122, para. 34-1.01 (1991) (stating the legislature's primary goals). The School Code was thus intended to redress the greater inadequacies in the educations provided by the Chicago Public schools; it was not intended to provide a cause of action for every frustrated employee or member of the public who is prevented, intentionally or not, from venting those frustrations at a school board meeting. Had such a broad remedy been intended by the Illinois State legislature, it would have been explicitly stated.
Plaintiffs offer Witt v. Forest Hosp. Inc., 115 Ill. App. 3d 481, 450 N.E.2d 811, 71 Ill. Dec. 123 (Ill. App. Ct. 1983), as an example of a case in which an unintended beneficiary of state policy was provided with an implied statutory right of action. In Witt, an Illinois appellate court permitted the plaintiff to proceed with a private right of action despite the Illinois legislature's failure to explicitly provide one. The plaintiff in that case had been terminated, contrary to state policy, because she provided information to the Guardianship and Advocacy Commission. Thus, the case may be read to permit a cause of action under the relevant statue. In Witt, unlike here, however, the final policy of the statute, protecting the mentally ill, would have been "substantially hampered" without an implied right of action. Here, enforcement of the section in question has a far more attenuated effect on the final goal of the statute itself. In addition, Witt may also be read as a retaliatory discharge case based on the tort doctrine rather than an implied right of action. However one reads Witt, the Court does not find that the outcome in that case necessitates implying a private right of action here.
The Court's conclusion in this regard is consistent with Judge Kocoras's decision in Ahern v. Board of Educ., No. 92-C-4074, 1992 WL 373030 (N.D. Ill. Dec. 9, 1992). There, Judge Kocoras refused to imply a private right of action under the Illinois School Code to remedy discrimination against several public school principals. While Judge Kocoras noted that the Illinois School Code was intended to increase community involvement in the schools, the case's holding indicates that the statute was not intended to redress harms to individuals.
Accordingly, with respect to Count III, the Court accepts and adopts the R&R of the Magistrate Judge. The Motions to Dismiss are GRANTED with respect to that Count.
Plaintiffs also object to the Magistrate Judge's recommendation with respect to Count V. The Magistrate Judge recommends that the Court dismiss Count V because Plaintiffs pleaded too broad a class of individuals when trying to establish that they were "similarly situated" with members of the public. While the Court agrees with the conclusion of the Magistrate Judge, the Court would like to clarify part of the reasoning behind this conclusion.
The Equal Protection Clause of the Fourteenth Amendment requires that the government treat all similarly situated persons alike. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985). When, as here, the alleged government discrimination is based on selective application of a government rule, see Bennett v. Village of Oak Park, 748 F. Supp. 1329 (N.D. Ill. 1990) (stating that the selective enforcement of a statute may violate equal protection), the plaintiff must plead and prove intentional discrimination on the part of the government. See Sims v. Mulcahy, 902 F.2d 524, 538-39 (7th Cir.), cert. denied, 498 U.S. 897, 112 L. Ed. 2d 207, 111 S. Ct. 249 (1990). In addition, a plaintiff must show discrimination based on membership in a particular disfavored class, not just on an individual basis. Sims v. Mulcahy, 902 F.2d at 538.
Here, Plaintiffs plead membership in a disfavored class but apparently seek to prove discrimination based on either an individual basis or membership in an entirely different class. It is apparent that Plaintiffs have plead membership in a particular class, that of board employees, it is not at all apparent from their complaint that they intend to prove discrimination based on their membership in that class. Plaintiffs plead that they are members of the disfavored class of board employees. Yet, their entire complaint is founded on them being discriminated against not because of their status as board employees, but because of their status as board critics, a different class of individuals.
Plaintiffs correctly contend, in their Reply brief in support of their objections, that a speaker states an equal protection claim when she asserts that the government, by its actions, intentionally favored one set of speakers over another. See Police Dep't v. Mosely, 408 U.S. 92, 95, 92 S. Ct. 2286, 33 L. Ed. 2d 212 (1972). To state such a claim, however, a plaintiff must allege status as a member of a class of individuals whose expressive conduct was disfavored. Here, Plaintiffs claim status as board employees but apparently do not seek to prove that they were discriminated against merely because they were board employees, implying that the board intended to discriminate against all employees regardless of the content of their speech. Rather, Plaintiffs apparently intend to prove discrimination based upon membership in a smaller class, either the class of individuals critical of the board or the class of employees who criticized the board.
Therefore, Defendants' Motions to Dismiss, with respect to Count V, are GRANTED. However, to avoid elevating form over substance, the Court grants Plaintiffs thirty days from the date of this order in which to file an appropriate amended complaint.
Accordingly, the Court accepts and adopts the Report and Recommendation of the Magistrate Judge. With respect to that part of Count I alleging a claim under 42 U.S.C. § 1985(3), and Counts II, IV, and V, Defendants' Motions to Dismiss are GRANTED. In all other respects, and with respect to Defendant Eddings's Motion to Strike, the Motions are DENIED. The Court clarifies, however, that Count V is dismissed without prejudice. Plaintiffs are granted thirty days in which to file a Second Amended Complaint amending that Count.
JOHN A. NORDBERG
United States District Judge
DATED: October 27, 1993