author:
      Justice Brennan
      Chief Justice Rehnquist,

text:
    BEECH AIRCRAFT CORPORATION v. RAINEY et al.
    No. 87-981.
    Argued October 4, 1988
    Decided December 12, 1988

      Jos. W. Womack argued the cause for petitioners in both cases and filed briefs for petitioner Beech Aircraft Corp. W. H. F. Wiltshire filed briefs for petitioner Beech Aerospace Services, Inc.

      Dennis K. Larry argued the cause for respondents in both cases. With him on the brief were Edward R. Curtis and Donald H. Partington.

      Together with No. 87-1028, Beech Aerospace Services, Inc. v. Rainey et al., also on certiorari to the same court.

   Justice Brennan

delivered the opinion of the Court.

In this action we address a longstanding conflict among the Federal Courts of Appeals over whether Federal Rule of Evidence 803(8)(C), which provides an exception to the hearsay rule for public investigatory reports containing “factual findings,” extends to conclusions and opinions contained in such reports. We also consider whether, on the facts of this litigation, the trial court abused its discretion in refusing to admit, on cross-examination, testimony intended to provide a more complete picture of a document about which the witness had testified on direct.

I

This litigation stems from the crash of a Navy training aircraft at Middleton Field, Alabama, on July 13, 1982, which took the lives of both pilots on board, Lieutenant Commander Barbara Ann Rainey and Ensign Donald Bruce Knowlton. The accident took place while Rainey, a Navy flight instructor, and Knowlton, her student, were flying “touch-and-go” exercises in a T-34C Turbo-Mentor aircraft, number 3E955. Their aircraft and several others flew in an oval pattern, each plane making successive landing/takeoff maneuvers on the runway. Following its fourth pass at the runway, 3E955 appeared to make a left turn prematurely, cutting out the aircraft ahead of it in the pattern and threatening a collision. After radio warnings from two other pilots, the plane banked sharply to the right in order to avoid the other aircraft. At that point it lost altitude rapidly, crashed, and burned.

Because of the damage to the plane and the lack of any survivors, the cause of the accident could not be determined with certainty. The two pilots’ surviving spouses brought a product liability suit against petitioners Beech Aircraft Corporation, the plane’s manufacturer, and Beech Aerospace Services, which serviced the plane under contract with the Navy. The plaintiffs alleged that the crash had been caused by a loss of engine power, known as “rollback,” due to some defect in the aircraft’s fuel control system. The defendants, on the other hand, advanced the theory of pilot error, suggesting that the plane had stalled during the abrupt avoidance maneuver.

At trial, the only seriously disputed question was whether pilot error or equipment malfunction had caused the crash. Both sides relied primarily on expert testimony. One piece of evidence presented by the defense was an investigative report prepared by Lieutenant Commander William Morgan on order of the training squadron’s commanding officer and pursuant to authority granted in the Manual of the Judge Advocate General. This “JAG Report,” completed during the six weeks following the accident, was organized into sections labeled “finding of fact,” “opinions,” and “recommendations,” and was supported by some 60 attachments. The “finding of fact” included statements like the following:

“13. At approximately 1020, while turning crosswind without proper interval, 3E955 crashed, immediately caught fire and burned.
“27. At the time of impact, the engine of 3E955 was operating but was operating at reduced power.” App. 10-12.

Among his “opinions” Lieutenant Commander Morgan stated, in paragraph 5, that due to the deaths of the two pilots and the destruction of the aircraft “it is almost impossible to determine exactly what happened to Navy 3E955 from the time it left the runway on its last touch and go until it impacted the ground.” He nonetheless continued with a detailed reconstruction of a possible set of events, based on pilot error, that could have caused the accident. The next two paragraphs stated a caveat and a conclusion:

“6. Although the above sequence of events is the most likely to have occurred, it does not change the possibility that a ‘rollback’ did occur.
“7. The most probable cause of the accident was the pilots [sic] failure to maintain proper interval.” Id., at 15. .

The trial judge initially determined, at a pretrial conference, that the JAG Report was sufficiently trustworthy to be admissible, but that it “would be admissible only on its factual findings and would not be admissible insofar as any opinions or conclusions are concerned.” Id., at 35. The day before trial, however, the court reversed itself and ruled, over the plaintiffs’ objection, that certain of the conclusions would be admitted. Id., at 40-41. Accordingly, the court admitted most of the report’s “opinions,” including the first sentence of paragraph 5 about the impossibility of determining exactly what happened, and paragraph 7, which opined about failure to maintain proper interval as “[t]he most probable cause of the accident.” Id., at 97. On the other hand, the remainder of paragraph 5 was barred as “nothing but a possible scenario,” id., at 40, and paragraph 6, in which investigator Morgan refused to rule out rollback, was deleted as well.

This action also concerns an evidentiary ruling as to a second document. Five or six months after the accident, plaintiff John Rainey, husband of the deceased pilot and himself a Navy flight instructor, sent a detailed letter to Lieutenant Commander Morgan. Based on Rainey’s own investigation, the letter took issue with some of the JAG Report’s findings and outlined Rainey’s theory that “[t]he most probable primary cause factor of this aircraft mishap is a loss of useful power (or rollback) caused by some form of pneumatic sensing/fuel flow malfunction, probably in the fuel control unit.” Id., at 104, 111.

At trial Rainey did not testify during his side’s case in chief, but he was called by the defense as an adverse witness. On direct examination he was asked about two statements contained in his letter. The first was to the effect that his wife had unsuccessfully attempted to cancel the ill-fated training flight because of a variety of adverse factors including her student’s fatigue. The second question concerned a portion of Rainey’s hypothesized scenario of the accident:

“Didn’t you say, sir, that after Mrs. Rainey’s airplane rolled wings level, that Lieutenant Colonel Habermacher’s plane came into view unexpectedly at its closest point of approach, although sufficient separation still existed between the aircraft. However, the unexpected proximitely [sic] of Colonel Habermacher’s plane caused one of the aircrew in Mrs. Rainey’s plane to react instinctively and abruptly by initiating a hard right turn away from Colonel Habermacher’s airplane?” Id., at 75.

Rainey admitted having made b'oth statements. On cross-examination, Rainey’s counsel asked the following question: “In the same letter to which Mr. Toothman made reference to in his questions, sir, did you also say that the most probably [sic] primary cause of this mishap was rollback?” Id., at 77. Before Rainey answered, the court sustained a defense objection on the ground that the question asked for Rainey’s opinion. Further questioning along this line was cut off.

Following a 2-week trial, the jury returned a verdict for petitioners. A panel of the Eleventh Circuit reversed and remanded for a new trial. 784 F. 2d 1523 (1986). Considering itself bound by the Fifth Circuit precedent of Smith v. Ithaca Corp., 612 F. 2d 215 (1980), the panel agreed with Rainey’s argument that Federal Rule of Evidence 803(8)(C), which excepts investigatory reports from the hearsay rule, did not encompass evaluative conclusions or opinions. Therefore, it held, the “conclusions” contained in the JAG Report should have been excluded. One member of the panel, concurring specially, urged however that the Circuit reconsider its interpretation of Rule 803(8)(C), suggesting that “Smith is an anomaly among the circuits.” 784 F. 2d, at 1530 (opinion of Johnson, J.). The panel also held, citing Federal Rule of Evidence 106, that it was reversible error for the trial court to have prohibited cross-examination about additional portions of Rainey’s letter which would have put in context the admissions elicited from him on direct.

On rehearing en banc, the Court of Appeals divided evenly on the question of Rule 803(8)(C). 827 F. 2d 1498 (CA11 1987). It therefore held that Smith was controlling and consequently reinstated the panel judgment. On the Rule 106 question, the court unanimously reaffirmed the panel’s decision that Rule 106 (or alternatively Rule 801(d)(1)(B)) required reversal. We granted certiorari to consider both issues. 485 U. S. 903 (1988).

II

Federal Rule of Evidence 803 provides that certain types of hearsay statements are not made excludable by the hearsay rule, whether or not the declarant is available to testify. Rule 803(8) defines the “public records and reports” which are not excludable, as follows:

“Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report,... or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.”

Controversy over what “public records and reports” are made not excludable by Rule 803(8)(C) has divided the federal courts from the beginning. In the present litigation, the Court of Appeals followed the “narrow” interpretation of Smith v. Ithaca Corp., supra, at 220-223, which held that the term “factual findings” did not encompass “opinions” or “conclusions.” Courts of Appeals other than those of the Fifth and Eleventh Circuits, however, have generally adopted a broader interpretation. For example, the Court of Appeals for the Sixth Circuit, in Baker v. Elcona Homes Corp., 588 F. 2d 551, 557-558 (1978), cert. denied, 441 U. S. 933 (1979), held that “factual findings admissible under Rule 803(8)(C) may be those which are made by the preparer of the report from disputed evidence . . . .” The other Courts of Appeals that have squarely confronted the issue have also adopted the broader interpretation. We agree and hold that factually based conclusions or opinions are not on that account excluded from the scope of Rule 803(8)(C).

Because the Federal Rules of Evidence are a legislative enactment, we turn to the “traditional tools of statutory-construction, ” INS v. Cardoza-Fonseca, 480 U. S. 421, 446 (1987), in order to construe their provisions. We begin with the language of the Rule itself. Proponents of the narrow view have generally relied heavily on a perceived dichotomy between “fact” and “opinion” in arguing for the limited scope of the phrase “factual findings.” Smith v. Ithaca Corp. contrasted the term “factual findings” in Rule 803(8) (C) with the language of Rule 803(6) (records of regularly conducted activity), which expressly refers to “opinions” and “diagnoses.” “Factual findings,” the court opined, must be something other than opinions. 612 F. 2d, at 221-222.

For several reasons, we do not agree. In the first place, it is not apparent that the term “factual findings” should be read to mean simply “facts” (as opposed to “opinions” or “conclusions”). A common definition of “finding of fact” is, for example, “[a] conclusion by way of reasonable inference from the evidence.” Black’s Law Dictionary 569 (5th ed. 1979). To say the least, the language of the Rule does not compel us to reject the interpretation that “factual findings” includes conclusions or opinions that flow from a factual investigation. Second, we note that, contrary to what is often assumed, the language of the Rule does not state that “factual findings” are admissible, but that “reports . . . setting forth . . . factual findings” (emphasis added) are admissible. On this reading, the language of the Rule does not create a distinction between “fact” and “opinion” contained in such reports.

