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Constitutional Law II
Villanova University School of Law
Samahon, Tuan N.

Constitutional Law II Outline
Professor Samahon
Spring 2013
Professor wants headings, case names, authors of opinions, and highlighted language.  Also, answer in IRAC
I.                    State Action
–          This is the first inquiry that must be asked: in order for the Constitution to come into effect, the state action threshold must be met.
o    Easy Case: If the government or one of its agencies has acted, then “state action” requirement has been met and then one can proceed on the merits. 
o    Hard Case: Whether one can apply constitutional norms to private actors?
§  Rule: State action is present when “there is a sufficiently close nexus between the State and the challenged action of the private entity so that the action of the latter may be fairly treated as that of the State itself.” (Jackson v. Metro). 
·         Three avenues by which the actions of a private individual may be attributed to the state:
o    1) Public Function Doctrine
o    2) Inextricable Entanglement
o    3) Coercion & Encouragement
§  These avenues are not mutually exclusive and advocates should argue alternative fall back theories of state action.
§  One needs to prove only one of these theories to establish state action.
Public Function Doctrine
–          When states delegate to private persons the power to perform quintessential public functions, the actions of the private persons becomes attributable to the state. 
–          Texas White Primary Cases – GOOD FOR PLAINTIFF (Characterize generality as “high.”)
o    Address history of litigation concerning the efforts of the Texas Democratic Party to exclude African-Americans from its primary elections.
§  Nixon v. Herndon (1927): Court voided a Texas statute that barred blacks from voting in Democratic Party primary
§  Nixon v. Condon (1932): This law was revised to empower each party to prescribe qualifications for voting in the party primary (Democratic Party adopted racial qualifications).
·         Democratic Party argued that political party was a private actor, but qualifications were struck down as violations of Equal Protection.
§  Grovey v. Townsend (1935): Democratic Party adopted a party rule that forbade blacks from becoming members of the party.
·         Court found no state action because Democratic Party was not a “state instrumentality.”
§  Smith v. Allwright (1944): Court overrules Grovey.
·         “When party membership is the essential qualification for voting in a primary to select nominees for a general election, the State makes the action of the party the action of the State.”
§  Terry v. Adams (1953): Texas Democrats reacted to Allwright by creating a voluntary club, the Jaybird Democratic Association.  This club had no formal or legal links to the Democratic Party, but the winners of the Jaybird pre-primaries nearly always ran unopposed. 
·         Court found state action here, but could not muster a majority opinion(plurality)
o    Four Justices: Adequate proof that Jaybirds were the Democrats, and therefore Allwright controlled.
–          Marsh v. Alabama (J. Black): GOOD FOR PLAINTIFF
o    Town of Chickasaw, AL, was owned entirely by the Gulf Shipbuilding Corp. (a private group).  Marsh was convicted of criminal trespass after she refused to stop distributing religious propaganda on the streets of Chickasaw. 
§  Marsh argued “free speech” and “free exercise” (Court rules for Marsh)
§  AL argued that Chickasaw was not a state actor (owned by a private company) and therefore the Constitutional protections did not apply to Marsh. 
·         The Company was performing a function that has been “traditionally and exclusively reserved to the state.” (Public Function language).
·         “The more an owner opens up his property for use by the public in general, the more do his rights become circumscribed by the constitutional rights of those who use it.”
·         “Ownership does not always mean absolute dominion.”
o    Hudgens v. NLRB (1976): Privately-owned shopping centers can be treated as public ONLY “when that property has taken on all the attributes of a town.”
§  This overruled Lloyd  which held that operators of a privately-owned shopping center were not state actors when they excluded others distributing anti-war literature.
–          Jackson v. Metropolitan Edison Co. (J. Rehnquist): GOOD FOR DEFENDANT/GOVERNMENT (Characterize generality as low – here “providing energy” rather than “infrastructure”)
o    Metro was a privately owned and operated company and Metro stopped providing energy to Ms. Jackson’s home.  She then brought suit.
§  Jackson argued that Metro was a monopoly heavily regulated by the state and therefore a state actor.
·         Metro is not a state actor for a few reasons:
o    1) Insufficient relationship b/t monopoly status and state actor
o    2) Metro’s function of providing energy is not a function “traditionally and exclusively reserved to the State.”
o    Blum v. Yaretsky (1982): The decision of private nursing home operators to discharge or transfer Medicaid patients to another facility was not state action because the decision to transfer a patient is not a function “traditionally and exclusively reserved to a State.”
Inextricable Entanglement
–          When a government becomes so entangled in the affairs of a private actor that it is difficult to separate their respective identities, the private actor will be deemed a state actor.
o    It is necessary to establish either an extraordinary degree of interdependence or necessarily joint action by private and public actors. 
–          Burton v. Wilmington Parking Authority (J. Clark): GOOD FOR PLAINTIFF
o    Eagle Coffee Shoppe, Inc. wouldn’t serve Burton because he was black.  He subsequently sued claiming violations of the EPC.  This coffee shop was a private entity, but it was located in a building owned by Wilmington Park Authority – an agency of the state.
§  Court found state action in this case for several reasons:
·         1) Gov’t (Wilmington Parking Authority) owned the building where the coffee shop was located
·         2) Upkeep and maintenance paid out of public funds
·         3) Building had both state & national flags
·         4) Shared profits b/t gov’t & private companies
§  Through its inaction, the Authority has elected to place its power, property, and prestige behind the admitted discrimination.
o    Rendell-Baker v. Kohn: Court held that the decision of a private school to discharge certain employees was not state action even though the school educated “maladjusted” students who could not be accommodated in public schools, almost all of its revenue came from the state, and it operated in conformity with state-imposed standards.
