Recent Court Decisions

In 2005, Audrey Shanton, a computer lab assistant at St. Charles Community Unit School District 303, and her husband, developed a basic computer program that could track certain student information, such as student attendance, based on reading barcodes. The original program was created outside of work and without the District’s knowledge. In 2008, the District became aware of the program and asked Ms. Shanton if she would regularly update the program for use in the District. Ms. Shanton agreed to do so, albeit informally, and she rewrote and updated the program every year for the District through 2015. In 2015, the District informed her that it no longer wanted an updated program because it was going to use a new commercial program. Ms. Shanton, upon viewing the commercial program, believed it was a reversed engineered version of the derivative program she created in 2008. She sued the District for copyright infringement, claiming she owned the derivatives of the original 2005 program.

The District sought to have Ms. Shanton’s infringement claim dismissed on the basis that the derivative works of her original 2005 program were “works for hire” and belonged to the District. The court considered a number of factors to determine if the works belonged to Ms. Shanton or the District: (1) the hiring party’s right to control the manner and means by which the product is accomplished; (2) the skill required to create the material; (3) the location of the work; (4) the duration of the relationship between the parties; (5) whether the hiring party has the right to assign additional projects to the hired party; and (6) the provision of employee benefits. The court sided with the District and dismissed the infringement claim, finding that although Ms. Shanton maintained close control over the program updates after 2008 and could have rewritten the program off school grounds, it was clear that she was acting as an agent of the District because the program updates were made at the District’s request and on District property, and she received no additional pay for the updates. This case illustrates that works made within the scope of one’s employment belong to the employer, and it appears to be the first case in Illinois to specifically address the work for hire doctrine in the K-12 context. Whether a particular work qualifies as a work for hire is entirely dependent on the particular facts of a situation. Sample PRESS Policy 5:170, Copyright, generally addresses works made for hire and directs the superintendent to manage the development of instructional materials and computer programs authored by employees in the scope of their employment.

The school district had the right to not only discipline student C.E. for racist and derogatory content directed toward specific students that he posted on an Instagram account, but also to discipline other students who commented on and/or “liked” certain posts.

In November 2016, Plaintiff C.E. created an Instagram account and granted access to a group of Albany High School (AHS) students. In March 2017, AHS students and school personnel discovered the account and its contents. The account contained 30-40 posts, many of which targeted AHS students and school personnel with racist and derogatory content, including a picture of an African-American AHS student and an African-American AHS basketball coach with nooses drawn around their necks. The district expelled C.E. and suspended students who had commented on or “liked” C.E.’s posts, as well as one student who had access to the account but never commented on or otherwise responded to it online.

The Court first considered whether the speech at issue was school speech, and found that it was because a “nexus” to the school existed (account followers were mostly school students, the posts featured 10 different students and school personnel, and the posts depicted school activities and were clearly taken on campus). In addition, even though C.E. intended that the Instagram account remain private, it was reasonably foreseeable that the speech would reach the school and create a risk of substantial disruption.

Next, the Court found that because the speech substantially disrupted school and invaded the rights of others, the district appropriately disciplined C.E. and those who commented on or “liked” his posts that targeted specific students. “There is no doubt that these plaintiffs meaningfully contributed to the disruptions at AHS by embracing C.E.’s posts in this fashion” the Court stated.

Notably, the Court did not uphold the discipline of four other students, who had neither approved of nor adopted any content targeting specific individuals within the school. The Court reasoned that “endorsement of speech that is offensive or noxious at a general level differs from endorsement or encouragement of speech that specifically targets individual students.”

This case is not binding in Illinois, however it reflects the increasing trend of courts to recognize the right of school districts to discipline students for certain misconduct that occurs off-campus via social media.

In February 2012, full-time tenured special education teacher Michelle Frakes received an “unsatisfactory” performance rating. Frakes refused to sign the rating, asserting it was unfair, and she formalized her opposition in a written document entitled “Points of Rebuttal.” In the “Points of Rebuttal,” Frakes admitted she needed to improve her performance and classroom management but defended her teaching methods. Frakes was placed on a remediation plan, but before it went into effect she requested and was placed on medical leave due to serious health conditions. Frakes’ unsatisfactory rating placed her and nine other full-time tenured teachers in “Group 2” on the “sequence of honorable dismissal list.” On April 9, 2012 Frakes, along with 54 other teachers, was honorably dismissed in a voluntary reduction in force.

