In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 01-3193

CHARLA MARTIN, AS SPECIAL ADMINISTRATOR OF

THE ESTATE OF TIMIJANE MARTIN AND PARENT OF

TIMIJANE MARTIN, AND TIMOTHY MARTIN, PARENT

OF TIMIJANE MARTIN,

Plaintiffs-Appellants,

v.

SHAWANO-GRESHAM SCHOOL DISTRICT, RICHARD HESS,

WAUSAU UNDERWRITERS INSURANCE COMPANY, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 99 C 1313—Rudolph T. Randa, Judge.

____________

ARGUED FEBRUARY 28, 2002—DECIDED JULY 3, 2002

____________

Before RIPPLE, MANION, and EVANS, Circuit Judges.

MANION, Circuit Judge. On May 19, 1999, Timijane Martin,

a 13-year-old seventh grader at Shawano Community Middle School in Shawano, Wisconsin, was suspended from

school for possessing a cigarette on school grounds. After

returning home at the end of the school day, Timijane committed suicide. Timijane’s parents, individually and on

their daughter’s behalf, sued the Shawano-Gresham School

District, the Assistant Principal who suspended Timijane,
2 No. 01-3193

1 Also in the locker was a book entitled “After a Suicide,” although Marinack stated in his deposition that he did not notice

the title of the book while he was searching for cigarettes.

and various other school officials, alleging substantive and

procedural due process claims, an Equal Protection claim,

and supplemental state law claims. The district court

granted the defendants summary judgment on the federal

claims and dismissed the state claims without prejudice.

The Martins appeal, and we affirm.

I.

In 1999, Timijane Martin was a seventh grader at the

Shawano Community Middle School. On the afternoon of

the school day on May 19, 1999, some students told the

assistant principal at Shawano, Anthony Marinack, that

Tabitha Reiter, a friend of Timijane’s, had some cigarettes

with her at school. Based on this information, Marinack

searched Tabitha’s locker, where he found a pack of cigarettes. Marinack called Tabitha from class to his office and

told her that she would be suspended from school for three

days. Marinack then called Tabitha’s mother at work and

left a message for her regarding Tabitha’s suspension.

While in Marinack’s office, Tabitha informed him that

Timijane also had cigarettes in her locker, hidden in a sock.

Marinack then went to Timijane’s classroom and called her

out into the hallway. He asked her if she had any cigarettes;

she claimed that she did not. Marinack and Timijane then

walked to her locker, where he again asked her if she had

any cigarettes. Once again she denied having any. Marinack

then searched her locker, eventually finding a cigarette in

a pair of socks located in the side pocket of Timijane’s backpack.1

 After he found the cigarette, Timijane began to cry,

telling Marinack that she was holding the cigarette for
No. 01-3193 3

someone else. Marinack told her that she still possessed

tobacco on school grounds, which was against school policy,

and therefore, she would be receiving a three-day suspension.

Timijane continued to cry as she returned to her classroom

to gather her belongings. Several students saw Timijane

during this time, and they stated that she was crying pretty

hard. Back in his office, Marinack reassured both Tabitha

and Timijane that they had been good kids in school and

had not been in a lot of trouble before and were not in a lot

of trouble now. Despite these reassurances, Timijane continued to cry. Marinack asked Timijane where her parents

were and learned that they were working. Timijane told

Marinack that her father would be off work the next day,

and would come to school to discuss her suspension. While

Marinack was talking to Timijane, Tabitha’s mother returned Marinack’s earlier phone call and informed him that

she would pick Tabitha up from school. While Marinack

was still on the phone with Tabitha’s mother, the 2:30 bell

rang, signaling the end of the school day. Marinack asked

Timijane if she needed to take the bus home from school,

and she replied that she did. Marinack then asked her if

she was sure that she did not want him to contact her

mother. Timijane repeated that she would take the bus

home. Still crying, Timijane left Marinack’s office. While

waiting to get on the bus she talked to a few classmates, and

then took the bus home. After she left for home, Marinack

left a message on the Martins’ home answering machine

alerting them to Timijane’s suspension. Tragically, once she

arrived home, Timijane went to the basement and hung

herself.

