Crue, Cydney A. v. Aiken, Michael

In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 02-3627, 03-2281 & 03-2951

CYDNEY A. CRUE, JOHN M. MCKINN,

DEBBIE A. REESE, BRENDA M. FARNELL,

FREDERICK E. HOXIE, STEPHEN KAUFMAN,

and PHILIP W. PHILLIPS,

Plaintiffs-Appellees,

v.

MICHAEL AIKEN,

Defendant-Appellant.

____________

Appeals from the United States District Court

for the Central District of Illinois.

No. 01 C 1144—Michael M. Mihm, Judge.

____________

ARGUED FEBRUARY 9, 2004—DECIDED JUNE 1, 2004

____________

Before BAUER, MANION, and EVANS, Circuit Judges.

EVANS, Circuit Judge. This case, raising First

Amendment issues involving the University of Illinois,

concerns “Chief Illiniwek,” who, depending on one’s point of

view, is either a mascot or a symbol of the university. More

on this distinction later but first, before getting to the issue

at hand, we detour for a brief look at college nicknames and

their embodiment as mascots.

2 Nos. 02-3627, 03-2281 & 03-2951

In the Seventh Circuit, some large schools—Wisconsin

(Badgers), Purdue (Boilermakers), Indiana (Hoosiers),

Notre Dame (The Fighting Irish), DePaul (the Blue De-

mons), the University of Evansville (Purple Aces), and

Southern Illinois (Salukis)—have nicknames that would

make any list of ones that are pretty cool. And small schools

in this circuit are no slouches in the cool nickname depart-

ment. One would have a hard time beating the Hustlin’

Quakers of Earlham College (Richmond, Indiana), the Little

Giants of Wabash College (Crawfordsville, Indiana), the

Mastodons of Indiana University-Purdue University-Fort

Wayne (Fort Wayne, Indiana), and the Scarlet Hawks of the

Illinois Institute of Technology.

But most schools have mundane nicknames. How can one

feel unique when your school’s nickname is Tigers (43

different colleges or universities),1 Bulldogs (40 schools),

Wildcats (33), Lions (32), Pioneers (31), Panthers or Cou-

gars (30 each), Crusaders (28), or Knights (25)? Or how

about Eagles (56 schools)? The mascots for these schools,

who we assume do their best to fire up the home crowd, are

pretty generic—and pretty boring.

Some schools adorn their nicknames with adjectives—

like “Golden,” for instance. Thus, we see Golden Bears,

Golden Bobcats, Golden Buffaloes, Golden Bulls, Golden

Eagles (15 of them alone!), Golden Flashes, Golden Flyers,

Golden Gophers, Golden Griffins, Golden Grizzlies, Golden

Gusties, Golden Hurricanes, Golden Knights, Golden Lions,

Golden Panthers, Golden Rams, Golden Seals, Golden Suns,

Golden Tigers, and Golden Tornados cheering on their

teams.

All this makes it quite obvious that, when considering

college nicknames, one must kiss a lot of frogs to get a

1

See list compiled by Adam Joshua Smargon at

www.smargon.net/nicknames.

Nos. 02-3627, 03-2281 & 03-2951 3

prince. But there are a few princes. For major universities,

one would be hard pressed to beat gems like The Crimson

Tide (Alabama), Razorbacks (Arkansas), Billikens2 (St.

Louis), Horned Frogs (TCU), and Tarheels (North Carolina).

But as we see it, some small schools take the cake when it

comes to nickname ingenuity. Can anyone top the Anteaters

of the University of California-Irvine; the Hardrockers of

the South Dakota School of Mines and Technology in Rapid

City; the Humpback Whales of the University of Alaska-

Southeast; the Judges (we are particularly partial to this

one) of Brandeis University; the Poets of Whittier College;

the Stormy Petrels of Oglethorpe University in Atlanta; the

Zips of the University of Akron; or the Vixens (will this

nickname be changed if the school goes coed?) of Sweet

Briar College in Virginia? As wonderful as all these are,

however, we give the best college nickname nod to the

University of California-Santa Cruz. Imagine the fear in the

hearts of opponents who travel there to face the imagina-

tively named “Banana Slugs”?3

From this brief overview of school nicknames, we can see

that they cover a lot of territory, from the very clever to the

rather unimaginative. But one thing is fairly clear—

although most are not at all controversial, some are. Even

the Banana Slug was born out of controversy. For many

2

What in the world is a “Billiken”?

3

As evidence of the Banana Slug’s uniqueness, we offer this:

of all the nicknames to choose from, acclaimed film director

Quentin Tarantino selected it to appear in one of the memorable

scenes of his 1994 classic, “Pulp Fiction.” Although the movie in-

cludes scores of unique scenes (film critic Roger Ebert gushes over

it in his 2002 book, The Great Movies), it was certainly shocking

to see stone-cold killer Vincent Vega (John Travolta) wearing a

Banana Slug T-shirt after being “cleansed” at the end of the

picture (but not the end of the story—you have to see it to grasp

the distinction).

4 Nos. 02-3627, 03-2281 & 03-2951

years, a banana slug (ariolomax dolichophalus to the work

of science) was only the unofficial mascot at UC-Santa

Cruz.4 In 1981, the chancellor named the “Sea Lion” as

the school’s official mascot. But some students would have

none of that. Arguing that the slug represented some of the

strongest elements of the campus, like flexibility and

nonagressiveness, the students pushed for and funded a

referendum which resulted in a landslide win for the

Banana Slug over the Sea Lion. And so it became the offi-

cial mascot.

Not all mascot controversies are “fought” out as simply as

was the dispute over the Banana Slug. Which brings us to

the University of Illinois where its nickname is the “Fight-

ing Illini,” a reference to a loose confederation of Algonquin

Indian Tribes that inhabited the upper Mississippi Valley

area when French explorers first journeyed there from

Canada in the early seventeenth century. The university’s

mascot, to mirror its nickname—or to some its symbol—is

“Chief Illiniwek.” Chief Illiniwek is controversial. And the

controversy remains unresolved today.

Chief Illiniwek does not participate in traditional cheer-

leading activities, but he does “perform” at athletic events.

Whether his presence, and what he does, makes him more

mascot than symbol, or vice versa, is really for others to

decide. Suffice to say that opponents consider him to be a

mascot, while supporters often refer to him as a symbol.

The “debate,” however, over the use of Native-American

names whether as logos, mascots, or symbols is not unique

to the University of Illinois.

Forty years ago, Marquette University used a mascot

named “Willie Wampum”—a crude Indian caricature with

a huge papier-mâché head (about 4 feet high!)—to whip up

the crowd at its basketball games in support of its nick-

4

See slug.web.com.

Nos. 02-3627, 03-2281 & 03-2951 5

name—Warriors. Marquette is now the Golden Eagles.

Similarly, the Stanford Indians became the “Cardinal,”

St. John’s transformed from “Red Men” to “Red Storm,”

Miami of Ohio moved from “Redskins” to “Redhawks,” and

Eastern Michigan went from “Hurons” to “Eagles.” Some

schools, most notably Florida State (“Seminoles”) and the

University of North Dakota5 (the Fighting Sioux), have re-

sisted change. And so has the University of Illinois.

