457 U.S.

830
102 S.Ct. 2764
73 L.Ed.2d 418

Sheila RENDELL-BAKER, et al., Petitioners

v.
Sandra KOHN et al.
No. 80-2102.
Argued April 19, 1982.
Decided June 25, 1982.

Syllabus
Respondent school is a privately operated school for maladjusted high
school students. In recent years, nearly all of the students have been
referred to the school by city school committees under a Massachusetts
statute or by a state agency. When the students are referred to the school
by the city committees, these cities pay for the students' education. The
school also receives funds from a number of state and federal agencies.
Public funds have recently accounted for at least 90% of the school's
operating budget. To be eligible for tuition funding under the state statute,
the school must comply with a variety of state regulations, but these
regulations impose few specific personnel requirements. Similarly, the
school's contracts with the State and the city committees generally do not
cover personnel policies. Petitioners, a former vocational counselor and
teachers at the school, brought separate actions in Federal District Court
under 42 U.S.C. 1983, claiming that they had been discharged by the
school in violation of their First, Fifth, and Fourteenth Amendment rights.
The court dismissed the counselor's action but denied a motion to dismiss
the teachers' action, reaching conflicting conclusions as to whether the
school had acted under color of state law so as to be subject to liability
under 1983. On appeal the cases were consolidated, and the Court of
Appeals held that it was error to conclude that the school acted under
color of state law, since, although regulated by the State, it was not
dominated by the State, especially with respect to decisions involving
discharge of personnel.
Held : Respondent school did not act under color of state law when it

discharged petitioner employees, and hence petitioners have not stated a

claim for relief under 1983. Pp. 837-843.
(a) The ultimate issue in determining whether a person is subject to suit
under 1983 is the same question posed in cases arising under the
Fourteenth Amendment: Is the alleged infringement of federal rights fairly
attributable to the State? Pp. 837-838
(b) The school's receipt of public funds does not make the discharge
decisions acts of the State. Cf. Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct.
2777, 73 L.Ed.2d 534. The school is not fundamentally different from
many private corporations whose business depends primarily on contracts
with the government, and whose acts do not become acts of the
government by reason of their significant or even total engagement in
performing public contracts. The decision to discharge petitioners was not
compelled or even influenced by any state regulation, and the fact that the
school performs a public function in educating maladjusted high school
students does not make its acts state action. Moreover, since the school's
fiscal relationship with the State is not any different from that of many
contractors performing services for the government, there is no "symbiotic
relationship" between the school and the State. Burton v. Wilmington
Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45,
distinguished. Pp 839-843.
641 F.2d 14 (C.A.1 1981) affirmed.
Zachary R. Karol, Boston, Mass., for petitioners.
Matthew H. Feinberg, Boston, Mass., for respondents.
Chief Justice BURGER delivered the opinion of the Court.

We granted certiorari to decide whether a private school, whose income is

derived primarily from public sources and which is regulated by public
authorities, acted under color of state law when it discharged certain employees.

2* A.
3

Respondent Kohn is the director of the New Perspectives School, a nonprofit

institution located on privately owned property in Brookline, Massachusetts.
The school was founded as a private institution and is operated by a board of
directors, none of whom are public officials or are chosen by public officials.

The school specializes in dealing with students who have experienced difficulty
completing public high schools; many have drug, alcohol, or behavioral
problems, or other special needs. In recent years, nearly all of the students at
the school have been referred to it by the Brookline or Boston School
Committees, or by the Drug Rehabilitation Division of the Massachusetts
Department of Mental Health. The school issues high school diplomas certified
by the Brookline School Committee.
4

When students are referred to the school by Brookline or Boston under Chapter
766 of the Massachusetts Acts of 1972, the School Committees in those cities
pay for the students' education.1 The school also receives funds from a number
of other state and federal agencies. In recent years, public funds have accounted
for at least 90%, and in one year 99%, of respondent school's operating budget.
There were approximately 50 students at the school in those years and none
paid tuition.2

To be eligible for tuition funding under Chapter 766, the school must comply
with a variety of regulations, many of which are common to all schools. The
State has issued detailed regulations concerning matters ranging from
recordkeeping to student-teacher ratios. Concerning personnel policies, the
Chapter 766 regulations require the school to maintain written job descriptions
and written statements describing personnel standards and procedures, but they
impose few specific requirements.

