State Action

Question 1

What is State Action?

Answer 1

An intrusion on a person’s right by either a governmental entity or by a private requirement that cna be enforced only by governmental action (such as a racially restrictive covenant, which requires judicial action for enforcement).

Question 2

Where did the rule for State Action come from?

What is the rule?

Answer 2

The Civil Rights Cases: U.S. v. Stanley - Generally credited w/ mandating the requirement for state action - The language of the 14th and 15th Amendments (including those provisions of the Bill of Rights applicable to the states) restricts only governmental action. The acts of mere private individuals do not fall w/in their prohibitions; only “state action” is restricted.

Question 3

What are the exceptions to the State Action doctrine?

Answer 3

• The 13th Amendment;
• Public Function exception;
• Entanglement exception; and
• Entwinement exception.

Question 4

What is the 13th Amendment exception to the State Action doctrine?

Answer 4

Slavery is prohibited by private persons.

Question 5

What is the Public Function exception to the State Action doctrine?

Answer 5

When a private party discharges a public or governmental function. The test is if a private individual or entity undertakes a function that is traditionally and exclusively done by the state, then they are considered state actors. (Jackson v. Metropolitan Edison Co.)

Question 6

Is the operation of a “company town” a public function?

Answer 6

Yes, and thus is state action because towns are usually operated by the government.

Marsh v. Alabama

Question 7

Is the carrying out of primary elections a public function?

Answer 7

Yes. The electoral process is a public function and is thus state action. Therefore, the carrying out of primary elections is state action, even if the acts are directly carried out by “private” political parties.

Question 8

Are shopping centers a public function?

Answer 8

No. The operation of a shopping center is not the equivalent of operating a company town, so a person doesn’t have any 1st Amendment rights in the shopping center.

Hudgens v. NLRB

Question 9

Are parks a public function?

Answer 9

The operation of a park is usually deemed a governmental function, so generally, the operation of a park will constitute state action under the public function doctrine. Therefore, even if the park is being operated by private persons, it must still obey constitutional constraints (e.g., it can’t be operated for whites only - Evans v. Newton).

Question 10

What is the Entanglement exception to the State Action doctrine?

Answer 10

In some strong sense, private conduct is considered state action when the state authorizes, encourages, or facilitates private conduct that, if it were a state action, would violate the Constitution.

Question 11

What are the four main areas of the entanglement exception to the State Action doctrine?

Answer 11

1) Judicial and Law Enforcement Actions;
2) Government Licensing and Regulation;
3) Government Subsidies; and
4) Voter Initiatives Permitting Discrimination.

Question 12

What is the Judicial and Law Enforcement Actions section of the Entanglement exception to the State Action doctrine?

Answer 12

If any decision by a state court represents state action, then private action must comply w/ the Constitution.

• Shelley v. Kraemer: courts can’t enforce racially restrictive covenants;
• Lugar v. Edmondson Concrete Co.: Prejudgment attachment.

Question 13

What is the Government Licensing & Regulation section of the Entanglement exception to the State Action doctrine?

Answer 13

Govt licensing or regulation is insufficient for a finding of state action unless there is other govt encouraging or facilitating of unconstitutional conduct.

• Burton v. Wilmington Parking Authority: significant state involvement; a symbiotic relationship
• Moose Lodge No. 107 v. Irvis: Distinguishes and narrow Burton.

Question 14

What is the Government Subsidies section of the Entanglement exception to the State Action doctrine?

Answer 14

• Norwood v. Harrison: Under the EP Clause, a State may not provide aid to private institutions that practice racial discrimination.
• Rendell-Baker v. Kohn: Publicly funded and regulated private organizations are not state actors under the 14th Amendment unless govt compels or influences their actions –>, narrows the entanglement exception, and adheres to the narrow perception of public functions.

Question 15

What is the Voter Initiatives Permitting Discrimination section of the Entanglement exception to the State Action doctrine?

Answer 15

• Reitman v. Mulkey: Anytime a state puts additional obstacles that is going to be state action -They are making it easier to have discrimination

Question 16

What is the Entwinement exception to the State Action doctrine?

Answer 16

It is not clear whether entwinement is a full exception based on the case law; or rather a subset of entanglement.

• Brentwood Academy v. Tennessee Secondary School Athletic Assn.: State action may be found if there is such a close nexus b/t state and the challenged action that seemingly private behavior may be fairly treated as that of the state itself.