InnerChange Litigation

[Brownstein, Alan]

I largely agree with Chip's post, but wonder just how far we would
extend the delegation to private parties argument. In a case like Santa
Fe v. Doe, where a school district delegates responsibility to the
student body to choose whether a prayer is given at football games or
graduation, is the student body liable for choosing to have a prayer
delivered by a student speaker? 

Alan Brownstein

-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Ira (Chip) Lupu
Sent: Tuesday, December 04, 2007 10:31 AM
To: Law & Religion issues for Law Academics
Subject: Re: InnerChange Litigation

PFM was not a state actor just because it accepted the state's money to
run this program; many private grantees take government money, and don't
thereby become "state actors".  Ordinarily, private grantees are not
even defendants in these sorts of cases; only state officials are sued.
But here PFM was effectively running a wing of the prison (general
administrative responsibilities, including discipline).  The state
cannot escape constitutional restrictions (8th A, 14th A, here the
Establishment Clause) by delegating power to run prisons to private
parties.

That delegation is what makes PFM a state actor, liable in the same ways
as the state (and probably without any of the immunities).  And that's
why (contrary to its press release) PFM can't keep running this
particular program, even if no money changes hands between the state and
PFM.