Spence v. Board of Education of Lombard School District 44

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

GERZINE SPENCE, as next friend and )

parent of SM, a minor, )

)

Plaintiff, )

)

v. ) 21 C 1151

)

BOARD OF EDUCATION OF LOMBARD )

SCHOOL DISTRICT 44, a/k/a Lombard SD )

44, )

)

Defendant. )

MEMORANDUM OPINION

CHARLES P. KOCORAS, District Judge:

Before the Court is Defendant Lombard School District 44’s (the “District”)

Motion to Dismiss Plaintiff Gerzine Spence’s Complaint. For the following reasons,

the Court grants the Motion in part.

BACKGROUND

For the purposes of this Motion, the Court accepts as true the following facts

from the Complaint. Alam v. Miller Brewing Co., 709 F.3d 662, 665–66 (7th Cir. 2013).

All reasonable inferences are drawn in Spence’s favor. League of Women Voters of

Chi. v. City of Chicago, 757 F.3d 722, 724 (7th Cir. 2014).

Plaintiff Spence is the mother of SM, a minor and a former student at one of the

District’s elementary schools. SM was one of the few African American students at her

school. A majority of the students at the school were White and Hispanic. A majority

of the school’s teachers were also White.

SM alleges a multitude of racist acts by her classmates and school officials.

Beginning when SM was in fourth grade, Hispanic students on her school bus

repeatedly called SM a Spanish racial slur that means “black woman” or “dark-skinned

person.” SM pleaded for the students to stop, but they did not. She eventually became

fed up and pretended to grab one of the students harassing her, though she says she did

not touch the student. After this incident, SM was called to the school principal’s office.

The principal, Yesenia Vazquez, is Hispanic. SM explained to Vazquez that the

students were calling her a racial slur and that she begged for them to stop. Vazquez

dismissed the use of the racial slur and told SM to “push through it.”

After meeting with SM, Vazquez called Spence and claimed to have a video of

the incident that showed SM choking a student. After Spence asked to see the video,

Vazquez backtracked and said the video was not clear and did not actually show SM

choking someone. Vazquez also informed Spence that she told SM to “push though”

being called racial slurs. Spence and SM say that the District did not discipline any

student for calling SM the racial slur.

In fifth grade, non-Black students began singing songs with the “n-word” to SM.

SM repeatedly objected to the songs to these classmates. SM reported the classmates

to one of her teachers, Mr. Melton, who is a White man. Spence says that Melton did

not investigate or discipline anyone for singing the songs. Spence then complained

about the songs and Melton’s inaction to the District and Vazquez. However, the

District and Vazquez also did not investigate or discipline anyone.

Because the harassment continued, SM and another student wrote a note to one

of the students tormenting her that said “stop saying bad words” and put it in their

locker. SM admitted to writing the locker note, and Melton punished her by prohibiting

SM from being in the section of the school where the locker was located. As a result,

SM had to carry her personal belongings with her to a District-sponsored after school

educational program. SM was also punished by being forced to miss recess.

SM asked Melton why he punished her for the locker note but did not punish

anyone for using racial slurs. SM also accused Melton of being racist because she was

subjected to more severe discipline than non-Black students. In response, Melton

publicly intimidated SM during a classroom activity. The activity involved a student

being singled-out while the other students took turns saying things they liked about the

subject student. When it was SM’s turn, SM says that Melton sarcastically commended

SM for her “courage” to call him racist despite a list of factors which he felt showed he

is not racist, including the fact that he has a Black friend.

After this incident, Melton continued to discipline SM more harshly than non-

Black students by, for example, sending her into the hallway and remotely disabling

SM’s computer. Additionally, Spence says that she repeatedly requested access to a

digital platform intended to be shared with parents to keep them informed of their

child’s assignments and progress, but he withheld granting access. SM says she

witnessed Melton deleting Spence’s name from the platform while saying “Yup, she’s

gone.”

SM was also subjected to racial harassment by her orchestra instructor, Ms.

Drafta, a White woman. For example, Drafta questioned whether Spence was truthfully

signing a parental instrument practice timesheet and accused Spence and SM of

fabricating it. Additionally, SM says Drafta discouraged SM’s education growth,

asking questions like “are you sure you still want to play?”

The alleged results of these incidents of harassment are severe. During one after

school orchestra practice, SM was so distraught and embarrassed that she hid in the

bathroom for the duration of the practice. SM has also suffered distressed breathing,

anxiety, and other emotional damage. Spence and SM repeatedly complained of the

racism, but the District did nothing. Spence says that she and SM were therefore forced

to move into a new school district.

Based on these events, Spence filed a six count Complaint alleging: (1) a

violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. (“Title

VI”) (Count I); (2) retaliation under Title VI (Count II); (3) a violation of the Equal

Protection Clause of the Fourteenth Amendment under 42 U.S.C. § 1983 (Count III);

(4) a violation of the Illinois Civil Rights Act of 2003, 740 ILCS § 23/5 (Count IV); (5)

retaliation under the Illinois Civil Rights Act (“ICRA”) (Count V); and (6) state-law

negligent supervision (Count VI).

