United States v. 2020-07-20 | 18-16348 | JOHN HEINEKE V. SANTA CLARA UNIVERSITY | precedential | opinion |

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOHN M. HEINEKE,
Plaintiff-Appellant,

v.

SANTA CLARA UNIVERSITY; JANE
DOE,
Defendants-Appellees.
No. 18-16348

D.C. No.
5:17-cv-05285-
LHK

OPINION

Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding

Argued and Submitted February 7, 2020
San Francisco, California

Filed July 20, 2020

Before: Richard A. Paez and Carlos T. Bea, Circuit Judges,
and Lynn S. Adelman,
*
District Judge.

Opinion by Judge Paez

*
The Honorable Lynn S. Adelman, United States District Judge for
the Eastern District of Wisconsin, sitting by designation.

2 HEINEKE V. SANTA CLARA UNIVERSITY

SUMMARY
**

Civil Rights

The panel affirmed the district court’s dismissal of an
action brought pursuant to 42 U.S.C. § 1983 alleging
violations of the Fourteenth Amendment and of state law
arising from the suspension and termination of plaintiff’s
employment.

Santa Clara University terminated plaintiff’s
employment as an economics professor after concluding that
plaintiff had sexually harassed his former student. The panel
stated that it could not conclude, on the basis of plaintiff’s
allegations, that Santa Clara University was a state actor.
The panel held that the University, as a private university,
does not become a state actor merely by virtue of being
required by generally applicable civil rights laws to
ameliorate sex (or any other form of) discrimination. The
panel further held that receipt of federal and state funds
conditioned on compliance with anti-discrimination laws is
insufficient to convert private conduct into state action. The
panel addressed plaintiff’s other claims in a concurrently
filed memorandum disposition.

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

HEINEKE V. SANTA CLARA UNIVERSITY 3

COUNSEL

Samuel Kornhauser (argued), Law Offices of Samuel
Kornhauser, San Francisco, California, for Plaintiff-
Appellant.

Don Willenburg (argued), Gordon & Rees LLP, Oakland,
California; Marcie Isom Fitzsimmons and Sara A. Moore,
Gordon & Rees LLP, San Francisco, California; for
Defendants-Appellees.

OPINION
PAEZ, Circuit Judge:
Defendant Santa Clara University (“SCU”) suspended
and later terminated the employment of Plaintiff John
Heineke (“Heineke”), a tenured economics professor, after
concluding that he had sexually harassed his former student,
Jane Doe. Heineke sued SCU and Doe in federal court under
42 U.S.C. § 1983 alleging violations of the Fourteenth
Amendment. He also alleged state tort and contract law
claims. The district court dismissed the constitutional
claims, denied leave to amend to add a federal statutory
claim, declined to exercise supplemental jurisdiction over
the remaining state law claims, and declined to order SCU to
reinstate Heineke to his tenured professorship. We affirm
the dismissal of the Fourteenth Amendment claims. We
address the denial of leave to amend, decision not to exercise
supplemental jurisdiction, and denial of the mandatory
injunction in a concurrently filed memorandum disposition.

4 HEINEKE V. SANTA CLARA UNIVERSITY

I.
John Heineke taught Jane Doe in his economics course
at Santa Clara University. The two met on several occasions
to discuss course materials. After Doe earned an “A” in the
class, Heineke offered her a position as a teaching assistant
for the following school year, which she accepted. A few
days before the class and Doe’s teaching assistant
obligations were to begin, Doe sent Heineke an email
stating, “I feel VERY VERY UNCOMFORTABLE when
somebody touch[es] my body, kiss[es] me in the face and
mouth, tell[s] me some sex joke, aka sexual harassment.” In
response to Doe’s email, Heineke wrote that he was
“stunned” and “devastated” by the accusation, and then
asked if she would still be his teaching assistant. Doe
complained to SCU about the alleged harassment but
ultimately did not pursue the complaint.
Subsequently, another student filed a complaint against
Heineke for unrelated incidents of alleged sexual
harassment. SCU hired a third-party investigator to
investigate the allegations, which the investigator ultimately
concluded were not supported by the evidence. While
investigating the other student’s allegations, however, the
investigator learned of Doe’s prior complaint and opened a
formal investigation into it. After interviewing Doe and
witnesses, the investigator issued a lengthy report, which
concluded that Heineke more likely than not had sexually
harassed Doe. Heineke appealed the finding to the provost,
who affirmed the determination, concluded that Heineke’s
conduct violated SCU’s harassment policy, and issued a
sanction of termination. Heineke then appealed to SCU’s
president, who upheld the termination, and later to SCU’s
Faculty Judicial Board, which held a hearing at which
Heineke was represented by counsel. The Faculty Judicial

