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. 457 U. S.
(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.
457 U. S.
(b) The school's receipt of public funds does not make the
discharge decisions acts of the State. Cf. Blum v. Yaretsky,
p. 457 U. S. 991
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
Page 457 U. S. 831
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
distinguished. Pp. 457 U. S.
641 F.2d 14, affirmed.
BURGER, C.J., delivered the opinion of the Court, in which
BLACKMUN, POWELL, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined.
WHITE, J., filed an opinion concurring in the judgment,
p. 457 U. S. 843
MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J.,
p. 457 U. S.
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.
Respondent Kohn is the director of the New Perspectives School,
a nonprofit institution located on privately owned
Page 457 U. S. 832
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.
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.
] 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. [Footnote
Page 457 U. S. 833
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
contract specifies that school employees are not city employees.
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
While five of the six petitioners were teachers at the school,
petitioner Rendell-Baker 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
Page 457 U. S. 834
described in the school's grant proposal to the Committee; the
Committee does not interview applicants for counselor
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
Rendell-Baker 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.
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
Page 457 U. S. 835
under 42 U.S.C. § 1983, alleging that she had been discharged in
violation of her rights under the First, Fifth, and Fourteenth
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.
On April 16, 1980, the District Court for the District of
Massachusetts 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.
] The District Court
took as its standard
"'whether there is a sufficiently close nexus between the State
and the challenged action of the regulated
Page 457 U. S. 836
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
419 U. S. 351
(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.
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
365 U. S. 722
(1961), concluded that the school performed a "public function," as
described in Jackson, supra,
at 419 U. S. 352
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).
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
Page 457 U. S. 837
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.
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).
We granted certiorari, 454 U.S. 891 (1981), and we affirm.
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,
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
Page 457 U. S. 838
Rights Cases, 109 U. S. 3
109 U. S. 11
(1883); Shelley v. Kraemer, 334 U. S.
, 334 U. S. 13
(1948). [Footnote 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.
In United States v. Price, 383 U.
, 383 U. S. 794
n. 7 (1966), the Court stated:
"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.
See also United States v. Classic, 313 U.
, 313 U. S. 326
(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., post
at 457 U. S. 937
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. [Footnote 6
] If the action of the respondent
school is not state action, our inquiry ends.
Page 457 U. S. 839
In Blum v. Yaretsky, post,
p. 457 U. S. 991
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
Page 457 U. S. 840
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." Post
at 457 U. S.
. Like the New Perspectives School, the nursing
homes were privately owned and operated. Post
457 U. S.
. Relying on Flagg Brothers, Inc. v.
Brooks, 436 U. S. 149
(1978); Jackson v. Metropolitan Edison Co., 419 U.
(1974); Moose Lodge No. 107 v. Irvis,
407 U. S. 163
(1972); and Adickes v. S. H. Kress Co., 398 U.
(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."
at 457 U. S.
. 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.
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. Post
at 457 U. S.
. 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,
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.
The school, like the nursing homes, is not fundamentally
different from many private corporations whose business depends
Page 457 U. S. 841
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.
The school is also analogous to the public defender found not to
be a state actor in Polk County v. Dodson, 454 U.
(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
at 454 U. S. 318
Here, the relationship between the school and its teachers and
counselors is not changed because the State pays the tuition of the
A second factor considered in Blum v. Yaretsky
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
at 457 U. S.
-1008, 457 U. S.
-1010. 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 419 U. S. 350
did not make a utility's actions state action.
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
Page 457 U. S. 842
counselors. Such a regulation is not sufficient to make a
decision to discharge, made by private management, state action.
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."
at 419 U. S. 353
quoted in Blum v. Yaretsky, post
at 457 U. S.
(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. [Footnote 7
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
(1961). Such a claim is rejected in Blum v. Yaretsky,
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
Page 457 U. S. 843
of the garage. 365 U.S. at 365 U. S. 723
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
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
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.
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
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.
, 398 U. S.
-156 (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
Similarly, Flagg Brothers, Inc. v. Brooks, 436 U.
(1978), and Lugar, post,
p. 457 U. S. 922
illustrate the relevance of whether action was taken in concert
with a state actor. The issue in Flagg Brothers
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 436 U. S. 156
since no state actor was involved. Since the respondent in
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.
, a lessee obtained an ex parte
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.
at 457 U. S. 941
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
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.
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
(1966) (private trustees appointed to manage previously public park
for white persons only).
JUSTICE WHITE, concurring in the judgments.*
The issue in Blum v. Yaretsky,
No. 80-1952, 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., post
at 457 U. S. 937
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,"
at 457 U. S.
, with which I agree.
Page 457 U. S. 844
Similarly, the allegations of the petitioners in
Rendell-Baker v. Kohn,
No. 80-2102, fail to satisfy the
state action 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."
at 457 U. S. 841
The employment decision remains, therefore, a private decision not
fairly attributable to the State.
Accordingly, I concur in the judgments.
* [This opinion applies also to No. 81952, Blum,
Commissioner of the New York State Department of Social Services,
et al. v. Yaretsky et al., post,
p. 457 U. S.
JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins,
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
Page 457 U. S. 845
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
Page 457 U. S. 846
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
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
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
Page 457 U. S. 847
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
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,
382 U. S. 299
(:966). See Burton v. Wilmington Parking Authority,
365 U. S. 715
(1961); see also Jackson v. Metropolitan Edison Co.,
419 U. S. 345,
419 U. S. 351
(1974); Moose Lodge No. 107 v. Irvis, 407 U.
S. 163, 407 U. S. 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 365 U. S. 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.
Page 457 U. S. 848
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.
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.
, 441 U. S. 77
(1979). [Footnote 2/2
] of course,
as the majority emphasizes, ante
Page 457 U. S. 849
457 U. S. 842
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 419 U. S. 353
See Marsh v. Alabama, 326 U. S. 501
(1946); Smith v. Allwright, 321 U.
(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.
] 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
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.
Page 457 U. S. 850
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
345 U. S. 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. [Footnote 2/4
State, by refusing to intervene, has effectively endorsed that view
of its duties under Chapter 766. In short, because petitioners'
criticism was directly addressed
Page 457 U. S. 851
to the State's responsibilities under Chapter 766, a finding of
state action is justified. [Footnote
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."
at 457 U. S.
-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
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
Page 457 U. S. 852
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.
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
457 U. S.
-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 457 U. S.
This Court has repeatedly recognized the unique role that
education plays in American society. See Plyler v. Doe,
at 457 U. S. 221
(public education is not "merely some governmental benefit'
indistinguishable from other forms of social welfare legislation");
Wisconsin v. Yoder, 406 U. S. 205,
406 U. S. 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, 374 U. S. 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, 262 U. S. 400
(1923) ("The American people have always regarded education and
acquisition of knowledge as matters of supreme
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
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.
(1968); Keyshian v. Board of Regents,
385 U. S. 589
(1967); Shelton v. Tucker, 364 U.
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
"[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
"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).
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.