Professional Documents
Culture Documents
No. 96-1623
Plaintiff, Appellant,
v.
Defendants, Appellees.
____________________
____________________
Before
____________________
Adam P. Forman,
________________
Olivier,
_______
appellees.
and
with
whom
were on
Sarah
______
brief
S. Mark Goodman,
________________
Michale C. Heistand,
____________________
Association,
Robert A. Bertsche,
___________________
Education
National Scholas
Association,
Scholas
Columbia Scholastic
Newspaper
James C. Heigham,
__________________
Press Advisers
and
the
Press Educat
Massachusetts Family
Publishers Association;
Associati
for
Institu
Massachuse
Selbee, Timothy B. Dyk, John Bukey, Jones, Day, Reavis & Pogue for
__________________________________ __________________________
National
School
Boards Association,
Illinois Association
of Sch
of School Superintendents, on
curiae.
____________________
December 9, 1997
____________________
OPINION EN BANC
Le
for
briefs am
____________________
-2-
interests
public
yearbook
on both
sides, arises
from
the decision
of two
--
not
to
publish
an
advertisement.
The
Lexington,
Massachusetts School
available to
students as
campaigned against
Committee
a public
to
make condoms
health matter.
Yeo had
and lost.
The
the
advertisement on
albeit
unwritten,
the grounds
of
not
running
that
each had
political
a policy,
or
advocacy
advertisements.
The
Town,
the
School
Committee,
officials
was terminated
judgment.
The
Superintendent
on defendants' motion
and
for summary
shown.
panel of
school
no state
judge
entered for
that each
the
Yeo on his
decisions not to
discrimination.
1997 WL
292173 (1st
-3-
Cir. June
that
view point
6,
1997).
This court
opinion.
granted en
The
withdrew the
district court
entering summary
panel
decision of the
on
I. The Facts
We review
Yeo,
the
party
opposing
summary
judgment,
drawing
all
Swain v.
_____
A. The Publications
________________
This
case involves
two
distinct
Lexington
High
LHS Musket.
______
year,
and the
staffing
Natalie Berger.
Karen
____________________
1.
The court
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;
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
-4-
of less than
stipend
Yearbook
advisor.
and the
use of
LHS buildings
is financially independent
and facilities,
the
and is
advertising.
Like
most
yearbooks,
pictures of seniors
academics,
This
and
the
LHS Yearbook
activities,
advertisement
and
section
an
was
included
on sports,
advertisement section.
largely
comprised
of
their
families.
As the
Yearbook
advertising
order form
meaningful
also
to
most
sold
local
businesses;
of
these
included
During the
1993-94 academic
year, the
Yearbook's
unwritten
local
policy was
to publish
advertisements
students frequented or
with
this
policy,
students
selling
ads
from those
had some
In keeping
targeted
those
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
groups or candidates
in a way that
competing issue
The
LHS Musket
______
is
a student-written
editorial,
operational, and
Chan
served as the
and
edited
made by
All
Ivan
Shen was
the
advisor.
editorial or operational
Musket has no
______
box; all
the faculty
decisions.
the layout
is done
the
The
at editors' homes.
The Musket
______
____________________
2.
The
neither
message
advocacy
contrary,
to the Yearbook or
with the
has
or accepted
an
the
the Musket.
______
Yearbook and
ever published
organization.
and
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
-6-
typically includes
news
articles
about
the
high
school,
and
humor
columns,
students.
edited,
and
produced by
is
all written,
"written,
edited and
editorial
page bears
opinions
stated there
distributed
by
legend stating
are those
students."
The
expressly that
the
of the student
editors or
that
cater
to student
tastes.
During the
1990s,
those
store,
a driving
school,
a deli,
a hair
salon,
SAT prep
dress shop.
an
For
The form
newspaper
provides
area
businesses
Musket."
______
The form
have to
that ads
were subject to
might have to be
be edited, by
depending on
-7-
non-profit
and
for length.
might
The
form
Pursuant
never accepted
to an
advocacy or
unwritten
policy, the
this
policy
was
to
Musket has
______
prevent the
Musket
______
The purpose of
from
becoming
The students
for
fear
that
such
advertising
would
be
read
as
an
endorsement of smoking.
