June 2017 ~ Municipal Minute

Thursday, June 29, 2017

Court Upholds PAC Opinion Rejecting Use of "Trade Secrets" Exemption

Thursday, June 29, 2017 Julie Tappendorf

Previously, we reported on a PAC binding opinion finding a village in violation of FOIA for redacting certain financial information from contracts it released under FOIA. The requester had asked for records relating to financial incentives provided to Garth Brooks for a concert he performed at Allstate Arena. The village had provided the records, but redacted the amount of the financial incentives. The requester filed a complaint with the Illinois Attorney General (PAC office), which determined that the village had violated FOIA by redacting information that was not exempt from FOIA, and did not fall into the "trade secret" exemption. The PAC also rejected the village's argument that a local ordinance protected this information from release.

The village appealed the PAC's ruling in court, and just this week an appellate court upheld the PAC's ruling that the village violated FOIA in not turning over the financial information in the requested records. BGA v. Village of Rosemont. The court agreed that the "trade secrets" exemption did not apply to the rent and other financial incentive information within the requested contracts. The court also agreed that the village was preempted from adopting an ordinance that attempted to exempt from public release information that is required to be released under FOIA, stating as follows:

Home rule units have the power to expand the duty to disclose, but they lack authority to exempt from disclosure documents and information for which FOIA mandates disclosure.

As a result, the village was directed to release the information to the requester.

Post Authored by Julie Tappendorf

Freedom of Information

Wednesday, June 28, 2017

Seventh Circuit Finds No Violation of RLUIPA or Illinois RFRA Based on Sprinkler System Dispute

Wednesday, June 28, 2017 Julie Tappendorf

A recent decision from the Seventh Circuit considered whether a municipality violated the Illinois Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Person Act (RLUIPA) by evicting residents of a religious recovery home that lacked a sprinkler system.

In Affordable Recovery Housing v. City of BlueIsland, a faith-based group sought to use a vacant convent as a recovery home for adults suffering from drug and alcohol addiction. However, after the recovery home had already moved in dozens of residents, the municipality notified the recovery home that it was required to install a sprinkler system. The recovery home refused to install the sprinkler system because of the significant cost. The municipality then issued an eviction order, and the residents of the recovery home were forced to move out.

The recovery home filed suit claiming, among other things, that the municipality had violated the Illinois RFRA and RLUIPA. The recovery home argued that the municipality substantially burdened its exercise of religion by evicting the recovery home residents due to the lack of a sprinkler system. While the recovery home subsequently obtained a state license to operate, which did not require the installation of a sprinkler system, the recovery home pursued its claims based on the alleged infringement of its exercise of religion.

The Seventh Circuit rejected the recovery home’s claims. The court found that there was no evidence that the expulsion of the recovery home's residents was attributable to anything other than a legitimate concern for fire hazards based on the lack of a sprinkler system. The court also noted that the recovery home did not claim that the sprinkler system requirement itself burdened its religious exercise, only the expulsion of its residents. As such, the court found that the expulsion of the residents was due to the recovery home's disregard for the sprinkler requirement, and that the whole issue could have been avoided had the recovery home researched the state licensing and operating requirements before it started accepting residents. The court also held that, even if the municipality's fire-safety code could be considered a zoning law subject to RLUIPA's protections, the municipality was not seeking to exclude the recovery home from the municipality's boundaries, and therefore there was no violation of RLUIPA.

Post Authored by Kurt Asprooth, Ancel Glink

Constitutional Issues / Land Use and Environmental

Tuesday, June 27, 2017

Murr v Wisconsin: A Restatement and Complication of the Whole Parcel Rule

Tuesday, June 27, 2017 Julie Tappendorf

As promised, we've put together a more in depth analysis of the U.S. Supreme Court's opinion in Murr v. Wisconsin (the takings case).

No one has ever accused the Supreme Court of making Fifth Amendment regulatory takings law easy to understand. Following this robust tradition, Justice Kennedy penned the latest installment in a head scratching regulatory takings analysis with his majority opinion in Murr.

