Petition for Writ of Certiorari — Mentavlos v. Anderson

Supreme Court,U.S. —

FILED UI )

0141 224 AUG = 2001

OFFICE OF THe ULtenx

No.

In The

Supreme Court of the United States

.

JEANIE MENTAVLOS,

Petitioner,

JOHN JUSTICE ANDERSON and JAMES SALEEBY,

Respondents.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

¢

PETITION FOR A WRIT OF CERTIORARI

¢

LEON FRIEDMAN

148 East 78th Street

New York, N.Y. 10021

(212) 737-0400

Counsel of Record

RicHARD A. HARPOOTLIAN

1410 Laurel Street

Columbia, S.C. 29202

(803) 252-4848

Attorneys for Petitioner

ae ————_—__—_———

QUESTIONS PRESENTED

1. Whether Upper Class Cadets at The

Citadel, The Military College of South Carolina (a

state institution afforded special status by Congress as

a senior military college), who were given disciplinary

authority by school regulations to demand obedience

from entering students and misused that authority to

sexually harass incoming women students can be

considered state actors in view of the total

entwinement of the state in all aspects of The Citadel’s

operations.

2. Whether the Fourth Circuit erred in

continuing to apply a rigid-four part test for state

action, in view of this Court’s direction in Brentwood

Academy v. Tennessee Secondary School, 121 S.Ct.

924 (2001) that a more flexible, fact-specific test of

entwinement should be applied under which state

action is found if there is sufficient involvement of

state institutions or sufficient utilization of

governmental power in the acts complained of so that

the actions should be attributed to the State and the

protections of the Constitution invoked.

3. Whether the Court below erred in

finding that upper class cadets at The Citadel were not

state actors despite the fact that they possessed power

granted them by the state to require strict obedience to

their orders and exercised that power to inflict

punishment on plaintiff because of her gender?

4. Whether the Court below erred in

finding that upper class cadets were not state actors

despite the fact that they were engaged in training and

disciplining lower class cadets for the military, a

ii

function that is traditionally the exclusive prerogative

of the State?

5. Whether the District Court erred in

granting summary judgment on behalf of one

Respondent on the grounds that Petitioner did not

produce evidence of any gender based discrimination,

despite the fact that the cadet lit a fire on her sweatshirt

so that her undergarments could be seen.

ili

PARTIES

The Petitioner in this action is Jeanie

Mentavlos.

Respondents in this action are John Justice

Anderson and James Saleeby.

Defendants in this action (who are not

respondents) are The Citadel. the Military College of

South Carolina, The Board of Visitors of The Citadel,

the Military College of South Carolina, Richard Ellis,

Nicholas Belcher, Eric Amhaus and Edward Bohm.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........--..+--222++0 i

PARTIES BELOW. .........0c2eeeeeeeeeeeeeeesencees ili

TABLE OF CONTENTS........-.0--seeeeeeeeeeeees Vv

TABLE OF CITATIONSG..........-.0eeeeeeeeeeeeees vii

OPINIONS BELOW. ..........::e0eeeeeeeeeeeeeeeeees 1

JURISDICTION. ........:.-c.cescecceececcecceeceeeees 1

STATUTES INVOLVED. ..........--02 essere eeee ones 1

STATEMENT OF THE CASE. .........:+-+2+e000 2

REASONS FOR GRANTING THE WRIT......... 16

I. The Fourth Circuit Continued To

Apply a Rigid Test for State Action

Explicitly Rejected by this Court in

Brentwood and This Court Should

Review the Holding Below to Insure

That Brentwood is Properly Applied

By the Lower Federal Courts..........---. 16

II. This Court Should Review The

Lower Court’s Holding that State

Action Cannot Be Found Unless

the State Authorized the Actions

vi

- III. The Court Below Erred in Holding

that Training Citizen Soldiers in a

Strict Military Environment is

Not a Traditional State Function...... 22

IV. This Court Should Review the

District Court’s Conclusion That

There Was No Gender Motivated

Harassment by Cadet Saleeby.......... 26

CAPA P nT acasbnenvaneiiechrshweuianaenasbe 27

APPENDIX:

APPENDIX A:

OPINION OF THE FOURTH

CIRCUIT UNITED STATED

COURT OF APPEALS

SPUR TR FBO Rasas kis visteteceins la

APPENDIX B:

OPINION OF THE FEDERAL

DISTICT COURT, DISTRICT

OF SOUTH CAROLINA

Dated February 15, 2000............... 4la

d

}

‘f

Vii

TABLE OF AUTHORITIES

CASES

Page

Alton v. Texas A&M University, 168

F.3d 196 (5™ Cir. 1999) ......... 25

Andrews v. Federal Home Loan Bank,

998 F.2d 214 (4" Cir. 1993)... 2, 14

Brentwood Academy v. Tennessee

Secondary School, 121 S.Ct. 924

| SAS ener passim

DeBauche v. Trani, 191 F.3d 499

ge, rele 3

Faulkner v. Jones, 10 F.3d 226, 14 F.3d

3, 51 F.3d 440 (4" Cir. 1995) 4

Goldstein v. Chestnut Ridge Volunteer

Fire Co., 218 F.3d 337 (4" Cir.

IN Ciehicks teehee ibadiseseess 23, 24

Haavistola v. Community Fire Co. of

Rising Sun, Inc, 6 F.3d 211 (4" Cir.

cca, TETRA og erase 2

NE Se ed 20

Plain v. Flicker, 645 F Supp. 898

GRRE, POUR cnsscscicssccece 24

viii

Rendell-Baker v. Kohn, 457 U.S. 830

__: | ERED PMT omy Re 23

Santa Fe Independent School District v.

Doe, 530 U.S. 290 (2000) ....... 21

Scott v. Vandiver, 476 F.2d 238 (4" Cir.

6, Sea RECUR REa PR 22, 24

Screws v. United States, 325 U.S. 91

SEER sexvitaccccennsen 20

Skelton v. Pri-Cor, Inc, 963 F.2d 100

gl 2. | 24

United States v. Classic, 313 U.S. 299

CRUE Aci ccriavscakhuluawnnsackine 20

United States v. Jones, 136 F.3d 342

a Oe | See ee 4

United States v. Virginia, 518 U.S. 515

West v. Atkins, 487 U.S. 42 (1988) 22

Wilkerson v. Sarver, 72 F.R.D. 605

(E.D. Ark. 1976).....00cc000e. 22

FEDERAL STATUTES

10 U.S.C.A. § § 2101.....00.00.. 18

10 U.S.C.A. § § 211 1a(a)-...... 18

WUSCA. S211 ie 5 ci5i::. 18

ix

POU ME MOORE a icsvocccs 13

to | a ene

MUSC 4

MISCELLANEOUS

Marcia Berman "An Equal Protection

Analysis of Public and Private

all_Male Military Schools," 1991

Univ. of Chic. Legal Forum 211,

ye Se. Te) | nen 26

od ae

PETITION FOR A WRIT OF CERTIORARI

Jeanie Mentavios (‘“Mentavlos”) respectfully

prays that a writ of certiorari issue to review the

judgment and opinion of the United States Court of

Appeals for the Fourth Circuit entered in this

proceeding on May 7, 2001

. OPINIONS BELOW

The opinion of the United States Court of

Appeals for the Fourth Circuit is reported at 249

F.3d. 301 (4 Cir. 2001) and is reproduced in App. A.

at 1la-40a. The opinion and order of the District Court

for the District of South Carolina is reported at 85

F.Supp.2d 609 (D.S.C. 2000) and is reproduced in

App. B at 41a-86a.

JURISDICTION

The opinion of the United States Court of

Appeals Court for the Fourth Circuit was issued on

May 7, 2001 and its judgment was issued on the same

day. This Court has jurisdiction under 28 U.S.C. §

1254(1).

STATUTES INVOLVED IN THIS CASE

42 U.S.C. § 1983: “Every person who, under

color of any statute, ordinance, regulation, custom, or

usage of any State or Territory or the District of

Columbia, subjects or causes to be subjected, any

citizen of the United States or other 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.

STATEMENT OF THE CASE

This case involves the misuse of power by the

Respondents (certain upper class cadets at The Citadel,

the Military College of South Carolina) against

Petitioner, one of the first females admitted to the

institution. Under the “Fourth Class System” described

below, all upper class cadets at the Citadel (including

Respondents) were given disciplinary power over

recently-admitted “knobs” (as the fourth class cadets

were called). The official school regulations required

knobs to obey the orders of the upperclassmen, and

- Respondents misused the authority given to them by

the State to sexually harass Petitioner. The purpose of

requiring strict military discipline within the school

and of demanding that newly admitted cadets obey the

orders of upperclassmen was to prepare cadets for

military life. Furthermore, The Citadel was given

special statutory privileges by Congress in recognition

of its status as a “senior” military college.

Nevertheless, the Fourth Circuit found that the upper

class cadets were not “state actors” amenable to suit

under 42 U.S.C. § 1983.

In arriving at this erroneous conclusion, the

Fourth Circuit ignored this Court’s recent decision in

Brentwood Academy v. Tennessee Secondary School,

121 S.Ct. 924 (2001) (which was cited to the Court)

and continued to apply a rigid four-part test previously

utilized in that Circuit for determining state action.

Under that test, established in Andrews v. Federal

Home Loan Bank, 998 F.2d 214 (4" Cir. 1993) and

later endorsed by the Fourth Circuit in Haavistola v.

acer TF

ON Pe ES ie ey *

Community Fire Co. of Rising Sun, Inc. 6 F.3d 21 a

215 (4th Cir.1993), state action must clearly fit under

one of four subcategories:

A private party can be deemed a state actor in four

contexts: (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. If the

conduct does not fall into one of these four

categories, then the private conduct is not an action

of the state. 998 F.2d at 217. (emphasis added)

The Court below cited and endorsed this rigid four-part

test. 249 F.3d at 313; 18a.

However, this Court in Brentwood rejected any

such rigid approach or four-part test. It noted that:

What is fairly attributable is a matter of normative

judgment, and the criteria Jack 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 condition 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. 121 S.Ct. at 930.

(emphasis added).

In this case there was_ considerable

“entwinement” between the actions complained of in

the complaint and the State of South Carolina. Under

the Brentwood rule, the acts of the Respondents were

so entwined with the goals and powers of the State,

that they must be considered state action.

Statement of Facts

This case involved the massive effort made by

administration and the male student body (the Corps of

Cadets) of The Citadel, the Military College of South

Carolina, to resist the admission of women to the

institution. The male cadets then made the life of the

few female cadets who did enroll as uncomfortable and

miserable as possible so they would leave. The effort

of Shannon Faulkner to enter The Citadel in 1993 lead

to a “scorched earth” legal campaign to keep her out.

See Faulkner v. Jones, 10 F.3d 226, 229 4" Cir.

1993), 14 F.3d 3 (4 Cir. 1994), 51 F.3d 440 (4" Cir.

1995) and United States v. Jones, 136 F.3d 342, 345

(4™ Cir. 1998). The school tenaciously fought every

legal step taken by Ms. Faulkner to vindicate her

constitutional rights, using every delay device possible

and appealing every adverse order.

After a two-week trial in 1994, the District Court

ordered the admission of Ms. Faulkner to The Citadel.

858 F.Supp. 552 (D.S.C. 1994). The legal fight

continued for another year, see 51 F.3d 440 (4th Cir.

1995) before the school was forced to admit Ms.

Faulkner in August 1995. (She left after a short time,

to the well-publicized delight of the made cadets). '

' When Ms. Faulkner arrived at the Citadel in August,

1995, she was met by the most hostile imaginable

errr

i See allllll

Thereafter, The Citadel continued its effort to

resist female applicants, proposing to establish a

separate female military institution. After this Court

held in United States v. Virginia, 518 U.S. 515 (1996)

that the State of Virginia must admit women to the

Virginia Military Academy, (like The Citadel a state-

supported military institution ) holding that an alternate

program at a women’s college was not an adequate

alternative to full admission and prohibiting the state

from excluding women from its state-run military

programs, The Citadel gave up all legal efforts to resist

the admission of women.

