

                  United States Court of Appeals
                      For the First Circuit
                                           

No. 96-1623

DOUGLAS E. YEO, Individually and on Behalf of His Children and as
      Chairman of the Lexington Parents Information Network,

                      Plaintiff, Appellant,

                                v.

 Town of LEXINGTON, Jeffrey Young, Superintendent, David Wilson,
Principal, Samuel Kafrissen, Karen Mechem and Joseph Dini, Chairman,
  John Oberteuffer, Lois Coit, Susan Elberger and Barrie Peltz,
   Individually and as They Are Members of the Lexington School
                            Committee,

                      Defendants, Appellees.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. Richard G. Stearns, U.S. District Judge]                                                                 

                                           

                              Before

                      Torruella, Chief Judge,                                                      
                  Bownes, Senior Circuit Judge,                                                        
                 Selya, Boudin, Stahl, and Lynch,
                         Circuit Judges.                                                  

                                           

  John W. Spillane, with whom John J. Spillane and Gregory D.  Smith                                                                              
were on brief for appellant.

  Adam  P.  Forman,  with  whom  Lois  Brommer  Duguette,  Sarah  A.                                                                              
Olivier,  and  Testa, Hurwitz  &amp;  Thibeault,  LLP  were on  brief  for                                                         
appellees.

  S.  Mark Goodman,  Michale C.  Heistand,  Robert A.  Bertsche, and                                                                         
Hill &amp;  Barlow for the  Student Press Law Center,  National Scholastic                      
Press  Association,   Journalism  Education   Association,  Scholastic
Journalism Division of the Association for Education in Journalism and
Mass Communication,  Columbia Scholastic  Press Advisers  Association,
New England Scholastic  Press Association, and Yankee  Press Education
Network;  Dwight G.  Duncan for  the  Massachusetts Family  Institute;                                   
James  C.  Heigham,  and  Choate,  Hall &amp;  Stewart  for  Massachusetts                                                          
Newspaper  Publishers Association;  Gwendolyn H.  Gregory, Melinda  L.                                                                              
Selbee, Timothy B. Dyk, John Bukey, Jones, Day, Reavis &amp; Pogue for the                                                                      
National  School  Boards Association,  Illinois Association  of School
Boards, and California School  Boards Association's Educational  Legal
Alliance; Michael J.  Long, Rosann DiPietro,  and Long &amp; Long  for the                                                                     
Massachusetts Association  of School Superintendents, on  briefs amici
curiae.

                                           

                         December 9, 1997
                                           

                         OPINION EN BANC
                                           

                               -2-

          LYNCH, Circuit Judge.   This case, involving speech                    LYNCH, Circuit Judge.                                        

interests  on both  sides, arises  from  the decision  of two

public  high school student publications -- the newspaper and

yearbook  --   not  to   publish  an   advertisement.     The

advertisement promoted sexual abstinence and was proffered by

a parent, Douglas Yeo, in  the aftermath of a decision by the

Lexington,  Massachusetts School  Committee  to  make condoms

available to  students as  a public  health matter.   Yeo had

campaigned against  the condom distribution policy  and lost.

The  two high school student publications declined to publish

the  advertisement on  the grounds  that  each had  a policy,

albeit  unwritten,  of  not  running  political  or  advocacy

advertisements.

          The  civil rights action brought by Yeo against the

Town,  the  School   Committee,  Superintendent   and  school

officials  was terminated  on defendants' motion  for summary

judgment.  The  district court judge concluded that  no state

action had been  shown.  A  panel of  this court, this  judge

dissenting, reversed, holding that summary judgment should be

entered for  Yeo on his  claims that there  was state action,

that each  student publication was a  public forum, and  that

the  decisions not to  publish were impermissible  view point

discrimination.   1997 WL  292173 (1st  Cir. June  6,  1997).

                             -3-

This court  granted en  banc review1 and  withdrew the  panel

opinion.  The  en banc court now affirms the  decision of the

district court  entering summary  judgment for defendants  on

the ground that state action has not been shown.

                         I. The Facts

          We review  the facts in the light most favorable to

Yeo,  the  party  opposing  summary   judgment,  drawing  all

reasonable inferences from the record in his favor.  Swain v.                                                                    

Spinney, 117 F.3d 1, 2 (1st Cir. 1997).                 

A. The Publications                             

          This  case involves  two  distinct  Lexington  High

School (LHS) student  publications, the LHS Yearbook  and the

LHS Musket.  The Yearbook was operated entirely by a staff of                    

about sixty students; all  editorial, business, and  staffing

decisions were made by students.  During the 1993-94 academic

year,  this staff was headed by two co-editors-in-chief, Dow-

Chung Chi and  Natalie Berger.  Karen  Mechem, a LHS teacher,

                                                  

1.   The court  acknowledges the assistance  provided in  the
briefs amici  curiae filed  by the:   National School  Boards
Association,  Illinois  Association  of  School  Boards,  and
California  School  Boards  Association's  Educational  Legal
Alliance;  Massachusetts  Newspaper  Publishers  Association;
Massachusetts Family  Institute; Massachusetts Association of
School  Superintendents; Student  Press Law  Center, National
Scholastic    Press    Association,    Journalism   Education
Association,   Scholastic    Journalism   Division   of   the
Association   for   Education    in   Journalism   and   Mass
Communication,    Columbia    Scholastic    Press    Advisers
Association, New  England Scholastic  Press Association,  and
Yankee Press Education Network.

                             -4-

was the Yearbook faculty  advisor.  Mechem was paid a stipend

of less than  $2,000 for that activity.   Apart from Mechem's

stipend  and the  use of  LHS buildings  and facilities,  the

Yearbook  is financially independent  from the school  and is

funded entirely through the sale of the books to students and

advertising.

          Like  most  yearbooks,  the  LHS Yearbook  included

pictures of seniors  and other students, sections  on sports,

academics,  and  activities,  and  an  advertisement section.

This   advertisement  section   was   largely   comprised  of

congratulatory or commemorative ads purchased by students and

their  families.    As the  Yearbook  advertising  order form

suggested, student ads might  include "[b]aby pictures, group

photos taken in the  setting of your choice, [or] pictures of

meaningful  people and/or places."  A few advertisements were

also  sold  to  local  businesses;  most  of  these  included

congratulatory messages to the graduating class.

          During the  1993-94 academic  year, the  Yearbook's

unwritten  policy was  to publish  advertisements  from those

local  businesses which the  students frequented or  had some

relationship with during their high school years.  In keeping

with  this  policy,  students  selling  ads   targeted  those

businesses that fit the Yearbook theme of fond memories.  The

Yearbook's  policy  was  not  to  publish  any  political  or

advocacy  advertising,  including  ads  from  candidates  for

                             -5-

student government.2   The  purposes of this  policy were  to

ensure  that  the  advertising section  of  the  Yearbook was

congruent with the rest of the publication and to prevent the

Yearbook from becoming  a bulletin board for  competing issue

groups or candidates  in a way that  would interfere with the

commemorative purpose of the Yearbook.

          The  LHS Musket  is  a student-written  and  edited                                   

newspaper that is published four  or five times a year.   All

editorial,  operational, and  staffing decisions are  made by

the student editors.  During the 1993-94 academic year,  Ivan

Chan  served as the  Musket's editor-in-chief, Dong  Shen was                                     

the  business manager, and  Samuel Kafrissen was  the faculty

advisor.  Students do not seek or obtain the approval of  the

faculty advisor for any  editorial or operational  decisions.

Kafrissen is paid a stipend of $1,373 by  LHS, and the Musket                                                                       

receives about $4,500 a  year from the School Committee.  The

Musket has no  physical facilities at LHS,  other than a mail                

box; all  the layout  is done  at editors' homes.  The Musket                                                                       
                                                  

2.  The  record does not reveal whether political or advocacy
advertising other than the  ad giving rise to this litigation
was ever submitted  to the Yearbook or  the Musket.  However,                                                            
those affiliated  with the  Yearbook and  the Musket  believe                                                              
that  neither  has  ever published  a  political  or advocacy
message  or accepted  an  advertisement from  a political  or
advocacy  organization.    Yeo  offers  no  evidence  to  the
contrary,  and  the  record, which  contains  the advertising
sections   of  several   Yearbooks,  bears   out  defendants'
description  of  the  types   of  congratulatory  advertising
printed.  No  evidence was produced that  the Musket had ever                                                              
printed a political or advocacy advertisement.

                             -6-

typically includes  news  articles  about  the  high  school,

features, editorials, letters to the editor, sports coverage,

and  humor  columns,  all written,  edited,  and  produced by

students.   The Musket is described in literature distributed                                

to the student body  as being a "student run newspaper" which

is  "written,  edited and  distributed  by  students."    The

editorial  page bears  a  legend stating  expressly that  the

opinions  stated there  are those  of the student  editors or

newspaper staff and not of school policy.

