BLUM v. YARETSKY 457 U.S. 991 (1982) RENDELL-BAKER v. KOHN 457 U.S. 830 (1982)

Following the Supreme Court's decision in burton v. wilmington parking authority (1961), commentators and lower courts began to ask whether a significant state subsidy to a private institution might make that institution's conduct into state action, subject to the limitations of the Fourteenth Amendment. Blum and Rendell-Baker ended two decades of speculation; by 7–2 votes, the Court answered "No."

In Blum patients in private nursing homes complained that they had been transferred to facilities offering lesser care without notice or hearing, in violation of their rights to procedural due process. Through the Medicaid program, the state paid the medical expenses of ninety percent of the patients; the state also subsidized the costs of the homes and extensively regulated their operation through a licensing scheme. The Court rejected each of these connections, one by one, as an argument for finding state action. The Constitution governed private conduct only when the state was "responsible" for that conduct; normally, such responsibility was to be found in state coercion or significant encouragement; these features were missing here.

In Rendell-Baker employees of a private school complained that they had been discharged for exercising their rights of freedom of speech, and fired without adequate procedural protections. The Court reached neither issue, because it concluded that the action of the school did not amount to state action. Although the school depended on public funding, no state policy—no coercion or encouragement—influenced the employees' discharge.

Dissents in the two cases were written by Justices william j. brennan and thurgood marshall, respectively. They argued that a consideration of all the interconnections between the institutions and the states, including the heavy subsidies, amounted to the kind of "significant state involvement" found in Burton. But considering the totality of circumstances in order to find state action is precisely what a majority of the burger court has been unwilling to do.

Kenneth L. Karst
(1986)