Judicial Intervention in the Conduct of Private Associations: Bases for the Emerging Trend of Judicial Activism


The last century has seen a dramatic increase in the size and number of voluntary associationsL in the United States. These associations now encompass such diverse groups as bankers and bar owners, farmers and cemetery managers, doctors and athletes, to name only a few. Understandably, the expanding presence of such voluntary groups has had its concomitant effect, in their detrimental impact upon the lives of members and nonmembers alike.

Although it is impossible to catalogue exhaustively the private interests which may be adversely affected by the actions of these groups, one can include an individual’s mental or physical well-being, social relations, reputation, intellectual development, religious activities, access to forums for the expression of beliefs, property interests, ability to earn a living and political advocacy.  In addition, a private association may also have a serious impact upon public interests, when, for example, it controls the discharge of a public office, forbids members to join the armed forces, to testify against the group’s interests, or to advocate the enactment of legislation which the group opposes.

Given the great potential for conflicts generated by the conduct of voluntary associations, it is not surprising that serious questions have arisen as to the desirability and propriety of judicial interference in such associations’ affairs. Recent cases have evidenced a growing tendency by both federal and state courts to combine and apply the previously distinct, but for the most part ineffective, legal concepts of public policy and state action to private conduct. For while these concepts have been of fundamental importance in other areas of law, they have had little application in this area.

This Note will examine the growing willingness of the courts to interfere in associational conduct by considering, first, the partial collapse of the long established “doctrine of private associations” and, second, the constitutional developments that have found state action in private group conduct and thus have subjected it to the proscriptions of the fourteenth amendment. Particular attention will be directed to cases involving high school athletic associations and the medical profession, since it is in these two areas that the courts have been most active.

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