                            In the
 United States Court of Appeals
               For the Seventh Circuit
                         ____________

Nos. 02-3627, 03-2281 & 03-2951
CYDNEY A. CRUE, JOHN M. MCKINN,
DEBBIE A. REESE, BRENDA M. FARNELL,
FREDERICK E. HOXIE, STEPHEN KAUFMAN,
and PHILIP W. PHILLIPS,
                                            Plaintiffs-Appellees,
                                v.

MICHAEL AIKEN,
                                          Defendant-Appellant.

                         ____________
           Appeals from the United States District Court
                 for the Central District of Illinois.
            No. 01 C 1144—Michael M. Mihm, Judge.
                         ____________
     ARGUED FEBRUARY 9, 2004—DECIDED JUNE 1, 2004
                    ____________


  Before BAUER, MANION, and EVANS, Circuit Judges.
  EVANS, Circuit Judge.           This case, raising First
Amendment issues involving the University of Illinois,
concerns “Chief Illiniwek,” who, depending on one’s point of
view, is either a mascot or a symbol of the university. More
on this distinction later but first, before getting to the issue
at hand, we detour for a brief look at college nicknames and
their embodiment as mascots.
2                         Nos. 02-3627, 03-2281 & 03-2951

   In the Seventh Circuit, some large schools—Wisconsin
(Badgers), Purdue (Boilermakers), Indiana (Hoosiers),
Notre Dame (The Fighting Irish), DePaul (the Blue De-
mons), the University of Evansville (Purple Aces), and
Southern Illinois (Salukis)—have nicknames that would
make any list of ones that are pretty cool. And small schools
in this circuit are no slouches in the cool nickname depart-
ment. One would have a hard time beating the Hustlin’
Quakers of Earlham College (Richmond, Indiana), the Little
Giants of Wabash College (Crawfordsville, Indiana), the
Mastodons of Indiana University-Purdue University-Fort
Wayne (Fort Wayne, Indiana), and the Scarlet Hawks of the
Illinois Institute of Technology.
  But most schools have mundane nicknames. How can one
feel unique when your school’s nickname is Tigers (43
different colleges or universities),1 Bulldogs (40 schools),
Wildcats (33), Lions (32), Pioneers (31), Panthers or Cou-
gars (30 each), Crusaders (28), or Knights (25)? Or how
about Eagles (56 schools)? The mascots for these schools,
who we assume do their best to fire up the home crowd, are
pretty generic—and pretty boring.
  Some schools adorn their nicknames with adjectives—
like “Golden,” for instance. Thus, we see Golden Bears,
Golden Bobcats, Golden Buffaloes, Golden Bulls, Golden
Eagles (15 of them alone!), Golden Flashes, Golden Flyers,
Golden Gophers, Golden Griffins, Golden Grizzlies, Golden
Gusties, Golden Hurricanes, Golden Knights, Golden Lions,
Golden Panthers, Golden Rams, Golden Seals, Golden Suns,
Golden Tigers, and Golden Tornados cheering on their
teams.
  All this makes it quite obvious that, when considering
college nicknames, one must kiss a lot of frogs to get a


1
 See list compiled by Adam            Joshua   Smargon    at
www.smargon.net/nicknames.
Nos. 02-3627, 03-2281 & 03-2951                                  3

prince. But there are a few princes. For major universities,
one would be hard pressed to beat gems like The Crimson
Tide (Alabama), Razorbacks (Arkansas), Billikens2 (St.
Louis), Horned Frogs (TCU), and Tarheels (North Carolina).
But as we see it, some small schools take the cake when it
comes to nickname ingenuity. Can anyone top the Anteaters
of the University of California-Irvine; the Hardrockers of
the South Dakota School of Mines and Technology in Rapid
City; the Humpback Whales of the University of Alaska-
Southeast; the Judges (we are particularly partial to this
one) of Brandeis University; the Poets of Whittier College;
the Stormy Petrels of Oglethorpe University in Atlanta; the
Zips of the University of Akron; or the Vixens (will this
nickname be changed if the school goes coed?) of Sweet
Briar College in Virginia? As wonderful as all these are,
however, we give the best college nickname nod to the
University of California-Santa Cruz. Imagine the fear in the
hearts of opponents who travel there to face the imagina-
tively named “Banana Slugs”?3
  From this brief overview of school nicknames, we can see
that they cover a lot of territory, from the very clever to the
rather unimaginative. But one thing is fairly clear—
although most are not at all controversial, some are. Even
the Banana Slug was born out of controversy. For many


2
    What in the world is a “Billiken”?
3
   As evidence of the Banana Slug’s uniqueness, we offer this:
of all the nicknames to choose from, acclaimed film director
Quentin Tarantino selected it to appear in one of the memorable
scenes of his 1994 classic, “Pulp Fiction.” Although the movie in-
cludes scores of unique scenes (film critic Roger Ebert gushes over
it in his 2002 book, The Great Movies), it was certainly shocking
to see stone-cold killer Vincent Vega (John Travolta) wearing a
Banana Slug T-shirt after being “cleansed” at the end of the
picture (but not the end of the story—you have to see it to grasp
the distinction).
4                          Nos. 02-3627, 03-2281 & 03-2951

years, a banana slug (ariolomax dolichophalus to the work
of science) was only the unofficial mascot at UC-Santa
Cruz.4 In 1981, the chancellor named the “Sea Lion” as
the school’s official mascot. But some students would have
none of that. Arguing that the slug represented some of the
strongest elements of the campus, like flexibility and
nonagressiveness, the students pushed for and funded a
referendum which resulted in a landslide win for the
Banana Slug over the Sea Lion. And so it became the offi-
cial mascot.
  Not all mascot controversies are “fought” out as simply as
was the dispute over the Banana Slug. Which brings us to
the University of Illinois where its nickname is the “Fight-
ing Illini,” a reference to a loose confederation of Algonquin
Indian Tribes that inhabited the upper Mississippi Valley
area when French explorers first journeyed there from
Canada in the early seventeenth century. The university’s
mascot, to mirror its nickname—or to some its symbol—is
“Chief Illiniwek.” Chief Illiniwek is controversial. And the
controversy remains unresolved today.
  Chief Illiniwek does not participate in traditional cheer-
leading activities, but he does “perform” at athletic events.
Whether his presence, and what he does, makes him more
mascot than symbol, or vice versa, is really for others to
decide. Suffice to say that opponents consider him to be a
mascot, while supporters often refer to him as a symbol.
The “debate,” however, over the use of Native-American
names whether as logos, mascots, or symbols is not unique
to the University of Illinois.
  Forty years ago, Marquette University used a mascot
named “Willie Wampum”—a crude Indian caricature with
a huge papier-mâché head (about 4 feet high!)—to whip up
the crowd at its basketball games in support of its nick-


