Title: Judicial redefinition of state action in regard to due process issues in nonpublic educational institutions /
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Permanent Link: http://ufdc.ufl.edu/UF00098842/00001
 Material Information
Title: Judicial redefinition of state action in regard to due process issues in nonpublic educational institutions /
Alternate Title: State action in regard to due process issues in nonpublic educational institutions, Judicial redefinition of
Physical Description: vii, 171 leaves : ; 28 cm.
Language: English
Creator: Murphy, Dennis Dailey, 1947-
Publication Date: 1979
Copyright Date: 1979
Subject: Constitutional amendments -- United States   ( lcsh )
Private schools -- Law and legislation -- United States   ( lcsh )
Due process of law -- United States   ( lcsh )
Educational Administration and Supervision thesis Ph. D   ( lcsh )
Dissertations, Academic -- Educational Administration and Supervision -- UF   ( lcsh )
Genre: bibliography   ( marcgt )
non-fiction   ( marcgt )
Thesis: Thesis--University of Florida.
Bibliography: Bibliography: leaves 160-170.
General Note: Typescript.
General Note: Vita.
Statement of Responsibility: by Dennis Dailey Murphy.
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Bibliographic ID: UF00098842
Volume ID: VID00001
Source Institution: University of Florida
Holding Location: University of Florida
Rights Management: All rights reserved by the source institution and holding location.
Resource Identifier: alephbibnum - 000089049
oclc - 05697768
notis - AAK4429


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Copyright 1979


Dennis Dailey Murphy


The writer wishes to express his sincere thanks to

the members of his dissertation committee, Dr. James L.

Wattenbarger, Dr. Linda M. Crocker, and Dr. Vynce Hines,

retired committee member, for their help and assistance,

and especially to his committee chairman, Dr. S. Kern

Alexander, Jr., for his steadfast encouragement and guid-


The writer further wishes to express his heartfelt

gratitude to his wife, Joni Lynn, and his son, John-Partick,

for their love and support.



ACKNOWLEDGMENTS . . . ... . . . . . iii

ABSTRACT . . . . . . . . . . . v


I INTRODUCTION . . . . . . . . 1
Statement of the Problem . . . . 2
Justification for the Study . . . 2
Scope of the Study . . . . . . 4
Assumptions . . . . . . . 4
Definition of Terms . . . . . 5
Sources of Data . . . . . . 6

Introduction . . . . . . . 7
The Meaning of State Action: Jurispru-
dence and Policy . . . . . . 7
The Meaning of State Action: Theories 13
The Meaning of State Action: Other
Considerations . . . . . . . 16
Summary . . . . . . . ... .23

Introduction . . . . . . . 25
The Operation of State Action: State
Action Categories . . . . ... 25
Direct State Action . . . ... .26
State Involvement . . . . . 30
State affirmative privity . . . 31
State regulation . . . . .. 37
State aid . . . . . ... 39
Public Function ... . . . . .42
42 U.S.C. 51983 Custom Cases . . . 46
The Operation of State Action: Other
Considerations . . . . . ... 50
Summary . . . . . . . . 56

Introduction . . . . . . ... 58
The Meaning of "Due Process of Law":
Background . . . . . . ... 58

The Meaning of "Due Process of Law":
Analysis . . . . . . ... 63
Constitutionally Cognizable Interests 63
Operational Duality . . . . . 72
Relationship with the Bill of Rights . 81
Summary . . . . . . . .. 85

Introduction . . . . . . 86
The Operation of "Due Process of Law":
Background . . . . . . . 86
The Operation of "Due Process of Law":
The Milieu . . . . . . ... 87
The Operation of "Due Process of Law":
Cases . . . . . . . . . 97
Procedural Due Process . . . . 97
Institutional employees . . ... 98
Public education institutions:
state action not at issue .... 99
Nonpublic educational institutions:
state action at issue . . . 104
Institutional clients . . ... 107
Public educational institutions:
state action not at issue . ... 107
Nonpublic educational institutions:
state action at issue . . . 116
Substantive Due Process . . ... 124
Institutional employees . . ... 125
Institutional clients . . ... 129
Summary . . . . . .. .. .. 134

VI CONCLUSIONS . . . . . . . . 136
Introduction . . . . . . . 136
Implications for Educational Administra-
tion . . . . ... . .. . 139
The Functioning of Law: "Law in the
Books" and "Law in Action" . . . 140
The Functioning of Educational
Institutions: Theory and Practice . 144
Summary . . . . . .. .. .. 159

BIBLIOGRAPHY . . . . . . .. .. . .. 160

BIOGRAPHICAL SKETCH . . . . . . . . 171

Abstract of Dissertation Presented to the Graduate Council
of the University of Florida in Partial Fulfillment of the
Requirements for the Degree of Doctor of Philosophy



Dennis Dailey Murphy

March 1979

Chairman: S. Kern Alexander, Jr.
Major Department: Educational Administration & Supervision

The problem investigated in the study was whether and

to what extent there has occurred or is occurring judicial

redefinition of state action in regard to due process

issues in nonpublic educational institutions. Detailed

investigation through comprehensive legal research methods

focused primarily upon the United States Constitution, as

amended, and court cases, particularly those of the United

States Supreme Court. Conceptual perspective on the meaning

of state action was gained through analysis of jurispruden-

tial and policy considerations, state action theories, and

other considerations. Contextual perspective on the opera-

tion of state action was gained through analysis of state

action categories and other considerations. Conceptual

perspective on the meaning of due process was gained through

analysis of the concept's history, the constitutionally

cognizable interests of liberty and property, the opera-

tional duality of procedural and substantive due process,

and the relationship of due process with the Bill of Rights.

Contextual perspective on the operation of due process was

gained through analysis of the broader milieu and the

narrower milieu, and through detailed inspection and

analysis of due process cases. Procedural and substantive

due process cases involving public and nonpublic institu-

tional employees and procedural and substantive due process

cases involving public and nonpublic institutional clients

were closely examined. It was shown that only procedural

due process cases involving nonpublic institutional clients

could indicate any judicial redefinition of state action in

regard to due process issues in nonpublic educational

institutions. It was concluded that expansive redefinition

had not occurred and was not occurring, although implica-

tions for educational administration of a possible

redefinition were still important.



Nonpublic educational institutions are similar but

not identical to their public counterparts. The defini-

tional distinction focuses upon the degree of government

involvement with the institutions. Among the important

consequences of this distinction has been the application

or nonapplication of federal constitutional restrictions

to the institutions.

The fourteenth amendment and its restrictions

ostensibly apply only to a state:

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; nor deny
to any person within its jurisdiction
the equal protection of the laws.1

The amendment's due process restrictions upon adminis-

trative action would seem to apply only where that action

is state action. It would seem to apply to public educa-

tional institutions, then, but not to nonpublic institutions.

U.S. Const. amend. XIV (emphasis added).

Judicial redefinition of the restriction-triggering state

action concept to encompass not only direct actions of the

state but also actions not directly attributable to the

state, complicates simple "plain meaning" interpretation.

Statement of the Problem

The problem investigated in the study was whether and

to what extent and effect there had occurred or is

occurring judicial redefinition of state action in regard

to due process issues in nonpublic educational institutions.

Derivative points of inquiry necessarily included the cir-

cumstances and rationale that could produce such redefini-

tion, the scope of such redefinition, and the implications

of such redefinition for educational administration.

Justification for the Study

Educational administrators must be aware of the legal

limitations and restrictions that circumscribe their

actions. This is true no less in nonpublic than in public

educational institutions. Nonpublic educational administra-

tors, however, may not know whether fourteenth amendment

due process restrictions apply to their actions. They are

even less likely to understand why due process restrictions

do or do not apply. The primary purpose of the study was to

provide the needed knowledge and understanding.

The problem investigated in the study was important,

and its pursuit justified, in a larger context, as well.

For a nonpublic educational institution, consequences of a

finding of state action and the imposing of fourteenth

amendment restrictions and standards of due process range

from implementation of potentially expensive procedural due

process machinery for students, or for faculty and other

employees, to alteration of institutional prerogatives of

internal governance, to modification of institutional

purpose. Such changes in matters from resource allocation

to institutional philosophy would necessarily be of great

moment for any theretofore nonpublic educational institution.

Many nonpublic educational institutions already provide

procedural safeguards from arbitrary administrative action,

of course, but the standards of fairness and the rigor with

which individual interests are protected vary from institu-

tion to institution.

In view of the implications for educational institu-

tions and educational administrators of state action

development and redefinition, a study of state action in

the educational context focusing upon due process issues

was worthwhile. Conclusions could be helpful to educators

for both operational and planning purposes.

Scope of the Study

Reflected in the study were the raw data of legal

research, the United States Constitution, as amended,

statutes, published court opinions, and published adminis-

trative decisions. Such data promulgated or rendered since

adoption of the United States Constitution in 1789 were

considered acceptable. Reflected also was authoritative

opinion published in books, legal journals and law reviews.

Analysis of these data in the study was delimited

primarily by general focus upon the three clauses of the

fourteenth amendment of the United States Constitution, the

privileges or immunities, equal protection, and due process

clauses, with specific focus and emphasis upon the last.

Emphasis upon alternative theories and remedies under state

law for due process complaints was beyond the scope of the

study. Analysis of implications for educational administra-

tion of a redefinition of state action in regard to due

process issues in nonpublic educational institutions drew

upon the published works of legal theorists as well as

theorists of administration generally and educational admin-

istration specifically.


It was assumed that the judicial doctrine of stare

decisis elicits evolutionary development of legal concepts

through judicial opinion.

Definition of Terms

Certiorari. Review, on a discretionary basis, by a

higher appellate court of a lower court's handling of a


De facto. A situation that exists in fact, whether or

not lawful.

De jure. A situation that exists by operation of law.

Dictum. Language in a court opinion on a point of law

not necessary to the decision at hand and not binding as


In loco parents. In the authoritative place of the


Nonpublic. Private, nongovernmental.

Nonpublic educational institution. Nonproprietary

educational institution of elementary, secondary, or post-

secondary level which is not operated by a state, subdivision

of a state, or governmental agency within a state.

Parens patriae. The sovereign power of guardianship by

the state over persons under disability, including minors.

Precedent. Authoritative decision on a point of law to

be followed in similar cases arising subsequently.

Proprietary. For profit.

Public educational institution. Nonproprietary educa-

tional institution of elementary, secondary, or post-

secondary level which is operated by a state, subdivision of

a state, or governmental agency within a state.

Societal institution. A complex of crystallized,

definitive and enduring norms and roles regarded as

essential for the society.

Stare decisis. Adherence to precedent in judicial


Ultra vires. Beyond the power of an agency or


Sources of Data

Use of a combination of primary and secondary legal

sources constituted the legal research method of the study.

Primary sources were statutes, and court and administrative

agency decisions, identified by use of legal digests, legal

encyclopaedias, annotated federal and state statutes, and

the precedential citation system. This last system,

commonly known as Shepard's Citations enables the legal

researcher to find all cases subsequent to a given case

which cite that case as precedent, as distinguishable, or

generally as worthy of mention in the resolution of those

subsequent cases. Secondary sources comprised books, legal

journals, and law reviews, identified by use of the Index

of Legal Periodicals, and by reference made in cases,

annotated statutes, and other books and periodical articles.

Sources for administrative theory included books and

administration or education journals.




State action is a judicially created notion, a legal

concept. It is not easily defined in the abstract, however

One commentator went so far as to assert that it is

"entirely contextual, and has no independent existence."1

To be sure, state action has been judicially developed on

a case-by-case basis. Contextual perspective accordingly

forms the basis of Chapter III. Conceptual perspective,

taking account of general jurisprudential and policy con-

siderations, is no less helpful in fostering understanding

of the concept, of course; it serves to make contextual

perspective more easily achieved and more broadly meaning-


The Meaning of State Action: Jurisprudence and Policy

The major conceptual issue in state action cases is

whether fourteenth amendment restrictions will be triggered

Note, State Action and the Burger Court, 60 Va. L.
Rev. 840, 841 (1974).

by a finding of state action as a matter of law. The over-

riding policy issue is the extent to which federal con-

stitutional restrictions should be a "hedge upon private

actions."2 Complicating resolution of these issues is the

task of defining "state action," a difficult one for

judges, lawyers, and legal scholars alike.

