The opinion of the court was delivered by: John F. Grady, United States District Judge
Before the court is the motion of defendant Board of Education of Rich Township High School District 227 (the "Board") for summary judgment on the only claim that survived defendants' previous summary judgment motion--plaintiff's First Amendment claim against the Board and defendant Selma McDonald arising out of the April 7, 2005 school assembly. The motion concerns whether there is a basis for imposing Monell liability on the Board for the removal of plaintiff from the assembly. Also before the court are the Board's motions to strike portions of plaintiff's Local Rule 56.1 statement and to deem certain facts admitted.
In our memorandum opinion of April 27, 2007, we observed in pertinent part:
A jury will have to decide whether McDonald intended to suppress plaintiff's speech based on its content or whether she genuinely believed that the disruption he caused justified his removal.
Additionally, before making that determination, a jury will have to decide whether McDonald bears responsibility for having plaintiff removed from the assembly. If, for example, [Celeste] Nelson called security without any direction from McDonald, that fact would seriously undermine plaintiff's claim. If Nelson told security to remove plaintiff from the assembly and she made that decision on her own, there would no basis to hold McDonald liable. (And plaintiff did not sue Nelson, so she faces no liability.)
As for the Board, whether there is a basis for holding it liable under Monell for removing the plaintiff from the assembly remains to be seen. Neither side addressed this issue in briefing the motion for summary judgment, so we shall not decide it. We note, however, that to recover against the Board under § 1983, plaintiff must establish either that "(1) the Board has an express policy that, when enforced, causes a constitutional deprivation; (2) the Board has a widespread practice that, although not authorized by written law or express policy, is so permanent and well-settled that it constitutes custom or usage with the force of law; or (3) a person with final policymaking authority caused the constitutional injury." Brandt v. Bd. of Educ. of the City of Chicago, 420 F. Supp. 2d 921, 936 (N.D. Ill. 2006) (citing Calhoun v. Ramsey, 408 F.3d 375, 379 (7th Cir. 2005); see Monell v. Dept. of Soc. Serv. of the City of New York, 436 U.S. 658, 691-693, 98 S.Ct. 2018, 56 L.Ed. 2d 611 (1978)). As relevant here, the only issue appears to be whether plaintiff can prove that a person with final policymaking authority caused a constitutional injury.
Notably, even if a jury finds McDonald liable for a First Amendment violation, it does not necessarily follow that there is a basis for imposing Monell liability against the Board. "Monell's 'policymaker' prong is not a simple determination of whether a person with policy making authority caused a constitutional deprivation." McGreal v. Ostrov, No. 98 C 3958, 2002 WL 1784461, at *3 (N.D. Ill. Aug. 1, 2002). "The 'policymaker' prong of Monell requires more than the act of a policymaker. It is necessary for the policymaker's act to have been in conformance with, or in the creation of, governmental rules that have the effect of law (and then the rule must violate the plaintiff's constitutional rights)." Id. (citing Auriemma v. Rice, 957 F.2d 397, 400 (7th Cir. 1992) and Gernetzke v. Kenosha Sch. Dist. No. 1, 274 F.3d 464, 469-470 (7th Cir. 2001)). Moreover, "a policymaker's decision will rarely have the force of policy unless the decision will govern similar issues in the future." Id.; see Auriemma, 957 F.2d at 400 ("Unless today's decision ought to govern tomorrow's case under a law or custom with the force of law, it cannot be said to carry out the municipality's policy."). The parties should bear the standards for Monell liability in mind as this case proceeds.
Mnyofu v. Board of Educ., No. 03 C 8717, 2007 WL 1308523, at *9-10 (N.D. Ill. Apr. 27, 2007) (footnotes omitted). We also noted that "[a]lternatively, in the event a jury finds that only Nelson, not McDonald, was responsible for removing plaintiff from the assembly and that his removal violated his constitutional rights, plaintiff could attempt to hold the Board liable for Nelson's conduct if he can satisfy Monell's policymaking prong." Id. at *10 n.17.
The basis for the Board's motion is simple: neither McDonald nor Nelson had final policymaking authority, and therefore plaintiff cannot prove a Monell claim under the policymaking prong. And in the Board's view, the court "foreclosed" the possibility of plaintiff prevailing under the other prongs of Monell. (Board's Mem. in Supp. of Mot. for Summ. J. at 4.)
Plaintiff's response is threefold. First, he denies that McDonald and Nelson were not policymakers. Second, he contends that there is sufficient evidence from which a jury could conclude that the Board adopted McDonald's action as its own, or "ratified" it, and therefore became the author of the action for § 1983 purposes. Third, he contends that there are triable issues with respect to the "express policy" and "custom" prongs of Monell. We will address each argument in turn.
Selma McDonald and Celeste Nelson were, respectively, the principal and assistant principal of Rich Central High School in April 2005, when plaintiff was removed from a school assembly. Their status as final policymakers under § 1983 is a question of state law. See Killinger v. Johnson, 389 F.3d 765, 771 (7th Cir. 2004). The Illinois School Code provides that the Board "has full power to manage the schools and to adopt all rules and regulations needed for that broad purpose." Duda v. Board of Educ., 133 F.3d 1054, 1061 (7th Cir. 1998) (citing 105 ILCS 5/10-20.5). Principals assume administrative responsibilities under the supervision of the superintendent and in accordance with the Board's reasonable rules and regulations. 105 ILCS 5/10-21.4a. Nothing in the School Code leads to the conclusion that a principal or assistant principal is a final policymaker with respect to regulating conduct in the schools. See Brandt, 420 F. Supp. 2d at 937.
Plaintiff asserts that the Board relied on a contradictory argument in its previous motion for summary judgment when it stated that "the determinations made by the . . . Building Principal and Assistant Principal were policy decisions." (Defs.' Mem. in Supp. of Mot. for Summ. J. of Oct. 18, 2006 at 12.) But plaintiff neglects to supply the context of this statement. Defendants contended that the decisions were "policy decisions" for which the defendants were entitled to immunity under the Illinois Tort Immunity Act (the "Act").*fn1 The Illinois Supreme Court has defined a "policy decision" as one that requires a governmental employee to balance competing interests and to make a judgment call as to what solution will best serve those interests. See Harinek v. 161 N. Clark St. Ltd. P'ship, 692 N.E.2d 1177, 1181 (Ill. 1998). Whether an individual had final policymaking authority ...