In the
United States Court of Appeals
For the Seventh Circuit
No. 95-3634
JAMIE S. NABOZNY,
Plaintiff-Appellant,
v.
MARY PODLESNY, WILLIAM DAVIS,
THOMAS BLAUERT, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 95 C 0086--John C. Shabaz, Judge.
ARGUED MARCH 28, 1996--DECIDED JULY 31, 1996
Before BAUER, ESCHBACH, and FLAUM, Circuit Judges.
ESCHBACH, Circuit Judge. Jamie Nabozny was a stu-
dent in the Ashland Public School District (hereinafter
"the District") in Ashland, Wisconsin throughout his middle
school and high school years. During that time, Nabozny
was continually harassed and physically abused by fellow
students because he is homosexual. Both in middle school
and high school Nabozny reported the harassment to school
administrators. Nabozny asked the school officials to pro-
tect him and to punish his assailants. Despite the fact that
the school administrators had a policy of investigating and
punishing student-on-student battery and sexual harass-
ment, they allegedly turned a deaf ear to Nabozny's re-
quests. Indeed, there is evidence to suggest that some
of the administrators themselves mocked Nabozny's pre-
dicament. Nabozny eventually filed suit against several
school officials and the District pursuant to 42 U.S.C.
sec. 1983 alleging, among other things, that the defendants:
1) violated his Fourteenth Amendment right to equal pro-
tection by discriminating against him based on his gender;
2) violated his Fourteenth Amendment right to equal pro-
tection by discriminating against him based on his sexual
orientation; 3) violated his Fourteenth Amendment right
to due process by exacerbating the risk that he would
be harmed by fellow students; and, 4) violated his Four-
teenth Amendment right to due process by encouraging
an environment in which he would be harmed./1 The defen-
dants filed a motion for summary judgment, which the
district court granted. Nabozny appeals the district court's
decision. Because we agree with the district court only
in part, we affirm in part, reverse in part, and remand.
I.
Before discussing the facts of this case, we must deline-
ate the scope of the record properly before the court. The
defendants argue that many of the facts relied on by
Nabozny in his appellate brief were not presented to the
district court. The defendants' argument is based on the
district court's pretrial order dated March 24, 1995, in
which the court ordered the parties to submit motions for
summary judgment by August 15, in accordance with the
local rule on summary judgment. The local rule requires
parties filing motions for summary judgment to submit
proposed findings of fact, with citations to the record. The
defendants did so. The local rule requires parties respond-
ing to summary judgment motions to present evidence,
with citations to the record, that establishes genuine
issues of material fact for trial. Nabozny responded to the
defendants' summary judgment motion by submitting a
litany of conclusory statements, largely unsupported by
citations to the record./2 The defendants maintain that ab-
sent a more definitive response by Nabozny, the district
court relied on the defendants' proposed findings of fact
to grant summary judgment in the defendants' favor.
We strictly enforce local rules, such as the summary
judgment rule in this case, holding that when the non-
movant fails to reply in the proper form he concedes the
movant's version of the facts. See Fed.R.Civ.P. 56(e);
Waldridge v. American Hoechst Corp., 24 F.3d 918, 922
(7th Cir. 1994). Nabozny's failure to comply with the local
rule entitled the district court to limit its inquiry to
whether, viewed in the light of the facts presented by
the defendants, judgment is appropriate as a matter of
governing law. Fed.R.Civ.P. 56(e); Glass v. Dachel, 2 F.3d
733, 739 (7th Cir. 1993). It is unclear whether the district
court meant to limit the record to the undisputed facts
set forth in the defendants' summary judgment motion.
The district court's summary judgment order made no
mention of the local rule, or Nabozny's failure to comply
with it.
For our purposes herein, we need not decide whether
the court relied on the local rule. Regardless of what the
district court intended, it is clear from the court's order
that it did not limit its review to the defendants' grounds
for summary judgment and proposed findings of fact. For
example, the defendants sought summary judgment on
Nabozny's equal protection claims on the basis that Nabozny
had failed to allege that any of the defendants participated
in or encouraged the harassment that Nabozny suffered.
The district court, however, granted summary judgment
on Nabozny's gender equal protection claim on the ground
that no evidence in the record suggested that the defen-
dants treated Nabozny differently because of his gender;
a different legal basis than that offered by the defendants.
The district court offered no rationale for disposing of
Nabozny's sexual orientation equal protection claim. As
for Nabozny's due process claims, the defendants offered
no rationale for rejecting Nabozny's claim that the defen-
dants enhanced the risk of harm to Nabozny. The district
court concluded sua sponte that nothing in the record sup-
ported Nabozny's claim. What is more, throughout the dis-
trict court's factual account and legal analysis, the court
relied in part on Nabozny's affidavit to establish facts pre-
sented in neither party's proposed findings of fact.
Our court has previously ruled that "[i]f the district
court is inclined to venture outside the moving party's
grounds for summary judgment and statement of undis-
puted facts, the court must be careful to ensure that the
record reveals no issue of material fact." Brown v. United
States, 976 F.2d 1104, 1110 (7th Cir. 1992). If a district
court relies on either a local rule or Federal Rule 56(c)
to limit the record for the purposes of summary judgment
to the moving party's undisputed facts, then the court can-
not look beyond the moving party's motion and selectively
incorporate legal theories or facts that support the mo-
tion. If the court elects to rely on legal arguments and
evidence not incorporated in, or submitted with, the sum-
mary judgment motion, the court is obligated to consider
the entire record "to ensure that the record reveals no
issue of material fact." Id. Because the district court
elected to venture beyond the parameters of the defen-
dants' summary judgment papers to dispose of some of
Nabozny's claims, the entire record was before the dis-
trict court regarding those claims, including "the plead-
ings, depositions, answers to interrogatories, and admis-
sions on file, [and] affidavits . . . ." Fed.R.Civ.P. 56(c).
