Doe v. School District U-46

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

John Doe and Jane Doe, )

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Plaintiffs, )

)

)

v. ) No. 20-cv-4273

)

)

School District U-46, et al. )

)

Defendants. )

)

Memorandum Opinion and Order

Plaintiffs John Doe and Jane Doe bring this action on behalf

of their son, James Doe, a former student at Hillcrest Elementary

School located in School District U-46 in Elgin, Illinois.

Plaintiffs allege that in 2018, during James Doe’s kindergarten

year, he was subjected to bullying, physical assaults, and sexual

assaults by four student offenders. Plaintiffs sued the school

district and board of education, several teachers and

administrators, and the student offenders and their guardians,

alleging violations of substantive due process under 42 U.S.C.

§ 1983, violations of Title IX, willful and wanton misconduct, and

various other state-law torts. The following defendants have now

moved to dismiss the claims against them: School District U-46,

School District U-46 Board of Education, and

educators/administrators Tony Sanders, Teresa Winters, Jeffrey

Prowell, Nelly Gonzalez, Steve Johnson, and Gina Dawkins

(collectively, “Defendants”). For the foregoing reasons, their

motion to dismiss [20] is granted in part and denied in part.

I.

In reviewing the sufficiency of a complaint pursuant to a

motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),

I “accept all well pled facts as true and draw all permissible

inferences in favor of the plaintiff.” Agnew v. Nat’l Collegiate

Athletic Ass’n, 683 F.3d 328, 334 (7th Cir. 2012). To survive a

motion to dismiss, the complaint must state a claim “that is

plausible on its face” after conclusory allegations are

disregarded. W. Bend Mut. Ins. Co. v. Schumacher, 844 F.3d 670,

675 (7th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678–

79 (2009)).

During the 2018-2019 school year, James Doe was a kindergarten

student at Hillcrest Elementary School (“Hillcrest”) in the U-46

school district. ECF No. 1 ¶ 24. From August through December

2018, he was also enrolled in a before- and after-school childcare

program called the “Supervised Activities for Children of Employed

Parents” or “SAFE” program, which took place at Highland Elementary

School (“Highland”), another school located within the U-46 school

district. Id. ¶¶ 25-27. James Doe was transported from the SAFE

program at Highland to Hillcrest and back again each day by a

school bus owned and operated by the U-46 school district. Id.

¶¶ 29-30.

On or about August 27, 2018, shortly after the start of the

school year, James Doe began to experience bullying from Student

Offender 1, a student in James Doe’s class. Id. ¶¶ 64-65.

Specifically, Student Offender 1 pushed and punched James Doe on

more than one occasion. Id. ¶ 66. On September 6, 2018, James

Doe’s father, John Doe, sent an email to James Doe’s teacher at

Hillcrest, Nelly Gonzalez, informing her of the bullying incidents

with Student Offender 1. Id. ¶ 69. Ms. Gonzalez responded that

James Doe had mentioned that week that Student Offender 1 had hit

him, and she had spoken to both boys, but she “did not think much

of it.” Id. ¶ 72. She said she would speak to the boys again.

Id.

In October, Student Offender 1’s bullying of James Doe

escalated, such that it now included kicking and persistent name

calling. Id. ¶ 88. Student Offender 2, an older boy in sixth

grade, also began bullying James Doe. Id. ¶ 90-91. On one

occasion on October 5, Student Offender 2 took James Doe’s shoes

off and threw them down the hallway during the SAFE program. Id.

¶ 91. On October 12, 2018, John Doe again contacted Ms. Gonzalez,

leaving a voicemail informing her of the continued incidents of

bullying involving Student Offender 1 and commencement of bullying

by other students including Student Offender 2. Id. ¶ 92. Ms.

Gonzalez responded, via email, that she had informed the MTSS

coordinator and the physical education teacher of the situation,

and that the MTSS coordinator would talk with the boys. Id. ¶ 94.

On October 16, 2018, while travelling on the school bus,

Student Offender 1 bullied James Doe once again, taunting him by

announcing that his “butt smell[ed] bad” and he wore “baby

underwear.” Id. ¶ 99. James Doe sought help from an older female

student, Student Offender 3. Id. ¶ 102. Student Offender 3 said

that she would only help James Doe if he paid her. Id. ¶ 103.

James Doe was carrying two dollars, which was to be used for a

fundraiser at the SAFE program, so he gave Student Offender 3 one

of the two dollars. Id. ¶ 100, 104. Student Offender 3 grabbed

Student Offender 1 by the legs and told him to “stop bothering”

James Doe. Id. ¶ 104. Student Offender 2, who was acting as a

student patrol guard on the bus and had witnessed the exchange

with Student Offender 3, also offered his help to James Doe if he

gave him his other dollar. Id. ¶ 105. Student Offender 2 accepted

the dollar, but did not intervene. Id. ¶ 106.

The next day, John Doe called Theresa Winters, the principal

at Hillcrest, to inform her of the ongoing bullying James Doe was

experiencing. Id. ¶ 107. Principal Winters informed John Doe

that she would personally take care of the situation, that she was

going to require all students involved to be spoken to, that all

the students’ parents would be required to meet with her

personally, and that James Doe would not be bullied again. Id.

