United States Court of Appeals
For the First Circuit
____________________
No. 96-1623
DOUGLAS E. YEO, Individually and on Behalf of His Children and as Chairman
of the Lexington Parents Information Network,
Plaintiff, Appellant,
v.
Town of LEXINGTON, Jeffrey Young, Superintendent, David Wilson, Principal,
Samuel Kafrissen, Karen Mechem and Joseph Dini, Chairman, John Oberteuffer,
Lois Coit, Susan Elberger and Barrie Peltz, Individually and as They Are
Members of the Lexington School Committee,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
____________________
Before
Torruella, Chief Judge,
Bownes, Senior Circuit Judge,
Selya, Boudin, Stahl, and Lynch,
Circuit Judges.
____________________
John W. Spillane, with whom John J. Spillane and Gregory D. Smith were on
brief for appellant.
Adam P. Forman, with whom Lois Brommer Duguette, Sarah A. Olivier, and
Testa, Hurwitz & Thibeault, LLP were on brief for appellees.
S. Mark Goodman, Michale C. Heistand, Robert A. Bertsche, and Hill & Barlow
for the Student Press Law Center, National Scholastic Press Association,
Journalism Education Association, Scholastic Journalism Division of the
Association for Education in Journalism and Mass Communication, Columbia
Scholastic Press Advisers Association, New England Scholastic Press
Association, and Yankee Press Education Network; Dwight G. Duncan for the
Massachusetts Family Institute; James C. Heigham, and Choate, Hall & Stewart
for Massachusetts Newspaper Publishers Association; Gwendolyn H. Gregory,
Melinda L. Selbee, Timothy B. Dyk, John Bukey, Jones, Day, Reavis & Pogue
for the National School Boards Association, Illinois Association of School
Boards, and California School Boards Association's Educational Legal
Alliance; Michael J. Long, Rosann DiPietro, and Long & Long for the
Massachusetts Association of School Superintendents, on briefs amici curiae.
____________________
December 9, 1997
____________________
OPINION EN BANC
____________________
LYNCH, Circuit Judge. This case, involving speech interests on both sides,
arises from the decision of two public high school student publications --
the newspaper and yearbook -- not to publish an advertisement. The
advertisement promoted sexual abstinence and was proffered by a parent,
Douglas Yeo, in the aftermath of a decision by the Lexington, Massachusetts
School Committee to make condoms available to students as a public health
matter. Yeo had campaigned against the condom distribution policy and lost.
The two high school student publications declined to publish the
advertisement on the grounds that each had a policy, albeit unwritten, of
not running political or advocacy advertisements.
The civil rights action brought by Yeo against the Town, the School
Committee, Superintendent and school officials was terminated on defendants'
motion for summary judgment. The district court judge concluded that no
state action had been shown. A panel of this court, this judge dissenting,
reversed, holding that summary judgment should be entered for Yeo on his
claims that there was state action, that each student publication was a
public forum, and that the decisions not to publish were impermissible view
point discrimination. 1997 WL 292173 (1st Cir. June 6, 1997). This court
granted en banc review[1] and withdrew the panel opinion. The en banc court
now affirms the decision of the district court entering summary judgment for
defendants on the ground that state action has not been shown.
I. The Facts
We review the facts in the light most favorable to Yeo, the party opposing
summary judgment, drawing all reasonable inferences from the record in his
favor. Swain v. Spinney, 117 F.3d 1, 2 (1st Cir. 1997).
A. The Publications
This case involves two distinct Lexington High School (LHS) student
publications, the LHS Yearbook and the LHS Musket. The Yearbook was operated
entirely by a staff of about sixty students; all editorial, business, and
staffing decisions were made by students. During the 1993-94 academic year,
this staff was headed by two co-editors-in-chief, Dow-Chung Chi and Natalie
Berger. Karen Mechem, a LHS teacher, was the Yearbook faculty advisor.
Mechem was paid a stipend of less than $2,000 for that activity. Apart from
Mechem's stipend and the use of LHS buildings and facilities, the Yearbook
is financially independent from the school and is funded entirely through
the sale of the books to students and advertising.
Like most yearbooks, the LHS Yearbook included pictures of seniors and other
students, sections on sports, academics, and activities, and an
advertisement section. This advertisement section was largely comprised of
congratulatory or commemorative ads purchased by students and their
families. As the Yearbook advertising order form suggested, student ads
might include "[b]aby pictures, group photos taken in the setting of your
choice, [or] pictures of meaningful people and/or places." A few
advertisements were also sold to local businesses; most of these included
congratulatory messages to the graduating class.
During the 1993-94 academic year, the Yearbook's unwritten policy was to
publish advertisements from those local businesses which the students
frequented or had some relationship with during their high school years. In
keeping with this policy, students selling ads targeted those businesses
that fit the Yearbook theme of fond memories. The Yearbook's policy was not
to publish any political or advocacy advertising, including ads from
candidates for student government.[2] The purposes of this policy were to
ensure that the advertising section of the Yearbook was congruent with the
rest of the publication and to prevent the Yearbook from becoming a bulletin
board for competing issue groups or candidates in a way that would interfere
with the commemorative purpose of the Yearbook.
The LHS Musket is a student-written and edited newspaper that is published
four or five times a year. All editorial, operational, and staffing
decisions are made by the student editors. During the 1993-94 academic year,
Ivan Chan served as the Musket's editor-in-chief, Dong Shen was the business
manager, and Samuel Kafrissen was the faculty advisor. Students do not seek
or obtain the approval of the faculty advisor for any editorial or
operational decisions. Kafrissen is paid a stipend of $1,373 by LHS, and the
Musket receives about $4,500 a year from the School Committee. The Musket
has no physical facilities at LHS, other than a mail box; all the layout is
done at editors' homes. The Musket typically includes news articles about
the high school, features, editorials, letters to the editor, sports
coverage, and humor columns, all written, edited, and produced by students.
The Musket is described in literature distributed to the student body as
being a "student run newspaper" which is "written, edited and distributed by
students." The editorial page bears a legend stating expressly that the
opinions stated there are those of the student editors or newspaper staff
and not of school policy.
Not every issue of the Musket contains advertising. Those that do contain
two or three small ads from businesses that cater to student tastes. During
the 1990s, those advertisers have included a bookstore, a video store, a
music store, a driving school, a deli, a hair salon, SAT prep courses, and,
around prom time, a tuxedo rental store and a dress shop. For the 1993-94
school year, the Musket created an "Advertisement Form" for potential
advertisers. The form stated that: "The award winning Lexington High School
student newspaper provides area businesses and non-profit organizations the
opportunity to place advertisements in the Musket." The form did not state
that ads were subject to editorial approval, although it did note that,
depending on the issue, ad size might have to be adjusted and ads might have
to be edited, by the paper's staff, for length. The form also stated that
" [p]ayment . . . for an ad will occur only if and after we publish an ad."
