Chapter 12

STATE ACTION

Nearly all of the rights guaranteed by the Constitution to individuals are protected only against interference by government. This is sometimes called the requirement of “state action.” However, sometimes even a private individual’s actions are found to be “state action,” and thus subject to the Constitution. Here are the main concepts in this Chapter:

• “Public function” doctrine: Under the “public function” doctrine, if a private individual or group is entrusted by the state to perform functions that are traditionally viewed as governmental in nature, the private individual becomes an agent of the state, and he constitute “state action.” Therefore, his acts must obey the Constitution.
• “State involvement” doctrine: Alternatively, a private individual’s conduct may be transformed into “state action” if the state is heavily involved in those activities. This is the “state involvement” branch of state-action doctrine. Examples are where:
  • the state “commands” or “requires” the private person’s action;
  • the state “encourages” the private party’s actions;
  • the state and the private actor have a “symbiotic” or “mutually beneficial” relationship;
  • the state is “entangled” with the private actor (e.g., they act together to carry out the action being challenged).

I.INTRODUCTION

A. Only state conduct covered: Nearly all of the rights and liberties which the Constitution guarantees to individuals are protected only against interference by governmental entities. For instance, the guarantees of due process and equal protection, given by §1 of the Fourteenth Amendment, are introduced by the words “No State shall. … ”

1. Self-executing rights:  In fact, of the constitutional rights which are “self-executing” (i.e., capable of enforcement by courts even without specific congressional legislation enacted to enforce the right), only the Thirteenth Amendment’s prohibition on slavery (discussed infra, p. 484) includes private as well as governmental conduct. See Tribe, p. 1688, n. 1.

2. Need for “state action” doctrine:  Therefore, in virtually every litigation in which an individual argues that his constitutional rights have been violated, the court can grant relief only if it finds that there has been state action, i.e., some sort of participation by a governmental entity sufficient to make the particular constitutional provision applicable. This chapter examines the various ways in which the Supreme Court has gone about determining whether state action exists.