Williams, Monet v. Wendler, Walter ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07–3315
M ONET W ILLIAMS, et al.,
Plaintiffs-Appellants,
v.
W ALTER V. W ENDLER, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 05–cv–4157–JPG—J. Phil Gilbert, Judge.
____________
A RGUED F EBRUARY 29, 2008—D ECIDED JUNE 23, 2008
____________
Before P OSNER, R OVNER, and E VANS, Circuit Judges.
P OSNER, Circuit Judge. The plaintiffs in this civil rights
suit under 42 U.S.C. § 1983 are three black female
students at Southern Illinois University, a state uni-
versity, who were suspended by the university, one for
two years and the other two for three years, for hazing
another black female student, who was pledging the
plaintiffs’ sorority, Zeta Phi Beta.
The university defines hazing as “any action required of
or imposed on current or potential members of a group
which produces or is reasonably likely to produce bodily
2 No. 07–3315
harm, humiliation or ridicule, substantial interference
with academic efforts, or significant impairment or en-
dangerment of physical well-being, regardless of the
consent of the participants,” and suspension for up to three
years is authorized as a sanction. “Student Conduct Code,”
www.siu.edu/~policies/policies/conduct.html, visited
May 27, 2008. The sorority itself has an anti-hazing
policy. “Zeta Phi Beta Sorority Incorporated Official
Statement Against Hazing,” www.zphib1920.org/policy/
antihazing.html, visited May 27, 2008.
The plaintiffs beat the pledge repeatedly with paddles
over a four-day period, bruising her buttocks so
severely that it was painful for her to sit, and forced her
to dive knee first barelegged into rice, which was also
painful. She dropped out of the pledge process and com-
plained to university authorities, who instituted the
internal administrative proceeding that resulted in the
suspensions.
The plaintiffs contend that the suspensions violate Title
VI of the Civil Rights Act of 1964, which forbids racial
discrimination by recipients of federal grants, 42 U.S.C.
§ 2000d; Brewer v. Board of Trustees, 479 F.3d 908, 921 (7th
Cir. 2007), and also the equal protection and due pro-
cess clauses of the Fourteenth Amendment. The district
judge granted summary judgment in favor of the defen-
dants (officials of the university sued in their personal
capacity) on the discrimination claims and dismissed
the due process claim under Rule 12(b)(6).
The Title VI and equal protection claims are identical:
they are that the university punished the plaintiffs more
severely than if they had been white. Neither party differ-
entiates between Title VI and equal protection. That is a
mistake, though an inconsequential one in this case. When
No. 07–3315 3
Congress enacts a comprehensive scheme for enforcing a
statutory right that is identical to a right enforceable
under 42 U.S.C. § 1983, which creates a civil remedy
for violations of federal rights (including constitutional
rights) under color of state law, the section 1983 lawsuit
must be litigated in accordance with the scheme. That is
the doctrine of Middlesex County Sewerage Authority v.
National Sea Clammers Ass’n, 453 U.S. 1, 20-21 (1981); see
also Wright v. City of Roanoke Redevelopment & Housing
Authority, 479 U.S. 418, 423-29 (1987); Blessing v. Freestone,
520 U.S. 329, 346-48 (1997); Delgado v. Stegall, 367 F.3d 668,
672-75 (7th Cir. 2004). It is not mentioned by the parties to
this case or by the district court, although the Supreme
Court held in Regents of University of California v. Bakke, 438
U.S. 265, 287 (1978), that “Title VI must be held to proscribe
only those racial classifications that would violate the
Equal Protection Clause or the Fifth Amendment.” (This
part of Justice Powell’s opinion commanded a majority.
See id. at 325 (separate opinion).) So the plaintiffs had
nothing substantive to gain by joining an equal protection
claim to their Title VI claim. And, by virtue of the Sea
Clammers doctrine, had they failed to comply with the
procedures required by Title VI they could not have
recouped by pointing to their equal protection claim. But
no matter; for in any event the evidence of racial discrim-
ination is insufficient to create an issue for trial.
In a typical case of racial discrimination a person of one
race loses out in a competition with someone of another
race, as when a black person is fired and replaced by a
white (or, occasionally, vice versa). In this case, three
blacks hazed another black. The university authorities
were not choosing between black and white in punishing
the hazers, but between black and black, which is like
4 No. 07–3315
choosing between white and white. There can, it is true, be
“racial” discrimination within the same race, broadly
defined, because “race” is a fuzzy term, as we noted in
Abdullahi v. Prada USA Corp., No. 07-2489, 2008 WL 746848,
at *1-2 (7th Cir. Mar. 21, 2008); see Saint Francis College v.
Al-Khazraji, 481 U.S. 604, 609-13 (1987); Holcomb v. Iona
College, 521 F.3d 130, 138-39 (2d Cir. 2008). We were
speaking in Abdullahi of “race” as understood in 1866,
when 42 U.S.C. § 1981 was enacted, and Title VI of course
is much more recent. But “race” remains fuzzy. Moreover,
Title VI, like Title VII, forbids discrimination on the basis
of “color” as well as on the basis of “race.” Light-skinned
blacks sometimes discriminate against dark-skinned
blacks, and vice versa, and either form of discrimination
is literally color discrimination. Walker v. Secretary of
the Treasury, 713 F. Supp. 403, 405-08 (N.D. Ga. 1989),
aff’d without opinion, 953 F.2d 650 (11th Cir. 1992); cf.