4
    See slug.web.com.
Nos. 02-3627, 03-2281 & 03-2951                                 5

name—Warriors. Marquette is now the Golden Eagles.
Similarly, the Stanford Indians became the “Cardinal,”
St. John’s transformed from “Red Men” to “Red Storm,”
Miami of Ohio moved from “Redskins” to “Redhawks,” and
Eastern Michigan went from “Hurons” to “Eagles.” Some
schools, most notably Florida State (“Seminoles”) and the
University of North Dakota5 (the Fighting Sioux), have re-
sisted change. And so has the University of Illinois.
  Chief Illiniwek traces his existence to 1926 when, accord-
ing to the University of Illinois web site, as assistant band
director “conceived the idea of having a Native American
war dance performed at halftime at the Illinois-Pennsylva-
nia game.” A student, wearing “a homemade costume
complete with a war bonnet made of turkey feathers,”
performed a dance at halftime, which “was a big hit.”
According to NCAA News (April 23, 2001), the student
mascot also smoked a “peace pipe” at halftime with
Pennsylvania’s mascot, “William Penn.”
  From the home page of the UIUC web site, we are in-
formed as to how the chief was named:
    The expression “Illiniwek” was first used in conjunction
    with the University of Illinois by football coach Bob
    Zuppke in the mid 1920’s. Zup was a philosopher and
    historian by training and inclination, and he was



5
  It’s quite possible that the University of North Dakota is still
the “Fighting Sioux” because its $100 million ice hockey arena,
which was under construction in 2000, depended on it. According
to the April 23, 2001, edition of NCAA News, “News & Features,”
a hot debate over the school’s nickname was brewing in Grand
Forks when a wealthy alumnus—who contributed $35 million to
the ice hockey arena—threatened to close the project down if the
“Fighting Sioux” nickname and related logo were retired. The
North Dakota State Board of Higher Education subsequently
voted to keep the status quo.
6                          Nos. 02-3627, 03-2281 & 03-2951

    intrigued by the concept the Illini peoples held about
    their identity and aspirations. They spoke a dialect of
    the Algonquin language and used the term “Illiniwek”
    to refer to the complete human being—the strong, agile
    human body; the unfettered human intellect; the in-
    domitable human spirit.
  Chief Illiniwek’s “costume” underwent several revisions
before settling on its present incarnation in 1982. Similarly,
the chief’s dance, involving intricate footwork and fast,
spinning movements with split jumps and high kicks, has
changed over the years. While these changes were taking
place, some opposition to the presence of the chief began to
percolate around Urbana-Champaign, beginning around
1975.
 The earliest signs of protest we could find appear in the
university’s 1975 yearbook, where this appears:
             A CHALLENGE TO THE CHIEF
    Chief Illiniwek has been hailed as a symbol of
    University spirit since 1926. But while thousands have
    cheered his acrobatic gyrations during halftime, others
    look upon him with disgust.
    “Chief Illiniwek is a mockery not only of Indian customs
    but also of white people’s culture,” said Bonnie Fultz,
    Citizens for the American Indian Movement (AIM)
    executive board member. According to Fultz, the
    continued use of Indian history as entertainment
    degrades the Indian and disgraces the white race by
    revealing an ignorance of tribal cultures.
    “The Illiniwek exhibition is tantamount to someone
    putting on a parody of a Catholic Mass,” Norma Linton,
    Citizens for AIM member and visiting anthropology lec-
    turer at the University said. She continued by saying
    that Chief Illiniwek is an inaccurate composite.
Nos. 02-3627, 03-2281 & 03-2951                            7

   “The Indians within the Illinois area are of a different
   tribal culture. The idea of symbols from several differ-
   ent tribes mashed together angers Indians,” she added.
   “They do not want their individual tribal customs
   combined and distorted, but want their traditions to
   remain separate and unique.”
   Mike Gonzalez, the current Chief, said that the only
   requirement in being considered for the position is an
   eagle spread jump. However, Gonzalez felt that
   Illiniwek is “majestic” and a symbol of fighting spirit.
   “In no way does it degrade the American Indian,”
   Gonzalez said. “I think Illiniwek honors the Indian.”
   John Bitzer, Illiniwek from 1970-73, also defended the
   role. “Other university mascots are just caricatures
   but Illiniwek portrays the Indians as they would want
   to be portrayed.”
   Rep. A. Webber Borchers, R-Decatur, the originator of
   the costume while a student at the University, also
   spoke in defense of Chief Illiniwek. “It’s the most out-
   standing tradition of any university in the land, with no
   intention of disrespect to the Indians,” he said.
   University officials have sensed the Chief Illiniwek
   controversy. The symbol of Chief Illiniwek was removed
   from University stationary this year to appease AIM.
   Everett Kissinger, coordinator of Chief Illiniwek and
   marching band director, was indignant about the
   controversy. “Illiniwek has been a tradition here since
   1926, and I don’t want you people (reporters) opening
   up a lot of problems about it,” he said. Kissinger in turn
   has ordered Gonzalez to avoid radio interviews and
   large-scale publicity about his role as Chief.
  The first sounds of protest over Chief Illiniwek in 1975
have grown to a crescendo. Many people today find him
to be offensive, including the Peoria Tribe of Indians of
Oklahoma, known collectively as the Illiniwek or Illinois
8                            Nos. 02-3627, 03-2281 & 03-2951

Nations, who just a few years ago formally voted to ask the
university to stop using him as a mascot. And that takes us
to today’s suit where a loose group of faculty members and
a graduate teaching assistant6 at the university escalated
the debate a little further. The group, whom we will simply
call “plaintiffs,” claim that the chief creates a hostile
environment for Native American students and that he
promotes dissemination of inaccurate information in an
educational setting. They have expressed their opposition
to Chief Illiniwek through public speeches, letter writing,
meetings with student groups, and by submitting newspa-
per articles for publication. They have also attended
meetings protesting what they term is his use as a mascot.
The university has not interfered with any of these activi-
ties.
   It was not until the plaintiffs expressed interest in con-
tacting prospective student-athletes about the controversy
surrounding Chief Illiniwek that the university began to
frown on their activities. The university was alerted to their
activities by a press account on February 28, 2001, wherein
some plaintiffs made known their intention to contact
prospective student-athletes and inform them of the Chief
Illiniwek controversy and the implications of competing
athletically on behalf of a university which they said
employs racial stereotypes. That got the university’s
attention.
  Vincent Ille, the assistant director of athletics, asked the
membership services coordinator of the National Collegiate
Athletics Association (NCAA) whether NCAA rules applied
to contacts by faculty members with prospective student-
athletes.


