discussion would be how to appropriately disincentivize administrators from reacting in such a disturbing, cowardly manner.

Posted by: AnonNahNah | Feb 4, 2021 11:16:11 AM

IMHO, the complaining students should have been invited to take a semester or two off from school while they reconsider whether they were temperamentally qualified to be attorneys.

Posted by: Douglas B. Levene | Jan 18, 2021 11:38:49 AM

It's just funny that after serving as a cheerleader for cancel culture, you are shocked that it's coming for your own. How long did you expect academic freedom to survive when academics are leading the cancel culture charge? Why shouldn't students turn the same eye to their professors that they are taught to look at everything else with? There's no reason professors shouldn't be treated like other government employees and held responsible for their speech and conduct on the job. Given the recent output of universities, giving extra protections to professors hasn't worked out too well for the general population.

And if you don't want to be accused of hypocrisy, perhaps you shouldn't behave in such a blatantly hypocritical manner.

Posted by: jph12 | Jan 17, 2021 6:09:35 PM

"You can definitely teach (and test) on such issues, but you should exercise good judgment in doing so and keep context in mind."

That seems too general and too subjective to provide any real guidance or draw any meaningful lines. So I go back to the specific questions and possible lines from the OP: Is this limited to epithets? Can a question refer to racist epithets without using any part of a word? Can a question describe generally racist behavior and discriminatory animus unconnected to epithets? As for context: Is the appropriate context classes where this stuff might be part of the doctrine (e.g., Employment Discrimination or Con Law) but not a class such as Civ Pro, where the material can be tested in anodyne situations. And is race different or do these rules apply to any identifiable historically disadvantaged group?

I can imagine (and have seen, see my linked post about the UCLA exam) similar reactions in response to everything mentioned above. So that experience suggests this is not a leap.

JPH: I explained that academic institutions, public and private, are unique. I explicitly and jokingly acknowledged the self-interest in that position, although I would hold the same view about universities even were I not an academic. You are free to challenge that view. But your response was to basically call me a hypocrite, using snark that does nothing to further the discussion or even the minor sub-point. So yes, I deleted the comment.

Posted by: Howard Wasserman | Jan 16, 2021 7:04:42 PM

Jr, the word is evocative enough that it doesn’t need to be spelled out for us to know what it means. If you lack the empathy and imagination to understand why someone who may have been called it would object to suddenly and needlessly seeing it during the stress of a timed exam, that’s on you.

Posted by: anon | Jan 16, 2021 6:30:26 PM

No one used a racial epithet on the exam. “n____” is not a racial epithet. As for lack of controversy at other places, I take this to just be because the arbitrariness of the standards. Someone deciced to get offended in this case, at another place this might not have happened.

Posted by: Jr | Jan 16, 2021 4:06:59 PM

JR: Hindsight is 20-20 but given the amount of professors who teach on race and the law with zero incident, I’d hazard the opposite. Despite all the hand-wringing on this thread about where to draw the line, it doesn’t exactly take a genius to realize that using a racial epithet on an exam would disproportionately impact black students.

Posted by: anon | Jan 16, 2021 3:21:09 PM

My guess is that the commentators who criticize the professor would have had no idea themselves that the exam question could have been considered controversial.

Posted by: Jr | Jan 16, 2021 2:23:24 PM

@Howard, it’s quite the logical leap from this particular exam question was bad to we can never teach about race in the law at all. As multiple commenters have already pointed out, you can definitely teach (and test) on such issues, but you should exercise good judgment in doing so and keep context in mind.

And someone might theoretically find something emotionally charged =/= a (protected) class of people might reasonably find something emotionally charged because of their demographic. Anyone who’s studied the 14th amendment at all should have no issue grasping this distinction.

Posted by: Anon | Jan 16, 2021 1:58:51 PM

Nice demonstration of the actual "preferred first speaker" issue. You are free to cast aspersions as much as you want to, but when someone else points out your hypocrisy you delete their comment. You don't want an honest conversation, just one you can control.

