Constitutional Law II
State Action Doctrine
Overview
14th Amendment applies only to states and
state actors (“no state shall ….”)
What does it mean for the state to act?
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As juridical entity – e.g., legislation
Through individuals
 State officers doing some act violating constitution
1. Must be responsible for constitutional injury
 Private parties acting on behalf of state
1. Must be responsible for constitutional injury AND
2. Must be exercising some degree of state authority
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Civil Rights Cases
(1883)
Only state actions can violate the 14th
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Congress cannot legislate (private) civil rights
Only states can do so - federalism survives
States can act to prohibit discrimination
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Fall 2005
What if they don’t? What if private discrimination is condoned by state inaction?
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Civil Rights Cases
(1883)
Consider this argument:
"The fourteenth amendment not only prohibits the
making or enforcing of laws which shall abridge
the privileges of the citizen; but prohibits the
states from denying to all persons within its
jurisdiction the equal protection of the laws.
Denying includes inaction as well as action.
And denying the equal protection of the laws
includes the omission to protect, as well as
the omission to pass laws for protection.“
Letter from Justice Bradley to Justice Wood (1871)
What happened to Justice Bradley? See here
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Exceptions to State Action Req.
13th Amendment
Right to Travel
Statutes reaching private conduct
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State laws
Federal laws
 Commerce Clause
 Section 5?
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Fall 2005
Notice: such laws would create NEW RIGHTS
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Private parties as state actors
Public function strand (sovereign function)
Endorsement/Delegation strand (state
enforcement of private decisions)
Entanglement strand (nexus)
Fall 2005
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Private parties as state actors
Public function strand (sovereign function)
Endorsement/Delegation strand (state
enforcement of private decisions)
Entanglement strand (nexus)
Fall 2005
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White Primary Cases
Nixon v. Herndon (1927)
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Texas statute excluding blacks from primary
elections invalidated - state action easily met
Smith v. Allwright (1944)
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Party exclusion of blacks, under state law delegating voting rules to parties
 Private political parties perform “public function” in
relation to state-conducted election ballot
Terry v. Adams (1953)
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Fall 2005
Pre-primary straw vote was “public function”
 Jaybird Party functions as party nominating com.
 Substance over form/alism
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Labor Unions
Steele v. Louisville & Nashvill RR (1944)
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Under federal Railway Labor Act, labor union
exercises quasi-legislative power as statutory
representative of work force
Murphey (concurrence)
 Labor Unions not necessarily performing public
function, but
 Labor Act must be construed to forbid discrimination
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Fall 2005
If the Act authorized Unions to discriminate, that would
similarly constitute state action (under delegation strand)
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Marsh v. Alabama
(1946)
Chickasaw, AL (company town)
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Marsh v. Alabama
(1946)
Attributes of Chickasaw, AL
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privately owned
municipal facilities
commercial businesses as shopping center
County Sheriff hired as policeman
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Evans v. Newton
(1966)
Privatization of public park
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Charitable trust enforced by court
Formally private (private trustees)
 But only nominally; still operates as public park
 The public function it served is not repudiated
Public function given expansive scope

Nature of enterprise
 Parks traditionally perceived as municipal function
 State services (maintenance)
 Open to all (whites)
When it reverts to Bacons heirs (cy pres): no state action
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Flagg Bros v. Brooks
(1978)
Claim

