Opposition Brief — Mentavlos v. Anderson

( D Supreme Court, US.

FILBP

No. 01-224

[ SEP 5 20t——

CIn 6) he

Supreme Court of the

FFICE OF BE CLERK

Cinited States

JEANIE MENTAVLOS,

Petitioner,

V.

JOHN JUSTICE ANDERSON;

JAMES SALEEBY,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF IN OPPOSITION

Sandra J. Senn

Counsel of Record

Stephanie P. McDonald

SANDRA J. SENN, P.A.

3 Wesley Drive

Charleston, South Carolina 29407

(843) 556-4045

Counsel for Respondents

THE LEX GROUP ¢ 1108 East Main Street # Suite 1400 ¢ Richmond, VA 23219 oy

(804) 644-4419 ® (800) 856-4419 @ Fax: (804) 644-3660 ¢ www.thelexgroup.com a4

Il.

QUESTIONS PRESENTED

Whether upperclass students given limited

authority to correct minor rules infractions but who

instead violate written school policy expressly

prohibiting abusive treatment or discrimination

may fairly be deemed state actors at a college

whose mission is to educate civilian students and

produce community leaders?

Whether the Fourth Circuit properly applied the

state action test by exhaustively analyzing the

numerous facts and tests applicable in the state-

action context, recognizing that these criteria lack

rigid simplicity, and considering that state action

has been found when a private entity is entwined

with governmental policies?

Whether the actions of students at a state-

supported college, acting in a manner proscribed

by the college and known by the plaintiff to be

violative of the applicable rules, can in law or

fairness be attributed to the State of South

Carolina?

Whether the Fourth Circuit properly held that

upperclass students at The Citadel were not state

actors as they are no more members of the military

than students attending other state-supported

colleges in South Carolina and as the functions of

military protection and training have not been

delegated to them by the state or federal

governments?

Whether the District Court properly granted

summary judgment to Respondent Saleeby

because Petitioner failed to produce any evidence

of gender-based discrimination on his part?

QUESTIONS PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF THE CASE

STATEMENT OF THE FACTS

REASONS FOR DENYING THE WRIT

I.

TABLE OF CONTENTS

The Fourth Circuit properly applied

the state action test by exhaustively

analyzing the numerous facts and

tests applicable in the state-action

context, recognizing that these criteria

lack rigid simplicity, and considering

that state action has been found when

a private entity is entwined with

governmental Policies ...........sssserseseeees

The actions of students at a state-

supported college, acting in a manner

proscribed by the college and known

by the plaintiff to be violative of the

applicable rules, cannot in law or

fairness be attributed to the State of

III, sac sanauennmidisnesennnoasenne

Il. The Fourth Circuit properly held that

upperclass students at The Citadel

were not state actors as they are no

more members of the military than

students attending other state-

supported colleges in South Carolina

and as the functions of military

protection and training have not been

delegated to them by the state or

federal governMe¢»t ............00ssssecsseseseeeessere 14

IV. The District Court properly granted

summary judgment to Respondent

Saleeby because Petitioner failed to

produce any evidence of gender-

based discrimination on his part...............+++ 20

IIE snncesisnecnonsopssecnsntncmnnisinenanestenninanacueseepnosicneneasentens 21

BPP TEI, covccerensnenenesiesnnecenmantannnnnonnnensniamannensinanniinte App. i

TABLE OF AUTHORITIES

Page(s)

Cases:

