Tort Immunity Did Not Fully Immunize CPS for Failure to Protect Student from Sexual Assaulted on Bus

Tort Immunity Did Not Fully Immunize CPS for Failure to Protect Student from Sexual Assaulted on Bus

In Reyes v. The Board of Education of the City of Chicago, 2019 IL App (1st) 180593, the parents and plenary guardians of a disabled female student filed suit against the Chicago Public Schools (CPS) and two CPS staff members after the disabled student was sexually assaulted and harassed while on a special needs school bus by a minor male student. The Appellate Court affirmed in part and reversed in part the Circuit Court’s decision to grant the Defendants’ motion to dismiss the Plaintiffs’ complaint with prejudice.

The Plaintiffs’ alleged that CPS failed to enforce its sibling transportation policy by allowing the student who allegedly sexually assaulted S.R. to be on the special needs bus at the time of the attack.  The  sibling transportation policy in place at the time of the alleged assault that stated a nonspecial needs student who was the sibling of a special needs student could be eligible to ride the special needs bus only upon written application and approval and under two conditions: (1) the Bureau of Student Transportation received and approved a written request for the nonspecial needs sibling to ride the special needs bus, and (2) the nonspecial needs sibling was allowed to ride the special needs bus only so long as the special needs sibling was a student at the school and continued to ride the special needs bus.

The Plaintiffs averred that A.V., who was not a student with physical or developmental disabilities and committed the assault, rode the special needs bus with his brother, allegedly under the sibling transportation policy. However, defendants did not receive, approve, or possess a written request from A.V.’s parents requesting that A.V. ride the bus with his brother, and the Board did not approve or issue an authorization for A.V. to ride the bus or create a route sheet granting A.V. permission to ride the bus with his brother.  The Plaintiff’s alleged in their Complaint, that on multiple occasions, A.V. inappropriately touched, groped, and sexually and physically assaulted S.R.  Additionally, the Plaintiffs alleged that the District and their employees failed to report the sexual assault and that the school bus driver failed to adequately supervise the school bus.

The Board filed a motion to dismiss the second amended complaint under section 2619(a)(9), contending that dismissal was warranted by the Tort Immunity Act. In their motion to dismiss, the Defendants asserted that the Plaintiffs’ claims were barred by sections 2-103 and 2-205 of the Tort Immunity Act.  Also, the defendants maintained that section 4-102 of the Tort Immunity Act shielded them against all allegations that they failed to prevent or protect S.R. from criminal sexual assaults. The Defendants further argued in the motion to dismiss that section 2-201 of the Tort Immunity Act barred plaintiffs’ claims about transportation, placement, and discipline. The Circuit Court granted the Defendants’ motion to dismiss with prejudice.

Ultimately, the Appellate Court found that that sections 2-205 and 2-103 of the Tort Immunity Act applied and barred the Plaintiffs’ claims that the Defendants failed to enforce the Reporting Act, but did not apply to the Plaintiffs’ claims that the Defendants failed to enforce the sibling transportation policy, guidelines for principals, and sexual harassment policy. The Appellate Court found that the transportation policy, guideline for principals, and sexual harassment policy did not carry the force of law within the meaning of the Tort Immunity Act.  As such, the Defendants were not entitled to immunity from the Plaintiffs’ claims with respect to the District’s policies.  Further, the Appellate Court stated that sections 4-102 and 2-201 of the Act did not bar the Plaintiffs’ claims. Specifically, the Court determined that section 4-102 did not grant the Defendants immunity because the Plaintiffs did not allege that the Defendants failed to provide police protection or that the bus driver functioned as police personally.  Also, the Appellate Court determined that the Defendants did not show in its motion to dismiss that section 2-201 immunity applies to the Plaintiffs’ claims that the Defendants’ failed to enforce the sibling transportation policy, follow the guideline for principals, stay awake and supervise the bus, and report abuse under the sexual harassment policy.

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