WEIRD THINGS YOU LEARN IN THE LAW:



In skimming How Appealing for my morning legal news, I note that Seventh Circuit Judge Terence T. Evans recently issued an entertaining opinion, but misspelled the name of the much-loved banana slug Ariolimax dolichophallus, as can be shown by reference to a Web page entitled "To Chew or Not To Chew: Penis chewing as an adaptive partner manipulating strategy in Banana Slugs? (Ariolimax dolichophallus Mead)." I'm not sure where to go with that, so I'll just file it away and move on.



The opinion itself concerns the First Amendment issues involving the University of Illinois mascot "Chief Illiniwek." (The banana slug 'ariolomax dolichophalus' (sic) comes into play because for years it was apparently the unofficial mascot at UC-Santa Cruz.) Basically, the plaintiffs were members of the university who felt that the mascot was inappropriate took to contacting prospective student mascot recruits directly, to educate them about the perceived racist stereotypes which the plaintiffs felt the student would be perpetuating should he or she decide to come to the university and participate in games as a mascot. The administration raised the issue whether NCAA rules would govern these contacts with prospective student atheletes (I guess mascots are classified as atheletes. See how much you can learn in these legal opinions?). On March 2, 2001, the chancellor of the university, defendant Michael Aiken, sent the e-mail which precipitated the lawsuit. It said:



"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."



The plaintiffs protested this was a "preclearance directive" and asked for clarification regarding how it would be applied. A second memo was sent out, reading in part:



"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."



The problem was that the administration was actually enforcing a policy broader than that of the NCAA. According to the opinion, "it applied to students as well as staff members, and it applied to all prospective contacts with prospective student-athletes. . . it applied to any contacts made “for the purpose of addressing any issue related to athletics." Most importantly, it insisted that persons intending to contact prospective athletes inform the administration of what they were going to be talking about.



The Court noted that there were two tests in the law regarding the balance between the free speech rights of public employees, the one set out in Pickering v. Board of Education, 391 U.S. 563 (1968), or the one announced in United States v. National Treasury Employees Union, 513 U.S. 454 (1995) (NTEU: "To oversimplify, Pickering applies to speech which has already taken place, for which the public employer seeks to punish the speaker. NTEU applies when a prior restraint is placed on employee speech. That distinction seems simple enough, but of course, like almost all things legal, there are ways to argue about where the dividing line should be."



The Court applied NTEU for two reasons: 1) It was the prior restraint case; and 2) It had involved a broad mandate governing the speech of numerous employees, unlike Pickering which balanced a single schoolteacher's right to write a letter to a local newspaper criticizing the school board’s handling of a bond issue. Under the NTEU test, the Court looked at the following arguments:



"When using the NTEU balancing test, we look first to the interest the university sees threatened by the speech. In its view, the purpose of the speech was to harm the university’s athletic recruiting in order to pressure the university into dropping Chief Illiniwek as mascot. The university says it had a compelling interest in adhering to the rules of the NCAA to protect its athletic program, that program being of particular importance to the university. The university, having had prior unpleasant experience with NCAA sanctions, was particularly concerned with NCAA rules. . . For their part, the plaintiffs assert their long-standing interest in convincing the administration that Chief Illiniwek hurts the university by, for example, creating a hostile environment for Native American students. The plaintiffs’ speech is “addressed to a public audience . . . made outside the workplace, and involve[s] content largely unrelated to their government employment.” . . . They also say they have an interest in the timeliness of their activity because the NCAA rules limit the timing of recruiting activity. The preclearance directive does not have a schedule for the review of proposed communications. Therefore, nothing prevents Mr. Ille from delaying approval of their communications until the recruiting season is over."



The Court found in favor of the plaintiffs: "The free-speech interest of the plaintiffs—members of a major public university community—in questioning what they see as blatant racial stereotyping is substantial. That interest is not outweighed by fear that an athletic association might not approve of what they say. Furthermore, if something said by a plaintiff to prospective studentathletes is actionable in and of itself, disciplinary action, subject to a Pickering analysis, could be pursued by the university. For these reasons, we conclude that the district court correctly found that the plaintiffs’ free-speech rights were infringed by the March 2 preclearance directive."