Schroeder, Tommy R. v. Hamilton School Dist ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-1906
Tommy R. Schroeder,
Plaintiff-Appellant,
v.
Hamilton School District, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 98 C 1270--William E. Callahan, Jr.,
Magistrate Judge.
Argued October 26, 2001--Decided March 11, 2002
Before Posner, Manion, and Diane P. Wood,
Circuit Judges.
Manion, Circuit Judge. Tommy Schroeder,
a school teacher, filed suit against his
former employer, the Hamilton [Wisconsin]
School District, the school district
administrator, and several staff
administrators (including school
principals and human resource directors),
pursuant to 42 U.S.C. sec. 1983, alleging
that they violated his right to equal
protection by failing to take reasonable
measures to prevent students and parents,
and occasionally fellow staff members,
from harassing him about his
homosexuality. The district court granted
summary judgment for the defendants.
Schroeder appeals, and we affirm.
I.
In 1990, after teaching for
approximately 15 years in the Hamilton
School District, Tommy Schroeder began
teaching sixth grade at Templeton Middle
School in Hamilton, Wisconsin. Shortly
after arriving at Templeton, Schroeder
disclosed his homosexuality to a few of
his fellow staff members and, during his
second or third year at the school, made
the same disclosure at a public meeting.
This information eventually spread
throughout the Templeton community, and,
beginning with the 1993-94 school year,
Schroeder began receiving unpleasant
inquiries and crude, occasionally cruel,
taunts from students regarding his
homosexuality./1
While there were isolated incidents
involving parents,/2 as well as some of
Schroeder’s colleagues,/3 the bulk of
the harassment he endured at Templeton
came from students. Some of the incidents
were rather mild. For example, a fifth-
grade girl asked Schroeder to verify a
rumor that he was gay. Another student
authored a note complaining that she had
been disciplined by "the gay man."
Finally, other students were found
discussing Schroeder’s homosexuality
during homeroom.
Many of the reported student comments
and actions, however, were far worse--
accusations that he had AIDS; astudent
calling him a faggot and remarking "How
sad there are any gays in the world";
another student physically confronted
Schroeder after shouting obscenities at
him; catcalls in the hallways that he was
a "queer" or a "faggot"; obscenities
shouted at him during bus duty; harassing
phone calls with students chanting
"faggot, faggot, faggot" and other calls
where he was asked whether he was a
"faggot"; and bathroom graffiti
identifying Schroeder as a "faggot," and
describing, in the most explicit and
vulgar terms, the type of sexual acts
they presumed he engaged in with other
men. He reported this harassment on
several occasions, and the defendants
"consequenced" (i.e., a term of art in
education circles for student discipline)
the students identified with the
offensive behavior./4 Much of the
harassment, however, was anonymous, and
therefore went unpunished. As Patty
Polczynski, the associate principal at
Templeton, told Schroeder, "[i]t makes it
difficult to consequence if you don’t
know who it is to consequence."
Because of the widespread, anonymous
nature of the harassment, Schroeder
demanded that the defendants conduct
"sensitivity training" to condemn
discrimination against homosexuals
(presumably for the students at
Templeton-- the chief perpetrators of the
harassment). Instead, Polczynski, after
several meetings with Schroeder,
circulated a memorandum to teachers and
other staff noting that students were
continuing to use "inappropriate and
offensive racial and/or gender-related
words or phrases," and that "[i]f you
observe or overhear students using
inappropriate language or gestures,
please consequence them as you feel
appropriate . . . ." Schroeder considered
this memorandum to be a milquetoast
response to the harassment he was
receiving, especially in comparison to a
previous Polczynski memorandum warning
staff that "derogatory racial comments
and symbols" were "totally unacceptable"
and "contrary to [the school’s] efforts
to create a positive academic environment
for all students." When the harassment
continued, Schroeder expressed his
frustration to Polczynski, and she
responded by telling him that "you can’t
stop middle school kids from saying
things. Guess you’ll just have to ignore
it."
Finally, after several requests for a
transfer, Schroeder was moved to Lannon
Elementary School in the fall of 1996,
where he taught first- and second-grade
classes. After a year’s respite, the
taunts resumed. This time, however, they
came primarily from adults, presumably
the parents of students at Lannon. At the
beginning of his second year at Lannon,
an anonymous memo was circulated by a
parent proclaiming, "Mr. Schroeder openly
admitted at a district meeting that he
was homosexual. Is that a good role model
for our 5-, 6- and 7-year-old children?"
Schroeder also claims that he began
hearing that certain staff members and
parents were calling him a pedophile and
accusing him of sexually abusing small
boys. One parent removed his child from
Schroeder’s class because of Schroeder’s
homosexuality. Another parent’s fear that
Schroeder was a pedophile led defendant
Richard Ladd, Lannon’s principal, to
raise the possibility of "proximity
supervision" (i.e., meaning that
Schroeder could not be alone with male
students). The tires on Schroeder’s car
were slashed, and he began receiving
anonymous, harassing phone calls at home
(e.g. "Faggot, stay away from our kids"
and "We just want you to know you . . .
queer that when we pull out all our kids,
you will have no job").
In February 1998, Schroeder, who has a
protracted history of psychiatric
problems, experienced a "mental
breakdown." On February 11, 1998,
Schroeder’s last day at Lannon, Ladd
approached him about complaints that he
had received from some of his students’
parents. Schroeder told Ladd that he did
not want to talk about it, and that he
was resigning. Later that day, Schroeder
handed Ladd a letter of resignation. At
this point, Ladd offered to arrange for a
substitute teacher to take over
Schroeder’s class and requested that he
take some time to think about whether he
really wanted to resign. Schroeder
declined the request, and never reported
to work at Lannon again. Schroeder did,
however, apply for medical leave and
long-term disability insurance. Pursuant
to terms of the collective bargaining
agreement between the teacher’s union and
the Hamilton School District, the
district terminated Schroeder’s
employment at the end of the 1998-99
school year.
