Jain v. Butler Illinois School District 53

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

S. JAIN, for herself and on behalf of her son, )

MINOR “A,” )

)

Plaintiffs, )

) No. 17 C 0002

v. )

) Judge Ronald A. Guzmán

BUTLER SCHOOL DISTRICT 53; )

BOARD OF EDUCATION OF BUTLER )

SCHOOL DISTRICT 53; LOU PASKALIDES; )

RAJIV ADVANI; LIZ CHUN; TODD )

RUSTEBERG; HITESH PATEL; ALAN )

HANZLIK; ALAN KUMAR; HEIDI )

WENNSTROM; KELLY VOLIVA; LISA )

OWEN; LIBBY MASSEY; and )

CAROLINE ROSELLI, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

For the reasons explained below, the District Defendants’ motion to dismiss plaintiffs’ Fifth

Amended Complaint is granted in part and denied in part, and the Attorney Defendants’ motion to

dismiss plaintiff’s Fifth Amended Complaint is granted.

BACKGROUND

Plaintiff S. Jain brought this case against Butler School District 53 (the “District”); the

District’s Board of Education and its members at the relevant time, Lou Paskalides, Rajiv Advani,

Liz Chun, Todd Rusteberg, Hitesh Patel, Alan Hanzlik, and Alan Kumar (collectively, the “Board”);

District Superintendent Heidi Wennstrom; Kelly Voliva, the former Principal of the District’s Brook

Forest Elementary School (“Brook Forest”); and Brook Forest Assistant Principal Lisa Owen

(collectively, the “District Defendants”). Plaintiff has also sued Libby Massey and Caroline Roselli,

who are attorneys who performed relevant work for the District (collectively, the “Attorney

Defendants”).

The Court previously issued an opinion in this case dismissing the Fourth Amended

Complaint. (ECF No. 134.) Currently before the Court is the Fifth Amended Complaint. In a

nutshell, plaintiff asserts for herself and on behalf of her minor son “A” several claims that arise

from the District’s investigation and conduct stemming from a report that Jain and other District

parents had engaged in unethical and deceptive practices in order to provide A and other students

with unfair advantages in academic competitions (the National Geographic Bee (the “GeoBee”) and

the WordMasters Challenge (“WordMasters”)). At the relevant time, A was nine years old and a

fifth-grade student at Brook Forest. Plaintiffs’ claims are based on (1) an instance in which A was

pulled out of his classroom after competing in the GeoBee and questioned by Wennstrom, Voliva,

and Owen, who allegedly “coerced a false confession” from A that he had cheated on the GeoBee

by receiving and reviewing the questions and answers in advance, (ECF No. 170, 5th Am. Compl.

¶ 87); (2) emails that Wennstrom sent in February 2016 and June 2016 to District parents and

employees about certain (unnamed) families’ “academic dishonesty” and the District’s investigation

and findings; (3) the Board’s retention of the Attorney Defendants’ law firm, Robbins Schwartz, to

investigate Jain’s subsequent grievance, and the Attorney Defendants’ conduct during the

investigation; and (4) the sanctions imposed as a result of the investigation, namely, A’s prohibition

from participating in future academic competitions while a student in the District, and the fact that

Jain was “not permitted to serve in any capacity as a parent volunteer” for school-related contests,

(id. ¶ 121). The Court will set out the detailed allegations as necessary in its discussion of each

claim.

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The Fifth Amended Complaint contains the following claims: a 42 U.S.C. § 1983 claim for

unlawful seizure in violation of the Fourth Amendment, against Wennstrom, Voliva, and Owen

(Count I); a 42 U.S.C. § 1983 claim for violation of Fourteenth Amendment due process, against

Wennstrom, Voliva, and Owen (Count II); unlawful seizure in violation of the Illinois Constitution,

against Wennstrom, Voliva, and Owen (Count III); willful and wanton conduct, against all

defendants (Count IV); intentional and reckless infliction of emotional distress, against all

defendants (Counts V and VI); defamation per se, against Wennstrom (Count VII); and violation

of Illinois’s anti-bullying statute, 105 ILCS 5/27-23.7, against Wennstrom, Voliva, Owen, and the

District (Count VIII). Counts I, II, III, and VIII are brought on behalf of A alone, and the remaining

claims are brought by both plaintiffs.

