Derek Hannemann v. Southern Door County School Di, et al
Filing
Filed opinion of the court by Judge Flaum. AFFIRMED. Joel M. Flaum, Circuit Judge; Ilana Diamond Rovner, Circuit Judge and Ruben Castillo*, District Court Judge. *The Honorable Ruben Castillo, District Judge for the United States District Court for the Northern District of Illnois, sitting by designation. [6381820-3] [6381820] [11-2529]
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In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2529
D EREK H ANNEMANN,
Plaintiff-Appellant,
v.
S OUTHERN D OOR C OUNTY S CHOOL D ISTRICT,
JOE INNIS, L OIS M AHAFFEY, AND S TEVE B OUSLEY,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 09-CV-01055—William C. Griesbach, Judge.
A RGUED JANUARY 20, 2012—D ECIDED M ARCH 15, 2012
Before
F LAUM and R OVNER,
C ASTILLO, District Judge.
Circuit
Judges,
and
F LAUM, Circuit Judge. Derek Hannemann filed a § 1983
action against Southern Door County School District,
The Honorable Ruben Castillo, District Judge for the
United States District Court for the Northern District of Illinois,
sitting by designation.
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Superintendent Joe Innis, Principal Lois Mahaffey, and
Assistant Principal Steve Bousley, seeking damages and
injunctive relief. Hannemann alleged that defendants
violated his rights under the Fourteenth Amendment’s
Due Process Clause based on his suspension and expulsion from Southern Door County High School. He
further alleged that defendants violated his procedural
due process rights and his right to intrastate travel by
banning him indefinitely from school property. The
district court granted defendants’ motion for summary
judgment as to all claims.
Hannemann only appeals the portion of the district court’s decision related to the ban. Although he
previously argued that the ban violates his liberty
interest as a student, he now argues that the ban violates
his liberty interest as a general member of the public,
conceding that he was no longer a Southern Door
student at the time the ban was imposed. We affirm
the district court’s grant of summary judgment and
hold that Hannemann, as a member of the public, does
not have a protected liberty interest in accessing school
grounds. Defendants thus had no obligation to provide
Hannemann with process in connection with its imposition of the ban from school grounds.
I. Background
Derek Hannemann was a ninth grade student at Southern Door County High School in Southern Door County
School District during the 2005–2006 school year. On
May 1, 2006, a student reported seeing Hannemann with
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a knife on the school bus three days earlier. Assistant
Principal Bousley questioned Hannemann about this
incident, prompting Hannemann to turn over his knife
and to explain that he was afraid of “getting jumped.”
The school district’s weapons policy forbids students
from knowingly or voluntarily possessing a weapon. If
a student brings a weapon to school, school officials
must confiscate the weapon, notify the student’s parents,
and hold an administrative hearing. The policy also
authorizes school officials to suspend the student for
up to fifteen days and to recommend expulsion to
the district administrator. School officials informed
Hannemann’s father, Rick Hannemann, that his son
had brought a knife to school. Bousley met with both of
them to discuss the incident and told them that
Hannemann was suspended.
The Board of Education of the Southern Door County
School District scheduled a hearing to determine
whether grounds existed for expulsion. Superintendent
Innis issued a Notice of Hearing to the Hannemanns on
May 11, 2006, and the hearing was held on May 22, 2006
with the Hannemanns in attendance. The Board of Education voted to expel Hannemann for engaging in conduct that endangered the property, health, or safety of
others. Although the expulsion order applied until he
turned twenty-one, the order allowed for early reinstatement for the 2006–2007 school year, conditioned upon
“no further incidents of gross misconduct described in
the student handbook.”
Hannemann took advantage of the conditional reinstatement option and returned to Southern Door County
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High School the following year. No further incidents
occurred until April 27, 2007, when Assistant Principal
Bousley learned that the statement, “Only one bullet left,
no one to kill but myself,” was written on Hannemann’s
backpack. Bousley met with Hannemann and his father. After they left the school, Hannemann returned
by himself and accused Bousley of taking his notebooks.
