Petition — Rendell-Baker v. Kohn
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Office Supreme Court, U.S.
80-21 02 FILED
No. JUN 1 2 1981
In the ar ah
Suprene Court of the United States
Qcroser Term, 1980
SHEILA RENDELL- BAKER,
PETITIONER,
v
SANDRA KOHN, ET AL.,
RESPONDENTS,
WAYNE KLUG, ET AL.,
PETITIONERS,
ov
NEW PERSPECTIVES SCHOOL, INC., ET AL.,
RESPONDENTS.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
ZacHaRrY R. Karo *
BincHaM, Dana & GouLp
100 Federal Street
Boston, Massachusetts 02110
(617) 357-9300
ALAN Jay Rom
Lawyers’ Committee for Civil
ights— Under Law of the
Boston Bar Association
294 Washington Street
Suite 4506
Boston, Massachusetts 02108
JouN REINSTEIN
Civil Liberties Union of
Massachusetts Foundation, Inc.
47 Winter Street, 6th Floor
ae Boston, Massachusetts 02108
* Counsel of Record Counsel for Petitioners
Blanchard Press. Inc., Boston, Mass.— Law Printers
QUESTION PRESENTED
Is an ostensibly private school, to
which local governments have delegated
their statutory obligation to provide
public education to special needs children
at public expense and which is subject to
extensive state regulation, subject to any
constitutional constraints in connection
with the provision of such education?
di
PARTIES BELOW
The Court of Appeals for the First
Circuit consolidated these two appeals
from the District Court for the District
of Massachusetts. In No. 80-1328 below,
the plaintiff-appellant was Sheila
Rendell-Baker; the defendants-appellees
were New Perspectives School, Inc., Sandra
Kohn (individually and as director of
the school), the members of the Board of
Directors of the school (individually and
in their official capacities) ,? Francis
X. Bellotti (as Chairman of the Massachu-
setts Committee on Criminal Justice), and
Ithe individ)al members of the school's Board
of Directors named in the Rendell-Baker Complaint
were Susan .iford, John Businger, Jackie W.
Cooper, Stephen B. Goldenberg, Rodney Jackson,
Joanne Neiman, James W. Schlesinger, Rina Wald
Spence, Tonia Yee, and Edward Zarsky.
iii
William Highgas” (as Executive Director of
the Massachusetts Committee on Criminal
Justice). In No. 80-1451 below, the
plaintiffs-appellees were Wayne Klug,
Carolyn Anderson, Paul Stein, William
Tilden, and Dawn Fonseca; the defendants-
appellants were New Perspectives School,
Inc., Sandra Kohn (individually and as
director of the school), and the members
of the Board of Directors of the school
(individually and in their official
capacities) .?
William Highgas was substituted as a named
party after he succeeded Robert J. Kane, who was
originally named in the Complaint, as Executive
Director of the Commonwealth of Massachusetts Com-
mittee on Criminal Justice.
3the individual members of the School's Board
of Directors named in the Klug complaint were
James W. Schlesinger, Stephen B. Goldenberg,
Joseph Gartner, Joanne Neiman, David Bachrach,
Rodney Jackson, Rita Wald Spence, Susan Alford,
Rhoda Goodwin, Rita Hamberg, Tonia Yee, and Edward
Zarsky.
iv
TABLE OF CONTENTS
Question Presented ........
Parties Below. . 3 «+ + «+ «eves
Table of Contents. ......
Table of Authorities .......
Se ee ce ee ee ee
Constitutional and
Statutory Provisions .
Publications. ..
Gpamseme BELOW . . sie ew ew He
Jurisdiction .
Constitutional and Statutory
Provisions Involved .......
Petition for a Writ of
CORpee as 0.60 eee 6
Statement of the Case.
Reasons for Granting the Writ. ..
le This Case Presents an
Important, Unsettled
Question of Federal
Law . . * * . . * . *
17
17
A. The Question
Presented is
Unsettled. .... 19
B. The Question
Presented is
Important. .... 35
23 To the Extent This
Conclusion .
Appendix
Court and Other
Federal Courts Have
Addressed Related
Questions, the De-
cisions Have Con-
flicted, In Prin-
ciple, With the
Decision of the
Court of Appeals in
This Case .... - - 41
ce ee oe ew ew ew ew ew) = CSD
1. Opinion Below of the
Court of Appeals for
the First Circuit... 1
2. Opinion and Memoran-
dum of the District
Court for the Dis-
trict of Massachu-
setts (Rendell-
De) ee. ee «6 3” BFP
3. Opinion and Memoran-
dum of the District
Court for the Dis-
trict of Massachu-
setts (Klug) ..... 40
vi
Judgment to be
Reviewed (Rendell-
Baker) .. diy a
Judgment to Be Re-
viewed (Klug)...
Ross v. Allen, No. 80
Civ. 3422 (Rws)
(S.D.N.Y., filed me
6, 1981)...
Compendium of State
Special Education
Statutes. ....
Compendium of Private
School Provisions in
State Special Educa-
tion Statutes...
Page
60
62
85
89
vii
TABLE OF AUTHORITIES
CASES
Berrios v. Inter American Univer-
sity, 535 F.2d 1330 (lst —
1976) . . . . . . . . 7 .
Board of Education v. Assessor of
Worcester, 368 Mass. 5l1l, 333
N.E.2d 450 (1975) . “ear
Braden v. University of Pitts-
burgh, 552 F.2d 948 (3d Cir.
1977) ° . . . * . . . . . .
Brown v. Board of Education,
347 U.S. 483 (1954)
Burton v. Wilmington Parking
Authority, 365 U.S. 715
(1961). . . . . . . . . . .
Cohen v. Illinois Institute of
Technology, 524 F.2d 818
(7th Cir. 1975), cert.
denied, 425 U.S. 943 (1976) .
Commonwealth v. School Committee
of Springfield, Mass. Adv.
Sh. [1981] 502, 417 N.E.2d
408 . . . . . . . . . . . .
Downs v. Sawtelle, 574 F.2d 1
(let Cir.), cert. denied,
439 U.S. 910 (1978) ....
24
24
38
17,22,
23,30
24
7,9,20,30,
32,36,40
24
viii
Page
Evans v. Newton, 382 U.S. 296
(1966). . . . . . . . . . . . 17,27,28,
29,30,33
Flagg Bros., Inc. v. Brooks, 436
U.S. 149 (1978) . . 7 . . . . 18,28,
33,34
Ginn v. Mathews, 533 F.2d 477 (9th
Cir. 1976). . . . . * . . . 45,46,
47,50
Hines v. Cenla Community Action
Committee, Inc., 474 F.2d
1052 (Sth Cir. 1973). .... 46
Jackson v. Metropolitan Edision Co.,
419 U.S. 345 (1974) ....- 286,31,
32,33
Keyishian v. Board of a 385
U.S. S69 (1967)... 39
Klug, et al. v. New Perspective
School, Inc., et ain No. 80-
1451 . . . . . . . . . . xiii
Marsh v. Alabama, 326 U.S. 501
( 1946 ). >. . . . . . . . . 58
McQueen v. Druker, 438 F.2d 781
CRG Gabe BSTEP cc eo ew ew ewe
Moose Lodge No. 107 v. Irvis, 407
U.S. 163 (1972) ee a a oe ea 17-18,
30
ix
Page
Norwood v. Harrison, 413 U.S. 455
CACO er aeee ons es > le el «680, 81,82
Perez v. Sugarman, 499 F.2d 761 :
(2G. Gab. Berabe <« 0 « «se « '42,46,45,
49,50
Pickering v. Board of Education,
391 U.S. 563 (1968) ..... 39
Rendell-Baker v. Kohn, 641
F.2d 14 (lst Cir. 1981) ... 26,28,46
51,57
Rendell-Baker v. Kohn, 488
F. Supp. 764 (D. Mass.
1980 ) . . . * * . > * oo * * * xiii
Ross v. Allen, No. 80 Civ. 3422
(RWS) (S.D.N.Y., filed May
6, 1981). 7 . . . . . . 7 . . 48,50,51
United States v. Wiseman, 445 F.2d
792 (2a Cir.), cert. denied
404 U.S. 967 (1971) ..... 44
Weise v. Syracuse University, 522
F.2d 397 (2d Cir. 1975)... 24
Wieman v. Updegraff, 344 U.S. 183
By RS >
Wisconsin v. Yoder, 406 U.S. 205
(1972 ). >. . > > * > . . > * 38
x
CONSTITUTIONAL AND STATUTORY PROVISIONS
Page
United States Constitution,
Ee Ee Se eee 7)
United States Constitution,
Amendment Vv 7 * . * * . a * . 2 ’ 5
United States Constitution,
fp OS Ee Pe
20 U.S.C.A. §§ 1401 et seq. (West
1978) 7 . . . * * * .* * * 7 . 37
20 U.S.C.A. § 1413(a)(4)(B) (West
BPOND. 4: 6624s wie es tee OF
28 U.S.C.A. § 1254(1) (West 1966). xiv
28 U.S.C.A. § 1292(b) (West 1966). 6
28 U.S.C.A. § 1331 (West Supp.
1980) . . . . * * * * * . 7 . 4,5
28 U.S.C.A. § 1343 (West 1976) .. 4,5
28 U.S.C.A. § 1361 (West 1976) .. 4,5
28 U.S.C.A. § 2101(c) (West 1958). xiv
42 U.S.C.A. § 1983 (West _—
BOCES 6. #6 oe oo ee « » 2,8,42
42 U.S.C. § 2809(a). . .. 2... « 4§
Mass. Gen. Laws Ann. ch. 6, § 156
(West 1976 & Supp. 1981)... 3
Mass. Gen. Laws Ann. ch. 71B, § 2
(West Supp. 1981) ...... 8,10
xi
Mass. Gen. Laws Ann. ch. 71B, § 3
(West Supp. 1981) ...... 8,10
Mass. Gen. Laws Ann. ch. 71B, § 4
(West Supp. 1981) ...... 8
Mass. Gen. Laws Ann. ch. 71B, § 5
(West .Supp. 1961) ..-«-«-s«e- &
Mass. Gen. Laws Ann. ch. 71B, § 10
(West Supp. 1981) ...... Il
603 Code Mass. Regs. § 28, ch. 3,
pee. 32212 C2979) . ~ «© =e » 9
603 Code Mass. Regs. § 28, ch. 3,
par. 502.4(c) (1979). ... . 9-10
603 Code Mass. Regs. § 28, ch. 3
par. 804.2 (1979) ......- 910
603 Code Mass. Regs. § 28, ch. 3,
pars. 804.0-804-6 (1979). . . 10
OG; -2078,. Gm. TOG, © 2 2.2 0 oe
N.Y. Educ. Law §§ 4401 et seq.
(McKinney Supp. 1980) .... 48
N.Y. Soc. Serv. Law § 395 (McKinney
Cs Bees. 6 ee 6 ce tes o SE
N.Y. U.C.C. § 2-710(9) (McKinney
pe a a ee a
xii
PUBLICATIONS
Note, Enforcing the Right to an
"Appropriate" Education: The
Education for All Handicapped
Children Act of 1975, 92 Harv
be BOV. Been CAST s « & ec
38
xiii
OPINIONS BELOW
The opinion of the court of appeals
for both cases, as consolidated on appeal,
is reported at 641 F.2d 14 (lst Cir. 1981)
and appears in the Appendix hereto at l.
The Memorandum and Order of the District
Court for the District of Massachusetts in
Rendell-Baker v. Kohn, et al., No. 80-1328
below, is reported at 488 F. Supp. 764
(D. Mass. 1980) and appears in the Ap-
pendix hereto at 27. The April 7, 1980
Memorandum and Order of the District Court
for the District of Massachusetts in Klug,
et al. v. New Perspectives School, Inc.,
et al., No. 80-1451 below, is not reported
and appears in the Appendix hereto at 39.
xiv
JURISDICTION
The judgment of the Court of Appeals
for the First Circuit was entered in both
appeals below on February 12, 1981. On
May 4, 1981, this Court granted the peti-
tioners' motion for an extension of time
until June 12, 1981, within which to
petition for certiorari. See 28 U.S.C.A.
§ 2101(c) (West 1958). This petition was
filed on or before June 12, 1981. This
Court’s jurisdiction is invoked under 28
U.S.C.A. § 1254(1) (West 1966).
XV
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
United States Constitution, Amendment I:
Congress shall make no law ...
abridging the freedom of speech ....
United States Constitution, Amendment V:
No person shall ... .e@ deprived
of life, liberty, or property, with-
out due process of law ....
United States Constitution, Amendment XIV:
Section 1. ... No State shall
make or enforce any law which shall
abridge the privileges or immunities
of citizens of the United States; nor
shall any State deprive any person of
life, liberty, or property, without
due process of law; nor deny to any
person within its jurisdiction the
equal protection of the laws.
United States Code Annotated, Title 42,
Section 1983 (West Supp. 1981):
Every person who, under color of
any statute, ordinance, regulation,
custom, or usage, of any State or
Territory..., 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, privi-
leges, or immunities secured by the
Constitution and laws, shall be
xvi
liable to the party injured in an ac-
tion at law, suit in equity, or other
proper proceeding for redress.
Mass. Gen. Laws Ann., ch. 71B, § 3 (West
Supp. 1981):
.-. [T]he school committee of
every city, town or school district
shall identify the school age chil-
dren residing therein who have spe-
cial needs, diagnose and evaluate the
needs of such children, propose a
special education program to meet
those needs, provide or arrange for
the provision of such special ed-
ucation program, maintain a record
of such identification, diagnosis,
proposal and program actually
providec ....
Mass. Gen. Laws Ann., ch. 71B, § 4 (West
Supp. 1981):
The school committee of any
city, town or school district may, to
meet its obligations under section
three, ... subject to the consent
of the parent or guardian affected
thereby and subject to constitutional
limitations, ... enter into an agree-
ment with any public or private
school, agency, or institution to
provide the necessary special educa-
tion within the city, town or school
district.
Mass. Gen. Laws Ann., ch. 71B, § 5 (West
Supp. 1981):
xvii
Any school committee which pro-
vides or arranges for the provision
of special education pursuant to the
provisions of section three shall pay
for such special education personnel,
materials and equipment, tuition,
room and board, transportation, rent
and consultant services as are nec-
essary for the provision of such
special education.
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1980
SHEILA RENDELL~-BAKER,
Petitioner,
Vv.
SANDRA KOHN, ET AL.,
Respondents.
Petition For a Writ of Certiorari
to the United States Court of
Appeals for the First Circuit
Petitioners respectfully pray that a
writ of certiorari issue to review the
judgment and opinion of the United States
Court of Appeals for the First Circuit
entered in the above-entitled case on
February 12, 1981.
-2=—
STATEMENT OF THE CASE
This petition for a writ of
certiorari concerns two cases which
involve closely related issues and which
were consolidated on appeal by the United
States Court of Appeals for the First
Circuit.
Petitioner in the first case is
Sheila Rendell-Baker, a former teacher and
vocational counselor at the New Perspec-
tives School, Inc. (hereinafter the
"School"), one of the respondents herein.
Ms. Rendell-Baker filed her complaint on
July 28, 1977. She alleged, among other
things, that the School, acting under
color of state law and in violation of her
rights under the First, Fifth, and Four-
teenth Amendments and 42 U.S.C.A. § 1983
-3<
(West Supp. 1981), dismissed her on Jan-
uary 3, 1977, without notice or hearing,
in retaliation for her speech in support
of a student petition concerning matters
of school policy. Also named as defen-
dants were members of the School's Board
of Directors; Francis X. Bellotti,“ in his
capacity as Chairman of the Massachusetts
Committee on Criminal Justice (hereinafter
"MCCJ"); 5
Robert J. Kane, former
Executive Director of mccg;° and certain
federal officials, in their capacity as
Sur. Bellotti is also Attorney General of the
Commonwealth of Massachusetts.
Sthe MCCJ is a state agency which, among its
other duties, distributes funds received from the
federal Law Enforcement Assistance Administration.
Mass. Gen. Laws Ann. ch. 6, § 156 (West 1976 &
Supp. 1981).
6 While the case was pending in the district
court, Mr. William Highgas replaced Mr. Kane as
Executive Director and was duly substituted as a
defendant.
-4-
officials of the Law Enforcement Assis-
tance Administration (hereinafter
"LEAA").7 Jurisdiction was invoked pur-
suant to 28 U.S.C.A. §§ 1331, 1343, and
1361 (West Supp. 1980, 1976 & 1976). On
April 16, 1980, the district court
(Caffrey, C.J.) granted summary judgment
in favor of all defendants, on the ground
that the School's dismissal of Ms.
Rendell-Baker did not involve state ac-
tion. Summary judgment was affirmed by
the United States Court of Appeals for the
First Circuit in an opinion dated February
12, 1981.
Petitioners in the second case are
five former teachers and counselors® at
7 The federal defendants were dismissed by
order of the district court, and petitioners
herein do not challenge that dismissal.
Spetitioners are Wayne Klug, Carolyn
Anderson, Paul Stein, William Tilden, and Dawn —
Fonseca.