Therefore, Nabozny is entitled to rely on the entire record
on appeal./3 With the scope of the record delineated, we
turn to a discussion of the facts. We review summary
judgment awards de novo, considering the record in the
light most favorable to the non-movant. Roger v. Yellow
Freight Systems, Inc., 21 F.3d 146, 148-49 (7th Cir. 1994).
Therefore, the facts are presented in the light most favor-
able to Nabozny.
II.
From his birth in 1975, Nabozny lived in Ashland, Wis-
consin. Throughout his childhood, adolescence, and teen-
aged years he attended schools owned and operated by
the Ashland Public School District. In elementary school,
Nabozny proved to be a good student and enjoyed a posi-
tive educational experience.
When Nabozny graduated to the Ashland Middle School
in 1988, his life changed. Around the time that Nabozny
entered the seventh grade, Nabozny realized that he is
gay. Many of Nabozny's fellow classmates soon realized
it too. Nabozny decided not to "closet" his sexuality, and
considerable harassment from his fellow students ensued.
Nabozny's classmates regularly referred to him as "fag-
got," and subjected him to various forms of physical
abuse, including striking and spitting on him. Nabozny spoke
to the school's guidance counselor, Ms. Peterson, about
the abuse, informing Peterson that he is gay. Peterson
took action, ordering the offending students to stop the
harassment and placing two of them in detention. However,
the students' abusive behavior toward Nabozny stopped
only briefly. Meanwhile, Peterson was replaced as guid-
ance counselor by Mr. Nowakowski. Nabozny similarly in-
formed Nowakowski that he is gay, and asked for protec-
tion from the student harassment. Nowakowski, in turn,
referred the matter to school Principal Mary Podlesny;
Podlesny was responsible for school discipline.
Just before the 1988 Winter holiday, Nabozny met with
Nowakowski and Podlesny to discuss the harassment.
During the meeting, Nabozny explained the nature of the
harassment and again revealed his homosexuality. Pod-
lesny promised to protect Nabozny, but took no action.
Following the holiday season, student harassment of Na-
bozny worsened, especially at the hands of students Jason
Welty and Roy Grande. Nabozny complained to Nowakow-
ski, and school administrators spoke to the students. The
harassment, however, only intensified. A short time later,
in a science classroom, Welty grabbed Nabozny and pushed
him to the floor. Welty and Grande held Nabozny down
and performed a mock rape on Nabozny, exclaiming that
Nabozny should enjoy it. The boys carried out the mock
rape as twenty other students looked on and laughed.
Nabozny escaped and fled to Podlesny's office. Podlesny's
alleged response is somewhat astonishing; she said that
"boys will be boys" and told Nabozny that if he was "go-
ing to be so openly gay," he should "expect" such be-
havior from his fellow students. In the wake of Podlesny's
comments, Nabozny ran home. The next day Nabozny was
forced to speak with a counselor, not because he was sub-
jected to a mock rape in a classroom, but because he left
the school without obtaining the proper permission. No
action was taken against the students involved. Nabozny
was forced to return to his regular schedule. Understand-
ably, Nabozny was "petrified" to attend school; he was
subjected to abuse throughout the duration of the school
year.
The situation hardly improved when Nabozny entered
the eighth grade. Shortly after the school year began, sev-
eral boys attacked Nabozny in a school bathroom, hitting
him and pushing his books from his hands. This time
Nabozny's parents met with Podlesny and the alleged
perpetrators. The offending boys denied that the incident
occurred, and no action was taken. Podlesny told both
Nabozny and his parents that Nabozny should expect such
incidents because he is "openly" gay. Several similar
meetings between Nabozny's parents and Podlesny followed
subsequent incidents involving Nabozny. Each time perpe-
trators were identified to Podlesny. Each time Podlesny
pledged to take action. And, each time nothing was done.
Toward the end of the school year, the harassment against
Nabozny intensified to the point that a district attorney
purportedly advised Nabozny to take time off from school.
Nabozny took one and a half weeks off from school. When
he returned, the harassment resumed, driving Nabozny
to attempt suicide. After a stint in a hospital, Nabozny
finished his eighth grade year in a Catholic school.
The Catholic school attended by Nabozny did not offer
classes beyond the eighth grade. Therefore, to attend the
ninth grade, Nabozny enrolled in Ashland High School.
Almost immediately Nabozny's fellow students sang an
all too familiar tune. Early in the year, while Nabozny
was using a urinal in the restroom, Nabozny was as-
saulted. Student Stephen Huntley struck Nabozny in the
back of the knee, forcing him to fall into the urinal. Roy
Grande then urinated on Nabozny. Nabozny immediately
reported the incident to the principal's office. Nabozny
recounted the incident to the office secretary, who in turn
relayed the story to Principal William Davis. Davis or-
dered Nabozny to go home and change clothes. Nabozny's
parents scheduled a meeting with Davis and Assistant
Principal Thomas Blauert. At the meeting, the parties dis-
cussed numerous instances of harassment against Nabozny,
including the restroom incident.
Rather than taking action against the perpetrators,
Davis and Blauert referred Nabozny to Mr. Reeder, a
school guidance counselor. Reeder was supposed to change
Nabozny's schedule so as to minimize Nabozny's exposure
to the offending students. Eventually the school placed
Nabozny in a special education class; Stephen Huntley and
Roy Grande were special education students. Nabozny's
parents continued to insist that the school take action,
repeatedly meeting with Davis and Blauert among others.
