SMGT 3861 Lecture Notes - Lecture 8: Free Exercise Clause, Proselytism, United States Constitution

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10 Apr 2019
Chapter 7
Tuesday, April 9, 2019
5:56 PM
State Action
Except for the Thirteenth Amendment's prohibition on slavery, the U.S.
constitution requires state action (otherwise known as government action)
State actors are those who act in furtherance of their positions as employees
of governmental agencies
Examples: public school teachers, police officers, IRS employees, county
government employees, staff at the DMV, athletic directors at state-run
Theories of Private Actors
Nexus/entanglement examines whether the state's involvement or
entanglement with a private actor's conduct is sufficient to transform the
private conduct into state action and thus subject to constitutional review
Public function theory: a court can find state action in the activities of a
private party if that party undertakes functions or assumes powers that the
government ordinarily performs or exercises
Private Actors/State Actors Application
NCAA not a state actor
High school athletic association typically are state actors
Professional sport leagues and teams: not state actors
First Amendment
Congress shall make no law respecting an establishment of religion or
prohibiting the free exercise thereof, or abridging the freedom of speech or
of the press or the right of the people peaceably to assemble and to petition
the government for a redress of grievances
Religion: contains establishment clause and free exercise clause
Establishment Clause
A sentence in the First Amendment of the United States Constitution that
prohibits the government from establishing a state-sponsored religion,
promoting religion, or favor religion over non-religion
School Prayer
In most cases, a nonsectarian and non-proselytizing student-initiated prayer
before and after a sporting event is a safe haven. Classroom prayer is not
This is hard to establish for school sporting events
o School typically picks student speakers
o School can't direct the process that results in prayer
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