Recent Court Decisions

The U.S. Supreme Court (Court) considered an appeal from the Third Circuit Court of Appeals (Third Circuit) by Mahanoy Area School District (District). The Court held that while public schools may have a special interest in regulating some off-campus student speech, the special interests offered by the District in this case were not enough to overcome the student’s interest in free expression. As a result, the District violated the student’s First Amendment rights when it suspended her from the junior varsity cheerleading squad for criticizing the cheerleading program in a profanity-laced, off-campus Snapchat post.
 
This case involved B.L., a student in the District’s high school who tried out for the varsity cheerleading squad at the end of her freshman year. She didn’t make the varsity squad but was offered a spot on the junior varsity squad. B.L. didn’t accept this decision gracefully and that weekend, while at a local convenience store with a friend, posted two photos on Snapchat, a social media platform where a user’s posts are only visible to approved friends for a short period of time and then disappear. The first photo showed B.L. and her friend with middle fingers raised and the caption “F--- school f--- softball f--- cheer f--- everything.” The second image was blank but for a caption reading “Love how me and [another student] get told we need a year of jv before we make varsity but tha[t] doesn’t matter to anyone else?” B.L.’s Snapchat friends included other high school students, some also on the cheerleading squad. At least one of these students took pictures of B.L.’s posts and shared them with her mother, a cheerleading squad coach. The images spread, and later that week several cheerleaders approached the coaches, visibly upset by the posts. After discussing the matter with the school principal, the coaches decided to suspend B.L. from the cheerleading squad for her sophomore year because the posts used profanity in connection with a school extracurricular activity and therefore violated team and school rules.
 
B.L. apologized but the District affirmed her suspension, so B.L. filed suit in Federal District Court (District Court). The District Court found that B.L.’s posts did not cause a substantial disruption at school and that the District’s suspension violated B.L.’s First Amendment rights. The District appealed to the Third Circuit, which upheld the District Court’s conclusion. The District then appealed to the Supreme Court. 
 
The Court began by considering its history of student speech caselaw. It was very careful not to disturb the 1969 holding in Tinker v. Des Moines Indep. Comm. Sch. Dist., where the Court found that schools have a special interest in regulating on-campus student speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” The Court noted that schools’ special interests in regulating student speech do not always disappear when that speech takes place off campus, but it also set forth what circumstances may implicate a school’s regulatory interests. These circumstances include: serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices. Despite this list, the Court explicitly stated it was not setting forth “a broad, highly general First Amendment rule stating just what counts as ‘off campus’ speech and whether or how ordinary First Amendment standards must give way off campus” to schools’ needs to prevent substantial disruption. Instead, the Court noted three features of off-campus speech that often distinguish schools’ efforts to regulate it:
 

1. A school will rarely stand in loco parentis when a student speaks off campus.

 

2. From the student speaker’s perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day.

 

3. The school itself has an interest in protecting a student’s unpopular expression, especially when it occurs off-campus, because America’s public schools are the nurseries of democracy and democracy only works if we protect the “marketplace of ideas.”

 
The Court stated that these three features, taken together, “mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished.”
 
Next, the Court considered B.L.’s posts. First it found that though her posts were “crude” and “used vulgarity,” they were entitled to First Amendment protection because they reflected criticism of the rules of B.L.’s community. Second, applying the above-noted features of off-campus speech to B.L.’s posts, the Court found that the circumstances of her posts diminished the school’s interests in regulation. Third, the Court reviewed the school’s interest in teaching good manners and in punishing vulgar language aimed at the school community, but found this interest “weakened considerably” because B.L. spoke outside of school on her own time and because the school presented no evidence of any general effort to prevent students from using vulgarity outside the classroom. Finally, the Court found that B.L.’s posts did not cause substantial disruption at school or within the cheerleading squad. Based on this, the Court affirmed the Third Circuit’s judgment that the District violated B.L.’s First Amendment rights when it suspended her from the cheerleading squad for one year.
 
While this decision leaves Tinker and its progeny intact, districts should remember the three distinguishing features of off-campus speech (listed above) when considering whether to regulate off-campus student speech.

The City of Geneva (City) violated FOIA by denying a request for copies of its correspondence with a third party by alleging such correspondence was exempt from disclosure under Section 7(1)(f) as part of the City’s deliberative process.
 
Requestor submitted a FOIA request to the City seeking copies of “all communications between the City of Geneva and applicant Malone Funeral Home that have taken place after the date of public notice of a hearing for a zoning change at Malones Funeral Home.” The City denied this request under Section 7(1)(f) of FOIA, and Requestor asked the PAC to review the matter.
 
