Emory Law Journal

When the Eyes and Ears Become an Arm of the State: The Danger of Privatization Through Government Funding of Insular Religious Groups
Sarah M. Sternlieb Executive Managing Editor, Emory Law Journal. J.D., Emory University School of Law (2013); B.A., University of Virginia (2009). My sincerest gratitude goes to Professor Alexander Volokh, whose boundless knowledge and enthusiasm developed a random query into a substantive legal argument I never thought possible. I would like to thank the entire executive board of the Emory Law Journal for their tireless and impressive work this year; without them this would not be possible. Many thanks also go to Julia Hueckel for her extreme patience, helpful comments, and encouragement. Above all, I must extend my appreciation and thanks to my wonderful parents, who have provided me with unconditional love and support in every way possible throughout all of law school. Finally, I dedicate this Comment to my grandfather, Robert B. Hirsch, who taught me to love the law and question everything—including our religion.

Abstract

The Shomrim, Hebrew for “guards,” operate as an ancillary police force in Hasidic communities. Defined by devout adherence to traditional norms, Hasidic Jews confine themselves to insular communities within America. However, like many insular or inherently religious communities, they appear to have a propensity to discriminate against outsiders in their attempts at seclusion. Although the Shomrim hold themselves out as their community’s primary police force, they frequently commit bias crimes and other discriminatory acts. This Comment advances the novel argument that the Shomrim are state actors and that government funding to the Shomrim may also violate the Establishment Clause. The Shomrim receive substantial government funding, maintain close ties and connections with the police and the state, and perform a public function. Because these connections constitute a “close nexus,” the Shomrim’s actions are fairly attributable to the state. As state actors, the Shomrim would be subject to constitutional limitations and prohibited from discriminating against outsiders. However, remedying this attribution of state action implicates additional constitutional problems. This Comment proposes that under current state action doctrine and Establishment Clause jurisprudence, the only permissible solution in this context is to remove government ties and funding.

Using the Shomrim as a case study, this Comment addresses the problem of privatization through government funding of insular religious communities and organizations. The Shomrim demonstrate that when the government funds inherently religious providers of social services, a constitutional gray area is created in the attempts to reconcile state action with the Establishment Clause. This Comment asserts the government should be careful in funding inherently religious providers of social services because such providers increase the likelihood of discrimination.

Introduction

In a predominantly Jewish area in 2010, an African-American teen was beaten with a radio and told “[y]ou don’t belong around here” just blocks away from his own neighborhood. 1See Daniel Burke, Volunteer Unit Accused of Racism, Wash. Post, Feb. 5, 2011, at B2 (internal quotation marks omitted). Nearly a decade earlier, men in navy blue uniforms 2Corey Kilgannon, In Protecting Hasidic Neighborhoods, Squads Patrol Without Guns or Badges, N.Y. Times, Sept. 4, 2010, at A14 (noting the Shomrim “wore blue jackets with emblems . . . [and displayed] forelocks of the Hasidic”). struck a group of Hispanic girls with umbrellas and sprayed them with a chemical substance. 3Anna Schneider-Mayerson, Hispanic Activists Want Shomrim Disbanded, N.Y. Sun, May 10, 2002, at 1. In another Jewish area, men driving patrol cars struck an African-American male with a baton and sprayed him with mace. 4See Alex Mindlin, Patrolling the Streets, and Dissing the Rivals, N.Y. Times, June 1, 2008, at CY6. Ten years before, a group of West Indian teens were pursued and run off the road by a man shouting racial slurs. 5Driver Is Accused of Chasing Youths, N.Y. Times, Apr. 26, 1997, at 27.

Unifying these attacks are the perpetrators—men who wear navy blue, police-style uniforms and drive blue and white patrol cars. 6See Matthew Shaer, Among Righteous Men: A Tale of Vigilantes and Vindication in Hasidic Crown Heights 27 (2012); see also supra notes 1–5; cf. Shaer, supra, at 13 (entering a room, one man “saw seven men in navy blue uniforms and thought, Police”). Often confused with the police, they are not police but the Shomrim—licensed citizen patrol groups found in many Hasidic 7Hasidic Jews represent a sect of extremely religious, mystical Orthodox Judaism. Within the Hasidism are different sects with particular views and specific norms and dress (e.g., Satmar, Bobovich, and Lubodovich Hasidim). Although they tend to live and work within their own groups, they interact substantially with one another. This Comment refers to the various Hasidic sects collectively. See Joseph Berger, Killing Rattles a Jewish Community’s Long-Held Trust of Its Own, N.Y. Times, July 15, 2011, at A1. See generally Hasidism, in Encyclopedia of Religion in America (Charles H. Lippy & Peter W. Williams eds., 2010), available at http://library.cqpress.com/era/encyra_943.1. communities across the United States. 8Nick Pinto, Gotham’s Crusaders, Village Voice, Sept. 7, 2011, at 9. Reports are replete with accusations against the Shomrim of targeting blacks and committing other bias crimes. 9See, e.g., Karen Matthews, Orthodox Communities Rely on Patrols for Safety, Associated Press, July 16, 2011, available at http://www.usatoday.com/news/nation/2011-07-16-brooklyn-boy-volunteer-patrol_n.htm (“[C]ritics have accused some of being vigilantes who target blacks.”). Articles frequently cite minority community members who have been stopped simply for not looking like the Hasidic Jews the Shomrim aim to protect. 10See, e.g., David Kocieniewski, Hasidic Patrol Group Faces Questions After a Crown Heights Clash, N.Y. Times, May 11, 1996, at 21 (noting that members of the Shomrim randomly stop black pedestrians to ask why they are in the neighborhood to make outsiders feel unwanted); Pamela Newkirk, Ice Slowly Thawing Ethnic Tension Seen Lessening, Newsday (N.Y.), July 28, 1991, at 1. Even more of these crimes likely go unreported.

Although the Shomrim work with and act like the police and receive funding primarily from direct government grants, they are not held liable in the same way as ordinary police officers. Because they are assumed to be private actors, constitutional provisions protecting individual rights do not apply. 11U.S. Const. amend. XIV, § 1 (“[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person . . . the equal protection of the laws.” (emphasis added)).

This Comment addresses the problem of privatization and government funding of insular religious communities and organizations, using the Shomrim in Brooklyn, New York as a case study. Although the Shomrim may seem unique in many respects, they are a salient example of government funding of religious social service providers. The Shomrim emphasize an important and interesting intersection of the privatization of government power and government funding of insular religious organizations and social service providers.

Contention and debate surround the funding of religious groups, particularly with the tremendous amount of money funneled to religious organizations through charitable choice and faith-based initiatives. 12See generally Ira C. Lupu & Robert W. Tuttle, The Faith-Based Initiative and the Constitution, 55 DePaul L. Rev. 1 (2005) (identifying the partnership between religious entities and government agencies and describing the constitutional challenges such partnerships present). On the one hand, religious organizations are often considered the most effective providers of social services. 132 Kent Greenawalt, Religion and the Constitution: Establishment and Fairness 353 (2009). On the other hand, there are many problems associated with funding religious organizations, including the potential for discrimination, a lack of religious autonomy, and the tension between the Establishment Clause and the Free Exercise Clause. 14See generally Lupu & Tuttle, supra note 12.

The debate is further compounded by the propensity for inherently religious or insular groups, such as the Shomrim, to discriminate against outsiders. The provision of government funds to these groups should be suspect due to the “significant pressure on those institutions to discriminate . . . [to] fulfill their broad religious mandates.” 15David Saperstein, Public Accountability and Faith-Based Organizations: A Problem Best Avoided, 116 Harv. L. Rev. 1353, 1366 (2003). This is especially concerning because of the potential for religious entities to use government funding to further partisan political ends, promising votes for money. 16See id. at 1364–65. While a religious group’s proclivity to discriminate is normally discussed in the terms of religious discrimination, the issue of discrimination against outsiders is significant and unfortunately given little attention.

The question is whether these providers, who have been providing social services for years, should now be able to “benefit from the government’s desire” for privatization. 17Martha Minow, Public and Private Partnerships: Accounting for the New Religion, 116 Harv. L. Rev. 1229, 1240 (2003). There is some concern about whether there are certain areas that are so “governmental,” such as punishment, that they should not be privatized. 18See Saperstein, supra note 15, at 1383 (responding to Martha Minow’s statement). This question of government privatization using religious social service providers “has significant constitutional implications for religious entities, which have rarely, if ever, been litigated.” 19Id.

In an age of increasing privatization and judicial deference to administrative decisions, 20Donald S. Dobkin, The Rise of the Administrative State: A Prescription for Lawlessness, 17 Kan. J.L. & Pub. Pol’y 362, 364–65 (2008); see also Hadar Aviram et al., Moving Targets: Placing the Good Faith Doctrine in the Context of Fragmented Policing, 37 Fordham Urb. L.J. 709, 727 (2010). decisions regarding the regulations that create semi-private actors may be immune from review. 21See Aviram et al., supra note 20, at 727. Privatization poses the additional danger that “private actors will exploit their position in government programs to advance their own financial or partisan interests at the expense of program participants and the public.” 22Gillian E. Metzger, Privatization as Delegation, 103 Colum. L. Rev. 1367, 1372 (2003). This concern is striking in the context of religious organizations that choose to insulate to keep to themselves. The Shomrim highlight this concern as a government attempt to privatize a religious social service provider.

This Comment advances the novel argument that the Shomrim are state actors and may present an Establishment Clause problem. Because the Shomrim, like other private actors, are not held to the confines provided under the Constitution, the victims of discrimination at the hands of religious social service providers are left with little recourse. Even more concerning, in the face of accusations of racial discrimination and violence the Shomrim are said to receive large amounts of public funding from politicians in order to buy their votes.

Due to the self-imposed insulation of the Hasidic community, it is unsurprising no one previously has written about the Shomrim. However, in the aftermath of more publicized discriminatory actions, as well as a young boy’s murder, 23See Berger, supra note 7. the media has paid increasing attention to some of the ongoing tensions and problems posed by the Shomrim. 24See infra Part I. While the Hasidic community generally avoids the American legal system, 25The Hasidim also avoid secular courts, “which they view as less than perfectly attuned to their interests,” because Jewish law (halacha) calls on Jews to go through beis din, or rabbinical arbitration, first. Shaer, supra note 6, at 3. one case currently pending presses Hasidic patrol groups and the State to be held to greater liability for their actions. 26See Amended Complaint and Demand for Jury Trial, Crown Heights Shomrim Volunteer Safety Patrol, Inc. v. City of N.Y., No. 11 CV 0329 (KAM)(JMA) (E.D.N.Y. Sept. 6, 2011).

In Part I, this Comment describes the Shomrim and their role in the Hasidic community, and it explains the Shomrim’s relationship, similarities, and ties to the police and state. Part I then explores criticisms of the Shomrim and addresses the legal issues they present. Part II considers the Shomrim in a religious context, suggesting the government’s interactions with the Shomrim may violate the Establishment Clause. The Establishment Clause bars excessive funding or non-neutral delegation to the Shomrim, but it cannot stop the Shomrim in their discriminatory actions.

Part III advances the argument that the Shomrim are state actors and are subject to constitutional limitations because they perform a public function and maintain a close nexus with the state. The discriminatory nature of the Shomrim’s conduct also renders a finding of state action more likely. A state action argument would regulate the Shomrim as to constitutional limitations, giving the Shomrim or the government a problematic choice—regulation according to the Constitution, thus limiting their ability to keep out outsiders, or disentanglement and a halt to funding and ties with the state. Analysis under both the state action doctrine and the Establishment Clause provides an important view of the constitutional boundaries confronted when working with insular religious organizations. 27Although there is some criticism of whether the Establishment Clause and the state action doctrine should overlap, the intricacy of the relationship between the two doctrines is beyond the scope of this Comment. For a more in-depth discussion, see Lupu & Tuttle, supra note 12. Further, in this age of privatization where the lines between public and private are increasingly blurred, “the contours of the state action doctrine may come to define the contours of our most basic constitutional rights.” 28Developments in the Law—State Action and the Public/Private Distinction, 123 Harv. L. Rev. 1248, 1250 (2010) (citing Sam Kamin, The Private Is Public: The Relevance of Private Actors in Defining the Fourth Amendment, 46 B.C. L. Rev. 83, 85 (2004)).

Part IV assesses possible solutions to the constitutional issues implicated by the Shomrim and asserts that disentanglement and defunding are the only constitutionally permissible solutions. The inclination of an insular community to discriminate against outsiders to maintain its insularity highlights the danger of government allocation of funds and close ties to religious social services. Finally, this Comment concludes by asserting that the government should be careful in its relationships with insular communities.

I. The Shomrim: The “Eyes and Ears” Become an Arm of the State

This Part first depicts the Shomrim and their relationship to the Hasidic community, and then it explains the relationship between the Shomrim and the police. Second, this Part focuses on frequent criticisms of the Shomrim, and it concludes by highlighting the legal issues pertaining to the Shomrim.

A. The Shomrim and the Hasidic Community

The Shomrim exist for two primary reasons: (1) to act as a police force “to protect against criminality,” and (2) to protect the Hasidic community’s way of life, “erect[ing] a human barrier between the Jewish settlement and the bustle of the world outside city limits.” 29Shaer, supra note 6, at 2 (emphasis omitted). Shomrim organizations exist wherever large Hasidic communities are located. 30Matthew Shaer, A Shtetl Divided: Messianic Vigilantes, Brawling Hasidim, and the Battle for Jewish Brooklyn, Harper’s Mag., Jan. 2011, at 53, 54. While different Hasidic communities each have their own group, 31E.g., Flatbush Shomrim, Crown Heights Shomrim, Crown Heights Shmira, Williamsburg Shomrim, Borough Park Shomrim, and Kings County Shomrim. this Comment refers to the Shomrim of Brooklyn in a general sense because of their similarity and unified work.

In Brooklyn, Hasidic communities live in an enclosed, closeted world that “foster[s] a sense of community, solidarity, and intimacy.” 32Shaer, supra note 6, at 8. Known for their strict adherence to traditional Jewish law and custom, 33Shaer, supra note 30, at 54 (“Their lives are circumscribed by prayer, study, familial obligation, and a deep commitment to their Rebbe, or grand rabbi, who is considered closer to God than are other mortal men.”). the Hasidic sects in Brooklyn are considered a “textbook example of a ‘discrete and insular minority.’” 34T. Alexander Aleinikoff & Samuel Issacharoff, Race and Redistricting: Drawing Constitutional Lines After Shaw v. Reno, 92 Mich. L. Rev. 588, 596 (1993) (referring to the Hasidim in Brooklyn regarding United Jewish Organizations v. Carey). The sanctity of their religion is omnipresent in the Hasidic Jews’ eyes, and all aspects of life are ordered in accordance with the direction and authority of their Rebbe, the grand or head rabbi. 35See 2 Greenawalt, supra note 13, at 229. Therefore, it is unsurprising that the Shomrim both promote and patrol the barrier between the larger city and their religiously mandated life.

In an emergency, the Shomrim are the Hasidim’s 36Hasidim, meaning “pious one,” refers to the Hasidic Jewish people. first line of defense. 37Kilgannon, supra note 2 (“Many area residents are more likely to call the patrol’s hot line number than 911.”). The Shomrim are the preferred police because they know the territory, are trusted by their insular community, 38The Hasidic community is frequently untrusting of outsiders. See id. and are able to speak Yiddish, their community’s primary language. 39Corey Kilgannon, For Hasidim, First Call for Help Often Isn’t to 911, N.Y. Times City Room (July 15, 2011, 2:35 PM), http://cityroom.blogs.nytimes.com/2011/07/15/in-hasidic-areas-first-call-for-help-isnt-to-911. Even the police utilize the Shomrim as a liaison in the community. 40Jordan Heller, Jewish Street Patrols Curb Crime—and Generate Controversy, Christian Sci. Monitor, Feb. 11, 2009, at 25. The New York Police Department (NYPD) considers the Shomrim its “eyes and ears,” relying on them to go beyond the NYPD’s normal reach. 41Kilgannon, supra note 2. Additionally, the Shomrim have come in conflict with the NYPD as well as the community they aim to protect. See Shaer, supra note 6, at 3.

B. The Shomrim Act like the Police and Are Intricately Tied to the Police

Composed of Jewish volunteers, the Shomrim function similarly to an auxiliary police force. 42Pinto, supra note 8, at 10. Some Shomrim members are NYPD auxiliary force members, and some participate in the COP program (Community Oriented Policing). Shaer, supra note 6, at 73, 165. Although the Shomrim began many years ago as a few individual volunteers, the organization has matured into a government-funded supplement to the NYPD. 43See Pinto, supra note 8, at 12. But the Shomrim are no ordinary citizen patrol or neighborhood watch group—they follow suspects, trap perpetrators, 44Kilgannon, supra note 2. encounter dangerous situations, 45For example, in 2010 four Shomrim members were shot after pursuing and confronting a known perpetrator. Anahad O’Connor & Mick Meenan, Man Shoots Four Members of Jewish Patrol in Brooklyn, N.Y. Times, Sept. 3, 2010, at A16. and “rule the streets like real cops—driving unmarked cars, flashing emergency lights and snatching people they think are criminals.” 46Simone Weichselbaum, Praise & Scorn for Hasidic Patrols. Some Say They Target Minorities, N.Y. Daily News, July 5, 2011, at 3. The Shomrim also maintain twenty-four-hour hotlines and dispatch stations. 47Heller, supra note 40. Fiercely proud of their work, the Shomrim post pictures of their arrests with the NYPD and their aid in collecting crime-scene evidence on neighborhood websites and the Shomrim Facebook pages. 48See, e.g., CrownHeights Shomrim, Facebook, http://www.facebook.com/crownheights.shomrim (last visited June 18, 2013); Yeshiva World News, http://www.theyeshivaworld.com/local/nyc (last visited June 18, 2013). Even critics admit that while the patrols have their flaws, the Shomrim provide a beneficial service to the community at large. 49Heller, supra note 40.

The Shomrim bear a striking resemblance to the NYPD. Listening to police scanners, the Shomrim cruise the neighborhood 50Weichselbaum, supra note 46. and carry radios to keep in touch with one another. 51Kilgannon, supra note 39. Members wear blue jackets with emblems resembling the NYPD logos, rope off areas with yellow crime-scene tape, 52The Shomrim use yellow crime scene tape labeled “shomrim.” Kilgannon, supra note 2. and drive blue and white patrol cars with “official emblems,” 53See id.; see also infra note 57. lights, and sirens. 54See infra notes 57–58. The Shomrim even have the same “courtesy, professionalism, respect” emblem that the NYPD has on its patrol cars. See id. The patrol cars 55The Shomrim also maintain legions of scooters similar to those used by the NYPD and command centers that also mimic NYPD command centers. Compare Photos: Shomrim Roll Out New Vehicle Design, CrownHeights.info (May 12, 2010), https://crownheights.info/picture-of-the-day/26270/photos-shomrim-roll-out-new-vehicle-design/ (picturing Shomrim patrol cars marked the same way as NYPD older design scooters), with Picture of the Day—The Police Response to Carjacking, CrownHeights.info (Feb. 14, 2011), http://crownheights.info/picture-of-the-day/32393/picture-of-the-day-the-police-response-to-carjacking/. look exactly like the NYPD patrol cars; from the pictures below it is apparent why the Shomrim may be confused with the NYPD. 56See infra notes 57–58. The only discernible difference in the two cars is that the NYPD emblem is replaced with either “SHOMRIM” or an acronym representing the particular neighborhood patrol.