          Not every issue of the Musket contains advertising.                                                 

Those that do contain  two or three small ads from businesses

that  cater  to student  tastes.    During the  1990s,  those

advertisers have included a bookstore, a video store, a music

store,  a driving  school,  a deli,  a hair  salon,  SAT prep

courses, and, around  prom time, a tuxedo  rental store and a

dress shop.  For  the 1993-94 school year, the Musket created                                                               

an  "Advertisement Form" for potential advertisers.  The form

stated that: "The award winning Lexington High School student

newspaper   provides    area   businesses    and   non-profit

organizations the opportunity to  place advertisements in the

Musket."   The form  did not state  that ads  were subject to                

editorial approval, although  it did note that,  depending on

the issue, ad size  might have to be  adjusted and ads  might

have to  be edited, by  the paper's staff,  for length.   The

                             -7-

form  also stated that "[p]ayment . . .  for an ad will occur

only if and after we publish an ad." (emphasis added).                 

          Pursuant  to an  unwritten  policy, the  Musket has                                                                   

never accepted  advocacy or  political advertising, including

that from candidates for student government.   The purpose of

this  policy  was  to  prevent the  Musket  from  becoming  a                                                    

"bulletin board" for  warring political ideas.   The students

also rejected the idea of allowing cigarette ads in the paper

for  fear  that   such  advertising  would  be   read  as  an

endorsement of smoking.

B. Yeo's Submission of Advertisements                                               

          In 1992,  the Lexington School  Committee adopted a

policy  making condoms available  to students at  LHS without

parental  permission.    This  measure  was  the  subject  of

political controversy in  Lexington, and Douglas Yeo,  a town

resident and parent, emerged as a  leading opponent of condom

distribution  and other  "safe sex"  policies.  Yeo  headed a

group  called  "Lexington  Citizens  for  Responsible  School

Policy," which  sponsored a  non-binding town-wide referendum

on the School Committee's condom policy.

          The Musket ran both news articles and editorials on                              

the policy  and the referendum.   Yeo  thought these articles

misrepresented  his group's position.   In January  1993, Yeo

requested  a   meeting  with   LHS  Principal  David   Wilson

concerning his grievance.  Wilson suggested that Yeo submit a

                             -8-

letter to the editor correcting the alleged inaccuracies, but

advised  Yeo that  any decisions regarding  corrections would

have to be made by the  student editors.  Yeo did not contact

the student editors.   In March 1993, the voters of Lexington

approved the condom distribution policy. 

          Subsequently,  in   May  1993,   Yeo  founded   the

Lexington Parents  Information Network  ("LEXNET").  LEXNET's

stated  goal  was  to  distribute  information  about  public

education to parents via newsletters and meetings.

1. The Yearbook Ad                            

          On  November 1, 1993,  Yeo, as Chairman  of LEXNET,

submitted a full  page ad to the  1994 LHS Yearbook.   The ad

copy read:

                    We know you can do it!
                ABSTINENCE: The Healthy Choice
  Sponsored by: Lexington Parents Information Network(LEXNET)
     Post Office Box 513, Lexington Massachusetts 02173.

The ad was accompanied by a check for $200.00. 

          Mechem, the  Yearbook advisor, acknowledged receipt

of the  check and placed the ad in a drawer without giving it

a second thought.   In keeping with Yearbook procedures,  the

LEXNET ad was "warehoused" in a drawer with other ads pending

submission  to  the  publisher for  the  printing  of proofs.

Natalie Berger, a  senior and co-editor-in-chief, noticed the

ad in the  drawer and felt that  the ad was "out  of context"

with the  advertising section of the  Yearbook.  However, she

                             -9-

decided to postpone a publication decision until she saw  the

ad in proof form, which was typically when critical editorial

decisions were made.

          In  January   1994,  a  large   number  of  proofs,

including those of Yeo's ad, came back from the printer.  All

the  student editors attended  an editorial meeting  at which

they  looked over  the  various  ads and  copy.    After much

discussion, the editors decided that Yeo's ad was a political

advocacy statement that  was out of context  with the rest of

the Yearbook  and  that  had no  place in  that  publication.

Although the  students decided to  reject the  ad as drafted,

they still wished to include a message  from LEXNET if the ad

could be rewritten to  conform with the rest of the Yearbook.

The students did not  consult with Mechem or any other member

of  the  faculty  or  administration  prior  to  making  this

decision.

          The  Yearbook editors asked Mechem to notify Yeo of

their decision.   The students  also asked  Mechem to  convey

their  request  that  Yeo's  ad  be  revised  to  express   a

congratulatory graduation  message.   On  February  1,  1994,

Mechem called Yeo, and  told him that the students would like

to  have the ad rewritten.  Yeo refused  to revise the ad and

threatened to sue the Yearbook unless his ad was published as

submitted.

                             -10-

          The student editors discussed the issue  again, and

decided to  stand by their original  decision to reject Yeo's

ad.  They asked Mechem  to write to Yeo, returning his check.

On February 4, Mechem wrote to Yeo:

            Because of the non-controversial nature
          of   the  advertising   section   of  the
          yearbook, we  have decided  not to  print
          the  advertising   you  have   submitted.
          Please  accept   my  apologies   for  the
          inconvenience    that    our    reviewing
          procedure may have caused.

A $200  check was  enclosed.   Mechem  told Principal  Wilson

about Yeo's ad and the students' decision to reject it.

          Yeo replied by fax on February 13, 1994, writing:

            Based on our understanding of the right
          of  equal access  and free speech,  we do
          not accept your  rejection of our  ad and
          ask that you reconsider  your decision to
          censor it.   We will not be  cashing your
          check at this time.
            Should you  not reverse  your decision,
          we will avail ourselves of every possible
          avenue open to us in order to protect our
          rights as advertisers.

          2. The Musket Ad                                    

          On  January  3, 1994,  Yeo wrote  to  Dong Shen,  a

senior and  the business  manager of  the Musket,  requesting                                                          

information about  advertising  procedures  and rates.    The

letter was not on  LEXNET stationary and did not identify Yeo

as a member of that group.   Receiving no reply, Yeo wrote to

Shen again on January 20, requesting the information "as soon

                             -11-

as  possible," and copying Ivan Chan, the editor-in-chief, on

the letter.

          On January  25, Shen  wrote to  Yeo, providing  the

requested information and taking full personal responsibility

for the  delayed response.   Shen  concluded by  noting,  "Of

course ads are still subject to the approval of the editorial

board."

          On  February 1,  1994, Yeo  submitted an ad  to the

Musket.  The text was identical to the Yearbook ad previously                

submitted,  except that, above LEXNET's address, it contained

the  line: "For accurate information on abstinence, safer sex

and condoms, contact:[LEXNET]."

          The  student editors of the Musket discussed the ad                                                      

extensively.   In  mid-February,  they met  and decided  that

Yeo's  ad constituted a  political statement that  they would

not run as  a matter of policy.   On February 24,  1994, Shen

wrote to Yeo:

          After  careful   consideration  of   your
          advertisement  from  LEXNET,  the  Musket
          came  to the  difficult  decision  of not
          printing it.   In no  way did we want  to
          limit your right to express your opinion,
          but  we  could  not  accept  a  political
          statement as an  advertisement.   Our own
          advertisement policy dictates so for good
          reasons.     If  we  were   to  accept  a
          politically aligned advertisement,  we at
          the Musket would feel obligated to accept
          other  political  statements  that  might
          come  our way.    We do  not wish  to put
          ourselves in  such position.   Ultimately
          Ad  space is not  a public forum  and for

                             -12-

          that reason the Musket reserves the right
          to select  what Advertisements it chooses
          to  print.  If you have any question feel
          free to contact the Musket.

          The  decision was made,  and the reply  written, by

the student editors without consulting Kafrissen,  the Musket                                                                       

faculty advisor,  or requesting  his, or  any other  adult's,

approval.   In fact,  Kafrissen did  not even know  about the

ad's submission until the time of the editorial  meeting, and

did not see the ad  or the students' response until after the

reply had been sent.

          Sometime the  next week,  Principal  Wilson  called

Kafrissen  and  informed him  that Lexington's  Town Counsel,

Norman  Cohen, had been contacted by Yeo's lawyer; the lawyer

had threatened to sue  the town and the school authorities if

the ad was not run.  Cohen  thought that it would be best  to

avoid a lawsuit and requested that the students publish Yeo's

ad.   Kafrissen  and  Wilson agreed  to look  into  the legal

issues in  greater depth and  to discuss the  matter with the

students.  On  March  1,  1994, the  student  editors  of the

Musket met  with Kafrissen.  Kafrissen informed them of Yeo's                 

actions.   Although  a  number  of students  at  the  March 1

meeting  supported  Yeo's  pro-abstinence  views,  they  were

concerned that the  Musket might turn  into a  bulletin board                                    

for advocacy on lifestyle issues.  Additionally, the students

were uncomfortable  with having to run  an ad because someone

                             -13-

had threatened to sue them if they did not.  The editors once

again  decided to  reject the  ad.   They asked  Kafrissen to

contact  Yeo and  to invite  him to  present  his views  in a

"letter to the editor." 