Posted by: jph12 | Jan 16, 2021 12:49:08 PM

I share Anon's sentiment to a large extent. That said, I still think the onus to come up with solutions is on everyone's (well, mine) favorite legal expression, the "lowest cost risk avoider". Here, that would be the UIC prof, who is the most sophisticated party in this circumstance. And, at least from the ATL excerpt--in fairness, maybe he said other things elsewhere--it wasn't clear that he put much or any thought into how people would react to that language, why they might react that way, and what could be done to prevent that (assuming of course that he'd be concerned about the reaction). I don't think it's a major imposition for that to happen at least once a decade, i.e., how long he was recycling that exam prompt.

Posted by: hardreaders | Jan 16, 2021 12:16:27 PM

If someone wants to have a conversation, I am open to it. If you are going to implicitly (or explicitly) cast aspersions, I will delete your comments.

Posted by: Howard Wasserman | Jan 16, 2021 12:03:48 PM

This is a situation where I get both sides. As someone who used to work in employment discrimination litigation, the professor is right that sexual and racial discrimination are some of the most common forms of employment discrimination. I understand where he is coming from in wanting to include such topics on the exam. On the flip side, I do understand and have empathy towards students of color taking the exam and seeing a racial epithet in such a highly stressed situation.

I'm not sure how to resolve this problem, but there must be a way to resolve it that does not resort to de facto banning the testing of sensitive legal issues that are important in a specific course.

Posted by: Anon | Jan 16, 2021 11:39:59 AM

JPH: That UIC is a public institution matters--the First Amendment limits the government's power to "cancel" speech and speakers it does not like. Were John Marshall private (pre-UIC purchase), it still would trigger issues of tenure and academic freedom; private universities purport to hold themselves to different standards, voluntarily limiting their own power to "cancel" speech and speakers they do not like. So I would call a private institution out for failing to abide by its standards.

I will not deny my self-interest, as an academic, in seeing academic institutions as different.

Posted by: Howard Wasserman | Jan 16, 2021 11:07:21 AM

It is interesting that this conversation sounds much as it did five years, when I wrote the post linked above about a prof whose First Amendment exam asked whether Michael Brown's stepfather could be prosecuted for incitement for shouting "Burn this motherfucker down" during a Ferguson protest. (Correct answer: No). No epithets or hints of epithets used, but it provoked a similar reaction. And the conversation in that post settled around the same unanswered question--many subjects or topics are going to be placed off-limits for testing (and, it would follow, teaching) because all will be emotionally charged to someone in the class.

Posted by: Howard Wasserman | Jan 16, 2021 11:01:11 AM

Surely the point is that a moderately intelligent adult with good sense should be able to figure it out singlehandedly. And I would think anyone in the law prof field easily clears that bar. It’s not exactly an obscure aspect of an arcane subject matter. People from all walks of life—not just the particular corner of society covered here—seem able to figure it out on a daily basis. Case in point, we don’t hear any news about the vast majority (my estimate) of law profs who have no trouble avoiding this issue.

To me, the suggestion that there need to be finely detailed “rules” spelled out in advance just feels like evading responsibility. It turns ignorance (sometimes deliberate, but I don’t think so here) or obliviousness into a virtue. And it conveniently makes the person—here, the UIC prof—the “real victim” when he gets in trouble, because he was unfairly left out when copies of the imaginary rules were being distributed. Oh, don’t cry for me Argentina. I think it also somewhat parallels a common refrain when corporations get judgments they dislike. They will say it’s unfair because the legal rules in question weren’t 100% predictable beforehand. As if that’s something anyone is ever entitled to—like corporations should be given free advisory opinions for everything they want to do, when certainly individuals don’t even get that luxury. If life were always completely predictable, nobody would ever need good judgment. But yet we have a law prof, where good judgment is supposed to be a selling point for lawyers, displaying a lack of the same and somehow claiming it as a defense.

None of what I’m saying is novel in the slightest or hasn’t been repeated exhaustively in this and other fora. But here I am saying it again regardless. What difference it will make I can’t tell. Fun times I guess.