Frakes sued the District in federal court, alleging that her “unsatisfactory” rating and subsequent honorable dismissal interfered with her ability to aid students in exercising their rights under Section 504 of the Rehabilitation Act. The district court granted summary judgement for the District, finding Frakes did not provide evidence that she engaged in protected activity under Section 504. On appeal, in its first time addressing an interference claim under Section 504, the Seventh Circuit Court of Appeals affirmed.

The Court first noted that a Section 504 employment discrimination claim is controlled by the standards of the Americans with Disabilities Act (ADA), so it looked at Frakes’ claim through the ADA anti-interference provision, which provides it is unlawful to “coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on the account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by the ADA.” To prevail on her claim, Frakes would need to demonstrate that: (1) she engaged in activity statutorily protected by the ADA; (2) she was engaged in, or aided or encouraged others in, the exercise or enjoyment of ADA protected rights; (3) the defendants coerced, threatened, intimidated, or interfered on account of her protected activity; and (4) the defendants were motivated by an intent to discriminate. Frakes asserted that she engaged in protected activity when she refused to change her teaching methods in response to the “unsatisfactory” rating, but the Court did not buy her assertion, pointing out that she did not dispute her teaching methods in her “Points in Rebuttal,” nor did she mention her students’ rights or interests at all. The Court succinctly held that “the law protects assertions of rights, not teaching methods. The fact that Frakes taught students who are protected by the ADA does not alone render her teaching ‘protected activity.’”

A County Housing Authority (Housing Authority) violated FOIA by improperly denying the release of recordings of public board meetings in response to a reporter’s FOIA request. On August 23, 2017, a reporter requested, among other items, copies of “all audio recordings taken during Board of Commissioner meetings in 2017.” The Housing Authority denied the request for audio recordings, stating they were preliminary materials exempt from disclosure under FOIA Section 7(1)(f).

The Section 7(1)(f) exemption applies to “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.” Importantly, Section 7(1)(f) is intended to protect the communication process and encourage frank and open discussion before a final decision is made, so only portions that reflect the give and take of the deliberative process may be withheld.

On review, the PAC found that Section 7(1)(f) does not apply to recordings of public meetings because information that is already public knowledge is not within the scope of the deliberative process exemption. Although the verbatim recordings may reflect preliminary discussions of matters pending before the public body, by virtue of the meetings being open to the public their recordings are subject to disclosure. The PAC ordered the Housing Authority to immediately disclose the recordings to the reporter.

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

A Board of Trustees of a village (Board) violated OMA by improperly using Section 2(c)(4) to enter closed session to discuss the conduct of one of its Board members.

Here, the Board member whose conduct was at issue had made racist comments during a May 2017 Board meeting. In response, the agenda for the Board’s August 8, 2017 meeting identified a resolution concerning the Board member’s comments as an item for discussion, however the Board entered closed session for the discussion and cited Section 2(c)(4) of OMA to do so. Section 2(c)(4) allows a public body to enter closed session to discuss “evidence or testimony presented in open hearing, or in a closed hearing where specifically authorized by law, to a quasi-adjudicative body.” Under OMA, a “quasi-adjudicative body” is “an administrative body charged by law or ordinance with the responsibility to conduct hearings, receive evidence or testimony and make determinations based thereon, but does not include local electoral boards when such bodies are considering petition challenges.”

Upon reviewing the closed session verbatim recording of the August meeting, the PAC found that the Board did not consider evidence or testimony – they just discussed a resolution regarding the Board member’s comments. Even if the Board had considered evidence or testimony, they would have done so as a legislative body, so Section 2(c)(4) could not apply.

Because the Board improperly entered closed session to discuss the conduct of one of its members, the PAC ordered the Board to publicly disclose the portion of the closed session verbatim recording containing this discussion.

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