Opinion
Case No. 01-1144.
December 13, 2001
ORDER
This matter is now before the Court on Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint. For the reasons set forth below, the Motion to Dismiss [#51] is GRANTED IN PART and DENIED IN PART.
BACKGROUND
Most of the relevant facts underlying this case have been set forth in great detail in the prior orders of the Court and need only be briefly summarized here. Plaintiffs are students and faculty members at the University of Illinois (the "University") who 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, but had wanted to take the additional step of contacting prospective student athletes to discuss the issue.
On March 2, 2001, then Chancellor Michael Aiken sent an email message to all faculty, staff and students at the University which stated in relevant part:
[T]he NCAA regulates the timing, nature and frequency of contacts between any University employee and prospective athletes. . . . 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.
(Hereinafter referred to as the "Preclearance Directive.") After the receipt of this email, Plaintiff Fred Hoxie ("Hoxie") sent a follow-up email 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. He received a response from Vince Ille ("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.
(March 14, 2001 email message.) Plaintiff 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. Ille again responded with the list of four situations in which the NCAA rules apply to regulate contact with prospective students. (March 20, 2001 email message.) On March 19, 2001, Chancellor Aiken addressed the faculty senate, reading from a written statement which essentially reiterated the statements contained in Ille's second email to Hoxie, including a statement that he had received emails posing a series of hypothetical questions about the First Amendment and that engaging in a debate about such matters "hardly seems helpful or productive."
Plaintiffs brought this suit, alleging that their constitutionally protected rights to free speech have been violated by the overbroad prior restraint of speech contained in the Preclearance Directive. Specifically, they sought injunctive relief prohibiting Chancellor Aiken from requiring the preclearance of communications with prospective student athletes: (1) by University students who do not represent the athletic interests of the University and who do not intend to and will not recruit prospective student athletes; and (2) on matters of public concern by University faculty who do not represent the athletic interests of the University and who do not intend to and will not recruit prospective student athletes.
The Court held a hearing on Plaintiffs' Motion for Temporary Restraining Order, and on April 6, 2001, issued an Order finding the Preclearance Directive overbroad and granting the motion for a temporary order prohibiting its enforcement. The order remains in effect pending further order of the Court, as the preliminary injunction hearing has been postponed several times at the request of the parties.
On June 5, 2001, 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. Vince Ille, Assistant Director for Compliance, at the Division of Intercollegiate Athletics. Thank you.
Plaintiffs then requested leave to file an amended complaint that added claims for damages on behalf of certain Plaintiffs, included a cause of action based upon Chancellor Aiken's June 5, 2001, email, and added the new Chancellor, Nancy Cantor, who replaced Chancellor Aiken as of July 21, 2001. During an October 11, 2001, hearing, the Court granted the Motion to Amend but declined to certify this matter as a class action.
Defendants have now moved to dismiss the First Amended Complaint, arguing that as a result of Chancellor Aiken's retraction, there is no remaining case or controversy, and the issues in this lawsuit are moot. It is this motion, and Plaintiffs' opposition thereto, that are now before the Court.
DISCUSSION
In resolving a motion to dismiss, this Court must consider all well-pled facts as true and must draw all inferences in favor of the non-moving party. Bontkowski v. First Nat. Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993), cert. denied, 114 S.Ct. 602 (1993). In ruling on a motion to dismiss, courts consider whether relief is possible under any set of facts that could be established consistent with the allegations in the Complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). This Court will dismiss a claim only if it is beyond doubt that no set of facts would entitle the Plaintiff to relief. Chaney v. Suburban Bus Div., 52 F.3d 623, 627 (7th Cir. 1995); Venture Associates Corp. v. Zenith Data Systems Corp., 987 F.2d 429, 432 (7th Cir. 1993).