Petitioner Mentavlos was one of four women

admitted to The Citadel in the 1996 school year after

the school surrendered to the inevitable. She and one

behavior, almost as bad as the welcome which James

Meredith received when he enrolled at the University

of Mississippi Law School in 1962. Male cadets wore

shirts with a caricature of numerous gray-colored

canines and the statement “1900 bulldogs and one

bitch” boldly displayed on the front and back. There

were threats against her life by outsiders, with little if

any effort made to protect or accept her by the

institution or its students. On August 18, 1995, she

withdrew after less than one week in the school. Upon

her departure, the nation witnessed the jubilation of the

remaining Corps of Cadets as they danced and rejoiced

in the rain on the nightly news after hearing of Ms.

Faulkner’s decision to leave. Ms. Faulkner’s

experiences have been described in a recent book, “In

Glory's Shadow: Shannon Faulkner, the Citadel and a

Changing America,” by Catherine Mangold (New

York, 2000).

other female cadet left during their first year, following

the intense hostility and harassment that they faced.

The Operation of The Citadel

The Citadel is totally controlled by the State of

South Carolina. The college was created by state law

in 1842 (originally to provide a military force to put

down slave rebellions after the Denmark Vesey

uprising in 1822). The members of the Board of

Visitors, the school’s governing body, are the

Governor, the Adjutant General, the State

Superintendent of Education, seven members chosen

by the General Assembly and one of three nominated

by Citadel alumni, but chosen by the Governor. See SC

St. § 59-121-10. State law also regulates and defines

the powers of the Board of Visitors (§ 59-121-40; §59-

121-50), regulates its fund raising and scholarship

activities (§59-121-55) and allows it to incur debt and

issue tax exempt bonds for building dormitories and

other facilities (§ 59-122-20; §59-122-30; §59-122-40;

§59-122-90). Its professors and administrators are state

employees and all paid by state funds.

The school is run on a military model and

upper class cadets are an integral part of its operation.

As noted in the statutes quoted above, all aspects of the

military program at The Citadel are regulated by the

State or by state actors, namely members of the Board

of Visitors and the administrators who run the school.

The Board of Visitors exercised its power to “establish

such regulations as it may deem necessary for the

organization and good government of said college” as

authorized by §59-121-50. Pursuant to this authority,

the school issued its “blue book” — regulations which

control all aspects of the student-cadets experience.

Pursuant to the blue book and in accordance with the

military model on which the school is based, lower

class students must obey orders from upper class

students. The District Court explained:

While Citadel staff and administration retain

ultimate authority for the operation of this military

style system, day-to-day functioning is dependent

on the cadet chain of command. Indeed, many of

the benefits of the military training model derive

from this delegation of authority. The greater

responsibilities under the system go to the more

senior students, who are supervised and mentored

by staff or active duty military personnel assigned

to the school. These more senior students, in turn,

mentor and supervise those students below them.

The school operates on a military model, with an

adversative training system. Blue Book, Chap. 2

(Command, Control and Organization). All students

wear uniforms and are subject to extensive military

style rules and living conditions. Freshmen, in

particular, are subjected to a fairly extreme set of

disciplinary and behavioral rules under what is

referred to as the “Fourth Class System.” 85

F.Supp.2d at 616; 56a.

The District Court quoted from the Blue Book’s

description of the Fourth Class system.

“A. GENERAL. The Fourth Class System at The

Citadel is singularly unique in its evolution,

traditions, implementations, and purpose. The

Fourth Class System is the cornerstone of the

military lifestyle which surrounds each Citadel

Cadet..... ” 85 F.Supp.2d at 616; 56a.

The District Court noted further:

“The Fourth Class System at The Citadel requires

strict and unquestioning obedience, mental and

physical toughness, and mature tolerance of

confrontation and is an intense, high-stress

experience designed to facilitate development of

‘The Whole Man’” Blue Book Chap. 16.B.Blue

Book, Chap. 16.D.2-3. 85 F.Supp.2d at 616-17;

57a.

The Court noted how the system actually works:

Freshmen must come to attention whenever an

upperclassman enters their barracks or speaks to

them. Blue Book, Chap. 16.1.2.f. & 3.d. Freshmen

are allowed only very limited, formal responses to

upperclassmen: “yes Sir;” “no Sir;” “no excuse,

Sir;” and “request permission to make a statement,

Sir.” Blue Book, Chap. 16.G.1..... The freshmen

are required to spend time in drill and in performing

company deiails such as cleaning the common areas

of the barracks. Blue Book, Chap. 16.J.1-7. They

are required to follow detailed and restrictive

procedures at meals and to memorize and recite

certain factual information at meals and other times.

Blue Book, Chap. 16.1.4. a-n & L.1-3. 85 F.Supp.2d

at 617; 57a-58a. .

The Court acknowledged that there was a

tradition of “hazing” under which upperclassmen

would impose punishment and abuse on the “knobs.”

In addition to the official rules, which make life as a

Citadel freshman unusually restrictive for a college

nnn ica enamel

student, it is apparently not at all uncommon for

upperclassmen to mildly harass freshmen either

verbally or by requiring the freshmen to engage in

an activity not of the freshman's choosing (e.g.,

spending long periods of time polishing a given

item). Jd. 58a.

However, the problem was far more serious

than the court described. By “custom,” there developed

a process of severe abuse by upperclassmen against

those considered “weak,” and it continued from year to

year. As many as 72 (or 25% of the incoming

students) left during their first year, primarily because

of the hazing. (District Court Hearing Transcript at

77).

The school recognized this was a serious

problem and initiated a study on what to do about it in

1995. The report noted that: “our high attrition rate and

low recruitment rate are directly related to the

proliferation of these traditional techniques which are

grounded in abuse and humiliation. All but two of the

hazing cases this year, and the majority of the major

violations of the fourth class system, were either

reported by parents or cadets who withdrew.” Jd.

(emphasis added).

Although “hazing” was prohibited by the blue

book, the custom of extreme hazing was so well-

established that it continued from generation to

generation because, as an official Citadel Report noted,

“The universal comment on the part of the

upperclassman who was punished [for hazing other

students] is that it was the way he was treated when he

was a knob, and he believes that this is the way it

should be.” Jd.

10

In addition, although under the blue book,

hazing is illegal and should be reported immediately, a

17-year old knob may not be able to distinguish

between a lawful but severe order and unlawful hazing.

The knobs were given a standard of “unquestioning

obedience” and felt they had to obey orders of all

upperclassmen (District Court Hearing at 46). The

Court below acknowledged this problem:

Plaintiff was aware that certain forms of harassment

were prohibited by official school policy. She was

aware that each of the actions now alleged falls

within the prohibited actions. She was aware of

her options to report improper actions and to refuse

to obey an unlawful order.

Nonetheless, there were potential negative

consequences to either behavior, of which plaintiff

was also aware. Refusal to obey an order could

only be undertaken at the risk of disciplinary action

in the event the ultimate authority concluded the

order was not improper. Given the uniqueness of

the system, the average freshman could be expected

to have some difficulty discerning the lawfulness of

many orders. Most or all of the alleged instances

of harassment still at issue in this action, however,

were known to plaintiff to be unlawful. ... .

Certainly reporting harassment or refusal to obey

questionable, if not clearly invalid, orders risked an

increase in pressure and punishment by

upperclassmen in general and the offending

upperclassman in particular. In a Fourth Class

~ System such as The Citadel's, which emphasizes

class unity, peer pressure is particularly significant

ulpin nish aateanite adeaaallal

:

11

and might also be negatively affected by failure to

“go along.” 85 F.Supp.2d at 618-19: 61a-62a.

The Abusive Treatment of Petitioner

Almost immediately after Petitioner arrived at

The Citadel in August, 1996, a campaign of

harassment and hostility began. Within one month of

Jeannie Mentavlos’ first day at the Citadel, a doctored

picture of Jeannie was being circulated on the internet

which depicted her as naked and with male genitalia.

The knowledge of the picture was widely known

throughout the Corps and the administration. Jeannie

reported the picture through the proper chain of

command and discussed the incident with the regimental

commander, Bryant Butler. He informed her that an

intense investigation was being conducted. However,

the culprit was never found.

Two of the individual cadets who were most

responsible for the physical assaults and offensive

behavior toward Ms. Mentavlos were Cadets James

Saleeby and John Justice Anderson, the two remaining

defendants in this matter. The Court of Appeals

described three specific incidents involving each

Respondent:

Anderson and Saleeby were each involved in three

alleged incidents of improper treatment of her

during 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

12

occasion, although Mentavlos did not interpret the

visit as being sexual 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.

249 F.3d at 309; 9a.

With respect to the other Respondent, Cadet Anderson,

the Court of Appeals noted:

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 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. 249 F.3d at 309; 9a.

Petitioner was required under the blue book

rules quoted above to obey the orders of upper class

cadets. 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.” reported the cardboard incident and the In

the face of this harassing 85 F.Supp.2d at 619; 62a-

63a. Petitioner reported the cardboard incident and the

boxer shorts incident soon after they occurred. The

commandant of the school rejected a recommendation

that serious penalties be imposed, the offense was

nossss ans RU ARR URAC icee ume nonom

Cees Se

13

downgraded to a minor offense and he was given a

minimal a punishment which was then suspended. After

Petitioner left the school in December, 1996 and a fuller

investigation was made, both cadets were disciplined

more severely, with Saleeby being suspended for one

year and Anderson resigned rather than face suspension.

The Court below noted: “Mentavlos did not voice any

other complaints until just before withdrawing 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 conducted thorough

investigations and imposed substantial punishments.”

249 F.3d at 309; 10a.

Procedural Background

Petitioner brought an action against The Citadel

under Title IX of the Educational Amendments of

1972 (20 U.S.C. §1681 er seq), and against various

individual defendants under 42 U.S.C. §1983

Subsequently, The Citadel and two of the cadets settled

with plaintiff One defendant defaulted and a damages

trial against him is still to be heard. The two remaining

non-settling cadets (Respondents Saleeby and

Anderson) then moved for summary judgment on the

grounds that they were not state actors. The district

court granted their motion for summary judgment

holding that they were not state actors. The Court

found:

The court, therefore, finds as to the state actor issue

that the alleged actions of defendants Saleeby and

Anderson fall clearly within the categories of

harassment that are expressly prohibited by the

Official written policy of the school. The court

14

further finds that the school's actual enforcement of

its official policies relating to the Fourth Class

System was adequate to preclude any finding that

the school endorsed or encouraged any contrary

informal policy. 85 F.Supp.2d at 620; 63a.

The district court found that the type of military

training afforded by the Citadel was not different from

military training in many other colleges in their

R.O.T.C. programs. The court found:

This court would not find the cadet defendants to be

state actors. Their actions may have been made

possible by the system established by the state, but

these cadets did not _ receive significant

encouragement and did not exercise the state's

coercive powers. Jd. at 626. 78a.

The Court of Appeals affirmed that finding in

an interlocutory appeal. * It applied the four part

standard established in the Circuit in Andrews v.

Federal Home Loan Bank, 998 F.2d 214 (4" Cir. 1993)

under which state action by a private party cannot be

found unless it fits under one of four categories: (1)

state coercion; (2) state delegation to a private party;

(3) exercise of powers traditionally the exclusive

prerogative of the state; (4) committing an

unconstitutional act in the course of enforcing a right

of a private citizen. “If the conduct does not fall into

> As the Court below explained, the order dismissing

the complaint against Anderson and Saleeby was not a

final judgment since a damages trial against one

defaulting cadet is yet to be heard. But all the

remaining claims have been disposed of. 249 F.3d at

307; 4a-Sa

5 a RRNN ieee:

15

one of these four categories, then the private conduct is

not an action of the state.” 998 F.2d at 217. In a

slightly different version endorsed in Haavistola v.