HEINEKE V. SANTA CLARA UNIVERSITY 5

Board issued a unanimous decision affirming the
termination of Heineke’s employment.
While the campus proceedings were ongoing, Heineke
sued SCU and Doe in federal court. The operative complaint
alleges Fourteenth Amendment due process and equal
protection claims pursuant to 42 U.S.C. § 1983, as well as
claims for wrongful discharge, intentional infliction of
emotional distress, negligent infliction of emotional distress,
breach of contract, breach of the covenant of good faith and
fair dealing, and defamation.
The district court granted Defendants’ motion to dismiss
the constitutional claims on the ground that SCU’s conduct
was not subject to the Fourteenth Amendment. The court
then declined to exercise supplemental jurisdiction over the
remaining state law claims and dismissed the suit without
prejudice to refiling the state law claims in state court.
1

II.
We have jurisdiction pursuant to 28 U.S.C. §§ 1291,
1292(a)(1). We review de novo a district court’s grant of a
motion to dismiss, as well as its determination that a party is
not a state actor. Caviness v. Horizon Cmty. Learning Ctr.,
Inc., 590 F.3d 806, 811–12 (9th Cir. 2010). “[W]e accept all
factual allegations in the complaint as true and construe the
pleadings in the light most favorable to the nonmoving

1
Simultaneous to his appeal, Heineke filed a complaint and petition
for a writ of mandamus in Santa Clara County Superior Court, seeking
an order directing SCU to reinstate his employment. SCU and Doe
request that we take judicial notice of the complaint and petition pursuant
to Federal Rule of Evidence 201. Dkt. 21. We grant the request.

6 HEINEKE V. SANTA CLARA UNIVERSITY

party.” Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir.
2005).
III.
On appeal, Heineke argues that the district court erred in
dismissing his constitutional claim for failure to allege state
action. As a private university, SCU is not ordinarily
obligated to comply with constitutional due process
requirements. Sutton v. Providence St. Joseph Med. Ctr.,
192 F.3d 826, 835 (9th Cir. 1999). Heineke argues,
however, that SCU has become a state actor by virtue of the
federal government and State of California “coerc[ing]”
SCU into “enforc[ing] both federal and state anti-
discrimination . . . laws as a condition of obtaining federal
grant funds” such that SCU has become “‘a partner’ with the
government in enforcing these laws.” We disagree. Heineke
fails to allege sufficient facts to show that SCU is a state
actor for purposes of § 1983.
A.
“To state a claim for relief in an action brought under
§ 1983, [plaintiffs] must establish that they were deprived of
a right secured by the Constitution or laws of the United
States, and that the alleged deprivation was committed under
color of state law.” Am. Mfrs. Mut. Ins. Co. v. Sullivan,
526 U.S. 40, 49–50 (1999). Section 1983 “excludes from its
reach merely private conduct, no matter how discriminatory
or wrong.” Sutton, 192 F.3d at 835 (citation omitted).
We begin “with the presumption that private conduct
does not constitute governmental action.” Id. That
presumption may be overcome in limited circumstances,
such as where the state “has exercised coercive power or has
provided such significant encouragement” that the

HEINEKE V. SANTA CLARA UNIVERSITY 7

challenged action must be considered that of the state, Blum
v. Yaretsky, 457 U.S. 991, 1004 (1982), or where “the state
knowingly accepts the benefits derived from
unconstitutional behavior.” Kirtley v. Rainey, 326 F.3d
1088, 1093 (9th Cir. 2003) (quoting Parks Sch. of Bus., Inc.
v. Symington, 51 F.3d 1480, 1486 (9th Cir. 1995)).
2

B.
We begin with the allegations in the operative complaint,
which we accept as true. The complaint alleges, in relevant
part:
Defendant Santa Clara University . . . is a
purported “private” university which acts as
a “state actor” on behalf of the federal
government and on behalf of the State of
California in that SCU is funded, in large
part, by federal grants and contracts . . .
which all require, as a condition of such
fundings, that SCU have an Affirmative
Action Plan in place and that SCU certify, as
a condition of funding, that it does not
discriminate on the basis of age, gender,
religion, etc., and that SCU is subject to
oversight and de-funding and penalty for
failure to implement or comply with such
federal anti-discrimination laws . . . . These
federal funding requirements and restrictions
and penalties are designed to and, in fact, do

2
Because Heineke relies only on “governmental compulsion” and
“joint action” theories to advance his state action argument, we do not
consider the “public function” or “governmental nexus” tests. See
Sutton, 192 F.3d at 835–36.

