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DOE v. BOARD OF EDUC. OF HONONEGAH COMMUNITY HIGH

September 30, 1993

JANE DOE, Plaintiff,
v.
BOARD OF EDUCATION OF HONONEGAH COMMUNITY HIGH SCHOOL DISTRICT #207, et al., Defendants.



The opinion of the court was delivered by: PHILIP G. REINHARD

 INTRODUCTION

 Plaintiff, Jane Doe, filed a fourth amended, fourteen-count complaint against various members of the Hononegah Community High School District 207 school board, the school district and David Davison in his individual and official capacity as principal, assistant superintendent and superintendent, Terry Spurlock in his individual and official capacity as assistant principal and principal, Paul Kern in his individual and official capacity as superintendent, *fn1" Kerry Muldowney, Robert Maloney, Lucy Reardon-Vaubel and Marion Fiorillo in their individual capacities as counselors. The complaint essentially seeks money damages and attorneys fees (42 U.S.C. § 1988) for alleged deprivations of plaintiff's due process rights under the fourteenth amendment (42 U.S.C. § 1983) and for obstruction of justice and denial of equal protection (42 U.S.C. §§ 1985(2),(3)). Jurisdiction is based on 28 U.S.C. § 1343(a)(3). Defendants moved to dismiss the entire fourth amended complaint.

 FACTS

 The fourth amended complaint alleges the following. Plaintiff, then a minor, female student at the high school, was sexually abused on more than one occasion by a teacher during the 1985-86 and 1986-87 school years. The last such abuse occurred in 1986. *fn2"

 The teacher was employed by the school district from 1981 to 1991. During the 1981-82 school year, the three school administrators (Davison, Kern and Spurlock) knew of sexual misconduct committed by the teacher against an eighteen-year-old female student. Davison cited the teacher in writing for inappropriate sexual behavior and warned him that similar future action would be cause for his discharge.

 During the 1983-84 school year, the teacher sexually abused a minor female student. An unidentified counselor, who reasonably suspected that the teacher was involved in sexual abuse, confronted the student, but she did not admit the abuse. Also in 1983-84, another minor female student was abused by the teacher, and another teacher knew of the incident. In 1984-85, a minor student reported to a high school teacher that she was a victim of multiple instances of sexual abuse by the teacher during that school year. The high school teacher reported this information to Kern but no action was taken against the teacher. Furthermore, in 1984-85, Davison, Kern and Spurlock knew of multiple charges of sexual misconduct during that year involving the teacher and yet another minor, female student. A counselor and the victim's mother reported these charges to Kern, Davison and Spurlock, and the counselor advised Kern that he believed the charges were true. No action was taken against the teacher.

 In 1987-88, a parent of a minor, female student told Kern that the teacher was touching and harassing his daughter. The student also told Kern about the sexual misconduct, and Kern told the student he was surprised by this type of report and had never before heard of similar incidents involving the teacher. During the 1990-91 school year, another minor, female student told a counselor she was the victim of sexual misconduct by the teacher that year. Despite urging by the counselor to file a complaint, the student refused to do so. In March 1991, the teacher was seen peering into the girls' locker room while minor, female students were present. Davison and Spurlock knew of this yet took no action against the teacher. In June 1991, Davison told a newspaper reporter that he had no knowledge of any allegations of sexual misconduct against the teacher.

 Following the first five alleged instances of abuse, the teacher's conduct continued unchecked by defendants. This fostered a climate to flourish in which female students were sexually abused by the teacher. The teacher sexually abused at least thirteen other minor, female students until 1991.

 Counts I, II, and III set forth specific allegations against Davison, Spurlock and Kern's estate respectively. It is alleged that Davison and Spurlock "fostered a climate to flourish in which female students were sexually abused" in that they: (1) failed to train teachers, counselors and school personnel to report suspected sexual abuse to the Illinois Department of Children and Family Services (DCFS); (2) purposely failed to report suspected minor sexual abuse to DCFS; (3) failed to invoke disciplinary proceedings against the teacher; (4) regarding certain occurrences, ratified or acquiesced in Kern's actions of discouraging the victims, family members or confidants from pursuing sexual misconduct charges by siding with the teacher, suggesting the victims were fantasizing or fabricating, and suggesting the victims would be discredited or humiliated if the charges were made public; (5) ratified or acquiesced in Kern's failure to undertake discharge proceedings pursuant to Illinois law or to recommend such to the school board; (6) concealed knowledge of the teacher's past sexual misconduct with another student from one of the victims and her mother; (7) ratified or acquiesced in Kern's concealment of the same information referred to in (6); (8) concealed knowledge from the same victim and her mother that the teacher had previously received a written warning for inappropriate behavior; (9) concealed knowledge from the same victim and her mother of the existence of the "Abused and Neglected Child Reporting Act;" and (10) ratified or acquiesced in Kern's concealment of the "Abused and Neglected Child Reporting Act."

 As to Kern, it is alleged that he fostered a climate to flourish in which female students were sexually abused by failing to report suspected minor sexual abuse to DCFS, discouraging the victim, family members or confidants from pursuing sexual misconduct charges, failing to undertake discharge proceedings or recommending the school board do so, concealing knowledge of the teacher's past sexual misconduct and charges of sexual misconduct, concealing the fact that the teacher had been previously warned in writing regarding inappropriate behavior, misleading or deceiving a victim and her mother that the teacher would be disciplined and that action would be taken to prevent his future misconduct, concealing the existence of the abuse and neglect reporting act, lying to a victim that he had never heard of similar allegations about the teacher and failing to train teachers, counselors and school personnel to report suspected sexual abuse to DCFS.

