In Rendell-Baker v. Kohn, 457 U.S. 830 (1982), the U.S. Supreme Court ruled that New Perspectives School had not acted under color of state law when it dismissed six teachers and counselors for criticizing school policy and supporting a student petition drive that advocated for greater student participation in school hiring.
New Perspectives School was a nonprofit privately owned institution in Brookline, Massachusetts, that provided a high school education for students with alcohol, drug and behavioral problems or emotional or physical needs. Local government placed students there and paid their tuition under a state law that required all special needs students to have a publicly funded education.
At times, 90 percent or more of the school's budget has been made up of state funds.
The teachers and counselors had alleged the school had violated their constitutional free speech rights when they were fired.
Court: Teacher speech not protected at private school
Although such claims would in a public institution provide the basis for a First and 14th Amendment (due process) challenge, the court majority, in a decision written by Chief Justice Warren Burger decided that the school director’s actions in firing the employees did not constitute state action, or action “under color” of state law. He dismissed the lawsuit.
Prior to reaching the Supreme Court, lower federal courts had reached conflicting opinions.
The employees argued that their firings constituted state action because state and federal funds were the primary source of revenue for the school, the school performed a “public function,” and the state had subjected the school to other educational regulations.
Court: Firing was not state action just because private school performed public function
Burger distinguished this case from prior cases, many involving discrimination on the basis of race, that had attributed state action to privately owned entities.
Burger did not believe that the school’s dependance upon public funding distinguished it from “many private corporations whose business depends primarily on contracts to build roads, bridges, dams, ships, or submarines of the government. Acts of such private contractors do not become acts of the government by reason of their significance or even total engagement in performing public contracts.”
Moreover, despite its regulations in other areas related to curricular matters, the state had previously “showed little interest in the school’s personnel matters,” Burger’s opinion said.
Although Burger had little doubt that education is a public function, such services are not “the exclusive province of the State.” He observed that just because “a private entity performs a function which serves the public does not make its acts state action.”
Justice Bryron White issued a brief concurring opinion, in which he agreed that “The employment decision remains ... a private decision not fairly attributable to the State.”
Thurgood Marshall dissent: School was performing statutory duty of the state
Citing rival precedents, Justice Thurgood Marshall authored a dissenting opinion joined by Justice William Brennan, arguing that the relationship between the state and the school, both in terms of funding and regulation, were substantial enough to qualify the decision to fire teachers as state action, subject to First and 14th Amendment guidelines.
Marshall distinguished the school from other private contractors by observing that “unlike most private contractors, the school is performing a statutory duty of the State.” He further accused the majority of making “a return to empty formalism in state action doctrine.”
Ruling gives private private schools leeway to regulate speech
This decision is one of many that need to be considered in assessing the degree to which private colleges and universities and other private entities have wider leeway in regulating speech on campuses or other properties than their public counterparts.
To date, the Supreme Court has struck down many campus speech codes at public colleges and universities that might be permissible at private institutions, especially those with a religious affiliation.
John R. Vile is a political science professor and dean of the Honors College at Middle Tennessee State University.