Then-Principal Mahaffey brought Hannemann into her
office to determine what the problem was. He was
visibly upset, clenching his fists and breathing heavily.
Based on his behavior, he received a discipline referral
for violating the school district’s policy against intimidation and harassment.
On May 1, 2007, another incident occurred. A teacher
brought Hannemann to the principal’s office for
grabbing another student by the collar in class and
saying, “I am going to kick your ass. Stop writing in my
locker.” The next day, Assistant Principal Bousley and
Principal Mahaffey met with Hannemann and his father. Bousley informed them that the expulsion order
was under review and that they would have an opportunity to be heard on this issue. On May 4, Innis, Bousley,
Mahaffey, Hannemann, his parents, and his attorney
met to discuss the situation and possible expulsion. A
few days later, Hannemann’s attorney mailed Innis
letters from Hannemann and his parents to demonstrate
their commitment to a joint solution.
On May 7, 2007, Hannemann was suspended for these
recent incidents as well as for a separate incident in which
Hannemann punched a student. That evening, the Board
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of Education discussed Hannemann’s recent behavior
in a closed meeting. Although the Board of Education
agreed that the administrators’ decision to revoke
his conditional reinstatement and to expel him was appropriate, they did not vote on this matter because
the decision rested solely with the administrators. A
letter dated May 11, 2007 informed the Hannemanns
that the school district had decided to enforce the permanent expulsion due to Hannemann’s violation of the
condition in the original expulsion order.
Hannemann’s attorney requested a hearing to contest
the revocation of the reinstatement. Superintendent Innis
and other administrators met with the Hannemanns on
May 17, but on June 5 the Hannemanns received written
notification that the permanent expulsion would remain
in effect. Hannemann enrolled in Fox Valley Lutheran
High School for the 2007–2008 school year, but he continued to appeal the expulsion decision.
In September 2007, Hannemann appealed his original
expulsion to the superintendent of the Wisconsin Department of Public Instruction. On November 5, the state
superintendent reversed Hannemann’s expulsion on the
ground that the May 11, 2006 notice of expulsion was
defective because it did not identify the time frame of
the alleged conduct.
Despite the reversal of his expulsion, Hannemann
decided not to return to Southern Door County High
School, in part because he had become accustomed to
his private school and in part because the school district
had indicated that it would appeal the state superin-
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tendent’s decision if Hannemann decided to return.
Though enrolled at Fox Valley Lutheran High School,
Derek continued to use Southern Door County High
School’s weight room and to drive onto school grounds
to pick up friends. On May 28, 2008, a teacher saw
Hannemann in the weight room and told him to leave.
Hannemann became agitated and confrontational,
used inappropriate language, and punched a locker.
School officials relied on the teacher’s account of the
incident and informed Hannemann by mail that he was
“no longer to enter upon the property of the Southern
Door County School district for any purpose effective
immediately.” The letter explained that any entry would
be considered a trespass. The Hannemanns were not
provided with notice or opportunity to be heard concerning this ban. Hannemann’s attorney sent a letter to
the school district’s attorney inquiring into the school
district’s authority to impose such a ban, but he received
no response. The Hannemanns did not follow up by
requesting a hearing or by inquiring how the ban could
be lifted. On June 4, 2008, Derek drove onto school property to pick up a friend. A police officer pulled him
over and issued a citation for trespassing.
Hannemann filed a complaint on November 10, 2009,
raising claims related to bullying, his suspension, his
expulsion, and his ban from school property. He challenged the ban on First Amendment, equal protection,
and due process grounds. On November 1, 2010,
Hannemann filed an amended complaint, adding due
process claims for the suspension and expulsion and
removing the bullying claim. He alleged that: (1) the
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May 3, 2007 1 five-day suspension deprived him of liberty or property without procedural due process; (2) the
expulsion order deprived him of liberty or property
without procedural due process; (3) the ban on entering school property without notice or a hearing deprived him, as a student, of procedural due process;
and (4) the ban on entering school property violated
his right to intrastate travel. Hannemann sued Southern
Door County School District, as well as Superintendent Innis, former Principal Mahaffey, and Assistant
Principal Bousley in their individual capacities.
