Chief Illiniwek Lives to Offend Another Day

On Tuesday, an Illinois appellate court affirmed the dismissal of a civil rights lawsuit filed by the Illinois Native American Bar Association against the University of Illinois concerning the “Chief Illiniwek” mascot. The court’s opinion is available at Illinois Native American Bar Ass'n v. University of Illinois by Its Bd. of Trustees, 2006 WL 2684269 (Ill.App. 1 Dist.,2006). Plaintiffs argued that the mascot violated a 2003 Illinois Civil Rights Act, which provides

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.

In defense, U of I pointed to a provision of the 1996 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.

The court explained the dispute on appeal:

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 . . . 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.

Judge Wolfson, writing the court’s opinion, found no conflict between the statutes:

There is no indication in the Civil Rights Act that the legislature intended to "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." . . . 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 [the University of Illinois Act] "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. . . . They do not in this case.

Judge Hoffman’s special concurrence opined that the plaintiffs’ had failed to state a cause of action under the 2003 Civil Rights law regardless of existence or absence of a conflict between the two statutes. The judge wrote:

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. . . . [I]f the mere uttering of disparaging words or phrases about a class of persons which engenders offensive feelings is insufficient to establish a hostile environment . . . , I believe it follows that gestures or dress which a member of a class may find offensive are also insufficient.

Judge Hall dissented, writing that a reasonable person might be able to conclude plaintiffs had stated a valid civil rights claim.

Given the NCAA’s involvement and the university’s reported decision to abandon the mascot, the plaintiff’s request for injunctive relief may soon be moot. However, in that they have also asked for damages, expect an appeal to the state supreme court.

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