¶ 111. Principal Winters subsequently informed John and Jane Doe

that Student Offender 1’s and Student Offender 3’s parents had

been spoken to, and that Student Offender 2 had been suspended

from patrol duties for a week. Id. ¶ 112. Principal Winters also

directed that James Doe be moved to the front of the school bus,

away from the “older kids.” Id. ¶ 114. However, because Student

Offender 2 was a student patrol, he was often one of the last

students to enter the bus, and often sat near the front. Id.

¶ 115. Accordingly, Plaintiffs allege that this intervention had

the opposite of the intended effect. Id. ¶ 116.

From October 29, 2018 through December 14, 2018, James Doe

was sexually assaulted daily on the bus at the hands of Student

Offender 2 and Student Offender 4, a second-grade student who was

friends with and sat near Student Offender 2 on the bus. Id.

¶¶ 117-18. Each day, Student Offender 2 and Student Offender 4

would come to the seat where James Doe was sitting, “take turns

positioning themselves such that one of them would block the school

bus driver’s view of what was occurring on the bus,” and engage in

various sexually harassing and bullying activities. Id. ¶¶ 119-

121. These activities included exposing their penises and buttocks

to James Doe, forcing James Doe to touch their penises, forcing

James Doe to remove his pants to expose his underwear and then

making fun of the underwear he was wearing, and touching James

Doe’s penis and making fun of it. Id. ¶ 121.

On the evening of December 14, 2018, James Doe told his

mother, Jane Doe, about the bullying and sexual assaults he had

been experiencing on the bus each day. Id. ¶¶ 123-24. James Doe

said he had not said anything to his mother earlier because “he

was scared, and . . . Student Offender 4 had told James Doe that

Student Offender 4 would continue to do the things he was doing to

James Doe even if James Doe told someone about it.” Id. ¶ 125.

On Monday, December 17, John, Jane, and James Doe met with

Principal Winters and discussed the bullying and sexual assault.

Id. ¶ 127. Ms. Winters said that “her preliminary plan of action

was to talk to Student Offender 2 and Student Offender 4, remove

Student Offender 2 as student patrol, [and] require the parents

for both Student Offender 2 and Student Offender 4 to pick up the

boys at school that day so she could talk directly to their

parents.” Id. ¶ 132. She also said that she would ask the U-46

Transportation Department for the video from James Doe’s December

14, 2018 bus rides. Id. Later that day, Ms. Gonzalez phoned Jane

Doe to let her know that Principal Winters had informed her of the

assaults, and added that James Doe had recently been acting “more

clingy” with her. Id. ¶¶ 134-35.

On December 20, John Doe had a follow-up telephone call with

Principal Winters. Id. ¶ 140. Principal Winters said that she

had seen the video of the December 14, 2018 bus rides, and that

she would request copies of all videos from October 29 through

December 14. Id. ¶¶ 141-42. Plaintiffs have since requested to

see those videos, but their requests have been denied. Id. ¶ 143-

44. Principal Winters also said that Student Offender 2 and

Student Offender 4 admitted to her that they took part in the

conduct James Doe described. Id. ¶ 145. She told John Doe that

“Student Offender 2 had been permanently removed as a patrol, was

removed from the school bus, and was removed from the SAFE Program

for the rest of [the] school year,” and “Student Offender 4 had

been removed from the school bus and the SAFE program for 1 week.”

Id. ¶¶ 146-47.

When school resumed in January 2019, the Does removed James

Doe from the SAFE program and enrolled him in a private childcare

program that was twice the cost. Id. ¶¶ 150-51. Principal Winters

told John Doe that she would be in James Doe’s classroom several

times a week to check on him. Id. ¶ 153. The Does also requested

that James Doe see Hillcrest’s social worker, Gina Dawkins, on a

regular basis. Id. ¶ 156. However, after two weeks, Ms. Dawkins

informed the Does that James Doe was doing very well and she did

not need to see him anymore. Id. ¶ 158. Plaintiffs allege that

contrary to Ms. Dawkins’s representation, James Doe’s behavior had

changed dramatically as a result of the trauma he suffered and he

needed continued support. Id. ¶¶ 159-60.

On January 17, 2019, James Doe went to the nurse’s office,

and Student Offender 2 entered the office and sat down next to

him. Id. ¶¶ 164-65, 167. Student Offender 2 “placed his hand on

James Doe’s knee and massaged it making James Doe extremely

uncomfortable.” Id. ¶ 168.

Plaintiffs also allege that in May 2019, the Does were

approached by Adrianna Flores, who said that her son had also been

the victim of bullying and sexual assaults perpetrated by Student

Offender 2 and Student Offender 4 in Fall 2018 and Winter 2019,

and that she had reported the incidents to Principal Winters in

January 2019. Id. ¶¶ 169-70, 172. Ms. Flores said that Principal

Winters denied the allegations and said that her son “was merely

adopting James Doe’s experience as his own,” and also forbade Ms.

Flores from discussing her son’s experience with the Does. Id.

¶¶ 173-74. In October 2019, Ms. Flores reported to the Does that

after a “fight” with the school district, her son had been allowed

to transfer schools. Id. ¶¶ 180-81.

At some point, the Does moved, and James Doe is now in school

in another district. Id. ¶ 183.

II.

Plaintiffs sued both School District U-46 and the School

District U-46 Board of Education. As a preliminary matter,

Defendants argue that the Board of Education is the only legal

entity capable of being sued, so the claims against the School

District should be dismissed. ECF No. 21 at 2. Relying on 105

Ill. Comp. Stat. 5/10-2, which provides that a school district’s

board of education has the capacity to sue or be sued, “Illinois

courts have held that while a school board is a proper defendant,

a school district is not, unless another provision of the school

code or another statute specifically authorizes a school district

to sue or be sued.” Smoler v. Bd. of Educ. for W. Northfield Sch.