Posted by: hardreaders | Jan 16, 2021 10:21:58 AM

@TruePath Your points don’t make very much sense and you seem to be bending over backwards to find a way to justify this exam. (Although, I should note I would agree that the consequences for the prof don’t match the offense.)

First, even if you can only include racially charged info where it’s relevant to the question, there’s still a lot to test. I can think of a whole slew of questions just off the top of my head in a variety of subjects, which is probably because we test how law applies to situations. Whether or not you know that a detail is a red herring doesn’t tell you how the law would come out. (And even if you can never include racially charged language on an exam question...is that really so bad?) The point is that if you’re including details that you can reasonably expect some people to react strongly to, there should be a good reason for that inclusion—not just to add color to a question on work-product doctrine.

And on your points regarding reacting strongly: The second point is inconsistent with my experience of reality. Never have I gone over a record with a senior partner without first having digested that record myself—not because the record might “trigger” me but because I’d like to be prepared for the conversation. And maybe it could come up suddenly in a deposition, but you’d generally expect it based on the nature of the case. I do agree that it’s better to expose students in a safe environment, but I just disagree that a timed exam is that environment, except where students know to expect such fact patterns going in.

Third...I really don’t think it’s a stretch to assume that at least some people of color would react strongly to a slur that’s very emotionally charged and that they may have direct experience with. I’m not Black, but I can assure you that having been called a b**** and having been the subject of harassment has done nothing to better prepare me to answer this question.

Posted by: YouAreClearlyAWhiteMan | Jan 16, 2021 8:46:24 AM

Surely the point is that there are no rules so that anyone can be condemnned at any time for either talking too much or not enough abot racism?

Posted by: Jr | Jan 16, 2021 7:36:37 AM

"It’s quite another to throw a racially charged fact pattern that isn’t necessary to the question itself to unsuspecting students."

The distinction between relevant to the question and non-relevant to the question can't be maintained. If professors can only include questions that *require* racially charged fact patterns then such questions don't test much at all since the students can infer that the correct issue must be one in which the racially charged fact pattern is relevant.

"To those who would rebut that we face such situations as lawyers: well, yes, but we generally have more time to process our reactions to those situations than a timed law exam allows."

My intuition would be that dealing with what you know to be a hypothetical safely (as much as can be) inside a school that works hard to fight racial bias rather than dealing with something that really happened and likely has a far worse fact pattern in a less protective environment would more than offset the supposed extra time to process.

Besides, you can't be sure you will always have time to process in a real case. You may not have that luxury during testimony or even going over the record with a senior partner. Like it or not if you have to take time to process after encountering racially charged evidence it probably won't help your career so you've got to balance the benefit to minorities and women from practicing with this kind of question with the harms.

"That sets up a whole new risk of discrimination, whereby students of color are more affected by the language of the question than white students are, and consequently, do worse."

Do you have any reason to believe the effect goes in this direction and not the reverse. It seems perfectly plausible that the experience of dealing with racism in their lives would make black students less distracted by the offensive epithets and thus better able to answer the question than their white counterparts.

If no evidence is actually required only a possibility than one could raise that objection about literally any question. Ask a hypothetical question about a shooting any maybe minority students react badly because they are more likely to have experienced that in real life. Ask a hypothetical question set in a tennis club or dealing with accusations in an office environment and it could favor white students who are more familiar with those environments.

I mean I fully agree that one should be concerned about potential unequal effects in asking questions but it can't suffice merely to be able to tell *some* story in which the question has an unequal effect since that's possible in virtually any question. At the very least the schools shouldn't be humiliatingly apologizing for the professor's insensitivity without some evidence that the effect really goes in the claimed direction.


But even suppose you are completely correct and there is some small bias introduced by such a question. Presumably this must be balanced against the interests in combating racism and sexism by producing lawyers who are more knowledgeable about the law in that area.

Posted by: TruePath | Jan 16, 2021 7:34:38 AM

Here I am getting neck-deep after resisting the urge to wade into these kinds of discussions for so long. Probably I’ll end up in Davy Jones’ Locker for my troubles.

