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.
____________________
On Petition for Rehearing and Rehearing En Banc
____________________
D ECIDED M AY 2, 2025
____________________
Before R OVNER , HAMILTON, and K IRSCH , Circuit Judges.
Appellees filed a petition for rehearing en banc. All mem-
bers of the panel have voted to deny the petition for rehearing,

-- 1 of 6 --

2 No. 23-3196
and none of the judges* in active service has called for a vote
on the petition for rehearing en banc, which is denied.
* Circuit Judge John Z. Lee did not participate in the consideration or
the decision of this matter.

-- 2 of 6 --

No. 23-3196 3
Statement of Circuit Judge EASTERBROOK concerning the pe-
tition for rehearing en banc. “It is the business of a university
to provide that atmosphere which is most conducive to spec-
ulation, experiment and creation. It is an atmosphere in which
there prevail the four essential freedoms of a university—to
determine for itself on academic grounds who may teach,
what may be taught, how it shall be taught, and who may be
admitted to study.” Sweezy v. New Hampshire, 354 U.S. 234, 263
(1957) (Frankfurter & Harlan, JJ., concurring) (quoting from
an academic report) (cleaned up). Sweezy introduced the idea
of academic freedom to the pages of the United States Re-
ports. Although a majority did not state clearly who possesses
that freedom, the views of Justices Frankfurter and Harlan
have persuaded many other federal judges that the university
itself is entitled to freedom from outside control, even if a fac-
ulty member seeks to enlist the aid of non-academic govern-
mental actors. See, e.g., Webb v. Ball State University, 167 F.3d
1146 (7th Cir. 1999); Wozniak v. Adesida, 932 F.3d 1008 (7th Cir.
2019); Urofsky v. Gilmore, 216 F.3d 401, 412–13 (4th Cir. 2000)
(en banc).
A university’s ability to evaluate and respond to faculty
members’ speech is essential to the educational enterprise.
Think of tenure: A university assesses a professor’s quality of
research and writing (and choice of subject matter) and nec-
essarily makes decisions based on the content and viewpoint
of speech. A chemist who writes excellent political commen-
tary but neglects scientific data and analysis can’t expect ten-
ure. A biologist who devotes his career to elaborating the
ideas of T.D. Lysenko can’t expect tenure. Think of teaching:
Every university assigns subjects (a professor of philology
can’t insist on teaching political theory) and approaches (a
professor of evolutionary biology who has experienced a

-- 3 of 6 --

4 No. 23-3196
religious conversion can’t denounce Darwin and embrace cre-
ationism). A university may demand that exams cover given
topics and be graded on a curve. Successful professors receive
raises and timeservers do not—though “success” depends on
speech that occurs in class and in scholarly journals. And so
on. Evaluation of every teacher’s speech is an essential part of
academic administration, and deans rather than jurors should
resolve disputes about these matters.
When a federal court announces that interests must be
“balanced” under the approach of Connick v. Myers, 461 U.S.
138 (1983), and Pickering v. Board of Education, 391 U.S. 563
(1968), it has stripped the university of its authority over the
curriculum and assigned it to a different institution. But if the
university holds the right of academic freedom, it can decide
for itself that Economics 101 should emphasize John Maynard
Keynes rather than Adam Smith, Milton Friedman, or Karl
Marx, no matter what the professor prefers. A required Great
Books course may feature Pride and Prejudice and Oblomov but
not Ulysses, and the university may sack someone who in-
stead teaches Dune and The Postman Always Rings Twice, with-
out asking a jury to decide which books would do students
the most good.
A university may require professors to avoid cuss words
and other derogatory language in class or on exams. But a uni-
versity could decide not to protect students, in or out of class,
from words and ideas that they might find offensive. See Uni-
versity of Chicago, Report of the Committee on Freedom of Ex-
pression (2015) (the “Chicago Principles”). The University of
Illinois Chicago evidently does not follow the Chicago Princi-
ples, and I do not think that a jury should be allowed to de-
termine (by “balancing interests”) that it must. Universities

-- 4 of 6 --

No. 23-3196 5
need to experiment and compete on this dimension, as on
many others, to find for themselves the best mix of policies—
and students must be allowed to choose the educational set-
ting that best matches their needs, something made impossi-
ble if the Constitution requires all educational institutions to
follow identical paths.
If a governmental body outside a university demands, say,
that a professor embrace or denounce diversity, equity, and
inclusion, the professor has a substantial claim against that
unit of government under the First Amendment. Likewise
when a scholar speaks outside of class: A professor of medi-
cine may proclaim on YouTube that vaccines cause autism.
But when a professor and a university are at loggerheads
about what constitutes effective teaching and scholarship, the
university has to win. Otherwise the Judicial Branch and the
populace at large (through juries) displace academic freedom.
Instead of invoking the First Amendment to protect him
or his university from meddling by actors outside the acad-
emy, Kilborn has asked such actors (in the persons of judges
and juries) to override a university’s judgment about how to
conduct classes and set examinations. This university may
have reacted unwisely to Kilborn‘s choice of language, and
the resulting student protests, but protecting a university’s
right to decide independently is the goal of academic free-
dom.
Oddly, however, the University of Illinois Chicago does
not advance an argument along these lines. The panel ob-
served (131 F.4th 550, 561): “The University officials do not
suggest that the University had its own competing academic
freedom interests.” Having litigated this case on the assump-
tion that Kilborn holds rights in speech vis-à-vis his employer,

-- 5 of 6 --

6 No. 23-3196
the University has been reduced to making arguments about
just which decisions do, or do not, “clearly establish” what I
take to be a nonexistent constitutional right of professors to
use offensive words in class or on exams even though the uni-
versity insists on bland language. These arguments do not jus-
tify a hearing en banc. Other arguments that the University
could have made are profoundly important, however, and
should be entertained when properly presented.

-- 6 of 6 --