CRS Annotated Constitution
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Scope and Application
State Action.—“[T]he action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful.”1 The Amendment by its express terms provides that “[n]o State . . .” and “nor shall any State . . .” engage in the proscribed conduct. “It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject matter of the amendment. It has a deeper and broader scope. It nullifies and makes void all State legislation, and State action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty, or property without due process of law, or which denies to any of them the equal protection of the laws.”2 While the state action doctrine is equally applicable to denials of privileges or immunities, due process, and equal protection, it is actually only with the last great right of the Fourteenth Amendment that the doctrine is invariably associated.3
“The vital requirement is State responsibility,” Justice Frankfurter once wrote, “that somewhere, somehow, to some extent, there be an infusion of conduct by officials, panoplied with State power, into any scheme” to deny protected rights.4 Certainly, state legislation commanding a discriminatory result is state action condemned by the first section of the Fourteenth Amendment, and is void.5 But the difficulty for the Court has begun when the conduct[p.1787]complained of is not so clearly the action of a State but is, perhaps, the action of a minor state official not authorized or perhaps forbidden by state law so to act, or is, perhaps on the other hand, the action of a private party who nonetheless has some relationship with governmental authority.
The continuum of state action ranges from obvious legislated denial of equal protection to private action that is no longer so significantly related to or brigaded with state action that the Amendment applies. The prohibitions of the Amendment “have reference to actions of the political body denominated by a State, by whatever instruments or in whatever modes that action may be taken. A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State’s power, his act is that of the State.”6
“Careful adherence to the ‘state action’ requirement preserves an area of individual freedom by limiting the reach of federal law and federal judicial power. It also avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed. A major consequence is to require the courts to respect the limits of their own power as directed against state governments and private interests. Whether this is good or bad policy, it is a fundamental fact of our political order.”7 That the doc[p.1788]trine serves certain values and disserves others is not a criticism of it but a recognition that in formulating and applying the several tests by which the presence of “state action” is discerned,8 the Court has considerable discretion and the weights of the opposing values and interests will lead to substantially different applications of the tests. Thus, following the Civil War, when the Court sought to reassert federalism values, it imposed a rather rigid state action standard. During the civil rights movement of the 1950s and 1960s, when almost all state action contentions were raised in a racial context, the Court generally found the presence of state action. As it grew more sympathetic to federalism concerns in the late 1970s and 1980s, the Court began to reassert a strengthened state action doctrine, primarily but hardly exclusively in nonracial cases.
Operation of the state action doctrine was critical in determining whether school systems were segregated unconstitutionally by race. The original Brown cases and subsequent ones arose in the context of statutorily mandated separation of the races and occasioned therefore no controversy in finding state action.9 The aftermath in the South involved not so much state action as the determination of the remedies necessary to achieve a unitary system.10 But if racial segregation is not the result of state action in some aspect, then its existence is not subject to constitutional remedy.11 Distinguishing between the two situations has occasioned much controversy.
Confronting in a case arising from Denver, Colorado, the issue of a school system in which no statutory dual system had ever been imposed, the Court restated the obvious principle that racial segregation caused by “intentionally segregative school board actions” is de jure and not de facto, just as if it had been mandated by statute. “[T]he differentiating factor between de jure segregation and so–called de facto segregation . . . is purpose or intent to segregate.”12 Where it is proved that a meaningful portion of a school system is segregated as a result of official action, the official agency must bear the burden of proving that other school segregation within the system is adventitious and not the result of official action. It is not the responsibility of complainants to show that each[p.1789]school in a system is de jure segregated to be entitled to a system–wide desegregation plan.13 Moreover, the Court has also apparently adopted a rule to the effect that if it can be proved that at some time in the past a school board has purposefully maintained a racially separated system, a continuing obligation to dismantle that system can be said to have devolved upon the agency at that earlier point so that its subsequent actions can be held to a standard of having promoted desegregation or of not having promoted it, so that facially neutral or ambiguous school board policies can form the basis for a judicial finding of intentional discrimination.14
Different results, however, follow when inter–district segregation is an issue. Disregard of district lines is permissible by a federal court in formulating a desegregation plan only when it finds an inter–district violation. “Before the boundaries of separate and autonomous school districts may be set aside by consolidating the separate units for remedial purposes by imposing a cross–district remedy, it must first be shown that there has been a constitutional violation within one district that produces a significant segregative effect in another district. Specifically it must be shown that racially discriminatory acts of the state or local school districts, or of a single school district, have been a substantive cause of inter–district segregation.”15 The de jure/de facto distinction is thus well established in school cases and is firmly grounded upon the “state action” language of the Fourteenth Amendment.
