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CRUE v. AIKEN

April 6, 2001

CYDNEY A. CRUE, ET AL., PLAINTIFFS,
v.
MICHAEL AIKEN, DEFENDANT.



The opinion of the court was delivered by: Mihm, District Judge

  ORDER

This matter is now before the Court on Plaintiffs' Motion for a Temporary Restraining Order ("TRO") enjoining the University of Illinois (the "University") from requiring the preclearance of communications with prospective student athletes by two proposed classes of putative Plaintiffs. For the reasons set forth below, the Motion for Temporary Restraining Order [#4] is GRANTED.

I. JURISDICTION

The jurisdiction of the Court arises pursuant to 28 U.S.C. § 1331, as the matter presents a case or controversy arising under the First Amendment to the U.S. Constitution.

II. BACKGROUND

On March 2, 2001, Chancellor Aiken sent an email message to all faculty, staff, and students at the University which stated in relevant part:

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. Questions about the rules should be addressed to Mr. Vince Ille, Assistant Director for Compliance, Bielfeldt Athletic Administration Building, 1700 S. Fourth Street, Champaign, IL 61820, (217) 333-5731, E-mail: ille@uiuc.edu.
(Plaintiffs' TRO Exhibit 1, hereinafter referred to as the "Preclearance Directive.") On the same date, after the receipt of this email, Plaintiff Professor Fred Hoxie ("Professor Hoxie") sent a follow-up email to the Chancellor indicating his desire to inform prospective students about the University's perceived unwillingness to respond to the concerns of Native Americans with respect to the Chief Illiniwek controversy and seeking guidance about how the Preclearance Directive impacted him. (Plaintiffs' TRO Exhibit 2.) Nearly two weeks later, Professor Hoxie received a response from Vince Ille ("Mr. Ille"), Assistant Athletic Director for Compliance, indicating that the NCAA rules, and therefore the Preclearance Directive, apply in four situations:
(Plaintiffs' TRO Exhibit 4.) Professor Hoxie replied that he did not intend to discuss the athletic program with prospective student athletes, but still did not understand how he could communicate his concerns regarding the racial atmosphere on campus to them under the Preclearance Directive.

On March 20, 2001, Mr. Ille again responded with the list of four situations in which the NCAA rules apply to regulate contact with prospective students. (Plaintiffs' TRO Exhibit 3.)

On March 19, 2001, Chancellor Aiken addressed the faculty senate, reading from a written statement which essentially reiterated the statements contained in Mr. Ille's March 20, 2001, email to Professor Hoxie. (Exhibit A to Professor Kauffman Affidavit.) His statement also included a comment to the effect that he had received emails posing a series of hypothetical questions about the

First Amendment and that engaging in a debate about such matters would not seem helpful or productive. The entire text of the Chancellor's statement was as follows:

The University values and defends the principles of free speech and academic freedom for members of the University community.

The University does not seek to interfere with the expression of views regarding matters of public concern.

However, we also are a member of the NCAA, and are committed to controlling our intercollegiate athletics program in compliance with the rules and regulations of the NCAA.

This means that we expect members of the University community to respect NCAA rules, and certainly not intentionally violate them.

As explained in my e-mail of March 2, there are numerous and detailed NCAA rules regarding contacts by faculty and other University representatives with prospective student-athletes. The NCAA Division I Manual itself is 480 pages long. That is why my e-mail advised that any such contacts should occur only with the express authorization of the Director of Athletics or his designee, who have experience in these issues. This is the same policy that this campus consistently has followed in regulating contacts with prospective student-athletes.

I have sought advice from the DIA compliance officer, Vince Ille, and Legal Counsel on this issue. Mr. Ille also consulted with the NCAA.

We expect members of the University community to express their viewpoints without violating NCAA rules concerning contacts with prospective student-athletes. Numerous such opportunities abound, including letters to the editor, press releases, radio/TV interviews leafleting, and public speeches. Various faculty members and others have availed themselves of these opportunities over the years.

Let me address one other point: we have received some e-mails in response to my March 2 e-mail that pose a series of hypothetical questions about the First Amendment and other issues. Engaging in a debate at this time about such matters hardly seems helpful or productive.

On April 4, 2001, the Court held a hearing on Plaintiffs' Motion for Temporary Restraining Order, during which both sides presented evidence and argument on the issue. The matter was taken under consideration, and this Order follows.

III. POSITIONS OF THE PARTIES

Plaintiffs bring this suit, alleging that their constitutionally protected rights to free speech have been violated by the overbroad and unfettered prior restraint of speech contained in the Preclearance Directive. Specifically, the Plaintiffs contend that the Preclearance Directive unlawfully allows the Director of Athletics absolute control over all communications between the University community and prospective student athletes and unconstitutionally deprives members of the University community of the ability to convey their message anonymously. They seek injunctive relief prohibiting Chancellor Aiken from requiring the preclearance of communications with prospective student athletes by two proposed classes: (1) by University students who do not represent the athletic interests of the University and who do not intend and will not recruit prospective student athletes; and (2) on matters of public concern by University faculty who do not represent the athletic interests of the University and who do not intend and will not recruit prospective student athletes.

The University contends that although the Preclearance Directive may impose certain restrictions on Free Speech, these restrictions are reasonable and necessary to advance three important interests. First, the University contends that as a member of NCAA, it has a duty to adhere to that organization's rules and regulations and that potential contacts by the Plaintiffs in this case would violate such rules and regulations. Second, the University contends the Preclearance Directive is necessary in order to adhere to its obligation of preventing the harassment of potential student athletes as espoused in the NCAA Bylaws and also pursuant to its own independent duty. Finally, the University asserts that the Preclearance Directive is necessary in order to maintain and control the management of the school's athletic department and recruiting. Accordingly, the University contends that these interests tilt the scales of any balancing test in favor of a finding that the Preclearance Directive is constitutional.

IV. SUMMARY OF COURT'S RULING

The Plaintiffs in this case purportedly intend to convey various messages directed toward potential student athletes that range from informing these students of the Chief Illiniwek controversy to inquiries that might conceivably have the effect of discouraging that student from attending the University. It is not the function of this Court to determine whether it would be an exercise of good judgment to engage in such speech; nor does the Court express any opinion on the ...


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