USCA1 Opinion

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, Chairma

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. Sm

________________
________________
______________
were on brief for appellant.

Adam P. Forman,
________________
Olivier,
_______
appellees.

and

with

whom

Lois Brommer Duguette,

_______________________

Testa, Hurwitz & Thibeault, LLP

__________________________________

were on

Sarah
______
brief

S. Mark Goodman,
________________

Michale C. Heistand,
____________________

Hill & Barlow for the

______________
Press

Association,

Robert A. Bertsche,
___________________

Student Press Law Center,

Journalism

Education

National Scholas

Association,

Scholas

Journalism Division of the Association for Education in Journalism

Mass Communication,

Columbia Scholastic

New England Scholastic

Network;

Newspaper

Press Association, and Yankee

Dwight G. Duncan for

_________________

James C. Heigham,
__________________

Press Advisers

and

the

Press Educat

Massachusetts Family

Choate, Hall & Stewart

________________________

Publishers Association;

Associati

for

Institu

Massachuse

Gwendolyn H. Gregory, Melinda

_______________________________

Selbee, Timothy B. Dyk, John Bukey, Jones, Day, Reavis & Pogue for
__________________________________ __________________________
National

School

Boards Association,

Boards, and California School

Illinois Association

Boards Association's Educational

Alliance; Michael J. Long, Rosann DiPietro,

________________ _______________
Massachusetts Association

of Sch

and Long & Long

___________

of School Superintendents, on

curiae.

____________________

December 9, 1997
____________________

OPINION EN BANC

Le
for

briefs am

____________________

-2-

LYNCH, Circuit Judge.

LYNCH, Circuit Judge.
_____________

interests

public

yearbook

on both

sides, arises

This case, involving speech

from

the decision

of two

high school student publications -- the newspaper and

--

not

to

publish

an

advertisement.

The

advertisement promoted sexual abstinence and was proffered by

a parent, Douglas Yeo, in

Lexington,

the aftermath of a decision by the

Massachusetts School

available to

students as

campaigned against

Committee

a public

to

make condoms

health matter.

the condom distribution policy

Yeo had

and lost.

The

two high school student publications declined to publish

the

advertisement on

albeit

unwritten,

the grounds

of

not

running

that

each had

political

a policy,

or

advocacy

advertisements.

The

Town,

the

civil rights action brought by Yeo against the

School

Committee,

officials

was terminated

judgment.

The

action had been

Superintendent

on defendants' motion

and

for summary

district court judge concluded that

shown.

panel of

school

no state

this court, this

judge

dissenting, reversed, holding that summary judgment should be

entered for

that each

the

Yeo on his

claims that there

student publication was a

decisions not to

discrimination.

was state action,

public forum, and

publish were impermissible

1997 WL

292173 (1st

-3-

Cir. June

that

view point

6,

1997).

This court

opinion.

granted en

The

banc review1 and

withdrew the

en banc court now affirms the

district court

entering summary

panel

decision of the

judgment for defendants

on

the ground that state action has not been shown.

I. The Facts

We review

Yeo,

the

party

the facts in the light most favorable to

opposing

summary

judgment,

drawing

reasonable inferences from the record in his favor.

all

Swain v.
_____

Spinney, 117 F.3d 1, 2 (1st Cir. 1997).

_______

A. The Publications
________________

This

case involves

two

distinct

Lexington

High

School (LHS) student

LHS Musket.
______

publications, the LHS Yearbook

The Yearbook was operated entirely by a staff of

about sixty students; all

editorial, business, and

decisions were made by students.

year,

and the

staffing

During the 1993-94 academic

this staff was headed by two co-editors-in-chief, Dow-

Chung Chi and

Natalie Berger.

Karen

Mechem, a LHS teacher,

____________________

1.

The court

acknowledges the assistance

briefs amici

curiae filed

Association,

Illinois

California
Alliance;

School

School

Association

Boards

Massachusetts

Massachusetts Family

by the:

Association,
Association

Press

School

Boards

Boards,

Educational

Publishers

Press Law

Association,

Scholastic
for

of

the

and
Legal

Association;

Institute; Massachusetts Association of

Superintendents; Student

Scholastic

National School

Association's
Newspaper

provided in

Education

Journalism

Journalism
in

Communication,

Columbia

Association, New

England Scholastic

Center, National

Division

Journalism

Scholastic

Press

Education
of
and

the
Mass

Advisers

Press Association,

and

Yankee Press Education Network.

-4-

was the Yearbook faculty

of less than

stipend

Yearbook

advisor.

Mechem was paid a stipend

$2,000 for that activity.

and the

use of

LHS buildings

is financially independent

Apart from Mechem's

and facilities,

from the school

the

and is

funded entirely through the sale of the books to students and

advertising.

Like

most

yearbooks,

pictures of seniors

academics,

This

and

the

LHS Yearbook

and other students, sections

activities,

advertisement

and

section

an

was

included

on sports,

advertisement section.

largely

comprised

of

congratulatory or commemorative ads purchased by students and

their

families.

As the

suggested, student ads might

photos taken in the

Yearbook

advertising

order form

include "[b]aby pictures, group

setting of your choice, [or] pictures of

meaningful

people and/or places."

A few advertisements were

also

to

most

sold

local

businesses;

of

these

included

congratulatory messages to the graduating class.

During the

1993-94 academic

year, the

Yearbook's

unwritten

local

policy was

to publish

businesses which the

advertisements

students frequented or

relationship with during their high school years.

with

this

policy,

students

selling

ads

from those

had some

In keeping

targeted

those

businesses that fit the Yearbook theme of fond memories.

Yearbook's

advocacy

policy

was

advertising,

not

to

including

-5-

publish

ads

any

from

political

candidates

The

or

for

student government.2

ensure

that

the

The

purposes of this

advertising section

of

policy were

the

to

Yearbook was

congruent with the rest of the publication and to prevent the

Yearbook from becoming

groups or candidates

a bulletin board for

in a way that

competing issue

would interfere with the

commemorative purpose of the Yearbook.

The

LHS Musket
______

is

a student-written

newspaper that is published four

editorial,

operational, and

the student editors.

Chan

served as the

and

edited

or five times a year.

staffing decisions are

made by

During the 1993-94 academic year,

Musket's editor-in-chief, Dong

______

All

Ivan

Shen was

the

business manager, and

advisor.

Samuel Kafrissen was

Students do not seek or obtain the approval of

faculty advisor for any

editorial or operational

Kafrissen is paid a stipend of $1,373 by

receives about $4,500 a

Musket has no
______

box; all

the faculty

decisions.

LHS, and the Musket

______

year from the School Committee.

physical facilities at LHS,

the layout

is done

the

The

other than a mail

at editors' homes.

The Musket
______

____________________

2.

The

record does not reveal whether political or advocacy

advertising other than the

was ever submitted
those affiliated
that

neither

message
advocacy
contrary,

to the Yearbook or
with the

has

or accepted

an

the

the Musket.
______

Yearbook and

ever published

organization.
and

ad giving rise to this litigation

the Musket
______

political

advertisement from
Yeo

offers

record, which

no

contains

However,
believe

or advocacy

a political
evidence

to

or
the

the advertising

sections

of

description
printed.

No

several
of

the

Yearbooks,
types

of

bears

out

defendants'

congratulatory

advertising

evidence was produced that

the Musket had ever

______

printed a political or advocacy advertisement.

-6-

typically includes

news

articles

about

the

high

school,

features, editorials, letters to the editor, sports coverage,

and

humor

columns,

students.

edited,

and

produced by

The Musket is described in literature distributed

______

to the student body

is

all written,

"written,

as being a "student run newspaper" which

edited and

editorial

page bears

opinions

stated there

distributed

by

legend stating

are those

students."

The

expressly that

the

of the student

editors or

newspaper staff and not of school policy.