(emphasis added).
Pursuant to an unwritten policy, the Musket has never accepted advocacy or
political advertising, including that from candidates for student
government. The purpose of this policy was to prevent the Musket from
becoming a "bulletin board" for warring political ideas. The students also
rejected the idea of allowing cigarette ads in the paper for fear that such
advertising would be read as an endorsement of smoking.
B. Yeo's Submission of Advertisements
In 1992, the Lexington School Committee adopted a policy making condoms
available to students at LHS without parental permission. This measure was
the subject of political controversy in Lexington, and Douglas Yeo, a town
resident and parent, emerged as a leading opponent of condom distribution
and other "safe sex" policies. Yeo headed a group called "Lexington Citizens
for Responsible School Policy," which sponsored a non-binding town-wide
referendum on the School Committee's condom policy.
The Musket ran both news articles and editorials on the policy and the
referendum. Yeo thought these articles misrepresented his group's position.
In January 1993, Yeo requested a meeting with LHS Principal David Wilson
concerning his grievance. Wilson suggested that Yeo submit a letter to the
editor correcting the alleged inaccuracies, but advised Yeo that any
decisions regarding corrections would have to be made by the student
editors. Yeo did not contact the student editors. In March 1993, the voters
of Lexington approved the condom distribution policy.
Subsequently, in May 1993, Yeo founded the Lexington Parents Information
Network ("LEXNET"). LEXNET's stated goal was to distribute information about
public education to parents via newsletters and meetings.
1. The Yearbook Ad
On November 1, 1993, Yeo, as Chairman of LEXNET, submitted a full page ad to
the 1994 LHS Yearbook. The ad copy read:
We know you can do it!
ABSTINENCE: The Healthy Choice
Sponsored by: Lexington Parents Information Network(LEXNET) Post Office Box
513, Lexington Massachusetts 02173.
The ad was accompanied by a check for $200.00.
Mechem, the Yearbook advisor, acknowledged receipt of the check and placed
the ad in a drawer without giving it a second thought. In keeping with
Yearbook procedures, the LEXNET ad was "warehoused" in a drawer with other
ads pending submission to the publisher for the printing of proofs. Natalie
Berger, a senior and co-editor-in-chief, noticed the ad in the drawer and
felt that the ad was "out of context" with the advertising section of the
Yearbook. However, she decided to postpone a publication decision until she
saw the ad in proof form, which was typically when critical editorial
decisions were made.
In January 1994, a large number of proofs, including those of Yeo's ad, came
back from the printer. All the student editors attended an editorial meeting
at which they looked over the various ads and copy. After much discussion,
the editors decided that Yeo's ad was a political advocacy statement that
was out of context with the rest of the Yearbook and that had no place in
that publication. Although the students decided to reject the ad as drafted,
they still wished to include a message from LEXNET if the ad could be
rewritten to conform with the rest of the Yearbook. The students did not
consult with Mechem or any other member of the faculty or administration
prior to making this decision.
The Yearbook editors asked Mechem to notify Yeo of their decision. The
students also asked Mechem to convey their request that Yeo's ad be revised
to express a congratulatory graduation message. On February 1, 1994, Mechem
called Yeo, and told him that the students would like to have the ad
rewritten. Yeo refused to revise the ad and threatened to sue the Yearbook
unless his ad was published as submitted.
The student editors discussed the issue again, and decided to stand by their
original decision to reject Yeo's ad. They asked Mechem to write to Yeo,
returning his check. On February 4, Mechem wrote to Yeo:
Because of the non-controversial nature of the advertising section of the
yearbook, we have decided not to print the advertising you have submitted.
Please accept my apologies for the inconvenience that our reviewing
procedure may have caused.
A $200 check was enclosed. Mechem told Principal Wilson about Yeo's ad and
the students' decision to reject it.
Yeo replied by fax on February 13, 1994, writing:
Based on our understanding of the right of equal access and free speech, we
do not accept your rejection of our ad and ask that you reconsider your
decision to censor it. We will not be cashing your check at this time.
Should you not reverse your decision, we will avail ourselves of every
possible avenue open to us in order to protect our rights as advertisers.
2. The Musket Ad
On January 3, 1994, Yeo wrote to Dong Shen, a senior and the business
manager of the Musket, requesting information about advertising procedures
and rates. The letter was not on LEXNET stationary and did not identify Yeo
as a member of that group. Receiving no reply, Yeo wrote to Shen again on
January 20, requesting the information "as soon as possible," and copying
Ivan Chan, the editor-in-chief, on the letter..
On January 25, Shen wrote to Yeo, providing the requested information and
taking full personal responsibility for the delayed response. Shen concluded
by noting, "Of course ads are still subject to the approval of the editorial
board."
On February 1, 1994, Yeo submitted an ad to the Musket. The text was
identical to the Yearbook ad previously submitted, except that, above
LEXNET's address, it contained the line: "For accurate information on
abstinence, safer sex and condoms, contact:[LEXNET]."
The student editors of the Musket discussed the ad extensively. In
mid-February, they met and decided that Yeo's ad constituted a political
statement that they would not run as a matter of policy. On February 24,
1994, Shen wrote to Yeo:
After careful consideration of your advertisement from LEXNET, the Musket
came to the difficult decision of not printing it. In no way did we want to
limit your right to express your opinion, but we could not accept a
political statement as an advertisement. Our own advertisement policy
dictates so for good reasons. If we were to accept a politically aligned
advertisement, we at the Musket would feel obligated to accept other
political statements that might come our way. We do not wish to put
ourselves in such position. Ultimately Ad space is not a public forum and
for that reason the Musket reserves the right to select what Advertisements
it chooses to print. If you have any question feel free to contact the
Musket.
The decision was made, and the reply written, by the student editors without
consulting Kafrissen, the Musket faculty advisor, or requesting his, or any
other adult's, approval. In fact, Kafrissen did not even know about the ad's
submission until the time of the editorial meeting, and did not see the ad
or the students' response until after the reply had been sent.
Sometime the next week, Principal Wilson called Kafrissen and informed him
that Lexington's Town Counsel, Norman Cohen, had been contacted by Yeo's
lawyer; the lawyer had threatened to sue the town and the school authorities
if the ad was not run. Cohen thought that it would be best to avoid a
lawsuit and requested that the students publish Yeo's ad. Kafrissen and
Wilson agreed to look into the legal issues in greater depth and to discuss
the matter with the students. On March 1, 1994, the student editors of the
Musket met with Kafrissen. Kafrissen informed them of Yeo's actions.