Community Fire Co. of Rising Sun, Inc. 6 F.3d 211,

215 (4th Cir.1993), state action can be found if there is

(1) state coercion; (2) close nexus between the state

and the action complained of; or (3) the exercise of

powers traditionally the exclusive prerogative of the

state.

Applying this standard, the Court of Appeals

\\\ ‘noted that the State of South Carolina did not “coerce”

the actions complained of, since the actions were

prohibited by Citadel regulations and the cadets were

later punished for engaging in them. Further, the Court

noted that there was no close nexus between the

Respondents actions and the state, since state

regulation and financing were insufficient to find the

actions attributable to the state. Although the blue

book gave upper class cadets power over the incoming

“knobs,” the power is “quite limited.” 249 F.3d at 320;

33a. The school did not encourage the actions in any

way, indeed punished them when they discovered what

had occurred.

The Court of Appeals also rejected the

argument that military training of students is not

“traditionally an exclusive state function.” It rejected

the analogy of The Citadel to the Virginia Military

Academy, where this Court held that mission of VMi

was to produce “citizen soldiers.” United States v.

Virginia, 518 U.S. at 541. The Court below stated that

“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

16

one of The Citadel's purposes was to train civilian

soldiers and its upperclass cadets were engaged in

serving that purpose, it would not be enough to

transform the individual students’ actions into state

action.” 249 F.3d at 316; 25a. It noted that many

colleges had R.O.T.C. programs that trained students

for the military and many secondary schools had a

military-type environment. It quoted the District Court

conclusion that “education and training based on a

military model are not historically an exclusive state

function.” 249 F.3d at 316; 25a.

REASONS FOR GRANTING THE WRIT

I. The Fourth Circuit Continued To Apply a

Rigid Test for State Action Explicitly Rejected

by this Court in Brentwood and This Court

Should Review the Holding Below to Insure that

Brentwood is Properly Applied by the Lower

Federal Courts

The Fourth Circuit below utilized a test for

state action which this Court specifically rejected in

Brentwood. It continued to rigidly apply a four or three

part test and rejected a finding of state action because

it found that the facts did not neatly fall within those

tests. But this Court in Brentwood established a

flexible, fact-specific approach to state action analysis.

The key question in every case is whether the actions

complained of are sufficiently “entwined” with

governmental power to invoke constitutional restraints

and requirements. State action will be found a private

party's actions are “entwined with governmental

policies’” or when government is ‘entwined in [the

party's] management or control,’” 121 S.Ct. at 930. But

17

there are no rigid categories to apply, as the Court of

Appeals did. “What is fairly attributable is a matter of

normative judgment, 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 condition across

the board for finding state action.” 121 S.Ct. at 930.

The question to be examined is whether there is

sufficient involvement of state institutions or sufficient

utilization of governmental power in the acts

complained of so that the private acts complained of

should be attributed to the State and the protections of

the Constitution invoked.

The so-called “public function” test or the

“close nexus test” or the “traditionally the exclusive

prerogative of the state” test, which the Court of

Appeals rigidly invoked, are not to be mechanically

applied. This Court explained: “These arguments [as to

the application of the other criteria] are beside the

point, simply because the facts justify a conclusion of

state action under the criterion of entwinement, a

conclusion in no sense unsettled merely because other

criteria of state action may not be satisfied by the same

facts.” 121 S.Ct. at 934 (emphasis added).

Even if the facts would not lead to a conclusion

of state action under any one of the other “tests,” state

action could still be found if state power or authority

was entwined with the acts at issue. “Facts that address

any of these criteria are significant, but no one

criterion must necessarily be applied. When, therefore,

the relevant facts show pervasive entwinement to the

point of largely overlapping identity, the implication of

state action is not affected by pointing out that the facts

18

might not loom large under a different test.” 121 S.Ct.

at 934.

There is no doubt that in this case there was

sufficient “entwinement” under the Brentwood rule so

that the actions complained of constitute state action.

In this case, there was “pervasive entwinement to the

point of largely overlapping identity.” The Citadel is

state-created, state-supported, state-financed, state-

operated and regulated, and the school performs an

important governmental function, namely creating

“citizen soldiers.” Congress has afforded special status

to The Citadel by passing special laws protecting its

privileged position in comparison to other schools run

on a military model or containing R.O.T.C programs.

Thus 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). 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

certain 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 service,

are otherwise qualified medically and physically, and

are recommended for such duty by their ROTC

professors of military science at the college, see 10

U.S.C.A. § 211 1a(e).

Furthermore, the very acts complained of in

this case were accomplished because of the invocation

NORA A 12803 Ouro sak

19

of power granted to Respondents by the State. This is

not a case where one student physically assaulted

another student in the barracks, and no aspect of state

power was involved. The only reason respondents

were able to inflict the injury that occurred was

because school regulations granted all upper class

cadets special disciplinary power over fourth class

“knobs” that required them to stand at attention and

obey the orders of any cadet above them in grade. Thus

when Respondent Saleeby had Ms. Mentavlos’

sweatshirt set on fire and she attempted to put out the

fire with her hands, he ordered her to stop doing so.

Saleeby told her that he did not give her permission to

move. Saleeby then directed another cadet to again set

fire to Petitioner’s clothes. This time, she did not

move. As the flames grew, Saleeby used his foot to

put out the fire. But for the power given to him by state

regulations, this incident could not have happened. See

85 F.Supp.2d at 612; 46a.

As this Court noted in Brentwood, the State’s

fingerprints are all over this case. “Entwinement will

support a conclusion that an ostensibly private

organization ought to be charged with a public

character and judged by constitutional standards;

entwinement to the degree shown here requires it.” 121

S.Ct. at 933. The Court below erred in applying a test

which this Court explicitly rejected in Brentwood, and

necessarily arrived at a wrong conclusion.

II. This Court Should Review The Lower Court’s

Holding that State Action Cannot be Found

Unless the State Authorized the Actions

Complained of.

Another serious error made by the Court below

20

was its holding that state action cannot be found since

the harassing physical actions taken against Petitioner

were not authorized by the state. “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

prohibited from engaging in any actions which could

be considered hazing or otherwise abusive of the

freshmen students.” 249 F.3d at 322; 37a. (emphasis

added). The Court further noted that: “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.” 249 F.3d at 322; 38a (emphasis added).

But the requirement that the actions

complained must have been ordered or authorized by

the State for state action to be found has been

consistently rejected by this Court since 1941. It is

well established that a person acts “under color of law”

if the person charged as a state actor exercised power

“possessed by virtue of state law and made possible

only because the wrongdoer is clothed with the

authority of the state.” see United States v. Classic,

313 U.S. 299, 326 (1941). See also Screws v. United

States, 325 U.S. 91 (1945) (sheriff acted "under color

of law" when he killed prisoner in his care even though

state law prohibited what he was doing; still utilizing

power granted by state); Monroe v. Pape, 365 US.

167, 171 (1961)(Section 1983 claim will lie against

“those who carry a badge of authority . . .whether they

act in accordance with their authority or misuse it.’’)

21

The Fourth Circuit repeated this error in

response to Respondents argument that students at a

school could never be considered state actors.

Petitioner pointed out that in recent school prayer

cases, students conducting prayer at football games

were held to be “state actors” in part because the

school authorities gave them authority to offer either a

religious or non-religious invocation or message at the

games. But this 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 were

endorsed and encouraged by the school district. See

Santa Fe Independent School District v. Doe, 530 U.S.

290 (2000). The Fourth Circuit commented that “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.” 249 F.3d at 323; 38a.

This Court held in numerous Section 1983

cases that under some circumstances, private parties

may be considered state actors. See cases cited in

Brentwood, 121 S.Ct. at 930-32. But this Court has

never held that state action requires a showing that a

private actor acted with the approval or authorization

of the State. Such a requirement would totally

undermine the concept of state action for private

entities or persons. By definition, state law does not

sanction or authorize unconstitutional action. Under

the Fourth Circuit’s theory, a prisoner could never rely

on Section 1983 to sue a private doctor who was

engaged by contract to treat state prisoners since the

22

state authorization that permitted him to act required

him to obey constitutional mandates. But this Court

came to the opposite conclusion in West v. Atkins, 487

U.S. 42 (1988).

If the state deputizes a non-law enforcement

individual to arrest a fugitive or a prison gives an

trustee inmate authority over other inmates and they

misuse that authority, there is no doubt state action

could be found. See e.g. Scott v. Vandiver, 476 F.2d

238 (4th Cir.1973)(deputized individuals sued under

Section 1983 for using excessive force); Wilkerson v.

Sarver, 72 F.R.D. 605 (E.D. Ark. 1976)(trustee guard

sued for shooting inmate). In these cases, the “state

actors” misused the authority given to them, yet a

Section 1983 claim would lie. This case presents

exactly the same situation.

III. The Court Below Erred in Holding that

Training Citizen Soldiers in a Strict Military

Environment is Not a Traditional State

Function

The Court of Appeals also rejected the

argument that the strict military training system in

’ force in The Citadel was insufficient to serve as a basis

for finding state action. The Court agreed that “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 Citadel, unlike the military service

academies, is not in the business of training soldiers

for military service.” 249 F.3d at 314; 21a. Its role is

more modest: “[Although] The Citadel utilizes a

military-style environment, its stated mission is ‘to

educate male undergraduates as members of the South

23

Carolina Corps of Cadets and to prepare them for post-

graduate positions of leadership.” Jd. It described The

Citadel system as similar to R.O.T.C. programs

throughout the country or to military-style secondary

schools.

The Court rejected the argument that the

special educational system in effect at The Citadel and

the special status afforded by Congress to the senior

military colleges as a result of the special training did

not change the analysis. Once again, it applied the

Circuit’s strict analysis of the state action test, noting:

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,” ... the “public

function test is so carefully confined” that it “has

been found in only narrow circumstances,” citing

Goldstein v. Chestnut Ridge Volunteer Fire Co.,

218 F.3d 337, 348 (4th Cir.2000) (internal quotation

marks omitted). See also DeBauche [v. Trani, 191

F.3d 499, 508 (4th Cir.1999)] 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 v. Kohn, 457 U.S. 830, 842

(1982); ... Consequently, it cannot fairly be said

that Congress, by affording a senior military college

and its cadets certain legislative benefits, delegated

a traditional, exclusive governmental function to

The Citadel or to its non- enlisted, non-military

student cadets. 249 F.3d at 317; 28a.

24

But this Court rejected this “narrow category”

analysis in Brentwood. And furthermore it no longer

speaks of activities that are the “exclusive prerogative

of the state.” In Brentwood, this Court noted that: “We

have treated a nominally private entity as a state actor

when it is controlled by an ‘agency of the State,’...

[or] when it has been delegated a public function by

the State,...” 121 S.Ct. at 930.

Lower courts have noted that among the

“public functions” that satisfy the state action test are

fire fighting, Goldstein v. Chestnut Ridge Volunteer

Fire Co., 218 F.3d 337 (4" Cir. 2000)(companies

obtained state funds and performed exclusive state

functions); operating a prison, see Plain v. Flicker, 645

F.Supp. 898, 907 (D.N.J. 1986)(“[I]f a state contracted

with a private corporation to run its prisons, it would

no doubt subject the private prison employees to §

1983 suits under the public function doctrine”);

Skelton v. Pri-Cor, Inc, 963 F.2d 100 (6th Cir.

