American Constitutionalism in Historical Perspective (packet)

18 U.S.C. § 242 Deprivation of Rights Under Color of Law: criminal statute with state action req, acting under color of state law. Realize need to protect blacks from law enforcement actions. (Price). P. 887

42 U.S.C. § 1981 Equal Rights Under the Law: no state action req, all persons protected vs. discrim in the making of contracts.

1. 
   Associational Freedom (Jaycee’s Trilogy): p. 1415 private clubs required to admit women, finds gender equality to be more impt than associational liberty. Find that clubs are not purely expressive, but are professional organizations and must yield to the anti-discrimination imperative. See also Directors Rotary Club, NYS Club Assoc. reps tension b/w equality and liberty.
   
2. 
   Boy Scouts v. Dale only case where associational liberty wins over sex orientation.
   
3. 
   See Jones v. Mayer:
   
4. 
   Runyon v. McCrary, 1976: p.887 applies anti-discrimin imperative to private non-sectarian schools. Recognize that ed institutions have free speech and privacy aspects, but these must yield. Still draw the line at religious schools, closer to core beliefs. Used 13^th A argument. Brings in arguments of free speech protection of racist speech and as long as not harming students physically s/n compromise religious school’s moral independence.
   
   1. 
      Could you extend this to gender if 13^th A extends to gender? No: race more invidious and irrational than gender. Do we want to end Smith College? May mean that religions would have to have female priests.
      
   2. 
      Is education outside realm of free speech b/c of Brown?
      

42 U.S.C. § 1982 Property Rts of Citizens: not limited to state action, any American who uses property rts in a racially discriminatory way violates fed law. P.887 Below are also Nexus cases.

1. 
   Shelley v. Kramer: struck down a restrictive covenant enforced by a ct, involves state action, & violates 14^th A and this statute, but not extended to wills or other contracts. Derivative of 14^th A, racial animus in zoning is unconst., also true of private arrangements that achieve the same end (serve public function in this way). C/n use public power to support racial animus.
   
2. 
   But wills are a private wish based on selectivity of private association, have to allow ppl to have this autonomy. But wills are enforced by the state so does this make them state action? Ct thinks requires something else and takes narrow view of this.
   
3. 
   Evans v. Abney: p. 904 park that had been racially restricted and forced to desegregate is allowed to revert back to heirs under cy pres doctrine b/c his essential intent is frustrated. But park has been in public domain for such a long time
   
4. 
   Bd Directors of Trusts: (Girard College): wants all white male school but this is overturned b/c bd that operates the school is an agency of the state. When state ct substituted private trustees to carry out Girard’s will after this decision, it was struck down 10 yrs later as unconst. state action to substitute private trustees.
   
5. 
   Buchanan 1917 Race based zoning is unconst. even in Plessy period.
   
6. 
   Jones v. Mayer: (1960) court upheld congressional legislation reaching private discrim under 13^th A, not limited to state action. Based on the Harlan dissent in Civil Rights Cases emphasizing that racism places the “badge of slavery” on a group of persons and any attempts to extend this cultural history will be disallowed. Gives new content and broadens scope of provisions of fed fair housing statute. No state action req when racial discrim so enforcement can go into private sphere!
   
7. 
   p. 945: not bona fide social club b/c no plan/purpose of exclusiveness, open to every white person w/in geographic area, no selective element other than race: Sullivan v. Little Hunting Park: Corps’ refusal of membership assignment was interfering w/ rt to lease. Rt of associational liberty trumped by racial equality.
   
   1. 
      Also related to cases where women want to be a part of the “All Boys Club” for club’s quasi-econ and social functions that lead to social mobility. So leads cts to say gender equality trumps associational liberty.