Julka v. Butler Illinois School District 53

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

A.J. and R.J., minor children, by )

Rahul Julka, their father and next friend, )

RAHUL JULKA, and KOMAL JULKA, )

)

Plaintiffs, )

)

vs. )

)

BUTLER ILLINOIS SCHOOL DISTRICT 53, )

THE BOARD OF EDUCATION FOR BUTLER ) Case No. 17 C 2849

SCHOOL DISTRICT 53, HEIDI )

WENNSTROM (in personal and official )

capacity), KELLY VOLIVA (in personal and )

official capacity), ALAN HANZLIK (in )

personal and official capacity), ROBBINS )

SCHWARTZ, LIBBY MASSEY, CAROLINE )

ROSELLI, VANDANA BADLANI, and )

RAVI BADLANI, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Rahul and Komal Julka's children were students in Butler School District 53.

District administrators concluded that the Julkas had wrongfully obtained the National

Geographic Bee's questions in advance to give their children an advantage in the

competition. They imposed sanctions and put letters in the students' files detailing the

alleged misconduct. The Julkas contend that the administrators' actions violated their

federal constitutional rights and state tort law. The defendants have moved to dismiss

the Julkas' complaint.

Background

The following facts are taken from the allegations of the Julkas' complaint, which

the Court takes as true for purposes of this motion.

Each year, students in District 53 have the opportunity to participate in national

academic competitions. One of these is the National Geographic Bee, commonly

referred to as the "GeoBee." The Julkas' children, A.J. and R.J., wanted to participate

in the 2016 GeoBee. At the time, A.J. was nine years old and R.J. was eleven. The

children's mother, Komal Julka, asked her brother to help them study. (For ease of

reference, the Court will refer to the father as Rahul, the mother as Komal, and the two

together as the Julkas.) Komal's brother found a link on the GeoBee website that

offered additional test preparation resources for purchase. Komal provided him with her

credit card to purchase these resources.

Komal told Vandana and Ravi Badlani, two parents whose students also

participated in the GeoBee, that they had obtained additional study resources. (The

Court will refer to the Badlanis by their first names for ease of reference or to the

Badlanis when referring to both.) On a phone call, the Badlanis asked Komal to read

the questions from the test preparation resource. Vandana concluded that what Komal

had obtained was not a test preparation resource, but the actual questions for the

upcoming GeoBee competition. What Komal did not know at the time was that Ravi

Badlani recorded Vandana's end of the call with Komal.

Vandana demanded that Komal inform the school district and the GeoBee that

they had the questions for the upcoming competition. (The District later alleged that the

Julkas had obtained the questions by misrepresenting themselves as homeschoolers to

gain access to the test questions.) On January 15, 2016, the Julkas decided to

withdraw their children from the GeoBee. Then, on January 19, Komal went to speak

with the school principal, Kelly Voliva, about Vandana's accusation. Komal was told to

wait until the superintendent, Heidi Wennstrom, arrived.

The Julkas allege that Komal told Voliva and Wennstrom the same facts recited

so far: the Julkas believed the materials they had obtained were study aids, not the

questions themselves, and there had been a misunderstanding. Wennstrom replied

that she had heard a different story from the Badlanis. She then asked Komal to leave

the office for several hours. When Komal returned, she found that Voliva and

Wennstrom had been joined by Vandana Badlani. Komal alleges that she reiterated her

story to them again, but they disagreed and questioned her. After the conversation,

Wennstrom commenced an investigation. The Julkas allege that during the

investigation, R.J., their eleven-year-old, was questioned by Voliva and another

administrator.

On February 8, Wennstrom issued a letter to the Julkas that stated: "The

academic dishonesty and cheating which you and your children engaged put all of the

District students participating in the contest and the District at risk of being banned from

current and future National Geographic Bee contests." First Am. Compl. ¶ 54. The

February 8 letter was added to R.J. and A.J.'s academic files. On the same day,

Wennstrom issued a public statement that announced the results of the investigation,

stating: "These instances of academic dishonesty by a couple parents cast a shadow

on the District's reputation and could potentially lead others to question the integrity of

our achievement results." D.E. 67, Def.'s Ex. H (Wennstrom Feb. 8, 2016 e-mail).

The Julkas filed a grievance on February 11. The Julkas allege that District 53

failed to follow its established Uniform Grievance Procedure (UGP) in numerous ways

during the grievance proceeding. First, the UGP names two particular individuals who

may serve as complaint managers, but the District instead selected Alan Hanzlik, who

was not identified in the UGP. Next, the District hired Libby Massey, an attorney with

the Robbins Schwartz law firm, to serve as an (ostensibly) independent investigator,

even though Robbins Schwartz counts the school district as a client. Third, the District

relied upon Caroline Roselli, another Robbins Schwartz attorney, as a mediator.

During a March 7 meeting held to attempt to resolve the dispute, Wennstrom

informed the Julkas that she had heard a recording of the January phone call between

Komal and Vandana. The Julkas allege that Wennstrom "decided to believe Badlani"

after hearing the recording of the phone call. First Am. Compl. ¶ 67. The parties did not

reach a resolution during the March meeting.

The Julkas allege that Massey then began to investigate the allegations against

them. They allege she interviewed several witnesses and reviewed materials the Julkas

provided. But they also contend that Massey did not permit them to be present during

the questioning of witnesses or to review the other evidence she received.