8 HEINEKE V. SANTA CLARA UNIVERSITY

require SCU to act in fact and in reality as an
enforcement arm of the federal government
to carry out enforcement of these federal and
state anti-discrimination laws by coercing
SCU and/or by obtaining SCU’s cooperation
in enforcing . . . Title IX’s provisions against
gender discrimination, and California’s laws
against sexual harassment in the workplace
. . . which SCU has done by enacting an anti-
sexual harassment policy . . . to carry out the
federal and state governments’ enforcement
policies. SCU, as a state actor, has violated
. . . [Heineke’s] right to equal protection of
the laws [under] 29 U.S.C. §1983 [sic].
Heineke also alleges that SCU is “heavily funded by the
federal government” and the State of California. In total, the
complaint boils down to three allegations that purportedly
support the state action theory: (1) SCU receives federal and
state funds, (2) which are conditioned on compliance with
federal and state anti-discrimination laws and regulations,
including enacting an affirmative action plan and a sexual
harassment policy, (3) such that SCU may lose government
funds should it fail to comply with the law.
We cannot conclude, on the basis of these allegations,
that SCU is a state actor.
3
Receipt of government funds is

3
Although Heineke claims that SCU acted as both a federal and state
actor, he has pleaded only violations of the Fourteenth Amendment
pursuant to 42 U.S.C. § 1983. Only state actors, not federal entities, are
subject to the Fourteenth Amendment; accordingly, private entities may
be subjected to § 1983 liability only under a state action theory. See
Davis v. Passman, 442 U.S. 228, 238 n.16 (1979). Thus, Heineke’s
claim that the federal government compelled the challenged conduct
cannot support his claim that SCU is a state actor under the Fourteenth

HEINEKE V. SANTA CLARA UNIVERSITY 9

insufficient to convert a private university into a state actor,
even where “virtually all of the school’s income [i]s derived
from government funding.” Rendell-Baker v. Kohn,
457 U.S. 830, 840 (1982). Nor is compliance with generally
applicable laws sufficient to convert private conduct into
state action. See, e.g., Sutton, 192 F.3d at 841
(“[G]overnmental compulsion in the form of a generally
applicable law, without more, is [not] sufficient to deem a
private entity a governmental actor.”); Jackson v. Metro.
Edison Co., 419 U.S. 345, 350 (1974) (“The mere fact that a
business is subject to state regulation does not by itself
convert its action into that of the State for purposes of the
Fourteenth Amendment.”); Rendell-Baker, 457 U.S. at 833,
841–42, 848 (finding no state action where state regulation
required school to draft rules for dismissing employees and
comply with “an equal employment opportunity
requirement”); Kitchens, 825 F.2d at 1339–40 (same, where
federal law conditioned receipt of federal funds on
compliance with statutory and regulatory program
requirements). That a private actor’s conduct is subject to
penalties, such as loss of funding, is also insufficient to

Amendment. The Tenth Circuit recently reached a similar conclusion.
See Doe v. Univ. of Denver, 952 F.3d 1182, 1187–88 (10th Cir. 2020)
(holding that the plaintiff’s reliance “solely on evidence of the federal
government’s involvement in [a private university’s] affairs”—such as
the university’s compliance with Title IX and Department of Education
guidance—“has no bearing on whether the school is a state actor under
the Fourteenth Amendment, which is concerned only with the actions of
state governments”). To the extent that Heineke sought to allege a
federal action claim by his repeated references to the federal government
throughout the operative complaint, his allegations are insufficient to
show federal action for the same reasons he fails to allege state action.
See Kitchens v. Bowen, 825 F.2d 1337, 1340 (9th Cir. 1987) (“The
standards utilized to find federal action for purposes of the Fifth
Amendment are identical to those employed to detect state action subject
to the strictures of the Fourteenth Amendment.”) (citation omitted).