Schroeder contends that the harassment
he received from students, parents, and
fellow teachers/staff members at
Templeton and Lannon, coupled with the
defendants’ failure to properly address
the problem, caused him to have a nervous
breakdown that ultimately resulted in his
termination. He therefore filed suit
against the defendants, pursuant to 42
U.S.C. sec. 1983, alleging that they
denied him equal protection of the law by
failing to take effective steps to
prevent him from being harassed on
account of his sexual orientation. The
parties filed cross motions for summary
judgment, and the district court granted
summary judgment in favor of the
defendants. Schroeder appeals the
decision.
II.
We review de novo the district court’s
decision to grant summary judgment,
construing all facts, and drawing all
reasonable inferences from those facts,
in favor of Schroeder, the non-moving
party. Johnson v. Univ. of Wisconsin-Eau
Claire, 70 F.3d 469, 477 (7th Cir. 1995).
Summary judgment is appropriate if there
is no genuine issue as to any material
fact, and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ.
P. 56(c).
Schroeder argues that the defendants
discriminated against him because of his
sexual orientation, in violation of the
Equal Protection Clause of the Fourteenth
Amendment/5 and 42 U.S.C. sec. 1983./6
According to Schroeder, the defendants
treated him differently when addressing
his complaints of harassment. He contends
that the differential treatment was
motivated by his homosexuality, and that
the defendants were deliberately
indifferent to the constant harassment he
received from students and their parents.
In order to establish an equal
protection violation, Schroeder must show
that the defendants: (1) treated him
differently from others who were
similarly situated, (2) intentionally
treated him differently because of his
membership in the class to which he
belonged (i.e., homosexuals), and (3)
because homosexuals do not enjoy any
heightened protection under the
Constitution, see, e.g., Romer v. Evans,
517 U.S. 620, 634-35 (1996); Bowers v.
Hardwick, 478 U.S. 186, 196 (1986), that
the discriminatory intent was not
rationally related to a legitimate state
interest. Hedrich v. Bd. of Regents of
Univ. of Wisconsin Sys., 274 F.3d 1174,
1183 (7th Cir. 2001); Nabozny v.
Podlesny, 92 F.3d 446, 453 (7th Cir.
1996). As we noted in Nabozny v.
Podlesny,
The gravamen of equal protection lies not
in the fact of deprivation of a right but
in the invidious classification of
persons aggrieved by the state’s action.
A plaintiff must demonstrate intentional
or purposeful discrimination to show an
equal protection violation.
Discriminatory purpose, however, implies
more than intent as volition or intent as
awareness of consequences. It implies
that a decisionmaker singled out a
particular group for disparate treatment
and selected his course of action at
least in part for the purpose of causing
its adverse effects on the identifiable
group.
Id. at 453-54 (citation omitted).
Therefore, "[a] showing that the
defendants were negligent will not
suffice." Nabozny, 92 F.3d at 454. For
Schroeder’s claim to withstand summary
judgment, he must show that there is a
genuine issue of material fact as to
whether the defendants "acted either
intentionally or with deliberate
indifference" to his complaints of
harassment because of his homosexuality.
Id. The district court’s decision to
grant the defendants’ motion for summary
judgment of this claim must be sustained
if the defendants demonstrate that they
did not deny Schroeder equal protection
on account of his sexual orientation, or
that they had a "rational basis" for
doing so. Id.Schroeder attempts to side-step this
analysis completely by inviting us to
"hold explicitly that Title VII
analysis/law shall apply in sec. 1983
cases where discrimination in employment
is the basis for the claimed Equal
Protection violation." Were this a Title
VII case, the defendants could be liable
to Schroeder if he demonstrated that they
knew he was being harassed and failed to
take reasonable measures to try to
prevent it. See, e.g., Hall v. Bodine
Elec. Co., 276 F.3d 345, 356 (7th Cir.
2002). Title VII does not, however,
provide for a private right of action
based on sexual orientation
discrimination. See, e.g., Spearman v.
Ford Motor Co., 231 F.3d 1080, 1086 (7th
Cir. 2000); Hamner v. St. Vincent Hosp. &
Health Care Ctr., Inc., 224 F.3d 701, 704
(7th Cir. 2000). As such, to the extent
Schroeder seeks to have this court
judicially amend Title VII to provide for
such a cause of action, we decline to do
so. It is wholly inappropriate, as well
as constituting a clear violation of the
separation of powers, for this court, or
any other federal court, to fashion
causes of action out of whole cloth,
regardless of any perceived public policy
benefit. See Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 102 (1998)
("’the Constitution’s central mechanism
of separation of powers depends largely
upon common understanding of what
activities are appropriate to
legislatures, to executives, and to
courts.’") (citation omitted).
Furthermore, even if Title VII provided a
private right of action based on sexual
orientation discrimination, sec. 1983
does not provide a remedy for rights
created under Title VII. See, e.g.,
Trautvetter v. Quick, 916 F.2d 1140, 1149
n.4 (7th Cir. 1990); Gray v. Lacke, 885
F.2d 399, 414 (7th Cir. 1989). Finally,
to the extent that Schroeder would like
us to import Title VII employment
discrimination standards into our
traditional equal protection analysis, we
decline the invitation.
We now turn our attention to Schroeder’s
secondary argument--that even under a
traditional equal protection analysis,
the district court’s decision must be
reversed. Schroeder claims that he
presented sufficient evidence to
establish that the defendants treated his
complaints of harassment differently
because of his homosexuality. His primary
contention is that the defendants failed
to address his complaints in the same
manner that they handled complaints of
harassment based on race or gender.
