Cydney A. Crue, John M. McKinn Debbie A. Reese, Brenda M. Farnell, Frederick E. Hoxie, Stephen Kaufman, and Philip W. Phillips v. Michael Aiken

in this court and ceedings the latter han- Cydney CRUE, implementation

dles after our A. McKinn, decisions. John M. Reese, It is unclear whether the Debbie A. Attorney Farnell, General Brenda M. seen, Hoxie, Stephen Solicitor General let alone Frederick E. Kauf man, approved, recently Philip the documents Phillips, filed W. Plain State and local tiffs-Appellees, names. institutions may governmental responsibilities allocate they please, they may but not take AIKEN, Michael Defendant-Appellant. shelter behind allocations that leave no one fully responsible procedures 02-3627, when those 03-2281, No. 03-2951. noncompliance judicial lead to orders United States Court of Appeals, and woebegone papers filed in litigation. Seventh Circuit. Systemic problems require systemic so- Argued Feb. 2004. option lutions. One is to instruct the dis- Decided June 2004. open trict court proceedings to deter- responsible mine who is for the state’s order, comply

failure to with its and to

impose appropriate penalties for contempt better, however,

of court. Even would be adoption procedures within the legal bureaucracy

state’s to ensure that problems

these do not recur. We invite Attorney General and the State’s At-

torney explain, days, within 21 what

they think can be done in lieu of contempt

proceedings. Given the failure of the as- AM.,

surances made to us in Carroll and

any proposals must be concrete rather

than general promises to do better next go

time. It should saying without (though prudent say seems it anyway) that an step rebuilding

essential good the state’s

reputation is the swift resentencing of

Gregory Madej in compliance with the writ September

issued in

Harvey M. (argued), Roger Grossman ACLU, Inc., Baldwin Foundation of Chica- IL, go, for Plaintiff-Appellee. Timothy Bishop (argued), S. Nicola Jackson, Mayer, Brown, Man, Rowe & IL, Chicago, Thomas, Michael R. Cornyn, Mamer Haughey, & Champaign, IL, for Defendant-Appellant.

Ann D. Springer, American Association of University Professors, Washington, D.C., Curiae, for Amicus American Associ- ation of University Professors. Finkin, Matthew W. University of Illi- Law, College nois Champaign, IL, for Curiae, Amicus University of Illinios. BAUER, MANTON, Before EVANS, Judges. Circuit EVANS, TERENCE T. Circuit Judge. case, raising This First Amendment is- sues involving Illinois, Uliniwek,” who, concerns “Chief depending view, point one’s is either a mascot symbol university. More on this first, distinction later but getting before hand, the issue at we detour for a brief Grizzlies, Griffins, Golden Gophers, Golden em- and their nicknames college look at Hurricanes, Gusties, Gold- Golden Golden mascots. bodiment Lions, Pan- Golden Knights, Golden en Circuit, large some In the Seventh Rams, Seals, thers, Golden Golden Golden Purdue (Badgers), schools—-Wisconsin Suns, Tornados Tigers, Golden Golden (Hoosiers), Notre (Boilermakers), Indiana cheering on their teams. (the Irish), (The DePaul Fighting Dame Demons), University of Evans- Blue that, obvious quite All this makes Aces), Illinois and Southern (Purple ville nicknames, one college considering when would (Salukis) nicknames —have frogs get prince. a lot of must kiss cool. pretty that are of ones list make major princes. For are a few But there no in this circuit are And small schools universities, pressed be hard one would department. nickname in the cool slouches (Ala- The Tide like Crimson gems beat the beating time a hard have One would (Arkansas), Billikens2 bama), Razorbacks College Quakers of Earlham Hustlin’ (TCU), (St.Louis), and Ta- Frogs Horned Indiana), of (Richmond, the Little Giants Carolina). it, (North as we see But rheels Indiana), (Crawfordsville, College Wabash take cake when schools the some small University-Pur- of Indiana Mastodons anyone ingenuity. Can to nickname comes (Fort Wayne, Wayne University-Fort due University of of top the Anteaters of the Indiana), Hawks and the Scarlet California-Irvine; Hardrockers of the Technology. of Institute Illinois of and Tech- Dakota School Mines South nick- have mundane most schools But City; Humpback Rapid nology unique when can one feel names. How Alaska-South- of Whales of (43 differ- Tigers is your school’s nickname (we par- are east; Judges particularly (40 universities),1 Bulldogs colleges or ent one) University; of Brandéis tial to this (32), (33), Pio- schools), Lions Wildcats Stormy College; the (30 the Poets of Whittier each), (31), Cougars or Panthers neers University in Atlan- (25)? Oglethorpe how Petrels of (28), Knights Or or Crusaders Akron; or schools)? University of (56 ta; of the Zips mascots Eagles about (will changed schools, assume this nickname we do the Vixens these who for crowd, coed?) pretty of Sweet Briar goes the home up to fire if the best school all boring. pretty As wonderful generic Virginia? College —and however, col- are, give we best these their nicknames schools Some adorn University of nod to the nickname lege “Golden,” in- adjectives —like the fear Imagine Cruz. California-Santa Bears, Thus, Gold- Golden we see stance. travel there opponents who the hearts Buffaloes, Bobcats, Golden Golden en “Banana named imaginatively face (15 alone!), them Bulls, Eagles Golden Slugs”?3 Flashes, Flyers, Golden Golden Golden scores Although includes the movie Smargon Fiction.” compiled by Joshua Adam See list (film Roger Ebert scenes critic www.smargon.net/nicknames. unique book, The Great his 2002 gushes it in over a "Billiken”? in the world is

2. What shocking see Movies), certainly it was Travolta) (John Vega Vincent killer stone-cold unique- Slug's of the Banana 3. As evidence being Slug after wearing a Banana T-shirt ness, all the nicknames we offer this: (but picture end of at the Quentin "cleansed” from, director film acclaimed choose story you to see it of the the end appear in one selected it to — Tarantino distinction). classic, grasp "Pulp of his 1994 scenes memorable this brief overview From of school nick- him more mascot symbol, than or vice names, they versa, can see that we cover a lot of really is for others to decide. Suf- territory, very from the clever to the rath- fice to say opponents him to consider But unimaginative. thing fairly mascot, er one be a supporters while refer often although most are not at all contro- to him symbol. “debate,” as a howev- clear— versial, er, some are. Even the Banana Slug over the use of Native-American controversy. was born out of many For logos, mascots, names whether as sym- (ariolomax years, a slug banana dolicho- bols is not unique to the University of science) phalus to the only work was Illinois. unofficial mascot at UC-Santa Cruz.4 In Forty ago, years Marquette University 1981, the chancellor named the “Sea Lion” used a mascot named “Willie Wampum”— as the school’s official But mascot. some a crude Indian caricature huge pa- with a students would have none of that. Argu- (about pier-máché head 4 feet high!)—to slug that the represented some of the whip up the crowd at its games basketball strongest campus, elements of the like in support of its nickname —Warriors. flexibility nonaggressiveness, the stu- Marquette is now the Eagles. Golden pushed dents for and funded referendum a Similarly, the Stanford Indians the became

which resulted in a landslide win for the “Cardinal,” St. John’s transformed from Slug Banana over the Sea Lion. And so it Storm,” “Red Men” to “Red Miami of Ohio became the official mascot. moved from “Redhawks,” “Redskins” to

