Perkins v. Londonderry Basketball Club

• Decision Date: 15 September 1999
• Docket Number: No. 99-1385,99-1385
• Parties: (1st Cir. 1999) STACEY PERKINS, p.p.a. TERRI PERKINS, Plaintiff, Appellant, v. LONDONDERRY BASKETBALL CLUB, Defendant, Appellee. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 13

196 F.3d 13 (1st Cir. 1999)

STACEY PERKINS, p.p.a. TERRI PERKINS, Plaintiff, Appellant, v. LONDONDERRY BASKETBALL CLUB, Defendant, Appellee.

No. 99-1385

United States Court of Appeals for the First Circuit

Heard September 15, 1999

Decided November 8, 1999

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Linda S. Johnson, with whom Rachel A. Hampe, Ann Marie Dirsa, and McLane, Graf, Raulerson & Middleton, P.A. were on brief, for appellant.

Joseph L. Hamilton, with whom Hamilton Law Offices was on brief, for appellee.

Before Selya, Circuit Judge, Campbell, Senior Circuit Judge, and Boudin, Circuit Judge.

SELYA, Circuit Judge.

Plaintiff-appellant Stacey Perkins, suing by and through her mother and next friend, Terri Perkins, alleges that defendant-appellee Londonderry Basketball Club (LBC) violated the Fourteenth Amendment when it refused to allow her to play in a youth basketball tournament because of her gender. The United States District Court for the District of New Hampshire, discerning no state action, resolved the constitutional claim adversely to the appellant (albeit without reaching the merits) and declined to exercise supplemental jurisdiction over the appellant's pendent state-law claims. We affirm.

I. BACKGROUND

We marshal the facts in the light most hospitable to the appellant's theory of the case, drawing all reasonable inferences in her favor. See Coyne v. Taber Partners I, 53 F.3d 454, 456 (1st Cir. 1995).

Stacey Perkins is a ten-year-old female with an affinity for the sport of basketball. She resides in Seabrook, New Hampshire, a community which has no competitive "all-girls" basketball league for Stacey's age group. At the start of the 1997-1998 season, Stacey seized the only realistic opportunity for a girl of her age to compete and joined the "Red Devils," a mixed-gender team that plays in the Seabrook Recreational League (SRL). In March 1998, Stacey was one of two girls selected to play on the SRL's twelve-member All-Star team.

The scene now shifts from Seabrook to Londonderry, New Hampshire (the Town), where basketball has proven to be a popular pastime. In the 1980s, Arthur Psaledas, the Town's Recreation Director, ran a youth basketball program on his own time. As demand increased, however, Psaledas could not keep pace, and several community groups banded together in 1990 to form LBC (a voluntary, nonprofit organization that enjoys tax-exempt status under 26 U.S.C. § 501(c)(3)). In furtherance of its mission to provide basketball opportunities for the Town's young people, LBC manages single-sex boys' and girls' teams for third- through eighth-graders. To cap the season, it sponsors a one-week annual tournament (really two tournaments, because LBC splits it into separate brackets for boys and girls).

LBC solicits donations to support its activities. The annual tournament constitutes its most substantial fundraising event: registration fees, ticket sales, and souvenir sales (e.g., T-shirts) all generate revenues. LBC and the Town's Recreation Commission have a modest interlock -- two members of LBC's five-member board of directors happen to serve as members of the Recreation Commission -- and Commission members often assist as volunteers at the tournament by keeping score, running the clock, and the like.

LBC uses the Town's public school gymnasia for league and tournament play. Gym time is allocated by Psaledas, who holds a yearly meeting for that purpose with user representatives and Town officials. Like other groups that use the Town's facilities, LBC pays a mandatory security fee to a private service but pays no rent.

Beginning in 1996, the Town adopted sanctioning requirements in an effort to prioritize requests for extra-curricular use of school gyms. We reprint the sanctioning requirements in an appendix. Uncontroverted evidence makes clear that the Town's goal in adopting these requirements was to bring competing groups together and thus lessen the burden on municipal facilities. LBC sought and gained the Town's imprimatur under the sanctioning requirements.

As part of an allocation process, each group that aspires to gym use is required to submit a request for dates to the Town's School District. Because Psaledas has been handling these submissions for many years, he knows the needs of the basketball, soccer, volleyball, and other leagues and automatically furnishes information to the School District on behalf of LBC and other similarly situated private groups. Although non-sanctioned groups may use the gyms, sanctioned groups receive priority. Moreover, Psaledas occasionally has moved adult groups to different time slots to accommodate LBC's tournament-related needs.