However, as the district court correctly
noted, "[i]n this case there is scant
evidence that the incidents involving
Schroeder were treated differently from
those involving other teachers." Instead,
Schroeder would have us infer
differential treatment because: (1) a
memorandum circulated by the associate
principal at Templeton, Patty Polczynski,
failed to address and condemn the
widespread use by students of "hetero-
sexist" and "anti-gay" comments in the
same manner that a previous memorandum
had done with respect to racist comments
and symbols, and (2) while the Hamilton
School District held several district-
wide staff/teacher training sessions and
conducted annual student orientation
programs to implement its policies
prohibiting race and sex discrimination,
the district never held similar training
sessions or student programs to address
sexual orientation discrimination.
These events do not, however,
demonstrate that Schroeder was treated
differently from his non-homosexual
colleagues, or that he was discriminated
against on the basis of his
homosexuality. First, as Schroeder
acknowledges, the initial memorandum
circulated by Polczynski was generated in
response to the pervasive use of racist
comments and symbols by students in the
Hamilton School District. Polczynski
explained her motivation for circulating
the memorandum in the memorandum itself,
noting that the derogatory racial
comments being made by students were
"contrary to [the school’s] efforts to
create a positive academic environment
for all students." Additionally, the dis
trict-wide staff/teacher training
sessions on race discrimination, referred
to in Schroeder’s appellate briefs, were
conducted in the early 1990’s when the
Hamilton School District began busing
black students into its schools from the
Milwaukee County Schools. The training
sessions and student orientation programs
were conducted to ensure that incoming
minority students were not subjected to
racial discrimination, and to increase
sensitivity to racial issues among school
district personnel and students. By
citing these examples, Schroeder attempts
to set up a false dichotomy--i.e.,
disparity of treatment/protection given
to blacks/women as compared with
homosexuals. In reality, these examples
merely demonstrate the school district’s
priorities for use of time and resources
in favor of its students. And this is
certainly understandable given the
limited resources of today’s public
schools.
Furthermore, in a school setting, the
well-being of students, not teachers,
must be the primary concern of school
administrators. Not only are schools
primarily for the benefit of students,
but it is also clear that children
between the ages 6 to 14 are much more
vulnerable to intimidation and mockery
than teachers with advanced degrees and
20 years of experience. Likewise, with
this vulnerability in mind, school
administrators must be particularly
steadfast in addressing and preventing
any form of verbal or physical
harassment/abuse directed at their
students. See Davis v. Monroe County Bd.
of Educ., 526 U.S. 629, 648 (1999) (where
Supreme Court held that schools receiving
federal funding can be held liable under
Title IX for deliberate indifference to
known acts of student-on-student sexual
harassment). See also Gernetzke v.
Kenosha Unified Sch. Dist. No. 1, 274
F.3d 464, 466-67 (7th Cir. 2001) (court
upheld a school principal’s decision
prohibiting a Bible Club from including a
cross as part of a mural display, where
the principal’s decision was based on a
legitimate fear that the approval "of so
salient a Christian symbol . . . might .
. . require him to approve murals of a
Satanic or neo-Nazi character, which
would cause an uproar."). They must also
be cautious about using police tactics to
deal with nonviolent harassment of a
teacher by students, even if that
harassment is offensive and cruel.
Schroeder also points to the manner in
which the defendants responded to his
complaints about the harassment he
received during "bus duty" as yet another
example of differential treatment and
deliberate indifference. He contends that
this harassment was especially intense.
It is uncontested that Schroeder
requested to be removed from bus duty,
and that his request was denied by school
administrators. There is nothing in the
record, however, indicating that, in
denying his request, the school
administrators treated Schroeder
differently from similarly situated non-
homosexual teachers. Schroeder contends,
however, that Polczynski admitted during
her deposition that if a female teacher
had been subjected to the same type of
harassment, she would have responded
differently. The deposition testimony
Schroeder relies upon in support of this
assertion, however, does not support his
claim. As the district court properly
noted,
Polczynski testified that, when the
students could be identified they were
removed from the bus and questioned. She
also testified that, when the students
could not be immediately identified, she
did not remove every student from the bus
(which typically would have been about 60
students) and question them individually.
Polczynski did not, however, testify that
she would have questioned each student on
the bus in the hypothetical case
involving the female teacher.
In any event, even were we to presume
differential treatment, the fact that the
defendants failed to remove Schroeder
from bus duty does not establish that
they were deliberately indifferent to his
complaints.
Schroeder cites an incident involving
vulgar student-authored bathroom graffiti
as additional evidence of differential
treatment. While admitting that school
administrators identified and punished
the offending students, he claims that
the school’s response to the situation
deviated from its normal policies and
procedures. The district court
determined, however, that Schroeder’s
assertion of differential treatment in
this case was supported only by
"essentially self-serving assertions" and
inadmissible hearsay. The district court,
therefore, ruled that Schroeder "failed
to make a showing sufficient to enable a
reasonable trier of fact to find that he
was treated differently."/7 Having
reviewed the record, we concur with the
district court’s conclusion in this
regard. Furthermore, the fact that
thedefendants promptly addressed the
situation (i.e., removed the graffiti),
and punished the offending students,
forecloses the possibility of any
inference that they were deliberately
indifferent to the harassment.
Finally, Schroeder contends that the
defendants discriminated against him
because the Hamilton School District had
policies against race and sex
discrimination, but did not have one
against sexual orientation
discrimination. While this is most
certainly true, the lack of such a policy
is not evidence that the defendants were
deliberately indifferent to his
complaints of harassment. As previously
noted, unlike blacks and women,
homosexuals are not entitled to any
heightened protection under the
Constitution. Therefore, discrimination
against homosexuals, or for that matter
the elderly, overweight, undersized, or
disfigured, will only constitute a
violation of equal protection if it lacks
a rational basis. See, e.g., Romer, 517
U.S. at 634-35 (where Supreme Court held
that a state constitutional provision
violated the Equal Protection Clause
because it was motivated by a baseless
hostility to homosexuals). Here, there is
no evidence that the defendants’ decision
not to implement a separate policy
against sexual orientation discrimination
was based on any animus toward Schroeder
or homosexuals in general. Schroeder
appears to suggest, however, that the
only way the defendants could have
prevented the harassment was by requiring
all Hamilton School District personnel
and students to attend mandatory training
sessions on sexual orientation
discrimination. There are several
problems with this argument.