1991)(private corporation operating prison was state

actor); or law enforcement, Scott v. Vandiver, 476

F.2d 238 (4th Cir.1973) (two county employees

deputized by a local sheriff could be “state actors” for

purposes of § 1983 where they misused the law

enforcement power granted by state law by utilizing

excessive force in trying to arrest an innocent person.

It would appear that training persons for the

military should fall in the same category. The type of

military training adopted at The Citadel and the special

status afforded the institution by Congress places it in a

unique status, similar to the service academies, and

thus subject to Constitutional constraints.

25

That was the assumption made by the Fifth

Circuit in the only reported case discussing the special

status of the “senior military colleges” and the state

action doctrine. Alton v. Texas A&M University, 168

F.3d 196, 199 5" Cir. 1999). It noted with respect to

the cadet defendants:

Neither side disputes that the defendant

officials are state actors. The student cadet leaders

of the Corps are vested with authority over the less

senior cadets and serve as a link in the chain of

command between a freshman, like Alton, and the

officials who oversee the Corps. Considering this

authority and the unique paramilitary structure of

the A & M Corps of Cadets, the student cadet

leaders in this particular situation were arguably

acting under color of state law. We will assume so,

although we need not pause to decide this point,

given our ready disposition of the appeal on

grounds we will explain. (emphasis added).

i This is also the conclusion of law review

comment on this issue.

The private schools’ provision of both

education and military training should qualify them

as state actors. Training individuals to protect

America domestically and abroad is one of the

government's most important and _ essential

functions. Although courts have not considered

whether military training is a public function, courts

have found the private performance of military and

public protection functions to be state action.

Therefore, private military schools which provide

military training are performing a public function.

:

i

%

:

4

i

:

|

q

‘

26

Marcia Berman “An Equal Protection Analysis of

Public and Private all Male Military Schools,” 1991

Univ. of Chic. Legal Forum 211, 228, 229 (1991).

IV. This Court Should Review the District Court’s

Conclusion That There Was No Gender

Motivated Harassment by Cadet Saleeby

On summary judgment, the District Court

found sufficient evidence to uphold an equal protection

claim against Cadet Anderson, but found insufficient

evidence to uphold the equal protection claim against

Cadet Saleeby. The Fourth Circuit never reached that —

issue. See 249 F.3d at 323, fn 8; 40a.

The courts have held that the harassing

treatment of a female by a state actor is an equal

protection violation if motivated by an intent to injure

or annoy her because of her gender. Even if actions

taken by state official standing alone did not deprive a

citizen of constitutionally-protected due process rights,

if the actions are undertaken with a discriminatory

purpose to injure a person because of some class-based

characteristic, an equal protection violation will be

found.

However, it is undisputed that the fire incident

involved setting Cadet Saleeby setting fire to Ms.

Mentavlos at her waist, close to her breasts,

presumably so that her undergarments would show

through. When she tried to put out the fire with her

hands, he ordered her not to do so. It is difficult to find

no gender-based discrimination by such action,

certainly not on a motion for summary judgment. This

Court should review that finding.

ale

27

CONCLUSION

For the reasons stated above, a writ of certiorari

; should be granted to review the decision and judgment

: of the Fourth Circuit.

Dated: August 1, 2001

Leon Friedman

148 East 78" Street

New York, N.Y. 10021

(212) 737-0400

Counsel of Record

Richard A. Harpootlian

Federal I.D. No. #1730

1410 Laurel Street

Columbia S.C. 29202

(803) 252-4848

Attorneys for Petitioner

Stel PLLA Ap SOPRA AR heb PLEAD Sed at he

la

APPENDIX A

United States Court of Appeals,

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

The Board of Visitors of the Citadel, The Military

College of South Carolina;

Richard Ellis, Captain; Nicholas Belcher; Eric

Amhaus; Edward Bohm,

Defendants,

No. 00-1331.

Argued Jan. 25, 2001.

Decided May 7, 2001.

Affirmed.

Before WILLIAMS and TRAXLER, Circuit Judges,

and RAYMOND A. JACKSON, United States District

Judge for the Eastern District of Virginia, sitting by

designation.

OPINION

TRAXLER, Circuit Judge:

Today we consider the novel question of whether two

2a

male cadets at The Citadel, a state-supported and

formerly all-male military college 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 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 decision in United States

v. Virginia, 518 U.S. 515, 116 $.Ct. 2264, 135 L.Ed.2d

735 (1996) (holding that a similar, unconstitutional

male-only admissions policy at Virginia Military

Institute could not be remedied with a parallel women's

- program 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). [FN1]

FNL. Faulkner, the first female admitted to The

Citadel Corps of Cadets, joined the Corps on

August 12, 1995, by virtue of court order, but

withdrew because of illness on August 18,

1995. See United States v. Jones, 136 F.3d

342, 345 (4th Cir. 1998).

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 contends

that during those four months the commanding

administrative officer and several upperclass cadets

assigned to Echo Company successfully 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 discipline." 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 Company, 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. §

4a

1983 and 42 U.S.C.A. § 1985 (West 1994), and that

The Citadel and The Board of Visitors violated 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 certified the case

as one appropriate for immediate appeal under 28

U.S.C.A. § _1292(b) (West 1993). [FN2] We

Pre wr

5a

consented to hear the appeal.

FN2. Because one cadet had defaulted, a

damages hearing was still pending against him.

Il.

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 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. However, 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 college, The Citadel offers a

6a ; -

unique educational experience to its students.

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 military 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

upperclassman enters their barracks or speaks to

them. Freshmen are allowed only very limited,

formal responses to upperclassmen: "yes Sir;" "no

Sir;" "no excuse, Sir;" and "request permission 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 attention. Freshmen are prohibited from

using a number of common areas. The freshmen are

required to spend time in drill and in performing

company details such as cleaning the 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.

Mentavios, 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,

th isd ht aaa OORT Je

OO ON yi NAT ANKE HAT Tabi er 200.

Ta

[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 officers 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

functioning 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

implementation of the fourth class system and the

ultimate responsibility for enforcement of the fourth

class system rests with The Citadel Commandant, 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 penalties, and may recommend a

punishment for certain other "Class II" offenses. [FN3]

But, with the exception of the most minor Class Ill

infractions, the ultimate ‘responsibility —_for

administering the disciplinary system and imposing

punishment rests with the Commandant or Assistant

Commandant.

FN3. By way of example, Class Ill offenses

—

8a

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).

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

procedure 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 prohibited.

"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

service 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 specific

area(s) that will be touched." Supp. J.A. 414. Even

then, touching 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 Mentavlos,

oO th etna a HI,

9a

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 during

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

sexual 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. Mentavilos, 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 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." Jd at 619. And, the district court found

that it was not uncommon in this military-type

environment for mild harassment to take place, "either

10a

verbally or by requiring the freshmen to engage in an

activity not of the freshman's choosing (e.g., spending

long periods of time polishing a given item)." Jd. 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." Jd. 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. Jd.

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, Mentavlos

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. Mentavlos did

not voice any other complaints until just before

withdrawing 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

conducted 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

commandant'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 punished or adequately

addressed when brought to the school's attention" and

lla

~

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." Jd.

II.

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

color of any statute, ordinance, regulation, custom, or

usage, of any State ... subjects, 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 "deprived [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, 90 S.Ct. 1598, 26 L.Ed.2d 142 (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, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (quoting

Blum v. Yaretsky, 457 U.S. 991, 1002, 102 S.Ct. 2777,

73_L.Ed.2d 534 (1982)); see Rendell-Baker v. Kohn,

457 U.S. 830, 838, 102 S.Ct. 2764, 73 L.Ed.2d 418

(1982) (holding that § 1983's requirement that a

12a

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, 102 S.Ct.

2744, 73 L.Ed.2d 482 (1982) (quoting Flagg Bros.

Inc. v. Brooks, 436 U.S. 149, 156, 98 S.Ct. 1729, 56

L.Ed.2d 185 (1978)). "This fundamental limitation

on the scope of constitutional guarantees ‘preserves

an area of individual freedom by limiting the reach

of federal law' and ‘avoids imposing on the State, its

agencies or officials, responsibility for conduct for

which they cannot fairly be blamed.'" Edmonson v.

Leesville Concrete Co., 500 U.S. 614, 619, 111 S.Ct.

2077. 114 L.Ed.2d 660 (1991) (quoting Lugar, 457

U.S. at 936-37, 102 S.Ct. 2744).

Dowe_y. 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 vy. Tennessee Secondary Sch.

Athletic Ass'n, 531 U.S. 288, 121 S.Ct. 924, 930, 148

L.Ed.2d 807 (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.' " Jd (quoting Jackson_v.

Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct.

449, 42 L.Ed.2d 477 (1974)); American Mfrs., 526

U.S. at 50, 119 S.Ct. 977 when applying § 1983 toa

13a

private actor, " 'the party charged with the deprivation

must be a person witu may Mainly’ be sal te he 2 state

actor.' " (quoting Lugar _v. Edmondson Oil Co., 457

U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482

(1982)).

A determination of "whether [a private party's]

allegedly unconstitutional conduct is fairly attributable

to the State," American Mfrs., 526 U.S. at 50, 119 S.Ct.

977, requires us to "begin[ ] by identifying 'the specific

conduct of which the plaintiff complains,’ " id_at 51,

119 S.Ct. 977 (quoting Blum, 457 U.S. at 1004, 102

S.Ct. 2777). The inquiry is "necessarily fact-bound."

Lugar, 457 U.S. at 939, 102 S.Ct. 2744.

What is fairly attributable is a matter of normative

judgment, 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 condition 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, 531 U.S. 288, 121 S.Ct. at 930: see e also

Burton v. Wilmington Parking Auth., 365 U.S. 715,

722, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961) (noting that it

is an " ‘impossible task' " to "fashion and apply a

precise formula for recognition of state 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

l4a

fairly be attributed to the State" for purposes of § 1983

liability have been clearly delineated by precedent.

Blum, 457 U.S. at 1004, 102 S.Ct. 2777. 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,

119 S.Ct. 977 (quoting Blum, 457 U.S. at 1004, 102

S.Ct. 2777); see also Brentwood, 531 U.S. 288, 121

S.Ct. at 930. And, "the required nexus may be present

if the private entity has exercised powers that are

‘traditionally the exclusive prerogative of the State.' "

Blum, 457 U.S. at 1005, 102 S.Ct. 2777 (quoting

Jackson, 419 U.S. at 353, 95 S.Ct. 449); see also

American _Mfrs., 526 U.S. at 55, 119 S.Ct. 977;

Brentwood, 531 U.S. 288, 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, 108

S.Ct. 2250, 101 L.Ed.2d 40 (1988)); Edmonson_vy.

Leesville Concrete Co., 500 U.S. 614, 627-28, 111

S.Ct. 2077, 114 L.Ed.2d 660 (1991)); Goldstein, 218

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

that the State has empowered, or is permitting, a

private actor to homestead 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, 531 U.S. 288, 121 S.Ct. at 930

Pee ee Oe ee

abet ai Sanat te —

lSa

(quoting Lugar, 457 U.S. at 941, 102 S.Ct. 2744), 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, 77 S.Ct. 806, 1

L.Ed.2d 792 (1957)) (per curiam) (holding that state

agency acting 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, 86 S.Ct. 486,

15 L.Ed.2d 373 (1966) (holding that park established

for the use of only white persons by a private trust

must be treated as 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 management or control of a private entity. See

Brentwood, 531 U.S. 288, 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 association."); Lebron v.

National R.R. Passenger Corp., 513 U.S. 374, 400,

115 S.Ct. 961, 130 L.Ed.2d 902 (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. 86 S.Ct. 486 ("[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

16a

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, 531 U.S. 288, 121 S.Ct.

at 934: see Polk County v. Dodson, 454 U.S. 312, 323

n. 13, 102 S.Ct. 445, 70 L.Ed.2d 509 (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 adversary").

IV.