LEGAL STANDARD

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the

sufficiency of the complaint, not the merits of the case.” McReynolds v. Merrill Lynch

& Co., 694 F.3d 873, 878 (7th Cir. 2012). The allegations in the complaint must set

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

relief.” Fed. R. Civ. P. 8(a)(2). A plaintiff need not provide detailed factual allegations,

but it must provide enough factual support to raise its right to relief above a speculative

level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

A claim must be facially plausible, meaning that the pleadings must

“allow . . . the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The claim must be

described “in sufficient detail to give the defendant ‘fair notice of what the . . . claim is

and the grounds upon which it rests.’” E.E.O.C. v. Concentra Health Servs.,

Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555).

“[T]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements,” are insufficient to withstand a 12(b)(6) motion to dismiss.

Iqbal, 556 U.S. at 678.

DISCUSSION

The District argues that Spence’s claims must be dismissed “in toto and with

prejudice.” We address each Count in turn.

I. Count I

To state a claim under Title VI, a plaintiff must allege that: (1) they were

discriminated against on the grounds of race; and (2) the defendant is a recipient of

federal funds. Irving v. Pui Tak Center, 2013 WL 2251757, at *2 (N.D. Ill. 2013).

While “whether or not an entity receives federal funds is no longer the sine qua non of

a Title VI action,” id. at *5, a plaintiff still must identify the program or activity that

receives the federal funds, Shebley v. United Continental Holdings, Inc., 2020 WL

2836796, at *5 (N.D. Ill. 2020). Spence merely alleges that the District receives federal

funds, without identifying the program or activity. “Conclusory allegations of such

assistance are not enough to state a claim.” Id.

We therefore dismiss Spence’s Title VI claim without prejudice and with leave

to amend. Spence can presumably identify the program or activity receiving federal

funds, which is likely an educational program receiving Title I funds, and SM is

presumably an intended beneficiary of such funds. See id. at *6 (a plaintiff must allege

that they are an intended beneficiary of the federal funds to have Article III standing);

see also Afogho v. Illinois Cent. Sch. Dist. 104 Bd. of Educ., 421 F. Supp. 3d 585, 593

(S.D. Ill. 2019) (students are intended beneficiaries of federal school funding).

Additionally, we do not believe the District’s remaining arguments make

amendment futile. For example, the District broadly argues that it cannot be liable for

its employees’ actions. The District misses the standard, though. The District can be

liable if an employee “who at a minimum has authority to institute corrective measures

had actual knowledge of and was deliberately indifferent to the discriminatory conduct

of Defendants’ employees.” Shebley v. United Cont'l Holdings, Inc., 2020 WL

2836796, at *6 (N.D. Ill. 2020) (cleaned up). Spence alleges just that—Vazquez, the

school principal, had actual knowledge of the actions of her classmates, Melton, and

Drafta, but refused to take any corrective measures, and, in fact, discriminated against

SM herself.

The District also says that Count I should be dismissed to the extent it alleges a

claim of a hostile educational environment. To state a claim for a hostile educational

environment under Title VI, Spence must allege that the alleged harassment was “severe

of pervasive enough to deprive [SM] of access to educational benefits.” Qualls v.

Cunningham, 183 Fed. App’x 564, 567 (7th Cir. 2006). Spence alleges that the racial

harassment by SM’s classmates and the school’s staff was so severe that she had to pull

SM from the school and move to a new district. Such allegations could lead to a

successful hostile educational environment claim. See N.K. v. St. Mary’s Springs

Academy of Fond Du Lac Wi., Inc., 965 F. Supp. 2d 1025, 1034 (E.D. Wis. 2013)

(denying summary judgment on a hostile educational environment claim based on

similar facts).

Accordingly, the motion is granted with respect to the federal funds argument.

The motion is denied with respect to the remaining arguments.

II. Count II

In Count II, Spence alleges retaliation in violation of Title VI. The District first

argues that there is no cause of action for retaliation under Title VI. The District is

incorrect. See Weiler v. Vill. of Oak Lawn, 86 F. Supp. 3d 874, 889 (N.D. Ill. 2015)

(“Every court to consider the question” since Jackson v. Birmingham Bd. of Educ, 554

U.S. 167 (2005) “has concluded that Title VI encompasses a claim for retaliation,

because Title IX and Title VI are interpreted in parallel.”).

The District next argues that Spence fails to allege a materially adverse

educational action. To be “materially adverse,” an action must be one that would

“dissuade a reasonable person from engaging in protected activity.” Henry v.

Milwaukee Cnty, 539 F.3d 573, 586 (7th Cir. 2008). The actions, though, must be more

than “petty slights or minor annoyances.” Id.

