Cydney A. Crue, John M. McKinn Debbie A. Reese, Brenda M. Farnell, Frederick E. Hoxie, Stephen Kaufman, and Philip W. Phillips v. Michael Aiken
Docket: 02-3627, 03-2281, 03-2951
Court: Court of Appeals for the Seventh Circuit; June 1, 2004; Federal Appellate Court
The case involves First Amendment issues related to the 'Chief Illiniwek' mascot at the University of Illinois, which is viewed differently by various stakeholders—some see it as a mascot, while others regard it as a symbol. The discussion highlights the diversity of college nicknames and mascots, contrasting unique and imaginative names from various universities with more generic ones. Notable examples include schools with distinctive nicknames such as the 'Hustlin' Quakers' and the 'Banana Slugs,' while many institutions rely on common animals like Tigers and Bulldogs. The excerpt emphasizes the creativity and individuality that some college nicknames embody, underscoring the tension between tradition and modern perspectives on mascots in higher education.
School nicknames vary widely in creativity, with some being controversial. The Banana Slug at UC-Santa Cruz became the official mascot after a student-led referendum, defeating the Sea Lion due to its representation of campus values like flexibility and nonaggressiveness. In contrast, the University of Illinois' 'Fighting Illini' nickname and its mascot, Chief Illiniwek, spark ongoing controversy. Chief Illiniwek, who performs at athletic events but does not engage in traditional cheerleading, is viewed differently by supporters and opponents—some see him as a mascot while others regard him as a symbol. This debate over Native-American names and symbols is prevalent across multiple universities, with some, like Florida State and the University of North Dakota, resisting change, while others have transitioned away from Native-themed mascots. Chief Illiniwek originated in 1926 when a band director introduced a Native American war dance, which was well-received. The term 'Illiniwek,' linked to the university by coach Bob Zuppke, reflects the Algonquin concept of a complete human being. The chief's costume and dance have evolved, but opposition began emerging around 1975, as indicated by a challenge noted in the university's yearbook.
Chief Illiniwek has served as a symbol of University spirit since 1926, but opinions on the mascot are sharply divided. Critics like Bonnie Fultz of Citizens for AIM argue that Chief Illiniwek mocks Native American culture and disrespects both Indian and white cultures by perpetuating ignorance of tribal customs. Norma Linton, also from Citizens for AIM, compares the exhibition to a parody of a Catholic Mass and highlights that the portrayal mixes elements from different tribes, angering many Native Americans who prefer their traditions to remain distinct.
Supporters, including current Chief Mike Gonzalez, defend the mascot as a majestic representation of fighting spirit that honors Native Americans. John Bitzer, a former Chief, asserts that Illiniwek portrays Indians positively, unlike other caricatured mascots. Rep. A. Webber Borchers, who created the costume, claims it is a respected tradition with no intent to offend.
However, growing protests since 1975 have led to increasing calls for the mascot's removal, including formal requests from the Peoria Tribe of Indians. A group of university faculty and a graduate teaching assistant, referred to as "plaintiffs," argue that Chief Illiniwek fosters a hostile environment for Native American students and spreads inaccurate information. They have engaged in various forms of protest, including public speeches and letter writing, without interference from the university, until they expressed intentions to contact prospective student-athletes about the controversy. This prompted the university to take notice, leading to inquiries about NCAA rules regarding faculty contact with prospective student-athletes.
On March 2, 2001, Chancellor Michael Aiken sent an email addressing concerns about unauthorized contacts with prospective student athletes at the University of Illinois, emphasizing compliance with NCAA and Big Ten rules. He outlined that only authorized personnel could engage with potential recruits, and violations could lead to serious sanctions for the university. The email designated Mr. Vince Ille as the contact for questions regarding these regulations. Following the directive, plaintiff Frederick Hoxie inquired about his ability to communicate with prospective student-athletes, expressing concerns about the directive's implications for discussing Native American issues. Subsequently, on March 8, Ille sought clarification from the NCAA on the applicability of its rules to various forms of communication related to athletics with selected individuals. The NCAA responded on the same day.
