Government Contractors’ Liability for Constitutional Torts

• Author: Stefanie A. Lindquist,Michael Bitzer
• DOI: 10.1177/0734371X0202200305
• Published date: 01 September 2002
• Date: 01 September 2002

LEGAL BRIEF
REVIEW OF PUBLIC PERSONNEL ADMINISTRATION / Fall 2002
Lindquist, Bitzer / LEGAL BRIEF
Government Contractors’ Liability
for Constitutional Torts
The Legal Implications of Privatization
STEFANIE A. LINDQUIST
MICHAEL BITZER
University of Georgia
Inrecentdecades,publicadministratorshavewitnessedaburgeoningtrend
toward privatization of government services. At the same time, however,
existing legal doctrines and principles enunciated in precedent and statutes
have sometimes failed to accommodate the privatization movement. In this
brief, we address several legal issues raised by privatization concerning the
scope of private contractors’ constitutional tort liability. Understanding the
differences in public and private service providers’ liability may assist public
managers faced with the decision to privatize.
In recent years, governments have come to rely extensively on the private
sector to perform traditional public functions. For example, governments
have contracted with private entities to provide public school education,
mental health care facilities, detention and correctional facilities, janitorial
services and refuse collection, waste water treatment, and social services.
Although viewed in light of potential cost-saving opportunities, the privat-
ization decision has blurred the line between the public and private spheres
and raises important philosophical issues related to private contractors per-
forming public functions (Donahue, 1989). At the same time, existing legal
doctrines and principles enunciated in precedent and statutes often fail to
accommodate the trend toward privatization of governmental services.
How should courts respond to such innovations in public management?
One area where this question has been raised involves the constitutional
tort liability of private firms and individuals who contract with federal,
state, and local governments to deliver essential public services.
In this note, we discuss several related questions concerning the scope of
a private party’s constitutional tort liability, including whether private indi-
Review of Public Personnel Administration, Vol. 22, No. 3 Fall 2002 241-245
© 2002 Sage Publications
241



rop.sagepub.com
Downloaded from
at SAGE Publications on December 8, 2012

---

242
REVIEW OF PUBLIC PERSONNEL ADMINISTRATION / Fall 2002
viduals and corporations are subject to suits for monetary damages for con-
stitutional violations and whether such...