In an attempt at clarifying the definitional dimensions

of state action, the United States Supreme Court has stated:

This Court has never attempted the
"impossible task" of formulating an
infallible test for determining
whether the state "in any of its
manifestations" has become significantly
involved in private discrimination.
"Only by sifting the facts and weighing
circumstances" on a case by case basis
can a nonobvious involvement of the
state in private conduct be attributed
its true significance.3

Use of a low, contextual level of abstraction is help-

ful in that it permits classification of state action

cases into categories, but not so helpful in that it fails

to facilitate formulation of any pithy definition of state

action. Indeed, the only arguably helpful definition of

state action which does not focus upon specific facts is a

conceptual tautology: state action is that public or

ostensibly private activity which permits application of

J.N. Story & L. Ward, Perspectives of American Law
105 (19174--

Reitman v. Mulkey, 387 U.S. 369, 378 (1967).

fourteenth amendment restrictions to it. Moreover,

"nominally private action may well be deemed governmental

for constitutional purposes, but remain legally private for
all other purposes."

Perhaps more helpful would be mention of what state

action is not. State action, as the term is used here, is

not identical with government action. Government action

would encompass federal as well as state activity. Although

the federal government can have similar connections with

private conduct to those of state governments, and although

through the Bill of Rights the federal government is under

similar constitutional restraints, it is nevertheless not

subject to operation of the fourteenth amendment. The legal

concept of state action derived from that amendment is thus

not applicable to the federal government.

Another perhaps helpful approach to achieving some

measure of definitional clarity to the state action concept

would be to note its manner of association with other legal

concepts. It will be recalled that the fourteenth amend-

ment prohibits state action which abridges the privileges or

immunities of citizens of the United States, or deprives any

person of life, liberty, or property, without due process of

law, or denies any person the equal protection of the laws.

State action, then is associated with the other fourteenth

4Martin, The NCAA and the Fourteenth Amendment, 11 New
Eng. L. Rev. 383, 393 (1976).

amendment concepts of "privileges or immunities," "due

process," and "equal protection."

Judicial treatment of the privileges or immunities

clause has contributed little to the development of the

state action concept. The clause has been held to such

narrow applicability that few cases have arisen thereunder.5

In going from the abstract to the concrete, from the con-

ceptual to the contextual, courts have used other clauses.

Those other clauses have been the due process and equal

protection provisions of the fourteenth amendment. Most of

the cases which have contributed in major ways to the

development of the state action concept have arisen under

equal protection.6 Still, state action is the threshold

issue in cases arising under any of the three clauses; the

finding of state action is a procedural condition precedent

to a court's hearing of the merits of a fourteenth amendment


From a jurisprudential perspective, it may be seen that

the state action requirement in equal protection and due

process cases is no more unitary than the requirement that

violation of specific due process or equal protection

derivative rights be asserted.7 Due process and equal

5See The Slaughter-House Cases, 16 Wall. 36 (1873).

Van Alstyne & Karst, State Action, 14 Stan. L. Rev. 3,
4 (1961).

71d. at 7.

protection requirements exist for different reasons:

These verbal formulations are simply an
awkward shorthand to describe a multi-
plicity of interests which compete for
respect in each case. Among these
interests are several which are func-
tionally related to the presence or
absence of participation by a govern-
ment in the alleged constitutional
invasion. Thus while the search for a
merely formal connection--for "state
action"--is misleading, the search for
the values which stand behind the state
action limitation is indispensable.8

Among the values implicit in the framing of the

fourteenth amendment were, according to another commentator,

not only protection against arbitrary government action--a

key element of due process--but also "pluralism, individual

autonomy, prerogatives of private property, and free and

natural adjustment" by society to the inevitable changing

of circumstances. Consideration of such a number of dif-

ferent values indicative of interests, and choosing among

competing values lead logically to balancing of those

interests in light of the facts of specific cases. Not sur-

prisingly, then, the jurisprudential perspective generative

of clearest insight is that of policy.

Value choosing becomes interest balancing. Interest

balancing writ large is policy making. Among the variables


Note, State Action: Theories for Applying Constitu-
tional Restrictions to Private Activity, 74 Colum. L. Rev.
656 (1974).

weighed in the balancing and thus determinative of policy

via state action analysis are degree of government involve-

ment, offensiveness of the conduct, and, notably, the

value of "preserving a private sector free from the consti-

tutional requirements applicable to government institutions."0

Governmental involvement, then, does not automatically

bring constitutional restraints to bear upon private

individuals "absent some policy reason why certain types of

involvement should carry along constitutional restrictions."1

Policy is the key.

Judicial devices analogous to state action and also

representative of policy making have long existed in the law.

Courts are not always reluctant to "look beyond the facade

of a particular activity or institution for purposes of

examining its actual components."12 Conduct lawful on its

face may by such scrutiny be held unlawful.

Courts, for example, can "pierce the corporate veil"

to determine whether a corporation is being used for

illegal purposes or fraudulent activities. Another example

of this type of judicial device involves land use controls.

Courts can "pierce" the facade resulting from the enacted

10Wahba v. N.Y.U., 492 F.2d 96, 102 (2d Cir. 1974).

1Note, supra note 9, at 659.

12Note, Student Due Process in the Private University:
The State Action Doctrine, 20 Syr. L. Rev. 911, 914 (1969).

and official definition of a particular use, and scrutinize

the nature of the actual activity to decide whether it is

in fact in accordance with the zoning ordinance applicable

to it.13 A final example, more closely related to state

action conceptually, is sovereign immunity from tort lia-

bility. Courts allow piercing of the shield of immunity if

the activity is found to be proprietary rather than govern-

mental in character.14

The Meaning of State Action: Theories

Faced with a welter of cases involving the threshold

issue of finding state action, commentators have proposed

various theories both to explain otherwise irreconcilable

case holdings and to offer analytical frameworks designed

to foster consistency in future state action cases. One

theory is predicated upon formal ties between an ostensibly

nonpublic institution and the state, ties such as financial

aid or certification. State action would be one consequence

of such ties.15 A second asserts that even formal ties

would not give rise to state action unless the institutional

purpose of the ostensibly nonpublic entity could be

14K. Alexander, R. Corns, & W. McCann, Public School
Law 356 (196-

150'Neil, Private Universities and Public Law, 19 Buff.
L. Rev. 155, 156 (1969).

characterized as public.16 A third set of theories advances

the proposition of interest balancing, whereby the interests

and rights denied a person would be balanced against the

interests of the nonpublic entity.17 As indicated earlier,

value choosing and consideration of policy are inherent in

such theories.

The policy consideration may be inherent in the

interest balancing approach, but such a concern, though

overriding, is often unstated. One commentator noted:

There is a need to maintain the constitu-
tional integrity of government resources,
to protect against misuse by private
persons of powers or aid received from
government, and to protect against use by
government of private individuals to
accomplish government objectives without
constitutional restraint. . The
problem of defining the line between
"state" and "private" action may indeed
be one of balancing these constitutional
interests against the interest of private
persons in freedom of choice and use of

Other scholarly opinion can be seen as converging to

varying degrees upon these ideas. One commentator embraced

the balancing approach, weighing the nonpublic party's

rights of property, privacy, association, and liberty of

16Lewis, The Meaning of State Action, 60 Colum. L. Rev.
1083 (1960).

17See Horowitz, The Misleading Search for "State Action"
Under the Fourteenth Amendment, 30 So. Cal. L. Rev. 208 (1957).

18Note, supra note 9, at 656-57 (footnotes omitted).

action against the interest of the victim in not having the

state support denial of his own rights.19 It is worthy of

note that these listed rights of the nonpublic party

coincide with those protected by the due process clause.

More simply, perhaps courts should find state action

only after weighing the private interest in particular

discrimination or activity against the public interest in
the elimination of that discrimination or activity.2 More

comprehensively, perhaps courts should find state action as

a matter of course whenever it is the threshold issue, and

then limit the effects of such a finding through other
doctrines or identification of other interests.2

One result of an extension such as the latter could be

the finding of state action in certain circumstances in

which the state had a duty to act, but did not; the state's
inaction, then, would amount to state action.22 This may be

appropriate in situations involving deprivation of voting or

other fundamental rights,23 but generally not:

1Henkin, Shelley v. Kraemer: Notes for a Revised
Opinion, 110 U. Pa. L. Rev. 473T (962).
2 Williams, The Twilight of State Action, 41 Texas L.
Rev. 347 (1963).
2Black, Foreword: "State Action," Equal Protection
and California's Proposition 14, 81 Harv. L. Rev. 69 (1967).
2J.N. Story & L. Ward, supra note 2, at 107.

2 Terry v. Adams, 345 U.S. 461 (1953).

If private action has resulted in a
general and serious denial of values
the amendment was meant to protect,
an answer that the state has merely
failed to prevent this will not

The Meaning of State Action: Other Considerations

In order to deal with any case, a court of law must

have jurisdiction and the case must be justiciable. These

are terms of art, as state action is a term of the legal

art. Similarly, just as a judicial finding of state action

is the condition precedent to application of the fourteenth

amendment, the court having competent jurisdiction and the

case being justiciable are conditions precedent to the

operation of the adjudicatory machinery itself. This is

important because "the practical value of a constitutional

right is no greater than the procedure which exists to

vindicate it."25

State judicial systems include courts of general juris-

diction which can hear cases with issues that arise from a

large range of questions dealing with legal substance and

procedure. As long as there is an alleged injury to relieve

or a claimed right to declare, the case will be one which

24Friendly, The Dartmouth College Case and the Public-
Private Penumbra, 12 Texas L 1, 18 (Supp. 1971).
251 T. Emerson, D. Haber, & N. Dorsen, Political and
Civil Rights in theUnited States 47 upp. 1973).

can be adjudicated, one that is justiciable. This allows

adjudication of federal fourteenth amendment issues as well

as those deriving from alternative state law permitting

alternative remedies.26

The federal judicial system, however, is subject to

the limitations of Article III of the Constitution, restrict-

ing federal court jurisdiction to "cases" and "controversies."

The article further grants Congress power to circumscribe or

clarify the judicial power. One statute made thereunder is

28 U.S.C. 1343(3), which establishes specific jurisdiction

for fourteenth amendment cases:

The district courts shall have original
jurisdiction of any civil action
authorized by law to be commenced by
any person . to redress the
deprivation, under color of any State
law, statute, ordinance, regulation,
custom or usage, of any right, privilege
or immunity secured by the Constitution
of the United States or by any Act of
Congress providing for equal rights of
citizens of all persons within the
jurisdiction of the United States.

The "under color of any state law" phrase is generally con-

sidered equivalent to state action under the fourteenth

amendment,27 and appears both in this jurisdictional statute

and in the substantive statute often used in conjunction

with it, 42 U.S.C. 1983, discussed in Chapter III.

26Rendleman, The New Due Process: Rights and Remedies,
63 Ky. L. J. 531, 671 (1975).

27Note, supra note 9, at 656 n.4. But see Rendleman,
supra note 26, at 671.

After statutory federal question jurisdictional require-

ments are met, the cases and controversies limitation blends

into a question of the justiciability of the particular case

or controversy. Justiciability reflects a dual limitation

upon federal court jurisdiction. First, questions must be

presented to a federal court in an adversary context and in

a form viewed historically as amenable to resolution by the

courts. Second, considerations of the separation of powers

among the federal government's three branches dictates that

the question presented be a legal, not a political question.28

With justiciability lies the question of standing. The

focus is upon the party seeking to get his complaint before

a court rather than upon the issues or merits of the com-

plaint. "The law of standing is designed to limit the class

of persons who are eligible to trigger the process of

judicial review."29 The party must allege a personal stake

in the outcome of the case. The rationale is the need for

genuine adverseness to sharpen and clarify the legal issues,

the contentiousness necessary to keep adjudication within

the confines of the adversary process at the heart of Anglo-

American law.30 Even so, standing is usually an issue only

28Flast v. Cohen, 392 U.S. 83 (1968).
291 T. Emerson, D. Haber, & N. Dorsen, supra note 25,
at 474.
30Flast v. Cohen, 392 U.S. 83 (1968); Roe v. Wade, 410
U.S. 113 (1973); Sierra Club v. Morton, 405 U.S. 727 (1972).

in federal court cases, the test being whether the interest

the plaintiff seeks to protect is arguably within the zone

of interests protected or regulated by the statute or con-

stitutional provision in question; state courts typically

follow the more direct test of injury in fact, a test some

see as replacing the zone test in federal courts.31

A related restriction is ripeness. Ripeness requires

that a controversy proceed to a point where court adjudica-

tion is appropriate before judicial machinery is called into

action. Cases or controversies must be real, present, or

imminent, not abstract, hypothetical, or remote.32

Although ripeness is sometimes an issue when federal

or state courts are asked to hear cases appealed from admin-

istrative agencies such as school boards and college boards

of trustees, two other limitations derive from administra-

tive law. These are primary jurisdiction and exhaustion

of administrative remedies. The former determines which of

two tribunals, the court or the agency, both having juris-

diction, should act first; the latter governs the timing

of judicial review of administrative action. Both doctrines

exist to coordinate the workings of judicial and quasi-

judicial bodies, but exhaustion is the more important

because it requires that all levels of appeal be taken

K.C. Davis, Administrative Law and Government 72-80
Id. at 81; Abbott Laboratories v. Gardner, 387 U.S.
136 (1967).

within the administrative structure itself before appeal to

a court is made. It should be noted, however, that those

who seek relief under 42 U.S.C. 51983 are not bound by the

exhaustion requirement if their constitutional challenge is

sufficiently substantial.33

Another jurisprudential consideration appropriate here

is that of remedies. The foregoing discussion would be

meaningless were it not for the possibility of relief for a

plaintiff; the remedy question is generally foremost in the

minds of plaintiffs and central to the dispute- and conflict-

resolution purposes of courts.