The District Defendants move to dismiss the Fifth Amended Complaint, and the Attorney

Defendants have separately moved to dismiss the claims against them. The motions are brought

pursuant to Federal Rule of Civil Procedure 12(b)(6).

LEGAL STANDARDS

When evaluating the sufficiency of a complaint on a Rule 12(b)(6) motion to dismiss, the

Court construes the complaint in the light most favorable to the plaintiff, accepts as true all

well-pleaded facts therein, and draws all reasonable inferences in plaintiff's favor. Cincinnati Life

Ins. Co. v. Beyrer, 722 F.3d 939, 946 (7th Cir. 2013). The complaint must “give the defendant fair

notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007) (ellipsis omitted). It “does not need detailed factual allegations” but must

contain “enough facts to state a claim for relief that is plausible on its face.” Id. at 555, 570. “A

claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

DISCUSSION

A. The Board of Education

The District Defendants first argue that the Board of Education, as the District’s “elected

governing body,” is “not a proper party in this lawsuit” because plaintiffs have also sued the District

itself. They cite no authority that supports this proposition, so it is rejected.

B. Res Judicata

The District Defendants assert that plaintiffs’ federal claims are barred by res judicata

because they could have been brought in a state-court administrative-review action that plaintiffs

filed in June 2016, which was later dismissed with prejudice. In that action, plaintiffs sought

reversal of the District’s decision to bar A from participating in future academic contests, as well

as the removal of references to the incident from A’s school record. (ECF No. 186-1, Compl. for

Admin. Review.)

One of the elements of res judicata that defendants must demonstrate is that there was a final

judgment on the merits in the prior case. See Parungao v. Cmty. Health Sys., Inc., 858 F.3d 452,

457 (7th Cir. 2017) (applying Illinois law).1 The District Defendants fail to make this showing.

Plaintiffs attach to their response a copy of the transcript of the hearing at which the state court

explained that it was dismissing the administrative action “as moot” because, since the filing of the

action, defendants had provided all the relief that was sought. (ECF No. 192-1.) Therefore, while

1The Court must apply Illinois’s res judicata law to determine the preclusive effect of the

state-court proceedings on plaintiffs’ § 1983 claims. See Brown v. City of Chi., 599 F.3d 772, 774

(7th Cir. 2010).

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the trial court deemed the dismissal as one “with prejudice,” it was decided on mootness grounds.

Although the District Defendants attach to their supporting memorandum copies of their motions

to dismiss the administrative-review action, which urged dismissal on the ground of mootness, they

omit that fact from their discussion and ignore it in their reply. They simply reiterate that the state

court’s order reflected a dismissal “with prejudice.” But under Illinois law, a mootness finding is

not a judgment on the merits, and it does not support the application of res judicata in a subsequent

case. Gassman v. Clerk of the Circuit Court, 71 N.E.3d 783, 792 (Ill. App. Ct. 2017) (citing

Johnson v. Du Page Airport Auth., 644 N.E.2d 802, 808-09 (Ill. App. Ct. 1994) (stating that the

dismissal of a moot case “with prejudice” was error, thus rendering erroneous the dismissal of a

subsequent case based upon the res judicata effect of the prior case); La Salle Nat’l Bank v. City of

Chi., 121 N.E.2d 486, 490 (Ill. 1954)).

C. Unlawful Seizure - Fourth Amendment & Illinois Constitution (Counts I and III)

Counts I and III are A’s claims against Wennstrom, Voliva, and Owen (the

“Administrators”) for violation of the Fourth Amendment and the Illinois Constitution. Plaintiffs

allege that the Administrators unreasonably seized A by pulling him out of class and together

questioning him for an hour and half about the alleged academic dishonesty. The District

Defendants argue that these claims fail because “[t]here is nothing unreasonable about summoning

a student out of class and into the principal’s office so that school officials could question him about

possible academic dishonesty, a serious violation of school rules.” (ECF No. 186, Dist. Defs.’ Mem.

