Gerry Regep: Court's revival of UIC law professor's claim is good news for constitutional rights

Chicago Tribune

05-05-2025

A recent decision by the United States Court of Appeals for the 7th Circuit has important implications for academic freedom and free speech in college classrooms. At the heart of the case is Jason Kilborn, a tenured law school professor who has taught at University of Illinois Chicago School of Law for more than a decade.
Kilborn sued the school after UIC put him on administrative leave and conducted a full investigation into a question he posed to students on an exam.
On his final exams, Kilborn used to include a fictional case involving workplace discrimination. To reflect the real-world experiences that soon-to-be lawyers may encounter, his exam asked students to evaluate a fictional scenario in which an employee was called various slurs by her managers. The exam censored the full slurs, and Kilborn had used the same question for years. That is until 2020, when some students got upset at the question and reported him to the dean.
Despite his attempts to resolve the situation, a university investigation ensued. Kilborn was placed on administrative leave, drug-tested, barred from campus, denied a raise and required to complete an eight-week diversity training program before he was allowed to return to the classroom. In response, Kilborn filed state and federal claims against the university for violating his constitutionally protected academic speech.
University officials filed a motion to dismiss Kilborn's case, arguing he failed to state a claim for relief, and the district court agreed, dismissing the federal parts of the lawsuit. Once granted, the district court declined to exercise jurisdiction over Kilborn's remaining state law claims and dismissed them without prejudice. The district court held that Kilborn's speech was not constitutionally protected because it did not address a matter of public concern.
In March, in Kilborn v. Amiridis, the 7th Circuit reversed the lower court's decision with respect to Kilborn's First Amendment claim. It held that Kilborn had adequately stated a claim and sent the case back to the district court, signaling that public university professors have remedies for legal relief when their First Amendment rights are violated in the classroom setting.
The decision reaches far beyond one professor's law school exam. The question remains: Can a university truly be a marketplace of ideas if a professor risks being sanctioned for using hypothetical scenarios that reflect the messy, uncomfortable realities their students may face?
Notably, the U.S. Supreme Court in Garcetti v. Ceballos held that public employees have no First Amendment protection for speech made pursuant to their official duties — but it expressly declined to address whether that rule applies to a professor's academic scholarship or teaching. The 7th Circuit declined to apply Garcetti in this case because 'expression related to academic scholarship or classroom instruction implicates additional constitutional interests.' By issuing its decision, the 7th Circuit joins several other circuits in holding that Garcetti's rule does not extend to a professor's scholarship and teaching.
Although Kilborn's claim may still fail on the merits, this decision is a win for academic freedom and free speech supporters alike, and may have implications for other pending cases involving university faculty.
At a time when professors walk a tightrope between fostering robust debate and fostering inclusion in their classrooms, the Kilborn decision sends the message that professors should not have to choose between their careers and their constitutional rights.