Rodriguez v. Gattuso, 795 F. Supp. 860, 865 (N.D. Ill. 1992).
But there is no suggestion of that in this case.
Still, if as the plaintiffs claim the university systemati-
cally treats black hazing more unforgivingly than white
hazing, then, even if the result is to give black pledges
more protection than white ones, the differential treat-
ment would be actionable because it would be discrimina-
tion against black hazers on account of their race; discrim-
inating against a person on the basis of his race is not offset
by discriminating in favor of other persons of the same
race. Cf. United Automobile Workers v. Johnson Controls, Inc.,
499 U.S. 187, 197-200 (1991); Norman-Bloodsaw v. Lawrence
Berkeley Laboratory, 135 F.3d 1260, 1272-73 (9th Cir. 1998);
Larkin v. Michigan Department of Social Services, 89 F.3d
285, 289-91 (6th Cir. 1996). Even if black sororities or
fraternities were found to treat their pledges worse
than white ones do, see Peter Applebome, “Lawsuit
No. 07–3315 5
Shatters Code of Silence Over Hazing at Black Frater-
nities,” New York Times (Dec. 21, 1994), http://
query.nytimes.com/gst/fullpage.html?res=
9801EFDB1038F932A15751C1A962958260, visited June 3,
2008; State v. Brown, 630 N.E.2d 397, 399-400 (Ohio App.
1993), this would not justify a rule that black hazers are
to be punished more severely than white ones. (By “black”
sorority we mean one the membership of which is primar-
ily or even exclusively black. See, e.g., EEOC v. Target Corp.,
460 F.3d 946, 951-52 (7th Cir. 2006); Lloyd v. Alpha Phi Alpha
Fraternity, Nos. 96-CV-348, 97-CV-565, 1999 WL 47153, at
*11 (N.D.N.Y. Jan. 26, 1999); Walter M. Kimbrough, Black
Greek 101: The Culture, Customs, and Challenges of Black
Fraternities (2004). Zeta Phi Beta was said in Boy Scouts of
America v. Till, 136 F. Supp. 2d 1295, 1304 (S.D. Fla. 2001),
to limit its membership to blacks, but “Whites in
Black Sororities and Fraternities,” Ebony (Dec. 1, 2000),
www.encyclopedia.com/doc/1G1-67531419.html, visited
June 2, 2008, states the contrary.) A system of race-neutral
punishments graded by the severity of the offense would
automatically punish the worst violators more heavily
than other violators.
The plaintiffs point to two instances of lenient treatment
of white hazers. In one, a fraternity pledge who had tied
another pledge to a tree received a one-year suspension
later reduced to a year’s probation. In the other and
more serious incident a pledge drowned accidentally
during a fraternity-sponsored camping trip. He had been
drinking. The fraternity was found to have violated the
university’s drinking and safety rules, and was perma-
nently banned from the university. There was no evidence
of hazing on the camping trip, and no members of the
fraternity were punished.
The plaintiffs argue that disciplining blacks more
harshly than whites for offenses of similar gravity is
6 No. 07–3315
evidence of racial discrimination, and that is true, as
many cases hold. E.g., Crawford v. Indiana Harbor Belt
R.R., 461 F.3d 844 (7th Cir. 2006); Rodgers v. U.S. Bank, N.A.,
417 F.3d 845, 853-54 (8th Cir. 2005); Maynard v. Board of
Regents, 342 F.3d 1281, 1289 (11th Cir. 2003). But all the
cases we have found are employment cases. Usually the
employer has a number of employees and a set schedule
of punishments, culminating in dismissal, and often the
types of conduct that violate the employer’s rules fall
into a few well-defined classes of misconduct, such as
absenteeism, harassing or endangering other workers,
disobeying orders, failing to meet minimum performance
standards, drug taking, or stealing. So if in some class of
rule violators blacks are punished on average more se-
verely than whites, especially if the same supervisor
made the disciplinary decisions, that is evidence of
racial discrimination, though the employer may be able to
rebut it by showing that the blacks were punished more
severely for proper reasons. E.g., Flores v. Preferred Technical
Group, 182 F.3d 512, 515-17 (7th Cir. 1999); Bush v. Common-
wealth Edison Co., 990 F.2d 928, 930-32 (7th Cir. 1993);
Silvera v. Orange County School Board, 244 F.3d 1253, 1258-60
(11th Cir. 2001). The problems when hazing or other
activity that endangers fraternity or sorority pledges
gives rise to a claim of racial discrimination are, first,
that the activity takes heterogeneous forms, and, second
(but partly related to the first point), that there is no
uniform schedule of punishments. Is hazing, a form of
deliberate misconduct, less censurable than carelessness
with regard to alcohol and risk management? And is
permanently banning an entire fraternity from campus
forever a milder punishment than suspending three
members of a sorority for two or three years? More in-
dividuals are “punished” in the first case, but less
severely, so the net balance is unclear. (We do assume,
No. 07–3315 7
however, that punishments by sororities and fraternities
could be compared, at least if the misconduct punished
were similar and the two Greek societies were in the
same university.)
