Content area
Full text
It's an absurd and astonishing fact about current constitutional law that it still hasn't answered, and can't answer, the most basic questions about privatization.
We know the ratio between American soldiers and American private military contractors in the Iraq war: one to one.1 We know the Central Intelligence Agency (CIA) used such contractors to interrogate-and in some cases apparently to torture-captives.2 But thirteen years after Abu Ghraib, we still don't know whether the contractors working there3 were "state actors."4
If a city privatized its entire police force, replacing it with private security contractors, existing Supreme Court case law suggests that the private officers would not be state actors, meaning they could arrest and search with constitutional abandon.5 I'm not saying courts would so hold. I assume they wouldn't. But current state action doctrine actually points to that Constitution-gutting conclusion.6
The privatization black hole at the heart of constitutional law is well known.7 "There is no accepted constitutional theory," as Professor Kimberly Brown puts it, "that prohibits Congress or the President from handing off significant swaths of discretionary governmental power to wholly private entities that operate beyond the purview of the Constitution."8 But the realworld effects of this black hole are often still missed.
Beginning in 2011, the federal government induced private colleges and universities all over the country to investigate, prosecute, adjudicate, and punish alleged law violations under Title IX of the Educational Amendments of 1972, conducting secretive trials according to specified procedures, including a government-dictated standard of proof.9 In other words, the government induced private institutions to do law enforcement on its behalf, a result achieved not through contract, but by threatening to strip those institutions of billions of dollars in federal funding.10 This too was a kind of privatization.11
The existence of state action in the new campus sexual assault trials should be obvious given that the government not only compelled schools to conduct them but mandated certain procedures for them.12 The question is whether these trials have been violating due process. But courts have refused to answer that question on the ground that private colleges and universities are not state actors-and therefore due process doesn't apply.13
This result is not entirely surprising. If courts did find state action, every Title IX sexual...