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267 (1963), in which certain officials had advocated continued segregation, Peterson v. City of Greenville, 373 U.S. 244 (1963), in which there were segregation-requiring ordinances and customs of separation, and Robinson v. Florida, 378 U.S. 153 (1964), in which health regulations required separate restroom facilities in any establishment serving both races. 1215 334 U.S. 1 (1948). 1216 334 U.S. at 13-14. sessed 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.’’ 1210 When the denial of equal protection is not commanded by law or by administrative regulation but is nonetheless accomplished through police enforcement of ‘‘custom’’ 1211 or through hortatory admonitions by public officials to private parties to act in a discriminatory manner, 1212 the action is state action. When a State clothes a private party with official authority, he may not engage in conduct forbidden the State. 1213 Beyond this point the discriminatory intent is that of a private individual and the question is whether a State has encouraged the effort or has impermissibly aided it. 1214 Of notable importance and a subject of controversy since it was decided is Shelley v. Kraemer. 1215 There, property owners brought suit to enforce a racially restrictive covenant, seeking to enjoin the sale of a home by white sellers to black buyers. The covenants standing alone, Chief Justice Vinson said, violated no rights protected by the Fourteenth Amendment. ‘‘So long as the purposes of those agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been no action by the State and the provisions of the Amendment have not been violated.’’ However, that was not all. ‘‘These are cases in which the purposes of the agreements were secured only by judicial enforcement by state courts of the restrictive terms of the agreements.’’ 1216 Establishing that the precedents VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00221 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1892 AMENDMENT 14—RIGHTS GUARANTEED 1217 334 U.S. at 19. In Hurd v. Hodge, 334 U.S. 24 (1948), the Court outlawed judicial enforcement of restrictive covenants in the District of Columbia as violative of civil rights legislation and public policy. Barrows v. Jackson, 346 U.S. 249 (1953), held that damage actions for violations of racially restrictive covenants would not be judicially entertained. 1218 Rice v. Sioux City Memorial Park Cemetery, 245 Iowa 147, 60 N.W. 2d 110 (1953), aff’d by an equally divided Court, 348 U.S. 880 (1954), rehearing granted, judgment vacated & certiorari dismissed, 349 U.S. 70 (1955); Black v. Cutter Laboratories, 351 U.S. 292 (1956). The central issue in the ‘‘sit-in’’ cases, whether state enforcement of trespass laws at the behest of private parties acting on the basis of their own discriminatory motivations, was evaded by the Court, in finding some other form of state action and reversing all convictions. Individual Justices did elaborate, however. Compare Bell v. Maryland, 378 U.S. 226, 255–60 (1964) (opinion of Justice Douglas), with id. at 326 (Justices Black, Harlan, and White dissenting). 1219 In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and progeny, defamation actions based on common-law rules were found to implicate First Amendment rights and Court imposed varying limiting rules on such rules of law. See id. at 265 (finding state action). Similarly, in NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), a civil lawsuit between private parties, the application of state common- law rules to assess damages for actions in a boycott and picketing was found to constitute state action. Id. at 916 n.51. were to the effect that judicial action of state courts was state action, the Court continued to find that judicial enforcement of these covenants was forbidden. ‘‘The undisputed facts disclose that petitioners were willing purchasers of properties upon which they desire to establish homes. The owners of the properties were willing sellers; and contracts of sale were accordingly consummated. . . .’’ ‘‘These are not cases . . . in which the States have merely abstained from action, leaving private individuals free to impose such discriminations as they see fit. Rather, these are cases in which the States have made available to such individuals the full coercive power of government to deny to petitioners, on the grounds of race or color, the enjoyment of property rights in premises which petitioners are willing and financially able to acquire and which the grantors are willing to sell.’’ 1217 Arguments about the scope of Shelley began immediately. Did the rationale mean that no private decision to discriminate could be effectuated in any manner by action of the State, as by enforcement of trespass laws or judicial enforcement of discrimination in wills? Or did it rather forbid the action of the State in interfering with the willingness of two private parties to deal with each other? Disposition of several early cases possibly governed by Shelley left this issue unanswered. 