Hannemann v. Southern Door County School District

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2529

D EREK H ANNEMANN,

Plaintiff-Appellant,

v.

S OUTHERN D OOR C OUNTY S CHOOL D ISTRICT,

JOE INNIS, L OIS M AHAFFEY, AND S TEVE B OUSLEY,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 09-CV-01055—William C. Griesbach, Judge.

A RGUED JANUARY 20, 2012—D ECIDED M ARCH 15, 2012

Before F LAUM and R OVNER, Circuit Judges, and

C ASTILLO, District Judge.Œ

F LAUM, Circuit Judge. Derek Hannemann filed a § 1983

action against Southern Door County School District,

Œ

The Honorable Ruben Castillo, District Judge for the

United States District Court for the Northern District of Illinois,

sitting by designation.

2 No. 11-2529

Superintendent Joe Innis, Principal Lois Mahaffey, and

Assistant Principal Steve Bousley, seeking damages and

injunctive relief. Hannemann alleged that defendants

violated his rights under the Fourteenth Amendment’s

Due Process Clause based on his suspension and expul-

sion from Southern Door County High School. He

further alleged that defendants violated his procedural

due process rights and his right to intrastate travel by

banning him indefinitely from school property. The

district court granted defendants’ motion for summary

judgment as to all claims.

Hannemann only appeals the portion of the dis-

trict court’s decision related to the ban. Although he

previously argued that the ban violates his liberty

interest as a student, he now argues that the ban violates

his liberty interest as a general member of the public,

conceding that he was no longer a Southern Door

student at the time the ban was imposed. We affirm

the district court’s grant of summary judgment and

hold that Hannemann, as a member of the public, does

not have a protected liberty interest in accessing school

grounds. Defendants thus had no obligation to provide

Hannemann with process in connection with its imposi-

tion of the ban from school grounds.

I. Background

Derek Hannemann was a ninth grade student at South-

ern Door County High School in Southern Door County

School District during the 2005–2006 school year. On

May 1, 2006, a student reported seeing Hannemann with

No. 11-2529 3

a knife on the school bus three days earlier. Assistant

Principal Bousley questioned Hannemann about this

incident, prompting Hannemann to turn over his knife

and to explain that he was afraid of “getting jumped.”

The school district’s weapons policy forbids students

from knowingly or voluntarily possessing a weapon. If

a student brings a weapon to school, school officials

must confiscate the weapon, notify the student’s parents,

and hold an administrative hearing. The policy also

authorizes school officials to suspend the student for

up to fifteen days and to recommend expulsion to

the district administrator. School officials informed

Hannemann’s father, Rick Hannemann, that his son

had brought a knife to school. Bousley met with both of

them to discuss the incident and told them that

Hannemann was suspended.

The Board of Education of the Southern Door County

School District scheduled a hearing to determine

whether grounds existed for expulsion. Superintendent

Innis issued a Notice of Hearing to the Hannemanns on

May 11, 2006, and the hearing was held on May 22, 2006

with the Hannemanns in attendance. The Board of Educa-

tion voted to expel Hannemann for engaging in con-

duct that endangered the property, health, or safety of

others. Although the expulsion order applied until he

turned twenty-one, the order allowed for early reinstate-

ment for the 2006–2007 school year, conditioned upon

“no further incidents of gross misconduct described in

the student handbook.”

Hannemann took advantage of the conditional rein-

statement option and returned to Southern Door County

4 No. 11-2529

High School the following year. No further incidents

occurred until April 27, 2007, when Assistant Principal

Bousley learned that the statement, “Only one bullet left,

no one to kill but myself,” was written on Hannemann’s

backpack. Bousley met with Hannemann and his fa-

ther. After they left the school, Hannemann returned

by himself and accused Bousley of taking his notebooks.

Then-Principal Mahaffey brought Hannemann into her

office to determine what the problem was. He was

visibly upset, clenching his fists and breathing heavily.

Based on his behavior, he received a discipline referral

for violating the school district’s policy against intimida-

tion and harassment.