-5<
the School. These five petitioners also
Claim that they were dismissed, in June,
1978, for their support of student speech
and educational rights and for their other
speech critical of school policy and
administration, all in violation of their
rights under the First, Fifth, and
Fourteenth Amendments and 42 U.S.C.A.
§ 1983 (West Supp. 1981). Suit was com-
menced against the School and each of its
directors on September 12, 1978. Juris-
Giction was invoked pursuant to 28
U.S.C.A. §§ 1331, 1343, and 1361 (West
Supp. 1980, 1976 & 1976). On April 7,
1980, the district court (Mazzone, D.J.)
denied defendants' motion to dismiss,
holding that there was “sufficient in-
volvement by the state to meet the juris-
dictional challenge...." (App. 54) The
First Circuit Court of Appeals granted
-6<
leave to file an interlocutory appeal
under 28 U.S.C.A. § 1292 (b) (West 1966)
and consolidated the Klug appeal with the
Rendell: Baker appeal. In the same opinion
that affirmed the judgment in Rendell-
Baker, the court of appeals reversed the
order denying defendants’ motion to dis-
miss in Klug, with directions that judg-
ment be entered dismissing the complaint.
To understand the nature of the
petitioners' claims that the School acted
“under color of state law" when it
dismissed them for their speech, one must
recognize the vital role of the School in
the provision of public education under
Massachusetts law. Under Massachusetts
law, all special needs students have an
entitlement to a publicly-funded education
under the supervision of the state and
local governments. As the Massachusetts
aJe
Supreme Judicial Court reaffirmed
recently, Chapter 766 of the Massachusetts
Acts of 1972, codified at Mass. Gen. Laws
Ann. ch. 71B (West Supp. 1981), and the
regulations promulgated thereunder, 603
Code Mass. Regs. § 28 et seg. (1979),
create “a comprehensive and _ complete
program of evaluation and placement for
children with special education needs."
Commonwealth v. School Committee of
Springfield, Mass. Adv. Sh. [1981] 502,
504, 417 N.E.2d 408, 409-10, quoting Board
of Education v. Assessor of Worcester, 368
Mass. 511, 515, 333 N.E.2d 450, 453
(1975).
Under the statute, the school com-
mittee of every city, town or school
district must identify all children be-
tween the ages of three and twenty-one
who, because of temporary or permanent
-B-
physical or emotional disability, have
special educational needs; diagnose and
evaluate the special needs of each such
child; prepare an individualized educa-
tional program tailored to meet those
needs; and implement or arrange for the
implementation of that individualized pro-
gram. Mass. Gen. Laws Ann. ch. 71B, § 3
(West Supp. 1981). Depending upon the
needs of the child, the program may con-
sist of as little as additional, in-class
assistance or as much as teaching, treat-
ment, and occupational training in a long-
term residential school. Mass. Gen. Laws
Ann. ch. 71B, § 2 (West Supp. 1981).
School districts may offer special pro-
grams themselves, through existing public
schools, or they may contract with private
schools to implement such programs. Mass.
Gen. Laws Ann. ch. 71B, § 4 (West Supp.
=9e
1981). However, under the regulations,
the school district must provide special
education programs in the least restric-
tive environment possible. 603 Code Mass.
Regs. § 28, ch. 3, par. 322.2 (1979).
"The statute impliedly requires, and the
regulations explicitly mandate, public
school education to the maximum extent
possible; private school placements are
permitted only as a necessary alterna-
tive." Commonwealth v. School Committee
of Springfield, Mass. Adv. Sh. [1981] at
505-506, 417 N.E.2d at 408.
If the school committee decides to
Place the special needs child in a private
school, there must be a review of that
decision at least once every three months
to determine if the child can be trans-
ferred to a less restrictive environment,
such as a regular public school. 603 Code
-10-
Mass. Regs. § 28, ch. 3, pars. 502.4(c),
804.2 (1979). While the child is at a
private school, the school committee must
monitor the child's educational progress,
Mass. Gen. Laws Ann. ch. 71B, §§ 2, 3
(West Supp. 1981), with a view toward re-
turning the child to a regular course of
instruction in a public school as soon as
possible. Id. A private school which
accepts a special needs child assigned by
a school committee is required to agree to
implement the special educational program
designed for the child and to comply with
the detailed regulations promulgated under
the statute. 603 Code Mass. Regs. § 28,
ch. 3, pars. 804.0-804.6 (1979). The
school committee of the city, town or
school district which assigns a special
needs child to a private school is
required to bear the expenses associated
@-lle
with that placement. Mass. Gen. Laws
Ann. ch. 71B, § 5 (West Supp. 1981). In
no event may a parent or guardian be
charged for the provision of a special
education program to a child. Mass. Gen.
Laws Ann. ch. 71B, § 10 (West Supp. 1981).
Against this background the peti-
tioners herein assert that the School
acted under color of state law when it
dismissed them from their positions as
teachers and counselors for supporting
student rights and criticizing school
policies and administration. The School
is a small non-profit institution which
provides a high school program. to
approximately 50 students who are unable
to function in a normal high school
setting. It is located on privately-owned
-12-
land in the Town of Brookline, Massachu-
setts, and is organized under the laws of
the Commonwealth of Massachusetts. Opera=*
tion of the School is under the control of
a Board of Directors, none of whose mem-
bers is a government official or appointed
by a governmental body.
As of 1978, all 50 students enrolled
at the School had alcohol, drug or
behavioral problems or other’ special
needs, and had been placed in the School
pursuant to Mass. Gen. Laws Ann. ch. 71B
by the Town of Brookline or the City of
Boston, or by the Drug Rehabilitation
Division of the Massachusetts Department
of Mental Health. All were attending on a
tuition-free basis. The students received
a diploma certified by the Town of
Brookline School Committee upon
graduation. The Town of i § Brookline
-13-
maintained no suitable facilities for
educating these students within its
traditional public schools.”
In fiscal year 1975-76, 91% of the
School's funding came from public sources.
In fiscal year 1976-77, public sources ac-
counted for 99% of the School's funds. A
portion of these funds was provided by the
LEAA under a grant which was channeled to
the School through the MCCJ. The grant
was to fund a vocational counseling and
placement program at the School during the
years 1976 and 1977. Ms. Rendell-Baker's
position was funded by this grant.
although the court of appeals found no
support in the record for this assertion, 641 F.2d
at 17, n.2 (App. 3-4, n.2), the affidavit of Wayne
Klug, which was a part of the record below,
stated, at paragraph 3: "The Town of Brookline,
from which a large number of the School's students
come, has no educational programs which can meet
the special needs of the students which it refers
to the School, within its public school system."
~14-
On December 2, 1976, students at the
School petitioned its Board of Directors
seeking reinstitution of the prior role
piayed by the Student-Staff Council in
personnel decisions at the School. Ms.
Rendell-Baker spoke in favor of the
student petition, which was opposed by the
School's Director, Sandra Kohn. On
January 3, 1977, according to the
complaint, Ms. Kohn fired Ms. Rendell-
Baker for expressing an opinion contrary
to her own. Before notifying Ms. Rendell-
Baker that she was to be discharged, Ms.
Kohn advised the MCCJ of her intentions.
After the dismissal, the MCCJ advised the
School that it would not approve the
hiring of a replacement for Ms. Rendell-
Baker until the School provided a satis-
factory explanation to the MCCJ for the
=1$@
dismissal. The School provided an expla-~
nation and, by letter to the School dated
March 29, 1977, the MCCJ indicated its
satisfaction with that explanation. Ms.
Rendell-Baker filed suit a few months
later.
The dismissals in the Klug case oc-
curred in June, 1978, shortly after
petitioners had complained privately to
the School's Board of Directors and
publicly in a letter to the Brookline
Chronicle about certain aspects of the
School and its administration. The
criticism which led to the dismissals in
the Klug case, like that in the Rendell-
Baker case, related directly to the per-
formance by the School of its duties as a
provider of educational services under
Mass. Gen. Laws Ann. ch. 71B.
~16=-
As noted, the Court of Appeals for
the First Circuit held that the School did
not act under color of state law in dis-
charging the petitioners. Accordingly, it
affirmed summary judgment in favor of de-
fendants in Rendell-Baker and reversed the
order denying defendants' motion to
dismiss in Klug.
REASONS FOR GRANTING THE WRIT
This petition for a writ of certior-
ari should be allowed because the court of
appeals decided an important question of
federal law which has not been, but should
be, settled by the Supreme Court. Also,
to the extent this Court and other federal
courts have addressed related questions,
the decisions have conflicted, in prin-
ciple, with the decision of the court of
appeals in this case.
1. This Case Presents an Important,
Unsettled Question of Federal Law.
In recent years, this Court has often
addressed the question of whether conduct
of an ostensibly private institution could
be attributed to the state. E.g., Burton
v. Wilmington Parking Authority, 365 U.S.
715 (1961); Evans v. Newton, 382 U.S. 296
(1966); Moose Lodge No. 107 v. Irvis, 407
-18-
U.S. 163 (1972); Jackson v. Metropolitan
Edison Co., 419 U.S. 345 (1974); Flagg
Bros., Inc. vy. Brooks, 436 U.S. 149
(1978). However, the present case raises
an important federal question which does
not appear to have been addressed. That
question is whether an ostensibly private
school becomes subject to any consti-
tutional constraints when it accepts the
delegation of a major portion of the
state's statutory obligation to provide
public education. A review of this
Court's prior "state action" decisions
will assist in an appreciation of the
novelty of this question. A brief discus-
sion of the increasingly important role
which private schools have come to play in
the provision of public education, in
Massachusetts and elsewhere, under
statutes like Mass. Gen. Laws Ann. ch.
71B will assist in an appreciation of the
question's significance.
A. The Question Presented is
Unsettled.
To place the following review of
prior cases in context, it should be
emphasized at the outset that this case
does not raise the broader question wheth-
er elementary and high school education is
so inherently affected with a public
interest that all private schools which
provide such education should be held to
the same constitutional standards as
public schools. The point which distin-
guishes the present case is that the
private school involved here was providing
public, not private, education, in the
sense that students who attended the
School had been placed there by a state
agency and local school committees to
obtain, at public expense and subject to
-20-
public regulation and oversight, the edu-
cation to which they were entitled under
state law. See, e.g., Commonwealth v.
School Committee of Springfield, Mass.
Adv. Sh. [1981] 502, 515, 417 N.E.2d 408,
415 ("The statute's purpose is, primarily,
to help specified children with special
needs obtain the education which is theirs
by right.").
It should also be emphasized at the
outset that the present case does not
raise the question whether a private
school becomes a state actor for all pur-
poses when local governments delegate to
it their obligation to provide public
education. The present case raises only
the question whether the private school
becomes a state actor in connection with
activities directly related to the manner
in which it performs that delegated
-21-
function. For example, a school could be
acting under color of law in dismissing
teachers for criticizing educational
policy and not be acting under color of
law in dismissing teachers for complaining
about the inadequacy of the school's park-
ing facilities, since the adequacy of a
school's parking facilities bears little,
if any, relationship to the provision of
public education by the school.
Finally, it should be emphasized that
the present case does not raise the ques-
tion whether the activities of a private
entity become infused with state action
whenever the private entity receives
public funds or is subject to public regu-
lation, or both. Again, the overriding
factor which distinguishes the present
case is that the private school here is
not only publicly funded and regulated,
-22-
but it has assumed the local government's
own obligation to provide public education
at public expense to the students assigned
to the school by a state agency and local
school committees.
A review of leading Supreme Court
cases in this area quickly reveals that
none has dealt directly with the important
question presented in this case. For
example, the question presented in Burton
v. Wilmington Parking Authority, 365 U.S.
715 (1961), was whether the state had
become so involved in the affairs of a
private entity that the activities of the
private entity became imbued with state
action. After a thorough sifting of the
facts and circumstances, the Court con-
cluded that the state parking authority
had so insinuated itself into the private
business affairs of its restaurant lessee
-23-
that the discriminatory practices of the
restaurant could fairly be attributed to
the state. The present case essentially
raises the converse question: May the
state, by paying a private contractor to
provide a public service which the state
would otherwise be required to provide, so
disassociate itself from the provision of
that public service that the private
entity to which the state delegates au-
thority avoids all constitutional scrutiny
of the manner in which it provides that
service?
This distinction has great signifi-
cance. When, as in Burton, the question
is whether the state has so far insinuated
itself into private conduct that the pri-
vate conduct becomes, in effect, the
conduct of the state, the more the state
intrudes, through regulation or subsidy,
-24-
the more appropriate it is to find state
action. It is therefore not at all sur-
prising, in light of cases suci: as Burton,
that lower federal courts, in evaluating
allegations of state action, routinely
analyze the extent and depth of the
state's involvement in the private con-
duct. See, e.g., Downs v. Sawtelle, 574
F.2d 1, 6-8 (lst Cir.), cert. denied, 439
U.S. 910 (1978); Braden v. University of
Pittsburgh, 552 F.2d 948, 958-62 (3d Cir.
1977); Berrios Vv. Inter American
University, 535 F.2d 1330, 1332 (1st Cir.
1976}; Weise v. Syracuse University, 522
F.2d 397, 406-08 (2a Cir. 1975); Cohen v.
Illinois Institute of Technology, 524 F.2d
818, 824-27 (7th Cir. 1975), cert. denied,
425 U.S. 943 (1976). Such a mode of
analysis is simply inadequate, however,
when the governmental entity has not
-25-
insinuated itself into private affairs but
rather has attempted to shed authority and
responsibility by paying others to perform
tasks which it would otherwise be obli-
gated to perform. To say that there is no
state action under such circumstances
because there is little or no_ state
involvement in the way the private con-
tractor exercises the authority delegated
to it by the state is to beg the question.
Apparently, however, the First Cir-
cuit failed to appreciate this distinction
because it mistakenly employed a mode of
analysis more suited to a Burton type
“insinuation" case than to the "dele-
gation" case before it. Thus, the court
stated that in order "to find that an
otherwise privately operated institution
is so dominated by the state that all its
actions occur ‘under color of state law,'
-26-
we must find that the state actually does
control the institution, not just that it
could do so." 641 F.2d at 25 (App. 19).
In the same vein, the court stated:
For purposes of this case, it is par-
ticularly important that none of the
state agencies involved has under-
taken to regulate the school's per-
sonnel policies, except to require
that its policies be set forth in
writing. The content of the school's
personnel policies, including cri-
teria and procedures for hiring and
firing, has been left to the discre-
tion of the school's management. Id.
(App. 20-21) (Footnote omitted).
This passage demonstrates the fundamental
error in the First Circuit's analysis.
When, as here, the case concerns the
state's delegation of its statutory duties
to a private entity, the fact that there
has been a total rather than a partial
abdication of authority should not be a
basis for rejecting a claim of state ac-
tion.
@27=
In some respects, Evans v. Newton,
382 U.S. 296 (1966), came closer to
addressing the question presented in the
case at bar. There, the City of Macon,
Georgia, attempted to resign as trustee of
a park establ/ shed under the will of Sena-
tor Bacon so that private trustees, who
were expected to continue operating the
park as a segregated facility, could be
appointed. The Supreme Court reversed a
state court judgment which would have per-
mitted such substitution. The Court
stated:
{[W)hen private individuals or groups
are endowed by the State with powers
or functions governmental in nature,
they become agencies or instrumen-
talities of the State and subject to
its constitutjonal limitations. 382
eS at 299.
10 the Court noted, however, that a private
entity such as a school does not assume all the
(Footnote 10 continued.on next page)
-28-
Although this principle certainly appears
applicable here, the peculiar fact situa-
tion in Newton has generated some uncer-
tainty as to the scope of the decision.?+
Thus, in the present case, the First Cir-
cuit construed Newton as standing for the
marrow proposition that a state may not
create a “sham private entity," 641 F.2d
at 24 (App. 17), for the “actual purpose
of evading constitutional requirements."
(Footnote 10 continued from previous page)
constitutional obligations of the state just
because it performs the parallel function of
providing private education. 382 U.S. at 300.
The present case raises the very different issue
of whether a private school which is paid by an
arm of the state to provide public education
thereby assumes the constitutional obligations of
the state in connection with its provision of such
public education.
nis Court itself has stated that "...
Newton rests on a finding of ordinary state action
under extraordinary circumstances." Flagg Bros.,
Inc. v. Brooks, 436 U.S. 149, 159, n.8 (1978).
-29-
Id. at 23 (App. 16). Because of this
uncertainty, Newton did not settle the
question presented here.
Newton also left the question un-
settled because it concerned the extent to
which the state had insinuated itself into
a facility whose origin was private, not
public. As Justice Harlan noted in dis-
sent: “Beaconsfield had its origin not in
any significant governmental action but
rather in the personal social philosophy
of Senator Bacon and on property owned by
him." 382 U.S. at 316-17 (Footnote
omitted). Thus, whether one agrees or
disagrees with the suggestion by some com-
mentators that the decision in Newton
reflected a recognition that the provision
of park facilities is an essential public
function, Newton was not a case where, as
here, a city which was under a statutory
-30-
obligation to provide a public service at
public expense elected to delegate its
obligation to a private contractor. ??