There are other points of contact between LBC and the Town: LBC holds meetings in school buildings, distributes flyers regarding tryout schedules through the schools, and relies on Psaledas to inform it when the School District cancels its programs. The most salient contact point is financial: LBC from time to time contributes money to the Town's schools for scholarships, travel, uniforms, basketball equipment, court maintenance, and the like. Between 1991 and 1998, these donations amounted to $22,000. In the event LBC were to dissolve, its charter provides that all its assets would be distributed to the Town.

II. THE DENOUEMENT

The SRL arranged for its All-Star team to play in LBC's tenth annual "boys'" tournament. The schedule called for the team to play its first game on March 24, 1998. But LBC opted to apply its policy of "separate and equal" brackets, which contained no provision for mixed-gender play, even where, as in this case, a child's community offered no single-sex team on which she could compete. In accordance with the policy (which LBC defends as an attempt to maximize the participation of both sexes), LBC informed Stacey's coach that girls would not be allowed to participate in its boys' tournament.

Three days later, Stacey sued LBC. She alleged equal protection violations under the Fourteenth Amendment and 42 U.S.C. § 1983 as well as a number of claims under state law. Her complaint sought variegated relief, including an order enjoining LBC from denying her the opportunity to play in the tournament and an award of money damages. Any prospect of a temporary restraining order evaporated when the SRL All-Star team withdrew from the tournament. Stacey's suit nevertheless proceeded, principally on her claim for damages.

Following a plenitude of pretrial discovery, LBC moved for summary judgment. In a meticulously reasoned unpublished opinion, the district court granted the motion as to the Fourteenth Amendment and section 1983 claims, holding that LBC's conduct did not constitute state action.¹ The court simultaneously dismissed the supplemental state-law claims without prejudice. See 28 U.S.C. § 1367(c). This appeal, in which we review the lower court's grant of summary judgment de novo, see Coyne, 53 F.3d at 457, followed.

III. ANALYSIS

Despite criticism from the academy,² the public/private dichotomy remains embedded in our constitutional jurisprudence. See National Collegiate Athletic Ass'n v. Tarkanian, 488 U.S. 179, 191 (1988). This dichotomy distinguishes between state action, which must conform to the prescriptions of the Fourteenth Amendment, and private conduct, which generally enjoys immunity from Fourteenth Amendment strictures.³ See id.; Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349 (1974). The line of demarcation between public and private action, though easily proclaimed, has proven elusive in application. And the Justices, mindful of the fact-sensitive nature of the inquiry, have staunchly eschewed any attempt to construct a universally applicable litmus test to distinguish state action from private conduct. Instead, they have directed lower courts to take a case-by-case approach, "sifting facts and weighing circumstances [so that] the nonobvious involvement of the State in private conduct [can] be attributed its true significance." Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961).

There is no direct "state action" here: the parties, who agree on little else, concur that LBC is not structurally an arm of municipal government. In cases that involve indirect state action, courts conventionally have traveled a trio of analytic avenues, deeming a private entity to have become a state actor if (1) it assumes a traditional public function when it undertakes to perform the challenged conduct, or (2) an elaborate financial or regulatory nexus ties the challenged conduct to the State, or (3) a symbiotic relationship exists between the private entity and the State. See Barrios-Velazquez v. Asociacion de Empleados, 84 F.3d 487, 493 (1st Cir. 1996); Rodrguez-Garca v. Davila, 904 F.2d 90, 96 (1st Cir. 1990). A common thread binds these pathways. Each of them, from a slightly different coign of vantage, aims at the same destination: whether "private actors [have] aligned themselves so closely with either state action or state actors that the undertow pulls them inexorably into the grasp" of the Fourteenth Amendment. Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 253-54 (1st Cir. 1996). The appellant hypothesizes that each and all of these avenues lead to the conclusion that LBC's conduct meets the requirements of the state action doctrine. We explore the validity of that hypothesis.

A. Traditional Public Function.

Pointing out that LBC took over the task of operating the youth basketball program from the Town's Recreation Director, the appellant contends that LBC assumed a traditional public function. On the facts, this contention lacks force. The record establishes beyond peradventure that Psaledas never ran a youth basketball program in his capacity as Recreation Director. Indeed, private sponsorship of youth basketball existed in Londonderry well before LBC's formation.

More importantly, however, the appellant's...