Not every issue of the Musket contains advertising.

______

Those that do contain

that

cater

two or three small ads from businesses

to student

tastes.

During the

1990s,

those

advertisers have included a bookstore, a video store, a music

store,

a driving

school,

courses, and, around

a deli,

a hair

prom time, a tuxedo

salon,

SAT prep

rental store and a

dress shop.

an

For

the 1993-94 school year, the Musket created

______

"Advertisement Form" for potential advertisers.

The form

stated that: "The award winning Lexington High School student

newspaper

provides

area

businesses

organizations the opportunity to

Musket."
______

The form

the issue, ad size

have to

that ads

were subject to

it did note that,

might have to be

be edited, by

depending on

adjusted and ads

the paper's staff,

-7-

non-profit

place advertisements in the

did not state

editorial approval, although

and

for length.

might

The

form

also stated that "[p]ayment . . .

for an ad will occur

only if and after we publish an ad." (emphasis added).

__

Pursuant

never accepted

to an

advocacy or

unwritten

policy, the

political advertising, including

that from candidates for student government.

this

policy

was

to

"bulletin board" for

Musket has
______

prevent the

Musket
______

The purpose of

from

warring political ideas.

becoming

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,

policy

the Lexington School

making condoms available

parental

permission.

political controversy in

This

to students at

measure

group

called

Policy," which

and other

was

the

LHS without

subject

Lexington, and Douglas Yeo,

resident and parent, emerged as a

distribution

Committee adopted a

"safe sex"

"Lexington

sponsored a

Citizens

of

a town

leading opponent of condom

policies.

for

Yeo

Responsible

headed a

School

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.

misrepresented

requested

Yeo

his group's position.

meeting

with

concerning his grievance.

LHS

thought these articles

In January

Principal

David

1993, Yeo

Wilson

Wilson suggested that Yeo submit a

-8-

letter to the editor correcting the alleged inaccuracies, but

advised

Yeo that

any decisions regarding

have to be made by the

the student editors.

student editors.

corrections would

Yeo did not contact

In March 1993, the voters of Lexington

approved the condom distribution policy.

Subsequently,

in

May

1993,

Lexington Parents

Information Network

stated

to

goal

was

distribute

Yeo

founded

("LEXNET").

information

the

LEXNET's

about

public

education to parents via newsletters and meetings.

1. The Yearbook Ad
_______________

On

November 1, 1993,

submitted a full

page ad to the

Yeo, as Chairman

of LEXNET,

1994 LHS Yearbook.

copy read:

We know you can do it!

The ad

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

of the

Yearbook advisor, acknowledged receipt

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

Natalie Berger, a

ad in the

with the

publisher for

the

printing

of proofs.

senior and co-editor-in-chief, noticed the

drawer and felt that

the ad was "out

advertising section of the

-9-

Yearbook.

of context"

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,

large

number

of

proofs,

including those of Yeo's ad, came back from the printer.

the

they

student editors attended

looked over

the

various

an editorial meeting

ads and

copy.

All

at which

After much

discussion, the editors decided that Yeo's ad was a political

advocacy statement that

was out of context

the Yearbook

and

had no

Although the

students decided to

that

place in

with the rest of

that

reject the

they still wished to include a message

publication.

ad as drafted,

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

administration

the

faculty

or

prior

to

making

this

decision.

The

their decision.

their

request

Yearbook editors asked Mechem to notify Yeo of

The students

that

Yeo's

congratulatory graduation

Mechem called Yeo, and

ad

also asked

be

message.

Mechem to

revised

On

to

February

convey

express

1,

1994,

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.

-10-

The student editors discussed the issue

again, and

decided to

ad.

stand by their original

They asked Mechem

decision to reject Yeo's

to write to Yeo, returning his check.

On February 4, Mechem wrote to Yeo:

Because of the non-controversial nature

of

the

advertising

yearbook, we
the

have decided

advertising

Please

section

accept

inconvenience

you
my

of

not to

have

our

print

submitted.

apologies

that

the

for

the

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

not accept your

and free speech,

rejection of our

ask that you reconsider

censor it.

ad and

your decision to

We will not be

check at this time.

we do

cashing your

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

senior and

January

3, 1994,

the business

Yeo wrote

manager of

to

Dong Shen,

the Musket,
______

requesting

information about

advertising

letter was not on

LEXNET stationary and did not identify Yeo

as a member of that group.

procedures

and rates.

The

Receiving no reply, Yeo wrote to

Shen again on January 20, requesting the information "as soon

-11-

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

Musket.
______

1994, Yeo

submitted an ad

to the

The text was identical to the Yearbook ad previously

submitted,

the

February 1,

except that, above LEXNET's address, it contained

line: "For accurate information on abstinence, safer sex

and condoms, contact:[LEXNET]."

The

extensively.

Yeo's

student editors of the Musket discussed the ad

______

In

mid-February,

ad constituted a

not run as

they met

and decided

political statement that

a matter of policy.

they would

On February 24,

1994, Shen

wrote to Yeo:

After

careful

advertisement
came

to the

printing it.

consideration
from

LEXNET,

difficult
In no

of

your

the

Musket

decision

of not

way did we want

to

limit your right to express your opinion,

but

we

could

not

accept

that

political

statement as an

advertisement.

Our own

advertisement policy dictates so for good

reasons.

If

we

were

to

accept

politically aligned advertisement,

we at

the Musket would feel obligated to accept

other
come

political
our way.

ourselves in
Ad

statements
We do

not wish

such position.

space is not

that

to put

Ultimately

a public forum

-12-

might

and for

that reason the Musket reserves the right

to select
to

what Advertisements it chooses

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,

faculty advisor,

approval.

or requesting

In fact,

his, or

Kafrissen did

any other

not even know

ad's submission until the time of the editorial

did not see the ad

the Musket
______

adult's,

about the

meeting, and

or the students' response until after the

reply had been sent.

Sometime the

Kafrissen

Norman

and

next week,

informed him

Principal

that Lexington's

Wilson

called

Town Counsel,

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

issues in

greater depth and

students.

On

Musket met
_______

actions.

meeting

March

1,

supported

concerned that the

to discuss the

1994, the

with Kafrissen.

Although

number

Yeo's

student

into

the legal

matter with the

editors

of the

Kafrissen informed them of Yeo's

of students

pro-abstinence

Musket might turn

______

for advocacy on lifestyle issues.

were uncomfortable

to look

the

views,

into a

March 1

they

were

bulletin board

Additionally, the students

with having to run

-13-

at

an ad because someone

had threatened to sue them if they did not.

again

decided to

contact

Yeo and

reject the

to invite

ad.

him to

The editors once

They asked

present

Kafrissen to

his views

in a

"letter to the editor."

Kafrissen,

that day.

In

on behalf of

the Musket, wrote

______

to Yeo

the letter, Kafrissen suggested that Yeo write

a letter to the editor:

We have
the

long considered

the Letters

to

Editor section of the Musket to be a

public

forum.

accepted

Historically

we

and printed on these

have

pages any

and all "short and tasteful" letters that

have come to us.
letter

We would welcome such a

from your

you would

probably be

your

position on

than

you

format.
school
from

able

to

more fully
in

an

ad

We have heard that you feel that

publications

presenting

you use

in which

able to explicate

abstinence

would be

student body.

your

organization

have

your

prevented you

message

to

the

Therefore we suggest that

the medium

message across

of a
in

letter to

get

greater detail,

and without charge.

The letter concluded

in forcing

by noting that, if Yeo

the Musket to print

______

negative consequence

student staff.

were successful

the ad, this would

of removing editorial

have the

control from the

Kafrissen.

