Cook County Record

Thursday, December 12, 2019

Illinois appeals court says Chicago Board of Education not liable for off-campus attack

By Charmaine Little | May 16, 2018


CHICAGO — An Illinois appellate panel has ruled the law shields the Chicago Board of Education from a lawsuit involving a high school student who allegedly was attacked by another student off campus, according to a decision filed on April 24 in the Illinois First District Appellate Court.

Justice Michael B. Hyman delivered the decision. Presiding Justice P. Scott Neville Jr. and Justice Mary Anne Mason concurred.

High school student Elizabeth Castillo and her family had appealed a decision by a Cook County judge, who had ruled the board could not be held liable after another student, Estrella Martinez, allegedly had attacked her off school grounds, according to the appellate court’s decision.

Justice Michael B. Hyman

The Castillo family claimed in their suit the board had violated the state’s bullying-prevention statute by failing to discipline Martinez for alleged on-campus harassment. The family further claimed the board was also liable for the off-campus altercation because it “should have protected [Castillo] through ‘supervisory’ actions, such as calling parents, calling the police or allowing Castillo to remain at the school to avoid Martinez,” according to the appellate court’s decision.

Additionally, the Castillo family alleged the board had gotten rid of evidence that may have shown Martinez had been harassing Castillo.

The trial court, however, sided with the board on all three counts, finding the board was immune from the lawsuit under Section 2.201 of the Local Governmental and Governmental Employees Tort Immunity Act.

The act stipulates 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,’” Hyman wrote in the decision.

The Castillo family, however, disputed the trial court’s decision and argued immunity under Section 2-201 exclusively applies to “policy-making discretion,” not to the “implementation of policy.”

However, the appellate panel disagreed, noting courts have “repeatedly rejected” that argument and have granted Section 2-201 immunity to school officials who have put into place anti-bullying polices.

And the appellate justices went further, ruling the board did not violate the anti-bullying statute.

“This statute only mandates that every school district create a policy on bullying; it does not mandate that a school respond to a particular instance of bullying in a particular way,” Hyman wrote in the decision. “The board complied with the statute by creating an anti-bullying policy, and so Castillo cannot evade Section 2-201 immunity by relying on the statute alone.”

The panel also affirmed the trial court’s decision regarding the off-campus altercation. The board had argued it is not required to “provide [a] police protection service.” The Castillo family, however, claimed the board is supposed to serve as a “supervisory” entity, which allegedly means it should have prevented the altercation. But Castillo and her family failed to sway the panel.

“[M]any of the ‘supervisory’ actions the board allegedly could have taken inevitably slide into the area of school discipline, which, as discussed, is covered by Section 2-201 immunity,” Hyman wrote in the decision.

Lastly, the appellate panel also threw out the “spoilage of evidence” accusation.

The Castillo family had claimed the board threw out items that allegedly were in Castillo’s locker. One of the objects allegedly was a journal in which Castillo claimed she had documented the alleged harassment. But the appellate panel rejected the allegation, finding the school couldn’t have reasonably known the diary could potentially be evidence in a future court case.

“Castillo has not alleged facts indicating the diary’s evidentiary worth would have been foreseeable by a reasonable person in the board’s position,” Hyman wrote in the decision. “There is no allegation that Castillo, or anyone else, told school officials that she was recording Martinez’s harassment or that she even had a diary in her locker. Nor has Castillo explained why a reasonable school employee cleaning out Castillo’s locker would recognize that the object contained the factual basis of an eventual lawsuit.”

The Castillo family is represented in the action by attorney David Hepplewhite, of Chicago.

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Illinois First District Appellate CourtChicago Board of Education