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Kelly v. Board of Education of Mchenry Community High School District 156

January 10, 2007


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


This matter comes before this Court on motion by Defendants Board of Education of McHenry Community High School District #156 and the individual named members of the Board of Education (collectively, the "Board") to dismiss all remaining counts of Plaintiff's Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons set forth below, Defendants' motion is granted.


Derek Kelly ("Derek"), son of Plaintiff Kathy Kelly ("Kelly"), was expelled from McHenry Community High School ("McHenry") by the Board on January 18, 2006, for the remainder of the 2005-2006 school year. Derek was expelled after school officials caught him, for a third time in three years, drawing alleged gang signs on his school papers. According to the Board, Derek's drawings violated Section 8.21 of McHenry's student discipline code, which prohibits "gang activity" including the possession or use of gang symbols. The particulars of Derek's actions and the punishment meted out by the Board are discussed in detail in our prior decision in this case, Kelly v. Board of Ed. of McHenry Comm. H.S. Dist. 156, No. 06-C-1512, 2006 WL 2726231 (N.D. Ill. Sept. 22, 2006).

After Derek was expelled, Kelly filed suit against the Board, alleging that the Board's decision was arbitrary, capricious and unreasonable, that Section 8.21 of the McHenry discipline code violated Derek's rights under the First Amendment, and that the Board violated Derek's substantive and procedural due process rights. In our prior decision, we granted the Board's motion to dismiss all of Kelly's constitutional claims.

Defendants now move to dismiss the two remaining counts of Plaintiff's Amended Complaint - Count I, a petition for a writ of certiorari to review, reverse, or remand the Board's decision, and Count IV, a request for injunctive relief in the form of an order enjoining the Board from enforcing its decision to expel Derek.


Kelly has petitioned for a writ of certiorari from this court to review the Board's decision to expel Derek. In Illinois, the common law writ of certiorari "provides a means whereby a party who has no avenue of appeal or direct review may obtain limited review over action by a court or other tribunal exercising quasi-judicial functions." Reichert v. Court of Claims of State of Illinois, 786 N.E.2d 174, 177 (Ill. 2003). The purpose of the issuance of a writ is to "bring the entire record in front of the court to have the court determine, from the record, whether the body acted in accordance with applicable law." Id. Issuance of a writ is discretionary, and given that the Board expelled Derek pursuant to its authority under the Illinois School Code, 105 ILCS 5/10-22.6, and the School Code does not provide for review of decisions of its boards of education, we will exercise our discretion to grant Kelly's petition for a writ. See Stratton v. Wenona Comm. Unit Sch. Dist. No. 1, 551 N.E.2d 640, 646 (Ill. 1990).

This question of administrative review comes before this Court on a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). However, because administrative review requires examination of the underlying record, the typical vehicle for review of administrative decisions is by cross-motion for summary judgment. Dale M. v. Bd. of Educ. of Bradley-Bourbonnais High Sch. Dist. No. 307, 237 F.3d 813, 816 (7th Cir. 2001). Generally, courts may not consider matters outside the pleadings in deciding a 12(b)(6) motion. Loeb Indus., Inc. v. Sumitomo Corp., 306 F.3d 469, 478-79 (7th Cir. 2002). However, as Defendants have attached the report of the Hearing Officer to their motion, and Kelly notes that we have also been provided copies of Derek's drawings and the McHenry administration's recommendation to the Board concerning Derek, we believe we can evaluate the Board's decision based upon the materials currently in front of us.*fn1 Therefore, we will treat the motion as a motion for summary judgment as provided in Fed. R. Civ. P. 56. Tri-Glen v. Int'l Union of Operating Eng'rs, Local 150, 433F.3d 1024 (7th Cir. 2006).

The standard for administrative review at summary judgment differs from the typical standards employed in evaluating a summary judgment motion. J.N. Moser Trucking, Inc. v. United States Dept. of Labor, 306 F. Supp. 2d 774, 781 (N.D. Ill. 2004). In Illinois, the standards of review of a writ are essentially the same as those under the Administrative Review law. Hanrahan v. Williams, 673 N.E.2d 251, 253-54 (Ill. 1996). Courts will not interfere with the decisions of administrative bodies "unless that authority is exercised in an arbitrary or capricious manner or the administrative decision is against the manifest weight of the evidence." Murdy v. Edgar, 469 N.E.2d 1085, 1088 (Ill. 1984). In reviewing administrative decisions, we cannot reweigh the evidence, make independent findings of fact, or substitute our reasoning for that of the agency. Id. This standard essentially comports with the traditional deference afforded to disciplinary decisions of school officials in Illinois. See, e.g., Wilson v. Hinsdale Elementary Sch. Dist. 181, 810 N.E.2d 637, 642-43 (Ill. App. 2004) (stating the rule that "where no deprivation of a constitutional right is alleged, a decision to suspend or expel a student will be overturned only if it is arbitrary, unreasonable, capricious, or oppressive.")*fn2

With these legal principles in mind, we now turn to a consideration of the issues raised in the Board's motion.


Defendants seek dismissal of all remaining counts of Kelly's amended complaint, arguing both that the Board's decision to expel Derek was not arbitrary, capricious, or unreasonable such that this Court should overturn the decision, and that as Derek is now allowed to re-enroll at McHenry Community High School, Kelly's request for injunctive relief is moot.

As the parties do not dispute that Derek has already served his term of expulsion, this Court would ordinarily be inclined to dismiss both remaining counts of Kelly's amended complaint as moot. See Porco v. Trustees of Indiana University, 453 F.3d 390, 394 (7th Cir. 2006). The existence of this expulsion on his record has a practical effect upon Derek's legal rights, however, even after term of the expulsion has expired. See Crane by Crane v. Indiana High School Athletic Ass'n, 975 F.2d 1315, 1318 (7th Cir. 1992). Derek is still a student at McHenry, and his expulsion could affect his academic credits and ability to graduate. Furthermore, leaving an expulsion on his record, however temporary, could have a cumulative effect if he was later subject to discipline at McHenry, or if he were to have his records subpoenaed by juvenile authorities as permitted by 105 ...

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