I. Count I
A. Injunctive Relief
Defendants assert that Chancellor Aiken's "permanent retraction" of the Preclearance Directive eliminates any real controversy between the parties, rendering the issues raised in Count I Plaintiffs' complaint moot. In support of their position that this case is not moot, Plaintiff's cite Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 189 (2000), for the proposition that voluntary cessation of allegedly illegal conduct does not render a case moot unless the defendant can demonstrate that it is "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to occur." The rationale for this is that in the absence of such a rule, a defendant could voluntarily cease the challenged conduct in order to moot the lawsuit, and then immediately "return to his old ways" once the coast was clear. United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953). Defendants bear a heavy burden in making this showing that the matter is moot. Id. at 633.
Defendants previously moved to dismiss Count I of the Amended Complaint as moot based on the "permanent retraction" and departure of Chancellor Aiken. Although Chancellor Aiken had retracted the preclearance requirement and was no longer in a position to take action, the Court denied the motion after finding that there was no evidence of Chancellor Cantor's position on this issue and that the absence of adequate proof in this respect precluded a finding that the wrongful behavior could not reasonably be expected to recur.
Defendants have now submitted the sworn affidavit of Chancellor Cantor. In her affidavit, Chancellor Cantor states:
I hereby concur with Chancellor Aiken's June 5, 2001, permanent retraction of the following statement found in Chancellor Aiken's March 2, 2001 e-mail message: "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 or Athletics or his designee."
(Cantor Affidavit, ¶ 4.) Thus, Defendants have now submitted evidence that the Court finds adequate to establish that Chancellor Cantor does not intend to reinstate a preclearance requirement with respect to the type of speech at issue in this case.
Plaintiffs respond that Chancellor Cantor's intentions with respect to future interpretation and enforcement of NCAA rules against faculty, students, and staff remains unclear. However, that is not the issue before the Court in Count I. Despite repeated efforts to have the Court pass judgment on the constitutionality of the NCAA rules and the University's interpretation thereof, what was presented to the Court in Count I, and what the Court has found to be problematic, was the University's imposition of a prior restraint on speech directed toward prospective student athletes. As the Preclearance Directive, the vehicle by which the prior restraint was implemented, has been permanently retracted by Chancellor Aiken, and Chancellor Cantor has indicated that she agrees with the permanent retraction of a preclearance requirement, the Court finds that Defendants have sufficiently demonstrated that the policy from which Plaintiffs sought relief no longer exists and that the illegal prior restraint of speech at issue in this case cannot reasonably be expected to reoccur. Accordingly, the claim for injunctive relief sought in Count I of the First Amended Complaint is moot, and this aspect of Defendants' Motion to Dismiss will be granted.
B. Declaratory Relief
Plaintiffs argue that even if their claim for injunctive relief is moot, they also seek declaratory relief and are nevertheless entitled to a declaratory judgment that Chancellor Aiken's March 2, 2001, email violated their First Amendment rights. The Court agrees that this discrete issue survives the Motion to Dismiss.
C. Damages
Plaintiffs Crue, Farnell, Hoxie, Kaufman, and Phillips seek money damages for injuries they suffered as a result of the University's restriction on their speech from the issuance of the Preclearance Directive on March 2, 2001, through the entry of the Temporary Restraining Order in this case on April 6, 2001. In their response to the Motion to Dismiss, Plaintiffs clarify that damages for Count I are only sought against former Chancellor Aiken, as Chancellor Cantor had no personal involvement in the issuance of the March 2, 2001, Preclearance Directive.
Defendants respond that Chancellor Aiken is entitled to qualified immunity. In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the United States Supreme Court enunciated the "modern standard to be applied in qualified immunity cases." Auriemma v. Rice, 895 F.2d 338, 341 (7th Cir. 1990). The Court stated:
Governmental officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.