The school is also regulated by Boston and Brookline as a result of its Chapter
766 funding. By its contract with the Boston School Committee, which refers to
the school as a "contractor," the school must agree to carry out the
individualized plan developed for each student referred to the school by the
Committee. See n. 1, supra. The contract specifies that school employees are
not city employees.3

The school also has a contract with the State Drug Rehabilitation Division. Like
the contract with the Boston School Committee, that agreement refers to the
school as a "contractor." It provides for reimbursement for services provided
for students referred to the school by the Drug Rehabilitation Division, and
includes requirements concerning the services to be provided. Except for
general requirements, such as an equal employment opportunity requirement,
the agreement does not cover personnel policies.

While five of the six petitioners were teachers at the school, petitioner RendellBaker was a vocational counselor hired under a grant from the federal Law

Enforcement Assistance Administration, whose funds are distributed in

Massachusetts through the State Committee on Criminal Justice. As a condition
of the grant, the Committee on Criminal Justice must approve the school's
initial hiring decisions. The purpose of this requirement is to insure that the
school hires vocational counselors who meet the qualifications described in the
school's grant proposal to the Committee; the Committee does not interview
applicants for counselor positions.
B
9

Rendell-Baker was discharged by the school in January 1977, and the five other
petitioners were discharged in June 1978. Rendell-Baker's discharge resulted
from a dispute over the role of a student-staff council in making hiring
decisions. A dispute arose when some students presented a petition to the
school's board of directors in December 1976, seeking greater responsibilities
for the student-staff council. Director Kohn opposed the proposal, but RendellBaker supported it and so advised the board. On December 13, Kohn notified
the State Committee on Criminal Justice, which funded Rendell-Baker's
position, that she intended to dismiss Rendell-Baker and employ someone else.
Kohn notified Rendell-Baker of her dismissal in January 1977.

10

Rendell-Baker then advised the board of directors that she had been discharged
without due process because she exercised her First Amendment rights. She
demanded reinstatement or a hearing. The school agreed to apply a new policy,
calling for appointment of a grievance committee, to consider her claims.
Rendell-Baker also complained to the State Committee on Criminal Justice,
which asked the school to provide a written explanation for her discharge. After
the school complied, the Committee responded that it was satisfied with the
explanation, but notified the school that it would not pay any backpay or other
damages award Rendell-Baker might obtain from it as a result of her discharge.
The Committee told Rendell-Baker that it had no authority to order a hearing,
although it would refuse to approve the hiring of another counselor if the
school disregarded its agreement to apply its new grievance procedure in her
case. At this point Rendell-Baker objected to the composition of the grievance
committee, and its proceedings apparently never went forward. Rendell-Baker
filed this suit in July 1977 under 42 U.S.C. 1983, alleging that she had been
discharged in violation of her rights under the First, Fifth, and Fourteenth
Amendments.

11

In the spring of 1978, students and staff voiced objections to Kohn's policies.
The five petitioners other than Rendell-Baker, who were all teachers at the
school, wrote a letter to the board of directors urging Kohn's dismissal. When

the board affirmed its confidence in Kohn, students from the school picketed
the home of the president of the board. The students were threatened with
suspension; a local newspaper then ran a story about the controversy at the
school. In response to the story, the five petitioners wrote a letter to the editor in
which they stated that they thought the prohibition of picketing was
unconstitutional. On the day the letter to the editor appeared, the five teachers
told the president of the board that they were forming a union. Kohn discharged
the teachers the next day. They brought suit against the school and its directors
in December 1978. Like Rendell-Baker, they sought relief under 1983,
alleging that their rights under the First, Fifth, and Fourteenth Amendments had
been violated.
C
12

On April 16, 1980, the District Court for the District of Massachusetts, 488
F.Supp. 764, granted the defendant's motion for summary judgment in the suit
brought by Rendell-Baker. A claim may be brought under 1983 only if the
defendant acted "under color" of state law.4 The District Court took as its
standard " '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,' " quoting Jackson v. Metropolitan
Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974).
Noting that, although the State regulated the school in many ways, it imposed
few conditions on the school's personnel policies, the District Court concluded
that the nexus between the school and the State was not sufficiently close so
that the action of the school in discharging Rendell-Baker could be considered
action of the Commonwealth of Massachusetts.

13

Nine days earlier, on April 7, 1980, a different judge of the District Court for
the District of Massachusetts had reached a contrary conclusion on the same
question in the case brought by the other five petitioners. His opinion stressed
the school's dependency on public funding and its regulation by numerous
public entities. It also noted that although education was not a uniquely public
function, it is primarily a public function, and that Brookline did not maintain a
school to serve maladjusted adolescents with drug, alcohol, or emotional
problems. The District Court, following the guidelines of Burton v. Wilmington
Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961),
concluded that the school performed a "public function," as described in
Jackson, supra, at 352, 95 S.Ct., at 454. Accordingly, it held that the
defendants acted under color of state law and denied the motion to dismiss.
However, on June 13, 1980, noting that there was substantial ground for
disagreement on that holding, the District Court certified its order as

immediately appealable pursuant to 28 U.S.C. 1292(b).

