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The white hats at the Better Government Association, a generally praiseworthy bunch doing generally laudable work to bring sunshine to the cesspools of government in Chicago, Cook County, and Illinois, brought suit seeking to compel the Illinois High School Association to produce its files and records under the Freedom of Information Act.
The BGA lost in the trial court (before Judge Mary Mikva, Abner’s daughter, a chancellor in the Circuit Court of Cook County), the Illinois Appellate Court (a unanimous three-judge panel, with Justice Bertina Lampkin writing for that court), and, today, in a unanimous Illinois Supreme Court (with Justice Mary Jane Theis writing for the court).
The IHSA makes a lot of money organizing and hosting Illinois high school athletic events, and it exercises enormous influence over the lives of high school athletes and other competitors (including, for an example close to home, debaters). But it does so as a private organization, deriving all of its funds from private sources and operating itself organizationally without control by public schools and school districts; indeed, its board of directors includes private school headmasters as well as public school administrators. No statute or governmental administrative scheme delegates public school powers or responsibilities to it.
Accordingly, the Illinois Supreme Court reasoned that, within the meaning of the Illinois Freedom of Information Act, it is not a “public body” or a “subsidiary body” of a “public body”, and that its records are not “public records”.
The court noted that, in some other States, comparable high school associations are, indeed, controlled and funded by public school authorities, but that such is not the case in Illinois. The court also declined to graft “state actor” doctrines, applicable in other fields as disparate as equal protection and antitrust, on to the jurisprudence of information. This decision may, to the annoyance of many, shield from public view a lot of activity and a lot of money flows that, in practical terms, affect schools and students on the athletic field and elsewhere.
But, more important, it marks necessary resistance to the ever-present danger of the erosion and erasure of the distinction in American life and law between matters delegated to government and matters that remain entirely private affairs. In my view, the case was not a close call; but had it been, the wise and prudent thing to do would be to err on the side of the protection of the non-governmental and the maintenance of what a sage in our sister Commonwealth of Virginia once described as a “wall of separation” — in this instance between the “public” and the “private”.
A copy of the decision in Better Government Association v. Illinois High School Athletic Association, 2017 IL 121124 (May 17, 2017), can be read here.