Mentavlos v. Anderson

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JEANIE MENTAVLOS, 

Plaintiff-Appellant,

v.

JOHN JUSTICE ANDERSON; JAMES

SALEEBY,

Defendants-Appellees,

THE CITADEL, The Military College

of South Carolina,

Defendant-Amicus Curiae,

and  No. 00-1331

THE BOARD OF VISITORS OF THE

CITADEL, The Military College of

South Carolina; RICHARD ELLIS,

Captain; NICHOLAS BELCHER; ERIC

AMHAUS; EDWARD BOHM,

Defendants,

and

UNITED STATES OF AMERICA,

Intervenor-Plaintiff.



Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Joseph F. Anderson, Jr., Chief District Judge.

(CA-97-2718-3-17)

Argued: January 25, 2001

Decided: May 7, 2001

Before WILLIAMS and TRAXLER, Circuit Judges, and

Raymond A. JACKSON, United States District Judge for the

Eastern District of Virginia, sitting by designation.

2 MENTAVLOS v. ANDERSON

Affirmed by published opinion. Judge Traxler wrote the opinion, in

which Judge Williams and Judge Jackson joined.

COUNSEL

ARGUED: Leon Friedman, New York, New York, for Appellant.

Sandra Jane Senn, SANDRA J. SENN, P.A., Charleston, South Caro-

lina, for Appellees. Wendy Raina Johnson Keefer, BARNWELL,

WHALEY, PATTERSON & HELMS, L.L.C., Charleston, South Car-

olina, for Amicus Curiae. ON BRIEF: Richard A. Harpootlian, Rob-

ert G. Rikard, RICHARD A. HARPOOTLIAN, P.A., Columbia,

South Carolina, for Appellant. Stephanie P. McDonald, SANDRA J.

SENN, P.A., Charleston, South Carolina, for Appellees. M. Dawes

Cooke, Jr., BARNWELL, WHALEY, PATTERSON & HELMS,

L.L.C., Charleston, South Carolina, for Amicus Curiae.

OPINION

TRAXLER, Circuit Judge:

Today we consider the novel question of whether two male cadets

at The Citadel, a state-supported and formerly all-male military col-

lege located in Charleston, South Carolina, acted "under color of"

state law, within the meaning of 42 U.S.C.A. § 1983 (West Supp.

2000), when they allegedly engaged in gender-based harassment and

discrimination designed to force a female cadet to withdraw from the

college. We hold that they did not, and accordingly affirm the district

court’s grant of summary judgment to the male cadets.

I.

The Citadel, The Military College of South Carolina, is a state-

supported, four-year comprehensive college, established by the State

of South Carolina in 1842. For over 150 years, The Citadel only

admitted men to its full-time, residential student body known as the

South Carolina Corps of Cadets. However, in the waning days of an

extended legal battle over the constitutionality of the single-gender

MENTAVLOS v. ANDERSON 3

admissions policy of the Corps of Cadets, see Faulkner v. Jones, 10

F.3d 226 (4th Cir. 1993) (discussing Shannon Faulkner’s challenge to

The Citadel’s revocation of her admission to the Corps of Cadets

based on her gender), and in the wake of the Supreme Court’s deci-

sion in United States v. Virginia, 518 U.S. 515 (1996) (holding that

a similar, unconstitutional male-only admissions policy at Virginia

Military Institute could not be remedied with a parallel women’s pro-

gram at a women’s college), The Citadel was forced to abandon its

male-only policy and began voluntarily admitting women to its Corps

of Cadets in the fall of 1996. See United States v. Jones, 136 F.3d

342, 345 (4th Cir. 1998).1

Appellant Jeannie Mentavlos was one of four women admitted to

The Citadel that fall. Upon her arrival, she was assigned to Echo

Company, an administrative unit of the Corps of Cadets. However,

she withdrew from the college in December 1996. Mentavlos con-

tends that during those four months the commanding administrative

officer and several upperclass cadets assigned to Echo Company suc-

cessfully conspired to perpetuate the former all-male Corps of Cadets

by driving her from the school. Mentavlos further asserts that, to

accomplish this result, the men subjected her to "sexual harassment,

intimidation, and abuse" in the form of "insults, indignities, physical

assaults and humiliating treatment, which went far beyond any need

to toughen, strengthen or acclimate [her] to the rigors of military dis-

cipline." J.A. 25-26.

The following year, Mentavlos instituted this action against The

Citadel and its governing Board of Visitors; Captain Richard Ellis, the

army officer assigned to act as the commanding administrative officer

of Echo Company; and five upperclass cadets assigned to Echo Com-

pany, including Appellees John Justice Anderson and James Saleeby.

Among other claims, Mentavlos alleged that the actions of Ellis and

the individual cadets deprived her of her constitutional right to equal

protection in violation of 42 U.S.C.A. § 1983 and 42 U.S.C.A. § 1985

(West 1994), and that The Citadel and The Board of Visitors violated

1

Faulkner, the first female admitted to The Citadel Corps of Cadets,

joined the Corps on August 12, 1995, by virtue of court order, but with-

drew because of illness on August 18, 1995. See United States v. Jones,

136 F.3d 342, 345 (4th Cir. 1998).

4 MENTAVLOS v. ANDERSON

Title IX of the Educational Amendments of 1972, see 20 U.S.C.A.

§ 1681 (West 2000), by failing to adequately respond to the known,

gender-based harassment which ultimately forced her to withdraw

from the school.

With the exception of one cadet who was in default, all defendants

moved for summary judgment and all but Cadets Anderson and

Saleeby settled the claims against them. Although Mentavlos had

originally alleged only that the upperclass cadets acted in concert with

Captain Ellis, a state actor for purposes of § 1983, to abuse and harass

her because of her gender, she was subsequently allowed to amend

her complaint to allege that the individual cadets were also state

actors and elected to proceed solely on her § 1983 claim against them.

Anderson and Saleeby then moved for summary judgment on the

additional ground that they did not act "under color of" state law for

purposes of § 1983.

After conducting a fact-finding hearing on the state-actor issue

with the consent of the parties, the district court granted summary

judgment to Anderson and Saleeby on the grounds that they did not

act under color of state law and, therefore, could not be held liable

under § 1983 for the alleged violations of Mentavlos’ constitutional

rights. With regard to Saleeby, the district court granted summary

judgment on the alternative ground that Mentavlos failed to prove that

his actions were discriminatory in nature. See Mentavlos v. Anderson,

85 F. Supp. 2d 609, 628 (D.S.C. 2000). The district court then certi-

fied the case as one appropriate for immediate appeal under 28

U.S.C.A. § 1292(b) (West 1993).2 We consented to hear the appeal.

II.

A.

We review de novo the district court’s grant of summary judgment

to Appellees Anderson and Saleeby. See Goldstein v. Chestnut Ridge

Volunteer Fire Co., 218 F.3d 337, 340 (4th Cir. 2000), cert. denied,

121 S. Ct. 882, 121 S. Ct. 1096 (2001). Like the district court, we

2

Because one cadet had defaulted, a damages hearing was still pending

against him.

MENTAVLOS v. ANDERSON 5

review the disputed evidence concerning Appellees’ alleged gender-

based harassment of Mentavlos in the light most favorable to her. See

Mentavlos, 85 F. Supp. 2d at 612; Goldstein, 218 F.3d at 341. How-

ever, the district court’s factual findings regarding the state-actor

issue, made with consent of the parties, are reviewed for clear error.

