In the

United States Court of Appeals

For the Seventh Circuit

No. 00-3980

BRUCE AND SHARON BILLINGS,

the parents of a minor child, B.B.,

Plaintiffs-Appellants,

v.

MADISON METROPOLITAN SCHOOL DISTRICT,

JOHN BURMASTER, NANCY ZABEL, LAURA

MUELLER, SUE PERRY, ANNIE KEITH, ROBERT

WEISNER, SUE BERTHOUEX, AND SHELLY COSGROVE,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 00 C 95---John C. Shabaz, Judge.

ARGUED MAY 7, 2001--DECIDED August 2, 2001

 Before FLAUM, Chief Judge, and RIPPLE and

DIANE P. WOOD, Circuit Judges.

 RIPPLE, Circuit Judge. Bruce and Sharon

Billings brought this action pursuant to

42 U.S.C. sec. 1983 against the Madison

Metropolitan School District ("school

district") and certain employees at John

Muir Elementary School: Principal John

Burmaster and teachers Nancy Zabel, Laura

Mueller, Sue Perry, Annie Keith, Robert

Weisner, Sue Berthouex, and Shelly

Cosgrove. On behalf of their minor child,

B.B., the Billings alleged a violation of

the Equal Protection Clause of the

Constitution of the United States and a

violation of the Wisconsin Constitution.

The district court granted summary

judgment for the defendants. The Billings

now appeal. For the reasons set forth in

the following opinion, we affirm in part

and reverse in part the judgment of the

district court.

I

BACKGROUND

A. Facts

 The Billings’ daughter, B.B., was a

student at John Muir Elementary School in
Madison, Wisconsin, from kindergarten

until the middle of her third-grade year.

The Billings claim that B.B. was denied

equal protection of the law because she

was placed in Ms. Zabel’s third-grade

class based on her race. They also claim

that, B.B., while in Ms. Zabel’s class,

was subjected to disparate treatment

because of her race.

1. Placement

 In the spring of 1999, second-grade

teachers at John Muir met three or four

times to discuss class assignments. The

school district had no policy or practice

regarding the assignment of students to

elementary school classes. The only

instructions to the teachers regarding

student placement came in a memo from

Principal Burmaster on May 4, 1999: 

As we discussed at our staff meeting, the

basic outline for deciding and balancing

class lists will remain the same as in

years past: to the extent possible we

should attempt to balance classes

according to gender, ethnicity, academic

abilities, and special needs while also

considering the Parent Input sheet which

should have been returned to you. Please

consult with Special Ed teachers if you

have concerns or questions about

programming needs of EEN students. You

should have gotten a copy of the "Student

Inventory" card that Kristen mentioned in

your mailbox. I hope that it makes your

job easier. I will try to get to as many

of your placement meetings as possible.

Thank you for your devotion to this

difficult and important task.

Burmaster Aff. para. 8, Ex.E.

 Sue Perry, Annie Keith, and Sue

Berthouex were involved in assigning

second-grade students to third-grade

classes in the spring of 1999. The

teachers prepared an index card for each

of their students. The index card

contained biographical data including

academic abilities, behavioral issues,

special education needs (if any),

ethnicity, neighborhood, gender, reading

level, and math level. The teachers then

used the information on the index cards

in an attempt to assign the children so

the classes reflected the overall

biographical makeup of the third grade at

John Muir. Academic criteria were used to
distribute high and low achieving

students evenly throughout the thirdgrade classes. To fairly distribute the

workload among teachers, the special

education status of a child also was

considered to ensure a roughly equal

distribution of special education

students in each class. The ethnicity of

the students only was considered as a

general guideline to ensure that none of

the classrooms contained a

disproportionate number of minority

students. The neighborhood where the

child resided only was considered to

avoid isolating a child from

studentsliving in his or her particular

neighborhood.

