In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 19-2807

SPEECH FIRST, INC.,

Plaintiff-Appellant,

v.

THOMAS L. KILLEEN, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Central District of Illinois.

No. 3:19-cv-03142-CSB-EIL — Colin S. Bruce, Judge.

____________________

ARGUED FEBRUARY 27, 2020 — DECIDED JULY 28, 2020

____________________

Before BRENNAN, SCUDDER, and ST. EVE, Circuit Judges.

ST. EVE, Circuit Judge. Colleges and universities unquestionably benefit from the free flow of ideas, debate, and deliberation on campus. These institutions should strive to foster 

an environment where critical thought, and sometimes strong 

disagreement, can flourish. Indeed, “[f]reedom of expression 

and academic freedom are at the very core of the mission of 

colleges and universities, and limiting the expression of ideas 

would undermine the very learning environment that is 
2 No. 19-2807

central to higher education.” Erwin Chemerinsky & Howard 

Gillman, Free Speech on Campus x (Yale Univ. Press 2017). 

Speech First—a national advocacy organization dedicated 

to promoting the exercise of free speech on college campuses—alleges that three distinct policies at the University of 

Illinois at Urbana-Champaign (“the University”) threaten

these ideals and impermissibly chill the speech of student 

members of its organization. It seeks a preliminary injunction 

to put a halt to these policies. 

When a party seeks a preliminary injunction before the 

district court, the burden rests on that party to demonstrate

that it has standing to pursue its claims. Speech First failed to 

meet that burden for two of the policies it challenges; namely, 

it failed to demonstrate that its members face a credible fear

that they will face discipline on the basis of their speech as a 

result of those two policies. And for its challenge to the third 

policy, that claim is moot. The district court therefore correctly denied the motion for a preliminary injunction, and we 

affirm. 

I. Background

Speech First sued 29 administrators at the University on 

behalf of four anonymous students. These students claim that 

they wish to express what they describe as “political, social, 

and policy views that are unpopular on campus.” Speech 

First’s complaint lists examples of such viewpoints in general 

terms: opposition to abortion, support for President Trump, 

belief in traditional marriage, support for strong immigration 

policies, support for the “deradicalization of Islam,” support 

for First Amendment protection of “hate speech,” opposition 

to gun control, and support for LGBT rights.
No. 19-2807 3

Speech First alleges that three University policies—the responsive action of the Bias Assessment and Response Team 

and the Bias Incident Protocol to reports of “bias-motivated 

incidents” on campus, the imposition of No Contact Directives, and the prior approval rule—chill their student members’ speech, force these students to engage in self-censorship, 

and deter them from speaking openly about issues of public 

concern.

A. Bias Assessment Response Team and Bias Incident 

Protocol

Speech First challenges the actions of the University’s Bias 

Assessment and Response Team (“BART”). BART “collects 

and responds to reports of bias-motivated incidents that occur 

within the University of Illinois at Urbana-Champaign community.” In turn, BART defines “bias-motivated incidents” as 

“actions or expressions that are motivated, at least in part, by 

prejudice against or hostility toward a person (or group) because of the person’s (or group’s) actual or perceived age, disability/ability status, ethnicity, gender, gender identity/expression, national origin, race, religion/spirituality, sexual orientation, socioeconomic class, etc.” In addition, BART 

“[p]rovides opportunities for educational conversation and 

dialogue” and “[s]upports those impacted by bias.” 

BART is administratively housed within the Office for Student Conflict Resolution (“OSCR”). In addition to BART, 

OSCR houses two other functions: (a) voluntary alternative 

conflict resolution services and (b) enforcement of the Student 

Code. Members of BART come from various departments 

across the University: OSCR; the University Housing Office;

the Office of Student Affairs; the Office of Diversity, Equity, 

and Inclusion; the Student Assistance Center; the student 
4 No. 19-2807

union; and the University Police Department, which supplies 

a law enforcement liaison to BART.

Any member of the University community can report to 

BART by sending an email to the BART-specific email address 

or through a webform on the BART website. The webform 

does not require the reporter to identify himself, and the majority of BART reporters remain anonymous. One of the 

BART Co-Chairs enters the report into an internal database. 

A Co-Chair will promptly address any incidents that require 

a simple response. This could include, for example, a report 

of a swastika drawn on a bathroom door, where a Co-Chair 

will call the facilities department to erase it. For those incidents that do not allow for as straightforward of a resolution, 

BART members discuss reports at a bi-weekly meeting and 

determine whether to reach out to the involved students, if 

they are identified, to invite them to participate in a voluntary 

conversation. BART also devises a response plan, which could 

include “[e]ducational conversations,” “[m]ediation, facilitated dialogue,” “[e]ducational referrals,” “[r]esolution 

agreements,” or “[r]eferrals to other offices and/or programs.”

If the reporting party is identified and wishes to meet, a 

BART staff member will discuss the report with the student 

and offer support. If the reporting party identifies the offender, a BART staff member will contact that person via 

email to schedule a voluntary meeting. Notably, the majority 

of students who BART contacts either do not respond or decline to meet. Students who decline suffer no consequences. If 

a student agrees to meet, BART staff explains to the student 

that her conduct drew attention and gives the student an opportunity to reflect upon her behavior and its impact on other 
No. 19-2807 5

students. BART cannot require students to change their behavior and does not have authority to issue sanctions if they 

decline to do so.

Justin Brown, Director of OSCR and a former Chair of 

BART, states in a declaration that BART keeps private all interactions with students, and interactions do not appear in 

students’ academic or disciplinary records. BART does, however, publish an annual report of incidents with all personally 

identifiable information removed from its data and descriptions. Examples of these descriptions, in their complete form,

include:

• “The pillars outside of Foellinger Auditorium were 

chalked with the phrases, ‘Women are Worthless’ and 

‘Go White Privilege.’ Facilities removed the chalking 

within an hour of it being reported.”

• “A student reported that another student said to him, 

‘I voted for Trump because I want to deport you guys. 

Enjoy the last few months in America.’ A member of 

the team met with both of the students involved.” 

• “There were multiple reports (41) that an RSO posted 

on Facebook that they were going to hold an ‘Affirmative Action Bake Sale’ where they would charge different prices based on race and ethnicity. A member of the 

team met with the leadership of the RSO. All of the 

people that reported were contacted, and many of 

them met with a member of the team.” 

January Boten, Assistant Dean of Students at the University and a Co-Chair of BART, asserts in an affidavit that “[a]ny 

contact a student has with BART—whether the student reporting an incident or the student who is alleged to have engaged in the reported behavior—is entirely voluntary.” 
6 No. 19-2807

Expressing the views Speech First describes in its complaint 

does not violate the University’s Student Code. Thus, Boten 

explains, students “could not face discipline at the University 

solely as a result of expressing those opinions,” although

“some behavior motivated by bias may also violate the Student Code.” (emphasis in original). Such behavior could include physical violence, stalking, true threats, and sexual harassment. BART has no independent disciplinary authority, 

and therefore the student disciplinary process, rather than 

BART, addresses this sort of behavior. Boten represents that 

reports made to BART “are not ‘referred’ from BART to the 

University Police, nor do the police ever investigate an incident reported to BART unless that incident independently 

was reported to the Police for law enforcement reasons.” Relatedly, there is no evidence that the liaison to BART from the 

University Police has any law enforcement function in her capacity as a BART member. 

Speech First National President Nicole Neily submitted a 

declaration that states she is “aware of how BART operates.”

Neily has no present connection to the University: she is not 

a current student, nor is she a member of the faculty or staff. 

Because she lacks first-hand information about the University’s current policies and procedures, she relies on what she 

has learned through her discussions “with Speech First members and other students who attend and have attended the 

University”—Students A, B, C, and D. Neily explains her general understanding of BART’s procedures, based on these 

conversations: 

When a BART official contacts the offender, the official 

tells the student that the BART has received a bias report about the student and that the BART needs to 
No. 19-2807 7

speak with the student to discuss the allegations. The 

BART official will not identify the person who has accused the student of “bias” or inform the student of 

any rights he or she may have.

In addition, Neily asserts that, if BART determines the identity of the student who committed the bias-motivated incident, “it will record the details of the incident on the student’s 

permanent record” and “will make this information available 

to others outside of the BART.” Neily reports that one student’s advisor told him “that he could see from the student’s 

files that the student had met with someone from the BART.”

Neily provides no other detail about BART and its operations. 

In addition to BART, the University maintains a similar 

but separate system—called the University Housing Bias Incident Protocol (“BIP”)—to address bias-motivated incidents 

committed within University housing. Like the BART process, residents can report an incident to a centralized BIP

email address, through a web form, or to a University Housing staff member who lives in their building. Approximately

half of the reports to BIP are anonymous, and more than half 

do not provide the name of the alleged offender. Also, like 

BART, a committee of University staff meets to determine 

what course of action is appropriate in response to a report,

and whether to invite identified students to participate in a 

voluntary conversation with a BIP staff member. If, after a 

meeting, a student wishes to persist with his or her conduct, 

the staff member cannot sanction the student.

Alma Sealine, the Executive Director of University Housing, asserts in her affidavit that BIP “is entirely voluntary, 

both for the student making a bias incident report and for the 

student (if identified) whose comments or actions have 
8 No. 19-2807

prompted the report.” “[T]here are no sanctions, punishments, or discipline of any kind associated with a reported 

incident.” When a student breaches his or her housing contract or violates University policy through, for example, acts 

of theft, vandalism, possession of weapons, or hosting unapproved overnight guests, students must endure a separate 

disciplinary process. Expression of the views Speech First describes in its complaint would not contravene housing contracts nor violate any University policies.

Speech First did not submit any evidence to the district 

court contradicting Sealine’s affidavit. In fact, Neily’s declaration omits any mention of BIP.

