The Jason Kilborn Case Perfectly Illustrates Why DEI Was a Bad Idea
Some reacted with horror at President Donald Trump’s executive orders that eliminate diversity, equity, and inclusion (DEI) programs and policies in the federal government, and encourage companies to drop their own DEI programs. Those concerned that this is a setback for fairness and inclusion have probably never been in DEI’s crosshairs. But law professor Jason Kilborn has been. After hearing his story, even those who previously believed in the merits of DEI programs might begin to re-think.
Kilborn’s case is striking because the accusations against him arose from his attempts to be inclusive. Kilborn knew early on that he wanted to be a teacher. He’d at first thought he would teach high school French and Russian but decided later that he wanted to become a lawyer. Combining his two passions, he chose to teach law.
After working a couple of years in a law firm to get experience as a practicing attorney, he got his first college teaching job. A few years later, Kilborn moved on to The John Marshall Law School of Chicago, Illinois. He liked that it was a small, non-traditional, free-standing school that allowed people who might not otherwise get to study law to do so.
“John Marshall Law School, what we used to be, was a very collegial place, because it was just us,” says Kilborn, “People supported each other because we're all in this together and you could see who was in it together with you.”
In 2019, the law school’s board of governors opted to become part of the University of Illinois at Chicago (UIC). Now, it was one of sixteen colleges at the massive university. And UIC, like virtually every large university, had a substantial bureaucracy devoted to DEI.
Diversity. Equity. Inclusion. Who wouldn’t support such concepts? The law school had always been, during Kilborn’s tenure, diverse and inclusive. And even if what DEI officials meant by “equity” was imprecise, the term seemed close enough to “equality” to sound beneficent.
At UIC, the DEI bureaucracy was known as the Office for Access and Equity (OAE). If Kilborn thought of the OAE at all, it wouldn’t have occurred to him that it had anything to do with him. He taught his classes with real-world diversity and inclusion in mind.
Fall semester 2020 ended as semesters always had, with final exams. Kilborn worked to make his courses relevant to the kinds of cases his students, once they became practicing attorneys, would encounter. There were about forty students in his Civil Procedure II class. Covid-19 had mostly forced classes online instead of in-person but in such a small class Kilborn knew all his students by name and was invested in their success.
“I discovered in my research that civil rights type cases, including particularly employment discrimination, are among the most common kinds of cases to find themselves in federal court,” says Kilborn. “And so I, from the very beginning, have pitched to the class in a way that heavily weights attention toward those kinds of cases.”
Because Kilborn’s students had been drilled in class on the kinds of issues that were likely to come up in employment discrimination cases, it made sense that they would expect to be tested on what they’d learned. “The worst thing that a professor can do is have the exam be totally different from the class,” says Kilborn.
One test question that regularly appeared in his Civil Procedure II final exam involved a woman who’d been fired, and who later sued her ex-employer because she believed her dismissal was due to race and sex discrimination. In Kilborn’s hypothetical test question scenario, both the plaintiff (the woman who was suing) and the defendant (the employer who’d fired her) had trouble locating a potential witness. This witness, a former manager, had quit suddenly and then disappeared. The following is a verbatim section copied and pasted just as it was written from the test question that law students in Jason Kilborn’s class were presented with about this fictional discrimination case:
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.
Most people reading the above would think to themselves, aha! so there was discrimination, and sympathize with the plaintiff. Some might even wonder whether the professor was doing a bit of virtue-signaling himself, by highlighting racial and gender discrimination in an exam question. For his students, what mattered was the bottom-line question: was the employer obligated to share the location of the witness with the plaintiff (the woman who was suing)? If students had been paying attention in class, on December 2, as they took their exam, they’d be able to weigh the legal issues involved, choose the correct answer from the multiple choice list, and move on to the next test question.
But in the age of DEI, almost anything can be twisted into support for a grievance.
On December 21, Kilborn got a message from the law school dean a little after six o’clock in the morning, telling him that she needed to meet with him to discuss some “incidents” that had arisen in his class that semester. Kilborn wondered what in the world she could be referring to. His students were great. Despite Covid, they’d had a good combination of in-person and online classes.
