## Facts

- Brandon Tun was a student at Wayne High School in Fort Wayne, Indiana, and a member of the school wrestling team.
- While Tun and three teammates were showering in the boys’ locker room, the team’s student manager photographed them.
- The students “played along” with the photo-taking; the record left unclear whether they believed the camera actually had film.
- The photos showed the boys nude while showering, though they partially turned away and covered their genitals.
- A teacher and assistant wrestling coach discovered and confiscated the film negatives.
- Joselyn Whitticker, the school’s principal, initiated expulsion proceedings, relying on a school rule listing “participating in public indecency on school property” as an expellable offense.
- Whitticker recommended expulsion on the theory that Tun “allowed” nude photos of himself to be taken in the locker room.
- Judith Platz served as the hearing officer, conducted the expulsion hearing, and upheld the expulsion recommendation; Tun was expelled for several weeks.
- Tun appealed through state administrative channels, succeeded, and the expulsion was expunged from his disciplinary record.
- Tun then filed a civil-rights suit under 42 U.S.C. § 1983, alleging that Whitticker’s and Platz’s actions were such an egregious misuse of school disciplinary authority that they violated his federal substantive due process rights.
- A magistrate judge granted summary judgment to Tun on the substantive due process claim and denied Whitticker and Platz qualified immunity; Whitticker and Platz appealed.

## Issues

1. Whether initiating and upholding Tun’s expulsion for participating in locker-room shower photographs was so arbitrary and egregious that it violated substantive due process under the “conscience-shocking” standard.
2. If a constitutional violation could be found, whether Whitticker and Platz were nonetheless protected from damages by qualified immunity.

## Decision

- The Seventh Circuit reversed the judgment for Tun.
- The court held that, even if the school officials’ reading of the code of conduct was an overreaction or a serious mistake, their actions did not rise to the level of a substantive due process violation.
- Because Tun did not establish a constitutional violation, the officials could not be held liable under § 1983; the district court’s denial of qualified immunity could not stand.

## Legal Principles

- Substantive due process is reserved for truly extreme executive misconduct; it is not a general federal remedy for poor judgment by public officials.
- In the school-discipline setting, conduct violates substantive due process only when it is so arbitrary that it “shocks the conscience,” not merely because it is excessive, mistaken, or based on a broad interpretation of a school rule.
- Section 1983 does not constitutionalize routine disputes about student discipline that can be addressed through local procedures and state administrative review.
- When a court finds no constitutional violation on the facts alleged, individual defendants are entitled to judgment as a matter of law, and qualified immunity follows from the failure to satisfy the first step of the constitutional analysis.

## Conclusion

In *Tun v. Whitticker*, the Seventh Circuit held that school officials who sought and upheld a student’s expulsion after locker-room shower photos were taken may have exercised poor judgment, but their actions were not so arbitrary or extreme as to “shock the conscience” and therefore did not violate substantive due process; the court reversed the grant of summary judgment for the student and ruled that the officials could not be held liable under § 1983.


Tun v. Whitticker, 398 F.3d 899 (2005)