### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 19

- 2807
S PEECH F IRST , I NC

. , P laintiff

- Appellant ,

v.

T HOMAS L. K ILLEEN , et al

. , Defendants

- Appellee s

.

____________________ Appeal from the United States District Court for the Central District of Illinois

. No. 3:19

- cv

- 03142

- CSB

- EIL

— Colin S. Bruce , Judge

.

____________________
A RGUED F EBRUARY 27 , 2020

— D ECIDED J ULY 28, 2020

____________________

Before B RENNAN , S CUDDER , and S T

. E VE , Circuit Judges

. S T

. E VE , 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 college s and universities, and limiting the expression of ideas would undermine the very learning environment that is2 No. 19

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central to higher education.” Erwin Chemerinsky & Howard Gillman, Free Speech on Campus x ( Yale Univ. Press 2017). Speech First

— a national advocacy organization dedicatedto promoting the exercise of free speech on college campuses

— alleges that three dist inct policies at the University of Illinois at Urbana

- Champaign (“the University”) threaten these ideals and impermissibly chill the speech of stude nt members of its organization. It seeks a preliminary injunction to put a halt to these policies.

W hen a p arty 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 therefo re 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 student s

. The se students claim that they wish to express what they describe as “pol itical, social, and policy views that are unpopular on campus.” Speech First’ s c omplaint 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

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Speech First allege s that three University policies

— the respons ive 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 the se 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, BAR T defines “bias

- motivated incidents” as “actions or expressions that are motivated, at least in part, byprejudice against or hostility toward a person (or group) because of the person’s (or group’s) actual or perceived age, disability/ability status, ethn icity, 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 student4 No. 19

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union ; and the University Po lice 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 r eporter 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, whe re a Co

- Chair will call the f acilities department to erase it. For those incidents that do not allow for as straightforward of a resolution
, BART members discuss report s at a bi

- weekly meeting an d 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 couldinclude “[e]ducational conversations,” “[m]ediation, facilitated di alogue,” “[e]ducational referrals,” “[r]esolutionagreements,” 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 t he 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 e ither do not respond or decline to meet. Students who decline suffer no consequences. If a student agrees to meet, BART staff explains to the studentthat her conduct drew attention and gives the student an opportunity to reflect upon her behavior and its impact on otherNo. 19

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students

. BART can not require students to change their behavior and does not have authority to issue sanction s if they decline to do so. Justin Brown, Director of OSCR and a former C hair 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 personallyidentifiable information removed from its data and descriptions. E xamples of these descriptions , in their complete form, inc lude:

• “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 a n RSO posted on Facebook that they were going to hold an ‘Affi rmative 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.” Janu ary 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 beha vior

— is entirely voluntary.”6 No. 19

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E xpressing 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 opi nions , ” 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 represent s that reports made to BART “are not ‘referred’ from BART to theUniversity 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, t he re 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

. ” Ne ily 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 discussion s “ with Speech First members and other students who attend and have attended the University”

— Students A, B, C, and D. Neily e xplains 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 toNo. 19

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speak with the student to discuss the allegations. TheBART official will not identify the person who has accused th e student of “bias” or inform the student of any rights he or she may have. In addition, Neily assert s 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 studen t’s permanent record” and “will make this information available to others outside of the BART.” Neily reports tha t 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 incidentscommitted 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 cour se 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 U niversity 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 have8 No. 19

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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. E xpression 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

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

B

. No Contact DirectivesPursuant to the University’s Student Disciplinary Procedures, University disciplinary officers may direct an individual subject to studen t discipline to have no contact with one or more other persons through what the University calls “No Contact Directives” ( “ NCD s ” ). S tudents subject to NCD s 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 inti midate a protected party .” Although NCDs do not require students to maintain a specific physical distance from one another , the University a dvises the parti es to leave the vicinity if the other party appears. NCDs do not , on their own, constitute a disciplinary finding against student s and are not part of the students’ official disciplinary record s

. Although a n NCD prohibits a student from con tacting another student , it does not prohibit the student from talking or writing about the othe r , either private ly or public ly . The Student DisciplinaryNo. 19

