On May 10, 2022, the Seventh Circuit Court of Appeals issued an opinion analyzing under what circumstances a school district could be held liable under Title IX (a federal statute) for alleged abuse of a student by a school employee. C.S. v. Madison ...
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Municipal Minute

Seventh Circuit Clarifies Scope of Liability for Abuse Claims Under Title IX

On May 10, 2022, the Seventh Circuit Court of Appeals issued an opinion analyzing under what circumstances a school district could be held liable under Title IX (a federal statute) for alleged abuse of a student by a school employee. C.S. v. Madison Metropolitan School District

According to the facts in the court’s opinion, during a student’s seventh-grade year at school, several employees reported to the principal that they were concerned about incidents they witnessed involving a school security assistant: the employee was seen giving back rubs to students, allowing the young girl in question to visit his office after school, hugging the girl, and refusing the girl’s attempts to kiss him on the cheek. In response, the principal told the security guard to limit physical contact and avoid private interactions with the student, advising him to set strong boundaries with her. After the student graduated from middle school, she reported that the inappropriate conduct had not stopped after the principal’s warnings: instead, she claimed that the employee’s conduct had escalated and she sued the school district under Title IX. The district court ruled in favor of the school district, and the student appealed to the Seventh Circuit.

The test adopted by the U.S. Supreme Court for Title IX sex discrimination claims requires a plaintiff to show that a school district official with authority to institute corrective measures had (1) actual notice of a teacher or employee’s misconduct and (2) acted with “deliberate indifference” in response. In this case, the Court of Appeals acknowledged that test and also noted that a school district cannot be held liable under Title IX based “solely on the knowledge of the risk of future misconduct.” Instead, a school district has liability only when the school has knowledge of past discrimination and has proven unwilling to act to end the discriminatory conduct and limit further harassment.

In this case, the Seventh Circuit also ruled in favor of the school district, finding that when the principal was notified of the earlier inappropriate interactions between the student and security assistant, she responded reasonably by counseling the employee to establish boundaries. Because no further harassment or abuse was reported to the principal following her discussion with the employee, the principal had no actual notice of abuse and no reason to expect the relationship would escalate. The school avoided a finding of “deliberate indifference” under the Title IX discrimination test adopted by the Supreme Court because the principal took actions that were reasonably calculated to bring the school into compliance with Title IX, based on her knowledge of the alleged misconduct.

While the school district was not found liable in this case, the Court of Appeals did suggest that schools “err on the side of taking reactive and preventative measures to ensure compliance with Title IX,” when they observe or become aware of inappropriate conduct.

Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

PAC Finds "Final Action" Even Without a Vote

The Public Access Counselor of the Illinois Attorney General's Office (PAC) recently issued its 6th binding opinion of 2022 finding a public body in violation of the Open Meetings Act for failing to sufficiently describe an agenda item. PAC Op. 22-006.

After a meeting of a school board, an individual filed a request for review with the PAC alleging that the school board voted to make masks optional in the schools without listing that action item on its meeting agenda. The school board filed a response, explaining that the board discussed a revised mitigation plan prepared by the superintendent but did not take a vote on the plan at the meeting. The school board argued that since it did not take final action on the plan, there was no requirement to place that item on the meeting agenda.

The PAC reviewed the meeting minutes, as well as other documents relating to the meeting, including a communication sent out by the school board to parents. The PAC first acknowledged that the board's discussion of the mitigation plan did not violate the OMA. However, the PAC found that the board did, in fact, take final action on the mitigation plan even though the board did not vote on the plan. The PAC based its decision on language in the meeting minutes that noted that the board reached a "consensus" on the superintendent's mitigation plan as well as a communication sent out by the board to parents that notified them of the changes to the mitigation plan regarding masking in the schools. 

Interestingly, the PAC acknowledged that an Illinois Appellate Court had previously expressly held that "[w]ithout the public vote, no final action has occurred" but then disregarded that holding and similar court holdings in finding that the school board took final action on the masking plan without an actual vote. The PAC seemed to distinguish the court's holding that no final action is taken without a public vote because the school board in this case had not ratified its decision. Frankly, this issue seems more appropriately raised in an action to challenge the validity of the masking plan changes without final action having been taken by the school board (which is an issue that is clearly outside the PAC's jurisdiction) rather than having the PAC determine whether final action was taken without proper notice since no vote was actually taken by the board. In an even more surprising turn, the PAC concludes its opinion by ordering the school board to take a formal vote on the plan - seemingly mandating action to determine local legislative policy. 