Not all mascot controversies are and Michigan Eastern went from “Hu- “fought” simply out as as the dispute was rons” “Eagles.” schools, Some most over Slug. the Banana brings notably (“Seminóles”) Which us to Florida State and the University of Illinois (the where its nick- the University of North Dakota5 Illini,” name is “Fighting the a Sioux), reference Fighting have resisted change. to a loose confederation of Algonquin Indi- And so has the University of Illinois. an Tribes that inhabited the upper Missis- Chief Illiniwek traces his existence sippi Valley area when French explorers when, according to the University of journeyed first there from Canada in the site, Illinois web as assistant band director early century. seventeenth The universi- the having “conceived idea of a Native ty’s mascot, to mirror its nickname —or to American war dance performed at half- symbol its some “Chief Illiniwek.” —is time at Illinois-Pennsylvania the game.” Chief Illiniwek is controversial. And the A student, wearing “a homemade costume controversy remains today. unresolved complete with a war bonnet made of tur-

Chief participate feathers,” Illiniwek does not in key performed a dance half- activities, traditional cheerleading time, but he big which “was a hit.” According to “perform” does at athletic events. Wheth- News 23, 2001), (April the student er presence, his does, and what he makes mascot “peace also smoked a pipe” at half- slug.web.com. 4. See brewing name was in Grand Forks when a wealthy alumnus —who contributed $35 mil- quite 5. possible University It’s the of hockey lion to ice arena —threatened North Dakota "Fighting is still the Sioux" close project "Fighting down if the Sioux” arena, $100 because hockey its million ice logo nickna'me and related were retired. The which was under construction in de- 23, North Higher Dakota State Board pended Edu- According April on it. News, subsequently cation keep voted edition of NCAA "News & Fea- status tures,” a hot debate quo. over school’s nick- de- history as entertainment mascot, Indian “William Pennsylvania’s time with disgraces the and the Indian grades Penn.” ignorance by revealing white race web of the UIUC page the home From tribal cultures. chief to how the site, informed we are is tantamount exhibition “The Illiniwek named: was parody putting someone “Illiniwek” was first expression Linton, Mass,” Citizens Norma Catholic conjunction with used anthropol- visiting member and for AIM Zuppke coach Bob by Illinois football University said. She at the ogy lecturer philoso- Zup was mid 1920’s. Miniwek by saying Chief continued incli- training and historian pher composite. anis inaccurate con- nation, intrigued and he was Illinois area within the “The Indians held about peoples Mini cept the The idea tribal culture. of a different They spoke identity aspirations. different tribes from several symbols language and Algonquin dialect Indians,” she angers together mashed “Illiniwek” to refer to term used individ- not want their “They do added. ag- strong, being human complete —the distort- combined and customs ual tribal unfettered human body; human ile to remain ed, their traditions but want intellect; spirit. human the indomitable unique.” separate and underwent Illiniwek’s “costume” Chief Chief, Gonzalez, said the current Mike its settling on before revisions several con- being only requirement that the Similarly, present incarnation eagle is an position sidered dance, intricate involving footwork chiefs However, Gonzalez felt jump. spread split with fast, movements spinning symbol “majestic” and that Illiniwek is kicks, over changed has high jumps and way “In no does spirit. fighting of tak- changes were these years. While Indian,” Gonzalez the American degrade presence opposition ing place, some honors the Indi- Illiniwek “I think said. around began percolate the chief of an.” beginning around Urbana-Champaign, 1970-73, Bitzer, also Illiniwek from John 1975. university role. “Other defended could protest we signs earliest The Illini- just but caricatures mascots year- university’s 1975 in the appear find would they the Indians portrays wek book, this appears: where portrayed.” to be want R-Decatur, Borchers, Rep. A. Webber THE CHIEF TO A CHALLENGE while a the costume originator of spoke also University, as a hailed at the Illiniwek has been student Chief “It’s Illiniwek. University spirit since of Chief defense symbol of any uni- outstanding his tradition have cheered thousands most while But halftime, land, no intention of oth- with during versity in the gyrations acrobatic Indians,” he said. disgust. disrespect him with upon look ers sensed University officials have only of mockery not Illiniwek is “Chief symbol controversy. Illiniwek peo- Chief also white customs but Indian removed from was Fultz, Illiniwek of Chief culture,” Citi- Bonnie said ple’s year ap- stationary this University Indian Movement American for the zens Kissinger, coordina- AIM. Everett pease Ac- (AIM) member. executive board marching band Illiniwek and tor of Chief Fultz, use the continued cording to director, indignant was about the contro- athletes and inform them of the Illin- Chief versy. “Illiniwek has been a tradition controversy iwek and the implications of since and I don’t you here want competing athletically on behalf of a uni- people (reporters) up a lot of opening versity they which said employs racial it,” problems about he Kissinger said. stereotypes. got That university’s at- ordered turn has Gonzalez to avoid tention. large-scale publici- radio interviews and lile, Vincent the assistant director of ty about his role as Chief. athletics, asked the membership services sounds of protest The first over Chief coordinator of the Collegiate National Ath- grown Illiniwek 1975 have to a crescen- (NCAA) letics Association whether NCAA Many people today do. him find to be rales applied to by faculty contacts mem- offensive, including the Peoria Tribe of bers with student-athletes. Oklahoma, Indians of known collectively as Nations, just the Illiniwek or Illinois who later, days 2, 2001, Two on March years ago formally few voted to ask the chancellor of the university, defendant Mi- university stop using him as a mascot. Aiken, chael sent the e-mail which precip- And that today’s takes us to suit where a itated lawsuit. It this said: group faculty loose members and a Questions and concerns have been raised graduate teaching assistant6 at the univer- recently potential about contacts em- sity escalated the debate a little further. ployees, students or others associated group, whom we will simply call University with the with ath- student “plaintiffs,” claim that the chief creates a letes being who are recruited environment hostile for Native American University of Illinois. As a member of promotes students and that he dissemina- Collegiate National Athletics Associ- tion of inaccurate in an information edu- (NCAA) ation Big and the Ten Athletic setting. They expressed cational Conference, there are a number of rules opposition to Chief through Illiniwek with persons which all public speeches,. letter writing, meetings associated with groups, must by submitting comply. For exam- newspaper publication. ple, articles for They regulates the NCAA the timing, na- also attended meetings protesting ture and frequency of contacts between they what term is his use as a mascot. any University employee and prospec- university The has not with interfered tive It athletes. is the responsibility of of these activities. the coaches and administration in the Division of Intercollegiate Athletics to