Turning next to the legislative history of Rule 803(8)(C), we find no clear answer to the question of how the Rule’s language should be interpreted. Indeed, in this litigation the legislative history may well be at the origin of the dispute. Rather than the more usual situation where a court must attempt to glean meaning from ambiguous comments of legislators who did not focus directly on the problem at hand, here the Committees in both Houses of Congress clearly recognized and expressed their opinions on the precise question at issue. Unfortunately, however, they took diametrically opposite positions. Moreover, the two Houses made no effort to reconcile their views, either through changes in the Rule’s language or through a statement in the Report of the Conference Committee.

The House Judiciary Committee, which dealt first with the proposed rules after they had been transmitted to Congress by this Court, included in its Report but one brief paragraph on Rule 803(8):

“The Committee approved Rule 803(8) without substantive change from the form in which it was submitted by the Court. The Committee intends that the phrase ‘factual findings’ be strictly construed and that evaluations or opinions contained in public reports shall not be admissible under this Rule.” H. R. Rep. No. 93-650, p. 14 (1973).

The Senate Committee responded at somewhat greater length, but equally emphatically:

“The House Judiciary Committee report contained a statement of intent that ‘the phrase “factual findings” in subdivision (c) be strictly construed and that evaluations or opinions contained in public reports shall not be admissible under this rule.’ The committee takes strong exception to this limiting understanding of the application of the rule. We do not think it reflects an understanding of the intended operation of the rule as explained in the Advisory Committee notes to this subsection. . . . We think the restrictive interpretation of the House overlooks the fact that while the Advisory Committee assumes admissibility in the first instance of evaluative reports, they are not admissible if, as the rule states, ‘the sources of information or other circumstances indicate lack of trustworthiness.’
“The committee concludes that the language of the rule together with the explanation provided by the Advisory Committee furnish sufficient guidance on the admissibility of evaluative reports.” S. Rep. No. 93-1277, p. 18 (1974).

Clearly this legislative history reveals a difference of view between the Senate and the House that affords no definitive guide to the congressional understanding. It seems clear however that the Senate understanding is more in accord with the wording of the Rule and with the comments of the Advisory Committee.

The Advisory Committee’s comments are notable, first, in that they contain no mention of any dichotomy between statements of “fact” and “opinions” or “conclusions.” What was on the Committee’s mind was simply whether what it called “evaluative reports” should be admissible. Illustrating the previous division among the courts on this subject, the Committee cited numerous cases in which the admissibility of such reports had been both sustained and denied. It also took note of various federal statutes that made certain kinds of evaluative reports admissible in evidence. What is striking about all of these examples is that these were reports that stated conclusions. E. g., Moran v. Pittsburgh-Des Moines Steel Co., 183 F. 2d 467, 472-473 (CA3 1950) (report of Bureau of Mines concerning the cause of a gas tank explosion admissible); Franklin v. Skelly Oil Co., 141 F. 2d 568, 571-572 (CA10 1944) (report of state fire marshal on the cause of a gas explosion inadmissible); 42 U. S. C. § 269(b) (bill of health by appropriate official admissible as prima facie evidence of vessel’s sanitary history and condition). The Committee’s concern was clearly whether reports of this kind should be admissible. Nowhere in its comments is there the slightest indication that it even considered the solution of admitting only “factual” statements from such reports. Rather, the Committee referred throughout to “reports,” without any such differentiation regarding the statements they contained. What the Committee referred to in the Rule’s language as “reports . . . setting forth . . . factual findings” is surely nothing more or less than what in its commentary it called “evaluative reports.” Its solution as to their admissibility is clearly stated in the final paragraph of its report on this Rule. That solution consists of two principles: First, “the rule . . . assumes admissibility in the first instance . . . .” Second, it provides “ample provision for escape if sufficient negative factors are present.”

That “provision for escape” is contained in the final clause of the Rule: evaluative reports are admissible “unless the sources of information or other circumstances indicate lack of trustworthiness.” This trustworthiness inquiry — and not an arbitrary distinction between “fact” and “opinion” — was the Committee’s primary safeguard against the admission of unreliable evidence, and it is important to note that it applies to all elements of the report. Thus, a trial judge has the discretion, and indeed the obligation, to exclude an entire report or portions thereof — whether narrow “factual” statements or broader “conclusions” — that she determines to be untrustworthy. Moreover, safeguards built into other portions of the Federal Rules, such as those dealing with relevance and prejudice, provide the court with additional means of scrutinizing and, where appropriate, excluding evaluative reports or portions of them. And of course it goes without saying that the admission of a report containing “conclusions” is subject to the ultimate safeguard — the opponent’s right to present evidence tending to contradict or diminish the weight of those conclusions.

Our conclusion that neither the language of the Rule nor the intent of its framers calls for a distinction between “fact” and “opinion” is strengthened by the analytical difficulty of drawing such a line. It has frequently been remarked that the distinction between statements of fact and opinion is, at best, one of degree:

“All statements in language are statements of opinion, i. e., statements of mental processes or perceptions. So-called ‘statements of fact’ are only more specific statements of opinion. What the judge means to say, when he asks the witness to state the facts, is: ‘The nature of this case requires that you be more specific, if you can, in your description of what you saw.’” W. King & D. Pillinger, Opinion Evidence in Illinois 4 (1942) (footnote omitted), quoted in 3 J. Weinstein & M. Berger, Weinstein’s Evidence ¶701[01], p. 701-6 (1988).

See also E. Cleary, McCormick on Evidence 27 (3d ed. 1984) (“There is no conceivable statement however specific, detailed and ‘factual,’ that is not in some measure the product of inference and reflection as well as observation and memory”); R. Lempert & S. Saltzburg, A Modern Approach to Evidence 449 (2d ed. 1982) (“A factual finding, unless it is a simple report of something observed, is an opinion as to what more basic facts imply”). Thus, the traditional requirement that lay witnesses give statements of fact rather than opinion may be considered, “[l]ike the hearsay and original documents rules ... a ‘best evidence’ rule.” McCormick, Opinion Evidence in Iowa, 19 Drake L. Rev. 245, 246 (1970).

In the present action, the trial court had no difficulty in admitting as a factual finding the statement in the JAG Report that “[a]t the time of impact, the engine of 3E955 was operating but was operating at reduced power.” Surely this “factual finding” could also be characterized as an opinion, which the investigator presumably arrived at on the basis of clues contained in the airplane wreckage. Rather than requiring that we draw some inevitably arbitrary line between the various shades of fact/opinion that invariably will be present in investigatory reports, we believe the Rule instructs us-as its plain language states — to admit “reports . . . setting forth . . . factual findings.” The Rule’s limitations and safeguards lie elsewhere: First, the requirement that reports contain factual findings bars the admission of statements not based on factual investigation. Second, the trustworthiness provision requires the court to make a determination as to whether the report, or any portion thereof, is sufficiently trustworthy to be admitted.

A broad approach to admissibility under Rule 803(8)(C), as we have outlined it, is also consistent with the Federal Rules’ general approach of relaxing the traditional barriers to “opinion” testimony. Rules 702-705 permit experts to testify in the form of an opinion, and without any exclusion of opinions on “ultimate issues.” And Rule 701 permits even a lay witness to testify in the form of opinions or inferences drawn from her observations when testimony in that form will be helpful to the trier of fact. We see no reason to strain to reach an interpretation of Rule 803(8)(C) that is contrary to the liberal thrust of the Federal Rules.

We hold, therefore, that portions of investigatory reports otherwise admissible under Rule 803(8)(C) are not inadmissible merely because they state a conclusion or opinion. As long as the conclusion is based on a factual investigation and satisfies the Rule’s trustworthiness requirement, it should be admissible along with other portions of the report. As the trial judge in this action determined that certain of the JAG Report’s conclusions were trustworthy, he rightly allowed them to be admitted into evidence. We therefore reverse the judgment of the Court of Appeals in respect of the Rule 803(8)(C) issue.

Ill

Respondents also contended on appeal that reversal was required because the District Court improperly restricted the cross-examination of plaintiff Rainey by his own counsel in regard to the letter Rainey had addressed to Lieutenant Commander Morgan. We agree with the unanimous holding of the Court of Appeals en banc that the District Court erred in refusing to permit Rainey to present a more complete picture of what he had written to Morgan.

We have no doubt that the jury was given a distorted and prejudicial impression of Rainey’s letter. The theory of Rainey’s case was that the accident was the result of a power failure, and, read in its entirety, his letter to Morgan was fully consistent with that theory. While Rainey did discuss problems his wife had encountered the morning of the accident which led her to attempt to cancel the flight, and also agreed that her airplane had violated pattern integrity in turning left prematurely, the thrust of his letter was to challenge Morgan’s theory that the crash had been caused by a stall that took place when the pilots turned sharply right and pitched up in attempting to avoid the other plane. Thus Rainey argued that Morgan’s hypothesis was inconsistent with the observations of eyewitnesses, the physical findings in the wreckage, and the likely actions of the two pilots. He explained at length his theory of power failure and attempted to demonstrate how the various pieces of evidence supported it. What the jury was told, however, through the defendants’ direct examination of Rainey as an adverse witness, was that Rainey had written six months after the accident (1) that his wife had attempted to cancel the flight, partly because her student was tired and emotionally drained, and that “unnecessary pressure” was placed on them to proceed with it; and (2) that she or her student had abruptly initiated a hard right turn when the other aircraft unexpectedly came into view. It is plausible that a jury would have concluded from this information that Rainey did not believe in his theory of power failure and had developed it only later for purposes of litigation. Because the court sustained defense counsel’s objection, Rainey’s counsel was unable to counteract this prejudicial impression by presenting additional information about the letter on cross-examination.

The common-law “rule of completeness,” which underlies Federal Rule of Evidence 106, was designed to prevent exactly the type of prejudice of which Rainey complains. In its aspect relevant to this litigation, the rule of completeness was stated succinctly by Wigmore: “[T]he opponent, against whom a part of an utterance has been put in, may in his turn complement it by putting in the remainder, in order to secure for the tribunal a complete understanding of the total tenor and effect of the utterance. ” 7 J. Wigmore, Evidence in Trials at Common Law §2113, p. 653 (J. Chadbourn rev. 1978). The Federal Rules of Evidence have partially codified the doctrine of completeness in Rule 106:

“When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.”