          Kafrissen,  on behalf of  the Musket, wrote  to Yeo                                                        

that day.  In  the letter, Kafrissen suggested that Yeo write

a letter to the editor:

          We have  long considered  the Letters  to
          the  Editor section of the Musket to be a
          public  forum.     Historically  we  have
          accepted  and printed on these  pages any
          and all "short and tasteful" letters that
          have come to us.  We would welcome such a
          letter  from your  organization  in which
          you would  probably be  able to explicate
          your  position on  abstinence  more fully
          than  you  would be  able  to  in  an  ad
          format.  We have heard that you feel that
          school  publications  have  prevented you
          from  presenting   your  message  to  the
          student body.   Therefore we suggest that
          you use  the medium  of a  letter to  get
          your  message across  in  greater detail,
          and without charge. 

The letter concluded  by noting that, if Yeo  were successful

in forcing  the Musket to print  the ad, this would  have the                                

negative consequence  of removing editorial  control from the

student staff.

          Yeo declined  the offer on  March 7 in  a letter to

Kafrissen.     In  that   letter,  Yeo  explained   that  his

organization decided to sponsor the ads for two reasons: 

          Firstly,  we  had  a  simple  message  we
          wanted  to  get  out  that  would  affirm
          abstinent students  in the LHS community.

                             -14-

          .  . .  There is nothing controversial or
          political in  our message.   Secondly,  I
          wanted to see if the Musket and  Yearbook                                               
          would  react  as  I  thought they  would.
          They did.  In spades.

Accordingly, Yeo  declined to write  a letter  to the editor,

which, he felt, could  not make the point as concisely  as an

ad could.  Yeo insisted that  the ad be run as submitted, "as

is our legal right,"  and concluded, "You don't have to agree

with it.  You don't even have  to like it.  You just  have to

print it.  Touch ."

C. The Administration's Response and the Students' Decisions                                                                      

          On  March  1, Yeo  met  with  Principal  Wilson  to

discuss the ads.   Yeo believes that, at that meeting, Wilson

assured him that the ads would be printed, and told him  that

the Town Attorney had advised publication. 

          Meanwhile,  as   the  controversy  heightened,  the

students and faculty  alike were seeking advice  from various

sources.     Mechem  told  Wilson  that  Dow-Chung  Chi,  the

Yearbook's co-editor-in-chief,  had asked  her: "If  we don't

print the ad,  what law are we  breaking?"  In an  attempt to

answer his question,  Mechem talked  with Wilson,  Kafrissen,

and the Student Press Law Center in Washington, D.C.  Several

of the student editors  of the Musket and the Yearbook sought                                               

advice  from the  Student  Press  Law Center  and  the  Civil

Liberties Union of  Massachusetts, as well as  from attorneys

they knew  personally.    The students  were  told  by  these

                             -15-

various  sources  that, under  the  federal Constitution  and

Massachusetts  law, student editors  had the right  to decide

what was printed in their publications.

          On  March  11,  1994,  LHS  officials  and  student

editors met in the office  of the Superintendent of  Schools,

Jeffrey Young.   Yearbook  editors-in-chief Berger  and  Chi,

Musket editor-in-chief  Chan, advisors  Kafrissen and Mechem,                

Superintendent Young  and Principal Wilson  attended.   Young

asked questions  to  determine what  the students'  reasoning

was, and to  determine that they had  engaged in a thoughtful

process prior to the meeting.  The administrators and faculty

were impressed with the way the students outlined the issues.

Young concluded by  stating that he would  like to do further

research and to obtain legal advice.

          In  mid-March,   Musket  editor-in-chief  Chan  was                                           

approached by a group  of students who were offended by Yeo's

efforts and who wished to place a "counter ad" in the Musket.                                                                      

The proposed ad looked  exactly like Yeo's ad except that, in

place of "Abstinence: The Healthy Choice," it read "Safe Sex:

The Healthy Choice."   Chan decided to reject the counter-ad,

and informed the staff that it would not be published.  

          On March  13, Chan called  a meeting  of the entire

Musket staff; Kafrissen was not  invited and did not  attend.                

At  that meeting,  Chan  briefed the  students on  the events

                             -16-

surrounding  the submission  of Yeo's ad.   The student staff

unanimously opposed publication of Yeo's ad.

          On  March  18,   a  second  meeting  was   held  in

Superintendent  Young's office.    In addition  to the  prior

participants,  Lexington School  Committee  members attended.

(LHS  Assistant  Principal  Lawrence   Robinson  attended  in

Principal Wilson's stead).   The Musket and  Yearbook editors                                                 

reiterated  their  refusal  to  run Yeo's  ads.    The school

officials and School Committee members warned the students of

the  possible  consequences   of  their  decision,  including

litigation, and  described the  potentially unpleasant  media

exposure  the students could  expect.  Although  the students

felt that the school  officials wanted them to print the ads,

the officials maintained  that it was the  students' decision

to  make.   The  students  were  repeatedly advised  that the

ultimate decision about publication of the advertisement  was

theirs to make  and the school administration would  stand by

their decision.  

          Following the March 18th meeting, Chan held several

further discussions  with  individuals and  groups  from  the

Musket's  staff.   Finally,  with the  staff's support,  Chan                

conclusively  decided not  to  run Yeo's  ad as  a  matter of

policy.

          On  April 11,  1994,  the Superintendent  again met

with the  Musket staff and  again told them  the decision was

                             -17-

theirs.    Throughout Young's  tenure as  Superintendent, the

Musket  has  been  operated  as  an  independent  student-run

newspaper and he has never authorized any school  official to

interfere with  the students'  decision on  what to  publish.

Yeo offers no evidence to the contrary.

          As for the Yearbook, Chi and Berger asked Mechem to

invite Yeo,  on the students'  behalf, to a  meeting at which

alternatives could  be  discussed.   Yeo wrote  to Mechem  on

March 28,  informing her that,  on the advice  of counsel, he

would  not be  able  to meet  with the  student  editors, and

requesting that  all further  inquiries be  addressed to  his

lawyer at the Rutherford Institute in Virginia.

          Berger  then called a  meeting of all  the Yearbook

section  editors.   Mechem  attended  the  beginning  of  the

meeting  and  urged  the  students  to  consider  the  school

officials' advice.    Mechem  then left  the  meeting.    The

students discussed the issues raised at the March 18 meeting.

The  students reaffirmed their  decision to reject  Yeo's ad.

Chi  and Berger  then drafted a memo  to Superintendent Young

and the School Committee.  It concluded:

          After much  discussion and  deliberation,
          the  reasons  for  our  decision  are  as
          follows.        The    nature   of    the
          advertisement, which  promotes a style of
          life, regardless of the message, does not
          coincide with  that of  the rest  of  the
          advertisement  section  of  the yearbook.
          The   inclusion    of   this    type   of
          advertisement  would  also  establish  an

                             -18-

          unsuitable  precedent for  the  future of
          the yearbook.  

This litigation followed.

          During  the 1994-95  school year,  the new  student

editors  of   the  Yearbook   decided  not   to  accept   any

advertisements other  than  personal notes  from parents  and

students.  Yeo  resubmitted his ad in  September 1994, but it

was rejected under the  new policy.  The 1994-95 Musket staff                                                                 

drafted explicit "Advertisement  Policies and Procedures," to

be distributed  with advertisement  forms, which  states  the

type  of  advertisements,  including  those  from  "political

organizations,  referendum  issues,  advocacy  groups,  [and]

public service organizations,"that the Musket will not print.                                                       

          The newspaper  in  its  news pages  gave  extensive

coverage   to  the  controversy  between  it  and  Yeo,  thus

providing Yeo with coverage of his pro-abstinence position.

                   II.  Procedural History

          Yeo's  action under 42  U.S.C.   1983  alleges that

the   refusal  of   the   two  publications   to  print   the

advertisements violated his  rights to free speech  and equal

protection  under the U.S.  Constitution and  Art. 16  of the

Massachusetts  Declaration of  Rights.   Yeo  sued the  Town,

School  Committee,  Superintendent,  Principal,  and  faculty

advisers but did not name the students as defendants.

                             -19-

          The  defendants  moved   for  summary  judgment  on

various grounds,  including, inter  alia, the  lack of  state

action, that no public forum had been created,  and qualified

immunity.  Yeo opposed summary judgment, but did not submit a

statement of disputed facts in opposition to summary judgment

as  required  by   Local  Rule   56.1  of  the  District   of

Massachusetts.  Yeo conceded at his deposition that he had no

personal knowledge of the decision making  processes followed

by   the  Yearbook  and   the  newspaper  in   rejecting  his

advertisement.  The  district court granted summary  judgment

on the state action  issue without reaching the other issues.

We affirm on the same ground.

