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 If of the University of Illinois Act (110 ILCS 305/lf (West 2004)).
The plaintiffs’ amended complaint purports to state a claim against the University of Illinois (University) and its board of trustees for a violation of the Illinois Civil Rights Act of 2003 (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:
“(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 N.ew International Dictionary defines the word as, inter alia, the act 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)(l) (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 considerations.
The amended complaint alleges that Naranjo and Fontana feel “humiliated and embarrassed” when their heritage is reduced to “halftime sporting event entertainment” by the Chiefs 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.” Cafeas 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 Chiefs 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 halftime performances at sporting events include a ritual where he prances about the field of play, waving 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 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, 91 L. Ed. 2d 49, 59-60, 106 S. Ct. 2399, 2405-06 (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, 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 Chiefs 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 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)(l) (2004)). According to the allegations set forth in the amended complaint, the University’s use of Chief Illiniwek as 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 (2d Cir. 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., Leslie v. Board of Education for Illinois School District U-46, 379 F. Supp. 2d 952, 963 (N.D. Ill. 2005) (allegations by minority and limited-English-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)(l) (West 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.