18 June 1999

	No. 2--98--0713

________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

________________________________________________________________

D.M., by his Mother	)	Appeal from the Circuit Court

and Next Friend, C.H.,	)	of Lake County.

		)

	Plaintiff-Appellant,	)	

	)

v.	)

	)	

NATIONAL SCHOOL BUS SERVICE,	)	No. 96--L--166

INC., 	)	

						  )	

	Defendant		 		  )

						  )

(The Special Education District ) 	Honorable

of Lake County, Defendant-	  )	Henry C. Tonigan III,

Appellee).				  )	Judge, Presiding.

________________________________________________________________

	PRESIDING JUSTICE BOWMAN delivered the opinion of the court:

	Plaintiff, D.M., attended school at a public facility operated

by defendant Special Education District of Lake County (SEDOL). 

SEDOL assigned its students to be transported to and from school by

various buses, each of which traveled a different route.  The buses

were operated by defendant National School Bus Service, Inc.

(NSBS), which is not a party to this appeal.

	Plaintiff sued defendants to recover damages for injuries that

were allegedly inflicted upon him by another student while he was riding his bus home from school.  Count II of plaintiff's amended

complaint alleged that SEDOL willfully and wantonly assigned him to

ride a bus with his assailant, who was known to have previously

abused him, and that SEDOL willfully and wantonly failed to protect

plaintiff from that known danger.  As a result, plaintiff alleged,

plaintiff suffered serious physical harm.  SEDOL moved to dismiss

count II pursuant to section 2--619(a)(9) of the Code of Civil

Procedure (735 ILCS 5/2--619(a)(9) (West 1996)).  SEDOL claimed,

inter alia, that it was entitled to immunity under section 2--201 of the Local Governmental and Governmental Employees Tort Immunity

Act (Tort Immunity Act) (745 ILCS 10/2--201 (West 1996)).  The

trial court granted SEDOL's motion and dismissed count II with

prejudice.

	Pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)),

the court entered an order finding no just reason to delay the

enforcement or appeal of its order dismissing count II.  Plaintiff

now appeals to this court, arguing that neither section 2--201 of

the Tort Immunity Act nor any other applicable law makes SEDOL

immune to plaintiff's complaint.  We affirm.

	A dismissal based on section 2--619 of the Code of Civil

Procedure must be reviewed de novo.  Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 383 (1997).  Plaintiff first argues that the trial court misapplied section 2--201 of the Tort Immunity

Act to afford immunity to SEDOL.

	Section 2--201 states as follows:

				"Except as otherwise provided by Statute, a public

employee serving in a position involving the determination of

policy or the exercise of discretion is not liable for an

injury resulting from his act or omission in determining

policy when acting in the exercise of such discretion even

though abused."  745 ILCS 10/2--201 (West 1996).

Plaintiff initially suggests that this section does not immunize a

public employee who causes injury through willful and wanton

conduct, such as that alleged by plaintiff.  Despite earlier

holdings that agreed with that assertion, the supreme court

recently ruled that only the explicit language of the statute can

limit the immunity provided.  In re Chicago Flood Litigation, 176 Ill. 2d 179, 196 (1997).  Because section 2--201 does not

explicitly exclude willful and wanton conduct from its coverage, it

encompasses the acts alleged here.

	Plaintiff correctly states that the section affords immunity

to a public employee only if his alleged wrongful act or omission

was both a determination of policy and an exercise of discretion. 

Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 341 (1998).  Plaintiff apparently concedes that SEDOL is

staffed by public employees, but he argues that SEDOL's act of

assigning him, without protection, to a bus with a student who

posed a known risk to him was not both a policy determination and

a discretionary act.  Therefore, plaintiff concludes, section 2--

201 provides no immunity to SEDOL. 

	The Tort Immunity Act does not offer statutory definitions of

the concepts of "policy" and "discretion," and courts have

therefore continued to employ common-law definitions.  See Snyder v. Curran Township, 167 Ill. 2d 466, 473 (1995).  A determination of policy is one that requires the balancing of competing interests

and the making of a judgment as to what solution will best serve

each.  West v. Kirkham, 147 Ill. 2d 1, 11 (1992).  

	In Harinek, for example, the plaintiff alleged that, during a fire drill, a city fire marshal negligently directed her to stand

near a heavy door without warning her of the possibility of injury. 