D
14

The Court of Appeals for the First Circuit consolidated the two actions. It noted
that the school's funding, regulation, and function show that it has a close
relationship with the State. However, it stressed that the school is managed by a
private board and that the State has relatively little involvement in personnel
matters. It concluded that the school, although regulated by the State, was not
dominated by the State, especially with respect to decisions involving the
discharge of personnel. The Court of Appeals then concluded that the District
Court which certified the question in the action brought by the five teachers had
erred in concluding that the defendants acted under color of state law.

15

The Court of Appeals separately considered Rendell-Baker's claim that she was
discharged under color of state law since her position was funded directly by
the Committee on Criminal Justice. The court rejected her claim, noting that
the Committee had the power to insure that those hired had the qualifications
described in the grant proposal, but that it did not have any other control over
the school's personnel decisions. It therefore affirmed the District Court's
dismissal of her action. 641 F.2d 14 (1981).

16

We granted certiorari, 454 U.S. 891, 102 S.Ct. 385, 70 L.Ed.2d 205 (1981), and
we affirm.

II
A.
17

Petitioners do not claim that their discharges were discriminatory in violation of

Title VII of the Civil Rights Act of 1964. Nor do they claim that their
discharges were unfair labor practices in violation of the National Labor
Relations Act. Rather, they allege that respondents violated 42 U.S.C. 1983,
see n. 4, supra, by discharging them because of their exercise of their First
Amendment right of free speech and without the process due them under the
Fourteenth Amendment. Although Title VII and the National Labor Relations
Act govern action by private parties making personnel decisions, it is
fundamental that the First Amendment prohibits governmental infringement on
the right of free speech. Similarly, the Fourteenth Amendment, which prohibits
the states from denying federal constitutional rights and which guarantees due
process, applies to acts of the states, not to acts of private persons or entities.
Civil Rights Cases, 109 U.S. 3, 11, 3 S.Ct. 18, 21, 27 L.Ed. 835 (1883); Shelley

v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161 (1948).5 And
1983, which was enacted pursuant to the authority of Congress to enforce the
Fourteenth Amendment, prohibits interference with federal rights under color of
state law.
18

In United States v. Price, 383 U.S. 787, 794, n. 7, 86 S.Ct. 1152, 1157, n. 7, 16
L.Ed.2d 267 (1966), the Court stated:

19

"In cases under 1983, 'under color' of law has consistently been treated as the
same thing as the 'state action' required under the Fourteenth Amendment."

20

See also, United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85
L.Ed. 1368 (1941). The ultimate issue in determining whether a person is
subject to suit under 1983 is the same question posed in cases arising under
the Fourteenth Amendment: is the alleged infringement of federal rights "fairly
attributable to the State?" Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102
S.Ct. 2744, 2754, 73 L.Ed.2d 482. The core issue presented in this case is not
whether petitioners were discharged because of their speech or without
adequate procedural protections, but whether the school's action in discharging
them can fairly be seen as state action.6 If the action of the respondent school is
not state action, our inquiry ends.

B
21

In Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534, the Court
analyzed the state action requirement of the Fourteenth Amendment. The Court
considered whether certain nursing homes were state actors for the purpose of
determining whether decisions regarding transfers of patients could be fairly
attributed to the State, and hence be subjected to Fourteenth Amendment due
process requirements. The challenged transfers primarily involved decisions,
made by physicians and nursing home administrators, to move patients from
"skilled nursing facilities" to less expensive "health related facilities." 457 U.S.,
at 1005, 102 S.Ct., at 2786. Like the New Perspectives School, the nursing
homes were privately owned and operated. Id., at 1003, 102 S.Ct., at 2785.
Relying on Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56
L.Ed.2d 185 (1978); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95
S.Ct. 449, 42 L.Ed.2d 477 (1974); Moose Lodge No. 107 v. Irvis, 407 U.S. 163,
92 S.Ct. 1965, 32 L.Ed.2d 627 (1972); and Adickes v. S. H. Kress Co., 398 U.S.
144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), the Court held that, "a State
normally can be held responsible for a private decision only when it has
exercised coercive power or has provided such significant encouragement,
either overt or covert, that the choice must in law be deemed to be that of the

State." 457 U.S. at 1004, 102 S.Ct., at 2786. In determining that the transfer
decisions were not actions of the State, the Court considered each of the factors
alleged by petitioners here to make the discharge decisions of the New
Perspectives School fairly attributable to the State.
22

First, the nursing homes, like the school, depended on the State for funds; the
State subsidized the operating and capital costs of the nursing homes, and paid
the medical expenses of more than 90% of the patients. 457 U.S., at 1011, 102
S.Ct., at 2789. Here the Court of Appeals concluded that the fact that virtually
all of the school's income was derived from government funding was the
strongest factor to support a claim of state action. 641 F.2d, at 24. But in Blum
v. Yaretsky, we held that the similar dependence of the nursing homes did not
make the acts of the physicians and nursing home administrators acts of the
State, and we conclude that the school's receipt of public funds does not make
the discharge decisions acts of the State.

