{ "id": 4266119, "name": "ILLINOIS NATIVE AMERICAN BAR ASSOCIATION (INABA) et al., Plaintiffs-Appellants, v. THE UNIVERSITY OF ILLINOIS, by its Board of Trustees, et al., Defendants-Appellees", "name_abbreviation": "Illinois Native American Bar Ass'n v. University of Illinois", "decision_date": "2006-09-19", "docket_number": "No. 1\u201406\u20140290", "first_page": "321", "last_page": "333", "citations": [ { "type": "official", "cite": "368 Ill. App. 3d 321" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "803 N.E.2d 914", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "346 Ill. App. 3d 18", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3833020 ], "year": 2003, "pin_cites": [ { "page": "36" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/346/0018-01" ] }, { "cite": "473 N.E.2d 1287", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "105 Ill. 2d 281", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3141386 ], "year": 1985, "pin_cites": [ { "page": "285" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/105/0281-01" ] }, { "cite": "820 N.E.2d 401", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "213 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8447969 ], "year": 2004, "pin_cites": [ { "page": "7" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/213/0001-01" ] }, { "cite": "848 N.E.2d 1015", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2006, "opinion_index": 0 }, { "cite": "219 Ill. 2d 470", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3597890 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "479" }, { "page": "479" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/219/0470-01" ] }, { "cite": "619 N.E.2d 137", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "156 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777560 ], "weight": 4, "year": 1993, "pin_cites": [ { "page": "8" }, { "page": "8" }, { "page": "9" }, { "page": "9" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0001-01" ] }, { "cite": "562 N.E.2d 168", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "138 Ill. 2d 242", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5576546 ], "weight": 12, "year": 1990, "pin_cites": [ { "page": "245-46" }, { "page": "247-48" }, { "page": "250" }, { "page": "250" }, { "page": "249" }, { "page": "250" }, { "page": "250" }, { "page": "254" }, { "page": "254" }, { "page": "247-48" }, { "page": "248" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/138/0242-01" ] }, { "cite": "821 N.E.2d 1099", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "213 Ill. 2d 351", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8448906 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "364" }, { "page": "364" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/213/0351-01" ] }, { "cite": "379 F. Supp. 2d 952", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 8939462 ], "year": 2005, "pin_cites": [ { "page": "963", "parenthetical": "allegations by minority and limited-English-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)(l" } ], "opinion_index": 1, "case_paths": [ "/f-supp-2d/379/0952-01" ] }, { "cite": "352 F.3d 733", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9297719 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "745" }, { "page": "745" } ], "opinion_index": 1, "case_paths": [ "/f3d/352/0733-01" ] }, { "cite": "1995 U. Ill. L. Rev. 971", "category": "journals:journal", "reporter": "U. Ill. L. Rev.", "pin_cites": [ { "page": "987" } ], "opinion_index": 1 }, { "cite": "457 N.E.2d 9", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 1 }, { "cite": "98 Ill. 2d 382", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3121957 ], "year": 1983, "pin_cites": [ { "page": "387" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/98/0382-01" ] }, { "cite": "226 F.3d 558", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11232670 ], "year": 2000, "pin_cites": [ { "page": "566-67" } ], "opinion_index": 1, "case_paths": [ "/f3d/226/0558-01" ] }, { "cite": "477 U.S. 57", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6203537 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "66-67" }, { "page": "59-60" }, { "page": "2405-06" } ], "opinion_index": 1, "case_paths": [ "/us/477/0057-01" ] } ], "analysis": { "cardinality": 1212, "char_count": 31636, "ocr_confidence": 0.749, "pagerank": { "raw": 1.057842429563087e-07, "percentile": 0.5558121342209527 }, "sha256": "84445d666bcc9f2aef734bf40fdecf6e5de726c15f071ea08cda0393f4a64006", "simhash": "1:29719360e8ef59d9", "word_count": 5066 }, "last_updated": "2023-07-14T20:06:43.500571+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ILLINOIS NATIVE AMERICAN BAR ASSOCIATION (INABA) et al., Plaintiffs-Appellants, v. THE UNIVERSITY OF ILLINOIS, by its Board of Trustees, et al., Defendants-Appellees." ], "opinions": [ { "text": "PRESIDING JUSTICE WOLFSON\ndelivered the opinion of the court:\nAt 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. 