                            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 Mid-
dle 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 com-
mitted 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

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 ciga-
rettes. 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 back-
      1
pack. After he found the cigarette, Timijane began to cry,
telling Marinack that she was holding the cigarette for


1
  Also in the locker was a book entitled “After a Suicide,” al-
though Marinack stated in his deposition that he did not notice
the title of the book while he was searching for cigarettes.
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 suspen-
sion.
  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 con-
tinued 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 re-
turned 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

school. Mrs. Martin explained that she first went to the base-
                                                         2
ball field because Timijane played recreational softball 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 con-
versation, 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 Prin-
cipal, 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
                        3
Equal Protection claim. 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’ con-
stitutional 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-


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.
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, consid-
ering the evidence in the light most favorable to the non-
moving 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

it was irrelevant that she was holding the cigarette for a
friend because it was in her locker and school rules prohibit
                                                            4
possession of cigarettes on school grounds for any reason.
  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 sus-
pended 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 sus-
    pension 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 ac-
              tion.
         2.   Have the right to explain his/her actions or
              his/her side of the allegations.



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.
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 ad-
              ministration 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 man-
dates pre-suspension parental notification or a pre-suspen-
sion hearing. We need not resolve this interpretative dis-
pute, 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. Pro-
Eco, 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. Constitu-
tion, 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 re-
sulting in an out-of-school suspension and will be expected
to pick up their child from school following the notifica-
tion.” While the Martins contend that this provision re-
8                                                   No. 01-3193

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 ex-
pected 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 de-
fendants complied with the constitutional mandates by no-
tifying Timijane of the basis for the disciplinary action and
an opportunity to provide her side of the story. The Consti-
tution 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
                                      5
basis of a federal due process claim.


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


5
  In addition to pursuing a procedural due process claim on be-
half of Timijane, the Martins claim that their procedural due pro-
cess 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.
No. 01-3193                                                    9

commit suicide. To address Timijane’s substantive due pro-
cess claim, we start with DeShaney v. Winnebago County De-
partment 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 De-
Shaney’s father was physically abusing him, the county so-
cial services agency returned the four-year-old to his fa-
ther’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 se-
verely retarded and likely to spend the remainder of his
life in an institution. Id. at 193. Following the beating, Josh-
ua 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 de-
prived 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

‘due process of law,’ but its language cannot fairly be ex-
tended 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 rela-
tionship with a person, that is, if the state has custody of
a person, thus cutting off alternate avenues of aid. The oth-
er 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
                                                 6
rely on the “state-created danger” exception.
  In Reed v. Gardner, 986 F.2d 1122 (7th Cir. 1993), we sum-
marized the “state-created danger” exception stating “that
plaintiffs . . . may state claims for civil rights violations if
they allege state action that created, or substantially contrib-
utes to the creation of, a danger or renders citizens more


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).
No. 01-3193                                                     11

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 vulnera-
                                                            7
ble to the risk of suicide by suspending her from school.
Because the school created or increased the danger, the Mar-
tins argue, substantive due process required the defen-
dants 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 Jon-
athan Collignon committed suicide after being released
from police custody. Following his death, Jonathan’s estate


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 dis-
cussed 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 hang-
ing 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 ap-
ply 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).
12                                                  No. 01-3193

sued the police officers and others involved, claiming that
the defendants had violated Jonathan’s substantive due pro-
cess rights by releasing him from custody over the objec-
tions 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 schizo-
phrenia. 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 com-
mitting 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 involuntar-
ily committed Jonathan to a mental health facility: Due pro-
cess 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 in-
creased 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 com-
mit 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 tempo-
rary, 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
                   8
ameliorated.” Id.


