Ewing et al v. Rockford Christian Schools

Filing 40

MEMORANDUM Opinion and Order: Defendant Rockford Christian Schools' motion to dismiss 28 is granted in part and denied in part. Counts I (in part), IV, and V are dismissed without prejudice. Plaintiffs may file an amended complaint by September 30, 2024; if no amended complaint is filed by then, the dismissals will convert to dismissals with prejudice. See attached order for details. Signed by the Honorable Iain D. Johnston on 8/28/2024: (yxp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
B.E., a minor, and JENNA EWING,
Plaintiffs,
No. 3:24-cv-50016

v.

HON. IAIN D. JOHNSTON

A.W., a minor, and ROCKFORD
CHRISTIAN SCHOOLS,
Defendants.

MEMORANDUM OPINION AND ORDER
Plaintiffs B.E. and her mother Jenna Ewing bring this action against Defendants
A.W. and Rockford Christian Schools (RCS), alleging that A.W. and RCS discriminated against B.E. because she is African American and female. RCS now moves to
dismiss the claims against it. For the following reasons, the motion is granted in part
and denied in part.
LEGAL STANDARD
To survive a motion under Federal Rule of Civil Procedure 12(b)(6), a plaintiff
must allege facts sufficient to “state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Court accepts all well-pleaded
facts as true and draws all reasonable inferences in favor of the plaintiff. Carlson v.
CSX Transp., Inc., 758 F.3d 819, 826-27 (7th Cir. 2014). The moving party bears the
burden of establishing the insufficiency of the plaintiff's allegations. Marcure v. Lynn,
992 F.3d 625, 631 (7th Cir. 2021).

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BACKGROUND
B.E., who is African American and female, attended RCS from August 2022 to
January 2023. Dkt. 22 ¶¶ 4, 8-9. She was bullied by the other students—in particular,
there were several incidents involving a student named A.W. Id. ¶¶ 11-15, 21-26, 37,
40-41. For example, on August 21, 2022, A.W. began repeatedly using racial slurs
(including the n-word) toward B.E. while playing football. Id. ¶ 12. After B.E. reported A.W.’s behavior to the school administration, A.W. and his friends called B.E.
a “snitch” and a “bitch,” following her around to make comments about her race and
gender. Id. ¶ 20. During a football game on September 5, 2022, A.W. called B.E. a
bitch and slapped her across the face. Id. ¶ 23. She slapped him back before trying to
back away as he continued calling her a bitch. Id. ¶ 26. RCS issued B.E. an in-school
suspension for the incident, a decision it upheld after Ms. Ewing (B.E.’s mother) appealed the suspension. Id. ¶¶ 27, 30, 33-34. On January 17, 2023, A.W. and his
friends followed B.E. during lunch and threw a banana at her. Id. ¶ 40.
The bullying caused B.E. “severe physical and emotional distress.” Id. ¶¶ 46-47.
When Ms. Ewing discussed her concerns about B.E.’s treatment with the RCS principal, the principal held back laughter. Id. ¶¶ 31, 43.
DISCUSSION
I.

Section 1981 (Count I)
Under 42 U.S.C. § 1981, “[a]ll persons within the jurisdiction of the United States

shall have the same right in every State and Territory to make and enforce contracts . . . to the full and equal benefit of all laws and proceedings for the security of
persons and property as is enjoyed by white citizens.” 42 U.S.C. § 1981(a); see also
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Bronson v. Ann & Robert H. Lurie Child.’s Hosp. of Chi., 69 F.4th 437, 452 (7th Cir.
2023). For their racial discrimination claim under § 1981, Plaintiffs must allege that
“(1) they are members of a racial minority; (2) the defendant had an intent to discriminate on the basis of race; and (3) the discrimination concerned one or more of the
activities enumerated in the statute.” Morris v. Office Max, 89 F.3d 411, 413-14 (7th
Cir. 1996); Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 756 (7th Cir. 2006).
RCS argues that Ms. Ewing fails to state a claim against RCS because she hasn’t
alleged that RCS did anything on account of Ms. Ewing’s race. Plaintiffs have two
responses, neither of which successfully addresses RCS’ argument. First, Plaintiffs
respond that Ms. Ewing faced discrimination as a result of her association with her
daughter. They rely on a case where the Seventh Circuit noted that it had previously
“assumed for the sake of argument that an associational race discrimination claim is
possible.” Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 348 (7th Cir. 2017)
(discussing Drake v. Minn. Mining & Mfg. Co., 134 F.3d 878 (7th Cir. 1998), in which
white employees had been discharged because of their association with Black employees). But even if Ms. Ewing can bring an associational race discrimination claim, the
complaint doesn’t allege any facts about the discrimination that Ms. Ewing herself
faced. Cf., e.g., Doe v. Twp. High Sch. Dist. 214, No. 19-cv-3052, 2020 U.S. Dist. LEXIS
39065, at *18-20 (N.D. Ill. Mar. 6, 2020) (dismissing an associational discrimination
claim under the Rehabilitation Act brought by a student’s mother because she didn’t
allege any separate injuries specific to herself). The complaint contains only a

