ROBERT S., a minor v. STETSON SCHOOL, INC.; Richard J. Robinson, Individually and in his Official Capacity as Executive Director of the Stetson School; Dave Laprade, Individually and in his Official Capacity as Unit Counselor, Employed by the Stetson School; Ray Williams, Individually and in his Official Capacity as Unit Counselor, Employed by the Stetson School; Mike Williams, Individually and in his Official Capacity as Unit Counselor, Employed by the Stetson School; Robert Martin, Individually and in his Official Capacity as Unit Counselor, Employed by the Stetson School
No. 00-1438
United States Court of Appeals, Third Circuit
July 3, 2001
256 F.3d 159
ALITO, Circuit Judge
Argued April 20, 2001
Pressler advances only one argument before us. He contends that his sentence was imposed in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because it was arrived at in part as a result of sentencing findings made by the District Court. He is incorrect.
The jury convicted Pressler of conspiracy to distribute an unspecified amount of heroin, specifically finding that he was over 18 years old and that he had conspired to distribute heroin to persons under the age of 21. (Pr.App.51).
with the intent of the Sentencing Commission, which, after all, wrote the Guidelines long before Apprendi altered the background legal landscape. We therefore call this mat-
IV.
The judgment of conviction in No. 00-2588 will be vacated, and the matter remanded to the District Court with instructions to enter a judgment of acquittal in favor of Defendant Scott Shreffler. The judgment of sentence in No. 00-1824 will be affirmed. The Clerk is directed to send this opinion to the Chair and Chief Counsel of the United States Sentencing Commission, calling their attention to footnote 7.
ter to the attention of the Commission and suggest that this (and possibly other Guidelines provisions) may need to be redrafted in light of Apprendi.
Before: ALITO, McKEE, Circuit Judges, and ALARCON, Senior Circuit Judge.1
OPINION OF THE COURT
ALITO, Circuit Judge:
Robert S. (“Robert“), then a minor, filed this action against the Stetson School (“Stetson“), several Stetson employees, and others. His complaint asserted claims against the school and its staff members under
I.
Robert was a victim of sexual abuse, and he in turn molested his younger brother. In 1993, when Robert was 13, the Philadelphia Court of Common Pleas found him to
DHS decided that Robert would be best served by enrolling him in Stetson, a school that specializes in the treatment and education of juvenile sex offenders. This decision was not mandated by any court order and was done with the consent of Robert‘s mother. DHS remained Robert‘s legal custodian throughout his stay at Stetson and was authorized to remove him at any time if it was not fully satisfied with the services that Stetson was providing. In fact, at the urging of Robert‘s mother, DHS eventually did remove Robert from Stetson in March 1997.
Stetson is a private, residential institution located in Barre, Massachusetts. At the time of Robert‘s enrollment, Stetson had approximately 55 residential students and four or five commuter students. All of the Stetson students were sex offenders. Incorporated under Massachusetts law and licensed by the state, Stetson was governed by a board of trustees, the members of which were elected by a board of corporators. None of the members of the board of trustees or the board оf corporators were appointed by a government entity, and none were federal, state, or local employees.
Stetson‘s buildings and property were all privately owned and maintained, and Stetson had full control over its admissions process. Admissions decisions were made by a committee that reviewed appli-
In pursuing its mission of providing treatment and education to juvenile sex offenders, Stetson worked in close concert with state and local governments. For example, Stetson and the City of Philadelphia entered into various financial and performance contracts regarding Philadelphia children placed in the school. These contracts were entered into pursuant to the
Stetson provided a structured environment for its students. Students were not permitted to leave campus without supervision, were assigned bed times, were generally awakened at approximately the same time, and ate their meals at times set by the staff. Although the school did not require uniforms, it had a dress code.6 Students were allowed to use both computers and telephones, but when students used a telephone, a Stetson staff member was normally in the room for therapeutic reasons.7 Students were allowed to write and receive mail.
Some were also allowed to leave campus with supervision and to gо home for vacations. Stetson did not employ any mechanical or chemical restraints; the buildings did not have bars on the windows; and the school did not permit corporal or physical punishment.
Robert alleged that Stetson staff members subjected him to physical and psychological abuse, including wrestling with him and kicking and punching him. Robert claimed that this conduct violated Stetson‘s policy against “horseplay”8 and severely disrupted his treatment. He reported this
Not satisfied with the school‘s response, Robert filed this action, asserting claims under
II.
