American Constitutionalism in Historical Perspective (packet)

Lease or public duty cases: state leases restaurant that discriminates so state then has public duty to strike down.

Permission: open housing law repealed by ppl of CA, which gave permission to racial discrim which was inconsistent w/ state neutrality and constituted state action. More likely to find state action when racial discrim than gender or sexual orientation discrim

Beyond State Action: Congressional Enforcement Powers (pp. 962-984)

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   18 U.S.C. § 241 Conspiracy Against Rights: fed courts protecting basic civil rts by imposing criminal sanctions. Not restricted to state action, could be applied to private citizens. p. 887
   
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      U.S. v. Guest, 1966: upholds the prosecution of private citizens for conspiracy vs. civil rts. Believed that there was some state involvement in the murders of civil rts advocates, though the crime was committed by private parties, so never get to the application of the statute to private parties. Majority d/n believe Congress intended for the Civil Rights Act to reach private activity, but believe they could have.
      
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         Clark Concurrence: d/n believe case needs to be cabined into state action since involves interstate actions (interstate rt to travel). In dictum notes that Congress has power under 14^th A §. 5 to extend the anti-discrimin imperative to pure privately motivated conspiracy. Recognizing that Congress may be able to extend power beyond what judiciary may be willing to do.
         
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         Brennan dissent: expansively reads congress’ enforcement powers, can reach more deeply than the ct because it can engage in fact finding. Under the Necessary & Proper clause, Congress can det that the only way to protect civil rts is to extend anti-discrimination enforcement into private sphere. Congress could also decide to extend this through the criminal law to properly enforce against any private party intimidating state/public official or private parties trying to enforce anti-discrim law. Rds out state action req.
         
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      Price: p. 932 civil rts advocates murdered in the So. Conspiracy can reach private Ds who engage w/ state officials in prohibited action under color of law, just need to be a willful participant. Decided under 14^th A. Both §241 and §242 applied b/c of coordination w/ “state” official.
      
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