Doe v. Bd. of Educ. of Chi.

• Decision Date: 24 March 2020
• Docket Number: 19 C 00263
• Citation: 611 F.Supp.3d 516
• Parties: Jane DOE and John Doe, as Guardians and Parents and Next Friends of James Doe, a Disabled Person, Plaintiffs, v. BOARD OF EDUCATION OF the CITY OF CHICAGO; Hilario Velarde; and Darius Reynolds, Defendants.
• Court: U.S. District Court — Northern District of Illinois

611 F.Supp.3d 516

Jane DOE and John Doe, as Guardians and Parents and Next Friends of James Doe, a Disabled Person, Plaintiffs,

v.BOARD OF EDUCATION OF the CITY OF CHICAGO; Hilario Velarde; and Darius Reynolds, Defendants.

No. 19 C 00263

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

Signed March 24, 2020

James Charles Pullos, Clifford Law Offices, P.C., Chicago, IL, for Plaintiffs.

Helena Lee Burton Wright, Elizabeth Kathleen Barton, Lindsey Erin Goldberg, Board of Education of the City of Chicago, Christina Jaremus, Seyfarth Shaw, LLP, Susan Jane Best, Erin D. Fowler, Nicole Beth Bazer, Franczek Radelet P.C., Jonathan Booker Cifonelli, Jackson Lewis P.C., Zeke Nathaniel Katz, Pugh, Jones & Johnson, Chicago, IL, for Defendants

MEMORANDUM OPINION AND ORDER

Honorable Edmond E. Chang, United States District Judge

The parents of a disabled student at Ray Graham Training Center High School in Chicago have brought this lawsuit on their son's behalf.¹ See R. 19,² Am. Compl. ¶¶ 5-7, 15-16. The Plaintiffs allege that a school employee sexually abused their son, and they bring several federal and state law claims against the Chicago Board of Education, as well as school employees Hilario Velarde and Darius Reynolds.³

Specifically, the Plaintiffs claim that the Board discriminated against the student (who is going by "James Doe" on the public docket) in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq. (Count 1); Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (Count 2); and Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132 (Count 3). Against the alleged abuser (Velarde), the Plaintiffs bring equal protection (Count 4), Fourth Amendment (Count 5), and substantive due process (Count 6) claims. Against Reynolds, who was a special-education assistant, the Plaintiffs bring a failure-to-intervene claim (Count 10). In addition to the federal claims, the Plaintiffs bring state-law claims for negligence (Count 7) and willful and wanton conduct (Count 8) against the Board, as well as a battery claim against both the Board and Velarde (Count 9).

The Defendants now seek to dismiss the Amended Complaint for failure to adequately state a claim. Fed. R. Civ. P. 12(b)(6). See generally R. 24; R. 27; R. 37. For the reasons discussed below, the Board's and Velarde's motions are denied in part and granted in part, and Reynolds' motion is denied.

I. Background

For purposes of this motion, the Court accepts as true the factual allegations in the complaint. Erickson v. Pardus , 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). James Doe is an adult but was a student at Chicago's Ray Graham Training Center High School, where he received specialized education for his physical and intellectual disabilities, including cerebral palsy. Am. Compl. ¶¶ 7, 15, 17. As a student at Ray Graham, James had an individualized education plan (commonly known as an "IEP") to address his disabilities, which "required physical assistance to perform many acts of daily living, including using the bathroom ...." Id. ¶¶ 17-18. Defendant Velarde, who worked at the school as a Special Education Classroom Assistant, was assigned to provide James with physical assistance. Id. ¶ 20. Defendant Reynolds also worked at Ray Graham as a Special Education Classroom Assistant. Id. ¶ 12.

On a late March morning in 2018, Velarde and Reynolds gave James a shower and Velarde touched James' penis multiple times. Am. Compl. ¶¶ 21-22. Reynolds saw this happen but did not do anything to stop it. Id. ¶ 22. More than two months later, the school administration notified the Chicago Police Department of allegations that James Doe had suffered sexual abuse. Id. ¶ 24. Reynolds then revealed to police that he had also observed Velarde touching James' penis on another occasion. Id. ¶ 25. The Plaintiffs filed this lawsuit against the Board, Reynolds, and Velarde less than a year later. R. 1; R. 19.