Conceptually, two basic remedy patterns may be found

in state action cases. The first is found when suit is

brought against the state to enjoin its connection with or

support of the challenged public or ostensibly nonpublic

activity. The second is found in suits brought to enjoin

the challenged activity itself. These patterns are closely

related to the categories of state action cases, the focus

of Chapter III.

In either pattern a finding of state action would pro-

vide a federal court the necessary jurisdiction for the

framing of an appropriate remedy. Ostensibly nonpublic

activity, however, is rarely enjoined; severance of state

3K.C. Davis, supra note 31, at 84-95; Myers v. Bethlehem
Shipbuilding Corp., 303 U.S. 50 (1938); King v. Smith, 392
U.S. 309 (1968).

involvement in such activity is usually ordered. This is

the usual remedy even if the complaint has requested specific

injunctive relief against the nonpublic activity found to be
state action. The choice of relief has important conse-


Once the severance remedy has been
effected, state involvement as a basis
for state action can no longer be said
to exist, the private actor is regarded
as totally independent, and no injunc-
tive relief is ordered against the
practices of the private institution

In order to gain injunctive relief against the non-

public activity and entity involved, the plaintiff must

show not just state involvement; such an unusually high

degree of involvement must exist that the state be found to

have become a "partner" or "joint venturer" in the otherwise

nonpublic activity.37 This remedy is especially appropriate

in cases wherein the ostensibly nonpublic entity is per-

forming a public function with sufficient attributes of

sovereignty to be deemed engaged in a special form of state


3Antoun, State Action: Judicial Perpetuation of the
State/Private Distinction, 2 Ohio No. U. L. Rev. 722, 725




A caveat is in order, however. In certain situations

where a finding of "joint venturer" is warranted and

enjoining of the activity theoretically appropriate, other

constitutional provisions prevent such relief.38 Severance

is thus the remedy in cases involving aid to parochial

schools. The Supreme Court has chosen in such cases to

focus not upon state action per se, but upon provisions of

the first amendment, the establishment clause in particular,

as incorporated into the fourteenth amendment's due process

This incorporation will be discussed in detail in

Chapter IV, but it should be noted here that state action

contravening such incorporated proscriptions cannot stand.

The focus in such cases is whether aid "establishes"

religion rather than whether the state's involvement trans-

forms otherwise clearly nonpublic conduct into public con-

duct as a matter of fact and law. Moreover, enjoining the

private activity itself would seem a direct contravention
of the right of private schools to exist,40 or at least

inconsistent with first amendment free exercise of religion.41

38Id. at 726.


40Pierce v. Society of Sisters, 268 U.S. 510 (1925).

4Note, supra note 9, at 702 n.281.

The final consideration reflects in a more contextual

way the conceptual nuances of state action. State action

may arise not only in nonpublic educational institutions,

but also in private associations related to education. Thus,

the National Collegiate Athletic Association (NCAA) can be

viewed as engaging in state action, and thus be required to

provide equal protection and due process to affected

students, because of its relationship with public institu-
tions. Similarly, other nonpublic organizations such as

Educational Testing Service and the College Entrance Examin-

ation Board, private agencies neither politically responsible

nor formally accountable to the public, wield great power

over students of both public and nonpublic institutions;43

state action can be argued.

These kinds of issues blend into the contextual realm.

Perhaps the most helpful approach to contextual investiga-

tion is through the categorization of cases, the primary

focus of Chapter III.


Conceptual perspective on state action begins with

recognition that state action is a judicially created, but

4Martin, supra note 4, at 393; cf. Buckton v. NCAA,
366 F. Supp. 1152 (D. Mass. 1973).
4 Cohen, Reforming School Politics, 48 Harv. Ed. Rev.
429, 431 (1978).


difficult to define, legal concept derived directly from

the fourteenth amendment. Implicit in state action analysis

under any of several theories are the underlying policy

considerations of values and interests relative to the

extent to which federal constitutional restrictions are and

should be a hedge upon private actions. Before a court can

address the threshold issue of state action in any case,

much less afford a remedy, it must have jurisdiction and the

case must be justiciable.




State action is, as noted, a legal concept. Just as

administrative theory is tested and fleshed out by being

put into practice, so too do legal concepts acquire sub-

stance by being applied in concrete situations. Full

understanding of the state action concept can be achieved

only through such contextual perspective. Judicial redefi-

nition of state action, furthermore, can be discerned only

through this focus.

The Operation of State Action:
State Action Categories

The major contextual issue in state action cases is

whether the court can discern sufficient connection between

the nonpublic activity in each case and a state to support

a finding of state action as a matter of fact. Judicial

resolution of this basic issue is perhaps best seen in

terms of several categories of state action cases.

At a level of abstraction at once high enough to pro-

vide further conceptual insight into judicial definition of

state action and low enough to indicate the types of

factual situations that affect that definition contextually

through the concrete operation of courts, four primary

categories of state action cases may be identified. The

first reflects cases wherein the state acts directly, the

kind of "state action" the plain meaning of the words of the

fourteenth amendment denotes. The second reflects those

cases wherein the state is significantly involved in some

otherwise private or nonpublic activity. The third reflects

cases wherein a private entity performs a public function.

The fourth reflects cases wherein custom may give rise to

state action claims via the Civil Rights Act of 1871, 42

U.S.C. 51983.

Direct State Action

The fourteenth amendment was, not illogically, first

applied to clearly governmental actions taken by instru-

mentalities of state governments. Though some commentators

would limit the state action concept to application to

ostensibly nonpublic activities, and therefore call "state

action" a "misnomer,"1 the literal meaning of the term

cannot be ignored. This first category of state action

cases, then, reflects cases that were first both logically

and chronologically.

O'Neil, Private Universities and Public Law, 19 Buff.
L. Rev. 155, 168 (1969).

The Civil Rights Cases2 forced the Supreme Court to

grapple with the incipient state action problem. There the

Court embraced a public/private distinction, the majority

contending that private parties are inherently incapable of

denying other private parties their constitutional rights.

Recognizing that private parties could perpetrate private

wrongs upon their fellow citizens, the Court viewed these as

mere assaults. Such assaults could deter the exercise of a

right, but would not thereby become unconstitutional.

Justice Harlan dissented, rejecting the public/private

distinction upon which the majority reasoning depended.

His alternative rationale evinced high regard for what he

perceived as the purpose of the fourteenth amendment. Since

he identified that purpose to be the elimination of wrongs

committed against black Americans, he did not deem the

particular words of the amendment literally controlling.

This particular "plain meaning, plus" view has never been

embraced by a majority of the Court, and had repeatedly been

rejected prior to Harlan's dissent.3

It should be noted that one policy basis of the

majority opinion was fear of expansion of federal power, a

fear "no longer a primary influence in the state action

109 U.S. 3 (1883).

3See United States v. Harris, 106 U.S. 629 (1882);
United States v. Cruikshank, 92 U.S. 542 (1875).

inquiries."4 At the time, however, judges were mindful

that prior to the fourteenth amendment, "there were very

few constitutional restraints on the actions of the states."

The fundamental issue was the striking of a practicable

balance among the powers and protections of the federal

government, the states, and the people. This issue will be

further explored in Chapter IV.

Legislative state action is perhaps the purest form of

direct state action. The landmark case in the area is

Plessy v. Ferguson. There the Supreme Court held that a

Louisiana statute segregating railroad passengers by race

did not constitute unreasonable discrimination under the

fourteenth amendment's equal protection clause if the

accommodations, though separate, were equal. De jure racial

segregation, being thus sanctioned by the highest court in

the land, became deeply embedded in the southern and border

states. In no sphere of direct governmental activity was

this more apparent than in public educational institutions

at all levels.

The assault upon de jure racial segregation was con-

ducted primarily in the federal judicial arena, with states

Note, Legislative State Action and Indiana Private
Universities, 9 Val. L. Rev. 611, 612 n.4 (1975).
A. Morris, The Constitution and American Education 45
6163 U.S. 537 (1896).

usually trying to defend their educational segregation in

the face of the fourteenth amendment's equal protection

clause. The precedential force of Plessy began to weaken

in the higher education cases, setting the battleground for

the most critical clash of all.

The watershed case for legislative state action and

equal protection in public education was Brown v. Board of

Education.8 The year was 1954. A unanimous Supreme Court,

in an opinion written by Chief Justice Earl Warren, declared

that separate educational facilities were inherently un-

equal. Those school systems established pursuant to de jure

segregation policies operated in violation of the equal

protection clause.

Due process cases, discussed in Chapter V, are also

found in this direct state action category. These generally

deal with situations in which the actor, while not the

legislature itself, is still a governmental instrumentality.

Municipal corporations and state universities, for example,

are recipients of a quantum of sovereignty by delegation

from the legislature or through the state constitution. The

threshold state action issue in such cases, as in all cases

7Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938);
Sweatt v. Painter, 339 U.S. 629 (1950); McLaurin v. Okla.
State Regents, 339 U.S. 637 (1950). But see Berea College
v. Commonwealth of Ky., 211 U.S. 45 (1908).
347 U.S. 483 (1954).

of this first category, is quickly resolved on its face,

allowing the court to reach the merits of the particular


State Involvement

The threshold state action issue is never so simple in

cases where the state is involved in otherwise nonpublic

activity. The question becomes one of degree, with focus

upon whether the state is sufficiently connected with the

otherwise nonpublic activity to warrant state action inquiry.

The connection sought varies, of course, with the case, but

gives rise to three involvement subcategories. These,

discussed separately below, reflect cases wherein the state

was in affirmative privity with the otherwise nonpublic

activity, cases wherein state regulation provided the nexus

between the state and the activity, and cases wherein state

aid provided that nexus.

Though the subcategories are conceptually severable,

in most cases the plaintiff averred the existence of state

action by a combination theory of involvement. However,

one commentator noted that:

Although each type of involvement may
be cumulated to satisfy the state action
requirement, a recent decision indicates
that the Court is unwilling to find
state action where no one theory advanced
is independently persuasive. This is
especially true where, after reciting and
combining all state connections, there is
still no showing that the state is

sufficiently involved in the particular
challenged private activity.9

This posture perhaps runs counter to education cases

imputing state action to the National Collegiate Athletic

Association (NCAA), a "private and voluntary unincorporated

association comprising the majority of American four-year

colleges and universities with athletic programs."10

Courts in these cases generally combined notions of public

function and financial support through payment of dues by

public institutions in order to find state action; neither

notion standing alone was deemed sufficient. Such com-

bination cuts across this second category of state involve-

ment and the third category, discussed below, of public

function, but is still combination entailing involvement in


State affirmative privity

The involvement subcategory of state affirmative

privity reflects several landmark cases, and demonstrates

9Antoun, State Action: Judicial Perpetuation of the
State/Private Distinction, 2 Ohio No. U. L. Rev. 722, 729-
30 (1975) (footnotes omitted); see Jackson v. Metropolitan
Edison, 419 U.S. 345 (1974).

10Note, The Student-Athlete and the National Collegiate
Athletic Association: The Need for a Prima Facie Tort
Doctrine, 9 Suff. L. Rev. 1340, 1342 (1975).
11See Parish v. NCAA, 506 F.2d 1028 (5th Cir. 1975);
High School Athletic Ass'n v. St. Augustine H.S., 396 F.2d
224 (5th Cir. 1968).

conceptually important judicial approaches to the issue of

state action. A variety of types of cases is subsumed in

this classification.

When the state creates a business monopoly, the

question of applicability of fourteenth amendment restric-

tions to the entity arises. An extreme example of this kind

of affirmative privity exists when the state not only

creates a public utility that is privately owned, but grants

it one of the trappings of sovereignty, the power of

eminent domain. Several United States Courts of Appeals

have held that a state grant of monopoly power constituted

state action,12 but others have held that other factors

must also be considered in the search for state action.1

The Supreme Court finally resolved the conflict.
The Court, in Jackson v. Metropolitan Edison,4 held

that upon the facts of the case the grant of state regulated

and state protected monopoly power to the electric company

defendant did not ipso facto give rise to state action.