23

The school, like the nursing homes, is not fundamentally different from many
private corporations whose business depends primarily on contracts to build
roads, bridges, dams, ships, or submarines for the government. Acts of such
private contractors do not become acts of the government by reason of their
significant or even total engagement in performing public contracts.

24

The school is also analogous to the public defender found not to be a state actor
in Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981).
There we concluded that, although the State paid the public defender, her
relationship with her client was "identical to that existing between any other
lawyer and client." Id., at 318, 102 S.Ct., at 449. Here the relationship between
the school and its teachers and counselors is not changed because the State pays
the tuition of the students.

25

A second factor considered in Blum v. Yaretsky was the extensive regulation of

the nursing homes by the State. There the State was indirectly involved in the
transfer decisions challenged in that case because a primary goal of the State in
regulating nursing homes was to keep costs down by transferring patients from
intensive treatment centers to less expensive facilities when possible. Both state
and federal regulations encouraged the nursing homes to transfer patients to
less expensive facilities when appropriate. 457 U.S., at 1007-1008, 1009-1110,
102 S.Ct., at 2787-2789. The nursing homes were extensively regulated in
many other ways as well. The Court relied on Jackson, where we held that state
regulation, even if "extensive and detailed," 419 U.S., at 350, 95 S.Ct., at 453,
did not make a utility's actions state action.

26

Here the decisions to discharge the petitioners were not compelled or even
influenced by any state regulation. Indeed, in contrast to the extensive
regulation of the school generally, the various regulators showed relatively little
interest in the school's personnel matters. The most intrusive personnel
regulation promulgated by the various government agencies was the
requirement that the Committee on Criminal Justice had the power to approve
persons hired as vocational counselors. Such a regulation is not sufficient to
make a decision to discharge, made by private management, state action. See n.
6, supra.

27

The third factor asserted to show that the school is a state actor is that it
performs a "public function." However, our holdings have made clear that the
relevant question is not simply whether a private group is serving a "public
function." We have held that the question is whether the function performed
has been "traditionally the exclusive prerogative of the State." Jackson, supra,
at 353, 95 S.Ct., at 454; quoted in Blum v. Yaretsky, 457 U.S., at 1011, 102
S.Ct., at 2789 (emphasis added). There can be no doubt that the education of
maladjusted high school students is a public function, but that is only the
beginning of the inquiry. Chapter 766 of the Massachusetts Acts of 1972
demonstrates that the State intends to provide services for such students at
public expense. That legislative policy choice in no way makes these services
the exclusive province of the State. Indeed, the Court of Appeals noted that
until recently the State had not undertaken to provide education for students
who could not be served by traditional public schools. 641 F.2d, at 26. That a
private entity performs a function which serves the public does not make its
acts state action.7

28

Fourth, petitioners argue that there is a "symbiotic relationship" between the

school and the State similar to the relationship involved in Burton v.
Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45
(1961). Such a claim is rejected in Blum v. Yaretsky, and we reject it here. In
Burton, the Court held that the refusal of a restaurant located in a public
parking garage to serve Negroes constituted state action. The Court stressed
that the restaurant was located on public property and that the rent from the
restaurant contributed to the support of the garage. 365 U.S., at 723, 81 S.Ct., at
860. In response to the argument that the restaurant's profits, and hence the
State's financial position, would suffer if it did not discriminate, the Court
concluded that this showed that the State profited from the restaurant's
discriminatory conduct. The Court viewed this as support for the conclusion
that the State should be charged with the discriminatory actions. Here the
school's fiscal relationship with the State is not different from that of many
contractors performing services for the government. No symbiotic relationship

such as existed in Burton exists here.

C
29

We hold that petitioners have not stated a claim for relief under 42 U.S.C.
1983; accordingly, the judgment of the Court of Appeals for the First Circuit is

30

Affirmed.

31

Justice WHITE, concurring in the judgments.