Murr starts with the purchase of two adjoining properties, Parcel E and Parcel F, in the early 1960s, later conveyed in the mid 1990s. Both parcels sit in the Lower St. Croix River watershed and are both subject to federal and state development regulations that make each lot undevelopable, but through operation of state law, the parcels are merged to make one larger development parcel. Merger rules like this are common and well established across the United States, and this becomes an important factor in Justice Kennedy’s analysis. However, what should have been a fairly straight line from past Supreme Court regulatory takings analysis derived from Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) and Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), becomes a whole new elaboration and analytical framework on Penn Central’s “whole parcel rule”, a point raised in Chief Justice Roberts’ dissent.

Regardless, Murr is still a victory for local governments and balances the inherent tension in the Supreme Court’s regulatory takings analysis between private property rights and government’s ability to promote orderly growth and development; it just does so in a convoluted way. Justice Kennedy’s decision establishes a new analytical framework to determine what is the “denominator” in understanding the property affected by a regulation. Recall, the Supreme Court addressed this issue in Penn Central. The railroad company wanted to build an office tower over Grand Central Station. New York City’s historic preservation requirements prohibited the construction of the tower. Penn Central tried to assert that the City’s regulation resulted in a taking of its air rights above the station. The Court declined to adopt the railroad’s "unbundling" of property rights, explaining that any takings analysis must look at the parcel as a whole. Lucas’ total taking was derived from this formulation, where the challenged regulation leaves no economic value in the property. However, if any part of the property still retains economic value, a taking claim can be defeated.

In the wake of Murr, to understand “What is the proper unit of property against which to assess the effect of the challenged governmental action?” three interrelated factors must be considered:

How is the land defined under state law and what are the reasonable restrictions that affect that development and dispensation of the land?
What are the physical characteristics of the land and the surrounding human and ecological environment?
What is the value of the property under the challenged regulations, particularly with regard to whether the regulated land adds value to the remaining property, such as increased privacy?

Among the questions raised by Murr are whether these factors are in addition to Penn Central’s multi factor analysis or stand independently, only applicable in merger situations?

There are certainly others, but in the immediate aftermath, it is clear Murr preserves local governments ability to define developable areas on parcels of land and preserves the merger tool as a way to accommodate property owners while ensuring for orderly development patterns.

Post Authored by David Silverman, Ancel Glink

Constitutional Issues / Land Use and Environmental

Friday, June 23, 2017

Supreme Court Upholds Government Decision in Murr v. Wisconsin

Friday, June 23, 2017 Julie Tappendorf

BREAKING NEWS FOR LAND USE FOLKS - MURR DECIDED BY USSCT

This morning, the U.S. Supreme Court issued its opinion in Murr v. Wisconsin, a long-awaited land use decision. The Supreme Court upheld the court of appeals ruling that the owners of two "merged" lots did not suffer an unconstitutional "taking" of their property when the government denied their request to allow them to separate the consolidated lots so they could be individually developed. Murr v. Wisconsin, USSCT (decided June 23, 2017)

The Supreme Court analyzed the plaintiffs' takings claim by considering plaintiffs’ property as a whole, cfinding that plaintiffs could not establish a compensable taking because they (1) have not suffered a taking under Lucas, as they have not been deprived of all economically beneficial use of their property and (2) also did not suffer a taking under the more general test of Penn Central.

We will provide a more detailed summary of the Supreme Court's decision next week, including the Court's takings analysis.

Post Authored by Julie Tappendorf

Constitutional Issues / Land Use and Environmental

Prevailing Wage Act Amended Regarding Timing for DOL Publication of Prevailing Wages

Friday, June 23, 2017 Julie Tappendorf

There has been very little legislation being enacted in this term of the Illinois General Assembly, at least to-date - exactly 2 new Public Acts have become effective. One of these deals with the the Prevailing Wage Act.

