The Fourteenth Amendment, by its terms, limits discrimination only by governmental entities, not by private parties.1 As the Court has noted,
the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful.2 Although state action requirements also apply to other provisions of the Constitution3 and to federal governmental actions,4 the doctrine is most often associated with the application of the Equal Protection Clause to the states.5
Certainly, an act passed by a state legislature that directs a discriminatory result is state action and would violate the first section of the Fourteenth Amendment.6 In addition, acts by other branches of government
by whatever instruments or in whatever modes that action may be taken can result in a finding of
state action.7 But the difficulty for the Court has been when the conduct complained of is not so clearly the action of a state. For instance, is it state action when a minor state official’s act was not authorized or perhaps was even forbidden by state law? What if a private party engages in discrimination while in a special relationship with governmental authority?
The vital requirement is State responsibility, Justice Frankfurter once wrote,
that somewhere, somehow, to some extent, there be an infusion of conduct by officials, panoplied with State power, into any scheme to deny protected rights.8
The state action doctrine is not just a textual interpretation of the Fourteenth Amendment, but may also serve the purposes of federalism. Thus, following the Civil War, when the Court sought to reassert states’ rights, it imposed a rather rigid state action standard, limiting the circumstances under which discrimination suits could be pursued. During the civil rights movement of the 1950s and 1960s, however when almost all state action contentions were raised in a racial context, the Court generally found the presence of state action. As it grew more sympathetic to federalism concerns in the late 1970s and 1980s, the Court began to reassert a strengthened state action doctrine, primarily but hardly exclusively in nonracial cases.9
Careful adherence to the ‘state action’ requirement preserves an area of individual freedom by limiting the reach of federal law and federal judicial power. It also avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed. A major consequence is to require the courts to respect the limits of their own power as directed against state governments and private interests. Whether this is good or bad policy, it is a fundamental fact of our political order.10
Operation of the state action doctrine was critical in determining whether school systems were segregated unconstitutionally by race. The original Brown cases as well as many subsequent cases arose in the context of statutorily mandated separation of the races, and therefore the finding of state action occasioned no controversy.11 In the South, the aftermath of the case more often involved disputes over which remedies were needed to achieve a unitary system than it did the requirements of state action.12 But if racial segregation is not the result of state action in some aspect, then its existence is not subject to constitutional remedy.13 Distinguishing between the two situations has occasioned much controversy.
For instance, in a case arising from a Denver, Colorado school system in which no statutory dual system had ever been imposed, the Court restated the obvious principle that de jure racial segregation caused by
intentionally segregative school board actions is to be treated as if it had been mandated by statute, and is to be distinguished from de facto segregation arising from actions not associated with the state.14 In addition, when it is proved that a meaningful portion of a school system is segregated as a result of official action, the responsible agency must then bear the burden of proving that other school segregation within the system is adventitious and not the result of official action.15 Moreover, the Court has also apparently adopted a rule that if it can be proved that at some time in the past a school board has purposefully maintained a racially separated system, a continuing obligation to dismantle that system can devolve upon the agency so that so that subsequent facially neutral or ambiguous school board policies can form the basis for a judicial finding of intentional discrimination.16
Different results follow, however, when inter-district segregation is an issue. Disregard of district lines is permissible by a federal court in formulating a desegregation plan only when it finds an inter-district violation.
Before the boundaries of separate and autonomous school districts may be set aside by consolidating the separate units for remedial purposes by imposing a cross-district remedy, it must first be shown that there has been a constitutional violation within one district that produces a significant segregative effect in another district. Specifically it must be shown that racially discriminatory acts of the state or local school districts, or of a single school district, have been a substantive cause of inter-district segregation.17 The de jure/de facto distinction is thus well established in school cases and is firmly grounded upon the
state action language of the Fourteenth Amendment.
It has long been established that the actions of state officers and agents are attributable to the state. Thus, application of a federal statute imposing a criminal penalty on a state judge who excluded black citizens from jury duty was upheld as within congressional power under the Fourteenth Amendment; the judge’s action constituted state action even though state law did not authorize him to select the jury in a racially discriminatory manner.18 The fact that the
state action category is not limited to situations in which state law affirmatively authorizes discriminatory action was made clearer in Yick Wo v. Hopkins,19 in which the Court found unconstitutional state action in the discriminatory administration of an ordinance that was fair and non-discriminatory on its face. Not even the fact that the actions of the state agents are illegal under state law makes the action unattributable to the state for purposes of the Fourteenth Amendment.
Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken ‘under color of’ state law.20 When the denial of equal protection is not commanded by law or by administrative regulation but is nonetheless accomplished through police enforcement of
custom21 or through hortatory admonitions by public officials to private parties to act in a discriminatory manner,22 the action is state action. In addition, when a state clothes a private party with official authority, that private party may not engage in conduct forbidden the state.23
Beyond this are cases where a private individual discriminates, and the question is whether a state has encouraged the effort or has impermissibly aided it.24 Of notable importance and a subject of controversy since it was decided is Shelley v. Kraemer.25 There, property owners brought suit to enforce a racially restrictive covenant, seeking to enjoin the sale of a home by white sellers to black buyers. The covenants standing alone, Chief Justice Vinson said, violated no rights protected by the Fourteenth Amendment.
So long as the purposes of those agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been no action by the State and the provisions of the Amendment have not been violated. However, this situation is to be distinguished from where
the purposes of the agreements were secured only by judicial enforcement by state courts of the restrictive terms of the agreements.26 Establishing that the precedents were to the effect that judicial action of state courts was state action, the Court continued to find that judicial enforcement of these covenants was forbidden.
The undisputed facts disclose that petitioners were willing purchasers of properties upon which they desire to establish homes. The owners of the properties were willing sellers; and contracts of sale were accordingly consummated. . . .27
Arguments about the scope of Shelley began immediately. Did the rationale mean that no private decision to discriminate could be effectuated in any manner by action of the state, as by enforcement of trespass laws or judicial enforcement of discrimination in wills? Or did it rather forbid the action of the state in interfering with the willingness of two private parties to deal with each other? Disposition of several early cases possibly governed by Shelley left this issue unanswered.28 But the Court has experienced no difficulty in finding that state court enforcement of common-law rules in a way that has an impact upon speech and press rights is state action and triggers the application of constitutional rules.29
It may be that the substantive rule that is being enforced is the dispositive issue, rather than the mere existence of state action. Thus, in Evans v. Abney,30 a state court, asked to enforce a discriminatory stipulation in a will that property devised to a city for use as a public park could be used only by
white people, ruled that the city could not operate the park in a segregated fashion. Instead of striking the segregation requirement from the will, however, the court instead ordered return of the property to the decedent’s heirs, inasmuch as the trust had failed. The Supreme Court held the decision permissible, inasmuch as the state court had merely carried out the testator’s intent with no racial motivation itself, and distinguished Shelley on the basis that African Americans were not discriminated against by the reversion, because everyone was deprived of use of the park.31
The case of Reitman v. Mulkey32 was similar to Shelley in both its controversy and the uncertainty of its rationale. In Reitman, the Court struck down an amendment to the California Constitution that prohibited the state and its subdivisions and agencies from forbidding racial discrimination in private housing. The Court, finding the provision to deny equal protection of the laws, appeared to ground its decision on either of two lines of reasoning. First was that the provision constituted state action to impermissibly encourage private racial discrimination. Second was that the provision made discriminatory racial practices immune from the ordinary legislative process, and thus impermissibly burdened minorities in the achievement of legitimate aims.33 In a subsequent case, Hunter v. Erickson,34 the latter rationale was used in a unanimous decision voiding an Akron ordinance, which suspended an
open housing ordinance and provided that any future ordinance regulating transactions in real property
on the basis of race, color, religion, national origin or ancestry must be submitted to a vote of the people before it could become effective.35
Two later decisions involving state referenda on busing for integration confirm that the condemning factor of Mulkey and Hunter was the imposition of barriers to racial amelioration legislation.36 Both cases agree that
the simple repeal or modification of desegregation or antidiscrimination laws, without more, never has been viewed as embodying a presumptively invalid racial classification.37 It is thus not impermissible merely to overturn a previous governmental decision, or to defeat the effort initially to arrive at such a decision, simply because the state action may conceivably encourage private discrimination.
