SECOND DIVISION September 19, 2006
No. 1-06-0290
ILLINOIS NATIVE AMERICAN BAR ) Appeal from the ASSOCIATION (INABA), an Illinois ) Circuit Court of Non-for-Profit Corporation, STEPHEN ) Cook County. NARANJO, a University of Illinois ) at Chicago student; ROGER FONTANA, ) a Champaign resident; BESS VAN ASSELT, ) a University of Illinois at Champaign ) Urbana student; JOHN LOW, an enrolled ) Potawatomi; and TOM CAFCAS, a ) University of Illinois at Champaign- ) Urbana student, ) ) Plaintiffs-Appellants, ) ) v. ) ) THE UNIVERSITY OF ILLINOIS BY ITS ) BOARD OF TRUSTEES and TRUSTEES DAVID ) DORRIS, KENNETH D. SCHMIDT, FRANCES ) G. CARROLL, LAWRENCE C. EPPLEY, ) MARJORIE E. SODERMANN, ROBERT F. ) VICKREY, DEVON C. BRUCE, NIRANJAN S. ) SHAH, ROBERT Y. SPERLING, NATALIE A. ) GARCIA, ANDREW M. HOLLINGSEAD, and ) MATTHEW T. DILLER, in their official ) Honorable capacity, ) David R. ) Donnersberger, Defendants-Appellees. ) Judge Presiding.
PRESIDING JUSTICE WOLFSON delivered the opinion of the
court:
At some point during the halftime of University of Illinois football games Chief
Illiniwek performs a certain dance. The plaintiffs filed a lawsuit against the University,
contending the performance violates the Illinois Civil Rights Act of 2003. They ask for a
declaratory judgment, damages, and an injunction ordering a stop to the performance 1-06-0290
and barring any University use of Chief Illiniwek, whom the plaintiffs refer to as a "sports
mascot," while the defendants describe him as a "symbol."
Defendants filed a motion to dismiss, contending the Illinois legislature
specifically approved the University=s continued use of the Chief when it passed a 1996
amendment to the University of Illinois Act declaring Chief Illiniwek an "honored symbol"
of the University. Plaintiffs contend the Illinois Civil Rights Act cannot be reconciled with
the 1996 statute, and, they say, the Civil Rights Act controls.
The trial court found no conflict between the two statutes. It dismissed plaintiffs=
complaint. It did not address the question of whether discrimination occurred. We
affirm the trial court.
FACTS
The first Chief Illiniwek performance took place during halftime of an Illinois-
Pennsylvania football game in 1926. B. Crowley, Resolving the Chief Illiniwek Debate:
Navigating the Gray Area Between Courts of Law and the Court of Public Opinion, 2
DePaul J. Sports L. & Contemp. Probs. 28, 32 (2004). Chief Illiniwek performs a type of
"fancy dancing," which employs a double step, intricate footwork, and spinning
movements. 2 DePaul J. Sports Law at 32. It is a considerably faster style of dance
than traditional Indian dances. 2 DePaul J. Sports Law at 32. The dance is part of a
performance known as the "Three in One," consisting of three songs. 2 DePaul J.
Sports Law at 32.
"The first is called >Pride of the Illini= and is performed while
the Marching Illini band marches toward the north end zone
2 1-06-0290
in an >I= formation. This song carries a traditional marching
beat. Chief Illiniwek then weaves his way through the band
and emerges at midfield as the band spreads out into an >I-L-
L-I-N-I= formation and performs his dance to the tune of the
second song, >March of the Illini,= which carries a tom-tom
beat. At the conclusion of the dance, the Chief stands at
midfield with his arms folded across his chest as the fans
sing >Hail to the Orange,= the university alma mater. At the
conclusion of >Hail to the Orange,= Chief Illiniwek exits the
field with the band as >March of the Illini= is being played." 2
DePaul J. Sports Law at FN 18.
Plaintiffs= "Amended Complaint for Declaratory and Injunctive Relief as to the
Sports Mascot Chief Illiniwek" was brought under the Illinois Civil Rights Act of 2003.