Yeo declined

the offer on

In

letter,

that

Yeo

March 7 in

a letter to

explained

that

organization decided to sponsor the ads for two reasons:

Firstly,
wanted

we
to

had
get

a
out

abstinent students

simple
that

message
would

we

affirm

in the LHS community.

-14-

his

. .

There is nothing controversial or

political in

our message.

Secondly,

wanted to see if the Musket and

______
would

react

They did.

Accordingly, Yeo

print it.

thought they

declined to write

would.

a letter

to the editor,

not make the point as concisely

Yeo insisted that

is our legal right,"

with it.

Yearbook

In spades.

which, he felt, could

ad could.

as

as an

the ad be run as submitted, "as

and concluded, "You don't have to agree

You don't even have

to like it.

You just

have to

Touch ."

C. The Administration's Response and the Students' Decisions

_________________________________________________________

On

March

discuss the ads.

1, Yeo

met

with

Principal

Wilson

to

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

students and faculty

sources.

Mechem

the

controversy

heightened,

alike were seeking advice

told

Wilson

that

the

from various

Dow-Chung

Chi,

the

Yearbook's co-editor-in-chief,

had asked

her: "If

print the ad,

breaking?"

In an

attempt to

with Wilson,

Kafrissen,

what law are we

answer his question,

Mechem talked

we don't

and the Student Press Law Center in Washington, D.C.

of the student editors

advice

from the

Liberties Union of

they knew

of the Musket and the Yearbook sought

______

Student

Press

Law Center

Massachusetts, as well as

personally.

Several

The students

-15-

were

and

the

Civil

from attorneys

told

by

these

various

sources

Massachusetts

that, under

the

law, student editors

federal Constitution

had the right

and

to decide

what was printed in their publications.

On

March

11,

1994,

LHS

officials

and

editors met in the office

of the Superintendent of

Jeffrey Young.

editors-in-chief Berger

Yearbook

student

Schools,

and

Chi,

Musket editor-in-chief
______

Superintendent Young

asked questions

was, and to

Chan, advisors

Kafrissen and Mechem,

and Principal Wilson

to

determine what

the students'

determine that they had

process prior to the meeting.

attended.

Young

reasoning

engaged in a thoughtful

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,

approached by a group

Musket
______

editor-in-chief

Chan

was

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

Musket staff; Kafrissen was not

______

At

that meeting,

Chan

of the entire

invited and did not

briefed the

-16-

a meeting

students on

attend.

the events

surrounding

the submission

of Yeo's ad.

The student staff

unanimously opposed publication of Yeo's ad.

On

March

18,

second

Superintendent

Young's office.

participants,

Lexington School

(LHS

Assistant

Principal

Principal Wilson's stead).

reiterated

their

refusal

meeting

In addition

Committee

Lawrence

run Yeo's

held

to the

in

prior

members attended.

Robinson

The Musket and

______

to

was

attended

in

Yearbook editors

ads.

The school

officials and School Committee members warned the students of

the

possible

litigation, and

exposure

consequences

described the

the students could

of

their

decision,

including

potentially unpleasant

expect.

Although

media

the students

felt that the school

officials wanted them to print the ads,

the officials maintained

to

make.

The

that it was the

students

were

students' decision

repeatedly advised

that the

ultimate decision about publication of the advertisement

theirs to make

and the school administration would

was

stand by

their decision.

Following the March 18th meeting, Chan held several

further discussions

Musket's
______

staff.

conclusively

with

individuals and

Finally,

decided not

with the

to

groups

from

staff's support,

run Yeo's

ad as

the

Chan

matter of

the Superintendent

again met

policy.

On

with the

April 11,

1994,

Musket staff and

again told them

the decision was

-17-

theirs.

Musket

Throughout Young's

has

been

student-run

newspaper and he has never authorized any school

official to

the students'

as

an

Superintendent, the

independent

interfere with

operated

tenure as

decision on

Yeo offers no evidence to the contrary.

what to

publish.

As for the Yearbook, Chi and Berger asked Mechem to

invite Yeo,

on the students'

alternatives could

March 28,

would

be

behalf, to a

discussed.

informing her that,

not be

able

requesting that

to meet

Yeo wrote

to Mechem

on the advice

with the

all further

meeting at which

of counsel, he

student

inquiries be

on

editors, and

addressed to

his

lawyer at the Rutherford Institute in Virginia.

Berger

section

editors.

meeting

and

then called a

urged

officials' advice.

Mechem

the

meeting of all

attended

students

Mechem

the

to

then left

the Yearbook

beginning

consider

the

of

the

meeting.

the

school

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

and the School Committee.

After much
the

It concluded:

discussion and

reasons

for

follows.

to Superintendent Young

our

deliberation,

decision

The

nature

advertisement, which

are
of

as
the

promotes a style of

life, regardless of the message, does not

coincide with

that of

the rest

advertisement

section

of

The

inclusion

advertisement

of
would

this
also

-18-

of

the

the yearbook.
type
establish

of
an

unsuitable

precedent for

the

future of

the yearbook.

This litigation followed.

During

editors

of

the 1994-95

the

Yearbook

advertisements other

students.

Yeo

than

school year,

decided

was rejected under the

new policy.

drafted explicit "Advertisement

be distributed

type

of

organizations,

referendum

to

student

accept

from parents

any

and

September 1994, but it

The 1994-95 Musket staff

______

Policies and Procedures," to

with advertisement

advertisements,

not

personal notes

resubmitted his ad in

the new

forms, which

including

those

issues,

advocacy

from

states

the

"political

groups,

[and]

public service organizations,"that the Musket will not print.

______

The newspaper

coverage

to

the

in

its

controversy

news pages

between

it

gave

and

extensive

Yeo,

thus

providing Yeo with coverage of his pro-abstinence position.

II.

Yeo's

the

refusal

Procedural History

action under 42

of

the

two

advertisements violated his

protection

under the U.S.

Massachusetts

School

1983

publications

alleges that

to

print

rights to free speech

Constitution and

Declaration of

Committee,

U.S.C.

Rights.

Superintendent,

Yeo

the

and equal

Art. 16

of the

sued the

Town,

Principal,

and

advisers but did not name the students as defendants.

faculty

-19-

The

defendants

various grounds,

moved

including, inter

for

summary

alia, the

action, that no public forum had been created,

immunity.

judgment

lack of

on

state

and qualified

Yeo opposed summary judgment, but did not submit a

statement of disputed facts in opposition to summary judgment

as

required

by

Massachusetts.

Local

Rule

56.1

of

the

Yearbook

advertisement.

District

of

Yeo conceded at his deposition that he had no

personal knowledge of the decision making

by

the

and

The

on the state action

the

newspaper

processes followed

in

rejecting

district court granted summary

his

judgment

issue without reaching the other issues.

We affirm on the same ground.

III. State Action

The essential state action

government

inquiry is whether

has been sufficiently involved

the

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

____________________

3.

The

'under color

of law'

requirement of

1983 "has

consistently been

treated as

the same thing

action'

under

Fourteenth

required

States v.
______

the

reversed an appellate court

the two analyses as separate.

U.S. 922, 924, 928,

which treated

This court has consistently

as the same.

Asociacion de Empleados,
_________________________

Indeed, the

Lugar v. Edmonson Oil Co., 457

_____
________________

929 (1982).

treated the analyses

'state

Amendment," United
______

Price, 383 U.S. 787, 794 n. 7 (1966).

_____

Supreme Court has

1996).

as the

84 F.3d

See Barrios Velazquez v.

_________________
487,

490-491

(1st Cir.

Where the statutory and constitutional inquiries are

inextricably

intertwined,

decision

of

the

state

action

question is hardly a breach of the obligation to decide cases

on

statutory

questions.

