By Mark Conrad
During halftime at the University of Illinois football games, Chief Illiniwek, the longtime mascot of the team, performs a series of dances as accompaniment to songs dedicated to the team and the university. This practice began in 1926 and has enjoyed considerable popularity among fans of the Illini ever since. Despite the increasing criticism by many Native Americans of these practices in recent years, Chief Illiniwek performs and will continue to perform after an Illinois Appeals Court dismissed a lawsuit filed by several Native Americans seeking injunctive relief to stop this practice. This ruling could make future lawsuits problematic.
The plaintiffs either were students at the University or residents of Champaign, Illinois (the location of the school), who felt “humiliated, embarrassed and discriminated against” by the performances of Chief Illiniwek. The amended complaint alleged that the actions of the mascot were “false, misleading and demeaning of their culture” and created “a hostile environment” for Native Americans on the campus. They sought a ruling barring the performances, a declaration that the mascot violated the Illinois Civil Rights Act, (ICRA”) 740 ILCS 23 et seq. (West 2004) and damages. The trial court dismissed the plaintiffs’ claims on the grounds that the use of the mascot was mandated by state statute.
The majority ruling in Illinois Native American Barr Association v. University of Illinois, No. 1-06-0290 (Sept. 19, 2006) affirmed. The opinion centered on the meaning and potential conflict between two statutes: Section 5 of the ICRA and Section 1f of the University of Illinois Act, 110 ILCS 305/1f (West 1996). Section 5(a) of the ICRA provides that: “No unit of State, county or local government in Illinois shall 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 utilize criteria or methods of administration that have the effect of subjecting individuals to discrimination because of their race, color or national origin.” Section 1f, of the University of Illinois Act, enacted in 1996, declares that “Chief Illiniwek is, and may remain, the honored symbol of a great university, the University of Illinois at Urbana-Champaign.”
Presiding Justice Wolfson, writing for the majority, rejected the plaintiffs’ view that the two statutes were “irreconcilable” and concluded that the passage of the ICRA did not implicitly repeal the UIA. In other words, the status given to Chief Illiniwek transcended a civil rights claim for discrimination. Legislative history, the opinion noted, showed that “the Illinois Civil Rights Act created a state cause of action similar to what has existed on the federal level and nothing more.” Consequently, it did not intend to overrule the provisions of the 1996 law. Justice Wolfson added: “[g]iven 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 supersede it, it would have done so expressly,” Justice Wolfson ruled. The majority concluded “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 and the majority affirmed the trial court’s dismissal of plaintiff’s complaint.
In what this author thought was a more cogent analysis, the concurring opinion by Justice Hoffman stated that the University of Illinois Act was irrelevant and even in the absence of the statute, the plaintiffs’ claim failed to state a cause of action. “Humiliation” is a subjective feeling and since no allegations were made that the plaintiffs “had ever been denied admittance to any University program, activity, or event based upon their race or color, no hostile environment could be proven to demonstrate discrimination. Although, he added “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.” Whether the Chief was given an honorary status or not was of no consequence. The claim for civil rights violations was simply too speculative and far removed from the goals of the Illinois Civil Rights Act to be deemed a viable cause of action.
Justice Hall dissented, stating that he felt that the allegations constituted a cause of action under the Illinois Civil Rights Act. Noting that a number of prominent educational institutions that have voluntarily discontinued the use of Native American nicknames, symbols and mascots, he felt that a reasonable person in plaintiffs’ position could 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.
Although the majority gave too much attention to the statutory conflict issue, the concurring opinion notes that the harm done to Native Americans due to the representations and actions of University mascots will have to be more direct for their claim to be meritorious. If other states have similarly worded statutes to that of Illinois, such claims will be difficult to win. Although the majority opinion relied on Illinois’ granting of official status to Chief Illiniwek, even without that legislative imprimatur, the application of civil rights laws to public university mascots will be a difficult sell.
(Mark Conrad is an associate professor of Legal and Ethical Studies in the School of Business at Fordham University. He recently wrote a book, The Business of Sports – a Primer for Journalists, which is available at http://www.erlbaum.com/ME2/Default.asp)
