Jason J. Kilborn v. Michael Amiridis

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-3196
J ASON J. KILBORN,
Plaintiff-Appellant,
v.
MICHAEL AMIRIDIS , et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 22 C 475 — Sara L. Ellis, Judge.
____________________
A RGUED SEPTEMBER 19, 2024 — D ECIDED MARCH 12, 2025
____________________
Before R OVNER , HAMILTON, and K IRSCH , Circuit Judges.
KIRSCH, Circuit Judge. After Professor Jason Kilborn in-
cluded an expurgated racial slur in a law school exam ques-
tion, University of Illinois Chicago officials opened an inves-
tigation into allegations that he had created a racially hostile
environment for non-white students. The University found
that Kilborn had violated its nondiscrimination policy and
suspended him from teaching until he completed a diversity
training program. He was also denied a two percent raise.

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2 No. 23-3196
Kilborn sued several University officials, alleging that they
had violated his constitutional rights to free speech and due
process. Because a university professor’s academic speech re-
ceives qualified First Amendment protection under the Su-
preme Court’s decisions in Connick v. Myers, 461 U.S. 138
(1983), and Pickering v. Board of Education, 391 U.S. 563 (1968),
we reverse the dismissal of Kilborn’s retaliation claim. But we
affirm the dismissal of Kilborn’s remaining federal claims.
I
This appeal arises out of a motion to dismiss, so we accept
the well-pleaded facts in the complaint as true and draw all
reasonable inferences in the plaintiff’s favor. Cielak v. Nicolet
Union High Sch. Dist., 112 F.4th 472, 475 (7th Cir. 2024). But we
do not presume the truth of conclusory allegations. Id.
Jason Kilborn is a tenured professor at the University of
Illinois Chicago School of Law, where he regularly teaches a
course on civil procedure. For the past decade, he has in-
cluded the same question on the final exam. The question con-
cerns a fictional former employee who says she “quit her job
at Employer after she attended a meeting in which other man-
agers 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.” The exam question ap-
pears exactly like this, with the racial and gender slurs expur-
gated.
Unlike in prior years, students who took the exam in De-
cember 2020 were upset by Kilborn’s use of the expurgated
slurs and shared their displeasure with the law school dean.
In response, Kilborn reached out to students to discuss the
exam question. He sent a note of regret to his class for any

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No. 23-3196 3
distress caused by the expurgated references, exchanged
emails with a student about the incident, and participated in
a cordial, constructive, four-hour Zoom meeting with a mem-
ber of the Black Law Students Association (BLSA).
During the Zoom meeting, the BLSA member asked Kil-
born why the dean had not shown him a student petition crit-
icizing the exam question. Kilborn replied that perhaps the
dean had not shared the petition with him because she feared
he might “become homicidal” if he read it. Kilborn made the
comment in jest, and the conversation continued for another
three hours without any indication that the student felt threat-
ened or distressed by the statement. However, the student
later told the dean and other University administrators that
Kilborn had said that he “was feeling homicidal” or “would
become homicidal.” Asserting that they feared a possible
threat of imminent violence, University officials placed Kil-
born on indefinite administrative leave, cancelled his classes
for the term, and barred him from campus. Kilborn was ulti-
mately released to unrestricted duty a few days later, but only
after he submitted to drug testing and a medical examination.
His classes remained cancelled. Kilborn believes that the Uni-
versity officials’ concern about his homicidal jest simply pro-
vided a pretext to punish him for his exam question and to
mollify complaining students.
The University’s response to Kilborn’s controversial exam
question did not end there. It opened an investigation into al-
legations that Kilborn had created a racially hostile environ-
ment for non-white students. As part of the investigation, the
University reviewed comments Kilborn had made in a class
he taught two semesters earlier. There, Kilborn had discussed

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4 No. 23-3196
the relationship between frivolous litigation, plaintiff incen-
tives, and media coverage:
The fact that other plaintiffs see that one other
plaintiff lost isn’t a disincentive. If it were, friv-
olous litigation would have ended long ago, be-
cause lots of plaintiffs have been pushed to the
wall and lost. You don’t hear about those stories
in the media. You hear about idiot people win-
ning $1 million verdict against Subway for hav-
ing 11.5”-long sandwiches. That’s what makes
the press, right, that Subway lost. Not that they
win against this ridiculously frivolous case.
That wasn’t in the media, only in the legal me-
dia, maybe, if you were paying attention. 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?
In the same discussion, Kilborn also remarked: “I’m not sub-
jecting my corporate bottom line to that public lynching; I’m
sorry, that’s not the right word to use.” And in a discussion
on race-based police stops, Kilborn used an African American
Vernacular English (AAVE) accent while repeating the lyrics
of a Jay-Z song which describes the pretextual stop of a young
Black man (“You was doin’ 55 in a 54.”).
At the end of its investigation, the University concluded
that Kilborn had violated the harassment aspect of its nondis-
crimination policy. The University based its finding on Kil-
born’s use of the expurgated racial slur in the exam question,
his out-of-class conversations with students concerning the
exam question, his in-class remarks about “cockroaches” and

