OPINION EN BANC
LYNCH, Circuit Judge.
This case, involving speech interests on both sides, arises from the decision of two public high school student publications — the newspaper and yearbook — not to publish an advertisement. The advertisement promoted sexual abstinence and was proffered by a parent, Douglas Yeo, in the aftermath of a decision by the Lexington, Massachusetts School Committee to make condoms available to students as a public health matter. Yeo had campaigned against the condom distribution policy and lost. The two high school student publications declined to publish the advertisement on the grounds that each had a policy, albeit unwritten, of not running political or advocacy advertisements.
The civil rights action brought by Yeo against the Town, the School Committee, Superintendent and school officials was terminated on defendants' motion for summary judgment. The district court judge concluded that no state action had been shown. A panel of this court, this judge dissenting, reversed, holding that summary judgment should be entered for Yeo on his claims that there was state action, that each student publication was a public forum, and that the
I. The Facts
We review the facts in the light most favorable to Yeo, the party opposing summary judgment, drawing all reasonable inferences from the record in his favor. Swain v. Spinney, 117 F.3d 1, 2 (1st Cir.1997).
A. The Publications
This case involves two distinct Lexington High School (LHS) student publications, the LHS Yearbook and the LHS Musket. The Yearbook was operated entirely by a staff of about sixty students; all editorial, business, and staffing decisions were made by students. During the 1993-94 academic year, this staff was headed by two co-editors-in-chief, Dow-Chung Chi and Natalie Berger. Karen Mechem, a LHS teacher, was the Yearbook faculty advisor. Mechem was paid a stipend of less than $2,000 for that activity. Apart from Mechem's stipend and the use of LHS buildings and facilities, the Yearbook is financially independent from the school and is funded entirely through the sale of the books to students and advertising.
Like most yearbooks, the LHS Yearbook included pictures of seniors and other students, sections on sports, academics, and activities, and an advertisement section. This advertisement section was largely comprised of congratulatory or commemorative ads purchased by students and their families. As the Yearbook advertising order form suggested, student ads might include "[b]aby pictures, group photos taken in the setting of your choice, [or] pictures of meaningful people and/or places." A few advertisements were also sold to local businesses; most of these included congratulatory messages to the graduating class.
During the 1993-94 academic year, the Yearbook's unwritten policy was to publish advertisements from those local businesses which the students frequented or had some relationship with during their high school years. In keeping with this policy, students selling ads targeted those businesses that fit the Yearbook theme of fond memories. The Yearbook's policy was not to publish any political or advocacy advertising, including ads from candidates for student government.
The LHS Musket is a student-written and edited newspaper that is published four or five times a year. All editorial, operational, and staffing decisions are made by the student editors. During the 1993-94 academic year, Ivan Chan served as the Musket's editor-in-chief, Dong Shen was the business manager, and Samuel Kafrissen was the faculty advisor. Students do not seek or obtain the approval of the faculty advisor for any
Not every issue of the Musket contains advertising. Those that do contain two or three small ads from businesses that cater to student tastes. During the 1990s, those advertisers have included a bookstore, a video store, a music store, a driving school, a deli, a hair salon, SAT prep courses, and, around prom time, a tuxedo rental store and a dress shop. For the 1993-94 school year, the Musket created an "Advertisement Form" for potential advertisers. The form stated that: "The award winning Lexington High School student newspaper provides area businesses and non-profit organizations the opportunity to place advertisements in the Musket." The form did not state that ads were subject to editorial approval, although it did note that, depending on the issue, ad size might have to be adjusted and ads might have to be edited, by the paper's staff, for length. The form also stated that "[p]ayment ... for an ad will occur only if and after we publish an ad." (emphasis added).
Pursuant to an unwritten policy, the Musket has never accepted advocacy or political advertising, including that from candidates for student government. The purpose of this policy was to prevent the Musket from becoming a "bulletin board" for warring political ideas. The students also rejected the idea of allowing cigarette ads in the paper for fear that such advertising would be read as an endorsement of smoking.
B. Yeo's Submission of Advertisements
In 1992, the Lexington School Committee adopted a policy making condoms available to students at LHS without parental permission. This measure was the subject of political controversy in Lexington, and Douglas Yeo, a town resident and parent, emerged as a leading opponent of condom distribution and other "safe sex" policies. Yeo headed a group called "Lexington Citizens for Responsible School Policy," which sponsored a nonbinding town-wide referendum on the School Committee's condom policy.