                      III. State Action

          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.3  If there is no state action, then the court
                                                  

3.  The  'under color  of law'  requirement of      1983 "has
consistently been  treated as  the same thing  as the  'state
action'  required  under  the  Fourteenth  Amendment," United                                                                       
States v.  Price, 383 U.S. 787, 794 n. 7 (1966).  Indeed, the                          
Supreme Court has  reversed an appellate court  which treated
the two analyses as separate.  Lugar v. Edmonson Oil Co., 457                                                                  
U.S. 922, 924, 928,  929 (1982).  This court has consistently
treated the analyses  as the same.   See Barrios Velazquez v.                                                                    
Asociacion  de  Empleados,  84 F.3d  487,  490-491  (1st Cir.                                   
1996).   Where the statutory and constitutional inquiries are
inextricably  intertwined,  decision   of  the  state  action
question is hardly a breach of the obligation to decide cases
on  statutory  grounds  in  order   to  avoid  constitutional
questions.  We  do not engage in a  separate   1983 analysis,

                             -20-

may  not  impose  constitutional  obligations  on  (and  thus

restrict the freedom of) private actors.4 

          This  is a situation in which the government actors

--   the  school  officials acting  under a  statute5  of the
                                                  

nor do  we  reach  the issue  of municipal  liability,  under
Monell v. Department of Social Services, 436 U.S. 658 (1978),                                                 
or   of  qualified   immunity   claimed  by   the  individual
defendants.  The  district court ruling did  not reach any of
these issues.   Judge  Stahl's concurrence  suggests that  we
leap over the question of state action to address a statutory
issue  of  causation, an  unusual  approach.    The  question
whether  Yeo  even  has a  First  Amendment  right  to assert
depends on whether there  is state action.  The Supreme Court
and the circuit court cases described above have consistently
addressed  the  state   action  question   before  addressing
questions of causation.   See also Polk County v. Dodson, 454                                                                  
U.S.  312,  325  (1981)  (examining     1983  defense  of  no
municipal custom  only after  examining state  action issue).
Further, courts ordinarily address questions of  jurisdiction
first, and the presence  of state action is "a jurisdictional
requisite for a   1983 action."  Id. at 313.                                              

4.  See, e.g., Edmonson  v. Leesville Concrete Co.,  500 U.S.                                                            
614,  619-20 (1991) (discussing  the relevance of  the "state
action" requirement to private freedom).

5.  Mass. Gen. Laws ch. 71  82 provides, in pertinent part:
          The  right  of  students  to  freedom  of
          expression in  the public  schools of the
          commonwealth  shall   not  be   abridged,
          provided that such right shall not  cause
          any  disruption  or  disorder within  the
          school.    Freedom  of  expression  shall
          include  without  limitation,  the rights
          and    responsibilities    of   students,
          collectively and individually,  . .  . to
          write,  publish  and   disseminate  their
          views  . .  . .    No expression  made by
          students in the  exercise of  such rights
          shall  be deemed  to be an  expression of
          school  policy  and  no school  officials
          shall be held responsible in any civil or
          criminal action  for any  expression made
          or published by the students. 

                             -21-

Commonwealth  of  Massachusetts --    have  chosen  to  grant

editorial autonomy to these  high school students.  The state

action analysis is thus placed squarely in a very complex and

changing area of law.

          The modern  state action  decisions of  the Supreme

Court  do  not  rely  on  a  single  analytic  model  applied

regardless of the fact patterns involved.  As this Court once

observed,  the  "state action  inquiry is  'necessarily fact-

bound.'"   Ponce v. Basketball Federation of the Commonwealth                                                                       

of Puerto  Rico, 760 F.2d  375, 377 (1st  Cir. 1985) (quoting                         

Lugar  v. Edmondson Oil Co., 457  U.S. 922, 939 (1982)).  The                                     

analytic  model  used  must  take  account  of  the  specific

constitutional claim  being  asserted, here,  one  under  the

First Amendment.6   Cf. Polk  County v. Dodson,  454 U.S. 312                                                        

(1981)   (state   action   inquiry    shifts   depending   on

                                                  

Mass. Gen.  Laws ch. 71,   82; see also Pyle v. School Comm.,                                                                      
667  N.E.2d  869  (Mass.  1996)  (holding  that  the  statute
protects even  vulgar speech  so  long as  no  disruption  or
disorder results).   We express no view  on whether state law
would have  permitted the  school to  override the  students'
decisions.  As we explain, the state's student speech law may
be a factor in the state action inquiry, but the issue for us
is ultimately one of federal constitutional law.  

6.  The "search  for state action  . . .  ends by identifying
the   precise   substantive   constitutional   issue  to   be
addressed."   Tribe, American  Constitutional Law    18-6, at                                                           
1715  (2d ed. 1988).   See  also 1  Nahmod, Civil  Rights and                                                                       
Civil Liberties  Litigation: The Law of Section  1983   2.04,                                                               
at 63 (3d ed. 1991)("[S]tate action is not a unitary concept,
but  varies   depending  on   the  constitutional   violation
asserted.").  

                             -22-

constitutional  question asked).  "Faithful  adherence to the

'state action' requirement  . . . requires  careful attention

to  the  gravamen  of the  plaintiff's complaint."    Blum v.                                                                    

Yaretsky, 457  U.S. 991, 1002  (1982).  As  the Supreme Court                  

has noted:

          We  recognize that  the  First Amendment,
          the terms of which apply to  governmental
          acts  ordinarily  does  not itself  throw
          into constitutional  doubt the  decisions
          of  private citizens  to  permit,  or  to
          restrict,  speech  --   and  this  is  so
          ordinarily  even  where  those  decisions
          take  place within  the  framework  of  a
          regulatory regime . . . .

Denver   Area   Telecomm.   Consortium,   Inc.   v.   Federal                                                                       

Communications Comm'n, 116 S. Ct. 2374, 2383 (1996).                               

          The  state  action  issue  implicates  a myriad  of

players, only  some of  whom are  defendants.  Yeo  sued only

those  individuals  who  are  public  school  administrators,

teachers, or members of the Lexington School Committee.  They

are  concededly state  actors.   He did  not sue  the student

editors.   But  the "action"  of which  Yeo complains  was an

action taken by the  students.  The "actions" he assails were

the editorial  judgments not  to publish  his  advertisement.

Those  judgments  were made  by  the  students, who  are  not

parties.

          There  are  expressive interests  involved on  both

sides of this case.   Yeo's are obvious.   Those on the other

                             -23-

side are  perhaps less obvious.  The  identification of these

interests puts the state action question in context.  

          If the actions by the students are themselves state

action  or may  be  attributed to  the  school  officials and

provide  the basis  for  state action,  the inevitable  legal

consequence will be  some level  of judicial scrutiny of  the

students'  editorial judgments.7    The  inevitable practical

consequence will be greater official control of the students'

editorial  judgments.     Both  consequences   implicate  the

students'  First  Amendment interests,  which  are  far  from

negligible.   Cf. Hazelwood  Sch. District v.  Kuhlmeier, 484                                                                  

U.S.  260 (1988)  (acknowledging but  ruling  against student

speech  interests when  school  officials  overrode students'

editorial judgments and withdrew certain  material from pages

of high  school newspaper);  Miami Herald  Publishing Co.  v.                                                                   

Tornillo,  418 U.S. 241,  252 (1974) ("[I]mplementation  of a                  

remedy such  as [government]  enforced access" to pages  of a

private  newspaper  "brings about  a  confrontation  with the

express  provisions of the  First Amendment and  the judicial

gloss on that Amendment developed over the years.").

                                                  

7.  We   do  not  accept  the  suggestion  of  Judge  Stahl's
concurrence that the students are private actors with respect
to  reporting and  editorializing and that they  are not with
respect to the advertising  decisions.  Whatever role such  a
distinction may play in  a limited public forum analysis, the
distinction offers little assistance here.

                             -24-

          In   addition,  the   defendant   school  officials

themselves  have  an  interest  in  their  autonomy  to  make

educational decisions.   The  officials have determined  that

the best way to teach journalism skills is  to respect in the

students' editorial judgments a degree of autonomy similar to

that exercised by  professional journalists.  That  choice by

the officials parallels the allocation  of responsibility for

editorial  judgments made by the First Amendment itself.  The

Supreme   Court  has  "oft  expressed  [the]  view  that  the

education   of   the  Nation's   youth   is   primarily   the

responsibility  of  parents, teachers,  and  state  and local

school officials, and not of federal judges."  Hazelwood, 484                                                                  

U.S. at 272.

          The leading Supreme Court decisions concerning high

schools and students are all meaningfully different from this

case, and thus provide  little guidance on  the state  action

question.  Each  of those cases involved  a claim by students

that  the actions  of public  school  administrators violated

their  constitutional  rights.   For  example,  in Hazelwood,                                                                      

plaintiff  students contended  that  officials  violated  the

First Amendment by deleting articles  from student newspaper.

State action was simply not at issue in Hazelwood because the                                                           

                             -25-

relevant actions  were  admittedly  taken  by  public  school

officials.8   Id., 484  U.S. at  264.   The same  is true  of                           

earlier  decisions,  all  of  which  involve  student  claims

against  those running  the schools.    Bethel Sch.  Dist. v.                                                                    

Fraser, 478  U.S. 675  (1986)(civil rights  claim by  student                

disciplined  by  officials   for  language  used   in  school

assembly);  Tinker v.  Des Moines Indep. Sch. Dist., 393 U.S.                                                             

503 (1969)(student claim that principals' regulation  against

armbands  violated First  Amendment); see also  Vernonia Sch.                                                                       

Dist.  v. Acton, 515 U.S. 646 (1995)(student Fourth Amendment                         

claim  against  school  district).   Here,  in  contrast, the

question  is whether the actions by  students may fairly lead                                                       

to a conclusion there is state action.