 Although Ms. Perry and Ms. Cosgrove

jointly taught B.B.’s second-grade class,

Ms. Cosgrove did not attend the class

assignment meetings. Consequently, it was

Ms. Perry who recommended that B.B. be

assigned to Ms. Zabel’s third-grade

class. In making her decision, she

reviewed the composition of two other

third-grade classrooms, those taught by

Mary Bostrom and Lesley Wilke-Nadler. Ms.

Perry selected Ms. Zabel’s class for two

reasons: (1) the Billings had expressed a

desire for B.B. to be with a teacher who

had high expectations, and Ms. Perry

believed Ms. Zabel would meet those

needs; (2) B.B. had had some negative

incidents with special education students

assigned to Ms. Bostrom’s and Ms. WilkeNadler’s classrooms. Additionally, Ms.

Zabel’s class was comprised of students

with a broad range of academic aptitudes

from low to above-average.

2. Treatment

 Early in the 1999-2000 school year, Ms.

Zabel divided her class into two groups

of six and three groups of four. She

explained that "in a group of four I

would put two African-Americans

together." Zabel Dep., Vol.II, at 33.

When asked why she seated AfricanAmerican students in pairs, Ms. Zabel

stated, "I think in my education training

sometimes we were told that AfricanAmerican students need a buddy, and

sometimes it works well if they have

someone else working with them because

they view things in a global manner." Id.

Deana Marie Zentner, a student teacher in

Ms. Zabel’s class in the beginning of the

1999-2000 school year, corroborated this

testimony. When asked about the classroom
seating arrangement, Zentner stated that

Ms. Zabel "tried to have two AfricanAmerican students at each cluster and

also did the same with the Hispanic

students." Zentner Dep. at 70-71.

B. District Court Proceedings 

 The Billings were unable to resolve

these issues with the defendants.

Consequently, the Billings brought this

action in district court. In their

complaint, they alleged that both B.B.’s

assignment to Ms. Zabel’s class and her

treatment while in that class violated

the Equal Protection Clause. The

defendants moved for summary judgment,

which the district court granted. The

district court first concluded that,

although race was considered as a factor

in the overall class assignment process,

there was no evidence that B.B. was

placed in Ms. Zabel’s class because of

her race. As a result, the district court

held that the decision to place B.B. in

Ms. Zabel’s class did not deny B.B. equal

protection of the law. Furthermore, the

court stated that there was no evidence

whatsoever to suggest that B.B. was

placed in Ms. Zabel’s class to serve as a

role model for low-income AfricanAmerican students, as the Billings had

alleged. 

 The district court also dismissed the

Billings’ disparate treatment claim that

alleged that Ms. Zabel treated B.B.

differently in the classroom because she

was an African-American. Despite Ms.

Zabel’s own admission in her deposition

that she sat African-American students in

pairs because she believed they needed a

buddy, the district court found that

there was no evidence that B.B. was

treated differently from children of

other races. Additionally, the district

court held that even if Ms. Zabel seated

African-American children together in her

classroom, such a seating arrangement,

without more, was insufficient to support

a claim that B.B. was denied equal access

to educational opportunities. The

Billings now appeal.

 

II

DISCUSSION

A. Standard of Review
 Summary judgment is permissible when

"there is no genuine issue as to any

material fact and . . . the moving party

is entitled to a judgment as a matter of

law." Fed. R. Civ. P. 56(c). This court

reviews the district court’s grant

ofsummary judgment de novo. See Cliff v.

Bd. of Sch. Comm’rs, 42 F.3d 403, 408

(7th Cir. 1994). To survive a motion for

summary judgment, the Billings must make

a showing sufficient to establish each

essential element of their cause of

action for which they will bear the

burden of persuasion at trial. See

Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986); Draghi v. County of Cook, 184

F.3d 689, 691 (7th Cir. 1999). In other

words, if the Billings do not produce

evidence sufficient to sustain a jury

verdict in their favor, we shall affirm

the district court’s grant of the

defendants’ motion for summary judgment.

