Constitutional Law Class Notes 4/19/04


One final thought about substantive due process: hopefully this will provide some comfort.  Foley has been studying this for 20 years.  He thought it was fascinating, especially the abortion issue.  He took several classes that related to substantive due process.  He still doesn’t feel like he really understands substantive due process!  He feels like he understands it better than in law school, and he’s published articles on the subject.  Maybe other people can figure it out, but he’s at a point where he feels that it’s an inherently insoluble problem.  Some students have observed that the Court’s methodology in Glucksberg seems inconsistent with its methodology in Lawrence, for example.  Can we tell which way the Court will go in the future?  Foley doesn’t think we can, though Lawrence is the more recent decision.  They seem to choose their approach based on whether they want to grant or deny a right.  Basically, don’t worry if you’re anxious about substantive due process.  Nobody really understands it.  The constitutional meaning of liberty will take on many different viewpoints.  Lawyers will have debates about how to understand the constitutional protection of liberty without any further specificity in the Fourteenth Amendment.


The state action doctrine


These issues apply to the substantive due process concept and the procedural due process concept.  We may get a state action question in practice.  The state action doctrine is that the provisions of the Fourteenth Amendment only apply to state actors (state governments and their subsidiaries, including local governments).  So these provisions only apply to people like the governor, attorney general, or some other state actor.  You can’t sue the Ford Motor Company, for example, for violating substantive due process.  There are provisions of statutory law that apply to the private sector, but in order to prevail on a Fourteenth Amendment claim, you must be suing the government.  That’s also true of any provision of the Bill of Rights as incorporated through the Fourteenth Amendment.


Look at the example of campus speech codes: are “civility codes” an infringement on the freedom of speech?  There was a big debate about this at Stanford.  They talked about free speech as an issue.  But the First Amendment freedom of speech as law does not apply to Stanford University, because it is a private university, not a public university.  On the other hand, OSU is part of the Ohio state government, and we’re bound by the First and Fourteenth Amendments.  Whether a campus civility code is applicable to a state university is a real issue.  On the other hand, it’s merely a moral principle when applied to a private university.  The state action doctrine is very crucial in defining the scope of constitutional rights protected by the Fourteenth Amendment.


If you ever get a state action doctrine question in practice, look it up in Chemerinsky.  The reason there may be questions is that there are exceptions or “wrinkles” to this idea.  Sometimes the conduct of a private entity is still attributable to the government, and thus that private entity is considered a state actor even though it’s technically not the government.  It is useful to think of this as an exception to the general rule that you can’t sue Microsoft, for example, under the Fourteenth Amendment.  The two exceptions are clustered under two categories: (1) the public function exception and (2) the entanglement/entwinement exception.


The public function exception says that private entities, typically corporations, act in a way that you would expect the government to do.  Take as an example a “company town”.  If a company owns a whole town, that company is really acting like the government for that municipality.  Since cities are considered arms of state governments, we’ll say that this privately-owned city can be sued just like the state government for violating the Fourteenth Amendment.  That’s one kind of exception.  There are pressure points put on this doctrine: consider, for example, Easton Town Center.  It’s a mall, but it’s not enclosed.  It’s outdoors.  Would the corporation that owns Easton be considers an arm of the government because it controls the “streets” of Easton and runs security there?  Foley believes that because it isn’t really a town it wouldn’t be considered to be like a city government.  The rule would apply: you can’t sue Easton for violating the Fourteenth Amendment.  If, on the other hand, Easton developed such that it had its own schools, homes, and so on, then it’s possible that it could be found to be performing a public function.  The entanglement exception says that if the government contracts out one of its functions to a private entity, that entity will be considered a state actor only in terms of the action it performs for the government.


The precedents that exist cannot be reconciled into a coherent whole.  The “liberal” position attributes state action to more private entities.  The heyday was during the Warren Court, which was very aggressive in asserting civil rights and trying to eliminate discrimination.  That Court was more inclined to find the existence of state action if facts warranted it and say that a particular private entity is doing what the government “used to do”.  Consider the example of “white flight” to private schools: are these schools really private, or are they taking over the public school system?  There were a series of liberal precedents.  On the other hand, the Rehnquist Court has been much more conservative.  They have rolled back many of the previous Court’s decisions.  So if you find a great case from the Warren Court that seems to support your client’s position, you must take it with a grain of salt, thinking about how the modern Court would regard its earlier decision.


The most recent case involving the state action doctrine was Brentwood Academy, a 5-4 decision that was a “liberal victory”, with O’Connor joining the “liberal wing” of the Court.  The Tennessee Secondary School Athletic Association accredited high school sports programs.  There was litigation between the Academy and the crediting agency.  The argument was that the Athletic Association was taking on a public function and acting in a public capacity.  The Court distinguishes NCAA v. Tarkanian, which was an earlier Rehnquist Court decision.  The bottom line seems to be that most of the schools regulated at the high school level are public schools.  So anybody who is charged with accrediting and regulating high schools is performing a public function, according to the Court.  At the college level, however, there’s much more of a split between public and private schools.  Therefore, the NCAA is taken not to be performing a state function.


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