TERENCE T. EVANS, Circuit Judge.
This case, raising First Amendment issues involving the University of Illinois, concerns “Chief Uliniwek,” 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 [671]*671look at college nicknames and their embodiment as mascots.
In the Seventh Circuit, some large schools — -Wisconsin (Badgers), Purdue (Boilermakers), Indiana (Hoosiers), Notre Dame (The Fighting Irish), DePaul (the Blue Demons), 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 department. 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 Cougars (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 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 Ta-rheels (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 Brandéis 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 imaginatively named “Banana Slugs”?3
[672]*672From 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 years, a banana slug (ariolomax dolicho-phalus 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 nonaggressiveness, 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 official 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 “Fighting 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 cheerleading 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 pa-pier-máché head (about 4 feet high!) — to whip up the crowd at its basketball games in support of its nickname — 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 “Hu-rons” to “Eagles.” Some schools, most notably Florida State (“Seminóles”) and the University of North Dakota5 (the Fighting Sioux), have resisted change. And so has the University of Illinois.
Chief Illiniwek traces his existence to 1926 when, according 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-Pennsylvania 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 half[673]*673time with Pennsylvania’s mascot, “William Penn.”
From the home page of the UIUC web site, we are informed 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 intrigued by the concept the Mini 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 indomitable human spirit.
Chief Illiniwek’s “costume” underwent several revisions before settling on its present incarnation in 1982. Similarly, the chiefs 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
Free access — add to your briefcase to read the full text and ask questions with AI
TERENCE T. EVANS, Circuit Judge.
This case, raising First Amendment issues involving the University of Illinois, concerns “Chief Uliniwek,” 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 [671]*671look at college nicknames and their embodiment as mascots.
In the Seventh Circuit, some large schools — -Wisconsin (Badgers), Purdue (Boilermakers), Indiana (Hoosiers), Notre Dame (The Fighting Irish), DePaul (the Blue Demons), 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 department. 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 Cougars (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 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 Ta-rheels (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 Brandéis 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 imaginatively named “Banana Slugs”?3
[672]*672From 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 years, a banana slug (ariolomax dolicho-phalus 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 nonaggressiveness, 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 official 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 “Fighting 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 cheerleading 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 pa-pier-máché head (about 4 feet high!) — to whip up the crowd at its basketball games in support of its nickname — 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 “Hu-rons” to “Eagles.” Some schools, most notably Florida State (“Seminóles”) and the University of North Dakota5 (the Fighting Sioux), have resisted change. And so has the University of Illinois.
Chief Illiniwek traces his existence to 1926 when, according 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-Pennsylvania 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 half[673]*673time with Pennsylvania’s mascot, “William Penn.”
From the home page of the UIUC web site, we are informed 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 intrigued by the concept the Mini 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 indomitable human spirit.
Chief Illiniwek’s “costume” underwent several revisions before settling on its present incarnation in 1982. Similarly, the chiefs 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 lecturer at the University said. She continued by saying that Chief Miniwek is an inaccurate composite.
“The Indians within the Illinois area are of a different tribal culture. The idea of symbols from several different 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 Illini-wek 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 outstanding 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 [674]*674director, 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 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 newspaper 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 activities.
It was not until the plaintiffs expressed interest in contacting 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 Illin-iwek 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 lile, the assistant director of athletics, asked the membership services coordinator of the National Collegiate Athletics Association (NCAA) whether NCAA rales applied to contacts by faculty members with prospective student-athletes.
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 Association (NCAA) and the Big Ten Athletic Conference, there are a number of rules with which all persons associated with the University must comply. For example, the NCAA regulates the timing, nature and frequency of contacts between any University employee and prospective athletes. It is the responsibility of the coaches and administration in the Division of Intercollegiate Athletics to recruit the best student athletes to participate in varsity sports at the University of Illinois. No contacts are permitted with prospective student athletes, including high school and junior college students, by University students, employees or others associated with the University without express authorization [675]*675of the Director of Athletics or his desig-nee.
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 lile, 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 questions about the reach of what was accurately termed a “preclearance directive.” Chancellor Aiken directed Associate Chancellor Larry Mann to oversee Mr. Ule 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 prospective 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, lile 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 student-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 prospective student-athlete’s possible participation in intercollegiate athletics”
The NCAA replied the same day: ■
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 o,f prospects. In this regard, if an institution either identifies and contacts 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 participation in intercollegiate athletics such contacts would be considered recruiting contacts and would be subject to NCAA regulations. Further, if an institutional 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 [676]*676would 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 informed 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 email were essentially reiterated by Chancellor Aiken in an address to the faculty Senate:
The University values and defends the principles of free speech and academic freedom for members of the University community.
The University does not seek to interfere with the expression of views regarding matters of public concern. However, we also are a member of the NCAA, and are committed to controlling our intercollegiate athletics program in compliance with the rules and regulations of the NCAA.
This means that we expect members of the University community to respect NCAA rules, and certainly not intentionally violate them.
As explained in my e-mail of March 2, there are numerous 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 desig-nee, 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, leafleting, and public speeches. Various faculty members and others have availed themselves of these opportunities over the years.
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 Amendment 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 addressing 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 [677]*677March 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 chancellor 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 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 desig-nee.” 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 email 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 lile, 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 proceeded. 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 prevailing 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 individual 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.
As a preliminary matter, we will mention the claim that this action must be dismissed as moot because the offending email 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, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); see also Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 [678]*678(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, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), or the one announced in United States v. National Treasury Employees Union, 513 U.S. 454, 115 S.Ct. 1003, 130 L.Ed.2d 964 (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 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. 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, in the situation before it, the dismissal was improper. In Connick v. Myers, 461 U.S. 138, 140, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), the Court further fleshed out its view of what constitutes “matters of public concern.”
Then, in NTEU, the Court considered the constitutionality 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 responsibilities. The ban in NTEU was in the nature of a prior restraint 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 pri- or 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, 115 S.Ct. 1003, quoting Pickering, 391 U.S. at 571, 88 S.Ct. 1731.
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 disciplined an individual for a single statement. Even though there are differences in scope between thé 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 members of the university community, including students. The broad scope of the March 2 directive requires, we think, an analysis under the NTEU test.
[679]*679We have applied the NTEU test in a ease 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 rales 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 rales. It points out that the NCAA has broad authority to enforce its rules and to sanction institutions and athletes for violations. 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 communications designed to dissuade athletes from enrolling in the 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-standing 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, 115 S.Ct. 1003. They say they do not intend to harm the university 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 recruiting 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 [680]*680purpose 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, 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 overstep 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 association 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 constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (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 employees retain certain rights to free speech on matters of public concern has been apparent since the Pickering decision in 1968 and NTEU in 1995. We added our voice on a remarkably similar situation in Jones in 1999. Chancellor Aiken sent his critical e-mail in March 2001. He cannot reasonably 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 [681]*681failure 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, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). Our review of a finding of excusable neglect is only for an abuse of discretion. Robb v. Norfolk & Western 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 attorney 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 district 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.