Local governments know they are obligated to approve a prevailing wage ordinance each June to adopt the prevailing wages that apply to public works projects. The Act also requires the Department of Labor to investigate and ascertain the prevailing wages in the month of June. So, public bodies rely on the DOL to release and publish the prevailing wage rates prior to the public body's enactment of the prevailing wage ordinance. Over the past few years, that's been hit or miss (the DOL didn't even adopt new wage rates in 2016).

Recently enacted legislation (P.A. 100-002) would make it even more difficult for public bodies to comply with the statutory requirements. Although no change has been made to the mandatory June deadline for a local government adopting the prevailing wage ordinance, the Act was modified to give the DOL until August 15th to publish the applicable prevailing wage rates. So, presumably, a public body has to adopt the ordinance in June, but the DOL doesn't have to publish the new rates until August - 2 months after the deadline for local government compliance. There certainly seems to be a disconnect on this one.

You can read the P.A.100-002 here.

Post Authored by Julie Tappendorf

University Violated Free Speech Rights of Student Group Advocating for Changes to Marijuana Laws

Friday, June 23, 2017 Julie Tappendorf

We've seen a lot of First Amendment cases lately, including today's which deals with a university policy regarding use of its logo.

Iowa State University grants student organizations permission to use its trademarks under certain conditions. However, when the student chapter of the National Organization for the Reform of Marijuana Laws (NORML) requested permission to use the school logo in its design that included a cannabis leaf, the school denied the request. Two students sued the school, claiming the decision violated their First Amendment free speech rights. Recently, the Eighth Circuit Court of Appeals issued an opinion ruling in the students' favor in Gerlich v. Leath.

The court of appeals addressed various arguments by the students that the university's policies were unconstitutional. First, the court held that the university's rejection of NORML's logo designs for t-shirts discriminated against the group based on the group's viewpoint - specifically, its stance on marijuana. The court noted that it appeared that the university denied the request because of a fear that the university would be seen a endorsing a political cause. The court rejected the university's argument that this was government speech, finding that the university did not use its student group logo licensing policy to "speak to the public."

In sum, the court determined that the university violated the student group's free speech rights when it denied permission to use the university logo on t-shirts and other messaging by NORML.

Post Authored by Julie Tappendorf

Constitutional Issues

Wednesday, June 21, 2017

Supreme Court Finds Social Media Ban for Convicted Sex Offenders Unconstitutional

Wednesday, June 21, 2017 Julie Tappendorf

For the first time, the U.S. Supreme Court addressed the question whether social media activities (i.e., posting, commenting, etc on social media sites such as Facebook, Twitter, and other sites) are considered "speech" under the First Amendment. In today's case, the Court answered that question yes. Packingham v. North Carolina.

A North Carolina law makes it a felony for a registered sex offender “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.” The law reportedly would apply to about 20,000 people in North Carolina and over 1,000 people have been prosecuted for violating it.

Packingham was convicted under this law for posting the following statement on his personal Facebook profile about a state court dismissed a traffic ticket against him:

“Man God is Good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court cost, no nothing spent. . . . . .Praise be to GOD, WOW! Thanks JESUS!”

He appealed his conviction on the basis that the law violated his First Amendment free speech rights. The case made its way to the U.S. Supreme Court, which ruled in Packingham’s favor this week, striking down the law as unconstitutional.

The Court first determined that the law applies to common social media sites such as Facebook and Twitter. The court noted that social media allows users to gain access to information and communicate with one another, and that the law bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. In the Court's opinion, foreclosing access to social media altogether prevents users (even convicted criminals) from engaging in a legitimate exercise of First Amendment rights.

Although the Court acknowledged that the government can enact specific, narrowly-tailored laws to prohibit sex offenders from engaging in certain social media activities (like contacting a minor or using a website to gain information about a minor), the Court found the North Carolina law too broad because it also prohibited protected First Amendment activities on social media that had nothing to do with keeping sex offenders away from vulnerable victims.

In sum, the Court stated as follows:

[T]o foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.

The concluded that as a general rule, the Government “may not suppress lawful speech as the means to suppress unlawful speech.” … Because that is what North Carolina’s law did, the Court held it was invalid.