32

The issue in Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534, is
whether a private nursing home's decision to discharge or transfer a Medicaid
patient satisfies the state-action requirement of the Fourteenth Amendment. To
satisfy this requirement, respondents must show that the transfer or discharge is
made on the basis of some rule of decision for which the State is responsible.
Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2754, 73
L.Ed.2d 482. It is not enough to show that the State takes certain actions in
response to this private decision. The rule of decision implicated in the actions
at issue here appears to be nothing more than a medical judgment. This is the
clear import of the majority's conclusion that the "decisions ultimately turn on
medical judgments made by private parties according to professional standards
that are not established by the State," 457 U.S., at 1008, 102 S.Ct., at 2788,
with which I agree.

33

Similarly, the allegations of the petitioners in Rendell-Baker v. Kohn, No. 802102 [457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418], fail to satisfy the stateaction requirement. In this case, the question of state action focuses on an
employment decision made by a private school that receives most of its funding
from public sources and is subject to state regulation in certain respects. For me,
the critical factor is the absence of any allegation that the employment decision
was itself based upon some rule of conduct or policy put forth by the State. As
the majority states, "in contrast to the extensive regulation of the school
generally, the various regulators showed relatively little interest in the school's
personnel matters." Ante, at 841. The employment decision remains, therefore,
a private decision not fairly attributable to the State.

34

Accordingly, I concur in the judgments.

35

Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.

36

Petitioners in these consolidated cases, former teachers and a counselor at the

New Perspectives School in Brookline, Mass., were discharged by the school's
administrators when they criticized certain school policies. They commenced
actions under 42 U.S.C. 1983, claiming that they had been discharged in
violation of the First, Fifth, and Fourteenth Amendments. The Court today
holds that their suits must be dismissed because the school did not act "under
color" of state law. According to the majority, the decision of the school to
discharge petitioners cannot fairly be regarded as a decision of the
Commonwealth of Massachusetts.

37

In my view, this holding simply cannot be justified. The State has delegated to
the New Perspectives School its statutory duty to educate children with special
needs. The school receives almost all of its funds from the State, and is heavily
regulated. This nexus between the school and the State is so substantial that the
school's action must be considered state action. I therefore dissent.

38

* The critical facts of this case deserve restatement. Chapter 766 of the
Massachusetts Acts of 1972, Mass.Gen.Laws Ann., ch. 71B, 1-14 (West
1981), provides that all students with special needs are entitled to a suitable
publicly funded education under the supervision of the state and local
governments. The school committee of every city, town, or school district in
Massachusetts must identify all children who, because of physical or emotional
disability, have special educational needs. It must prepare an individualized
educational program tailored to meet those needs, and arrange for the
implementation of that program. The school committee may offer the programs
through existing public schools, or it may contract with private schools to
implement the programs. If the school committee decides to place a child in a
private school, it must bear all the expenses associated with the placement;
parents need not pay the tuition.

39

If a school committee decides to place a child in a private school, it must

closely monitor the child's educational progress. Every three months it must
determine whether the child can be transferred to a less restrictive environment,
such as a public school. 603 Code Mass.Regs. 28, &Par; 502.4(i), 804.2
(1979). In general, special education programs must be provided in the least
restrictive environment possible. Id., at 322.2. If the parents object to the
placement of their child in private school, the child may remain in public school
unless he is disruptive or dangerous. Parents may also place their child in a
private school of their own choice. If they do so, however, they must pay the
tuition.

40

As of 1978, all 50 students enrolled at the New Perspectives School were

40

As of 1978, all 50 students enrolled at the New Perspectives School were

children with alcohol, drug, behavioral, or other special problems. They had
been placed there pursuant to Chapter 766 by the town of Brookline, the city of
Boston, or the Drug Rehabilitation Division of the Massachusetts Department
of Mental Health. None of the students pays tuition. When they graduate, they
receive a diploma certified by the Town of Brookline School Committee.

41

The New Perspectives School is funded almost entirely by governmental

agencies. In fiscal year 1975-1976, public funds accounted for 91% of the
school's budget. In fiscal year 1976-1977, public funds accounted for 99% of
the budget. The school has received money from the town of Brookline, the
Massachusetts Department of Mental Health, the Massachusetts Department of
Youth Services, the Massachusetts Division of Family and Children's Services,
the Massachusetts Office for Children, and the federal Law Enforcement
Assistance Administration. See 641 F.2d 14, 17 (C.A.1 1981).

