G.C. by and through her parent and legal guardian A.C. v. Rock Island-Milan School District No. 41

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

ROCK ISLAND DIVISION

G.C., By and Through Her Parent and Legal )

Guardian, A.C., )

)

Plaintiff, )

)

v. ) Case No. 4:23-cv-04128-SLD-JEH

)

ROCK ISLAND-MILAN SCHOOL )

DISTRICT NO. 41, and ROCK ISLAND )

BOARD OF EDUCATION, )

)

Defendants. )

ORDER

Plaintiff G.C., by and through her parent and legal guardian, A.C., has sued Defendants

Rock Island-Milan School District No. 41 (“the District”) and Rock Island Board of Education

(“the Board”), alleging that they are responsible for unknown students sexually assaulting G.C.

See generally First Am. Compl., ECF No. 7. Pending before the Court is the Board’s Motion to

Dismiss Plaintiff’s Amended Complaint, ECF No. 8. For the reasons that follow, the motion to

dismiss is GRANTED IN PART and DENIED IN PART.

BACKGROUND1

G.C. was a minor female diagnosed with autism spectrum disorder and hearing loss when

she began her freshman year as a new student at Rock Island High School (“School”). Autism

impairs social interaction and communication and impacts behavior. The School is part of the

District, which is in turn governed and operated by the Board. The District participated in and

produced an individualized education program (“IEP”) for G.C., and which stated that G.C. had

1 At the motion to dismiss stage, the court “accept[s] as true all well-pleaded facts in the complaint, and draw[s] all

reasonable inferences in [the nonmovant]’s favor.” Pierce v. Zoetis, Inc., 818 F.3d 274, 277 (7th Cir. 2016). Unless

otherwise noted, the alleged factual background is drawn from G.C.’s First Amended Complaint.

special needs due to her intellectual and physical disabilities. G.C. asserts that the IEP should

have given the District notice that she: (1) required a high level of special education support; (2)

needed specialized instruction and accommodations to help her navigate the daily aspects of

friendships and other school relationships; (3) struggled to discern friend from foe; and (4) would

be highly susceptible to injury if left alone and unsupervised.

On August 8, 2022, G.C. was attending a gym class outdoors which was supervised by

Benjamin Hammer. G.C. injured her ankle and was temporarily unable to move from her

location near the tennis courts on School property. G.C.’s requests for help were disregarded and

she was left alone, injured, and unsupervised. She was then sexually assaulted by one or more

School students. Later that day, A.C. noticed an unusual smell coming from G.C.’s private

areas. The next day, G.C. told A.C. about the assault, and A.C. went to the School to report that

G.C. had been assaulted. A School employee told A.C. that no one was available to receive that

report and told A.C. to return later. A.C. came back again that day and met with School staff

members Tina Eygaboard and Lorelei Andedo to report the assault. “A.C. was told that G.C.

would have been with Hammer the entire time so the assault ‘couldn’t have happened.’” Id.

¶ 42. Andedo viewed G.C.’s IEP on a laptop and stated that “G.C. received social skills classes

so she ‘just probably needed social skills classes to learn what “no spots” are and how to tell

people no.’” Id. ¶ 43. Andedo and Eyhaboard concluded that G.C. was probably not sexually

assaulted and that the smell was likely due to the heat outside.

A.C.’s request that the District notify the police so the incident could be investigated was

denied—A.C. was told that the District only notifies the police if the school liaison officer

determined it necessary. That evening, Andedo called A.C. and stated that she had spoken with a

few students, who reported that they had not seen G.C. sitting near the tennis courts. She also

stated that the school’s security cameras did not cover the area where the assault had occurred,

which impeded the School’s ability to better help G.C. She also stated that Hammer and some

students had confirmed that G.C. asked for help, yet no action was taken to help G.C. or assess

her circumstances. She asserted that the District was not denying that “something happened” to

G.C., but described the situation as a “minor error.” Id. ¶¶ 49–50. She offered at-home

counseling services and to switch G.C.’s gym class so she would have a female instructor.

Two days later, on August 11, 2022, A.C. reported the assault to the Rock Island Police

Department. A.C. was informed by a detective the next day that he was unaware if the high

school had reported the assault to them. On or about August 16, 2022, A.C. contacted the School

and requested to collect G.C.’s belongings from the School. A few days later, A.C. was

informed that the District had “reported an incident of failed supervision” to the Illinois

Department of Children and Family Services on August 16, 2022. Id. ¶ 55. Between August 26,

2022 and August 31, 2022, A.C. continued to speak with the District’s representatives. The

District’s “only concern” was whether A.C. would bring G.C. back to the School, citing the

obligation imposed upon the School by the IEP to provide an education for G.C. Id. ¶ 58. A.C.

stated that she did not trust the School to adequately protect G.C. and requested that she be

transferred to the alternative school in East Moline at Black Hawk Special Education Center.

A.C. was told that such a transfer was not recommended because the School had the resources

available to accommodate G.C.’s needs. On August 30, 2022, A.C. filed a complaint in person

at the District’s Human Resources Office. “In response to the complaint, former Superintendent

Reginald Lawrence told A.C. ‘we weren’t going to go there’ and that A.C. ‘needed to understand

[her] legal obligation to educate [her] child.’” Id. ¶ 68 (alterations in original).

On or about September 20, 2022, A.C. met with Alicia Sanders and Jenny Fuhr at the

District’s superintendent’s office. A.C. asked about the protocols and policies that District

employees were expected to follow when a student provides a credible report of sexual assault

and asked for a copy of those policies. The District maintained a Title IX policy which (1)

allowed individuals to report incidents to the Title IX coordinator, or “any employee with whom

the person is comfortable speaking”; (2) required the District to investigate reports of sexual

assault and maintain an educational program free of harassment; (3) mandated making and

forwarding reports of sexual harassment to the Title IX Coordinator; and (4) required an

objective evaluation of all relevant evidence after receiving a report. Id. ¶¶ 90–94. Sanders told

A.C. that District staff members were trained and expected to notify the police and student

services at the superintendent’s office of such a report. She also stated that District staff

members were obligated to engage the student’s IEP team about the report. These steps were not

followed after A.C. reported G.C.’s assault and A.C. never received the policies or any other

documentation.

A.C. also asked about how other similar reports were handled in the District. She was

told that: (1) there had been five or six other cases involving sexual assault;2 (2) the policies

were followed in the other cases; and (3) G.C.’s case was the only time the policies were not

followed. G.C. alleges upon information and belief that her case was the only one which

involved a student with special needs and/or disabilities. G.C. suffered mental anguish and

attended therapy to help her cope with the stress and anxiety she felt due to these events,

manifesting as difficulty sleeping and focusing, panic attacks, flashbacks of the assault, and

feeling unsafe. G.C. was unable to attend her scheduled classes, fell behind in her schoolwork,

2 G.C.’s First Amended Complaint does not specify when these reports were made—for example, whether there

were five or six reports in just the previous school year, or some longer period of time.

and ultimately withdrew from the School. As of the First Amended Complaint’s filing, G.C. is

home-schooled.

