By: Brittany Flaherty Theis
Earlier this week, the First District of the Illinois Appellate Court issued an opinion in Castillo v. Board of Education of City of the Chicago, 2018 IL App (1st) 171053. In Castillo, a female high school student (“Castillo”) and her family sued the Board of Education of the City of Chicago (the “Board” or the “District”) after a fellow student (“Martinez”) physically attacked her off-campus. Castillo alleged that the school district failed to protect her from on-campus harassment by Martinez as well as the subsequent off-campus attack. The trial court held that the Board was immune from suit, which the appellate court affirmed in a decision that is discussed more fully below.
In the lawsuit, Castillo alleged that Martinez physically attacked her off-campus, but also that, before the off-campus attack, Martinez had attacked Castillo on school grounds, in front of school officials. One such incident was alleged to have happened earlier in the day of the off-campus attack. Castillo also alleged that her mother called the school several times over the preceding two years about Martinez harassing Castillo at school. In pertinent part, “Castillo alleged that the Board had been negligent by allowing Martinez to remain a student despite her conduct, failing to prevent Martinez’s harassment or the attack by expelling her, calling the police or the girls’ parents, or providing a safe place on school grounds for Castillo to wait and avoid Martinez; and failing to warn Castillo of Martinez’s planned attack.”
The appellate court divided the allegations into two categories:
(1) the Board’s failure to protect Castillo from Martinez’s harassment on school property, and
(2) Martinez’s off-campus attack on Castillo.
Regarding the first category, Castillo argued that the District’s failure to discipline Martinez for her on-campus harassment violated the bullying prevention statute from the School Code, as well as the Board’s anti-bullying policy.
The trial court held that the Board was immune under section 2-201 of the Local Governmental and Government Employees Tort Immunity Act (745 ILCS 10/2-201), which states 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.” Section 2-201 applies to employees performing discretionary functions, not acts that are merely ministerial, requiring no discretion by the employee. The appellate court determined that implementation of the anti-bulling policy requires “both discretion and decision-making by school officials, at every level. Even as it defines bullying behavior, it cautions that the list is ‘illustrative and non-exhaustive’ and directs schools officials to consider ‘the student’s intent, the frequency or recurrence of the inappropriate behavior, and whether there are power imbalances between the students involved.” Similarly, regarding whether and how to intervene, investigate, and impose discipline, the policy directs school officials to make discretionary decisions.
The Board responded to the alleged failure to prevent the off-campus attack by citing two cases for the proposition that “school officials are immune from suit when a student is harmed off school property, even if the school officials knew that violence was likely.” In those cases, the courts held that school boards were immune from claims that they should have protected students after school and off-campus because such actions would amount to “police protection,” which pursuant to the police protection clause of section 4-102, public entities like school districts are not required to provide. (745 See ILCS 10/4-102 regarding police protection immunity.) Although Castillo argued that the actions she claims the school should have taken to protect her were “supervisory” and not “police protection,” the appellate court disagreed and affirmed the trial court’s decision that the Board was protected by statutory immunity.
The School District’s conduct in this case was protected by statutory immunity. Many factors impact whether a Board member or school district administrator’s conduct is protected by statutory immunity. The attorneys at Whitt Law LLC have many years of experience in litigation involving statutory immunity, as well as significant experience handling anti-bullying and discrimination matters involving both students and staff. Please contact James Dougherty with inquiries related to potential or pending litigation and Brittany Flaherty Theis with inquiries regarding anti-bullying policies or claims of discrimination, or with questions regarding the Castillo case.
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