Harlow, 457 U.S. at 818. The test for qualified immunity is "whether the law was clear in relation to the specific facts confronting the public official when [he or she] acted." Green v. Carlson, 826 F.2d 647, 649 (7th Cir. 1987). In deciding whether a defendant will enjoy qualified immunity, courts must determine: "(1) whether the plaintiff has asserted a violation of a federal right, and (2) whether the constitutional standards implicated were clearly established at the time in question." Eversole v. Steele, 59 F.3d 710, 717 (7th Cir. 1995), citing Kernats v. O'Sullivan, 35 F.3d 1171, 1176 (7th Cir. 1994). The first issue is a threshold issue. If the plaintiff fails to state a violation of a federal right, then the plaintiff's claim fails altogether and the court need not go on to decide whether the law was clearly established at the time of the offense. See Marshall v. Allen, 984 F.2d 787, 793 (7th Cir. 1993); Zorzi v. County of Putnam, 30 F.3d 885, 892 (7th Cir. 1994); Eversole, 59 F.3d at 717. In outlining the approach a court must take in addressing qualified immunity, the Seventh Circuit has advised:
Once the defendant's actions are defined or characterized according to the specific facts of the case this characterization is compared to the body of law existing at the time of the alleged violation to determine if constitutional, statutory, or case law shows that the now specifically defined actions violated the clearly established law.
Landstrom v. Ill. Dept. of Children Family Serv., 892 F.2d 670, 675 (7th Cir. 1990), quoting Rakovich v. Wade, 850 F.2d 1180, 1209 (7th Cir. 1988) (en banc), cert. denied, 109 S.Ct. 497 (1989).
Based on the allegations in the complaint, it is clear that Plaintiffs have alleged a prior restraint in violation of their First Amendment right to freedom of speech. The question then becomes whether their right to be free from such a restriction was clearly established on March 2, 2001. The Court notes that long before Chancellor Aiken issued his Preclearance Directive, the Supreme Court had held that "any prior restraint on expression comes to this Court with a `heavy presumption' against its constitutional validity." CBS v. Davis, 510 U.S. 1315, 114 S.Ct. 912, 914 (1994); FW/PBS, Inc. v. City of Dallas, 493 U.S. 214, 225 (1990). In fact, prior restraints, often referred to as a "most extraordinary remed[y]", have been upheld "only where the evil that would result from the reportage is both great and certain and cannot be militated by less intrusive measures." Davis, 114 S.Ct. at 914.
In Gay Lib v. University of Missouri, 558 F.2d 848, 857 (8th Cir. 1977), the Eight Circuit looked toward Supreme Court precedent and noted that "it is axiomatic that the First Amendment must flourish as much in the academic setting as anywhere else. To invoke censorship in academic environment is hardly the recognition of a healthy democratic society." (Internal citations omitted.) The court then found that "the restriction of First Amendment rights in the present context may be justified only by a far greater showing of a likelihood of imminent lawless action than that presented here." Id. at 854. This standard has also been phrased as a prohibition on the right of free expression unless that expression "materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school." University of Southern Mississippi Chapter of the Mississippi Civil Liberties Union v. University of Southern Mississippi, 452 F.2d 564, 565 (5th Cir. 1971), citing Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733 (1969).
The court in the University of Southern Mississippi case also noted that the University's reliance on "unfounded prog-nostication of future conduct" or "vaguely predictive, misconduct" rather than evidence of actual misconduct was insufficient to justify curtailment of constitutionally favored expression. 452 F.2d at 567.
Here, the University has made no showing that the proposed speech presents a likelihood of imminent lawless action or that the speech would materially and substantially interfere with the requirements of appropriate discipline in the operation of the University. To the contrary, all that has been demonstrated is the subjective belief of certain University officials that the proposed speech might subject the University to some sort of sanction by the NCAA. This is plainly insufficient to justify the broad prior restraint on speech imposed by the Preclearance Directive under the precedent cited above, and it should have been apparent to a reasonable school official that enforcing the Preclearance Directive against Plaintiffs would violate their constitutional rights. Accordingly, Chancellor Aiken is not entitled to qualified immunity on the damages claim asserted in Count I.
II. Count II
In Count II, Plaintiffs allege that Chancellor Aiken's June 5, 2001, email remains in force under Chancellor Cantor's administration and continues to require faculty and students to adhere to NCAA rules. Plaintiffs further allege that the June 5, 2001, email, in conjunction with the prior testimony of then Chancellor Aiken that faculty and students may be disciplined for intentionally contacting prospective student athletes in violation of the NCAA rules, causes them to fear punishment for exercising their First Amendment rights by communicating with prospective student athletes.