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...)
No. 01-3193                                                     13

  As noted in Collignon, “[d]ue process protects people from
being unlawfully restrained; it provides no right to be re-
strained, lawfully, or otherwise.” Id. at 991. Thus, the Mar-
tins’ 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
                            9
she was crying hysterically. They also claim that Marinack


8
   (...continued)
992. But that fact does not change the basic conclusion of Col-
lignon 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 par-
ticular situation, he would involve the school psychologist, social
                                                     (continued...)
14                                                    No. 01-3193

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 defen-
dants 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 in-
creased the danger in the first instance. Here the defendants
did not create or increase the risk that Timijane would com-
mit suicide, and therefore they did not have an affirma-
tive obligation to protect Timijane after school hours. The
alleged knowledge of her fragile emotional state is irrele-
                                               10
vant for purposes of the due process clause.


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 in-
difference.” 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 defen-
dants acted with deliberate indifference, which would be neces-
sary 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...)
No. 01-3193                                                     15

   The Martins respond by citing Armijo v. Wagon Mound
Public Schools, 159 F.3d 1253 (10th Cir. 1998). In Armijo, six-
teen-year-old Philadelfio Armijo, a special education stu-
dent at Wagon Mound Public Schools, committed suicide
after being suspended from school and driven home with-
out parental notification. After Philadelfio’s death, his par-
ents sued the school district and various school officials
alleging that the defendants violated Philadelfio’s substan-
tive due process rights. The district court denied the de-
fendants summary judgment, and the Tenth Circuit af-
firmed, 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’ culpa-
ble 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 en-
vironment 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 con-
cluded that the school created a dangerous condition by


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 threat-
ened suicide in the presence of Marinack or other school officials.
Compare Armijo, 159 F.3d at 1257 (school may be liable for stu-
dent’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”).
16                                                 No. 01-3193

suspending Philadelfio, which caused him to become dis-
traught 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 oc-
cur.” Id. at 1263. Rather, the school relinquished control of
Timijane at the end of the school day, just as it would have
                                     11
done had she not been suspended. 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


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.
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 ed-
ucation 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 in-
juries. 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 pre-
viously threatened suicide, and that he had access to a
firearm at home. Id. In contrast, the court in Hasenfus ex-
plained, 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 threat-
ened 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 rec-
ognized, “the primary responsibility for safeguarding chil-
dren 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 allow-
ing 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 vio-
lated Timijane’s rights under the Equal Protection clause.
Specifically, the Martins (on Timijane’s behalf) contend
that, even though Timijane and Tabitha were similarly situ-
ated, 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 Mar-
tins 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

for the difference in treatment.” Village of Willowbrook v.
Olech, 528 U.S. 562, 564 (2000) (internal quotations omit-
     12
ted). 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 re-
turned his earlier phone call. On the other hand, the dis-
missal 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 moth-
er, but she again said she would take the bus home. Under


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 Consti-
tution. 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 rela-
tions. The right to familial relations concerns the family relation-
ship, not school disciplinary matters. Therefore, we conclude, as
the district court did, that her claim is judged under the rational
basis test.
20                                                 No. 01-3193

these circumstances, and in light of the different timing
involved, Marinack’s differing treatment of Tabitha and
                       13
Timijane was rational.
   The Martins also claim that Timijane was treated more
severely than Tabitha because in addition to a three-day sus-
pension, Marinack ordered her to miss the first three vol-
leyball 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 fol-
lowing year. However, to the extent that Mr. Martin is re-
peating what his wife told him, that evidence is inadmissi-
ble 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-


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 con-
tacting Tabitha’s mother but not Mrs. or Mr. Martin.
No. 01-3193                                                      21

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 en-
titled to summary judgment on Timijane’s Equal Protection
claim.


                               III.
  The tragedy of suicide, especially of a young person, can-
not 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
                                                 14
Timijane’s or the Martins’ constitutional rights, so we must
AFFIRM.


14
   Because we conclude that the facts fail to support a constitu-
tional claim, we need not reach the question of qualified immu-
nity or whether the school district had a custom or policy creat-
ing 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).
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