A Shomrim Patrol Car 57Shomrim Put Out First Marked Patrol Car, CrownHeights.Info (Oct. 3, 2006), http://crownheights.info/general/3271/shomrim-put-out-first-marked-patrol-car/. CHVP stands for Crown Heights Volunteer Patrol, a Shomrim patrol in Brooklyn. :

A Shomrim Patrol Car

An NYPD Patrol Car 58Police Car Web Site, http://policecarwebsite.net/fc/ny/nypd/nypd567.jpg (last visited June 18, 2013). :

An NYPD Patrol Car

Similar to undercover police, the Shomrim utilize unmarked cars to tail suspected wrongdoers in matters requiring more stealth. 59O’Connor & Meenan, supra note 45. The Shomrim also use police-style red rotating lights. 60Weichselbaum, supra note 46. However, reports assert that their use of the “red-and-blue backlight package” is illegal. Id. These flashing lights are most likely an attempt to assert the Shomrim’s authority. 61The fact that the police have not stopped the Shomrim’s use of the lights may indicate their de facto allowance. See infra Part III.

The NYPD maintains a close relationship 62See, e.g., Shomrim – שומרים, Levaya of Leiby Kletzky HY”D, Facebook, http://www.facebook.com/media/set/?set=a.226042130772432.53081.162855353757777&type=1 (last visited June 18, 2013) (showing the Shomrim working, literally, hand-in-hand with the NYPD to control the crowds at a young boy, Leiby Kletzky’s, funeral). with the Shomrim and relies on them for much of the police work done in the Hasidic communities. The manpower of the Shomrim “allows the police to go further in their search,” adding value and efficiency to the understaffed and overworked NYPD. 63Matthews, supra note 9. Some Shomrim members work directly with the police, and many receive or undergo training with the NYPD. 64See Shaer, supra note 6, at 165; see also Jacob Sugarman, Watchmen, Tablet Mag. (May 26, 2011, 7:00 AM), http://www.tabletmag.com/jewish-news-and-politics/68298/watchmen (noting the Shomrim’s “biennial training regimen” with the NYPD). Like the police, they are subjected to background checks and are fingerprinted. 65See Sean Gardiner & Alison Fox, Civilian Patrol Was Family’s First Call, Wall St. J., July 16, 2011, at A15. In 2009, one group even received space to work in the squad room of the Seventy-First Precinct House. 66See Shaer, supra note 6, at 165. They received “keys to several city vehicles . . . caps and uniforms, and badges,” becoming members of the Civilian Observation Patrol and reporting to the community affairs desk. 67Id. Shaer asserted the group (Shmira) received this space to “keep a tight rein on the Shmira” and in retaliation against another Shomrim group that refused to cooperate with the NYPD. For further discussion of this as well as the rivalry and split between two Shomrim groups in Crown Heights, see id. Some members are also members of the NYPD auxiliary force. 68Id. at 73.

C. Funding of the Shomrim and Ties to the State

In addition to the close ties with the police department, the Shomrim receive and rely on a substantial amount of local government funding that enables them to function. Funding comes from city council appropriations, as well as from various local government officials through member-items. 69Pinto, supra note 8, at 13. Member-items, “portion[s] of state funding allocated by the [New York] Senate and Assembly,” must be “used for a public purpose.” Resources: Member Items, N.Y. Open Gov’t, http://www.nyopengovernment.com/NYOG/resources_member.html (last visited June 13, 2013). The Shomrim receive more money than other community patrol organizations and are “without peer when it comes to securing public money for their operation.” 70Pinto, supra note 8, at 13; see also Editorial, Shomrim Shanda, N.Y. Post, Aug. 7, 2011, at 24 (noting that the Shomrim received $130,000 in city council member items from the 2011 budget); Matthews, supra note 9 (explaining that office rent and two-way radios were funded by donations, with some support from local elected officials, and that the Shomrim wear vests and jackets donated by the police department). Despite this criticism, some politicians assert that it is good sense to help equip community organizations like the Shomrim. See Pinto, supra note 8 (noting that Brooklyn politicians assert good sense to equip community organizations like the Shomrim). Government funding facilitates the purchase of sophisticated equipment, including state-of-the-art, police-style mobile command center trucks. 71 Pinto, supra note 8; cf. John Doyle, Van with a Plan—Orthodox Patrollers Holy Rollers in Luxeunit, N.Y. Post, May 25, 2009, at 17 (criticizing the $250,000 command center paid for by grants from the city). In March 2012, the Borough Park Shomrim received a new “state of the art” mobile command center through funding from the city council. The unveiling was celebrated by a wide array of government officials that included a U.S. Representative, the New York City comptroller, a state senator and state assemblyman, city council members, and NYPD inspectors. See A New State of the Art Command Center for Borough Park Shomrim, Assemblyman Dov Hikind (Mar. 26, 2012), http://dovhikind.blogspot.com/2012/03/new-state-of-art-command-center-for.html. The receipt of “an iniquitous amount of government funding . . . and preferential treatment from the fire and police departments and municipal services,” engender feelings of resentment among outsiders in the community. 72Shaer, supra note 30, at 54.

Like any government funding, the money appropriated to the Shomrim is not without political motivations. Hasidic communities are well-known for being “the most disciplined voting bloc.” 73Pinto, supra note 8, at 13 (internal quotation marks omitted). Because of the predictable voting bloc—community members vote for whomever the Rebbe proposes—Hasidic communities are frequently utilized by politicians, both locally and nationally. 74Id.; see also Shaer, supra note 6, at 52. The “enormous power [insular group] voting blocs have in American politics” is well recognized, despite the famous Carolene footnote arguing for protection of such powerless groups. Bruce A. Ackerman, Beyond Carolene Products, 98 Harv. L. Rev. 713, 728 (1985). Unsurprisingly, the community wields tremendous power in New York politics; this is often cited as a reason police strive to keep relations with the Shomrim amicable. 75Pinto, supra note 8, at 10 (noting the police were “careful not to antagonize the Shomrim”); see also Newkirk, supra note 10 (describing the disproportionate Hasidic presence on the school board and preferential treatment of Shomrim when they stormed the precinct). This political power would be troubling, especially if the city turns a blind eye to the Shomrim’s blatant violations.

D. Criticisms of the Shomrim

The Shomrim’s funding and close relationship with the state is not without its costs and criticisms. While police credit the Shomrim for aiding them in arrests, the Shomrim are also accused of discrimination against outsiders, the nonreporting of certain crimes, vigilantism, and a lag time in reporting crimes. 76See Kilgannon, supra note 2. The Shomrim frequently begin searches themselves, without waiting or calling for police aid and intervention. 77See Kilgannon, supra note 39. There is a “longstanding issue” with the Shomrim’s delay in notifying the police of suspected crime and other incidents. 78Id. (internal quotation marks omitted).

Internally, the Shomrim enforce the norms of their ultrareligious sect, which may include covering up 79An issue with mesira, the Talmudic prohibition against telling on another Jew, is also implicated as a reason invoked by rabbis to justify not reporting abuse to secular authorities. See Pinto, supra note 8, at 10. sexual abuse and child molestation. 80See id. at 14. When these crimes are reported to the Shomrim, the issues frequently are covered up and the cycle is perpetuated where “rabbis, youth leaders, and yeshiva teachers caught molesting children [are] shielded from the secular justice system.” Id. at 11; see also Berger, supra note 7. The police are so closely tied to the Shomrim that police will often call them when the police receive reports of sexual abuse. 81See Pinto, supra note 8, at 12. This frequently results in the Shomrim dissuading individuals from pressing charges, 82Id. at 14. perpetuating the cycle of abuse.

Vigilantism is a persistent problem with the Shomrim, and it usually manifests itself through racially discriminatory actions. 83See Kilgannon, supra note 2 (describing 1996 case where members were arrested after accusations of beating up a black man); Matthews, supra note 9 (noting criticisms of the Shomrim as “being vigilantes who target blacks”); Newkirk, supra note 10 (noting that a Hispanic leader described the Shomrim as “‘vigilantes who have terrorized our community’”). The Shomrim are repeatedly charged with targeting minorities, beating up black men and children, 84See Matthews, supra note 9. and racial profiling. 85See Heller, supra note 40. Minorities venturing into the Hasidic communities frequently are stopped and questioned on their presence in the area. 86See, e.g., Dan Morrison, Heights of Anger, Newsday (N.Y.), May 11, 1996, at A05 (noting that law enforcement sources stated the Shomrim stop blacks and question why they are there). Black residents who were stopped stated the Shomrim “are always trying to make you fe[e]l unwanted” and watched. 87See Kocieniewski, supra note 10 (internal quotation marks omitted). One author stated: “Locals regularly reported being stopped and asked for identification; several men said they had been collared and shoved into the back of a squad car, for no discernible reason other than the fact that they were black.” 88See Shaer, supra note 6, at 52.

Community websites, videos on YouTube, and the Shomrim’s Facebook pages depict the Shomrim detaining and assisting in arresting suspected criminals, who are invariably depicted as minorities—outsiders to the Hasidic community. 89See, e.g., Shomrim – שומרים, One Arrested for Robbery & Bomb Scare by Boro Park Shomrim (BSSP), Facebook, http://www.facebook.com/media/set/?set=a.196550410388271.45111.162855353757777&type=1 (last visited June 18, 2013); Shomrim – שומרים, Robbery at Gunpoint, and Attempted Carjacking 5/3/11, Facebook, http://www.facebook.com/media/set/?set=a.196547460388566.45109.162855353757777&type=1 (last visited June 18, 2013). A promotional video demonstrates the Shomrim’s pointedly discriminatory pursuits. 90See Pinto, supra note 8, at 12 (describing a video released by the Shomrim). To view the video, see Brooklyn South Safety Patrol, YouTube (July 19, 2011), http://www.youtube.com/watch?v=G-s4RoaAt1g&feature=player_embedded. For example, the Shomrim video depicts the Shomrim in pursuit of a purse thief (a black man) and calling the police only after the man is caught and surrounded. 91Later in the video, Shomrim members heroically scale a balcony to catch a Hispanic man breaking into an apartment after a scared Hasidic child calls the Shomrim, rather than 911. See Pinto, supra note 8, at 12.

Minority groups claim the Shomrim receive preferential treatment from the NYPD and the city. Alleged preferential treatment of the Hasidic community in housing, parking tickets, and arrests in the past have resulted in investigation. 92Newkirk, supra note 10. For example, Hispanics claimed that the NYPD displayed favoritism by only arresting one Hasidic man after over three hundred Hasidim stormed a police precinct to protest a Hasidic man being charged with sexual abuse. 93Id. Forty-six officers were injured. Id.

E. The Legal Issues Presented by the Shomrim

The Shomrim should be held accountable for their discriminatory and wrongful actions, especially when they commit such actions under the auspices of the police and are supported almost entirely through government funding. However, the current recourse is insufficient to effectively control the Shomrim’s wrongful actions. One problem lies in the fact that the insularity of the community may prevent reports of wrongdoing from the inside. 94This is also an issue stemming from the Jewish law of merisah, which prevents Jews from reporting other Jews. See Pinto, supra note 8, at 10. Outside of their community, criminal law is a possibility. Although a limited number of cases have been filed, criminal law is significantly underused. This may also be due to the Shomrim’s authoritative appearance in their community and to outsiders, as well as their pervasive ties with the police, who may be inclined to let charges slide. 95Cf. Pinto, supra note 8 (discussing the political power held by the Hasidic populations because of the uniform way they vote). Tort liability is an additional route; however, the potential plaintiffs are typically limited to disadvantaged groups that may not have access or interest in the legal system.

The political power wielded by the Shomrim further insulates the Shomrim from liability. Local government officials, along with the NYPD, repeatedly express their gratitude for and utilize the Shomrim as a supplemental police force in their busy state. As a result, a perverse incentive exists for the government to privatize the Shomrim, thus allowing the Shomrim (as private actors not held to the Constitution) to do what the government could not constitutionally do otherwise. 96Cf. Metzger, supra note 22 (describing the perverse reasons why private actors seek to perform traditional government functions). The Shomrim are accused of behavior that would be unquestionably unconstitutional if engaged in by public police officers. Thus, without appropriate recourse from politics, tort law, or criminal law, the Shomrim continue with their wrongful acts unfettered and funded by the government.

The following two Parts of this Comment consider the actions of the Shomrim from a constitutional standpoint, examining the Shomrim under the Establishment Clause and the state action doctrine. There are difficulties inherent in these areas of law—both state action and Establishment Clause jurisprudence are complex, value laden, fact intensive, and lacking specific guidelines from the Supreme Court. However, considering the publicly funded discrimination committed by the Shomrim, an attempt at such an analysis is imperative. This analysis also highlights some of the implications resulting from the privatization of inherently religious organizations.

II. The Shomrim and the Establishment Clause: Carefully Toeing the Line of Religious Entanglement

Given the inherently religious nature of the Shomrim, an observer might naturally think that government involvement with the Shomrim results in an Establishment Clause problem. This Part explores a potential Establishment Clause claim and finds the Shomrim may present an Establishment Clause problem.

The First Amendment provides that “Congress shall make no law respecting an establishment of religion.” 97U.S. Const. amend. I. The Establishment Clause was incorporated and applied to the states under the Fourteenth Amendment. Everson v. Bd. of Educ., 330 U.S. 1 (1947). At its core, the Establishment Clause is meant to prevent a “fusion of governmental and religious functions.” 98See Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 222 (1963). Unfortunately, the convoluted Establishment Clause jurisprudence renders it difficult to precisely draw the line of where government establishes religion. Strict interpretation of the Establishment Clause would deem the provision of “even the most essential public services” 99Brandon v. Bd. of Educ., 635 F.2d 971, 975 (1980) (including public services such as fire, police, and transportation). to religious organizations a violation of the Establishment Clause. 100Id. Like other religious organizations, it is clear that the Shomrim are not required to be completely isolated from government or society. 101See, e.g., Lynch v. Donnelly, 465 U.S. 668 (1984) (explaining that the Establishment Clause does not create a complete wall between church and state). Problems arise, for example, when religious leaders make government decisions or when religious matters receive invasive review and supervision by public officials. 102 See 2 Greenawalt, supra note 13, at 11.

The state then must act neutrally with religious organizations, allowing a certain degree of accommodation. 103See generally id. at 336–51. However, within this proscribed neutrality the state must take care not to accommodate direct support to a religious organization too much, where the “breach of neutrality . . . today a trickling stream may all too soon become a raging torrent.” 104Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 225 (1963). Although the Establishment Clause typically forbids “sponsorship, financial support, and active involvement of the sovereign in religious activity,” 105Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 772 (1973) (internal quotation marks omitted). the issue is “one of degree.” 106Meek v. Pittenger, 421 U.S. 349, 359 (1975) (internal quotation marks omitted), overruled by Mitchell v. Helms, 530 U.S. 793 (2000). In analyzing the aid provided, determination of an Establishment Clause violation hinges to a large extent on the degree of the independent secular function. 1076 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure § 21.4(c)(v) (4th ed. 2008). Most challenging, and most likely to present an Establishment Clause violation, are institutions that are pervasively religious without a clearly independent secular function. 108Id. These institutions are problematic because they require many safeguards in order to both keep religion separate and prevent excessive entanglement. 109Id. For instance, aid to certain social service providers (e.g., religious hospitals) is frequently deemed to have an independent, secular function of providing medical care. 110See, e.g., Bradfield v. Roberts, 175 U.S. 291, 297 (1899). See generally 6 Rotunda & Nowak, supra note 107, § 21.4(c)(v).

This Part analyzes the Shomrim in the context of the Establishment Clause. 111While standing is another hurdle that must be overcome in bringing an Establishment Clause claim, for the purposes of this Comment standing is not substantively considered. The Court has tightened standing requirements in recent years, but standing would likely not be an issue here. See John Witte, Jr. & Joel A. Nichols, Religion and the American Constitutional Experiment 170–73 (3d ed. 2011). First, using the nondelegation framework articulated in Larkin v. Grendel’s Den, 112459 U.S. 116 (1982). it is clear that the Shomrim are not delegated government authority in violation of the Establishment Clause. Second, consideration of the Shomrim using the test provided in Lemon v. Kurtzman 113403 U.S. 602 (1971). aids in discovering the nature of the Shomrim. Application of the Lemon test, or any Establishment Clause test, is novel in this circumstance.

While it is possible the Shomrim violate the Establishment Clause, given the most recent direction of the Supreme Court’s Establishment Clause jurisprudence 114See generally Richard C. Schragger, The Relative Irrelevance of the Establishment Clause, 89 Tex. L. Rev. 583 (2011) (noting that given recent Establishment Clause jurisprudence, courts are unlikely to find an impermissible establishment of religion). ultimately it may be unlikely a court would find the government truly “establishes” religion through the Shomrim. Regardless, analysis of the Shomrim under the Establishment Clause provides insight into the constitutional problems posed by the privatization of government power in inherently religious organizations. 115See infra Part IV.

A. Delegation and the Village of Kiryas Joel

Government power that is delegated to religious institutions may violate the Establishment Clause and is particularly suspect in the context of insular communities, “an electorate defined by common religious belief and practice.” 116Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 710 (1994). In Larkin, 117While the Supreme Court analyzed Larkin as “entanglement” under the three-pronged Lemon test, delegation was used independently in Kiryas Joel, without mention of Lemon, and is significant enough to be considered on its own. a Massachusetts law allowed churches to block the issuance of liquor licenses to establishments within 500 feet of the church. 118459 U.S. 116, 117 (1982). The Supreme Court held the delegation of veto power over liquor licenses vested “discretionary governmental powers in religious bodies.” 119Id. at 123. Such power “enmeshes” churches with the exercise of government power without any standards or guarantees that the power will be exercised in a religiously neutral way. 120Id. at 125–26.

While the Shomrim do not receive a specific delegation of government power, some facts suggest they receive a de facto delegation of government police power. 121See supra Part I. The Shomrim may be “enmeshed” with the government by exercising police power. The Shomrim receive a license that is neutrally applied to all security, watch, and patrol groups to simply patrol their areas. 122See N.Y. Comp. Codes R. & Regs. tit. 19, § 170.1 (2013). This is permissible, and had the delegation in Larkin been a generic power granted to all churches, it likely would not have violated the Establishment Clause. 123See Alexander Volokh, The Constitutional Possibilities of Prison Vouchers, 72 Ohio St. L.J. 983, 1018 (2011). The problem with the Shomrim may stem from their “fusion” of “united civic and religious authority.” 124Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 696–97 (1994) (plurality opinion). The answer turns on whether the Shomrim receive this power because of their religion. The Supreme Court’s reasoning in Board of Education of Kiryas Joel Village School District v. Grumet provides some guidance.

