Speech First, Inc. v. Timothy L. Killeen

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 19-2807

SPEECH FIRST, INC.,

Plaintiff-Appellant,

v.

THOMAS L. KILLEEN, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Central District of Illinois.

No. 3:19-cv-03142-CSB-EIL — Colin S. Bruce, Judge.

____________________

ARGUED FEBRUARY 27, 2020 — DECIDED JULY 28, 2020

____________________

Before BRENNAN, SCUDDER, and ST. EVE, Circuit Judges.

ST. EVE, Circuit Judge. Colleges and universities unques-

tionably benefit from the free flow of ideas, debate, and delib-

eration on campus. These institutions should strive to foster

an environment where critical thought, and sometimes strong

disagreement, can flourish. Indeed, “[f]reedom of expression

and academic freedom are at the very core of the mission of

colleges and universities, and limiting the expression of ideas

would undermine the very learning environment that is

2 No. 19-2807

central to higher education.” Erwin Chemerinsky & Howard

Gillman, Free Speech on Campus x (Yale Univ. Press 2017).

Speech First—a national advocacy organization dedicated

to promoting the exercise of free speech on college cam-

puses—alleges that three distinct policies at the University of

Illinois at Urbana-Champaign (“the University”) threaten

these ideals and impermissibly chill the speech of student

members of its organization. It seeks a preliminary injunction

to put a halt to these policies.

When a party seeks a preliminary injunction before the

district court, the burden rests on that party to demonstrate

that it has standing to pursue its claims. Speech First failed to

meet that burden for two of the policies it challenges; namely,

it failed to demonstrate that its members face a credible fear

that they will face discipline on the basis of their speech as a

result of those two policies. And for its challenge to the third

policy, that claim is moot. The district court therefore cor-

rectly denied the motion for a preliminary injunction, and we

affirm.

I. Background

Speech First sued 29 administrators at the University on

behalf of four anonymous students. These students claim that

they wish to express what they describe as “political, social,

and policy views that are unpopular on campus.” Speech

First’s complaint lists examples of such viewpoints in general

terms: opposition to abortion, support for President Trump,

belief in traditional marriage, support for strong immigration

policies, support for the “deradicalization of Islam,” support

for First Amendment protection of “hate speech,” opposition

to gun control, and support for LGBT rights.

No. 19-2807 3

Speech First alleges that three University policies—the re-

sponsive action of the Bias Assessment and Response Team

and the Bias Incident Protocol to reports of “bias-motivated

incidents” on campus, the imposition of No Contact Direc-

tives, and the prior approval rule—chill their student mem-

bers’ speech, force these students to engage in self-censorship,

and deter them from speaking openly about issues of public

concern.

A. Bias Assessment Response Team and Bias Incident

Protocol

Speech First challenges the actions of the University’s Bias

Assessment and Response Team (“BART”). BART “collects

and responds to reports of bias-motivated incidents that occur

within the University of Illinois at Urbana-Champaign com-

munity.” In turn, BART defines “bias-motivated incidents” as

“actions or expressions that are motivated, at least in part, by

prejudice against or hostility toward a person (or group) be-

cause of the person’s (or group’s) actual or perceived age, dis-

ability/ability status, ethnicity, gender, gender identity/ex-

pression, national origin, race, religion/spirituality, sexual ori-

entation, socioeconomic class, etc.” In addition, BART

“[p]rovides opportunities for educational conversation and

dialogue” and “[s]upports those impacted by bias.”

BART is administratively housed within the Office for Stu-

dent Conflict Resolution (“OSCR”). In addition to BART,

OSCR houses two other functions: (a) voluntary alternative

conflict resolution services and (b) enforcement of the Student

Code. Members of BART come from various departments

across the University: OSCR; the University Housing Office;

the Office of Student Affairs; the Office of Diversity, Equity,

and Inclusion; the Student Assistance Center; the student

4 No. 19-2807

union; and the University Police Department, which supplies

a law enforcement liaison to BART.

Any member of the University community can report to

BART by sending an email to the BART-specific email address

or through a webform on the BART website. The webform

does not require the reporter to identify himself, and the ma-

jority of BART reporters remain anonymous. One of the

BART Co-Chairs enters the report into an internal database.

A Co-Chair will promptly address any incidents that require

a simple response. This could include, for example, a report

of a swastika drawn on a bathroom door, where a Co-Chair

will call the facilities department to erase it. For those inci-

dents that do not allow for as straightforward of a resolution,

BART members discuss reports at a bi-weekly meeting and

determine whether to reach out to the involved students, if

they are identified, to invite them to participate in a voluntary

conversation. BART also devises a response plan, which could

include “[e]ducational conversations,” “[m]ediation, facili-

tated dialogue,” “[e]ducational referrals,” “[r]esolution

agreements,” or “[r]eferrals to other offices and/or pro-

grams.”

If the reporting party is identified and wishes to meet, a

BART staff member will discuss the report with the student

and offer support. If the reporting party identifies the of-

fender, a BART staff member will contact that person via

email to schedule a voluntary meeting. Notably, the majority

of students who BART contacts either do not respond or de-

cline to meet. Students who decline suffer no consequences. If

a student agrees to meet, BART staff explains to the student

that her conduct drew attention and gives the student an op-

portunity to reflect upon her behavior and its impact on other

No. 19-2807 5

students. BART cannot require students to change their be-

havior and does not have authority to issue sanctions if they

decline to do so.

Justin Brown, Director of OSCR and a former Chair of

BART, states in a declaration that BART keeps private all in-

teractions with students, and interactions do not appear in

students’ academic or disciplinary records. BART does, how-

ever, publish an annual report of incidents with all personally

identifiable information removed from its data and descrip-

tions. Examples of these descriptions, in their complete form,

include:

• “The pillars outside of Foellinger Auditorium were

chalked with the phrases, ‘Women are Worthless’ and

‘Go White Privilege.’ Facilities removed the chalking

within an hour of it being reported.”

• “A student reported that another student said to him,

‘I voted for Trump because I want to deport you guys.

Enjoy the last few months in America.’ A member of

the team met with both of the students involved.”

• “There were multiple reports (41) that an RSO posted

on Facebook that they were going to hold an ‘Affirma-

tive Action Bake Sale’ where they would charge differ-

ent prices based on race and ethnicity. A member of the

team met with the leadership of the RSO. All of the

people that reported were contacted, and many of

them met with a member of the team.”

January Boten, Assistant Dean of Students at the Univer-

sity and a Co-Chair of BART, asserts in an affidavit that “[a]ny

contact a student has with BART—whether the student re-

porting an incident or the student who is alleged to have en-

gaged in the reported behavior—is entirely voluntary.”

6 No. 19-2807

Expressing the views Speech First describes in its complaint

does not violate the University’s Student Code. Thus, Boten

explains, students “could not face discipline at the University

solely as a result of expressing those opinions,” although

“some behavior motivated by bias may also violate the Stu-

dent Code.” (emphasis in original). Such behavior could in-

clude physical violence, stalking, true threats, and sexual har-

assment. BART has no independent disciplinary authority,

and therefore the student disciplinary process, rather than

BART, addresses this sort of behavior. Boten represents that

reports made to BART “are not ‘referred’ from BART to the

University Police, nor do the police ever investigate an inci-

dent reported to BART unless that incident independently

was reported to the Police for law enforcement reasons.” Re-

latedly, there is no evidence that the liaison to BART from the

University Police has any law enforcement function in her ca-

pacity as a BART member.

Speech First National President Nicole Neily submitted a

declaration that states she is “aware of how BART operates.”

Neily has no present connection to the University: she is not

a current student, nor is she a member of the faculty or staff.

Because she lacks first-hand information about the Univer-

sity’s current policies and procedures, she relies on what she

has learned through her discussions “with Speech First mem-

bers and other students who attend and have attended the

University”—Students A, B, C, and D. Neily explains her gen-

eral understanding of BART’s procedures, based on these

conversations:

When a BART official contacts the offender, the official

tells the student that the BART has received a bias re-

port about the student and that the BART needs to

No. 19-2807 7

speak with the student to discuss the allegations. The

BART official will not identify the person who has ac-

cused the student of “bias” or inform the student of

any rights he or she may have.

In addition, Neily asserts that, if BART determines the iden-

tity of the student who committed the bias-motivated inci-

dent, “it will record the details of the incident on the student’s

permanent record” and “will make this information available

to others outside of the BART.” Neily reports that one stu-

dent’s advisor told him “that he could see from the student’s

files that the student had met with someone from the BART.”

Neily provides no other detail about BART and its operations.

In addition to BART, the University maintains a similar

but separate system—called the University Housing Bias In-

cident Protocol (“BIP”)—to address bias-motivated incidents

committed within University housing. Like the BART pro-

cess, residents can report an incident to a centralized BIP

email address, through a web form, or to a University Hous-

ing staff member who lives in their building. Approximately

half of the reports to BIP are anonymous, and more than half

do not provide the name of the alleged offender. Also, like

BART, a committee of University staff meets to determine

what course of action is appropriate in response to a report,

and whether to invite identified students to participate in a

voluntary conversation with a BIP staff member. If, after a

meeting, a student wishes to persist with his or her conduct,

the staff member cannot sanction the student.

Alma Sealine, the Executive Director of University Hous-

ing, asserts in her affidavit that BIP “is entirely voluntary,

both for the student making a bias incident report and for the

student (if identified) whose comments or actions have

8 No. 19-2807

prompted the report.” “[T]here are no sanctions, punish-

ments, or discipline of any kind associated with a reported

incident.” When a student breaches his or her housing con-

tract or violates University policy through, for example, acts

of theft, vandalism, possession of weapons, or hosting unap-

proved overnight guests, students must endure a separate

disciplinary process. Expression of the views Speech First de-

scribes in its complaint would not contravene housing con-

tracts nor violate any University policies.

Speech First did not submit any evidence to the district

court contradicting Sealine’s affidavit. In fact, Neily’s declara-

tion omits any mention of BIP.