10 HEINEKE V. SANTA CLARA UNIVERSITY

convert private action into that of the state. See, e.g., Blum,
457 U.S. at 1010 (“[P]enalties imposed for violating the
regulations add nothing to respondents’ claim of state
action.”); Kitchens, 825 F.2d at 1339–40. Heineke does not
allege that the state government commanded a particular
result in, or otherwise participated in, his specific case. See,
e.g., Blum, 457 U.S. at 1010 (finding no state action where
government regulations did “not dictate the decision to
discharge or transfer in a particular case”) (emphasis
added); Sutton, 192 F.3d at 843; Pinhas v. Summit Health,
Ltd., 894 F.2d 1024, 1034 (9th Cir. 1989).
In short, SCU, as a private university, does not become a
state actor merely by virtue of being required by generally
applicable civil rights laws to ameliorate sex (or any other
form of) discrimination in educational activities as a
condition of receiving state funding. Our sister circuits have
reached similar conclusions. For instance, the Second
Circuit concluded that a private college’s termination of a
professor under its sexual harassment policy, which had
been formulated at the “urging” of the state human rights
commission, was not state action because the commission
“had no involvement in [the professor’s particular] case.”
Logan v. Bennington College Corp., 72 F.3d 1017, 1027–28
(2d Cir. 1995); see also Farapusi v. Case W. Reserve Univ.,
711 Fed. App’x 269, 275–76 (6th Cir. 2017) (finding no state
action where student suspended for sexual harassment
alleged that private university “acted under the color of state
law by enforcing Title IX”).
We note that dozens of district courts have addressed the
very same question presented here, namely whether
compliance with Title IX, related Department of Education
guidance, or state anti-discrimination laws and regulations
are sufficient to transform private schools into state actors.

HEINEKE V. SANTA CLARA UNIVERSITY 11

As far as we are aware, not one has recognized such a claim.
See Doe v. Washington Univ., 434 F. Supp. 3d 735, 749–50
(E.D. Mo. 2020) (collecting cases); Doe v. Case W. Reserve
Univ., No. 1:17 CV 414, 2017 WL 3840418, at *10 (N.D.
Ohio Sept. 1, 2017) (same).
4

In sum, we conclude that receipt of federal and state
funds conditioned on compliance with anti-discrimination
laws is insufficient to convert private conduct into state
action. Indeed, to accept Heineke’s argument would upend
our nation’s civil rights laws: As we reasoned in Sutton,
doing so would “convert every employer—whether it has
one employee or 1,000 employees—into a governmental
actor every time it complies with a presumptively valid,
generally applicable law.” Sutton, 192 F.3d at 838. This we
decline to do.
IV.
Because SCU’s alleged conduct is not sufficient to show
state action, we affirm the district court’s dismissal of

4
See also, e.g., Doe v. Harvard Univ., No. 1:18-cv-12150-IT, 2020
WL 2769945, at *8 (D. Mass. May 28, 2020); Vengalattore v. Cornell
Univ., 3:18-cv-1124 (GLS/TWD), 2020 WL 2104706, at *8 (N.D.N.Y.
May 1, 2020); Doe v. Transylvania Univ., No. 5:20-145-DCR, 2020 WL
1860696, at *8 (E.D. Ky. Apr. 13, 2020); Doe v. Oberlin College, No.
1:20 CV 669, 2020 WL 1696979, at *2 (N.D. Ohio Apr. 7, 2020);
Woytowicz v. George Washington Univ., 327 F. Supp. 3d 105, 116–20
(D.D.C. 2018); Rossley v. Drake Univ., No. 4:17-cv-00058-RGE-SBJ,
2017 WL 5634151, at *3 (S.D. Iowa Sept. 6, 2017); Tsuruta v.
Augustana Univ., No. 4:15-CV-04150-KES, 2015 WL 5838602, at *2–
3 (D.S.D. Oct. 7, 2015); Doe v. Washington & Lee Univ., No. 6:14-CV-
00052, 2015 WL 4647996, at *9 (W.D. Va. Aug. 5, 2015).

12 HEINEKE V. SANTA CLARA UNIVERSITY

Heineke’s § 1983 constitutional claims for failure to state a
claim for relief.
5

AFFIRMED.

5
Heineke’s contention that it is inappropriate to dismiss his § 1983
constitutional claims at the motion to dismiss stage, is unpersuasive. We
have accepted his allegations as true. Because he has failed to plead any
allegations sufficient to support his argument that SCU acted under color
of state law, however, his § 1983 claims must fail as a matter of law. The
district court did not err in granting the motion to dismiss.