As a result, the plaintiff alleged, she was hit and injured by the

door during the drill.  Harinek, 181 Ill. 2d at 338.  The supreme court ruled that the fire marshal's decisions about where 

individuals should be placed and what warnings should be given were

made through a balancing of "various interests which may compete

for the time and resources of the [fire] department, including the interests of efficiency and safety."  Harinek, 181 Ill. 2d at 342.  Therefore, the court concluded, the public employee made a

determination of policy within the meaning of section 2--201. 

Harinek, 181 Ill. 2d at 343.

	We conclude that SEDOL's alleged wrongful act was a similar

determination.  Contrary to plaintiff's suggestion, we do not

perceive the process by which a school decides which students to

assign to each bus to be a simple one.  The school must presumably

consider a variety of factors, such as the number of available

buses and drivers, the distance each bus would travel, the number

of students who live in each surrounding neighborhood, the capacity

of each bus, local traffic patterns, and so on.  See Posteher v. Pana Community Unit School District No. 8, Christian County, 96 Ill. App. 3d 709, 713 (1981).  The school must then reach a

decision that fulfills a set of seemingly incompatible objectives,

including speed, safety, and cost-effectiveness.  This is a complex

calculus that clearly requires the balancing of competing interests

and the making of a judgment that will satisfy them most

efficiently.  Therefore, SEDOL's decision to assign plaintiff as it

did was a determination of policy.      

	Plaintiff also contends that SEDOL's act was not an exercise

of discretion but rather a merely ministerial act that deprived it

of immunity under section 2--201.  See Harinek, 181 Ill. 2d at 341.

	"[D]iscretionary acts are those which are unique to a

particular public office, while ministerial acts are those

which a person performs on a given state of facts in a

prescribed manner, in obedience to the mandate of legal

authority, and without reference to the official's discretion

as to the propriety of the act."  Snyder, 167 Ill. 2d at 474.

Defined another way, the making of a decision about whether or how

to perform an act is generally discretionary, whereas the actual

mechanical performance of the act is merely ministerial.  See

Herman v. Will Township, 284 Ill. App. 3d 53, 59 (1996).  

	Plaintiff correctly states that SEDOL is statutorily obligated

to provide transportation to all of its students who live more than

11⁄2 miles from school.  105 ILCS 5/29--3 (West 1996).  Plaintiff

asserts that, by placing particular students on selected buses,

SEDOL was simply carrying out this order in a ministerial fashion. 

However, the statute that commands a school to provide

transportation offers virtually no guidance as to how it should do

so.  105 ILCS 5/29--3 (West 1996); Posteher, 96 Ill. App. 3d at 712.  Instead, a school is left to determine how best to comply with the statute, given its available resources and unique

circumstances.  Posteher, 96 Ill. App. 3d at 713.  Like the fire marshal in Harinek, SEDOL was under no legal mandate to perform its duty in a prescribed manner; it had to weigh various options and

find, on its own, the maximally efficient arrangement.  Harinek, 181 Ill. 2d at 343.  Therefore, SEDOL's ultimate decision was an

exercise of discretion.

	We also note that, after SEDOL determined which students would

ride each bus, it engaged NSBS, a distinct entity, to carry out

that decision.  It was thus NSBS that performed the ministerial act

of transporting students in the manner prescribed by SEDOL. 

SEDOL's selection of the manner it prescribed, however, was a

discretionary act.  See Snyder, 167 Ill. 2d at 474.

	Because we have determined that SEDOL's act of assigning

plaintiff, without extraordinary protection, to a bus with the

student who allegedly harmed him was both a determination of policy

and an exercise of discretion, section 2--201 of the Tort Immunity

Act provides immunity to SEDOL in this case.  Therefore,

plaintiff's first argument fails.   

	Plaintiff next argues that the School Code (105 ILCS 5/24--24,

34--84a (West 1996)), not the Tort Immunity Act, governs the level

of immunity to which SEDOL is entitled.  Section 24--24, which applies to cities with populations of 500,000 or fewer, and section

34--84a, which applies to cities with populations exceeding 500,000

(105 ILCS 5/34--1.01 (West 1996)), state in relevant part:

		"[T]eachers, other certificated educational employees,

and any other person *** providing a related service for or

with respect to a student shall maintain discipline in the

schools, including school grounds which are owned or leased by

the board and used for school purposes and activities.  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.  This relationship shall

extend to all activities connected with the school program ***

and may be exercised at any time for the safety and

supervision of the pupils in the absence of their parents or

guardians."  105 ILCS 5/24--24, 34--84a (West 1996).