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Procedures recommend dismissal from the University for students who violate NCDs. Section 4.06(a) of t he Student Disciplinary Procedures outlines the authority of the University to impose NCDs, statingthat “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 r ecipients in writing, typically by email.”
Brown describe s 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 int o 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

— approx imately 11% of

cases

— involved no pending investigation or an informal Title IX complaint. These directives were issued when a severe, prolonged, and/or escalating conflictbetween students suggested that a violation of the Student Code, and in some cases p hysical violence, was likely in the near future.10 No. 19

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Similarly, Rony Die, Associate Director of OSCR, representsthat the University only imposes NCDs in response to violations of the Student Code or to prevent potential violations. Both Brown and Die assert t hat no students have ever been subject to NCDs for expression alone. To rebut the University’s contentions, Speech First points to an NCD i mposed between students Tariq Kahn and Andrew Minik after Minik published an article about Khan attacking two student s 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 Kh an,” but that Diemerely “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 materi als” about candidates for

non

- campus elections without “prior approval.” The University Student Disciplin ary Procedure s explain that a studentwho violates the Student Code faces disciplinary action, including reprimand, censure, probation, suspension, andNo. 19

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

. T he 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 thi s 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, t he 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 threeaforementioned policies and seeking declaratory and injunctive relief. Speech First quickly moved for a preliminary injunction to enjoin the University from enforcing the prior approval req uirement ; using the BART and BIP processes to “investigate, log, threaten, or punish students (including informal punishments) for bias

- motivated incidents” ; and issuingNCDs “without clear, objective procedures ensuring the directives are issued consisten t with the First Amendment.” In support of its motion, Speech First offered a three

- page12 No. 19

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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 a ny student member, even pseudo nymously

. 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 , t he district court described the declaration Speech First submitted fromNeily as “a conclusory statement based on its national association’s president’s ‘familiarity with’ anonymous students, ” t o 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 U niversity staffthat 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 pr ior 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

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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 ha ve an objective chill ing effect o n 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

. Cour thouse 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 Gr p. , Inc. , 237 F.3d 891, 895 (7th Cir. 2001)). If the plaintiff is likely to win on the merit s , 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. Courtho use 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)). W e review the district court’s legal conclusions de novo and findings of fact for14 No. 19

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clear error. Valencia v. City of Springfield , 883 F.3d 959, 96 6 (7th Cir. 2018). Absent such errors, we a fford 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 Wil dlife 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 Ci r. 2016). To establish standing under Article III of the Constitution , a plaintiff must show (1) an “i njury in fact
, ” (2) that the challenged conduct caused the injury, and (3) some likelihood that a decision in his favor will re medy 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 t o the organization’s purpose ” ; and (c) “ neitherthe 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 we re 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

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For an injury to satisfy Article III standing requirements, it must be “ concrete and particularized ” and “a ctual 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 challeng e 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 en gage in a course of conduct arguably affected by a policy, and that he face s a credible threat the policy will be enforced against him when he do es

. Am

. Civil Liberties Union of Ill. v. Alvarez , 679 F.3d 583, 59 0

– 9 1 (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

. ”))

. F or 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 chillin g 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 theFourth 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 eng ages in the speech in question, n or16 No. 19

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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. R ather, Speech First a sserts that the University’s policies chill the students ’ speech because the students fear the University will investigate or punish them under these policies.

1. B ART and BIP We first turn to whether Speech First has established the injury in fact requirement concerning its claims against BART and BIP , namely, w hether 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 findingsof 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 w ith 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 )

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(1985))

. The district court made several factual findings about BART in particular, and Speech F irst 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 d id 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 “ b eing 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 havenot 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

u niversity’s harassment policy, arguing that it wa s unconstitutionally vague and overbroad. Id. The Fourth Circuit concluded that, because plaintiffs failed to identify any spe ech event they planned or wished to sponsor in the future , they had not demonstrated that that the defendants “ deterred18 No. 19

