Federal judge rules parts of Geneva D-304 bullying lawsuit can proceed to trial

GENEVA – A federal judge ruled that portions of a civil rights lawsuit alleging Geneva District 304 officials ignored relentless bullying of a seventh grade boy with autism can continue unless the parties agree to a settlement by May 29.

The father filed the lawsuit in 2022, also naming Geneva Middle School South Principal Terry Bleau and Assistant Principal Daniel Jones as defendants. The father alleges they did not follow the district’s code of conduct and bullying policies in regard to the boy, as well as alleges they also bullied the boy themselves.

The complaint, filed in the U.S. District Court for the Northern District of Illinois, alleges the district violated the Americans with Disabilities Act, due process under the 14th Amendment and alleges unlawful disability harassment under the Rehabilitation Act.

The original complaint did not include a dollar amount for damages, but a March 8 court filing on the case’s status shows the family said it has incurred expenses from $140,000 to $150,000 for care, treatment and private education for their son, which is ongoing. They estimated that the non-economic cost for the boy’s permanent psychological and physical injuries is $500,000 to $800,000.

The father deferred comment to his attorney. Attorneys for the father and the school district did not respond to messages and emails seeking comment.

14th Amendment due process

Federal Judge Steven Seeger’s 44-page opinion and order Feb. 21 upheld portions of the district’s motion to dismiss.

Seeger also ruled several of the father’s allegations could go forward to trial.

In particular, Seeger is allowing the allegation that Bleau and Jones violated the boy’s due process rights under the 14th Amendment to go forward.

The claim arose from an incident in which Bleau accused the boy of threatening another student.

The boy “denied the allegations, but Bleau did not let him explain what happened. [The boy] then served two in-school suspensions. And [the boy] was later cleared of the charge,” according to the judge’s ruling.

Seeger cited case law, which requires school officials to let students tell their side of the story before imposing dayslong suspensions.

“Bleau gave [the boy] no such opportunity. Plus, [the boy] was innocent, so one could reasonably infer that due process could have prevented the suspension,” the judge wrote. “Thus, [the father] has adequately pled that Bleau violated [the boy’s] right to due process. ... The touchstone of due process is protection of the individual against arbitrary action of government.”

Because Bleau, as principal, has final decision-making authority, the claim against Bleau also is a claim against District 304, Seeger wrote.

Claim of direct bullying

The complaint not only accuses the district of not stepping up to prevent the bullying of their son, it also alleges Bleau and Jones directly bullied the boy.

Bleau allegedly tried to get the boy to say he had threatened to shoot another student, the judge wrote.

When the father said the principal was treating the boy unfairly, “Bleau grew angry and kicked his chair, slammed his hands on the table and started screaming,” according to the ruling.

The district later determined it was another student who made the threatening comments after the boy served two suspensions. Bleau did not apologize and no other student was punished, the judge wrote.

“Specifically, Bleau screamed at [the boy] while roughing up the furniture. That combination of yelling plus physicality could be construed as conscience shocking,” according to the judge’s ruling. “Scaring the living daylights out of a disabled student and putting him at fear for his personal safety might give rise to a claim about shocking the conscience.”

In another incident, a student struck the boy in the shin with a hockey stick during a physical education class causing a deep-tissue bruise.

While the boy was in the nurse’s office, Jones came in and “began to ask rapid-fire questions in a threatening manner,” according to the ruling.

On the boy’s first day back after the hockey stick incident, Jones called him in for questioning “and yelled at [him].”

The boy wanted to call his father, but Jones would not let him and “screamed at [the boy] that ‘he was not going anywhere,’ ” according to the judge’s ruling.

“In light of [the boy’s] age, disability and the setting, that behavior could be conscience shocking,” according to the judge’s ruling.

Jones also allegedly reported to state authorities that the boy was truant despite knowing his situation did not fall under the definition of truancy, the judge wrote.

“In short, [the father] has pled enough to support an inference of direct bullying by both individual defendants,” the judge wrote in denying the district’s motion to dismiss.