The district court granted defendants’ motion for summary judgment, concluding that Hannemann was not
denied procedural due process with respect to his suspension, his expulsion, or the revocation of his conditional reinstatement. Regarding the ban, the district
court rejected Hannemann’s argument that he had
student status when he was banned from the premises.
1
The district court referred to this alternatively as the May 2006
suspension and the May 2007 suspension. According to the
facts alleged in Hannemann’s amended complaint, he was
suspended both on May 1, 2006 for fifteen days (following
the knife possession) and on May 3, 2007 for five days (following a series of altercations). It appears that Hannemann
alleged a violation only relating to the 2007 suspension but
that the district court considered whether due process was
provided in conjunction with the 2006 suspension. We need
not resolve this issue, however, because Hannemann only
appeals the district court’s decision about his ban from
school grounds.
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The court held that a school is permitted to indefinitely
ban a non-student from its property because members
of the public have no constitutional right to access
public schools. The court also held that the right to intrastate travel is not unlimited and does not provide a
right to access school property. Finally, the court held
that the individual defendants are entitled to qualified
immunity as an alternative basis for granting summary
judgment as to them because even if the court erred
by failing to find a constitutional violation, the law was
not clearly established.
On appeal, Hannemann only contests the district
court’s grant of summary judgment for his procedural
due process claim for equitable relief from the ban
from school property.
II. Discussion
We review de novo a district court’s grant of summary
judgment. Smeigh v. Johns Manville, Inc., 643 F.3d 554, 560
(7th Cir. 2011). Summary judgment is appropriate if “the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as
a matter of law.” FED. R. C IV. P. 56(a). However, “[t]he
mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported motion for summary judgment.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The
non-movant must go beyond the pleadings and “set forth
specific facts showing that there is a genuine issue for
trial.” Id. at 250. We construe all facts and draw all rea-
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sonable inferences in the light most favorable to the
non-moving party, which in this case is Hannemann.
Smeigh, 643 F.3d at 560. Nevertheless, “we are not
required to draw every conceivable inference from the
record. We need draw only reasonable ones.” Tyler v.
Runyon, 70 F.3d 458, 467 (7th Cir. 1995).
A. Whether the Ban from School Grounds Violates a
Liberty Interest Protected by the Due Process Clause
Hannemann contends that the school district violated
his right to procedural due process by banning him
from school property without notice and an opportunity
to be heard. Before the district court, Hannemann
argued that his status as a student entitled him to this
process. The district court rejected this argument,
finding it to be “undisputed that Derek was not a
student at Southern Door County High School when
the ban was instituted” because expulsion transforms
a person’s status from student to general member of the
public. Although the expulsion order had been vacated,
Hannemann had opted not to reenroll. Thus, when
the ban was enacted, Hannemann was not a student of
Southern Door County High School, but rather of Fox
Valley Lutheran High School. The district court framed
the issue as whether a school district can constitutionally ban a non-student from its property until
further notice without a hearing, and the court ruled
that the school district has this authority.
On appeal, Hannemann abandons his student-status
argument and instead argues that he was deprived of a
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protected interest as a general member of the public.
Hannemann is not consistent or precise in alleging
what protected interest has been violated by the ban.
He argues that a school in a small community serves
as more than a place of learning,2 that a ban from school
grounds is especially burdensome to parents, that other
members of the community enter school property, and
that a ban that labels a person as a danger to children
imposes a grievous loss.
When a plaintiff asserts a procedural due process
claim, we engage in a two-fold analysis. First, we must
determine whether the plaintiff was deprived of a protected interest, either in liberty or property. McMahon v.