It has long been established that the actions of state officers and agents are attributable to the State. Thus, application of a federal statute imposing a criminal penalty on a state judge who excluded African Americans from jury duty was upheld as within congressional power under the Fourteenth Amendment; the judge’s action constituted state action even though state law did not authorize him to select the jury in a racially discriminatory manner.16 [p.1790]The fact that the “state action” category is not limited to situations in which state law affirmatively authorizes discriminatory action was made clearer in Yick Wo v. Hopkins,17 in which the Court found unconstitutional state action in the discriminatory administration of an ordinance fair and non–discriminatory on its face. Not even the fact that the actions of the state agents are illegal under state law makes the action nonattributable to the State for purposes of the Fourteenth Amendment.18 “Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken ‘under color of’ state law.”19 When the denial of equal protection is not commanded by law or by administrative regulation but is nonetheless accomplished through police enforcement of “custom”20 or through hortatory admonitions by public officials to private parties to act in a discriminatory manner,21 the action is state action. When a State clothes a private party with official authority, he may not engage in conduct forbidden the State.22
Beyond this point we enter the area in which the discriminatory intent is that of a private individual and the question is whether a State has encouraged the effort or has impermissibly aided it.23 Of notable importance and a subject of controversy since[p.1791]it was decided is Shelley v. Kraemer.24 There, property owners brought suit to enforce a racially restrictive covenant, seeking to enjoin the sale of a home by white sellers to black buyers. The covenants standing alone, Chief Justice Vinson said, violated no rights protected by the Fourteenth Amendment. “So long as the purposes of those agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been no action by the State and the provisions of the Amendment have not been violated.” However, that was not all. “These are cases in which the purposes of the agreements were secured only by judicial enforcement by state courts of the restrictive terms of the agreements.”25 Establishing that the precedents were to the effect that judicial action of state courts was state action, the Court continued to find that judicial enforcement of these covenants was forbidden. “The undisputed facts disclose that petitioners were willing purchasers of properties upon which they desire to establish homes. The owners of the properties were willing sellers; and contracts of sale were accordingly consummated. . . .”