Chief Illiniwek traces his existence to 1926 when, accord-

ing to the University of Illinois web site, as assistant band

director “conceived the idea of having a Native American

war dance performed at halftime at the Illinois-Pennsylva-

nia game.” A student, wearing “a homemade costume

complete with a war bonnet made of turkey feathers,”

performed a dance at halftime, which “was a big hit.”

According to NCAA News (April 23, 2001), the student

mascot also smoked a “peace pipe” at halftime with

Pennsylvania’s mascot, “William Penn.”

From the home page of the UIUC web site, we are in-

formed as to how the chief was named:

The expression “Illiniwek” was first used in conjunction

with the University of Illinois by football coach Bob

Zuppke in the mid 1920’s. Zup was a philosopher and

historian by training and inclination, and he was

5

It’s quite possible that the University of North Dakota is still

the “Fighting Sioux” because its $100 million ice hockey arena,

which was under construction in 2000, depended on it. According

to the April 23, 2001, edition of NCAA News, “News & Features,”

a hot debate over the school’s nickname was brewing in Grand

Forks when a wealthy alumnus—who contributed $35 million to

the ice hockey arena—threatened to close the project down if the

“Fighting Sioux” nickname and related logo were retired. The

North Dakota State Board of Higher Education subsequently

voted to keep the status quo.

6 Nos. 02-3627, 03-2281 & 03-2951

intrigued by the concept the Illini peoples held about

their identity and aspirations. They spoke a dialect of

the Algonquin language and used the term “Illiniwek”

to refer to the complete human being—the strong, agile

human body; the unfettered human intellect; the in-

domitable human spirit.

Chief Illiniwek’s “costume” underwent several revisions

before settling on its present incarnation in 1982. Similarly,

the chief’s dance, involving intricate footwork and fast,

spinning movements with split jumps and high kicks, has

changed over the years. While these changes were taking

place, some opposition to the presence of the chief began to

percolate around Urbana-Champaign, beginning around

1975.

The earliest signs of protest we could find appear in the

university’s 1975 yearbook, where this appears:

A CHALLENGE TO THE CHIEF

Chief Illiniwek has been hailed as a symbol of

University spirit since 1926. But while thousands have

cheered his acrobatic gyrations during halftime, others

look upon him with disgust.

“Chief Illiniwek is a mockery not only of Indian customs

but also of white people’s culture,” said Bonnie Fultz,

Citizens for the American Indian Movement (AIM)

executive board member. According to Fultz, the

continued use of Indian history as entertainment

degrades the Indian and disgraces the white race by

revealing an ignorance of tribal cultures.

“The Illiniwek exhibition is tantamount to someone

putting on a parody of a Catholic Mass,” Norma Linton,

Citizens for AIM member and visiting anthropology lec-

turer at the University said. She continued by saying

that Chief Illiniwek is an inaccurate composite.

Nos. 02-3627, 03-2281 & 03-2951 7

“The Indians within the Illinois area are of a different

tribal culture. The idea of symbols from several differ-

ent tribes mashed together angers Indians,” she added.

“They do not want their individual tribal customs

combined and distorted, but want their traditions to

remain separate and unique.”

Mike Gonzalez, the current Chief, said that the only

requirement in being considered for the position is an

eagle spread jump. However, Gonzalez felt that

Illiniwek is “majestic” and a symbol of fighting spirit.

“In no way does it degrade the American Indian,”

Gonzalez said. “I think Illiniwek honors the Indian.”

John Bitzer, Illiniwek from 1970-73, also defended the

role. “Other university mascots are just caricatures

but Illiniwek portrays the Indians as they would want

to be portrayed.”

Rep. A. Webber Borchers, R-Decatur, the originator of

the costume while a student at the University, also

spoke in defense of Chief Illiniwek. “It’s the most out-

standing tradition of any university in the land, with no

intention of disrespect to the Indians,” he said.

University officials have sensed the Chief Illiniwek

controversy. The symbol of Chief Illiniwek was removed

from University stationary this year to appease AIM.

Everett Kissinger, coordinator of Chief Illiniwek and

marching band director, was indignant about the

controversy. “Illiniwek has been a tradition here since

1926, and I don’t want you people (reporters) opening

up a lot of problems about it,” he said. Kissinger in turn

has ordered Gonzalez to avoid radio interviews and

large-scale publicity about his role as Chief.

The first sounds of protest over Chief Illiniwek in 1975

have grown to a crescendo. Many people today find him

to be offensive, including the Peoria Tribe of Indians of

Oklahoma, known collectively as the Illiniwek or Illinois

8 Nos. 02-3627, 03-2281 & 03-2951

Nations, who just a few years ago formally voted to ask the

university to stop using him as a mascot. And that takes us

to today’s suit where a loose group of faculty members and

a graduate teaching assistant6 at the university escalated

the debate a little further. The group, whom we will simply

call “plaintiffs,” claim that the chief creates a hostile

environment for Native American students and that he

promotes dissemination of inaccurate information in an

educational setting. They have expressed their opposition

to Chief Illiniwek through public speeches, letter writing,

meetings with student groups, and by submitting newspa-

per articles for publication. They have also attended

meetings protesting what they term is his use as a mascot.

The university has not interfered with any of these activi-

ties.

It was not until the plaintiffs expressed interest in con-

tacting prospective student-athletes about the controversy

surrounding Chief Illiniwek that the university began to

frown on their activities. The university was alerted to their

activities by a press account on February 28, 2001, wherein

some plaintiffs made known their intention to contact

prospective student-athletes and inform them of the Chief

Illiniwek controversy and the implications of competing

athletically on behalf of a university which they said

employs racial stereotypes. That got the university’s

attention.

Vincent Ille, the assistant director of athletics, asked the

membership services coordinator of the National Collegiate

Athletics Association (NCAA) whether NCAA rules applied

to contacts by faculty members with prospective student-

athletes.

6

The teaching assistant, Cydney Crue, identifies herself as a

student; defendant Aiken claims she is a faculty member. For

purposes of this decision, it is not necessary for us to decide this

issue of university politics.

Nos. 02-3627, 03-2281 & 03-2951 9

Two days later, on March 2, 2001, the chancellor of the

university, defendant Michael Aiken, sent the e-mail which

precipitated this lawsuit. It said:

Questions and concerns have been raised recently about

potential contacts by employees, students or others

associated with the University with student athletes

who are being recruited by the University of Illinois. As

a member of the National Collegiate Athletics Associa-

tion (NCAA) and the Big Ten Athletic Conference, there

are a number of rules with which all persons associated

with the University must comply. For example, the

NCAA regulates the timing, nature and frequency of

contacts between any University employee and prospec-

tive athletes. It is the responsibility of the coaches and

administration in the Division of Intercollegiate Athlet-

ics to recruit the best student athletes to participate in

varsity sports at the University of Illinois. No contacts

are permitted with prospective student athletes,

including high school and junior college students, by

University students, employees or others associated

with the University without express authorization of

the Director of Athletics or his designee.

The University faces potentially serious sanctions for

violation of NCAA or Big Ten rules. All members of the

University community are expected to abide by these

rules, and certainly any intentional violations will not

be condoned. It is the responsibility of each member of

the University to ensure that all students, employees

and others associated with the University conduct

themselves in a sportsmanlike manner. Questions

about the rules should be addressed to Mr. Vince Ille,

Assistant Director for Compliance, Bielfeldt Athletic

Administration Building, 1700 S. Fourth Street, Cham-

paign, IL 61820, (217) 333-5731, E-mail: ille@uiuc.edu.

