Private v State Action / Enforcement Clause Flashcards
How to ascribe Private Actions to the Gov = State Actions:
(2)
Protecting that Right under the Constitution.
1) “Public Function”, OR
2) State involvement.
What are some traditional Public Functions that were “exclusively” done by the state:
(5)
1) School- partially state funded.
2) Park- privately-operated. (Evans)
2) Political Party - State convention. (Allwright)
4)”Company Town”- not shopping centers.
(e.g. IBM in Binghamton)
5) Judicial role-
(lender foreclosing on collateral)
How to recognize State involvement:
4
1) Requiring / Commanding action.
(Shelly v Kraemer: CT Enforces racist contract.)
2) State benefits from the action.
(Burton v Wilmington: State rents parking lot to racist restaurant.)
BUT:
(Moose Lodge: Granting liquor license = NOT enough.)
3) Heavy participation.
(Brentwood Academy: Association regulates interscholastic sports in state, most members are public schools.)
4) Encouragement:
(Mulkey: State prohibited gov from interfering with individuals right to discrim.)
Acquiescence not enough: (Private utilities.)
5) Entanglement:
(Edmondson: State allows private litigant to exclude jurors on race-preemptory challenge.)
Power & Limits of 13th:
1) Prevent & Remedy: “badges and incidents of slavery.”
2) Must have a Statute:
-Congress can ban private racist acts
(Jones v Alfred: Housing Discrimination.)
Where private action meets State:
Congress can make it a crime to interfere with public school desegregation.
- BUT if specific racism has not been outlawed- then 13th cant reach it.
How to Enforce the Civil War amendments against State action that racially discriminates:
Remedial Powers are Broad - BUT - Response cant be broader than the Discrim:
“Congruent and Proportional” to the Discrim.
(Boerne v Flores: To ban conduct = Must show evidence that state frequently violated const rights in that area.)
(SC v Katzenbach: Congress may use 15th to ban valid voting literacy tests if history shows the tests may lead to violations.)
Is Congress expanding or contracting the scope of a const right:
Under Boerne v Flores:
Congress may neither expand nor contract the boundaries of a const right, even under power to enforce the post-Civil War Amendments.
Only courts may interpret and uncover const rights?
How did congress prohibit Private Racism in Public accommodations:
Congress used its interstate commerce power to create 1964 Civil Rights Act:
(Katzenbach: No mater how small the store or how little interstate revenue. Segregation imposes an artificial restriction on the flow of merchandise.)
When can Congress allow a person to sue State for damages for violation of Fed Anti-Discrim statute:
(2)
Only Civil War Amendments Enforcement power can overcome States immunity from private Fed suit under 11th:
Congress must shows:
1) Widespread past violations by the State; AND
2) Remedy chosen is “Congruent and proportional.”
(Kimel: Could protect age discrim but NOT w/out evidence of routine violations.)
When can Congress overcome State 11th immunity from private suit for damages for violation of Const right:
Anytime there is an actual violation
(US v Georgia)
Does not need to be Congruent & Proportional.
What are the 11th Protections and Limits on a State:
1) Only State is protected: NOT cities.
2) NO: Fed Damages Suits by citizens OR non-citizens.
3) Congress can only overcome 11th using Civil War Amendments enforcement.
4) State MAY be Enjoined:
(Ex parte Young: can sue to enjoin a state official from acting in way that would violate P’s const right or Fed law.)
5) State may NOT violate const rights.
