Ch. 12. APPLICATION OF THE POST CIVIL WAR AMEND'TS TO PRIVATE CONDUCT

2. Application of the Constitution to Private Conduct

A. Private Performance of "Government" Functions

• Early examples finding state action
• Smith v. Allright, p. 1123 (1944): exclusion of black voters from party primaries
• Steele v. L&N RR, p. 1123 (1944): union representing railway workers under RLA excluding black workers
• Marsh v. Alabama, p. 1124 (1946): company town's limits on speech in "pub.for."
• Evans v. Newton, p. 1124 (1966): park donated to city under trust, private trustee appointed to maintain segregation
• FLAGG BROS. V. BROOKS, p. 1125 (1978): "mere permission"
• did the state take possession of the property and dispose of it without a hearing?
• did the state do the equivalent, by enacting a statute permitting private creditors to do this?
• suppose there had been no statute, but a simple contract authorizing the warehouseman to sell the property if not paid: would the bailor's claim for damages for violation of due process have been legally sufficient?


B. Governmental Enforcement of "Private" Decisions

• SHELLEY V. KRAMER, p. 1130 (1948)
• did the state impose racial restrictions on the sale of the property in question?
• did the state do the equivalent, by issuing an injunction against the buyers' taking possession of the property in violation of the private agreement?
• how is this case different from Flagg Bros.? should it be regarded as having been overruled by Flagg Bros.?
• Barrows v. Jackson, p. 1135 (1953)
• what relief was sought for violation of the restrictive covenant?
• should the Court have distinguished this case from Shelley?
• Sit-In Cases, p. 1135-36 (1964)
• does a city or state impose segregation on private business property, by applying its trespass ordinance or statute to persons to whom entry is denied solely on the ground of race?
• does a deputized private security guard enforcing private discrimination become a state actor, because he holds himself out as "a deputy sheriff"? Griffin v. MD
• PENNSYLVANIA V. BOARD OF CITY TRUSTS, p. 1136 (1957)
• is a city agency created by state law a state actor, when it functions solely as trustee for private funds to operate a college, pursuant to the donor's trust?
• is the case different, when a private party is substituted for the city as trustee?
• is this case distinguishable from Evans v. Newton, the donated city park case?
• Powers, Edmonson, and McCollum, pp. 1138-9: litigants exercising peremptory challenges -- is a criminal defense lawyer or even a civil litigant a state actor? How does this square with Flagg Bros.?