G.C.’s complaint was filed on August 7, 2023, Compl., ECF No. 1, and amended on

August 28, 2024, First Am. Compl. G.C.’s First Amended Complaint asserts four counts: (I)

deliberate indifference in violation of Title IX of the Education Amendments Act of 1972 (“Title

IX”), 20 U.S.C. §§ 1681–1689, id. ¶¶ 102–21; (II) violation of Section 504 of the Rehabilitation

Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 794, id. ¶¶ 122–39; (III) violation of Title II of

the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131–12165, id. ¶¶ 140–46; and

(IV) negligence, id. ¶¶ 147–54. The Board moves under Federal Rule of Civil Procedure

12(b)(6) to dismiss the First Amended Complaint with prejudice. Mot. Dismiss 1; Mem. Supp.

Mot. Dismiss 15, ECF No. 9. G.C. requests that the Court either deny that motion or give her

leave to file another amended complaint. Resp. Mot. Dismiss 29, ECF No. 12.

DISCUSSION

I. Legal Standard

A complaint must contain “a short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). At the motion to dismiss stage, the key

inquiry is whether the complaint is “sufficient to provide the defendant with ‘fair notice’ of the

plaintiff’s claim and its basis.” Indep. Tr. Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 934

(7th Cir. 2012) (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007)). While “detailed factual

allegations are unnecessary, the complaint must have ‘enough facts to state a claim to relief that

is plausible on its face.’” Pierce v. Zoetis, Inc., 818 F.3d 274, 277 (7th Cir. 2016) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

“[M]ere ‘labels and conclusions or a formulaic recitation of the elements of a cause of action’”

are not sufficient to satisfy the plausibility standard. Bell v. City of Chicago, 835 F.3d 736, 738

(7th Cir. 2016) (quoting Iqbal, 556 U.S. at 678). A court must take “[t]he complaint’s well-

pleaded factual allegations, though not its legal conclusions, . . . [as] true,” Phillips v. Prudential

Ins. Co. of Am., 714 F.3d 1017, 1019 (7th Cir. 2013), and “draw all inferences in the light most

favorable to the nonmoving party,” Vesely v. Armslist LLC, 762 F.3d 661, 664 (7th Cir. 2014).

II. Analysis

A. Proper Defendants

Before turning to the Board’s arguments that the First Amended Complaint fails to state a

plausible claim for relief, the Court addresses the Board’s assertion in a footnote that it “is the

only legal entity capable of being sued.” Mem. Supp. Mot. Dismiss 1 n.1 (first citing 105 ILCS

5/10-2, and then citing Bd. of Educ. of Bremen High Sch. Dist. No. 228 v. Mitchell, 899 N.E.2d

1160, 1165–66 (Ill. App. Ct. 2008)). The cited statute establishes that a board of education is “a

body politic and corporate” which “may sue and be sued,” 105 ILCS 5/10-2, and the cited case

notes that “a school district lacks the capacity to sue in its own behalf unless specifically

authorized to do so in the context of a companion statute,” Mitchell, 899 N.E.2d at 1166. These

sources say nothing about whether a school district may be sued—as compared to filing a suit

itself—and the answer is not as straightforward as the Board’s cursory treatment of this question

implies. See Stanek v. St. Charles Cmty. Unit Sch. Dist. No. 303, 783 F.3d 634, 640 (7th Cir.

2015) (noting the “unexamined assumptions of prior cases” which involved adjudicating “many

special-education suits brought by and against school districts in Illinois”); Smoler v. Bd. of

Educ. for W. Northfield Sch. Dist. #31, 524 F. Supp. 3d 794, 802 (N.D. Ill. 2021) (“To be clear,

Illinois law does not say that a school district categorically lacks the capacity to sue or be sued;

again, a school district can sue or be sued if a statute expressly permits it.”). G.C. does not

respond to the Board’s footnote. The Court declines the Board’s implicit request to dismiss the

District as an improper Defendant in this case, but may revisit this issue should the parties

adequately address it in the future. Some clarification of nomenclature, however, is warranted.

The First Amended Complaint refers to the District and the Board collectively as “the District,”

First. Am. Compl. 1; in its motion to dismiss, the Board seems to refer to itself as “the District,”

e.g., Mem. Supp. Mot. Dismiss 3, and G.C.’s response to the motion refers to “Defendant,” e.g.,

Resp. Mot. Dismiss 1. For purposes of this order, the Court uses the Board to refer to the

movant, Rock Island Board of Education, and Defendants to collectively refer to the allegedly

liable actors, the Board and the District.3

B. Merits

The Board begins by arguing that G.C.’s negligence claim is either barred by state tort

immunity statutes or fails due to insufficient allegations that Defendants owed her a duty. Mem.

Supp. Mot. Dismiss 2–9. The Board then asserts that G.C. either fails to allege a necessary

element for her Title IX claim, mistreatment on the basis of sex, id. at 9–11, or fails to allege that

Defendants were deliberately indifferent to the risk that G.C. would be harmed, id. at 11–13.

The Board concludes by advancing one set of arguments against both the ADA and

Rehabilitation Act claims, namely that her allegations do not state a claim under any disability-

discrimination theories. Id. at 13–15.

3 Should both the District and Board remain proper Defendants in this case, the Court recommends that future filings

specify which party is allegedly responsible for any act or omission.

1. Negligence

G.C. invokes the Court’s supplemental jurisdiction to advance her negligence claim. See

First Am. Compl. ¶ 14 (citing 28 U.S.C. § 1367). The parties assume that Illinois law applies to

her claim—in the absence of any choice-of-law dispute, the Court applies the law of Illinois to

her claim. See, e.g., McCoy v. Iberdrola Renewables, Inc., 760 F.3d 674, 684 (7th Cir. 2014)

(“When no party raises [a] choice of law issue, the federal court may simply apply the forum

state’s substantive law.”). The Board reads the First Amended Complaint to allege four different

theories of negligence: (1) failure to properly supervise; (2) failure to properly investigate; (3)

failure to discipline Hammer; and (4) failure to discipline the unknown students. Mem. Supp.

Mot. Dismiss 2, 5 n.3. Under any of these theories, the Board asserts that Defendants are

immune. Id. at 2–3. G.C. clarifies that her “negligence claim is based on Defendant’s negligent

conduct before she was assaulted, not Defendant’s subsequent decisions or investigations into

the assault.” Resp. Mot. Dismiss 13 (citing First Am. Compl. ¶ 151). Therefore, the Court only

considers arguments related to G.C.’s claim of improper supervision.