740 ILCS 23/5 (West 2004). They ask for a declaratory judgment, damages, and an injunction ordering a stop to the performance and barring any University use of Chief Illiniwek (the Chief), whom the plaintiffs refer to as a \u201csports mascot,\u201d while the defendants describe him as a \u201csymbol.\u201d\nDefendants filed a motion to dismiss, contending the Illinois legislature specifically approved the University\u2019s continued use of the Chief when it passed a 1996 amendment to the University of Illinois Act (now see 110 ILCS 305/0.01 et seq. (West 2004)) declaring Chief Illiniwek an \u201chonored symbol\u201d 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.\nThe trial court found no conflict between the two statutes. It dismissed plaintiffs\u2019 complaint. It did not address the question of whether discrimination occurred. We affirm the trial court.\nFACTS\nThe 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, 31 (2004). Chief Illiniwek performs a type of \u201cfancy dancing,\u201d which employs a double step, intricate footwork, and spinning movements. 2 DePaul J. Sports L. & Contemp. Probs. at 32. It is a considerably faster style of dance than traditional Indian dances. 2 DePaul J. Sports L. & Contemp. Probs. at 32. The dance is part of a performance known as the \u201cThree In One,\u201d consisting of three songs. 2 DePaul J. Sports L. & Contemp. Probs. at 32.\n\u201cThe first is called \u2018Pride of the Illini\u2019 and is performed while the Marching Illini band marches toward the north end zone in an T 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 T-L-L-I-N-I\u2019 formation and performs his dance to the tune of the second song, \u2018March of the Illini\u2019, 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 \u2018Hail to the Orange\u2019, the university alma mater. At the conclusion of \u2018Hail to the Orange\u2019, Chief Illiniwek exits the field with the band as \u2018March of the Illini\u2019 is being played.\u201d 2 DePaul J. Sports L. & Contemp. Probs. at 32 n.18.\nPlaintiffs\u2019 \u201cAmended Complaint for Declaratory and Injunctive Relief as to the Sports Mascot Chief Illiniwek\u201d was brought under the Illinois Civil Rights Act. Pursuant to the Act, a unit of state, county, or local government in Illinois may not:\n\u201c(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\u2019s race, color, or national origin; or\n(2) utilize criteria or methods of administration that have the effect of subjecting individuals to discrimination because of their race, color, or national origin.\n(b) Any party aggrieved by conduct that violates subsection (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.\u201d 740 ILCS 23/5(a), (b) (West 2004).\nSeven years earlier, the General Assembly enacted section If of the University of Illinois Act, which provides:\n\u201cConsistent 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.\u201d 110 ILCS 305/lf (West 1996).\nThe plaintiffs allege the members of the Illinois Native American Bar Association (INABA) \u201csuffer personally and professionally from the racist policy of the University in allowing the use of Chief Illiniwek as a sports mascot.\u201d\nThey 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 \u201chumiliated, embarrassed and discriminated against when [their] heritage is reduced to a half-time sporting event entertainment by Chief Illiniwek performances\u201d and feel \u201cthat the image of Chief Illiniwek is inaccurate and demeans their culture and race.\u201d\nBess Van Asselt, a student at the University, \u201chas been harassed and humiliated by persons that support the perpetuation of Chief Illiniwek as a sports mascot,\u201d causing her to feel isolated and alienated within her dorm to the degree that she withdrew from her residential contract and moved.\nJohn Low, a member of the Potawatomi Tribe and a student at the University of Michigan, decided to study at Michigan rather than Illinois \u201cas a result of the hostile atmosphere against Native Americans at the University of Illinois arising out of the Chief Illiniwek controversy.\u201d\nTom Cafcas, a student at the University whose family traces back to the Iroquois, \u201cconsiders 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.\u201d\nAmong other things, plaintiffs allege:\n\u201cChief Illiniwek\u2019s half-time performances at University of Illinois football and basketball games are false, misleading and demeaning characterizations of Native Americans and their culture.\nThe Chiefs performances at sporting events is [sic] insulting, demeaning, humiliating and discriminates against Native Americans and Native American students at the University of Illinois.