                                                                SECOND DIVISION
                                                                September 19, 2006




No. 1-06-0290

ILLINOIS NATIVE AMERICAN BAR                             )      Appeal from the
ASSOCIATION (INABA), an Illinois                         )      Circuit Court of
Non-for-Profit Corporation, STEPHEN                      )      Cook County.
NARANJO, a University of Illinois                        )
at Chicago student; ROGER FONTANA,                       )
a Champaign resident; BESS VAN ASSELT,                   )
a University of Illinois at Champaign                    )
Urbana student; JOHN LOW, an enrolled                    )
Potawatomi; and TOM CAFCAS, a                            )
University of Illinois at Champaign-                     )
Urbana student,                                          )
                                                         )
       Plaintiffs-Appellants,                            )
                                                         )
              v.                                         )
                                                         )
THE UNIVERSITY OF ILLINOIS BY ITS                        )
BOARD OF TRUSTEES and TRUSTEES DAVID                     )
DORRIS, KENNETH D. SCHMIDT, FRANCES                      )
G. CARROLL, LAWRENCE C. EPPLEY,                          )
MARJORIE E. SODERMANN, ROBERT F.                         )
VICKREY, DEVON C. BRUCE, NIRANJAN S.                     )
SHAH, ROBERT Y. SPERLING, NATALIE A.                     )
GARCIA, ANDREW M. HOLLINGSEAD, and                       )
MATTHEW T. DILLER, in their official                     )      Honorable
capacity,                                                )      David R.
                                                         )      Donnersberger,
       Defendants-Appellees.                             )      Judge Presiding.

       PRESIDING JUSTICE WOLFSON delivered the opinion of the

court:

       At some point during the halftime of University of Illinois football games Chief

Illiniwek performs a certain dance. The plaintiffs filed a lawsuit against the University,

contending the performance violates the Illinois Civil Rights Act of 2003. They ask for a

declaratory judgment, damages, and an injunction ordering a stop to the performance
1-06-0290

and barring any University use of Chief Illiniwek, whom the plaintiffs refer to as a "sports

mascot," while the defendants describe him as a "symbol."

       Defendants filed a motion to dismiss, contending the Illinois legislature

specifically approved the University=s continued use of the Chief when it passed a 1996

amendment to the University of Illinois Act declaring Chief Illiniwek an "honored symbol"

of the University. Plaintiffs contend the Illinois Civil Rights Act cannot be reconciled with

the 1996 statute, and, they say, the Civil Rights Act controls.

       The trial court found no conflict between the two statutes. It dismissed plaintiffs=

complaint. It did not address the question of whether discrimination occurred. We

affirm the trial court.

FACTS

       The first Chief Illiniwek performance took place during halftime of an Illinois-

Pennsylvania football game in 1926. B. Crowley, Resolving the Chief Illiniwek Debate:

Navigating the Gray Area Between Courts of Law and the Court of Public Opinion, 2

DePaul J. Sports L. & Contemp. Probs. 28, 32 (2004). Chief Illiniwek performs a type of

"fancy dancing," which employs a double step, intricate footwork, and spinning

movements. 2 DePaul J. Sports Law at 32. It is a considerably faster style of dance

than traditional Indian dances. 2 DePaul J. Sports Law at 32. The dance is part of a

performance known as the "Three in One," consisting of three songs. 2 DePaul J.

Sports Law at 32.

               "The first is called >Pride of the Illini= and is performed while

               the Marching Illini band marches toward the north end zone

                                               2
1-06-0290

              in an >I= formation. This song carries a traditional marching

              beat. Chief Illiniwek then weaves his way through the band

              and emerges at midfield as the band spreads out into an >I-L-

              L-I-N-I= formation and performs his dance to the tune of the

              second song, >March of the Illini,= which carries a tom-tom

              beat. At the conclusion of the dance, the Chief stands at

              midfield with his arms folded across his chest as the fans

              sing >Hail to the Orange,= the university alma mater. At the

              conclusion of >Hail to the Orange,= Chief Illiniwek exits the

              field with the band as >March of the Illini= is being played." 2

              DePaul J. Sports Law at FN 18.

       Plaintiffs= "Amended Complaint for Declaratory and Injunctive Relief as to the

Sports Mascot Chief Illiniwek" was brought under the Illinois Civil Rights Act of 2003.

