Seventh Circuit Sides with Professor in Academic Freedom Case

Factual Background

On March 12, 2025, the Seventh Circuit Court of Appeals revived part of a lawsuit filed by a University of Illinois Chicago (UIC) School of Law professor against the institution. Professor Jason Kilborn (“Kilborn”) filed suit against UIC, claiming, among other things, that law school officials retaliated against him for engaging in constitutionally protected speech when they found that he had violated the law school’s nondiscrimination policy and required he complete certain remediation steps, including a diversity training, before he could return to teach full time.

Kilborn’s speech in question included the following:

• An exam question containing references to racial and gender slurs, for the purpose of providing a hypothetical employment discrimination case.
• An out-of-class comment to a student, in which Kilborn stated that the dean may not have shown him a student petition regarding the exam question for fear that Kilborn might “become homicidal.”
• A classroom discussion regarding frivolous litigation, in which Kilborn used the terms “cockroaches” and “public lynching.”
• A classroom discussion on race-based police stops, during which Kilborn used an African American Vernacular English (“AAVE”) accent while repeating the lyrics of a Jay-Z song that describes a pretextual stop.

The Court’s Analysis

The Supreme Court has established a two-part test to determine whether a public employee’s speech, such as that of a professor at a public higher education institution, is protected by the First Amendment of the U.S. Constitution:

1. Was the employee speaking as a private citizen on a matter of public concern?
2. If so, the employee’s interest in expressing his speech must be balanced against the educational institution’s interests.

Private Citizen

In this case, UIC Law School argued that the Seventh Circuit should apply the Supreme Court’s prior holding in Garcetti v. Ceballos, which held that public employees do not speak as private citizens and are therefore not entitled to First Amendment protection for their speech, when they make statements pursuant to their official duties. The Seventh Circuit rejected the law school’s argument. Consistent with other appellate courts across the country, the Seventh Circuit declined to extend Garcetti to higher education teaching. In other words, Kilborn may be considered a private citizen potentially eligible for First Amendment protection even when speaking pursuant to his official duties, such as in class.

Matter of Public Concern

The Seventh Circuit also found that academic speech can be a matter of public concern even if it is narrowly directed toward students and other scholars and does not inform broader public discourse. The Court held that Kilborn’s speech was related to a matter of public concern in that it was designed to engage students and stimulate discussion on topics of significant interest in the broader community and to give them experience confronting situations they may encounter in real-life practice of law. The Court also determined that the potentially insensitive use of terms like “cockroaches” and “lynching” and his use of an AAVE accent did not affect the analysis of whether his speech pertained to a matter of public concern.

Balancing Test

As to the second part of the Supreme Court’s test of whether a professor’s speech is protected by the First Amendment, the Court weighed Kilborn’s interest in expressing his speech against the interests of the law school, noting that a professor’s speech is not entitled to absolute protection against the First Amendment. The law school asserted its interest in ensuring its students can learn in a safe environment free of harassment, which the Court recognized as “substantial.” However, the Court determined that the balancing test required a more fully developed factual record than that which was established by the prior proceedings. Therefore, for these reasons, the Court reversed the district court’s dismissal of Kilborn’s First Amendment retaliation claim.

Additionally, the Court addressed a claim made by Kilborn that the institution’s requirement that he complete and express commitment to the goals of a diversity training program was impermissible because it compelled his speech in violation of the First Amendment. The Court questioned the merit of his claim, noting that he only alleged that he was required to attend a course, write self-reflection papers, and meet with a trainer regarding his engagement in the training. The Court noted that he didn’t allege that the trainer compelled him to endorse any particular message or that he did so as a condition of completing the course. Ultimately, the Court declined to rule on the merits of the claim and instead found that the institution, acting in its capacity as an employer, was entitled to qualified immunity and dismissed that claim.

Takeaways

This decision makes the Seventh Circuit the sixth circuit across the country to carve out an exception to the Supreme Court’s ruling in Garcetti for higher education professors, providing some clarity as to the boundaries of their First Amendment rights. The decision also underscores the courts’ longstanding view that colleges and universities are a unique setting in which academic freedom and the open exchange of ideas, including those of employees, warrants protection as appropriate.