42

In order to remain eligible for placements and funding under Chapter 766, the
New Perspectives School must comply with a variety of regulations. The
Massachusetts Department of Education has promulgated "Guidelines for
Approval of Day Educational Component in Private Schools under Chapter
766." These guidelines cover almost every aspect of a private school's
operations, including financial recordkeeping, student discipline, medical
examinations for students, parent involvement, health care, subjects of
instruction, teacher-student ratio, student records, confidentiality of records,
transportation, insurance, nutrition, food preparation, toileting procedures,
physical facilities, and classroom equipment. The guidelines also address
personnel policies. They set forth minimum standards for staff training, use of
volunteers, teacher qualifications, and teacher evaluations. They further require
that the school maintain written job descriptions and a written policy on criteria
and procedures for hiring and dismissal, and procedures for handling staff
complaints. And they require that the school provide vacations and other
benefits.

43

The New Perspectives School is subject to additional regulation under contracts

with each of the governmental units that refers students. A contract with the
Massachusetts Department of Mental Health, Drug Rehabilitation Division,
requires the school to provide counseling, educational, and vocational services
for drug abusers. Under a contract with the city of Boston, 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 to the city and is subject to inspection at any time during normal
business hours. Finally, the school is bound by regulations contained in

contracts with the Massachusetts Department of Youth Services and the

Brookline School Committee. See 641 F.2d, at 18.
II
44

The decisions of this Court clearly establish that where there is a symbiotic
relationship between the State and a privately owned enterprise, so that the
State and a privately owned enterprise are participants in a joint venture, the
actions of the private enterprise may be attributable to the State. "Conduct that
is formally 'private' may become so entwined with governmental policies or so
impregnated with a governmental character" that it can be regarded as
governmental action. Evans v. Newton, 382 U.S. 296, 299, 86 S.Ct. 486, 488,
15 L.Ed.2d 373 (1966). See Burton v. Wilmington Parking Authority, 365 U.S.
715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); see also Jackson v. Metropolitan
Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974);
Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 175, 92 S.Ct. 1965, 1972, 32
L.Ed.2d 627 (1972). The question whether such a relationship exists "can be
determined only in the framework of the peculiar facts or circumstances
present." Burton, supra, at 726, 81 S.Ct., at 862. Here, an examination of the
facts and circumstances leads inexorably to the conclusion that the actions of
the New Perspectives School should be attributed to the State; it is difficult to
imagine a closer relationship between a government and a private enterprise.

45

The New Perspectives School receives virtually all of its funds from state
sources. This financial dependence on the State is an important indicium of
governmental involvement. The school's very survival depends on the State. If
the State chooses, it may exercise complete control over the school's operations
simply by threatening to withdraw financial support if the school takes action
that it considers objectionable.

46

The school is heavily regulated and closely supervised by the State. This fact
provides further support for the conclusion that its actions should be attributed
to the State. The school's freedom of decisionmaking is substantially
circumscribed by the Massachusetts Department of Education's guidelines and
the various contracts with state agencies. For example, the school is required to
develop and comply with written rules for hiring and dismissal of personnel.
Almost every decision the school makes is substantially affected in some way
by the State's regulations.1

47

The fact that the school is providing a substitute for public education is also an
important indicium of state action. The provision of education is one of the
most important tasks performed by government: it ranks at the very apex of the

function of a State. Ambach v. Norwick, 441 U.S. 68, 77, 99 S.Ct. 1589, 1594,
60 L.Ed.2d 49 (1979).2 Of course, as the majority emphasizes, ante, at 2772,
performance of a public function is by itself sufficient to justify treating a
private entity as a state actor only where the function has been "traditionally the
exclusive prerogative of the State." Jackson, supra, at 353, 95 S.Ct., at 454. See
Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946); Smith v.
Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944). But the fact that a
private entity is performing a vital public function, when coupled with other
factors demonstrating a close connection with the State, may justify a finding of
state action. Cf. Evans v. Newton, supra.
48

The school's provision of a substitute for public education deserves particular

emphasis because of the role of Chapter 766. Under this statute, the State is
required to provide a free education to all children, including those with special
needs. Clearly, if the State had decided to provide the service itself, its conduct
would be measured against constitutional standards. The State should not be
permitted to avoid constitutional requirements simply by delegating its
statutory duty to a private entity.3 In my view, such a delegation does not
convert the performance of the duty from public to private action when the duty
is specific and the private institution's decisionmaking authority is significantly
curtailed.

49

When an entity is not only heavily regulated and funded by the State, but also
provides a service that the State is required to provide, there is a very close
nexus with the State. Under these circumstances, it is entirely appropriate to
treat the entity as an arm of the State. Cf. Smith v. Allwright, supra; Terry v.
Adams, 345 U.S. 461, 469, 73 S.Ct. 809, 813, 97 L.Ed. 1152 (1953) (opinion of
Black, J.). Here, since the New Perspectives School exists solely to fulfill the
State's obligations under Chapter 766, I think it fully reasonable to conclude
that the school is a state actor.