Supp. Mot. at 5.) The Attorney Defendants argue that A was not “seized.”2

2Counts I and III are not asserted against the Attorney Defendants, but they argue that

plaintiffs have not sufficiently pleaded any federal claims and that the Court should decline to

exercise supplemental jurisdiction over the state-law claims against them.

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“[P]ublic school students are in a unique constitutional position enjoying less than the full

constitutional liberty protection afforded those persons not in school”; nonetheless, “students do not

completely surrender their constitutional rights at the schoolhouse gate.” Wallace by Wallace v.

Batavia Sch. Dist. 101, 68 F.3d 1010, 1013 (7th Cir. 1995) (holding that summary judgment in favor

of defendants was appropriate on the ground that a reasonable jury could not find that teacher’s

“brief seizure” of a student by grabbing her elbow and wrist in order to prevent a fight and restore

order was disproportionate to the interference with the educational process that the situation

presented). “‘[T]he nature of those rights is what is appropriate for children in school.’” Id.

(quoting Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 656 (1995)). As the Court explained in

Wallace, because the deprivation of students’ liberty is inherent in the educational process, there is

an “awkward fit” between the Fourth Amendment and actions taken by school officials, particularly

when there is a seizure of a person, as opposed to a search and/or seizure of property. Id. at 1014.

The Court described the applicable standard as follows: “[I]n the context of a public school, a

teacher or administrator who seizes a student does so in violation of the Fourth Amendment only

when the restriction of liberty is unreasonable under the circumstances then existing and apparent.”

Id.

Significantly, the Court in Wallace characterized a teacher’s grabbing of the plaintiff’s wrist

as a seizure and did not set forth a modified approach to the foundational issue of when a student

is “seized” within the meaning of the Fourth Amendment. The traditional approach asks “whether

the person believed he was free to leave. This standard is an objective one and is made on the basis

of the totality of the circumstances surrounding the encounter.” Carlson v. Bukovic, 621 F.3d 610,

618 (7th Cir. 2010) (internal quotation marks and citation omitted). The Third Circuit has also

applied this traditional standard in the public-school context. Shuman ex rel. Shertzer v. Penn

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Manor Sch. Dist., 422 F.3d 141, 147 (3d Cir. 2005) (holding that a high school student was “seized”

when the assistant principal told him to remain in a conference room for several hours and he was

not free to leave).

In the Court’s view, plaintiffs have alleged sufficient facts to state a claim that the

Administrators violated A’s Fourth Amendment right to be free from unreasonable seizures.

Specifically, plaintiffs allege the following: Wennstrom received information from a parent in the

District that A’s parent had that year’s GeoBee questions and was using them to prepare A for the

competition. A few days later, on January 19, 2016, A participated in the first day of the GeoBee,

but Assistant Principal Owen entered A’s classroom later that day and told him that he needed to

get up from his desk and come with her to Principal Voliva’s office. A had never before been to the

principal’s office. When they arrived at Voliva’s office, Voliva and Superintendent Wennstrom

were there. All three administrators proceeded to ask A a series of questions, beginning with, “Do

you know why you’re here?” A replied that he did not. Wennstrom asked A about WordMasters

and noted that he had had a perfect score in that competition. Then she asked him about how he had

studied for the GeoBee; when he described various study aids that he had used and tried to explain

how he had studied, he was told to answer only “yes” or “no” to the administrators’ questions “as

if in a ‘court of law.’”3 Wennstrom asked A how he had done on that morning’s session of the

GeoBee, and A said, “fine,” but that he had missed a question. Wennstrom then showed A questions

from the morning rounds, asked him if his mother had shown him any of those questions, and said

“Do not lie. I know the truth.” Owen added, “Don’t cry. You can’t cry.” A was nervous, scared,

3It is unclear whether plaintiffs are alleging that the specific directive “as if in a court of law”

was given to A, or if that is merely counsel’s description of the “yes” or “no” directive, but the Court

notes that the phrase is enclosed in quotation marks in the complaint. (5th Am. Compl. ¶ 66.)