Quorum Forum Podcast Ep 64 - Planning and Law

Ancel Glink's Quorum Forum Podcast just released Episode 64: APA-CMS Bar Exam 2022

In this episode, we are celebrating four years of Ancel Glink’s Quorum Forum podcast at the APA-CMS Bar Exam, a realistic simulated law school experience for planners and land use professionals. Recorded live at the Haymarket Pub and Brewery on April 6, 2022, listen to APA-IL Chapter President Nina Idemudia and Ancel Glink attorneys Daniel Bolin, Megan Mack, and Greg Jones discuss the most important planning law cases of the year. 

Governor Extends Disaster Proclamation for Another 30 Days

Illinois Governor Pritzker issued another disaster proclamation last Friday that extends through May 29th. You can read it here. Since this disaster proclamation meets the requirements of section 7(e) of the Open Meetings Act, public bodies can meet remotely (or in a hybrid fashion) so long as they can make a localized determination that it is not practical or prudent for the body to meet in-person because of a public health crisis and the public body complies with all of the requirements of section 7(e).

Supreme Court Finds City in Violation of First Amendment for Denying Religious Flag on City Flag Pole

On Monday, the U.S. Supreme Court issued an opinion finding the City of Boston in violation of the First Amendment after it denied a religious group the ability to fly its "Christian Flag" on the flagpole at City Hall. Shurtleff v. City of Boston. Justice Breyer authored the opinion, and all nine Justices joined in the judgment, although there were three separate concurring opinions.

The City of Boston has three flag poles on a plaza at City Hall. The City usually flies the American flag, the Massachusetts flag, and the City flag on those flagpoles. Occasionally, the City allowed private groups to hold events on the plaza and fly the flag of their choosing on the third flagpole (the one that usually flies the City flag). According to the decision, the City allowed 50 different flags to be flown on the City flagpole between 2005 and 2017. 

In 2017, a group called "Camp Constitution" asked the City to allow it to hold a flag raising event where the group would fly a flag that would commemorate the Christian faith (Christian Flag). The City denied approval on the basis that it believed that flying a religious flag at City Hall would violate the Establishment Clause of the First Amendment. The group sued the City, and the district court held that the City acted within its constitutional authority by denying the Christian Flag, finding that the flags flying from the City's flag pole constituted government speech, meaning the City could choose what flags to fly (i.e., control the message).

The case made its way to the U.S. Supreme Court which issued its opinion this week finding that the City's flag practices were not government speech. Instead, the Court determined that the City had opened up a public forum when it allowed private groups to fly flags of their choosing at City Hall, and once a public forum was open, the City could not discriminate based on religious viewpoint. The Court stated as follows:

When a government does not speak for itself, it may not exclude speech based on "religious viewpoint"; doing so "constitutes impermissible viewpoint discrimination."

The Court acknowledged that there is a blurry line between government speech (where the government can control the message) and a public forum (where the government invites speech and cannot discriminate based on viewpoint). In analyzing whether the flagpole activities were government speech or constituted a public forum, the Court looked at three factors.

First, the Court looked at the history of flag flying at City Hall, which the Court recognized mostly supported the City of Boston since the City's flagpole most often conveyed the City's message (the City flag) and not private expression.

Second, the Court looked at whether the public would tend to view the speech (i.e., flag flying) as City speech or private expression. The Court determined that this factor was not clear since the City flag and private flags shared the third flagpole.

The final factor was the extent to which the City controlled the flag raisings and shaped the messages. It was this factor that the Court found determinative in its analysis of whether the speech was government speech or private expression. The Court noted that the City had allowed numerous groups to raise their flags over a 12 year period and had never denied permission until 2017 when it denied the Christian Flag. The Court also noted that the private groups selected the flags, not the City. The Court found no evidence that the private flags were an expression of the City's official sentiments or messaging, contrasting Boston's practice with a flagpole policy adopted by the City of San Jose that expressly states that the approved flags that may be flown on its flagpoles "are not intended to serve as a forum for free expression by the public" and instead are flown "as an expression of the City's official sentiments." 

It is important to note that the Court did not hold that all government flagpoles must accommodate private expression or that a government cannot choose to fly a flag of its own choosing to commemorate an occasion, event, or group. What the Court did say, however, is that a government flagpole could turn into a "public forum" if the government opens it up to private expression in a manner like what the City of Boston had done. Once a public forum is created, the government needs to be careful not to discriminate based on the viewpoint of the message or speech in a way that would violate the First Amendment.