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conclusory statement: “RCS discriminated against Ms. Ewing by and through her association to B.E.” Dkt. 22 ¶ 53.
Second, Plaintiffs argue that Ms. Ewing can bring a claim as the parent making
educational decisions for her daughter. But they rely on a case about the statutory
rights that parents have under the Individuals with Disabilities Education Act, see
Stanek v. St. Charles Cmty. Unit Sch. Dist. #303, 783 F.3d 634, 642 (7th Cir. 2015),
and § 1981 doesn’t provide similar procedural rights to parents of students. True, Ms.
Ewing has a fundamental due process right to direct her daughter’s education, but
that isn’t a blank check. See Thomas v. Evansville-Vanderburgh Sch. Corp., 258 F.
App’x 50, 53-54 (7th Cir. 2007). And the complaint doesn’t allege any procedural due
process injuries that Ms. Ewing suffered like the parents in Stanek. Ms. Ewing’s
§ 1981 claim against RCS is dismissed.
As for B.E.’s § 1981 claim, RCS argues that the claim fails because B.E. wasn’t a
party to the contract between Ms. Ewing and RCS. Plaintiffs contend that B.E. has
enforceable rights under the contract as a third-party beneficiary. Whether a thirdparty beneficiary can bring a claim under § 1981 was left open by the Supreme Court.
See Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 476 n.3 (2006). But nearly thirty
years before that decision, the Seventh Circuit reversed the dismissal of a § 1981
claim based on interference with third-party beneficiary rights under a contract,
Jones v. Loc. 520, Int’l Union of Operating Eng’rs, 603 F.2d 664, 665-66 (7th Cir.
1979), and district courts in this circuit have relied on that case to assume that thirdparty beneficiaries also have enforcement rights under § 1981. See, e.g., Kass-Hout v.

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Cmty. Care Network Inc., No. 2:20-CV-441-JPK, 2022 U.S. Dist. LEXIS 158953, at
*11-13 (N.D. Ind. Sept. 2, 2022); Smith v. Chi. Archdiocese, No. 02 C 2261, 2004 U.S.
Dist. LEXIS 11140, at *25 (N.D. Ill. June 16, 2004).
Under § 1981, state law determines whether the plaintiff would have rights as a
third-party beneficiary. Kass-Hout, 2022 U.S. Dist. LEXIS 158953, at *14 (collecting
cases). Illinois law follows the “intent to benefit” rule—courts must determine
“whether the contracting parties intended to confer a benefit upon a nonparty to their
agreement.” XL Disposal Corp. v. John Sexton Contractors Co., 659 N.E.2d 1312, 1316
(Ill. 1995); Hutsonville Cmty. Unit Sch. Dist. No. 1 v. Ill. High Sch. Ass’n, 195 N.E.3d,
798, 804-05 (Ill. App. Ct. 2021). The complaint alleges that Ms. Ewing contracted with
RCS to provide educational services to B.E., Dkt. 22 ¶ 5, and it’s certainly plausible
that RCS also intended for B.E. to benefit from its educational services. That is sufficient, at this stage, for B.E. to seek enforcement of the contract with RCS as a thirdparty beneficiary.
Finally, RCS argues that the complaint fails to allege intentional racial discrimination against B.E. by RCS because RCS said it would punish A.W. and undertook
an investigation. But as long as the factual allegations describe a situation in which
it is plausible that RCS acted with the intent to discriminate against B.E., that is
sufficient to state a claim at this stage. See Swanson v. Citibank, N.A., 614 F.3d 400,
404-05 (7th Cir. 2010) (“A plaintiff who believes that she has been passed over for a
promotion because of her sex will be able to plead that she was employed by Company
X, that a promotion was offered, that she applied and was qualified for it, and that