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some specific intended act of expression protected by the First Amendment.” Id. at 171. Similarly, here, Speech First has failed to iden tify 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 BA RT 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 voluntar y .” 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 districtcourt’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 student s

. If students’ perception of reality on campus is different from the picture the University describe s, 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 de clin ing that invitation , and has self

- censored because of those fear s

. 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). Furt hermore , the fact that a majority of students actually decline a meeting supports the conclusion that students do not feel compelled to meet

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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 proble ms 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 inappropri ate 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. Th e notices , the Court determined, were really “thinly veiled threats.” Id. Here, the district court found no such threat s ; rather, the court concluded invitations to meet with BART staff are “voluntary” and result in “essentially no consequences.”
Abbott pr ovides useful guidance on this point, as well. There , t he Fourth Circuit held that the prospect of facing a mandatory meeting and subsequent investigation was insufficient to make a showing of standing. The c ourt even acknowledged, “[W]e do not doubt that a college student reasonably might be alarmed and thus deterred by an official letter froma 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 c ourt nevertheless concluded, [A] threatened administrative inquiry will not betreated as an ongoing First Amendment inquiry sufficient to confer standing unl ess the administrative20 No. 19

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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 self

censorship 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. ... BARThas 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 discip linary 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 P olice. But again, as the district court found, “[b]ias

motivated 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 P olice.
As Speech First does no t dispute that BART lacks disciplinary authority , it cites Backpage.com, LLC v. Dart , 807 F.3d 229 (7th Cir. 2015), for the proposition that t he University can chill speech without threatening an investigation or prosecution,No. 19

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and even without “ authority to take any official action.” Id. at 236

. But Backpage is readily distinguishable. In that case, CookCounty Sheriff Thomas J. Dart sent a letter on his official letterhead to credit card companies, stating, “As the Sheriff of Cook County, a fath er and a caring citizen, I write to requestthat 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.c om had “become increasingly indefensible,” a nd 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

. ” I d. at 232. He included a citation to the federal money

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

co uld “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 ... an d/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 TraffickingCompels 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 SheriffDart’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 companies22 No. 19

- 2807

with an investigation or prosecution, a letter on official letterhead demandin g 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 st udents 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)

. “W hat matters is thedistinction between attempts to convince and attempts to coerce.” Id. Wh er e as Sheriff Dart’s letter was an “attempt to coerce,” the University’s actions are, at worst , an “atte mpt 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 consequence s 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 P olice. These two incidents include:

• “ Team members participated in reporting [an offens ive] 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

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As a preliminary matter, Speech First failed to raise these incidents before the district court

. “It is the parties ’ responsibility to allege facts and ‘ ind icate 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 th is argument

. But even if Speech First had raised these facts before the district court, they do not demonstrate that Speech First hasstanding to challenge BART. First, Speech First did not present evidence to the district court that BART would refer a student to University P olice on the basis of speech independent of a violation of the Student Code or because a student declined to respon d to BART outreach

. BART, like any member of the University community, could report a potential St udent Code violation to OSCR or the P olice without infringing

o n any student’s right to free speech. And if BART does make a referral to University P olice in appropriate circumstances, Speech First has not demonstrated that BART has any power to punish: th at determination is left to OSCR or the P olice. A ccordingly, 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 ma de 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 an24 No. 19

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email to the BART email address does not prevent BART from shar ing 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 equiv alent of BART

— what the c ourt called the Response Team

— along with otherpolicies. 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 7 65. 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 stud ent 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 fa ilure 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

— th e 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 orNo. 19

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disciplin ary records, and not disclosed outside of OSCR without permission.” Neily’s declaration purports to contradict this point , stating that BART lists details of reported incident s on students ’ permanent record s and make s this information publicly available

. N eily’s declaration also cites a third

- hand statement from a n 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 th ese assertion s for good reason: the a nnual r eports BART issues to the public

— the only examples of BART reporting in the record

— are completely anonymized wi th 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 fear s the possible publication of student speech in these annual repor ts or that potential publication led to any self

censorship. 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 ha s met its burden to demonstrate t hat 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 three

page, bareboned declaration from someone lacking first

- handknowledge 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 tangi ble the sharp contrast in the level of detail and supporting facts between the two submissions. We do26 No. 19