‘Extreme and outrageous’

As to another allegation that Jones’ and Bleau’s conduct was “extreme and outrageous,” the judge wrote the legal standard requires their actions “must be so extreme as to go beyond all possible bounds of decency and to be regarded as intolerable in a civilized community.”

“Mere insults, indignities, threats, annoyances, petty oppressions or trivialities” are not extreme and outrageous, he wrote.

Instead, the Illinois Supreme Court identified three factors in assessing outrageous conduct: the amount of power or control involved; whether the objective was reasonable; and whether the defendant knew the plaintiff was “particularly susceptible to emotional distress,by reason of some physical or mental condition or peculiarity.”

“As Geneva Middle’s principal and assistant principal, respectively, Bleau and Jones had significant power and control over [the boy],” the judge wrote.

In addition to autism, the boy has attention deficit hyperactivity disorder, an anxiety disorder and a physical disability that does not allow him to walk normally, according to the lawsuit.

“A child with [his] diagnoses could be more susceptible to emotional distress than the average 12-year-old,” the judge wrote. “Given [the boy’s] age and disability, [the father] plausibly pleads that defendants’ conduct was extreme and outrageous. Therefore, the motion to dismiss ... is denied.”

Also in Seeger’s ruling:

• The district agreed the boy was a disabled person who was bullied but not because of his disability.

Seeger disagreed, stating the boy ran and walked differently because he was disabled and the father “plausibly pled a peer-to-peer harassment theory and the court will allow [those counts] to proceed on that theory.”

• The family requested a safety plan for their son 37 times and accommodations for home-schooling and an online school calendar.

“Defendants argue that ‘the conclusion is obvious as to why the district would reject this safety plan despite it being requested 37 times over – it was neither reasonable nor required,’ ” the judge wrote, noting the district’s motion to dismiss.

Seeger disagreed and ruled the father’s complaint supported the idea that a safety plan request was reasonable. Seeger also allowed that part of the lawsuit to proceed on a “failure to accommodate theory.”

• Seeger agreed that Bleau and Jones could not be individual defendants on allegations of direct discrimination, peer-to-peer harassment and failure to accommodate because the Americans with Disabilities Act and the Rehabilitation Act do not allow for individual liability.

Seeger dismissed those counts with prejudice.

• Illinois law allows schools to make safety plans for individualized students, but it does not require schools to make such plans, Seeger ruled.

Although the family found the safety plan to be unsatisfactory, the district provided a constitutionally sufficient process, Seeger ruled.

• The family argued that other students should have been disciplined.

The district contended the right to a public education does “not entail a due process right to have other students disciplined.”

Seeger agreed there is no constitutionally protected interest in seeing that other students be punished.

• Seeger granted the district’s motion to dismiss the due process claim when Jones denied the boy’s request to call his father.

A child has no protected due process right to call his parents after an incident at school, Seeger ruled.

• Seeger dismissed a claim that the district, Bleau and Jones created danger for the boy.

The district argued it did not create or increase the danger to the boy. The bullies did.

A school’s failure to prevent student-on-student harassment, assault and bullying is not “a state-created danger” and “failure to respond to bullying is not enough to give rise to a claim,” according to the judge’s ruling.

• Seeger also dismissed a claim by the boy’s father that he was discriminated against due to his association with his son, a person with disabilities.

The father had alleged that due to his son’s suffering, he also suffered “tremendous stress, frustration and mental anguish” and had to engage in repeated phone calls, emails and multiple school meetings.

Seeger cited case law in his dismissal of that count because it was an indirect injury.

Settlement

Seeger referred the case to Judge Jeffrey Cole for the settlement conference.

Cole set a schedule that requires the district to make an offer by April 10 and that the plaintiff respond by May 8, records show.

“Also, each side should include in their settlement documents the results in comparable cases,” court records show. “The plaintiff must include the basis for and how he arrived at the damages being claimed. A demand of 100 cents on the dollar is not a good faith demand. Similarly, an offer of zero is not a good faith offer.”