Pursuant to the Act, a unit of state, county, or local government in Illinois may not:
"(1) exclude a person from participation in, deny a person
the benefits of, or subject a person to discrimination under
any program or activity on the grounds of that person=s race,
color, or national origin; or
(2) utilize criteria or methods of administration that have the
effect of subjecting individuals to discrimination because of
their race, color, or national origin.
(b) Any party aggrieved by conduct that violates subsection
3 1-06-0290
(a) may bring a civil lawsuit, in a federal district court or State
circuit court, against the offending unit of government. Any
State claim brought in federal district court shall be a
supplemental claim to a federal claim***" 740 ILCS 23/5(a)
(2004).
Seven years earlier, the General Assembly enacted section 1f of the University of
Illinois Act, which provides:
"Consistent with a long-standing, proud tradition, the General
Assembly hereby declares that Chief Illiniwek is, and may
remain, the honored symbol of a great university, the
University of Illinois at Urbana-Champaign." 110 ILCS
305/1f (West 1996).
The plaintiffs allege the members of the Illinois Native American Bar Association
(INABA) "suffer personally and professionally from the racist policy of the University in
allowing the use of Chief Illiniwek as a sports mascot."
They allege plaintiffs Stephen Naranjo, a Santa Pueblo, New Mexican Indian
enrolled at the University of Illinois at Chicago, and Roger Fontana, a Cherokee
descendant and a resident of Champaign, Illinois, feel "humiliated, embarrassed and
discriminated against when [their] heritage is reduced to a half-time sporting event
entertainment by Chief Illiniwek performances" and feel "that the image of Chief Illiniwek
is inaccurate and demeans their culture and race."
Bess Van Asselt, a student at the University, "has been harassed and humiliated
4 1-06-0290
by persons that support the perpetuation of Chief Illiniwek as a sports mascot ***,"
causing her to feel isolated and alienated within her dorm to the degree that she
withdrew from her residential contract and moved.
John Low, a member of the Potawatomi Tribe and a student at the University of
Michigan, decided to study at Michigan rather than Illinois "as a result of the hostile
atmosphere against Native Americans at the University of Illinois arising out of the Chief
Illiniwek controversy."
Tom Cafcas, a student at the University whose family traces back to the Iroquois,
"considers the Anglo-American construction of Chief Illiniwek to be a reminder of how
exploitation and distortion of Native American culture and religion is woven into
institutions like the University of Illinois without concern for the damage done to Native
American students."
Among other things, plaintiffs allege:
"Chief Illiniwek=s half-time performances at University of
Illinois football and basketball games are false, misleading
and demeaning characterizations of Native Americans and
their culture."
***
"The Chief=s performances at sporting events is [sic]
insulting, demeaning, humiliating and discriminates against
Native Americans and Native American students at the
University of Illinois."
5 1-06-0290
"The Plaintiffs, Native American students, and those that
associate with them, are effectively barred from attending
University of Illinois sporting events where Chief Illiniwek
performs because to attend would be humiliating and
demeaning."
"The Defendants knowingly have exploited Native Americans
by profiting from the perpetuation of false, misleading and
demeaning images of Native Americans in the form of Chief
Illiniwek."
"The Defendants= use of Chief Illiniwek as a mascot at
sporting events is a catalyst for students and others to
imitate Chief Illiniwek on and off campus."
"The Defendants= use of Chief Illiniwek as a mascot creates
a hostile, demeaning and discriminatory environment for
Native Americans on campus."
"When students and others imitate Chief Illiniwek on campus
and elsewhere, it is humiliating, demeaning and
8 1-06-0290
discriminates against Native American students that attend
the University of Illinois, because it subjects them to
disparate treatment and deprives them of an education that
is free from humiliation and harassment."
Plaintiffs seek the following relief: (1) a judicial declaration that the Chief Illiniwek
"mascot" is demeaning and discriminatory to Native Americans and violates the Illinois
Civil Rights Act; (2) temporary and permanent injunctive relief enjoining the University
from continuing to use Chief Illiniwek as a "sports mascot" and from allowing
"entertainment" performances by the Chief at University events; and (3) damages and
attorney=s fees and costs.