B. No Contact Directives

Pursuant to the University’s Student Disciplinary Procedures, University disciplinary officers may direct an individual subject to student discipline to have no contact with one 

or more other persons through what the University calls “No 

Contact Directives” (“NCDs”). Students subject to NCDs may 

not engage “in oral, written, or third party communication”

with other identified parties and may not partake in certain 

“deliberate nonverbal acts intended to provoke or intimidate

a protected party.” Although NCDs do not require students 

to maintain a specific physical distance from one another, the 

University advises the parties to leave the vicinity if the other 

party appears. NCDs do not, on their own, constitute a disciplinary finding against students and are not part of the students’ official disciplinary records. Although an NCD prohibits a student from contacting another student, it does not prohibit the student from talking or writing about the other, either privately or publicly. The Student Disciplinary 
No. 19-2807 9

Procedures recommend dismissal from the University for students who violate NCDs.

Section 4.06(a) of the Student Disciplinary Procedures outlines the authority of the University to impose NCDs, stating 

that “University disciplinary officers are among those responsible for the enforcement of student behavioral standards and, 

when possible, the prevention of violations of the Student 

Code.” Section 4.06(d) outlines the procedure for imposing 

NCDs: “If, based upon a report received or a direct request 

from a member of the university community, a disciplinary 

officer believes that a No Contact Directive is warranted, the 

disciplinary officer will notify all recipients in writing, typically by email.” 

Brown describes the common reasons for the imposition 

of NCDs: 

[O]f the 103 No Contact Directives issued in the 2018-

2019 academic year, approximately 62% were imposed 

during the pendency of an investigation into allegations of a violation of the Student Code. In addition, 

approximately 28% were imposed as a result of informal Title IX complaints that alleged sexual misconduct 

but requested no investigation be conducted. During 

the same year, only 11 cases—approximately 11% of 

cases—involved no pending investigation or an informal Title IX complaint. These directives were issued 

when a severe, prolonged, and/or escalating conflict 

between students suggested that a violation of the Student Code, and in some cases physical violence, was 

likely in the near future.
10 No. 19-2807

Similarly, Rony Die, Associate Director of OSCR, represents

that the University only imposes NCDs in response to violations of the Student Code or to prevent potential violations. 

Both Brown and Die assert that no students have ever been 

subject to NCDs for expression alone.

To rebut the University’s contentions, Speech First points 

to an NCD imposed between students Tariq Kahn and Andrew Minik after Minik published an article about Khan attacking two students at an “anti-Trump” rally. Minik wrote 

an email to Die, who issued the NCD, to confirm his understanding of the limitations the NCD imposed. He acknowledged that “the no contact order [did] not prevent [him] from 

writing journalistic stories related to Khan,” but that Die 

merely “suggest[ed] that [he] not write about him” for the situation to improve. In this email, Minik also recognized that 

the NCD “is not a direct disciplinary charge.” The district 

court, which is also presiding over a separate lawsuit involving the Minik–Khan interactions, summarized: “Die described the history of escalation between Minik and Khan, including Khan receiving death threats which he believed were 

caused by Minik, and Khan’s anger towards Minik over the 

same, and Die stated that the No Contact Directive would not 

have been issued absent that history.”

C. Prior Approval Rule

Before this lawsuit was filed, Student Code § 2-407 prohibited students from “post[ing] and distribut[ing] leaflets, 

handbills, and other types of materials” about candidates for 

non-campus elections without “prior approval.” The University Student Disciplinary Procedures explain that a student 

who violates the Student Code faces disciplinary action, including reprimand, censure, probation, suspension, and
No. 19-2807 11

dismissal from the University. There is no evidence in the record that the University ever enforced the prior approval rule.

The Student Code was amended to repeal the rule shortly 

after this lawsuit was initiated. To eliminate the provision, the 

University followed the steps set forth in the University’s 

published “Procedure for Amending the Student Code.” On 

July 15, 2019, the Conference on Conduct Governance—a 

standing committee of the Urbana-Champaign Senate that includes faculty members, administrators, and students—voted 

to enact an amendment to the Student Code abolishing the 

prior approval rule. The Chancellor approved this amendment on July 18—four days before the University filed its opposition to Speech First’s preliminary injunction motion—

and it went into effect immediately. The current version of the 

Student Code reflects this amendment. Through the sworn 

declaration of Associate Dean of Students Rhonda Kirts, the 

University represented both to the district court and to this 

Court that it has no intention of restoring the eliminated provision.

D. Procedural History 

Speech First brought this lawsuit against University administrators in their official capacities, challenging the three 

aforementioned policies and seeking declaratory and injunctive relief. Speech First quickly moved for a preliminary injunction to enjoin the University from enforcing the prior approval requirement; using the BART and BIP processes to “investigate, log, threaten, or punish students (including informal punishments) for bias-motivated incidents”; and issuing 

NCDs “without clear, objective procedures ensuring the directives are issued consistent with the First Amendment.” In 

support of its motion, Speech First offered a three-page 
12 No. 19-2807

declaration from its national president, Nicole Neily, who 

communicates second- (and sometimes third-) hand information about BART’s operations that she purportedly received from current and former students. Speech First did not

specifically identify any student member who provided such 

information or submit declarations from any student member, even pseudonymously. As a result, no student at the University explained to the district court any specific speech they 

wished to engage in, nor did any student explain how the 

challenged policies have discouraged them from expressing 

their views. The University, by contrast, contradicted Neily’s 

generalized affidavit with detailed declarations, supported by 

twenty-five exhibits, from five University administrators, all 

of whom are intimately involved with BART, BIP, or student 

discipline. Neither party presented live testimony. 

In ruling on the preliminary injunction motion, the district 

court described the declaration Speech First submitted from 

Neily as “a conclusory statement based on its national association’s president’s ‘familiarity with’ anonymous students,” to 

the effect that the “Students’ expressing their views on (very 

generally-described) topics could result in their being reported, investigated, and punished by BART for engaging in 

a bias-motivated incident.” The court found “more informative the detailed statements about BART from University staff 

that are personally involved with BART, consistently describing how BART operates.”

The district court denied the preliminary injunction motion. The court held, first, that Speech First’s claim related to 

the prior approval requirement was moot, and second, that 

Speech First failed to demonstrate standing to challenge the 

BART and BIP processes and the imposition of NCDs. 
No. 19-2807 13

Specifically, regarding standing, the district court found that

Speech First did not show that its members face a credible 

threat of enforcement or that the policies have an objective 

chilling effect on their speech. Speech First appealed.

II. Discussion

To obtain a preliminary injunction, a plaintiff must show 

that: (1) without this relief, it will suffer “irreparable harm”; 

(2) “traditional legal remedies would be inadequate”; and 

(3) it has some likelihood of prevailing on the merits of its 

claims. Courthouse News Serv. v. Brown, 908 F.3d 1063, 1068 

(7th Cir. 2018). If a plaintiff makes such a showing, the court 

then must weigh the harm the denial of the preliminary injunction would cause the plaintiff against the harm to the defendant if the court were to grant it. Id. (citing Ty, Inc. v. Jones 

Grp., Inc., 237 F.3d 891, 895 (7th Cir. 2001)). If the plaintiff is 

likely to win on the merits, the balance of harms need not 

weigh as heavily in his favor. Girl Scouts of Manitou Council, 

Inc. v. Girl Scouts of the U.S. of Am., Inc., 549 F.3d 1079, 1086 

(7th Cir. 2008) (quoting Roland Mach. Co. v. Dresser Indus., Inc., 

749 F.2d 380, 387 (7th Cir. 1984)). This balancing process also 

considers the public interest, or the effects the preliminary injunction—and its denial—would have on nonparties. Id. 

The party seeking a preliminary injunction bears the burden of showing that it is warranted. Courthouse News Serv., 908 

F.3d at 1068 (citing Mazurek v. Armstrong, 520 U.S. 968, 972 

(1997) (per curiam)). “We ‘will not reverse a district court’s 

grant or denial of a preliminary injunction absent a clear 

abuse of discretion by the district court.’” Joseph v. Sasafrasnet, 

LLC, 734 F.3d 745, 747 (7th Cir. 2013) (quoting Moody v. Amoco 

Oil. Co., 734 F.2d 1200, 1217 (7th Cir 1984)). We review the district court’s legal conclusions de novo and findings of fact for 
14 No. 19-2807

clear error. Valencia v. City of Springfield, 883 F.3d 959, 966 (7th 

Cir. 2018). Absent such errors, we afford a district court’s decision “great deference.” Id.

A. Standing 

Speech First challenges the district court’s ruling that it 

failed to demonstrate standing to seek a preliminary injunction against the University’s BART, BIP, and NCD policies.

Speech First’s burden to demonstrate standing in the context 

of a preliminary injunction motion is “at least as great as the 

burden of resisting a summary judgment motion.” Lujan v. 

Nat’l Wildlife Fed’n, 497 U.S. 871, 907 n.8 (1990). Thus, Speech 

First must “‘set forth’ by affidavit or other evidence ‘specific 

facts’,” rather than “general factual allegations of injury.” Six 

Star Holdings, LLC v. City of Milwaukee, 821 F.3d 795, 801–02 

(7th Cir. 2016). 

To establish standing under Article III of the Constitution, 

a plaintiff must show (1) an “injury in fact,” (2) that the challenged conduct caused the injury, and (3) some likelihood 

that a decision in his favor will remedy the injury. Susan B. 

Anthony List v. Driehaus (“SBA List”), 573 U.S. 149, 157–58 

(2014). An association has standing to sue on behalf of its 

members when: (a) its members would have standing to sue 

on their own; (b) the interests the association “seeks to protect 

are germane to the organization’s purpose”; and (c) “neither 

the claim asserted nor the relief requested requires the participation of individual members.” Hunt v. Washington State Apple Advert. Com’n, 432 U.S. 333, 343 (1977). No party disputes 

that, if its members were to have standing, Speech First would 

have associational standing. Rather, Speech First disputes the 

district court’s conclusion that it could not show an injury in

fact.
No. 19-2807 15

For an injury to satisfy Article III standing requirements, 

it must be “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” SBA List, 573 U.S. at 158 

(quoting Lujan v. Def. of Wildlife, 504 U.S. 555, 560 (1992)). 

