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 third-
grade 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. Wilke-
Nadler’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 African-
American students in pairs, Ms. Zabel
stated, "I think in my education training
sometimes we were told that African-
American 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 African-
American 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 African-
American 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 third-
grade 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 African-
American 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 African-
American 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. Wilke-
Nadler’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 African-
American 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 African-
American 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 policy-
making 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 African-
American 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 African-
American 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 policy-
making 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 race-
based 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 African-
American 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 stu-
dents "must receive the same treatment at the
hands of the state as students of other races."
Id.