In Kiryas Joel, the Supreme Court applied the impermissible delegation framework from Larkin and held the drawing of school districting lines around an insular Hasidic community unconstitutional. Of particular concern to the Court was a lack of neutrality on behalf of the legislature. 125Id. at 702 (majority opinion). The Hasidic community used its power as a voting bloc to obtain public special education services for its children in the segregated atmosphere preferred by its tradition. 126Id. Delegation was not facially suspect and was not made in terms of the Hasidic religion, but rather as the village of Kiryas Joel. 127Id. at 699 (plurality opinion). However, the Kiryas Joel district was created around and for the Hasidic group, and thus delegated power to “a group defined by its character as a religious community.” 128Id. at 696. This created, illegally, “a space in which they can hide from the general American constitutional framework and thereby protect their beliefs, practices, families, and children.” Shauna Van Praagh, Changing the Lens: Locating Religious Communities Within U.S. and Canadian Families and Constitutions, 15 Ariz. J. Int’l & Comp. L. 125, 132 (1998). The problem lay in the “identification . . . of the group to exercise civil authority in terms not expressly religious.” 129Kiryas Joel, 512 U.S. at 699 (plurality opinion). Ultimately, a plurality of the Court found the legislature delegated power purposefully on the basis of religion, rather than incidental to their religious identities. 130Id. at 699–701. In reaching this conclusion, the plurality looked beyond the text of the statute, finding that legislative history explained the true creation of the school district. Id.

Like the school board in Kiryas Joel, the Shomrim are part of a “united civic and religious authority” 131Id. at 697. where their public lives are inseparable from their religion. Yet it is not clear that a religious purpose is the motivation behind the power given to the Shomrim, or that they are truly delegated any power. The police may simply view them as extra hands to perform their police work. Ultimately, Kiryas Joel highlights an important facet of the Shomrim—their status as members of a cohesive sect that excludes outsiders. Religious groups that are able to employ government power on their behalf, to the exclusion of others, should be viewed as suspect. 132See 2 Greenawalt, supra note 13, at 234. However, a stronger argument lies in the Shomrim as recipients of government aid. Special privileges should not be afforded to small communities of particular religions. 133Id. at 235; see also id. at 234 (noting “it is highly doubtful whether members of a religion should be able to use government to promote their religion by excluding outsiders, if they have no plan for a close integrated social life, only a wish not to live near nonadherents”).

B. The Lemon Test

Government aid provided to the Shomrim may violate the Establishment Clause because the aid could have a primary effect of advancing religion. This section assesses this claim with the factors articulated in Lemon v. Kurtzman 134403 U.S. 602 (1971). The original, three-pronged Lemon test provided: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion.’” Id. at 612–13 (citation omitted). and modified in Agostini v. Felton. 135521 U.S. 203 (1997). In Agostini, the Court enveloped the third prong, entanglement, under the second prong “as an aspect of the inquiry into a statute’s effect.” Id. at 233. The test inquires as to (1) “whether the government acted with the purpose of advancing or inhibiting religion”; and (2) “whether the aid has the ‘effect’ of advancing or inhibiting religion.” 136Id. at 222–23.Lemon is regarded as a guideline rather than a precise limit. 137See 2 Greenawalt, supra note 13, at 160 (“Lemon’s day as a complete test has already passed; but that does not mean its various elements are irrelevant.” (footnote omitted)). Although approaches to Establishment Clause litigation may vary, the Lemon test is used here because “cases decided under Lemon are treated as authoritative,” and other approaches “are best understood either as versions of or alternatives to Lemon as a whole, or to its various components.” Id. at 161. Overall, the government must not appear to promote non-neutrality among religions. Of course, government neutrality in this case—equal funding, perhaps, to all religions—would cure the endorsement problems noted above.

1. Secular Purpose

The first prong of Lemon, a secular legislative purpose, is typically easy to pass. All that is required for the first prong is a substantial secular purpose, which may be in addition to a religious purpose. 138Id. at 161. However, it is possible for the government to have a “secret” or “sham” purpose beyond the stated purpose. 139See, e.g., McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 860–61, 864 (2005). A “secret” motive may be so secret that an objective observer does not see its impermissible purpose. In such a case, this does not cause the law to fail the purpose prong. Additionally, for “secret” motives, the Court in McCreary County advocated a “wait and see” approach as to whether the action actually did advance religion. Id. at 863. A primary secular purpose of funding the Shomrim may be improving crime control. Although there is possibly also a religious purpose—promoting and insulating the Hasidic sects—this does not detract from the Shomrim’s significant secular purpose. 140See 2 Greenawalt, supra note 13, at 175 (noting that “improper effects may also flow from acceptable purposes”).

It is possible for the Shomrim to have a secular purpose but still fail the other prong of the Lemon test when the aid has the primary effect of advancing religion. Failing any one of the prongs renders government action unconstitutional under the Establishment Clause. 141Erwin Chemerinsky, Constitutional Law: Principles and Policies 1202 (3d ed. 2006). The rest of this section turns to the second prong, considered the “most significant part of the entire test . . . . [where] [m]ost important cases [have been] resolved.” 1422 Greenawalt, supra note 13, at 174.

2. Primary Effect

The second prong is most problematic because aid to the Shomrim may have the principal or primary effect of advancing the Hasidic religion. In Agostini, the Court provided three primary criteria to evaluate whether government aid or action has the effect of advancing religion: (1) government indoctrination or endorsement; 143Because Agostini focused on school funding, where indoctrination is more relevant, the proceeding analysis will focus on endorsement. (2) recipients of aid defined by reference to religion; and (3) creation of an excessive entanglement. 144521 U.S. 203, 234 (1997).

An impermissible advancement of religion may occur when a state directly funds a religious program, or where there is a close identification between the state and the religious denomination. 145Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373, 389 (1985), overruled by Agostini, 521 U.S. 203. Courts look to whether the government action can be seen as suggesting a symbolic endorsement, sending the message that the government endorses or evinces a particular preference for a religion or practice. 146See Chemerinsky, supra note 141, at 1204.

The Shomrim highlight the problem of government endorsement of a particular group. If the Shomrim racially and even religiously discriminate, the government should not be seen as endorsing such a practice by funding and working with the religious group. Here again the focus must be on whether the government itself is seen as advancing religion through its activities and influence. 147See id. at 1205. In Parents’ Ass’n of P.S. 16 v. Quinones, female Hasidic students were taught Yiddish in public school classrooms only they could use. 148803 F.2d 1235 (2d Cir. 1986). The Second Circuit found the government’s support could be deemed symbolic endorsement of the Hasidic sect’s “inherently divisive” separatism. 149Id. at 1241. In Bollenbach v. Board of Education of Monroe–Woodbury Central School District, another case involving the same Hasidic group in Kiryas Joel, the school district promoted male bus drivers with lesser seniority over a group of female bus drivers in order to accommodate the separatist tenets of the Hasidic sect. 150Bollenbach v. Bd. of Educ. of Monroe–Woodbury Cent. Sch. Dist., 659 F. Supp. 1450 (S.D.N.Y. 1987). The court held the accommodation demonstrated symbolic endorsement of the discriminatory practice, which had the primary effect of advancing religion. 151Id. at 1475.

Direct aid received by the Shomrim may pose Establishment Clause problems because the aid gives the appearance of government endorsement. Endorsement turns on whether funding results from the private individual’s decision making, or through state decision making. 152Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 10 (1993). A direct subsidy or “unrestricted cash payments” 153Freedom from Religion Found., Inc. v. Bugher, 249 F.3d 606, 612 (7th Cir. 2001). to organizations or persons who inculcate religious beliefs may be seen as government indoctrination, thus advancing religion. 154See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 842 (1995). In contrast, indirect aid does not pose the same problems because government funds flow to the sectarian organizations through the private choice of individuals. 155See Agostini v. Felton, 521 U.S. 203, 225 (1997). However, indirect aid still presents the problem of fungibility—the idea that government aid to one part is support to the whole—because it frees up other money to be spent on religious activities. See Saperstein, supra note 15, at 1384. For example, many school vouchers are held as permissible because the government money reaches the schools “only as a result of the genuinely independent and private choices” of the parents. 156Witters v. Wash. Dep’t of Servs. for the Blind, 474 U.S. 481, 487 (1986).

The Shomrim’s receipt of direct subsidies presents a strong argument for endorsement, and thus an impermissible advancement of religion. The Shomrim’s existence and practice is founded on their intent to live an insular life. The government aid, without which the Shomrim would not be able to function, has the primary effect of endorsing and advancing this purpose premised on exclusion. As discussed earlier, aid to the Shomrim may be seen as advancing the Hasidic religion because of the “united civic and religious authority” represented in the insular Hasidic sects. 157See Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 697 (1994) (plurality opinion); see also supra Part II.A.

Because the Shomrim do not receive their money through criteria that identify beneficiaries according to religion, the second “primary effect” consideration is not at issue. Aid that is allocated on a neutral basis, rather than by definition of a particular religion, does not favor religion. 158See Agostini, 521 U.S. at 231–32. When aid is not based on neutral criteria, there may be financial incentive to indoctrinate. 159Id. at 231. While there is not a great deal of information regarding the availability of the aid received by the Shomrim to other religions, it does not appear that the Shomrim receive money on the basis of religion. Of course, like the town in Kiryas Joel, there is an argument that the Shomrim are part and parcel of the Hasidic religion. However, lacking evidence to the contrary a court would likely presume the aid received by the Shomrim would be available to all religions.

It is possible that aid to the Shomrim violates the Establishment Clause because it fosters an excessive entanglement. In Agostini, the Supreme Court identified a few factors indicative of an excessive entanglement, including continued monitoring, administrative entanglement, and the danger of increased “political divisiveness.” 160See id. at 233–34 (internal quotation marks omitted); see also 6 Rotunda & Nowak, supra note 107, at 113. Administrative entanglement may result from the extra safeguards, such as monitoring, that are required to keep religion separate. 161See Lemon v. Kurtzman, 403 U.S. 602, 619 (1971) (warning that “a comprehensive, discriminating, and continuing state surveillance” might be necessary to ensure the First Amendment is respected). Political divisiveness is concerned with the possibility of “‘continuing political strife’”—the “serious potential for divisive conflict over the issue of aid to religion.” 162Meek v. Pittenger, 421 U.S. 349, 372 (1975) (quoting Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 794 (1973)), overruled by Mitchell v. Helms, 530 U.S. 793 (2000).

It should be noted that the entanglement must truly be excessive, as entanglement can usually be overcome by less than pervasive monitoring. 163Mitchell, 530 U.S. at 861–62 (O’Connor, J., concurring in the judgment) (noting that “pervasive monitoring” is not necessary for “constitutionally sufficient” safeguards); see also Volokh, supra note 123, at 993 n.59 (noting self-auditing and occasional monitoring visits would be sufficient monitoring, but would not create excessive entanglement). Additionally, Volokh asserted “the Establishment Clause concern isn’t pervasive monitoring as such, but pervasive monitoring that leads to entanglement with religion.” Id. at 994 n.59. For example, impermissible entanglement results when the government pays parochial teacher salaries. 164See Agostini, 521 U.S. 203. Such aid would require excessive, continuing government entanglement with religion in order to monitor and ensure teachers were not impermissibly indoctrinating or endorsing religion. 165Chemerinsky, supra note 141, at 1206. In Bollenbach, providing male bus drivers to accommodate the Hasidic community would have resulted in excessive entanglement. 166Bollenbach v. Bd. of Educ. of Monroe–Woodbury Cent. Sch. Dist., 659 F. Supp. 1450, 1465–66 (S.D.N.Y. 1987). Administrative entanglement would have resulted from the “substantial increase in the number of administrative contacts” and continuing consultations on implementation problems. 167Id. Further, political division had already ensued in Bollenbach, illustrated by the national attention the bus controversy attained. 168Id. at 1466. Conversely, excessive entanglement was not found in the sale of public land to a Hasidic sect in Southside Fair Housing Committee v. City of New York. 169750 F. Supp. 575, 581 (E.D.N.Y. 1990), aff’d, 928 F.2d 1336 (2d Cir. 1991). While the plaintiffs represented an exclusionary community, the completed sale foreclosed the potential for continuing government interaction and entanglement. 170Id.

With the Shomrim, a court might be able to find that the administrative safeguards and diversions are necessary, as well as that any resulting political division reaches a constitutionally impermissible level. Like the school district in Bollenbach, the Shomrim would require ongoing monitoring to ensure funds are diverted to nonreligious uses; therefore pervasive monitoring would be required. 171Note that this ongoing monitoring is different from the case in another Hasidic neighborhood, where ongoing monitoring was not necessary because it was a closed sale. See Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756 (1973); see also supra note 105 and accompanying text. Criticism of the Shomrim’s actions and their unparalleled level of government funding already exists, and lately such criticism has received more attention. 172See supra Part I. The strongest argument lies in the speculation that the Shomrim receive the amount of funding they do because of their existence as a voting bloc. 173However, some political division exists within the Hasidic sects—one rival Shomrim group has gone so far as to sue the City of New York for its relationship with another Shomrim group. See Amended Complaint and Demand for Jury Trial, Crown Heights Shomrim Volunteer Safety Patrol, Inc. v. City of N.Y., No. 11 CV 0329 (KAM)(JMA) (E.D.N.Y. Sept. 6, 2011). Although the case alleges the City of New York’s work with the Shmira transforms the Shmira into state actors, the argument is applicable here as clear political strife results from perceived unequal/non-neutral government funding. See also Shaer, supra note 6, at 65–66. However, the Supreme Court’s recent Establishment Clause jurisprudence complicates the result. Because the Supreme Court has increasingly approved of more forms of aid 174See Witte, supra note 111, at 186 (“The emerging trend . . . is that the establishment clause . . . is becoming weaker and therefore less attractive to religious liberty litigants.”). and retreated from strict rules governing aid, an Establishment Clause argument, while possible, may not be the strongest argument.

Although the Establishment Clause argument would bar the excessive funding of the Shomrim, ultimately it would not regulate their discriminatory actions. In the case of the Shomrim, this issue is best explored in the next Part discussing state action. State action provides a stronger argument and a better recourse to solve the aforementioned problem of bias crimes and discriminatory policing. The following Part argues the Shomrim are state actors.

III. The Shomrim Qualify as State Actors: When the “Eyes and Ears” Become the State

Because the Shomrim have close ties to the state and perform a policing function, they should be considered state actors. While the Constitution and its amendments protect certain individual rights and liberties, most provisions apply only to actions fairly considered to be those of the government. 1752 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance & Procedure 1053 (5th ed. 2012). In the case of the Shomrim, whether constitutional limitations apply depends on whether there are sufficient contacts with and embodiments of the government to transform otherwise private actors into “state actors.” 176See id. at 1056–58. If the Shomrim are private actors and there is no state action, the Shomrim’s exclusion of others on the basis of their race or religion does not violate the Equal Protection Clause of the Fourteenth Amendment. 177See id. at 1058.

When otherwise private conduct takes on a public character and has interrelated, sufficient contacts with the government, the action and its subsequent liability may be reached through the state action doctrine. The Shomrim go beyond merely acting as “eyes and ears” of the NYPD, working closely with the government in aid of a public function. 178See Kilgannon, supra note 2 (noting that a police spokesman has called the Shomrim the “‘eyes and ears’” for the police); News Release, N.Y. State Senator Eric Adams, NYS Senator Eric Adams Joins Other Elected Officials and Community Leaders to Present Citations of Merit for Hatzolah and Shomrim (Jan. 24, 2008), available at http://www.nysenate.gov/news/nys-senator-eric-adams-joins-other-elected-officials-and-community-leaders-present-citations-me (noting that the Shomrim “serv[e] as vigilant eyes and ears”). This transforms private conduct into state action. The discriminatory nature of the Shomrim’s conduct further strengthens the likelihood that a court would find state action. Consideration as state actors would implicate both constitutional liability and government liability for the Shomrim.

First, this Part analyzes the Shomrim under two tests for state action, as performing a public function, and having a close nexus with the government. Then, this Part incorporates the theory of substantive legal claims as a decisive factor in finding state action, and it finds that the discriminatory nature of the Shomrim render them more likely to be considered state actors. Finally, this Part places the Shomrim in the context of privatization and considers the perverse incentives of state action.

A. The State Action Doctrine

Proving the Shomrim are state actors would provide a vehicle for constitutional liability. 179The Fourteenth Amendment made the Constitution applicable to state and municipal actors. U.S. Const. amend. XIV, § 1 (“nor shall any State” (emphasis added)). Early on, in the Civil Rights Cases, 109 U.S. 3, 11 (1883), the Supreme Court clarified that the Constitution’s protections were not intended to apply to private actors, and the Supreme Court more recently affirmed that Congress cannot regulate private conduct using Section 5 of the Fourteenth Amendment. United States v. Morrison, 529 U.S. 598, 621 (2000). However, establishing that a private actor is a state actor is rarely easy. Academics, attorneys, and even Supreme Court Justices acknowledge that state action is a “conceptual disaster area,” 180Charles L. Black, Jr., The Supreme Court, 1966 Term—Foreword: “State Action,” Equal Protection, and California’s Proposition 14, 81 Harv. L. Rev. 69, 95 (1967). where the caselaw distinguishing public and private spheres “[has] not been a model of consistency.” 181Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 378 (1995) (quoting Edmonson v. Leesville Concrete Co., 500 U.S. 614, 632 (1991) (O’Connor, J., dissenting)) (internal quotation marks omitted).

When private actors wield government power, private actions fairly attributable to the government are treated as state action and are therefore subject to constitutional constraints. 182See Chemerinsky, supra note 141, at 507–39. State action works both to provide constitutional restraint on those acting as the government, as well as to detach liability for actions that are purely private and individual. 183See Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982). Government accountability, along with an individual’s rights, is of primary concern when a private actor is exercising government power. 184See Metzger, supra note 22, at 1370–73.