NCAA recruiting regulations aim to safeguard prospective student-athletes from undue pressures that could hinder their academic or athletic interests and to ensure fairness among member institutions in recruiting. Contacts made by institutional staff to prospective student-athletes based on their athletic abilities or to discuss athletic participation are classified as recruiting contacts and must comply with NCAA regulations. Specifically, if a staff member initiates communication—whether by phone, in-person, or written correspondence—related to a prospective student's athletics, it constitutes a recruiting contact. Ille clarified that this applies in four scenarios: identifying a prospective student-athlete for athletic participation, addressing athletics-related issues, discussing potential participation in athletics, or when requested by an athletics department member.
Chancellor Aiken reiterated these points in a faculty Senate address, emphasizing the university's commitment to free speech and academic freedom while adhering to NCAA regulations. Aiken noted the extensive nature of NCAA rules regarding contacts with prospective student-athletes, referencing the NCAA Division I Manual's 480 pages. He instructed that communications regarding prospective athletes should only occur with authorization from the Director of Athletics or their designee, reflecting established campus policy. Aiken also highlighted advice sought from compliance officers and legal counsel, reinforcing the expectation for faculty members to express their views without breaching NCAA rules. He acknowledged receiving emails with hypothetical questions about First Amendment rights but deemed such debates unproductive at this time.
Aiken's initial directive regarding contact with prospective student-athletes was broader than the NCAA's response, encompassing both students and staff and applying to all potential interactions with prospective athletes. Mr. Ille maintained that the preclearance directive covered any contacts related to athletics and required notification of intended discussions. The plaintiffs viewed these directives as infringements on their free speech rights, leading to a lawsuit filed on March 22. Following a hearing, Judge Michael M. Mihm granted a temporary restraining order (TRO) on April 6, 2001, preventing enforcement of the preclearance directive.
Subsequently, Chancellor Aiken issued a retraction on June 5, 2001, modifying his earlier statement to eliminate the requirement for express authorization from the Director of Athletics for contacts with prospective athletes, while reaffirming the University's commitment to NCAA rules. Despite this retraction and Aiken's resignation, the case continued. The district judge ruled in favor of the plaintiffs, declaring the March 2 e-mail a violation of their First Amendment rights and awarding nominal damages of $1,000 and attorney fees.
The main legal question is whether the March 2 e-mail infringed on the plaintiffs' First Amendment rights, with a secondary issue regarding Aiken's potential entitlement to qualified immunity due to unclear law at the time. Although the retraction rendered the request for injunctive relief moot, claims for declaratory relief and damages remain valid, allowing the case to proceed to the merits.
The speech in question pertains to a matter of public concern, necessitating a balancing test to determine the merits of the dispute. The parties differ on which legal test to apply: the Pickering test from Pickering v. Board of Education or the NTEU test from United States v. National Treasury Employees Union. The Pickering test addresses post-speech punitive actions against an employee, while the NTEU test applies to prior restraints on speech.
In Pickering, a public school teacher was dismissed for criticizing the school board, with the Court ruling that the dismissal was improper after weighing the interests of the employee against those of the state. Connick v. Myers further clarified what constitutes matters of public concern. On the other hand, the NTEU case involved a law prohibiting federal employees from receiving compensation for speech, where the Court highlighted that prior restraints carry a heavier burden than isolated disciplinary actions. The government must prove that the interests of potential audiences and a wide array of employees are outweighed by the impact of the speech on government operations.
Chancellor Aiken contends that the broader context of the NTEU case does not apply here, advocating for a Pickering analysis. However, it is argued that the university’s directive represents a significant restriction on speech affecting 44,000 individuals, including students, thus warranting an NTEU analysis. This rationale aligns with previous cases, such as Milwaukee Police Association v. Jones, where a directive banning all complaints against officers was deemed to necessitate the NTEU test due to its broad prohibition on speech rather than a response to specific prior speech.
