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

2. Application of the Constitution to Private Conduct]

C. Gov't Financing, Regulation and Authorization of Private Conduct

1. Private Activity on Government Property

• BURTON V. WILMINGTON PARKING AUTHORITY, p. 1139 (1961).
• was the Authority found to have intended its tenant to discriminate?
• was the restaurant found to have been exercising a public function?
• if not, on what grounds was the restaurant's discrimination attributed to the state?
• Hypo: Suppose the city acquires a small building for nonpayment of taxes, and leases the entire building to a private club, which denies membership to women and/or minorities. Is the membership policy subject to the 14th Amendment? Is Burton distinguishable?
• compare Phila. Board of City Trusts, Burton, and Evans I & II (the Girard College cases) --is the issue in all of these cases the appearance of city complicity in the racial policy?
 
2. Government Financial Assistance to Private Activities
• Norwood v. Harrison, p. 1142 (1973):
• textbook loan program to pupils of private, racially segregated schools, invalid
• compare Board of Education v. Allen (1968), textbook loan program to parochial schools did not violate the Establishment Clause -- what's the difference?
• Blum, p. 1143, and Rendell-Baker, p. 1144: state subsidy to a private enterprise, by itself, doesn't make the enterprise's decisions subject to due process
 
3. Government Regulation of Private Activity
• MOOSE LODGE No. 107 V. IRVIS, p. 1144 (1972)
• did the state liquor license as such require racial discrimination?
• did the license as such constitute endorsement of the licensee's guest policy?
• did the specific requirement of the license, that the licensee adhere to all the provisions of its own constitution and by-laws, in effect require discrimination?
• JACKSON V. METROPOLITAN EDISON CO., p. 1148 (1974)
• comprehensive regulation of, and granting of local monopoly to, privately-owned "public utility"
• does that make the utility's decisions, such as termination of a customer's service for nonpayment of bills, state action for purposes of due process?
 
4. Government Approval of Private Activity
• REITMAN V. MULKEY, p. 1152 (1967)
• state's constitutional amendment, forbidding laws that restrict private choice of persons to whom to sell or rent, found to be intended to encourage private racial discrimination? Who made that determination? Did the Court properly rely on it?
• hypo: state legislature now adopts a statute expressly declaring that any person has the right to discriminate on the basis of race, or any other criterion, in choosing persons whom to invite as guests in his/her private home. Would Mulkey require invalidating that statute?