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Civil Rights
University of Kansas School of Law
McAllister, Stephen R.

                State Action
Monroe v. Pape
Supreme Court, 1961 (4)
–Rule – “Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken ‘under color of state law’.”
                • So every act of misconduct by a state or local official, could be a 1983 suit. 
Lugar v. Edmonson Oil Co.
Supreme Court, 1982 (50)
–Rule – if someone misuses state law there is no “under color of.”
–Rule – if a state statute is unconstitutional you can sue a private citizen who invokes that statute.
–Rule – finding state action for purposes of a 14th violation is always good enough for finding under color of state law for 1983. 
                • But, because not all 1983 cases have to be brought under the 14th, you could have “under color of” without having state action under the 14th. 
                • McAllister says he can’t think of a case where state action and under color of don’t align – it’s hard to find under color of without also finding state action. 
–Lugar under color of state law test:
                1. The deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state, or by a person for whom the state is responsible; and
                2. The party charged with deprivation must be a state actor.
–Sometimes you can have federal officials acting under color of state law (joint ventures or something); or you can have state officials acting under color of federal law (administering Social Security or Medicare).
Flagg Bros., Inc. v. Brooks
Supreme Court, 1978 (61)
–Rule – delegations of state actions only apply to traditional and exclusive state functions like elections and municipal functions.
                • So it doesn’t matter so much unless it’s exclusively a government function.
                • Resolving rent/contract disputes is not an exclusive state function.
–Rule – the more a state law just allows private actors to make choices, the less likely you have under color of state law; the more a state law directs private action, the more likely you have under color of.
Burton v. Wilmington Parking Authority
Supreme Court, 1961 (68)
–Privately-owned coffee shop in a publicly owned parking garage won’t serve blacks.
–SC says there is state action here b/c the state and the coffee shop are symbiotic b/c they public parking lot would not have been built without private lessees paying a significant sum in rent that was then used to finance the garage. 
• “The state has so far insinuated itself into a position of interdependence with Eagle that it must be recognized as a joint participant in a challenged activity . . . .”
Rendell-Baker v. Kohn
Supreme Court, 1982 (73)
–Kohn is president of a private school that gets a lot of public funding (state and federal) and commingles public and private funds.
                • Δ fired Π teacher.
–Π argues that the funding is enough for state action.
                • SC says funding alone isn’t enough.
–Π argues there is a lot of state regulation on the school.
                • SC says that there may be regulations, but those regulations didn’t result or influence the firing of the teacher.
–Π argues that the educational function is traditional and exclusive.
                • SC says no – even though educating maladjusted students is a public function, it’s never been exclusive.
–Π argues that it’s a Burton-style symbiotic relationship.
                • SC says it’s not the same kind of symbiosis – the school doesn’t have to exist and doesn’t have to take these kids in order for the state to do what it wants to do (unlike how it needed the coffee shop to build the parking garage). 
Polk County v. Dodson
Supreme Court, 1981 (81)
–Rule – Even though Public Defenders are paid by the state, they are adversaries and their purpose is totally contrary to the state’s interests. 
–That doesn’t make a ton of sense, but the SC didn’t want PDs to be sued by prisoners all the time. It’s a pragmatic judgment, not a principled judgment.
West v. Atkins
Supreme Court, 1988 (81)
–Rule – running prisons is a traditional and exclusive governmental function that is under color of. 
Black v. Indiana Area School District
3d Cir, 1993 (82)
–Bus driver working for an independent contract abuses a kid – state action?
                • No – independent contractor relationship prevails.
NCAA v. Tarkanian
Supreme Court, 1988 (84)
–SC finds that NCAA is a private actor b/c it’s voluntary, composed of public and private schools; really it was UNLV acting under color of the NCAA.
–SC said it would be different if all the schools were in one state and were public: See:
Brentwood Academy v. Tennessee Secondary School Athletic Assosiation
Supreme Court, 2001 (99)
-–5-4 SC finds that a high school athletic association composed of 84% public high schools, whose board members are mos

l it be repeated?
Idaho v. Coeur d’Alene Tribe of Idaho
Supreme Court, 1997 (Supp. 23)
— General Rule – All you need is an ongoing violation of federal law and a request for prospective relief.
–This one has lots of silliness going on with whether a sovereign can sue another sovereign and whether you have to do balancing of interests and possible remedies
Verizon Maryland, Inc. v. Public Service Commission of Maryland
Supreme Court, 2002 (Supp. 31)
–Rule – the merits of the claim do not affect whether a suit may be brought under Young.
                • uphold’s O’Connor’s straightforward reading that all you need is an ongoing federal law violation and prospective relief.
–Rule – giving the federal courts jurisdiction to review the state commission ruling does not give a remedy like in Seminole Tribe that precludes use of Young.
                • McA says that this shows the SC is going to be wary of Seminole Tribe’s “other remedy” exception to Young.
Alden v. Maine
Supreme Court, 1999 (Supp. 34)
–Rule – states are immune from suits in their own courts based on federal law as a matter of common law/sovereignty/constitutional framework.
                • States can waive if they want, but have to affirmatively waive.
Monell v. New York City Dep’t of Social Services
Supreme Court, 1978
–11th does not protect municipalities.
–Rule – cities are persons; Monroeoverruled.
–Rule – municipality is liable when it directly causes a violation through an official policy or custom.
                • Injury made solely by employees of the municipality is not sufficient to subject the municipality to liability.
                • So, you need a municipal choice to employ the policy or custom, then you need the injury to be caused by that choice.
Will v. Michigan Dep’t of State Police
Supreme Court, 1989 (252)
–Rule – state is not a person under 1983.
                • Basically driven all by the 11th; statutory interpretation and such w