A federal judge has dismissed, for now, a lawsuit from Plainfield High School students who alleged District 202 ignored their reports of locker room assaults and hazing.
In August, attorneys Antonio Romanucci, Bhavani Raveendran and Ian Fallon, of the Chicago firm Romanucci & Blandin, filed a complaint in Chicago federal court against the southwest suburban school district and several employees on behalf of two couples, identified only as John and Jane Doe A and John and Jane Doe B, and their respective male children. The Doe plaintiffs claim varsity football players at Plainfield Central High School used a broomstick to sexually assault their sons in a locker room.
In an opinion issued Jan 19, U.S. District Judge Charles Kocoras granted the district’s motion to dismiss the complaint, saying the parents have yet to demonstrate the alleged harm to their children was caused by the school district. But the dismissal was without prejudice, meaning the plaintiffs will be allowed to file an amended complaint, that may cure the perceived deficiencies behind their first attempt.
In arguing for dismissal, District 202 said the parents didn’t allege willful and wanton misconduct; claimed protection from state law claims under the Illinois Tort Immunity Act; said the parents didn’t allege their own legal injury and their individual claims are barred by statutory limitations; and argued the parents failed to adequately allege violation of due process rights and other claims.
The complaint centers on the so-called “Code Blue” hazing ritual within the football program, under which varsity football players would allegedly barge into the locker room while freshman team members are showering. At that point, varsity players would allegedly single out at least one freshman and call a “Code Blue.” According to the complaint, the freshman then is given the choice to either shove a broomstick “between and through their buttocks resulting in penetration,” or be held down and be sexually assaulted by a member of the varsity team, who would perform the action by force.
The parents said their complaint is sufficient because it alleged District 202 employees knew about “Code Blue” and didn’t adhere to a mandatory locker room supervision policy to stop the conduct. In addition to District 202, the complaint levels claims against football coaches Jon Pereiro, Michael Moderhack and Vincent Vasquez, saying the coaches are well aware of the “Code Blue” rituals, allegedly repeated regularly in the high school’s football locker rooms, yet have done nothing to stop it.
However, Kocoras said, case law contains several instances of decisions holding a school’s failure to keep students from bullying, harassing and assaulting each other isn’t a “state-created danger.” Plaintiffs like the Doe parents have succeeded when alleging school employees participated in or actively encouraged assaults, or punished students for reporting, but Kocoras said the complaint includes no such allegations.
“The line between action and inaction is not always easily drawn,” Kocoras wrote, adding that “failing to prevent the harm is simply not the same as creating or increasing the risk of harm, which is a fundamental requirement for this type of substantive due process claim.”
Kocoras similarly rejected the claim of due process violation, which ultimately rested on the assertion that District 202’s existing disciplinary framework should’ve resulted in action that prevented the varsity students from allegedly assaulting freshmen. Failure to do so, the parents alleged, deprived students of their right to education.
Although the state constitution creates a right to public education, Korcoras wrote, the Does “cited no case law to support their claim that procedural due process affords plaintiffs a right to have other students disciplined.”
Because he rejected the claims of constitutional violations, Kocoras said, the parents are unable to sue under the 1978 U.S. Supreme Court opinion in Monell v. Department of Social Services.
“Finally, although the Doe parents claim to be suing on their own behalf as well as on behalf of the Doe children, they fail to allege any facts to support a claim for their own constitutional injuries,” Kocoras wrote. “Therefore, the individual claims of the Doe parents are dismissed.”
District 202 has been represented in the action by attorneys Jane Marie May, and others with the firms of O'Halloran Kosoff Geitner & Cook, of Northbrook, and Franczek PC, of Chicago.