The defendants= motion to dismiss plaintiffs= amended complaint for failure to
state a claim contends: (1) the Illinois Civil Rights Act should not be construed to
prohibit the University=s use of Chief Illiniwek because it would improperly invalidate
section 1f of the University of Illinois Act; (2) plaintiffs= allegations are insufficient to state
a claim for discrimination under the Civil Rights Act; and (3) the Civil Rights Act
authorizes civil suits only against the "offending unit of government," not against
individuals.
The trial court granted the defendants= motion to dismiss, finding there was no
conflict between the statutes, that the legislature specifically authorized the University=s
use of the Chief as its symbol or mascot. The court declined to consider defendants=
additional arguments for dismissal, but noted plaintiffs may not sue individual trustees
under the Illinois Civil Rights Act. 740 ILCS 23/5(b) (West 2004).
9 1-06-0290
DECISION
A motion to dismiss challenges the legal sufficiency of a complaint by alleging
defects on its face. 735 ILCS 5/2-615 (West 2000). In reviewing the sufficiency of a
complaint, we accept as true all well-pleaded facts and all reasonable inferences that
may be drawn from those facts and construe the allegations in the light most favorable
to the plaintiff. City of Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d 351, 364, 821 N.E.2d
1099 (2004). Our review is de novo. Beretta, 213 Ill. 2d at 364.
Plaintiffs contend the two statutes at issue are irreconcilably conflicting and ask
this court to decide which statute controls. They say the Illinois Civil Rights Act relates
to discrimination and civil rights, while the University of Illinois Act is silent on those
subjects. Because the statutes are not governed by the same spirit or policy and do not
relate to the same subject, plaintiffs contend the two provisions cannot be harmonized.
Furthermore, when the legislature passed the Illinois Civil Rights Act in 2003, it is
presumed to have been aware of section 1f of the University of Illinois Act, passed in
1996. Yet, the legislature did not include an exception in the Civil Rights Act allowing
the University to "discriminate against Plaintiffs through the use of an >Indian= mascot,
Chief Illiniwek." As the later and more specific statute, the Civil Rights Act should
control, plaintiffs say.
The plaintiffs rely on the Illinois Supreme Court=s decision in State v. Mikusch,
138 Ill. 2d 242, 562 N.E.2d 168 (1990). In Mikusch, several secretary of state
investigators were forced to retire at age 60 under section 2-115 of the Vehicle Code.
The Vehicle Code had been amended on June 20, 1979, to mandate retirement for any
10 1-06-0290
investigator after reaching the age of 60. Mikusch, 138 Ill. 2d at 245-46; Ill. Rev. Stat.
1981, ch. 95 1/2, par. 2-115. The investigators filed suit under the Human Rights Act,
enacted on November 8, 1979, which prohibits discrimination in employment because of
age. Ill. Rev. Stat. 1981, ch. 68, par. 1-101 et seq. At that time, "age" was defined as
"the chronological age of a person who is 40 but not yet 70 years old." Ill. Rev. Stat.
1981, ch. 68, par. 1-103(A). The court set out general rules of statutory construction we
apply in this case:
"The fundamental rule of statutory construction, of course, is
to give effect to the intent of the legislature. [Citation.] In
seeking to ascertain legislative intent, courts consider the
statutes in their entirety, noting the subject they address and
the legislature=s apparent objective in enacting them.
[Citation.] It is presumed that the legislature, in enacting
various statutes, acts rationally and with full knowledge of all
previous enactments. [Citation.] It is further presumed that
the legislature will not enact a law which completely
contradicts a prior statute without an express repeal of it and
that statutes which relate to the same subject are to be
governed by one spirit and a single policy. [Citations.]"
Mikusch, 138 Ill. 2d at 247-48.
The court rejected the Secretary=s argument that section 2-115 could be
harmonized with the Human Rights Act by reading section 2-115 as an exception to the
11 1-06-0290
Human Rights Act. The expression of certain exceptions in a statute will be construed
as an exclusion of all others. Mikusch, 138 Ill. 2d at 250. The detailed list of exceptions
in the Human Rights Act did not include one allowing the mandatory retirement of
Secretary of State investigators. Mikusch, 138 Ill. 2d at 250. The two statutes were
"directly in conflict." Mikusch, 138 Ill. 2d at 249.