“These are not cases . . . in which the States have merely abstained from action, leaving private individuals free to impose such discriminations as they see fit. Rather, these are cases in which the States have made available to such individuals the full coercive power of government to deny to petitioners, on the grounds of race or color, the enjoyment of property rights in premises which petitioners are willing and financially able to acquire and which the grantors are willing to sell.”26
Arguments about the scope of Shelley began immediately. Did the rationale mean that no private decision to discriminate could be effectuated in any manner by action of the State, as by enforcement of trespass laws or judicial enforcement of discrimination in wills? Or did it rather forbid the action of the State in interfering with the willingness of two private parties to deal with each other? Disposition of several early cases possibly governed by Shelley left this issue unanswered.27 But the Court has experienced no dif[p.1792]ficulty in finding that state court enforcement of common–law rules in a way that has an impact upon speech and press rights is state action and triggers the application of constitutional rules.28 It may be that the substantive rule that is being enforced is the dispositive issue, rather than the mere existence of state action. Thus, in Evans v. Abney,29 a state court, asked to enforce a discriminatory stipulation in a will that property devised to a city for use as a public park should never be used by African Americans, ruled that the city could not operate the park in a segregated fashion; instead of striking the segregation requirement from the will, the court ordered return of the property to the decedent’s heirs, inasmuch as the trust had failed. The Supreme Court held the decision permissible, inasmuch as the state court had merely carried out the testator’s intent with no racial motivation itself, and distinguished Shelley on the basis that African Americans were not discriminated against by the reversion, because everyone was deprived of use of the park.30
Similar to Shelley in controversy and the indefiniteness of its rationale, the latter element of which appears to have undergone a modifying rationalization, is Reitman v. Mulkey,31 in which, following enactment of an “open housing” law by the California legislature, an initiative and referendum measure was passed that repealed the law and amended the state constitution to prevent any agency of the State or of local government from henceforth forbidding racial discrimination in private housing. Upholding a state court invalidation of this amendment, the Court appeared to ground its decision on two lines of reasoning, either on the state court’s premise that passage of the provision encouraged private racial discrimination impermissibly or on the basis that the provision made discriminatory racial practices immune from the ordi[p.1793]nary legislative process, while not so limiting other processes, and thus impermissibly burdened minorities in the achievement of legitimate aims in a way other classes of persons were not burdened.32 In a subsequent case, the latter rationale was utilized in a unanimous decision voiding an Akron ordinance, which suspended an “open housing” ordinance and provided that any future ordinance regulating transactions in real property “on the basis of race, color, religion, national origin or ancestry” must be submitted to a vote of the people before it could become effective, while any other ordinance would become effective when passed, except that it could be petitioned to referendum.33
That Mulkey and Hunter stand for the proposition that imposing a barrier to racial amelioration legislation is the decisive and condemning factor is evident from two recent decisions with respect to state referendum decisions on busing for integration.34 Both cases agree that “the simple repeal or modification of desegregation or antidiscrimination laws, without more, never has been viewed as embodying a presumptively invalid racial classification.”35 It is thus not impermissible to overturn a previous governmental decision, or to defeat the effort initially to arrive at such a decision, simply because the state action may conceivably encourage private discrimination.
In other instances in which the discrimination is being practiced by private parties, the question essentially is whether there has been sufficient state involvement to bring the Fourteenth Amendment into play; that is, the private discrimination is not constitutionally forbidden “unless to some significant extent the State in any of its manifestations has been found to have become in[p.1794]volved in it.”36 There is no clear formula. “Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.”37 State action was found in a number of circumstances. The “White Primary” was outlawed by the Court not because the party’s discrimination was commanded by statute but because the party operated under the authority of the State and it in fact controlled the outcome of elections.38 Although the City of Philadelphia was acting as trustee in administering and carrying out the will of someone who had left money for a college, admission to which was stipulated to be for white boys only, the city was held to be engaged in forbidden state action in discriminating against African Americans in admission.39 When state courts on petition of interested parties removed the City of Macon as trustees of a segregated park left in trust for such use in a will and appointed new trustees in order to keep the park segregated, the Court reversed, finding that the City was still inextricably involved in the maintenance and operation of the park.40 In a significant case in which the Court explored a lengthy list of contacts between the State and a private corporation, it held that the lessee of property within an off–street parking building owned and operated by a municipality could not exclude African Americans from its restaurant. It was emphasized that the building was publicly built and owned, that the restaurant was an integral part of the complex, that the restaurant and the parking facilities complemented each other, that the parking authority had regulatory power over the lessee and had made stipulations but nothing related to racial discrimination, and that the financial success of the restaurant benefited the governmental agency; “the degree of state participation and involvement in discriminatory action” was sufficient to condemn it.41