\nThe 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.\n:\u00a1! * *\nThe 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.\n* * *\nThe Defendants\u2019 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.\n>:< * *\nThe Defendants\u2019 use of Chief Illiniwek as a mascot creates a hostile, demeaning and discriminatory environment for Native Americans on campus.\n* * *\nWhen students and others imitate Chief Illiniwek on campus and elsewhere, it is humiliating, demeaning and 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.\u201d\nPlaintiffs seek the following relief: (1) a judicial declaration that the Chief Illiniwek \u201cmascot\u201d 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 \u201csports mascot\u201d and from allowing \u201centertainment\u201d performances by the Chief at University events; and (3) damages and attorney fees and costs.\nThe defendants\u2019 motion to dismiss plaintiffs\u2019 amended complaint for failure to state a claim contends: (1) the Illinois Civil Rights Act should not be construed to prohibit the University\u2019s use of Chief Illiniwek because it would improperly invalidate section If of the University of Illinois Act; (2) plaintiffs\u2019 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 \u201coffending unit of government,\u201d not against individuals.\nThe trial court granted the defendants\u2019 motion to dismiss, finding there was no conflict between the statutes and that the legislature specifically authorized the University\u2019s use of the Chief as its symbol or mascot. The court declined to consider defendants\u2019 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).\nDECISION\nA motion to dismiss challenges the legal sufficiency of a complaint by alleging defects on its face. 735 ILCS 5/2\u2014615 (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.\nPlaintiffs 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 If 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 \u201cdiscriminate against Plaintiffs through the use of an \u2018Indian\u2019 mascot, Chief Illiniwek.\u201d As the later and more specific statute, the Civil Rights Act should control, plaintiffs say.\nThe plaintiffs rely on the Illinois Supreme Court\u2019s 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 \u2014 115 of the Illinois Vehicle Code. The Vehicle Code had been amended on June 20, 1979, to mandate retirement for any investigator after reaching the age of 60. Mikusch, 138 Ill. 2d at 245-46; Ill. Rev. Stat. 1981, ch. 951/2, par. 2\u2014115. The investigators filed suit under the Illinois Human Rights Act, enacted on November 8, 1979, which prohibits discrimination in employment because of age. Ill. Rev. Stat. 1981, ch. 68, par. 1\u2014101 et seq. At that time, \u201cage\u201d was defined as \u201cthe chronological age of a person who is 40 but not yet 70 years old.\u201d Ill. Rev. Stat. 1981, ch. 68, par. 1\u2014103(A). The court set out general rules of statutory construction we apply in this case:\n\u201cThe 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\u2019s 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.]\u201d Mikusch, 138 Ill. 2d at 247-48.\nThe court rejected the Secretary\u2019s argument that section 2 \u2014 115 could be harmonized with the Human Rights Act by reading section 2 \u2014 115 as an exception to the 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 \u201cdirectly in conflict.\u201d Mikusch, 138 Ill. 2d at 249.\nFurthermore, because the Human Rights Act was enacted after the amendment to section 2\u2014115, the court assumed the legislature was aware of its previous enactment. Mikusch, 138 Ill. 2d at 250. The court considered the legislature\u2019s 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.\nAfter determining the two statutes were irreconcilable, the court concluded the Human Rights Act was controlling because it was enacted after section 2 \u2014 115. \u201cWhen two statutes appear to be in conflict, the one which was enacted later should prevail, as a later expression of intent.\u201d Mikusch, 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.\nPlaintiffs\u2019 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 \u201cirreconcilable.\u201d Repeal by implication is applied when two enactments of the same legislative body are irreconcilable. Lily Lake Road Defenders 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.\nIn 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). \u201c \u2018Traditional rules of statutory construction are merely aids in determining legislative intent, and these rules must yield to such intent.\u2019 \u201d 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).