It plaintiffs was not until the expressed recruit the best student par- athletes to contacting interest in prospective student- ticipate in varsity sports at the about the controversy athletes Universi- surround- ty of Illinois. No permitted Chief Illiniwek that contacts are university be- gan prospective athletes, to frown on with their The uni- in- activities. versity cluding was alerted by high junior to their school and college activities press 28, 2001, students, account on February University students, em- wherein plaintiffs some made known ployees their or others associated with the intention to contact prospective student- University express without authorization assistant, Crue, 6. teaching decision, Cydney The identi- of this necessary it is not us to student; herself fies as a Aiken defendant university politics. decide this issue of faculty claims she is a purposes member. For

CU os recipient correspondence where desig- 3. or his of Athletics Director his or upon based her is “selected nee. athletics” participation in serious potentially University faces Big or of NCAA for violation sanctions purpose “for the correspondence 4. of the Univer- All members rules. Ten to athletics addressing issues related to abide community expected sity prospective or the student-athlete’s any intentional rules, certainly these intercollegi- in participation possible It is the will not be condoned. violations ate athletics” of each member responsibility off-campus contact where in-person 5. students, all University to ensure.that upon “selected based recipient associated and others in athletics” participation his or her in a themselves conduct contact “for off-campus in-person Questions about manner. sportsmanlike re- addressing issues purpose Mr. be' addressed the rules should prospective or the lated to athletics for Com- lile, Assistant Director Vince partic- possible student-athlete’s Administration Bielfeldt Athletic pliance, intercollegiate athletics” ipation Street, Cham- Fourth Building, 1700 S. (217) 333-5731, E-mail: n IL paign, day: replied the same NCAA ille@uiuc.edu. recruiting regulations are de- university administration Immediately, prospective stu- signed part protect of what the reach questions about received pressures that undue dent-athletes from di- “preclearance accurately termed was or may with their scholastic interfere directed Asso- Aiken Chancellor rective.” promote as to interest as well athletics to oversee Larry ciate Mann Chancellor institutions equity among member inquiries. responded as he Mr. Ule In this recruiting prospects. their o,f out, went day Aiken’s e-mail The same identifies if an either regard, institution Aiken, Hoxie e-mailed Frederick plaintiff stu- prospective group and contacts prospective to advise his desire stating ability or on athletics dents based university’s unre- student-athletes to- students discuss prospective contacts of Native to the concerns sponsiveness con- participation those their athletics thought Hoxie said he' Americans. subject regulations. to NCAA tacts are him from directive barred preclearance Therefore, questions, your as outlined students, and he writing makes member if an institutional staff for guidance. asked contact, in-person off-cam- telephone request, a week after Hoxie’s Almost correspon- written pus contact sends NCAA, writing, in lile asked March to discuss prospective dence to a ap- its rules as to whether guidance ability possible or or her athletics his specific six situations: plied in intercollegiate in athletics participation recipient re- telephone calls where considered 1. would be such contacts par- subject or her on his is “selected based would be cruiting contacts and Further, in ticipation athletics” if an insti- regulations. NCAA telephone makes a member tutional staff purpose telephone calls “for sends contact, contact in-person athletics or related to discussing issues prospective correspondence written prospective student-athlete’s or the been identified based have intercollegi- in students who participation possible ability such contacts on athletics ate athletics” recruiting would be considered contacts of the Director of desig- Athletics or his the content regardless message nee, who experience in these is- subject and thus would also be to NCAA sues. This is policy the same that this hope I regulations. this information is campus consistently reg- has followed in helpful. Please free to contact me if feel ulating with prospective contacts stu- you questions. have further dent-athletes. receiving After response, the NCAA I have sought from advice the DIA com-

March Ille informed Hoxie that officer, pliance Ille, Vince and Legal applied directive in four situations: when a Counsel on this issue. Mr. Ille also prospective student-athlete is identified for consulted with the NCAA. participation athletics, contact based on expect We University members of the if the contact is any made to address issue community express their viewpoints athletics, relating to if it is made to ad- without violating NCAA rules concern- prospective dress the student’s possible ing contacts with student- participation athletics, or if it is made at athletes. such opportunities Numerous the request of a member of the athletics abound, including editor, letters to the department. press releases, interviews, leaf- radio/TV On March the statements from his e- leting, public and speeches. Various mail were essentially reiterated Chan- faculty and members others have availed cellor Aiken in an address to the faculty opportunities themselves of these over Senate: years. values and defends the Let me point: address one other we principles of free and academic have received some e-mails in response freedom for of the University members my to March 2 that pose e-mail a series community. hypothetical questions about the First The University does not seek to inter- Amendment other Engag- and issues. fere with expression regard- views ing a debate at this time about such public matters of concern. Howev- hardly matters helpful produc- seems er, we also NCAA, are member of the tive. and are to controlling committed our ways, two Aiken’s statement was intercollegiate program athletics in com- broader than the response: NCAA it ap- pliance with regulations the rules and plied to members, students well as staff NCAA. and it applied to all prospective contacts This expect means that we members of with prospective student-athletes. Simi- the University community respect larly, Mr. Ille did limit the reach of the rules, certainly not intention- preclearance Rather, directive. he said it ally violate them. applied contacts made pur- “for the As explained my e-mail of March pose of addressing any issue related to there are numerous and detailed NCAA athletics.” Ille persons insisted that in- regarding rules by faculty contacts tending to contact prospective athletes in- other University representatives with form him they of what going were to prospective student-athletes. talking about. NCAA Division I Manual itself is 480 pages long. why That is my e-mail ad- These statements were by seen vised that such contacts should oc- plaintiffs as restraints on their free- cur only with express authorization rights they so filed this lawsuit on

677 rules, please concerning tions the Honor- judge, 22. The district March lile, Di- contact Mr. Vince Assistant Mihm, hearing after a Michael M. able of Compliance, for at the Division rector 2001, re- 4, plaintiffs’ granted April Intercollegiate you. Athletics. Thank restraining temporary and issued quest (TRO) The TRO days later. two order (which retraction rendered Despite the enforcing from chancellor enjoined the moot) of a appointment the TRO and entry of After directive. preclearance chancellor,7 proceeded. the case new part TRO, Aiken retracted Chancellor summary judge ultimately entered district in a second e-mail original e-mail of his plaintiffs request on their judgment for 5, 2001: June sent the di- declaratory judgment for a ' 2001, 2, I recall, may on March youAs their First Amendment rective violated asso- message persons an e-mail sent damages nominal rights; he ordered regarding University ciated with the Crue, $1,000 Cydney Brenda plaintiffs Ath- with Potential Student “Contact Hoxie, Kaufman, Farnell, Stephen stated, message My e-mail letes.” Philip Phillips plus attorney’s fees to them permitted “No contacts part, that: parties. Chancellor Aiken prevailing as athletes, in- appeals. college junior cluding high school merits, before us is On the the issue students, students, University em- 2 the March e-mail violated whether with the others associated ployees or A rights. First Amendment sec- plaintiffs’ authorization express without Aiken, ondary issue is whether Chancellor desig- or his Director of Athletics of the is entitled to capacity, in his individual However, light Judge nee.” immunity the law at the qualified because 6, 2001 and more April Mihm’s order clearly did not time the e-mail was force testimony by representatives recent Amend- that it violated the First establish Collegiate Athletic Associa- the National summary grant review a ment. We (NCAA), that ex- I have concluded tion judgment de novo. the Director of authorization of press not be designee matter, or his should Athletics we will preliminary As a date, Therefore, this required. effective that this action must be mention the claim retracting the above- permanently I am offending e as moot because the dismissed 2, e- my March sentence of quoted retracted and Chancellor mail has been message. mail Those facts render resigned. Aiken has moot; injunctive for relief request above-quoted lan- The retraction of the declaratory re however, requests does not my from earlier e-mail guage aWhen damages and for remain. to lief University’s commitment lessen the injunctive relief is barred but claim for rules in the re- with NCAA complying remains, declaratory damages claim for athletes at the Uni- cruitment of student damages to a predicate judgment call I continue to versity of Illinois. McDonnell, can survive. University com- award upon all members Wolff 41 L.Ed.2d 94 S.Ct. rules of the munity abide McCormack, (1974); Powell v. see also potential stu- dealing with NCAA when L.Ed.2d 491 U.S. you ques- athletes. Should dent Cantor, record, retiring Chief note, Nancy favors lor who the new chan- We off the Illiniwek, resigned that it was be- but denied resigned. According to the cellor has now 26, 2004, Tribune, cause of the chief. Chicago February Chancel- 678 Publ’ns, Then, NTEU,