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the job went to someone else. That is an entirely plausible scenario, whether or not it
describes what ‘really’ went on in this plaintiff's case.”).
Under the factual allegations in this case, it’s plausible that RCS acted with an
intent to discriminate. B.E. is African American, Dkt. 22 ¶ 8, and the complaint alleges multiple incidents where she may have been unfairly punished. For example,
after the fight between A.W. and B.E., only B.E. was punished even though A.W. was
the aggressor. Dkt. 22 ¶¶ 23-27, 33, 37. There’s also the allegation that B.E. received
a double demerit for something not prohibited by the school’s student handbook. Dkt.
22 ¶ 38. It’s plausible that RCS treated B.E. differently in these instances because of
her race. That RCS said it would discipline A.W. and conduct an investigation doesn’t
negate the possibility of intentional discrimination, especially in light of the lack of
disciplinary measures to deter A.W.’s behavior and the RCS principal’s downplaying
of the harm to B.E.. Dkt. 22 ¶¶ 16-17, 31, 43. The complaint sufficiently states B.E.’s
§ 1981 claim against RCS.
II.

Title VI and Title IX (Counts II and III)
Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of

race, color, or national origin by federally assisted programs. 42 U.S.C. § 2000d. Title
IX prohibits discrimination on the basis of sex by federally assisted educational programs. 20 U.S.C. § 1681(a). RCS limits its challenge to these claims to the argument
that the complaint fails to meet the “high standard” for alleging intentional discrimination under Titles VI and IX. Dkt. 28 at 7. 1 But again, the standard is plausibility.
RCS relies on a summary judgment decision to establish this “high bar.” Dkt. 28 at 7
(quoting Doe v. Galster, 768 F.3d 611, 619 (7th Cir. 2014)). But that’s the wrong standard to
1

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See Swanson v. Citibank, N.A., 614 F.3d at 404-05. The earlier analysis that one can
plausibly infer racial discrimination still applies, so the Title VI claim survives. And
as for the Title IX claim, the complaint also alleges that B.E. is female, Dkt. 22 ¶ 9,
so it’s also plausible for the same reasons that RCS intentionally discriminated on
the basis of sex. The Title IX claim also survives.
III.

Illinois Hate Crimes Act (Count IV)
RCS argues that the complaint fails to state a claim under the Illinois Hate Crimes

Act (IHCA) because RCS didn’t do anything that would give rise to liability under the
statute. Plaintiffs respond that RCS encouraged or assisted A.W.’s conduct against
B.E., but RCS argues that its lack of punishment isn’t enough to qualify as encouragement or assistance.
The IHCA itself contains no language about assistance from others. It provides
that a person who has been injured by a hate crime can bring a civil action, but it
doesn’t specify against whom. See 720 ILCS 5/12-7.1(c); cf. Maglaya v. Kumiga, No.
14-cv-3619, 2015 U.S. Dist. LEXIS 101217, at *46-48 (N.D. Ill. Aug. 3, 2015) (construing an IHCA claim against an alleged conspirator as a claim under Illinois’ separate
cause of action for civil conspiracy). Plaintiffs instead argue that RCS is liable based
on an in-concert theory of liability where a defendant “gives substantial assistance or
encouragement.” Borcia v. Hatyina, 31 N.E.3d 298, 305 (Ill. App. Ct. 2015) (quoting
Restatement (Second) of Torts § 876 (Am. L. Inst. 1979)).

apply at this stage. Carlson, 758 F.3d at 827. Indeed, this Court has a standing order reminding parties that they should rely on cases decided on the same procedural posture.

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But Plaintiffs fail to explain how RCS’ inaction qualifies as “substantial assistance
or encouragement.” And a mere failure to act is not enough to trigger in-concert liability. See Simmons v. Homatas, 925 N.E.2d 1089, 1100 (Ill. 2010). Plaintiffs’ only
cited authority, Borcia, held that a passenger could be liable for the negligence of the
driver of a boat because the passenger encouraged the driver to continue operating
the boat at an unsafe speed while intoxicated. Borcia, 31 N.E.3d at 307-08. In that
case, the defendant actively encouraged the driver while the tortious act took place.
In this case, RCS’ “encouragement” was a lack of action after the fact; the complaint
fails to allege any facts that would indicate RCS affirmatively encouraging A.W. to
continue bullying B.E.. The IHCA claim is dismissed.
IV.

