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CRUE v. AIKEN
May 24, 2002
CYDNEY A. CRUE, ET AL., PLAINTIFFS,
MICHAEL AIKEN, DEFENDANT.
The opinion of the court was delivered by: Michael M. Mihm, United States District Judge.
This matter is now before the Court on cross-motions for summary
judgment. For the reasons set forth below, Plaintiffs' Motion for Partial
Summary Judgment [#71] is GRANTED, and Defendant's Motion for Summary
Judgment [#69] is DENIED.
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.
For many years, the University of Illinois (the "University") has used
Chief Illiniwek as a symbol for its sports teams. A student assumes the
role of Chief Illiniwek by wearing clothing identifiable in popular
culture as that worn by Native Americans and performs a dance while so
costumed at major athletic events such as football and basketball games.
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. In late February 2001, Plaintiffs expressed an interest in
contacting prospective student athletes to communicate their concerns and
inform them about the Chief Illiniwek controversy.
Defendant, Michael Aiken ("Chancellor Aiken"), is the former Chancellor
of the University. As part of his duties as Chancellor, he was
responsible for ensuring that the University was in compliance with the
rules of the National Collegiate Athletic Association ("NCAA"). The
NCAA, through its member institutions, governs participation in
inter-collegiate athletics and regulates the extent and timing of
contacts with prospective student athletes by University staff, coaches,
faculty, and athletic representatives. Failure to abide by NCAA
regulations can lead to sanctions being imposed upon the University, its
athletic programs, and loss of eligibility for prospective student
On March 2, 2001, Chancellor Aiken sent an email message to all
faculty, staff, and students at the University which stated in relevant
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 So.
Fourth Street, Champaign, IL 61820, (217) 333-5731,
(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. 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
[I]f the prospective students contacted are identified
for contact based upon their participation in
athletics, if the contact is made for the purpose of
addressing any issue related to athletics, if the
contact is made for the purpose of addressing the
prospective student's possible participation in
intercollegiate athletics, or if the contact is made
at the request of a Division of Intercollegiate
Athletics staff member. . . . We are committed as an
institution to operating 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 to intentionally violate them.
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 purportedly apply to regulate contact with prospective students.
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. 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
The University values and defends the principles of
free speech and academic freedom for members of the
The University does not seek to interfere with the
expression of views regarding matters of public
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
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 June 5, 2001, following the entry of a Temporary Restraining Order
by this Court, then Chancellor Aiken issued an e-mail to all faculty,
staff, and students at University that stated:
As you may recall, on March 2, 2001, I sent an e-mail
message to persons associated with the University
regarding "Contact with Potential Student Athletes."
My e-mail message stated, in part, that: "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." However,
in light of Judge Mihm's order of April 6, 2001 and
more recent testimony by representatives of the
National Collegiate Athletic Association (NCAA), I
have concluded that express authorization of the
Director of Athletics or his designee should not be
required. Therefore, effective this date, I am
permanently retracting the above-quoted sentence of my
March 2, 2001 e-mail message.
The retraction of the above-quoted language from my
earlier e-mail does not lessen the University's
commitment to complying with NCAA rules in the
recruitment of student athletes at the University of
Illinois. I continue to call upon all members of the
University community to abide by the rules of the NCAA
when dealing with potential student athletes. Should
you have questions concerning NCAA rules, please
contact Mr. ...