Pg 48 Flashcards
What are things that are considered to be public functions?
Education, fire, tax collection, police protection
What does it mean for a public officer to act under “color of law“?
When they are acting in a way that is relating to their office, that is considered to be state action, even if it goes beyond the scope of their authority.
I.e.: police officer beats prisoner to death. He is acting under colour of law. This includes off duty police that are hired as security guards if it appears to the public that they have the authority of a cop
What is the public function theory under the public function test for state action?
This limits state action to functions that are traditionally or exclusively reserved to the states.
Ie: operating a school for maladjusted kids doesn’t count because that is not the exclusive province of the state
Do malls or utilities count as public functions?
No
What is the close Nexus test for state action?
This is about a symbiotic relationship or joint action theory. There is state action if the state has so far insinuated itself into a position of inter-dependence with the private party that it has become a joint participant in the enterprise.
This occurs when there is such a close nexus between the state and the action that seemingly private behaviour can fairly be treated as that of the state itself.
I.e.: restaurant in a government owned parking facility that discriminated against blacks. TOC gave enough contacts for the restaurant to be subject to state action including a close financial relationship.
Under the close nexus test, if there is no public function involved, how do you determine if there is state action?
Look at whether the action is based on a relationship between the government and the defendant’s actions. If there is sufficient contacts between the private individual and the government, or the private person takes on at least the appearance of the state, then state action is found. If the actions give some tangible aid to both the defendant and the government, that is considered to be a joint venture.
Can state action be found in situations where the government appears to be authorizing private action, but it isn’t actually?
Yes, under the close nexus test
What is the code word or dead giveaway that the close Nexus test applies to find state action?
“Symbiotic“
If a government gives direct aid to someone whose activity violates the Constitution, is state action found?
Yes, under the close nexus test. The questions to ask are if the aid amounts to something more than generalized services and if it was given to all members of the public
What are the general categories to find state action under the close nexus test?
– Private actor subject to extensive regulations by the government
– cases having a wide range of physical and economic contacts between the actor and the government
– the government has given direct aid or a subsidy to a private actor
What is the state compulsion test for state action?
Ask if the government has coerced or significantly encouraged the action, either covertly or overtly. This happens when the state delegates traditional public functions to a private actor.
Ie: state legislation that commands or encourages a result that violates the constitution. There’s always state action when anyone follows the guidelines of a statute. If the state legislation commands that restaurants must racially segregate, the action of the owner is state action.
Minor encouragement does not count. If the mayor encourages constituents not to invite Black people to dinner, that is not state action
What are some things that are examples of state action?
If there is significant state involvement:
- Affirmative government involvement
– state responsible for a private party’s act because it compelled the acts
– something typically done by government that is now done by a nominally private entity. Counts if the function delegated is one that is traditionally provided by the state
– links between private and public entities. Like government ownership of property, funding, registration, licensing, mutual academic benefits between government and private actor, government encouragement or approval, etc.
– fairly attributable to the government/symbiotic relationship
– government actor in official capacity exceeds his authority and does something the state forbids
– conducting elections or exclusively public functions
What are some examples of things that are not state action?
– State just acquiesces in private action
– state authorizes or allows an action that would be constitutional if done by the state
– state gives only a benefit or service or regulates an activity. Like giving a liquor license to a club that discriminates
– providing a utility like electricity, water, police, fire
– taxing because nearly all enterprises are subject to tax collection and some administrative regulation
– licensing. Just because the state requires a license doesn’t make the licensee a private actor if the government only oversees compliance with state rules and doesn’t make day-to-day operational decisions, they are not a state actor
– race tracks are not a traditional government function
What are the elements that must be proven in order to show that there was state action?
– significant involvement/joint participation/close Nexus test: Government must become significantly involved in the actions of a state party rising to the level of state action
– encouragement, authorization, and approval
What happened in the eagle coffee shop case under state action?
A private person was discriminating in a private business, but he rented from a public place. He was found to be a state actor because the city and the owner were pretty much partners that made profit off each other.