B. Prima Facie Case for an Equal

Protection Violation

 The Billings allege, on behalf of their

minor daughter, B.B., a violation of the

Equal Protection Clause of the Fourteenth

Amendment. A plaintiff asserting an equal

protection violation must establish that

a state actor has treated him differently

from persons of a different race and that

the state actor did so purposefully. See

Washington v. Davis, 426 U.S. 229, 239-42

(1976); DeWalt v. Carter, 224 F.3d 607,

618 (7th Cir. 2000). The Billings allege

that the defendants violated the Equal

Protection Clause in two separate ways.

We shall now address each of these

claims.

1. Class Placement

 The Billings claim that B.B.’s thirdgrade classroom assignment for the 1999-

2000 school year was based on race. The

district court held that the Billings did

not meet their burden of showing that Ms.

Perry assigned B.B. to Ms. Zabel’s class

based on B.B.’s race. In our view, the

record supports the district court’s

holding. Evidence in the record shows

that Ms. Perry made her decision based on

two race-neutral reasons: (1) B.B.’s

parents had expressed their desire for

B.B. to be with a teacher who had high

expectations, and Ms. Perry believed Ms.

Zabel would meet those needs; (2) Ms.
Perry did not select the two remaining

classrooms because B.B. had experienced

problems with special education students

placed in each of those classrooms.

 These race-neutral reasons will not

support an equal protection violation. A

plaintiff asserting an equal protection

violation must establish that a state

actor purposefully treated him

differently because of his race. See

Coalition to Save Our Children v. State

Bd. of Educ., 90 F.3d 752, 763 (3d Cir.

1996) (holding that, although a

disproportionate number of AfricanAmerican students were placed in special

education, there was no equal protection

violation because the record revealed

that placement was accomplished solely

through the use of race-neutral

criteria). Indeed, the Billings even have

failed to show that there was a

disproportionate number of AfricanAmerican students in the class to which

B.B. was assigned. Ms. Zabel’s class had

slightly more African-American students--

one more than Ms. Bostrom’s, two more

than Mr. Weisner’s, and three more than

Ms. Wilke-Nadler’s--but overall Ms.

Zabel’s, Mr. Weisner’s, and Ms. WilkeNadler’s classrooms each had a total of

twelve minority students. 

 In a further effort to show that B.B.

was placed in Ms. Zabel’s class because

of her race, the Billings maintain that

B.B. was assigned to that section to

serve as a role model for other AfricanAmerican students. The Billings rely

heavily on the Supreme Court’s decision

in Wygant v. Jackson Board of Education,

476 U.S. 267 (1986) (plurality opinion),

to support their claim that such a

motivation for classroom placement

violated B.B.’s equal protection rights. 

 The record shows that B.B. was the only

African-American student in the class who

did not live in Wexford Ridge, a

neighborhood within the school district

where a number of African-American

students lived. She was also the only

African-American student without a low

aptitude in reading and math.

Nonetheless, the district court

determined that, without question, B.B.

was not assigned to Ms. Zabel’s class to

be a role model. We agree. The Billings

provide no evidence that Ms. Perry ever

considered that B.B. could be a role
model for other African-American students

or assigned her to Ms. Zabel’s class for

that reason. On the contrary, as we

already have noted, the record makes

clear that Ms. Perry had race-neutral

reasons for making the placement. 

 The Billings only became concerned about

B.B.’s possible status as a role model

after a telephone conversation between

Principal Burmaster and Mrs. Billings.

During this conversation, which focused

primarily on a disciplinary incident in

Ms. Zabel’s class, Principal Burmaster

mentioned that he hoped B.B. could be a

role model for "these other children."

Sharon Billings Dep. at 111. Principal

Burmaster’s remark is ambiguous as to the

children for whom he hoped that B.B.

could be a role model; the Billings have

provided no evidence justifying their

assumption that the principal was

referring only to African-American

students. Additionally, the principal’s

offhand remark is irrelevant to our

review of the assignment process because

it is undisputed that Principal Burmaster

did not participate in making the

classroom assignments. 

 The Billings have failed to establish a

prima facie case for an equal protection

violation on their claim that B.B. was

assigned to Ms. Zabel’s class on the

basis of race. The district court

correctly determined that summary

judgment ought to be granted to the

defendants on this claim.

