Doe v. Board of Education District 299

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JANE DOE and JOHN DOE, as )

Guardians and Parents and Next Friends of )

JAMES DOE, a Disabled Person, )

)

Plaintiffs, ) No. 19 C 00263

)

v. )

) Judge Edmond E. Chang

BOARD OF EDUCATION OF THE CITY )

OF CHICAGO; HILARIO VELARDE; )

and DARIUS REYNOLDS, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

The parents of a disabled student at Ray Graham Training Center High School

in Chicago have brought this lawsuit on their son’s behalf.1 See R. 19,2 Am. Compl.

¶¶ 5-7, 15-16. The Plaintiffs allege that a school employee sexually abused their son,

and they bring several federal and state law claims against the Chicago Board of

Education, as well as school employees Hilario Velarde and Darius Reynolds.3

Specifically, the Plaintiffs claim that the Board discriminated against the

student (who is going by “James Doe” on the public docket) in violation of Title IX of

the Education Amendments of 1972, 20 U.S.C. § 1681, et seq. (Count 1); Section 504

of the Rehabilitation Act, 29 U.S.C. § 794 (Count 2); and Title II of the Americans

1The Court has federal-question jurisdiction under 28 U.S.C. § 1331 and supplemental

jurisdiction over the state-law claims under 28 U.S.C. § 1367.

2Citations to the record are noted as “R.” followed by the docket number.

3In light of the sexual-abuse allegations, the parents and the student are all

proceeding on the public docket using Doe monikers. The motion to do so, R. 20, is granted.

See Doe v. Maywood Hous. Auth., 71 F.3d 1294, 1297 (7th Cir. 1995).

with Disabilities Act (ADA), 42 U.S.C. § 12132 (Count 3). Against the alleged abuser

(Velarde), the Plaintiffs bring equal protection (Count 4), Fourth Amendment (Count

5), and substantive due process (Count 6) claims. Against Reynolds, who was a

special-education assistant, the Plaintiffs bring a failure-to-intervene claim (Count

10). In addition to the federal claims, the Plaintiffs bring state-law claims for

negligence (Count 7) and willful and wanton conduct (Count 8) against the Board, as

well as a battery claim against both the Board and Velarde (Count 9).

The Defendants now seek to dismiss the Amended Complaint for failure to

adequately state a claim. Fed. R. Civ. P. 12(b)(6). See generally R. 24; R. 27; R. 37.

For the reasons discussed below, the Board’s and Velarde’s motions are denied in part

and granted in part, and Reynolds’ motion is denied.

I. Background

For purposes of this motion, the Court accepts as true the factual allegations

in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007). James Doe is an adult

but was a student at Chicago’s Ray Graham Training Center High School, where he

received specialized education for his physical and intellectual disabilities, including

cerebral palsy. Am. Compl. ¶¶ 7, 15, 17. As a student at Ray Graham, James had an

individualized education plan (commonly known as an “IEP”) to address his

disabilities, which “required physical assistance to perform many acts of daily living,

including using the bathroom … .” Id. ¶¶ 17-18. Defendant Velarde, who worked at

the school as a Special Education Classroom Assistant, was assigned to provide

James with physical assistance. Id. ¶ 20. Defendant Reynolds also worked at Ray

Graham as a Special Education Classroom Assistant. Id. ¶ 12.

On a late March morning in 2018, Velarde and Reynolds gave James a shower

and Velarde touched James’ penis multiple times. Am. Compl. ¶¶ 21-22. Reynolds

saw this happen but did not do anything to stop it. Id. ¶ 22. More than two months

later, the school administration notified the Chicago Police Department of allegations

that James Doe had suffered sexual abuse. Id. ¶ 24. Reynolds then revealed to police

that he had also observed Velarde touching James’ penis on another occasion. Id. ¶

25. The Plaintiffs filed this lawsuit against the Board, Reynolds, and Velarde less

than a year later. R. 1; R. 19.

II. Legal Standard

Under Federal Rule of Civil Procedure 8(a)(2), a complaint generally need only

include “a short and plain statement of the claim showing that the pleader is entitled

to relief.” Fed. R. Civ. P. 8(a)(2). This short and plain statement 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) (cleaned up).4 The Seventh Circuit

has explained that this rule “reflects a liberal notice pleading regime, which is

intended to ‘focus litigation on the merits of a claim’ rather than on technicalities that

might keep plaintiffs out of court.” Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009)

(quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)).

4This Opinion uses (cleaned up) to indicate that internal quotation marks, alterations,

and citations have been omitted from quotations. See Jack Metzler, Cleaning Up Quotations,

18 Journal of Appellate Practice and Process 143 (2017).

“A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to

state a claim upon which relief may be granted.” Hallinan v. Fraternal Order of Police

of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). “[A] complaint must contain

sufficient factual matter, accepted as true, to state a claim to relief that is plausible

on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). These allegations

“must be enough to raise a right to relief above the speculative level.” Twombly, 550

U.S. at 555. The allegations that are entitled to the assumption of truth are those

that are factual, rather than mere legal conclusions. Iqbal, 556 U.S. at 678-79.

III. Analysis

A. Title IX (Count 1)

The Plaintiffs’ first claim is for sex discrimination under Title IX, 20 U.S.C.

§ 1681, et seq. “Title IX prohibits sex discrimination by recipients of federal education

funding.” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005). See also 20

U.S.C. § 1681(a) (“[N]o person … shall, on the basis of sex, be excluded from

participation in, be denied the benefits of, or be subjected to discrimination under any

education program or activity receiving Federal financial assistance.”). Title IX’s ban

on “discrimination” prohibits a teacher or other school employee from sexually

harassing or abusing a student. See, e.g., Franklin v. Gwinnett Cty. Pub. Schs., 503

U.S. 60, 75 (1992) (“[W]hen a supervisor sexually harasses a subordinate because of

the subordinate’s sex, that supervisor ‘discriminate[s]’ on the basis of sex. … [T]he

same rule should apply when a teacher sexually harasses and abuses a student.”

(cleaned up)); Mary M. v. North Lawrence Cmty. Sch. Corp., 131 F.3d 1220, 1224-25

(7th Cir. 1997) (analyzing a student’s allegations of sexual abuse by a cafeteria

worker as a Title IX claim). But because Title IX does not allow for vicarious liability,

students who are sexually harassed by school employees are only entitled to recover

damages against the school district if a school official with “authority to institute

corrective measures” had actual knowledge of, and was deliberately indifferent to,

the harassment. Doe v. St. Francis Sch. Dist., 694 F.3d 869, 871 (7th Cir. 2012). If

that hurdle is cleared, a plaintiff in a Title IX case must also adequately allege that

(1) the educational institution received federal funding; (2) the harassment was based

on sex; and (3) the harassment was so pervasive or severe that it altered the

conditions of the plaintiff’s education, or deprived the plaintiff of access to educational

opportunities or benefits provided by the school. See North Lawrence Cmty. Sch.

Corp., 131 F.3d at 1228.

Here, the Board does not dispute that it received federal funding or that the

alleged harassment was based on sex. See R. 27, Bd.’s Br. at 4-9. Instead, the Board

argues that the Plaintiffs failed to adequately allege that “a school official who … had

authority to institute corrective measures on the Board’s behalf had actual notice of

and was deliberately indifferent to Velarde’s alleged sexual misconduct.” Id. at 4. The

Board also contends that there are insufficient allegations that James Doe “was

deprived of educational opportunities as a result of the sexual misconduct.” Id. at 4.

Taking the arguments in reverse order, the Board is wrong that the alleged

abuse was not severe or pervasive enough to alter James’ educational opportunities.

Whether misconduct “rises to the level of actionable harassment … depends on a

constellation of surrounding circumstances, expectations, and relationships[.]” Davis

ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 651 (1999). There is a

distinction between teacher-on-student harassment and peer harassment: “[t]he

relationship between the harasser and the victim necessarily affects the extent to

which the misconduct can be said to breach Title IX’s guarantee of equal access to

educational benefits … .” Davis, 526 U.S. at 653 (cleaned up). In fact, “courts

recognize that harassment by a teacher inherently harms students and affects their

educational experience: ‘No one questions that a student suffers extraordinary harm

when subjected to sexual harassment and abuse by a teacher, and that the teacher’s

conduct is reprehensible and undermines the basic purposes of the educational

system.’” Doe I v. Bd. of Educ. of City of Chi., 364 F. Supp. 3d 849, 861 (N.D. Ill. 2019)

(quoting Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 292 (1998)).

Here, the Plaintiffs allege that “[t]he discrimination and harassment was so

severe and pervasive that it altered the conditions of James Doe’s education.” Am.

Compl. ¶ 53. That is admittedly more a statement of conclusion rather than a

statement of fact. But there are factual allegations that support it. First, Velarde

occupied a position of power in relation to James: Velarde was the classroom assistant

and James was the student. Id. ¶¶ 17-18, 20. Sure, that is not the traditional teacher-

student relationship. But viewing the allegations in James’ favor, it is reasonable to

conclude that the power imbalance was even greater than the traditional teacher-

student relationship, because James suffered from physical and mental disabilities,

id. ¶¶ 17-18, and Velarde was authorized to interact with James in ways that are

otherwise considered to be quite invasive, id. ¶¶ 20-21. Those facts alone are enough

to put the Velarde-James relationship at least on the same footing as a traditional

teacher-student relationship so that sexual abuse (here, touching James’ penis

multiple times) by the classroom assistant qualifies as an alteration of James’

educational opportunities.