B. No Contact Directives

Pursuant to the University’s Student Disciplinary Proce-

dures, University disciplinary officers may direct an individ-

ual subject to student discipline to have no contact with one

or more other persons through what the University calls “No

Contact Directives” (“NCDs”). Students subject to NCDs may

not engage “in oral, written, or third party communication”

with other identified parties and may not partake in certain

“deliberate nonverbal acts intended to provoke or intimidate

a protected party.” Although NCDs do not require students

to maintain a specific physical distance from one another, the

University advises the parties to leave the vicinity if the other

party appears. NCDs do not, on their own, constitute a disci-

plinary finding against students and are not part of the stu-

dents’ official disciplinary records. Although an NCD prohib-

its a student from contacting another student, it does not pro-

hibit the student from talking or writing about the other, ei-

ther privately or publicly. The Student Disciplinary

No. 19-2807 9

Procedures recommend dismissal from the University for stu-

dents who violate NCDs.

Section 4.06(a) of the Student Disciplinary Procedures out-

lines the authority of the University to impose NCDs, stating

that “University disciplinary officers are among those respon-

sible for the enforcement of student behavioral standards and,

when possible, the prevention of violations of the Student

Code.” Section 4.06(d) outlines the procedure for imposing

NCDs: “If, based upon a report received or a direct request

from a member of the university community, a disciplinary

officer believes that a No Contact Directive is warranted, the

disciplinary officer will notify all recipients in writing, typi-

cally by email.”

Brown describes the common reasons for the imposition

of NCDs:

[O]f the 103 No Contact Directives issued in the 2018-

2019 academic year, approximately 62% were imposed

during the pendency of an investigation into allega-

tions of a violation of the Student Code. In addition,

approximately 28% were imposed as a result of infor-

mal Title IX complaints that alleged sexual misconduct

but requested no investigation be conducted. During

the same year, only 11 cases—approximately 11% of

cases—involved no pending investigation or an infor-

mal Title IX complaint. These directives were issued

when a severe, prolonged, and/or escalating conflict

between students suggested that a violation of the Stu-

dent Code, and in some cases physical violence, was

likely in the near future.

10 No. 19-2807

Similarly, Rony Die, Associate Director of OSCR, represents

that the University only imposes NCDs in response to viola-

tions of the Student Code or to prevent potential violations.

Both Brown and Die assert that no students have ever been

subject to NCDs for expression alone.

To rebut the University’s contentions, Speech First points

to an NCD imposed between students Tariq Kahn and An-

drew Minik after Minik published an article about Khan at-

tacking two students at an “anti-Trump” rally. Minik wrote

an email to Die, who issued the NCD, to confirm his under-

standing of the limitations the NCD imposed. He acknowl-

edged that “the no contact order [did] not prevent [him] from

writing journalistic stories related to Khan,” but that Die

merely “suggest[ed] that [he] not write about him” for the sit-

uation to improve. In this email, Minik also recognized that

the NCD “is not a direct disciplinary charge.” The district

court, which is also presiding over a separate lawsuit involv-

ing the Minik–Khan interactions, summarized: “Die de-

scribed the history of escalation between Minik and Khan, in-

cluding Khan receiving death threats which he believed were

caused by Minik, and Khan’s anger towards Minik over the

same, and Die stated that the No Contact Directive would not

have been issued absent that history.”

C. Prior Approval Rule

Before this lawsuit was filed, Student Code § 2-407 prohib-

ited students from “post[ing] and distribut[ing] leaflets,

handbills, and other types of materials” about candidates for

non-campus elections without “prior approval.” The Univer-

sity Student Disciplinary Procedures explain that a student

who violates the Student Code faces disciplinary action, in-

cluding reprimand, censure, probation, suspension, and

No. 19-2807 11

dismissal from the University. There is no evidence in the rec-

ord that the University ever enforced the prior approval rule.

The Student Code was amended to repeal the rule shortly

after this lawsuit was initiated. To eliminate the provision, the

University followed the steps set forth in the University’s

published “Procedure for Amending the Student Code.” On

July 15, 2019, the Conference on Conduct Governance—a

standing committee of the Urbana-Champaign Senate that in-

cludes faculty members, administrators, and students—voted

to enact an amendment to the Student Code abolishing the

prior approval rule. The Chancellor approved this amend-

ment on July 18—four days before the University filed its op-

position to Speech First’s preliminary injunction motion—

and it went into effect immediately. The current version of the

Student Code reflects this amendment. Through the sworn

declaration of Associate Dean of Students Rhonda Kirts, the

University represented both to the district court and to this

Court that it has no intention of restoring the eliminated pro-

vision.

D. Procedural History

Speech First brought this lawsuit against University ad-

ministrators in their official capacities, challenging the three

aforementioned policies and seeking declaratory and injunc-

tive relief. Speech First quickly moved for a preliminary in-

junction to enjoin the University from enforcing the prior ap-

proval requirement; using the BART and BIP processes to “in-

vestigate, log, threaten, or punish students (including infor-

mal punishments) for bias-motivated incidents”; and issuing

NCDs “without clear, objective procedures ensuring the di-

rectives are issued consistent with the First Amendment.” In

support of its motion, Speech First offered a three-page

12 No. 19-2807

declaration from its national president, Nicole Neily, who

communicates second- (and sometimes third-) hand infor-

mation about BART’s operations that she purportedly re-

ceived from current and former students. Speech First did not

specifically identify any student member who provided such

information or submit declarations from any student mem-

ber, even pseudonymously. As a result, no student at the Uni-

versity explained to the district court any specific speech they

wished to engage in, nor did any student explain how the

challenged policies have discouraged them from expressing

their views. The University, by contrast, contradicted Neily’s

generalized affidavit with detailed declarations, supported by

twenty-five exhibits, from five University administrators, all

of whom are intimately involved with BART, BIP, or student

discipline. Neither party presented live testimony.

In ruling on the preliminary injunction motion, the district

court described the declaration Speech First submitted from

Neily as “a conclusory statement based on its national associ-

ation’s president’s ‘familiarity with’ anonymous students,” to

the effect that the “Students’ expressing their views on (very

generally-described) topics could result in their being re-

ported, investigated, and punished by BART for engaging in

a bias-motivated incident.” The court found “more informa-

tive the detailed statements about BART from University staff

that are personally involved with BART, consistently describ-

ing how BART operates.”

The district court denied the preliminary injunction mo-

tion. The court held, first, that Speech First’s claim related to

the prior approval requirement was moot, and second, that

Speech First failed to demonstrate standing to challenge the

BART and BIP processes and the imposition of NCDs.

No. 19-2807 13

Specifically, regarding standing, the district court found that

Speech First did not show that its members face a credible

threat of enforcement or that the policies have an objective

chilling effect on their speech. Speech First appealed.

II. Discussion

To obtain a preliminary injunction, a plaintiff must show

that: (1) without this relief, it will suffer “irreparable harm”;

(2) “traditional legal remedies would be inadequate”; and

(3) it has some likelihood of prevailing on the merits of its

claims. Courthouse News Serv. v. Brown, 908 F.3d 1063, 1068

(7th Cir. 2018). If a plaintiff makes such a showing, the court

then must weigh the harm the denial of the preliminary in-

junction would cause the plaintiff against the harm to the de-

fendant if the court were to grant it. Id. (citing Ty, Inc. v. Jones

Grp., Inc., 237 F.3d 891, 895 (7th Cir. 2001)). If the plaintiff is

likely to win on the merits, the balance of harms need not

weigh as heavily in his favor. Girl Scouts of Manitou Council,

Inc. v. Girl Scouts of the U.S. of Am., Inc., 549 F.3d 1079, 1086

(7th Cir. 2008) (quoting Roland Mach. Co. v. Dresser Indus., Inc.,

749 F.2d 380, 387 (7th Cir. 1984)). This balancing process also

considers the public interest, or the effects the preliminary in-

junction—and its denial—would have on nonparties. Id.

The party seeking a preliminary injunction bears the bur-

den of showing that it is warranted. Courthouse News Serv., 908

F.3d at 1068 (citing Mazurek v. Armstrong, 520 U.S. 968, 972

(1997) (per curiam)). “We ‘will not reverse a district court’s

grant or denial of a preliminary injunction absent a clear

abuse of discretion by the district court.’” Joseph v. Sasafrasnet,

LLC, 734 F.3d 745, 747 (7th Cir. 2013) (quoting Moody v. Amoco

Oil. Co., 734 F.2d 1200, 1217 (7th Cir 1984)). We review the dis-

trict court’s legal conclusions de novo and findings of fact for

14 No. 19-2807

clear error. Valencia v. City of Springfield, 883 F.3d 959, 966 (7th

Cir. 2018). Absent such errors, we afford a district court’s de-

cision “great deference.” Id.

A. Standing

Speech First challenges the district court’s ruling that it

failed to demonstrate standing to seek a preliminary injunc-

tion against the University’s BART, BIP, and NCD policies.

Speech First’s burden to demonstrate standing in the context

of a preliminary injunction motion is “at least as great as the

burden of resisting a summary judgment motion.” Lujan v.

Nat’l Wildlife Fed’n, 497 U.S. 871, 907 n.8 (1990). Thus, Speech

First must “‘set forth’ by affidavit or other evidence ‘specific

facts’,” rather than “general factual allegations of injury.” Six

Star Holdings, LLC v. City of Milwaukee, 821 F.3d 795, 801–02

(7th Cir. 2016).

To establish standing under Article III of the Constitution,

a plaintiff must show (1) an “injury in fact,” (2) that the chal-

lenged conduct caused the injury, and (3) some likelihood

that a decision in his favor will remedy the injury. Susan B.

Anthony List v. Driehaus (“SBA List”), 573 U.S. 149, 157–58

(2014). An association has standing to sue on behalf of its

members when: (a) its members would have standing to sue

on their own; (b) the interests the association “seeks to protect

are germane to the organization’s purpose”; and (c) “neither

the claim asserted nor the relief requested requires the partic-

ipation of individual members.” Hunt v. Washington State Ap-

ple Advert. Com’n, 432 U.S. 333, 343 (1977). No party disputes

that, if its members were to have standing, Speech First would

have associational standing. Rather, Speech First disputes the

district court’s conclusion that it could not show an injury in

fact.

No. 19-2807 15

For an injury to satisfy Article III standing requirements,

it must be “concrete and particularized” and “actual or immi-

nent, not conjectural or hypothetical.” SBA List, 573 U.S. at 158

(quoting Lujan v. Def. of Wildlife, 504 U.S. 555, 560 (1992)).