The question arose, then, what degree of state participation was “significant”? Would licensing of a business clothe the actions of that business with sufficient state involvement? Would regulation? Or provision of police and fire protection? Would enforcement[p.1795]of state trespass laws be invalid if it effectuated discrimination? The “sit–in” cases of the early 1960’s presented all these questions and more but did not resolve them.42 The basics of an answer came in Moose Lodge No. 107 v. Irvis,43 in which the Court held that the fact that a private club was required to have a liquor license to serve alcoholic drinks and did have such a license did not bar it from discriminating against African Americans. It denied that private discrimination became constitutionally impermissible “if the private entity receives any sort of benefit or service at all from the State, or if it is subject to state regulation in any degree whatever,” since any such rule would eviscerate the state action doctrine. Rather, “where the impetus for the discrimination is private, the State must have ‘significantly involved itself with invidious discrimination.”’44 Moreover, while the State had extensive powers to regulate in detail the liquor dealings of its licensees, “it cannot be said to in any way foster or encourage racial discrimination. Nor can it be said to make the State in any realistic sense a partner or even a joint venturer in the club’s enterprise.”45 And there was nothing in the licensing relationship here that approached “the symbiotic relationship between lessor and lessee” which the Court had found in Burton.46
The Court subsequently made clear that governmental involvement with private persons or private corporations is not the critical factor in determining the existence of “state action.” Rather, “the inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.”47 Or, to quote Judge Friendly, who first enunciated the test this way, the “essential point” is “that the state must be involved not simply with some activity of the institution alleged to have inflicted injury upon a plaintiff but with the activity that caused the injury. Putting the point another way, the state action, not the private, must be the subject of the complaint.”48 Therefore, the Court[p.1796]found no such nexus between the State and a public utility’s action in terminating service to a customer. Neither the fact that the business was subject to state regulation, nor that the State had conferred in effect a monopoly status upon the utility, nor that in reviewing the company’s tariff schedules the regulatory commission had in effect approved the termination provision included therein (but had not required the practice, had “not put its own weight on the side of the proposed practice by ordering it”)49 operated to make the utility’s action the State’s action.50 Significantly tightening the standard further against a finding of “state action,” the Court asserted that plaintiffs must establish not only that a private party “acted under color of the challenged statute, but also that its actions are properly attributable to the State. . . .”51 And the actions are to be attributable to the State apparently only if the State compelled the actions and not if the State merely established the process through statute or regulation under which the private party acted. Thus, when a private party, having someone’s goods in his possession and seeking to recover the charges owned on storage of the goods, acts under a permissive state statue to sell the goods and retain out of the proceeds his charges, his actions are not governmental action and need not follow the dictates of the due process clause.52
Supplement: [P. 1796, add to text following n.52:]
Or, where a state worker’s compensation statute was amended to allow, but not require, an insurer to suspend payment for medical treatment while the necessity of the treatment was being evaluated by an independent evaluator, this action was not fairly attributable to the State, and thus pre–deprivation notice of the suspension was not required.34
In a few cases, the Court has indicated that discriminatory action by private parties may be precluded by the Fourteenth Amendment if the particular party involved is exercising a “public func[p.1797]tion.” This rationale is one of those which emerges from the various opinions in Terry v. Adams.54 In Marsh v. Alabama,55 a Jehovah’s Witness had been convicted of trespass after passing out literature on the streets of a company–owned town and the Court reversed. It is not at all clear from the opinion of the Court what it was that made the privately–owned town one to which the Constitution applied. In essence, it appears to have been that the town “had all the characteristics of any other American town,” that it was “like” a State. “The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.”56 Subsequent efforts to expand upon Marsh were at first successful and then turned back, and the “public function” theory in the context of privately–owned shopping centers was sharply curtailed.57