1218 But the Court has experienced no difficulty in finding that state court enforcement of common-law rules in a way that has an impact upon speech and press rights is state action and triggers the application of constitutional rules. 1219 It may be that the substantive rule that is being enforced is the dispositive issue, rather than the mere existence of state action. Thus, VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00222 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1893 1220 396 U.S. 435 (1970). The matter had previously been before the Court in Evans v. Newton, 382 U.S. 296 (1966). 1221 396 U.S. at 445. Note the use of the same rationale in another context in Palmer v. Thompson, 403 U.S. 217, 226 (1971). On a different result in the ‘‘Girard College’’ will case, see Pennsylvania v. Board of Trustees, 353 U.S. 230 (1957), discussed infra. 1222 387 U.S. 369 (1967). The decision was 5-to-4, Justices Harlan, Black, Clark, and Stewart dissenting. Id. at 387. 1223 See, e.g., 387 U.S. at 377 (language suggesting both lines of reasoning). in Evans v. Abney, 1220 a state court, asked to enforce a discriminatory stipulation in a will that property devised to a city for use as a public park should never be used by African Americans, ruled that the city could not operate the park in a segregated fashion; instead of striking the segregation requirement from the will, the court ordered return of the property to the decedent’s heirs, inasmuch as the trust had failed. The Supreme Court held the decision permissible, inasmuch as the state court had merely carried out the testator’s intent with no racial motivation itself, and distinguished Shelley on the basis that African Americans were not discriminated against by the reversion, because everyone was deprived of use of the park. 1221 Similar to Shelley in controversy and the indefiniteness of its rationale, the latter element of which appears to have undergone a modifying rationalization, is Reitman v. Mulkey, 1222 in which, following enactment of an ‘‘open housing’’ law by the California legislature, an initiative and referendum measure was passed that repealed the law and amended the state constitution to prevent any agency of the State or of local government from henceforth forbidding racial discrimination in private housing. Upholding a state court invalidation of this amendment, the Court appeared to ground its decision on two lines of reasoning, either on the state court’s premise that passage of the provision encouraged private racial discrimination impermissibly or on the basis that the provision made discriminatory racial practices immune from the ordinary legislative process, while not so limiting other processes, and thus impermissibly burdened minorities in the achievement of legitimate aims in a way other classes of persons were not burdened. 1223 In a subsequent case, the latter rationale was utilized in a unanimous decision voiding an Akron ordinance, which suspended an ‘‘open housing’’ ordinance and provided that any future ordinance regulating transactions in real property ‘‘on the basis of race, color, religion, national origin or ancestry’’ must be submitted to a vote of the people before it could become effective, while any VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00223 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1894 AMENDMENT 14—RIGHTS GUARANTEED 1224 Hunter v. Erickson, 393 U.S. 385 (1969). In Lee v. Nyquist, 318 F. Supp. 710 (W.D.N.Y. 1970), aff’d, 402 U.S. 935 (1971), New York enacted a statute prohibiting the assignment of students or the establishment of school districts for the purpose of achieving racial balance in attendance, unless with the express approval of a locally elected school board or with the consent of the parents, a measure designed to restrict the state education commissioner’s program to ameliorate de facto segregation. The federal court held the law void, holding in reliance on Mulkey that the statute encouraged racial discrimination and that by treating educational matters involving racial criteria differently than it treated other educational matters it made more difficult a resolution of the de facto segregation problem. 1225 Washington v. Seattle School Dist., 458 U.S. 457 (1982); Crawford v. Los Angeles Bd. of Educ., 458 U.S. 527 (1982). A five-to-four majority in Seattle found the fault to be a racially-based structuring of the political process making it more difficult to undertake actions designed to improve racial conditions than to undertake any other educational action. An 8-to-1 majority in Crawford found that repeal of a measure to bus to undo de facto segregation, without imposing any barrier to other remedial devices, was permissible. 1226 Crawford, 458 U.S. at 539, quoted in Seattle, 458 U.S. at 483. See also Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 414 (1977). 1227 Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961). 1228 365 U.S. at 722. 1229 Smith v. Allwright, 321 U.S. 649 (1944). other ordinance would become effective when passed, except that it could be petitioned to referendum. 