Doe v. Thornton Township High School District 205

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JANE DOE,

Plaintiff,

Case No. 19 cv 7477

v.

Judge John Robert Blakey

THORTON TOWNSHIP HIGH SCHOOL

DISTICT 205 BOARD OF EDUCATION,

MILTON MCGRIGGS, LEOTIS SWOPES,

JAMES WALTON, and STEVE VALANT,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Jane Doe sued Defendants Thornton Township High School District

205 Board of Education (“the Board” or “District 205”) and several District 205

employees (Thornridge High School principal James M. Walton, Jr.; assistant

principal Steve Valant; Superintendent Leotis Swopes; and Thornridge

softball/football coach Milton McGriggs), alleging violation of Title IX of the Civil

Rights Act’s Education Amendments of 1972, 20 U.S.C. § 1681–88. See [57]. Plaintiff

also alleges state-law claims of negligent infliction of emotional distress; failure to

supervise; willful and wanton conduct; and sexual battery (the latter against

McGriggs only). Id. The Board moves to dismiss Plaintiff’s complaint for failure to

state a claim and for lack of jurisdiction, see [61], and Defendants Swopes, Walton,

and Valant (collectively “the School Administrator Defendants”) separately move to

dismiss on those same bases, see [63].1 For the reasons explained below, the Court

denies the Board’s motion [61], and denies the School Administrator Defendants’

motion [63].

I. The Complaint’s Allegations

At the time of the complaint, Plaintiff was a minor female student at

Thornridge High School in Dolton, Illinois, one of three high schools comprising

Thornton Township High School District 205. [57] at ¶¶ 4, 9. On July 5, 2016,

Plaintiff’s mother came home from work early and found Defendant McGriggs,

Plaintiff’s 49-year old coach, sexually assaulting Plaintiff. Id. at ¶¶ 5, 10–11.

McGriggs coached Plaintiff when she played on Thornridge’s softball team, and he

also supervised her in his capacity as football coach when she served as the manager

of the football team. Id. at ¶¶ 11, 20, 26–27.

Almost a year earlier, on August 18, 2015, Defendant McGriggs asked

Plaintiff’s mother to sign an authorization that would allow McGriggs to transport

Plaintiff to and from softball games. Id. at ¶ 15. Plaintiff’s mother agreed, believing

such authorization comported with school policy and that McGriggs transported

multiple softball players and students. Id. at ¶ 16. Plaintiff’s mother submitted the

requested authorization to Defendants Walton and Valant, neither of whom batted

an eye; neither advised Plaintiff’s mother that such transportation violated school

policy. Id. at ¶¶ 17–18. As a result of this authorization, McGriggs had isolated

access to Plaintiff, with Walton and Valant’s knowledge, without Plaintiff’s mother’s

1 McGriggs has not responded to the complaint, and the time for him to do so has passed. Accordingly,

the Court directs the Clerk to enter McGriggs’ default on the docket pursuant to Rule 55(a).

knowledge, and against the express policy of the school. Id. at ¶¶ 17, 19. Granted

such access, McGriggs routinely touched and rubbed up against Plaintiff, sexually

penetrated Plaintiff, and forced Plaintiff to perform sexual acts on him while the two

were on school property for scheduled football practices and during football games.

Id. at ¶¶ 21–23. Plaintiff alleges that McGriggs conditioned Plaintiff’s positions as

football manager and star softball player on her continued willingness to engage in

such sexual acts, and that, as a result of such acts, she wound up with a sexually-

transmitted disease and her academic performance suffered. Id. at ¶¶ 24–27.

In April of 2016, Sherry Jackson, the boys’ athletic director for District 205,

asked McGriggs about his personal relationship with Plaintiff, including the

circumstances of their transportation arrangement. Id. at ¶ 28. In response,

McGriggs told Jackson that he served as Plaintiff’s legal guardian and that Principal

Walton had approved the transportation arrangement. Id. at ¶¶ 29–30. Jackson

investigated, discovered that McGriggs was not Plaintiff’s guardian, and expressed

concerns to Defendants Walton and Valant via email on April 2, 2016. Id. at ¶¶ 31–

32. Walton then emailed Defendant Swopes, District 205’s superintendent, to advise

Swopes of McGriggs’ violations of school policy and to assure Swopes that he would

investigate the matter. Id. at ¶ 37. Yet, Plaintiff alleges, neither Walton, nor anyone

else at District 205, investigated the situation. Id. at ¶ 39.

