Central 104 civil rights lawsuit is headed for a jury trial

By Angela Simmons

O’FALLON – Central School District 104’s Board of Education is one of five defendants that is slated for a trial by jury in a federal civil rights lawsuit filed by former district coaches and parents of former district students. 

The lawsuit, filed in January 2018, names the District 104 school board, School Board President Sarah Svoboda, current teacher Derek Morgan, and former teachers Andrea Heuring and Emily Weber as defendants in the 28 count lawsuit that alleges discrimination, retaliation, and violation of several state and federal policies, and damages that total in excess of $2 million.

The now 28-count lawsuit filed by Attorney Mark Schuver, stems from multiple district incidents, most notably, the January 2017 incident where Heuring allegedly called two mixed race students “slaves.” The boy and girl were dubbed “Slave one” and “Slave four,” and were then allegedly told to perform several tasks for the teacher, including fetching her coat because she was cold. The students, who have African-American fathers and Caucasian mothers, reported the incident to their parents immediately. Their parents, Theo and Stephanie Afogho and Todd and Krista Porter, spoke out at school board meetings following the incident in an attempt to get answers and apologies from the teacher and district for what had happened to their children. The Afoghos and Todd Porter are listed as plaintiffs in the lawsuit. 

Basketball coaches Marcus Gregory and Christopher Boykin, also plaintiffs, also spoke out at meetings about not only the January incident, but the problematic “culture” in the district. Gregory often came to meetings prepared with statistics, including one where he stated that 49 percent of the district’s students at that time were African American, but there was not one African American teacher or administrator, an issue that the district amended in the following months. 

At the February 13, 2017, regular board meeting, the parents made the public aware of the continued suffering of their children and demanded to now why no action had been taken by the district. After a closed session, Svoboda read a statement that thanked attendees for all of their input, and noted that Superintendent John Bute would be holding a summit to address the issues.

Just three days later, the board called an emergency meeting and Svoboda read a prepared apology statement. 

“We would like to begin by letting everyone know that our lack of an immediate response on Monday night was not due to our lack of concern, or our desire to respond, rather it was so we could discuss this at length as a board, determine the most appropriate course of action, and exercise due diligence before providing a unified response. To the families, and particularly the children involved, we wish to extend a sincere apologies [sic] for the comments that were made to you. In no way do those remarks reflect the beliefs of this district. We thank you for bringing this very important matter to our attention, and we want you to know that we are committed to doing everything we can to prevent this from happening again in the future,” she said. 

Several O’Fallon Township High School students attended the February 16 emergency meeting, and the lawsuit mentions that they were rallied by Heuring. In an answer to the first amended complaint, filed on July 24 by Heuring’s lawyer Kevin E. Myers of the Law Offices of Rouse and Cary, Heuring admits to contacting a student via Facebook message, and admits that after the student asked what Heuring needed them to do, she responded by sending the message “I don’t know if it’s the right thing or not, but can you be there tomorrow night? Can you rally any and all JAMS students that’s know [sic] that I’m not the monster they are portraying me to be?” In the same answer, in paragraph 54, Heuring then contradicts her admitted message, denying that the student rallied other students to attend the meeting at her request. 

Heuring also admits that after the meeting, the students attending the meeting “came into another teacher’s classroom after the board meeting,” but denies further allegations that she, Weber and Morgan threw the students a pizza party. 

Heuring was issued a Notice to Remedy at the February 16 meeting, essentially a written warning. The document, obtained by the O’Fallon Weekly through the Freedom of Information Act (FOIA) with the help of the Illinois Attorney General’s office, states that Heuring should remedy her behavior immediately. Part of the behavior needing correction included “your use of inappropriate language towards students that refers to students as ‘your slaves’ even if those communications are intended to be humorous.” 

The document continues “Your comments to student council members on January 18, 2017, have seriously jeopardized the mental health of these students. You have failed to establish a positive learning environment for your students. Your demeanor with students is negative and derogatory and has created a hostile teaching environment.”

At the April 10, 2017, board meeting, the board separated from Heuring. After a FOIA request, the O’Fallon Weekly obtained documents showing that she had, in fact, tendered her resignation on April 6, 2017, after months of intense investigation from the district, including being escorted from the JAMS building on March 14, 2017, by Dawn Elser, the current superintendent of District 104. 

The documents further showed that Heuring would be placed on an administrative leave and given her full pay and benefits through May 22, 2017, the effective date of her resignation. 

Weber also resigned in May of 2017, letting the board know that she would not be returning for the 2017-18 school year, and would instead be seeking other opportunities. In the lawsuit, Weber is named as a defendant for what the parents’ attorney alleges is repeated retaliation against students, including refusing to enter grades that kept students from playing in the Illinois state championship basketball game. 

Using the same attorney as Heuring, Kevin E. Myers, Weber also answered for the two counts of retaliation against her. In documents filed by Myers on July 24, 2018, Weber denied all allegations of retaliation and civil rights violations, including meeting with high school students after the emergency February 16, 2017, board meeting, and moved that the courts “dismiss Plaintiffs’ Complaint with prejudice and award Defendants’ costs.” 

Morgan, who was at that time the co-president of the Illinois Central Federation of Teachers and Support Staff Local Union 4673, is named in the lawsuit in one count of retaliation. Morgan has also motioned several times through his lawyer, Charles Baricevic, for the complaint to be dismissed. 

RETALIATION

The lawsuit’s claims of employment retaliation stem from two incidents in May 2017. 