The Board advances two sets of related arguments against this claim. First, it argues that

the First Amended Complaint’s allegations do not make out the basic elements of a negligence

claim, namely duty, breach, causation, and damages, because G.C. does not sufficiently allege

that Defendants owed her a duty. Mem. Supp. Mot. Dismiss 7–9. Second, it argues that

Defendants are immune under specific provisions of the Local Governmental & Governmental

Employees Tort Immunity Act (“Tort Immunity Act”) because the First Amended Complaint

does not allege that Defendants engaged in willful and wanton conduct. Id. at 5–9. A plaintiff

alleging that a defendant is not immune because it acted willfully and wantonly must also allege

that the defendant owed her a duty, see, e.g., Jane Doe-3 v. McLean Cnty. Unit Dist. No. 5 Bd. of

Dirs., 973 N.E.2d 880, 887 (Ill. 2012), so the Court takes up the arguments related to

Defendants’ duty to G.C. before turning to the issue of willful and wanton conduct.

a. Duty

The parties dispute whether Defendants owed G.C. a duty, Mem. Supp. Mot. Dismiss 7–

9; Resp. Mot. Dismiss 15–18. “Whether a duty exists is a question of law for the court to

decide.” Jane Doe-3, 973 N.E.2d at 887. A court must decide “whether a plaintiff and a

defendant stood in such a relationship to one another that the law imposed upon the defendant an

obligation of reasonable conduct for the benefit of the plaintiff,” id. at 888 (quoting Marshall v.

Burger King Corp., 856 N.E.2d 1048, 1057 (Ill. 2006)), where that relationship “is a shorthand

description for the analysis of 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. “In order to satisfy the

foreseeability component, it is not necessary that a defendant must have foreseen the precise

nature of the harm or the exact manner of occurrence; it is sufficient if, at the time of the

defendant’s action or inaction, some harm could have been reasonably foreseen.” Regions Bank

v. Joyce Meyer Ministries, Inc., 15 N.E.3d 545, 552 (Ill. App. Ct. 2014).

The Board argues that it did not owe G.C. a duty because “school boards owe no specific

duty to protect students from criminal attacks by others.” Mem. Supp. Mot. Dismiss 7 (citing

J.O. v. Alton Cmty. Unit Sch. Dist. 11, 909 F.2d 267, 272 (7th Cir. 1990) (rejecting a

constitutional claim under 42 U.S.C. § 1983 against a school board premised upon the argument

that “the school defendants had a ‘special relationship’ to the schoolchildren, imposing an

affirmative duty to provide for their safety and to prevent the child abuse that occurred [by an

employee]”)). G.C. responds by citing many potential duties, such as the duty to supervise and

maintain discipline within schools, the duty to protect against a particular threat where the

defendant has unique knowledge of such a threat, the ordinary duty of care owed by every person

to all others, and the duty imposed upon a voluntary undertaking. Resp. Mot. Dismiss 15–16.

G.C.’s arguments regarding the duty to supervise and maintain discipline within schools

are sufficient to demonstrate the plausibility of her allegations. Section 24-24 of the Illinois

School Code codifies the doctrine of in loco parentis, stating that “[i]n all matters relating to the

discipline in and conduct of the schools and the school children,” certain employees like teachers

“stand in the relation of parents and guardians to the pupils.” 105 ILCS 5/24-24; see also

Gammon v. Edwardsville Cmty. Unit Sch. Dist. No. 7, 403 N.E.2d 43, 45 (Ill. App. Ct. 1980).

Where the defendant school district knew that students were playing a violent game which

involved striking each other in school bathrooms, a court found that the defendant “owed a duty

to supervise the students as part of an overall duty to maintain discipline.” Brooks v. McLean

Cnty. Unit Dist. No. 5, 8 N.E.3d 1203, 1210 (Ill. App. Ct. 2014). Here, G.C. alleges that

Defendants knew that she was a student with special needs. First Am. Compl. ¶ 26. She also

alleges that this assault occurred “during school hours and outside on school property,” during a

gym class and after she had already injured her ankle. Id. ¶¶ 4, 32–34. Further, she alleges that

she was sexually assaulted by other students at the School, not random third parties unaffiliated

with the School. See id. ¶ 4. G.C. need not allege that it was reasonably foreseeable that she

would be sexually assaulted by other students to allege a duty sufficient for a claim of ordinary

negligence—only that it was reasonably foreseeable that she could be further injured if left alone

and unsupervised after injuring her ankle. See Regions Bank, 15 N.E.3d at 552.

Viewing the facts in G.C.’s favor, her allegations that Defendants knew that she had

special needs and had injured her ankle are sufficient at this stage of the case to plausibly allege

that it was reasonably foreseeable that she would be further harmed if left unsupervised while

injured. The other factors in the duty analysis also favor the imposition of a duty here, despite

the lack of factual allegations establishing any significant likelihood of a sexual assault

perpetrated by unknown students. If a school’s duty to maintain discipline extends to preventing

violent behavior within that school’s bathrooms, it is not more burdensome to extend that same

duty to an outdoor gym class, where the students are more visible than when they are behind

closed bathroom doors. See Brooks, 8 N.E.3d at 1210. G.C.’s allegations plausibly implicate

Defendants’ duty to maintain discipline within schools.

b. Immunity

Next, the Board asserts that it is immune from G.C.’s negligence claim. Mem. Supp.

Mot. Dismiss 5–9. Although the immunity statutes cited by the Board are affirmative defenses, a

court “may dismiss a claim based on an affirmative defense where the plaintiff has pleaded

herself out of court.” Love v. City of Chicago, 363 F. Supp. 3d 867, 872 (N.D. Ill. 2019) (citing

Van Meter v. Darien Park Dist., 799 N.E.2d 273, 284 (Ill. 2003)). The Board invokes a few

different immunity statutes, but the Court focuses only upon the arguments raised under section

3-108 of the Tort Immunity Act. See Mem. Supp. Mot. Dismiss 5–6. Section 3-108 provides

that, excepting other contrary statutes, “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). Therefore, G.C. must

sufficiently allege that Hammer’s failed supervision constituted willful and wanton misconduct

attributable to Defendants to overcome immunity under section 3-108.4

4 Like the Board’s arguments under section 3-108 of the Tort Immunity Act, its arguments under section 24-24 of

the Illinois School Code turn on whether G.C. has plausibly alleged that Defendants engaged in willful and wanton

The Tort Immunity Act defines “[w]illful and wanton conduct” as “a course of action

which shows an actual or deliberate intention to cause harm or which, if not intentional, shows

an utter indifference to or conscious disregard for the safety of others or their property.” 745

ILCS 10/1-210; see also Doe ex rel. Ortega-Piron v. Chi. Bd. of Educ., 820 N.E.2d 418, 423 (Ill.