Although a number of students at the March 1 meeting supported Yeo's
pro-abstinence views, they were concerned that the Musket might turn into a
bulletin board for advocacy on lifestyle issues. Additionally, the students
were uncomfortable with having to run an ad because someone had threatened
to sue them if they did not. The editors once again decided to reject the
ad. They asked Kafrissen to contact Yeo and to invite him to present his
views in a "letter to the editor."
Kafrissen, on behalf of the Musket, wrote to Yeo that day.. In the letter,
Kafrissen suggested that Yeo write a letter to the editor:
We have long considered the Letters to the Editor section of the Musket to
be a public forum. Historically we have accepted and printed on these pages
any and all "short and tasteful" letters that have come to us. We would
welcome such a letter from your organization in which you would probably be
able to explicate your position on abstinence more fully than you would be
able to in an ad format. We have heard that you feel that school
publications have prevented you from presenting your message to the student
body. Therefore we suggest that you use the medium of a letter to get your
message across in greater detail, and without charge.
The letter concluded by noting that, if Yeo were successful in forcing the
Musket to print the ad, this would have the negative consequence of removing
editorial control from the student staff.
Yeo declined the offer on March 7 in a letter to Kafrissen. In that letter,
Yeo explained that his organization decided to sponsor the ads for two
reasons:
Firstly, we had a simple message we wanted to get out that would affirm
abstinent students in the LHS community. . . . There is nothing
controversial or political in our message. Secondly, I wanted to see if the
Musket and Yearbook would react as I thought they would. They did. In
spades.
Accordingly, Yeo declined to write a letter to the editor, which, he felt,
could not make the point as concisely as an ad could. Yeo insisted that the
ad be run as submitted, "as is our legal right," and concluded, "You don't
have to agree with it. You don't even have to like it. You just have to
print it. TouchÈ."
C. The Administration's Response and the Students' Decisions
On March 1, Yeo met with Principal Wilson to discuss the ads. Yeo believes
that, at that meeting, Wilson assured him that the ads would be printed, and
told him that the Town Attorney had advised publication.
Meanwhile, as the controversy heightened, the students and faculty alike
were seeking advice from various sources. Mechem told Wilson that Dow-Chung
Chi, the Yearbook's co-editor-in-chief, had asked her: "If we don't print
the ad, what law are we breaking?" In an attempt to answer his question,
Mechem talked with Wilson, Kafrissen, and the Student Press Law Center in
Washington, D.C. Several of the student editors of the Musket and the
Yearbook sought advice from the Student Press Law Center and the Civil
Liberties Union of Massachusetts, as well as from attorneys they knew
personally. The students were told by these various sources that, under the
federal Constitution and Massachusetts law, student editors had the right to
decide what was printed in their publications.
On March 11, 1994, LHS officials and student editors met in the office of
the Superintendent of Schools, Jeffrey Young. Yearbook editors-in-chief
Berger and Chi, Musket editor-in-chief Chan, advisors Kafrissen and Mechem,
Superintendent Young and Principal Wilson attended. Young asked questions to
determine what the students' reasoning was, and to determine that they had
engaged in a thoughtful process prior to the meeting. The administrators and
faculty were impressed with the way the students outlined the issues. Young
concluded by stating that he would like to do further research and to obtain
legal advice.
In mid-March, Musket editor-in-chief Chan was approached by a group of
students who were offended by Yeo's efforts and who wished to place a
" counter ad" in the Musket. The proposed ad looked exactly like Yeo's ad
except that, in place of "Abstinence: The Healthy Choice," it read "Safe
Sex: The Healthy Choice." Chan decided to reject the counter-ad, and
informed the staff that it would not be published.
On March 13, Chan called a meeting of the entire Musket staff; Kafrissen was
not invited and did not attend. At that meeting, Chan briefed the students
on the events surrounding the submission of Yeo's ad. The student staff
unanimously opposed publication of Yeo's ad.
On March 18, a second meeting was held in Superintendent Young's office. In
addition to the prior participants, Lexington School Committee members
attended. (LHS Assistant Principal Lawrence Robinson attended in Principal
Wilson's stead). The Musket and Yearbook editors reiterated their refusal to
run Yeo's ads. The school officials and School Committee members warned the
students of the possible consequences of their decision, including
litigation, and described the potentially unpleasant media exposure the
students could expect. Although the students felt that the school officials
wanted them to print the ads, the officials maintained that it was the
students' decision to make. The students were repeatedly advised that the
ultimate decision about publication of the advertisement was theirs to make
and the school administration would stand by their decision.
Following the March 18th meeting, Chan held several further discussions with
individuals and groups from the Musket's staff. Finally, with the staff's
support, Chan conclusively decided not to run Yeo's ad as a matter of
policy.
On April 11, 1994, the Superintendent again met with the Musket staff and
again told them the decision was theirs. Throughout Young's tenure as
Superintendent, the Musket has been operated as an independent student-run
newspaper and he has never authorized any school official to interfere with
the students' decision on what to publish. Yeo offers no evidence to the
contrary.
As for the Yearbook, Chi and Berger asked Mechem to invite Yeo, on the
students' behalf, to a meeting at which alternatives could be discussed. Yeo
wrote to Mechem on March 28, informing her that, on the advice of counsel,
he would not be able to meet with the student editors, and requesting that
all further inquiries be addressed to his lawyer at the Rutherford Institute
in Virginia.
Berger then called a meeting of all the Yearbook section editors. Mechem
attended the beginning of the meeting and urged the students to consider the
school officials' advice. Mechem then left the meeting. The students
discussed the issues raised at the March 18 meeting. The students reaffirmed
their decision to reject Yeo's ad. Chi and Berger then drafted a memo to
Superintendent Young and the School Committee. It concluded:
After much discussion and deliberation, the reasons for our decision are as
follows. The nature of the advertisement, which promotes a style of life,
regardless of the message, does not coincide with that of the rest of the
advertisement section of the yearbook. The inclusion of this type of
advertisement would also establish an unsuitable precedent for the future of
the yearbook.
This litigation followed.
During the 1994-95 school year, the new student editors of the Yearbook
decided not to accept any advertisements other than personal notes from
parents and students. Yeo resubmitted his ad in September 1994, but it was
rejected under the new policy. The 1994-95 Musket staff drafted explicit
" Advertisement Policies and Procedures," to be distributed with
advertisement forms, which states the type of advertisements, including
those from "political organizations, referendum issues, advocacy groups,
[and] public service organizations," that the Musket will not print.