Plaintiff alleges that McGriggs has a history of inappropriate sexual

harassment of students: he impregnated a former student athlete and harassed

another female student at Plaintiff’s school to the point where she transferred out of

the District. Id. ¶ 14. She alleges that the District knew about McGriggs’ history of

misconduct and continued to employ him as a football coach and softball coach. Id.

She also alleges that the District “has a long-standing history of failing to protect its

students” (including Plaintiff) from McGriggs. Id. at ¶ 44. She alleges that, despite

their knowledge of McGriggs’ history, and despite Jackson’s warnings, Defendants

failed to take any action to stop or prevent McGriggs’ abuse of Plaintiff. Id. at ¶ 43.

Plaintiff alleges that, had her mother not come home to find McGriggs abusing her,

and had her mother not had McGriggs arrested, the abuse would have continued

unabated. Id. at ¶¶ 39–40, 43.

Plaintiff filed this lawsuit on November 12, 2019. See [1]. She amended her

complaint twice, and her second amended complaint, [57], which names McGriggs,

Swopes, Walton, Valant, and the District, alleges five counts: sexual battery against

McGriggs (Count I); negligent infliction of emotional distress (Count II), failure to

supervise (Count III), and willful and wanton conduct (Count IV) against all

Defendants; and violation of Title IX against the Board (Count V).

The Board moves to dismiss, [61], arguing that Plaintiff’s Title IX claim fails

to state a claim and that the state-law claims should be dismissed both for failure to

state a claim and (once the federal claim goes) for lack of supplemental jurisdiction;

the Board also argues that the Tort Immunity Act precludes liability for Plaintiff’s

negligence claims. [62]. The School Administrator Defendants (Swopes, Walton, and

Valant) move separately to dismiss, [63], on the same bases, [64].

II. Legal Standard

Defendants move to dismiss for failure to state a claim under Rule 12(b)(6).

Under this rule, the Court must construe the complaint in the light most favorable to

Plaintiff, accept as true all well-pleaded facts, and draw all reasonable inferences in

her favor. Yeftich v. Navistar, Inc., 722 F.3d 911, 915 (7th Cir. 2013); Long v.

Shorebank Development Corp., 182 F.3d 548, 554 (7th Cir. 1999). The Court,

however, need not accept as true statements of law. Yeftich, 722 F.3d at 915. To

survive Defendants’ motion under Rule 12(b)(6), the complaint must “state a claim to

relief that is plausible on its face.” Id. A claim has “facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Id. Rule 12(b)(6) limits this

Court's consideration to “allegations set forth in the complaint itself, documents that

are attached to the complaint, documents that are central to the complaint and are

referred to in it, and information that is properly subject to judicial notice.”

Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013).

III. Analysis

The Board and the School Administrator Defendants separately seek to

dismiss Plaintiff’s Title IX claim and her state-law claims under Rule 12(b)(6) for

failure to state a claim; they also argue that, without the Title IX claim, Plaintiffs’

state-law claims should be dismissed under 28 U.S.C. § 1367(c), which encourages

district courts to “decline to exercise supplemental jurisdiction” over state-law claims

once all federal claims are dismissed. See [61], [62]; [63]; [64]. The Court considers

the arguments in the context of specific claims, and also considers Defendants’ claims

of immunity, below.

A. Plaintiff’s Title IX Claim

Title IX prohibits “sex discrimination by recipients of federal education

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

other things, the statute prohibits teacher-student sexual harassment and abuse.

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.”) (quoted in Doe v. Bd. of Educ. of

City of Chicago, No. 19 C 00263, 2020 WL 1445638, at *2 (N.D. Ill. Mar. 24, 2020)).

But because Title IX does not allow for vicarious liability, students who are sexually

harassed by school employees can only 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). School administrators possess “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).

A Title IX plaintiff 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 Doe, 2020 WL 1445638, at *2 (citing Mary M. v. N.

Lawrence Cmty. Sch. Corp., 131 F.3d 1220, 1228 (7th Cir. 1997)).

