Online Attorney

er the juvenile laws). 1175 This single rule, the Court explained, will permit school authorities ‘‘to regulate their conduct according to the dictates of reason and common sense.’’ 469 U.S. at 343. Rejecting the suggestion of dissenting Justice Stevens, the Court was ‘‘unwilling to adopt a standard under which the legality of a search is dependent upon a judge’s evaluation of the relative importance of various school rules.’’ 469 U.S. at 342 n.9. 1176 467 U.S. 253 (1984). On a few occasions the Court has considered whether rights accorded to adults during investigation of crime are to be accorded juveniles. In one such case the Court ruled that a juvenile undergoing custodial interrogation by police had not invoked a Miranda right to remain silent by requesting permission to consult with his probation officer, since a probation officer could not be equated with an attorney, but indicated as well that a juvenile’s waiver of Miranda rights was to be evaluated under the same totality- of-the-circumstances approach applicable to adults. That approach ‘‘permits—indeed it mandates—inquiry into all the circumstances surrounding the interrogation . . . includ[ing] evaluation of the juvenile’s age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him . . . .’’ 1173 In another case the Court ruled that, while the Fourth Amendment applies to searches of students by public school authorities, neither the warrant requirement nor the probable cause standard is appropriate. 1174 Instead, a simple reasonableness standard governs all searches of students’ persons and effects by school authorities. 1175 The Court ruled in Schall v. Martin 1176 that preventive detention of juveniles does not offend due process when it serves the legitimate state purpose of protecting society and the juvenile from potential consequences of pretrial crime, when the terms of confinement serve those legitimate purposes and are nonpunitive, and when procedures provide sufficient protection against erroneous VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00213 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1884 AMENDMENT 14—RIGHTS GUARANTEED 1177 See SAMUEL M. DAVIS, RIGHTS OF JUVENILES: THE JUVENILE JUSTICE SYSTEM, ch. 4, ?Waiver of Jurisdiction? (2d ed. 1989). 1178 492 U.S. 361 (1989). 1179 Thompson v. Oklahoma, 487 U.S. 815 (1988). 1180 See analysis of Eighth Amendment principles, under ‘‘Capital Punishment,’’ supra. 1181 Only in Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270 (1940), did the Court earlier approach consideration of the problem. Other cases reflected the Court’s concern with the rights of convicted criminal defendants and generally required due process procedures or that the commitment of convicted criminal defendants follow the procedures required for civil commitments. Specht v. Patterson, 386 U.S. 605 (1967); Baxstrom v. Herold, 383 U.S. 107 (1966); Lynch v. Overholser, 369 U.S. 705 (1962); Humphrey v. Cady, 405 U.S. 504 (1972); Jackson v. Indiana, 406 U.S. 715 (1972); McNeil v. Director, 407 U.S. 245 (1972). Cf. Murel v. Baltimore City Criminal Court, 407 U.S. 355 (1972). and unnecessary detentions. A statute authorizing pretrial detention of accused juvenile delinquents on a finding of ‘‘serious risk’’ that the juvenile would commit crimes prior to trial, providing for expedited hearings (the maximum possible detention was 17 days), and guaranteeing a formal, adversarial probable cause hearing within that period, was found to satisfy these requirements. Each state has a procedure by which juveniles may be tried as adults. 1177 With the Court having clarified the consitutional requirements for imposition of capital punishment, it was only a matter of time before the Court would have to determine whether states may subject juveniles to capital punishment. In Stanford v. Kentucky, 1178 the Court held that the Eighth Amendment does not categorically prohibit imposition of the death penalty for individuals who commit crimes at age 16 or 17; earlier the Court had invalidated a statutory scheme permitting capital punishment for crimes committed before age 16. 1179 In weighing validity under the Eighth Amendment, the Court has looked to state practice to determine whether a consensus against execution exists. 1180 Still to be considered by the Court are such questions as the substantive and procedural guarantees to be applied in proceedings when the matter at issue is non-criminal delinquent behavior. The Problem of Civil Commitment.—As is the case with juvenile offenders, several other classes of persons are subject to confinement by court processes deemed civil rather than criminal. Within this category of ‘‘protective commitment’’ are involuntary commitments for treatment of insanity and other degrees of mental incompetence, retardation, alcoholism, narcotics addiction, sexual psychopathy, and the like. Inasmuch as the deprivation of liberty is as severe as that experienced by juveniles adjudged delinquent, can be accompanied with harm to reputation, it is surprising that the Court has only recently dealt with the issue. 