Now before the Court is Defendants Phil Katsinas and Round Barn Restaurant, Inc.'s Motion for Summary Judgment [#102]. For the reasons set forth below, the Motion is DENIED.
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331, as the claims asserted in the Complaint present federal questions under 42 U.S.C. § 1981.
Recently, on February 16, 2007, the University of Illinois at Champaign-Urbana ("U of I" or "the University") announced its plan to retire its 81-year-old mascot, Chief Illiniwek. Jodi S. Cohen, U of I Sets Last Dance for Illiniwek, CHI. TRIB., Feb. 17, 2007, at 1. The Chief, portrayed by a barefoot student who dances during halftime of various University sporting events in a buckskin costume and feather head dress, has been the subject of well-known debate for decades. Supporters Defiant as Chief Illiniwek Makes Last Stand, CHI. TRIB., Feb. 22, 2007, at 16. February 21, 2007, marked the final performance of Chief Illiniwek, who supporters viewed as an honorable tradition and critics labeled as demeaning to Native Americans and inciting a hostile environment on campus. Id.; Jodi Cohen, U of I Ends Chief Illiniwek's Run, CHI. TRIB., Feb. 16, 2007. The University's decision came after more than 15 years of great controversy surrounding the mascot, including several campaigns to retain the Chief up against years of protests opposing the mascot. U of I Sets Last Dance, supra. The facts of this case arise out of one such protest, at the height of the Chief Illiniwek controversy.
Plaintiffs Tom Leonard ("Leonard"), William Cook ("Cook"), Diana Delso, f/k/a Diana Waters ("Delso"), David Wegeng ("Wegeng"), and Roger Fontana ("Fontana") have brought this action against Defendants Phil Katsinas ("Katsinas"), Roger Huddleston ("Huddleston"), Round Barn Restaurant, Inc. ("the Restaurant" or the "the Banquet Center"), and the Honor the Chief Society, alleging that their rights under 42 U.S.C. § 1981 were deprived when they were wrongfully denied entrance to the Restaurant's Banquet Center and an HTCS event being held there on February 28, 2004. They allege that the Defendants excluded them because of their Native American heritage
I. The Plaintiffs' Backgrounds
Cook, Leonard, Delso, Wegeng and Fontana all claim to be Native American and are all admittedly "anti-Chief." Each has acted on his or her anti-Chief beliefs in the past.
Cook is the most "accomplished" and well-recognized of the Plaintiffs when it comes to participation in anti-Chief protests and reputation for being an influential member of the anti-Chief movement. Cook first began protesting Chief Illiniwek in the early or mid-1990s, and estimates that he has participated in five to ten protests per year since then. For example, he has protested at sporting events, oftentimes shouting anti-Chief slogans, has held anti-Chief rallies, and has attended University Board of Trustee meetings, carrying anti-Chief banners. Cook also regularly writes into local newspapers and calls local radio stations to voice his anti-Chief plaintiff. He admits that his activities have also earned a lot of unsolicited coverage from the media and that he is fairly well-recognized in the community as being anti-Chief. People unknown to him have recognized and harassed him for his opposition to the Chief.
Cooks admits that he is purposefully disruptive and extreme in order to shock people and draw attention to his cause. Observers occasionally respond to his displays with violence. Cook has been physically attacked fist to face, regularly has objects thrown at him, and has been sworn and shouted at. Cook also testified that he has received many threats, including threats of injury and death. When Cook is anticipated to be present at University events, the University police are notified and officers are stationed nearby.
Perhaps the most notorious protest involving Cook occurred during a 2002 U of I women's basketball game. From the stands, Cook and another of the plaintiffs, David Wegeng, shouted profanity and anti-Chief slogans. Wegeng was ejected from the game for using offensive language, and Cook was also eventually told to leave by University security. When he refused, Cook began fighting off the officers and was ultimately handcuffed and escorted out of the arena while shouting. Because of the incident, Cook was tried and convicted of resisting a peace officer. The incident, trial, and conviction all received extensive media coverage.