On appea!, Mentavlos contends that the district court

erred in concluding 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 challenged 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 governmental function, and (2) the cadets

were acting pursuant to the disciplinary authority

bestowed upon them by the rules, regulations, and

customs of The Citadel, which receives substantial

assistance, primarily 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

17a

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. [FN4]

FN4. 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.

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, 115 S.Ct. 961

(quoting Edmonson, 500 U.S. at 632, 111 $.Ct. 2077

(O'Connor, J., dissenting)), 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, 81 S.Ct. 856; 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)).

18a

When determining whether challenged conduct is

"fairly attributable" to the State, this court has, from

precedents existing at the pertinent 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 identified four circumstances under

which the Supreme Court had held that 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, 529 U.S. 1033, 120

S.Ct. 1451, 146 L.Ed.2d 337 (2000). -

In Haavistola, another panel of this court summarized

three situations in which conduct by a private entity

could be fairly attributable to the state: (1) when a

sufficiently close nexus exists between a regulated

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

private 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).

TOMBS LAG Slt iste Pied

IL WE SE 2S

;

Sa YO ee i NE th et nad ABE Dipti, Alba

19a

Most recently, in Goldstein, we emphasized the fact-

based nature of the state action inquiry, reiterating that

"the state action determination 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 authority"; (2) "the extent and nature of

public assistance and public benefits accorded the

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

governmental 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." Jd. at 343

(internal quotation marks omitted). Like _ its

predecessors in this circuit, however, the Goldstein

decision summarized 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. 102

S.Ct. 2777, see Haavistola, 6 F.3d at 215, which is still

relied upon by the Court today, see Brentwood, 531

U.S. 288, 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 factors which have been described by the Supreme -

Court in prior precedents and which are pertinent to the

circumstances of this case. Thus, we turn to the

20a

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, 531 U.S. 288, 121 S.Ct.

at_930 (quoting Jackson, 419 U.S. at 351, 95 S.Ct:

449).

B.

We begin with Mentavlos' claim that the actions of

The Citadel cadets were taken "under color of" state

law because the State has delegated to The Citadel and

its Corps of Cadets " 'powers traditionally exclusively

reserved to the State.'" See American Mfrs., 526 U.S.

at 55, 119 $.Ct. 977 (quoting Jackson, 419 U.S. at 352,

95 S.Ct. 449). Specifically, Mentavlos asserts that The

Citadel is in the business of serving the traditional

governmental function of training civilians for the ~

military in a rigorous military 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 military" for purposes of the Feres doctrine,

see Feres v. United States, 340 U.S. 135, 146, 71 S.Ct.

153, 95 L.Ed. 152 (1950) (holding that military

personnel may not bring suit under the FTCA for

injuries sustained in the course of military 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 Academy), 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.

2la

Like the district court, we find Mentavlos’ proffered

analogy to military service academies and their cadets

to be untenable. We recognize that "[o]ne of the

paradigmatic means by which a private party becomes

subject to section 1983 is through the government's

conferral 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 Citadel, 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 environment." 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, 102 S.Ct. 2764 (holding that education of

maladjusted high school students, while a public

function, is not one traditionally reserved to the states);

Arlosoroff, 746 F.2d at 1021 (holding that the

regulation of intercollegiate athletics is not a function

traditionally, 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

22a

environment fairly compel the conclusion that The

Citadel has been delegated the sovereign function ot

training young men and women for the military. As

part of its curriculum, The Citadel requires its Corps of

Cadets students 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 campuses, 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 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 college, 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

23a

Corps of Cadets enters military service upon

graduation. Furthermore, none of the cadets involved

here (Mentavlos, Anderson, or Saleeby) held ROTC

contracts. Consequently, we are not persuaded that

The Citadel is analogous 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. [FN5]

FNS. Mentavlos' reliance upon Dobyns v. E-

Systems, Inc., 667 F.2d 1219 (Sth Cir.1982),

does not counsel a different conclusion. In

Dobyns, a private 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

military protection, nor have the functions of

military protection or military training been

- delegated to them by the state or federal

governments.

For similar reasons, Mentavlos' reliance upon

application of the eres 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 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

24a

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 contrary

result. [FN6]

FN6. Mentavlos' reliance upon Alton v. Texas A

& M University, 168 F.3d 196, 199-200 (Sth

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.

Finally, Mentavlos' reliance upon United States _v.

Virginia, 518 U.S. 515, 116 $.Ct. 2264, 135 L.Ed.2d

735 (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." /d_ at 541, 116 S.Ct.

2264. 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 soldiers and its upperclass cadets were

25a

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 academies 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 leadership

training." Mentavios, 85 F.Supp.2d_ at 623.

Consequently, the district court observed that,

[uJnder [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 component 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.

26a

Mentavlos also attempts to equate The Citadel to the

military service academies because The Citadel and its

cadets are entitled to certain 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. §

211 1a(f). [FN7] 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 certain 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 upes graduation if they

desire such service, are otherwise qualified medically

and physically, and are recommended for such duty by

their ROTC professors of military science at the

college, see 10 U.S.C.A. § 211 la(e). South Carolina

also 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

personnel 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).

FN7. The six Senior Military Colleges are

Texas A & M University, Norwich University,

_ The Virginia Military Institute, The Citadel,

Virginia Polytechnic Institute and State

27a

University, and North Georgia College and

State University. See 10 U.S.C.A. § 211 1a(f)

(West 1998).

Mentavlos claims that because the United States

Congress has recognized 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 administration 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 recognition 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, 95

S.Ct. 449, 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

28a

State." Rendeli-Baker, 457 U.S. at 842, 102 S.Ct. 2764

(internal quotation marks omitted); see also Jackson

419 U.S. at 353, 95 S.Ct. 449; Haavistola, 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,

119 S.Ct. 977 (quoting San Francisco Arts & Athletics,

Inc. v. United States Olympic Committee, 483 U.S.

522, 544, 107 S.Ct. 2971, 97 L.Ed.2d 427 (1987)).

Consequently, it cannot fairly be said that Congress, by

affording a senior military college and its cadets

certain legislative 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, exclusive

governmental function test, "[a]nother factor relevant

to the state action determination is how the state itself

views the entity." Goldstein, 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

DPhil te 0 Rs LD hee 4 Dhow

ee

29a

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.

..

Mentavlos next contends that the actions of Anderson

and Saleeby are "fairly attributable to the State," and

therefore should be considered 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, 119 S.Ct. 977 (internal quotation marks omitted);

see Brentwood, 531 U.S. 288, 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

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, 119 S.Ct. 977

(quoting Blum, 457 U.S. at 1004, 102 S.Ct. 2777).

Action which is taken by private persons "with the

mere approval or acquiescence of the State" is not

sufficient to justify a holding that the action is state

action. American Mfrs., 526 U.S. at 52, 119 S.Ct. 977:

see also Flagg Bros. v. Brooks, 436 U.S. 149, 164, 98

S.Ct. 1729, 56 L.Ed.2d 185 (1978) ("This Court ... has

30a

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 Executives Ass'n, 489 U.S. 602, 615, 109 S.Ct.

1402, 103 L.Ed.2d 639 (1989)). Rather, we look for

"indices of the Government's encouragement,

endorsement, and participation" in the challenged

actions. Skinner, 489 U.S. at 615-16, 109 S.Ct. 1402.

The district court found that Mentavlos failed to make

this showing, noting that while the actions of Anderson

and Saleeby "may have been made possible by the

system established by the state," the "cadets did not

receive significant encouragement and did not exercise

the state's coercive powers" in so acting. Mentavios,

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 powers

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 universities in

South Carolina); $.C.Code Ann. § § 59-121-10 to 450

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

the operation 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

pa el hae Aiken 8b Nom Nat tai ne ee

a ee ae

3la

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, 102 S.Ct. 2764

(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 1011. 102 S.Ct. 2777 (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); $.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, financial or

otherwise, which was provided to the students of The

32a

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.

y

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. Specifically, Mentavlos claims

that upperclass cadets at The Citadel, by virtue of the

Cadet Regulations (i.e., the Blue Book) and the

customs at the school, were given broad power or

authority to punish freshmen "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 considered 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 regulation does not by itself convert its

action into that of the State," Blum, 457 U.S. at 1004,

102 S.Ct. 2777 (quoting Jackson, 419 U.S. at 350, 95

S.Ct. 449). And, "state regulation unrelated to the

alleged constitutional violation, even if extensive, is

not sufficient, in itself," to transform private action into

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

3

a

.

‘

‘

4

>

i

3

¥

4

33a

In this case, contrary to Mentavlos' characterization,

the Blue Book does not grant to upperclass cadets

broad power or authority to discipline 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 treatment, 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 Citadel 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 violations of the fourth class system,

including violations of the prohibition against abusive

or discriminatory treatment. Indeed, the abuses

Mentavlos reported were punished when brought to the

attention of The Citadel administration and were not

taken lightly.

Consequently, upperclass Citadel cadets have some

limited measure of authority over freshmen cadets like

Mentavlos by virtue of the unique fourth class system

created and sanctioned by The Citadel and The Citadel

—_—

34a

administration has tolerated the not uncommon

military-type practice of upperclassmen mildly

harassing freshmen either verbally 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 system and, in fact, endeavored to

discourage abuses of the type alleged by" Mentavlos.

Mentavios, 85 F.Supp.2d at 619. Additionally,

Mentavlos presented no contrary evidence that any

member of The Citadel administration, faculty, or staff

ever encouraged, endorsed, participated 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 complainfed], that is, the

physical child abuse itself ... [,] exercised no coercive

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

"encourage them" in any way. /d.; 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

PDL nti AA ithe Dy Seas BEDI DN a ee BEF ee ME eal STINE

i tebe ens Sep Went a dy

35a

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.

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, 61 S.Ct.

1031, 85 L.Ed. 1368 (1941); Ex parte Virginia, 100

U.S. 339, 346-47, 25 L.Ed. 676 (1900). 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 considered to be action taken "under

color of" state law. Classic, 313 U.S. at 326, 61 S.Ct.

1031 (finding that state election officials acted "under

color of" state law when they failed to count votes as

cast, altered ballots, and falsified certification of the

votes); see also Screws v. United States, 325 U.S. 91,

107, 65 S.Ct. 1031, 89 L.Ed. 1495 (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

36a

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

misused 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 employees 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." Jd. at 241.

In contrast to the county employees in Scott, who had

been designated law enforcement officials at the time

they engaged in the challenged 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 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.

37a

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 colleges, but the concept of student self-

governance at public and private institutions of higher

education, including the use of honor codes and the

limiteddelegation 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 student

editor's decision not to publish an ad in the school

yearbook was not state action); Jndorato v. Patton.

994 F.Supp. 300 (E.D.Pa.1998) (holding that state

university football player who struck a referee during a

sanctioned football game was not state actor).

Instead, we are called upon to decide whether the

State has encouraged 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 prohibited from

engaging in any actions which could be considered

hazing 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

38a

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

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, 531 U.S. 288, 121

S.Ct. at_930; American Mfrs., 526 U.S. at 50, 119

S.Ct. 977; cf Lugar, 457 U.S. at 940, 102 S.Ct. 2744

(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 Independent School District v. Doe, 530 U.S.

290. 120 S.Ct. 2266. 147 L.Ed.2d 295 (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

39a

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 inVocation 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 significance, were

explicitly and implicitly endorsed and encouraged by

the school district. See id_at 2275-77, 120 S.Ct. 2266.

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"

be considered attributable to the State for purposes of §

1983. Accordingly, 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.

40a

For the foregoing reasons, we agree with the district

court's determination 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 summary judgment

to them. [FN8]

~~ ~FN8>-Beeause-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 evidence that he acted with improper

gender animus.

AFFIRMED.