See Fed. R. Civ. P. 52(a); Front Royal & Warren County Indus. Park

Corp. v. Town of Front Royal, Va., 135 F.3d 275, 284 (4th Cir. 1998).

"A finding is clearly erroneous when, although there is evidence to

support it, on the entire evidence the reviewing court is left with the

definite and firm conviction that a mistake has been committed."

Faulconer v. Commissioner, 748 F.2d 890, 895 (4th Cir. 1984).

B.

The facts of this case are exhaustively laid out in the district court’s

opinion. See Mentavlos, 85 F. Supp. 2d at 610-20. As a military col-

lege, The Citadel offers a unique educational experience to its stu-

dents. Members of the Corps of Cadets are subjected to military style

rules and living conditions, and Citadel freshmen in particular are

subjected to a strict set of disciplinary and behavioral rules known as

the "Fourth Class System." Under this system, described at length in

the Cadet Regulations (the "Blue Book"), faculty and active duty mil-

itary personnel assigned to the school mentor and supervise upper-

class cadets, who in turn mentor and supervise those cadets below

them. The Citadel expects from its cadets "strict and unquestioning

obedience, mental and physical toughness, and mature tolerance of

confrontation" and offers "an intense, high-stress experience designed

to facilitate development of ‘The Whole Man.’" Supp. J.A. 413. For

example:

Freshmen must come to attention whenever an upperclass-

man enters their barracks or speaks to them. Freshmen are

allowed only very limited, formal responses to upperclass-

men: "yes Sir;" "no Sir;" "no excuse, Sir;" and "request per-

mission to make a statement, Sir." When outside their own

room or classroom, they are generally required to move

briskly (walk at 120 steps per minute) or to stand at atten-

tion. Freshmen are prohibited from using a number of com-

mon areas. The freshmen are required to spend time in drill

and in performing company details such as cleaning the

6 MENTAVLOS v. ANDERSON

common areas of the barracks. They are required to follow

detailed and restrictive procedures at meals and to memorize

and recite certain factual information at meals and other

times.

Mentavlos, 85 F. Supp. 2d at 617 (internal citations omitted). Day-to-

day functioning of the fourth class system is dependent upon the cadet

chain of command. Specifically,

[t]raining, counseling, and inspecting fourth classmen is

restricted to the chain of command. Correcting and reporting

fourth classmen is the responsibility of all cadets and offi-

cers associated with The Citadel who may observe an

infraction on the part of a fourth classman.

Supp. J.A. 415.

Thus, under the fourth class system, upperclass cadets are given

limited authority to correct and report violations or infractions of The

Citadel’s rules by fourth classmen (freshmen), with day-to-day func-

tioning overseen by the Cadet Regimental Commander, a cadet

senior. However, active duty military officers assigned to the school

as faculty teach, advise, and mentor cadet leaders in the implementa-

tion of the fourth class system and the ultimate responsibility for

enforcement of the fourth class system rests with The Citadel Com-

mandant, not with upperclass cadets. Formal discipline is initiated

through performance reports, which "may be submitted by an officer

of The Citadel Faculty or Staff, cadet rank holders, members of the

Cadet Guard, and by any cadet on himself, when directed by proper

authority." Supp. J.A. at 395. The cadet company commander may

note the punishment for "Class III" offenses which have assigned pen-

alties, and may recommend a punishment for certain other "Class II"

offenses.3 But, with the exception of the most minor Class III infrac-

tions, the ultimate responsibility for administering the disciplinary

3

By way of example, Class III offenses include absence from class,

required formation, guard mount, tours confinements, restrictions, or all-

in. Class II offenses include absence from guard post or a required event

(such as a parade, athletic event, drill, or mandatory meal).

MENTAVLOS v. ANDERSON 7

system and imposing punishment rests with the Commandant or

Assistant Commandant.

In contrast to this limited authority granted to upperclass cadets to

correct minor infractions of school rules, the Blue Book expressly

prohibits discrimination on the basis of gender or other impermissible

criteria, including sexual harassment, and provides a specific proce-

dure for reporting such complaints to The Citadel faculty. Any action

that might be deemed hazing or abusive treatment of a freshman,

regardless of whether it is gender-motivated, is also strictly prohib-

ited. "Hazing is defined as striking, offering bodily harm, treating

with violence, verbal abuse or any treatment of a tyrannical, abusive,

or humiliating nature by a member of a higher class to a member of

a lower class" and "includes requiring performance of personal ser-

vice or humiliating verbal abuse." Supp. J.A. 414. Upperclass cadets

are also expressly prohibited from "touch[ing] a fourth class cadet

(male or female) without first asking permission and stating the spe-

cific area(s) that will be touched." Supp. J.A. 414. Even then, touch-

ing is allowed to occur only in an open area in full view of at least

one other cadet and "only for the purpose of providing instruction or

correcting a uniform or posture discrepancy." Supp. J.A. 414.

Anderson and Saleeby were upperclass cadets, juniors holding the

rank of sergeant, assigned to Echo Company with Mentavlos in the

fall of 1996. Viewing the evidence in the light most favorable to Men-

tavlos, the district court found that Mentavlos had produced evidence

which, if believed, would show that Anderson and Saleeby were each

involved in three alleged incidents of improper treatment of her dur-

ing that fall. With regard to Saleeby, the district court found sufficient

evidence to show that Saleeby (1) kicked Mentavlos in the legs on

one or more occasions, but caused no bruising, and commented that

Mentavlos "‘likes to be kicked’"; (2) came into Mentavlos’ room

wearing only non-uniform gym shorts and shower-type shoes on one

occasion, although Mentavlos did not interpret the visit as being sex-

ual in nature; and (3) directed another cadet to set Mentavlos’

sweatshirt on fire while she was wearing it on one occasion, and then

used his foot to put it out before it burned her skin. Mentavlos, 85 F.

Supp. 2d at 612-13. With regard to Anderson, the district court found

sufficient evidence to show that Anderson (1) pushed cardboard into

Mentavlos’ face while ranting and raving at her because she smiled

8 MENTAVLOS v. ANDERSON

while standing at attention, which left welts under her chin that lasted

for one or two days; (2) may have treated Mentavlos differently from

two male cadets when Mentavlos and another female cadet were

caught drinking alcoholic beverages just before the Thanksgiving

break; and (3) threatened Mentavlos at various times, stating that he

would physically harm or kill her or her brother, who was an upper-

class cadet at The Citadel. See id. at 613.

The district court found that upperclass cadets Anderson and

Saleeby "had at least some measure of authority over [Mentavlos] by

virtue of the system created and sanctioned by The Citadel, a state

institution." Id. at 619. And, the district court found that it was not

uncommon in this military-type environment for mild harassment to

take place, "either verbally or by requiring the freshmen to engage in

an activity not of the freshman’s choosing (e.g., spending long peri-

ods of time polishing a given item)." Id. at 617. However, the district

court also found that the school recognized the risks and history of

abuse of the fourth class system, had made efforts to manage those

risks, and clearly "did not endorse or encourage abuses of the fourth

class system." Id. at 619. On the contrary, the district court noted that

The Citadel had, "in fact, endeavored to discourage abuses of the type

alleged by" Mentavlos. Id.