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No. 23-3196 5
“lynching,” and his use of an AAVE accent. Specifically, it
found that Kilborn’s out-of-class comments expressed insen-
sitivity and hostility toward students voicing concern and
that his in-class remarks were inappropriate and racially
charged. Kilborn believes these findings are unsupported by
the facts and that University officials only relied on them to
reach the predetermined conclusion that he should be pun-
ished.
Kilborn received two punishments for violating the Uni-
versity’s nondiscrimination policy. The University declared
him ineligible for an across-the-board two percent merit raise
and required him to participate in an eight week diversity
training program. The training program included course-
work, self-reflection papers, and meetings with a trainer who
would provide feedback regarding his engagement and com-
mitment to the goals of the program. Kilborn could not return
to the classroom until he satisfactorily completed the pro-
gram.
Kilborn has repeatedly asked University officials what he
should have done differently to avoid violating the nondis-
crimination policy, but he alleges they have never told him.
Although the policy does not include a definition for harass-
ment, University officials understand its scope to be broader
than applicable law. As a result, Kilborn fears the University
may enforce the policy against him again. To avoid further
consequences, Kilborn has refrained from teaching certain
pedagogically relevant cases in his class.
Kilborn sued several University officials responsible for
the actions taken against him. In his complaint, Kilborn raised
four federal claims under 42 U.S.C. § 1983 for violations of his
First, Fifth, and Fourteenth Amendment rights. He claimed

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6 No. 23-3196
that these officials: (1) retaliated against him for his constitu-
tionally protected speech; (2) compelled him to express com-
mitment to the goals of the diversity program; (3) did not af-
ford him adequate process before depriving him of constitu-
tionally protected property interests; and (4) construed the
University’s nondiscrimination policy in a way that fails to
provide fair notice of what conduct is proscribed. Kilborn also
raised several state law claims.
The University officials moved under Federal Rule of Civil
Procedure 12(b)(6) to dismiss the complaint for failure to state
a claim, which the district court granted as to the federal
claims. After dismissing the federal law claims with prejudice,
the district court declined to exercise supplemental jurisdic-
tion over the remaining state law claims and dismissed them
without prejudice. Kilborn timely appealed. For the reasons
given below, we reverse the dismissal of Kilborn’s First
Amendment retaliation claim and affirm the dismissal of his
remaining federal claims. Because Kilborn has a viable federal
claim, we vacate the dismissal of his state law claims for fur-
ther consideration by the district court.
II
We review de novo the district court’s dismissal of Kil-
born’s claims. Hagan v. Quinn, 867 F.3d 816, 820 (7th Cir.
2017). “For a complaint to survive a motion to dismiss, it must
allege enough facts to state a claim to relief that is plausible
on its face.” Cielak, 112 F.4th at 479 (quotation omitted). Simi-
larly, dismissal based on qualified immunity is appropriate
only if Kilborn’s “well-pleaded allegations, taken as true, do
not state a claim of violation of clearly established law.” Han-
son v. LeVan, 967 F.3d 584, 590 (7th Cir. 2020) (quotation omit-
ted).

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No. 23-3196 7
A
Kilborn first raises a First Amendment retaliation claim.
He alleges that the adverse actions taken against him were in
retaliation for his use of the expurgated racial slur and other
constitutionally protected speech. The district court found
that Kilborn’s speech was not constitutionally protected and
dismissed his claim. We conclude that Kilborn has plausibly
alleged that his speech is constitutionally protected and re-
verse the dismissal of his claim.
Public employees do not relinquish their First Amend-
ment rights as a condition of entering government service.
Pickering, 391 U.S. at 568. But the government’s interest in reg-
ulating speech is far greater when it is acting as an employer
than as a sovereign. See Waters v. Churchill, 511 U.S. 661, 671–
72 (1994). Like private employers, the government needs to
exercise control over its employees to provide public services
effectively. Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). And it
simply “could not function if every employment decision be-
came a constitutional matter.” Connick, 461 U.S. at 143.
To balance these competing interests, the Supreme Court
established a two part test in Connick and Pickering to deter-
mine whether a public employee’s speech is protected by the
First Amendment. First, we determine whether the employee
is speaking as a citizen on a matter of public concern. Connick,
461 U.S. at 147. If so, we balance the employee’s interests
against the government’s interests. Pickering, 391 U.S. at 568.
In Garcetti, the Supreme Court clarified that public employees
are not speaking as citizens when they make statements pur-
suant to their official duties. 547 U.S. at 421. We consider
whether the rule in Garcetti applies to Kilborn’s speech before

