MEMORANDUM OPINION AND ORDER
The Grove School ("School") and its Executive Director Robert Matson
("Matson")*fn1 charge Guardianship and Advocacy Commission of the State
of Illinois ("Commission") and its employees Elizabeth McKee ("McKee"),
Mary C. Gibb ("Gibb"), Evelyn Engler ("Engler"), Ruth Durkin ("Durkin")
and Hector E. Palacious ("Palacious")*fn2 violated Grove's First and
Fourteenth Amendment rights*fn3 during a GAC investigation of alleged
violations by Grove of state laws for treatment and education of
handicapped children. Those are advanced under 42 U.S.C. § 1983
("Section 1983"). Grove also asserts pendent common-law libel and trade
libel claims against GAC.
GAC invokes Fed.R.Civ.P. 12(b)(6) to challenge Grove's Complaint on a
multiplicity of grounds. It attacks the sufficiency of the First and
Fourteenth Amendment allegations generally and also asserts the following
1. Commission is not a "person" for Section 1983
2. Under the Eleventh Amendment no action for
monetary damages may be brought against Commission or
its employees sued in their official capacities.
3. Federal courts lack authority to compel state
officials to conform their conduct to state law. That
bars the pendent claims.
4. Commission is a quasi-judicial board, so its
officers enjoy absolute judicial immunity.
5. Allegations against Engler, Gibb and Palacious
are insufficient to establish their direct involvement
in a deprivation of Grove's rights.
6. Gibb and Engler may not be held liable for
damages on respondeat superior grounds.
Grove of course seeks to repel all of GAC's onslaughts.
Because GAC's motions to dismiss various defendants may be treated more
readily in the context of at least one valid substantive claim, this
opinion will first deal with Grove's First Amendment assertions, then turn
to the objections by specific defendants, then return to the other claims
in the Complaint. For the reasons stated in this opinion, GAC's motions
to dismiss (1) Commission as a defendant and (2) the Fourteenth Amendment
due process claims against all individual defendants are granted. Its
motions to dismiss (1) the individual defendants generally, (2) First
Amendment claims and (3) the pendent claims are denied.
School is a residential, medical and educational facility for the
multiply handicapped and developmentally disabled. It was founded by
Virginia Matson in 1958 and is now run by her son Robert.
Commission is an executive agency of the State of Illinois created to
protect the rights of the mentally ill and developmentally disabled. Among
its three divisions is the Human Rights Authority ("Authority"), which
operates through regional boards that investigate complaints alleging
violations of such persons' rights. Those regional boards are empowered
to conduct hearings, subpoena witnesses and documents, release findings
to the public, recommend that other agencies take punitive or remedial
action, and propose legislation for the protection of the handicapped.
Ill. Rev.Stat. ch. 91 1/2, ¶ 714-728.
Engler is Authority's Director. McKee is Chairperson, Gibb is
Vice-Chairperson and Durkin is a Board member of Authority Region 2 North
(the region in which the School is located). Palacious is an attorney
employed by Commission.
Matson and his mother Virginia have run School according to a
philosophy that conflicts with the prevailing philosophy of Commission and
other Illinois agencies as to the proper way to handle the education of
the multiply handicapped and developmentally disabled. Both Matsons and
School have advocated their own philosophy and criticized Commission
To punish Matson and School for such criticisms and nonconformist
philosophy, GAC instituted a harassment campaign under the guise of an
investigation of charges GAC knew were false.*fn6 GAC made numerous
visits to School's campus to question students and employees, and it also
made burdensome document requests, all of which disrupted School's
On July 6, 1983 GAC held a public "hearing" at which it released a
number of false charges against School and Matson, including charges of
understaffing, improper distribution of medication and permitting sexual
abuse of residents. "Hearing" is really a euphemism for what actually
took place, for GAC had refused Grove's several requests for advance
notice of the nature of the charges, nor did GAC give Grove any
opportunity to object or respond at the "hearing" or to attach a response
to the written report GAC distributed to the press. Since that time GAC
has continued its investigation and has recommended that other Illinois
agencies and the Illinois legislature take action against Grove,
including cutting off School's funding, removing Matson as Executive
Director and revoking School's and Matson's licenses.
