points of agreement

[A.E. Brownstein]

I wonder whether the government could constitutionally require private
institutions that receive public funds for the provision of public services
to agree to abide by the same constitutional constraints that govern state
actors.  The government might say, "We know that government funding does
not always establish that the institutional recipient is a state actor as a
matter of constitutional law, but we think that as a matter of policy (and
to avoid having to litigate cases where the state action line is unclear)
constitutional standards should follow state funding and apply to
institutions that are funded to provide benefits to the public.

Could this approach apply at least to specific programs, if not to
institutions in their entirety.

I have always wondered whether the state action line not only determines
that a funded entity must be subject to constitutional constraints even
though the government would prefer that it was not, but also that the
funded entity is "private" for constitutional purposes and can not be made
subject to constitutional constraints that arguably interfere with
individual rights.

Do the political branches of government have a role to play in deciding how
far constitutional contraints extend through their use of the spending
power? Or is it always an unconstitutional condition for government to
insist that institutions receiving state funds to provide public services
must comply with constitutional requirements.

                                                                                        Alan Brownstein
                                                                                        UC Davis






At 11:35 AM 12/15/98 -0500, you wrote:
>At 08:37 AM 12/15/98 -700, Michael McConnell wrote:
>>
>>But this isn't right. BJU was stripped of its tax exempt status for
>>discriminating, not for the views it was teaching in the classroom.
>>Freedom of speech still stands on a different footing from freedom to
>>act.  Rick's question is still a good one.
>>
>
>        Well, maybe, but the Bob Jones majority held that, to qualify for
a tax
>exemption, an organization "must demonstrably serve and be in harmony with
>the public interest." Justice Powell's concurrence tried to focus on
>discrimination alone, without deciding whether the university was advancing
>the public interest; nobody else signed on to that. Even Justice
>Rehnquist's dissent conceded that the "Fagin School for Pickpockets" and "a
>school training students for guerilla warfare and terrorism in other
>countries" could be denied tax exemptions. The last example seems
>particularly telling: what is the difference between Justice Rehnquist's
>guerilla warfare school and The Citadel or VMI save that the latter are
>supposedly training their students to fight for truth, justice, and the
>American way?
>
>        Furthermore, Bob Jones was a hard case because the statute allowed an
>exemption for "educational" organizations, and the court, which conceded
>that Bob Jones was a school, had to engage in some heroic statutory
>"interpretation" to get the result it wanted. A court willing to do that to
>keep the bad guys from getting a tax exemption will surely accept
>restrictions on the content of education if those restrictions are a
>condition attached by statute to getting a "government benefit" such as
>qualifying for voucher money or satisfying a state's compulsory schooling
law.
>
>        Sure, freedom of speech means the government can't close down a
school
>that teaches "bad" things. But it doesn't mean the government can't say
>"this is a propaganda factory, not a school, so it can't have voucher
>money, a tax exemption, etc." Compare sports: a school can, in theory,
>teach that physical activity is good for men and unnecessary for women (but
>what of "hostile environment" if they do?); nevertheless, colleges (and now
>some high schools) all over the country are ending their men's wrestling
>programs and the like to achieve balance between men's and women's sports.
>Like Rick, I favor vouchers; unlike Rick, I don't think the voucher
>programs that will actually be enacted will get the government out of the
>business of deciding what children should be taught. They may well make the
>situation worse, as private schools today have a fair amount of freedom in
>practice, a freedom unlikely to last long once they are seen as "getting
>government money."
>
>
>Alan Gunn
>Notre Dame Law School
>
>