410 F.Supp. 1214 (N.D.Ill. 1976), 74 C 278, Picha v. Wielgos

Docket Nº:74 C 278.
Citation:410 F.Supp. 1214
Party Name:Renee PICHA, by her next friend Christine Picha, Plaintiff, v. Raymond WIELGOS, Principal of Dirksen Junior High School District No. 149, et al., Defendants.
Case Date:March 04, 1976
Court:United States District Courts, 7th Circuit, Northern District of Illinois

Page 1214

410 F.Supp. 1214 (N.D.Ill. 1976)

Renee PICHA, by her next friend Christine Picha, Plaintiff,


Raymond WIELGOS, Principal of Dirksen Junior High School District No. 149, et al., Defendants.

No. 74 C 278.

United States District Court, N.D. Illinois, Eastern Division.

March 4, 1976

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[Copyrighted Material Omitted]

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Kenneth Kandaras, Cook County Legal Assistance Foundation, Inc., Patrick A. Keenan, Chicago, Ill., for plaintiff.

Mitchell J. Overgaard, Haffner, Grow, Overgaard & Berghoff, Chicago, Ill., for school defendants.

Thomas R. Bobak, Calumet City, Ill., Howard H. Rosenfeld, Chicago, Ill., for police defendants.

DePaul Law Clinic and Leonard D. Silk, Senior Law Student, Chicago, Ill., of counsel.


FLAUM, District Judge:

At the close of evidence in this civil rights case, a motion for a directed verdict by defendant school officials pends before the court. There is also a dispute as to how the jury should be instructed regarding the standard to be applied to searches of junior high school students. While the court is not in a position to make findings of fact under Federal Rule of Civil Procedure 52(a), it must characterize the evidence, and determine the presence of contradictions in the evidence, in order to resolve the matters before it.

It is undisputed in the testimony given at trial that in November, 1973 the defendant school principal, Raymond Wielgos, received a phone call which led him to suspect that the thirteen year old plaintiff and two other girls in his school possessed illegal drugs. The principal was advised by his superintendent to call the police, which he did. When the police arrived each of the girls was separately searched by the school nurse, Margaret Carlson, and the school psychologist, Ruth Golber, in order to establish whether any of the three students possessed drugs. No drugs were found. A conflict in the testimony exists as to what the plaintiff's state of undress was at each particular point of the search, and as to the duration of the search. The plaintiff, Renee Picha, brought this 42 U.S.C. s 1983 suit against the three school officials and the two policemen on the theory that in the course of the incident the defendants violated her civil rights.

The basis of the motion for a directed verdict made by the school defendants is that under Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975) they are immune from liability. They contend that there has been no evidence of malice, and that the constitutional rights of the plaintiff, vis a vis the school defendants, were either not violated, or were not so settled that mere disregard of them could strip them of immunity. The court finds that there is sufficient evidence, given the nature of the incident, and the testimony of the school officials, for the jury to consider the issue of malice in the Wood sense. The court holds that Renee Picha possessed settled, undisputed constitutional rights, which based on the evidence in this case would permit a jury to consider whether these rights had been violated. A delineation of the nature of these rights, and their relation to the in

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loco parentis doctrine that works in favor of Illinois school officials, is necessary to arrive at a proper jury instruction for the prospect of Wood immunity.