Pursuant to the Act, a unit of state, county, or local government in Illinois may not:

              "(1) exclude a person from participation in, deny a person

              the benefits of, or subject a person to discrimination under

              any program or activity on the grounds of that person=s race,

              color, or national origin; or

              (2) utilize criteria or methods of administration that have the

              effect of subjecting individuals to discrimination because of

              their race, color, or national origin.

              (b) Any party aggrieved by conduct that violates subsection

                                               3
1-06-0290

              (a) may bring a civil lawsuit, in a federal district court or State

              circuit court, against the offending unit of government. Any

              State claim brought in federal district court shall be a

              supplemental claim to a federal claim***" 740 ILCS 23/5(a)

              (2004).

       Seven years earlier, the General Assembly enacted section 1f of the University of

Illinois Act, which provides:

              "Consistent with a long-standing, proud tradition, the General

              Assembly hereby declares that Chief Illiniwek is, and may

              remain, the honored symbol of a great university, the

              University of Illinois at Urbana-Champaign." 110 ILCS

              305/1f (West 1996).

       The plaintiffs allege the members of the Illinois Native American Bar Association

(INABA) "suffer personally and professionally from the racist policy of the University in

allowing the use of Chief Illiniwek as a sports mascot."

       They allege plaintiffs Stephen Naranjo, a Santa Pueblo, New Mexican Indian

enrolled at the University of Illinois at Chicago, and Roger Fontana, a Cherokee

descendant and a resident of Champaign, Illinois, feel "humiliated, embarrassed and

discriminated against when [their] heritage is reduced to a half-time sporting event

entertainment by Chief Illiniwek performances" and feel "that the image of Chief Illiniwek

is inaccurate and demeans their culture and race."

       Bess Van Asselt, a student at the University, "has been harassed and humiliated

                                              4
1-06-0290

by persons that support the perpetuation of Chief Illiniwek as a sports mascot ***,"

causing her to feel isolated and alienated within her dorm to the degree that she

withdrew from her residential contract and moved.

       John Low, a member of the Potawatomi Tribe and a student at the University of

Michigan, decided to study at Michigan rather than Illinois "as a result of the hostile

atmosphere against Native Americans at the University of Illinois arising out of the Chief

Illiniwek controversy."

       Tom Cafcas, a student at the University whose family traces back to the Iroquois,

"considers the Anglo-American construction of Chief Illiniwek to be a reminder of how

exploitation and distortion of Native American culture and religion is woven into

institutions like the University of Illinois without concern for the damage done to Native

American students."

       Among other things, plaintiffs allege:

              "Chief Illiniwek=s half-time performances at University of

              Illinois football and basketball games are false, misleading

              and demeaning characterizations of Native Americans and

              their culture."

                                     ***

              "The Chief=s performances at sporting events is [sic]

              insulting, demeaning, humiliating and discriminates against

              Native Americans and Native American students at the

              University of Illinois."

                                                5
1-06-0290

                                 ***

            "The Plaintiffs, Native American students, and those that

            associate with them, are effectively barred from attending

            University of Illinois sporting events where Chief Illiniwek

            performs because to attend would be humiliating and

            demeaning."

                                 ***

            "The Defendants knowingly have exploited Native Americans

            by profiting from the perpetuation of false, misleading and

            demeaning images of Native Americans in the form of Chief

            Illiniwek."

                                 ***

            "The Defendants= use of Chief Illiniwek as a mascot at

            sporting events is a catalyst for students and others to

            imitate Chief Illiniwek on and off campus."

                                 ***

            "The Defendants= use of Chief Illiniwek as a mascot creates

            a hostile, demeaning and discriminatory environment for

            Native Americans on campus."

                                 ***

            "When students and others imitate Chief Illiniwek on campus

            and elsewhere, it is humiliating, demeaning and

                                           8
1-06-0290

               discriminates against Native American students that attend

               the University of Illinois, because it subjects them to

               disparate treatment and deprives them of an education that

               is free from humiliation and harassment."

       Plaintiffs seek the following relief: (1) a judicial declaration that the Chief Illiniwek

"mascot" is demeaning and discriminatory to Native Americans and violates the Illinois

Civil Rights Act; (2) temporary and permanent injunctive relief enjoining the University

from continuing to use Chief Illiniwek as a "sports mascot" and from allowing

"entertainment" performances by the Chief at University events; and (3) damages and

attorney=s fees and costs.