First of all, it is hardly reasonable to
expect a school district to devote a
substantial amount of resources to curb
the harassment of one teacher, regardless
of the basis for the harassment. In this
case, other than Schroeder’s situation,
there is no evidence of any
discrimination against homosexual
teachers or students in the Hamilton
School District. Instead, the evidence
shows that one teacher, who happened to
be a homosexual, was harassed because of
his homosexuality. As emphasized in
Equal. Found. of Greater Cincinnati, Inc.
v. City of Cincinnati, 128 F.3d 289, 300-
01 (6th Cir. 1997), another decision
involving a claim of denial of equal
protection on grounds of sexual
orientation discrimination, it is not
irrational to prioritize protective
activities. It is in fact unavoidable,
because of limitations of time and other
resources. Cf. Wayte v. United States,
470 U.S. 598, 607 (1985); United Air
Lines, Inc. v. Civil Aeronautics Bd., 766
F.2d 1107, 1113 (7th Cir. 1985). If, as
in the Hamilton School District, race
relations are a particularly sensitive
area, it is not irrational for school
administrators to devote more time and
effort to defusing racial tensions among
many students than to preventing
harassment of one homosexual teacher.
However, even if the defendants had been
inclined to devote more resources to
prevent Schroeder from being harassed, it
is hard to see how teaching the
district’s teachers and staff about
sexual orientation discrimination would
have prevented the primary perpetrators,
the students and their parents, from
harassing him. In any event, the staff
and faculty were aware of the problem.
But disciplining the students identified
as perpetrators was, in Schroeder’s view,
not a sufficient response.
Schroeder’s exhortation to adopt a
specific policy requiring students to be
sensitive to, or accepting of,
homosexuals is especially problematic in
an elementary or early middle school
(i.e., sixth grade) setting. What would
such a policy say? It is relatively
simple to explain to a child that he or
she should not criticize or offend
someone because of the color of their
skin, or because they are a boy or a
girl. This is why blacks and women are
described as "discrete and insular"
groups. See, e.g., Hicks v. Resolution
Trust Corp., 970 F.2d 378, 382 (7th Cir.
1992). Unfortunately, there is no simple
way of explaining to young students why
it is wrong to mock homosexuals without
discussing the underlying lifestyle or
sexual behavior associated with such a
designation.
Schools can, however, teach their
students that it is wrong to mock anyone,
for any reason. School administrators
can, and should, insist that students
behave in a courteous and respectful
manner toward their teachers and other
students. Such a policy would not require
any discussion of homosexuality, or any
other characteristic or behavior
associated with it. If a student calls a
teacher or another student a "faggot," he
should be disciplined for violating the
school’s general civility code. If a
student assaults a faculty member or
another student because he is a
homosexual, or because he is overweight,
disfigured, undersized, or aged, he
should be suspended or expelled for the
assault. Students who are inconsiderate,
disrespectful, mean, or even vicious, to
others should be "consequenced" for what
they do, not for the underlying
motivation. Students must be taught--at
school if not at home--that it is
reprehensible to cruelly mock and malign
staff members and other students--for any
reason. In this case, the record is
clear: When school administrators
determined that a student harassed
Schroeder by using derogatory terms like
"faggot," the student was punished. By
punishing these students, the defendants
made it abundantly clear to the student
population that such terms were totally
unacceptable in polite society. This is
all that was required of them.
That being said about disrespectful
students, a short word about difficult
parents. Schroeder asserts that he was
also harassed by parents, and that the
defendants did nothing about it because
of his homosexuality. In support of his
claim, Schroeder points to a memorandum,
apparently circulated by a parent, which
questions his qualifications to teach and
criticizes the school’s decision to blend
first- and second-grade classes. The
first paragraph alerted parents to the
fact that Schroeder was an admitted
homosexual, and presented the rhetorical
question, "Is this a good role model for
five-, six- and seven-year-old children?"
Schroeder, like any well-qualified
teacher, should be a good role model for
his students, not because he is
homosexual, but because he is an
effective and enthusiastic teacher who
wants them to learn. Regardless of the
parental attitude displayed in the
memorandum, however, school
administrators have little or no power to
"consequence" the parents of students.
Obviously, if a child picks up foul
language and prejudicial views from his
parents at home, and then displays them
at school, he should be disciplined. A
student cannot, however, be disciplined
for expressing a home-taught religious
belief that homosexual acts are immoral.
See, e.g., Tinker v. De Moines Indep.
Cmty. Sch. Dist., 393 U.S. 503, 512-13
(1969) (holding that students "may
express [their] opinions, even on
controversial subjects . . . if [they do
so] without ’materially and substantially
interfer[ing] with the requirements of
appropriate discipline in the operation
of the school’ and without colliding with
the rights of others.") (citation
omitted); Muller by Muller v. Jefferson
Lighthouse Sch., 98 F.3d 1530, 1536 (7th
Cir. 1996) (holding that "religious
speech cannot be suppressed solely
because it is religious (as opposed to
religious and disruptive or hurtful,
etc.) . . . in the elementary school
environment."). Administrators have to
tiptoe on a narrow path when dealing with
a child’s unwarranted prejudices as
opposed to his sincerely held religious
beliefs. Beyond that, the Equal
Protection Clause does not require a
school district to do anything about
parental unpleasantries unless they take
place on school grounds. Schroeder could
have reported the anonymous harassing
phone calls he received, presumably from
parents, to the telephone company, and
any threats of physical violence to the
police. School administrators have little
authority to control parental activity.