We

grounds

in

order

do not engage in a

-20-

to

avoid

separate

constitutional
1983 analysis,

may

not

impose

constitutional

obligations

on

(and

thus

restrict the freedom of) private actors.4

This

--

the

is a situation in which the government actors

school

officials acting

under a

statute5

of the

liability,

under

____________________

nor do

we

reach

the issue

of municipal

Monell v. Department of Social Services, 436 U.S. 658 (1978),

______
_____________________________
or

of

qualified

defendants.

The

these issues.

immunity

claimed

by

district court ruling did

Judge

Stahl's concurrence

the

individual

not reach any of

suggests that

we

leap over the question of state action to address a statutory

issue
whether

of

causation, an
Yeo

even

has a

depends on whether there

unusual
First

approach.
Amendment

is state action.

The
right

question
to assert

The Supreme Court

and the circuit court cases described above have consistently

addressed

the

state

action

questions of causation.
U.S.

312,

325

before

(examining

only after

1983

defense

examining state

first, and the presence

4.
614,

of

jurisdiction

of state action is "a jurisdictional

1983 action."

See, e.g., Edmonson

_________ ________

Id. at 313.
___

v. Leesville Concrete Co.,

______________________

619-20 (1991) (discussing

the relevance of

500 U.S.
the "state

action" requirement to private freedom).

5.

Mass. Gen. Laws ch. 71

The

right

of

82 provides, in pertinent part:

students

expression in
commonwealth

to

the public
shall

not

freedom

disruption

school.
include
and

or

be

abridged,

without

of

expression

limitation,

responsibilities

views

publish
. .

. .

students in the
shall

be deemed

and

of

. .

No expression

to be an

shall

students,

disseminate

exercise of

the

the rights

collectively and individually,

write,

cause

disorder within

Freedom

of

schools of the

provided that such right shall not

any

no

action issue).

Further, courts ordinarily address questions of

requisite for a

addressing

See also Polk County v. Dodson, 454

________ ___________
______

(1981)

municipal custom

question

. to
their

made by

such rights
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.

-21-

Commonwealth

of

Massachusetts --

editorial autonomy to these

have

chosen

high school students.

to

grant

The state

action analysis is thus placed squarely in a very complex and

changing area of law.

The modern

Court

do

not

state action

rely

on

decisions of

single

analytic

the Supreme

model

applied

regardless of the fact patterns involved.

As this Court once

observed,

the

'necessarily fact-

bound.'"

Ponce v. Basketball Federation of the Commonwealth

_____
_________________________________________

"state action

of Puerto Rico, 760 F.2d

_______________

Lugar
_____

375, 377 (1st

v. Edmondson Oil Co., 457

_________________

analytic

model

used

constitutional claim

First Amendment.6

(1981)

inquiry is

(state

must

being

take

Cir. 1985) (quoting

U.S. 922, 939 (1982)).

account

asserted, here,

of

the

one

Cf. Polk County v. Dodson,

___ ____________
______

action

inquiry

shifts

The

specific

under

the

454 U.S. 312

depending

on

____________________

Mass. Gen.
667

Laws ch. 71,

N.E.2d

869

protects even

(Mass.

82; see also Pyle v. School Comm.,

________ ____
____________
1996)

vulgar speech

disorder results).

(holding

so

long as

We express no view
school to

that
no

the

statute

disruption

or

on whether state law

would have

permitted the

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.

6.

The "search

the

precise

addressed."
1715

for state action

substantive

. . .

ends by identifying

constitutional

issue

to

Tribe, American Constitutional Law

____________________________

(2d ed. 1988).

See also 1
_________

be

18-6, at

Nahmod, Civil Rights and

_________________

Civil Liberties Litigation: The Law of Section 1983

_____________________________________________________

2.04,

at 63 (3d ed. 1991)("[S]tate action is not a unitary concept,

but

varies

depending

on

the

asserted.").

-22-

constitutional

violation

constitutional

question asked).

'state action' requirement

to

the

gravamen

Yaretsky, 457
________

of the

"Faithful

. . . requires

adherence to the

careful attention

plaintiff's complaint."

U.S. 991, 1002

(1982).

As

the Supreme Court

has noted:

We

recognize that

the

First Amendment,

the terms of which apply to

acts

ordinarily

does

governmental

not itself

Blum v.
____

throw

into constitutional
of

doubt the

private citizens

to

restrict,

speech

--

ordinarily

even

where

take

place within

decisions

permit,
and

this

those

the

or

to

is

so

decisions

framework

of

regulatory regime . . . .

Denver
Area
Telecomm.
Consortium,
Inc.
______________________________________________

v.

Federal
_______

Communications Comm'n, 116 S. Ct. 2374, 2383 (1996).

_____________________

The

players, only

those

state

action

some of

individuals

who

issue

whom are

are

implicates

defendants.

public

school

a myriad

Yeo

sued only

administrators,

teachers, or members of the Lexington School Committee.

are

concededly state

editors.

But

the "action"

action taken by the

the editorial

actors.

students.

judgments not

He did

of which

of

not sue

They

the student

Yeo complains

was an

The "actions" he assails were

to publish

his

advertisement.

Those

judgments

were made

by

the

students, who

are

not

parties.

There

are

sides of this case.

expressive interests

Yeo's are obvious.

-23-

involved on

both

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

provide

be

attributed to

the basis

for

consequence will be

students'

the

school

state action,

some level

officials and

the inevitable

of judicial scrutiny of

editorial judgments.7

The

legal

the

inevitable practical

consequence will be greater official control of the students'

editorial

judgments.

students'

First

negligible.

U.S.

speech

Both

consequences

Amendment interests,

which

Cf. Hazelwood Sch. District v.

___ ________________________

260 (1988)

(acknowledging but

interests when

school

ruling

officials

implicate

are

far

the

from

Kuhlmeier, 484
_________

against student

overrode students'

editorial judgments and withdrew certain

of high

school newspaper);

Tornillo,
________

418 U.S. 241,

remedy such

material from pages

Miami Herald Publishing Co.

____________________________

252 (1974) ("[I]mplementation

as [government]

private

newspaper

express

provisions of the

enforced access" to pages

"brings about

confrontation

First Amendment and

v.

of a

of a

with the

the judicial

gloss on that Amendment developed over the years.").

____________________

7.

We

do

not

accept

the

suggestion

of

Judge

Stahl's

concurrence that the students are private actors with respect

to

reporting and

editorializing and that they

respect to the advertising

distinction may play in

decisions.

are not with

Whatever role such

a limited public forum analysis, the

distinction offers little assistance here.

-24-

In

themselves

addition,

have

an

educational decisions.

the

interest

The

defendant

in

their

school

autonomy

officials

to

make

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

editorial

Supreme

of responsibility for

judgments made by the First Amendment itself.

Court

has

"oft

of

the

Nation's

education

responsibility

of

expressed

[the]

youth

is

parents, teachers,

and

view

that

primarily

state

school officials, and not of federal judges."

The

the

the

and local

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

question.

that

their

Each

the actions

little guidance on

of those cases involved

of public

constitutional

rights.

school

For

the state

action

a claim by students

administrators violated

example,

in Hazelwood,
_________

plaintiff

students contended

that

First Amendment by deleting articles

officials

violated

the

from student newspaper.

State action was simply not at issue in Hazelwood because the

_________

-25-

relevant actions

officials.8

were

Id., 484
___

earlier

decisions,

against

those running

Fraser, 478
______

U.S. 675

disciplined

by

assembly);

admittedly

U.S. at

all

of

264.

which

the schools.

for

by

public

The same

involve

is true

student

language

claim by

used

in

of

claims

student

school

Des Moines Indep. Sch. Dist., 393 U.S.

____________________________

503 (1969)(student claim that principals' regulation

armbands

school

Bethel Sch. Dist. v.

__________________

(1986)(civil rights

officials

Tinker v.
______

taken

violated First

Amendment); see also

___ ____

against

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

state

court of

action

attribute

requirement in

Cir.

which has

the

context

student-controlled editorial

institutions of

found no

appeals

higher

education

state action.