	Because these provisions confer on educators the status of

parents or guardians of their students, courts have interpreted

them to grant educators the same level of immunity granted to

parents and guardians.  Therefore, educators are not liable to

their students for ordinary negligence but are liable for willful

and wanton misconduct.  Kobylanski v. Chicago Board of Education, 63 Ill. 2d 165, 170-73 (1976).  Whereas plaintiff's claim alleging willful and wanton conduct was properly dismissed if section 2--201

of the Tort Immunity Act applies, his allegations would be

sufficient to state a cause of action under the School Code.

	Plaintiff's contention that the School Code trumps the Tort

Immunity Act in this case is based on the principle that a specific

statute, governing a particular subject, prevails over a more

general statute that also applies.  Hernon v. E.W. Corrigan Construction Co., 149 Ill. 2d 190, 195 (1992).  Plaintiff argues that the Tort Immunity Act, which applies to all public entities,

including public schools, is more general than the School Code,

which applies only to schools, both public and private.  Therefore,

he concludes, the School Code's provisions must govern his claim

against SEDOL.

	This same argument was recently made to the supreme court by

the plaintiff in Henrich v. Libertyville High School, No. 84094 (Ill. June 1, 1999) (supplemental opinion upon denial of

rehearing).  In an appeal from our decision in the same case (Henrich v. Libertyville High School, 289 Ill. App. 3d 809 (1997)), the plaintiff alleged that he was seriously injured because he was

ordered to participate in a contact sport by a substitute physical

education teacher at his public school, despite the fact that the

school had been informed by the plaintiff's doctor that he could not safely participate in such an activity.  A count of the

plaintiff's complaint, alleging that the school caused his injury

through willful and wanton conduct, was dismissed pursuant to

section 3--108(a) of the Tort Immunity Act (745 ILCS 10/3--108(a)

(West 1996)).  That section provided immunity to local public

entities and public employees who caused injury by failing to

supervise an activity on, or the use of, any public property.  745

ILCS 10/3--108(a) (West 1996).

	Like section 2--201, section 3--108(a) did not exclude willful

and wanton conduct from its protection.  In Henrich, the plaintiff argued that the School Code applies to a more specific range of

cases than does the Tort Immunity Act and that, as a result, the

School Code's imposition of liability for willful and wanton

misconduct applied to his claim.

	The supreme court stated that it did not need to reach the

issue of which statute is more specific, however, because the two

acts do not conflict.  Henrich, slip op. at 9-10.  The court observed that section 3--108(a) immunized "local public entities,"

the definition of which explicitly included public school

districts.  745 ILCS 10/1--206 (West 1996).  The School Code,

meanwhile, affords immunity to both public and private schools. 

Hilgendorf v. First Baptist Church, 157 Ill. App. 3d 428, 429 (1987).  The court thus concluded that, while both statutes

expressly immunize educators, the legislature simply intended the

Tort Immunity Act "to grant public school teachers and public

school districts greater immunity than private school teachers and

private schools."  Henrich, slip op. at 9.  Therefore, the court afforded the greater immunity of section 3--108(a) to the public

school before it and affirmed the dismissal of the plaintiff's

claim alleging willful and wanton conduct.  Henrich, slip op. at 10-11.

	Although this case involves section 2--201 of the Tort

Immunity Act, the conclusion of Henrich remains binding.  Section 3--108(a) expressly provided immunity to "local public entities,"

including public school districts.  Similarly, section 2--201 

immunizes "public employees," who are simply defined as those

employed by a "local public entity," such as, again, a public

school district.  745 ILCS 10/1--206, 207 (West 1996).  Thus, in

keeping with the respective purposes of the School Code and the

Tort Immunity Act, as set out in Henrich, we conclude that the immunity of section 2--201 of the Tort Immunity Act remains

available to SEDOL in this case.   

	We note that, on December 2, 1998, the legislature gave effect

to an amended section 3--108(a), expressly narrowing the scope of its provided immunity to exclude willful and wanton misconduct. 