Timijane’s mother arrived home about 4:00 p.m., but

did not discover Timijane at that time. Instead, she heard

Marinack’s phone message and immediately drove to the
4 No. 01-3193

2 The softball team was not affiliated with the middle school.

3 By stipulation, the parties agreed to dismiss William Mathias

and the Shawano Community Middle School from the suit.

school. Mrs. Martin explained that she first went to the baseball field because Timijane played recreational softball2

 and

she had practice that afternoon. After not finding her there,

she drove to the school where she found Marinack in the

parking lot. Mrs. Martin and Marinack began discussing

Timijane’s suspension, but at some point during the conversation, Mrs. Martin asked where Timijane was, and when

Marinack told her that she had taken the bus home, Mrs.

Martin returned home. She found Timijane in the basement

and immediately called 911, but they were unable to save

Timijane.

After her death, Timijane’s parents sued Anthony

Marinack, the Assistant Principal, Jeanne Cronce, the Principal, Richard Hess, the Superintendent, William Matthias,

the Assistant Superintendent, the Shawano Community

Middle School, and the Shawano-Gresham School District

(hereinafter defendants) under Section 1983, alleging both

substantive and procedural due process claims, and an

Equal Protection claim.3

 The Martins also asserted state law

claims of negligence. Following discovery, the defendants

moved for summary judgment. The district court granted

the defendants summary judgment on the plaintiffs’ constitutional claims and dismissed the supplemental state law

claims without prejudice. The plaintiffs appeal.

II.

On appeal, the plaintiffs argue that the district court erred

in granting the defendants summary judgment on their sub-
No. 01-3193 5

stantive due process, procedural due process, and Equal

Protection claims. Summary judgment is appropriate if there

are no genuine issues of material fact and the moving party

is entitled to judgment as a matter of law. Fed.R.Civ.P.56(c).

We review the grant of summary judgment de novo, considering the evidence in the light most favorable to the nonmoving party. Shanoff v. Illinois Dept. of Human Servs., 258

F.3d 696, 701 (7th Cir. 2001).

A. Procedural Due Process

The Martins first contend that the defendants violated

Timijane’s procedural due process rights by suspending

her without providing parental notice and a hearing prior

to the suspension. In Goss v. Lopez, 419 U.S. 565 (1975), the

Supreme Court held that public school students have a

property interest in public education, and thus a right to

procedural safeguards. However, under Goss students have

a right to only minimal process: “[D]ue process requires, in

connection with a suspension of 10 days or less, that the

student be given oral or written notice of the charges against

him, and if he denies them, an explanation of the evidence

the authorities have, and an opportunity to present his side

of the story.” Id. at 581.

In this case, the undisputed evidence established that the

defendants complied with the procedural due process

mandates of Goss. Specifically, Marinack informed Timijane

of the charges against her—possession of a cigarette on

school premises—and he allowed Timijane an opportunity

to present her side of the story, which she did, explaining

that she was holding the cigarette for a friend. However,

Timijane did not deny the charge, nor could she, as she

was present when Marinack searched her locker and found

the cigarette. Marinack then explained to Timijane that
6 No. 01-3193

4 On appeal, the Martins point out that the school rules only

expressly prohibited the use of tobacco on school grounds, not

the possession of tobacco. However, they fail to present this as a

separate procedural due process claim, or if they intended to,

they failed to develop the argument on appeal, and thus have

waived it. Duncan v. State of Wis. Dep’t of Health and Family Servs.,

166 F.3d 930, 934 (7th Cir. 1999) (appellants waive argument by

failing to develop argument in briefs on appeal). In any event, the

evidence established that the students knew that it was against

school rules to have cigarettes on school grounds, and Wisconsin

state law also makes it illegal for a minor to possess tobacco. Wis.

Stat. § 254.92. Thus, a procedural due process claim based on this

argument would fail on its merits.

it was irrelevant that she was holding the cigarette for a

friend because it was in her locker and school rules prohibit

possession of cigarettes on school grounds for any reason.4

In response, the Martins argue that due process requires

more, citing Section 120.13(1)(B)3 of the Wisconsin Code

which provides that “[t]he parent or guardian of a suspended minor pupil shall be given prompt notice of the

suspension and the reason for the suspension.” Wis.