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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 ha ve 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. N CDs Speech First similarly fails to demonstrate standing to seeka preliminary injunction against the University’s policy of issuing NCDs. S peech First argues that its student members self

- censor because they fear the University will issue NCD s in response to their speech

. It contends that § 4.06(d) of theStudent 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 the ir 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 histor y of

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

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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 thi s 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 distri ct court explicitly found that other severe conduct, culminating in death threats, actually prompted the NCD in this instance. Nor c ould this example lead a student to reasonabl y believe that his or her protected speech would violate an NCD if the student w ere subject to

one

— Minik explicitly admitted otherwise. Indeed, t he uncontested statistics the University provided about the reasons for imposing NCDs demonstrate that the majo rity of NCDs arise as a result of a violation of the Student Code

— which, again, does not prohibit protected speech . O thers result from complaints of sexual misconduct or from an extended and intensifying conflict between students, where the University fear ed 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 i mposed

. 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 hi m. Speech First therefore has failed to demonstrate a credible threat of any enforcement action to justi fy the students’ purported self

- censorship.28 No. 19

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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. Re presentatives, 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’sprospective injury has been removed, and there is no ‘effectual relief whatev er’ 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))

. W e review the question of whether a n issue has been rendered moot de novo

. Federation , 326 F.3d at 928

– 29. As a general rule, i n 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 9 29 ( quoting United States v. W.T. Grant Co. , 345 U.S. 629, 632

– 33 (1953) )

. Indeed, a case will becom e moot only if it is “ absolutely clear that the allegedlywrongful 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)). B ut “[w]hen the defendants are public officials ... we place greater stock in their acts of self

-No. 19

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correction, so long as they appear genuine.” Federation , 326 F.3d at 9 29 ( quoting Magnuson v. City of Hickory Hills , 933 F.2d 562, 565 (7th Cir. 1991) ); Freedom f rom Religion Found

. , Inc. v. Concord Com ty. Schs

. , 885 F.3d 1038, 1051 (7th Cir. 2018) (“A defendant’s voluntary cessation of challenged conduct doesnot necessarily render a case moot. ... But if a government actor sincerely self

- corrects the practice at is sue, 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 dism issed the case

— something we ordinarily do not presume.” Federation , 326 F.3d at 9 29

. “ [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 [Univ ersity] will reenact the [policy] or one substantially similar.” Id. at 93 0

. “O nly 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 casewas 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. a t 289 & n.11. Similarly, in United States v. Sanchez

- Gomez , 138 S. Ct. 1532 (2018), the C ourt 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 l onger 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 press30 No. 19

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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 a n 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 eviden ce in the record indicating the University ever enforced the policy. With it no longer in effect , n o current student can suffer a ny harm from it

. Furthermore, through Kirt s ’s sworn affidavit, the University affirmatively represented to the district court a nd to this C ourt that it does not intend to reenact the provision. And t he 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 assertion s to the contrary , our precedent does not require not ice

- 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 t hat promote religious beliefs was insufficient to moot a casewhere 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. T he factual scenario in Doe ex rel. Doe v. Elmbrook Sch. Dist. , 658 F.3d 710 (7th Cir.No. 19

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2011), vacat ing the original panel’s opinion but adopting its justiciability analysis , 687 F.3d 840, 842 (7th Cir. 2012) (en banc), is nearly identic al. 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 ch urches 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 S tudent Code.
The Sixth Circuit in Schlissel applied a more stringent testto determine mootness than the one our own precedent demands : it r equir ed 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 Universit y of Michigan modified these definition s 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 no t do much morethan 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 defin itions

. ” Id. at 76 9

. The University of Illinois made exactly th is 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 to32 No. 19

