# Petition for Writ of Certiorari — Mentavlos v. Anderson

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 534 U.S. 952

## Text

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

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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

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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.

Dur

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2254%3A1. Public record. Not legal advice.