Johnson v. Pinkerton Academy, s. 87-2140

• Citation: 861 F.2d 335
• Decision Date: 07 September 1988
• Docket Number: Nos. 87-2140,s. 87-2140
• Parties: 48 Empl. Prac. Dec. P 38,445, 50 Ed. Law Rep. 74 Kenneth JOHNSON, Plaintiff, Appellant, v. PINKERTON ACADEMY, et al., Defendants, Appellees. Kenneth JOHNSON, Plaintiff, Appellee, v. PINKERTON ACADEMY, et al., Defendants, Appellants. to 87-2142. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 335

861 F.2d 335

48 Empl. Prac. Dec. P 38,445, 50 Ed. Law Rep. 74

Kenneth JOHNSON, Plaintiff, Appellant, v. PINKERTON ACADEMY, et al., Defendants, Appellees.

Kenneth JOHNSON, Plaintiff, Appellee, v. PINKERTON ACADEMY, et al., Defendants, Appellants.

Nos. 87-2140 to 87-2142.

United States Court of Appeals First Circuit.

Heard Sept. 7, 1988.

Decided Nov. 18, 1988.

Rehearing and Rehearing En Banc Denied Dec. 22, 1988.

I. Michael Winograd with whom Peter C. Hildreth, Scott Hood and Winograd P.A., Concord, N.H., were on brief, for Kenneth Johnson.

Jack B. Middleton with whom Kevin M. Fitzgerald and McLane, Graf, Raulerson & Middleton, P.A., Manchester, N.H., were on brief, for Pinkerton Academy, et al.

Before CAMPBELL, Chief Judge, and ALDRICH and SELYA, Circuit Judges.

BAILEY ALDRICH, Senior Circuit Judge.

In 1981, plaintiff Kenneth Johnson was hired as a teacher by defendant Pinkerton Academy on a one year, renewable, contract, subsequently renewed. He agreed to conform to defendant's rules of conduct, of which he was given a copy. One of the rules was that teachers could not wear beards. Plaintiff was clean shaven at the time, and voiced no objection. Thereafter he engaged in much civil rights discussion with his classes, and his views ultimately caused him to decide to grow a beard as a means of assertion. The confrontation with the school authorities proving a stalemate, plaintiff was discharged in January, 1984. He now seeks declaratory and injunctive relief, and money damages under 42 U.S.C. Sec. 1983.

While it may be difficult for some to see why this matter was so important, ¹ plaintiff's interest clearly not being cosmetic, Shakespeare's recitation of the seven ages of man is not condemnatory. ² However, plaintiff initially had to realize that he was obliged to come within the confines of 42 U.S.C. Sec. 1983 and show that defendant's objected-to conduct was, at least in part, state action. In this the district court held in his favor, but it ultimately found against him on the merits, viz., finding that defendant's forbidding beards to teachers was not inherently unreasonable. On this appeal we do not reach this latter finding, but hold that, in spite of a very thoughtful opinion, the court erred with respect to state action.

Before discussing the authorities, we note the error in plaintiff's approach. Defendant's principal case is Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982), also involving a private school, in which this court was affirmed in its conclusion that the school was not a state actor. As here, the school was privately formed and privately owned, operating on private property and conducted by private individuals, all of whom were chosen, and administered, by private management. Plaintiff says the "Rendell-Baker Court utilized a series of tests before concluding that the school's actions were not attributable to the state." Plaintiff has it just backwards. Where one starts with an admittedly private institution the question is not what tests show its actions are not attributable to the state, but, rather, what shows they are attributable. In this circumstance, plaintiff has the burden of showing "the State is responsible for the specific conduct of which the plaintiff complains." Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2786, 73 L.Ed.2d 534 (1982) (emphasis in original).

It so happened that Pinkerton Academy had already been declared a state actor. Doe v. Hackler, 316 F.Supp. 1144 (D.N.H.1970) (Bownes, J.). In Hackler the court relied on three factors: (1) "directly accepting state money as tuition;" (2) the power of the State Board of Education to approve facilities and equipment; and (3) the provisions of New Hampshire Rev.Stat.Ann. 194:22. Hackler, 316 F.Supp. at 1147. The present district court correctly recognized that the first two factors were too broad and had been rejected by Rendell-Baker as applicable to every private contractor who does public work. The court held Rendell-Baker distinguishable, however, on two grounds: that the Court indicated it would reach a different result if the private contractor was performing a function "traditionally the exclusive prerogative of the State," 457 U.S. at 842 (emphasis in original), and the terms of the New Hampshire statute relied on in Hackler.

It is true that in noting the Rendell-Baker Court's finding that educating specially disadvantaged and troubled children was not an exclusive state operation, the district court was able to assert a present distinction. It is our function, however, to search for the Supreme Court's general intent, not for ways to distinguish its decisions. The Court grants certiorari to determine principles, not to right some purely factual error. The reasoning of the dissent itself confirms that the Rendell-Baker Court was interested in much more than schools for troubled children.

As to the present, New Hampshire history shows that educating children of high school age was not traditionally an exclusive public function. Phillips Exeter Academy, and St. Paul's School, indisputably private schools, are more than a century old. Plaintiff's charging that comparison with them is "ludicrous" does not make them disappear. Granted that the state requires that its children, to a certain age, be educated, even to the extent of assuming full tuition cost of all who do not voluntarily pay their own way, it does not follow that the mechanics of furnishing the education is exclusively a state function. We turn to the example of a private road contractor. The maintaining of public roads would seem a classically exclusive state function, but this does not make a private contractor a state operator, owing Sec. 1983 obligations to its employees. Cf. Rendell-Baker v. Kohn, 457 U.S. at 840-41, 102 S.Ct. at 2770-71.

Moreover, while we need not finally decide, the principle of exclusive state function would seem entirely remote from this case. We believe that by exclusive function the Court had in mind that where a function was exclusively the state's it could not be permitted, by delegation, to escape its responsibilities. If there were responsibilities in the present case, they would relate to students, and not to teachers. See Rendell-Baker v. Kohn, 641 F.2d 14, 26 (1st Cir.1981). Except as their conduct might affect their students, the state had no concern with defendant's...