At the May 8 regular school board meeting, the board, with the exception of former member Chris Monroe, voted not to rehire Todd Porter, Gregory and Boykin as basketball coaches, despite impressive performances. Porter not only took the team to the Illinois state championship where they placed fourth, he was named the Co-Coach of the year by Illinois Basketball Coaches Association. Gregory took the girls basketball team to the state tournament in the 2016-17 season, losing in the first round. The district stated that they were not renewing coaches contracts for employees that were not salaried through the district, but they did vote to rehire one Caucasian coach that was not salaried. The lawsuit alleges that there were no salaried African-American employees at the time, and that the three men were penalized for having spoken out about racism and discrimination at school board meetings. 

Gregory and Porter have been vocal about issues with the F-list affecting African-American athletes since the November 2016 school board meeting, where both men expressed frustration, and Porter’s wife Krista stated that the coaches were attempting to help tutor as many students as possible to raise their grades and get them back to starter status. At that time, Krista noted that her son, one of the minors named “Slave Four” by Heuring, had good grades. 

Gregory previously said “My wife and I are both vocal, fortunately and unfortunately, not just for our kids, but for any kid that we feel is not getting fair treatment.” He has also referenced the “culture” at JAMS and throughout the district several times.

Krista Porter was also demoted from her cashier job at JAMS through Aramark, and removed from the school. The board did not vote on this action in open session, but a letter dated May 12 issued to Porter’s supervisor Mary Swofford was signed by Svoboda and stated that the board requested to have Porter removed from JAMS, effective immediately. The letter was obtained by the O’Fallon Weekly through a FOIA request, as was footage of Porter being escorted from the building by Swofford on May 16. The district stated that they did not have to vote on Porter’s removal because she was employed through Aramark, not Central School District 104. 

The Illinois Attorney General, based on suspicions reported by the O’Fallon Weekly that an illegal vote had taken place in closed session, violating the Illinois Open Meeting Act (OMA), ultimately said “The board’s apparent assertion that it could not take final action concerning its contractor’s employee because she was not employed by the district is misplaced.” The letter from the Attorney General’s continues that though the board could have handled the matter administratively, they “elected to take a concrete form of action to address the matter as a public body.” The letter further states “Accordingly, this office concludes the Board violated section 2(e) by taking final action in closed session.”

SEEKING DAMAGES

The lawsuit requests lost wages and damages for the coaches. 

A response and motion to dismiss the complaints from Attorney Joseph Baczewski of Brandon and Schmidt Attorneys at Law, a Carbondale firm representing both Illinois Central School Board 104 and Board President Sarah Svoboda, was filed as recently as October 25, 2018. The document states “The named Plaintiffs have not established that as public employees, their speech to the Illinois Central School District 104 Board of Education was not done to advance private interests. Plaintiff’s speech was thus not protected by the First Amendment, and Count XIV is properly dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6).” 

The document further states that the counts naming Svoboda and the school board are “deficient” because “they fail to state a claim upon which relief may be granted,” and that the suit should be dismissed because the allegations are “founded on separate transactions and occurrences.” 

Baczewski further explains that the claims are all highly individualized, some not having to do with both minor children that are named as plaintiffs, and should be filed separately. 

The original lawsuit was 67 pages and 19 counts but has grown over time. On October 3, a new amended complaint was filed that totals 100 pages with 28 counts against the defendants. The breakdown of the counts in the current complaint is Morgan: one count of retaliation in violation of the U.S. Constitution Section 1983; Weber: one count of retaliation in violation of U.S. Constitution Section 1983, one count of retaliation in violation of the Illinois Human Rights Act; Svoboda: one count of discrimination and one count of retaliation, both in violation of U.S. Constitution Section 1983; Heuring: one count of discrimination and one count of retaliation in violation of U.S. Constitution Section 1983, one count of discrimination and one count of retaliation in violation of the Illinois Human Rights Act; Illinois Central School District 104 School Board: two counts of discrimination and two counts of retaliation in violation of the Illinois Human Rights Act, one count of discrimination and one count of retaliation in violation of Title VII of the Civil Rights Act, one count in violation of the Whistleblower Act, two counts of discrimination and retaliation in violation of the U.S. Constitution Section 1983, two counts of discrimination and retaliation in violation of Title VI of the Civil Rights Act, and two counts of discrimination and retaliation in violation of the Illinois Civil Rights Act of 2003. 

All of the counts seek compensatory damages, lost wages for the former employees, and more. In the amended complaint filed in October, two counts against Heuring, one count against Weber, and the singular count against Morgan each seek “punitive damages in excess of $500,000,” in addition to compensatory damages, prejudgement interests, attorney’s costs and fees, and other possible relief.

Schuver previously stated that many times, the damages requested didn’t have an attached figure because “Their primary goal, not that money isn’t an issue, is to end what has been a very discriminatory system over there.” 

Schuver also previously stated that he and assisting attorney Natalie Lorenz had received calls from more District 104 families after the initial lawsuit was filed, expressing issues that their children and families had faced in the district. During all of the original incidents, Bernadette Tillman-Spiller came forward and spoke at the March 2017 board meeting, stating that Heuring and Weber were both specifically the teachers that had caused issues for her child, and the district had not done anything after Tillman-Spiller had come forward. At the time, she said “I want to know why nothing was done back in 2014 when there were issues with those same particular teachers? When are you going to address it to stop it? Breaking children’s spirits is just not the way.”

On October 2, United States District Court Magistrate Judge Donald G. Wilkerson ordered a final pretrial conference to be set for December 12, 2019, at 9:30 a.m. at the Southern Illinois District East St. Louis Courthouse before Judge Nancy J. Rosenstengel. The jury trial, as requested by Svobodoa, the District 104 Board of Education, Heuring, and Weber, also in the East St. Louis Courthouse before Judge Rosenstengel, is reset for January 14, 2020, at 9 a.m.