2. Equal Education Opportunities

 The Billings also claim that B.B. was

denied educational opportunities equal to

those of white students. They make two

allegations in this regard. First, the

Billings claim that Ms. Zabel did not

give B.B. individualized instruction in a

manner comparable to the assistance she

gave to white students with similar

academic capabilities. The Billings have

provided no evidence that Ms. Zabel gave

white students more challenging

assignments than B.B. Therefore, because

this argument is devoid of supporting

evidence in the record, it warrants no

further discussion. 

 The Billings’ second claim of denial of

equal educational opportunities requires

significantly more analysis. They
maintain that Ms. Zabel treated B.B.

differently because of her race in the

classroom seating arrangement: that Ms.

Zabel required that African-American and

Hispanic students sit in pairs in class.

Although Ms. Zabel’s deposition testimony

is not without ambiguity, this claim

appears supported by both that testimony

as well as her student teacher’s

testimony. Not only did Ms. Zabel admit

that, at an early period in the school

year, she arranged for minority students

to sit in pairs in her classroom, but she

stated that she did so purposefully. Ms.

Zabel explained that she utilized the

race-conscious seating arrangement

because she believed that AfricanAmerican students "need" a partner

because "they view things in a global

manner." Zabel Dep., Vol.II, at 33. 

 "Racial and ethnic distinctions of any

sort are inherently suspect and thus call

for the most exacting judicial

examination." Regents of Univ. of Cal. v.

Bakke, 438 U.S. 265, 291 (1978) (opinion

of Powell, J.). Specifically, in the

school context, the "constitutional

obligation of public officials is to

assign students without regard to race."

Samayoa v. Chicago Bd. of Educ., 807 F.2d

643, 647 (7th Cir. 1986). Ever since the

Supreme Court’s landmark decision in

Brown v. Board of Education, 347 U.S. 483

(1954), it has been established beyond

question that state-imposed racial

classifications in the educational

environment can have a significant effect

on the capacity of the involved children

to profit from their education. In Brown,

a unanimous Supreme Court pointedly

stated that to separate children "from

others of similar age and qualifications

solely because of their race generates a

feeling of inferiority as to their status

in the community that may affect their

hearts and minds in a way unlikely ever

to be undone." Id. at 494. The Court

emphasized that such discriminatory

treatment is of particular concern when

it affects "children in grade and high

schools." Id. Again in Milliken v.

Bradley, 433 U.S. 267, 287 (1977), the

Court wrote:

Children who have been thus educationally

and culturally set apart from the larger

community will inevitably acquire habits

of speech, conduct, and attitudes

reflecting their cultural isolation. They
are likely to acquire speech habits, for

example, which vary from the environment

in which they must ultimately function

and compete, if they are to enter and be

a part of that community.

 The racial classification that occurred

in Ms. Zabel’s class was not the sort of

total racial segregation at issue in

Brown or in Milliken. It was also of

short duration. Yet it did involve

setting apart certain students for

different treatment solely on account of

their race. Although the effect on the

student from this relatively minor and

transitory discrimination might well have

been minimal, especially when compared

with the situations in more pervasive and

enduring educational discrimination, our

faithfulness to constitutional principles

does not permit us to overlook it or to

declare it a de minimis matter. 

 In requiring that African-American and

Hispanic students sit in pairs, Ms. Zabel

may have believed that she was acting in

their best interest. Nevertheless, her

action was based purely on the race of

the student, and differences in treatment

based on race in the classroom must be

regarded as highly suspect. See Adarand

Constructors, Inc. v. Pena, 515 U.S. 200,

224-27 (1995); see also Majeske v. City

of Chicago, 218 F.3d 816, 819 (7th Cir.

2000), cert. denied, 121 S. Ct. 779

(2001). To survive strict scrutiny, a

race-based classification must promote a

compelling government interest. See

Majeske, 218 F.3d at 820; Wittmer v.