          Each  court of  appeals  which has  considered  the

state  action  requirement in  the  context  of  attempts  to

attribute  student-controlled editorial  decisions  in public

institutions of  higher  education  to public  officials  has

found no  state action.  In   Leeds v. Meltz,  85 F.3d 51 (2d                                                      

Cir.  1996),  the court  found no  state action  where school

                                                  

8.  Thus,  when  the  Supreme  Court  in  Hazelwood discusses                                                             
whether   "school-sponsored   publications   that   students,
parents,  and members of the public might reasonably perceive
to bear the imprimatur of  the school," 484 U.S. at 271, that
discussion  was pertinent to whether  there was an  intent to
create a public forum.  Hazelwood did not create  a new state                                           
action analysis  that  any  school sponsored  activity  which
bears  an imprimatur  of  the school  thus constitutes  state
action.  

                             -26-

officials and students were sued over the decision by student

editors of  a newspaper  in a  state supported law  school to

reject an  ad.    See id.  at  55.   In  Sinn  v.  The  Daily                                                                       

Nebraskan, 829 F.2d 662,  665 (8th Cir. 1987), the court held                   

that there  was no state action in the refusal to print an ad

where the student paper "maintains its editorial freedom from

the state."  In  Mississippi Gay Alliance  v. Goudelock,  536                                                                 

F.2d 1073, 1075 (5th Cir. 1976), a similar result was reached

in a suit  against the  newspaper editor  where the  students

elected the editor  and university officials did  not control

or supervise  editorial judgment about  what to  publish.  In

Avins  v.  Rutgers, 385  F.2d  151,  153-54 (3d  Cir.  1967),                            

without expressly  discussing  the state  action  issue,  the

court held that  a state-supported law review's  rejection of

an  article  did not  violate  the  First  Amendment  because

editorial discretion is a necessary component of publishing a

journal.  Yeo argues that cases involving public universities

are not on point, given  the state's potentially greater role

in controlling the behavior of younger, high school students.

But it is  also true  that the autonomy  given to these  high

school   students  renders   them  more   like  their   older

counterparts and renders those cases highly relevant.  

          The only decisions we have 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

                             -27-

government officials.   The decision by the  Ninth Circuit in

Planned  Parenthood of Southern  Nevada Inc. v.  Clark County                                                                       

School District, 941 F.2d 817 (9th Cir. 1991),  is inapposite                         

as state  action was  conceded.   There the  school officials

themselves controlled the  school publications and decided to

reject the  advertisement from  the  plaintiff  organization.

Id.  at 820.  Likewise, in Lee v.  Board of Regents, 441 F.2d                                                             

1257  (7th Cir.  1971), state  action was conceded  where the

student newspaper was a "state facility".

          While all parties appropriately point us toward the

state action analysis in  Rendell-Baker v. Kohn, 457 U.S. 830                                                         

(1982), that  case is  rather the  mirror of this.   Rendell-                                                                       

Baker involved  a claim  that private  school officials  were               

state actors.  Here the claim is that public school officials

may be sued based on the  actions of students.  The  students

are themselves at least facially private actors.

          The   theories  for  (and  against)   state  action

basically  devolve here  into three  categories  of analysis.

First, is  there state  action because the  decisions not  to

publish were  actually made  by or  controlled by  the school

officials?  (Even if  the decisions were not directly made by

the school  officials, those officials,  Yeo argues,  exerted

such influence as effectively to determine the outcome of the

student decisions.)  This is primarily a factual question.  

                             -28-

          Second, even if  the state did not  actively direct

or  control  the   decisions,  was  the  state   required  to

intervene, and  to do so in such a way  as to provide a basis

for  a state action finding?   This is primarily  an issue of

law.  

          Third,   even   if   the    decisions   were   made

independently  by  the  students, may  the  decisions  of the

students fairly  be  attributable  to  the  school  officials

because of the public school setting?  The material facts are

undisputed;  the question  is  what conclusion  to draw  from

these facts.  We take each argument in turn.

                              A.

          Yeo  argues  that  the   decisions  were  made   or

controlled in fact  by the  school officials, but the  record

does not support that  conclusion.9  The students and each of
                                                  

9.  Yeo calls  our attention  to the  fact that  the advisors
authored some of the correspondence, using the term "we," and
to  the  fact   that,  on  a  separate   occasion,  Kafrissen
threatened to resign if the students did not take his advice.
It is  true that Kafrissen and  Mechem used the  word "we" in
letters  to Yeo.    However, the  letter  from  Kafrissen was
written  after  Dong   Shen  had  already  communicated   the                        
students'  rejection of  the  ad  to Yeo.    As  for Mechem's
correspondence, Mechem  and the  Yearbook editor  both stated
unequivocally  that the  decision  was made  by the  students
prior to consultation  with Mechem, and that  Mechem wrote to
Yeo  at  the student  editors' request.    As to  Kafrissen's
threat to resign, the incident only serves to illustrate that
Kafrissen did not  believe he had the  authority to order the
students around.   His actual description  of the incident is
as follows:

                             -29-

the involved school officials say that the students, and  not

the school  officials, made  the decision.   Yeo  has offered

nothing to contradict that.

          Nonetheless, the state  action cases recognize that

government should not  be shielded when it  is the real actor

behind the scenes  or when it joins in  a charade designed to

evade constitutional prohibitions.   See Terry v.  Adams, 345                                                                  

U.S. 461  (1953)(Democratic Party  "club" was  a state  actor

designed to  evade constitutional  prohibition  against  all-

white  primaries); cf. Morse v. Republican Party of Virginia,                                                                      

116 S. Ct. 1186 (1996).  That is not true here.  This is also

not an  instance in  which the  government knowingly  profits

from the  racially  discriminatory behavior  of  a  privately
                                                  

          I have  never ordered (nor do I  have the authority
          to  order)  the  student  editors  not  to  run  an
          editorial,   news   or  feature   article  or   any
          advertisement.   I have used persuasion  to address
          matters  that   seemed  over-the-line.     On   one
          occasion, for  example, when  I disagreed  strongly
          with  a proposed  student editorial,  which, in  my
          opinion, took  an extremely irresponsible position,
          I was prepared to resign  if my advice to  withdraw
          the  editorial  was  not  accepted.    The  editors
          engaged in  an extensive debate and  consulted with
          their  parents before finally agreeing  to withdraw
          the editorial.
There is nothing in the record even to suggest that Kafrissen
engaged  in such persuasive techniques with regard to the Yeo
ad;  rather,  the uncontradicted  evidence is  that Kafrissen
took prophylactic measures  to ensure that the  students felt
free to make their own  decision.  At bottom, Yeo's  claim of
control  amount  to  no  more  than "conclusory  allegations,
improbable inferences, and unsupported allegations."  Fennell                                                                       
v. First Step Designs, Ltd., 83 F.3d 526, 536 (1st Cir. 1996)                                     
(citations and internal quotation marks omitted).

                             -30-

owned  enterprise.  See,  e.g., Burton v.  Wilmington Parking                                                                       

Auth., 365 U.S. 715 (1961); Blum, 467 U.S. at 1010-11.   That                                          

type of symbiotic relationship has been found to create state

action  where  the government  tacitly  endorses  and becomes

entangled with  private racial  discrimination.   Burton, 365                                                                  

U.S.  at 724.   Even  if that  race discrimination  model for

state  action were imported  here, there  is no  evidence the

school  officials  tacitly endorsed  or  benefitted from  the

students' decisions not to run Yeo's ads.  

          The   state  action   cases   also   consider  "de-

privatizing" and attributing to the government the actions of

private  persons where  the state  has been  involved in  the

sense of delegating  traditional governmental authority  to a

private actor.10   In  Edmonson, a  private litigant's  race-                                         

based exercise of peremptory challenges was found to be state

action.  Edmonson, 500 U.S. at 621.  The running of trials is                           

a government function  and it is the judge  who, based on the

challenge, excuses the juror.   The publishing of a newspaper

or a yearbook is most emphatically not a traditional function

                                                  

10.  The school  officials point  to NCAA  v. Tarkanian,  488                                                                 
U.S.  179  (1988),  where  an unincorporated  association  of
public and private colleges was found not to be a state actor
even though the association's actions led a public college to
take disciplinary action against a basketball coach.   But in
this  case the  state actors, the adults,  have a supervisory
relationship to the private group, the students, and are thus
somewhat the inverse of the NCAA and the public college.  

                             -31-

nor  an  exclusive prerogative  of  the  government  in  this

country.   Private schools commonly have  student newspapers,

and public  schools not  uncommonly have independent  student

newspapers.   The delegation of  governmental function theory

does not  establish state action.   See Flagg  Bros., Inc. v.                                                                    

Brooks,  436 U.S.  149 (1978)  (sale of  goods in  storage by                

warehouseman  did not  constitute state  action); Jackson  v.                                                                   

Metropolitan Edison Co., 419 U.S. 345 (1974) (private utility                                 

which terminated electric service was not state actor). 

                              B.

