Judge clears former CPS special education student’s sexual assault lawsuit for trial

A Cook County judge has cleared a former Chicago Public Schools special education student’s sexual assault lawsuit for trial, declining to side with the school district before a jury hears the case.

“I am not going to dismiss this case today in its entirety,” Judge Lorna Propes told attorneys for the boy’s family and the Board of Education at the end of a two-hour hearing Wednesday at the Daley Center.

The lawsuit, filed in 2017 and now set for trial Feb. 17, concerns a former student at Bogan Computer Technical High School on the Southwest Side who reported in June 2016 that a fellow special education student had sexually assaulted him in a school bathroom on two occasions earlier in the year. Due in part to his intellectual disability, his family’s attorney said, the boy was unable to identify the particular dates of the attacks.

The boy’s family accused Chicago Public Schools, through its employees at Bogan, of failing to properly supervise the two children, both 15 at the time with cognitive disabilities. Their Individualized Education Programs — documents that lay out federally mandated services based on each special education student’s unique needs — called for an adult to accompany them throughout the school, including to the bathroom. The student who is alleged to have committed the assault had a history of aggressive behavior dating back to his elementary school, and the boy who reported being assaulted is unable to self-advocate or recognize dangerous situations.

At issue in the case is whether that supervision was properly in place at the time of the alleged assaults. The boy who reported the rape testified that he was allowed to go to the bathroom alone, while the district says there’s no proof that’s true, calling his deposition in court filings “self-serving” and casting doubt on whether an assault had even occurred.

Propes spent the majority of the two-hour hearing working to sort through the core allegations against the district, calling the complaint repetitive at times because it made the same points in different ways. Propes granted CPS’ request for summary judgement on several allegations that she said didn’t add any additional substance to the family’s argument.

“The main claim, really the only claim that is proximately related to the injuries” is that CPS didn’t properly supervise the two boys in the bathroom, the judge argued.

Propes declined to rule on other issues, however, such as the Board of Education’s assertion that it’s immune from the allegations.

Betsy Grover, the private attorney hired by the school board in the case, cited the Tort Immunity Act, which protects public bodies from certain liabilities, such as failing to enforce a law. In this case, Grover argued an IEP is tantamount to a law, which means CPS has to follow it yet can’t be sued for not doing so. She also said the way by which a school implements a student’s IEP is a discretionary decision, which is a public body’s protected right.

Carolyn Daley, the family’s attorney, said an IEP is federally mandated, but it isn’t exactly accurate to call it a law — each student’s IEP is required to be followed but they’re unique documents. Daley added that implementation of an IEP isn’t discretionary once it has been written and signed.

Grover also argued the date of the alleged assault remaining unknown means it’s unclear which adult or adults at Bogan would have been the ones who failed to supervise the two students — making it impossible to prove for certain that school employees were reckless.

“Nobody has any idea when this could have occurred,” Grover said.

“Undeniably these allegations are sad and upsetting,” Grover said. “John Doe is sympathetic. ... That’s not why we’re here.

“This court cannot make a ruling based on those sympathies.”