6
  The teaching assistant, Cydney Crue, identifies herself as a
student; defendant Aiken claims she is a faculty member. For
purposes of this decision, it is not necessary for us to decide this
issue of university politics.
Nos. 02-3627, 03-2281 & 03-2951                            9

  Two days later, on March 2, 2001, the chancellor of the
university, defendant Michael Aiken, sent the e-mail which
precipitated this 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 Associa-
   tion (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 prospec-
   tive athletes. It is the responsibility of the coaches and
   administration in the Division of Intercollegiate Athlet-
   ics 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, Cham-
   paign, IL 61820, (217) 333-5731, E-mail: ille@uiuc.edu.
Immediately, the university administration received ques-
tions about the reach of what was accurately termed a
10                          Nos. 02-3627, 03-2281 & 03-2951

“preclearance directive.” Chancellor Aiken directed Associ-
ate Chancellor Larry Mann to oversee Mr. Ille as he
responded to inquiries.
  The same day Aiken’s e-mail went out, plaintiff Frederick
Hoxie e-mailed Aiken, stating his desire to advise prospec-
tive student-athletes of the university’s unresponsiveness
to the concerns of Native Americans. Hoxie said he thought
the preclearance directive barred him from writing to
prospective students, and he asked for guidance.
  Almost a week after Hoxie’s request, on March 8, Ille
asked the NCAA, in writing, for guidance as to whether its
rules applied in six specific situations:
     1. telephone calls where the recipient is “selected
        based on his or her participation in athletics”
     2. telephone calls “for the purpose of discussing issues
        related to athletics or the prospective student-
        athlete’s possible participation in intercollegiate
        athletics”
     3. correspondence where the recipient is “selected
        based upon his or her participation in athletics”
     4. correspondence “for the purpose of addressing
        issues related to athletics or the prospective stud-
        ent-athlete’s possible participation in intercollegiate
        athletics”
     5. in-person off-campus contact where the recipient is
        “selected based upon his or her participation in
        athletics”
     6. in-person off-campus contact “for the purpose of
        addressing issues related to athletics or the pro-
        spective student-athlete’s possible participation in
        intercollegiate athletics”
The NCAA replied the same day:
Nos. 02-3627, 03-2281 & 03-2951                            11

    NCAA recruiting regulations are designed in part
    to protect prospective student-athletes from undue
    pressures that may interfere with their scholastic or
    athletics interest as well as to promote equity among
    member institutions in their recruiting of prospects. In
    this regard, if an institution either identifies and con-
    tacts a group of prospective students based on their
    athletics ability or contacts prospective students to
    discuss their athletics participation those contacts are
    subject to NCAA regulations. Therefore, as outlined in
    your questions, if an institutional staff member makes
    a telephone contact, an in-person off-campus contact or
    sends written correspondence to a prospective student
    to discuss his or her athletics ability or possible par-
    ticipation in intercollegiate athletics such contacts
    would be considered recruiting contacts and would be
    subject to NCAA regulations. Further, if an institu-
    tional staff member makes a telephone contact, an in-
    person contact or sends written correspondence to
    prospective students who have been identified based on
    their athletics ability such contacts would be considered
    recruiting contacts regardless of the content of the
    message and thus would also be subject to NCAA
    regulations. I hope this information is helpful. Please
    feel free to contact me if you have further questions.
  After receiving the NCAA response, on March 14, Ille in-
formed Hoxie that the directive applied in four situations:
when a prospective student-athlete is identified for contact
based on participation in athletics, if the contact is made to
address any issue relating to athletics, if it is made to
address the prospective student’s possible participation in
athletics, or if it is made at the request of a member of the
athletics department.
  On March 19, the statements from his e-mail were es-
sentially reiterated by Chancellor Aiken in an address to
the faculty Senate:
12                         Nos. 02-3627, 03-2281 & 03-2951

     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 ex-
     pression 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 nu-
     merous 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, leaf-
     leting, and public speeches. Various faculty members
     and others have availed themselves of these opportuni-
     ties over the years.
Nos. 02-3627, 03-2281 & 03-2951                            13

    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 Amend-
    ment and other issues. Engaging in a debate at this
    time about such matters hardly seems helpful or
    productive.
  In two ways, Aiken’s statement was broader than the
NCAA response: it applied to students as well as staff
members, and it applied to all prospective contacts with
prospective student-athletes. Similarly, Mr. Ille did not
limit the reach of the preclearance directive. Rather, he said
it applied to any contacts made “for the purpose of ad-
dressing any issue related to athletics.” Ille insisted that
persons intending to contact prospective athletes inform
him of what they were going to be talking about.
  These statements were seen by the plaintiffs as prior
restraints on their free-speech rights so they filed this
lawsuit on March 22. The district judge, the Honorable
Michael M. Mihm, after a hearing on April 4, 2001, granted
the plaintiffs’ request and issued a temporary restraining
order (TRO) two days later. The TRO enjoined the chancel-
lor from enforcing the preclearance directive. After the
entry of the TRO, Chancellor Aiken retracted part of his
original e-mail in a second e-mail sent June 5, 2001:
    As you may recall, on March 2, 2001, I sent an e-mail
    message to persons associated with the University re-
    garding “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 Direc-
    tor 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
14                         Nos. 02-3627, 03-2281 & 03-2951

     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 commit-
     ment to complying with NCAA rules in the recruit-
     ment 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.
  Despite the retraction (which rendered the TRO moot)
and the appointment of a new chancellor,7 the case pro-
ceeded. The district judge ultimately entered summary
judgment for the plaintiffs on their request for a declaratory
judgment that the directive violated their First Amendment
rights; he ordered nominal damages of $1,000 to plaintiffs
Cydney Crue, Brenda Farnell, Hoxie, Stephen Kaufman,
and Philip Phillips plus attorney’s fees to them as prevail-
ing parties. Chancellor Aiken appeals.
  On the merits, the issue before us is whether the March
2 e-mail violated the plaintiffs’ First Amendment rights. A
secondary issue is whether Chancellor Aiken, in his indi-
vidual capacity, is entitled to qualified immunity because
the law at the time the e-mail was in force did not clearly
establish that it violated the First Amendment. We review
a grant of summary judgment de novo.


