# Petition for Writ of Certiorari — Schroeder v. Hamilton School District

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 974

## Text

Supreme Court, U.S.
FILED

U

02 254 AuG 15 2002

TOMMY R. SCHROEDER,

Petitioner,

HAMILTON SCHOOL DISTRICT, GARY AMOROSO,
DEAN SCHULTZ, RICHARD LADD, KATHLEEN COOKE,
KEITH HICKLIN, and PATTY POLCZINSKI,

Respondents.

ON PETITION FOR A Writ OF CERTIORARI TO THE
Unrrep States Court OF APPEALS FOR THE SEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Foster Marshall, Jr. Brenda Lewison

Law Office of Foster Marshall Counsel of Record

70 W. Madison, Suite 1515 Law Office of Brenda Lewison
Chicago, IL 60602 . 135 W. Wells St., Suite 340
(312) 236-3150 Milwaukee, WI 53203

(414) 287-1171
Attorneys for Petitioner

Curry & TAYLOR @ (202) 393-4141 HTTPLV/USSCINFS.cOM

fal

i
QUESTIONS PRESENTED

i May a public entity constitutionally rank
groups by size and give more, rather than equal, protection to
members of bigger groups? |

2. May a plaintiff who brings an action alleging
unconstitutional employment discrimination under the
Fourteenth Amendment’s equal protection clause use the
same proofs and legal analysis as are used in cases brought
under Title VII of the Civil Rights Act of 1964, as amended?

3. Does the Seventh Circuit’s decision run-afoul
of this Court’s decision in Romer v. Evans, 517 U.S. 620
(1996) when the decision allows “saving money” as a rational
basis for denying equal protection?

4. May a court decide constitutional issues based
on sociological speculation, rather than facts?

ii

TABLE OF CONTENTS

CE FI isaisinssssn seca sciciiahliclsdaihantaciinaiiicaieiinn i
SE Oe Casas sinissisnarivscntecnenahpcitteh aniniliacaaanlontinans ii
SRP I siscaicsincevsistiemenspiabancavetnaianininsntitapasiaiainten iii
CRUG IO siicissseesesiiseiiatettecieinekiteasinbiealabbiabionspeaibhanatititaiian 1
OG siiccsiiscstisseisicstbiasssahaaceiaa teas taneeapailas bed oaiaad asian 1
STATUTORY PROVISIONS INVOLVED ..........ssssessssesessesesseecesescseeeeesees 2
SEATENGRIT OF THE CAI sciisivsicciscnsracsestscasitinsaawnpciuiinninusniansiniasies 3
REASONS FOR GRANTING THE WRIT ..........s:ssesessssesesssseeseseeeceeseeees 6
COON ccesisisiocnsnissbssnaiiinaiid aia mica taiaaasicia a acces 13
APPENDIX

CIRCUIT COURT DECISION (8/1 1/02)...........c:ccccsssesesseseeseseeeses la

DISTRICT COURT DECISION (3/16/01) ...........cscccsssseeseeseseees 27a

ORDER DENYING REHEARING (5/17/02)........cccsscsseseseseseees 49a

iii

TABLE OF AUTHORITIES
CASES

Annis v. County of Westchester, 36 F.3d 251 (2d Cir.

RU a A one Rae Tee ee ee ee 9
Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90

a TE dicihduntinsdnkelisrissnsconisnainissngiaanebanemneannievernvinvesennens 8
Beardsley v. Webb, 30 F.3d 524 (4th Cir. 1994)... 9, 10
Briggs v. Anderson, 796 F.2d 1009, 1021 (8th Cir. 1986)........... 7
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742

aici asec na ainaa ea cicidebdnnorewtooniionents 6, 9
Davis v. Monroe Board of Ed., 526 U.S. 629, 119 S.Ct.

ROA, BGT L, BGS La Bee Cae (LOO) cervcccsevesccovvvsccesccsonnesconcnsooess 8
Faragher v. City of Boca Raton, 524 U.S. 775 (1998) ............ 6,9

Gebser v. Lago Vista Independent School Dist., 524
U.S. 274, 290-91, 118 S.Ct. 1989, 1999-2000, 141

ar rahamltbiainluenevensioneniin 8
Harris v. Shelby County Board of Ed., 99 F.3d 1078

sais aanhhidaabinapbeminennenenamneieonenes 6
Hervey v. City of Little Rock, 787 F.2d 1223, 1231 (8th

a ns tuaianeriniinnpbenneseanenenenneseninnts 7
Johnson v. City of Ft. Lauderdale, 148 F.3d 1228 (11th

IN sch ccctaiacclikn cicbnchddc biked ads pissed nkjiniernbtiniennalnicsnnsankieinveswiventi 8
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93

S.Ct. 1817, 36 L.E.d.2d 668 (1973)..........ccsscccsssscssssessscosees 7, 8,9
Molthan v. Temple University, 778 F.2d 955, 961 (3d

A 0 2 sea icnciemhanvndanecsinevenbensntansotenscoine 7
Oncale v. Sundowner Offshore Services, Inc., 523 U.S.

NESTE Tar eae eee Te OC OE 6, 9
Quinn v. Nassau County Police Department, 53 F.

Supp. 2d 347, 354 (E.D.N.Y. 1999) ...........ccccscsrsssssssseceserenes 9

Romer v. Evans, 517 U.S. 620, 634-35, 116 S.Ct. 1620,
BOR Repel SI CRU) noncvncesnsnereesensinevcccassocensnovesnesnensnosseenes 10, 11

iv
Saenz v. Roe, 526 U.S. 489, 504, 119 S.Ct. 1518, 143

aS IG INTE vcicsicienioseieteihaiiniapebheiainninleliniiteiciedaninin 11
Trautvetter v. Quick, 916 F.2d 1140, 1149 (7th Cir.

Sea vices ieesiaicsciienreiahaaahbciteietaeliaasesdibiatuaccessieaniiak 7
United Air Lines, Inc: v. Civil Aeronautics Bd., 766

ee Re PURE SNe ED ianccnrsicanierssniabiinnititaiiiabinididailaseainesaniiiais 11
Wallace v. Texas Tech. Univ., 80 F.3d 1042 (5th Cir.

TTD sisessictiinictiniiesinicitiaieitetababaiamstenlinahdlanenisedidiesutibiisiic 7
Wayte v. United States, 470 U.S. 598 (1985)...........c:cccsssssssees 11
Weberg v. Franks, 229 F.3d 514 (6th Cir. 2000) ............ssssessesses 6

STATUTES
Se ar nE Tec IID: sic taboisds cance baaascildntepteiaeaetishaishciemanniaidaditaiasiaiacail 8
Se A ITT dacibiolicpusnienneniicaptoinisiinicabiethiinimeabiihiiniintibdansiniibiiaiaicieliaecs 2
| NO aE NER Tm mT TEN OIE 1
ie I icesisivninsonsinierinceaiincasiniceealabestameiasednen. atl
Se a a viiettacinsibsidhncckceainecestacccmnasbaalidadgeasandenecs l
oe A I et uici petites enietinesineticaananaecibeliaaiiaagih sienineieniata 2, 3, 6
Es SILAS sottsnnitestinninstaesesincssiitataesnsinmantiiiilaceidadiiged 6
RULES

SND CONE TON BIRT ssicticbiedentitichicsssceriiithiscsariuianibceaiaticeiiaad’ 2

1
PETITION FOR WRIT OF CERTIORARI

Petitioner Tommy R. Schroeder respectfully prays
that this Court grant a writ of certiorari to review the
judgment and opinion of the United States Court of Appeals
for the Seventh Circuit entered on March 11, 2002.

OPINIONS BELOW

The March 16, 2001, decision of the district court,
which is not officially reported, is set out at pp. 27a-48a of the
Appendix. The district court granted summary judgment to
the defendants and denied plaintiffs motion for summary
judgment as moot.

The March 11, 2002, decision of the court of appeals,
which is reported at 282 F.3d 946 (7th Cir. 2002), is set out at
pp. la-26a of the Appendix to this petition. Contained in that
decision are the majority opinion (Manion) at pp. la-16a, a
concurring opinion (Posner) at pp. 16a-20a, and a dissent
(Wood) at pp. 2la-26a. The majority affirmed the district
court’s grant of summary judgment to the defendants.

A petition for rehearing or rehearing en banc was
denied May 17, 2002 and is set out at p. 49a of the Appendix.