I think Anon put it well. I’m not black, so I can’t experience firsthand what it’s like for someone who is to encounter that word on the street, let alone in the high-stakes high-stress context of a civ pro exam. But it’s not hard to believe that it must be incredibly upsetting and agonizing even in the former situation, to say nothing of the latter.

Why ATL seems to be going easier here is a question for them I guess, but there are some possible explanations I think. It’s pretty clear he wasn’t doing it for deliberate empty shock value like the smug edgelords (Volokh et al.). I’d say he was more of the clueless variety. And he did offer an apology of sorts. But, from the portions quoted by ATL, it came across more like a non-apology “I regret if anyone was offended” type deal. The rest of the excerpt just seemed to be him making excuses (he has to use it to illustrate employment discrimination), minimizing it (it wasn’t any worse than a mere pedestrian fender bender), justifying it (he’s actually helping fight discrimination by drawing attention to it), impugning the methods and motives of those who complained—and thereby sort of negating the initial halfhearted apology (BLSA didn’t react “the right way” [LOL!]), denying that he was even wrong anyway—so yet even more apology negating (the OAE rep said he was blameless), and finally engaging in some rhetorical excess (“a disservice to the role that law plays in our troubled society ...”).

So I get that he was clueless, but it’s not really an excuse. He should have just come clean and owned what he did more decisively. The thing about using the same exam question for a decade doesn’t help him either. It seems to me he just got lucky that nobody in past years had the same kind of reaction, or did, but didn’t feel courageous and/or empowered enough to speak up.

Finally, to the OP (and to the UIC prof, who surely has the same question on his mind), about “what are the rules, then?”—with respect—that feels like a bit of a dodge, or improper burden shifting. It’s asking the other side to do the legwork for you. We all know a big part of lawyering is exercising good judgment. That should hold especially true for a law prof. So I think someone ought to be able to avoid these issues without much or any hand-holding. After all, Anon is just some unidentified commenter (like yours truly!), but that person fully grasps the situation. I’m also aware of perfectly cromulent civ pro exams going back many years now that don’t have to resort to this language, or even the employment discrimination context, so clearly it can be done.

Posted by: hardreaders | Jan 16, 2021 3:55:12 AM

Context matters. It’s one thing to have an entire conversation about race and the law, where the topic is discussed with sensitivity and nuance, and students know what’s coming in advance. It’s quite another to throw a racially charged fact pattern that isn’t necessary to the question itself to unsuspecting students. That sets up a whole new risk of discrimination, whereby students of color are more affected by the language of the question than white students are, and consequently, do worse. To those who would rebut that we face such situations as lawyers: well, yes, but we generally have more time to process our reactions to those situations than a timed law exam allows.

Posted by: Anon | Jan 15, 2021 11:56:24 PM

Interesting. But in law, generally speaking, and particularly what concerns litigation, there is no marginal or irrelevant information. Every piece of information, may serve you down the road. You can't exclude nothing in advance, as totally irrelevant.

Why is this ? Simply because, preliminary and peripheral and procedural issues, may prevail a case simply.

For example, in such case as presented in the post:

One may conclude, from the nature of the nasty epithets, the mental state of the person speaking or expressing his ideas. Like:

Whether he talks genuinely, authentically, or he has certain back mind to manipulate things all around him. For example:

Was he trusting the audience ? (that they wouldn't leak nothing). Was he suspecting that he is secretly recorded ? Was the meeting as alleged, off the record, on the record etc....

One should not miss nothing. The slightest detail counts finally. May reverse the whole case.

Teaching law, and adhering to politically correct that is also good. Yet, an appropriate, decent disclaimer, before the problematic text, would suffice.


Posted by: El roam | Jan 15, 2021 7:10:26 PM

This "Today in Cancel Culture" post has a dramatically different feel than most of the rest of your "Today in Cancel Culture" posts. Is it just because UIC happens to be a public school? Would you be perfectly okay with this happening to a professor at a private law school?

Posted by: jph12 | Jan 15, 2021 6:22:03 PM

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