State Action Flashcards
Basic idea:
Constitution is a constraint on government and only government
a) Government action applies to all levels of government, all employees acting in official capacity. i) 14th Amendment doesn’t restrict private action, § 5 does not empower congress to deal with private action, thus why commerce clause is used for the civil rights act of 1964 ii) If want to restrict discriminatory action by private parties Congress needs a statute to do so (1) Article 1 Section 8: Commerce Clause (a) Generally the commerce clause will allow Congress to enact statutes against individuals (2) Federal statutes must have a basis in Constitution: logic of the state action doctrine.
Three ways in which actions taken by non governmental actors has been deemed state action:
1) State enforcement of private choice (Shelley)
2) Actions of private parties are actions of the state if those are actions that are traditionally exclusively functions of the state. a) Marsh v. Alabama:
3) Active State Encouragement
1) State enforcement of private choice (Shelley)
a) Shelley v. Kramer: state action when the state enforces a law or enforces a private decision made pursuant to state law
i) Restrictive Covenants: no requirement that anybody apply restrictive covenants to homes, but if you had one in the deed/document and the state enforces it then it is state action.
b) Refusal to follow Shelley:
i) Gordon Case: guy assumed that will with restriction that the son must marry a Jewish girl in order to inherit money, court said that as a matter of estates law we will enforce this clause (cert denied)
ii) Sit in Cases: E.g. Woolworths: company said this is a whites only establishment, when sit-ins occurred Woolworths tried to remove them as trespassers, court did not decide the case under Shelley (i.e. did not say “this is state enforcement of private discrimination which is unacceptable”)
c) Takeaway: mere state enforcement does not convert private action into state action
2) Actions of private parties are actions of the state if those are actions that are traditionally exclusively functions of the state. a) Marsh v. Alabama:
i) Facts: Alabama says to Gulf Ship Building Co that they can build a town, but then the company says we don’t want the Jehovah’s Witnesses visiting even though normally this would be unacceptable for a normal town
ii) Ruling: setting up a town is traditionally exclusively a governmental function, thus creating this town is state action and thus they cannot infringe on free speech
b) Normally arises for things that look like law enforcement (state empowers a private entity to operate in law enforcement functions, e.g. private prisons)
i) Note: universities are traditionally run by the state, but not exclusively, thus it does not satisfy the test (thus private universities are not reached as state action)
c) Must be a nexus between the challenged action and a state decision.
i) Jackson:
(1) Suppose the state said we are going to license you, but you’re licensed by the state to deliver x services (cable, water, etc.) – to get a license you must comply with our requirements including the requirement that you don’t hold a hearing before shutting down power
(2) Result would be that this is state action because there is a link between a state decision and the action being challenged
ii) Moose Lodge:
(1) Suppose the state said we will give you a liquor license but only if you restrict membership based on race
(2) Result would be that this is state action because there is a link between a state decision and the action being challenged
iii) Mere fact of getting a state license or money does not turn the party into a state institution
(1) MIT/Cal Tech gets 60% of their funding from the government – is this is not the right type of connection
Active State Encouragement
a) Reichman vs. Mulke: if the state is not passive but instead actively encourages certain kinds of actions then they become state action
b) Burton v. Wilmington Parking Authority
i) Ruling: sufficient entanglement between the all white Coffee Shop and the state parking garage
(1) Coffee shop lead the public to believe they were related with the state
(2) Advertisements all over the garage
(3) Note: this was a race specific case, less reason to believe SCOTUS will do the same thing outside the area of race