The Julkas allege that the defendants issued a written decision on April 15 (the

April decision). The April decision found that the February 8 letter inserted into the Julka

children's files improperly stated that they children had engaged in academic

dishonesty. The decision directed the District to replace the February 8 letter with a

more accurate document that did not state that R.J. and A.J. engaged in misconduct.

The April decision otherwise affirmed the district's exclusion of R.J. and A.J. from future

academic competitions. The Julkas also allege that the April decision offered the

possibility of removing the sanction letter from their children's files if they transferred out

of the district. The Julkas later filed a complaint in state court, seeking administrative

review of the District's resolution of their grievance. Julka v. Paskalides, 2016 MR

001612 (Ill. Cir. Ct. Dec. 12, 2016). Before the state court could reach a decision on the

Julkas' complaint, the School District removed the letter from the students' files.1 The

state court dismissed the case as moot. See D.E. 72, Def.'s Ex. N, at 6 (Aug. 21, 2017

court transcript).

The Julkas also allege that, after requesting copies of the children's records

during the pendency of the state court lawsuit, they learned that new documents had

been added to R.J.'s student file. The Julkas say that the documents falsely stated that

R.J. engaged in academic dishonesty in 2015—before the entire GeoBee course of

events. The Julkas contend that the school district defendants must have added the

2015 materials to R.J.'s file in May 2016, because the letter was not in the April 2016

version of the file. The Julkas allege that the events described in the 2015 materials are

baseless, incomplete, and not credible, as one of the items included is a letter that

contains misspellings and appears to contain the handwriting of two different people.

In April 2017, the Julkas filed the present lawsuit. Three groups of defendants

are named in the Julkas' amended complaint: the school district defendants (the Butler

School Board, the Butler School District, Wennstrom, Voliva, and Hanzlik); the law firm

defendants (Massey, Roselli, and Robbins Schwartz); and the Badlanis (Vandana and

Ravi Badlani). The Julkas assert seven claims on behalf of themselves and their

children: violation of the Due Process Clause (count 1), violation of the Equal

Protection Clause (count 2), retaliation in violation of the First Amendment (count 3),

civil conspiracy (count 4), intentional infliction of emotional distress (count 5), and

spoliation of evidence (count 6). In count 7, the plaintiffs ask the Court for injunctive

relief to remove any negative materials pertaining to the GeoBee from R.J. and A.J.'s

student files.

Discussion

Each of the three groups of defendants—the school board defendants, the law

firm defendants, and the Badlanis—has moved to dismiss the Julkas' complaint for

failure to state a claim. Fed. R. Civ. P. 12(b)(6). To defeat a motion to dismiss, a

plaintiff must allege a facially plausible claim, one that "allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft

v. Iqbal, 556 U.S. 667, 678 (2009). The defendants argue that the Julkas' claims do not

meet this standard. Some of the defendants also present individual arguments for why

dismissal is warranted.

I. Official capacity claims

First, the school district defendants have moved to dismiss the District 53 School

Board as a party on the ground that it is not a suable entity. The Court denies the

motion, as Illinois law plainly permits the plaintiffs to sue a school board. See Veazey v.

Bd. of Educ. of Rich Twp. High Sch. Dist. 227, 2016 IL App (1st) 151795 ¶ 27, 59

N.E.3d 857, 865 ("a board of education has the power under the School Code to sue

and be sued in court proceedings"). See also 105 ILCS 5/10-2. The school district

defendants also urge dismissal of the claims against Wennstrom, Voliva, and Hanzlik in

their official capacities. The practice of naming an officer in her official capacity

"represent[s] only another way of pleading an action against an entity of which an officer

is an agent." Kentucky v. Graham, 473 U.S. 159, 165 (1985). The Julkas, who have

also named the District and the School Board as defendants, concede this point. Pls.'

Resp. to School Dist. Defs.' Mot. to Dismiss at 3. The Court agrees that naming these

defendants in their official capacities is redundant and therefore dismisses the official-

capacity claims against each of them.

II. Color of law

Second, Massey, Roselli, and Vandana have moved to dismiss counts 1 through

3 as directed against them on the ground that they are private citizens who did not act

under color of state law. To establish a section 1983 claim against a defendant, the

plaintiff must adequately allege the defendant acted under color of state law. McNabola

v. Chicago Transit Auth., 10 F.3d 501, 513 (7th Cir. 1993). The Julkas contend Massey

and Roselli, as well as Vandana, acted under color state law by conspiring with the

school district defendants. "[P]rivate defendants can be subject to a [section] 1983

action only if they conspired with the state actors to violate [the plaintiffs'] civil rights."

Johnson v. Dossey, 515 F.3d 778, 782 (7th Cir. 2008). For reasons discussed below,

however, the Court concludes plaintiffs have not adequately alleged such a conspiracy.

The Court therefore dismisses counts 1 through 3 as to Vandana, but not Massey and

Roselli, as there is a separate basis to hold them liable under section 1983.

As to Massey and Roselli, "[a]nyone whose conduct is 'fairly attributable to the

state' can be sued as a state actor under § 1983." Filarsky v. Delia, 566 U.S. 377, 383

(2012) (quoting Lugar v. Edmonson Oil Co, Inc., 457 U.S. 922, 937 (1982)). In Hefley v.