In 1992,
policy
parental
permission.
political controversy in
This
to students at
measure
group
called
Policy," which
and other
was
the
LHS without
subject
distribution
Committee adopted a
"safe sex"
"Lexington
sponsored a
Citizens
of
a town
policies.
for
Yeo
Responsible
headed a
School
the policy
misrepresented
requested
Yeo
meeting
with
LHS
In January
Principal
David
1993, Yeo
Wilson
-8-
advised
Yeo that
student editors.
corrections would
Subsequently,
in
May
1993,
Lexington Parents
Information Network
stated
to
goal
was
distribute
Yeo
founded
("LEXNET").
information
the
LEXNET's
about
public
1. The Yearbook Ad
_______________
On
November 1, 1993,
submitted a full
page ad to the
Yeo, as Chairman
of LEXNET,
copy read:
The ad
Mechem, the
of the
a second thought.
the
submission
to
the
Natalie Berger, a
ad in the
with the
publisher for
the
printing
of proofs.
-9-
Yearbook.
of context"
However, she
the
In
January
1994,
large
number
of
proofs,
the
they
looked over
the
various
an editorial meeting
ads and
copy.
All
at which
After much
the Yearbook
and
had no
Although the
students decided to
that
place in
that
reject the
publication.
ad as drafted,
could be rewritten to
of
administration
the
faculty
or
prior
to
making
this
decision.
The
their decision.
their
request
The students
that
Yeo's
congratulatory graduation
ad
also asked
be
message.
Mechem to
revised
On
to
February
convey
express
1,
1994,
to
Yeo refused
submitted.
-10-
again, and
decided to
ad.
the
advertising
yearbook, we
the
have decided
advertising
Please
section
accept
inconvenience
you
my
of
not to
have
our
submitted.
apologies
that
the
for
the
reviewing
A $200
check was
enclosed.
Mechem
told Principal
Wilson
equal access
ad and
your decision to
We will not be
we do
cashing your
Should you
not reverse
your decision,
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
procedures
and rates.
The
-11-
as
the letter.
On January
25, Shen
wrote to
Yeo, providing
the
for the
delayed response.
Shen
concluded by
noting,
"Of
board."
On
Musket.
______
1994, Yeo
submitted an ad
to the
submitted,
the
February 1,
The
extensively.
Yeo's
In
mid-February,
ad constituted a
not run as
they met
and decided
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
to
we
could
not
accept
that
political
statement as an
advertisement.
Our own
If
we
were
to
accept
we at
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
print.
The
written, by
faculty advisor,
approval.
or requesting
In fact,
his, or
Kafrissen did
any other
the Musket
______
adult's,
about the
meeting, and
Sometime the
Kafrissen
Norman
and
next week,
informed him
Principal
that Lexington's
Wilson
called
Town Counsel,
Cohen
to
ad.
Kafrissen
and
Wilson agreed
issues in
students.
On
Musket met
_______
actions.
meeting
March
1,
supported
to discuss the
1994, the
with Kafrissen.
Although
number
Yeo's
student
into
the legal
editors
of the
of students
pro-abstinence
were uncomfortable
to look
the
views,
into a
March 1
they
were
bulletin board
-13-
at
an ad because someone
again
decided to
contact
Yeo and
reject the
to invite
ad.
him to
They asked
present
Kafrissen to
his views
in a
Kafrissen,
that day.
In
on behalf of
to Yeo
We have
the
long considered
the Letters
to
public
forum.
accepted
Historically
we
have
pages any
from your
you would
probably be
your
position on
than
you
format.
school
from
able
to
more fully
in
an
ad
presenting
you use
in which
able to explicate
abstinence
would be
student body.
your
organization
have
your
prevented you
message
to
the
the medium
message across
of a
in
letter to
get
greater detail,
in forcing
negative consequence
student staff.
were successful
of removing editorial
have the
Kafrissen.
Yeo declined
the offer on
In
letter,
that
Yeo
March 7 in
a letter to
explained
that
Firstly,
wanted
we
to
had
get
a
out
abstinent students
simple
that
message
would
we
affirm
-14-
his
. .
political in
our message.
