Shelly/State Action/Norwood

[Lederman, Marty]

David Dow's distinction does not appear to be between legislature and judiciary -- indeed, why would that distinction make any sense for state-action purposes? -- as much as it is between actions that are facially discriminatory (e.g., his example of the statute punishing gays more severely) and those that are (arguably) facially neutral (e.g., judicial enforcement of the tort of battery).

Shelley is not, of course, the only landmark case in which "facially neutral" judicial action is treated as state action for constitutional purposes.  See, e.g., NYT v. Sullivan, Hustler v. Falwell.  Indeed, I would say that, by definition, *all* judicial and legislative action is state action.  As Profs. Black, Tribe, et al., have long pointed out, the "state action" question is a red herring:  There is state action in virtually all of the cases in which the issue is discussed, at least so long as the state legal system (including the judiciary) is prepared to enforce/facilitate/penalize private conduct via the constraints of state law and the mechanisms of state legal compulsion.  (Often, of course, the wrong party is in the case, where the plaintiff sues the private actor rather than the state entity itself.)  The only real issue should be in identifying the substantive constitutional constraints that are to be applied to the conduct of the state actor.  Where the state itself discriminates in its enforcement of state law, the constitutional question usually is clear, whether or not that discrimination is the result of statute, executive action, selective enforcement, or judicially created common law.  The more difficult question is:  Under what circumstances does the operation of a facially "neutral" state law impermissibly facilitate/subsidize/promote private discrimination, in violation of constitutional norms?  This issue comes up all the time in, e.g., Establishment Clause cases, as well as in landmarks such as Shelley and NYT v. Sullivan.  It also has some bearing -- albeit infrequently -- on questions under the Equal Protection Clause.

In this regard, I'm curious: What sayest the esteemed CONLAWPROF participants about Norwood v. Harrison, which has long seemed to me to be the most difficult of these cases, at least if one takes seriously the Court's stated rationale (that a state's neutral provision of textbooks to all schools is unconstitutional as applied to a racially segregated private school, even pursuant to a neutral program in which aid is awarded on the basis of objective criteria having nothing to do with such discrimination, where the aid "has a significant tendency to facilitate, reinforce, and support" the discrimination).  There is, of course, no state action question, because the state is the defendant.  But what about the substantive equal protection holding?  Can it be squared with Washington v. Davis?    Compare, e.g., Bob Jones Univ. v. United States, 461 U.S. 574, 622-23 n.4 (1983) (Rehnquist, J., dissenting); with, e.g., United States v. Virginia, 518 U.S. 515, 599-600 (1996) (Scalia, J., dissenting); National Black Police Ass'n v. Velde, 712 F.2d 569, 580-83 (D.C. Cir. 1983).

Marty Lederman (not in my state actor capacity)


-----Original Message-----
From: David R. Dow [mailto:ddow at UH.EDU]
Sent: Sunday, November 05, 2000 12:56 PM
To: CONLAWPROF at listserv.ucla.edu@inetgw
Subject: Re: Shelly and gender?


it strikes me that this entire area would make more sense if we were to
distinguish, for constitutional purposes, between actions of the
legislature, on the one hand, and actions of the judicial branch, on the
other.  (the executive is trickier, b/c sometimes she will be enforcing
laws enacted by the legislature, but sometimes she will be executing
judgments of the judicial branch.)  when the legislature acts, it is
*always* the state; but when the judicial branch acts, at least in the
context of actions brought to enforce private agreements or to redress
private wrongs, it almost never is (and i am tempted to delete the word
"almost").  thus, the legislature could not enact a law that punishes gay
citizens who assault and batter more harshly than non gay citizens who
assault and batter.  but if i am assaulted and battered by a group
comprising both gays and non gays, i can surely choose to seek redress
against members of one group or the other; and i think that, assuming i
were to win a jury verdict, the court could enforce it even if it could be
shown that i sued only the non gay or gay batterers due to animus.  and it
is true of every classification (race, gender, etc.).  this mean,
obviously, that shelley was wrongly decided.  but i doubt that matters very
much.  its impact is constitutionally negligible.  and the civil rights act
of 1964 was a more effective and more coherent approach to race based
discrimination anyway.