In other instances in which the discrimination is being practiced by private parties, the question essentially is whether there has been sufficient state involvement to bring the Fourteenth Amendment into play.38 There is no clear formula.
Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.39 State action has been found in a number of circumstances. The
White Primary was outlawed by the Court not because the party’s discrimination was commanded by statute but because the party operated under the authority of the state and the state prescribed a general election ballot made up of party nominees chosen in the primaries.40 Although the City of Philadelphia was acting as trustee in administering and carrying out the will of someone who had left money for a college, admission to which was stipulated to be for white boys only, the city was held to be engaged in forbidden state action in discriminating against black applicants in admission.41 When state courts on petition of interested parties removed the City of Macon as trustees of a segregated park that had been left in trust for such use in a will, and appointed new trustees in order to keep the park segregated, the Court reversed, finding that the City was still inextricably involved in the maintenance and operation of the park.42
In a significant case in which the Court explored a lengthy list of contacts between the state and a private corporation, it held that the lessee of property within an off-street parking building owned and operated by a municipality could not exclude African Americans from its restaurant. The Court emphasized that the building was publicly built and owned, that the restaurant was an integral part of the complex, that the restaurant and the parking facilities complemented each other, that the parking authority had regulatory power over the lessee, and that the financial success of the restaurant benefitted the governmental agency. The
degree of state participation and involvement in discriminatory action, therefore, was sufficient to condemn it.43
The question arose, then, what degree of state participation was
significant? Would licensing of a business clothe the actions of that business with sufficient state involvement? Would regulation? Or provision of police and fire protection? Would enforcement of state trespass laws be invalid if it effectuated discrimination? The
sit-in cases of the early 1960s presented all these questions and more but did not resolve them.44 The basics of an answer came in Moose Lodge No. 107 v. Irvis,45 in which the Court held that the fact that a private club was required to have a liquor license to serve alcoholic drinks and did have such a license did not bar it from excluding black patrons. It denied that private discrimination became constitutionally impermissible
if the private entity receives any sort of benefit or service at all from the State, or if it is subject to state regulation in any degree whatever, since any such rule would eviscerate the state action doctrine. Rather,
where the impetus for the discrimination is private, the State must have ‘significantly involved itself with invidious discrimination.’46 Moreover, although the state had extensive powers to regulate in detail the liquor dealings of its licensees,
it cannot be said to in any way foster or encourage racial discrimination. Nor can it be said to make the State in any realistic sense a partner or even a joint venturer in the club’s enterprise.47 And there was nothing in the licensing relationship here that approached
the symbiotic relationship between lessor and lessee that the Court had found in Burton.48
The Court subsequently made clear that governmental involvement with private persons or private corporations is not the critical factor in determining the existence of
state action. Rather,
the inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.49 Or, to quote Judge Friendly, who first enunciated the test this way, the
essential point is
that the state must be involved not simply with some activity of the institution alleged to have inflicted injury upon a plaintiff but with the activity that caused the injury. Putting the point another way, the state action, not the private action, must be the subject of the complaint.50 Therefore, the Court found no such nexus between the state and a public utility’s action in terminating service to a customer. Neither the fact that the business was subject to state regulation, nor that the state had conferred in effect a monopoly status upon the utility, nor that in reviewing the company’s tariff schedules the regulatory commission had in effect approved the termination provision (but had not required the practice, had
not put its own weight on the side of the proposed practice by ordering it)51 operated to make the utility’s action the state’s action.52 Significantly tightening the standard further against a finding of
state action, the Court asserted that plaintiffs must establish not only that a private party
acted under color of the challenged statute, but also that its actions are properly attributable to the State. . . .53 And the actions are to be attributable to the state apparently only if the state compelled the actions and not if the state merely established the process through statute or regulation under which the private party acted.