Bruch, 276 F. App'x 506 (7th Cir. 2008), the Seventh Circuit noted that "lawyers do not

act under color of law merely by representing their clients." Id. at 507. See also

Hutcherson v. Smith, 908 F.2d 243, 245 n.2 (7th Cir. 1990) (same). Rather, to

determine whether an attorney working on behalf of a municipality acts under color of

state law, the Court must look to the attorney's function in carrying out his or her

responsibilities to the municipality. See Rodriguez v. Plymouth Ambulance Serv., 577

F.3d 816, 825 (7th Cir. 2009).

In Rodriguez, the Seventh Circuit noted that the Supreme Court had "applied this

functional approach to determine whether a particular individual acted under the color of

state law in a variety of contexts," including an attorney's conduct as a public defender.

Id. at 825 n.13. The functional analysis considers the relationship between the state,

the private entity, and the individual. Id. at 826. The setting in which the interaction

occurs is also significant. Id. The Seventh Circuit concluded in Rodriguez that a private

hospital acted under color of state law when it treated a prisoner, because the hospital

had an "ongoing relationship" with the prison to provide medical services "tied to the

state's responsibility for [the prisoner's] overall medical care." Id. at 831. The Court

noted that the prisoner, given his incarceration, was not free to consider another

hospital. Id. at 826-27.

Here, Massey and Roselli, through their employment, both performed functions

that render it plausible that they acted under color of state law. The Julkas allege that

Massey acted as an investigator for the District and Roselli acted as a mediator during

the District's grievance procedure. See Polk County v. Dodson, 454 U.S. 312, 325

(1981) (holding that an attorney working as a public defender may act under color of

state law while performing administrative and possibly investigative functions). Both

Massey's investigation and Roselli's mediation supported the school district defendants'

efforts to facilitate the grievance process. The Julkas were bound to accept these

services, as they did not have the choice to select another investigator, mediator, or

grievance process. Thus a reasonable inference may be drawn that Massey and

Roselli each functioned in a governmental capacity and acted under color of state law.

Third, Robbins Schwartz has also moved to dismiss counts 1 through 3 on the

ground that the Julkas have not alleged a basis for its liability as a private entity under

section 1983. The Julkas assert that Shields v. Illinois Department of Corrections, 746

F.3d 782, 789 (7th Cir. 2014), permits a private corporation to be held liable under

section 1983 on a theory of respondeat superior for its employees' misconduct. As

discussed above, Julkas have adequately alleged for purposes of a Rule 12(b)(6)

motion that Massey and Roselli acted under color of state law. But the Julkas wrongly

rely upon Shields as support for their claim against the Robbins Schwartz firm, for which

Massey and Roselli worked.

The Seventh Circuit has held that "a private corporation is not vicariously liable

under section 1983 for its employees' deprivations of others' civil rights." Iskander v.

Village of Forest Park, 690 F.2d 126, 128 (7th Cir. 1982). Rather, to recover against

Robbins Schwartz, the plaintiffs must allege that their constitutional injuries were

caused by a policy, practice, or custom of the law firm. Shields, 746 F.3d at 796. Thus

Shields expressly rejects the respondeat superior theory that the Julkas offer. And they

have not alleged that Robbins Schwartz had a policy, practice, or custom that caused a

deprivation of any of the plaintiffs of their constitutional rights.

The Julkas also confusingly assert that the relationship between the District 53

and Robbins Schwartz "circumvents" the need to show a policy or practice to incur

liability. Without more, the Julkas' argument is insufficient to rope the law firm into

section 1983 liability. The law firm is entitled to dismissal of counts 1 through 3.

III. Due Process Clause

The Court next reviews the arguments regarding the sufficiency of the seven

claims asserted against the remaining defendants.2 In doing so, the Court declines any

suggestion to convert the Badlanis' motion to dismiss into a motion for summary

judgment.

In count 1, the Julkas allege that Massey, Roselli, the District 53, the School

Board, Wennstrom, Voliva, and Hanzlik violated the due process rights of R.J. and A.J.

The Julkas assert a procedural due process claim, contending that the defendants

deprived R.J. and A.J. of a protectable interest without proper procedure, as opposed to

a substantive due process claim, in which a plaintiff asserts the government acted

arbitrarily, irrespective of the procedure used. See Doe v. City of Lafayette, 377 F.3d

757, 768 (7th Cir. 2004). To state a claim for violation of procedural due process, the

Julkas must allege that they suffered the deprivation of a protectable interest by the

government and that the procedure accompanying that deprivation was inadequate. Id.

The Julkas' claim founders on the requirement of a liberty or property interest

2 In support of their motion to dismiss, the defendants rely on Judge Ronald Guzman's

decision in Jain v. Butler Illinois School District 53, 17 C 0002 (N.D. Ill. Sept. 5, 2017).

The Jains are another family that was accused of similar misconduct by the school

district defendants and then sued them. But the decision the defendants offer is an

order dismissing a complaint without prejudice. The plaintiffs in Jain filed an amended

complaint, and the litigation is still ongoing.

protected by the Due Process Clause. They cite a number of deprivations: the school

district defendants stigmatized them; they kicked A.J. and R.J. off of the GeoBee; they

deprived the Julkas of the procedures guaranteed by the District's Uniform Grievance

Procedure; and they imposed penalties that were described as a "severe sanction."

