Tommy R. Schroeder v. Hamilton School District

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.

*957■ From a historical standpoint the core violation of the equal protection clause is indeed the selective withdrawal of police protection from a disfavored group, as the term “equal protection of the laws” connotes. E.g., DeShaney v. Winnebago County Dept. of Social Services, 812 F.2d 298, 301 (7th Cir.1987), affirmed, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (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, 91 S.Ct. 1940, 29 L,Ed.2d 438 (1971); Hilton v. City of Wheeling, 209 F.3d 1005, 1007 (7th Cir.2000). And likewise a public school that decides not to protect black students from being harassed by other students, but to protect white students from such harassment, denies equal protection. Gant ex rel. Gant v. Wallingford Board of Education, 195 F.3d 134, 139-40 (2d Cir.1999). But Schroeder is not black. Blacks are one of the groups that the Supreme Court has decided deserve special protection against discrimination by public entities. (Women too — cases like Gant but concerning failure to protect women equally with men from sexual harassment are illustrated by Reese v. Jefferson School District No. 14J, 208 F.3d 736, 740 (9th Cir.2000). But Schroeder is no more a woman than he is a black. He is a white male.) Deliberate discrimination on racial grounds by a public body is unlawful unless a compelling case of public need is shown, unless, that is, in the lingo of the cases, the 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, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam); Albiero v. City of Kankakee, 246 F.3d 927, 932 (7th Cir.2001); Hilton v. City of Wheeling, supra, 209 F.3d at 1007; Shipp v. McMahon, 234 F.3d 907, 916 (5th Cir.2000)), has a right not to be victimized by an irrational withdrawal of state protection. But the word “irrational” is the key to determining the scope of this principle. Discrimination against 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, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996), attributed to a state constitutional provision that forbade municipalities to enact gay-rights ordinances; see also Stemler v. City of Florence, 126 F.3d 856, 874 (6th Cir.1997), or if, though devoid of animus, the discrimination simply bore no rational 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 *958been. 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, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985); United Air Lines, Inc. v. Civil Aeronautics Bd., 766 F.2d 1107, 1113 (7th Cir.1985). If race relations are a particularly sensitive area in a particular school, the school authorities are not irrational in deciding to devote more time and effort to defusing racial tensions than to preventing harassment of a homosexual (or overweight, or undersized, or nerdish, or homely) teacher.

It is true that the out-of-pocket costs of some additional measures that the defendants might have taken, for example adding to every memo warning against discrimination on grounds of race the words “or sexual orientation,” would have been slight. But such an addition would have had a negligible effect without amplification — except perhaps to dilute the warning against racial discrimination. The more amplification, moreover, the greater the dilution — which shows that the measure would not have been costless after all.

Second, when most of the abuse directed at a person is anonymous, the school authorities may be unable to prevent it without a 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 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 *959basis for permitting one student to assault another based on the victim’s sexual orientation, and the defendants do not offer us one.” Id. at 458. The rational-basis test is not demanding, but the school there managed to flunk it — and besides there was evidence that the school officials actually “laughed and told Nabozny that Na-bozny 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. 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.