7
  We note, off the record, that the new chancellor has now re-
signed. According to the Chicago Tribune, February 26, 2004,
Chancellor Nancy Cantor, who favors retiring Chief Illiniwek,
resigned but denied that it was because of the chief.
Nos. 02-3627, 03-2281 & 03-2951                            15

  As a preliminary matter, we will mention the claim that
this action must be dismissed as moot because the offending
e-mail has been retracted and Chancellor Aiken has
resigned. Those facts render the request for injunctive relief
moot; however, the requests for declaratory relief and for
damages remain. When a claim for injunctive relief is
barred but a claim for damages remains, a declaratory
judgment as a predicate to a damages award can survive.
Wolff v. McDonnell, 418 U.S. 539 (1974); see also Powell v.
McCormack, 395 U.S. 486 (1969); Penny Saver Publ’ns, Inc.
v. Village of Hazel Crest, 905 F.2d 150 (7th Cir. 1990).
Accordingly, we will proceed to the merits.
  There is no doubt that the speech involved here concerns
a matter of public concern. And so to decide the merits of
the dispute we must perform a balancing test. The parties
disagree, however, what test should be applied. Is it 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)?
Both cases and their tests concern the scope of free-speech
rights enjoyed by public employees. 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 Pickering Court struck a balance between the in-
terests of the employee, as a citizen, in commenting upon
matters of public concern and the interest of the State, as
an employer, in promoting the efficiency of the public ser-
vices it performs through its employees. Pickering was
a teacher in a public school who wrote a letter to a local
newspaper criticizing the school board’s handling of a bond
issue. The board dismissed him from employment. After
balancing the respective rights, the Court determined that,
16                        Nos. 02-3627, 03-2281 & 03-2951

in the situation before it, the dismissal was improper. In
Connick v. Myers, 461 U.S. 138, 140 (1983), the Court
further fleshed out its view of what constitutes “matters of
public concern.”
   Then, in NTEU, the Court considered the constitution-
ality of a law setting out a broad prohibition on federal
employees receiving compensation for making speeches
or writing articles. The Court noted that the Pickering
test did not quite fit the situation before it. NTEU said
Pickering involved a post hoc analysis of one employee’s
speech and its impact on that employee’s public responsibil-
ities. The ban in NTEU was in the nature of a prior re-
straint on a large number of people on a multitude of
issues. The Court determined that, when imposing a prior
restraint on employee speech, the government has a greater
burden than when it is making an isolated employment
decision. With a prior restraint, the government must
demonstrate that
     the interests of both potential audiences and a vast
     group of present and future employees in a broad range
     of present and future expression are outweighed by that
     expressions’ “necessary impact on the actual operation”
     of the Government.
NTEU, 513 U.S. at 468, quoting Pickering, 391 U.S. at 571.
  Chancellor Aiken points out that the prior restraint in
NTEU was broader than the one here. He argues, therefore,
that we must use a Pickering analysis. We disagree. We are
not considering whether the university improperly disci-
plined an individual for a single statement. Even though
there are differences in scope between the enormously wide
ban in NTEU and the one here, Chancellor Aiken’s directive
is a broad prohibition on speech on a matter of significant
importance and public concern. It applied to 44,000 mem-
bers of the university community, including students. The
broad scope of the March 2 directive requires, we think, an
analysis under the NTEU test.
Nos. 02-3627, 03-2281 & 03-2951                             17

  We have applied the NTEU test in a case involving a
prior restraint which is similar to the one now before us. In
Milwaukee Police Association v. Jones, 192 F.3d 742 (7th
Cir. 1999), Police Chief Arthur Jones issued a directive to
his officers forbidding them from discussing with anyone,
including their union representatives, any verbal or written
complaint they might make against another officer. Later,
the directive was clarified and expanded by subordinate
officers in the police department. We found that the NTEU
test was appropriate because the directive banned speech
generally; it was not an isolated disciplinary response to
previously uttered speech.
  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. It
points out that the NCAA has broad authority to enforce its
rules and to sanction institutions and athletes for viola-
tions. For minor violations it can terminate an institution’s
recruitment of an athlete, impose ineligibility on an athlete,
require the institution to forfeit a game for a rules violation,
impose a fine, or reduce the number of financial aid awards
the institution can grant. NCAA bylaw 19.6.1. For more
serious violations it can place an institution on probation,
prohibit recruiting efforts for a year, reduce the number of
financial aid awards it can grant, and even terminate
institutional staff members. NCAA bylaw 19.6.2. And in
this case, in fact, NCAA and Big Ten officials informed
Chancellor Aiken that the NCAA rules covered communica-
tions designed to dissuade athletes from enrolling in the
18                         Nos. 02-3627, 03-2281 & 03-2951

university. In addition to protecting itself from sanctions,
the university also says it wants to protect prospective
athletes from undue pressure and to maintain an efficient
recruiting program.
   For their part, the plaintiffs assert their long-stand-
ing 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.” NTEU, 513
U.S. at 466. They say they do not intend to harm the uni-
versity but seek to make it a better place “free of a mascot
that mocks the religious rituals of Native Americans.” They
also say they have an interest in the timeliness of their
activity because the NCAA rules limit the timing of recruit-
ing 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.
  Because we are dealing with a significant prior restraint
on speech, we must determine whether the impact of the
speech on the actual operation of the university and its
athletic program outweighs the plaintiffs’ right to free
expression on the matter which is, as we have noted, a clear
issue of public concern. First, we note that the fact that the
NCAA might or might not like the speech cannot ultimately
control a First Amendment issue like this. This is especially
true where, as here, the mission of the NCAA is not related
to the purpose of the speech. It would seem that the
university should reasonably have questioned further the
NCAA response that its rules prohibited the speech at
issue. The plaintiffs were able to easily determine that
there was no real threat that the university would be
penalized because of their activities. In response to an
inquiry, the NCAA stated to the plaintiffs that they may,
Nos. 02-3627, 03-2281 & 03-2951                            19

without causing sanction to the university, send letters
informing prospective student-athletes about the Chief
Illiniwek controversy. Even without that assurance, one
surely could doubt that the NCAA would venture to over-
step its bounds in this manner and be seen as protecting an
individual university’s questionable mascot when so many
other universities have changed theirs. However, were we
faced with a situation in which the university would in
some way be sanctioned based on the plaintiffs’ activities,
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.
  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 associ-
ation might not approve of what they say. Furthermore,
if something said by a plaintiff to prospective student-
athletes 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.
  Chancellor Aiken’s claim of qualified immunity also fails.
Qualified immunity protects from civil liability those who
perform discretionary functions so long as “their conduct
does not violate clearly established statutory or consti-
tutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The
burden in establishing that a right is clearly established
falls on the plaintiff. Gregorich v. Lund, 54 F.3d 410 (7th
Cir. 1995). Whether a right is clearly established depends
on the particular facts of the case. Here, that public employ-
ees retain certain rights to free speech on matters of public
concern has been apparent since the Pickering decision in
20                         Nos. 02-3627, 03-2281 & 03-2951