Secondly,
react
They did.
Accordingly, Yeo
print it.
thought they
declined to write
would.
a letter
to the editor,
with it.
Yearbook
In spades.
ad could.
as
as an
to like it.
You just
have to
Touch ."
On
March
1, Yeo
met
with
Principal
Wilson
to
assured him that the ads would be printed, and told him
that
Meanwhile,
as
sources.
Mechem
the
controversy
heightened,
told
Wilson
that
the
from various
Dow-Chung
Chi,
the
Yearbook's co-editor-in-chief,
had asked
her: "If
breaking?"
In an
attempt to
with Wilson,
Kafrissen,
Mechem talked
we don't
advice
from the
Liberties Union of
they knew
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
federal Constitution
and
to decide
On
March
11,
1994,
LHS
officials
and
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
to
determine what
the students'
attended.
Young
reasoning
engaged in a thoughtful
were impressed with the way the students outlined the issues.
Young concluded by
like to do further
In
mid-March,
approached by a group
Musket
______
editor-in-chief
Chan
was
On March
At
that meeting,
Chan
of the entire
briefed the
-16-
a meeting
students on
attend.
the events
surrounding
the submission
of Yeo's ad.
On
March
18,
second
Superintendent
Young's office.
participants,
Lexington School
(LHS
Assistant
Principal
reiterated
their
refusal
meeting
In addition
Committee
Lawrence
run Yeo's
held
to the
in
prior
members attended.
Robinson
to
was
attended
in
Yearbook editors
ads.
The school
the
possible
litigation, and
exposure
consequences
described the
of
their
decision,
including
potentially unpleasant
expect.
Although
media
the students
to
make.
The
students
were
students' decision
repeatedly advised
that the
theirs to make
was
stand by
their decision.
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,
-17-
theirs.
Musket
Throughout Young's
has
been
student-run
official to
the students'
as
an
Superintendent, the
independent
interfere with
operated
tenure as
decision on
what to
publish.
invite Yeo,
on the students'
alternatives could
March 28,
would
be
behalf, to a
discussed.
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
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
The
decision to reject
Yeo's ad.
Chi
and Berger
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
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.
During
editors
of
the 1994-95
the
Yearbook
advertisements other
students.
Yeo
than
school year,
decided
new policy.
be distributed
type
of
organizations,
referendum
to
student
accept
from parents
any
and
with advertisement
advertisements,
not
personal notes
resubmitted his ad in
the new
forms, which
including
those
issues,
advocacy
from
states
the
"political
groups,
[and]
The newspaper
coverage
to
the
in
its
controversy
news pages
between
it
gave
and
extensive
Yeo,
thus
II.
Yeo's
the
refusal
Procedural History
action under 42
of
the
two
protection
Massachusetts
School
1983
publications
alleges that
to
Constitution and
Declaration of
Committee,
U.S.C.
Rights.
Superintendent,
Yeo
the
and equal
Art. 16
of the
sued the
Town,
Principal,
and
faculty
-19-
The
defendants
various grounds,
moved
including, inter
for
summary
alia, the
immunity.
judgment
lack of
on
state
and qualified
as
required
by
Massachusetts.
Local
Rule
56.1
of
the
Yearbook
advertisement.
District
of
by
the
and
The
the
newspaper
processes followed
in
rejecting
his
judgment
government
inquiry is whether
the
in the challenged
claimed injury.3
____________________
3.
The
'under color
of law'
requirement of
1983 "has
consistently been
treated as
action'
under
Fourteenth
required
States v.
______
the
which treated
as the same.
Asociacion de Empleados,
_________________________
Indeed, the
929 (1982).
'state
Amendment," United
______
1996).
as the
84 F.3d
490-491
(1st Cir.
inextricably
intertwined,
decision
of
the
state
action
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
This
--
the
school
officials acting
under a
statute5
of the
liability,
under
____________________
nor do
we
reach
the issue
of municipal
of
qualified
defendants.
The
these issues.
immunity
claimed
by
Stahl's concurrence
the
individual
we
of
causation, an
Yeo
even
has a
unusual
First
approach.
