Discretionary Immunity Remains Viable Defense for Illinois Public Schools (original) (raw)

The Local Governmental and Governmental Employees Tort Immunity Act (“Tort Immunity Act”) in Illinois is codified as 745 ILCS 10. One of the enumerated immunities is discretionary immunity. This states that a public employee is not liable for an injury resulting from his act or omission when acting in the exercise of discretion, even though abused. 745 ILCS 10/2-201. In order for discretionary immunity to apply, there must be two elements present: (1) that the public employee is serving in a position involving the determination of policy or the exercise of discretion; and (2) that the decision or choices must be discretionary or involve a policy decision.

This begs the question, what acts are considered “discretionary”? Illinois courts have distinguished discretionary acts from what are considered “ministerial acts.” Ministerial acts are acts that require no discretion. Acts are ministerial when the conduct is merely the execution of a set task. On the other hand, conduct is discretionary whenever the person has the authority to decide whether to act, or how, when or where to act. Wright v. Moss, 2015 IL App (5th) 140021. Courts have repeatedly applied discretionary immunity under a myriad of facts and circumstances.

Fender v. Town of Cicero, 347 Ill. App. 3d 46, 55 (1st Dist. 2004) (police officer choosing not to remove someone from a fire, after balancing the officer’s own safety with his chance of success; Harrison v. Hardin Cnty. Cmty. Unit Sch. Dist. No. 1, 197 Ill. 2d 466, 474 (2001) (a high school principal denied a student’s request for early dismissal due to inclement weather, balancing the student’s interest with the school’s interest in an orderly dismissal); Wrobel v. City of Chicago, 318 Ill. App. 3d 390, 395 (1st Dist. 2000) (laborers fixing potholes hold positions requiring both the determination of policy and exercise of discretion and are therefore eligible for discretionary immunity).

The above illustrates a balance of policy determinations. Policy determinations are “those decisions which require the municipality to balance competing interests and to make a judgment call as to what solution will best serve each of those interests.” Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335 (1998).

Courts have held that the implementation of the school’s anti-bullying policy requires discretionary determinations of whether bullying occurred and the appropriate consequences, not just ministerial tasks. Castillo v. Board of Education, 2018 IL App (1st) 171053 ¶ 15. The appellate court has found that an anti-bullying policy is not required to mandate a particular response to a specific set of circumstances. Hascall v. Williams, 2013 IL App (4th) 121131. The 4th District Appellate Court affirmed these holdings in the Mulvey case. Mulvey v. Carl Sandburg High School, 2016 IL App (1st) 171053. The court concluded as such because the policy at issue includes: (1) conducting a prompt and thorough investigation of alleged incidents of bullying, intimidation, or harassing behavior, (b) providing each student who violates one or more of these policies with appropriate consequences and remedial action and (c) protecting students against retaliation of reporting such conduct.The Mulvey court held that “it is clear that teachers and school administrators must balance various interests which may compete for the time and resources of the school district, including the interests of student safety” Mulvey v. Sandburg, 2016 IL App (1st) 171053.

The 2016 case continued to uphold decisions in favor of finding discretionary immunity. Courts have consistently held that discretionary immunity has applied to decisions regarding hiring and firing employees (Brooks v. Daley, 2015 IL App (1st) 140392); supervising employees (Reed v. City of Chicago, 2002 WL 406983); investigations of sexual abuse claims (Doe I v. Board of Education of Consol. Sch. Dist. 230, 18 F.Supp.2d 954 (N.D. Ill. 1998)); and to investigations to a student’s complaint against his teacher (Moore v. Bd. Of Educ. Of the City of Chi., 300 F.Supp.2d 641 *N.D. Ill. 2004). Schools may continue to be immune under discretionary immunity for decisions regarding personnel decisions, discipline and undertaking investigations.