1968 and NTEU in 1995. We added our voice on a remark-
ably similar situation in Jones in 1999. Chancellor Aiken
sent his critical e-mail in March 2001. He cannot reason-
ably claim that the law was unclear.
  Chancellor Aiken also appeals from the award of attorney
fees. He does not contest the amount of the award, but
rather contends that because the fee request was one day
late it should have been disallowed.
  Rule 54(d)(2)(B) of the Federal Rules of Civil Procedure
says that “[u]nless otherwise provided by statute or order of
the court, the motion must be filed no later than 14 days
after entry of judgment . . . .” Pursuant to the introductory
clause, the United States District Court for the Central
District of Illinois has issued a local rule which requires fee
petitions to be filed within 30 days of final judgment. The
petition in this case was filed on the 31st day. The judge
found that the untimely filing was due to excusable neglect
and accepted the petition. Chancellor Aiken argues that the
neglect in this case was not excusable.
   Fed. R. Civ. P. 6(b) allows for the enlargement of time
after the expiration of the specified period “where the fail-
ure to act was the result of excusable neglect.” The rule also
sets out actions under certain of the rules in which there
can be extensions granted. Rule 54 is not among those.
Indeed, we have determined that Fed. R. Civ. P. 54 is not
jurisdictional. See Johnson v. Lafayette Fire Fighters Ass’n
Local 472, 51 F.3d 726 (7th Cir. 1995). It can and has been
modified by the local rule. In determining whether a late
filing is the result of excusable neglect, the district court
looks to whether there will be prejudice to the opposing
party, the effect on the judicial proceedings, the reason for
the delay, and whether the movant acted in good faith.
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507
U.S. 380 (1993). Our review of a finding of excusable neglect
is only for an abuse of discretion. Robb v. Norfolk & Western
Nos. 02-3627, 03-2281 & 03-2951                             21

Rwy. Co., 122 F.3d 354 (7th Cir. 1997). We afford particular
deference in procedural matters because of the trial judge’s
familiarity with the parties.
  In this case, the delay was as short as possible—one day.
The reason for it was an error in calculating the 30-day
period, which should perhaps be embarrassing to the at-
torney but which surely cannot be said to have been in bad
faith. Nor can it be said that there would be any effect on
the judicial proceedings, particularly as Aiken himself
asked for an extension of time of 60 to 100 days to respond
to the fee petition. And, as a fundamental matter, the dis-
trict judge is in the best position to decide whether the
proceedings are adversely affected. We cannot find an abuse
of discretion in the decision to allow the petition to be filed.
 Accordingly, the judgment of the district court is
AFFIRMED.




  MANION, Circuit Judge, dissenting. The plaintiffs, faculty
members at the University of Illinois, are among a number
of people, in and outside the University, who have for years
objected to the use of Chief Illiniwek as part of the cheer-
leading effort at athletic events, particularly football games.
As the court notes, this symbol is, among other things,
labeled a mockery of Indian customs and white people’s
culture. Criticism by faculty, students, and anyone else at
the University who cared was unrestricted and included
protests, demonstrations, radio and television interviews,
letters to editors and articles published in many venues. To
the plaintiffs, this was not enough. They wanted to write to
22                         Nos. 02-3627, 03-2281 & 03-2951

potential athletic recruits for University teams and discour-
age attendance because of the offensive use of the Chief.
But when the NCAA issued a guarded warning that direct
contact with potential recruits by University officials could
violate NCAA regulations, the University reacted. Chancel-
lor Aiken issued the e-mail that stated in part:
     . . . [T]he 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, em-
     ployees or others associated with the University with-
     out 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. . . . Questions about the rules should be
     addressed to Mr. Vince Ille, Assistant Director for
     Compliance . . . .
The district court ruled that this was an unconstitutional
prior restraint on speech and issued a temporary restrain-
ing order. Chancellor Aiken retracted the directive, but the
damage was done. The court awarded $1,000 damages to
each plaintiff plus attorney’s fees.


                              I.
  On appeal, the critical question before us is which bal-
ancing test applies to the Chancellor’s directive regarding
Nos. 02-3627, 03-2281 & 03-2951                            23

speech by state employees: the balancing test derived from
Pickering v. Board of Education, 391 U.S. 563 (1968), and
Connick v. Myers, 461 U.S. 138, 140 (1983)
(Pickering/Connick), or the strict scrutiny approach of
United States v. National Treasury Employees Union, 513
U.S. 454 (1995) (NTEU). We need to offer clear guidance as
to when the heightened scrutiny of NTEU does and does not
apply. Instead the court treats all prior restraints alike
without balancing the governmental interests at issue. In
effect the court creates a new rule of law pronouncing that
NTEU applies to all “broad prohibitions” on government
employee speech. Such “broad prohibitions” are defined as
involving a “large number” of potential plaintiffs concerning
a matter of “significant importance.” For these and the
following reasons, I respectfully dissent.


                             II.
  As an initial matter, both the district court and this court
summarily conclude that the e-mail is a prior restraint. The
prior restraint label, however, has a significantly different
meaning when applied to the speech of governmental
employees (as is the case here) than when applied to non-
governmental employees. It is clear that “the State’s
interests as an employer in regulating the speech of its
employees ‘differ significantly from those it possesses in
connection with regulation of the speech of the citizenry in
general.’ ” Connick, 461 U.S. at 140 (quoting Pickering, 391
U.S. at 568). While this circuit has not squarely addressed
the variations or gradations of prior restraints in the
government employee context after NTEU, it is well settled
that traditional prior restraint analysis is inappropriate
where the government acts under its special authority as an
employer. See, e.g., Weaver v. United States Information
Agency, 87 F.3d 1429, 1440 (D.C. Cir. 1996). In fact, “courts
have uniformly assessed prior restraints in the setting of
24                         Nos. 02-3627, 03-2281 & 03-2951

government employment by standards less demanding than
those used for traditional prior restraints.” Id. at 1443.
  Calling the e-mail a “preclearance directive,” even if an
accurate label, does not establish that the e-mail constitutes
a prior restraint subject to the heightened scrutiny of
NTEU in the context of government employment. The
distinction between a relatively mild preclearance directive
and a broad general prohibition on speech in the employ-
ment context—i.e., a full-fledged prior restraint—is signif-
icant. We have yet to address in a published opinion
whether NTEU applies in cases of preclearance directives
and we have applied NTEU in only one reported case in-
volving a sweeping, general ban (or prior restraint) on
speech. See Milwaukee Police Assoc. v. Jones, 192 F.3d 742,
750-51 (7th Cir. 1999).
  Jones amplifies the differences between a preclearance
directive and a more sweeping general ban. Jones addresses
a ban on “all communication before it occurs.” Id. at 749.
The Police Chief of Milwaukee issued an order to all police
department employees, stating that if any employee made
a verbal or written complaint against another employee, the
complaint had to remain confidential. Id. at 744-45. In fact,
the Chief’s directive forbade complaining members from
discussing the matter with their lawyer and/or union
representative. Id. at 745. The ban emphasized that
complaining officers “are to be instructed not to discuss the
matter with anyone.” Id. (emphasis added).
  In sum, Jones addresses an actual prohibition of speech
in totality, including mere discussion of the matter. Jones
did not involve a simple prepublication review of speech. Cf.
Weaver, 87 F.3d at 1443 (holding valid under Pickering and
NTEU a prepublication review of speech). In contrast to the
broad, sweeping (and total) ban on speech at issue in Jones,
the e-mail at issue here merely applied to a narrow band of
speech by University employees directed only at potential
Nos. 02-3627, 03-2281 & 03-2951                             25