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and shaking. None of the administrators acted as A’s advocate or tried to protect him. They used

“mean” and “raised” voices to suggest that A had done “certain things that he did not do.” They

asked him “dozens and dozens of questions,” made him sit at a computer screen and review GeoBee

questions, and repeatedly humiliated and belittled him. They did not offer A the opportunity to

speak with one of his parents, nor were his parents informed of the meeting ahead of time. The

Administrators “intimidated [A] until he falsely made admissions.” The questioning lasted

approximately 1.5 hours. “Effectively, [A] was presented the false choice of telling the truth and

not being permitted to end the interrogation, or tell them what they wanted to hear (even when it was

not true) in order to get out of their custody.” (5th Am. Compl. ¶¶ 47, 52-88.)

Defendants dispute that A was questioned for 1.5 hours, but on a motion to dismiss,

plaintiffs’ allegations are taken as true. Defendants lose sight of that standard. The issue is whether

the allegations are sufficient to indicate that A’s seizure, under the circumstances presented, was

objectively unreasonable—or, as stated in Wallace, whether it reasonably could be found that the

Administrators’ actions were “disproportionate to the interference with the educational process that

the situation presented,” 68 F.3d at 1015. Here, a nine-year-old student was allegedly pulled from

class and aggressively questioned for an hour and a half about academic dishonesty that was

allegedly initiated by his parent, and this questioning was conducted simultaneously by three high-

ranking administrators, including the District Superintendent. Those administrators allegedly

intimidated and belittled A; told him he could only answer “yes” or “no”; and told him that he could

not cry. That alleged conduct is viewed in light of the situation, which did not involve disruptive

behavior or the need to restore order among students (such as an imminent fight between students,

as in Wallace) or other exigent circumstances (such as the need to administer breath tests to students

for blood alcohol concentration prior to entering a school function, as in Ziegler v. Martin County

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School District, 831 F.3d 1309 (11th Cir. 2016)). The District Defendants assert that “[w]ithout

questioning plaintiff A, the School District would have been unable to conduct a thorough

investigation into the cheating allegations.” (Dist. Defs.’ Mem. Supp. Mot. at 5.) That conclusion

is not evident from the alleged facts, and, more importantly, the argument misses the point: it is the

manner in which A was allegedly seized and questioned, in the absence of exigent circumstances,

that gives rise to plaintiffs’ claim.4 The Fifth Amended Complaint contains sufficient facts to

support A’s claim that the Administrators violated his Fourth Amendment rights. See also Jaythan

E. v. Bd. of Educ. of Sykuta Elem. Sch., 219 F. Supp. 3d 840, 845 (N.D. Ill. 2016) (denying motion

of elementary-school principal and librarian to dismiss eight-year-old student’s Fourth Amendment

claim and explaining that the reasonableness of a student’s seizure requires “close scrutiny of the

factual circumstances under which the seizure allegedly took place”).

D. Due Process - Fourteenth Amendment (Count II)

In Count II, it is alleged that the Administrators violated A’s Fourteenth Amendment

substantive due process right “to be free from coercive interrogation techniques that shock the

conscience.” (5th Am. Compl. ¶ 154.)

Only “the most egregious official conduct” suffices to establish conscience-shocking

behavior. Jackson v. Indian Prairie Sch. Dist. 204, 653 F.3d 647, 654-55 (7th Cir. 2011). “There

4The Administrators’ argument that they are entitled to qualified immunity because they

“would not have believed taking plaintiff out of class and questioning him violated clearly

established law,” (Dist. Defs.’ Mem. Supp. Mot. at 7-8), fails for the same reason. The allegations

depict a situation that goes beyond mere “questioning.” It is clearly established that students have

a limited right to be free from unreasonable restrictions of liberty, and A has stated a claim for

violation of that right. “[M]ost claims for qualified immunity are too fact-intensive to be decided

on a motion to dismiss.” Schneider v. Cty. of Will, 366 F. App’x 683, 686 (7th Cir. 2010). A’s

claim falls into that category. See also Tamayo v. Blagojevich, 526 F.3d 1074, 1090-91 (7th Cir.

