KNOUSE – CONSTITUTION LAW II OUTLINE – Spring 2011
I. STATE ACTION DOCTRINE
a. THE CIVIL RIGHTS CASES
i. 13th am – abolishes slavery and involuntary servitude
1. Practically the only clause in the entire constitution that prevents one private citizen from doing something to another. This means congress has authority to reach private conduct it cant reach through 14th and 15th am
ii. 14th am – due process, equal protection, privileges and immunities
iii. Distinguish between constitutional and statutory ability of the government to prohibit discrimination based on race, gender, national origin, etc
1. 14th am (constitutional) doesn’t prohibit discrimination based on race but the Civil Rights Amendment (statutory) of 1964 does
b. EXCEPTIONS TO STATE ACTION DOCTRINE
i. RULE: only state actors can violate the federal constitution
ii. RULE: private conduct generally does not have to comply with Constitution
iii. EXCEPTION: private actors are treated as state actors when they are:
1. Engaged in a “public function” or
2. “entangled” with the state
3. 13th am applies to all conduct – private or public
4. These exceptions broaden the scope of who is a state actor
iv. Usually both sides have rights at stake, rather than one side being able to say “my rights have been violated”
1. Property rights are balanced against equality of rights of radical and religious rights, women, and free speech rights of protestors
2. Liberty/property rights of private entity on one side and equality, procedural due rights, and free speech on other side
3. How much is private actor acting like a public actor
4. Balancing of rights has changed over time
a. 1940s through mid-1960s: court tended to define state action and exception pretty broadly-equality and speech rights tended to trump property or liberty rights. Private entities/property owners that made their property open to the public generally had to comply with the constitution
b. Late 1960s through present: court has started to define state action a lot more narrowly. Property rights trump liberty and speech rights. Even private entities that are in some way opening their properties to the public, like malls, generally don’t have to respect constitutional rights. May have to comply with statutes that protect rights in some ways but they are not necessarily in violation of constitution.
v. Public Functions Exceptions
1. Private entity must comply with the Constitution if its performing a task that has traditionally, exclusively been done by the government
2. Relevant question is not simply whether a private group is serving a public function. The question is whether the function performed has traditionally been the exclusive prerogative of the state
3. Governing a town, conducting an election, operating a park, judicial system, NOT operating a shopping mall
Public Function
Not Public Function
Marsh v Alabama: town owned by a corporation, town serving a public
function and are therefore a state actor has never been
overruled but it is constrained to its circumstances
Balancing test: right of property owners v those of people
to enjoy freedom of press and religion
Broad interpretation: more open land to the public then
landowners rights are restricted by statutory and
constitutional rights of those who use the land
Terry v Adams: private club recommends democratic party candidates, they
exclude blacks, they ultimately determine who shall rule
county, therefore state action
Evans v Newton: municipality took care of a public park that somehow turned
into a private club that could exclude minorities because its
“predominate character” was municipal in nature
Amalgamated Food v Logan: mall treated as public or private actor? Applied
Balancing Test from Marsh, effectively extended
Marsh. More property is open to public, more
rights are restricted, can control disruptions in
other ways
Jackson v Metropolitan: private business = electric company with extensive state
regulation.
State regulation does NOT make it actions of state.
Narrow interpretation.
CURRENT DAY TEST: “whether the activity has been
traditionally, exclusively done by the govt”
Lloyd v Tanner: mall limit picketing of war-restrictions on speech has nothing to do
with purpose of the mall thus distinguishes from Logan
Lloyd overruled Logan in Hudgens case
Malls ARE state actors when someone is engaged in speech that is
related to the mall and cannot be relocated. Malls ARE NOT state
actors when someone is engaged in speech that is not related to the
mall and can be relocated
Hudgens v NLRB: malls not state actors, “self contained shopping center” and
therefore no right to free speech. Marsh still applicable but very
narrow. Based upon this ruling malls will probably never be public
functions, but may have entanglement. Operating a shopping
mall is not a traditional government function.
v. Entanglement Exception
1. Private conduct must comply with the Constitution if the government has COMMANDED, AUTHORIZED, ENCOURAGED, FACILITATED, HEAVY PARTICIPATION the unconstitutional conduct
2. TEST
a. Significant state involvement
b. State authorization or encouragement
i.Funding and license not enough
ii.Mere acquiescence is not enough
iii.State must have used coercive power or significant encouragement
c. KEY: did the state involvement cause the injury
d. The complaining party must also show that there is a sufficiently close NEXUS between the state and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the state itself
i.Nexus: regulation, state acquiescence are not enough. State must be coercing or encouraging the private actions or if the entity is performing something that is traditionally
state inspector is not enforcing
discrimination even though liquor license is heavily
regulated
State regulation and licensing ALONE is not enough to show state action. Need state SUPPORT, ENCOURAGEMENT, SYMBIOTIC RELATIONSHIP
7. Government Subsidies
a. Earlier cases have broad definition, more recent cases have narrow definition
b. Subsidies are not sufficient
Entanglement
No Entanglement
Norwood v. Harrison: state purchases and loans textbooks to racially
discriminatory private schools, NOT allowed
because it facilitates private discrimination.
Still good law, never been overruled
Rendell-Baker v. Kohn: private school dismissed picketing teachers but state funded
90-99% of school’s operation. Not enough, state didn’t use
coercive power or significant encouragement. Overwhelming
public funding + regulation
DOES NOT equal state action. NARROW entanglement
Private schools do not perform a public function because public schools do not perform a traditional, exclusive governmental function
Blum v. Yaretsky: Medicaid funded nursing home changes level of patient care without
hearing
Mere state regulation is not enough, NEXUS theory introduced in this
case (see above)
BLUM IS PROBABLY CURRENT STANDARD. Didn’t involve racial discrimination so court less likely to hold state regulation and funding NOT sufficient to create entanglement. Need encouragement and perhaps even state coercion. Use BURTON standard when facts INVOLVE racial discrimination.
8. Incentives Encouraging Violation of a Right
a. Can a state law that sanctions private discrimination convert that action into state action that is actionable
Entanglement
No Entanglement
Reitman v. Mulkey: its not just that CA repealed its discrimination laws, its that the state codified private discrimination
Dissent: doesn’t buy holding (above). Should we focus on intent or the text?
vi. Entwinement
1. State actor due to entwinement with actor
2. TEST: close nexus between state and challenged action that seemingly private behavior may be treated as that of the state itself – inquiry must be fact based (case by case)