Analysis of state action 185This is the same test for “color of law” under § 1983. Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 n.2 (2001) (“If a defendant’s conduct satisfies the state-action requirement of the Fourteenth Amendment, the conduct also constitutes action ‘under color of state law’ for § 1983 purposes.” (quoting Lugar, 457 U.S. at 935)). begins with the general premise that “the conduct allegedly causing the deprivation of a federal right [is] fairly attributable to the State.” 186Lugar, 457 U.S. at 937. In this case, the question is whether the Shomrim’s actions are fairly attributable to the state. If they are, then their conduct would be deemed to cause a deprivation under both the Equal Protection Clause and the substantive due process provision of the Fourteenth Amendment. 187The Shomrim violate the Equal Protection Clause because their discriminatory treatment of outsiders violates an individual’s right to equal treatment by the state. U.S. Const. amend. XIV, § 1 (“nor deny to any person within its jurisdiction the equal protection of the laws”). Although it is beyond the scope of this Comment, a court would consider whether the action was done through a classification, and whether the action met the appropriate level of scrutiny (in this case, likely strict scrutiny because of race). There is a violation of substantive due process because the Shomrim’s actions infringe on an individual’s fundamental right to be free from discrimination. See id. (“nor shall any State deprive any person of life, liberty, or property, without due process of law”). To resolve the question of whether a party is a state actor, courts apply this general principle along with various tests encompassing factors articulated by the Supreme Court. 188Cases often involve discussions of and fall under multiple different tests or standards. Chemerinsky, supra note 141, at 518. Chemerinsky also noted the Court is not always clear on which test it is using and discussing. Id.; see also Metzger, supra note 22, at 1412–13 (describing the factors considered and asserting the Court sometimes adopts formalistic and distinct “tests”). In the following sections, this Comment addresses state action by applying the two main tests used—public function and close nexus. 189For the purposes of this analysis, ensconced under close nexus includes what some courts and scholars may otherwise call the “joint action” and “symbiotic relationship” tests. These tests demonstrate the Shomrim are state actors who inflict injuries that are “aggravated in a unique way by the incidents of governmental authority.” 190Edmonson v. Leesville Concrete Co., 500 U.S. 614, 615 (1991).

Thus, the Shomrim provide a novel and important application of the state action doctrine in the realm of privatization. 191A case is currently pending in the Eastern District of New York against the City of New York and one of the Shomrim groups under a state action theory. See Amended Complaint and Demand for Jury Trial, Crown Heights Shomrim Volunteer Safety Patrol, Inc. v. City of N.Y., No. 11 CV 0329 (KAM)(JMA) (E.D.N.Y. Sept. 6, 2011). The case was filed by a rival Shomrim group. For an interesting history of the Shomrim–Shmira rivalry in Crown Heights, see Shaer, supra note 6, at 101–11, 116–17. Although scholars have confronted the question of whether private police should be considered state actors, 192See, e.g., Elizabeth E. Joh, Conceptualizing the Private Police, 2005 Utah L. Rev. 573. few have confronted whether community-watch groups may be state actors, 193Jack Wenik brought up the question of auxiliary police and block-watcher liability in a footnote. See Jack Wenik, Note, Forcing the Bystander to Get Involved: A Case for a Statute Requiring Witnesses to Report Crime, 94 Yale L.J. 1787, 1797 n.77 (1985). However, with the highly publicized murder and trial for the killing of Trayvon Martin, an African-American teenager by a neighborhood-watch member on patrol, questioning the liability of neighborhood-watch-style policing may be on the rise. See Sharon Finegan, Watching the Watchers: The Growing Privatization of Criminal Law Enforcement and the Need for Limits on Neighborhood Watch Associations, 8 U. Mass. L. Rev. 88 (2013). and most assume they are simply private actors. 194But see M. Rhead Enion, Note, Constitutional Limits on Private Policing and the State’s Allocation of Force, 59 Duke L.J. 519, 553 (2009). Enion argued certain “private police” forces, including residential security guards, should be considered state actors because they act as “arms of the state,” responding to a “public demand for order and security” by supplying force. Id. Even if the Shomrim are deemed state actors, other similarly licensed community-watch organizations are not necessarily rendered state actors.

The Supreme Court has repeatedly acknowledged that “to fashion and apply a precise formula for recognition of state responsibility under the Equal Protection Clause is an ‘impossible task’ which ‘[t]his Court has never attempted.’” 195Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961) (quoting Kotch v. Bd. of River Port Pilot Comm’rs, 330 U.S. 552, 556 (1947)). As each situation and application is unique, “[o]nly by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.” 196Id. While the lack of clear principles and bright-line tests renders an analysis of state action complicated, it is not an insurmountable task. This section considers the cases where the courts have found state action to explain why the Shomrim are state actors.

1. The Shomrim Perform a Public Function

Because the Shomrim perform police services, one might think the Shomrim perform a public function. For state action under the public function test, the private entity must exercise “powers traditionally exclusively reserved to the State.” 197Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974). The Supreme Court has found state action with a company-owned town, 198Marsh v. Alabama, 326 U.S. 501 (1946). a public park, 199Evans v. Newton, 382 U.S. 296 (1966). and private parties carrying out primary elections. 200See, e.g., Smith v. Allwright, 321 U.S. 649 (1944). See generally 1 Martin A. Schwartz, Section 1983 Litigation: Claims & Defenses § 5.14(A) (4th ed. Supp. 2011).

State action exists where an entity performing a public function works for the purpose of “maintaining order and controlling crime . . . paradigmatic governmental functions.” 201David A. Sklansky, The Private Police, 46 UCLA L. Rev. 1165, 1168 (1999). For example, in Evans v. Newton, the Supreme Court held that the transfer of a park from the public to private sector did not dissolve its “tradition of municipal control” and “public character.” 202Evans, 382 U.S. at 301, 302. A basic government function is protecting the security of the individual and property, 203Sklansky, supra note 201, at 1188. something the Shomrim work fervently to protect. Although policing in general has never been entirely public, 204Id. at 1225. If taken to its logical extreme, even the public police would not be considered government actors because the police were originally private. 1 Schwartz, supra note 200, § 5.14(A). today many see the maintenance of order and crime control as “inherently public functions,” rightly assumed by the government or its actors. 205Sklansky, supra note 201, at 1194. Sklansky asserted “if policing is not a public function, it is hard to imagine that much else is,” and asserted policing as a good test case for the vitality of the public function doctrine. Id. at 1259. He also argued the state action doctrine proves unable to distinguish private police from either public law enforcement or private citizenry. Id. at 1229. While Justice Rehnquist suggested in National League of Cities v. Usery that police protection is a “traditional government function[],” 206426 U.S. 833, 852 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985). it is unclear and unlikely that police power is “traditionally reserved” exclusively to the state. 2072 Rotunda & Nowak, supra note 175, § 16.2. But see Evans, 382 U.S. at 302 (comparing a park that had been transferred from public to private control, to a “police department that traditionally serves the community”).

The Supreme Court addressed the constitutional status of the private police just once, in 1964. In Griffin v. Maryland, the Supreme Court held a specially deputized, private security guard was a state actor when he “purported to exercise the authority of a deputy sheriff” and publicly enforced the park’s private racial segregation policy. 208378 U.S. 130, 135–36 (1964). It is not entirely clear how much weight this case still holds. The Court later “express[ed] no view” on whether a state could delegate police functions to private parties, thus “avoid[ing] the strictures of the Fourteenth Amendment.” Flagg Bros. v. Brooks, 436 U.S. 149, 163–64 (1978). But see id. at 172 n.8 (Stevens, J., dissenting) (“[I]t is clear that the maintenance of a police force is a unique sovereign function, and the delegation of police power to a private party will entail state action.”). Typically, the lower federal courts have largely considered private police to be state actors only when they are officially deputized. 209Sklansky, supra note 201, at 1229–30.

Private police are more likely to be deemed state actors when they look and function like the police. 210See Evans, 382 U.S. at 302 (looking at the character and purpose of a park as municipal, despite its private ownership); cf. Griffin, 378 U.S. at 135 (noting the guard was a state actor because he “purported to exercise . . . authority” when he arrested and instituted prosecutions against trespassers). For instance, the auxiliary police are generally considered state actors, particularly because of their appearance of authority similar to the regular police. 211See, e.g., People v. Luciani, 466 N.Y.S.2d 638 (Sup. Ct. 1983); Peter J. Gardner, Comment, Arrest and Search Powers of Special Police in Pennsylvania: Do Your Constitutional Rights Change Depending on the Officer’s Uniform?, 59 Temp. L.Q. 497 (1986). The auxiliary police function as unarmed, uniformed patrols that assist the police and operate police-style vehicles. 212N.Y. Auxiliary Police Dep’t, Auxiliary Police Program Overview 10 (2008). Uniforms and similar patrol cars provide auxiliary police with “the symbolic authority of the public police.” 213Sklanksy, supra note 201, at 1228. Auxiliary police volunteers are trained by the police to provide additional “eyes and ears” to the police, assisting with patrol of residential and commercial areas, at community events, traffic control, and crime prevention. 214Careers—Auxiliary Police, N.Y. Police Department, http://www.nyc.gov/html/nypd/html/careers/auxiliary_police.shtml (last visited June 18, 2013). While on duty, auxiliary police are considered city employees and receive workers compensation for on-duty related injuries. N.Y. Auxiliary Police Dep’t, supra note 212, at 18; N.Y.C. Admin. Code § 14–147 (2013), available at http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=$$ADC14-147$$@TXADC014-147+&LIST=LAW+&BROWSER=BROWSER+&TOKEN=53422701+&TARGET=VIEW.

Like the auxiliary police, the Shomrim are also unarmed, uniformed, and function in a similar fashion. Some Shomrim members are even members of the NYPD auxiliary force. 215Shaer, supra note 6, at 73. The Shomrim emit an appearance of authority, similar to the auxiliary police, and operate police-style vehicles. 216See supra notes 57–58; see also N.Y. Auxiliary Police Dep’t, supra note 212, at 10. Driving such analogous patrol cars likely causes others to confuse the Shomrim with police.

The Shomrim look, act, and consider themselves a part of the police—and frequently so do the police. 217Uriel Heilman, Policing the Hassidim, Jerusalem Post, June 5, 2003, at 8 (quoting a commander at the 66th precinct as saying “‘I look at the Shomrim like they’re the NYPD’”). Articles are replete with examples and statements of the “close relationship” that exists between the NYPD and the Shomrim. 218See, e.g., Cate Doty, New Yorkers Oppose Site of Islamic Center, Poll Finds, N.Y. Times City Room (Sept. 3, 2010, 9:19 AM), http://cityroom.blogs.nytimes.com/2010/09/03/new-yorkers-oppose-site-of-islamic-center-poll-finds/ (noting the longtime “close relationship” between the Shomrim and the local precinct). The Shomrim sometimes work directly with the police 219See, e.g., supra notes 62–68 and accompanying text. and are similar to the police in their uniforms, patrol cars, 220See supra notes 57–58. decals, and logos. 221See supra notes 50–58 and accompanying text (describing and depicting the visual similarities between the Shomrim and the NYPD). Officials recognize the Shomrim for their contribution to the suppression of crime and increased safety, 222Pinto, supra note 8; cf. On Roshhashana, Baltimore County Police Express Gratitude, Balt. Sun, Sept. 10, 2010, at A4 (including the Baltimore police chief crediting Shomrim for their work and contribution to the decline in crime). While this report refers to the Shomrim in Baltimore, it is likely parallel in New York and other areas where the Shomrim patrol. and the officials thank them for their work “in conjunction with [the] NYPD to promote a secure neighborhood environment.” 223News Release, N.Y. State Senator Eric Adams, supra note 178. One local government official promulgates the Shomrim’s number on a flyer of emergency numbers. 224See, e.g., Assemblymember Jim Brennan’s Important Phone Numbers & Websites, http://assembly.state.ny.us/member_files/045/20110830/index.pdf (last visited June 18, 2013). Notably, one police lieutenant stated police patrols are increased on both the weekly Sabbath and holy days, 225Ari L. Goldman, The Talk of Williamsburg; Hasidic Enclave: A Step Back to Older Values, N.Y. Times, July 7, 1986, at B1 (noting the NYPD increases patrols on these days because “the Hasidim are likely to spend most of the day in synagogues or . . . out of town”). days when the Shomrim do not patrol. 226While the Shomrim do not patrol on the Sabbath, they do have a twenty-four-hour hotline. These actions suggest the Shomrim perform part of the police’s “public function.”

The Shomrim work closer with the police than typical private police, and they have the same agenda as the police in the protection of the community. One argument against holding the private police as state actors distinguishes the private police from state police because of divergent goals. 227See Joh, supra note 192. While the state may primarily be concerned with crime prevention, private policing is client driven and focused on specific loss prevention. 228Id. at 587. Thus, private policing is not actually fulfilling the “essential” public function of the police. This policy rationale does not apply to the Shomrim or groups like the auxiliary police, who supplant the police and patrol with the analogous aim of preventing crime. 229Although there is a valid argument that the Shomrim are client-driven, they are not looking at loss prevention, but crime prevention in aid of the state.

State action under the public function test is frequently found in conjunction with some of the other indicia of state action. 230See Chemerinsky, supra note 141. The argument for the Shomrim as state actors is particularly strong when considering their public function as an additional factor in their close nexus to the state. Thus, the next section examines the Shomrim under the close nexus test.

2. The Shomrim Have a Close Nexus with the State

While the Shomrim are likely state actors because they perform a public function, an even stronger argument for finding state action lies in the Shomrim’s close nexus with the government. Whether a private party is a state actor depends on the relationship between the government and the private party. Although the Supreme Court has eschewed setting a bright-line test, a “close nexus” resulting from contacts and a close connection with the government may render the actions of a private party state action. 231See generally 2 Rotunda & Nowak, supra note 175, at 1087–101. The Supreme Court provided the following test for state action in Brentwood Academy v. Tennessee Secondary School Athletic Ass’n: “[S]tate action may be found if . . . there is such a ‘close nexus between the State and the challenged action’ that seemingly private behavior ‘may be fairly treated as that of the State itself.’” 232531 U.S. 288, 295 (2001) (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)). Primarily, state action assesses whether there is government animus behind otherwise “private” conduct.

In deciphering “[w]hat is fairly attributable,” the Supreme Court has identified a “host of facts” bearing on a “close nexus” of state action. 233Id. at 295–96. Although the “close nexus” test 234Although the names for tests differ, each considers the same set of facts and circumstances in deciphering state action. is far from black and white, certain factors can be ascertained from the Court’s jurisprudence. 235Brentwood, 531 U.S. at 295–96. Each case is necessarily contingent on the particular facts and circumstances presented in order to give proper significance to the “nonobvious involvement of the State.” 236Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961). The Shomrim’s performance of a public function 237See supra Part III.A.1. is one factor weighing in favor of state action. This section proceeds by discussing some of the other factors that have resulted in an attribution of state action: government entwinement with control or management, coercive power and significant encouragement, and willful participation in joint activity with the state. 238Brentwood, 531 U.S. at 296.

a. Entwinement

Private action may be fairly attributed to the state when government is “entwined in [its] management or control.” 239Id. at 296 (alteration in original) (quoting Evans v. Newton, 382 U.S. 296, 301 (1966)). In Brentwood Academy, the Supreme Court held state action existed because of the “pervasive entwinement of public institutions and public officials” in an interscholastic athletic association. 240Id. at 298. The state had oversight of the association’s rules and regulations, and the organization’s officials were largely public school officials. 241Id. at 299–301. The state board acknowledged the association’s official character “by winks and nods.” 242Id. at 301. The state board’s use of the program for public school education requirements, as well as the review and approval of the association’s rules and regulations, confirmed a close relationship. 243Id. This may be similar to what has been termed a “symbiotic relationship” in Burton v. Wilmington Parking Authority, 365 U.S. 715, 725 (1961). See 2 Rotunda & Nowak, supra note 175, § 16.4(b). While Burton is now rarely regarded as good law, it demonstrated another close relationship between the state and a private actor.

Courts also look to whether the benefits obtained from the relationship with the state are unique and indispensable. In Rendell-Baker v. Kohn, the Court found the relationship between the school and the state was no different from the relationship of “many contractors performing services for the government.” 244457 U.S. 830, 843 (1982). Similarly, in Gallagher v. “Neil Young Freedom Concert, the Tenth Circuit held the benefits derived from a government lease to a university were not an “indispensable element[] in the University’s financial success.” 24549 F.3d 1442, 1453 (10th Cir. 1995).

Like the association in Brentwood, the Shomrim’s actions are entwined with the state. The close relationship between the Shomrim and the NYPD is frequently acknowledged. 246E.g., Pinto, supra note 8, at 10. Without this close relationship and the resulting mutual benefits, there would be no recognizable Shomrim. 247See Brentwood, 531 U.S. at 300 (“There would be no recognizable Association, legal or tangible, without the public school officials . . . .”). Acting as additional police, the NYPD is able to lessen its load by relying on the Shomrim to fill the gap and do part of the work within their neighborhoods. 248See supra Part I. As mentioned previously, the police rely on the Shomrim to such an extent that they must increase police patrols in Jewish areas on days the Shomrim do not patrol. 249Goldman, supra note 225. The Shomrim do not patrol on Shabbat (Friday evenings and Saturdays) and other Jewish holidays. See id. In some cases, police may even delegate duties to the Shomrim. 250Cf. Justin George, For 30 Years, Watching Out for Northwest, Balt. Sun, Nov. 30, 2012, at A1 (referring to the Shomrim in Baltimore).

The Shomrim and the state’s close relationship extend even further. Not only are some members involved with the NYPD as auxiliary police officers and through the COP (Civilian Observation Patrol) programs, the Shomrim also undergo training with the NYPD. 251See Shaer, supra note 6, at 165–66; see also supra text accompanying note 66. The NYPD has specific community liaisons well versed in and understanding of the particular Hasidic culture. 252See Shaer, supra note 6, at 32. This relationship is specific to the Shomrim, as “in no other neighborhood do the police enjoy as positive a relationship with the people they protect.” 253Heilman, supra note 217. Additionally, the patrol members often aid the state by offering eyewitness or expert testimony in criminal cases, free of charge. Id. The NYPD is “sensitive” to the needs of the Hasidic community, “continually looking out for the community in every respect.” 254Id. One journalist asserted that the imbalance of power found in these Hasidic neighborhoods resulted from their “unparalleled unity and ability to deliver a bloc vote [enabling] the Hasidim to wield tremendous political power in the local arena and to garner a disproportionate percentage of local services.” 255Elizabeth Kadetsky, Turf Wars in Williamsburg: My Neighbor, My Enemy, 253 Nation 839, 840 (1991). Many sources cite the voting power of the Hasidic community as a reason why the police frequently turn a blind eye to some of the Shomrim’s transgressions. 256Pinto, supra note 8, at 13. The benefits inured through the government are an indispensable part of the Shomrim’s actions.

b. Coercion and Encouragement

The Supreme Court provided that “a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” 257Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) (emphasis added). Of course, mere funding is insufficient to find state action where coercion or encouragement is absent, 258See id. (deciding that funding and state regulations did not turn nursing home decision into state action); Rendell-Baker v. Kohn, 457 U.S. 830 (1982) (finding no state action in discharge of employee despite private school’s state funding). as is mere licensing. 259See Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972) (finding the private club’s racial discrimination was not state action due to neutral licensing). For example, in Moose Lodge No. 107 v. Irvis, the Supreme Court held state action did not exist where the state licensed a private club that exercised racially restrictive policies. 260Id. at 179. The state’s action in Moose Lodge was that of a neutral licensing board, and the discriminatory conduct was not encouraged by the state. 261Id. at 178–79. However, the Supreme Court’s opinion in Moose Lodge focused on the fact that it could perceive little real harm done by the racially restrictive club. But cf. infra Part III.B. Even pervasive government regulation of a privately run program is not enough to turn private conduct into state action without government coercion or encouragement. Therefore, while the Shomrim are licensed 262Kilgannon, supra note 2. and regulated 263See Div. of Licensing Servs., N.Y. Dep’t of State, Private Investigators, Bail Enforcement Agents, Watch, Guard or Patrol Agencies and Security Guards Licensing Law (2011). by the state, this does not by itself indicate state action.