In proposing Rule 106, the Advisory Committee stressed that it “does not in any way circumscribe the right of the adversary to develop the matter on cross-examination or as part of his own case.” Advisory Committee’s Notes on Fed. Rule Evid. 106, 28 U. S. C. App., p. 682. We take this to be a reaffirmation of the obvious: that when one party has made use of a portion of a document, such that misunderstanding or distortion can be averted only through presentation of another portion, the material required for completeness is ipso facto relevant and therefore admissible under Rules 401 and 402. See 1J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 106[02], p. 106-20 (1986). The District Court’s refusal to admit the proffered completion evidence was a clear abuse of discretion.

While much of the controversy in this suit has centered on whether Rule 106 applies, we find it unnecessary to address that issue. Clearly the concerns underlying Rule 106 are relevant here, but, as the general rules of relevancy permit a ready resolution to this litigation, we need go no further in exploring the scope and meaning of Rule 106.

Unfortunately for the clarity of the proceedings, the defendants’ objection to the question put by Rainey’s counsel was couched not in terms of relevance but rather as calling for an opinion. While the question put to Rainey indeed inquired about an opinion Rainey had earlier expressed, it should have been obvious from the context that the purpose of the question was not to elicit Rainey’s opinion on the cause of the accident. Rather, Rainey was asked, in effect, whether he had made a certain statement in his letter. That was a question he was eminently qualified to answer. Counsel’s objection that Rainey was not entitled to give opinion evidence could not avail in view of the obvious purpose for which the statement was offered.

Petitioners have also objected that Rainey waived the right to pursue this issue on appeal because he did not properly raise it in the trial court. We disagree. Rule 103(a)(2) requires, in the first place, that to preserve an argument that evidence was wrongly excluded the proponent must make known the substance of the evidence sought to be admitted by an offer of proof unless it “was apparent from the context within which questions were asked.” Here the nature of the proposed testimony was abundantly apparent from the very question put by Rainey’s counsel. The proponent must also comply with Federal Rule of Civil Procedure 46, which requires that a party seeking to preserve an objection to the court’s ruling must “mak[e] known to the court the action which the party desires the court to take or the party’s objection to the action of the court and the grounds therefor.” Although, as is frequently the case in the heat of a trial, counsel did not explain the evidentiary basis of his argument as thoroughly as might ideally be desired, we are satisfied that he substantially satisfied the requirement of putting the court on notice as to his concern. In the colloquy following the defense objection to his question, and before he was cut off first by defense counsel and then by the judge, Rainey’s counsel began to articulate the argument that his question should be allowed because the defense had been able to question Rainey concerning his letter. Moreover, the judge’s response suggests that he perceived the completeness argument. We cannot say that the point was not sufficiently made. Rainey therefore was not barred from pursuing this issue on appeal.

IV

We hold, first, that statements in the form of opinions or conclusions are not by that fact excluded from the scope of Federal Rule of Evidence 803(8)(C). We therefore reverse the judgment of the Court of Appeals in that respect. Second, we hold that on the facts of this litigation the District Court abused its discretion in restricting the scope of cross-examination of respondent Rainey by his counsel, and to that extent we affirm the Court of Appeals’ judgment. The case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Chief Justice Rehnquist,

with whom

Justice O’Con-nor joins, concurring in part and dissenting in part.

I join Parts I and II of the Court’s opinion, but dissent from Part III. I do not believe the District Court abused its discretion in refusing to admit this particular testimony. The Court concedes that “counsel did not explain the evidentiary basis of his argument'as thoroughly as might ideally be desired ...” ante, at 174, but I would go further and say that counsel’s brief presentation to the District Court was ambiguous at best.

Rainey’s attorney was faced with an objection to testimony he wished to elicit from his client based on opposing counsel’s perception that it would be nonexpert opinion. He responded by saying “[o]n the basis that this letter constitutes an admission by Commander Rainey, he has been asked to answer every single question [opposing counsel] had respecting — .” App. 77. At that point the court cut in with an explanation of why that answer was insufficient. The judge explained:

“I don’t recall going into anything except the matter about the right turn and so forth, and that’s all he went into. He did express that opinion and that came in as an admission against him, I suppose, but that doesn’t mean you can[’t] qualify him for the questions you are now asking. The objection is sustained.” Id., at 78.

Rainey’s lawyer seems to have been arguing that, because no one objected to Rainey’s answers to defendant’s questions about the letter as nonexpert opinion, Rainey should be able to answer similar questions put by his own attorney without that objection. The argument looks more like one based on fairness or waiver (often known as “opening the door”) than one based specifically on completeness. That is how the judge understood it. He explained his ruling sustaining the objection by noting that although the defense questioning had elicited some opinion, it was admissible on other grounds and then suggested that Rainey’s lawyer qualify Rainey as an expert. Here the trial judge ruled on the basis of a reasonable understanding of respondents’ stated reasons for allowing the evidence to be admitted, and the trial judge made this understanding clear to respondents’ counsel. The evidence was not admissible under this view, and counsel made no attempt to clarify his position.

Today, the Court offers sound reasons for the admission of the testimony in question, but they are reasons which it has adduced from briefs and careful research, not the reasons expressed by counsel at trial.

“If counsel specifies a purpose for which the proposed evidence is inadmissible and the judge excludes, counsel cannot complain of the ruling on appeal though it could have been rightly admitted for another purpose.” E. Cleary, McCormick on Evidence §51, p. 125 (3d ed. 1984).

Trial judges do not have the luxury of briefs or research when making a typical evidentiary ruling, and for this reason we have traditionally required the proponent of evidence to defend it against objection by showing why it should be admissible. Federal Rule of Evidence 103(a)(2) requires an “offer of proof” in order to preserve for review a perceived error excluding evidence. Most courts and treatises have interpreted the need for an “offer of proof” as requiring a specific and timely defense of the evidence. See 1 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 103[03], pp. 103-36 to 103-38 (1988); 21 C. Wright & K. Graham, Federal Practice and Procedure §5040, pp. 209-211 (1977); United States v. Peters, 732 F. 2d 1004 (CA1 1984); United States v. Grapp, 653 F. 2d 189, 194 (CA5 1981); Huff v. White Motor Corp., 609 F. 2d 286 (CA7 1979). The need for a showing of evidence is the same, whether it is an essential part of the “offer of proof,” or, as the Court agrees, required by Federal Rule of Civil Procedure 46.

The disagreement in these cases is not about applicable Rules of Evidence, but how a trial judge should fairly have understood an offer of proof under these circumstances. This Court, far removed from the factual context and on the basis of a cold record, is in no position to say that the trial court’s ruling in this situation was an abuse of discretion. Cf. Anderson v. Bessemer City, 470 U. S. 564, 575 (1985).

      The manufacturer of the plane’s engine, Pratt & Whitney Canada, Ltd., was also a defendant, but it subsequently settled with respondents and is no longer a party to this action.

       Paragraph 5 reads in its entirety as follows:
      “Because both pilots were killed in the crash and because of the nearly total destruction of the aircraft by fire, it is almost impossible to determine exactly what happened to Navy 3E955 from the time it left the runway on its last touch and go until it impacted the ground. However, from evidence available and the information gained from eyewitnesses, a possible scenario can be constructed as follows:
      “a. 3E955 entered the Middleton pattern with ENS Knowlton at the controls attempting to make normal landings.
      “b. After two unsuccessful attempts, LCDR Rainey took the aircraft and demonstrated two landings ‘on the numbers.’ After getting the aircraft safely airborne from the touch and go, LCDR Rainey transferred control to ENS Knowlton.
      “c. Due to his physical strength, ENS Knowlton did not trim down elevator as the aircraft accelerated toward 100 knots; in fact, due to his inexperience, he may have trimmed incorrectly, putting in more up elevator.
      “d. As ENS Knowlton was climbing to pattern altitude, he did not see the aircraft established on downwind so he began his crosswind turn. Due to ENS Knowlton’s large size, LCDR Rainey was unable to see the conflicting traffic.
      “e. Hearing the first call, LCDR Rainey probably cautioned ENS' Knowlton to check for traffic. Hearing the second call, she took immediate action and told ENS Knowlton she had the aircraft as she initiated a turn toward an upwind heading.
      “f. As the aircraft was rolling from a climbing left turn to a climbing right turn, ENS Knowlton released the stick letting the up elevator trim take effect causing the nose of the aircraft to pitch abruptly up.
      “g. The large angle of bank used trying to maneuver for aircraft separation coupled with the abrupt pitch up caused the aircraft to stall. As the aircraft stalled and went into a nose low attitude, LCDR Rainey reduced the PCL (power control lever) toward idle. As she was rolling toward wings level, she advanced the PCL to maximum to stop the loss of altitude but due to the 2 to 4 second lag in engine response, the aircraft impacted •the ground before power was available.” App. 14-15.

       The record gives no indication why paragraph 6 was deleted. See, e. g., id., at 40 (striking most of paragraph 5, as well as paragraphs 8 and 9, but silent on paragraph 6). Neither at trial nor on appeal have respondents raised any objection to the deletion of paragraph 6.

       In Bonner v. Prichard, 661 F. 2d 1206 (1981), the newly created Eleventh Circuit adopted as binding precedent Fifth Circuit decisions rendered prior to October 1981.

       In the alternative the court held that Rainey’s testimony should have been admitted as a prior consistent statement under Rule 801(d)(1)(B).

        Baker involved a police officer’s report on an automobile accident. While there was no direct witness as to the color of the traffic lights at the moment of the accident, the court held admissible the officer’s conclusion on the basis of his investigations at the accident scene and an interview with one of the drivers that “apparently unit #2 . . . entered the intersection against a red light.” 588 F. 2d, at 555.