The Musket ran both news articles and editorials on the policy and the referendum. Yeo thought these articles misrepresented his group's position. In January 1993, Yeo requested a meeting with LHS Principal David Wilson concerning his grievance. Wilson suggested that Yeo submit a letter to the editor correcting the alleged inaccuracies, but advised Yeo that any decisions regarding corrections would have to be made by the student editors. Yeo did not contact the student editors. In March 1993, the voters of Lexington approved the condom distribution policy.
Subsequently, in May 1993, Yeo founded the Lexington Parents Information Network ("LEXNET"). LEXNET's stated goal was to distribute information about public education to parents via newsletters and meetings.
1. The Yearbook Ad
On November 1, 1993, Yeo, as Chairman of LEXNET, submitted a full page ad to the 1994 LHS Yearbook. The ad copy read:
We know you can do it!
ABSTINENCE: The Healthy Choice
Sponsored by: Lexington Parents Information Network(LEXNET)
Post Office Box 513, Lexington Massachusetts 02173.
The ad was accompanied by a check for $200.00.
Mechem, the Yearbook advisor, acknowledged receipt of the check and placed the ad
In January 1994, a large number of proofs, including those of Yeo's ad, came back from the printer. All the student editors attended an editorial meeting at which they looked over the various ads and copy. After much discussion, the editors decided that Yeo's ad was a political advocacy statement that was out of context with the rest of the Yearbook and that had no place in that publication. Although the students decided to reject the ad as drafted, they still wished to include a message from LEXNET if the ad could be rewritten to conform with the rest of the Yearbook. The students did not consult with Mechem or any other member of the faculty or administration prior to making this decision.
The Yearbook editors asked Mechem to notify Yeo of their decision. The students also asked Mechem to convey their request that Yeo's ad be revised to express a congratulatory graduation message. On February 1, 1994, Mechem called Yeo, and told him that the students would like to have the ad rewritten. Yeo refused to revise the ad and threatened to sue the Yearbook unless his ad was published as submitted.
The student editors discussed the issue again, and decided to stand by their original decision to reject Yeo's ad. They asked Mechem to write to Yeo, returning his check. On February 4, Mechem wrote to Yeo:
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:
2. The Musket Ad
On January 3, 1994, Yeo wrote to Dong Shen, a senior and the business manager of the Musket, requesting information about advertising procedures and rates. The letter was not on LEXNET stationary and did not identify Yeo as a member of that group. Receiving no reply, Yeo wrote to Shen again on January 20, requesting the information "as soon as possible," and copying Ivan Chan, the editor-in-chief, on the letter.
On January 25, Shen wrote to Yeo, providing the requested information and taking full personal responsibility for the delayed response. Shen concluded by noting, "Of course ads are still subject to the approval of the editorial board."
On February 1, 1994, Yeo submitted an ad to the Musket. The text was identical to the Yearbook ad previously submitted, except that, above LEXNET's address, it contained the line: "For accurate information on abstinence, safer sex and condoms, contact:[LEXNET]."
The student editors of the Musket discussed the ad extensively. In mid-February, they met and decided that Yeo's ad constituted a political statement that they would not run as a matter of policy. On February 24, 1994, Shen wrote to Yeo:
The decision was made, and the reply written, by the student editors without consulting Kafrissen, the Musket faculty advisor, or requesting his, or any other adult's, approval. In fact, Kafrissen did not even know about the ad's submission until the time of the editorial meeting, and did not see the ad or the students' response until after the reply had been sent.
Sometime the next week, Principal Wilson called Kafrissen and informed him that Lexington's Town Counsel, Norman Cohen, had been contacted by Yeo's lawyer; the lawyer had threatened to sue the town and the school authorities if the ad was not run. Cohen thought that it would be best to avoid a lawsuit and requested that the students publish Yeo's ad. Kafrissen and Wilson agreed to look into the legal issues in greater depth and to discuss the matter with the students.
On March 1, 1994, the student editors of the Musket met with Kafrissen. Kafrissen informed them of Yeo's actions. Although a number of students at the March 1 meeting supported Yeo's pro-abstinence views, they were concerned that the Musket might turn into a bulletin board for advocacy on lifestyle issues. Additionally, the students were uncomfortable with having to run an ad because someone had threatened to sue them if they did not. The editors once again decided to reject the ad. They asked Kafrissen to contact Yeo and to invite him to present his views in a "letter to the editor."