Stat. § 120.13(1)(B)3. They also point to Policy 441 of the

Shawano-Gresham School District, which provides:

Before any disciplinary action such as expulsion or suspension is taken against a student, the student has a

right to the due process guaranteed him/her by state

law. Any student accused of an action and threatened

with punishment for this action shall:

1. Be advised of the reason for the disciplinary action.

2. Have the right to explain his/her actions or

his/her side of the allegations.
No. 01-3193 7

3. Have his/her parents(s) or guardian notified if

under eighteen and/or living at home; and

4. Have a right to a hearing before the district administration and/or Board, with the student’s

parent(s), legal counsel, or guardian present if

desired.

The defendants maintain in response that nothing in the

language of either Section 120.13(1)(B)(3) or Policy 441 mandates pre-suspension parental notification or a pre-suspension hearing. We need not resolve this interpretative dispute, however, because the failure to conform with the

procedural requirements guaranteed by state law does not

by itself constitute a violation of federal due process. ProEco, Inc. v. Board of Comm’rs of Jay County, Ind., 57 F.3d 505,

514 (7th Cir. 1995) (a violation of a state procedural statute

does not offend the Constitution); Wallace v. Tilley, 41 F.3d

296, 301 (7th Cir. 1994) (“The denial of state procedures in

and of itself does not create inadequate process under the

federal constitution.”); Osteen v. Henley, 13 F.3d 221, 225

(7th Cir. 1993) (“[A] violation of state law . . . is not a denial

of due process, even if the state law confers a procedural

right.”). Therefore, even if Section 120.13(1)(B)(3) or Policy

441 required more, Timijane cannot state a procedural due

process claim based on the alleged failure to conform to

state law. And as set forth above, the Supreme Court has

held that in the context of a short-term suspension, only

minimal due process is required under the U.S. Constitution, and the undisputed evidence established that the

school provided that requisite process.

The Martins also point to the Student Handbook which

provides: “Parents will be notified of disciplinary action resulting in an out-of-school suspension and will be expected

to pick up their child from school following the notification.” While the Martins contend that this provision re-
8 No. 01-3193

5 In addition to pursuing a procedural due process claim on behalf of Timijane, the Martins claim that their procedural due process rights were also violated. However, as discussed above, the

defendants provided all of the process required under the

Constitution, so the Martins’ independent claim fails as well.

quired the school to detain Timijane after school hours, we

believe a more logical reading of this provision, however, is

the reading Marinack gave it, namely that parents are expected to pick their child up if the suspension occurs during

the school day. In any event, as just noted, the failure to

comply with state procedural rules cannot form the basis for

a federal constitutional claim. See supra at 7. Therefore, we

conclude that the Student Handbook cannot form the basis

for a procedural due process claim.

In sum, while the U.S. Constitution requires a school

which suspends a student to provide that student with due

process, the process required is minimal. Goss, 419 U.S. 565.

The undisputed facts in this case demonstrate that the defendants complied with the constitutional mandates by notifying Timijane of the basis for the disciplinary action and

an opportunity to provide her side of the story. The Constitution does not require pre-suspension parental notification

or a pre-suspension hearing. Moreover, even if state law

required more than the Constitution, that cannot form the

basis of a federal due process claim.5

B. Substantive Due Process

Next, the Martins claim that the defendants violated

Timijane’s substantive due process rights by suspending her

from school, thereby causing her severe emotional distress,

and then by failing to affirmatively protect Timijane from

that distress. This, according to the Martins, caused her to
No. 01-3193 9

commit suicide. To address Timijane’s substantive due process claim, we start with DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 195 (1989), which sets

forth the basic law concerning substantive due process

claims against state actors in this situation.

In DeShaney, despite strong evidence that Joshua DeShaney’s father was physically abusing him, the county social services agency returned the four-year-old to his father’s custody. Id. at 192. After he was returned to his father,

the assigned case worker noticed more suspicious injuries,

and emergency room physicians continued to call Child

Protective Services about injuries to Joshua, but the state

failed to remove him or to take other actions to protect him.