      See Melville v. American Home Assurance Co., 584 F. 2d 1306, 1315-1316 (CA3 1978); Ellis v. International Playtex, Inc., 745 F. 2d 292, 300-301 (CA4 1984); Kehm v. Procter & Gamble Mfg. Co., 724 F. 2d 613, 618 (CA8 1983); Jenkins v. Whittaker Corp., 785 F. 2d 720, 726 (CA9), cert. denied, 479 U. S. 918 (1986); Perrin v. Anderson, 784 F. 2d 1040, 1046-1047 (CA10 1986).
      Nor is the scope of Rule 803(8)(C) unexplored terrain among legal scholars. The leading evidence treatises are virtually unanimous in recommending the broad approach. See E. Cleary, McCormick on Evidence 890, n. 7 (3d ed. 1984); M. Graham, Handbook of Federal Evidence 886 (2d ed. 1986); R. Lempert & S. Saltzburg, A Modern Approach to Evidence 449-450 (2d ed. 1982); G. Lilly, An Introduction to the Law of Evidence 275-276 (2d ed. 1987); 4 D. Louisell & C. Mueller, Federal Evidence § 455, pp. 740-741 (1980); 4 J. Weinstein & M. Berger, Weinstein’s Evidence ¶803(8)[03], pp. 803-250 to 803-252 (1987). See generally Grant, The Trustworthiness Standard for the Public Records and Reports Hearsay Exception, 12 Western St. U. L. Rev. 53, 81-85 (1984) (favoring broad admissibility); Note, The Scope of Federal Rule of Evidence 803(8)(C), 59 Texas L. Rev. 155 (1980) (advocating narrow interpretation); Comment, The Public Documents Hearsay Exception for Evaluative Reports: Fact or Fiction?, 63 Tulane L. Rev. 121 (1988) (same).

       The court in Smith found it significant that different language was used in Rules 803(6) and 803(8)(C): “Since these terms are used in similar context within the same Rule, it is logical to assume that Congress intended that the terms have different and distinct meanings.” 612 F. 2d, at 222. The Advisory Committee Notes to Rule 803(6) make clear, however, that the Committee was motivated by a particular concern in drafting the language of that Rule. While opinions were rarely found in traditional “business records,” the expansion of that category to encompass documents such as medical diagnoses and test results brought with it some uncertainty in earlier versions of the Rule as to whether diagnoses and the like were admissible. “In order to make clear its adherence to the [position favoring admissibility],” the Committee stated, “the rule specifically includes both diagnoses and opinions, in addition to acts, events, and conditions, as proper subjects of admissible entries.” Advisory Committee’s Notes on Fed. Rule Evid. 803(6), 28 U. S. C. App., p. 723. Since that specific concern was not present in the context of Rule 803(8)(C), the absence of identical language should not be accorded much significance. See 827 F. 2d, 1498, 1511-1512 (CA11 1987) (en banc) (Tjoflat, J., concurring). What is more, the Committee’s report on Rule 803(8)(C) strongly suggests that that Rule has the same scope of admissibility as does Rule 803(6): “Hence the rule, as in Exception [paragraph] (6), assumes admissibility in the first instance but with ample provision for escape if sufficient negative factors are present.” Advisory Committee’s Notes on Fed. Rule Evid. 803(8), 28 U. S. C. App., p. 725 (emphasis added).

      See Advisory Committee’s Notes on Fed. Rule Evid. 803(8), 28 U. S. C. App., pp. 724-725. As Congress did not amend the Advisory Committee’s draft in any way that touches on the question before us, the Committee’s commentary is particularly relevant in determining the meaning of the document Congress enacted.

       Our conclusion that the Committee was concerned only about the question of the admissibility vel non of “evaluative reports,” without any distinction between statements of “fact” and “conclusions,” draws support from the fact that this was the focus of scholarly debate on the official reports question prior to adoption of the Federal Rules. Indeed, the problem was often phrased as whether official reports could be admitted in view of the fact that they contained the investigator’s conclusions. Thus Professor McCormick, in an influential article relied upon by the Committee, stated his position as follows: “[E]valuative reports of official investigators, though partly based upon statements of others, and though embracing conclusions, are admissible as evidence of the facts reported.” McCormick, Can the Courts Make Wider Use of Reports of Official Investigations?, 42 Iowa L. Rev. 363, 365 (1957) (emphasis added).

       The Advisory Committee proposed a nonexclusive list of four factors it thought would be helpful in passing on this question: (1) the timeliness of the investigation; (2) the investigator’s skill or experience; (3) whether a hearing was held; and (4) possible bias when reports are prepared with a view to possible litigation (citing Palmer v. Hoffman, 318 U. S. 109 (1943)). Advisory Committee’s Notes on Fed. Rule Evid. 803(8), 28 U. S. C. App., p. 725; see Note, The Trustworthiness of Government Evaluative Reports under Federal Rule of Evidence 803(8)(C), 96 Harv. L. Rev. 492 (1982).
      In a case similar in many respects to these, the trial court applied the trustworthiness requirement to hold inadmissible a JAG Report on the causes of a Navy airplane accident; it found the report untrustworthy because it “was prepared by an inexperienced investigator in a highly complex field of investigation.” Fraley v. Rockwell Int’l Corp., 470 F. Supp. 1264, 1267 (SD Ohio 1979). In the present litigation, the District Court found the JAG Report to be trustworthy. App. 35. As no party has challenged that finding, we have no occasion to express an opinion on it.

       The cited Rules refer, of course, to situations — unlike that at issue— where the opinion testimony is subject to cross-examination. But the determination that cross-examination was not indispensable in regard to official investigatory reports has already been made, and our point is merely that imposing a rigid distinction between fact and opinion would run against the Rules’ tendency to deemphasize that dichotomy.

       We emphasize that the issue in this litigation is whether Rule 803(8) (C) recognizes any difference between statements of “fact” and “opinion.” There is no question here of any distinction between “fact” and “law.” We thus express no opinion on whether legal conclusions contained in an official report are admissible as “findings of fact” under Rule 803(8)(C).

       In addition to this concern that the court not be misled because portions of a statement are taken out of context, the rule has also addressed the danger that an out-of-context statement may create such prejudice that it is impossible to repair by a subsequent presentation of additional material. The issue in this litigation, however, involves only the first concern.

       Nor, in view of our disposition of the action, need we address the alternative ground cited by the Court of Appeals for its decision, namely that Rainey’s proposed testimony would have constituted a “prior consistent statement” under Rule 801(d)(1)(B).

       The colloquy before the District Court was as follows:
      “Q. One last point. In the same letter to which Mr. Toothman made reference to in his questions, sir, did you also say that the most probably [sic] primary cause of this mishap was rollback?
      “Mr. Toothman: I would object to this, Your Honor. Probable cause is an opinion.
      “The Court: I beg your pardon?
      “Mr. Toothman: He’s trying to get an opinion out of him now, not a fact.
      “The Court: Objection sustained.
      “Mr. Larry: Your Honor, he has had the ability—
      “Mr. Toothman: I object to him arguing.
      “Mr. Larry: May I be heard on this?
      “The Court: Yes, sir. Go ahead.
      “Mr. Larry: On the basis that this letter constitutes an admission by Commander Rainey, he has been asked to answer every single question Mr. Toothman had respecting—
      “The Court: I don’t recall going into anything except the matter about that right turn and so forth, and that’s all he went into. He did express that opinion and that came in as an admission against him, I suppose, but that doesn’t mean you can qualify him for the questions you are now asking. The objection is sustained.” App. 77-78.

       The defendants would, of course, have been entitled to a limiting instruction pursuant to Rule 105 had they requested it.

       Nor would a hearsay objection have been availing. Although the question called for Rainey to testify to an out-of-court statement, that statement was not offered “to prove the truth of the matter asserted.” Rule 801(c). Rather, it was offered simply to prove what Rainey had said about the accident six months after it happened, and to contribute to a fuller understanding of the material the defense had already placed in evidence.

       Rule 103(a) provides in relevant part:
      ' “Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
      “(2) In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.”

       See n. 16, supra.

       “I don’t recall going into anything except the matter about that right turn and so forth, and that’s all he went into.” App. 78.

       Even if, as the dissent contends, counsel’s “brief presentation” was “ambiguous at best,” it is incumbent upon a reviewing court to take into consideration the circumstances under which this “brief presentation” was made. Rainey’s counsel attempted twice to articulate the basis on which the proposed testimony should be admitted. After first being interrupted by an objection from opposing counsel and having obtained the court’s permission to make his argument, he was interrupted anew, this time by the court, which cut him off and ruled on the defense objection before he had been allowed to complete even a single sentence. See n. 16, supra. We have no quarrel with the proposition that counsel must articulate the grounds on which evidence should be admitted, and Rainey’s counsel had indeed begun to do so. Surely the degree of precision with which counsel is required to argue must be judged, among other things, in accordance with the leeway the court affords him in advancing his argument. None of the cases the dissent cites is to the contrary.
      We add that we find surprising the degree of certainty manifested by the dissent as to what the trial judge understood Rainey’s counsel to be arguing — so certain indeed that it would correct what he actually said. Compare n. 16, supra (“that doesn’t mean you can qualify him”), with post, at 176 (“that doesn’t mean you can[’t] qualify him”). The dissent has the trial judge suggest that counsel qualify Rainey as an expert, and implicitly faults counsel for not having proceeded to do so. Yet there is no basis whatever — other than the dissent’s apparent belief that it is what he should have said — for assuming that the trial judge meant to say “can’t” when he in fact said “can.”

      The entire colloquy relevant to the exclusion of Rainey’s testimony about the letter is set out ante, at 173, n. 16.

       According to 21 C. Wright & K. Graham, Federal Practice and Procedure § 5039, p. 199 (1977) one doctrine which allows even a valid and timely objection to be defeated is variously known as “waiver,” “estoppel,” “opening the door,” “fighting fire with fire,” and “curative admissibility.” The doctrine’s soundness depends on the specific situation in which it is used and calls for an exercise of judicial discretion.

       For the full text of the Rule, see ante, at 174, n. 19.

         Ante, at 174.


source: Caselaw Access Project

author: Justice Stevens Justice White,

license: Public Domain

text:
    NATIONAL COLLEGIATE ATHLETIC ASSOCIATION v. TARKANIAN
    No. 87-1061.
    Argued October 5, 1988
    Decided December 12, 1988

      Rex E. Lee argued the cause for petitioner. With him on the briefs were George H. Gangwere, James H. McLarney, and Daniel L. .Sailler.

      Samuel S. Lionel argued the cause for respondent. With him on the brief were David N. Frederick and Mark A. Solomon.