Illinois Gender Violence Act (Count V)
RCS similarly challenges the Illinois Gender Violence Act (IGVA) claim by argu-

ing that it didn’t encourage or assist A.W.’s conduct against B.E. 2 Plaintiffs rely on
the statutory language that “perpetrating” gender-related violence includes “personally encouraging or assisting the act or acts of gender-related violence.” 740 ILCS
82/10. But the case they cite is inapposite—in that case, the IGVA claim was dismissed because the plaintiff sought to apply the IGVA retroactively to the defendant’s
actions that predated the act. Doe v. Univ. of Chi., 939 N.E.2d 76, 81 (Ill. App. Ct.
2010). Like with the IHCA claim, the complaint fails to allege any facts that RCS took
more affirmative steps than a failure to act regarding A.W.’s bullying, and Plaintiffs

Whether a corporation, as opposed to a person, can be held liable under the IGVA is an
open question. See Gasic v. Marquette Mgmt., 146 N.E.3d 10, 13 (Ill. App. Ct. 2019). RCS
doesn’t raise this issue, however, so the Court assumes that RCS could have acted “personally” under the IGVA.
2

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fail to explain how inaction qualifies as encouragement or assistance under the IGVA.
See Franks v. Anchez, Inc., No. 22 C 1763, 2022 U.S. Dist. LEXIS 168499, at *5-6
(N.D. Ill. Sept. 19, 2022) (collecting cases where “knowledge plus inaction” was insufficient). The IGVA claim is dismissed.
V.

Breach of Contract and Breach of Duty of Good Faith and Fair Dealing (Counts VI and VII)
RCS challenges these state law contract claims as “impermissibly vague.” Dkt. 28

at 10. But although the complaint could have provided more information, it sufficiently alleges enough facts for these two claims.
Starting with the breach-of-contract claim, the complaint alleges that “RCS
breached the contract when it failed to provide educational services to B.E. in a nondiscriminatory fashion.” Dkt. 22 ¶ 91. Ms. Ewing contracted with RCS to provide educational services to B.E., Dkt. 22 ¶ 5, and it is plausible that those educational services were intended to be free from discrimination. See W. Bend Mut. Ins. v. Schumacher, 844 F.3d 670, 676 (7th Cir. 2016) (“[T]he plausibility determination is ‘a context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.’ ” (citation omitted)). As discussed for the § 1981 claim, the complaint alleges several instances in which RCS plausibly discriminated against B.E.—
and in doing so, RCS would have breached its contract to provide educational services
without discrimination. The breach of contract claim survives the motion to dismiss.
The breach-of-duty-of-good-faith-and-fair-dealing claim survives for similar reasons. Under Illinois law, “[e]very contract contains an implied covenant of good faith
and fair dealing.” Slay v. Allstate Corp., 115 N.E.3d 941, 950-51 (Ill. App. Ct. 2018)

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(quoting McCleary v. Wells Fargo Sec., L.L.C., 29 N.E.3d 1087, 1093 (Ill. App. Ct.
2015)). So, RCS would have had a duty of good faith and fair dealing under the contract with Ms. Ewing to provide educational services for B.E. And a party to a contract
breaches that duty when it “exercise[s] its discretion in a manner contrary to the
reasonable expectations of the parties.” Id. (quoting McCleary, 29 N.E.3d at 1094).
Again, under the plausibility standard on a motion to dismiss and taking into account
the incorporated factual allegations from earlier in the complaint, RCS intentionally
discriminated against B.E.—and in doing so, RCS plausibly acted contrary to Ms.
Ewing’s reasonable expectation that her daughter receive educational services without experiencing discriminatory treatment.
VI.

Negligence (Count XI)
RCS’ challenge to the negligence claim focuses on the duty element of a negligence

claim. RCS initially argues that it cannot find any common law duties that a school
owes to its students related to bullying. Then, in its reply, RCS shifts its argument,
arguing that the complaint is too vague as to what specific duties it allegedly breached
but conceding that schools generally owe common law duties to students.
The complaint alleges that RCS “owed a duty to B.E. to ensure B.E.’s safety and
well-being while she was attending its school” and that it “breached i[t]s duty to B.E.
when it failed to take reasonable steps to address and prevent the discrimination,
bullying, harassment and physical assault B.E. experienced at RCS.” Dkt. 22 ¶¶ 10809. The complaint doesn’t specifically state the source of the duty toward B.E., but
that isn’t a reason to dismiss the claim—“[a] complaint need not identify legal theories, and specifying an incorrect theory is not a fatal error.” Rabe v. United Air Lines,
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Inc., 636 F.3d 866, 872 (7th Cir. 2011); cf. Liston v. King.com, Ltd., 254 F. Supp. 3d
989, 1004 (N.D. Ill. 2017) (“The facts alleged in Count III therefore give rise to a plausible legal claim, whether under a theory of breach of contract, theft, conversion,
fraud, or something else.”).
Plaintiffs rely on three cases to argue that this duty to “ensure B.E.’s safety and
well-being” arises under common law. 3 Although Plaintiffs say that this is about the
duties a school, even a private school, owes to its students, the cases they cite focus
on the duty owed by a business to an invitee. See Gubbe v. Catholic Diocese of Rockford, 257 N.E.2d 239, 242 (Ill. App. Ct. 1970) (“The answer to this question must be
determined irrespective of whether the defendant is a private parochial school or
whether it is considered like any other defendant.”); Leonardi v. Bradley University,
625 N.E.2d 431, 434-35 (Ill. App. Ct. 1993) (finding that a student can be a business
invitee of a university only when engaged in activities conducted or sponsored by the
university). A business can be liable under certain circumstances for physical harm
caused by a third party, and Illinois courts have relied on this principle to determine
whether a business owes a duty to an invitee present on its land. Marshall v. Burger
King Corp., 856 N.E.2d 1048, 1058 (Ill. 2006) (citing Restatement (Second) of Torts
§ 344 (Am. L. Inst. 1965)). For example, if a defendant has reason to know that third-

