“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.
“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.”
Affirmed in part, and reversed in part.
Appeal from the United States District Court for the Western District of Wisconsin, Shabaz, J., Ripple, J.