But the Plaintiffs cannot clear the other hurdle to imposing Title IX liability

on the Board. Remember that there is no vicarious liability under Title IX, so the

Plaintiffs must adequately allege that a school official with authority to take

corrective measures on the Board’s behalf had actual notice of and was deliberately

indifferent to Velarde’s alleged sexual abuse. See Gebser, 524 U.S. at 290. “School

administrators have actual knowledge only of the incidents that they witness or that

have been reported to them.” Doe v. Galster, 768 F.3d 611, 618 (7th Cir. 2014). Here,

the Plaintiffs fail to adequately plead who possessed the requisite knowledge. They

argue—unconvincingly—that it is enough to say that “the necessary school officials

had actual notice of the improper touching on March 19, 2018, and possibly knew

about an even earlier improper touching to James Doe’s penis.” R. 43, Pls.’ Resp. Br.

at 8. But aside from Velarde himself, the only other person alleged to have observed

the misconduct, or known anything about it, is Reynolds. See Gebser, 524 U.S. at 291

(“Where a school district’s liability rests on actual notice principles, … the knowledge

of the wrongdoer himself is not pertinent to the analysis.”). But there is nothing in

the Amended Complaint to suggest that Reynolds was a school official with the

authority to take corrective measures. Nor do Plaintiffs set forth facts suggesting that

any school official with the requisite authority knew about the alleged abuse. So the

Amended Complaint falls short of stating a claim against the School District under

Title IX. To be sure, at the pleading stage a plaintiff need not necessarily specify the

identity of the school official who had knowledge of the abuse. But nothing in the

Amended Complaint points to anyone—whether by job title or otherwise—who fits

the bill.

What’s more, even if the allegations about the Board had sufficiently

implicated a school official with the authority to take corrective steps, the Title IX

claim would still fail because there are no facts to suggest that a school official knew

of Velarde’s alleged abuse at the time it was happening. See St. Francis Sch. Dist.,

694 F.3d at 872-73. Nor are there any facts to suggest that Velarde had some known

history of sexual misconduct that would impute some sort of knowledge on the Board’s

behalf. Cf. Hansen v. Bd. of Trs. of Hamilton Southeastern Sch. Corp., 551 F.3d 599,

605-606 (7th Cir. 2008) (explaining in dicta that even if a school district did not know

a teacher was harassing a particular plaintiff, it might still be found to have “actual

knowledge” if the teacher was a known “serial harasser”). Where a school official

learns of sexual harassment against a plaintiff only after the fact, they do not have

“actual” notice or knowledge within the meaning of Title IX. See, e.g., St. Francis Sch.

Dist., 694 F.3d at 872-73 (school officials who heard only suspicions of sexual

misconduct, and then only learned about teacher’s sexual abuse of victim after-the-

fact, did not have “actual knowledge” under Title IX); Trentadue v. Redmon, 619 F.3d

648, 653 (7th Cir. 2010) (no actionable knowledge where school officials only found

out about instructor’s sexual abuse of student several weeks later). Here, even taking

the Plaintiffs’ allegations as true, the only plausible characterization of the Amended

Complaint is that school officials found out about the harassment after it happened.

See Am. Compl. ¶ 24 (“[O]n May 22, 2018, the Ray Graham Training Center High

School administration notified the Chicago Police Department regarding allegations

of sexual abuse to James Doe.”).

Nevertheless, the Plaintiffs argue—solely on the basis that the pleadings

should be viewed in their favor at the motion-to-dismiss stage—that the Court should

simply fill in the gap and infer that the Board had “actual knowledge” between “the

date in which Reynolds observed Velarde improperly touch[ing] James Doe’s penis”

and “the date that police were notified … .” Pls.’ Resp. Br. at 9. This takes notice

pleading too far. That is, the complete absence of factual allegations cannot form the

basis of a reasonable inference in the Plaintiffs’ favor. Take, for example, Swanson v.

Baker & McKenzie, LLP, 527 Fed. App’x 572 (7th Cir. 2013) (non-precedential

disposition). Swanson alleged that (1) she listed her former employment with the

defendant law firm on job applications; (2) the law firm’s human resources manager

could not find Swanson in their system and could “neither confirm nor deny her

employment there”; and (3) prospective employers kept rejecting Swanson’s job

applications. Swanson, 527 Fed. App’x at 573-74. Based on those allegations,

Swanson implored the district court to infer that the defendant “must have told

prospective employers something adverse”—if defendant told “prospective

employer[s] that it could neither confirm nor deny her employment there,” she

argued, “then the prospective employer[s] would conclude that she was lying and

would refuse to hire her.” Id. at 574. But the Seventh Circuit affirmed the district

court’s dismissal of Swanson’s retaliation claim, holding that “in the absence of any

additional facts that would support that final inferential leap, this is the type of

speculation that [Twombly and Iqbal] identify as insufficient to pass muster under

Rule 12(b)(6).” Id. (cleaned up). That is the same sort of inferential leap that the

Plaintiffs are asking the Court to take in this case.

The outcome might have been different if, say, the Plaintiffs alleged that they

left a voice-mail for the school principal to report sexual harassment by Velarde. In

that case, even if the Plaintiffs did not allege a direct conversation with the principal

(or even that the principal heard the message), it would still be reasonable to infer

that a school principal listens to voice-mails and thus obtained actual knowledge of

the misconduct. But the Plaintiffs allege nothing of the sort. So, absent any well-pled

allegations of actual knowledge and deliberate indifference, the Plaintiffs’ Title IX

claim must be dismissed. But given that the Plaintiffs have amended their complaint

only once, this dismissal is without prejudice. If the Plaintiffs think that they can fix

this deficiency (relying on a reasonable basis in fact), then they must file the second

amended complaint by April 27, 2020. Otherwise, the dismissal will convert to a

dismissal with prejudice as to this claim.

B. Rehabilitation Act and ADA (Counts 2 and 3)

Moving on, the Plaintiffs also bring two claims against the Board under § 504

of the Rehabilitation Act, 29 U.S.C. § 794(a), and Title II of the ADA, 42 U.S.C.

§ 12132. Both statutes generally prohibit discrimination in public programs on the

basis of disability. H.P. by & through W.P. v. Naperville Cmty. Unit Sch. Dist. #203,

910 F.3d 957, 960 (7th Cir. 2018). Specifically, Title II of the ADA provides that “no

qualified individual with a disability shall, by reason of such disability, be excluded

from participation in or be denied the benefits of the services, programs, or activities

of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C.

§ 12132. Section 504 of the Rehabilitation Act likewise bans disability discrimination

by public entities, but does not allow mixed-motive claims (whereas the ADA does).

See 29 U.S.C. § 794(a) (banning discrimination “solely by reason of” the person’s

disability) (emphasis added); Reed v. Columbia St. Mary’s Hosp., 915 F.3d 473, 484

(7th Cir. 2019). That said, because “Title II of the ADA was modeled after § 504 of the

Rehabilitation Act[,]” and because “the elements of claims under the two provisions

are nearly identical,” the Seventh Circuit has held “that the standards applicable to

one act are applicable to the other.” Washington v. Ind. High Sch. Athletic Ass’n, Inc.,

181 F.3d 840, 845 n.6 (7th Cir. 1999).

The Board takes it one step further by arguing that the Plaintiffs’ burden

under Title II of the ADA and § 504 of the Rehabilitation Act is the same as that

under Title IX. Bd.’s Br. at 10-11. In other words, as with the Plaintiffs’ Title IX claim,

the Board believes Counts 2 and 3 should be dismissed because the Plaintiffs do “not

allege that a school official with authority to institute corrective measures on the

Board’s behalf had actual notice of and was deliberately indifferent to Velarde’s

alleged inappropriate touching.” Id. at 10. It is true that the text of all three statutes

is very similar (except that Title IX prohibits discrimination on the basis of sex rather

than disability). Compare 42 U.S.C. § 12132, with 29 U.S.C. § 794(a) (“No otherwise

qualified individual with a disability … shall, solely by reason of her or his disability,

be excluded from the participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal financial assistance

… .”), and 20 U.S.C. § 1681 (“No person in the United States shall, on the basis of sex,

be excluded from participation in, be denied the benefits of, or be subjected to

discrimination under any education program or activity receiving Federal financial

assistance … .”). And because the Plaintiffs fail to challenge the Board on this point,

they forfeit the argument. See Pls.’ Resp. Br. at 9-10. In fact, the Plaintiffs implicitly

concede that the same standard applies to all three statutes when they explain that

under § 504 or Title II, “a plaintiff must show that: (1) the plaintiff is an individual

with a disability, (2) he or she was harassed based on that disability, (3) the

harassment was sufficiently severe or pervasive that it altered the condition of his or

her education and created an abusive educational environment, (4) the defendant

knew about the harassment, and (5) the defendant was deliberately indifferent to the

harassment.” Id. at 9 (emphasis added). These elements are nearly identical to those

applicable in Title IX claims. See supra Section III(A).

