State Action Doctrine

Question 1

State Action Doctrine- Four Functions

Answer 1

There are four functions in which a private actor can take on the imprimature of the state and thus the Constitution applies to them. They are in a sliding scale- easy to prove to hard.

1. Government Function
2. State Involvement
3. State Encouragement
4. State Entwinement

Question 2

State Action Doctrine- Government Function

Answer 2

Government function is when a private party exercises powers traditionally and exclusively reserved for the state.

I.E. elections, but not utilities and schools

Cases

• Smith v. Allright- TX elections case- “…quintessential government function…”
• Terry v. Adams- Jaybird Democrats- pre primary elections
• Marsh v. Alabama- JW’s distributing literature

Question 3

State Action Doctrine- State Involvement

Answer 3

State involvement is when private action is facilitated by state assistance.

Shelley v. Kramer- restrictive homeowners covanants enforced by a court

Question 4

State Action Doctrine- State Encouragement

Answer 4

State encouragement is when government actors encourage private parties to behave in a certain way or to take certain action

• elusive
• few fit into this bucket

Cases:

• Reitman v. Mulkaney- referendum encouraging private discrimination in buying/leasing/selling property
• Moose Lodge- liquor licence granting not SE

Question 5

State Action Doctrine- State Entwinement

Answer 5

State entwinement is when the interaction between the state and the private actor make them essentially joint ventureres.

Question 6

Attack Outline- State Action Doctrine

Answer 6

1. 14th A- applies only to the STATE
2. Define State Action Doctrine- functions in which a private actor can take on the imprimature of the state
3. General Rule- Con. applies only to State (except 13A)
   
   1. would interfere with freedom
4. Which function is it?
   
   1. If Govt. Function-
      
      1. is it a power traditionally and exclusively reserved for state?
         
         1. Look at practice involved, history and who did it
      2. Is it a facility built to benefit the public
   2. If State Involvement
      
      1. is it a private action facilitated by state assistance via judicial enforcement
         
         1. loss shared by citizens equally
         2. would facility exist outside the contract
   3. If State Encouragement
      
      1. do gov’t actors encourage private parties to behave in a certain way or take certain action
         
         1. does law encourage private discrimination?