State action and race discrimination in accrediting agencies

[Volokh, Eugene]

	I agree with Howard that the only plausible state actor here
should be the HHS; perhaps it can be faulted for certain aspects of its
relationship with CSWE, assuming CSWE is acting in certain racially
discriminatory ways, but CSWE isn't subject to the constitutional
constraints.

	On the other hand, my sense (and I should stress that I'm not a
state action maven) is that state action doctrine has ended up straying
from this position.  Consider, for instance, Adickes v. Kress & Co, 398
U.S. 144 (1970), where the Court found that a privately owned store
could be responsible under 42 USC 1983 (on a sort of conspiracy theory)
because it abided by a state-enforced discriminatory custom requiring
racial segregation.  I realize the relationship between Kress and the
state isn't quite the same as that between CSWE and HHS.  But the
broader point is that Adickes v. Kress (and, I think, some other cases)
suggest that -- under the Court's current doctrine -- even private
organizations can be seen as state actors when they work closely enough
with the government.

	Eugene

> -----Original Message-----
> From: wasserma at fiu.edu [mailto:wasserma at fiu.edu] 
> Sent: Friday, February 22, 2008 1:18 PM
> To: Volokh, Eugene; Conlawprof at lists.ucla.edu
> Subject: Re: State action and race discrimination in 
> accrediting agencies
> 
> Are they arguing that HHS is violating the Constitution by 
> supporting/using CSWE? Or is the argument that CSWE itself is 
> violating Title VI and the 14th Amendment?
> 
> If the latter, I do not think the constitutional argument 
> works because CSWE is not a governmental actor. Receipt of 
> federal funds/benefits is not sufficient, unless government 
> somehow commands the allegedly unconstitutional conduct. Nor 
> is being an accrediting agency, even one on which government 
> relies. Otherwise, the ABA would be a state actor, since 
> (except in California and Wisconsin) one cannot either sit 
> for the Bar or receive a law license (and presumably could 
> not be hired as, say, an ADA) unless one graduates from an 
> ABA-accredited school. The fact that government relies on a 
> private entity (by hiring only graduates of its approved 
> schools, for example) is not enough, unless government 
> somehow controls or is involved withe the private entity's actions.
> 
> Howard
> ---- Original message ----
> >Date: Fri, 22 Feb 2008 11:23:33 -0800
> >From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
> >Subject: State action and race discrimination in accrediting agencies
> >To: <Conlawprof at lists.ucla.edu>
> >
> >	Any thoughts on this letter to the Deputy Secretary of 
> HHS from the 
> >National Association of Scholars?  I'm not sure what the right 
> >constitutional analysis would be here -- and specifically 
> whether the 
> >HHS is violating the Constitution by interacting with the 
> CSWE in these 
> >ways (especially as to item 1) -- but I'd like to know what others 
> >think.  (We could assume for purposes of the discussion that the 
> >factual allegations are accurate and ask whether the HHS's 
> use of the 
> >CSWE in various ways is constitutional; or of course if people have 
> >evidence that the factual allegations are mistaken, that 
> would be worth 
> >noting as
> >well.)  Thanks,
> >
> >	Eugene
> >
> >
> >http://www.nas.org/nas-initiatives/CSWE-initiative/CSWE_round
3/Troy_ltr
> >-
> >11feb08.pdf
> >
> >...  Health and Human Services is connected to CSWE in at 
> least three 
> >ways: (1) The Public Health Services Commissioned Corps 
> requires that 
> >the social workers it employs have degrees from CSWEaccredited 
> >programs; (2) CSWE receives grants from the Substance Abuse 
> and Mental 
> >Health Services Administration, which is part of HHS, and (3) CSWE 
> >receives grants from the National Institute of Mental 
> Health, which is 
> >also under HHS jurisdiction. The two grants, which date back to 1974 
> >and 1978, support CSWE's "Minority Fellowship Programs," which are 
> >described on CSWE's website 
> (http://www.cswe.org/CSWE/scholarships/fellowship/).
> >
> >Minority-only fellowships have been successfully challenged by the 
> >Center for Equal Opportunity on a number of American college and 
> >university campuses. The Department of Education and the Justice 
> >Department have also set the pace for opening minority-only 
> >scholarships and fellowships to all applicants. Such 
> scholarships are 
> >blatantly discriminatory, as they restrict candidates to those of 
> >particular races and ethnic origins. I suspect that CSWE's Minority 
> >Fellowship Programs likewise rests on dubious legal foundations. Be 
> >that as it may, HHS is in the awkward spot of not only funding 
> >race-specific scholarships but also funding those 
> scholarships through 
> >an organization that is, top to bottom, riddled with racial 
> quotas and 
> >other forms of discrimination....
> >
> >The CSWE bylaws require representation by members of 
> under-represented 
> >groups, among them "women; African Americans/other Blacks; Asian 
> >Americans and Pacific Islanders, Chicano/Mexican Americans, Puerto 
> >Ricans, other Latino(a)/Hispanics; Native Americans/American 
> Indians; 
> >persons with disabilities; and gay, lesbian, bisexual, and 
> transgender 
> >persons." To fulfill this inclusion requirement, CSWE has 
> declared that 
> >"the Nominating Committee shall develop and maintain specific 
> >procedures designed to ensure the election of persons from 
> historically 
> >under-represented groups on slated and in elected bodies."
> >
> >In a forthcoming article, "Social Work Agonistes," in our journal, 
> >Academic Questions, Dr. David Stoesz describes the voting procedures:
> >
> >"CSWE's method for assuring participation of 
> under-represented groups 
> >has been to construct ballots disallowing open nominations for 
> >positions, assuring that leadership positions are reserved 
> for people 
> >based on their ascribed characteristics: ballots feature two African 
> >Americans for an open position, two women for another, two Native 
> >Americans for a third, etc.
> >While nominees may be added to the slate constructed by the National 
> >Nominating Committee, these are permitted only when they 
> conform to the 
> >ascribed attributes required for an open position. In this 
> manner CSWE 
> >has instituted a quota system of participation by members of 
> >under-represented groups."
> >
> >In our view, this discrimination violates Title VI of the 
> Civil Rights 
> >Act, since it is part and parcel of CSWE's federally funded programs 
> >and activities.
> >Furthermore, because CSWE
> >works in an official and quasi-official way in exercising its 
> >accreditation authority, it is also violating the 14th Amendment. In 
> >all events, we would think that HHS, as a government agency, would 
> >itself want to avoid working hand-in-glove with an entity 
> that engages 
> >in blatant racial discrimination....
> >_______________________________________________
> >To post, send message to Conlawprof at lists.ucla.edu To subscribe, 
> >unsubscribe, change options, or get password, see 
> >http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> >
> >Please note that messages sent to this large list cannot be 
> viewed as private.  Anyone can subscribe to the list and read 
> messages that are posted; people can read the Web archives; 
> and list members can (rightly or wrongly) forward the 
> messages to others.
> Howard M. Wasserman
> Visiting Associate Professor of Law (2007-08) St. Louis 
> University School of Law 3700 Lindell Blvd.
> St. Louis, MO  63108
> (314) 977-2773
> hwasser1 at fiu.edu
> 
> Associate Professor of Law
> FIU College of Law
> University Park, RDB 2065
> Miami, Florida  33199
> (305) 348-7482
> howard.wasserman at fiu.edu
>