On May 1, 2007, another incident occurred. A teacher

brought Hannemann to the principal’s office for

grabbing another student by the collar in class and

saying, “I am going to kick your ass. Stop writing in my

locker.” The next day, Assistant Principal Bousley and

Principal Mahaffey met with Hannemann and his fa-

ther. Bousley informed them that the expulsion order

was under review and that they would have an opportu-

nity to be heard on this issue. On May 4, Innis, Bousley,

Mahaffey, Hannemann, his parents, and his attorney

met to discuss the situation and possible expulsion. A

few days later, Hannemann’s attorney mailed Innis

letters from Hannemann and his parents to demonstrate

their commitment to a joint solution.

On May 7, 2007, Hannemann was suspended for these

recent incidents as well as for a separate incident in which

Hannemann punched a student. That evening, the Board

No. 11-2529 5

of Education discussed Hannemann’s recent behavior

in a closed meeting. Although the Board of Education

agreed that the administrators’ decision to revoke

his conditional reinstatement and to expel him was ap-

propriate, they did not vote on this matter because

the decision rested solely with the administrators. A

letter dated May 11, 2007 informed the Hannemanns

that the school district had decided to enforce the perma-

nent expulsion due to Hannemann’s violation of the

condition in the original expulsion order.

Hannemann’s attorney requested a hearing to contest

the revocation of the reinstatement. Superintendent Innis

and other administrators met with the Hannemanns on

May 17, but on June 5 the Hannemanns received written

notification that the permanent expulsion would remain

in effect. Hannemann enrolled in Fox Valley Lutheran

High School for the 2007–2008 school year, but he con-

tinued to appeal the expulsion decision.

In September 2007, Hannemann appealed his original

expulsion to the superintendent of the Wisconsin Depart-

ment of Public Instruction. On November 5, the state

superintendent reversed Hannemann’s expulsion on the

ground that the May 11, 2006 notice of expulsion was

defective because it did not identify the time frame of

the alleged conduct.

Despite the reversal of his expulsion, Hannemann

decided not to return to Southern Door County High

School, in part because he had become accustomed to

his private school and in part because the school district

had indicated that it would appeal the state superin-

6 No. 11-2529

tendent’s decision if Hannemann decided to return.

Though enrolled at Fox Valley Lutheran High School,

Derek continued to use Southern Door County High

School’s weight room and to drive onto school grounds

to pick up friends. On May 28, 2008, a teacher saw

Hannemann in the weight room and told him to leave.

Hannemann became agitated and confrontational,

used inappropriate language, and punched a locker.

School officials relied on the teacher’s account of the

incident and informed Hannemann by mail that he was

“no longer to enter upon the property of the Southern

Door County School district for any purpose effective

immediately.” The letter explained that any entry would

be considered a trespass. The Hannemanns were not

provided with notice or opportunity to be heard con-

cerning this ban. Hannemann’s attorney sent a letter to

the school district’s attorney inquiring into the school

district’s authority to impose such a ban, but he received

no response. The Hannemanns did not follow up by

requesting a hearing or by inquiring how the ban could

be lifted. On June 4, 2008, Derek drove onto school prop-

erty to pick up a friend. A police officer pulled him

over and issued a citation for trespassing.

Hannemann filed a complaint on November 10, 2009,

raising claims related to bullying, his suspension, his

expulsion, and his ban from school property. He chal-

lenged the ban on First Amendment, equal protection,

and due process grounds. On November 1, 2010,

Hannemann filed an amended complaint, adding due

process claims for the suspension and expulsion and

removing the bullying claim. He alleged that: (1) the

No. 11-2529 7

May 3, 2007 1 five-day suspension deprived him of lib-

erty or property without procedural due process; (2) the

expulsion order deprived him of liberty or property

without procedural due process; (3) the ban on en-

tering school property without notice or a hearing de-

prived him, as a student, of procedural due process;

and (4) the ban on entering school property violated

his right to intrastate travel. Hannemann sued Southern

Door County School District, as well as Superin-

tendent Innis, former Principal Mahaffey, and Assistant

Principal Bousley in their individual capacities.