       The defendants= motion to dismiss plaintiffs= amended complaint for failure to

state a claim contends: (1) the Illinois Civil Rights Act should not be construed to

prohibit the University=s use of Chief Illiniwek because it would improperly invalidate

section 1f of the University of Illinois Act; (2) plaintiffs= allegations are insufficient to state

a claim for discrimination under the Civil Rights Act; and (3) the Civil Rights Act

authorizes civil suits only against the "offending unit of government," not against

individuals.

       The trial court granted the defendants= motion to dismiss, finding there was no

conflict between the statutes, that the legislature specifically authorized the University=s

use of the Chief as its symbol or mascot. The court declined to consider defendants=

additional arguments for dismissal, but noted plaintiffs may not sue individual trustees

under the Illinois Civil Rights Act. 740 ILCS 23/5(b) (West 2004).

                                                9
1-06-0290

DECISION

       A motion to dismiss challenges the legal sufficiency of a complaint by alleging

defects on its face. 735 ILCS 5/2-615 (West 2000). In reviewing the sufficiency of a

complaint, we accept as true all well-pleaded facts and all reasonable inferences that

may be drawn from those facts and construe the allegations in the light most favorable

to the plaintiff. City of Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d 351, 364, 821 N.E.2d

1099 (2004). Our review is de novo. Beretta, 213 Ill. 2d at 364.

       Plaintiffs contend the two statutes at issue are irreconcilably conflicting and ask

this court to decide which statute controls. They say the Illinois Civil Rights Act relates

to discrimination and civil rights, while the University of Illinois Act is silent on those

subjects. Because the statutes are not governed by the same spirit or policy and do not

relate to the same subject, plaintiffs contend the two provisions cannot be harmonized.

Furthermore, when the legislature passed the Illinois Civil Rights Act in 2003, it is

presumed to have been aware of section 1f of the University of Illinois Act, passed in

1996. Yet, the legislature did not include an exception in the Civil Rights Act allowing

the University to "discriminate against Plaintiffs through the use of an >Indian= mascot,

Chief Illiniwek." As the later and more specific statute, the Civil Rights Act should

control, plaintiffs say.

       The plaintiffs rely on the Illinois Supreme Court=s decision in State v. Mikusch,

138 Ill. 2d 242, 562 N.E.2d 168 (1990). In Mikusch, several secretary of state

investigators were forced to retire at age 60 under section 2-115 of the Vehicle Code.

The Vehicle Code had been amended on June 20, 1979, to mandate retirement for any

                                              10
1-06-0290

investigator after reaching the age of 60. Mikusch, 138 Ill. 2d at 245-46; Ill. Rev. Stat.

1981, ch. 95 1/2, par. 2-115. The investigators filed suit under the Human Rights Act,

enacted on November 8, 1979, which prohibits discrimination in employment because of

age. Ill. Rev. Stat. 1981, ch. 68, par. 1-101 et seq. At that time, "age" was defined as

"the chronological age of a person who is 40 but not yet 70 years old." Ill. Rev. Stat.

1981, ch. 68, par. 1-103(A). The court set out general rules of statutory construction we

apply in this case:

              "The fundamental rule of statutory construction, of course, is

              to give effect to the intent of the legislature. [Citation.] In

              seeking to ascertain legislative intent, courts consider the

              statutes in their entirety, noting the subject they address and

              the legislature=s apparent objective in enacting them.

              [Citation.] It is presumed that the legislature, in enacting

              various statutes, acts rationally and with full knowledge of all

              previous enactments. [Citation.] It is further presumed that

              the legislature will not enact a law which completely

              contradicts a prior statute without an express repeal of it and

              that statutes which relate to the same subject are to be

              governed by one spirit and a single policy. [Citations.]"

              Mikusch, 138 Ill. 2d at 247-48.

       The court rejected the Secretary=s argument that section 2-115 could be

harmonized with the Human Rights Act by reading section 2-115 as an exception to the

                                              11
1-06-0290

Human Rights Act. The expression of certain exceptions in a statute will be construed

as an exclusion of all others. Mikusch, 138 Ill. 2d at 250. The detailed list of exceptions

in the Human Rights Act did not include one allowing the mandatory retirement of

Secretary of State investigators. Mikusch, 138 Ill. 2d at 250. The two statutes were

"directly in conflict." Mikusch, 138 Ill. 2d at 249.

