
USCA1 Opinion

	




                            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  &  Thibeault,  LLP  were on  brief  for        _______        __________________________________        appellees.            S.  Mark Goodman,  Michale C.  Heistand,  Robert A.  Bertsche, and            ________________   ____________________   ___________________        Hill &  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 &  Stewart  for  Massachusetts        __________________        ________________________        Newspaper  Publishers Association;  Gwendolyn H.  Gregory, Melinda  L.                                            __________________________________        Selbee, Timothy B. Dyk, John Bukey, Jones, Day, Reavis & 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 & 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 &  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  & 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 & 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-