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8 No. 23-3196
applying the public concern analysis and balancing test laid
out in Connick and Pickering.
1
Kilborn’s exam question and in-class remarks fall within
his teaching responsibilities as a professor at the University.
If Garcetti applies, this speech would not receive any First
Amendment protection because Kilborn made it pursuant to
his official duties. Id. But Garcetti does not apply. The Supreme
Court made clear that its decision did not extend to cases “in-
volving speech related to scholarship or teaching.” Id. at 425.
Instead, it reserved the question in response to Justice Souter’s
concern that the decision would otherwise “imperil First
Amendment protection of academic freedom in public col-
leges and universities.” Id.; id. at 438 (Souter, J., dissenting).
As the Court itself recognized, “expression related to aca-
demic scholarship or classroom instruction implicates addi-
tional constitutional interests” that could have “important
ramifications for academic freedom.” Id. at 425 (majority
opinion).
In singling out the public university setting from an other-
wise generally applicable rule, the Court reaffirmed its long-
held view that “universities occupy a special niche in our con-
stitutional tradition.” Grutter v. Bollinger, 539 U.S. 306, 329
(2003). For example, in Keyishian v. Board of Regents, 385 U.S.
589 (1967), the Court recognized that academic freedom is “a
special concern of the First Amendment” and “is of transcend-
ent value to all of us and not merely to the teachers con-
cerned.” Id. at 603. To safeguard it, the First Amendment
“does not tolerate laws that cast a pall of orthodoxy over the
classroom.” Id. Similarly, in Sweezy v. New Hampshire, 354 U.S.
234 (1957), the Court recognized the “essentiality of freedom

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No. 23-3196 9
in the community of American universities” which plays a
“vital role” in our democracy. Id. at 250. “To impose any strait
jacket upon the intellectual leaders in our colleges and univer-
sities would imperil the future of our Nation.” Id.
We decline the University officials’ invitation to extend
Garcetti to speech involving university teaching and scholar-
ship when the Supreme Court was unwilling to do so. Nor are
we alone. Every other circuit to decide the issue has recog-
nized that Garcetti does not apply to university teaching or
scholarship. See Adams v. Trs. of the Univ. of N.C.-Wilmington,
640 F.3d 550 (4th Cir. 2011); Demers v. Austin, 746 F.3d 402 (9th
Cir. 2014); Meriwether v. Hartop, 992 F.3d 492 (6th Cir. 2021);
Heim v. Daniel, 81 F.4th 212 (2d Cir. 2023).
For similar reasons, the University officials are not entitled
to qualified immunity on this issue. Before Garcetti, it was
clearly established that the Connick-Pickering test offered qual-
ified protection to public employees, including professors at
public universities. E.g., Keen v. Penson, 970 F.2d 252, 257–58
(7th Cir. 1992); see also Omosegbon v. Wells, 335 F.3d 668, 676–
77 (7th Cir. 2003) (stating that academic freedom claims “are
subject to all the usual tests that apply to assertions of First
Amendment rights”). Garcetti did not purport to change the
law with respect to university teaching and scholarship. 547
U.S. at 425. And we have not suggested in any subsequent de-
cision that Garcetti would apply in this context—only in dif-
ferent contexts. See, e.g., Mayer v. Monroe Cnty. Cmty. Sch.
Corp., 474 F.3d 477, 479–80 (7th Cir. 2007) (addressing primary
and secondary school teaching); Renken v. Gregory, 541 F.3d
769, 774 (7th Cir. 2008) (addressing a university professor’s
speech that did not involve scholarship or teaching). In fact,
we have even recognized that a college or university

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10 No. 23-3196
“instructor’s freedom to express [his] views on [an] assigned
course is protected” even though classroom speech is also
“part of the instructor’s official duties.” Piggee v. Carl Sandburg
Coll., 464 F.3d 667, 671 (7th Cir. 2006). Because our pre-Garcetti
cases clearly establish a right to academic freedom in this con-
text, and neither Garcetti nor our more recent case law under-
mines that right, Garcetti does not supply a basis for granting
qualified immunity. Accord Adams, 640 F.3d at 565–66.
We do not suggest that reliance on Garcetti would never be
appropriate to support qualified immunity. In some cases,
there may be genuine uncertainty about whether the speech
at issue falls within Garcetti’s exception for university teach-
ing or scholarship. See, e.g., Demers, 746 F.3d at 406–10, 417
(granting qualified immunity where a university professor’s
speech involved sharing a two page pamphlet detailing his
plan to reorganize the school’s communications program).
But where, like here, a plaintiff’s speech falls comfortably
within the core of what constitutes university teaching and
scholarship, university officials cannot win on qualified im-
munity merely by proposing an extension to Garcetti that
courts have not yet recognized or rejected.
2
Next, we turn to the public concern analysis. Speech in-
volves a matter of public concern when it addresses subjects
of general interest that may be of value or concern to the
broader public. Lane v. Franks, 573 U.S. 228, 241 (2014). This
category of speech is not limited to “matters of transcendent
importance,” but also includes “matters in which the public
might be interested, as distinct from wholly personal griev-
ances.” Dishnow v. Sch. Dist. of Rib Lake, 77 F.3d 194, 197 (7th
Cir. 1996); see also Snyder v. Phelps, 562 U.S. 443, 454 (2011)