"[T]he range of interests protected by procedural due process is not infinite," Board of

Regents of State Colleges v. Roth, 408 U.S. 564, 570 (1972), and none of the interests

that the plaintiffs have put forward fall within the protected range.

A. Reputational interest

First, the Julkas contend that there is a protected liberty or property interest

affected whenever the government's conduct affects a person's "good name, reputation,

honor, or integrity[.]" Pls.' Resp. to School Dist. Defs.' Mot. to Dismiss at 5 (quoting

Roth, 408 U.S. at 573). A bare injury to reputation, however, does not suffice. See,

e.g., Alston v. City of Madison, 853 F.3d 901, 909 (7th Cir. 2018). Rather, a plaintiff

must adequately allege what is sometimes referred to as "stigma-plus." A plaintiff may

be able to assert a viable due process claim on a stigma-plus theory by alleging that the

government defamed her and that the defamation imposed an "alteration of legal

status," for example, as infringement of an employee's "liberty of occupation."

Townsend v. Vallas, 256 F.3d 661, 669-70 (7th Cir. 2001).

The Court assumes for present purposes that the Julkas have adequately

alleged defamation, but they have not alleged that the defamation was accompanied by

a relevant "alteration of legal status." The closest they come is their contention that

Rahul had to leave his job. But even "defamation coupled with a firing is not sufficient"

to state a stigma-plus claim. Id. at 670 n.9 (emphasis added). Rather, the plaintiff must

show that the defamation "had the effect of blacklisting the employee from employment

in comparable jobs." Id. at 670. See also, e.g., Hojnacki v. Klein-Acosta, 285 F.3d 544,

548-49 (7th Cir. 2002). The Julkas do not allege this. Their allegation—that Rahul was

forced to accept a lesser-paying job—actually works against their stigma-plus claim,

because it indicates that he is still employable in his field. See First Am. Compl. ¶ 154.

Because the Julkas do not allege Rahul's liberty of occupation has been impaired, they

cannot assert a protectable interest on this basis.

Nor have the Julkas alleged that A.J. or R.J. experienced an alteration of status

sufficient to invoke the Due Process Clause. As the Seventh Circuit has held, a

sufficient alteration of legal status occurs when "a right or status previously recognized

by state law" is altered or extinguished. Brown v. City of Michigan City, 462 F.3d 720,

730 (7th Cir. 2006). In Brown, the Seventh Circuit held that the municipality's decision

to ban the plaintiff from the public parks of Michigan City did not constitute a deprivation

of a right that brought the requirements of due process into play, as Indiana state law

granted park officials discretion to set conditions on the public's entry to parks. Id. at

731. In other words, there was no state-vested right to public parks that was altered by

the state's action. Likewise, the opportunity of District 53 students to participate in

extracurricular activities, such as the GeoBee, is recognized by the District as a

"privilege," not a "right." D.E. 72, Pl.'s Ex. I (Policy 7220) ("Extra-curricular activities . . .

are a student privilege, not a right."). Courts in this district have recognized, and this

Court concludes, that student participation in extracurricular activities in District 53 is not

a legal right the deprivation of which invokes the requirements of constitutional due

process. Piekosz-Murphy v. Bd. of Ed. of Comm. High Sch. Dist. No. 230, 858 F. Supp.

2d 952, 959 (N.D. Ill. 2012) (collecting cases). For these reasons, the Court concludes

that the Julkas have failed to allege the "stigma-plus" needed to support a due process

claim.

B. Education interest

Next, the Julkas contend that the school district defendants' decision to exclude

R.J. and A.J. from extracurricular activities by itself implicated an interest protected

under the Due Process Clause. The Julkas rely upon Camlin v. Beecher Community

School District, 339 Ill. App. 3d 1013, 791 N.E.2d 127 (2003). But the deprivation in

Camlin is easily distinguishable from that of the present case, as it affected a very

different interest: "entitlement to a public education." Id. at 1018-19, 791 N.E.2d at

131-32. The plaintiff in Camlin faced expulsion from high school for selling marijuana

during a school function. Id. at 1016, 791 N.E.2d at 129. As in Goss v. Lopez, 419 U.S.

565, 573 (1975), in which the Supreme Court held that students in Ohio were entitled to

the public education that the state made available, the court in Camlin concluded the

plaintiff had a protectable interest in his public education. 339 Ill. App. 3d at 1018-19,

791 N.E.2d at 131-32.

Unlike in Camlin, the school district defendants have not tried to revoke R.J. or

A.J.'s right to a public education. Even after the events at issue, they continued to

receive an education in District 53. Rather, the District decided that R.J. and A.J. could

no longer participate in academic competitions. Even though the Julkas assert "the

importance of academic competitions to a given student's educational development,"

Pls.' Resp. to School District Defs.' Mot. to Dismiss at 7, it does not follow that the

deprivation of the ability to participate in academic competitions is equivalent to a

deprivation of the student's entitlement to a public education. Camlin, therefore, does

not aid the Julkas' effort to show that the District deprived them of an interest protected

by the Due Process Clause. And as discussed earlier, District 53 expressly describes

participation in extracurricular activities as a "privilege," not a "right." D.E. 72, Pls.' Ex. I

(Policy 7220 Extracurricular and Co-Curricular Activities). In Piekosz-Murphy, the court

concluded that a student did not have a protectable interest in membership in the

National Honor Society when the school district's policy stated that participation was a

"privilege, not a right." Piekosz-Murphy, 858 F. Supp. 2d at 959. The Julkas have not

alleged that R.J. and A.J.'s interest in participating in academic competitions is

protected under the Due Process Clause.