Nabozny's parents' efforts were futile; no action was
taken. In the middle of his ninth grade year, Nabozny
again attempted suicide. Following another hospital stay
and a period living with relatives, Nabozny ran away to
Minneapolis. His parents convinced him to return to Ash-
land by promising that Nabozny would not have to attend
Ashland High. Because Nabozny's parents were unable
to afford private schooling, however, the Department of
Social Services ordered Nabozny to return to Ashland
High.
In tenth grade, Nabozny fared no better. Nabozny's
parents moved, forcing Nabozny to rely on the school bus
to take him to school. Students on the bus regularly used
epithets, such as "fag" and "queer," to refer to Nabozny.
Some students even pelted Nabozny with dangerous objects such as
steel nuts and bolts. When Nabozny's parents
complained to the school, school officials changed Nabozny's
assigned seat and moved him to the front of the bus. The
harassment continued. Ms. Hanson, a school guidance coun-
selor, lobbied the school's administration to take more ag-
gressive action to no avail. The 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 he 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. Nabozny reported the
incident to Hanson, who referred him to the school's
"police liaison" Dan Crawford. Nabozny told Crawford
that he wanted to press charges, but Crawford dissuaded
him. Crawford promised to speak to the offending boys
instead. Meanwhile, at Crawford's behest, Nabozny re-
ported the incident to Blauert. Blauert, the school official
supposedly in charge of disciplining, laughed and told
Nabozny that Nabozny deserved such treatment because
he is gay. Weeks later Nabozny collapsed from internal
bleeding that resulted from Huntley's beating. Nabozny's
parents and counselor Hanson repeatedly urged Davis and
Blauert to take action to protect Nabozny. Each time ag-
gressive action was promised. And, each time nothing was
done.
Finally, in his eleventh grade year, Nabozny withdrew
from Ashland High School. Hanson told Nabozny and his
parents that school administrators were unwilling to help
him and that he should seek educational opportunities
elsewhere. Nabozny left Ashland and moved to Minne-
apolis where he was diagnosed with Post Traumatic Stress
Disorder. In addition to seeking medical help, Nabozny
sought legal advice.
On February 6, 1995, Nabozny filed the instant suit pur-
suant to 42 U.S.C. sec. 1983 against Mary Podlesny, William
Davis, Thomas Blauert, Steven Kelly, and the District al-
leging, among other things, that the defendants violated
his Fourteenth Amendment rights to equal protection and
due process. By an agreement between the parties, Steven
Kelly was dropped from the suit./4 The remaining defen-
dants moved for summary judgment.
The district court ruled in favor of the defendants. The
court dispensed with Nabozny's gender equal protection
claim, holding that Nabozny failed to produce evidence
to establish that the defendants discriminated against him
based on his gender. The court did not specify its basis
for deciding Nabozny's sexual orientation equal protection
claim. It appears from the order, however, that the court
intended the reasoning that it applied to Nabozny's gender
claim to apply to the sexual orientation claim as well.
Regarding Nabozny's due process claims, the court con-
cluded that Nabozny failed to produce evidence to estab-
lish that the defendants either created or exacerbated the
risk of harm to Nabozny posed by other students. The
court also concluded that Nabozny could not prevail on
his claim that the defendants' policies encouraged a
climate in which Nabozny suffered harm because none of
Nabozny's assailants were state actors. In the alternative,
the court granted qualified immunity to all of the defen-
dants against all of Nabozny's claims. Nabozny now brings
this timely appeal. We have jurisdiction pursuant to 28
U.S.C. sec. 1291.
III.
We will begin our analysis by considering Nabozny's
equal protection claims, reserving Nabozny's due process
claims for subsequent treatment in the opinion. Wisconsin
has elected to protect the students in its schools from dis-
crimination. Wisconsin statute section 118.13(1), regulating
general school operations, provides that:
No person may be denied . . . participation in, be
denied the benefits of or be discriminated against in
any curricular, extracurricular, pupil services, recrea-
tional or other program or activity because of the
person's sex, race, religion, national origin, ancestry,
creed, pregnancy, marital or parental status, sexual
orientation or physical, mental, emotional or learn-
ing disability.
Since at least 1988, in compliance with the state statue,
the Ashland Public School District has had a policy of pro-
hibiting discrimination against students on the basis of
gender or sexual orientation. The District's policy and
practice includes protecting students from student-on-
student sexual harassment and battery. Nabozny main-
tains that the defendants denied him the equal protec-
tion of the law by denying him the protection extended
to other students, based on his gender and sexual orien-
tation.
The Equal Protection Clause grants to all Americans
"the right to be free from invidious discrimination in stat-
utory classifications and other governmental activity."
Harris v. McCrae, 448 U.S. 297, 322 (1980). When a state
actor turns a blind eye to the Clause's command, aggrieved
parties such as Nabozny can seek relief pursuant to 42
U.S.C. sec. 1983. Cf. Muckway v. Craft, 789 F.2d 517, 521
(7th Cir. 1986) (noting that a sec. 1983 claim is a tort action,
requiring proof of duty, breach, causation, and damages).
In order to establish liability under sec. 1983, Nabozny must
show that the defendants acted with a nefarious discrimi-
natory purpose, Personnel Adm'r of Massachusetts v.
Feeney, 442 U.S. 256, 279 (1979), and discriminated against
him based on his membership in a definable class. Albright
v. Oliver, 975 F.2d 343, 348 (7th Cir. 1992), aff'd, 510 U.S.
266 (1994); Falls v. Town of Dyer, 875 F.2d 146, 148 (7th
Cir. 1989). As we explained in Shango v. Jurich, 681 F.2d
1091 (7th Cir. 1982):
The gravamen of equal protection lies not in the fact
of deprivation of a right but in the invidious classifica-
tion of persons aggrieved by the state's action. A
plaintiff must demonstrate intentional or purposeful
discrimination to show an equal protection violation.