Post Authored by Julie Tappendorf

Constitutional Issues / Social Media

Tuesday, June 20, 2017

Occupy Chicago Loses Challenge to Chicago Parks Ordinance

Tuesday, June 20, 2017 Julie Tappendorf

Previously, we reported on an Illinois appellate court ruling that upheld Chicago's ordinance closing public parks between 11 pm and 6 am after a challenge by the Occupy Chicago movement after members were arrested for violating the ordinance. The appellate court had acknowledged that the protesters were exercising their First Amendment rights. However, the court also held that the City had the right to enact regulations on use of its parks, and its hours of operation restrictions were a content-neutral regulation that addressed legitimate governmental concerns about keeping the parks safe.

The members appealed to the Illinois Supreme Court, which issued a ruling last week also finding the ordinance constitutional. City of Chicago v. Alexander, 2017 IL 120350.

The Illinois Supreme Court first addressed the plaintiff's argument that the Illinois constitution provides greater protection for the right of assembly than the U.S. constitution. The Court rejected that argument, finding that the two provisions are "virtually identical in language" and should be interpreted using the same case law precedent.

The Court rejected plaintiff's other arguments, finding that they were waived because they were not raised before.

In conclusion, the Court found that the appellate court applied the proper test in determining that the Chicago ordinance imposing hours of operation restrictions on city parks was constitutional as a valid "time, place, and manner" regulation.

Post Authored by Julie Tappendorf

Constitutional Issues

Monday, June 19, 2017

Township Did Not Violate RLUIPA in Denying SUP for Religious School

Monday, June 19, 2017 Julie Tappendorf

The Sixth Circuit Court of Appeals recently issued an opinion upholding a local government decision to deny a special use permit to a religious school against a challenge that the decision violated RLUIPA (the Religious Land Use and Institutionalized Persons Act). Livingston Christian Sch. v. Genoa Charter Twp.

The school entered into a lease agreement to relocate its operations to the Brighton Nazarene Church in Genoa Charter Township. The school applied for an amended special use permit, which the Township denied by a 4-3 vote. Shortly thereafter, the school sued the Township, alleging that the denial of its special use application violated RLUIPA.

The court of appeals analyzed the school's argument that the denial was a "substantial burden" on the school's religious exercise under RLUIPA. The court noted that to be a substantial burden under RLUIPA, the burden must have some degree of severity - in other words, "not just any imposition on religious exercise will constitute a violation of RLUIPA." In applying this test to the school's claims, the court found that the school had a feasible alternative location, including its former location, and remaining tat that location "would not have imposed a substantial burden" on the school. The court also rejected the school's argument that the denial of its special use application effectively barred it from operating anywhere within the Township's borders, holding that this alone does not constitute a substantial burden. The court noted that when a religious institution has an available alternative outside of the desired jurisdiction, and that location is reasonably close, traveling that distance is not a substantial burden on religious exercise.

Post Authored by Julie Tappendorf

Constitutional Issues / Land Use and Environmental

Friday, June 16, 2017

City Prevails in PSEBA Case

Friday, June 16, 2017 Julie Tappendorf

From Ancel Glink's sister labor and employment blog, The Workplace Report: PSEBA Eligibility Ordinance Upheld by Court.

Recently, an Illinois appellate court addressed the legality of a local ordinance that established an application and hearing process to use in determining whether an employee is eligible for benefits under the Public Safety Employee Benefits Act (PSEBA), an Illinois statute. Englum v. City of Charleston. PSEBA provides that public safety employees, generally police, fire and paramedics, who suffer a catastrophic, career or life ending injury or illness as a result of performing certain duties of their job (generally responding to an emergency), are entitled to lifetime free health insurance to them and their dependents.