Id. Joshua’s father eventually beat his son so severely that

Joshua suffered permanent brain damage, leaving him severely retarded and likely to spend the remainder of his

life in an institution. Id. at 193. Following the beating, Joshua sued the state agencies and individuals responsible for

the decision to return him to his abusive father, alleging that

the defendants violated Joshua’s substantive due process

rights. Id.

The Supreme Court in DeShaney held that even though

the defendants suspected ongoing abuse, they had not deprived Joshua of his right to due process because the Due

Process Clause’s “purpose was to protect the people from

the State, not to ensure that the State protected them from

each other.” Id. at 195-96. As the Court explained, “nothing

in the language of the Due Process Clause itself requires the

State to protect the life, liberty, and property of its citizens

against invasion by private actors. The Clause is phrased as

a limitation on the State’s power to act, not as a guarantee

of certain minimal levels of safety and security.” Id. at 195.

Thus, the Due Process Clause “forbids the State itself to

deprive individuals of life, liberty, or property without
10 No. 01-3193

6 This and three other circuits have generally rejected the idea

that a school has a “special custodial relationship” with a student

for purposes of the DeShaney exception. See J.O. v. Alton Comm.

Unit Sch. Dist. 11, 909 F.2d 267, 272-73 (7th Cir. 1990); Wyke v. Polk

County Sch. Bd., 129 F.3d 560, 569 (11th Cir. 1997); Dorothy J. v.

Little Rock Sch. Dist., 7 F.3d 729, 732 (8th Cir. 1993); D.R. by L.R. v.

Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1370-73 (3d

Cir. 1992).

‘due process of law,’ but its language cannot fairly be extended to impose an affirmative obligation on the State to

ensure that those interests do not come to harm through

other means.” Id.

While DeShaney concluded that the Due Process Clause

does not generally require the state to act affirmatively to

protect people from harm from private actors, DeShaney

also recognized that “in certain limited circumstances the

Constitution imposes upon the State affirmative duties of

care and protection with respect to particular individuals.”

Id. at 198. Since the Supreme Court rendered its decision in

DeShaney, this circuit has recognized two such “limited

circumstances”: “One exists if the state has a special relationship with a person, that is, if the state has custody of

a person, thus cutting off alternate avenues of aid. The other is the state-created danger exception.” Monfils v. Taylor,

165 F.3d 511, 515 (7th Cir. 1998) (internal citations omitted).

On appeal, the Martins do not claim that the defendants had

a special custodial relationship with Timijane, rather, they

rely on the “state-created danger” exception.6

In Reed v. Gardner, 986 F.2d 1122 (7th Cir. 1993), we summarized the “state-created danger” exception stating “that

plaintiffs . . . may state claims for civil rights violations if

they allege state action that created, or substantially contributes to the creation of, a danger or renders citizens more
No. 01-3193 11

7 The defendants argue that the risk that Timijane would commit

suicide existed before her suspension. After Timijane’s death, the

school learned that prior to her suspension, Timijane had discussed committing suicide in three letters to Tabitha, and in

one or two telephone calls with Tabitha. Also, on the day of her

death, Timijane told Tabitha at lunch that she felt like hanging herself because a former boyfriend had given her a dirty

look and because she felt “ugly and stupid and fat” and was

unable to “get a boyfriend.” Unfortunately, Tabitha did not tell

the school or Timijane’s parents of these conversations until after

her death. While this evidence indicates that there was a risk

of suicide prior to the suspension, and thus the school did not

create the risk, the “state-created danger” exception may also apply if the state increased a risk or danger, which the Martins

claim the suspension did in this case. Stevens v. Umsted, 131 F.3d

697, 704-05 (7th Cir. 1997) (DeShaney “state-created” exception

applies if the state “creates the danger or renders a person more

vulnerable to an existing danger.”) (emphasis added).

vulnerable to danger [than] they otherwise would have

been.” Id. at 1126. Based on this language, the Martins argue

that they can succeed on a substantive due process claim

because the defendants either created the risk that Timijane

would commit suicide, or rendered Timijane more vulnerable to the risk of suicide by suspending her from school.7

Because the school created or increased the danger, the Martins argue, substantive due process required the defendants to take affirmative steps to protect Timijane, by, for

instance, providing her with counseling or holding her at

school until her parents could pick her up.