But even though the Plaintiffs forfeited the argument, it is worth noting—for

the sake of completeness—that neither the Supreme Court nor the Seventh Circuit

has decided whether Title II of the ADA and § 504 of the Rehabilitation Act permit

vicarious liability, and other circuits are split. See Ravenna v. Vill. of Skokie, 388 F.

Supp. 3d 999, 1004-1006 (N.D. Ill. 2019). Compare, e.g., Duvall v. Cty. of Kitsap, 260

F.3d 1124, 1141 (9th Cir. 2001) (“When a plaintiff brings a direct suit under either

the Rehabilitation Act or Title II of the ADA against a municipality … the public

entity is liable for the vicarious acts of its employees.”), with Liese v. Indian River

Cty. Hosp. Dist., 701 F.3d 334, 348 (11th Cir. 2012) (holding that Supreme Court’s

rejection of respondeat superior and constructive notice principles for Title IX claims

is also the correct standard for § 504). But the Seventh Circuit provided some

guidance when it acknowledged that “[b]ecause the program-specific language

of Title IX is identical to that of § 504 … the Supreme Court has consistently relied

on case law developed under Title IX in interpreting § 504.” Foss v. City of Chicago,

817 F.2d 34, 36 n.1 (7th Cir. 1987) (cleaned up) (collecting cases). See also Waldrop v.

Southern Co. Servs., 24 F.3d 152, 157 n.5 (11th Cir. 1994) (“Section 504 was passed

in 1973, just a year after Title IX. The statutes are virtually identical … with the

principal exception being the class protected. As a result, the [Supreme] Court

repeatedly analogized the two statutes.”). Moreover, the Seventh Circuit has held

that “when a statute fails to provide individual or personal liability, vicarious[]

liability ‘based on agency principles’ is not available.” Ravenna, 388 F. Supp. 3d at

1005 (quoting Smith v. Metro. Sch. Dist. Perry Twp., 128 F.3d 1014, 1022-28 (7th Cir.

1997)). Like Title IX, neither Title II of the ADA nor § 504 of the Rehabilitation Act

permits individual liability. See Stanek v. St. Charles Cmty. Unit Sch. Dist. No. 303,

783 F.3d 634, 644 (7th Cir. 2015). On this basis, the Board is likely correct that the

requirements for claims under Title IX also apply to claims under Title II of the ADA

and § 504 of the Rehabilitation Act. And given that the Plaintiffs’ allegations under

Counts 2 and 3 suffer from the same factual gap as their allegations under Title IX

on actual knowledge and deliberate indifference—compare Am. Compl. ¶¶ 64-67, and

id. ¶¶ 76-79, with id. ¶¶ 51-54—the Plaintiffs’ claims under Title II of the ADA and

§ 504 of the Rehabilitation Act are also dismissed (with the same deadline for a

Second Amended Complaint). See supra Section III(A).

C. Section 1983

The Plaintiffs also bring constitutional-rights claims against the individual

defendants under 42 U.S.C. § 1983. Section 1983 serves as a procedural vehicle for

lawsuits “vindicating federal rights elsewhere conferred.” Graham v. Connor, 490

U.S. 386, 393-94 (1989). To state a § 1983 claim, a plaintiff must show that they were

“deprived of a right secured by the Constitution or federal law, by a person acting

under color of law.” Thurman v. Vill. of Homewood, 446 F.3d 682, 687 (7th Cir. 2006).

Relying on § 1983, the Plaintiffs allege that Velarde violated James Doe’s rights

under the Fourth Amendment (Count 5), as well as under the Equal Protection

Clause (Count 4) and the Due Process Clause (Count 6) of the Fourteenth

Amendment. Am. Compl. ¶¶ 82-103. The Plaintiffs also allege that Reynolds violated

James Doe’s constitutional rights when he failed to intervene to prevent Velarde from

violating James Doe’s Fourth and Fourteenth Amendment rights (Count 10). Id.

¶¶ 120-126. The Court will discuss each claim in turn.

1. Equal Protection (Count 4)

The Equal Protection Clause of the Fourteenth Amendment prohibits state and

local governments from discriminating on the basis of certain protected classifications

and also bars governments from treating a person irrationally as a so-called “class of

one.” Reget v. City of La Crosse, 595 F.3d 691, 695 (7th Cir. 2010). For an equal-

protection claim based on class membership to survive a motion to dismiss, a plaintiff

must sufficiently allege that they were treated differently by the government based

on membership in a protected class, and that the defendant acted with discriminatory

intent. See Greer v. Amesqua, 212 F.3d 358, 370 (7th Cir. 2000). The other form of

equal-protection claim is different: a class-of-one claim requires the plaintiff to allege

that (1) a state actor intentionally treated them “differently than others similarly

situated, and (2) there is no rational basis for the difference in treatment.” Reget, 595

F.3d at 695. Here, the Plaintiffs bring an equal-protection claim against Velarde

under both theories. See Am. Compl. ¶¶ 82-89; Pls.’ Resp. Br. at 17-18.

Under the class-membership theory, the Plaintiffs allege that Velarde

discriminated against James Doe based on his sex or his disability,5 or both. Am.

5The Supreme Court has held that disability is not a “suspect classification” under the

Equal Protection Clause, so a plaintiff alleging an equal-protection violation on the basis of

their disability also has to show that the state actor’s discrimination was not rationally

related to a legitimate state interest. See Bd. of Trs. of Univ. of Alabama v. Garrett, 531 U.S.

356, 366-68 (2001); United States v. Harris, 197 F.3d 870, 874-75 (7th Cir. 1999). See also

City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440-41 (1985) (unlike disability,

sex-based discrimination receives a heightened standard of scrutiny because “the sex

characteristic frequently bears no relation to ability to perform or contribute to society.”)

(cleaned up); Discovery House, Inc. v. Consol. City of Indianapolis, 319 F.3d 277, 282 (7th Cir.

2003) (where corporation alleged that city violated its equal protection rights by determining

that its proposed drug-treatment facility was not permitted in that area zone, the rational

relationship test applied because drug addicts are not a suspect class). Here, for clarity and

convenience’s sake, this Opinion will not address this requirement separately—instead,

Compl. ¶ 84. In the next paragraph, the Plaintiffs allege that Velarde “victimized

James Doe based on his membership in a certain class of individuals.” Am. Compl.

¶ 85. Those two paragraphs make it quite plain that the Plaintiffs are alleging sex

and disability discrimination, so Velarde’s argument to the contrary, R. 25, Velarde

Br. at 4, is rejected.

Velarde also contends that the allegations are insufficient to plead that his

conduct was motivated by James Doe’s sex or disability. Velarde Br. at 4. But that is

wrong. It is important to remember that, at this early stage of the case, the Plaintiffs

need not plead more facts than necessary to give Velarde “fair notice of what the claim

is and the grounds upon which it rests.” Huri v. Office of the Chief Judge of the Cir.

Ct. of Cook Cty., 804 F.3d 826, 832 (7th Cir. 2015). In the analogous setting of

employment-discrimination cases, the Seventh Circuit has emphasized that there is

no heightened pleading standard in those types of cases, and no need to plead the

elements of a prima facie case. Carlson v. CSX Transp., Inc., 758 F.3d 819, 827 (7th

Cir. 2014). Fair notice of the claim is all that is required. Id.

Here, the Plaintiffs adequately allege that Velarde abused James Doe based

on his sex, his disability, or both. See, e.g., Am. Compl. ¶ 84 (“Defendant Velarde

abused, harassed, and otherwise discriminated against James Doe based on sex

and/or disability.”). For one, the fact that Velarde allegedly improperly touched James

Doe’s genitals on multiple occasions inherently implicates James Doe’s sex, at least

at the pleading stage. See id. ¶¶ 22, 25. See also Bohen v. City of East Chi., Ind., 799

because the class-of-one equal-protection claim must also pass a rational-relationship test,

the Court’s analysis on that point applies to the Plaintiffs’ disability-based claim too.

F.2d 1180, 1185 (7th Cir. 1986) (under Equal Protection Clause, discrimination based

on sex includes sexual harassment). Likewise, the Amended Complaint plausibly

connects Velarde’s misconduct to James Doe’s membership in a class of disabled

students by alleging that Velarde sexually abused Doe while working as a Special

Education Classroom Assistant and having physical access to James Doe in the

shower. See Am. Compl. ¶¶ 20-22, 84-85. Because Velarde could not have engaged in

the alleged misconduct had it not been for James Doe’s disability status, the

Plaintiffs’ claim that Velarde treated James Doe differently because of that disability

is plausible on its face.6 The equal-protection claim is adequately described to fulfill

the purpose of pleading: to put the defense on notice of what the claim is.

Velarde further argues that the equal-protection claim should be dismissed

because the Plaintiffs failed to “sufficiently allege that James Doe was intentionally

treated differently from others similarly situated and that there is no rational basis

for the difference in treatment.” Velarde Br. at 3 (quoting Geinosky v. City of Chicago,

675 F.3d 743, 747 (7th Cir. 2012)). Again, Velarde is demanding too much at the

pleading stage: the Plaintiffs are not required to plead specific comparisons to

similarly situated students. The Seventh Circuit has “repeatedly confirmed that

6Velarde’s argument that the “Plaintiffs admit as much when they state that ‘the

misconduct described … is not rooted in any form of discrimination including sex or

disability[,]’” Velarde Br. at 4 (quoting Am. Compl. ¶ 94), lacks merit. Velarde omits that the

Plaintiffs’ allegation applied to “the misconduct described in this Count”—that is, the Fourth

Amendment claim, not the equal protection claim. See Am. Compl. ¶ 94 (emphasis added).