Moose Lodge No. 107 v. Irvis, 407
U.S. 163 (1972), further explored the
question considered in Burton of how much
state involvement in private conduct was
required before the conduct became imbued
with state action. Again, the Court did
not consider the very different question
of whether the state could delegate its
statutory duty unencumbered by the con-
stitutional obligations which would have
ley owever, if those had been the facts in
Newton, and if the private contractor hired by the
City of Macon to provide the parks which Macon was
required to provide had attempted to exclude
blacks, or, for that matter, speakers whose view-
points conflicted with those of the private con-
tractor, the arguments in favor of state action
would undoubtedly have been even more compelling,
no matter how benevolent the city's motive in
delegating its authority to the private contractor.
See Norwood v. Harrison, 413 U.S. 455 (1973),
discussed infra at 51 - 57.
@3l-
been associated with the performance of
that duty if the duty had not been dele-
gated. Thus, as the Court noted, Moose
Lodge No. 107 did not “discharge[] a func-
tion or perform[] a service that would
otherwise in all likelihood be performed
by the State." 407 U.S. at 175.
The significant distinction between
the two questions was recognized in
another leading state action decision,
Jackson v. Metropolitan Edison Co., 419
U.S. 345 (1974). Although the Court did
not find state action in the termination
of a customer's power by a private utili-
ty, without notice or hearing, the Court
stated:
If we were dealing with the exercise
by Metropolitan of some power dele-
gated to it by the State which is
traditionally associated with sov-
ereignty, such as eminent domain, our
case would be quite a different one.
But while the Pennsylvania statute
imposes an obligation to furnish
service on regulated utilities, it
imposes no such obligation on the
State. The Pennsylvania courts have
rejected the contention that the fur-
nishing of utility services is either
a state function or,3 municipal duty.
419 U.S. at 352-53.
As this passage illustrates, this Court
has indeed recognized that the mode of
analysis employed in cases where the state
has chosen to become involved in private
activity is not necessarily appropriate
where the state has chosen to delegate
1375 light of this observation, it is
particularly significant that the Massachusetts
Supreme Judicial Court has interpreted Mass. Gen.
Laws Ann. ch. 71B as imposing an obligation on
local school committees to “provide an appropri-
ate, publicly supported education to each school-
age child with special needs." Commonwealth v.
School Committee of Springfield, Mass. Adv. Sh.
[1981] 502, 504-5, 417 N.E.2d 408, 410. Unlike
the electrical power furnished by the public
utility in Jackson, special education programs in
Massachusetts are publicly funded, whether they
are provided directly by the local government or
indirectly through a private school.
-33-
public authority. For this reason, Jack-
son also does not settle the question
raised in the present case.
Flagg Bros., Inc. v. Brooks, 436 U.S.
149 (1978), unlike all the preceding cases
discussed, with the possible exception of
Evans v. Newton, 382 U.S. 296 (1966), was
a case which did involve the asserted
delegation of sovereign power to a private
entity. In Flagg Bros., the Court de-
clined to find that a New York law which
permitted a warehouse to enforce its lien
for storage charges through a sale of
stored property involved state action.
Respondents had argued that the actions of
the warehouse were attributable to the
state because the state had delegated its
dispute resolution function to warehouse-
men. Although the Court rejected this
argument on the ground that dispute reso-
lution had never traditionally been an
-34-
exclusive state function, the Court noted
that it was expressing "no view as to the
extent, if any, to which a city or State
might be free to delegate to private
parties the performance of such functions
{as education...] and thereby avoid the
strictures of the Fourteenth Amendment."
436 U.S. at 163, 164. Although the pres-
ent case is distinguishable on several
grounds, -# it does raise this very ques-
tion left unanswered by Flagg Bros.
Mor example, the present case involves a
complete delegation by the state of its responsi-
bility for the dismissal of special education
teachers. Even in Flagg Bros., the state retained
its authority to resolve post-sale claims for
damages based upon unlawful sales. N.Y. U.C.C.
§ 2-710(9) (McKinney _—— Also, in the present
case, the state had a duty to provide special
education, whereas, in a Bros., there was, at
most, only an expectation that t the state would
resolve private disputes. When the claim of state
action relates to a function which the state is
obligated to perform, rather than to a function as
(Footnote 14 continued on next page)
-35-
B. The Question Presented is
Important.
Just as it is beyond dispute that the
federal question presented in this case is
unsettled, it is similarly beyond dispute
that this federal question is an important
one, because of both the number of persons
(Footnote 14 continued from previous page)
to which there is only an expectation of perform-
ance, tradition and exclusivity should not be
considered essential. This is because tradition
and exclusivity are significant only insofar as
they give rise to a reasonable expectation that
the state will continue to provide a service which
it had always provided in the past. This expec-
tation, in turn, gives rise to the further expec-
tation that the service will continue to be pro-
vided in accordance with constitutional require-
ments. it is this latter expectation which the
law deems worthy of recognition and fulfillment.
However, when a state statute mandates that a
service be provided, then regardless of whether
the service had been provided by the state in the
past, society has not just an expectation that the
state will provide the service, but an entitlement
to that service. This entitlement itself gives
rise to an expectation that constitutional re-
quirements will be observed, which expectation is
at least as worthy of recognition and fulfillment
as the expectation associated with tradition and
exclusivity.
-36-
affected and the nature of the rights in-
volved.
In Massachusetts alone, 140,000
children receive some kind of special
education services under Mass. Gen. Laws
Ann. ch. 71B, and more than 5,500 of those
children are placed in so-called "private"
day schools or residential programs. Com-
monwealth v. School Committee of Spring-
field, Mass. Adv. Sh. [1981] 502, 507, n.
&, 417 N.E.2d 408, 411, n. 8. Moreover,
the question is not one confined to Massa-
chusetts. Virtually every state in the
nation makes some provision in state law
for the obligation to educate similar
special needs, exceptional or handicapped
15
children. The overwhelming majority of
the states clearly allow this obligation
154 compendium of statutes appears in the
Appendix at 85-88.
to be delegated to private entities such
as the school in this case.+®
Finally,
the federal governmert has conditioned the
receipt of specified federal funds under
the Education of All Handicapped Children
Act of 1975 on the submission of state
plans designed to ensure educational
opportunity for handicapped children at no
cost to the child's parent or guardian.
20 U.S.C.A. §§ 1401 et seg. (West 1978).
Like the Massachusetts statute and the
overwhelming majority of other states’
statutes, the federal provision permits
states to meet their obligation by
delegating the education of handicapped
students to private institutions. 20
U.S.C.A. § 1413(a)(4)(B) (West 1978). At
164 compendium of statutes appears in the
Appendix at 89-91.
-38-
least forty-nine states have adopted
special education plans pursuant to the
federal statute. Note, Enforcing the
Right to an “Appropriate” Education: The
Education for All Handicapped Children Act
of 1975, 92 Harv. L. Rev. 1103, 1105
(1979).
Moreover, the significance of the
rights involved in this case makes it one
of public importance meriting review by
this Court. This Court has long recog-
nized the importance to this nation of
public education. See, e.g., Wisconsin v.
Yoder, 406 U.S. 205, 213 (1972) ("“Provid-
ing public schools ranks at the very apex
of the function of a State"); Brown v.
Board of Education, 347 U.S. 483, 493
(1954) ("Today, education is perhaps the
most important function of state and local
governments"). This Court has also long
-39-
recognized the importance of public school
students being taught by teachers whose
First Amendment rights were protected.
See, e.g., Keyishian v. Board of Regents,
385 U.S. 589, 603 (1967); Wieman v.
Updegraff, 344 U.S. 183, 196 (1952)
(Frankfurter, J., concurring) .*7 Not only
do the students benefit directly in being
taught by teachers who retain their
freedom of speech, see id., but their
parents and the public benefit by having
persons knowledgeable about school affairs
contribute to the public debate thereon.
See, e.g., Pickering v. Board of
Education, 391 U.S. 563, 571-72 (1968).
17 a5 a group, special needs students, because
of their disabilities, probably have the greatest
need for teachers who are free to comment on their
education and, if necessary, to advocate for them.
-40-
The decision below also has important
ramifications for the future of special
education in Massachusetts. When the
Massachusetts state legislature enacted
Mass. Gen. Laws Ann. ch. 71B, it sought to
“prevent denials of equal education oppor-
tunity" to special needs children.
Commonwealth ev. School Committee of
Springfield, Mass. Adv. Sh. [1981] at 513,
417 N.E.2d at 414, quoting St. 1972, ch.
766, §1. Under the First Circuit's
interpretation of federal law, those
children who are placed by their school
committee in ostensibly private schools do
not enjoy the benefit of receiving their
public education from teachers who have a
constitutional right to comment on issues
related to that education. Hence, the
education which the state so scrupulously
tried to make equal has now been rendered
-41-
inherently unequal as a matter of federal
law.
To summarize, because of the nature
of the rights involved and the possible
application of this decision to special
education programs in virtually every
state in the nation, and because the ques-
tion presented remains unsettled, there is
a substantial need for guidance from this
Court as to the circumstances, if any,
under which local governments may delegate
to private schools their statutory duty to
provide special education programs without
also delegating their attendant constitu-
tional obligations.
RR To the Extent This Court and Other
Federal Courts Have Addressed Related
Gust ones he Decisions Have Con-
cte n Principle, With the Deci-
sion of the Court of Appeals in This
Case.
Although no other court of appeals
appears to have decided the precise ques-
-42-
tion raised here, both the Second and
Ninth Circuits have found state action in
cases which, in principle, are indistin-
guishable. Also, the United States Dis-
trict Court for the Southern District of
New York very recently denied a motion to
dismiss for lack of state action on facts
virtually identical to those here.
The Second Circuit case, Perez v.
Sugarman, 499 F.2d 761 (2d Cir. 1974), was
a civil rights suit under 42 U.S.C. § 1983
brought by a parent against, among others,
two private child care facilities, for the
allegedly unlawful and unconstitutional
detention of plaintiff's children. The
children had been placed in the private
facilities by the City of New York, pursu-
ant to N.Y. Soc. Serv. Law § 395 (McKinney
Supp. 1972), which provided that the state
was responsible for children in need of
-43-
care and protection, and authorized the
state, in fulfilling its obligation, to
act through authorized private agencies of
the type named as defendants in the
complaint. The court found state action
because the facilities were instrumental-
ities through which the state was ful-
filling its legal obligation to care for
the children. As the court explained:
[T]he statutory scheme expressly
contemplates that in performing this
public function of caring for child-
ren the State may utilize private
entities of the sort we have here.
This is precisely what the city wel-
fare officials did when they trans-
ferred appellant's children to the
care of the institutional defendants.
But, as the statute makes incontro-
vertibly clear, it is the State which
in effect is providing the care
through the private institutions.
This exercise of the administrative
placing prerogative does not affect
in any way the State's ultimate re-
sponsibility for the well-being of
the children, and, consequently, the
public nature of the function being
-44-
performed. 499 F.2d at 765 (Emphasig
in original; footnote omitted).
Although Perez involved private child
care facilities rather than a private
school, the statutory scheme under which
children were placed in the facilities in
Perez was otherwise very similar to the
statutory scheme under which students were
assigned to the School. Under the reason-
ing of Perez, any actions of the School
directly related to the discharge by the
18; ster in its opinion, the court noted that
the private institutions would be subject to con-
stitutional requirements only in connection with
their discharge of the public function of detain-
ing plaintiff's children, and not with any
""collateral aspect of' the business of operating
an institution which cares for children." 499
F.2d at 766, quoting United States v. Wiseman, 445
F.2d 792, 796 (2d Cir.), cert. denied, 404 U.S.
967 (1971). The present case would not require
the extension of the state action concept beyond
these limits suggerted in Perez.
-45-
School of its obligation to provide educa-
tion to those students, including the dis-
missal of teachers for expressing their
views on that education, would be state
action. Since Perez and the present case
are, in principle, indistinguishable, it
is fair to say that there is a conflict
between the two circuits on this issue.
The present case is also indistin-
guishable in principle from, and in con-
flict with, Ginn v. Mathews, 533 F.2d 477
(9th Cir. 1976). There, the defendant was
a private nonprofit corporation which
received state and federal funds for the
purpose of operating a Project Headstart
Program. Such programs were authorized by
federal statute and were funded through
federal grants "to public or private non-
profit agencies" such as defendant. 533
F.2d at 472 citing 42 U.S.C. § 2809(a).
-46-
Plaintiffs alleged that they had been dis-
missed by defendant in violation of their
First, Fifth, and Fourteenth Amendment
rights. The district court found no state
action and dismissed, but the Ninth Cir-
cuit reversed, citing, ironically, an
earlier First Circuit decision, McQueen v.
Druker, 438 F.2d 781 (1st Cir. 1971).?9
In the present case, the First Cir-
cuit purported to distinguish Mathews on
the ground that, in Mathews, "hiring and
firing were under the control of a Board
of Directors, the composition of which was
controlled in part by the regulations."
641 F.2d at 27, n. 23 (App. 23, n. 23).
It is not clear to what Board of Directors
19 put see Hines v. Cenla Community Action
Committee, Inc., 474 F.2d 1052 (5th Cir. 1973),
where a divided panel of the Fifth Circuit
affirmed a finding of no state action on facts
very similar to Mathews.
-47-
and to what regulations the First Circuit
was referring. Perhaps it was alluding to
a federal manual which required that a
Headstart Policy Council, consisting in
part of parents of Headstart children, be
permitted to approve or disapprove the
hiring or firing of Headstart staff. 533
F.2d at 480. If so, it is difficult to
see why this should distinguish Mathews,
because the Headstart parents would have
been no more closely tied to the state
than the defendant members of the Board of
Directors who controlled hiring and firing
in the present case. Therefore, it may
fairly be said that there is also a con-
flict between the decisions of the First
-48-
and Ninth Circuits on this matter.?°
The case most nearly on point is an
as yet unreported decision of the United
States District Court for the Southern
District of New York, Ross v. Allen, No.
80 Civ. 3422 (RWS) (S.D.N.Y., filed May 6,
1981), a copy of which is reproduced in
the Appendix. Ross involved the New York
counterpart of the Massachusetts special
education statute, N.Y. Educ. Law §§ 4401
et seg. (McKinney Supp. 1980). Plaintiff
had been employed as a psychologist by
defendant, a private school whose main
function was to educate handicapped
children referred to the school by the New
2055 fact, in one respect, the argument in
favor of state action was considerably weaker in
Mathews than in the present case. In Mathews,
there does not appear to have been an affirmative
obligation on the part of the state or federal
government to establish and fund Headstart Pro-
grams, whereas, in the present case, local govern-
ments were obligated to provide special education.
~49-
York City Board of Education. She alleged
that she had been unlawfully terminated by
the school for exercising her First
Amendment rights on behalf of one of the
school's students. The school moved to
dismiss on the ground that plaintiff's
dismissal did not involve state action,
but the court denied the motion, on the
authority of Perez v. Sugarman, 499 F.2d
761 (2d Cir. 1974). The court stated:
The statutory scheme involved here
is, in all relevant respects, indis-
tinguishable from that relied upon by
the court in Perez. Under New York
Education Law §§ 4401 et seg., the
state has the duty to provide for the
educational needs of handicapped
children. It can fulfill that duty
either through operating programs in
the public schools oor through
contracting with private
institutions, but it retains respon-
sibility for the provision of educa-
tional services regardless of the
means by which they are provided.
- « + Here, as in Perez, it would
appear that the state in effect pro-
vides the mandated care through the
private institution with which it
*
contracts. Slip Op. ag, 5 (App. 68-
70) (Footnote omitted).
As Perez, Mathews and Ross illu-
strate, there is a considerable split of
authority among lower federal courts as to
the extent to which a governmental agency
may delegate statutory duties without also
delegating attendant constitutional
obligations. In at least two respects,
there is also a conflict in principle
between opinions of this Court and the
decision of the First Circuit. The first
conflict concerns the First Circuit's
reluctance to find state action in a dele-
21 at this point, in a footnote, the court
purported to distinguish the present case on the
ground that it was not clear from the opinion
whether, under the Massachusetts statute, the
state continued to be responsible for the child's
education following the placement. However, as
noted supra, at 9-10, the state continues to have
such oversight responsibilities under Massa-
chusetts law. For this reason, Ross is not dis-
tinguishable.
-5l-
gation case without a preliminary finding
that the delegation was a subterfuge to
evade constitutional requirements. See
641 F.2d at 23-24 (App. 16-17). The
second conflict concerns the question of
standing.
On several occasions, this Court has
emphasized that, when fundamental rights
are infringed, effect is at least as
important as purpose. For example, in
Norwood v. Harrison, 413 U.S. 455 (1973),
the Court struck down a program under
which the State of Mississippi lent text-
books to private schools, including segre-
gated schools. The district court had
found no discriminatory motive, although
the effect of the program was to foster
discrimination. This Court did not
disturb those findings, but it held that a
proper motive could not compensate for a
discriminatory effect:
We need not assume that the State's
textbook aid to private schools has
been motivated by other than a sin-
cere interest in the educational wel-
fare of all Mississippi children.
