Rendell-Baker v. Kohn, 457 U.S. 830 (1982)

Author: Justice Marshall

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Rendell-Baker v. Kohn, 457 U.S. 830 (1982)

JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, dissenting.

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.

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.


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.

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, 1111502.4(i), 804.2 (1979). In general, special education programs must be provided in the least restrictive environment possible. ¶ 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.

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.

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 (CA1 1981).

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.

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.

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 (:966). See Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961); see also Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 175 (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. 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.

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.

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}

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 (1979).{2} of course, as the majority emphasizes, ante at842, 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. See Marsh v. Alabama, 326 U.S. 501 (1946); Smith v. Allwright, 321 U.S. 649 (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.

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.

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 (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.

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}

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.

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 needs -- since the school is really just an arm of the State -- its personnel decisions may appropriately be considered state action.


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.

1. 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, ante at 221 (public education is not "merely some governmental `benefit’ indistinguishable from other forms of social welfare legislation"); Wisconsin v. Yoder, 406 U.S. 205, 221 (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 (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 (1923) ("The American people have always regarded education and acquisition of knowledge as matters of supreme importance").

3. 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 (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.

4. 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 (1979); Pickering v. Board of Education, 391 U.S. 563 (1968); Keyshian v. Board of Regents, 385 U.S. 589 (1967); Shelton v. Tucker, 364 U.S. 479 (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 sel-esteem and development

2. establishes constructive relationships with parents and others primarily concerned with the wellbeing 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 new, 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.


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Chicago: Marshall, "Marshall, J., Dissenting," Rendell-Baker v. Kohn, 457 U.S. 830 (1982) in 457 U.S. 830 457 U.S. 845–457 U.S. 852. Original Sources, accessed April 1, 2023,

MLA: Marshall. "Marshall, J., Dissenting." Rendell-Baker v. Kohn, 457 U.S. 830 (1982), in 457 U.S. 830, pp. 457 U.S. 845–457 U.S. 852. Original Sources. 1 Apr. 2023.

Harvard: Marshall, 'Marshall, J., Dissenting' in Rendell-Baker v. Kohn, 457 U.S. 830 (1982). cited in 1982, 457 U.S. 830, pp.457 U.S. 845–457 U.S. 852. Original Sources, retrieved 1 April 2023, from