student athletes who were currently in high school or junior
college. It is undisputed that the e-mail is viewpoint- and
content-neutral, see Ward v. Rock Against Racism, 491 U.S.
781, 791 (1989); Renton v. Playtime Theatres, Inc., 475 U.S.
41, 47-48 (1986), and is not intended to censor any certain
message, whether it be in favor of or against the Chief. See
Appellee’s brief, p. 19 (“[T]he Preclearance Directive applies
without regard to the content of the communication, if the
student is selected because of his or her participation in
athletics.”).
  The e-mail does not purport to prohibit the right to leaf-
let, make speeches, write letters to the editor, or freely
debate/discuss the merits or demerits of the Chief in any
forum. Instead, the plain language of the e-mail merely
reminds potential speakers of the time restrictions imposed
by the NCAA rules on contacting prospective student
athletes. It also cautions that intentional violations of these
rules will not be condoned. This is a prototypical prepublica-
tion review calling for a dialogue between potential speak-
ers and the University in order to assess the appropriate
manner and timing for the speech. The D.C. Circuit has
upheld a similar directive requiring a dialogue with the
government before publication. See Weaver, 87 F.3d at 1431,
1435. Accordingly, the e-mail should not receive the height-
ened scrutiny of NTEU, which Jones properly reserves for
sweeping, general bans on all communications.
  Even if the preclearance directive were properly labeled
as a full-fledged prior restraint in the government employee
context, not all prior restraints on speech are analyzed
under the same test. Jones, 192 F.3d at 749. Prior restraint
analyses applicable to private sector plaintiffs do not apply
when the plaintiffs are government employees. Id; Weaver,
87 F.3d at 1440 (“There is certainly no logical reason to
think that the existence of some element of prior restraint
should remove a restriction on employee speech from the
usual Pickering approach.”). Here, however, the court
26                           Nos. 02-3627, 03-2281 & 03-2951

departs from the traditional balancing test applied to
government employees and instead applies the heightened
scrutiny of NTEU. This application more closely resembles
the test for prior restraints involving private sector plain-
tiffs. In choosing the NTEU heightened scrutiny test, the
court reasons: (1) “NTEU applies when a prior restraint is
placed on employee speech”; (2) the Preclearance Directive
“is a broad prohibition on speech on a matter of significant
importance1 and public concern”; and (3) the preclearance
directive applied to “44,000 members of the university
community.” Ante at 15, 17.
  These reasons do not suffice. The court even acknowl-
edges the oversimplified nature of its conclusion that NTEU
applies to all prior restraints and that Pickering/ Connick
applies to instances of speech that have already taken
place. Not only is the before-and-after distinction
an oversimplification, but, as Jones makes clear, it is a mis-
statement of law. See Jones, 192 F.3d at 749; see also
NTEU, 513 U.S. at 480 (O’Connor, J., concur-
ring/dissenting) (“[R]eliance on the ex ante/ex post distinc-
tion is not a substitute for the case-by-case application of
Pickering.”).
  And while the speech clearly involves a matter of public
concern, the Directive is not so clearly a broad prohibition.
The court’s claim that the e-mail applies to 44,000 students,
faculty, and staff of the University ignores NTEU’s critical
distinction concerning the scope of the speech prohibited by
the government. The 44,000 number may accurately reflect
the entire population of the University of Illinois, but this
case involves far fewer potential speakers: only those
plaintiffs employed by the University.


1
  It is undisputed that the plaintiffs’ speech involves a matter of
public concern. Whether the speech is of “significant importance”
or not should be of no concern to this court.
Nos. 02-3627, 03-2281 & 03-2951                             27

  Even so, the fact that there were nearly two million
potential speakers at issue in NTEU, 513 U.S. at 481-82
(O’Connor, J. concurring/dissenting), was not the determin-
ing factor in the Court’s decision to apply strict scrutiny.
Nor should the 44,000 number, or a much smaller number,
be dispositive here. In addition to focusing on the number
of potential plaintiffs, NTEU emphasized the “sweeping
statutory impediment to speech,” which the opinion charac-
terized as a “wholesale deterrent to a broad category of
expression by a massive number of potential speakers.” Id.
at 467 (emphasis added) (footnote omitted). The emphasis
should not be on numbers, but rather on the degree to
which speech is deterred and the avenues of speech left
open to the plaintiffs. NTEU, 513 U.S. at 467 n.11.
   NTEU involved a broad congressional prohibition on
speech that prevented nearly two million federal employees
(including lower-level employees) from accepting any
compensation for making speeches or writing articles, even
if the speech or article were totally unconnected to the em-
ployee’s official duties. Id. at 457. The ban went so far as to
prohibit a mail handler from receiving compensation for
giving a speech on the Quaker religion and an aerospace
engineer from being compensated for lecturing on black
history. Id. at 461. To be sure, NTEU involved plaintiffs
seeking compensation “for their expressive activities in
their capacity as citizens, not as government employees.” Id.
at 465 (emphasis added). The ban at issue applied to “off-
hour speech bearing no nexus to Government employ-
ment—speech that by definition does not relate to ‘internal
office affairs’ or the employee’s status as an employee.” Id.
at 480 (O’Connor, J., concurring/dissenting) (citing Connick,
461 U.S. at 149).
  In stark contrast, the preclearance directive in this
case did not purport to limit the plaintiffs’ right to give
speeches concerning the Chief controversy, to write let-
ters to the editor, participate in demonstrations, etc. The e-
28                         Nos. 02-3627, 03-2281 & 03-2951

mail left open a wide variety of unfettered speech oppor-
tunities for the plaintiffs, which the plaintiffs frequently
used. Instead of fully availing themselves of the many
alternative speech opportunities, the plaintiffs intended
to make their employee status an integral component of
their speech. Specifically, they intended to write letters to
potential student athletes on University letterhead to
discourage attendance at the University. The preclearance
directive applies solely to the plaintiffs’ acts in their gov-
ernment employee capacity, as opposed to the plaintiffs’
acts as citizens. The NCAA warning was directed at con-
tacts with potential recruits by school officials. NTEU does
not establish a right for government employee speakers to
elevate the influence of their speech by emphasizing their
official government position. In sum, the ban at issue in
NTEU is vastly different than Chancellor Aiken’s e-mail
because the prohibition in NTEU involved a significantly
greater number of potential speakers; it involved a whole-
sale deterrent to a broad category of expression; and it
applied both to the plaintiff’s capacity as government
employees and as public citizens.
  It is true that the prior restraint context imposes prob-
lems not present in the typical Pickering/Connick analysis
which involves a post hoc disciplinary decision. See Jones,
192 F.3d at 750. In addition, this case is different than the
typical application of Pickering/Connick because the
plaintiffs have not suffered any adverse employment action
often at issue in the application of Pickering/Connick. See,
e.g., Rankin v. McPherson, 483 U.S. 378, 388 (1987). Re-
gardless, there is no authority for applying NTEU to all
cases of prior restraints. See Jones, 192 F.3d at 749.
Applying the heightened standard of NTEU to restrictions
Nos. 02-3627, 03-2281 & 03-2951                                29

