Driver for Independent Bussing Contractor Held Not a “State Actor” for Purposes of Section 1983

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Driver for Independent Bussing Contractor Held Not a “State Actor” for Purposes of Section 1983: Santiago v. Puerto Rico, 655 F.3d 61 (1st Cir. 2011)

In Santiago v. Puerto Rico, the First Circuit Court of Appeals ruled that the Commonwealth of Puerto Rico cannot be held liable for the sexual abuse of a special needs student by a privately-employed bus driver. The plaintiff, a six-year-old boy, alleged that he was sexually abused by the bus driver during trips to and from school on October 15, 2003. The plaintiff suffered from profound hearing loss and, pursuant to the Individuals with Disabilities Education Act (IDEA), was under an individualized education plan at a federally-funded public school administered by the Commonwealth. Among the services provided to the plaintiff was specialized transportation to and from classes. The school contracted out the transportation services to a privately-owned bus company. In addition to claims brought against the Commonwealth as administrator of the school, the plaintiff also sued the bus company for civil rights violations under 42 U.S.C. § 1983. The District Court granted the bus company’s motion for summary judgment on the grounds that the driver was not acting “under color of state law” as required under Section 1983. The plaintiff appealed and the First Circuit affirmed.

Given that the bus company was undisputedly a private entity, the First Circuit analyzed whether the bus driver was a de facto state actor under the applicable three tests: (1) the public function test; (2) the state compulsion test; and (3) the nexus/joint action test. Under the first test, the Court reasoned that, since education itself is not a public function under previously-decided First Circuit law (e.g., Logiodice v. Trustees of Me. Cent. Inst., 296 F.3d 22, 26-27 (1st Cir. 2002)), it necessarily follows that an ancillary service to education, such as bussing, likewise cannot be a public function. As for the second state compulsion test, the Court noted that no regulation either compelled or encouraged the assailant’s conduct, and there was no evidence that the Commonwealth, in fact, exercised coercive power or control over the conduct alleged. Finally, the Court rejected the plaintiff’s claim that the Commonwealth and the bus company were mutually interdependent with respect to the bus company’s operations, noting there was no evidence that the company enjoyed special access to public facilities, used public equipment, or shared its profits with the Commonwealth. The evidence showed only that the Commonwealth paid the company to bus its special needs students using public funds. This was not enough, ruled the Court, to support an inference that the two were so entangled that the bus driver could fairly be characterized as a state actor.

Although the Santiago decision involves a private entity, its holding is nevertheless significant for public employers as well since the question of “state action” often arises in the context of whether a private person acted under color of state law for the purposes of imposing public employer liability under Section 1983. In describing the circumstances by which a private bus driver’s conduct constitutes state action, the First Circuit clarified the reasoning that may one day apply to a Section 1983 claim against a public employer based upon the conduct of a privately-employed driver, or indeed upon the conduct of any employee of an independent contractor. With that said, the Santiago decision confirms that the bussing of students will not be viewed as a “public function” by the First Circuit. In short, the public function test will never be applicable in such circumstances. Unless the public employer coerces or encourages a bus driver to violate the victim’s rights, or significantly insinuates itself into the bus company’s operations, the bus company (not the public employer) will be driving the bus for Section 1983 purposes.

Published in Developments in Municipal Law Winter 2012 Newsletter.