2004). Willful and wanton conduct is more than “mere inadvertence, incompetence,

unskillfulness, or a failure to take precautions.” Burke v. 12 Rothschild’s Liquor Mart, Inc., 593

N.E.2d 522, 531 (Ill. 1992) (quoting Restatement (Second) of Torts § 500 cmt. g (1965)). But it

is not a “separate and independent tort”—instead, it is a “hybrid” of negligent and intentionally

tortious acts, and whether the defendant’s conduct satisfies this standard significantly depends

upon the circumstances of a given case. Ziarko v. Soo Line R. Co., 641 N.E.2d 402, 406 (Ill.

1994); see also W. Bend Mut. Ins. Co. v. Cmty. Unit Sch. Dist. 300, 193 N.E.3d 266, 277–78 (Ill.

App. Ct. 2021) (describing the “two varieties of willful and wanton conduct, intentional and

reckless” (quotation marks omitted)).

Here, the Board first asserts that the First Amended Complaint only alleges mere

negligence and does not allege willful and wanton conduct. See Mem. Supp. Mot. Dismiss 6–7

(“[T]he Plaintiff does not allege willful and wanton misconduct occurred.”). To the extent that

the Board is arguing that failure to use the words “willful and wanton” dooms Plaintiff’s claims,

conduct. See Mem. Supp. Mot. Dismiss 7; Henrich v. Libertyville High Sch., 712 N.E.2d 298, 302–03 (Ill. 1998)

(holding that defendants were immune from liability for “ordinary negligence” but not for “willful and wanton

misconduct”), as modified on denial of reh’g (June 1, 1999). Resolution of the parties’ dispute under section 3-108

sufficiently resolves the similar dispute implicated by immunity under section 24-24. The parties also dispute

whether Defendants are entitled to immunity under 745 ILCS 10/2-201. See Mem. Supp. Mot. Dismiss 3–5; Resp.

Mot. Dismiss 9–11. Section 2-201 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 ILCS 10/2-201.

Immunity under this section “requires the act or omission to be both a determination of policy and an exercise of

discretion.” Harrison v. Hardin Cnty. Cmty. Unit Sch. Dist. No. 1, 758 N.E.2d 848, 852 (Ill. 2001). Here, there are

no allegations regarding why Hammer made any decisions, such that it is not clear from the face of G.C.’s complaint

that Defendants are entitled to immunity under section 2-201 because Hammer made an unspecified discretionary

choice. See Love, 363 F. Supp. 3d at 873; Doe ex rel. Doe v. White, 627 F. Supp. 2d 905, 923 (C.D. Ill. 2009).

it is mistaken. The First Amended Complaint alleges that the Board’s “acts and omissions were

done with malice and/or with reckless indifference to G.C.’s rights,” First Am. Compl. ¶ 152,

and that it “acted in a grossly negligent and recklessly dangerous manner in failing to properly

supervise,” id. ¶ 154. G.C. need not incant the right magic words—all that matters is whether the

First Amended complaint plausibly alleges willful and wanton misconduct. See Ziarko, 641

N.E.2d at 406 (“Our case law has sometimes used interchangeably the terms ‘willful and wanton

negligence,’ ‘gross negligence,’ and ‘willful and wanton conduct.’”). G.C.’s allegations are that

Defendants acted with a mental state more culpable than mere negligence, and the Board is not

entitled to dismissal of this claim simply because the First Amended Complaint does not use the

phrase “willful and wanton.”

The Board more squarely addresses whether G.C.’s allegations rise to the level of willful

and wanton conduct when it argues that G.C. fails to allege that Defendants “had knowledge of

abuse or impending abuse.” Mem. Supp. Mot. Dismiss 8–9. “[A] teacher’s mere act of leaving

children unsupervised will not be sufficient to establish willful and wanton misconduct,” as “a

plaintiff must show that the teacher or school was aware or should have known that the absence

of supervision posed a high probability of serious harm or an unreasonable risk of harm.”

Jackson v. Chi. Bd. of Educ., 549 N.E.2d 829, 833 (Ill. App. Ct. 1989); see also Albers ex rel.

Albers v. Cmty. Consol. No. 204 Sch., 508 N.E.2d 1252, 1255 (Ill. App. Ct. 1987) (“A teacher

cannot supervise each and every child at all times while in school or while engaged in a school-

related activity.”). For example, although both the victim and perpetrator in Jackson were

children attending an “educably mentally handicapped (EMH) classroom,” 549 N.E.2d at 830,

summary judgment was appropriately granted on the basis that the defendant school board was

immune from liability because the plaintiff failed to present evidence that “this particular EMH

class contained children with behavioral problems or that EMH students by their nature have

behavioral disorders,” id. at 834.

Where Illinois courts have refused to dismiss a claim of willful and wanton misconduct

based upon improper supervision, “it has been because plaintiffs have alleged that defendants

knew or should have known of a specific, foreseeable, and probable danger arising from their

lack of supervision.” See Choice v. YMCA of McHenry Cnty., 976 N.E.2d 584, 606–09 (Ill. App.

Ct. 2012); cf. Floyd ex rel. Floyd v. Rockford Park Dist., 823 N.E.2d 1004, 1011–12 (Ill. App.

Ct. 2005) (finding that allegations about the perpetrator’s “general bad behavior” were

insufficient where the plaintiff failed to allege that the defendants were aware that the perpetrator

“was physically violent to others” before he struck the victim with a metal golf club); Knapp v.

Hill, 657 N.E.2d 1068, 1073–74 (Ill. App. Ct. 1995) (finding that allegations were insufficient

because the plaintiff’s allegations that defendants were aware of previous injuries in school’s

auto shop class were “a mere conclusion premised upon unfounded speculation” in the absence

of details—what, when, how—regarding those injuries).

Sufficient allegations of such a specific, foreseeable, and probable danger may rely upon

the alleged tortfeasor’s knowledge of the perpetrator’s prior and similar misconduct. For

example, in Ortega-Piron, the plaintiff’s ward was allegedly sexually assaulted by another

student on a bus which was unsupervised because the attendant employed by the board had

called in sick that day. 820 N.E.2d at 419–20. The Illinois Supreme Court affirmed that the

complaint’s factual allegations were “sufficient to present jury questions as to the knowledge of

the [b]oard and the foreseeability of harm to the plaintiff’s ward and, thus, the issue of willful

and wanton conduct,” where the plaintiff alleged that his ward was disabled, that the perpetrator

“had been declared a sexually aggressive child and was under a protective plan requiring that he

never be left unsupervised among other children,” and that “the [b]oard knew or should have

known that no [bus] attendant was present” when the plaintiff’s ward was assaulted. Id. at 420,

423–24; see also Doe v. Sch. Dist. U-46, 557 F. Supp. 3d 860, 878–79 (N.D. Ill. 2021) (finding

that a complaint adequately alleged willful and wanton conduct where the plaintiffs had

previously complained to the defendants multiple times that their child was being harassed and

bullied by other specifically identified students); Doe v. Dimovski, 783 N.E.2d 193, 200 (Ill.