\nAn examination of the legislative debates helps us understand what the General Assembly was \u201cparticularly concerned with\u201d 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\u2019s 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:\n\u201cFritchey: 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.\n* *\nAgain, it\u2019s 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\u2019s not intended to expand or limit whatever rights somebody would\u2019ve had.\u201d (Emphasis added.) 93d Ill. Gen. Assem., House Proceedings, April 3, 2003, at 146-48 (statements of Representative Fritchey).\nStatements by the sponsor of the bill in the Senate further explain the intent:\n\u201cSenator 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\u2014 State court rather than federal court.\u201d (Emphasis added.) 93d Ill. Gen. Assem., Senate Proceedings, May 21, 2003, at 9-10 (statements of Senator Harmon).\nIt is clear from the legislators\u2019 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.\nThere is no indication in the Civil Rights Act that the legislature intended to \u201coverrule\u201d or otherwise diminish its declaration in the University of Illinois Act that \u201cChief Illiniwek is, and may remain, the honored symbol of a great university, the University of Illinois at Urbana-Champaign.\u201d 110 ILCS 305/lf (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.\nThere is no \u201cirreconcilable conflict\u201d 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 \u201cdo not pertain to the same subject and legislative mission,\u201d and section If \u201cis silent on the subjects of discrimination and civil rights.\u201d 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.\nIn 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\u2019s use of Chief Illiniwek constitutes \u201cdiscrimination,\u201d as defined in the Illinois Civil Rights Act of 2003. They provide no authority for their conclusion.\nThe plaintiffs contend the legislature\u2019s failure to include an exception or exemption for the University\u2019s 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\u2019s actions because it did not consider them to be a form of \u201cdiscrimination\u201d under the Civil Rights Act. We do not make any further inquiry into the plaintiffs\u2019 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\u2019s clear statement of affection for Chief Illiniwek in the 1996 statute.\nAccordingly, we affirm the trial court\u2019s dismissal of plaintiffs\u2019 complaint.\nAffirmed.", "type": "majority", "author": "PRESIDING JUSTICE WOLFSON" }, { "text": "JUSTICE HOFFMAN,\nspecially concurring:\nI agree with Justice Wolfson\u2019s reasoning, but write separately because I believe there is a more basic reason why the dismissal of the plaintiffs\u2019 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 If of the University of Illinois Act (110 ILCS 305/lf (West 2004)).\nThe plaintiffs\u2019 amended complaint purports to state a claim against the University of Illinois (University) and its board of trustees for a violation of the Illinois Civil Rights Act of 2003 (Civil Rights Act) (740 ILCS 23/1 et seq. (West 2004)). Specifically, the plaintiffs assert that the University\u2019s use of Chief Illiniwek (Chief) as a sports mascot violates section 5 of the Civil Rights Act (740 ILCS 23/5 (West 2004)).\nSection 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:\n\u201c(a) No unit of State, county or local government in Illinois shall:\n(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\u2019s race, color or national origin; or\n(2) utilize criteria or methods of administration that have the effect of subjecting individuals to discrimination because of their race, color or national origin.\u201d 740 ILCS 23/5(a) (West 2004).\nThe 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 \u201cdiscrimination\u201d is not defined in the statute. However, Webster\u2019s Third N.ew International Dictionary defines the word as, inter alia, the act or practice of \u201caccording of differential treatment to persons of an alien race or religion.\u201d Webster\u2019s Third New International Dictionary 648 (1981). Black\u2019s Law Dictionary defines discrimination as \u201c[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.\u201d Black\u2019s Law Dictionary 479 (7th ed. 1999).\nFive 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)(l) (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 \u2014 101(A) (West 2004). The claims of the remaining individual plaintiffs, all of whom are alleged to be Native Americans, present different considerations.