The complaint states that “RCS’ duties to B.E. arise under common law and under 105
ILCS 5/27-23.7,” Dkt. 22 ¶ 108, but Plaintiffs don’t respond to RCS’ argument that 105 ILCS
5/27-23.7 doesn’t apply because RCS is sectarian. The Court proceeds without considering
duties under 105 ILCS 5/27-23.7. See Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir.
2010) (“Failure to respond to an argument . . . results in waiver.”).
3

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party conduct was “likely to endanger” its customers, then it may owe a duty of reasonable care. Id. at 1062. 4
The complaint alleges that RCS had been informed of A.W.’s behavior toward B.E.,
including the incident where A.W. slapped B.E. Dkt. 22 ¶¶ 16, 30-32. The complaint
also alleges that A.W.’s bullying continued after each of these reports, such as the
incident where A.W. threw a banana at B.E. Dkt. 22 ¶¶ 18, 22-26, 37, 40. On multiple
occasions, RCS was thus aware that A.W.’s behavior was likely to endanger B.E.
again in the future. Thus, it’s plausible that RCS owed B.E. a duty of care arising out
of their business-invitee relationship. And because a lack of duty is RCS’ only basis
for dismissal, the negligence claim survives RCS’ motion to dismiss.
CONCLUSION
The § 1981 claim (Count I) is dismissed in part. The IHCA and IVGA claims
(Counts IV and V) are dismissed. These dismissals are without prejudice. Plaintiffs

Plaintiffs cite only one example of applying this business-invitee duty to a private school,
see Gubbe, 257 N.E.2d at 242, and the Court didn’t find any other examples of common law
duties owed by private schools to their students. But the business-invitee duty is not unlike
the duty of care owed by public schools under Illinois law. And although public schools’ duty
of care is statutory, it’s grounded in the common law principle of in loco parentis. 105 ILCS
5/24-24 (“In all matters relating to the discipline in and conduct of the schools and the school
children, they stand in the relation of parents and guardians to the pupils.”); Gammon v.
Edwardsville Cmty. Unit Sch. Dist., 403 N.E.2d 43, 45 (Ill. App. Ct. 1980). For example, Illinois courts have found that schools owe a duty to their students to maintain discipline. See,
e.g., Brooks v. McLean Cnty. Unit Dist. No. 5, 8 N.E.3d 1203, 1210 (Ill. App. Ct. 2014) (finding
a duty to supervise students as part of this “overall duty to maintain discipline”); Gammon,
403 N.E.2d at 45; Gauthier v. Chi. Bd. of Educ., 2024 IL App (1st) 230442-U ¶ 45 (Ill. App.
Ct. Feb. 20, 2024). Because schools stand in the position of a parent or guardian, liability
under this principle is limited to willful or wanton misconduct, requiring that a “teacher or
school was aware or should have known that the absence of supervision posed a high probability of serious harm or an unreasonable risk of harm.” Jackson v. Chi. Bd. of Educ., 549
N.E.2d 829, 833 (Ill. App. Ct. 1989); see also Doe-2 v. McLean Cnty. Unit Dist. No. 5 Bd. of
Dirs., 593 F.3d 507, 514-515 (7th Cir. 2010).
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may file an amended complaint by September 30, 2024; if no amended complaint is
filed by then, the dismissals will convert to dismissals with prejudice.

Date: August 28, 2024
____________________________
HON. IAIN D. JOHNSTON
United States District Judge

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