Where the plaintiff brings a facial challenge under the First

Amendment, a prior enforcement action is not required. Id. at

158–59. In the absence of an enforcement action, though,

plaintiffs must make one of two showings to establish an in-

jury in fact. First, a plaintiff may show an intention to engage

in a course of conduct arguably affected by a policy, and that

he faces a credible threat the policy will be enforced against

him when he does. Am. Civil Liberties Union of Ill. v. Alvarez,

679 F.3d 583, 590–91 (7th Cir. 2012) (quoting Babbitt v. United

Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)). Second, a

plaintiff may show a chilling effect on his speech that is objec-

tively reasonable, and that he self-censors as a result. Bell v.

Keating, 697 F.3d 445, 454 (7th Cir. 2012) (citing Laird v. Tatum,

408 U.S. 1, 13–14 (1972) (“[A] plaintiff’s notional or subjective

fear of chilling is insufficient to sustain a court’s jurisdiction

under Article III.”)). For either that credible threat of enforce-

ment or chilling effect to be “‘particularized,’ it ‘must affect

the plaintiff in a personal and individual way.’” Spokeo, Inc. v.

Robins, 136 S.Ct. 1540, 1548 (2016) (quoting Lujan, 504 U.S. at

560); see also Bell, 697 F.3d at 454 (“The plaintiff must substan-

tiate a concrete and particularized chilling effect on his pro-

tected speech or expressive conduct to pursue prospective re-

lief.”).1

1 We note these two showings have some degree of overlap. As the

Fourth Circuit has recognized, “Either way, a credible threat of enforce-

ment is critical; without one, a putative plaintiff can establish neither a

realistic threat of legal sanction if he engages in the speech in question, nor

16 No. 19-2807

It is uncontested that the University has not investigated

or punished any of the students who are members of Speech

First pursuant to any of the challenged University policies.

Rather, Speech First asserts that the University’s policies chill

the students’ speech because the students fear the University

will investigate or punish them under these policies.

1. BART and BIP

We first turn to whether Speech First has established the

injury in fact requirement concerning its claims against BART

and BIP, namely, whether it has demonstrated that these pol-

icies pose a credible threat of enforcement to any student or

whether any student has faced an objectively reasonable

chilling effect on his or her speech. Important for our analysis

is the nature of our review: we must leave the factual findings

of the district court undisturbed unless “on the entire evi-

dence” we are “left with the definite and firm conviction that

a mistake has been committed.” Girl Scouts, 549 F.3d at 1086

(quoting Anderson v. Bessemer City, N.C., 470 U.S. 564, 573

an objectively good reason for refraining from speaking and ‘self-censor-

ing’ instead.” Abbott v. Pastides, 900 F.3d 160, 176 (4th Cir. 2018). Indeed,

“[w]hen plaintiffs ‘do not claim that they have ever been threatened with

prosecution, that a prosecution is likely, or even that a prosecution is re-

motely possible,’ they do not allege a dispute susceptible to resolution by

a federal court.” Schirmer v. Nagode, 621 F.3d 581, 586 (7th Cir. 2010) (quot-

ing Babbitt, 442 U.S. at 298–99). Nevertheless, we search for both showings.

See, e.g., Ctr. for Individual Freedom v. Madigan, 697 F.3d 464, 473–74 (7th

Cir. 2012) (recognizing that the plaintiff may show only that she faces “a

realistic danger of sustaining a direct injury as a result of the statute’s op-

eration of enforcement” and that “the chilling of protected speech may

thus alone qualify” as an injury in fact ).

No. 19-2807 17

(1985)). The district court made several factual findings about

BART in particular, and Speech First has not demonstrated

that any are clearly erroneous and did not submit evidence

disputing many of them. Furthermore, the Neily declaration

does not even mention BIP. Because Speech First did not sub-

mit any evidence beyond the Neily declaration, it has not dis-

puted or raised any factual challenge to the BIP information

and therefore the district court did not commit any clear error

in its findings regarding that policy.

First, the district court found that “[t]he disciplinary pro-

cesses do not apply to students expressing the views the Stu-

dents wish to express or any other opinions. Bias-motivated

speech alone is not a Student Code violation.” Thus, the dis-

trict court concluded that “being reported to BART or BIP re-

sults in essentially no consequences.” Speech First does not

dispute these findings, which undermine its contention that

its members face a credible threat of enforcement.

Second, the district court found that “[t]he Students have

not described any statements they wish to make with any par-

ticularity, so it is unclear whether they would even be likely

to be reported to BART or BIP.” The Fourth Circuit’s decision

in Abbott v. Pastides, 900 F.3d 160 (4th Cir. 2018), is instructive

here. In that case, students received official letters instructing

them to attend a mandatory meeting with University of South

Carolina officials after the students hosted a “Free Speech”

event. Id. at 163. The student brought a facial challenge to the

university’s harassment policy, arguing that it was unconsti-

tutionally vague and overbroad. Id. The Fourth Circuit con-

cluded that, because plaintiffs failed to identify any speech

event they planned or wished to sponsor in the future, they

had not demonstrated that that the defendants “deterred

18 No. 19-2807

some specific intended act of expression protected by the First

Amendment.” Id. at 171. Similarly, here, Speech First has

failed to identify in the record specific statements any stu-

dents wish to make that the University’s policies have chilled.

See Bell, 697 F.3d at 454 (requiring a showing of a particular-

ized chilling effect).

Third, the district court found that “[c]onversations with

BART are optional. Most students contacted by BART do not

respond at all, or decline the offer of a meeting, and no conse-

quences occur if a student declines to meet with BART.”

Speech First insists “[n]o student would see these requests

from BART as voluntary.” Its only support for this bold asser-

tion is Neily’s discredited declaration that BART officials tell

students that BART needs to speak with them. The district

court’s finding of fact is not clearly erroneous, especially con-

sidering that Speech First offers only a broad statement from

someone lacking first-hand experience with BART who in

turn relies solely on information from unidentified students.

If students’ perception of reality on campus is different from

the picture the University describes, Speech First has put forth

no evidence—other than Neily’s general, conclusory conten-

tions—to demonstrate that is so: nothing in the record shows

that any individual student fears potential consequences re-

sulting from an invitation to meet with BART, or conse-

quences from declining that invitation, and has self-censored

because of those fears. See Laird, 408 U.S. at 11 (plaintiffs must

show a chilling effect occurred because they are “either pres-

ently or prospectively subject to” a challenged policy). Fur-

thermore, the fact that a majority of students actually decline

a meeting supports the conclusion that students do not feel

compelled to meet.

No. 19-2807 19

This same factual finding—that students view the conver-

sations with BART as optional—distinguishes this case from

Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963). Speech First

cites this case for the proposition that “[c]ourts do not ignore

First Amendment problems simply because state defendants

promise that their interactions are ‘voluntary.’” In Bantam, the

Rhode Island Commission to Encourage Morality in Youth

sent dozens of notices to a publication distributor stating that

certain publications were inappropriate for sales to youth. 372

U.S. at 59–61. The Supreme Court characterized the Commis-

sion’s notices “virtually as orders” that were “reasonably un-

derstood to be such by the distributor,” with “invariabl[e] fol-

low[] up by police visitations.” Id. at 68. The notices, the Court

determined, were really “thinly veiled threats.” Id. Here, the

district court found no such threats; rather, the court con-

cluded invitations to meet with BART staff are “voluntary”

and result in “essentially no consequences.”

Abbott provides useful guidance on this point, as well.

There, the Fourth Circuit held that the prospect of facing a

mandatory meeting and subsequent investigation was insuffi-

cient to make a showing of standing. The court even acknowl-

edged, “[W]e do not doubt that a college student reasonably

might be alarmed and thus deterred by an official letter from

a University authority … raising the prospect of an investiga-

tion and ultimate recommendation to the University Provost

and President, directing his attendance at a meeting, and pro-

hibiting him from discussing the matter with others.” 900 F.3d

at 171. The court nevertheless concluded,

[A] threatened administrative inquiry will not be

treated as an ongoing First Amendment inquiry suffi-

cient to confer standing unless the administrative

20 No. 19-2807

process itself imposes some significant burden. …

Even an objectively reasonable “threat” that the plain-

tiffs might someday have to meet briefly with a Uni-

versity official in a non-adversarial format, to provide

their own version of events in response to student com-

plaints, cannot be characterized as the equivalent of a

credible threat of “enforcement” or as the kind of “ex-

traordinarily intrusive” process that might make self-

censorship an objectively reasonable response.

Id. at 179. It follows that if a mandatory meeting does not

demonstrate a credible threat of enforcement, neither does an

invitation to an optional one.

Fourth, the district court found that “[w]hile some BART

staff are drawn from departments with disciplinary or law en-

forcement functions, BART has no such functions. … BART

has no authority to impose sanctions, and BART does not re-

quire any student to change his behavior.” Speech First does

not contest the district court’s finding that BART itself does

not have disciplinary authority. Instead, Speech First points

to the possibility that BART may refer potential Student Code

violations to OSCR and potential legal violations to the Uni-

versity Police. But again, as the district court found, “[b]ias-

motivated speech alone is not a Student Code violation,” and

thus would not be the sole basis for a referral. BART does not

determine whether punishment is warranted or impose such

punishment; rather, that determination is left to the OSCR or

the Police.

As Speech First does not dispute that BART lacks discipli-

nary authority, it cites Backpage.com, LLC v. Dart, 807 F.3d 229

(7th Cir. 2015), for the proposition that the University can chill

speech without threatening an investigation or prosecution,

No. 19-2807 21

and even without “authority to take any official action.” Id. at

236. But Backpage is readily distinguishable. In that case, Cook

County Sheriff Thomas J. Dart sent a letter on his official let-

terhead to credit card companies, stating, “As the Sheriff of

Cook County, a father and a caring citizen, I write to request

that your institution immediately cease and desist from al-

lowing your credit cards to be used to place ads on websites

like Backpage.com.” Id. at 231. He also wrote that the compa-

nies’ involvement with Backpage.com had “become increas-

ingly indefensible,” and that “[f]inancial institutions … have

the legal duty to file ‘Suspicious Activity Reports’ to authori-

ties in cases of human trafficking and sexual exploitation of

minors.” Id. at 232. He included a citation to the federal

money-laundering statute, 18 U.S.C. § 1956, insinuating that

the credit card companies could be prosecuted for their fail-

ure to comply. Id. The letter instructed the companies to pro-

vide contact information for an individual who the Sheriff

could “work with on this issue.” Id. A strategy memo by a

member of the Sheriff’s staff also proposed approaching the

credit card companies with “threats in the form of ‘remind-

ers’” about “their potential susceptibility to ‘money launder-

ing prosecutions … and/or hefty fines.’” Id. Two days after

sending the letter, the Sheriff’s Office issued a press release

captioned “Sheriff Dart’s Demand to Defund Sex Trafficking

Compels Visa and MasterCard to Sever Ties with Back-

page.com.” Id. “The causality [was] obvious.” Id. at 233. We

concluded “the letter was not merely an expression of Sheriff

Dart’s opinion. It was designed to compel the credit card com-

panies to act by inserting Dart into the discussion.” Id. at 232.

