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03/18/94 DEBORAH A. DUDLEY v. BOARD EDUCATION

March 18, 1994

DEBORAH A. DUDLEY, PLAINTIFF-APPELLANT,
v.
THE BOARD OF EDUCATION, BELLWOOD SCHOOL DISTRICT NO. 88, A BODY POLITIC AND CORPORATE, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. The Honorable John N. Hourihane, Judge Presiding.

Released for Publication May 5, 1994.

Giannis, Egan, Rakowski

The opinion of the court was delivered by: Giannis

JUSTICE GIANNIS delivered the opinion of the court:

Plaintiff, a tenured teacher employed the Board of Education of Bellwood, School District No. 88 (the Board), instituted this action for declaratory and other relief, claiming that her evaluation and remediation program for the 1990-91 and 1991-92 school years were conducted in a manner contrary to Article 24A of the School Code. (Ill. Rev. Stat. 1989, ch. 122, par. 24A-1 et seq., now 105 ILCS 5/24A-1 et seq. (West 1992).) The trial court dismissed Count I of plaintiff's amended complaint, holding that it failed to state a cause of action and was not properly before the court because plaintiff had failed to exhaust her administrative remedies. Plaintiff appeals from the dismissal of Count I of her amended complaint which sought, inter alia, to enjoin the Board from pursuing dismissal proceedings against her based upon an unsatisfactory performance evaluation and remediation program. *fn1

Count I of the amended complaint asserted that the Board wrongfully engaged in an evaluation and remediation plan for the plaintiff in violation of the provisions contained in Article 24A of the School Code. Specifically, plaintiff alleged that the evaluation whichrated her performance as "unsatisfactory" violated Article 24A in that it failed to list the names of all qualified administrators as required by the regulations adopted by the Illinois State Board of Education pursuant to the School Code (23 Ill. Adm. Code § 50.40(e)); it failed to specify plaintiff's strengths, with supporting reasons, in violation of section 24A-5(d); and it was not conducted in a manner consistent with and for the purpose of improving educational services as required by section 24A-1.

Plaintiff also alleged that the remediation program violated Article 24A in that it was issued and implemented pursuant to an invalid evaluation; it was not initiated within 30 days of her written evaluation as required by section 24A-5(f); it was implemented in bad faith and for purposes which were not consistent with the improvement of educational services as required by section 24A-1; and neither plaintiff nor her consulting teacher played any role in the development of the remediation plan in violation of section 24A-5(h).

Count I of the amended complaint also included numerous other allegations of fact to support her claim that she was wrongfully given a performance evaluation of "unsatisfactory" and was wrongfully subjected to a remediation plan and dismissal proceeding based upon personal animosity between herself and Pamela Cullotta, principal of plaintiff's school.

Based upon these allegations, plaintiff's amended complaint sought (1) an order declaring that the Board's evaluation of plaintiff and the subsequent remediation program were conducted in violation of the School Code and were null and void; (2) an order directing the Board to expunge from the school district's records plaintiff's evaluation, all observation reports, the remediation plan, all periodic evaluations and observation reports prepared pursuant to the remediation plan, and the final evaluation of plaintiff's performance upon completion of the remediation plan; (3) an order directing the Board to refrain from serving plaintiff with a notice of dismissal and to refrain from taking any other action against plaintiff pursuant to the evaluation, remediation, or final evaluation; and (4) an order directing the Board to upgrade plaintiff's evaluation and final evaluation from "unsatisfactory" to "satisfactory" or better.

The Board filed a one-page motion to dismiss the amended complaint, asserting only that it failed to state a cause of action. In the memorandum filed in support of its motion to dismiss, the Board argued that Count I of the amended complaint should be dismissed because plaintiff failed to exhaust her administrative remedies.

The trial court granted the Board's motion to dismiss, holdingthat Count I failed to state a cause of action under Article 24A. The court held further that Count I was not properly before the court because plaintiff had not pursued administrative review, which was the exclusive means of reviewing a final decision by the Board, and because plaintiff had not alleged sufficient grounds to challenge the jurisdiction of the Board. Plaintiff has appealed the dismissal of her complaint.

We initially consider plaintiff's claim that the trial court erred in finding that she had no private right of action for enforcement of Article 24A of the School Code.

Article 24A of the School Code governs the evaluation and remediation of tenured teachers, and the stated purpose of this article is to "improve the educational services of the elementary and secondary public schools of Illinois by requiring that all certified school district employees be evaluated on a periodic basis and that the evaluations result in remedial action being taken when deemed necessary." Ill. Rev. Stat. 1989, ch. 122, par. 24A-1, now 105 ILCS 5/24A-1 (West 1992).

Section 24A-4 mandates that each school district establish a teacher evaluation plan. (Ill. Rev. Stat. 1989, ch. 122, par. 24A-4, now 105 ILCS 5/24A-4 (West 1992).) The necessary provisions of the evaluation plans are set forth in section 24A-5 (Ill. Rev. Stat. 1989, ch. 122, par. 24A-5, now 105 ILCS 5/24A-5 (West 1992)), and include the evaluation of each tenured teacher at least every two years and the remediation of any tenured teacher whose performance is evaluated to be unsatisfactory. In addition, section 24A-5 requires that the evaluation plan include a description of each teacher's duties ...


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