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by
Edward N Matisik, Esq.
edmatisik@yahoo.com
October 15th, 2004
STUDENT AND FACULTY GROUP
THAT OPPOSES USE OF NATIVE AMERICAN MASCOT BY UNIVERSITY OF ILLINOIS
MAY CONTACT PROSPECTIVE
STUDENT-ATHLETES WITHOUT PRIOR
AUTHORIZATION BY THE UNIVERSITY
Since the early 20th century, the University of
Illinois at Urbana-Champaign (UI) has called its athletic teams the
“Fighting Illini”, in reference to a confederation of Algonquin Indian
Tribes that inhabited the upper Mississippi Valley when French explorers
first arrived in the area during the early 17th century. The UI
marching band subsequently introduced the UI mascot, “Chief Illiniwek”, in
1926.
Chief Illiniwek traces his existence to an assistant
director of the UI marching band. The director conceived the idea of having
a Native American war dance performed during halftime of the Fighting
Illini’s 1926 football game against the University of Pennsylvania. A
student, wearing a homemade war bonnet, performed a dance and smoked a
peacepipe with the University of Pennsylvania mascot, “William Penn”, during
halftime of that game.
The mascot was named “Chief Illiniwek” shortly thereafter by
UI football coach Bob Zuppke. Zuppke was a trained philosopher and
historian with a particular interest in Native American tribes of the
Midwest. He chose the word “illiniwek” as the Chief’s name because the word
has a complex meaning in the Algonquin language. The word refers to what
comprises a “complete” human being: a strong, agile physical body, an
unfettered intellect, and an indomitable spirit.
UI
has used Chief Illiniwek as its mascot ever since, but has made some
revisions to his costume and dancing during the past eight decades. UI last
revised Chief Illiniwek’s costume in 1982. He appears in person at all UI
football and basketball games as well as at most other university-related
athletic contests. However, voices of protest against the Chief Illiniwek
mascot began to arise in the mid-1970’s and have reached a fevered pitch
during the last few years. The Peoria Tribe of Oklahoma, also known as the
Illiniwek Nations, formally asked UI to discontinue the use of Chief
Illiniwek in the late 1990’s.
In
early 2000, a group of UI students and faculty members formed a loose,
unnamed group to protest the use of the mascot by the University. The group
stated that the use of Chief Illiniwek “creates a hostile environment for
Native American students and he promotes dissemination of inaccurate
information in an educational setting.” The group carried out a number of
activities in protest of UI’s use of the mascot, including sponsoring
speeches, conducting letter writing campaigns, meeting with UI student
groups, submitting newspaper articles to various publications, and attending
other meetings while protesting the use of the mascot. UI never interfered
with any of these activities.
On
February 28, 2001, a local newspaper published an article in which members
of the group stated that they intended to contact prospective UI
student-athletes—i.e., high school and junior college student-athletes—to
“inform them of the controversy and the implications of competing
athletically on behalf of a university which…employs racial stereotypes.”
The University responded almost immediately.
On
March 2, 2001, Michael Aiken, Chancellor of UI, sent an e-mail to a large
number of people within the UI community. The e-mail stated, in 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 from 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.
The
e-mail then stated that Vince Ille, Assistant Athletic Director for
Compliance should be contacted before any member of the UI community
attempted to contact a prospective student-athlete.
Within hours, Frederick Hoxie, a member of the
faculty/student group protesting Chief Illiniwek, wrote to Aiken, stating
that he wanted to advise potential student-athletes of the University’s
“unresponsiveness to the concerns of Native Americans” and asked for
guidance since he believed that the e-mail banned him from directly
contacting student-athletes. Aiken referred the matter to Ille, who, in
turn, sent a request for guidance to the NCAA as to whether a contact by a
UI faculty or staff member for purposes of informing him or her of the Chief
Illiniwek controversy would constitute a “contact” between the University
and the student-athlete for purposes of recruiting. The NCAA replied that
any such contact would, in fact, constitute a “contact” for purposes of
recruiting.
Approximately two weeks later, Aiken sent an e-mail to the UI Faculty
Senate. This e-mail stated, 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…
…[T]here are numerous and detailed NCAA rules regarding
contacts by faculty
and other University representatives with prospective
student-athletes. That is
why my e-mail [of March 2nd] 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…
We expect member of the University community to express
their viewpoints
without violating NCAA rules concerning contacts with
prospective student-
athletes…
The faculty student/group protesting the use of Chief Illiniwek considered this policy to be an attempt by the University to limit
their right of free speech. They immediately filed suit against UI,
alleging that the University’s policy was a prior restraint on free speech,
which is prohibited by the United States Constitution.
The federal court in Chicago hearing the case noted that the
proper legal test to determine whether a governmental institution—such as
the state-related University of Illinois—is attempting to enforce a
legitimate prior restraint on free speech, was stated by the United States
Supreme Court in United States v. National Treasury Employees Union,
513 U.S. 454, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995), (popularly known as “NTEU”).
In order to be able to enforce a policy of prior restraint against an
individual’s free speech rights, the Court in NTEU held that the
governmental institution must show that the interests of the audience for,
and speakers of, the speech in question—in this case, the faculty/student
group and the prospective student-athletes—are outweighed by the speech’s
possible negative “impact on the actual operation” of the governmental
institution.
The federal court found that UI’s policy was clearly an attempt to impose a
control on the student/faculty group’s free speech rights prior to the
actual exercise of those rights and that the policy could potentially affect
a large number of people. The court estimated that almost 45,000
members of the UI community were, under terms of the policy, forced to
obtain prior approval for their speech from a governmental institution.
The court stated, therefore, that the policy was, without doubt, a prior
restraint on free speech.
However, the question remained whether this particular prior restraint was
permissible under NTEU; that is, would the potential negative impact of the
speech on UI’s athletic operations outweigh the faculty/student group’s
right to free expression on a matter of public concern? If so, the prior
restraint would be enforceable by UI.
The
court noted that whether UI or the NCAA liked the speech of the group was
irrelevant and that the only true concern for UI was whether the speech of
the group could subject the University to sanctioning by the NCAA. The
court found that “it does not necessarily follow that the university’s
interest in preventing a sanction would outweigh a legitimate interest in
protesting allegedly racially offensive behavior.” Further, the court
stated that there was nothing to prevent the University from punishing a
student or faculty member who engaged in speech with a potential
student-athlete that was otherwise actionable—for example, speech that was
defamatory towards the University—after such speech had already
occurred. Consequently, the court found that elimination of the
pre-clearance policy would have little effect on the operations of the
intercollegiate athletics department at UI.
Conversely, the court found that the preclearance policy severely inhibited
the faculty/student group’s right to engage in free speech. The court
stated:
The
free speech interest of the [group]—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 [the UI athletic
department] might not approve of what they say.
Accordingly, the court held that the group’s right to free speech outweighed
any concern by UI that it might be subject to an NCAA sanction for speech
made to prospective student-athletes by members of the University
community. The court entered judgment in favor of the group, issued a
declaratory judgment stating that the University’s preclearance policy on
statements made to prospective student-athletes was unconstitutional, and
awarded $1,000 in nominal damages plus attorneys fees to the faculty/student
group. The University has not yet stated whether it will appeal the
decision to the United States Supreme Court.
The case is Crue v. Aiken, 370 F.3d 668 (7th
Cir. 2004).
To contact Ed
Matisik, or to read his bio, please click
here.
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