          Secondly,  while there may be rare occasions when a

state has  a duty  to intervene  in actions taken  by private

persons which could give rise to a state action finding, this

is not one.11  See  Ponce, 760 F.2d at 379-80 (although there                                   

may be some  occasions in  which "[t]he government should  be

responsible for failing to  act where it  should act,"  there

was no state action because the government had no affirmative

duty to regulate  amateur sports leagues).   Cf.  DeShaney v.                                                                    

Winnebago  County  Dep't  of Social  Services,  489  U.S. 189                                                       

(1989)  (finding  that the  Due  Process  Clause  imposes  no

affirmative duty on  the government to protect  citizens from

deprivation  of life, liberty or property by private actors).
                                                  

11.  For example, state officials  could not personally stand
by and  watch privately-contracted-for  prison guards beat  a
prisoner to  death, and then defend on the ground of no state
action.

                             -32-

Here,  the state  statute,  Mass.  Gen. Laws  ch.  71,    82,

appears   to  have  been   intended,  in  part,   to  express

Massachusetts' policy judgment  that student editors of  high

school  publications generally  have editorial  autonomy from

school  officials  and  that their  decisions  are  not state

action.  While the  state statute cannot be determinative  of

the outcome of the federal constitutional question, Lebron v.                                                                    

National  R.R. Passenger  Corp., 115  S. Ct. 961,  971 (1995)                                         

(statutory declaration that Amtrak is not a government entity

not  dispositive   of  governmental   action  question  where

constitutional rights  are involved), no such  duty to act is

imposed by state law.

          The First  Amendment  free speech  and  free  press

guarantees do  not involve  a duty  by the government  to act

where  there is  otherwise  no state  action.   Indeed, those

guarantees   are  largely   based  on   prohibitions  against

government action.12   "The  First Amendment  does not  reach

acts  of  private   parties  in  every  instance   where  the

[government]  has merely permitted or failed to prohibit such

acts."   CBS  v.  Democratic Nat'l  Comm., 412  U.S.  94, 119                                                   

(1973)  (plurality  opinion).   In  CBS, a  plurality  of the                                                 
                                                  

12.  The  state  action  question  also  cannot  be  resolved
against  Yeo on the  grounds that the  Constitution prohibits
the state actors,  the school administrators, from  acting to
interfere  with the  student  editors.   Hazelwood forecloses                                                            
such a conclusion.  

                             -33-

Supreme Court   found that the decisions  of broadcasters not

to  accept any  editorial  advertising  were  not  government

action  for purposes of the First  Amendment, even though the

government   both   licensed   and   heavily  regulated   the

broadcasters.  Id. at 116-19.   As a matter of law, we see no                            

legal  duty  here on  the  part  of school  administrators to

control the  content of  the editorial  judgments of  student

editors  of publications.   Such a duty  -- which Yeo  in his

briefing  suggested  could  be derived  from  the traditional

government  function of  running  schools and  the "symbiotic

relationship" between the publications and the school -- does

not exist and cannot support state action.

                              C.

          We  are left  with  the  third theory:    that  the

actions by the  students should  be attributed to the  school

officials, despite the officials' lack of actual or effective

control and the lack of  any duty.  The key issue is  whether

the  conduct  may be  "fairly  attributable  to  the  state."

Barrios v. AEELA, 84 F.3d 487, 491 (1st Cir. 1996) (citations                          

and  internal quotation marks omitted) (no state action where

state did not compel  organization of governmental  employees

of Puerto  Rico to  act, no  traditional government  function

involved, and no interdependence and joint participation with

state is shown). 

                             -34-

          Of  course, the fact that the newspaper editors are

public school  students does not, in  itself, make them state

actors.  Persons do  not become state actors because they are

clients of  government services,  whether they  are students,

hospital  patients,  or  prison  inmates.    Some,  like  the

students, are government  clients by compulsion --  here, the

truancy  and mandatory  education laws  compel the  students'

attendance.13   They may  not be  converted to the  status of

government actors simply on such a basis.  

          Yeo  argues, using  the  Rendell-Baker terminology,                                                          

that there  is a sufficient nexus  to attribute the students'

actions to the  state.  But examining  the nexus here between

state regulation and  financial support  of the  publications

and the challenged decisions militates against a state action

finding.  See  Blum v.  Yaretsky, 457 U.S. at 1004;  Rendell-                                                                       

Baker,  457 U.S. at 838-41.  It is established that a private               

institution's receipt of  state funding does not  render that

institution's decisions  state action.    Rendell-Baker,  457                                                                 

U.S.  at 840.   This  can be  so even when  the institution's

budget is  almost entirely  derived from  public money.   Id.                                                                      

Here, the publications are the institutions at issue.  
                                                  

13.  We distinguish those   1983 cases where the plaintiff is
himself a  compulsory client of  the government,  such as  is
true in suits by persons in custodial care of  the state, and
sues otherwise  private  actors  who provide  services  under
contract  with the state.   See West  v. Atkins, 487  U.S. 42                                                         
(1988); Miranda v. Munoz, 770 F.2d 255 (1st Cir. 1985).                                  

                             -35-

          The  Yearbook  receives no  money  from the  school

system other  than the indirect  assistance it  gets from the

small stipend  received by its faculty  advisor.  The  Musket                                                                       

does  receive  greater  financial assistance.    Much  of its

operating costs as well  as its advisor's stipend are paid by

the  school  system.    However, these  facts  are  far  from

conclusive.  The focus in Rendell-Baker  was on the interplay                                                 

between  the  action  at issue  and  the  state  funding  and

regulation,  not  merely  on  the  amount  of  state  aid  or

oversight.  Id.   There was no interplay between the decision                         

not to publish the advertisement and the state's provision of

financial  and faculty support.  That  the principal kept the

checkbook for the school newspaper had nothing to do with the

students' decisions whether or not to run the ads.  

          Yeo's "nexus"  argument  turns  on  context.    The

Yearbook does memorialize in photographs the experiences  and

personalities in a  public high school class.   The newspaper

is  the newspaper of the public high  school; its name is the

"Lexington  High School Musket" and it identifies itself with                                        

the high school  in its communications and  interactions with

other  students  and  the community.   It  does  receive some

financial  support from the  school and the  faculty advisors

may have some subtle  influence.  The newspaper exists in the

form it  does because  the school  authorities and state  law

permit  it  to do  so.    While not  part  of  the for-credit

                             -36-

educational curriculum, work on the Musket does have explicit                                                    

educational value  and provides an attractive  credential for

students.     The  student  editors  perform  some  of  their

functions  on  school  grounds,  perhaps even  during  school

hours.  All of these factors support Yeo's argument.  It is a

close  question whether the injury caused here "is aggravated

in a unique way  by the incidents  of government  authority."

Edmonson, 500 U.S. at 622 (citation omitted).14                    

          The  Supreme Court has taught that the state action

question may shift depending on the context and the  question

asked.   A  public  defender is  not  a  state actor  in  her

representation of a  criminal defendant, even though  she may

be one in the performance of other duties, such as hiring  or

firing decisions.  See Polk County, 454 U.S. at 324-25.  Even                                            

acknowledging that  the public defender is a  state employee,

Polk  County  considered  it important  that,  in  the actual                      

function  of  defending the  client,  the  public  defender's

relationship to  the state  was necessarily  independent, and

even adversarial, and that the defender exercised independent

                                                  

14.  Cf.   Marjorie  Heins,   Viewpoint   Discrimination,  24                                                                  
Hastings  Const.   L.Q.  99,   159  (1996)("Public  education
presents a paradoxical situation: it is government speech for
some   purposes,  yet   also  a   quintessential  forum   for
intellectual growth [and] exploration. . . .") 

                             -37-

judgment in the  same manner as did  attorneys in the private

sector.  Id. at 321-22.  So too here.15                      

          Here,  the  students'  relationship  to  the public

school  officials in the exercise of their editorial judgment

was certainly  independent.    At  times,  it  was  close  to

adversarial.    The  school officials  gained  nothing  but a

lawsuit  from the students' decision, and the officials might

themselves,  as they told the students, have made a different

decision.  It is  not enough to create state  action that the

decisions took  place in a public school  setting, that there

was  some  governmental  funding  of  the  publication,  that

teachers  were acting as advisors, and  that the state actors

made an  educational judgment to respect  the autonomy of the

students' editorial judgment.

          Where, as here, there are First Amendment interests

on both sides of  the case, the analysis of whether  there is

                                                  

15.  Similarly,  in  Edmonson,  not  all  of  the  litigation                                       
decisions of the defendant private company were  deemed to be
state  action;  only the  race-based  exercise  of peremptory
challenges were.   See  Edmonson, 500  U.S. at 621-22.   This                                          
was, in  part, because "[r]acial  bias mars  the integrity of
the  judicial  system  and prevents  the  idea  of democratic
government from becoming a reality."  Id. at 628.  Where such                                                   
interests  are at  stake,  the acquiescence  of a  government
actor in  the discriminatory actions  of a  private party may
implicate the  Constitution.   For example,  if  this were  a
claim brought  by  a  student  who  had  been  excluded  from
election to the  editorial board on account  of her race, and
the school  officials  declined  to intervene,  the  analysis
would focus  on a  different decision  and most  likely would
reach a different result. 