50

Indeed, I would conclude that the actions challenged here were under color of
state law, even if I believed that the sole basis for state action was the fact that
the school was providing Chapter 766 services. Petitioners claim that they were
discharged because they supported student demands for increased
responsibilities in school affairs, that is, because they criticized the school's
educational policies. If petitioners' allegations are true, then the school has
adopted a specific view of the sort of education that should be provided under
the statute, and refuses to tolerate departures from that view.4 The State, by
refusing to intervene, has effectively endorsed that view of its duties under
Chapter 766. In short, because petitioners' criticism was directly addressed to
the State's responsibilities under Chapter 766, a finding of state action is

justified.5
51

The majority repeatedly compares the school to a private contractor that

"depends primarily on contracts to build roads, bridges, dams, ships, or
submarines for the government." Ante, at 840-841. The New Perspectives
School can be readily distinguished, however. Although shipbuilders and
dambuilders, like the school, may be dependent on government funds, they are
not so closely supervised by the government. And unlike most private
contractors, the school is performing a statutory duty of the State.

52

The majority also focuses on the fact that the actions at issue here are personnel
decisions. It would apparently concede that actions directly affecting the
students could be treated as under color of state law, since the school is
fulfilling the State's obligations to those children under Chapter 766. It
suggests, however, that the State has no interest in personnel decisions. As I
have suggested, I do not share this narrow view of the school's obligations; the
personnel decisions challenged here are related to the provision of Chapter 766
education. In any event, since the school is funded almost entirely by the State,
is closely supervised by the State, and exists solely to perform the State's
statutory duty to educate children with special needssince the school is really
just an arm of the State its personnel decisions may appropriately be considered
state action.

III
53

Even though there are myriad indicia of state action in this case, the majority
refuses to find that the school acted under color of state law when it discharged
petitioners. The decision in this case marks a return to empty formalism in state
action doctrine. Because I believe that the state action requirement must be
given a more sensitive and flexible interpretation than the majority offers, I
dissent.

Chapter 766, 1972 Mass.Acts, Mass.Gen.Laws Ann., ch. 71B, 3 (West

Supp.1981), requires school committees to identify students with special needs
and to develop suitable educational programs for such students. Massachusetts
Gen.Laws Ann., ch. 71B, 4 (West Supp.1981), provides that school
committees may "enter into an agreement with any public or private school,
agency, or institution to provide the necessary special education" for these
students. A student identified as having special needs and recommended for
placement in private school may remain in public school, if his parents object to

a placement in a particular private school, unless he is especially disruptive or

dangerous. Parents who object to placement in a particular private school may
also elect to place their child in a private school of their choice; in such cases,
they must pay the tuition.
2

Amicus curiae Massachusetts Association of 766 Approved Private Schools,

Inc., of which the New Perspectives School is a member, informs the Court that
many of its members have a student population which is more or less evenly
divided between students referred and paid for by the State and students
referred and paid for by their parents or guardians. Brief as Amicus Curiae 3.

The record does not contain details of the school's contract with the Brookline
School Committee.

Title 42 U.S.C. 1983 provides:

"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, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress."

The Fourteenth Amendment provides, in pertinent part:

"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. . . ."

The Court has concluded that the acts of a private party are fairly attributable to
the state on certain occasions when the private party acted in concert with state
actors. For example, in Adickes v. S. H. Kress & Co., 398 U.S. 144, 155-156, 90
S.Ct. 1598, 1607, 26 L.Ed.2d 142 (1970), the issue was whether a restaurant
violated 1983 by refusing service to a white teacher who was in the company
of six Negro students; the town sheriff arrested the white teacher for vagrancy
as a result of her request to be served lunch in their company. The Court
concluded that the restaurant acted under color of state law because it conspired
with the sheriff, a state actor, in depriving the white teacher of federal rights.
Similarly, Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56
L.Ed.2d 185 (1978), and Lugar, 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482,
illustrate the relevance of whether action was taken in
concert with a state actor. The issue in Flagg Brothers was whether a