1224 That Mulkey and Hunter stand for the proposition that imposing a barrier to racial amelioration legislation is the decisive and condemning factor is evident from two recent decisions with respect to state referendum decisions on busing for integration. 1225 Both cases agree that ‘‘the simple repeal or modification of desegregation or antidiscrimination laws, without more, never has been viewed as embodying a presumptively invalid racial classification.’’ 1226 It is thus not impermissible to overturn a previous governmental decision, or to defeat the effort initially to arrive at such a decision, simply because the state action may conceivably encourage private discrimination. In other instances in which the discrimination is being practiced by private parties, the question essentially is whether there has been sufficient state involvement to bring the Fourteenth Amendment into play; that is, the private discrimination is not constitutionally forbidden ‘‘unless to some significant extent the State in any of its manifestations has been found to have become involved in it.’’ 1227 There is no clear formula. ‘‘Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.’’ 1228 State action was found in a number of circumstances. The ‘‘White Primary’’ was outlawed by the Court not because the party’s discrimination was commanded by statute but because the party operated under the authority of the State and it in fact controlled the outcome of elections. 1229 Although the City of Philadelphia was act- VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00224 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1895 1230 Pennsylvania v. Board of Trustees, 353 U.S. 230 (1957). On remand, the state courts substituted private persons as trustees to carry out the will. In re Girard College Trusteeship, 391 Pa. 434, 138 A. 2d 844, cert. denied, 357 U.S. 570 (1958). This expedient was, however, ultimately held unconstitutional. Brown v. Pennsylvania, 392 F.2d 120 (3d Cir.), cert. denied, 391 U.S. 921 (1968). 1231 Evans v. Newton, 382 U.S. 296 (1966). Justices Black, Harlan, and Stewart dissented. Id. at 312, 315. For the subsequent ruling in this case, see Evans v. Abney, 396 U.S. 435 (1970). 1232 Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961). 1233 See, e.g., the various opinions in Bell v. Maryland, 378 U.S. 226 (1964). 1234 407 U.S. 163 (1972). One provision of the state law was, however, held unconstitutional. That provision required a licensee to observe all its by-laws and therefore mandated the Moose Lodge to follow the discrimination provision of its bylaws. Id. at 177–79. ing as trustee in administering and carrying out the will of someone who had left money for a college, admission to which was stipulated to be for white boys only, the city was held to be engaged in forbidden state action in discriminating against African Americans in admission. 1230 When state courts on petition of interested parties removed the City of Macon as trustees of a segregated park that had been left in trust for such use in a will, and appointed new trustees in order to keep the park segregated, the Court reversed, finding that the City was still inextricably involved in the maintenance and operation of the park. 1231 In a significant case in which the Court explored a lengthy list of contacts between the State and a private corporation, it held that the lessee of property within an off-street parking building owned and operated by a municipality could not exclude African Americans from its restaurant. It was emphasized that the building was publicly built and owned, that the restaurant was an integral part of the complex, that the restaurant and the parking facilities complemented each other, that the parking authority had regulatory power over the lessee and had made stipulations but nothing related to racial discrimination, and that the financial success of the restaurant benefited the governmental agency; ‘‘the degree of state participation and involvement in discriminatory action’’ was sufficient to condemn it. 1232 The question arose, then, what degree of state participation was ‘‘significant’’? Would licensing of a business clothe the actions of that business with sufficient state involvement? Would regulation? Or provision of police and fire protection? Would enforcement of state trespass laws be invalid if it effectuated discrimination? The ‘‘sit-in’’ cases of the early 1960’s presented all these questions and more but did not resolve them. 1233 The basics of an answer came in Moose Lodge No. 107 v. Irvis, 1234 in which the Court held that the fact that a private club was required to have a liquor license to serve alcoholic drinks and did have such a license did not VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00225 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1896 AMENDMENT 14—RIGHTS GUARANTEED 1235 407 U.S. at 173. 1236 407 U.S. at 176-77. 1237 407 U.S. at 174-75. 1238 Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974) (under the due process clause). 