State Action

State Action 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