The meeting with the dean was by video conference, with the dean and one other person. The first thing she told him was that someone complained that he had given participation points for attending live classes instead of online. Whoever made the complaint claimed the extra points affected black students more than white students and were discriminatory. Kilborn found that odd, since only four or five people got the extra point, and one was a black woman, but he said, fine. Let’s support them. Give everyone the extra point. He didn’t want anyone to feel they were being undermined.
The next issue she raised was more troubling. We heard you used the “N” word on your exam.
“I was like, no, that's not in fact what happened,” says Kilborn. “And I told her that I've actually used that same exact exam question verbatim on multiple choice format, because I don't want to rewrite the thing every single semester, twelve times. And nobody has said boo the entire time. In fact, some people have said it made them feel like it was real.”
He was flabbergasted that someone would find the question offensive. He’d meant it to be precisely the opposite. It didn’t make sense to apologize, because he’d done nothing wrong. How about, he suggested, he write a letter of regret, in case the test question caused anyone distress? And he’d make himself available to talk to anyone who felt upset.
The dean agreed that that was a good solution. So that’s what he did. When no student took him up on his offer to discuss their reactions, he took that to mean that no one had really had a problem with the exam question and that that would be the end of it.
He couldn’t know that a campus cause célèbre was taking shape behind the scenes—with him at its center.
The school’s Black Law Students Association (BLSA) had begun circulating a letter condemning the test question. It claimed the “visual” of the N-word on Professor Kilborn’s exam was “mental terrorism.” It also claimed that the presence of that single letter of the alphabet shined “a bright light on the hidden biases and cultural insensitivities that permeate into the walls of UIC John Marshall Law School.”
Those were the tame sections. The authors were flexing their rhetorical muscles before getting to the good stuff. Under the subhead “Psychological Impact and Mental Trauma to Students,” the letter claimed that multiple students had suffered extreme psychological distress from simply reading the question.
“[O]ne student stated, ‘I was completely flustered by the question and had to take several moments to gather myself prior to proceeding with the exam.’ The student added, ‘I had to seek counsel immediately after the exam to calm myself from what I had just experienced.’”
Stop for a moment and re-read the sentence that allegedly caused this extreme reaction:
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.
Do you feel you have to seek counsel to calm yourself after reading it?
Would any reasonable person react this way?
The performatively aggrieved, of course, weren’t attempting to be reasonable. Standard practice when enforcing DEI initiatives can often involve super-sizing claims of emotional distress. What most would see as a teensy annoyance so fleeting it would typically go unnoticed becomes a “microaggression.” If the annoyance is more than fleeting, it is characterized as “harm,” even if it harms no one. The hyperbolic language escalates from there.
In this instance, the BLSA insisted that words in an exam—not even words, but lowercase letters that referred to words—caused “trauma” so profound, that mere brief exposure forced an adult student into counseling immediately after.
Just in case anyone doubted this adult student’s account of a near-swoon, the BLSA missive was ready with additional accounts of purported dramatic reactions:
Another student stated that upon reading “n_____” “b_____” on the exam she became “incredibly upset” and immediately began experiencing “heart palpitations.”
The BLSA letter next claimed that a third student “was left in a hopeless mental state after learning about the words on the exam.” This third student experienced his “hopeless mental state” after merely hearing about these lowercase letters; he had not been in the class, nor had he taken the exam.
BLSA laid out its demands, which included mandatory “anti-racist” training for all professors and Professor Jason Kilborn’s resignation as chair of the academic affairs committee and all other committee appointments he held, along with various other humiliations. It referred to previous letters it had written about the school’s hostile educational environment (given the Kilborn test question, that “hostile environment” was also, presumably, a figment of overheated imaginations). So as to be sure their message was clear, the BLSA described the exam question and its effects as a “slur,” “oppressive and unconscionable,” “racist,” “inexcusable,” “poisonous,” “gut-wrenching,” “vile,” “repugnant,” “offensive,” “vulgar,” “derogatory,” “appalling,” “pernicious,” and “traumatizing.”