Thus, when a private party, having someone’s goods in his possession and seeking to recover the charges owned on storage of the goods, acts under a permissive state statue to sell the goods and retain his charges out of the proceeds, his actions are not governmental action and need not follow the dictates of the Due Process Clause.54 Or, where a state workers' compensation statute was amended to allow, but not require, an insurer to suspend payment for medical treatment while the necessity of the treatment was being evaluated by an independent evaluator, this action was not fairly attributable to the state, and thus pre-deprivation notice of the suspension was not required.55 In the context of regulated nursing home situations, in which the homes were closely regulated and state officials reduced or withdrew Medicaid benefits paid to patients when they were discharged or transferred to institutions providing a lower level of care, the Court found that the actions of the homes in discharging or transferring were not thereby rendered the actions of the government.56
In a few cases, the Court has indicated that discriminatory action by private parties may be precluded by the Fourteenth Amendment if the particular party involved is exercising a
public function.57 For instance, in Marsh v. Alabama,58 a Jehovah’s Witness had been convicted of trespass after passing out literature on the streets of a company-owned town, but the Court reversed. It is not entirely clear from the Court's opinion what it was that made the privately owned town one to which the Constitution applied. In essence, it appears to have been that the town
had all the characteristics of any other American town and that it was
like a state.
The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.59 A subsequent attempt to extend Marsh to privately owned shopping centers was at first successful, but was soon turned back, resulting in a sharp curtailment of the
public function doctrine.60
Attempts to apply this theory to other kinds of private conduct, such as operation of private utilities,61 use of permissive state laws to secure property claimed to belong to creditors,62 maintaining schools for
problem children referred by public institutions,63 provision of workers’ compensation coverage by private insurance companies,64 and operation of nursing homes in which patient care is almost all funded by public resources,65 proved unavailing. The question is not
whether a private group is serving a ‘public function.’. . . That a private entity performs a function which serves the public does not make its acts state action.66The
public function doctrine is to be limited to a delegation of
a power 'traditionally exclusively reserved to the State.'67
Public function did play an important part, however, in the Court’s finding state action in the exercise of peremptory challenges in jury selection by non-governmental parties. Using tests developed in an earlier case involving garnishment and attachment,68 the Court found state action in the racially discriminatory use of such challenges during voir dire in a civil case.69 The Court first asked
whether the claimed constitutional deprivation resulted from the exercise of a right or privilege having its source in state authority, and then
whether the private party charged with the deprivation could be described in all fairness as a state actor. In answering the second question, the Court considered three factors:
the extent to which the actor relies on governmental assistance and benefits, whether the actor is performing a traditional governmental function, and whether the injury caused is aggravated in a unique way by the incidents of governmental authority.70 There was no question that the exercise of peremptory challenges derives from governmental authority (either state or federal, as the case may be); exercise of peremptory challenges is authorized by law, and the number is limited. Similarly, the Court easily concluded that private parties exercise peremptory challenges with the
significant assistance of the court.
In addition, jury selection was found to be a traditional governmental function: the jury
is a quintessential governmental body, having no attributes of a private actor, and it followed, so the Court majority believed, that selection of individuals to serve on that body is also a governmental function whether or not it is delegated to or shared with private individuals.71 Finally, the Court concluded that
the injury caused by the discrimination is made more severe because the government permits it to occur within the courthouse itself.72 Dissenting Justice O’Connor complained that the Court was wiping away centuries of adversary practice in which
unrestrained private choice has been recognized in exercise of peremptory challenges;
[i]t is antithetical to the nature of our adversarial process, the Justice contended,
to say that a private attorney acting on behalf of a private client represents the government for constitutional purposes.73
The Court soon applied these same principles to hold that the exercise of peremptory challenges by the defense in a criminal case also constitutes state action,74 even though in a criminal case it is the government and the defendant who are adversaries. The same generalities apply with at least equal force: there is overt and significant governmental assistance in creating and structuring the process, a criminal jury serves an important governmental function and its selection is also important, and the courtroom setting intensifies harmful effects of discriminatory actions. An earlier case75 holding that a public defender was not a state actor when engaged in general representation of a criminal defendant was distinguished, with the Court emphasizing that
exercise of a peremptory challenge differs significantly from other actions taken in support of a defendant’s defense, because it involves selection of persons to wield governmental power.76
Previously, the Court’s decisions with respect to state