Equally important, the Court noted that the specific

challenged activity itself must have been brought about by

the state grant of power, or at least must have been involved

12See Lovoie v. Bigwood, 457 F.2d 7 (1st Cir. 1972).

13See Particular Cleaners, Inc. v. Commonwealth Edison
Co., 457 F.2d 189 (7th Cir. 1972).
14419 U.S. 345 (1974).

with the grant, for state action to arise.15 This point

recurs in state action cases, particularly those of the

involvement category.

Grants of power and rights other than monopoly power

are also made by states as a matter of course. A state

may by statute acquiesce in a private right recognized at

common law, or it may officially expand common law rights.

State action is not likely to be found in the acquiescence

situation, but could be found in the expansion situation.16

The case of Reitman v. Mulkey17 served to clarify the

distinction. Involved was a California constitutional

amendment which, when ratified, annulled the state's fair

housing statutes. Specifically, it protected a property

owner's right to refuse to lease or sell his home for any

reason. A homeowner could thus refuse to sell his home to

a prospective buyer simply because of the latter's race.

The Supreme Court found this legitimizing of discrimination

to constitute state action.

Reitman could be included in the first category of

direct state action cases, but the better focus is upon the

amendment's relationship to otherwise private discriminatory

See Railway Employees Dept. v. Hanson, 351 U.S. 225

1Antoun, supra note 9, at 733.
17387 U.S. 369 (1967).

behavior. Thus,

From a reading of Reitman it does not
appear that the absolute power granted
to private citizens need be the sole
cause of the challenged activity in
racial discrimination cases. It is
probably sufficient to show that the
protected status of the right en-
couraged its unquestioned exercise.18

It was the "commingling of state authorization with the

private act of discrimination"19 that created the state

action in ostensibly private conduct.

A related type of situation is found in the "agency"

case20 wherein the state encourages certain private

activities to advance state policy. Thus state action

could arise from a contractual arrangement whereby a non-

public educational institution provides programs for the


The state may case itself in affirmative privity with

otherwise private activities in ways other than by legisla-

tive or constitutional power grants. Judicial enforcement

of private rights posits similar state action questions. In

18Antoun, supra note 9, at 733.

1Note, supra note 4, at 620.
20Note, State Action: Theories for Applying Constitu-
tional Restrictions to Private Activity, 74 Colum. L. Rev.
656, 680-85 (1974).

21Hendrickson, "State Action" and Private Higher Educa-
tion, 2 J. Law & Ed. 53, 62 (1973).

Shelley v. Kraemer,22 land owners sued to set aside sale of

another's property to blacks in violation of racially

restrictive covenants running with the land. The Supreme

Court conceded that the restrictive covenants involved and

voluntary adherence to them were not illegal per se. Such

covenants could not be judicially enforced, however,

because private discrimination would then become so closely

connected with the state that it would become state action.

As in Reitman, the balancing of interests in property and

nondiscrimination was crucial to the determination of the

threshold state action issue. Similar balances were struck

in education cases for which Shelley provided precedent.23

The leading case of affirmative state privity, one of

the leading state action cases generally, was Burton v.

Wilmington Parking Authority.24 There the Authority, a

state agency, erected and controlled a public parking

building. To generate additional income, the Authority

leased part of the premises to a restaurant proprietor whose

22334 U.S. 1 (1948); cf. Evans v. Abney, 396 U.S. 435

23See Commonwealth of Pa. v. Bd. of Directors of City of
Phila., 353 U.S. 230 (1957); Girard College Trusteeship,
391 Pa. 434 (1958); Commonwealth of Pa. v. Brown, 392 F.2d
12 (3rd Cir. 1968); Coffee v. William Marsh Rice University,
408 S.W.2d 269 (1966); Sweet Briar Inst. v. Button, 280 F.
Supp. 312 (1967).
24365 U.S. 715 (1961).

business practices included refusing to serve blacks. The

Supreme Court formulated a test of cumulative contacts

between the state and the activity, finding state action in

the discrimination. Context is the key to the test, which

retains its vitality despite, as noted earlier, Jackson, a

power grant case. How can cumulative contacts be ascer-


Only by sifting facts and weighing
circumstances can the nonobvious
involvement of the State in private
conduct be attributed its true

Applying this test, the Court found a mutually

beneficial relationship existing between the state and the

ostensibly private discriminating party. The remedy

afforded was the granting of an injunction prohibiting

discrimination in the restaurant. This, it should be noted,

is an example of the rarely granted relief of restraining

the ostensibly private activity itself. Such "partnerships"

or "joint ventures" as the Court found in Burton are the

ultimate cases in affirmative privity, because by definition

the state has to some significant extent become involved in

the ostensibly private activity.

In Gilmore v. City of Montgomery,2 the issue was

whether the city's policy of allowing use of its recreational

2Id. at 722.

26417 U.S. 556 (1974).

facilities by segregated nonpublic schools and groups

affiliated therewith constituted state action. The Court

stated the issue as "whether there is significant state

involvement in the private discrimination alleged,"27 a

question of fact for the District Court to address under the

Burton test. In what was arguably a state aid case, the

Court chose to analogize to Burton rather than to follow

the approach of the state aid cases discussed below as

representative of the third involvement subcategory.

State regulation

Since nearly all forms of private activity are regulated

to some degree by the state under its police power, the

statement in Burton limiting state action to those activities

to which state contacts were significant is particularly

meaningful in cases of the state regulation subcategory.

The judicial test in such cases asks whether "substantial"

regulations involve the challenged activity.28

One test of substantiality is whether the regulation

in question fosters or encourages the challenged activity.

Such a test is reminiscent of some of the affirmative

privity cases of the first involvement subcategory, and may

be considered as having similar limitations: "regulation

271d. at 573.

2Antoun, supra note 9, at 730.

which falls short of fostering or approving the challenged

activity will rarely be considered state action."29 The

test was used by the Court in the most recent regulation

case of note, Moose Lodge Number 107 v. Irvis.30 There the

Court deemed liquor licensing insufficient involvement to

give rise to state action.

Unlike the affirmative privity relationship, state

regulation, even initial incorporation or chartering under

state law, restricts rather than supports private activity.

The interest balancing and thus the policies undergirding

the power grant, agency, and judicial enforcement cases are

inapplicable to regulation cases.31 Furthermore,

Perhaps because courts have not
analyzed the meaning of government
involvement through regulation,
they have failed to develop any
apparent policy bases for presuming
constitutional involvement upon

However slippery the policy footing in the regulation

cases, it is clear that more than mere regulation is needed

in order to impute state action. State regulation of

private educational institutions' curricula or educational

30407 U.S. 163 (1972); see CBS v. Democratic Nat'l
Comm., 412 U.S. 94 (1973).
Note, supra note 20, at 685.
32 d. at 689.

standards is thus an insufficient foundation upon which to

base state action claims. Statewide coordinating and

planning, or "1202" commissions, as well as master plans

themselves for all higher education within a state similarly

lack the required substantiality.33

State aid

State aid is frequently cited as triggering state

action through state involvement in otherwise private

activity. State aid differs from power grants in that aid

neither creates nor increases the power base of the non-

public entity involved, but rather "assists in the exercise

of that power.34 A dual test emerges:

In resolving state action cases based
upon state aid, the judiciary must
determine whether the state is involved
in a private aid program to some signif-
icant degree, and whether the state
through its aid program is involved in
or fostering the challenged activity.35

In a related but essentially different type of case,

Norwood v. Harrison,36 the state was prohibited from loaning

textbooks to racially discriminatory private schools. The

33Hendrickson, supra note 21, at 69.

34Antoun, supra note 9, at 734. See also Hammond v.
U. of Tampa, 344 F.2d 951 (5th Cir. 1965).

36413 U.S. 455 (1970).

Court focused upon the fostering of discriminatory activity

and expressly rejected any analogy to permissible state

loans of secular textbooks to parochial school pupils.

One form of aid which may not be obvious is tax

exemption. In Griffin v. County School Board of Prince

Edward County,37 tax exemption was held to constitute both

state aid and state action, so that the grant of exemption

to racially discriminatory schools to avoid desegregation
was enjoined. The landmark Walz case, upholding tax

exemptions for religious organizations, seemed to foster

cases "deemphasizing the significance of aid via tax exemp-

tions. 39

A recent Court of Appeals case would seem to deny such

residual effect of Walz, however. In Jackson v. Statler

Foundation,40 the court was faced with a suit brought by a

black minister against charitable foundations alleging

racial discrimination. The majority declared that private

tax exempt foundations are so "entwined" with the state

that their activities may often constitute state action.

State action in such cases would be found if such

foundations were substantially dependent upon their tax

37377 U.S. 218 (1964).

38Walz v. Tax Comm'r, 397 U.S. 664 (1970).

3Note, supra note 20, at 676.
40496 F.2d 623 (2d Cir. 1974).

exempt status, the regulatory scheme was detailed and

intrusive with connotations of state approval, and the

foundation served, as most do, a public function. At least

one commentator saw this case as a direct threat to the

public/private dictum of the Dartmouth College case, dis-

cussed in Chapter V as a legal basis for nonpublic education

in the United States. The Jackson rationale was seen as a

threat to institutional autonomy in nonpublic educational

institutions through the "ubiquitous" character it lent the
state action doctrine.

The Bob Jones University case4 dealt with the same

basic issue specifically in the context of a nonpublic educa-

tional institution. The tax exemption had been granted by

the federal government rather than by a state, but the

consequences flowing from the rationale are not logically

severable on federal/state grounds. Thus, even though the

case was not a fourteenth amendment case and state action

was not an issue, future tax exemption cases involving

states could reflect Bob Jones as precedent.

The Supreme Court decided the case on a procedural

point of federal income tax law but essentially upheld

revised Internal Revenue Service guidelines denying tax

41Note, Private Universities: The Right to be
Different, 11 Tulsa L. J. 58 (1975).
42Bob Jones U. v. Connally, 416 U.S. 725 (1974).

exempt status to nonpublic educational institutions without

racially neutral admissions policies. The second edge of

this double-edged sword is that charitable donors and

contributors to racially discriminating institutions would

then be disallowed deductions for their donations and con-

tributions. The practical financial effect of this is thus

also two-edged: not only will such institutions have to pay

corporate income taxes never paid before, but also extra-

institutional sources of income would in all likelihood dry

up. Administrators in such an institution would be placed

in a double financial bind.

It remains to be seen the extent to which state tax

exempt status accorded nonpublic educational institutions

will change. Other types of state aid, as shown, can also

lead to state action; the point remains, however, that the

usual forms of state aid in the usual amounts are not enough

to create state action.

Public Function

Public function cases constitute the third category.

Unlike the first two categories, no state involvement,

direct or indirect, need be found in these. The essence of

the public function concept is that a nonpublic entity may

by its activities perform a service "so public in nature

that it must be treated as a surrogate of the state for

fourteenth amendment purposes."43 That is, the nonpublic

activity must involve those functions usually performed by

the state.

As will be noted in Chapter V, dictum in the Dartmouth

College case had it that higher education was essentially a

private endeavor. If given continued vitality, this would

seem to preclude this category of state action cases from

applying to nonpublic educational institutions of higher

education. It can be said, however, that education itself

is a public function. Moreover,

The university today, whether private
or state, has come to be a quasi-
public institution in which the needs
of public service, as defined by the
role of the research endeavor (whether
initiated by the government or by the
faculties), becomes paramount in the
activities of the university.44

This specific question will be addressed following discus-

sion of the landmark public function case, Marsh v. Alabama.4

In Marsh a company town which performed municipal

services as any other town attempted to prevent distribution

of religious literature on its sidewalks. Although the town

was in fact private property, the Court held that its

43Antoun, supra note 9, at 735.

44D. Bell, The Reforming of General Education 88 (1966).

45362 U.S. 501 (1946).

citizens had a right to free channels of communication.

Since a de jure municipality could not so infringe upon

such a right because of fourteenth amendment incorporation

of the first amendment freedom of speech through the due

process clause, neither could this de facto municipality.

The company town was, for fourteenth amendment purposes, the

functional equivalent of a state municipality and therefore

shared the constitutional restrictions with the latter.
Though expanded in scope temporarily, the Marsh
rationale has returned to its original narrow strictures.47


Prior to Marsh the rule was clear: if
a governmental unit acted there was
state action, otherwise there was not.
But the line between a governmental and
a private entity became blurred in
Marsh, as the private entity began per-
forming quasi-governmental functions.
In our mixed public-private economy
that blur has been spreading. .
To what extent should the private right
to be arbitrary and unreasonable be
permitted, to what extent should it be
checked? This is the knotty problem
with which the state action doctrine

In regard to nonpublic educational institutions, this

problem is knotty indeed. One equal protection case of

46Amalgamated Food Employees Union Local 590 v. Logan
Valley Plaza, 391 U.S. 308 (1968).