Furthermore, because the Human Rights Act was enacted after the amendment
to section 2-115, the court assumed the legislature was aware of its previous
enactment. Mikusch, 138 Ill. 2d at 250. The court considered the legislature=s failure to
provide for the mandatory retirement of Secretary of State investigators as indicating its
intent not to make mandatory retirement for investigators an exception to the Act.
Mikusch, 138 Ill. 2d at 250.
After determining the two statutes were irreconcilable, the court concluded the
Human Rights Act was controlling because it was enacted after section 2-115. "When
two statutes appear to be in conflict, the one which was enacted later should prevail, as
a later expression of intent." Mikush, 138 Ill. 2d at 254. The Human Rights Act also
was the more specific statute on the issue of age discrimination. In the case of two
conflicting statutes, the more specific legislation should control over the more general
one. Mikusch, 138 Ill. 2d at 254. The court did not rely on a repeal by implication.
Plaintiffs= position is not entirely clear to us. We cannot tell whether they are
contending the Civil Rights Act repealed by implication the 1996 statute when they say
the two statutes are "irreconcilable." Repeal by implication is applied when two
enactments of the same legislative body are irreconcilable. Lily Lake Road Defenders
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v. County of McHenry, 156 Ill. 2d 1, 8, 619 N.E.2d 137 (1993). A statute that is
repealed by implication is legally eliminated. Lily Lake, 156 Ill. 2d at 8. Repeals by
implication are not favored. Lily Lake, 156 Ill. 2d at 9. In any case, our
examination of the legislative purpose behind the amended Illinois Civil Rights Act
compels us to conclude there is no conflict between the two statutes. In construing
statutes alleged to be irreconcilable, legislative intent is the paramount consideration.
Moore v. Green, 219 Ill. 2d 470, 479, 848 N.E.2d 1015 (2006). " >Traditional rules of
statutory construction are merely aids in determining legislative intent, and these rules
must yield to such intent.= " Moore, 219 Ill. 2d at 479, quoting Paszkowski v.
Metropolitan Water Reclamation District of Greater Chicago, 213 Ill. 2d 1, 7, 820 N.E.2d
401 (2004).
An examination of the legislative debates helps us understand what the General
Assembly was "particularly concerned with" when it passed the Act. People v. Maya,
105 Ill. 2d 281, 285, 473 N.E.2d 1287 (1985). The Civil Rights Act was introduced in
the House of Representatives as House Bill 2330. The statements of a bill=s sponsor
matter when determining legislative intent. Emerald Casino, Inc. v. Illinois Gaming
Board, 346 Ill. App. 3d 18, 36, 803 N.E.2d 914 (2003). The sponsor of House Bill 2330
said:
"Fritchey: The Bill provides a venue for individuals to bring a
cause of action alleging disparate impact of a government
policy via the State Courts which they presently do not have.
* * *
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Again, it=s just by way of history, there was a Supreme Court
case which limited the ability of individuals to bring actions
pursuant to Title VI under the Federal Act and we are simply
trying to reinstate the ability of individuals to sue under the
State Act. It=s not intended to expand or limit whatever rights
somebody would=ve had." (Emphasis added.) 93d Ill. Gen.
Assem., House Proceedings, April 3, 2003, at 146-48
(statements of Representative Fritchey).
Statements by the sponsor of the bill in the Senate further explain the intent:
"Senator Harmon: *** [The bill] does not break any new legal
ground nor create any new rights. Rather, it creates a State
right of action that has existed at the federal level for over
thirty years*** There is no new exposure for the State, simply
a new venue--State court rather than federal court."
(Emphasis added.) 93d Ill. Gen. Assem., Senate
Proceedings, May 21, 2003, at 9-10 (statements of Senator
Harmon).
It is clear from the legislators= comments and from the language in subsection (b)
of the statute that the Act was not intended to create new rights. It merely created a
new venue in which plaintiffs could pursue in the State courts discrimination actions that
had been available to them in the federal courts.
