                            In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 04-2972
BRANDON TUN,
                                              Plaintiff-Appellee,
                               v.

JOSELYN WHITTICKER and
JUDITH PLATZ,
                                   Defendants-Appellants.
                        ____________
           Appeal from the United States District Court
    for the Northern District of Indiana, Fort Wayne Division.
    No. 1:03-CV-0217—Roger B. Cosbey, Magistrate Judge.
                        ____________
 ARGUED JANUARY 10, 2005—DECIDED FEBRUARY 16, 2005
                    ____________

 Before CUDAHY, KANNE, and EVANS, Circuit Judges.
 EVANS, Circuit Judge.
   * No person shall . . . be deprived of life, liberty, or
     property, without due process of law . . . . (U.S.
     Constitution, amendment V)
   * [N]or shall any State deprive any person of life,
     liberty, or property, without due process of law . . . .
     (U.S. Constitution, amendment XIV, § 1).
 As one commentator astutely observed,
   A reader of the Supreme Court’s substantive due
   process cases can come to feel like a moviegoer who
   arrived late and missed a crucial bit of exposition.
2                                                   No. 04-2972

    Where is the part that explains the connection between
    this doctrine and the text of the constitutional provi-
    sions from which it takes its name?1
  This case requires that we once again wade into the
murky waters of that most amorphous of constitutional
doctrines, substantive due process. We start with the facts,
which are undisputed insofar as they are material to the
case.
  Brandon Tun, a high school student and member of the
wrestling team, was taking a shower in the boys’ locker
room of Wayne High School in Fort Wayne, Indiana, when
a fellow student took pictures of him and three other
wrestlers.2 Quite naturally, the boys were naked while
showering, but they also partially turned their backs to the
camera and covered up their genitals. After the photos were
taken, Tun was sitting on the bleachers in the gym, looking
at the negatives, when he was spotted by David Mohr, the
photography teacher and an assistant wrestling coach. Tun
was giggling, which caused Mohr to become suspicious.
When Tun saw Mohr he tossed the negatives aside, and
Mohr confiscated them. From there on, events took several
unfortunate turns, resulting in Tun’s being expelled from
school for 6 weeks. Tun, by his parents, sued the school
district; two wrestling coaches, Gregory Rhodes and David
Mohr; Joselyn Whitticker, Wayne High’s principal who
recommended Tun’s expulsion; and Judith Platz, a hearing
officer who presided at Tun’s expulsion hearing and upheld
Whitticker’s recommendation. Cross-motions for summary
judgment were filed, and Tun’s, based on a substantive due


1
  Professor John Harrison writing in the April 1977 issue of the
Virginia Law Review.
2
  There are four pictures in the record: one shows all four skinny
boys, one has two of the boys, and the other two each show one
boy. We don’t know which of the boys is Brandon Tun.
No. 04-2972                                                    3

process claim against Whitticker and Platz, was granted.
Also, as relevant, Whitticker and Platz’s claim of qualified
immunity was denied. Today we resolve their appeal from
both decisions.
  After Mohr confiscated the negatives, he asked Tun where
they came from and was told they came from the wrestling
team student manager, named here only as “Constantine”
(apparently a foreign exchange student who is sometimes
called “Kostyantyn”). Mohr took the negatives to the head
wrestling coach and then to John Hester, an administrator
at the school. Hester asked Mohr to develop the pictures.
During this process, Mohr noted that the photographs were
on film issued to students in his class. After Mohr devel-
oped the prints he gave them to Hester, and an investiga-
tion was launched. Statements were obtained from
Constantine and the four boys who appeared in the photos.
Constantine said the boys asked him to take the pictures.
One of the boys said they just played along with the “photo
shoot” because they did not think there was film in the
camera. The results of the investigation were reported to
Whitticker, who ordered that Tun and the other boys be
suspended for public indecency pending further investiga-
tion. Whitticker met with each boy and his parents.
  After meeting with the parents, Whitticker began expul-
sion proceedings against the boys, alleging violations of
Rule 22 and Rule 24 of the district’s behavior code. Rule 22
prohibits “[p]articipating in inappropriate sexual behavior
including . . . public indecency on school property . . . .” Rule
24 prohibits “[p]ossession and/or distribution of porno-
graphic material which would reasonably be considered
offensive by community standards for students, which are
without redeeming social value . . . .” An expulsion hearing
was convened, with Platz presiding. Tun was represented
by counsel, who pointed out that the behavior code does not
provide for expulsion for a violation of Rule 24 and that Tun
could only be expelled if there were a violation of Rule 22,
4                                                No. 04-2972