Kindlarski, 512 F.3d 983, 987 (7th Cir. 2008). Second, if
the plaintiff has established a protected interest, we
must determine what type of process is due. Id. at
987-88. “Protected liberty interests ‘may arise from two
sources—the Due Process Clause itself and the laws of the
States.’ ” Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460
2
Hannemann alleges that, due to the small size of the community, Southern Door County schools serve not simply as educational institutions but also as the center of civic life. Hannemann
does not provide any legal or factual support for this assertion, and he conceded at oral argument that there is no evidence in the record of specific civic events that take place on
the school grounds. To the extent that Hannemann claims
that his right to access school grounds stems from the community’s small size, we find this claim to be unsupported
and therefore waived. See Long v. Teachers’ Retirement Sys. of
Ill., 585 F.3d 344, 349 (7th Cir. 2009).
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(1989) (quoting Hewitt v. Helms, 459 U.S. 460, 466 (1983)).
As the Supreme Court has stated, “the range of interests
protected by procedural due process is not infinite.” Bd.
of Regents of State Colleges v. Roth, 408 U.S. 564, 56970 (1972).
Before we can evaluate whether Hannemann has established a protected interest, we must decide whether to
construe the duration of the ban as definite (as the
school district argues), indefinite (as the district court
determined), or lifelong (as Hannemann argues). The
duration of the ban influences the severity of the
school district’s action and thus may influence our analysis as to whether the ban violates a protected interest.
It is undisputed that the letter from the school district’s
attorney informing Hannemann of the ban does not
state when the ban will be lifted. When asked at a deposition whether Hannemann would be permitted to
attend events that are open to the public after he turns
twenty-one, Superintendent Innis testified, “we certainly
would be open to revisiting it if a request was made,
you know, to attend activities or, you know, be on the
campus.”
The district court concluded that there was no
evidence that the district intended for the ban to be lifelong and that such an interpretation would not be reasonable. We agree with the district court’s analysis, and
we construe the ban as indefinite but not necessarily
permanent. Although Hannemann claims that the ban
is lifelong, he never asked school officials how long the
ban would last for or whether there was anything he
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could do to have it lifted. Similarly, Hannemann never
asked school officials to lift the ban and never promised
to refrain from the conduct that prompted the ban.
Further, Innis’s testimony suggests that school officials
are open to reconsideration. Yet we must reject defendants’ assertion that the ban was neither indefinite nor
unconditional, as defendants have not pointed to any
evidence of an end date for the ban or conditions
for Hannemann to meet for the ban to be lifted. We therefore conclude, as the district court did, that the ban
from school property was indefinite but not permanent.3
1.
Hannemann’s Ban from School Grounds Did Not
Deprive Him of a Protected Liberty Interest
Under the “Stigma Plus” Framework
Hannemann first claims that his ban from school
grounds deprived him of a protected liberty interest. A
plaintiff may prove a deprivation of a protected liberty
interest by showing damage to his “good name, reputation,
honor, or integrity.” Wisconsin v. Constantineau, 400 U.S.
433, 437 (1971). This “stigmatic harm,” however, “must
take concrete forms and extend beyond mere reputational
interests.” Omosegbon v. Wells, 335 F.3d 668, 675 (7th Cir.
2003) (citing Paul v. Davis, 424 U.S. 693, 711-12 (1976)); see
3
If school officials refuse to consider a request to lift the ban
and instead treat the ban as permanent, this conduct may
implicate Hannemann’s constitutionally protected rights;
however, the evidence presently before us does not implicate
those concerns.
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also McMahon, 512 F.3d at 988. This two-pronged framework is known as the “stigma plus” test. See Khan v.
Bland, 630 F.3d 519, 534 (7th Cir. 2010). The Supreme
Court, in Paul v. Davis, made clear that procedural safeguards come into play only when the “alteration of
legal status,” such as the governmental deprivation of a
securely held right, is “combined with the injury
resulting from the defamation.” 424 U.S. at 708-09. This
occurs when defamatory statements alter or eliminate
“a right or status previously recognized by state law.” Id.
at 711.