The NTEU balancing test requires assessing the university's perceived threat from speech, which it views as an attempt to harm its athletic recruiting to pressure the university into abandoning the Chief Illiniwek mascot. The university asserts a compelling interest in complying with NCAA rules to protect its athletic program, particularly due to past experiences with NCAA sanctions. NCAA enforcement can impose various penalties, including recruitment termination, athlete ineligibility, and even institutional staff termination for serious violations. The university emphasizes its desire to prevent sanctions, protect prospective athletes from undue pressure, and maintain an efficient recruiting process.
Conversely, the plaintiffs argue their speech aims to highlight the negative impact of the mascot on Native American students and is directed at a public audience outside the workplace. They claim their intent is not to harm the university but to advocate for a more inclusive environment. The plaintiffs express urgency in their actions due to the NCAA's timing restrictions on recruiting activities, noting that university officials could delay communication approvals until after the recruitment period.
Given the significant prior restraint on speech, it is crucial to evaluate whether the speech's impact on the university's operations outweighs the plaintiffs' right to free expression on a public concern. The NCAA's disapproval of the speech does not dictate First Amendment considerations, particularly since its mission does not align with the speech's purpose. The plaintiffs have been informed by the NCAA that they can communicate about the Chief Illiniwek issue without risking sanctions. Even without this assurance, doubts remain about the NCAA's willingness to impose penalties in this context, especially given the broader trend of universities changing offensive mascots. Ultimately, if the university were to face sanctions based on the plaintiffs' actions, that interest in preventing sanctions would not necessarily outweigh the legitimate interest in protesting potentially racially offensive behavior.
The plaintiffs, members of a public university community, have a significant free-speech interest in addressing perceived racial stereotyping, which is not diminished by concerns over potential disapproval from an athletic association. The district court correctly determined that the plaintiffs' free-speech rights were violated by a preclearance directive. Chancellor Aiken's claim of qualified immunity is rejected; he failed to demonstrate that his actions did not infringe upon clearly established constitutional rights, as public employees have retained free speech rights on public matters since key court decisions in 1968 and 1995.
Aiken contested the award of attorney fees on the basis that the request was filed one day late. Although the Federal Rules of Civil Procedure typically require motions to be filed within 14 days, the local rule allows for a 30-day period. Aiken's fee petition was filed on the 31st day, but the district court accepted it due to excusable neglect, which Aiken disputes. The court's discretion in determining excusable neglect considers factors such as potential prejudice to the opposing party and the reason for the delay. The one-day delay resulted from an error in calculating the filing period, which was not in bad faith and did not impact the judicial proceedings. The appellate court found no abuse of discretion in allowing the late petition, affirming the district court's judgment.
The excerpt includes various notes and observations related to university nicknames and controversies surrounding them. It highlights that Quentin Tarantino featured the nickname "Banana Slug" in his film "Pulp Fiction," emphasizing its uniqueness. The University of North Dakota's retention of the "Fighting Sioux" nickname is discussed, noting a significant financial influence from an alumnus on the construction of a $100 million ice hockey arena. The text mentions ongoing debates regarding the nickname, especially in light of the NCAA's stance on such issues.
The excerpt also touches on internal university politics, referencing disagreements between faculty members and a teaching assistant over their roles. It notes the resignation of Chancellor Nancy Cantor amid controversies surrounding the Chief Illiniwek mascot, which has faced criticism for being disrespectful to Native American culture. Faculty members have expressed objections to the mascot, leading to protests and calls for action, including a desire to discourage athletic recruits due to the mascot's portrayal. The university administration, particularly Chancellor Aiken, issued guidelines restricting contact with potential recruits to ensure compliance with NCAA regulations, warning of serious sanctions for violations. All members of the university community are expected to adhere to these rules, with compliance inquiries directed to the Assistant Director for Compliance, Mr. Vince Ille.
