Doe v. Bd. of Educ. of Hononegah School Dist. 207, 93 C 20006.

• Decision Date: 30 September 1993
• Docket Number: No. 93 C 20006.,93 C 20006.
• Citation: 833 F. Supp. 1366
• Parties: Jane DOE, Plaintiff, v. BOARD OF EDUCATION OF HONONEGAH COMMUNITY HIGH SCHOOL DISTRICT # 207, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

833 F. Supp. 1366

Jane DOE, Plaintiff, v. BOARD OF EDUCATION OF HONONEGAH COMMUNITY HIGH SCHOOL DISTRICT # 207, et al., Defendants.

No. 93 C 20006.

United States District Court, N.D. Illinois, W.D.

September 30, 1993.

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Frank A. Perrecone, Lawrence J. Ferolie & Associates, Ltd., Rockford, IL, for plaintiff.

Robert H. Ellch, Scariano, Kula, Ellch & Himes Chtd., Todd K. Hayden, Chicago Heights, IL, Harold L. Turner, Turner & McGraw, Joseph G. McGraw, Turner & McGraw, Rockford, IL, David W. McArdle, Zukowski, Rogers, Flood & McArdle, Crystal Lake, IL, William W. Kurnik, Kurnik, Cipolla, Stephenson & Barasha, Arlington Heights, IL, Michael J. Duggan, Klein, Thorpe & Jenkins, Ltd., Paul E. Lehner, Schuyler, Roche & Zwirner, Chicago, IL, Thomas E. Greenwald, Oliver, Close, Worden & Greenwald, Rockford, IL, Jerome A. Vinkler, Connelly, Mustes, Palmer & Schroeder, Geneva, IL, for defendants.

ORDER

REINHARD, District Judge.

INTRODUCTION

Plaintiff, Jane Doe, filed a fourth amended, fourteen-count complaint against various members of the Hononegah Community High School District 207 school board, the school district and David Davison in his individual and official capacity as principal, assistant superintendent and superintendent, Terry Spurlock in his individual and official capacity as assistant principal and principal, Paul Kern in his individual and official capacity as superintendent,¹ Kerry Muldowney, Robert Maloney, Lucy Reardon-Vaubel and Marion Fiorillo in their individual capacities as counselors. The complaint essentially seeks money damages and attorneys fees (42 U.S.C. § 1988) for alleged deprivations of plaintiff's due process rights under the fourteenth amendment (42 U.S.C. § 1983) and for obstruction of justice and denial of equal protection (42 U.S.C. §§ 1985(2), (3)). Jurisdiction is based on 28 U.S.C. § 1343(a)(3). Defendants moved to dismiss the entire fourth amended complaint.

FACTS

The fourth amended complaint alleges the following. Plaintiff, then a minor, female student at the high school, was sexually abused on more than one occasion by a teacher during the 1985-86 and 1986-87 school years. The last such abuse occurred in 1986.²

The teacher was employed by the school district from 1981 to 1991. During the 1981-82 school year, the three school administrators (Davison, Kern and Spurlock) knew of sexual misconduct committed by the teacher against an eighteen-year-old female student. Davison cited the teacher in writing for inappropriate sexual behavior and warned him that similar future action would be cause for his discharge.

During the 1983-84 school year, the teacher sexually abused a minor female student. An unidentified counselor, who reasonably suspected that the teacher was involved in sexual abuse, confronted the student, but she did not admit the abuse. Also in 1983-84, another minor female student was abused by the teacher, and another teacher knew of the incident. In 1984-85, a minor student reported to a high school teacher that she was a victim of multiple instances of sexual abuse by the teacher during that school year. The high school teacher reported this information to Kern but no action was taken against the teacher. Furthermore, in 1984-85, Davison, Kern and Spurlock knew of multiple charges of sexual misconduct during that year involving the teacher and yet another minor, female student. A counselor and the victim's mother reported these charges to Kern, Davison and Spurlock, and the counselor advised Kern that he believed the charges were true. No action was taken against the teacher.

In 1987-88, a parent of a minor, female student told Kern that the teacher was touching and harassing his daughter. The student also told Kern about the sexual misconduct, and Kern told the student he was surprised by this type of report and had never before heard of similar incidents involving the teacher. During the 1990-91 school year, another minor, female student told a counselor she was the victim of sexual misconduct by the teacher that year. Despite urging by the counselor to file a complaint, the student refused to do so. In March 1991, the teacher was seen peering into the girls' locker room while minor, female students were present. Davison and Spurlock knew of this yet took no action against the teacher. In June 1991, Davison told a newspaper reporter that he had no knowledge of any allegations of sexual misconduct against the teacher.

