Government Subsidy of Boy Scouts?

[Eugene Volokh]

Andrew Koppelman wrote:

> << The lease would certainly make the Scouts' discrimination state action
> under Burton v. Wilmington Parking Authority.  That case involved a state
> leasing space (at market rates, evidently) to a restaurant that refused to
> serve blacks.  The Supreme Court said that the discrimination was state
> action, hence prohibited by the fourteenth amendment.  >>

    I had thought that Burton was always considered to rest on more
than just the fact of the lease.  Surely not every lessee of state
property must refrain from discriminating based on, say, religion, or
from putting up creches, or from kicking out patrons who wear T-
shirts with offensive writing, or what have you.  Cf., e.g., Gannett
Satellite Information Network, Inc. v. Berger, 894 F.2d 61 (3d Cir.
1990) (decision by lessee to exclude newspaper rack from its space
not state action even though space was leased from government-owned
airport); NBC v. Communications Workers of America, 860 F.2d 1022
(11th Cir. 1988) (decision by union to exclude broadcaster from its
convention not state action even though convention was held in a
place leased from a city government).

---------------------------------------------------------------------
Eugene Volokh, UCLA Law School, (310) 206-3926  fax -7010
               405 Hilgard Ave., L.A., CA 90095