Hannemann urges us to evaluate his procedural due
process claim using the approach that we have
taken in employment cases involving protected liberty
interests. This framework requires the plaintiff to show
that he “was stigmatized by the employer’s actions,” that
the “stigmatizing information was publicly disclosed,”
and that “he suffered a tangible loss of other employment opportunities as a result of the public disclosure.”
Dupuy v. Samuels, 397 F.3d 493, 509-10 (7th Cir. 2005); see
also McMahon, 512 F.3d at 988. We have recognized this
approach as “helpful” in certain non-employment cases.
See Dupuy, 397 F.3d at 509-10.
Before considering the merits of Hannemann’s liberty
interest claim, we must address defendants’ claim that
Hannemann has waived his “stigma plus” argument by
failing to raise it before the district court. Hannemann
admits that he did not make this argument to the
district court but explains that he responded only to the
arguments raised by defendants in their motion for sum-
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mary judgment. Hannemann’s explanation is neither
factually nor legally accurate.
Defendants argued in their motion for summary judgment that the ban did not violate Hannemann’s procedural due process rights and that Hannemann failed
to point to a state law or rule that entitled him to access
school grounds. This argument called upon Hannemann
to explain why, contrary to defendants’ assertion, the
ban did violate his procedural due process rights. Yet
Hannemann did not argue to the district court, as he
does on appeal, that his protected interest stems from
harm to his reputation combined with an alteration of
legal status (i.e., the “stigma plus” test). Hannemann
exclusively argued that he had a constitutional right
stemming from his student status and insisted that he
was not a “mere member of the public.”
“It is a well-settled rule that a party opposing a summary judgment motion must inform the trial judge of
the reasons, legal or factual, why summary judgment
should not be entered. If it does not do so, and loses the
motion, it cannot raise such reasons on appeal.” Liberles
v. Cnty. of Cook, 709 F.2d 1122, 1126 (7th Cir. 1983); see
also Domka v. Portage Cnty., 523 F.3d 776, 783 (7th Cir.
2008). Although Hannemann contends that he raised
the stigma plus argument sufficiently to preserve it for
appeal, a party “waive[s] the ability to make a specific
argument for the first time on appeal when the party
failed to present that specific argument to the district
court, even though the issue may have been before the
district court in more general terms.” Fednav Int’l Ltd. v.
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Cont’l Ins. Co., 624 F.3d 834, 841 (7th Cir. 2010). Even
giving a generous reading to Hannemann’s arguments
before the district court, we are unable to detect any
argument based on a liberty interest in Hannemann’s
reputation or any liberty interest for general members
of the public. We therefore conclude that Hannemann
has waived his stigma plus argument because he raises
it on appeal for the first time.
Even if we declined to find this argument waived, the
argument would fail on its merits. Hannemann has not
identified any statements made by the school district
that would constitute defamatory statements if false. See
Brown v. City of Michigan City, 462 F.3d 720, 730 (7th Cir.
2006). Although he claims that the school district has
“affixe[d] a badge of infamy” to him, he does not allege
that the school district publicized the ban 4 or that he has
been harassed due to publication of the ban. See id.;
Omosegbon, 335 F.3d at 675. Thus, Hannemann has not
satisfied the “stigma” prong.
Hannemann has not satisfied the “plus” prong either
because he has not established that any defamatory
4
Hannemann alleged in his amended complaint that a flyer
was distributed to Southern Door County school personnel,
referencing the May 2008 “confrontation” in the weight
room and instructing personnel to contact the administration
or the police if Hannemann was spotted on school property.
Hannemann has never pointed to any defamatory statements
in the flyer or argued that its distribution had the effect of
depriving him of his liberty interest in his reputation.
Hannemann, in fact, makes no mention of the flyer on appeal.