Immediately, the university administration received ques-

tions about the reach of what was accurately termed a

10 Nos. 02-3627, 03-2281 & 03-2951

“preclearance directive.” Chancellor Aiken directed Associ-

ate Chancellor Larry Mann to oversee Mr. Ille as he

responded to inquiries.

The same day Aiken’s e-mail went out, plaintiff Frederick

Hoxie e-mailed Aiken, stating his desire to advise prospec-

tive student-athletes of the university’s unresponsiveness

to the concerns of Native Americans. Hoxie said he thought

the preclearance directive barred him from writing to

prospective students, and he asked for guidance.

Almost a week after Hoxie’s request, on March 8, Ille

asked the NCAA, in writing, for guidance as to whether its

rules applied in six specific situations:

1. telephone calls where the recipient is “selected

based on his or her participation in athletics”

2. telephone calls “for the purpose of discussing issues

related to athletics or the prospective student-

athlete’s possible participation in intercollegiate

athletics”

3. correspondence where the recipient is “selected

based upon his or her participation in athletics”

4. correspondence “for the purpose of addressing

issues related to athletics or the prospective stud-

ent-athlete’s possible participation in intercollegiate

athletics”

5. in-person off-campus contact where the recipient is

“selected based upon his or her participation in

athletics”

6. in-person off-campus contact “for the purpose of

addressing issues related to athletics or the pro-

spective student-athlete’s possible participation in

intercollegiate athletics”

The NCAA replied the same day:

Nos. 02-3627, 03-2281 & 03-2951 11

NCAA recruiting regulations are designed in part

to protect prospective student-athletes from undue

pressures that may interfere with their scholastic or

athletics interest as well as to promote equity among

member institutions in their recruiting of prospects. In

this regard, if an institution either identifies and con-

tacts a group of prospective students based on their

athletics ability or contacts prospective students to

discuss their athletics participation those contacts are

subject to NCAA regulations. Therefore, as outlined in

your questions, if an institutional staff member makes

a telephone contact, an in-person off-campus contact or

sends written correspondence to a prospective student

to discuss his or her athletics ability or possible par-

ticipation in intercollegiate athletics such contacts

would be considered recruiting contacts and would be

subject to NCAA regulations. Further, if an institu-

tional staff member makes a telephone contact, an in-

person contact or sends written correspondence to

prospective students who have been identified based on

their athletics ability such contacts would be considered

recruiting contacts regardless of the content of the

message and thus would also be subject to NCAA

regulations. I hope this information is helpful. Please

feel free to contact me if you have further questions.

After receiving the NCAA response, on March 14, Ille in-

formed Hoxie that the directive applied in four situations:

when a prospective student-athlete is identified for contact

based on participation in athletics, if the contact is made to

address any issue relating to athletics, if it is made to

address the prospective student’s possible participation in

athletics, or if it is made at the request of a member of the

athletics department.

On March 19, the statements from his e-mail were es-

sentially reiterated by Chancellor Aiken in an address to

the faculty Senate:

12 Nos. 02-3627, 03-2281 & 03-2951

The University values and defends the principles of free

speech and academic freedom for members of the

University community.

The University does not seek to interfere with the ex-

pression of views regarding matters of public concern.

However, we also are a member of the NCAA, and are

committed to controlling our intercollegiate athletics

program in compliance with the rules and regulations

of the NCAA.

This means that we expect members of the University

community to respect NCAA rules, and certainly not

intentionally violate them.

As explained in my e-mail of March 2, there are nu-

merous and detailed NCAA rules regarding contacts

by faculty and other University representatives with

prospective student-athletes. The NCAA Division I

Manual itself is 480 pages long. That is why my e-mail

advised that any such contacts should occur only with

the express authorization of the Director of Athletics or

his designee, who have experience in these issues. This

is the same policy that this campus consistently has

followed in regulating contacts with prospective

student-athletes.

I have sought advice from the DIA compliance officer,

Vince Ille, and Legal Counsel on this issue. Mr. Ille also

consulted with the NCAA.

We expect members of the University community to

express their viewpoints without violating NCAA rules

concerning contacts with prospective student-athletes.

Numerous such opportunities abound, including letters

to the editor, press releases, radio/TV interviews, leaf-

leting, and public speeches. Various faculty members

and others have availed themselves of these opportuni-

ties over the years.

Nos. 02-3627, 03-2281 & 03-2951 13

Let me address one other point: we have received some

e-mails in response to my March 2 e-mail that pose a

series of hypothetical questions about the First Amend-

ment and other issues. Engaging in a debate at this

time about such matters hardly seems helpful or

productive.

In two ways, Aiken’s statement was broader than the

NCAA response: it applied to students as well as staff

members, and it applied to all prospective contacts with

prospective student-athletes. Similarly, Mr. Ille did not

limit the reach of the preclearance directive. Rather, he said

it applied to any contacts made “for the purpose of ad-

dressing any issue related to athletics.” Ille insisted that

persons intending to contact prospective athletes inform

him of what they were going to be talking about.

These statements were seen by the plaintiffs as prior

restraints on their free-speech rights so they filed this

lawsuit on March 22. The district judge, the Honorable

Michael M. Mihm, after a hearing on April 4, 2001, granted

the plaintiffs’ request and issued a temporary restraining

order (TRO) two days later. The TRO enjoined the chancel-

lor from enforcing the preclearance directive. After the

entry of the TRO, Chancellor Aiken retracted part of his

original e-mail in a second e-mail sent June 5, 2001:

As you may recall, on March 2, 2001, I sent an e-mail

message to persons associated with the University re-

garding “Contact with Potential Student Athletes.” My

e-mail message stated, in part, that: “No contacts are

permitted with prospective student athletes, including

high school and junior college students, by University

students, employees or others associated with the

University without express authorization of the Direc-

tor of Athletics or his designee.” However, in light of

Judge Mihm’s order of April 6, 2001 and more recent

testimony by representatives of the National Collegiate

14 Nos. 02-3627, 03-2281 & 03-2951

Athletic Association (NCAA), I have concluded that

express authorization of the Director of Athletics or his

designee should not be required. Therefore, effective

this date, I am permanently retracting the above-

quoted sentence of my March 2, 2001 e-mail message.

The retraction of the above-quoted language from my

earlier e-mail does not lessen the University’s commit-

ment to complying with NCAA rules in the recruit-

ment of student athletes at the University of Illinois. I

continue to call upon all members of the University

community to abide by the rules of the NCAA when

dealing with potential student athletes. Should you

have questions concerning NCAA rules, please contact

Mr. Vince Ille, Assistant Director for Compliance, at the

Division of Intercollegiate Athletics. Thank you.

Despite the retraction (which rendered the TRO moot)

and the appointment of a new chancellor,7 the case pro-

ceeded. The district judge ultimately entered summary

judgment for the plaintiffs on their request for a declaratory

judgment that the directive violated their First Amendment

rights; he ordered nominal damages of $1,000 to plaintiffs

Cydney Crue, Brenda Farnell, Hoxie, Stephen Kaufman,

and Philip Phillips plus attorney’s fees to them as prevail-

ing parties. Chancellor Aiken appeals.