But good intentions as to one valid
objective do not serve to negate the
State's involvement in violation of a
constitutional duty. "The existence
of a permissible purpose cannot sus-
tain an action that has an imper-
missible effect... ." 413 U.S. at
466-67 (Citation omitted).
The Court went on to explain that even
though the private schools had associa-
tional rights, including the right to
practice private discrimination, those
rights were outweighed by the discrimina-
tery effect of the program. 413 U.S. at
469-70.
Norwood suggests an appropriate
framework for analysis of the present
case. First, the court of appeals should
have attempted to identify the competing
interests at stake. Then it should have
~53-
attempted to weigh those interests in the
context of the facts of the case.
Finally, it should have considered the
probable way its decision would affect
those competing interests.
Had the First Circuit undertaken this
type of analysis, it would have observed
that the School, like other private in-
dividuals and institutions, has certain
privacy and associational rights, in-
cluding the right to hire and fire em-
22 On the other hand, because
ployees.
public school students are assigned to the
School, competing First Amendment inter-
ests are at stake. Assigned students do
not freely choose to become associated
with the School. Yet, they have as much
220he state action requirement is itself one
of the strongest safeguards against federal en-
croachment on privacy and associational rights.
-54-
interest as other public school students
in receiving their education from teachers
who need not fear for their jobs if they
speak out on matters of educational
policy. Parents of such students also
have a strong interest in being able to
discuss educational programs with teachers
who can be candid in the expression of
their opinions. Members of the community,
who fund special education programs
through their tax dollars, also have an
interest in hearing the opinions of
teachers as to how wisely those dollars
are being expended. All of these
interests should have been identified as
worthy of protection.
The second step in the analysis
should have been for the court to weigh
those competing interests. In doing so,
it would have been appropriate for the
-55-
court to consider the fact that teachers
are uniquely qualified to contribute to
public and private debate concerning
educational programs and policies, by vir-
tue of their training, their experience,
and, perhaps most importantly, their
proximity to their students and their
familiarity with their students’ needs.
It would also have been appropriate to
consider the fact that the speech for
which petitioners were dismissed included
public speech (in a town newspaper) and
private speech (to the Board of Directors)
which was directly related to the per-
formance of the public function which the
state had delegated to the School.
Conversely, the court should have dis-
counted the School's claim to privacy and
associational rights in recognition of the
fact that the School willingly accepted
-56-
the placement by the state of all fifty of
the School's students, as well as public
funds appropriated by the state to pay for
the education of those fifty students.
Finally, after weighing the competing
interests, the court should have con-
sidered the likely effect its decisions
would have on those interests. Had it
done so, it would have been clear that a
rejection of petitioners' state action
Claim would have the effect of making more
teachers reluctant to participate in pub-
lic or private debate concerning special
education, to the detriment of students,
parents, concerned citizens and the values
embodied in the First Amendment. On the
other hand, since the School's entire
student body had been placed there by the
-57=-
state, at the School's request and at pub-
lic expense, and with the School's whole-
hearted approval, it would also have been
apparent that extending limited First
Amendment protection to teachers under the
circumstances of this case would not seri-
ously impair the School's privacy and
associational rights. Therefore, under
this type of analysis, which would have
been more in keeping with prior decisions
of this Court, the court of appeals should
not have dismissed petitioners' claims.
The decision of the court of appeals
also conflicts, in principle, with deci-
sions of this Court to the extent it
suggests that, because petitioners were
not “intended beneficiaries of the service
for which the state has contracted with
the school," 641 F.2d at 26 (App. 23),
they lacked standing to challenge their
-58-
dismissals on First Amendment grounds.
This narrow view of petitioners' standing
overlooks cases such as Marsh v. Alabama,
326 U.S. 501 (1946), which emphasize that
the right of free speech should be
preserved not just for the benefit of the
speaker but for the benefit of society as
a whole. For reasons previously
discussed, teachers are uniquely qualified
to participate with students, parents,
school administrators and the community at
large in debates concerning educational
policy and programs. Indeed, as
professionals in the field of education,
they would properly feel an obligation to
do so. Yet, if they know they may lose
their jobs for expressing their opinions
as freely as their counterparts in public
schools, they will be reluctant’ to
participate in those debates. Thus, the
-59-
critical question should not have been
whether petitioners were the “intended
beneficiaries" of the state's contract
with the School, but rather whether the
intended beneficiaries of the First
Amendment, namely the students, their
parents and the community, would have been
better served by recognizing the right of
teachers to speak out as petitioners did
here.
CONCLUSION
As this Court has recognized, the
question presented in this case is an un-
settled one. It is also a question of
considerable importance in federal law.
The court of appeals failed to recognize
the novelty of the question herein, failed
to apply a suitable analysis, and reached
a result that conflicts, in principle,
with decisions of other courts of appeal
-60-
and with a decision in a virtually
identical case by a federal district
court. For all these reasons, and because
this Court's guidance is needed to assist
lower federal courts in their historic
task of protecting core First Amendment
values in the public education of the
nation's school children, this petition
for writ of certiorari should be granted.
Respectfully submitted,
Zachary R. Karol
S. Elaine Renfro
Richard J. Yurko
Bingham, Dana & Gould
100 Federal Street
Boston, MA 02110
Alan Jay Rom
Lawyers' Committee
for Civil Rights
Under Law
Boston Bar Associa-
tion
294 Washington Street
Suite 506
Boston, MA 02108
-61-
John Reinstein
Civil Liberties Union
of Massachusetts
Foundation, Inc.
47 Winter Street,
6th Floor
Boston, MA 02108
A-1
United States Court of Appeals
oi For the on Eo Ap
No. 80-1328
SHEILA RENDELL-BAKER,
PLAINTIFF, APPELLANT,
v.
SANDRA KOHN, ET AL.,
DEFENDANTS, APPELLEES.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Anprew A. Carrney, U.S. District Judge]
No. 80-1451
WAYNE KLUG, er a.,
PLAINTIFFS, APPELLEES,
v.
NEW PERSPECTIVES SCHOOL, INC., er Au.,
DEFENDANTS, APPELLANTS.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT-OF MASSACHUSETTS
{Hon. A. Davip Mazzone, U.S. District Judge]
Before Corrin, Chief Judge,
’ CampsELt and Bownss, Circuit Judges.
Robert J. Doyle, with whom Doyle, Playter, Novick & Berkin was
on brief, for Sheila Rendell-Baker.
Matthew H. Feinberg, with whom Mary Catherine Leonard, and
Kassler, Feinberg & Feuer were on brief, for the New Perspectives
School, Inc., et al.
Betty E. Waxman, Assistant Attorney General, Government
Bureau, Department of the Attorney General, with whom Francis
x. ge Attorney General, was on brief, for Francis X. Bellotti,
et al.
Kurt M. Pressman, with whom Goldstein & Pressman was on
brief, for Wayne Klug, et al.
February 12, 1981
Campse., Circuit Judge. These two consolidated appeals
from differing judgments in the district court involve claims
brought under 42 U.S.C. § 1983 by former staff members 0%
the New Perspectives School, Inc. Plaintiffs contend they were
discharged because of exercise of their first amendment rights
and without due process. The only question now before us is
whether, in discharging plaintiffs, the defendants acted
“under color of any statute, ordinance, regulation, custom or
usage, of any state.”
I.
The decisions under review both occurred without the tak-
ing of any evidence. In Rendell-Baker, summary judgment for
defendants was entered on the basis of the pleadings, exhibits
appended to the complaint, answers to interrogatories, and af-
fidavits submitted in support of and in opposition to defen-
dants’ motion for summary judgment. These documents com-
prise the record in that case. In Klug, the court denied a mo-
tion to dismiss for failure to state a claim on which relief may
be granted, taking the facts alleged in the complaint and sup-
ported by the appended exhibits in the light most favorable to
the plaintiffs. Strictly speaking, the record in Klug consists on-
ly of the complaint, and that case presents only the question
whether the district court erred in holding that it did not ap-
pear “beyond doubt that the plaintiff[s] can prove no set of
facts in support of [their] claim which would entitle [them] to
relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Walker
Process Equipment v. Food Machinery, 382 U.S. 172 (1965).
Appellees in Klug have, however, invited us to consider the
record in Rendell-Baker along with their complaint. Given
this invitation, and the fact that the additional information in
the Rendell-Baker proceeding tends, if anything, to support
A-3
rather than to weaken their claim of state action, we feel free
to draw on the records of both cases in describing the school
and its relationship to the state, as we ultimately rule against
plaintiffs on this critical issue.
a. The New Perspectives School
The New Perspectives School is a small, non-profit school
which offers a high school program to students who have had
difficulty completing an ordinary high school. The school is
organized as a non-profit corporation under the laws of
Massachusetts and is located on privately owned property in
the Town of Brookline, Massachusetts. The school is operated
by a Board of Directors, no member of which is a government
official or is chosen by any government official or governmen-
tal body. The record is silent as to the history of the school; we
do not know anything about its age, founding or original
sources of funding.' The school serves approximately 50
students, all on a tuition-free basis. Virtually all the students
have drug, alcohol, or behavioral problems, or have other
special needs, and most are referred to the school by the Town
_of Brookline or the City of Boston under Chapter 766 of the:
Massachusetts Acts of 1972, or by the Drug Rehabilitation
Division of the Massachusetts Department of Mental Health,*
' At oral argument, counsel for the school indicated that the
school was set up initially with private funds but has become in-
ey dependent upon public funds as they have become
available. .
* Chapter 766, Mass. G.L. c. 71B, § 3, provides that each school
committee is required to identify students with special needs and to
propose and arrange for an educational program suitable for each
such child. Parents re Mage the school committee's placement
school program, unless it is determined
that the weap dF ag omer ina oe eee will seriously en-
tantially disrupt the pro-
gram. If, however, the ts reject the school committee's place-
mit the matter to the state commission on special educa-
tion, unless, of course, they are to themselves bear the ex-
A-4
As of July 1978, when the school answered Ms. Rendell-
Baker's interrogatories, all 50 students were referred there by
one or more of these governmental bodies. We were informed
at oral argument that students could also come to the school
through private referral sources or on their own initiative.
According to the complaint in Klug, the school is authorized to
issue high school diplomas certified by the Brookline School
Committee.
New Perspectives Schoo] has received funds, in varying
amounts over the years of its operation, from numerous govern-
mental agencies. In answer to an interrogatory the school in-
dicated the following funding sources: Chapter 766;? Town of
Brookline; Massachusetts Department of Mental Health;
Department of Youth Services; Massachusetts Division of
Family and Children’s Services; Office for Children; Law En-
forcement Assistance Administration (LEAA);‘ Private Con-
tributors and Foundations. For the fiscal year 1975-76, funds
from the various governmental sources accounted for approx-
imately 91 percent of the school’s budget, while private dona-
tions accounted for 9 percent. For 1976-77, the figures were ap-
proximately 99 percent and 1 percent.’ We have no figures
pense of their chosen program. The district court's memorandum in
case No. 80-1451 indicates that the Town of Brookline does not itself
maintain facilities for special needs students, but we have found
nothing in the record to support that staternent.
® We are not aware of any funding agency called “Chapter 766.”
Our reading of that statute, Mass. G.L. c. 71B, §§ 3, 4, suggests that
responsibility for the costs of special education rests on the school
committees of each city, town and region. We therefore interpret
pay vs pia may maga. padre emma eine wey.
to funds received from cpeny shed oe 9 epee
students placed with the school in fulfillment of the requirements of
that statute.
* We interpret this reference to LEAA as indicating funds granted
to the school by the Massachusetts Committee on Criminal Justice,
roa nization which disburses federal funds received by the state
* These percentages are approximate, based on rounded off
for other years, but the school does not suggest that these two
years were unrepresentative.
In order to be eligible for these forms of public funding, the
school has been required to conform to various governmental
regulations. To receive placements, and funding, under
Chapter 766, a school must be approved by the Massachusetts
Department of Education.* The Department has issued a
33-page set of “Guidelines for the Approval of the Day Educa-
tional Component in Private Schools under Chapter 766.”
These guidelines relate to a wide variety of aspects of a school's
operation, including financial recordkeeping, student
discipline, staff training, use of volunteers, medical examina-
tions for students, parent involvement, health care, subjects of
instruction, teacher-student ratio, qualifications of teachers,
evaluation of teachers, student records, confidentiality of
records, transportation, insurance, food and nutrition, food
preparation, toileting procedures, physical space and
facilities, and classroom equipment. The guidelines also re-
quire that the school carry out each elernent of the educational
plan specified for each child by the local school committee
under Mass. G.L. c. 71B, § 3. On personnel policies the
guidelines are less specific than they are on some other issues;
they require only that the school maintain written job descrip-
tions and a written policy on criteria and procedures for
proval of the department enter into an agreement with any
other school committee yy ong provide special education or,
subject to the consent of the parent or guardian affected
thereby and subject to constitutional limitations, may enter in-
to an with any public or private school, agency, or
insti to provide the necessary special education within
A-6
hiring, suspension and dismissal, procedures for handling staff
complaints, and provisions for vacations and other benefits.
The school is also bound by its agreement with the
Massachusetts Department of Mental Health, Drug
Rehabilitation Division. Under that contract, the school,
which is designated as “the Contractor,” is required to provide
counseling, educational and prevocational services for drug
dependent or drug abusing persons and to give priority to
clients referred by the Division. The contract provides for
reimbursement of expenses specified in an attached schedule.
The contractor is required to abide by certain general re-
quirements regarding such subjects as equal employment and
equal service, respect for the human rights of the persons
served (i.e., with regard to research on human subjects), and
avoidance of conflicts of interest. The contract makes no men-
tion of personnel policies or rights of staff members.
The school’s contract with the City of Boston subjects it to
additional regulation. That contract states as its purpose com-
pliance with the City’s obligations under Chapter 71B through
“the furnishing of special educational services by private
facilities.” Under the contract, the school must carry out the
educational plan devised by the Boston School Committee for
each Boston student placed with the school. The school must
submit periodic reports on its services, and it is subject to in-
spection at any time during normal business hours. Pupil
records must be kept confidential, and the school's employees
are subject to the state conflict of interest law, Mass. G.L.
c.268A. Except Tor this latter provision, the school “shall have
no capacity to ... incur any liability on the part of the city.
The Facility, its agents or employees shall not have the status
or pension rights of a city employee ....” The contract also
provides that the school, and not the City, shall bear liability
for any injuries to students or employees and for any claims
“arising from any act or omission of the Facility, its agents or
employees ...." The school’s answers to interrogatories in-
A-7
dicated that it is subject to additional regulations by the
Department of Youth Services and by the Brookline School
Committee, but the record does not include details of these
regulations,
In May 1975, the school, through the Town of Brookline,’
submitted a grant proposal to the Massachusetts Committee on
Criminal Justice, a state agency which distributes funds
received from the federal Law Enforcement Assistance Ad-
ministration, The proposal was for a vocational program to
provide students and recent gradi ates with vocational
counseling, training in job skills, and placement in jobs. The
grant application includes a statement that the applicant
would comply with a set of general conditions relating to the
use of the funds and to the sources of other funds for the proj-
ect, Only one of these conditions makes any mention of staff or
personnel; that one provides that “The staff and/or consultant
competencies and resources necessary to assure successful con-
duct of the project will be provided. Prior approval of the
Committee is required for staff hiring and salary increases of
any kind, and for engaging consultants in accordance with
OMB Circular A-102 and Federal Procurement Manual M
1700.6." The proposal describes in detail the vocational
7 The grant application, submitted as an exhibit by Ms. Rendell-
Baker, lists the applicant as the Town of Brookline, with the New
Perspectives School listed as the implementing agency. The grant
was awarded the Committee to the Town for the school.
Brookline provided 5 percent gm beer while the state
vided an additional 5 percent. In a “Field Monitoring I ¥
report dated February 25, 1977, a grant manager of the Committee
that “Although the grant is carried out by New ves
School, Inc., the employees of the grant are Town
employees, and therefore no contract exists between Brookline and
New Perspectives.” At oral argument in this court, however, counsel
for Ms. Rendell-Baker indicated in response to a question as to why
the Town was not named as a defendant, that she was not aware of
the involvement of the Town of Brookline until discovery for this ac-
tion was conducted on the state defendants.
* Defendant Highgas states, in his affidavit in su of defen-
dants’ motion for summary judgment in Rendell- , that the
A-8
program, which apparently was already in operation at the
time of the grant application, and provides a job description
for the vocational counselor. The grant was approved for the
. year 1976 and renewed for 1977.
b. Discharge of Ms. Rendell-Baker
Sheila Rendell-Baker, who had been serving as a volunteer,
was hired as the vocational counselor funded by the grant. Ms.