1239 Powe v. Miles, 407 F.2d. 73, 81 (2d Cir. 1968). See also NCAA v. Tarkanian, 488 U.S. 179 (1988) (where individual state has minimal influence over national college athletic association’s activities, the application of association rules leading to a state university’s suspending its basketball coach could not be ascribed to the state.). But see Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288 (2001) (where statewide public school scholastic association is ‘‘overwhelmingly’’ composed of public school officials for that state, this ‘‘entwinement’’ is sufficient to ascribe actions of association to state). bar it from discriminating against African Americans. It denied that private discrimination became constitutionally impermissible ‘‘if the private entity receives any sort of benefit or service at all from the State, or if it is subject to state regulation in any degree whatever,’’ since any such rule would eviscerate the state action doctrine. Rather, ‘‘where the impetus for the discrimination is private, the State must have ‘significantly involved itself with invidious discrimination.’’’ 1235 Moreover, while the State had extensive powers to regulate in detail the liquor dealings of its licensees, ‘‘it cannot be said to in any way foster or encourage racial discrimination. Nor can it be said to make the State in any realistic sense a partner or even a joint venturer in the club’s enterprise.’’ 1236 And there was nothing in the licensing relationship here that approached ‘‘the symbiotic relationship between lessor and lessee’’ which the Court had found in Burton. 1237 The Court subsequently made clear that governmental involvement with private persons or private corporations is not the critical factor in determining the existence of ‘‘state action.’’ Rather, ‘‘the inquiry must be whether 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.’’ 1238 Or, to quote Judge Friendly, who first enunciated the test this way, the ‘‘essential point’’ is ‘‘that the state must be involved not simply with some activity of the institution alleged to have inflicted injury upon a plaintiff but with the activity that caused the injury. Putting the point another way, the state action, not the private, must be the subject of the complaint.’’ 1239 Therefore, the Court found no such nexus between the State and a public utility’s action in terminating service to a customer. Neither the fact that the business was subject to state regulation, nor that the State had conferred in effect a monopoly status upon the utility, nor that in reviewing the company’s tariff schedules the regulatory commission had in effect approved the termination provision included therein (but had not required the practice, had ‘‘not put its VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00226 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1897 1240 Jackson v. Metropolitan Edison Co., 419 U.S. 345, 357 (1974). In dissent, Justice Marshall protested that the quoted language marked ‘‘a sharp departure’’ from precedent, ‘‘that state authorization and approval of ‘private’ conduct has been held to support a finding of state action.’’ Id. at 369. Note that in Cantor v. Detroit Edison Co., 428 U.S. 579 (1976), the plurality opinion used much the same analysis to deny antitrust immunity to a utility practice merely approved but not required by the regulating commission, but most of the Justices were on different sides of the same question in the two cases. 1241 Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351–58 (1974). On the due process limitations on the conduct of public utilities, see Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978). 1242 Flagg Bros. v. Brooks, 436 U.S. 149, 156 (1978) (due process). 1243 436 U.S. at 164-66. If, however, a state officer acts with the private party in securing the property in dispute, that is sufficient to create the requisite state action and the private party may be subjected to suit if the seizure does not comport with due process. Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982). 1244 American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999). 1245 Blum v. Yaretsky, 457 U.S. 991 (1982). own weight on the side of the proposed practice by ordering it’’) 1240 operated to make the utility’s action the State’s action. 1241 Significantly tightening the standard further against a finding of ‘‘state action,’’ the Court asserted that plaintiffs must establish not only that a private party ‘‘acted under color of the challenged statute, but also that its actions are properly attributable to the State. . . .’’ 1242 And the actions are to be attributable to the State apparently only if the State compelled the actions and not if the State merely established the process through statute or regulation under which the private party acted. Thus, when a private party, having someone’s goods in his possession and seeking to recover the charges owned on storage of the goods, acts under a permissive state statue to sell the goods and retain his charges out of the proceeds, his actions are not governmental action and need not follow the dictates of the due process clause. 