On the merits, the issue before us is whether the March

2 e-mail violated the plaintiffs’ First Amendment rights. A

secondary issue is whether Chancellor Aiken, in his indi-

vidual capacity, is entitled to qualified immunity because

the law at the time the e-mail was in force did not clearly

establish that it violated the First Amendment. We review

a grant of summary judgment de novo.

7

We note, off the record, that the new chancellor has now re-

signed. According to the Chicago Tribune, February 26, 2004,

Chancellor Nancy Cantor, who favors retiring Chief Illiniwek,

resigned but denied that it was because of the chief.

Nos. 02-3627, 03-2281 & 03-2951 15

As a preliminary matter, we will mention the claim that

this action must be dismissed as moot because the offending

e-mail has been retracted and Chancellor Aiken has

resigned. Those facts render the request for injunctive relief

moot; however, the requests for declaratory relief and for

damages remain. When a claim for injunctive relief is

barred but a claim for damages remains, a declaratory

judgment as a predicate to a damages award can survive.

Wolff v. McDonnell, 418 U.S. 539 (1974); see also Powell v.

McCormack, 395 U.S. 486 (1969); Penny Saver Publ’ns, Inc.

v. Village of Hazel Crest, 905 F.2d 150 (7th Cir. 1990).

Accordingly, we will proceed to the merits.

There is no doubt that the speech involved here concerns

a matter of public concern. And so to decide the merits of

the dispute we must perform a balancing test. The parties

disagree, however, what test should be applied. Is it the one

set out in Pickering v. Board of Education, 391 U.S. 563

(1968), or the one announced in United States v. National

Treasury Employees Union, 513 U.S. 454 (1995) (NTEU)?

Both cases and their tests concern the scope of free-speech

rights enjoyed by public employees. To oversimplify,

Pickering applies to speech which has already taken place,

for which the public employer seeks to punish the speaker.

NTEU applies when a prior restraint is placed on employee

speech. That distinction seems simple enough, but of

course, like almost all things legal, there are ways to argue

about where the dividing line should be.

The Pickering Court struck a balance between the in-

terests of the employee, as a citizen, in commenting upon

matters of public concern and the interest of the State, as

an employer, in promoting the efficiency of the public ser-

vices it performs through its employees. Pickering was

a teacher in a public school who wrote a letter to a local

newspaper criticizing the school board’s handling of a bond

issue. The board dismissed him from employment. After

balancing the respective rights, the Court determined that,

16 Nos. 02-3627, 03-2281 & 03-2951

in the situation before it, the dismissal was improper. In

Connick v. Myers, 461 U.S. 138, 140 (1983), the Court

further fleshed out its view of what constitutes “matters of

public concern.”

Then, in NTEU, the Court considered the constitution-

ality of a law setting out a broad prohibition on federal

employees receiving compensation for making speeches

or writing articles. The Court noted that the Pickering

test did not quite fit the situation before it. NTEU said

Pickering involved a post hoc analysis of one employee’s

speech and its impact on that employee’s public responsibil-

ities. The ban in NTEU was in the nature of a prior re-

straint on a large number of people on a multitude of

issues. The Court determined that, when imposing a prior

restraint on employee speech, the government has a greater

burden than when it is making an isolated employment

decision. With a prior restraint, the government must

demonstrate that

the interests of both potential audiences and a vast

group of present and future employees in a broad range

of present and future expression are outweighed by that

expressions’ “necessary impact on the actual operation”

of the Government.

NTEU, 513 U.S. at 468, quoting Pickering, 391 U.S. at 571.

Chancellor Aiken points out that the prior restraint in

NTEU was broader than the one here. He argues, therefore,

that we must use a Pickering analysis. We disagree. We are

not considering whether the university improperly disci-

plined an individual for a single statement. Even though

there are differences in scope between the enormously wide

ban in NTEU and the one here, Chancellor Aiken’s directive

is a broad prohibition on speech on a matter of significant

importance and public concern. It applied to 44,000 mem-

bers of the university community, including students. The

broad scope of the March 2 directive requires, we think, an

analysis under the NTEU test.

Nos. 02-3627, 03-2281 & 03-2951 17

We have applied the NTEU test in a case involving a

prior restraint which is similar to the one now before us. In

Milwaukee Police Association v. Jones, 192 F.3d 742 (7th

Cir. 1999), Police Chief Arthur Jones issued a directive to

his officers forbidding them from discussing with anyone,

including their union representatives, any verbal or written

complaint they might make against another officer. Later,

the directive was clarified and expanded by subordinate

officers in the police department. We found that the NTEU

test was appropriate because the directive banned speech

generally; it was not an isolated disciplinary response to

previously uttered speech.

When using the NTEU balancing test, we look first to the

interest the university sees threatened by the speech. In its

view, the purpose of the speech was to harm the university’s

athletic recruiting in order to pressure the university into

dropping Chief Illiniwek as mascot. The university says it

had a compelling interest in adhering to the rules of the

NCAA to protect its athletic program, that program being

of particular importance to the university. The university,

having had prior unpleasant experience with NCAA

sanctions, was particularly concerned with NCAA rules. It

points out that the NCAA has broad authority to enforce its

rules and to sanction institutions and athletes for viola-

tions. For minor violations it can terminate an institution’s

recruitment of an athlete, impose ineligibility on an athlete,

require the institution to forfeit a game for a rules violation,

impose a fine, or reduce the number of financial aid awards

the institution can grant. NCAA bylaw 19.6.1. For more

serious violations it can place an institution on probation,

prohibit recruiting efforts for a year, reduce the number of

financial aid awards it can grant, and even terminate

institutional staff members. NCAA bylaw 19.6.2. And in

this case, in fact, NCAA and Big Ten officials informed

Chancellor Aiken that the NCAA rules covered communica-

tions designed to dissuade athletes from enrolling in the

18 Nos. 02-3627, 03-2281 & 03-2951

university. In addition to protecting itself from sanctions,

the university also says it wants to protect prospective

athletes from undue pressure and to maintain an efficient

recruiting program.

For their part, the plaintiffs assert their long-stand-

ing interest in convincing the administration that Chief

Illiniwek hurts the university by, for example, creating a

hostile environment for Native American students. The

plaintiffs’ speech is “addressed to a public audience . . .

made outside the workplace, and involve[s] content largely

unrelated to their government employment.” NTEU, 513

U.S. at 466. They say they do not intend to harm the uni-

versity but seek to make it a better place “free of a mascot

that mocks the religious rituals of Native Americans.” They

also say they have an interest in the timeliness of their

activity because the NCAA rules limit the timing of recruit-

ing activity. The preclearance directive does not have a

schedule for the review of proposed communications.

Therefore, nothing prevents Mr. Ille from delaying approval

of their communications until the recruiting season is over.

Because we are dealing with a significant prior restraint

on speech, we must determine whether the impact of the

speech on the actual operation of the university and its

athletic program outweighs the plaintiffs’ right to free

expression on the matter which is, as we have noted, a clear

issue of public concern. First, we note that the fact that the

NCAA might or might not like the speech cannot ultimately

control a First Amendment issue like this. This is especially

true where, as here, the mission of the NCAA is not related

to the purpose of the speech. It would seem that the

university should reasonably have questioned further the

NCAA response that its rules prohibited the speech at

issue. The plaintiffs were able to easily determine that

there was no real threat that the university would be

penalized because of their activities. In response to an

inquiry, the NCAA stated to the plaintiffs that they may,

Nos. 02-3627, 03-2281 & 03-2951 19

without causing sanction to the university, send letters

informing prospective student-athletes about the Chief

Illiniwek controversy. Even without that assurance, one

surely could doubt that the NCAA would venture to over-

step its bounds in this manner and be seen as protecting an

individual university’s questionable mascot when so many

other universities have changed theirs. However, were we

faced with a situation in which the university would in

some way be sanctioned based on the plaintiffs’ activities,

it does not necessarily follow that the university’s interest

in preventing a sanction would outweigh a legitimate

interest in protesting allegedly racially offensive behavior.

