804 F.2d 67 (7th Cir. 1986), 85-2859, Wade v. Hegner

• Citation: 804 F.2d 67
• Party Name: Charlie WADE, et al., Plaintiffs-Appellees, v. Thomas HEGNER, Defendant-Appellant.
• Case Date: October 20, 1986
• Court: United States Courts of Appeals, U.S. Court of Appeals — Seventh Circuit

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804 F.2d 67 (7th Cir. 1986)

Charlie WADE, et al., Plaintiffs-Appellees,

v.

Thomas HEGNER, Defendant-Appellant.

No. 85-2859.

United States Court of Appeals, Seventh Circuit

October 20, 1986

Argued April 18, 1986.

John B. Murphey, Ancel, Glick, Diamond, Murphy & Cope, P.C., Chicago, Ill., for defendant-appellant.

F. Thomas Hecht, Marilyn J. Klawiter, Hopkins & Miller, Chicago, Ill., for plaintiffs-appellees.

Before CUMMINGS and EASTERBROOK, Circuit Judges, and NOLAND, Chief District Court Judge. ^[*]

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CUMMINGS, Circuit Judge.

Charlie Wade filed this civil rights action in April of 1983. Wade brought the suit for himself and on behalf of his six children, alleging that in 1980 they were denied admission to a Cicero public school because of race. After initial discovery, the parties moved for summary judgment on the merits. One of the defendants, Thomas Hegner, ¹ also argued that he was entitled to qualified immunity. On September 24, 1985, the district court denied the parties' cross-motions for summary judgment and denied Hegner's bid for qualified immunity, concluding that the legal doctrine which prohibited excluding children from public schools on the basis of race was well established in 1980. Defendant Hegner appeals only from the district court's decision not to grant him immunity. He is the sole appellant. We have jurisdiction under 28 U.S.C. Sec. 1292(a). See Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411; Lojuk v. Johnson, 770 F.2d 619 (7th Cir.1985).

I. Facts

Charlie Wade is a skilled horse groom who moved to Sportsman's Park Racetrack in Cicero, Illinois, with his family in the fall of 1980. Sportsman's Park is a recreational horse-racing track; it provides residential quarters for its horse-care workers. The Wades are black United States citizens.

Defendant Thomas Hegner is a lifelong resident of Cicero and was the principal of Drexel Elementary School in the fall of 1980. Hegner is white. Drexel School is located in school district No. 99, and is the elementary school serving children who live at Sportsman's Park. Only white children attended Drexel or any Cicero school in 1980.

In the early fall of 1980, Hegner reassured a white parent that there were no black students at Drexel. Apprehensive that some black parents might attempt to enroll their children, Hegner sought the advice of Edward Aksamit, his predecessor. Aksamit told Hegner what he had once done when a black family had requested enrollment of their children at Drexel. He described to them racial hatreds prevalent in the Cicero community, whereupon they took their children to Hearst Elementary School, a predominantly black Chicago school.

In October 1980 Wade went to Drexel school to enroll his children. He was met by Hegner who immediately said, "It won't work." He then described the hostility that the community felt toward enrolling black children in Cicero schools. Hegner said that he could not protect Wade's children from the dangers of violence--in school or out. Wade testified that Hegner explained to him, "[I]f I wanted to enroll them he would have to accept them but he prefer [sic] that I didn't enroll them and recommend [sic] that I didn't enroll them for safety, for fear of their safety." Hegner's preference and recommendation were that Wade take the children to another school although he would enroll the children if Wade insisted. Hegner then took out a school directory and gave Wade several names of alternative schools. He sent Wade on his way without taking any information from him (such as the children's names or ages) nor did he offer Wade any assistance in dealing with the negative and hostile community reaction.

Not too surprisingly, Wade heeded Hegner's recommendation and enrolled his children the following day at Hearst School in Chicago. According to Wade,

[The children were enrolled] after I begged them [the Hearst officials] to let my children go to [Hearst] school and explained to them what was said at the other school [Drexel]. (Pls' Br. 8).

Several weeks later the children were instructed to enroll in Drexel, the appropriate Cicero school, because their enrollment violated the Illinois School Code (they were attending a school outside their own district).

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Social workers whom Wade had contacted for help met with Hegner to arrange the children's transfer. Hegner continued to warn of violence and state his opposition to the enrollment of the Wade children at Drexel. The children eventually began attending Drexel shortly before Thanksgiving.

That attendance, however, was brief. The community was indeed outraged by the short-lived desegregation. As a result the Wades were forced to leave town in only a few days. Hegner and Drexel School were informed of the Wade family's departure and prepared out-of-the school transfers for the children.

II. Qualified Immunity

Defendant claims that the trial court erred three ways when it rejected his defense of qualified immunity. He asserts that the court failed to find case law holding that his conduct violated clearly established constitutional principles and improperly injected an element of subjective motivation into its analysis. ² We affirm the district court's denial of summary judgment.

Defendant asserts that his state of mind is totally irrelevant in determining whether he is entitled to qualified immunity. He cites Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396, for the proposition that the district court improperly assumed his intent to discriminate in concluding that his conduct violated plaintiffs' constitutional rights. This argument misses the boat by a long shot.

In Harlow, the Supreme Court adjusted the "good faith" standard of the qualified immunity defense to create a wholly objective standard. Under the previous subjective standard immunity was not available if the defendant "took the action with the malicious intention to cause a deprivation of constitutional rights or other injury." Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1000, 43 L.Ed.2d 214. This subjective defense element was found incompatible with the underlying purpose of qualified immunity--that insubstantial claims should not proceed to trial--because the allegation of such intent could easily create an issue of fact for trial. To accommodate that purpose Harlow enunciated an objective standard that could be analyzed without the need to resolve factual issues. Under Harlow, government officials are subject to damages liability only if their conduct has violated "clearly established" constitutional rights of which a reasonable person would have known. 457 U.S. at 818, 102 S.Ct. at 2738. In rejecting the subjective portion of the defense the Court held that the bare allegations of a malicious intention to subvert constitutional rights would no longer be enough to force government officials to a trial. Harlow, 457 U.S. at 817, 102 S.Ct. at 2737. Thus when the Court "objectified" qualified immunity, it did away with a subjective analysis of whether the defendant violated constitutional rights. In so doing the Court attempted to focus on the objective reasonableness of an official's act--not to provide a "license to lawless conduct." Id. at 819, 102 S.Ct. at 2738.

Hegner confuses the "intent" issues in applying the Harlow standard. ³ Two separate intent or state of mind issues exist in this case. One is related to the offense and the other is related to the defense. For purposes of the "offense" (whether Hegner discriminated) plaintiffs' supported allegations are assumed true, including intent. Once those allegations demonstrate a constitutional violation, the issue of intent is

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put aside. Then the "defense" (qualified immunity) is analyzed without any reference to intent, as mandated by Harlow. Intent is relevant to the threshold question of whether the defendant violated plaintiffs' constitutional rights but is ignored for a question of whether that right was "clearly established" at the time of the incident. Under Harlow and its progeny, what the district court is not permitted to do is consider whether Hegner intended to deprive the Wades of their constitutional rights irrespective of whether those rights were clearly established at the time. Accord Kenyatta v. Moore, 744 F.2d 1179 (5th Cir.1984); Note, Qualified Immunity for Government Officials: The Problem of...