THEA~TORNEYGENERAL
OF TEXAS
Auwmiv. TEXASI 78711
September 20, 1974
The Honorable Carlos F. Truan Opinion No. H- 406
Chairman
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 discriminatory laws by institu-
tion.
Dear Representative Truan:
You have indicated that your committee has been presented with
evidence of racial discrimination by private child care facilities licensed
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
licensing program constitutes “state action” and whether on that basis alone
a licensee would be prohibited by federal law from engaging in discriminatory
practices. Accordingly, our opinion is limited to that question and does not
consider whether state law or federal law based on foundations other than the
state acticn concept, such as the commerce clause or the receipt of federal
benefits, would require a child care facility to avoid discriminatory action.
See e.g., 42 U.S.C.. 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:
pe 1896
The Honorable Carlo6 F. Truan, page 2 (H-406)
No state shall 0 . . deny to any person within its
jurisdiction the equal protection of the laws.
If a state program of licensing child care facilities is sufficient
to trigger the operation of the Fourteenth Amendment by constituting the
requisite state action, licensed facilities could not adopt discriminatory
policies. The relationship of the Fourteenth Amendment and a state
licensing 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 implicate
the State in the discriminatory 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.
pe 1897
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
a child care facility receives a license under Article 4442a, V. T. C. S.,
or other similar statute does not, under the existing case law, sufficiently
implicate the State in the discriminatory 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 child
or parent might not have a civil remedy against a child care facility 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 other than the state action concept may not prohibit
discriminatory practices.
Because of our answer to your first question it is unnecessary to
consider your second inquiry.
SUMMARY
State licensing of private child care facilities
does not sufficiently implicate the state in the
policies of the child care facilities so as to make
their discriminatory practices state action for
Fourteenth Amendment purposes.
Very truly yours,
A
Attorney General of Texas
//
ps 1898
The Honorable Carlo8 F. Truan page 4 (H-406)
APPROVED:
-;a
DAVID
Opinion
M. KENDALL,
Committee
Chairman
lg
p. 1899