Pub. Act 90--805, §5, eff. December 2, 1998 (amending 745 ILCS

10/3--108 (West 1996)).  This amendment did not affect the supreme

court's conclusion that the Tort Immunity Act preempts the School

Code and does not affect our application of that holding.  See

Henrich, slip op. at 1, 17-20.  

	We observe that, in the same enactment, the legislature added

the following language to section 1--210, which defines "willful

and wanton conduct": "This definition shall apply in any case where

a 'willful and wanton' exception is incorporated into any immunity

under this Act."  Pub. Act 90--805, §5, eff. December 2, 1998

(amending 745 ILCS 10/1--210 (West 1996)).  We read this amendment

to confirm that only the explicit language of a section of the Tort

Immunity Act can exclude willful and wanton conduct from its

coverage.  See Chicago Flood Litigation,  176 Ill. 2d at 196.  

	The section of the Tort Immunity Act at issue here, section 2-

-201, has not been amended to expressly exclude willful and wanton

conduct from its scope.  Thus, notwithstanding the legislature's

amendment to the section at issue in Henrich, we must still resolve the question of whether SEDOL is entitled to the immunity provided

by section 2--201, or by the School Code, in accordance with the

supreme court's analysis.  We determine that the purposes of both statutes are served by the application of section 2--201 to the

present case, and we must reject plaintiff's second argument on

that basis.

	Plaintiff's final contention is that his claim against SEDOL

is now authorized by the amended section 3--108.  The amended

section states, in relevant part:

		"[N]either a local public entity nor a public employee is

liable for an injury caused by a failure to supervise an

activity on or the use of any public property unless the

employee or the local public entity has a duty to provide

supervision imposed by common law, statute, ordinance, code or

regulation and the local public entity or public employee is

guilty of willful and wanton conduct in its failure to provide

supervision proximately causing such injury."  Pub. Act 90--

805, eff. December 2, 1998 (amending 745 ILCS 10/3--108(b)

(West 1996)).  

	As we stated above, this section was amended to allow a

plaintiff to defeat the immunity of a local public entity or public

employee who causes injury by a willful and wanton failure to

supervise an activity involving public property.  Plaintiff argues

that his complaint sufficiently alleged that SEDOL willfully and

wantonly failed to supervise students on its buses and that he was injured as a result.  Plaintiff contends that the amended section

3--108, which took effect on December 2, 1998, may be applied

retroactively to his cause of action which, according to his

complaint, arose on January 10, 1996.

	The same argument was rejected by the supreme court in

Henrich.  When the legislature changes the applicable law pending an appeal, "a reviewing court should simply apply the law as it

exists at the time of the appeal, unless doing so would interfere

with a vested right."  First of America Trust Co. v. Armstead, 171 Ill. 2d 282, 290 (1996).  Vested rights are protected from

legislative interference by the due process clause of the Illinois

Constitution (Ill. Const. 1970, art. I, §2).  First of America Trust, 171 Ill. 2d at 289.  Although a political subdivision of a state has no due process rights, the supreme court interpreted

section 1--101.1(b) of the Tort Immunity Act (745 ILCS 10/1--

101.1(b) (West 1996)) to place a local public entity or public

employee in the position of a private defendant.  Henrich, slip op. at 19-20.  

	The court held that " '[a] vested ground of defense is as fully protected from being cut off or destroyed by an act of the

legislature as is a vested cause of action.' "  Henrich, slip op. at 19, quoting 16A C.J.S. Constitutional Law §260(b), at 91 (1984).  It determined that the school had a right to total immunity under

the unamended section 3--108 that vested when the plaintiff's cause

of action accrued.  Henrich, slip op. at 19.  Therefore, the court concluded, the amended section 3--108 could not be applied

retroactively to "take that vested right away, impose a new duty on

the school district, and breathe life into this previously barred

claim."  Henrich, slip op. at 19.  	

	Henrich controls the disposition of plaintiff's final argument.  Because section 3--108, as it stood when plaintiff's

claim arose, immunized willful and wanton conduct, SEDOL's immunity

remains intact and plaintiff's argument fails.

	For these reasons, the order of the circuit court of Lake

County is affirmed, and the cause is remanded for further

proceedings.

	Affirmed and remanded.

	INGLIS and McLAREN, JJ., concur.