Amendment
is state action.
The
right
question
to assert
addressed
the
state
action
questions of causation.
U.S.
312,
325
before
(examining
only after
1983
defense
examining state
4.
614,
of
jurisdiction
1983 action."
Id. at 313.
___
the relevance of
500 U.S.
the "state
5.
right
of
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
cause
disorder within
Freedom
of
schools of the
no
action issue).
requisite for a
addressing
(1981)
municipal custom
question
. to
their
made by
such rights
expression of
school
policy
and
no school
officials
for any
expression made
-21-
Commonwealth
of
Massachusetts --
have
chosen
to
grant
The state
The modern
Court
do
not
state action
rely
on
decisions of
single
analytic
the Supreme
model
applied
observed,
the
'necessarily fact-
bound.'"
"state action
Lugar
_____
analytic
model
used
constitutional claim
First Amendment.6
(1981)
inquiry is
(state
must
being
take
account
asserted, here,
of
the
one
action
inquiry
shifts
The
specific
under
the
depending
on
____________________
Mass. Gen.
667
N.E.2d
869
protects even
(Mass.
vulgar speech
disorder results).
(holding
so
long as
We express no view
school to
that
no
the
statute
disruption
or
would have
permitted the
override the
students'
decisions.
6.
The "search
the
precise
addressed."
1715
. . .
ends by identifying
constitutional
issue
to
See also 1
_________
be
18-6, at
2.04,
varies
depending
on
the
asserted.").
-22-
constitutional
violation
constitutional
question asked).
to
the
gravamen
Yaretsky, 457
________
of the
"Faithful
. . . requires
adherence to the
careful attention
plaintiff's complaint."
(1982).
As
has noted:
We
recognize that
the
First Amendment,
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
_______
The
players, only
those
state
action
some of
individuals
who
issue
whom are
are
implicates
defendants.
public
school
a myriad
Yeo
sued only
administrators,
are
concededly state
editors.
But
the "action"
the editorial
actors.
students.
judgments not
He did
of which
of
not sue
They
the student
Yeo complains
was an
to publish
his
advertisement.
Those
judgments
were made
by
the
students, who
are
not
parties.
There
are
expressive interests
-23-
involved on
both
side are
The
identification of these
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
editorial
judgments.
students'
First
negligible.
U.S.
speech
Both
consequences
Amendment interests,
which
260 (1988)
(acknowledging but
interests when
school
ruling
officials
implicate
are
far
the
from
Kuhlmeier, 484
_________
against student
overrode students'
of high
school newspaper);
Tornillo,
________
remedy such
as [government]
private
newspaper
express
provisions of the
"brings about
confrontation
v.
of a
of a
with the
the judicial
____________________
7.
We
do
not
accept
the
suggestion
of
Judge
Stahl's
reporting and
decisions.
-24-
In
themselves
addition,
have
an
educational decisions.
the
interest
The
defendant
in
their
school
autonomy
officials
to
make
that
to respect in the
that exercised by
professional journalists.
That
choice by
editorial
Supreme
of responsibility for
Court
has
"oft
of
the
Nation's
education
responsibility
of
expressed
[the]
youth
is
parents, teachers,
and
view
that
primarily
state
The
the
the
and local
Hazelwood, 484
_________
U.S. at 272.
question.
that
their
Each
the actions
little guidance on
of public
constitutional
rights.
school
For
the state
action
a claim by students
administrators violated
example,
in Hazelwood,
_________
plaintiff
students contended
that
officials
violated
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
armbands
school
(1986)(civil rights
officials
Tinker v.
______
taken
violated First
against
Vernonia Sch.
_____________
Dist.
_____
claim
against
school
district).
Here,
in
contrast, the
question
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,
publications
Hazelwood discusses
_________
students,
that
there was an
intent to
a new state
_________
action analysis
bears
that
an imprimatur
any
of
school sponsored
the school
activity
which
thus constitutes
state
action.
-26-
editors of
reject an
a newspaper
ad.
See id.
___ ___
in a
at
55.
