296 F.3d 22 (1st Cir. 2002), 01-2721, Logiodice v. Trustees of Maine Cent. Institute

Docket Nº:01-2721.
Citation:296 F.3d 22
Party Name:Zachariah LOGIODICE, Plaintiff, Appellant, v. TRUSTEES OF MAINE CENTRAL INSTITUTE, Douglas C. Cummings, John Marquis, Terrance C. McCannell and Maine School Administrative District No. 53, Defendants, Appellees.
Case Date:July 18, 2002
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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296 F.3d 22 (1st Cir. 2002)

Zachariah LOGIODICE, Plaintiff, Appellant,


TRUSTEES OF MAINE CENTRAL INSTITUTE, Douglas C. Cummings, John Marquis, Terrance C. McCannell and Maine School Administrative District No. 53, Defendants, Appellees.

No. 01-2721.

United States Court of Appeals, First Circuit

July 18, 2002

Heard April 3, 2002.

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[Copyrighted Material Omitted]

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Richard L. O'Meara with whom Barbara T. Schneider and Murray, Plumb & Murray were on brief for appellant.

Peter T. Marchesi with whom Wheeler & Arey, P.A. were on brief for appellees Terrance C. McCannell and Maine School Administrative District No. 53.

Bruce C. Mallonee with whom Luke M. Rossignol and Rudman & Winchell, LLC were on brief for appellees Maine Central Institute, Douglas C. Cummings, and John Marquis.

Before BOUDIN, Chief Judge, LYNCH and LIPEZ, Circuit Judges.

BOUDIN, Chief Judge.

Maine School Administrative District No. 53—the local government agency responsible for schooling children in the Maine communities of Pittsfield, Burnham, and Detroit—does not operate its own public high school. Instead it underwrites secondary education for students through a contract with Maine Central Institute ("MCI"), a privately operated high school in the district. See 20-A M.R.S.A. § 2701 (West 1993 & Supp.2001). The contract-originally for a ten-year term starting in 1983 and later extended through separate agreements for two more ten-year periods

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(starting in 1993 and 2003)—provides that MCI will accept and educate all of the school district's students in the ninth through twelfth grades in exchange for specified tuition payments by the school district.

Zachariah Logiodice was an eleventh grade student at MCI during the 1999-2000 school year. On January 19, 2000, he cursed at a teacher, Mr. Harper, who had confiscated his soda just prior to a midterm English exam. Harper immediately reported the incident to MCI's dean of students, John Marquis, who told Zach he would be suspended if he did not leave the gym where the exam was being held. According to Marquis, Zach then approached Marquis and cursed defiantly at him; Zach denies this and says he simply asked Marquis for his soda back. In any event, Zach does not dispute that he refused to leave the classroom.

After the exam, Marquis called Zach's mother and asked her to pick Zach up from school. When she arrived, Marquis described the incident and informed her that Zach would be suspended for ten school days; he also told her that both he and Harper had felt threatened by Zach's behavior. Marquis met with both Zach's parents later that afternoon and at that point suggested that Zach see a counselor. Two days afterward, Marquis sent a letter to Zach's parents confirming the ten-day suspension and also indicating for the first time that Zach would not be allowed to return to school even after ten days unless he obtained counseling and a "safety evaluation" from a licensed psychologist.

Nine school days later, on February 1, 2000, Zach's parents were still unable to get the required "safety evaluation" for Zach. The psychologist they contacted did not have an appointment available until February 7 and further told them that no psychologist would be willing to give such an evaluation. At this point, Zach's parents called MCI's headmaster, Douglas Cummings, requesting that Zach be allowed to return to school without the evaluation and arguing that a suspension of greater than ten days would violate state law, see 20-A M.R.S.A. § 1001(9). Cummings refused the request, saying that the law did not apply to private schools including MCI.

Zach's parents then asked the superintendent of the school district, Terrance McCannell, to intercede on their behalf. McCannell wrote a letter to Cummings expressing concern that any suspension beyond ten days would violate Zach's rights; he also suggested that it would violate MCI's contract with the school district. On February 7, 2000, Cummings met with McCannell and Zach's parents and agreed that Zach could return to school if the psychologist met with Zach a few more times and assured school officials that he would not pose a threat at school. Zach was finally allowed to return to school on February 15, 2000—seventeen school days after the initial incident.