The free-speech interest of the plaintiffs—members of a

major public university community—in questioning what

they see as blatant racial stereotyping is substantial. That

interest is not outweighed by fear that an athletic associ-

ation might not approve of what they say. Furthermore,

if something said by a plaintiff to prospective student-

athletes is actionable in and of itself, disciplinary action,

subject to a Pickering analysis, could be pursued by the

university. For these reasons, we conclude that the district

court correctly found that the plaintiffs’ free-speech rights

were infringed by the March 2 preclearance directive.

Chancellor Aiken’s claim of qualified immunity also fails.

Qualified immunity protects from civil liability those who

perform discretionary functions so long as “their conduct

does not violate clearly established statutory or consti-

tutional rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The

burden in establishing that a right is clearly established

falls on the plaintiff. Gregorich v. Lund, 54 F.3d 410 (7th

Cir. 1995). Whether a right is clearly established depends

on the particular facts of the case. Here, that public employ-

ees retain certain rights to free speech on matters of public

concern has been apparent since the Pickering decision in

20 Nos. 02-3627, 03-2281 & 03-2951

1968 and NTEU in 1995. We added our voice on a remark-

ably similar situation in Jones in 1999. Chancellor Aiken

sent his critical e-mail in March 2001. He cannot reason-

ably claim that the law was unclear.

Chancellor Aiken also appeals from the award of attorney

fees. He does not contest the amount of the award, but

rather contends that because the fee request was one day

late it should have been disallowed.

Rule 54(d)(2)(B) of the Federal Rules of Civil Procedure

says that “[u]nless otherwise provided by statute or order of

the court, the motion must be filed no later than 14 days

after entry of judgment . . . .” Pursuant to the introductory

clause, the United States District Court for the Central

District of Illinois has issued a local rule which requires fee

petitions to be filed within 30 days of final judgment. The

petition in this case was filed on the 31st day. The judge

found that the untimely filing was due to excusable neglect

and accepted the petition. Chancellor Aiken argues that the

neglect in this case was not excusable.

Fed. R. Civ. P. 6(b) allows for the enlargement of time

after the expiration of the specified period “where the fail-

ure to act was the result of excusable neglect.” The rule also

sets out actions under certain of the rules in which there

can be extensions granted. Rule 54 is not among those.

Indeed, we have determined that Fed. R. Civ. P. 54 is not

jurisdictional. See Johnson v. Lafayette Fire Fighters Ass’n

Local 472, 51 F.3d 726 (7th Cir. 1995). It can and has been

modified by the local rule. In determining whether a late

filing is the result of excusable neglect, the district court

looks to whether there will be prejudice to the opposing

party, the effect on the judicial proceedings, the reason for

the delay, and whether the movant acted in good faith.

Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507

U.S. 380 (1993). Our review of a finding of excusable neglect

is only for an abuse of discretion. Robb v. Norfolk & Western

Nos. 02-3627, 03-2281 & 03-2951 21

Rwy. Co., 122 F.3d 354 (7th Cir. 1997). We afford particular

deference in procedural matters because of the trial judge’s

familiarity with the parties.

In this case, the delay was as short as possible—one day.

The reason for it was an error in calculating the 30-day

period, which should perhaps be embarrassing to the at-

torney but which surely cannot be said to have been in bad

faith. Nor can it be said that there would be any effect on

the judicial proceedings, particularly as Aiken himself

asked for an extension of time of 60 to 100 days to respond

to the fee petition. And, as a fundamental matter, the dis-

trict judge is in the best position to decide whether the

proceedings are adversely affected. We cannot find an abuse

of discretion in the decision to allow the petition to be filed.

Accordingly, the judgment of the district court is

AFFIRMED.

MANION, Circuit Judge, dissenting. The plaintiffs, faculty

members at the University of Illinois, are among a number

of people, in and outside the University, who have for years

objected to the use of Chief Illiniwek as part of the cheer-

leading effort at athletic events, particularly football games.

As the court notes, this symbol is, among other things,

labeled a mockery of Indian customs and white people’s

culture. Criticism by faculty, students, and anyone else at

the University who cared was unrestricted and included

protests, demonstrations, radio and television interviews,

letters to editors and articles published in many venues. To

the plaintiffs, this was not enough. They wanted to write to

22 Nos. 02-3627, 03-2281 & 03-2951

potential athletic recruits for University teams and discour-

age attendance because of the offensive use of the Chief.

But when the NCAA issued a guarded warning that direct

contact with potential recruits by University officials could

violate NCAA regulations, the University reacted. Chancel-

lor Aiken issued the e-mail that stated in part:

. . . [T]he NCAA regulates the timing, nature and

frequency of contacts between any University employee

and prospective athletes. It is the responsibility of

the coaches and administration in the Division of

Intercollegiate Athletics to recruit the best student

athletes to participate in varsity sports at the

University of Illinois. No contacts are permitted with

prospective student athletes, including high school and

junior college students, by University students, em-

ployees or others associated with the University with-

out express authorization of the Director of Athletics or

his designee.

The University faces potentially serious sanctions for

violation of NCAA or Big Ten rules. All members of the

University community are expected to abide by these

rules, and certainly any intentional violations will not

be condoned. . . . Questions about the rules should be

addressed to Mr. Vince Ille, Assistant Director for

Compliance . . . .

The district court ruled that this was an unconstitutional

prior restraint on speech and issued a temporary restrain-

ing order. Chancellor Aiken retracted the directive, but the

damage was done. The court awarded $1,000 damages to

each plaintiff plus attorney’s fees.

I.

On appeal, the critical question before us is which bal-

ancing test applies to the Chancellor’s directive regarding

Nos. 02-3627, 03-2281 & 03-2951 23

speech by state employees: the balancing test derived from

Pickering v. Board of Education, 391 U.S. 563 (1968), and

Connick v. Myers, 461 U.S. 138, 140 (1983)

(Pickering/Connick), or the strict scrutiny approach of

United States v. National Treasury Employees Union, 513

U.S. 454 (1995) (NTEU). We need to offer clear guidance as

to when the heightened scrutiny of NTEU does and does not

apply. Instead the court treats all prior restraints alike

without balancing the governmental interests at issue. In

effect the court creates a new rule of law pronouncing that

NTEU applies to all “broad prohibitions” on government

employee speech. Such “broad prohibitions” are defined as

involving a “large number” of potential plaintiffs concerning

a matter of “significant importance.” For these and the

following reasons, I respectfully dissent.

II.

