InnerChange Litigation

[marty.lederman at comcast.net]

This thread reveals an oddity about modern state-action doctrine -- most of the cases in which the Court has developed that doctrine have involved questions of whether the putatively private actors could be *enjoined,* not whether they could be sued for damages.  And it's in that context that the Court has developed its state action factors and rules.  I'm sure there are some exceptions where money damages were at issue -- and the attorneys' fees question is certainly interesting -- but none comes to mind just now.


 -------------- Original message ----------------------
From: "Brownstein, Alan" <aebrownstein at ucdavis.edu>
> 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.
> 
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