Dist. #31, No. 20-cv-00493, 2021 WL 843454, at *2-3 (N.D. Ill.

Mar. 5, 2021); accord Snow v. J. Sterling Morton High Sch. Dist.

201, No. 16-cv-2685, 2016 WL 5391222, at *2 (N.D. Ill. Sept. 27,

2016). Plaintiffs do not argue that any statute specifically

authorizes the instant suit against the district. Accordingly,

the counts asserted against School District U-46 are dismissed.1

III.

Defendants move to dismiss Counts II-III and Counts V-IX,

which assert substantive-due-process claims under 42 U.S.C. § 1983

against the School District U-46 Board of Education; Tony Sanders,

Superintendent of School District U-46; Jeffrey Prowell, the U-46

Director of Transportation; Theresa Winters, Principal of

Hillcrest; Nelly Gonzalez, James Doe’s teacher at Hillcrest; Steve

Johnson, Principal of Highland; and Gina Dawkins, a social worker

1 Counts I, XII, and XIII are accordingly dismissed in their

entirety. Counts XXV-XL are dismissed as asserted against School

District U-46.

at Hillcrest. Plaintiff sues each of the non-entity defendants

both in their individual and official capacities. As a preliminary

matter, official-capacity suits are simply “another way of

pleading an action against an entity of which an officer is an

agent.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55

(1978). Accordingly, because the U-46 School Board has also been

sued, any official-capacity claims are duplicative and are thus

dismissed. See, e.g., Selmani v. Vill. of Bartlett, 515 F. Supp.

3d 882, 2021 WL 271235, at *4 (N.D. Ill. 2021).

“In order to proceed on [a] § 1983 claim, [a plaintiff]

need[s] to show that [defendants] acted under color of state law

to deprive [him] of a constitutional right.” Wudtke v. Davel, 128

F.3d 1057, 1062 (7th Cir. 1997). The constitutional right on which

Plaintiffs rely is the substantive-due-process component of the

Fourteenth Amendment, which provides that no state shall “deprive

any person of life, liberty, or property, without due process of

law.” U.S. Const. amend. XIV, § 1. “In contrast with procedural

due process, substantive due process ‘bars certain arbitrary,

wrongful government actions “regardless of the procedures used to

implement them.”’” Doe v. Sch. Dist. 214, No. 16-cv-7642, 2021 WL

1239200, at *7 (N.D. Ill. Apr. 2, 2021) (citing Zinermon v. Burch,

494 U.S. 113, 125 (1990)). But the list of protected fundamental

rights and liberty interests is “a short one.” Sung Park v. Ind.

Univ. Sch. of Dentistry, 692 F.3d 828, 832 (7th Cir. 2012).

Plaintiffs assert that James Doe was deprived of two interests

protected by substantive due process: (1) “a property interest in

a K-12 public education,” and (2) “a liberty interest in [James

Doe’s] own physical safety.” ECF No. 37 at 3. James Doe

“undoubtedly had a liberty interest in his own physical safety.”

Stevens v. Umsted, 131 F.3d 697, 701 (7th Cir. 1997). It is also

true that “elementary school students . . . have a property

interest in their public education because state law entitles them

to receive one.” Doe v. Purdue Univ., 928 F.3d 652, 660 (7th Cir.

2019). Plaintiffs do not assert, however, that Defendants

personally deprived James Doe of those interests--rather, they

assert that James Doe was deprived of liberty and property because

Defendants failed to protect him from the bullying and harassing

acts of the Student Offenders. “But nothing in the language of

the Due Process Clause itself requires the State to protect the

life, liberty, and property of its citizens against invasion by

private actors. . . . Its purpose was to protect the people from

the State, not to ensure that the State protected them from each

other.” DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489

U.S. 189, 195-96 (1989). Therefore, “the Due Process Clauses

generally confer no affirmative right to government aid, even when

such aid may be necessary to secure life, liberty, or property

interests of which the government itself may not deprive the

individual.” Id. at 196.

There are two exceptions to this general rule, however. “The

first obligates the state to protect individuals with whom it has

a ‘special relationship,’ such as a custodial relationship that

cuts off alternative avenues of aid. . . . The other is the

‘state-created danger exception,’ which applies when a state

actor’s conduct ‘creates, or substantially contributes to the

creation of, a danger or renders citizens more vulnerable to a

danger than they otherwise would have been.’” D.S. v. E. Porter

Cnty. Sch. Corp., 799 F.3d 793, 798 (7th Cir. 2015) (citations

omitted). Plaintiffs argue that both exceptions apply here.

The custodial relationship exception is easily dispensed

with. For that exception to apply, “the individual must be

involuntarily taken into custody by the state.” Stevens, 131 F.3d

at 702. “The affirmative duty to protect arises not from the

State’s knowledge of the individual’s predicament or from its

expressions of intent to help him, but from the limitation which

it has imposed on his freedom to act on his own behalf.” DeShaney,

489 U.S. at 200. Here, the state never took custody of James Doe-

-rather, he was voluntarily admitted to Defendants’ care.

