by Joshua B. Rosenzweig (Winter 2017)
A school district and its officials and staff were found to be not legally responsible for bullying directed at students in Mulvey v. Carl Sandburg High School, 2016 IL App (1st) 151615. In Mulvey, the family filed suit for damages allegedly sustained as a result of school bullying directed at their children, students at Carl Sandburg High School. The family sued Sandburg, Consolidated High School District 230 as well as certain district officials and coaches. On appeal, the First District Appellate Court reviewed the lower court’s decision to dismiss and/or enter judgment in favor of the defendants on three causes of action, all of which were based on the defendants’ failure to adequately respond to the family’s complaints of bullying.
Two of the three causes of action, which were titled as breach of contract actions, alleged that Sandburg and the District breached Sandburg’s student handbook and athletic handbook. These counts alleged school and/or district officials ignored the victims’ complaints of bullying conduct by their basketball teammates. The other count alleged willful and wanton conduct, wherein Plaintiffs claimed defendants knew or acted with utter indifference and reckless disregard to the bullying conduct.
Plaintiffs’ latter claims were based on Illinois’ Bullying Prevention Statute which required Illinois school districts to “make suitable provisions for instruction in bullying prevention in all grades and include such instruction in the courses of study regularly taught therein.” (105 ILCS 5/27-23.7). Under the Bullying Statute, bullying is defined as “any severe or pervasive physical or verbal act or conduct, including communications made in writing or electronically, directed toward a student or students that has or can be reasonably predicted to have the effect of” placing a student in reasonable fear of harm, having a detrimental effect on the student’s physical or mental health, or substantially interfering with a student’s academic performance or the student’s ability to participate in school activities. (105 ILCS 5/27–23.7(b))
Additionally, other claims were based on the student handbook and athletic handbook distributed for the 2010–2011 school year, which included explicit policies regarding the prevention of bullying and disciplinary action that school officials could administer when violations occur. The student handbook defined bullying as “conduct and behavior toward other students that, to a marked degree, appear to terrorize, intimidate, or start fights with other students. It includes, but is not limited to, engaging in any form or type of aggressive behavior that does physical or psychological harm to someone else and/or using students to engage in such conduct.” The policy required the superintendent or designee to develop and maintain a program that “fully implements and enforces” the policy. The policy listed progressive disciplinary actions to be implemented and administered by school officials.
With respect to Plaintiffs’ breach of contract counts, defendants contended that, as a matter of law, public school student handbooks do not possess the elements of a legal contract. Defendants also moved to dismiss the willful and wanton count claiming immunity pursuant to section 2–201 of the Illinois Local Governmental and Governmental Employees Tort Immunity Act.
The Circuit Court dismissed the breach of contract claims, and found that the willful and wanton claim should be dismissed due to defendants’ immunity. Plaintiffs appealed. The First District Appellate Court affirmed the dismissal of the Plaintiffs’ claims on appeal. In doing so, the appellate court provided a detailed explanation for its decision.
The appellate court explained that to state a cause of action for breach of contract, Plaintiffs must demonstrate the existence of a valid contract. The appellate court distinguished this case from the Illinois Supreme Court’s decision in Duldulao v. Saint Mary of Nazareth Hospital Center, 115 Ill.2d 482 (1987), relied upon by Plaintiffs, finding that Duldulao was inapposite since Duldulao involved an employee handbook as opposed to a student code of conduct. The appellate court stated that the student handbook provisions cited by the Plaintiffs are “merely hortatory and convey no specific promises.”
The appellate court noted that unlike the employee handbook in Duldulao, which included specific language regarding the termination of employees, the language in the student handbook did not include any specific promise to prevent or eliminate bullying. Instead, the applicable policy, Policy 7:180, stated that “[p]reventing students from engaging in these disruptive behaviors is an important District goal.” (emphasis added.) The appellate court stated that the “creation, implementation, and enforcement of a policy prohibiting bullying, as required by state law, simply does not promise students and parents that attendance at the school guarantees the complete absence of bullying conduct.” Thus, the dismissal of the breach of contract counts was appropriate.
The willful and wanton count alleged that, although defendants had actual notice of the bullying conduct because it occurred in their presence, they acted with utter indifference and reckless disregard to it by allowing it to continue unrestrained. The Tort Immunity Act protects local public entities and public employees from liability arising from the operation of government. (Van Meter v. Darien Park District, 207 Ill.2d 359, 368 (2003)) The law seeks “to prevent the dissipation of public funds on damage awards in tort cases.”
Section 2–201 of the Tort Immunity Act states: “Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused.” (745 ILCS 10/2–201) Section 2–109 of the Tort Immunity Act further provides that “[a] local public entity is not liable for an injury resulting from an act or omission of its employees where the employee is not liable.” (745 ILCS 10/2–109) Sections 2–201 and 2–109 grant absolute immunity to public entities for the performance of discretionary functions, but not ministerial functions. (Malinksi v. Grayslake Community High School District 127, 2014 IL App (2d) 130685, ¶ 8.)
The Illinois Supreme Court has established a two-part test to determine which employees may be granted immunity under the Tort Immunity Act. First, an employee may qualify for immunity “if he holds either a position involving the determination of policy or a position involving the exercise of discretion.” (Emphases in original) (Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill.2d 335, 341 (1998)) If the employee satisfies the first part of the test, he must then show he engaged in both the determination of policy and the exercise of discretion when performing the act from which the plaintiff’s injury resulted.
The Plaintiffs argued that defendants’ duties were ministerial functions to which immunity did not attach. Specifically, the Plaintiffs pointed to the student handbook’s progressive disciplinary policy, which includes an assigned point system for violations. Plaintiffs contend that the individual defendants, including administrators, coaches, and guidance counselors, were merely left to implement the ministerial task of the designated policies established by the school board and apply them.
The appellate court noted that it previously had found the subject immunity provisions applied to bar claims brought regarding failure of school officials to discipline school bullies. In Hascall v. Williams, 2013 IL App (4th) 121131, the court held that, despite the existence of an anti-bullying policy similar to the one at issue here, the acts or omissions at issue constituted discretionary acts and policy determinations, not ministerial acts, which were protected under Section 2–201 of the Tort Immunity Act.
In finding the reasoning exhibited in Hascall persuasive, the appellate court concluded that the anti-bullying policy at issue, which was strikingly similar to the anti-bullying policy in Hascall, was discretionary in nature. Furthermore, the appellate court found that the applicable disciplinary point system required a discretionary determination of whether a violation occurred. The appellate court concluded that the dismissal of the willful and wanton count was appropriate.
Thus, though a school district has an obligation to take affirmative steps in an attempt to prevent bullying in the school environment, it does not breach its handbook merely because it didn’t succeed completely. Nor is it guilty of willful and wanton misconduct when its actions involve such discretionary decisions as to how to prevent and deal with bullying in school.