J.E. v. Board of Education of the City of Chicago

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

J.E., a MINOR CHILD,

by her Mother and next friend,

JUANITA EVANS,

Plaintiff, Case No. 23-CV-02274

v.

THE BOARD OF EDUCATION OF Judge John Robert Blakey

THE CITY OF CHICAGO,

Defendant.

MEMORANDUM ORDER AND OPINION

Plaintiffs J.E., a minor child, and her mother, Juanita Evans, sue the Board of

Education of the City of Chicago (the “Board”) for violation of the Americans with

Disabilities Act (“ADA”) (Count I) and for willful and wanton conduct under Illinois

state law (Count II). [17]. The Board moves to dismiss Counts I and II, arguing that

both of Plaintiffs’ claims fail as a matter of law. [18]. For the reasons explained

below, the Court grants the Board’s motion.

I. Factual Background1

At the time Plaintiffs filed suit, J.E. was a five-year-old student with a

developmental delay disability who resided in Chicago, Illinois. [17] ¶¶ 11–12. In

August of 2021, J.E. began attending half-days at the Building Blocks Learning

Academy in Chicago. Id. ¶¶ 24–25. Several months later, on November 12, 2021,

1 The Court draws the facts from Plaintiff’s First Amended Complaint, [17], accepted as true for

purposes of Defendant’s motion to dismiss.

Building Blocks Day Care, a therapeutic day school, evaluated J.E. for a “Head Start”

screening. Id. ¶ 26. During this evaluation, evaluators expressed concerns about

J.E.’s cognitive, academic, motor, and communication skills, as well as her social

emotional functioning. Id. As a result, Building Blocks Day Care referred J.E. for a

full evaluation regarding an Individual Education Program (“IEP”). Id.

On March 21, 2021, J.E. received a Chicago Public Schools (“CPS”) initial IEP

evaluation. Id. ¶ 27. During the evaluation, J.E. exhibited weak vocabulary skills,

her speech was not always clear, and she struggled with fine motor skills, including

grasping. Id. ¶ 28. After considering J.E.’s developmental disability along with her

individual academic, developmental, and functional needs, her IEP evaluation team

determined that she required “one on one support on a daily basis.” Id. ¶ 29. Within

the developmental and functional needs portion of the IEP, the team stated that J.E.

was able to access the school environment and “play on a playground given general

supervision.” Id. ¶ 30.

The IEP evaluation ultimately determined that J.E. required modifications or

accommodations for specialized instruction relating to independent functioning and

educational areas. [17] ¶ 31. Further, the IEP evaluation concluded that the optimal

educational setting for J.E. would be general education paired with special education

support for over 60% of the school day. Id. ¶ 32. This special education support would

be administered outside of the general education setting, yet within a general

education school. Id.

The Board maintains administrative control and direction of public elementary

schools in the City of Chicago. Id. ¶ 17. To effectively provide J.E. with the full

benefits of a CPS special education program, the Board was responsible for assigning

J.E. to a CPS school that would meet the reasonable modifications and

accommodations set forth in her IEP. Id. ¶ 35. The Board eventually assigned J.E.

to attend Stagg Elementary School, a CPS school. Id. ¶ 32. The implementation of

J.E.’s individual IEP program was scheduled to take place at Stagg from March 21,

2022 through March 21, 2023. Id. ¶ 34.

On April 28, 2022, J.E. began attending Stagg and participating in an

individualized CPS special education program during half of the school days,

pursuant to her IEP. [17] ¶ 37. Plaintiffs allege that on May 31, 2022, J.E. played

on the playground unsupervised at Stagg. Id. ¶¶ 39, 42. While on the playground,

J.E. attempted to step onto the playground set and fell on a step that exceeded her

reach. Id. ¶ 39. As a result of this fall, J.E. suffered a fracture in her right arm. Id.

Following J.E.’s fall on the playground, Mrs. A., J.E.’s special education

teacher at Stagg, contacted J.E.’s mother, Juanita Evans, via text message. [17] ¶

40. In a text message sent at 2:24 p.m. on the day of the incident, Mrs. A. informed

Ms. Evans that J.E. was ready to be picked up from school because she had been

crying for about 20 minutes. [17-2] at 1. In a subsequent text message sent to Ms.