on employee speech is the exception, not the rule.2 See, e.g.,
Belcher v. City of McAlester, 324 F.3d 1203, 1206 n.3 (10th
Cir. 2003) (rejecting request to apply NTEU to prior
restraint because the restraint was narrow and left open
ample alternate channels of communication). Likewise, this
case is far removed from the facts of NTEU. The
Pickering/Connick balancing test is appropriate because
the e-mail leaves open many alternate venues for the
plaintiffs to communicate their message. In fact, we have
previously applied Pickering/Connick and rejected an in-
vitation to apply NTEU to prohibitions that are not a
“blanket restriction on speech” where “alternate venues” are
left open for the plaintiffs’ communication. See Messman v.
Helmke, 133 F.3d 1042, 1047 (7th Cir. 1998).
  Under Pickering/Connick, the proper analysis requires “a
balance between the interests of the [employee], as a
citizen, in commenting upon matters of public concern and
the interest of the State, as an employer, in promoting the
efficiency of the public services it performs through its
employees.” Connick, 461 U.S. at 140 (quoting Pickering,
391 U.S. at 568). The government’s interest when acting
as a mere sovereign is subordinate, but the government’s
interest as an employer is a “significant one.” Waters v.
Churchill, 511 U.S. 611, 675 (1994). In conducting this
balance, the Supreme Court cautions that we are to give
substantial weight to government employers’ reasonable
predictions of disruption, even when the speech involved


2
  There is no legal requirement that the speech actually be deliv-
ered before Pickering/Connick can be applied. That is, the gov-
ernment’s interest can be weighed in anticipation of the potential
effect, without having to wait and review the impact of the speech
after the fact. See NTEU, 513 U.S. 454, 481 (O’Connor, J. dissent-
ing, concurring) (emphasizing that the ex ante/ex post distinction
is not the determinative factor triggering NTEU heightened
scrutiny).
30                           Nos. 02-3627, 03-2281 & 03-2951

was on a matter of public concern. Id. at 673-74. In fact, the
Supreme Court has deferred to reasonable predictions of
disruption by upholding a congressional ban on Executive
Branch employees from taking an active part in political
campaigns or political management. Public Workers v.
Mitchell, 330 U.S. 75, 99 (1947).
  The plaintiffs’ depositions reveal that the purpose behind
the letter-writing campaign was to encourage potential
student athletes not to attend the University. We have
consistently permitted government employers to take pro-
active steps when facing obvious acts of disruption by em-
ployees. See Sullivan v. Ramirez, 360 F.3d 692, 701 (7th
Cir. 2004) (balancing “the potential disruptiveness” of
the speech); Greer v. Amesqua, 212 F.3d 358, 372 (7th
Cir. 2000); Propst v. Bitzer, 39 F.3d 148, 152 (7th Cir. 1994).
The Illinois legislature has declared national athletic
competition “essential” to the state’s schools and their
finances. 110 ILCS 25/2(c). Damage to recruiting or other
aspects of the athletics program is damage to the
University’s bottom line.3 See Messman, 133 F.3d at 1047;


3
   The court does not discuss the University’s interest in effec-
tive recruiting and maintaining a sound bottom line. Our pre-
cedent emphasizes that “[e]fficiency and fiscal responsibility are
powerful governmental interests.” Messman, 133 F.3d at 1047.
The plaintiffs acknowledge the University’s actual interest in
recruiting speech and that Chancellor Aiken “might constitution-
ally require pre-approval of such contacts.” Nor does the court
discuss the University’s interest in regulating the timing of
potentially intimidating, confusing, or burdensome communication
to impressionable teenage athletes who are entitled to privacy. Cf.
Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530, 1541 (7th Cir.
1996) (permitting principal to prescreen for speech that “materi-
ally interfere[d] with school procedures and intrude[d] into school
affairs or the lives of others.”). Far from being “paternalistic” as
the plaintiffs claim, such concerns are the basis for the NCAA
                                                     (continued...)
Nos. 02-3627, 03-2281 & 03-2951                            31

cf. Lewis v. Cowen, 165 F.3d 154, 164 (2d Cir. 1999) (up-
holding defendants’ predictions of disruption that state
employee’s “refusal to promote the proposed change would
result in negative publicity and decreased morale, in turn
impairing . . . profitability.”).
  The government interest here goes beyond the obvious
interest in effective recruiting. Compliance with NCAA
regulations concerning the quantity and timing of contacts
between representatives of the University and prospective
student athletes is critical to the University. For even
“secondary,” “isolated,” or “inadvertent” violations with
“minimal” effects, the NCAA wields an arsenal of stiff
sanctions, including terminating the school’s recruitment of
a particular athlete, imposing ineligibility on an athlete,
requiring a school to forfeit a game in which an imper-
missibly contacted athlete played, and fines. See NCAA
Bylaws 19.02.2.1; 19.6.1. The University had been sanc-
tioned three times for major rules violations shortly before
the tenure of Chancellor Aiken and it is undisputed that
Chancellor Aiken was concerned that the plaintiffs’ letter-
writing campaign could violate NCAA recruiting rules.
  NCAA rules strictly limit recruiting activities by “institu-
tional staff” which includes “faculty members.” NCAA
Bylaw 13.1.2.3(a). The NCAA rules apply to “general cor-
respondence related to athletics.” NCAA Bylaw 13.4.1. In
order to be certain that the prospective faculty contacts
were subject to NCAA rules, Chancellor Aiken questioned
NCAA and Big Ten Conference officials before sending the
e-mail. In response, NCAA rules expert Denise O’Meally
explained in an e-mail that NCAA regulations apply when
“an institution either identifies and contacts a group of