Peters, 87 F.3d 916, 918-19 (7th Cir.

1996). The state actor also must present

evidence that the race-based

classification is narrowly tailored to

serve a compelling state interest. See

Adarand, 515 U.S. at 227; City of

Richmond v. J.A. Croson Co., 488 U.S.

469, 493-94 (1989); United States v.

Paradise, 480 U.S. 149, 167 (1987)

(plurality opinion); see also DeWalt, 224

F.3d at 618. This "beady-eyed review,"

Chicago Firefighters Local 2 v. City of

Chicago, 249 F.3d 649, 654 (7th Cir.

2001), is utilized because race-based

classifications "threaten to stigmatize

individuals by reason of their membership

in a racial group and . . . incite

racial hostility," Shaw v. Reno, 509 U.S.

630, 643 (1993).

 It is well-settled that, under very
limited circumstances, a governmental

entity may employ a racial

classification. A governmental entity

"has a compelling interest in remedying

its previous discrimination and the

agency may use racial preferencing to

rectify that past conduct." Majeske, 218

F.3d at 820; see also McNamara v. City of

Chicago, 138 F.3d 1219, 1222 (7th Cir.

1998). Before employing such a remedy,

however, the government must show

evidence of past discrimination. See

McNamara, 138 F.3d at 1222. When

officials have violated the obligation to

treat students without regard to race, "a

court may require them to take race into

account yet again to undo the racial

identities." Samayoa, 807 F.2d at 647.

School districts may undertake such a

remedy on a voluntary basis to correct

past discriminatory practices. See

McDaniel v. Barresi, 402 U.S. 39, 41

(1971). Thus, the consideration of racial

factors in undoing unconstitutional

segregation is permissible. See Swann v.

Charlotte-Mecklenburg Bd. of Educ., 402

U.S. 1, 28 (1971); Banks v. Muncie Comm.

Schs., 433 F.2d 292, 294 n.4 (7th Cir.

1970); United States v. Sch. Dist. 151 of

Cook County, 404 F.2d 1125, 1135 (7th

Cir. 1968). 

 This record provides no basis for

justifying the racially based seating

arrangement other than Ms. Zabel’s

reliance on a stereotypical notion that

African-American students "view things in

a global manner." No evidence of record

indicates that this arrangement was

implemented to rectify past

discriminatory conduct that had left its

effect on these students. On this record,

without any justification other than Ms.

Zabel’s stereotypical notion as to how

African-American children learn, her

action cannot be justified, and,

consequently, summary judgment is

inappropriate. It may be that, in further

proceedings, Ms. Zabel will be able to

explain in a more satisfactory manner the

reasons for her adoption of the racially

based buddy system seating plan. Perhaps

her decision was based on her

professional assessment that, because of

past discriminatory practices, students

in this particular school had difficulty

in adjusting to a racially diverse

educational environment. However, we

cannot accept as adequate her conclusory

explanation. We must decide the case on
the record before us. 

C. Qualified Immunity

 An official entitled to qualified

immunity is not only immune from personal

liability but also from suit. See Saucier

v. Katz, 121 S. Ct. 2151, 2156 (2001).

Qualified immunity is available only to

officials with discretionary or policymaking authority who are acting in their

official capacities. See Jacobs v. City

of Chicago, 215 F.3d 758, 766 (7th Cir.

2000). Such defendants are not subject to

liability unless their actions violate

clearly established statutory or

constitutional rights then known to a

reasonable officer. See Ulichny v. Merton

Cmty. Sch. Dist., 249 F.3d 686, 706 (7th

Cir. 2001). 

 The Supreme Court recently has

reemphasized that entitlement to

qualified immunity is determined by a

two-step, sequential analysis. See

Saucier, 121 S. Ct. at 2156; see also

Denius v. Dunlap, 209 F.3d 944, 950 (7th

Cir. 2000). First, we ask if the facts

alleged show the state actor’s conduct

violated a constitutional right when

viewed in the light most favorable to the

party asserting the injury. See Saucier,

121 S. Ct. at 2156. If the facts alleged

do not establish a constitutional

violation, there is no need to proceed to

the second step of the qualified immunity

analysis. See id. "On the other hand, if

a violation could be made out on a

favorable view of the parties’

submissions, the next, sequential step is

to ask whether the right was clearly

established." Id.

