Billings v. Madison Metropolitan School District

• Decision Date: 02 August 2001
• Docket Number: No. 00-3980,00-3980
• Citation: 259 F.3d 807
• Parties: (7th Cir. 2001) 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
• Court: U.S. Court of Appeals — Seventh Circuit

Page 807

259 F.3d 807 (7th Cir. 2001)

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.

No. 00-3980

In the United States Court of Appeals For the Seventh Circuit

ARGUED MAY 7, 2001

DECIDED August 2, 2001

Appeal from the United States District Court for the Western District of Wisconsin. No. 00 C 95--John C. Shabaz, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] 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 students living 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 of summary 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...