Zachariah LOGIODICE, Plaintiff, Appellant, v. TRUSTEES OF MAINE CENTRAL INSTITUTE, Douglas C. Cummings, John Marquis, Terrance C. McCannell and Maine School Administrative District No. 53, Defendants, Appellees, 296 F.3d 22

BOUDIN, Chief Judge. Maine School Administrative District No. 53 — the local government agency responsible for schooling children in the Maine communities of Pittsfield, Burnham, and Detroit — does not operate its own public high school. Instead it underwrites secondary education for students through a contract with Maine Central Institute (“MCI”), a privately operated high school in the district. See 20-A M.R.S.A. § 2701 (West 1993 & Supp.2001).

The contract — • originally for a ten-year term starting in 1983 and later extended through separate agreements for two more ten-year periods (starting in 1993 and 2003) — provides that MCI will accept and educate all of the school district’s students in the ninth through twelfth grades in exchange for specified tuition payments by the school district. Zachariah Logiodiee was an eleventh grade student at MCI during the 1999— 2000 school year. On January 19, 2000, he cursed at a teacher, Mr. Harper, who had confiscated his soda just prior to a midterm English exam.

Harper immediately reported the incident to MCI’s dean of students, John Marquis, who told Zach he would be suspended if he did not leave the gyin where the exam was being held. According to Marquis, Zach then approached Marquis and cursed defiantly at him; Zach denies this and says he simply asked Marquis for his soda back. In any event, Zach does not dispute that he refused to leave the classroom. After the exam, Marquis called Zach’s mother and asked her to pick Zach up from school.

When she arrived, Marquis described the incident and informed her that Zach would be suspended for ten school days; he also told her that both he and Harper had felt threatened by Zach’s behavior. Marquis met with both Zach’s parents later that afternoon and at that point suggested that Zach see a counselor. Two days afterward, Marquis sent a letter to Zach’s parents confirming the ten-day suspension and also indicating for the first time that Zach would not be allowed to return to school even after ten days unless he obtained counseling and a “safety evaluation” from a licensed psychologist.

Nine school days later, on February 1, 2000, Zach’s parents were still unable to get the required “safety evaluation” for Zach. The psychologist they contacted did not have an appointment available until February 7 and further told them that no psychologist would be willing to give such an evaluation. At this point, Zach’s parents called MCI’s headmaster, Douglas Cummings, requesting that Zach be allowed to return to school without the evaluation and arguing that a suspension of greater than ten days would violate state law, see 20-A M.R.S.A. § 1001(9).

Cummings refused the request, saying that the law did not apply to private schools including MCI. Zach’s parents then asked the superintendent of the school district, Terrance McCannell, to intercede on their behalf. McCannell wrote a letter to Cummings expressing concern that any suspension beyond ten days would violate Zach’s rights; he also suggested that it would violate MCI’s contract with the school district.

On February 7, 2000, Cummings met with McCannell and Zach’s parents and agreed that Zach could return to school if the psychologist met with Zach a few more times and assured school officials that he would not pose a threat at school. Zach was finally allowed to return to school on February 15, 2000 — seventeen school days after the initial incident. On November 29, 2000, Zach’s parents filed on Zach’s behalf a

section 1983 suit in federal court in Maine against MCI, the school district, and the individuals involved. 42 U.S.C. § 1983 (1994 & Supp. V 1999). • The complaint alleged that MCI, Cummings, and Marquis (collectively, “MCI”) had violated procedural due process requirements by suspending Zach without giving him an opportunity for a hearing, see Goss v.

Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), and that the school district and McCannell (collectively, “the school district”) had improperly delegated to MCI power to discipline publicly funded students without adequately assuring that MCI followed federal due process safeguards. The district court initially denied defendants’ motion to dismiss for failure to state a claim, Logiodice v. Trustees of Me. Cent. Inst., 135 F.Supp.2d 199 (D.Me.2001), but after receiving the parties’ factual submissions granted

summary judgment to both sets of defendants, Logiodice v. Trustees of Me. Cent. Inst., 170 F.Supp.2d 16 (D.Me. 2001). The district court also dismissed plaintiffs parallel claims brought under the state due process clause. Id. at 34. Plaintiff now appeals to this court. We start with the claims against MCI. The district court did not reach the merits of plaintiffs procedural due process claim because it found at the threshold that MCI was not acting “under color of state law.” 42 U.S.C. § 1983. In most contexts,

section 1983’s “under color of state law” requisite is construed in harmony with the state action requirement of the Fourteenth Amendment. Lugar v. Edmondson Oil Co., 457 U.S. 922, 931-35, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). Broadly speaking, the Fourteenth Amendment protects individuals only against government (leaving private conduct to regulation by statutes and common law). E.g., The Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883).