The district court granted defendants’ motion for sum-

mary judgment, concluding that Hannemann was not

denied procedural due process with respect to his sus-

pension, his expulsion, or the revocation of his con-

ditional reinstatement. Regarding the ban, the district

court rejected Hannemann’s argument that he had

student status when he was banned from the premises.

1

The district court referred to this alternatively as the May 2006

suspension and the May 2007 suspension. According to the

facts alleged in Hannemann’s amended complaint, he was

suspended both on May 1, 2006 for fifteen days (following

the knife possession) and on May 3, 2007 for five days (fol-

lowing a series of altercations). It appears that Hannemann

alleged a violation only relating to the 2007 suspension but

that the district court considered whether due process was

provided in conjunction with the 2006 suspension. We need

not resolve this issue, however, because Hannemann only

appeals the district court’s decision about his ban from

school grounds.

8 No. 11-2529

The court held that a school is permitted to indefinitely

ban a non-student from its property because members

of the public have no constitutional right to access

public schools. The court also held that the right to intra-

state travel is not unlimited and does not provide a

right to access school property. Finally, the court held

that the individual defendants are entitled to qualified

immunity as an alternative basis for granting summary

judgment as to them because even if the court erred

by failing to find a constitutional violation, the law was

not clearly established.

On appeal, Hannemann only contests the district

court’s grant of summary judgment for his procedural

due process claim for equitable relief from the ban

from school property.

II. Discussion

We review de novo a district court’s grant of summary

judgment. Smeigh v. Johns Manville, Inc., 643 F.3d 554, 560

(7th Cir. 2011). Summary judgment is appropriate if “the

movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as

a matter of law.” FED. R. C IV. P. 56(a). However, “[t]he

mere existence of some alleged factual dispute between

the parties will not defeat an otherwise properly sup-

ported motion for summary judgment.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The

non-movant must go beyond the pleadings and “set forth

specific facts showing that there is a genuine issue for

trial.” Id. at 250. We construe all facts and draw all rea-

No. 11-2529 9

sonable inferences in the light most favorable to the

non-moving party, which in this case is Hannemann.

Smeigh, 643 F.3d at 560. Nevertheless, “we are not

required to draw every conceivable inference from the

record. We need draw only reasonable ones.” Tyler v.

Runyon, 70 F.3d 458, 467 (7th Cir. 1995).

A. Whether the Ban from School Grounds Violates a

Liberty Interest Protected by the Due Process Clause

Hannemann contends that the school district violated

his right to procedural due process by banning him

from school property without notice and an opportunity

to be heard. Before the district court, Hannemann

argued that his status as a student entitled him to this

process. The district court rejected this argument,

finding it to be “undisputed that Derek was not a

student at Southern Door County High School when

the ban was instituted” because expulsion transforms

a person’s status from student to general member of the

public. Although the expulsion order had been vacated,

Hannemann had opted not to reenroll. Thus, when

the ban was enacted, Hannemann was not a student of

Southern Door County High School, but rather of Fox

Valley Lutheran High School. The district court framed

the issue as whether a school district can constitu-

tionally ban a non-student from its property until

further notice without a hearing, and the court ruled

that the school district has this authority.

On appeal, Hannemann abandons his student-status

argument and instead argues that he was deprived of a

10 No. 11-2529

protected interest as a general member of the public.

Hannemann is not consistent or precise in alleging

what protected interest has been violated by the ban.

He argues that a school in a small community serves

as more than a place of learning,2 that a ban from school

grounds is especially burdensome to parents, that other

members of the community enter school property, and

that a ban that labels a person as a danger to children

imposes a grievous loss.

When a plaintiff asserts a procedural due process

claim, we engage in a two-fold analysis. First, we must

determine whether the plaintiff was deprived of a pro-

tected interest, either in liberty or property. McMahon v.

