Practitioners Share Insights on Representing Faculty in Academic Freedom Disputes

Attorneys who have represented faculty in academic freedom disputes shared insights from their experiences at a recent panel hosted by the Center for Academic Freedom and Free Speech (CAFFS). “Representing Faculty from Prelitigation Advocacy to Litigation” took place Nov. 11. 

Panelists Patrick Solon from the Chicago-based law firm Vitale, Vickrey, Niro, Solon & Gasey LLP and Justin Dillon from the Washington, D.C.-based Dillon PLLC joined CAFFS Faculty Director Keith Whittington. They gave perspective not only on the nature of many current faculty speech disputes on college campuses but also on the practicalities of advocacy within organizations and civil litigation.

Whittington observed that a wide variety threats to academic freedom and free speech have come from the government of late, but there have also been pressures on faculty and others from inside universities.

Dillon gave examples from times he advocated on behalf of faculty. The first was James Madison University psychology professor Gregg Henriques, who was cleared of wrongdoing after an anonymous student filed a Title IX complaint. The complaint alleged that comments Henriques made, spread among three courses over an 18-month period, created a discriminatory hostile environment. (The university later found the comments to be pedagogically relevant.)

Underscoring the due process problem posed by allegations covering offhand comments over such a long time span, Dillon asked audience members to consider how hard it would be to defend themselves if someone took offense to a comment they made as student in class two years ago.

“You might go, ‘Oh man, I’m really sorry, but I don’t remember that stray comment that I made,’” he said. “So I think that is kind of why the process can really be the punishment when you do that.”

Dillon’s second example involved a law professor at a public law school who was teaching a First Amendment course. In an optional essay prompt — one of several the students could choose to complete the assignment — students were asked to go to the website PornHub, watch any video, and analyze whether its contents would fall under the obscenity exception to the First Amendment. Dillon pointed out that there was, “no allegation that he had invited anybody out for drinks or gave him a martini.”

Before concluding his prepared remarks, Dillon offered the advice that lawyers should be willing to compromise, even when the facts and the First Amendment are on their client’s side, because litigation can be painful for clients.

“Really try to think ‘How can I help?’” Dillon said, adding “especially with professors who, unlike students, are going to be there at the end of the case, probably, if you did your job right.”

One of Solon’s key insights was that most of the academic freedom cases don’t stem from clashes between a professor and the dean of their department, but rather from clashes with administrative staff enforcing — or potentially over enforcing — anti-discrimination codes. 

To illustrate this point, Solon highlighted his recent victory in the Court of Appeals for the 7th Circuit in Kilborn v. Amiridis. Summarizing the case, Solon explained that in 2020, University of Illinois Chicago School of Law tenured law professor Jason Kilborn used a hypothetical on a civil procedure exam. The hypothetical, which he had been using for 10 years, contained redacted slurs and derogatory terms written as “n_____” and “b____.” When a student protested, the situation was handed over to the Office of Access Equity, an administrative body within the university. The office did a formal investigation and disciplined Kilborn. He was required to participate in a sensitivity training and was suspended from teaching.

“[S]o he wasn't allowed to teach, but he kept his pay and that's what led to his lawsuit,” Solon explained.

The U.S. District Court of the North District of Illinois had dismissed Kilborn’s federal claims, including his First Amendment claim, and declined to exercise supplemental jurisdiction of his state law claims. The court of appeals reinstated the Federal First Amendment claim, vacated the dismissal of the state law claims for further consideration by the trial court, but affirmed the dismissal of his other federal claims.

The court had dismissed the federal claims, pursuant to the Supreme Court’s decision in Garcetti v. Ceballos, which held that public employees do not have free speech rights when engaging in speech offered pursuant to their official duties. In that case, the majority noted that “[t]here is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence.” Still, the court declined to decide whether it would fashion a formal exception to the general rule to account for academic freedom at public institutions of higher education.

Solon and his colleagues’ victory in the Kilborn appeal established a critical academic freedom exception to the Garcetti general rule in the 7th Circuit. The Court of Appeals also held that the defendants were not entitled to qualified immunity and that the academic context of Kilborn’s speech made it clear he was speaking on a matter of public concern. Advocates for academic freedom say it is hard to underestimate how important it is for the advancement of academic freedom in states covered by the 7th Circuit.

Before closing his remarks, Solon shared that the University of Illinois Chicago School of Law had already spent four years and $1.6 million dollars fighting Kilborn’s lawsuit. According to Solon, to win academic freedom litigation, you must map out the path to victory and think about you get for your client if you win.

“The key is think about it early,” Solon said. “Early, early, early.”