The Board argues that Plaintiff does not allege that she was discriminated

against or denied the benefits of her education on the basis of her sex. [62] at 8. But

she does: she alleges that she was sexually assaulted, harassed and abused, and that,

as a result, her grades suffered; she also alleges that her extracurricular positions

were conditioned on her compliance with her coach’s demands for sexual favors.

Courts recognize that harassment by a teacher inherently undermines a student’s

educational experience and a drop off in grades is evidence of such conduct. Doe I v.

Bd. of Educ. of City of Chicago, 364 F. Supp. 3d 849, 861 (N.D. Ill. 2019). These

allegations suffice at this stage.

The Board next argues that Plaintiff alleges no facts showing that the Board

was on actual notice of McGriggs’ sexual harassment and abuse. Again, not so.

Plaintiff alleges the Board knew that McGriggs had a history of harassment and

abuse, that he impregnated a former student, and that he harassed another student

to the point where she left the school. [57] at ¶ 14. She also alleges that she alerted

Defendants to the fact that McGriggs was not only spending time alone with Plaintiff

in his car regularly but was also lying about his authority to do so. Id. at ¶¶ 28–35.

Defendants dispute the exact content of Jackson’s emails. But whatever the precise

contours of Jackson’s email, when combined with Plaintiff’s allegations about

McGriggs’ history and Defendants’ knowledge of that history, Plaintiff’s allegations

suffice. Indeed, Plaintiff alleges that Jackson’s email was enough to raise red flags

with Defendant Walton, who immediately wrote to his boss, promising to take care of

the situation. Id. at ¶¶ 36–37. Plaintiff alleges that Walton never followed through

though; no one took any action to investigate or correct the situation. Id. at ¶ 39. In

fact, Plaintiff alleges that Walton said he would take corrective measures but did

nothing. Based upon these allegations (which this Court accepts as true on a motion

to dismiss), a reasonable jury could find both actual knowledge and deliberate

indifference.

Finally, the Board argues that Plaintiff’s Title IX claim fails because she fails

to allege facts showing that the Board had “requisite control over the abuse.” [62] at

8. Nonsense. She alleges that McGriggs, while employed by the Board’s high school,

sexually harassed her while she was a student at that school. And she alleges that

the harassment took place on school property, before and after sanctioned school

events.

Plaintiff alleges facts to show that school officials knew of the alleged abuse at

the time it was happening: she alleges that McGriggs was driving her around in 2016,

that Sherry Jackson advised school administrators of this fact in April 2016, and that

Principal Walton agreed to look into the matter in April 2016; she alleges that

McGriggs sexually abused her in 2015 and 2016, through July 2016, when plaintiff’s

mother discovered the abuse.2 Plaintiff also alleges facts to suggest that McGriggs

2 Plaintiff claims Sherry Jackson “communicated that Mr. McGriggs sexually harassed Plaintiff.” [69]

at 10. To the extent this statement is predicated solely upon Jackson’s April 2, 2016 email, it is

demonstrably false. But, as explained above, what she did say (which falls short of expressly

communicating sexual harassment), coupled with what Plaintiff alleges Defendants already knew

about McGriggs, remains sufficient to create a reasonable inference of actual knowledge, which is all

that is required at this stage.

had a known history of sexual misconduct, which could also serve to impute

knowledge on the Board’s behalf. See Hansen v. Bd. of Trs. of Hamilton Se. Sch.

Corp., 551 F.3d 599, 605–06 (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”).

Based upon these allegations, the Court declines to dismiss Plaintiff’s Title IX claim

against the Board.

Having said all of this, as the School Administrators correctly note, Title IX

actions may only be brought against educational institutions. See Smith v. Metro.

Sch. Dist. Perry Twp., 128 F.3d 1014, 1019 (7th Cir. 1997) (“Because Title IX only

protects against discrimination under any education program or activity receiving

federal financial assistance, we agree with the First Circuit’s conclusion in Lipsett [v.

Univ. of Puerto Rico, 864 F.2d 881, 884, 901 (1st Cir. 1988)] that a Title IX claim can

only be brought against a grant recipient and not an individual.”). To the extent

Plaintiff includes the School Administrator Defendants in her Title IX claim (and it

appears that she does not), the Court would grant the motion to dismiss. Plaintiff

may proceed on this claim only against the educational institution that receives the

federal funding.