The University’s invitation to a voluntary meeting falls

well short of the level of coercion the Sheriff invoked in Back-

page. Although the Sheriff did not threaten the companies

22 No. 19-2807

with an investigation or prosecution, a letter on official letter-

head demanding action, condemning their activities, and re-

minding them of their potential liability is a far cry from a vol-

untary invitation to a meeting. Comparing the impact of the

Sheriff’s letter to that of BART’s outreach demonstrates this is

true: whereas most students do not respond to BART’s re-

quests, Visa and MasterCard immediately ended their rela-

tionship with Backpage. “[T]he fact that a public-official de-

fendant lacks direct regulatory or decisionmaking authority

… is not necessarily dispositive[.]” Okwedy v. Molinari, 333

F.3d 339, 344 (2d Cir. 2003) (per curiam). “What matters is the

distinction between attempts to convince and attempts to co-

erce.” Id. Whereas Sheriff Dart’s letter was an “attempt to co-

erce,” the University’s actions are, at worst, an “attempt to

convince.” Particularly when the majority of students BART

contacts decline a meeting, Speech First’s speculation that

BART’s outreach carries an implicit threat of consequences

lacks merit.

On appeal, Speech First highlights two out of the dozens

of bias-motivated incidents and resulting responses in the rec-

ord to demonstrate that, contrary to the University’s asser-

tions, BART refers some incidents to University Police. These

two incidents include:

• “Team members participated in reporting [an offen-

sive] page to Facebook and consulted with police, who

were unable to identify those responsible for the page.”

• “A staff member from the Counseling Center received

emails that were sexually explicit and targeting Asian

women. The staff member was given information on

resources and information about the person who sent

the emails was given to police.”

No. 19-2807 23

As a preliminary matter, Speech First failed to raise these in-

cidents before the district court. “It is the parties’ responsibil-

ity to allege facts and ‘indicate their relevance under the cor-

rect legal standard.’” Econ. Folding Box Corp. v. Anchor Frozen

Foods Corp., 515 F.3d 718, 721 (7th Cir. 2008) (quoting APS

Sports Collectibles, Inc. v. Sports Time, Inc., 299 F.3d 624, 631 (7th

Cir. 2002)). Speech First has therefore waived this argument.

But even if Speech First had raised these facts before the

district court, they do not demonstrate that Speech First has

standing to challenge BART. First, Speech First did not pre-

sent evidence to the district court that BART would refer a

student to University Police on the basis of speech independ-

ent of a violation of the Student Code or because a student

declined to respond to BART outreach. BART, like any mem-

ber of the University community, could report a potential Stu-

dent Code violation to OSCR or the Police without infringing

on any student’s right to free speech. And if BART does make

a referral to University Police in appropriate circumstances,

Speech First has not demonstrated that BART has any power

to punish: that determination is left to OSCR or the Police. Ac-

cordingly, Speech First has not put any evidence in the record

to demonstrate that the law enforcement liaison to BART

from the University Police Department was involved in either

of the purported referrals or in interactions with any of the

individuals who made or are identified in complaints. The

mere possibility of a referral does not demonstrate standing.

We acknowledge some practicalities influencing this con-

clusion. Consider, for example, if BART were to learn of a vi-

olation of the law, or of a potential violation, such as one that

might put a student in imminent danger. The fact that this

knowledge came through a BART webform or through an

24 No. 19-2807

email to the BART email address does not prevent BART from

sharing this information with law enforcement. The ability of

BART to inform the relevant authorities of a violation, when

there would be no threat of sanction on the basis of speech

absent that violation, does not alone result in a First Amend-

ment harm.

Speech First also cites the commonalities between this case

and the Sixth Circuit’s recent decision in Speech First, Inc. v.

Schlissel, 939 F.3d 756 (6th Cir. 2019), where Speech First chal-

lenged the University of Michigan’s equivalent of BART—

what the court called the Response Team—along with other

policies. In that case, the Sixth Circuit, emphasizing the Re-

sponse Team’s referral power, reversed the district court’s de-

nial of a preliminary injunction on standing grounds. Id. at

765. The court noted that although the referral itself does not

punish speech, it “subjects students to processes which could

lead to those punishments” and thus to “consequences that

[the student] otherwise would not face.” Id. The court contin-

ued, “a student who knows that reported conduct might be

referred to police or OSCR could understand the invitation to

carry the threat: ‘meet or we will refer your case.’” Id. Here,

though, Speech First has put forth no evidence that BART will

refer students for a failure to respond to their outreach or ac-

cept a meeting. Nor did Speech First present evidence that

students at the University of Illinois interpret the invitation to

meet with BART as an implicit threat. Indeed, the record sup-

ports a contrary conclusion—the fact that the majority of stu-

dents decline to meet signals that students do not fear conse-

quences from their refusal to participate.

Lastly, the district court found that “BART interactions

with students are private, not recorded in academic or

No. 19-2807 25

disciplinary records, and not disclosed outside of OSCR with-

out permission.” Neily’s declaration purports to contradict

this point, stating that BART lists details of reported incidents

on students’ permanent records and makes this information

publicly available. Neily’s declaration also cites a third-hand

statement from an unknown student’s advisor, where the ad-

visor told the student that he could see in the student’s file

that the student had met with BART. The district court dis-

credited these assertions for good reason: the annual reports

BART issues to the public—the only examples of BART re-

porting in the record—are completely anonymized with es-

sentially no way to track down the identity of any offender.

Furthermore, Speech First has not provided any evidence—

through Doe affidavits or otherwise—that any individual stu-

dent fears the possible publication of student speech in these

annual reports or that potential publication led to any self-

censorship.

Our analysis of Speech First’s evidentiary showing does

not, at this stage, speak to its success on the merits of its First

Amendment claims, but to whether it has met its burden to

demonstrate that any of its members experience an actual,

concrete, and particularized injury as a result of the Univer-

sity’s policies for the purpose of standing to pursue a prelim-

inary injunction. Whereas Speech First produced a three-

page, bareboned declaration from someone lacking first-hand

knowledge of BART and how it operates on campus, the Uni-

versity put forth multiple, detailed affidavits, consistently de-

scribing BART’s operations. 2 Speech First’s sparse submission

2 We highlight the number of University-produced affidavits, and the

short-length of Neily’s, to make more tangible the sharp contrast in the

level of detail and supporting facts between the two submissions. We do

26 No. 19-2807

failed to demonstrate that any of its members face a credible

threat of any enforcement on the basis of their speech or that

BART’s or BIP’s responses to reports of bias-motivated inci-

dents have an objective chilling effect. The district court there-

fore correctly determined that Speech First failed to demon-

strate standing to challenge BART’s and BIP’s processes.

2. NCDs

Speech First similarly fails to demonstrate standing to seek

a preliminary injunction against the University’s policy of is-

suing NCDs. Speech First argues that its student members

self-censor because they fear the University will issue NCDs

in response to their speech. It contends that § 4.06(d) of the

Student Disciplinary Procedures authorizes disciplinary offic-

ers to issue NCDs whenever they believe an NCD is “war-

ranted,” meaning there are no limits on when the University

can issue an NCD. But § 4.06(a) explains that the disciplinary

officers’ authority stems from their responsibility for enforc-

ing the Student Code, and thus cabins their ability to issue

NCDs. Brown’s and Die’s declarations support this reading:

both state that the University can only impose NCDs to en-

force the Student Code and prevent violations of it, not in re-

sponse to student speech.

Speech First provides one example it contends counters

this conclusion—the Minik–Khan incident. But this episode

does not bolster its case. The district court concluded that the

University issued the NCD not “just because Minik wrote

about Khan online,” but because of “an extensive history of

not suggest that the number and length alone has any bearing on or sig-

nificance to our analysis of their contents.

No. 19-2807 27

hostile and escalating interactions.” Minik’s own admissions

in his email to Die—that the NCD did not prevent him from

writing journalistic stories pertaining to Khan and that an

NCD is not a “direct disciplinary charge”—refute any sugges-

tion that this NCD punished Minik on the basis of his expres-

sion. This example would not lead a student to reasonably be-

lieve that speaking about controversial issues—independent

of other illegitimate behavior—would result in the student re-

ceiving an NCD, as the district court explicitly found that

other severe conduct, culminating in death threats, actually

prompted the NCD in this instance. Nor could this example

lead a student to reasonably believe that his or her protected

speech would violate an NCD if the student were subject to

one—Minik explicitly admitted otherwise.

Indeed, the uncontested statistics the University provided

about the reasons for imposing NCDs demonstrate that the

majority of NCDs arise as a result of a violation of the Student

Code—which, again, does not prohibit protected speech. Oth-

ers result from complaints of sexual misconduct or from an

extended and intensifying conflict between students, where

the University feared a future Student Code violation or vio-

lence would occur. Speech First has failed to present any ex-

ample where the University issued an NCD on the basis of

speech, or demonstrate that an NCD prohibits speech if im-

posed. And as in the BART context, Speech First has not pro-

duced any evidence that any student fears expressing a par-

ticular viewpoint due to concern the University will issue an

NCD against him. Speech First therefore has failed to demon-

strate a credible threat of any enforcement action to justify the

students’ purported self-censorship.

28 No. 19-2807

B. Mootness

Lastly, we address whether Speech First’s effort to enjoin

the University’s since-repealed (and never previously en-

forced) Student Code § 2-407, the prior approval rule, is moot.

Article III limits federal court jurisdiction to “live cases and

controversies … and ‘an actual controversy must exist not

only at the time the complaint is filed, but through all stages

of the litigation.’” Ozinga v. Price, 855 F.3d 730, 734 (7th Cir.

