The News-Gazette.com: Judge's Chief ruling leaves some issues still open

Judge's Chief ruling leaves some issues still open

By Steve Bauer

Friday, February 16, 2007 6:56 PM CDT

URBANA – A judge's ruling denying a temporary restraining order to stop the University of Illinois from stopping Chief Illiniwek's performances leaves open complaints by two students that their rights are harmed by such action by campus trustees.

Judge Michael Jones ruled late Friday morning against the two students, Dan Maloney and Logan Ponce, only as far as denying them a temporary restraining order against the UI and its board of trustees.

"The case is by no means over," said Brent Holmes, the students' attorney. "We're exploring what options (Maloney and Ponce) have available to them."

He said the students, who portray the Chief, were "obviously disappointed" by the ruling, but "they're encouraged by the overwhelming support that they have from backers of Chief Illiniwek."

In court Friday, Jones agreed with Urbana attorney James Kearns, who argued that a decision to drop the use of Chief Illiniwek is a policy decision. Jones said it was not his business to second-guess university decisions.

"Right or wrong, this is their call," Jones said of the trustees' announcement earlier Friday that Chief Illiniwek would no longer perform at any athletic events.

"The University of Illinois has chosen a course of action," Jones said. "They could have tackled the NCAA head on and sued them, taken risks. Instead, they chose, apparently, to try and succeed through the appeal process. Apparently, they have chosen to comply with the NCAA."

Jones said there was no evidence of any need for a temporary restraining order or any immediate harm to the students, who portray Chief Illiniwek.

The judge left open other issues raised in the lawsuit filed by Holmes, but he and attorneys for the NCAA and the university said they would like to talk further before scheduling any other hearings.

The lawsuit, whose filing was delayed due to the courthouse being closed Monday for a holiday and Tuesday-Wednesday due to blizzard conditions, claims that the NCAA actions regarding Chief Illiniwek are illegal.

The suit also claims the NCAA policy interferes with the students' contracts with the university, their academic freedom and "valuable career opportunities."

Holmes argued Friday that applying NCAA policy against any use of hostile and abusive American Indian mascots or symbols to the UI and Chief Illiniwek is illegal, because the Illinois Legislature passed a law declaring that Chief Illiniwek is an honored symbol. He also argued that the NCAA must use due process before imposing penalties or sanctions against a member institution, such as the UI or a student.

Holmes also argued, as the lawsuit alleges, that the NCAA's monopoly governance of athletic competition is akin to being a state or government party, thus its actions against the performance of Chief Illiniwek is a violation of free speech rights. He said the NCAA actions constitute prior restraint of free speech.

Holmes said the NCAA did not follow due process in its policy against use of American Indian images. He also said the organization's enforcement was arbitrary and capricious, citing the Florida State University mascot, which is allowed to ride a horse onto a football field wearing native garb and throw a flaming spear into the ground.

Jones was critical of the NCAA, saying that its enforcement, so far, of its own policy appeared to be hypocritical.

"It's an easy sell that enforcement of the policy is arbitrary and capricious," the judge said.

"They don't wish to associate with members who use Native American imagery, unless, of course, they do," Jones said.

Linda Salfrank, a Kansas City, Mo., attorney representing the NCAA argued that it is a private organization and has the right of association.

"It does not wish to be associated with a members who use hostile Native American images," she said.

The NCAA policy does not dictate that the university stop using the Chief, but the organization has a right to decide whom to invite to events and whom to host events, she said

Salfrank said the Florida State University exemption by the NCAA recognized the sovereign right of the Seminole tribe to contract for use of its namesake.

The NCAA and the American Indian community "is offended and should be offended" by the FSU display, Salfrank said.