There is no indication in the Civil Rights Act that the legislature intended to
14 1-06-0290
"overrule" or otherwise diminish its declaration in the University of Illinois Act that "Chief
Illiniwek is, and may remain, the honored symbol of a great university, the University of
Illinois at Urbana-Champaign." 110 ILCS 305/1f (West 1996). Courts presume the
legislature envisions a consistent body of law when it enacts new legislation. Lily Lake,
156 Ill. 2d at 9. We presume the legislature is aware of all previous enactments when it
enacts new legislation. Mikusch, 138 Ill. 2d at 247-48. Given the direct language and
glowing exaltation of Chief Illiniwek in the 1996 statute, we believe that had the
legislature intended to repeal the provision or supercede it, it would have done so
expressly.
There is no "irreconcilable conflict" or contradiction between the statutes. Nor is
there a need to harmonize the two provisions since the statutes are not related. The
plaintiffs concede the two statutes "do not pertain to the same subject and legislative
mission," and section 1f "is silent on the subjects of discrimination and civil rights." In
order for two statutes to be in irreconcilable conflict, they must relate to the same
subject. Mikusch, 138 Ill. 2d at 248. They do not in this case.
In Mikusch, there was clear authority holding the Human Rights Act prohibited
mandatory retirement based on age. The section of the Vehicle Code mandating
retirement for investigators after age 60 directly conflicted with the Act, which prohibited
mandatory retirement before age 70. The plaintiffs in this case assume the University=s
use of Chief Illiniwek constitutes "discrimination," as defined in the Illinois Civil Rights
Act of 2003. They provide no authority for their conclusion.
The plaintiffs contend the legislature=s failure to include an exception or
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exemption for the University=s use of Chief Illiniwek in the Civil Rights Act supports their
contention that the Civil Rights Act rendered the 1996 statute inoperative. We believe
the more reasonable interpretation is that the legislature did not find it necessary to
exempt the University=s actions because it did not consider them to be a form of
"discrimination" under the Civil Rights Act. We do not make any further inquiry into the
plaintiffs= questionable assertion that their allegations amount to a valid claim of
discrimination under the Act. At any rate, plaintiffs have not shown the Act had any
effect on the legislature=s clear statement of affection for Chief Illiniwek in the 1996
statute.
Accordingly, we affirm the trial court=s dismissal of plaintiff=s complaint.
Affirmed.
HOFFMAN, J., specially concurring.
HALL, J., dissenting.
JUSTICE HOFFMAN, specially concurring:
I agree with Justice Wolfson's reasoning, but write separately
because I believe there is a more basic reason why the dismissal of
the plaintiffs' amended complaint should be affirmed; namely, it
fails to allege facts, which if true, would entitle the plaintiffs
to the relief they seek even in the absence of the provisions of
section 1f of the University of Illinois Act (110 ILCS 305/1f (West
2004)).
The plaintiffs' amended complaint purports to state a claim
16 1-06-0290
against the University of Illinois (University) and its board of
trustees for a violation of the Illinois Civil Rights Act (Civil
Rights Act) (740 ILCS 23/1, et seq. (West 2004)). Specifically,
the plaintiffs assert that the University's use of Chief Illiniwek
(Chief) as a sports mascot violates section 5 of the Civil Rights
Act ((740 ILCS 23/5 (West 2004)).
Section 5(b) of the Civil Rights Act provides a private right
of action in favor of any person aggrieved by conduct that violates
subsection (a) of the statute. Section 5(a) provides that:
"(a) No unit of State, county or local government in
Illinois shall:
(1) exclude a person from participation in, deny a
person the benefits of, or subject a person to
discrimination under any program or activity on the
grounds of that person's race, color or national
origin; or
(2) utilize criteria or methods of administration
that have the effect of subjecting individuals to
discrimination because of their race, color or
national origin." 740 ILCS 23/5(a) (West 2004).
The plaintiffs make no claim that the University violated section
5(a)(2); rather, their action appears to be based on a claim of
discrimination under section 5(a)(1). The term "discrimination" is
not defined in the statute. However, Webster's Third New
International Dictionary defines the word as, inter alia, the act
17 1-06-0290
or practice of "according of differential treatment to persons of
an alien race or religion." Webster's Third New International
Dictionary 648 (1981). Black's Law Dictionary defines
discrimination as "[t]he effect of a law or established practice
that confers privileges on a certain class or that denies
privileges to a certain class because of race, age, sex,
nationality, religion, or handicap." Black's Law Dictionary 479
(7th ed. 1999).
