In a case filed and litigated before the implementation of the new student disciplinary law (SB100 or Public Act 99-456), Mulvey v. Carl Sandburg High Sch., 2016 IL App (1st) 151615, the court analyzed whether a school district had tort liability due to alleged bullying, and whether an bullying prevention policy and a progressive disciplinary policy created an enforceable contract with a parent and child when the child was allegedly bullied.
The school's policy was a progressive disciplinary policy, listing specific consequences for point accumulations for various behaviors. Additionally, "The athletic handbook stated that coaches had a duty to supervise and provide a safe environment, and required them to "control reckless player behaviors. (before and after games, practices, locker room, and bus supervision)." (Emphasis in original.)" Id.
Plaintiffs "claimed that they were ignored, harassed, humiliated, physically assaulted, injured, and intimidated by their teammates during their high school tenure. They also alleged that certain teammates teased them on specific occasions, both in person and on social media." Id. The basis of Plaintiffs' claims against the school were that the school failed to enforce its policy, therefore breaching its contract with the students.
They [further] claimed that but for the willful and wanton failure of defendants to address the bullying conduct as required by common law, Illinois statutes, and District 230's policies, they would have been protected from the known danger of bullying and would not have suffered the injuries inflicted on them.
Id. In evaluating plaintiffs' claims that the student handbook created a contract, the court held:
... the language in the student handbook does not include any specific promise to prevent or eliminate bullying. Instead, Policy 7:180 states that "[p]reventing students from engaging in these disruptive behaviors is an important District goal." ... 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, nor that every student engaging in such conduct will be disciplined in a particular manner.
Id. The court reasoned that existing case law held that a policy of this nature was a statement of existing law, which, due in part to a lack of consideration (exchange of services), did not create an enforceable contract between the school and the child or his or her parents for the prohibition of bullying.
Citing prior-existing case law to find that application of the school's bullying policy is a discretionary rather than ministerial act, the court held that:
In other words, a District 230 employee must determine whether the student committed a violation and what the consequences would be for the violation before a "point value" is assigned and recorded. A particular point value for a suspension cannot be assigned without a District 230 employee having first determined whether a student should be suspended for a violation of the disciplinary policy. Contrary to plaintiffs' argument, the implementation of the disciplinary policy involves more than a ministerial task.
Id. The court thus held that the Tort Immunity Act immunized the school district from the consequences of bullying.
The case both emphasizes that a school is not required to prevent bullying and the fact that a school district must retain discretion in order to be immunized pursuant to the Illinois Tort Immunity Act. Particularly given the new requirements imposed by SB100 (See our summary of the law here
) and the increased scrutiny from the U.S. Department of Education's Office of Civil Rights, it is important that a school district's policies both comply with the requirements of law regarding bullying, but also that such policies provide school officials the discretion to implement disciplinary consequences in a way that is both consistent and fair in light of the circumstance present in each case. While a school may be immune from tort liability (presuming no willful and wanton misconduct or failure), implementation of a points system will not immunize a school district from argument that its policy either resulted in unfair consequences or inappropriate results.