Kafrissen, on behalf of the Musket, wrote to Yeo that day. In the letter, Kafrissen suggested that Yeo write a letter to the editor:
The letter concluded by noting that, if Yeo were successful in forcing the Musket to print the ad, this would have the negative consequence of removing editorial control from the student staff.
Yeo declined the offer on March 7 in a letter to Kafrissen. In that letter, Yeo explained that his organization decided to sponsor the ads for two reasons:
Accordingly, Yeo declined to write a letter to the editor, which, he felt, could not make the point as concisely as an ad could. Yeo insisted that the ad be run as submitted, "as is our legal right," and concluded, "You don't have to agree with it. You don't even have to like it. You just have to print it. Touché."
C. The Administration's Response and the Students' Decisions
On March 1, Yeo met with Principal Wilson to discuss the ads. Yeo believes that, at that meeting, Wilson assured him that the ads would be printed, and told him that the Town Attorney had advised publication.
Meanwhile, as the controversy heightened, the students and faculty alike were seeking advice from various sources. Mechem told
On March 11, 1994, LHS officials and student editors met in the office of the Superintendent of Schools, Jeffrey Young. Yearbook editors-in-chief Berger and Chi, Musket editor-in-chief Chan, advisors Kafrissen and Mechem, Superintendent Young and Principal Wilson attended. Young asked questions to determine what the students' reasoning was, and to determine that they had engaged in a thoughtful process prior to the meeting. The administrators and faculty were impressed with the way the students outlined the issues. Young concluded by stating that he would like to do further research and to obtain legal advice.
In mid-March, Musket editor-in-chief Chan was approached by a group of students who were offended by Yeo's efforts and who wished to place a "counter ad" in the Musket. The proposed ad looked exactly like Yeo's ad except that, in place of "Abstinence: The Healthy Choice," it read "Safe Sex: The Healthy Choice." Chan decided to reject the counter-ad, and informed the staff that it would not be published.
On March 13, Chan called a meeting of the entire Musket staff; Kafrissen was not invited and did not attend. At that meeting, Chan briefed the students on the events surrounding the submission of Yeo's ad. The student staff unanimously opposed publication of Yeo's ad.
On March 18, a second meeting was held in Superintendent Young's office. In addition to the prior participants, Lexington School Committee members attended. (LHS Assistant Principal Lawrence Robinson attended in Principal Wilson's stead). The Musket and Yearbook editors reiterated their refusal to run Yeo's ads. The school officials and School Committee members warned the students of the possible consequences of their decision, including litigation, and described the potentially unpleasant media exposure the students could expect. Although the students felt that the school officials wanted them to print the ads, the officials maintained that it was the students' decision to make. The students were repeatedly advised that the ultimate decision about publication of the advertisement was theirs to make and the school administration would stand by their decision.
Following the March 18th meeting, Chan held several further discussions with individuals and groups from the Musket's staff. Finally, with the staff's support, Chan conclusively decided not to run Yeo's ad as a matter of policy.
On April 11, 1994, the Superintendent again met with the Musket staff and again told them the decision was theirs. Throughout Young's tenure as Superintendent, the Musket has been operated as an independent student-run newspaper and he has never authorized any school official to interfere with the students' decision on what to publish. Yeo offers no evidence to the contrary.
As for the Yearbook, Chi and Berger asked Mechem to invite Yeo, on the students' behalf, to a meeting at which alternatives could be discussed. Yeo wrote to Mechem on March 28, informing her that, on the advice of counsel, he would not be able to meet with the student editors, and requesting that all further inquiries be addressed to his lawyer at the Rutherford Institute in Virginia.
Berger then called a meeting of all the Yearbook section editors. Mechem attended the beginning of the meeting and urged the students to consider the school officials' advice. Mechem then left the meeting. The students discussed the issues raised at the March 18 meeting. The students reaffirmed
This litigation followed.
During the 1994-95 school year, the new student editors of the Yearbook decided not to accept any advertisements other than personal notes from parents and students. Yeo resubmitted his ad in September 1994, but it was rejected under the new policy. The 1994-95 Musket staff drafted explicit "Advertisement Policies and Procedures," to be distributed with advertisement forms, which states the type of advertisements, including those from "political organizations, referendum issues, advocacy groups, [and] public service organizations," that the Musket will not print.
The newspaper in its news pages gave extensive coverage to the controversy between it and Yeo, thus providing Yeo with coverage of his pro-abstinence position.
II. Procedural History
Yeo's action under 42 U.S.C. § 1983 alleges that the refusal of the two publications to print the advertisements violated his rights to free speech and equal protection under the U.S. Constitution and Art. 16 of the Massachusetts Declaration of Rights. Yeo sued the Town, School Committee, Superintendent, Principal, and faculty advisers but did not name the students as defendants.