2008).

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is no clear-cut analysis to determine what constitutes ‘conscience-shocking’ conduct; the question

is whether the conduct is ‘too close to the rack and the screw.’ For example, on the one hand,

forcing an emetic down a person’s throat to forcibly extract evidence from a suspect’s stomach

shocks the conscience, but on the other hand, lying to, threatening, or insulting a suspect does not.”

Fox v. Hayes, 600 F.3d 819, 841 (7th Cir. 2010) (citations omitted). A’s alleged questioning by the

Administrators, while unpalatable, does not meet the “conscience-shocking” threshold.

As the Court noted in its previous opinion in which it concluded that plaintiffs failed to state

a claim for violation of substantive due process, the Supreme Court has observed in relation to the

scope of students’ due process rights that “‘[i]t is not the role of the federal courts to set aside

decisions of school administrators which the court may view as lacking a basis in wisdom or

compassion.’” Jain v. Butler Ill. Sch. Dist. 53, No. 17 C 0002, 2017 WL 3872474, at *8 (N.D. Ill.

Sept. 5, 2017) (quoting Wood v. Strickland, 420 U.S. 308, 326 (1975)); see also Tun v. Whitticker,

398 F.3d 899, 903-04 (7th Cir. 2005) (noting that “[c]ases abound in which the government

action—though thoroughly disapproved of—was found not to shock the conscience,” and holding

that, while school officials “exercised questionable judgment” by “overreacti[ng]” to a locker-room

situation, they did not violate the student-plaintiff’s substantive due process rights).

The Court therefore dismisses Count II. The dismissal is with prejudice because A

previously attempted, and failed, to state a substantive due process claim, and again fails to do so;

moreover, it appears that further attempts would be futile. See Agnew v. NCAA, 683 F.3d 328, 347

(7th Cir. 2012) (leave to amend need not be granted when a party has had multiple opportunities to

state a claim); Bogie v. Rosenberg, 705 F.3d 603, 608, 616 (7th Cir. 2013) (dismissal with prejudice

is appropriate when amendment would be futile).

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E. Willful and Wanton Conduct (Count IV)

Plaintiffs allege in Count IV that all defendants “willfully and wantonly” did the following:

failed to properly investigate the allegations of academic dishonesty; “targeted the overwhelming

weight of their authority on a 9-year-old boy”; disclosed their “unfounded allegations and

unwarranted punishment” to District families and staff; employed Roselli, Massey, and their law

firm to conduct an “inherently biased and flawed investigation”; and “continue to single out” A “for

different treatment than his peers.” (5th Am. Compl. ¶ 176.)

Willful and wanton misconduct is considered an aggravated form of negligence. Sparks v.

Starks, 856 N.E.2d 575, 577 (Ill. App. Ct. 2006).5 “Under Illinois law, a plaintiff pleading willful

and wanton misconduct must establish the same basic elements of a negligence claim, which are the

existence of a duty, breach of that duty, and an injury proximately resulting from the breach,” as

well as a “conscious disregard for the welfare of the plaintiff.” Doe-2 v. McLean Cty. Unit Dist. No.

5 Bd. of Dirs., 593 F.3d 507, 514 (7th Cir. 2010).

1. The District Defendants

The District Defendants maintain that they are immune from liability on Count IV under

Illinois’s Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/2-

201, which provides that “[e]xcept as otherwise provided by Statute, a public employee serving in

a position involving the determination of policy or the exercise of discretion is not liable for an

injury resulting from his act or omission in determining policy when acting in the exercise of such

discretion even though abused.” For this immunity to attach, the employee’s act or omission that

allegedly caused the injury at issue must constitute “both a determination of policy and an exercise

5 In their arguments on plaintiffs’ state-law claims, all parties rely on Illinois law, so that is

what the Court will apply. See Harter v. Iowa Grain Co., 220 F.3d 544, 559 n.13 (7th Cir. 2000).