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defend the constitutionality of the definition s 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 now

repealed § 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 add s several requirements that draw no support fromSupreme Court or our own precedent. We have never demanded, nor did the Sixt h Circuit require, a concession that a rule is unconstitutional. In addition, w hile the Sixth Circuit did find relevant the lack of an affirmative statement that the

u niversity did “not intend to reenact the challenged” policy, it did not require a binding promise that the u niversity will never revisit it. Id. at 76 9

. 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 cou ld 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 possibili ty that the University could decide to revisit the policy at some remote point inNo. 19

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the future without any evidence of an intention to do so

— i s 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 th e 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.3 4 No. 19

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B RENNAN , Circuit Judge , concurring in part and dissenting in part. For several years universities have engaged in heightened effort s to supervise speech on their campuses. Th e se steps can collide with the First Amendment ’s free speech protections , especially of political speech. At issue in this case are
t he University of Illinois’s policies to monitor speech on campus and in residence halls, a s well as the prohibition in its S tudent C ode on distributing election literature on campus

. I concur with the majority opinion that , on this record , Speech First offered in sufficient evidence of injury in fact to qualify for associational standing. I do not conclude that the challenge to the S tudent C ode 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 associatio n’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 est ablish 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 ofNo. 19

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Wildlife , 504 U.S. 555, 560 (1992). W hether 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 t he Supreme Court explained in detail the particularization and concretenes s 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 ex ist.” Id . “[I]ntangible injuries can nevertheless be concrete

. ” I d . (citations to First Amendment challenges omitted)

. The Court has “made itclear time and again that an injury in fact must be both concrete and particularized.” Id . (citing inter alia Susa n B. Anthony List v. Driehaus (SBA List) , 573 U.S. 149, 158 (2014) )

. F ine r 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 a lso 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

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As the majority opinion points out, t o e stablish 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 pro scribed 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 secon d,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).

T his court has elaborated on these showings in deciding other pre

- enforcem ent 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 , contend ing 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 th e harm of self

- censorship without prosecution. Madigan , 697 F.3d at 47 3

– 7 4 (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 47 4 ( 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

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ure

- to

- disperse provision in Chicago’s disorderly conduct ordinance was vague and overbroad

. C hilled speech was recognized a s an injury that can support standing, but a plaintiff’s subjective fear of chilling wa s 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 effe ct on his protected speech or expressive conduct to pursue prospective relief.” Id. at 454 ( conclud ing the plaintiff had successfully alleged a chilling injury and enjoyed standing to sue for injunctive relief and to facially challenge the ordinance )

. Belo w 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 opin ion 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 o f these findings. O ther finding s

— 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 bia s assessment response team

— I see as closer calls, and their resolution38 No. 19

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a function of the sparse evidence Speech First presented

. Because there was no evidentiary hearing, 2 t h ose 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 p laintiffs complained about “ the mere existence

... of a governmental investigative and data

- gathering activity ,” and nothing more. Id . at 10. The Cour t 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, pros criptions , or compulsions ” being challeng ed , id . at 11, a threshold they did not meet. While governmental action with only an indirect effect on First Amendment rights may be subject to constitutional challenge, plaintiff s 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

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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)) ; s ee also Socialist Workers Party v. Att’y Gen. of U.S. , 419 U.S. 1314, 1319 (1974) (Marshall, J., sitting as C ircuit J ustice) (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 woul d be substantially harmed, his reputation would be adversely affected, and he risked injury as a result of the films being classifi ed 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
t he statements in the Neily declaration lack the required specificity

— including the particularity and concreteness

— to meet this evidentiary threshold

. Alt hough 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

- censor ship . T he Neily declaration st ates that students A

– D credibly fear the University’ s bias assessment response40 No. 19

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initiative and its consequences, and th at the only way for them to avoid it is to engage in self

- censorship. But th ose two conclusory sentences in th at declaration offer no evid ence of any of these students self

- censor ing their speech to avoid the initiatives

. For example, t he students did not file anonymous affidavits setting forth what they would have said, when, where, and to whom

. As explained in Laird , s tudents 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. a t 11. R ather than the detailed and unrebutted affidavits the plaintiff submitted in Meese , the students here a v e rr ed a subjective chill without more.
Yet e ven i f students A

