GPO-CONAN-2017-10-15.pdf

Rather where the impetus for the discrimination is

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rule would eviscerate the state action doctrine. Rather, “where the impetus for the discrimination is private, the State must have ‘sig- nificantly involved itself with invidious discrimination.’ ” 1383 More- over, although the state had extensive powers to regulate in detail the liquor dealings of its licensees, “it cannot be said to in any way foster or encourage racial discrimination. Nor can it be said to make the State in any realistic sense a partner or even a joint venturer in the club’s enterprise.” 1384 And there was nothing in the licens- ing relationship here that approached “the symbiotic relationship between lessor and lessee” that the Court had found in Burton . 1385 The Court subsequently made clear that governmental involve- ment with private persons or private corporations is not the criti- cal factor in determining the existence of “state action.” Rather, “the inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that 1380 Burton v. Wilmington Parking Authority, 365 U.S. 715, 724 (1961). 1381 See , e.g. , the various opinions in Bell v. Maryland, 378 U.S. 226 (1964). 1382 407 U.S. 163 (1972). One provision of the state law was, however, held un- constitutional. That provision required a licensee to observe all its by-laws and there- fore mandated the Moose Lodge to follow the discrimination provision of its by- laws. Id. at 177–79. 1383 407 U.S. at 173. 1384 407 U.S. at 176–77. 1385 407 U.S. at 174–75. 2087 AMENDMENT 14—RIGHTS GUARANTEED
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the action of the latter may be fairly treated as that of the State itself.” 1386 Or, to quote Judge Friendly, who first enunciated the test this way, the “essential point” is “that the state must be involved not simply with some activity of the institution alleged to have in- flicted injury upon a plaintiff but with the activity that caused the injury. Putting the point another way, the state action, not the pri- vate action, must be the subject of the complaint.” 1387 Therefore, the Court found no such nexus between the state and a public utili- ty’s action in terminating service to a customer. Neither the fact that the business was subject to state regulation, nor that the state had conferred in effect a monopoly status upon the utility, nor that in reviewing the company’s tariff schedules the regulatory commis- sion had in effect approved the termination provision (but had not required the practice, had “not put its own weight on the side of the proposed practice by ordering it”) 1388 operated to make the utili- ty’s action the state’s action. 1389 Significantly tightening the stan- dard further against a finding of “state action,” the Court asserted that plaintiffs must establish not only that a private party “acted under color of the challenged statute, but also that its actions are properly attributable to the State . . . . 1390 And the actions are to be attributable to the state apparently only if the state compelled the actions and not if the state merely established the process through statute or regulation under which the private party acted.
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