224 F.3d 638 (7th Cir. 2000)
SCOTT ELWELL, Plaintiff-Appellant,v.KENNETH P. DOBUCKI, Defendant-Appellee.
No. 98-1920
In the  United States Court of Appeals  For the Seventh Circuit
Argued February 8, 2000
Decided August 10, 2000

Appeal from the United States District Court  for the Central District of Illinois, Springfield Division.  No. 93-3068--Richard Mills, Judge.
Before Cudahy, Manion, and Diane P. Wood, Circuit  Judges.
Diane P. Wood, Circuit Judge.


1
In late 1991,  Kenneth Dobucki, the warden at Graham  Correctional Center (a medium security prison run  by the state of Illinois), was assigned the task  of hiring three new lieutenants for Graham.  Eighteen employees applied for those three  vacancies, 15 of whom worked at Graham and three  of whom were employed at other facilities  operated by the Illinois Department of  Corrections (DOC). This case was brought by one  of the disappointed applicants, Scott Elwell, who  believed that either prohibited political  favoritism or race discrimination explained why  he had been unsuccessful. The district court  granted Warden Dobucki's motion for summary  judgment on grounds of qualified immunity for the  equal protection claim and on the merits for the  political affiliation claim. Elwell appealed only  from the adverse judgment on the equal protection  claim based on qualified immunity. We affirm.


2
Our account of the facts would normally take  them in the light most favorable to Elwell, as  the nonmoving party, but here again we have a  case in which the nonmovant chose not to contest  the moving party's statement of undisputed facts,  filed here under Local Rule 7.1(D)(1) of the  Central District of Illinois. We therefore accept  those facts as uncontested, as did the district  court.


3
Warden Dobucki went about filling the three  1991 vacancies, as he was required to do under  pertinent Illinois DOC rules, by posting a notice  state-wide. Of the 24 applicants who initially  came forward, Dobucki found that 18 were eligible  for the lieutenant position. These 18 were  interviewed in January 1992 by a three-person  team from Graham (not including Dobucki himself).  Based on those interviews and other information  in the file, Assistant Warden Michael Baker  prepared a memorandum for Dobucki ranking the  candidates. He submitted the memorandum to Warden  Dobucki at the end of January. The top five were  (1) Charlotte Crockran, a black woman who held  another job at Graham; (2) Theodore Macon, an  African-American man who worked at another  correctional center; (3) Ron Krueger, a white man  who worked at another correctional center; (4)  James Cohan, a white man who held another job at  Graham; and (5) Elwell, who is white and who held  another job at Graham. In June of 1992, Dobucki  selected Crockran, Macon, and Cohan for the  positions.


4
Elwell was upset by being passed over for the  promotion and filed a 42 U.S.C. sec. 1983  complaint. His initial complaint alleged that  Dobucki denied him the promotion because of his  political affiliations, in violation of the First  Amendment. In 1994 he amended the complaint to  add the charge that he was passed over because he  was white, in violation of the Equal Protection  Clause. This latter claim rested on Elwell's  belief that Dobucki had a policy of hiring in-  house (i.e. applicants presently working at  Graham). Had Dobucki followed that policy, he  would have still chosen Crockran and Cohan, but  Elwell would have replaced Macon as the third  choice. According to Elwell, Dobucki veered from  his normal hiring policy, passing over Elwell and  hiring Macon, because he wanted more African-  American lieutenants. Evidence in the record  showed that as of February 1992 (before the  hiring decision in June 1992), only four of the  25 lieutenants working at Graham were African-  American. The record further showed that as of  the same time, there were 1,269 inmates at  Graham, 46% of whom were African-American. The  security staff included one major, six captains,  the 25 lieutenants, 22 sergeants, and 259  correctional officers; 16 of those individuals,  or 3.6%, were African-American.


5
The district court granted Dobucki's motion for  summary judgment on the First Amendment count in  October 1994. Years later, in March of 1998, it  agreed that he had qualified immunity on the  equal protection count and it therefore granted  his motion for summary judgment on that theory as  well. We review the grant of summary judgment de  novo, examining the record (including its lack of  uncontested facts) in the light most favorable to  Elwell to see if he has shown any genuine issue  of material fact. See Bahl v. Royal Indem. Co.,  115 F.3d 1283, 1289-90 (7th Cir. 1997); Fed. R.  Civ. P. 56(c).


6
Qualified immunity is a doctrine which allows  government officials the freedom to perform their  discretionary functions without fear of potential  liability for civil damages. See Harlow v.  Fitzgerald, 457 U.S. 800, 816-18 (1982).  Officials lose their immunity only when their  conduct violates clearly established statutory or  constitutional rights. See id. at 817. In our  review of Dobucki's qualified immunity defense,  the question is not whether Dobucki actually  overstepped the boundaries of the law in his  hiring decision. We must consider only whether  Elwell has shown that the legal standards for the  application of equal protection to the  circumstances he alleges were clearly established  in June of 1992 when Dobucki made the hiring  decision. See Erwin v. Daley, 92 F.3d 521, 525  (7th Cir. 1996); see also Anderson v. Creighton,  483 U.S. 635 (1987) (emphasizing the need to look  at the particular situation facing the  defendant). Dobucki is protected by qualified  immunity unless, based on such clear legal  standards, a reasonable person would have known  that the hiring decision would violate the  Constitution. See Erwin, 92 F.3d at 525.


