## Facts

- Jamie S. Nabozny, a student in Ashland, Wisconsin public schools, alleged that he was repeatedly harassed and physically abused by other students because he is homosexual.
- Nabozny reported the harassment and assaults to school administrators and requested protection and discipline of the perpetrators.
- The school district maintained general policies for addressing student-on-student battery and sexual harassment, but officials allegedly failed to enforce those policies for Nabozny and, in some instances, mocked or dismissed his complaints.
- Nabozny alleged that school officials responded more seriously when non-gay students (including female students) reported comparable harassment, but refused to act when he was the victim.
- Nabozny sued school officials and the school district under 42 U.S.C. § 1983, asserting Fourteenth Amendment equal protection and substantive due process violations based on officials’ response to peer abuse.
- The district court granted summary judgment to all defendants on the constitutional claims, and Nabozny appealed.

## Issues

1. Whether school officials violated the Equal Protection Clause by intentionally treating Nabozny differently in enforcing anti-harassment protections because of his sex and/or sexual orientation.
2. Whether officials’ failure to protect Nabozny from peer violence, or alleged conduct increasing the risk of harm, violated substantive due process under the Fourteenth Amendment.
3. Whether the individual school officials were entitled to qualified immunity on the equal protection and due process claims at the summary-judgment stage.

## Decision

- The Seventh Circuit affirmed in part, reversed in part, and remanded.
- The court reversed summary judgment for the individual officials on Nabozny’s equal protection claims, holding that the record could support a finding of intentional discriminatory nonenforcement of protective policies.
- The court affirmed summary judgment on the substantive due process claims, concluding that the Constitution generally does not impose an affirmative duty on public schools to protect students from private violence by other students under the governing precedent.
- The court held that qualified immunity did not bar the equal protection claims at summary judgment because the alleged selective denial of protection based on Nabozny being gay could violate clearly established equal protection principles.

## Legal Principles

- The Equal Protection Clause prohibits intentional differential treatment of similarly situated persons by state actors without adequate justification, including selective nonenforcement of protective rules.
- Even when a classification is not treated as “suspect,” governmental action motivated by irrational or arbitrary discrimination can violate equal protection.
- A § 1983 equal protection claim may proceed when evidence permits an inference that officials deliberately provided less protection to a victim of harassment because of sex-based considerations (including gender nonconformity) and/or sexual orientation.
- Under DeShaney-type limits, the Due Process Clause generally does not require the state to protect individuals from private violence absent a custodial “special relationship” or a recognized, sufficiently definite state-created danger theory.
- Qualified immunity does not protect officials where existing law would have made clear to a reasonable official that selectively denying protection from violence because a student is gay is unconstitutional.

## Conclusion

The Seventh Circuit held that evidence of intentional, discriminatory refusal to enforce school protections for a gay student could support § 1983 equal protection liability and was not defeated by qualified immunity at summary judgment, while reaffirming that substantive due process generally does not impose a constitutional duty on schools to protect students from peer violence.


Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996)