1181 VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00214 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1885 1182 422 U.S. 563 (1975). The Court bypassed ‘‘the difficult issues of constitutional law’’ raised by the lower courts’ resolution of the case, that is, the right to treatment of the involuntarily committed, discussed under ‘‘Liberty Interests of Retarded and Mentally Ill: Commitment and Treatment,’’ supra. 1183 422 U.S. at 576. 1184 422 U.S. at 576-77. The Court remanded to allow the trial court to determine whether Donaldson should recover personally from his doctors and others for his confinement, under standards formulated under 42 U.S.C. § 1983. See Wood v. Strickland, 420 U.S. 308 (1975); Scheuer v. Rhodes, 416 U.S. 232 (1974). 1185 O’Connor v. Donaldson, 422 U.S. 563, 573 (1975). 1186 Zinermon v. Burch, 494 U.S. 113 (1990). In O’Connor v. Donaldson, 1182 the Court held that ‘‘a State cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.’’ 1183 The trial jury had found that Donaldson was not dangerous to himself or to others, and the Court ruled that he had been unconstitutionally confined. 1184 Left to another day were such questions as ‘‘when, or by what procedures, a mentally ill person may be confined by the State on any of the grounds which, under contemporary statutes, are generally advanced to justify involuntary confinement of such a person—to prevent injury to the public, to ensure his own survival or safety, or to alleviate or cure his illness’’ 1185 and the right, if any, to receive treatment for the confined person’s illness. To conform to due process requirements, procedures for voluntary admission should recognize the possibility that persons in need of treatment may not be competent to give informed consent; this is not a situation where availability of a meaningful postdeprivation remedy can cure the due process violation. 1186 Procedurally, it is clear that an individual’s liberty interest in being free from unjustifiable confinement and from the adverse social consequences of being labeled mentally ill requires government to assume a greater share of the risk of error in proving the existence of such illness as a precondition to confinement. Thus, the evidentiary standard of a preponderance, normally used in litigation between private parties, is constitutionally inadequate in commitment proceedings. On the other hand, the criminal standard of beyond a reasonable doubt is not necessary because the state’s aim is not punitive and because some or even much of the consequence of an erroneous decision not to commit may fall upon the individual. Moreover, the criminal standard addresses an essentially factual question, whereas interpretative and predictive determinations must also be made in reaching a conclusion on commitment. VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00215 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1886 AMENDMENT 14—RIGHTS GUARANTEED 1187 Addington v. Texas, 441 U.S. 418 (1979). See also Vitek v. Jones, 445 U.S. 480 (1980) (transfer of prison inmate to mental hospital). 1188 442 U.S. 584 (1979). See also Secretary of Public Welfare v. Institutionalized Juveniles, 442 U.S. 640 (1979). 1189 442 U.S. at 598-617. The dissenters agreed on this point. Id. at 626–37. 1190 442 U.S. at 617-20. The dissenters would have required a preconfinement hearing. Id. at 637–38. 1191 442 U.S. at 617. The dissent would have mandated a formal postadmission hearing. Id. at 625–26. 1192 Shelley v. Kraemer, 334 U.S. 1, 13 (1948). Similarly, the due process clause of the Fifth Amendment, with its equal protection component, limits only federal governmental action and not that of private parties, as is true of each of the provisions of the Bill of Rights. The scope and reach of the ‘‘state action’’ doctrine is thus The Court therefore imposed a standard of ‘‘clear and convincing’’ evidence. 1187 Difficult questions of what due process may require in the context of commitment of allegedly mentally ill and mentally retarded children by their parents or by the State when such children are wards of the State were confronted in Parham v. J.R. 1188 Under the challenged laws there were no formal preadmission hearings, but psychiatric and social workers did interview parents and children and reached some form of independent determination that commitment was called for. The Court acknowledged the potential for abuse but balanced this against such factors as the responsibility of parents for the care and nurture of their children and the legal presumption that parents usually act in behalf of their children’s welfare, the independent role of medical professionals in deciding to accept the children for admission, and the real possibility that the institution of an adversary proceeding would both deter parents from acting in good faith to institutionalize children needing such care and interfere with the ability of parents to assist with the care of institutionalized children. 