App. Ct. 2003) (finding that a complaint adequately alleged willful and wanton conduct where

the board “fail[ed] to do anything upon learning of the sexual transgressions of a teacher with a

student”).5

Yet knowledge of prior incidents is not a requirement, as recklessness may be sufficient

to support allegations of willful and wanton conduct. See Barr v. Cunningham, 89 N.E.3d 315,

320 (Ill. 2017) (articulating the standard for willful and wanton conduct as 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” (emphasis added)

(quotation marks omitted)). For example, a court found that a complaint sufficiently alleged

willful and wanton misconduct—despite the absence of knowledge of prior sexual misconduct

by special education classroom assistants generally or a particular assistant specifically—because

the complaint’s other allegations supported “a plausible inference that the [b]oard knew that its

employees were not consistently trained on sexual misconduct policies, knew these policies were

5 To support its argument that “Plaintiff has failed to sufficiently allege that the District had knowledge of abuse or

impending abuse,” Mem. Supp. Mot. Dismiss 8, the Board points to Doe v. Bridgeforth, 102 N.E.3d 710, 714, 724–

25 (Ill. App. Ct. 2018), which found that the evidence presented at trial was insufficient to support the plaintiff’s

motion for a directed verdict on her claim of willful and wanton conduct because the evidence at trial showed “that

no one at [the school] had any reason whatsoever to suspect that [the victim] was not safe with [the teacher].” See

Mem. Supp. Mot. Dismiss 8 (citing Bridgeforth, 102 N.E.3d at 725). G.C. rightly points out that the procedural

posture of Bridgeforth diminishes its persuasive value as support for the Board’s motion to dismiss. See Resp. Mot.

Dismiss 14–15.

not uniformly implemented, and knew that it was not conducting background checks on all

employees.” Doe v. Bd. of Educ. of City of Chi., 611 F. Supp. 3d 516, 544–45 (N.D. Ill. 2020).

Relatedly, the inherently dangerous nature of performing certain activities without adequate

precautions or supervision may support plausible allegations of the reckless variety of willful and

wanton conduct, even without evidence of prior harms specific to those defendants. See Murray

v. Chi. Youth Ctr., 864 N.E.2d 176, 195 (Ill. 2007) (mini-trampoline); Hill v. Galesburg Cmty.

Unit Sch. Dist. 205, 805 N.E.2d 299, 305 (Ill. App. Ct. 2004) (chemistry experiment); Hadley v.

Witt Unit Sch. Dist. 66, 462 N.E.2d 877, 881 (Ill. App. Ct. 1984) (hammering metal).

Here, G.C. points to Ortega-Piron, Hill, and Hadley to support her argument that she has

sufficiently alleged that Defendants were “aware of specific and documented circumstances that

would have put a reasonable person on notice of the danger and impending risk of serious harm

to [G.C.] if [G.C.] was left unsupervised.” Resp. Mot. Dismiss 12–13. Yet all three cases are

distinguishable. G.C. does not allege that Defendants were on notice of her assailants’

dangerous propensities as her assailants are still unknown. See Ortega-Piron, 820 N.E.2d at

423–24. And the Board points out that the activities which Hammer allegedly failed to

supervise—walking and/or running outside—were not inherently dangerous. Mem. Supp. Mot.

Dismiss 8–9; see Hill, 805 N.E.2d at 305; Hadley, 462 N.E.2d at 881. G.C. does not point the

Court to any cases which establish that the peculiar sensitivities of the plaintiff, standing alone,

may be enough to disclose a sufficiently serious risk that would make a defendant liable for

willful and wanton conduct if ignored. See Barr, 89 N.E.3d at 320.

While G.C.’s allegations are sufficient to plausibly allege the duty necessary to maintain

a mere negligence claim, they do not rise to the level of a “specific, foreseeable, and probable

danger” that G.C. would be sexually assaulted if left unsupervised after injuring her ankle, as

required for a claim of willful and wanton conduct. See Choice, 976 N.E.2d at 607. The mere

fact that Hammer left a disabled and injured student unsupervised is insufficient to plausibly

allege that he disregarded a risk of sexual assault by unknown assailants that would have been

apparent to a reasonable person, let alone that Defendants themselves disregarded such a risk.

See Jackson, 549 N.E.2d at 833. As currently pleaded, it is clear from the face of the First

Amended Complaint that G.C. has not plausibly alleged that Hammer leaving G.C. unsupervised

constituted willful and wanton conduct. See Love, 363 F. Supp. 3d at 872 (N.D. Ill. 2019). As

pleaded, the Board is entitled to immunity under section 3-108 from G.C.’s negligent supervision

claim. The negligence claim is dismissed without prejudice.6

G.C. asks in the alternative for leave to amend her negligence claim. Resp. Mot. Dismiss

29. “Unless it is certain from the face of the complaint that any amendment would be futile or

otherwise unwarranted, the district court should grant leave to amend after granting a motion to

dismiss.” Runnion ex rel. Runnion v. Girl Scouts of Greater Chi. & Nw. Ind., 786 F.3d 510,

519–20 (7th Cir. 2015) (quotation marks omitted). Here, it is not certain that amendments to

G.C.’s negligence claim would be futile or unwarranted as she may be able to point to specific

aspects of her IEP, or some other set of facts, that sufficiently disclosed that she was at risk of

sexual assault if left unsupervised. Therefore, G.C. is given leave to file an amended version of

her negligence claim.