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statements have caused an alteration in his legal status.
See Paul, 424 U.S. at 711; Brown, 462 F.3d at 730-32. We
have previously found this prong to be satisfied when
an employee’s reputation or integrity was called into
question in a manner that made it almost impossible
for the employee to find a new position in that field.
See Townsend v. Vallas, 256 F.3d 661, 669-70 (7th Cir. 2001).
The Supreme Court has also recognized a change in
legal status when a student was deprived of the right to
attend public school. See Paul, 424 U.S. at 710 (discussing
Goss v. Lopez, 419 U.S. 565 (1975)). Hannemann has not
established that any stigma resulting from the ban has
caused him to lose a right previously recognized by
state law.5 As the district court acknowledged, Southern
Door County School District allows the public to enter
school property for specific purposes while retaining the
authority to bar individual members of the public for
reasons specific to them. Hannemann does not contest
5
Hannemann makes two statements that could possibly give
rise to cognizable interests, but he fails to adequately support
these statements. He contends that Southern Door County
High School is a polling place, but he never establishes (or
even asserts) that the high school is his polling place, that
absentee voting is unavailable, or that school officials intend
to enforce the ban during an election. Hannemann also
contends that the ban prevents a parent from attending parentteacher conferences, concerts and sporting events, and even
graduation—but Hannemann is not presently and may never
become a parent of a Southern Door student. Thus, though
voting and parental interests may be stronger, Hannemann
has not established that he has been deprived of these interests.
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this finding, and he even urges us to grant summary
judgment in his favor on the ground that there are no
material facts in dispute. Because the school district
retains the discretion to bar members of the public
from school property, Hannemann is unable to establish the loss of a previously recognized right.
Case law also supports our holding that members of
the public do not have a constitutional right to access
school property. In Vukadinovich v. Board of School Trustees
of Michigan City Area Schools, a principal banned a former
teacher from a public school who had continued to
enter school grounds after being terminated. 978 F.2d
403, 407 (7th Cir. 1992). We determined that Vukadinovich
became a member of the public once discharged, and
we stated that “[m]embers of the public have no constitutional right of access to public schools.” Id. at 409.
Hannemann seeks to distinguish Vukadinovich as only
involving rights under the First Amendment, which
Hannemann no longer alleges. Even though we did not
analyze due process rights in Vukadinovich (due to defendants’ concession that Vukadinovich had a protected
property interest in his employment), we recognized, as
the baseline for our analysis, that the public has no constitutional right to access schools. The First Amendment
framework then required Vukadinovich to allege that a
governmental body or authority had transformed the
school into a public form, which he failed to do. The same
baseline determination—that the public has no constitutional right to access schools—applies to Hannemann’s
claim. The “stigma plus” due process framework requires
Hannemann to establish that defamatory statements
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caused him to lose a right recognized by state law, which
he has failed to do. Hannemann has at most alleged a
right to access school grounds stemming from a Southern
Door County School District policy, but this does not
suffice. See Paul, 424 U.S. at 711.
Cases from other circuits have similarly held that
members of the public do not possess a constitutionally
protected right to access school grounds. See, e.g., Lovern
v. Edwards, 190 F.3d 648, 655-56 (4th Cir. 1999) (affirming
the dismissal of a parent’s claim regarding his ban
from school property and stating that “[s]chool officials
have the authority to control students and school personnel on school property, and also have the authority and
responsibility for assuring that parents and third parties
conduct themselves appropriately while on school property”); Henley v. Octorara Area Sch. Dist., 701 F. Supp. 545,
551 (E.D. Pa. 1988) (“The right to come onto the school
property was not such a right as to require any sort of a
due process hearing before making the classification
that excluded [the non-student].”).6 Hannemann points
to Dunkel v. Elkins, 325 F. Supp. 1235, 1245 (D. Md. 1971),
6
Hannemann urges us to distinguish these cases as concerning
the broader right to access all school buildings at all times,
but we decline to do so. The holdings in these cases are not
limited to claims of unbounded access to schools. Moreover,
Hannemann does not clearly allege a narrower claim. The
conduct that prompted the ban was his presence in the
school’s weight room, and his briefing seeks access to school
property for wide-ranging purposes, including sporting
events, voting, concerts, and parent-teacher conferences.