Kindlarski, 512 F.3d 983, 987 (7th Cir. 2008). Second, if

the plaintiff has established a protected interest, we

must determine what type of process is due. Id. at

987-88. “Protected liberty interests ‘may arise from two

sources—the Due Process Clause itself and the laws of the

States.’ ” Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460

2

Hannemann alleges that, due to the small size of the commu-

nity, Southern Door County schools serve not simply as educa-

tional institutions but also as the center of civic life. Hannemann

does not provide any legal or factual support for this asser-

tion, and he conceded at oral argument that there is no evi-

dence in the record of specific civic events that take place on

the school grounds. To the extent that Hannemann claims

that his right to access school grounds stems from the com-

munity’s small size, we find this claim to be unsupported

and therefore waived. See Long v. Teachers’ Retirement Sys. of

Ill., 585 F.3d 344, 349 (7th Cir. 2009).

No. 11-2529 11

(1989) (quoting Hewitt v. Helms, 459 U.S. 460, 466 (1983)).

As the Supreme Court has stated, “the range of interests

protected by procedural due process is not infinite.” Bd.

of Regents of State Colleges v. Roth, 408 U.S. 564, 569-

70 (1972).

Before we can evaluate whether Hannemann has estab-

lished a protected interest, we must decide whether to

construe the duration of the ban as definite (as the

school district argues), indefinite (as the district court

determined), or lifelong (as Hannemann argues). The

duration of the ban influences the severity of the

school district’s action and thus may influence our anal-

ysis as to whether the ban violates a protected interest.

It is undisputed that the letter from the school district’s

attorney informing Hannemann of the ban does not

state when the ban will be lifted. When asked at a dep-

osition whether Hannemann would be permitted to

attend events that are open to the public after he turns

twenty-one, Superintendent Innis testified, “we certainly

would be open to revisiting it if a request was made,

you know, to attend activities or, you know, be on the

campus.”

The district court concluded that there was no

evidence that the district intended for the ban to be life-

long and that such an interpretation would not be rea-

sonable. We agree with the district court’s analysis, and

we construe the ban as indefinite but not necessarily

permanent. Although Hannemann claims that the ban

is lifelong, he never asked school officials how long the

ban would last for or whether there was anything he

12 No. 11-2529

could do to have it lifted. Similarly, Hannemann never

asked school officials to lift the ban and never promised

to refrain from the conduct that prompted the ban.

Further, Innis’s testimony suggests that school officials

are open to reconsideration. Yet we must reject defen-

dants’ assertion that the ban was neither indefinite nor

unconditional, as defendants have not pointed to any

evidence of an end date for the ban or conditions

for Hannemann to meet for the ban to be lifted. We there-

fore conclude, as the district court did, that the ban

from school property was indefinite but not permanent.3

1. Hannemann’s Ban from School Grounds Did Not

Deprive Him of a Protected Liberty Interest

Under the “Stigma Plus” Framework

Hannemann first claims that his ban from school

grounds deprived him of a protected liberty interest. A

plaintiff may prove a deprivation of a protected liberty

interest by showing damage to his “good name, reputation,

honor, or integrity.” Wisconsin v. Constantineau, 400 U.S.

433, 437 (1971). This “stigmatic harm,” however, “must

take concrete forms and extend beyond mere reputational

interests.” Omosegbon v. Wells, 335 F.3d 668, 675 (7th Cir.

2003) (citing Paul v. Davis, 424 U.S. 693, 711-12 (1976)); see

3

If school officials refuse to consider a request to lift the ban

and instead treat the ban as permanent, this conduct may

implicate Hannemann’s constitutionally protected rights;

however, the evidence presently before us does not implicate

those concerns.

No. 11-2529 13

also McMahon, 512 F.3d at 988. This two-pronged frame-

work is known as the “stigma plus” test. See Khan v.

Bland, 630 F.3d 519, 534 (7th Cir. 2010). The Supreme

Court, in Paul v. Davis, made clear that procedural safe-

guards come into play only when the “alteration of

legal status,” such as the governmental deprivation of a

securely held right, is “combined with the injury

resulting from the defamation.” 424 U.S. at 708-09. This

occurs when defamatory statements alter or eliminate

“a right or status previously recognized by state law.” Id.

at 711.