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of discretion.” Harrison v. Hardin Cty. Cmty. Unit Sch. Dist. No. 1, 758 N.E.2d 848, 852 (Ill. 2001).

Policy determinations are those that require the governmental employee “to balance competing

interests and to make a judgment call as to what solutions will best serve each of those interests.”

Id. With respect to the exercise of discretion, courts have distinguished between “discretionary

duties, the negligent performance of which does not subject a municipality to tort liability, and

ministerial duties, the negligent performance of which can subject a municipality to tort liability.”

Id.

Statutory immunity is an affirmative defense, and the distinction between “discretionary

acts,” to which the statute applies, and “ministerial functions,” to which it does not, “resists precise

formulation, and . . . must be made on a case-by-case basis.” Snyder v. Curran Twp., 657 N.E.2d

988, 992-93 (Ill. 1995); see also Hogan v. Smith, Civ. No. 11-961-GPM, 2012 WL 1435402, at *3

(S.D. Ill. Apr. 25, 2012) (“Immunity, of course, is a defense, and thus the issue before the Court is

whether [plaintiff’s] complaint itself establishes as a matter of law that statutory immunity bars her

negligen[ce] claim.”). The Court could dismiss Count IV only if plaintiffs’ factual allegations

“unambiguously establish all the elements of the defense.” Lenz v. Robert W. Baird & Co., 697 F.

App’x 456, 457 (7th Cir. 2017). In their opening brief, the District Defendants fail to fully develop

their argument that statutory immunity applies, and the Court is unable to say as a matter of law

from its review of the Fifth Amended Complaint that such immunity applies to all instances of the

District Defendants’ alleged misconduct. The District Defendants’ motion is denied as to Count IV.

2. The Attorney Defendants

Plaintiffs allege that although the Robbins Schwartz firm had served as the District’s legal

counsel for thirty years, “the Board characterized its attorneys as an independent third party that is

in no way connected to the District.” (5th Am. Compl. ¶ 96.) Hanzlik appointed Massey to serve

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as Complaint Investigator, and Massey told Jain that she would be “independent in her

investigation” and that Roselli was going to serve as a “resolution facilitator.” (Id. ¶¶ 98-100.)

Unbeknown to the plaintiffs, Roselli had “played a key role” in Wennstrom’s initial investigation

and in deciding the sanctions against plaintiffs. (Id. ¶ 102.) Massey later issued a report to the

Board concluding that A had “cheated” on the GeoBee. (Id. ¶ 109.) The report was incomplete,

incorrect, and “sought to support” Wennstrom’s misconduct. (Id. ¶ 112, 114.) The Board voted to

affirm Massey’s findings as well as the sanctions that were previously issued by Wennstrom. (Id.

¶ 120.)

The Attorney Defendants contend that they did not owe plaintiffs any duty that they could

have breached. The Board hired the Attorney Defendants. Plaintiffs were not their clients, and there

are no facts alleged from which the Court can infer that these defendants owed plaintiffs any duty

or that they had any special relationship with plaintiffs that gave rise to a duty. Plaintiffs argue that

because the Board “sits in trust for the entire community,” which includes plaintiffs, the Attorney

Defendants, “as agents of the Board,” owe plaintiffs the same duty of care that the Board owes them.

(ECF No. 192, Pls.’ Resp. Defs.’ Mots. at 24.) Plaintiffs cite no authority whatsoever for this

proposition, so it is rejected. Count IV is dismissed without prejudice as to the Attorney Defendants.

F. Intentional and Reckless Infliction of Emotional Distress (Counts V and VI)

In Counts V and VI, plaintiffs allege claims against all defendants for intentional and

reckless infliction of emotional distress. Under Illinois law, such claims have three elements: “First,

the conduct involved must be truly extreme and outrageous. Second, the actor must either intend

that his conduct inflict severe emotional distress, or know that there is at least a high probability that

his conduct will cause severe emotional distress. Third, the conduct must in fact cause severe

emotional distress.” Cairel v. Alderden, 821 F.3d 823, 835 (7th Cir. 2016).