II. Legal Standard

Under Federal Rule of Civil Procedure 8(a)(2), a complaint generally need only include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This short and plain statement must "give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (cleaned up).⁴ The Seventh Circuit has explained that this rule "reflects a liberal notice pleading regime, which is intended to ‘focus litigation on the merits of a claim’ rather than on technicalities that might keep plaintiffs out of court." Brooks v. Ross , 578 F.3d 574, 580 (7th Cir. 2009) (quoting Swierkiewicz v. Sorema N.A. , 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) ).

"A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state a claim upon which relief may be granted." Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7 , 570 F.3d 811, 820 (7th Cir. 2009). "[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (cleaned up). These allegations "must be enough to raise a right to relief above the speculative level." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. The allegations that are entitled to the assumption of truth are those that are factual, rather than mere legal conclusions. Iqbal , 556 U.S. at 678-79, 129 S.Ct. 1937.

III. Analysis

A. Title IX (Count 1)

The Plaintiffs' first claim is for sex discrimination under Title IX, 20 U.S.C. § 1681, et seq. "Title IX prohibits sex discrimination by recipients of federal education funding." Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005). See also 20 U.S.C. § 1681(a) ("[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 education program or activity receiving Federal financial assistance."). Title IX's ban on "discrimination" prohibits a teacher or other school employee from sexually harassing or abusing a student. See, e.g. , Franklin v. Gwinnett Cty. Pub. Schs. , 503 U.S. 60, 75, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992) ("[W]hen a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor ‘discriminate[s]’ on the basis of sex .... [T]he same rule should apply when a teacher sexually harasses and abuses a student." (cleaned up)); Mary M. v. North Lawrence Cmty. Sch. Corp. , 131 F.3d 1220, 1224-25 (7th Cir. 1997) (analyzing a student's allegations of sexual abuse by a cafeteria worker as a Title IX claim). But because Title IX does not allow for vicarious liability, students who are sexually harassed by school employees are only entitled to recover damages against the school district if a school official with "authority to institute corrective measures" had actual knowledge of, and was deliberately indifferent to, the harassment. Doe v. St. Francis Sch. Dist. , 694 F.3d 869, 871 (7th Cir. 2012). If that hurdle is cleared, a plaintiff in a Title IX case must also adequately allege that (1) the educational institution received federal funding; (2) the harassment was based on sex; and (3) the harassment was so pervasive or severe that it altered the conditions of the plaintiff's education, or deprived the plaintiff of access to educational opportunities or benefits provided by the school. See North Lawrence Cmty. Sch. Corp. , 131 F.3d at 1228.

Here, the Board does not dispute that it received federal funding or that the alleged harassment was based on sex. See R. 27, Bd.'s Br. at 4-9. Instead, the Board argues that the Plaintiffs failed to adequately allege that "a school official who ... had authority to institute corrective measures on the Board's behalf had actual notice of and was deliberately indifferent to Velarde's alleged sexual misconduct." Id. at 4. The Board also contends that there are insufficient allegations that James Doe "was deprived of educational opportunities as a result of the sexual misconduct." Id. at 4.

Taking the arguments in reverse order, the Board is wrong that the alleged abuse was not severe or pervasive enough to alter James' educational opportunities. Whether misconduct "rises to the level of actionable harassment ... depends on a constellation of surrounding circumstances, expectations, and relationships[.]" Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ. , 526 U.S. 629, 651, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). There is a distinction between teacher -on-student harassment and peer harassment: "[t]he relationship between the harasser and the victim necessarily affects the extent to which the misconduct can be said to breach Title IX's guarantee of equal access to educational benefits ...." Davis , 526 U.S. at 653, 119 S.Ct. 1661 (cleaned up). In fact, "courts recognize that harassment by a teacher inherently harms students and affects their educational experience: ‘No one questions that a student suffers extraordinary harm when subjected to sexual harassment and abuse by a teacher, and that the teacher's conduct is reprehensible and undermines the basic purposes of the educational system.’ " Doe I v. Bd. of Educ. of City of Chi. , 364 F. Supp. 3d 849, 861 (N.D. Ill. 2019) (quoting Gebser v. Lago Vista Indep. Sch. Dist. , 524 U.S. 274, 292, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998) ).

Here, the Plaintiffs allege that "[t]he discrimination and harassment was so severe and pervasive that it altered the conditions of James Doe's education." Am. Compl. ¶ 53. That is admittedly more a statement of conclusion rather than a statement of fact. But there are factual allegations that support it. First, Velarde occupied a position of power in relation to James: Velarde was the classroom assistant and James was the student. Id. ¶¶ 17-18, 20. Sure,...