While there is no case law in this circuit directly on point,

Collignon v. Milwaukee County, 163 F.3d 982 (7th Cir. 1998),

provides a helpful analogy. In Collignon, 28-year-old Jonathan Collignon committed suicide after being released

from police custody. Following his death, Jonathan’s estate
12 No. 01-3193

8 In Collignon, this court noted that the police actually reduced

the risk Jonathan faced because he was released to his parents,

whereas prior to his arrest he was wandering the streets. Id. at

(continued...)

sued the police officers and others involved, claiming that

the defendants had violated Jonathan’s substantive due process rights by releasing him from custody over the objections of Jonathan’s father and stepmother, who had pleaded

with the police department to retain custody of Jonathan

and obtain medical treatment for his paranoid schizophrenia. Relying on DeShaney, this court first held that “the

plaintiffs cannot base their claims on the assertion that [the

defendants] had an obligation to stop Jonathan from committing suicide once he had been released from the jail.”

Id. at 987. We further concluded that “the plaintiffs cannot

claim that the County defendants should have involuntarily committed Jonathan to a mental health facility: Due process protects people from being unlawfully restrained; it

provides no right to be restrained, lawfully or otherwise.”

Id.

This court then considered whether the state had increased the risk to Jonathan. The plaintiffs in Collignon had

argued that by seizing Jonathan and then detaining him,

the defendants had increased the risk that he would commit suicide. Id. at 992. Therefore, according to the plaintiffs,

“the due process clause require[d] the state to protect him

to the extent of ameliorating the incremental risk.” Id. This

court rejected that argument, concluding that while “[i]t

is certainly possible that custody, even when quite temporary, is stressful for mentally ill persons like Jonathan, . . .

temporarily detaining someone in Jonathan’s situation does

not expose him to an ‘incremental risk’ that must then be

ameliorated.” Id.8
No. 01-3193 13

8 (...continued)

992. But that fact does not change the basic conclusion of Collignon that temporarily detaining someone, even if it causes

mental distress, does not “increase the risk” of harm within the

meaning of DeShaney, necessitating state affirmative action. Id.

9 The defendants challenge the Martins’ description of Timijane

as hysterical, pointing to testimony by Marinack that while at

times she was crying pretty hard, she was not crying constantly,

and she was also composed enough to ask questions about how

she could obtain her homework assignments. Marinack also

stated that he believed that Timijane’s reaction to her suspension

was normal for a middle school student in that situation who had

not been in a lot of trouble before. Marinack also stated that if a

student’s reaction to discipline was out of proportion to a particular situation, he would involve the school psychologist, social

(continued...)

As noted in Collignon, “[d]ue process protects people from

being unlawfully restrained; it provides no right to be restrained, lawfully, or otherwise.” Id. at 991. Thus, the Martins’ general claim that the defendants violated Timijane’s

substantive due process rights by allowing her to return

home at the end of the school day cannot succeed. The

Martins’ reliance on the “state-created” danger exception of

DeShaney also falls short. In Collignon, the state did not

create or increase the risk of suicide by arresting Jonathan,

even where the arrest caused severe emotional distress.

So too, here the school did not create or increase a risk to

Timijane by suspending her from school, even if that action

caused severe emotional distress.

On appeal, the plaintiffs also argue at length that the

defendants should have known that Timijane was at risk

to commit suicide. First, they claim that Marinack should

have been aware of Timijane’s extreme distress because

she was crying hysterically.9

 They also claim that Marinack
14 No. 01-3193

9 (...continued)

worker or guidance counselor. However, for purposes of this

motion, we must view the facts in the light most favorable to the

plaintiffs.