Where the plaintiff brings a facial challenge under the First 

Amendment, a prior enforcement action is not required. Id. at 

158–59. In the absence of an enforcement action, though, 

plaintiffs must make one of two showings to establish an injury in fact. First, a plaintiff may show an intention to engage 

in a course of conduct arguably affected by a policy, and that 

he faces a credible threat the policy will be enforced against 

him when he does. Am. Civil Liberties Union of Ill. v. Alvarez, 

679 F.3d 583, 590–91 (7th Cir. 2012) (quoting Babbitt v. United 

Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)). Second, a 

plaintiff may show a chilling effect on his speech that is objectively reasonable, and that he self-censors as a result. Bell v. 

Keating, 697 F.3d 445, 454 (7th Cir. 2012) (citing Laird v. Tatum, 

408 U.S. 1, 13–14 (1972) (“[A] plaintiff’s notional or subjective 

fear of chilling is insufficient to sustain a court’s jurisdiction 

under Article III.”)). For either that credible threat of enforcement or chilling effect to be “‘particularized,’ it ‘must affect 

the plaintiff in a personal and individual way.’” Spokeo, Inc. v. 

Robins, 136 S.Ct. 1540, 1548 (2016) (quoting Lujan, 504 U.S. at 

560); see also Bell, 697 F.3d at 454 (“The plaintiff must substantiate a concrete and particularized chilling effect on his protected speech or expressive conduct to pursue prospective relief.”).1

1 We note these two showings have some degree of overlap. As the 

Fourth Circuit has recognized, “Either way, a credible threat of enforcement is critical; without one, a putative plaintiff can establish neither a 

realistic threat of legal sanction if he engages in the speech in question, nor 
16 No. 19-2807

It is uncontested that the University has not investigated 

or punished any of the students who are members of Speech 

First pursuant to any of the challenged University policies. 

Rather, Speech First asserts that the University’s policies chill 

the students’ speech because the students fear the University 

will investigate or punish them under these policies. 

1. BART and BIP

We first turn to whether Speech First has established the 

injury in fact requirement concerning its claims against BART 

and BIP, namely, whether it has demonstrated that these policies pose a credible threat of enforcement to any student or 

whether any student has faced an objectively reasonable 

chilling effect on his or her speech. Important for our analysis 

is the nature of our review: we must leave the factual findings 

of the district court undisturbed unless “on the entire evidence” we are “left with the definite and firm conviction that 

a mistake has been committed.” Girl Scouts, 549 F.3d at 1086

(quoting Anderson v. Bessemer City, N.C., 470 U.S. 564, 573 

an objectively good reason for refraining from speaking and ‘self-censoring’ instead.” Abbott v. Pastides, 900 F.3d 160, 176 (4th Cir. 2018). Indeed, 

“[w]hen plaintiffs ‘do not claim that they have ever been threatened with 

prosecution, that a prosecution is likely, or even that a prosecution is remotely possible,’ they do not allege a dispute susceptible to resolution by 

a federal court.” Schirmer v. Nagode, 621 F.3d 581, 586 (7th Cir. 2010) (quoting Babbitt, 442 U.S. at 298–99). Nevertheless, we search for both showings. 

See, e.g., Ctr. for Individual Freedom v. Madigan, 697 F.3d 464, 473–74 (7th 

Cir. 2012) (recognizing that the plaintiff may show only that she faces “a 

realistic danger of sustaining a direct injury as a result of the statute’s operation of enforcement” and that “the chilling of protected speech may 

thus alone qualify” as an injury in fact ). 
No. 19-2807 17

(1985)). The district court made several factual findings about 

BART in particular, and Speech First has not demonstrated 

that any are clearly erroneous and did not submit evidence 

disputing many of them. Furthermore, the Neily declaration 

does not even mention BIP. Because Speech First did not submit any evidence beyond the Neily declaration, it has not disputed or raised any factual challenge to the BIP information 

and therefore the district court did not commit any clear error 

in its findings regarding that policy. 

First, the district court found that “[t]he disciplinary processes do not apply to students expressing the views the Students wish to express or any other opinions. Bias-motivated 

speech alone is not a Student Code violation.” Thus, the district court concluded that “being reported to BART or BIP results in essentially no consequences.” Speech First does not 

dispute these findings, which undermine its contention that 

its members face a credible threat of enforcement.

Second, the district court found that “[t]he Students have 

not described any statements they wish to make with any particularity, so it is unclear whether they would even be likely 

to be reported to BART or BIP.” The Fourth Circuit’s decision 

in Abbott v. Pastides, 900 F.3d 160 (4th Cir. 2018), is instructive 

here. In that case, students received official letters instructing 

them to attend a mandatory meeting with University of South 

Carolina officials after the students hosted a “Free Speech” 

event. Id. at 163. The student brought a facial challenge to the 

university’s harassment policy, arguing that it was unconstitutionally vague and overbroad. Id. The Fourth Circuit concluded that, because plaintiffs failed to identify any speech 

event they planned or wished to sponsor in the future, they 

had not demonstrated that that the defendants “deterred 
18 No. 19-2807

some specific intended act of expression protected by the First 

Amendment.” Id. at 171. Similarly, here, Speech First has 

failed to identify in the record specific statements any students wish to make that the University’s policies have chilled. 

See Bell, 697 F.3d at 454 (requiring a showing of a particularized chilling effect).

Third, the district court found that “[c]onversations with 

BART are optional. Most students contacted by BART do not 

respond at all, or decline the offer of a meeting, and no consequences occur if a student declines to meet with BART.” 

Speech First insists “[n]o student would see these requests 

from BART as voluntary.” Its only support for this bold assertion is Neily’s discredited declaration that BART officials tell 

students that BART needs to speak with them. The district 

court’s finding of fact is not clearly erroneous, especially considering that Speech First offers only a broad statement from 

someone lacking first-hand experience with BART who in 

turn relies solely on information from unidentified students.

If students’ perception of reality on campus is different from 

the picture the University describes, Speech First has put forth 

no evidence—other than Neily’s general, conclusory contentions—to demonstrate that is so: nothing in the record shows 

that any individual student fears potential consequences resulting from an invitation to meet with BART, or consequences from declining that invitation, and has self-censored 

because of those fears. See Laird, 408 U.S. at 11 (plaintiffs must 

show a chilling effect occurred because they are “either presently or prospectively subject to” a challenged policy). Furthermore, the fact that a majority of students actually decline 

a meeting supports the conclusion that students do not feel 

compelled to meet.
No. 19-2807 19

This same factual finding—that students view the conversations with BART as optional—distinguishes this case from 

Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963). Speech First 

cites this case for the proposition that “[c]ourts do not ignore 

First Amendment problems simply because state defendants 

promise that their interactions are ‘voluntary.’” In Bantam, the 

Rhode Island Commission to Encourage Morality in Youth 

sent dozens of notices to a publication distributor stating that 

certain publications were inappropriate for sales to youth. 372 

U.S. at 59–61. The Supreme Court characterized the Commission’s notices “virtually as orders” that were “reasonably understood to be such by the distributor,” with “invariabl[e] follow[] up by police visitations.” Id. at 68. The notices, the Court 

determined, were really “thinly veiled threats.” Id. Here, the

district court found no such threats; rather, the court concluded invitations to meet with BART staff are “voluntary” 

and result in “essentially no consequences.” 

Abbott provides useful guidance on this point, as well. 

There, the Fourth Circuit held that the prospect of facing a 

mandatory meeting and subsequent investigation was insufficient to make a showing of standing. The court even acknowledged, “[W]e do not doubt that a college student reasonably 

might be alarmed and thus deterred by an official letter from 

a University authority ... raising the prospect of an investigation and ultimate recommendation to the University Provost 

and President, directing his attendance at a meeting, and prohibiting him from discussing the matter with others.” 900 F.3d 

at 171. The court nevertheless concluded, 

[A] threatened administrative inquiry will not be 

treated as an ongoing First Amendment inquiry sufficient to confer standing unless the administrative 
20 No. 19-2807

process itself imposes some significant burden. ... 

Even an objectively reasonable “threat” that the plaintiffs might someday have to meet briefly with a University official in a non-adversarial format, to provide 

their own version of events in response to student complaints, cannot be characterized as the equivalent of a 

credible threat of “enforcement” or as the kind of “extraordinarily intrusive” process that might make selfcensorship an objectively reasonable response.

Id. at 179. It follows that if a mandatory meeting does not 

demonstrate a credible threat of enforcement, neither does an 

invitation to an optional one.

Fourth, the district court found that “[w]hile some BART 

staff are drawn from departments with disciplinary or law enforcement functions, BART has no such functions. ... BART 

has no authority to impose sanctions, and BART does not require any student to change his behavior.” Speech First does 

not contest the district court’s finding that BART itself does 

not have disciplinary authority. Instead, Speech First points 

to the possibility that BART may refer potential Student Code 

violations to OSCR and potential legal violations to the University Police. But again, as the district court found, “[b]iasmotivated speech alone is not a Student Code violation,” and 

thus would not be the sole basis for a referral. BART does not 

determine whether punishment is warranted or impose such 

punishment; rather, that determination is left to the OSCR or 

the Police. 

As Speech First does not dispute that BART lacks disciplinary authority, it cites Backpage.com, LLC v. Dart, 807 F.3d 229 

(7th Cir. 2015), for the proposition that the University can chill 

speech without threatening an investigation or prosecution, 
No. 19-2807 21

and even without “authority to take any official action.” Id. at 

236. But Backpage is readily distinguishable. In that case, Cook 

County Sheriff Thomas J. Dart sent a letter on his official letterhead to credit card companies, stating, “As the Sheriff of 

Cook County, a father and a caring citizen, I write to request 

that your institution immediately cease and desist from allowing your credit cards to be used to place ads on websites 

like Backpage.com.” Id. at 231. He also wrote that the companies’ involvement with Backpage.com had “become increasingly indefensible,” and that “[f]inancial institutions ... have 

the legal duty to file ‘Suspicious Activity Reports’ to authorities in cases of human trafficking and sexual exploitation of 

minors.” Id. at 232. He included a citation to the federal 

money-laundering statute, 18 U.S.C. § 1956, insinuating that 

the credit card companies could be prosecuted for their failure to comply. Id. The letter instructed the companies to provide contact information for an individual who the Sheriff 

could “work with on this issue.” Id. A strategy memo by a 

member of the Sheriff’s staff also proposed approaching the 

credit card companies with “threats in the form of ‘reminders’” about “their potential susceptibility to ‘money laundering prosecutions ... and/or hefty fines.’” Id. Two days after 

sending the letter, the Sheriff’s Office issued a press release 

captioned “Sheriff Dart’s Demand to Defund Sex Trafficking 

Compels Visa and MasterCard to Sever Ties with Backpage.com.” Id. “The causality [was] obvious.” Id. at 233. We 

concluded “the letter was not merely an expression of Sheriff 

Dart’s opinion. It was designed to compel the credit card companies to act by inserting Dart into the discussion.” Id. at 232. 