       Furthermore, because the Human Rights Act was enacted after the amendment

to section 2-115, the court assumed the legislature was aware of its previous

enactment. Mikusch, 138 Ill. 2d at 250. The court considered the legislature=s failure to

provide for the mandatory retirement of Secretary of State investigators as indicating its

intent not to make mandatory retirement for investigators an exception to the Act.

Mikusch, 138 Ill. 2d at 250.

       After determining the two statutes were irreconcilable, the court concluded the

Human Rights Act was controlling because it was enacted after section 2-115. "When

two statutes appear to be in conflict, the one which was enacted later should prevail, as

a later expression of intent." Mikush, 138 Ill. 2d at 254. The Human Rights Act also

was the more specific statute on the issue of age discrimination. In the case of two

conflicting statutes, the more specific legislation should control over the more general

one. Mikusch, 138 Ill. 2d at 254. The court did not rely on a repeal by implication.

       Plaintiffs= position is not entirely clear to us. We cannot tell whether they are

contending the Civil Rights Act repealed by implication the 1996 statute when they say

the two statutes are "irreconcilable." Repeal by implication is applied when two

enactments of the same legislative body are irreconcilable. Lily Lake Road Defenders

                                              12
1-06-0290

v. County of McHenry, 156 Ill. 2d 1, 8, 619 N.E.2d 137 (1993). A statute that is

repealed by implication is legally eliminated. Lily Lake, 156 Ill. 2d at 8. Repeals by

implication are not favored. Lily Lake, 156 Ill. 2d at 9.      In any case, our

examination of the legislative purpose behind the amended Illinois Civil Rights Act

compels us to conclude there is no conflict between the two statutes. In construing

statutes alleged to be irreconcilable, legislative intent is the paramount consideration.

Moore v. Green, 219 Ill. 2d 470, 479, 848 N.E.2d 1015 (2006). " >Traditional rules of

statutory construction are merely aids in determining legislative intent, and these rules

must yield to such intent.= " Moore, 219 Ill. 2d at 479, quoting Paszkowski v.

Metropolitan Water Reclamation District of Greater Chicago, 213 Ill. 2d 1, 7, 820 N.E.2d

401 (2004).

        An examination of the legislative debates helps us understand what the General

Assembly was "particularly concerned with" when it passed the Act. People v. Maya,

105 Ill. 2d 281, 285, 473 N.E.2d 1287 (1985). The Civil Rights Act was introduced in

the House of Representatives as House Bill 2330. The statements of a bill=s sponsor

matter when determining legislative intent. Emerald Casino, Inc. v. Illinois Gaming

Board, 346 Ill. App. 3d 18, 36, 803 N.E.2d 914 (2003). The sponsor of House Bill 2330

said:

              "Fritchey: The Bill provides a venue for individuals to bring a

              cause of action alleging disparate impact of a government

              policy via the State Courts which they presently do not have.

                                    *      *        *

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1-06-0290

              Again, it=s just by way of history, there was a Supreme Court

              case which limited the ability of individuals to bring actions

              pursuant to Title VI under the Federal Act and we are simply

              trying to reinstate the ability of individuals to sue under the

              State Act. It=s not intended to expand or limit whatever rights

              somebody would=ve had." (Emphasis added.) 93d Ill. Gen.

              Assem., House Proceedings, April 3, 2003, at 146-48

              (statements of Representative Fritchey).

Statements by the sponsor of the bill in the Senate further explain the intent:

              "Senator Harmon: *** [The bill] does not break any new legal

              ground nor create any new rights. Rather, it creates a State

              right of action that has existed at the federal level for over

              thirty years*** There is no new exposure for the State, simply

              a new venue--State court rather than federal court."

              (Emphasis added.) 93d Ill. Gen. Assem., Senate

              Proceedings, May 21, 2003, at 9-10 (statements of Senator

              Harmon).

       It is clear from the legislators= comments and from the language in subsection (b)

of the statute that the Act was not intended to create new rights. It merely created a

new venue in which plaintiffs could pursue in the State courts discrimination actions that

had been available to them in the federal courts.

       There is no indication in the Civil Rights Act that the legislature intended to

                                             14
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"overrule" or otherwise diminish its declaration in the University of Illinois Act that "Chief

Illiniwek is, and may remain, the honored symbol of a great university, the University of

Illinois at Urbana-Champaign." 110 ILCS 305/1f (West 1996). Courts presume the

legislature envisions a consistent body of law when it enacts new legislation. Lily Lake,

156 Ill. 2d at 9. We presume the legislature is aware of all previous enactments when it

enacts new legislation. Mikusch, 138 Ill. 2d at 247-48. Given the direct language and

glowing exaltation of Chief Illiniwek in the 1996 statute, we believe that had the

legislature intended to repeal the provision or supercede it, it would have done so

expressly.