Even if the Fourth Amendment claim relies “on the same set of facts” as the equal protection

claim, Velarde Br. at 4, the Plaintiffs referred to the “misconduct” as the “unreasonable

search and seizure,” and were simply clarifying their legal theory under the Fourth

Amendment.

plaintiffs alleging class-of-one equal protection claims do not need to identify specific

examples of similarly situated persons in their complaints.” Miller v. City of Monona,

784 F.3d 1113, 1120 (7th Cir. 2015) (cleaned up). And the same is true for class-

membership claims, especially where the complaint plausibly alleges discriminatory

intent, as it does here. See, e.g., Taylor v. Nunez, 2019 WL 5393996, at *4 (N.D. Ill.

Oct. 22, 2019); Myers v. Joliet Twp. High Sch. Dist. No. 204, 2013 WL 3874057, at *4

(N.D. Ill. July 26, 2013). Nothing more is needed right now.

It is worth nothing one final point on the equal-protection claim, in particular

on the class-of-one theory. Although not explicitly developed by Velarde, he tiptoes

around an argument that his conduct was benign—that “[a]ll the Complaint alleges

… is that in the course of cleaning James Doe, pursuant to his responsibilities under

the IEP, he touched James Doe’s penis and that he had done so once in the past.”

Velarde Br. at 4.7 The idea seems to be that government conduct in class-of-one claims

carry a presumption of rationality to ensure that not every tort committed by a state

actor mutates into a federal constitutional injury. See Geinosky, 675 F.3d at 747;

Walker v. Samuels, 543 Fed. App’x 610, 611 (7th Cir. 2013) (non-precedential

disposition). So “even at the pleadings stage, all it takes to defeat a class-of-one claim

is a conceivable rational basis for the difference in treatment.” Miller, 784 F.3d at

1121 (cleaned up). But even with the applicable presumption of rationality, at this

7Velarde repeats this characterization throughout his opening brief. See, e.g., Velarde

Br. at 7 (describing the allegations as Velarde simply “touch[ing] James Doe’s penis in the

course of cleaning him[.]”). For the reasons discussed above, supra Section III(C)(1), the

alleged facts do not permit such an inference in Velarde’s favor (for any of the Plaintiffs’

claims) at this stage of the litigation.

stage the Court must still draw any plausible inferences in the Plaintiffs’ favor, not

Velarde’s. See Flying J Inc. v. City of New Haven, 549 F.3d 538, 546 (7th Cir. 2008)

(“The solution is to take as true all of the complaint’s allegations and reasonable

inferences that follow, and then apply the resulting facts in light of the deferential

rational basis standard.” (cleaned up)). So, taking the Plaintiffs’ allegations as true,

the Amended Complaint does not reveal any conceivable rational basis for why

Velarde would need to “improperly” touch James Doe’s penis multiple times in the

shower—and on more than one occasion—without James Doe’s consent. See, e.g., Am.

Compl. ¶¶ 22, 25, 117. And on that note, the Plaintiffs’ allegation that Velarde

touched James Doe “improperly” is not impermissibly conclusory. It is true that, in a

pleading, adverbs often obscure the concrete facts that are needed to understand the

claim. But context matters. And in the context of the sexual misconduct alleged here,

nothing more is needed at the pleading stage to distinguish improper touching from

providing legitimate physical assistance in the shower.

In sum, both forms of the equal-protection claim are adequately stated.

Velarde’s motion to dismiss Count 4 must be denied.

2. Unreasonable Search and Seizure (Count 5)

The Plaintiffs also assert a Fourth Amendment claim against Velarde for

unreasonable search and seizure. Am. Compl. ¶¶ 90-96. The Fourth Amendment,

applicable to the states and local governments through the Fourteenth Amendment,

“guarantees the privacy, dignity, and security of persons against certain

arbitrary and invasive” conduct by state actors. See Skinner v. Ry. Labor Execs.’

Ass’n, 489 U.S. 602, 613-14 (1989). On this claim, Velarde argues—and he is right—

that the allegations of what he did to James Doe do not amount to a search or a

seizure. Velarde Br. at 5-6.

First, no facts suggest that James Doe was “searched.” An unlawful search

“occurs when an expectation of privacy that society is prepared to consider reasonable

is infringed” by some sort of examination to find something. See United States v.

Jacobsen, 466 U.S. 109, 113 (1984). “When the Fourth Amendment was ratified, as

now, to ‘search’ meant to ‘look over or through for the purpose of finding something;

to explore; to examine by inspection; as, to search the house for a book; to search the

wood for a thief.’” Doe v. Heck, 327 F.3d 492, 509-10 (7th Cir. 2003) (quoting Kyllo v.

United States, 533 U.S. 27, 33 n.1 (2001)). Here, the Plaintiffs’ allege that Velarde

“improperly touched” James Doe, but that allegation does not permit an inference

that Velarde was “searching” James Doe for something within the meaning of the

Fourth Amendment.

The Plaintiffs’ seizure claim totters on an even weaker foundation. As a

threshold matter, “a Fourth Amendment seizure does not occur whenever there is a

governmentally caused termination of an individual’s freedom of movement … but

only when there is a governmental termination of freedom of movement through

means intentionally applied.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 844 (1998)

(cleaned up) (emphasis in original). Here, there are no facts to suggest that Velarde’s

actions were motivated by an intent to restrict James Doe’s freedom of movement—

the allegation that Velarde improperly touched James does not give rise to an

inference that Velarde intended to prevent James from moving. Moreover, a person

is “seized” within the meaning of the Fourth Amendment “only if, in view of all of the

circumstances surrounding the incident, a reasonable person [in their position] would

have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S.

544, 554 (1980). For encounters where someone is either in their own home or

restricted in some other way, the more relevant question is “whether a reasonable

person would feel free to decline the [defendant’s] requests or otherwise terminate

the encounter.” Florida v. Bostick, 501 U.S. 429, 436 (1991); see also White v. City of

Markham, 310 F.3d 989, 994 (7th Cir. 2002). In this case, the “reasonable person”

would arguably need to have similar disabilities to be in James Doe’s “position.” See,

e.g., Heck, 327 F.3d at 510 (determination that “no reasonable child would have

believed he was free to leave the nursery” factored in age as part of the “totality of

circumstances”). But even so, the fact of disability does not, in and of itself,

automatically mean the person’s movement is restrained. Here, the Plaintiffs have

not adequately alleged that Velarde acted in such a way that a reasonable, disabled

student in James Doe’s position would not have felt free to leave the bathroom or

terminate the shower. Nor, for that matter, are there any allegations that James

Doe’s freedom of movement was actually restrained.8 See Mendenhall, 446 U.S. at

553 (“[A] person is ‘seized’ only when, by means of physical force or a show of

8The Court acknowledges that whether Velarde did restrict James Doe’s freedom of

movement would be a closer call if James Doe’s disability already severely limited his ability

to move on his own. But that limitation is not pled, and in any event, there is no need to reach

that question given the absence of any allegations that could make the Fourth Amendment

claim plausible on its face.

authority, his freedom of movement is restrained.”). For all these reasons, the

Plaintiffs’ Fourth Amendment claim against Velarde is dismissed. In light of the early

stage of the case, the dismissal is without prejudice for now, but it does not seem that

this deficiency can be fixed with other factual allegations.

3. Substantive Due Process (Count 6)

Velarde also seeks to dismiss the Plaintiffs’ substantive due-process claim.

Velarde Br. at 7-8. In their Amended Complaint, the Plaintiffs allege that Velarde’s

sexual abuse of James Doe violated his right to bodily integrity as protected by the

substantive aspect of the Due Process Clause. Am. Compl. ¶¶ 98-99; T.E. v. Grindle,

599 F.3d 583, 589 (7th Cir. 2010) (substantive due process violations include

infringing on students’ protected liberty interest in bodily integrity). There are two

types of substantive due process violations: “the first occurs when the state actor’s

conduct is such that it shocks the conscience,” and the “second occurs when the state

actor violates an identified liberty or property interest protected by the Due Process

Clause.” Grindle, 599 F.3d at 589 (cleaned up). Here, Velarde challenges both forms

of the Plaintiffs’ substantive due process claim. Velarde Br. at 7. As explained next,

however, the allegations are sufficient.

a. Substantive Due Process and Equal Protection

Before deciding whether the Plaintiffs adequately alleged a substantive due

process claim, there is a threshold question to take up: considering that the Supreme

Court has warned against invoking the substantive component of the Due Process

Clause if a more narrow provision applies, can the Plaintiffs proceed on a substantive-

due-process theory at all, given that their more specific Equal Protection claim

survives? Specifically, the Supreme Court has held that “[w]here a particular

Amendment provides an explicit textual source of constitutional protection against a

particular sort of government behavior, that Amendment, not the more generalized

notion of substantive due process, must be the guide for analyzing these claims.”