Attempts to apply such a theory to other kinds of private conduct, such as to private utilities,58 to private utilization of permissive state laws to secure property claimed to belong to creditors,59 to the operation of schools for “problem” children referred by public institutions,60
Supplement: [P. 1797, add to text following n.60:]
to private insurance companies providing worker’s compensation coverage,35
In finding state action in the racially discriminatory use of peremptory challenges by a private party during voir dire in a civil case,64 the Court applied tests developed in an earlier case involv[p.1798]ing garnishment and attachment.65 The Court first asks “whether the claimed constitutional deprivation resulted from the exercise of a right or privilege having its source in state authority,” and then “whether the private party charged with the deprivation could be described in all fairness as a state actor.” In answering the second question, the Court considers three factors: “the extent to which the actor relies on governmental assistance and benefits, whether the actor is performing a traditional governmental function, and whether the injury caused is aggravated in a unique way by the incidents of governmental authority.”66 There was no question that exercise of peremptory challenges derives from governmental authority (either state or federal, as the case may be); exercise of peremptory challenges is authorized by law, and the number is limited. Similarly, the Court easily concluded that private parties exercise peremptory challenges with the “overt” and “significant” assistance of the court. So too, jury selection is the performance of a traditional governmental function: the jury “is a quintessential governmental body, having no attributes of a private actor,” and it followed, so the Court majority believed, that selection of individuals to serve on that body is also a governmental function whether or not it is delegated to or shared with private individuals.67 Finally, the Court concluded that “the injury caused by the discrimination is made more severe because the government permits it to occur within the courthouse itself.”68 Dissenting Justice O’Connor complained that the Court was wiping away centuries of adversary practice in which “unrestrained private choice” has been recognized in exercise of peremptory challenges; “[i]t is antithetical to the nature of our adversarial process,” the Justice contended, “to say that a private attorney acting on behalf of a private client represents the government for constitutional purposes.”69
Even though in a criminal case it is the government and the defendant who are adversaries, rather than two private parties, as is ordinarily the case in civil actions, the Court soon applied these same principles to hold that exercise of peremptory challenges by the defense in a criminal case also constitutes state action.70 The same generalities apply with at least equal force: there is overt and significant governmental assistance in creating and structuring the[p.1799]process, a criminal jury serves an important governmental function and its selection is also important, and the courtroom setting intensifies harmful effects of discriminatory actions. An earlier case71 holding that a public defender was not a state actor when engaged in general representation of a criminal defendant was distinguished, the Court emphasizing that “exercise of a peremptory challenge differs significantly from other actions taken in support of a defendant’s defense,” since it involves selection of persons to wield governmental power.72
The rules developed by the Court for business regulation are that (1) the “mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth Amendment,”73 and (2) “a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must be deemed to be that of the State.”74
Previously, the Court’s decisions with respect to state “involvement” in the private activities of individuals and entities raised the question whether financial assistance and tax benefits provided to private parties would so clothe them with state action that discrimination by them and other conduct would be subjected to constitutional constraints. Many lower courts had held state action to exist in such circumstances.75 However the question might have[p.1800]been answered under the older cases, it is evident that a negative answer flows from the premises of the more recent cases. In Rendell– Baker v. Kohn,76 the private school received “problem” students referred to it by public institutions, it was heavily regulated, and it received between 90 and 99% of its operating budget from public funds. In Blum v. Yaretsky,77 the nursing home had practically all of its operating and capital costs subsidized by public funds and more than 90% of its residents had their medical expenses paid from public funds; in setting reimbursement rates, the State included a formula to assure the home a profit. Nevertheless, in both cases the Court found that the entities remained private, and required plaintiffs to show that as to the complained of actions the State was involved, either through coercion or encouragement. “That programs undertaken by the State result in substantial funding of the activities of a private entity is no more persuasive than the fact of regulation of such an entity in demonstrating that the State is responsible for decisions made by the entity in the course of its business.”78