which he said there was not because all Tun was doing was
taking a shower in the boys’ locker room. Despite what
seems to us to be the attorney’s faultless logic, Tun was
expelled based on Platz’s findings that
    Brandon Tun allowed another Wayne High School
    student to take photographs of him while nude in the
    boys’ locker room. Brandon did not ask the student to
    stop taking pictures. He did not report the incident to
    any adults at Wayne High School.
    Brandon was in possession of the negatives of the
    photographs of himself and three other male students.
  Tun appealed, pursuant to the school district’s adminis-
trative review process, and Platz’s decision was reversed.
Tun was permitted to return to school after missing 6 weeks
of classes. His disciplinary record was cleared so it does not
reflect the expulsion. Tun also managed to make up the
class work he missed. Nevertheless, Tun alleges that his
substantive due process rights were violated, and Magis-
trate Judge Roger Cosbey, sitting by consent pursuant to 28
U.S.C. § 636, agreed. While Judge Cosbey’s decision is quite
thoughtful and very well-crafted, we cannot agree that the
events in this case meet the high threshold for substantive
due process claims. Because our review is de novo, Sullivan
v. Ramirez, 360 F.3d 692 (7th Cir. 2004), the claim is
doomed.
  We have jurisdiction over this appeal because it involves
a collateral order denying a qualified immunity defense. See
Mitchell v. Forsyth, 472 U.S. 511 (1985). Qualified immu-
nity is not simply a defense to liability. It also provides
immunity from suit. Saucier v. Katz, 533 U.S. 194 (2001). It
protects government officials “from liability for civil dam-
ages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzger-
ald, 457 U.S. 800, 818 (1982); Knox v. Smith, 342 F.3d 651
No. 04-2972                                                  5

(7th Cir. 2003). Analysis of whether qualified immunity
applies requires a two-step inquiry. First, viewing the facts
in the light most favorable to the plaintiff, we must deter-
mine whether the official violated a constitutional right. If
so, we must determine whether that right was clearly
established at the time of the violation. Saucier. For a right
to be clearly established,
    its contours “must be sufficiently clear that a reason-
    able official would understand that what he is doing
    violates that right. This is not to say that an official
    action is protected by qualified immunity unless the
    very action in question has previously been held unlaw-
    ful, but it is to say that in the light of the pre-existing
    law the unlawfulness must be apparent.”
Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Anderson
v. Creighton, 483 U.S. 635, 640 (1987)) (citation omitted).
The proper question to ask is “whether the state of the law
[at the time of the incident] gave respondents fair warning
that their alleged treatment of [the plaintiff] was unconstitu-
tional.” Hope, 536 U.S. at 741.
  As Judge Cosbey observed, Tun’s federal court complaint
“is a confusing mix of legal and factual assertions.” But out
of that mix, the focal point of this case becomes whether
Tun’s substantive due process rights were violated. We
know, of course, that substantive due process is a difficult
concept to pin down. And, as we discussed in Dunn v.
Fairfield Community High School, District No. 225, 158
F.3d 962 (7th Cir. 1998), it is not to be confused with
procedural due process. This appeal does not involve Tun’s
procedural due process rights. After all, he had hearings,
his attorney was present, and ultimately the discipline
imposed on him was found to be improper and his record
was cleared. What he contends, though, is that something
about his expulsion implicated his federal constitutional
substantive due process rights. Phrasing it in qualified
6                                               No. 04-2972

immunity terms, counsel at oral argument said that the
school officials should have known that it is clearly estab-
lished that they could not discipline Tun when there was no
evidence of wrongdoing.
  We are consistently reminded that the scope of substan-
tive due process is very limited. See Washington v.
Glucksberg, 521 U.S. 702 (1997). The Court is, it says,
“reluctant to expand the concept of substantive due process
because guideposts for responsible decisionmaking in this
unchartered area are scarce and open-ended.” Collins v.
Harker Heights, 503 U.S. 115, 125 (1992). The essence of
due process is the “protection of the individual against
arbitrary action of government.” Wolff v. McDonnell, 418
U.S. 539, 558 (1974); Glucksberg. Substantive due process
involves the exercise of governmental power without
reasonable justification. Dunn. It is most often described as
an abuse of government power which “shocks the con-
science.” Rochin v. California, 342 U.S. 165 (1952).
  Cases abound in which the government action—though
thoroughly disapproved of—was found not to shock the
conscience. Perhaps most notable in this genre is County of
Sacramento v. Lewis, 523 U.S. 833 (1998). The case involved
a 100-mile-an-hour chase in which 16-year-old Philip Lewis
was killed when the motorcycle on which he was riding
tipped over; he was hit by the speeding patrol car and
thrown 70 feet down the roadway. Lewis’s parents claimed
that the officer had disregarded department procedures for
high-speed chases and that the officer’s actions in causing
Lewis’s death “were an abuse of executive power so clearly
unjustified by any legitimate objective of law enforcement
as to be barred by the Fourteenth Amendment.” At 840.
Noting that actions violate the due process clause only if
they can properly be characterized as “conscience shocking,
in a constitutional sense” (Lewis, quoting Collins, 503 U.S.
at 128), the Court found no due process violation; the
officer’s conduct did not shock the conscience.
No. 04-2972                                                7

