by the University of Illinois
administration are appealing a 2001 federal
district court’s decision that prohibits it
from interfering with the free speech rights of
faculty. The decision resulted from the
administration’s attempt to prohibit anti-
Chief faculty from contacting high school
athletes and informing them of their belief
that the Chief is a racist symbol. The district
court ruled against the administration on
grounds that the prohibition was a violation
of free speech. One of the grounds the
administration had given for its action was
that it was concerned that such contact would
violate an NCAA’s rule against officials of the
university contacting recruits. However, this
rule was obviously established to avoid undo
pressure on athletes to accept an invitation to
attend the university. Clearly, attempts by faculty
to dissuade these students is not a breach
of the spirit of the law. Once the district court
rejected this reasoning, the administration’s
conduct became a clear-cut free speech issue.
The present appeal of the district court’s
decision is viewed with considerable concern
by many faculty members, including some
who have not taken a stand on the Chief. For
example, the president of the local chapter of
the American Association of University Professors,
a group that has steadfastly refused to
enter the fray about the Chief, has sent a
strong letter to President Stukel documenting
the organization’s alarm about the effects of
the appeal on academic freedom.
The administration’s appeal is surprising
because the reputation and the quality of the
university is always at stake when it attempts
to silence freedom of speech. It is conceivable
that an overly cautious administration might
have overlooked First Amendment and academic
freedom concerns to adhere to a creative
interpretation of NCAA rules. It is much
more difficult to understand how the administration
can ignore the damage that this
appeal will create now that the NCAA excuse
is no longer available (assuming that the
administration understands that the First
Amendment trumps even the NCAA).
The wisest course for the administration
would have been to accept the verdict and
realize that world-class universities do not
attempt to harness the speech of their faculties
to prowess on the athletic field or to their
financial bottom line. Incredible as it might
seem, concern over financial matters is specifically
offered in the brief as a justification for
the administration’s attempt to silence its faculty
members. Great universities do not discourage
dissent, even when it is about the
merit of athletics, let alone about the merit of
athletic symbols. Instead, this administration
has taken the approach that brought discredit
on our university in the 1960s when an earlier
U of I administration fired Professor Leo
Koch for expressing his views on sexuality in
a letter to the Daily Illini. At that time the
university was censored by the national
AAUP and placed on its list of colleges and
universities that had committed grave offenses
against academic freedom. That censor was
long remembered as a stain on the institution.
The present attempt to silence faculty, and
the arguments that the administration has
permitted its lawyers to use in court, have
serious implications for the future of this
university, the quality of faculty that it will be
able to attract, and the way it is perceived by
its peer institutions. Indeed, the brief before
the appeals court virtually ignores the long
tradition of academic freedom and claims
that since the university is a government
agency, it has “a freer hand in regulating the
speech of its employees than [the government]
has in regulating the speech of the
public at large.” This claim may be marginally
plausible for legal hair-splitters, but it is
inconsistent with every value of the academic
community. If followed it would allow the
administration to not only regulate political
speech (an obvious target), but also to suppress
publications of research findings that
might upset potential donors.
Perhaps the most alarming feature of the
brief is the extent to which it equates the university
with any other government agency
and then asserts the same level of control over
its personnel as any other agency. The
administration seems ready to pull out all the
stops to win a court case with a brief that is
alarmingly insensitive to institutional culture,
purpose, and history.
The brief also makes the point that the
recruits need to be protected from the conflict
over the Chief. This shallow and paternalistic
argument devalues the intelligence of
recruits. It stretches credulity to assume that a
student who meets the academic standards of
the University of Illinois would be unable to
understand that a letter from a faculty member
intended to discourage them from accepting
an offer from the university’s coach does
not carry with it the seal of approval of the
university. While there are certainly circumstances
where faculty might need to make a
disclaimer about not speaking in any official
capacity, it degrades both the athlete and the
institution to insinuate that recruited athletes
who meet the academic standards of this university
would be unable to distinguish
between a coach seeking to recruit them and
a faculty member seeking to inform them.
The most sensible resolution to this issue
before it goes any further would be for the
administration to encourage a disclaimer on
the part of anyone writing to recruits about
the Chief (for as well as against) stipulating
that they do not speak as the official voice of
the university. Once this is done, the administration
should quietly and discretely step
away from a court battle that, regardless of
who wins, the university can only lose.
Walter Feinberg is Professor
of Educational
Policy Studies and Criticism
and Interpretive
Theory at the University
of Illinois, Urbana.