Rendell-Baker held that position until she was discharged on
January 3, 1977. Her account of the discharge, as alleged in
her complaint, is as follows: In December 1976, a controversy
arose between a group of students and the school’s director,
Ms. Sandra H. Kohn, related to the responsibilities of a
student-staff council in the hiring of staff. The students
presented a petition at a meeting of the Board of Directors.
Ms. Rendell-Baker voiced support for their position, and Ms.
Kohn voiced opposition. On January 3, 1977, without prior
notice, Ms. Kohn requested that Ms. Rendell-Baker resign.
When Ms. Rendell-Baker refused to resign, Ms. Kohn
discharged her, without citing any specific cause or allowing
her any opportunity to respond to allegations against her.
After her discharge, Ms. Rendell-Baker, through her at-
torney, contacted the-school and demanded either reinstate-
ment with back pay or a hearing, on the ground that she had
been discharged for exercise of her first amendment rights and
without due process. After an exchange of letters, which Ms.
Committee's prior approval of hiring consisted of reviewing resumes
submitted by the school to ensure that applicants’ qualifications met
the requirements established by the school in its proposal, and that
the Committee did not interview applicants or exercise paher trong A
tive jud t in the hiring process. In this regard, cite
LEAA Circular A-87, which provides in part:
“Each grantee or contractor organization, in recognition of
its own unique combination of staff facilities and
will have the primary ey for employing whatever
form or organization mana t techniques may be
necessary to assure proper and efficient administration.”
A-9
Rendell-Baker submitted as affidavits, the school agreed to ap-
ply retroactively a newly adopted personnel policy, which
provided for involuntary termination for specified causes, sub-
ject to review by a three-member grievance committee. The
school’s president appointed a grievance committee, but Ms.
Rendell-Baker objected to its composition and demanded a
formal hearing before a mutually agreeable committee. The
record does not reflect any further action by the school on the
matter.
On December 13, 1976, the school informed the Committee
on Criminal Justice by letter that Ms. Rendell-Baker had been
terminated, effective January 14, 1977, and that the school
had chosen a candidate to fill the position. On January 17, Ms.
Rendeli-Baker’s attorney sent to the Committee a copy of his
letter to the school protesting her discharge. A representative
of the Committee informed the school, in a letter dated
February 23, that “While the Committee makes no comment
on the matter, you are advised that no candidate to fill the
subject position will be approved until such time as you pro-
vide me with written justification of your action, specifically
citing any rules and regulations under which the action was
taken.” The school responded with an account of its actions,°
and the Committee answered, on March 29, indicating that it
was satisfied."° The Committee ‘then informed Ms. Rendell-
* The school’s response occurred in two ate letters. The
—— answered the first with the ee ee
explain your actions in great detail, you to
af : Un senate Ripar ths Giaiiten Gus sentbed: whether or aot
you to any established criteria or ure, and what kind
of notice was given to Ms. Rendell-Baker.” The school’s second letter
apparent! satisfied the Committee.
© This from the Committee included the following:
“You are advised, however, that if you move to fill the vacant
a a funds, you will not have
money available to meet a successful claim for back pay
Ms. Rendell-Baker. Payment of such a claim would be
able to the extent that the salary remains unexpended.
A-10
Baker's attorney, in response to his request that it hold a hear-
ing, that:
“The Committee is not in a position to demand that a
hearing be held or to impose sanctions against New
Perspectives School, Inc. for its failure to hold such a
hearing. The Committee can, however, hold Ms. Kohn to
her assurances before approving a new hire to fill Ms.
- Rendell-Baker’s position.”"'
Ms. Rendell-Baker brought this suit in July 1977."* Upon
completion of discovery, defendants Bellotti and Highgas
moved for summary judgment on the ground that Ms.
Rendell-Baker’s dismissal had not occurred “under color of
state law.” Alternatively, they sought dismissal of the action as
to themselves. Ms. Rendell-Baker submitted a memorandum
opposing the motion, but she neither contested nor conceded
that no material issues of fact remained on the question of state
action. By an order dated April 16, 1980, the district court
granted both motions.'* Ms. Rendell-Baker brought appeal
No. 80-1328.
LEAA funds may not be used to pay any other form of
damages or any fines or ties that might be levied against
the New Perspectives School, Inc.”
"! The reference to “assurances” appears to indicate Ms. Kohn’s
statement, in her letter to the Committee, that the school’s personnel
would be applied retroactively so that the matter could be
by a grievance committee.
‘® Named as defendants were the school, the members of its Board
of Directors, including Ms. Kohn, both individually and in their of-'
ficial capacities, Francis X. Bellotti as chairman of the
Massachusetts Committee on Criminal Justice, Robert J. Kane,
former Executive Director of the Committee, and certain federal of-
ficials in their capacities as officials of LEAA. William Highgas, cur-
rent executive director of the Committee, vas later substituted for
his , and the federal defendants were dismissed by order
of the district court on Apri! 12, 1980.
9 The order terminating the action is phrased as a dismissal,
although it occurred in response to a motion for summary judgment.
A-1l1
c. Discharge of the plaintiffs in case No. 80-1451
Case No. 80-1451 arises out of a later series of disturbances
at the school. According to the complaint, during the 1977-78
school year, the school experienced a considerable amount of
dissension among both faculty and students. Some members of
the faculty considered the school’s difficulties attributable to
inadequate management by the Director, Sandra Kohn; in
May 1978 the plaintiffs wrote a letter to the school’s Board of
Directors urging it to discharge Ms. Kohn. The Board respond-
ed by affirming its confidence in Ms. Kohn. On June 5, 1978,
students of the school picketed the home of James Schlesinger,
president of the school’s Board of Directors, to express opposi-
tion to Ms. Kohn’s directorship. Ms. Kohn directed the staff to
tell the students that further picketing would cause their
suspension, The staff did so, but the plaintiffs later informed
her that an attorney had advised them that the prohibition on
student picketing was unconstitutional. Sometime during this
period, the Brookline Chronicle carried an article about the
disturbances at the school. On June 15, 1978, a letter to the
editor appeared in the Chronicle in which the plaintiffs
refuted some statements in that article and stated their belief
that the prohibition on picketing was unconstitutional. That
same day, the plaintiffs informed Schlesinger that they were
forming a labor organization. On June 16, Ms. Kohn dis-
charged four of the plaintiffs. A fifth, Dawn Fonseca, had
previously resigned but later offered to withdraw her resigna-
tion. Mr. Schlesinger declined the offer and accepted her
resignation on June 9.
The five plaintiffs brought this suit in December 1978, nam-
ing as defendants the New Perspectives School and each of its
directors, both individually and in their official capacity. The
school moved to dismiss on the ground that it had not acted
“under color of state law.” The district court denied the mo-
‘tion but certified its order for interlocutory appeal under 28
U.S.C. § 1292(b). We granted leave to appeal and con-
solidated the two cases.
A-12
Il.
Section 1983 of 42 U.S.C. provides for legal liability in favor
of an injured party against,
“Every person who, under color of any statute, or-
dinance, regulation, custom or usage, of any State or Ter-
ritory, 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 im-
munities secured by the Constitution and laws.” 42
U.S.C. § 1983.
In the Civil Rights Cases, 109 U.S. 3, 11 (1883), the Supreme
Court declared, “It is state action of a particular character
that is prohibited. Individual invasion of individual rights is
not the subject matter of the [fourteenth] amendment.” The
Court reiterated this principle in Shelley v. Kraemer, 334 U.S.
1, 13 (1947), when it stated that “the action prohibited .. . is
only such action as may fairly be said to be that of the states.
[The fourteenth] amendment erects no shield against merely
private conduct, however discriminatory or wrongful.” The
question before us, therefore, is whether the action of the New
Perspectives School in discharging the plaintiffs “may fairly be
said to be that of the State.”
Plaintiffs in the two eases argue, citing Burton v. Wilm-
ington Parking Authority, 365 U.S. 716 (1961), that the New
Perspectives School is “sufficiently intertwined with the state
to imbue its actions with the color of state law” — that is, that
the school is in reality a state institution, so that any action by
it is action of the state. Ms. Rendell-Baker makes the alter-
native argument that, because of the action of the Committee
on Criminal Justice in creating and funding her position and in
approving her discharge, the school’s action in regard to her is
attributable to the state even though other action by the school
would not be.
Defendants, citing Jackson v. Metropolitan Edison Co., 419
U.S. 345 (1974), and Moose Lodge No. 107 v. Irvis, 407 U.S.
A-13
163 (1972), argue that action of the school may be considered
state action only if the state participated directly in the par-
ticular action which is under attack, no matter how close the
overall relationship between the school and the state. Defend-
ants point out that the decision to discharge the plaintiffs was
made by privately appointed officials of the school, not by any
state officials, and that no state agency had undertaken to
regulate or control the school’s policies or procedures for hiring
and firing staff. They conclude, therefore, that plaintiffs’
discharges were not the action of the state.
In Burton, the Court found state action in the
discriminatory service policy of a privately operated
restaurant located in a publicly owned parking garage. There
was no question that the restaurant controlled its own affairs
and had reached on its own the decision to refuse service to
blacks. But the Court found that “The State has so far in-
sinuated itself into a position of interdependence with Eagle
{Coffee Shop] that it must be recognized as a joint participant
in the challenged activity.” Id., at 725. The Court emphasized
the restaurant's use of “an integral part” of a publicly owned
and maintained building which was by statute dedicated to
“public uses,” and the mutual benefits conferred upon both
the restaurant and the parking authority by their association.
The Court noted particularly that, to the extent that the
restaurant's discriminatory service policy contributed to its
profits, that policy contributed also to “the financial success of
a government agency.” Id., at 724. The Court warned,
however, that it did not intend “to fashion and apply a precise
formula for recognition of state responsibility,” and that “only
by sifting facts and weighing circumstances can the nonob-
vious involvement of the state in private conduct be attributed
its true significance.” Id., at 722.
In Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972), the
Court found no state action in the discriminatory service
policy of a private club which held a state liquor license, de-
A-14
spite the state regulation that went with the grant of a liquor
license. The Court expressed no disapproval of Burton, but
rather distinguished that case on the ground that the Moose
Lodge was not located on public property and did not have the
sort of “symbiotic relationship” with the state that the Eagle
Coffee Shop had had. Id., at 175. Finding no close overall
relationship, as in Burton, the Court considered whether the
regulations of the State Liquor Control Board in any way en-
couraged racial discrimination, and found that they did not.
The Supreme Court's most recent pronouncements occur in
Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974).
There the Court found no state action in the discontinuation of
service to a customer, without a hearing, by a privately owned
and operated, but heavily regulated, utility company. The
Court defined the inquiry as “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.” Id., at 351. To answer this
question, the court considered whether the state had directly
encouraged or approved the particular practice under
challenge, and found that it had not. But the Court did not
stop there. It again distinguished Burton, without expressing
any disapproval of that case, finding that extensive regulation
and performance of a public service “affected with a public in-
terest” were not enough to show the “symbiotic relationship”
found in that case." .
The plaintiffs in these cases argue that Burton and Jackson
establish two distinct tests, with the Jackson test applicable
where the Burton test fails, and that the Burton test is satisfied
here. Defendants respond that Jackson, together with Moose
Lodge, has implicitly overruled Burton, and has established as
determinative of state action a test of the direct connection
between the state and the challenged action. A panel of this
~~ The Jackson Court did not accept the assertion that the utility
held a state-granted monopoly. See p. 351, n.8.
A-15
court indicated in Downs v. Sawtelle, 574 F.2d 1, 8-9 (1978)
(finding state action in an involuntary sterilization at a com-
munity hospital run by a town-appointed Board of Directors),
that it did not believe that Burton has been overruled. It
stated, at 9:
“The essence of Burton which survives Jackson is that the
relationship between the state and the private institution
may be so intertwined that the state will be held responsi-
ble for conduct with which it had no direct connection.”
See also Holodnak v. Avco Corp., 514 F.2d 285 (2d Cir. 1975)
(applying Burton, after Jackson, to find the first amendment
applicable to an employee of a company doing defense-related
work on United States government property).
The more difficult problem, of course, is to decide what
constitutes such an “intertwined” relationship. Although we
do not presume to establish the “precise formula” which the
Supreme Court has declined to fix, we think it possible to iden-
tify certain factors which have tended to weigh heavily in
findings of such a relationship. In Burton itself, the strongest
factor seemed to be the use of public property, and particular-
ly its use in a way that excluded a segment of the public. We
relied heavily on the same factor in Fortin v. Darlington Little
League, 514 F.2d 344 (1975) (state action found in sex
discrimination by Little League, all of whose activities were
carried out on town field specially laid out for Little League
use). See also Holodnak v. Avco Corp., 514 F.2d 285; Gilmore
v. City of Montgomery, 417 U.S. 556 (1973) (city enjoined
from permitting exclusive use of public parks by segregated
private groups, where the city had previously been ordered to
desegregate the public parks).
Downs v. Sawtelle, 574 F.2d 1, involved public property
only in the sense that the Town had a right to receive the
hospital’s profits and its assets upon dissolution. The more
significant factor there, however, was that the Town Board of
Selectmen appointed the hospital's entire Board of Directors.
A-16
That factor made the case an example of a situation where
“state involvement with a private entity .. . is ‘so dominant as
to afford a basis for a contention that the state is merely utiliz-
ing private trustees to administer a state activity." " Braden v.
University of Pittsburgh, 552 F.2d 948, 974 (3d Cir. 1977),
Garth, J., concurring, quoting Powe v. Miles, 407 F.2d 73, 81
(2d Cir. 1968). In such a situation, every decision made by the
nominally private entity may fairly be attributed to the state,
since the decision-makers derive their authority from the state.
In Powe v. Miles, supra, and Braden v. University of Pitts-
burgh, supra, the courts relied on expressions of intent by the
states to treat a disputed entity as arms of the state.'® In each
of those cases, the state legislature had passed a statute in-
dicating the nature of the state's relationship to the university
involved. In the Pittsburgh case, the statute specifically
declared that one university to be state-related, and it changed
the school’s name to indicate the state’s role. In Powe v. Miles,
New York statutes designated the state contract colleges as in-
tegral parts of the state university, and referred to the private
university which housed the contract college in question as
“the representative of the state university trustees.” Jd., at 83.
These cases indicate that where a state expresses its own
understanding that an institution is under its control and sub-
ject to its constitutional obligations; these expressions may be
given great weight.
Finally, should a public institution be placed in private
hands with the actual purpose of evading constitutional re-
quirements, the courts may look beyond the formal structure
of the institution to find other indicia of state involvement.
See, e.g., Evans v. Newton, 382 U.S. 296 (1966) (appointment
of private trustees to manage a previously public park, the use
of which was limited to whites by the will of the donor, found
* Both these cases also involved some use of public property and
some state representation on the schools’ boards of directors.
A-17
insufficient to divest the park of its public character); Gilmore
v. City of Montgomery, 417 U.S. 556.
Ill.
' We have carefully considered the facts of this case, and
although we note a considerable degree of cooperation be-
tween the state and the school, we are not persuaded that any
of the particular factors we have discussed applies to the New
Perspectives School, or that any other factors justify a finding
that the challenged action occurred “under color of state law.”
Plaintiffs concede that the school does not conduct its activities
on public property or within public facilities, as in Burton and
Fortin, supra, and there is no suggestion of a subterfuge to
avoid constitutional obligations through creation of a sham
private entity as in Evans and Gilmore. To be sure, we are told
the Town of Brookline permits the school to issue high school
diplomas certified by its school committee. Arguably this
amounts to an expression of intent by the Town comparable to
that of the governmental bodies in Braden and Powe, to treat
the school as a public institution.'* The state’s other pro-
nouncements, however, particularly the references to private
schools in Mass. G.L. c.71B, § 4, and in the Department of
Education's guidelines, and the references to the school as a
contractor in the Department of Mental Health Agreement
and the City of Boston contract, all indicate that the state does
not regard the school as a public institution. See also note 9,
supra, regarding the LEAA policy, which is binding on the
state’s Committee on Criminal Justice. These indications that
the state regards the school as private outweigh any contrary
inference from Brookline’s certification of the school’s
a anne ee eae Sate Senet Pe Selene Sanat ase Oe
those received by graduates of Brookline High School, or
whether Brookline merely certifies in some manner the diplomas
issued to Brookline students placed under Chapter 766 in all private
A-18
Plaintiffs would have us focus on the state’s purported
dominance in the affairs of the school, to bring the case within
our holding in Downs v. Sawtelle. They rely particularly on
four aspects of the relationship between the state and the
school: (1) almost complete state funding; (2) extensive regula-
tion; (3) the school’s performance of the “public function” of
education, particularly special education required of local
communities by state law; and (4) mutual benefits which the
school and the state derive from their relationship.
