GPO-CONAN-2017-10-15.pdf

Had done nothing to protect the child the court

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had done nothing to protect the child, the Court emphasized that the actual injury was inflicted by the parent and “did not occur while [the child] was in the State’s custody.” 1422 Although the state may have incurred liability in tort through the negligence of its social workers, “[not] every tort committed by a state actor [is] a constitu- tional violation.” 1423 “[I]t is well to remember . . . that the harm was inflicted not by the State of Wisconsin, but by [the child’s] fa- ther.” 1424 Judicial inquiry into the existence of “state action” may lead to different results depending on what remedy is sought to be en- forced. While cases may be brought against a private actor to com- pel him to halt his discriminatory action (for example, to enjoin him to admit blacks to a lunch counter), one could just as readily bring suit against the government to compel it to cease aiding the pri- vate actor in his discriminatory conduct. Enforcing the latter rem- edy might well avoid constitutional issues that an order directed to 1418 457 U.S. at 1011. 1419 489 U.S. 189, 197 (1989). 1420 Estelle v. Gamble, 429 U.S. 97 (1976). 1421 Youngberg v. Romeo, 457 U.S. 307 (1982). 1422 489 U.S. at 201. 1423 489 U.S. at 202. 1424 489 U.S. at 203. 2093 AMENDMENT 14—RIGHTS GUARANTEED
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the private party would raise. 1425 In either case, however, it must be determined whether the governmental involvement is sufficient to give rise to a constitutional remedy. In a suit against the private party it must be determined whether he is so involved with the gov- ernment as to be subject to constitutional restraints, while in a suit against the government agency it must be determined whether the government’s action “impermissibly fostered” the private conduct. Thus, in Norwood v. Harrison , 1426 the Court struck down the provision of free textbooks by a state to racially segregated private schools (which were set up to avoid desegregated public schools), even though the textbook program predated the establishment of these schools. “[A]ny tangible state assistance, outside the general- ized services government might provide to private segregated schools in common with other schools, and with all citizens, is constitution- ally prohibited if it has ‘a significant tendency to facilitate, rein- force, and support private discrimination.’ . . . The constitutional obligation of the State requires it to steer clear, not only of operat- ing the old dual system of racially segregated schools, but also of giving significant aid to institutions that practice racial or other in- vidious discriminations.” 1427 And in a subsequent case, the Court approved a lower court order that barred the city from permitting exclusive temporary use of public recreational facilities by segre- gated private schools because that interfered with an outstanding order mandating public school desegregation. But it remanded for further factfinding with respect to permitting nonexclusive use of public recreational facilities and general government services by seg- regated private schools so that the district court could determine
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