– D had sufficiently established an objectively reasonable fear, under Bell they mus t 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, n o evidence has been presented of such effects on students A

– D

. To show that injuries “actually existed” plaintiffs
must assert m ore than a mere conclusi on that their speech has been chilled

. Referrals for Punishment or Discipline . The Neily declaration does not aver that any of the four students list ed have been punished or disciplined , or threatened with punishment or discipline , and the record does not reveal any student s being investigated or punish ed 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 th at avermentNo. 19

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with students A

– D, again failing the particularity and concreteness requirements.
I n contrast are the more specific declarations from January Boten, A ssistant D ean of S tudents in the Office for Student Conflict Resolution
, a nd Justin Brown, A ssociate D ean of S tudents and D irector of the O ffice for S tudent C onflict Resolution

. T hey describe how the bias assessment response team does not make referrals to the police or the studen t disciplinary process unless the speech or conduct also violates the S tudent C ode. Identification /Anonymity

. Four students i n 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 response s . The year

- end report includes th e se topics, but according to the University the report does not identify the se (or other) students as having been approached to discuss alleged bias incidents or being given correctiv e 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. A long 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 with42 No. 19

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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

c onnection 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, t he declaration does not show that these four Speech First members have an objectively re asonable, actual, and well

- founded fear thatthey will be identified, or that their anonymity will be compromised , by the year

- end report

. No

- Contact Directives . T he Neily declaration presents no evidence that the University issu ed a no contact order again st students A

– D or issu ed such an order o n the topics the se students would like to discuss

. Bias Incident Protocol . A s 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. T he 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 ass essment 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. T he eviden ce presented a t this stage does not support the conclusion that students A

– D had actual and well

- founded fears that the U niversity policies will be enforced againstNo. 19

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them, and that those four students have had a concrete and particularized chilling effect on their protected speech, despite t h e modest evidentiary threshold.
This conclusion

— given the legal subject matter, the policies in dispute, and the arguments offer ed

— is not uncomplicated. Speech First contends in its briefs that the University ’s bias assessment response policies chill stud ents ’ 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 reputationaldamage suffered by “offenders” even when the speech investigated is protected. The University also labels its students “offe nders” 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 ex hibition of films classified as political propaganda would adversely affect his reputation). Because reputational damagecan impair a student’s prospects for academic and professional success, objectively reasonable students may be expected to behave in wa ys 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., Br ief of Amicus Curiae Southeastern Legal Foundation in Support of Plaintiff

- Appellant and Reversal , pp. 1

- 5 , ECF No. 1 8

.44 No. 19

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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 interfere s with a ny listener’s subjective beliefs.

W hile such consequences could conceivably constitute particular and concrete threats of harm chill ing 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 t he eviden ce

. For example, the dispute and subse quent no

- contact directive between Khan and Minik is ar gued in the briefs, but absent from the evidentiary record. The bar is not being set too high here , as specific f acts in affidavits are essential

. 5
Th is conclusion is also difficult to reconcile with t he 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 M ichigan’s bias response team initiative. 6 The Neily dec laration 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

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noted that the University of Michigan and the University of Illinois have “ similar university bias response policies. ” Still, on th is record, Speech First has not met the standing requirements for this First Amendment pre

- enforcement challenge for the reason s 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). B efore a court may exercise its auth ority to limit government power, the justiciability rules and requirements must be followed

. As the Court s tated 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 Sc alia, The Doctrine of Standing as an Essential Element of the Separation of Powers , 17 S UFFOLK U NIV

. L. R EV

. 881, 894

- 97 (1983). A t this stage of this litigation specific facts establishing standing have not been presented.
II. Mootness of Prior Approval R ule
S tudent C ode § 2

- 407 prohibited , without prior approval , the posting and distribution of handout materials that promoted candidates for non

- campus elections

. S tudent s who violated th e provision w ere subject to disciplin e

.