JURISDICTION

The district court had jurisdiction of this action
pursuant to 28 U.S.C. §1331. The magistrate judge acting
under consent given pursuant to 28 U.S.C. §636(c)(1) denied
summary judgment to petitioner and granted summary
judgmert in favor of respondents. Final judgment was
entered under Fed. R. Civ. P. 54(b).

An appeal was taken to the Seventh Circuit Court of
Appeals pursuant to 28 U.S.C. §1291. The judgment of the
court of appeals was entered March 11, 2002. Petitioner filed
a petition for rehearing by the panel or, alternatively, for
rehearing en banc. The court of appeals denied the petition
May 17, 2002.

2

Pursuant to Supreme Court Rule 13.1, this petition has
been filed within 90 days of the denial of rehearing. The
jurisdiction of this Court is invoked pursuant to 28 U.S.C.
§1254.

CONSTITUTIONAL PROVISION INVOLVED

Section 1 of the Fourteenth Amendment to the United
State Constitution provides:

All persons born or naturalized in the United
States, and subject to the jurisdiction thereof,
are citizens of the United States and the State
wherein they reside. No State shali make or
enforce any law which shall abridge the
privileges or immunities of citizens of the
United States; nor shall any State deprive any
person of life, liberty, or property, without due
process of law; nor deny to any person within
its jurisdiction the equal protection of the
laws.

STATUTORY PROVISION INVOLVED
Section 42 U.S.C. §1983 provides:

Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen
of the United States or other person within the
jurisdiction thereof to the deprivation of ay
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 except
that in any action brought against a judicial
officer for an act or omission taken in such
officer’s judicial capacity, injunctive relief

3

shall not be granted unless a declaratory
decree was violated or declaratory relief was
unavailable. For the purposes of this section,
any Act of Congress applicable exclusively to
the District of Columbia shall be considered to
be a statute of the District of Columbia.

STATEMENT OF THE CASE
INTRODUCTION

In this case, Plaintiff-Appellant, Tommy Schroeder
(“Schroeder”) filed suit against the defendants pursuant to 42
U.S.C. §1983 because the defendants violated his right to
equal protection under the law. Specifically, the defendants
allowed students, staff and parents to harass him on the basis
of his sexual orientation while he was employed as a teacher
at the Hamilton School District (“HSD”) outside of
Milwaukee, in the State of Wisconsin. (R.Doc. 1, pp. 10, 15-
16).

Schroeder taught at the HSD for 22 years. Starting as
early as 1989, Schroeder endured death threats and verbal
assaults. In 1989, an eighth-grade student told Schroeder he
was a “stupid faggot” and that he “was going to blow
[Schroeder’s] fucking head off.” (R.Doc. 98A, pp. 66-68). In
1996, another student said he was “... going to kill Mr.
Schroeder” that “stupid queer.” (R.Doc. 98A, pp. 12-15, Ex. 3
and pp. 71, 74-75). In 1995, Schroeder was physically
confronted by one student, large for his age, who called
Schroeder a “faggot” and said: “How sad there are ANY gays
in the world.” (R.Doc. 98A, pp. 12-15, 177-179 and Ex. #43,
160(2nd page); R.Doc. 98 (Loreenz Dep. pp. 64-70).

Starting as early as 1993, Schroeder also endured
hateful graffiti: In 1993, Schroeder found graffiti in the boys
bathroom that said “Schroeder is a faggot” (R.Doc. 98A, pp.
12-15, Ex. 3) and in 1994, one bathroom was graffiti-bombed
with graffiti on every surface of the bathroom saying
“Schroeder sucks big cocks” and “Schroeder is a faggot.” (R.
Doc. 98A, pp. 12-15, 163-64; R.Doc. 98A, pp. 154-66; R. Doc.
98G, pp. 35, 75-79, 121-22).

4

From 1994 through 1996, Schroeder endured students
taunting him by shouting “faggot” or “queer” out in the
hallways during breaks in classes, in the lunchroom, on the
playground, in his own classroom and during mandatory bus
duty assignments. (R.Doc. 98B, pp. 34-42, 75-81, R.Doc. 98G,
pp. 75-86, R.Doc. 98 (Norene Dep., p. 70-74); R.Doc. 98
(Lorenz Dep., pp. 77-80); R.Doc. 98C, pp. 212-20, 245-64,
277-95, Ex. ##149-152, 154, 168-69, 171).

From 1994 through 1998, Schroeder endured phone
messages left at home and school from students chanting
obscenities like “faggot, faggot, faggot” or baiting him with
questions like “do you suck cock?” and “are you a faggot?”
(R.Doc. 98A, pp. 12-15, 142-43, 314 , 329 and Ex. 48, p. 3;
R.Doc. 98C, pp. 227-29, 253, 292, 304-05; R.Doc. 98, Exh. #3).

From 1995 through 1998, Schroeder endured hateful
comments from parents. One parent physically confronted
Schroeder and said to his face: “I don't want queers teaching
my son.” (R.Doc. 98A, pp. 12-15, Ex. 3 and p. 144). Another
parent in 1997 was heard accusing him of sexually abusing
small boys. (R.Doc. 98A, pp. 273-283, 299; R.Doc. 96; R.Doc.
98E (Curtis Deposition, p. 13-14)). Another parent called
Schroeder anonymously and said “faggot, stay away from our
kids.” (R.Doc. 98A, p.142). And yet another parent called
anonymously to tell Schroeder: “we just want you to know,
you fucking queer, that when we pull out all of our kids, you
will have no job.” (R.Doc. 98A, p., 145). In 1997, a
memorandum was circulated among parents and staff which
began as follows: “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?” (R.Doc. 98A, pp. 192-95,
Ex. #16).

During all these long years of abuse, despite
undisputed knowledge of the abuse, the Defendants did not
protect Schroeder and were intentionally indifferent to his
suffering. Schroeder requested transfers from the Middle
School, but the transfer requests were refused. (R.Doc. 98A,
pp. 12-15, 171-74; Ex. 3). The District “blamed the victim”
and said “boys will be boys” and “you'll just have to ignore it.”
(R.Doc. $8 Ex. #39, R.Doc. 98C, p. 279). The Defendants did

5

not even protect Schroeder when the abuse happened in
front of District Administrators. For example, when one of
the student who had made a death threat was in Assistant
Principal's office, the student again physically confronted
Schroeder and angrily demanded: “Well, are you a queer?”
(R.Doc. 98A, pp. 12-15, Ex. 3). The Administrator did not
protect Schroeder, cut short the confrontation, or discipline
the student. In fact, the Administrator later turned on
Schroeder and demanded to know why he had taken notes
during the meeting and angrily shouted: “.... there is not going
to be any legal action ....”. (R.Doc. 98A, pp. 12-15, Ex.## 3,
160(2nd page); R.Doc. 98C, pp. 271-74). Among many other
things, the District refused to publicly repudiate the
Memorandum that suggested that gays/lesbians were not
“good role models” for elementary students. (R.Doc. 98E, pp.
165-184).

In fact, Schroeder's direct supervisors were so
completely and recklessly indifferent to the daily abuse that
Schroeder was suffering that they only informed the
Superintendent of the abuse three years after the abuse
started and, then only at the insistence of the Teachers’
Union. (R.Doc. 98C, pp. 236-238; see also R.Doc. 98F, pp. 124-
25, 155, 163, 177, 207; see also R.Doc. 98E, p. 41; R.Doc. 98F
pp. 164, 210). In fact, far from defending Schroeder and
preventing the abuse, Schroeder's then-Principal, threatened
to institute “proximity supervision” of Schroeder’s male
students. “Proximity supervision” was a code phrase for not
allowing Schroeder to be alone with male students. (R.Doc.
98A, pp. 295-97). The District also allowed at least one
student to be removed by the student’s parents from
Schroeder's classroom because he was gay. (R.Doc. 98 Ex.
#19, R.Doc. 98B, pp. 72-74, 84-85, 100-101).

As a result of these years of abuse, in February 1998,
Schroeder suffered a mental breakdown and was forced to
leave his teaching job. Schroeder has been unable to work
since that time and is now on disability.

6
REASONS FOR GRANTING THE WRIT

THE SEVENTH CIRCUIT HAS ENTERED A DECISION
IN CONFLICT WITH DECISIONS OF OTHER UNITED
STATES COURTS OF APPEALS ON AN IMPORTANT
MATTER.