10 The plaintiffs’ focus on the defendants’ knowledge of the risk

to Timijane would be relevant to the question of “deliberate indifference.” However, because we conclude that the defendants

did not create or increase the risk of suicide by suspending

Timijane, we need not reach the question of whether the defendants acted with deliberate indifference, which would be necessary to create constitutional liability. See Armstrong v. Squadrito,

152 F.3d 564, 577 (7th Cir. 1998). However, even assuming that

Timijane was distraught after her suspension and that Marinack

saw the title of the book “After a Suicide” in her locker, that

would not be enough to demonstrate that the defendants had a

(continued...)

must have seen the book entitled “After a Suicide” in

Timijane’s locker during the search, and therefore should

have known that Timijane was at risk to commit suicide.

Additionally, the Martins claim that previous suicides by

other students and a district principal should have put

the defendants on notice of the risk of suicide. However,

whether or not that evidence should have put the defendants on notice that Timijane was at risk, the Constitution

does not require the school to act affirmatively in the ways

the plaintiffs claim (providing her with counseling after

school hours or keeping her at school after hours until her

parents could pick her up), unless the state created or increased the danger in the first instance. Here the defendants

did not create or increase the risk that Timijane would commit suicide, and therefore they did not have an affirmative obligation to protect Timijane after school hours. The

alleged knowledge of her fragile emotional state is irrelevant for purposes of the due process clause.10
No. 01-3193 15

10 (...continued)

“conscious disregard of [a] known or obvious danger,” id., that

Timijane would return home that afternoon and kill herself. The

defendants had no knowledge that Timijane had threatened

suicide in the past, and there is no evidence that she had threatened suicide in the presence of Marinack or other school officials.

Compare Armijo, 159 F.3d at 1257 (school may be liable for student’s suicide where the school sent the student home during

school hours and after he had told a school aide that “I’d be

better off dead”).

The Martins respond by citing Armijo v. Wagon Mound

Public Schools, 159 F.3d 1253 (10th Cir. 1998). In Armijo, sixteen-year-old Philadelfio Armijo, a special education student at Wagon Mound Public Schools, committed suicide

after being suspended from school and driven home without parental notification. After Philadelfio’s death, his parents sued the school district and various school officials

alleging that the defendants violated Philadelfio’s substantive due process rights. The district court denied the defendants summary judgment, and the Tenth Circuit affirmed, applying the “state-created danger” exception to

DeShaney. The Tenth Circuit explained that “[t]he key to the

state-created danger cases . . . lies in the state actors’ culpable knowledge and conduct in affirmatively placing an

individual in a position of danger, . . .” Id. at 1263 (quoting

Johnson v. Dallas Ind. Sch. Dist., 38 F.3d 198, 201 (5th Cir.

1994)). To be liable, the Tenth Circuit continued, “the environment created by the state actors must be dangerous;

they must know it is dangerous; and, . . . they must have

used their authority to create an opportunity that would

not otherwise have existed for the third party’s [acts] to

occur.” Armijo, 159 F.3d at 1263 (quoting Johnson, 38 F.3d

at 201). Applying this standard, the Tenth Circuit concluded that the school created a dangerous condition by
16 No. 01-3193

11 The Martins point out that Timijane was supposed to have

gone to softball practice (for a community team, as opposed to

a school team) after school, as opposed to taking the school

bus home. There is absolutely no evidence that the defendants

knew this, and in fact the evidence indicates that Timijane told

Marinack the exact opposite—that she was supposed to take the

school bus home.

suspending Philadelfio, which caused him to become distraught and to threaten violence, and then taking him to his

home and leaving him alone where at least some of the

defendants knew that he had access to firearms and that

he had threatened suicide in the past.

Even if we were to accept the Armijo standard that the

school created a danger and thus could be liable under

DeShaney, the Martins’ argument would still not succeed.

The Martins have not shown that the school defendants

“used their authority to create an opportunity that would

not otherwise have existed for the third party’s [acts] to occur.” Id. at 1263. Rather, the school relinquished control of

Timijane at the end of the school day, just as it would have

done had she not been suspended.11 Conversely, in Armijo,

the court concluded that the school created a risk that

otherwise did not exist by removing Philadelfio from school

during school hours, driving him home, and then leaving

him there alone in the middle of the school day. In that case,

it was not the suspension that created a risk to the child, but

the school’s affirmative act of taking the student home alone

during the middle of the school day. No such evidence of

an affirmative act was presented here.