Alton v. Hopgood,

Pe Be I, BEF GRE. TING Jaerseccscivenssnsoesnsvensanansnvevsniin 17

Alton v. Texas A&M University,

168 F.3d 196 (5% Cir. 1999) sinechaetaenint 17

Arlosoroff v. National Collegiate Athletic Ass.,

746 F.2d 1019 (4t Cir. 1984) ...........0.ccccscssesseseore 16

Blum v. Yaretsky,

457 U.S. 991, 102 S.Ct. 2777,

73 L.Ed.2d 534 (1982)...........0secsseesees seine 16

Brentwood Academy v. Tennessee Secondary School,

es TW Ce rseetsinsintntnnnincinininnainncininnreeanes passim

Dowe v. Total Action Against Poverty in Roanoke Valley,

BD FIG GES COO GG, TOT I) wessccnrcccesnesorsorserscesscornes 6,7,9

Hughes v. Halifax County School Board,

SS PA BED GEM Cae, BI) vecccrcesccsssscsecenessnereinonpns ime @

Indorato v. Patton,

994.F. Sapp. 300 (E.D. Pa. 1996) .......cscssscerverscscscessereseens 8

Leeds v. Meltz,

ee a Ie, TAI crcccsteenennsviinrnernerinninisneisonmnncinens 14

Mentavlos v. Anderson,

85 F. Supp. 2d 609 (D.S.C. 2000)..........sessssssseeere passim

iv

Mentavlos v. Anderson,

DED F. SE BR Ge, Ba sccesnsccntscsieenensvscionennnen passim

Rendell-Baker v. Kohn,

457 US. 830, 102 S.Ct. 2764,

7S La Rae AEP GPE scinsiiicinstnecbinsininteanianianiniurinnsioes 16, 19

Yeo v. Town of Lexington,

131 F.3d 241 (1st Cir. 1997), cert. denied (1998) ..........+ 7

Statutes:

10 U.S.C, 8 FER Ge ciiccceneteatiss scl bictecariiiceninen 17

S.C. Cone Aum: Tapert wea taesencetistacsadcedccancbitinhccsintiieinsncninick 18

S.C. Codie Agume, pe tr aie autidinseadtatteinctictintinnntnttininicninatinccines 16

Constitutional Provisions:

Fepeartemereliiin Am iicsciccscsisinsereniiiennsnetnbainteciencianebnenetnannhaiate 7

T F E

Petitioner, a former student at The Citadel, brought

this action after leaving the school in 1996. All claims except

those against student defendants John Justus Anderson,

James Saleeby, and Edward Bohm were settled prior to the

district court's final ruling on the pending summary

judgment motions.

Initially, plaintiff's allegations depended upon proof

that the student defendants acted in concert with one or

more members of the college’s faculty or staff. When it

became apparent, however, that plaintiff could in no way

establish the proof necessary to support this theory, the

court allowed her to amend her complaint to allege that the

individual cadet defendants were themselves state actors.

See Mentavlos v. Anderson, 85 F. Supp. 2d 609, 611 (D.S.C.

2000). Plaintiff then withdrew her allegations under Section

1985, her allegations of due process violations under Section

1983, and her claims of a Section 1983 conspiracy. The only

claims remaining against defendants Anderson and Saleeby

allege violations of plaintiff's Fourteenth Amendment right

to equal protection.

The parties consented to the District Court's

resolution of any underlying factual questions relevant to

the state actor inquiry, and a bench trial was held on

November 17, 1999. On February 15, 2000, the District

Court ordered that summary judgment be granted in favor

of defendants Anderson and Saleeby, holding that they

were not state actors. The District Court further concluded

that the record revealed “no evidence that defendant

Saleeby’s actions towards the plaintiff were motivated by

gender bias.” Id. at 628.

On interlocutory appeal, the Fourth Circuit

considered the actions of the student defendants under both

prior state action analyses as well the flexible entwinement

framework set forth recently in Brentwood Academy v.

i ed

Tennessee Secondary School, 212 S.Ct. 924 (2001). The Fourth

Circuit affirmed the District Court’s granting of summary

judgment, holding that these “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

determined by the facts before us today.” Mentavlos v.

Anderson, 249 F.3d 301, 322 (4 Cir. 2001). Respondents are

now before this Court opposing the Petition for a Writ of

Certiorari.

STATEMENT OF THE FACTS

In the fall of 1996, Jeanie Marie Mentavlos decided to

enter The Citadel as one of its first four female freshmen.

Petitioner Mentavlos has alleged that she was mistreated

by other student members of the Corps of Cadets. She

claims that because of her gender, and as part of The

Citadel’s long fight to keep women out of the Corps,

certain individual student cadets acted in concert with The

Citadel and its leaders to sexually harass her and drive her

from the school.! At the close of discovery, the plaintiff

had produced no evidence to support her constitutional

claims.?

