No State Actor Left Behind: Rethinking Section 1983 Liability in the Context of Disciplinary Alternative Schools and Beyond
86 Pages Posted: 24 Jul 2012
Date Written: May 1, 2012
Publicly-funded privately-run disciplinary alternative schools sit at the intersection of two of the most important phenomena of our time: the privatization of services once considered the core domain of government, and the diversion of certain students (primarily poor and/or of color) out of the educational system and into the criminal justice system. Although these schools seem to offer a solution to school districts struggling to meet state and federal standards while serving students with special needs, they also present a classic state action problem when the constitutional rights of students at those schools are violated. This article uses these schools as a lens through which to explore state action doctrine as applied to private parties who run institutions that serve individuals who have been involuntarily referred by the state. In particular, it (1) introduces the phenomena of disciplinary alternative schools and the privatization of education; (2) lays out the constitutional rights of students at these schools that are particularly vulnerable to infringement; (3) explores the applicable state action doctrine; (4) explains the importance of finding state action and obtaining injunctive relief; and (5) proposes a doctrinal test for identifying state action in the disciplinary alternative school context and beyond. The article concludes that state action exists where students are involuntarily referred by the state to the school in question, the actions complained of are not peripheral to the government contract, and the actions complained of are committed by employees cloaked in the authority of the state.
Keywords: state action, disciplinary alternative schools, school to prison pipeline, 1983, privatization, alternative schools, federal jurisdiction
JEL Classification: I2, J7, K42
Suggested Citation: Suggested Citation