The newspaper in its news pages gave extensive coverage to the controversy
between it and Yeo, thus providing Yeo with coverage of his pro-abstinence
position.
II. Procedural History
Yeo's action under 42 U.S.C.. ß 1983 alleges that the refusal of the two
publications to print the advertisements violated his rights to free speech
and equal protection under the U.S. Constitution and Art. 16 of the
Massachusetts Declaration of Rights. Yeo sued the Town, School Committee,
Superintendent, Principal, and faculty advisers but did not name the
students as defendants.
The defendants moved for summary judgment on various grounds, including,
inter alia, the lack of state action, that no public forum had been created,
and qualified immunity. Yeo opposed summary judgment, but did not submit a
statement of disputed facts in opposition to summary judgment as required by
Local Rule 56.1 of the District of Massachusetts. Yeo conceded at his
deposition that he had no personal knowledge of the decision making
processes followed by the Yearbook and the newspaper in rejecting his
advertisement. The district court granted summary judgment on the state
action issue without reaching the other issues. We affirm on the same
ground.
III. State Action
The essential state action inquiry is whether the government has been
sufficiently involved in the challenged actions that it can be deemed
responsible for the plaintiff's claimed injury.[3] If there is no state
action, then the court may not impose constitutional obligations on (and
thus restrict the freedom of) private actors.[4]
This is a situation in which the government actors -- the school officials
acting under a statute[5]The right of students to freedom of expression in
the public schools of the commonwealth shall not be abridged, provided that
such right shall not cause any disruption or disorder within the school.
Freedom of expression shall include without limitation, the rights and
responsibilities of students, collectively and individually, . . . to write,
publish and disseminate their views . . . . No expression made by students
in the exercise of such rights shall be deemed to be an expression of school
policy and no school officials shall be held responsible in any civil or
criminal action for any expression made or published by the students.
Mass. Gen. Laws ch. 71, ß 82; see also Pyle v. School Comm., 667 N.E..2d 869
(Mass. 1996) (holding that the statute protects even vulgar speech so long
as no disruption or disorder results). We express no view on whether state
law would have permitted the school to override the students' decisions. As
we explain, the state's student speech law may be a factor in the state
action inquiry, but the issue for us is ultimately one of federal
constitutional law. of the Commonwealth of Massachusetts -- have chosen to
grant editorial autonomy to these high school students. The state action
analysis is thus placed squarely in a very complex and changing area of law.
The modern state action decisions of the Supreme Court do not rely on a
single analytic model applied regardless of the fact patterns involved. As
this Court once observed, the "state action inquiry is 'necessarily
fact-bound.'" Ponce v. Basketball Federation of the Commonwealth of Puerto
Rico, 760 F.2d 375, 377 (1st Cir. 1985) (quoting Lugar v. Edmondson Oil Co.,
457 U.S. 922, 939 (1982)). The analytic model used must take account of the
specific constitutional claim being asserted, here, one under the First
Amendment.[6] Cf. Polk County v. Dodson, 454 U.S. 312 (1981) (state action
inquiry shifts depending on constitutional question asked). "Faithful
adherence to the 'state action' requirement . . . requires careful attention
to the gravamen of the plaintiff's complaint." Blum v. Yaretsky, 457 U.S.
991, 1002 (1982). As the Supreme Court has noted:
We recognize that the First Amendment, the terms of which apply to
governmental acts ordinarily does not itself throw into constitutional doubt
the decisions of private citizens to permit, or to restrict, speech -- and
this is so ordinarily even where those decisions take place within the
framework of a regulatory regime . . . .
Denver Area Telecomm. Consortium, Inc. v. Federal Communications Comm'n, 116
S. Ct. 2374, 2383 (1996).
The state action issue implicates a myriad of players, only some of whom are
defendants. Yeo sued only those individuals who are public school
administrators, teachers, or members of the Lexington School Committee. They
are concededly state actors. He did not sue the student editors. But the
" action" of which Yeo complains was an action taken by the students. The
" actions" he assails were the editorial judgments not to publish his
advertisement. Those judgments were made by the students, who are not
parties.
There are expressive interests involved on both sides of this case. Yeo's
are obvious. Those on the other side are perhaps less obvious. The
identification of these interests puts the state action question in context.
If the actions by the students are themselves state action or may be
attributed to the school officials and provide the basis for state action,
the inevitable legal consequence will be some level of judicial scrutiny of
the students' editorial judgments.[7] The inevitable practical consequence
will be greater official control of the students' editorial judgments. Both
consequences implicate the students' First Amendment interests, which are
far from negligible. Cf. Hazelwood Sch. District v. Kuhlmeier, 484 U.S. 260
(1988) (acknowledging but ruling against student speech interests when
school officials overrode students' editorial judgments and withdrew certain
material from pages of high school newspaper); Miami Herald Publishing Co.
v. Tornillo, 418 U.S.. 241, 252 (1974) ("[I]mplementation of a remedy such as
[government] enforced access" to pages of a private newspaper "brings about
a confrontation with the express provisions of the First Amendment and the
judicial gloss on that Amendment developed over the years.").
In addition, the defendant school officials themselves have an interest in
their autonomy to make educational decisions. The officials have determined
that the best way to teach journalism skills is to respect in the students'
editorial judgments a degree of autonomy similar to that exercised by
professional journalists. That choice by the officials parallels the
allocation of responsibility for editorial judgments made by the First
Amendment itself. The Supreme Court has "oft expressed [the] view that the
education of the Nation's youth is primarily the responsibility of parents,
teachers, and state and local school officials, and not of federal judges."
Hazelwood, 484 U.S. at 272.
The leading Supreme Court decisions concerning high schools and students are
all meaningfully different from this case, and thus provide little guidance
on the state action question. Each of those cases involved a claim by
students that the actions of public school administrators violated their
constitutional rights. For example, in Hazelwood, plaintiff students
contended that officials violated the First Amendment by deleting articles
from student newspaper. State action was simply not at issue in Hazelwood
because the relevant actions were admittedly taken by public school
officials..[8] Id., 484 U.S. at 264. The same is true of earlier decisions,
all of which involve student claims against those running the schools.
Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986)(civil rights claim by
student disciplined by officials for language used in school assembly);
Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969)(student claim
that principals' regulation against armbands violated First Amendment); see
also Vernonia Sch. Dist. v. Acton, 515 U.S. 646 (1995)(student Fourth
Amendment claim against school district). Here, in contrast, the question is
whether the actions by students may fairly lead to a conclusion there is
state action.