Englum challenged the ordinance, alleging that the city did not have authority to adopt procedures under PSEBA. Specifically, he claimed the city exceeded its authority as a non-home rule municipality. The Fourth District Appellate Court disagreed. It held that because the PSEBA statute itself required benefits to be paid to eligible employees, but did not provide a procedure to determine eligibility so that the statute itself did not limit an employer’s authority to create a benefit application process. Furthermore, the court found that the Illinois Municipal Code allows municipalities to enact ordinances “in regard to the relation between all municipal officers and employees in respect to each other, the municipality and the people.” Award of PSEBA benefits, according to the court, involves not only the relation between municipal officers and employers, but also taxpayers, as they will ultimately fund the benefit.

This decision is important because it confirms the authority of municipalities to establish an orderly and uniform process for determining PSEBA eligibility, which can be an extremely contentious issue for both sides. Municipalities, whether home rule or non-home rule, should consider enacting an ordinance for the orderly determination of PSEBA benefits.

For a more detailed summary about the case, visit The Workplace Report.

Post originally authored by Margaret Kostopolus, Ancel Glink

Disclaimer: Ancel Glink represented the City of Charleston in this case.

Tuesday, June 13, 2017

PAC Addresses "Deliberative Process" and "Attorney-Client" Exemptions in 2 FOIA Opinions

Tuesday, June 13, 2017 Julie Tappendorf

Yesterday, the Public Access Counselor (PAC) of the Illinois Attorney General's office issued 2 binding opinions finding public bodies in violation of FOIA.

In PAC Op. 17-005, a requester filed a FOIA request seeking traffic counts from roadway monitoring operations at specific roads. The village denied the request, asserting that the traffic counts were "drafts" that had not been publicly released and were exempt under 7(1)(f). The PAC rejected the village's explanation for the denial, finding that "purely factual material" is not exempt under section 7(1)(f) of FOIA. In this case, the PAC determined that the statistical data requested by the requester did not reveal the village's reasoning or decision-making process, so it fell outside the "deliberative process exemption" even if the data was subject to later revision.

In PAC Op. 17-006, a reporter asked for records showing job titles, locations, and number of employees that the Department of Corrections considers "essential," meaning they would be required to work in the event of interruption in state funding to the Department. The Department denied the request, first citing 7(1)(f) (deliberative process) and then later citing 7(1)(m) (attorney-client communication).

First, the PAC noted that the Department failed to provide a detailed factual basis for the exemption, as required by section 9(a) of FOIA, and failed to provide records to the PAC for confidential review under section 9.5(c) of FOIA.

Second, the PAC rejected the Department's use of the "attorney-client" exemption, and its argument that the determination of whether an employee is "essential" is a legal analysis that falls under the attorney-client privilege under section 7(1)(m) of FOIA. The PAC found that the Department failed to provide any support for its argument that these records constituted a communication between the Department and its attorney or that they were materials created in preparation for trial.

The PAC also rejected the Department's reliance on the "deliberative process" exemption, finding that the Department failed to provide support for its argument that the records express opinions or formulate policies.

Post Authored by Julie Tappendorf

Freedom of Information

Monday, June 12, 2017

County's Public Forum Policy Unconstitutional

Monday, June 12, 2017 Julie Tappendorf

The Higher Society of Indiana wanted to hold a rally at the Tippecanoe County Courthouse, and applied for a permit from the County Board of Commissioners. The County denied the permit, and the organization brought a federal lawsuit claiming the denial violated the group's First Amendment rights. In a recent 7th Circuit Court of Appeals decision, the court agreed with the group and granted its request for an injunction. Higher Society of Indiana v. Tippecanoe County (7th Cir. June 7, 2017)

In 1999, after a controversy about a nativity scene at the courthouse, the County Board had voted to declare the courthouse grounds a "closed forum," and adopted a policy that only displays and events sponsored and prepared by county government would be allowed. After adopting the policy, the County approved a variety of events to take place on the courthouse grounds, including an art fair, a League of Women Voters event, a Fraternal Order of Police event, among others. Still other groups held events without obtaining County permission, including Planned Parenthood, Greater Lafayette Moms in favor of Gun Sense, and others.