   Justice Stevens

delivered the opinion of the Court.

When he became head basketball coach at the University of Nevada, Las Vegas (UNLV), in 1973, Jerry Tarkanian inherited a team with a mediocre 14-14 record. App. 188, 205. Four years later the team won 29 out of 32 games and placed third in the championship tournament sponsored by the National Collegiate Athletic Association (NCAA), to which UNLV belongs. Id., at 188.

Yet in September 1977 UNLV informed Tarkanian that it was going to suspend him. No dissatisfaction with Tarkanian, once described as “the ‘winningest’ active basketball soach,” id., at 19, motivated his suspension. Rather, the impetus was a report by the NCAA detailing 38 violations of NCAA rules by UNLV personnel, including 10 involving Tarkanian. The NCAA had placed the university’s basketball team on probation for two years and ordered UNLV to show cause why the NCAA should not impose further penalties unless UNLV severed all ties during the probation between its intercollegiate athletic program and Tarkanian.

Facing demotion and a drastic cut in pay, Tarkanian brought suit in Nevada state court, alleging that he had been deprived of his Fourteenth Amendment due process rights in violation of 42 U. S. C. § 1983. Ultimately Tarkanian obtained injunctive relief and an award of attorney’s fees against both UNLV and the NCAA. 103 Nev. 331, 741 P. 2d 1345 (1987) (per curiam). NCAA’s liability may be upheld only if its participation in the events that led to Tarkanian’s suspension constituted “state action” prohibited by the Fourteenth Amendment and was performed “under color of” state law within the meaning of § 1983. We granted certiorari to review the Nevada Supreme Court’s holding that the NCAA engaged in state action when it conducted its investigation and recommended that Tarkanian be disciplined. 484 U. S. 1058 (1988). We now reverse.

I

In order to understand the four separate proceedings that gave rise to the question we must decide, it is useful to begin with a description of the relationship among the three parties — Tarkanian, UNLV, and the NCAA.

Tarkanian initially was employed on a year-to-year basis but became a tenured professor in 1977. He receives an annual salary with valuable fringe benefits, and his status as a highly successful coach enables him to earn substantial additional income from sports-related activities such as broadcasting and the sponsorship of products.

UNLY is a branch of the University of Nevada, a state-funded institution. The university is organized and operated pursuant to provisions of Nevada’s State Constitution, statutes, and regulations. In performing their official functions, the executives of UNLV unquestionably act under color of state law.

The NCAA is an unincorporated association of approximately 960 members, including virtually all public and private universities and 4-year colleges conducting major athletic programs in the United States. Basic policies of the NCAA are determined by the members at annual conventions. Between conventions, the Association is governed by its Council, which appoints various committees to implement specific programs.

One of the NCAA’s fundamental policies “is to maintain intercollegiate athletics as an integral part of the educational program and the athlete as an integral part of the student body, and by so doing, retain a clear line of demarcation between college athletics and professional sports.” App. 80. It has therefore adopted rules, which it calls “legislation,” ibid., governing the conduct of the intercollegiate athletic programs of its members. This NCAA legislation applies to a variety of issues, such as academic standards for eligibility, admissions, financial aid, and the recruiting of student athletes. By joining the NCAA, each member agrees to abide by and to enforce such rules.

The NCAA’s bylaws provide that its enforcement program shall be administered by a Committee on Infractions. The Committee supervises an investigative staff, makes factual determinations concerning alleged rule violations, and is expressly authorized to “impose appropriate penalties on a member found to be in violation, or recommend to the Council suspension or termination of membership.” In particular, the Committee may order a member institution to show cause why that member should not suffer further penalties unless it imposes a prescribed discipline on an employee; it is not authorized, however, to sanction a member institution’s employees directly. The bylaws also provide that representatives of member institutions “are expected to cooperate fully” with the administration of the enforcement program. Id., at 97. The bylaws do not purport to confer any subpoena power on the Committee or its investigators. They state:

“The enforcement procedures are an essential part of the intercollegiate athletic program of each member institution and require full and complete disclosure by all institutional representatives of any relevant information requested by the NCAA investigative staff, Committee on Infractions or Council during the course of an inquiry.” Ibid.

During its investigation of UNLV, the Committee on Infractions included three law professors, a mathematics professor, and the dean of a graduate school. Four of them were on the faculties of state institutions; one represented a private university.

The NCAA Investigation of UNLV

On November 28, 1972, the Committee on Infractions notified UNLV’s president that it was initiating a preliminary inquiry into alleged violations of NCAA requirements by UNLV. As a result of that preliminary inquiry, some three years later the Committee decided that an “Official Inquiry” was warranted and so advised the UNLV president on February 25, 1976. That advice included a series of detailed allegations concerning the recruitment of student athletes during the period between 1971 and 1975. Many of the allegations implicated Tarkanian. It requested UNLV to investigate and provide detailed information concerning each alleged incident.

With the assistance of the Attorney General of Nevada and private counsel, UNLV conducted a thorough investigation of the charges. On October 27, 1976, it filed a comprehensive response containing voluminous exhibits and sworn affidavits. The response denied all of the allegations and specifically concluded that Tarkanian was completely innocent of wrongdoing. Thereafter, the Committee conducted four days of hearings at which counsel for UNLV and Tarkanian presented their views of the facts and challenged the credibility of the NCAA investigators and their informants. Ultimately the Committee decided that many of the charges could not be supported, but it did find 38 violations of NCAA rules, including 10 committed by Tarkanian. Most serious was the finding that Tarkanian had violated the University’s obligation to provide full cooperation with the NCAA investigation. The Committee’s findings and proposed discipline were summarized in great detail in its so-called “Confidential Report No. 123(47).” App. 122-204.

The Committee proposed a series of sanctions against UNLV, including a 2-year period of probation during which its basketball team could not participate in postseason games or appear on television. The Committee also requested UNLV to show cause why additional penalties should not be imposed against UNLV if it failed to discipline Tarkanian by removing him completely from the University’s intercollegiate athletic program during the probation period. UNLV appealed most of the Committee’s findings and proposed sanctions to the NCAA Council. After hearing arguments from attorneys representing UNLV and Tarkanian, the Council on August 25, 1977, unanimously approved the Committee’s investigation and hearing process and adopted all its recommendations.

UNLV’s Discipline of Tarkanian

Promptly after receiving the NCAA report, the president of UNLV directed the University’s vice president to schedule a hearing to determine whether the Committee’s recommended sanctions should be applied. Tarkanian and UNLV were represented at that hearing; the NCAA was not. Although the vice president expressed doubt concerning the sufficiency of the evidence supporting the Committee’s findings, he concluded that “given the terms of our adherence to the NCAA we cannot substitute — biased as we must be — our own judgment on the credibility of witnesses for that of the infractions committee and the Council.” Id., at 75. With respect to the proposed sanctions, he advised the president that he had three options:

“1. Reject the sanction requiring us to disassociate Coach Tarkanian from the athletic program and take the risk of still heavier sanctions, e. g., possible extra years of probation.
“2. Recognize the University’s delegation to the NCAA of the power to act as ultimate arbiter of these matters, thus reassigning Mr. Tarkanian from his present position — though tenured and without adequate notice— even while believing that the NCAA was wrong.
“3. Pull out of the NCAA completely on the grounds that you will not execute what you hold to be their unjust judgments.” Id., at 76.

Pursuant to the vice president’s recommendation, the president accepted the second option and notified Tarkanian that he was to “be completely severed of any and all relations, formal or informal, with the University’s Intercollegiate athletic program during the period of the University’s NCAA probation.” Id., at 70.

Tarkanian’s Lawsuit Against UNLV

The day before his suspension was to become effective, Tarkanian filed an action in Nevada state court for declaratory and injunctive relief against UNLV and a number of its officers. He alleged that these defendants had, in violation of 42 U. S. C. § 1983, deprived him of property and liberty without the due process of law guaranteed by the Fourteenth Amendment to the United States Constitution. Based on a stipulation of facts and the testimony offered by Tarkanian, the trial court enjoined UNLV from suspending Tarkanian on the ground that he had been denied procedural and substantive due process of law. UNLV appealed.

The NCAA, which had not been joined as a party, filed an amicus curiae brief arguing that there was no actual controversy between Tarkanian and UNLV; thus, the suit should be dismissed. Alternatively, the NCAA contended that the trial court had exceeded its jurisdiction by effectively invalidating the enforcement proceedings of the NCAA, even though the Association was not a party to the suit. Should a controversy exist, the NCAA argued, it was a necessary party to litigate the scope of any relief. Finally, it contested the trial court’s conclusion that Tarkanian had been denied due process. The Nevada Supreme Court concluded that there was an actual controversy but agreed that the NCAA was a necessary party and therefore reversed and remanded to permit joinder of the NCAA. University of Nevada v. Tarkanian, 95 Nev. 389, 594 P. 2d 1159 (1979).

The Lawsuit Against NCAA

Tarkanian consequently filed a second amended complaint adding the NCAA. The defendants promptly removed the suit to Federal District Court on the ground that joinder of the NCAA substantially had altered the nature of the litigation. The District Court held, however, that the original defendants had waived their right to remove the suit when it was first filed, and therefore granted Tarkanian’s motion to remand the case to the state court. After a 4-year delay, the trial judge conducted a 2-week bench trial and resolved the issues in Tarkanian’s favor. The court concluded that NCAA’s conduct constituted state action for jurisdictional and constitutional purposes, and that its decision was arbitrary and capricious. It reaffirmed its earlier injunction barring UNLV from disciplining Tarkanian or otherwise enforcing the Confidential Report. Additionally, it enjoined the NCAA from conducting “any further proceedings against the University,” from enforcing its show-cause order, and from taking any other action against the University that had been recommended in the Confidential Report. App. 34.

Two weeks after the trial court’s opinion was entered, Tarkanian filed a petition for attorney’s fees pursuant to 42 U. S. C. § 1988. Asserting that this was the first time Tarkanian had claimed relief under § 1988, the NCAA again sought removal to Federal District Court on the ground that the litigation had changed substantially. When the university defendants declined to join the removal petition, the NCAA contended that they should be realigned as plaintiffs because they actually wanted Tarkanian to prevail. The District Court, however, again ordered the litigation remanded, and the Ninth Circuit agreed. App. to Pet. for Cert. A120. Even before the Ninth Circuit ruled, the Nevada trial court had awarded Tarkanian attorney’s fees of almost $196,000, 90% of which was to be paid by the NCAA. App. 41-42. The NCAA appealed both the injunction and the fee order. Not surprisingly, UNLV, which had scored a total victory except for its obligation to pay a fraction of Tarkanian’s fees, did not appeal.