This orgy of denunciation ended by suggesting this was a “foundation shaking incident” and warned that action was essential before another such incident were allowed to occur.
Given the length of the BLSA’s communique, and how much grievance was shoveled into it, there was one surprising omission: it didn’t quote the full sentence in which the offending lowercase letters appeared. Why not provide readers with the context?
It’s possible that the authors didn’t know. It’s also possible that no one signing the BLSA letter actually knew what the exam question was about.
That’s because none of the signers had taken Jason Kilborn’s Civil Procedure II class that semester. None was in any of his other classes. As Kilborn learned from his wife, one of his former students, a young woman he had mentored and written recommendations letters for, had added her signature. When he learned she had, he emailed and pointed out that this was the exact question that was on the exam she took the year previous. She’d never suggested there was a problem with it then, nor had anyone else. He also told her his heart was “absolutely broken by all this.”
The student he contacted was neither a member of the Black Law Students Association nor black. So I wondered, after speaking to Kilborn, how many of the signers actually were.
Checking LinkedIn for the letter signers’ bios and headshots, as far as I could tell, only six of the twenty-four students who signed were black, and of those, only five were members of the BLSA. There was an Asian or two. Several others were Hispanic people of color. One appeared to be Middle Eastern. The rest—making up the largest bloc—were white.
Maybe that’s to be expected. The Black Lives Matters protests that too often devolved into riots in cities across the country after George Floyd’s killing by Minneapolis Police were, in many areas, majority white events.
Portland, Oregon, therapist Stephanie Winn calls such third-party amplifiers of others’ grievance messages “flying monkeys” after the winged primates who did the wicked witch’s bidding in The Wizard of Oz. A cadre of flying monkeys supporting a relatively small number of the presumptively aggrieved can make the complaining group appear much larger—and make its claims and demands more difficult to ignore—even if the actual complaints are nonsensical.
Winn points out that flying monkeys might be showing “narcissistic compassion,” which they reflexively offer without necessarily understanding what they’re supporting. “It's just this sense that ‘Well, of course I’m one of the good people and this is what the good people do.’ There's a carelessness because they don't realize the consequences of the possibility that they could be getting it wrong.”
If the BLSA’s flying monkeys meant to signal that they weren’t really oppressor identities, they didn’t fully understand the ideology driving the situation. Kilborn, too, had thought he was “one of the good people.” But actions are fleeting.
Identities are permanent and inescapable. That’s the whole premise of DEI.
Although Kilborn knew the BLSA letter was creating the psychic equivalent of an earthquake at the law school, all he’d seen of it, up to that point, was his former student’s signature when his wife showed it to him. He couldn’t bring himself to read the rest of the thing. Everyone else at the law school had, or so it seemed, and they were talking about it. A friend and fellow law professor who’s black approached him to ask what had happened and why he’d used the “N-word” on an exam. When Kilborn explained that he had merely referred to it on a test question, his colleague replied that the situation was getting out of control and, Maybe it would be useful if you were to talk to one of the leaders of this movement and try to assuage his concerns as you have just done for me.
His colleague arranged an introduction. Kilborn signed into a Zoom call with the BLSA leader at five o’clock on the evening of Thursday, January 7, 2021.
“I genuinely wanted to help this person to get over whatever problem he and his group were having,” says Kilborn.
For four hours, they spoke about whatever the BLSA student wanted to discuss. About an hour into their conversation, the student asked Kilborn if he was aware of the complaints made about him and Kilborn replied that none had been made.
The student referred to the BLSA letter and asked if Kilborn had seen it. Kilborn said he hadn’t.
Well, why do you think the dean hasn't shown it to you? The student asked. And Kilborn repeated a joking reply he’d given to his dean two days earlier: I suspect she's afraid if I saw the terrible things said about me in that letter, I would become homicidal.
The dean had taken the comment as the jest it was, and Kilborn assumed the student did, too, because they kept talking for three hours after that.
“It was just this free-floating conversation about the idea of how one gets past situations like this and what this Black Law Students Association group of his would expect or would accept in terms of whatever resolution of the situation,” says Kilborn.