(1969); Inc. v. in Penny Saver Vil- the Court considered (7th Crest, constitutionality 905 F.2d 150 lage setting Hazel the of a law out a of Cir.1990). Accordingly, proceed we will prohibition broad on federal re- the merits. ceiving compensation making speeches for writing or articles. The noted that Court that speech is no doubt the There Pickering the fit quite test did not the public concerns a matter of here involved Pickering situation before it. NTEU said And so decide the merits of concern. post analysis employ- involved a hoc of one perform balancing must a dispute we speech ee’s impact employ- its on however, disagree, what parties The test. public responsibilities. ee’s The ban in applied. Is it the one set test should be prior NTEU was in the nature of a re- Education, Pickering out in v. Board of on large people straint a number of on a 1731, 563, 391 88 S.Ct. 20 L.Ed.2d 811 U.S. multitude of issues. The Court determined (1968), or the one announced in United that, imposing prior when restraint on Treasury Employees v. States National employee speech, government has Union, 454, 1003, 115 S.Ct. 130 greater burden than making when it is an (1995) (NTEU)? L.Ed.2d 964 Both cases employment pri- isolated decision. aWith scope and their tests concern the of free- restraint, government must demon- speech enjoyed by public employees. rights strate that Pickering applies oversimplify, To already speech place, which has taken potential the interests of both audiences public employer punish which the seeks to and a group present vast of and future speaker. applies prior NTEU when a employees in a range present broad on placed employee speech. restraint and future expression outweighed by are simple enough, That distinction seems but expressions’ “necessary impact on course, all things legal, like almost there the actual operation” of the Government. ways argue about where the divid NTEU, 513 U.S. at ing line should be. quoting Pickering, 391 U.S. at Pickering Court struck a balance S.Ct. 1731. employee, between the interests of the as a citizen, commenting upon matters of Chancellor Aiken points out that public and the concern interest restraint in NTEU was broader State, employer, therefore, an than promoting argues, the one here. He efficiency public performs services it that we Pickering analysis. must use a through employees. Pickering disagree. its was a We considering We are not teacher in a school public university who wrote whether the improperly disci letter to a local newspaper criticizing plined single an individual for a statement. handling though school board’s bond issue. Even in scope there are differences him employ- enormously board dismissed from between thé wide ban balancing here, ment. After respective NTEU and the one Ai Chancellor that, rights, the Court determined ken’s directive is a prohibition broad it, situation im- significant impor before dismissal was on a matter of proper. Myers, public applied Connick U.S. tance and concern. It 138, 140, 44,000 university S.Ct. 75 L.Ed.2d 708 members of the commu (1983), nity, including scope Court further fleshed out its students. The broad view of public what constitutes “matters of the March directive we requires, think, analysis concern.” under the NTEU test. And bylaw 19.6.2. NCAA test in a staff members. NTEU the applied We case, fact, Big Ten in NCAA and in this which prior a restraint involving ease that Aiken informed Chancellor In Mil officials us. before to the one now similar Jones, rules covered communications 192 the NCAA Police Association waukee from enroll- athletes designed to dissuade (7th Cir.1999), Ar Police Chief F.3d pro- to university. In addition in the to his officers directive issued a Jones thur sanctions, university tecting from the any itself discussing with forbidding them from protect prospective to says also it wants representatives, union one, including their to main- pressure and athletes undue they might from complaint or any verbal written recruiting program. Later, an efficient the tain another officer. against make expanded and clarified was directive their plaintiffs assert part, For the their police depart in the officers subordinate the convincing long-standing interest test was that the NTEU We found ment. Illiniwek hurts that Chief administration the directive banned because appropriate creating a university by, example, for the not an isolated it was generally; speech American for Native hostile environment uttered previously to response disciplinary “ad- speech is plaintiffs’ students. The speech. ... made public a audience dressed to and con- workplace, involve[s] outside the balancing the NTEU using When government to unrelated largely tent uni test, to the interest the we look first NTEU, 513 U.S. at employment.” speech. the versity sees threatened They say they do to view, speech was of the purpose the its to but seek university the intend harm recruiting athletic university’s harm a mascot place “free of make it a better drop into university pressure order of Native religious rituals mocks uni mascot. Illiniwek as Chief ping have an They say they also Americans.” compelling a versity says it had interest activity of their the timeliness interest of the NCAA adhering to the rales timing rules limit the NCAA because program program, athletic its protect preclearance recruiting activity. The uni importance being particular for the not have schedule directive does university, having had versity. The proposed communications. review of with NCAA sanc experience unpleasant Therefore, Mr. Ille from nothing prevents with tions, concerned particularly was of their communications delaying approval It out that the NCAA points rales. NCAA recruiting season is until the over. rules authority to enforce its has broad signifi- dealing we are Because and athletes to sanction institutions must speech, on we prior restraint can cant minor violations it violations. For impact whether of determine recruitment an institution’s terminate uni- operation on the actual athlete, speech ath ineligibility on an impose outweighs program versity its athletic lete, the institution to forfeit require on expression free fine, right to violation, plaintiffs’ impose a for a rules game noted, is, as we have matter which aid the financial reduce number or First, we public concern. clear issue grant. can the institution NCAA awards might fact that the note that For more serious violations bylaw 19.6.1. ultimately cannot might not like probation, an institution place it can this. like Amendment issue re control a First year, for a recruiting efforts prohibit where, here, the true is especially it This of financial aid awards the number duce is not related mission of the NCAA terminate institutional grant, and even can speech. perform discretionary long of the It would seem that functions so as purpose reasonably university clearly should “their conduct does not violate es- response further the NCAA questioned statutory rights tablished or constitutional speech at is- prohibited that its rules person of which a reasonable would have easily plaintiffs The were able sue. Fitzgerald, known.” Harlow v. real that there was no threat 800, 818, determine 73 L.Ed.2d 396 university penalized (1982). would be- that the establishing The burden in that a to an response cause of their activities. clearly right is established falls on the inquiry, plaintiffs the NCAA stated to the Lund, Gregorich v. plaintiff. 54 F.3d 410 may, they causing that without sanction to (7th Cir.1995). right clearly Whether a is university, informing pro- send letters depends particular established on the facts spective student-athletes about the Chief Here, public employees of the case. that controversy. Even without that Illiniwek rights retain certain free assurance, surely that one could doubt public appar- matters of concern has been overstep would venture to its Pickering ent since the in decision bounds in this manner and be seen as in and NTEU added our voice We university’s an individual protecting ques- remarkably on a in similar situation Jones many tionable mascot when so other uni- in 1999. Chancellor Aiken sent his critical However, changed versities have theirs. e-mail in March 2001. He cannot reason- in were we faced with situation which the ably claim that the law was unclear. university way in some would be sanc- appeals Chancellor Aiken also from activities, plaintiffs’ tioned on the it based attorney the award of fees. He does not necessarily does not follow that the univer- award, amount contest the of the but rath in sity’s preventing interest a sanction er that request contends because the fee outweigh legitimate would interest day was one late should have been disal protesting allegedly racially offensive be- lowed. havior. 54(d)(2)(B) Rule of the Federal Rules of free-speech plain- The interest of says Procedure that Civil other- “[u]nless major public of a tiffs—members universi- provided by wise statute or order of the ty community questioning they what —in court, the motion must be filed no later stereotyping see as racial blatant is sub- ” days entry than 14 after .... judgment outweighed stantial. That interest is not clause, introductory Pursuant by might fear that an athletic association United States District Court for the Cen- approve they say. of what Further- tral District Illinois has issued a local more, something plaintiff if said requires rule petitions which fee to be filed student-athletes actionable days within 30 judgment. final itself, action, disciplinary subject and of petition in this case was filed on the 31st analysis, Pickering pursued to a could be day. judge untimely found that the university. reasons, For these we filing neglect was due to excusable court correctly conclude the district accepted petition. Chancellor Aiken plaintiffs’ found that the free-speech rights argues neglect this case was infringed by were 2 preclear- March not excusable. ance directive. 6(b) quali