In
Sinn
____
v.
school to
The Daily
__________
that there
the state."
In
v. Goudelock,
_________
536
F.2d 1073, 1075 (5th Cir. 1976), a similar result was reached
in a suit
against the
or supervise
Avins
_____
v.
Rutgers, 385
_______
article
where the
without expressly
an
newspaper editor
F.2d
discussing
151,
what to
153-54 (3d
the state
action
did not
violate
the
First
students
not control
publish.
Cir.
In
1967),
issue,
the
rejection of
Amendment
because
journal.
But it is
school
also true
students
renders
them
more
given to these
like
their
high
older
is
state action
do so
where the
parties agreed
-27-
there was
makers were
government officials.
Ninth Circuit in
Clark County
____________
is inapposite
as state
action was
conceded.
reject the
Id.
__
1257
at 820.
There the
advertisement from
the
Likewise, in Lee v.
___
(7th Cir.
school officials
1971), state
plaintiff
organization.
where the
(1982), that
case is
Baker involved
_____
state actors.
rather the
a claim
mirror of this.
that private
Rendell________
school officials
were
actions of students.
The
students
The
theories
basically
devolve here
First, is
there state
publish were
officials?
for
into three
against)
by or
state
categories
actually made
(Even if
(and
action
of analysis.
decisions not
controlled by
to
the school
the school
Yeo argues,
exerted
student decisions.)
-28-
Second, even if
actively direct
or
control
the
intervene, and
for
decisions,
was
the
to do so in such a way
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
undisputed;
these facts.
the question
is
the
decisions
the
school
made
of the
officials
what conclusion
to draw
from
A.
Yeo
argues
that
the
decisions
were
made
or
controlled in fact
by the
conclusion.9
record
____________________
9.
Yeo calls
our attention
to the
fact that
the advisors
the
fact
that,
on
separate
occasion,
Kafrissen
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
decision
from
Kafrissen was
communicated
As
Yearbook editor
was made
the
for Mechem's
both stated
by the
word "we" in
students
Mechem wrote to
As to
Kafrissen's
students around.
as follows:
-29-
the school
officials, made
the decision.
Yeo
not
has offered
be shielded when it
or when it joins in
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-
not an
from the
instance in
which the
racially
This is also
government knowingly
discriminatory behavior
of
profits
privately
____________________
I have
to
order)
the
editorial,
student
news
advertisement.
matters
with
seemed
feature
not
to
article
On
the
accepted.
their
was
not
The
my
withdraw
editors
consulted with
the editorial.
one
engaged in
any
strongly
which, in
an
to address
I disagreed
student editorial,
run
or
over-the-line.
example, when
a proposed
opinion, took
editors
that
occasion, for
or
to withdraw
rather,
the uncontradicted
amount
to
no
evidence is
decision.
more
that Kafrissen
students felt
At bottom, Yeo's
than "conclusory
claim of
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
__________________
That
action
where
the government
tacitly
entangled with
private racial
U.S.
Even
at 724.
state
school
if that
officials
endorses
and becomes
discrimination.
Burton, 365
______
race discrimination
here, there
tacitly endorsed
is no
or
model for
evidence the
benefitted from
the
The
state
action
cases
also
consider
"de-
private
persons where
the state
has been
involved in
the
sense of delegating
private actor.10
In
Edmonson, a
________
to a
private litigant's
race-
action.
a government function
____________________
10.
U.S.
The school
179
officials point
(1988),
where
to NCAA
____
v. Tarkanian,
_________
an unincorporated
association
488
of
case the
But in
have a supervisory
-31-
nor
an
exclusive prerogative
country.
the
and public
schools not
newspapers.
does not
of
government
this
student newspapers,
The delegation of
in
student
Brooks,
______
436 U.S.
warehouseman
149 (1978)
did not
(sale of
constitute state
goods in
storage by
action); Jackson
_______
v.
B.
Secondly,
state has
a duty
to intervene
in actions taken
by private
is not one.11
may be some
See
___
occasions in
act where it
should act,"
be
there
duty to regulate
Cf.
___
(1989)
(finding
that the
affirmative duty on
deprivation
Due
Process
Clause
DeShaney v.