The University’s invitation to a voluntary meeting falls 

well short of the level of coercion the Sheriff invoked in Backpage. Although the Sheriff did not threaten the companies 
22 No. 19-2807

with an investigation or prosecution, a letter on official letterhead demanding action, condemning their activities, and reminding them of their potential liability is a far cry from a voluntary invitation to a meeting. Comparing the impact of the 

Sheriff’s letter to that of BART’s outreach demonstrates this is 

true: whereas most students do not respond to BART’s requests, Visa and MasterCard immediately ended their relationship with Backpage. “[T]he fact that a public-official defendant lacks direct regulatory or decisionmaking authority 

... is not necessarily dispositive[.]” Okwedy v. Molinari, 333 

F.3d 339, 344 (2d Cir. 2003) (per curiam). “What matters is the 

distinction between attempts to convince and attempts to coerce.” Id. Whereas Sheriff Dart’s letter was an “attempt to coerce,” the University’s actions are, at worst, an “attempt to 

convince.” Particularly when the majority of students BART 

contacts decline a meeting, Speech First’s speculation that 

BART’s outreach carries an implicit threat of consequences

lacks merit. 

On appeal, Speech First highlights two out of the dozens 

of bias-motivated incidents and resulting responses in the record to demonstrate that, contrary to the University’s assertions, BART refers some incidents to University Police. These 

two incidents include:

• “Team members participated in reporting [an offensive] page to Facebook and consulted with police, who 

were unable to identify those responsible for the page.” 

• “A staff member from the Counseling Center received 

emails that were sexually explicit and targeting Asian 

women. The staff member was given information on 

resources and information about the person who sent 

the emails was given to police.”
No. 19-2807 23

As a preliminary matter, Speech First failed to raise these incidents before the district court. “It is the parties’ responsibility to allege facts and ‘indicate their relevance under the correct legal standard.’” Econ. Folding Box Corp. v. Anchor Frozen 

Foods Corp., 515 F.3d 718, 721 (7th Cir. 2008) (quoting APS 

Sports Collectibles, Inc. v. Sports Time, Inc., 299 F.3d 624, 631 (7th 

Cir. 2002)). Speech First has therefore waived this argument.

But even if Speech First had raised these facts before the 

district court, they do not demonstrate that Speech First has 

standing to challenge BART. First, Speech First did not present evidence to the district court that BART would refer a 

student to University Police on the basis of speech independent of a violation of the Student Code or because a student 

declined to respond to BART outreach. BART, like any member of the University community, could report a potential Student Code violation to OSCR or the Police without infringing 

on any student’s right to free speech. And if BART does make 

a referral to University Police in appropriate circumstances, 

Speech First has not demonstrated that BART has any power 

to punish: that determination is left to OSCR or the Police. Accordingly, Speech First has not put any evidence in the record 

to demonstrate that the law enforcement liaison to BART 

from the University Police Department was involved in either 

of the purported referrals or in interactions with any of the 

individuals who made or are identified in complaints. The 

mere possibility of a referral does not demonstrate standing.

We acknowledge some practicalities influencing this conclusion. Consider, for example, if BART were to learn of a violation of the law, or of a potential violation, such as one that 

might put a student in imminent danger. The fact that this 

knowledge came through a BART webform or through an 
24 No. 19-2807

email to the BART email address does not prevent BART from 

sharing this information with law enforcement. The ability of 

BART to inform the relevant authorities of a violation, when 

there would be no threat of sanction on the basis of speech 

absent that violation, does not alone result in a First Amendment harm. 

Speech First also cites the commonalities between this case 

and the Sixth Circuit’s recent decision in Speech First, Inc. v. 

Schlissel, 939 F.3d 756 (6th Cir. 2019), where Speech First challenged the University of Michigan’s equivalent of BART—

what the court called the Response Team—along with other 

policies. In that case, the Sixth Circuit, emphasizing the Response Team’s referral power, reversed the district court’s denial of a preliminary injunction on standing grounds. Id. at 

765. The court noted that although the referral itself does not 

punish speech, it “subjects students to processes which could 

lead to those punishments” and thus to “consequences that 

[the student] otherwise would not face.” Id. The court continued, “a student who knows that reported conduct might be 

referred to police or OSCR could understand the invitation to 

carry the threat: ‘meet or we will refer your case.’” Id. Here, 

though, Speech First has put forth no evidence that BART will 

refer students for a failure to respond to their outreach or accept a meeting. Nor did Speech First present evidence that 

students at the University of Illinois interpret the invitation to 

meet with BART as an implicit threat. Indeed, the record supports a contrary conclusion—the fact that the majority of students decline to meet signals that students do not fear consequences from their refusal to participate.

Lastly, the district court found that “BART interactions 

with students are private, not recorded in academic or 
No. 19-2807 25

disciplinary records, and not disclosed outside of OSCR without permission.” Neily’s declaration purports to contradict 

this point, stating that BART lists details of reported incidents

on students’ permanent records and makes this information

publicly available. Neily’s declaration also cites a third-hand 

statement from an unknown student’s advisor, where the advisor told the student that he could see in the student’s file 

that the student had met with BART. The district court discredited these assertions for good reason: the annual reports 

BART issues to the public—the only examples of BART reporting in the record—are completely anonymized with essentially no way to track down the identity of any offender. 

Furthermore, Speech First has not provided any evidence—

through Doe affidavits or otherwise—that any individual student fears the possible publication of student speech in these 

annual reports or that potential publication led to any selfcensorship.

Our analysis of Speech First’s evidentiary showing does 

not, at this stage, speak to its success on the merits of its First 

Amendment claims, but to whether it has met its burden to 

demonstrate that any of its members experience an actual, 

concrete, and particularized injury as a result of the University’s policies for the purpose of standing to pursue a preliminary injunction. Whereas Speech First produced a threepage, bareboned declaration from someone lacking first-hand 

knowledge of BART and how it operates on campus, the University put forth multiple, detailed affidavits, consistently describing BART’s operations.2 Speech First’s sparse submission 

2 We highlight the number of University-produced affidavits, and the 

short-length of Neily’s, to make more tangible the sharp contrast in the 

level of detail and supporting facts between the two submissions. We do 
26 No. 19-2807

failed to demonstrate that any of its members face a credible 

threat of any enforcement on the basis of their speech or that 

BART’s or BIP’s responses to reports of bias-motivated incidents have an objective chilling effect. The district court therefore correctly determined that Speech First failed to demonstrate standing to challenge BART’s and BIP’s processes. 

2. NCDs

Speech First similarly fails to demonstrate standing to seek 

a preliminary injunction against the University’s policy of issuing NCDs. Speech First argues that its student members 

self-censor because they fear the University will issue NCDs

in response to their speech. It contends that § 4.06(d) of the 

Student Disciplinary Procedures authorizes disciplinary officers to issue NCDs whenever they believe an NCD is “warranted,” meaning there are no limits on when the University 

can issue an NCD. But § 4.06(a) explains that the disciplinary 

officers’ authority stems from their responsibility for enforcing the Student Code, and thus cabins their ability to issue 

NCDs. Brown’s and Die’s declarations support this reading: 

both state that the University can only impose NCDs to enforce the Student Code and prevent violations of it, not in response to student speech. 

Speech First provides one example it contends counters

this conclusion—the Minik–Khan incident. But this episode 

does not bolster its case. The district court concluded that the 

University issued the NCD not “just because Minik wrote 

about Khan online,” but because of “an extensive history of 

not suggest that the number and length alone has any bearing on or significance to our analysis of their contents.
No. 19-2807 27

hostile and escalating interactions.” Minik’s own admissions 

in his email to Die—that the NCD did not prevent him from 

writing journalistic stories pertaining to Khan and that an 

NCD is not a “direct disciplinary charge”—refute any suggestion that this NCD punished Minik on the basis of his expression. This example would not lead a student to reasonably believe that speaking about controversial issues—independent 

of other illegitimate behavior—would result in the student receiving an NCD, as the district court explicitly found that 

other severe conduct, culminating in death threats, actually 

prompted the NCD in this instance. Nor could this example 

lead a student to reasonably believe that his or her protected 

speech would violate an NCD if the student were subject to 

one—Minik explicitly admitted otherwise. 

Indeed, the uncontested statistics the University provided 

about the reasons for imposing NCDs demonstrate that the 

majority of NCDs arise as a result of a violation of the Student 

Code—which, again, does not prohibit protected speech. Others result from complaints of sexual misconduct or from an 

extended and intensifying conflict between students, where 

the University feared a future Student Code violation or violence would occur. Speech First has failed to present any example where the University issued an NCD on the basis of 

speech, or demonstrate that an NCD prohibits speech if imposed. And as in the BART context, Speech First has not produced any evidence that any student fears expressing a particular viewpoint due to concern the University will issue an 

NCD against him. Speech First therefore has failed to demonstrate a credible threat of any enforcement action to justify the 

students’ purported self-censorship. 
28 No. 19-2807

B. Mootness 

Lastly, we address whether Speech First’s effort to enjoin 

the University’s since-repealed (and never previously enforced) Student Code § 2-407, the prior approval rule, is moot. 

Article III limits federal court jurisdiction to “live cases and 

controversies ... and ‘an actual controversy must exist not 

only at the time the complaint is filed, but through all stages 

of the litigation.’” Ozinga v. Price, 855 F.3d 730, 734 (7th Cir. 