 The complaint further alleges as to Davison and Spurlock that their reckless or deliberate indifference in disregarding state law by refusing to report the teacher to DCFS and refusing to require counselors to do so violated plaintiff's due process rights to have state law enforced for her protection. It further alleges that these two defendants violated her due process rights to have an investigation conducted by law enforcement and that their failure to intervene and protect plaintiff, when they knew or should have known that Kern took no effective action to stop the teacher, created a danger to plaintiff and increased her risk of harm which ultimately led to plaintiff being victimized by the teacher. Regarding Kern, the complaint asserts by refusing to report the teacher to DCFS and by refusing to require counselors to do so, Kern denied plaintiff her due process right to have state law enforced for her protection and to have an investigation conducted. It is further alleged that Kern's reckless or deliberate indifference created a danger to plaintiff that increased her risk of harm which ultimately led to plaintiff being abused.

 Count IV, against the school district and various school board members, alleges that the school district's practice, acquiesced in or ratified by the school board, was not to report instances, based on reasonable belief, of minor student sexual abuse by teachers. Such practice "fostered a climate to flourish" in which female students, including plaintiff, were sexually abused by the teacher. Count IV further alleges other acts or omissions by the school district and school board that created a climate conducive to sexual abuse.

 Counts V, VI and VII allege that Kern, Davison and Spurlock, respectively, violated plaintiff's rights to free and unobstructed access to the courts. Specifically, each count alleges that plaintiff was injured in that: (1) with the passage of time witnesses' memories will be affected; (2) she will be required to respond to motions to dismiss because of lack of timeliness; (3) she will be hindered by motions seeking to stay discovery, which will prevent her from ascertaining if she has sued all potential defendants prior to the two year discovery rule statute of limitations or other actions of defendants which would support her claims as to the statute of limitations; (4) she suffers mental and emotional distress, humiliation, loss of reputation and loss of enjoyment of life; (5) she has been deprived of evidence by Kern's death and (6) a delay of five to six years passed before plaintiff was able to recognize her causes of action.

 Counts VIII (Kern), IX (Davison) and X (Spurlock) allege that each defendant conspired with the other two to conceal the teacher's conduct from state authorities, to cover up his conduct, to prevent female students, including plaintiff, from becoming aware of the unconstitutional climate, to prevent them from pursuing legal rights and remedies, and to conceal the existence of the conspiracy. It is further alleged in Counts VIII, IX and X that each of these three defendants had an express or implied agreement with the other two and with the four named counselors to disregard state law by not reporting the teacher to DCFS. In furtherance of that agreement, each defendant failed to report the teacher and failed to require the counselors to do so. As a proximate cause of the conspiracy, plaintiff was denied her rights to free and unobstructed access to the courts.

 The fourth amended complaint also sets forth additional allegations common to all counts. Kern, Davison and Spurlock fraudulently concealed plaintiff's cause of action which caused a delay in plaintiff recognizing her right against all defendants to legal relief. Plaintiff did not, in the exercise of ordinary diligence, discover her causes of action against defendants because of her detrimental reliance on Kern, Davison and Spurlock who, as persons of trust, authority and in loco parenti, were obligated not to injure her. Alternatively, if she had tried to discover her causes of action, she would have failed because of the sophisticated cover up and concealment. Plaintiff first knew or should have known of the unconstitutional conduct of Kern, Davison and Spurlock when their conduct was reported in a July 31, 1991 newspaper and first knew or should have known of her claims against the remaining defendants on January 22, 1992, when the newspaper reported the school board's closed executive sessions. *fn3"

 Counts XI, XII, XIII and XIV set forth allegations against school counselors Muldowney, Maloney, Reardon-Vaubel and Fiorillo, respectively. It is alleged state law and school policy required reporting suspected minor sexual abuse to DCFS. Each defendant knew or had reasonable cause to suspect that plaintiff and other female students were abused by the teacher and they did not report such knowledge to DCFS even though they knew that Davison, Spurlock and Kern took either no action or ineffective action to prevent the abuse. This conduct violated plaintiff's due process rights in that: (1) it "fostered an environment to exist" and continue in which minor female students became sexual abuse victims; (2) defendants had a duty to intervene and protect minor female students from becoming abuse victims when they (Muldowney, Maloney, Reardon-Vaubel) knew or should have that the administration, their supervisor or counselors took no action or effective action to do so or when Fiorillo knew or should have known that the administration or his subordinates took no such action or effective action; (3) their reckless or deliberate indifference, in disregarding state law by refusing to report the teacher to DCFS, violated plaintiff's due process rights to have state law enforced for her protection and to have an investigation conducted by law enforcement authorities; and (4) their reckless and deliberate indifference created a danger of and increased the risk of harm by sexual abuse.

 The complaint further alleges as to these four defendants that they knowingly concealed their knowledge of the child abuse, the school environment and the actions of the school administration from law enforcement and state authorities, which resulted in a five to six year delay in plaintiff's recognizing her cause of action, a deprivation of material evidence due to Kern's death, and a loss of witnesses' memories. Additionally, each of these defendants had an express or implied agreement with Davison, Spurlock, Kern and each other to disregard state law and not report the teacher to DCFS and that each of them failed to do so in furtherance of that conspiracy. Lastly, it is alleged that they knew or should have known of her causes of actions on July 31, 1991, and that her causes of action were fraudulently concealed by these four defendants. Through the exercise of due diligence, plaintiff was unable to discover her causes of action because of her reliance on these defendants as persons of trust, authority and in loco parenti. Alternatively, had she tried to discover her causes of action she would have been unable to do so because of the alleged cover-up and concealment.

 Finally, the fourth amended complaint contains a section captioned "CONSTITUTIONALLY PROTECTED RIGHTS." In this section, plaintiff alleges that under the due process clause ...


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