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July 24, 1992

WILLIAM SIECK and MARY PAT SIECK, for and on behalf of their minor son, JAMES SIECK, Plaintiffs,

The opinion of the court was delivered by: BRIAN BARNETT DUFF


 On February 28, 1990, Oak Park-River Forest High School suspended Jamie Sieck for a period of ten days on charges of theft. His parents, William and Mary Sieck, on behalf of their son, are suing the District, the Board of Education, and several school officials. They seek recovery for violations of constitutional and civil rights protected by the Fifth and Fourteenth Amendments to the Constitution and by 42 U.S.C. ยงยง 1983 and 1988. They are also seeking recovery on a supplemental state claim for negligently distributing Jamie's suspension memorandum in violation of the Illinois School Student Records Act. The defendants have moved for summary judgement on the complaint. For the reasons discussed below, the court denies the motion for summary judgment.


 These are the undisputed facts: On February 26, 1990, Jamie Sieck and Jay Lind, students at the Oak Park-River Forest High School, entered the faculty lounge, where Jamie purchased at least one can of soda. On leaving the lounge, two staff members, Dolores Marino and Mildred Floyd, noticed that he was carrying two cans of soda. Mrs. Marino directed him to stop and then confiscated both cans. She accused Jamie of stealing the soda from a beverage serving cart which had been prepared for an after-school faculty meeting. Jamie denied the allegation of theft and went to speak with Dean Mathies.

 Dean Mathies turned the incident over to Dr. Walker, the District's Associate Superintendent for Pupil Services, who asked to meet with Jamie and his parents. On February 28, 1990, Jamie and his father William Sieck met with Dr. Walker. At the meeting, both Mrs. Marino and Jamie were asked to describe their versions of the incident. After Jamie again denied stealing the soda, Dr. Walker took the participants to the faculty lounge to recreate the incident.

 Dr. Walker's statements after the reenactment are in dispute. Plaintiffs allege that Dr. Walker told Jamie he would have to prove his innocence. They also claim that Dr. Walker said that Jamie would have to be suspended because of the school's practice of automatically suspending students accused of theft regardless of whether they admit or deny the crime. Since the Board of Education was to meet that evening, Dr. Walker said he would ask the Board whether it wanted to follow that practice in this case.

 The Board approved Jamie's suspension at the meeting. On the following day, the High School's administrative office circulated a memorandum to selected staff members which reported that Jamie had been suspended from school for theft. Plaintiffs state that shortly thereafter, a student who had seen the memorandum spread word of its contents among the students, faculty and staff at the High School (it was apparently the school's practice to use students to retrieve and deliver teacher mail and that mail frequently included disciplinary notices that were neither sealed nor labeled confidential). *fn1"

 On March 2, 1990, the High School principal, Dr. Gustafson, sent a letter to the plaintiffs informing them that he had recommended expulsion for Jamie and that the Board would hold a formal hearing on March 6. Following the hearing however, the Board elected to withdraw the expulsion recommendation, rescind the suspension, and expunge Jamie's record. Jamie was allowed back in school on March 7, 1990, after having served three days of the suspension.


 Rule 56 of the Federal Rules of Civil Procedure requires this court to enter summary judgement upon either party's motion "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material facts and that the moving party is entitled to a judgement as a matter of law." See generally Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). When there is enough evidence in favor of the non-movant that a jury could reasonably return a verdict for that party, a "genuine issue" exists and summary judgement is not appropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). This court's task, therefore, is to determine which facts are material in light of the relevant law, and then whether any of those facts are in issue.

 A. Count I

 First, the court turns to the law governing claims of procedural due process violations. The Fourteenth Amendment forbids the State to deprive any person of life, liberty, or property without due process of law. Protected property interests are not normally created by the Constitution, "rather, they are created and their dimensions are defined by an independent source such as state statutes or rules entitling the citizen to certain benefits." Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). The courts have employed a two-step analysis in determining whether or not a state has violated an individual's right to procedural due process. Colon v Schneider, 899 F.2d 660, 666 (7th Cir. 1990).

 The first step is to determine whether the plaintiff had a liberty or property interest with which the state has interfered. Id. If so, the court must then determine whether the "entity responsible for the alleged deprivation instituted constitutionally sufficient procedural protections." Id. (citing Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 460, 104 L. Ed. 2d 506, 109 S. Ct. 1904 (1989); See also Shango v. Jurich, 681 F.2d 1091, 1097-1098 (7th Cir. 1982). Thus, plaintiffs may establish a "prima facie" case of a due process violation if they can show ...

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