B. Plaintiff’s State-Law Claims

In addition to her Title IX claim, Plaintiff brings state-law claims against the

Board and the School Administrator Defendants alleging negligent infliction of

emotional distress (count II), failure to supervise (count III), and willful and wanton

conduct (count IV).3 The Board and the School Administrator Defendants separately

move to dismiss all of these claims for failure to state a claim and pursuant to the

Illinois Tort Immunity Act.4

1. Negligent Infliction of Emotional Distress

Generally, to state a claim for negligent infliction of emotional distress under

Illinois law, a plaintiff “must allege the traditional elements of negligence: duty,

breach, causation, and damages”; additionally, a direct victim of alleged negligent

infliction of emotional distress, like Plaintiff, must satisfy the “impact rule” by

showing that the emotional distress “was accompanied by a contemporaneous

physical injury to or impact on the plaintiff.” Doe v. Loyola Univ. of Chicago, No. 18

C 7335, 2019 WL 3801819, at *3 (N.D. Ill. Aug. 13, 2019) (citing Schweihs v. Chase

Home Fin., LLC, 77 N.E.3d 50, 58 (Ill. 2016); Lewis v. CITGO Petroleum Corp., 561

F.3d 698, 703 (7th Cir. 2009)). A direct victim need not, however, allege that she

suffered physical manifestations resulting from the emotional distress; emotional

injuries alone suffice. Id.

Here, Plaintiff alleges that Defendants maintained duties to “provide and

employ appropriate educational services and competent teachers and counselors and

safeguard its students from harmful conduct perpetrated by other District

employees,” and “to provide a safe and secure environment for public elementary

3 Plaintiff also brings a claim for sexual battery against McGriggs. See [57] at ¶¶ 46–48. Because this

claim is not asserted against the moving Defendants, the Court need not discuss it here.

4 Although Defendants also move to dismiss pursuant to 28 U.S.C. § 1367(c)(3), the Court’s decision

on Plaintiff’s Title IX claim moots this argument.

educational pursuits.” [57] at ¶¶ 54, 55. She alleges that Defendants breached these

duties, and that their breaches caused her injuries, including pain and suffering,

humiliation, embarrassment, fear, severe emotional trauma, mental anguish, the

deprivation of her constitutional rights and dignity, interference with her normal life,

lost time, and attorneys’ fees. Id. at ¶¶ 56, 45. She also alleges that, as a result of

Defendants’ negligence, she suffered sexual assault and battery, unwanted sexual

advances, and unconsented to sexual interactions, as well as a sexually-transmitted

disease. Id. at ¶¶ 10, 21, 23–27. She alleges, in short, the elements of negligence, a

physical impact, and emotional distress. As a result, the Court declines to dismiss

Count II under Rule 12(b)(6).

2. Failure to Supervise

In count III, Plaintiff asserts a failure to supervise claim against all

Defendants. [57] at ¶¶ 58–63. To successfully maintain a “willful and wanton failure

to supervise claim against a public entity, a plaintiff must show that the defendant

engaged in a ‘course of action that proximately caused the plaintiff’s injuries,

including having prior knowledge of similar incidents.’” Sterling v. Bd. of Educ. of

Evanston Twp. High Sch. Dist. 202, No. 19-CV-05599, 2021 WL 809763, at *8 (N.D.

Ill. Mar. 3, 2021) (quoting S.J. v. Perspectives Charter Sch., 685 F. Supp. 2d 847, 859

(N.D. Ill. 2010)). In addition to arguing immunity, which the Court discusses below,

Defendants argue that Plaintiff has failed to state a claim. In particular, they argue,

she has failed to allege facts demonstrating that they had prior knowledge of similar

incidents. But, as discussed above, she has alleged facts showing knowledge. She

alleges that “Defendant McGriggs had a history of inappropriate harassment”

including harassment and contact that caused another female student at the school

to transfer out of the district; she also alleges that McGriggs impregnated another

female student. [57] at ¶ 14. And she alleges that Defendant School district “had

actual knowledge of” McGriggs’ history and continued to employ him as a football and

softball coach. Id. These allegations suffice, and the Court declines to dismiss Count

II based on the sufficiency of her allegations.

3. Willful and Wanton Conduct

In Count IV, Plaintiff alleges “willful and wanton conduct.” But Illinois law

does not recognize a “separate and independent tort of willful and wanton conduct.”