To prevail, Schroeder needed to
demonstrate that the defendants were
deliberately indifferent to his
complaints. He has conceded, however,
that the defendants took some action in
response to nearly all of his complaints.
Nevertheless, as the district court
noted, "[a]t times, the plaintiff appears
to be taking the position that the
defendants are liable merely because the
disciplinary and investigative measures
they took were less than 100 percent
effective." The defendants’ failure to
address, to Schroeder’s satisfaction, his
complaints of harassment does not,
however, establish an equal protection
violation. Given that the majority of the
harassment at issue in this case was
anonymous, we are skeptical about whether
the defendants could have done much more
to prevent the harassment without
expending a disproportionate commitment
of resources, or fashioning a draconian
response that would unnecessarily
infringe on the rights of the non-
offending students.
The question in this case is not whether
the defendants did enough to engender a
more positive attitude among its students
and staff toward homosexuality. Rather,
the only issue is whether the manner in
which the defendants handled Schroeder’s
complaints of harassment denied him equal
protection under the law. School
administrators disciplined the identified
students who misbehaved and degraded him,
and made an effort to discover those not
identified. There is no evidence that the
defendants were deliberately indifferent
to his situation, or that they did not
make a sincere effort to deal with his
complaints./8 On the contrary, the
record shows that the school district was
genuinely concerned about the treatment
Schroeder experienced, and that it did
what reasonably could be expected under
the circumstances. The record is replete
with memos, correspondence, and testimony
indicating that various administrators
and staff positively responded to his
requests. In the absence of deliberate
indifference, federal judges should not
use rational basis review as a mechanism
to impose their own social values on
public school administrators who already
have innumerable challenges to face.
Schroeder’s breakdown and his current
psychological condition are unfortunate.
To the extent that student and parental
harassment of him exacerbated his long
history of personal and psychological
problems, that is also unfortunate. There
is, however, no evidence that the
defendants denied him the equal
protection of the law.
III.
Schroeder failed to demonstrate that the
defendants treated his complaints of
harassment differently from those lodged
by non-homosexual teachers, that they
intentionally discriminated against him,
or acted with deliberate indifference to
his complaints because of his
homosexuality. The district court,
therefore, properly granted the
defendants’ motion for summary judgment.
AFFIRMED.
FOOTNOTES
/1 On appeal, Schroeder cites only one incident of
harassment as having occurred prior to the 1993-
94 school year. He claims that in 1989 an eighth-
grade student called him a "stupid faggot," and
told him that he was "going to blow [his] . . .
head off."
/2 For example, in 1995, the father of one student
told Schroeder, "I don’t want queers teaching my
son."
/3 Schroeder contends that one teacher was overheard
saying that Schroeder was gay and that his former
lover had died of AIDS. Another teacher allegedly
called a friend of Schroeder’s "a flaming homo-
sexual." Schroeder claims that his "sexual orien-
tation was the topic of gossip and innuendo among
teachers [at Templeton]," and that he was told by
others that some teachers were making derogatory
remarks about him. One of the principals at
Templeton made derogatory remarks about gays and
lesbians (although his remarks were apparently
not directed at Schroeder or done in his pres-
ence). Schroeder has conceded, however, that none
of the individual defendants ever made derogatory
comments about him personally or his sexual
orientation. He also testified at his deposition
that no teacher or staff member at Templeton ever
harassed him on a daily basis. Finally, Schroeder
has admitted that he refused to disclose the
names of staff members who he claims harassed him
on occasion.
/4 For example, the students who "graffiti-bombed"
the bathroom were punished for vandalism.
/5 The Equal Protection Clause provides that "[n]o
State shall . . . deny to any person within its
jurisdiction the equal protection of the laws."
U.S. Const. amend. XIV sec. 1.
/6 42 U.S.C. sec. 1983 provides that "[e]very person
who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . .
subjects, or causes to be subjected, any citizen
of the United States or other person within the
jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party injured in an action at law, suit in
equity, or other proper proceeding for redress .
. . ."
/7 Schroeder’s attorney even acknowledged that
"uncovering evidence of differential treatment
based on comparison was difficult."
/8 Our conclusion that the defendants did not act
with deliberate indifference to Schroeder’s
complaints obviates the necessity of addressing
his argument that the defendants are also subject
to sec. 1983 liability under Monell v. New York
City Dept. of Soc. Services, 436 U.S. 658, 694
(1978), and its progeny.
Posner, Circuit Judge, concurring. I join
Judge Manion’s opinion without reservations but
write separately to emphasize that our decision
would have to be the same even if Schroeder were
right that the school administrators’ response to
his complaints about the harassment to which he
was subjected was tepid in comparison to their
response to signs of racial prejudice, so that
they were in a sense, though a severely attenuat-
ed one, "discriminating" in favor of blacks by
giving blacks more protection than they were
giving this homosexual teacher.
From a historical standpoint the core violation
of the equal protection clause is indeed the
selective withdrawal of police protection from a
disfavored group, as the term "equal protection
of the laws" connotes. E.g., DeShaney v.
Winnebago County Dept. of Social Services, 812
F.2d 298, 301 (7th Cir. 1987), affirmed, 489 U.S.
189 (1989); Bohen v. City of East Chicago, 799
F.2d 1180, 1190 (7th Cir. 1986) (concurring
opinion); David P. Currie, "The Constitution in
the Supreme Court: Limitations on State Power,
1865-1873," 51 U. Chi. L. Rev. 329, 353-54 & n.
144 (1984). It is this principle that Schroeder
tries to fit himself within. If police decide not
to protect blacks from criminals, but to protect
whites, that is a denial of equal protection.