Yet under several doctrines, acts by a nominally private entity may comprise state action — e.g., if, with respect to the activity at issue, the private entity is engaged in a traditionally exclusive public function; is “entwined” with the government; is subject to governmental coercion or encouragement; or is willingly engaged in joint action with the government. Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295-96, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001). The doctrines are too generally phrased to be self-executing: the cases are sensitive to fact situations and lack neat consistency.

See id. Nevertheless, existing doctrine provides the starting point and framework for analysis. Plaintiffs first claim on appeal is that MCI is a state actor because (in plaintiffs words) “it was performing the traditional public function of providing public educational services” to the school district’s high school students. Under the “public function” doctrine, the Supreme Court has identified certain functions which it regards as the sole province of government, and it has treated ostensibly private parties performing such functions as state actors.

The classic cases are the conduct of elections, e.g., Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953), and the governance of a “company” town, Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946). So far as the public function test is based on historical practice (as opposed to a normative judgment), see, e.g., San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 545, 107 S.Ct. 2971, 97 L.Ed.2d 427 (1987), plaintiff cannot meet it.

This is because under Supreme Court precedent, it is not enough that the function be one sometimes performed by government — an approach that would exclude little, given the diversity of activities performed by modern governments. Rather, where the party complained of is otherwise private, the function must be one “exclusively reserved to the State.” Flagg Bros. v. Brooks, 436 U.S. 149, 158, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978) (emphasis added). Obviously, education is not and never has been a function reserved to the state. See, e.g., Pierce v. Soc’y of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925).

In Maine, as elsewhere, schooling, including high school education, is regularly and widely performed by private entities; this has been so from the outset of this country’s history. See Chadbourne, A History of Education in Maine 111 (1936); Bowen, The History of Secondary Education in Somerset County in Maine 16-22 (1935). MCI itself was founded in 1866. Chadbourne, supra, at 283. Accordingly, the Supreme Court, in Rendell-Baker v. Kohn, 457 U.S. 830, 840-43, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982), aff'g 641 F.2d 14 (1st Cir.1981), and lower courts, including this one, see Robert S. v.

Stetson Sch., Inc., 256 F.3d 159, 165-66 (3d Cir.2001); Johnson v. Pinkerton Acad., 861 F.2d 335, 338 (1st Cir.1988), have declined to describe private schools as performing an exclusive public function. See also Jackson v. Metro. Edison Co., 419 U.S. 345, 354 n. 9, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). Admittedly, both Rendell-Baker and Johnson involved claims to due process protection made by teachers and not students; our own decisions in both cases held out the possibility that students might have a better claim. Johnson, 861 F.2d at 338; Rendell-Baker, 641 F.2d at 26.

Whether state actor status should depend on who is suing is debatable, see, e.g., Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 527 (2d Cir.1996), and the Supreme Court’s decision in Rendell-Baker did not encourage such a distinction. In any event, any stronger claim by students would be based not on historical practice but on normative judgments (more is to be said about this below).

Plaintiff essentially concedes that education, as a category, is not from a historical standpoint the exclusive province of government; but his brief seeks to narrow and refine the category as that of providing a publicly funded education available to all students generally. MCI, he says, is different from other private schools; although it admits some non-district students selectively, it admits all district students and so serves as the school of last resort for students in the district.

There is no indication that the Supreme Court had this kind of tailoring by adjectives in mind when it spoke of functions “exclusively” provided by government. However this may be, even publicly funded education of last resort was not provided exclusively by government in Maine. Before public high schools became widespread, private grammar schools and academies received public funds and were the only secondary education available. See Chadbourne, supra, at 104-35, 273-87.