§  Court refused to apply Burton’s “financial interdependence” standard.   
–          Brentwood Academy v. Tennessee Secondary School Athletic Association (J. Souter): GOOD FOR PLAINTIFF
o    The Association placed sanctions on Brentwood for illegal recruiting.  Brentwood subsequently sued under the First Amendment  claiming that enforcement of the Association’s rules was state action and a violation of the 1st and 14th Amendments.
§  Court finds this Association to be a state actor and in violation of the 1st and 14th Amendments:
·         “The nominally private character of the Association is overborne by the pervasive entwinement of public institutions and public officials in its composition and workings…”
o    Supermajority of schools within Association are public schools (84%)
o    State board members are appointed to serve as members of the Association’s governing board. 
o    Moreover, Association’s ministerial employees are eligible for membership in state retirement system.
Coercion & Encouragement
–          Two separate tests:
o    1) When the gov’t coerces private action by law, the law itself is state action.
o    2) When gov’ts encourage rather than coerce private action, but that encouragement is extraordinary, unusual, or extreme, the nominal private action may be treated as state action.
–          Shelley v. Kraemer (J. Vinson): GOOD FOR PLAINTIFF TRYING TO ESTABLISH COERCION
o    The Shelleys wanted to buy a home that had a “restrictive covenant” barring any person from occupancy not of the Caucasian race (Shelleys were black).  Kraemer was a 3rd-party bigot seeking to enforce the covenant.  Shelleys argue that they have been denied Equal Protection of the laws.
§  The Court states that the restrictive covenant itself does not constitute state action because it is between private individuals, but the state action in this case is found with the court’s enforcement of the restrictive covenant. 
·         When 2 parties have a dispute and go to a gov’t branch to resolve that dispute, we have state action.
§  This case  is limited to its facts.
o    Barrows v. Jackson:  Court applied Shelley and concluded that delivery of damages through the courts constituted state action.
–          Reitman v. Mulkey (J. White):
o    CA voters amended the State Constitution and adopted Prop. 14, which authorized people to sell their homes to whomever they wanted.  The Mulkeys brought suit under the Unruh Act alleging that Reitman had refused to rent them an apartment on the basis of their race.
§  Prop. 14 establishes a “purported constitutional right to privately discriminate on grounds which admittedly would be unavailable under the 14th Amendment should state action be involved.”
§  The SCOTUS founds found that this law embodied in CA’s Constitution involved the State in racial discriminations and therefore found it invalid under the 14th Amendment.
·         The ultimate impact of this proposition would encourage and significantly involve the State in priva

o    This case involved the Santeria religion, and one aspect of their worship included animal sacrifice.  The Santerians attempted to establish a house of worship in the city, and the legislature quickly reacts by making animal sacrifice illegal through several ordinances. 
§  Laws that single out religious beliefs for unfavorable treatment are void per se. 
§  The Court found that these laws/ordinances specifically targeted the Santeria religion – Court finds evidence that laws were enacted to curb Santeria religion in particular.
·         Therefore, SCOTUS applies strict scrutiny:
o    1) Compelling State Interest
§  Public safety
§  Prevention of animal cruelty.
o    2) Narrowly Tailored
·         Court finds the state interests compelling, but the means were not narrowly tailored.
o    The texts of the ordinances were “gerrymandered” to proscribe religious killings but to exclude almost all secular killings.
o    Ordinances also suppress much more religious conduct than is necessary in order to achieve its legitimate ends. 
–          Locke v. Davey (J. Rehnquist): GOOD CASE FOR DEFENDANT
o    Washington state has a scholarship program to assist gifted students with college expenses.  However, the students may not use this scholarship at a college where they are pursuing a degree in devotional theology.  Davey was awarded this scholarship and wanted to attend a Christian college and wanted to pursue a degree in theology.  He was subsequently denied this scholarship.
§  Court finds this scholarship program constitutional.
·         “Play in the Joints” – There are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause.
o    This program is a “permissible accommodation.”
o    Court draws a distinction between a right and a privilege:
§  This scholarship program is a privilege and the State does not have to provide it. 
–          Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC:
o    ADA (American with Disabilities Act) action by EEOC against church over termination of commissioned minister (she had health problems and church would not give her leave).
§  Court recognizes a “ministerial exception” for interference with “internal church decisions affecting faith or mission of the church.”
–          Problem:
o    Eternal World Television Network insures 340 employees but “ensures that its insurance policies do not cover drugs, devices, services or procedures inconsistent with its faith, such as sterilization, contraception, or abortion.  Now, the HHS is enacted and it mandates that EWTN provide insurance benefits that includes contraception, sterilization and abortion. 
§  What arguments can be made here?
·         Plaintiff (EWTN):
o    EWTN will first argue for RFRA, which demands strict scrutiny, but if this argument fails, then EWTN will argue for Sherbert v. Verner.
§  Law is not facially neutral and discriminates against their religion.
§  Gov’t needs to show compelling state interest and the means are narrowly tailored to achieve this objective.
o    EWTN could also use Lukumi and argue that the statute specifically targets their religion.
o    EWTN could also argue “hybrid right” under Smith (say speech and therefore apply test under speech jurisprudence)
o    Also, don’t forget ministerial exception.  
·         Defendant (Federal Gov’t):
o    Gov’t will argue for more deferential standard of review, which was handed down in Employment v. Smith.  
§  Law is facially neutral and generally applicable to all employers and therefore is valid.
o    Gov’t can also argue that the proper remedy is the political process, and therefore EWTN should petition/lobby their legislator.
o    Locke v. Davey –
§  Play in the Joints
·         Free Exercise does not compel Court to rule for Plaintiff and Establishment Clause demands that Court does not.