Albright v. Oliver, 510 U.S. 266, 273 (1994). As important as that principle is,

however, it is not automatically applied: courts pay close attention to the precise

description of the right at stake. See Koutnik v. Brown, 456 F.3d 777, 781 n.2 (7th

Cir. 2006) (whether another textual source covers a substantive due process claim

depends on the protections invoked by the plaintiff).

For example, in Wilson v. Cook County, the Seventh Circuit determined that,

although “sexual harassment claims brought under § 1983 are traditionally analyzed

in the context of the Equal Protection Clause[,] … the substantive component of the

Due Process Clause may also come into play when a plaintiff alleges that her bodily

integrity was violated by a state actor.” 742 F.3d 775, 780-81 (7th Cir. 2014) (emphasis

added). Wilson demonstrates that, in certain circumstances, allegations can give rise

to equal-protection and substantive due process claims that are both viable.

Indeed, the Seventh Circuit’s decision in Hughes v. Farris, 809 F.3d 330 (7th

Cir. 2015) exemplifies the distinction between the two types of claims. In Hughes, the

Seventh Circuit held that a civilly committed detainee’s allegations of cruel and

inhumane treatment stated claims under both the Due Process Clause and the Equal

Protection Clause. 809 F.3d at 334. Specifically, the detainee alleged that an

employee at the treatment facility abused him due to his sexual orientation by

threatening him with violence and berating him with homophobic epithets. Id. at 332.

Hughes framed the due-process claim as implicating a right to safety and protection

from cruel and unusual punishment (which includes threats of grave violence and

verbal abuse). Id. at 334. In contrast, Hughes described the equal-protection claim as

implicating a right to be free from discrimination on the basis of sexual orientation.

Id. With the two different types of rights at stake, the due-process claim granted a

right to safety that did not hinge on membership in a protected class, thus

differentiating it from the equal-protection claim. See Koutnik, 456 F.3d at 781 n.2.

Just so here. James Doe’s allegations that Velarde sexually abused him

implicate two independent rights: (1) the right to be free from unequal treatment

under the Equal Protection Clause; and (2) the right to bodily integrity and personal

security under the Due Process Clause, regardless of the defendant’s motive. Put

another way, the sexual assault of a student—regardless of the defendant’s

motivations—could constitute a substantive due process violation on its own, because

the Due Process Clause’s guarantees of bodily integrity are triggered regardless of

how others are treated. See Wudtke v. Davel, 128 F.3d 1057, 1063-64 (7th Cir. 1997)

(holding that sexual assault by a state actor can violate the fundamental right to

bodily integrity under the Due Process Clause); see also id. (holding that substantive

due process claim was adequately stated based on allegations of “serious physical

assault,” such as the victim being touched, kissed, and forced to perform fellatio

without consent).9 Like in Wudtke, because the Plaintiffs in this case “alleged an

extreme and outrageous violation of [James Doe’s] person committed by a state actor,”

the alleged sexual abuse can be characterized as both sex discrimination under the

Equal Protection Clause and as a violation of substantive due process. See id. at 1063.

The availability of the equal-protection claim does not preclude the Plaintiffs from

also bringing the substantive due process claim.

b. Substantive Due Process

Moving on to the adequacy of the substantive due process allegations, in

determining whether a plaintiff has stated a claim for substantive due process, the

Court’s “first duty is to provide a careful description of the liberty interest that Mr.

Doe seeks to have protected.” Doe v. City of Lafayette, Ind., 377 F.3d 757, 768 (7th

Cir. 2004) (cleaned up). Next, the Court must determine whether that interest is

“fundamental”—that is, whether it is so deeply rooted and sacrosanct that no amount

of process would justify its deprivation. Christensen v. Cty. of Boone, Ill., 483 F.3d

454, 462 (7th Cir. 2007). If so, the Court must ask “whether the government has

interfered directly and substantially with the plaintiffs’ exercise of that right.” Id.

(cleaned up). And “finally, if a fundamental right has been impaired, [the Court asks]

whether the governmental action can find reasonable justification in the service of a

9The Supreme Court also implicitly recognized that type of claim in United States v.

Lanier, when it explained that an earlier case—DeShaney v. Winnebago Cty. Dep’t of Soc.

Servs., 489 U.S. 189 (1989)—did not hold that “there is no constitutional right to be free from

assault committed by state officials themselves outside of a custodial setting.” Lanier, 520

U.S. 259, 272 n.7 (1997). See Wudtke, 128 F.3d at 1063; see also Stoneking v. Bradford Area

Sch. Dist., 882 F.2d 720, 727 (3d Cir. 1989) (“Reasonable officials would have understood the

‘contours’ of a student’s right to bodily integrity … to encompass [the] right to be free from

sexual assaults by his or her teachers.”).

legitimate governmental objective, or if instead it more properly is characterized as

arbitrary, or conscience shocking, in a constitutional sense.”10 Id. (cleaned up).

On the first step, the Court’s “careful description of the asserted right must be

… specific and concrete, one that avoids sweeping abstractions and generalities.” Doe

v. City of Lafayette, 377 F.3d at 769 (cleaned up). Here, given the factual constraints

set by the Amended Complaint, this task is not too difficult: James Doe, as a public

school student, asserts a right to be free from sexual abuse by school employees. See,

e.g., R. 19, Am. Compl. ¶¶ 1, 98-99. Likewise, the second requirement is also satisfied:

courts have recognized that students have a fundamental right to bodily integrity,

see, e.g., Ingraham v. Wright, 430 U.S. 651, 672 (1977), and that sexual abuse by a

state actor can constitute a violation of that right, see, e.g., Wudtke, 128 F.3d at 1063-

64. On the facts alleged here, Velarde “interfered directly and substantially” with

James Doe’s right to bodily integrity. See Christensen, 483 F.3d at 462. And, needless

to say, there is no legitimate governmental objective that could reasonably be served

by the repeated, non-consensual, improper touching of a student’s genitals. See

Wudtke, 128 F.3d at 1062-63 (plaintiff’s sexual assault claims invoked substantive

10As described above, supra Section III(C), the Supreme Court has defined two

categories of substantive due process claims: one protecting an individual’s fundamental

liberty interests, and another protecting against the exercise of governmental power that

shocks the conscience. United States v. Salerno, 481 U.S. 739, 756 (1987). But despite

conscious-shocking behavior constituting a separate type of substantive due process claims,

courts (including the Supreme Court) have also incorporated a “conscience-shocking” test into

the first type—the analysis of whether a fundamental liberty interest has been impaired. See,

e.g., Lewis, 523 U.S. at 846-50; Christensen, 483 F.3d at 461-62. For purposes of this Opinion,

there is no need to try to unblur the lines between the two types of claims, because the

Plaintiffs’ allegations meet the stricter standard—that is, the alleged sexual abuse is

conscious-shocking.

due process because “[n]o amount of predeprivation process would have made

[defendant’s] conduct … palatable.”); Lewis, 523 U.S. at 849 (“[C]onduct intended to

injure in some way unjustifiable by any government interest is the sort of official

action most likely to rise to the conscience-shocking level[.]”).

Likewise, the Plaintiffs have also plausibly alleged that Velarde’s conduct

shocks the conscience. As discussed above, supra Section III(A), Velarde’s

relationship to James Doe is comparable to that of a teacher and their student, and

courts have recognized that a teacher’s sexual abuse of a student “‘is reprehensible

and undermines the basic purposes of the educational system[,]’” Doe I v. Bd. of Educ.

of City of Chi., 364 F. Supp. 3d at 861 (quoting Gebser, 524 U.S. at 292). But more

than that, the alleged facts support the inference that, because Velarde was entrusted

with the responsibility to care for James Doe’s needs as a disabled student, Velarde’s

alleged misconduct was especially conscience-shocking. See Lewis, 523 U.S. at 846

(“[T]he Due Process Clause was intended to prevent government officials from

abusing their power[,]” and “the cognizable level of executive abuse of power [i]s that

which shocks the conscience.” (cleaned up)).

Because the Plaintiffs have adequately alleged a Fourteenth Amendment

substantive due process claim, Velarde’s motion to dismiss Count 6 is denied.

4. Failure to Intervene (Count 10)

The Plaintiffs’ last claim under § 1983 is a failure-to-intervene claim against

Defendant Reynolds who, like Velarde, also worked as a Special Education Classroom

Assistant at Ray Graham. Am. Compl. ¶¶ 12, 120-26. As the nature of this claim

implies, the Plaintiffs do not allege that Reynolds himself improperly touched James

Doe; instead, they allege that Reynolds’ failure to prevent Velarde from doing so

caused James to suffer harm. Id. ¶¶ 121-25. “The Seventh Circuit has consistently

recognized that a state actor’s failure to intervene in the violation of another’s

constitutional rights may render him liable” under § 1983. Patrick v. City of Chicago,

213 F. Supp. 3d 1033, 1053 (N.D. Ill. 2016) (citing Yang v. Hardin, 37 F.3d 282, 285

(7th Cir. 1994), and Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir. 1972)).