Evans, Mrs. A. explained that J.E., “went outside to play on the playground and she

couldn’t get on one of the playground sets because it was too high and she was upset

and hasn’t stopped crying since.” Id. Mrs. A. further informed Ms. Evans that there

were 6 teachers outside at the time of the incident, and none of them saw J.E. fall on

the playground. Id. at 3.

Plaintiffs assert that, because no teacher knew what happened to J.E., the

Board provided no supervision to the disabled minor J.E. while she was playing on a

dangerous playground. [17] ¶ 46. Thus, Plaintiffs contend that, by allowing J.E. to

play on the playground unsupervised on the day of the incident, the Board,

individually and by and through its agents and/or employees, the teachers, failed to

administer the reasonable accommodations legally required by the IEP. Id. ¶ 1.

Following the incident, on May 31, 2022, J.E. did not return to her assigned

public school, Stagg. [17] ¶ 48. As a result of J.E.’s injury, Plaintiffs incurred medical

and hospital expenses. Id. ¶ 71. Today, J.E. continues to suffer mental and emotional

anguish as a result of her fall on the playground. Id. ¶ 71. Plaintiffs contend that,

absent the enforcement of the accommodations outlined in J.E.’s IEP, J.E. cannot

attend an assigned CPS public school and cannot meaningfully benefit from the

special education program the Board has offered.2 Id. ¶ 1.

Plaintiffs filed their initial complaint on April 11, 2023, [1], and their first

amended complaint on July 20, 2023, [17]. The Board now moves to dismiss Counts

I and II of Plaintiffs’ first amended complaint, arguing that both fail as a matter of

law. [18].

2 In their first amended complaint, Plaintiffs sought “compensatory damages, declaratory relief and

injunctive relief.” [17] ¶ 2. Plaintiffs, however, have since withdrawn their request for all relief other

than compensatory damages, stating in their response to the Board’s motion to dismiss, “Plaintiffs are

only seeking compensatory damages, a remedy that the IDEA cannot supply.” [21] at 6. As such, this

Court is no longer being asked to consider injunctive relief or J.E.’s future educational placement or

other IDEA accommodations as required by law.

II. Legal Standard

To survive a motion to dismiss under Rule 12(b)(6), the complaint must provide

enough factual information to state a claim to relief that is “plausible on its face” and

“enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555, 570. Importantly, a motion to dismiss tests the

sufficiency of the complaint, not the merits of the case. See Gibson v. City of Chi., 910

F.2d 1510, 1520 (7th Cir. 1990). To pass this test, 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).

When deciding a motion to dismiss, the Court must accept as true all well-pled

factual allegations, but it need not accept mere legal conclusions. Ashcroft v. Iqbal,

556 U.S. 662, 678, 679 (2009). Thus, “threadbare recitals of the elements of a cause

of action, supported by mere conclusory statements,” are insufficient to withstand a

Rule 12(b)(6) motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). But

when considering well-pled factual allegations, a court must draw all reasonable

inferences from those allegations in favor of the plaintiff. Thompson v. Illinois Dep’t

of Professional Regulation, 300 F.3d 750, 753 (7th Cir. 2002).

III. Analysis

A. Violation of Americans with Disabilities Act

1. Failure to Exhaust Administrative Remedies under the

IDEA

The Board moves to dismiss Count I, Plaintiffs’ ADA claim, arguing that

Plaintiffs must first exhaust the administrative remedies available to them under the

Individuals with Disabilities Education Act (“IDEA”) before pursuing a claim under

another federal law. [18] at 3. Plaintiffs argue that they are not required to exhaust

their remedies under the IDEA because the remedy sought by Plaintiffs

(compensatory damages) is not relief that is provided under the IDEA. [21] at 2.

The relevant IDEA exhaustion provision is codified in 20 U.S.C. § 1415(l), which

states:

Nothing in [the IDEA] shall be construed to restrict or limit the rights,

procedures, and remedies available under the Constitution, the [ADA], title V

of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of

children with disabilities, except that before the filing of a civil action under

such [other federal] laws seeking relief that is also available under [the IDEA],

the [IDEA’s administrative procedures] shall be exhausted to the same extent

as would be required had the action been brought under [the IDEA].”

20 U.S.C. § 1415(l). Thus, a plaintiff must first exhaust the IDEA’s administrative

procedures only when the suit is “seeking relief that is also available under” the

IDEA. Id.