       There is no "irreconcilable conflict" or contradiction between the statutes. Nor is

there a need to harmonize the two provisions since the statutes are not related. The

plaintiffs concede the two statutes "do not pertain to the same subject and legislative

mission," and section 1f "is silent on the subjects of discrimination and civil rights." In

order for two statutes to be in irreconcilable conflict, they must relate to the same

subject. Mikusch, 138 Ill. 2d at 248. They do not in this case.

       In Mikusch, there was clear authority holding the Human Rights Act prohibited

mandatory retirement based on age. The section of the Vehicle Code mandating

retirement for investigators after age 60 directly conflicted with the Act, which prohibited

mandatory retirement before age 70. The plaintiffs in this case assume the University=s

use of Chief Illiniwek constitutes "discrimination," as defined in the Illinois Civil Rights

Act of 2003. They provide no authority for their conclusion.

       The plaintiffs contend the legislature=s failure to include an exception or

                                              15
1-06-0290

exemption for the University=s use of Chief Illiniwek in the Civil Rights Act supports their

contention that the Civil Rights Act rendered the 1996 statute inoperative. We believe

the more reasonable interpretation is that the legislature did not find it necessary to

exempt the University=s actions because it did not consider them to be a form of

"discrimination" under the Civil Rights Act. We do not make any further inquiry into the

plaintiffs= questionable assertion that their allegations amount to a valid claim of

discrimination under the Act. At any rate, plaintiffs have not shown the Act had any

effect on the legislature=s clear statement of affection for Chief Illiniwek in the 1996

statute.

       Accordingly, we affirm the trial court=s dismissal of plaintiff=s complaint.

       Affirmed.

       HOFFMAN, J., specially concurring.

       HALL, J., dissenting.



       JUSTICE HOFFMAN, specially concurring:

       I agree with Justice Wolfson's reasoning, but write separately

because I believe there is a more basic reason why the dismissal of

the plaintiffs' amended complaint should be affirmed; namely, it

fails to allege facts, which if true, would entitle the plaintiffs

to the relief they seek even in the absence of the provisions of

section 1f of the University of Illinois Act (110 ILCS 305/1f (West

2004)).

       The plaintiffs' amended complaint purports to state a claim

                                             16
1-06-0290

against the University of Illinois (University) and its board of

trustees for a violation of the Illinois Civil Rights Act (Civil

Rights Act) (740 ILCS 23/1, et seq. (West 2004)).                Specifically,

the plaintiffs assert that the University's use of Chief Illiniwek

(Chief) as a sports mascot violates section 5 of the Civil Rights

Act ((740 ILCS 23/5 (West 2004)).

      Section 5(b) of the Civil Rights Act provides a private right

of action in favor of any person aggrieved by conduct that violates

subsection (a) of the statute.        Section 5(a) provides that:

      "(a) No unit of State, county or local government in

      Illinois shall:

            (1) exclude a person from participation in, deny a

            person the benefits of, or subject a person to

            discrimination under any program or activity on the

            grounds of that person's race, color or national

            origin; or

            (2) utilize criteria or methods of administration

            that have the effect of subjecting individuals to

            discrimination    because      of   their   race,   color   or

            national origin." 740 ILCS 23/5(a) (West 2004).

The plaintiffs make no claim that the University violated section

5(a)(2); rather, their action appears to be based on a claim of

discrimination under section 5(a)(1).           The term "discrimination" is

not   defined   in   the   statute.     However,     Webster's      Third    New

International Dictionary defines the word as, inter alia, the act

                                      17
       1-06-0290

or practice of "according of differential treatment to persons of

an alien race or religion."             Webster's        Third New International

Dictionary     648       (1981).        Black's      Law    Dictionary          defines

discrimination as "[t]he effect of a law or established practice

that   confers      privileges     on   a   certain      class    or     that    denies

privileges     to    a   certain    class    because       of    race,    age,     sex,

nationality, religion, or handicap."                Black's Law Dictionary 479

(7th ed. 1999).