47See Lloyd Corp. v. Tanner, 407 U.S. 551 (1972);
Hudgens v. NLRB, 424 U.S. 507 (1976).

48J.N. Story & L. Ward, Perspectives of American Law 105

note adopted the Marsh rationale in imputing state action

to an ostensibly nonpublic educational institution, but

though carefully reasoned and eloquently expressed, the

opinion proved to have little precedential effect.49 One

subsequent case did speak of a private university's per-

formance of a public function as possibly amounting to state

action when, by failing to keep order, it prevented students

from participation in the education process.50 Appellate

courts, perhaps mindful of the Dartmouth College case dictum

that higher education is a private endeavor, have yet to

apply the Marsh rationale to nonpublic educational institu-


Dictum in another case related both to education and

to the question of remedy in public function cases. Though

the remedy in such cases would be an injunction against the
51 52
nonpublic activity itself, Evans v. Newton cautioned

that some governmental-type functions could be so enjoined,

while others could not. Parks could be enjoined, for

example, from discriminating on the basis of race, but non-

public schools would not give rise to state action

49Guillory v. Administrators of Tulane U., 203 F. Supp.
855 (E.D. La. 1962).

50Belk v. Chancellor of Washington U., 336 F. Supp. 45
(E.D. Mo. 1970).

51Antoun, supra note 9, at 736.
52383 U.S. 296 (1966).

prerequisite to such an injunction. As dictum, this dis-

tinction is not binding upon courts in the future.

Although as a matter of legal mechanics the leading

public function cases focused upon the balancing of rights

and interests, a more basic policy justification underlies

the applying of fourteenth amendment restrictions to

ostensibly nonpublic entities via state action:

Private persons who possess power to
significantly deprive a general
community of rights protected by the
Constitution against state infringe-
ment possess powers equivalent to those
of government. Such private persons
and those exercising peculiarly govern-
mental functions threaten these rights
as effectively as government itself.
Thus, the purposes for which the
constitutional amendments were ratified
justify imposing restraints on the
parties who wield such powers. More-
over, relevant constitutional amendments
may be regarded as limitations not
merely upon government, but upon govern-
mental powers generally.53

42 U.S.C. 51983 Custom Cases

Custom cases, arising not only procedurally through

but also literally because of the Civil Rights Act of 1871,

42 U.S.C. 1983, constitute the fourth category of state

action cases. The rationale in these cases is that the

restrictions of the fourteenth amendment may extend to

"reach private practices which are so uniform throughout a

53Note, supra note 20, at 691.

community or state as to have the practical effect of

law."54 As with public function cases, custom cases do not

require direct state involvement of the second category type

and likewise may afford injunctive relief against the

private party itself.55

The notion of custom "having the force of law" and

being state action as a consequence became judicial prece-

dent in the Civil Rights Cases. The statutory under-

pinning therefore was the "statutory enforcement provision

of the fourteenth amendment"57 embodied in 42 U.S.C. 1983:

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 re-

5Antoun, supra note 9, at 736.
56109 U.S. 3 (1883).

5Antoun, supra note 9, at 737.
5842 U.S.C. 1983 (1970) (emphasis added).

Regardless of category, most state action cases arise

as suits in equity9 under that statute.60 Many specific

education cases have arisen thereunder. As noted earlier,

jurisdiction is supplied by 28 U.S.C. 1343(3). Since

custom category cases are particularly dependent upon the

existence and wording of 51983, discussion of it is in order.

Monroe v. Pape61 established unquestioned federal

jurisdiction over state action cases under both statutes

without regard to citizenship or jurisdictional amount.

The Court pointed out that liability under 1983 runs only

against "persons," a term not including municipal corpora-

tions. The problem complicating the issue was the eleventh

amendment immunity of states to suits in federal courts,

compounded by the "official/person dichotomy" characterizing

the dual legal nature of people who are state officials.62

Later in City of Kenosha v. Bruno,63 the Court ruled that

municipal corporations, and by implication other govern-

mental entities such as school boards, were not "persons"

within the meaning of the statute even if only injunctive

relief and no money damages were sought.

59La Morte, The Fourteenth Amendment: Its Significance
for Public School Educators, 10 Ed. Admin 1. 1 (Autumn 1974).

6Note, supra note 20, at 656 n.4.
61365 U.S. 167 (1961).

62Rendleman, The New Due Process: Rights and Remedies,
63 Ky. L. J. 531, 578 (1975).
63412 U.S. 507 (1973).

These two cases were overruled in a recent case

holding that municipalities and other local government

units were "persons" under the statute after all, thus were

not entitled to absolute immunity from liability under it.

The scope of that immunity which remains may be similar to

the good faith standard applied to school board members in

Wood v. Strickland,65 but at present the issue is undecided.

In a recent education case, Carey v. Piphus, the

Court noted that damages cannot be presumed when the

required procedural due process is denied prior to a pupil

suspension. Denial of the process is, as discussed in

Chapter IV, a constitutional violation, but will warrant

only nominal damages absent proof of actual injury.

Judicial resolution of the jurisdictional and remedial

problems of 1983 has not been fully achieved and is thus

subject to change. In view of the trend toward limiting

federal jurisdiction under the statute,67 and narrowly

circumscribing remedies thereunder, care should be taken by

plaintiffs both to "name the official in question as a

defendant"68 and to prove actual damages.

64Monell v. Dept. of Social Servs. of City of N.Y., 436
U.S. 658 (1978).

65420 U.S. 308 (1975).
66435 U.S. 247 (1978).

67Rendleman, supra note 62, at 671.
681 T. Emerson, D. Haber, & N. Dorsen, Political and
Civil Rights in the United States 492 (Spp. 1973).

What kind of cases arise under the "custom or usage"

language of 42 U.S.C. 1983? The leading case in this

fourth category is Adickes v. S.H. Kress and Company.69

There the Supreme Court struck a public/private distinction

note, pointing out that custom practiced only by private

parties does not have the force of law. This served to

limit severely the custom category of state action cases.

The present rule in custom cases is that the custom or

usage, in order to give rise to state action, need not be

mandated or prescribed by formal state law, but it must be

demonstrated to have been accepted or incorporated into

practice of state officials. There must be some bridging of

the de jure/de facto gap, leading to some hybrid policy and

practice. Judicial finding of such hybrids is unusual. In

contrast to other categories of state action, then, 42 U.S.C.

1983 cases are rare.

The Operation of State Action:
Other Considerations

The four categories of state action cases reflect the

historical development of the concept and serve to indicate

its evolution through judicial definition and redefinition.

The trend of the current "Burger Court" has been to limit

the last three categories by finding state action as a

69398 U.S. 144 (1970).

matter of course only in the first category of direct state

action.70 The Burger Court, for example, did not find state

action in the Jackson v. Metropolitan Edison state affirma-

tive privity case and the Moose Lodge Number 107 v. Irvis

state regulation case. It also narrowed the scope of public

function cases in Lloyd v. Tanner and Hudgens v. NLRB. It

also limited jurisdiction and remedies under 42 U.S.C. 1983.

This posture toward redefinition of state action has conse-

quences for would-be plaintiffs in due process cases arising

out of nonpublic educational institutions, of course;

particular due process cases will be examined in Chapter V.

One commentator, pointing out that the competing

interests are similar in Burger Court cases to those in

earlier cases, noted that the balance struck by the Court is

different. This means a "curtailment, rather than further

expansion, of the state action concept," due in part to a

"renewed judicial concern for private decision making."71

Another commentator notes, however, that:

It is crucial to understand that while
the Burger Court may have evidenced a
hesitancy to utilize the fourteenth
amendment in peculiar fact situation,
the conceptual analysis of the state

7Note, State Action and the Burger Court, 60 Va. L. Rev.
840 n.3 (1974).
Id. at 854.

action inquiry proposed by the Warren
Court still receives adherence. In
each of these cases, the majority has
employed the previously articulated
standard that the state involvement
must go directly to the alleged un-
constitutional private activity and
not simply attach to the private
activity involved.72

To the extent that the Burger Court has "diluted" the

Warren Court approach, it has done so by more consistently

requiring the involvement link between the state and the

specific challenged private activity to be "significant."73

Combined with the Burger Court's restrictive tendency to

limit holdings to the fact situation at hand,74 the signifi-

cance requirement affects Court treatment of the threshold

state action issue in equal protection and due process cases.

As it turns out, however, the "level of significance"

required may be greater for due process than for some equal

protection cases. The Warren Court's requirement of

directness and specificity exhibited the same tendencies.

The Slaughter-House Cases mentioned earlier as limiting

the privileges or immunities clause provided also the

limiting notion that the fourteenth amendment applies only

to racial discrimination. This view has had lingering

72Note, supra note 4, at 613 n.7 (emphasis added).

Id. at 614 n.7.

vitality through different judicial standards for signifi-

cance and specificity in equal protection race cases as

opposed to nonrace equal protection and due process cases.

Though "most of the shifts in state action theory first

made their appearance in the race cases,"75 the issue of

state action arises today most commonly in cases not

involving race.76 Courts in the latter have been "signifi-

cantly less willing" to find state action than traditionally

in racial discrimination cases.77 Thus,

Particularly in aid cases, some courts
have asserted that a lower degree of
state support would be required to con-
stitute "state action" in equal protection
suits against private persons for racial
discrimination. They have relied in part
upon the fact that the fourteenth amend-
ment's foremost purpose was the eradica-
tion of certain types of racial discrim-
ination, as is well-documented by
scholarly investigation and judicial
opinion. But it is likely that a judicial
and social repugnance for all forms of
racial discrimination has influenced the
greater proclivity of the courts to find
"state action" in this area.78

It should be pointed out that racial considerations

seem to make little difference in agency and power-grant

75Van Alstyne & Karst, State Action, 14 Stan. L. Rev. 3,
4 (1961).

76Note, supra note 20, at 658.


781d. at 661 (footnotes omitted).

cases, of the affirmative privity subcategory of state

involvement. This follows from questions of degree being

"essentially nonexistent" in such cases. Most agency cases

and a large proportion of power-grant cases, moreover, have

not been equal protection cases in the first place.80

As a general rule in cases of the second category,

then, if the challenged activity involves racial discrimina-

tion, an interest the defendant seeks to protect, "the

scales are tipped to allow a finding of state action despite

relatively slight state involvement."81 In this balancing

of interests, the courts consider the character of the

plaintiff's alleged right and the context and circumstances

of the alleged denial.82

This variable significance requirement was expressed

in Shelley v. Kraemer, and more recently in the important

Burton case. The Court in Burton stated that injunctive

relief against the ostensibly nonpublic activity itself

requires the state to be involved "to some significant

extent" in the activity. There may be a less significant

connection required in cases seeking the severance remedy,

79Id. at 661.

81Antoun, supra note 9, at 728 (footnote omitted). But
see Evans v. Abney, 396 U.S. 435 (1970).

82Id. at 729.

however, because it involves a different balancing of

interests. Thus, although in state regulation cases the

regulation must be "substantial," in the state aid cases,

which involve government in a different posture, the courts

have "explicitly and consistently" distinguished the quantum

of aid required to trigger the two different remedies.84

The variable specificity or directness requirement,

focusing upon whether the state is merely involved with the

private actor in some general way, or directly with the

specific challenged activity, is more stringent in nonracial

cases. Less direct connection with the specific challenged

private activity will give rise to state action in equal

protection race cases than in equal protection nonrace cases
or due process cases.

In state aid cases involving racial discrimination, aid

which only generally furthers the private or nonpublic

activity is normally sufficient for the finding of state

action and the ordering of the severance remedy, provided

that the lower quantum of aid is met. In state aid cases not

involving race, the aid typically must be shown to further

the particular challenged activity,86 and meet the higher

quantum level.

8Note, supra note 20, at 660.
Id. at 700.

8Antoun, supra note 9, at 729.

In the ultimate state involvement cases, wherein the

state is viewed as a partner or joint venturer with the

private actor, particularity is no problem; the state is

deemed involved in all activities of the private actor.87

Such a symbiotic relationship leads to general injunctive

relief against the challenged activity.

The somewhat different approaches of the Warren and

Burger Courts to state action serve to point out that it is

"imperative that the scope of the state action doctrine be

understood as continually evolving.88 To the extent that

it evolves, judicial redefinition is occurring. Indeed,

judicial redefinition is the vehicle for that evolution.

