Rendell-Baker v. Kohn

Decision Date12 February 1981
Docket Number80-1451,Nos. 80-1328,P,RENDELL-BAKE,s. 80-1328
PartiesSheilalaintiff, Appellant, v. Sandra KOHN et al., Defendants, Appellees. Wayne KLUG et al., Plaintiffs, Appellees, v. NEW PERSPECTIVES SCHOOL, INC. et al., Defendants, Appellants.
CourtU.S. Court of Appeals — First Circuit

Robert J. Doyle, Boston, Mass., with whom Doyle, Playter, Novick & Berkin, Boston, Mass., was on brief, for Sheila Rendell-Baker.

Matthew H. Feinberg, Boston, Mass., with whom Mary Catherine Leonard, and Kassler, Feinberg & Feuer, Boston, Mass., were on brief, for New Perspectives School, Inc., et al.

Betty E. Waxman, Asst. Atty. Gen., Government Bureau, Dept. of the Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Boston, Mass., was on brief, for Francis X. Bellotti, et al.

Kurt M. Pressman, with whom Goldstein & Pressman, Cambridge, Mass., was on brief, for Wayne Klug, et al.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

CAMPBELL, Circuit Judge.

These two consolidated appeals from differing judgments in the district court involve claims brought under 42 U.S.C. § 1983 by former staff members of the New Perspectives School, Inc. Plaintiffs contend they were discharged because of exercise of their first amendment rights and without due process. The only question now before us is whether, in discharging plaintiffs, the defendants acted "under color of any statute, ordinance, regulation, custom or usage, of any state."

I.

The decisions under review both occurred without the taking of any evidence. In Rendell-Baker, summary judgment for defendants was entered on the basis of the pleadings, exhibits appended to the complaint, answers to interrogatories, and affidavits submitted in support of and in opposition to defendants' motion for summary judgment 488 F.Supp. 764 (D.Mass. 1980). These documents comprise the record in that case. In Klug, the court denied a motion to dismiss for failure to state a claim on which relief may be granted, taking the facts alleged in the complaint and supported by the appended exhibits in the light most favorable to the plaintiffs. Strictly speaking, the record in Klug consists only of the complaint, and that case presents only the question whether the district court erred in holding that it did not appear "beyond doubt that the plaintiff(s) can prove no set of facts in support of (their) claim which would entitle (them) to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Walker Process Equipment v. Food Machinery, 382 U.S. 172, 86 S.Ct. 347, 15 L.Ed.2d 247 (1965). Appellees in Klug have, however, invited us to consider the record in Rendell-Baker along with their complaint. Given this invitation, and the fact that the additional information in the Rendell-Baker proceeding tends, if anything, to support rather than to weaken their claim of state action, we feel free to draw on the records of both cases in describing the school and its relationship to the state, as we ultimately rule against plaintiffs on this critical issue.

a. The New Perspectives School

The New Perspectives School is a small, non-profit school which offers a high school program to students who have had difficulty completing an ordinary high school. The school is organized as a non-profit corporation under the laws of Massachusetts and is located on privately owned property in the Town of Brookline, Massachusetts. The school is operated by a Board of Directors, no member of which is a government official or is chosen by any government official or governmental body. The record is silent as to the history of the school; we do not know anything about its age, founding or original sources of funding. 1 The school serves approximately 50 students, all on a tuition-free basis. Virtually all the students have drug, alcohol, or behavioral problems, or have other special needs, and most are referred to the school by the Town of Brookline or the City of Boston under Chapter 766 of the Massachusetts Acts of 1972, or by the Drug Rehabilitation Division of the Massachusetts Department of Mental Health. 2 As of July 1978, when the school answered Ms. Rendell-Baker's interrogatories, all 50 students were referred there by one or more of these governmental bodies. We were informed at oral argument that students could also come to the school through private referral sources or on their own initiative. According to the complaint in Klug, the school is authorized to issue high school diplomas certified by the Brookline School Committee.