The school’s funcs do, in fact, derive almost completely
from governmental sources.'’ This, in our view, is the
strongest factor indicating state action. We have, as have other
courts, indicated on past occasions that lesser contributions of
state funding are not enough to demonstrate state action in all
aspects of the operations of an institution. Cannon v. Universi-
ty of Chicago, 559 F.2d 1063 (7th Cir. 1976) (undetermined
amount of state funding of medical school did not show state
action in the school’s admissions policies); Berrios v. Inter-
American University, 535 F.2d 1330 (Ist Cir. 1976) (Puerto
Rico University’s suspension of students was not state action,
despite an undetermined amount of public funding and some
regulation by the Commonwealth's accrediting body). See also
McQueen v. Drucker, 438 F.2d 781, 784 {ist Cir. 1971)
(“Mere receipt of financial subsidy and subjection to some
regulation are the conditions of much of our societal life.”)
This school’s virtual dependence on state financial support
goes well beyond anything we have considered before. Since
” Defendants argue that we should not count in this calculation
funds originating with the federal government. Since the amount of
those funds is too small to affect significantly the school's overall
Fa any ow aye aah on eam alr 7> hey Sed gchar
al funds. We note, micas Sb eg the oe were fun-
neled through a state agency w appears to considerable
discretion in making grant awards. The exercise of such discretion
is doubtless a factor to be weighed in favor of state action, even if the
funds themselves are federal in origin.
A-19
state funds support every aspect of the school’s operation,
everything the school does, it can be argued, is made possible
by the state. And the state could, if it chose to do so, veto any
action of the school it found objectionable by threatening to
withdraw its financial support. But the school’s dependence
on state funds, in itself, demonstrates only that the state has
the potential to control the school’s operations, not that it ac-
tually does so. As a practical matter, the state has the same la-
tent power in relation to any contractor whose primary
customer is the state.'* Indeed the state’s power to control any
nominally private institution is limited only by the constitu-
tional boundaries of the police power, even where the state
does not provide funding. In practice, of course, the state’s ex-
ercise of its power to control an institution is likely to be
greater where it assumes the burden of financial support; for
that reason, state funding may be significant evidence of state
control. But to find that an otherwise privately operated in-
stitution is so dominated by the state that all its actions occur
“under color of state law,” we must find that the state actually
does control the institution, not just that it could do so. In the
case of a non-profit organization, the directors’ fiduciary duty
is to further the causes for which the entity was chartered,
regardless of the sources of its funding. For example, a school
for the deaf or the blind, managed by an all-private board,
does not surrender its rights to pursue independent policies
merely because the students are on state-funded scholarships.
Even near-complete governmental funding does not turn a
private charitable and educational institution into a public en-
tity so long as the private institution remains free, in fact, to
control its. vn affairs.
'® There are, for example, a considerable number of businesses,
such as manufacturers of defense-related equipment, and some
research and consulting firms whose clientele consists mainly or en-
tirely of governmental agencies.
A-20
Plaintiffs would have us infer state domination from the
regulations to which the school is subject. The school is
regulated by a number of state and local agencies, and some of
these regulations are very detailed. But we are not persuaded
that the school’s “freedom of decision-making has . . . been cir-
cumscribed substantially more than that generally accorded
an independent contractor.” McQueen v. Drucker, 438 F.2d
at 784-85. The degree of state regulation here is not greater
than that exercised over the utility in Jackson v. Metropolitan
Edison, 419 U.S. 345. Each of the various kinds of regulations
to which the school is subject would apply as well to a private
institution which contracted with the state to educate one stu-
dent or to conduct one small program in return for a small
amount of funds. The school’s contractual obligations to the
Department of Mental Health and to the Committee on
Criminal Justice are similar to the obligations undertaken by
any grantee of government funds; they reseizble also the
obligation that a grantee of funds from a private foundation
might incur. The details are provided by the grantee itself in
its grant application; and the general conditions are just that
— they impose few constraints on the decision-making power
of the grantee’s management. The guidelines issued by the
Department of Edutation apply to any school at which a
locality seeks to place even a single child under chapter 766;
the Department appears to contemplate placement of some
children in schools whose other students are all privately fund-
ed. The Department's guidelines are particularly detailed as
they relate to the services to be provided to students, just as
any contract for services spells out in detail the services to be
performed. But aspects of the school’s operation which do not
relate directly to services to students are left to the discretion of
the school’s privately appointed management, just as other
government contractors are left free to manage their own af-
fairs so long as they provide the services for which they have
contracted. For purposes of this case, it is particularly impor-
A-21
tant that none of the state agencies involved has undertaken to
regulate the school’s personnel policies, except to require that
its policies be set forth in writing. The content of the school’s
personnel policies, including criteria and procedures for hiring
and firing, has been left to the discretion of the school’s
management.'®
Plaintiffs argue that the school performs a public function.”
They point out that education at the primary and secondary
levels, in contrast to higher education, has most often been a
public function in this country. Compare Krohn v. Harvard
Law School, 552 F.2d 21 (ist Cir. 1977) (no state action in
Harvard Law School admissions policies, despite public im-
portance of legal education); Lamb v. Rantoul, 56] F.2d 409
(1st Cir. 1977) (no state action in denial of tenure to a pro-
fessor at the Rhode Island School of Design, a college-level art
school); Berrios v. Inter-American University, 535 F.2d 1330.
But see Weise v. Syracuse University, 522 F.2d 397 (2d Cir.
1975) (state action found in discharge of instructor at Syracuse
University, a nominally private school receiving some public
funds). Plaintiffs further insist that Chapter 766 reflects the
state’s view that special education is a public responsibility, or
at least that the state considers it advisable to assume that
responsibility. But the fact-remains that there is a strong tra-
'® Defendants aver in an uncontested affidavit that the Commit-
tee on Criminal Justice reviewed hiring decisions only to ensure that
the chosen candidate met the school’s own criteria, and that the
Committee exercised no subjective judgment in hiring. See note 9,
supra. In any event, the Committee’s grant funded only one position
at the school.
® The “public function” concept seems to derive from Marsh v.
Alabama, 326 U.S. 501 (1946), in which the Supreme Court held
that first amendment rights of one distributing religious literature
applied to the privately owned streets of a company town. The
Court emphasized that the company had treated the streets as public
and had not restricted to them. Its holding therefore may im-
ply a kind of public easement based on pcs: 4
A-22
dition of private elementary and secondary education in this
country, and that special education is clearly not an exclusive-
ly public function. Indeed, it is only recently that public
school systems have assumed any responsibility for children
with special needs; until » few years ago such children were
routinely excluded from public schools. The fact that the state
has chosen to pertwrm a service, or to require its political sub-
divisions to do so, does not make that service an inherently
public function.
The “public function” concept is strongest, moreover, when
asserted by those for whose benefit the state has undertaken to
perform a service, or when the state has lent its coercive
powers to a private party. In this situation, for example, those
students of the New Perspectives School who were placed
there by their local school committee, particularly those who
are compelled to attend under the state’s compulsory educa-
tion laws, would have a stronger argument than do plaintiffs
that the school’s action towards them is taken “under color of”
state law, since the school derives its authority over them from
the state. See, e.g., McQueen v. Drucker, 438 F.2d 781, in
which we found state action in the eviction of tenants by the
private owner of a subsidized housing complex.*' The plain-
—.
*! These plaintiffs and other private school teachers are, of course,
fully Seng against discriminatory treatment by Title VII of the
Civil Rights Act of 1964, as well as by state employment discrimina-
tion gy ed rulin [maeenge in no = mney) pg
, v. Syracuse University, 20 at
date ation ctatndand Ger dlataie of Gesteninaiten than tor tite
process :laims because of “peculiar offensiveness” of excl some
citizer. from benefits for which all are taxed); Jackson v.
Foundation, pee F.2d 623, 635 = Cir. yo Beene which is
part private part governmental must be more y scrutin-
ized when claims of racial discrimination are made”); Wahba v.
— York University, 492 F.2d 96, = Aa Cir. lg wg be pa
erminaton depends in part on provision
Rights is alleged to have been violated).
A-23
tiffs in this suit, however, are not the intended beneficiaries of
the service for which the state has contracted with the school.
The school’s authority over its faculty derives from the con-
tractual relationship of employment, not from “state law.”
The school does not perform any public function toward
them, even if it may (although we do not now decide the issue)
perform such a function toward some or all of its students.
Nor are we persuaded by the argument that the relationship
between the school and the state is mutually beneficial, or
“symbiotic,” as was found to be the case in Burton.** Any con-
tractual relationship is beneficial to both contracting parties;
otherwise they would not enter into it. As we read Burton, the
importance of the mutually beneficial relationship was that
the state benefited from the particular conduct .wnder attack
— the racial discrimination by the restaurant — at least to the
extent that that conduct increased the restaurant's business
and bolstered its ability to pay rent to the state. We see no such
benefit to the state from the conduct under attack here.
The school’s funding, regulation, and function all show a
relationship of close cooperation with the state. But these fac-
tors, together as well as separately, do not demonstrate that
the state has so dominated the school as to make all the school’s
actions, and particularly~those related to personnel, at-
tributable to the state. The school’s management by a private
** We note that the phrase “symbiotic relationship” does not ap-
pear in Burton at all. That phrase originated with the Court's
discussion of Burton in its opinion in Moose Lodge, 407 U.S. at 175,
and was repeated in the same context in Jackson, 419 U.S. at 357.
® We have ave found only two cases at the circuit court level involv-
g the combination of factors present here. In Ginn v. Mathews,
se F.2d 477 (1976), the Ninth Circuit found the fifth amendment
applicable to the discharge of employees by a federally and state-
funded and regulated Head Start program. There, however, hiring
ee tena. Naor ob gnethpve on er phan wal deyionar 3e0 the com-
position of which was controlled in part by the ations. Com-
pare Kelley v. Action for Boston Community ment, 419 F.
et 511 (D. Mass. 1976) (finding no governmental action in the
A-24
Board of Directors on which the state is not represented, and
the broad range of independent discretion which these direc-
tors appear to exercise, particularly in personnel matters, belie
the notion of state domination.
The five plaintiffs in case No. 80-1451 rely solely on the
overall relationship between the school and the state, and,
unlike Ms. Rendell-Baker in case No. 80-1328, infra, do not
claim any direct involvement of the state in their discharge.
For the above reasons, we hold that the district court erred in
case No. 80-1451 in denyiny the school defendants’ motion to
dismiss. Ms. Rendell-Baker does claim state action even in the
absence of an overall state dominance of the school. Her case
therefore requires further discussion.
IV.
Ms. Rendell-Baker’s arguments are essentially two: first,
that because her position was created and funded through the
grant of a state agency, she was a public employee even if the
other staff members were not; and second, that the Commit-
tee directly reviewed and approved her discharge, as evi-
denced by its exchange of letters with the school. Ms. Rendell-
Baker's first argument fails to distinguish her from many other
employees of private organizations whose positions are funded
by grants from government agencies, foundations, and even
private corporations. It is common practice for universities,
schools, hospitals, and community organizations to seek and
obtain funding for specific positions through grants from these
various public and private sources. The individuals employed
are not treated as employees of the funding source; rather,
they are employees of the grantee. Nor does Ms. Rendell-Baker
discharge of a Head Start employee). In Hines v. Cenla Community
Action Committee, Inc., 474 F.2d 1052 (1973), the Fifth circuit
found no federal responsibility for the dismissal, by a privately ap-
pointed board of directors, of the executive director of a community
action agency which was funded and regulated by the Office of
Economic Opportunity.
A-25
suggest that she was ever treated, or ever considered herself,
an employee of anything but the New Perspectives School. She
was chosen for the position and supervised in it by the school’s
administration, and we have no reason to suspect that she ever
had any dealings with the Committee on Criminal Justice or
the Town of Brookline until after her discharge.*
Ms. Rendell-Baker’s second argument carries somewhat
more weight. The excliange of letters, which we have sum-
marized in our statement of facts, between the school and the
Committee suggests that at least the one Committee official
who wrote the letters viewed himself as having some authority
to oversee the manner in which the school discharged an
employee funded by the grant. Moreover, that official
ultimately did determine that the school’s procedure met some
undefined standard for approval by the Committee. But the
Committee's letters do not cite any authority for this oversight,
and we have found none in the school’s contract with the
Co:nmittee. The contract provides that the Committee must
approve hiring; it makes no provision for approval of firing,
nor does it require that any particular personnel policies be
observed. If, as defendants’ affidavit asserts (and as Ms.
Rendell-Baker has not contested), the Committee's approval of
hiring consisted only of reviewing the qualifications of the
school’s chosen candidate, then the Committee had authority
to deny its approval for the hiring of a replacement only if it
found the candidate's qualifications inadequate, and for no
™ As we indicated in footnote 8, supra, a grant manager of the
Committee did report that Ms. Rendell-Baker was considered an
employee of the Town of Brookline. But since the grant manager did
not elaborate on this observation or cite any evidence for it, and
since Ms. Rendell-Baker obviously did not consider herself an
cieahiares sk Gx Tatas Ge ettiedh cibatltp tah dhe O08 unt even
know of the Town's involvement in the funding arrangement until
Giscovery), the grant manager must have been mistaken.
A-26
other reason. Nothing in the contract suggests that the Com-
mittee is allowed to control the school’s personnel policies by
exercising its approval powers arbitrarily, as a form of
The district court's judgment in No. 80-1328 is affirmed.
The district court's order in No. 80-1451 is reversed, and the
matter remanded with directions that judgment be entered in
that case dismissing the complaint.
Adm. Offies, U.S. Courts — Blanchard Pron, inc., Boston, Man.
A-27
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
SHEILA RENDELL-BAKER,
Plaintiff,
Vv. CIVIL ACTION
NO. 77=+2236-C
SANDRA KOHN, et al.,
Defendants.
MEMORANDUM
April 16, 1980
CAFFREY, Ch. J.
In 1977 plaintiff, Sheila
Rendell-Baker filed this action alleging
that she had been discharged from her
position as vocational counselor at New
Perspectives School, Inc. in Brookline,
Massachusetts in violation of her rights
under the First, Fifth and Fourteenth
Amendments and 42 U.S.C. §1983. Plaintiff
invoked the jurisdiction of this court
pursuant to 28 U.S.C.A. §§ 1331, 1343,
1361 and 2202.
A-28
The complaint as amended names as
defendants, New Perspectives School, Inc.,
the members of that school's board of
directors both individually and in their
“their official capacities" (hereinafter
the school defendants), as well as Francis
X. Bellotti, Chairman of the Massachusetts
Committee on Criminal Justice (hereinafter
the Committee) and Robert J. Kane,
Executive Director of the Committee
(hereinafter the State defendants).
The matter is currently before the
court on a motion for summary judgment
filed by defendants Bellotti and Highgas.
In support of their motion the state
defendants argue that the court has no
Mr. Kane has since been replaced as
Executive Director by William Highgas, Jr. who is
now defending this action.
2 Although two federal defondants were named
in the original complaint, their motion to dismiss
was allowed by the Court in 1979.
A-29
subject matter jurisdiction over’ the
controversy because the plaintiff's
termination was not sufficiently imbued
with with state action to’ trigger
constitutional safeguards. They further
argue that even if the court does find
that the complained of actions were "under
color of state law", the State defendants
cannot be charged with responsibility for
the plaintiff's dismissal. Plaintiff
opposes the motion and the parties have
submitted affidavits to the court in
support of their respective positions.
It is assumed for purposes of this
motion that the Plaintiff was dismissed as
a result of a legitimate exercize of her
free speech and that her dismissal was not,
accompanied by the procedural safeguards
which would be required if the action were
attributable to the State. It is also
conceded that at all times pertinent to
A-30
the complaint, the School was subject to
extensive state regulation and was the
recipient of substantial public funding.
New Perspectives School, Inc. is
incorporated under the laws of the
Commonwealth of Massachusetts and operates
as an alternative high school for students
who have trouble functioning in a
traditional high school setting. It is
funded in large part by local, state and
federal sources and is subject to
extensive governmental regulation. At all
times pertinent to the complaint New
Perspectives School was the recipient of
funds from the Massachusetts Committee on
Criminal Justice and the position of the
plaintiff as vocational counselor was
funded by that particular source.
The Massachusetts Committee on
Criminal Justice was established pursuant
to Mass. Gen. Laws, ch.6, §156 and is
A-31
comprised of various State officials and
appointees. As one of its duties the
Committee accepts funds from the Law
Enforcement Assistance Administration
(hereinafter LEAA) and awards subgrants to
eligible applicants within the state.
Plaintiff argues that the
Commonwealth of Massachusetts is s0
thoroughly intertwined with the day to day
functions of the school as to warrant the
conclusion that any action taken by the
3
school is state action. Plaintiff
Spiaintife asserts that the state action
requirements may be satisfied even in the absence
of a nexus between the state and the challenged
activity. In so arguing she relies on Burton v.
Wilmington Parking Authority, 365 U.S. 715 (1961)
and the language of the Court of Appeals for the
First Circuit in Berrios v. Inter American
University, 535 F.2d 1330 (1976). This Court
accepts the correctness of the legal principles
enunciated by plaintiff especially in light of
Downs v. Sawtelle, 574 F.2d 1 (lst Cir. 1978)
cert. denied 439 U.S. 910 (1978). However, the
allegations of state involvement in the general
management of the school which appear in the
(footnote 3 cont'd on next page)
A-32
points to the substantial state funding
provided to the school and the extensive
state regulation to which the school is
subject. Plaintiff also maintains that
the school performs a traditionally public
function in that it provides its students
with a free education, provides a non
resident drug treatment program and
generally furthers the goals of the
State's criminal justice system.