 At this point in the litigation, our

focus must be on whether Ms. Zabel can

assert, on the record before us,

qualified immunity. In the earlier

section of our analysis, we determined

that the present record would support a

determination that Ms. Zabel’s action in

mandating that African-American children

sit in pairs was violative of the Equal

Protection Clause of the Fourteenth

Amendment. We therefore shall proceed to

the second step of the qualified immunity

analysis. We must determine whether

B.B.’s right to be treated equally in the

classroom--specifically the right to be

free from race-based seating

arrangements--was clearly established
when Ms. Zabel implemented the seating

arrangement. 

 In determining whether a right was

clearly established at the time the

defendant acted, "the right

allegedlyviolated must be defined at the

appropriate level of specificity before a

court can determine if it was clearly

established." Wilson v. Layne, 526 U.S.

603, 615 (1999) (emphasis added). The

Supreme Court has stated that the

"relevant, dispositive inquiry is whether

it would be clear to a reasonable officer

that his conduct was unlawful in the

situation he confronted." Saucier, 121 S.

Ct. at 2156. In undertaking this inquiry,

the particular facts and the

circumstances confronting the official

must be considered. "It is not necessary

for liability, however, that an identical

factual situation had been legally

decided adverse to the officer." Ulichny,

249 F.3d at 706; see also Finn v. New

Mexico, 249 F.3d 1241, 1250 (10th Cir.

2001) ("[T]here need not be binding

precedent on ’all fours’ with the current

case . . . we require some, but not

identical, correspondence between the

cases cited and the factual situation in

the case at hand."); Johnson v. Newburgh

Enlarged Sch. Dist., 239 F.3d 246, 251

(2d Cir. 2001) ("[T]he absence of legal

precedent addressing an identical factual

scenario does not necessarily yield a

conclusion that the law is not clearly

established.").

 Although the particular buddy system at

issue here is, in all its particulars,

perhaps unique to Ms. Zabel’s classroom,

it is, in essence, a form of race-based

seating that has been condemned by the

Supreme Court as long ago as its decision

in McLaurin v. Oklahoma State Regents for

Higher Education, 339 U.S. 637 (1950)./1

 This initial condemnation of race-based

seating in a school environment has been

reinforced on numerous occasions, most

notably in the decisions that we have

discussed earlier in this opinion that

make clear that state educators have the

obligation to make student assignments in

a race-neutral manner in the absence of a

compelling government interest. Even

then, such a remedial race-based

distinction must be narrowly tailored to

achieve that compelling government

interest. Certainly, as a public school
educator, Ms. Zabel ought to have known

of these well-established restrictions on

the use of race as a criteria. Yet, the

record contains not a hint that, in

deciding to implement her buddy system,

she was attempting to address the past

effects of discrimination that may have

required this sort of attention to the

present needs of her students. Rather,

the record affirmatively indicates that

she relied on a stereotypical

generalization about the way AfricanAmerican children learn. 

 Accordingly, on this record, we cannot

say that Ms. Zabel is entitled to

qualified immunity. We do not preclude

the possibility that, on a more developed

record, she may be able to demonstrate,

without contradicting her earlier

deposition testimony, that it was

reasonable to believe that the

implementation of this seating plan was

permissible. However, for purposes of

disposing of the motion before us, we are

bound by the record made by the parties

in the district court, and, on that

record, we cannot say that qualified

immunity is warranted. 

D. School District Liability

 A municipality may not be held

vicariously liable, under sec. 1983, for

the unconstitutional acts of its

employees. See Monell v. Dep’t of Soc.