2017) (quoting Kingdomware Techs., Inc. v. United States, 136 S.

Ct. 1969, 1975 (2016)). “A question of mootness arises when …

a challenged ordinance is repealed during the pendency of lit-

igation, and a plaintiff seeks only prospective relief.” Fed’n of

Advert. Indus. Representatives, Inc. v. City of Chicago (“Federa-

tion”), 326 F.3d 924, 929 (7th Cir. 2003). “At that point, there is

no longer an ongoing controversy: the source of the plaintiff’s

prospective injury has been removed, and there is no ‘effec-

tual relief whatever’ that the court can order.” Ozinga, 855

F.3d at 734 (quoting Church of Scientology of Cal. v. United

States, 506 U.S. 9, 12 (1992)). We review the question of

whether an issue has been rendered moot de novo. Federation,

326 F.3d at 928–29.

As a general rule, in cases between private parties, “a de-

fendant’s voluntary cessation of challenged conduct will not

render a case moot because the defendant remains ‘free to re-

turn to his old ways.’” Id. at 929 (quoting United States v. W.T.

Grant Co., 345 U.S. 629, 632–33 (1953)). Indeed, a case will be-

come moot only if it is “absolutely clear that the allegedly

wrongful behavior could not reasonably be expected to re-

cur.” Friends of the Earth, Inc. v. Laidlaw Env. Serv. (TOC), Inc.,

528 U.S. 167, 189 (2000)). But “[w]hen the defendants are pub-

lic officials … we place greater stock in their acts of self-

No. 19-2807 29

correction, so long as they appear genuine.” Federation, 326

F.3d at 929 (quoting Magnuson v. City of Hickory Hills, 933 F.2d

562, 565 (7th Cir. 1991)); Freedom from Religion Found., Inc. v.

Concord Comty. Schs., 885 F.3d 1038, 1051 (7th Cir. 2018) (“A

defendant’s voluntary cessation of challenged conduct does

not necessarily render a case moot. … But if a government ac-

tor sincerely self-corrects the practice at issue, a court will give

this effort weight in its mootness determination.”). A contrary

conclusion would “put this court in the position of presuming

[the University] has acted in bad faith—harboring hidden mo-

tives to reenact the [policy] after we have dismissed the case—

something we ordinarily do not presume.” Federation, 326

F.3d at 929. “[W]e have repeatedly held that the complete re-

peal of a challenged [policy] renders a case moot, unless there

is evidence creating a reasonable expectation that the [Univer-

sity] will reenact the [policy] or one substantially similar.” Id.

at 930.

“Only in cases where there is evidence that the repeal was

not genuine has the Court refused to hold the case moot.” Id.

In City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283 (1982)—

a case Speech First cites—the Supreme Court held that a case

was not moot despite the repeal of a challenged statute be-

cause the city had announced its intent to reenact the statute

if the district court’s judgment were vacated. Id. at 289 & n.11.

Similarly, in United States v. Sanchez-Gomez, 138 S. Ct. 1532

(2018), the Court held a challenge to a policy was not moot

because the government had represented “that the Southern

District intend[ed] to reinstate its policy once it [was] no

longer bound by the decision of the Courts of Appeals.” Id. at

1537 n.*. And in Trinity Lutheran Church of Columbia, Inc. v.

Comer, 137 S. Ct. 2012 (2017), the governor issued a press

30 No. 19-2807

release on the eve of oral argument before the Supreme Court

announcing a repeal of the challenged policy. Id. at 2019 n.1.

We conclude Speech First’s challenge to Student Code § 2-

407 is moot. The University is a public entity and an arm of

the state government of Illinois, and therefore receives the

presumption that it acts in good faith. The University re-

pealed its policy imposing a prior restraint on posting of ma-

terials for non-campus elections after Speech First initiated

this litigation. This policy is not a threat to students past, pre-

sent, or future. There is no evidence in the record indicating

the University ever enforced the policy. With it no longer in

effect, no current student can suffer any harm from it. Fur-

thermore, through Kirts’s sworn affidavit, the University af-

firmatively represented to the district court and to this Court

that it does not intend to reenact the provision. And the Uni-

versity undertook a formal amendment process, which re-

quired a full vote by the Conference on Conduct Governance

and approval by the Chancellor. This process is analogous to

legislation, which Speech First concedes moots an issue. De-

spite Speech First’s assertions to the contrary, our precedent

does not require notice-and-comment rulemaking or that

elected officials perform the modifications.

The two cases our colleague in dissent cites make no dif-

ference to our analysis. To begin, in Concord, a superinten-

dent’s statement disavowing future school holiday concerts

that promote religious beliefs was insufficient to moot a case

where the “the school board had the authority to adopt offi-

cial policies” prohibiting shows with religious purposes and

“failed to document in any way its decision to make the

changes permanent.” 885 F.3d at 1052. The factual scenario in

Doe ex rel. Doe v. Elmbrook Sch. Dist., 658 F.3d 710 (7th Cir.

No. 19-2807 31

2011), vacating the original panel’s opinion but adopting its justi-

ciability analysis, 687 F.3d 840, 842 (7th Cir. 2012) (en banc), is

nearly identical. Although a school’s superintendent and

principal had represented that they did not intend to hold the

school’s graduation ceremony in a church, the school failed to

establish mootness because it did not adopt a policy formally

prohibiting the use of churches for graduation. Id. at 720–21.

In both cases, a mere statement was not enough—the school

board needed to enact a formal policy, as was within its au-

thority to do. Here, the University not only submitted Kirts’s

declaration: it formally amended the Student Code.

The Sixth Circuit in Schlissel applied a more stringent test

to determine mootness than the one our own precedent de-

mands: it required not only a formal process to repeal a policy

but affirmative signals from the University that the repeal was

genuine. The Sixth Circuit held that Speech First’s challenge

to definitions of “bullying” and “harassing” was not moot,

even though the University of Michigan modified these defi-

nitions after Speech First filed suit. 939 F.3d at 770. The Sixth

Circuit noted, “Where regulatory changes are effected

through formal, legislative-like procedures, we have found

that to moot the case the government need not do much more

than simply represent that it would not return to the chal-

lenged policies.” Id. at 768. The court took issue with the fact

that the University of Michigan did not “affirmatively state[]

that it does not intend to reenact the challenged definitions.”

Id. at 769. The University of Illinois made exactly this asser-

tion, and Speech First has not rebutted it.

Moreover, in Schlissel, the University of Michigan actively

applied these definitions, promoted them on the website of its

Office of Student Conflict Resolution, and continued to

32 No. 19-2807

defend the constitutionality of the definitions in the litigation.

Id. at 762, 770. These factors contributed to the court’s conclu-

sion that the University’s modification of the definitions did

not moot Speech First’s claim. Id. at 770. Here, there is no evi-

dence that the University of Illinois ever enforced the now-

repealed § 2-407 in the first place, and the University has at no

point ever defended its constitutionality. Even under the Sixth

Circuit’s more demanding standard, Speech First’s claim re-

garding § 2-407 is moot.

Indeed, the dissent’s mootness analysis would create a

standard going beyond that of even the Sixth Circuit in Schlis-

sel, as it adds several requirements that draw no support from

Supreme Court or our own precedent. We have never de-

manded, nor did the Sixth Circuit require, a concession that a

rule is unconstitutional. In addition, while the Sixth Circuit

did find relevant the lack of an affirmative statement that the

university did “not intend to reenact the challenged” policy,

it did not require a binding promise that the university will

never revisit it. Id. at 769. We similarly have never required a

government actor to issue a promise that it will not return to

its prior policy. And while the dissent takes issue with the fact

that the University here could repeal the policy in four days’

times, we are unaware of any precedent suggesting that the

amount of time it takes to perform a repeal has any bearing

on the mootness analysis. What the dissent appears to hang

its hat on—the merely theoretical possibility that the Univer-

sity could decide to revisit the policy at some remote point in

No. 19-2807 33

the future without any evidence of an intention to do so—is

not enough to survive a mootness challenge. 3

III. Conclusion

Speech First lacks standing to seek a preliminary injunc-

tion against the University’s BART, BIP, and NCD policies,

and its challenge to Student Code § 2-407 is moot. The judg-

ment of the district court is AFFIRMED.

3 The dissent also takes issue with the timing of the repeal, which came

after the commencement of this litigation. Indeed, the Sixth Circuit in

Schlissel also found that factor relevant to its analysis. But in that case, the

university actively used the challenged definitions and there was thus “no

indication … that the University was so much as considering changing the

definitions” before it did so. 939 F.3d at 769. Here, where there is no evi-

dence the provision was ever enforced or that the University was even

aware it was on the books, timing is not so suspect.

34 No. 19-2807

BRENNAN, Circuit Judge, concurring in part and dissenting

in part. For several years universities have engaged in height-

ened efforts to supervise speech on their campuses. These

steps can collide with the First Amendment’s free speech pro-

tections, especially of political speech. At issue in this case are

the University of Illinois’s policies to monitor speech on cam-

pus and in residence halls, as well as the prohibition in its Stu-

dent Code on distributing election literature on campus.

I concur with the majority opinion that, on this record,

Speech First offered insufficient evidence of injury in fact to

qualify for associational standing. I do not conclude that the

challenge to the Student Code prohibiting the disbursement

of campaign literature is moot and respectfully dissent on that

question.

I. Standing to Challenge Bias Responses

and No Contact Directives

A. Legal Framework

Associational standing, which Speech First asserts, is a

function of that association’s individual members’ standing.

Hunt v. Washington State Apple Advert. Comm’n, 432 U.S. 333,

343 (1977) (recognizing an association has standing to sue on

behalf of its members when members would otherwise have

standing to sue in their own right). To establish constitutional

standing under Article III, at least one association member

must show an “injury in fact.” Spokeo, Inc. v. Robins, 136 S. Ct.