New Perspectives School has received funds, in varying amounts over the years of its operation, from numerous governmental agencies. In answer to an interrogatory the school indicated the following funding sources: Chapter 766; 3 Town of Brookline; Massachusetts Department of Mental Health; Department of Youth Services; Massachusetts Division of Family and Children's Services; Office for Children; Law Enforcement Assistance Administration (LEAA); 4 Private Contributors and Foundations. For the fiscal year 1975-76, funds from the various governmental sources accounted for approximately 91 percent of the school's budget, while private donations accounted for 9 percent. For 1976-77, the figures were approximately 99 percent and 1 percent. 5 We have no figures for other years, but the school does not suggest that these two years were unrepresentative.

In order to be eligible for these forms of public funding, the school has been required to conform to various governmental regulations. To receive placements, and funding, under Chapter 766, a school must be approved by the Massachusetts Department of Education. 6 The Department has issued a 33-page set of "Guidelines for the Approval of the Day Educational Component in Private Schools under Chapter 766." These guidelines relate to a wide variety of aspects of a school's operation, including financial recordkeeping, student discipline, staff training, use of volunteers, medical examinations for students, parent involvement, health care, subjects of instruction, teacher-student ratio, qualifications of teachers, evaluation of teachers, student records, confidentiality of records, transportation, insurance, food and nutrition, food preparation, toileting procedures, physical space and facilities, and classroom equipment. The guidelines also require that the school carry out each element of the educational plan specified for each child by the local school committee under Mass.G.L. c. 71B, § 3. On personnel policies the guidelines are less specific than they are on some other issues; they require only that the school maintain written job descriptions and a written policy on criteria and procedures for hiring, suspension and dismissal, procedures for handling staff complaints, and provisions for vacations and other benefits.

The school is also bound by its agreement with the Massachusetts Department of Mental Health, Drug Rehabilitation Division. Under that contract, the school, which is designated as "the Contractor," is required to provide counseling, educational and prevocational services for drug dependent or drug abusing persons and to give priority to clients referred by the Division. The contract provides for reimbursement of expenses specified in an attached schedule. The contractor is required to abide by certain general requirements regarding such subjects as equal employment and equal service, respect for the human rights of the persons served (i. e., with regard to research on human subjects), and avoidance of conflicts of interest. The contract makes no mention of personnel policies or rights of staff members.

The school's contract with the City of Boston subjects it to additional regulation. That contract states as its purpose compliance with the City's obligations under Chapter 71B through "the furnishing of special educational services by private facilities." Under the contract, the school must carry out the educational plan devised by the Boston School Committee for each Boston student placed with the school. The school must submit periodic reports on its services, and it is subject to inspection at any time during normal business hours. Pupil records must be kept confidential, and the school's employees are subject to the state conflict of interest law, Mass.G.L. c. 268A. Except for this latter provision, the school "shall have no capacity to ... incur any liability on the part of the city. The Facility, its agents or employees shall not have the status or pension rights of a city employee ...." The contract also provides that the school, and not the City, shall bear liability for any injuries to students or employees and for any claims "arising from any act or omission of the Facility, its agents or employees ...." The school's answers to interrogatories indicated that it is subject to additional regulations by the Department of Youth Services and by the Brookline School Committee, but the record does not include details of these regulations.

In May 1975, the school, through the Town of Brookline, 7 submitted a grant proposal to the Massachusetts Committee on Criminal Justice, a state agency which distributes funds received from the federal Law Enforcement Assistance Administration. The proposal was for a vocational program to provide students and recent graduates with vocational counseling, training in job skills, and placement in jobs. The grant application includes a statement that the applicant would comply with a set of general conditions relating to the use of the funds and to the sources of other funds for the project. Only one of these conditions makes any mention of staff or personnel; that one provides that "The staff and/or consultant competencies and resources necessary to assure successful conduct of the project will be provided. Prior approval of the Committee is required for staff hiring and salary...

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