C. Procedural entitlements

The Julkas also contend that they possess a protectable interest in the

procedural rights codified by the District's Uniform Grievance Policy (UGP) and that the

District deprived them of this interest through numerous violations of the UGP. But the

school board's compliance with the UGP is not a protectable interest. "[T]he failure to

conform with the procedural requirements guaranteed by state law does not by itself

constitute a violation of federal due process." Martin v. Shawano-Gresham Sch. Dist.,

295 F.3d 701, 706-07 (7th Cir. 2002) (holding that plaintiffs could not state a due

process claim on a school's failure to comport with its own policies while issuing a

suspension). The school district defendants' purported departures from the UGP do not

affect a protectable interest.

The Court's holding is consistent with Lewis v. Hayes, 152 Ill. App. 3d 1020, 505

N.E.2d 408 (1987). In Lewis, an Illinois appellate court concluded that a probationary

police officer possessed a property interest in his job, because a local rule stated that

probationary employees could only be terminated for cause. Id. at 1023-24, 505 N.E.2d

at 410-11. The Julkas argue Lewis supports the proposition that there is a protectable

interest in a municipality following its own policies. The protectable property interest

that Lewis recognized, however, was the plaintiff's "employment as a probationary

officer," not the municipality's compliance with its own procedures.

D. "Severe sanction"

The Julkas also offer the argument that, because Wennstrom wrote that they had

"severe sanction," due process protections must attach. The premise—that a

punishment described as a "severe sanction" must affect a protectable interest—does

not enjoy any support in the case law and is not further developed by the Julkas in their

submissions to the Court. The Court need not resolve the plaintiffs' "underdeveloped,

conclusory, [and] unsupported" argument. Puffer v. Allstate Ins. Co., 675 F.3d 709, 718

(7th Cir. 2012).

In sum, the Julkas have failed to allege a protectable property interest. For this

reason, their procedural due process claim fails as a matter of law, and the Court need

not address whether the process the defendants provided was adequate. The Court

dismisses count 1.

IV. Equal Protection Clause

In count 2, the Julkas contend that Massey, Roselli, the District, the Board,

Wennstrom, Voliva, and Hanzlik violated the equal protection rights of R.J. and A.J.

The Julkas argue count 2 as a class-of-one equal protection claim. "[T]he Equal

Protection Clause may give rise to a cause of action on behalf of a class of one where

the plaintiff does not allege membership in a [protected] class or group if the plaintiff can

show that she has been intentionally treated differently from others similarly situated

and that there is no rational basis for the difference in treatment." Kurtis B. v. Kopp, 725

F.3d 681, 685 (7th Cir. 2013) (citing Village of Willowbrook v. Olech, 528 U.S. 562, 564

(2000) (internal punctuation omitted)).

The defendants argue that the Julkas' claim is deficient because (1) they do not

allege that they were treated differently from others who are similarly situated and (2)

the government possesses a rational basis for treating them differently. The Court

concurs.

The Julkas allege that the Badlani children are similarly situated to A.J. and R.J.

An individual is "similarly situated" to the plaintiff only if "identical or directly comparable

in all material respects." LaBella Winnetka, Inc. v. Village of Winnetka, 628 F.3d 937,

942 (7th Cir. 2010) (dismissing a class-of-one claim for failure to adequately allege a

similarly situated party). The plaintiffs allege that the Badlani children could have

accessed the same materials as the Julka children—Komal shared them with Vandana

over the phone—but the Julka children were punished and the Badlani children were

not. As the defendants correctly respond, however, the Badlanis are not similarly

situated in a way that would support an equal protection claim. Komal read a handful of

questions to Vandana over the phone, and Vandana reported them to school

administrators, whereas the Julkas procured the test questions themselves—a much

larger set—and their children could have accessed them for a longer period. In short,

there are material differences between the position of the Julka children and the Badlani

children that render them not comparable for purposes of an equal protection claim.

For this same reason, the Julka cannot show that District 53 lacked a rational

basis for treating the Julka and Badlani children differently. "All it takes to defeat the

plaintiffs' claim is a conceivable rational basis for the difference in treatment," Kurtis B.,

725 F.3d at 686, and the Court can conceive of such a basis: the District could have

rationally believed the Julka students benefitted from their parents' attempt to cheat the

GeoBee but that the Badlani children did not similarly benefited. (In so stating, the

Court merely identifies a "conceivable rational basis for the difference in treatment"; it

does not reach a factual finding on what actually occurred.) Because the Julkas cannot

plausibly allege a class-of-one claim, the Court dismisses count 2.

V. First Amendment retaliation

In count 3, the Julkas allege that Massey, Roselli, the District and the Board

violated their First Amendment rights by retaliating against them for filing a grievance.

The defendants argue that the First Amendment does not come into play because the

Julkas' grievance did not involve a matter of public concern.