Embodying the state-action requirement of the
As noted, the Stetson School is a private institution, and thus the school and its employees do not formally wield the authority of the state. There are, however, some circumstances in which “seemingly private behavior ‘mаy fairly be treated as that of the State itself.’ ” Brentwood Acad. v. Tennessee Secondary Sch., 531 U.S. 288, 121 S.Ct. 924, 930, 148 L.Ed.2d 807 (2001) (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974)). The Supreme Court recently wrote that there are “a host of facts that can bear on the fairness of such an attribution” and that “[a]midst such variety, examples may be the best teachers.” Id. We therefore begin our analysis of the state-action question in this case with the Supreme Court‘s decision in Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982), which provides the example that is most closely analogous to the present case.
Rendell-Baker concerned the New Perspectives School, an institution with many similarities to the Stetson School. The New Perspectives School was a nonprofit institution that specialized in treating and educating students who had experienced difficulty completing public high schoоls (largely due to drug, alcohol, and behavioral problems). New Perspectives was a private school, located on private property, and operated by a private board of directors. Students who attended New Perspectives were generally referred by local school committees or the state department of health. The school committees paid New Perspectives for its services, and at least 90% of New Perspectives’ operating budget came from public funds. To be eligible for this funding, New Perspectives
Applying the factors discussed in Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982), a case handed down on the same day as Rendell-Baker, the Supreme Court held that New Perspectives’ discharge of employees was not state action. First, the Court rejected the argument that the school was a state actor because “virtually all of [its] income was derived from government funding.” Rendell-Baker, 457 U.S. at 840. The Court stated that “[a]cts of . . . private contractors do not become acts of the government by reason of their significant or even total engagement in performing public contracts.” Id. at 841. The Court likewise found no merit in the argument that extensive state regulation of the school was sufficient to make it a state actor, because the challenged conduct by New Perspectives “was not compelled or even influenсed by any state regulation.” Id. Next, the Court concluded that New Perspectives was not performing a function that had been “traditionally the exclusive prerogative of the State.” Id. at 842 (quoting Jackson, 419 U.S. at 353 (emphasis added in Rendell-Baker)). The Court recognized that “the education of maladjusted high school students is a public function” and that state law required that services be provided for these students at public expense. 457 U.S. at 842; see also id. at 845 (Marshall, J., dissenting). But the Court noted that “until recently the State had not undertaken to provide education for students who could not be served by the traditional public schools,” and the Court commented: “That a private entity performs a function which serves the public does not make its acts state action.” Id. Finally, the Court rejected the argument that there was a “symbiotic relationship” between New Perspectives and the state sufficient to make New Perspectives a state actor. The Court observed that “[t]he school‘s fiscal relationship with the State [was] not different from that of many contractors performing services for the government.” Id.
In light of Rendell-Baker, it is apparent that many of the factors upon which Robert relies here are insufficient to establish state action. For example, it is clear that Stetson‘s receipt of government funds did not make it a state actor. Similarly, although Robert relies on the detailed requirements set out in DHS‘s contracts with Stetson, those requirements are also insufficient because they did not “compel or even influence” the conduct on the part of the Stetson staff that Robert challenged. See American Mfrs. Mutual Ins. Co. v. Sullivan, 526 U.S. 40, 52, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (“mere fact that a business is subject to state regulation does not by itself convert its action into that of the State“); Black, 986 F.2d at 710-11 (pervasive regulation “made no difference” because the complained of conduct was “not compelled or even influenced by any state regulation“).
Robert argues, however, that the Stetson School, unlike the New Perspectives School, performed a function that has traditionally been the exclusive province of the state. Indeed, Robert‘s brief forswears reliance on any other theory of state action. See Appellant‘s Br. at 30 (“Only the Public Function Test is useful and relevаnt in reviewing the state actorship determination by the District Court in the present matter on appeal.“). As we have noted, this test imposes a “rigorous standard” that is “rarely . . . satisfied,” Mark, 51 F.3d at 1142, for “[w]hile many . . .
In this case, Robert has not made the requisite showing. As was true of the New Perspectives School in Rendell-Baker, the record here does not show that the Stetson School performed a function that has been traditionally the exclusive province of the state. In fact, the undisputed evidence showed that the only schools that offered services similar to those provided by Stetson were private schools. See Appendix at 149B (testimony of Richard Robinson indicating that he is unaware of any public schools that specialize in educating and treating sex offenders). The mere fact that Stetson “performs a function which serves the public does not makes its acts state action.” Rendell-Baker, 457 U.S. at 842.