Each court of appeals which has considered the state action requirement in
the context of attempts to attribute student-controlled editorial decisions
in public institutions of higher education to public officials has found no
state action. In Leeds v. Meltz, 85 F.3d 51 (2d Cir. 1996), the court found
no state action where school officials and students were sued over the
decision by student editors of a newspaper in a state supported law school
to reject an ad. See id. at 55. In Sinn v. The Daily Nebraskan, 829 F.2d
662, 665 (8th Cir. 1987), the court held that there was no state action in
the refusal to print an ad where the student paper "maintains its editorial
freedom from the state." In Mississippi Gay Alliance v. Goudelock, 536 F.2d
1073, 1075 (5th Cir. 1976), a similar result was reached in a suit against
the newspaper editor where the students elected the editor and university
officials did not control or supervise editorial judgment about what to
publish. In Avins v. Rutgers, 385 F.2d 151, 153-54 (3d Cir. 1967), without
expressly discussing the state action issue, the court held that a
state-supported law review's rejection of an article did not violate the
First Amendment because editorial discretion is a necessary component of
publishing a journal. Yeo argues that cases involving public universities
are not on point, given the state's potentially greater role in controlling
the behavior of younger, high school students. But it is also true that the
autonomy given to these high school students renders them more like their
older counterparts and renders those cases highly relevant.
The only decisions we have found which assume there is state action do so
where the parties agreed there was state action and it was undeniable the
decision makers were government officials. The decision by the Ninth Circuit
in Planned Parenthood of Southern Nevada Inc. v. Clark County School
District, 941 F.2d 817 (9th Cir. 1991), is inapposite as state action was
conceded. There the school officials themselves controlled the school
publications and decided to reject the advertisement from the plaintiff
organization. Id. at 820. Likewise, in Lee v.. Board of Regents, 441 F.2d
1257 (7th Cir. 1971), state action was conceded where the student newspaper
was a "state facility".
While all parties appropriately point us toward the state action analysis in
Rendell-Baker v. Kohn, 457 U.S. 830 (1982), that case is rather the mirror
of this. Rendell-Baker involved a claim that private school officials were
state actors. Here the claim is that public school officials may be sued
based on the actions of students. The students are themselves at least
facially private actors.
The theories for (and against) state action basically devolve here into
three categories of analysis. First, is there state action because the
decisions not to publish were actually made by or controlled by the school
officials? (Even if the decisions were not directly made by the school
officials, those officials, Yeo argues, exerted such influence as
effectively to determine the outcome of the student decisions.) This is
primarily a factual question.
Second, even if the state did not actively direct or control the decisions,
was the state required to intervene, and to do so in such a way as to
provide a basis for a state action finding? This is primarily an issue of
law.
Third, even if the decisions were made independently by the students, may
the decisions of the students fairly be attributable to the school officials
because of the public school setting? The material facts are undisputed; the
question is what conclusion to draw from these facts. We take each argument
in turn.
A.
Yeo argues that the decisions were made or controlled in fact by the school
officials, but the record does not support that conclusion.[9]I have never
ordered (nor do I have the authority to order) the student editors not to
run an editorial, news or feature article or any advertisement. I have used
persuasion to address matters that seemed over-the-line. On one occasion,
for example, when I disagreed strongly with a proposed student editorial,
which, in my opinion, took an extremely irresponsible
position, I was prepared to resign if my advice to withdraw the editorial
was not accepted. The editors engaged in an extensive debate and consulted
with their parents before finally agreeing to withdraw the editorial.
There is nothing in the record even to suggest that Kafrissen engaged in
such persuasive techniques with regard to the Yeo ad; rather, the
uncontradicted evidence is that Kafrissen took prophylactic measures to
ensure that the students felt free to make their own decision. At bottom,
Yeo's claim of control amount to no more than "conclusory allegations,
improbable inferences, and unsupported allegations." Fennell v. First Step
Designs, Ltd., 83 F.3d 526, 536 (1st Cir. 1996) (citations and internal
quotation marks omitted). The students and each of the involved school
officials say that the students, and not the school officials, made the
decision. Yeo has offered nothing to contradict that.
Nonetheless, the state action cases recognize that government should not be
shielded when it is the real actor behind the scenes or when it joins in a
charade designed to evade constitutional prohibitions. See Terry v. Adams,
345 U.S. 461 (1953)(Democratic Party "club" was a state actor designed to
evade constitutional prohibition against all-white primaries); cf. Morse v.
Republican Party of Virginia, 116 S. Ct. 1186 (1996). That is not true here.
This is also not an instance in which the government knowingly profits from
the racially discriminatory behavior of a privately owned enterprise. See,
e.g., Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961); Blum, 467
U.S. at 1010-11. That type of symbiotic relationship has been found to
create state action where the government tacitly endorses and becomes
entangled with private racial discrimination. Burton, 365 U.S. at 724. Even
if that race discrimination model for state action were imported here, there
is no evidence the school officials tacitly endorsed or benefitted from the
students' decisions not to run Yeo's ads.
The state action cases also consider "de-privatizing" and attributing to the
government the actions of private persons where the state has been involved
in the sense of delegating traditional governmental authority to a private
actor.[10] In Edmonson, a private litigant's race-based exercise of
peremptory challenges was found to be state action. Edmonson, 500 U.S. at
621. The running of trials is a government function and it is the judge who,
based on the challenge, excuses the juror. The publishing of a newspaper or
a yearbook is most emphatically not a traditional function nor an exclusive
prerogative of the government in this country. Private schools commonly have
student newspapers, and public schools not uncommonly have independent
student newspapers. The delegation of governmental function theory does not
establish state action. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978)
(sale of goods in storage by warehouseman did not constitute state action);
Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974) (private utility
which terminated electric service was not state actor).
B.
Secondly, while there may be rare occasions when a state has a duty to
intervene in actions taken by private persons which could give rise to a
state action finding, this is not one.[11] See Ponce, 760 F.2d at 379-80
(although there may be some occasions in which "[t]he government should be
responsible for failing to act where it should act," there was no state
action because the government had no affirmative duty to regulate amateur
sports leagues). Cf. DeShaney v. Winnebago County Dep't of Social Services,
489 U.S. 189 (1989) (finding that the Due Process Clause imposes no
affirmative duty on the government to protect citizens from deprivation of
life, liberty or property by private actors). Here, the state statute, Mass.