1189 Similarly, the same concerns, reflected in the statutory obligation of the State to care for children in its custody, caused the Court to apply the same standards to involuntary commitment by the Government. 1190 Left to future resolution was the question of the due process requirements for postadmission review of the necessity for continued confinement. 1191 EQUAL PROTECTION OF THE LAWS Scope and Application State Action.—‘‘[T]he action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful.’’ 1192 The Amendment by its express terms provides that ‘‘[n]o VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00216 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1887 the same whether a State or the National Government is concerned. See CBS v. Democratic Nat’l Comm., 412 U.S. 94 (1973). 1193 Civil Rights Cases, 109 U.S. 3, 11 (1883). With regard to the principal issue in this decision, the limitation of the state action requirement on Congress’ enforcement powers, see ‘‘State Action,’’ infra. 1194 Recently, however, because of broadening due process conceptions and the resulting litigation, issues of state action have been raised with respect to the due process clause. See, e.g., Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974); Flagg Bros. v. Brooks, 436 U.S. 149 (1978); Rendell-Baker v. Kohn, 457 U.S. 830 (1982); Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982); Blum v. Yaretsky, 457 U.S. 991 (1982). 1195 Terry v. Adams, 345 U.S. 461, 473 (1953) (concurring). The Justice was speaking of the state action requirement of the Fifteenth Amendment. The Nineteenth and Twenty-sixth Amendments also hinge on state action; the Thirteenth Amendment, banning slavery and involuntary servitude, does not. 1196 United States v. Raines, 362 U.S. 17, 25 (1960). A prime example is the statutory requirement of racially segregated schools condemned in Brown v. Board of Education, 347 U.S. 483 (1954). And see Peterson v. City of Greenville, 373 U.S. 244 (1963), holding that trespass convictions of African Americans ‘‘sitting-in’’ at a lunch counter over the objection of the manager cannot stand because of a local ordinance commanding such separation, irrespective of the manager’s probable attitude if no such ordinance existed. State . . .’’ and ‘‘nor shall any State . . .’’ engage in the proscribed conduct. ‘‘It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject matter of the amendment. It has a deeper and broader scope. It nullifies and makes void all State legislation, and State action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty, or property without due process of law, or which denies to any of them the equal protection of the laws.’’ 1193 While the state action doctrine is equally applicable to denials of privileges or immunities, due process, and equal protection, it is actually only with the last great right of the Fourteenth Amendment that the doctrine is invariably associated. 1194 ‘‘The vital requirement is State responsibility,’’ Justice Frankfurter once wrote, ‘‘that somewhere, somehow, to some extent, there be an infusion of conduct by officials, panoplied with State power, into any scheme’’ to deny protected rights. 1195 Certainly, state legislation commanding a discriminatory result is state action condemned by the first section of the Fourteenth Amendment, and is void. 1196 But the difficulty for the Court has begun when the conduct complained of is not so clearly the action of a State but is, perhaps, the action of a minor state official not authorized or perhaps forbidden by state law so to act, or is, perhaps on the other hand, the action of a private party who nonetheless has some relationship with governmental authority. The continuum of state action ranges from obvious legislated denial of equal protection to private action that is no longer so sig- VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00217 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1888 AMENDMENT 14—RIGHTS GUARANTEED 1197 Ex parte Virginia, 100 U.S. 339, 346–47 (1880). 1198 Lugar v. Edmondson Oil Co., 457 U.S. 922, 936–37 (1982). ‘‘Freedom of the individual to choose his associates or his neighbors, to use and dispose of his property as he sees fit, to be irrational, arbitrary, capricious, even unjust in his personal relations are things all entitled to a large measure of protection from governmental interference. This liberty would be overridden in the name of equality, if the structures of the amendment were applied to governmental and private action without distinction. Also inherent in the concept of state action are values of federalism, a recognition that there are areas of private rights upon which federal power should not lay a heavy hand and which should properly be left to the more precise instruments of local authority.’’ Peterson v. City of Greenville, 373 U.S. 244, 250 (1963) (Justice Harlan concurring). 1199 ‘‘Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.’’ Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961). nificantly related to state action that the Amendment applies. The prohibitions of the Amendment ‘‘have reference to actions of the political body denominated by a State, by whatever instruments or in whatever modes that action may be taken. A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State’s power, his act is that of the State.’’ 1197 ‘‘Careful adherence to the ‘state action’ requirement preserves an area of individual freedom by limiting the reach of federal law and federal judicial power. It also avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed. A major consequence is to require the courts to respect the limits of their own power as directed against state governments and private interests. Whether this is good or bad policy, it is a fundamental fact of our political order.’’ 1198 That the doctrine serves certain values and disserves others is not a criticism of it but a recognition that in formulating and applying the several tests by which the presence of ‘‘state action’’ is discerned, 1199 the Court has considerable discretion and the weights of the opposing values and interests will lead to substantially different applications of the tests. Thus, following the Civil War, when the Court sought to reassert federalism values, it imposed a rather rigid state action standard. During the civil rights movement of the 1950s and 1960s, when almost all state action contentions were raised in a racial context, the Court generally found the presence of state action. As VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00218 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1889 1200 Brown v. Board of Education, 347 U.S. 483 (1954). 1201 See ‘‘Brown’s Aftermath,’’ supra. 1202 Compare Washington v. Seattle School Dist., 458 U.S. 457 (1982), with Crawford v. Los Angeles Bd. of Educ., 458 U.S. 527 (1982). 1203 Keyes v. Denver School District, 413 U.S. 189, 208 (1973) (emphasis by Court). See also Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 457 n.5 (1979). 1204 413 U.S. at 208-13. The continuing validity of the Keyes shifting-of-the-burden principle, after Washington v. Davis, 426 U.S. 229 (1976), and Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406 (1977), was asserted in Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 455–458 & n.7, 467–68 (1979), and Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 540–42 (1979). it grew more sympathetic to federalism concerns in the late 1970s and 1980s, the Court began to reassert a strengthened state action doctrine, primarily but hardly exclusively in nonracial cases. Operation of the state action doctrine was critical in determining whether school systems were segregated unconstitutionally by race. The original Brown cases and subsequent ones arose in the context of statutorily mandated separation of the races and occasioned therefore no controversy in finding state action. 1200 The aftermath in the South involved not so much state action as the determination of the remedies necessary to achieve a unitary system. 1201 But if racial segregation is not the result of state action in some aspect, then its existence is not subject to constitutional remedy. 1202 Distinguishing between the two situations has occasioned much controversy. Confronting in a case arising from Denver, Colorado, the issue of a school system in which no statutory dual system had ever been imposed, the Court restated the obvious principle that racial segregation caused by ‘‘intentionally segregative school board actions’’ is de jure and not de facto, just as if it had been mandated by statute. ‘‘[T]he differentiating factor between de jure segregation and so-called de facto segregation . . . is purpose or intent to segregate.’’ 1203 Where it is proved that a meaningful portion of a school system is segregated as a result of official action, the official agency must bear the burden of proving that other school segregation within the system is adventitious and not the result of official action. It is not the responsibility of complainants to show that each school in a system is de jure segregated to be entitled to a system- wide desegregation plan. 1204 Moreover, the Court has also apparently adopted a rule to the effect that if it can be proved that at some time in the past a school board has purposefully maintained a racially separated system, a continuing obligation to dismantle that system can be said to have devolved upon the agency at that earlier point so that its subsequent actions can be held to a standard of having promoted desegregation or of not having promoted it, so that facially neutral or ambiguous school board policies VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00219 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1890 AMENDMENT 14—RIGHTS GUARANTEED 1205 Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 458–61 (1979); Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 534–40 (1979). 