Discriminatory purpose, however, implies more than
intent as volition or intent as awareness of conse-
quences. It implies that a decisionmaker singled out
a particular group for disparate treatment and selected
his course of action at least in part for the purpose of
causing its adverse effects on the identifiable group.
Id. at 1104 (citations and internal quotations omitted). A
showing that the defendants were negligent will not suf-
fice. Nabozny must show that the defendants acted either
intentionally or with deliberate indifference. Archie v. City
of Racine, 847 F.2d 1211, 1219 (7th Cir. 1988), cert. denied,
489 U.S. 1065 (1989); Jackson v. City of Joliet, 715 F.2d
1200, 1203 (7th Cir. 1983), cert. denied, 465 U.S. 1049
(1984); Shango, 681 F.2d at 1104; Cf. Muckway, 789 F.2d
at 522 (holding that a violation of a state law does not
establish an equal protection violation absent proof that
the defendant intentionally discriminated against other-
wise similarly situated persons). To escape liability, the
defendants either must prove that they did not discrimi-
nate against Nabozny, or at a bare minimum, the defen-
dants' discriminatory conduct must satisfy one of two well-
established standards of review: heightened scrutiny in
the case of gender discrimination, or rational basis in the
case of sexual orientation.
The district court found that Nabozny had proffered no
evidence to support his equal protection claims. In the
alternative, the court granted to the defendants qualified
immunity. Considering the facts in the light most favor-
able to Nabozny, we respectfully disagree with the district
court's conclusions./5
A. Gender and Equal Protection.
The district court disposed of Nabozny's equal protection
claims in two brief paragraphs. Regarding the merits of
Nabozny's gender claim, the court concluded that "[t]here
is absolutely nothing in the record to indicate that plain-
tiff was treated differently because of his gender." The
district court's conclusion affords two interpretations: 1)
there is no evidence that the defendants treated Nabozny
differently from other students; or, 2) there is no evidence
that the discriminatory treatment was based on Nabozny's
gender. We will examine each in turn.
The record viewed in the light most favorable to Naboz-
ny, combined with the defendants' own admissions, sug-
gests that Nabozny was treated differently from other
students. The defendants stipulate that they had a com-
mendable record of enforcing their anti-harassment poli-
cies. Yet Nabozny has presented evidence that his class-
mates harassed and battered him for years and that school
administrators failed to enforce their anti-harassment
policies, despite his repeated pleas for them to do so. If
the defendants otherwise enforced their anti-harassment
policies, as they contend, then Nabozny's evidence strong-
ly suggests that they made an exception to their normal
practice in Nabozny's case.
Therefore, the question becomes whether Nabozny can
show that he received different treatment because of his
gender. Nabozny's evidence regarding the defendants'
punishment of male-on-female battery and harassment is
not overwhelming. Nabozny contends that a male student
that struck his girlfriend was immediately expelled, that
males were reprimanded for striking girls, and that when
pregnant girls were called "slut" or "whore," the school
took action. Nabozny's evidence does not include specific
facts, such as the names and dates of the individuals in-
volved. Nabozny does allege, however, that when he was
subjected to a mock rape Podlesny responded by saying
"boys will be boys," apparently dismissing the incident
because both the perpetrators and the victim were males.
We find it impossible to believe that a female lodging a
similar complaint would have received the same response.
More important, the defendants do not deny that they
aggressively punished male-on-female battery and harass-
ment. The defendants argue that they investigated and
punished all complaints of battery and harassment, regard-
less of the victim's gender. According to the defendants,
contrary to the evidence presented by Nabozny, they ag-
gressively pursued each of Nabozny's complaints and
punished the alleged perpetrators whenever possible. Like
Nabozny, the defendants presented evidence to support
their claim. Whether to believe the defendants or Nabozny
is, of course, a question of credibility for the fact-finder.
In the context of considering the defendants' summary
judgment motion, we must assume that Nabozny's version
is the credible one. If Nabozny's evidence is considered
credible, the record taken in conjunction with the defendants'
admissions demonstrates that the defendants treated
male and female victims differently.
The defendants also argue that there is no evidence that
they either intentionally discriminated against Nabozny,
or were deliberately indifferent to his complaints. The
defendants concede that they had a policy and practice
of punishing perpetrators of battery and harassment. It
is well settled law that departures from established prac-
tices may evince discriminatory intent. Village of Arling-
ton Heights v. Metropolitan Housing Dev. Corp., 429 U.S.
252, 267 (1977). Moreover, Nabozny introduced evidence
to suggest that the defendants literally laughed at Naboz-
ny's pleas for help. The defendants' argument, considered
against Nabozny's evidence, is simply indefensible.
Our inquiry into Nabozny's gender equal protection
claim does not end here, because the district court granted
to the defendants qualified immunity. The District itself
clearly is not entitled to qualified immunity. See Owen
v. City of Independence, Mo., 445 U.S. 622, 650-51 (1980)
(denying to municipalities qualified immunity based on
good faith constitutional violations). Therefore, we need
only consider whether the individual defendants are im-
mune from suit.
In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Su-
preme Court held that "government officials performing
discretionary functions generally are shielded from liability
for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of
which a reasonable person would have known." Id. at 818.
If the law was not "clearly established," no liability should
result because "an official could not reasonably be ex-
pected to anticipate subsequent legal developments, nor
could be said to 'know' that the law forbade conduct not
previously identified as unlawful." Id. Thus, the critical
questions in this case are whether the law "clearly estab-
lishes" the basis for Nabozny's claim, and whether the
law was so established in 1988 when Nabozny entered
middle school. Sherman v. Four County Counseling Ctr.,
987 F.2d 397, 401 (7th Cir. 1993).
The Fourteenth Amendment provides that a State shall
not "deny to any person within its jurisdiction the equal
protection of the laws." In 1971, the Supreme Court inter-
preted the Equal Protection Clause to prevent arbitrary
gender-based discrimination. See Reed v. Reed, 404 U.S.