As an initial matter, both the district court and this court

summarily conclude that the e-mail is a prior restraint. The

prior restraint label, however, has a significantly different

meaning when applied to the speech of governmental

employees (as is the case here) than when applied to non-

governmental employees. It is clear that “the State’s

interests as an employer in regulating the speech of its

employees ‘differ significantly from those it possesses in

connection with regulation of the speech of the citizenry in

general.’ ” Connick, 461 U.S. at 140 (quoting Pickering, 391

U.S. at 568). While this circuit has not squarely addressed

the variations or gradations of prior restraints in the

government employee context after NTEU, it is well settled

that traditional prior restraint analysis is inappropriate

where the government acts under its special authority as an

employer. See, e.g., Weaver v. United States Information

Agency, 87 F.3d 1429, 1440 (D.C. Cir. 1996). In fact, “courts

have uniformly assessed prior restraints in the setting of

24 Nos. 02-3627, 03-2281 & 03-2951

government employment by standards less demanding than

those used for traditional prior restraints.” Id. at 1443.

Calling the e-mail a “preclearance directive,” even if an

accurate label, does not establish that the e-mail constitutes

a prior restraint subject to the heightened scrutiny of

NTEU in the context of government employment. The

distinction between a relatively mild preclearance directive

and a broad general prohibition on speech in the employ-

ment context—i.e., a full-fledged prior restraint—is signif-

icant. We have yet to address in a published opinion

whether NTEU applies in cases of preclearance directives

and we have applied NTEU in only one reported case in-

volving a sweeping, general ban (or prior restraint) on

speech. See Milwaukee Police Assoc. v. Jones, 192 F.3d 742,

750-51 (7th Cir. 1999).

Jones amplifies the differences between a preclearance

directive and a more sweeping general ban. Jones addresses

a ban on “all communication before it occurs.” Id. at 749.

The Police Chief of Milwaukee issued an order to all police

department employees, stating that if any employee made

a verbal or written complaint against another employee, the

complaint had to remain confidential. Id. at 744-45. In fact,

the Chief’s directive forbade complaining members from

discussing the matter with their lawyer and/or union

representative. Id. at 745. The ban emphasized that

complaining officers “are to be instructed not to discuss the

matter with anyone.” Id. (emphasis added).

In sum, Jones addresses an actual prohibition of speech

in totality, including mere discussion of the matter. Jones

did not involve a simple prepublication review of speech. Cf.

Weaver, 87 F.3d at 1443 (holding valid under Pickering and

NTEU a prepublication review of speech). In contrast to the

broad, sweeping (and total) ban on speech at issue in Jones,

the e-mail at issue here merely applied to a narrow band of

speech by University employees directed only at potential

Nos. 02-3627, 03-2281 & 03-2951 25

student athletes who were currently in high school or junior

college. It is undisputed that the e-mail is viewpoint- and

content-neutral, see Ward v. Rock Against Racism, 491 U.S.

781, 791 (1989); Renton v. Playtime Theatres, Inc., 475 U.S.

41, 47-48 (1986), and is not intended to censor any certain

message, whether it be in favor of or against the Chief. See

Appellee’s brief, p. 19 (“[T]he Preclearance Directive applies

without regard to the content of the communication, if the

student is selected because of his or her participation in

athletics.”).

The e-mail does not purport to prohibit the right to leaf-

let, make speeches, write letters to the editor, or freely

debate/discuss the merits or demerits of the Chief in any

forum. Instead, the plain language of the e-mail merely

reminds potential speakers of the time restrictions imposed

by the NCAA rules on contacting prospective student

athletes. It also cautions that intentional violations of these

rules will not be condoned. This is a prototypical prepublica-

tion review calling for a dialogue between potential speak-

ers and the University in order to assess the appropriate

manner and timing for the speech. The D.C. Circuit has

upheld a similar directive requiring a dialogue with the

government before publication. See Weaver, 87 F.3d at 1431,

1435. Accordingly, the e-mail should not receive the height-

ened scrutiny of NTEU, which Jones properly reserves for

sweeping, general bans on all communications.

Even if the preclearance directive were properly labeled

as a full-fledged prior restraint in the government employee

context, not all prior restraints on speech are analyzed

under the same test. Jones, 192 F.3d at 749. Prior restraint

analyses applicable to private sector plaintiffs do not apply

when the plaintiffs are government employees. Id; Weaver,

87 F.3d at 1440 (“There is certainly no logical reason to

think that the existence of some element of prior restraint

should remove a restriction on employee speech from the

usual Pickering approach.”). Here, however, the court

26 Nos. 02-3627, 03-2281 & 03-2951

departs from the traditional balancing test applied to

government employees and instead applies the heightened

scrutiny of NTEU. This application more closely resembles

the test for prior restraints involving private sector plain-

tiffs. In choosing the NTEU heightened scrutiny test, the

court reasons: (1) “NTEU applies when a prior restraint is

placed on employee speech”; (2) the Preclearance Directive

“is a broad prohibition on speech on a matter of significant

importance1 and public concern”; and (3) the preclearance

directive applied to “44,000 members of the university

community.” Ante at 15, 17.

These reasons do not suffice. The court even acknowl-

edges the oversimplified nature of its conclusion that NTEU

applies to all prior restraints and that Pickering/ Connick

applies to instances of speech that have already taken

place. Not only is the before-and-after distinction

an oversimplification, but, as Jones makes clear, it is a mis-

statement of law. See Jones, 192 F.3d at 749; see also

NTEU, 513 U.S. at 480 (O’Connor, J., concur-

ring/dissenting) (“[R]eliance on the ex ante/ex post distinc-

tion is not a substitute for the case-by-case application of

Pickering.”).

And while the speech clearly involves a matter of public

concern, the Directive is not so clearly a broad prohibition.

The court’s claim that the e-mail applies to 44,000 students,

faculty, and staff of the University ignores NTEU’s critical

distinction concerning the scope of the speech prohibited by

the government. The 44,000 number may accurately reflect

the entire population of the University of Illinois, but this

case involves far fewer potential speakers: only those

plaintiffs employed by the University.

1

It is undisputed that the plaintiffs’ speech involves a matter of

public concern. Whether the speech is of “significant importance”

or not should be of no concern to this court.

Nos. 02-3627, 03-2281 & 03-2951 27

Even so, the fact that there were nearly two million

potential speakers at issue in NTEU, 513 U.S. at 481-82

(O’Connor, J. concurring/dissenting), was not the determin-

ing factor in the Court’s decision to apply strict scrutiny.

Nor should the 44,000 number, or a much smaller number,

be dispositive here. In addition to focusing on the number

of potential plaintiffs, NTEU emphasized the “sweeping

statutory impediment to speech,” which the opinion charac-

terized as a “wholesale deterrent to a broad category of

expression by a massive number of potential speakers.” Id.

at 467 (emphasis added) (footnote omitted). The emphasis

should not be on numbers, but rather on the degree to

which speech is deterred and the avenues of speech left

open to the plaintiffs. NTEU, 513 U.S. at 467 n.11.