“Although [James Doe] could not have packed his bags and left the

school of his own volition, [the Does], as [James Doe’s] parent[s]

and guardian[s], could have requested that [James Doe] be

discharged at any time.” Stevens, 131 F.3d at 703. Accordingly,

a child in public school has not been “rendered . . . so helpless

that an affirmative constitutional duty to protect arises.” J.O.

v. Alton Cmty. Unit Sch. Dist. 11, 909 F.2d 267, 272 (7th Cir.

1990). The custody exception does not apply.

Plaintiffs also argue that the state-created danger exception

is applicable here. “To prevail under a state-created danger

theory, [Plaintiffs] must show three things: (1) that the State

. . . by its affirmative acts, created or increased a danger that

[James Doe] faced; (2) that [Defendants’] failure to protect [James

Doe] from danger was the proximate cause of [his] injury; and (3)

that [Defendants’] failure to protect [James Doe] shocks the

conscience.” D.S., 799 F.3d at 798. Plaintiffs falter at the

first element--they fail to allege that Defendants engaged in an

affirmative act that created or increased the danger to James Doe.

“[A] school’s inaction or inadequate response to bullying does not

‘increase the danger’ under a state-created danger due process

theory.” Doe v. Evergreen Park Elementary Sch. Dist. 124, No. 17-

CV-3774, 2017 WL 6731867, at *6 (N.D. Ill. Dec. 29, 2017) (St.

Eve, J.); accord Nabozny v. Podlesny, 92 F.3d 446, 460 (7th Cir.

1996); Spruill ex rel. D.N.S. v. Bd. of Educ., No. 20 C 4927, 2021

WL 1387949, at *3 (N.D. Ill. Apr. 13, 2021).

Plaintiffs counter that Principal Winters’s decision to move

James Doe to the front of the bus was an affirmative action that

placed him in closer proximity to Student Offender 2, and therefore

increased his danger. ECF No. 37 at 9-10. But that action alone

is insufficient. In D.S. v. East Porter County School Corp., a

student brought a substantive-due-process claim against her school

in connection with bullying she experienced at the hands of other

students. Despite allegations that school personnel participated

in or were complicit in the bullying incidents, such as by laughing

when her classmates moved her desk as a prank or by forcing her to

participate in gym class while she was injured, the Seventh Circuit

rejected application of the state-created danger exception because

plaintiffs had not shown “that her teachers and coaches instigated,

created, or increased the bullying she experienced in school.”

799 F.3d at 798-99. Here, Plaintiffs have alleged significantly

less affirmative conduct on the part of Principal Winters.

Moreover, the Seventh Circuit has cautioned that the

exception’s requirement that the affirmative action “create or

increase” danger “must not be interpreted so broadly as to erase

the essential distinction between endangering and failing to

protect.” Doe v. Vill. of Arlington Heights, 782 F.3d 911, 917

(7th Cir. 2015) (citation omitted). Generally, for the exception

to apply, the victim must be “safe before the state intervenes and

unsafe afterward.” Sandage v. Bd. of Comm’rs of Vanderburgh Cnty.,

548 F.3d 595, 598 (7th Cir. 2008); see also Spruill, 2021 WL

1387949, at *5. Here, James Doe alleges that he was bullied by

Student Offender 2 on the bus both before and after he was moved

to the front--accordingly, it was not Principal Winters’s

intervention that rendered him unsafe. See ECF No. 1 ¶¶ 105-06,

114, 117. The state-created danger exception does not apply.

Because Plaintiffs have not alleged an underlying

constitutional violation, they fail to state a claim under 42

U.S.C. § 1983. Counts II-III and Counts V-IX are dismissed.

IV.

Count XIV asserts a claim against the District U-46 Board of

Education under Title IX, 20 U.S.C. § 1681 et seq. In Davis ex

rel. LaShonda D. v. Monroe County Board of Education, the Supreme

Court established that school boards who receive federal funding

can be sued by victims of student-on-student sexual harassment

under Title IX. 526 U.S. 629, 648. Schools are responsible for

one student’s sexual harassment of another where three conditions

are met: “First, the school or school officials must have had

actual knowledge of sex-based harassment. . . . Second, the

harassment must have been ‘so severe, pervasive, and objectively

offensive that it can be said to deprive the victims of access to

the educational opportunities or benefits provided by the school.’

. . . Third, the school must have been deliberately indifferent

to the harassment.” Jauquet v. Green Bay Area Catholic Educ.,

Inc., 996 F.3d 802, 808 (7th Cir. 2021).

Defendants do not dispute that the alleged harassment

complained of was severe and pervasive enough to satisfy the second

element. See ECF No. 37 at 14. There is also no dispute that

Defendants had notice of the sex-based harassment James Doe faced.

The parties do dispute, however, when Defendants had that notice.

The timing of the notice is important because “[o]nce school

officials have actual notice of sexual harassment, Davis imposes

a duty to act.” Gabrielle M. v. Park Forest-Chi. Heights, Ill.

Sch. Dist. 163, 315 F.3d 817, 824 (7th Cir. 2003).

The relevant inquiry under Title IX is notice of sex-based

harassment; notice of general bullying behavior does not trigger

an obligation under Davis. See Evergreen, 2017 WL 6731867, at *4-

5. “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).

Defendants argue that they had notice of the sexual harassment

James Doe experienced at the hands of Student Offenders 2 and 4 on

December 17, 2018, when the Does reported the incidents to

Principal Winters. Before that time, James Doe was “scared” to

talk about the harassment, and had not reported it, even to his

parents. ECF No. 1 ¶ 125.