The defendants moved for summary judgment on various grounds, including, inter alia, the lack of state action, that no public forum had been created, and qualified immunity. Yeo opposed summary judgment, but did not submit a statement of disputed facts in opposition to summary judgment as required by Local Rule 56.1 of the District of Massachusetts. Yeo conceded at his deposition that he had no personal knowledge of the decision making processes followed by the Yearbook and the newspaper in rejecting his advertisement. The district court granted summary judgment on the state action issue without reaching the other issues. We affirm on the same ground.
III. State Action
The essential state action inquiry is whether the government has been sufficiently involved in the challenged actions that it can be deemed responsible for the plaintiff's claimed injury.
This is a situation in which the government actors — the school officials acting under a statute
The modern state action decisions of the Supreme Court do not rely on a single analytic model applied regardless of the fact patterns involved. As this Court once observed, the "state action inquiry is `necessarily fact-bound.'" Ponce v. Basketball Federation of the Commonwealth of Puerto Rico, 760 F.2d 375, 377 (1st Cir.1985) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 939, 102 S.Ct. 2744, 2754-55, 73 L.Ed.2d 482 (1982)). The analytic model used must take account of the specific constitutional claim being asserted, here, one under the First Amendment.
Denver Area Telecomm. Consortium, Inc. v. Federal Communications Comm'n, ___ U.S. ___, ___, 116 S.Ct. 2374, 2383, 135 L.Ed.2d 888 (1996).
The state action issue implicates a myriad of players, only some of whom are defendants. Yeo sued only those individuals who are public school administrators, teachers, or members of the Lexington School Committee. They are concededly state actors. He did not sue the student editors. But the "action" of which Yeo complains was an action taken by the students. The "actions" he assails were the editorial judgments not to publish his advertisement. Those judgments were made by the students, who are not parties.
There are expressive interests involved on both sides of this case. Yeo's are obvious. Those on the other side are perhaps less obvious. The identification of these interests puts the state action question in context.
If the actions by the students are themselves state action or may be attributed to the school officials and provide the basis for state action, the inevitable legal consequence will be some level of judicial scrutiny of the
In addition, the defendant school officials themselves have an interest in their autonomy to make educational decisions. The officials have determined that the best way to teach journalism skills is to respect in the students' editorial judgments a degree of autonomy similar to that exercised by professional journalists. That choice by the officials parallels the allocation of responsibility for editorial judgments made by the First Amendment itself. The Supreme Court has "oft expressed [the] view that the education of the Nation's youth is primarily the responsibility of parents, teachers, and state and local school officials, and not of federal judges." Hazelwood, 484 U.S. at 272, 108 S.Ct. at 571.
The leading Supreme Court decisions concerning high schools and students are all meaningfully different from this case, and thus provide little guidance on the state action question. Each of those cases involved a claim by students that the actions of public school administrators violated their constitutional rights. For example, in Hazelwood, plaintiff students contended that officials violated the First Amendment by deleting articles from student newspaper. State action was simply not at issue in Hazelwood because the relevant actions were admittedly taken by public school officials.
Each court of appeals which has considered the state action requirement in the context of attempts to attribute student-controlled editorial decisions in public institutions of higher education to public officials has found no state action. In Leeds v. Meltz, 85 F.3d 51 (2d Cir.1996), the court found no state action where school officials and students were sued over the decision by student editors of a newspaper in a state-supported law school to reject an ad. See id. at 55. In Sinn v. The Daily Nebraskan, 829 F.2d 662, 665 (8th Cir.1987), the court held that there was no state action in the refusal to print an ad where the student paper "maintains its editorial freedom from the state." In Mississippi Gay Alliance v. Goudelock, 536 F.2d 1073, 1075 (5th Cir.
The only decisions we have found which assume there is state action do so where the parties agreed there was state action and it was undeniable the decision makers were government officials. The decision by the Ninth Circuit in Planned Parenthood of Southern Nevada Inc. v. Clark County School District, 941 F.2d 817 (9th Cir.1991), is inapposite as state action was conceded. There the school officials themselves controlled the school publications and decided to reject the advertisement from the plaintiff organization. Id. at 820. Likewise, in Lee v. Board of Regents, 441 F.2d 1257 (7th Cir. 1971), state action was conceded where the student newspaper was a "state facility".