1540, 1547–48 (2016); United Food & Commercial Workers Union

v. Brown Group, 517 U.S. 544, 555 (1996); Lujan v. Defenders of

No. 19-2807 35

Wildlife, 504 U.S. 555, 560 (1992). Whether Speech First’s mem-

bers satisfy the injury-in-fact standard is one of the justiciabil-

ity disputes in this case.1

“Injury in fact” means an invasion of a legally protected

interest that is concrete and particularized, and actual or im-

minent, rather than conjectural or hypothetical. Lujan, 504

U.S. at 560. In Spokeo the Supreme Court explained in detail

the particularization and concreteness requirements. “For an

injury to be ‘particularized,’ it ‘must affect the plaintiff in a

personal and individual way.’” 136 S. Ct. at 1548 (quoting

Lujan, 112 S.Ct. at 2136 n.1). Concreteness requires an injury

be “de facto”; “that is, it must actually exist.” Id. “[I]ntangible

injuries can nevertheless be concrete.” Id. (citations to First

Amendment challenges omitted). The Court has “made it

clear time and again that an injury in fact must be both con-

crete and particularized.” Id. (citing inter alia Susan B. Anthony

List v. Driehaus (SBA List), 573 U.S. 149, 158 (2014)).

Finer points are introduced when a plaintiff tests a law or

rule under the First Amendment. A facial challenge can be

pre-enforcement. Steffel v. Thompson, 415 U.S. 452, 459 (1974);

see also Brandt v. Vill. of Winnetka, Ill., 612 F.3d 647, 649 (7th Cir.

2010). Without an enforcement action, what a plaintiff must

show to satisfy the injury-in-fact requirement for a First

Amendment claim has been described somewhat differently

by different courts.

1 Not disputed are the other two elements of standing, a “causal con-

nection between the injury and the conduct complained of,” meaning that

the injury is “fairly traceable” to the defendant’s actions, and a likelihood

that the injury “will be redressed by a favorable decision.” Lujan, 504 U.S.

at 560–61.

36 No. 19-2807

As the majority opinion points out, to establish injury in

fact, a plaintiff must make one of two showings. The first re-

quires an intention to engage in a course of conduct arguably

affected with a constitutional interest but which is proscribed

by a policy, and a credible threat the policy will be enforced

against the plaintiff. SBA List, 573 U.S. at 158–59; Babbitt v.

United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979) (re-

quiring “a credible threat of prosecution”). Under the second,

a plaintiff must show a chilling effect on speech that is objec-

tively reasonable, and the plaintiff self-censors as a result. Bell

v. Keating, 697 F.3d 445, 454 (7th Cir. 2012).

This court has elaborated on these showings in deciding

other pre-enforcement facial First Amendment challenges. In

Ctr. for Individual Freedom v. Madigan, 697 F.3d 464 (7th Cir.

2012), a nonprofit organization (like Speech First) brought a

pre-enforcement challenge to Illinois’s campaign finance dis-

closure requirements, contending they were constitutionally

violative as vague and overbroad. This court’s evaluation cen-

tered on chilling effect. It noted that “[t]he injury-in-fact

standard is often satisfied in pre-enforcement challenges to

limitations on speech,” and recognized the harm of self-cen-

sorship without prosecution. Madigan, 697 F.3d at 473–74 (cit-

ing Virginia v. Am. Booksellers Ass’n (American Booksellers), 484

U.S. 383 (1988)). “The chilling of protected speech may thus

alone qualify as a cognizable Article III injury, provided the

plaintiffs ’have alleged an actual and well-founded fear that

the law will be enforced against them.’” Id. at 474 (quoting

American Booksellers, 484 U.S. at 393).

In Bell, an opinion decided the same day as Madigan, this

court analyzed a pre-enforcement facial challenge that a fail-

No. 19-2807 37

ure-to-disperse provision in Chicago’s disorderly conduct or-

dinance was vague and overbroad. Chilled speech was recog-

nized as an injury that can support standing, but a plaintiff’s

subjective fear of chilling was insufficient to sustain a court’s

Article III jurisdiction over such a claim. Id. at 453. “The plain-

tiff must substantiate a concrete and particularized chilling ef-

fect on his protected speech or expressive conduct to pursue

prospective relief.” Id. at 454 (concluding the plaintiff had suc-

cessfully alleged a chilling injury and enjoyed standing to sue

for injunctive relief and to facially challenge the ordinance).

Below I consider this case under this framework.

B. Discussion

Speech First bears the burden to show standing as the

party invoking federal jurisdiction. Lujan, 504 U.S. at 561. The

evidence must be presented, as the majority opinion states, by

affidavit or other evidence of specific facts rather than general

allegations of injury. Six Star Holdings, LLC v. City of Milwau-

kee, 821 F.3d 795, 801–02 (7th Cir. 2016).

The majority opinion organizes its standing analysis

around a series of factual findings by the district court, con-

cluding that none are clearly erroneous and that Speech First

has not submitted evidence disputing many of them. I concur

with my colleagues’ review of some of these findings. Other

findings—such as a report to the bias assessment response

team having no consequences, the voluntariness of a meeting

with the bias assessment response team not chilling speech,

and the privacy of students’ interactions with the bias assess-

ment response team—I see as closer calls, and their resolution

38 No. 19-2807

a function of the sparse evidence Speech First presented. Be-

cause there was no evidentiary hearing, 2 those specific facts

must be set forth by affidavit.

How specific the facts must be in this context has been set

by the Supreme Court. In Laird v. Tatum, 408 U.S. 1 (1972),

plaintiffs challenged the U.S. Army’s surveillance of civilian

political activity as chilling their exercise of First Amendment

rights. Affidavits on the plaintiffs’ motion for a preliminary

injunction gave background information and described the

complained-of activities. Id. at 3. The Court ruled that the

mere existence and operation of a government system was in-

sufficient to present a justiciable controversy. Id. at 10–14.

In Laird the plaintiffs complained about “the mere exist-

ence … of a governmental investigative and data-gathering

activity,” and nothing more. Id. at 10. The Court held that the

plaintiffs (the subjects of the surveillance) may have suffered

a “subjective chill,” but did not allege “actual present or im-

mediately threatened injury” to entitle them to standing. Id.

at 15. “Allegations of a subjective ‘chill’ are not an adequate

substitute for a claim of specific present objective harm or a

threat of specific future harm” by the plaintiffs. Id. at 13–14.

The plaintiffs must be “presently or prospectively subject to

the regulations, proscriptions, or compulsions” being chal-

lenged, id. at 11, a threshold they did not meet. While govern-

mental action with only an indirect effect on First

Amendment rights may be subject to constitutional challenge,

plaintiffs seeking to invoke the judicial power must show that

2A hearing was set on the motion for preliminary injunction on Sep-

tember 23, 2019, but the district court issued its Order denying the motion

six days before.

No. 19-2807 39

they sustained, or are in immediate danger of sustaining, a

direct injury as a result of that action. Id. at 12–13 (citing Ex

parte Levitt, 302 U.S. 633, 634 (1937)); see also Socialist Workers

Party v. Att’y Gen. of U.S., 419 U.S. 1314, 1319 (1974) (Marshall,

J., sitting as Circuit Justice) (concluding “specificity of the in-

jury claimed by the applicants is sufficient, under Laird, to sat-

isfy the requirements of Art. III.”).

The obverse circumstances were presented in Meese v.

Keene, 481 U.S. 465 (1987). There a plaintiff wished to exhibit

films about nuclear war and acid rain, and he challenged a

federal statute that required those films to be labeled “politi-

cal propaganda.” Id. at 467. The plaintiff submitted detailed

and uncontradicted affidavits that he would be substantially

harmed, his reputation would be adversely affected, and he

risked injury as a result of the films being classified as propa-

ganda, so the Court concluded he had standing to sue. Id. at

472–74. If the plaintiff “had merely alleged that the appella-

tion deterred him by exercising a chilling effect on the exercise

of his First Amendment rights, he would not have standing to

seek its invalidation.” Id. at 473 (citing Laird, 408 U.S. at 13-14).

Applying these standards here leads me to conclude that

the statements in the Neily declaration lack the required spec-

ificity—including the particularity and concreteness—to meet

this evidentiary threshold. Although the majority opinion

cites to the number and length of the University’s affidavits,

critical to me are the facts (or lack thereof) attested to on the

topics of self-censoring, referrals for punishment or disci-

pline, identification/anonymity, no-contact directives, and the

bias incident protocol.

Self-censorship. The Neily declaration states that students

A–D credibly fear the University’s bias assessment response

40 No. 19-2807

initiative and its consequences, and that the only way for

them to avoid it is to engage in self-censorship. But those two

conclusory sentences in that declaration offer no evidence of

any of these students self-censoring their speech to avoid the

initiatives. For example, the students did not file anonymous

affidavits setting forth what they would have said, when,

where, and to whom. As explained in Laird, students A–D

cannot merely object to the existence and operation of a sys-

tem; they must show a specific present objective harm or

threat of specific harm. 408 U.S. at 11. Rather than the detailed

and unrebutted affidavits the plaintiff submitted in Meese, the

students here averred a subjective chill without more.

Yet even if students A–D had sufficiently established an

objectively reasonable fear, under Bell they must substantiate

a concrete and particularized chilling effect. We know more

about what that means after Spokeo: “For an injury to be ‘par-

ticularized,’ it ‘must affect the plaintiff in a personal and indi-

vidual way.” 136 S. Ct. at 1548. “A ‘concrete’ injury must be

‘de facto’; that is, it must actually exist.” Id. (citation omitted).

Here, no evidence has been presented of such effects on stu-

dents A–D. To show that injuries “actually existed” plaintiffs

must assert more than a mere conclusion that their speech has

been chilled.

Referrals for Punishment or Discipline. The Neily declaration

does not aver that any of the four students listed have been

punished or disciplined, or threatened with punishment or

discipline, and the record does not reveal any students being

investigated or punished as a result of the two challenged

University policies. The declaration does include an example

of an advisor commenting to a student about a bias complaint

against that student, but it does not connect that averment

No. 19-2807 41

with students A–D, again failing the particularity and con-

creteness requirements.

In contrast are the more specific declarations from January

Boten, Assistant Dean of Students in the Office for Student

Conflict Resolution, and Justin Brown, Associate Dean of Stu-

dents and Director of the Office for Student Conflict Resolu-

tion. They describe how the bias assessment response team

does not make referrals to the police or the student discipli-

nary process unless the speech or conduct also violates the

Student Code.