\nThe amended complaint alleges that Naranjo and Fontana feel \u201chumiliated and embarrassed\u201d when their heritage is reduced to \u201chalftime sporting event entertainment\u201d by the Chiefs performances. Low alleges that he decided to attend the University of Michigan, rather than the University of Illinois, as \u201ca result of the hostile atmosphere against Native Americans at the University of Illinois arising out of the Chief Illiniwek controversey.\u201d Cafeas asserts that the \u201cAnglo-American construction of Chief Illiniwek\u201d reminds him of how \u201cthe exploitation and distortion of Native American Culture and religion is woven into institutions like the University of Illinois.\u201d 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\u2019s 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.\nIt appears that the Native American plaintiffs\u2019 claims of discrimination are based upon their subjective feelings and the assertion of a hostile environment based upon the Chiefs 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.\nThe 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 halftime performances at sporting events include a ritual where he prances about the field of play, waving his arms about vigorously, and leaping high into the air as he splits his legs. Upon completing what the plaintiffs refer to as a \u201cspasm of gymnastic maneuvers,\u201d the Chief composes himself and walks off the playing field. Distilled to its finest, the plaintiffs\u2019 amended complaint asserts that the symbolism of the Chief\u2019s performances is discriminatory, and it is that symbolism which the plaintiffs assert creates a hostile environment.\nBecause 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 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, 91 L. Ed. 2d 49, 59-60, 106 S. Ct. 2399, 2405-06 (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, 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).\nIn this case, the Native American plaintiffs have alleged subjective feelings of embarrassment and humiliation by the Chiefs 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\u2019s 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 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\u2019s programs or activities. For this reason I am of the opinion that the plaintiffs\u2019 amended complaint fails to state a cause of action under section 5 of the Civil Rights Act.\nThe trial court dismissed this action based on the grounds addressed by Justice Wolfson. However, the defendants raised the amended complaint\u2019s 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\u2019s 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\u2019s judgment.\nJUSTICE HALL, dissenting:\nI respectfully dissent. I am not as confident as my colleagues that plaintiffs\u2019 amended complaint fails to state a cause of action under the Illinois Civil Rights Act of 2003 (740 ILCS 23/5(a)(l) (2004)). According to the allegations set forth in the amended complaint, the University\u2019s use of Chief Illiniwek as 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\u2019s services. See Note, Native American Mascots, Schools, and the Title VI Hostile Environment Analysis, 1995 U. Ill. L. Rev. 971, 987.\nA 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\u2019s academic performance. Hayut v. State University of New York, 352 F.3d 733, 745 (2d Cir. 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.\nIn 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., Leslie v. Board of Education for Illinois School District U-46, 379 F. Supp. 2d 952, 963 (N.D. Ill. 2005) (allegations by minority and limited-English-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)(l) (West 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.\nIn 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\u2019 position would not find that the University\u2019s 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.", "type": "concurrence", "author": "JUSTICE HOFFMAN," } ], "attorneys": [ "Richard L. Hutchison, of Hutchison, Anders & Hickey, of Tinley Park, and Kenneth E Dobbs, of Dobbs & Hutchison, of Chicago, for appellants.", "William D. Heinz, Russell J. Hoover, Barry Levenstam, and Wade A. Thomson, all of Jenner & Block, LLI) of Chicago, for appellees." ], "corrections": "", "head_matter": "ILLINOIS NATIVE AMERICAN BAR ASSOCIATION (INABA) et al., Plaintiffs-Appellants, v. THE UNIVERSITY OF ILLINOIS, by its Board of Trustees, et al., Defendants-Appellees.\nFirst District (2nd Division)\nNo. 1\u201406\u20140290\nOpinion filed September 19, 2006.\nHOFFMAN, J., specially concurring.\nHALL, J., dissenting.\nRichard L. Hutchison, of Hutchison, Anders & Hickey, of Tinley Park, and Kenneth E Dobbs, of Dobbs & Hutchison, of Chicago, for appellants.\nWilliam D. Heinz, Russell J. Hoover, Barry Levenstam, and Wade A. Thomson, all of Jenner & Block, LLI) of Chicago, for appellees." }, "file_name": "0321-01", "first_page_order": 339, "last_page_order": 351 }