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a case in which the court held that a public university
could not deprive a person of access to the campus
without a prior administrative hearing. We do not find
Dunkel’s reasoning to be persuasive as to Hannemann’s
claim. The district court in Dunkel did not provide
much support for the origin of the right to process and
appeared to rely primarily on the ease with which the
university could have provided a hearing. Moreover,
safety and administrative concerns are heightened in
the context of grade schools, and there is no indication
that Dunkel would have extended its right of access
from universities to grade schools.
2.
Hannemann’s Ban from School Grounds Did Not
Interfere with His Right to Intrastate Travel
Liberty interests may arise from the Due Process
Clause itself, see Thompson, 490 U.S. at 460. Hannemann
appears to claim that he has a liberty interest in
engaging in intrastate travel and that the ban from
school grounds violated this interest. The district court
rejected this argument, concluding that “[t]he right to
intrastate travel does not allow one to travel anywhere and everywhere within Wisconsin at his or her
pleasure.” We agree with the district court’s well-reasoned analysis, and we hold that Hannemann’s ban
from school property does not violate his right to
intrastate travel.
The Wisconsin Supreme Court has recognized the
right to travel as “fundamental among the liberties preserved by the Wisconsin Constitution.” Brandmiller v.
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Arreola, 544 N.W.2d 894, 899 (Wis. 1996). We have not
yet decided whether there is a federal fundamental right
to intrastate travel, see Schor v. City of Chicago, 576 F.3d
775, 780 (7th Cir. 2009), but there is no need to resolve
this question today because Hannemann has not established that the ban actually violates his right to
intrastate travel. Hannemann has not alleged that the
ban inhibits his ability to move from place to place
within Door County. He has not alleged that the only
way to get from one location to another is to traverse
school property, nor has he alleged that the ban
prevents him from accessing substantial portions of the
county. The absence of such allegations signals that
Hannemann’s claim is not properly characterized as an
infringement of his right to intrastate travel. He contends that the ban prevents him from entering school
grounds for various activities, but he never contends
that the ban inhibits his right to travel through parts of
the county to participate in such activities. See Doe v.
City of Lafayette, 377 F.3d 757, 771-72 (7th Cir. 2004)
(en banc) (holding that the city’s ban of a sex offender
from city parks did not violate his right to intrastate
travel since ban did not limit him “in moving from place
to place within his locality to socialize with friends
and family, to participate in gainful employment or to
go to the market to buy food and clothing”).
Hannemann relies on Johnson v. City of Cincinnati, 310
F.3d 484, 495 (6th Cir. 2002), in which the Sixth Circuit
concluded that expansive “drug exclusion zones” interfered with plaintiff’s “right to travel locally through
public spaces and roadways.” We have previously ques-
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tioned Johnson’s recognition of the right to intrastate
travel as fundamental, see Lafayette, 377 F.3d at 771 & n.12,
but we need not revisit that issue here because
Hannemann has not sufficiently established that the
ban limits his right to travel locally.
Even if we construe Hannemann’s intrastate travel
claim as arguing that he has the right to enter public
facilities and remain there, his claim fares no better. The
right to intrastate travel protects the right to move from
place to place, not the right to access certain public
places. See Williams v. Town of Greenburgh, 535 F.3d 71, 7576 (2d Cir. 2008) (“[I]t is clear that the right [to intrastate travel] protects movement between places and has
no bearing on access to a particular place.”). As the
Second Circuit has recognized, “it would distort the
right to free travel beyond recognition to construe it as
providing a substantive right to cross a particular parcel
of land, enter a chosen dwelling, or gain admittance to a
specific government building.” Id. at 76. Just as the right
to intrastate travel does not confer the right to access
to community centers and government office buildings,
see id., it also does not confer the right to access school
property.