The District focuses on SM having to sit out recess and having to take her

belongings to an after-school program. The District says that these punishments are

trivial because schools can punish students for misbehaving. Thus, the District

concludes, “[t]he actions of which Plaintiff complains first are not ‘adverse,’ but are not

‘materially adverse’ as a matter of law.” Dkt. # 8, pg. 6.

But the District conspicuously leaves out pertinent facts and the surrounding

circumstances. SM wasn’t just forced to miss recess and carry her books for

misbehaving. Instead, SM complained about a highly offensive, dehumanizing racial

slur being directed at her only to be further dehumanized by being banned from an entire

section of the school. Being treated as a second-class citizen by SM’s classmates and

school administration forced Spence and SM to move out of the District’s boundaries.

We believe that a reasonable person could certainly be dissuaded by this. The Motion

to Dismiss Count II is therefore denied.

III. Count III

In Count III, Spence alleges a claim of discrimination under the Fourteenth

Amendment’s Equal Protection Clause. To state a claim under the Equal Protection

Clause, a plaintiff must allege that: (1) they are a member of a protected class, (2) they

are otherwise similarly situated to people outside the protected class, and (3) they were

treated different from people outside the protected class. Brown v. Budz, 398 F.3d 904,

916 (7th Cir. 2005). The Seventh Circuit has stressed the liberal pleading requirements

for Equal Protection claims. Id.

Here, Spence alleges that SM, a Black student, was subjected to punishments for

complaining about racial harassment, while non-Black students were never investigated

or punished for their actions—like calling SM racial slurs. Such allegations are

sufficient at this stage. Accordingly, the motion to dismiss Count III is denied.

IV. Counts IV, V, and VI

Finally, the District argues that Spence’s state law claims are barred by Section

2-201 of the Illinois Local Government and Governmental Employees Tort Immunity

Act, 745 ILCS § 10/2-201 (the “Tort Immunity Act”). Section 2-201 grants immunity

to a governmental defendant if “(1) the employee held either a position involving the

determination of policy or a position involving the exercise of discretion and (2) the

employee engaged in both the determination of policy and the exercise of discretion

when performing the act or omission from which the plaintiff’s injury resulted.”

Andrews v. Metro. Water Reclamation Dist. Of Greater Chi., 2019 IL 124283, ¶ 27

(emphasis in original). “Determining whether an act is discretionary should be made

on a case-by-case basis depending on the particular facts and circumstances.” Id. at ¶

28. “[T]he public entity or employee asserting an immunity defense bears the burden

of proving it is entitled to that immunity.” Id. at ¶ 23.

This statutory immunity, though, is an affirmative defense, see id., and the

Seventh Circuit has cautioned against addressing affirmative defenses on a motion to

dismiss, see Gunn v. Continental Casualty Co., 968 F.3d 802, 806 (7th Cir. 2020) (“the

appropriate vehicle for resolving an affirmative defense is a motion for judgment on the

pleadings under Rule 12(c) [or motion for summary judgment], not a Rule 12(b)(6)

motion” because it “is necessary to allocate correctly the burdens of pleading and

proof”). The Court may only grant a motion to dismiss based on an affirmative defense

if “the allegations of the complaint itself set forth everything necessary to satisfy the

affirmative defense.” Brooks v. Ross, 578 F.3d 574, 579 (7th Cir. 2009).

Here, the District argues, without authority, that the Tort Immunity Act applies

to claims brought under the ICRA. But this conclusion is unclear. It is unsettled

whether the Immunity Act “categorically excludes actions that do not sound in tort.”

Society of American Bosnians and Herzegovinians v. City of Des Plaines, 2017 WL

748528, at *14 (N.D. Ill 2017). And, as Judge Kennelly noted, “Allowing [a state

government defendant] to avoid damages liability for alleged discrimination on the

ground that it resulted from a discretionary policy decision within the meaning of

section 2-201 of the Tort Immunity Act would appear to undermine the very purpose

of ICRA.” Brown v. Cook Cty., 2018 WL 3122174, at *11 (N.D. IIL. 2018).

Nevertheless, it is premature for the Court to determine whether the District has met it

burden of establishing immunity for Spence’s state law claims because that

determination necessarily requires facts outside the complaint. See Sterling v. Bd. of

Educ. Of Evanston Twp. High School Dist. 202, 2021 WL 809763, at *9 (N.D. Ill. 2021)

(declining to apply immunity on a motion to dismiss because it is “a fact-specific

inquiry” and “the Court needs more facts to make such a decision’).

The District does not otherwise challenge the sufficiency of Spence’s state law

claims. The Motion to Dismiss Counts IV, V, and VI is therefore denied.

CONCLUSION

For the reasons stated above, the District’s Motion to Dismiss is granted in part.

Count I is dismissed without prejudice. Spence is given 14 days to amend Count I. The

Motion is denied for the remaining Counts. Status remains set for July 15, 2021, at 9:50

a.m. It is so ordered.

Dated: 07/14/2021 Cha Ore Locate a.

Charles P. Kocoras

United States District Judge

1]