State Action

Question 1

Governmental Action (“State Action”)

Answer 1

When alleging a constitutional violation, a plaintiff MUST show that the violation is attributable to government action (also known as “state action”), which applies to ALL levels of local, state, and federal government. Generally, the conduct of private individuals or entities DO NOT constitute state action and is NOT protected by the U.S. Constitution. The Supreme Court has held that running a private school or college is not “state action,” even when said school is funded primarily by government funds.

Question 2

Governmental Action (“State Action”)–Private Actors/Conduct

Answer 2

Courts will find “state action” for private conduct when the conduct involves either:

(a) a traditional public function – powers traditionally and exclusively reserved to the government; OR
(b) when significant government involvement exists to authorize, encourage, or facilitate private conduct that is unconstitutional (i.e. government enforcement of certain private contracts, entanglement or joint action between a state and private actor, and encouragement of private discrimination). Examples of a traditional “public function” include holding elections and where a corporation operates a privately owned “company town” that provides typical services of the government.