Plaintiff further argues that the school
could not have terminated her employment
without the approval of the Committee.
The State defendants argue that the
School does not perform a traditionally
public function and that substantial state
(footnote cont'd from previous page)
complaint and in the additional materials
submitted for purposes of opposing this motion, do
not approach a level of involvement which would
suggest that a symbiotic relationship may have
existed between the school and the state. Further
discussion on that issue is therefore unwarranted.
A-33
funding and regulation alone do not
necessarily give rise to a finding of
state action. They maintain that there
must be direct state involvement with the
complained of activity. The State
defendants further argue that although the
Committee plays a role in the hiring® of
personnel, it has nothing to do with post
hiring personnel decisions. Thus, they
conclude, that there can be no direct
“applications to the Committee for the award
of a subgrant must provide the Committee with a
program description which contains the job
qualifications and responsibilities of staff hired
in the course of implementing the program. If a
subgrant application is approved, that program
description is incorporated into a _ standard
contract which also contains certain conditions
incident to funding. One such condition is that
the "[p]rior approval of the committee is required
for staff hiring. . ." Such approval usually
consists of a review whether the qualifications
stated therein are consistent with the
qualifications which were proposed by the
applicant (in this case New Perspectives School,
Inc.) and approved by the Committee. The
Committee does not conduct job interviews.
A-34
state involvement in the activity
complained of in this case.
"A cause of action under § 1983
requires that a state, not a private
party, act to deprive one of
constitutionally protected rights."
Berrios v. Inter American University,
supra at 1331. There are occasions
however when the actions of a private
party may be attributed to the state.
Burton v. Wilmington Parking Authority,
supra.
While the court agrees with the
defendants that New Perspectives School,
Inc. does wot perform a uniquely public
function, some further discussion is
necessary on the issue of whether the
state involvement here went beyond
substantial funding and extensive
regulation and extended to the complained
of activity itself.
A-35
Our inquiry must be, as the court
put in Jackson v. Metropolitan
Edison Co., 419 U.S. 345, 351, 95
S. Ct. 449, 453, 42 L.E. 2d 477
(1974) "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 be fairly
treated as that of the State
itself.
Lamb v. Rantoul, 561 F.2d 409 (lst Cir.
1977), Krohn v. Harvard Law School, 552
F.2d 21 (lst Cir. 1977).
Although the recipients of funding
are subject to the rules, regulations and
directives of the committee and although
the committee may impose special
conditions in a given case, there are no
regulations or conditions in the case at
bar which relate to the suspension or
termination of individuals employed by the
school. The Committee does play a role
however in the decision to hire personnel.
In a letter dated February 23, 1977 the
A-36
school was informed by the Committee's
General Counsel, Mr. Tobin:
While the Committee makes no
comment on the matter, [plaintiff's
termination], you are advised that
no candidate to fill the subject
position will be approved until
such time as you provide me with
written justification of your
action, specifically citing any
rules and regulations under which
the action was taken.
In two subsequent letters the school
outlined both its reasons for the decision
to termirate the plaintiff's employment
and the termination procedures which it
had followed. Although satisfied with the
School's outline, Mr. Tobin cautioned the
School as follows:
You are advised, however, that if
you move to fill the vacant
position and you choose to expend
funds, you will not have LEAA money
available to meet aie successful
claim for back pay by Ms.
Rendell-Baker. Payment of such a
Claim would be allowable to the
extent that the salary remains
unexpended. LEAA funds may not be
used to pay any other form of
damages or any fines or penalties
A-37
that might be levied against the
New Perspectives School, Inc.
I rule that the decision as_ to
whether or not the plaintiff's employment
should be terminated and the decision as
to whether or not she should be replaced
are two separate and distinct matters.
The former was a determination to be made
by the School alone. The Committee was
involved only with the latter. fThere is
no indication in the case at bar that the
power of New Perspectives School, Inc. to
terminate its employees was in any way
"circumscribed" by the Committee. See
McQueen v. Druker, 438 F.2d 781, 784-85
(lst Cir. 1971).
On the basis of the foregoing I rule
that there was no state action because
there was not a "sufficiently close nexus"
between the committee and plaintiff's
termination upon which this court may base
a ruling that the actions of the school
A-38
are properly attributable to the state for
purposes of federal jurisdiction.
The State defendants' motion should
be allowed. A fortiori the action should
be dismissed as to all remaining
defendants.
Order Accordingly.
nudes A. Caffrey
Andrew A. Caffrey, Ch. J.
A-39
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
SHEILA RENDELL<-BAKER,
Plaintiff,
Vv. CIVIL ACTION
NO. 77=2236-C
SANDRA KOHN, et al.,
Defendants.
ORDER
April 16, 1980
CAFFREY, Ch. J.
In accordance with memorandum filed
this date, it is ORDERED:
The action is dismissed against
defendants Highgas and Bellotti.
The action is dismissed to all
remaining defendants.
/s/Andrew A. Caffre
Andrew A. Caffrey, Ch. J.
A-40
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
WAYNE KLUG, et al,
Plaintiffs Civil Action
Vv. No. 78=-2402-MA
THE NEW PERSPECTIVES
SCHOOL, INC., et al,
Defendants
MEMORANDUM AND ORDER
Mazzone, D.J. April 7, 1980
The plaintiffs, five teachers at a
publicly funded private high school, claim
that they were wrongfully discharged with-
out due process for exercising their
protected right to freedom of speech, in
violation of the First, Fifth and Four-
teenth Amendments and 42 U.S.C. §1983.
They claim jurisdiction under 28 U.S.C.
$§1331 (federal question), 1343 (civil
rights) and 1361 (mandamus for federal of-
ficial). The case is before the Court on
the defendants' motion to dismiss. The
A-41
threshold jurisdictional question is
whether the defendants, the New Perspec-
tives School, its Staff Director and Board
of Directors, acted under color of state
law.? Because this question can be
answered only after carefully "'sifting
facts and weighing circumstances, '"
Lorentzen v. Boston College, 440 F. Supp.
464, 465 (D.Mass. 1977), aff'd. 577 F.2d
720, cert. denied, 440 U.S. 924 (1979)
Ithe free speech rights which plain-
tiffs claim have been violated are _ con-
sidered fundamental for purposes of equal
protection analysis and are subject to
strict judicial scrutiny in that’ context.
Massachusetts Board of Retirement v.
Murgia, 427 U.S. 307, 312 n. 3 (1976). We
therefore do not address the issue of
whether less offensive conduct would be a
less appropriate subject for our scrutiny,
Weise v. Syracuse University, 522 F.2d
397, 406 (2nd Cir. 1975), an approach
which has not been endorsed by this Cir-
cuit. Downs v. Sawtelle, 574 F.2d 1, 6 na.
5 (Ist Cir. 1978), cert. denied, 439 U.S.
910. Because fundamental rights are _ § in-
volved, whether the School is a "state
actor" is a threshold question. Id. at 6.
A-42
(quoting Burton v. Wilmington Parking
Authority, 365 U.S. 715, 722 (1961), the
facts are set forth in some detail and are
examined in the light most favorable to
plaintiffs. Conley v. Gibson, 355 U.S.
41, 45-46 (1957).
New Perspectives School is a non-
profit Massachusetts corporation. It
contracts with governmental agencies to
provide tuition-free education for about
fifty students who have had difficulty in
public high school. Most students have
drug-related problems or other special
needs. The School provides night classes,
extensive counseling services, and
vocational placement services. As Staff
Director, the defendant, Sandra Kohn, is
responsible for the day to day operation
of the School, including initial hiring
and discharge decisions. In practice,
A-43
Kohn sometimes discusses hiring decisions
with the staff. The Board of Directors
has the ultimate authority to make any
decisions affecting the school.
Some students drawn from the Town of
Brookline and the City of Boston receive
special educational services under Chapter
766 of the Massachusetts Acts of 1972
(Mass. Gen. Laws c. 71B). Others are
placed in the School by the Drug
Rehabilitation Division of the Massachu-
setts Department of Mental Health. The
School, which is located in Brookline, is
authorized to issue high school diplomas
which are certified by the Brookline
School Committee. The Town itself does
not maintain facilities to meet the needs
of Chapter 766 students. The School must
comply with certain town and state reg-
ulations concerning minimum curriculum
A-44
requirements, total credit requirements
and teacher certification requirements.
The curriculum of an institution which
accepts Chapter 766 referrals must "be
equivalent, insofar as the department [of
education] deems feasible, to the
curriculum for children of comparable age
and ability in the public schools." Mass.
Gen. Laws. c. 71B, §10. New Perspectives
is also subject to Chapter 766 guidelines
which establish minimum student-teacher
ratios, set policies for teachers' use of
physical restraint and isolation to dis-
cipline students, require teachers of
academic subjects to hold a bachelor's
degree (although teachers need not be
state-certified), and require that a con-
tracting school set forth its policies for
hiring and discharging personnel in writ-
ing. A local school committee, not the
A-45
contracting institution, determines what
services should be provided for each
student in a written plan.
The School is also regulated by the
terms of its contracts. The Department of
Mental Health requires the School to
comply with standards established for Drug
Treatment Facilities, to accept court
referrals, and to grant access to the
Department to review student and financial
records. The contract with the Boston
School Committee likewise gives the Com-
mittee the right to inspect the School.
If the Committee is dissatisfied with the
services, the School may replace them or
the Committee may obtain them elsewhere
and charge the School. The contract
specifies that agents of the School are
not "city employees" and that the School
A-46
must maintain its own workers' compensa-
tion insurance.
The School obtains 85% of its funds
directly or indirectly from the Common-
wealth, 8% from the federal government
(CCJ, LEAA) and 7% from private sources.
The Department of Mental Health each month
reimburses the School for a fixed amount
of expenses, incurred primarily for staff
salaries. The Boston School Committee
pays a weekly rate fixed by the
Commonwealth for each student referred by
it under Chapter 766.
It does not appear that the Common-
wealth or any of its subdivisions is
represented on the Board of Directors or
may otherwise control the internal opera-
tions of the School, except by withdrawing
students, funds or accreditation. The
Staff Director's hiring and firing deci-
sions are not subject to state or public
A-47
approval or review. The school has ex-
perimented with using a _ student-staff
council for self-government, without the
approval or participation of the Common-
wealth.
For more than a year before plain-
tiffs were discharged, New Perspectives
School had been plagued by discord among
staff and students, "manifested by the
resignation of over half the faculty...and
racial antagonism." Complaint 9720. On
May 22, 1978, the plaintiffs wrote to the
Board requesting Kohn's resignation. The
letter briefly described problems with
staff fragmentation, student drug abuse,
and poor morale. It charged that Kohn's
poor administration caused these problems
in five enumerated respects. The plair-
tiffs stated that they had discussed the
matter with her to no avail. The other
A-48
eight twachers and the assistant adminis-
trator supported Kohn. The following day,
the Board gave Kohn a vote of confidence.
On June 5, 1978, students picketed
the Brookline home of the defendant James
Schlesinger, president of the Board, to
protest conditions at the School and to
request Kohn's resignation. On June 6,
Kohn directed the staff to tell students
that Schlesinger had said chat’ the
picketing constituted a disturbance in his
neighborhood, that creating a disturbance
was against Board policy, and that stu-
dents who picketed would therefore be
suspended. The plaintiffs carried out her
request. That same day, the plaintiffs
also submitted to the Board a twenty-two
page joint affidavit detailing their
criticisms of Kohn and requesting her
removal. They did not then vent their
A-49
complaints about working conditions, but
addressed only problems which they at-
tributed to Kohn.
Kohn met with the plaintiffs on June
8. They informed her that two of them had
met with a lawyer, who apparently advised
them that the "no picket" order was
unconstitutional, and that they might
subject themselves to civil liability for
instructing students to follow the order.
Kohn later met individually with each
plaintiff, re-affirming the no-picket
order and instructing plaintiffs not to
tell the students they believed the order
was unconstitutional, lest she have to
take “appropriate action." Kohn felt that
because the student body was so unstable,
often coming from broken homes, it was
necessary for the staff to present a
united front and act as a group authority
A-50
figure, as well as to provide individual
role models.
On June 15, 1978, a letter from the
plaintiffs appeared in the Brookline
Chronicle, refuting statements of some
Board members which had appeared in a
previous article and stating the plain-
tiffs' belief that the no-picket order was
unconstitutional and that their own first
amendment rights had been violated. The
same day, they informed Schlesinger as
president of the Board that they were
forming a labor organization.
Kohn discharged four of the plain-
tiffs on June 16. The fifth plaintiff,
Dawn Fonesca, had submitted a letter of
resignation dated May 16, 1978. She
advised Schlesinger that she wanted to
withdraw it on June 8, but he accepted
her resignation on June 9. Kohn told the
A-51
plaintiffs they were discharged for
insubordination and disruption of the
School's program. No warnings had been
given, no hearing was held and no written
statement of the reasons for discharge was
made. Plaintiffs' personnel records
reflect the charges of insubordination.
The School could be considered a
state actor either on the theory that it
is a public institution or on the theory
that the nexus between the challenged
activity and the Commonwealth's involve-
ment is sufficiently close so that the
action of the School may be fairly treated
as that of the state itself. Krohn v.
Harvard Law School, 552 F.2d 21 (lst Cir.
1976); Jackson v. Metropolitan Edison Co.,
419 U.S. 345 (1974). That an entity per-
forms a public function does not elevate
A-52
all its activities to state action, al-
though public function is one factor to be
considered on the question of state
action. Id. at 351.
Cases in this Circuit have focused
primarily on the extent of state control
over the private party and the challenged
activity. Downs v. Sawtelle, 574 F.2d 1
(state action existed in physician's
sterilization of plaintiff where the en-
tire board of a hospital's directors was
initially appointed by the town, Medicare
funds provided 30% of its budget and it
was subject to "significant" governmental
regulation); see also, Krohn v. Harvard
Law School, 552 F.2d 21; Berrios v. Inter
American University, 535 F.2d 1330 (lst
Cir. 1976); Fortin v. Darlington Little
League, 514 F.2d 344 (lst Cir. 1975)(state
action found in "symbiosis" where Little
League used six of town's eight baseball
A-53
diamonds, though no state funding or con-
trol). The Ninth Circuit, in Ginn v.
Mathews, 533 F.2d 477 (1976), found state
action by a "private" school maintained
for Headstart students, relying on this
Circuit's McQueen v. Drucker, 438 F.2d 781
(lst Cir. 1971).
The New Perspectives School appears
to serve a primarily public function.
Although education is not a "uniquely"
public function, Lorentzen v. Boston
College, supra, 440 F. supp. at 465, New
Perspectives, unlike the college in
Lorentzen serves only students who are
entitled by law to receive a carefully
tailored high school education from the
Commonwealth.
We believe the rationale of McQueen
v. Drucker, supra, should be applied here.
A-54
The School performs a governmental func-
tion because it provides a high school
education, as required by and at the ex-
pense of the Commonwealth. While there
is no direct control by the state over the
private firm, and no control over the
challenged activity, the programs it of-
fers must comply with state regulations,
its staff must meet certain degree re-
quirements, and there is substantial state
oversight of its operation. Accordingly,
we are of the opinion that there is suf-
ficient involvement by the state to meet
the jurisdictional challenge under the
"public institution" approach.
We do not accept the defendants' con-
tention that plaintiffs have alleged no
deprivation of rights protected by the
Constitution or laws of the United States.
A-55
The motion to dismiss is denied.
SO ORDERED.
oe A. David Mazzone
United States District Judge
A-56
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
WAYNE KLUG, ET AL * EXHIBIT "B"
*
Vv. * No. 78-2402-MA
*
THE NEW PERSPECTIVES *
SCHOOL, INC., ET AL *
ORDER
IT IS ORDERED that this Court's Memo-
randum and Order, dated April 7, 1980,
which denies defendants' Motion «> Dis-
miss, shall be amended to inciude the
following statement:
Whether or not defendants
should be regarded as_ state
actors is a controlling question
of law in this case. While this
Court has found that there is
sufficient involvement with New
A-57
Perspectives School, Inc. by the
state to regard the defendants'
actions as state action, there
is substantial ground for dif-
ference of opinion on this
point. It is, therefore, this
Court's opinion that an immedi-
ate appeal from this inier-
locutory order may materially
advance the ultimate termination
of this litigation.
{s/ A. David Mazzone
A. David Mazzone
U. S. District Court
Judge
{sf Helen M. Costulo
Deputy Cler
Date: June 13, 1980
A-58
"MANDATE" (C.A. 77-+2236-C]
United States Court of Appeals
FOR THE FIRST CIRCUIT
No. 80-1328 [DOCKETED ]
SHEILA RENDELL~-BAKER,
Plaintiff, Appellant,
Vv.
SANDRA KOHN, ET AL.,
Defendants, Appellees.
