THEA~TORNEYGENERAL 

OF TEXAS 

Auwmiv. TEXASI 78711 

September 20, 1974 

The Honorable Carlos F. Truan 

Chairman 

Committee on Human Resources 

House of Representatives 

P. 0. Box 2910 

Austin, Texas 

Opinion No. H- 406 

Re:, Whether licensing of child 

care institutions by the state 

requires compliance with nondiscriminatory laws by institution. 

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 “significantly 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 enterprise 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 Fourteenth 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 M. KENDALL, Chairman 

Opinion Committee 

lg 

p. 1899