The opinion of the court was delivered by: Mihm, District Judge
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.
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.
Plaintiffs are students and faculty members at the University who
publicly oppose the use of the Chief Illiniwek mascot as creating a
hostile environment for Native American students, promoting the
acceptance of inaccurate information in an educational setting,
increasing the difficulty of recruiting Native American students, and
contributing to the development of cultural biases and stereotypes. They
have in the
past expressed their opposition to Chief Illiniwek through
public speaking in various forums, writing letters, meeting with student
groups, submitting newspaper articles for publication, and attending
protests, and the University has made no attempt to interfere with such
efforts. However, Plaintiffs now wish to contact prospective student
athletes to make them aware that the University and its athletic program
utilize a symbol that is, in their opinion, degrading to the Native
American race, provide information on the controversy, and in some cases
to ask the prospective students to consider whether or not they wish to
participate in a program which is indifferent to racial injustice. How
they would learn the identities of those prospective student athletes or
precisely what avenue of communication would be used is not part of this
On March 2, 2001, Chancellor Aiken sent an email message to all
faculty, staff, and students at the University which stated in relevant
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,
(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
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
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
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 ...