END OF DOCUMENT

pte ‘seastaiacinaiaeaae

4la

APPENDIX B

United States District Court,

D. South Carolina,

Columbia Division.

Jeanie MENTAVLOS, Plaintiff,

Vv

John Justice ANDERSON; and James Saleeby,

Defendants.

No. CA 3:97-2718-17.

Feb. 15, 2000.

ORDER ON MOTIONS FOR SUMMARY

JUDGMENT

JOSEPH F. ANDERSON, Jr., District Judge.

This matter is before the court on motion of defendants

John Justice Anderson and James Saleeby for summary

judgment and, with consent of all parties, for

determination by the court of any factual issues relating to

whether these defendants are state actors. The state actor

inquiry is critical to any determination of liability under

plaintiff's sole remaining claim, which is asserted under

42 U.S.C. § 1983, as to the moving defendants.

Plaintiff alleges that defendants Saleeby and Anderson

violated plaintiff's constitutional rights to equal protection

under the Fourteenth Amendment by taking actions

against plaintiff with the intent and to the effect of

depriving her of equal access to educational opportunities

at a state college. To support this claim, plaintiff must

demonstrate, inter alia, that these defendants were "state

42a

actors" for purposes of imposing liability under 42 U.S.C.

§ 1983. This critical threshold issue presents a novel

question.

The facts relevant to the state actor issue are largely

undisputed. However, to the extent factual issues are

presented, the parties have consented to resolution of the

factual questions by this court. Milburn by Milburn _v

Anne Arundel County DSS, 871 F.2d 474, 476 (4th Cir.),

cert. denied, 493 U.S. 850, 110 S.Ct. 148, 107 L.Ed.2d

106 (1989) (state actor determination "depends on the

facts of the case, as it must in each instance"). This order

also confirms earlier oral rulings on these defendants’

motions for summary judgment and provides further

rulings on matters held under advisement.

BACKGROUND

This action is pursued by Jeanie Mentavlos, who was one

of the first female students at The Citadel, a state

supported institution of higher education in South

Carolina. [FN1] Plaintiff initially alleged that a number

of cadets and one army officer assigned to the school

conspired to harass plaintiff and drive her from the school

because of her gender. Plaintiff asserted claims against

the individual defendants under both 42 U.S.C. § 1983

and 42 U.S.C. § 1985.

FN1. Plaintiff entered The Citadel in the fall of

1996 along with three other female students. A

female student had entered the prior fall, but

remained at the school only a brief time.

The original complaint also alleged that The Citadel was

liable for the collective acts of harassment by faculty and

Sk ON 80 -Dltrene.

ee et lr Me el ts Reet OE ed Oo

43a

students under Title IX of the Education Amendments of

1972, 20 U.S.C § 1681, et seg. In her Title IX claim.

plaintiff asserted that the institution had actual knowledge

of severe and pervasive gender-based harassment. but

failed to adequately respond. Plaintiff alleged that the

harassment she suffered was of a kind and degree more

severe than inflicted on similarly situated male cadets and

that this increased harassment ultimately forced her to

withdraw from the school.

The case proceeded through extensive discovery. All

defendants except for one defendant who is in default.

Edward Bohm, moved for summary judgment as to all

claims. These motions were fully briefed and argued.

The court requested and received supplemental briefing to

help clarify which allegations related to which parties.

The court then heard supplemental arguments and made

oral rulings as to a number of claims. The remaining

allegations were taken under advisement.

In the course of hearing argument on the motions for

summary judgment, the court allowed plaintiff to amend

her complaint to allege that the individual cadet

defendants were themselves state actors for purposes of

imposing Section 1983 _ liability. Prior to. that

amendment, plaintiff's state actor allegations depended on

proof that the cadet defendants acted in concert with one

or more members of the college's faculty or staff,

including a member of the armed services temporarily

assigned to the college.

All claims except those asserted against defendants John

Justice Anderson, James Saleeby, and Edward Bohm

were resolved by settlement prior to any final ruling on

the summary judgment motions._[FN2] The claims

against defendant Bohm are not at issue here as he is in

44a

default.

FN2. At the time of settlement, this court had

orally granted various defendants’ motions for

summary judgment as to certain claims, denied the

motions as to certain claims, and still held a

number of issues under advisement. The

settlement, necessarily, mooted this court's prior

rulings as to any settling defendants and the

remainder of the motions held under advisement.

The remaining claims against the remaining defendants

were set for trial and a jury was selected. On plaintiff's

motion and over defendants’ objections, the court

subsequently dismissed the jury so that the newly-raised

state actor theory could first be addressed. The decision

to release the jury rested, in part, on all parties’ consent to

this court's resolution of any underlying factual questions

on the state actor issue.

During, or shortly prior to, the hearing on the state actor

issue, plaintiff withdrew her allegations under Section

1985, her allegations of violation of due process under

Section 1983, and her claims of a Section 1983

conspiracy. Therefore, the only claims remaining against

defendants Anderson and Saleeby are based on Section

1983 and allege violation of plaintiff's Fourteenth

Amendment right to equal protection of the laws.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate "if the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with affidavits, if any, show that there is no

.

;

|

’

|

45a

genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law."

Fed.R.Civ.P._56(c). It is well established that summary

judgment should be granted "only when it is clear that

there is no dispute concerning either the facts of the

controversy or the inferences to be drawn from those

facts." Pulliam Inv. Co. v. Cameo Properties, 810 F.2d

1282, 1286 (4th Cir.1987).

The party moving for summary judgment has the burden

of showing the absence of a genuine issue of material

fact, and the court must view the evidence before it and

the inferences to be drawn therefrom in the light most

favorable to the nonmoving party. United States _y.

Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d

176 (1962). When the defendant is the moving party and

the plaintiff has the ultimate burden of proof on an issue,

the defendant must identify the parts of the record that

demonstrate the plaintiff lacks sufficient evidence. The

nonmoving party, here the plaintiff, must then go beyond

the pleadings and designate "specific facts showing that

there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see

also Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct.

2548, 91 L.Ed.2d 265 (1986). ,

A party "cannot create a genuine issue of material fact

through mere speculation or the building of one inference

upon another." Beale v. Hardy, 769 F.2d 213, 214 (4th

Cir.t985). Therefore, "[m]Jere unsupported speculation ...

is not enough to defeat a summary judgment motion."

Ennis v. National Ass'n of Business & Educational Radio,

Inc., 53 F.3d 55, 62 (4th Cir.1995).

FACTS REGARDING LIABILITY

While defendants concede that some of the interactions

46a

between the parties occurred, there are significant

differences as to the details of the events. However,

because this matter is before the court on these

defendants' motion for summary judgment, the court must

view the record in the light most favorable to the plaintiff.

[FN3]

FN3. Unlike that portion of this order that (by

consent) resolves disputed facts as to the state

actor issue, the recitation of facts in this section

regarding potentially liability-producing events is

taken in the light most favorable to the plaintiff.

Some of these events are hotly disputed by the

defendants.

Plaintiff has produced evidence which, if believed, would

show that Cadet Saleeby was involved in three instances

of harassment or improper treatment of plaintiff:

1. The Fire Incident--Saleeby, together with Bohm,

came into plaintiffs room in October 1996 and lit

plaintiffs clothing on fire. The fire was first lit by

Bohm. Plaintiff promptly put out the fire using her

hands. After Saleeby commented that plaintiff did not

have permission to move, Saleeby then directed Bohm

to again set fire to plaintiff's clothes. Bohm did so.

This time, plaintiff did not move. As the flames grew,

defendant Saleeby used his foot to put out the fire.

Plaintiff described the action of putting out the fire as

kicking or brushing her with his foot. The kicks were

apparently to plaintiffs waist area.[FN4] The force

was adequate to knock plaintiff back, but not to knock

her down or leave bruises. The fire did not cause any

burns to plaintiff, but did burn a hole about the size of a

tennis ball in her sweatshirt.

ee eee

47a

FN4. The fire was set to the pouch pocket on the

front of plaintiffs sweatshirt. | This pocket is

located at or near the waist. Plaintiff has testified

that this "kicking action" was used to put out the

fire, although plaintiff felt Saleeby used more

force than necessary for this purpose. Prior to

plaintiff's disallowed affidavit that was submitted

after jury selection (infra n. 7), there was no

suggestion that the kick was to any area other than

the stomach, hip or waist, as testified by another

female cadet present during the incident.

Plaintiff's own testimony regarding a kick to the

waist area may, however, relate to another

incident.

2. The Kicking Incidents--On one or more later

occasions, defendant Saleeby kicked plaintiff in the

legs. At least once, he did so after saying that plaintiff

"likes to be kicked." None of these incidents left

bruises on the plaintiff. ~

3. The Shorts Incident--On one occasion fairly early in

the school year, cadet Saleeby entered plaintiff's room

wearing only non-uniform shorts and shower-type

shoes. He did not have on a shirt. Plaintiff believed at

the time that the shorts were boxer shorts (underwear)

and she felt uncomfortable, although she did not believe

that anything about the visit was sexual in nature.

Defendant Saleeby subsequently produced an affidavit

and photograph demonstrating that the shorts were gym

shorts, rather than boxer shorts (underwear). Plaintiff

has offered no contrary evidence of the actual nature of

the shorts, as opposed to her perception at the time.

[FN5]

48a

FNS. In her deposition in this ection, plaintiff was

asked whether Saleeby had on underwear beneath

the shorts at issue. Plaintiff replied: "I don't

kiiow whether he did or not. I just saw what

appeared to be boxer shorts or shorts with no shirt

and no shoes." Pitf depos (December 1998) at

174 (emphasis added).

At a hearing set for oral ruling on the motion for

summary judgment, plaintiff withdrew any claims that

Saleeby should be held liable for events involving a

second fire or making plaintiff sit on an upturned trash

can (the so-called "naughty knob bucket" routine) [FN6]

for an extended period of time. Both of these events

involved cadet Bohm. There was no evidence offered to

connect Saleeby to these events. There are no other

viable claims against defendant Saleeby. [FN7]

FN6. Freshman at The Citadel are referred to as

"knobs."

FN7. After the oral ruling on summary judgment,

and on the eve of a final pretrial hearing relating to

the state actor issue, plaintiff submitted an

affidavit that included some additional allegations -

relating to cadet Saleeby that were not previously

presented to the court. For reasons set forth in its

order on Motion to Strike Affidavit (entered

December 14, 1999), this court rejected any new

allegations contained in this affidavit, except as

: they related to the state actor issue.

49a

Plaintiff has produced evidence which, if believed, would

show that Cadet Anderson was involved in three different

instances of harassment or improper treatment of plaintiff:

| 1. The Cardboard Incident--Early in the school year,

| when correcting plaintiff for smiling when she was at

| attention, Anderson took plaintiff into another room and

shut the door with only the two of them present.

Anderson began ranting and raving at plaintiff, pushing

cardboard into her face and chin. The incident left

welts under plaintiff's chin that lasted for one or two

days. During the incident, Anderson made crudely

worded comments to the effect that he had been sloppy

when he first came to The Citadel, but the experience

whipped him into shape quickly and could do the same

| for plaintiff. [FN8] He also stated that even though his

| parents had taught him "not to hit girls," he would make

an exception for plaintiff.

FN8. Plaintiff characterized the comments very

differently in her most recent affidavit, which this

court rejected as discussed in its order on Motion

to Strike Affidavit. Supra note 7.

2. The Thanksgiving Drinking Incident--Cadet

Anderson was involved in an incident in which plaintiff

‘ was disciplined by upperclassmen for coming in drunk

just before the Thanksgiving break. Anderson's

involvement was limited to stopping plaintiff and a

female classmate and sending them to the company

commander's room. Plaintiff alleges that this limited

involvement is actionable because Anderson treated the

; two female cadets differently than two male classmates

based on gender differences rather than on differences

in behavior. Plaintiff's testimony has varied as to the

50a

details of this incident, and it is not clear from the

record whether plaintiff was with the male cadets when

she was stopped or whether the circumstances differed

between them such that, even if the four freshmen were

together, Anderson had no reason to stop the males.

