04.05.2006

In his commentary “Right to Association – Is It OK to Stop “Erol” to Enter the Disco?,” my distinguished colleague advances the thesis that night clubs must not establish and pursue discriminatory guest policies based on guest’s ethnic belonging and that if they do so, the liberal state is obligated to interfere because of its duty to protect the human rights of citizens and/or because it licenses night clubs’ operation.

The object of this commentary is to show that by no means is such a thesis so unconditionally defensible as my colleague wants it to be. Quite on the contrary, its defensibility depends on numerous factors, including the very understanding of the concept of human rights.

To begin with, his thesis may indeed appear unconditionally defensible, but only if made against a very peculiar understanding of the concept of human rights which presupposes that the domains of individual activity – economic, social, cultural, and religious – are constituted and guaranteed by the people themselves; that the entirety of social life is subject to the basic principles of the constitution; and lastly, that the constitution is a comprehensive normative directory for the whole society.[1]

This particular understanding of the concept of human rights gives rise to the so-called Drittwirkung (third party effect) doctrine. According to this judicial doctrine, human rights can be invoked before the courts even in the relationship between private actors and not only between the individual and the state. It can be so because human rights are considered, to use the terminology of the German Constitutional Court, “part of the objective order of values,” which inform the whole normative and social order.[2] In that objective order of values, the sole and direct right to human dignity always prevails over the sole and direct right to private property.

Under such a setting, the state is justified to interfere when a competent private actor, in pursuance of the right to private property, violates the right to human dignity of a citizen, by denying him/her entrance in a night club solely on the basis of his/her ethnic belonging. Consequently, the thesis put forward by my colleague appears unconditionally defensible.

However, the foregoing account is neither the sole nor the dominant understanding of the concept of human rights. Nor is Drittwirkung the sole or dominant judicial doctrine in the sphere under consideration.

There is an alternative and prevailing understanding of the concept which presupposes that human rights actually define a region of state’s negative competence and thus demarcate an autonomous sphere of individual freedom which is exempt from state responsibility; that there was a pre-political sphere of civil society which was shielded from the interventions and regulations of the political authorities and independent from the requirements of democratic legitimacy; and lastly, that the constitution is an “instrument of government” whose scope is limited to the institutions of government.[3]

This alternative understanding of the concept of human rights gives rise to the so-called state action doctrine. According to this judicial doctrine, human rights can be invoked before the courts only if violated by a state action, precisely because their exclusive function is to protect the individual from an excessive and over-zealous government.

Accordingly, for successful invocation of the claim that the state, through its judicial system, must interfere where night clubs pursue discriminatory guest policies based on guest’s ethnic belonging, it has to be shown that the denial of entrance is an action taken by the very state. Since night clubs are usually privately owned, in the most cases managing the night club guest policies will be an activity taken by a competent private actor, and not the state. Therefore, where the night clubs are privately owned and the denial of entrance is an action taken by a competent private actor, my colleague’s thesis fails. Under the said setting, night clubs may establish and pursue discriminatory guest policies based on the guest’s ethnic belonging and the liberal state is not obligated to protect the human rights of citizens who are denied entrance.

However, this is not the complete story behind the state action doctrine. Namely, the very doctrine allows for an additional inference that even a private individual’s act may stand for a “state action” in two cases.

The first case is where a private actor is entrusted by the state to perform functions that are governmental in nature. In such a case, the private individual is deemed to have become an agent of the state, and his acts constitute a state action for the purposes of this so-called “public function” strand of the state action doctrine.

The second case is the so-called “state involvement” strand, which maintains that the private actor’s conduct constitutes a state action if the state is heavily entangled with his activities.

Under the former, denial of entrance in a night club is unlikely to constitute a state action for the purposes of the “public function” strand. Operation of a night club and managing its guest policies is neither a governmental function by nature, nor is it entrusted to the private actor by the state.[4] Accordingly, the “public function” strand of the state action doctrine furnishes no ground for the liberal state to protect the citizen when (s)he is denied entrance in a night club by a competent private actor, exclusively on the basis of ethnic belonging. Again, my colleague’s thesis fails.

However, such denial of entrance may constitute a state action for the purposes of the state involvement strand of the doctrine, any time it is shown that (1) the state requires the private night club to pursue discriminatory guest policies;[5] (2) the state encourages the night club’s pursuance of discriminatory guest policies;[6] (3) the night club that pursues discriminatory guest policies is in a symbiotic, i.e. mutually beneficial, relationship with the state;[7] and lastly, (4) the state and the night club act together in carrying out the night club’s discriminatory guest policies.[8]

Accordingly, the thesis put forward by my colleague can be defended under the state involvement strand of the state action doctrine, but such a defense is conditional, contingent on attendance of the above-mentioned circumstances.

My colleague endeavors to present the fact of state’s licensing of night club operation as a circumstance that transforms the denial of entrance by a competent private actor into a state action for the purposes of the forth prong of the state involvement strand.