2017) (quoting Kingdomware Techs., Inc. v. United States, 136 S. 

Ct. 1969, 1975 (2016)). “A question of mootness arises when ... 

a challenged ordinance is repealed during the pendency of litigation, and a plaintiff seeks only prospective relief.” Fed’n of 

Advert. Indus. Representatives, Inc. v. City of Chicago (“Federation”), 326 F.3d 924, 929 (7th Cir. 2003). “At that point, there is 

no longer an ongoing controversy: the source of the plaintiff’s 

prospective injury has been removed, and there is no ‘effectual relief whatever’ that the court can order.” Ozinga, 855 

F.3d at 734 (quoting Church of Scientology of Cal. v. United 

States, 506 U.S. 9, 12 (1992)). We review the question of 

whether an issue has been rendered moot de novo. Federation, 

326 F.3d at 928–29. 

As a general rule, in cases between private parties, “a defendant’s voluntary cessation of challenged conduct will not 

render a case moot because the defendant remains ‘free to return to his old ways.’” Id. at 929 (quoting United States v. W.T. 

Grant Co., 345 U.S. 629, 632–33 (1953)). Indeed, a case will become moot only if it is “absolutely clear that the allegedly 

wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Env. Serv. (TOC), Inc., 

528 U.S. 167, 189 (2000)). But “[w]hen the defendants are public officials ... we place greater stock in their acts of self-
No. 19-2807 29

correction, so long as they appear genuine.” Federation, 326 

F.3d at 929 (quoting Magnuson v. City of Hickory Hills, 933 F.2d 

562, 565 (7th Cir. 1991)); Freedom from Religion Found., Inc. v. 

Concord Comty. Schs., 885 F.3d 1038, 1051 (7th Cir. 2018) (“A 

defendant’s voluntary cessation of challenged conduct does 

not necessarily render a case moot. ... But if a government actor sincerely self-corrects the practice at issue, a court will give 

this effort weight in its mootness determination.”). A contrary 

conclusion would “put this court in the position of presuming 

[the University] has acted in bad faith—harboring hidden motives to reenact the [policy] after we have dismissed the case—

something we ordinarily do not presume.” Federation, 326 

F.3d at 929. “[W]e have repeatedly held that the complete repeal of a challenged [policy] renders a case moot, unless there 

is evidence creating a reasonable expectation that the [University] will reenact the [policy] or one substantially similar.” Id.

at 930. 

“Only in cases where there is evidence that the repeal was 

not genuine has the Court refused to hold the case moot.” Id. 

In City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283 (1982)—

a case Speech First cites—the Supreme Court held that a case 

was not moot despite the repeal of a challenged statute because the city had announced its intent to reenact the statute 

if the district court’s judgment were vacated. Id. at 289 & n.11. 

Similarly, in United States v. Sanchez-Gomez, 138 S. Ct. 1532 

(2018), the Court held a challenge to a policy was not moot 

because the government had represented “that the Southern 

District intend[ed] to reinstate its policy once it [was] no 

longer bound by the decision of the Courts of Appeals.” Id. at 

1537 n.*. And in Trinity Lutheran Church of Columbia, Inc. v. 

Comer, 137 S. Ct. 2012 (2017), the governor issued a press 
30 No. 19-2807

release on the eve of oral argument before the Supreme Court

announcing a repeal of the challenged policy. Id. at 2019 n.1. 

We conclude Speech First’s challenge to Student Code § 2-

407 is moot. The University is a public entity and an arm of 

the state government of Illinois, and therefore receives the 

presumption that it acts in good faith. The University repealed its policy imposing a prior restraint on posting of materials for non-campus elections after Speech First initiated 

this litigation. This policy is not a threat to students past, present, or future. There is no evidence in the record indicating 

the University ever enforced the policy. With it no longer in 

effect, no current student can suffer any harm from it. Furthermore, through Kirts’s sworn affidavit, the University affirmatively represented to the district court and to this Court 

that it does not intend to reenact the provision. And the University undertook a formal amendment process, which required a full vote by the Conference on Conduct Governance 

and approval by the Chancellor. This process is analogous to 

legislation, which Speech First concedes moots an issue. Despite Speech First’s assertions to the contrary, our precedent 

does not require notice-and-comment rulemaking or that

elected officials perform the modifications.

The two cases our colleague in dissent cites make no difference to our analysis. To begin, in Concord, a superintendent’s statement disavowing future school holiday concerts 

that promote religious beliefs was insufficient to moot a case 

where the “the school board had the authority to adopt official policies” prohibiting shows with religious purposes and

“failed to document in any way its decision to make the 

changes permanent.” 885 F.3d at 1052. The factual scenario in 

Doe ex rel. Doe v. Elmbrook Sch. Dist., 658 F.3d 710 (7th Cir. 
No. 19-2807 31

2011), vacating the original panel’s opinion but adopting its justiciability analysis, 687 F.3d 840, 842 (7th Cir. 2012) (en banc), is 

nearly identical. Although a school’s superintendent and 

principal had represented that they did not intend to hold the 

school’s graduation ceremony in a church, the school failed to 

establish mootness because it did not adopt a policy formally 

prohibiting the use of churches for graduation. Id. at 720–21. 

In both cases, a mere statement was not enough—the school 

board needed to enact a formal policy, as was within its authority to do. Here, the University not only submitted Kirts’s 

declaration: it formally amended the Student Code. 

The Sixth Circuit in Schlissel applied a more stringent test 

to determine mootness than the one our own precedent demands: it required not only a formal process to repeal a policy 

but affirmative signals from the University that the repeal was 

genuine. The Sixth Circuit held that Speech First’s challenge 

to definitions of “bullying” and “harassing” was not moot, 

even though the University of Michigan modified these definitions after Speech First filed suit. 939 F.3d at 770. The Sixth 

Circuit noted, “Where regulatory changes are effected 

through formal, legislative-like procedures, we have found 

that to moot the case the government need not do much more 

than simply represent that it would not return to the challenged policies.” Id. at 768. The court took issue with the fact 

that the University of Michigan did not “affirmatively state[] 

that it does not intend to reenact the challenged definitions.” 

Id. at 769. The University of Illinois made exactly this assertion, and Speech First has not rebutted it. 

Moreover, in Schlissel, the University of Michigan actively 

applied these definitions, promoted them on the website of its 

Office of Student Conflict Resolution, and continued to 
32 No. 19-2807

defend the constitutionality of the definitions in the litigation. 

Id. at 762, 770. These factors contributed to the court’s conclusion that the University’s modification of the definitions did 

not moot Speech First’s claim. Id. at 770. Here, there is no evidence that the University of Illinois ever enforced the nowrepealed § 2-407 in the first place, and the University has at no 

point ever defended its constitutionality. Even under the Sixth 

Circuit’s more demanding standard, Speech First’s claim regarding § 2-407 is moot. 

Indeed, the dissent’s mootness analysis would create a 

standard going beyond that of even the Sixth Circuit in Schlissel, as it adds several requirements that draw no support from 

Supreme Court or our own precedent. We have never demanded, nor did the Sixth Circuit require, a concession that a 

rule is unconstitutional. In addition, while the Sixth Circuit 

did find relevant the lack of an affirmative statement that the 

university did “not intend to reenact the challenged” policy, 

it did not require a binding promise that the university will 

never revisit it. Id. at 769. We similarly have never required a 

government actor to issue a promise that it will not return to 

its prior policy. And while the dissent takes issue with the fact 

that the University here could repeal the policy in four days’ 

times, we are unaware of any precedent suggesting that the 

amount of time it takes to perform a repeal has any bearing 

on the mootness analysis. What the dissent appears to hang 

its hat on—the merely theoretical possibility that the University could decide to revisit the policy at some remote point in 
No. 19-2807 33

the future without any evidence of an intention to do so—is

not enough to survive a mootness challenge.3

III. Conclusion

Speech First lacks standing to seek a preliminary injunction against the University’s BART, BIP, and NCD policies, 

and its challenge to Student Code § 2-407 is moot. The judgment of the district court is AFFIRMED. 

3 The dissent also takes issue with the timing of the repeal, which came 

after the commencement of this litigation. Indeed, the Sixth Circuit in 

Schlissel also found that factor relevant to its analysis. But in that case, the 

university actively used the challenged definitions and there was thus “no 

indication ... that the University was so much as considering changing the 

definitions” before it did so. 939 F.3d at 769. Here, where there is no evidence the provision was ever enforced or that the University was even 

aware it was on the books, timing is not so suspect.
34 No. 19-2807

BRENNAN, Circuit Judge, concurring in part and dissenting 

in part. For several years universities have engaged in heightened efforts to supervise speech on their campuses. These 

steps can collide with the First Amendment’s free speech protections, especially of political speech. At issue in this case are 

the University of Illinois’s policies to monitor speech on campus and in residence halls, as well as the prohibition in its Student Code on distributing election literature on campus.

I concur with the majority opinion that, on this record,

Speech First offered insufficient evidence of injury in fact to 

qualify for associational standing. I do not conclude that the 

challenge to the Student Code prohibiting the disbursement 

of campaign literature is moot and respectfully dissent on that 

question.

I. Standing to Challenge Bias Responses

and No Contact Directives

A. Legal Framework

Associational standing, which Speech First asserts, is a 

function of that association’s individual members’ standing. 

Hunt v. Washington State Apple Advert. Comm’n, 432 U.S. 333, 

343 (1977) (recognizing an association has standing to sue on 

behalf of its members when members would otherwise have 

standing to sue in their own right). To establish constitutional 

standing under Article III, at least one association member 

must show an “injury in fact.” Spokeo, Inc. v. Robins, 136 S. Ct. 