3. The Threats of Physical Violence--Anderson made

threatening statements to plaintiff at various times,

including statements that he would physically harm or

kill plaintiff or her brother, who was an upperclass cadet

at The Citadel.

In addition to the above allegations, plaintiff had

alleged that Anderson went into plaintiffs room with

other upperclassmen when plaintiff was not present,

opened her underwear drawer, and made comments

regarding the relative breast sizes of plaintiff and her

roommate. Plaintiff offered only hearsay testimony

that the event occurred. This court, therefore. orally

granted summary judgment on this allegation for lack of

any admissible evidence.

In each of the preceding incidents, plaintiff alleged that

defendants used their authority as upperclassmen to

some degree. That is, they relied on the basic power of

an upperclassman to direct the activities of freshmen

and to require the freshmen to stand at attention.

However, the events alleged all violate official written

school policy. The relevant rules and policies are

discussed in detail below.

As plaintiff acknowledged in her various depositions,

she was aware that the upperclassmen were engaging in

prohibited activities in each instance: [FN9] Plaintiff

reported some of these incidents at the time they

occurred (the Anderson cardboard and Saleeby "boxer

shorts" incidents). In most cases, however, she did not

Sla

report the incidents until just before she withdrew from

the school in December 1996. Plaintiff asserts that she

did not report most incidents of alleged harassment for

fear that defendants and other upperclassmen would

retaliate by increasing their harassment of plaintiff.

There is evidence in the record from which a jury could

conclude that this concern was reasonable. Plaintiff

also believed that the punishment previously dispensed

for the incidents she reported had been inadequate.

FN9. In one of her depositions, plaintiff conceded

she knew she did not have to Obey illegal orders

and that she could have walked out when faced

with a threatening incident. Pltf depos,

(December 1998) at 194- 95. She also knew the

fire incident was more serious than the cardboard

incident. /d. at 196. Nonetheless, she felt that

reporting the fire incident would not have insured

that such an event would never happen again

because she was fearful of retaliation and because

she felt Anderson had received too light a

punishment for the cardboard incident.

Plaintiff's recent affidavit relating to the state actor

issue also supports this conclusion, as plaintiff

concedes that she was aware that any order to

open her lock box was in violation of school rules.

As noted above, the court has not allowed plaintiff

to amend her allegations or factual record at this

time to raise these new allegations, but will

consider the affidavit only as it relates to the state

actor issue. Supra note 7.

The school disciplined Anderson for the cardboard

incident by restricting him to campus for some period of

52a

time and by requiring him to "walk tours." _[FN10]

Cadets, including Saleeby, were reminded of the proper

rules of attire after plaintiff reported that Saleeby had

come into her room clad only in shorts.

FN10. "Walking tours" is a form of punishment

that involves marching in a set pattern for a

specified period of time.

Plaintiff's later reports of harassment or hazing by

Saleeby and Anderson and other students resulted in

significant investigations and punishments by the school.

A number of cadets, including these defendants, were

effectively placed on house arrest during the

investigations. Defendant Saleeby faced a commandant's

board and was suspended from the sciiool for one year.

Defendant Anderson resigned from The Citadel rather

than face a commandant's board. His resignation

precludes his return to the school.

Gender Motive Evidence

During the first oral argument on the summary judgment

motions of numerous parties, it became clear to this court

that the various allegations against the numerous

defendants were not adequately delineated. The court,

therefore, asked plaintiff to submit an outline which, inter

alia, individually described each of her allegations of

harassment at The Citadel and explained what evidence

connected each defendant to any given allegation. The

court also requested a specification of all evidence

showing gender-based motivation on a defendant-by-

defendant basis.

Plaintiff subsequently filed a detailed chart summarizing

ER IN Panne im ed a aoe Uae eee

S3a

this information and attaching all supporting evidence.

In these submissions, plaintiff primarily relied on a single

Short and general statement from her own deposition to

Support her suggestion that she was harassed because of

her gender. Specifically, in a deposition in a related

matter, Mellette v. Jones, C/A 2:93- 488-2 (D.S.C.),

plaintiff testified that a number of cadets told her she

"didn't belong" at The Citadel. Pltf Chart, Exhibit 10C

(Pltf depos (Mellette ) at 179). The cadets listed included

"Batson, Amhaus, Spruills, Anderson, [and] Bohm." /d

While it may be debatable whether such a generic

statement is adequate evidence of gender bias, this court

has presumed, for present purposes, that it is.

There is at least some suggestion of other animus

evidence as to Anderson. According to an FBI report of a

statement given by Anderson, he "was concerned at the

beginning of the school year when he found out that

female cadets would be allowed to attend The Citadel.

Anderson was concerned that the females would disrupt

the atmosphere of The Citadel. Anderson made it a point

to have very little contact with the female cadets because

he felt they were nothing but trouble." [FN11]

FN11. The FBI agent's summary of Andersor's

Statements obviously presents hearsay concerns.

Nonetheless, for purposes of the present motion,

the court has presumed this evidence might be

admissible against the moving party. No

objections to the form of the submission have been

raised.

Plaintiff's generic statement that numerous cadets told her

that she did not belong at The Citadel does not include

54a

any reference to Saleeby. By contrast, there is

uncontradicted evidence that Saleeby, at various times,

took action beneficial to plaintiff. In early September,

when plaintiff first experienced the pain in her pelvic

area, she "approached ... Saleeby because the pain was

just unbearable." Saleeby asked if plaintiff could run

down the stairs (as required of freshmen) to get back to

her room. When plaintiff said she could not, Saleeby

walked her down to her room "so nobody would give

[her] a hard time." As plaintiff recalls, Saleeby also got

her some ice that night. Pltf depos (Mellette ) at 48-49.

Saleeby also gave plaintiff permission to go to the

infirmary. Plaintiff concedes that Saleeby did not give

her "a hard time" about the situation. Pltf depos (Mellette

) at 50.

While Saleeby did not expressly encourage plaintiff to

remain at The Citadel, he did tell her that if she stayed

through Christmas, he would give her a memento

(apparently an item of cadet insignia) that was passed

down through the years between cadets who were from

Charlotte. Pltf depos (Mellette ) at 141. Plaintiff, like

Saleeby, was from the Charlotte area, and it was now his

turn to pass on the memento. Pltf depos (Mellette ) at

141. Plaintiff testified that her relationship with Saleeby

never soured, although she lost respect for him due to his

actions, such as coming into her room in what she

believed were boxer shorts and his presence during other

incidents she felt were improper. Pltf depos (Mellette ) at

142. Plaintiff also testified that Saleeby checked on a

fellow female freshman, Kim Messer, several times when

she left the mess hall ill. Pltf depos, (Mellette ) at 247.

Someone, possibly Saleeby, followed up to insure

plaintiff was okay on a similar occasion. PItf depos

(Mellette ) at 247.

55a

In her deposition in this action, plaintiff conceded that,

with the exception of the fire incident, Saleeby's actions

towards her were just playful harassment. Pltf depos

(December 1998) at 168. From the beginning, she felt

"that [Saleeby] was a professional cadet." Jd Thefire

incident "was out of character for him." /d.

Various statements in the FBI's summary of Saleeby's

FBI interview also suggest he held a generally positive

view of the female cadets. Specifically, Saleeby stated

that before cadre, he and another cadet discussed the fact

that having the women in their unit would be a good

learning experience. In the beginning, Saleeby felt

plaintiff was one of the best knobs he had ever seen. By

the end of her stay, however, he felt she was only average.

After observing four female cadets during cadre, he

concluded that the other three would "make it," but

plaintiff might not because she seemed to be there only

because her father made her attend The Citadel. [FN12]

FN12. As noted above regarding the Anderson

FBI interview summary, the court would normally

have concerns regarding the hearsay status of this

document. Here, however, the document was

offered by plaintiff in opposition to defendants'

motion for summary judgment. Neither side

objected to the-form of the evidence.

FACTS REGARDING STATE ACTOR STATUS

The Citadel and Fourth Class System

Critical to resolving the present motion is an

understanding of the nature of The Citadel experience.

The official policy of the school is contained in a number

4 a ee re

56a

of written manuals, including the "Blue Book," which is

provided to all students. The version provided to

plaintiff and in effect during her freshman year was the

1996 Blue Book (hereafter "Blue Book").

While Citadel staff and administration retain ultimate

authority for the operation of this military style system,

day-to-day functioning is dependent on the cadet chain of

command. Indeed, many of the benefits of the military

training model derive from this delegation of authority.

The greater responsibilities under the system go to the

more senior students, who are supervised and mentored

by staff or active duty military personnel assigned to the

school. These more senior students, in turn, mentor and

supervise those students below them.

The school operates on a military model, with an

adversative training system. Blue Book, Chap. 2

(Command, Control and Organization). All students

wear uniforms and are subject to extensive military style

rules and living conditions. Freshmen, in particular, are

subjected to a fairly extreme set of disciplinary and

behavioral rules under what is referred to as the "Fourth

Class System."

A. GENERAL. The Fourth Class System at The Citadel

is singularly unique in its evolution, traditions,

implementations, and purpose. The Fourth Class

System is the cornerstone of the military lifestyle which

surrounds each Citadel Cadet. Its evolution has been

natural within an institution whose mission of The

Corps of Cadets has changed little since its inception:

"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 disciplined military environment."

57a

Blue Book, Chap. 16. Clearly, with the admission of

women to The Citadel, this mission was modified to

include female undergraduates. There is no evidence that

the mission has otherwise been modified.

"The Fourth Class System at The Citadel requires strict

and unquestioning obedience, mental and _ physical

toughness, and mature tolerance of confrontation and is

an intense, high-stress experience designed to facilitate

development of 'The Whole Man.' " Blue Book Chap.

16.B. The "Whole Man" concept is "designed to produce

excellence in four areas: academics, military, physical

fitness and moral, ethical, and spiritual growth." Blue

Book, Chap. 16.C. While the program is restrictive, the

written policy requires implementation in a manner that

"support[s] each cadet's requirement to achieve academic

excellence" and prohibits use of the system to "interfere

with a cadet's right to adequate sleep and food." Blue

Book, Chap. 16.D.2-3.

Freshmen must come to attention whenever an

upperclassman enters their barracks or speaks to them.

Blue Book, Chap. 16.1.2.f. & 3.d. Freshmen are allowed

only very limited, formal responses to upperclassmen:

"yes Sir;" "no Sir;" "no excuse, Sir;" and "request

permission to make a statement, Sir." Blue Book, Chap.

16.G.1. When outside their own room or classroom, they

are generally required to move briskly (walk at 120 steps

per minute) or to stand at attention. Blue Book, Chap.

16.1.2. f, g & I; Chap. 16.1.3.b & d. Freshmen are

prohibited from using a number of common areas. Blue

Book, Chap. 16.I.5.a-f. The freshmen are required to

spend time in drill and in performing company details

such as cleaning the common areas of the barracks. Blue

Book, Chap. 16.J.1-7. They are required to follow

detailed and restrictive procedures at meals and to

58a

memorize and recite certain factual information at meals

and other times. Blue Book, Chap. 16.1.4. a-n & L.1-3.

In addition to the official rules, which make life as a

Citadel freshman unusually restrictive for a college

student, it is apparently not at all uncommon for

upperclassmen to mildly harass freshmen either verbally

or by requiring the freshmen to engage in an activity not

of the freshman's choosing (e.g., spending long periods of

time polishing a given item). Nonetheless, the school

expressly prohibits any action that might be deemed

hazing or abusive treatment of freshmen:

H. Violations of the Fourth Class System

1. Hazing. Hazing is a violation of the South Carolina

State Law and Citadel Regulations and is punishable by

expulsion from The Citadel. 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. Hazing includes requiring

performance of personal service or humiliating verbal

abuse.