Doe, 2020 WL 1445638, at *14 (quoting Krywin v. Chi. Transit Auth., 938 N.E.2d 440,

452 (Ill. App. Ct. 2010)); see also Ziarko v. Soo Line R. Co., 641 N.E.2d 402, 406 (Ill.

1994)). Rather, willful and wanton conduct constitutes an aggravated form of

negligence upon which a plaintiff can recover damages by alleging—and later

proving—the elements of a negligence claim and “a deliberate intention to harm or

an utter indifference to or conscious disregard for the welfare of the plaintiff.”

Krywin, 938 N.E.2d at 452. But Plaintiff does not allege a separate claim of

negligence. As a result, the Court construes count IV as claiming negligence, based

upon willful and wanton conduct.

To recover damages based upon a defendant’s alleged negligence involving

willful and wanton conduct, a plaintiff must 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.” Doe, 2020 WL 1445638, at *14. And then,

in addition, she must also allege “either a deliberate intention to harm or an utter

indifference to or conscious disregard for the welfare of the plaintiff.” Id. (citing Doe

ex rel. Ortega-Piron, 820 N.E.2d 418, 423 (Ill. 2004)).

Generally, a person has “no duty under Illinois law to act affirmatively to

protect another from criminal conduct by a third person.” Doe I, 364 F. Supp. 3d at

869 (citing Doe-2 v. McLean Cty. Unit Dist. No. 5 Bd. of Directors, 593 F.3d 507, 514

(7th Cir. 2010); Iseberg v. Gross, 879 N.E.2d 278, 284 (Ill. 2007)). Where, however,

the defendant has a “special relationship” with the plaintiff, that relationship may

give rise to a duty to protect under certain circumstances. Id. For example, “‘a school

district with unique knowledge that one of its teachers or students poses a particular

threat to another student may acquire a duty to protect.’” Id. (quoting Doe-2, 593

F.3d at 515 and citing Doe v. Dimovski, 783 N.E.2d 193, 200 (Ill. 2003) (allegations

that school board failed to act upon learning of the sexual transgressions of a teacher

with one student were sufficient to show a conscious disregard for the safety of other

female students)).

Here, Plaintiff’s allegations concerning McGriggs’ prior sexual misconduct,

coupled with her allegation that Defendants knew about such conduct, and the

allegation that Jackson alerted Defendants to the fact that McGriggs frequently spent

time alone with Plaintiff in his car, in violation of school policy, support the argument

that Defendants had a duty to protect Plaintiff from McGriggs (and that their failure

to do so despite their knowledge makes their conduct willful and wanton).

In moving to dismiss Plaintiff’s negligence claims, Defendants rely upon Doe

v. Bridgeforth, 102 N.E.2d 710 (Ill. App. Ct. 2018). In Bridgeforth, the court

determined that the plaintiff failed to prove willful and wanton conduct within the

context of a claim arising out of a sexual assault that occurred when a coach was

transporting a student. Although the facts surrounding the alleged sexual

misconduct are eerily similar in the two cases, the cases differ significantly: the

Bridgeforth plaintiff did not allege that the sexually assaulting teacher had a history

of such conduct such that Defendants knew or should have known he posed a danger

to the student he was transporting. 102 N.E.2d at 725. Moreover, that case went to

trial after full discovery, rather than being tossed out on a motion to dismiss.

As to knowledge, the facts alleged here paint quite a different picture. Plaintiff

alleges that the Board and the School Administrator Defendants had notice of the

relationship between McGriggs and Plaintiff, including through both a permission

slip and an email from Sherry Jackson; she also alleges that Defendants knew

McGriggs previously victimized other female students, creating a plausible inference

that they knew Plaintiff faced an impending danger of sexual assault from McGriggs.

She also alleges that they failed to take any action to protect her from that danger,

and that, as a result, she suffered damages. The Court will not dismiss her claim

based upon the sufficiency of her allegations.

C. Tort Immunity

The Illinois Tort Immunity Act, 745 Ill. Comp. Stat. 10/1-101–10-101, embodies

the Illinois legislature’s “attempt to create certain uniform rules of immunity as

exceptions to the general rule of municipal liability.” Aikens v. Morris, 583 N.E.2d

487, 490 (Ill. 1991). The Act supplies an affirmative defense, which means

Defendants bear the burden of establishing its applicability. Taylor v. Bd. of Educ.

of City of Chi., No. 18 C 7874, 2020 WL 5076718, at *7 (N.D. Ill. Aug. 27, 2020); Hill

v. Cook County, No. 18 C 8228, 2020 WL 2836773, at *20 (N.D. Ill. May 31, 2020).