The case at bar is one where the §1983 violation is
employment discrimination akin to the kinds of
discrimination that violate the Civil Rights Act of 1964, as
amended, 42 U.S.C. §2000e-2(a)(1), et. seq. (“Title VII”). See,
Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75
(1998), Burlington Industries, Inc. v. Ellerth, 524 U.S. 742
(1998), and Faragher v. City of Boca Raton, 524 U.S. 775
(1998). The Seventh Circuit declined to use Title VII analysis
in Schroeder's case. App. p. 7a. The Supreme Court has not
directly addressed the interaction between §1983 and Title
VII. However, there is significant authority for the principle
that Title VII analysis should be applied in §1983 cases based
on employment discrimination. See, Judge Charles R. Richey,
Manual on Employment Discrimination and Civil Rights
Actions, §4.37 (§1983 and Employment Discrimination) and
§4.85 (Burdens of Proof (in §1983 employment discrimination
actions)) (2d ed. 1988, 2002 update).

At least five Circuits apply Title VII analysis and
caselaw in §1983 cases where the claimed Equal Protection
violation is employment discrimination. For the Eleventh
Circuit, Harris v. Shelby County Board of Ed., 99 F.3d 1078
(11" Cir. 1996), states plainly “[w]e evaluate Title VII and 42
U.S.C. §1983 race discrimination claims supported by
circumstantial evidence using the framework set out the
United States Supreme Court in McDonnell Douglas ...” Id.,
at p. 1082-83 (cites omitted). In the Sixth Circuit, Weberg v.
Franks, 229 F.3d 514 (6" Cir. 2000), also quite plainly states:
“Because both Title VII and §1983 prohibit discriminatory
employment practices by public employers, this court looks
to Title VII disparate treatment cases for assistance in
analyzing race discrimination in the public employment
context under §1983.” Jd., at p. 522 (footnote omitted). In

7

the Fifth Circuit, Wallace v. Texas Tech. Univ., 80 F.3d 1042
(5" Cir. 1996), stated: “To succeed on a claim of intentional
discrimination under Title VII, Section 1983, or Section 1981,
a plaintiff must first prove a prima facie case of
discrimination.” [d., at p. 1047. In the Third Circuit, “the
standards governing a sex discrimination suit brought under
§1983 are parallel to those employed under Title VII” and the
McDonnell/Douglas burden-shifting analysis was applied.
Molthan v. Temple University, 778 F.2d 955, 961 (3d Cir.
1985).

In the Eighth Circuit, Hervey v. City of Little Rock,
787 F.2d 1223, 1231 (8" Cir. 1986) states: “The common
inquiry under §§1981, 1983 and Title VII is whether
intentional discrimination was present.” Similarly, in Briggs
v. Anderson, 796 F.2d 1009, 1021 (8" Cir. 1986), the Court
stated: “The inquiry into intentional discrimination is
essentially the same for individual actions brought under
§§1981 and 1983, and we will therefore confine the discussion
to Title VII.” The Eighth Circuit also stated “Discriminatory
intent is the key issue under Title VII, §1981 and §1983.” Id.
at 1019.

It is not immediately apparent from its opinion why
the Seventh Circuit declined to use Title VII analysis in
Schroeder’s case. However, in another opinion comparing a
§1983 and Title VII sexual harassment claims, the Seventh
Circuit has stated: “Under either cause of action, there must
be a showing of sexual harassment or discrimination. There
is, however, an important distinction for purposes of our
review which exists between the two; intent to discriminate
must be shown under equal protection while Title VII
requires no such showing.” Trautvetter v. Quick, 916 F.2d
1140, 1149 (7th Cir. 1990). The Seventh Circuit is wrong:
intent to discriminate is always an element to be proved
under Title VII. McDonnell Douglas Corp. v. Green, 411 U.S.
792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see also Briggs v.
Anderson, 796 F.2d at 1021.

While the United States Supreme Court has never
directly addressed this issue, some Supreme Court
precedents approve of using the same legal standards and

8

analysis among and across cases involving §1983, Title VII
and Title IX (20 U.S.C. §1681 et. seq.). See Gebser v. Lago
Vista Independent School Dist., 524 U.S. 274, 290-91, 118
S.Ct. 1989, 1999-2000, 141 L.Ed.2d. 277 (1998) (applying §1983
deliberate indifference standard (and citing §1983 caselaw)
to the Title [IX analysis); see also Davis v. Monroe Board of
Ed., 526 U.S. 629, 119 S.Ct. 1661, 1671, 143 L.Ed.2d 839 (1999)
(discussing Gebser).

Petitioner Schroeder respectfully suggests that the
Third, Fifth, Sixth, Eighth and Eleventh Circuit Courts of
Appeals have the better reasoning and that the United States
Supreme Court should resolve this conflict in favor of using
Title VII analysis in §1983 cases where the claimed equal
protection violation is illegal employment discrimination by a
public employer.

Solid legal and public policy reasons require this. The
Title VII analysis is a more well-developed and well-known
method of analyzing the first and second prongs of the three-
part Equal Protection analysis ((i) differential treatment, (ii)
intent and (iii) no relationship to legitimate state interest).
This is the proper analysis since the very gist of employment
discrimination is differential treatment. A showing of intent
is required under the Title VII analysis, just as it is under
equal protection analysis. Compare McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973) and Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90
L.Ed.2d 69 (1986).

As for the final prong —no relation to a legitimate state
interest — plaintiff respectfully asserts there can be no
legitimate state interest in discriminating in employment, not
even to save money.

Applying Title VII analysis in §1983 employment
discrimination cases would clarify and lend uniformity to the
application of the law for the trial courts. This would also
reinforce the principal that, when a private employer
discriminates, it is illegal, but when a public employer
discriminates it is both illegal and unconstitutional. Johnson
v. City of Ft. Lauderdale, 148 F.3d 1228 (11" Cir. 1998)
(§1983 and Title VII are and were meant to be parallel

9

remedies). Applying Title VII analysis would also allow a
§1983 plaintiff to avail him or herself of the distinct analytical
frameworks established under Title VII law: (i) hostile
working environment cases (e.g., Oncale v._ Sundowner
Offshore Services, Inc., 523 U.S. 75 (1998), Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher
v. City of Boca Raton, 524 U.S. 775 (1998)) and (ii)
differential treatment cases under McDonnell_Douglas Corp.
v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)
and its progeny. Since Schroeder has a hostile working
environment case, it makes sense to use Title VII analysis, as
cases that plead hostile working environments solely under
§1983 are few and far between. See Annis v. County of
Westchester, 36 F.3d 251 (2d Cir. 1994); Quinn v. Nassau
County Police Department, 53 F. Supp. 2d 347 (E.D.N.Y.
1999); Beardsley v. Webb, 30 F.3d 524 (4th Cir. 1994).

In the case at bar, plaintiff offered this analytical
framework to the trial court and specifically invited the
Seventh Circuit to follow its sister Circuits in applying the
Title VII framework to this §1983 case.

The Seventh Circuit declined.

Plaintiff respectfully suggests that the better law and
practice is that established in the Third, Fifth, Sixth, Eighth
and Eleventh Circuits and apparently relied upon in the
Second and Fourth Circuits; the Seventh Circuit should be
reversed to make hostile working environment employment
discrimination law under §1983 uniform.

THE SEVENTH CIRCUIT HAS DECIDED AN
IMPORTANT QUESTION OF FEDERAL LAW IN A WAY
THAT CONFLICTS WITH PELEVANT DECISIONS OF
THIS COURT AND HAS DECIDED AN IMPORTANT
QUESTION OF FEDERAL LAW THAT HAS NOT BEEN,
BUT SHOULD BE SETTLED, BY THIS COURT.

Aside from the question of which analytical
framework should be used, the Majority Opinion below is in
conflict with Supreme Court precedent and has decided an

10

important question of federal law erroneously. The Majority
Opinion breaks new, and unconstitutional, ground in
promulgating a rule that public entities may pick and choose
who they will protect based on “limited resources” and
whether money exists to pay for the protection. There is no
support for this Supreme Court law and, frankly, the
proposition is anathema to the concept of Equal Protection.