The First Circuit’s decision in Hasenfus v. LaJeunesse, 175

F.3d 68 (1st Cir. 1999), illustrates the limited application of

Armijo. In Hasenfus, the parents of 14-year-old Jamie

Hasenfus sued the Winthrop Middle School and others
No. 01-3193 17

after their daughter attempted to kill herself at school. Jamie

had tried to commit suicide after she was reprimanded in

front of her classmates by a teacher during a physical education class and then sent back into the locker room. “No

one from the school staff was supervising the locker room.

After returning to the locker room, Jamie tried to hang

herself.” Id. at 70. Classmates found Jamie before she died,

but she went into a coma and, even after waking up, spent

several weeks in the hospital and suffered permanent injuries. Id. The First Circuit concluded that the defendants

could not be liable for violating Jamie’s substantive due

process claims, distinguishing Armijo. Id. at 74. First, the

court noted that whether or not it agreed with the Tenth

Circuit, the facts in Armijo were very troubling. Specifically,

the Tenth Circuit noted that in Armijo, the school sent

the student home during the school day, even though the

school officials knew that the student, who was a special

education pupil not fully able to care for himself, had previously threatened suicide, and that he had access to a

firearm at home. Id. In contrast, the court in Hasenfus explained, there was no evidence that Jamie had threatened

to kill herself then or at any other time, and it did not send

her home alone during the school day. Id.

This case is even more removed than Hasenfus. In this

case, like in Hasenfus, there was absolutely no evidence

that the school authorities knew that Timijane had threatened suicide at any time. But here, unlike Jamie Hasenfus,

Timijane did not attempt suicide during school hours or

on school premises. Thus, the plaintiffs can only succeed if

they establish that the school had a duty to protect Timijane

from suicide after the school day ended. But as Hasenfus recognized, “the primary responsibility for safeguarding children from this danger, as from most others, is that of their

parents; and even they, with direct control and intimate

knowledge, are often helpless.” Id. at 73. Because the de-
18 No. 01-3193

fendants did not create or increase a risk that Timijane

would commit suicide by suspending her and then allowing her to return home at the end of the school day, the

Martins’ substantive due process claim must fail.

C. Equal Protection Claim

Finally, the plaintiffs contend that the defendants violated Timijane’s rights under the Equal Protection clause.

Specifically, the Martins (on Timijane’s behalf) contend

that, even though Timijane and Tabitha were similarly situated, they were treated differently in two ways: First, while

Marinack directly contacted Tabitha’s mother at work

and gave her the opportunity to pick Tabitha up at school,

Marinack never tried to contact Timijane’s parents at work

to give them the same opportunity. Second, the Martins claim that Marinack punished Timijane more severely

than Tabitha by not only suspending her for three days but

by also ordering Timijane to miss the first three volleyball

games of the next season and a field trip.

Typically, an equal protection claim focuses on the denial

of a fundamental right or disparate treatment of persons

depending on the claimant’s suspect classification. We

examine such claims under a more exacting strict scrutiny

test, while other equal protection claims are examined under

the deferential rational basis test. David K. v. Lane, 839 F.2d

1265, 1270 (7th Cir. 1988). Timijane’s Equal Protection claim

involves neither. Not only is she not in a suspect class, but

the right to education is also not considered a fundamental

right. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1,

33-34 (1973). Nonetheless, the Supreme Court has held that

an individual may state a “class of one” equal protection

claim if she has “been intentionally treated differently from

others similarly situated and that there is no rational basis
No. 01-3193 19

12 On appeal, the Martins also contend that Timijane’s Equal

Protection claim requires strict scrutiny because it is based on the

denial of the fundamental right to family relations. The right to

familial relations is a fundamental right protected by the Constitution. Santosky v. Kramer, 455 U.S. 745, 753 (1982). However, the

alleged violation of Timijane’s rights—the disparate treatment

in her discipline—does not implicate the right to familial relations. The right to familial relations concerns the family relationship, not school disciplinary matters. Therefore, we conclude, as

the district court did, that her claim is judged under the rational

basis test.

for the difference in treatment.” Village of Willowbrook v.