Identification/Anonymity. Four students in the Neily decla-

ration listed topics about which they wish to speak, advocate,

and ask questions: students A and C on immigration, student

B on Islamic policy, and student D on LGBT issues. Each year,

the bias assessment response team issues a report describing

the complaints it received and its responses. The year-end re-

port includes these topics, but according to the University the

report does not identify these (or other) students as having

been approached to discuss alleged bias incidents or being

given corrective actions.

Speech First argues that the detailed descriptions in the

bias assessment response team report make some of the “of-

fenders” (the term used in the University’s policies) easily

identifiable, and that students could fear inclusion in the re-

port. Along with the descriptions in the majority opinion, ex-

amples of reported bias include a campus speaker “saying

things like ‘America is the greatest country in the world,’”

sidewalk chalk advocating “Women For Trump,” and an in-

structor “fail[ing] to use [a student’s] preferred gender pro-

nouns and ma[king] statements about gender identity being a

matter of choice.” To Speech First, the person charged with

42 No. 19-2807

bias can easily be traced by comparing the bias report with a

calendar and news reports, making chilling effects more

likely.

But the example Speech First cites—complaints received

and the University response to an event on immigration—is

absent from the Neily declaration. And there is no evidentiary

connection between students A–D and the year-end report.

Nor is there evidence as to the consequences for a student’s

inclusion in the report. Absent such information, the declara-

tion does not show that these four Speech First members have

an objectively reasonable, actual, and well-founded fear that

they will be identified, or that their anonymity will be com-

promised, by the year-end report.

No-Contact Directives. The Neily declaration presents no

evidence that the University issued a no contact order against

students A–D or issued such an order on the topics these stu-

dents would like to discuss.

Bias Incident Protocol. As the majority opinion points out,

the Neily declaration does not mention the bias incident pro-

tocol, which is the bias assessment reporting initiative appli-

cable in University student housing. The three words “in their

dormitories” included in the Neily declaration does not estab-

lish standing to challenge that procedure, even if it is similar

in nature to the bias assessment response team.

From the absence of specific facts attested to on these five

topics, I conclude that under the legal framework discussed

above, Speech First has not met its burden to establish stand-

ing. The evidence presented at this stage does not support the

conclusion that students A–D had actual and well-founded

fears that the University policies will be enforced against

No. 19-2807 43

them, and that those four students have had a concrete and

particularized chilling effect on their protected speech, de-

spite the modest evidentiary threshold.

This conclusion—given the legal subject matter, the poli-

cies in dispute, and the arguments offered—is not uncompli-

cated. Speech First contends in its briefs that the University’s

bias assessment response policies chill students’ speech. The

topics about which students A–D wish to speak, unfettered,

show their desire to engage in political speech. 3 Reasonably

risk-averse students generally avoid a burdensome investiga-

tive process. Such investigations could amplify reputational

damage suffered by “offenders” even when the speech inves-

tigated is protected.

The University also labels its students “offenders” on un-

verified accusations alone. Nobody likes to be called an “of-

fender,” which bears with it some reputational damage. See,

e.g., Meese, 481 U.S. at 473 (plaintiff submitted detailed affida-

vits, including the results of an opinion poll, that his exhibi-

tion of films classified as political propaganda would ad-

versely affect his reputation). Because reputational damage

can impair a student’s prospects for academic and profes-

sional success, objectively reasonable students may be ex-

pected to behave in ways that mitigate their exposure to any

allegation that might trigger a bias investigation. “Process is

punishment” is not a platitude; a University-controlled clear-

inghouse for speech can deter students from speaking out.

3See, e.g., Brief of Amicus Curiae Southeastern Legal Foundation in

Support of Plaintiff-Appellant and Reversal, pp. 1-5, ECF No. 18.

44 No. 19-2807

No educational institution should force students to bal-

ance academic and professional success against the free ex-

pression of political viewpoints. Potential “offenders” may

not speak at all if they fear that University officials are moni-

toring them for biased speech. 4 The practical effect of the bias

assessment initiatives could be to communicate that open dis-

cussion should cease if it interferes with any listener’s subjec-

tive beliefs.

While such consequences could conceivably constitute

particular and concrete threats of harm chilling protected

speech, none of this appears in the Neily declaration involv-

ing students A–D. Some of Speech First’s points and argu-

ments are included in their briefs, but not in the evidence. For

example, the dispute and subsequent no-contact directive be-

tween Khan and Minik is argued in the briefs, but absent from

the evidentiary record. The bar is not being set too high here,

as specific facts in affidavits are essential. 5

This conclusion is also difficult to reconcile with the Sixth

Circuit panel majority opinion in Speech First, Inc. v. Schlissel,

939 F.3d 756, 765 (6th Cir. 2019), which held that Speech First

had standing to challenge the University of Michigan’s bias

response team initiative.6 The Neily declaration in Schlissel re-

sembles her declaration here, and the district court in this case

4

See, e.g., Amicus Brief of the Wisconsin Institute for Law & Liberty

Supporting Appellant and Reversal, pp. 6–10, ECF No. 25.

5

Nor could the district court consider examples from the complaint

which was not verified.

6

Another pending case challenges the University of Texas’s bias as-

sessment response team initiatives. Speech First, Inc. v. Fenves, 384 F. Supp.

3d 732, 735 (W.D. Tex. 2019) (denying motion for preliminary injunction,

No. 19-2807 45

noted that the University of Michigan and the University of

Illinois have “similar university bias response policies.” Still,

on this record, Speech First has not met the standing require-

ments for this First Amendment pre-enforcement challenge

for the reasons discussed above.

“[A]bove all else, the First Amendment means that gov-

ernment has no power to restrict expression because of its

message, its ideas, its subject matter, or its content.” Police

Dep’t of Chicago v. Mosley, 408 U.S. 92, 95 (1972). Before a court

may exercise its authority to limit government power, the jus-

ticiability rules and requirements must be followed. As the

Court stated in Spokeo, Article III standing “serves to … con-

fine[] the federal courts to a properly judicial role.” 136 S. Ct.

at 1547 (internal quotation marks and citations omitted).

Standing requirements demarcate non-justiciable abstract

questions from cases or controversies properly subject to ad-

judication. These requirements play a functional role in main-

taining our separation of powers. See Antonin Scalia, The

Doctrine of Standing as an Essential Element of the Separation of

Powers, 17 SUFFOLK UNIV. L. REV. 881, 894-97 (1983). At this

stage of this litigation specific facts establishing standing have

not been presented.

II. Mootness of Prior Approval Rule

Student Code § 2-407 prohibited, without prior approval,

the posting and distribution of handout materials that pro-

moted candidates for non-campus elections. Students who vi-

olated the provision were subject to discipline.

and finding Speech First’s students members lack standing), appeal to 5th

Cir. June 7, 2019 (No. 19-50529), case argued March 2, 2020.

46 No. 19-2807

Speech First challenges this prohibition as an impermissi-

ble prior restraint on political speech violating the First

Amendment. Its complaint alleges the University published

no criteria governing what materials merited approval or

when it would rule on an application to post or distribute

such election materials. Without the University having shown

a compelling interest in a prior restraint of political speech,

and this prohibition being narrowly tailored to such an inter-

est, Speech First challenges this code provision as chilling pro-

tected speech and forcing students who do not wish to com-

ply with this requirement to engage in self-censorship.

Seven weeks after this lawsuit was filed—and four days

before the University responded to the preliminary injunction

motion—the University amended the Student Code to repeal

the prior approval rule, as described in the majority opinion.

The University’s Associate Dean of Students, Rhonda Kirts,

filed a declaration stating “[t]he University has no intention

of restoring the eliminated provision or adopting a new pro-

vision similar to it, and therefore this elimination of the pre-

approval requirement for non-campus election materials is

definitive.” The University argues Speech First’s challenge to

this student code provision is therefore moot. Speech First

disagrees. We review this question de novo. Federation of

Advert. Indus. Reps., Inc. v. City of Chicago, 326 F.3d 924, 928-29

(7th Cir. 2003).

“Voluntary cessation of the contested conduct makes liti-

gation moot only if it is ‘absolutely clear that the allegedly

wrongful behavior could not reasonably be expected to re-

cur.’ Otherwise the defendant could resume the challenged

conduct as soon as the suit was dismissed.” Elim Romanian

Pentecostal Church, et al. v. Jay Robert Pritzker, 962 F.3d 341, 345

No. 19-2807 47

(7th Cir. 2020) (quoting Friends of the Earth, Inc. v. Laidlaw Env.

Serv. (TOC), Inc., 528 U.S. 167, 189 (2000)). “The party assert-

ing mootness bears a ‘heavy burden’ of persuading the court

that there is no reasonable expectation that the challenged

conduct will reappear in the future.” Pleasureland Museum,

Inc. v. Beutter, 288 F.3d 988, 999 (7th Cir. 2002) (quoting Friends

of the Earth, 528 U.S. at 189).

The relative ease, timing, and manner by which the Uni-

versity amended the Student Code are all measures as to

whether it meets this heavy burden. On none of these criteria

has the University shown with absolute clarity that the prior

approval rule has perished permanently.

It took only four days for the University’s conduct confer-

ence to repeal the challenged provision and for the chancellor

to approve, moves that had an immediate effect. Such a repeal

could be undone in the same time frame with the same ease.

Because the University’s procedures are self-imposed, it re-

mains unconstrained to reverse itself on the prior approval re-

quirement. Indeed, the Student Code says it is “subject to

change without notice,” and the code provides ways it can be

amended differently than as amended here. The University

has taken the position that the policies challenged in this case

are “critical to the University’s functioning and achievement

of its educational mission.” If that includes the prior approval

code provision, such a continued position does not indicate

permanent abandonment. See, e.g., Jager v. Douglas Cty. Sch.