Hannemann urges us to evaluate his procedural due

process claim using the approach that we have

taken in employment cases involving protected liberty

interests. This framework requires the plaintiff to show

that he “was stigmatized by the employer’s actions,” that

the “stigmatizing information was publicly disclosed,”

and that “he suffered a tangible loss of other employ-

ment opportunities as a result of the public disclosure.”

Dupuy v. Samuels, 397 F.3d 493, 509-10 (7th Cir. 2005); see

also McMahon, 512 F.3d at 988. We have recognized this

approach as “helpful” in certain non-employment cases.

See Dupuy, 397 F.3d at 509-10.

Before considering the merits of Hannemann’s liberty

interest claim, we must address defendants’ claim that

Hannemann has waived his “stigma plus” argument by

failing to raise it before the district court. Hannemann

admits that he did not make this argument to the

district court but explains that he responded only to the

arguments raised by defendants in their motion for sum-

14 No. 11-2529

mary judgment. Hannemann’s explanation is neither

factually nor legally accurate.

Defendants argued in their motion for summary judg-

ment that the ban did not violate Hannemann’s pro-

cedural due process rights and that Hannemann failed

to point to a state law or rule that entitled him to access

school grounds. This argument called upon Hannemann

to explain why, contrary to defendants’ assertion, the

ban did violate his procedural due process rights. Yet

Hannemann did not argue to the district court, as he

does on appeal, that his protected interest stems from

harm to his reputation combined with an alteration of

legal status (i.e., the “stigma plus” test). Hannemann

exclusively argued that he had a constitutional right

stemming from his student status and insisted that he

was not a “mere member of the public.”

“It is a well-settled rule that a party opposing a sum-

mary judgment motion must inform the trial judge of

the reasons, legal or factual, why summary judgment

should not be entered. If it does not do so, and loses the

motion, it cannot raise such reasons on appeal.” Liberles

v. Cnty. of Cook, 709 F.2d 1122, 1126 (7th Cir. 1983); see

also Domka v. Portage Cnty., 523 F.3d 776, 783 (7th Cir.

2008). Although Hannemann contends that he raised

the stigma plus argument sufficiently to preserve it for

appeal, a party “waive[s] the ability to make a specific

argument for the first time on appeal when the party

failed to present that specific argument to the district

court, even though the issue may have been before the

district court in more general terms.” Fednav Int’l Ltd. v.

No. 11-2529 15

Cont’l Ins. Co., 624 F.3d 834, 841 (7th Cir. 2010). Even

giving a generous reading to Hannemann’s arguments

before the district court, we are unable to detect any

argument based on a liberty interest in Hannemann’s

reputation or any liberty interest for general members

of the public. We therefore conclude that Hannemann

has waived his stigma plus argument because he raises

it on appeal for the first time.

Even if we declined to find this argument waived, the

argument would fail on its merits. Hannemann has not

identified any statements made by the school district

that would constitute defamatory statements if false. See

Brown v. City of Michigan City, 462 F.3d 720, 730 (7th Cir.

2006). Although he claims that the school district has

“affixe[d] a badge of infamy” to him, he does not allege

that the school district publicized the ban 4 or that he has

been harassed due to publication of the ban. See id.;

Omosegbon, 335 F.3d at 675. Thus, Hannemann has not

satisfied the “stigma” prong.

Hannemann has not satisfied the “plus” prong either

because he has not established that any defamatory

4

Hannemann alleged in his amended complaint that a flyer

was distributed to Southern Door County school personnel,

referencing the May 2008 “confrontation” in the weight

room and instructing personnel to contact the administration

or the police if Hannemann was spotted on school property.

Hannemann has never pointed to any defamatory statements

in the flyer or argued that its distribution had the effect of

depriving him of his liberty interest in his reputation.

Hannemann, in fact, makes no mention of the flyer on appeal.

16 No. 11-2529

statements have caused an alteration in his legal status.