On review, the PAC asked the City to explain the factual and legal bases for applying Section 7(1)(f) of FOIA to the withheld records. Section 7(1)(f) exempts from disclosure “preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated, except that a specific record or relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body.” The City explained that the requested records consisted of comments from the City and its consultants about applications submitted by Malone Funeral Home seeking zoning variations, and it asserted these comments were exempt under Section 7(1)(f) because they were deliberative as they: 1) were intended to allow City officials to freely express ideas to the applicant regarding application deficiencies, City requirements, and/or recommendations; and 2) allowed the applicant an opportunity to revise its application. The PAC noted several court cases emphasizing that Section 7(1)(f) is limited to internal documents and records exchanged with third parties that represent the public body or otherwise do not have any independent interests in the subject of the communications. The correspondence at issue here, however, was not internal nor was it solely among consultants representing the City’s interests. To the contrary – the correspondence was with a third party that had interests independent from the City and stood to benefit from the City’s final zoning application decision. As a result, the correspondence did not fall under the Section 7(1)(f) exemption. The PAC determined the City improperly used Section 7(1)(f) to withhold the requested records and directed the City to immediately provide Requestor with the correspondence.
 
This opinion is binding only to the parties involved and may be appealed pursuant to State law.

The Illinois Appellate Court for the 5th District (Court) considered an appeal from the Circuit Court of St. Clair County (Circuit Court), and held that a sexual abuse complaint brought against Freeburg CCSD No. 70 (Freeburg) in 2014 was not subject to coverage under a claims-made insurance policy effective beginning in 2013 because the complaint involved the same, continuing course of misconduct by the same school official as complaints dating back to 2010.
 
This case involved a coverage dispute pertaining to a claims-made insurance policy (policy) issued by RSUI Indemnity Company (RSUI) to Freeburg from July 1, 2013 through July 1, 2014. RSUI denied Freeburg’s demand for coverage under the policy for an underlying federal lawsuit (Doe 4 action) filed against Freeburg and certain former Freeburg officials. The Doe 4 action was brought by a former Freeburg student who alleged he had been sexually abused and harassed on multiple occasions by a male Freeburg official, Robin Hawkins, from 2007-2009. Hawkins had been employed by Freeburg from 1977 to 2009, up to the point when he committed suicide. Prior to Doe 4, there were three other Doe actions filed against Freeburg alleging Hawkins committed sexual abuse in 1991, from 1994-1996, and from 2005-2008.
 
When the Doe 4 action was filed in 2014, Freeburg demanded RSUI cover it under the policy. RSUI denied coverage, alleging that because Freeburg had been aware of multiple reports and allegations of sexual abuse dating back to 1980, the Doe 4 complaint was part of a “single claim” (starting with Doe 1) made against Freeburg prior to the inception of the policy and therefore it was exempt from coverage. RSUI’s “single claim” provision stated:
 
“All Claims based on, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving the same or related facts, circumstances, situations, transaction or events, or the same or related series of facts, circumstances, situations, transactions or events shall be deemed to be a single Claim for all purposes under this policy and shall be deemed first made when the earliest of such Claims is first made, regardless of whether such date is before or during the Policy Period.”
 
In September 2014, Freeburg brought this lawsuit seeking a declaration that RSUI had a duty under the policy to defend and indemnify Freeburg in the Doe 4 action. Freeburg asserted that the Doe 4 action didn’t arise out of the same or related facts or circumstances as the previously filed Doe actions because each Doe action involved different minor male students at different time periods, and so it was not part of “single claim” and should be covered by RSUI. Following many motions and cross motions for dismissal and summary judgment, the Circuit Court determined that RSUI’s related-claim provision was ambiguous and that RSUI had a duty to defend and indemnify Freeburg in the Doe 4 action in the amount of $1,159,144.37.
 
RSUI appealed, alleging that the Circuit Court erred in finding the policy’s related-claim provision was ambiguous and that the Doe 4 action was a claim first made against Freeburg during the coverage period.
RSUI conceded that its policy language was broad but it asserted that the Doe 4 action was logically connected to the previous Doe actions, rendering all Doe actions a single claim first made against Freeburg before the RSUI policy was effective. The Court agreed with RSUI that its policy provision was not ambiguous, and also found that a plain, ordinary reading of the provision would lead a reasonable person to conclude that the Doe 4 action falls under it. The Court stated that “Claims that involve the same, continuing course of misconduct by the same school officials that culminates in the same type of harm from a common, identified sexual predator, while that predator was an employee of the Freeburg school district is a ‘related series of facts, circumstances, situations, transactions or events’ under any ordinary meaning of the phrase. This is especially true in the context of a claims-made policy, where the triggering event is the filing and service of a complaint, rather than the occurrence date of the alleged misconduct.”
 
