State Action Doctrine

Question 1

Civil Rights Cases: U.S. v. Stanley (1883) [Bradley]

Answer 1

Holding: 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.

Relevance: Establishes the “state action” doctrine: That the Fourteenth Amendment applies only to government action, not private individuals.

Question 2

Exceptions: When private conduct may be state action

Answer 2

1. Public functions: If a private entity is performing a task traditionally, exclusively done by government, it may be considered a state actor.
2. Entanglement: if government authorizes, facilitates, encourages private conduct, the conduct may be considered state action.
3. Entwinement?: “pervasive entwinement of public institutions and public officials in [a private organization’s] composition and workings”

Question 3

Examples of Public Function State Actions

Answer 3

A company-owned town prohibiting speech on public sidewalk (Marsh v. Alabama (1946))

Private association operating an all-White primary (Terry v. Adams (1953))

A tract of land, granted by a trust to the City for use as a public park open to White people only, where state was involved in maintaining and operating the park. (Evans v. Newton (1966))

Question 4

Examples of No State Action Public Functions

Answer 4

A private utility company with a public convenience to service an area is not a state actor, as this was not traditionally, exclusively a state function or municipal duty. (Jackson v. Metropolitan Edison Co. (1974))

Operating a private enclosed shopping mall that is a public gathering space. (Hudgens v. NLRB (1976))

Question 5

Public Function State Action Rule

Answer 5

Relevance/rule: Establish that a private entity may qualify as a state actor when it exercises powers traditionally, exclusively reserved to the state.

And for the public function exception to apply, it is not enough that the government exercised the function in the past, or that the function serves the public interest in some way.

Question 6

Manhattan Community Access Corp. v. Halleck (2019) [Kavanaugh]

Answer 6

Relevance: Illustrates how the public function exception applies, and that it is not enough that the government delegated its responsibility to a private actor.

A private entity can qualify as a state actor in a few limited circumstances including: (1) performing traditional, exclusive public function; (2) when gov’t compels the private entity to take a particular action; (3) when the gov’t acts jointly w/private entity.

Question 7

Entanglement Exception to State Action Doctrine; State Action Examples

Answer 7

Courts enforcing racially discriminatory real estate covenants (Shelley v. Kraemer (1948))

State law procedural scheme for attaching a debtor’s property, whereby upon private party’s application, sheriff executed writ sequestering the disputed property (Lugar v. Edmonson Oil (1982))

Race based peremptory challenges in a civil trial (Edmonson v. Leesville Concrete Co. (1991))
Gov’t agency leasing a portion of a public building to a business that discriminated based on race (Burton v. Wilmington (1961))

Question 8

Entanglement Exception to State Action Doctrine; No State Action Examples

Answer 8

Granting liquor license to a private club that discriminated based on race. (Moose Lodge v. Iris (1972)).

Question 9

Entanglement Exception to State Action Doctrine Main Rule

Answer 9

Relevance/rule: Establish that if the government affirmatively authorizes, encourages, and facilitates private conduct that violates the Constitution, that conduct may be considered state action.

The fact that a private entity receives some kind of benefit from the state, or is regulated by the state, is not enough to make it a state actor.

Question 10

Entwinement: Brentwood Academy v. TN Secondary School Athletic Ass’n (2001) [Souter]

Answer 10

Relevance: Establishes that “entwinement” between government actors and private association, or government officials’ pervasive involvement in a private association, may render that association a state actor.

There is “pervasive entwinement of public institutions and public officials in [the Association’s] composition and workings, and there is no substantial reason to claim unfairness in applying constitutional standards to it.”

Question 11

Public Function Exception Takeaway

Answer 11

Public function: If a private entity is performing a task traditionally, exclusively done by government, it may be considered a state actor.

Examples: Company-owned town (Marsh v. Alabama); White primary (Terry v. Adams); Operating a segregated park (Evans v. Newton)

But not: private utility company with a monopoly from state to provide power (Jackson v. Metro. Edison Co.); privately owned shopping mall Hudgens v. NLRB (1976); private corporation operating public access channels (Manhattan Community Access Corp. v. Halleck)

Question 12

Entanglement Exception Takeaway

Answer 12

Entanglement: if government authorizes, facilitates, encourages private conduct, the conduct may be considered state action.

Examples: Courts enforcing racially-discriminatory restrictive covenants (Shelley v. Kraemer); private entity working with state actors to attach a debtor’s property (Lugar v. Edmonson Oil); racial discrimination in civil jury selection (Edmonson v. Leesville Concrete); coffee shop leasing property from a government building (Burton v. Wilmington)

But not: Liquor license for a private club that discriminates based on race (Moose Lodge v. Iris)

Question 13

Entwinement Exception Takeaway

Answer 13

Entwinement: “pervasive entwinement of public institutions and public officials in [a private organization’s] composition and workings”

Example: State athletic organization comprised almost entirely of public-school officials (Brentwood v. TN Secondary School Athletic Ass’n)

But not: Nationwide athletic association comprised of many members from many different states (Id.)