________
489
U.S. 189
imposes
no
citizens from
____________________
11.
by and
watch privately-contracted-for
prisoner to
action.
-32-
Here,
appears
the state
statute,
to
been
have
Mass.
Gen. Laws
intended,
in
ch.
part,
71,
to
82,
express
school
publications generally
have editorial
school
officials
action.
While the
and
that their
decisions
high
autonomy from
are
not state
of
S. Ct. 961,
971 (1995)
not
dispositive
of
governmental
constitutional rights
action
question
where
duty to act is
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]
acts."
v.
(1973)
CBS
___
(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
with the
Constitution prohibits
editors.
acting to
Hazelwood forecloses
_________
such a conclusion.
-33-
Supreme Court
to
editorial
accept any
advertising
of broadcasters not
were
not
government
action
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
part
of publications.
briefing
and
Id. at 116-19.
___
here on
be derived
running
administrators to
judgments of
student
-- which Yeo
from
schools and
in his
the traditional
the "symbiotic
C.
We
actions by the
are left
with
the
students should
third theory:
that
be attributed to the
the
school
the
conduct
may be
any duty.
"fairly
attributable
to
the
whether
state."
and
of Puerto
Rico to
organization of governmental
act, no
traditional government
employees
function
state is shown).
-34-
Of
public school
actors.
Persons do
clients of
hospital
government services,
patients,
or
truancy
and mandatory
attendance.13
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
Yeo
that there
the
Rendell-Baker terminology,
_____________
is a sufficient nexus
actions to the
argues, using
state.
But examining
financial support
of the
publications
finding.
Baker,
_____
See
___
Blum v.
____
institution's receipt of
institution's decisions
U.S.
at 840.
budget is
This
state action.
can be
almost entirely
Rendell________
so even when
derived from
render that
Rendell-Baker,
_____________
457
the institution's
public money.
Id.
__
____________________
13.
We distinguish those
himself a
compulsory client of
the government,
private
actors
who provide
See West
___ ____
such as
v. Atkins, 487
______
under
U.S. 42
-35-
is
The
system other
Yearbook
receives no
money
assistance it
small stipend
does
greater
receive
school
system.
conclusive.
between
regulation,
oversight.
action
not
However, these
Id.
___
at issue
merely
The
Musket
______
Much
of its
facts
the
school
advisor.
financial assistance.
the
from the
on
and
the
are
far
from
the
state
amount
of
funding
state
aid
and
or
financial
That
Yeo's "nexus"
argument
turns
on
context.
personalities in a
is
The
and
The newspaper
other
and
students
financial
form it
permit
the community.
does because
it
to do
so.
It
interactions with
does
influence.
faculty advisors
the school
While not
-36-
receive some
part
of
law
the for-credit
educational value
students.
student
functions
hours.
close
The
on
school
editors
grounds,
perform
perhaps even
credential for
some
of
during
their
school
It is a
in a unique way
by the incidents
of government
authority."
The
asked.
public
representation of a
defender is
not
question
state actor
in
she may
firing decisions.
acknowledging that
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
____________________
14.
Cf.
__
Hastings
Marjorie
Const.
Heins,
L.Q.
Viewpoint
Discrimination,
__________________________
99,
159
(1996)("Public
24
education
purposes,
yet
also
quintessential
-37-
forum
for
judgment in the
sector.
Id. at 321-22.
___
Here,
school
the
So too here.15
students'
relationship
to
the public
was certainly
independent.
adversarial.
lawsuit
decision.
The
times,
school officials
it
gained
was
close
nothing
to
but a
It is
decisions took
some
At
themselves,
was
governmental
funding
of
the
publication,
that
teachers
made an
on both sides of
there is
____________________
15.
Similarly,
in
Edmonson,
________
not
all
of
the
action;
only the
race-based
See
___
Edmonson, 500
________
challenges were.
was, in
the
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
been
This
of democratic
Id. at 628.
___
implicate the
of peremptory
the integrity of
the acquiescence
deemed to be
U.S. at 621-22.
bias mars
exercise
litigation
this were
excluded
from
to intervene,
the
analysis
would focus
on a
different decision
and most
likely would
-38-
Because the
the
independent
judgment
of the
student
editors
was
of both
Yeo.
