Fwd: Re: Reitman v Mulkey and 'State Action'

[Howard Schweber]

>Mark Tushnet writes:


>Is there any so-called state action case that isn't about the substantive 
>scope of some
>constitutional provision or other?  I've written more articles than I like 
>to recall attempting to show -- obviously unsuccessfully -- that the 
>answer is, No.


I should go and read some of these articles first, I presume, but let me 
nonetheless suggest that there is a third category between "state action" 
and substance, and that it appears in the idea of state function in 
Brentwood Academy.  Many states are experimenting with privatizing 
functions previously carried out by state actors (including, arguably, the 
St. Patrick's Day parade at issue in Hurley); the transfer of control to 
private actors should not suddenly make a state function immune from XIVth 
Amendment scrutiny -- think of the case of prisons.

Viewed in this way, Shelley v. Kramer becomes a statement to the effect 
that defining the laws of property ownership is a state function, and for 
that reason the state is implicated in the terms and operation of those 
laws, a formulation that seems to me more persuasive than the hypothetical 
argument that *if* a restrictive covenant were challenged -- presumably 
under existing state law -- then the adjudication by a judge would create 
state action.

This does not clear up the confusion, of course.  The failure of a state to 
create a scheme of property law to prevent discrimination is still at 
issue, but both the sharp action/inaction distinction and the equally 
artificially sharp state actor/private actor dichotomies becomes much more 
manageable when we conceive of them as occurring within an overlapping 
field identified as the state's responsibility in the first place.

Note that this argument does not necessarily create an affirmative right of 
enforcement; that is, lawmaking is uniquely the state's business so the 
state must answer for its laws, but private actions may or may not trigger 
state intervention based on executive discretion.  A legislature may be 
able to require enforcement as an element of its statute (although that 
power is in some doubt after Castle Rock), but absent such legislation the 
Fourteenth Amendment does not automatically create a federal affirmative 
right to law enforcement, only a right to live under a scheme of laws that 
satisfy certain criteria.

Thoughts?

Howard Schweber
Dept. of Poli. Sci.
UW-Madison 
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