Palmer v. Thompson, 403 U.S. 217, 220 (1971);
Hilton v. City of Wheeling, 209 F.3d 1005, 1007
(7th Cir. 2000). And likewise a public school
that decides not to protect black students from
being harassed by other students, but to protect
white students from such harassment, denies equal
protection. Gant ex rel. Gant v. Wallingford
Board of Education, 195 F.3d 134, 139-40 (2d Cir.
1999). But Schroeder is not black. Blacks are one
of the groups that the Supreme Court has decided
deserve special protection against discrimination
by public entities. (Women too--cases like Gant
but concerning failure to protect women equally
with men from sexual harassment are illustrated
by Reese v. Jefferson School District No. 14J,
208 F.3d 736, 740 (9th Cir. 2000). But Schroeder
is no more a woman than he is a black. He is a
white male.) Deliberate discrimination on racial
grounds by a public body is unlawful unless a
compelling case of public need is shown, unless,
that is, in the lingo of the cases, the discrimi-
nation can survive "strict scrutiny."
Homosexuals have not been accorded the constitu-
tional status of blacks or women. This does not
make them constitutional outlaws. Any group, or
for that matter any individual (as the "class of
one" equal protection cases establish, e.g.,
Village of Willowbrook v. Olech, 528 U.S. 562(2000) (per curiam); Albiero v. City of Kankakee,
246 F.3d 927, 932 (7th Cir. 2001); Hilton v. City
of Wheeling, supra, 209 F.3d at 1007; Shipp v.
McMahon, 234 F.3d 907, 916 (5th Cir. 2000)), has
a right not to be victimized by an irrational
withdrawal of state protection. But the word
"irrational" is the key to determining the scope
of this principle. Discrimination against homo-
sexuals by public entities violates the equal
protection clause only if it lacks a rational
basis, as it would do if it were motivated by
baseless hostility to homosexuals, the motivation
that the Supreme Court in Romer v. Evans, 517
U.S. 620, 634-35 (1996), attributed to a state
constitutional provision that forbade municipali-
ties to enact gay-rights ordinances; see also
Stemler v. City of Florence, 126 F.3d 856, 874
(6th Cir. 1997), or if, though devoid of animus,
the discrimination simply bore no rational rela-
tion to any permissible state policy.
Schroeder has not presented evidence from which
a reasonable jury could infer that the defen-
dants, which is to say the school and the school
authorities as distinct from students and par-
ents, were hostile to Schroeder because he was a
homosexual (were hostile to him, period), al-
though the character of the defendants’ response
to his complaint may have been influenced by the
hostility of some parents to the idea of their
kids’ being taught by a homosexual. As for wheth-
er the defendants would have been irrational in
failing to protect a homosexual teacher as assid-
uously as they would have protected a black or
female teacher subjected to the same amount of
abuse, a number of considerations show that they
would not have been. The first is that, as
pointed out in another decision involving a claim
of denial of equal protection on grounds of
sexual orientation, Equality Foundation of Great-
er Cincinnati, Inc. v. City of Cincinnati, 128
F.3d 289, 300 (6th Cir. 1997), it is not irratio-
nal to prioritize protective activities. It is in
fact unavoidable, because of limitations of time
and (other) resources. Cf. Wayte v. United
States, 470 U.S. 598, 607 (1985); United Air
Lines, Inc. v. Civil Aeronautics Bd., 766 F.2d
1107, 1113 (7th Cir. 1985). If race relations are
a particularly sensitive area in a particular
school, the school authorities are not irrational
in deciding to devote more time and effort to
defusing racial tensions than to preventing
harassment of a homosexual (or overweight, or
undersized, or nerdish, or homely) teacher.
It is true that the out-of-pocket costs of some
additional measures that the defendants might
have taken, for example adding to every memo
warning against discrimination on grounds of race
the words "or sexual orientation," would have
been slight. But such an addition would have had
a negligible effect without amplification--except
perhaps to dilute the warning against racial
discrimination. The more amplification, moreover,
the greater the dilution--which shows that the
measure would not have been costless after all.
Second, when most of the abuse directed at a
person is anonymous, the school authorities may
be unable to prevent it without a disproportion-
ate commitment of resources to the effort or a
disproportionate curtailment of student rights.
Indeed, as Judge Manion’s opinion properly empha-
sizes, a public school’s primary commitment is to
its students, not to its teachers, and this
limits the extent to which it must use police
tactics to deal with nonviolent, though offensive
and wounding, harassment of a teacher by stu-
dents.
Third, as also properly emphasized by Judge
Manion, when harassment of a teacher or a student
is based upon his sexual orientation or activity,
the school authorities’ options are limited by an
understandable reticence about flagging issues of
sex for children. It is true that many experts on
education think it best to inform children about
sex as early and as thoroughly as possible, in
order to minimize disease and pregnancy risk;
that certainly has been the trend in the wake of
the AIDS epidemic. Douglas Kirby et al., "School-
Based Programs to Reduce Sexual Risk Behaviors:
A Review of Effectiveness," 109 Public Health
Report 339 (1994). But it is possible for a
rational school administration to fear that if it
explains sexual phenomena, including homosexuali-
ty, to schoolchildren in an effort to get them to
understand that it is wrong to abuse homosexuals,
it will make children prematurely preoccupied
with issues of sexuality.
Fourth, it is a mistake automatically to equate
favoritism to discrimination. The difference is
that while discrimination against a group harms
the group, favoritism for another group may not
harm the nonfavored group, or may harm it too
slightly for the law to take notice. Even if the
school authorities had no good reason to be as
solicitous of the welfare of their black and
female students as they were, it would not follow
that, had they been less solicitous of them,
Schroeder would have benefited; and, if not, then
how was he hurt?