2. Title IX

Title IX provides in part that, “[n]o person . . . shall, on the basis of sex, be excluded

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

6 Although the District has not formally appeared in this matter and did not move for this claim’s dismissal, this

analysis applies with equal force to the District and therefore the Court dismisses this claim without prejudice sua

sponte. See, e.g., Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir. 1997) (“Sua sponte 12(b)(6) dismissals are

permitted, provided that a sufficient basis for the court’s action is evident from the plaintiff’s pleading.”).

education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a); see

also First Am. Compl. ¶ 103 (alleging that Defendants “receive[] federal financial assistance for

[their] education program[s]”). “Title IX is enforceable through an implied private right of

action.” Doe v. Purdue Univ., 928 F.3d 652, 667 (7th Cir. 2019) (citing Gebser v. Lago Vista

Indep. Sch. Dist., 524 U.S. 274, 281 (1998)). Under Title IX, “[a] plaintiff may allege a ‘direct’

or ‘institutional’ Title IX violation by pleading facts to show that the school itself discriminated

against a person on the basis of their sex.” Jauquet v. Green Bay Area Cath. Educ., Inc., 996

F.3d 802, 807 (7th Cir. 2021). “A plaintiff may also pursue a theory of ‘indirect’ discrimination

by way of student-on-student harassment that is so severe that the harassment functionally

excludes a student from school activities on the basis of sex.” Id. (citing Davis ex rel. LaShonda

D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999)). “[A] school may be held liable for the

sexual harassment of one of its students ‘when the harasser is a student.’” Johnson v. Ne. Sch.

Corp., 972 F.3d 905, 911 (7th Cir. 2020) (quoting Davis, 526 U.S. at 643). For such indirect

claims, the Seventh Circuit has stated:

Sexual harassment by a fellow student is actionable under Title IX if a plaintiff

demonstrates: (1) the harassment was based on sex, (2) it was at an educational

institution that was receiving federal funds, (3) the harassment was so severe,

pervasive, and objectively offensive that it deprived the victim of access to

educational opportunities, and (4) the school officials had actual knowledge of the

harassment and were deliberately indifferent to it.

Doe v. Columbia Coll. Chi. (Columbia Coll. II), 933 F.3d 849, 856 (7th Cir. 2019).

The Board first argues that G.C. has failed to allege that she was mistreated on the basis

of sex. Mem. Supp. Mot. Dismiss 9–11. It asserts that G.C. fails to make “any factual allegation

suggesting the [Defendants’] response to [G.C.]’s allegations were motivated by sex-based

animus.” Id. at 10. In its view, allegations that Defendants’ Title IX investigation was imperfect

are insufficient in the absence of allegations tying those imperfections to G.C.’s sex. See id. at

10–11. However, G.C. is not pursuing a direct Title IX claim against Defendants and is instead

pursuing an indirect claim of deliberate indifference to her sex-based mistreatment. See, e.g.,

First Am. Compl. ¶ 107 (“[Defendants] failed to investigate A.C.’s report of sexual assault or

take any meaningful corrective action as required by Title IX and [Defendants’] policies.”). The

Board’s citations are therefore inapposite.7

“‘[A] recipient’s deliberate indifference to one student’s sexual harassment of another . . .

constitute[s] intentional discrimination on the basis of sex’ prohibited by Title IX.” Farmer v.

Kan. State Univ., 918 F.3d 1094, 1098 (10th Cir. 2019) (second and third alteration in original)

(quoting Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 182 (2005)). The Board’s demand

that G.C. allege that its investigatory actions were itself motivated by sex-based animus, see

Mem. Supp. Mot. Dismiss 10, misses the distinction between direct and indirect claims, and is

not a basis to dismiss G.C.’s Title IX claim that Defendants were deliberately indifferent to peer-

on-peer harassment.

Next, the Board argues that G.C.’s allegations fail to plausibly allege that Defendants

“had actual knowledge of the harassment.” Id. at 11–13 (quotation marks omitted). It points to

the absence of allegations “that the District knew or should have known [G.C.] would be

sexually assaulted during physical education class and deliberately ignored that risk.” Id. at 12.

7 For example, the Board characterizes this Court’s decision in O’Shea v. Augustana College, 593 F. Supp. 3d 838,

850 (C.D. Ill. 2022), as finding that a student failed to state a Title IX claim because “the student failed to allege

male victims would be treated differently.” Mem. Supp. Mot. Dismiss 11. However, that portion of this Court’s

opinion was addressing a theory that the college “was deliberately indifferent to the actions of its employees” which

may have been discriminatory—such as asking sexist, victim-blaming questions indicative of an anti-female bias—

not a theory of deliberate indifference to reports of peer-on-peer harassment. See O’Shea, 593 F. Supp. 3d at 849–

50. When addressing the plaintiff’s claim of deliberate-indifference to peer-on-peer harassment, this Court found

that the plaintiff’s allegations failed to state a claim because the alleged assaults occurred at a bar off-campus such

that the college “did not exercise control over the context in which the assaults occurred,” not because the alleged

deliberate indifference was not on the basis of sex. See id. at 847. Similarly, Doe v. Columbia College Chicago

(Columbia College I), 299 F. Supp. 3d 939, 955 (N.D. Ill. 2017), aff’d, 933 F.3d 849 (7th Cir. 2019), concerns an

erroneous outcome claim, not a claim of deliberate indifference to peer-on-peer harassment.

Again, this argument does not get to the heart of G.C.’s claim—she does not premise liability

upon Defendants’ failure to prevent this sexual assault, but rather upon the insufficiency of their

investigation and remedial actions after the assault. See, e.g., First Am. Compl. ¶¶ 107–08

(alleging that Defendants’ failed “to investigate A.C.’s report of sexual assault or take any

meaningful corrective action as required by Title IX and the District’s policies” and that such

“failures were clearly unreasonable in light of the known circumstances”); cf. Doe 12 v. Baylor

Univ., 336 F. Supp. 3d 763, 775 (W.D. Tex. 2018) (distinguishing between “post-reporting

claims” related to allegations that the defendant’s “deliberately indifferent response to [the

plaintiffs’] reports deprived them of educational opportunities and benefits provided by the

school” and “heightened-risk claims” related to the defendant’s “discriminatory practices in

handling reports of sexual assault” which “constituted a policy of intentional discrimination that

substantially increased [the p]laintiffs’ risk of being sexually assaulted”). G.C. need not allege

that Defendants stood idle in the face of risks that G.C. would be sexually assaulted that day in

gym class to maintain a claim based upon the insufficiency of Defendants’ responses.

Similarly, the Board argues that G.C. does not allege that Defendants’ actions deprived

her of educational opportunities because she does not allege that she “was subjected to or

vulnerable to harassment or discrimination based on or related to sex or gender after providing

notice to the District of the alleged assault.” Mem. Supp. Mot. Dismiss 12–13. Instead, the

Board argues, it offered to change her gym class and G.C. decided not to return to school. Id. at

13. G.C. responds that her decision to not return to the School does not undermine her claim, as

she need not show that the inadequate investigation in fact caused her to suffer additional

harassment—instead, showing that Defendants’ actions increased her vulnerability to future

harassment may be sufficient. Resp. Mot. Dismiss 24–26. A student’s forced withdrawal from

an education program does not entitle an institution to a defense of “no further harm, therefore

no foul”—increased vulnerability may be sufficient. See Davis, 526 U.S. at 644–45 (holding that

a defendant may be liable if its deliberate indifference “make[s] [students] liable or vulnerable

to” harassment (quotation marks omitted)); Doe v. Galster, 768 F.3d 611, 619–20 (7th Cir. 2014)

(holding that a reasonable jury could find that the plaintiff was subjected to harassment that

denied her equal access to education even though the plaintiff switched school districts); accord

Farmer, 918 F.3d at 1104–05; Joyce v. Wright State Univ., No. 3:17-cv-387, 2018 WL 3009105,

at *9 (S.D. Ohio June 15, 2018).

