The Illinois Appellate Court recently held that a superintendent, principal, and board of education were immune from liability for a parent’s claims regarding the alleged bullying of her daughter. In Hascall v. Williams, Cooper and Urbana School District No. 116 Board of Education, a mother and her daughter filed an 11-count complaint in state court against a superintendent, principal, and the Urbana School District No. 116 Board of Education for alleged violations of the Illinois School Code, fraud, intentional infliction of emotional distress, and retaliation in relation to their response to the student-plaintiffs’ alleged bullying. According to the complaint, the fourth-grade student plaintiff’s mother reported to the school’s principal that three other students had bullied the student-plaintiff since kindergarten, and requested that the student be reassigned to a different fourth-grade classroom. That same day, the principal sent a letter to the mother assuring her that they would address the situation with the other female students and notify their parents, but the principal did not reassign her to a different classroom. The mother also attended a meeting with school officials, where she was assured that the students’ parents would be contacted. Months later, the three female students allegedly verbally harassed, threatened, and intimidated the student-plaintiff in the bathroom. The student-plaintiff’s mother contacted the police, and the following day the principal again advised her that she would contact the student’s parents and “take appropriate disciplinary action.” A month later the female students again physically and verbally harassed and threatened the student-plaintiff in the bathroom, and her mother subsequently reported this incident to the police. A police officer then contacted the parents of the alleged harassers, who reported never having been told that their children had bullied another student.
The School District Defendants argued that they were immune from liability under Section 2-201 and 2-109 of the Local Governmental and Governmental Employees Tort Immunity Act. Section 2-201 of the Tort Immunity Act protects a public employee serving in a position involving the determination of policy or the exercise of discretion from liability for an injury resulting from his or her “act or omission in determining policy when acting in the exercise of such discretion, even though abused.” Section 2-109 states that “a local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable.”
To support its claims under the Tort Immunity Act, the defendants attached affidavits from the superintendent and the principal discussing their roles in determining policy, exercising discretion, and implementing the Board’s bullying policy, information that was relevant to the determination of whether the particular sections of the Tort Immunity Act applied to the employees and Board’s alleged actions or omissions. The Appellate Court upheld the dismissal of the plaintiffs’ complaint, finding that the defendants were indeed immune under Sections 2-201 and 2-109 of the Tort Immunity Act. The court found that, because the Board’s policy on bullying did not mandate a particular response under a particular set of circumstances, the determination of whether bullying had occurred, as well as the appropriate consequences and remedial action imposed, was a discretionary act. The court found that the acts or omissions of which plaintiffs complained constituted discretionary acts and policy determinations, not ministerial acts, providing the employees and the Board of Education the immunity protections of Sections 2-201 and 2-109 of the Act. Notably, the court stated that “[w]hile we are sympathetic to plaintiffs' claims and acknowledge the seeming harshness of the result, we are obligated to follow our supreme court's interpretation of the Tort Immunity Act and find defendants are immune to liability for the alleged acts or omissions.”
Courts in other jurisdictions have also addressed student bullying issues this past summer. For example, in Morrow v Balaski, the U.S. Court of Appeals for the Third Circuit ruled that a school district did not violate the substantive due process rights of students who were bullied on the basis of race by fellow students. The plaintiffs claimed that the school officials violated the victimized students’ constitutional rights by failing to protect them from physical assaults, harassment, and intimidation. The court found that the plaintiffs failed to establish the special relationship or the state-created danger that must exist before a constitutional duty to protect arises under the Fourteenth Amendment. The court stated that public schools generally do not have a “constitutional” duty to protect students from private actors.
The U.S. Court of Appeals for the Eleventh Circuit also ruled this summer in Long v. Murray County School District that a school district was not liable under Section 504 of the Rehabilitation Act of 1973 or the Americans with Disabilities Act for a student’s suicide because it was not deliberately indifferent to the peer harassment of that student. The court upheld the lower court’s ruling that while the student with disabilities likely was subjected to severe and pervasive bullying throughout his high school career, the school district responded promptly every time school administrators were alerted that the teen had been bullied. While the court noted that the district should have done more to address the disability harassment, it found that it did not demonstrate deliberate indifference to the student’s bullying, and that the district officials could have reasonably believed that their efforts to combat harassment were succeeding.