By Robert J. Romano, JD, LLM, St. John’s University, Senior Writer
On August 23, 2021, the parents of two former Plainfield Central High School (Illinois) freshman football players filed a ten-count civil lawsuit against their school district and three of its football coaches in the U.S. District Court, Northern District of Illinois after they were involved in a hazing episode that included a sexual assault.
As per the complaint, the plaintiffs allege that the defendants, Plainfield Community Consolidated School District 202, and coaches Michael Moderhack, Jon Pereiro and Vincent Vasquez, acted willfully and wantonly in depriving them their constitutionally protected substantive due process rights as guaranteed under 42 U.S.C. § 1983, by knowingly and deliberately allowing these so-called ‘hazing traditions’ to be perpetuated on them as freshman football team members.
The two minor-age plaintiffs, through their individual parents, allege that Plainfield Central High School has had longstanding issues concerning hazing and bullying of a sexual nature regarding its football team. Specifically, a rite of passage known throughout the school’s community as ‘Code Blue’ has allegedly been part of the football team’s culture since around 2014 and requires that all freshman submit to various forms of harassment and assaults “varying in nature from forcing a freshmen to the ground and pushing a broom stick between and through their buttocks resulting in penetration and forcing freshmen to strip and allow themselves to be covered in soap and beaten up in the locker room shower with the water running”.
In addition, it is the plaintiffs’ contention that the coaching staff, defendants Moderhack, Pereiro, and Vasquez, knew that the seniors would subject the incoming freshmen to these hazing rituals but intentionally looked the other way because the acts were considered a ‘team bonding’ exercise wherein the new members would feel as if they were part of the team.
On October 14, 2021, the defendants, in accordance with Federal Rule of Civil Procedure 12(b)(6), moved to dismiss the plaintiffs’ complaint in its entirety. The School District’s and coaches’ various arguments for dismissal were that a) the plaintiffs failed to sufficiently allege that the coaches’ indifference to the hazing rose to the level of willful and wanton misconduct, b) the Illinois Tort Immunity Act allows the School District the benefit of immunity and the coaches the benefit of qualified immunity for any alleged constitutional claims, c) the one-year statute of limitations bars the lawsuit, and d) the plaintiffs failed to allege facts that plausibly state a claim for a violation of their substantive or procedural due process rights.
Three months after its filing, on January 19, 2022, Federal District Court Judge Charles P. Kocoras, granted the motion to dismiss, finding the plaintiffs failed to demonstrate how the alleged harm and was caused by the school district. Judge Kocoras indicated that the Court is bound to case precedent and identified several matters wherein a school’s failure to keep students safe from bullying, harassing, and assaulting each other is not a “state-created danger.” Noting, that its only in instances where a school employee actually participates in or actively encourages the assaults that a school district would be held accountable.
The District Court based its decision on the fact that although the Due Process Clause of the Fourteenth Amendment “is a restraint upon governmental action . . . it does not impose a duty on the state to protect against injuries inflicted by private actors.” Continuing, the Court when on to state that the purpose of the Due Process Clause is “to protect the people from the State, not to ensure that the State protect[s] them from each other.” In other words, the state does not have a duty to protect against acts which are considered of ‘private violence’.
The District Court did mention the ‘DeShaney Exception’ that applies when the state creates the danger, but noted that under this exception, “a plaintiff must show that the state affirmatively placed him in a position of danger and that the state’s failure to protect him from that danger was the proximate cause of his injury.” The Court went on to note that “Only the most egregious official conduct will satisfy this stringent inquiry,” and that “Making a bad decision, or even acting negligently, does not suffice to establish egregious behavior shocking enough to result in a constitutional violation.
Interestingly, Judge Kocoras did recognize “that the line between action and inaction (by a school district and coaches) is not always easily drawn.” He continued, stating that in this matter, “the plaintiffs’ complaint focuses on the defendant coaches’ inaction (i.e., failed to observe and monitor the Doe children and the locker room; failed to follow District policies), and that failing to prevent the harm is simply not the same as creating or increasing the risk of harm, which is a fundamental requirement for this type of substantive due process claim.”
In reality, what Judge Kocoras is saying is that when it comes to minor children knowingly being assaulted in a sexual nature with a broomstick, it is easier to find that any indifference or inaction should be “swept under the rug,” than it is to hold those who consciously stood by and did nothing accountable.