FILED
IN CLERK'S OFFICE
MAR 5 4:25 PM ‘81
U.S. DISTRICT
COURT
DISTRICT OF
MASSACHUSETTS
JUDGMENT
Entered February 12, 1981
This cause came on to be heard on
appeal from the United States District
A-59
Court for the District of Massachusetts,
and was argued by counsel.
Upon consideration whereof, It is now
here ordered, adjudged and decreed as
follows: The judgment of the district
court is affirmed.
Costs in favor of appellee,
The New Perspective [sic]
School, Inc. are taxed at
$51.30.
Certified and issued as
informal mandate under
F.R.A.P. 41 on MAR 5 1981
s/ Dana H. Gallu
Cler
By the Court:
s/ Dana H. Gallu
Clerk
{cc: Messrs. Doyle, Feinberg and Pressman
and Ms. Waxman. ]
A-60
"MANDATE"
United States Court of Appeals
For the First Circuit
[FILED IN
CLERK'S OFFICE
MAR 11 10:58 AM
81
US COURT OF AP-
PEALS
FOR THE FIRST
CIRCUIT]
No. 80-1451
WAYNE KLUG, ET AL.,
Plaintiffs, Appellees,
Vv.
THE NEW PERSPECTIVES SCHOOL, INC., ET AL.,
Defendants, Appellants.
JUDGMENT
Entered February 12, 1981
This cause came on to be heard on
appeal from the United States District
Court for the District of Massachusetts,
and was argued by counsel.
A-61
Upon consideration whereof, It is now
here ordered, adjudged and decreed as
follows: The order of the district court
is vacated and the matter is remanded to
that court with directions that judgment
be entered in that case dismissing the
complaint.
Costs to appellants.
Costs in favor of appellants are
taxed at $455.60.
Certified and issued
as informal mandate
under F.R.A.P. 41 on
MAR 11 1981
{s/ Dana H. Gallup By the Court:
Clerk
{s/f Dana H. Gallup
Clerk
[cc: Messrs. Doyle, Feinberg and Pressman
and Ms. Waxman. ]
A-62
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
BNA
Date Filed: 5-6-81
Date Received: 5-12
SUZANNE ROSS, 80 Civ. 3422 (RWS )
Plaintiff, OPINION
-against-
NATHAN ALLEN [correct
name NIATHAN ALLEN],
Executive Director of
Henry Street Settle-
ment, WILLIAM SPILLER,
Director of Henry
Street School, and
ROBERT WOLF, Clinical
Director of Henry
Street School,
Defendants.
APPEARANCES :
NEW YORK CIVIL LIBERTIES UNION
Attorneys for Plaintiff
84 Fifth Avenue
New York, New York 10011
By: STEVEN R. SHAPIRO, ESQ.
ROBERT M. LEVY, ESQ.
Of Counsel
DOUGLAS F. EATON, ESQ.
Attorney for Defendants
598 Madison Avenue
New York, New York 10022
A-63
Sweet, D.J.
Plaintiff Suzanne Ross ("Ross")
brought this civil rights action against
the defendants, directors of the Henry
Street Settlement ("the Settlement") and
the Henry Street School ("the School"),
alleging that they violated certain of her
constitutional and statutory rights by
terminating her employment as aé school
psychologist after she complained to the
Board of Education about their suspension
of one student at the school. The case is
before me on a motion to dismiss, brought
pursuant to Rule 12 (b)(6), Fed.R.Civ.P.
The motion is denied in part and granted
in part.
The complaint alleges the following
facts.
The School was established and oper-
ates as a school for handicapped children.
A~64
Most of its students are placed there by
the New York City Board of Education ("the
Board") pursuant to a contractual agree-
ment. The Board retains responsibility
for the students’ education. It monitors
and regulates the School's programs. The
School receives substantial government
funding, which is channelled to it through
the Board as conduit. Some of its facil-
ities are located in government buildings.
Ross was hired by the School in
October, 1979. She is a psychologist,
whose duties at the School included
“psychological evaluation, psychotherapy,
and teaching."
In late March of 1980, one of Ross'
students was told by officials at the
School to stay home indefinitely because
of certain behavior problems. The stu-
dent had no hearing and was not formally
A-65
suspended. When Ross learned of this
action, she spoke with the defendants.
She told Robert Wolf ("Wolf") that her
clinical judgment was that it was in the
child's best interest to remain in school.
She also told the defendants that the
School had acted illegally. She read the
applicable law to Wolf.
In the face of the defendants' in-
action, Ross advised the student and her
mother of the student's procedural rights.
She also contacted the Child Advocacy
Project of the New York City Board of
Education, which agreed with Ross about
the alleged infraction of the student's
rights. Two days later, on April 24,
1980, the School reversed its position and
reinstated the student. According to the
allegations of the complaint, the student
had missed ten days of school. Also on
A-66
April 24, Ross was dismissed. She was
given two reasons for her dismissal, one,
that she had contacted the Board of Ed-
ucation, an “outside agency," about the
School's allegedly illegal activities, and
two, that she had assumed an inappropriate
role as child advocate. Plaintiff ap-
pealed that dismissal through internal
administrative channels; however, that
appeal was unsuccessful.
For purposes of this motion to dis-
miss, the preceding recitation of facts
taken from Ross' complaint is taken as
true. See California Motor Transport Co.
v. Trucking Unlimited, 404 U.S. 508, 515
(1972).
Based on these alleged facts, Ross
asserts three separate causes of action.
First, she asserts a cause of action under
42 U.S.C. § 1983 for violation of her
A~67
First and Fourteenth Amendment rights.
Second, she alleges that her rights under
§ 504 of the Rehabilitation Act of 1973,
29 U.S.C. § 794 and regulations promul-
gated thereunder were infringed by her
dismissal. Finally, she claims that de-
fendants' actions violated her rights
under the Education for All Handicapped
Children Act, 20 U.S.C. § 1401, et. seq.,
(EAHCA) and applicable regulations.
Defendants challenge the legal suf-
ficiency of the complaint on all three
grounds. As to the first cause of action,
they maintain that the requisite state
action to sustain a claim under § 1983 is
lacking. As to the second cause of
action, they claim that § 504 is inapplic-
able here because no discrimination on the
basis of handicap is alleged. In
addition, as to both the second and third
A-68
causes of action, defendants contend that
Ross lacks standing under the statutes and
regulations she invokes.
On a motion to dismiss, "the sole
issue is whether under the facts alleged
in the plaintiff's complaint it appears to
a certainty that the plaintiff is entitled
to no relief." Holmes v. Silver Cross
Hospital of Joliet, 340 F. Supp. 125, 130
(N.D. Ill. 1972). Under the first two
causes of action alleged here, in accor-
dance with the facts as pleaded, Ross may
be able to establish entitlement to
relief. However, I agree with the defen-
dants that she lacks standing to sue under
EAHCA. Accordingly, at this stage of this
litigation, I reject defendants' challenge
to the legal sufficiency of Ross' first
two claims, but grant the motion to dis-
miss the third.
A-69
It is true, as defendants assert,
that on her first cause of action plain-
tiff has the burden of proving that her
dismissal was the result of state action.
See Jensen v. Farrell Lines, Inc., 625
F.2d 379, 384 (2d Cir. 1980), cert.
denied, _—*U.S. __, 101 S.Ct. 1359 (1981).
However, under this complaint she may be
able to carry that burden in accordance
with the "state-function" approach to
determining state action. Under this
approach a court may find state action if
"the conduct of the private actor is
equivalent to the performing of a state
function, or is traditionally associated
with sovereignty." Id.
Application of the state function
test is problematic. However, light may
be shed on the instant case by a
comparison of two cases in this Circuit,
A-70
Perez v. Sugarman, 499 F.2d 761 (2d Cir.
1974) and Lefcourt v. Legal Aid Society,
445 F.2d 1150 (2d Cir. 1971).
Perez was a civil rights action
alleging constitutional infringements by,
among others, two private child care
institutions, the New York Foundling
Hospital and St. Joseph's Home _ for
Children. The complaint alleged uncon-
stitutional detention of the plaintiff's
children. The court applied the state
function test and found that the institu-
tions acted “under color of state law,"
and were therefore open to suit under §
1983. In doing so, it placed primary
reliance on the statutory scheme involved.
Under that scheme, the government was
charged with primary responsibility for
the welfare of needy children, but could
discharge that responsibility either
A-71
directly or through an authorized agency.
The defendant institutions were such au-
thorized agencies. The court found that
although it had entrusted the plaintiff's
children to those private institutions,
the state was "in effect providing the
care through [those] institutions," Perez,
supra, at 765, and concluded that "[t]his
exercise of the administrative placing
prerogative does not affect in any way the
State's ultimate responsibility for the
well-being of the children, and, conse-
quently, the public nature of the function
being performed." Id.
In Lefcourt, the plaintiff alleged
that his dismissal from service as a Legal
Aid Society ("Society") attorney abridged
his First and Fourteenth Amendment rights.
The Second Circuit affirmed the dis-
trict court's dismissal of the complaint,
A-72
finding that the Society did not perform a
public function for purposes of § 1983.
The court emphasized the autonomy of the
Society, and the fact that its primary
duty was to its clients, not to the city.
It also stressed the fact that legal
representation of criminal defendants is
traditionally a private, not a public
function, notwithstanding the fact that
the state might be forced to assume
responsibility for indigent defendants in
the absence of organizations such as the
Society. See also Graseck v. Mauceri, 582
F.2d 203 (2d Cir. 1978), cert. denied, 439
U.S. 1129 (1979).
This case more closely tracks Perez
than Lefcourt. The statutory scheme in-
volved here is, in all relevant respects,
indistinguishable from that relied upon
by the court in Perez. Under New York
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Education Law §§ 4401 et seg., the state
has the duty to provide for the educa-
tional needs of handicapped children. It
can fulfill that duty either through
operating programs in the public schools
or through contracting with private in-
stitutions, but it retains responsibility
for the provision of educational services
regardless of the means by which they are
provided. See N.Y. Education Law § 4402
2.a. Contracts with private institutions
are subject to approval by the State
Commissioner of Education. Those insti-
tutions receiving public financial as-
sistance are subject to inspection by the
state.
The Henry Street School operates
within this statutory framework. At this
stage of this litigation, it would there-
fore appear to stand in a legal posture
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similar to that assumed by the private
child care institutions in Perez. Here,
as in Perez, it would appear that the
state in effect provides the mandated care
through the private institution with which
it contracts.?
Lefcourt is distinguishable in sev-
eral respects. The School, unlike the
Society, is subject to monitoring and
regulation and is far from autonomous.
Although the issue remains unsettled,
education, unlike legal representation,
appears to be treated as a more charac-
teristically governmental than private
IRendell-Baker ov. Kohn, No. 80-1451
(1[st Cir. 1981), on which defendants rely,
is distinguishable. It is not clear from
the opinion whether the _ statutory scheme
involved there contemplates retention of
responsibility by the state, and the deci-
sion does not turn on that factor. Here,
by contrast, as in Perez, the state re-
tains responsibility for the provision of
the services involved.
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function for purposes of state action
analysis. See generally Flagg Bros., Inc.
v. Brooks, 436 U.S. 149, 163 (1978)(ed-
ucation acknowledged to be more of a
public function than dispute resolution,
though degree to which states can delegate
educational functions and thereby avoid
Fourteenth Amendment strictures un-
decided).
Under Perez, because of the statutory
scheme outlined above, and primarily
because of the primary responsibility for
the education of the handicapped retained
by the state, I find that under the al-
legations of this complaint plaintiff may
be able to prove that the actions of the
School were state actions. She may there-
fore be able to sustain a cause of action
under § 1983. The motion to dismiss the
first cause of action in this complaint is
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therefore denied. This denial, of course,
in no way suggests pre-judgment of the
merits of plaintiff's First Amendment
clain. A determination regarding the
protection afforded Ross' speech and the
factors actually involved in her dismissal
must await trial. See generally Snepp v.
United States, 444 U.S. 507 (1980); Mt.
Healthy City School District Board of
Education v. Doyle, 429 U.S. 274 (1977);
Pickering v. Board of Education, 391 U.S.
563 (1968).
As stated above, the second and third
causes of action, the statutory claims,
are challenged primarily on _ standing
grounds. The § 504 claim is assailed for
the additional reason that the complaint
is said not to allege discrimination on
the basis of handicap.
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At this stage of this proceeding, it
is not possible to say with certainty that
under this complaint, plaintiff may not be
able to prove discrimination on the basis
of handicap. It may be that the theory of
plaintiff's case will be, and the evidence
will show, that the student's behavioral
problems that prompted her suspension were
linked to her handicap. Such a theory and
such proof would support a claim of dis-
crimination on the basis of handicap. See
S-I v. Turlington, No. 79-2742 (5th Cir.
1981).
However, even if that is not the
nature of plaintiff's claim or proof, it
is possible that she may make out a cause
of action under § 504 and the regulations
promulgated thereunder through other
theories and proof not yet advanced.
Furthermore, under that statute and those
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regulations, I find that she has standing,
for the reasons that follow.
A regulation promulgated under § 504
of the Rehabilitation Act mandates that
certain procedural rights be afforded
handicapped children. see 45 C.F.R. §
84.36. That regulation is buttressed by
the incorporation by reference of the
anti-retaliation provisions of Title VI of
the Civil Rights Act of 1964, see 29
U.S.C. § 794a (2), 45 C.F.R. § 84.61.
Under those provisions, Ross, as one who
complained of an alleged violation of the
Act, is protected against the kind of
retaliation her complaint alleges. Be-
cause she is in the "zone of interests"
meant to be protected by § 504 and these
regulations and because she has suffered
“injury in fact," Ross has standing to
raise a claim under these provisions. See
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Association of Data Processing Service
Organizations, Inc. v. Camp, 397 U.S. 150
(1970).
No comparable regulation has been
promulgated under the Education for All
Handicapped Children act. Despite that,
plaintiff argues that an anti-retaliation
rule should be implied. She points to the
likelihood that the handicapped will lack
the knowledge necessary to protect them-
selves and argues that protecting those
who seek to vindicate the rights of the
handicapped will ultimately safeguard the
handicapped themselves. Plaintiff con-
tends that under this "child benefit
theory," she has standing under EAHCA to
complain that her dismissal resulted from
her attempts to challenge what she saw as
a violation of her student's procedural
rights.
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No cases dealing with this issue and
decided under EACHA have been cited to or
found by the court. Plaintiff relies on
Forrest v. Ambach, Sept. 26, 1980, cal.
Nos. 12, 41 (Sup. Ct. Albany Co. Dec. ll,
1980), in which a _ school psychologist,
proceeding under N.Y. Education Law § 310,
was found to have standing to contest her
dismissal on the ground that it had been
motivated by her attempts to comply with
the law by providing statutorily mandated
evaluations of students, her attempts to
protect other rights of handicapped
students, and her efforts to expose the
school's neglect of its own statutory
duties. The court found that the com-
missioner had been wrong in refusing to
consider the petitioner's allegations
concerning the reasons for her dismissal.
The commissioner's refusal was based on
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his determination that the petitioner
“lacked standing to challenge respondent's
alleged neglect of their statutory duties
regarding handicapped children." In over-
turning the commissioner's decision, the
court found that according to petitioner's
complaint the respondents' alleged neglect
of their statutory duties and disapproval
of petitioner's attempts to expose that
neglect and fulfill her own duties had
resulted in harm to the petitioner.
Therefore the court concluded that Forrest
had standing.
This case is not on all fours with
Forrest. Here, there is no allegation
that Ross was fired for acts she was re-
quired by law to perform. Ross was not
under a statutory duty to inform the stu-
dent or her parents of their procedural
rights. Such a requirement might very
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well carry with it legal protection for
those performing their duties, but no such
requirement is present here.”
Ross also argues that the court
should imply an anti-retaliation provision
here because “almost every civil rights
law enacted by Congress in the past twenty
years ... contains an anti-retaliation
provision either in the statute itself or
the implementing regulations." That fact
could just as well lead to a conclusion
contrary to that which Ross would have me
draw. Congress and the administrative
agencies have been quite explicit in other
2Ross also relies on Caulfield v.
Board of Education of the City of New
York, 583 F.2d 605 (2d Cir. 1978). Caul-
field does not support her. The issue in
Caulfield was not the i standing of the
teachers, as Ross asserts, but the jur-
isdiction of the administrative agency.
The "child benefit theory" supported § that
jurisdiction, not the standing of the
plaintiffs.
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contexts when seeking to afford protection
against retaliation. That they did not
explicitly do so here could evince an in-
tent to limit the scope of the statute's
protection. It could evince mere over-
sight. But in the absence of congres-
sional or administrative guidance, this
court will not imply a provision the
legislative and regulatory draftsmen did
not themselves adopt.
Finally, even if the School did vio-
late a statutory duty to the student, that
violation did not cause the injury Ross
complains of here, that is, her dismissal.
For that reason, too, I decline to recoq-
nize an implied cause of action on Ross'
behalf under EAHCA. See P
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