This conclusion is supported by our decision in Black by Black v. Indiana Area Sch. Dist., 985 F.2d 707 (3d Cir.1993), a case involving a private bus company with which a school district had contracted to transport students to and from school. We found that case to be indistinguishable from Rendell-Baker, concluding that
[while [the company and the individual defendants affiliated with it] were carrying out a state program at state expense, they were not performing a function that has been “traditionally the exclusive prerogative of the state” and there was no state regulation that “compelled or even influenced” the conduct which is alleged to have violated plaintiffs’ constitutional rights.
Black by Black, 985 F.2d at 710-11. We went on to state that “as in Rendell-Baker, the cooperation between the [state and the contractor] was only that appropriate to the execution of the subject matter of the contract and the contractor‘s ‘fiscal relationship with the State is not different from that of many contractors performing services for the state.’ ” Id. at 711 (quoting Rendell-Baker, 457 U.S. at 843). Finally, although school busing is commonly thought of as a traditional state function, we concluded that the “state contractor was not providing a service within the exclusive province of the state.” Id. We believe that the facts of the present case warrant the same сonclusion.
Robert appears to suggest that this case is different because the services that Stetson provided were services that DHS was required by state law to provide. See Appellant‘s Br. at 21, 24, 46. This very argument, however, appears to have been rejected in Rendell-Baker. In dissent in that case, Justice Marshall highlighted the fact that the New Perspectives School “provide[d] a service that the State [was] required to provide” under a state statute enacted a few years earlier, 457 U.S. at 849 (Marshall, J., dissenting); see also id. at 845, but the Court was not persuaded. See 457 U.S. at 842 (“That legislative policy choice in no way makes these services the exclusive province of the State.“).
Stressing the restrictions placed on students’ liberty while attending the Stetson School, Robert argues that “thе involuntary nature of [his] commitment” made his situation there “entirely analogous to the situation of either a prisoner or mentally committed individual held against his/her will.” Appellant‘s Br. at 44. There is, however, no factual basis for analogizing Robert‘s situation at the Stetson School to that of a prisoner or a person who has been involuntarily civilly committed. Whether or not Robert, a minor at the time in question, personally wanted to at-
Finally, we do not believe that the present case is comparable to Milonas v. Williams, 691 F.2d 931 (10th Cir.1982), a case that Robert believes is directly on point. In Milonas, a class consisting of students at the Provo Canyon School for Boys brought section 1983 claims against the school and members of its staff, alleging that inhumane treatment at the school violated the Constitution. The Provo Canyon School, as described in the Tenth Circuit opinion, was an unusual facility. A private facility for boys with severe physical, psychological, and emotional problems, the school was described in the District Court opinion, which the Tenth Circuit quoted, as “not a school in the traditional, ordinary, classroom sense.” 691 F.2d at 935. Although the school did offer classes, the District Court observed, the school was “also a correctional and detention facility.” While students were generally admitted at the insistence of one or both of their parents, others were “received at the school directly from juvenile courts and probation officers from across the nation.” Id. at 936. Conditions at the school were unusually harsh and restrictive. Id. The District Court wrote:
Id. at 935-36.Students are restricted to the grounds. Students are confined. Some students are locked in and locked up with varying degrees of personal liberty restored as each progresses through the institutional program. If a student leaves without permission, he is hunted down, taken into custody and returned . . . . Regardless of origin, condition or motivation, once arrived, each person during the beginning phases of the school program was locked in, isolated from the outside world, and whether anti-social, crippled or learning disabled, was subject to mandated physical standing day after day after day to promote “right thinking” and “social conformity.” Mail was censored. Visitors were discouraged. Disparaging remarks concerning the institution were prohibited and punished. To “graduate” from confinement to a more liberated phase, one had to “pass” a lie detector test relating to “attitude,” “truthfulness” and “future conduct.” Some failed to pass and remained in confinement for extended periods of time.