Plaintiffs counter that the complaint supports a reasonable

inference that the bus driver observed the sexual harassment before

that time. But Plaintiffs specifically alleged that the Student

Offenders “would take turns positioning themselves such that one

of them would block the school bus driver’s view of what was

occurring on the bus.” Id. ¶ 120. Plaintiffs argue they alleged

that the children on the bus were subject to “Rider Rules” which

prohibited children from leaving their seats, see id. ¶ 49--

accordingly, they argue, it is plausible that the bus driver

noticed Student Offenders 2 and 4 leaving their seats to harass

James Doe. But even if the bus driver did notice the students

moving around, that does not support an inference that he also

observed the harassment, particularly given how the Student

Offenders positioned their bodies to block the driver’s view.

Plaintiffs also argue that the administrators’ failure to give

them copies of the bus videos supports an inference that those

videos show the bus driver witnessing the harassment and failing

to intervene. But there are myriad other reasons that the

administrators may not have wanted to share those videos with

Plaintiffs. I conclude that Plaintiffs failed to plausibly allege

Defendants had notice of the sexual harassment prior to December

17, 2018.

Defendants argue that assuming they had notice as of December

17, Plaintiffs have failed to allege deliberate indifference. “To

ensure that school administrators continue to enjoy the

flexibility they require in making disciplinary decisions, the

school will not be held liable unless its response to harassment

is clearly unreasonable in light of the known circumstances.”

Jauquet, 996 F.3d at 808 (citing Johnson v. Ne. Sch. Corp., 972

F.3d 905, 911-12 (7th Cir. 2020)). This is a high bar; allowing

peer-on-peer sexual harassment suits under Title IX “does not mean

that recipients [of federal funds] can avoid liability only by

purging their schools of actionable peer harassment or that

administrators must engage in particular disciplinary action,” nor

does it allow victims “to make particular remedial demands.”

Davis, 526 U.S. at 648. Rather, “[C]ourts should refrain from

second-guessing disciplinary decisions made by school

administrators.” Id. Additionally, “there is no reason why

courts, on a motion to dismiss, . . . could not identify a response

as not ‘clearly unreasonable’ as a matter of law.” Id. at 649.

Here, Defendants’ response to the December 17 report of

harassment was not clearly unreasonable. Principal Winters

promptly spoke with Student Offenders 2 and 4 and their parents,

and when they admitted their part in the harassment, she

disciplined them, and took steps to keep them away from James Doe.

ECF No. 1 ¶¶ 132, 145-47. Specifically, “Student Offender 2 [was]

permanently removed as a patrol, was removed from the school bus,

and was removed from the SAFE Program for the rest of [the] school

year,” and “Student Offender 4 [was] removed from the school bus

and the SAFE program for 1 week.” Id. ¶¶ 146-47. Principal

Winters also promptly viewed the bus video from December 14, 2018,

and requested the videos from the other days on which James Doe

said he was harassed. Id. ¶¶ 132, 141-42. In addition, she

personally observed James Doe’s classes for several days after he

returned to school in January, and the school provided James Doe

with approximately two weeks of counseling. Id. ¶¶ 153, 156, 158.

“This is not a situation where the school ‘learned of a problem

and did nothing.’” Jauquet, 996 F.3d at 809 (citing Johnson, 972

F.3d at 912). The school’s response “demonstrate[d] that the

school was not deliberately indifferent to [James Doe’s]

harassment.” Id. The Does may feel that the school’s

interventions were insufficient, or even negligent, but “[a]

negligent response is not unreasonable,” and courts generally may

not “second guess a school’s disciplinary decisions.” Johnson,

972 F.3d at 912.

Plaintiffs argue that they alleged Defendants tried to “cover

up” Student Offenders 2 and 4’s harassing conduct by forbidding

Ms. Flores from discussing her child’s alleged harassment with the

Does. ECF No. 37 at 18. But assuming that allegation is true, it

tends to show deliberate indifference to Ms. Flores’s child’s

harassment, not to James Doe’s. “To establish a Title IX

discrimination claim arising from student-on-student sexual

assault or harassment, . . . the school’s deliberate indifference

must have caused the plaintiff to undergo harassment or make that

student vulnerable to it.” Pogorzelska v. VanderCook Coll. of

Music, 442 F. Supp. 3d 1054, 1062 (N.D. Ill. 2020) (emphasis

added); see also Wills v. Brown Univ., 184 F.3d 20, 27 (1st Cir.

1999) (upholding exclusion of evidence of university response to

professor’s subsequent harassing behavior because it had “nothing

to do with” the question of University’s alleged deliberate

indifference to plaintiff’s earlier harassment). Ms. Flores did

not report her child’s harassment to the school until after James

Doe was sexually harassed on the school bus, see ECF No. 1 ¶ 172,

and there is no allegation that Defendants’ response to Ms.

Flores’s child’s harassment caused James Doe to undergo additional

harassment or increased his vulnerability. Accordingly, I decline

to conclude that Defendants’ response to James Doe’s harassment

was clearly unreasonable.

Because Plaintiffs have not alleged deliberate indifference

on the part of Defendants, Count XIV is dismissed.

V.

