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Kelly v. Board of Education of McHenry Community High School Dist. 156

September 22, 2006


The opinion of the court was delivered by: Charles P. Kocoras, District Judge


The following matter comes before the court on Defendants', Board of Education of McHenry Community High School District 156 and the individual members of the Board of Education, Mary Kay Losch, Lori Nelson, Deborah Jacobs, Thomas Wagner, David Boger, Diane Vida, and Bob Glascott, Jr., (collectively referred to as "the Board"), Motion to Dismiss Plaintiff, Kathy Kelly's ("Kelly"), Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons set forth in the opinion below, Defendants' Motion is granted.


The relevant facts are gleaned from the allegations set forth in Plaintiff's Amended Complaint, which, for present purposes, we are obligated to accept as true. Kathy Kelly is the mother of Derek Kelly ("Derek") who was a student at McHenry Community High School until he was expelled by the Board on January 18, 2006. Prior to his expulsion, Derek had attended McHenry for three years but had only attained first year status because he had not received enough credits to progress.

McHenry has a school policy prohibiting the promotion of gang related material. Section 8.21 the Student Discipline Code ("the Code") provides for "Prohibited Student Conduct," whereby:

"gross disobedience or misconduct includes...27. Gang Activity: A 'gang' means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more criminal acts or acts in violation of school rules, which has an identifiable name or identifying sign or symbol, and whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity or activity relating to the violation of school rules. Gang activity includes, but is not limited to, any act in furtherance of the gang and possession or use of gang symbols, such as drawings, hand signs and attire." The Code also provides that: "[t]he visibility of gangs and gang related activities in the school setting, by their very nature, cause a substantial disruption of school and school related activities." Derek has allegedly violated Section 8.21 on three separate occasions. Derek's first offense occurred in November 2003 when he drew a "T" in the shape of a pitchfork on an assignment, and his second offense occurred on February 25, 2004 when he drew a crown on a piece of artwork. Derek was instructed on the Code and warned of its implications following each of the violations.

On January 4, 2006, a teacher at McHenry confiscated Derek's student handbook while he was serving an in school suspension and attempting to pass it to another student. The teacher noticed that Derek had drawn a number of five pointed crowns throughout the handbook. On January 6, 2006, Kelly was forwarded a notice from Phillip A. Hintz, the Superintendent of McHenry, notifying her of the charges against Derek, the proposed expulsion, the date of the expulsion hearing, and right to counsel.

On January 12, 2006, a hearing was conducted in front of Dana Fattore Crumley ("Crumley"), a Board appointed hearing officer and attorney from the law firm of Franczak Sullivan P.C. which represents McHenry. Evidence was presented and heard at the hearing regarding the matter from the McHenry administration, Kelly and Derek. Crumley specifically heard testimony from Jill Harris ("Harris"), a resource officer assigned to McHenry from the McHenry Police Department. Harris testified that "the inverted pitchfork, which was the first symbol drawn by Derek, is a sign of disrespect to a gang known as the Gangster Disciples, or to other gangs affiliated with them" and that the "three point and five point crowns, found in Derek's agenda, are a sign of affiliation with the Latin Kings." Harris went on to explain that, "drawing gang symbols and gang graffiti can be very dangerous, even if a person is not in a gang because a person in another gang could misconstrue it as a sign of disrespect." The hearing was recorded but not transcribed, and the tape was subsequently destroyed. Crumley compiled a hearing report and forwarded it to the Board. After considering the report, the Board decided to expel Derek through the end of the 2005-2006 school year. On January 18, 2006, Plaintiff received notice of the Board's decision.

On February 21, 2006, Kelly initiated this suit on behalf of Derek against the Defendants by filing a Complaint in Illinois state court, and on March 17, 2006, the case was removed to this court. On March 22, 2006, Plaintiff filed amended counts III and V-VIII alleging: (III) that the Board violated Derek's first amendment freedom of speech; (V) that Section 8.21 of the Code is void for vagueness and overbroad; (VI) the Board violated Derek's substantive due process rights; (VII) the Board violated Derek's procedural due process rights; and (VIII) spoliation of evidence by the Board. On June 14, 2006, the Board filed the instant Motion to Dismiss the amended counts.


When considering a 12(b)(6) motion to dismiss, a court evaluates the legal sufficiency of a plaintiff's complaint, not the merits. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). We must accept all well-pleaded allegations as true and will not dismiss a case for failure to state a claim unless the plaintiff cannot prove any facts sufficient to support his claim. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). All inferences are to be drawn in a light most favorable to the plaintiff. Jackson v. E.J. Branch Corp., 176 F.3d 971, 978 (7th Cir. 1999). To survive a motion to dismiss, a plaintiff need only provide a "short and plain statement" under Rule 8(a)(2); the particulars of the claim are not required. Midwest Gas Servs. v. Ind. Gas. Co., 317 F.3d 703, 710 (7th Cir. 2002). Nonetheless, to withstand a motion to dismiss, a complaint must allege facts which set forth the essential elements of the cause of action. Doherty v. City of Chi., 75 F.3d 318, 326 (7th Cir. 1996). With these principles in mind, we turn to the instant motion.


Plaintiff's claims fall into two categories: 1) Section 1983 claims and 2) an Illinois state law spoliation claim. Because all of the Section 1983 claims are governed by the same standard of review we will deal with them first. ...

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