The Tenth Circuit concluded that the state “ha[d] so insinuated itself with the Provo Canyon School as to be considered a joint participant in the offending actions.” Id. at 940. Thе Court relied on the involuntary commitment of some students, the school‘s detailed contracts with the school districts, the school‘s receipt of substantial state funding, and extensive state regulation. See id. Recognizing that the New Perspectives School in Rendell-Baker was “indeed quite similar” to the Provo Canyon
Milonas is not binding on us, and we cannot agree entirely with the court‘s reasoning. The Milonas court‘s reliance on “significant state funding of tuition” and the detailed contracts between the school and local school districts appeаrs to us to be squarely inconsistent with Rendell-Baker. Moreover, we are uncertain what the Milonas court had in mind when it sought to distinguish Rendell-Baker on the ground that the plaintiffs in that case were school employees, rather than students. There are, of course, circumstances in which this distinction might matter. (For example, a state directive might require a private entity to engage in the conduct challenged by a student while imposing no such requirement regarding conduct challenged by an employee.) But it is unclear why the Milonas court thought that it was important that the plaintiffs in the case before it were students. It is possible that the Milonas court took this view because it believed that some state officials “were aware of, and approved of” certain of the Provo Canyon School‘s practices concerning the treatment of students. It is not clear that even such awareness and approval would be enough to establish state action,10 but if this is not what the Milonas court had in
mind, the significance of the fact that the plaintiffs were students is obscure.
In any event, we need not decide whether we would agree with the Tenth Circuit on the facts presented in Milonas, because the case now before us is quite different. Here, Robert was not “involuntarily placed in the school by state officials who were aware of, and approved of” the practices attacked in Robert‘s complaint. Robert was enrolled at Stetson by his legal custodian and with his mother‘s consent, and we are aware of no evidence that any state officials were aware or approved of the conduct by the members of the Stetson staff that forms the basis of Robert‘s claims—much less any evidence that they “provided such significant encouragement, either overt or covert, that the [challenged conduct] must in law be deemed to be that of the [state].” Blum, 457 U.S. at 1004; see also San Francisco Arts & Athletics v. U.S.O.C., 483 U.S. 522, 546, 107 S.Ct. 2971, 97 L.Ed.2d 427 (1987).
Moreover, for what it is worth, there is simply no evidence that Stetson subjected its students to anything approaching the conditions at the Provo Canyon School. As far as the record here reveals, Stetson students were not placed in solitary confinement, discouraged from seeing visitors, required to take lie detector tests, or subjected to censorship of their mail. On the contrary, it is undisputed that Robert was allowed to leave campus with an instructor, had regular contact with his family (including frequent visits with his mother and step-father), was allowed to leave campus with his family, and was even allowed to go home for vacations.
In thе event that a student were to leave campus without permission, Stetson, like all responsible private or public schools, would notify local police for the student‘s own welfare and for the protection of the community. Stetson would not issue a warrant and arrest order because Stetson lacked the jurisdictional basis and the legal authority on its own to invoke custodial proceedings.
Appellees‘s Br. at 11 (citations to appendix omitted).
Robert has not referred us to any evidence in the record that supports his assertion that the school did more than simply notify the police department if a student left without permission.11 Nor has he referred us to any provision of Massachusetts statute or common law that gave Stetson any greater authоrity with respect to a missing student than is enjoyed by any of the state‘s other privately owned and run residential schools.
In sum, whether or not we would follow Milonas, we are satisfied that that case is easily distinguishable from the case before us. Particularly in light of the Supreme Court‘s decision in Rendell-Baker, we agree with the District Court that Robert failed to show that the challenged actions of the Stetson staff may be fairly attributed to the state.
III.
Robert also challenges two evidentiary rulings made by the District Court during the trial on his state-law claims. First, he argues that the District Court erred by limiting the expert testimony of Anne Wolbert Burgess, D.N.S., who was prepared to testify that the behavior to which Robert was subjected at Stetson constituted child abuse. The District Court accepted Burgess as an expert in сhild abuse, but the Court ruled that an expert opinion on the question whether specific conduct constituted child abuse would not be helpful to the jury under
Robert argues that the District Court erred in limiting Burgess‘s testimony. He claims that Burgess‘s testimony was offered to “help explain to the jury the ramifications, and implications, of uninvited physical contact by staff with Plaintiff, in the guise of horseplay.” Robert‘s Brief at 52. More specifically, he argues that expert testimony was necessary to explain that children “who act out sexually” and who have been the victims of sexual abuse “are at an increased risk for harm caused by . . . uninvited inappropriate physical contact.” See id. at 54. Therefore, he contends that the District Court made it impossible for him adequately to explain the seriousness of the horseplay by the Stetson staff. Id. at 55-56.
