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CRUE v. AIKEN

May 24, 2002

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



The opinion of the court was delivered by: Michael M. Mihm, United States District Judge.

      ORDER

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.

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

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 athletes.

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 So. Fourth Street, Champaign, IL 61820, (217) 333-5731, E-mail: ille@uiuc.edu.

(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 situations:

[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 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 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. ...

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