Olech, 528 U.S. 562, 564 (2000) (internal quotations omitted).12 This is because “the purpose of the equal protection

clause of the Fourteenth Amendment is to secure every

person within the State’s jurisdiction against intentional

and arbitrary discrimination, whether occasioned by express

terms of a statute or by its improper execution through duly

constituted agents.” Id.

The question remains then as to whether Marinack had a

rational basis for treating Timijane and Tabitha differently.

Marinack explained that he called Tabitha’s mother at work

because he had discovered the cigarettes in Tabitha’s locker

first and earlier in the school day. However, by the time he

had searched Timijane’s locker and had her in his office

the school day was almost over. Marinack further explained

that he kept Tabitha at school because her mother had returned his earlier phone call. On the other hand, the dismissal bell rang before Marinack had contacted Timijane’s

parents, and while he was still discussing her suspension.

As Marinack explained in his deposition, he asked Timijane

if she had to take the bus home and she said that she did.

Marinack then asked her if she wanted him to call her mother, but she again said she would take the bus home. Under
20 No. 01-3193

13 To the extent the Martins are pursuing an Equal Protection

claim on their own behalf for this same differing treatment, that

claim also fails because Marinack had a rational reason for contacting Tabitha’s mother but not Mrs. or Mr. Martin.

these circumstances, and in light of the different timing

involved, Marinack’s differing treatment of Tabitha and

Timijane was rational.13

The Martins also claim that Timijane was treated more

severely than Tabitha because in addition to a three-day suspension, Marinack ordered her to miss the first three volleyball games of the next season and a field trip. Marinack

testified in his deposition that he did not order Timijane

to miss the volleyball games or the field trip, and that he

only suspended her for three days, just like he did with

Tabitha. To support their claim, Mrs. Martin points to her

affidavit in which she attested that Marinack told her in

the school parking lot that he had ordered Timijane to miss

the first three volleyball games next season and a school

field trip. The district court, however, struck that affidavit

because it contradicted her deposition testimony. While

the Martins do not challenge that evidentiary ruling on

appeal, they do claim that there was other evidence that

Timijane was punished in this manner. Specifically, the

Martins point to Mr. Martin’s deposition testimony in which

he said that he understood from Mrs. Martin that Timijane

was also suspended from three volleyball games the following year. However, to the extent that Mr. Martin is repeating what his wife told him, that evidence is inadmissible hearsay. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d

560, 562 (7th Cir. 1996). To the extent Mr. Martin testified as

to his “understanding,” he lacked personal knowledge as

to the punishment ordered, and as such that evidence is

inadmissible, and thus cannot create a factual issue. Gusto-
No. 01-3193 21

14 Because we conclude that the facts fail to support a constitutional claim, we need not reach the question of qualified immunity or whether the school district had a custom or policy creating municipal liability. Harlow v. Fitzgerald, 457 U.S. 800, 818-19

(1982); Monell v. Department of Soc. Servs. of City of New York, 436

U.S. 658 (1978).

vich v. AT&T Comm., Inc., 972 F.2d 845, 849 (7th Cir. 1992).

The Martins also rely on testimony from a classmate of

Timijane who stated that after her suspension Timijane said

that she felt it was unfair that Tabitha’s penalty was more

lenient. This also constituted hearsay, and even if it were

admissible, the classmate’s statement does not contradict

Marinack’s testimony that he did not order Timijane to miss

the three volleyball games and a field trip. Moreover, to

be liable, the defendants would have had to have acted

with deliberate indifference in meting out the differing

punishments, but there is insufficient evidence to support

that finding. See Schroeder v. Hamilton Sch. Dist., 282 F.3d

946, 951 (7th Cir. 2002). Therefore, the defendants were entitled to summary judgment on Timijane’s Equal Protection

claim.

III.

The tragedy of suicide, especially of a young person, cannot be overstated—it is the loss of a precious life. It leaves

everyone questioning how it could happen and how it

could have been prevented, and it is understandable that

the Martins look to the school in their search for answers.

But notwithstanding their anguish and the tragedy of

Timijane’s death, the defendants did not violate either

Timijane’s or the Martins’ constitutional rights,14 so we must

AFFIRM.
22 No. 01-3193

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-97-C-006—7-3-02