The question before the Court is whether the First Amendment protects the

Julkas from retaliation only if the grievance, the speech (or petition) at issue, involved a

matter of public concern. In this regard, the school district defendants rely upon

Landstrom v. Illinois Department of Children and Family Services, 892 F.2d 670 (7th

Cir. 1990). The Seventh Circuit held in that case that parents who communicated

"purely personal complaints" to a school could not allege a First Amendment retaliation

claim because the First Amendment only protects speech that touches on matters of

public concern. Id. at 679. The defendants argue that the Julkas' grievance, which

challenged the inclusion of disciplinary materials in the students' files, was "purely

personal" and thus does not provide the predicate for a First Amendment retaliation

claim.

As other courts within the Seventh Circuit have already noted, however,

Landstrom imported the "public concern" standard from a different area of First

Amendment law. The public concern standard is part of the Connick-Pickering test,

which applies to individuals employed by the government who bring a retaliation claim

against the government. The Supreme Court held in Connick that the First Amendment

protects the rights of public employees to speak out on issues of public concern, but not

purely personal matters, as "the government has legitimate interests in regulating the

speech of its employees that differ significantly from its interests in regulating the

speech of people generally." Connick v. Myers, 461 U.S. 138, 156-57 (1983). The

issue in the Connick-Pickering context—balancing the government's interests as an

employer against the employee's interests in speaking out on matters of public

concern—is not present when a parent, not employed by a school district, speaks out

against the district, a public body. As several district courts have held, Landstrom,

especially in light of subsequent Seventh Circuit cases, does not require the Court to

extend the public concern requirement to speech by private citizens. Bridges v. Gilbert,

557 F.3d 541, 551 (7th Cir. 2009) (holding, in the context of prisoner litigation, that the

public concern requirement does not extend to an individual who is not an employee).

See also Van Dyke v. Barnes, No. 13 C 5971, 2015 WL 148977, at *5-6 (N.D. Ill. Jan.

12, 2015); Nolan v. Village of Dolton, No. 10 C 7357, 2011 WL 1548343, at *2-3 (N.D.

Ill. Apr. 21, 2011).

In any event, even if the public concern requirement applies to the Julkas' claim,

their grievance can be plausibly read to involve a matter of public concern. As the

Julkas contend, the grievance was a matter of public concern, for in it they asserted that

District 53 failed to follow its own polices, a practice that threaten any other family within

the district who might be disadvantaged by its disregard of its own policies. See Kyung

Hye Yano v. City Colls. of Chicago, No. 08 C 4492, 2013 WL 3791616, at *8 (N.D. Ill.

July 19, 2013) (holding that a college student's complaints about poor lab safety

practices implicated the public's interest in the college's observance of its own safety

policies). Moreover, the District itself seems to have treated the episode as a matter of

public concern by sending to parents several communications describing the actions it

had taken against the (albeit unnamed) Julkas and the importance of the episode to the

District's public reputation. In sum, the Court concludes that the public concern

requirement, assuming it applies, does not impose a barrier to the Julkas' retaliation

claim.

To assert a claim for First Amendment retaliation, the Julkas must show that

"[their] speech was constitutionally protected, that the Board took an adverse action

against [them], and that its action was motivated by her constitutionally protected

speech." Mosely v. Bd. of Educ. of City of Chicago, 434 F.3d 527, 533 (7th Cir. 2006).

The Julkas have adequately alleged each of these three elements. The grievance was

constitutionally protected speech or petition, as neither the "public concern" requirement

nor any other reason to strip speech of First Amendment protection applies. Second,

the Julkas have adequately alleged that the District and the Board took an adverse

action against them by inserting negative materials to R.J.'s academic file after the

grievance was filed. Adding new, potentially harmful materials to a child's academic file

is more than adequate to deter a "person of ordinary firmness" from engaging in further

speech. Id. at 534. Third, the Julkas have adequately alleged that the conduct of the

District and the Board was motivated by the grievance. As the complaint alleges, the

Julkas filed their grievance in February 2016. They allege that after this, the District and

the Board added materials to R.J.'s academic file that falsely described academic

dishonesty that supposedly had taken place in 2015, well before anything involving the

GeoBee occurred. First Am. Compl. ¶¶ 80-84. If one takes the factual allegations as

true and draws reasonable inferences in favor of the Julkas, as required on a motion to

dismiss for failure to state a claim, the sequence of events is sufficient to permit a

reasonable inference that the untimely addition of negative materials to R.J.'s academic

file was prompted by the Julkas' filing of the grievance.

Although the Julkas can establish that the District and the Board retaliated

against them by adding the 2015 materials, they have not alleged any facts that would

indicate that Massey or Roselli were involved in this process. There is no allegation in

the complaint that Massey, who worked as an investigator, or Roselli, who worked as a

mediator, helped to insert the 2015 materials into R.J.'s academic file. The Court

concludes that the Julkas have failed to allege that Massey or Roselli violated their First

Amendment rights through retaliation. Thus the Court need not address Massey or

Roselli's qualified immunity arguments.

Separately, the school district defendants contend that the District, the Board,

and Hanzlik, all of whom were named in the state-court administrative review suit that

the Julkas filed, are entitled to dismissal of count 2 and the District and Board are

entitled to dismissal of count 3 under the doctrine of claim preclusion, or res judicata.