Following the first five alleged instances of abuse, the teacher's conduct continued unchecked by defendants. This fostered a climate to flourish in which female students were sexually abused by the teacher. The teacher sexually abused at least thirteen other minor, female students until 1991.

The school board delegated to Kern and other school administrators the responsibility of investigating all charges of teacher sexual misconduct with minor students. The school district, with the ratification or acquiescence of the school board, delegated to Kern authority to make final decisions on its behalf concerning charges of teacher sexual misconduct with students. Furthermore, the school board knew in 1985 of the multiple acts of sexual abuse by the teacher during the 1984-85 school year and ratified or acquiesced in Kern's investigation and determination that those charges were untrue. Prior to the misconduct directed at plaintiff, and despite the fact that another teacher, at least three or four guidance counselors, the assistant principal, principal, superintendent and school board all had reasonable cause to believe that the teacher had committed numerous acts of sexual abuse against minor, female students over a long period of time, no information was ever reported to the Illinois Department of Children and Family Services as required by the Abused and Neglected Child Reporting Act, see 325 ILCS 5/1 et seq. (1993) (formerly Ill.Rev.Stat., ch. 23, par. 2051 et seq. (1991)), and little, if anything, was done to stop the teacher. Failing to report instances of suspected teacher sexual misconduct against minor students was the practice and standard operating procedure of the school district.

Counts I, II, and III set forth specific allegations against Davison, Spurlock and Kern's estate respectively. It is alleged that Davison and Spurlock "fostered a climate to flourish in which female students were sexually abused" in that they: (1) failed to train teachers, counselors and school personnel to report suspected sexual abuse to the Illinois Department of Children and Family Services (DCFS); (2) purposely failed to report suspected minor sexual abuse to DCFS; (3) failed to invoke disciplinary proceedings against the teacher; (4) regarding certain occurrences, ratified or acquiesced in Kern's actions of discouraging the victims, family members or confidants from pursuing sexual misconduct charges by siding with the teacher, suggesting the victims were fantasizing or fabricating, and suggesting the victims would be discredited or humiliated if the charges were made public; (5) ratified or acquiesced in Kern's failure to undertake discharge proceedings pursuant to Illinois law or to recommend such to the school board; (6) concealed knowledge of the teacher's past sexual misconduct with another student from one of the victims and her mother; (7) ratified or acquiesced in Kern's concealment of the same information referred to in (6); (8) concealed knowledge from the same victim and her mother that the teacher had previously received a written warning for inappropriate behavior; (9) concealed knowledge from the same victim and her mother of the existence of the "Abused and Neglected Child Reporting Act;" and (10) ratified or acquiesced in Kern's concealment of the "Abused and Neglected Child Reporting Act."

As to Kern, it is alleged that he fostered a climate to flourish in which female students were sexually abused by failing to report suspected minor sexual abuse to DCFS, discouraging the victim, family members or confidants from pursuing sexual misconduct charges, failing to undertake discharge proceedings or recommending the school board do so, concealing knowledge of the teacher's past sexual misconduct and charges of sexual misconduct, concealing the fact that the teacher had been previously warned in writing regarding inappropriate behavior, misleading or deceiving a victim and her mother that the teacher would be disciplined and that action would be taken to prevent his future misconduct, concealing the existence of the abuse and neglect reporting act, lying to a victim that he had never heard of similar allegations about the teacher and failing to train teachers, counselors and school personnel to report suspected sexual abuse to DCFS.

The complaint further alleges as to Davison and Spurlock that their reckless or deliberate indifference in disregarding state law by refusing to report the teacher to DCFS and refusing to require counselors to do so violated plaintiff's due process rights to have state law enforced for her protection. It further alleges that these two defendants violated her due process rights to have an investigation conducted by law enforcement and that their failure to intervene and protect plaintiff, when they knew or should have known that Kern took no effective action to stop the teacher, created a danger to plaintiff and increased her risk of harm which ultimately led to plaintiff being victimized by the teacher. Regarding Kern, the complaint asserts by refusing to report the teacher to DCFS and by refusing to require counselors to do so, Kern denied plaintiff her due process right to have state law enforced for her protection and to have an investigation conducted. It is further alleged that Kern's reckless or deliberate indifference created a danger to plaintiff that increased her risk of harm which ultimately led to plaintiff being abused.

Count IV, against...