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Constitutional Law II
University of Cincinnati School of Law
Schneider, Ronna Greff

Con Law II Schneider Spring 10

The State Action Doctrine

A.State Action and Federalism


a.State action is a predicate for an individual rights claim based on the Constitution because the constitution’s commands are only directed to state entities, not private parties. The court has held that the state action doctrine is necessary to preserve individual liberty by limiting the federal government’s reach (preserves federalism). The modern court has held that state action is a prerequisite to the assertion of rights contained in both the first eight amendments (originally applicable only to the fed gov’t) and the 14thAm. (applicable to the states).

b.Must show that the state either (1) acted or (2) failed to act and had a duty to act.

2.The Civil Rights Cases (1883) US SC [1584] Neutral govt action

a.The Court used federalism to give the state action doctrine content.

b.Facts: 1875 CRA provided that all persons were entitled to full/equal enjoyment of public accommodations/amusement regardless of race, color, or previous servitude. Private persons violating these rights were subject to civil damages and crim penalties. The CRA was invalidated because Congress lacked the power to make such a law (ultimately an enum powers case.)

c.Bradley’s Opinion:

i.Congress certainly didn’t have the power to pass such a law before the passage of the Civil Rights Ams. The Court holds that the 14thAm’s DP and EP guarantees apply by their own terms (cl. 2) solely to the states (entities with stars in the flag) and cannot reach ind invasion of ind rights. The CRA declares ind acts offenses punishable by the courts and does not correct a state con’l wrong. Even the enforcement clause (§5) does not allow Congress to regulate solely private conduct. “A wrongful act of an ind is a PRIVATE wrong—an invasion of the rights of the injured party, but if not sanctioned in some way by the State, or not under State authority, [the party’s] rights remain in full force, and may presumably be vindicated by resort to the laws of the State for redress.”

ii.The Court agreed that 13thAm is diff and is primary and direct in character and can reach private conduct, but the CRA was also not authorized under the 13th Am. because refusal to serve is a civil injury, not slavery. “When a man has emerged from slavery…there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the spec fav of the law.”

d.Harlan’s dissent: Congress’ power to make this law comes from the 13th Am’s enforcement clause because the purpose is to remedy slavery including elevated their inferior status to that of freepersons. He also disagrees that the 14thAm is wholly prohibitory. The enforcement clause allows Congress to enforce all of its provisions, not just the prohibitory ones, but also the aff grant of citizenship to all persons. Also, the “special favorite” argument is irrelevant because the CRA applies to all races equally, blacks would simply benefit the most from it at this point in history. Harlan would limit Congress’ reach to private inds and corps that exercise public functions and wield power and authority under the State. Leg history suggests Congress intended Harlan’s interpretation of the 13thAm. Talked about wiping out slavery and all vestiges thereof.

e.“Congress can prohibit slavery and badges and incidences of slavery:” Jones v. Alfred Mayor & Co (SC): using this language the court authorized Congress prohibiting at least some private discrimination precisely on Harlan’s theory.

f.Note: Two types of hard cases

i.We have an entity that everyone agrees is the state. (Shelly, DeShaney) The issue is did what the state did (or didn’t do) violate the constitution?

ii.Questions/Close calls about how to characterize a particular entity a being private or public. The court has been candid and conceded that there is no rule and perhaps no standard, just a common law that has developed. (Burton)

iii.Hard state action issues: Duty to Act AND State action exists but is it the kind of conduct or activity that the constitution forbids (not really a state action issue—but thought of under the rubric b/c the action is very minimal or neutral despite its disparate impact. So think about Shelly v. Kramer: there is beyond contest, action when a state court enforces a private covenant not to sell. But does enforcing that covenant violate the EPC/neutrality?

B.Pure Inaction & The Theory of Governmental Neutrality

1.Two rubrics for complex (hard) state action issues:

a.Private actor must be subject to C’al reqMs b/c the state has delegated a trad’l state (public) fxn to that private entity.

b.Private actor must be subject to C’al reqMs

i.because the state has become entangled with a private entity or

ii.because the state has approved, encouraged, or facilitated private conduct.