Each of the alleged incidents involving Anderson and Saleeby

would constitute a violation of the written policy of The Citadel. On

this point, there appears to be no serious disagreement. Indeed, Men-

tavlos reported the cardboard and "boxer shorts" incidents when they

occurred, resulting in Anderson being disciplined and all cadets,

including Saleeby, being reminded of the rules of proper attire. Men-

tavlos did not voice any other complaints until just before withdraw-

ing from The Citadel in December, in part due to a reasonable

concern that the male cadets might retaliate against her with more

harassment. Once reported, however, The Citadel administration con-

ducted thorough investigations and imposed substantial punishments.

Anderson and Saleeby, as well as other cadets, were effectively

placed on house arrest during the investigations; Saleeby faced a com-

mandant’s board and was suspended from school for one year; and

Anderson, rather than face a commandant’s board, resigned from The

Citadel, thereby precluding his return to the school. Consequently, the

district court found that Anderson and Saleeby’s abuses "were pun-

MENTAVLOS v. ANDERSON 9

ished or adequately addressed when brought to the school’s attention"

and that "the discipline imposed and responses given were within a

reasonable range of discretion to preclude any inference that the

school endorsed or condoned the alleged behaviors." Id.

III.

Section 1983 provides that "[e]very person who, under color of any

statute, ordinance, regulation, custom, or usage, of any State . . . sub-

jects, or causes to be subjected, any citizen of the United States or any

person within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall

be liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress." 42 U.S.C.A. § 1983. In order to

establish a claim under § 1983, Mentavlos must prove two elements:

(1) that Anderson and Saleeby "deprived [her] of a right secured by

the Constitution and laws of the United States;" and (2) that they "de-

prived [her] of this constitutional right under color of [State] statute,

ordinance, regulation, custom, or usage." Adickes v. S.H. Kress & Co.,

398 U.S. 144, 150 (1970) (internal quotation marks omitted).

"Like the state-action requirement of the Fourteenth Amendment,

the under-color-of-state-law element of § 1983 excludes from its

reach "‘merely private conduct, no matter how discriminatory or

wrongful.’" American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50

(1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1002 (1982)); see

Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982) (holding that

§ 1983’s requirement that a defendant act under "color of law" is

treated as the equivalent to the "state action" requirement under the

Fourteenth Amendment); Haavistola v. Community Fire Co., 6 F.3d

211, 215 (4th Cir. 1993) (same).

The state action requirement "reflects judicial recognition of

the fact that ‘most rights secured by the Constitution are

protected only against infringement by governments.’"

Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982)

(quoting Flagg Bros. Inc. v. Brooks, 436 U.S. 149, 156

(1978)). "This fundamental limitation on the scope of con-

stitutional guarantees ‘preserves an area of individual free-

dom by limiting the reach of federal law’ and ‘avoids

10 MENTAVLOS v. ANDERSON

imposing on the State, its agencies or officials, responsibil-

ity for conduct for which they cannot fairly be blamed.’"

Edmondson v. Leesville Concrete Co., 500 U.S. 614, 619

(1991) (quoting Lugar, 457 U.S. at 936-37).

Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d

653, 658 (4th Cir. 1998).

Nevertheless, "the deed of an ostensibly private organization or

individual" may at times demand to be treated "as if a State has

caused it to be performed." Brentwood Academy v. Tennessee Second-

ary Sch. Athletic Ass’n, 121 S. Ct. 924, 930 (2001). Specifically,

"state action may be found if, though only if, there is such a ‘close

nexus between the State and the challenged action’ that seemingly

private behavior ‘may be fairly treated as that of the State itself.’" Id.

(quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351

(1974)); American Mfrs., 526 U.S. at 50 (when applying § 1983 to a

private actor, "‘the party charged with the deprivation must be a per-

son who may fairly be said to be a state actor.’" (quoting Lugar v.

Edmondson Oil Co., 457 U.S. 922, 937 (1982)).

A determination of "whether [a private party’s] allegedly unconsti-

tutional conduct is fairly attributable to the State," American Mfrs.,

526 U.S. at 50, requires us to "begin[ ] by identifying ‘the specific

conduct of which the plaintiff complains,’" id. at 51 (quoting Blum,

457 U.S. at 1004). The inquiry is "necessarily fact-bound." Lugar,

457 U.S. at 939.

What is fairly attributable is a matter of normative judg-

ment, and the criteria lack rigid simplicity. From the range

of circumstances that could point toward the State behind an

individual face, no one fact can function as a necessary con-

dition across the board for finding state action; nor is any set

of circumstances absolutely sufficient, for there may be

some countervailing reason against attributing activity to the

government.

Brentwood, 121 S. Ct. at 930; see also Burton v. Wilmington Parking

Auth., 365 U.S. 715, 722 (1961) (noting that it is an "‘impossible

task’" to "fashion and apply a precise formula for recognition of state

MENTAVLOS v. ANDERSON 11

responsibility under the Equal Protection Clause"); Arlosoroff v.

NCAA, 746 F.2d 1019, 1021 (4th Cir. 1984) (recognizing that "[t]here

is no precise formula to determine whether otherwise private conduct

constitutes ‘state action.’").

Nevertheless, several factors or circumstances bearing upon the

issue of whether private conduct "can fairly be attributed to the State"

for purposes of § 1983 liability have been clearly delineated by prece-

dent. Blum, 457 U.S. at 1004. Of particular relevance here, the

Supreme Court has held that challenged activity may be found to be

state action where "the State ‘has exercised coercive power or has

provided such significant encouragement, either overt or covert, that

the choice must in law be deemed to be that of the State.’" American

Mfrs., 526 U.S. at 52 (quoting Blum, 457 U.S. at 1004); see also

Brentwood, 121 S. Ct. at 930. And, "the required nexus may be pres-

ent if the private entity has exercised powers that are ‘traditionally the

exclusive prerogative of the State.’" Blum, 457 U.S. at 1005 (quoting

Jackson, 419 U.S. at 353); see also American Mfrs., 526 U.S. at 55;

Brentwood, 121 S. Ct. at 930 ("We have treated a nominally private

entity as a state actor . . . when it has been delegated a public function

by the State." (citing West v. Atkins, 487 U.S. 42, 56 (1988)); Edmon-

son v. Leesville Concrete Co., 500 U.S. 614, 627-28 (1991)); Gold-

stein, 218 F.3d at 348 (holding "that when it has been established that

the State has empowered, or is permitting, a private actor to home-

stead on territory that has heretofore been the exclusive, traditional

province of the State, there need be no specific demonstration of a

nexus to the alleged constitutional violation").

Although not directly pertinent to the state action inquiry here,

state action has also been found in circumstances where the private

actor operates as a "‘willful participant in joint activity with the State

or its agents,’" Brentwood, 121 S. Ct. at 930 (quoting Lugar, 457 U.S.

at 941), or when "a nominally private entity . . . is controlled by an

‘agency of the State,’" id. (quoting Pennsylvania v. Board of Dirs.,

353 U.S. 230, 231 (1957) (per curiam) (holding that state agency act-

ing as a trustee for a private trust violated the Fourteenth Amendment

when it refused to allow admission of black applicants to a college in

accordance with the private trust that created it); see also Evans v.