The Nevada Supreme Court agreed that Tarkanian had been deprived of both property and liberty protected by the Constitution and that he was not afforded due process before suspension. It thus affirmed the trial court’s injunction insofar as it pertained to Tarkanian, but narrowed its scope “only to prohibit enforcement of the penalties imposed upon Tarkanian in Confidential Report No. 123(47) and UNLV’s adoption of those penalties.” 103 Nev., at 343, 741 P. 2d, at 1353. The court also reduced the award of attorney’s fees.

As a predicate for its disposition, the State Supreme Cour held that the NCAA had engaged in state action. Severa strands of argument supported this holding. First, the cour assumed that it was reviewing “UNLV’s and the NCAA’s im position of penalties against Tarkanian,” id., at 335, 741 P 2d, at 1347, rather than the NCAA’s proposed sanction.1 against UNLV if it failed to discipline Tarkanian appropri ately. Second, it regarded the NCAA’s regulatory activities as state action because “many NCAA member institutions were either public or government supported.” Ibid. Third, it stated that the right to discipline a public employee “is traditionally the exclusive prerogative of the state” and that UNLV could not escape its responsibility for such disciplinary action by delegating that duty to a private entity. Id., at 336, 741 P. 2d, at 1348. The court next pointed to our opinion in Lugar v. Edmondson Oil Co., 457 U. S. 922, 937 (1982), in which we held that .the deprivation of a federal right may be attributed to the State if it resulted from a state-created rule and the party charged with the deprivation can fairly be said to a state actor. Summing up its holding that the NCAA’s activities constituted state action, the Nevada Supreme Court stated:

“The first prong [of Lugar] is met because no third party could impose disciplinary sanctions upon a state university employee unless the third party received the right or privilege from the university. Thus, the deprivation which Tarkanian alleges is caused by the exercise of a right or privilege created by the state. Also, in the instant case, both UNLV and the NCAA must be considered state actors. By delegating authority to the NCAA over athletic personnel decisions and by imposing the NCAA sanctions against Tarkanian, UNLV acted jointly with the NCAA.” 103 Nev., at 337, 741 P. 2d, at 1349.

II

Embedded in our Fourteenth Amendment jurisprudence is a dichotomy between state action, which is subject to scrutiny under the Amendment’s Due Process Clause, and private conduct, against which the Amendment affords no shield, no matter how unfair that conduct may be. Shelley v. Kraemer, 334 U. S. 1, 13 (1948); see Jackson v. Metropolitan Edison Co., 419 U. S. 345, 349 (1974). As a general matter the protections of the Fourteenth Amendment do not extend to “private conduct abridging individual rights.” Burton v. Wilmington Parking Authority, 365 U. S. 715, 722 (1961).

“Careful adherence to the ‘state action’ requirement preserves an area of individual freedom by limiting the reach of federal law” and avoids the imposition of responsibility on a State for conduct it could not control. Lugar, 457 U. S., at 936-937. When Congress enacted §1983 as the statutory remedy for violations of the Constitution, it specified that the conduct at issue must have occurred “under color of” state law; thus, liability attaches only to those wrongdoers “who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it.” Monroe v. Pape, 365 U. S. 167, 172 (1961). As we stated in United States v. Classic, 313 U. S. 299, 326 (1941):

“Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken ‘under color of’ state law.”

In this case Tarkanian argues that the NCAA was a state actor because it misused power that it possessed by virtue of state law. He claims specifically that UNLV delegated its own functions to the NCAA, clothing the Association with authority both to adopt rules governing UNLV’s athletic programs and to enforce those rules on behalf of UNLV. Similarly, the Nevada Supreme Court held that UNLV had delegated its authority over personnel decisions to the NCAA. Therefore, the court reasoned, the two entities acted jointly to deprive Tarkanian of liberty and property interests, making the NCAA as well as UNLV a state actor.

These contentions fundamentally misconstrue the facts of this case. In the typical case raising a state-action issue, a private party has taken the decisive step that caused the harm to the plaintiff, and the question is whether the State was sufficiently involved to treat that decisive conduct as state action. This may occur if the State creates the legal framework governing the conduct, e. g., North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U. S. 601 (1975); if it delegates its authority to the private actor, e. g., West v. Atkins, 487 U. S. 42 (1988); or sometimes if it knowingly accepts the benefits derived from unconstitutional behavior, e. g., Burton v. Wilmington Parking Authority, supra. Thus, in the usual case we ask whether the State provided a mantle of authority that enhanced the power of the harm-causing individual actor.

This case uniquely mirrors the traditional state-action case. Here the final act challenged by Tarkanian — his suspension — was committed by UNLV. A state university without question is a state actor. When it decides to impose a serious disciplinary sanction upon one of its tenured employees, it must comply with the terms of the Due Process Clause of the Fourteenth Amendment to the Federal Constitution. Accord, Cleveland Board of Education v. Louder- mill, 470 U. S. 532 (1985); Board of Regents of State Colleges v. Roth, 408 U. S. 564 (1972). Thus when UNLV notified Tarkanian that he was being separated from all relations with the university’s basketball program, it acted under color of state law within the meaning of 42 U. S. C. § 1983.

The mirror image presented in this case requires us to step through an analytical looking glass to resolve the case. Clearly UNLV’s conduct was influenced by the rules and recommendations of the NCAA, the private party. But it was UNLV, the state entity, that actually suspended Tarkanian. Thus the question is not whether UNLV participated to a critical extent in the NCAA’s activities, but whether UNLV’s actions in compliance with the NCAA rules and recommendations turned the NCAA’s conduct into state action.

We examine first the relationship between UNLV and the NCAA regarding the NCAA’s rulemaking. UNLV is among the NCAA’s members and participated in promulgating the Association’s rules; it must be assumed, therefore, that Nevada had some impact on the NCAA’s policy determinations. Yet the NCAA’s several hundred other public and private member institutions each similarly affected those policies. Those institutions, the vast majority of which were located in States other than Nevada, did not act under color of Nevada law. It necessarily follows that the source of the legislation adopted by the NCAA is not Nevada but the collective membership, speaking through an organization that is independent of any particular State. Cf. Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U. S. 492, 501 (1988) (“Whatever de facto authority the [private standard-setting] Association enjoys, no official authority has been conferred on it by any government...”).

State action nonetheless might lie if UNLV, by embracing the NCAA’s rules, transformed them into state rules and the NCAA into a state actor. See Lugar, 457 U. S., at 937. UNLV engaged in state action when it adopted the NCAA’s rules to govern its own behavior, but that would be true even if UNLV had taken no part in the promulgation of those rules. In Bates v. State Bar of Arizona, 433 U. S. 350 (1977), we established that the State Supreme Court’s enforcement of disciplinary rules transgressed by members of its own bar was state action. Those rules had been adopted in toto from the American Bar Association Code of Professional Responsibility. Id., at 360,, n. 12. It does not follow, however, that the ABA’s formulation of those disciplinary rules was state action. The State Supreme Court retained plenary power to reexamine those standards and, if necessary, to reject them and promulgate its own. See id., at 362. So here, UNLV retained the authority to withdraw from the NCAA and establish its own standards. The university alternatively could have stayed in the Association and worked through the Association’s legislative process to amend rules or standards it deemed harsh, unfair, or unwieldy. Neither UNLV’s decision to adopt the NCAA’s standards nor its minor role in their formulation is a sufficient reason for concluding that the NCAA was acting under color of Nevada law when it promulgated standards governing athlete recruitment, eligibility, and academic performance.

Tarkanian further asserts that the NCAA’s investigation, enforcement proceedings, and consequent recommendations constituted state action because they resulted from a delegation of power by UNLV. UNLV, as an NCAA member, subscribed to the statement in the Association’s bylaws that NCAA “enforcement procedures are an essential part of the intercollegiate athletic program of each member institution.” App. 97. It is, of course, true that a State may delegate authority to a private party and thereby make that party a state actor. Thus, we recently held that a private physician who had contracted with a state prison to attend to the inmates’ medical needs was a state actor. West v. Atkins, 487 U. S. 42 (1988). But UNLV delegated no power to the NCAA to take specific action against any university employee. The commitment by UNLV to adhere to NCAA enforcement procedures was enforceable only by sanctions that the NCAA might impose on UNLV itself.

Indeed, the notion that UNLV’s promise to cooperate in the NCAA enforcement proceedings was tantamount to a partnership agreement or the transfer of certain university powers to the NCAA is belied by the history of this case. It is quite obvious that UNLV used its best efforts to retain its winning coach — a goal diametrically opposed to the NCAA’s interest in ascertaining the truth of its investigators’ reports. During the several years that the NCAA investigated the alleged violations, the NCAA and UNLV acted much more like adversaries than like partners engaged in a dispassionate search for the truth. The NCAA cannot be regarded as an agent of UNLV for purposes of that proceeding. It is more correctly characterized as an agent of its remaining members which, as competitors of UNLV, had an interest in the effective and evenhanded enforcement of the NCAA’s recruitment standards. Just as a state-compensated public defender acts in a private capacity when he or she represents a private client in a conflict against the State, Polk County v. Dodson, 454 U. S. 312, 320 (1981), the NCAA is properly viewed as a private actor at odds with the State when it represents the interests of its entire membership in an investigation of one public university.

The NCAA enjoyed no governmental powers to facilitate its investigation. It had no power to subpoena witnesses, to impose contempt sanctions, or to assert sovereign authority over any individual. Its greatest authority was to threaten sanctions against UNLV, with the ultimate sanction being expulsion of the university from membership. Contrary to the premise of the Nevada Supreme Court’s opinion, the NCAA did not — indeed, could not — directly discipline Tarkanian or any other state university employee. The express terms of the Confidential Report did not demand the suspension unconditionally; rather, it requested “the University ... to show cause” why the NCAA should not impose additional penalties if UNLV declines to suspend Tarkanian. App. 180. Even the university’s vice president acknowledged that the Report gave the university options other than suspension: UNLV could have retained Tarkanian and risked additional sanctions, perhaps even expulsion from the NCAA, or it could have withdrawn voluntarily from the Association.