       Five individuals joined as plaintiffs in this action: Stephan

Naranjo,   a   Native      American     student     at   the    University;       Roger

Fontana, a Native American; Bess Van Asselt, a student at the

University; John Low, a Native American student at the University

of Michigan; and Tom Cafcas, a Native American student at the

University.    Clearly, no claim has been stated as to Van Asselt as

the amended complaint does not allege that she is a Native American

or that she was in any way discriminated against because of her
race, color or national origin.              See 740 ILCS 23/5(a)(1) (West

2004).     Additionally, her assertions of retaliation by fellow

students because of her opposition to the Chief form no basis for

relief.     The Civil Rights Act, unlike the Human Rights Act, does

not grant a right of action to a person who experiences retaliation

because he or she has opposed that which he or she reasonably

believes to be unlawful discrimination.                  See 775 ILCS 5/6-101(A)

(West 2004).        The claims of the remaining individual plaintiffs,

all of whom are alleged to be Native Americans, present different

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considerations.

      The amended complaint alleges that Naranjo and Fontana feel

"humiliated and embarrassed" when their heritage is reduced to

"half-time       sporting          event        entertainment"         by     the      Chief's

performances.         Low alleges that he decided to attend the University

of Michigan, rather than the University of Illinois, as "a result

of    the   hostile        atmosphere          against     Native   Americans          at   the

University       of    Illinois      arising         out    of   the    Chief       Illiniwek

controversey."              Cafcas       asserts         that    the        "Anglo-American

construction          of   Chief     Illiniwek"          reminds    him       of    how     "the

exploitation and distortion of Native American Culture and religion

is woven into institutions like the University of Illinois."

Conspicuously absent from the amended complaint is any allegation

that the University excluded these individual plaintiffs from

participation in, or the benefits of, any program or activity based

on their Native American heritage.                   Rather, they allege that they

find the Chief's performances to be insulting, demeaning, and

humiliating and, as a result, do not attend University sporting

events where the Chief performs or, in the case of Low, chose to

attend a different university.                  According to the amended complaint,

the   use   of     the     Chief    as     a    sports     mascot   creates        a   hostile

environment for Native Americans.

      It appears that the Native American plaintiffs' claims of

discrimination are based upon their subjective feelings and the

assertion     of      a    hostile       environment        based      upon    the     Chief's

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performances.      However, in the absence of any allegation that the

individual      Native     American    plaintiffs     had     ever       been   denied

admittance to any University program, activity, or event based upon

their race or color, I am left with the question of whether the

allegations      in    their   amended        complaint     state    a    claim    for

discrimination within the meaning of section 5(a)(1) of the Civil

Rights Act.

      The amended complaint states that the Chief wears orange and

blue face paint and is dressed in a costume which includes a

feathered head garment and fringed shirt and pants.                   His half-time

performances at sporting events include a ritual where he prances

about the field of play, waiving his arms about vigorously, and

leaping high into the air as he splits his legs.                    Upon completing

what the plaintiffs refer to as a "spasm of gymnastic maneuvers,"

the   Chief    composes     himself    and    walks   off    the    playing     field.

Distilled to its finest, the plaintiffs' amended complaint asserts

that the symbolism of the Chief's performances is discriminatory,

and it is that symbolism which the plaintiffs assert creates a

hostile environment.

      Because of the nature of the Civil Rights Act, it should be

accorded a liberal interpretation in order to effectuate its

purpose.      The actions prohibited by the statute are not limited to

tangible deprivations such as the exclusion of an individual from

participation in a program or the denial of any specific benefit.

The   inclusion       in   section    5(a)(1)    of   a     proscription        against

                                         20
1-06-0290

subjecting a person to discrimination under any program or activity

based on that persons race, color, or national origin evinces a

legislative     intent    to    define     discrimination   in    its   broadest

possible terms and prohibit all forms of disparate treatment.

Consequently,    I believe that a plaintiff can establish a violation

of   section    5(a)(1)        of   the    Civil   Rights   Act    by    proving

discrimination predicated upon a hostile environment.               See Meritor

Savings Bank, FSB v. Vinson, 477 U.S. 57, 66-67, 106 S.Ct. 2399, 91

L.Ed.2d 49 (1986).       However, if the mere uttering of disparaging

words or phrases about a class of persons which engenders offensive

feelings is insufficient to establish a hostile environment (see

McPhaul v . Board of Commissioners of Madison County, 226 F.3d 558,
566-67 (7th Cir. 2000)), I believe it follows that gestures or dress

which a member of a class may find offensive are also insufficient.