1 Petitioner has admitted that she has no evidence to suggest that

either Saleeby or Anderson was involved in this alleged conspiracy.

2 The Petition for a Writ of Certiorari again re-hashes a host

of issues not in any way associated with the current appellees (i.c.,

Shannon Faulkner ordeal and internet photo) or the state action

analysis.

Respondents were low level sergeants, and many

cadets outranked them. They could not give official

punishment to the plaintiff, as said action would have had

to go through the chain of command and actually be

approved by a member of The Citadel faculty. Mentavlos, 85

F. Supp.2d at 618-619. At most, what the defendants could

do is simply write “white slips” or “performance reports”

for the plaintiff so that she would have to face charges of

violations?.

In her Petition, Mentavlos appears to once again

assert new allegations against these Respondents.

Switching gears from her prior claims in an attempt to

create sexual discrimination where none exists, she presents

the contradictory statement that Saleeby set a fire “at her

waist, close to her breasts, presumably so that her

undergarments would show through.” (Petition at p. 26).

Never once has she presented this “presumption” in the

past. Heretofore, she claimed that other defendants set

her t-shirt on fire near her breast area, but Saleeby was not

one of these defendants. If the Court reviews the

photographs of that t-shirt, it is difficult to imagine how

Ms. Mentavlos’ breasts or undergarments could have

possibly been located in the areas where the shirt was

burned. However, the t-shirt is a non-issue. Defendant

Saleeby has only been accused of setting Mentavlos’

sweatshirt (not t-shirt) on fire, on the tag area. This tag was

located near her waist, and near the pockets of the

sweatshirt, as photographed. 85 F. Supp.2d at 612, 612 n.4.

(Please see also photograph attached at App. 1).

The Fourth Circuit’s proper affirmance on the state

actor issue is of considerable importance as it will have a

lasting and tremendous impact on the viability of The

$ Interestingly, defendant Saleeby only wrote the plaintiff a

performance slip for merits and good conduct, not demerits.

Citadel's fourth class system as it currently exists.‘ This

issue was properly decided as a matter of law because

different juries could make varying determinations as to

whether a mere cadet, who is not even of significant rank,

can be a "state actor" for Section 1983 purposes. This issue is

important not only to the military school itself, but to any

parent who sends his or her child to military school.

Heretofore, it was simply not foreseeable that sending a

child to military college could subject that child to liability

for having become an "arm of the state."

Throughout this litigation, plaintiff has made

numerous, contradictory allegations, even as her theories of

liability continued to metamorphose. Yet two things are

certain. One, the plaintiff knew she did not have to obey

illegal orders such as allowing herself to be set on fire. Id. at

614; see also 249 F.3d at 322. Two, she was free to leave the

school at anytime and was certainly no prisoner there.

Petitioner now claims that the two remaining

defendants, Jamie Saleeby and Justus Anderson, were most

responsible for her plight. However, the record clearly

shows that Cadet Anderson had little contact with

Mentavlos. And Saleeby was, in fact, one of her few

comforters as other cadets chided her for being a poor cadet.

See e.g., 85 F. Supp.2d at 615. Ironically, though Mentavlos

now claims that Saleeby and Anderson were her worst foes,

they just so happen to be the only two defendants who

decided to challenge Ms. Mentavlos to prove her claims.

She simply failed to prove those claims to the District Court,

and the Fourth Circuit properly affirmed.

4 The Citadel could never afford to insure all cadets as potential

state actors, and it is highly unlikely that any military school could afford

said insurance.

REASONS FOR DENYING THE WRIT

I. The Fourth Circuit properly applied the state action

test by exhaustively analyzing the numerous facts

and tests applicable in the state-action context,

recognizing that these criteria lack rigid simplicity,

and considering that state action has been found

when a private entity is entwined with

governmental policies.

Relying upon this Court’s recent opinion in

Brentwood Academy v. Tennessee Secondary School, 212 S.Ct.

