In a majority decision, the 7th U.S. Circuit Court of Appeals has affirmed a district court ruling and found that an email sent by a university chancellor to faculty, which warned faculty not to contact prospective student-athletes about the university’s alleged racial insensitivity, violated the faculty’s First Amendment rights to free speech.
In his email, University of Illinois Chancellor Michael Aiken wrote that such communications risked exposing the university and its athletic department to scrutiny by the NCAA for recruiting violations.
The actions that led to the litigation occurred in 2001 when administrators learned that some faculty planned to contact prospective student-athletes. Specifically, they wanted to inform them of the controversy over Chief Illiniwek, the school’s Native American mascot, and the implications of competing athletically on behalf of a university, which they said employs racial stereotypes.
It was at this point that Vincent Ille, the assistant AD, asked the membership services coordinator of the National Collegiate Athletics Association (NCAA) whether NCAA rules applied to contacts by faculty members with prospective student-athletes.
Before Ille could get a response, Aiken sent the e-mail to the faculty that precipitated this lawsuit. The email read:
“Questions and concerns have been raised recently about potential contacts by employees, students or others associated with the University with student athletes who are being recruited by the University of Illinois. As a member of the National Collegiate Athletics Association (NCAA) and the Big Ten Athletic Conference, there are a number of rules with which all persons associated with the University must comply. For example, the NCAA regulates the timing, nature and frequency of contacts between any University employee and prospective athletes. It is the responsibility of the coaches and administration in the Division of Intercollegiate Athletics to recruit the best student athletes to participate in varsity sports at the University of Illinois. No contacts are permitted with prospective student athletes, including high school and junior college students, by University students, employees or others associated with the University without express authorization of the Director of Athletics or his designee.
“The University faces potentially serious sanctions for violation of NCAA or Big Ten rules. All members of the University community are expected to abide by these rules, and certainly any intentional violations will not be condoned. It is the responsibility of each member of the University to ensure that all students, employees and others associated with the University conduct themselves in a sportsmanlike manner.”
The email concluded by asking that questions be directed to Ille.
The faculty began responding to what it termed was a “pre-clearance directive.” Did this mean, for example, that the faculty could not contact prospective students?
Shortly thereafter, Ille got a response from the NCAA concerning his first email as well as a second one he sent.
The NCAA wrote:
“NCAA recruiting regulations are designed in part to protect prospective student-athletes from undue pressures that may interfere with their scholastic or athletics interest as well as to promote equity among member institutions in their recruiting of prospects. In this regard, if an institution either identifies and contacts a group of prospective students based on their athletics ability or contacts prospective students to discuss their athletics participation those contacts are subject to NCAA regulations. Therefore, as outlined in your questions, if an institutional staff member makes a telephone contact, an in-person off-campus contact or sends written correspondence to a prospective student to discuss his or her athletics ability or possible participation in intercollegiate athletics such contacts would be considered recruiting contacts and would be subject to NCAA regulations. Further, if an institutional staff member makes a telephone contact, an in-person contact or sends written correspondence to prospective students who have been identified based on their athletics ability such contacts would be considered recruiting contacts regardless of the content of the message and thus would also be subject to NCAA regulations. I hope this information is helpful. Please feel free to contact me if you have further questions.”
Relying on the NCAA’s response, Ille informed the faculty that the “pre-clearance directive” applied in four situations: “when a prospective student-athlete is identified for contact based on participation in athletics, if the contact is made to address any issue relating to athletics, if it is made to address the prospective student’s possible participation in athletics, or if it is made at the request of a member of the athletics department.”
This went too far, according to a district court, which was asked to rule on a temporary restraining order (TRO). After it approved the TRO, Aiken retracted parts of his previous message to the faculty. This was not enough as the court was presented with a request for declaratory judgment. It granted summary judgment to the plaintiffs, awarding nominal damages of $1,000 to the plaintiffs and attorney fees. The chancellor appealed.
In its review, the panel turned to two balancing tests set forth in Pickering v. Board of Education, 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968) and United States v. National Treasury Employees Union, 513 U.S. 454, 130 L. Ed. 2d 964, 115 S. Ct. 1003 (1995) (NTEU) for guidance. “Pickering applies to speech which has already taken place, for which the public employer seeks to punish the speaker,” wrote the court. “NTEU applies when a prior restraint is placed on employee speech.”
After finding that “Aiken’s directive is a broad prohibition on speech on a matter of significant importance and public concern,” the court found NTEU to be the appropriate test.
“When using the NTEU balancing test, we look first to the interest the university sees threatened by the speech,” wrote the panel. “In its view, the purpose of the speech was to harm the university’s athletic recruiting in order to pressure the university into dropping Chief Illiniwek as mascot. The university says it had a compelling interest in adhering to the rules of the NCAA to protect its athletic program, that program being of particular importance to the university.”
The plaintiffs’ argument for the speech was that seek to make the university a better place “free of a mascot that mocks the religious rituals of Native Americans.”
“Because we are dealing with a significant prior restraint on speech, we must determine whether the impact of the speech on the actual operation of the university and its athletic program outweighs the plaintiffs’ right to free expression on the matter which is, as we have noted, a clear issue of public concern.
In weighing this question, the panel, interestingly enough, noted that threat from the NCAA was milder than it was being characterized by the defendant.
“(O)ne surely could doubt that the NCAA would venture to overstep its bounds in this manner and be seen as protecting an individual university’s questionable mascot when so many other universities have changed theirs,” wrote the panel. And even if a sanction seemed assured based on the plaintiffs’ activities, “it does not necessarily follow that the university’s interest in preventing a sanction would outweigh a legitimate interest in protesting allegedly racially offensive behavior.”
“We conclude that the district court correctly found that the plaintiffs’ free-speech rights were infringed by the March 2 pre-clearance directive.”
Crue et al. v. Aiken, 7th Cir., Nos. 02-3627, 03-2281 & 03-2951, 6/1/04
Attorneys of Record: (for plaintiffs) Harvey M. Grossman of the Roger Baldwin Foundation of the ACLU in Chicago, IL. (for defendant) Timothy S. Bishop of Mayer, Brown, Rowe & Maw in Chicago, IL.