1996),

In

the court

considered

of

decisions

to public

to

in public

officials

Leeds v. Meltz,
_____
_____

found no

attempts

the

has

85 F.3d 51 (2d

state action

where school

____________________

8.

Thus,

when

the

Supreme

Court

in

whether

"school-sponsored

parents,

and members of the public might reasonably perceive

to bear the imprimatur of

discussion

publications

Hazelwood discusses
_________
students,

the school," 484 U.S. at 271, that

was pertinent to whether

create a public forum.

that

there was an

Hazelwood did not create

intent to
a new state

_________
action analysis
bears

that

an imprimatur

any
of

school sponsored
the school

activity

which

thus constitutes

state

action.

-26-

officials and students were sued over the decision by student

editors of

reject an

a newspaper

ad.

See id.
___ ___

in a

at

state supported law

55.

In

Sinn
____

v.

school to

The Daily
__________

Nebraskan, 829 F.2d 662,

_________

that there

665 (8th Cir. 1987), the court held

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

elected the editor

or supervise

Avins
_____

v.

Rutgers, 385
_______

court held that

article

where the

and university officials did

editorial judgment about

without expressly

an

newspaper editor

F.2d

discussing

151,

what to

153-54 (3d

the state

action

a state-supported law review's

did not

violate

the

First

students

not control

publish.

Cir.

In

1967),

issue,

the

rejection of

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

school

also true

students

that the autonomy

renders

them

more

given to these

like

their

high

older

counterparts and renders those cases highly relevant.

The only decisions we have found which assume there

is

state action

do so

state action and it

where the

parties agreed

was undeniable the decision

-27-

there was

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.

themselves controlled the

reject the

Id.
__

1257

at 820.

There the

school publications and decided to

advertisement from

the

Likewise, in Lee v.
___

(7th Cir.

school officials

1971), state

plaintiff

organization.

Board of Regents, 441 F.2d

________________

action was conceded

where the

student newspaper was a "state facility".

While all parties appropriately point us toward the

state action analysis in

(1982), that

case is

Baker involved
_____

state actors.

Rendell-Baker v. Kohn, 457 U.S. 830

_____________
____

rather the

a claim

mirror of this.

that private

Rendell________

school officials

were

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

basically

devolve here

First, is

there state

publish were

officials?

for

into three

against)

by or

state

categories

action because the

actually made

(Even if

(and

action

of analysis.

decisions not

controlled by

to

the school

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.

-28-

Second, even if

the state did not

actively direct

or

control

the

intervene, and

for

decisions,

was

the

to do so in such a way

a state action finding?

state

required

to

as to provide a basis

This is primarily

an issue of

the

were

law.

Third,

independently

even

by

students fairly

the

be

if

decisions

students, may

attributable

to

because of the public school setting?

undisputed;

these facts.

the question

is

the

decisions

the

school

made

of the

officials

The material facts are

what conclusion

to draw

from

We take each argument in turn.

A.

Yeo

argues

that

the

decisions

were

made

or

controlled in fact

by the

does not support that

school officials, but the

conclusion.9

record

The students and each of

____________________

9.

Yeo calls

our attention

to the

fact that

the advisors

authored some of the correspondence, using the term "we," and

to

the

fact

that,

on

separate

occasion,

Kafrissen

threatened to resign if the students did not take his advice.

It is

true that Kafrissen and

letters

to Yeo.

written

after
_____

students'

However, the
Dong

Shen

rejection of

correspondence, Mechem
unequivocally

at

the student

the

letter

had

already

ad

to Yeo.

and the

that the

prior to consultation
Yeo

Mechem used the

decision

from

Kafrissen was

communicated
As

Yearbook editor
was made

the

for Mechem's
both stated

by the

with Mechem, and that

editors' request.

word "we" in

students

Mechem wrote to

As to

Kafrissen's

threat to resign, the incident only serves to illustrate that

Kafrissen did not

believe he had the

students around.

His actual description

as follows:

-29-

authority to order the

of the incident is

the involved school officials say that the students, and

the school

officials, made

the decision.

Yeo

not

has offered

nothing to contradict that.

Nonetheless, the state

government should not

behind the scenes

action cases recognize that

be shielded when it

or when it joins in

evade constitutional prohibitions.

is the real actor

a charade designed to

See Terry v.
___ _____

Adams, 345
_____

U.S. 461

(1953)(Democratic Party

designed to

white

evade constitutional

"club" was

a state

prohibition

actor

against

all-

primaries); cf. Morse v. Republican Party of Virginia,

___ _____
____________________________

116 S. Ct. 1186 (1996).

not an

from the

instance in

That is not true here.

which the

racially

This is also

government knowingly

discriminatory behavior

of

profits

privately

____________________

I have
to

never ordered (nor do I

order)

the

editorial,

student

news

advertisement.
matters

with

seemed

feature

not

to

article

On

the

accepted.

their

was

not

an extensive debate and

The

my

withdraw
editors

consulted with

parents before finally agreeing

the editorial.

one

an extremely irresponsible position,

if my advice to

engaged in

any

strongly

which, in

I was prepared to resign

editorial

an

to address

I disagreed

student editorial,

run
or

over-the-line.

example, when

a proposed

opinion, took

editors

I have used persuasion

that

occasion, for

or

have the authority

to withdraw

There is nothing in the record even to suggest that Kafrissen

engaged
ad;

in such persuasive techniques with regard to the Yeo

rather,

the uncontradicted

took prophylactic measures

free to make their own
control

amount

to

no

evidence is

to ensure that the

decision.
more

that Kafrissen
students felt

At bottom, Yeo's

than "conclusory

claim of

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).

-30-

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

entangled with

private racial

U.S.

Even

at 724.

state

school

if that

action were imported

officials

endorses

and becomes

discrimination.

Burton, 365
______

race discrimination

here, there

tacitly endorsed

is no

or

model for

evidence the

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

private actor.10

traditional governmental authority

In

Edmonson, a
________

to a

private litigant's

race-

based exercise of peremptory challenges was found to be state

action.

Edmonson, 500 U.S. at 621.

________

a government function

The running of trials is

and it is the judge

challenge, excuses the juror.

who, based on the

The publishing of a newspaper

or a yearbook is most emphatically not a traditional function

____________________

10.
U.S.

The school
179

officials point

(1988),

where

to NCAA
____

v. Tarkanian,
_________

an unincorporated

association

488
of

public and private colleges was found not to be a state actor

even though the association's actions led a public college to
take disciplinary action against a basketball coach.
this

case the

state actors, the adults,

But in

have a supervisory

relationship to the private group, the students, and are thus

somewhat the inverse of the NCAA and the public college.

-31-

nor

an

exclusive prerogative

country.

the

Private schools commonly have

and public

schools not

newspapers.

does not

of

government

establish state action.

this

student newspapers,

uncommonly have independent

The delegation of

in

student

governmental function theory

See Flagg Bros., Inc. v.

___ __________________

Brooks,
______

436 U.S.

warehouseman

149 (1978)

did not

(sale of

constitute state

goods in

storage by

action); Jackson
_______

v.

Metropolitan Edison Co., 419 U.S. 345 (1974) (private utility

_______________________

which terminated electric service was not state actor).

B.

Secondly,

state has

a duty

while there may be rare occasions when a

to intervene

in actions taken

by private

persons which could give rise to a state action finding, this

is not one.11

may be some

See
___

Ponce, 760 F.2d at 379-80 (although there

_____

occasions in

responsible for failing to

which "[t]he government should

act where it

should act,"

be

there

was no state action because the government had no affirmative

duty to regulate

amateur sports leagues).