On November 29, 2000, Zach's parents filed on Zach's behalf a section 1983 suit in federal court in Maine against MCI, the school district, and the individuals involved. 42 U.S.C. § 1983 (1994 & Supp. V 1999). The complaint alleged that MCI, Cummings, and Marquis (collectively, "MCI") had violated procedural due process requirements by suspending Zach without giving him an opportunity for a healing, see Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), and that the school district and McCannell (collectively, "the school district") had improperly delegated to MCI power to discipline publicly funded students without adequately assuring that MCI followed federal due process safeguards.

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The district court initially denied defendants' motion to dismiss for failure to state a claim, Logiodice v. Trustees of Me. Cent. Inst., 135 F.Supp.2d 199 (D.Me.2001), but after receiving the parties' factual submissions granted summary judgment to both sets of defendants, Logiodice v. Trustees of Me. Cent. Inst., 170 F.Supp.2d 16 (D.Me. 2001). The district court also dismissed plaintiffs parallel claims brought under the state due process clause. Id. at 34. Plaintiff now appeals to this court.

We start with the claims against MCI. The district court did not reach the merits of plaintiffs procedural due process claim because it found at the threshold that MCI was not acting "under color of state law." 42 U.S.C. § 1983. In most contexts, section 1983's "under color of state law" requisite is construed in harmony with the state action requirement of the Fourteenth Amendment. Lugar v. Edmondson Oil Co., 457 U.S. 922, 931-35, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). Broadly speaking, the Fourteenth Amendment protects individuals only against government (leaving private conduct to regulation by statutes and common law). E.g., The Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883).

Yet under several doctrines, acts by a nominally private entity may comprise state action—e.g., if, with respect to the activity at issue, the private entity is engaged in a traditionally exclusive public function; is "entwined" with the government; is subject to governmental coercion or encouragement; or is willingly engaged in joint action with the government. Brentwood Acad. v. Tenn. Secondary Sch., Athletic Ass'n, 531 U.S. 288, 295-96, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001). The doctrines are too generally phrased to be self-executing: the cases are sensitive to fact situations and lack neat consistency. See id.

Nevertheless, existing doctrine provides the starting point and framework for analysis. Plaintiffs first claim on appeal is that MCI is a state actor because (in plaintiffs words) "it was performing the traditional public function of providing public educational services" to the school district's high school students. Under the "public function" doctrine, the Supreme Court has identified certain functions which it regards as the sole province of government, and it has treated ostensibly private parties performing such functions as state actors. The classic cases are the conduct of elections, e.g., Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953), and the governance of a "company" town, Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946).

So far as the public function test is based on historical practice (as opposed to a normative judgment), see, e.g., Sail Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 545, 107 S.Ct. 2971, 97 L.Ed.2d 427 (1987), plaintiff cannot meet it. This is because under Supreme Court precedent, it is not enough that the function be one sometimes performed by government—an approach that would exclude little, given the diversity of activities performed by modern governments. Rather, where the party complained of is otherwise private, the function must be one "'exclusively reserved to the State." Flagg Bros. v. Brooks, 436 U.S. 149, 158, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978) (emphasis added).

Obviously, education is not and never has been a function reserved to the state. See, e.g., Pierce v. Soc'y of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). In Maine, as elsewhere, schooling, including high school education, is regularly and widely performed by private entities; this has been so from the outset of

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this country's history. See Chadbourne, A History of Education in Maine 111 (1936); Bowen, The History of Secondary Education in Somerset County in Maine 16-22 (1935). MCI itself was founded in 1866. Chadbourne, supra, at 283. Accordingly, the Supreme Court, in Rendell-Baker v. Kohn, 457 U.S. 830, 840-43, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982), aff'g 641 F.2d 14 (1st Cir. 1981), and lower courts, including this one, see Robert S. v. Stetson Sch., Inc., 256 F.3d 159, 165-66 (3d Cir. 2001); Johnson v. Pinkerton Acad., 861 F.2d 335, 338 (1st Cir. 1988), have declined to describe private schools as performing an exclusive public function. See also Jackson v. Metro. Edison Co., 419 U.S. 345, 354 n. 9, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974).

Admittedly, both Rendell-Baker and Johnson involved claims to due process protection made by teachers and not students; our own decisions in both cases held out the possibility that students might have a better claim. Johnson, 861 £\2d at 338; Rendell-Baker, 641 F.2d at 26. Whether state actor status should depend on who is suing is debatable, see, e.g., Sherlock v....

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