Servs., 436 U.S. 658, 694 (1978); Smith

v. Metro. Sch. Dist., 128 F.3d 1014, 1027

(7th Cir. 1997). To establish that a

municipality has violated an individual’s

civil rights under sec. 1983, the

plaintiff must show one of the following:

(1) that the city had an express policy

that, when enforced, causes a

constitutional deprivation; (2) that the

city had a widespread practice that,

although not authorized by written law or

express municipal policy, is so permanent

and well-settled as to constitute a

custom or usage within the force of law;

or (3) that the plaintiff’s

constitutional injury was caused by a

person with final policy-making

authority. See McCormick v. City of

Chicago, 230 F.3d 319, 324 (7th Cir.

2000).

 Of these three possible bases for

finding the school district liable, two

clearly are not applicable. Regarding the
first option, it is undisputed that the

school district does not have an express

policy or practice of seating AfricanAmerican or Hispanic children in pairs.

On the contrary, both Ms. Zabel and her

student teacher, Zentner, testified that

it was Ms. Zabel’s personal preference

for each minority student to have a

partner. Therefore, the school district

cannot be found liable under the first

option. 

 With respect to the third option, it is

uncontested that Ms. Zabel does not have

final decision-making authority as a

third-grade teacher. Although Ms. Zabel’s

job description was not provided in the

record, elementary school teachers are

uniformly required to instruct their

students and conduct their classrooms in

a manner consistent with school board

policy. Consequently, Ms. Zabel is not a

municipal policymaker. 

 The final option under which the school

district can be held liable also falls

short. In assessing whether such a

pervasive custom or policy exists, we

have required the plaintiff to present

facts showing that policymakers knew of

the conduct or that the conduct was so

widespread that they should have known.

See Latuszkin v. City of Chicago, 250

F.3d 502, 505 (7th Cir. 2001); Bennett v.

City of Slidell, 735 F.2d 861, 862 (5th

Cir. 1984) ("Actual or

constructiveknowledge of such custom must

be attributable to the governing body of

the municipality or to an official to

whom that body had delegated policymaking authority.").

 The Billings are unable to show that Ms.

Zabel’s racial seating arrangement was

sufficiently well-established to

constitute a custom. The record will not

support a determination that the racebased seating arrangement used by Ms.

Zabel was so widespread and well-settled

as to constitute a custom that fairly

represents municipal policy. A classroom

seating arrangement implemented by one

third-grade teacher during the beginning

of the 1999-2000 school year hardly can

be considered widespread. Therefore, the

Billings have failed to provide us with

sufficient evidence to justify holding

the school board liable because its

members had either actual or constructive

knowledge. As a result, the school
district cannot be held liable for Ms.

Zabel’s race-based seating arrangement.

Conclusion

 We affirm the district court’s grant of

summary judgment with respect to the

claim that the classroom assignment

process was discriminatory. On this

record, however, we must conclude that a

grant of summary judgment for Ms. Zabel

on the issue of her seating arrangement

cannot be sustained. Furthermore, on this

record, Ms. Zabel is not entitled to

qualified immunity. Lastly, the school

district cannot be held liable for Ms.

Zabel’s use of the seating arrangement.

All defendants with the exception of Ms.

Zabel may recover their costs in this

court.

AFFIRMED in part, REVERSED

and REMANDED in part

FOOTNOTE

/1 In McLaurin v. Oklahoma State Regents for Higher

Education, 339 U.S. 637 (1950), the AfricanAmerican plaintiff was a graduate student who

claimed he had been denied equal educational

opportunities because he was required to sit in

special seats or at a special table designated

for African-Americans. The Supreme Court noted

that the special treatment McLaurin received

because of his race set him apart from the other

students. See id. at 641. As a result, the Court

stated that McLaurin was "handicapped" in his

pursuit of an education, and "his ability to

study, to engage in discussions and exchange

views with other students" was impaired. Id.

Consequently, the Court held that the Fourteenth

Amendment prohibited the state from treating

students differently because of their race. See

id. at 642. Based on this analysis, the Supreme

Court then concluded that African-American students "must receive the same treatment at the

hands of the state as students of other races."

Id.