71, 76 (1971) ("To give a mandatory preference to mem-
bers of either sex over members of the other . . . is to
make the very kind of arbitrary legislative choice for-
bidden by the Equal Protection Clause . . . ."). A few years
later, in Weinberger v. Wiesenfeld, 420 U.S. 636 (1975),
the Court held that discrimination based on "gender-based
generalization[s]" in society runs afoul of the Equal Pro-
tection Clause. Id. at 645.
In Mississippi University for Women v. Hogan, 458
U.S. 718 (1982), building on its earlier precedents, the
Court went further in requiring equal treatment regard-
less of gender. In Hogan, the Court struck down a state
statute that prevented males from enrolling in a state nur-
sing school as violating the Equal Protection Clause. Id. at
727. Rejecting Mississippi's argument that gender-biased
enrollment criteria were necessary to compensate for prior
discrimination, the Court held that "if the statutory ob-
jective is to exclude or 'protect' members of one gender
because they are presumed to suffer from an inherent
handicap or to be innately inferior, the objective itself is
illegitimate." Id. at 725. Hogan made clear, in 1982, that
state-sponsored educational institutions may not discrimi-
nate in their protection of men and women based on a
stereotype of feminine weakness or inferiority. It is now
well settled that to survive constitutional scrutiny, gender
based discrimination must be substantially related to an
important governmental objective. See Bohen v. City of
East Chicago, Ind., 799 F.2d 1180, 1185 (7th Cir. 1986)./6
Nonetheless, the defendants ask us to affirm the grant
of qualified immunity because "there was no clear duty
under the equal protection clause for the individual defen-
dants to enforce every student complaint of harassment
by other students the same way." The defendants are cor-
rect in that the Equal Protection Clause does not require
the government to give everyone identical treatment.
Nothing we say today suggests anything to the contrary.
The Equal Protection Clause does, however, require the
state to treat each person with equal regard, as having
equal worth, regardless of his or her status. The defen-
dants' argument fails because they frame their inquiry too
narrowly. The question is not whether they are required
to treat every harassment complaint the same way; as
we have noted, they are not. The question is whether
they are required to give male and female students equiv-
alent levels of protection; they are, absent an important
governmental objective, and the law clearly said so prior
to Nabozny's years in middle school./7
The defendants bemoan the fact that there is no prior
case directly on point with facts identical to this case.
Under the doctrine of qualified immunity, liability is not
predicated upon the existence of a prior case that is di-
rectly on point. See McDonald v. Haskins, 966 F.2d 292,
293 (7th Cir. 1992). The question is whether a reasonable
state actor would have known that his actions, viewed in
the light of the law at the time, were unlawful. Id. at
294. We believe that reasonable persons standing in the
defendants' shoes at the time would have reached just
such a conclusion./8
B. Sexual Orientation and Equal Protection.
On the face of the summary judgment order, the fate
of Nabozny's sexual orientation equal protection claim is
unclear. In the order the district court never specifically
discussed Nabozny's sexual orientation claim. There is lit-
tle doubt, however, that the district court intended for
its order to dispose of Nabozny's suit in its entirety. In
the interest of judicial economy, rather than remanding
the claim back to the district court, we will assume that
the court's disposition of Nabozny's sexual orientation
claim was synonymous with, and on the same grounds as,
the court's disposition of Nabozny's gender claim./9
First we must consider whether Nabozny proffered a
sufficient evidentiary basis to support his claim. As we
noted above, Nabozny's evidence, combined with the de-
fendants' admissions, demonstrates that Nabozny was
treated differently. What is more, Nabozny introduced suf-
ficient evidence to show that the discriminatory treatment
was motivated by the defendants' disapproval of Nabozny's
sexual orientation, including statements by the defendants
that Nabozny should expect to be harassed because he
is gay.
Next we must consider whether the defendants are en-
titled to qualified immunity. In other words, we must
determine whether reasonable persons in the defendants'
positions would have known that discrimination against
Nabozny based on his sexual orientation, viewed in the
light of the law at the time, was unlawful.
Our discussion of equal protection analysis thus far has
revealed a well established principle: the Constitution pro-
hibits intentional invidious discrimination between other-
wise similarly situated persons based on one's member-
ship in a definable minority, absent at least a rational
basis for the discrimination. There can be little doubt that
homosexuals are an identifiable minority/10 subjected to
discrimination in our society. Given the legislation across
the country both positing and prohibiting homosexual
rights, that proposition was as self-evident in 1988 as it
is today. In addition, the Wisconsin statute expressly pro-
hibits discrimination on the basis of sexual orientation. Ob-
viously that language was included because the Wisconsin
legislature both recognized that homosexuals are dis-
criminated against, and sought to prohibit such discrimina-
tion in Wisconsin schools. The defendants stipulate that
they knew about the Wisconsin law, and enforced it to
protect homosexuals. Therefore, it appears that the defen-
dants concede that they knew that homosexuals are a de-
finable minority and treated them as such./11
In this case we need not consider whether homosexuals
are a suspect or quasi-suspect class, which would subject
the defendants' conduct to either strict or heightened
scrutiny. Our court has already ruled that, in the context
of the military, discrimination on the basis of sexual orien-
tation is subject to rational basis review. See Ben-Shalom
v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989), cert. denied,
494 U.S. 1004 (1989). The rational basis standard is suffi-
cient for our purposes herein.