That evolution and redefinition in regard to due process

issues generally and those arising out of nonpublic educa-

tional institutions specifically provide the focus of

Chapters IV and V, dealing respectively with conceptual and

contextual perspective on due process.


Contextual perspective on state action begins with

recognition that state action is a judicially created con-

cept that must be applied in concrete cases. In operation,

87Id. at 729 n.59.

88Note, supra note 4, at 614 n.10.

state action cases may be divided into four basic categories:

direct state action, state involvement, public function, and

custom. Subsumed under the state involvement category are

three subcategories: state affirmative privity, state

regulation, and state aid. Examination of cases within

these categories and subcategories reveals that evolution

of the state action concept generally, in both equal protec-

tion and due process cases, has taken place and may presently

be taking place through judicial redefinition. Two indica-

tors of this are the limiting of holdings to the facts at

hand and the involvement category requirements of signifi-

cance and specificity. These latter are variable, being

less of a barrier to the finding of state action in equal

protection racial discrimination cases than in equal pro-

tection nonrace cases or due process cases.




Like state action, due process may best be understood

by focus upon the twin perspectives of concept and context.

This chapter will reflect the former and Chapter V the

latter focus.

The Meaning of "Due Process of Law":

The notion of "due process of law" is not new. It is

not, moreover, of American origin, though the phrase itself

twice appears in the United States Constitution. Its

English origins and its American development do demonstrate,

in a way as meaningful for educational administrators as

for high government officials, that the notion of funda-

mental fairness in dealings between a government and its

people is critical to the existence of an ordered democratic

society. The major conceptual issue in due process cases

thus focuses upon the institutionalization of fundamental

fairness as a matter of law.

First appearing in an English statute of 1354, the

phrase "due process of law" had little of its current

talismanic quality, even though the statute derived from the

Magna Carta. Indeed, it was to that great document's

phrase "the law of the land" that Englishmen looked for pro-

tection from the state.2 The two phrases became to a degree

interchangeable by the end of the fourteenth century, but

"due process of law" has never been to Englishmen what it
has become to Americans.

The Articles of Confederation under which this fledgling

nation was formed were conceived within a framework of

strictly limited powers of the central government.5 Such a

framework reflected fear of the types of arbitrary government

action that "the law of the land" and "due process of law"

protected against in the mother country. What the framework

brought about, however, was a central government too weak to


The Constitution was drafted within a framework of

limited powers, as well. This time, however, a practicable

1Jurow, Untimely Thoughts: A Reconsideration of the
Origin of Due Process of Law, 19 Am. J. Legal Hist. 265,
266 (1975).
2Id. at 279.

3H. Black, A Constitutional Faith 33 (1968).

Jurow, supra note 1, at 279.

5A. Morris, The Constitution and American Education 23

balance among powers and protections of the central govern-

ment, the states, and the people was struck. It was the

purpose of the soon-added Bill of Rights to make explicit

the point of this balance. The tenth amendment, for example,


The powers not delegated to the United
States by the Constitution, nor pro-
hibited by it to the States, are
reserved to the States respectively,
or to the people.

One important consequence of this statement of federalism

is that individual states have plenary power over education,

public and nonpublic, within their borders.

As critical as the relationship between the central

government and the states was, it was the relationship be-

tween the central government and the people that formed the

cornerstone of the Bill of Rights. Among these protectors

of individual rights was one of the fifth amendment's key

clauses: "No person shall . be deprived of life,

liberty, or property, without due process of law." The new

Constitution thus incorporated both hallowed phrases of

English governmental limitation; Article VI had spoken of

the Constitution as the "Supreme Law of the Land." Though

the American evocation of the law of the land seems more an

affirmation of central authority than a limitation, the

6 d. at 33.
Id. at 33.

fifth amendment picked up any slack through its due process

express limitation "not on what the government could do,

but on the process it had to follow in order to do it."7

The protections afforded Englishmen under the phrase

"the law of the land," then, had become institutionalized in

America specifically as "due process of law." This is

particularly interesting in light of the fact that at the

time the Bill of Rights was adopted the eight state con-

stitutions affording similar protections used the phrase

"the law of the land."8

The protections directly afforded by the Bill of Rights

generally and its due process clause specifically extended

to citizens in relation to the central government only.

What about the relationship between a person and his

particular state? That is to ask, if this statement be so,

and if education be a function of the states, how may due

process issues arise in public or nonpublic educational

institutions? The answer lies in another amendment to the

Constitution, the fourteenth, adopted in 1868.

The fourteenth amendment provides that "No State shall

S. deprive any person of life, liberty, or property,

without due process of law." The operative words are "State,"

R.E. Cushman & R.F. Cushman, Cases in Constitutional
Law 530 (3rd ed. 1968).


9Barron v. Baltimore, 7 Pet. 243 (1833).

which gives rise to the state action concept itself;

"deprive," which gives rise to questions that go to the

heart of the notion of freedom in an ordered society;

"person," which gives rise to issues such as whether aliens

or corporations are persons; "life, liberty, or property,"

which give rise to the critical issue of what interests a

state must not arbitrarily or summarily deprive a person;

and "due process of law," which give rise, as will be shown,

to more than simply the basic procedural question, "What

process is due?"

The state action concept has provided the focus of the

preceding chapters. The meaning of "deprive" is not

obvious.10 The exercise of a state's police powers places

limits upon the extent to which one's behavior or use of

property may interfere with the liberty or property rights

of others. People give up their claim to complete personal

freedom as the price of membership in an ordered society.

The due process clause exists in order to keep the price

paid minimal. Not coincidentally, it is this aspect of

that basic balance of powers and protections discussed

earlier that spawned development of substantive due process,

discussed later.

The operative word "person" has settled legal effect;

within the context of education, for example, aliens must be

10J.N. Story & L. Ward, Perspectives of American Law 73

afforded the same due process protection as citizens,1 and

corporations such as nonpublic schools cannot be deprived

of property without due process of law.12 The word "person"

should not be confused with "citizen."

Discussion of what is meant by "life, liberty, or

property" is critical to an understanding of due process as

a concept, and will follow directly. That discussion will

lead logically into inquiry into the dual nature of due

process, i.e., its procedural and its substantive forms.

Included in the latter is the whole question of the rela-

tionship between the fourteenth amendment's due process

clause and the Bill of Rights.

The Meaning of "Due Process of Law":

Constitutionally Cognizable Interests

The fourteenth amendment requires that a state must

provide a person due process of law if it deprives him of

"life, liberty, or property." "Life," it would seem, is

the constitutionally cognizable interest least open to

definitional ambiguity. The question of what "liberty" and

"property" mean remains. Courts have found it a difficult

11Truax v. Raich, 239 U.S. 33 (1915).

12Pierce v. Society of Sisters, 268 U.S. 510 (1925).

one. "It is not clear whether certain conduct or interests

are liberty or property, nor is it clear whose interest is

protected" in certain cases.13 Conceptual perspective,

furthermore, is complicated by the contextual nature of the

terms. "'Liberty' and 'property' are broad and majestic

terms. They are purposely left to gather meaning from


Liberty, as a constitutionally cognizable interest

protected by the due process clause, means more than simply

freedom from bodily restraint.15 Early judicial definitions

of this interest are not particularly illuminating, however.

These range from liberty being seen as the right "generally

to enjoy those privileges long recognized at common law as

essential to the orderly pursuit of happiness by free men,"16

to tautologies such as "liberty under law extends to the

full range of conduct which the individual is free to pur-

sue." 17 More recent cases permit more meaningful analysis

of the term.

13Rendleman, The New Due Process: Rights and Remedies,
63 Ky. L. J. 531, 544 (1975).

14Board of Regents v. Roth, 408 U.S. 564, 571 (1972).

15Rendleman, supra note 13, at 543.

16Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

17Bolling v. Sharpe, 347 U.S. 479, 499 (1954).

Liberty relates to conduct and status.18 It is a

growing concept both because liberty interests are the

"leftovers"--those interests not protected under the Bill of

Rights or fourteenth amendment life and property--and be-

cause novel often intangible interests are being claimed in
recent and current due process cases.

Three classes of liberty interests may be discerned.

These differ in the point of balance struck between signifi-

cance accorded the personal stake and justification accorded

the governmental exercise of authority.20 This balancing

is particularly contextual in that liberty "varies with the

setting,"21 but conceptual classifying is helpful.

The first class of liberty interests comprises situa-

tions wherein the personal stake is so significant that the

government simply cannot interfere. The affording of pro-

cedural due process is not an issue in such situations

because the state cannot constitutionally deprive a person

of such liberty.

The second class comprises economic, expressive, and

locomotive conduct. It includes interests such as "freedom

from government action which attaches a stigma, restrains

1Rendleman, supra note 13, at 544.
19 d.

0Id. at 545-46.

2 Id. at 544.

personal freedom or works a hardship."22 The balance in

this class shifts so that the state may regulate the liberty

after according procedural due process.

The third class of liberty interests comprises those

situations wherein a person claims an interest found by a

court to be of such little significance that no constitu-

tionally cognizable liberty interest is involved. The state

need not afford procedural due process when depriving a

person of the claimed interest.

Some liberty interests of concern to educational admin-

istrators depend upon the legal relationship between the

teacher, employee, or student, and the institution. That

relationship also serves as a key to determination of the

other constitutionally cognizable interest, property.

Like liberty, property is not an easy concept to

define. For purposes of due process analysis it comprises

more than traditional notions of objects legally protected

through title or ownership.23 "Income, status, job security

are the new property of the corporate society."24 This

"new property" is conceptually important in due process

analysis today because of judicial recognition that the

22 d. at 545. See also Bishop v. Wood, 426 U.S. 341
230. Browder, R. Cunninqham, & J. Julin, Basic Property
Law 6 (1966).

2 J.N. Story & L. Ward, supra note 10, at 59.

ancient institution of property and the century-old

reference to it in the fourteenth amendment must change to

deal with the changes wrought by the passage of time in an

ever-modernizing society.25 Educational administrators

should be aware that when such interests as tenure status

for teachers and student status for their clients are con-

sidered "governmental largess," process may be due prior to

deprivation of such "new property."26

Whether new or old, property is "nothing more than

that which the courts choose to call and protect as

property."27 The educational policy-making aspect of

judicial decision making often becomes manifest in just such

a situation. The Supreme Court, fortunately, has established

some guidelines for this choice:

Property interests, of course, are not
created by the Constitution. Rather,
they are created and their dimensions are
defined by existing rules or under-
standings that stem from an independent
source such as state law--rules or under-
standings that secure certain benefits
and that support claims of entitlement
to those benefits.28

As mentioned above, one important consideration is the

legal relationship between the individual and the

2 Id. at 58.

26See Reich, The New Property, 73 Yale L. J. 733 (1964).

2J.N. Story & L. Ward, supra note 10, at 59.

28Board of Regents v. Roth, 408 U.S. 564, 577 (1972).

governmental entity. The legal relationship between

teachers or students and their public educational institu-

tion bears upon the finding of constitutionally cognizable

interests. If the institution is ostensibly nonpublic, yet

is found to engage in state action, the legal relationship

between teachers or students and the institution similarly

influences conceptual analysis.

The notion of tenure in public office as a type of

property interest is not new. "In England until the 16th

century, offices were protected like cattle or real

estate."29 Practice in the American colonies reflected

this attitude, but the framers of the Constitution attempted,

on the national level, at least, to replace this with pro-

cedures of appointment to federal office.30 Even so, in

order to attract and retain highly qualified office holders,

de facto tenure was allowed to develop; federal office began

to seem more and more a form of property.31

By contrast to the general perception, the courts were

not disposed to view public employment as a property

interest. Courts looked upon the employee-government

employer relationship as a privilege, not a right of the

2Note, The Due Process Rights of Public Employees, 50
N.Y.U. L. Rev. 310, 311 (1975).

301d. at 312.

31Id. at 313.

employee.32 As a matter of law, the legal relationship of

employment was traditionally "very remote from traditional

notions of property.3 Nevertheless, with the coming of

the modern social service state came the notion of "new

property." The right-privilege distinction was abandoned,

replaced by express focus upon the circumstances under which

the public employment relationship may give rise to a

property or liberty interest.34

A property interest in employment arises from a specific

statutory or contractual entitlement, from an implied con-

tract, or from the "common law" of a particular industry,

plant, or campus.35 A tenured teacher, for example, has a

legal relationship with his public employer that is a

property interest. He cannot be dismissed without proce-

dural due process.

Treatment of student status parallels that accorded

employee or teacher status. The right-privilege distinction

long governed judicial treatment of the student-institution

relationship in public and to an even greater extent in

32See Van Alstyne, The Demise of the Right-Privilege
Distinction in Constitutional Law, 81 Harv. L. Rev. 1439
33Developments in the Law--Academic Freedom, 81 Harv.
L. Rev. 1045, 1081 (1968).
34Board of Regents v. Roth, 408 U.S. 564 (1972).