The Majority Opinion begins its decent into error by
assuming, first, that “time and other resources” for
governmental entities are limited. App. p.lla (see also
Concurring Opinion, App. p. 18a). The Majority Opinion then
goes on to make the assumption that, because of the limited
time and resources, it is rational (and unavoidable) that
governmental entities must prioritize protective activities. Id.
As discussed infra, neither assumption is factually or
logically correct and neither had evidentiary support in the
trial court Record. The Majority Opinion then builds on these
assumptions and instructs governmental entities that they
may constitutionally rank groups in order of priority, and
then provide more or less protection to individuals in those
groups depending on where the group falls in the ranking. Id.
Further compounding the error, the Majority Opinion holds
that -governmental entities in this Circuit may also
constitutionally rank groups by size and give more protection
to bigger groups. App. p. lla (“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.”)
(emphasis added).

The Majority Opinion proffers these extraordinary
pronouncements on the false belief that the rational basis test
permits a governmental entity to use cost and limited
resources as a legitimate reason for choosing which group or
groups receive equal protection of the laws.

The legal principal put forth by the Majority Opinion
is in conflict with Romer v. Evans, 517 U.S. 620, 634-35, 116
S.Ct. 1620, 134 L.E.2d 855 (1996). Romer struck down, as a
violation of the Equal Protection Clause, a Colorado

11

constitutional provision that prohibited all legislative,
executive, or judicial action designed to protect gays and
lesbians from discrimination. Romer specifically rejected the
argument that saving money was a legitimate state interest
that permitted Colorado to withdraw equal protection from
gays and lesbians. The Court stated: “Colorado also cites its
interest in conserving resources to fight discrimination
against other groups. The breadth of the amendment is so far
removed from these particular justifications that we find it
impossible to credit them. We cannot say that Amendment 2
is directed to any identifiable legitimate purpose or discrete
objective.” Id. at p. 635.

The Majority Opinion cited two Supreme Court cases,
both of which are completely inapposite. Wayte v. United
States, 470 U.S. 598 (1985), allows prosecutorial discretion in
the enforcement of laws requiring registration for the draft.
United Air Lines, Inc. v. Civil Aeronautics Bd., 766 F.2d
1107 (7th Cir. 1985), involves an administrative law question
regarding whether a federal agency may use “common sense”
in promulgating a rule against alleged deceptive practices by
airlines, rather than be required to hold hearings. Id. at 1112-
3. Neither case provides any support for the principal that
limited resources permits the government to prioritize
protective activities.

Not only does the Majority Opinion below conflict
with Supreme Court precedent, it is bad public policy. To
allow governmental entities to use “saving money” as the
rational basis for choosing between and among which groups
to protect will have catastrophic and far-reaching results, felt
far beyond the confines of gay/lesbian civil rights. This is an
exception that will swallow all the rules.

Plaintiff respectfully suggests that the reasoning used
in Saenz v. Roe, 526 U.S. 489, 504, 119 S.Ct. 1518, 143 L.Ed.2d
689 (1999), be applied here. Saenz held saving money was a
legitimate state interest, but it did not justify discrimination
against the indigent. Plaintiff respectfully suggests that
saving money cannot justify employment discrimination.

In the case at bar, not only did the Majority Opinion of
the Seventh Circuit err by holding that, in general, saving

aa a AD ee

12

money can be a rational basis for choosing which groups are
going to receive governmental protection, the Majority
Opinion was also erred when it concluded that the
defendants in this case used “limited resources” as their
rationale for refusing to protect Schroeder from harassment.

The Majority Opinion basically fabricates from thin air
this “rational” basis for the School District’s discrimination of
Schroeder. Philosophically, time and resources may be
“limited,” but it is false to assume that, in this case, time and
resources were limited. Moreover, despite the Majority’s
assumption to the contrary, there is no necessary correlation
between limited resources and a decision to prioritize
protective activities. Confronted with both limited resources
and a requirement of protection, a governmental entity has
many choices. For example, the entity may: (i) increase
resources, (ii) decrease levels of protection for all groups,
(iii) choose to protect some groups and not others, (iv)
choose to protect some groups more and some groups less.
Options (iii) and (iv) are unconstitutional.

The Majority’s conclusion that, in this case, the
defendants used limited resources as its rational basis for
denying Schroeder equal protection of the law is false. There
is no evidence that Hamilton School District chose to allow
Schroeder to be harassed and abused because they could not
afford to protect him. There is no evidence that they chose to
spend their resources elsewhere. There is simply no
evidence at all to show how much time ard how much money
it would have taken to protect Schroeder from the
harassment he suffered. That this is a disputed question of
fact is abundantly demonstrated by the conflicting opinions
written by the members of the Panel. Cf., App. p. lla, pp.
18a-19a (Posner, concurring), and pp. 25a-26a (Wood,
dissenting). Just as importantly, the School District did not
proffer this as a reason for refusing to protect Schroeder.
Consequently, Schroeder was not given an opportunity at
trial (or during discovery or summary judgment) to test with
evidence the theory that the District did not have enough
resources to protect “one homosexual teacher” from the
taunting and abuse of students, teachers, staff and parents.
The Majority based its decision on speculation, not the facts.

13

With due respect, the Majority Opinion issued by the
Seventh Circuit is in error.

CONCLUSION

For the above reasons, a writ of certiorari should
issue to review the judgment and opinion of the Court of
Appeals for the Seventh Circuit.

Respectfully submitted,

Brenda Lewison

Counsel of Record
Law Office of Brenda Lewison
135 W. Wells St., Suite 340
Milwaukee, WI 53203
(414) 287-1171

Attorney for Petitioner

Dated: August 15, 2002

la

(Any footnotes trail the end of each document.)
No. 01-1906

UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

Tommy R. Schroeder,
Plaintiff-Appellant,

Vv.

Hamilton School District, et al.,
Defendants-Appellees.

October 26, 2001, Argued
March 11, 2002, Decided

COUNSEL:
For TOMMY R. SCHROEDER, Plaintiff - Appellant: Brenda L.
Lewison, Milwaukee, WI USA.

For HAMILTON SCHOOL DISTRICT, GARY AMOROSO,
DEAN SCHULTZ, RICHARD LADD, KATHLEEN COOKE,
Defendants - Appellees: Michael J. Cieslewicz, KASDORF,
LEWIS & SWIETLIK, Milwaukee, WI USA.

JUDGES:

Before Posner, Manion, and Diane P. Wood, Circuit Judges.
Posner, Circuit Judge, concurring. Diane P. Wood, Circuit
Judge, dissenting.

OPINIONBY:
Manion

OPINION:

Manion, Circuit Judge. Tommy Schroeder, a school
teacher, filed suit against his former employer, the Hamilton
[Wisconsin] School District, the school district administrator,

2a

and several staff administrators (including school principals
and human resource directors), pursuant to 42 U.S.C. § 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. ™

While there were isolated incidents involving parents, “ as
well as some of Schroeder's colleagues, “ 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; a
student 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

3a

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
reporied 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.™ Much of the harassment, however, was
anonymous, and therefore went unpunished. As Patty
Polcezynski, the associate principal at Templeton, told
Schroeder, "it 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 "if 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 Polcezynski,
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,

4a

"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. § 1983, alleging that they denied him
equal protection of the law by failing to take effective steps to

5a

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.

Il.

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 ™
and 42 U.S.C. § 1983. ™ 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, 134 L. Ed. 2d 855, 116 S.
Ct. 1620 (1996); Bowers v. Hardwick, 478 U.S. 186, 196, 92 L.
Ed. 2d 140, 106 S. Ct. 2841 (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

6a

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 decision-maker
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. 92
F.3d 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 .§ 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

7a

U.S. 83, 102, 140 L. Ed. 2d 210, 118 S. Ct. 1003 (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, § 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, "in 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

8a

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
district-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, 143 L. Ed. 2d 839, 119 S. Ct. 1661 (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

9a

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 Polezynski 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.

10a

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." Having reviewed the
record, we concur with the district court's conclusion in this
regard. Furthermore, the fact that the defendants 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

lla "

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, 84 L. Ed. 2d 547, 105 S. Ct. 1524 (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

12a

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 nc 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

13a

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, 21 L. Ed.
2d 731, 89 S. Ct. 733 (1969) (holding that students "may
express [their] opinions, even on controversial subjects . . . if
[they do so] without 'materially and substantially interfering
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, "at times, the plaintiff appears to be
taking the position that the defendants are liable merely

l4a

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 ahonymous, 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. “ 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.

Ill.

