American Constitutionalism in Historical Perspective (packet)

Public Function: Extends the anti-discrimin imperative to private institutions w/ public functions, private property exercising non-delegable, exclusive powers of the state – company towns (Marsh v. Alabama), private parks, political primaries.

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   Marsh: (1946) p. 894 corp town must allow person to distribute religious lit on premises, is a public forum. That corp owned title to town c/n justify impairing public’s interest in free comm. channels.
   
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   Ct extends to shopping centers & then w/draws b/c shopping center is no longer public forum under fed law.
   
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   Evans v. Newton p. racist Senator sets up park under his will for “whites only”. Private parties run park to maintain his donative intent but was originally run by the city. So principle of anti-discrim can extend to park w/ this image and history as originally being a public park. If extend to private park then can extend to private schools (Harlan dissent). Narrow holding to avoid Harlan’s worry.
   
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   White Primary Cases: Democratic party tries to remain all white. Ct refuses attempts to privatize the issue. Facial exclusion from primary is per se unconst. (Nixon). White primary by state convention violated 15^th A (Smith). Under 15^th A, blacks c/n be excluded by pre-primary elections of voluntary, private club of white Dems. Essentially has same function as primary b/c of the clubs power. (Terry). Ct most likely to buy state action def in private utilities & sale of gds entrusted by warehousemans to satisfy liens when procedural DP involved. (Jackson, Flagg Bros).
   

State Nexus: private activity that is in some way commanded or allowed by the state. The activity may look private, but it is state activity. Includes state enforcement of restrictive covenants (Shelley v. Kramer), finds these to be in the nature of zoning, also lease and public duty and permission cases.

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