The student kept insisting that the BLSA would accept nothing less than Kilborn’s termination. “I'm like, my termination is not on the table,” Kilborn recalls saying. “I'm a tenured full professor of law and I've done absolutely nothing wrong.” But he offered to talk to anyone else who might still have concerns so they could reach an understanding.
They ended the marathon Zoom meeting amicably. To the extent that the brouhaha could be put to rest, Kilborn believed it had been.
Tuesday, January 12, 2021, was to be the first day of Kilborn’s classes for the spring semester. At a little after six-thirty in the morning, the law school dean emailed him that he needed to join her for an early morning electronic meeting, about ninety minutes hence.
When he signed in for the videoconference, the dean told him he was being placed on indefinite leave.
All his classes were canceled, effective immediately. Kilborn was prohibited from coming on campus. Prohibited from engaging in any university activity. Prohibited from performing any duties related to the committees he was on. Prohibited, in fact, from having any meetings of any kind, formal or informal, with colleagues, staff, students, or alumni.
He was told he’d have to get prior approval to speak at any external conferences. Lastly, the dean asked him not to discuss any of this with anyone associated with the university.
When the stunned professor asked what was going on, the dean said that students had made additional complaints about him regarding possible violations of university policies. Beyond that, she could say no more, but he would learn the details from the Office for Access and Equity in a few days.
The meeting had lasted little more than a minute.
Several days later, Kilborn met with Caryn Bills, the UIC Associate Chancellor, and head of the Office for Access and Equity. She asked him if he’d had a conversation with the BLSA leader and he said, yes. Then she asked, Do you remember when he asked why the dean hadn’t shown you the BLSA letter? He replied that he did, and repeated his joke about becoming homicidal.
“She’s like, ‘Well, you know, that’s why we convened the threat assessment team,’” recalls Kilborn. “I was like, what kind of nonsense is this? I was obviously joking. He talked to me for the next three hours. We were having a conversation without a hitch. There’s no conceivable way that this person could possibly have perceived that that was a threat.”
The Office for Access and Equity official was unmoved. She told him that the student he’d had his four-hour videoconference with, along with several others, had met via video conference with the law school dean and others the day before. The student claimed that Kilborn had told him he was “feeling homicidal” or “would become homicidal.”
Bills told him that the only way for Kilborn to be cleared from his indefinite administrative leave and be permitted to return to work was to report for a mental examination, undergo a drug test, and submit to other threat assessment and health testing.
“I had no lawyer,” says Kilborn. “I wasn't prepared. So I'm like, okay, well, I'll do what you tell me to do.”
Meanwhile, he reported what had happened on a listserv for Civil Procedure professors, and one suggested he contact the Foundation for Individual Rights in Education (FIRE), which has since changed its name to the Foundation for Individual Rights and Expression, keeping the same acronym. FIRE’s team of lawyers volunteer their services, primarily to defend the free speech rights of teachers and students, but consistent with its name change, the organization has been taking cases important to freedom of speech and the first amendment beyond the campus.
FIRE immediately offered Kilborn support. The organization sent UIC a letter pointing out that Kilborn had a first amendment right to teach as he saw fit. Instead of backing down, the university’s Office for Access and Equity officials reported that new complaints had come in that involved allegations of race-based discrimination and harassment and claimed Kilborn had “created a racially hostile environment.”
Kilborn knew he’d never done anything of the kind. But without further information about the allegations, he couldn’t launch much of a defense, either.
He spent the rest of the semester under that cloud of suspicion until May 28, 2021, when the school’s Office for Access and Equity department delivered what it called its investigative findings.
In a telling hand-out written by critical race theorist and DEI trainer Robin DiAngelo, she writes this about any interaction between a person of color and a white person:
The question is not “did racism take place”? but rather ”how did racism manifest in that situation?”
If you’ve internalized the belief that every time a white person and a person of color connect on any level, the white person must be doing something either overtly or covertly racist, you will go looking for that racism. And if it isn’t there? You’ll find it anyway.
The Office for Access and Equity agreed that he had “engaged in race-based harassment.” The evidence: the exam question, his email to a white student telling her he was heartbroken that she’d signed the BLSA letter, and his “homicidal” jest. The OAE also decided that a couple of unrelated lessons he’d taught were racially tinged.