1243 Or, where a state worker’s compensation statute was amended to allow, but not require, an insurer to suspend payment for medical treatment while the necessity of the treatment was being evaluated by an independent evaluator, this action was not fairly attributable to the state, and thus pre-deprivation notice of the suspension was not required. 1244 In the context of regulated nursing home situations, in which the homes were closely regulated and state officials reduced or withdrew Medicaid benefits paid to patients when they were discharged or transferred to institutions providing a lower level of care, the Court found that the actions of the homes in discharging or transferring were not thereby rendered the actions of the government. 1245 In a few cases, the Court has indicated that discriminatory action by private parties may be precluded by the Fourteenth Amendment if the particular party involved is exercising a ‘‘public function.’’ This rationale is one of those which emerges from the various VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00227 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1898 AMENDMENT 14—RIGHTS GUARANTEED 1246 345 U.S. 461 (1953). 1247 326 U.S. 501 (1946). 1248 326 U.S. at 506. 1249 See Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308 (1968), limited in Lloyd Corp. v. Tanner, 407 U.S. 551 (1972), and overruled in Hudgens v. NLRB, 424 U.S. 507 (1976). The Marsh principle is good only when private property has taken on all the attributes of a municipality. Id. at 516–17. 1250 Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352 (1974). 1251 Flagg Bros. v. Brooks, 436 U.S. 149, 157–159 (1978). 1252 Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982). 1253 American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999). 1254 Blum v. Yaretsky, 457 U.S. 991, 1011–1012 (1982). 1255 Flagg Bros. v. Brooks, 436 U.S. 149, 157 (1978) (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352 (1974)). 1256 Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982). 1257 Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991). opinions in Terry v. Adams. 1246 In Marsh v. Alabama, 1247 a Jehovah’s Witness had been convicted of trespass after passing out literature on the streets of a company-owned town and the Court reversed. It is not at all clear from the opinion of the Court what it was that made the privately-owned town one to which the Constitution applied. In essence, it appears to have been that the town ‘‘had all the characteristics of any other American town,’’ that it was ‘‘like’’ a State. ‘‘The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.’’ 1248 Subsequent efforts to expand upon Marsh were at first successful and then turned back, and the ‘‘public function’’ theory in the context of privately-owned shopping centers was sharply curtailed. 1249 Attempts to apply such a theory to other kinds of private conduct, such as to private utilities, 1250 to private utilization of permissive state laws to secure property claimed to belong to creditors, 1251 to the operation of schools for ‘‘problem’’ children referred by public institutions, 1252 to private insurance companies providing worker’s compensation coverage, 1253 and to the operations of nursing homes the patients of which are practically all funded by public resources, 1254 proved unavailing. The ‘‘public function’’ doctrine is to be limited to a delegation of ‘‘a power ‘traditionally exclusively reserved to the State.’’’ 1255 Therefore, the question is not ‘‘whether a private group is serving a ‘public function.’. . . That a private entity performs a function which serves the public does not make its acts state action.’’ 1256 Public function did play an important part, however, in the Court’s finding state action in exercise of peremptory challenges in jury selection by non-governmental parties. In finding state action in the racially discriminatory use of peremptory challenges by a private party during voir dire in a civil case, 1257 the Court applied tests developed in an earlier case in- VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00228 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1899 1258 Lugar v. Edmondson Oil Corp., 457 U.S. 922 (1982). 1259 Edmonson v. Leesville Concrete Co., 500 U.S. 614, 620–22 (1991) (citations omitted). 1260 500 U.S. at 624, 625. 1261 500 U.S. at 628. 1262 500 U.S. at 639, 643. 1263 Georgia v. McCollum, 505 U.S. 42 (1992). It was, of course, beyond dispute that a prosecutor’s exercise of peremptory challenges constitutes state action. See Swain v. Alabama, 380 U.S. 202 (1965); Batson v. Kentucky, 476 U.S. 79 (1986). volving garnishment and attachment. 1258 The Court first asks ‘‘whether the claimed constitutional deprivation resulted from the exercise of a right or privilege having its source in state authority,’’ and then ‘‘whether the private party charged with the deprivation could be described in all fairness as a state actor.’’ In answering the seco

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