Regarding the District’s offer to swap out G.C.’s gym teacher, the Board characterizes

this as an opportunity “to remove [G.C.] from her alleged, unidentified harasser,” Mem. Supp.

Mot. Dismiss 12, but the First Amended Complaint characterizes this offer as motivated by

ensuring that G.C. “had a female instructor with her,” not protecting her from her assailants, see

First Am. Compl. ¶ 50.

To the extent Defendants are arguing that, as pleaded, their investigation and remedial

efforts were not clearly unreasonable, the Court disagrees. “Deliberate indifference is a high bar

because [s]chool administrators must continue to enjoy the flexibility they require in disciplinary

decisions unless their response to harassment is clearly unreasonable.” Columbia Coll. II, 933

F.3d at 857 (alteration in original) (quotation marks omitted). This high bar avoids a standard

which would ensure that defendants could “avoid liability only by purging their schools of

actionable peer harassment,” and does not allow victims “to make particular remedial demands.”

Davis, 526 U.S. at 648; see also Gabrielle M. v. Park Forest-Chi. Heights, IL. Sch. Dist. 163,

315 F.3d 817, 825 (7th Cir. 2003) (“Davis disapproved of a standard that would force funding

recipients to suspend or expel every student accused of misconduct.”).

Allegations of a merely negligent investigation are insufficient to allege deliberate

indifference. See Johnson, 972 F.3d at 912 (“A negligent response is not unreasonable, and

therefore will not subject a school to liability.”). For example, when a student-victim was

repeatedly harassed on a bus by other student-perpetrators, Sch. Dist. U-46, 557 F. Supp. 3d at

869, the school’s principal promptly viewed video recordings of the incidents, spoke with the

student-perpetrators and their parents, removed the student-perpetrators from the bus, took steps

to keep them away from the student-victim, observed the student-victim in class for several days,

and provided the student-victim with two weeks of counseling from the school’s social worker,

id. at 874–75. Although one of the student-perpetrators subsequently harassed the student victim

again a few weeks later, id. at 870, the court found that the school’s response was not clearly

unreasonable, id. at 875. In another case, a college issued a no-contact order, interviewed seven

students identified by the victim and perpetrator as witnesses, and concluded about two weeks

later that there was not a preponderance of the evidence against the perpetrator, finding him

“guilty but not guilty.” Pogorzelska v. VanderCook Coll. of Music, 442 F. Supp. 3d 1054, 1063

(N.D. Ill. 2020). The court would have found that investigation was not clearly unreasonable,

but the college subsequently failed to enforce its own no-contact order, such that the plaintiff

alleged a plausible claim that the college’s investigation and response were “clearly unreasonable

under the known circumstances.” Id. at 1063–64.

Further, where freshmen on the football team were allegedly sexually assaulted as part of

a hazing ritual, the school highlighted that it took immediate action after learning of the attacks,

notified school administrators, contacted parents, held a meeting the next morning, and

suspended four student-perpetrators. Doe A v. Plainfield Cmty. Consol. Sch. Dist. 202, No. 21 C

4460, 2023 WL 2428870, at *7 (N.D. Ill. Mar. 9, 2023). The plaintiffs responded by

emphasizing that the football coaches only spoke to the student-victims and not other players, the

defendants did not conduct any type of Title IX investigation and solely referred the matter to the

police, and the defendants failed to provide information about the plaintiffs’ rights under Title IX

and resources available to sexual-assault victims. Id. Noting that “just because the school made

some effort does not necessarily preclude a finding of deliberate indifference,” the court found

that the plaintiffs plausibly alleged deliberate indifference to their reports of sexual assault. Id. at

*8; see also Doe 12, 336 F. Supp. 3d at 776 (finding that the plaintiffs adequately alleged

deliberate indifference where the university “discouraged them from reporting their assaults,”

“misled and lied to [them] about their options for reporting and accommodations,” and

“obstructed [their] access to medical and mental health treatment”).

Here, G.C. alleges that Defendants prejudged the investigation as A.C. was told that the

assault “couldn’t have happened,” Andedo blamed G.C. for being unable “to tell people no,”

Defendants declined to notify the police, and the extent of Andedo’s investigation was to speak

to a few students and Hammer the day that A.C. reported the assault. First Am. Compl. ¶¶ 42–

46. Andedo stated that “something happened” to G.C. but downplayed it as just a “minor error.”

Id. ¶¶ 49–50. The only remediation offered was to change G.C.’s gym teacher and to give her

some at-home counseling services. Id. Only after A.C. took it upon herself to report the incident

to the police did Defendants report an incident of failed supervision to the Illinois Department of

Children and Family Services. Id. ¶¶ 52–53, 55–56. Defendants did not follow their Title IX

and IEP policies and did not provide A.C. with information on those policies. Id. ¶ 64.

Together, these allegations portray a prejudged, rushed, and insufficient investigation and

remediation which: (1) deviated from established procedures; (2) belatedly involved outside

authorities but only after prompting from A.C.’s independent actions; (3) failed to identify

G.C.’s assailants; and (4) provided accommodations which were inadequate to keep G.C. away

from those unknown assailants. Taking these allegations as true and viewing them in the light

most favorable to G.C., the Court finds that G.C. has plausibly alleged that Defendants’ response

was clearly unreasonable under the known circumstances and that Defendants were therefore

deliberately indifferent to the report of G.C.’s assault. See Doe A, 2023 WL 2428870, at *8;

Pogorzelska, 442 F. Supp. 3d at 1063–64; Doe 12, 336 F. Supp. 3d at 776.8

3. ADA and Rehabilitation Act

Turning to G.C.’s disability-based claims, the Board reads the First Amended Complaint

to assert a variety of legal theories, namely peer-to-peer harassment, intentional discrimination,

and failure to accommodate. Mem. Supp. Mot. Dismiss 13–15. G.C. clarifies that she is only

pursuing a theory of intentional discrimination. Resp. Mot. Dismiss 27 (citing First Am. Compl.