While all parties appropriately point us toward the state action analysis in Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982), that case is rather the mirror of this. Rendell-Baker involved a claim that private school officials were state actors. Here the claim is that public school officials may be sued based on the actions of students. The students are themselves at least facially private actors.
The theories for (and against) state action basically devolve here into three categories of analysis. First, is there state action because the decisions not to publish were actually made by or controlled by the school officials? (Even if the decisions were not directly made by the school officials, those officials, Yeo argues, exerted such influence as effectively to determine the outcome of the student decisions.) This is primarily a factual question.
Second, even if the state did not actively direct or control the decisions, was the state required to intervene, and to do so in such a way as to provide a basis for a state action finding? This is primarily an issue of law.
Third, even if the decisions were made independently by the students, may the decisions of the students fairly be attributable to the school officials because of the public school setting? The material facts are undisputed; the question is what conclusion to draw from these facts. We take each argument in turn.
Yeo argues that the decisions were made or controlled in fact by the school officials, but the record does not support that conclusion.
Nonetheless, the state action cases recognize that government should not be shielded when it is the real actor behind the scenes or when it joins in a charade designed to evade constitutional prohibitions. See Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953)(Democratic Party "club" was a state actor designed to evade constitutional prohibition against all-white primaries); cf. Morse v. Republican Party of Virginia, 517 U.S. 186, 116 S.Ct. 1186, 134 L.Ed.2d 347 (1996). That is not true here. This is also not an instance in which the government knowingly profits from the racially discriminatory behavior of a privately owned enterprise. See, e.g., Burton v. Wilmington Parking Auth., 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); Blum, 457 U.S. at 1010-11, 102 S.Ct. at 2788-89. That type of symbiotic relationship has been found to create state action where the government tacitly endorses and becomes entangled with private racial discrimination. Burton, 365 U.S. at 724, 81 S.Ct. at 861. Even if that race discrimination model for state action were imported here, there is no evidence the school officials tacitly endorsed or benefitted from the students' decisions not to run Yeo's ads.
The state action cases also consider "de-privatizing" and attributing to the government the actions of private persons where the state has been involved in the sense of delegating traditional governmental authority to a private actor.
Secondly, while there may be rare occasions when a state has a duty to intervene in actions taken by private persons which could give rise to a state action finding, this is not one.
The First Amendment free speech and free press guarantees do not involve a duty by the government to act where there is otherwise no state action. Indeed, those guarantees are largely based on prohibitions against government action.
We are left with the third theory: that the actions by the students should be attributed to the school officials, despite the officials' lack of actual or effective control and the lack of any duty. The key issue is whether the conduct may be "fairly attributable to the state." Barrios-Velazquez v. AEELA, 84 F.3d 487, 491 (1st Cir.1996) (citations and internal quotation marks omitted) (no state action where state did not compel organization of governmental employees of Puerto Rico to act, no traditional government function involved, and no interdependence and joint participation with state is shown).
Of course, the fact that the newspaper editors are public school students does not, in itself, make them state actors. Persons do not become state actors because they are clients of government services, whether they are students, hospital patients, or prison inmates. Some, like the students, are government clients by compulsion — here, the truancy and mandatory education laws compel the students' attendance.
Yeo argues, using the Rendell-Baker terminology, that there is a sufficient nexus to attribute the students' actions to the state. But examining the nexus here between state regulation and financial support of the publications and the challenged decisions militates against a state action finding. See Blum v. Yaretsky, 457 U.S. at 1004, 102 S.Ct. at 2785-86; Rendell-Baker, 457 U.S. at 838-41, 102 S.Ct. at 2769-71. It is established that a private institution's receipt of state funding does not render that institution's decisions state action. Rendell-Baker, 457 U.S. at 840, 102 S.Ct. at 2770-71. This can be so even
The Yearbook receives no money from the school system other than the indirect assistance it gets from the small stipend received by its faculty advisor. The Musket does receive greater financial assistance. Much of its operating costs as well as its advisor's stipend are paid by the school system. However, these facts are far from conclusive. The focus in Rendell-Baker was on the interplay between the action at issue and the state funding and regulation, not merely on the amount of state aid or oversight. Id. There was no interplay between the decision not to publish the advertisement and the state's provision of financial and faculty support. That the principal kept the checkbook for the school newspaper had nothing to do with the students' decisions whether or not to run the ads.