15a

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

nl 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."

n2 For example, in 1995, the father of one student told
Schroeder, "I don't want queers teaching my son."

n3 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 orientation 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 presence). 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.

n4 For example, the students who "graffiti-bombed" the
bathroom were punished for vandalism.

l6a

n5 The Equal Protection Clause provides that "no State
shall .. . deny to any person within its jurisdiction the equal
protection of the laws." U.S. Const. amend. XIV § 1.

n6 42 U.S.C. § 1983 provides that "every 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... ."

n7 Schroeder's attorney even acknowledged that
"uncovering evidence of differential treatment based on
comparison was difficult."

n8 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 § 1983 liability under Monell v. New York
City Dept. of Soc. Services, 436 U.S. 658, 694, 56 L. Ed. 2d 611,
98 S. Ct. 2018 (1978), and its progeny.

CONCURBY:
Posner

CONCUR:

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 attenuated 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

17a

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, 103 L. Ed. 2d 249, 109
S. Ct. 998 (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, 29 L. Ed.
2d 438, 91 S. Ct. 1940 (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 rei.
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 discrimination can survive
"strict scrutiny."

Homosexuals have not been accorded the constitutional
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,
145 L. Ed. 2d 1060, 120 S. Ct. 1073 (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.

18a

But the word "irrational" is the key to determining the scope
of this principle. Discrimination against homosexuals 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, 134 L.
Ed. 2d 855, 116 S. Ct. 1620 (1996), attributed to a state
constitutional provision that forbade municipalities to enact
gay-rights ordinances; see also Stemier v. City of Florence,
126 F.3d 856, 874 (6th Cir. 1997), or if, though devoid of
animus, the discrimination simply bore no rational relation to
any permissible state policy.

Schroeder has not presented evidence from which a
reasonable jury could infer that the defendants, which is to
say the school and the school authorities as distinct from
students and parents, were hostile to Schroeder because he
was a homosexual (were hostile to him, period), although 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
whether the defendants would have been irrational in failing
to protect a homosexual teacher as assiduously 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 Greater Cincinnati, Inc. v. City of Cincinnati,
128 F.3d 289, 300 (6th Cir. 1997), 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, 84 L. Ed. 2d 547, 105
S. Ct. 1524 (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.

19a

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 disproportionate commitment of resources to the
effort or a disproportionate curtailment of student rights.
Indeed, as Judge Manion's opinion properly emphasizes, 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 students.

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 homosexuality, 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

20a

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 relies. 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. 92
F.3d 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 discrimination, and it figured importantly in the
court's holding. See id. 92 F.3d 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 authority, and mounting litigiousness is an
undertaking at once daunting and thankless. We judges
should not make it even more daunting by injecting our own
social and educational values in the name of "rationality
review." So while in hindsight 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.

SREB A SEPE POE <

:
i
cd
£

2la

DISSENTBY:
Diane P. Wood

DISSENT:

Diane P. Wood, Circuit Judge, dissenting. In this case, the
majority holds that Tommy Schroeder, an openly homosexual
teacher who was subjected to severe harassment on the job,
cannot survive summary judgment on his claim under 42
U.S.C. § 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 inconsistent with the
Supreme Court's recognition in Romer v. Evans, 517 U.S. 620,
134 L. Ed. 2d 855, 116 S. Ct. 1620 (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 tort-feasors take their victims as they find
them. See Restatement (Second) of Torts § 461 (1986 App.);
see also Brackett v. Peters, 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 tort-feasor takes his victim as he
finds him, but also that psychological vulnerability is on the
same footing with physical.").

22a

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); Haugerud 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 recognizing 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 attention). See also Davis v.
Monroe County Bd. of Educ., 526 U.S. 629, 143 L. Ed. 2d 839,
119 S. Ct. 1661 (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

ORTON ER RS RNY

oe PR ARR

2 AAT REIN AT TEL IR Bae oe

23a

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 violation 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, 145 L. Ed. 2d 1060, 120 S. Ct. 1073 (2000) (per
curiam) (recognizing that even a "class of one" may state a
claim under the Equal Protection Clause). It also appears to
admit that homosexuals might constitute one such group.
Ante at 7 (majority opinion); 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 decision from the
Supreme Court in recent years to address an equal
protectionargument where the class of homosexuals were
singled out for uniquely disfavored treatment. Bowers v.
Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140, 106 S. Ct. 2841
(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.
478 U.S. at 202-03 n.2. In Webster v. Doe, 486 U.S. 592, 100 L.
Ed. 2d 632, 108 S. Ct. 2047 (1988), the Court considered the
question 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 § 102(c) of
the National Security Act, 50 U.S.C. § 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. § 701), but it remanded for further
proceedings on the plaintiff's constitutional claims, inciuding
his claim based on the Equal Protection Clause. The later
case of Boy Scouts of America v. Dale, 530 U.S. 640 (2000),

24a

dealt with the question whether the First Amendment
associational rights of the Boy Scouts organization 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 (concurrence). This cannot be a serious point.
Adding two words, "sexual orientation," to the memorandum
that was circulated could hardly have added a second to the

25a

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 everyone 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 memorandum, coming on
the heels of the offensive incidents and Schroeder's
complaint about exactly that kind of harassment, implies
official tolerance, 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
religions 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 Afghanistan, 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, 108 L. Ed. 2d 876, 110 S. Ct.
1595 (1990); Prince v. Massachusetts, 321 U.S. 158, 88 L. Ed.
645, 64 S. Ct. 438 (1944); Reynolds v. United States, 98 U.S. 6
Otto) 145, 25 L. Ed. 244 (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,
however, must be made on a_ case-by-case basis.
Systematically to put cases involving harassment based on
homosexuality (or any other recognized classification) below

26a

the threshold for any action at all amounts to the kind of
differential unfavorable 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 orientation 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.

27a
Case No. 98-C-1270

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

TOMMY R. SCHROEDER,
Plaintiff,

V.

HAMILTON SCHOOL DISTRICT, GARY AMOROSO, DEAN
SCHULTZ, RICHARD LADD, KATHLEEN COOKE,
KRIS WETHERALL, KEITH HICKLIN, KATHERINE
CROWLEY, AND PATTY POLCZYNSKI,
Defendants.

Filed March 16, 200i
DECISION AND ORDER

This action was commenced when, on December 31, 1998,
Tommy r. Schroeder filed a complaint in the United States
District Court for the Eastern District of Wisconsin. The
complaint names as defendants Hamilton School District,
Gary Amoroso (employed by the District as, at different times
during the relevant period, Principal of Templeton Middle
School, Principal of Hamilton High School, and Director of
Educational Services/ Human Resources), Dean Schultz
(employed by the District as Director of Educational
Services/ Human Resources beginning July 1, 1996), Richard
Ladd (employed by the District as Principal of Lannon
Elementary School beginning July 1, 1997), Kathleen Cooke
(employed by the district as the District Administrator
beginning July 1, 1993), Kris Wetherall (employed by the
District as a teacher at Lannon Elementary School beginning
in 1995), Keith Hicklin (employed by the District as the
Principal of Templeton Middle School from September 7,
1993, to June 30, 1996), Katherine Crowley (employed by the
District as Assistant Principau Activities Coordinator at
Templeton Middle School from July 1, 1990, to June 30, 1992,

28a

and as Associate Principal at Templeton Middle School from
July 1, 1992, to July 1, 1994), and Patty Polczynski (employed
by the District as Associate Principal at Templeton Middle
School from August 23, 1994, to June 30, 1996, and as
Principal beginning July 1, 1996).

The complaint alleges that the defendants are liable under 42
U.S.C. § 1983 for violating the plaintiffs Fourteenth
Amendment right to equal protection of the laws. On
September 25, 2000, pursuant to a stipulation between the
parties, the court entered an order dismissing Katherine
Crowley and Kris Wetherall from this action with prejudice
and without costs.

.The following motions are currently before the court: (1)
defendants’ motion for summary judgment; (2) plaintiff's
motion for summary judgment; (3) defendants’ motion in
limine to bar testimony by Ellen Bravo; and (4) defendants’
motion in limine to limit testimony of Dr. Paul Linden. The
court will deal first with the defendants’ motion for summary
judgment

I. FACTS

Each party has submitted its own proposed findings of fact.
Each has also submitted objections to its opponent’s
proposed findings. After reviewing these documents, the
court finds the following uncontested facts.

Tommy Schroeder taught in the Hamilton School District
from 1976 until February 11, 1998. He taught at Templeton
Middle School (Templeton) from approximately 1990 through
the end of the 1995-96 school year.