However, such an endeavor has been squarely turned down in the jurisprudence.[9] Namely, it has been held that through its act of licensing, the state plays absolutely no part in establishing or pursuing the night club guest policies. There is no suggestion that the standard licensing regulations, either as written or as applied, discriminate against minority groups in their right to apply for night club licenses themselves.[10] What’s more, night club licenses are not issued under quota system, so there is no danger of licensing a monopoly or fulfilling the quota only with applications from the majority.

Similarly, in order to facilitate a finding of a state action in the private denial of entrance into a night club, my colleague endeavors to present night clubs as “public facilities.” The logic behind his attempt seems to be that where a given conduct is undertaken in a public forum, it must be subject to stricter scrutiny as to whether it causes offense to others. While there is nothing inherently wrong with such a logic, his attempt is misplaced due to two reasons.

First, the nature of forum makes no difference when what is at stake is an attempt to convert a private conduct into a state action. Rather, it is relevant in other fields, such as the “freedom-of-expression” jurisprudence. Second, even in the “freedom-of-expression” jurisprudence, neither night clubs nor the other facilities enumerated in his text represent public forae. Instead, public forae are judicially defined as places which bear such status by virtue of custom and tradition – for instance streets, sidewalks and parks – or due to governmental designation. On neither of the two accounts is a night club held to enjoy the status of public forum.

Lastly, my colleague brings the right to association into play, claiming that the denial of entrance amounts to infringement of the right to association of the person being denied entrance.

While introduction of this right may complicate the analysis, it does not save his thesis. What my colleague has neglected is the relational nature of this right. For just as the denial of entrance may violate the right of association of the person who wants to associate with the people already in the night club, the grant of entrance to such a person may violate the right of association of the people already in the night club, who may not want to associate with such a person. Therefore, my colleague’s thesis has better chances of being defended should it make reference only to the right of dignity in the context of Drittwirkung doctrine or the right to equality under the setting of state action doctrine.

With this last point, the object of this commentary is believed to have been accomplished. It showed that the thesis of my colleague – namely, that night clubs must not establish and pursue discriminatory guest policies based on guest’s ethnic belonging and that if they do so, the liberal state is obligated to interfere because of its duty to protect the human rights of citizens – is by no means unconditionally defendable. Instead, its defensibility depends on numerous factors, some of which have been presented above.

At the end – few precautionary notes. The commentary presents only the constitutional perspective of the issue, precisely because human rights – a constitutional subject-matter – have been invoked as a basis for resolution of the conflict between the person being denied entrance and the night club denying him/her entrance. In this sense, the commentary does not preclude seeing the conflict as a purely private legal dispute which has to be ruled according to civil law. Furthermore, in order to avoid such a conflict, which by its very nature may appear to implicate human rights violations, the night clubs are advised – to the extent they really want or need to pursue discriminatory guest policies – to pursue them on grounds different from ethnic belonging, such as dressing code, age, invitation etc. By this, the night clubs will succeed to have their discriminatory guest policies upheld even in case of finding a state action in their conduct of denying entrance. This is so, because even the state is allowed to discriminate in pursuance of its policies as long as such discrimination does not fall under one of the headings of suspect classification: race, religion, nationality or ethnic origin.

[1] Ulrich K. Preuß, “The German Drittwirkung Doctrine and its Socio-Political. Background” in The Constitution in Private Relations: Expanding Constitutionalism, [András Sajó & Renáta Uitz, eds.] (2005).

[2] Lueth, (BverfGE 7, 198 (1958)).

[3] Supra fn 1.

[4] Operation of a park, on the contrary, is usually deemed a governmental function. So generally the operation of a park will constitute “state action” under the “public function” strand. Therefore, even if the park is being operated by private persons, it must still obey constitutional constraints (e.g., it cannot be operated for Macedonians only). See Evans v. Newton, 382 US 296 (1966).

[5] E.g. the state enforces a private agreement among night clubs that none will accept Albanians on their premises. Because the state has lent its state judicial enforcement mechanism to this otherwise private contract, the combination of enforcement and private discrimination violates the right of equality of the citizens of Albanian ethnic origin. See Shelley v. Kraemer. 334 US 1 (1948).

[6] Reitman v. Mulkey, 387 US 369 (1967).

[7] E.g. a city agency owns and runs a parking garage complex, charging for its services. The agency gives a 20 year lease to a privately-operated night club located in the complex. The night club denies entrance to a citizen of an Albanian ethnic origin. In such a case, the Albanian who is denied entrance has his right to equality violated. The relation between the privately-operated night club and the publicly-run garage is so close and symbiotic – the garage could not to operate so viably without rents from the night club and fees collected on the account of night club visits – that the night club’s actions must be imputed to the state, and therefore constitute state action. See Burton v. Wilmington Parking Authority, 365 US 715 (1961).

[8] Georgia v. McCollum , 505 US 42 (1992).

[9] Moose Lodge No. 107 v. Irvis. 407 US 163 (1972).

[10] Id.