State Action—Beyond Race
STATE ACTION—BEYOND RACE
For most of its century-long existence, the state action limitation of the reach of the fourteenth amendment and fifteenth amendment has had its chief importance in cases involving racial discrimination. From the civil rights cases (1883) until the 1940s, the state action barrier impeded both judicial and congressional protection of civil rights. As the civil rights movement gathered force in the years following world war ii, relaxation of the state action limitation was essential to the vindication of the rights of blacks and others who were making claims to constitutional equality. The warren court accelerated the erosion of the state action barrier, bringing more and more private conduct within the reach of the Fourteenth Amendment. alexander m. bickel accurately described the effects of the Court's decisions as "egalitarian, legalitarian, and centralizing." By the late 1960s some commentators were predicting the state action doctrine's early demise.
Those predictions missed the mark; today the state action limitation remains very much alive. Yet the doctrine's revival has not signaled a return to a restricted role for the national government in protecting rights of racial equality. By the time the burger court set about rebuilding the state action barrier, the Court had provided Congress with a firm basis for federal civil rights legislation in the thirteenth amendment, which has never been interpreted to contain a state action limitation. Furthermore, the Court had generously interpreted various federal civil rights laws to forbid most types of private racial discrimination that had flourished behind the state action barrier in the prewar years.
Although the revival of the state action doctrine has offered little new support for private racial discrimination, that revival has diminished the "legalitarian" and "centralizing" effects of the Warren Court's decisions. Indeed, recent Supreme Court majorities have explicitly extolled the Court's use of the state action doctrine to promote the values of individual autonomy and federalism. The Warren Court had blurred the distinction between state and society, between what is "public" and what is "private." In so doing, the Court assumed that the force of law underlay all private dealings. It is only a short step from this assumption to the judicial creation of a great many constitutional rights of private individuals against other private individuals. Justice john marshall harlan, deploring the trend, argued in united states v. guest (1966) that "[the] constitutional convention was called to establish a nation, not to reform the common law."
The Burger Court has viewed its revival of the state action barrier in precisely these terms, as a contraction of the reach of the Constitution—and especially the reach of the federal judiciary—with a corresponding expansion of both individual autonomy and state sovereignty. The Court's recent majorities have drawn a sharp distinction between society's "public" and "private" spheres, and two implications have followed. First, the Constitution limits governmental, but not private, conduct. Second, if private conduct is to be regulated by government, the preferred regu-1737lator is the state government, and not Congress or the federal courts. The result has been a marked reduction in the Fourteenth Amendment's potential applications to private conduct, even when that conduct is carried on with what the Warren Court used to call "significant state involvement."
Indeed, the very search for "significant state involvement" has been replaced by a new analytical approach. Where the Warren Court determined the existence of state action by considering the totality of interconnections between government and private conduct, today's majority separately examines various arguments for finding state action underpinning private conduct—and typically, as in jackson v. metropolitan edison company (1974) and blum v. yaretsky (1982), rejects those arguments one by one.
In doctrinal terms, the current majority of the Supreme Court has narrowed both of the principal avenues for finding state action in private conduct. First, the "public function" theory that informed the "white primary" cases from nixon v. herndon (1927) to terry v. adams (1953) and the "company town" decision in marsh v. alabama (1946) has been confined to cases in which the state has delegated to a private party a function traditionally performed exclusively by the state. In flagg brothers, inc. v. brooks, (1978) the Court even tightened its rhetoric for such cases, referring to "the sovereign function doctrine."
Second, the various types of state support that previously contributed to findings of "significant state involvement" in private conduct, having been disaggregated in the Court's analysis, have been strictly limited in their separate meanings. Thus: heavy state financial aid to a private school was insufficient to establish state action in rendell-baker v. kohn (1982); the theory of reitman v. mulkey (1967) that the state had "encouraged" private racial discrimination has yet to be employed to find state action in another case; the state's licensing and comprehensive regulation of a public utility was insufficient to establish state action in Jackson v. Metropolitan Edison Company; the precedent of burton v. wilmington parking authority (1961) has been restricted to cases in which government and private actors are so intimately interconnected that their relationship can be called one of "symbiosis"—or, as in Lugar v. Edmondson Oil Company (1982), "joint participation"; and the restrictive covenant precedent of shelley v. kraemer (1948) has become a one-case category. Even a public defender, employed by the state to represent indigent defendants in criminal cases, was held in Polk County v. Dodson (1981) not to be acting under color of law as required by section 1983, title 42, u. s. code, statutory words that are interpreted to track the state action limitation.
The insight that law—and thus the coercive power of the state—provides the foundation for claims of right in human society is not new. Indeed, the proposition teeters on the edge of tautology. To say that a person owns land, for example, is mainly a shorthand statement about the readiness of state officials to employ force to protect that person's exercise of certain rights to control the use of that land. To speak of law itself is to speak of a power relationship. In a large and complex society the point may sometimes become diffused, but the potential application of coercive power, wielded by governmental officials, is one of the chief features differentiating interactions in nearly all human societies from those in a jungle. The publicprivate distinction may have its uses, but candid description is not one of them.
Nonetheless, Justice william h. rehnquist, writing for the Supreme Court in the Flagg Brothers case, reaffirmed "the "essential dichotomy' between public and private acts" as a feature of American constitutional law. State action, for purposes of interpreting the Fourteenth Amendment, could not be found on the potential enforcement of law by state officials, but only on its actual enforcement. To rule otherwise, Rehnquist said, would "intolerably broaden" the notion of state action. Unquestionably, the publicprivate distinction is secure in American constitutional law.
The appeal of the public/private distinction for the judges and commentators who create constitutional doctrine is readily identified. If any one value lies at the core of American constitutionalism, it is the protection of individual freedom against arbitrary exercises of governmental power. A central assumption in this value scheme is that a "neutral" body of law is no more than the playing field on which individuals autonomously pursue their own goals. The same assumption is also reassuring about autonomy itself—not just that autonomy is valuable, but that autonomy exists. It is hard to see how American constitutionalism could get along without some form of the publicprivate distinction, absent a fundamental transformation of the idea of constitutionalism.
Plainly, the publicprivate distinction would be compatible with a definition of state action much broader than the current one. The present restrictive interpretation of the state action limitation, in other words, serves purposes beyond the maintenance of a zone of individual freedom against arbitrary governmental interference. Those purposes are not far below the surface of the Supreme Court's recent state action opinions. The Supreme Court's current restrictive readings of the state action limitation are congenial to Justices who want to preserve state power against the intrusion of the federal government, and who want to restrict the role of the judiciary in second-guessing the political process. One's attitude toward the state action issue, as toward a great many constitutional issues in the last generation, will reflect one's general views about judicial activism and restraint. The consequences of these choices are not merely institutional; they affect substantive rights of liberty and equality. Every decision reinforcing the Fourteenth Amendment's state action barrier is a decision not to vindicate a claim of Fourteenth Amendment rights.
Kenneth L. Karst
Note 1974 State Action: Theories for Applying Constitutional Restrictions to Private Activity. Columbia Law Review 74: 656–705.
Symposium 1982 The Public/Private Distinction. University of Pennsylvania Law Review 130:1289–1608.
Tribe, Laurence H. 1985 Constitutional Choices. Pages 246–268. Cambridge, Mass.: Harvard University Press.