Chancellor Aiken’s claim of Fed.R.Civ.P. allows for immunity Qualified fied enlargement expira also fails. immu of time after the nity protects liability specified from of the period civil those who tion “where the University, outside the people, result of excusable act was the failure to objected out actions to the use of years also sets The rule who have neglect.” in which there the rules cheer-leading certain of part under Illiniwek Chief is not Rule 54 granted. can be extensions events, foot- particularly at athletic effort Indeed, deter we have those. among notes, symbol this As the court games. ball jurisdic not 54 is that Fed.R.Civ.P. mined mockery is, things, labeled among other Fire Lafayette Johnson tional. See people’s white cul- Indian customs and (7th 472, F.3d 726 Local Fighters Ass’n students, faculty, and by ture. Criticism Cir.1995). modified It can and has been University cared at the who anyone else determining whether rule. by the local protests, and included was unrestricted of excusable ne filing is the result a late demonstrations, inter- radio and television looks to whether the district court glect, views, pub- to editors and articles letters opposing to the prejudice be there will many plaintiffs, in venues. To the lished judicial proceed the effect on the party, They enough. wanted this was delay, for the and whether ings, the reason for athletic recruits Uni- potential write to Pioneer good in faith. the movant acted discourage attendance versity and teams Assocs. Ltd. v. Brunswick Servs. Co. Inv. the the offensive use of Chief. because of 113 S.Ct. P’ship, 507 U.S. guarded the NCAA issued But when (1993). of a find Our review L.Ed.2d 74 potential with warning that direct contact an only is for neglect of excusable University officials could vio- by recruits & Robb v. of discretion. abuse Norfolk University the re- regulations, late NCAA (7th Co., 122 F.3d 354 Cir. Rwy. Western Aiken issued the e-mail acted. Chancellor 1997). in deference particular afford We part: stated in trial of the procedural matters because familiarity parties. judge’s with timing, regulates the ... [T]he case, delay was as short In this be- frequency of contacts nature and for it was day. The reason possible University pro- —one and employee tween 30-day period, calculating in an error responsibili- It athletes. spective embarrassing perhaps should which in administration the coaches and ty of surely cannot be attorney but which Intercollegiate Athletics the Division it faith. Nor can to have been bad said athletes the best student to recruit any effect on that there would be be said varsity sports at the Uni- participate as Ai- judicial particularly proceedings, per- are Illinois. No contacts versity of of time asked for an extension ken himself athletes, with mitted fee days respond of 60 to 100 college junior high school including matter, And, as a fundamental petition. students, students, University em- position to judge is in the best the district or others associated ployees are ad- proceedings decide whether express authorization University without find an abuse cannot versely affected. We desig- or his of Athletics of the Director to allow the in the decision of discretion nee. to be filed. petition potentially faces serious of the district Accordingly, judgment Big violation of NCAA sanctions court is Affirmed. of the Univer- All members Ten rules. MANION, dissenting. Judge, Circuit community expected are abide sity rules, certainly any intentional these at the faculty members plaintiffs, be condoned.... will not Illinois, violations among a number University of here) the rules should be ad- is the case than Questions applied about when to non- lile, governmental employees. Mr. Vince Assistant Di- It is clear that dressed to “the Compliance employer .... State’s interests as an rector for regulating speech of its ‘dif- ruled that court this was The district significantly fer from possesses those speech restraint on unconstitutional regulation connection with temporary restraining order. and issued ” Connick, citizenry in general.’ directive, Aiken retracted the Chancellor at (quoting U.S. 103 S.Ct. 1684 Pick- damage was done. The court but 1731). ering, 391 U.S. $1,000 damages plaintiff to each awarded squarely While this circuit has not ad- attorney’s fees. plus gradations pri- dressed the variations or I. government employee or restraints NTEU, context after it is that well settled question critical appeal, On before us prior traditional analysis inap- restraint balancing applies test is which propriate government where the un- acts regarding speech by Chancellor’s directive special authority employer. der its as an employees: balancing state test de- See, e.g., Weaver United States Infor- Pickering v. rived from Board Edu- 1429, Agency, mation 87 F.3d 1440 cation, 563, 1731, 88 S.Ct. 20 (D.C.Cir.1996). fact, In “courts have uni- (1968), Myers, L.Ed.2d 811 and Connick v. formly prior assessed restraints the set- 138, 140, 1684, 461 103 75 U.S. S.Ct. ting government employment by stan- (1983) (Pickering/Connick), L.Ed.2d 708 demanding dards less than those used for scrutiny approach or the of United strict prior traditional restraints.” Id. at 1443. Treasury Employees States v. National Union, Calling “preclearance the e-mail a U.S. di (1995) (NTEU). rective,” label, L.Ed.2d 964 need to We even if an accurate does not as to guidance height- offer clear when the that prior establish the e-mail a constitutes scrutiny ened of NTEU does and does not subject restraint heightened scruti apply. prior Instead the court treats all ny of in the government NTEU context of balancing gov- alike without employment. restraints The distinction between a at In relatively ernmental interests issue. effect the preclearance mild directive and a a rule pronounc- court creates new of law general prohibition broad in the ing applies that to all prohi- employment i.e., NTEU “broad a full-fledged context — government employee speech. prior bitions” on significant. restraint —is We have prohibitions” Such “broad are defined as yet in a published opinion address involving “large potential a number” of applies whether pre- NTEU eases of plaintiffs concerning a “signifi- matter of clearance directives and applied we have n importance.” cant For only these and the fol- reported involving NTEU one case reasons, (or I lowing respectfully dissent. sweeping, general a prior ban re