In Court, the County conceded that its policy was not viewpoint neutral, but argued that its policy only allowed government speech, which the County could legally control. The Court rejected the County's argument, however, citing the various events that the County did approve or that did take place that were not traditional government speech, and instead fell within private speech similar to Higher Society's proposed rally.

Post Authored by Julie Tappendorf

Constitutional Issues

Thursday, June 8, 2017

PAC Finds City Council in Violation of OMA for Closed Session

Thursday, June 08, 2017 Julie Tappendorf

In its 4th binding opinion of 2017, the PAC found a municipality in violation of the Open Meetings Act for improperly discussing an intergovernmental agreement in closed session. PAC Op. 17-004.

A city council had gone into closed session at one of its meetings to discuss an intergovernmental agreement with an adjacent municipality. The agreement would provide for the sharing of revenues and expenditures in a designated commercial and industrial area adjacent to both communities. The county states attorney filed a request for review with the PAC questioning whether the city council's reliance on the "pending or probable" litigation exception was appropriate.

The PAC determined that the evidence did not support the city council's use of the litigation exception. Specifically, the PAC noted that the newspaper had reported that no lawsuit was pending and that the mayor had stated that that he did not expect a lawsuit to be filed. Citing an Attorney General's opinion from 1983, the PAC concluded that the city council did not have reasonable grounds to believe a lawsuit was more likely than not to be instituted or was "close at hand." Although the city council had complied with the OMA requirement of citing the exception and entering into the closed session minutes a specific basis for a finding that litigation was probable, the PAC nonetheless found the basis insufficient to justify the closed session and found the city council in violation of the OMA.

Post Authored by Julie Tappendorf

Wednesday, June 7, 2017

Failure to Formally Accept a Public Dedication Leads to Property Dispute

Wednesday, June 07, 2017 Julie Tappendorf

In J&A Cantore LP v. The City of Elmhurst, 2017 Ill App 2d, 160601, a property owner claimed ownership in a disputed portion of real estate of approximately 58 feet in width, and located immediately adjacent to the owner's parcel. The owner had fenced and used the property for more than twenty (20) years and claimed ownership by adverse possession.

The City of Elmhurst disputed the owner's claim to the 58 foot wide parcel because adverse possession does not run against property held for public use. Elmhurst alleged it had acquired a fee interest in the disputed parcel in 1925 when H.O. Stone Addition was platted and recorded. The 1925 Plat showed the disputed parcel as West Avenue.

To complete a statutory dedication, a municipality must accept the dedication. Acceptance can either be expressed or implied. An express acceptance is shown by direct municipal action, such as an Ordinance or Resolution stating acceptance. An implied acceptance is based on municipal acts recognizing the street and treating it as public. Acceptance may come a reasonable time after dedication and is valid as long as it occurs prior to withdrawal or revocation of the dedication.

In this case, the court held that the City of Elmhurst had failed to take express action accepting the dedication of the streets shown on the 1925 Subdivision Plat. The court, however, found that the City had accepted the dedicated streets by implication. The court found sufficient evidence of donative intent on the Plat, despite the absence of express language dedicating the roads to the public, to conclude that the parcel had been dedicated to the City. The court pointed to the number of streets shown on the Plat and that the individual lot lines did not encompass the street areas. Also, the Plat was an addition to the City of Elmhurst, thereby evidencing a donative intent to the City. In addition, the City had taken action to improve most of the streets in the 1925 Subdivision. The City had also taken action to vacate some of the streets shown on the 1925 Plat. Moreover, the City leased the disputed parcel to the Elmhurst Park District in 1983 for trail purposes and open space. All of these acts showed acceptance of the dedication by the City. Although some of these acts occurred many decades after dedication of the roadway, the court found such acceptance was still valid because there had been no withdrawal or revocation of the dedication.

Finally, the court concluded that Plaintiff’s claim of ownership by adverse possession did not apply because the City of Elmhurst acquired ownership of West Avenue and the property was being used for a public purpose. Adverse possession does not run against property being held for public purposes. The court stated that the City, as fee owner of West Avenue, had the right to re-enter the property and use it for public street purposes.

