Case Information

*1 THEA~TORNEYGENERAL OF TEXAS Auwmiv. TEXASI 78711 September 20, 1974 Carlos F. Truan Opinion No. H- 406 Committee on Human Resources Re:, Whether licensing of child House of Representatives care institutions by the state P. 0. Box 2910 requires compliance with non- Austin, Texas laws by institu-

tion.

Dear Representative Truan:

You have indicated that your committee has been presented with evidence of racial discrimination by private care by the State. To determine whether there is any necessity to recommend state legislation directed at this practice you ask:

Is the issuance of a license by a State agency or by a political subdivision of the State to any kind of private child-care institution such a State action, within existing federal law or the U.S. Constitution, as would require non-discriminatory admissions and services by the licensee?

Your inquiry is directed solely to the question of whether a state program constitutes “state action” and whether on that basis alone a licensee would be prohibited by federal law from engaging in discriminatory Accordingly, our opinion is limited to that question and does not consider whether state law or federal law based on foundations than the state acticn concept, such as the commerce clause or the receipt of federal benefits, would require to avoid discriminatory action. 42 U.S.C.. See e.g., Sec. 2000e, et seq. (equal employment opportunity): The Child Nutrition Act of 1966, 42 U.S. C., Sec. 1771, et seq.; 7 C. F.R., Sec. 215.14.

The Fourteenth Amendment to the United States Constitution provides that: *2 Carlo6 F. Truan, page 2

No state shall 0 . . deny to any person within its jurisdiction the equal protection of the laws.

If a state program of licensing is sufficient to trigger the operation of the Fourteenth Amendment by constituting the requisite state action, could not adopt discriminatory policies. The relationship of the Fourteenth Amendment and a state program was recently discussed by the United States Supreme Court in Moose Lodge No. 107 V. Irvis, 407 U.S. 163 (1972). Moose Lodge No. 107 was a private club which had been granted a liquor license by the state of Pennsylvania. Liquor licenses were not freely available. A quota established the limited number of licenses which could be issued, and recipients had to comply with detailed regulations. Nevertheless, the Supreme Court said:

The Court has never held, of course, that discrimination by an otherwise private entity would be violative of the Equal Protection Clause if the private entity receives any sort of benefit or service at all from the State, or if it is subject to state regulation in any degree whatever . . .

Our holdings indicate that where the impetus for the discrimination is private, the State must have “signi- ficantly involved itself with invidious discriminations,” Reitman v. Mulkey, 387 US 369, 380. (1967). in order for the discriminatory action to fall within the amhit of the constitutional prohibition, a .

However detailed [liquor license] regulation may be in soroe particulars, 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 enter- prise a . .

We therefore hold that, D . e the operation of the regulatory scheme enforced by the Pennsylvania

Liquor Control Board does not sufficiently guest policies of

Moose Lodge so as to make the latter “state action” within the ambit of the Equal Protection Clause of the Fourteenth Amendment.

407 U.S. at 173. 176, 177.

The Honorable Carlo6 F. Truan, page 3 (H-406)

We believe the reasoning of Moose Lodge compels a similar answer to your question. We beli.eve it would be held that the mere fact that facility receives a license under Article 4442a, V. T. C. S., or other similar statute does not, under the existing case law, sufficiently implicate practices so as to make them “state action” within the ambit of the Equal Protection Clause of the Four- teenth Amendment. This is not to say, of course, that an aggrieved or parent might not have a civil remedy against a child care that practiced discrimination. See, e. g., 42 U.S. C. Set 1981; Gonzalez v. Fairfax-Brewster School, Inc., 363 F.Supp. 1200 (E. D. Va. 1973); cf. Tillman v. Wheaton-Haven Recreation Assoc., 410 U.S. 431 (1973); Sullivan v. Little Hunting Park, 396 U.S. 229 (1969). Noris it to say that statutes with foundations than the state action concept may not prohibit

Because of our answer to your first question it is unnecessary to consider your second inquiry.

SUMMARY

State licensing of private does not sufficiently the state in the policies of the child care so as to make their discriminatory practices state action for Fourteenth Amendment purposes. Very truly yours,

A Attorney General of Texas // ps 1898 *4 Carlo8 F. Truan page 4 APPROVED:

-;a

DAVID M. KENDALL,

Opinion Committee

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p. 1899