 Conduct which is not severe enough to create a hostile environment

is beyond the purview of section 5(a)(1).

     In this case, the Native American plaintiffs have alleged

subjective feelings of embarrassment and humiliation by the Chief's

performances and that they find the symbolism that the Chief

represents to be both insulting and demeaning.              However, I do not

believe that the conduct of which they complain is objectively

hostile.    These plaintiffs made no charge that any of the Chief=s

actions were directed to them as individuals; rather, they assert

insult as members of a class.             Although some Native Americans may

well find the Chief to be insulting and demeaning, his performances

                                          21
1-06-0290

 are certainly not of such a character that a reasonable person

would find so abusive that it would interfere with his or her

ability to participate in, or benefit from, the University's

programs or activities.         For this reason I am of the opinion that

the plaintiffs' amended complaint fails to state a cause of action

under section 5 of the Civil Rights Act.

     The trial court dismissed this action based on the grounds

addressed by Justice Wolfson.           However, the defendants raised the

amended complaint's failure to allege facts rising to the level of

discrimination as a basis for dismissal before the trial court, and

the University raised the issue in its brief before this court.                   A

reviewing court can affirm a trial court=s decision on any ground

apparent from the record (Material Service Corp. v. Department of
Revenue, 98 Ill. 2d 382, 387, 457 N.E.2d 9 (1983)), and I believe

that the failure of the plaintiffs to allege facts rising to the

level of discrimination within the meaning of section 5(a) of the

Civil    Rights   Act   is    the   principal      reason   why   their    amended

complaint should be dismissed.           For this reason, I concur in the

affirmance of the circuit court=s judgment.

     JUSTICE HALL dissenting.

     I    respectfully       dissent.     I   am    not   as   confident    as   my

colleagues that plaintiffs' amended complaint fails to state a

cause of action under the Illinois Civil Rights Act of 2003 (740

ILCS 23/5(a)(1) (2004)).        According to the allegations set forth in

the amended complaint, the University's use of Chief Illiniwek as

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its sports mascot creates a hostile educational environment for

Native American students.        To establish the existence of a racially

hostile educational environment, plaintiffs must prove that the

alleged discriminatory conduct at issue is sufficiently severe,

pervasive, or persistent so as to interfere with their ability to

participate in or benefit from the school's services. see Note,

Native    American    Mascots,    Schools,   and   the   Title    VI   Hostile

Environment Analysis, 1995 U. Ill. L. Rev. 971, 987.

     A hostile-environment analysis in the educational context

entails     an    examination    of   the    frequency    of     the   alleged

discriminatory conduct; its severity; whether it is physically

threatening or humiliating, or a mere offensive utterance; and

whether it unreasonably interferes with the student's academic

performance. Hayut v. State University of New York, 352 F.3d 733,

745 (2003).      This standard requires the student to present evidence

that he or she not only subjectively perceived the environment to

be hostile, but also that the environment was objectively hostile

or abusive. Hayut, 352 F.3d at 745.

     In this case, considering the allegations of the amended

complaint in the light most favorable to the plaintiffs, I believe

the allegations are sufficient to state a cause of action for

racially hostile educational environment under the Illinois Civil

Rights Act of 2003 (740 ILCS 23/5(a)(1) (2004)). See, e.g., Daniel

v. Bd. of Educ. for Ill. Sch. Dist. U-46, 379 F. Supp. 2d 952. 963

(N.D. Ill. 2005) (allegations by minority and limited English

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proficient students that they suffered racially disparate effects

as a result of local board of education redistricting plan was

sufficient to state a claim under the Illinois Civil Rights Act of

2003 (740 ILCS 23/5(a)(1) (2004))).        A trier of fact should decide,

on   another   day,   whether   plaintiffs    can   actually    prove     their

allegations, but plaintiffs have pleaded sufficient facts to allege

a racially hostile educational environment.

      In light of the number of prominent educational institutions

that have voluntarily discontinued the use of Native American

nicknames, symbols, and mascots (see generally 1995 U. Ill. L. Rev.

at 1000), I cannot conclude that a reasonable person in plaintiffs'

position would not find that the University's continued official

sanctioning of Chief Illiniwek as its sports mascot violates the

civil   rights   of    Native   American     students   by     creating    and

contributing to an objectively hostile educational environment.




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