Cf.
___

Winnebago County Dep't of Social Services,

_____________________________________________

(1989)

(finding

that the

affirmative duty on

deprivation

Due

Process

Clause

the government to protect

DeShaney v.
________

489

U.S. 189

imposes

no

citizens from

of life, liberty or property by private actors).

____________________

11.

For example, state officials

by and

could not personally stand

watch privately-contracted-for

prisoner to

prison guards beat

death, and then defend on the ground of no state

action.

-32-

Here,

appears

the state

statute,

to

been

have

Mass.

Gen. Laws

intended,

in

ch.

part,

71,

to

82,

express

Massachusetts' policy judgment

that student editors of

school

publications generally

have editorial

school

officials

action.

While the

and

that their

decisions

high

autonomy from

are

not state

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

constitutional rights

action

question

are involved), no such

where

duty to act is

imposed by state law.

The First

guarantees do

where

not involve

there is

guarantees

Amendment

otherwise

are

largely

government action.12

acts

of

private

free speech

a duty

"The

parties

action.

on

every

press

to act

Indeed, those

prohibitions

First Amendment

in

free

by the government

no state

based

and

against

does not

instance

reach

where

the

[government]

has merely permitted or failed to prohibit such

acts."

v.

(1973)

CBS
___

Democratic Nat'l Comm., 412

_______________________

(plurality

opinion).

In

CBS, a
___

U.S.

plurality

94, 119

of the

____________________

12.

The

state

action

question

also

cannot

be

resolved

against

Yeo on the

the state actors,

interfere

with the

grounds that the

Constitution prohibits

the school administrators, from

student

editors.

acting to

Hazelwood forecloses
_________

such a conclusion.

-33-

Supreme Court

found that the decisions

to

editorial

accept any

advertising

of broadcasters not

were

not

government

action

for purposes of the First

government

both

broadcasters.

legal

duty

control the

editors

licensed

the

content of

suggested

government

of school

the editorial

Such a duty

could

function of

heavily

regulated

the

As a matter of law, we see no

part

of publications.

briefing

and

Id. at 116-19.
___

here on

Amendment, even though the

be derived

running

administrators to

judgments of

student

-- which Yeo

from

schools and

in his

the traditional

the "symbiotic

relationship" between the publications and the school -- does

not exist and cannot support state action.

C.

We

actions by the

are left

with

the

students should

third theory:

that

be attributed to the

the

school

officials, despite the officials' lack of actual or effective

control and the lack of

the

conduct

may be

any duty.

"fairly

The key issue is

attributable

to

the

whether

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

of Puerto

Rico to

organization of governmental

act, no

traditional government

employees

function

involved, and no interdependence and joint participation with

state is shown).

-34-

Of

course, the fact that the newspaper editors are

public school

actors.

Persons do

clients of

hospital

students does not, in

not become state actors because they are

government services,

patients,

or

students, are government

truancy

and mandatory

attendance.13

itself, make them state

They may

prison

whether they

inmates.

are students,

Some,

clients by compulsion --

education laws

not be

like

the

here, the

compel the

students'

converted to the

status of

government actors simply on such a basis.

Yeo

that there

the

Rendell-Baker terminology,
_____________

is a sufficient nexus

to attribute the students'

actions to the

argues, using

state.

state regulation and

But examining

the nexus here between

financial support

of the

publications

and the challenged decisions militates against a state action

finding.

Baker,
_____

See
___

Blum v.
____

Yaretsky, 457 U.S. at 1004;

________

457 U.S. at 838-41.

institution's receipt of

institution's decisions

U.S.

at 840.

budget is

This

It is established that a private

state funding does not

state action.

can be

almost entirely

Rendell________

so even when

derived from

render that

Rendell-Baker,
_____________

457

the institution's

public money.

Here, the publications are the institutions at issue.

Id.
__

____________________

13.

We distinguish those

himself a

1983 cases where the plaintiff is

compulsory client of

the government,

true in suits by persons in custodial care of

sues otherwise
contract

private

with the state.

actors

who provide

See West
___ ____

such as

the state, and

services

v. Atkins, 487
______

under
U.S. 42

(1988); Miranda v. Munoz, 770 F.2d 255 (1st Cir. 1985).

_______
_____

-35-

is

The

system other

Yearbook

receives no

than the indirect

money

assistance it

small stipend

received by its faculty

does

greater

receive

school

system.

conclusive.

between

regulation,

oversight.

action

not

However, these

Id.
___

at issue

merely

The

Musket
______

Much

of its

as its advisor's stipend are paid by

facts

The focus in Rendell-Baker

_____________

the

school

gets from the

advisor.

financial assistance.

operating costs as well

the

from the

on

and

the

are

far

from

was on the interplay

the

state

amount

of

funding

state

aid

and

or

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.

Yearbook does memorialize in photographs the experiences

personalities in a

is

public high school class.

the newspaper of the public high

The

and

The newspaper

school; its name is the

"Lexington High School Musket" and it identifies itself with

_____________________________

the high school

in its communications and

other

and

students

financial

support from the

may have some subtle

form it

permit

the community.

does because

it

to do

so.

It

interactions with

does

school and the

influence.

faculty advisors

The newspaper exists in the

the school

While not

-36-

receive some

authorities and state

part

of

law

the for-credit

educational curriculum, work on the Musket does have explicit

______

educational value

and provides an attractive

students.

student

functions

hours.

close

The

on

school

editors

grounds,

perform

perhaps even

credential for

some

of

during

All of these factors support Yeo's argument.

their

school

It is a

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

asked.

public

representation of a

defender is

not

question

state actor

criminal defendant, even though

in

she may

be one in the performance of other duties, such as hiring

firing decisions.

See Polk County, 454 U.S. at 324-25.

___ ___________

acknowledging that

the public defender is a

Polk County
____________

considered

function

defending the

of

relationship to

the state

it important

client,

that,

the

was necessarily

her

or

Even

state employee,

in

the actual

public

defender's

independent, and

even adversarial, and that the defender exercised independent

____________________

14.

Cf.
__

Hastings

Marjorie
Const.

Heins,
L.Q.

Viewpoint
Discrimination,
__________________________

99,

159

(1996)("Public

24

education

presents a paradoxical situation: it is government speech for

some

purposes,

yet

also

quintessential

intellectual growth [and] exploration. . . .")

-37-

forum

for

judgment in the

sector.

same manner as did

Id. at 321-22.
___

Here,

school

the

So too here.15

students'

relationship

to

the public

officials in the exercise of their editorial judgment

was certainly

independent.

adversarial.

lawsuit

decision.

The

times,

school officials

it

gained

was

close

nothing

to

but a

as they told the students, have made a different

It is

decisions took

some

At

from the students' decision, and the officials might

themselves,

was

attorneys in the private

not enough to create state

place in a public school

governmental

funding

of

the

action that the

setting, that there

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

____________________

15.

Similarly,

in

Edmonson,
________

not

all

of

the

decisions of the defendant private company were

state

action;

only the

race-based

See
___

Edmonson, 500
________

challenges were.
was, in
the

part, because "[r]acial

judicial

system

and prevents

actor in

are at

stake,

the

idea

of a

Constitution.

For example,

claim brought

by

who

election to the
the school

student

had

officials

declined

Where such

of a

government

private party may

if

been

editorial board on account

This

of democratic

Id. at 628.
___

implicate the

of peremptory

the integrity of

the acquiescence

the discriminatory actions

deemed to be

U.S. at 621-22.

bias mars

government from becoming a reality."

interests

exercise

litigation

this were
excluded

from

of her race, and

to intervene,

the

analysis

would focus

on a

different decision

and most

likely would

reach a different result.

-38-

state action must proceed with care and caution.

Because the

record establishes that the editorial judgment exercised

the

independent

judgment

of the

student

editors

was

of both

publications, we resolve the question of state action against

Yeo.