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Defendants contend that plaintiffs have failed to allege conduct that is so outrageous and

extreme as to warrant this kind of tort liability. The Court agrees. For conduct to be “extreme and

outrageous,” it must “go beyond all bounds of decency and be considered intolerable in a civilized

community.” Id. at 835. While some of the conduct alleged in the Fifth Amended Complaint could

be described as unreasonable and possibly unconstitutional, it cannot be said to go beyond all

bounds of decency as necessary for an infliction of emotional distress claim. Furthermore, the

plaintiffs fail to set forth sufficient factual allegations of resulting severe emotional or psychiatric

distress. Illinois law “intervenes only where the distress inflicted is so severe that no reasonable

man could be expected to endure it.” McGrath v. Fahey, 533 N.E.2d 806, 809 (Ill. 1988). Plaintiffs

allege that they “had emotional responses such as fear, anger, grief, and shock” in addition to

“nervousness, headaches, irritability, and restless sleep,” (5th Am. Compl. ¶¶ 186, 192), which is

inadequate to permit a reasonable inference that they experienced the level of emotional distress

necessary to support their claims. Therefore, Counts V and VI are dismissed without prejudice as

to all defendants.

G. Defamation Per Se (Count VII)

In Count VII, plaintiffs allege that Wennstrom defamed them by sending emails to District

parents and staff on February 8, 2016 and June 15, 2016 that described the District’s investigation

and stated that “certain families had engaged in academic dishonesty” with respect to the GeoBee

and WordMasters. (5th Am. Compl. ¶¶ 91, 124, 195-96.) The elements of a defamation claim under

Illinois law are (1) the defendant made a false statement about the plaintiff; (2) the defendant made

an unprivileged publication of that statement to a third party; and (3) the publication caused

damages. Goral v. Kulys, 21 N.E.3d 64, 76 (Ill. App. Ct. 2014) (citing Green v. Rogers, 917 N.E.2d

450, 459 (Ill. 2009)). “A statement is defamatory per se if its harm is obvious and apparent on its

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face.” Green, 917 N.E.2d at 459. If a defendant’s statements constitute defamation per se, the

plaintiff need not prove actual damages. Id. at 461.

Wennstrom first contends that plaintiffs’ defamation claim fails because plaintiffs admit in

the complaint that neither email “mentioned either S. Jain or Minor ‘A’ by name,” (5th Am. Compl.

¶¶ 92, 128). Where a plaintiff is not named in the allegedly defamatory statement, it is not

actionable under Illinois law unless persons other than the plaintiff and the defendant could have

reasonably understood that the statement was about the plaintiff and that the allegedly libelous

expression related to her. Bryson v. News Am. Pubs., Inc., 672 N.E.2d 1207, 1218 (Ill. 1996).

Wennstrom disregards this exception and fails to acknowledge the allegations in the remainder of

paragraphs 92 and 128. Plaintiffs allege that the pool of competitors was very small and that A’s

absence from the competition was noticeable, so they have sufficiently pleaded that persons other

than plaintiffs and defendants could have reasonably understood that the emails were about

plaintiffs.

Wennstrom also contends that, as a public official, she has absolute immunity from liability

for defamation under Illinois common law. Illinois courts have “long held” that executive branch

officials of state and local governments cannot be civilly liable for statements, even defamatory

ones, made within the scope of their official duties. Novoselsky v. Brown, 822 F.3d 342, 349 (7th

Cir. 2016) (citing Geick v. Kay, 603 N.E.2d 121, 127 (Ill. App. Ct. 1992)). This broad privilege

applies to public-school superintendents like Wennstrom. See Horwitz v. Bd. of Educ. of Avoca Sch.