In Count XV, Plaintiffs assert a Title IX retaliation claim

against the District U-46 School Board. They allege that the Board

retaliated against Plaintiffs for reporting James Doe’s harassment

by failing to protect James Doe from future harm. ECF No. 1 at

103, ¶¶ 190-91. To establish a Title IX retaliation claim,

Plaintiffs must allege: “(1) [James Doe] engaged in a statutorily

protected activity; (2) [Defendants] took a materially adverse

action against [him]; and (3) there existed a but-for causal

connection between the two.” Burton v. Bd. of Regents of Univ. of

Wis. Sys., 851 F.3d 690, 695 (7th Cir. 2017). Accordingly, “[a]

Title IX [retaliation] claim fails if the plaintiff has not alleged

some ‘retaliatory motive’ connecting the protected activity to the

adverse action.” Doe v. Columbia Coll. Chi., 299 F. Supp. 3d 939,

960 (N.D. Ill. 2017), aff’d, 933 F.3d 849 (7th Cir. 2019).

Plaintiffs’ retaliation claim must be dismissed because

Plaintiffs have alleged no retaliatory motive for failing to

protect James Doe. Plaintiffs’ own allegations establish that

teachers and administrators reacted with concern and took

corrective action each time they received reports of bullying or

harassing behavior. See, e.g., ECF No. 1 ¶¶ 72, 94, 111, 141-42,

145-47, 153. There are simply no plausible allegations of any

animus on the part of the School Board resulting from James Doe’s

reports of harassment. Accordingly, Count XV is dismissed.

VI.

Defendants next move to dismiss Counts XVI-XVII, XIX, and

XXI-XXIII, which assert claims against Defendants Theresa Winters,

Nellie Gonzalez, Steve Johnson, Gina Dawkins, Tony Sanders, and

Jeffrey Prowell for willful and wanton misconduct for failure to

ensure student safety from physical violence. Defendants argue

first that the claims are barred by various provisions of the

Illinois Local Governmental and Governmental Employees Tort

Immunity Act (“the Tort Immunity Act”), 745 Ill. Comp. Stat. 10/1-

101 et seq., and secondly that Plaintiffs fail to state a claim.

Turning first to the question of immunity, Defendants argue

that Sections 2-103 and 2-205 of the Tort Immunity Act apply.

Those sections prohibit liability for public entities and

employees for failure “to enforce any law.” 745 Ill. Comp. Stat.

10/2-103; 745 Ill. Comp. Stat. 10/2-205. Plaintiffs allege that

Defendants were willful and wanton in part because they failed to

enforce four policies: the U-46 school district anti-bullying

policy, the Rider Rules and Bus Safety Standards regarding

transportation of students via bus, and the SAFE School Year

Guidelines, which included, in part, a bullying policy. See ECF

No. 1 ¶¶ 32-63. Defendants contend that they are immune from those

claims under Sections 2-103 and 2-205.

The policies in question, however, are not “laws” such that

failure to enforce them would qualify as conduct governed by

Sections 2-103 and 2-205. See Reyes v. Bd. of Educ., 139 N.E.3d

123, 133-35, 137 (Ill. App. Ct. 2019) (finding no immunity under

§§ 2-103 and 2-205 for failure to enforce transit and sexual

harassment policies following student sexual assault on bus).

Defendants maintain that at least the anti-bullying policy is

properly considered a law because under the Illinois School Code,

school districts are required to “create, maintain and implement

a policy on bullying.” 105 Ill. Comp. Stat. 5/27-23.7(d). But

“[n]ot everything passed by the Board is a law under the Act.”

Reyes, 139 N.E.3d at 135. The fact that school boards are legally

required to have a bullying policy does not necessitate that the

policy has the force of law. I decline to conclude that Defendants

are immune under Section 2-103 or 2-205.

Defendants argue next that Section 4-102 bars their claims.

That section provides:

Neither a local public entity nor a public employee is

liable for 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 Ill. Comp. Stat. 10/4-102. Section 4-102 does not apply here

because Plaintiffs do not allege that Defendants failed to do any

of the above. First, there is no allegation that Defendants failed

to provide police protection to James Doe. Second, under the plain

language of the statute, “immunity for failure to prevent a crime

[only] attaches ‘if police protection service is provided,’” Doe

ex rel. Ortega-Piron v. Chi. Bd. of Educ., 820 N.E.2d 418, 421

(Ill. 2004) (emphasis in original), and there is no allegation

here that the teacher and administrator Defendants functioned as

police by “provid[ing] services performed by police personnel such

as ‘weapons detection, traffic control, and crowd security and

control.’” See Reyes, 139 N.E.3d at 139 (no Section 4-102 immunity

where teacher and bus aide defendants allegedly failed to protect

student from sexual assault on school bus); see also Ortega-Piron,

820 N.E.2d at 423 (school board was not providing ‘police

protection service’ under Section 4-102 by providing bus

attendant); Doe v. Bd. of Educ., No. 19 C 00263, 2020 WL 1445638,

at *14 (N.D. Ill. Mar. 24, 2020) (no immunity for school board

under Section 4-102 where disabled student was allegedly sexually

assaulted by school employee in shower). Section 4-102 is

inapplicable.

Defendants also argue that Section 3-108 immunizes their

conduct. That section provides immunity for public entities and

employees who supervise an activity on public property. 745 Ill.

Comp. Stat. 10/3-108. However, “[W]illful and wanton conduct is

not protected by the immunity conferred in section 3-108.” Ortega-

Piron, 820 N.E.2d at 423. As Plaintiffs have alleged willful and

wanton conduct on behalf of Defendants, Section 3-108 does not

apply. See, e.g., Doe, 2020 WL 1445638, at *14.

