Recent Court Decisions

On June 29, 2018, the U.S. District Court for the Eastern District of Michigan (Court) issued its decision in Gary B. v. Snyder, et al., holding that access to literacy is not a fundamental right. The Plaintiffs in this case were minor children who attend or attended public schools in Detroit, and who alleged that the conditions in their public schools were so poor and so inadequate that they did not receive even a minimally adequate education – specifically, access to literacy. As a result, Plaintiffs claimed they were: (1) deprived of a fundamental right in violation of the Fourteenth Amendment’s Due Process Clause, and (2) disparately treated based on their race in violation of the Fourteenth Amendment’s Equal Protection Clause.

Before getting to the merits of Plaintiffs’ claims, the Court first considered whether they had sued the proper Defendants – the State of Michigan and state officials. Defendants argued they could not be sued because they did not operate Detroit’s public schools and, even if they did, they were immune from suit under the Eleventh Amendment. However, the Court found that Defendants did control Detroit’s public schools because the state had appointed an emergency financial manager for the schools and had eventually designated the schools for supervision by a state school reform/redesign officer. Because the State of Michigan and its officials effectively controlled Detroit public schools, they were appropriately sued by Plaintiffs. Moreover, they did not qualify for Eleventh Amendment immunity.

Looking to the Constitutional questions, the Court reviewed numerous U.S. Supreme Court cases to determine whether access to literacy as a fundamental right had been addressed. Finding that it had not, the Court “cautiously” tried to answer that question itself. The Court acknowledged both that “the conditions and outcomes of Plaintiffs’ schools, as alleged, are nothing short of devastating” and that “literacy – and the opportunity to obtain it – is of incalculable importance.” Even so, the Court reasoned that access to literacy is not a fundamental right because declaring it a fundamental right “requires a finding that neither liberty nor justice would exist absent state-provided literacy access.” The Court held that the Due Process Clause does not demand that a state affirmatively provide each child with a defined, minimum level of education by which the child can attain literacy.

Finally, the Court considered whether Plaintiffs had stated a valid Equal Protection claim. Because access to literacy was not a fundamental right, Plaintiffs’ deprivation of it merely needed to be rationally related to a legitimate government purpose. The Court found that Plaintiffs had not plausibly pled that the government’s decisions were irrational, and so their Equal Protection claim failed. The case was dismissed with prejudice, but Plaintiffs plan to appeal to the Sixth Circuit Court of Appeals.

Lawsuits seeking to have education declared a fundamental constitutional right are not uncommon, however they are usually filed in state court based upon a state’s constitution. In 1996, the Illinois Supreme Court found that “while education is certainly a vitally important governmental function, it is not a fundamental individual right for equal protection purposes, and thus the appropriate standard of review is the rational basis test.” Committee for Educational Rights et al., v. Edgar, 174 Ill.2d 1, at 37 (Ill. 1996).

On June 19, 2018, the Third District Appellate Court of Illinois (Court) found that the Joliet Police Department (Joliet) properly refused to disclose an officer’s disciplinary records which were more than four years old based upon Section 7.5(q) of FOIA (5 ILCS 140/7.5(q)) and Section 8 of the Personnel Records Review Act (“PRRA,” 820 ILCS 40/8).

Here, FOIA requestor Maceo Johnson requested the disciplinary history of one of Joliet’s officers. Joliet denied Johnson’s FOIA request, citing Section 8 of the PRRA, which prohibits employers from releasing to a third party records of disciplinary action which are more than four years old. “Information prohibited from being disclosed under the Personnel Records Review Act” is statutorily exempt from inspection and copying by Section 7.5(q) of FOIA. Johnson, however, argued that the PRRA’s prohibitions do not apply to FOIA requests because Section 11 of the PRRA states that “This Act shall not be construed to diminish a right of access to records already otherwise provided by law, provided that disclosure of performance evaluations under the [FOIA] shall be prohibited.”

Reviewing the interplay of FOIA and the PRRA, and interpreting them so that no word or phrase would be rendered superfluous or meaningless, the Court found that Johnson’s argument failed. “To avoid rendering section 7.5(q) of FOIA wholly meaningless, we find that the prohibition on disclosure of disciplinary records more than four years old, found in section 8 of the [PRRA], is applicable to FOIA requests and that such records are thus exempt from FOIA.”

The Village of Washington Park (Village) violated FOIA by failing to comply with, deny in whole or in part, or otherwise appropriately respond to three FOIA requests. On February 21, 2018, an individual submitted three FOIA requests to the Village seeking certain records pertaining to the Village and its Fire Department. On March 14, 2018, having received no responses from the Village, the Requestor submitted three Requests for Review to the PAC. On March 22, 2018, the PAC forwarded copies of the Requests for Review to the Village, asking the Village if it had received and responded to the Requestor’s FOIA requests and also asking that, if the Village had not yet responded, it do so. The Village did not respond to the PAC’s first letter, so it reached out the Village again, on April 6, 2018. The Village did not respond to the PAC’s second letter, and as of the issuance of this June 26, 2018 binding opinion, the PAC had not received a response from the Village.

