Court Upholds Termination of School Counselor for Speech at Rally and more...

Court Upholds Termination of School Counselor for Speech at Rally

A Wisconsin school district terminated a school counselor after she delivered a profanity-laden speech denouncing gender ideology and transgenderism and their impact on children at a rally at the state capitol. The guidance counselor filed a civil rights lawsuit against the school board and three school officials claiming she was unlawfully fired in retaliation for exercising her First Amendment right to freedom of speech. The district court denied her request for a preliminary injunction and dismissed her First Amendment claim, finding that the school district's interests as a public employer outweighed her speech rights under these circumstances. On appeal, the Seventh Circuit Court of Appeals upheld the dismissal in Darlingh v. Maddaleni (7th Cir. July 2, 2025).

After video of her speech at the rally appeared on YouTube, the school opened an investigation, ultimately firing her for violating school policies that prohibited abusive and intimidating language and bullying. The school also explained that her speech at the rally impaired her ability to perform as a guidance counselor, damaged the school's reputation, and undermined its mission to provide an equitable and supportive learning environment for all students.

On appeal, the Seventh Circuit Court of Appeals applied the U.S. Supreme Court's Pickering balancing test to the counselor's First Amendment claim. That test requires a court to determine whether the public employer's interests outweigh the employee's free speech rights. In applying that test, the Seventh Circuit examined whether the counselor's speech was constitutionally protected - i.e., was she speaking as a citizen on a matter of public concern? The Seventh Circuit determined that while the counselor's speech interests were strong, and the topic she spoke on was a matter of intense public concern, the context of her speech and her role as a school guidance counselor was important in the analysis. In balancing the school district's interest that guidance counselors have an "inordinate amount of trust and authority," against the guidance counselor's speech at the rally which the court found to be "a harsh, angry, and profanity-filled public pledge...that was hardly compatible with her obligation to build student and parental trust," the Seventh Circuit concluded that the school district's interests outweighed the guidance counselor's free speech rights in these circumstances. As a result, the guidance counselor's speech fell outside the scope of the First Amendment's protection as applied to public employment.

Post Conviction Proceeding Records Were Not Entirely Exempt Under FOIA

After an inmate submitted several FOIA requests to a state’s attorney’s office (SAO) seeking records regarding his pending post conviction proceeding, the SAO denied the request in its entirety based on the FOIA exemption that protects from release records that would interfere with a pending law enforcement proceeding. The SAO argued that disclosing the records would interfere with a pending law enforcement proceeding because the requester’s civil postconviction proceeding was still pending at the time of receiving the FOIA requests. The requester filed a lawsuit against the SAO alleging they improperly denied his FOIA requests, and the circuit court ruled in favor of the SAO, finding that disclosing the requested records to the requester would interfere with pending law enforcement proceedings.

On appeal, the First District Appellate Court reversed the circuit court, finding that the SAO did not prove that all of its responsive records were exempt from disclosure under FOIA. Taylor v. Cook County State’s Attorney’s Office.

First, the Appellate Court rejected the requester’s argument that the circuit court incorrectly treated his civil postconviction proceeding as a law enforcement proceeding, finding that civil postconviction proceedings do fall within the scope of Section 7(1)(d)(i) of FOIA (the pending law enforcement proceedings exemption).

Nevertheless, the Appellate Court determined that the SAO improperly withheld the responsive records under that exemption. Although an affidavit from the SAO’s FOIA officer stated that its responsive records were entirely exempt because disclosure would interfere with a pending postconviction proceeding, the Appellate Court determined that the affidavit was insufficient because it was conclusory and did not specifically explain which records were exempt from disclosure, and why the records were categorically exempt from disclosure. It is important to note that the Appellate Court held that the pendency of a postconviction petition, in and of itself, was not sufficient to entirely exempt records under the cited exemption.

The Appellate Court ordered the SAO to either disclose the responsive records or justify withholding its responsive records by preparing an index and a detailed affidavit explaining why disclosing each document would interfere with or harm pending or prospective law enforcement proceedings

Post Authored by Eugene Bolotnikov, Ancel Glink

PAC Determined that a City Committee was a Subsidiary Body Subject to OMA

A member of the public submitted a "request for review" to the Illinois Attorney General's Public Access Counselor's office (PAC) claiming that a City pool committee (Committee) violated the Open Meetings Act (OMA) by holding meetings closed to the public regarding building a new pool in the City. After analyzing a four-factor test established by the Illinois Supreme Court to determine whether the Committee would constitute a “subsidiary body” subject to OMA requirements, the PAC concluded that the Committee is a subsidiary body of the City subject to the requirements of OMA. PAC Op. 25-007.

First, the PAC determined that the Committee did not legally exist independently of the City, because the City created the Committee as part of the City’s planning process to construct a new pool in the City. Although the City argued the Committee was an informal advisory committee, the PAC stated that labelling the Committee or its gatherings as “informal” does not shield its gatherings or discussions about public business from OMA requirements.