924 (2001), Petitioner claims that the district court applied

too rigid a test for state action. An analysis of Brentwood,

however, demonstrates that the entity considered there is in

no way analogous to the student cadets in this case. In

Brentwood, the Court examined the Tennessee Secondary

School Athletic Association, “a not-for-profit membership

corporation organized to regulate interscholastic sport

among the public and private high schools in Tennessee that

belong to it. No school is forced to join, but without any

other authority actually regulating interscholastic athletics,

it enjoys the memberships of almost all the State's public

high schools (some 290 of them or 84% of the Association's

voting membership), far outnumbering the 55 private

schools that belong.” Id. at 928.

When certain penalties challenged by Brentwood, a

private school, were imposed, “all the voting members of

the board of control and legislative council were public

school administrators.” Id. at 929. The entwinement down

from the State Board was “unmistakable, just as the

entwinement up from the member public schools is

overwhelming. 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.” Id. at

933.

ein cries |

The Court did not abandon all prior state action tests

in Brentwood, but presented the limited holding that when

“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 might not

loom large under a different test.” Id. at 934.

Here, even a flexible analysis of the facts and

relevant state action cases establishes that these student

cadets were not state actors for Section 1983 purposes. As

the opinion of the district court details, Petitioner produced

evidence which, if believed, would show that the

defendants were each involved in three incidents of

harassment or improper treatment. As to Saleeby, these

were the October 1996 lighting of plaintiff's clothing on fire

and his kicking or brushing with his foot to extinguish the

fire, the allegation that on one or more later occasions

Saleeby kicked the plaintiff in the legs, and that on one

occasion, Saleeby entered plaintiff's room wearing only

non-uniform shorts and shower-type shoes. Mentavlos, 85

F, Supp.2d at 621-613.

As to Anderson, plaintiff asserted that while making

crudely worded comments, Anderson pushed cardboard

into her face and chin, leaving welts that lasted one or two

days, that he stopped the plaintiff and another female cadet

after they came in drunk just before Thanksgiving break and

sent them to the company commander's room, and that he

made threatening statements to the plaintiff at various

times, including statemerits that he would physically harm

or kill plaintiff or her brother, who was an upperclass cadet.

The events alleged as to both defendants “all violate official

written school policy.” Mentavlos, 85 F. Supp.2d at 613-14.

Throughout this litigation and over the course of

several theories of liability, plaintiff has been unable to

establish any government participation in these private

activities. In Dowe v. Total Action Against Poverty in Roanoke

Valley, 145 F.3d 653, 658 (4% Cir. 1998), the Fourth Circuit

reiterated that:

Ai i

[a]cting under color of state law is

equivalent to that of state action under the

Fourteenth Amendment. The state action

requirement “reflects judicial recognition of

the fact that ‘most rights secured by the

Constitution are protected only against

infringement by governments.” “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.”

Id. at 658 (internal citations omitted).

“The essential state action inquiry is whether the

government has been sufficiently involved in the challenged

actions that it can be deemed responsible for the plaintiff's

claimed injury. If there is no state action, then the court may

not impose constitutional obligations on (and thus restrict

the freedom of) private actors.” Yeo v. Town of Lexington, 131

F.3d 241, 248-49 (1st Cir. 1997), cert. denied (June 1, 1998). As

in Yeo, a case dealing with two student editors’ decision not

to publish an ad in a school yearbook, the actions of which

plaintiff complains as to both Anderson and Saleeby were

actions taken by students. The First Circuit explained in Yeo

that the only decisions that it found “which assume there is

state action do so where the parties agreed there was state

action and it was undeniable the decision makers were

government officials.” Id. at 251. This is not such a case.

Here, the students “are themselves at least facially private

actors.” Id. at 251.

Similarly, in Indorato v. Patton, 994 F. Supp. 300 (E.D.

Pa. 1998), a district court held that a state university football

player who struck a referee during a sanctioned football

game was not a state actor for Section 1983 purposes. The

court reached this result even though the athlete received a

scholarship, liability insurance and a uniform free-of-charge

from the school. Id. at 307. Rejecting plaintiff's arguments

under the “symbiotic relationship,” “joint participant,”

“nexus” and “government function” tests, the court noted

that plaintiff had failed to establish that playing football at a

state university was anything more than a student activity.