35Note, supra note 29, at 323.

private educational institutions. Elementary and secondary

students had something of a statutory right to attend public

school, but nonpublic school and university students

attended on the basis of privilege.36 Though the former

right was by no means absolute, the latter privilege was

far the more tenuous tie.

Privilege is by no means the only conceptually sound

characterization of the student-institution relationship.

Indeed, privilege is frequently viewed in conjunction with

the tort notion of in loco parents. Other sometimes over-

lapping or mutually reinforcing conceptual bases for the

student-institution relationship, particularly in post-

secondary schools, are contractual, trust, fiduciary, and
constitutional. Which relationship or combination is

adopted as a matter of law by a court has important conse-

quences for educational administrators. Thus, the privilege-

contract-in loco parents combination long favored by the

law encouraged practices significantly different from those

effected by the constitutional relationship currently held

applicable to public educational institutions.

Prior to the mid-1950's, most challenges to public

school practices and policies were brought in state courts.

Note, Legal Relationship Between the Student and the
Private College or University, 7 San Diego L. Rev. 244, 249

3K. Alexander & E. Solomon, College and University Law
410-14 19T2).

The presumption standardly employed was that unless a

plaintiff could prove them in the context of in loco

parents to be arbitrary, capricious, or unreasonable, such

practices and policies were valid. As older conceptual

analyses fell into judicial disfavor, focus upon notions of

property and liberty and resort to federal courts increased.

Federal willingness to hear cases arising out of the educa-

tional setting was thus not coincidentally accompanied by

federal court adoption of the constitutional relationship.

Extension of fourteenth amendment protections to students

in relation to public school practices and policies has
"substantially eroded the formerly prevalent doctrine of in

loco parents and has expanded the policy-making concerns of
school officials."38

The conceptual murkiness accompanying judicial develop-

ment of the constitutionally cognizable interests of

liberty and property has not been resolved. It is not

surprising, then, that in some cases it is not clear whether

certain conduct or interests are property or liberty. It

is clear that, except in extraordinary situations or emer-

gencies, once a constitutionally cognizable interest is to

be deprived a person, the requirement for procedural due

process attaches.

3Nystrand & Staub, The Courts as Educational Policy
Makers, 77 NSSE Yearbook 31 (1978).
39Rendeman, note 13, at 589.
Rendleman, supra note 13, at 589.

Operational Duality

The preceding section included mention of procedural

due process being triggered by a deprivation of a constitu-

tionally cognizable interest. As it happens, not all due

process is procedural; due process has two conceptual forms,

procedural and substantive. In operation, each form serves

to provide fundamental fairness in relations between an

individual and his state, to "control private abuse of

public power and to reconcile individual freedom with the

social service state."40

The original meaning of the phrase "due process of law"

was that the state is constrained from limiting the life,

liberty, or property of any person unless it does so through

proper procedures. Trial by jury in criminal cases was the

assumed manifestation.41 The idea, expanded to include

administrative deprivations, but still focusing upon

adjudicative, not legislative acts,42 is basic to Anglo-

American civilization. "The history of liberty," wrote

Supreme Court Justice Felix Frankfurter, "has largely been

the history of procedural safeguards."43 To the individual

40Id. at 559. See also Sniadach v. Family Finance Corp.,
395 U.S. 337, 342 (1969) H arlan, J., concurring); Fuentes
v. Shevin, 407 U.S. 67 (1972).
41K. Alexander, R. Corns, & W. McCann, Public School Law
177 (Supp. 1975).

4Rendleman, supra note 13, at 559.

43McNabb v. United States, 318 U.S. 332, 347 (1943).

being deprived of his life, liberty, or property, procedural

due process can work, for example, to ensure both that he in

fact committed an offense for which he is being punished and

that the punishment itself is imposed fairly and responsi-

bly.44 As a cultural bulwark supporting the rule of law,

procedural due process is a conservative doctrine because

it requires "cautious, deliberate decision making" and thus

impedes rapid change.45

What is the nature of the process itself when due?

Again, Justice Frankfurter:

Due process unlike some legal rules is
not a technical conception with a fixed
content, unrelated to time, place and
circumstances. . It is a delicate
process of adjustment inescapably
involving the exercise of judgment by
those whom the Constitution entrusted
the unfolding of its process.46

Once state action and a constitutionally cognizable

interest are found, the procedural due process which follows,

except in extraordinary situations or emergencies, includes

notice and a hearing. Conceptual subelements can make these

more complicated than they may on their face appear. Con-

sider, for example, the requirements in a college

44Wright, The Constitution on the Campus, 22 Vand. L.
Rev. 1027, 1084 (1969).

4Rendleman, supra note 13, at 539.

46Joint Anti-Fascist Refugee Committee v. McGrath, 341
U.S. 123, 163 (1951) (Frankfurter, J., concurring).

disciplinary action. The notice requirement compels the

agency or institution to make a good faith effort to

notify the student, through written notice, of specific

charges, time and place of the hearing, evidence to be pre-

sented against him, and possible action to be taken if the

charges are upheld.47 The hearing requirement compels

fundamental fairness in the forum of decision. Conclusions

must be based upon substantial evidence adduced at the

hearing.48 The hearing officers, moreover, must be impar-

tial ,49 and the actions taken must be reasonable related to

the gravity of the offense.50

The form of the hearing differs from case to case.

This variation is not only constitutionally permissible,

but necessarily follows from the conceptual analysis employed

by the courts.51 Just as the nature of the interest at

stake is the key to triggering the process, the weighing of

the respective individual and state interests determines the
form of the key part of that process, the hearing.5

47D.P. Young, The Yearbook of Higher Education Law 1977
100 (1977).
48Wright, supra note 44, at 1063.
49Johnson, Due Process Requirements in the Suspension or
Dismissal of Students from Public Educational Institutions,
5 Capital U. L. Rev. 1, 29 (1976).

5Wright, supra note 44, at 1084.
See Rendleman, supra note 13, at 536.

52Board of Regents v. Roth, 408 U.S. 564, 570 (1972).

The greater an individual's chance of suffering a

deprivation amounting to "grievous loss,"53 the more formal

the hearing. Conversely, greater weight is accorded the

government's interest in less costly, expeditious adminis-

tration when an individual's stake is not so great.

Procedural safeguards that vary with the interests at stake

include the right to call witnesses in one's behalf, the

right to confront and cross-examine adverse witnesses, and

the right to be represented by legal counsel. Though the

key to the procedural form is the context of the particular

case, the basic objective of procedural due process is, as

always, fundamental fairness.

Absence of requisite formalities need not be fatal to

an institution's case. There is a "well-established theory

in the lower courts" that any procedural defects in a due

process hearing can be cured by a new hearing before

another hearing body, provided that "there are no substan-

tial defects in the proceedings of the second body."54

Absence of due process itself is another matter.

If the governmental administrative agency, such as

public educational institution, fails to achieve funda-

mental fairness by neglecting or refusing to afford pro-

cedural due process, what course should the aggrieved

53Goldberg v. Kelly, 397 U.S. 254, 263 (1970).

54Johnson, supra note 49, at 29-30.

teacher, employee, or student take? Collective bargaining

contracts may provide some recourse for teachers or other

employees through the negotiated grievance machinery, but

students do not enjoy such contractual protection, a

perceived contractual student-institution relationship not-

withstanding. For them and for many teachers and other

employees, recourse is often found in the courts. The

question then becomes one of procedure and remedy.

Section 1983, the federal Civil Rights Act of 1871, is

"the major vehicle for due process suits."55 Coupled with

28 U.S.C. 1343(3), this statute provides federal jurisdic-

tion in such actions, as was discussed earlier in connection

with state action. Not only are all these cases and thus

most due process cases brought in federal courts; most are

also class action suits.56 Individuals must decide how best

to pursue their remedy.

State courts also are competent forums for bringing

federal due process claims.57 Such competence is called

jurisdiction over the subject matter. It should be noted

that together with jurisdiction over the person sued, com-

petence is a due process safeguard in the judicial process

5Rendleman, supra note 13, at 535.

56Id. at 671.

itself. Using a state court avoids the federal jurisdic-

tional problems discussed earlier, facilitating direct focus

upon the constitutional issue. In addition, both state

courts as expositors of common law and federal courts under

pendent jurisdiction can hear, decide, and base remedies

upon alternative arguments grounded in nonconstitutional
tort theory.59 It is, after all, remedy that the plaintiff


Remedies afforded by courts for procedural due process

violations include both equitable remedies such as injunc-

tions, orders for reinstatement of personnel or expungement

of records, and also legal remedies consisting of money

damages. Types of legal remedies include nominal damages,

actual damages, compensation for impalpable loss, and

punitive or exemplary damages.60 As should be apparent,

the remedy afforded is tailored to the injury received.

This underscores the contextual nature of due process cases,

addressed in Chapter V.

What about substantive due process? The term originally

referred to constitutional restraints judicially placed upon

state regulation of private property.61 The idea predated

58Id. at 594.

59Id. at 671-72.
60Id. at 664-65.
Cord, Neo-Incorporation: The Burger Court and the Due
Process Clause of the Fourteenth Amendment, 44 Fordham L.
Rev. 215, 233 n. 109 (1975).

the fourteenth amendment. Indeed, one of the central

purposes of the Constitution was the "protection of private

property from the irresponsible attacks of the 'too
popular' state governments."62 This idea formed the basis

of the Dartmouth College case, discussed later, though the

obligation of contracts clause upon which that case was

based gradually lost its protective vitality. Fifth amend-

ment substantive due process was intimated a decade before

ratification of the fourteenth amendment in the Dred Scott

decision,63 but the Supreme Court resisted the notion that

the substance of a state law could be held void for want of

due process until close to the turn of the century.64

When a majority of the Court finally accepted the

notion of this "economic-substantive due process," it

focused upon the reasonableness of the state regulatory

statute. It was this focus, filtered through the economic

theory bias of judges, that led to the striking down of

many state laws regulating property and liberty interests.

Such interests included the imposing of railroad rates, the

operating of private schools, and the teaching of modern

languages. This focus via the fifth amendment later doomed

early New Deal legislation.

R.E. Cushman & R.F. Cushman, supra note 7, at 530.

319 How. 393 (1857).
64.F. Cushman, s ra note 7, at 53
R.E. Cushman & R.F. Cushman, supra note 7, at 530.

In assessing the "reasonableness" of a statute to

determine whether it infringed upon some notion of property

or liberty protected by the due process clauses, courts

looked to several criteria: whether the statute evinced a

proper purpose; whether the means employed were substan-

tially related to that purpose, if proper; and whether the

statute intruded upon property or liberty interests more
than was necessary to achieve a proper purpose. Con-

ceptually, this analysis seems legitimate, even compelling.

Contextually, it ran headlong into an economic depression

so great that the free enterprise values so basic to

economic due process and so instrumental in causing the

devastation could not bring the nation out of it. When the

tide shifted and New Deal legislation began to be sustained,

economic-substantive due process under both the fifth and

fourteenth amendments fell rapidly into judicial disfavor.66

"More recently, the 'liberty' of Adam Smith has been

supplanted by that of John Stuart Mill."67 The protection

of political and civil liberties lies at the heart of this

"new" substantive due process. The standard applied is

similar to that in equal protection cases involving the

65Note, The Less Restrictive Alternative in Constitu-
tional Adjudication: An Analysis, A Justification, and
Some Criteria, 27 Vand. L. Rev. 971, 974 (1974).

66Id. at 977-78.

67Cord, supra note 61, at 233 n.109.

compelling state interest test, and not unlike that used

in old economic due process cases.

Application of this standard through substantive due

process in the education setting protects against regula-

tions that are unduly vague or overbroad,69 rules improperly

promulgated or enforced, and rules unrelated to legitimate

public school or university business.7 It should be noted

that reasonable restriction upon personal liberty by
exercise of a state's police powers is legitimate, but

these types of restrictions, and others such as some

statutory irrebuttable presumptions, are not.

As mentioned earlier, the Bill of Rights, with the

array of political and civil liberties it embraces, applies

directly only to the federal government. To be sure, many

state constitutions provide bills of rights, but how are

one's political and civil liberties in relation to the

state protected as a matter of federal law? The due process

clause of the fourteenth amendment and the notion of sub-

stantive due process provide the key.

8Note, supra note 65, at 981.

69D.P. Young, The Law and the Student in Higher Educa-
tion 10 NOLPE Monograph Series, 1976).