The district court found the Chancellor's directive constituted an unconstitutional prior restraint on speech, issuing a temporary restraining order and awarding $1,000 in damages plus attorney's fees to each plaintiff. The appellate court's key issue is determining the appropriate balancing test for evaluating the Chancellor's directive on state employee speech: whether to apply the Pickering/Connick test or the stricter scrutiny from NTEU. The dissent argues that the court improperly categorizes all prior restraints uniformly, failing to consider the specific governmental interests involved. It emphasizes that the state's role as an employer allows for a different standard in regulating employee speech compared to that of the general citizenry. The dissent highlights the need for differentiated analysis, noting that traditional prior restraint standards are not suitable in employment contexts, where less stringent criteria have been consistently applied. It also distinguishes between a preclearance directive and a broad prohibition on speech, arguing that not all directives warrant heightened scrutiny under NTEU. The dissent references a relevant case, Milwaukee Police Assoc. v. Jones, to illustrate the difference between a preclearance directive and a sweeping ban on communication.
Jones addresses a complete prohibition on speech, contrasting it with a limited prepublication review of communications, as upheld in Weaver. The e-mail in question targets a specific category of speech directed at high school and junior college student athletes, remaining viewpoint- and content-neutral, and does not aim to censor any particular message regarding the Chief. The Preclearance Directive focuses on the timing and manner of communication related to NCAA rules rather than restricting speech rights such as leafleting or public debate. It promotes dialogue between potential speakers and the University to ensure compliance with regulations.
The D.C. Circuit has previously supported similar directives that encourage discussion prior to publication. The e-mail does not warrant heightened scrutiny under NTEU, which is reserved for broad bans on speech. Even if categorized as a prior restraint, the unique context of government employee speech requires different analytical standards than those applied in the private sector. The court's application of NTEU scrutiny is flawed, as it overlooks the established Pickering approach for employee speech, and relies on an oversimplified distinction between prior restraints and subsequent speech actions. This misinterpretation of legal standards is not aligned with the precedents set forth in Jones and NTEU.
The speech in question is recognized as a matter of public concern; however, the Directive does not constitute a broad prohibition. The court's assertion that the e-mail applies to 44,000 individuals at the University of Illinois overlooks the crucial distinction made by NTEU regarding the specific scope of speech that the government restricts. While the number of potential speakers at the University is noted, the case only involves plaintiffs who are University employees. The NTEU case, which involved nearly two million federal employees, did not hinge on the number of potential speakers but rather on the extent to which speech was deterred by a sweeping statutory prohibition on speech unrelated to official duties. This prohibition effectively prevented federal employees from receiving compensation for expressive activities, even outside work hours and unrelated to their government roles.
In contrast, the preclearance directive at issue does not limit the plaintiffs' rights to engage in various forms of speech related to the Chief controversy. Instead, it allows for a range of unfettered speech opportunities that the plaintiffs have utilized. The plaintiffs sought to leverage their employee status to influence their speech, intending to use University letterhead to communicate with potential student athletes to discourage them from attending the University. The Directive specifically governs the plaintiffs' actions as government employees, not as private citizens, and the NCAA warning addressed contacts with potential recruits by school officials. The NTEU case does not grant government employee speakers the right to amplify their speech by highlighting their official positions.
The case at hand distinguishes itself from the NTEU precedent due to the broader scope of potential speakers affected, the extensive deterrence against a wide range of expression, and the application of the prohibition to both the plaintiffs as government employees and as citizens. Unlike typical Pickering/Connick analyses that deal with post hoc disciplinary actions, this case presents a prior restraint context, which introduces unique challenges. Furthermore, the plaintiffs have not experienced adverse employment actions generally associated with Pickering/Connick cases. There is no established precedent for extending NTEU's heightened scrutiny to all prior restraint scenarios, as demonstrated in Jones, where courts have rejected such applications when the restraint is narrow and allows for alternative communication channels.