Yeo's "nexus" argument turns on context. The Yearbook does memorialize in photographs the experiences and personalities in a public high school class. The newspaper is the newspaper of the public high school; its name is the "Lexington High School Musket" and it identifies itself with the high school in its communications and interactions with other students and the community. It does receive some financial support from the school and the faculty advisors may have some subtle influence. The newspaper exists in the form it does because the school authorities and state law permit it to do so. While not part of the for-credit educational curriculum, work on the Musket does have explicit educational value and provides an attractive credential for students. The student editors perform some of their functions on school grounds, perhaps even during school hours. All of these factors support Yeo's argument. It is a close question whether the injury caused here "is aggravated in a unique way by the incidents of government authority." Edmonson, 500 U.S. at 622, 111 S.Ct. at 2083 (citation omitted).
The Supreme Court has taught that the state action question may shift depending on the context and the question asked. A public defender is not a state actor in her representation of a criminal defendant, even though she may be one in the performance of other duties, such as hiring or firing decisions. See Polk County, 454 U.S. at 324-25, 102 S.Ct. at 453-54. Even acknowledging that the public defender is a state employee, Polk County considered it important that, in the actual function of defending the client, the public defender's relationship to the state was necessarily independent, and even adversarial, and that the defender exercised independent judgment in the same manner as did attorneys in the private sector. Id. at 321-22, 102 S.Ct. at 451-52. So too here.
Here, the students' relationship to the public school officials in the exercise of their editorial judgment was certainly independent. At times, it was close to adversarial. The school officials gained nothing but a lawsuit from the students' decision, and the officials might themselves, as they told the students, have made a different decision. It is not enough to create state action that the decisions took place in a public school setting, that there was some governmental funding of the publication, that teachers were acting as advisors, and that the state actors made an educational judgment to respect the autonomy of the students' editorial judgment.
The decision of the district court is affirmed.
TORRUELLA, Chief Judge (Concurring).
I concur with the majority opinion but write separately to highlight an important issue that the majority fails to address — the absence of a public forum.
The regulation of speech in forums that have traditionally been available for public expression is subject to the highest degree of scrutiny. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 954-55, 74 L.Ed.2d 794 (1983). These "traditional public forums" include streets, sidewalks and parks. Id. In order to further aid citizens' political discourse, the state may, from time to time, create a new public forum for the views of the community. The regulation of speech in these "designated" public forums is also subject to strict scrutiny. See id. at 46, 103 S.Ct. at 955-56. However, it is simply not true, as a matter of constitutional law, that each time a state actor solicits advertising, a designated public forum has been created by the government. See Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974) (city may solicit advertising for its rapid transit cars while refusing political and public issue advertising).
The Supreme Court has held that "[t]he government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse." Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 802, 105 S.Ct. 3439, 3449, 87 L.Ed.2d 567 (1985) (emphasis added); see also International Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 680, 112 S.Ct. 2701, 2706, 120 L.Ed.2d 541 (1992) (when the government opens a forum for certain types of speech, a public forum has not been created unless the government intended to create a forum without limitations); United States v. Kokinda, 497 U.S. 720, 730, 110 S.Ct. 3115, 3121-22, 111 L.Ed.2d 571 (1990) (plurality opinion) (same); Perry, 460 U.S. at 48, 103 S.Ct. at 956-57 (same). Therefore, when school newspapers and yearbooks publish advertising alongside student articles and pictures, it cannot be said that editors are necessarily intending to open a forum for all public discourse.
This Circuit has observed that "in determining whether the government qua proprietor has designated public property to be a public forum, courts should be highly deferential to the government's decisions to regulate speech" where those decisions do not evidence viewpoint discrimination. AIDS Action Committee of Mass. v. MBTA, 42 F.3d 1, 9 (1st Cir.1994). It follows that the mere absence of a prior written policy against political and public issue advertising should not preclude the Musket from adopting such a policy when the need to do so becomes apparent, so long as the paper has not established a practice of publishing such material. See Cornelius, 473 U.S. at 802, 105 S.Ct. at 3448-49 (government's intent regarding a forum for speech must be gleaned from policy and practice); Grace Bible Fellowship, Inc. v. Maine School Admin. Dist. No. 5, 941 F.2d 45, 47 (1st Cir.1991) (same). In this case, the Musket had not published political or public issue advertising in the past, and Yeo's request did not obligate the paper to begin publishing such material.
When the state solicits advertising for a nontraditional public forum, it is permitted to filter out pure political speech. See Lehman, 418 U.S. at 303-04, 94 S.Ct. at 2717-18. Disallowing this filter would shut down potentially robust activities, including many
STAHL, Circuit Judge, concurring in the judgment.