We review a District Court‘s decision to admit or reject testimony under Rule 403 for abuse of discretion, and, we will not reverse such a ruling “unless it is ‘arbitrary and irrational.’ ” Bhaya v. Westinghouse Elec. Corp., 922 F.2d 184, 187 (3d Cir.1990) (quoting United States v. DePeri, 778 F.2d 963, 973-74 (3d Cir.1985)), cert. denied, 501 U.S. 1217, 111 S.Ct. 2827, 115 L.Ed.2d 997 (1991). We hold that the District Court‘s ruling limiting Burgess‘s testimony under
In addition to Burgess, two other experts testified on Robert‘s behalf at trial. See Stetson‘s Brief at 58. These two witnesses, Edward J. Dougherty and Robert Prentky, both psychologists, testified at length about the impact that the alleged physical and mental abuse of Robert could have on someone with his history. See Appendix at 303B-309B (portion of Dougherty‘s testimony); 739B-746B (portion of Prentky‘s testimony). Both experts explained that someone like Robert, who has been the victim and perpetrator of sexual abuse, is particularly susceptible to harm caused by inappropriate contact. See id. at 307B-308B (explaining that, prior to entering Stetson, Robert had a “brittle personality due to numerous problems in his early development” and that the conduct at Stetson “caused him a great deal of stress and problems“); Appendix at 744B (“Child abuse, virtually by definition, involves some violation of boundaries . . . . Survivors of childhood physical abuse grow up with an awareness, a knowledge that their personal boundaries are highly permeable, so that learning to trust the integrity of one‘s own boundaries is profoundly important . . . . When a therapist violates personal space of survivors, it recapitulates all of the earlier experiences that are boundary violations.“). This testimony by Dougherty and Prentky addressed the same issues that Robert sought to address through Burgess‘s testimony. Therefore, the District Court had a reasonable basis for regarding that testimony as cumulative, and the District Court did not abuse its discretion in limiting Burgess‘s testimony.
Robert next maintains that the District Court erred in excluding certain evidence of prior bad acts by members of the Stetson staff. This included evidence of an incident in which a staff member (not one of the defendants) held a student over a balcony railing, evidence of an incident in which a staff member drove recklessly on campus with students in the van, evidence of the use of inappropriate language by staff members, and evidence of other incidents that did not involve Robert or the defendants. Robert argues that this evi-
Because of the distinct possibility that the jury likely would have considered the excluded evidence for precisely the purpose that
IV.
For the reasons discussed above, we affirm the judgment of the District Court.
Notes
- is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals. A determination that there is a lack of proper parental care or control may be based upon evidence of conduct by the parent, guardian or other custodian that places the health, safety or welfare of the child at risk, including evidence of the parent‘s, guardian‘s or other custodian‘s use of alcohol or a controlled substance that places the health, safety or welfare of the child at risk;
- has been placed for care or adoption in violation of law;
- has been abandoned by his parents, guardian, or other custodian;
- is without a parent, guardian, or legal custodian;
- while subject to compulsory school attendance is habitually and without justification truant from school;
- has committed a specific act or acts of habitual disobedience of the reasonable and lawful commands of his parent, guardian or other custodian and who is ungovernable and found to be in need of care, treatment or supervision;
- is under the age of ten years and has committed a delinquent act;
- has been formerly adjudicated dependent, and is under the jurisdiction of the court, subject to its conditions or placements and who commits an act which is defined as ungovernable in paragraph (6);
- has been referred pursuant to section 6323 (relating to informal adjustment), and who commits an act which is defined as ungovernable in paragraph (6); or
- is born to a parent whose parental rights with regard to another child have been involuntarily terminated under 23 Pa.C.S. § 2511 (relating to grounds for involuntary termination) within three years immediately preceding the date of birth of the child and conduct of the parent poses a risk to the health, safety or welfare of the child.
“Horseplay” or “roughhousing” is physical playing or teasing that has the real potential to lead to injury or a fight between students or between students and staff. If a staff identifies the play between students as “horseplay” or “roughhousing“, the student must stop thаt kind of play or interacting. Too often “horseplay” or “roughhousing” leads to dangerous play or fighting.