The Pickering/Connick balancing test is deemed appropriate here, as the communication avenues for the plaintiffs remain open. The test evaluates the interests of employees as citizens against the government's interests as an employer, with the latter holding significant weight. Courts are directed to consider government employers' reasonable predictions of potential disruptions, even when the speech concerns public interest. In this instance, the plaintiffs' intention to discourage prospective student-athletes from attending the University poses a clear risk of disruption, allowing government employers to take preventive measures. The Illinois legislature recognizes the importance of national athletic competition to the state's educational institutions, reinforcing the notion that any harm to recruitment efforts directly impacts the University's financial health.
Defendants argued that a state employee's refusal to promote a proposed change could lead to negative publicity and decreased morale, ultimately impacting profitability. The government has a vested interest in effective recruiting and compliance with NCAA regulations, which govern interactions between university representatives and prospective student athletes. Violations, even minor, can result in severe sanctions from the NCAA, including athlete ineligibility and game forfeiture. The University had previously faced major sanctions, prompting Chancellor Aiken to express concern over a letter-writing campaign that could breach NCAA rules.
NCAA regulations restrict recruiting activities by institutional staff, including faculty, and apply to general correspondence related to athletics. Before addressing the potential campaign, Chancellor Aiken consulted NCAA and Big Ten officials and sought legal advice to ensure compliance with NCAA rules. An NCAA expert later indicated that the campaign would likely not incur sanctions if the University was unaware or took reasonable steps to prevent it.
The core legal question is not the likelihood of sanctions but whether the email sent by Chancellor Aiken was a reasonable measure to avert anticipated harms. The email advised staff on the need for dialogue before making contacts with student athletes, thus demonstrating a proactive approach to compliance. This action is deemed reasonable and warranted, reflecting a government employer’s legitimate interests and the necessity of preemptive measures based on the information available to them. The careful inquiry and legal guidance sought by Chancellor Aiken support that the email was grounded in genuine concern rather than unfounded fears.
The balancing test evaluates the plaintiffs' rights as citizens to express opinions on public matters versus their rights as government employees. While their interests as citizens remain intact, allowing them to engage in numerous forms of public expression regarding the Chief controversy, the case centers on their desire to leverage their official status to enhance the impact of their communication with potential athletes. The court permitted plaintiffs to communicate as employees but did not require the University to disregard NCAA regulations or allow employees to use their official titles for this purpose.
The plaintiffs have utilized various channels to voice their opinions without disrupting University activities. The First Amendment does not obligate the University to remove time constraints dictated by NCAA rules for employee communication. Even if the court found validity in applying NTEU to this situation, qualified immunity protects Chancellor Aiken unless the plaintiffs prove that the law governing his conduct was "clearly established," which they have failed to demonstrate. The legal standard for determining whether the law was clearly established must consider the specific facts of the case rather than general principles. The plaintiffs did not cite closely analogous case law that could negate qualified immunity, and the argument that prior restraints are generally disfavored is insufficient. Chancellor Aiken acted cautiously in his decisions.
Consultation with attorneys and reliance on NCAA advice preceded the sending of the e-mail in question. The court's reliance on the Jones case to assert that the law was clearly established is misplaced, as Jones involved an outright prohibition on speech, whereas the e-mail imposed only time restrictions on communication without restricting other forms of expression. The plaintiffs retained the ability to engage in various forms of communication, such as writing letters to the editor or public protests. They failed to demonstrate the existence of closely analogous case law, which supports Chancellor Aiken's entitlement to qualified immunity.
The Pickering/Connick balancing test applies because the e-mail only restricts a narrow scope of communication by government employees and does not constitute a broad deterrent to expression. The government has compelling interests in recruiting efficiency, compliance with NCAA time constraints, and protecting prospective student athletes from potentially confusing communications. The e-mail allows for numerous alternative communication methods, which the plaintiffs have utilized. Furthermore, the court overlooks the University's significant interests in recruiting and fiscal responsibility, as well as the need to regulate potentially harmful communication to young athletes. The dissent calls for vacating the district court's judgment regarding the plaintiffs' request for declaratory relief and damages, and granting Chancellor Aiken's motion for summary judgment.
