Schroeder, Tommy R. v. Hamilton School Dist

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.