Newton, 382 U.S. 296, 302 (1966) (holding that park established for

the use of only white persons by a private trust must be treated as

12 MENTAVLOS v. ANDERSON

public institution for purposes of the Fourteenth Amendment). And,

state action has been found where a private entity is entwined with

governmental policies or the government is entwined in the manage-

ment or control of a private entity. See Brentwood, 121 S. Ct. at 927

(holding that the regulatory activity of a private, statewide athletic

association "should be treated as state action owing to the pervasive

entwinement of state school officials in the structure of the associa-

tion."); Lebron v. National R.R. Passenger Corp., 513 U.S. 374, 400

(1995) (holding that Amtrak, a corporation created and controlled by

the government, would be considered an agency or instrumentality of

the government for purposes of individual constitutional rights);

Evans, 382 U.S. at 299 ("[W]hen private individuals or groups are

endowed by the State with powers or functions governmental in

nature, they become agencies or instrumentalities of the State and

subject to its constitutional limitations.").

Finally, we note that even the presence of these circumstances or

factors might not be conclusive of the state action issue because "facts

that suffice to show public action (or, standing alone, would require

such a finding) may be outweighed in the name of some value at odds

with finding public accountability in the circumstances." Brentwood,

121 S. Ct. at 934; see Polk County v. Dodson, 454 U.S. 312, 323 n.13

(1981) (holding that actions of a public defender employed by the

State were private despite public employment because a public

defender does "not ac[t] on behalf of the State; he is the State’s adver-

sary").

IV.

On appeal, Mentavlos contends that the district court erred in con-

cluding that Anderson and Saleeby did not act under color of state law

when they allegedly harassed and abused her because of her gender.

Specifically, Mentavlos contends that the district court applied the

wrong test for state action, and that we should conclude that the chal-

lenged actions are fairly attributable to the State, and therefore were

taken under color of state law, because (1) training civilians for the

military in a rigorous military environment is a traditional govern-

mental function, and (2) the cadets were acting pursuant to the disci-

plinary authority bestowed upon them by the rules, regulations, and

customs of The Citadel, which receives substantial assistance, primar-

MENTAVLOS v. ANDERSON 13

ily financial in nature, from the State of South Carolina. We address

each contention in turn.

A.

We begin with Mentavlos’ assertion that the district court applied

the wrong test for state action because the court cited to the "state

action" criteria described by this court in Haavistola v. Community

Fire Company, 6 F.3d 211 (4th Cir. 1993), in rendering its decision.

According to Mentavlos, this was error because Haavistola has now

been overruled, albeit implicitly, by our decision in Goldstein v.

Chestnut Ridge Volunteer Fire Company, 218 F.3d 337 (4th Cir.

2000). We disagree.4

Although "‘cases deciding when private action might be deemed

that of the state have not been a model of consistency,’" Lebron, 513

U.S. at 378 (quoting Edmonson, 500 U.S. at 632 (O’Connor, J., dis-

senting)), the critical inquiry has remained constant. After examining

the relevant facts and circumstances, "the inquiry in each case is

whether the conduct is fairly attributable to the state." Arlosoroff, 746

F.2d at 1021; see also Burton, 365 U.S. at 722); United Auto Workers

Local 5285 v. Gaston Festivals, Inc., 43 F.3d 902, 906 (4th Cir. 1995)

("The central inquiry in determining whether a private party’s conduct

will be regarded as action of the government is whether the party can

be described in all fairness as a state actor." (internal quotation marks

omitted)).

When determining whether challenged conduct is "fairly attribut-

able" to the State, this court has, from precedents existing at the perti-

nent times and in light of the specific facts before it, defined various

tests or factors which may be considered. For example, in Andrews

v. Federal Home Loan Bank, 998 F.2d 214 (4th Cir. 1993), we identi-

fied four circumstances under which the Supreme Court had held that

4

We note the compelling counter-argument that a panel of this court

cannot overrule, explicitly or implicitly, the precedent set by a prior

panel of this court. Only the Supreme Court or this court sitting en banc

can do that. See Bell v. Jarvis, 236 F.3d 149, 159 (4th Cir. 2000) (en

banc). We simply do not read Goldstein as an attempt to do so.

14 MENTAVLOS v. ANDERSON

a private party may be deemed a state actor for purposes of § 1983

liability:

(1) when the state has coerced the private actor to commit

an act that would be unconstitutional if done by the state; (2)

when the state has sought to evade a clear constitutional

duty through delegation to a private actor; (3) when the state

has delegated a traditionally and exclusively public function

to a private actor; or (4) when the state has committed an

unconstitutional act in the course of enforcing a right of a

private citizen.

Id. at 217; see also DeBauche v. Trani, 191 F.3d 499, 507 (4th Cir.

1999), cert. denied, 120 S. Ct. 1451 (2000).

In Haavistola, another panel of this court summarized three situa-

tions in which conduct by a private entity could be fairly attributable

to the state: (1) when a sufficiently close nexus exists between a regu-

lated entity and a state such that the actions of the former are fairly

treated as those of the state; (2) when the state "has exercised coercive

power or has provided such significant encouragement that the action

must in law be deemed to be that of the state"; and (3) "when the pri-

vate entity has exercised powers that are traditionally the exclusive

prerogative of the state." Haavistola, 6 F.3d at 215 (internal citations

and quotation marks omitted).

Most recently, in Goldstein, we emphasized the fact-based nature

of the state action inquiry, reiterating that "the state action determina-

tion requires an examination of all the relevant circumstances, in an

attempt to evaluate the degree of the Government’s participation in

the private party’s activities." Goldstein, 218 F.3d at 342 (internal

quotation marks omitted). There, we identified several considerations

which are pertinent to the inquiry: (1) "whether the injury caused is

aggravated in a unique way by the incidents of governmental author-

ity"; (2) "the extent and nature of public assistance and public benefits

accorded the private entity"; (3) "the extent and nature of governmen-

tal regulation over the institution"; and (4) "how the state itself views

the entity, i.e., whether the state itself regards the actor as a state

actor." Id. at 343 (internal quotation marks omitted). Like its pre-

decessors in this circuit, however, the Goldstein decision summarized

MENTAVLOS v. ANDERSON 15

considerations already set forth by precedent, and did not purport to

overrule our prior precedents or espouse new areas of inquiry. Indeed,

Haavistola summarized the standard set forth by the Supreme Court

in Blum, 457 U.S. at 1004-05, see Haavistola, 6 F.3d at 215, which

is still relied upon by the Court today, see Brentwood, 121 S. Ct. at

930.

Accordingly, we reject Mentavlos’ assertion that Haavistola was

overruled by Goldstein and, as a consequence, that the district court

applied an incorrect test to the facts before it. Like our colleagues in

prior panel decisions, we are guided in this complex area by the fac-

tors which have been described by the Supreme Court in prior prece-

dents and which are pertinent to the circumstances of this case. Thus,

we turn to the ultimate inquiry before us: Is there a sufficiently "close

nexus" between the challenged actions of Anderson and Saleeby and

the State of South Carolina such that their actions "‘may be fairly

treated as that of the State itself.’" Brentwood, 121 S. Ct. at 930 (quot-

ing Jackson, 419 U.S. at 351).

B.