warehouseman could be sued under 1983 because it sought to execute a lien

by selling goods in its possession pursuant to 7-210 of the New York Uniform
Commercial Code. While the sale was authorized by a state statute, and hence
appeared to be threatened under color of state law, the Court did not reach that
issue. Instead, it concluded that the warehouseman's decision to threaten to sell
the goods was not "properly attributable to the State of New York," 436 U.S., at
156, 98 S.Ct., at 1733, since no state actor was involved. Since the respondent
in Flagg Brothers claimed that the warehouseman violated her Fourteenth
Amendment rights to due process and equal protection, and the Fourteenth
Amendment is only offended by action of the state, we held that no claim for
relief had been stated.
In Lugar, a lessee obtained an ex parte writ of attachment pursuant to a state
statute, which was executed by a sheriff. The Court held that 1983 applied
because the involvement of the sheriff distinguished the case from Flagg
Brothers. 457 U.S., at 941, 102 S.Ct., at 2756. The lessee thus acted under
color of state law and the sheriff's involvement satisfied the state action
requirement.
The limited role played by the Massachusetts Committee on Criminal Justice in
the discharge of Rendell-Baker is not comparable to the role played by the
public officials in Adickes and Lugar. The uncontradicted evidence presented
by the school showed that the Committee had the power only initially to review
the qualifications of a counselor selected by the school to insure that the
counselor met the requirements described in the school's grant application. 641
F.2d 14, 28 (1981). The Committee had no power to hire or discharge a
counselor who had the qualifications specified in the school's grant application.
Moreover, the Committee did not take any part in discharging Rendell-Baker;
on the contrary, it attempted to use leverage to aid her. It requested an
explanation for her discharge from the school and stated that it would not
approve the appointment of a successor unless a grievance committee
considered Rendell-Baker's case. As the Court of Appeals correctly concluded,
there is no evidence that the Committee had any authority to take even those
steps. Ibid.
7

There is no evidence that the State has attempted to avoid its constitutional
duties by a sham arrangement which attempts to disguise provision of public
services as acts of private parties. Cf. Evans v. Newton, 382 U.S. 296, 86 S.Ct.
486, 15 L.Ed.2d 373 (1966) (private trustees appointed to manage previously
public park for white persons only).

The majority argues that the fact that the school receives almost all of its funds
from the state is not enough, by itself, to justify a finding of state action. It also

contends that the fact that the school is closely supervised and heavily regulated
is not enough, by itself, to justify such a finding. Ante, at 840-842. I am in
general agreement with both propositions. However, when these two factors are
present in the same case, and when other indicia of state action are also present,
a finding of state action may very well be justified. By analyzing the various
indicia of state action separately, without considering their cumulative impact,
the majority commits a fundamental error. See also ante, at 842-843.
2

This Court has repeatedly recognized the unique role that education plays in
American society. See Plyler v. Doe, 457 U.S. 202, 221, 102 S.Ct. 2382, 2397,
72 L.Ed.2d 786 (1982) (public education is not "merely some governmental
'benefit' indistinguishable from other forms of social welfare legislation");
Wisconsin v. Yoder, 406 U.S. 205, 221, 92 S.Ct. 1526, 1536, 32 L.Ed.2d 15
(1972) (education is necessary to "prepare citizens to participate effectively and
intelligently in our open political system"); Abington School District v.
Schempp, 374 U.S. 203, 230, 83 S.Ct. 1560, 1575, 10 L.Ed.2d 844 (1963)
(BRENNAN, J., concurring) (public education is a "most vital civic institution
for the preservation of a democratic system of government"); Meyer v.
Nebraska, 262 U.S. 390, 400, 43 S.Ct. 625, 627, 67 L.Ed. 1042 (1923) ("The
American people have always regarded education and acquisition of knowledge
as matters of supreme importance").

A State may not deliberately delegate a task to a private entity in order to avoid
its constitutional obligations. Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97
L.Ed. 1152 (1953). But a State's decision to delegate a duty to a private entity
should be carefully examined even when it has acted, not in bad faith, but for
reasons of convenience. The doctrinal basis for the state action requirement is
that exercises of state authority pose a special threat to constitutional values. A
private entity vested with state authority poses that threat just as clearly as a
state agency.

This Court has previously emphasized the close relationship between teachers'
free speech and the educational process. See Givhan v. Western Line
Consolidated School District, 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619
(1979); Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20
L.Ed.2d 811 (1968); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct.
675, 17 L.Ed.2d 629 (1967); Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5
L.Ed.2d 231 (1960).
The Commonwealth of Massachusetts has recently promulgated regulations
recognizing that the role of teachers of special needs students is not limited to
course instruction. These regulations provide:

"[T]he candidate will demonstrate that he or she:

1. responds to the needs of individual students so as to enhance their self-esteem
and development
2. establishes constructive relationships with parents and others primarily
concerned with the well-being of his or her students
3. works to develop a learning environment which is favorable to openness of
inquiry and devoid of ridicule." 603 Code Mass.Regs. 7, 7.04(40)(f) (1982).
5

In my view, this connection between the teacher's role and the provision of
Chapter 766 education would justify a finding that the State had acted under
color of state law, even if the school did not depend solely on Chapter 766
placements. If the school had only one special needs student, and petitioners
were discharged for criticizing the school's education of that child, a finding of
state action might be justified.