Five individuals joined as plaintiffs in this action: Stephan
Naranjo, a Native American student at the University; Roger
Fontana, a Native American; Bess Van Asselt, a student at the
University; John Low, a Native American student at the University
of Michigan; and Tom Cafcas, a Native American student at the
University. Clearly, no claim has been stated as to Van Asselt as
the amended complaint does not allege that she is a Native American
or that she was in any way discriminated against because of her race, color or national origin. See 740 ILCS 23/5(a)(1) (West
2004). Additionally, her assertions of retaliation by fellow
students because of her opposition to the Chief form no basis for
relief. The Civil Rights Act, unlike the Human Rights Act, does
not grant a right of action to a person who experiences retaliation
because he or she has opposed that which he or she reasonably
believes to be unlawful discrimination. See 775 ILCS 5/6-101(A)
(West 2004). The claims of the remaining individual plaintiffs,
all of whom are alleged to be Native Americans, present different
18 1-06-0290
considerations.
The amended complaint alleges that Naranjo and Fontana feel
"humiliated and embarrassed" when their heritage is reduced to
"half-time sporting event entertainment" by the Chief's
performances. Low alleges that he decided to attend the University
of Michigan, rather than the University of Illinois, as "a result
of the hostile atmosphere against Native Americans at the
University of Illinois arising out of the Chief Illiniwek
controversey." Cafcas asserts that the "Anglo-American
construction of Chief Illiniwek" reminds him of how "the
exploitation and distortion of Native American Culture and religion
is woven into institutions like the University of Illinois."
Conspicuously absent from the amended complaint is any allegation
that the University excluded these individual plaintiffs from
participation in, or the benefits of, any program or activity based
on their Native American heritage. Rather, they allege that they
find the Chief's performances to be insulting, demeaning, and
humiliating and, as a result, do not attend University sporting
events where the Chief performs or, in the case of Low, chose to
attend a different university. According to the amended complaint,
the use of the Chief as a sports mascot creates a hostile
environment for Native Americans.
It appears that the Native American plaintiffs' claims of
discrimination are based upon their subjective feelings and the
assertion of a hostile environment based upon the Chief's
19 1-06-0290
performances. However, in the absence of any allegation that the
individual Native American plaintiffs had ever been denied
admittance to any University program, activity, or event based upon
their race or color, I am left with the question of whether the
allegations in their amended complaint state a claim for
discrimination within the meaning of section 5(a)(1) of the Civil
Rights Act.
The amended complaint states that the Chief wears orange and
blue face paint and is dressed in a costume which includes a
feathered head garment and fringed shirt and pants. His half-time
performances at sporting events include a ritual where he prances
about the field of play, waiving his arms about vigorously, and
leaping high into the air as he splits his legs. Upon completing
what the plaintiffs refer to as a "spasm of gymnastic maneuvers,"
the Chief composes himself and walks off the playing field.
Distilled to its finest, the plaintiffs' amended complaint asserts
that the symbolism of the Chief's performances is discriminatory,
and it is that symbolism which the plaintiffs assert creates a
hostile environment.
Because of the nature of the Civil Rights Act, it should be
accorded a liberal interpretation in order to effectuate its
purpose. The actions prohibited by the statute are not limited to
tangible deprivations such as the exclusion of an individual from
participation in a program or the denial of any specific benefit.
The inclusion in section 5(a)(1) of a proscription against
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subjecting a person to discrimination under any program or activity
based on that persons race, color, or national origin evinces a
legislative intent to define discrimination in its broadest
possible terms and prohibit all forms of disparate treatment.
Consequently, I believe that a plaintiff can establish a violation
of section 5(a)(1) of the Civil Rights Act by proving
discrimination predicated upon a hostile environment. See Meritor
Savings Bank, FSB v. Vinson, 477 U.S. 57, 66-67, 106 S.Ct. 2399, 91
L.Ed.2d 49 (1986). However, if the mere uttering of disparaging
words or phrases about a class of persons which engenders offensive
feelings is insufficient to establish a hostile environment (see
McPhaul v . Board of Commissioners of Madison County, 226 F.3d 558, 566-67 (7th Cir. 2000)), I believe it follows that gestures or dress
which a member of a class may find offensive are also insufficient.