See Paul, 424 U.S. at 711; Brown, 462 F.3d at 730-32. We

have previously found this prong to be satisfied when

an employee’s reputation or integrity was called into

question in a manner that made it almost impossible

for the employee to find a new position in that field.

See Townsend v. Vallas, 256 F.3d 661, 669-70 (7th Cir. 2001).

The Supreme Court has also recognized a change in

legal status when a student was deprived of the right to

attend public school. See Paul, 424 U.S. at 710 (discussing

Goss v. Lopez, 419 U.S. 565 (1975)). Hannemann has not

established that any stigma resulting from the ban has

caused him to lose a right previously recognized by

state law.5 As the district court acknowledged, Southern

Door County School District allows the public to enter

school property for specific purposes while retaining the

authority to bar individual members of the public for

reasons specific to them. Hannemann does not contest

5

Hannemann makes two statements that could possibly give

rise to cognizable interests, but he fails to adequately support

these statements. He contends that Southern Door County

High School is a polling place, but he never establishes (or

even asserts) that the high school is his polling place, that

absentee voting is unavailable, or that school officials intend

to enforce the ban during an election. Hannemann also

contends that the ban prevents a parent from attending parent-

teacher conferences, concerts and sporting events, and even

graduation—but Hannemann is not presently and may never

become a parent of a Southern Door student. Thus, though

voting and parental interests may be stronger, Hannemann

has not established that he has been deprived of these interests.

No. 11-2529 17

this finding, and he even urges us to grant summary

judgment in his favor on the ground that there are no

material facts in dispute. Because the school district

retains the discretion to bar members of the public

from school property, Hannemann is unable to estab-

lish the loss of a previously recognized right.

Case law also supports our holding that members of

the public do not have a constitutional right to access

school property. In Vukadinovich v. Board of School Trustees

of Michigan City Area Schools, a principal banned a former

teacher from a public school who had continued to

enter school grounds after being terminated. 978 F.2d

403, 407 (7th Cir. 1992). We determined that Vukadinovich

became a member of the public once discharged, and

we stated that “[m]embers of the public have no con-

stitutional right of access to public schools.” Id. at 409.

Hannemann seeks to distinguish Vukadinovich as only

involving rights under the First Amendment, which

Hannemann no longer alleges. Even though we did not

analyze due process rights in Vukadinovich (due to defen-

dants’ concession that Vukadinovich had a protected

property interest in his employment), we recognized, as

the baseline for our analysis, that the public has no con-

stitutional right to access schools. The First Amendment

framework then required Vukadinovich to allege that a

governmental body or authority had transformed the

school into a public form, which he failed to do. The same

baseline determination—that the public has no constitu-

tional right to access schools—applies to Hannemann’s

claim. The “stigma plus” due process framework requires

Hannemann to establish that defamatory statements

18 No. 11-2529

caused him to lose a right recognized by state law, which

he has failed to do. Hannemann has at most alleged a

right to access school grounds stemming from a Southern

Door County School District policy, but this does not

suffice. See Paul, 424 U.S. at 711.

Cases from other circuits have similarly held that

members of the public do not possess a constitutionally

protected right to access school grounds. See, e.g., Lovern

v. Edwards, 190 F.3d 648, 655-56 (4th Cir. 1999) (affirming

the dismissal of a parent’s claim regarding his ban

from school property and stating that “[s]chool officials

have the authority to control students and school person-

nel on school property, and also have the authority and

responsibility for assuring that parents and third parties

conduct themselves appropriately while on school prop-

erty”); Henley v. Octorara Area Sch. Dist., 701 F. Supp. 545,

551 (E.D. Pa. 1988) (“The right to come onto the school

property was not such a right as to require any sort of a

due process hearing before making the classification

that excluded [the non-student].”).6 Hannemann points

to Dunkel v. Elkins, 325 F. Supp. 1235, 1245 (D. Md. 1971),

6

Hannemann urges us to distinguish these cases as concerning

the broader right to access all school buildings at all times,

but we decline to do so. The holdings in these cases are not

limited to claims of unbounded access to schools. Moreover,

Hannemann does not clearly allege a narrower claim. The

conduct that prompted the ban was his presence in the

school’s weight room, and his briefing seeks access to school

property for wide-ranging purposes, including sporting

events, voting, concerts, and parent-teacher conferences.