Under rational basis review there is no constitutional
violation if "there is any reasonably conceivable state of
facts" that would provide a rational basis for the govern-
ment's conduct. FCC v. Beach Communications, Inc., 113
S.Ct. 2096, 2101 (1993). We are unable to garner any ra-
tional basis for permitting one student to assault another
based on the victim's sexual orientation, and the defen-
dants do not offer us one. Like Nabozny's gender claim,
the defendants argue that they did not discriminate against
Nabozny.
Absent any rational basis for their alleged discrimina-
tion, the defendants are left to argue that the principle
that the Constitution prohibits discrimination between
similarly situated persons based on membership in a de-
lineable class was somehow unclear back in 1988. We find
that suggestion unacceptable. As early as 1886 the Su-
preme Court held that if the law "is applied and admin-
istered by public authority with an evil eye and an un-
equal hand, so as practically to make unjust and illegal
discriminations between persons in similar circumstances,
material to their rights, the denial of equal justice is still
within the prohibition of the Constitution." Yick Wo v.
Hopkins, 118 U.S. 356, 373-74 (1886). Further, almost
every case that we have cited thus far was decided prior
to the events giving rise to this litigation.
Our discussion of qualified immunity cannot end without
mentioning one case in the area of "homosexual rights"
commonly cited during the period in question: Bowers v.
Hardwick, 478 U.S. 186 (1986). In Bowers, the Supreme
Court ruled that state sodomy statutes that prohibit
sodomy performed in private between two consenting adults
do not run afoul of an individual's Fourteenth Amendment
right to substantive due process. Id. at 191, 193-96. We
will address Nabozny's due process arguments below. How-
ever, reliance on Bowers by the defendants in this case
is misplaced. Bowers addressed the criminalization of
sodomy. The defendants make no mention of sodomy as a
motive for their discrimination. To the contrary, the defen-
dants offer us no rational basis for their alleged conduct.
The defendants certainly cannot rely on Bowers's rational
basis analysis to establish qualified immunity when they
do not assert a rational basis for their alleged conduct,
and expressly maintain that they did not discriminate on
the basis of sexual orientation./12
Therefore, although it presents a closer question than
does Nabozny's gender claim, we hold that reasonable per-
sons in the defendants' positions in 1988 would have con-
cluded that discrimination against Nabozny based on his
sexual orientation was unconstitutional.
IV.
Now we turn to Nabozny's due process arguments. We
believe that in order to clarify the nature of Nabozny's
due process theories, it is necessary to specify what
Nabozny does not argue. However untenable it may be
to suggest that under the Fourteenth Amendment a state
can force a student to attend a school when school officials
know that the student will be placed at risk of bodily
harm, our court has concluded that local school adminis-
trations have no affirmative substantive due process duty
to protect students. J.O. v. Alton Community Unit School
Dist. 11, 909 F.2d 267, 272-73 (7th Cir. 1990). In J.O. v.
Alton Community Unit School District 11, we relied on
the Supreme Court's opinion in DeShaney v. Winnebago
County Department of Social Services to conclude that
school administrators do not have a "special relationship"
with students. Id. at 272. Absent a "special relationship,"
a state actor has no duty to protect a potential victim.
Id. at 272-73; see DeShaney, 489 U.S. at 200 ("The affirm-
ative duty to protect arises not from the State's knowl-
edge of the individual's predicament or from its expres-
sions of intent to help him, but from the limitation which
it has imposed on his freedom to act on his own behalf.").
Nabozny has expressly stated that he does not challenge
our holding in Alton Community, thereby forfeiting his
right to do so. (Appellate Brief at 41 n.13). A party's for-
feiture of a legal argument prevents us from considering
it because the argument is not before the court. United
States v. Hubbard, 61 F.3d 1261, 1273 (7th Cir. 1995), cert.
denied, 116 S.Ct. 1268 (1996); John Doe v. United States,
51 F.3d 693, 699 (7th Cir. 1995); United States v. Jones,
34 F.3d 495, 499 (7th Cir. 1994); Wilson v. Giesen, 956
F.2d 738, 741 (7th Cir. 1992); United States v. Berkowitz,
927 F.2d 1376, 1391 (7th Cir.), cert. denied, 502 U.S. 845
(1991). Having clarified Nabozny's forfeiture, we turn to
the arguments that were raised by Nabozny./13
Nabozny argues that the defendants should be liable be-
cause they enhanced his risk of harm, and because their
policies encouraged a climate in which he suffered harm.
We will consider each theory in turn. First, Nabozny argues
that by failing to punish his assailants the defendants
exacerbated the risk that he would be harmed, or even
encouraged the students to harm him. Nabozny relies on
our opinion in Reed v. Gardner, 986 F.2d 1122 (7th Cir.),
cert. denied, 114 S.Ct. 389 (1993). In Reed, we considered
a case in which police officers arrested the driver of an
automobile, but left an intoxicated passenger on the side
of the road with the keys to the car. Id. at 1124. After
the police left, the intoxicated passenger drove the car
onto the road and caused a serious accident. Id. The vic-
tims of the accident sued the police officers pursuant to
sec. 1983 for leaving the intoxicated passenger on the side
of the road, arguing that the officers' conduct deprived
the victims of their Fourteenth Amendment right to due
process. Id. at 1124-25. We reversed a lower court's
dismissal of the complaint, ruling that state actors have
a duty to care for citizens if the state actors' conduct
"creates, or substantially contributes to the creation of,
a danger or renders citizens more vulnerable to a danger
than they otherwise would have been." Id. at 1126. But
we noted that the plaintiffs would lose on summary judg-
ment if the defendants could show that the arrested driver
was also intoxicated: "[t]he reason is simple: without state
intervention, the same danger would exist." Id. at 1125.