1540, 1547–48 (2016); United Food & Commercial Workers Union 

v. Brown Group, 517 U.S. 544, 555 (1996); Lujan v. Defenders of 
No. 19-2807 35

Wildlife, 504 U.S. 555, 560 (1992). Whether Speech First’s members satisfy the injury-in-fact standard is one of the justiciability disputes in this case.1

“Injury in fact” means an invasion of a legally protected 

interest that is concrete and particularized, and actual or imminent, rather than conjectural or hypothetical. Lujan, 504 

U.S. at 560. In Spokeo the Supreme Court explained in detail 

the particularization and concreteness requirements. “For an 

injury to be ‘particularized,’ it ‘must affect the plaintiff in a 

personal and individual way.’” 136 S. Ct. at 1548 (quoting 

Lujan, 112 S.Ct. at 2136 n.1). Concreteness requires an injury 

be “de facto”; “that is, it must actually exist.” Id. “[I]ntangible 

injuries can nevertheless be concrete.” Id. (citations to First 

Amendment challenges omitted). The Court has “made it 

clear time and again that an injury in fact must be both concrete and particularized.” Id. (citing inter alia Susan B. Anthony 

List v. Driehaus (SBA List), 573 U.S. 149, 158 (2014)).

Finer points are introduced when a plaintiff tests a law or 

rule under the First Amendment. A facial challenge can be 

pre-enforcement. Steffel v. Thompson, 415 U.S. 452, 459 (1974); 

see also Brandt v. Vill. of Winnetka, Ill., 612 F.3d 647, 649 (7th Cir. 

2010). Without an enforcement action, what a plaintiff must 

show to satisfy the injury-in-fact requirement for a First 

Amendment claim has been described somewhat differently 

by different courts.

1 Not disputed are the other two elements of standing, a “causal connection between the injury and the conduct complained of,” meaning that 

the injury is “fairly traceable” to the defendant’s actions, and a likelihood 

that the injury “will be redressed by a favorable decision.” Lujan, 504 U.S. 

at 560–61.
36 No. 19-2807

As the majority opinion points out, to establish injury in 

fact, a plaintiff must make one of two showings. The first requires an intention to engage in a course of conduct arguably 

affected with a constitutional interest but which is proscribed 

by a policy, and a credible threat the policy will be enforced 

against the plaintiff. SBA List, 573 U.S. at 158–59; Babbitt v. 

United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979) (requiring “a credible threat of prosecution”). Under the second, 

a plaintiff must show a chilling effect on speech that is objectively reasonable, and the plaintiff self-censors as a result. Bell 

v. Keating, 697 F.3d 445, 454 (7th Cir. 2012). 

This court has elaborated on these showings in deciding 

other pre-enforcement facial First Amendment challenges. In 

Ctr. for Individual Freedom v. Madigan, 697 F.3d 464 (7th Cir. 

2012), a nonprofit organization (like Speech First) brought a 

pre-enforcement challenge to Illinois’s campaign finance disclosure requirements, contending they were constitutionally 

violative as vague and overbroad. This court’s evaluation centered on chilling effect. It noted that “[t]he injury-in-fact 

standard is often satisfied in pre-enforcement challenges to 

limitations on speech,” and recognized the harm of self-censorship without prosecution. Madigan, 697 F.3d at 473–74 (citing Virginia v. Am. Booksellers Ass’n (American Booksellers), 484 

U.S. 383 (1988)). “The chilling of protected speech may thus 

alone qualify as a cognizable Article III injury, provided the 

plaintiffs ’have alleged an actual and well-founded fear that 

the law will be enforced against them.’” Id. at 474 (quoting 

American Booksellers, 484 U.S. at 393). 

In Bell, an opinion decided the same day as Madigan, this 

court analyzed a pre-enforcement facial challenge that a fail-
No. 19-2807 37

ure-to-disperse provision in Chicago’s disorderly conduct ordinance was vague and overbroad. Chilled speech was recognized as an injury that can support standing, but a plaintiff’s 

subjective fear of chilling was insufficient to sustain a court’s 

Article III jurisdiction over such a claim. Id. at 453. “The plaintiff must substantiate a concrete and particularized chilling effect on his protected speech or expressive conduct to pursue 

prospective relief.” Id. at 454 (concluding the plaintiff had successfully alleged a chilling injury and enjoyed standing to sue 

for injunctive relief and to facially challenge the ordinance).

Below I consider this case under this framework.

B. Discussion

Speech First bears the burden to show standing as the 

party invoking federal jurisdiction. Lujan, 504 U.S. at 561. The 

evidence must be presented, as the majority opinion states, by 

affidavit or other evidence of specific facts rather than general 

allegations of injury. Six Star Holdings, LLC v. City of Milwaukee, 821 F.3d 795, 801–02 (7th Cir. 2016).

The majority opinion organizes its standing analysis 

around a series of factual findings by the district court, concluding that none are clearly erroneous and that Speech First 

has not submitted evidence disputing many of them. I concur 

with my colleagues’ review of some of these findings. Other

findings—such as a report to the bias assessment response 

team having no consequences, the voluntariness of a meeting 

with the bias assessment response team not chilling speech, 

and the privacy of students’ interactions with the bias assessment response team—I see as closer calls, and their resolution 
38 No. 19-2807

a function of the sparse evidence Speech First presented. Because there was no evidentiary hearing,2 those specific facts 

must be set forth by affidavit.

How specific the facts must be in this context has been set 

by the Supreme Court. In Laird v. Tatum, 408 U.S. 1 (1972), 

plaintiffs challenged the U.S. Army’s surveillance of civilian 

political activity as chilling their exercise of First Amendment 

rights. Affidavits on the plaintiffs’ motion for a preliminary 

injunction gave background information and described the 

complained-of activities. Id. at 3. The Court ruled that the 

mere existence and operation of a government system was insufficient to present a justiciable controversy. Id. at 10–14. 

In Laird the plaintiffs complained about “the mere existence ... of a governmental investigative and data-gathering 

activity,” and nothing more. Id. at 10. The Court held that the 

plaintiffs (the subjects of the surveillance) may have suffered 

a “subjective chill,” but did not allege “actual present or immediately threatened injury” to entitle them to standing. Id. 

at 15. “Allegations of a subjective ‘chill’ are not an adequate 

substitute for a claim of specific present objective harm or a 

threat of specific future harm” by the plaintiffs. Id. at 13–14. 

The plaintiffs must be “presently or prospectively subject to 

the regulations, proscriptions, or compulsions” being challenged, id. at 11, a threshold they did not meet. While governmental action with only an indirect effect on First 

Amendmentrights may be subject to constitutional challenge, 

plaintiffs seeking to invoke the judicial power must show that 

2 A hearing was set on the motion for preliminary injunction on September 23, 2019, but the district court issued its Order denying the motion 

six days before.
No. 19-2807 39

they sustained, or are in immediate danger of sustaining, a 

direct injury as a result of that action. Id. at 12–13 (citing Ex 

parte Levitt, 302 U.S. 633, 634 (1937)); see also Socialist Workers 

Party v. Att’y Gen. of U.S., 419 U.S. 1314, 1319 (1974) (Marshall, 

J., sitting as Circuit Justice) (concluding “specificity of the injury claimed by the applicants is sufficient, under Laird, to satisfy the requirements of Art. III.”).

The obverse circumstances were presented in Meese v. 

Keene, 481 U.S. 465 (1987). There a plaintiff wished to exhibit 

films about nuclear war and acid rain, and he challenged a 

federal statute that required those films to be labeled “political propaganda.” Id. at 467. The plaintiff submitted detailed 

and uncontradicted affidavits that he would be substantially 

harmed, his reputation would be adversely affected, and he 

risked injury as a result of the films being classified as propaganda, so the Court concluded he had standing to sue. Id. at 

472–74. If the plaintiff “had merely alleged that the appellation deterred him by exercising a chilling effect on the exercise 

of his First Amendment rights, he would not have standing to 

seek its invalidation.” Id. at 473 (citing Laird, 408 U.S. at 13-14).

Applying these standards here leads me to conclude that 

the statements in the Neily declaration lack the required specificity—including the particularity and concreteness—to meet 

this evidentiary threshold. Although the majority opinion 

cites to the number and length of the University’s affidavits, 

critical to me are the facts (or lack thereof) attested to on the 

topics of self-censoring, referrals for punishment or discipline, identification/anonymity, no-contact directives, and the 

bias incident protocol.

Self-censorship. The Neily declaration states that students 

A–D credibly fear the University’s bias assessment response 
40 No. 19-2807

initiative and its consequences, and that the only way for 

them to avoid it is to engage in self-censorship. But those two 

conclusory sentences in that declaration offer no evidence of 

any of these students self-censoring their speech to avoid the 

initiatives. For example, the students did not file anonymous 

affidavits setting forth what they would have said, when, 

where, and to whom. As explained in Laird, students A–D 

cannot merely object to the existence and operation of a system; they must show a specific present objective harm or 

threat of specific harm. 408 U.S. at 11. Rather than the detailed 

and unrebutted affidavits the plaintiff submitted in Meese, the 

students here averred a subjective chill without more. 

Yet even if students A–D had sufficiently established an 

objectively reasonable fear, under Bell they must substantiate 

a concrete and particularized chilling effect. We know more 

about what that means after Spokeo: “For an injury to be ‘particularized,’ it ‘must affect the plaintiff in a personal and individual way.” 136 S. Ct. at 1548. “A ‘concrete’ injury must be 

‘de facto’; that is, it must actually exist.” Id. (citation omitted). 

Here, no evidence has been presented of such effects on students A–D. To show that injuries “actually existed” plaintiffs 

must assert more than a mere conclusion that their speech has 

been chilled.

Referrals for Punishment or Discipline. The Neily declaration 

does not aver that any of the four students listed have been 

punished or disciplined, or threatened with punishment or 

discipline, and the record does not reveal any students being 

investigated or punished as a result of the two challenged 

University policies. The declaration does include an example 

of an advisor commenting to a student about a bias complaint 

against that student, but it does not connect that averment 
No. 19-2807 41

with students A–D, again failing the particularity and concreteness requirements.

In contrast are the more specific declarations from January 

Boten, Assistant Dean of Students in the Office for Student 

Conflict Resolution, and Justin Brown, Associate Dean of Students and Director of the Office for Student Conflict Resolution. They describe how the bias assessment response team 

does not make referrals to the police or the student disciplinary process unless the speech or conduct also violates the

Student Code.