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No. 23-3196 11
(distinguishing between “broad issues of interest to society at
large” and “matters of purely private concern”) (quotation
omitted).
In determining whether a statement addresses a matter of
public concern, we consider the “content, form, and context”
of the speech. Connick, 461 U.S. at 147–48. Although content is
the most important factor, the Connick test “looks to the over-
all objective or point of the speech, as ascertained by all three
factors of content, form, and context.” Kristofek v. Village of Or-
land Hills, 712 F.3d 979, 985 (7th Cir. 2013). “[N]o factor is dis-
positive, and it is necessary to evaluate all the circumstances
of the speech, including what was said, where it was said, and
how it was said.” Snyder, 562 U.S. at 454.
Applying this standard, the district court held that none of
Kilborn’s speech addressed a matter of public concern. It
found that (1) the exam question could not contribute to
broader public discourse because only Kilborn would read
the students’ responses, (2) Kilborn’s out-of-class remarks
were directed at individual students and concerned only his
personal reaction to the controversy, and (3) Kilborn’s in-class
statements would not inform broader public debate on frivo-
lous litigation or pretextual police stops.
The district court erred in two important respects. First,
the district court did not give adequate weight to the aca-
demic context of Kilborn’s speech. In this setting, speech may
not inform broader public discourse because it is directed nar-
rowly at students or other scholars, but that does not detract
from its public importance. Assuring an “unfettered inter-
change of ideas” lies at the heart of the First Amendment.
Lane, 573 U.S. at 235–36 (quotation omitted). And the univer-
sity classroom is “peculiarly the marketplace of ideas.”

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12 No. 23-3196
Keyishian, 385 U.S. at 603 (quotation omitted). For this reason,
we have recognized that “the First Amendment protects the
right of faculty members to engage in academic debates, pur-
suits, and inquiries and to discuss ideas, narratives, concepts,
imagery, and opinions—scientific, political or aesthetic—with
an audience whom the speaker seeks to inform, edify, or en-
tertain.” Trejo v. Shoben, 319 F.3d 878, 884 (7th Cir. 2003)
(cleaned up); accord Heim, 81 F.4th at 228–29 (explaining how
“the special academic setting” guides its public concern anal-
ysis); Meriwether, 992 F.3d at 506–07 (stating that “what con-
stitutes a matter of public concern and what raises academic
freedom concerns is of essentially the same character”) (quo-
tation omitted).
Our case law reflects the public importance of academic
speech, even when it is narrowly directed toward students
and other scholars. For example, in Trejo we assumed that a
“spirited ‘academic and intellectual debate’” among profes-
sors and graduate students could be a matter of public con-
cern even if it took place over “late night drinks and a meal at
the hotel’s restaurant and bar.” 319 F.3d at 881, 885–86. And
in Pugel v. Board of Trustees, 378 F.3d 659 (7th Cir. 2004), we
recognized that a presentation on scientific research ad-
dressed a matter of public concern even though the audience
consisted of only a small group of scientists. Id. at 668; accord
Heim, 81 F.4th at 228–29 (rejecting the argument that academic
research was not a matter of public concern because it was in-
tended for consumption by a relatively narrow audience).
We do not mean to suggest that a university professor’s
speech addresses a matter of public concern whenever it is di-
rected toward students or other scholars. See, e.g., Wozniak v.
Adesida, 932 F.3d 1008, 1010 (7th Cir. 2019) (professor’s

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No. 23-3196 13
conversation with students on whether he would win a teach-
ing award was a wholly personal concern); Trejo, 319 F.3d at
886–87 (professor’s speech was designed to “solicit female
companionship,” not to “serve any truly pedagogical pur-
pose”). The content, form, and context of a university profes-
sor’s speech are all relevant in making this determination. See
Connick, 461 U.S. at 147–48. We are simply clarifying that aca-
demic speech can be a matter of public concern even if it does
not inform broader public discourse.
Kilborn’s exam question, out-of-class statements, and in-
class remarks are all academic speech that address matters of
public concern, notwithstanding the limited size of Kilborn’s
audience. The exam question was designed to give students
experience confronting a highly charged situation that they
may encounter in real-life practice and to be a continuation of
the learning that occurred in the classroom. The content, form,
and context of the exam question give no indication that it in-
volved a matter of private concern rather than serving
broader pedagogical purposes. Kilborn’s in-class statements
performed a similar function. They were designed to engage
students and stimulate in-class discussion on topics of signif-
icant interest to the broader community, including frivolous
litigation and pretextual police stops. Kilborn’s out-of-class
remarks also contributed to a public discussion, initiated by
members of the BLSA community, on the propriety of using
expurgated slurs in a law school exam. Although Kilborn’s re-
marks were made to individual students, even the University
recognized that they were directed at a broader group of peo-
ple.
Second, the district court’s analysis focused too narrowly
on particular words (and accents) Kilborn used rather than