Between 1993 and 1998, Schroeder was often harassed
because he was gay. For example, on two occasions, one in
1994 and one in 1995, students vandalized a school bathroom,
writing on the walls vulgar comments about Schroeder such
as "Schroeder sucks big cocks.” Although Templeton’s

29a

associate principal (a position held by either Katherine
Crowley or Patty Polczynski during the 1994-1995 school
year)fnl has the primary responsibility for disciplining
students, the school’s principal (Keith Hicklin) handled the
disciplinary actions for the students responsible for this
particular incident.

Following the graffiti incident, there was much "talk and
gossip”, among both teachers and students about the incident
itself and about Schroeder’s sexual orientation. Defendant
Gary Amoroso, who was Templeton’s principal from July 1,
1990, to July 22, 1993, Hamilton High School's principal from
July 23, 1993, to August 14, 1994, and Director of Educational
Services/ Human Resources from August 15, 1994, to June 24,
1996, made derogatory comments about gays and lesbians.
Schroeder heard that teachers at Templeton were making
derogatory comments about him as well. In January of 1995,
Schroeder reported that he had overheard a student say “it’s
too bad there are any gays at all.” About two weeks later a
student’s father told Schroeder, “I don’t want queers teaching
my son.” Schroeder also was told by at least two teachers
from another school in the district that elementary school
students were gossiping about his sexual orientation.

Schroeder also received “abusive and obscene phone calls” at
his home, during which the callers would do such things as
chant “faggot, faggot, faggot.” Schroeder also had an obscene
phone call left on his school voicemail. He reported the
incident and defendant Hicklin, the Templeton principal,
listened to the recording.

Schroeder also received a harassing note in his school
mailbox asking him if he was a “faggot.” One student passed
to another a note about Schroeder's sexual orientation, and
another student passed a poem describing Schroeder in |
derogatory terms. Schroeder also had obscenities (such as
“queer”, “faggot”, and “cocksucker’) shouted at him while he
was on bus duty; he was once physically confronted by one of
the students who had been shouting obscenities.

iii

30a

Schroeder had four or five conversations one as early as
January 1995, with defendant Polczynski during which he
reported being harrassed by students. During one of these
conversations, Polczynski responded to Schroeder’s
complaints by saying “you can’t stop middle school kids from
saying things. Guess you just have to ignore it.”

Schroeder also reported the incidents that occurred while he
was on bus duty and asked both defendant Polczynski and
defendant Hicklin to remove him from bus duty; each denied
his request.

At the end of the 1993-94 school year and again on April 15,
1996, Schroeder requested a transfer to one of two
elementary schools in the district. The latter request was
granted and Schroeder was transferred to Lannon
Elementary School. He taught at Lannon from the beginning
of the 1996-97 school year and continued until February 11,
1998.

Schroeder’s problems did not subside with his transfer to
Lannon. In 1997, the tires on his car were slashed at his
house. In August of that year, a document entitled “Facts
That Will Affect Our Children” was circulated. Part of the
document read: “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?” The fact that the
plaintiff is gay led at least one parent to actually remove his
child from Schroeder's class. Schroeder also began to hear
that staff and parents were calling him a pedophile. One
student’s parents’ fear that Schroeder was a pedophile led
defendant Richard Ladd, Who was Lannon’s principal, to
raise the possibility of “proximity supervision” of the student.

On February 11, 1998, Schroeder had what he calls s “mental
breakdown” and had to leave school. When Schroeder
returned a couple of weeks later, Ladd gave him a four page
critical letter. The District terminated Schroeder's
employment by 2 letter dated March 10, 1999.

aaa

3la

Although they knew of the harassment that the plaintiff had
been suffering, none of the defendants ever made a public
statement in support of Schroeder. The schools did not use
the several “class expectation talks" or school assemblies as
opportunities to discuss sexual orientation harassment or the
anti-gay comments that were being made about Schroeder.
Further, despite Schroeder’s request and suggestion, the
District never held an inservice or otherwise provided
training devoted primarily to sexual orientation harassment.
The District did, however, hold inservices devoted to sexual
harassment and racial discrimination.

Again, the preceding facts are uncontested. In Opposing the
defendants’ summary judgment motion, the plaintiff has also
contested several of the defendants’ factual assertions and
has asserted additional facts of his own. The additional facts
presented by the plaintiff follow.

Schroeder alleges that, during the 1995-96 school year, a
student “said something similar to "I am going to kill that
faggot, Schroeder.” Schroeder also contends that, while "he
did not report every single incident of anti-gay and
homophobic harassment that he suffered, [he] did report[ ]
dozens of such incidents to his superiors and the
administration.” Nonetheless, “there were incidents where
students were not punished and the District never addressed
the larger issue of gossip, cat-calling and innuendo. . . In
addition, there was at least one incident where the District
failed to investigate a reported incident.”

Schroeder also asserts that:

[t]he District failed to take concrete, specific and effective
steps to prevent anti-gay harassment of Schroeder during bus
duty. Polcynski, for example, admits that, if it had been a
female teacher being continuously taunted with the word
“cunt,” she would have punished students who were
identified, informed the Principal of the situation, talked to
the bus driver to identify students and she would have called
student witnesses individually into her office for private

32a

questions in an effort to identify the misbehaving students.
Polcynski never took these actions in Schroeder's case.

Schroeder makes several allegations with respect to one of
the graffiti incidents described above. He admits that the
administration identified and punished the students who
were responsible for the graffiti. He argues, however, that the
administration’s actions were inadequate, as they “failed to
deal [with] and prevent the resulting surge of gossip,
comments and anti-gay harassment that Schroeder then
suffered.” Schroeder contends that this particular graffiti
incident was not handled in the same manner as were other
similar incidents. More specifically, he asserts (1) that while
this type of problem typically would have been the
responsibility of then-Associate Principal Crowley, this
particular incident was handled by then-Principal Hicklin,
who was a weak disciplinarian; (2) that the graffiti was not
photographed in this instance as it usually is; (3) the students
were punished for vandalism, but not for the content of the
graffiti; (4) the students were not made to pay for the clean-
up, as was done on at least one other occasion; (5) the
students were not made to apologize for their behavior; and
(6) while a student's parents are typically called after such an
incident, Schroeder talked to the parents of one of the
students and was told that they had not been called.

Schroeder also contends that, despite his complaints and the
defendants’ consequent knowledge of the harassment he had
been suffering, the administration denied his requests (1) for
a transfer to a different school within the district, and (2) for
reassignment from bus duty.

Finally, Schroeder disputes the defendants' claim that "in-
services were conducted on harassment, including sexual
orientation, in the 1996-1997 and 1997-1998 school years."
According to Schroeder, in the course of the two in-services
conducted by the Hamilton School District, “sexual
orientation harassment was only discussed when Schroeder
raised his hand, stood up and asked about anti-gay
harassment. Neither in-service was solely or even primarily

|
ee

33a
about sexual orientation harassment.”

In short, Schroeder alleges, and the defendants do not deny,
that he suffered a series of admittedly unfortunate and
offensive insults. The disagreement between the parties is
mainly over the nature and effectiveness of the defendants’
responses to those incidents.

Il. LEGAL STANDARDS
A. Summary Judgment Standard

Fed. R. Civ. P. 56(c) provides that summary judgment “shall
be rendered forthwith if the pleadings, depositions, answers
to interrogatories, and admissions On file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law.” The nonmoving party may not
rest solely upon the allegations set forth in the pleadings, but
must set forth specific facts sufficient to raise a genuine issue
for trial. See Liu v. T & H Machine, Inc., 191 F.3d 790, 794-95
(7th Cir. 1999); Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
The genuine factual disagreement must be one involving a
“material” fact; disagreement over irrelevant or unnecessary
facts does not foreclose summary judgment. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 24849 (1986). The
nonmovant has failed to demonstrate a genuine issue of
material fact if “the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party. . .“
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). Finally, "[a]lthough we must, for
purposes of summary judgment review, draw any inferences
from the record in favor of [the plaintiff], 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) (quoting Spring v. Sheboygan Area
School dist., 865 F.2d 883, 886 (7th Cir.1989).

34a

In Celotex, the Court explained that “the plain language of
Rule 56(c) mandates the entry of summary judgment. .
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at
trial.” Addressing a motion for summary judgment therefore
requires a court to examine the nature and elements of the
underlying cause of action.