  It is one thing to say that officials acted badly, even
tortiously, but—and this is the essential point—it is quite
another to say that their actions rise to the level of a
constitutional violation. We have declined to impose
constitutional liability in a number of situations in which
we find the officials’ conduct abhorrent. For instance, we
have our own car-chase case in which we found no violation
in the use of a tire-deflation device. Bublitz v. Cotter, 327
F.3d 485 (7th Cir. 2003). In Schaefer v. Goch, 153 F.3d 793
(7th Cir. 1998), there was no substantive due process
violation when officers shot a woman to death on her own
front steps during a standoff with the woman’s husband.
  School discipline cases have not escaped our attention. In
Dunn, school band members received failing grades for
playing two unauthorized pieces at a band program. We
found no violation. Remer v. Burlington Area School
District, 286 F.3d 1007 (7th Cir. 2002), involved a student
plot to enter Burlington High School and shoot several
students and teachers. M.R. was one of the plotters who
withdrew from the conspiracy. Because he withdrew he was
not criminally prosecuted, but he was expelled from school.
In his § 1983 case he claimed violations of his procedural
and substantive due process rights. As to his substantive
rights, he claimed that there was inadequate evidence
against him, a claim we soundly rejected.
  School discipline cases have also found their way to the
Supreme Court. In Wood v. Strickland, 420 U.S. 308 (1975),
two high school girls spiked the punch at a school event and
were expelled for the remainder of the semester. The
amount of alcohol put in the punch was negligible, and the
girls claimed that the suspension violated their substantive
due process rights because there was no evidence on which
to base the disciplinary action. The Supreme Court, in
finding for the school district, said:
    It is not the role of the federal courts to set aside
8                                                No. 04-2972

     decisions of school administrators which the court may
     view as lacking a basis in wisdom or compassion. Public
     high school students do have substantive and proce-
     dural rights while at school. See Tinker v. Des Moines
     Independent Community School District, 393 U.S. 503
     (1969); West Virginia State Board of Education v.
     Barnette, 319 U.S. 624 (1943); Goss v. Lopez, 419 U.S.
     565 (1975). But § 1983 does not extend the right to
     relitigate in federal court evidentiary questions arising
     in school disciplinary proceedings or the proper con-
     struction of school regulations. The system of public
     education that has evolved in this Nation relies neces-
     sarily upon the discretion and judgment of school
     administrators and school board members, and § 1983
     was not intended to be a vehicle for federal-court
     corrections of errors in the exercise of that discretion
     which do not rise to the level of violations of specific
     constitutional guarantees. See Epperson v. Arkansas,
     393 U.S. 97, 104 (1968); Tinker, supra, at 507.
At 326.
  In another alcohol-related case, a student was expelled for
being drunk at school. The school had a rule against
possession of certain drugs as classified by state law.
Alcohol was not among those drugs. The district court and
the court of appeals both held that the district’s reliance on
the law prohibiting drug possession when the offense
involved alcohol violated the student’s substantive due
process rights. The Supreme Court disagreed, saying that,
while it might be possible to imagine a situation in which a
school board’s interpretation of its own rules would be so
“extreme as to be a violation of due process,” this was not
that case, and the board’s interpretation of its rules con-
trolled. Bd. of Educ. of Rogers, Ark. v. McCluskey, 458 U.S.
966, 970 (1982).
    In our case, it seems that the professionals in this sad
No. 04-2972                                                  9

train of events, from Mohr, to Rhodes, to Whitticker, and
finally to Platz, exercised questionable judgment. After all,
when you get right down to it, Tun and the other skinny
wrestlers were just horsing around in the boys’ locker room.
This wasn’t assaultive behavior, porno peddling, drug
selling, gun toting, or any of the other serious matters that
can cause real problems in a high school. Ripping up the
pictures and telling the boys that they used bad judgment
would have been more than enough medicine to cure this
little ill. The overreaction by the defendants, including an
overly broad reading of the district’s behavior code, was
regrettable. But we can’t say that what the defendants did,
considering the limitations set out in McCluskey, violated
the due process clauses of the United States Constitution.
But the situation does demonstrate the importance of
providing procedural due process, which ultimately allowed
Tun (and we assume the other boys) to prevail at the end of
the day: his expulsion was set aside, his school records were
cleared, and he returned to school.
  Because there was no constitutional violation, we need
not proceed to the second step of the qualified immunity
analysis. However, even had we somehow found this
incident to rise to the level of a constitutional violation, we
could not find that the law was so clearly established that
reasonable people would know they could not do what
Whitticker and Platz did. If anything, the case law would
probably reassure them that they could. They are entitled
to qualified immunity.
  Accordingly,    the   decision   of   the   district   court
is REVERSED.
10                                        No. 04-2972

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—2-16-05