2. Other major violations of the Fourth Class System on

the part of upperclassmen, which may not constitute

hazing, are considered serious offenses and are

punished in accordance with Annex B.

3. All violations of the Fourth Class System are

reported immediately. Hazing and major violations of

the Fourth Class System are reported to the

Commandant within one hour of its discovery,

regardless of the time of day.

Blue Book, Chap. 16-H.1-3. See also Blue Book, Chap.

16.J.7. (also prohibiting requiring freshmen to perform

tasks of a personal nature for upperclassmen); Chap.

16.G.3. (prohibiting touching without permission and

allowing touching only to provide correction and only in

59a

an open area in full view of at least one other cadet); &

16.G.4. (allowing freshmen to "focus exclusively on

academics" while attending class and during published

study periods).

The Blue Book provides as follows regarding contact

with freshmen:

K. Contact with Fourth Classmen.

2 = eek SS

2. Training, counseling, and inspecting fourth classmen

is restricted to the chain of command. Correcting and

reporting fourth classmen is the responsibility of all

cadets and officers associated with The Citadel who

may observe an infraction of the part of a fourth

classman.

Blue Book, Chap. 16.K.2.

Ultimate responsibility for enforcement of the fourth

class system rests on the Commandant, although day-to-

day functioning is overseen by the Cadet Regimental

Commander, a cadet senior. Blue Book, Chap. 16.F.1-2.

Active duty military officers assigned to the school are

also "responsible for teaching, advising, and mentoring

cadet leaders as they implement the Fourth Class

System." Blue Book, Chap. 16.F.3. An army officer was

assigned to plaintiff's company in such a supervisory role.

"All personnel have an obligation to report any Fourth

Class System violations to an appropriate authority."

Blue Book, Chap. 16.F.4. Freshmen also have formal

rights to appeal their treatment as freshmen. Blue Book,

Chap. 16.M.

The school expressly prohibits discrimination on the

basis of gender and various other impermissible criteria.

Blue Book, Chap. 1.H.1-6. The Blue Book provides

60a

extensive guidance as to what is considered sexual

harassment and provides a variety of means for handling

complaints. Blue Book, Chap. 1.H.1- 7. Training was

given to the higher ranking cadet officers prior to the

arrival of the female students to insure the anti-

discrimination policy was disseminated.

Formal discipline as to any infraction of any school rule

is accomplished through a system of reporting violations

using "performance reports." Blue Book, Chap. 6.G.

Performance reports 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." Blue Book, Chap. 6.G.1.

However, the Commandant retains primary responsibility

for administering the disciplinary system. Blue Book,

Chap. 6.A.2.

Performance reports for improper conduct are forwarded

to the Commandant's office for recording, then to the

offending cadet who may either acknowledge the offense

or submit a written explanation and forward the document

to the company commander. Blue Book, Chap. 6.G.2.c.

The company commander may note the punishment for a

class III offense (class III offenses all have assigned

punishments, Chap. 6.E.1.c.) or recommend punishment

for certain other offenses. Blue Book, Chap. 6.G.2.d.

The ultimate punishment decision is, however, made by

the Commandant or Assistant Commandant except as to

the most minor rule infractions. See Blue Book, Chap.

6.G.2.e.

Findings of Fact as to State Actor Status

Defendants Saleeby and Anderson were _ both

upperclassmen in Echo Company to which plaintiff was

6la

assigned. Both were juniors and held the rank of

sergeant in the fall of 1996. At no time was defendant

Anderson in plaintiffs direct chain of command.

Defendant Saleeby was in plaintiffs chain of command

during the first portion of her training known as "cadre."

During this period, he served as plaintiff's squad leader.

Although Saleeby later moved from plaintiff's direct chain

of command, plaintiff still perceived him as someone with

particular authority over her due to his earlier position of

direct authority. Some of the events alleged as to

Saleeby may have occurred during the cadre period.

[FN13]

FN13. Plaintiff alleges that the Saleeby-Bohm fire

incident occurred in early or mid-October. The

cadre period ran through October 12, 1996.

Plaintiff was required by official school policy to come to

attention when Saleeby, Anderson or any _ other

upperclassmen entered her room or spoke to her. She was

allowed to answer them only with the limited responses

allowed freshmen in addressing upperclassmen. See

supra, Fourth Class System.

Plaintiff was aware that certain forms of harassment were

prohibited by official school policy. She was aware that

each of the actions now alleged falls within the prohibited

actions. She was aware of her options to report improper

actions and to refuse to obey an unlawful order.

Nonetheless, there were potential negative consequences

to either behavior, of which plaintiff was also aware.

Refusal to obey an order could only be undertaken at the

risk of disciplinary action in the event the ultimate

62a

‘ authority concluded the order was not improper. Given

the uniqueness of the system, the average freshman could

be expected to have some difficulty discerning the

lawfulness of many orders. Most or all of the alleged

instances of harassment still at issue in this action,

however, were known to plaintiff to be unlawful. [FN14]

FN14. Plaintiffs early reports of the cardboard

incident and the "boxer" short incident

demonstrate this knowledge. She was also clearly

aware that touching or threatening harm was

unlawful. In short, only the allegations of

different disciplinary treatment by Anderson in

regard to the Thanksgiving drinking incident

might raise issues relating to plaintiff's knowledge

of the propriety of any action by an upperclassman

still at issue in this action. Even that is doubtful

given the school's clear rules regarding gender

discrimination. At most, plaintiff was uncertain

whether the school would believe her version of

events: that she was treated differently than male

cadets under similar circumstances.

Certainly reporting harassment or refusal to obey

questionable, if not clearly invalid, orders risked an

increase in pressure and punishment by upperclassmen in

general and the offending upperclassman in particular. In

a Fourth Class System such as The Citadel's, which

emphasizes class unity, peer pressure is particularly

significant and might also be negatively affected by

failure to "go along."

The court, therefore, finds that the moving defendants

had at least some measure of authority over plaintiff by

aaa iataaiaceniiaiiaitiniinitiiaianitmiaiinint

63a

virtue of the system created and sanctioned by The

Citadel, a state institution. Their authority, however, was

limited to that of any given upperclassman in her

company, except as to Saleeby during the cadre period.

The specific allegations at issue, however, are not of a

type as to which Saleeby's particular authority as squad

leader would be relevant.

While limits were imposed by the system and plaintiff

had options in responding to improper behavior, the

system itself enhanced the likelihood plaintiff would be

discouraged from reporting violations and would -suffer

some negative result from exercising her options to report

harassment. Nonetheless, it is quite clear that the school

did not endorse or encourage abuses of the fourth class

system and, in fact, endeavored to discourage abuses of

the type alleged by plaintiff.

The very abuses plaintiff alleges as to the present

defendants were punished or adequately addressed when

brought to the school's attention. Plaintiff reported the

Anderson cardboard incident when it occurred.

Anderson was punished. When plaintiff raised concerns

that males (including Saleeby) were wearing boxer shorts

in view of the female cadets, the cadets were reminded of

the need to dress appropriately. [FN15] While more

severe sanctions could have been imposed in either case,

the school had many factors to consider, including the risk

of hindering the assimilation of women if the school

Overreacted. This court concludes, therefore, 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.

64a

FN15. As noted above, it is now evident that

Saleeby did not wear the boxer shorts when

entering plaintiff's room. He did, however,

appear without a shirt which also violated school

rules. While a violation of rules, it was a

relatively minor infraction, and the court cannot

say that more than a reminder was called for.

Plaintiff concedes no further incidents relating to

improper apparel occurred involving Saleeby.

The plaintiffs December 1996 reports as to other

allegations of abuse also led The Citadel to impose

serious, if not severe, sanctions. | While the school's

response to plaintiffs December reports necessarily did

not occur until after plaintiff left the school, it evidences

the fact that the school did not condone the behaviors at

issue. Perhaps most telling is the fact that several cadets

involved in the alleged instances of harassment (including

Anderson) resigned, rather than face a commandant's

board. This strongly suggests that these cadets were well

aware that the incidents of alleged hazing would not be

treated lightly.

The court, therefore, finds as to the state actor issue that

the alleged actions of defendants Saleeby and Anderson

fall clearly within the categories of harassment that are

expressly prohibited by the official written policy of the

school. The court further finds that the school's actual

enforcement of its official policies relating to the Fourth

Class System was adequate to preclude any finding that

the school endorsed or encouraged any contrary informal

policy. The court does not suggest any conclusion as to

whether the school's enforcement of its official policies

were adequate for any other purposes. [FN16]

65a

FN16. This court is not making a finding as to

whether the school's efforts to prevent abuse were

ideal or even adequate for any purposes beyond

the state actor determination. The court does not

find it necessary to resolve the broader questions

for purposes of the present order. To resolve

them, the court would need to consider numerous

issues of fact including whether the school

actively discouraged students from seeking redress

beyond the school's own system (such as by

reporting abuse to outside sources), if the student

subjectively questioned the school's enforcement

efforts or otherwise determined that allegations of

abuse should be made public.

Finally, the court finds that while the Fourth Class

System established by the school has known risks of

abuse, as well as disincentives to reporting any abuse,

these ‘risks are inherent in the unique educational

opportunity offered at The Citadel. To require that the

risks be eliminated would be to eliminate the very system

of education on which the school is based. This is not to

say that the risks can be ignored. However, if the school

makes genuine and reasonable efforts to minimize the

risks, it cannot be said to endorse the abuses that might

result.

The court finds that the school was well aware of the

risks and the history of abuse of the Fourth Class System.

The court finds, however, that the school had made efforts

to manage the risks by placing final disciplinary control

with the Commandant and staff, by creating a variety of

methods to report violations, by imposing numerous

requirements for immediate reporting of alleged abuse,

66a

and by imposing adequate punishments for reported

abuses when established. The numerous provisions of

the Blue Book cited above, various reports commissioned

by the school, and positions taken publicly by the

administration support these conclusions. See, e.g.,

Defendant's Exhibit 4 "Commandant's Notes" (article by

Colonel Trez discussing concerns with Fourth Class

System, various prior studies, and ongoing efforts to

retain the benefits of the fourth class system while ending

any abuses). :

DISCUSSION

Plaintiffs remaining Section 1983 claim alleges that

defendants Saleeby and Anderson violated plaintiff's

rights under the Fourteenth Amendment. The Fourteenth

Amendment, like most constitutional amendments, only

limits actions by governmental entities. See, e.g., Lugar

v. Edmondson Oil Co., 457 U.S. 922, 936, 102 S.Ct. 2744,

73_L.Ed.2d 482 (1982). Therefore, plaintiff must not

only prove that the actions were undertaken under color

of state law, but also that defendants’ actions constituted

action by the state. /d_ at 935 n. 18, 102 S.Ct. 2744

(discussing the relationship between the color of law and

State actor requirements). The analysis of the state actor

issue begins with the presumption that college students

are generally not state actors. Plaintiff argues, however,

that the cadets became state actors by virtue of the special

role played by upperclass cadets at The Citadel.

The Supreme Court set out a three step analysis for

determining state actor status in Blum _v. Yaretsky, 457

U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982). In

Blum, the Court declined to find that a private nursing

home was a State actor as to its decisions to discharge or

transfer Medicaid patients, despite the fact that the home

~

67a

received significant state funding and was subject to

extensive regulation. The Blum standard was recently

summarized by the Fourth Circuit Court of Appeals as

follows:

The Supreme Court has identified three situations in

which particular conduct by a private entity constitutes

"state action." The first situation is the symbiotic

relationship and occurs when there is "a sufficiently

close nexus between the state and the challenged action

of the regulated entity such that those actions may

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