Conduct which is not severe enough to create a hostile environment
is beyond the purview of section 5(a)(1).
In this case, the Native American plaintiffs have alleged
subjective feelings of embarrassment and humiliation by the Chief's
performances and that they find the symbolism that the Chief
represents to be both insulting and demeaning. However, I do not
believe that the conduct of which they complain is objectively
hostile. These plaintiffs made no charge that any of the Chief=s
actions were directed to them as individuals; rather, they assert
insult as members of a class. Although some Native Americans may
well find the Chief to be insulting and demeaning, his performances
21 1-06-0290
are certainly not of such a character that a reasonable person
would find so abusive that it would interfere with his or her
ability to participate in, or benefit from, the University's
programs or activities. For this reason I am of the opinion that
the plaintiffs' amended complaint fails to state a cause of action
under section 5 of the Civil Rights Act.
The trial court dismissed this action based on the grounds
addressed by Justice Wolfson. However, the defendants raised the
amended complaint's failure to allege facts rising to the level of
discrimination as a basis for dismissal before the trial court, and
the University raised the issue in its brief before this court. A
reviewing court can affirm a trial court=s decision on any ground
apparent from the record (Material Service Corp. v. Department of Revenue, 98 Ill. 2d 382, 387, 457 N.E.2d 9 (1983)), and I believe
that the failure of the plaintiffs to allege facts rising to the
level of discrimination within the meaning of section 5(a) of the
Civil Rights Act is the principal reason why their amended
complaint should be dismissed. For this reason, I concur in the
affirmance of the circuit court=s judgment.
JUSTICE HALL dissenting.
I respectfully dissent. I am not as confident as my
colleagues that plaintiffs' amended complaint fails to state a
cause of action under the Illinois Civil Rights Act of 2003 (740
ILCS 23/5(a)(1) (2004)). According to the allegations set forth in
the amended complaint, the University's use of Chief Illiniwek as
26 1-06-0290
its sports mascot creates a hostile educational environment for
Native American students. To establish the existence of a racially
hostile educational environment, plaintiffs must prove that the
alleged discriminatory conduct at issue is sufficiently severe,
pervasive, or persistent so as to interfere with their ability to
participate in or benefit from the school's services. see Note,
Native American Mascots, Schools, and the Title VI Hostile
Environment Analysis, 1995 U. Ill. L. Rev. 971, 987.
A hostile-environment analysis in the educational context
entails an examination of the frequency of the alleged
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with the student's academic
performance. Hayut v. State University of New York, 352 F.3d 733,
745 (2003). This standard requires the student to present evidence
that he or she not only subjectively perceived the environment to
be hostile, but also that the environment was objectively hostile
or abusive. Hayut, 352 F.3d at 745.
In this case, considering the allegations of the amended
complaint in the light most favorable to the plaintiffs, I believe
the allegations are sufficient to state a cause of action for
racially hostile educational environment under the Illinois Civil
Rights Act of 2003 (740 ILCS 23/5(a)(1) (2004)). See, e.g., Daniel
v. Bd. of Educ. for Ill. Sch. Dist. U-46, 379 F. Supp. 2d 952. 963
(N.D. Ill. 2005) (allegations by minority and limited English
27 1-06-0290
proficient students that they suffered racially disparate effects
as a result of local board of education redistricting plan was
sufficient to state a claim under the Illinois Civil Rights Act of
2003 (740 ILCS 23/5(a)(1) (2004))). A trier of fact should decide,
on another day, whether plaintiffs can actually prove their
allegations, but plaintiffs have pleaded sufficient facts to allege
a racially hostile educational environment.
In light of the number of prominent educational institutions
that have voluntarily discontinued the use of Native American
nicknames, symbols, and mascots (see generally 1995 U. Ill. L. Rev.
at 1000), I cannot conclude that a reasonable person in plaintiffs'
position would not find that the University's continued official
sanctioning of Chief Illiniwek as its sports mascot violates the
civil rights of Native American students by creating and
contributing to an objectively hostile educational environment.