The decision of

Costs are awarded to

the district court

is affirmed.16

the Town of Lexington and the defendant

school officials.

Concurrences follow.

____________________

16.

The

denied

motion to
as

strike

immaterial

and

filed by

Yeo in

moot

light of

opinion.

-39-

in

this
the

court is
court's

TORRUELLA, Chief Judge (Concurring).

TORRUELLA, Chief Judge (Concurring).
___________

the majority

important

opinion but

issue that

write separately

the majority fails

I concur with

to highlight

to address

an

-- 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.

Perry Local Educators' Ass'n,

____________________________

"traditional public

See Perry Educ. Ass'n v.

___ __________________

460 U.S. 37, 45 (1983).

forums" include

streets, sidewalks

These

and

parks.

Id.
___

In

discourse, the

order to

state may,

public forum for the

further aid

from time

citizens' political

to time, create

views of the community.

a new

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

has been

solicits advertising, a designated

created by the government.

Shaker Heights,
_______________

418

advertising

its

for

U.S.

298

rapid

public forum

See Lehman
___ ______

(1974)

transit

(city

cars

v. City of
_______

may

while

solicit

refusing

political and public issue advertising).

The Supreme Court has

does not create

held that "[t]he

a public forum by

government

inaction or by permitting

limited

discourse,

nontraditional

but

forum for

only

by

public

intentionally
_____________

discourse."

opening

Cornelius v.
_________

NAACP Legal Defense & Educ. Fund, Inc., 473 U.S.

_________________________________________

788, 802

-40-

(1985)

(emphasis

added); see also International Soc'y for

_________ ________________________

Krishna Consciousness, Inc. v.

___________________________

(when

the

speech,

government

public forum

government intended
________

Lee, 505 U.S. 672, 680 (1992)

___

opens a

has

forum for

not

to create a

been

certain

types of

created unless

the

forum without limitations);

United States v. Kokinda, 497 U.S. 720, 730 (1990) (plurality

_____________
_______

opinion) (same); Perry, 460

_____

when

school newspapers

alongside

that

and

U.S. at 48

(same).

Therefore,

yearbooks

publish

advertising

student articles and

editors are

pictures, it cannot

necessarily intending to open

be said

a forum for

all public discourse.

This

Circuit

whether the government

has

observed

that

qua proprietor has

______________

"in determining

designated public

property

to be

public

forum, courts

should

be

highly

deferential to the government's decisions to regulate speech"

where

those

decisions

discrimination.

do

not

evidence

viewpoint

AIDS Action Committee of Mass. v.

_______________________________

F.3d 1, 9 (1st Cir. 1994).

MBTA, 42
____

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

the paper

material.

intent

do so becomes apparent, so long as

has not established a

See
___

Cornelius, 473
_________

regarding a

policy and practice);

forum

practice of publishing such

U.S.

for speech

at

802 (government's

must be

gleaned from

Grace Bible Fellowship, Inc.

____________________________

-41-

v. Maine
_____

School Admin. Dist. No. 5, 941 F.2d 45,

__________________________

(same).

or public

47 (1st Cir.

1991)

In this case, the Musket had not published political

issue advertising in the

past, and Yeo's

request

did not obligate the paper to begin publishing such material.

When

nontraditional

the

state

solicits

public forum, it

advertising

is permitted to

for

filter out

pure

political speech.

Disallowing this

See
___

Lehman,
______

filter would shut

activities, including many school

marketplace of

Keyishian
_________

"marketplace of

While it

schools

nonideological

Lehman, 418
______

are

U.S.

by the

"[t]he line

319 (1974)

589,

loci

First

See
___

603 (1967)

of

the

Amendment).

between ideological

speech is impossible to

U.S. at

robust

Amendment.

important

ideas" protected

is true that

303-04.

newspapers, inhibiting the

ideas protected by the First

that

at

down potentially

v. Board of Regents, 385

__________________

(recognizing

418 U.S.

and

draw with accuracy,"

(Brennan, J.,

dissenting),

there is no such line-drawing problem in this case.

For this

additional reason, the district court must be reversed.

-42-

Stahl, Circuit Judge, concurring

Stahl, Circuit Judge, concurring
______________

Though I

remain persuaded that,

in the judgment.
in the judgment.

on the facts

of this case,

the student editors were public actors acting under

state law,

further examination of the

review leads me

to our

record during en banc

__ ____

to conclude that this

issue is not material

decision and that the district court properly entered

judgment in favor of

reasons.

color of

First,

defendants.

because this

I write separately for two

case is

easily resolved

on

statutory grounds -- lack of evidence from which a factfinder

--

could

conclude

constitutional

that

violation

the

defendants

complained

of

-- I

"caused"

believe

the

the

--

majority's central state

breach of the

that

action ruling to be

an unfortunate

"fundamental rule of judicial

[courts] will

not

restraint . . .

reach constitutional

advance of the necessity of deciding them."

questions

Three Affiliated
________________

Tribes v. Wold Engineering, P.C., 467 U.S. 138,

______
_______________________

Second,

I believe the majority's

in

157 (1984).

unnecessary constitutional

ruling to be wrong on the merits.

I.

Defendants

cannot

be

liable

damages unless, among other things,

to

plaintiff

for

they subjected plaintiff

to, or caused plaintiff

to be subjected to, a deprivation of

federal rights.

U.S.C.

See 42
___

1983.

Because

the Supreme

Court has made

it clear that

1983's causation language is

to be narrowly

construed, see Monell v.

___ ______

New York City Dep't

___________________

-43-

of Social Servs.,
________________

the

language

of

436 U.S. 658, 691-94

1983

to

preclude

(1978) (interpreting

the

imposition

of

vicarious liability),

the question

here quickly reduces

whether one or more defendants can, at the

having

to

least, be seen as

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

of

deprivation

protection rights.

his

Nor has

First

Amendment

plaintiff argued

and

equal

that the acts

and omissions for which the named defendants may most readily

be

seen

as

authority

to

students'

responsible

the

--

students

decisions

--

and

caused

delegating

decision-making

failing

to

override

the

him

be

subjected

to

to

constitutional

harm.

Betancourt-Lebon,
________________

(discussing

this

See,
___

14 F.3d

e.g.,
____

87, 91-92

circuit's

supervisory liability under

Febus-Rodriguez
_______________

& n.4 (1st

standard

1983).

As

for

v.

Cir. 1994)

establishing

a result, no trial

is warranted unless there is a genuine issue of material fact

as to whether (1) at least one individual

colluded with

the students

in the

defendant actually

decisions to

reject the

advertisements; or (2) the rejection was pursuant to a policy

or

custom of

the Town

of Lexington.

County Commissioners v. Brown,

____________________
_____

See, e.g.,
___ ____

117 S. Ct. 1382,

-44-

Board of
________

1388 (1997)

(reiterating that,

for purposes

of

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).

evidence

to

warrant

In my

trial

view, there is insufficient

against

any

of

the

named

defendants under either of these theories.

Though I continue to

conclusion that

defendants

disagree with the

Kafrissen

and

Mechem

majority's

did

not

influence

the

students'

decisions

to

reject

the

advertisements, I now concur that the summary judgment record

permits only

decisions.

the face

effect,

one inference:

In the

of

the

students made the ultimate

end, I am constrained

largely uncontradicted

Kafrissen and

Mechem's

use

message-relaying

correspondence

Kafrissen's prior

threat to resign,

to agree that,

testimony

of the

with

to

term

in

contrary

"we"

in

plaintiff,

see ante at
___ ____

and

27 n.8, do

not allow a determination that defendants Kafrissen or Mechem

can be held liable for the decisions made.

to

the other

agree

that

participated

individually-named

there

is

no

basis

And with respect

defendants, so

also do

for concluding

that

in the rejections of the advertisements.

they

Thus,

there

is

insufficient evidence

plaintiff to proceed to trial

of statutory

causation for

against any of the

individual

defendants.