Gen. Laws ch. 71, ß 82, appears to have been intended, in part, to express
Massachusetts' policy judgment that student editors of high school
publications generally have editorial autonomy from school officials and
that their decisions are not state action. While the state statute cannot be
determinative of the outcome of the federal constitutional question, Lebron
v. National R.R. Passenger Corp., 115 S. Ct. 961, 971 (1995) (statutory
declaration that Amtrak is not a government entity not dispositive of
governmental action question where constitutional rights are involved), no
such duty to act is imposed by state law.
The First Amendment free speech and free press guarantees do not involve a
duty by the government to act where there is otherwise no state action.
Indeed, those guarantees are largely based on prohibitions against
government action.[12] "The First Amendment does not reach acts of private
parties in every instance where the [government] has merely permitted or
failed to prohibit such acts." CBS v. Democratic Nat'l Comm., 412 U.S. 94,
119 (1973) (plurality opinion). In CBS, a plurality of the Supreme Court
found that the decisions of broadcasters not to accept any editorial
advertising were not government action for purposes of the First Amendment,
even though the government both licensed and heavily regulated the
broadcasters. Id. at 116-19. As a matter of law, we see no legal duty here
on the part of school administrators to control the content of the editorial
judgments of student editors of publications. Such a duty -- which Yeo in
his briefing suggested could be derived from the traditional government
function of running schools and the "symbiotic relationship" between the
publications and the school -- does not exist and cannot support state
action.
C. We are left with the third theory: that the actions by the students
should be attributed to the school officials, despite the officials' lack of
actual or effective control and the lack of any duty. The key issue is
whether the conduct may be "fairly attributable to the state." Barrios v.
AEELA, 84 F.3d 487, 491 (1st Cir. 1996) (citations and internal quotation
marks omitted) (no state action where state did not compel organization of
governmental employees of Puerto Rico to act, no traditional government
function involved, and no interdependence and joint participation with state
is shown).
Of course, the fact that the newspaper editors are public school students
does not, in itself, make them state actors. Persons do not become state
actors because they are clients of government services, whether they are
students, hospital patients, or prison inmates. Some, like the students, are
government clients by compulsion -- here, the truancy and mandatory
education laws compel the students' attendance.[13] They may not be
converted to the status of government actors simply on such a basis.
Yeo argues, using the Rendell-Baker terminology, that there is a sufficient
nexus to attribute the students' actions to the state. But examining the
nexus here between state regulation and financial support of the
publications and the challenged decisions militates against a state action
finding. See Blum v. Yaretsky, 457 U.S. at 1004; Rendell-Baker, 457 U.S. at
838-41. It is established that a private institution's receipt of state
funding does not render that institution's decisions state action.
Rendell-Baker, 457 U.S. at 840. This can be so even when the institution's
budget is almost entirely derived from public money. Id. Here, the
publications are the institutions at issue.
The Yearbook receives no money from the school system other than the
indirect assistance it gets from the small stipend received by its faculty
advisor. The Musket does receive greater financial assistance. Much of its
operating costs as well as its advisor's stipend are paid by the school
system. However, these facts are far from conclusive. The focus in
Rendell-Baker was on the interplay between the action at issue and the state
funding and regulation, not merely on the amount of state aid or oversight.
Id. There was no interplay between the decision not to publish the
advertisement and the state's provision of financial and faculty support.
That the principal kept the checkbook for the school newspaper had nothing
to do with the students' decisions whether or not to run the ads.
Yeo's "nexus" argument turns on context. The Yearbook does memorialize in
photographs the experiences and personalities in a public high school class.
The newspaper is the newspaper of the public high school; its name is the
" Lexington High School Musket" and it identifies itself with the high school
in its communications and interactions with other students and the
community. It does receive some financial support from the school and the
faculty advisors may have some subtle influence. The newspaper exists in the
form it does because the school authorities and state law permit it to do
so. While not part of the for-credit educational curriculum, work on the
Musket does have explicit educational value and provides an attractive
credential for students. The student editors perform some of their functions
on school grounds, perhaps even during school hours. All of these factors
support Yeo's argument. It is a close question whether the injury caused
here "is aggravated in a unique way by the incidents of government
authority." Edmonson, 500 U.S. at 622 (citation omitted).[14]
The Supreme Court has taught that the state action question may shift
depending on the context and the question asked. A public defender is not a
state actor in her representation of a criminal defendant, even though she
may be one in the performance of other duties, such as hiring or firing
decisions. See Polk County, 454 U.S. at 324-25. Even acknowledging that the
public defender is a state employee, Polk County considered it important
that, in the actual function of defending the client, the public defender's
relationship to the state was necessarily independent, and even adversarial,
and that the defender exercised independent judgment in the same manner as
did attorneys in the private sector. Id. at 321-22. So too here.[15]to
intervene, the analysis would focus on a different decision and most likely
would reach a different result.
Here, the students' relationship to the public school officials in the
exercise of their editorial judgment was certainly independent. At times, it
was close to adversarial. The school officials gained nothing but a lawsuit
from the students' decision, and the officials might themselves, as they
told the students, have made a different decision. It is not enough to
create state action that the decisions took place in a public school
setting, that there was some governmental funding of the publication, that
teachers were acting as advisors, and that the state actors made an
educational judgment to respect the autonomy of the students' editorial
judgment.
Where, as here, there are First Amendment interests on both sides of the
case, the analysis of whether there is state action must proceed with care
and caution. Because the record establishes that the editorial judgment
exercised was the independent judgment of the student editors of both
publications, we resolve the question of state action against Yeo.
The decision of the district court is affirmed.[16] Costs are awarded to the
Town of Lexington and the defendant school officials.
Concurrences follow.
TORRUELLA, Chief Judge (Concurring). I concur with the majority opinion but
write separately to highlight an important issue that the majority fails to
address -- the absence of a public forum.
The regulation of speech in forums that have traditionally been available
for public expression is subject to the highest degree of scrutiny. See
Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983).
These "traditional public forums" include streets, sidewalks and parks. Id.
In order to further aid citizens' political discourse, the state may, from
time to time, create a new public forum for the views of the community. The
regulation of speech in these "designated" public forums is also subject to
strict scrutiny. See id. at 46. However, it is simply not true, as a matter
of constitutional law, that each time a state actor solicits advertising, a
designated public forum has been created by the government. See Lehman v.
City of Shaker Heights, 418 U.S. 298 (1974) (city may solicit advertising
for its rapid transit cars while refusing political and public issue
advertising).
The Supreme Court has held that "[t]he government does not create a public
forum by inaction or by permitting limited discourse, but only by
intentionally opening a nontraditional forum for public discourse."
Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 802
(1985) (emphasis added); see also International Soc'y for Krishna
Consciousness, Inc. v. Lee, 505 U.S. 672, 680 (1992) (when the government
opens a forum for certain types of speech, a public forum has not been
created unless the government intended to create a forum without
limitations); United States v. Kokinda, 497 U.S. 720, 730 (1990) (plurality
opinion) (same); Perry, 460 U.S. at 48 (same). Therefore, when school
newspapers and yearbooks publish advertising alongside student articles and
pictures, it cannot be said that editors are necessarily intending to open a
forum for all public discourse.
This Circuit has observed that "in determining whether the government qua
proprietor has designated public property to be a public forum, courts
should be highly deferential to the government's decisions to regulate
speech" where those decisions do not evidence viewpoint discrimination. AIDS
Action Committee of Mass. v. MBTA, 42 F.3d 1, 9 (1st Cir. 1994). It follows
that the mere absence of a prior written policy against political and public
issue advertising should not preclude the Musket from adopting such a policy
when the need to do so becomes apparent, so long as the paper has not
established a practice of publishing such material. See Cornelius, 473 U.S.
at 802 (government's intent regarding a forum for speech must be gleaned
from policy and practice); Grace Bible Fellowship, Inc. v. Maine School
Admin. Dist. No. 5, 941 F.2d 45, 47 (1st Cir. 1991) (same). In this case,
the Musket had not published political or public issue advertising in the
past, and Yeo's request did not obligate the paper to begin publishing such
material.
When the state solicits advertising for a nontraditional public forum, it is
permitted to filter out pure political speech. See Lehman, 418 U.S. at
303-04. Disallowing this filter would shut down potentially robust
activities, including many school newspapers, inhibiting the marketplace of
ideas protected by the First Amendment. See Keyishian v. Board of Regents,
385 U.S. 589, 603 (1967) (recognizing that schools are important loci of the
" marketplace of ideas" protected by the First Amendment). While it is true
that "[t]he line between ideological and nonideological speech is impossible
to draw with accuracy," Lehman, 418 U.S. at 319 (1974) (Brennan, J.,
dissenting), there is no such line-drawing problem in this case. For this
additional reason, the district court must be reversed.
Stahl, Circuit Judge, concurring in the judgment. Though I remain persuaded
that, on the facts of this case, the student editors were public actors
acting under color of state law, further examination of the record during en
banc review leads me to conclude that this issue is not material to our
decision and that the district court properly entered judgment in favor of
defendants. I write separately for two reasons. First, because this case is
easily resolved on statutory grounds -- lack of evidence from which a
factfinder could conclude that the defendants "caused" the constitutional
violation complained of -- I believe the majority's central state action
ruling to be an unfortunate breach of the "fundamental rule of judicial
restraint . . . that [courts] will not reach constitutional questions in
advance of the necessity of deciding them." Three Affiliated Tribes v. Wold
Engineering, P.C., 467 U.S. 138, 157 (1984). Second, I believe the
majority's unnecessary constitutional ruling to be wrong on the merits.
I.
Defendants cannot be liable to plaintiff for damages unless, among other
things, they subjected plaintiff to, or caused plaintiff to be subjected to,
a deprivation of federal rights. See 42 U.S.C. ß 1983. Because the Supreme
Court has made it clear that ß 1983's causation language is to be narrowly
construed, see Monell v. New York City Dep't of Social Servs., 436 U.S. 658,
691-94 (1978) (interpreting the language of ß 1983 to preclude the
imposition of vicarious liability), the question here quickly reduces to
whether one or more defendants can, at the least, be seen as having caused
the rejection of the advertisements within the narrow meaning of the
statute. See id. As the majority notes, plaintiff has not named as
defendants those persons -- the student editors of the newspaper and
yearbook -- who may most readily be seen as having directly subjected him to
the alleged deprivation of his First Amendment and equal protection rights.
Nor has plaintiff argued that the acts and omissions for which the named
defendants may most readily be seen as responsible -- delegating
decision-making authority to the students and failing to override the
students' decisions -- caused him to be subjected to constitutional harm.
See, e..g., Febus-Rodriguez v. Betancourt-Lebon, 14 F.3d 87, 91-92 & n.4 (1st
Cir. 1994) (discussing this circuit's standard for establishing supervisory
liability under ß 1983). As a result, no trial is warranted unless there is
a genuine issue of material fact as to whether (1) at least one individual
defendant actually colluded with the students in the decisions to reject the
advertisements; or (2) the rejection was pursuant to a policy or custom of
the Town of Lexington. See, e.g., Board of County Commissioners v. Brown,
117 S. Ct. 1382, 1388 (1997) (reiterating that, for purposes of ß 1983, a
municipality causes one to be subjected to a deprivation of federal rights
only through its duly-enacted policies or widespread customs having the
force of law). In my view, there is insufficient evidence to warrant a trial
against any of the named defendants under either of these theories.
Though I continue to disagree with the majority's conclusion that defendants
Kafrissen and Mechem did not influence the students' decisions to reject the
advertisements, I now concur that the summary judgment record permits only
one inference: the students made the ultimate decisions. In the end, I am
constrained to agree that, in the face of largely uncontradicted testimony
to contrary effect, Kafrissen and Mechem's use of the term "we" in
message-relaying correspondence with plaintiff, and Kafrissen's prior threat
to resign, see ante at 27 n.8, do not allow a determination that defendants
Kafrissen or Mechem can be held liable for the decisions made. And with
respect to the other individually-named defendants, so also do I agree that
there is no basis for concluding that they participated in the rejections of
the advertisements. Thus, there is insufficient evidence of statutory
causation for plaintiff to proceed to trial against any of the individual
defendants.
With respect to the Town, I agree with the majority's conclusion that there
is no basis for attributing to it the conduct of the students. See ante Part
III, Sections A and C. I take issue, though, with the method by which the
majority reaches its conclusion. Specifically, I disagree with its direct
(though reverse) application to this case of those Supreme Court state
action cases which look for state action in private conduct. See generally
id. (applying, in order, Terry v. Adams, 345 U.S. 461 (1953); Morse v.
Republican Party of Virginia, 116 S. Ct. 1186 (1996); Burton v. Wilmington
Parking Auth., 365 U.S. 715 (1961); Flagg Bros., Inc. v. Brooks, 436 U.S.
