Flores

Plaintiffs are former students in the Morgan Hill Unified School District who have sued the school district, administrators, and school board members under 42 U.S.C. § 1983 . Plaintiffs claim that the defendants’ response or lack of response to complaints of student-to-student anti-homosexual harassment denied them equal protection. Defendants moved for summary judgment on the ground of qualified immunity. The district court denied summary judgment.

When the defendants first appealed the denial to this court, we remanded the case for reconsideration in light of the Supreme Court’s intervening decision in Saucier v. Katz, 533 U.S. 194 , 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001). See Flores v. Morgan Hill Unified Sch. Dist., 18 Fed.Appx. 646, 648 (9th Cir.2001). The district court then performed an analysis pursuant to Saucier and again denied defendants’ motion for summary judgment.

Defendants appeal again. They contend that they are entitled to immunity from suit because the plaintiffs have not shown that the defendants acted with the improper motive required to establish a constitutional violation. Defendants also argue that at the time of the alleged harassment, the law was not…