Individual Rights - Nov. 9 and 14 Flashcards
What is the Bill of Rights? (Q)
The Bill of Rights refers to the first 10 amendments to the Constitution that protect individual rights from governmental interference. James Madison drafted these amendments in response to calls from various ratifying states for more constitutional protections for individual liberties. The amendments were ratified in 1791 and cover such rights as freedom of expression, due process, and freedom from unreasonable searches and seizures.
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.
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.
A private restaurant leased a property within a larger building that was owned by a state government. The building featured the state seal. The state and U.S. flags also flew outside the main public entrance. The government building’s finance plan relied on leasing space inside the building to non-government, private entities to operate small businesses. The government building paid for the restaurant’s utilities. The restaurant attracted traffic that paid to use the building’s parking lot, which was owned by the state and also prominently featured the state seal and the national and state flags. A citizen complained that this relationship converted the otherwise private actions taken by the restaurant into state actions subject to the reach of the Fourteenth Amendment to the U.S. Constitution.
Is the citizen correct? (Q)
Yes. The citizen is correct. Leasing property from a public landlord is not enough to make a private entity a state actor. However, a state and a private entity can have a symbiotic, mutually beneficial relationship that is so interdependent that they are effectively joint participants. If so, all the joint venture’s actions are state actions even if the private entity did the acting.
Here, the state directly benefits from the restaurant because it relies on rent to finance the building. The state indirectly benefits from the restaurant because it increases the state’s parking-lot revenues. The restaurant benefits from the state paying the utilities. The state seal and flags make the building look like a government building. This interdependent, mutually beneficial involvement shows there is a joint venture converting the restaurant’s actions into state actions. Thus, the citizen is correct.
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.
A private group organized concerts and supported music education programs in K-12 public schools. The group’s members were individual schools. 80 percent of the group’s members were public K-12 schools and the remaining 20 percent were private K-12 schools. The group received annual appropriations from the state government to fund its operations. Additional funding came from annual dues and from the money collected at group sponsored concerts and competitions. The group’s employees participated in the state teachers’ retirement plan. The state board of education appointed three members of the group’s nine-member board of directors. A student sued the group, claiming a Fourteenth Amendment violation. The group argued that its actions were not state actions subject to the Fourteenth Amendment.
Are the group’s actions considered state actions? (Q)
Yes. The group’s actions are state actions. Under the state-action doctrine, an allegedly private entity’s action can be a state action. Two situations in which a private entity’s actions are state actions are:
the state and the entity are interdependent, joint participants in a mutually beneficial venture (i.e., a symbiotic relationship) and
the state is entwined in the control and management of the entity or activity.
Here, the group is an interdependent, joint venture between both state and public schools. The group is funded both privately and by the state and benefits everyone. The state is also entwined in the group’s control and management because the state has the ability to appoint part of the group’s board. Further, the group’s employees are treated as state employees in some ways, like being given access to the state retirement plan. Thus, the group’s actions are state actions.
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.
To implement a federal transportation policy favoring mass transit, Congress enacted a statute creating a ferry corporation to operate passenger ferries across the country. The statute described the ferry corporation as a private corporation. The president of the United States appointed the corporation’s board of directors. The federal government owned all shares in the corporation. Every year, Congress appropriated public funds to help cover the corporation’s operating expenses. A political advocacy group tried to buy space in one of the corporation’s ferry terminals and was refused. The advocacy group sued the corporation, claiming that the corporation’s refusal violated the First Amendment. The corporation argued that it was a private entity and its refusal to sell advertising space was not a state action subject to the First Amendment.
Was the corporation’s refusal a state action? (Q)
Yes. The corporation’s refusal was a state action. A government agency’s form does not control whether an entity is a state or a private actor. The government cannot escape responsibility for constitutional violations by taking over a private entity or structuring its operations in a corporate form. Rather, substance is what matters. If an entity is substantively being the government, then it is the government. The government is always a state actor.
Here, the federal government controls the corporation in all material respects. It owns all the shares, the president appoints the board, the corporation depends on regular money from Congress, and the corporation exists to implement a federal policy. While the statute claims that the corporation is private, that form does not matter. Substantively, the corporation is the government. Accordingly, the corporation’s refusal was a state action.
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. 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.