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14 No. 23-3196
considering whether the “overall thrust and dominant
theme” of his speech “spoke to broader public issues.” Snyder,
562 U.S. at 454. The relevant question is not whether Kilborn’s
speech fell “short of refined social or political commentary,”
but whether the issues he was trying to highlight “are matters
of public import.” Id.; see also Rankin v. McPherson, 483 U.S.
378, 387 (1987) (explaining that the “inappropriate or contro-
versial character of a statement is irrelevant to the question
whether it deals with a matter of public concern”); Trejo, 319
F.3d at 885–86 (noting that whether speech is “too provoca-
tive, insensitive, and/or ‘politically incorrect’” is irrelevant).
To be sure, the focus of our analysis is on the particular con-
tent of Kilborn’s speech rather than its subject matter more
generally. Kubiak v. City of Chicago, 810 F.3d 476, 483 (7th Cir.
2016). But that is to determine whether the speech has a public
or private character, not whether the speech is valuable
enough to inform broader public discourse. Id.; see also
Snyder, 562 U.S. at 454.
The dominant theme of Kilborn’s in-class speech con-
cerned pretextual police stops and the relationship between
frivolous litigation, plaintiff incentives, and media coverage.
These are undeniably matters of public concern. Kilborn’s ref-
erences to cockroaches and lynching and his use of an AAVE
accent may have been insensitive, but they do not affect the
public character of his speech. Cf. Snyder, 562 U.S. at 454. Sim-
ilarly, Kilborn made his out-of-class statements in the context
of a public discussion that was occurring at the University.
Although he expressed his personal reaction to the contro-
versy with individual students, the overall thrust of his
speech addressed a matter of public concern: the propriety of
using expurgated slurs in exam questions. See id. The Univer-
sity even acknowledged that Kilborn’s remarks were directed

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No. 23-3196 15
at a broader community and not simply the individual stu-
dents he was communicating with.
The University may disagree with Kilborn’s pedagogical
approach or think his statements fall short of the refined com-
mentary it expects of its professors, but that is not something
we consider at this stage of the Connick-Pickering test. See id.
Instead, we consider the University’s interests at the balanc-
ing stage of the analysis, which we turn to next.
3
Although Kilborn’s speech receives some measure of pro-
tection under the First Amendment, it is not absolute. We
weigh Kilborn’s interest in expressing his speech against the
interests of the University. See Pickering, 391 U.S. at 568. A
public employer’s interest is generally limited to the efficient
and effective delivery of public services. See id. But in the ac-
ademic setting, a public university also possesses its own First
Amendment interests in academic freedom. See Keen, 970 F.2d
at 257 (noting that “the asserted academic freedom of a pro-
fessor can conflict with the academic freedom of the univer-
sity”); accord Heim, 81 F.4th at 230–33. For example, we have
recognized that a university’s “ability to set a curriculum is as
much an element of academic freedom as any scholar’s right
to express a point of view.” Webb v. Bd. of Trs. of Ball State
Univ., 167 F.3d 1146, 1149 (7th Cir. 1999); see also Heim, 81
F.4th at 231–33 (recognizing a university’s interest in hiring
professors with particular research interests).
The University officials do not suggest that the University
had its own competing academic freedom interests. Cf. id. at
230–33 (distinguishing between cases where university ad-
ministrators discipline college teachers for expressing

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16 No. 23-3196
controversial views and cases where there is a legitimate aca-
demic basis for the university’s actions). In fact, the University
noted that its findings did not hinge on whether there were
legitimate pedagogical reasons for Kilborn’s use of the expur-
gated racial slur. Instead, the University officials assert an in-
terest in maintaining a safe campus where students can learn
free of harassment.
To be sure, the University has a substantial interest in en-
suring its students can learn free of harassment. See Keen, 970
F.2d at 258 (recognizing a university’s interest under Pickering
in making sure its students are “not subject to demeaning, in-
sulting, and inappropriate comments”); Piggee, 464 F.3d at
673–74 (rejecting the argument that “colleges have no right to
prohibit speech that amounts to … harassment”). But here,
the parties dispute why Kilborn was punished. The Univer-
sity officials claim they disciplined Kilborn because his speech
was threatening and harassing to students. The University’s
investigation concluded that Kilborn’s out-of-class remarks
expressed insensitivity and hostility toward students voicing
concern and that his in-class comments were inappropriate
and racially charged. By contrast, Kilborn alleges that the in-
vestigation was not supported by the facts and that University
officials intentionally misconstrued his statements to provide
a pretext for punishing him for his controversial exam ques-
tion and to mollify complaining students.
That is not a dispute we can resolve this early in the litiga-
tion. At this stage, we accept the well-pleaded facts in the com-
plaint as true and draw reasonable inferences in Kilborn’s fa-
vor. Cielak, 112 F.4th at 475. And it is reasonable to infer from
the well-pleaded facts in Kilborn’s complaint that University
officials punished him for the controversial exam question