NTEU involved a broad congressional prohibition on

speech that prevented nearly two million federal employees

(including lower-level employees) from accepting any

compensation for making speeches or writing articles, even

if the speech or article were totally unconnected to the em-

ployee’s official duties. Id. at 457. The ban went so far as to

prohibit a mail handler from receiving compensation for

giving a speech on the Quaker religion and an aerospace

engineer from being compensated for lecturing on black

history. Id. at 461. To be sure, NTEU involved plaintiffs

seeking compensation “for their expressive activities in

their capacity as citizens, not as government employees.” Id.

at 465 (emphasis added). The ban at issue applied to “off-

hour speech bearing no nexus to Government employ-

ment—speech that by definition does not relate to ‘internal

office affairs’ or the employee’s status as an employee.” Id.

at 480 (O’Connor, J., concurring/dissenting) (citing Connick,

461 U.S. at 149).

In stark contrast, the preclearance directive in this

case did not purport to limit the plaintiffs’ right to give

speeches concerning the Chief controversy, to write let-

ters to the editor, participate in demonstrations, etc. The e-

28 Nos. 02-3627, 03-2281 & 03-2951

mail left open a wide variety of unfettered speech oppor-

tunities for the plaintiffs, which the plaintiffs frequently

used. Instead of fully availing themselves of the many

alternative speech opportunities, the plaintiffs intended

to make their employee status an integral component of

their speech. Specifically, they intended to write letters to

potential student athletes on University letterhead to

discourage attendance at the University. The preclearance

directive applies solely to the plaintiffs’ acts in their gov-

ernment employee capacity, as opposed to the plaintiffs’

acts as citizens. The NCAA warning was directed at con-

tacts with potential recruits by school officials. NTEU does

not establish a right for government employee speakers to

elevate the influence of their speech by emphasizing their

official government position. In sum, the ban at issue in

NTEU is vastly different than Chancellor Aiken’s e-mail

because the prohibition in NTEU involved a significantly

greater number of potential speakers; it involved a whole-

sale deterrent to a broad category of expression; and it

applied both to the plaintiff’s capacity as government

employees and as public citizens.

It is true that the prior restraint context imposes prob-

lems not present in the typical Pickering/Connick analysis

which involves a post hoc disciplinary decision. See Jones,

192 F.3d at 750. In addition, this case is different than the

typical application of Pickering/Connick because the

plaintiffs have not suffered any adverse employment action

often at issue in the application of Pickering/Connick. See,

e.g., Rankin v. McPherson, 483 U.S. 378, 388 (1987). Re-

gardless, there is no authority for applying NTEU to all

cases of prior restraints. See Jones, 192 F.3d at 749.

Applying the heightened standard of NTEU to restrictions

Nos. 02-3627, 03-2281 & 03-2951 29

on employee speech is the exception, not the rule.2 See, e.g.,

Belcher v. City of McAlester, 324 F.3d 1203, 1206 n.3 (10th

Cir. 2003) (rejecting request to apply NTEU to prior

restraint because the restraint was narrow and left open

ample alternate channels of communication). Likewise, this

case is far removed from the facts of NTEU. The

Pickering/Connick balancing test is appropriate because

the e-mail leaves open many alternate venues for the

plaintiffs to communicate their message. In fact, we have

previously applied Pickering/Connick and rejected an in-

vitation to apply NTEU to prohibitions that are not a

“blanket restriction on speech” where “alternate venues” are

left open for the plaintiffs’ communication. See Messman v.

Helmke, 133 F.3d 1042, 1047 (7th Cir. 1998).

Under Pickering/Connick, the proper analysis requires “a

balance between the interests of the [employee], as a

citizen, in commenting upon matters of public concern and

the interest of the State, as an employer, in promoting the

efficiency of the public services it performs through its

employees.” Connick, 461 U.S. at 140 (quoting Pickering,

391 U.S. at 568). The government’s interest when acting

as a mere sovereign is subordinate, but the government’s

interest as an employer is a “significant one.” Waters v.

Churchill, 511 U.S. 611, 675 (1994). In conducting this

balance, the Supreme Court cautions that we are to give

substantial weight to government employers’ reasonable

predictions of disruption, even when the speech involved

2

There is no legal requirement that the speech actually be deliv-

ered before Pickering/Connick can be applied. That is, the gov-

ernment’s interest can be weighed in anticipation of the potential

effect, without having to wait and review the impact of the speech

after the fact. See NTEU, 513 U.S. 454, 481 (O’Connor, J. dissent-

ing, concurring) (emphasizing that the ex ante/ex post distinction

is not the determinative factor triggering NTEU heightened

scrutiny).

30 Nos. 02-3627, 03-2281 & 03-2951

was on a matter of public concern. Id. at 673-74. In fact, the

Supreme Court has deferred to reasonable predictions of

disruption by upholding a congressional ban on Executive

Branch employees from taking an active part in political

campaigns or political management. Public Workers v.

Mitchell, 330 U.S. 75, 99 (1947).

The plaintiffs’ depositions reveal that the purpose behind

the letter-writing campaign was to encourage potential

student athletes not to attend the University. We have

consistently permitted government employers to take pro-

active steps when facing obvious acts of disruption by em-

ployees. See Sullivan v. Ramirez, 360 F.3d 692, 701 (7th

Cir. 2004) (balancing “the potential disruptiveness” of

the speech); Greer v. Amesqua, 212 F.3d 358, 372 (7th

Cir. 2000); Propst v. Bitzer, 39 F.3d 148, 152 (7th Cir. 1994).

The Illinois legislature has declared national athletic

competition “essential” to the state’s schools and their

finances. 110 ILCS 25/2(c). Damage to recruiting or other

aspects of the athletics program is damage to the

University’s bottom line.3 See Messman, 133 F.3d at 1047;

3

The court does not discuss the University’s interest in effec-

tive recruiting and maintaining a sound bottom line. Our pre-

cedent emphasizes that “[e]fficiency and fiscal responsibility are

powerful governmental interests.” Messman, 133 F.3d at 1047.

The plaintiffs acknowledge the University’s actual interest in

recruiting speech and that Chancellor Aiken “might constitution-

ally require pre-approval of such contacts.” Nor does the court

discuss the University’s interest in regulating the timing of

potentially intimidating, confusing, or burdensome communication

to impressionable teenage athletes who are entitled to privacy. Cf.

Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530, 1541 (7th Cir.

1996) (permitting principal to prescreen for speech that “materi-

ally interfere[d] with school procedures and intrude[d] into school

affairs or the lives of others.”). Far from being “paternalistic” as

the plaintiffs claim, such concerns are the basis for the NCAA

(continued...)

Nos. 02-3627, 03-2281 & 03-2951 31

cf. Lewis v. Cowen, 165 F.3d 154, 164 (2d Cir. 1999) (up-

holding defendants’ predictions of disruption that state

employee’s “refusal to promote the proposed change would

result in negative publicity and decreased morale, in turn

impairing . . . profitability.”).

The government interest here goes beyond the obvious

interest in effective recruiting. Compliance with NCAA

regulations concerning the quantity and timing of contacts

between representatives of the University and prospective

student athletes is critical to the University. For even

“secondary,” “isolated,” or “inadvertent” violations with

“minimal” effects, the NCAA wields an arsenal of stiff

sanctions, including terminating the school’s recruitment of

a particular athlete, imposing ineligibility on an athlete,

requiring a school to forfeit a game in which an imper-

missibly contacted athlete played, and fines. See NCAA

Bylaws 19.02.2.1; 19.6.1. The University had been sanc-

tioned three times for major rules violations shortly before

the tenure of Chancellor Aiken and it is undisputed that

Chancellor Aiken was concerned that the plaintiffs’ letter-

writing campaign could violate NCAA recruiting rules.

