Last March, ADF attorney Casey Mattox wrote a classic post predicting the winner of the NCAA Men’s Basketball Tournament based on the universities’ commitment to First Amendment rights.  While I generally dislike the truncated, hardly understandable language of texting, Casey’s post made me ROFL.  A lot.

               This year, Casey plus three other ADF attorneys have been tapped to make Sweet 16 predictions, and the East Region has fallen to me.  The East includes the following matchups:  (2) University of North Carolina v. (11) Marquette; and (1) Ohio State University v. (4) University of Kentucky.  The East thus contains the university most people (unless you are from Ohio) love to hate: THE Ohio State University; the university who employs the coach (John Calipari) most people love to hate: UK; a university nobody really knows much about, especially when it comes to its basketball pedigree: Marquette; and the team I love: UNC.

                This last point requires a little explanation.  You see, I came of age (in NCAA basketball terms) during the early 1990s, when the ACC ruled the men’s basketball roost.  Duke was led by the likes of Christian Laettner, Grant Hill, and Bobby Hurley; UNC built its dominance on the backs of Eric Montross, Hubert Davis, and George Lynch; and Georgia Tech was running and gunning with Dennis Scott, Brian Oliver, and Kenny Anderson, affectionately known as Lethal Weapon 3 (wow were they fun to watch).  During these heady days of ACC dominance, my allegiances fell (however inexplicably, since I was raised and lived in the Northeast) squarely at the feet of the UNC Tar Heels, and remain there to this day.  A necessary corollary of my love of UNC basketball is my severe distaste for all things Duke.  Duke’s back-to-back championships in the early 90s were daggers through my Tar Heel heart.

               Accordingly, I am an enormous fan of Casey’s rule that “Duke must lose” from last year’s post.  This is an eminently fair and sound rule.  In fact, Casey’s rules (set out below) are nearly perfect.  My only addition, that “UNC must win” (which is also reflected in a few other amendments to last year’s rules) was an oversight last year, surely caused by the fact that UNC did not make the NCAA field (ouch, that one hurt).  Thus, Casey’s amended rules (with my amendments in italics) are as follows:

1.  FIRE’s red/yellow/green light rating is an important factor.

2.  Prior and current First Amendment violations by a campus are negatives that can cause a school to lose to a school that only has bad policies on paper.  Practice trumps policy.  (Except for UNC)

3.  A university will not be excused for its past violations just because the policies have now been changed as a result of litigation.  (Except for UNC)

4.  Private universities get some leeway, but not a complete pass. 

5.  Duke must lose.

6.  I retain the authority to apply additional criteria as I choose and to apply the above criteria in any manner I wish.  One might say my discretion is unbridled.  Especially insofar as is necessary to give effect to rule 5 and rule 7.

7.  UNC must win.

               Now let’s turn to applying these rules to the East Region games:

(2) University of North Carolina v. (11) Marquette

               Okay, so Rule No. 7 pretty much decides this one.  UNC wins.  But let’s dig deeper.  Marquette is a private university that is a FIRE red light school.  Its harassment policy (which is primarily responsible for its red light status) bans “verbal, written or physical conduct directed at a person or a group based on color, race, national origin, ethnicity, gender or sexual orientation where the offensive behavior is intimidating, hostile or demeaning, or which could or does result in mental, emotional or physical discomfort, embarrassment, ridicule or harm.”  Wow, if Marquette was a public university this speech code would be ripe for (successful) constitutional litigation. 

               UNC is a FIRE yellow light school.  So they are already fairing better than Marquette.  ADF did sue UNC-Chapel Hill because it derecognized a Christian fraternity based on the group’s requirement that its members be professing Christians, claiming that this requirement violated UNC’s nondiscrimination policy.  However, after ADF filed suit and prevailed on a prelimimary injunction motion, UNC granted the group recognition and changed its policy.  While these past First Amendment dalliances may doom another institution, Rule No. 7, the UNC exemptions built into Rules 2 and 3, and my discretion under Rule no. 6, keep UNC in the clear. 

               Pick: UNC

(1) Ohio State University v. (4) University of Kentucky

               This is an easy pick.  First, THE Ohio State University is a FIRE red light school, while UK gets a yellow light

               Second, THE Ohio State University is flirting with enacting an “all-comers” policy for student groups seeking recognition, which would require these groups to open their membership to all students, regardless of the students’ beliefs and views.  Such a policy is political correctness run amok, would cancel every student groups’ right to limit members to those who agree with their purpose, mission, and views (an essential First Amendment liberty), and would undoubtedly have the greatest impact on religious student groups.  While the Supreme Court recently (and unfortunately) upheld an “all-comers” policy in Christian Legal Society v. Martinez, this does not mean that universities should adopt such policies.  They are the antithesis of the freedom of thought, belief, and expression that is supposed to be the defining characteristic of public university campuses.  THE Ohio State University’s mere flirting with the idea of adopting such a policy means I would have picked them to lose in the first round to the University of Texas at San Antonio.

               Pick:  University of Kentucky

               My pick to come out of the East Region?  Big surprise, its UNC.

               Yes, I realize the rules are unfairly tipped in favor of UNC.  But as I wrote this post, I just could not get my heart out of these predictions.  Lucky for me, there was just enough bad for the other schools, and good for UNC, to allow me to wield my discretion under Rule No. 5 to pick UNC to win the East Region.  Go Tar Heels!  (And revise your policies to get into the rarified air of a FIRE green light school, so next year I can pick you without resort to exemptions and/or discretion)!

            Check out the Sweet Sixteen of Liberty: Southeast Region

            Check out the Sweet Sixteen of Liberty: Southwest Region