Appeal from the Circuit Court of Cook County. No. 96 L 05693 Honorable Susan Zwick, Judge Presiding
The opinion of the court was delivered by: Justice Tully
In 1995, Amy Teverbaugh, a minor female, was allegedly sexually assaulted at Lincoln Jr. High School when two fellow seventh grade students, Carl Moore and Ernest Tetter grabbed her in a sexual manner.
Subsequently, Amy Teverbaugh and her mother, Eartha Duncan, brought an action against Carl Moore, Ernest Tetter, the Suburban School Cooperative, the State of Illinois Board of Education, and School District #148 (School District). In count VI of their third amended complaint, plaintiffs sought to recover monetary damages against the School District on the basis that it engaged in sex discrimination by refusing to restrain Tetter and Moore from repeated acts of sexual misconduct against female students, depriving plaintiff of equal protection of the law in violation of article I, section 18, of the Constitution of the State of Illinois, 1970. Ill. Const. 1970, art. I, §18. The School District moved to dismiss count VI of plaintiffs' complaint, arguing a private right of action for damages was not implied under article I, section 18. Alternately, the School District asserted that even if article I, section 18, allowed an action for damages, plaintiffs were barred from recovery by section 3-108(a) of the Local Governmental and Government Employees Tort Immunity Act (Tort Immunity Act or Act) (745 ILCS 10/3-108(a) (West 1996)), which immunized the School District from liability for failure to supervise students. In addition, the School District maintained that because section 2-201 of the Tort Immunity Act (745 ILCS 10/2-201) (West 1996)) did not expressly include constitutional claims in the list of claims to which immunities under the Act were inapplicable, the Act could be asserted as an affirmative defense.
The circuit court denied defendant's motion to dismiss count VI, finding a right of action for damages was implied under article I, section 18, to which sections 3-108(a) and 2-201 of the Tort Immunity Act were inapplicable. In reaching this conclusion, the court reasoned that a school district's policy of acquiescing to sexual harassment of female students by male students, resulting in an educational environment hostile to females, presented a viable basis on which a private action for damages could be maintained under article I, section 18. However, the court entered an order pursuant to Supreme Court Rule 308 (155 Ill.2d R. 308), certifying the following questions of law for interlocutory appellate review:
1. Whether a female public school junior high school student has a private right of action under article I, §18 of the Illinois Constitution for an alleged violation of equal protection of the law against the public school district that owns and operates the junior high school where the student attends, when the damage alleged is for personal injuries suffered by the student as a result of the public school's failure to protect her from sexual assault by fellow male junior high students on school grounds during school hours.
2. If such a private action exists, is the public school district immune from any such liability under section 2-201 and/or section 3-108(a) of the Local Governmental Employees Tort Immunity Act .
Where questions of law are presented on appeal, a reviewing court exercises a de novo standard of review. Woods v. Cole, 181 Ill.2d 512, 515 (1998); Roubik v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 285 Ill. App.3d 217, 219 (1996). Generally, the scope of a review on interlocutory appeal is limited to the questions as certified by the trial court. Kincaid v. Smith, 252 Ill. App.3d 618, 622 (1993). However, where necessary, a reviewing court may go beyond the certified question, and examine directly the order that gave rise to the appeal. Bright v. Dicke, 166 Ill.2d 204, 208 (1995).
The pivotal question presented for our consideration is whether a private action for damages can be sustained under article I, section 18, of the Illinois Constitution for sex discrimination. Article I, section 18, of the Illinois Constitution provides:
"The equal protection of the laws shall not be denied or abridged on account of sex by the State or its units of local government and school districts. " Ill. Const.1970, art. I, §18. In People v. Ellis 57 Ill.2d 127, 130 (1974), our Supreme Court determined that the purpose of this amendment was to guarantee to females rights equal to those of males by raising the standard of review in actions challenging the imposition of sex classifications by the State. Referencing the constitutional debates, the Ellis court explained that at the time of the constitutional convention, neither the United States Supreme Court, nor the Illinois Supreme Courts used strict scrutiny when examining sex classifications imposed by the State. Ellis, 127 Ill.2d at 132-33. The proponents of article I, section 18, therefore argued that the broad guarantee of equal protection under article I, section 2, of the Illinois Constitution was insufficient to insure equality of rights under the law to females because Illinois courts were extremely permissive in their review of sex classifications under general equal protection. *fn1 Ellis, 127 Ill.2d at 132-33, citing 5 Record of Proceedings, Sixth Illinois Constitutional Convention, 3675-76. Based upon the character of the arguments in debates, the Ellis court concluded, " *** [t]he Constitution of 1970 contains section 18 of article I, and in view of its explicit language, and the debates, we find inescapable ***[i]t was intended to supplement and expand the guaranties of the equal protection provision of the Bill of Rights and requires us to hold that a classification based upon sex is a 'suspect classification' which, to be held valid, must withstand 'strict scrutiny.' " Ellis 57 Ill.2d at 133.
As Ellis demonstrates, the drafters intended article I, section 18, to expand upon the general guarantee of equal protection conferred in article I, section, 2, by designating gender a suspect classification. However, there is no indication that, in expanding the general guarantee of equal protection, the drafters intended article I, section 18 to provide for a private right of action for damages. Rather, the Ellis court's analysis indicates that the type of action contemplated under article I, section 18, by the drafters was an action solely to challenge the constitutionality of classifications by the State. The text of article I, section 18 its self is further indication that the drafters did not intend a private right of action for damages under this provision.
When construing a constitutional provision, courts should begin with the plain language of the provision, which provides the best evidence of what drafters intended to convey to the citizens. Cincinnati Insurance Company v. Chapman, 181 Ill.2d 65, 77 (1998). However, constitutional provisions dealing with a specific subject matter also should be examined in relation to other provisions relevant to the same matter to provide for consistency in interpretation. Rock v. Thompson, 85 Ill.2d 410, 429 (1981). Turning to the text of article I, section 18, we note there is no delineation of remedies, or language of self-execution. We find the absence of such language to be significant, particularly when compared to article I, section 17, of the Illinois Constitution which also prohibits sex discrimination, but does allow for a private right of action.
Article I, section 17, of the Illinois Constitution provides:
"All persons shall have the right to be free from discrimination on the basis of race, color creed national ancestry and sex in hiring and promotion practices of any employer or in the sale or rental of property.
These rights are enforceable without action of the General Assembly, but the General Assembly may establish reasonable exemptions relating to these rights and provide additional remedies for ...