7
We begin with a look at the legal landscape in  June of 1992. This is ground we largely covered  in our decision in Erwin v. Daley, supra, which  dealt with the similar question whether public  officials of the City of Chicago were entitled to  qualified immunity with respect to the City's  program to increase minority representation among  the ranks of officers in the Chicago Police  Department. The reference year in Erwin was 1990,  rather than 1992 as here, but the difference in  the underlying caselaw is immaterial. In both  instances, the most recent authoritative decision  from the Supreme Court was City of Richmond v.  Croson, 488 U.S. 469 (1989), which dealt with  Richmond's program that required 30% of  government subcontracts to go to minority-owned  businesses. We concluded in Erwin that Croson did  not clearly foreclose the use of numerical  promotional goals for the promotion of minority  police officers. 92 F.3d at 526. For example,  only a year after Croson, in Metro Broadcasting  v. FCC, the Court upheld an FCC licencing program  which favored minority businesses against an  Equal Protection Clause challenge, applying  intermediate scrutiny to the program. 497 U.S.  547, 564-65 (1990).


8
This was the backdrop against which Warden  Dobucki acted in 1992. He was not required to  have a crystal ball that would have revealed the  Supreme Court's 1995 holding in Adarand  Constructors, Inc. v. Pena, 515 U.S. 200 (1995),  that all racial classifications, "benign" or  otherwise, were subject to the strict scrutiny  standard. Id. at 226. Furthermore, had he known  that, he would also have known about the Court's  cautionary statement in Adarand dispelling the  then-commonly held notion that "strict scrutiny  is strict in theory, but fatal in fact." Id. at  202. This court's 1996 decision in Wittmer v.  Peters, 87 F.3d 916 (7th Cir. 1996), which upheld  a policy of considering race when promoting  lieutenants in a minimum security boot camp for  nonviolent male offenders, demonstrates plainly  that the Warden could reasonably have thought in  1992 that he was entitled to do precisely the  same thing at his prison. We are certainly not  prepared to say that the state of law in 1992 was  clearly established in the opposite direction,  when we ourselves continue to uphold some hiring  decisions that take race into account. (While it  is of no immediate legal relevance to this case,  it is interesting to note that Wittmer was well  known to the parties in this case; it was pending  before the same district judge, and the  plaintiffs challenging the policy that was  eventually upheld were represented by the same  lawyer who represents Elwell.)


9
A snapshot of the law in 1992, then, shows that  there was no clearly established prohibition  against taking race into account in a hiring  decision within a prison or police department  context. We are assuming for purposes of this  decision that this is what Warden Dobucki did; we  note as well that he denies the existence of a  rigid policy requiring him to hire in-house  candidates over external applicants and indeed  denies that this case is properly characterized  as an "affirmative action" situation at all. If  there were no policy favoring internal candidates  (and the Illinois DOC requirement of a state-wide  posting tends to support that position), then  Elwell would not have received the job in any  event. If Warden Dobucki had followed the strict  rank order on the list, he would have hired  Crockran (African-American), Macon (African-  American), and Krueger (white). What the Warden  actually did was to skip over Krueger for the  number four applicant, Cohan--also white, but  from Graham unlike Krueger. Only a rigid policy  of preferring Graham applicants would have  brought the Warden far enough down the list to  reach Elwell, who had the number five spot. Thus,  this is the odd "affirmative action" challenge in  which the state official is accused of hiring  people who were ranked as better qualified than  the plaintiff, instead of dipping further down  into the list for some reason and thus passing  over a more highly ranked minority candidate.


10
But we cannot resolve the disputed fact  question about the alleged preference for Graham  applicants. Even if there were such a policy, we  cannot find that Dobucki's action would clearly  have been found to violate the Constitution.  Elwell admits that Dobucki may have had  operational reasons for using race as one factor  in hiring lieutenants: Graham was a medium  security prison with many African-American  inmates. Discipline was critically important for  the security and safety of the prison. Dobucki  allegedly deviated from his policy of internal  hiring when he chose Macon (an African-American  from Centralia) for the second spot instead of  skipping down to Cohan (from Graham), and then to  Elwell for the third spot. Nothing in 1992 would  or should have led Warden Dobucki to the  conclusion that such an action would be a clear  violation of Elwell's equal protection rights. He  is therefore entitled to qualified immunity, and  the judgment of the district court is affirmed.

