State actor

The Fourteenth and Fifteenth Amendments were principally intended to protect former slaves and to guarantee due process of law, the equal protection of the laws, and the right to vote against state infringement. In the Civil Rights Cases (1883), the Supreme Court held that the Fourteenth Amendment applies only to action directly authorized or sanctioned by state law. This narrow interpretation of the state action requirement excluded any private, nongovernmental act of racial discrimination from the reach of federal power, thus inhibiting the potential scope of the Reconstruction Amendments. One consequence of this approach was Grovey v. Townsend (1935), which sustained the white primary, a device employed to circumvent the Fifteenth Amendment's guarantee of nondiscriminatory access to the ballot.

Between 1944 and 1972, the Court took a less liberal view of state action. Reversing Grovey in Smith v. Allwright (1944), the Court held that since primaries play an integral role in governmental processes, they must be considered as officially sanctioned by the state. Marsh v. Alabama (1946) ruled that a town owned by a private company performed traditional public functions. Less obvious connections between private and state action were discerned in cases involving housing and public accommodations. Shelley v. Kraemer (1948) held that while racially restrictive covenants were private contracts, state court enforcement rendered them unconstitutional. Burton v. Wilmington Parking Authority (1961) determined that the discriminatory practices of a restaurant located on premises leased from a municipal parking facility constituted state action.

Expansion of the concept of state action paralleled a series of federal court decisions that struck down state segregation laws. It also reflected political realities: until state and federal legislatures prohibited racial discrimination in access to housing, goods, and services, the federal judiciary provided an alternative recourse. The Sit‐In Cases (1964) were illustrative. They stemmed from the arrest and conviction for trespass of African‐Americans who refused to leave segregated lunch counters (see Sit‐In Demonstrations). The Supreme Court reversed the convictions because the restaurant operators' deference to public policy and police enforcement of their discriminatory conduct were tantamount to state denial of the equal protection of the laws. Passage of the Civil Rights Act of 1964 transferred responsibility for assuring equal access from the Court to Congress.

State tolerance of discrimination may constitute state action. In Terry v. Adams (1953), a privately conducted, unofficial, whites‐only pre‐primary election was deemed state action. Reitman v. Mulkey (1967) invalidated a voter‐initiated and ‐ratified state constitutional amendment that secured freedom of choice in sales and rentals of residential property. Since the amendment's intended effect was the repeal of an open occupancy law, voters had authorized discrimination. Four dissenting justices asserted that the amendment's neutral wording did not condone discrimination (see Housing Discrimination).

Subsequent cases drew distinctions, which some justices and commentators feared earlier cases had blurred, between the private and public realms and between tacit state approval of private conduct and neutrality toward it. In Moose Lodge v. Irvis (1972), the Court did not regard the discriminatory conduct of a private club that held a routinely issued liquor license as state action. The three dissenters argued that the limited number of licenses, one of which the club held, restricted the availability of access for African‐Americans, thereby denying them equality of treatment under the law (see Private Discriminatory Associations).

Moose Lodge marked a significant contraction of the state action doctrine. The Supreme Court has consistently rejected invitations to jettison the doctrine by overruling the Civil Rights Cases and has insisted that state action is present only when private parties perform customary governmental functions, or when the state has required or actively encouraged the challenged private conduct, or when that conduct may be attributed to a state official or to a party acting in concert with state officials. Jackson v. Metropolitan Edison Co. (1974), for example, found no violation of due process in the termination of service without prior hearing by a public utility possessing a government‐granted monopoly.

Expansion of the state action doctrine composed a crucial element of the Court's overall response to racial discrimination. Some commentators believe that enactment of federal public accommodations and fair housing legislation diminishes the need for state action jurisprudence manifested in Wilmington Parking, Shelley, and Reitman. Nonetheless, critics of the current approach argue that private parties who are substantially related to government, such as state‐sanctioned regulated monopolies that provide the sole source of service available to consumers, should be held to the same obligations that the Fourteenth Amendment imposes on the states.

See also Fourteenth Amendment; Race and Racism.

Bibliography

• Maimon Schwarzchild, Value Pluralism and the Constitution: In Defense of the State Action Doctrine, Supreme Court Review (1988), pp. 129–161

— Mary Cornelia Aldis Porter

A requirement for claims that arise under the Due Process Clause of the Fourteenth Amendment and civil rights legislation, for which a private citizen seeks relief in the form of damages or redress based on an improper intrusion by the government into his or her private life.

The U.S. Supreme Court has established that the protections offered by the Fourteenth and Fifteenth Amendments to the U.S. Constitution apply only to actions authorized or sanctioned by state law. The "state-action" requirement means that private acts of racial discrimination cannot be addressed under these amendments or the federal civil rights laws authorized by the amendments.