Dist., 862 F.2d 824, 833–34 (11th Cir.), cert. denied, 490 U.S. 1090

(1989) (holding voluntary cessation of pregame prayer did not

moot First Amendment challenge where elimination was not

formal board policy). My colleagues in the majority conclude

that the repeal and possibility of reenactment in such a short

48 No. 19-2807

time frame is of no moment, but this court has considered the

ease with which a contested government action has been re-

pealed and can be replaced, see, e.g., Federation of Advertising

Injury Representatives, Inc., 482 F.3d at 931 (considering munic-

ipality’s pattern of proposed and repealed ordinances, alt-

hough concluding case was moot), as have other appellate

courts. See Rosebrock v. Mathis, 745 F.3d 963, 972 (9th Cir. 2014)

(considering whether policy change “could be easily aban-

doned or altered in the future”) (quoting Bell v. City of Boise,

709 F.3d 890, 901 (9th Cir. 2013)).

When the University amended the Student Code also

must be considered. The prior approval rule was withdrawn

nearly two months into this litigation, and just before the Uni-

versity responded to the crucial preliminary injunction mo-

tion. My colleagues in the majority do not find this timing sus-

pect. Yet a reasonable inference from when this repeal oc-

curred is that the University decided the prior approval rule

was constitutionally violative, so it was deleted from the Stu-

dent Code. A concession in the University’s declarations that

the prior approval rule is an impermissible prior restraint on

political speech would evince that the University would not

reenact it, as the admission in litigation of a constitutional vi-

olation is unlikely to be reconsidered. See Wis. Right to Life v.

Schober, 366 F.3d 485, 487-88 (7th Cir. 2004) (recognizing vol-

untary cessation rendered case moot because state agency ad-

mitted challenged statute was unconstitutional). But the Uni-

versity makes no such admission. 7

7In the district court the parties agreed to stay the defendants’ obliga-

tion to answer or otherwise respond to the complaint, so the defendants

No. 19-2807 49

How the University voluntarily discontinued the chal-

lenged official action matters as well. Kirts declares the Uni-

versity “has no intention” to reverse field, a stance she char-

acterizes as “definitive.” But more than a non-committal state-

ment is required to persuade that the challenged provision

will not resurface. See, e.g., People for the Ethical Treatment of

Animals v. United States Dep’t of Agriculture and Animal and

Plant Health Insp. Serv., 918 F.3d 151, 157-159 (D.C. Cir. 2019)

(governmental department’s statement of intent to change

lacked necessary precision to conclude that its voluntary ces-

sation mooted the case). Neither Kirts nor the other Univer-

sity declarants promise that the University will not revisit this

Student Code provision. Even if she did, the Kirts declaration

does not bind the University. It reflects an intent arrived at

weeks after this litigation ensued, and in the face of the pre-

liminary injunction motion. The Supreme Court used the ad-

verb “absolutely” to modify how clear it must be that the al-

legedly wrongful behavior could not be expected to recur.

Friends of the Earth, Inc., 528 U.S. at 189. The University’s dec-

larations fail to meet that heavy burden.

The University contends § 2-407 will not be reinstated be-

cause it has never been enforced. Besides falling prey to the

gambler’s fallacy (an inference about unknown future events

based upon known past events), the only evidence of the prior

approval rule’s history of enforcement is a single sentence in

Kirts’s declaration, which is limited to her personal experi-

ence, not that of the entire University. The majority opinion’s

have not responded to this claim other than in response to the preliminary

injunction motion.

50 No. 19-2807

repeated statement that this provision has never been en-

forced misses the mark for the same reason. As the Sixth Cir-

cuit pointed out in Speech First, Inc. v. Schlissel, 939 F.3d at 766,

“[t]he lack of discipline against students could just as well in-

dicate that speech has already been chilled.”

While the majority opinion is correct that “[c]ourts are

more apt to trust public officials than private defendants to

desist from future violations … [t]he tendency to trust public

officials is not complete, however, nor is it invoked automati-

cally.” 13C CHARLES ALAN WRIGHT, ARTHUR R. MILLER &

EDWARD H. COOPER, FEDERAL PRACTICE & PROCEDURE § 3533.7

(3d ed. 2008). The manner in which an entity, public or pri-

vate, voluntarily ceases is important. Speech First, Inc. v. Schlis-

sel, 939 F.3d at 768 (taking into account “the totality of the cir-

cumstances surrounding the voluntary cessation, including

the manner in which the cessation was executed.”). The dis-

continued official action here—the Student Code provision—

was not repealed by a legislature revising a state statute, see

Matter of Bunker Ltd. Partnership, 820 F.2d 308, 312–13 (9th Cir.

1987), or after compliance with a court order, see Spirit of the

Sage Council v. Norton, 411 F.3d 225, 229–30 (D.C. Cir. 2005). It

was not even a repealed municipal ordinance. See Federation,

326 F.3d at 927; Pleasureland, 288 F.3d at 993. Instead, it was a

provision in the University’s Student Code, defined as “a col-

lection of rules, regulations, policies, and procedures that ap-

ply to, or otherwise directly impact, students at the University

of Illinois at Urbana-Champaign.” Albeit on a greater scale,

such a Student Code is in common with the decisions of a

school board.

In that important respect, the mootness analysis of this

court in two cases involving school districts provides some

No. 19-2807 51

good guidance. First, in Freedom from Religion Found., Inc. v.

Concord Comm. Sch., 885 F.3d 1038 (7th Cir. 2018), this court

concluded that a school superintendent’s statements in an

affidavit—that the school district would present an annual

holiday program compliant with the First Amendment’s Es-

tablishment Clause—did not render moot claims challenging

that program. Id. at 1050–53. That the superintendent was sin-

cere was not enough to conclude the dispute was moot, as

there was “no guarantee that a future superintendent would

take the same stance.” Id. at 1052 (citing Boyd v. Adams, 513

F.2d 83, 89 (7th Cir. 1975) (new decision-maker could “resur-

rect the old procedure in the future”)). In Concord this court

contrasted the superintendent’s affidavit in that case with the

voluntary cessation in Wis. Right to Life, Inc. v. Schober, 366

F.3d at 487–88, 492. In Schober, a state agency sent a letter to

the plaintiff stating that it would not enforce the challenged

statute against plaintiff because it considered the statute to be

unconstitutional; the state agency also posted online that the

challenged statute was unconstitutional.

As the superintendent’s affidavit in Concord fell short of

the commitments in Schober, so Kirts’s declaration falls short

here. Had the University admitted the unconstitutionality of

the provision and promised not to enforce it, like in Schober, it

would have come closer to bearing its heavy burden. On the

record before us, though, the University’s failure “to docu-

ment in any way its decision to make the change permanent”

is enough to present a live controversy. Concord, 885 F.3d at

1052.

Second, in Doe ex rel. Doe v. Elmbrook Sch. Dist., 658 F.3d

710 (7th Cir. 2011), vacated on grounds other than justiciability,

687 F.3d 840, 842 (7th Cir. 2012) (en banc), this court held that

52 No. 19-2807

a school district had failed to establish mootness because it

did not adopt a formal policy prohibiting the use of churches

for graduation. 658 F.3d at 720–21. The school district, there-

fore, had not met its burden of demonstrating with absolute

clarity that it would not engage in First Amendment violative

conduct. Id. The University’s failure to adopt a similar for-

ward-looking, binding, and formal policy position should

lead us to the same conclusion that the challenge to the prior

approval rule is not moot. 8

Even a state governor’s announcement of voluntary cessa-

tion has been deemed insufficient to meet the heavy burden

to moot a case. Trinity Lutheran Church of Columbia, Inc. v.

Comer, 137 S. Ct. 2012 (2017). That case involved a challenge

to a Missouri agency’s policy of disqualifying religious organ-

izations from grant funding. Though the governor had an-

nounced he had directed to the contrary, nothing prevented

the state agency from reinstating its former policy, so the Su-

preme Court declined to find the controversy moot. Id. at 2019

n.1. Kirts’s non-binding statement as a school administrator

has less weight than a governor’s statement. A tougher case

would be if the University’s governing body which exercises

final authority—its board of trustees—issued some type of

8My colleagues in the majority conclude that these cases are distin-

guishable because these school boards made statements without adopting

a formal policy, while the University amended its Student Code. But such

an amendment does not address reversibility or the other important con-

siderations of how an entity voluntarily ceases challenged conduct. Delet-

ing a provision after litigation ensues is far weaker than longer-lasting

constraints such as a concession of unconstitutionality or a binding prom-

ise.

No. 19-2807 53

binding statute (formerly called bylaws), rendering perma-

nent the repeal of the prior approval rule, but that did not

happen here.

The majority opinion states that the Sixth Circuit in Schlis-

sel applied a “more demanding standard” than our court, re-

quiring not only a formal process to repeal but affirmative sig-

nals from the University that the repeal was genuine, which

the majority opinion finds in Kirts’s declaration. In my view,

the mootness analysis in Schlissel is highly similar to our eval-

uation here, as should be the result. The Sixth Circuit con-

cluded that the University of Michigan’s ad hoc regulatory

processes leading to changed definitions in its Student Code

did not relieve the school of much of its reduced burden as a

government entity to show the case is moot. Schlissel, 939 F.3d

at 769. The timing of the University’s repeal—removing the

definition after the complaint in the case was filed—raised

suspicions that its cessation was not genuine. Id. Those same

concerns are present here. The panel majority in Schlissel con-

cluded that the claim challenging the definitions in the Uni-

versity of Michigan’s student code was not moot. Id. at 770.

For the same reasons, the mootness analysis I apply properly

employs the standards of “heavy burden” and “absolutely

clear,” which come directly from the Supreme Court in

Friends of the Earth, Inc., 528 U.S. at 189.

The circumstances of this case do not persuade me that the

University has, as the law requires, carried its heavy burden

to make it absolutely clear that the allegedly offending Stu-

dent Code provision will not return. So I respectfully dissent

from the conclusion that Speech First’s challenge of the prior

approval rule is moot.

54 No. 19-2807

III. Conclusion

This case had a short life in the district court—from filing

to order in less than four months, followed by this interlocu-

tory appeal. And the evidentiary support submitted in that

abbreviated period falls short, to the detriment of both sides.

I agree that, under the applicable law, the Neily declara-

tion presents insufficient evidence of injury in fact, so associ-

ational standing has not been established, and the district

court’s denial of the plaintiff’s motion for a preliminary in-

junction must be affirmed. In the Kirts declaration, the Uni-

versity did not bear its heavy burden to make it absolutely

clear that the prior approval rule will not reasonably be ex-

pected to be reinstated, so I conclude Speech First’s challenge

of that provision is not moot.

This case has been stayed in the district court pending this

appeal. On remand, the district court can consider under the

applicable rules and based on the parties’ arguments whether

to allow amendment to the pleadings and discovery to de-

velop the evidentiary record for the remainder of this case.9

9 The Sixth Circuit noted the same in Schlissel, 939 F.3d at 765 n.1.