State Action Doctrine

Introduction

The state action doctrine limits the application of most constitutional rights to conduct by the government, not by private individuals or entities. The Fourteenth Amendment provides that “No State shall” deprive any person of life, liberty, or property without due process or deny equal protection. The Thirteenth Amendment and certain other constitutional provisions apply to private conduct, but the Fourteenth Amendment and the Bill of Rights (except for the Thirteenth Amendment’s prohibition on slavery) require state action — conduct attributable to the government.

The state action doctrine reflects the constitutional structure of limited government. The Constitution establishes the framework for governmental authority and restricts government power; it does not generally regulate private conduct. Private discrimination and private infringements of liberty are regulated by statutory law, including civil rights laws, rather than by the Constitution directly.

The Public/Private Distinction

The state action doctrine distinguishes between public action — conduct by government officials, agencies, and entities — and private action — conduct by individuals, corporations, and other non-governmental actors. Only public action is subject to the Fourteenth Amendment’s limitations. Private conduct, even when discriminatory or arbitrary, does not violate the Constitution unless it meets the tests for state action.

The public/private distinction serves several functions. It preserves a sphere of private autonomy free from constitutional regulation, limits the scope of constitutional litigation, and respects the vertical division of authority between federal and state governments. The distinction also recognizes that private actors are generally regulated by statutory law rather than constitutional commands.

The Civil Rights Cases (1883)

The Civil Rights Cases (1883) established the state action doctrine as a fundamental limitation on Fourteenth Amendment enforcement. The Court struck down the Civil Rights Act of 1875, which prohibited racial discrimination in public accommodations, holding that the Fourteenth Amendment prohibits only state action, not private discrimination. Justice Bradley’s opinion reasoned that the amendment operates only upon state authority and does not authorize Congress to regulate private conduct.

The decision had a devastating effect on Reconstruction-era civil rights, as it invalidated federal efforts to combat private discrimination in public accommodations, transportation, and other settings. Congress would not again attempt to regulate private discrimination until the Civil Rights Act of 1964, which was based primarily on the Commerce Clause rather than the Fourteenth Amendment.

When Private Action Is State Action

The Supreme Court has recognized several circumstances in which seemingly private conduct constitutes state action subject to constitutional limitations. These exceptions ensure that the state action doctrine does not permit the government to evade constitutional constraints by delegating functions to private actors.

The public function test treats private conduct as state action when the private actor exercises powers traditionally exclusively reserved to the state. In Marsh v. Alabama (1946), the Court held that a company-owned town could not restrict First Amendment rights because the company was performing the traditional governmental function of operating a town.

The entwinement test examines whether the state is so closely involved with the private actor that the private conduct should be attributed to the state. In Brentwood Academy v. Tennessee Secondary School Athletic Association (2001), the Court held that a state athletic association was a state actor because public schools were pervasively entwined with the association’s operations.

The compulsion test attributes private conduct to the state when the government coerces or significantly encourages the private action. In Adickes v. S.H. Kress & Co. (1970), the Court held that a private restaurant could be liable for refusing service to a white teacher accompanying African American students if the restaurant acted under compulsion of a local custom enforced by police.

The joint participation test treats private actors as state actors when they willfully participate in joint activity with state officials. In Lugar v. Edmondson Oil Co. (1982), the Court held that a private creditor who used state prejudgment attachment procedures engaged in state action because the creditor acted together with the state to deprive the debtor of property.

The Public Function Test

The public function test has been narrowly construed. The Court held in Flagg Brothers, Inc. v. Brooks (1978) that a private warehouseman’s sale of stored goods under state law was not state action because the resolution of private disputes is not an exclusively public function. The Court held in Rendell-Baker v. Kohn (1982) that a private school receiving public funding was not a state actor because education is not an exclusively public function.

The narrowing of the public function test reflects the Court’s reluctance to expand constitutional regulation to private conduct. The test requires that the function performed be both traditionally and exclusively governmental, a standard that few private activities satisfy.

The Symbiotic Relationship Test

In Burton v. Wilmington Parking Authority (1961), the Court held that a privately owned restaurant leasing space in a public building was engaged in state action. The Court emphasized the symbiotic relationship between the private lessee and the public lessor, noting that the public entity benefited from the lease and that the restaurant’s discrimination was thus attributable to the state.

The symbiotic relationship test has been limited by subsequent cases. In Moose Lodge No. 107 v. Irvis (1972), the Court held that a private club’s receipt of a liquor license from the state did not create the close nexus necessary for state action. The Court required more than mere government regulation or licensing to convert private conduct into state action.

State Inaction

The state action doctrine generally does not impose an affirmative obligation on the state to protect individuals from private harm. In DeShaney v. Winnebago County Department of Social Services (1989), the Court held that the state was not liable under the Due Process Clause for failing to protect a child from abuse by his father, even though social workers had received reports of abuse. The Court held that the Due Process Clause protects against state action, not state inaction.

The state may have an affirmative duty to protect individuals in certain circumstances, including when the state has taken the person into custody or when a special relationship exists. In Estelle v. Gamble (1976), the Court held that the state has a duty to provide medical care to prisoners. In Youngberg v. Romeo (1982), the Court held that the state has a duty to provide reasonable safety to involuntarily committed mental patients.

Statutory Regulation of Private Conduct

Although the Constitution’s state action requirement limits direct constitutional protections against private conduct, Congress has enacted extensive statutory protections. The Civil Rights Act of 1964 prohibits discrimination in public accommodations and employment, based primarily on the Commerce Clause. The Fair Housing Act prohibits housing discrimination. The Americans with Disabilities Act prohibits disability discrimination.

These statutes regulate private conduct that the Constitution does not directly reach, demonstrating that the state action doctrine limits constitutional remedies but does not prevent legislative protection of individual rights.

Conclusion

The state action doctrine limits the application of the Fourteenth Amendment and most Bill of Rights provisions to governmental conduct, preserving the distinction between public and private action. The doctrine reflects the constitutional structure of limited government and the principle that the Constitution restricts government power rather than regulating all private conduct. The exceptions to the state action doctrine — public function, entwinement, compulsion, and joint participation — ensure that the government cannot evade constitutional constraints by delegating functions to private actors. The state action doctrine remains a fundamental limitation on constitutional litigation, requiring plaintiffs alleging constitutional violations to demonstrate that the challenged conduct is fairly attributable to the state.