Recent Court Decisions

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.

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.

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.

The PAC found that the City of Elgin (“City”) violated FOIA when it improperly denied a FOIA request for a private developer’s redevelopment cost budget for a building project in the City. The project was financed in part by tax increment financing monies from the City. The City denied the request under Section 7(1)(g) of FOIA, which exempts from disclosure “trade secrets and commercial or financial information obtained from a person or business where the trade secrets or commercial or financial information are furnished under a claim that they are proprietary, privileged or confidential, and that disclosure. . . would cause competitive harm to the person of business.” 5 ILCS 140/7(1)(g). The City asserted that the developer had given the budget to the city with the implied promise it would be kept confidential, and it generally argued that disclosure of the information would result in competitive harm to the developer and the project because other developers could use the financial information to structure their own developments.

The PAC was unpersuaded by the City’s arguments, finding that it had failed to meet the plain language of the exemption under 7(1)(g). First, the City could not invoke the exemption because there has been no express claim made by the developer that the information was “proprietary, privileged, or confidential.” Second, even if such an express claim of confidentiality had been made, the City failed to provide specific facts or evidence to demonstrate how disclosure of the budget would result in competitive harm, such as identifying the competition the developer or project was facing or describing how certain line items in the budget could be used to a competitor’s advantage in a way that would harm the developer or project. Additionally, the fact that developers could be dissuaded from doing business with the City for fear their trade secrets could be disclosed was not relevant to the 7(1)(g) analysis. The PAC ordered the City to provide a copy of the budget document to the FOIA requester.

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

The PAC found that the City of Joliet (“City”) violated FOIA when it improperly redacted a water customer’s bill in response to a FOIA request dated October 17, 2017. The FOIA requester, Troy Community Consolidated School District #30C, submitted a FOIA request for a copy of a water bill associated with a particular address. (The District was seeking the information to help it discern who was living at an in-district address). The City provided the water bill with certain redactions. It argued that the water customer’s name was exempt from disclosure under Section 7(1)(b) because the name constituted “private information” Section 7(1)(b). Section 2(c-5) of FOIA, in relevant part, defines “private information” as “unique identifiers, including a person's social security number, driver's license number, employee identification number, biometric identifiers, personal financial information, passwords or other access codes, medical records, home or personal telephone numbers, and personal email addresses….home address and personal license plates…” The City specifically claimed that in the context of the water bill, the customer name constituted personal financial information and should be exempt.

The PAC found that the City could not properly assert the private information exemption because an individual’s name is not a unique identifier under Section 2(c-5). The PAC explained that a name is “basic information” and many people can have the same name; it is therefore not “unique.” Additionally, the PAC noted that even if the customer name did constitute personal financial information, bills for water services are public records subject to inspection because they are “records relating to the obligation, receipt, and use of public funds” under Section 2.5 of FOIA, and that section requires disclosure. The PAC ordered the Village to provide a copy of the water bill with the customer’s name unredacted to the FOIA requester.

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