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Recent Court and Agency Decisions
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Anti-Bullying Policies, Tort Immunity Act
Castillo v. Board of Educ. of the City of Chicago, 2018 IL App (1st) 171053 (4-24-18).
Student Elizabeth Castillo (Castillo) and her family sued the district after Castillo was physically attacked by another student, Estrella Martinez (Martinez) off-campus. Castillo alleged that the district: 1) failed to discipline Martinez for her on-campus harassment of Castillo, in violation of the School Code’s bullying prevention statute, and 2) failed to prevent Martinez’s off-campus attack when it should have taken “supervisory” actions, such as calling Castillo’s parents or the police, or allowing Castillo to remain at school to avoid Martinez.

Castillo’s failure to discipline claim involved Section 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act, 745 ILCS 10-2-201), which applies to public employees performing discretionary functions. The Court noted that the School Code’s bullying prevention statute “only mandates that every school district create a policy on bullying; it does not mandate that a school respond to a particular instance of bullying in a particular way.” Because implementation of the district’s anti-bullying policy required both discretion and decision making by school officials, the Court found that the district was immune under Section 2-201 of the Tort Immunity Act.

Castillo’s failure to prevent claim involved Section 4-201 of the Tort Immunity Act (745 ILCS 10/4-201), which provides that neither a public entity nor its employees are liable for failure to provide police protection service. Illinois courts have repeatedly held that school officials are immune from suit when a student is harmed off-campus, even if school officials knew that violence was likely. Castillo attempted to distinguish her case by arguing she did not allege the district should have acted in the role of police to prevent Martinez’s attack, but that it should have protected her through “supervisory” actions. The Court did not buy this argument, stating there is no case distinguishing Castillo’s suggested actions as “supervisory” instead of “police,” and that the “supervisory” actions Castillo suggested could “inevitably slide into the area of school discipline,” which is covered by Section 2-201 immunity.

Age Discrimination in Employment Act
Kleber v. CareFusion Corporation, 2018 WL 1959662 (7th Cir. 2018)
In 2014, Dale Kleber, an experienced attorney, applied for a senior counsel position with CareFusion Corporation, a healthcare company. The job posting for the position stated that applicant must have “3 to 7 years (no more than 7 years) of relevant legal experience.” Despite being otherwise well-qualified, Mr. Kleber was not selected for an interview, and the company eventually filled the position with a 29-year-old applicant. He filed an EEOC charge and subsequently, a federal lawsuit, against CareFusion, claiming that the company’s use of a hard cap for years of experience violated the Age Discrimination in Employment Act (ADEA) because it had a disparate impact on qualified applicants over the age of 40. CareFusion claimed the lawsuit should be dismissed because the language of the disparate impact provision of the ADEA refers to “employees,” but not specifically to “applicants.” The Seventh Circuit denied CareFusion’s motion to dismiss the ADEA claim, finding that the ADEA language and overall legislative purpose of the ADEA were broad enough to cover Mr. Kleber’s claim. The disparate provision of the ADEA states that it is unlawful for an employer to “limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.” Specifically, the court found that the maximum experience requirement in CareFusion’s job posting was a classification that that deprived or tended to deprive Mr. Kleber from having status as an employee at the company, because of his age. In light of this decision, school districts, as employers covered by the ADEA, should evaluate their hiring practices to determine if they will have a disparate impact on applicants over the age of 40. If such an adverse impact exists, the practice is only permissible under the ADEA if it is justified by a “reasonable factor other than age.” 26 C.F.R. 1625.7. Consult the board attorney for advice on specific practices.

First Amendment Establishment Clause
Freedom from Religion Foundation v. Concord Community Schools, 885 F.3d 1038 (7th Cir. 2018)
In 2015, the Freedom from Religion Foundation brought suit against Concord Community Schools, claiming that its annual “Christmas Spectacular” holiday show, in which hundreds of students participated, violated the First Amendment’s Establishment clause. Originally, the first half of the show consisted of non-religious pieces, but the second half of the show contained a 30-minute segment called the “Story of Christmas,” which included religious songs, the reading of New Testament passages, and student actors who posed for a nativity scene. At the lower district court level, Concord volunteered to make two changes to the program, including removing the scriptural reading from the nativity scene and adding a Hanukah and Kwanzaa song at the beginning of the second half of the show. The lower court did not find these proposed edits to be adequate, and enjoined Concord from performing the proposed version of the show. After that ruling, Concord again modified the second half of the show. Specifically, the first 10 minutes of the second half was spent explaining and performing a song for Hanukah and another song for Kwanzaa. For the remaining 20 minutes, students performed Christmas songs that were more religious in nature. During one of the songs, a nativity scene appeared on stage for two minutes, but mannequins instead of student actors were used for posing, and there were no scriptural readings. The Freedom from Religion Foundation challenged this latest version, but the Seventh Circuit found that the show had been changed enough such that it no longer violated the Establishment Clause. First, the court noted that the religious nature of the nativity scene and songs did not come off as an endorsement of religion because they only made up a fraction of the Spectacular, and the first half of the show was secular in nature. Second, the court found that there was no religious coercion in the performance; there was no prayer or distribution of religious literature, and the show was performed in a school auditorium rather than a church or other sanctuary. Finally, the court held the Spectacular did not have an unlawful religious purpose because its primary purposes were to provide opportunities for performing arts students and entertainment at a winter concert. The court acknowledged this was a close case, but considering the entire context, the show was able to pass constitutional muster.

Public Body Must Disclose Wage and Salary Information of Public Employees
Public Access Opinion 18-005
The City of Nashville (City) violated FOIA when it refused to disclose the names, titles, and wages and salaries paid to its employees for 2016 and 2017 to a FOIA requester. The City denied the FOIA request on the basis that the wage and salary information constituted a clearly unwarranted invasion of privacy under section 7(1)(c) of FOIA. Consistent with other recent PAC opinions, the PAC found that the County’s denial of the request was improper for two reasons. First, Section 2.5 of FOIA states that records relating to the use of public funds are public records subject to inspection and copying by the public funds, the salary and wage information of City employees are paid out of the City’s public funds. Second, the disclosure of the information did not qualify as an unwarranted invasion of personal privacy under Section 7(1)(c) because (1) the public has a significant interest in how much public employees are paid for the performance of their public duties, (2) public employees do not have a reasonable expectation of privacy in the amount of compensation they receive, and (3) there was no other readily available means for the requester to obtain the wage and salary information. The PAC ordered the City to provide the records responsive to the FOIA request.

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

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