A stealth assault is being mounted on the Constitution’s state-action doctrine in a case pending before the Supreme Court, Fitzgerald v. Barnstable School Committee.
The Supreme Court has long made clear in cases like Moose Lodge v. Irvis, 407 U.S. 163 (1972) and United States v. Morrison, 529 U.S. 598 (2000) that the government isn’t liable for private discrimination by one person against another, even if, as in the Irvis case, the person discriminating is subject to government regulation and control (like someone with a scarce liquor…
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