straint) on speech. See Milwaukee Police II. (7th Jones, Assoc. v. 192 F.3d Cir.1999). matter, an initial As both district court summarily and this court amplifies conclude Jones the differences between prior the e-mail is a restraint. preclearance a directive and a more label, however, signif- restraint a sweeping general has ban. a Jones addresses icantly meaning different when applied to ban on “all communication before it oc- (as the speech governmental curs.” Id. at 749. The Police Chief speak- merely potential reminds the e-mail police to all an order issued Milwaukee imposed by the time restrictions that if ers of the stating employees, department contacting prospective com- rules on or written a verbal made employee that in- com- It also cautions athletes. employee, against another plaint will not Id. at of these rules confidential. tentional violations to remain plaint had prototypical for- a fact, directive This is In the Chiefs condoned. be 744-45. calling from discuss- for a dia- members review complaining prepublication bade lawyer speakers potential matter logue with and/or between The ban appropri- Id. at 745. representative. University in order assess union speech. officers “are complaining timing for the ate emphasized manner the matter di- upheld not to discuss has similar instructed The D.C. Circuit added). gov- (emphasis dialogue Id. with anyone.” requiring rective Weaver, publication. See ernment before sum, prohi an actual addresses Jones Accordingly, the e- 87 F.3d including mere totality, speech in bition of heightened should not receive mail did not matter. Jones discussion NTEU, properly which Jones scrutiny of review of prepublication simple involve bans on all sweeping, general reserves for (hold Weaver, at 1443 87 F.3d speech. Cf. communications. Pickering and NTEU under ing valid In con speech). of directive were preclearance review if the prepublication Even total) (and broad, re- sweeping full-fledged prior properly trast to the labeled as Jones, the e-mail con- government employee at issue speech ban on in the straint merely applied text, speech to narrow on are here not restraints prior at issue all Jones, employees by University 192 speech analyzed of under the same test. band athletes analyses ap- only potential at at 749. Prior restraint directed F.3d jun high school or currently in do not private plaintiffs who were to sector plicable the e undisputed that college. government It is plaintiffs ior when apply content-neutral, see Weaver, and Id; mail is F.3d at 1440 viewpoint- 87 employees. Racism, U.S. Against (“There v. Rock reason to certainly logical Ward no 491 is 2746, 661 781, 791, 105 L.Ed.2d 109 S.Ct. of element that the existence of some think Inc., Theatres, (1989); Playtime Renton remove a restriction prior restraint should 925, 47-48, 41, 475 U.S. Picker- speech from the usual employee on (1986), to and is not intended L.Ed.2d 29 Here, however, the court ing approach.”). message, whether any certain censor balancing test traditional departs from the Ap- the Chief. See against in favor of or and in- government applied (“[T]he brief, Preclearance p. 19 pellee’s scrutiny heightened applies stead regard to without applies Directive closely re- more application This NTEU. communication, if the stu content of involv- restraints prior the test for sembles of his or her because dent is selected choosing plaintiffs. sector ing private athletics.”). participation test, scrutiny heightened the NTEU (1) when applies “NTEU reasons: court purport prohibit does not The e-mail employee on placed prior restraint leaflet, speeches, write make right (2) Directive “is the Preclearance speech”; editor, freely or letters to the debate/dis- on a matter speech on in a broad prohibition of the Chief cuss the merits demerits con- public and importance1 Instead, significant language of plain any forum. concern. Whether public speech involves a matter undisputed plaintiffs’ that the 1. It is (3) cern”; preclearance gory expression by directive a massive number of “44,000 467, potential speakers.” members of the univer- Id. at applied to S.Ct. added) (footnote omitted). Ante at sity community.” (emphasis 679. numbers, emphasis should not be on not reasons do suffice. The court These degree speech but rather on the to which acknowledges oversimplified na- even speech is deterred and the avenues of left applies conclusion that ture of its NTEU NTEU, open plaintiffs. at Pickering/ restraints and that to all 11,115 467 n. S.Ct. speech applies instances Connick only already place. taken Not is the congressional involved a broad NTEU oversimpli- before-and-after distinction prohibition prevented speech near- fication, but, clear, as Jones makes it is a ly employees (including two million federal Jones, misstatement of law. See 192 F.3d employees) lower-level from accepting NTEU, 749; also 513 U.S. at see compensation making speeches or writ- (O’Connor, J., concur- 115 S.Ct. 1003 articles, if even or article (“[RJeliance on the ring/dissenting) ex totally were unconnected to employee’s is not a post distinction substitute ante/ex official duties. Id. at 115 S.Ct. 1003. case-by-case application for the of Picker- prohibit The ban went so far as to a mail ing.”). receiving handler from compensation for giving speech Quaker religion on the speech clearly

And while the involves a an aerospace engineer being compen- from concern, public matter of the Directive is lecturing history. sated for on black Id. at clearly prohibition. a broad so sure, 115 S.Ct. 1003. To be NTEU applies court’s claim that the e-mail plaintiffs seeking involved 44,000 students, compensation faculty, and staff of the expressive “for their activities their ca- University ignores NTEU’s critical dis- citizens, pacity as not government as em- concerning scope speech tinction the of the (em- 465, ployees.” 44,000 Id. at 115 S.Ct. 1003 prohibited by government. the The added). phasis The at may accurately applied number reflect the entire ban issue to Illinois, population speech bearing of the of “off-hour no but nexus to Gov- far potential employment speech this case involves fewer ernment def- — speakers: only plaintiffs employed those inition does not relate to ‘internal office University. employee’s the affairs’ or the status as an em- (O’Con- ployee.” at Id. 115 S.Ct. 1003 so, nearly Even the fact there were nor, J., concurring/dissenting) (citing Con- potential speakers two million at issue nick, 1684). 461 at U.S. 103 S.Ct. NTEU, 481-82, at 115 S.Ct. 1003 (O’Connor, concurring/dissenting), contrast, J. In preclearance was stark the di- determining not the factor in the Court’s rective in this did not purport case to limit apply scrutiny. decision to strict plaintiffs’ right give speeches Nor the to con- 44,000 number, should the or a much cerning controversy, the Chief to write number, dispositive editor, smaller here. In participate letters to the in demon- focusing strations, addition to on the number of po- open etc. The e-mail left a wide tential plaintiffs, emphasized variety NTEU speech opportunities of unfettered “sweeping statutory impediment plaintiffs, to for the plaintiffs which the fre- speech,” opinion which the quently fully characterized used. Instead of availing as a “wholesale deterrent to a broad cate- many speech themselves of the alternative speech "significant importance" is of not should be of no concern to this court.