The parties agree that Plaintiffs seek only compensatory damages for denial of

a free and appropriate education and that, were they seeking relief available under

the IDEA, they would first have to exhaust administrative remedies. Thus, the

question turns on whether a plaintiff can bring a claim under the ADA without first

exhausting administrative remedies under the IDEA simply because she seeks

compensatory damages, a form of relief not available under the IDEA. The Supreme

Court answered this exact question in Luna Perez v. Sturgis Public Schools, 598 U.S.

142, 145 (2023).

The plaintiff in Perez brought suit under the ADA for “backward-looking relief

in the form of compensatory damages.” 598 U.S. at 145. The defendant moved to

dismiss on the grounds that the plaintiff failed to exhaust her remedies under the

IDEA. The Court held that the administrative exhaustion requirement does not

apply “where a plaintiff brings a suit under another federal law for compensatory

damages—a form of relief everyone agrees the IDEA does not provide.” Id. at 147−48.

So too here. Plaintiffs seek compensatory damages for events that have already

occurred, namely J.E.’s physical injury on the playground. Under Perez, Plaintiffs

need not exhaust their administrative remedies before bringing such claim.

Accordingly, the Court denies the Board’s motion to dismiss Count I of

Plaintiffs’ complaint for failure to exhaust administrative remedies under the IDEA.

2. Failure to State a Claim under the ADA

The Board also moves to dismiss Count I of Plaintiffs’ complaint for failure to

state a claim under the ADA. [18] at 9.

To adequately state a claim under Title II of the ADA, a plaintiff must “plead

facts suggesting that he is a ‘qualified individual with a disability’ who ‘by reason of

such disability’ was ‘denied the benefits of the services, programs, or activities of a

public entity.’” Brown v. Meisner, 81 F.4th 706, 708 (7th Cir. 2023) (quoting 42 U.S.C.

§ 12132). A Title II ADA claim can be based upon one of three theories: “(1) the

defendant intentionally acted on the basis of the disability, (2) the defendant refused

to provide a reasonable modification, or (3) the defendant's rule disproportionally

impacts disabled people.” Wis. Cmty. Servs. V. City of Milwaukee, 465 F.3d 737, 753

(7th Cir. 2006). To state a reasonable accommodation claim under Title II of the ADA,

“a plaintiff need not allege either disparate treatment or disparate impact.” Id.

Here, Plaintiffs allege that the Board failed to make reasonable

accommodations for J.E by failing to enforce her IEP, which constitutes a denial of

the benefits of the special education program.3 [17] ¶¶ 1, 50, 62, 63, 65, 69, 70.

Plaintiffs rely upon Section 7 of the IEP, which is entitled “General Considerations

in the Development of the IEP” and which states that J.E. was “able to play” on a

playground “given general supervision.” Id. ¶ 30; see also [17-1] at 3. But nothing in

J.E.’s IEP indicates that providing “general supervision” on the playground

constituted an accommodation or modification for J.E.’s disability.

On the contrary, her IEP lists various areas of need for which J.E. requires an

accommodation and/or modification. [17-1] at 6. Notably, the areas of physical

education, physical/sensory, health/medical, non-academic, and extra-curricular

activities are not checked off as areas in which J.E. needs an accommodation or

modification. Id. The IEP only refers to a need for “general supervision” on the

3 Any state covered by the IDEA, such as Illinois, must provide a disabled child with special education

and related services “in conformity with the [child’s IEP]” as part of the requisite free and appropriate

public education (FAPE). Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 580 U.S. 386, 390 (2017)

(quoting 20 USCS § 1401(9)(D)). The IEP has been referred to as “the centerpiece of the [IDEA’s]

education delivery system for disabled children.” Id. at 391. A child’s IEP “is the means by which

special education and related services are ‘tailored to the unique needs’ of a particular child.” Id.

playground in Section 7, which describes in a narrative fashion what activities J.E.

is capable of performing. Id. It does not describe the needed modifications or

accommodations J.E. requires.