NCAA rules strictly limit recruiting activities by “institu-

tional staff” which includes “faculty members.” NCAA

Bylaw 13.1.2.3(a). The NCAA rules apply to “general cor-

respondence related to athletics.” NCAA Bylaw 13.4.1. In

order to be certain that the prospective faculty contacts

were subject to NCAA rules, Chancellor Aiken questioned

NCAA and Big Ten Conference officials before sending the

e-mail. In response, NCAA rules expert Denise O’Meally

explained in an e-mail that NCAA regulations apply when

“an institution either identifies and contacts a group of

(...continued)

rules limiting the number and timing of recruiting contacts to

prospective student athletes.

32 Nos. 02-3627, 03-2281 & 03-2951

prospective students based on their athletics ability or con-

tacts prospective students to discuss their athletics partici-

pation.” Before sending the e-mail, Chancellor Aiken also

conferred with various University officials and with in-

house and outside counsel before concluding that the letter-

writing campaign potentially fell within NCAA restrictions.

The plaintiffs’ attorneys later obtained a letter from the

NCAA stating that the letter-writing campaign would not

likely result in sanctions provided that the University

“either was unaware of the correspondence or acted rea-

sonably to preclude it from being sent.” Regardless, the

constitutional inquiry is not whether the school would have

faced sanctions due to the letters. The plaintiffs’ attempt to

question the likelihood of sanctions is an especially unhelp-

ful inquiry in reviewing plaintiffs’ motion for summary

judgment, because all disputed issues of fact must be

resolved in favor of Chancellor Aiken. Instead, the test is

whether the e-mail was reasonably necessary to prevent

anticipated harms. See NTEU, 513 U.S. at 475; Myers

v. Hasara, 226 F.3d 821, 826 (7th Cir. 2000) (balancing

the government interest based on the facts reasonably

known to the government employer). As stated above, the e-

mail served to caution employees that, due to NCAA reg-

ulations, a dialogue was necessary before the contacts with

student athletes could be made. Even under the plaintiffs’

view of the regulations, the University could face sanctions

if it did not act reasonably to preclude from being sent a

communication in violation of the rules. The e-mail was a

reasonable response and is entitled to the deference nor-

mally given to government predictions of harm used to

justify restrictions on employee speech. See Waters, 511

U.S. at 673. The careful investigation and advice sought by

Chancellor Aiken establishes that the e-mail was not

written out of mere conjecture or speculative fear. Cf.

NTEU at 475 (citing Turner Broadcasting System v. FCC,

512 U.S. 622, 664 (1994)).

Nos. 02-3627, 03-2281 & 03-2951 33

Turning to the plaintiffs’ interest, the balancing test,

again, considers the plaintiffs’ interest as a citizen in com-

menting upon matters of public concern. The plaintiffs’

interests, as citizens, are not impacted by the e-mail, only

their interests in commenting as government employees.

Connick, 461 U.S. at 140. As a citizen, the plaintiffs re-

mained free to hold news conferences, write letters to the

editor, deliver public speeches, engage in rallies or protests,

or speak publicly in any other way concerning the Chief

controversy. In fact, the record is replete with examples of

plaintiffs appearing on radio and TV regarding the Chief,

writing newspaper articles, addressing the board of trust-

ees, and participating in anti-Chief marches and demon-

strations. An enormous category of speech remains open to

the plaintiffs, not to mention the availability of anonymous

speech. See McIntyre v. Ohio Elections Commission, 514

U.S. 334, 343 (1995) (extolling the United States’ respected

tradition of anonymity in the advocacy of political causes).

This is simply not a case where the University is

attempting to suppress the plaintiffs’ message, which hap-

pens to be against the Chief. At issue here is the plaintiffs’

demand that they be permitted to use their status as

University professors or employees to magnify the impact

of their speech by directly contacting and discouraging

potential athletes. The court complied by granting to the

plaintiffs an extended right to communicate in their capac-

ity as government employees in a time, place, and manner

of their own choosing. The court does not consider the many

alternative modes of communication left open to the

plaintiffs and whether such alternatives were adequate

when balanced against the University’s concern for vio-

lating NCAA regulations. Myers v. Hasara, 226 F.3d

821, 828 (7th Cir. 2000) (citing Coady v. Steil, 187 F.3d 727,

731 (7th Cir. 1999)). The plaintiffs were already using

numerous venues to communicate their message in ways

less disruptive to the University, but still communicating

34 Nos. 02-3627, 03-2281 & 03-2951

with anyone willing to read or listen. The First Amendment

does not require the University to eliminate the time

requirements of the NCAA regulations and allow University

employees the imprimatur of official positions to communi-

cate to prospective student athletes.

Even if the court were correct that NTEU applied to this

case and that balance tipped in favor of the plaintiffs,

qualified immunity applies to Chancellor Aiken. Assuming

there were a constitutional violation, in order to remove the

cloak of qualified immunity, the plaintiffs have the burden

of proof to show that the law prohibiting Chancellor Aiken’s

conduct was “clearly established.” Gregorich v. Lund, 54

F.3d 410, 413 (7th Cir. 1995). The test for whether the law

was clearly established must be conducted based on the

specific facts of the case, and not at a high level of general-

ity. See Greenberg v. Kmetko, 922 F.2d 382, 383-84 (7th Cir.

1991).

Here, both Pickering/Connick and NTEU involve bal-

ancing tests and, unless there is “very closely analogous”

case law, the balance struck by the official will not remove

qualified immunity. See Gregorich, 54 F.3d at 414. Plaintiffs

have not identified any such closely analogous case law. The

obvious proposition that prior restraints are disfavored is

far too general to satisfy the plaintiffs’ burden. As set forth

above, Chancellor Aiken did not act without caution. He

consulted attorneys and relied upon advice by the NCAA

before sending the e-mail. The court merely relies upon

Jones to support its conclusion that the law was clearly

established. As set forth above, Jones involved an actual

prohibition on speech, unlike the prepublication review at

issue here. Jones banned all speech concerning disciplinary

matters and did not leave open any alternative channels of

communication. In contrast, the e-mail at issue here did not

purport to make discussions regarding the Chief confiden-

tial. The plaintiffs remained free to write letters to the

editor, engage in protests, lead discussion, give public

Nos. 02-3627, 03-2281 & 03-2951 35

speeches, etc. The plaintiffs have not approached meeting

their burden of showing “very closely analogous case law”

and Chancellor Aiken is thus entitled to qualified immu-

nity.

III.

The Pickering/Connick balancing test applies to

Chancellor Aiken’s e-mail because it merely places time

restrictions on a narrow band of communication by

plaintiffs in their capacity as government employees. The e-

mail is not a “wholesale deterrent to a broad category

of expression by a massive number of potential speakers”

and thus the test for applying the heightened scrutiny of

NTEU is not met. Under the Pickering/Connick test, the

government has an important interest in the efficiency of

recruiting; in complying with NCAA time limitations re-

garding contacts with prospective student athletes; and in

protecting prospective student athletes from intimidating,

confusing, or burdensome communication. Moreover, the e-

mail leaves open a wide variety of alternative communica-

tion, of which the plaintiffs have taken advantage. Finally,

Chancellor Aiken is entitled to qualified immunity because

the plaintiffs have failed to meet their burden of showing

very closely analogous case law controlling the outcome of

this case. I therefore DISSENT from the court’s decision and

would vacate the district court’s judgment as to the plain-

tiffs’ request for declaratory relief and damages and grant

Chancellor Aiken’s motion for summary judgment.

36 Nos. 02-3627, 03-2281 & 03-2951

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—6-1-04