We agree with Nabozny in principle that the defendants
could be liable under a due process theory if Nabozny
could show that the defendants created a risk of harm,
or exacerbated an existing one. After a thorough review
of the record, however, we must agree with the district
court that Nabozny's claim suffers from a paucity of evi-
dence. Nabozny has presented evidence to show that the
defendants failed to act, and that their failure to act was
intentional. But, as we noted, Alton Community held that
the defendants had no affirmative duty to act. The de-
fendants' failure to act left Nabozny in a position of dan-
ger, but nothing suggests that their failure to act placed
him in the danger, or increased the pre-existing threat
of harm. Nabozny has presented "wrenching" facts, but
there is insufficient evidence from which a reasonable fact-
finder could conclude that the defendants' conduct in-
creased the risk of harm to Nabozny beyond that which
he would have faced had the defendants taken no action.
See Reed, 986 F.2d at 1125.
Under Nabozny's second theory, he argues that the de-
fendants violated his right to due process by acting with
deliberate indifference in maintaining a policy or practice
of failing to punish his assailants, thereby encouraging a
harmful environment. Alton Community, 909 F.2d at 273;
Stoneking v. Bradford Area School Dist., 882 F.2d 720,
725 (3rd Cir. 1989), cert. denied, 493 U.S. 1044 (1990). The
district court rejected Nabozny's argument because the
harm he suffered was not perpetrated by school employees.
On appeal, Nabozny challenges the district court's reason-
ing, arguing that liability can result regardless whether
students or teachers inflicted the harm.
The district court relied on D.R. by L.R. v. Middle
Bucks Area Vocational Technical School, 972 F.2d 1364
(3rd Cir. 1992) (en banc), cert. denied, 506 U.S. 1079 (1993).
In Middle Bucks, the Third Circuit considered constitu-
tional claims brought against a school by two female
students for injuries the students suffered at the hands
of male students. Id. at 1365-66. The plaintiffs alleged,
among other things, that the school's policy of not punish-
ing the perpetrators violated their rights to due process.
Id. at 1376. The court of appeals concluded that because
the acts perpetrated against the student plaintiffs were
not perpetrated by a school employee, there was no state
action, and thus no sec. 1983 claim against the defendants.
Id. at 1376.
We prefer not to rest our holding on Middle Bucks. Al-
though Middle Bucks suggests that in the context of a
"state created danger" liability can result from an "inter-
mingling of state conduct with private violence," id. at
1375, language elsewhere in the opinion appears to fore-
close the possibility of liability in cases where state ac-
tors intentionally formulate policies or practices that en-
courage one private actor to injure another. Id. at 1376.
We see no need to go that far in this case. Even assum-
ing arguendo that a state actor can be liable for inten-
tionally adopting a policy that encourages one private
actor to harm another, Nabozny's claim fails.
Nabozny argues, and presents facts suggesting, that the
defendants had a policy or practice of ignoring his pleas
for help, and that as a result, he was repeatedly assaulted.
Nabozny's theory has one fatal flaw: it rests on a failure
to act. Under Alton Community the defendants had no
duty to act. Therefore, to hold them liable for adopting
a practice of failing to act would run directly counter to
Alton Community.
Conclusion.
We conclude that, based on the record as a whole, a
reasonable fact-finder could find that the District and de-
fendants Podlesny, Davis, and Blauert violated Nabozny's
Fourteenth Amendment right to equal protection by dis-
criminating against him based on his gender or sexual
orientation. Further, the law establishing the defendants'
liability was sufficiently clear to inform the defendants at
the time that their conduct was unconstitutional. Nabozny's
equal protection claims against the District, Podlesny,
Davis, and Blauert are reinstated in toto. We further con-
clude that Nabozny has failed to produce sufficient evi-
dence to permit a reasonable fact-finder to find that the
defendants violated Nabozny's Fourteenth Amendment
right to due process either by enhancing his risk of harm
or by encouraging a climate to flourish in which he suf-
fered harm. Our disposition of Nabozny's due process
claims renders the district court's award of qualified im-
munity as to those claims moot./14 The decision of the dis-
trict court is
AFFIRMED IN PART, REVERSED IN
PART, AND REMANDED.
FOOTNOTES
/1
Only Nabozny's constitutional claims are before this
court. We will limit our discussion to those claims.
/2
Nabozny's "Proposed Findings of Fact" generally con-
sisted of "agrees in entirety" or "disagrees in entirety,"
responding to the defendants' proposed findings of fact.
/3
Nabozny is clearly entitled to rely on the entire record
regarding his equal protection claims. The district court
granted summary judgment on Nabozny's gender equal
protection claim on a basis not proffered by the defen-
dants. The court did not discuss its basis for granting
summary judgment on Nabozny's sexual orientation equal
protection claim. We will assume that the court's reason-
ing was the same regarding Nabozny's gender and sex-
ual orientation claims. We need not decide whether Naboz-
ny is entitled to rely on the entire record regarding his
due process claims. As our opinion will make clear, even
if we assume arguendo that Nabozny can rely on the en-
tire record, he cannot prevail on his due process theories.
/4
Kelly was Superintendent of the Ashland Public School
District at the time that the suit was filed. He was not,
however, Superintendent at the time that the events at
issue occurred.
/5
Our normal practice is to first address determinations
of qualified immunity, then address the merits. In the in-
terest of clarity, we shall depart from that practice in this
case and address the issues in the order followed by the
district court below.
/6
On June 26, 1996, the Supreme Court decided United
States v. Virginia, 1996 WL 345786 (U.S.). In Virginia,
rather than employing more conventional heightened
scrutiny parlance, the Court held that to defend gender
based discrimination a state actor must demonstrate an
"exceedingly persuasive justification." Id. at *10. We ex-
press no opinion on whether the Court's ruling heightens
the level of scrutiny applied to gender discrimination in
this circuit.