The Fourteenth Amendment prohibits a state from denying any person due process of law and the equal protection of the law. The Fifteenth Amendment prohibits a state from infringing on a person's right to vote. Both amendments were passed after the Civil War to guarantee these constitutional rights to newly freed slaves. During Reconstruction, Congress enacted many laws that it claimed were based on these amendments. Armed with this constitutional authority, Congress, in the Civil Rights Act of 1875, sought to prohibit racial discrimination by private parties in the provision of public accommodations, such as hotels, restaurants, theaters, and public transportation.

The Supreme Court struck down the 1875 act in the Civil Rights cases, 109 U.S. 3, 3 S. Ct. 18, 27 L. Ed. 835 (1883). It held that under the Fourteenth Amendment, "it is state action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the amendment." The Court relied on language of the amendment that provides that "no state" shall engage in certain specified conduct.

This restrictive reading of the state-action requirement permitted racial discrimination to flourish in the South. For example, the Supreme Court upheld the "white primary," a device used to circumvent the Fifteenth Amendment, in Grovey v. Townsend, 295 U.S. 45, 55 S. Ct. 622, 79 L. Ed. 1292 (1935). The Court reasoned that because political parties were private organizations, their primary elections did not constitute state action.

The Supreme Court began to move away from a strict state-action requirement in the 1940s. In Smith v. Allwright, 321 U.S. 649, 64 S. Ct. 757, 88 L. Ed. 987 (1944), the Court struck down the white primary as violative of the Fifteenth Amendment, thus overruling Grovey. The Court now found that primary elections played an important part in the democratic process and must be considered as officially sanctioned by the state.

The Court extended this type of analysis in Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161 (1948), ruling that racially discriminatory restrictive covenants affecting real estate were unenforceable in state courts, because any such enforcement would amount to state action in contravention of the Fourteenth Amendment. Groups of homeowners used restrictive covenants to prevent the sale or rental of their homes to African Americans, Jews, and other minorities. A restriction was included in their real estate deeds forbidding such sale or rental. Until 1948 this form of private discrimination was thought to be legal because the state was not involved.

By the 1960s the Supreme Court was applying a more sophisticated analysis to determine if the state-action requirement had been met. In Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S. Ct. 856, 6 L. Ed. 2d 45 (1961), the Court found state action when a state agency leased property to a restaurant that refused to serve African Americans. It stated that state action in support of discrimination exists when there is a "close nexus" between the functions of the state and the private discrimination.

Nevertheless, the Court has not abandoned the state-action requirement. In Moose Lodge v. Irvis, 407 U.S. 163, 92 S. Ct. 1965, 32 L. Ed. 2d 627 (1972), a racially restrictive private club refused to serve the African American guest of a white member. The Court determined that the mere grant of a liquor license did not convert the private club's discriminatory policy into state action under the Fourteenth Amendment.

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A state actor is a term used in United States law to describe a person who is acting on behalf of a governmental body, and is therefore subject to regulation under the United States bill of rights including the First, Fifth and Fourteenth Amendments, which prohibit the federal and state governments from violating certain rights and freedoms.

Although at first blush the term would seem to include only persons who are directly employed by the state, the United States Supreme Court has interpreted these amendments and laws passed pursuant to them to cover many persons who have only an indirect relationship with the government. Controversies have arisen, for example, over whether private companies that run towns (the "company-town") and prisons (traditionally a state function) can be held liable as state actors when they violate fundamental civil rights. This question remains unresolved, but the Supreme Court has held private citizens to be liable as state actors when they conspire with government officials to deprive people of their rights. Conversely, in National Collegiate Athletic Association v. Smith, the Supreme Court has found that the National Collegiate Athletic Association is not a state actor, despite its heavy reliance on state-supported educational institutions.

Unlike state actors, private actors are generally not required to afford individuals the constitutional rights mentioned above. In nearly all U.S. states, private shopping center owners can eject protesters from their land for trespassing, and private associations can eject members or deny admission to applicants, with no warning and for no reason. But in a handful of states, notably California, state constitutional protections and certain common law rights have been extended to limit private actors. California allows the peaceful exercise of free speech in private shopping centers (see Pruneyard Shopping Center v. Robins (1980)) and requires certain types of private actors to afford current or potential members a rudimentary version of procedural due process called fair procedure.

References

• Black, Charles. "The Supreme Court 1966 Term—Foreword: 'State Action,' Equal Protection, and California's Proposition 14." Harvard Law Review. 81:69 (1967)
• Chemerinsky, Erwin. "Rethinking State Action." Northwestern University Law Review. 80:503 (1985).
• Friendly, Henry J. "The Public-Private Penumbra—Fourteen Years Later." University of Pennsylvania Law Review. 130:1289 (1982).
• Stone, Christopher D. "Corporate Vices and Corporate Virtues: Do Public/Private Distinctions Matter?" University of Pennsylvania Law Review. 130:1441 (1982).
• Strickland, Henry C. "The State Action Doctrine and the Rehnquist Court." Hastings Constitutional Law Quarterly. 18:587 (1991).
• Glennon, Jr., Robert J. and Nowak, John E. "A Functional Analysis of the Fourteenth Amendment 'State Action' Requirement." Supreme Court Review. 1976:221.

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