Identification/Anonymity. Four students in the Neily declaration listed topics about which they wish to speak, advocate, 

and ask questions: students A and C on immigration, student 

B on Islamic policy, and student D on LGBT issues. Each year, 

the bias assessment response team issues a report describing 

the complaints it received and its responses. The year-end report includes these topics, but according to the University the 

report does not identify these (or other) students as having 

been approached to discuss alleged bias incidents or being 

given corrective actions.

Speech First argues that the detailed descriptions in the 

bias assessment response team report make some of the “offenders” (the term used in the University’s policies) easily

identifiable, and that students could fear inclusion in the report. Along with the descriptions in the majority opinion, examples of reported bias include a campus speaker “saying 

things like ‘America is the greatest country in the world,’” 

sidewalk chalk advocating “Women For Trump,” and an instructor “fail[ing] to use [a student’s] preferred gender pronouns and ma[king] statements about gender identity being a 

matter of choice.” To Speech First, the person charged with 
42 No. 19-2807

bias can easily be traced by comparing the bias report with a 

calendar and news reports, making chilling effects more 

likely. 

But the example Speech First cites—complaints received 

and the University response to an event on immigration—is 

absent from the Neily declaration. And there is no evidentiary 

connection between students A–D and the year-end report. 

Nor is there evidence as to the consequences for a student’s 

inclusion in the report. Absent such information, the declaration does not show that these four Speech First members have 

an objectively reasonable, actual, and well-founded fear that 

they will be identified, or that their anonymity will be compromised, by the year-end report.

No-Contact Directives. The Neily declaration presents no 

evidence that the University issued a no contact order against 

students A–D or issued such an order on the topics these students would like to discuss. 

Bias Incident Protocol. As the majority opinion points out,

the Neily declaration does not mention the bias incident protocol, which is the bias assessment reporting initiative applicable in University student housing. The three words “in their 

dormitories” included in the Neily declaration does not establish standing to challenge that procedure, even if it is similar 

in nature to the bias assessment response team. 

From the absence of specific facts attested to on these five 

topics, I conclude that under the legal framework discussed 

above, Speech First has not met its burden to establish standing. The evidence presented at this stage does not support the 

conclusion that students A–D had actual and well-founded 

fears that the University policies will be enforced against 
No. 19-2807 43

them, and that those four students have had a concrete and 

particularized chilling effect on their protected speech, despite the modest evidentiary threshold.

This conclusion—given the legal subject matter, the policies in dispute, and the arguments offered—is not uncomplicated. Speech First contends in its briefs that the University’s 

bias assessment response policies chill students’ speech. The 

topics about which students A–D wish to speak, unfettered, 

show their desire to engage in political speech.3 Reasonably 

risk-averse students generally avoid a burdensome investigative process. Such investigations could amplify reputational 

damage suffered by “offenders” even when the speech investigated is protected. 

The University also labels its students “offenders” on unverified accusations alone. Nobody likes to be called an “offender,” which bears with it some reputational damage. See, 

e.g., Meese, 481 U.S. at 473 (plaintiff submitted detailed affidavits, including the results of an opinion poll, that his exhibition of films classified as political propaganda would adversely affect his reputation). Because reputational damage 

can impair a student’s prospects for academic and professional success, objectively reasonable students may be expected to behave in ways that mitigate their exposure to any 

allegation that might trigger a bias investigation. “Process is 

punishment” is not a platitude; a University-controlled clearinghouse for speech can deter students from speaking out.

3 See, e.g., Brief of Amicus Curiae Southeastern Legal Foundation in 

Support of Plaintiff-Appellant and Reversal, pp. 1-5, ECF No. 18.
44 No. 19-2807

No educational institution should force students to balance academic and professional success against the free expression of political viewpoints. Potential “offenders” may 

not speak at all if they fear that University officials are monitoring them for biased speech.4 The practical effect of the bias 

assessment initiatives could be to communicate that open discussion should cease if it interferes with any listener’s subjective beliefs. 

While such consequences could conceivably constitute 

particular and concrete threats of harm chilling protected 

speech, none of this appears in the Neily declaration involving students A–D. Some of Speech First’s points and arguments are included in their briefs, but not in the evidence. For 

example, the dispute and subsequent no-contact directive between Khan and Minik is argued in the briefs, but absent from 

the evidentiary record. The bar is not being set too high here, 

as specific facts in affidavits are essential.5

This conclusion is also difficult to reconcile with the Sixth 

Circuit panel majority opinion in Speech First, Inc. v. Schlissel, 

939 F.3d 756, 765 (6th Cir. 2019), which held that Speech First 

had standing to challenge the University of Michigan’s bias 

response team initiative.6 The Neily declaration in Schlissel resembles her declaration here, and the district court in this case 

4 See, e.g., Amicus Brief of the Wisconsin Institute for Law & Liberty

Supporting Appellant and Reversal, pp. 6–10, ECF No. 25. 

5 Nor could the district court consider examples from the complaint 

which was not verified.

6 Another pending case challenges the University of Texas’s bias assessment response team initiatives. Speech First, Inc. v. Fenves, 384 F. Supp. 

3d 732, 735 (W.D. Tex. 2019) (denying motion for preliminary injunction, 
No. 19-2807 45

noted that the University of Michigan and the University of 

Illinois have “similar university bias response policies.” Still, 

on this record, Speech First has not met the standing requirements for this First Amendment pre-enforcement challenge

for the reasons discussed above.

“[A]bove all else, the First Amendment means that government has no power to restrict expression because of its 

message, its ideas, its subject matter, or its content.” Police 

Dep’t of Chicago v. Mosley, 408 U.S. 92, 95 (1972). Before a court 

may exercise its authority to limit government power, the justiciability rules and requirements must be followed. As the 

Court stated in Spokeo, Article III standing “serves to ... confine[] the federal courts to a properly judicial role.” 136 S. Ct. 

at 1547 (internal quotation marks and citations omitted). 

Standing requirements demarcate non-justiciable abstract 

questions from cases or controversies properly subject to adjudication. These requirements play a functional role in maintaining our separation of powers. See Antonin Scalia, The 

Doctrine of Standing as an Essential Element of the Separation of 

Powers, 17 SUFFOLK UNIV. L. REV. 881, 894-97 (1983). At this 

stage of this litigation specific facts establishing standing have 

not been presented.

II. Mootness of Prior Approval Rule

Student Code § 2-407 prohibited, without prior approval,

the posting and distribution of handout materials that promoted candidates for non-campus elections. Students who violated the provision were subject to discipline. 

and finding Speech First’s students members lack standing), appeal to 5th 

Cir. June 7, 2019 (No. 19-50529), case argued March 2, 2020.
46 No. 19-2807

Speech First challenges this prohibition as an impermissible prior restraint on political speech violating the First 

Amendment. Its complaint alleges the University published 

no criteria governing what materials merited approval or 

when it would rule on an application to post or distribute 

such election materials. Without the University having shown 

a compelling interest in a prior restraint of political speech, 

and this prohibition being narrowly tailored to such an interest, Speech First challenges this code provision as chilling protected speech and forcing students who do not wish to comply with this requirement to engage in self-censorship. 

Seven weeks after this lawsuit was filed—and four days 

before the University responded to the preliminary injunction 

motion—the University amended the Student Code to repeal 

the prior approval rule, as described in the majority opinion. 

The University’s Associate Dean of Students, Rhonda Kirts,

filed a declaration stating “[t]he University has no intention 

of restoring the eliminated provision or adopting a new provision similar to it, and therefore this elimination of the preapproval requirement for non-campus election materials is 

definitive.” The University argues Speech First’s challenge to 

this student code provision is therefore moot. Speech First 

disagrees. We review this question de novo. Federation of 

Advert. Indus. Reps., Inc. v. City of Chicago, 326 F.3d 924, 928-29 

(7th Cir. 2003).

“Voluntary cessation of the contested conduct makes litigation moot only if it is ‘absolutely clear that the allegedly 

wrongful behavior could not reasonably be expected to recur.’ Otherwise the defendant could resume the challenged 

conduct as soon as the suit was dismissed.” Elim Romanian 

Pentecostal Church, et al. v. Jay Robert Pritzker, 962 F.3d 341, 345
No. 19-2807 47

(7th Cir. 2020) (quoting Friends of the Earth, Inc. v. Laidlaw Env. 

Serv. (TOC), Inc., 528 U.S. 167, 189 (2000)). “The party asserting mootness bears a ‘heavy burden’ of persuading the court 

that there is no reasonable expectation that the challenged 

conduct will reappear in the future.” Pleasureland Museum, 

Inc. v. Beutter, 288 F.3d 988, 999 (7th Cir. 2002) (quoting Friends 

of the Earth, 528 U.S. at 189). 

The relative ease, timing, and manner by which the University amended the Student Code are all measures as to 

whether it meets this heavy burden. On none of these criteria 

has the University shown with absolute clarity that the prior 

approval rule has perished permanently.

It took only four days for the University’s conduct conference to repeal the challenged provision and for the chancellor 

to approve, moves that had an immediate effect. Such a repeal 

could be undone in the same time frame with the same ease. 

Because the University’s procedures are self-imposed, it remains unconstrained to reverse itself on the prior approval requirement. Indeed, the Student Code says it is “subject to 

change without notice,” and the code provides ways it can be 

amended differently than as amended here. The University 

has taken the position that the policies challenged in this case 

are “critical to the University’s functioning and achievement 

of its educational mission.” If that includes the prior approval 

code provision, such a continued position does not indicate 

permanent abandonment. See, e.g., Jager v. Douglas Cty. Sch. 

