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.
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 of the Fourteenth Amendment she had a right
"to be free from public school administrators, School Board members, counselors and teachers who under color of state law deliberately or with reckless indifference created a danger to minor female students, increased the risk of harm to minor female students or made minor female students more vulnerable to harm, when said danger or harm ultimately led to teacher molestation of students; and further, defendants had a constitutional duty to intervene and protect said students from molestation when their supervisors, superiors or co-workers took no action or no effective action to stop teacher sexual abuse.
6. Plaintiff had a constitutionally protected liberty interest under the Due Process Clause of the Fourteenth Amendment to the United States Constitution to have had state law followed and enforced when either public school administrators, School Board members, counselors and teachers deliberately or with reckless indifference ignored state law which caused minor female students to become sexual abuse victims.