2.Deshaney v. Winnebago County Dept of Social Services (1989) US SC [1589] (The paradigmatic pure inaction case)

a.Facts: WY court awarded custody to P’s father. 2 years later social workers received reports that father was physically abusing P. They noted the reports but took no action. Subsequently, father beat him viciously and caused severe brain injuries leaving him perm retarded. P and his mother sued the state dept b/c it deprived him of his liberty in violation of the DPC of the 14thAm.

b.State Action: Not an argument that the st has a gen duty to provide phys security to all citizens. This is a special circs case—P argued (and the court rejected) that prior action created a special duty to take further action.

c.RehnQ’s Opinion: The 14thAm does not guarantee certain min levels of safety and security. It protects the people from the State, not from each other. While aff duties to protect do exist in the context of imprisonment, it is bc the prisoner’s ability to act on his own behalf has been limited so duty to protect may arise. Not the case here so the state is not liable to the injured boy or mother.

d.Brennan, Marshall, Blackmun dissent: They focus on the action the State has taken in establishing a govt entity to deal with these issues. WI law invites and directs citizens and other govtal entities to depend on local depts of social services to protect children from abuse. Therefore, once another entity or private citizen reports suspicions they are made to feel that their job is done, so if the dept of social services does not intervene, no one does. Therefore, children like Joshua are made worse off by the existence of the dept when the persons and entities charged with carrying it out fail to do their jobs.

3.Flagg Brothers v. Brooks (1978) US SC [1591]

a.Rules: Traditional functions of states are not automatically “exclusively reserved” to the state. State acquiescence in priv conduct does not transform it into state action.

b.Facts: P was evicted from her apt and the city marshal arranged for storage of her possessions in D’s warehouse. After disputes about charges, D sent P a letter threatening to sell her stuff. NY law provides that after proper notification, a warehouseman may satisfy debt by selling the stored goods. Brooks sued claiming that such a sale pursuant to the NY law w/o a prior hearing would violate 14thAm DPC. No public officials were named as Ds.

c.Holding: Flagg Brothers’ actions can not be attributed to the state of NY so P was not deprived of an interest encompassed within the 14thAm’s protections.

i.RehnQ’s Opinion: P argued that NY delegated to Flagg Brothers a power trad exclusively reserved to the state (the power to resolve private disputes). Just bc it’s a trad function of the state, it is not (and very few are) exclusively reserved to the state. FN 10- It would intolerably broaden the 14thAm to characterize every body of law in a state as authorizing state action.

ii.Also, state acquiescence in a private action does not convert it to state action. Otherwise mere denial of judicial relief is suff encouragement to make the State responsible for private acts. Leg has simply announced the circs under which it will not interfere with a private sale. The state’s failure to act is no diff than an ordinary stat of lims.

iii.Stevens, White, and Marshall dissent: The maj focuses on the state’s inaction in the actual deprivation instead of the state’s action in enacting the stat. The focus should be on the state’s conduct in AUTHORIZING the deprivation. The DPC and state control of non-consensual deprivations of prop are intended to work together and the C does not contemplate or allow this division of power and responsibility.

4.Lugar v. Edmondson Oil Co. (1982) US SC [1595]

a.Rule: Priv use of state procedures with the help of state officials constitutes state action (perhaps because Edmonson used the law incorrectly).

b.Facts: D creditor sued P in st ct to recover a debt. Pursuant to st law D filed an ex parte petition for prejudgment attachment of some of Lugar’s prop which was issued by the clerk of the state ct and executed by the county sheriff. This sequestered P’s prop until a post-attachment hearing found that it was unwarranted. P sued D for violating his 14thAm due process rights and won.

c.White’s Opinion: Priv use of challenged state procedures with the help of state officials constitutes state action for the purposes of the 14thAm. Two part test: (1) The deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the state is responsible, and (2) the party charged with the deprivation must be a person who may fairly be said to be a st actor (includes priv parties who jointly participate with st officials in the seizure of disputed prop).

d.Powell, RehnQ & O’Connor dissented (Burger dissented separately): This is unfair and completely unforeseeable to D. P should have sued the state or its agents, not D.


a.Discrimination claims are about selective inaction.

b.Reitman v. Mulkey (1967) US SC [1598]

i.Rule: Referendum can be state action.

ii.White’s Opinion: Proposition 14 was unC, violating the 14thAm. Mere repeal of a stat prohibiting racial discrimination is not unC but Prop 14 was unC bc it protected the right to discriminate in the State’s basic charter (CA Const), immune from leg, exec or jud regulation.

iii.Harlan, Black, Clark, Stewart dissented: CA has repealed its prior stats which runs no more afoul of the 14thAm than never passing them at all.

iv.B: Compared to Romer v. Evans…diff is the issue of suspect class.

c.Tarkanian (1988) and Brentwood (2001) US SC [1598]

i.Rule: State University’s compliance with NCAA’s rules did not turn the NCAA’s conduct into state action.