1206 Milliken v. Bradley, 418 U.S. 717, 744–45 (1974). 1207 Ex parte Virginia, 100 U.S. 339 (1880). Similarly, the acts of a state governor are state actions, Cooper v. Aaron, 358 U.S. 1, 16–17 (1958); Sterling v. Constantin, 287 U.S. 378, 393 (1932), as are the acts of prosecuting attorneys, Mooney v. Holohan, 294 U.S. 103, 112, 113 (1935), state and local election officials, United States v. Classic, 313 U.S. 299 (1941), and law enforcement officials. Griffin v. Maryland, 378 U.S. 130 (1964); Monroe v. Pape, 365 U.S. 167 (1961); Screws v. United States, 325 U.S. 91 (1945). One need not be an employee of the State to act ‘‘under color of’’ state law; he may merely participate in an act with state officers. United States v. Price, 383 U.S. 787 (1966). 1208 118 U.S. 356 (1886). 1209 Screws v. United States, 325 U.S. 91 (1945); Williams v. United States, 341 U.S. 97 (1951); United States v. Price, 383 U.S. 787 (1966). See also United States v. Raines, 362 U.S. 17, 25 (1960). As Justice Brandeis noted in Iowa-Des Moines can form the basis for a judicial finding of intentional discrimination. 1205 Different results, however, follow when inter-district segregation is an issue. Disregard of district lines is permissible by a federal court in formulating a desegregation plan only when it finds an inter-district violation. ‘‘Before the boundaries of separate and autonomous school districts may be set aside by consolidating the separate units for remedial purposes by imposing a cross-district remedy, it must first be shown that there has been a constitutional violation within one district that produces a significant segregative effect in another district. Specifically it must be shown that racially discriminatory acts of the state or local school districts, or of a single school district, have been a substantive cause of inter-district segregation.’’ 1206 The de jure/ de facto distinction is thus well established in school cases and is firmly grounded upon the ‘‘state action’’ language of the Fourteenth Amendment. It has long been established that the actions of state officers and agents are attributable to the State. Thus, application of a federal statute imposing a criminal penalty on a state judge who excluded African Americans from jury duty was upheld as within congressional power under the Fourteenth Amendment; the judge’s action constituted state action even though state law did not authorize him to select the jury in a racially discriminatory manner. 1207 The fact that the ‘‘state action’’ category is not limited to situations in which state law affirmatively authorizes discriminatory action was made clearer in Yick Wo v. Hopkins, 1208 in which the Court found unconstitutional state action in the discriminatory administration of an ordinance fair and non-discriminatory on its face. Not even the fact that the actions of the state agents are illegal under state law makes the action nonattributable to the State for purposes of the Fourteenth Amendment. 1209 ‘‘Misuse of power, pos- VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00220 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1891 Nat’l Bank v. Bennett, 284 U.S. 239, 246 (1931), ‘‘acts done ‘by virtue of public position under a State government . . . and . . . in the name and for the State’ . . . are not to be treated as if they were the acts of private individuals, although in doing them the official acted contrary to an express command of the state law.’’ Note that for purposes of being amenable to suit in federal court, however, the immunity of the States does not shield state officers who are alleged to be engaging in illegal or unconstitutional action. Ex parte Young, 209 U.S. 123 (1908). Cf. Screws v. United States, 325 U.S. at 147–48. 1210 United States v. Classic, 313 U.S. 299, 326 (1941). 1211 Cf. Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). 1212 Lombard v. Louisiana, 373 U.S. 267 (1963). No statute or ordinance mandated segregation at lunch counters but both the mayor and the chief of police had recently issued statements announcing their intention to maintain the existing policy of separation. Thus, the conviction of African Americans for trespass because they refused to leave a segregated lunch counter was voided. 1213 Griffin v. Maryland, 378 U.S. 130 (1964). Guard at private entertainment ground was also deputy sheriff; he could not execute the racially discriminatory policies of his private employer. See also Williams v. United States, 341 U.S. 97 (1951). 1214 Examples already alluded to include Lombard v. Louisiana, 373 U.S.

Online Attorney