Though I remain persuaded that, on the facts of this case, the student editors were public actors acting under color of state law, further examination of the record during en banc review leads me to conclude that this issue is not material to our decision and that the district court properly entered judgment in favor of defendants. I write separately for two reasons. First, because this case is easily resolved on statutory grounds — lack of evidence from which a factfinder could conclude that the defendants "caused" the constitutional violation complained of — I believe the majority's central state action ruling to be an unfortunate breach of the "fundamental rule of judicial restraint ... that [courts] will not reach constitutional questions in advance of the necessity of deciding them." Three Affiliated Tribes v. Wold Engineering, P.C., 467 U.S. 138, 157, 104 S.Ct. 2267, 2278-79, 81 L.Ed.2d 113 (1984). Second, I believe the majority's unnecessary constitutional ruling to be wrong on the merits.
Defendants cannot be liable to plaintiff for damages unless, among other things, they subjected plaintiff to, or caused plaintiff to be subjected to, a deprivation of federal rights. See 42 U.S.C. § 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 of Social Servs., 436 U.S. 658, 691-94, 98 S.Ct. 2018, 2036-38, 56 L.Ed.2d 611 (1978) (interpreting the language of § 1983 to preclude the imposition of vicarious liability), the question here quickly reduces to whether one or more defendants can, at the least, be seen as having caused the rejection of the advertisements within the narrow meaning of the statute. See id.
As the majority notes, plaintiff has not named as defendants those persons — the student editors of the newspaper and year-book — who may most readily be seen as having directly subjected him to the alleged deprivation of his First Amendment and equal protection rights. Nor has plaintiff argued that the acts and omissions for which the named defendants may most readily be seen as responsible — delegating decision-making authority to the students and failing to override the students' decisions — caused him to be subjected to constitutional harm. See, e.g., Febus-Rodriguez v. Betancourt-Lebron, 14 F.3d 87, 91-92 & n. 4 (1st Cir. 1994) (discussing this circuit's standard for establishing supervisory liability under § 1983). As a result, no trial is warranted unless there is a genuine issue of material fact as to whether (1) at least one individual defendant actually colluded with the students in the decisions to reject the advertisements; or (2) the rejection was pursuant to a policy or custom of the Town of Lexington. See, e.g., Board of County Commissioners v. Brown, ___ U.S. ___, ___, 117 S.Ct. 1382, 1388, 137 L.Ed.2d 626 (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). In my view, there is insufficient evidence to warrant a trial against any of the named defendants under either of these theories.
Though I continue to disagree with the majority's conclusion that defendants Kafrissen and Mechem did not influence the students' decisions to reject the advertisements, I now concur that the summary judgment record permits only one inference: the students made the ultimate decisions. In the end, I am constrained to agree that, in the face of largely uncontradicted testimony to
With respect to the Town, I agree with the majority's conclusion that there is no basis for attributing to it the conduct of the students. See ante Part III, Sections A and C. I take issue, though, with the method by which the majority reaches its conclusion. Specifically, I disagree with its direct (though reverse) application to this case of those Supreme Court state action cases which look for state action in private conduct. See generally id. (applying, in order, Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953); Morse v. Republican Party of Virginia, 517 U.S. 186, 116 S.Ct. 1186, 134 L.Ed.2d 347 (1996); Burton v. Wilmington Parking Auth., 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974); Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982); and Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991), to determine that the defendants to this lawsuit, all of whom are public actors, are not liable for the students' conduct). While these cases might, by analogy, shed light on what will not be considered constitutionally tortious municipal conduct under § 1983, see, e.g., Rendell-Baker, 457 U.S. at 840-41, 102 S.Ct. at 2770-71 (strongly supporting an argument that neither municipal funding nor municipal regulation of a private entity constitutes municipal "policy" for purposes of § 1983), not one of them speaks to the question directly posed here: can conduct by non-legislative and non-policy making actors be deemed to have been sufficiently caused by municipal policy or custom for liability to attach to the Town? Nor does any one of these cases involve harm-causing conduct which can be seen as having been committed by public actors. For these reasons, I fear that the majority opinion confuses more than it clarifies.