Finally, Defendants contend that the claims against them are

barred by Section 2-201, 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 discretion even though abused.” 745 Ill. Comp. Stat.

10/2-201. “The provision requires an inquiry into both the public

employee’s position and the nature of the action challenged in a

lawsuit. . . . For section 2-201 to apply, the employee’s position

may involve either formulating policy or exercising discretion;

the particular act or omission challenged must be both a

determination of policy and an exercise of discretion.” Albers v.

Breen, 806 N.E.2d 667, 675 (Ill. App. Ct. 2004) (emphasis in

original). “Policy decisions are those that require a governmental

entity to balance competing interests and make a judgment call as

to what solution will best serve those interests.” Reyes, 139

N.E.3d at 140. “Discretionary acts are ‘unique to a particular

office,’” and “[d]iscretion ‘connotes a conscious decision.’” Id.

(citations omitted). In contrast, “a ministerial act is one ‘which

a person performs on a given set of facts in a prescribed manner,

in obedience to the mandate of legal authority, and without

reference to the official’s discretion as to the propriety of the

act.’” Doe I v. Bd. of Educ., 364 F. Supp. 3d 849, 867 (N.D. Ill

2019) (citing Hascall v. Williams, 996 N.E.2d 1168, 1176 (Ill.

App. Ct. 2013)).

The distinction between discretionary and ministerial acts

“‘resists precise formulation’ and can be made only on the

particular facts established in a particular case.” Doe ex rel.

Doe v. White, 627 F. Supp. 2d 905, 923 (C.D. Ill. 2009) (citing

Snyder v. Curran Twp., 657 N.E.2d 988, 992 (Ill. 1995)).

Accordingly, “[i]t is difficult to draw generalizations from case

law applying Section 2-201.” White, 627 F. Supp. 2d at 922

(collecting cases). Moreover, application of Section 2-201 is an

affirmative defense, so “defendants have the burden of proof on

the issue and plaintiffs need not address it in their complaint.”

S.G. v. Rockford Bd. of Educ., No. 08 C 50038, 2008 WL 5070334, at

*8 (N.D. Ill. Nov. 24, 2008); see also Van Meter v. Darien Park

Dist., 799 N.E.2d 273, 285 (Ill. 2003). As a result, and due to

the fact-intensive nature of the necessary analysis, courts often

refuse to grant immunity under Section 2-201 at the motion-to-

dismiss stage. See, e.g., Doe I, 364 F. Supp. 3d at 867; White,

627 F. Supp. 2d at 923; S.G., 2008 WL 5070334, at *8; see also Van

Meter, 799 N.E.2d at 286 (reversing dismissal under Section 2-201

because whether defendants’ actions were discretionary was not

apparent from complaint).

I conclude that Defendants have not met their burden to

establish that Section 2-201 applies at this early phase of

proceedings. As noted above, a Section 2-201 analysis requires an

inquiry into the public employees’ positions, and here, “[t]he job

titles of Defendants are in the records, but there is no

information about the delineation and scope of their duties.”

White, 627 F. Supp. 2d at 923. Thus, it is not possible to evaluate

whether each of the defendants had discretion to decide the manner

in which complaints of bullying or abuse should be handled, or

whether the decisions they made were unique to the positions they

held. It is also not clear from the complaint what competing

interests the defendants balanced, if any. It may well be that

some or all of the claims are barred by Section 2-201, but it is

simply too early to make that determination.

Because the willful and wanton claim is not barred by the

Tort Immunity Act at this stage, I turn to the merits. “Under

Illinois law, a plaintiff pleading willful and wanton misconduct

must establish the same basic elements of a negligence claim, which

are the existence of a duty, breach of that duty, and an injury

proximately resulting from the breach.” Doe-2 v. McLean Cnty.

Unit Dist. No. 5 Bd. of Dirs., 593 F.3d 507, 514 (7th Cir. 2010).

“A willful and wanton claim has the additional requirement that

the breach be not merely negligent, but with ‘conscious disregard

for the welfare of the plaintiff.’” Id. (citing Ortega-Piron, 820

N.E.2d at 423). Circumstances indicating such a disregard for the

safety of others include “failure, after knowledge of impending

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

discover the danger through recklessness, or carelessness when it

could have been discovered by ordinary care.” Doe, 2020 WL

1445638, at *15 (citing O’Brien v. Twp. High Sch. Dist. 214, 415

N.E.2d 1015, 1018 (Ill. 1980)) (emphasis omitted). Unlike in the

Title IX context, sex-based harassment is not the only relevant

conduct, and a plaintiff may state a claim “based only on the

defendant’s knowledge of the risk of misconduct.” Id. (emphasis

in original).

Defendants argue first that Plaintiffs have failed to plead

the existence of a duty to protect. ECF No. 21 at 8-9. It is

true that “a person ordinarily ‘has no duty to act affirmatively

to protect another from criminal attack by a third person.’” Doe-

2, 593 F.3d at 514 (citing Iseberg v. Gross, 879 N.E.2d 278, 284

(Ill. 2007)). However, “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. at 515

(collecting cases). Here, Plaintiffs allege that they reported to

Defendants multiple times that James Doe was being bullied,

including by Student Offender 2. Accordingly, they allege

Defendants had unique knowledge of the danger Student Offender 2

posed to James Doe, which supports imposition of a duty to protect.

Defendants also contend that Plaintiffs failed to allege

Defendants acted with conscious disregard for James Doe’s welfare.