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No. 23-3196 17
and used the investigation to establish a pretext for their ac-
tions. See Waters, 511 U.S. at 677 (“It is necessary that the de-
cisionmaker reach its conclusion about what was said in good
faith, rather than as a pretext ….”). To take one example, the
University’s investigation substantiated an allegation that
Kilborn had referred to racial minorities as cockroaches and
found that the comment was racially charged. But a transcript
of the class recording, which is included in the complaint,
supports Kilborn’s allegation that his reference to cock-
roaches had nothing to do with race or racial minorities.
We conclude that this is not “one of those rare cases”
where we can engage in Pickering balancing “on the basis of
pleadings alone.” Craig v. Rich Twp. High Sch. Dist. 227, 736
F.3d 1110, 1121 (7th Cir. 2013) (cleaned up); see also Brown v.
City of Tulsa, 124 F.4th 1251, 1269 & n.7 (10th Cir. 2025) (col-
lecting cases that recognize Pickering balancing generally re-
quires a more fully developed factual record than is available
on a motion to dismiss). For the foregoing reasons, we reverse
the district court’s dismissal of Kilborn’s First Amendment re-
taliation claim.
B
Next, Kilborn raises a compelled speech claim. He argues
that he was forced to participate in an eight week diversity
course where he was compelled to express his commitment to
the goals of the program. Even if his factual allegations sup-
port such an inference, the University officials are entitled to
qualified immunity.
The First Amendment protects both the right to speak and
“the right to refrain from speaking.” Wooley v. Maynard, 430
U.S. 705, 714 (1977). When government officials compel

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18 No. 23-3196
individuals “to mouth support for views they find objection-
able,” they violate this “cardinal constitutional command.” Ja-
nus v. Am. Fed’n of State, Cnty. & Mun. Emps., Council 31, 585
U.S. 878, 892 (2018); see also W. Va. State Bd. of Educ. v. Barnette,
319 U.S. 624, 642 (1943) (government officials cannot force cit-
izens to endorse a particular belief nor “prescribe what shall
be orthodox in … matters of opinion”).
Similarly, public employees receive some measure of pro-
tection against compulsion by their employer to endorse mes-
sages they find objectionable. In Janus, the Supreme Court
held that government policies forcing employees to subsidize
the speech of public-sector unions are unconstitutional. 585
U.S. at 929–30. In reaching its decision, the Court also opined
on the appropriate standard to evaluate compelled speech
claims more broadly. It observed that “if the speech in ques-
tion is part of an employee’s official duties, the employer may
insist that the employee deliver any lawful message.” Id. at
908 (citing Garcetti, 547 U.S. at 421–22). If the compelled
speech is not part of the employee’s official duties, the Court
suggested (without deciding) that some form of heightened
scrutiny or modified Pickering analysis may apply. Id. at 895,
907–08.
Here, Kilborn asserts that he was compelled to express his
commitment to the goals of the diversity training program.
However, the factual allegations in his complaint only show
that he had to attend a course, write self-reflection papers, and
meet with a trainer who would provide feedback regarding
his engagement and commitment to the goals of the program.
Kilborn says the need for feedback raised the “obvious issue”
that he would not be allowed to teach if he did not adequately
express his commitment to the program. But Kilborn does not

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No. 23-3196 19
allege that his trainer compelled him to endorse any particu-
lar message (or that he, in fact, did so) as a condition of com-
pleting the course. Absent more specific allegations, it is ques-
tionable whether Kilborn has done enough to make out a
compelled speech claim.
But we do not need to decide the question. Even if it were
reasonable to infer that Kilborn was compelled to express
commitment to the goals of the diversity training program,
Kilborn still fails to state a claim because the University offi-
cials are entitled to qualified immunity. “Qualified immunity
attaches when an official’s conduct does not violate clearly es-
tablished statutory or constitutional rights of which a reason-
able person would have known.” Kisela v. Hughes, 584 U.S.
100, 104 (2018) (quotation omitted). And the Supreme Court
has repeatedly stressed that courts should not “define clearly
established law at a high level of generality.” Id. (quotation
omitted). Here, that means Kilborn had to show that existing
precedent clearly establishes Kilborn’s right as a public em-
ployee not to be compelled to speak. See Waters, 511 U.S. at
671–72 (recognizing that the government has “far broader
powers” to regulate speech when it is acting as an employer
than as a sovereign). He has not done so.
Instead, the cases Kilborn relies on involve the govern-
ment acting in its sovereign capacity, not as an employer. See
Wooley, 430 U.S. at 708; Barnette, 319 U.S. at 629; 303 Creative
LLC v. Elenis, 600 U.S. 570, 580–81 (2023); Hurley v. Irish-Am.
Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 571–73 (1995).
For example, Kilborn points to the Supreme Court’s decision
in Barnette. There, the Court held that a government policy re-
quiring students to salute the flag was unconstitutional. Bar-
nette, 319 U.S. at 642. But West Virginia was acting in its