Thus, analysis hinges on the animus behind the action—was the government coercing the action or providing significant encouragement? If the answer is yes, then there is more reason to find state action because the government seemingly sanctioned the action. This is an important distinction, especially in situations regarding government funding. For instance, in Rendell-Baker v. Kohn, despite significant funding from the state, the Supreme Court held state action did not exist when a private school discharged an employee over a dispute. 264Rendell-Baker v. Kohn, 457 U.S. 830, 841–43 (1982). The state could not be responsible for the private decision because the school’s choices regarding employment practices were not compelled or even influenced by the state’s funding or state regulation. 265Id. at 841–42. But see id. at 849–50 (Marshall, J., dissenting) (“When an entity is not only heavily regulated and funded by the State, but also provides a service that the State is required to provide, there is a very close nexus with the State. Under these circumstances, it is entirely appropriate to treat the entity as an arm of the State.”). The funding and regulation in no way changed the “relationship between the school and its teachers.” 266Id. at 841 (majority opinion).

In contrast to generalized government aid and services, the allocation of specialized aid or benefits has the potential to imbue the action with government support for discriminatory practices. 267See 2 Rotunda & Nowak, supra note 175, § 16.4(c). Providing aid in a limited and specific fashion has the potential to be seen as the state’s choice to directly aid or support a particular private action. 268See id. In Norwood v. Harrison, the Supreme Court found the provision of free books to students 269The court called the books “tangible aid in the form of textbooks.” Norwood v. Harrison, 413 U.S. 455, 464–65 (1973). attending racially discriminatory schools could be seen as manifesting the state’s choice to encourage discrimination. 270Id. “[T]angible aid” should not “facilitate, reinforce, [or] support private discrimination.” 271Id. at 464, 466. In Gilmore v. City of Montgomery, the Court found the city’s choice to give racially segregated groups exclusive use of public facilities presented a state action problem. 272417 U.S. 556 (1974). In both Norwood and Gilmore, the Supreme Court found the choice could be perceived as belonging to the states. Above all, states cannot “induce, encourage or promote private persons to accomplish what [they are] constitutionally forbidden to accomplish.” 273Norwood, 413 U.S. at 465 (quoting Lee v. Macon Cnty. Bd. of Educ., 267 F. Supp. 458, 475–76 (M.D. Ala. 1967)) (internal quotation marks omitted).

The government’s specific aid and encouragement transforms the Shomrim’s otherwise private actions into state action. The government here may be seen as encouraging, facilitating, and supporting discriminatory actions that would be constitutionally forbidden if performed by the state. Funding is specifically apportioned to the Shomrim and supplemented by donations or purchases from the state. One New York state senator appropriated funds for the purchase of bulletproof vests for additional safety after Shomrim members were shot. 274News Release, N.Y. State Senator Eric Adams, NYS Senator Eric Adams Holds a Press Conference to Donate Bullet Proof Vests to Members of the Boro Park Safety Patrol, in Response to Shooting of Three of the Group’s Members (Sept. 8, 2010), available at http://www.nysenate.gov/press-release/nys-senator-eric-adams-holds-press-conference-donate-bullet-proof-vests-members-boro-p. This suggested the state expected the Shomrim to be in the same dangerous line of duty as the regular police. This evidence should call into question the claim that Shomrim are considered police only for their own community. One would expect enforcing traditional customs—the segregation of women, celebrations of religious holidays, and prayer, to name a few—would rarely necessitate protection from bullets. Considering the history of the Shomrim and their relationship with the NYPD, 275See supra Part I. the police cannot deny their knowledge of the Shomrim’s actions. While one may argue the Shomrim act to further their own ends (keeping their community safe and free from outsiders to their religion), it is hard to argue their actions are not also in some way intended to help law enforcement efforts to keep the community safe.

Unlike the aid in Rendell-Baker, 276457 U.S. 830 (1982). In Rendell-Baker, the Court found there was no state action in the discharge of an employee, despite the private school’s state funding. the Shomrim’s discriminatory actions are influenced by the direct aid and encouragement of the NYPD. The funding encourages the Shomrim to go beyond their community police work and function more like the NYPD. The NYPD explicitly encourages the Shomrim to catch criminals and hold them until the NYPD gets there. If it were not for this encouragement, the Shomrim, who typically avoid the American legal system, would be unlikely to even go to the police.

c. Willful Participant in Joint Activity

State action may also be present where public officials and private actors work together to reach a common objective. In Dennis v. Sparks, the Supreme Court held that state action existed because the defendant was “a willful participant in joint action with the State or its agents.” 277449 U.S. 24, 27−28 (1980). Decisive acts of private parties carried out by a state official may be state action if “jointly engaged with state officials in the prohibited action.” 278Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970) (quoting United States v. Price, 383 U.S. 787, 794 (1966)) (internal quotation marks omitted). For example, a private business may be considered a state actor when an off-duty police officer, working as a security guard, acts on behalf of the business and is perceived by the public as a police officer. 279Griffin v. Maryland, 378 U.S. 130, 135 (1964). Courts have also been more willing to find state action in private police who are deputized or made “special police” and given greater powers of arrest than an ordinary citizen. See, e.g., Hughes v. Meyer, 880 F.2d 967, 972 (7th Cir. 1989) (finding no state action when a Wisconsin Department of Natural Resources conservation warden’s acts were “functionally equivalent to that of any private citizen reporting to the police the details of an alleged criminal act”); United States v. Lima, 424 A.2d 113, 118 (D.C. 1980) (en banc); cf. United States v. McDougald, 350 A.2d 375, 378 (D.C. 1976) (noting “[t]he power of arrest . . . is the sole factor which distinguishes the holder of a special police commission from a private citizen,” but distinguishing the special officer at issue as being motivated by private interests). See generally William E. Ringel, Searches and Seizures, Arrests and Confessions § 2:4 (2012). However, while the Shomrim are not deputized, such a finding is not necessary for state action to exist. For instance, other considerations such as continuing ties to the police may be sufficient to show state action. See id. (noting that a private citizen’s actions in conjunction with police may be construed as state action for purposes of a civil rights action under 42 U.S.C. § 1983). In Wickersham v. City of Columbia, the Eighth Circuit found joint action between a private corporation and the police department converted private action into state action when the police department knowingly agreed to enforce rules that restricted free speech. 280481 F.3d 591, 599 (8th Cir. 2007).

Under the Fourth Amendment, the Shomrim’s actions may be attributed to the state when they act jointly with the police. The Shomrim make a concerted effort with the police; the Shomrim catch alleged criminals, and the police are called to arrest them. 281See supra Part I.B. This joint action may convert the Shomrim into state actors if there is no independent investigation of the alleged criminal. 282See 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 1.8 (5th ed. 2012). Further, when officers make arrests at the behest of private citizens, the lack of an independent evaluation may render the private citizens state actors. 283See Hernandez v. Schwegmann Bros. Giant Supermarkets, 673 F.2d 771, 772 (5th Cir. 1982) (per curiam) (holding that no state authority was conveyed to the private actor because the arresting police officer made an independent “determination of cause to arrest”). The NYPD acknowledges the Shomrim’s propensity to respond immediately to calls or situations, rather than calling and waiting on the police. 284Kilgannon, supra note 39. Police Commissioner Raymond W. Kelly stated a “‘longstanding issue with [the] Shomrim’” was their delay in police notification. Id. Although the extent of the police’s independent investigation is unknown, it seems highly plausible that the NYPD knowingly acquiesces to the Shomrim’s exclusionary actions.

One criminal procedure scholar has suggested certain features of private police that, when performed, ought to subject them to “the commands of the Fourth Amendment.” 285See generally 1 LaFave, supra note 282, § 1.8. Another issue, beyond the scope of this Comment, is whether evidence obtained through private citizens working with the police should be subject to the exclusionary rule. See id. These features include when private police “actually supplant the public police,” “deal regularly with the general public,” and have an interest in criminal convictions. 286Id. The California Supreme Court has held private police to be state actors subject to constitutional limitations due to the “increasing reliance placed upon private security personnel by local law enforcement authorities.” People v. Zelinski, 594 P.2d 1000, 1005 (Cal. 1979) (in bank). The Shomrim are certainly interested in criminal convictions of the criminals they catch. Additionally, as discussed in the previous section, 287See supra Part III.A.1. their similar uniforms, cars, perceived authority, and work in connection to the police may indicate to an observer that they are an arm of the police. 288See supra Part I. There is some indication that the Shomrim seem to impliedly supplant the NYPD in certain areas of Brooklyn, 289See, e.g., Heilman, supra note 217 (quoting a commander at the 66th precinct as saying “‘I look at the Shomrim like they’re the NYPD’”). and they certainly deal daily with the public. 290See supra Part I. Obtaining criminal convictions of those they find breaking the law is an objective; their actions are taken to catch criminals 291Cf. Kilgannon, supra note 39. and they call the police to make arrests. 292For a running count of the Shomrim’s work catching “perps,” see for example, Yeshiva World News, http://www.boroparkscoop.com (last visited June 18, 2013). Aiding their “employer” can only be said to be their community, and therefore the public. While the Shomrim arguably are pursuing private objectives—keeping outsiders from their midst—they are, at the same time, aiding in catching and convicting criminals.

B. An Infringement on Substantive Rights Makes State Action More Likely

State action is even more likely to be found where, as here, the case involves racial discrimination. While this is not the stated law, it is argued in many dissents and scholarly articles. Finding state action may in part depend on a differential analysis for the varying substantive rights. 293See, e.g., Jody Young Jakosa, Parsing Public from Private: The Failure of Differential State Action Analysis, 19 Harv. C.R.-C.L. L. Rev. 193, 208 (1984) (providing a hierarchy of state action standards). Many commentators have alleged that the finding of state action is “inextricably linked to the Court’s view as to whether there is a violation of equal protection.” 294See, e.g., Chemerinsky, supra note 141, at 538. Under a substantive rights approach to state action, competing constitutional values are leveled against one another to weigh which is more important. 295See, e.g., Michael L. Wells, Identifying State Actors in Constitutional Litigation: Reviving the Role of Substantive Context, 26 Cardozo L. Rev. 99, 110 (2004). A weighing of competing values also may aid in explaining why in some situations state action is found where, for example, a person is employed directly by the state and vice versa. 296See id. at 111. Wells additionally argued that ignoring substance leads to the confusing state action tests. Id. at 111–12.

This substantive rights approach is echoed in the courts as well. Judge Friendly of the Second Circuit advocated consideration of a litigant’s substantive rights in a state action analysis. 297Henry J. Friendly, The Public–Private Penumbra—Fourteen Years Later, 130 U. Pa. L. Rev. 1289, 1291 (1982). While much of this may be an implicit consideration, 298See Wells, supra note 295, at 107 (“[T]he modern view distinguishing between state action and the substantive merits has become entrenched . . . . All the Justices seem to take it for granted.”). there is a clear “tendency of reviewing courts to apply different standards of analysis depending upon the nature of the Constitutional right involved.” 299Sheila S. Kennedy, When Is Private Public? State Action in the Era of Privatization and Public–Private Partnerships, 11 Geo. Mason U. C.R. L.J. 203, 215 (2001). A handful of Supreme Court dissents have acknowledged the role the varying substantive interests play in the state action analysis. 300See, e.g., Jackson v. Metro. Edison Co., 419 U.S. 345, 373–74 (1974) (Marshall, J., dissenting); Adickes v. S.H. Kress & Co., 398 U.S. 144, 190–91 (1970) (Brennan, J., dissenting). Many lower federal courts actively embrace this substantive rights analysis. 301Jakosa, supra note 293, at 194–97. This suggests that, if litigated, a challenge to the Shomrim would be more likely to win because the claims involve the Equal Protection Clause and discrimination. The substantive right of equal protection outweighs the Shomrim’s right to government funding.

The strongest application of the substantive rights approach is demonstrated in the courts’ approach to racial discrimination and the First Amendment. The level of government activity required to find state action appears to be less in these cases. 302See Kennedy, supra note 299, at 215 n.78. Many scholars have also posited that the state action doctrine was used during the Civil Rights Era when Congress was unable to enforce civil rights legislation. Thus, state action provided a useful tool. See, e.g., David A. Strauss, State Action After the Civil Rights Era, 10 Const. Comment. 409, 413 (1993). Many scholars have asserted that cases where the Supreme Court did not find state action would have had a different outcome had there been a stronger substantive right at play. The confusing case of Shelley v. Kraemer is one case where many consider the discriminatory effect to have been the dispositive factor in finding state action. 303334 U.S. 1, 23 (1948). Many commentators cited the substantive-rights approach to explain the limited application of Shelley. See, e.g., Strauss, supra note 302, at 409, 413. Chemerinsky provided two case examples of state action where the government gave aid with the intent of undermining school desegregation. Chemerinsky, supra note 141, at 536 (citing Gilmore v. City of Montgomery, 417 U.S. 556, 568−69 (1974); Norwood v. Harrison, 413 U.S. 455, 464−65 (1973)). In the case of government subsidies, state action is most likely to be found when the “government’s purpose is to undermine the protection of constitutional rights.” 304Chemerinsky, supra note 141, at 536. Often, the analysis focuses on whether there is truly any real harm done discriminatorily. 305See 2 Rotunda & Nowak, supra note 175, § 16.3 (asserting the analysis in Moose Lodge No. 107 v. Irvis focused on whether any real harm was done discriminatorily).

In the case of the Shomrim, under a substantive rights approach the fact that they discriminate renders a finding of state action more likely. It is the specific situation giving rise to discriminatory actions that compels state action where it might otherwise not be found. Using a substantive rights approach may be especially imperative given the complexities and confusion surrounding the state action doctrine. Substantive rights may serve to ensure that the most egregious violations are addressed.

C. Privatization and the Perverse Incentives of State Action

The substantive rights approach aids in deciding when government should be held accountable and where the line between public and private conduct lies. This line between privatization and government conduct and, therefore, where constitutional liability begins and ends, is especially blurred in an era of greater privatization. 306See generally Metzger, supra note 22. Metzger argued that “[p]rivate involvement in government is addressed primarily through the state action doctrine, which inquires whether, in a particular context, ostensibly private parties should be considered ‘state (or federal) actors.’” Id. at 1370. Not only is it increasingly challenging to discern where the line between private action and state action is drawn, but also criticism of the failings of the state action doctrine to address privatization abounds. 307See, e.g., id. Privatization frequently removes what was formerly, or should be, government programs and activities from constitutional scrutiny, as “few instances of privatization are likely to trigger a finding of state action.” 308Id. at 1375. Particularly problematic is when government power, exercised by private actors, allows the private actors to then control third parties because of the government’s allocation of power. 309Id.

The Shomrim highlight this problem by serving as an example of privatization that does trigger state action. Finding state action here is especially important because otherwise, the Shomrim’s discriminatory actions are not only shielded from constitutional scrutiny, but also largely from the political process, tort law, and criminal law. 310See supra Part I.E. The Shomrim’s allocation of government power allows them to control third parties, yet it is insulated from challenges.

Application of the substantive rights approach may be especially imperative when considering what Gillian Metzger termed the “perverse incentives” of state action. 311Metzger, supra note 22, at 1371. The state action doctrine is both under- and over-inclusive, and it is ultimately a “poor vehicle” with which to preserve government accountability. 312Id. at 1375. State action is over-inclusive because it unnecessarily restricts a government’s ability to flexibly use available resources when it applies constitutional constraints on private action that exercises government power that is otherwise properly constrained. 313Id. Conversely, state action is under-inclusive because it fails to take account of the many instances of privatization that erroneously escape the ill-defined confines of state action. 314See id. Overall, this creates perverse incentives for the government to allocate private partners “broad discretion over government programs,” minimizing government involvement and further endangering the threat privatization poses to constitutional accountability. 315Id.

The line between public and private is further blurred when, like the Shomrim, state actors are also religious actors. The next Part discusses the constitutional issues implicated in religious state action and explores possible solutions to the Shomrim.

IV. Possible Solutions for Religious State Action: A Constitutional Gray Area

Thus far, this Comment establishes that the Shomrim are state actors under the Constitution. As state actors, the Shomrim will be held liable for discriminatory conduct under the Fourteenth Amendment. While treating the Shomrim as state actors provides the strongest constitutional argument, this does not necessarily render the best solution.

First, this Part goes through some possible solutions to the problem presented by the Shomrim. Such an exercise demonstrates constitutional gray areas and discovers that the only constitutionally permissible solution is to defund the Shomrim and remove their ties to the state. This constitutional gray area should serve as an indication of the problems inherent in funding insular groups and organizations like the Shomrim. Because these groups aim to operate around their own private interest, they run an inherent risk of discrimination against the outside community. Privatizing such organizations should be inherently suspect. This Part concludes by asserting that in these situations, the best policy is for the government to keep its hands and money away.

A. Possible Solutions to the Shomrim Problem

As state actors, the Shomrim would be subject to liability for their constitutional torts or violations of constitutional rights. 316A constitutional tort is an “action[] brought against government[] [and those fairly said to be government actors] . . . seeking damages for the violation of federal constitutional rights, particularly those arising under the Fourteenth Amendment and the Bill of Rights.” Sheldon H. Nahmod, Michael L. Wells & Thomas A. Eaton, Constitutional Torts 1 (3d ed. 2009). For instance, minorities unfairly pursued and beaten by the Shomrim could sue under 28 U.S.C. § 1983 for infringing on their individual rights protected under the Constitution. 317A plaintiff would probably sue for violations under the Equal Protection Clause, as well as the Due Process Clause, of the Fourteenth Amendment. U.S. Const. amend. XIV, § 1. The Shomrim would be liable for damages and equitable relief, such as declaratory relief or an injunction ordering them to stop. Additionally, the government might be open to liability for the Shomrim’s actions. 318The plaintiff would likely argue the Shomrim were acting pursuant to the government’s policy or custom, also under 28 U.S.C. § 1983. Applying constitutional norms solves the problem of discrimination; however, it would come at a significant cost. 319Metzger, supra note 22, at 1406. Holding private entities to constitutional norms obstructs their autonomous nature at large, as well as individually because the entity may be subject to the government’s regulatory prerogatives. 320Id. at 1406–07. Determining who is subject to constitutional norms is an additional concern because it arguably raises a separation of powers problem, where the judiciary decides who is acting as a part of the government. 321Id. at 1407–08. Extension of constitutional constraints on the Shomrim also intrudes on the government’s ability to utilize useful private agents providing social services. 322See id. at 1427.

While classification as a state actor would extend constitutional requirements to the Shomrim, the government would be unlikely to leave the Shomrim as they are. First, the possibility of a lawsuit and liability 323See supra notes 306–07 and accompanying text. for the government would be too great to ignore. Second, the public outrage over an arm of the state policing in such a discriminatory fashion would likely compel the government to either regulate the Shomrim or remove the state from the state action. The following paragraphs consider these solutions.