Finally, Tarkanian argues that the power of the NCAA is so great that the UNLV had no practical alternative to compliance with its demands. We are not at all sure this is true, but even if we assume, that a private monopolist can impose its will on a state agency by a threatened refusal to deal with it, it does not follow that such a private party is therefore acting under color of state law. Cf. Jackson, 419 U. S., at 351-352 (State’s conferral of monopoly status does not convert private party into state actor).

In final analysis the question is whether “the conduct allegedly causing the deprivation of a federal right [can] be fairly attributable to the State.” Lugar, 457 U. S., at 937. It would be ironic indeed to conclude that the NCAA’s imposition of sanctions against UNLV — sanctions that UNLV and its counsel, including the Attorney General of Nevada, steadfastly opposed during protracted adversary proceedings — is fairly attributable to the State of Nevada. It would be more appropriate to conclude that UNLV has conducted its athletic program under color of the policies adopted by the NCAA, rather than that those policies were developed and enforced under color of Nevada law.

The judgment of the Nevada Supreme Court is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice White,

with whom

Justice Brennan, Justice Marshall, and Justice O’Connor join, dissenting.

All agree that UNLV, a public university, is a state actor, and that the suspension of Jerry Tarkanian, a public employee, was state action. The question here is whether the NCAA acted jointly with UNLV in suspending Tarkanian and thereby also became a state actor. I would hold that it did.

I agree with the majority that this case is different on its facts from many of our prior state-action cases. As the majority notes, in our “typical case raising a state-action issue, a private party has taken the decisive step that caused the harm to the plaintiff.” Ante, at 192. In this case, however, which in the majority’s view “uniquely mirrors the traditional state-action case,” ibid., the final act that caused the harm to Tárkanian was committed, not by a private party, but by a party conceded to be a state actor. Because of this difference, the majority finds it necessary to “step through an analytical looking glass” to evaluate whether the NCAA was a state actor. Ante, at 193.

But the situation presented by this case is not unknown to us and certainly is not unique. In both Adickes v. S. H. Kress & Co., 398 U. S. 144 (1970), and Dennis v. Sparks, 449 U. S. 24 (1980), we faced the question whether private parties could be held to be state actors in cases in which the final or decisive act was carried out by a state official. In both cases we held that the private parties could be found to be state actors, if they were “jointly engaged with state officials in the challenged action.” Id., at 27-28.

The facts of Dennis are illustrative. In Dennis, a state trial judge enjoined the production of minerals from oil leases owned by the plaintiff. The injunction was later dissolved on appeal as having been issued illegally. The plaintiff then filed suit under 42 U. S. C. § 1983, alleging that the judge had conspired with the party seeking the original injunction — a private corporation — the sole owner of the corporation, and the two sureties on the injunction bond to deprive the plaintiff of due process by corruptly issuing the injunction. We held unanimously that under the facts as alleged the private parties were state actors because they were “willful participants] in joint action with the State or its agents.” 449 U. S., at 27. See also Adickes, supra, at 152 (plaintiff entitled to relief under § 1983 against private party if she can prove that private party and police officer “reached an understanding” to cause her arrest on impermissible grounds).

On the facts of the present case, the NCAA acted jointly with UNLV in suspending Tarkanian. First, Tarkanian was suspended for violations of NCAA rules, which UNLV embraced in its agreement with the NCAA. As the Nevada Supreme Court found in its first opinion in this case, University of Nevada v. Tarkanian, 95 Nev. 389, 391, 594 P. 2d 1159, 1160 (1979), “[a]s a member of the NCAA, UNLV contractually agrees to administer its athletic program in accordance with NCAA legislation.” Indeed, NCAA rules provide that NCAA “enforcement procedures are an essential part of the intercollegiate athletic program of each member institution.” App. 97.

Second, the NCAA and UNLV also agreed that the NCAA would conduct the hearings concerning violations of its rules. Although UNLV conducted its own investigation into the recruiting violations alleged by the NCAA, the NCAA procedures provide that it is the NCAA Committee on Infractions that “determine^] facts related to alleged violations,” subject to an appeal to the NCAA Council. Id., at 98, 101. As a result of this agreement, the NCAA conducted the very hearings the Nevada Supreme Court held to have violated Tarkanian’s right to procedural due process.

Third, the NCAA and UNLV agreed that the findings of fact made by the NCAA at the hearings it conducted would be binding on UNLV. By becoming a member of the NCAA, UNLV did more than merely “promise to cooperate in the NCAA enforcement proceedings.” Ante, at 196. It agreed, as the university hearing officer appointed to rule on Tarkanian’s suspension expressly found, to accept the NCAA’s “findings of fact as in some way superior to [its] own.” App. 74. By the terms of UNLV’s membership in the NCAA, the NCAA’s findings were final and not subject to further review by any other body, id., at 101, and it was for that reason that UNLV suspended Tarkanian, despite concluding that many of those findings were wrong, id., at 76.

In short, it was the NCAA’s findings that Tarkanian had violated NCAA rules, made at NCAA-conducted hearings, all of .which were agreed to by UNLV in its membership agreement with the NCAA, that resulted in Tarkanian’s suspension by UNLV. On these facts, the NCAA was “jointly engaged with [UNLV] officials in the challenged action,” and therefore was a state actor. See Dennis, supra, at 27-28.

The majority’s objections to finding state action in this case were implicitly rejected by our decision in Dennis. Initially, the majority relies on the fact that the NCAA did not have any power to take action directly against Tarkanian as indicating that the NCAA was not a state actor. Ante, at 195-196. But the same was true in Dennis: the private parties did not have any power to issue an injunction against the plaintiff. Only the trial judge, using his authority granted under state law, could impose the injunction.

Next, the majority points out that UNLV was free to withdraw from the NCAA at any time. Ante, at 194-195. Indeed, it is true that when considering UNLV’s options, the university hearing officer noted that one of those options was to “[p]ull out of the NCAA completely.” App. 76. But of course the trial judge in Dennis could have withdrawn from his agreement at any time as well. That he had that option is simply irrelevant to finding that he had entered into an agreement. What mattered was not that he could have withdrawn, but rather that he did not do so.

Finally, the majority relies extensively on the fact that the NCAA and UNLV were adversaries throughout the proceedings before the NCAA. Ante, at 196. The majority provides a detailed description of UNLV’s attempts to avoid the imposition of sanctions by the NCAA. But this opportunity for opposition, provided for by the terms of the membership agreement between UNLV and the NCAA, does not undercut the agreement itself. Surely our decision in Dennis would not have been different had the private parties permitted the trial judge to seek to persuade them that he should not grant the injunction before finally holding the judge to his agreement with them to do so. The key there, as with any conspiracy, is that ultimately the parties agreed to take the action.

The majority states in conclusion that “[i]t would be ironic indeed to conclude that the NCAA’s imposition of sanctions against UNLV — sanctions that UNLV and its counsel, including the Attorney General of Nevada, steadfastly opposed during protracted adversary proceedings — is fairly attributable to the State of Nevada.” Ante, at 199. I agree. Had UNLV refused to suspend Tarkanian, and the NCAA responded by imposing sanctions against UNLV, it would be hard indeed to find any state action that harmed Tarkanian. But that is not this case. Here, UNLV did suspend Tarkanian, and it did so because it embraced the NCAA rules governing conduct of its athletic program and adopted the results of the hearings conducted by the NCAA concerning Tarkanian, as it had agreed that it would. Under these facts, I would find that the NCAA acted jointly with UNLV and therefore is a state actor.

I respectfully dissent.

       The trial court found that Tarkanian, as head basketball coach,
      “is annually paid (in lieu of his salary as a professor) $125,000, plus 10% of the net proceeds received by UNLV for participation in NCAA-authorized championship games, plus fees from basketball camps and clinics, product endorsements, and income realized from writing a newspaper column, speaking on a radio program entitled ‘THE JERRY TARKANIAN SHOW,’ and appearing on a television program bearing the same name.” App. 18.
      That compensation was “entirely contingent on [Tarkanian’s] continued status as the Head Basketball Coach at UNLV.” As a tenured professor alone, he would have earned about $53,000 a year, the court found. Ibid.

         That section provides, in part:
      “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

      The fees were awarded pursuant to 42 U. S. C. § 1988, which authorizes a court in its discretion to award the prevailing party in an action brought under § 1983 a reasonable attorney’s fee as a part of the costs.

         In this case the under-color-of-law requirement of 42 U. S. C. § 1983 and the state-action requirement of the Fourteenth Amendment are equivalent. See Rendell-Baker v. Kohn, 457 U. S. 830, 838 (1982); see also Lugar v. Edmondson Oil Co., 457 U. S. 922, 928-935 (1982).

       Although the NCAA’s status as a state or private actor is a novel issue in this Court, lower federal courts have entertained the question for a number of years. Initially, Federal Courts of Appeals held that the NCAA was a state actor for §1983 purposes. E. g., Regents of University of Minnesota v. NCAA, 560 F. 2d 352 (CA8), cert. dism’d, 434 U. S. 978 (1977); Howard University v. NCAA, 166 U. S. App. D. C. 260, 510 F. 2d 213 (1975); Parish v. NCAA, 506 F. 2d 1028 (CA5 1975); Associated Students, Inc. v. NCAA, 493 F. 2d 1251 (CA9 1974) (per curiam). Since our decisions in Lugar v. Edmondson Oil Co., supra, Rendell-Baker v. Kohn, supra, and Blum v. Yaretsky, 457 U. S. 991 (1982), all issued on the same day, lower courts have held to the contrary. E. g., McCormack v. NCAA, 845 F. 2d 1338 (CA5 1988); Karmanos v. Baker, 816 F. 2d 258 (CA6 1987); Graham v. NCAA, 804 F. 2d 953 (CA6 1986); Arlosoroff v. NCAA, 746 F. 2d 1019 (CA4 1984). See Spath v. NCAA, 728 F. 2d 25, 28 (CA1 1984) (dictum).