Cook identifies himself as an "adopted Dakota" but has no Dakota blood and is not represented in any Dakota Nation documents as a tribe member. He insists that he is at least 1/32 Cherokee Indian. At times, he has described himself as an "assimilated Cherokee." He has no documentation and has asserted no other evidence other than his own testimony to establish any Native American heritage, and acknowledges that the Bureau of Indian Affairs requires 1/8th Indian blood for one to be considered Native American. While Cook testified that people have told him that he looks Native American, others have testified that they believe Cook is Caucasian. Cook himself has admitted in media broadcasts that he looks mostly white.
Of the five plaintiffs, Leonard is the only "card-carrying" Native American, so to speak. He has established his Native American heritage by producing his father's tribal enrollment card from the Saginaw Band. Leonard admitted that he has participated in multiple protests of Chief Illiniwek in the past with some of the other Plaintiffs, including protests at U of I sporting events, and has held anti-Chief signs at football games. He has also been pictured in media accounts of the events.
Delso alleges that she is of distant Cherokee ancestry, "generations ago" on her mother's side. While Delso alleges that she has always known she was Native American, she has always marked Caucasian or white when identifying her race on various documents. She also acknowledges that people would not know, just from her appearance, that she has Native American blood. She testified that she attended one anti-Chief protest before the incident at the Round Barn Restaurant and a few afterwards.
Wegeng alleges that he is part Lakota Indian, but does not know which of his ancestors was a full-blood Native American. He has no documents showing that he is Lakota, but estimates that there was a full-blooded Lakota Indian in his family tree about four or five generations ago. Wegeng has marked his race as Caucasian on various forms in the past, but testified that his dark skin and dark eyes make him look Native American. Several others have stated that there is not anything about Wegeng's appearance that would lead one to conclude that he was of Native American heritage. He estimates that he has attended about a dozen anti-Chief protests at sporting events and Board of Trustees' meetings in the past. He testified that the typical responses to these events include screaming, swearing, beer throwing, spitting, vandalism, and bodily violence.
Fontana's adoptive parents told him that he had Native American ancestry, but he is unable to identify a particular percentage. He alleges that his father is one half Native American. Fontana also testified that the Cherokee Historical Society told him that his great-grandfather was full blooded Cherokee. Fontana has participated in dozens of protests and has also provided security for these events to prevent attacks on anti-Chief people. Fontana has gone to Chief Illiniwek tryouts with Cook, and testified that people there recognized them as being anti-Chief and that Cook is well known as a result of his protests, especially the 2002 incident at the women's basketball game.
The Honor the Chief Society is a not-for-profit corporation. Its purpose is to represent alumni, fans and various other constituencies that support the Chief Illiniwek tradition. Defendant Roger Huddleston was the president of the Honor the Chief Society on February 28, 2004, the date of the incident giving rise to this lawsuit, and he is pro-Chief. Some time in 2002, the Honor the Chief Society and Huddleston excluded a number of people, including plaintiff Cook, from attending a screening of a pro-Chief documentary. Huddleston decided to exclude Cook and the others on the recommendation of hired security guards and because the individuals had been protesting. Huddleston had also seen Cook protesting at sporting events and Board of Trustee meetings, and the two had called in to local radio shows at the same time to discuss each other's viewpoints regarding the Chief.
Phil Katsinas is the general manager of the Round Barn Restaurant, and also manages the Round Barn Banquet Center, which is a division of the Restaurant. Katsinas was aware that the Honor the Chief Society was a pro-Chief group when it booked the Banquet Center for its February 28, 2004, event.
The Honor the Chief Society planned the February 28 banquet to honor the student who was the outgoing Chief Illiniwek, to show a pro-Chief DVD, and to generally gather membership. The event was advertised in local papers and radio broadcasts. Advertisements described the event as not limited to Honor the Chief Society members and open to the public, but also as a pro-Chief event. Katsinas and the Restaurant did not have input into any of the advertisements. Tickets were sold in the lobby of the Restaurant building, apparently by an Honor the Chief Society member.
Cook and Wegeng heard about the event through the local media. Cook invited Wegeng, Leonard, and Fontana to come to the banquet, and Fontana in turn invited Delso. All of the Plaintiffs ...