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20 No. 23-3196
sovereign capacity in Barnette. Not only was the failure to sa-
lute the flag punishable by expulsion, but the expelled chil-
dren were also considered “unlawfully absent” and could be
“proceeded against as delinquent[s].” Id. at 629. And an ex-
pelled child’s parents could even be prosecuted and sen-
tenced to thirty days in jail. Id. That is a far cry from Kilborn’s
situation, where the failure to express his commitment to the
goals of the diversity training program only threatened his
ability to teach at the University. Cf. id. at 645 (Murphy, J.,
concurring) (noting that “not only is the privilege of public
education conditioned on compliance” but that “compliance
is compulsory and not optional”).
The Supreme Court’s decision in Janus provides some sup-
port for Kilborn’s position, but not enough to overcome qual-
ified immunity. Janus dealt with compelled subsidies of union
speech, not the compelled speech of public employees. 585
U.S. at 893–94. And while the Court opined on how it might
evaluate compelled speech claims, it expressly declined to
clarify which standard applies. See id. at 895, 907–08. As a re-
sult, several questions remain unresolved: Is it part of an em-
ployee’s official duties under Garcetti to express commitment
to the goals of a training program? See id. at 908. If not, what
level of judicial scrutiny applies? See id. at 895, 907–08 (sug-
gesting without deciding that heightened scrutiny or some
form of Pickering may apply). Does the level of scrutiny de-
pend on whether the compelled speech claim involves a
“blanket requirement” or a “single supervisory decision”?
See id. at 907 (quotation omitted).
Because existing precedent does not resolve these ques-
tions, the University officials could reasonably believe that re-
quiring an employee to express commitment to the goals of a

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No. 23-3196 21
training program germane to his position is constitutionally
permissible. We decline to resolve the questions left open after
Janus given the lack of briefing on the subject. It is enough to
decide that the University officials would be entitled to qual-
ified immunity even if Kilborn’s allegations of compelled
speech were plausible. See Pearson v. Callahan, 555 U.S. 223,
240–42 (2009). We affirm the district court’s dismissal of Kil-
born’s compelled speech claim.
C
Next, Kilborn raises a procedural due process challenge.
He argues that his suspension with pay and the University’s
refusal to grant him a raise are deprivations of property with-
out due process of law. Neither allegation states a plausible
claim for relief.
The Fourteenth Amendment prevents states from depriv-
ing a person of property without due process of law. Before
considering what process is due, we first determine whether
the plaintiff has been deprived of a protected property inter-
est. Luellen v. City of East Chicago, 350 F.3d 604, 613 (7th Cir.
2003). An interest is protected property under the Fourteenth
Amendment if “existing rules or understandings that stem
from an independent source such as state law” secure certain
benefits and “support claims of entitlement to those benefits.”
Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972).
In the employment context, a protected property interest
“can arise from a statute, regulation, municipal ordinance, or
an express or implied contract.” Covell v. Menkis, 595 F.3d 673,
675 (7th Cir. 2010). But it does not extend to “purely dignitary
or otherwise nonpecuniary dimensions of employment.”
Swick v. City of Chicago, 11 F.3d 85, 87 (7th Cir. 1993). Rather, a

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22 No. 23-3196
plaintiff “must show some economic loss” or “establish an
identifiable impact on his future income or economic bene-
fits.” Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 530
(7th Cir. 2000).
Kilborn first argues that his suspension with pay was a
“severe sanction” entitling him to due process protections.
But suspension with full pay is not a deprivation of a pro-
tected property interest. Townsend v. Vallas, 256 F.3d 661, 676
(7th Cir. 2001). Even if state law entitled him to a certain
amount of process for a severe sanction, “[p]rocedural inter-
ests under state law are not themselves property rights that
will be enforced in the name of the Constitution.” Swartz v.
Scruton, 964 F.2d 607, 610 (7th Cir. 1992). And Kilborn has not
suggested that his suspension impacted his future job oppor-
tunities or income, which could trigger due process protec-
tions. See Swick, 11 F.3d at 86–87; Bordelon, 233 F.3d at 530–31.
At most, he alleges that defamatory statements made by the
University—not its decision to suspend him—have tainted
his career prospects.
Kilborn also argues that his loss of a two percent, across-
the-board raise is a deprivation of property. But Kilborn
acknowledges that this was a merit raise and he does not sug-
gest he was entitled to it, contractually or otherwise. In fact,
he concedes that the University did not formally grant him
the raise before it was revoked. That is not a protected prop-
erty interest under our case law. See Swartz, 964 F.2d at 610;
see also Townsend, 256 F.3d at 676.
We affirm the district court’s dismissal of Kilborn’s proce-
dural due process claim.