Illinois and many other states have statutes which confer upon school officials the status of in loco parentis regarding their students. 122 Ill.Rev. Stats. ss 24--24, 34--84a. Illinois has held that this status creates certain advantages for school officials regarding the standard of common law tort intent which must be applied in litigation brought against them by students. At least in situations which a school official's role of keeping discipline is at issue, he cannot be liable in tort for mere negligence, but must act in wanton disregard of the safety of his students. Chilton v. Cook County School District, 26 Ill.App.3d 459, 325 N.E.2d 666 (1st Dist. 1975); Clay v. Chicago Board of Education, 22 Ill.App.3d 437, 318 N.E.2d 153 (1st Dist. 1974); Kobylanski v. Chicago Board of Education, 22 Ill.App.3d 551, 317 N.E.2d 174 (1st Dist. 1974). In this respect, Illinois equates the nature of tort liability of teachers exactly with the common law tort liability that parents may have toward their children. See People v. Ball, 58 Ill.2d 36, 317 N.E.2d 54 (1974) (where teacher committed battery on student for the professed purpose of discipline, the teacher was subject to criminal prosecution if he had inflicted a more severe punishment than the actual parent would have had a right to). Illinois law is unanimous on this score. The only area of ambiguity is exactly what sort of behavior by the teacher is to be deemed related to 'discipline' so as to pick up the extra in loco parentis latitude in tort usually afforded only to parents. The Illinois Supreme Court has suggested that a school official's role in appraising danger to the student body where information indicated that one of the students had a gun comes under the statutory in loco parentis banner. In Re Boykin, 39 Ill.2d 617, 237 N.E.2d 460, 462 (1968). It thus appears to be the state law in Illinois that a principal has the same latitude, in tort, to search a student for something believed to be dangerous to the student or the student body, as would the student's actual parent.

One question presented by the motion for a directed verdict is whether the Illinois doctrine can provide a limitation of 42 U.S.C. s 1983 tort liability analogous to what it has done with the common law tort liability of teachers, as expressed by statute. See Chilton v. Cook County School District, supra. The issue, however, ultimately is one of the supremacy clause and of the obligation of the states to refrain from enacting laws which smother constitutional rights. The issue was answered before November 1973, the date of the instant occurrence.

The activities of a principal cum parent must be considered as the activities of a state official, giving rise to the constraints which flow from the Bill of Rights. A natural parent could oblige his child to salute the flag in the morning at 8:00 A.M., on penalty of loss of breakfast and dinner, without being subject to a civil rights suit. A schoolteacher, however, could not enforce the same commandment without violating the student's First Amendment rights. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). Similarly, punishment by school officials has been held to be constitutional as long as it was not arbitrary or unreasonable in its severity, Boykin v. Fairfield Board of Education, 492 F.2d 697 (5th Cir. 1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1350, 43 L.Ed.2d 438, and corporal punishment while not per se violative of the Constitution, in a school setting, may indeed constitute cruel and unusual punishment prohibited by the Eighth Amendment, Bramlet v. Wilson, 495 F.2d 714 (8th Cir. 1974); cf. Nelson v. Heyne, 491 F.2d 352 (7th Cir. 1974); cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1975)

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(medium security boys correctional school), or be subject to a constitutional test of rational relation to a legitimate state end. Ingraham v. Wright, 525 F.2d 909 (5th Cir. 1976).

Most federal cases have not addressed the loco parentis question in determining whether interferences with constitutional rights can take place in school settings. One that did indicated that regulations for students' length of hair did not related automatically to the disciplinary function accorded to the in loco parentis authority of the relevant state statute:

'It is clear that the 'in loco parentis' section of the Pennsylvania School Code (24 P.S. s 13--1317) was never intended to invest the schools with all the authority of parents over their minor children, but only such control as is necessary to prevent infractions of discipline and interference with the educational process.' Axtell v. LaPenna, 323 F.Supp. 1077, 1080 (W.D.PA. 1971).

Cases that have not explicitly considered the in loco parentis status that may be supplied by statute have made exactly the same analysis, allowing school officials a latitude as against the civil rights of students which takes into account the disciplinary, and educational concerns that inhere in a school setting. 1 For that reason, these cases may be deemed to have already deferred as much to school authority as they would in the event of law comparable to that in Illinois or Pennsylvania. Following that perspective, 42 U.S.C. s 1983 may be deemed in conflict with any broader construction of in loco parentis authority, a conflict which state law must lose by virtue of the Supremacy Clause of the...

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