And even as towns increasingly built their own public schools beginning in the mid-1800s, some municipalities continued to rely on publicly funded private schools to provide free secondary education. In fact, the first statewide high school law providing money to municipalities for the establishment of local public schools also contained the original version' of 20-A M.R.S.A. § 2701 — the current provision allowing school districts to provide education through contracts with private high schools. See id. at 378-79, 515-16 (citing 1873 Me. Laws ch. 124, § 7). Other states had similar laws early on. E.g., 1904 Vt.

Acts & Resolves No. 37, § 2; 1874 N.H. Laws eh. 69; § 1. Plaintiff also’invokes the “entwinement” doctrine, to which we now turn. According to Brentwood, a private entity may be classed as a state actor “when it is ‘entwined with governmental policies’ or when government is ‘entwined in [its] management or control.’ ” 531 U.S. at 296, 121 S.Ct. 924 (quoting Evans v. Newton, 382 U.S. 296, 299, 301, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966)). In Brentwood, the defendant was a non-profit association that set and enforced standards for athletic competition among schools both private and public.

At issue was the association’s enforcement of recruitment rules alleged by a member school to violate the First and Fourteenth Amendments. Brentwood, 531 U.S. at 291-93. A closely divided Supreme Court applied the state action label to the association.

The opinion stressed two points: that the membership of the association was comprised overwhelmingly (84 percent) of “public schools represented by their officials acting in their official capacity to provide an integral element of secondary public schooling,” Brentwood, 531 U.S. at 299-300, 121 S.Ct. 924, and that in substance the association (replacing previous state school board regulation) set binding athletic standards for state schools, including the recruiting standards at issue in the case, id. at 300-01, 121 S.Ct. 924.

In our own case, there are certainly connections between the state, the school district and MCI. The state regulates contract schools in various respects, see 20-A M.R.S.A. §§ 2702, 2901, 2902, 2951; most (about 80 percent) of MCI’s students are sponsored by the school district; the school district contributes about half of MCI’s budget; and in certain respects (public busing to extracurricular events, transfer of lower-school records, assistance with registration), MCI students are treated as if they were regular public school students.

But unlike the association in Brentwood, MCI is run by private trustees and not public officials; two officials of the school district (a school principal and a teacher) are trustees but serve as private citizens. And looking to the particular activity sought to be classed as state action, see Blum v.

Yaretsky, 457 U.S. 991, 1004-05, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982)— namely, the imposition of discipline on students — there is no entwinement: The MCI contract provides, with minor variations in language among the three versions, that “the Trustees shall have the sole right to promulgate, administer and enforce all rules and regulations pertaining to student behavior, discipline, and use of the buildings and grounds.” One might suspect that, given its financial leverage, the school district could have framed the contract to dictate in detail the disciplinary procedures to be followed or could have insisted on participating in such decisions.

But wisely or not, internal operations of MCI, and certainly the disciplinary structure and decision-making at issue here, have been left to MCI subject only to an arguable obligation to comply with regulations governing the school district (a point to which we return below). A “joint committee” of three MCI trustees and three school board members was created in the initial ten-year contract and, once created, theoretically could have exercised broad powers over personnel decisions, curriculum, and MCI’s “other educational activities.” 20-A M.R.S.A. § 2704(2).

But the committee in fact never exercised any such authority and was described in the initial contract as existing only in an “advisory capacity.” The most recent ten-year extension (effective starting in 2003) expressly renames it an “advisory committee.” Looking to substance, see Brentwood, 531 U.S. at 301, 121 S.Ct. 924, both sides concede that day-to-day operations, including discipline, are in the hands of MCI.

Thus, MCI does not fit within the two state-action exceptions invoked by plaintiff on appeal, nor other arguable exceptions that were discussed by the district court but are no longer relied upon by plaintiff. Logiodice, 170 F.Supp.2d at 28-29. Yet this does not exhaust the analysis: the reality is that some of the cases applying the state action label do not fit well into any established exception but are closer to ad hoc normative judgments. See Brentwood, 531 U.S. at 295-96, 121 S.Ct. 924. The difference is that the ad hoc cases have not yet congealed into formal categories.

Exemplifying this point, plaintiffs best case may be West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). There a state prisoner, claiming serious mistreatment by a doctor, brought a

section 1983 suit against the doctor, asserting a claim of cruel and unusual punishment. Assuming deliberate indifference, the doctor would clearly have been liable to suit if he had been a full-time state employee. See Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The Supreme Court in West said that the result was the same even though the doctor furnished the medical services to prisoners on a part-time basis and was technically an independent contractor with the state rather than a state employee. 487 U.S. at 55-57, 108 S.Ct. 2250.