In the social welfare area, the Court has drawn a sharp distinction between governmental action subject to substantive due process requirements, and governmental inaction, not so constrained. There being “no affirmative right to governmental aid,” the Court announced in DeShaney v. Winnebago County Social Services Department79 that “as a general matter, . . . a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.” Before there can be state involvement creating an affirmative duty to protect an individual, the Court explained, the state must have taken a person into its custody and held him there against his will so as to restrict his freedom to act on his own behalf. Thus, while the Court had recognized due process violations for failure to provide adequate medical care to incarcerated prisoners,80 and for failure to ensure reasonable safety for involuntarily committed mental patients,81 no such affirmative duty arose from the failure of social services agents to protect an abused child from further abuse from his parent. Even though possible abuse had been reported to the agency and confirmed and monitored by the agency, and the agency[p.1801]had done nothing to protect the child, the Court emphasized that the actual injury was inflicted by the parent and “did not occur while [the child] was in the State’s custody.”82 While the State may have incurred liability in tort through the negligence of its social workers, “[not] every tort committed by a state actor [is] a constitutional violation.”83 “[I]t is well to remember . . . that the harm was inflicted not by the State of Wisconsin, but by [the child’s] father.”84
Judicial inquiry into the existence of “state action” may be directed toward the implementation of either of two remedies, and this may well lead to some difference in the search. In the cases considered here suits were against a private actor to compel him to halt his discriminatory action, to enjoin him to admit blacks to a lunch counter, for example. But one could just as readily bring suit against the government to compel it to cease aiding the private actor in his discriminatory conduct. Recurrence to the latter remedy might well avoid constitutional issues that an order directed to the private party would raise.85 In any event, it must be determined whether the governmental involvement is sufficient to give rise to a constitutional remedy; in a suit against the private party it must be determined whether he is so involved with the government as to be subject to constitutional restraints, while in a suit against the government agency it must be determined whether the government’s action “impermissibly fostered” the private conduct.
Thus, in Norwood v. Harrison,86 the Court struck down the provision of free textbooks by the State to private schools set up as racially segregated institutions to avoid desegregated public schools, even though the textbook program predated the establishment of these schools. “[A]ny tangible state assistance, outside the generalized services government might provide to private segregated schools in common with other schools, and with all citizens, is constitutionally prohibited if it has ‘a significant tendency to facilitate, reinforce, and support private discrimination.’. . . The constitutional obligation of the State requires it to steer clear, not only of operating the old dual system of racially segregated schools, but also of giving significant aid to institutions that practice racial or[p.1802]other invidious discriminations.”87 And in a subsequent case, the Court approved a lower court order that barred the city from permitting exclusive temporary use of public recreational facilities by segregated private schools because that interfered with an outstanding order mandating public school desegregation. But it remanded for further factfinding with respect to permitting nonexclusive use of public recreational facilities and general government services by segregated private schools so that the district court could determine whether such uses “involve government so directly in the actions of those users as to warrant court intervention on constitutional grounds.”88 Unlike the situation in which private club discrimination is attacked directly, “the question of the existence of state action centers in the extent of the city’s involvement in discriminatory actions by private agencies using public facilities. . . .” Receipt of just any sort of benefit or service at all does not by the mere provision—electricity, water, and police and fire protection, access generally to municipal recreational facilities—constitute a showing of state involvement in discrimination and the lower court’s order was too broad because not predicated upon a proper finding of state action. “If, however, the city or other governmental entity rations otherwise freely accessible recreational facilities, the case for state action will naturally be stronger than if the facilities are simply available to all comers without condition or reservation.” The lower court was directed to sift facts and weigh circumstances on a case–by–case basis in making determinations.89
It should be noted, however, that the Court has interposed, without mentioning these cases, a potentially significant barrier to utilization of the principle set out in them. In a 1976 decision, which it has expanded since, it held that plaintiffs, seeking disallowal of governmental tax benefits accorded to institutions that allegedly discriminated against complainants and thus involved the government in their actions, must in order to bring the suit show that revocation of the benefit would cause the institutions to cease the complained–of conduct.90
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