B. Section 1983 Liability

Schroeder alleges that the defendants violated 42 U.S.C. §
1983 by discriminating against him on the basis of his sexual
orientation. Section 1983 provides:

Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, 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 prorreding for redress. ... .

Enacted as part of the Ku Klux Klan Act in 1871, § 1983
provides a civil remedy for individuals who have suffered
deprivations of Constitutional ‘rights. privileges, or
immunities” at the hands of officials acting “under color of
any statute, ordinance, regulation, custom, or usage of any
State or Territory or the District of. Columbia.” 42 U.S.C. §
1983 The statute is intended both to deter state violations of
individuals’ federal rights and to provide compensation for
those who have been deprived of their rights. See Carey v,
Piphus, 435 U.S. 247 (1978).

A threshold requirement for any § 1983 claim is that the
plaintiff show that the defendants acted under color of state
law. See Webb v. City of Chester, Illinois, 813 F.2d 824, 828
(7th Cir. 1987). “Color of law is determined by the
relationship between the defendant’s misconduct and the

35a

power, authority and dutiet conferred by the state.” Rouse v.
City of Milwaukee, 921 F.Supp. 583, 588 (E.D. Wis. 1996)
(citing Polk County v. Dodson, 454 U.S. 312, 321 (1981).

While § 1983 speaks in terms of “persons” being liable for
deprivations of rights, the statute applies as well to
government bodies. The Supreme Court explained the nature
of governmental liability in Monell v. Department of Social
Services, 436 U.S. 658, 690 (1978):

[AJlthough the touchstone of the § 1983 action against a
government body is an allegation that official policy is
responsible for a deprivation of rights protected by the
Constitution, . every. . . § 1983 “person,” by the very nature of
the terms of the statute, may be sued for constitutional
deprivations visited pursuant to governmental “custom” even
though such a custom has not received formal approval
through the body’s official decisionmaking channels.

The Court explicitly rejected the notion that a government
body could be held liable under a respondeat superior theory.
That is, the mere fact that an individual who is alleged to have
acted unconstitutionally is a public employee does not
subject the governmental body to liability under § 1983. See
id at 691.

C. Equal Protection

Secticn 1983 imposes liability for the deprivation of specific
constitutional or statutory rights. Schroeder claims that the
defendants are liable under § 1983 for depriving him of his
Fourteenth Amendment right to the equal protection of the
laws. The Equal Protection Clause grants citizens “the right to
be free from invidious discrimination in_ statutory
classifications and other governmental activity.” Harris v.
McRae, 448 U.S. 297, 322 (1980). To establish liability under §
1983 for an equal protection violation, the plaintiff must show
(1) that the defendants treated him differently, (2) that the
differential treatment he received was the result of
intentional discrimination based on his membership in a

36a

particular class, and (3) that the discriminatory treatment
was not rationally related to a legitimate state interest. See,
e.g., Nabozny v. Podlesny, 92 F.3d 446, 457 (7th Cir. 1996).

1. Disparate Treatment and Discriminatory Intent

To be successful on an equal protection claim, the plaintiff
must show disparate treatment based on his membership in a
particular group. Discrimination based merely on individual,
rather than group, reasons will not suffice. See New Burnham
Prairie Homes, Inc. v. Village of Burnham, 910 F.2d 1474, 1481
(7th Cir. 1990)(emphasis in original). Nor does official action
violate the Equal Protection Clause merely because it
disproportionately impacts a particular group. Proof of an
equal protection violation requires proof of discriminatory
intent or purpose.fn2 See Arlington Heights v. Metropolitan
Housing Development Corp. 429 U.S. 252, 265 (1977);
Washington v. Davis, 426 U.S. 229, 26465 (1976). To
demonstrate discriminatory purpose, the plaintiff must do
more than show that the defendant was aware that its
decisions or actions would have particular consequences.
Rather, discriminatory purpose “implies that the
decisionmaker. . . selected or reaffinned a particular course
of action at least in part “because of,” not merely “in spite of,”
its adverse effects upon an identifiable group.” Personnel
Adm’r of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979).
The plaintiff must show that the defendants acted either
intentionally or with deliberate indifference; a mere showing
of negligence is insufficient. Nabozny, 92 F.3d at 454. While
the plaintiff is not required to prove that a challenged action
was taken solely or even primarily for discriminatory
purposes, he must show that his membership in a particular

group was a “substantial” or “motivating” factor. See Hunter
v. Underwood, 471 U.S. 222, 228 (1985); Arlington Heights,
429 U.S. at 296.

37a
2. Levels of Equal Protection Review

The Supreme Court has established three levels for reviewing
official action alleged to violate the: Equal Protection Clause:
strict scrutiny; intermediate scrutiny; and rational basis
review. The degree to which a court is to scrutinize particular
governmental action (be it legislative or executive action) is
dictated by two factors: (1) the right or rights implicated by
the challenged action; and (2) the basis upon which the
challenged governmental action classifies members of the
citizenry. Courts are to apply the highest level of scrutiny, or
“strict scrutiny,” to those government actions that either
implicate a fundamental right or classify citizens on the basis
of race, alienage, or national origin. See City of Cleburue v.
Cleburne Living Center, 473 U.S. 432, 440 (1985). Factors
such as race and national origin “are so seldom relevant to
the achievement of any legitimate state interest that laws
grounded in such considerations are deemed to reflect
prejudice and antipathy- a view that those in the burdened
class are not as worthy or deserving as others." Id.
Accordingly, governmental actions that draw distinctions on
such bases are upheld only when they are narrowly tailored
to further a compelling state interest. See Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 235 (1995).

Courts are to apply an intermediate, or “heightened”, level of
scrutiny to governmental actions that classify citizens on the
basis of gender. See Cleburne, 473 U.S. at 440. Sex is an
“immutable characteristic determined solely by the accident
of birth [and] frequently bears no relation to ability to
perform or contribute to society.” Fronticro v. Richardson,
411 U.S. 677, 686-87 (1973). A challenged official action will
survive heightened scrutiny if the government can show that
the action is_ substantially related to an _ important
governmental objective. See United States v. Virginia. 518
U.S. 515, 533 (1996)(citing Mississippi University for Women
v. Hogan, 458 U.S. 718, 724 (1982).

A governmental action which neither implicates a
fundamental right nor distinguishes among citizens on the

38a

basis of suspect or quasi-suspect classifications is subject to
the most deferential standard of equal protection review.
Such an action “is presumed to be valid and will be sustained
if the classification drawn by the [challenged action] is
rationally related to a legitimate state interest.” Cleburne, 473
U.S. at 440. Rational basis review is much less demanding
than either strict or heightened scrutiny, both in terms of the
justifying state interest that must be involved and in terms of
the “fit” between that interest and the means employed to
further it. Nonetheless, % [b]y requiring that the classification
bear a rational relationship to an independent and legitimate
[governmental] end, we ensure that classifications are not
drawn for the purpose of disadvantaging the group burdened
by the [governmental action].” Rower v. Evans, 517 U.S. 620,
633 (1996).

The Supreme Court described the parameters of rational
basis review in Heller v. Doe, 509 U.S. 312 (1993), explaining
that “rational- basis review in equal protection analysis ‘is not
a license for courts to judge the wisdom, fairness, or logic of
[governmental] choices.” Id. At 319 (quoting FCC v. Beach
Communications, Inc., 508 U.S. 307, 313 (1993). Under
rational basis review, the government has no obligation to
produce evidence to sustain the rationality of a. .
classification. . . . [Because] a classification neither involving
fundamental rights nor proceeding along suspect lines is
accorded a strong presumption of validity, [t]he burden is on
the one attacking the [governmental] arrangement to negative
every conceivable basis which might support it,’ whether or
not the basis has a foundation in the record.

Heller 509 U.S. at 320 (quoting Lehnhausen v. Lake Shore
Auto Parts Co., 410 U.S. 356, 364 (1973)). A court will find “no
constitutional violation if ‘there is any reasonably
conceivable state of facts’ that would provide a rational basis
for the government’s conduct.” Nabozny, 92 E3d at 458
(quoting Beach Communications, Inc., 508 U.S. at 313-314).