685 See, Belcher e.g., the rule.2 exception, to not intended plaintiffs opportunities, McAlester, 1203, 1206 integral City 324 F.3d an v. employee status their make (10th Cir.2003) Specifically, (rejecting request speech. n. 3 component potential letters prior to write restraint because they apply intended NTEU University letterhead athletes on open ample left was narrow and restraint University. at the discourage communication). attendance channels of alternate solely to applies directive preclearance The Likewise, from the this case is far removed em- government in their plaintiffs’ acts Pickeñng/Connick The facts of NTEU. plain- to the capacity, opposed as ployee appropriate test is because balancing warning citizens. tiffs’ acts as many alternate venues open leaves e-mail re- potential directed contacts was to communicate their plaintiffs for the not NTEU does by school officials. cruits fact, previously applied message. In we have employee right government establish rejected an ering/Connick Pick of their the influence to elevate speakers prohibitions apply NTEU to invitation gov- their official by emphasizing restriction on that are not a “blanket sum, at is- the ban position. ernment “alternate venues” are left speech” where vastly different than is NTEU sue plaintiffs’ communication. open for the pro- Aiken’s e-mail because Chancellor Helmke, F.3d See Messman significantly in NTEU involved hibition (7th Cir.1998). it potential speakers; number greater Pickeñng/Connick, proper Under to a deterrent broad involved whole-sale “a analysis requires balance between it both expression; applied category of citizen, in [employee], as a government as interests of the capacity plaintiffs con commenting upon public citizens. matters public and as State, and the interest cern restraint context It true that the efficiency promoting employer, typi in the present imposes problems through its performs public services in analysis which Pickeñng/Connick cal Connick, 140, 103 461 U.S. at employees.” disciplinary decision. post hoc volves Pickering, 391 U.S. at (quoting S.Ct. addition, Jones, at 750. In F.3d See 1731). government’s appli typical than the this case is different sovereign a mere acting as interest when Pickeñng/Connick because cation of subordinate, government’s inter but the is any adverse not suffered plaintiffs have one.” “significant is a employer as an est in the often at issue employment action Churchill, 661, 675, 114 511 U.S. v. Waters See, Pickering/Connick. application of (1994). In 1878, 686 128 L.Ed.2d S.Ct. 378, McPherson, v. e.g., Rankin balance, Supreme conducting this (1987). 2891, 388, 97 L.Ed.2d 315 give that we are to substan cautions Court authority ap there is no Regardless, rea government employers’ weight tial to re to all cases of NTEU plying disruption, even predictions Jones, sonable Ap F.3d at 749. 192 straints. See on a matter involved was speech when the of NTEU standard heightened plying 673-74, 114 S.Ct. Id. at public concern. is the employee speech to restrictions 454, 481, NTEU, U.S. 115 513 requirement the fact. See legal is no 2. There 1003, (O'Connor, J. L.Ed.2d 964 130 actually Picker- S.Ct. speech be delivered before is, concurring) (emphasizing that the dissenting, gov- applied. ing/Connick be That can not the determi- post distinction is weighed anticipa- ex in can be ernment's interest ante/ex heightened effect, triggering NTEU having native factor potential to without tion of scrutiny). impact of the after wait and review the 686 fact, Supreme cruiting. Compliance regula- Court has with NCAA predictions of concerning to reasonable dis- tions the quantity timing

deferred congressional by upholding ban ruption representatives contacts between Branch from tak- University prospective on Executive student ath- political campaigns part University. active letes is critical to the For Public v. management. Workers political “secondary,” “isolated,” even or “inadver- 75, 99, Mitchell, 67 U.S. S.Ct. 91 effects, 330 tent” “minimal” violations with (1947). L.Ed. 754 sanctions, wields an NCAA arsenal of stiff including terminating the school’s recruit- depositions reveal plaintiffs’ athlete, particular imposing ment of a ine- letter-writing cam- purpose behind athlete, ligibility requiring on an a school encourage potential paign was game impermissi- to forfeit a in which an the University. athletes not to attend We bly played, contacted athlete and fines. consistently permitted government 19.02.2.1; Bylaws See NCAA 19.6.1. The proactive take employers steps when University had been sanctioned three disruption by acts of em- facing obvious major shortly times for rules violations Ramirez, ployees. Sullivan v. 360 See before the tenure of Chancellor Aiken and (7th Cir.2004) (balancing F.3d 701 undisputed it is that Chancellor Aiken was disruptiveness” potential “the plaintiffs’ letter-writing concerned that the speech); Amesqua, v. 212 Greer F.3d campaign could violate recruiting (7th Cir.2000); Bitzer, Propst rules. (7th Cir.1994). F.3d The Illinois legislature declared national has athletic strictly recruiting NCAA rules limit ac- to the competition “essential” state’s tivities “institutional in- staff’ which finances. schools and ILCS “faculty Bylaw cludes members.” NCAA 25/2(c). Damage recruiting or other 13.1.2.3(a). The NCAA apply rules aspects program damage of the athletics “general correspondence related to athlet- University’s bottom line.3 See Bylaw ics.” NCAA 13.4.1. In order

Messman, 1047; 133 F.3d Lewis v. cf. faculty certain that the prospective con- (2d Cir.1999) Cowen, 154, 164 165 F.3d subject rules, tacts were to NCAA Chan- (upholding predictions of defendants’ dis- questioned cellor Big Aiken NCAA and ruption employee’s that state “refusal to Ten Conference sending officials before promote proposed change would result In response, the e-mail. NCAA rules ex- in negative publicity and decreased mo- pert O’Meally Denise explained an e- rale, profitability.”). ... impairing turn regulations mail that NCAA apply when government goes interest here be- “an institution either identifies and con- yond the obvious interest effective re- group tacts students University's ing, 3. The not the court does discuss or burdensome communication to im recruiting pressionable teenage interest in effective and maintain athletes who are entitled precedent privacy. a sound bottom line. Our em Lighthouse to Muller v. Cf. Jefferson Sch., 1530, (7th phasizes “[efficiency responsi Cir.1996) that and fiscal (per 98 F.3d 1541 governmental bility powerful mitting principal prescreen speech interests.” to that Messman, plaintiffs "materially F.3d at 1047. proce 133 The interfere[d] with school acknowledge University’s the actual interest dures and intrudefd] into school affairs or the others.”). recruiting speech in being "paternal and that Chancellor Ai lives of Far from claim, "might constitutionally require pre-ap- plaintiffs ken istic” as the such concerns proval of such limiting contacts.” Nor does the court are the basis for the NCAArules the University’s regulating timing recruiting discuss the in interest number and of contacts to timing the potentially intimidating, prospective of confus student athletes.