Although we acknowledge that a three-Justice plurality
of the Supreme Court has expressed that “the freedom
to loiter for innocent purposes is part of the ‘liberty’
protected by the Due Process Clause of the Fourteenth
Amendment,” City of Chicago v. Morales, 527 U.S. 41, 53-54
(1999), we do not perceive this dicta as compelling our
recognition of a liberty interest in unfettered access to
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school grounds. See United States v. Lock, 466 F.3d 594
(7th Cir. 2006) (referring to the Morales statement as a
“controversial proposition”). But see Kennedy v. City of
Cincinnati, 595 F.3d 327, 330 (6th Cir. 2010) (relying on
Morales and recognizing a “constitutionally-protected
liberty interest not to be banned from all City recreational property without procedural due process”). The
Morales statement is situated not in the context of a
due process analysis but rather in the context of an
overbreadth analysis. Further, the only cases cited by the
plurality involve the freedom of movement, not the
freedom to loiter. Moreover, even if we recognized some
liberty interest in the right to loiter, it would not follow
that this right confers unfettered access to all public
places. In Doe v. City of Lafayette, we rejected the notion
that Morales signifies the Supreme Court’s mandate that
a right to loiter in all public places is a fundamental
liberty interest. 377 F.3d at 772. We determined that
the Morales statement “hardly includes all the contexts
of ‘public’ places—for example, parks, public schools,
jails, libraries, governmental administration buildings.” Id.
We are not prepared to recognize a right for members
of the public to loiter on school grounds based on the
broad language in Morales. Our reluctance to construe
Morales so broadly stems in part from the Supreme
Court’s own statements about the authority and the
responsibility of school officials to protect students and
control people on school property. See, e.g., New Jersey v.
T.L.O., 469 U.S. 325, 339 (1985) (recognizing the “substantial interest of teachers and administrators in maintaining discipline in the classroom and on school
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grounds”); Carey v. Brown, 447 U.S. 455, 470-71 (1980)
(stating that the Constitution does not leave state
officials powerless “to protect the public from boisterous
and threatening conduct that disturbs the tranquility of . . .
schools” (quoting Gregory v. Chicago, 394 U.S. 111,
118 (1969) (Black, J., concurring))); see also Vernonia Sch.
Dist. 47J v. Acton, 515 U.S. 646, 656 (1995) (“Fourth Amendment rights, no less than First and Fourteenth Amendment rights, are different in public schools than elsewhere . . . .”); Lovern, 190 F.3d at 655-56. We therefore
hold that Hannemann has not established that the ban
deprived him of a protected liberty interest, whether
stemming from the “stigma plus” framework or the
right to intrastate travel.
B. Qualified Immunity
The district court concluded that qualified immunity
provided an alternative basis for granting summary
judgment to individual defendants Innis, Mahaffey,
and Bousley. Hannemann does not challenge this conclusion as to damages, but he contends that qualified immunity does not bar declaratory and injunctive relief. He
seeks the opportunity to be heard if the school continues
to ban him from school property. Hannemann is correct;
the defense of qualified immunity does not protect defendants from an action for injunctive relief. See Moss v.
Martin, 614 F.3d 707, 712 (7th Cir. 2010); Denius v. Dunlap,
330 F.3d 919 (7th Cir. 2003). But even though qualified
immunity does not provide a complete defense to individual liability, see Canedy v. Boardman, 91 F.3d 30, 33
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(7th Cir. 1996), defendants all prevail on the merits
of this action. Hannemann has failed to establish that
defendants’ imposition of an indefinite ban from school
grounds deprived him of any constitutionally protected
interests.
III. Conclusion
For the foregoing reasons, we A FFIRM the judgment of
the district court.
3-15-12
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