                             -38-

state action must proceed with care and caution.  Because the

record establishes that the editorial judgment exercised  was

the  independent  judgment  of the  student  editors  of both

publications, we resolve the question of state action against

Yeo.

          The decision of  the district court  is affirmed.16

Costs are awarded to  the Town of Lexington and the defendant

school officials.

                                         Concurrences follow.

                                                  

16.  The  motion to  strike  filed by  Yeo in  this  court is
denied  as  immaterial  and  moot  in  light of  the  court's
opinion.

                             -39-

          TORRUELLA, Chief Judge (Concurring).  I concur with                    TORRUELLA, Chief Judge (Concurring).                                          

the majority  opinion but  write separately  to highlight  an

important  issue that  the majority fails  to address  -- the

absence of a public forum.

          The  regulation  of  speech  in  forums  that  have

traditionally been available for public expression is subject

to the highest degree of scrutiny.  See Perry  Educ. Ass'n v.                                                                    

Perry Local Educators' Ass'n,  460 U.S. 37, 45 (1983).  These                                      

"traditional public  forums" include  streets, sidewalks  and

parks.   Id.   In  order to  further aid  citizens' political                      

discourse, the  state may,  from time  to time, create  a new

public forum for the  views of the community.  The regulation

of speech in these "designated" public forums is also subject

to strict scrutiny.   See id. at  46.  However, it  is simply                                       

not true, as a matter of constitutional law, that each time a

state actor  solicits advertising, a designated  public forum

has been  created by the government.   See Lehman  v. City of                                                                       

Shaker  Heights,  418  U.S.  298  (1974)  (city  may  solicit                         

advertising  for  its   rapid  transit  cars  while  refusing

political and public issue advertising).  

          The Supreme Court has  held that "[t]he  government

does not create  a public forum by  inaction or by permitting

limited  discourse,  but  only  by  intentionally  opening  a                                                           

nontraditional  forum for  public  discourse."   Cornelius v.                                                                    

NAACP Legal  Defense &amp;  Educ. Fund,  Inc., 473 U.S.  788, 802                                                   

                             -40-

(1985)  (emphasis  added); see  also International  Soc'y for                                                                       

Krishna Consciousness, Inc. v.  Lee, 505 U.S. 672, 680 (1992)                                             

(when  the  government  opens a  forum for  certain  types of

speech,  a  public forum  has  not  been  created unless  the

government intended  to create a  forum without limitations);                             

United States v. Kokinda, 497 U.S. 720, 730 (1990) (plurality                                  

opinion) (same); Perry, 460  U.S. at 48  (same).   Therefore,                                

when  school newspapers  and  yearbooks  publish  advertising

alongside  student articles and  pictures, it cannot  be said

that  editors are  necessarily intending to open  a forum for

all public discourse.  

          This  Circuit  has  observed  that  "in determining

whether the government  qua proprietor has  designated public                                                

property  to be  a  public  forum, courts  should  be  highly

deferential to the government's decisions to regulate speech"

where   those    decisions   do    not   evidence   viewpoint

discrimination.  AIDS  Action Committee of Mass. v.  MBTA, 42                                                                   

F.3d 1, 9 (1st Cir. 1994).   It follows that the mere absence

of a prior written policy against political and public  issue

advertising should not preclude the Musket from adopting such

a policy when the need to  do so becomes apparent, so long as

the paper  has not established a  practice of publishing such

material.    See  Cornelius, 473  U.S.  at  802 (government's                                     

intent  regarding a  forum  for speech  must be  gleaned from

policy and practice);  Grace Bible Fellowship, Inc.  v. Maine                                                                       

                             -41-

School Admin. Dist. No.  5, 941 F.2d 45,  47 (1st Cir.  1991)                                    

(same).  In this case, the Musket had not published political

or public  issue advertising in the  past, and Yeo's  request

did not obligate the paper to begin publishing such material.

          When   the   state  solicits   advertising  for   a

nontraditional  public forum, it  is permitted to  filter out

pure  political speech.   See  Lehman,  418 U.S.  at  303-04.                                               

Disallowing this  filter would shut  down potentially  robust

activities, including many school  newspapers, inhibiting the

marketplace of  ideas protected by the First  Amendment.  See                                                                       

Keyishian  v. Board  of  Regents, 385  U.S.  589,  603 (1967)                                          

(recognizing  that   schools  are   important  loci   of  the

"marketplace of  ideas" protected  by the  First  Amendment).

While it  is true that  "[t]he line  between ideological  and

nonideological  speech is impossible to  draw with accuracy,"

Lehman, 418  U.S. at  319 (1974)  (Brennan, J.,  dissenting),                

there is no such line-drawing problem in this case.  For this

additional reason, the district court must be reversed. 

                             -42-

          Stahl, Circuit  Judge, concurring  in the judgment.                    Stahl, Circuit  Judge, concurring  in the judgment.                                         

Though I  remain persuaded that,  on the facts  of this case,

the student editors were public actors acting under  color of

state law,  further examination of the  record during en banc                                                                       

review leads me  to conclude that this  issue is not material

to our  decision and that the district court properly entered

judgment in favor of  defendants.  I write separately for two

reasons.   First,  because this  case is  easily resolved  on

statutory grounds -- lack of evidence from which a factfinder                            -- 

could   conclude    that   the    defendants   "caused"   the

constitutional  violation  complained  of  -- I  believe  the                                                     -- 

majority's central state  action ruling to be  an unfortunate

breach of the  "fundamental rule of judicial  restraint . . .

that  [courts] will  not  reach constitutional  questions  in

advance of the necessity of deciding them."  Three Affiliated                                                                       

Tribes v. Wold Engineering,  P.C., 467 U.S. 138,  157 (1984).                                           

Second,  I believe the majority's  unnecessary constitutional                                             

ruling to be wrong on the merits.                                                 

                             I. 

          Defendants  cannot  be  liable  to  plaintiff   for

damages unless, among other things,  they subjected plaintiff

to, or caused plaintiff  to be subjected to, a deprivation of

federal rights.  See 42  U.S.C.   1983.  Because  the Supreme                              

Court has made  it clear that    1983's causation language is

to be narrowly  construed, see Monell v.  New York City Dep't                                                                       

                             -43-

of Social Servs.,  436 U.S. 658, 691-94  (1978) (interpreting                          

the  language  of     1983  to  preclude  the  imposition  of

vicarious liability),  the question  here quickly reduces  to

whether one or more defendants can, at the  least, be seen as

having  caused the rejection of the advertisements within the

narrow meaning of the statute.  See id.  As    the   majority                                                 

notes, plaintiff has not named as defendants those persons --

the student editors of  the newspaper and yearbook -- who may

most readily be seen  as having directly subjected him to the

alleged  deprivation  of   his  First  Amendment  and   equal

protection rights.   Nor has  plaintiff argued  that the acts

and omissions for which the named defendants may most readily

be   seen  as   responsible  --   delegating  decision-making

authority  to  the  students  and  failing  to  override  the

students'   decisions  --  caused  him  to  be  subjected  to

constitutional   harm.     See,   e.g.,   Febus-Rodriguez  v.                                                                   

Betancourt-Lebon,  14 F.3d  87, 91-92  &amp; n.4 (1st  Cir. 1994)                          

(discussing   this   circuit's   standard  for   establishing

supervisory liability under    1983).  As  a result, no trial

is warranted unless there is a genuine issue of material fact

as to whether (1) at least one individual  defendant actually

colluded with  the students  in the  decisions to  reject the

advertisements; or (2) the rejection was pursuant to a policy

or  custom of  the Town  of Lexington.   See, e.g.,  Board of                                                                       

County Commissioners v. Brown,  117 S. Ct. 1382,  1388 (1997)                                       

                             -44-

(reiterating that,  for purposes  of    1983, a  municipality

causes one to be subjected to a deprivation of federal rights

only  through its duly-enacted policies or widespread customs

having the force of law).  In my  view, there is insufficient

evidence  to  warrant  a  trial  against  any  of  the  named

defendants under either of these theories.

          Though I continue to  disagree with the  majority's

conclusion that  defendants  Kafrissen  and  Mechem  did  not

influence   the   students'    decisions   to    reject   the

advertisements, I now concur that the summary judgment record

permits only  one inference:  the  students made the ultimate

decisions.  In the  end, I am constrained  to agree that,  in

the face  of  largely uncontradicted  testimony  to  contrary

effect,  Kafrissen and  Mechem's  use  of the  term  "we"  in

message-relaying   correspondence    with   plaintiff,    and

Kafrissen's prior  threat to resign,  see ante at  27 n.8, do                                                        

not allow a determination that defendants Kafrissen or Mechem

can be held liable for the decisions made.   And with respect

to  the other  individually-named  defendants, so  also do  I

agree  that  there  is  no  basis  for concluding  that  they

participated  in the rejections of the advertisements.  Thus,

there  is  insufficient evidence  of statutory  causation for

plaintiff to proceed to trial  against any of the  individual

defendants.  