That leaves, for possibly meaningful comparison with
the incident in this case, just the pledge tied to a tree.
The victim, though smeared with ketchup and mud
while duct-taped naked to a tree, was not hurt physically,
as the victim of the plaintiffs in the present case was, and
did not complain. The victimizer, moreover, was another
pledge rather than a member of the fraternity, and so
maybe less culpable for his dumb behavior.
Moreover, three cases is an inadequate sample on
which to base an inference of discrimination when the
cases are dissimilar. In a large number of dissimilar cases,
if there were reason to think the dissimilarities were
randomly distributed and therefore canceled out, an
inference of discrimination might be drawn. And likewise
in a small sample if the cases were identical except for a
racial difference. But in a very small sample of dissimilar
cases, the presence of a racial difference does not permit
an inference of discrimination; there are too many other
differences, and in so small a sample no basis for thinking
they cancel out.
The plaintiffs’ due process claim, to which we now turn,
is that the disciplinary procedures employed by the
university in this case, though elaborate, were a sham. It
is unclear what the plaintiffs mean by “sham,” other than
that they should have received a lighter punishment. But
their claim fails regardless of the adequacy of the proce-
dures.
To have a due process claim you must show that you
have been deprived of a property right. The plaintiffs claim
8 No. 07–3315
that they have a property right in a college education,
more specifically in a college education at Southern
Illinois University, since they do not argue that they
cannot enroll elsewhere; in fact one of them has enrolled
elsewhere. A college education—any education—is not
“property” in the usual sense of the word. But the Su-
preme Court has read the word “property” in the due
process clauses of the Fifth and Fourteenth Amendments
to include pretty much any legally protected entitlement,
such as a job that carries with it tenure, e.g., Board of
Regents of State Colleges v. Roth, 408 U.S. 564, 576-78 (1972),
which means that you can be fired only for cause; or a
license that can’t be yanked except for cause, Barry v.
Barchi, 443 U.S. 55, 64 (1979); or, coming closer to this
case, a public high school education. Goss v. Lopez, 419
U.S. 565 (1975); see also Martin v. Shawano-Gresham School
District, 295 F.3d 701, 705-06 (7th Cir. 2002); Shuman ex rel.
Shertzer v. Penn Manor School District, 422 F.3d 141, 149
(3d Cir. 2005).
The plaintiffs’ problem in this case, and the justification
for the district court’s dismissing their due process
claim without awaiting the presentation of evidence, is
that they premise the claim entirely on the bald assertion
that any student who is suspended from college has
suffered a deprivation of constitutional property. That
cannot be right. And not only because it would imply
that a student who flunked out would have a right to a
trial-type hearing on whether his tests and papers were
graded correctly and a student who was not admitted
would have a right to a hearing on why he was not admit-
ted; but also because the Supreme Court requires more. It
requires, as we know, proof of an entitlement, though it
can be a qualified entitlement (most entitlements are),
in this case an entitlement not to be suspended without
No. 07–3315 9
good cause. That is a matter of the contract, express or
implied, see Johnson v. Lincoln Christian College, 501 N.E.2d
1380, 1384 (Ill. App. 1986), between the student and the
college. Galdikas v. Fagan, 342 F.3d 684, 691-92 (7th Cir.
2003), overruled on other grounds by Spiegla v. Hull, 371
F.3d 928, 941-43 (7th Cir. 2004); cf. Deen v. Darosa, 414
F.3d 731, 733-36 (7th Cir. 2005); Indiana Land Co., LLC v.
City of Greenwood, 378 F.3d 705, 708-10 (7th Cir. 2004);
Johnson v. City of Fort Wayne, 91 F.3d 922 (7th Cir. 1996).
That is the difference between college and high school; a
high school student’s rights will usually be defined by
statute. See, e.g., 105 ILCS 5/10-22.6, 5/26-12.
Suppose a student had a contract with the college in
which he promised to pay tuition, in an amount specified
by the college, on the first day of each quarter, and in
exchange the college promised not to suspend him
unless he hazed another student. The contract would
create an entitlement, so that if the college suspended him
for hazing and he denied it he would be entitled to a
hearing. There is no suggestion of such a contract in this
case because the plaintiffs, while calling their claim a
“property” claim, deny that they need to establish an
entitlement—an enforceable right—and not merely an
entitlement to fair procedure, as that would dissolve the
requirement of showing a deprivation of life, liberty, or
property as a precondition to complaining about a denial
of due process. Cleveland Board of Education v. Loudermill,
470 U.S. 532, 541 (1985). They have denied themselves out
of court.
A FFIRMED.
USCA-02-C-0072—6-23-08