One solution might be for the government to institute regulations or monitoring to limit liability for the Shomrim’s unconstitutional actions. However, further regulation might result in an Establishment Clause violation. As the Shomrim currently operate, it is not clear there is an Establishment Clause violation. 324See supra Part II. Additional regulations and potentially “pervasive” monitoring might result in excessive entanglement reaching a constitutionally impermissible level. 325See supra Part II; see also Mitchell v. Helms, 530 U.S. 793, 794 (2000). While the Shomrim, the NYPD, and the state are already closely entwined and work together, further regulations would provide even more government endorsement of their discriminatory actions. 326 Cf. Kennedy, supra note 299, at 218 (suggesting contract monitoring in charitable choice religious social services might amount to “entanglement” under the Establishment Clause). Further, it is also possible that such regulation would raise concerns regarding the infringement on the free exercise of religion, 327“Congress shall make no law . . . prohibiting the free exercise thereof . . . .” U.S. Const. amend. I. as government intrusion via regulations and monitoring “threatens religious autonomy.” 328Saperstein, supra note 15, at 1366–67. A regulation may unduly restrict exercise of what the Hasidim consider part of their religion. This is further compounded by the fact that the courts are not free to define religion. 329See 1 Kent Greenawalt, Religion and the Constitution: Free Exercise and Fairness 136–42 (2006). However, the free exercise argument may not be as large a hurdle, as there might be a compelling purpose to the law. Therefore, further regulation and monitoring might exacerbate the constitutional problem rather than fix it.

If unable to regulate the Shomrim, the government would likely remove its presence and funding because it would be exposed to liability. This removes the “state” from state action and remedies the Establishment Clause problem by withdrawing funding. The government would take away at least some funding 330One could argue that indirect funding, rather than direct funding, could lessen the problem; however, logistically it is unclear how one could indirectly fund the Shomrim or make the funding resultant from individual choice. While prison vouchers seem plausible, see, e.g., Volokh, supra note 123, at 988, police vouchers might be a little far-fetched. and halt the close relationships the Shomrim have formed with the local police and local legislators. While defunding and cutting some of the ties with the state would no longer render the Shomrim subject to constitutional limitations, they also may not be able to function effectively. The Shomrim rely almost entirely on government funds, and it may prove impossible to privately provide the funds necessary to continue. 331Cf. Fernanda Santos, Reverberations of a Baby Boom, N.Y. Times, Aug. 27, 2006, § 1, at 23 (noting that 62% of families live below the poverty line in Kiryas Joel, a Hasidic enclave). This is unfortunate because, other than their discriminatory actions, the Shomrim provide a valuable service to their community. Although defunding and removing the ties with the state is a dismal conclusion, it appears to be the only constitutionally permissible solution.

B. The Problem of Privatization of Inherently Religious Organizations

Ultimately, the Shomrim demonstrate the inability of the Constitution to adequately address the problems posed by privatized social services provided by inherently religious organizations. In these cases, the government must be especially careful in how it decides to fund and work with religious social services. Not all government funded religious actors are state actors. However, in an age of increased privatization of religion through the use of government funds, state action—along with the substantive-rights approach—is necessary to identify instances of discrimination. State action may provide an important vehicle to keep these organizations in check and give proper accordance to constitutional rights.

The previous section highlights the constitutional gray area resulting from the privatization of religious social services. In any formulation where the government is involved, a constitutional problem arises. In the tense realm between the Free Exercise Clause, the Establishment Clause, and the state action doctrine, attempting to remedy constitutional issues serves to further exacerbate the constitutional problem.

In addition to the Shomrim, a striking example of this is the debate over whether religious organizations funded by the government have the right to discriminate in hiring. 332See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694 (2012); Emp’t Div. v. Smith, 494 U.S. 872 (1990). See generally 1 Greenawalt, supra note 329. While the employment discrimination discussion is beyond the scope of this Comment, it serves as another demonstration of the tensions between the constitutional doctrines that result from government funding of inherently religious organizations. The murky waters of this constitutional gray area should serve as an indication of the problems in privatizing the services of inherently religious organizations. The government should be extremely careful in funding and working with these organizations.

As set forth in the beginning of this Comment, commentators have suggested that insular or inherently religious groups may be more likely to discriminate against outsiders. 333See supra Intro. This argument may be extended to other common interest, but nonreligious, communities. For example, in gated communities, where residential associations are “fraught with potential for discrimination on the basis of race and class.” David J. Kennedy, Note, Residential Associations as State Actors: Regulating the Impact of Gated Communities on Nonmembers, 105 Yale L.J. 761, 768 (1995). Not only are streets privatized through judicial means, but also these communities frequently use security guards or private police. Id. at 771. Similar to the Shomrim policing Hasidic communities, “[a] black person who shows up in one of these places is likely to get busted” by the private police employed by the communities to keep them out. Id. (alteration in original) (internal quotation marks omitted). Scholars argue that residential associations may be transformed into state actors because they receive and utilize public resources, serve a public function, and have an interdependent relationship with local governments. See id. at 783–84; see also Angel M. Traub, Comment, The Wall Is Down, Now We Build More: The Exclusionary Effects of Gated Communities Demand Stricter Burdens Under the FHA, 34 J. Marshall L. Rev. 379, 393–94 & n.91 (2000). In previous eras, the Supreme Court has been extremely wary of allowing the funding of “pervasively sectarian” organizations because of their inability to separate and pursue strictly secular goals. As one scholar asserted, “Discriminatory practices have been considered indicia of a pervasively sectarian environment.” 334Steven K. Green, Religious Discrimination, Public Funding, and Constitutional Values, 30 Hastings Const. L.Q. 1, 47 (2002). It is the “inherent religious mission and culture” of these insular, inward-looking, and pervasively sectarian institutions that exerts great pressure to discriminate. 335Saperstein, supra note 15, at 1366. To ensure compliance with government regulations, these groups thus require extensive monitoring. However, this in itself carries a “catch-22” of entanglement with religion and “threatens religious autonomy.” 336Id. at 1366–67.

Consider the social or cultural implication of privatization: “an individual’s withdrawal from civic life and reorientation towards the pursuit of self-interest.” 337Metzger, supra note 22, at 1377. The Shomrim, along with other insular or pervasively sectarian communities, remove themselves from the public world and reorient toward their own pursuits. 338Recent spotlight from the media may make it especially imperative to further examine the Shomrim’s actions. See, e.g., Berger, supra note 7; Jen Chung, Photos: Liev Schreiber as Williamsburg Shomrim Officer, Woody Allen as a Pimp, Gothamist (Nov. 13, 2012, 3:17 PM), http://gothamist.com/2012/11/13/photos_liev_schreiber_as_williamsbu.php#photo-1 (showing Liev Schreiber playing a Brookyln Shomrim officer). Privatization in the context of the government, however, implies the transfer of public power, money, and responsibilities to private hands. 339Metzger, supra note 22, at 1377. It should be suspect for the government to employ privatization to transfer public power to organizations that are oriented around their own self-interest, especially given an increased likelihood of discrimination. As Professor Kent Greenawalt warned, these religious organizations may “use government to promote their religion by excluding outsiders.” 3402 Greenawalt, supra note 13, at 234. The Shomrim demonstrate the particular concern in religious privatization of the danger “of turning vulnerable client populations over to well-meaning ministries arguably unconstrained by the Fourteenth Amendment.” 341Kennedy, supra note 299, at 217.

Conclusion

The disconcerting issue of discrimination by government-funded, inherently religious organizations is a difficult constitutional question. While government funding of religious organizations and social services has been hotly debated in the past decade, the issue of discrimination by these organizations has received limited attention. Constitutionally, if these religious organizations are private actors they may be free to discriminate. However, when contacts with the state, along with public money transform religious organizations into state actors, they must act in accordance with the Constitution. Attempts to remedy the problem demonstrate there is no easy solution.

Thus, this Comment ties together a variety of arguments and research—the propensity for discrimination by insular or inherently religious communities, the increase in government privatization, and funding of religious social service providers—to suggest there is a danger in government privatization of insular religious organizations. It should be viewed as inherently suspect for the government to become involved with such exclusive communities. Using the Shomrim, this novel application of the Establishment Clause and the state action doctrine demonstrates the constitutional gray areas that may result from the privatization of insular religious communities. Going forward, the Shomrim problem teaches that these constitutional gray areas indicate an area where government is not meant to go.

Footnotes

1See Daniel Burke, Volunteer Unit Accused of Racism, Wash. Post, Feb. 5, 2011, at B2 (internal quotation marks omitted).

2Corey Kilgannon, In Protecting Hasidic Neighborhoods, Squads Patrol Without Guns or Badges, N.Y. Times, Sept. 4, 2010, at A14 (noting the Shomrim “wore blue jackets with emblems . . . [and displayed] forelocks of the Hasidic”).

3Anna Schneider-Mayerson, Hispanic Activists Want Shomrim Disbanded, N.Y. Sun, May 10, 2002, at 1.

4See Alex Mindlin, Patrolling the Streets, and Dissing the Rivals, N.Y. Times, June 1, 2008, at CY6.

5Driver Is Accused of Chasing Youths, N.Y. Times, Apr. 26, 1997, at 27.

6See Matthew Shaer, Among Righteous Men: A Tale of Vigilantes and Vindication in Hasidic Crown Heights 27 (2012); see also supra notes 1–5; cf. Shaer, supra, at 13 (entering a room, one man “saw seven men in navy blue uniforms and thought, Police”).

7Hasidic Jews represent a sect of extremely religious, mystical Orthodox Judaism. Within the Hasidism are different sects with particular views and specific norms and dress (e.g., Satmar, Bobovich, and Lubodovich Hasidim). Although they tend to live and work within their own groups, they interact substantially with one another. This Comment refers to the various Hasidic sects collectively. See Joseph Berger, Killing Rattles a Jewish Community’s Long-Held Trust of Its Own, N.Y. Times, July 15, 2011, at A1. See generally Hasidism, in Encyclopedia of Religion in America (Charles H. Lippy & Peter W. Williams eds., 2010), available at http://library.cqpress.com/era/encyra_943.1.

8Nick Pinto, Gotham’s Crusaders, Village Voice, Sept. 7, 2011, at 9.

9See, e.g., Karen Matthews, Orthodox Communities Rely on Patrols for Safety, Associated Press, July 16, 2011, available at http://www.usatoday.com/news/nation/2011-07-16-brooklyn-boy-volunteer-patrol_n.htm (“[C]ritics have accused some of being vigilantes who target blacks.”).

10See, e.g., David Kocieniewski, Hasidic Patrol Group Faces Questions After a Crown Heights Clash, N.Y. Times, May 11, 1996, at 21 (noting that members of the Shomrim randomly stop black pedestrians to ask why they are in the neighborhood to make outsiders feel unwanted); Pamela Newkirk, Ice Slowly Thawing Ethnic Tension Seen Lessening, Newsday (N.Y.), July 28, 1991, at 1.

11U.S. Const. amend. XIV, § 1 (“[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person . . . the equal protection of the laws.” (emphasis added)).

12See generally Ira C. Lupu & Robert W. Tuttle, The Faith-Based Initiative and the Constitution, 55 DePaul L. Rev. 1 (2005) (identifying the partnership between religious entities and government agencies and describing the constitutional challenges such partnerships present).

132 Kent Greenawalt, Religion and the Constitution: Establishment and Fairness 353 (2009).

14See generally Lupu & Tuttle, supra note 12.

15David Saperstein, Public Accountability and Faith-Based Organizations: A Problem Best Avoided, 116 Harv. L. Rev. 1353, 1366 (2003).

16See id. at 1364–65.

17Martha Minow, Public and Private Partnerships: Accounting for the New Religion, 116 Harv. L. Rev. 1229, 1240 (2003).

18See Saperstein, supra note 15, at 1383 (responding to Martha Minow’s statement).

19Id.

20Donald S. Dobkin, The Rise of the Administrative State: A Prescription for Lawlessness, 17 Kan. J.L. & Pub. Pol’y 362, 364–65 (2008); see also Hadar Aviram et al., Moving Targets: Placing the Good Faith Doctrine in the Context of Fragmented Policing, 37 Fordham Urb. L.J. 709, 727 (2010).

21See Aviram et al., supra note 20, at 727.

22Gillian E. Metzger, Privatization as Delegation, 103 Colum. L. Rev. 1367, 1372 (2003).

23See Berger, supra note 7.

24See infra Part I.

25The Hasidim also avoid secular courts, “which they view as less than perfectly attuned to their interests,” because Jewish law (halacha) calls on Jews to go through beis din, or rabbinical arbitration, first. Shaer, supra note 6, at 3.

26See Amended Complaint and Demand for Jury Trial, Crown Heights Shomrim Volunteer Safety Patrol, Inc. v. City of N.Y., No. 11 CV 0329 (KAM)(JMA) (E.D.N.Y. Sept. 6, 2011).

27Although there is some criticism of whether the Establishment Clause and the state action doctrine should overlap, the intricacy of the relationship between the two doctrines is beyond the scope of this Comment. For a more in-depth discussion, see Lupu & Tuttle, supra note 12.

28Developments in the Law—State Action and the Public/Private Distinction, 123 Harv. L. Rev. 1248, 1250 (2010) (citing Sam Kamin, The Private Is Public: The Relevance of Private Actors in Defining the Fourth Amendment, 46 B.C. L. Rev. 83, 85 (2004)).

29Shaer, supra note 6, at 2 (emphasis omitted).

30Matthew Shaer, A Shtetl Divided: Messianic Vigilantes, Brawling Hasidim, and the Battle for Jewish Brooklyn, Harper’s Mag., Jan. 2011, at 53, 54.

31E.g., Flatbush Shomrim, Crown Heights Shomrim, Crown Heights Shmira, Williamsburg Shomrim, Borough Park Shomrim, and Kings County Shomrim.

32Shaer, supra note 6, at 8.

33Shaer, supra note 30, at 54 (“Their lives are circumscribed by prayer, study, familial obligation, and a deep commitment to their Rebbe, or grand rabbi, who is considered closer to God than are other mortal men.”).

34T. Alexander Aleinikoff & Samuel Issacharoff, Race and Redistricting: Drawing Constitutional Lines After Shaw v. Reno, 92 Mich. L. Rev. 588, 596 (1993) (referring to the Hasidim in Brooklyn regarding United Jewish Organizations v. Carey).

35See 2 Greenawalt, supra note 13, at 229.

36Hasidim, meaning “pious one,” refers to the Hasidic Jewish people.

37Kilgannon, supra note 2 (“Many area residents are more likely to call the patrol’s hot line number than 911.”).

38The Hasidic community is frequently untrusting of outsiders. See id.

39Corey Kilgannon, For Hasidim, First Call for Help Often Isn’t to 911, N.Y. Times City Room (July 15, 2011, 2:35 PM), http://cityroom.blogs.nytimes.com/2011/07/15/in-hasidic-areas-first-call-for-help-isnt-to-911.

40Jordan Heller, Jewish Street Patrols Curb Crime—and Generate Controversy, Christian Sci. Monitor, Feb. 11, 2009, at 25.

41Kilgannon, supra note 2. Additionally, the Shomrim have come in conflict with the NYPD as well as the community they aim to protect. See Shaer, supra note 6, at 3.

42Pinto, supra note 8, at 10. Some Shomrim members are NYPD auxiliary force members, and some participate in the COP program (Community Oriented Policing). Shaer, supra note 6, at 73, 165.

43See Pinto, supra note 8, at 12.

44Kilgannon, supra note 2.

45For example, in 2010 four Shomrim members were shot after pursuing and confronting a known perpetrator. Anahad O’Connor & Mick Meenan, Man Shoots Four Members of Jewish Patrol in Brooklyn, N.Y. Times, Sept. 3, 2010, at A16.

46Simone Weichselbaum, Praise & Scorn for Hasidic Patrols. Some Say They Target Minorities, N.Y. Daily News, July 5, 2011, at 3.

47Heller, supra note 40.

48See, e.g., CrownHeights Shomrim, Facebook, http://www.facebook.com/crownheights.shomrim (last visited June 18, 2013); Yeshiva World News, http://www.theyeshivaworld.com/local/nyc (last visited June 18, 2013).

49Heller, supra note 40.

50Weichselbaum, supra note 46.

51Kilgannon, supra note 39.

52The Shomrim use yellow crime scene tape labeled “shomrim.” Kilgannon, supra note 2.

53See id.; see also infra note 57.

54See infra notes 57–58. The Shomrim even have the same “courtesy, professionalism, respect” emblem that the NYPD has on its patrol cars. See id.

55The Shomrim also maintain legions of scooters similar to those used by the NYPD and command centers that also mimic NYPD command centers. Compare Photos: Shomrim Roll Out New Vehicle Design, CrownHeights.info (May 12, 2010), https://crownheights.info/picture-of-the-day/26270/photos-shomrim-roll-out-new-vehicle-design/ (picturing Shomrim patrol cars marked the same way as NYPD older design scooters), with Picture of the Day—The Police Response to Carjacking, CrownHeights.info (Feb. 14, 2011), http://crownheights.info/picture-of-the-day/32393/picture-of-the-day-the-police-response-to-carjacking/.

56See infra notes 57–58. The only discernible difference in the two cars is that the NYPD emblem is replaced with either “SHOMRIM” or an acronym representing the particular neighborhood patrol.

57Shomrim Put Out First Marked Patrol Car, CrownHeights.Info (Oct. 3, 2006), http://crownheights.info/general/3271/shomrim-put-out-first-marked-patrol-car/. CHVP stands for Crown Heights Volunteer Patrol, a Shomrim patrol in Brooklyn.

58Police Car Web Site, http://policecarwebsite.net/fc/ny/nypd/nypd567.jpg (last visited June 18, 2013).

59O’Connor & Meenan, supra note 45.

60Weichselbaum, supra note 46. However, reports assert that their use of the “red-and-blue backlight package” is illegal. Id.

61The fact that the police have not stopped the Shomrim’s use of the lights may indicate their de facto allowance. See infra Part III.

62See, e.g., Shomrim – שומרים, Levaya of Leiby Kletzky HY”D, Facebook, http://www.facebook.com/media/set/?set=a.226042130772432.53081.162855353757777&type=1 (last visited June 18, 2013) (showing the Shomrim working, literally, hand-in-hand with the NYPD to control the crowds at a young boy, Leiby Kletzky’s, funeral).

63Matthews, supra note 9.

64See Shaer, supra note 6, at 165; see also Jacob Sugarman, Watchmen, Tablet Mag. (May 26, 2011, 7:00 AM), http://www.tabletmag.com/jewish-news-and-politics/68298/watchmen (noting the Shomrim’s “biennial training regimen” with the NYPD).

65See Sean Gardiner & Alison Fox, Civilian Patrol Was Family’s First Call, Wall St. J., July 16, 2011, at A15.

66See Shaer, supra note 6, at 165.