Here, Reynolds’ only challenge on the failure-to-intervene claim is that the

Plaintiffs “failed to plead a constitutional violation committed by Velarde.” R. 37,

Reynolds Br. at 3. See Rosado v. Gonzalez, 832 F.3d 714, 718 (7th Cir. 2016) (“In order

for there to be a failure to intervene … there must exist an underlying constitutional

violation.” (cleaned up)). But because the Plaintiffs have adequately alleged

constitutional violations by Velarde under the Equal Protection Clause (Count 4) and

the Due Process Clause (Count 6), see supra Sections III(C)(1) and (C)(3), Reynolds’

motion to dismiss must fail.

D. State-Law Claims

With the federal claims decided, next up are the Plaintiffs’ state-law claims.

As in all things legal, jurisdiction comes first. In particular, because all of the federal

claims against the Board have been dismissed (though without prejudice for now),

the Court must consider whether to relinquish supplemental jurisdiction over the

state-law claims against the Board. Initially, there is no question that, under 28

U.S.C. § 1367(a), the Court has supplemental jurisdiction over the state-law claims

(including those advanced against the Board) because those claims are based on the

same factual allegations as the federal claims. The synchronism of facts makes the

state claims “so related” to the federal claims “that they form part of the same case

or controversy … .” 28 U.S.C. § 1367(a). That said, federal district courts usually

relinquish supplemental jurisdiction over state claims “whenever all federal claims

have been dismissed prior to trial[,]” Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th

Cir. 1999). This presumption of relinquishment is written into 28 U.S.C. § 1367(c)(3),

which gives district courts the discretion to “decline to exercise supplemental

jurisdiction over a claim … if … the district court has dismissed all claims over which

it has original jurisdiction[.]” (emphasis added). See Hansen, 551 F.3d at 607.

In this case, however, not all federal claims over which the Court has original

jurisdiction have been dismissed. Specifically, the Court still has federal-question

jurisdiction over the § 1983 claims against Velarde and Reynolds. So the presumption

to relinquish supplemental jurisdiction has not been triggered.11 See Hansen, 551

F.3d at 607-608 (holding that retention of supplemental jurisdiction over state claims

against school district was proper where federal claims against co-defendant

remained). See also, e.g., Wilson v. Adams, 901 F.3d 816, 823 (7th Cir. 2018)

11Courts in other circuits have also interpreted § 1367 in this way. See, e.g.,

Ciambriello v. Cty. of Nassau, 292 F.3d 307, 324 (2d Cir. 2002) (reinstating state claims

against one defendant after reversing dismissal of § 1983 claims against other defendants);

Palmer v. Hosp. Auth. of Randolph Cty., 22 F.3d 1559, 1568-69 (11th Cir. 1994) (holding that,

where it is undisputed that jurisdiction exists for federal claim against one of the defendants,

supplemental jurisdiction over related state-law claims against other defendants is

appropriate); Wiggins v. Philip Morris, Inc., 853 F. Supp. 458, 468 (D.D.C. 1994) (retaining

jurisdiction over state-law claims against one defendant where Title VII federal claims

against co-defendant remained).

(affirming retention of supplemental jurisdiction over state-law negligence claim

even though all federal claims were dismissed on summary judgment); Doe-2 v.

McLean Cty. Unit Dist. No. 5 Bd. of Dirs., 593 F.3d 507, 513 (7th Cir. 2010)

(explaining that “[a]lthough a district court may relinquish supplemental jurisdiction

following the dismissal of all federal claims, it is not required to do so, unless the

federal claims are frivolous and so do not engage the jurisdiction of the federal

courts.”); Groce, 193 F.3d at 500 (“[O]ur case law makes clear that the district court

did not automatically lose [supplemental] jurisdiction once it granted summary

judgment on [plaintiff’s] ADA claim.”). What’s more, “[b]ecause the state and federal

claims arise from a common factual nucleus, judicial economy would best be served

by deciding all of the claims in this Court[,]” especially given that “the state claims

are unlikely to require significantly more factual development than already will be

required by the remaining federal claims.” Satkar Hosp. Inc. v. Cook Cty. Bd. of

Review, 819 F. Supp. 2d 727, 739 (N.D. Ill. 2011). For these reasons, the Court retains

supplemental jurisdiction over the state-law claims against the Board despite the

dismissal of the federal claims against it.

1. Negligence (Count 7) and

Willful and Wanton Conduct (Count 8)

With jurisdiction secure over the state claims against the Board, it is time to

assess them. The Plaintiffs allege that the Board acted willfully and wantonly (or at

the very least, negligently) by failing to prevent and report the improper touching;

failing to “reasonably direct, instruct, supervise, monitor, and train its agents … to

ensure timely and proper reporting of sexual abuse,” to “be aware of the care and

treatment needed for each student”; and failing “to adequately conduct reference

checks, background checks, or employment screenings of agents … .” See Am. Compl.

¶¶ 104-15. The Board argues that the negligence and willfulness claims are barred

by the Local Governmental and Governmental Tort Immunity Act, 745 ILCS 10/1-

101, et seq. Bd.’s Br. at 12-14. The Tort Immunity Act “governs whether and in what

situations local governmental units are immune from civil liability.” Reyes v. Bd. of

Educ. of City of Chi., 139 N.E.3d 123, 133 (Ill. App. Ct. 2019) (cleaned up). Here, the

Board relies primarily on Sections 2-103, 2-205, and 4-102 of the Act, which provide

immunity even for willful and wanton misconduct, and Section 3-108, which provides

immunity only for negligent acts. Bd.’s Br. at 12-14. See Doe I v. Bd. of Educ. of City

of Chi., 364 F. Supp. 3d at 863 (citing Vill. of Bloomingdale v. CDG Enters., Inc., 752

N.E.2d 1090, 1097-98 (Ill. 2001)); Reyes, 139 N.E.3d at 138-39. The Board also argues

that the willfulness claim should be dismissed because the Plaintiffs fail to allege

that the Board acted with deliberate indifference. Bd.’s Br. at 14-15.

a. Sections 2-205 and 2-103

Sections 2-205 and 2-103 of the Act immunize individual public employees and

local public entities from liability for any injuries “caused by adopting or failing to

adopt an enactment or by failing to enforce any law.” 745 ILCS 10/2-103 (immunizing

public entities); see id. at § 2-205 (immunizing public employees). The Board points

to various allegations in the Amended Complaint that fault the Board for failing to

follow and enforce its own policies.12 See R. 51, Bd. Reply Br. at 6-8; see, e.g., Am.

12The Board argues for the first time on reply that the Act bars Plaintiffs’ negligence

and willfulness claims because the Plaintiffs also allege violations of state law, not just Board

Compl. ¶ 43 (“Despite the foregoing policies regarding sexual discrimination and

student-staff boundaries, Defendant Board acted … in a manner that was

deliberately indifferent to the plainly obvious risk of sexual misconduct to its students

… .”). The Board then argues that its policies—like enactments or ordinances under

the Tort Immunity Act—have the force of law because they “are generally adopted as

part of business conduct at its regularly scheduled meetings,” Bd.’s Br. at 13, and so

for these reasons, Counts 7 and 8 should be dismissed. This argument fails for three

reasons.

First, on the current record, it is a mystery whether the Board’s policies fall

under the Act’s definition of “enactment” or “law.” The record as it stands does not

explain how the Board’s rules and policies are established. “Not everything passed by

the Board is a law under the Act.” Reyes, 139 N.E.3d at 135. In Reyes, the Illinois

Appellate Court was “not persuaded that ‘any law’ under section 2-205 include[d] the

three [Board] policies at issue” in the case. 139 N.E.3d at 134. Specifically, there was

no context for how the policies were put into effect, whether the guidelines were rules

or just suggestions, and whether the guidelines were established under 105 ILCS

5/34-19 and so “ha[d] the force of ordinances.” Id. at 135. The Board faces the same

rules and policies. See Bd. Reply Br. at 7-8 (“Plaintiffs alleged that the Board failed to follow

and enforce its own policies and other state laws and therefore Sections 2-103 and 2-[2]05 of

the Act must apply.”). But arguments raised for the first time on reply are forfeited, so the

Board’s arguments on this point will not be considered. See, e.g., Carroll v. Lynch, 698 F.3d

561, 564 n.2 (7th Cir. 2012). In any event, as discussed in the text, so long as the claims

adequately allege independent violations of common law, the fact that they also violate state

law would not trigger the Tort Immunity Act and require dismissal of the common-law

claims; it would just mean that the Plaintiffs cannot rely on state statutes to impose liability

on the Board.

factual gap here. Although the Board argues that the “policies and rules are generally

adopted as part of business conducted at its regularly scheduled meetings, [and so]

they have the force of ordinances,” Bd.’s Br. at 13, this allegation of course was not

pled in the Amended Complaint. Ultimately, the Board’s argument on this point is

more appropriate for a summary judgment motion.