ii.In Tarkanian, the State entity (UNLV) in compliance with NCAA rules and recommendations fired its basketball coach (if they had not the NCAA would have sanctioned the school). The ct held that this did not make the NCAA’s conduct state action. The case was distinguished from Flagg Brothers and Lugar because it was not a question of whether the state was sufficiently involved to treat NCAA’s private conduct as state action, but rather whether the state’s actions, in compliance with NCAA’s rules, turned NCAA’s conduct into state action.

iii.Rule: Single-state org’s entwinement with public institutions (schools) gives it a public character capable of state action.

iv.In Brentwood, single-state

statutory textbook program that provided books to all schools as it applied to discriminatory ones. The ct rejected the argument that priv school parents had a right to provide private ed for their children that would be infringed by lending free textbooks to pub schools but withholding them from priv ones. The ct held that this kind of tangible state fin aid can not facilitate reinforce and support priv discrim (limited the holding’s effect on more generalized public services).

i.Other cases held that giving discriminatory schools tax exempt status is unC.

c.Gilmore v. City of Montgomery: aff’d the prohibition of exclusive use of city facilities by segregated priv schools. Exclusive ability to use these parks undermined the desegregation order because it improved athletic programs. It found however that non-exclusive use of public facilities by discrim priv schools (like visiting a public school for a b-ball game) mightalso hinder desegregation.

d.Rendell-Baker v. Kohn (1982) US SC [1615] (state funding)

i.Burger: Private institution was funded by 90-99% public funds. Fired a teacher and sued under free speech/proc due process. The school’s receipt of public funds did not make the discharge decisions acts of the state that would violate C’al rights to free speech and proc DP. This case was distinguished from Burton bc in Burton when the restaurant profited from discrimination the st agency did as well, whereas here the relationship btw the school and the state is more like that of a contractor and the state—the state derives no profit, just provides funding.

ii.Marshall and Brennan dissented finding that the nexus between the school and the state is so strong that its action must be considered state action.

e.San Francisco Arts & Athletics Inc v. US Olympic Committee (1987) US SC [1616]

i.Facts: Statute gave US Olympic Committee exclusive right to use the word Olympic. When group started “Gay Olympic Games” the committee tried to enjoin the group’s use of the word. The group argued that it was selectively enforcing its right under the stat since it had let many other orgs use the word and therefore it violated the EP portion of the 5thAm due process clause.

ii.5-4 the court held that the committee’s selection was not state action. Powell- just because the gov’t granted the committee a corp charter does not make it a gov’t agent and neither does the use of the trademark do so. This is mere approval or acquiescence (Flagg Bros).

iii.Brennan and Marshall dissented again because of the symbiotic relationship. Like Burton there are mutual benefits. Connection btw US and US Olympic Committee is profound. O’Connor and Blackmun also dissented.

f.Notes: Ex Parte VA: exceeding authority or breaking rules does not take one who is acting under the color of law outside of the state action realm.

g.West v. Atkins (1988) (public function): Just b/c a doc is exercising independent med judgment it does not take away the state action. In Rendell-Baker the fact that the private entities received state funding and were subject to state regulation did not w/o more convert conduct into state action. Gov’t is constitutionally required to provide adequate healthcare so this is a pub function; can’t pawn it off.

h.Lebron v. National RR Passenger Corp. (1995) (Direct govt control)Amtrak advertising case. This was state action because Amtrak is the gov’t itself. Gov’t can’t evade its obligations by resorting to corp form. It is a gov’t actor bc it was established and organized under fed law for the very purpose of pursuing fed govt objectives under the direction and control of fed govt appointees. Scalia stresses the importance of presidential appointment of members of the bd of directors. Otherwise a lot like the Olympic Committee case.

i.Brentwood Academy (2001) 84% of membership was public schools represented by officials acting in their official capacity to provide an integral element of secondary public schooling.

j.Edmonson v. Leesville Concrete Co.: A private civil litigant who used peremptory challenges to exclude jurors on account of race was a state actor for C purposes (overt significant assistance of st officials).

8.Five factors to weigh in State Action Analysis (none are determinative):

a.Symbiotic relationship (do the apparently private entity and the gov’t have a relationship that is mutually beneficial growing out of this action?)

b.State funding?

c.Public confusion/gov’tal endorsement of the entity’s actions (gov’t flag flying)

d.Direct gov’tal control (Amtrak)

e.Public function? (West v. Atkins)