687 475, at fear. NTEU speculative ture or ability or contacts their athletics on based Cf. Broadcasting (citing Turner their ath- 115 S.Ct. 1003 to discuss students 664, FCC, 622, 114 sending the System v. Before participation.” letics (1994)). 2445, 129 also conferred 497 e-mail, Aiken L.Ed.2d Chancellor S.Ct. and .with University officials with various interest, the Turning plaintiffs’ to the con- counsel before and outside in-house test, plain the balancing again, considers letter-writing campaign the cluding that commenting in as a citizen tiffs’ interest NCAA restrictions. fell within potentially public of concern. The upon matters attorneys later obtained plaintiffs’ citizens, interests, are not plaintiffs’ as the stating from the NCAA letter e-mail, only interests impacted by the their likely not letter-writing campaign would commenting government employees. in as that the Uni provided result sanctions Connick, 140, at 103 S.Ct. 1684. U.S. corre unaware of the versity “either was citizen, remained free to plaintiffs As a reasonably preclude to or acted spondence conferences, letters to the hold news write the con being Regardless, it from sent.” editor, speeches, engage in public deliver not whether inquiry is stitutional protests, speak publicly rallies or or to due have faced sanctions school would way concerning the Chief controver other attempt to plaintiffs’ the letters. fact, replete record is sy. an sanctions is the likelihood of question on radio examples plaintiffs appearing of reviewing unhelpful inquiry especially Chief, writing news regarding TV summary judgment, motion for plaintiffs’ articles, addressing the board of paper fact must be disputed all issues because trustees, in anti-Chief participating In Aiken. in favor Chancellor resolved An enor marches and demonstrations. stead, the e-mail was the test is whether open remains to category mous anticipat necessary prevent to reasonably to mention the availabili plaintiffs, not NTEU, 513 harms. See U.S. ed McIntyre v. ty anonymous speech. See Hasara, 1003; 226 F.3d Myers v. Commission, 514 U.S. Elections Ohio Cir.2000) (7th (balancing gov (1995) 1511, 131 L.Ed.2d S.Ct. the facts rea interest on ernment based tra respected (extolling the United States’ employ government to the sonably known advocacy of anonymity in the dition of er). above, the e-mail served As stated causes). political that, reg due to NCAA employees caution a case where simply This is ulations, necessary dialogue was before suppress University attempting athletes could be contacts with student happens to be message, which plaintiffs’ view of plaintiffs’ under the made. Even At here is the the Chief. issue against face could regulations, they permitted plaintiffs’ demand reasonably to act if it did not sanctions University professors to use their status being from sent a communication preclude impact magnify e-mail was a of the rules. The violation directly contacting and speech by their to the response and is entitled reasonable The court discouraging potential athletes. normally given government deference plaintiffs complied granting justify harm restric predictions of used in right to communicate Waters, extended See employee speech. tions in a capacity government as 673, 114 The care at S.Ct. 1878. time, manner of their own place, sought by investigation ful and advice the not consider choosing. The court does the e Chancellor Aiken establishes modes of communication conjec- many alternative out of mere mail was not written 688 upon by and whether such and relied plaintiffs advice the NCAA be- open

left adequate sending when balanced the e-mail. merely were fore The court alternatives University’s against upon concern for violat- relies to support the Jones its conclusion Hasara, Myers regulations. clearly v. that the law was ing NCAA established. As (7th Cir.2000) above, (citing forth 226 F.3d set Jones involved an actual (7th Steil, F.3d Coady prohibition speech, v. unlike the prepub- Cir.1999)). plaintiffs already The were us- lication review issue here. Jones to ing speech concerning disciplinary venues communicate their banned all numerous ways disruptive less to message open any the and did not leave matters alter- University, communicating still but native channels of communication. In con- trast, anyone willing to read or listen. First the e-mail at issue here did not require not purport Amendment does Universi- regarding make discussions ty requirements the time plaintiffs to eliminate of Chief confidential. The re- regulations editor, and allow Universi- the NCAA mained free to write letters to the ty employees imprimatur discussion, official engage protests, give lead positions prospective to communicate public speeches, plaintiffs etc. The approached student athletes. meeting their burden of showing “very closely analogous case law” Even if the court were correct and Chancellor Aiken is thus entitled to to this applied NTEU case and that bal qualified immunity. plaintiffs, ance tipped quali favor immunity applies fied to Chancellor Aiken. III. were a

Assuming there constitutional vio lation, in order remove the cloak of Pickering/Connick balancing test immunity, plaintiffs qualified have the applies to Chancellor Aiken’s e-mail be- proof to show that the pro burden law merely places cause time restrictions on hibiting Chancellor Aiken’s conduct was by narrow band of communication plain- Lund, “clearly Gregorich established.” v. capacity tiffs in their government em- (7th Cir.1995). 54 F.3d The test ployees. The e-mail is not “wholesale clearly whether law was estab category deterrent to a broad expres- lished must be conducted based on the sion potential massive number of case, specific high facts of the and not at a speakers” and applying thus the test for generality. level of Greenberg See heightened scrutiny of NTEU is not Kmetko, (7th 922 F.2d 383-84 Cir. test, Pickering/Connick met. Under the 1991). government important has an interest

Here, Pickering/Connick both efficiency recruiting; in comply- and, balancing NTEU involve tests unless with NCAA time regarding limitations law, “very closely analogous” athletes; there is case contacts with struck protecting balance official will not and in prospective student ath- qualified immunity. remove Grego- intimidating, See letes from confusing, or bur- rich, 54 at 414. Moreover, F.3d Plaintiffs have not densome communication. closely identified such analogous e-mail open variety case leaves wide of alter- proposition communication, law. The obvious that native plain- of which the general restraints are disfavored is far too advantage. tiffs have taken Finally, satisfy plaintiffs’ burden. As set qualified Chancellor Aiken is entitled to above, forth immunity Chancellor Aiken did not act plaintiffs because the have failed attorneys without caution. He showing very consulted meet their burden of controlling law analogous case closely DIS- I therefore this case.

outcome would and court’s decision from the

SENT as to judgment court’s the district

vacate declaratory relief for request plaintiffs’ Aiken’s Chancellor damages grant and summary judgment.

motion for America, STATES

UNITED

Plaintiff-Appellee, DANIELS, L. Defendant-

Adom

Appellant.

No. 03-2975. Appeals, Court

United States

Seventh Circuit. 21, 2004.

Argued April June

Decided Hennage (argued), Office

Ruth Bend, IN, Attorney, South United States Plaintiff-Appellee. for Indiana Fed- (argued), Robert D. Truitt Inc., Defenders, South Community eral Bend, IN, Defendant-Appellant. MANION, COFFEY, Before KANNE, Judges. Circuit

Case Details

Case Name: Cydney A. Crue, John M. McKinn Debbie A. Reese, Brenda M. Farnell, Frederick E. Hoxie, Stephen Kaufman, and Philip W. Phillips v. Michael Aiken

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jun 1, 2004

Citation: 370 F.3d 668

Docket Number: 02-3627, 03-2281, 03-2951

Court Abbreviation: 7th Cir.