The decision of
is affirmed.16
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
the majority
important
opinion but
issue that
write separately
I concur with
to highlight
to address
an
-- the
The
regulation
of
speech
in
forums
that
have
"traditional public
forums" include
streets, sidewalks
These
and
parks.
Id.
___
In
discourse, the
order to
state may,
further aid
from time
citizens' political
to time, create
a new
The regulation
to strict scrutiny.
See id. at
___ ___
46.
However, it
is simply
state actor
has been
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
a public forum by
government
inaction or by permitting
limited
discourse,
nontraditional
but
forum for
only
by
public
intentionally
_____________
discourse."
opening
Cornelius v.
_________
788, 802
-40-
(1985)
(emphasis
(when
the
speech,
government
public forum
government intended
________
opens a
has
forum for
not
to create a
been
certain
types of
created unless
the
when
school newspapers
alongside
that
and
U.S. at 48
(same).
Therefore,
yearbooks
publish
advertising
editors are
pictures, it cannot
be said
a forum for
This
Circuit
has
observed
that
"in determining
designated public
property
to be
public
forum, courts
should
be
highly
where
those
decisions
discrimination.
do
not
evidence
viewpoint
MBTA, 42
____
issue
the paper
material.
intent
See
___
Cornelius, 473
_________
regarding a
forum
U.S.
for speech
at
802 (government's
must be
gleaned from
-41-
v. Maine
_____
(same).
or public
47 (1st Cir.
1991)
request
When
nontraditional
the
state
solicits
public forum, it
advertising
is permitted to
for
filter out
pure
political speech.
Disallowing this
See
___
Lehman,
______
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.
that
at
down potentially
(recognizing
418 U.S.
and
(Brennan, J.,
dissenting),
For this
-42-
Though I
in the judgment.
in the judgment.
on the facts
of this case,
state law,
review leads me
to our
judgment in favor of
reasons.
color of
First,
defendants.
because this
case is
easily resolved
on
could
conclude
constitutional
that
violation
the
defendants
complained
of
-- I
"caused"
believe
the
the
--
breach of the
that
action ruling to be
an unfortunate
[courts] will
not
restraint . . .
reach constitutional
questions
Three Affiliated
________________
Second,
in
157 (1984).
unnecessary constitutional
I.
Defendants
cannot
be
liable
to
plaintiff
for
federal rights.
U.S.C.
See 42
___
1983.
Because
the Supreme
it clear that
to be narrowly
-43-
of Social Servs.,
________________
the
language
of
1983
to
preclude
(1978) (interpreting
the
imposition
of
vicarious liability),
the question
having
to
least, be seen as
See id.
___ ___
As
the
majority
alleged
of
deprivation
protection rights.
his
Nor has
First
Amendment
plaintiff argued
and
equal
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
Febus-Rodriguez
_______________
standard
1983).
As
for
v.
Cir. 1994)
establishing
a result, no trial
colluded with
the students
in the
defendant actually
decisions to
reject the
or
custom of
the Town
of Lexington.
See, e.g.,
___ ____
-44-
Board of
________
1388 (1997)
(reiterating that,
for purposes
of
1983, a
municipality
only
evidence
to
warrant
In my
trial
against
any
of
the
named
Though I continue to
conclusion that
defendants
Kafrissen
and
Mechem
majority's
did
not
influence
the
students'
decisions
to
reject
the
permits only
decisions.
the face
effect,
one inference:
In the
of
the
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
to
the other
agree
that
participated
individually-named
there
is
no
basis
defendants, so
also do
for concluding
that
they
Thus,
there
is
insufficient evidence
of statutory
causation for
individual
defendants.
-45-
With
respect
to
the
Town,
agree
with
the
majority's
to
conduct
it the
Sections
A and C.
of the
students.
I take issue,
See
___
ante
____
Part III,
Specifically, I
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
_____
(1996);
Burton v.
______
(1961);
Jackson
_______
generally
_________
U.S. 461
116
436 U.S.
id.