Here’s what they claimed as evidence.
In one instance, about a year earlier, he’d been giving a lecture about frivolous lawsuits. In the lecture, he explained that no one hears about the frivolous lawsuits that companies win. Only the ones they lose make the news. For example, he pointed to the class action lawsuit against Subway, which cost the company about half a million dollars in compensation, over a claim that its foot-long sandwich was actually a quarter-inch shorter. He noted that when a business wins a frivolous lawsuit, it doesn’t make the news. But when they lose, it’s all over the headlines.
Here is the supposedly offending portion of the lecture, which comes directly from the transcript of the class audio-recording:
And that’s the problem. If they win, no one hears about this. They only hear about it if they lose and God forbid that—then all the cockroaches come out of the walls, they’re thinking, right?
Somehow, the OAE found that the “cockroaches” comment was “racially charged,” even though the figure of speech had nothing to do with race; it was entirely about what businesses worry could happen after they lose headline-making cases. And the fact that the Office for Access and Equity brought it up at all means that their investigator had to have reviewed the audio-recording or its transcript, and would have discovered that the comment didn’t relate to race.
“This is just such obvious preposterous nonsense,” says Kilborn. “If anybody in that room, anybody, had thought for a second that I had even vaguely and indirectly referred to black people as cockroaches, their heads would have exploded and they would have run immediately to OAE. It didn't happen.”
In another instance, Kilborn used a Jay-Z lyric to illustrate a point about racial discrimination in law enforcement.
“There was this famous case where this poor guy is, you know, accused of being an Islamic terrorist and right after 9/11, they put him in these horrific confinement conditions and he sues, claiming that he had been subjected to this treatment solely on the basis of his religion and national origin,” recalls Kilborn. To illustrate the racial profiling involved, Kilborn suggested to his students that it would be similar to what happens to poor young black men on the south side of Chicago every day. “Isn’t this just like, you know, as Jay-Z says, ‘You was doing 55 in a 54?’”
Kilborn says that he had been keen to use the lyric because he wanted his students to know that he empathized with minorities who faced injustice. “I had just heard this very song on my run mix that very morning. I’m like, what a brilliant example. It’ll get the students’ attention. It’ll connect me to them in a way that they’re like, ‘oh, that old white bald guy knows our music.’ I'm like, this is going to be awesome.”
And it was awesome, as he recalls. “Everyone laughed,” he says. “It was perfect. It brought us all together.”
But the OAE found that, like the cockroaches example, this was another instance of “inappropriate racially charged comments.”
Remember, all of Kilborn’s classes were recorded. The audio recordings, which were reviewed by an OAE investigator, clearly showed the context in which each comment was made. The context related to the teaching of law. Nothing else.
Verbatim recorded evidence proved he was innocent of the allegations. Yet, the Office of Equity and Access wouldn’t let it go.
“They were just, again, genuflecting to this torch-wielding mob that was demanding my head,” says Kilborn.
They couldn’t boot a tenured professor without good cause. But perhaps the administration believed that, to appease the mob, they had to give them something. Baseless findings that could wreck Kilborn’s chances for ever getting a teaching job elsewhere comprised the “something” they provided instead.
Kilborn, through his FIRE attorneys, was ready to file a lawsuit. But then, in July 2021, the interim law school dean came up with a plan that Kilborn felt he could live with. For the next four semesters: he’d immediately report any allegations by a student against him regarding racial or ethnic harassment to the dean before responding to the student; his audio-recorded classes would be reviewed by one or more faculty members; if after two semesters, the audio-recordings showed that he had not “effectively maintained a non-discriminatory, non-harassing classroom environment,” he would be required to complete a DEI training program.
He wrote an email to his lawyer and the friends who’d been supporting him through this ordeal, saying that he was ready to let it go and move on. “I sort of breathed a huge sigh of relief and thought, okay, we’re done.”