/7
The defendants also argue that they were not required
to protect Nabozny, citing DeShaney v. Winnebago Coun-
ty Department of Social Services, 489 U.S. 189 (1989). In
DeShaney, the Supreme Court ruled that the Due Pro-
cess Clause confers "no affirmative right to governmen-
tal aid." Id. at 196. Relying on that principle the Court
concluded that, except for cases where the State is holding
a person in custody, "a State's failure to protect an indi-
vidual against private violence" does not violate the Due
Process Clause. Id. at 197. DeShaney was a due process
case. Nabozny based his suit, in part, on due process
theories which we will discuss later. But the Court's
reasoning in DeShaney is inapplicable to Nabozny's equal
protection arguments. As the Court noted in DeShaney,
"[t]he State may not, of course, selectively deny its pro-
tective services to certain disfavored minorities without
violating the Equal Protection Clause." Id. at 196 n.3.
/8
It is worth noting that we do not understand the defen-
dants to argue that their actions were motivated by an
important governmental objective. We are unable to
garner any important governmental objective that is fur-
thered by the alleged gender discrimination in this case,
and the defendants do not offer us one.
/9
The defendants allege that Nabozny waived his sex-
ual orientation claim by failing to argue it in his response
to the defendants' summary judgment motion. The defen-
dants' argument lacks merit. We have previously held that
even where the non-moving party fails to file a timely
response to a motion for summary judgment, the district
court must still review the uncontroverted facts and make
a finding that summary judgment is appropriate as a
matter of law. Glass, 2 F.3d at 739; Wienco, Inc. v.
Kathan Assoc., Inc., 965 F.2d 565, 568 (7th Cir. 1992).
Assuming arguendo that Nabozny failed to defend his sex-
ual orientation claim in the face of the defendants' sum-
mary judgment motion, the district court was not reliev-
ed of its obligation to consider the claim.
/10
The Sixth Circuit has ruled that:
[T]he reality remains that no law can successfully be
drafted that is calculated to penalize, or to benefit, or
to protect, an unidentifiable group or class of in-
dividuals whose identity is defined by subjective and
unapparent characteristics such as innate desires,
drives, and thoughts. Those persons having a homosex-
ual "orientation" simply do not, as such, comprise an
identifiable class. . . . Because homosexuals generally
are not identifiable "on sight" . . . they cannot con-
stitute a suspect class or a quasi-suspect class . . . .
Equality Foundation of Greater Cincinnati v. City of Cin-
cinnati, 54 F.3d 261, 267 (6th Cir. 1995). The Sixth Cir-
cuit's analysis appears to conflate the requirement that
discrimination be based on membership in a definable class
to trigger equal protection analysis, see Albright, 975 F.2d
at 348, Falls, 875 F.2d at 148, with the requirement that
the class have "obvious, immutable, or distinguishing
characteristics" to trigger heightened or strict scrutiny.
High Tech Gays v. Defense Indust. Sec. Clearance Office,
895 F.2d 563, 573 (9th Cir. 1990). To the extent that the
Sixth Circuit's position conflicts with our prior holdings,
we are bound by the precedent of this circuit. We ex-
press no opinion on whether sexual orientation is an "ob-
vious, immutable, or distinguishing" characteristic.
However, it does seem dubious to suggest that someone
would choose to be homosexual, absent some genetic
predisposition, given the considerable discrimination level-
ed against homosexuals.
/11
We do not mean to suggest that the constitutionality
of the defendants' conduct turns on the existence of the
Wisconsin statute. The fact that the conduct in question
is illegal under the statute neither adds to, nor subtracts
from, the conduct's constitutional permissibility. See
Muckway, 789 F.2d at 522-23 (discussing Snowden v.
Hughes, 321 U.S. 1 (1944)).
/12
Of course Bowers will soon be eclipsed in the area of
equal protection by the Supreme Court's holding in Romer
v. Evans, 116 S.Ct. 1620 (1996). Romer, which was decided
following the oral argument in this case, struck down on
equal protection grounds a Colorado constitutional amend-
ment that discriminated against homosexuals. Although
Romer bolsters our analysis in this case to some extent,
we do not rely on it. To do so would be especially inap-
propriate in the context of rejecting the defendants' quali-
fied immunity argument.
/13
The facts of this case are distinguishable from the facts
in Alton Community. In Alton Community, a student
who was molested by a teacher sued the school district
and various administrators for her injuries, alleging that
the defendants breached their duty to protect her. Alton
Community, 909 F.2d at 268. Nothing suggests that the
defendants in Alton Community were aware of the poten-
tial molestation, and failed to prevent it. There is evidence
to suggest that Nabozny informed school officials that he
was at risk, and that the officials took no action--for
years. Moreover, in some cases schools arguably serve as
temporary custodians of children, limiting parent's abili-
ty to care for children, or children's ability to care for
themselves. Many parents and students depend on schools
to provide students with food, shelter, discipline, guidance,
and medical care, in addition to an education, while the
students are on campus. In this case, it seems that Alton
High even fulfilled a police function by providing a "police
liaison" officer. Depending upon the state law, a student
may be compelled to attend school. In a small town the
state law requirement may be tantamount to a require-
ment that the student attend specific schools. The extent
of a school's control over a student also might vary with
the student's age; schools control kindergarten students
more than high school students. It may be, therefore, that
in some cases a school is in a custodial relationship with
its students. Because Nabozny has failed to argue that
Alton Community can be distinguished, these are issues
necessarily left for another day. We mention them here
only to make clear that they are not foreclosed to future
litigants by our opinion.
/14
The parties shall be responsible for their respective
costs.
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