67Id. Shaer asserted the group (Shmira) received this space to “keep a tight rein on the Shmira” and in retaliation against another Shomrim group that refused to cooperate with the NYPD. For further discussion of this as well as the rivalry and split between two Shomrim groups in Crown Heights, see id.

68Id. at 73.

69Pinto, supra note 8, at 13. Member-items, “portion[s] of state funding allocated by the [New York] Senate and Assembly,” must be “used for a public purpose.” Resources: Member Items, N.Y. Open Gov’t, http://www.nyopengovernment.com/NYOG/resources_member.html (last visited June 13, 2013).

70Pinto, supra note 8, at 13; see also Editorial, Shomrim Shanda, N.Y. Post, Aug. 7, 2011, at 24 (noting that the Shomrim received $130,000 in city council member items from the 2011 budget); Matthews, supra note 9 (explaining that office rent and two-way radios were funded by donations, with some support from local elected officials, and that the Shomrim wear vests and jackets donated by the police department). Despite this criticism, some politicians assert that it is good sense to help equip community organizations like the Shomrim. See Pinto, supra note 8 (noting that Brooklyn politicians assert good sense to equip community organizations like the Shomrim).

71 Pinto, supra note 8; cf. John Doyle, Van with a Plan—Orthodox Patrollers Holy Rollers in Luxeunit, N.Y. Post, May 25, 2009, at 17 (criticizing the $250,000 command center paid for by grants from the city). In March 2012, the Borough Park Shomrim received a new “state of the art” mobile command center through funding from the city council. The unveiling was celebrated by a wide array of government officials that included a U.S. Representative, the New York City comptroller, a state senator and state assemblyman, city council members, and NYPD inspectors. See A New State of the Art Command Center for Borough Park Shomrim, Assemblyman Dov Hikind (Mar. 26, 2012), http://dovhikind.blogspot.com/2012/03/new-state-of-art-command-center-for.html.

72Shaer, supra note 30, at 54.

73Pinto, supra note 8, at 13 (internal quotation marks omitted).

74Id.; see also Shaer, supra note 6, at 52. The “enormous power [insular group] voting blocs have in American politics” is well recognized, despite the famous Carolene footnote arguing for protection of such powerless groups. Bruce A. Ackerman, Beyond Carolene Products, 98 Harv. L. Rev. 713, 728 (1985).

75Pinto, supra note 8, at 10 (noting the police were “careful not to antagonize the Shomrim”); see also Newkirk, supra note 10 (describing the disproportionate Hasidic presence on the school board and preferential treatment of Shomrim when they stormed the precinct).

76See Kilgannon, supra note 2.

77See Kilgannon, supra note 39.

78Id. (internal quotation marks omitted).

79An issue with mesira, the Talmudic prohibition against telling on another Jew, is also implicated as a reason invoked by rabbis to justify not reporting abuse to secular authorities. See Pinto, supra note 8, at 10.

80See id. at 14. When these crimes are reported to the Shomrim, the issues frequently are covered up and the cycle is perpetuated where “rabbis, youth leaders, and yeshiva teachers caught molesting children [are] shielded from the secular justice system.” Id. at 11; see also Berger, supra note 7.

81See Pinto, supra note 8, at 12.

82Id. at 14.

83See Kilgannon, supra note 2 (describing 1996 case where members were arrested after accusations of beating up a black man); Matthews, supra note 9 (noting criticisms of the Shomrim as “being vigilantes who target blacks”); Newkirk, supra note 10 (noting that a Hispanic leader described the Shomrim as “‘vigilantes who have terrorized our community’”).

84See Matthews, supra note 9.

85See Heller, supra note 40.

86See, e.g., Dan Morrison, Heights of Anger, Newsday (N.Y.), May 11, 1996, at A05 (noting that law enforcement sources stated the Shomrim stop blacks and question why they are there).

87See Kocieniewski, supra note 10 (internal quotation marks omitted).

88See Shaer, supra note 6, at 52.

89See, e.g., Shomrim – שומרים, One Arrested for Robbery & Bomb Scare by Boro Park Shomrim (BSSP), Facebook, http://www.facebook.com/media/set/?set=a.196550410388271.45111.162855353757777&type=1 (last visited June 18, 2013); Shomrim – שומרים, Robbery at Gunpoint, and Attempted Carjacking 5/3/11, Facebook, http://www.facebook.com/media/set/?set=a.196547460388566.45109.162855353757777&type=1 (last visited June 18, 2013).

90See Pinto, supra note 8, at 12 (describing a video released by the Shomrim). To view the video, see Brooklyn South Safety Patrol, YouTube (July 19, 2011), http://www.youtube.com/watch?v=G-s4RoaAt1g&feature=player_embedded.

91Later in the video, Shomrim members heroically scale a balcony to catch a Hispanic man breaking into an apartment after a scared Hasidic child calls the Shomrim, rather than 911. See Pinto, supra note 8, at 12.

92Newkirk, supra note 10.

93Id. Forty-six officers were injured. Id.

94This is also an issue stemming from the Jewish law of merisah, which prevents Jews from reporting other Jews. See Pinto, supra note 8, at 10.

95Cf. Pinto, supra note 8 (discussing the political power held by the Hasidic populations because of the uniform way they vote).

96Cf. Metzger, supra note 22 (describing the perverse reasons why private actors seek to perform traditional government functions).

97U.S. Const. amend. I. The Establishment Clause was incorporated and applied to the states under the Fourteenth Amendment. Everson v. Bd. of Educ., 330 U.S. 1 (1947).

98See Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 222 (1963).

99Brandon v. Bd. of Educ., 635 F.2d 971, 975 (1980) (including public services such as fire, police, and transportation).

100Id.

101See, e.g., Lynch v. Donnelly, 465 U.S. 668 (1984) (explaining that the Establishment Clause does not create a complete wall between church and state).

102 See 2 Greenawalt, supra note 13, at 11.

103See generally id. at 336–51.

104Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 225 (1963).

105Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 772 (1973) (internal quotation marks omitted).

106Meek v. Pittenger, 421 U.S. 349, 359 (1975) (internal quotation marks omitted), overruled by Mitchell v. Helms, 530 U.S. 793 (2000).

1076 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure § 21.4(c)(v) (4th ed. 2008).

108Id.

109Id.

110See, e.g., Bradfield v. Roberts, 175 U.S. 291, 297 (1899). See generally 6 Rotunda & Nowak, supra note 107, § 21.4(c)(v).

111While standing is another hurdle that must be overcome in bringing an Establishment Clause claim, for the purposes of this Comment standing is not substantively considered. The Court has tightened standing requirements in recent years, but standing would likely not be an issue here. See John Witte, Jr. & Joel A. Nichols, Religion and the American Constitutional Experiment 170–73 (3d ed. 2011).

112459 U.S. 116 (1982).

113403 U.S. 602 (1971).

114See generally Richard C. Schragger, The Relative Irrelevance of the Establishment Clause, 89 Tex. L. Rev. 583 (2011) (noting that given recent Establishment Clause jurisprudence, courts are unlikely to find an impermissible establishment of religion).

115See infra Part IV.

116Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 710 (1994).

117While the Supreme Court analyzed Larkin as “entanglement” under the three-pronged Lemon test, delegation was used independently in Kiryas Joel, without mention of Lemon, and is significant enough to be considered on its own.

118459 U.S. 116, 117 (1982).

119Id. at 123.

120Id. at 125–26.

121See supra Part I.

122See N.Y. Comp. Codes R. & Regs. tit. 19, § 170.1 (2013).

123See Alexander Volokh, The Constitutional Possibilities of Prison Vouchers, 72 Ohio St. L.J. 983, 1018 (2011).

124Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 696–97 (1994) (plurality opinion).

125Id. at 702 (majority opinion).

126Id.

127Id. at 699 (plurality opinion).

128Id. at 696. This created, illegally, “a space in which they can hide from the general American constitutional framework and thereby protect their beliefs, practices, families, and children.” Shauna Van Praagh, Changing the Lens: Locating Religious Communities Within U.S. and Canadian Families and Constitutions, 15 Ariz. J. Int’l & Comp. L. 125, 132 (1998).

129Kiryas Joel, 512 U.S. at 699 (plurality opinion).

130Id. at 699–701. In reaching this conclusion, the plurality looked beyond the text of the statute, finding that legislative history explained the true creation of the school district. Id.

131Id. at 697.

132See 2 Greenawalt, supra note 13, at 234.

133Id. at 235; see also id. at 234 (noting “it is highly doubtful whether members of a religion should be able to use government to promote their religion by excluding outsiders, if they have no plan for a close integrated social life, only a wish not to live near nonadherents”).

134403 U.S. 602 (1971). The original, three-pronged Lemon test provided: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion.’” Id. at 612–13 (citation omitted).

135521 U.S. 203 (1997). In Agostini, the Court enveloped the third prong, entanglement, under the second prong “as an aspect of the inquiry into a statute’s effect.” Id. at 233.

136Id. at 222–23.

137See 2 Greenawalt, supra note 13, at 160 (“Lemon’s day as a complete test has already passed; but that does not mean its various elements are irrelevant.” (footnote omitted)). Although approaches to Establishment Clause litigation may vary, the Lemon test is used here because “cases decided under Lemon are treated as authoritative,” and other approaches “are best understood either as versions of or alternatives to Lemon as a whole, or to its various components.” Id. at 161.

138Id. at 161.

139See, e.g., McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 860–61, 864 (2005). A “secret” motive may be so secret that an objective observer does not see its impermissible purpose. In such a case, this does not cause the law to fail the purpose prong. Additionally, for “secret” motives, the Court in McCreary County advocated a “wait and see” approach as to whether the action actually did advance religion. Id. at 863.

140See 2 Greenawalt, supra note 13, at 175 (noting that “improper effects may also flow from acceptable purposes”).

141Erwin Chemerinsky, Constitutional Law: Principles and Policies 1202 (3d ed. 2006).

1422 Greenawalt, supra note 13, at 174.

143Because Agostini focused on school funding, where indoctrination is more relevant, the proceeding analysis will focus on endorsement.

144521 U.S. 203, 234 (1997).

145Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373, 389 (1985), overruled by Agostini, 521 U.S. 203.

146See Chemerinsky, supra note 141, at 1204.

147See id. at 1205.

148803 F.2d 1235 (2d Cir. 1986).

149Id. at 1241.

150Bollenbach v. Bd. of Educ. of Monroe–Woodbury Cent. Sch. Dist., 659 F. Supp. 1450 (S.D.N.Y. 1987).

151Id. at 1475.

152Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 10 (1993).

153Freedom from Religion Found., Inc. v. Bugher, 249 F.3d 606, 612 (7th Cir. 2001).

154See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 842 (1995).

155See Agostini v. Felton, 521 U.S. 203, 225 (1997). However, indirect aid still presents the problem of fungibility—the idea that government aid to one part is support to the whole—because it frees up other money to be spent on religious activities. See Saperstein, supra note 15, at 1384.

156Witters v. Wash. Dep’t of Servs. for the Blind, 474 U.S. 481, 487 (1986).

157See Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 697 (1994) (plurality opinion); see also supra Part II.A.

158See Agostini, 521 U.S. at 231–32.

159Id. at 231.

160See id. at 233–34 (internal quotation marks omitted); see also 6 Rotunda & Nowak, supra note 107, at 113.

161See Lemon v. Kurtzman, 403 U.S. 602, 619 (1971) (warning that “a comprehensive, discriminating, and continuing state surveillance” might be necessary to ensure the First Amendment is respected).

162Meek v. Pittenger, 421 U.S. 349, 372 (1975) (quoting Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 794 (1973)), overruled by Mitchell v. Helms, 530 U.S. 793 (2000).

163Mitchell, 530 U.S. at 861–62 (O’Connor, J., concurring in the judgment) (noting that “pervasive monitoring” is not necessary for “constitutionally sufficient” safeguards); see also Volokh, supra note 123, at 993 n.59 (noting self-auditing and occasional monitoring visits would be sufficient monitoring, but would not create excessive entanglement). Additionally, Volokh asserted “the Establishment Clause concern isn’t pervasive monitoring as such, but pervasive monitoring that leads to entanglement with religion.” Id. at 994 n.59.

164See Agostini, 521 U.S. 203.

165Chemerinsky, supra note 141, at 1206.

166Bollenbach v. Bd. of Educ. of Monroe–Woodbury Cent. Sch. Dist., 659 F. Supp. 1450, 1465–66 (S.D.N.Y. 1987).

167Id.

168Id. at 1466.

169750 F. Supp. 575, 581 (E.D.N.Y. 1990), aff’d, 928 F.2d 1336 (2d Cir. 1991).

170Id.

171Note that this ongoing monitoring is different from the case in another Hasidic neighborhood, where ongoing monitoring was not necessary because it was a closed sale. See Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756 (1973); see also supra note 105 and accompanying text.

172See supra Part I.

173However, some political division exists within the Hasidic sects—one rival Shomrim group has gone so far as to sue the City of New York for its relationship with another Shomrim group. See Amended Complaint and Demand for Jury Trial, Crown Heights Shomrim Volunteer Safety Patrol, Inc. v. City of N.Y., No. 11 CV 0329 (KAM)(JMA) (E.D.N.Y. Sept. 6, 2011). Although the case alleges the City of New York’s work with the Shmira transforms the Shmira into state actors, the argument is applicable here as clear political strife results from perceived unequal/non-neutral government funding. See also Shaer, supra note 6, at 65–66.

174See Witte, supra note 111, at 186 (“The emerging trend . . . is that the establishment clause . . . is becoming weaker and therefore less attractive to religious liberty litigants.”).

1752 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance & Procedure 1053 (5th ed. 2012).

176See id. at 1056–58.

177See id. at 1058.

178See Kilgannon, supra note 2 (noting that a police spokesman has called the Shomrim the “‘eyes and ears’” for the police); News Release, N.Y. State Senator Eric Adams, NYS Senator Eric Adams Joins Other Elected Officials and Community Leaders to Present Citations of Merit for Hatzolah and Shomrim (Jan. 24, 2008), available at http://www.nysenate.gov/news/nys-senator-eric-adams-joins-other-elected-officials-and-community-leaders-present-citations-me (noting that the Shomrim “serv[e] as vigilant eyes and ears”).

179The Fourteenth Amendment made the Constitution applicable to state and municipal actors. U.S. Const. amend. XIV, § 1 (“nor shall any State” (emphasis added)). Early on, in the Civil Rights Cases, 109 U.S. 3, 11 (1883), the Supreme Court clarified that the Constitution’s protections were not intended to apply to private actors, and the Supreme Court more recently affirmed that Congress cannot regulate private conduct using Section 5 of the Fourteenth Amendment. United States v. Morrison, 529 U.S. 598, 621 (2000).

180Charles L. Black, Jr., The Supreme Court, 1966 Term—Foreword: “State Action,” Equal Protection, and California’s Proposition 14, 81 Harv. L. Rev. 69, 95 (1967).

181Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 378 (1995) (quoting Edmonson v. Leesville Concrete Co., 500 U.S. 614, 632 (1991) (O’Connor, J., dissenting)) (internal quotation marks omitted).

182See Chemerinsky, supra note 141, at 507–39.

183See Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982).

184See Metzger, supra note 22, at 1370–73.

185This is the same test for “color of law” under § 1983. Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 n.2 (2001) (“If a defendant’s conduct satisfies the state-action requirement of the Fourteenth Amendment, the conduct also constitutes action ‘under color of state law’ for § 1983 purposes.” (quoting Lugar, 457 U.S. at 935)).

186Lugar, 457 U.S. at 937.

187The Shomrim violate the Equal Protection Clause because their discriminatory treatment of outsiders violates an individual’s right to equal treatment by the state. U.S. Const. amend. XIV, § 1 (“nor deny to any person within its jurisdiction the equal protection of the laws”). Although it is beyond the scope of this Comment, a court would consider whether the action was done through a classification, and whether the action met the appropriate level of scrutiny (in this case, likely strict scrutiny because of race). There is a violation of substantive due process because the Shomrim’s actions infringe on an individual’s fundamental right to be free from discrimination. See id. (“nor shall any State deprive any person of life, liberty, or property, without due process of law”).

188Cases often involve discussions of and fall under multiple different tests or standards. Chemerinsky, supra note 141, at 518. Chemerinsky also noted the Court is not always clear on which test it is using and discussing. Id.; see also Metzger, supra note 22, at 1412–13 (describing the factors considered and asserting the Court sometimes adopts formalistic and distinct “tests”).

189For the purposes of this analysis, ensconced under close nexus includes what some courts and scholars may otherwise call the “joint action” and “symbiotic relationship” tests.

190Edmonson v. Leesville Concrete Co., 500 U.S. 614, 615 (1991).

191A case is currently pending in the Eastern District of New York against the City of New York and one of the Shomrim groups under a state action theory. See Amended Complaint and Demand for Jury Trial, Crown Heights Shomrim Volunteer Safety Patrol, Inc. v. City of N.Y., No. 11 CV 0329 (KAM)(JMA) (E.D.N.Y. Sept. 6, 2011). The case was filed by a rival Shomrim group. For an interesting history of the Shomrim–Shmira rivalry in Crown Heights, see Shaer, supra note 6, at 101–11, 116–17.

192See, e.g., Elizabeth E. Joh, Conceptualizing the Private Police, 2005 Utah L. Rev. 573.

193Jack Wenik brought up the question of auxiliary police and block-watcher liability in a footnote. See Jack Wenik, Note, Forcing the Bystander to Get Involved: A Case for a Statute Requiring Witnesses to Report Crime, 94 Yale L.J. 1787, 1797 n.77 (1985). However, with the highly publicized murder and trial for the killing of Trayvon Martin, an African-American teenager by a neighborhood-watch member on patrol, questioning the liability of neighborhood-watch-style policing may be on the rise. See Sharon Finegan, Watching the Watchers: The Growing Privatization of Criminal Law Enforcement and the Need for Limits on Neighborhood Watch Associations, 8 U. Mass. L. Rev. 88 (2013).

194But see M. Rhead Enion, Note, Constitutional Limits on Private Policing and the State’s Allocation of Force, 59 Duke L.J. 519, 553 (2009). Enion argued certain “private police” forces, including residential security guards, should be considered state actors because they act as “arms of the state,” responding to a “public demand for order and security” by supplying force. Id.

195Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961) (quoting Kotch v. Bd. of River Port Pilot Comm’rs, 330 U.S. 552, 556 (1947)).

196Id.

197Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974).

198Marsh v. Alabama, 326 U.S. 501 (1946).

199Evans v. Newton, 382 U.S. 296 (1966).

200See, e.g., Smith v. Allwright, 321 U.S. 649 (1944). See generally 1 Martin A. Schwartz, Section 1983 Litigation: Claims & Defenses § 5.14(A) (4th ed. Supp. 2011).

201David A. Sklansky, The Private Police, 46 UCLA L. Rev. 1165, 1168 (1999).

202Evans, 382 U.S. at 301, 302.

203Sklansky, supra note 201, at 1188.

204Id. at 1225. If taken to its logical extreme, even the public police would not be considered government actors because the police were originally private. 1 Schwartz, supra note 200, § 5.14(A).