(...continued)
rules limiting the number and timing of recruiting contacts to
prospective student athletes.
32                         Nos. 02-3627, 03-2281 & 03-2951

prospective students based on their athletics ability or con-
tacts prospective students to discuss their athletics partici-
pation.” Before sending the e-mail, Chancellor Aiken also
conferred with various University officials and with in-
house and outside counsel before concluding that the letter-
writing campaign potentially fell within NCAA restrictions.
   The plaintiffs’ attorneys later obtained a letter from the
NCAA stating that the letter-writing campaign would not
likely result in sanctions provided that the University
“either was unaware of the correspondence or acted rea-
sonably to preclude it from being sent.” Regardless, the
constitutional inquiry is not whether the school would have
faced sanctions due to the letters. The plaintiffs’ attempt to
question the likelihood of sanctions is an especially unhelp-
ful inquiry in reviewing plaintiffs’ motion for summary
judgment, because all disputed issues of fact must be
resolved in favor of Chancellor Aiken. Instead, the test is
whether the e-mail was reasonably necessary to prevent
anticipated harms. See NTEU, 513 U.S. at 475; Myers
v. Hasara, 226 F.3d 821, 826 (7th Cir. 2000) (balancing
the government interest based on the facts reasonably
known to the government employer). As stated above, the e-
mail served to caution employees that, due to NCAA reg-
ulations, a dialogue was necessary before the contacts with
student athletes could be made. Even under the plaintiffs’
view of the regulations, the University could face sanctions
if it did not act reasonably to preclude from being sent a
communication in violation of the rules. The e-mail was a
reasonable response and is entitled to the deference nor-
mally given to government predictions of harm used to
justify restrictions on employee speech. See Waters, 511
U.S. at 673. The careful investigation and advice sought by
Chancellor Aiken establishes that the e-mail was not
written out of mere conjecture or speculative fear. Cf.
NTEU at 475 (citing Turner Broadcasting System v. FCC,
512 U.S. 622, 664 (1994)).
Nos. 02-3627, 03-2281 & 03-2951                             33

  Turning to the plaintiffs’ interest, the balancing test,
again, considers the plaintiffs’ interest as a citizen in com-
menting upon matters of public concern. The plaintiffs’
interests, as citizens, are not impacted by the e-mail, only
their interests in commenting as government employees.
Connick, 461 U.S. at 140. As a citizen, the plaintiffs re-
mained free to hold news conferences, write letters to the
editor, deliver public speeches, engage in rallies or protests,
or speak publicly in any other way concerning the Chief
controversy. In fact, the record is replete with examples of
plaintiffs appearing on radio and TV regarding the Chief,
writing newspaper articles, addressing the board of trust-
ees, and participating in anti-Chief marches and demon-
strations. An enormous category of speech remains open to
the plaintiffs, not to mention the availability of anonymous
speech. See McIntyre v. Ohio Elections Commission, 514
U.S. 334, 343 (1995) (extolling the United States’ respected
tradition of anonymity in the advocacy of political causes).
  This is simply not a case where the University is
attempting to suppress the plaintiffs’ message, which hap-
pens to be against the Chief. At issue here is the plaintiffs’
demand that they be permitted to use their status as
University professors or employees to magnify the impact
of their speech by directly contacting and discouraging
potential athletes. The court complied by granting to the
plaintiffs an extended right to communicate in their capac-
ity as government employees in a time, place, and manner
of their own choosing. The court does not consider the many
alternative modes of communication left open to the
plaintiffs and whether such alternatives were adequate
when balanced against the University’s concern for vio-
lating NCAA regulations. Myers v. Hasara, 226 F.3d
821, 828 (7th Cir. 2000) (citing Coady v. Steil, 187 F.3d 727,
731 (7th Cir. 1999)). The plaintiffs were already using
numerous venues to communicate their message in ways
less disruptive to the University, but still communicating
34                         Nos. 02-3627, 03-2281 & 03-2951

with anyone willing to read or listen. The First Amendment
does not require the University to eliminate the time
requirements of the NCAA regulations and allow University
employees the imprimatur of official positions to communi-
cate to prospective student athletes.
  Even if the court were correct that NTEU applied to this
case and that balance tipped in favor of the plaintiffs,
qualified immunity applies to Chancellor Aiken. Assuming
there were a constitutional violation, in order to remove the
cloak of qualified immunity, the plaintiffs have the burden
of proof to show that the law prohibiting Chancellor Aiken’s
conduct was “clearly established.” Gregorich v. Lund, 54
F.3d 410, 413 (7th Cir. 1995). The test for whether the law
was clearly established must be conducted based on the
specific facts of the case, and not at a high level of general-
ity. See Greenberg v. Kmetko, 922 F.2d 382, 383-84 (7th Cir.
1991).
  Here, both Pickering/Connick and NTEU involve bal-
ancing tests and, unless there is “very closely analogous”
case law, the balance struck by the official will not remove
qualified immunity. See Gregorich, 54 F.3d at 414. Plaintiffs
have not identified any such closely analogous case law. The
obvious proposition that prior restraints are disfavored is
far too general to satisfy the plaintiffs’ burden. As set forth
above, Chancellor Aiken did not act without caution. He
consulted attorneys and relied upon advice by the NCAA
before sending the e-mail. The court merely relies upon
Jones to support its conclusion that the law was clearly
established. As set forth above, Jones involved an actual
prohibition on speech, unlike the prepublication review at
issue here. Jones banned all speech concerning disciplinary
matters and did not leave open any alternative channels of
communication. In contrast, the e-mail at issue here did not
purport to make discussions regarding the Chief confiden-
tial. The plaintiffs remained free to write letters to the
editor, engage in protests, lead discussion, give public
Nos. 02-3627, 03-2281 & 03-2951                          35

speeches, etc. The plaintiffs have not approached meeting
their burden of showing “very closely analogous case law”
and Chancellor Aiken is thus entitled to qualified immu-
nity.


                            III.
   The Pickering/Connick balancing test applies to
Chancellor Aiken’s e-mail because it merely places time
restrictions on a narrow band of communication by
plaintiffs in their capacity as government employees. The e-
mail is not a “wholesale deterrent to a broad category
of expression by a massive number of potential speakers”
and thus the test for applying the heightened scrutiny of
NTEU is not met. Under the Pickering/Connick test, the
government has an important interest in the efficiency of
recruiting; in complying with NCAA time limitations re-
garding contacts with prospective student athletes; and in
protecting prospective student athletes from intimidating,
confusing, or burdensome communication. Moreover, the e-
mail leaves open a wide variety of alternative communica-
tion, of which the plaintiffs have taken advantage. Finally,
Chancellor Aiken is entitled to qualified immunity because
the plaintiffs have failed to meet their burden of showing
very closely analogous case law controlling the outcome of
this case. I therefore DISSENT from the court’s decision and
would vacate the district court’s judgment as to the plain-
tiffs’ request for declaratory relief and damages and grant
Chancellor Aiken’s motion for summary judgment.
36                   Nos. 02-3627, 03-2281 & 03-2951

A true Copy:
      Teste:

                   ________________________________
                   Clerk of the United States Court of
                     Appeals for the Seventh Circuit




               USCA-02-C-0072—6-1-04