Mentavlos has likewise failed to demonstrate that any of the

acts taken against her by individual cadets were anything

more than student activities, particularly in light of The

Citadel administration’s orders that the cadets’ duty

required that they deal with the freshman women in a

professional manner. The Citadel’s “Blue Book” clearly

prohibits hazing and in fact, a cadet must obtain permission

from a fellow cadet before engaging in even the slightest

touching of him or her. 85 F. Supp.2d at 617.

Significantly, the Indorato court held that:

Plaintiff's comparison of football players with

state troopers is irrelevant. The fact that both

football players and state troopers may, inter

alia, wear uniforms, “function in a quasi-

military structure,” have “specific job

assignments,” and follow rules, ... is not

dispositive on the issue of whether

Defendant is a state actor. As the court

explains throughout this opinion, what

matters is the nature and extent of

Defendant's contacts with the state.

Id. at 305 n.10. The same must be said of the students in this

case.

—

“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.” Dowe at 659. Brentwood did

not eliminate this central inquiry. In Hughes v. Halifax

County School Board, 855 F.2d 183 (4 Cir. 1988), a former

school employee sued school officials and fellow

employees under Section 1983, alleging that “he was

assaulted, battered, and subjected to intentional emotional

distress under color of state law because he was accosted

by county employees with retaliation in their eyes, on

county land, with county-owned rope, during work

hours.” Id. at 186. Rejecting the indicia of authority relied

upon by Hughes, the Fourth Circuit stated that if the

actions of his fellow employees amounted to state action,

then “any employee of the state who commits a tort has

potentially violated 1983. We cannot endorse such a

result.” Id. at 187. The same result would follow here if

this Court were to permit a holding that these individual

student cadets were state actors with respect to their

involvement with this plaintiff. To do so would dictate

that any Citadel cadet who commits a tort against an

underclassman has potentially violated 1983. Such a result

would be untenable and inconsistent with the purpose of

this statute.

II. The actions of students at a state-supported

college, acting in a manner proscribed by

the college and known by the plaintiff to be

violative of the applicable rules, cannot in law or

fairness be attributed to the State of South

Carolina.

Plaintiff initially attempted to characterize the

actions of cadet defendants Anderson and Saleeby as “state

action” by asserting that they “acted as aider, abettor or

co-conspirator in concert with the state actions” of

The Citadel defendants. She abandoned this claim,

however, when an examination of her evidence,

revealed that she could not support such a theory,

especially as to Anderson and Saleeby. To diate,

plaintiff has produced no evidence that any member of

The Citadel administration was ever involved in any

hazing, harassment, or otherwise improper acts. She has

also been unable to establish that any member of The

Citadel administration, faculty, or staff acquiesced in the

acts of the individual students or that “administrators and

faculty encouraged, sanctioned and refused to prevent

hazing, harassment and abuse of the new female

students, including plaintiff.” See Mentavlos, 85 F. Supp.2d

at 619 (“Nonetheless, it is quite clear that the school did

not endorse or encourage abuses of the fourth class

system and, in fact, endeavored to discourage abuses of

the type alleged by plaintiff’). Thus, it is difficult to

comprehend how the individual, unauthorized actions

of either student Anderson or Saleeby could be

categorized “in all fairness” as attributable to the State.

Indeed, plaintiff's abandonment of the constitutional

conspiracy causes of action is telling in that it epitomizes

the lack of proof that she has been able to set forth to

connect the private acts of the student cadets to any state

actor.

The District Court and Fourth Circuit considered

and noted numerous policies demonstrating that the

actions of which plaintiff has complained were forbidden

and that the school was taking steps to eliminate such

instances. For example:

10

1. Hazing. Hazing is a violation of the South

Carolina State Law and Citadel

Regulations and is punishable by

expulsion from The Citadel. Hazing is

defined as striking, offering bodily harm,

treating with violence, verbal abuse or

any treatment of a tyrannical, abusive, or

humiliating nature by a member of a

higher class to a member of a lower class.

Hazing includes requiring performance of

personal service or humiliating verbal

abuse.