205Sklansky, supra note 201, at 1194. Sklansky asserted “if policing is not a public function, it is hard to imagine that much else is,” and asserted policing as a good test case for the vitality of the public function doctrine. Id. at 1259. He also argued the state action doctrine proves unable to distinguish private police from either public law enforcement or private citizenry. Id. at 1229.

206426 U.S. 833, 852 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985).

2072 Rotunda & Nowak, supra note 175, § 16.2. But see Evans, 382 U.S. at 302 (comparing a park that had been transferred from public to private control, to a “police department that traditionally serves the community”).

208378 U.S. 130, 135–36 (1964). It is not entirely clear how much weight this case still holds. The Court later “express[ed] no view” on whether a state could delegate police functions to private parties, thus “avoid[ing] the strictures of the Fourteenth Amendment.” Flagg Bros. v. Brooks, 436 U.S. 149, 163–64 (1978). But see id. at 172 n.8 (Stevens, J., dissenting) (“[I]t is clear that the maintenance of a police force is a unique sovereign function, and the delegation of police power to a private party will entail state action.”).

209Sklansky, supra note 201, at 1229–30.

210See Evans, 382 U.S. at 302 (looking at the character and purpose of a park as municipal, despite its private ownership); cf. Griffin, 378 U.S. at 135 (noting the guard was a state actor because he “purported to exercise . . . authority” when he arrested and instituted prosecutions against trespassers).

211See, e.g., People v. Luciani, 466 N.Y.S.2d 638 (Sup. Ct. 1983); Peter J. Gardner, Comment, Arrest and Search Powers of Special Police in Pennsylvania: Do Your Constitutional Rights Change Depending on the Officer’s Uniform?, 59 Temp. L.Q. 497 (1986).

212N.Y. Auxiliary Police Dep’t, Auxiliary Police Program Overview 10 (2008).

213Sklanksy, supra note 201, at 1228.

214Careers—Auxiliary Police, N.Y. Police Department, http://www.nyc.gov/html/nypd/html/careers/auxiliary_police.shtml (last visited June 18, 2013). While on duty, auxiliary police are considered city employees and receive workers compensation for on-duty related injuries. N.Y. Auxiliary Police Dep’t, supra note 212, at 18; N.Y.C. Admin. Code § 14–147 (2013), available at http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=$$ADC14-147$$@TXADC014-147+&LIST=LAW+&BROWSER=BROWSER+&TOKEN=53422701+&TARGET=VIEW.

215Shaer, supra note 6, at 73.

216See supra notes 57–58; see also N.Y. Auxiliary Police Dep’t, supra note 212, at 10.

217Uriel Heilman, Policing the Hassidim, Jerusalem Post, June 5, 2003, at 8 (quoting a commander at the 66th precinct as saying “‘I look at the Shomrim like they’re the NYPD’”).

218See, e.g., Cate Doty, New Yorkers Oppose Site of Islamic Center, Poll Finds, N.Y. Times City Room (Sept. 3, 2010, 9:19 AM), http://cityroom.blogs.nytimes.com/2010/09/03/new-yorkers-oppose-site-of-islamic-center-poll-finds/ (noting the longtime “close relationship” between the Shomrim and the local precinct).

219See, e.g., supra notes 62–68 and accompanying text.

220See supra notes 57–58.

221See supra notes 50–58 and accompanying text (describing and depicting the visual similarities between the Shomrim and the NYPD).

222Pinto, supra note 8; cf. On Roshhashana, Baltimore County Police Express Gratitude, Balt. Sun, Sept. 10, 2010, at A4 (including the Baltimore police chief crediting Shomrim for their work and contribution to the decline in crime). While this report refers to the Shomrim in Baltimore, it is likely parallel in New York and other areas where the Shomrim patrol.

223News Release, N.Y. State Senator Eric Adams, supra note 178.

224See, e.g., Assemblymember Jim Brennan’s Important Phone Numbers & Websites, http://assembly.state.ny.us/member_files/045/20110830/index.pdf (last visited June 18, 2013).

225Ari L. Goldman, The Talk of Williamsburg; Hasidic Enclave: A Step Back to Older Values, N.Y. Times, July 7, 1986, at B1 (noting the NYPD increases patrols on these days because “the Hasidim are likely to spend most of the day in synagogues or . . . out of town”).

226While the Shomrim do not patrol on the Sabbath, they do have a twenty-four-hour hotline.

227See Joh, supra note 192.

228Id. at 587.

229Although there is a valid argument that the Shomrim are client-driven, they are not looking at loss prevention, but crime prevention in aid of the state.

230See Chemerinsky, supra note 141.

231See generally 2 Rotunda & Nowak, supra note 175, at 1087–101.

232531 U.S. 288, 295 (2001) (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)).

233Id. at 295–96.

234Although the names for tests differ, each considers the same set of facts and circumstances in deciphering state action.

235Brentwood, 531 U.S. at 295–96.

236Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961).

237See supra Part III.A.1.

238Brentwood, 531 U.S. at 296.

239Id. at 296 (alteration in original) (quoting Evans v. Newton, 382 U.S. 296, 301 (1966)).

240Id. at 298.

241Id. at 299–301.

242Id. at 301.

243Id. This may be similar to what has been termed a “symbiotic relationship” in Burton v. Wilmington Parking Authority, 365 U.S. 715, 725 (1961). See 2 Rotunda & Nowak, supra note 175, § 16.4(b). While Burton is now rarely regarded as good law, it demonstrated another close relationship between the state and a private actor.

244457 U.S. 830, 843 (1982).

24549 F.3d 1442, 1453 (10th Cir. 1995).

246E.g., Pinto, supra note 8, at 10.

247See Brentwood, 531 U.S. at 300 (“There would be no recognizable Association, legal or tangible, without the public school officials . . . .”).

248See supra Part I.

249Goldman, supra note 225. The Shomrim do not patrol on Shabbat (Friday evenings and Saturdays) and other Jewish holidays. See id.

250Cf. Justin George, For 30 Years, Watching Out for Northwest, Balt. Sun, Nov. 30, 2012, at A1 (referring to the Shomrim in Baltimore).

251See Shaer, supra note 6, at 165–66; see also supra text accompanying note 66.

252See Shaer, supra note 6, at 32.

253Heilman, supra note 217. Additionally, the patrol members often aid the state by offering eyewitness or expert testimony in criminal cases, free of charge. Id.

254Id.

255Elizabeth Kadetsky, Turf Wars in Williamsburg: My Neighbor, My Enemy, 253 Nation 839, 840 (1991).

256Pinto, supra note 8, at 13.

257Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) (emphasis added).

258See id. (deciding that funding and state regulations did not turn nursing home decision into state action); Rendell-Baker v. Kohn, 457 U.S. 830 (1982) (finding no state action in discharge of employee despite private school’s state funding).

259See Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972) (finding the private club’s racial discrimination was not state action due to neutral licensing).

260Id. at 179.

261Id. at 178–79. However, the Supreme Court’s opinion in Moose Lodge focused on the fact that it could perceive little real harm done by the racially restrictive club. But cf. infra Part III.B.

262Kilgannon, supra note 2.

263See Div. of Licensing Servs., N.Y. Dep’t of State, Private Investigators, Bail Enforcement Agents, Watch, Guard or Patrol Agencies and Security Guards Licensing Law (2011).

264Rendell-Baker v. Kohn, 457 U.S. 830, 841–43 (1982).

265Id. at 841–42. But see id. at 849–50 (Marshall, J., dissenting) (“When an entity is not only heavily regulated and funded by the State, but also provides a service that the State is required to provide, there is a very close nexus with the State. Under these circumstances, it is entirely appropriate to treat the entity as an arm of the State.”).

266Id. at 841 (majority opinion).

267See 2 Rotunda & Nowak, supra note 175, § 16.4(c).

268See id.

269The court called the books “tangible aid in the form of textbooks.” Norwood v. Harrison, 413 U.S. 455, 464–65 (1973).

270Id.

271Id. at 464, 466.

272417 U.S. 556 (1974).

273Norwood, 413 U.S. at 465 (quoting Lee v. Macon Cnty. Bd. of Educ., 267 F. Supp. 458, 475–76 (M.D. Ala. 1967)) (internal quotation marks omitted).

274News Release, N.Y. State Senator Eric Adams, NYS Senator Eric Adams Holds a Press Conference to Donate Bullet Proof Vests to Members of the Boro Park Safety Patrol, in Response to Shooting of Three of the Group’s Members (Sept. 8, 2010), available at http://www.nysenate.gov/press-release/nys-senator-eric-adams-holds-press-conference-donate-bullet-proof-vests-members-boro-p.

275See supra Part I.

276457 U.S. 830 (1982). In Rendell-Baker, the Court found there was no state action in the discharge of an employee, despite the private school’s state funding.

277449 U.S. 24, 27−28 (1980).

278Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970) (quoting United States v. Price, 383 U.S. 787, 794 (1966)) (internal quotation marks omitted).

279Griffin v. Maryland, 378 U.S. 130, 135 (1964). Courts have also been more willing to find state action in private police who are deputized or made “special police” and given greater powers of arrest than an ordinary citizen. See, e.g., Hughes v. Meyer, 880 F.2d 967, 972 (7th Cir. 1989) (finding no state action when a Wisconsin Department of Natural Resources conservation warden’s acts were “functionally equivalent to that of any private citizen reporting to the police the details of an alleged criminal act”); United States v. Lima, 424 A.2d 113, 118 (D.C. 1980) (en banc); cf. United States v. McDougald, 350 A.2d 375, 378 (D.C. 1976) (noting “[t]he power of arrest . . . is the sole factor which distinguishes the holder of a special police commission from a private citizen,” but distinguishing the special officer at issue as being motivated by private interests). See generally William E. Ringel, Searches and Seizures, Arrests and Confessions § 2:4 (2012). However, while the Shomrim are not deputized, such a finding is not necessary for state action to exist. For instance, other considerations such as continuing ties to the police may be sufficient to show state action. See id. (noting that a private citizen’s actions in conjunction with police may be construed as state action for purposes of a civil rights action under 42 U.S.C. § 1983).

280481 F.3d 591, 599 (8th Cir. 2007).

281See supra Part I.B.

282See 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 1.8 (5th ed. 2012).

283See Hernandez v. Schwegmann Bros. Giant Supermarkets, 673 F.2d 771, 772 (5th Cir. 1982) (per curiam) (holding that no state authority was conveyed to the private actor because the arresting police officer made an independent “determination of cause to arrest”).

284Kilgannon, supra note 39. Police Commissioner Raymond W. Kelly stated a “‘longstanding issue with [the] Shomrim’” was their delay in police notification. Id.

285See generally 1 LaFave, supra note 282, § 1.8. Another issue, beyond the scope of this Comment, is whether evidence obtained through private citizens working with the police should be subject to the exclusionary rule. See id.

286Id. The California Supreme Court has held private police to be state actors subject to constitutional limitations due to the “increasing reliance placed upon private security personnel by local law enforcement authorities.” People v. Zelinski, 594 P.2d 1000, 1005 (Cal. 1979) (in bank).

287See supra Part III.A.1.

288See supra Part I.

289See, e.g., Heilman, supra note 217 (quoting a commander at the 66th precinct as saying “‘I look at the Shomrim like they’re the NYPD’”).

290See supra Part I.

291Cf. Kilgannon, supra note 39.

292For a running count of the Shomrim’s work catching “perps,” see for example, Yeshiva World News, http://www.boroparkscoop.com (last visited June 18, 2013).

293See, e.g., Jody Young Jakosa, Parsing Public from Private: The Failure of Differential State Action Analysis, 19 Harv. C.R.-C.L. L. Rev. 193, 208 (1984) (providing a hierarchy of state action standards).

294See, e.g., Chemerinsky, supra note 141, at 538.

295See, e.g., Michael L. Wells, Identifying State Actors in Constitutional Litigation: Reviving the Role of Substantive Context, 26 Cardozo L. Rev. 99, 110 (2004).

296See id. at 111. Wells additionally argued that ignoring substance leads to the confusing state action tests. Id. at 111–12.

297Henry J. Friendly, The Public–Private Penumbra—Fourteen Years Later, 130 U. Pa. L. Rev. 1289, 1291 (1982).

298See Wells, supra note 295, at 107 (“[T]he modern view distinguishing between state action and the substantive merits has become entrenched . . . . All the Justices seem to take it for granted.”).

299Sheila S. Kennedy, When Is Private Public? State Action in the Era of Privatization and Public–Private Partnerships, 11 Geo. Mason U. C.R. L.J. 203, 215 (2001).

300See, e.g., Jackson v. Metro. Edison Co., 419 U.S. 345, 373–74 (1974) (Marshall, J., dissenting); Adickes v. S.H. Kress & Co., 398 U.S. 144, 190–91 (1970) (Brennan, J., dissenting).

301Jakosa, supra note 293, at 194–97.

302See Kennedy, supra note 299, at 215 n.78. Many scholars have also posited that the state action doctrine was used during the Civil Rights Era when Congress was unable to enforce civil rights legislation. Thus, state action provided a useful tool. See, e.g., David A. Strauss, State Action After the Civil Rights Era, 10 Const. Comment. 409, 413 (1993).

303334 U.S. 1, 23 (1948). Many commentators cited the substantive-rights approach to explain the limited application of Shelley. See, e.g., Strauss, supra note 302, at 409, 413. Chemerinsky provided two case examples of state action where the government gave aid with the intent of undermining school desegregation. Chemerinsky, supra note 141, at 536 (citing Gilmore v. City of Montgomery, 417 U.S. 556, 568−69 (1974); Norwood v. Harrison, 413 U.S. 455, 464−65 (1973)).

304Chemerinsky, supra note 141, at 536.

305See 2 Rotunda & Nowak, supra note 175, § 16.3 (asserting the analysis in Moose Lodge No. 107 v. Irvis focused on whether any real harm was done discriminatorily).

306See generally Metzger, supra note 22. Metzger argued that “[p]rivate involvement in government is addressed primarily through the state action doctrine, which inquires whether, in a particular context, ostensibly private parties should be considered ‘state (or federal) actors.’” Id. at 1370.

307See, e.g., id.

308Id. at 1375.

309Id.

310See supra Part I.E.

311Metzger, supra note 22, at 1371.

312Id. at 1375.

313Id.

314See id.

315Id.

316A constitutional tort is an “action[] brought against government[] [and those fairly said to be government actors] . . . seeking damages for the violation of federal constitutional rights, particularly those arising under the Fourteenth Amendment and the Bill of Rights.” Sheldon H. Nahmod, Michael L. Wells & Thomas A. Eaton, Constitutional Torts 1 (3d ed. 2009).

317A plaintiff would probably sue for violations under the Equal Protection Clause, as well as the Due Process Clause, of the Fourteenth Amendment. U.S. Const. amend. XIV, § 1.

318The plaintiff would likely argue the Shomrim were acting pursuant to the government’s policy or custom, also under 28 U.S.C. § 1983.

319Metzger, supra note 22, at 1406.

320Id. at 1406–07.

321Id. at 1407–08.

322See id. at 1427.

323See supra notes 306–07 and accompanying text.

324See supra Part II.

325See supra Part II; see also Mitchell v. Helms, 530 U.S. 793, 794 (2000).

326 Cf. Kennedy, supra note 299, at 218 (suggesting contract monitoring in charitable choice religious social services might amount to “entanglement” under the Establishment Clause).

327“Congress shall make no law . . . prohibiting the free exercise thereof . . . .” U.S. Const. amend. I.

328Saperstein, supra note 15, at 1366–67.

329See 1 Kent Greenawalt, Religion and the Constitution: Free Exercise and Fairness 136–42 (2006). However, the free exercise argument may not be as large a hurdle, as there might be a compelling purpose to the law.

330One could argue that indirect funding, rather than direct funding, could lessen the problem; however, logistically it is unclear how one could indirectly fund the Shomrim or make the funding resultant from individual choice. While prison vouchers seem plausible, see, e.g., Volokh, supra note 123, at 988, police vouchers might be a little far-fetched.

331Cf. Fernanda Santos, Reverberations of a Baby Boom, N.Y. Times, Aug. 27, 2006, § 1, at 23 (noting that 62% of families live below the poverty line in Kiryas Joel, a Hasidic enclave).

332See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694 (2012); Emp’t Div. v. Smith, 494 U.S. 872 (1990). See generally 1 Greenawalt, supra note 329.

333See supra Intro. This argument may be extended to other common interest, but nonreligious, communities. For example, in gated communities, where residential associations are “fraught with potential for discrimination on the basis of race and class.” David J. Kennedy, Note, Residential Associations as State Actors: Regulating the Impact of Gated Communities on Nonmembers, 105 Yale L.J. 761, 768 (1995). Not only are streets privatized through judicial means, but also these communities frequently use security guards or private police. Id. at 771. Similar to the Shomrim policing Hasidic communities, “[a] black person who shows up in one of these places is likely to get busted” by the private police employed by the communities to keep them out. Id. (alteration in original) (internal quotation marks omitted). Scholars argue that residential associations may be transformed into state actors because they receive and utilize public resources, serve a public function, and have an interdependent relationship with local governments. See id. at 783–84; see also Angel M. Traub, Comment, The Wall Is Down, Now We Build More: The Exclusionary Effects of Gated Communities Demand Stricter Burdens Under the FHA, 34 J. Marshall L. Rev. 379, 393–94 & n.91 (2000).

334Steven K. Green, Religious Discrimination, Public Funding, and Constitutional Values, 30 Hastings Const. L.Q. 1, 47 (2002).

335Saperstein, supra note 15, at 1366.

336Id. at 1366–67.

337Metzger, supra note 22, at 1377.

338Recent spotlight from the media may make it especially imperative to further examine the Shomrim’s actions. See, e.g., Berger, supra note 7; Jen Chung, Photos: Liev Schreiber as Williamsburg Shomrim Officer, Woody Allen as a Pimp, Gothamist (Nov. 13, 2012, 3:17 PM), http://gothamist.com/2012/11/13/photos_liev_schreiber_as_williamsbu.php#photo-1 (showing Liev Schreiber playing a Brookyln Shomrim officer).

339Metzger, supra note 22, at 1377.

3402 Greenawalt, supra note 13, at 234.

341Kennedy, supra note 299, at 217.

Executive Managing Editor, Emory Law Journal. J.D., Emory University School of Law (2013); B.A., University of Virginia (2009). My sincerest gratitude goes to Professor Alexander Volokh, whose boundless knowledge and enthusiasm developed a random query into a substantive legal argument I never thought possible. I would like to thank the entire executive board of the Emory Law Journal for their tireless and impressive work this year; without them this would not be possible. Many thanks also go to Julia Hueckel for her extreme patience, helpful comments, and encouragement. Above all, I must extend my appreciation and thanks to my wonderful parents, who have provided me with unconditional love and support in every way possible throughout all of law school. Finally, I dedicate this Comment to my grandfather, Robert B. Hirsch, who taught me to love the law and question everything—including our religion.