¶ 139). The parties assert that the analysis of G.C.’s ADA and Rehabilitation Act claims is

identical given the statutes’ similarities. Id. at 26–27; Mem. Supp. Mot. Dismiss 13. The

Court’s analysis accordingly does not distinguish between the ADA and Rehabilitation Act. See,

e.g., A.H. ex rel. Holzmueller v. Ill. High Sch. Ass’n, 881 F.3d 587, 592 (7th Cir. 2018) (“The

8 When responding to G.C.’s disability-based claims, the Board asserts that G.C. “cannot establish deliberate

indifference where it is undisputed that the District conducted an investigation and instituted supportive measures

even where [G.C.]’s allegations were not substantiated.” Mem. Supp. Mot. Dismiss 14 (citing I. L. v. Hous. Indep.

Sch. Dist., 776 F. App’x 839, 843 (5th Cir. 2019)). Simply conducting some sort of investigation and offering

supportive measures despite that investigation failing to identify a perpetrator or evidence of wrongdoing may not be

sufficient to avoid liability under Title IX—the reasonableness of an investigation depends upon the known

circumstances. See, e.g., Doe v. Sch. Bd. of Broward Cnty., 604 F.3d 1248, 1263 (11th Cir. 2010) (“The Title IX

inquiry is contextual: it does not require school districts to simply do something in response to sexual harassment;

rather, they must respond in a manner that is not clearly unreasonable in light of the known circumstances.”

(quotation marks and emphasis omitted)). Moreover, the Board’s citation to I. L. is distinguishable. In affirming the

grant of summary judgment on the plaintiff’s claim of deliberate indifference, the Fifth Circuit emphasized that the

defendants’ remedial measures “were almost entirely successful in eliminating any contact between the students and

prevented future sexual contact or harassment.” I. L., 776 F. App’x at 843. Here Defendants failed to identify the

perpetrators and future sexual contact or harassment was prevented only by G.C.’s withdrawal from the School, not

Defendants’ investigation or remediation. I. L. does not support the Board’s position.

relevant provisions and implementing regulations of the Rehabilitation Act and the ADA are

materially identical.” (quotation marks omitted)).

To make out a claim of intentional discrimination under either statute, G.C. must

plausibly allege that she was: (1) a qualified person; (2) with a disability; and (3) Defendants

denied her access to a program or activity because of her disability. See Stanek, 783 F.3d at 641;

Jaros v. Ill. Dep’t of Corr., 684 F.3d 667, 672 (7th Cir. 2012); cf. Bostock v. Clayton County, 590

U.S. 644, 658 (2020) (holding that prohibited discrimination occurs when a defendant

“intentionally treats a person worse because of ” a protected characteristic). The Board does not

challenge the sufficiency of G.C.’s allegations that she was qualified to attend the School nor her

allegations that she was disabled. See Mem. Supp. Mot. Dismiss 13–15; First Am. Compl. ¶¶ 29,

143. The Board instead relies upon non-binding authorities to assert that G.C. must show that

Defendants “refused to provide reasonable accommodations for the handicapped plaintiff,” to

maintain a claim of intentional discrimination. See Mem. Supp. Mot. Dismiss 14 (quoting D.A.

ex rel. Latasha A. v. Hous. Indep. Sch. Dist., 629 F.3d 450, 454 (5th Cir. 2010)). The Board’s

citation is inapposite as G.C. is not pursuing a failure-to-accommodate theory. See Resp. Mot.

Dismiss 27.

When arguing that G.C. has failed to plausibly allege “a theory of disability-based

intentional discrimination,” the Board argues that she “has failed to allege what benefits she

sought that were requested and denied based on disability.” Mem. Supp. Mot. Dismiss 14. The

Board posits that the IEP addressed G.C.’s mental and physical disabilities which existed prior to

her sexual assault and then asserts that G.C. does not allege that Defendants “had knowledge of

an ankle injury that qualified [G.C.] as an individual with a disability such that [G.C.] required

accommodation for the ankle injury.” Id. at 14–15. Slipping back into a failure-to-accommodate

theory, the Board argues that G.C.’s “alleged isolation based on an ankle injury is not a failure to

accommodate.” Id. at 15. Again, G.C. is not pursuing a failure-to-accommodate theory. See

Resp. Mot. Dismiss 27. The benefits which she sought that were denied on the basis of her

disabilities are “the right to participate in school activities” and “educational opportunities.” Id.;

see also First Am. Compl. ¶ 124 (“Section 504 guarantees G.C. the right to participate, along

with nondisabled students, in academic, nonacademic and extracurricular activities . . . and

services to the maximum extent appropriate to her needs.”). Specifically, she notes that the

disparate treatment she suffered “prevented her from attending public school.” Resp. Mot.

Dismiss 29. The Board’s assertion that G.C. has failed to identify the benefits which she was

denied is incorrect.

Alleging a plausible claim of disability discrimination does not require much of a

plaintiff. See Jaros, 684 F.3d at 672 (“Plausibility is not an exacting standard . . . .”). G.C.

alleges that those charged with investigating her report of sexual assault blamed her disability as

a contributing cause to her assault. See First Am. Compl. ¶ 43 (“Andedo stated G.C. received

social skills classes so she ‘just probably needed social skills classes to learn what “no spots” are

and how to tell people no.’”). Defendants were obligated to engage G.C.’s IEP team about her

report yet failed to do so. Id. ¶ 64. She further alleges that Defendants’ Title IX policies were

followed in five or six other cases of reported sexual assault which did not involve a disabled

victim, yet those policies were not followed for her report. Id. ¶¶ 65–66. Together, these facts

plausibly allege that G.C. was intentionally subjected to worse treatment—in the form of a

comparatively shabby investigation of her report of sexual assault—because of her disabilities

and that such differential treatment denied her of educational opportunities. See, e.g., Doe v.

McHenry Cnty. Coll., No. 17 cv 4247, 2020 WL 5209834, at *1, 4 (N.D. Ill. Sept. 1, 2020)

(finding sufficient allegation of intentional discrimination under the ADA where an autistic

student alleged that she did not realize that her physical contact with other students was

nonconsensual and that the defendants “rejected her request to be interviewed by a professional

with experience with autism” and upheld sanctions which were imposed against her). At this

stage of the case and taking those allegations as true, G.C. has plausibly alleged that Defendants

intentionally discriminated against her on the basis of her disabilities. See Stanek, 783 F.3d at

641; Jaros, 684 F.3d at 672.

CONCLUSION

Accordingly, Defendant Rock Island Board of Education’s Motion to Dismiss Plaintiff’s

Amended Complaint, ECF No. 8, is GRANTED IN PART and DENIED IN PART. Plaintiff

G.C.’s claim of negligence is DISMISSED WITHOUT PREJUDICE, and she is granted leave to

file an amended complaint by October 18, 2024.

Entered this 27th day of September, 2024.

s/ Sara Darrow

SARA DARROW

CHIEF UNITED STATES DISTRICT JUDGE