2. Other major violations of the Fourth Class

System on the part of upperclassmen,

which may not constitute hazing, are

considered serious offenses and are

punished in accordance with Annex B.

3. All violations of the Fourth Class System

are reported immediately. Hazing and

major violations of the Fourth Class

System are reported to the Commandant

within one hour of its discovery,

regardless of the time of day.

Blue Book, (Supp. App. at pp. 364-423) Chap. 16-H.1-3. See

also Blue Book, Chap. 16.J.7. (also prohibiting requiring

freshmen to perform tasks of a personal nature for

upperclassmen); Chap. 16.G.3. (prohibiting touching

without permission and allowing touching only to provide

correction and only in an open area in full view of at least

one other cadet); & 16.G.4. (allowing freshmen to "focus

exclusively on academics" while attending class and during

published study periods).

11

The Blue Book provides as follows regarding contact

with freshmen:

K. Contact with Fourth Classmen.

»* * *€ & & ®

2. Training, counseling, and _ inspecting

fourth classmen is restricted to the chain

of command. Correcting and reporting

fourth classmen is the responsibility of all

cadets and officers associated with The

Citadel who may observe an infraction of

the part of a fourth classman.

Blue Book, Chap. 16.K.2.

Mentavlos, 85 F. Supp.2d at 617-618; see also 249 F.3d at 308-

310.

»* + * & © ®

"All personnel have an obligation to

report any Fourth Class System violations to

an appropriate authority." Blue Book, Chap.

16.F.4. Freshmen also have formal rights to

appeal their treatment as freshmen. Blue

Book, Chap. 16.M.

The school expressly prohibits

discrimination on the basis of gender and

various other impermissible criteria. Blue

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

extensive guidance as to what is considered

sexual harassment and provides a variety of

means for handling complaints. Blue Book,

Chap. 1.H.1- 7. Training was given to the

higher ranking cadet officers prior to the

arrival of the female students to insure the

anti-discrimination policy was disseminated.

12

The record simply does not support plaintiff's

argument that any harassment or hazing by other student

cadets that took place at The Citadel was controlled or

directed by school officials. Indeed, the uncontradicted

testimony has demonstrated that any isolated acts by

individual cadets were in no way coerced or even

encouraged by the administration. To the contrary, such

conduct was discouraged and cadets found to have

participated in such activities were disciplined, and even

expelled, a punishment viewed as overly harsh by many

observers.

In fact, “the very abuses plaintiff alleges as to the

present defendants were punished or adequately addressed

when brought to the school's attention. Plaintiff reported

the Anderson cardboard incident when it occurred.

Anderson was punished. When plaintiff raised concerns

that males (including Saleeby) were wearing boxer shorts in

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

need to dress appropriately.” Mentavlos, 85 F. Supp. 2d at

619.5

The plaintiff's reports as to other allegations of

abuse also led The Citadel to impose serious, if not

severe, sanctions. “A number of cadets, including these

defendants, were effectively placed on house arrest

during the investigations.” “While the school's response to

plaintiffs December reports necessarily did not occur

until after plaintiff left the school, it evidences the fact

that the school did not condone the behaviors at issue.

Perhaps most telling is the fact that several cadets

involved in the alleged instances of harassment (including

Anderson) resigned, rather than face a commandant's

5 Plaintiff was mistaken as to Saleeby wearing boxer shorts, as

those shorts were obtained for the FBI and by the court. They are thick,

gym like shorts with a company logo and no “flap” or opening as found

on boxer shorts. 85 F. Supp.2d at 619 n.15

13

board. This strongly suggests that these cadets were well

aware that the incidents of alleged hazing would not be

treated lightly.” Id. at 619-620.6

Private conduct constitutes state action only if it

is compelled, or significantly encouraged, by the state, not

when it is merely authorized, or acquiesced in, by the

state. See e.g., Leeds v. Meltz, 85 F.3d 51, 54 (2™4 Cir.

1996)(“extensive regulation and public funding, either

alone or taken together, will not 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’). Here, there was neither authorization nor

acquiescence.