Based on this, the Court reversed the Circuit Court’s judgment, vacated its orders, and remanded the order back to the Circuit Court with directions to dismiss two of Freeburg’s claims against RSUI.
 

The Illinois Appellate Court for the 4th District (Court) considered an appeal from the Circuit Court of Sangamon County (Circuit Court), and held that the Bloomington City Council (City Council) improperly invoked the closed session exception for probable or imminent litigation under Section 2(c)(11) of the Open Meetings Act (OMA).
 
In 1986 the cities of Bloomington and Normal entered into an intergovernmental agreement for sharing revenue and expenses, and the agreement was effective until cancelled or revised by mutual agreement. In April 2014, a dispute arose between Bloomington and Normal about the agreement and Bloomington advised Normal that it intended to vote to terminate it. Normal responded that it was willing to discuss a termination plan. On February 20, 2017, the City Council entered closed session to discuss the agreement using OMA’s exception for probable or imminent litigation in Section 2(c)(11). Though the City Council’s attorney reminded the body that its discussion should be confined to options more or less likely to get the City in or out of litigation, the closed session discussion focused on the public relations aspect of terminating the agreement, possible approaches to terminating the agreement, and the economics involved. Neither city had filed suit at this time, and the City Council’s attorney thought litigation “could be plausible.” A week later, the McClean County State’s Attorney wrote to the Illinois Attorney General’s Public Access Counselor (PAC) asking it to review the closed session. On June 6, 2017, the PAC issued a binding opinion finding that the City Council violated OMA by improperly entering closed session without reasonable grounds to believe a lawsuit was more likely than not to be instituted or was close at hand.
 
The City Council appealed the PAC’s decision to the Circuit Court, which reversed the PAC’s binding opinion. The Illinois Attorney General then filed this appeal. Reviewing this matter, the Court found that because there was no litigation pending at the time of the meeting and City Council members didn’t reasonably believe litigation was probable or imminent, the City Council improperly invoked the Section 2(c)(11) closed session exception. The Court also held that even if the City Council had lawfully entered closed session, it violated OMA during closed session because their discussion did not focus on litigation. The Court reversed the Circuit Court’s judgment reversing the PAC’s binding opinion.
 

The Illinois Appellate Court for the 1st District (Court) considered an appeal from the Circuit Court of Cook County (Circuit Court), and held that a public body’s decision to withhold documents in response to a FOIA request is evaluated at the time the body responds to the request.
 
On November 18, 2015, Charles Green (Plaintiff) sent a FOIA request to the Chicago Police Department (CPD) seeking “any and all closed complaint register [CR] files that related to Chicago Police Officers.” When CPD didn’t respond, Plaintiff sued in the Circuit Court, alleging that CPD violated FOIA by failing to produce the requested documents or otherwise respond to his FOIA request. CPD admitted it hadn’t responded to Plaintiff’s FOIA but argued that: 1) several documents or portions of documents were exempt from production because they contained private or personal information, and 2) CPD was barred from producing CR files over four years old due to an injunction issued in an unrelated case, which was in place at the time of Plaintiff’s FOIA request. CPD argued that Plaintiff was only entitled to the CR files that were not subject to the injunction – CR files dated after 2011. The Circuit Court ordered CPD to confer with Plaintiff to determine a schedule for production of the CR files dated from 2011-2015, since those weren’t subject to the injunction, and to produce the files by December 31, 2018. Meanwhile, the Circuit Court held that once the injunction was lifted, CPD could produce the 1967-2011 files to Plaintiff without Plaintiff needing to file another FOIA request. The Circuit Court ordered CPD to produce the 1967-2011 files by December 31, 2020, and CPD appealed.
 
The only issue on appeal was whether the Circuit Court had jurisdiction to order the production of the 1967-2011 records after it had determined that CPD didn’t improperly withhold them at the time they were requested (due to the injunction). Section 11 of FOIA allows any person who is denied access to public records to sue for relief, and subsection (d) gives the court “jurisdiction to enjoin the public body from withholding public records and to order the production of any public records improperly withheld from the person seeking access.” The Court reasoned that Section 11(d) means a court may only order the production of records that were “improperly withheld.” The Court determined it should evaluate CPD’s response to Plaintiff’s FOIA at the time the response was made – November 2015. At this time, the injunction was in place and CPD could not release the 1967-2011 files, so CPD’s decision was proper. The Court held that it was immaterial that the injunction was later vacated because “we evaluate the public body’s decision to withhold documents at the time the body responded to the request.” The Court reversed the Circuit Court’s order, finding CPD did not need to produce the 1967-2011 files.