Further, while failure to abide by a student’s IEP can form the basis for a

reasonable accommodation claim, see McDaniel v. Bd. Of Educ. Of City of Chicago,

2013 WL 3872807, at *6 (N.D. Ill. July 25, 2013), not every deviation from an IEP

constitutes discrimination under the ADA subject to a claim for compensatory

damages. See CTL ex rel. Trebatoski v. Ashland Sch. Dist., 743 F.3d 524, 529 (7th

Cir. 2014). Rather, the ADA requires a modification only “when necessary to avoid

discrimination on the basis of a disability.” Id. (quoting Wis. Cmty. Servs., 465 F.3d

at 753). In such instances, a school may be required to modify its “policies, practices,

or procedures” to avoid discrimination. Fry v. Napoleon Cmty. Sch., 580 U.S. 154,

159 (2017).

But Plaintiffs fail to identify any reasonable modification that the Board

refused to make. Indeed, Plaintiffs fail to even allege that J.E. required a

modification or accommodation to play on the playground. At most, Plaintiffs appear

to be arguing that failure to provide J.E. the same supervision a non-disabled child

would receive constituted a violation of her IEP and, therefore, the ADA. Even

assuming such a failure were a violation of J.E.’s IEP, it would not constitute denial

of a reasonable accommodation or modification, and thus it cannot support Plaintiffs’

ADA claim. Absent any other factual allegations that demonstrate the Board denied

J.E. a reasonable accommodation, Plaintiffs have failed to state a claim for violation

of the ADA.4

Accordingly, the Court grants the Board’s motion to dismiss Count I.

B. Count II: Willful and Wanton Conduct

Plaintiffs also bring a claim of willful and wanton conduct, alleging that the

Board failed to provide any supervision to disabled minor J.E., as required by the IEP

guidelines, despite the inherent dangerous nature of the playground. [21] at 9. The

Board argues that Plaintiffs have not pled any facts to support a finding of willful

and wanton conduct. [18] at 12

Under Illinois law, there exists no separate and independent tort for willful

and wanton conduct. Krywin v. Chi. Transit Auth., 938 N.E.2d 440, 452 (Ill. 2010).

Rather, willful and wanton conduct constitutes an aggravated form of negligence. Id.

Thus, to state a claim for willful and wanton conduct, a plaintiff must allege the basic

elements of a negligence claim, as well as “either a deliberate intention to harm or an

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

Chi. Bd. Of Educ., 820 N.E.2d 418, 423 (Ill. 2004).

4 The Seventh Circuit has also held that Title II of the ADA “only provides for damages if a public

official intentionally discriminates because of disability.” Morris v. Kingston, 368 F. App'x 686, 689

(7th Cir. 2010) (citing Bd. of Educ. of Twp. High Sch. Dist. No. 211 v. Ross, 486 F.3d 267, 278 (7th Cir.

2008)); see also Hildreth v. Butler, 960 F.3d 420, 431 (7th Cir. 2020) (holding a plaintiff must allege

deliberate indifference to state a claim for compensatory damages under the ADA). Because Plaintiffs

concede that, by not exhausting their administrative remedies, they can only seek compensatory

damages under the ADA, they must also allege intentional discrimination by a public official to succeed

on their Title II theory. As discussed below, Plaintiffs fail to allege that any public official intentionally

discriminated against J.E. or acted with deliberate indifference. Thus, Count I fails for the

independent reason that Plaintiffs have failed to properly state a claim for the only relief available to

them under the ADA.

Willful and wanton conduct goes beyond “mere inadvertence, incompetence,

unskillfulness, or a failure to take precautions to enable the actor adequately to cope

with a possible future emergency.” Bialek v. Moraine Valley Community College Sch.

Dist. 524, 642 N.E.2d 825, 865 (Ill. App. Ct. 1994). Conduct of this type, instead,

requires a “conscious choice of a course of action, either with knowledge of the serious

danger to others involved in it or with knowledge of facts which would disclose this

danger to any reasonable man.” Burke v. 12 Rothschild's Liquor Mart, 593 N.E.2d

522, 531 (Ill. 1992) (quoting Restatement (Second) of Torts § 500, Comment g at 590

(1965)).

When alleging that a defendant engaged in willful and wanton conduct, the

plaintiff cannot merely label the conduct as willful and wanton in order to meet the

pleading standard. Winfrey v. Chicago Park Dist., 654 N.E.2d 508, 512 (Ill. App. Ct.

1995). Rather, the willful and wanton conduct must be shown through well-pled

facts. Id. Conclusory statements of fact or law will not suffice. Adkins v. Sarah Bush

Lincoln Health Center, 544 N.E.2d 733, 744 (Ill. 1989).

