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I agree that the application of the principle has to be carefully thought through. I think that the totality of the facts in the particular case control the application. We have long understood that the rules that apply in the common schools are different than the rules that apply elsewhere. In that context, one can safely say that the schools cannot, by inaction, permit this sort of targeted leafleting. There is no slippery slope here unless the Supreme Court cases on religion in schools are all wrong.
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The idea that the govt is responsible for all that it does not prohibit must be treated with great care. It has the potential of making govt responsible for all of life, and of eliminating the sphere of private action. Taken far enough, it is totalitarian. Thus, for example, the argument I heard at one AALS section meeting that Catholic refusal to ordain women as priests violates the 14th Amendment, because the govt's refusal to extend anti-discrim laws to churches results in church discrimination being state action.
Mark S. Scarberry Pepperdine University School of Law
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That the failure to regulate might constitute state action-as in failing to ban private segregation- was one of the most hotly contested issues of the mid-sixties civil right litigation>THE Supreme court ,if my memories of law school are reliable, always dodged the question. It largely became moot as a result of the 1964 civil rights act. Marc Stern
From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]
In a message dated 11/9/2004 5:00:06 PM Eastern Standard Time, [EMAIL PROTECTED] writes:
Seems at least plausible that if you can make that work, you can find state action in the failure of a local government agency to prevent assaults on public sidewalks. After all, they are public property.
Jim Henderson Senior Counsel ACLJ |
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