Although Plaintiff need not anticipate affirmative defenses in pleading her complaint,

she may plead herself out of court by alleging facts sufficient to implicate the Act in

the complaint itself. Doe I, 364 F. Supp. 3d at 863 (citing Sidney Hillman Health Ctr.

of Rochester v. Abbott Labs., Inc., 782 F.3d 922, 928 (7th Cir. 2015); Chi. Bldg. Design,

P.C. v. Mongolian House, Inc., 770 F.3d 610, 613–14 (7th Cir. 2014)).

The Board and the School Administrator Defendants separately claim

immunity for any liability on Plaintiff’s state-law claims. The Board and the School

Administrator Defendants all claim immunity under Sections 2-201, 4-102, and 3-

108(a) of the Tort Immunity Act. The Court considers each in turn below.

1. Section 2-201

Defendants first assert immunity under Section 2-201 of the Act, which

provides that:

a public employee serving in a position involving the determination of

policy or the exercise of discretion is not liable for an injury resulting

from his act or omission in determining policy when acting in the

exercise of such discretion even though abused.

745 Ill. Comp. Stat. Ann. 10/2-201. Although this section only expressly immunizes

“public employees,” Illinois courts hold that local public entities “are also clothed with

immunity if their employees are not liable for the injury resulting from their acts or

omissions.” LaPorta v. City of Chicago, 277 F. Supp. 3d 969, 997 (N.D. Ill. 2017)

(citing Arteman v. Clinton Cmty. Unit Sch. Dist. No. 15, 763 N.E.2d 756, 762–63 (Ill.

2002)); see also Weiler v. Village of Oak Lawn, 86 F. Supp. 3d 874, 885 (N.D. Ill. 2015).

This immunity only applies, however, where a public employee has engaged in both

the determination of policy and the exercise of discretion when performing the act or

omission upon which Plaintiff bases her injury. Doe I, 364 F. Supp. 3d at 866;

LaPorta, 277 F. Supp. 3d at 997.

Defendants argue that Section 2-201 immunizes them from liability for

Plaintiff’s negligence claims, which stem from the exercise of discretion in balancing,

enforcing, and implementing school policies (including the policies relating to

teacher/parent and teacher/student interactions). [64] at 6–7; [74] at 7–8.

Defendants may ultimately prevail on this argument. But not now. The Section 2-

201 analysis “resists precise formulation.” Snyder v. Curran Township, 657 N.E.2d

988, 992 (Ill. 1995). For this reason, courts typically defer decisions regarding

discretionary immunity under Section 2-201 until the parties have developed a full

factual record that illuminates which of employees acted and whether those actions

qualify as discretionary policy decisions. See Doe I, 364 F. Supp. 3d at 867 (collecting

cases).

Moreover, the Illinois Supreme Court has emphasized that, before a court can

determine whether a governmental unit or employee is immune from negligence

liability based upon willful and wanton acts or omissions, it must first determine if

any duty of care by the public entity exists. Village of Bloomingdale v. CDG

Enterprises, Inc., 752 N.E.2d 1090 (Ill. 2001) (cited in Albert v. Bd. of Educ. of City of

Chicago, 24 N.E.3d 28, 37–38 (Ill. App. Ct. 2014)). The operative complaint does not

explain who made the decision to hire McGriggs or to address (or not address) any

relationship between McGriggs and Plaintiff (or McGriggs and Plaintiff’s mother);

nor does the limited record before the Court explain the specific actions taken in

connection with the revelations about McGriggs’ behavior. At the pleadings stage,

this Court cannot conclude as a matter of law that Section 2-201 immunity applies.

In fact, if what Plaintiff alleges proves to be true, such immunity likely will not apply.

See Brookman as next friends of A.B. v. Reed-Custer Cmty. Unit, Sch. Dist. 255-U, No.

18 C 7836, 2019 WL 4735395, at *4 (N.D. Ill. Sept. 27, 2019) (there is no need to

“weigh competing interests” before stopping sexual assault; though the “mode of

intervention” may be discretionary, “the need to intervene is not.”).5 This Court thus

denies Defendants’ motion to dismiss Plaintiff’s claims on this basis.