       App. 98. Among the sanctions that the Committee may impose “against an institution” are;
      “(1) Reprimand and censure;

        “(2) Probation for one year;
      “(3) Probation for more than one year;
      “(4) Ineligibility for one or more National Collegiate Championship events;
      “(5) Ineligibility for invitational and postseason meets and tournaments;
      “(6) Ineligibility for any television programs subject to the Association’s control or administration;
      “(7) Ineligibility of the member to vote or its personnel to serve on committees of the Association, or both;
      “(8) Prohibition against an intercollegiate sports team or teams participating against outside competition for a specified period;
      “(9) Prohibition against the recruitment of prospective student-athletes for a sport or sports for a specified period . . . .” Id,., at 103-104.

       Upon finding that misconduct by an employee of a member institution caused NCAA rules to be violated, the Committee may require the member to “show cause why:
      “(i) a penalty or an additional penalty should not be imposed if, in the opinion of the Committee (or Council), it does not take appropriate disciplinary or corrective action against athletic department personnel involved in the infractions case, any other institutional employee if the circumstances warrant, or representatives of the institution’s athletic interests; or
      “(ii) a recommendation should not be made to the membership that the institution’s membership in the Association be suspended or terminated if, in the opinion of the Committee (or Council), it does not take appropriate disciplinary or corrective action against the head coach of the sport involved, any other institutional employee if the circumstances warrant, or representatives of the institution’s athletic interests.” Id., at 104.

      See id., at 141-150, 190, 196.

       “Most serious is the charge that Coach Tarkanian attempted to frustrate the NCAA’s application of the rules by getting people to ‘change their story’ or to fabricate bodies of countervailing evidence. I am not convinced that the NCAA investigation adequately supports this charge and yet we must remember that the NCAA infractions committee and the NCAA Council, both composed of distinguished scholars, administrators, and lawyers, believed otherwise.” Id., at 72.

      The court held the NCAA was not liable for fees Tarkanian incurred during the first trial and first appeal to the State Supreme Court. Not only,did those events occur before the NCAA was a party to the litigation, the court explained, but since the trial court’s judgment was reversed, Tarkanian had not prevailed, and thus was not eligible for fees pursuant to § 1988. In a later opinion, the Supreme Court ordered that Tarkanian be allowed additional fees for services performed on his second appeal before that court.

       “No State shall . . . deprive any person of life, liberty, or property, without due process of law . . . .” U. S. Const., Amdt. 14. § 1.

        E. g., Jackson v. Metropolitan Edison Co., 419 U. S. 345, 351 (1974) (“[T]he inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may fairly be treated as that of the State itself”).

       The situation would, of course, be different if the membership consisted entirely of institutions located within the same State, many of them public institutions created by the same sovereign. See Clark v. Arizona Interscholastic Association, 695 F. 2d 1126 (CA9 1982), cert. denied, 464 U. S. 818 (1983); Louisiana High School Athletic Association v. St. Augustine High School, 396 F. 2d 224 (CA5 1968). The dissent apparently agrees that the NCAA was not acting under color of state law in its relationships with private universities, which constitute the bulk of its membership. See post, at 202, n. 2.

      Petitioners in Bates, contended that enforcement of disciplinary rules circumscribing attorney advertising violated §§ 1 and 2 of the Sherman Act, 15 U. S. C. §§ 1 and 2, and the First Amendment, made applicable to the States by the Fourteenth Amendment. 433 U. S., at 353. The Court unanimously concluded that state action existed in deciding that by the doctrine enunciated in Parker v. Brown, 317 U. S. 341 (1943), respondent was immune from Sherman Act liability. The Court reached the merits of petitioners’ First and Fourteenth Amendment claims without discussing whether state action existed for Fourteenth Amendment purposes. 433 U. S., at 363-384.
      Although by no means identical, analysis of the existence of state action justifying immunity from antitrust liability is somewhat similar to the state-action inquiry conducted pursuant to § 1983 and the Fourteenth Amendment. In both contexts, for example, courts examine whether the rule in question is a rule of the State. Compare Hoover v. Ronwin, 466 U. S. 558, 569 (1984) (“[T]he Court has required a showing that the conduct is pursuant to a ‘clearly articulated and affirmatively expressed state policy’ to replace competition with regulation”) (citation omitted), with Lugar,
        457 U. S., at 937 (“[T]he deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible”). The degree to which the activities of the state entity and the arguably private entity are intertwined also is pertinent. Compare Hoover, 466 U. S., at 569-570, with Burton v. Wilmington Parking Authority, 365 U. S. 715, 721-726 (1961).

       Furthermore, the NCAA’s bylaws permit review of penalties, even after they are imposed, “upon a showing of newly discovered evidence which is- directly related to the findings in the case, or that there was a prejudicial error in the procedure which was followed in the processing of the case by the Committee.” App. 107. UNLV could have sought such a review, perhaps on the theory that the NCAA’s investigator was biased against Tarkanian, as the Nevada trial court found in 1984. Id., at 20. The NCAA Committee on Infractions was authorized to “reduce or eliminate any penalty” if the university had prevailed. Id., at 108.

      Tarkanian argues that UNLV and the NCAA were “joint participants” in state action. Brief for Respondent 42. He would draw support from Burton v. Wilmington Parking Authority, 365 U. S. 715 (1961), in which a lease relationship between a private restaurant and a publicly owned parking structure entailed “an incidental variety of mutual benefits,” id., at 724: tax exemptions for the restaurant, rent payments for the parking authority, and increased business for both. Because of this interdependence, we held, the restaurant and parking authority jointly violated the Fourteenth Amendment when the restaurant discriminated on account of race. Id., at 725. In the case before us the state and private parties’ relevant interests do not coincide, as they did in Burton; rather, they have clashed throughout the investigation, the attempt to discipline Tarkanian, and this litigation. UNLV and the NCAA were antagonists, not joint participants, and the NCAA may not be deemed a state actor on this ground.

       In Dennis v. Sparks, 449 U. S. 24 (1980), on which the dissent relies, the parties had entered into a corrupt agreement to perform a judicial act. As we explained:
      “[Hjere the allegations were that an official act of the defendant judge was the product of a corrupt conspiracy involving bribery of the judge. Under these allegations, the private parties conspiring with the judge were acting under color of state law; and it is of no consequence in this respect that the judge himself is immune from damages liability. Immunity does not change the character of the judge’s action or that of his co-conspirators. Indeed, his immunity is dependent on the challenged conduct being an official judicial act within his statutory jurisdiction, broadly construed. Private parties who corruptly conspire with a judge in connection with such conduct are thus acting under color of law . . . .” Id., at 28-29 (footnote and citations omitted).
      In this case there is no suggestion of any impropriety respecting the agreement between the NCAA and UNLV. Indeed the dissent seems to assume that the NCAA’s liability as a state actor depended not on its initial agreement with UNLV, but on whether UNLV ultimately accepted the NCAA’s recommended discipline of Tarkanian. See post, at 203. In contrast, the conspirators in Dennis became state actors when they formed the corrupt bargain with the judge, and remained so through completion of the conspiracy’s objectives. Cf. Adickes v. S. H. Kress & Co., 398 U. S. 144, 149-150, and n. 5 (1970) (private restaurant that denied plaintiff service in violation of federal law would be liable as state actor upon proof that it conspired with police officer to deprive plaintiff of her constitutional rights).

      Tarkanian urges us to hold, as did the Nevada Supreme Court, that the NCAA by its rules and enforcement procedures has usurped a traditional, essential state function. Quite properly, he does not point to the NCAA’s overriding function of fostering amateur athletics at the college level. For while we have described that function as “critical,” NCAA v. Board of Regents of Univ. of Okla., 468 U. S. 85, 120 (1984), by no means is it a traditional, let alone an exclusive, state function. Cf. San Francisco Arts & Athletics, Inc. v. United States Olympic Committee, 483 U. S. 522, 545 (1987) (“Neither the conduct nor the coordination of amateur sports has been a traditional government function”). Tarkanian argues instead that the NCAA has assumed the State’s traditional and exclusive power to discipline its employees. “[A]s to state employees connected with intercollegiate athletics, the NCAA requires that its standards, procedures and determinations become the State’s standards, procedures and determinations for disciplining state employees,” he contends. “The State is obligated to impose NCAA standards, procedures and determinations making the NCAA a joint participant in the State’s suspension of Tarkanian.” Brief for Respondent 34-35 (emphases in original).
      This argument overlooks the fact that the NCAA’s own legislation prohibits it from taking any direct action against Tarkanian. Moreover, suspension of Tarkanian is one of many recommendations in the Confidential Report. Those recommendations as a whole were intended to bring UNLV’s basketball program into compliance with NCAA rules. Suspension of Tarkanian was but one means toward achieving that goal.

       The university’s desire to remain a powerhouse among the Nation’s college basketball teams is understandable, and nonmembership in the NCAA obviously would thwart that goal. But that UNLV’s options were unpalatable does not mean that they were nonexistent.

      The NCAA’s petition for certiorari challenged the Nevada Supreme Court’s holding that the procedures here violated procedural due process. Our grant of the petition, however, was limited solely to the state-action question. I therefore take as a given, although I do not decide, that the hearings provided to Tarkanian were constitutionally inadequate.

       The Court notes that the United States Courts of Appeals have, since our decisions in Rendell-Baker v. Kohn, 457 U. S. 830 (1982), Lugar v. Edmondson Oil Co., 457 U. S. 922 (1982), and Blum v. Yaretsky, 457 U. S. 991 (1982), held unanimously that the NCAA is not a state actor. Ante, at 182, n. 5. See McCormack v. NCAA, 845 F. 2d 1338, 1346 (CA5 1988); Karmanos v. Baker, 816 F. 2d 258, 261 (CA6 1987); Graham v. NCAA, 804 F. 2d 953, 958 (CA6 1986); Arlosoroff v. NCAA, 746 F. 2d 1019, 1021-1022 (CA4 1984). In none of those cases, however, did the courts address the theory before us here. E. g., McCormack, supra, at 1346. Indeed, in Arlosoroff, on which the subsequent decisions principally rely, the plaintiff was challenging the actions of Duke, a private university. The issue of joint action between the NCAA and a public university would never have arisen in that case.

       The NCAA does not argue that, if it is found to be a state actor, the injunction entered against it by the trial court is invalid. Tr. of Oral Arg. 49. I therefore express no opinion on that question.