-45-

With

respect

to

the

Town,

agree

with

the

majority's

conclusion that there is no basis for attributing

to

conduct

it the

Sections

A and C.

which the majority

of the

students.

I take issue,

See
___

ante
____

Part III,

though, with the method by

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

(applying, in order,

Morse
_____

v.

private
_______

conduct.

Terry v.
_____

See
___

Adams, 345
_____

Republican Party of Virginia,

______________________________

(1996);

Burton v.
______

(1961);

Flagg Bros., Inc. v. Brooks,

__________________
______

Jackson
_______

v. Metropolitan Edison Co., 419

_________________________

generally
_________

U.S. 461

116

Wilmington Parking Auth.,

_________________________

436 U.S.

id.
___

(1953);

S. Ct.

1186

365 U.S.

715

149 (1978);

U.S. 345

(1974);

Rendell-Baker v. Kohn, 457 U.S.

_____________
____

830 (1982); and Edmonson

________

Leesville Concrete Co., Inc.,

_______________________________

determine that the defendants

500

U.S.

614

to this lawsuit,

(1991),

all of

v.

to

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

1983, see, e.g.,

___ ____

(strongly

funding

supporting

nor

an

municipal

Rendell-Baker, 457
_____________

argument

that

regulation

of

constitutes municipal "policy"

U.S. at 840-41

neither

municipal

private

for purposes of

1983), not

one of them speaks to the question directly posed here:

conduct by

non-legislative and

non-policy making

entity

can

actors be

-46-

deemed to have

or custom

been sufficiently caused by

municipal policy

for liability to attach to the Town?

__ ___ ____

Nor does any

one of these cases involve harm-causing conduct which

seen as

having been committed

by public actors.
______

reasons, I fear that the majority opinion

can be

For these

confuses more than

it clarifies.

Moreover, the majority has entered an area it could

and should

avoid.

less from the

The Town's freedom from

fact (if it be

the students are

fact, see infra Part

___ _____

private actors than from

students' actions

were not caused by

Again, plaintiff

has not advanced as

the Town's

decision to let

liability flows

II) that

the fact that the

Town policy or custom.

a theory of

the students decide

liability

-- the only

municipal policy or custom which can arguably be seen at play

here.

And even if plaintiff had so

that, as

an action taken

argued, it seems obvious

in what appears to

have been good

faith reliance upon state law, see Mass. Gen. L. c. 71,

___

this policy cannot

give rise to municipal

82,

liability under

1983.

See Surplus Store & Exchange, Inc. v. City of Delphi,

___ ______________________________
______________

928 F.2d 788, 791-92 (7th Cir. 1991).

In

because

the end,

they did

conduct of the

defendants are

not, under

entitled to

1983, ultimately

non-party students.

this simple fact to decide the case.

II.

-47-

We

judgment

cause the

should not go beyond

By

those cases

resolving this

dispute through

which look for state

application of

action in private conduct,

the majority proceeds from the premise that the students were

private actors.

unnecessary,

my view,

I not only find this

implicit holding to be

I believe it to be incorrect on the merits.

In

had plaintiff sued the student editors directly, we

would

have been

public

actors

obliged to

insofar

as

rule that

they

they were,

solicited

and

in fact,

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

County v. Dodson,
______
______

distinction).

stated that

color of state law."

454 U.S. 312, 322

Although

the state

the

n.12 (1981) (noting the

Supreme

action and

See Polk
___ ____

Court

has

sometimes

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,

state public defender

the Court concluded

does not act under

that a

color of state law

while acting as

counsel to an indigent

criminal proceeding.

defendant in a state

454 U.S. at 320-24.

-48-

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

for

purposes of

the

so at to make it 'state'

Fourteenth Amendment"

action

with "cases

in

which the challenged conduct consists of enforcement of state

laws or

regulations by

parties in

majority

state officials

the lawsuit").

relies

upon,

whether private conduct

And

who are

themselves

the state action

designed as

they

tests the

are

to determine

is attributable to the

state, would

not have helped answer the question.

To

illustrate, when

an

on-duty

municipal police

officer

misuses the

power

personal vendetta, we

under

color

of

municipality is

law

the office

appropriate inquiry

to

decide whether

by

reference

itself liable for

515 (1995).

power 'possessed

do not

state

Martinez v. Colon, 54
________
_____

S. Ct.

of

carry

he was

to

out a

acting

whether

the conduct.

the

See, e.g.,
___ ____

F.3d 980 (1st Cir.), cert. denied, 116

_____ ______

We

decide it

on a more

into whether the officer

by virtue

only because the wrongdoer

of state

has "exercised

law and made

is clothed with the

-49-

contextually-

possible

authority of

state law.'"

42,

49

students

Id.
___

(1988)).

are

at 986 (quoting West

____

So

public

here

or

criteria other than those

should

private

v. Atkins, 487
______

we

decide whether

actors

by

reference

U.S.

the

to

we would use to decide whether the

Town must pay for the students' acts.

What criteria should

be used?

helpful starting

point is Dodson, where the Court's ruling was informed by two

______

primary

considerations:

amenable to

(1)

"a

public

administrative direction

defender

in the

is

same sense

not

as

other employees

of the State," 454 U.S. at

is the constitutional obligation

professional

engages,"

favor

of

independence of

id. at
__

321-22.

finding

of the State to respect the

the public

Here,

that,

321; and (2) "it

insofar

defenders

both factors

as

they

whom it

militate in

solicited

and

published (or declined to publish) advertisements from paying

third parties, the students

Certainly,

the power

of

acted under color of

school officials

state law.

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

regulation

with

involves

third parties.

near its

the

apex where

the subject

students' commercial

And where these

of the

interactions

interactions arguably

implicate the

constitutional rights of those

third parties,

cf. Dodson, 454 U.S. at 321-22, and hold out the prospect
___ ______

monetary benefit to the

of

Town, see, e.g., Burton, 365 U.S. at

___ ____ ______

-50-

724 (indicating that conduct which leads to monetary benefits

for

the State will

State),

often be deemed action

the question

is less

whether the

on behalf of the

students may

be

regulated and more whether the students must be regulated.

My position is narrow.

the

student

reporting

writers are

private

and editorializing.

I have never doubted

actors

A contrary

with

that

respect

holding

to

would,

after all, effectively spell the end of public school student

publications; one would

never

be hard-pressed to report

editorialize without

mandate of

violating the

viewpoint neutrality.

City of St. Paul, 504 U.S.

________________

See
___

377 (1992).

and could

First Amendment's

generally R.A.V.
_________ ______

v.

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

454

under color of state

law.

See Dodson,
___ ______

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

actors is

the very least,

are private

not such an open and shut matter that it should be

assumed sub silentio.

___ ________

run

If the student

determined

to

Democratic

candidates

Republican

candidates,

sought

that the students

injunctive

the

editors of the Musket

______

paid

political

for Town

office

and

relief

if

the

against

-51-

advertisements

but

not

Republican

the

students

those

of

of

candidates

in

their

capacities

as

editors

of the

Musket,
______

would

we summarily

conclude

that the challenged action was not undertaken under

color of

state law?

facts of the present

question

--

not

I would like to

think not.

Though the

case are less egregious, the underlying

presented

here

pleading decisions -- is the same.

III.

because

of

plaintiff's

For

the reasons stated, I concur in the majority's

conclusion that

defendants.

leads it

judgment was

I do

to this

properly entered

in favor

of

not, however, concur in the reasoning that

conclusion.

I would instead

resolve the

case under well settled law that precludes a finding, under

1983, against

any of the

defendants named

in the complaint

for the theories of recovery plaintiff has advanced.

-52-