Dist. No. 37, 260 F.3d 602, 617-18 (7th Cir. 2001). The sole consideration is whether the statements

at issue were reasonably related to her duties. See Novoselsky, 822 F.3d at 350.

Plaintiffs assert that they should be allowed to proceed on their defamation claim because

they allege that Wennstrom’s emails did not fall within the scope of her official duties. (5th Am.

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Compl. ¶ 204.) But they do not attempt to explain how Wennstrom’s communications to District

families and employees about instances of academic dishonesty would not be reasonably related to

her duties as superintendent, and the complaint does not contain any facts that support such an

inference. Accordingly, Count VII is dismissed without prejudice. See Horwitz, 260 F.3d at 617-18

(school superintendent was acting within the scope of his official authority when he communicated

with various parents about the absence of plaintiff, who was a teacher in the district); Cox v.

Calumet Pub. Sch. Dist. 132, 180 F. Supp. 3d 556, 564 (N.D. Ill. 2016) (dismissing defamation

claim against school superintendent where complaint contained no facts supporting an inference that

defendant was acting outside her official authority when she communicated to third parties that

plaintiff, a former school district employee, had been discharged for cause).

H. Bullying-Prevention Statute (Count VIII)

Plaintiffs allege in Count VIII that the conduct of Wennstrom, Voliva, Owen, and the District

with regard to A violated 105 ILCS 5/27-23.7, a provision of the School Code titled “Bullying

Prevention.” The introductory policy statement of the statute provides that “[n]o student shall be

subjected to bullying” while in school, on school property, or during school-related activities. 105

ILCS 5/27-23.7(a). The statute requires Illinois school districts to create, implement, and

communicate anti-bullying policies. 105 ILCS 5/27-23.7(b), (d).

Defendants argue that the Court should dismiss Count VIII because the statute does not

create a private right of action. It is true that the statute does not contain an express right of action,

but, as plaintiffs point out, an implied right of action may exist. The parties did not cite, and the

Court’s own research did not yield, any Illinois state-court decisions that address this issue.

Therefore, the Court believes that it is prudent to adopt the approach set out in Eilenfeldt v. United

C.U.S.D. #304 Board of Education, No. 4:12-CV-04029-SLD-JAG, 2013 WL 12248080, at *7 (C.D.

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Ill. Mar. 25, 2013), in which the court was confronted with the same issue and declined to exercise

its supplemental jurisdiction over the claim. Under 28 U.S.C. § 1367(c)(1), a district court may

decline to exercise supplemental jurisdiction over a claim if it raises a novel issue of state law.

Because Illinois law on claims under the bullying-prevention statute is undeveloped, a ruling from

this Court on whether the statute implies a private right of action “would require significant policy

determinations as to the legislative intent behind the statute and the inherent role of the statute in

remedying bullying in schools.” Eilenfeldt, 2013 WL 12248080, at *7. The Court agrees with the

Eilenfeldt court that “such determinations are better left to the discretion of the state courts.” Id.

Count VIII is accordingly dismissed without prejudice.

CONCLUSION

The District Defendants’ motion to dismiss plaintiffs’ Fifth Amended Complaint [185] is

granted in part and denied in part. The motion is denied as to Counts I and III, plaintiff A’s claim

against defendants Wennstrom, Voliva, and Owen for unconstitutional seizure, and as to Count IV

as asserted against the District Defendants. (Count IV as asserted against the Attorney Defendants,

however, is dismissed without prejudice.) The motion is granted as to the remaining counts. Count

II is dismissed with prejudice, and Counts V, VI, VII, and VIII are dismissed without prejudice.

Defendants Libby Massey and Caroline Roselli’s motion to dismiss plaintiff’s Fifth Amended

Complaint [187] is granted, and those defendants are terminated from this case. A status hearing

is set for March 29, 2018 at 9:30 a.m. The Clerk of Court is directed to update the docket to reflect

the correct spelling of the last names of defendants Lou Paskalides and Todd Rusteberg.

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DATE: March 22, 2018

Auth Pogue

Ronald A. Guzman

United States District Judge

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