As a result of GAC's actions and the adverse publicity, Grove has
in providing its services, frustration in accomplishing its educational
goals and a loss of reputation, enrollment and revenues. Both
compensatory and punitive damages are sought from all defendants.
First Amendment Claims
School's and Matson's factual allegations (though not their conclusory
allegations of law) advance two possible bases for asserting violation of
their First Amendment rights. One surely states a valid claim: the charge
that GAC's actions have been motivated by a desire to punish Grove for
criticizing GAC and for advocating Grove's own philosophy of treatment of
the multiply handicapped and developmentally disabled.
One major purpose of the First Amendment was to protect free discussion
of governmental affairs. Landmark Communications, Inc. v. Virginia,
435 U.S. 829, 838, 98 S.Ct. 1535, 1541, 56 L.Ed.2d 1 (1978). It is
axiomatic that government may not attempt to inhibit criticism of public
policies or officials by punishing those who express critical views, at
least unless the expression actually hinders the functioning of the
state. Hostrop v. Board of Junior College District No. 515, 471 F.2d 488,
492 (7th Cir. 1972) and authorities there cited. On Grove's allegations,
GAC's actions are an impermissible attempt to inhibit Grove from
exercising the constitutional right to criticize GAC and to advocate
Grove's own philosophy of treatment. GAC has not suggested any —
let alone a compelling — governmental reason for suppressing
GAC argues its conduct was non-actionable because GAC itself had no
power to cut off funding, close down School or remove Matson as Executive
Director. Whether those factors may be relevant to Grove's First
Amendment charge as expressed in the Complaint is discussed below, but
they miss the point of the theory now under consideration. To establish a
violation of their First Amendment rights of expression, School and
Matson need show only impermissible action tending to inhibit their
speech. Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982). Indeed they
need not show the desire to punish or inhibit their speech was the sole
motivation for GAC's action.
Even if it be assumed there was a legitimate basis for launching the
investigation, Grove's Complaint may thus fairly be read to allege GAC's
investigation was arbitrary, unusually burdensome and unnecessarily
harassing because of GAC's disagreement with Grove's views. That states a
viable First Amendment claim.
But the stated thrust of Grove's express invocation of the First
Amendment lies in a different direction: the charge that GAC has
interfered with Grove's constitutionally guaranteed freedom to establish
and administer an educational treatment program consistent with its own
philosophy and with parents' constitutional right to choose the
educational philosophy that will guide their childrens' education. At
least the first part of that contention also survives dismissal.
In support of its theory Grove cites Sweezy v. New Hampshire,
354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957), Regents of the
University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57
L.Ed.2d 750 (1978) and Pierce v. Society of Sisters, 268 U.S. 510, 45
S.Ct. 571, 69 L.Ed. 1070 (1925). All three of those cases, together with
other cases not called on by Grove but plainly relevant, keep it in
Sweezy involved the right of a university professor to resist
government interrogation about his past associations and the content of a
lecture he had delivered. It concerned governmental interference with an
individual's expression of ideas in a university setting. As for the
Bakke excerpt Grove cites (438 U.S. at 311-15, 98 S.Ct. at 2559-61), it
considered the importance to a university of assuring itself a diverse
student body and emphasized the university's freedom to design its
curriculum, choose its teachers and exchange ideas. Pierce emphasized the
right of parents to expose their children to ideas and educational
philosophies other than those of the state.
Though that right is not Grove's own, under the circumstances alleged
here it implies a protectible corollary right on Grove's part to express
such ideas and philosophies.*fn7
Read in the most favorable light, Grove's Complaint asserts the very
conduct of School's affairs in accordance with Grove's philosophy is a
form of expression protected by the First Amendment. Tinker v. Des Moines
School District, 393 U.S. 503, 505-06, 89 S.Ct. 733, 735-36, 21 L.Ed.2d
731 (1969) teaches such protection extends to "symbolic act[s]" akin to
"pure speech" It is of course true that (Clark v. Community for Creative
Non-Violence, ___ U.S. ___, ___ & n. 5, 104 S.Ct. 3065, 3069 & n. 5, 82
L.Ed.2d 221 (1984)):
1. "[I]t is the obligation of the person desiring to
engage in assertedly expressive conduct to demonstrate
that the First Amendment even applies. To hold
otherwise would be to create a rule that all conduct
is presumptively expressive."
