Section 1983 Claim Against Private School Dismissed Because Complained-Of Acts Were Not Committed Under Color of State Law

In Badiak v. Education and Assistance Corp., 2011 WL 233901 (E.D.N.Y. Jan. 24, 2011), Plaintiff asserted several causes of action (under federal and state law) alleging age discrimination, retaliation, and hostile work environment against her former employer, a non-profit agency that provided “educational, vocational, counseling, mediation and intervention services” and ran “learning centers” that functioned as “alternative high school programs that serve learning disabled, emotionally disabled and regular education students through individualized or small group instruction”.

The court (per Judge Spatt) dismissed plaintiff’s claim brought under 42 U.S.C. 1983 (“Section 1983”) because Plaintiff failed to allege that any of the allegedly wrongful acts were committed under color of state law.  (Plaintiff’s claim for attorney fees under 42 U.S.C. 1988 fell with plaintiff’s Section 1983 claim.)

The court summarized the law regarding Section 1983 in general, and its applicability to private entites in particular, as follows (internal quotation marks omitted): 

To state a claim under Section 1983, a plaintiff must allege that (1) the challenged conduct was attributable at least in part to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States.  … A threshold requirement of plaintiff’s constitutional claims is a demonstration that in denying plaintiff’s constitutional rights, the defendant’s conduct constituted state action.  … [P]rivate entities [such as the defendant here] may be held to constitutional standards if their actions are fairly attributable to the state. … Although there is no single test to identify state actions and state actors the Supreme Court has articulated a number of factors for consideration including:  1) whether the challenged activity results from the State’s exercise of coercive power; 2) whether the State provides significant encouragement, either overt or covert; 3) whether a private actor operates as a willful participant in joint activity with the State or its agents; 4) whether the private entity is controlled by an agency of the State; 5) whether the private entity has been delegated a public function by the State; and 6) whether the private entity is entwined with governmental policies, or whether government is entwined in [the private entities] management or control.
The court found that plaintiff’s complaint “lack[ed] any factual allegations that could plausibly support that the [defendant school’s] alleged actions could be fairly attributable to the state.”   It was able to “glean from the complaint [only] that [defendant’s] Learning Centers are a type of school” and held that “[t]he fact that a private entity such as the Defendant is a school, without more, does not state a plausible claim that the entity is a state actor.”  Notwithstanding the Supreme Court’s observation that “[t]here can be no doubt that the education of maladjusted high school students is a public function,” the plaintiff neither “allege[d] nor argue[d] that the services offered by the [defendant] were traditionally the exclusive prerogative of the State.”

The court further found that even if it were to consider plaintiff’s additional factual allegations – namely, that defendant received funding from New York State and that there were “potential preconditions and stipulations attached to that funding” – it would still dismiss plaintiff’s Section 1983 claim.  First, even if the defendant school received “substantial funding and grant money” from the state, the Supreme Court has held that a “school’s receipt of public funds does not make the … [school’s] decisions acts of the State.”  Second, “simply speculating that the funding may be accompanied by preconditions and stipulations is insufficient because to sustain a section 1983 action against a private entity the state must be involved not simply with some activity of the institution alleged to have inflicted injury upon a plaintiff but with the activity that caused the injury.”  Plaintiff’s allegation that such preconditions and stipulations exist was “purely speculative”, and she “failed to allege that any such preconditions or stipulations are directly related to the alleged misconduct underlying the complaint.” 

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