Because the Court has already dismissed count 2 on other grounds, it considers this

point only with respect to count 3. "Under Illinois law, to constitute res judicata, a

decision must involve (1) identity of the parties or their privies in the two suits; (2)

identity of causes of action in the prior and current suit; and (3) a final judgment on the

merits in the prior suit." Pirela v. Village of North Aurora, 935 F.2d 909, 911 (7th Cir.

1991).

It is doubtful that defendants can meet the third requirement of this test, because

the administrative review lawsuit was dismissed not on the merits, but on the basis of

mootness. D.E. 72, Def.'s Ex. N, at 6 (Aug. 21, 2017 court transcript). See Gassmann

v. Clerk of Circuit Ct. of Cook Cty., 2017 IL App (1st) 151738, ¶ 33, 71 N.E.3d 783, 792.

Even were that not the case, however, the dismissal of state court lawsuit would not

preclude the Julkas' First Amendment retaliation claim, because the two causes of

action are not identical. Illinois courts have used two different tests to determine

whether two cases involve the same cause of action for purposes of claim preclusion:

the "same evidence" approach and the "transactional" approach. Id. at 912. Neither

test produces an outcome that favors the application of claim preclusion here. First,

under the "same evidence" approach, the Court considers whether "the same evidence

would sustain both actions." Id. In count 3, the Julkas allege that the District and the

Board added improper materials from purported 2015 misconduct to R.J.'s student

record after they filed a grievance regarding the 2016 letters and related actions by the

District and the Board. But the 2015 materials that the Julkas allege were wrongly

inserted into R.J.'s file were not at issue in the original state court claim, which dealt with

the issuance of the 2016 letters. Likewise, under the "transactional approach," which

concerns whether each action "arise[s] out of the same group of operative facts," id., the

defendants fare no better, as the Julkas' First Amendment retaliation claim involves the

addition to R.J.'s file of the materials about the purported 2015 misconduct, not the

District and the Board's decision to include the 2016 letters in the students' files. The

doctrine of claim preclusion does not therefore bar the Julkas from bringing count 3.

In sum, the Court grants Massey and Roselli's motion to dismiss count 3, but

denies the motion as to the School Board and School District, the only other defendants

named in count 3.

VI. Civil conspiracy

In count 4, the Julkas contend that Robbins Schwartz, Massey, Roselli, Vandana,

and the school district defendants conspired to deprive the Julkas of their constitutional

rights. To sustain this claim, the Julkas must allege that two or more individuals agreed

to deprive them of their constitutional rights. Cooney v. Casady, 735 F.3d 514, 519 (7th

Cir. 2013). At the motion to dismiss stage, the plaintiff must allege facts establishing a

"plausible account of a conspiracy." Geinosky v. City of Chicago, 675 F.3d 743, 749

(7th Cir. 2012).

In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court

concluded that the plaintiffs' complaint, alleging an antitrust conspiracy, was properly

dismissed, as the allegedly conspiratorial conduct was equally likely to have resulted

from "lawful" and "independent" goals. Id. at 566-67. Dismissal is appropriate here for

similar reasons. The Julkas allege that "[f]rom the moment that Badlani brought false

accusations of academic misconduct by the Plaintiffs to the attention of the School

District and the School Board, the defendants named in this Count IV agreed, implicitly

or explicitly, to commit the illegal acts described herein as well as defame the Plaintiffs."

First Am. Compl. ¶ 141. The other facts alleged in the Julkas' complaint, however, do

not add up to a plausible allegation that the school district defendants entered into an

agreement with the Badlanis in imposing sanctions on the Julkas. And the Court has

separately concluded that there is no allegation supporting a plausible contention that

the Robbins Schwartz attorneys had anything to do with the only constitutional

deprivation still at issue, namely the placement of the letter involving the 2015

allegations into R.J.'s file allegedly in retaliation for the Julkas' filing of a grievance.

Because the Julkas have not plausibly alleged the existence of a conspiracy, the Court

dismisses count 4 and thus need not address the school district defendants' arguments

regarding the intracorporate conspiracy doctrine or qualified immunity.

VII. Intentional infliction of emotional distress

In count 5, the Julkas assert a state-law claim of intentional infliction of emotional

distress (IIED) against all of the defendants other than Ravi Badlani. In Illinois, a

plaintiff must allege three elements to adequately assert IIED: "(1) the conduct involved

must be truly extreme and outrageous; (2) 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 and (3) the conduct must in fact cause

severe emotional distress." Honaker v. Smith, 256 F.3d 477, 490 (7th Cir. 2001) (citing

McGrath v. Fahey, 126 Ill. 2d 78, 85, 533 N.E.2d 806, 809 (1988)).

The school district defendants argue that the Julkas have failed to state an IIED

claim because the conduct, as alleged, is not "truly extreme and outrageous." The

complaint, which the Court must construe as true on a motion to dismiss, includes

allegations that: (1) the defendants inserted materials that falsely accused R.J., a child,

of engaging in academic dishonesty in 2015; (2) these false materials were added in

retaliation against the parents for using the school district's grievance procedures; (3)

the school district publicized the Julkas' purported dishonesty and the steps it took

against them; (4) the defendants attempted to convince the Julkas to move out of the

district; and (5) the plaintiffs suffered "extreme mental distress" and "emotional and

physical injuries." First Am. Compl. ¶¶ 150-55. The court concludes that the Julkas

have adequately alleged an IIED claim against the school district defendants who were

engaged in this conduct.