No. 11-2529 19

a case in which the court held that a public university

could not deprive a person of access to the campus

without a prior administrative hearing. We do not find

Dunkel’s reasoning to be persuasive as to Hannemann’s

claim. The district court in Dunkel did not provide

much support for the origin of the right to process and

appeared to rely primarily on the ease with which the

university could have provided a hearing. Moreover,

safety and administrative concerns are heightened in

the context of grade schools, and there is no indication

that Dunkel would have extended its right of access

from universities to grade schools.

2. Hannemann’s Ban from School Grounds Did Not

Interfere with His Right to Intrastate Travel

Liberty interests may arise from the Due Process

Clause itself, see Thompson, 490 U.S. at 460. Hannemann

appears to claim that he has a liberty interest in

engaging in intrastate travel and that the ban from

school grounds violated this interest. The district court

rejected this argument, concluding that “[t]he right to

intrastate travel does not allow one to travel any-

where and everywhere within Wisconsin at his or her

pleasure.” We agree with the district court’s well-rea-

soned analysis, and we hold that Hannemann’s ban

from school property does not violate his right to

intrastate travel.

The Wisconsin Supreme Court has recognized the

right to travel as “fundamental among the liberties pre-

served by the Wisconsin Constitution.” Brandmiller v.

20 No. 11-2529

Arreola, 544 N.W.2d 894, 899 (Wis. 1996). We have not

yet decided whether there is a federal fundamental right

to intrastate travel, see Schor v. City of Chicago, 576 F.3d

775, 780 (7th Cir. 2009), but there is no need to resolve

this question today because Hannemann has not estab-

lished that the ban actually violates his right to

intrastate travel. Hannemann has not alleged that the

ban inhibits his ability to move from place to place

within Door County. He has not alleged that the only

way to get from one location to another is to traverse

school property, nor has he alleged that the ban

prevents him from accessing substantial portions of the

county. The absence of such allegations signals that

Hannemann’s claim is not properly characterized as an

infringement of his right to intrastate travel. He con-

tends that the ban prevents him from entering school

grounds for various activities, but he never contends

that the ban inhibits his right to travel through parts of

the county to participate in such activities. See Doe v.

City of Lafayette, 377 F.3d 757, 771-72 (7th Cir. 2004)

(en banc) (holding that the city’s ban of a sex offender

from city parks did not violate his right to intrastate

travel since ban did not limit him “in moving from place

to place within his locality to socialize with friends

and family, to participate in gainful employment or to

go to the market to buy food and clothing”).

Hannemann relies on Johnson v. City of Cincinnati, 310

F.3d 484, 495 (6th Cir. 2002), in which the Sixth Circuit

concluded that expansive “drug exclusion zones” inter-

fered with plaintiff’s “right to travel locally through

public spaces and roadways.” We have previously ques-

No. 11-2529 21

tioned Johnson’s recognition of the right to intrastate

travel as fundamental, see Lafayette, 377 F.3d at 771 & n.12,

but we need not revisit that issue here because

Hannemann has not sufficiently established that the

ban limits his right to travel locally.

Even if we construe Hannemann’s intrastate travel

claim as arguing that he has the right to enter public

facilities and remain there, his claim fares no better. The

right to intrastate travel protects the right to move from

place to place, not the right to access certain public

places. See Williams v. Town of Greenburgh, 535 F.3d 71, 75-

76 (2d Cir. 2008) (“[I]t is clear that the right [to intra-

state travel] protects movement between places and has

no bearing on access to a particular place.”). As the

Second Circuit has recognized, “it would distort the

right to free travel beyond recognition to construe it as

providing a substantive right to cross a particular parcel

of land, enter a chosen dwelling, or gain admittance to a

specific government building.” Id. at 76. Just as the right

to intrastate travel does not confer the right to access

to community centers and government office buildings,

see id., it also does not confer the right to access school

property.

