JUDICIAL REDEFINITION OF STATE ACTION
IN REGARD TO DUE PROCESS ISSUES
IN NONPUBLIC EDUCATIONAL INSTITUTIONS
DENNIS DAILEY MURPHY
A DISSERTATION PRESENTED TO THE GRADUATE COUNCIL OF
THE UNIVERSITY OF FLORIDA
IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE
DEGREE OF DOCTOR OF PHILOSOPHY
UNIVERSITY OF FLORIDA
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.
TABLE OF CONTENTS
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
II STATE ACTION: CONCEPTUAL PERSPECTIVE .. 7
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
III STATE ACTION: CONTEXTUAL PERSPECTIVE . 25
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
IV DUE PROCESS: CONCEPTUAL PERSPECTIVE . .. 58
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
V DUE PROCESS: CONTEXTUAL PERSPECTIVE . .. 86
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
JUDICIAL REDEFINITION OF STATE ACTION
IN REGARD TO DUE PROCESS ISSUES
IN NONPUBLIC EDUCATIONAL INSTITUTIONS
Dennis Dailey Murphy
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-
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
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: CONCEPTUAL PERSPECTIVE
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
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,
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.
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
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.
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
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
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,
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.
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
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: CONTEXTUAL PERSPECTIVE
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
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
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
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
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
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
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).
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.
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 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-
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 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
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
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:
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
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,
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
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.
DUE PROCESS: CONCEPTUAL PERSPECTIVE
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
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,
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,
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.
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
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
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
3Nystrand & Staub, The Courts as Educational Policy
Makers, 77 NSSE Yearbook 31 (1978).
39Rendeman, note 13, at 589.
Rendleman, supra note 13, at 589.
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
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-
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.
DUE PROCESS: CONTEXTUAL PERSPECTIVE
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
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":
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,
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.
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.
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
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
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).