The PAC found that the Village violated Section 3(d) of FOIA by failing to respond to the three FOIA requests. The PAC ordered the Village to immediately provide all records in response to the FOIA Requestor, subject only to any permissible redactions under Section 7.

This opinion is binding only to the parties involved and may be appealed pursuant to State law.

The Illinois Department of Corrections (IDOC) violated FOIA by improperly denying a FOIA request as an unduly burdensome repeated request. On November 7, 2017, a ProPublica Illinois Reporter (Reporter) submitted a FOIA request to IDOC seeking various records concerning the Illinois Impact Incarceration Program. On November 27, 2017, IDOC: 1) provided the Reporter with copies of some responsive records; 2) denied other responsive records pursuant to Section 8.5(a) of FOIA (which states a public body is not required to copy a record published on its website but it must notify the requestor that the record is available online and direct the requestor to the website); and 3) stated it did not “maintain or possess additional records responsive to” the Reporter’s request. The Reporter disputed IDOC’s assertion that it did not “maintain or possess” certain responsive records, and she submitted a Request for Review to the PAC on February 2, 2018. The PAC did not review the matter because the Reporter’s Request for Review was more than 60 days after IDOC’s alleged denial, but it suggested the Reporter file a new FOIA request with IDOC.

On March 6, 2018 the Reporter did just that, and on March 12, 2018 IDOC denied the Reporter’s request pursuant to Section 3(g) of FOIA, which permits a public body to deny a request as unduly burdensome if it is a repeat request from the same requestor for the same records that are unchanged or identical to records that were “previously provided or properly denied.” On March 15, 2018, the Reporter submitted a Request for Review to the PAC, disputing IDOC’s assertion that her request was an unduly burdensome repeated request and alleging that IDOC’s response was incomplete because it did not include certain responsive records. The PAC asked IDOC to explain how it searched for responsive records and to specifically address the allegedly missing records. In response, IDOC did not answer the PAC’s questions but instead argued that the basis for its original denials of the Reporter’s first FOIA request were irrelevant and that the only question should be whether the Reporter had previously requested the same records. The PAC did not buy IDOC’s argument, stating that “a public body may only deny a FOIA request as an unduly burdensome repeated request only if it has previously provided the requestor with all of the nonexempt responsive records or properly denied the same FOIA request by the same requester in accordance with FOIA,” so it is necessary to look back to the original request and response to determine whether the public body met that burden.

The PAC found that IDOC failed to demonstrate that it properly denied the Reporter’s March 6, 2018 FOIA request as an unduly burdensome repeated request. The PAC ordered IDOC to thoroughly search for the allegedly missing records and provide any newly-located records to the FOIA Requestor, subject only to any permissible redactions under Section 7.

This opinion is binding only to the parties involved and may be appealed pursuant to State law.

On June 27, 2018, the U.S. Supreme Court (Court) issued its decision in Mark Janus v. American Federation of State, County and Municipal Employees, Council 31, et al. (Janus), holding that public sector agency fee arrangements, also known as “fair share fees”, unconstitutionally violate the First Amendment free speech rights of nonconsenting public-sector employees by compelling them to subsidize private speech on matters of substantial public concern. Fair share fees are the fees which unions collect from non-members pursuant to a provision in a controlling collective bargaining agreement (CBA). The fair share collection was previously permitted by law under the theory that non-members benefit from the CBA the union has with an employer and should not be permitted to “free ride.”

Prior to Janus, fair share fees had been permitted to cover the cost of union activities that benefit non-members – they could not be expanded for use by unions to express political views, to support political candidates, or to advance other ideological causes not germane to the union’s collective bargaining and related duties. In 1977, fair share fees were declared constitutional by the Court in Abood v. Detroit Board of Education (Abood).

The Court’s decision in Janus overturns Abood, under the reasoning that assessing fair share fees violates the First Amendment and Abood was an anomalous decision that erred in concluding otherwise. Notably, the Court further held that “[n]either an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.” In other words, employees must opt in to pay union fees, and the Court held that such agreement “must be freely given and shown by ‘clear and compelling’ evidence.” The Court stated this cannot be met “unless employees clearly and affirmatively consent before any money is taken from them.”

Janus’s implications for public school districts are wide-ranging. As such school boards may want to discuss the potential local implications with their board attorneys. For further information, see Janus v. AFSCME: Implementation Issues for School Boards (June 2018, Published by ICSA) at www.iasb.com/law in the in the section Guidance and Legal Issues.