The considerations that I have listed did not
figure in Nabozny v. Podlesny, 92 F.3d 446 (7th
Cir. 1996), on which Schroeder principally re-
lies. A homosexual student was assaulted by other
students--physically, not merely verbally--and
the school administration did nothing at all. We
said: "We are unable to garner any rational basis
for permitting one student to assault another
based on the victim’s sexual orientation, and the
defendants do not offer us one." Id. at 458. The
rational-basis test is not demanding, but the
school there managed to flunk it--and besides
there was evidence that the school officials
actually "laughed and told Nabozny that Nabozny
deserved such treatment because he is gay." 92
F.3d at 452. Such evidence alone could prove
animus and thus obviate any need to prove the
absence of a rational basis for the discrimina-
tion, and it figured importantly in the court’s
holding. See id. at 455. Moreover, it was a case
of violence against a student, not verbal abuse
of a teacher.
The administration of the public schools of
this country in the current climate of rancid
identity politics, pervasive challenges to au-
thority, and mounting litigiousness is an under-
taking at once daunting and thankless. We judges
should not make it even more daunting by inject-
ing our own social and educational values in the
name of "rationality review." So while in hind-
sight it appears that the defendants could have
done more to protect Schroeder from abuse, it is
equally important to emphasize that lackluster is
not a synonym for invidious or irrational. There
is no evidence that the defendants were hostile
to Schroeder because of his sexual orientation--
or because of anything else, for that matter. And
they cannot be said to have been irrational in
failing to do more than they did, as there were
rational considerations counseling against more
vigorous action.
Diane P. Wood, Circuit Judge, dissenting. In
this case, the majority holds that Tommy Schroe-
der, an openly homosexual teacher who was sub-
jected to severe harassment on the job, cannot
survive summary judgment on his claim under 42
U.S.C. sec. 1983 that defendant Hamilton School
District and some of its administrators violated
his rights under the Equal Protection Clause of
the United States Constitution. In my view, this
holding and the rationale both the majority and
concurrence have used to reach it are inconsis-
tent with the Supreme Court’s recognition in
Romer v. Evans, 517 U.S. 620 (1996), that the
Equal Protection Clause does protect homosexuals
as a class and that this protection may not be
denied simply because they may be an unpopular
class in a given state or local community. I
therefore respectfully dissent.
Because the majority has already furnished many
of the relevant facts, I will simply highlight
those that appear especially important to me.
First, there is no dispute that Schroeder was a
very good teacher; he taught successfully for the
District for 22 years. Whatever psychiatric
problems he may have had, see ante at 5, 17
(majority opinion), it is clear that he had them
under control until the unrelenting harassment to
which he was subjected on the job caused him to
have a full mental breakdown on February 11,
1998. He left the school that day a ruined man;
when it became apparent that he could not return,
the District terminated him. His vulnerability in
no way excuses the District for the well-known
reason that tortfeasors take their victims as
they find them. See Restatement (Second) of Torts
sec. 461 (1986 App.); see also Brackett v. Pe-
ters, 11 F.3d 78, 81 (7th Cir. 1993) ("It has
long been the rule in tort law (the ’thin-skull’
or ’eggshell-skull’ rule) not only that the
tortfeasor takes his victim as he finds him, but
also that psychological vulnerability is on the
same footing with physical.").
In addition, Schroeder complained repeatedly to
the school officials about the vicious harassment
the students and occasionally others directed
toward him. Compare Frazier v. Delco Electronics
Corp., 263 F.3d 663, 666 (7th Cir. 2001); Haug-
erud v. Amery School Dist., 259 F.3d 678, 700
(7th Cir. 2001); Adusumilli v. City of Chicago,
164 F.3d 353, 361 (7th Cir. 1998) (all recogniz-
ing that an employer is only liable under Title
VII for co-worker harassment if it is negligent,
and that this normally means the employee must
bring the harassment to the employer’s atten-
tion). See also Davis v. Monroe County Bd. of
Educ., 526 U.S. 629 (1999) (holding that private
damages are available in a suit based on Title IX
of the Education Act only where the funding
recipient acts with deliberate indifference and
the harassment is so severe, pervasive, and
objectively offensive that it effectively bars
the victim’s access to the educational benefit or
program). His efforts to alert the District to
the problem and to seek redress eliminate any
possibility of the District’s defeating this
claim of intentional discrimination through a
claim of lack of knowledge.
Despite the majority’s efforts to find remedial
efforts in the District’s generalized responses,
it is plain that the District never in any way
took action specifically designed to inform the
students that certain words or phrases that
reflect negative views about homosexuals were
out-of-bounds, nor in any other way did it tell
them that harassment or discrimination based upon
Schroeder’s sexual orientation was impermissible.
It would have been easy enough, as part of the
philosophy of "courtesy to all" that the majority
advocates, to prohibit certain words or actions
without a detailed discussion of the sexual
behavior of adults.
Finally, the District treated the class of
homosexuals differently from the way it treated
other classes, such as racial minorities or
gender, as illustrated by the memorandum it
circulated cautioning the community to avoid
"offensive racial and/or gender related words or
phrases." Even the majority concedes this, ante
at 12, when it admits that the District had no
policy against discrimination based on sexual
orientation and did have such policies against
other forms of discrimination. Since even this
court believes that discrimination based on
sexual orientation is not "gender-related," see,
e.g., Spearman v. Ford Motor Co., 231 F.3d 1080,
1084 (7th Cir. 2000), there is every reason to
think that the students of the Hamilton School
District might have thought the same thing and
concluded that the District’s policy did not
require them to avoid what is often referred to
as gay-bashing.
The majority acknowledges that the core viola-
tion of the Equal Protection Clause is "precisely
the selective withdrawal of police protection
from a disfavored group . . . ." Ante at 18
(concurrence). See also Village of Willowbrook v.