The Supreme Court’s analysis did not rely directly on the public function doctrine or any other organized body of precedent. Cf. Brentwood, 531 U.S. at 295-96, 121 S.Ct. 924. The decision emphasized both that the plaintiff was literally a prisoner of the state (and therefore a captive to whatever doctor the state provided) and that the state had an affirmative constitutional obligation to provide adequate medical care to its prisoners, a duty the doctor was fulfilling. West, 487 U.S. at 54-55, 108 S.Ct. 2250 (citing Estelle, 429 U.S. at 103-04, 97 S.Ct. 285).

By contrast the plaintiff in our case is not required to attend MCI; and the Supreme Court has rejected any federal constitutional obligation on the. state to provide education, see San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). Admittedly, an argument could be made in our case for creating a new ad hoc exception. Maine has undertaken in its Constitution and statutes to assure secondary education to all school-aged children (until age 17, it is compulsory). See Me. Const, art. VIII, pt. 1, § 1; 20-A M.R.S.A. §§ 2, 5001-A(3).

Without such an education most children would be greatly handicapped in life. Although MCI is not a public school in the conventional sense, it is for those in the community the only regular education available for which the state will pay. A school teacher dismissed by a private school without due process is likely to have other options for employment; a student wrongly expelled from the only free secondary education in town is in far more trouble, unless his parents are rich or mobile.

This threat of wrongful expulsion from the local school of last resort (at least for those who cannot pay) is the heart of the impulse to expand the state action doctrine to reach this case. Faced with this threat, the temptation might be strong to couple the fact of state funding with the last resort status of MCI and tailor some new exception. But creating new exceptions is usually the business of the Supreme Court; to make one here, we would have to be persuaded that the threat is serious, reasonably wide-spread, and without alternative means of redress. None of these elements is satisfied in this case.

To begin with seriousness, Zach may well not have received the precise due process that would be required if MCI were a public school, cf. Goss, 419 U.S. at 581-84, 95 S.Ct. 729, but neither was he deprived of all procedural protection. Both he and his parents were fully informed of the reasons for the ten-day suspension and there is no indication that they ever disputed the factual allegations. Missing 17 days of school is a cost, but many in an era of school violence would think that a school faced with Zach’s apparent behavior might want expert reassurance.

Even a public school student may be sent home without a hearing if a teacher perceives a threat of violence, id. at 582-83, 95 S.Ct. 729. Nor is there any evidence' — we speak of Brandéis brief facts, not courtroom proof — that contract schools in Maine are disciplining students in an outrageous fashion and leaving Maine school children without an education. There are costs (rigidities, law suits), and not just benefits in inflicting constitutional standards wholesale upon privately governed institutions. See, e.g., New Jersey v.

T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (Fourth Amendment regulation of searches of students); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (First Amendment limitations on student dress codes). Before creating a new state action category, a lower court is entitled to insist upon some showing of need — beyond the small arguable unfairnesses that are part of life. Finally, we are confident that state law provides projection against serious abuse. As noted above, the contract gives MCI control over discipline of students.

But the school district says this is qualified by prior general language in the original contract that MCI assumes “all the legal requirements” of the school district. The school district argues that these requirements include the statutory obligation of public schools to afford a hearing for a suspension of more than 10 days. See 20-A M.R.S.A. § 1001(9). This reading of the contract is disputed by MCI, but if a court accepted it, it might give Zach, as a third party beneficiary, a contract claim against MCI. See, e.g., F.O. Bailey Co., Inc. v. Ledgewood, Inc., 603 A.2d 466, 468 (Me.1992).

Much more important, we think it plain that the school district is obliged by state law to assure that Zach— and any other student not shown to be incorrigibly dangerous or disruptive, cf. 20-A M.R.S.A. § 1001(9) — does have a free secondary education. If Zach were wrongly expelled by MCI (here he was not expelled at all), the school district would still be obliged to provide him with adequate schooling. See id. § 2; see also Me. Const, art. VIII, pt. 1, § 1.