Second, the PAC determined that the City exerts a significant amount of government control over the Committee, because the Mayor appoints the members of the Committee, the Committee’s recommendations are subject to City Council approval, and the City has been directly involved in and controlled multiple facets of Committee activities relating to building a pool in the City, including providing assistance related to finance, engineering and zoning, and parks and recreations matters.

Third, although the PAC noted that it was unclear whether the Committee uses any public resources for its activities (e.g., holding meetings on city property), and the City noted that Committee members are unpaid volunteers, the PAC asserted that the Committee receives at least some indirect public funding by virtue of being part of the City, and City officials and employees devote their time to supporting the Committee’s activities.

Lastly, the PAC determined that the City utilizes the Committee to perform governmental functions, because the Committee is tasked with assessing the potential designs, costs, and locations for a new City pool, and reporting its findings to the City, which the PAC argued are roles typically performed by a municipal committee.

Post Authored by Eugene Bolotnikov, Ancel Glink

PAC Finds Public Body in Violation of FOIA Relating to Settlement Records

A city received a FOIA request seeking copies of the department’s settlement records concerning a class action lawsuit against a named alderperson. In response to the request, the city disclosed certain responsive records, but withheld a record concerning the settlement that was signed by the alderperson and a city attorney pursuant Section 7(1)(m) of FOIA, which exempts from disclosure privileged attorney-client communications between a public body and its attorneys.

After the requester submitted a request for review, the PAC issued its sixth binding opinion of 2025, concluding that the department improperly withheld the responsive record pursuant to Section 7(1)(m) of FOIA. PAC Op. 25-006. In connection with the withheld record at issue, the PAC determined that because the alderperson was represented by a private attorney, while the city was represented by attorneys from its law department, the parties had separate interests in the subject matter of the withheld record. Because (1) no legal advice pertaining to the litigation or the settlement was sought from or provided to the alderperson from the city attorney who signed the record, and (2) there was no indication the city attorney was acting as the alderperson’s attorney in connection with the settlement, the PAC determined that the withheld record was not a privileged attorney-client communication under Section 7(1)(m) of FOIA.

Additionally, because the withheld record was not a communication protected by the attorney-client privilege, and related to the obligation, receipt, or use of city funds regarding the settlement, the PAC determined that the public had a right to know the purposes for which public funds were expended in connection with the settlement.

Post Authored by Eugene Boltnikov, Ancel Glink

Seventh Circuit Upholds Preliminary Injunction Barring Enforcement of School’s “Sex Assigned at Birth” Restroom Policy

The Seventh Circuit Court of Appeals recently upheld a district court's preliminary order prohibiting a school district (District) from enforcing its policy that requires transgender students to use restrooms that are gender-neutral or correspond to their sex assigned at birth. D.P. v. Mukwonago Area School District, et al.

The District enacted a policy requiring all students to use restrooms and locker room facilities according to their sex assigned at birth, or otherwise use gender-neutral alternatives. The policy included procedures allowing students to request an exception, which would be evaluated on a case-by-case basis with the student and their parents. Prior to adoption of the policy, a transgender middle-school student (Student) regularly used the girls’ bathroom. Following adoption of the policy, the Student and her mother sent a letter to the District demanding that the policy be rescinded. The District responded, offering to go through the evaluation process for an exception under its policy. Shortly thereafter, the Student filed a federal lawsuit claiming violations of Title IX of the Educational Amendments of 1972 (Title IX) and the Equal Protection Clause of the Fourteenth Amendment.

At the time she filed her lawsuit, the Student also submitted a motion seeking a temporary restraining order (TRO) and preliminary injunction to prevent the District from enforcing the policy while the case was ongoing. The District opposed the request for temporary relief but did not request an evidentiary hearing or submit any additional evidence. The district court granted the Student’s request for a TRO and—five days later—converted it to a preliminary injunction prohibiting enforcement of the District’s policy until the case was fully resolved. The District appealed the district court’s decision to the Seventh Circuit Court of Appeals, arguing that (1) the judge erred by not holding a hearing prior to granting the preliminary injunction, and (2) the preliminary injunction should be voided because the Student was not likely to succeed on the merits of her claims.

The Seventh Circuit ruled in favor of the Student and upheld the preliminary injunction entered by the district court. The Seventh Circuit noted that an evidentiary hearing is only required when an opposing party raises genuine issues of fact in response to a motion for preliminary injunction but because the District did not dispute the factual record established by the Student, and failed to request a hearing, the Court found no error in granting the preliminary injunction based solely on the written submissions of the parties.

The Seventh Circuit also determined that the preliminary injunction was properly entered because the Student demonstrated she was likely to succeed in the case and would suffer irreparable harm if she were made to comply with the District’s policy during litigation. The Court cited several key cases addressing the issue of transgender students’ use of restrooms and noted that the District’s policy would likely be ruled unlawful discrimination based on sex under Title IX and the Equal Protection Clause.

Post Authored by Erin Monforti, Ancel Glink

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