# 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 ofchild 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 torecommend state legislation directed at this practice you ask:

Is the issuance ofalicense by aState agency or by a political subdivision ofthe State toany kind ofprivate child-care institution such aState 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 tothe question of whether astate licensing program constitutes “state action” and whether onthat basis alone alicensee 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 offederal benefits, would require a child care facility to avoid discriminatory action. See e.g., 

### 42U.S.C.. Sec. 2000e, et seq. (equal employment opportunity): The Child Nutrition Act of 1966, 42 U.S. C., Sec. 1771, et seq.; 7C.F.R., Sec. 215.14. The Fourteenth Amendment to the United States Constitution provides that:

pe 1896The Honorable Carlo6 F. Truan, page 2 (H-406)

No state shall 0
. . deny toany person within its jurisdiction the equal protection ofthe laws. Ifa state program oflicensing child care facilities is sufficient totrigger 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 astate licensing program was recently discussed by the United States Supreme Court in Moose Lodge No. 107V. Irvis, 407 U.S. 163 (1972). Moose Lodge No. 107was aprivate club which had been granted aliquor license by the state ofPennsylvania. Liquor licenses were not freely available. A quota established the limited number oflicenses which could be issued, and recipients had tocomply 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 ofthe Equal Protection Clause ifthe private entity receives any sort ofbenefit or service at all from the State, or ifitis 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 tofall within the amhit ofthe constitutional prohibition, a. However detailed [liquor license] regulation may be in soroe particulars, it cannot be said toin any way foster or encourage racial discrimination. Nor can itbe said tomake the State in any realistic sense a partner or even ajoint venturer inthe club’s enterprise a . . We therefore hold that, D
. ethe operation ofthe 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 tomake the latter “state action” within the ambit of the Equal Protection Clause of the Fourteenth Amendment. 407 U.S. at 173. 176, 177. pe 1897The Honorable Carlo6 F. Truan, page 3 (H-406)

We believe the reasoning ofMoose Lodge compels asimilar answer toyour question. We beli.eve itwould be held that the mere fact that achild care facility receives alicense 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 tomake them

“state action” within the ambit ofthe Equal Protection Clause ofthe Fourteenth Amendment. This is not to say, of course, that an aggrieved child or parent might not have a civil remedy against achild 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., 410U.S. 431 (1973); Sullivan v. Little Hunting Park, 396 U.S. 229 (1969). Noris itto 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 ofprivate child care facilities does not sufficiently implicate the state in the policies ofthe child care facilities soas tomake their discriminatory practices state action for Fourteenth Amendment purposes. Very truly yours, A

// Attorney General of Texas

ps 1898The Honorable Carlo8 F. Truan page 4 (H-406)

APPROVED: 

# -;a

DAVID M. KENDALL, Chairman Opinion Committee lg

p. 1899