How it would do so would be its problem — in all likelihood it would lean heavily upon MCI to readmit him — but surely a Maine court would compel the school district to satisfy its statutory obligation by providing him an education. The reality is that we are all dependent on private entities for crucial services and, in certain key areas, competition may not furnish protection. Consider, for example, towns in which electric, gas, or bus service is privately provided under franchise. Thus far, the Supreme Court has declined to impose due process requirements on such institutions.

E.g., Jackson, 419 U.S. at 353-54 & n. 9, 95 S.Ct. 449. It perceives, as we do here, that state statutory and administrative remedies are normally available to deal with such abuses and that “constitutionalizing” regulation of private entities is a last resort. Less needs to be said about plaintiffs other target on appeal: the school district and its superintendent. Certainly, both the former, as well as the latter when acting in his official capacity, are state actors. Avery v. Midland County, 390 U.S. 474, 479-80, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968); West, 487 U.S. at 50, 108 S.Ct. 2250.

They therefore have responsibility for their own acts and, under certain circumstances, for the misconduct of others subject to their authority. - But. neither alternative is of much help, to plaintiff in this case. Plaintiff says that these defendants violated due process when they failed to include in the contract with MCI protections against improper discipline, such as specific standards or procedures for MCI to follow or some veto for the school district over serious disciplinary action.

This claim faces an uphill battle: subject to limited qualifications, inaction by state actors is ordinarily not treated as a due process violation by the state actor, even though this permits harm to be caused by others. See DeShaney v. Winnebago County Soc. Servs. Dep’t, 489 U.S. 189, 197-200, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). Plaintiff points to cases in which the state actor (e.g., a municipality) has responsibility for other state actors (e.g., its police officers).

Although respondeat superior doctrine does not apply in such cases, the Supreme Court has carved out a narrower rule under which inaction— namely, a failure to supervise adequately— may result in liability for the constitutional violations committed by state-actor subordinates. City of Canton v. Harris, 489 U.S. 378, 386-89, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). But MCI was not a state actor at all, let alone a subordinate, so the Monell doctrine does not apply.

Plaintiff also points out that in this case the school district acted by choosing (as permitted by state law) to “contract out” to a private actor its own state-law obligation to assure education for students in the district. But localities contract all the time with private entities to provide local services (e.g., to repair roads or collect trash).

The locality does not thereby become liable under the Due Process Clause for failing to insist that the private entity offer exactly the same level of procedural protections to employees or beneficiaries of the services that government must afford when it acts for itself. As his final argument, Zach argues that the school district had a due process obligation to hold its own hearing and, if it disagreed with MCI’s suspension, provide him with an alternative placement. This claim appears to be a variant of the one just discussed.

In so far as it is a separate argument, the district court said that it had not been preserved and declined to address it. Logiodice, 170 F.Supp.2d at 30 n. 12. Plaintiffs brief makes little effort— and certainly not a persuasive one — to show that the district court was mistaken. These federal constitutional claims are to be distinguished, of course, from potential claims available to Zach under Maine law. In the absence of federal claims, the district court was entitled to leave those to the state courts, as it did here. 28 U.S.C. § 1367(c) (2000).

In this, as in other respects, the district court’s opinion is a model of careful analysis. Affirmed. Each side shall bear its own costs on this appeal. . E.g., Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991); West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981); Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966); Burton v.

Wilmington Parking Auth., 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). . See also Lyons v. Bd. of Dirs. of Sch. Admin. Dist. No. 43, 503 A.2d 233, 235-37 (Me.1986) (Me. R. Civ. P. 80B allows action to compel school board to vindicate statutory or constitutional rights); Soderstrom v. Me. Sch. Admin. Dist. No. 61, 2001 WL 1711497, *2 (Me.Super.2001) (student can bring claim of wrongful expulsion against school district under Me. R. Civ. P. 80B). .

DeShaney distinguished the principal exception, which exists where the state has confined a prisoner or other detainee and so made itself responsible for physical or medical protection. 489 U.S. at 197-200, 109 S.Ct. 998 (citing Youngberg v. Romeo, 457 U.S. 307, 315-16, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), and Estelle, 429 U.S. at 103-04, 97 S.Ct. 285). . Cf. City of Los Angeles v. Heller, 475 U.S. 796, 798-99, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986); Evans v. Avery, 100 F.3d 1033, 1040 (1st Cir.1996); Willhauck v. Halpin, 953 F.2d 689, 714 (1st Cir.1991).