Ill. The Fourth Circuit properly held that upperclass

students at The Citadel were not state actors as

they are no more members of the military than

students attending other state-supported colleges

in South Carolina and as the functions of

military protection and training have not been

delegated to them by the state or federal

governments.

Petitioner’s argument relies heavily upon her

assertion that “it goes without saying that training civilians

for a military career is a traditional governmental function,

since preparing and controlling the military is a central and

exclusive governmental role.” The record makes clear,

however, that

6 Saleeby faced a commandant’s board and was suspended from

the school for one year. Anderson’s resignation precludes his return to

the school. 249 F.3d at 309-310.

14

[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.

Colonel Joseph Trez, Commandant of Cadets,

testified that the primary mission of The Citadel is to

educate students. It does so within a military framework to

prepare its students for postgraduate work as leaders and

- managers of our country. Trez recalled that in 1996, two of

the 1800 students were commissioned officers, and only

because they had attended an early commissioning program

elsewhere. And even those commissions were not federally

recognized until the end of their college years. None of the

cadets involved here-Mentavlos, Anderson, or Saleeby-held

ROTC contracts. It was stipulated that only about one-third

of the Corps of Cadets enters the military upon graduation.

249 F.3d at 314-316. Further, even if the school itself were

performing an exclusive public function, it does not

automatically follow that the students themselves would be

state actors.

15

With respect to other factors of the state action

analysis, it is clear that:

it is not enough that an institution is highly

regulated and subsidized by a state. If the

state in its regulatory of subsidizing function

does not order or cause the action

complained of, and the function is not one

traditionally reserved to the state, there is no

state action. A private school’s discharge of

employees was not state action in spite of the

fact that the school was extensively regulated

and highly subsidized by the state. The

state’s regulatory and funding activities had

not compelled the discharge of those

employees, Rendell-Baker v. Kohn, 457 US.

830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982); see

also Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct.

2777, 73 L.Ed.2d 534 (1982), just as they had

not compelled a private nursing home’s

involuntary transfer and discharge of a group

of Medicaid patients.

Arlosoroff v. National Collegiate Athletic Ass., 746 F.2d 1019,

1022 (4% Cir. 1984). The fact that state assistance has been

given to The Citadel and that its professors and

administrators are state employees is likewise not enough.

Nor are the statutes creating and regulating The Citadel

unique under South Carolina law. The University of South

Carolina receives aid from the State, and similar statutes

regulate the powers and composition of its board of trustees,

its fund-raising activities, and its acquisition of facilities. See

e.g. S.C. Code Ann. §59-117-10, et seg. It simply does not

follow, however, that such regulation and funding would

render the students at such institutions state actors.

16

In support of her argument that the state itself would

consider the students state actors, plaintiff relies upon that

the categorization of The Citadel as a “Senior Military

College” by 10 U.S.C. § 2111a, amended in 1997 in response

to action taken by the Secretary of Defense. The findings of

fact upon which plaintiff relies note “the long-standing

relationship of the Armed Forces with the senior military

colleges” and the interests of the United States Department

of Defense. Plaintiff also cites a line of authority relating to

Section 1983 actions and National Guard officers and

seemingly analogizes the state and federal interrelationship

of that entity to the “special military” status of The Citadel.

Plaintiff continues to cite Alton v. Texas A&M

University, 168 F.3d 196 (5% Cir. 1999), as one of the judicial

opinions which “have assumed that upper-class cadets

imposing discipline on lower class cadets are “state actors.”

A reading of both the Fifth’s Circuit’s opinion and the

district court’s opinion in Alton v. Hopgood, 994 F. Supp. 827

(S.D. Tex.), however, demonstrates that the state action

argument was never pursued by the student defendants in

the Texas A&M case. The Texas district court’s opinion did

not even consider this step in the Section 1983 analysis and

the Fifth Circuit’s language seems to ask why such the state

action argument was not asserted.

Of greater significance is the fact that plaintiff

devotes much of her argument in this section to how

Congress views the unique positions of the six military

colleges and then misses the key step in the argument by

failing to analyze how the state views the students

themselves. In fact, plaintiffs only mention of the state’s

viewpoint during this discussion is to set forth the following

statutory language:

17 ss

All 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 and the Governor shall issue

commissions to such of them as are

designated by the college according to the

rank prescribed by that institution.