Moreover, the majority has entered an area it could and should avoid. The Town's freedom from liability flows less from the fact (if it be fact, see infra Part II) that the students are private actors than from the fact that the students' actions were not caused by Town policy or custom. Again, plaintiff has not advanced as a theory of liability the Town's decision to let the students decide — the only municipal policy or custom which can arguably be seen at play here. And even if plaintiff had so argued, it seems obvious that, as an action taken in what appears to have been good faith reliance upon state law, see Mass. Gen. L. c. 71, § 82, this policy cannot give rise to municipal liability under § 1983. See Surplus Store & Exchange, Inc. v. City of Delphi, 928 F.2d 788, 791-92 (7th Cir.1991).
In the end, defendants are entitled to judgment because they did not, under § 1983, ultimately cause the conduct of the non-party students. We should not go beyond this simple fact to decide the case.
By resolving this dispute through application of those cases which look for state action in private conduct, the majority proceeds from the premise that the students were private actors. I not only find this implicit holding to be unnecessary, I believe it to be incorrect on the merits. In my view, had plaintiff sued the student editors directly, we would have been obliged to rule that they were, in fact, public actors insofar as they solicited and published advertisements from paying third parties.
Whether a person or entity is a private or a public actor obviously cannot be resolved through application of cases which presume that the actor is private; it is resolved by a fact-specific inquiry into whether the person or entity is, in context, acting "under color of
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, 1003-04, 102 S.Ct. 2777, 2785-86, 73 L.Ed.2d 534 (1982) (contrasting "those cases in which the defendant is a private party and the question is whether his conduct has sufficiently received the imprimatur of the State so at to make it `state' action for purposes of the Fourteenth Amendment" with "cases in which the challenged conduct consists of enforcement of state laws or regulations by state officials who are themselves parties in the lawsuit"). And the state action tests the majority relies upon, designed as they are to determine whether private conduct is attributable to the state, would not have helped answer the question.
To illustrate, when an on-duty municipal police officer misuses the power of the office to carry out a personal vendetta, we do not decide whether he was acting under color of state law by reference to whether the municipality is itself liable for the conduct. See, e.g., Martinez v. Colon, 54 F.3d 980 (1st Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 515, 133 L.Ed.2d 423 (1995). We decide it on a more contextually-appropriate inquiry into whether the officer has "exercised power `possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" Id. at 986 (quoting West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 2255, 101 L.Ed.2d 40 (1988)). So here should we decide whether the students are public or private actors by reference to criteria other than those we would use to decide whether the Town must pay for the students' acts.
What criteria should be used? A helpful starting point is Dodson, where the Court's ruling was informed by two primary considerations: (1) "a public defender is not amenable to administrative direction in the same sense as other employees of the State," 454 U.S. at 321, 102 S.Ct. at 451; and (2) "it is the constitutional obligation of the State to respect the professional independence of the public defenders whom it engages," id. at 321-22, 102 S.Ct. at 451. Here, both factors militate in favor of finding that, insofar as they solicited and published (or declined to publish) advertisements from paying third parties, the students acted under color of state law. Certainly, the power of school officials to regulate the content of student publications and the acts of their student editors, see Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266-70, 108 S.Ct. 562, 567-70, 98 L.Ed.2d 592 (1988), is near its apex where the subject of the regulation involves the students' commercial interactions with third parties. And where these interactions arguably implicate the constitutional rights of those third parties, cf. Dodson, 454 U.S. at 321-22, 102 S.Ct. at 451-52, and hold out the prospect of monetary benefit to the Town, see, e.g., Burton, 365 U.S. at 724, 81 S.Ct. at 861 (indicating that conduct which leads to monetary benefits for the State will often be deemed action on behalf of the State), the question is less whether the students may be regulated and more whether the students must be regulated.
My position is narrow. I have never doubted that the student writers are private actors with respect to reporting and editorializing. A contrary holding would, after all, effectively spell the end of public school student publications; one would be hard-pressed to report and could never editorialize without violating the First Amendment's mandate of viewpoint neutrality. See generally
At the very least, that the students are private actors is not such an open and shut matter that it should be assumed sub silentio. If the student editors of the Musket determined to run the paid political advertisements of Democratic candidates for Town office but not those of Republican candidates, and if the Republican candidates sought injunctive relief against the students in their capacities as editors of the Musket, would we summarily conclude that the challenged action was not undertaken under color of state law? I would like to think not. Though the facts of the present case are less egregious, the underlying question — not presented here because of plaintiff's pleading decisions — is the same.
For the reasons stated, I concur in the majority's conclusion that judgment was properly entered in favor of defendants. I do not, however, concur in the reasoning that leads it to this conclusion. I would instead resolve the case under well settled law that precludes a finding, under § 1983, against any of the defendants named in the complaint for the theories of recovery plaintiff has advanced.