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No. 23-3196 23
D
Finally, Kilborn seeks an injunction barring the University
from enforcing its nondiscrimination policy. He claims the
University officials’ interpretation of the policy is unconstitu-
tionally vague because it fails to give fair notice to employees
about what conduct the policy prohibits. Before addressing
the merits of his claim, we first consider whether Kilborn has
standing to bring it.
To establish Article III standing, Kilborn must show that
he has suffered an injury in fact, that the injury was caused by
the University officials’ conduct, and that a favorable decision
has some likelihood of remedying the injury. Speech First, Inc.
v. Killeen, 968 F.3d 628, 638 (7th Cir. 2020). The University of-
ficials argue that Kilborn has not suffered an injury in fact. But
an Article III injury exists where there is an objectively reason-
able chilling effect on the plaintiff’s speech and he self-censors
as a result. Id. Here, Kilborn alleges that University officials
have already enforced the nondiscrimination policy against
him, yet they refuse to explain what he should have done dif-
ferently, despite his repeated requests. To avoid violating the
policy again, he has refrained from using pedagogically rele-
vant cases in class because he fears they may be too racially
charged. That is enough to establish an injury in fact. Cf. Bell
v. Keating, 697 F.3d 445, 454–55 (7th Cir. 2012) (“[W]hen one
cannot know what triggers the ordinance such that it will be
enforced, he may fairly assume that it can and will always be
enforced and that total abstention from the protected activity
is necessary to avoid arrest and prosecution.”).
Turning to the merits, a statute is impermissibly vague if
it fails to provide fair notice of what conduct is proscribed or
if it encourages arbitrary and discriminatory enforcement.

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24 No. 23-3196
Hill v. Colorado, 530 U.S. 703, 732 (2000). But we are dealing
with a workplace policy, not a statute. And the government
enjoys greater latitude to craft reasonable workplace regula-
tions than it has when drafting the criminal code. Greer v.
Amesqua, 212 F.3d 358, 369 (7th Cir. 2000); see also Village of
Hoffman Estates v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 498
(1982) (“The degree of vagueness that the Constitution toler-
ates … depends in part on the nature of the enactment.”); Wa-
ters, 511 U.S. at 673. Therefore, we consider Kilborn’s claim
bearing in mind that the University’s nondiscrimination pol-
icy need not resemble a criminal statute. See Keen, 970 F.2d at
259.
Kilborn argues that the nondiscrimination policy is uncon-
stitutionally vague because the word “harassment” is not de-
fined by the policy and offers no guidance on what conduct it
purports to proscribe. But harassment on its own defines “a
range of inappropriate conduct” sufficient to satisfy due pro-
cess in the employment setting. Greer, 212 F.3d at 369. Kilborn
believes that the University’s policy is more concerning be-
cause the University understands it to be broader than appli-
cable law. However, the University clarified that “conduct
may violate the Policy even where the conduct does not rise
to the level of a violation of law” when it “unreasonably in-
terferes with a student’s participation in an academic pro-
gram.” Like Greer, we find that the policy adequately defines
a range of inappropriate conduct in accordance with due pro-
cess. If University officials try to stretch the meaning of har-
assment beyond what the word can reasonably bear, Kilborn
would have a viable claim for retaliation (as he may have
here).

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No. 23-3196 25
Finally, Kilborn argues that the First Amendment requires
public universities to have clearer workplace policies than
other public employers. But he provides little support for this
proposition. To the contrary, we have recognized that a “uni-
versity need not adopt a quasi-criminal code before it can dis-
cipline its professors.” Keen, 970 F.2d at 259; see also Piggee,
464 F.3d at 674 (concluding that it was “not unreasonable” for
a university to enforce its sexual harassment policy even
though the policy “may not have been a perfect fit for the be-
havior at issue”). And even if we were to require public uni-
versities to adopt a quasi-criminal code, the University’s use
of “harassment” would likely still satisfy due process. Several
circuits have held that use of the term “harass” in a criminal
statute is not unconstitutionally vague despite lacking a defi-
nition. United States v. Shrader, 675 F.3d 300, 310–11 (4th Cir.
2012); United States v. Conlan, 786 F.3d 380, 385–86 (5th Cir.
2015); United States v. Bowker, 372 F.3d 365, 380–83 (6th Cir.
2004); United States v. Osinger, 753 F.3d 939, 944–45 (9th Cir.
2014).
We affirm the district court’s dismissal of Kilborn’s vague-
ness claim.
III
The district court declined to exercise supplemental juris-
diction over Kilborn’s state law claims after it dismissed his
federal claims with prejudice. Because we reverse the dismis-
sal of Kilborn’s First Amendment retaliation claim, we also
vacate the district court’s dismissal of his state law claims for
further consideration.
AFFIRMED IN PART , R EVERSED IN PART , VACATED IN PART ,
AND R EMANDED

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