The defendants herein argue that, “because homosexuals are
neither a suspect nor a quasi-suspect class, decisions made

39a

and actions taken by the District are only subject to a rational
basis review test.” A careful reading of Nabozny, which the
defendants cite in support of their assertion, and of other
binding authority casts some doubt upon the defendants'
contention. Romer v. Evans, 517 U.S. 620 (1996), involved a
state ‘constitutional amendment that (1) repealed existing
statutes, ordinances, and _ policies that prohibited
discrimination on the basis of sexual orientation and (2)
barred any state governmental entity from adopting policies
prohibiting discrimination based on sexual orientation. After
explaining the contours of rational basis review, the Court
held that the amendment “fail[ed], indeed defie[d], even this
conventional inquiry.” Romer, 517 U.S. at 632 (emphasis
added). The language of the opinion may suggest that,
because the amendment failed even rational basis review, the
Court saw no need to decide whether classifications on the
basis of sexual orientation targeted a suspect class and
thereby triggered strict scrutiny.

Similarly, in Nabozny the Seventh Circuit indicated that,
because the official behavior in question could not survive
rational basis review, that standard was “sufficient for our
purposes herein.” Nabozay, 92 F.3d at 458. The court actually
made it explicit that it was expressing no opinion on whether
sexual Orientation is an ‘obvious, immutable, or
distinguishing’ characteristic” that triggers strict or
heightened scrutiny. Id. at 457 n. 10, 458. In fact, the court
may have signaled a potential willingness to recognize the
immutability of sexual orientation (and to therefore more
closely scrutinize discrimination on the basis of sexual
orientation), noting that “it does seem dubious to suggest that
someone would choose to be homosexual, absent some
genetic predisposition, given the considerable discrimination
leveled against homosexuals.” Id. at 457 n. 10.

While the Seventh Circuit has held that discrimination on the
basis of sexual orientation is subject to rational basis review,
that holding was in the context of discrimination in the
military. See Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir.
1989), cert. denied, 494 U.S. 1004 (1990). The military context

40a

entails unique considerations that counsel in favor of special
deference to administrative action. See, e.g., Steffan v. Perry,
41 F.3d 677 (D.C. Cir. 1994)(citing Goldman v. Weinberger,
475 U.S. 503, 509 (1986)). All that can be said with certainty is
that any state action that draws distinctions among
individuals on the basis of sexual orientation must, at a
minimum, be rationally related to a legitimate governmental
objective

Ill. ANALYSIS

That Schroeder has suffered harm, even if that harm is the
result of defendants’ failure to prevent it, is not proof of an
equal protection violation. Because “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,” Indianapolis Minority Contractors Ass’n, Inc. v.
Wiley, 187 F.3d 743, 752 (7th Cir. 1999), Schroeder must show
that actions taken or not taken by the defendants were the
result of a conscious decision to accord him different
treatment because of his sexual orientation.

That Schroeder was not reassigned from bus duty and that he
was twice denied transfers that he had requested do not in
themselves support a finding of invidious discrimination.
Schroeder provides no evidence concerning the treatment of
such requests when made by non-homosexuals. The absence
of any such evidence constitutes a severe failure of proof
with respect to both differential treatment and intentional
discrimination on the basis of sexual orientation.

The same can be said about several of the plaintiff's other
assertions, including his contentions that the defendants
failed “to take concrete, specific and effective steps to
prevent anti-gay harassment of Schroeder" and to investigate
and punish each and every instance in which a student was
overheard making or writing an inappropriate remark about
Schroeder. At 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

4la

than 100 percent effective. Such a position may be more
consistent with a type of “failure to protect” due process
claim (a claim not asserted by the plaintiff, and one that
would present the plaintiff with additional, likely
insurmountable obstacles fn3) than an equal protection
claim. Perhaps such assertions would also aid in establishing
that defendants were negligent in their response to
Schroeder’s complaints. A mere showing of negligence will
not, however, support an equal protection claim. Nabozny, 92
F.3d at 454.

The principal deficiencies in this action are illuminated by an
examination of the decision in Nabozny, the leading Seventh
Circuit case on § 1983 liability for equal protection violations
in the public school context Nabozny involved a student who
was subjected to regular harassment and physical abuse
beginning when he was in the seventh grade and lasting for
approximately four years. The onset of the abuse, which
included being regularly referred to as "faggot" and being hit
and spit upon, followed closely after the student, Nabozny,
revealed that he was gay. Nabozny reported the abuse shortly
after it began, and he was promised by the school’s principal
that he would be protected. Despite her promise, the
principal took no action. See Nabozny, 92 F.3d at 451.

The abuse Nabozny suffered soon worsened. Two students in
a science classroom pushed Nabozny to the floor, held him
down, and performed a mock rape on him while they
exclaimed that Nabozny should enjoy it. Twenty students
watched the mock rape and laughed. Nabozny escaped and
fled to the principal’s office, where he received what the
court correctly described as an “astonishing” response: the
principal told Nabozny that “boys will be boys” and that he
should expect such behavior from his fellow students if he
was “going to be so openly gay.” Id. Again, no action was
taken against the students responsible for the assault.

Shortly after Nabozny entered the eighth grade, he was
physically attacked in a school bathroom. The principal told
Nabozny and his parents that Nabozny should expect such

42a

behavior since he is openly gay. Once again, the principal
pledged to take action against the perpetrators, and once
again nothing was done. The pattern was repeated several
times while Nabozny was in the eighth and ninth grades:
following incidents of abuse (which at times included being
pelted with dangerous objects such as steel nuts and bolts
and being pushed into bathroom urinals), Nabozny and his
parents would meet with the school’s principal, who then
would promise to take action but ultimately fail to act.

As the court explained,

[t]he worst was yet to come, however. One morning when
Nabozny arrived early to school, he went to the library to
study. The library was not yet open, so Nabozny sat down in
the hallway. Minutes later be was met by a group of eight
boys led by Stephen Huntley. Huntley began kicking Nabozny
in the stomach, and continued to do so for five to ten minutes
while the other students looked on laughing.

Id. at 452. Nabozny reported the incident to the assistant
principal, who was in charge of disciplining students. The
assistant principal “laughed and told Nabozny that Nabozny
deserved such treatment because he is gay. Weeks later
Nabozay collapsed from internal bleeding that resulted from
Huntley's beating.” Id.

Nabozny and his parents ultimately were told by one of the
school’s guidance counselors “that school administrators
were unwilling to help [Nabozny] and that he should seek
educational opportunities elsewhere.” Id.

Nabozny filed suit against the school district and several of
its administrators, alleging, inter alia, that the defendants
were liable under 42 U.S.C. § 1983 for violating his right to
equal protection of the law. The district court entered
summary judgment in favor of the defendants, and the
Seventh Circuit reversed.

43a

Several things are evident when the facts in Nabozny are
compared with those in this case. First, the nature and extent
of the harm suffered by Schroeder is not the same as that
suffered by Nabozny. It is admittedly difficult to qualify or to
quantify the subjective suffering experienced by an
individual, and the court in no way means to make light of the
harm that

Schroeder suffered. From as objective a point of view as is
possible, however, it does appear that the harm suffered by
Nabozny was greater than that suffered by Schroeder.
Nabozny was subjected to repeated physical abuse, while
Schroeder was subjected to none. The fact that the abuse
Naboany suffered occurred white he was of middle school
and high school age — already an awkward and precarious
time in the lives of most - made it all the more harmful.

All of this is not to say that what Schroeder had to endure
was trivial; it surely was not. The significance of the
discrepancies between Schroeder’s situation and that of
Nabozny ties in how strongly the respective cases called out
for action by the respective defendants. The more egregious
the abuse suffered by the respective plaintiffs, the more
difficult it would be to maintain that any inaction (or only
half-hearted action) by the respective defendants was not a
deviation from ordinary practice.

An even more significant difference between Nabozny and
the present case lies in the different responses of the
defendants in the two cases. While taking no action in the
wake of reported incidents of harassment and abuse was the
exception in this case, in Nabozny it was the rule. In
Nabozny, the court found that essentially every reported
incident of harassment and abuse was met with complete
inaction on the part of the defendants. The court’s opinion
teacher involved to see if that teacher could identify either
the responsible students or any other students who may have
been witnesses. Polczynski also said she “might talk to the
bus driver and see if — the bus driver — could identify the
student.” Polczynski Deposition at p. 180. The deposition

44a

testimony that the plaintiff cites does not demonstrate that
Schroeder's case was handled differently. 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. She indicated
only that, assuming that student witnesses could be
identified, she would call

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0269%3A1. Public record. Not legal advice.