Olech, 528 U.S. 562 (2000) (per curiam) (recog-
nizing that even a "class of one" may state a
claim under the Equal Protection Clause). It also
appears to admit that homosexuals might consti-
tute one such group. Ante at 7 (majority opin-
ion); ante at 19 (concurrence). Indeed so, as the
Supreme Court’s Romer decision makes clear. And,
it is worth noting that Romer is the only deci-
sion from the Supreme Court in recent years to
address an equal protectionargument where the
class of homosexuals were singled out for unique-
ly disfavored treatment. Bowers v. Hardwick, 478
U.S. 186 (1986), looked only at the question
whether the enforcement of the Georgia sodomy
statute violated the fundamental rights (meaning
substantive due process rights) of homosexuals in
that state. The Court was careful to note that it
was not addressing any equal protection argument.
See id. at 202-03 n.2. In Webster v. Doe, 486
U.S. 592 (1988), the Court considered the ques-
tion whether an avowedly homosexual man could
bring a lawsuit against the Director of Central
Intelligence, who had fired him expressly because
he was homosexual. The Court concluded that the
plaintiff had no claim under sec. 102(c) of the
National Security Act, 50 U.S.C. sec. 403(c),
because the Director’s termination decisions were
committed to agency discretion (as that term is
used in the Administrative Procedures Act, 5
U.S.C. sec. 701), but it remanded for further
proceedings on the plaintiff’s constitutional
claims, including his claim based on the Equal
Protection Clause. The later case of Boy Scouts
of America v. Dale, 530 U.S. 640 (2000), dealt
with the question whether the First Amendment
associational rights of the Boy Scouts organiza-
tion would be infringed if it was compelled to
accept a scout leader it did not want. In that
case, the reason the Boy Scouts did not want
respondent Dale in its organization was Dale’s
sexual orientation. But the Equal Protection
Clause naturally enough did not figure in the
Court’s opinion because the Boy Scouts is a
private organization and thus not a "state actor"
for purposes of the Fourteenth Amendment. That
leaves us with Romer as the governing Supreme
Court decision on the applicability of the Equal
Protection Clause to the class of homosexuals.
Nothing in Romer justifies a system under which
a state or state actors like the District and its
officials deliberately either omit altogether or
give a diminished form of legal protection from
verbal or physical assaults to individuals in
certain disfavored classes. Yet both the majority
opinion and the concurrence see no problem in the
fact that the defendants intentionally responded
less vigorously to the abuse that finally broke
Schroeder than they themselves would have done
for others. In fact, the majority seriously
understates the case. Never, in the course of
these events, did the administration ever attempt
to dissuade either students, parents, or anyone
else in the broader community of the school
district, to refrain from discrimination or
harassment based upon sexual orientation. Indeed,
as I have already noted, school officials never
even told the students that the words being used
to describe Schroeder transgressed the general
code of civility the majority is recommending to
schools. Schroeder was just told to tough it out.
The majority also makes the unwarranted factual
finding that there was no evidence of hostility
to Schroeder. Even a glance at the facts the
majority itself has set out shows that this is,
at a minimum, a disputed point of fact.
Last, the majority seems to believe that a lack
of resources might have prevented the District
from responding to Schroeder’s complaints. See
ante at 13 (majority opinion); ante at 20 (con-
currence). This cannot be a serious point. Adding
two words, "sexual orientation," to the memoran-
dum that was circulated could hardly have added
a second to the secretarial time involved, nor
could it have added appreciably to the amount of
toner consumed by the photocopying machine. This
case is nothing like Equality Foundation of
Greater Cincinnati, Inc. v. City of Cincinnati,
128 F.3d 289 (6th Cir. 1997), on which both of my
colleagues rely heavily. Equality Foundation was
a case in which the court upheld the city’s
refusal to include homosexuals in a specially
protected class, whereas here the only thing
Schroeder wants is the same treatment that every-
one else is receiving--that is, the kind of
treatment to which the Constitution entitles him,
according to Romer v. Evans. The glaring absence
of the words "sexual orientation" in the memoran-
dum, coming on the heels of the offensive inci-
dents and Schroeder’s complaint about exactly
that kind of harassment, implies official toler-
ance, if not endorsement, of the behavior in
which the students and others had been engaging.
As I believe the majority acknowledges, the mere
fact that members of some religious groups think
that homosexuality is immoral also in no way
excuses a public school’s tolerance of harassing
conduct based on sexual preference. Some reli-
gions profess beliefs that are incompatible with
the individual guarantees found in the Bill of
Rights, as we have seen to our sorrow in the
recent history of the Taliban group in Afghani-
stan, whose views about the role of women in
society could never be adopted by a public body
here. In this country, nondiscriminatory secular
norms of conduct ordinarily prevail even if they
conflict with particular religious beliefs or
practices. See, e.g., Employment Division v.
Smith, 494 U.S. 872, 878-79 (1990); Prince v.
Massachusetts, 321 U.S. 158 (1944); Reynolds v.
United States, 98 U.S. (8 Otto) 145 (1879).
I do not disagree that each case of harassment
or discrimination must be evaluated on its own
facts. Nor do I quarrel with the proposition that
proper allocation of investigative resources may
require devoting less time and effort to some
complaints than to others. That decision, howev-
er, must be made on a case-by-case basis. System-
atically to put cases involving harassment based
on homosexuality (or any other recognized classi-
fication) below the threshold for any action at
all amounts to the kind of differential unfavor-
able treatment that the Equal Protection Clause
reaches. I had thought that Nabozny v. Podlesny,
92 F.3d 446 (7th Cir. 1996), which the majority
hardly discusses and the concurrence attempts to
distinguish, settled the point that sexual orien-
tation discrimination could not be treated in
such a cavalier fashion.
Schroeder has shown that he suffered harassment
so severe that he experienced a total mental
breakdown; he has shown that a reasonable trier
of fact could find that the school district
officials acted intentionally when they failed to
respond to his complaints; and he has shown that
the trier of fact could also infer that his
unfavorable treatment occurred because of his
homosexuality. This is more than enough, in my
view, to allow him to proceed to trial in his
case against the District. I would Reverse the
district court’s judgment and Remand for that
trial.