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Bloomington Abused ‘Pending Litigation’ Exception in Closing Meeting Per Illinois Attorney General

Illinois Attorney General Lisa Madigan has concluded City leaders in downstate Bloomington violated the State’s Open Meetings Act in discussing potential litigation in Closed Session when litigation was not probable or imminent.


            In the Opinion, Madigan recommended the “imminent litigation” exception to the OMA be limited in its scope so as not to allow governmental bodies to exploit that provision by holding meetings in secret when they should be open to the public.


            The Bloomington City Council was accused in June of violating the OMA by going into Closed Session to consider terminating an Intergovernmental Agreement with the town of Normal.  The Bloomington City Council made a finding that litigation in the matter was probable and then went into Closed Session to discuss it. 


            A section of the OMA states that a body may go into Closed Session when a legal action against it has been filed or when the body finds that a legal action is probable or imminent.  An additional rule requires the body to disclose why a legal action is probable.


            Madigan in her Opinion found that Bloomington did not have a reasonable basis for a finding that legal action from the City of Normal was probable.  She said “the dispute between Bloomington and Normal had been going on for some time, and to close a meeting there must be reasonable grounds to believe a lawsuit is likely.”  The Attorney General also faulted Bloomington for discussing in Closed Session a course of action concerning the Agreement with Normal, and not just possible litigation.


The Attorney General cited prior Attorney General opinions in support of the proposition that any discussion for this reason *must exclusively focus on litigation strategy and legal theories*. She emphasized that the discussion cannot be about "if we do this we're probably going to get sued". In other words it must be about the likely litigation, and must not be about the matter that might give rise to any such litigation.


The Attorney General thought that in any event Bloomington was too liberal in its construction of what constitutes "probable or imminent". Not only must it be "more likely than not", but it cannot be contingent upon future actions by the Board (which are themselves the real matters the Board wants to discuss in closed session). In other words, unless and until Bloomington voted to unilaterally terminate the IGA with Normal, nothing would've happened that would justify the inference that litigation was probable or imminent.


Posted 8-19-17

New Guidance on Sexual Misconduct

The United States Secretary of Education recently announced that the Department of Education was withdrawing two Obama-era guidance documents regarding responsibilities of school districts with regard to addressing allegations of sexual misconduct.  As a result, the Department of Education’s guidance on this topic is essentially the same as it had been in 2010.  Below, we review how these changes may affect School Districts.

First, the withdrawn federal guidance documentation had required schools to use the "preponderance of the evidence" standard with regard to sexual misconduct disciplinary decisions.  Schools may now choose between that standard and the higher "clear and convincing" standard, so long as they use the same standard with regard to sexual misconduct cases and all other student discipline cases.

Second, while the withdrawn guidance documentation had required schools with an appeals process to allow complainants to appeal "not-guilty" determinations, schools may now choose to reserve such appeals for accused students who receive a “guilty” determination.

Third, the prior guidance documentation had been interpreted by some to discourage cross-examination of an accuser, by suggesting that schools which established a blanket right to cross-examine might violate Title IX.  The new guidance allows Districts to extend the same cross-examination rights to both the accuser and accused.

Fourth, the former guidance provided that any due process protections afforded to accused students should not "unnecessarily delay" resolving the charges.  The revised guidance documents include no such admonition.

It should be noted that none of the changes appear to make any current model PRESS policies legally insufficient or unenforceable.  Rather the changes make it possible to adopt adjustments to certain aspects of such policies if Districts choose to do so.  The new guidance documentation also indicates that additional regulations may be forthcoming.  We will continue to monitor the development of any such new regulations.


Posted 10-3-17

OCR Issues New Guidance on Transgender Student Complaints

Recently the Acting Assistant Secretary for Civil Rights for the U.S. Department of Education, sent OCR Regional Directors a memorandum outlining the evaluation and investigation of complaints by transgender students.

 The guidance declares that OCR offices can no longer rely on the May 2016 Dear Colleague Letter (or the predecessor 2015 private letter) concerning transgender students' rights under Title IX as a basis for resolving a complaint. Instead OCR must apply Title IX and its implementing regulations as interpreted by the federal courts in evaluating a complaint of sex discrimination.

 The directive lists the following allegations as those over which OCR has continuing jurisdiction:

  • Failure to resolve promptly and equitably a transgender student's complaint of sex discrimination;
  • Failure to assess whether sexual harassment or gender-based harassment of a transgender student has created a hostile environment;
  • Failure to take steps reasonably calculated to address harassment that creates a hostile environment;
  • Retaliation against a transgender student who has raised concerns about possible sex discrimination; and
  • Different treatment based on sex stereotyping.

The document instructs field offices to evaluate separately each allegation of a complaint. Before proceeding to investigate any allegation, OCR must determine that it contains sufficient information to move forward.

 A sample letter is provided for field offices to use when dismissing an allegation. The letter states that while the 2016 DCL has been withdrawn, state and local policies and practices may provide protection to transgender students. 


Posted 7-3-17

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