And that would have been the end of it. But for reasons that aren’t exactly clear, school officials decided they weren’t done punishing him. On September 6, 2021, the interim dean informed Kilborn that he wouldn’t be getting a 2 percent raise in salary due to the Office for Access and Equity’s baseless findings.
“If they had just left well enough alone in July 2021 and just gone with my dean’s agreement with me, everything would have been fine,” says Kilborn. But when they announced his ineligibility for a tiny raise that virtually everyone else was getting, he decided to fight. It wasn’t the money, which was negligible. It was the realization that he had no choice but to stand up for principle. It wasn’t going to end any other way.
His lawyers with FIRE sent UIC officials a demand letter: rescind and remove all documents from Kilborn’s file related to the allegations and OAE’s findings; remove any references to purported policy violations; grant him the 2 percent raise he was denied because of those actions. Otherwise, they would take legal action against the school administrators involved in violating Kilborn’s constitutional rights.
The Office of Access and Equity didn’t back down. Kilborn sued. They imposed yet another punishment on him (which they insisted wasn’t really a punishment, though there’s no other reasonable way to view it). They decided that he would have to take the DEI training that in his previous agreement with the dean would only have been required if after two semesters he had not “effectively maintained a non-discriminatory, non-harassing classroom environment.” The OAE officials did not suggest that there were new allegations of any kind against him. They simply changed the rules.
They also canceled all his classes until he completed his DEI re-education.
Several legal scholars have weighed in on Kilborn’s case and have opined that the actions of the officials charged with enforcing DEI were outrageous, unconstitutional, and just plain embarrassing to an institution that claims to support academic freedom and free expression. But none of that daunted the UIC’s administrators who plodded on with their efforts to wear him down.
“I don't think that there’s a way to rationalize this,” Kilborn says. “I'm in this for the principle of the thing, and for the fact that there’s going to be no other opportunity where somebody who knows what they’re doing, and has a complete command of the situation and the law behind it, to step up for free with pro bono lawyers and take this forward.”
And that’s important because, as he says, his situation is far from an isolated incident. For every potentially career-ending false DEI allegation that makes the news, probably a hundred or more, equally outrageous, don’t. “The overwhelming majority of people like me who are under attack can’t fight or won’t fight because it’s expensive, it’s painful, it’s emotionally traumatic. And so they just are quiet. And a hundred other people are quiet around them because they don’t want to get in trouble to begin with.”
Kilborn acquiesced in completing the mandated DEI training, because he was eager to get back to teaching. But, he says, he’s more guarded in his interactions with students and less likely to stick his neck out on a student’s behalf. “It's just the absolute opposite of what this entire movement should be intent on achieving,” he says. “I was one of their strongest proponents before.”
The mandated DEI training itself best exemplifies the absurdity of the allegations against him. First, recall that the campaign against Kilborn began after he used “n_____” to refer to a slur in a racial discrimination case on his Civil Procedure II final exam.
With your memory refreshed, see below for a passage that appeared in the Office of Equity and Access’s “anti-racist” DEI materials, given to Kilborn to re-educate him. (As someone once said, you can’t make this shit up):
If members of agent groups break the rules, they too are punished. White people who support their colleagues of color may be called “n_____ lover.”
In December 2023, a judge dismissed Kilborn’s lawsuit, despite what appeared to be clear violations of his First Amendment and other rights. His lawyers appealed in circuit court, and a decision on that appeal is expected imminently. (UPDATE: He won his appeal on March 12, 2025, and thus his lawsuit has been revived.) Meanwhile, Kilborn discovered that “UIC has wasted more than $1.25 million defending against this case that should have been settled quietly and cost-free three years ago.”
That’s an insane amount to spend persecuting a professor who was a supporter of diversity and inclusion. Kilborn found out the hard way that DEI tends to engender manufactured grievance and the very sort of racial animosity that it was supposed to address.
Antia Bartholomew is a former longtime contributing editor and contributor to Reader’s Digest and the author of Siege: An American Tragedy, a detailed account of the storming of the U.S. Capitol on January 6, 2021, that has been hailed by Midwest Book Review as “essential reading for future generations.” Her current book project, tentatively titled Sacrificial Lambs, will be published by Pitchstone in 2025.