Municipalities are best served by promptly accepting a dedication of property by formal council action. Such express action would avoid a future dispute over ownership, such as occurred in the Cantore case.

Post Authored by Steve Mahrt, Ancel Glink

Land Use and Environmental

Friday, June 2, 2017

Employees & Social Media: A Continued Lesson

Friday, June 02, 2017 Julie Tappendorf

There has been quite a bit of press this week on social media posts that have gotten people in hot water. Kathy Griffin's tweet about the President was just one of many making headlines this week. Another involved a reporter who tweeted the following after the finish of the Indy 500:

Nothing specifically personal, but I am very uncomfortable with a Japanese driver winning the Indianapolis 500 during Memorial Day weekend.

According to news reports, the Denver Post reporter was terminated for what the newspaper called a "disrespectful and unacceptable tweet."

If you read some of the comments to news reports of persons being terminated for their social media activities, you will find some who argue that an employee cannot and should not be fired for exercising the employee's First Amendment rights. The problem with that argument is that the First Amendment does not protect all speech. It also does not protect the speaker from the consequences of his or her "speech" or in this case, social media activities. What we learn from these stories is that employees do not have an absolute right to say what they want on social media and they can (and have been) fired for inappropriate social media conduct.

Post Authored by Julie Tappendorf

Personnel / Social Media

Thursday, June 1, 2017

7th Circuit Rules in Favor of Transgender H.S. Student

Thursday, June 01, 2017 Julie Tappendorf

On May 30th, the Seventh Circuit Court of Appeals ruled in favor of a transgender teen who challenged a Wisconsin school district's policy denying the teen access to the boys' restroom. Whitaker v. Kenosha Unified S.D. #1 (7th Cir. May 30, 2017).

The plaintiff, a 17 year old high school senior, had requested permission from the school district to use the boys' restroom. The school district denied the student's request, claiming that it would invade the privacy rights of male classmates. The student filed suit against the school district, alleging that its bathroom policy violated Title 9 and the Equal Protection Clause of the U.S. Constitution. The student also sought preliminary injunctive relief from the court to allow the student access while the case was pending. The district court granted injunctive relief to the student, and the school district appealed to the 7th Circuit.

On appeal, the 7th Circuit reviewed the facts of the case. The Court noted that the student's birth certificate identified the teen as a female, but at 13, began to openly identify as a boy. A year after transitioning, the student requested permission to use the boys' restroom, but the school district decided only to allow use of either the girls' restroom or a gender-neutral restroom in the main office.

In considering the school's appeal, the Court first found that the student was likely to suffer irreparable harm from the district's bathroom policy because (1) use of the boys' restroom was, according to expert opinions, integral to the student's transition and emotional well-being and (2) the district's alternative of using a gender-neutral restroom was not adequate because it was far from the student's classrooms and invited attention from classmates.

The Court also found that the student was likely to succeed on the Title 9 sex discrimination claim because the school district's bathroom policy subjected the transgender student to "different rules, sanctions, and treatment than non-transgender students" and the district's provision of a gender-neutral alternative was not sufficient to relieve the district from liability under Title 9, particularly where the student was the only one provided access.

The Court rejected the school district's argument that the purpose of the policy was to protect other students' privacy rights, finding that a "transgender student's presence in the restroom provides no more of a risk to other students' privacy rights than the presence of an overly curious student of the same biological sex who decides to sneak glances at his or her classmates performing their bodily functions."

Moreover, the Court questioned the school district's argument that the true indicator of a person's gender is the identifier on the individual's birth certificate, noting that in Wisconsin a birth certificate cannot be changed unless the individual has completed a surgical reassignment.

Finally, the Court found that the school had not demonstrated it would suffer any harm from having to comply with the court's preliminary injunction order, nor did the district provide any evidence that students complained about the student's use of the boys' restroom, or that it violated their privacy.

Post Authored by Julie Tappendorf

Constitutional Issues

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