The law firm defendants argue that count 5 should be dismissed as directed

against them, because the Julkas have not specifically alleged how the law firm

defendants contributed to any of the IIED conduct. In response, the Julkas assert in a

conclusory way that "the Law Firm Defendants were heavily involved in the entire

process," Pls.' Resp. to Law Firm Defs.' Mot. to Dismiss at 10, but they fail to point to

any allegations of fact suggesting that the law firm or its attorneys were involved in any

conduct that was "truly extreme and outrageous." Honaker, 256 F.3d at 490. Because

none of the Julkas' allegations in this regard involve the law firm defendants, the Court

dismisses count 5 as against those defendants. For this reason, the Court need not

resolve their arguments regarding litigation privilege or qualified immunity.

The Julkas have also asserted count 5 against Vandana Badlani. But the

Badlanis' motion to dismiss does not address count 5; it only addresses count 4 and

count 6. In the absence of a motion to dismiss, there is no basis to dismiss count 5

against Vandana.

VI. Spoliation

In count 6, the Julkas allege that Wennstrom, Vandana and Ravi Badlani

negligently permitted spoliation of evidence by failing to retain the alleged audio

recording of the conversation between Vandana and Komal. The complaint alleges that

Komal and Vandana had a telephone conversation on January 16, during which

Vandana accused Komal of trying to cheat on the GeoBee, and that Ravi surreptitiously

recorded Vandana's end of the conversation. Wennstrom, at some point, prepared a

transcript of the recording, which the Julkas later found. The Julkas further allege that

the transcript was used repeatedly throughout the school district's review of the GeoBee

cheating accusations. The defendants concede that the recording no longer exists.

To assert a spoliation claim, a plaintiff must allege that (1) the defendant

possessed a duty to preserve evidence, (2) the defendant breached that duty, (3) an

injury from the breach, and (4) damages. Boyd v. Travelers Ins. Co., 166 Ill. 2d 188,

195, 652 N.E.2d 267, 270 (1995). Illinois law also requires that the defendant asserted

"possession" or "control" over the evidence in question. Dardeen v. Kuehling¸ 213 Ill. 2d

329, 340, 821 N.E.2d 227, 233 (2004). The defendants argue that the plaintiffs have

failed to adequately allege a duty to preserve the recording.

The Illinois Supreme Court has established a two-step process for determining

whether a duty to preserve evidence exists. First, there must be a relationship between

plaintiff and defendant, such as an "agreement, contract, statute, special circumstance,

or voluntary undertaking" that gives rise to a duty to preserve the evidence. Id. at 336,

821 N.E.2d at 231. Second, a reasonable person must be able to foresee that the

evidence would be material to a potential civil action. Id. See also Boyd, 166 Ill. 2d at

195, 652 N.E.2d at 271. As the Seventh Circuit has noted, "[i]t would be an

understatement to say that this area of Illinois law is not governed by bright-line rules."

Schaefer v. Universal Scaffolding & Equip., LLC, 839 F.3d 599, 609 (7th Cir. 2016)

The Julkas' briefing is not particularly helpful on this question. They do not argue

why the defendants owed them a duty to preserve evidence using the legal standards

set out above, and nothing in the pleadings indicates that an agreement, contract, or

statue is applicable here. Based on the record before the Court, it is unclear whether a

"special circumstance" or "voluntary undertaking" by any of the defendants imposed a

duty to preserve the evidence. Nor is it clear whether Wennstrom ever possessed the

recording, which may be needed to assert a spoliation claim against her (unless,

perhaps, the claim against her is for aiding and abetting, an issue the Court need not

address at this point). Dardeen, 213 Ill. 2d at 340, 821 N.E.2d at 233. For this reason,

the Court grants the defendants' motion to dismiss count 6.

VII. Injunctive relief

The final claim the Julkas assert is a claim for injunctive relief against the District

and the Board. In count 7, they request injunctive relief from the Court ordering the

District and the Board to remove any false or negative information entered into R.J. and

A.J.'s files in retaliation. The school district defendants contend that count 7, like count

3, is barred by the purported claim-preclusive effect of the prior state court judgment.

For the reasons already discussed, however, the state court decision does not preclude

count 3. The Court declines to dismiss count 7 for the same reason.

Conclusion

For the foregoing reasons, the Court grants the defendants' motions to dismiss in

part and denies them in part [dkt. nos. 35, 38, 43]. Counts 1, 2, 4, and 6 are dismissed.

The Court dismisses count 3 as to the law firm defendants but declines to dismiss that

claim as to the other defendants named in count 3. The Court dismisses count 5 as to

the law firm defendants but declines to dismiss that claim as to Vandana Badlani and

the school district defendants. The Court declines to dismiss count 7. The Court also

dismisses Wennstrom, Voliva, and Hanzlik insofar as they are named in their official

capacities. Finally, the Court declines to dismiss the District 53 Board as a defendant.

The case is set for a status hearing on April 9, 2018 at 9:30 am.

United States District Judge

Date: March 26, 2018

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