Class 3: State Action Doctrine - Jan. 17 Flashcards
What is the state-action doctrine? (Q)
Under the state-action doctrine, the Constitution generally protects individual rights against infringement by state actors and not private actors. Congress’s powers to enforce constitutional amendments (and the amendments themselves) generally apply only to government entities.
What was the holding of The Civil Rights Cases: United States v. Stanley (1883)? (Evans)
Congress does not have power under the Thirteenth or Fourteenth amendment to enact provisions of the Civil Rights Act of 1875 prohibiting discrimination in public accommodations.
Which constitutional amendment protects against actions by private entities? (Q)
The Thirteenth Amendment’s prohibition against slavery applies equally to government and private actors. When Congress exercises its authority to enforce the amendment’s prohibition against slavery, it can regulate both government and private entities. The amendment is one of the major exceptions to the state-action doctrine.
What is the public-function exception to the state-action doctrine? (Q)
Under the public-function exception to the state-action doctrine, the Constitution may bar action by private entities that perform a public function involving the exercise of powers traditionally and exclusively reserved to the government. However, the mere fact that a private entity performs a function that serves the public or that provides a public benefit does not render the public-function exception applicable.
In general, the exception encompasses a narrow category of functions, such as selecting candidates for general election.
If a state commands private action, does that serve as state action for constitutional purposes? (Q)
Yes. When private action is compelled by the state, such that the private actor has no choice but to engage in the challenged conduct, that suffices to show state action for constitutional purposes. The key question is whether the private entity had a choice in acting.
What is the nexus test for evaluating when private conduct is state action for constitutional purposes? (Q)
Under the nexus test, a sufficiently close nexus or connection between the state and the challenged action of a regulated private entity can serve as state action for constitutional purposes. Courts have evaluated a variety of factors, including:
state regulation of the private entity,
public funding of a private entity,
private use of public property,
minor presence of public officials on a private entity’s board,
mere approval or acquiescence of the state in the challenged action of the private entity; and,
utilization of public services by private entities.
None of these factors alone will suffice to show a sufficiently close nexus. However, in combination, these factors may be sufficient for a finding of state action. State encouragement or facilitation of challenged private conduct through these factors must be significant or substantial to support a state action finding.
PERCEPTION
What is the symbiotic relationship exception to the state action doctrine? (Q)
Under the symbiotic relationship exception to the state action doctrine, a private entity’s challenged action is considered state action for purposes of a constitutional challenge when the state has so far insinuated itself into a position of interdependence with the private actor that it must be recognized as a joint participant in the challenged conduct. This exception focuses on the interrelationship between the state and the private entity, particularly with respect to any mutual benefits they receive from the relationship.
Under what circumstances does private conduct become so entwined with the government that its action is attributable to the state for constitutional purposes? (Q)
Under the entwinement exception to the state action doctrine, private conduct may become so entwined with governmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed upon state action. For example, if the state exerts significant control over a private entity’s workings through the board membership of public officials, the government becomes so entwined in the management of the private entity that the entity’s action is state action, not private action, for constitutional purposes.
Is a private entity controlled by the government a state actor for constitutional purposes? (Q)
Yes. The private incorporation of an entity will not categorically render its actions private, when the entity is wholly controlled by the government or an agency of the government.
Under what circumstances may a litigant challenge the actions of a private entity on constitutional grounds, even if that entity is not performing a public function? (Q)
In addition to the public function exception, the Supreme Court has provided the following scenarios that may suffice to show state action:
the challenged private act resulted from the state’s exercise of coercive power,
the state provided significant encouragement to the private actor (also called the nexus test),
the private and state actors were willful participants in a joint activity,
the private actor was controlled by a state agency, and,
the state is entwined in the management or control of the private actor.
Each scenario aims to define how much government involvement can transform a private act into a state act. No one fact functions as a necessary condition for state action across the board, and no one set of circumstances is absolutely sufficient in all cases.
Can the actions of a private actor be considered state actions for the purpose of applying laws that only apply to state actions? (Q)
Yes. The actions of a private actor can be considered state actions. Some laws and constitutional restrictions only apply to state actions and do not apply to private actions. However, for purposes of applying these laws and restrictions, sometimes an otherwise private entity’s behavior can be considered a state action.
What four ways can a private actor’s action be state action? (Q)
Four ways that a private actor’s actions can be state actions are:
the private actor is performing an exclusive government function;
the government and the private actor are in a symbiotic relationship, which means that they are interdependent, joint participants in a mutually beneficial venture;
the government encouraged or facilitated the private actor’s decision to take the action (the nexus test); or
the government is entwined in the control and management of the ostensibly private entity.
Under the state-action doctrine, if a state or local government encourages or facilitates a private actor to engage in a particular unconstitutional behavior, can that convert an otherwise private action into a state action? (Q)
Yes. Under the state-action doctrine, if a state or local government encourages or facilitates a private actor to engage in a particular unconstitutional behavior, and the private actor behaves consistently with the government’s encouragement, then state action exists. In that situation, to the extent that the private actor behaves consistently with this official encouragement or facilitation, the normally private actor’s actions are considered state actions. However, if the state or local government merely acquiesces, regulates, licenses, or passively funds a private actor, that is generally insufficient to convert a private action into a state action.
Under the state-action doctrine, is extensive and pervasive government regulation enough to make an otherwise private entity’s actions into state actions? (Q)
No. By itself, extensive and pervasive government regulation is not enough to make a normally private entity into a state actor. Many private enterprises, like power companies and hospitals, are extensively regulated by the government. However, that does not make these private enterprises into state actors that must abide by the Fourteenth Amendment or other laws that only apply to state actors. For a private company’s action to be considered a state action, something more than passive regulation is needed to convert the company’s actions into state actions subject to laws that only apply to state actions. If the government moved from passive regulation to becoming actively entwined in the control and management of a private entity, then the ostensibly private entity’s activities might be a state action.