149 (1978); Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974);
Rendell-Baker v. Kohn, 457 U.S. 830 (1982); and Edmonson v. Leesville
Concrete Co., Inc., 500 U.S. 614 (1991), to determine that the defendants to
this lawsuit, all of whom are public actors, are not liable for the
students' conduct). While these cases might, by analogy, shed light on what
will not be considered constitutionally tortious municipal conduct under ß
1983, see, e.g., Rendell-Baker, 457 U.S. at 840-41 (strongly supporting an
argument that neither municipal funding nor municipal regulation of a
private entity constitutes municipal "policy" for purposes of ß 1983), not
one of them speaks to the question directly posed here: can conduct by
non-legislative and non-policy making actors be deemed to have been
sufficiently caused by municipal policy or custom for liability to attach to
the Town? Nor does any one of these cases involve harm-causing conduct which
can be seen as having been committed by public actors. For these reasons, I
fear that the majority opinion confuses more than it clarifies.
Moreover, the majority has entered an area it could and should avoid. The
Town's freedom from liability flows less from the fact (if it be fact, see
infra Part II) that the students are private actors than from the fact that
the students' actions were not caused by Town policy or custom. Again,
plaintiff has not advanced as a theory of liability the Town's decision to
let the students decide -- the only municipal policy or custom which can
arguably be seen at play here. And even if plaintiff had so argued, it seems
obvious that, as an action taken in what appears to have been good faith
reliance upon state law, see Mass. Gen. L. c. 71, ß 82, this policy cannot
give rise to municipal liability under ß 1983. See Surplus Store & Exchange,
Inc. v. City of Delphi, 928 F.2d 788, 791-92 (7th Cir. 1991).
In the end, defendants are entitled to judgment because they did not, under
ß 1983, ultimately cause the conduct of the non-party students. We should
not go beyond this simple fact to decide the case.
II.
By resolving this dispute through application of those cases which look for
state action in private conduct, the majority proceeds from the premise that
the students were private actors. I not only find this implicit holding to
be unnecessary, I believe it to be incorrect on the merits. In my view, had
plaintiff sued the student editors directly, we would have been obliged to
rule that they were, in fact, public actors insofar as they solicited and
published advertisements from paying third parties.
Whether a person or entity is a private or a public actor obviously cannot
be resolved through application of cases which presume that the actor is
private; it is resolved by a fact-specific inquiry into whether the person
or entity is, in context, acting "under color of state law." See Polk County
v. Dodson, 454 U.S. 312, 322 n.12 (1981) (noting the distinction). Although
the Supreme Court has sometimes stated that the state action and under color
of state law questions are coextensive, see, e.g., United States v. Price,
383 U.S. 787, 794 and n.7 (1966), it also has recognized that they are not
invariably the same. That the inquiries sometimes diverge is clear in Dodson
where, without reference to a single state action case, the Court concluded
that a state public defender does not act under color of state law while
acting as counsel to an indigent defendant in a state criminal proceeding.
454 U.S. at 320-24.
Here, as in Dodson, the question (had plaintiff raised it) would not have
been whether private conduct should be attributed to the Town; rather, it
would have been whether the conduct was, as an initial matter, public or
private. Cf. Blum v. Yaretsky, 457 U.S 991, 1003-4 (1982) (contrasting
" those cases in which the defendant is a private party and the question is
whether his conduct has sufficiently received the imprimatur of the State so
at to make it 'state' action for purposes of the Fourteenth Amendment" with
" cases in which the challenged conduct consists of enforcement of state laws
or regulations by state officials who are themselves parties in the
lawsuit"). And the state action tests the majority relies upon, designed as
they are to determine whether private conduct is attributable to the state,
would not have helped answer the question.
To illustrate, when an on-duty municipal police officer misuses the power of
the office to carry out a personal vendetta, we do not decide whether he was
acting under color of state law by reference to whether the municipality is
itself liable for the conduct. See, e.g., Martinez v. Colon, 54 F.3d 980
(1st Cir.), cert. denied, 116 S. Ct. 515 (1995). We decide it on a more
contextually-appropriate inquiry into whether the officer has "exercised
power 'possessed by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law.'" Id. at 986 (quoting
West v. Atkins, 487 U.S. 42, 49 (1988)). So here should we decide whether
the students are public or private actors by reference to criteria other
than those we would use to decide whether the Town must pay for the
students' acts.
What criteria should be used? A helpful starting point is Dodson, where the
Court's ruling was informed by two primary considerations: (1) "a public
defender is not amenable to administrative direction in the same sense as
other employees of the State," 454 U.S. at 321; and (2) "it is the
constitutional obligation of the State to respect the professional
independence of the public defenders whom it engages," id. at 321-22. Here,
both factors militate in favor of finding that, insofar as they solicited
and published (or declined to publish) advertisements from paying third
parties, the students acted under color of state law. Certainly, the power
of school officials to regulate the content of student publications and the
acts of their student editors, see Hazelwood Sch. Dist. v. Kuhlmeier, 484
U.S. 260, 266-70 (1988), is near its apex where the subject of the
regulation involves the students' commercial interactions with third
parties. And where these interactions arguably implicate the constitutional
rights of those third parties, cf. Dodson, 454 U.S. at 321-22, and hold out
the prospect of monetary benefit to the Town, see, e.g., Burton, 365 U.S. at
724 (indicating that conduct which leads to monetary benefits for the State
will often be deemed action on behalf of the State), the question is less
whether the students may be regulated and more whether the students must be
regulated.
My position is narrow. I have never doubted that the student writers are
private actors with respect to reporting and editorializing. A contrary
holding would, after all, effectively spell the end of public school student
publications; one would be hard-pressed to report and could never
editorialize without violating the First Amendment's mandate of viewpoint
neutrality. See generally R.A.V. v. City of St. Paul, 504 U.S. 377 (1992). I
only suggest that, to the extent public school students solicit funds to
support a public enterprise in their capacities as officials of that
enterprise, they act under color of state law. See Dodson, 454 U.S. at
324-25 (making clear that an actor can act under color of state law in one
capacity but not in another); see also ante at 35.
At the very least, that the students are private actors is not such an open
and shut matter that it should be assumed sub silentio. If the student
editors of the Musket determined to run the paid political advertisements of
Democratic candidates for Town office but not those of Republican
candidates, and if the Republican candidates sought injunctive relief
against the students in their capacities as editors of the Musket, would we
summarily conclude that the challenged action was not undertaken under color
of state law? I would like to think not. Though the facts of the present
case are less egregious, the underlying question -- not presented here
because of plaintiff's pleading decisions -- is the same.
III.
For the reasons stated, I concur in the majority's conclusion that judgment
was properly entered in favor of defendants. I do not, however, concur in
the reasoning that leads it to this conclusion. I would instead resolve the
case under well settled law that precludes a finding, under ß 1983, against
any of the defendants named in the complaint for the theories of recovery
plaintiff has advanced.
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