                             -45-

          With   respect  to  the  Town,  I  agree  with  the

majority's  conclusion that there is no basis for attributing

to  it the  conduct  of the  students.   See  ante  Part III,                                                            

Sections  A and C.  I take issue,  though, with the method by

which the majority  reaches its conclusion.   Specifically, I

disagree with its direct (though reverse) application to this

case of those Supreme Court state action cases which look for

state  action  in   private  conduct.    See   generally  id.                                                                       

(applying, in order,  Terry v.  Adams, 345  U.S. 461  (1953);                                               

Morse  v.  Republican  Party of  Virginia,  116  S. Ct.  1186                                                   

(1996);  Burton v.  Wilmington  Parking Auth.,  365 U.S.  715                                                       

(1961);  Flagg Bros.,  Inc. v. Brooks,  436 U.S.  149 (1978);                                               

Jackson  v. Metropolitan  Edison  Co., 419  U.S. 345  (1974);                                               

Rendell-Baker v. Kohn, 457 U.S.  830 (1982); and Edmonson  v.                                                                   

Leesville  Concrete  Co.,  Inc.,  500  U.S.  614  (1991),  to                                         

determine that the defendants  to this lawsuit,  all of  whom

are public actors, are not liable for the students' conduct).

While these cases might,  by analogy, shed light on what will

not be considered constitutionally tortious municipal conduct             

under    1983, see, e.g.,  Rendell-Baker, 457  U.S. at 840-41                                                  

(strongly  supporting  an  argument  that  neither  municipal

funding   nor  municipal  regulation  of   a  private  entity

constitutes municipal "policy"  for purposes of    1983), not

one of them speaks to the question directly posed here:   can

conduct by  non-legislative and  non-policy making  actors be

                             -46-

deemed to have  been sufficiently caused by  municipal policy

or custom  for liability to attach to the Town?  Nor does any                                                        

one of these cases involve harm-causing conduct which  can be

seen as  having been committed  by public actors.   For these                                                   

reasons, I fear that the majority opinion  confuses more than

it clarifies.

          Moreover, the majority has entered an area it could

and should  avoid.   The Town's freedom from  liability flows

less from the  fact (if it be  fact, see infra Part  II) that                                                        

the students are  private actors than from  the fact that the

students' actions  were not caused by  Town policy or custom.                                                 

Again, plaintiff  has not advanced as  a theory of  liability

the Town's  decision to let  the students decide  -- the only

municipal policy or custom which can arguably be seen at play

here.  And even if plaintiff had so  argued, it seems obvious

that, as  an action taken  in what appears to  have been good

faith reliance upon state law, see Mass. Gen. L. c. 71,   82,                                            

this policy cannot  give rise to municipal  liability under  

1983.   See Surplus Store &amp; Exchange, Inc. v. City of Delphi,                                                                      

928 F.2d 788, 791-92 (7th Cir. 1991).

          In  the end,  defendants are  entitled to  judgment

because  they did  not, under     1983, ultimately  cause the

conduct of the  non-party students.  We  should not go beyond

this simple fact to decide the case.

                             II.

                             -47-

          By  resolving this  dispute through  application of

those cases  which look for state  action in private conduct,

the majority proceeds from the premise that the students were

private actors.  I not only find this  implicit holding to be

unnecessary,  I believe it to be incorrect on the merits.  In

my view,  had plaintiff sued the student editors directly, we

would  have been  obliged to  rule that  they were,  in fact,

public  actors  insofar  as  they  solicited   and  published

advertisements from paying third parties.

          Whether a person or entity is a private or a public

actor  obviously cannot  be resolved  through  application of

cases which presume that the actor is private; it is resolved

by a fact-specific inquiry  into whether the person or entity

is, in context, acting "under  color of state law."  See Polk                                                                       

County v. Dodson,  454 U.S. 312, 322  n.12 (1981) (noting the                          

distinction).   Although  the  Supreme  Court  has  sometimes

stated that  the state  action and  under color of  state law

questions are coextensive, see, e.g., United States v. Price,                                                                      

383 U.S. 787, 794 and n.7 (1966), it also has recognized that

they  are  not  invariably  the  same.   That  the  inquiries

sometimes diverge is clear in Dodson where, without reference                                              

to a  single state  action case,  the Court concluded  that a

state public defender  does not act under  color of state law

while acting as  counsel to an indigent  defendant in a state

criminal proceeding.  454 U.S. at 320-24.  

                             -48-

          Here,  as  in Dodson,  the question  (had plaintiff                                        

raised it) would not have been whether private conduct should

be attributed to the Town; rather, it would have been whether

the conduct  was, as  an initial  matter, public  or private.

Cf. Blum v. Yaretsky, 457 U.S 991, 1003-4 (1982) (contrasting                              

"those cases  in which the  defendant is a  private party and

the question is whether his conduct has sufficiently received

the imprimatur of the State  so at to make it 'state'  action

for  purposes of  the  Fourteenth Amendment"  with "cases  in

which the challenged conduct consists of enforcement of state

laws or  regulations by  state officials  who are  themselves

parties in  the lawsuit").   And  the state action  tests the

majority  relies  upon,  designed as  they  are  to determine

whether private conduct  is attributable to the  state, would

not have helped answer the question.

          To  illustrate, when  an  on-duty  municipal police

officer  misuses the  power  of  the office  to  carry  out a

personal vendetta, we  do not  decide whether  he was  acting

under  color  of  state  law  by  reference  to  whether  the

municipality is  itself liable for  the conduct.   See, e.g.,                                                                      

Martinez v. Colon, 54  F.3d 980 (1st Cir.), cert. denied, 116                                                                  

S. Ct.  515 (1995).   We  decide it  on a more  contextually-

appropriate inquiry  into whether the officer  has "exercised

power 'possessed  by virtue  of state  law and made  possible

only because the wrongdoer  is clothed with the  authority of

                             -49-

state law.'"  Id.  at 986 (quoting West  v. Atkins, 487  U.S.                                                            

42,  49  (1988)).   So  here  should  we  decide whether  the

students  are  public  or  private  actors  by  reference  to

criteria other than those  we would use to decide whether the

Town must pay for the students' acts.    

          What criteria should  be used?  A  helpful starting

point is Dodson, where the Court's ruling was informed by two                         

primary  considerations:   (1)  "a  public  defender  is  not

amenable to  administrative direction  in the  same sense  as

other employees  of the State," 454 U.S. at  321; and (2) "it

is the constitutional obligation  of the State to respect the

professional  independence of  the public  defenders  whom it

engages,"  id. at  321-22.   Here,  both factors  militate in                       

favor   of  finding  that,  insofar  as  they  solicited  and

published (or declined to publish) advertisements from paying

third parties, the students  acted under color of  state law.

Certainly,  the power  of  school officials  to regulate  the

content of student publications and the acts of their student

editors, see Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260,                                                        

266-70  (1988), is  near its  apex where  the subject  of the

regulation  involves  the  students' commercial  interactions

with  third parties.   And where these  interactions arguably

implicate the  constitutional rights of those  third parties,

cf. Dodson, 454 U.S. at 321-22, and hold out the prospect  of                    

monetary benefit to the  Town, see, e.g., Burton, 365 U.S. at                                                          

                             -50-

724 (indicating that conduct which leads to monetary benefits

for  the State will  often be deemed action  on behalf of the

State),  the question  is less  whether the  students may  be

regulated and more whether the students must be regulated.  

          My position is narrow.   I have never doubted  that

the  student  writers are  private  actors  with  respect  to

reporting  and editorializing.    A contrary  holding  would,

after all, effectively spell the end of public school student

publications; one would  be hard-pressed to report  and could

never  editorialize without  violating the  First Amendment's

mandate of  viewpoint neutrality.   See  generally R.A.V.  v.                                                                   

City of St. Paul, 504 U.S.  377 (1992).  I only suggest that,                          

to the extent public school students solicit funds to support

a public enterprise in their capacities as  officials of that

enterprise, they act  under color of state  law.  See Dodson,                                                                      

454  U.S. at 324-25 (making clear that an actor can act under

color of state  law in one capacity but  not in another); see                                                                       

also ante at 35.                   

          At  the very least,  that the students  are private

actors is  not such an open and shut matter that it should be

assumed sub silentio.   If the student  editors of the Musket                                                                       

determined  to  run  the  paid  political  advertisements  of

Democratic  candidates  for Town  office  but  not  those  of

Republican  candidates,  and  if  the  Republican  candidates

sought  injunctive  relief  against  the  students  in  their

                             -51-

capacities  as  editors  of the  Musket,  would  we summarily                                                 

conclude  that the challenged action was not undertaken under

color of  state law?  I would like to  think not.  Though the

facts of the present  case are less egregious, the underlying

question  --  not   presented  here  because  of  plaintiff's

pleading decisions -- is the same.

                             III.

          For  the reasons stated, I concur in the majority's

conclusion that  judgment was  properly entered  in favor  of

defendants.  I do  not, however, concur in the reasoning that

leads it  to this  conclusion.   I would instead  resolve the

case under well settled law that precludes a finding, under  

1983, against  any of the  defendants named  in the complaint

for the theories of recovery plaintiff has advanced.   

                             -52-