Although we acknowledge that a three-Justice plurality

of the Supreme Court has expressed that “the freedom

to loiter for innocent purposes is part of the ‘liberty’

protected by the Due Process Clause of the Fourteenth

Amendment,” City of Chicago v. Morales, 527 U.S. 41, 53-54

(1999), we do not perceive this dicta as compelling our

recognition of a liberty interest in unfettered access to

22 No. 11-2529

school grounds. See United States v. Lock, 466 F.3d 594

(7th Cir. 2006) (referring to the Morales statement as a

“controversial proposition”). But see Kennedy v. City of

Cincinnati, 595 F.3d 327, 330 (6th Cir. 2010) (relying on

Morales and recognizing a “constitutionally-protected

liberty interest not to be banned from all City recrea-

tional property without procedural due process”). The

Morales statement is situated not in the context of a

due process analysis but rather in the context of an

overbreadth analysis. Further, the only cases cited by the

plurality involve the freedom of movement, not the

freedom to loiter. Moreover, even if we recognized some

liberty interest in the right to loiter, it would not follow

that this right confers unfettered access to all public

places. In Doe v. City of Lafayette, we rejected the notion

that Morales signifies the Supreme Court’s mandate that

a right to loiter in all public places is a fundamental

liberty interest. 377 F.3d at 772. We determined that

the Morales statement “hardly includes all the contexts

of ‘public’ places—for example, parks, public schools,

jails, libraries, governmental administration buildings.” Id.

We are not prepared to recognize a right for members

of the public to loiter on school grounds based on the

broad language in Morales. Our reluctance to construe

Morales so broadly stems in part from the Supreme

Court’s own statements about the authority and the

responsibility of school officials to protect students and

control people on school property. See, e.g., New Jersey v.

T.L.O., 469 U.S. 325, 339 (1985) (recognizing the “substan-

tial interest of teachers and administrators in main-

taining discipline in the classroom and on school

No. 11-2529 23

grounds”); Carey v. Brown, 447 U.S. 455, 470-71 (1980)

(stating that the Constitution does not leave state

officials powerless “to protect the public from boisterous

and threatening conduct that disturbs the tranquility of . . .

schools” (quoting Gregory v. Chicago, 394 U.S. 111,

118 (1969) (Black, J., concurring))); see also Vernonia Sch.

Dist. 47J v. Acton, 515 U.S. 646, 656 (1995) (“Fourth Amend-

ment rights, no less than First and Fourteenth Amend-

ment rights, are different in public schools than else-

where . . . .”); Lovern, 190 F.3d at 655-56. We therefore

hold that Hannemann has not established that the ban

deprived him of a protected liberty interest, whether

stemming from the “stigma plus” framework or the

right to intrastate travel.

B. Qualified Immunity

The district court concluded that qualified immunity

provided an alternative basis for granting summary

judgment to individual defendants Innis, Mahaffey,

and Bousley. Hannemann does not challenge this conclu-

sion as to damages, but he contends that qualified immu-

nity does not bar declaratory and injunctive relief. He

seeks the opportunity to be heard if the school continues

to ban him from school property. Hannemann is correct;

the defense of qualified immunity does not protect de-

fendants from an action for injunctive relief. See Moss v.

Martin, 614 F.3d 707, 712 (7th Cir. 2010); Denius v. Dunlap,

330 F.3d 919 (7th Cir. 2003). But even though qualified

immunity does not provide a complete defense to in-

dividual liability, see Canedy v. Boardman, 91 F.3d 30, 33

24 No. 11-2529

(7th Cir. 1996), defendants all prevail on the merits

of this action. Hannemann has failed to establish that

defendants’ imposition of an indefinite ban from school

grounds deprived him of any constitutionally protected

interests.

III. Conclusion

For the foregoing reasons, we A FFIRM the judgment of

the district court.

3-15-12