We begin with Mentavlos’ claim that the actions of The Citadel

cadets were taken "under color of" state law because the State has del-

egated to The Citadel and its Corps of Cadets "‘powers traditionally

exclusively reserved to the State.’" See American Mfrs., 526 U.S. at

55 (quoting Jackson, 419 U.S. at 352). Specifically, Mentavlos asserts

that The Citadel is in the business of serving the traditional govern-

mental function of training civilians for the military in a rigorous mil-

itary environment much like the United States service academies —

Westpoint, the Naval Academy, and the Air Force Academy. Because

cadets at military academies have been considered to be "in the mili-

tary" for purposes of the Feres doctrine, see Feres v. United States,

340 U.S. 135, 146 (1950) (holding that military personnel may not

bring suit under the FTCA for injuries sustained in the course of mili-

tary service); see also Collins v. United States, 642 F.2d 217, 220-21

(7th Cir. 1981) (applying Feres doctrine to a cadet at Air Force Acad-

emy), the argument goes, we should hold that student cadets at The

Citadel are "in the military" for purposes of the color-of-state-law

requirement of § 1983.

16 MENTAVLOS v. ANDERSON

1.

Like the district court, we find Mentavlos’ proffered analogy to

military service academies and their cadets to be untenable. We rec-

ognize that "[o]ne of the paradigmatic means by which a private party

becomes subject to section 1983 is through the government’s confer-

ral upon that party of what is, at core, a sovereign power." Gaston,

43 F.3d at 906. And, we have little trouble accepting that training

civilians who have enlisted in the military for military service is fairly

characterized as a traditionally sovereign power. However, The Cita-

del, unlike the military service academies, is not in the business of

training soldiers for military service.

Although The Citadel utilizes a military-style environment, its

stated mission is "to educate male undergraduates as members of the

South Carolina Corps of Cadets and to prepare them for post-graduate

positions of leadership through academic programs of recognized

excellence supported by the best features of a structured military envi-

ronment." Supp. J.A. 346. In other words, the mission of The Citadel

is to educate civilian students and produce community leaders, which

has never been held to be the exclusive prerogative of a State. Cf.

Rendell-Baker, 457 U.S. at 842 (holding that education of malad-

justed high school students, while a public function, is not one tradi-

tionally reserved to the states); Arlosoroff, 746 F.2d at 1021 (holding

that the regulation of inter-collegiate athletics is not a function tradi-

tionally, exclusively reserved to the state). Noticeably absent, of

course, is a mission to train soldiers for the military.

Nor does the Citadel’s use of a military-style environment fairly

compel the conclusion that The Citadel has been delegated the sover-

eign function of training young men and women for the military. As

part of its curriculum, The Citadel requires its Corps of Cadets stu-

dents to participate in a Senior ROTC program. But, like other state-

supported colleges, The Citadel is not a formal part of the United

States military, nor are its students enlisted members of a military

branch. As is the case with ROTC students at all civilian college cam-

puses, Citadel students may enlist in the armed forces in conjunction

with their ROTC training, but have no service commitment by virtue

of their mere attendance at The Citadel. They are no more members

of a military branch than students attending the other state-supported

MENTAVLOS v. ANDERSON 17

colleges and universities in South Carolina. As the district court aptly

observed:

[w]hile The Citadel bases its educational experience on a

military model, the comparison to the [service] academies

ends there. The education is no more at government expense

than at any other state supported college. Neither do Citadel

students incur a service obligation simply because they

attend The Citadel. Most significantly, Citadel cadets are not

members of the armed forces, unless they are members of

the reserve as a consequence of signing a contract in a

ROTC program. In that regard, Citadel cadets stand in no

different position than an ROTC student at any other col-

lege, whether public or private.

Mentavlos, 85 F. Supp. 2d at 622 (footnote omitted). The numbers

confirm this fact: only two of 1800 students at The Citadel in 1996

were commissioned military officers (and those two only because

they had attended an early commissioning program elsewhere) and it

was stipulated that only about one-third of the Corps of Cadets enters

military service upon graduation. Furthermore, none of the cadets

involved here (Mentavlos, Anderson, or Saleeby) held ROTC con-

tracts. Consequently, we are not persuaded that The Citadel is analo-

gous to the service academies of the United States military, or that it

has otherwise been delegated the sovereign task of training soldiers

for service in the military.5

For similar reasons, Mentavlos’ reliance upon application of the

Feres doctrine to cadets at the military service academies is inapt. In

Collins, the Seventh Circuit applied the Feres doctrine to a United

States Air Force Academy cadet. See Collins, 642 F.2d at 220. Air

Force Academy cadets, however, were considered members of the Air

5

Mentavlos’ reliance upon Dobyns v. E-Systems, Inc., 667 F.2d 1219

(5th Cir. 1982), does not counsel a different conclusion. In Dobyns, a pri-

vate company engaged as a "peacekeeper," providing military protection

in the Sinai for the federal government, was held to be a state actor. See

id. at 1220. The Citadel and its cadets, of course, are not engaged in mili-

tary protection, nor have the functions of military protection or military

training been delegated to them by the state or federal governments.

18 MENTAVLOS v. ANDERSON

Force by statute, subject to military discipline, and eligible for certain

veterans’ benefits. See Collins, 642 F.2d at 220-21. Unlike students

accepted into one of the military service academies, who are on active

duty in the military and will enter military service, students at The

Citadel may or may not enter military service upon the completion of

their collegiate years. Simply stated, students at The Citadel are not

"in the military," nor is there precedent which would lead us to a con-

trary result.6

Finally, Mentavlos’ reliance upon United States v. Virginia, 518

U.S. 515 (1996), does not avail her. There, the Supreme Court

described the mission of the Virginia Military Academy (VMI), a

similar state military college, as "producing citizen soldiers." Id. at

541. As an initial premise, we note that the mission of The Citadel

makes no such reference to this military-type goal; rather, the stated

mission of The Citadel is to produce community leaders, not soldiers.

But, even if one of The Citadel’s purposes was to train civilian sol-

diers and its upperclass cadets were engaged in serving that purpose,

it would not be enough to transform the individual students’ actions

into state action. Although military training of enlisted soldiers is a

governmental function, military-type training of non-enlisted students

at a state-supported college is a much different charge. There are

numerous ROTC programs operating at public and private campuses

all over this country, not to mention state supported and private acad-

emies and schools with junior ROTC groups, performing military-

type training similar to that performed at The Citadel. As noted by the

district court, there is "no significant distinction between what The

Citadel does and what many private secondary schools do: using a

military model as a basis for instilling discipline and providing leader-

ship training." Mentavlos, 85 F. Supp. 2d at 623. Consequently, the

district court observed that,

6

Mentavlos’ reliance upon Alton v. Texas A&M University, 168 F.3d

196, 199-200 (5th Cir. 1999), and Wake v. United States, 89 F.3d 53 (2d

Cir. 1996), is also misplaced. In Alton, the court assumed, but expressly

did not decide, that students at Texas A&M, a military college similar to

The Citadel, were state actors. See Alton, 168 F.3d at 199-200. In Wake,

a student of Norwich University, also a military college, was held subject

to the Feres doctrine. See Wake, 89 F.3d at 62. However, the student was

an enlisted member of the Navy Reserves, traveling in a Navy ROTC

vehicle incident to military service when injured. See id. at 55-57.

MENTAVLOS v. ANDERSON 19

[u]nder [Mentavlos’] theory, every high school military

academy would be engaged in an "exclusive state function."

The long standing prevalence of such private institutions,

demonstrates the non-exclusivity of military model training.

Indeed, it would appear that most high schools based on a

military model are private institutions, although Junior

ROTC is offered at a number of public schools as a compo-

nent of the educational offerings. In short, education and

training based on a military model are not historically an

exclusive state function.