Second, unless the factual record develops in a surprising way, the Board’s

argument that its policies fall within the Act’s definitions of “enactment” and

“regulation” is also not likely to prevail as a matter of law. As Reyes explained—and

as the Board effectively concedes—none of the relevant definitions in the Act include

the word “policy.” Reyes, 139 N.E.3d at 134. See, e.g., Bd.’s Br. at 13 (“Section 1-205

of the Act defines ‘law’ to include ‘enactments.’ Section 1-203 states that ‘[e]nactment

means a constitutional provision, statute, ordinance or regulation.’ Section 1-208

defines ‘regulation’ to include rules, regulations, orders and standards ‘having the

force of law.’”).13 Indeed, Reyes reasoned, dictionary definitions define “policy” as

something different from binding law: Black’s Law Dictionary defines policy as “the

general principles by which a government is guided in its management of public

affairs” and Merriam-Webster Online defines policy “as a definite course or method

of action selected to guide and determine present and future decisions[.]” Reyes, 139

13Because the Amended Complaint contains no allegations that the Board violated its

own rules, the Board cannot circumvent the problem that none of the definitions in the Act

contain the word “policy” (even if they might contain the word “rule”). See, e.g., Bd.’s Br. at

13 (“Section 1-208 defines ‘regulation’ to include rules, regulations, orders and standards

‘having the force of law.’ Because the Board’s policies and rules are generally adopted as part

of business conducted at its regularly scheduled meetings, they have ‘the force of ordinances.’”

(cleaned up)).

N.E.3d at 134 (cleaned up). In other words, “[t]hese definitions indicate that a policy

does not necessarily prescribe a mandatory course of conduct, unlike an ordinance or

regulation” under the Act. Id.

In any event, the Board’s argument under Sections 2-205 and 2-103 of the Act

also fails because the Plaintiffs assert general common-law duties, not just violations

of the Board’s policies. As discussed above, Sections 2-205 and 2-103 immunize public

employees and entities only from liability for injuries resulting from “adopting or

failing to adopt an enactment or by failing to enforce any law,” 745 ILCS 10/2-205

and 2-103, not from breaches of common-law duties. In other words, regardless of

what the Board’s policies say, the Plaintiffs adequately allege that the Board owed

James Doe certain common-law duties—such as a duty to “adequately conduct

reference checks, background checks, or employment screening of agents, servants,

and/or employees.” See Am. Compl. ¶ 107(e).

In short, Sections 2-205 and 2-103 of the Act do not bar the Plaintiffs’ claims

for negligence and willful and wanton misconduct.

b. Section 4-102

Next, the Board invokes Section 4-102 of the Act. That section protects public

entities from liability for any “failure to establish a police department or otherwise

provide police protection service or, if police protection service is provided, for failure

to provide adequate police protection or service, failure to prevent the commission of

crimes, failure to detect or solve crimes, and failure to identify or apprehend

criminals.” 745 ILCS 10/4-102. But the Plaintiffs do not allege that the Board was

providing or was supposed to provide a police-protection service, so the Board’s

argument fails.

For one, the Board misrelies on an overruled case in arguing that it is

absolutely immunized for failing to prevent a sexual assault. See Bd. Reply Br. at 8.

That case is A.R. ex rel. M.R. v. Chi. Bd. of Educ., 724 N.E.2d 6, 9-11 (Ill. App. Ct.

1999), which interpreted Section 4-102 to provide the Board immunity from

allegations that its bus attendant failed to prevent the sexual assault of a student

committed by another student. See Bd. Reply Br. at 8. But what is missing from the

Board’s argument is that the Illinois Supreme Court later held (in another case) that

furnishing a bus attendant does not qualify as providing a police-protection service,

and “to the extent that result … is inconsistent with the holding in A.R. … that case

is overruled.” Doe ex rel. Ortega-Piron v. Chi. Bd. of Educ., 820 N.E.2d 418, 423 (Ill.

2004). Specifically, the Illinois Supreme Court held that A.R. did not apply the

condition that police-protection services must be provided for that aspect of immunity

to apply; under the plain language of Section 4-102, “immunity for failure to prevent

a crime attaches if police protection serviced is provided.” Id. at 421 (cleaned up)

(emphasis in original).

Here, the Plaintiffs are correct that the negligence and willfulness claims are

not related to police-protection services. It is not as if the Plaintiffs are trying to hold

the Board liable for Reynolds’ alleged failure to intervene; he is named only in a

§ 1983 claim as an individual defendant (and there is no respondeat superior liability

for § 1983 claims). In any event, even an allegation like that—concerning a classroom

assistant—could not be characterized as providing, or failing to provide, “police

protection services” under Doe ex rel. Ortega-Piron, 820 N.E.2d at 423. Instead, the

Plaintiffs allege that the Board proximately caused James Doe’s injuries because it

failed to “reasonably direct, instruct, supervise, monitor, and train its employees on

student safety on abuse.” See id.; Am. Compl. ¶¶ 106-15. There are no facts to suggest

that the Board is going to be faulted for any conduct analogous to “a police officer or

someone standing in the place of a police officer to enforce the law,” Doe ex rel. Ortega-

Piron, 820 N.E.2d at 421-22, nor any allegations that the Board “provided services

performed by police personnel, such as weapons detection, traffic control, and crowd

security and control[,]” Reyes, 139 N.E.3d at 139. Because the alleged misconduct did

not involve police-protection services under Section 4-102, the Board’s argument on

this point is rejected.

c. Section 3-108

The final immunity question is whether the Board is shielded by Section 3-108,

which immunizes public entities against injuries proximately caused by the negligent

“supervision” of any “activity” on public property. 745 ILCS 10/3-108(a)-(b). Unlike

the other sections of the Tort Immunity Act discussed above, Section 3-108 does not

protect against liability for willful and wanton misconduct. See Doe ex rel. Ortega-

Piron, 820 N.E.2d at 423. But on negligence claims, courts have interpreted Section

3-108 broadly to cover claims for failure to provide supervision and failure to

adequately supervise employees on school property. See, e.g., id. at 423-24 (holding

that Section 3-108 applied where plaintiff alleged that the Board’s failure to provide

supervision—by way of a bus attendant—proximately caused plaintiff to be sexually

assaulted); Doe I v. Bd. of Educ. of City of Chi., 364 F. Supp. 3d at 866 (holding that

Section 3-108 immunizes Board from claims for negligent failure to control and to

supervise school employee).

In light of the breadth of Section 3-108, the Board is immunized against the

Plaintiffs’ negligence claim for failure to supervise, monitor, direct, and instruct its

employees. But the negligence claim survives based on conduct outside of those

supervisory duties, such as failure to report the abuse, and failure to conduct

background checks. Those non-supervisory duties are “unaffected by Section 3-108

and may proceed as alleged.” See Doe I v. Bd. of Educ. of City of Chi., 364 F. Supp. 3d

at 866; Am. Compl. ¶ 107. See also Hill v. Galesburg Cmty. Unit Sch. Dist. 205, 805

N.E.2d 299, 304 (Ill. App. Ct. 2004) (“Supervision includes direction, teaching,

demonstration of techniques, and-to-some-degree-active participation.” (cleaned up));

id. at 305 (holding that Section 3-108 provides immunity from liability for injuries

sustained during chemistry class supervised by teacher). So Section 3-108 narrows

the negligence claim against the Board, but does not eliminate it altogether.

d. Willful and Wanton—Knowledge Requirement

Moving on to the merits of the willfulness claim, the Board argues that the

Amended Complaint does not sufficiently allege willful and wanton conduct. As

background, there “is no separate and independent tort of willful and wanton conduct.

… It is regarded as an aggravated form of negligence.” Krywin v. Chicago Transit

Auth., 938 N.E.2d 440, 452 (Ill. 2010). So to “recover damages based upon a

defendant’s alleged negligence involving willful and wanton conduct,” a plaintiff must

still allege, and later prove, that the “defendant owed a duty to the plaintiff, that the

defendant breached the duty, and that the breach was the proximate cause of the

plaintiff’s injury.” Id. The difference, however, is that the plaintiff must also “allege

either a deliberate intention to harm or an utter indifference to or conscious disregard

for the welfare of the plaintiff.” Doe ex rel. Ortega-Piron, 820 N.E.2d at 423.

Here, in arguing that the Plaintiffs failed to state a claim for willful and

wanton conduct, the Board relies on the same arguments it made on the Title IX

claim—namely, that the Plaintiffs have not alleged that anyone with “authority to

institute corrective measures” had actual knowledge of, and was deliberately

indifferent to, the harassment. See Bd.’s Br. at 14-15. Unlike Title IX, however,

liability for willful and wanton misconduct under Illinois common law does not

require actual notice or knowledge.

The Board cites to only one authority—and only did so in the reply brief—for

the proposition that “Illinois courts define willful and wanton conduct … as the failure

to take precautions after knowledge of impending danger.” Bd. Reply Br. at 9 (citing

Doe v. Bridgeforth, 102 N.E.3d 710, 722 (Ill. App. Ct. 2018)). But the ellipses hide a

lot: the omitted words are “in part.” Bridgeforth, 102 N.E.3d at 722 (emphasis added).