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

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Speech First challeng es this prohibition as an impermissible prior restraint on political speech violati ng the First Amendment

. Its complaint alleges t he 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 challenge s this code provision as chillin g protected speech and forcing students who do not wish to comply with this requirement to engage in self

- censorship.
S even weeks after this lawsuit was filed

— and four days before the University responded to the preliminary injunction motion

— the Universit y amended the S tudent C ode to repeal th e prior approval rule , as described in the majority opinion

. T he University’s A ssociate D ean of S tudents, 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 pre

approval requirement for non

- campus election materials is definitive.” T he University argues Speech First’s challenge to this student code provision i s 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 allegedlywrongful 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 Pritzk er , 962 F.3d 341 , 345No. 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 tha t 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 me e t s this heavy burden. On none of these criteria has the University shown with absolute clarity that the prior approval rule has perished permanently.
I t took only four days for t he 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 se lf

- 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 perm anent 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 boar d policy). My colleagues i n the majority conclude that the repeal and possibility of reenactment in such a short48 No. 19

- 2807

time frame is of no moment, but this court ha s considered theease with which a contested government action has been repealed and can be replac ed , s ee, 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. 2 0 14) ( 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 withdrawnnearly 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 conce ssion in the University’s declarations that the prior approval rule is an impermissible prior restraint on political speech would evince that the University would notreenact it, as the admission in litigation of a constitutional violation is unlikely to b e 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 t he University make s 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 defendantsNo. 19

- 2807 49

How the University voluntarily discontinued the challenged official action matters as well

. Kirts declares the U niversity “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 re surface

. 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 depart ment’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 declaration s 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 i s a single sentence inKirts’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 publicofficials is not complete, however, nor is it invoked automatically.” 13C C HARLES A LAN W RIGHT , A RTHUR R. M ILLER & E DWARD H. C OOPER , F EDERAL P RACTICE & P ROCEDURE § 35 33

. 7 (3d ed. 2008 ). The m anner in which an entity , public or private , voluntarily ceases is important. Speech First, Inc. v. S chlissel , 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 S tudent C ode 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 , s ee Spirit of the Sage Council v. Norton , 411 F.3d 225, 229

– 30 (D.C. Cir. 2005). It was not even a repealed muni cipal ordinance. See Federation , 326 F.3d at 927; Pleasureland , 288 F.3d at 993

. Instead, it was a provision in the U niversity ’s S tudent C ode, defined as “a collection of rules, regulations, policies, and procedures that apply to, or otherwise directly imp act, students at the University of Illinois at Urbana

- Champaign.” Albeit on a greater scale,

s uch a S tudent C ode 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 someNo. 19

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good guidance. First, i n 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 distri ct 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, a s 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”)). I n 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 ag ainst 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

wo uld have come closer to bearing its heavy burden. On the

rec ord before us, though, the University’s failure “to document in any way its decision to make the change permanent” i s 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 that52 No. 19

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a school district had failed to establish mootness because it did not adopt a formal policy prohibiting the use of churches for graduat ion

. 658 F.3d at 720

– 21. The school district, therefore, ha d not met its burden of demonstrat ing 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 heav y 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 preventedthe 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 th an 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 suchan amendment does not address reversibility or the other important considerations of how a n entity voluntarily ceases challenged conduct. Deleting a provision after litigation ensues is far weaker than longer

- lastingconstraints such as a concession of unconstitutionality or a binding promise.No. 19

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binding statute (formerly called bylaws) , rendering permanent the repeal of the prior approval r ule , 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 re gulatory 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 d efinition 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 Mi chigan’s student code was not moot. Id . at 770. For the same reasons , the mootness analysis I apply properly employs t he 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

. T he circumstances of this case do not persuade me that the University has, as the law requires, carried its heavy burdento 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

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III. Conclusion

T his case had a short life in the district court

— from filing
to order in less than four months, followed by this interlocutory appeal. And t he evi dentiary 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 i nsufficient evidence of injury in fact, so associational standing has not been established, and the districtcourt’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 ap proval 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 p leading s and discovery to develop the evidentiary record for the remainder of this case

. 9

9 The Sixth Circuit noted the same i n Schlissel , 9 39 F.3d at 765 n.1.