Id. Therefore, we hold that the district court did not err in concluding

that The Citadel cadets have not been cloaked by the State of South

Carolina with sovereign powers traditionally reserved exclusively to

the government.

2.

Mentavlos also attempts to equate The Citadel to the miliary ser-

vice academies because The Citadel and its cadets are entitled to cer-

tain special benefits conferred by the federal and state governments.

Specifically, under the Senior Reserve Officers’ Training Corps (the

Senior "ROTC") Act, see 10 U.S.C.A. §§ 2101 to 2111b (West 1998

& Supp. 2000), The Citadel and five additional civilian colleges are

designated as "senior military colleges," recognized for the quality of

the military leaders they produce, see 10 U.S.C.A. § 2111a(f).7 As

such, Congress has provided that active duty military officers may be

designated to serve as the Commandant or Assistant Commandant of

the college and to serve as instructors and tactical officers under cer-

tain circumstances, see 10 U.S.C.A. §§ 2111a(a)-(c), and students

who graduate from senior military colleges are guaranteed active duty

assignments in the military upon graduation if they desire such ser-

vice, are otherwise qualified medically and physically, and are recom-

mended for such duty by their ROTC professors of military science

at the college, see 10 U.S.C.A. § 2111a(e). South Carolina also

7

The six Senior Military Colleges are Texas A & M University, Nor-

wich University, The Virginia Military Institute, The Citadel, Virginia

Polytechnic Institute and State University, and North Georgia College

and State University. See 10 U.S.C.A. § 2111a(f) (West 1998).

20 MENTAVLOS v. ANDERSON

affords special consideration to certain persons affiliated with The

Citadel, although not to the student cadets. It has provided that "[a]ll

members of the board of visitors, administrative staff and faculty per-

sonnel of The Citadel, the Military College of South Carolina, shall

be eligible to be commissioned officers in the unorganized militia of

South Carolina." S.C. Code Ann. § 25-1-520 (Law. Co-op. 1989).

Mentavlos claims that because the United States Congress has rec-

ognized The Citadel as a "senior military college" entitled to certain

federal benefits and because the South Carolina legislature has

bestowed special consideration to it, the State of South Carolina

would consider the actions of the cadets to be governmental action by

the State itself. We disagree.

By legislation, Congress has provided that senior military colleges

may be provided with military officers to serve in the college admin-

istration and that graduates of those colleges, if they so request, will

be allowed to join and serve in the military as commissioned officers

if otherwise qualified. At best, however, this legislation reflects rec-

ognition of the value of the military type experience provided by the

colleges and, in that respect, The Citadel and its cadets may indirectly

serve a governmental function. But, this is insufficient to support a

finding of state action. Whereas state action may been found "in the

exercise by a private entity of powers traditionally exclusively

reserved to the State," Jackson, 419 U.S. at 352, the "public function

test is so carefully confined" that it "has been found in only narrow

circumstances," Goldstein, 218 F.3d at 348 (internal quotation marks

omitted). See also DeBauche, 191 F.3d at 508 (noting that the public

function "category is very narrow"). "[T]he relevant question is not

simply whether a private group is serving a public function," but

whether "the function performed has been traditionally the exclusive

prerogative of the State." Rendell-Baker, 457 U.S. at 842 (internal

quotation marks omitted); see also Jackson, 419 U.S. at 353; Haavis-

tola, 6 F.3d at 216. Thus, "[t]he fact that a private entity performs a

function which serves the public does not make its acts governmental

action." American Mfrs., 526 U.S. at 56 (quoting San Francisco Arts

& Athletics, Inc. v. United States Olympic Comm’n, 483 U.S. 522,

544 (1987)). Consequently, it cannot fairly be said that Congress, by

affording a senior military college and its cadets certain legislative

MENTAVLOS v. ANDERSON 21

benefits, delegated a traditional, exclusive governmental function to

The Citadel or to its non-enlisted, non-military student cadets.

Nor are we persuaded by Mentavlos’ claim that the State of South

Carolina would view Citadel cadets as state actors as a consequence

of this legislative enactment. In the context of the traditional, exclu-

sive governmental function test, "[a]nother factor relevant to the state

action determination is how the state itself views the entity." Gold-

stein, 218 F.3d at 347; see also Haavistola, 6 F.3d at 218 (holding

that the determination of "when a private entity assumes the role of

state actor due to its involvement or provision of an exclusive public

function . . . hinges on how a given state itself views the conduct of

the function by the private entity."). While not a dispositive factor, the

fact that a state views a private entity as a state actor understandably

"militates in favor of our finding of state action." Goldstein, 218 F.3d

at 347. Mentavlos, however, points to nothing within the federal act

which would support a conclusion that the State of South Carolina

would consider Citadel students to be state actors, for whose actions

the State should be held liable. And, the contention that the State of

South Carolina would consider The Citadel cadets to be state actors

by virtue of a state legislative enactment according a special benefit,

not upon the cadets, but upon employees and governing members of

The Citadel, is plainly without merit.

C.

Mentavlos next contends that the actions of Anderson and Saleeby

are "fairly attributable to the State," and therefore should be consid-

ered to have been taken under color of state law, because the State

provides financial assistance to The Citadel and extensively regulates

its military program. We disagree.

As noted previously, because Anderson and Saleeby are private

students, they may not be held to constitutional standards unless there

is a sufficiently "close nexus" between the State and their challenged

actions such that "the latter may be fairly treated as that of the State

itself." American Mfrs., 526 U.S. at 52 (internal quotation marks

omitted); see Brentwood, 121 S. Ct. at 930. The determination of

"[w]hether such a ‘close nexus’ exists," in turn, "depends on whether

the State ‘has exercised coercive power or has provided such signifi-

22 MENTAVLOS v. ANDERSON

cant encouragement, either overt or covert, that the choice must in

law be deemed to be that of the State.’" American Mfrs., 526 U.S. at

52 (quoting Blum, 457 U.S. at 1004)). Action which is taken by pri-

vate persons "with the mere approval or acquiescence of the State" is

not sufficient to justify a holding that the action is state action. Ameri-

can Mfrs., 526 U.S. at 52; see also Flagg Bros. v. Brooks, 436 U.S.

149, 164 (1978) ("This Court . . . has never held that a State’s mere

acquiescence in a private action converts that action into that of the

State."). More than the mere adoption of "‘a passive position toward

the underlying private conduct’" is required. Goldstein, 218 F.3d at

342 (quoting Skinner v. Ry. Labor Executive Ass’n, 489 U.S. 602, 615

(1989). Rather, we look for "indices of the Government’s encourage-

ment, endorsement, and participation" in the challenged actions. Skin-

ner, 489 U.S. at 615-616.

The district court found that Mentavlos failed to make this show-

ing, noting that while the actions of Anderson and Saleeby "may have

been made possible by the system established by the state," the "ca-

dets did not receive significant encouragement and did not exercise

the state’s coercive powers" in so acting. Mentavlos, 85 F.Supp.2d at

625. We agree.

1.

