Research Center, University of Texas, 1969], 30).
Though modern-day private institutions are not always free from examination “in a court of law,” the law often does treat public and private institutions differently. These differences underlie much of the discussion in this book. They are critically important in assessing the law's impact on the roles of particular institutions and the duties of their administrators.
Whereas public institutions are usually subject to the plenary authority of the government that creates them, the law protects private institutions from such extensive governmental control. Government can usually alter, enlarge, or completely abolish its public institutions (see Section 11.2.2 of this book); private institutions, however, can obtain their own perpetual charters of incorporation, and, since the famous Dartmouth College case (Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819)), government has been prohibited from impairing such charters. In that case, the U.S. Supreme Court turned back New Hampshire's attempt to assume control of Dartmouth by finding that such action would violate the Constitution's contracts clause. Subsequently, in three other landmark cases—Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); and Farrington v. Tokushige, 273 U.S. 284 (1927)—the Supreme Court used the due process clause to strike down unreasonable governmental interference with teaching and learning in private schools.
Nonetheless, government does retain substantial authority to regulate private education. But—whether for legal, political, or policy reasons—state governments usually regulate private institutions less than they regulate public institutions. The federal government, on the other hand, has tended to apply its regulations comparably to both public and private institutions, or, bowing to considerations of federalism, has regulated private institutions while leaving public institutions to the states.
In addition to these differences in regulatory patterns, the law makes a second and more pervasive distinction between public and private institutions: public institutions and their officers are fully subject to the constraints of the federal Constitution, whereas private institutions and their officers are not. Because the Constitution was designed to limit only the exercise of government power, it does not prohibit private individuals or corporations from impinging on such freedoms as free speech, equal protection, and due process. Thus, insofar as the federal Constitution is concerned, a private university can engage in private acts of discrimination, prohibit student protests, or expel a student without affording the procedural safeguards that a public university is constitutionally required to provide.
1.5.2. The state action doctrine.
1.5.2.1 When private postsecondary institutions may be engaged in state action. Before a court will require that a postsecondary institution comply with the individual rights requirements in the federal Constitution, it must first determine that the institution's challenged action is state action.4 When suit is filed under 42 U.S.C. § 1983 (Section 1983) (see Sections 3.4 and 4.4.4 of this book), the question is rephrased as whether the challenged action was taken “under color of” state law, an inquiry that is the functional equivalent of the state action inquiry (see, for example, West v. Atkins, 487 U.S. 42 (1988)). Although the state action (or color of law) determination is essentially a matter of distinguishing public institutions from private institutions, and the public parts of an institution from the private parts—or more generally, distinguishing public “actors” from private “actors”—these distinctions do not necessarily depend on traditional notions of public or private. Due to varying patterns of government assistance and involvement, a continuum exists, ranging from the obvious public institution (such as a tax-supported state university) to the obvious private institution (such as a religious seminary). The gray area between these poles is a subject of continuing debate about how much the government must be involved in the affairs of a “private” institution or one of its programs before it will be considered “public” for purposes of the state action doctrine. As the U.S. Supreme Court noted in the landmark case of Burton v. Wilmington Parking Authority, 365 U.S. 715, 722 (1961), “Only by sifting facts and weighing circumstances can the non-obvious involvement of the State in private conduct be attributed its true significance.”
Since the early 1970s, the trend of the U.S. Supreme Court's opinions has been to trim back the state action concept, making it less likely that courts will find state action to exist in particular cases. The leading education case in this line of cases is Rendell-Baker v. Kohn, 457 U.S. 830 (1982). Another leading case, Blum v. Yaretsky, 457 U.S. 991 (1982), was decided the same day as Rendell-Baker and reinforces its narrowing effect on the law.
Rendell-Baker was a suit brought by teachers at a private high school who had been discharged as a result of their opposition to school policies. They sued the school and its director, Kohn, alleging that the discharges violated their federal constitutional rights to free speech and due process. The issue before the Court was whether the private school's discharge of the teachers was “state action” and thus subject to the federal Constitution's individual rights requirements.
The defendant school specialized in education for students who had drug, alcohol, or behavioral problems or other special needs. Nearly all students were referred by local public schools or by the drug rehabilitation division of the state's department of health. The school received funds for student tuition from the local public school systems from which the students came and were reimbursed by the state department of health for services provided to students referred by the department. The school also received funds from other state and federal agencies. Virtually all the school's income, therefore, was derived from government funding. The school was also subject to state regulations on various matters, such as record keeping and student-teacher ratios, and requirements concerning services provided under its contracts with the local school boards and the state health department. Few of these regulations and requirements, however, related to personnel policy.
The teachers argued that the school had sufficient contacts with the state and local governments so that the school's discharge decision should be considered state action. The Court disagreed, holding that neither the government funding nor the government regulation was sufficient to make the school's discharge of the teachers state action. As to the funding, the Court analogized the school's situation to that of a private corporation whose business depends heavily on government contracts to build “roads, bridges, dams, ships, or submarines” for the government, but is not considered to be engaged in state action. And as to the regulation, it did not address personnel matters. Therefore, said the court, state regulation was insufficient to transform a private personnel decision into state action.
The Court also rejected two other arguments of the teachers: that the school was engaged in state action because it performed a “public function” and that the school had a “symbiotic relationship” with—that is, was engaged in a “joint venture” with—government, which constitutes state action under the Court's earlier case of Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961) (discussed above). As to the first argument, the Court reasoned in Rendell-Baker that the appropriate inquiry was whether the function performed has been “traditionally the exclusive prerogative of the state” (quoting Jackson v. Metropolitan Edison Co., 419 U.S. at 353). The Court explained that the state never had exclusive jurisdiction over the education of students with special needs and had only recently assumed the responsibility to educate them.
As to the teachers' second argument, the Court concluded simply that “the school's fiscal relationship with the state is not different