Courts have not determined a hard and fast rule for what constitutes willful

and wanton conduct, so assessing the nature of the conduct requires a thorough

examination of the facts alleged by the plaintiff. Winfrey, 654 N.E.2d at 945. For

example, a plaintiff may allege that “the defendant removed safety equipment, or had

previous knowledge of accidents, or had been put on notice of the danger.” Winfrey,

654 N.E.2d at 945; see also Benhart v. Rockford Park Dist., 578 N.E.2d 600, 604 (Ill.

App. Ct. 1991) (finding plaintiff sufficiently alleged willful and wanton conduct by

stating that the defendant removed non-slip strips on the bottom of its pool).

In this case, Plaintiffs allege that the Board, “willfully and wantonly allowed

its employee and/or agent to fail to enforce significant accommodations for the

developmental delay disability of J.E., as contained in J.E.’s Individual Education

Program (IEP), when the teacher of J.E. at Stagg Elementary School failed to provide

general supervision of J.E. while J.E. was on the playground and fell.” [17] ¶ 79.

Plaintiffs also allege that the playground was inherently dangerous, and that the

Board knew children regularly fall and are injured on playgrounds. Id. Additionally,

Plaintiffs contend that the Board failed to provide J.E. with a safe learning space and

failed to train or instruct its agents and/or employees as to the proper means and

conduct of providing J.E. with the services required by her IEP. Id.

None of the above allegations rise to the level of willful and wanton conduct.

Plaintiffs do not support their claim with any facts to suggest the Board may have

removed safety equipment from the Stagg playground. Nor do they offer any facts to

suggest the Board had previous knowledge of accidents on the Stagg playground or

had been put on notice of any danger. Although J.E.’s IEP stated that she could play

on a playground “given general supervision,” it does not state that J.E. had a

particular propensity for physical injury or required special supervision to use

playground equipment. As such, Plaintiffs do not allege that the Board or any of its

agents or employees willfully and wantonly disregarded J.E.’s needs as mentioned in

her IEP.

Plaintiffs also allege that the playground “was inherently dangerous with large

concrete steps, climbing devices, and uneven surfaces which pose a safety danger to

young children, especially disabled children.” [17] ¶ 42. But such features typically

exist on playgrounds, and Plaintiffs do not allege that the Board had knowledge of

any hazardous defects present on the Stagg playground. The bare allegation that the

Board was “well aware that students are regularly injured on playgrounds,” remains

insufficient, without more, to state a claim for willful and wanton conduct.

Ultimately, Plaintiffs’ complaint points to no “conscious choice of a course of

action” that teachers at Stagg took when they allegedly failed to specifically supervise

J.E. on the playground. Burke, 593 N.E.2d at 531. Rather than showing an utter

indifference or conscious disregard for J.E.’s welfare, the fact that six teachers were

outside at the time of the accident suggests that their failure to supervise J.E.

amounted, at worst, to mere negligence, or “inadvertence, incompetence,

unskillfulness, or a failure to take precautions to enable the actor adequately to cope

with a possible future emergency.” Bialek, 642 N.E.2d at 865.

Accordingly, the Court grants the Board’s motion to dismiss Count II of

Plaintiffs’ complaint for failure to plead facts sufficient to support a finding of willful

and wanton conduct.

IV. Conclusion

For the foregoing reasons, the Court grants the Board’s motion to dismiss, [18],

and dismisses the Amended Complaint. Plaintiffs have already amended once and

failed to cure the deficiencies in the original complaint. J.E.’s IEP, which Plaintiffs

attached to the Amended Complaint, does not require an accommodation or

modification to support her during physical activity, including playing on a

playground, and Plaintiffs offer no other basis for their ADA claim. Plaintiffs have

also alleged no facts to support a claim of intentional discrimination or willful and

wanton conduct. Of course, Plaintiffs remain free, if appropriate, to purse remedies

in state court under any available legal theories, but the Amended Complaint alleged

here is dismissed. If Plaintiffs believe, in good faith and consistent with Rule 11

(which includes sanctions for pleadings not filed in good faith), that they can set forth

factual allegations to cure the deficiencies discussed above, then they may file a

second amended complaint on or before April 12, 2024. If Plaintiffs fail to file an

amended complaint by this date, the Court will dismiss this case.

Dated: March 28, 2024 Entered:

Sloe Blakey A

United States District Judge

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