___
(1953);
S. Ct.
1186
365 U.S.
715
149 (1978);
U.S. 345
(1974);
500
U.S.
614
to this lawsuit,
(1991),
all of
v.
to
whom
are public actors, are not liable for the students' conduct).
under
(strongly
funding
supporting
nor
an
municipal
Rendell-Baker, 457
_____________
argument
that
regulation
of
U.S. at 840-41
neither
municipal
private
for purposes of
1983), not
conduct by
non-legislative and
non-policy making
entity
can
actors be
-46-
deemed to have
or custom
municipal policy
seen as
by public actors.
______
can be
For these
it clarifies.
and should
avoid.
fact (if it be
students' actions
Again, plaintiff
the Town's
decision to let
liability flows
II) that
a theory of
liability
-- the only
here.
that, as
an action taken
in what appears to
82,
liability under
1983.
In
because
the end,
they did
conduct of the
defendants are
not, under
entitled to
1983, ultimately
non-party students.
II.
-47-
We
judgment
cause the
By
those cases
resolving this
dispute through
application of
the majority proceeds from the premise that the students were
private actors.
unnecessary,
my view,
implicit holding to be
In
would
have been
public
actors
obliged to
insofar
as
rule that
they
they were,
solicited
and
in fact,
published
actor
obviously cannot
be resolved
through
application of
by a fact-specific inquiry
County v. Dodson,
______
______
distinction).
stated that
Although
the state
the
Supreme
action and
See Polk
___ ____
Court
has
sometimes
under color of
state law
383 U.S. 787, 794 and n.7 (1966), it also has recognized that
they
are
not
invariably
the
same.
That
the
inquiries
to a
single state
action case,
that a
while acting as
counsel to an indigent
criminal proceeding.
defendant in a state
-48-
Here,
as
in Dodson,
______
the question
(had plaintiff
raised it) would not have been whether private conduct should
the conduct
was, as
an initial
matter, public
or private.
"those cases
in which the
defendant is a
for
purposes of
the
so at to make it 'state'
Fourteenth Amendment"
action
with "cases
in
laws or
regulations by
parties in
majority
state officials
the lawsuit").
relies
upon,
And
who are
themselves
designed as
they
tests the
are
to determine
is attributable to the
state, would
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
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.,
___ ____
We
decide it
on a more
by virtue
of state
has "exercised
-49-
contextually-
possible
authority of
state law.'"
42,
49
students
Id.
___
(1988)).
are
So
public
here
or
should
private
v. Atkins, 487
______
we
decide whether
actors
by
reference
U.S.
the
to
be used?
helpful starting
primary
considerations:
amenable to
(1)
"a
public
administrative direction
defender
in the
is
same sense
not
as
other employees
professional
engages,"
favor
of
independence of
id. at
__
321-22.
finding
the public
Here,
that,
insofar
defenders
both factors
as
they
whom it
militate in
solicited
and
Certainly,
the power
of
school officials
state law.
to regulate
the
266-70
(1988), is
regulation
with
involves
third parties.
near its
the
apex where
the subject
students' commercial
of the
interactions
interactions arguably
implicate the
third parties,
cf. Dodson, 454 U.S. at 321-22, and hold out the prospect
___ ______
of
-50-
for
State),
the question
is less
whether the
on behalf of the
students may
be
My position is narrow.
the
student
reporting
writers are
private
and editorializing.
actors
A contrary
with
that
respect
holding
to
would,
never
be hard-pressed to report
editorialize without
mandate of
violating the
viewpoint neutrality.
See
___
377 (1992).
and could
First Amendment's
generally R.A.V.
_________ ______
v.
officials of that
454
law.
See Dodson,
___ ______
color of state
At
actors is
are private
run
If the student
determined
to
Democratic
candidates
Republican
candidates,
sought
injunctive
the
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
color of
state law?
question
--
not
I would like to
think not.
Though the
presented
here
III.
because
of
plaintiff's
For
conclusion that
defendants.
leads it
judgment was
I do
to this
properly entered
in favor
of
conclusion.
I would instead
resolve the
1983, against
any of the
defendants named
in the complaint
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