Dist., 862 F.2d 824, 833–34 (11th Cir.), cert. denied, 490 U.S. 1090 

(1989) (holding voluntary cessation of pregame prayer did not 

moot First Amendment challenge where elimination was not 

formal board policy). My colleagues in the majority conclude 

that the repeal and possibility of reenactment in such a short 
48 No. 19-2807

time frame is of no moment, but this court has considered the 

ease with which a contested government action has been repealed and can be replaced, see, e.g., Federation of Advertising 

Injury Representatives, Inc., 482 F.3d at 931 (considering municipality’s pattern of proposed and repealed ordinances, although concluding case was moot), as have other appellate 

courts. See Rosebrock v. Mathis, 745 F.3d 963, 972 (9th Cir. 2014) 

(considering whether policy change “could be easily abandoned or altered in the future”) (quoting Bell v. City of Boise, 

709 F.3d 890, 901 (9th Cir. 2013)).

When the University amended the Student Code also 

must be considered. The prior approval rule was withdrawn 

nearly two months into this litigation, and just before the University responded to the crucial preliminary injunction motion. My colleagues in the majority do not find this timing suspect. Yet a reasonable inference from when this repeal occurred is that the University decided the prior approval rule 

was constitutionally violative, so it was deleted from the Student Code. A concession in the University’s declarations that 

the prior approval rule is an impermissible prior restraint on 

political speech would evince that the University would not 

reenact it, as the admission in litigation of a constitutional violation is unlikely to be reconsidered. See Wis. Right to Life v. 

Schober, 366 F.3d 485, 487-88 (7th Cir. 2004) (recognizing voluntary cessation rendered case moot because state agency admitted challenged statute was unconstitutional). But the University makes no such admission. 7

7 In the district court the parties agreed to stay the defendants’ obligation to answer or otherwise respond to the complaint, so the defendants 
No. 19-2807 49

How the University voluntarily discontinued the challenged official action matters as well. Kirts declares the University “has no intention” to reverse field, a stance she characterizes as “definitive.” But more than a non-committal statement is required to persuade that the challenged provision 

will not resurface. See, e.g., People for the Ethical Treatment of 

Animals v. United States Dep’t of Agriculture and Animal and 

Plant Health Insp. Serv., 918 F.3d 151, 157-159 (D.C. Cir. 2019) 

(governmental department’s statement of intent to change 

lacked necessary precision to conclude that its voluntary cessation mooted the case). Neither Kirts nor the other University declarants promise that the University will not revisit this 

Student Code provision. Even if she did, the Kirts declaration 

does not bind the University. It reflects an intent arrived at 

weeks after this litigation ensued, and in the face of the preliminary injunction motion. The Supreme Court used the adverb “absolutely” to modify how clear it must be that the allegedly wrongful behavior could not be expected to recur. 

Friends of the Earth, Inc., 528 U.S. at 189. The University’s declarations fail to meet that heavy burden. 

The University contends § 2-407 will not be reinstated because it has never been enforced. Besides falling prey to the 

gambler’s fallacy (an inference about unknown future events 

based upon known past events), the only evidence of the prior 

approval rule’s history of enforcement is a single sentence in 

Kirts’s declaration, which is limited to her personal experience, not that of the entire University. The majority opinion’s 

have not responded to this claim other than in response to the preliminary 

injunction motion.
50 No. 19-2807

repeated statement that this provision has never been enforced misses the mark for the same reason. As the Sixth Circuit pointed out in Speech First, Inc. v. Schlissel, 939 F.3d at 766, 

“[t]he lack of discipline against students could just as well indicate that speech has already been chilled.” 

While the majority opinion is correct that “[c]ourts are 

more apt to trust public officials than private defendants to 

desist from future violations ... [t]he tendency to trust public 

officials is not complete, however, nor is it invoked automatically.” 13C CHARLES ALAN WRIGHT, ARTHUR R. MILLER &

EDWARD H. COOPER, FEDERAL PRACTICE & PROCEDURE § 3533.7

(3d ed. 2008). The manner in which an entity, public or private, voluntarily ceases is important. Speech First, Inc. v. Schlissel, 939 F.3d at 768 (taking into account “the totality of the circumstances surrounding the voluntary cessation, including 

the manner in which the cessation was executed.”). The discontinued official action here—the Student Code provision—

was not repealed by a legislature revising a state statute, see 

Matter of Bunker Ltd. Partnership, 820 F.2d 308, 312–13 (9th Cir. 

1987), or after compliance with a court order, see Spirit of the 

Sage Council v. Norton, 411 F.3d 225, 229–30 (D.C. Cir. 2005). It 

was not even a repealed municipal ordinance. See Federation, 

326 F.3d at 927; Pleasureland, 288 F.3d at 993. Instead, it was a 

provision in the University’s Student Code, defined as “a collection of rules, regulations, policies, and procedures that apply to, or otherwise directly impact, students at the University 

of Illinois at Urbana-Champaign.” Albeit on a greater scale, 

such a Student Code is in common with the decisions of a 

school board.

In that important respect, the mootness analysis of this 

court in two cases involving school districts provides some 
No. 19-2807 51

good guidance. First, in Freedom from Religion Found., Inc. v. 

Concord Comm. Sch., 885 F.3d 1038 (7th Cir. 2018), this court 

concluded that a school superintendent’s statements in an 

affidavit—that the school district would present an annual 

holiday program compliant with the First Amendment’s Establishment Clause—did not render moot claims challenging 

that program. Id. at 1050–53. That the superintendent was sincere was not enough to conclude the dispute was moot, as 

there was “no guarantee that a future superintendent would 

take the same stance.” Id. at 1052 (citing Boyd v. Adams, 513 

F.2d 83, 89 (7th Cir. 1975) (new decision-maker could “resurrect the old procedure in the future”)). In Concord this court 

contrasted the superintendent’s affidavit in that case with the 

voluntary cessation in Wis. Right to Life, Inc. v. Schober, 366 

F.3d at 487–88, 492. In Schober, a state agency sent a letter to 

the plaintiff stating that it would not enforce the challenged 

statute against plaintiff because it considered the statute to be 

unconstitutional; the state agency also posted online that the 

challenged statute was unconstitutional.

As the superintendent’s affidavit in Concord fell short of 

the commitments in Schober, so Kirts’s declaration falls short 

here. Had the University admitted the unconstitutionality of 

the provision and promised not to enforce it, like in Schober, it 

would have come closer to bearing its heavy burden. On the 

record before us, though, the University’s failure “to document in any way its decision to make the change permanent”

is enough to present a live controversy. Concord, 885 F.3d at 

1052. 

Second, in Doe ex rel. Doe v. Elmbrook Sch. Dist., 658 F.3d 

710 (7th Cir. 2011), vacated on grounds other than justiciability, 

687 F.3d 840, 842 (7th Cir. 2012) (en banc), this court held that 
52 No. 19-2807

a school district had failed to establish mootness because it 

did not adopt a formal policy prohibiting the use of churches 

for graduation. 658 F.3d at 720–21. The school district, therefore, had not met its burden of demonstrating with absolute 

clarity that it would not engage in First Amendment violative 

conduct. Id. The University’s failure to adopt a similar forward-looking, binding, and formal policy position should 

lead us to the same conclusion that the challenge to the prior 

approval rule is not moot.8

Even a state governor’s announcement of voluntary cessation has been deemed insufficient to meet the heavy burden 

to moot a case. Trinity Lutheran Church of Columbia, Inc. v. 

Comer, 137 S. Ct. 2012 (2017). That case involved a challenge 

to a Missouri agency’s policy of disqualifying religious organizations from grant funding. Though the governor had announced he had directed to the contrary, nothing prevented 

the state agency from reinstating its former policy, so the Supreme Court declined to find the controversy moot. Id. at 2019 

n.1. Kirts’s non-binding statement as a school administrator 

has less weight than a governor’s statement. A tougher case 

would be if the University’s governing body which exercises 

final authority—its board of trustees—issued some type of 

8 My colleagues in the majority conclude that these cases are distinguishable because these school boards made statements without adopting 

a formal policy, while the University amended its Student Code. But such 

an amendment does not address reversibility or the other important considerations of how an entity voluntarily ceases challenged conduct. Deleting a provision after litigation ensues is far weaker than longer-lasting 

constraints such as a concession of unconstitutionality or a binding promise. 
No. 19-2807 53

binding statute (formerly called bylaws), rendering permanent the repeal of the prior approval rule, but that did not 

happen here.

The majority opinion states that the Sixth Circuit in Schlissel applied a “more demanding standard” than our court, requiring not only a formal process to repeal but affirmative signals from the University that the repeal was genuine, which 

the majority opinion finds in Kirts’s declaration. In my view, 

the mootness analysis in Schlissel is highly similar to our evaluation here, as should be the result. The Sixth Circuit concluded that the University of Michigan’s ad hoc regulatory 

processes leading to changed definitions in its Student Code 

did not relieve the school of much of its reduced burden as a 

government entity to show the case is moot. Schlissel, 939 F.3d 

at 769. The timing of the University’s repeal—removing the 

definition after the complaint in the case was filed—raised 

suspicions that its cessation was not genuine. Id. Those same 

concerns are present here. The panel majority in Schlissel concluded that the claim challenging the definitions in the University of Michigan’s student code was not moot. Id. at 770.

For the same reasons, the mootness analysis I apply properly 

employs the standards of “heavy burden” and “absolutely 

clear,” which come directly from the Supreme Court in 

Friends of the Earth, Inc., 528 U.S. at 189. 

The circumstances of this case do not persuade me that the 

University has, as the law requires, carried its heavy burden 

to make it absolutely clear that the allegedly offending Student Code provision will not return. So I respectfully dissent 

from the conclusion that Speech First’s challenge of the prior 

approval rule is moot.
54 No. 19-2807

III. Conclusion

This case had a short life in the district court—from filing 

to order in less than four months, followed by this interlocutory appeal. And the evidentiary support submitted in that 

abbreviated period falls short, to the detriment of both sides.

I agree that, under the applicable law, the Neily declaration presents insufficient evidence of injury in fact, so associational standing has not been established, and the district 

court’s denial of the plaintiff’s motion for a preliminary injunction must be affirmed. In the Kirts declaration, the University did not bear its heavy burden to make it absolutely 

clear that the prior approval rule will not reasonably be expected to be reinstated, so I conclude Speech First’s challenge 

of that provision is not moot.

This case has been stayed in the district court pending this 

appeal. On remand, the district court can consider under the 

applicable rules and based on the parties’ arguments whether 

to allow amendment to the pleadings and discovery to develop the evidentiary record for the remainder of this case.9

9 The Sixth Circuit noted the same in Schlissel, 939 F.3d at 765 n.1.