P.A. 97-1104 provides only illusion of enhanced school safety

I heard about the new school safety statute on WBBM. For details I turned to Capitol Fax.com -- and, sure enough, in a Sidebar, there was a link to the Governor's August 27 press release on HB 5602, now P.A. 97-1104. The new statute becomes effective on January 1, 2013. Or does it merely go into effect?

Among the statutes amended by P.A. 97-1104 is §22-20 of the School Code, 105 ILCS 5/22-20.

The addition to §22-20 made by the new statute is underlined; the language deleted is stricken out:

Sec. 22-20. All courts and law enforcement agencies of the State of Illinois and its political subdivisions shall report to the principal of any public school in this State whenever a child enrolled therein is detained for proceedings under the Juvenile Court Act of 1987, as heretofore and hereafter amended, or for any criminal offense or any violation of a municipal or county ordinance. The report shall include the basis for detaining the child, circumstances surrounding the events which led to the child's detention, and status of proceedings. The report shall be updated as appropriate to notify the principal of developments and the disposition of the matter.

The information derived thereby shall be kept separate from and shall not become a part of the official school record of such child and shall not be a public record. Such information shall be used solely by the appropriate school official or officials whom the school has determined to have a legitimate educational or safety interest principal, counselors and teachers of the school to aid in the proper rehabilitation of the child and to protect the safety of students and employees in the school.

Governor Quinn's press release states that this new statute was inspired by "an incident at School District U-46 in Elgin where a teacher was attacked by a student who was under investigation at the time for two other violent attacks."

If the school had known about the ongoing criminal investigation of the student, you see, the school might have been able to prevent the incident entirely.

The important thing to keep in mind, however, is that §22-20 has been on the statute books, in one form or another, since 1961. At the time of the Elgin school attack which inspired HB 5602's principal sponsors, Rep. Carol Sente (D-Vernon Hills) and Sen. John Millner (R-Carol Stream), the police who were investigating the student for two other violent attacks were under an affirmative, mandatory obligation to report that investigation to the principal of the school where the student was enrolled.

Now, I am not privy to the facts of the Elgin incident. Perhaps the local police followed the law and told the principal about ongoing criminal investigation of the student who subsequent assaulted a teacher. Perhaps the principal was the bottleneck in that case -- afraid to disseminate the information too broadly among the endangered faculty. The new language arguably clarifies the principal's discretion to tell anyone who needs to know, anyone who has "a legitimate educational or safety interest."

But perhaps the police did not tell the principal in Elgin either.

And do you know the consequence that the police face for failing to follow the express mandate of §22-20?

None whatsoever.

This harsh assessment is based on a recent Illinois case, Doe v. Village of Schaumburg, 2011 IL App (1st) 093300.

Full Disclosure: I was one of the attorneys for the losing plaintiffs in that case.

The facts of the case are heart-rending, even in the brief summary offered by the Appellate Court opinion (2011 IL App (1st) 093300, ¶6):

From August to October 2005, [Christopher] Girard was enrolled in a physical science class at Hoffman Estates High School. Minor Doe and minors Amy, Ann, Jane, and Mary Roe, who were enrolled in a special education program at the high school, also attended the class. During the class, Girard forcibly engaged in various acts with them such as touching their “breasts, vagina and buttock” and anal and vaginal penetration. In August 2007, Girard pleaded guilty to a number of sexual assault charges, including charges of assaulting girls at Hoffman Estates High School in 2005.

The tragedy here was that Girard had been arrested by Schaumburg police in July 2004 and charged with aggravated criminal sexual assault of a minor child but the Schaumburg police did not tell the Hoffman Estates principal. A Schaumburg officer may have mentioned something about Girard's arrest to the Hoffman Estates police officer assigned to the school, but that officer did not tell the principal either. (2011 IL App (1st) 093300, ¶5.)

(The case arose on the pleadings; these are the allegations of the Complaints filed by the several victims. Whether discovery against remaining parties reveals different facts is beyond the scope of this post and is entirely beyond my knowledge.)

The Appellate Court agreed that violation of §22-20 of the School Code might give rise to a duty in tort against the police officer defendants (2011 IL App (1st) 093300, ¶11):

We agree with plaintiffs that a violation of a statute such as the School Code can give rise to a tort claim. See Noyola v. Board of Education, 179 Ill. 2d 121, 130-31 (1997). Furthermore, plaintiffs’ well-reasoned arguments may very well support their contention that the School Code imposes certain duties upon those parties subject to its provisions. However, we need not address whether defendants here owed a statutory or common-law duty to plaintiffs. The existence of a duty and the applicability of an immunity are separate issues.

And, the Appellate Court held, the police were immune from liability despite their failure to comply with the law, determining that, "even if defendants owed such a duty and breached that duty, provisions of the Act may immunize them from liability," §§4-102 and 2-205 of the Tort Immunity Act, 745 ILCS 10/4-102 and 745 ILCS 10/2-205, "immunize defendants from the tort liability alleged in plaintiffs' complaints" (2011 IL App (1st) 093300, ¶11).

Section 4-102 of the Tort Immunity Act states:

Neither a local public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide adequate police protection or service, failure to prevent the commission of crimes, failure to detect or solve crimes, and failure to identify or apprehend criminals. This immunity is not waived by a contract for private security service, but cannot be transferred to any non-public entity or employee.

Section 2-205 of the Tort Immunity Act states, "A public employee is not liable for an injury caused by his adoption of, or failure to adopt, an enactment, or by his failure to enforce any law."

The Appellate Court rejected plaintiffs' argument that the failure to follow (to obey) the law is not the same thing as failing to "enforce" a law. "The failure to follow the provisions of a statute is, in essence, the failure to enforce the statute." (2011 IL App (1st) 093300, ¶17.) The Illinois Supreme Court refused to grant leave to appeal.

The Tort Immunity Act serves a valuable purpose, protecting the taxpayers from raids against the public purse. In these difficult economic times, the concern for the public purse is particularly understandable.

But it is absolutely pointless to pass a statute requiring disclosures for the protection of teachers and students and staff unless there is some expectation that the statute will be obeyed. In Doe, the failure to obey the statute resulted in no adverse consequence to the police departments that failed to obey the law. Why should any department be expected to obey the law as now amended?

While P.A. 97-1104 also amends two provisions of the Juvenile Court Act of 1987, P.A. 97-1104 does not amend any provision of the Tort Immunity Act. It therefore provides no new incentive for any police department to follow the law to replace that which was conclusively removed by the Doe court. Nor is it unfair to suppose that police departments or individual officers may be reluctant to advise school authorities of students who have become embroiled in the criminal justice system. The default mode in all juvenile cases is confidentiality. That has been the hallmark of the juvenile justice system in this state from the time it was first established at the turn of the 20th Century. Police officers are trained not to disclose the identities of arrested juveniles outside the juvenile justice system. On paper, at least, P.A. 97-1104 represents a narrow departure from, or exception to, that rule of confidentiality -- but, while Doe remains good law at least, it is a meaningless, toothless exception that can be routinely ignored.

Thus, as stated at the outset, P.A. 97-1104 goes into effect on January 1, 2013. But it will not be effective. It provides a mere illusion of enhanced safety in our schools.