2. Even expressive conduct "may be forbidden or
regulated if the conduct itself may constitutionally
be regulated, if the regulation is narrowly drawn to
further a substantial governmental interest, and if
the interest is unrelated to the suppression of free
But at this early stage of the litigation, this Court has not been
afforded enough information to determine whether Grove's conduct is
protected speech or to evaluate the government's interest in regulation.
Grove's uncontroverted allegations supply the requisite prima facie
case. From this second perspective too, then, Grove's First Amendment
claims survive dismissal.*fn8
All the preceding discussion proceeds from the premise Grove has
adequately pleaded its First Amendment claims. Because GAC challenges the
Complaint on those terms, a brief treatment of the technical pleading
considerations is in order.
True enough, the Complaint's specific reference to the First Amendment
was scanty.*fn9 It is also true that brief reference did not articulate
the theory GAC violated School's and Matson's First Amendment rights by
punishing them for expressing their views. But what controls is that the
factual allegations necessary to support that unstated theory, as well as
the theory Complaint ¶ 29 did specify, are present in the Complaint.
Under the teaching of Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct.
99, 101-02, 2 L.Ed.2d 80 (1957), as recently reaffirmed in Hishon v. King
& Spalding, ___ U.S. ___, 104 S.Ct. 2229, 2233, 81 L.Ed.2d 59 (1984), a
motion to dismiss may be granted only if it "appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief." That means this Court "is under a duty to
examine the complaint to determine if the allegations provide for relief
under any possible theory." Craft v. Board of Trustees, 516 F. Supp. 1317,
1323 (N.D.Ill. 1981); 5 Wright & Miller, Federal Practice and Procedure:
Civil § 1357, at 601-02 (1969). Because this Court has found Grove's
allegations state a cause of action, both in terms specifically
identified in the Complaint and in terms implicated by its factual
allegations, the Complaint cannot be dismissed.
Commission argues it is not a "person's for Section 1983 purposes. That
be rephrased in traditional jurisprudential terms. Because Quern v.
Jordan, 440 U.S. 332, 341, 99 S.Ct. 1139, 1145, 59 L.Ed.2d 358 (1979) and
Pennhurst State School & Hospital v. Halderman, ___ U.S. ___" 104 S.Ot.
900, 907, 79 L.Ed.2d 67 (1984) have laid to rest the notion that Section
1983 abrogates the Eleventh Amendment,*fn10 the appropriate inquiry is
whether Commission, a state agency, is protected under standard sovereign
Monell v. Department of Social Services, 436 U.S. 658, 690, 98 S.Ct.
2018, 2035, 56 L.Ed.2d 611 (1978) held municipalities are not immune from
Section 1983 suits — a holding it explicitly limited to "local
government units which are not considered part of the State for Eleventh
Amendment purposes" (id. at 690 n. 54, 98 S.Ct. at 2085 n. 54). Later in
the same Term the Supreme Court refused to extend the Monell exception to
state agencies and held the Alabama Board of Corrections enjoys sovereign
immunity under Section 1983. Alabama v. Pugh, 438 U.S. 781, 782, 98
S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam). Pennhurst, 104 S.Ct. at
908 reaffirmed the immunity of state agencies. Accord, Toledo, Peoria &
Western Railroad Co. v. Illinois, 744 F.2d 1296 at 1298 (7th Cir. 1984).
Commission is therefore immune from suit on both the Section 1983 and
2. Engler, Gibb and Palacious
Engler, Gibb and Palacious move for dismissal on the premise the
Complaint's allegations do not establish their direct involvement in any
alleged deprivation of School's or Matson's rights. Duncan v. Duckworth,
644 F.2d 653, 655 (7th Cir. 1981) is cited for the proposition that a
defendant may not be held liable under Section 1983 unless his "direct
and personal responsibility" for the alleged deprivation is proved.
But on the current motion the test is one of pleading, not proof. And
on that score the Complaint alleges specific participation by each of
Engler, Gibb and Palacious in GAC's investigation of School:
1. Gibb notified Grove of the July 6 public hearing
2. Engler approved the public release of GAC's
charges against School (Complaint 1118).
3. Palacious demanded records from School and
reported School to Illinois authorities for
prosecution (Complaint 1116).
Complaint ¶ 17 also ascribes pre-July 6 harassing tactics of various
kinds to "defendants," without particularizing just who did what.