2. Section 4-102

Section 4-102 of the Tort Immunity Act immunizes local public entities for

“failure to: (1) establish a police department; (2) otherwise provide police protection;

or, if police protection is provided, (3) failure to provide adequate police protection

service.” Albert, 24 N.E.3d at 43 (citing 745 Ill. Comp. Stat. Ann. 10/4-102; DeSmet

v. County of Rock Island, 848 N.E.2d 1030 (Ill. App. Ct. 2006)). For purposes of the

Act, a school district and any other local governmental bodies such as the Board count

5 Defendants cite Brookman to support their immunity claim, and, to be sure, it holds that “a school

administrator’s response to harassment and bullying is a discretionary, policymaking decision entitled

to immunity under Section 2-201.” Brookman, 2019 WL 4735395, at *3. But the allegations here go

far beyond bullying and harassment; Plaintiff alleges rape.

as a “local public entity.” Id. (citing 745 ILCS 10/1-206). And the Illinois Supreme

Court has instructed that “functions traditionally performed by police, such as

weapons detection, traffic control, and crowd security and control” are immunized

under section 4-102. Id. Plaintiff’s complaint, however, does not claim Defendants

failed to provide adequate police protection; rather, she alleges that Defendants knew

McGriggs posed a danger to her yet failed to protect her from that danger. Section 4-

102 does not apply here.

3. Section 3-108(a)

Finally, Defendants argue that Section 3-108(a) of the Tort Immunity Act

insulates them from liability for claims arising from a failure to supervise and the

negligent infliction of emotional distress. [64] at 7–8. Section 3-108(a) of the Tort

Immunity Act provides:

neither a local public entity nor a public employee who undertakes to

supervise an activity on or the use of any public property is liable for an

injury unless the local public entity or public employee is guilty of willful

and wanton conduct in its supervision proximately causing such injury.

745 ILCS 10/3-108(a). Plaintiff alleges the Defendants had a duty to reasonably

supervise teachers, counselors, and administrators, and acted with reckless and

conscious disregard for the safety and welfare of its students by ignoring sexual

abuse. She alleges that McGriggs had a history as a sexual predator at the school,

that Defendants knew about that history, and that they failed to take any action to

stop McGriggs or to protect their students from sexual harassment and abuse. [57]

at ¶¶ 14, 43–44. She alleges that Defendants “knowingly and intentionally

disregarded a substantial risk of harm it knew or should have known existed towards

Plaintiff and their other students, id. at ¶¶ 66–67, and that they intentionally

disregarded the known risk of harm to Plaintiff by failing to investigate or supervise

McGriggs and by allowing him unfettered and isolated access to Plaintiff and other

female students, despite their knowledge of McGriggs’ predatory behavior, id. at ¶

67. She alleges that Defendants’ failure to control or supervise McGriggs (knowing

what they knew about him) caused Plaintiff personal, emotional, and pecuniary

injuries. Id. at 68. This is not a case where a teacher failed to supervise or monitor

the bad behavior of another student; Plaintiff alleges that Defendants hired a known

sexual predator and then allowed him to have isolated access to her, failing to take

any action to protect her from the known risk of sexual abuse, which then occurred.

The allegations that Defendants effectively allowed the sexual abuse of the minors

they were charged to protect and educate, if true (and the Court assumes they are

true at this point) suffice to constitute willful and wanton conduct. Ultimately,

Plaintiff might not be able to prove that the Defendants are guilty of willful and

wanton conduct, but she most certainly has alleged as much. Defendants obviously

dispute all of these allegations. But such disputes will be resolved at summary

judgment or trial, not on a motion to dismiss. Accordingly, the Court will not dismiss

her claims under Section 3-108(a).

IV. Conclusion

For the reasons explained above, this Court denies Defendants’ motions to

dismiss [61], [63]. Defendants shall answer the operative complaint [57] by April 12,

2021, and the parties shall file a joint status report by April 27, 2021, proposing a

reasonable fact discovery deadline, indicating whether they will need expert

discovery (and, if so, proposing a schedule for same), and indicating whether they are

interested in a settlement conference. This Court will set case management deadlines

in a future order.

Date: March 29, 2021

ENTERED:

John Robert Blakey a

United States District Judge

20