InnerChange Litigation

[Steve Green]

A school prayer delegation is, of course, much more discrete than what 
Iowa prisons did w/ PFM.  The Brentwood Academy line suggests the need 
for a continuing delegation along w/ entwinement, which existed in 
PFM.   The past history is also important.  Governments usually run all 
aspects of prisons.  A school may or may not plan/control all aspects of 
a football game or graduation, such that it may not be delegating those 
functions that are "traditionally and exclusively" that of the 
sovereign. Thus, a school administration's delegation to students about 
whether to have a prayer is more easily resolved by looking at the 
government's conduct, rather than the "private actors."

-- 
Steven K. Green, J.D., Ph.D.
Professor of Law and Director
Center for Religion, Law and Democracy
Willamette University
245 Winter Street, SE
Salem, Oregon 97301
(503) 370-6732



Brownstein, Alan wrote:

>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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