involvement in the private activities of individuals and entities raised the question whether financial assistance and tax benefits provided to private parties would so clothe them with state action that discrimination by them and other conduct would be subject to constitutional constraints. Many lower courts had held state action to exist in such circumstances.77 However the question might have been answered under prior Court holdings, it is evident that the more recent cases would not generally support a finding of state action in these cases. In Rendell-Baker v. Kohn,78 a private school received
problem students referred to it by public institutions, it was heavily regulated, and it received between 90 and 99% of its operating budget from public funds. In Blum v. Yaretsky,79 a nursing home had practically all of its operating and capital costs subsidized by public funds and more than 90% of its residents had their medical expenses paid from public funds; in setting reimbursement rates, the state included a formula to assure the home a profit. Nevertheless, in both cases the Court found that the entities remained private, and required plaintiffs to show that as to the complained of actions the state was involved, either through coercion or encouragement.80
That programs undertaken by the State result in substantial funding of the activities of a private entity is no more persuasive than the fact of regulation of such an entity in demonstrating that the State is responsible for decisions made by the entity in the course of its business.81
In the social welfare area, the Court has drawn a sharp distinction between governmental action subject to substantive due process requirements, and governmental inaction, not so constrained. There being
no affirmative right to governmental aid, the Court announced in DeShaney v. Winnebago County Social Services Department82 that
as a general matter, . . . a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause. Before there can be state involvement creating an affirmative duty to protect an individual, the Court explained, the state must have taken a person into its custody and held him there against his will so as to restrict his freedom to act on his own behalf. Thus, although the Court had recognized due process violations for failure to provide adequate medical care to incarcerated prisoners,83 and for failure to ensure reasonable safety for involuntarily committed mental patients,84 no such affirmative duty arose from the failure of social services agents to protect an abused child from further abuse from his parent. Even though possible abuse had been reported to the agency and confirmed and monitored by the agency, and the agency had done nothing to protect the child, the Court emphasized that the actual injury was inflicted by the parent and
did not occur while [the child] was in the State’s custody.85 Although the state may have incurred liability in tort through the negligence of its social workers,
[not] every tort committed by a state actor [is] a constitutional violation.86
[I]t is well to remember . . . that the harm was inflicted not by the State of Wisconsin, but by [the child’s] father.87
Judicial inquiry into the existence of
state action may lead to different results depending on what remedy is sought to be enforced. While cases may be brought against a private actor to compel him to halt his discriminatory action, one could just as readily bring suit against the government to compel it to cease aiding the private actor in his discriminatory conduct. Enforcing the latter remedy might well avoid constitutional issues that an order directed to the private party would raise.88 In either case, however, it must be determined whether the governmental involvement is sufficient to give rise to a constitutional remedy. In a suit against the private party it must be determined whether he is so involved with the government as to be subject to constitutional restraints, while in a suit against the government agency it must be determined whether the government’s action
impermissibly fostered the private conduct.
Thus, in Norwood v. Harrison,89 the Court struck down the provision of free textbooks by a state to racially segregated private schools (which were set up to avoid desegregated public schools), even though the textbook program predated the establishment of these schools.
[A]ny tangible state assistance, outside the generalized services government might provide to private segregated schools in common with other schools, and with all citizens, is constitutionally prohibited if it has ‘a significant tendency to facilitate, reinforce, and support private discrimination.’. . . The constitutional obligation of the State requires it to steer clear, not only of operating the old dual system of racially segregated schools, but also of giving significant aid to institutions that practice racial or other invidious discriminations.90 And in a subsequent case, the Court approved a lower court order that barred the city from permitting exclusive temporary use of public recreational facilities by segregated private schools because that interfered with an outstanding order mandating public school desegregation. But it remanded for further factfinding with respect to permitting nonexclusive use of public recreational facilities and general government services by segregated private schools so that the district court could determine whether such uses
involve government so directly in the actions of those users as to warrant court intervention on constitutional grounds.91 The lower court was directed to sift facts and weigh circumstances on a case-by-case basis in making determinations.92
It should be noted, however, that, without mentioning these cases, the Court has interposed a potentially significant barrier to use of the principle set out in them. In a 1976 decision, which it has since expanded, it held that plaintiffs, seeking disallowal of governmental tax benefits accorded to institutions that allegedly discriminated against complainants and thus involved the government in their actions, must show that revocation of the benefit would cause the institutions to cease the complained-of conduct.93