7Note, Private Government on the Campus--Judicial
Review of University Expulsions, 72 Yale L. J. 1362, 1403-
09 (1963).
71. Ward supra note 10, at 74.
J.N. Story & L. Ward, supra note 10, at 74.

Relationship with the Bill of Rights

Justices of the Supreme Court have embraced several

views about the relationship between the Bill of Rights and

the fourteenth amendment. The connection, when found,

couples the first ten amendments with the liberty provision
of the fourteenth amendment's due process clause.7 That

coupling lends substantive content to the clause. It is

the perceived nature of the coupling that gives rise to

competing views on this important relationship.

The "ordered liberty approach"73 or "fundamental
rights view" once prevailed in the Supreme Court.7 This

view denies direct connection between the Bill of Rights

and the fourteenth amendment. Under it the due process

clause is seen as having a substantive content of its own,

based upon the traditional civil and political freedoms of

our Anglo-American civilization. These freedoms are not
necessarily embodied in the Bill of Rights. Adherents to

the ordered liberty or fundamental rights view championed

the dynamic concept of due process it posited;76 critics

saw this as "ad hoc subjectivity"77 on the part of judges.

72A. Morris, supra note 5, at 83.

73Cord, supra note 61, at 216.

74A. Morris, supra note 5, at 83.

75Id. at 84.

76Cord, supra note 61, at 219.

77A. Morris, supra note 5, at 84.

The "total"78 or "complete incorporation view" finds

the connection between the Bill of Rights and the due

process clause of the fourteenth amendment a one-to-one

correspondence. This unfavored view holds that the Bill of

Rights "in its entirety, but nothing more," is incorporated

into the fourteenth amendment.79 Adherents to the total or

complete incorporation view base their preference upon the

belief, disputed by critics of the view, that the intent of

the framers of the fourteenth amendment was to apply the

Bill of Rights to the states.80

The "selective incorporation view" combines certain

elements of the preceding views; the idea is that the

liberty provision of the due process clause "necessarily,

but selectively" incorporates verbatim only those

guarantees of the Bill of Rights that are essential to the

scheme of ordered liberty.81 Adherents must decide both

which guarantees should be selected and upon what criteria

that selection will be based, but view this as flexibility.82

Critics call the view a "spurious compromise" between the

78Cord, supra note 61, at 224.

79A. Morris, supra note 5, at 85.


81Id. at 86.


two views it combines, with none of the historical or

logical support of either.83

The "ultra-incorporation"84 or "complete incorporation

plus fundamental rights view" holds that the fourteenth

amendment liberty incorporates the Bill of Rights in its

entirety and embraces certain additional "fundamental rights"

as well. The view thus attempts to combine closed-ended

and open-ended approaches to the substantive meaning of due
process; arguments for and against the particular combina-

tion echo those expressed above for each component.

The "selective incorporation plus fundamental rights

view" is the current overall view of the Supreme Court on

the relationship between the Bill of Rights and the four-

teenth amendment.87 This view combines flexible selective

incorporation with certain additional "fundamental rights"

not expressly set forth in the Constitution. Again, argu-

ments for and against this combination in turn combine those

above. "Most recently, substantive due process has been

associated with the emerging right of privacy."88 Emergence

83Id. at 87.

84Cord, supra note 61, at 226.
85A. Morris, supa note 5, at 87.

86Cord, supra note 61, at 227.

87A. Morris, supra note 5, at 87.

88Cord, supra note 61, at 234 n.109.

of that right has been facilitated by the operation of this


A variation on the several views that involve incorpo-

ration has been termed "neo-incorporation," reflecting its

recent origin.89 Embracing the terminology but not the

substance of the traditional incorporation approaches dis-

cussed above, neo-incorporation incorporates the basic

procedural rights from the Bill of Rights into the four-

teenth amendment, but does not thereby limit state power
exactly as the original rights limit federal power.90 It is

a question of degree, most notably in questions of criminal


However manifested, substantive due process, like its

procedural counterpart, is an important concept in law

today. Before becoming operative as a constitutional re-

quirement in a given situation, however, each form pre-

supposes state action. Public elementary/secondary and

postsecondary school administrators should therefore gain an

understanding of due process as a legal concept, and trans-

late that understanding into appropriate and resolute action.

But what about nonpublic school administrators? Must

they, too, understand due process and put it into operation?

89Id. at 232.

901d. at 234, 237.

That, the key question of the study, can only be addressed

through focus upon particular court cases. With conceptual

perspective achieved, this contextual perspective forms

the basis of Chapter V.


Conceptual perspective of due process begins with

focus upon historical development of the concept. Consider-

ation of constitutionally cognizable interests and the two

operational forms of due process, substantive and procedural,

underlie analysis of the concept. Fourteenth amendment due

process is related to the Bill of Rights, though the specific

connection is a source of judicial and scholarly debate.




Just as personification can be a problem in writing,

reification can be a problem in law. The talismanic

quality of the concept of due process of law was noted

earlier; the associated problem here is to provide con-

textual meat to the conceptual skeleton provided in Chapter

IV, without implying that due process, any more than a

corporation, is something more than a concept, something

"real." The legal effect, to be sure, is real enough, and

it is this that forms the basis of this chapter.

The Operation of "Due Process of
Law": Background

Educational administration is not simple. One compli-

cation is that it, like the society it serves, is becoming

more legalistic. In today's public and nonpublic educa-

tional institutions, legal considerations impinge upon more

and more decisions, in more and more ways.

As a matter of effective administration, fundamental

fairness should be indispensable to professional

administrative behavior. It is a matter of ethics no less

than effectiveness, and should be no less indispensable in

nonpublic than in public educational institutions. As a

matter of law, however, fundamental fairness as embodied in

due process would seem constitutionally required in the

former but not the latter institutions.

The major contextual issue in due process cases arising

from ostensibly nonpublic educational institutions is

whether the court can discern sufficient connection between

the institution's activity in each case and a state to

support a finding of state action as a matter of fact,

triggering requirement of due process as matter of law. The

educational practice and policy issue is the extent to which

federal constitutional restrictions do or should circum-

scribe the practice and policy of administrators in non-

public educational institutions. Examination of these

issues involves discussion of the educational milieu as well

as specific court cases dealing with procedural and sub-

stantive due process for the employees and clients of both

public and nonpublic educational institutions.

The Operation of "Due Process of Law":
The Milieu

All American public and nonpublic educational institu-

tions exist within the cultural framework of this society,

as well as within the local setting peculiar to each. These

may be termed the broader milieu and the narrower milieu.

Pervading the broader milieu are the cultural norms and

values that govern the basic societal institutions of law

and education, among others. Today these norms and values

are grounded in the principles of an open society, viz.,

equality and fair treatment. Another term for fair treat-

ment is due process. As noted earlier, the notions of the

law of the land, due process, and the dignity of the

individual, have long been a hallowed part of the Anglo-

American life; an open society is not an illogical goal in

such a cultural milieu. Similarly, the inference is not

unwarranted that in a truly open society, courts should

hear and decide due process and other legal issues arising

out of nonpublic as well as public educational institutions.

Education, as a basic societal institution, moreover,

should in theory be as prone to litigation as other basic

societal institutions. Logically, courts should respond

with similar alacrity to the adjudicatory needs, for example,

of education and business. The logic of equality among

societal institutions and the logic of judicial policy

making are not necessarily the same, however.
Courts have long been involved with education, but the

educational enterprise has also long been considered unique

Freund, The Challenge of the Law, 40 Tul. L. Rev. 475,
480 (1966).

2See J.C. Hogan, The Schools, the Courts, and the
Public Interest 7 1974).

in this country. Courts consequently have traditionally

practiced a studied restraint in dealing with potentially

legal issues arising from that setting, deferring to the

judgment and expertise of educational leaders, and placing

a high value upon institutional autonomy. This has

particularly been the case in postsecondary education

litigation. Some values and interests vary in relevance or

importance depending upon the level of education involved;

judicial policy making reflects this variability.

Whether the tradition of judicial restraint, already

eroded in increasingly legalistic America, continues is an

important question. Implicit are, of course, policy con-

siderations reflecting both historical and contemporary

value choices and interest balances. Courts take note of

the special nature of the educational community, especially

the university community, the proper role and function of

the educational enterprise, the importance of education to

students, and the maturity and responsibility of those

students, among other policy considerations. At the same

time, the increasing involvement of state and federal

governments with nonpublic education cannot be ignored.4

3Note, Judicial Review of the University-Student
Relationship: Expulsion and Governance, 26 Stan. L. Rev.
95 (1973).

40'Neil, Private Universities and Public Law, 19 Buff.
L. Rev. 155, 170-71 (1969).

Perhaps the basic policy consideration reflects the

uniqueness of education. Education is divided into the

complementary areas of elementary/secondary and post-

secondary or higher education. Another division, critically

important here though not entirely unique, is public and

nonpublic education. The term "educational institution,"

it will be recalled, includes by definition each of these

important divisions. An educational institution may be, for

example, a public elementary school or a nonpublic univer-

sity, a nonpublic high school or a public community college.

Moreover, the term here denotes a nonproprietary institu-

tion. The question of nonproprietary status is dispositive

of several important legal issues, such as tax exemption,

tort immunity, and accreditation.

The case that early in this country's history set the

legal precedent providing the philosophical as well as the

strictly legal basis for nonpublic education in the United

States was the landmark Dartmouth College case.5 There

Chief Justice John Marshall, writing for the Supreme Court,

set the tone for a rigid public/private dichotomy among

educational institutions, helping thereby to ensure the

future role of the private or nonpublic sector of education

at all levels.

5The Trustees of Dartmouth College v. Woodward, 17 U.S.
518 (1819).

Dartmouth College was chartered in 1769 by the English

Crown, the charter creating a board of trustees empowered

to choose a president and fill vacancies in board membership.

Ten years later, the first president was succeeded by his

son, who proved to be an inept educational administrator.

Dissatisfaction with the new president grew among the trus-

tees, culminating finally in their removal of him in 1815.

Meanwhile, the conflict had entered the political arena,

and in 1816 the political group which supported the former

president gained control of New Hampshire. This group soon

completely reorganized the college by statute, providing for

additional trustees to be appointed by the state governor

and for numerous other indices of state control. The newly

constituted board reappointed the former president, conflict

over control of the institution, now called Dartmouth

University, accelerated, and suit was brought by the trus-

tees who predated reorganization.

Before reaching the United States Supreme Court, the

case was heard by the Supreme Court of New Hampshire. In

terms that have had renewed emphasis in the much more

recent legal history of the state action concept, the court

upheld the reorganization on the ground that the institution

6R.E. Cushman & R.F. Cushman, Cases in Constitutional
Law 497-94 (3rd ed. 1gT68-_.

had become public in character, and was thus subject to

state control.7

Marshall rendered his opinion on the basis of a dif-

ferent, federal constitutional ground. The dispositive

constitutional provision prohibits states from passing any

law which has the effect of impairing the obligation of

contracts.8 The Court held that New Hampshire had done just

that in regard to the original charter/contract. The

Dartmouth College reorganization was therefore invalid.

The hidden agenda in the decision was encouragement of

industrial development in the young United States. Those

who would invest in corporate enterprises were assured that

their corporations would be free from undue state inter-

ference.9 As -noted earlier, these are the same concerns

that later led to judicial acceptance of economic-

substantive due process notions.

As also noted earlier, the case as well provided the

basis for private educational institutions in the United

States. It was the seminal legal precedent underlying the

existence and development of American private education at

all levels.

The starting point in Marshall's analysis of education

was his recognition of a strict public/private dichotomy;

71d. at 494.

8U.S. Const. art. I, 10.

R.E. Cushman & R.F. Cushman, supra note 6, at 494.

"Marshall perceived a neat distinction between 'a civil

institution to be employed in the administration of govern-

ment' and 'a private eleemosynary institution.'"0 Despite

the fact that this strict dichotomy does not accurately re-

flect the realities of modern institutional life, the

federal courts have traditionally tended to view private

higher education in Marshall's terms.1

This view has had direct impact upon fourteenth amend-

ment analysis since the strict dichotomy goes directly to

the idea of state action, the threshold issue in that

analysis. The persistence of this view, moreover, has

seemingly been unaffected by the fact that Marshall's opinion

predated enactment of the fourteenth amendment by half a


Complicating the judicial perspective is another

enduring observation made by Marshall in the Dartmouth

College case. The idea persists that nonpublic institutions

such as colleges and universities do not, in Marshall's

words, "fill the place, which would otherwise be occupied

by government, but that which would otherwise remain vacant."12

Higher education, according to Marshall, is thus essentially

a private or nonpublic endeavor. This orientation, coupled

O0 'Neil, supra note 4, at 156.
11 d. at 157.

1217 U.S. 518, 647 (1819).

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