Constitutional Law: Protection of Individual Rights: State Action

  • State Action: State action is a threshold requirement of governmental conduct which must be satisfied before private discrimination can be prohibited under the 14th and 15 Amendments.
    • (this is the first step in an essay discussion. You must tell the graders that you have satisfied state action).
    • Applies also to First Amendment rights.
    • Watch out for instances when you have a private person discriminating in some way and the plaintiff is trying to prevent this conduct. In order to get into court, the plaintiff must show some link between the private actor and the government.
    • Congress, by statute may apply Constitutional norms to private conduct
      • 13th Amendment. May be used to prohibit private race discrimination. The 13th A prohibits slavery and involuntary servitude and applies to private conduct. Under this amendment, Congress has broad power to prohibit private race discrimination and state action is not necessary.
      • 13th/14th A. discrimination includes:
        • Obtaining employment
        • Obtaining affordable housing
        • Public benefits
        • Government services
    • Areas where private conduct must comply with the Constitution:
      • Public Function: Where a private entity is performing acts traditionally and exclusively carried out by state. A company town: running a city is a task done by the government; when a private entity does it, it has to comply with the Constitution. 14th A. equal protection applies.
        • NO public function for privately owned utility company under heavy state regulation. (no state action).
      • Entanglement Exception: Court looks to aggregate of contacts between private individual (i.e. the one doing the discriminating) and the government itself to see if there is a symbiotic relationship or significant state involvement.
        • STATE ACTION when government leases premises to restaurant that racially discriminates.
        • STATE ACTION for public schools.
        • STATE ACTION when a private school that racially discriminates gets books from the state.
        • STATE ACTION when a private entity regulates interscholastic sports within a state.
        • NO STATE ACTION only because the government has granted a private club a liquor license.
        • NO STATE ACTION for a private school merely licensed by the state.
        • NO STATE ACTION when a private school (99% funded by the government) fined a teacher because of her speech. Government subsidy is not enough for finding state action.
        • NO STATE ACTION when the NCAA orders the suspension of a basketball coach at a state university.
      • Encouragement Exception: State Action when government encourages/facilities private acts of discrimination.
        • STATE ACTION when the state encourages private discrimination by enforcing racially discriminating zoning ordinance.