Sarah Sternlieb (Emory Law School) has posted a fascinating new article on SSRN entitled, When the Eyes and Ears Become an Arm of the State: The Dangers of Privatization Through Government Funding of Insular Religious Groups, which provides a useful contribution to the literature on privatization and government outsourcing. The piece is very impressive for a law student comment. Here is Sternlieb's abstract:
The Shomrim, Hebrew for ‘guards,’ operate as an ancillary police force in Hasidic communities. Defined by devout adherence to traditional norms, Hasidic Jews confine themselves to insular communities within America. However, like many insular or inherently religious communities, they appear to have a propensity to discriminate against outsiders in their attempts at seclusion. Although the Shomrim hold themselves out as their community’s primary police force, they frequently commit bias crimes and other discriminatory acts. This Comment advances the novel argument that the Shomrim are state actors, and that government funding to the Shomrim may also violate the Establishment Clause. The Shomrim receive substantial government funding, maintain close ties and connections with the police and the state, and perform a public function. Because these connections constitute a ‘close nexus,’ the Shomrim’s actions are fairly attributable to the state. As state actors, the Shomrim would be held accountable to constitutional limitations, and would be prohibited from discriminating against outsiders. However, remedying this attribution of state action implicates additional constitutional problems. This Comment proposes that under current state action doctrine and Establishment Clause jurisprudence, the only permissible solution in this context is to remove government ties and funding.
Using the Shomrim as a case study, this Comment addresses the problem of privatization through government funding of insular religious communities and organizations. The Shomrim demonstrate that when the government funds inherently religious providers of social services, a constitutional grey area is met in the attempts to reconcile state action with the Establishment Clause. This Comment asserts the government should be careful in funding inherently religious providers of social services because of an increased likelihood of discrimination.
The question of private contractors being state actors has come up in two recent Supreme Court decisions (both going the wrong way, in my opinion). Very happy to see this new article.
- Dru Stevenson