We need not tarry long with Mentavlos’ claim that Anderson and

Saleeby were state actors for purposes of § 1983 because The Citadel,

as a state-supported college, is governed by state officials whose pow-

ers are defined by statute and receives financial assistance and other

support from the state. See generally S.C. Code Ann. § 59-101-10

(Law. Co-op. Supp. 2000) (listing state-supported colleges and uni-

versities in South Carolina); S.C. Code Ann. §§ 59-121-10 to 450

(Law. Co-op. 1990 & Supp. 2000) (statutes pertaining to the opera-

tion of The Citadel). While substantial state assistance is generally a

factor to be considered in determining whether the state has coerced

or significantly encouraged private action, see Goldstein, 218 F.3d at

347, a private party’s dependence upon the state for assistance, even

if substantial, does not transform its actions into actions of the state,

see Rendell-Baker, 457 U.S. at 840-41 (holding that a private school’s

near total dependence upon the State for funds did not render its

employee discharge decisions acts of the State); Blum, 457 U.S. at

MENTAVLOS v. ANDERSON 23

1011 (holding that similar dependence of nursing homes on state

funds did not make the acts of its physicians and administrators acts

of the State); Goldstein, 218 F.3d at 347 (the "receipt of state funds

alone is insufficient to transform private actions into state actions"

(internal quotation marks omitted)). In this case, The Citadel’s receipt

of state financial assistance renders it no different in any material

respect from the other state-supported institutions of higher learning

in the state. See e.g. S.C. Code Ann. §§ 59-117-10 to 330 (Law. Co-

op. 1990 & Supp. 2000) (statutes pertaining to the University of

South Carolina); S.C. Code Ann. §§ 59-119-10 to 1050 (Law. Co-op.

1990 & Supp. 2000) (statutes pertaining to Clemson University).

Mentavlos’ claim in this regard, however, also fails on a more

basic level. While state assistance provided to The Citadel might be

pertinent to a determination of whether The Citadel is a state actor,

that is not the issue before us. Nor, for that matter, does it appear to

be a fact in dispute. Rather, this case involves the question of whether

students who attend The Citadel, as opposed to The Citadel or its

employees or administrators, are state actors for purposes of § 1983.

The Citadel was created by and receives assistance from the state, as

all state-supported colleges do, and its employees are paid by the

state. But, Mentavlos has pointed to no special state assistance, finan-

cial or otherwise, which was provided to the students of The Citadel,

much less such assistance which could warrant a finding that they

were state actors. Of course, we cannot fairly view the unauthorized

actions of private students to be state action merely because they

attend a state-supported college and receive the benefit of public

funds.

2.

We are also unpersuaded by Mentavlos’ claim that the State of

South Carolina’s regulation of The Citadel and, in turn, The Citadel’s

rules and regulations made applicable to its students, should compel

the conclusion that Anderson and Saleeby were acting "under color

of" state law when they engaged in the challenged actions. Specifi-

cally, Mentavlos claims that upperclass cadets at The Citadel, by vir-

tue of the Cadet Regulations (i.e., the Blue Book) and the customs at

the school, were given broad power or authority to punish freshmen

24 MENTAVLOS v. ANDERSON

"fourth class" cadets and to engage in hazing such as that allegedly

suffered by Mentavlos.

Although Mentavlos correctly asserts that "the extent and nature of

governmental regulation over the institution" is a factor to be consid-

ered in the state action inquiry, see Goldstein, 218 F.3d at 343, the

mere fact that a private individual or "business is subject to state regu-

lation does not by itself convert its action into that of the State," Blum,

457 U.S. at 1004 (quoting Jackson, 419 U.S. at 350). And, "state reg-

ulation unrelated to the alleged constitutional violation, even if exten-

sive, is not sufficient, in itself," to transform private action into state

action. Goldstein, 218 F.3d at 347.

In this case, contrary to Mentavlos’ characterization, the Blue Book

does not grant to upperclass cadets broad power or authority to disci-

pline freshmen cadets, nor cloak upperclass cadets with the authority

of the State for all purposes. Rather, the authority of upperclass cadets

at The Citadel is quite limited. Freshmen cadets are directed to obey

orders from upperclass cadets. But, within the confines of the same

system creating the authority of upperclass cadets to correct freshmen

cadets for minor violations and to report others, The Citadel expressly

requires the cadets to deal with the incoming freshmen women in a

professional manner and expressly prohibits hazing, abusive treat-

ment, or discrimination of any student, male or female. Cadets are

required to obtain express permission from a fellow cadet before

engaging in even the slightest touching of the cadet, and upperclass

cadets are not authorized to impose disciplinary action, except for the

most minor rule infractions.

In addition to the limited nature of this grant of authority, The Cita-

del provides its students with a variety of methods to report violations

of the fourth class system, requires the immediate reporting of alleged

abuses by all students, and renders expedient punishment for viola-

tions of the fourth class system, including violations of the prohibition

against abusive or discriminatory treatment. Indeed, the abuses Men-

tavlos reported were punished when brought to the attention of The

Citadel administration and were not taken lightly.

Consequently, upperclass Citadel cadets have some limited mea-

sure of authority over freshmen cadets like Mentavlos by virtue of the

MENTAVLOS v. ANDERSON 25

unique fourth class system created and sanctioned by The Citadel and

The Citadel administration has tolerated the not uncommon military-

type practice of upperclassmen mildly harassing freshmen either ver-

bally or by requiring them to engage in undesirable, but physically

harmless, tasks such as cleaning or polishing. However, the school

clearly "did not endorse or encourage abuses of the fourth class sys-

tem and, in fact, endeavored to discourage abuses of the type alleged

by" Mentavlos. Mentavlos, 85 F. Supp. 2d at 619. Additionally, Men-

tavlos presented no contrary evidence that any member of The Citadel

administration, faculty, or staff ever encouraged, endorsed, partici-

pated in, refused to prevent, or acquiesced in the challenged actions.

In Milburn v. Anne Arundel County Department of Social Services,

871 F.2d 474, 479 (4th Cir. 1989), we declined to hold that abusive

foster parents were "state actors" for purposes of § 1983, despite the

fact that the foster parents were licensed by the state and were

entrusted by the state with the care of the abused child. The state "was

not responsible for the specific conduct of which the plaintiff com-

plain[ed], that is, the physical child abuse itself . . .[,] exercised no

coercive power over the [foster parents]," and did not "encourage

them" in any way. Id.; see also Leeds v. Meltz, 85 F.3d 51, 54 (2d Cir.

1996) (holding that extensive regulation and public funding, while

factors to be considered, cannot "transform a private actor into a state

actor; instead, the state must have exerted its coercive power over, or

provided significant encouragement to, the defendant before the latter

will be deemed a state actor").

Similarly, the findings of the district court in this case, which are

not clearly erroneous, demonstrate that the challenged actions of

Anderson and Saleeby could not be fairly characterized as taken in

furtherance of the limited authority granted to upper class cadets to

instruct and correct fourth class cadets under the Blue Book, nor taken

by virtue of a Citadel "custom" to engage in the types of abusive,

harassing acts of which Mentavlos’ complains.

3.

Mentavlos advances two additional arguments as to why we should

consider the challenged actions of Anderson and Saleeby to be state

action, neither of which we find to be persuasive.

26 MENTAVLOS v. ANDERSON

First, Mentavlos asserts that it is of no consequence that Anderson

and Saleeby acted in obvious contravention of the Blue Book’s

express prohibitions because state officials acting in their official

capacities are generally held to act "under color of" state law, even

if they act in abuse of their lawful authority. See United States v.