Chancellor Aiken's June 5, 2001, email states in relevant part:
The retraction of the above-quoted language from my earlier e-mail message 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. Vince Ille, Assistant Director for Compliance, at the Division of Intercollegiate Athletes. Thank you.
The plain language of this email imposes no continuing restraint or restriction on the First Amendment rights of the Plaintiffs and does not "require" compliance with NCAA rules. It merely states the University's commitment to complying with the NCAA rules in the recruitment of athletes and encourages members of the University community to do the same. Contrary to Plaintiffs' suggestion, the plain meaning does not evidence a continuing threat of punishment or discipline by Chancellor Cantor or any indication of an intent to impose another prior restraint on the speech of the University community.
Under the United States Constitution, the Court's jurisdiction is limited to actual cases and controversies. U.S. CONST., Article III, Section 2. "A case is moot when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." Stotts v. Community Unit School District No. 1, 230 F.3d 989, 991 (7th Cir. 2000), citing Powell v. McCormack, 395 U.S. 486, 496 (1969). If at any time during the pendency of an action, a case no longer presents an actual, ongoing controversy, it must be dismissed as non-justiciable unless the circumstances can fit within a narrow exception to the mootness rule as a case "capable of repetition yet evading review." Id. To qualify for this exception, a case must satisfy two requirements: "(1) the duration of the case must be too short to allow a determination on the merits and (2) the particular plaintiff must have a reasonable expectation of suffering from the same harm again." Id., citing Murphy v. Hunt, 455 U.S. 478, 482 (1982); Tobin for Governor v. Illinois State Board of Elections, 268 F.3d 517, 529 (7th Cir. 2001).
The Court has already determined on a preliminary basis that the contacts proposed by Plaintiffs do not run afoul of the NCAA's written bylaws. The March 2, 2001, Preclearance Directive has been permanently withdrawn, and the Court has further determined that the June 5, 2001, email imposes no continuing or additional obligation on Plaintiffs or makes any credible threat of punishment against them. "Past exposure to illegal conduct does not in itself show a present case or controversy," and there is no allegation that any Plaintiff has been disciplined or punished for engaging in protected speech. O'Shea v. Littleton, 414 U.S. 488, 495 (1974). The injuries alleged in Count II are speculative or hypothetical harms that may possibly be incurred at some time in the unspecified future if the Defendants take certain unidentified actions, and Plaintiffs have simply not alleged facts from which a reasonable expectation of suffering the same harm again could be reasonably inferred. See Tobin for Governor, 268 F.3d at 529 (finding that where numerous contingencies would need to occur before a plaintiff would be subject to the same injuries, "it is pure speculation that these contingencies all will reoccur [and] the `capable of repetition' exception to the mootness doctrine does not apply"; Sierakowski v. Ryan, 223 F.3d 440, 443 (7th Cir. 2000) (noting that "the Supreme Court has made clear that in order to invoke Article III jurisdiction a plaintiff in search of prospective equitable relief must show a significant likelihood and immediacy of sustaining some direct injury.") Thus, the exception to the mootness doctrine does not apply.
Generally, in order for a dispute to be ripe for adjudication:
[T]he controversy must be definite and concrete, touching the legal relations of parties having adverse interests. It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical set of facts.
Deveraux v. City of Chicago, 14 F.3d 328, 331 (1994) (internal citations omitted.) Count II of the First Amended Complaint does not present a definite and concrete controversy, and any relief granted pursuant to those allegations would constitute nothing more than an advisory opinion on what the law would be as applied to a set of hypothetical facts. As a result, the Court finds that the allegations in Count II assert no present case or controversy. Accordingly, Count II will be dismissed in its entirety as non-justiciable, and for the same reasons, the Court cannot appropriately consider Plaintiffs' separate request for declaratory judgment.
CONCLUSION
For the reasons set forth above, Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint [#51] is GRANTED IN PART and DENIED IN PART. The Motion is granted with respect to the claim for injunctive relief in Count I and the entirety of Count II; the Motion is denied with respect to the damages claims and claim for declaratory judgment presented in Count I. As a result of these rulings, Plaintiffs' Motion for Preliminary Injunction [#4-2] is now MOOT.