ECF No. 21 at 9-10. But again, Plaintiffs allege that the Does

complained multiple times that James Doe was experiencing bullying

and harassment, including by Student Offender 2, but the harassment

was allowed to continue. “These averments of fact are sufficient

to present jury questions as to the knowledge of [Defendants] and

the foreseeability of harm to [James Doe], and, thus, the issue of

willful and wanton conduct.” Ortega-Piron, 820 N.E.2d at 424; see

also Doe, 2020 WL 1445638, at *15 (Plaintiffs stated willful and

wanton claim where school board had no notice of employee’s prior

sexual misconduct, but knew employees were not subjected to

background checks or consistently trained, suggesting danger of

employee misconduct).

For all these reasons, I decline to dismiss Counts XVI-XVII,

XIX, and XXI-XXIII.

VII.

Defendants next move to dismiss Counts XXVI, XXVIII, XXX,

XXXII, XXXIV, XXXVI, XXXVII, and XL, which assert claims against

the U-46 School Board for willful and wanton conduct for failure

to train for anti-bullying Theresa Winters, Nelly Gonzalez, Steve

Johnson, Gina Dawkins, Jeffrey Prowell, the Unidentified School

Bus Driver, Ms. Lenore (an unidentified SAFE program employee),

and Mamie Carter (the SAFE program coordinator). They also move

to dismiss Counts XLI-XLVIII, which are asserted in the alternative

against Tony Sanders for willful and wanton conduct for failure to

train for anti-bullying each of the above defendants.

Defendants first argue that Section 2-201 of the Tort Immunity

Act bars these claims because decisions regarding anti-bullying

training for employees are discretionary. As a threshold matter,

while these claims are brought in part against the U-46 School

Board, Section 2-201, by its terms, immunizes only “public

employee[s].” 745 Ill. Comp. Stat. 10/2-201. However, under

Section 2-109, “[a] local public entity is not liable for an injury

resulting from an act or omission of its employee where the

employee is not liable.” 745 Ill. Comp. Stat. 10/2-109.

Accordingly, “[t]ogether with § 2-201, § 2-109 provides public

employers with immunity against allegations that challenge

discretionary policy determinations of their employees.” S.G.,

2008 WL 5070334, at *8 (citing Murray v. Chi. Youth Ctr., 864

N.E.2d 176, 185-86 (Ill. 2007)).

However, for the reasons discussed above, I decline to dismiss

these claims on Section 2-201 grounds. Liability here is premised

on the underlying public employees’ duties, scope of

responsibility, and applied discretion, and that analysis must

rest on more than the complaint here--it must rest “on the

particular facts established” as the case progresses. See White,

627 F. Supp. 2d at 923.

Defendants also argue Plaintiffs failed to establish a legal

duty to train. “Whether a defendant has a duty to train its

employees is . . . best analyzed under principles generally

applicable to negligence cases.” McNerney v. Allamuradov, 84

N.E.3d 437, 452 (Ill. App. Ct. 2017). “The touchtone of the duty

analysis is to ask whether the plaintiff and defendant stood in

such a relationship to one another that the law imposes on the

defendant an obligation of reasonable conduct for the benefit of

the plaintiff.” Vancura v. Katris, 939 N.E.2d 328, 347 (Ill. 2010)

(citation omitted). “The inquiry involves four factors: (1) the

reasonable foreseeability of the injury; (2) the likelihood of the

injury; (3) the magnitude of the burden of guarding against the

injury; and (4) the consequences of placing the burden on the

defendant.” Id. Applying these factors, at least one Illinois

court recognized that a taxicab company owed a duty to train its

drivers to avoid the possibility of passenger sexual assault.

McNerney, 84 N.E.3d at 452. Educators and administrators certainly

have at least as great an obligation to prevent sexual assault of

minor students in their care. Accordingly, I decline to find that

Plaintiffs failed to allege a duty to train on the part of

Defendants. The motion to dismiss Counts XXVI, XXVIII, XXX, XXXII,

XXXIV, XXXVI, XXXVII, and XL-XLVIII is denied.

VIII.

Finally, Defendants moved to dismiss Counts XXV, XXVII, XXIX,

XXXI, XXXIII, XXXV, XXXVII, and XXXIX, which assert claims against

the School Board for vicarious liability as to Theresa Winters,

Nelly Gonzalez, Steve Johnson, Gina Dawkins, Jeffrey Prowell, as

well as the Unidentified School Bus Driver, Ms. Lenore, and Mamie

Carter. Defendants argued only that the Board cannot be

vicariously liable if Plaintiffs have failed to state a claim

against the underlying employees. See ECF No. 21 at 15 (citing

Carey v. K-Way, Inc., 728 N.E.2d 743, 748 (Ill. App. Ct. 2000)).

Because I do not dismiss the willful and wanton claims against the

individual employees, however, that argument is moot.

IX.

For the foregoing reasons, the motion to dismiss [20] is

granted in part and denied in part. Claims I, XII, and XIII, which

were brought against School District U-46, are dismissed in their

entirety. Counts XXV-XL are dismissed as asserted against School

District U-46. The § 1983 claims asserted against Defendants,

Counts II-III and Counts V-IX, are dismissed. The Title IX claims

asserted against the U-46 School Board, Counts XIV and XV, are

also dismissed. The remaining claims may proceed.

ENTER ORDER:

Bud

<lec-Eb

United States District Judge

Dated: August 27, 2021

32