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57. Should the court grant the university's motion to dismiss?
The university moved to dismiss the professor's lawsuit on the ground that the U.S. Constitution does not provide the professor with a cause of action in this case.
The professor sued the university, claiming only that her discharge violated her constitutional right to freedom of speech.
A professor at the university was a part-time columnist for the local newspaper. In one of her published columns, the professor argued that «religion has become a negative force in society.» The university subsequently discharged the professor, giving as its sole reason for the dismissal her authorship and publication of this column.
A private university is owned and operated by a religious organization. The university is accredited by the department of education of the state in which it is located. This accreditation certifies that the university meets prescribed educational standards. Because it is accredited, the university qualifies for state funding for certain of its operating expenses. Under this funding program, 25 percent of the university's total operating budget comes from state funds.
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«State action» also exists whenever a state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens. However, there must be some sort of affirmative act by the state approving the private action; it is not enough that the state permits the conduct to occur. It is not enough that the state has provided partial funding, accreditation, or regulation of a private university to render the university's conduct state action. See Regents of Univ. of Cal. v. Bakke, 438 US 265 (1978) (noting that the «Court has never held that the mere receipt of federal or state funds is sufficient to make the recipient a federal or state actor»); Norwood v. Harrison, 413 U. S. 455 (1973) (finding that a private school that receives state funding will be considered a state actor if «tangible financial aid» along with a «significant tendency to facilitate, reinforce, and support private discrimination»).
MBE Tip: For the actions of a private entity to satisfy the «state action» requirement, the state must be «significantly involved» in the private entity. Merely granting a license or providing essential services is insufficient.
B is correct. The court should grant the motion to dismiss because the protections afforded by the Fourteenth Amendment apply only to conduct that is attributable to the state. Because the professor was discharged by a private university and not by a state actor, and the state was not significantly involved in the private university, nor did it take an affirmative act approving of the firing of the professor, the Fourteenth Amendment does not apply.
A is incorrect. This answer reaches the correct answer with the wrong reasoning. Although the court should grant the motion to dismiss, it is not because of the protections afforded by the First and Fourteenth Amendments, neither of which apply to the university's decision to discharge the professor. As explained above, the university's action does not amount to state action, which is necessary for the Fourteenth Amendment to apply.
C is incorrect. The accreditation and partial funding of the university by the state are insufficient to constitute state action because that requires the state to affirmatively facilitate, encourage, or authorize the discrimination. The state must be significantly involved and take an affirmative act to support the private entity's action, which was not the case here. The Court has held that the accreditation, regulation, and partial funding of a university by the state does not render the university's conduct state action.
D is incorrect. This is a misstatement of the law. There is no provision of the Constitution creating a cause of action against a state-accredited institution that restricts freedom of speech as a condition of employment. As explained above, state accreditation of an institution and partial state funding do not constitute sufficient involvement by the state to render the institution's conduct state action. Therefore, the protections afforded by the Fourteenth Amendment do not apply to the university's discharge of the professor.