The full definition is that a willful and wanton injury “must have been intentional or

the act must have been committed under circumstances exhibiting a reckless

disregard for the safety of others, such as failure, after knowledge of impending

danger, to exercise ordinary care to prevent it or a failure to discover the danger

through recklessness, or carelessness when it could have been discovered by ordinary

care.” O’Brien v. Twp. High Sch. Dist. 214, 415 N.E.2d 1015, 1018 (Ill. 1980) (cleaned

up) (emphasis added). In other words, “willful and wanton conduct differs from mere

negligence in that it requires a conscious choice of a course of action, either with

knowledge of the serious danger to others involved in it or with knowledge of facts

which would disclose this danger to any reasonable man.” Barr v. Cunningham, 89

N.E.3d 315, 319 (Ill. 2017) (cleaned up). If there is no evidence of prior injuries to put

the defendant on notice, then Illinois courts have required “some evidence that the

activity is generally associated with a risk of serious injuries.” Id. at 320. The bottom-

line is that, unlike the Title IX standard, plaintiffs can state a claim for willful and

wanton conduct based only on the defendant’s knowledge of the risk of misconduct.

See St. Francis Sch. Dist., 694 F.3d at 871.

It is true here that no facts in the Amended Complaint suggest that the Board

knew of prior sexual misconduct by Velarde or even by other Special Education

Classroom Assistants. But outright knowledge is not required; recklessness is

enough. And on that form of willful and wanton conduct, the Plaintiffs have provided

enough notice of the claim.

For one, the Plaintiffs allege that the Board acted with utter indifference to or

in conscious disregard for the safety of others when it failed to (1) prevent and report

the improper touching; (2) “reasonably direct, instruct, supervise, monitor, and train

its agents … to ensure timely and proper reporting of sexual abuse”; (3) “be aware of

the care and treatment needed for each student”; and (4) “adequately conduct

reference checks, background checks, or employment screenings of agents … .” See

Am. Compl. ¶¶ 113-14. This is more than enough information to notify the Board of

the specific conduct the Plaintiffs are alleging was willful and wanton.

The Plaintiffs also allege that the Board breached its duties to James Doe

despite having notice of a substantial danger of harm. Am. Compl. ¶¶ 110-12.

Although this is too conclusory on its own, there are other allegations in the Amended

Complaint from which to infer the Board’s “knowledge of facts which would disclose

[the] danger [of sexual abuse] to any reasonable man.” See Barr, 89 N.E.3d at 319.

For example, the Plaintiffs allege that the Board “deliberately disregarded” its own

requirements to conduct background checks and allowed persons who did not undergo

screening “to have exposure to children.” Am. Compl. ¶ 36. In addition, the Plaintiffs

allege that an August 2018 report on “Preventing and Responding to Sexual

Misconduct against Student[s] in Chicago Public Schools” found “systematic

deficiencies in CPS’ efforts to prevent and respond to incidents of sexual misconduct

occurring at all levels of the schools, the networks, the Central Office, and the Board,

and that, while there were policies and procedures about sexual misconduct on the

books, employees were not consistently trained on them, and there were no

mechanisms to ensure that they were being uniformly implemented or to evaluate

their effectiveness.” Id. ¶¶ 41-42. Although the report was released after Velarde’s

alleged harassment of James Doe, together with the Plaintiffs’ other allegations, it

does support a plausible inference that the Board knew that its employees were not

consistently trained on sexual misconduct policies, knew these policies were not

uniformly implemented, and knew that it was not conducting background checks on

all employees. Viewing the Amended Complaint in the light most favorable to the

Plaintiffs, these facts could plausibly alert any reasonable person that there was a

serious danger to student safety.

It is true that, later at the summary judgment stage, the Plaintiffs will have

to turn these allegations into evidence-supported facts. But at this point, because the

Plaintiffs have adequately pled willful and wanton conduct, the Board’s motion to

dismiss Count 8 is denied.

2. Battery (Count 9)

The Plaintiffs also bring a claim for battery against Velarde, as well as against

the Board under a theory of vicarious liability. Am. Compl. ¶¶ 116-19. “To allege

battery, [a] plaintiff must allege that the defendant intended to cause a harmful or

offensive contact and that a harmful or offensive contact resulted.” Happel v. Wal-

Mart Stores, Inc., 737 N.E.2d 650, 657 (Ill. App. Ct. 2000). An employer may be liable

for a battery committed by one of its employees “only when the employee’s acts were

committed within the scope of his employment.” Doe ex rel. Doe v. Lawrence Hall

Youth Servs., 966 N.E.2d 52, 60 (Ill. App. Ct. 2012). As explained next, Velarde’s

motion to dismiss the battery claim is denied, but the Board’s motion is granted.

a. Velarde

Velarde correctly points out that, under Illinois law, “‘there exists a dichotomy

within the intent requirement for the tort of battery, i.e., whether intent equates to

an intent to harm or offend, or merely an intent to touch.’” Velarde Br. at 8-9 (quoting

Bakes v. St. Alexius Med. Ctr., 955 N.E.2d 78, 85 (Ill. App. Ct. 2011)). Compare Bakes,

955 N.E.2d at 85, with Boyd v. City of Chicago, 880 N.E.2d 1033, 1043-44 (Ill. App.

Ct. 2007) (“The tort of battery is defined as the unauthorized touching of another’s

person.”), and Kling v. Landry, 686 N.E.2d 33, 41 (Ill. App. Ct. 1997) (“An action for

battery does not depend on the hostile intent of the defendant, but on the absence of

the plaintiff’s consent to the contact.”). Either way, even on the more onerous

standard (intent to harm), the Plaintiffs have readily alleged enough.

The Plaintiffs allege that Velarde touched James Doe “without consent” and

that the touching “was of an insulting or provoking nature,” Am. Compl. ¶¶ 117-18,

which satisfies the requirement that the touching be “unauthorized” or “offensive.”

Also, the fact that this occurred on at least two occasions—and that on at least one of

these occasions, Velarde touched James Doe’s penis “multiple times,” id. ¶ 22—

satisfies the more demanding “intent to harm or offend” standard. In other words,

the Plaintiffs have plausibly alleged that repeatedly touching a student’s penis

without their consent could neither be an accident nor a well-intentioned act. See

Zuidema v. Raymond Christopher, Inc., 866 F. Supp. 2d 933, 940 (N.D. Ill. 2011)

(holding that plaintiff stated a claim for battery where the defendant touched him “in

a sexual manner without his consent on various occasions[,]” and the conduct “was

offensive to a reasonable person and … undertaken with malice, willfulness, and

reckless indifference to Plaintiff’s rights and emotional well-being.”). So the battery

claim survives against Velarde.

b. The Board

In contrast, the battery claim against the Board fails as a matter of law,

because foisting respondeat superior liability on the Board requires that Velarde

acted within the scope of employment. On that requirement, the Plaintiffs maintain

that Velarde’s conduct was within the scope of his employment because he was

carrying out his duties as a Special Education Classroom Assistant at the time. Pls.’

Resp. Br. at 11. But that argument does not hold up under the Illinois definition of

“scope of employment.”

Specifically, Illinois courts have explained that “[w]here an employee’s

deviation from the course of employment is slight and not unusual, a court may find

… that the employee was still executing the employer’s business. Conversely, when a

deviation is exceedingly marked and unusual, as a matter of law the employee may

be found to be outside the scope of employment.” Stern v. Ritz Carlton Chi., 702

N.E.2d 194, 196 (Ill. App. Ct. 1998) (cleaned up). Moreover, where an employee

commits an intentional tort “purely in his own interest” vicarious liability does not

apply. Randi F. v. High Ridge YMCA, 524 N.E.2d 966, 970 (Ill. App. Ct. 1988); see

also Stern, 702 N.E.2d at 198 (holding that hotel-employer was not vicariously liable

for employees’ actions because the “sexual assault of plaintiffs during the course of

each massage could in no way be interpreted as an act in furtherance of the

[employer’s] business interests … .”). In Randi, the Illinois Appellate Court held that

the sexual molestation of a child by a teacher’s aide was not within the scope of the

aide’s employment, even though her duties included “the care, custody, control,

supervision and discipline” of children. 524 N.E.2d at 963, 968. Same here: even

though Velarde’s alleged misconduct occurred while he acting as James Doe’s

Classroom Assistant, his actions could not have been in furtherance of the Board’s

interests. The alleged sexual misconduct is too far afield from Velarde’s duties to be

considered within the scope of employment. This claim against the Board must be

dismissed with prejudice.

IV. Conclusion

For the reasons explained in this Opinion, the Court decides as follows.

With regard to the Board,

 the Title IX claim (Count 1) is dismissed without prejudice;

 the Rehabilitation Act and ADA claims (Counts 2 and 3) are

dismissed without prejudice;

 the negligence claim (Count 7) is dismissed with prejudice in part

as to failure to supervise, monitor, direct, and instruct, but

otherwise survives;

 the willful and wanton conduct claim (Count 8) survives; and

 the battery claim (Count 9) is dismissed with prejudice.

With regard to Velarde,

 the equal-protection claim (Count 4) survives;

 the Fourth Amendment claim (Count 5) is dismissed without

prejudice;

 the substantive due process claim (Count 6) survives; and

 the battery claim (Count 9) survives.

With regard to Reynolds, the sole claim against him, for failure to intervene

(Count 10), survives.

For the dismissals that are without prejudice, the Plaintiffs may file a second

amended complaint to fix the deficiencies (if possible) identified in this Opinion by

April 27, 2020. The status hearing set for April 30, 2020, at 9:15 a.m. remains in

place.

ENTERED:

s/Edmond E. Chang

Honorable Edmond E. Chang

United States District Judge

DATE: March 24, 2020