S.C. Code Ann. § 25-1-520. But the question here is not

whether the college, board of visitors, administrative staff or

faculty personnel are state actors, but whether student

cadets, under the facts of this case, are. And they are

noticeably absent from this statute, which is the only such

evidence which plaintiff presents in her brief to support the

“state consideration” factor.

Certainly, The Citadel uses a military model

that more closely resembles life at a service

academy than life at most college

campuses—even those offering ROTC

programs. The Citadel is not, however,

primarily in the business of training military

officers. Its mission is the production of "the

whole [person]," not the production of

citizen-soldiers. . . . Plaintiff's theory equating

The Citadel to a service academy is also

troubling in that this court can see 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.

18

Under plaintiff's 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.

Mentavlos, 85 F. Supp.2d at 622-623.

This is not the rare case in which the plaintiff can

complain that any failure of The Citadel to intervene in

actions taken by private persons has given rise to state

action because again, the evidence is undisputed that

plaintiff failed to avail herself of the many resources that

the school made available to her to address any problems

that she might encounter as a freshman cadet. See 249 F.3d at

309-310 (noting that Mentavlos did not voice the majority of

her complaints until just before withdrawing in December).

The District Court and Fourth Circuit properly

concluded “that The Citadel is in the business of providing a

post-secondary education with a goal of assisting students

to achieve a well-rounded development in all spheres of life

and with an emphasis on leadership training. That the

school seeks to achieve these goals through a military model

may make its system of training fairly unique. It does not,

however, convert the primary business of The Citadel into

that of producing military officers. It is beyond dispute that

providing post-secondary education is not traditionally an

exclusive state function. See, e.g., Rendell-Baker v. Kohn, 457

US. 830, 842, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982) (while

providing high school level education is a public function, it

is not traditionally the exclusive province of the state).”

Mentavlos, 85 F. Supp.2d at 624.

The ramifications of finding state action in this case

are dangerous. A holding that student cadets are state

actors, particularly those not specifically in a plaintiff's

chain of command, could convert any state law tort

19

occurring between students into a potential constitutional

claim in the federal courts. The result urged by the

Petitioner could be extended to encompass the students at

all manner of institutions, as the District Court and Fourth

Circuit prudently recognized.

IV. The District Court properly granted summary

judgment to Respondent Saleeby because

Petitioner failed to produce any evidence of

gender-based discrimination on his part.

Here, even if defendant Saleeby could be fairly

categorized as a state actor, the District Court properly

entered summary judgment in his favor as the record

reveals no evidence that Saleeby's actions toward the

plaintiff were in any way motivated by gender bias. "In her

deposition in this action, plaintiff conceded that, with the

exception of the fire incident, Saleeby's actions towards her

were just playful harassment" and that from the beginning,

she felt "that [Saleeby] was a professional cadet." Mentavlos,

85 F. Supp.2d at 615.

It is now evident that Saleeby did not wear "only

boxer shorts" when entering plaintiff's room. Mentavlos at

619 n.15. And even the most cursory glance at the

photograph of the shirt that plaintiff was wearing during

the fire incident confirms that her breasts were in no way

involved. (Appendix at p. ).

Although the District Court held that plaintiff's

evidence of gender motive as to defendant Anderson was

weak, it declined to enter summary judgment in Anderson's

favor on this basis. But as there is no suggestion in the

record that Saleeby 's actions were ever motivated by any

gender-based animus toward the plaintiff, and as his actions

indeed suggest the opposite, the District Court properly

entered summary judgment for Saleeby on this issue as well.

CONCLUSION

For the reasons stated, a writ of certiorari should not

be granted to review the proper decision and judgment of

the Fourth Circuit.

Respectfully submitted,

Sandra J. Senn

Counsel of Record

Stephanie P. McDonald

Post Office Box 12279

Charleston, South Carolina 29422

(843) 556-4045

Counsel for Respondents

Charleston, South Carolina

September 5, 2001

21

TABLE OF CONTENTS

Appendix to Brief in Opposition

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