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Nuding v. Board of Education of Cerro Gordo Community Unit School District No. 100

May 15, 2000

TAMARA J. NUDING, PLAINTIFF-APPELLANT,
V.
THE BOARD OF EDUCATION OF CERRO GORDO COMMUNITY UNIT SCHOOL DISTRICT NO. 100, PIATT COUNTY, ILLINOIS; T.J. SHAMBAUGH, INDIVIDUALLY; ALAN R. MORR, INDIVIDUALLY; RONALD C. PFLUM, INDIVIDUALLY; WALTER HELM, INDIVIDUALLY; TERRY CURRAN, INDIVIDUALLY; TODD C. HENRICKS, INDIVIDUALLY; VICKY L.
MERCER, INDIVIDUALLY; GILBERT R. JONES, JR., INDIVIDUALLY; LINDA MCCABE, INDIVIDUALLY; AND LEONARD R. BOGLE, INDIVIDUALLY, DEFENDANTS-APPELLEES.



Appeal from Circuit Court of Piatt County Case No. 99L10 Honorable John P. Shonkwiler, Judge Presiding.

The opinion of the court was delivered by: Justice Myerscough

In September 1999, the Board of Education of Cerro Gordo Community Unit School District No. 100 (Board) banned plaintiff, Tamara J. Nuding, from attending all school events and extracurricular activities from September 9, 1999, through September 9, 2000, based on plaintiff's behavior--removing a toy gun from her blouse and a pocketknife from her pocket--at a previous school board meeting. Plaintiff filed a 13-count complaint against defendants, the Board and the Board members individually, seeking in part a preliminary injunction restricting the school board from enforcing its ruling. In October 1999, the trial court denied plaintiff's request for a preliminary injunction. Plaintiff appeals, arguing that (1) the Board violated her first and fourteenth amendment rights under the United States Constitution (U.S. Const., amends. I, XIV), (2) the Board's policy allowing it to ban plaintiff from school activities exceeded its statutory authority, and (3) the trial court erred in denying her preliminary injunction. We affirm.

I. BACKGROUND

In August 1999, several individuals, including plaintiff, took a tour of the district's high school. Plaintiff wore a pair of shorts and a blouse. Plaintiff concealed a black toy gun in her blouse, a pocketknife in her shorts' pocket, and a plastic squirt gun in her purse. The black toy gun did not have any identifiable characteristics to indicate it was not a real gun. After the tour, the Board conducted a regularly scheduled meeting in a classroom of the high school.

(Plaintiff moved to supplement the record in this court with plaintiff's exhibit No. 2 at trial (the black toy gun) and defendant moved to supplement the record in this court with plaintiff's exhibit No. 1 (the plastic squirt gun). These motions were allowed. The black toy gun is 8 inches long, 5 inches high, and 1 1/8 inches thick, a carved wood object, painted black with silver paint denoting the muzzle and screws, hollowed out at the muzzle end, weighing approximately 9.6 ounces. The plastic squirt gun is approximately 9 1/2 inches long, 6 3/4 inches high, and 1 3/8 inches thick, royal blue with neon-yellow- and-orange-patterned handle grips, a neon yellow trigger, with neon orange patterns painted on the barrel and a neon orange barrel tip, weighing approximately 6.6 ounces.)

During the Board meeting, a participant voiced opposition to the Board's recently adopted dress code for students aimed at school safety. Plaintiff then addressed the Board by standing up and asking if what she wore was appropriate under the dress code. After receiving acknowledgment that what she wore was appropriate, she reached into her blouse, removed the black and silver wooden toy gun, and placed it on a table. Plaintiff also retrieved a two-to-three-inch pocket knife from her pocket and placed it on the table next to the gun. Statements plaintiff made during the "demonstration" are controverted, as is the manner in which she placed the objects on the table. Following the demonstration, the Board temporarily recessed so members could attend a sports banquet. Later, the meeting resumed without incident.

The following week, Leonard Bogle, the school district superintendent, filed a written complaint concerning plaintiff's conduct at the Board meeting. The complaint alleged that plaintiff violated Board policy 830.02, which states in part:

"While in attendance at school-sponsored or related activities, functions and meetings, extracurricular activities[,] and athletic events *** no person shall:

4. Do any act which is intended to disrupt the performance or continuance of any school-sponsored or related activities, functions and meetings, extracurricular activities[,] and athletic events.

5. Do any act which is intended to impede or disrupt the proper observance of or participation in any school- sponsored or related activities, functions and meetings, extracurricular activities[,] and athletic events."

In September 1999, the Board acted upon Bogle's complaint and banned plaintiff from attending all school events and extracurricular activities for the remainder of the 1999-2000 school year. Later that month, plaintiff filed a 13-count complaint against defendants, count I of which sought a preliminary injunction against enforcement of the ban.

In October 1999, the trial court conducted a hearing on count I of plaintiff's complaint. Plaintiff testified that her two children attend school within the district and she regularly attended Board meetings. At this Board meeting, she told the Board that she was going to demonstrate against the school dress code. She stood up, twice asked if she was dressed appropriately, and turned once to show what she wore. After an acknowledgment that she was dressed appropriately, she reached into her blouse and took out the black toy gun. As she did so, she stated, "If this would have been real, I could have shot any of [you] within the past hour." She placed the black toy gun on the table, retrieved a pocketknife from her pocket, and placed the knife next to the gun on the table. She did not display the squirt gun in her purse, and denied she fanned the black toy gun across the room and that she "slammed" the gun and knife on the table. Plaintiff explained that she made the demonstration to show the Board that the students' clothing was not the issue. She believed that the demonstration was necessary because she previously heard that the "Board does not listen to [her]."

Cindy Lowe, a longtime friend of plaintiff, testified that plaintiff stated, "This is [a] toy," as she reached into her blouse and retrieved the black toy gun. After placing the black toy gun and pocketknife on the table, the high school principal asked, "What is that? What did she say?" Plaintiff answered, "This is [a] toy." After the demonstration, the only student attending the meeting stated, "That was cool." Lowe denied that plaintiff slammed the gun and pocketknife on the table. Leonard Bogle testified that plaintiff did not forewarn the Board that she would make a demonstration against the school dress code. After retrieving the black toy gun, plaintiff panned the room with the gun and stated, "I could have shot any of you since six o'clock." She did not state that the gun was a toy until she laid it on the table. Bogle stated that he believed the gun was real, and he was "stunned" by plaintiff's actions.

Carol Jean Kussart testified that she observed plaintiff retrieve the gun from her blouse and make a sweeping motion across the room. Plaintiff stated, "I could have shot at every one of you here" and did not identify the gun as a toy until asked what it was by the principal. The gun and knife made a "thump" when plaintiff threw them on the table. Kussart ...


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