Classic, 313 U.S. 299, 326 (1941); Ex parte Virginia, 100 U.S. 339,

346-47 (1880). Such a "[m]isuse of power, possessed by virtue of

state law and made possible only because the wrongdoer is clothed

with the authority of state law," Mentavlos asserts, must be consid-

ered to be action taken "under color of" state law. Classic, 313 U.S.

at 326 (finding that state election officials acted "under color of" state

law when they failed to count votes as cast, altered ballots, and falsi-

fied certification of the votes); see also Screws v. United States, 325

U.S. 91, 107 (1945) (finding that a sheriff and his deputy acted "under

color of" state law when they killed a prisoner in their care without

justification). Because the Blue Book also required freshmen to obey

the orders of upperclass cadets, the argument goes, the upperclass

cadets were effectively placed in a position analogous to state law

enforcement officials, rendering their wrongful actions state action for

purposes of § 1983.

In support of this proffered analogy, Mentavlos relies particularly

upon our decision in Scott v. Vandiver, 476 F.2d 238 (4th Cir. 1973),

in which we held that two county employees deputized by a local

sheriff could be "state actors" for purposes of § 1983 where they mis-

used the law enforcement power granted by state law by utilizing

excessive force in trying to arrest an innocent person. Pursuant to a

longstanding agreement with the county supervisor, county employ-

ees could be requested to assist the sheriff on manhunts and the two

men involved had served in this role in the past. As such, we held that

the county employees were also temporary law enforcement officers

when they arrested the plaintiff, "bring[ing] them squarely within

§ 1983." Id. at 241.

In contrast to the county employees in Scott, who had been desig-

nated law enforcement officials at the time they engaged in the chal-

lenged actions, we declined to hold county employees liable under

§ 1983 for an assault upon a fellow employee in Hughes v. Halifax

County School Board, 855 F.2d 183 (4th Cir. 1988), even though the

assault occurred during working hours, on county property, for

MENTAVLOS v. ANDERSON 27

motives related to their employment with the county. We rejected the

claim that the co-employees "were clothed with state authority in so

acting," id. at 186, noting that unlike in the case of police officers or

judges who abuse their state authority while clothed with state power,

"[t]he indicia of state authority just isn’t the same," id. at 187.

In this case, we are not confronted with the question of whether

state officials or employees have acted in abuse of lawful authority

granted to them by the State. The Citadel may operate under a stricter

form of student self-government, and one unique to military-style col-

leges, but the concept of student self-governance at public and private

institutions of higher education, including the use of honor codes and

the limited delegation of disciplinary authority to certain members of

the student body, is hardly a novel concept. A public school or college

student is not fairly transformed into a state official or state actor

merely because the school has delegated to that student or otherwise

allowed the student some limited authority to act. Cf. Yeo v. Town of

Lexington, 131 F.3d 241 (1st Cir. 1997) (en banc) (holding that stu-

dent editor’s decision not to publish an ad in the school yearbook was

not state action); Indorato v. Patton, 994 F. Supp. 300 (E.D. Pa. 1998)

(holding that state university football player who struck a referee dur-

ing a sanctioned football game was not a state actor).

Instead, we are called upon to decide whether the State has encour-

aged or coerced private individuals to take action which is violative

of the constitutional rights of another. At best, Anderson and Saleeby,

by virtue of their status as college juniors at The Citadel, were asked

and expected to assist in the instruction and correction of freshmen

cadets in the applicable rules of The Citadel, but were expressly pro-

hibited from engaging in any actions which could be considered haz-

ing or otherwise abusive of the freshmen students. Mentavlos, having

been provided with a copy of the regulations governing their conduct,

was made aware of the limitations on the authority given to upper-

class cadets and knew that most or all of the alleged instances of

harassment were beyond the authority given and, indeed, in violation

of The Citadel’s hazing policy. We do not view this limited grant of

authority to upperclass students to be analogous to the situation of

police officers given broad authority to detain and arrest. Unlike in

the case of police officers, or other state officials using their positions

to accomplish an unlawful purpose, the cadets were not cloaked with

28 MENTAVLOS v. ANDERSON

such broad power, nor were they acting pursuant to the limited

authority vested in them by the Blue Book. They were students at a

state-supported college, acting in a manner proscribed by The Citadel

and known by Mentavlos to be violative of the applicable rules.

Under these circumstances, their actions cannot in law or fairness be

attributed to the State of South Carolina, which is the pertinent

inquiry demanded by the facts before us today. See Brentwood, 121

S. Ct. at 930; American Mfrs., 526 U.S. at 50; cf. Lugar, 457 U.S. at

940 (holding that plaintiff did not state a cause of action under § 1983

because the allegation that a private party’s conduct was "unlawful

under state law" was tantamount to saying that the conduct "could not

be ascribed to any governmental decision; rather, respondents were

acting contrary to the relevant policy articulated by the state" (internal

quotation marks omitted)).

Mentavlos also offers the Court’s recent decision in Santa Fe Inde-

pendent School District v. Doe, 120 S. Ct. 2266 (2000), as support for

her claim that the actions of the cadets should be attributed to The

Citadel and the state. In Santa Fe, the Supreme Court confronted the

question of whether student-led, student-initiated invocations offered

prior to football games should be considered private speech endorsing

religion protected by the Free Speech and Free Exercise Clause or

government speech endorsing religion which the Establishment

Clause would forbid. Although the school district’s policy purported

to allow the students to offer either a religious or non-religious invo-

cation or message, the Court concluded that the religious messages

could not be considered private speech because the messages were

authorized by government policy, took place on government property

at government-sponsored school-related events and, of particular sig-

nificance, were explicitly and implicitly endorsed and encouraged by

the school district. See id. at 2275-77. To the extent Santa Fe has

application to the claim before us, it is readily distinguishable because

The Citadel did not authorize its students to engage in the challenged

harassing actions, and did not endorse or encourage them to do so.

The Citadel, on the contrary, expressly prohibited acts of this nature.

Because the cadets’ decision to engage in unauthorized harassment

of Mentavlos was not coerced, compelled, or encouraged by any law,

regulation or custom of the State of South Carolina or The Citadel,

we hold that the actions of the student cadets cannot "in all fairness"

MENTAVLOS v. ANDERSON 29

be considered attributable to the State for purposes of § 1983. Accord-

ingly, the requisite "close nexus" between The Citadel’s creation and

sanctioning of the fourth class system and the specific actions which

Mentavlos alleges violated her constitutional right to equal protection

under the Fourteenth Amendment is lacking.

V.

For the foregoing reasons, we agree with the district court’s deter-

mination that the alleged conduct of Citadel cadets Anderson and

Saleeby is not "fairly attributable" to The Citadel or the State of South

Carolina such that it would be proper to conclude that they were state

actors when they allegedly deprived Mentavlos of her constitutional

right to equal protection under the Constitution. Because Anderson

and Saleeby did not act "under color of" state law when they engaged

in the challenged actions, we affirm the district court’s grant of sum-

mary judgment to them.8

AFFIRMED

8

Because we conclude that Anderson and Saleeby did not act under

color of state law, we need not reach the issue of whether their actions,

if taken under color of state law, would have deprived Mentavlos of a

right secured by federal law. Consequently, we also need not consider

Mentavlos’ appeal of the district court’s grant of summary judgment to

Saleeby on the additional ground that Mentavlos failed to present evi-

dence that he acted with improper gender animus.