Step 0: State Action Requirement

Question 1

State Action Requirement

Answer 1

Constitutional individual liberties and equal protection provisions apply only to “state action” and not private action (i.e., federal, state, local government action). In United States v. Stanley or Civil Rights Cases of 1883, the court held that the Civil Rights Act of 1875, which banned discrimination in public accommodations, was unconstitutional and does not apply to private action.

Question 2

Exceptions to State Action Requirement

Answer 2

The three exceptions to the state action requirement are: (1) the Thirteenth Amendment (prohibition of slavery), (2) the public functions exception; and (3) the entanglement exception.

Question 3

Public Functions Exception

Answer 3

Under (2), the public functions exception, when a private entity assumes traditional government functions, the Constitution applies. In Marsh v. Alabama, the court held that the first amendment applied to a company town that arrested a man for distributing first amendment literature on the sidewalk

Question 4

Entanglement Exception

Answer 4

Under (3), entanglement occurs when there is either: (1) judicial action, (2) government regulation, (3) government subsidies, or (4) entwinement.

Question 5

Judicial Action (under Entanglement Exception)

Answer 5

Judicial action is when there is action taken by courts that involves unconstitutional conduct (specifically racial covenants or discriminatory peremptory challenges by litigants).

Question 6

Government Regulation (under Entanglement Exception)

Answer 6

Government regulation is when there is a regulation or licensing that clearly encourages unconstitutional conduct. Government subsidies are when there is government funding that elicits or supports unconstitutional conduct (extremely limited, probably not even good law anymore).

Question 7

Entwinement (under Entanglement Exception)

Answer 7

Entwinement is when there is pervasive entwinement between private and state actors.