Warehouseman’s sale of possessions without
pre-deprivation hearing deprives due process
 Goods deposited by County Sheriff after eviction
 Lien sale authorized by state law
Issues
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Is Flagg Bros performing a public function?
Is it exercising power delegated by the state?
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Flagg Bros v. Brooks
(1978)
Revamping Public Function Doctrine
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Exclusive sovereign state function
 Dispute resolution (even when authorized by
statute) is not the exclusive province of the state
Delegation Doctrine
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Mere authorization by state of private action
does not turn private party into state actor
 A lot of private action is authorized by state law
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Flagg Bros v. Brooks
(1978)
Stevens dissent
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Sovereign Function strand
 Why must the function be “exclusively” sovereign?
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Delegation strand
 Does Court mean whenever the state authorizes, but
does not compel, one private party to take another’s
property, there’s no constitutional violation?
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Isn’t the const’l problem with the state statute?
 Doesn’t that satisfy state action per se?
 When state is defendant, state action doctrine looks
to whether the state is “responsible” for the injury
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Private parties as state actors
Public function strand (sovereign function)
Endorsement/Delegation strand (state
enforcement of private decisions)
Entanglement strand (nexus)
Fall 2005
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Shelley v. Kramer
(1948)
Restrictive covenants
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Had they been by law, no problem
But merely agreements among private parties
State involvement
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Courts enforce land covenants all the time, as
well as private discrimination.
 Do they ever refuse to enforce covenants?
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If they are against “public policy”
 By enforcing these covenants, court signals they are
consistent with public policy
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Fall 2005
State endorses the private action
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Shelley v. Kramer
(1948)
Nature of State involvement
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Covenants are in the nature of land use
regulation (zoning), a governmental function
Seems that state has delegated this regulatory
power to private parties
Confirmed by state enforcing private action
against willing buyer and seller
 I.e., forcing seller to discriminate
Contrast state neutrality
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Fall 2005
State enforces all private decisions of this
nature
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Brentwood Acad. v. TSSAA
(2001)
TSSAA regulates public & private schools in
their athletic competitions
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Not unlike other private associations that set
standards for their members
 Homeowner/condo associations
 ABA, NCAA
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No state law grants regulatory power to TSSAA
Nor do state officers enforce TSSAA sanctions
State does not endorse its actions
State is neutral
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Brentwood Acad. v. TSSAA
(2001)
Third SA theory - Entanglement
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Entwinement/nexus
Factors showing symbiotic relationship:
 Membership comprised mostly of Public schools
 Officers are public schl administrators/state officers
 Monopoly status
 Funded by state
 Regulates other state actors (in lieu of Bds of Ed)
 Recognized by State Bd of Ed as authority
 Role of athletics in public education
No single or group of factors is dispositive
This is a qualitative judgment, not quantitative
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Brentwood Acad. v. TSSAA
(2001)
Additional factors
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Factors mitigating against state action
 Established as private non-profit corporation
 State imposes taxes on TSSAA
 No direct state supervision, espec. of challenged rule
 State does not benefit (symbiotic relationship) from
TSSAA’s actions ??
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Private autonomy concerns
 TSSAA comprised solely of other entities, most of
whom are state schools
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Private parties as state actors
Public function strand (sovereign function)
Endorsement/Delegation strand (state
enforcement of private decisions)
Entanglement strand (nexus)
Fall 2005
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Burton v. Wilmington
(1961)
Eagle Coffee Shoppe, lessee of
Wilimington Parking Authority
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What makes Eagle a state actor here?
 lessee of public property?
 situated in public bldg. with public markings?
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imprimatur of state approval
 receives public services (e.g., maintenance)?
 WPA failed to include non-discrim. in Eagle lease?
 Eagle profits contribute to financial success of WPA
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“Symbiotic relationship” betw. state & private actor
Totality of circumstances
 “insinuated itself into position of interdependence”
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Jackson v. Met. Edison
(1974)
Does Public Utility satisfy public function?
NB: state must afford DP, but not private parties
Private Qualities
Public Qualities
1. Private ownership
1. State regulated
2. Private employees
2. State monopoly
3. Private good/service? 3. Public good/service?
4. “Public” utility
Everyone with a
patent or copyright
But all businesses
are state regulated
Fall 2005
Relic of common law
(to enable regulation)
Begs the Question
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Jackson v. Met. Edison
(1974)
Public Function Doctrine limited

Must be a
 traditionally
 exclusively
 “sovereign” function
somewhat of a selffulfilling prophecy –
compare private security
guards, schools, prisons
Marshall dissent
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Fall 2005
State cannot offload essential public services,
so as to avoid constitutional responsibility
Does that accurately describe electric utilities?
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Jackson v. Met. Edison
(1974)
Even if Metro Edison is not performing a
public function, was the state a “joint
participant” in causing the injury?
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As a regulated utility, Met. Edison had to have
both its rates and procedures approved
 including disconnection procedure
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Fall 2005
To what degree is state responsible for the
procedure used by Met Edison to terminate
service?
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Reitman v. Mulkey
(1967)
Cal. Const. Art. I, § 26:
“Neither the State nor any subdivision [shall limit] the
right of any person .. to decline to sell, lease or rent …
to such person or persons as he, in his absolute
discretion, chooses.”
What constitutes the state action?

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Decisions by owners not to sell/rent to blacks?
Exercise of legislative power via initiative?
Where was the discrimination?
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Repeal of anti-discrimination law? No
Creating 2-tier access to political relief
 fair housing laws more difficult to adopt than other laws
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