State Action (Update 1)

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America's federal constitutional system generally protects individual rights only against violation by the national and state governments, their agencies, and officials. State action doctrine limits the scope of constitutional rights guarantees. If a state police officer arrests a criminal suspect without an arrest warrant, for example, state action is clearly present and the Constitution's Fourth Amendment and Fourteenth Amendment search and seizure prohibitions apply. By contrast, if a private individual or organization infringes on another private person's constitutional liberties, the courts may well not find state action, and the federal Constitution will not provide a remedy. The more controversial extensions of the state action doctrine involve cases where constitutional injuries are caused in part by ostensibly private actors. At its furthest reaches, then, the doctrine depends on workable and principled standards for attributing the constitutionally harmful conduct of a private person to the public sector.

In Lugar v. Edmonson Oil Co. (1982) Edmonson had obtained an invalid attachment order from a state court clerk to sequester Lugar's property. Lugar contended that Edmonson had acted jointly with the state to deprive him of property in an unconstitutional manner. Justice byron r. white's opinion in Lugar explained that in order for any constitutional rights claimant to attribute a private defendant's wrongful conduct to the federal or state government, the claimant must satisfy two independent inquiries. First, the private defendant must be sufficiently identified with the government to be fairly labeled a state actor. This might be called the "identity" inquiry. Second, the defendant's wrongful conduct must have been the direct and affirmative cause of a constitutional injury; the government will not be held liable for an error of omission or a failure to prevent constitutional injury. This might be called the "causality" inquiry. Because the state court official had assisted Edmonson in using the state's constitutionally defective procedures to sequester Lugar's property, the Court held that the identity and causality requirements were met.

Two critical decisions in the 1970s, jackson v. metropolitan-edison company (1974) and flagg brothers, inc. v. brooks (1978), set extremely narrow terms for the current identity and causality standards. Even if a government delegates general law enforcement powers to a private individual (as in state self-help repossession statutes) or heavily regulates a private industry (as in state utility rate regulation), the private party will be identified with the government only if these powers and operations had been exercised traditionally and exclusively by the government. Even if the government knew, or should have known, of the private party's wrongdoing, causality now requires evidence that the government affirmatively compelled or specifically approved the practice that harmed a constitutional liberty.

Today the Supreme Court guards these narrow boundaries of the state action doctrine with a rigorous and sterile formalism. In two unusual cases emerging from the arena of amateur sports, the Court recently shielded private organizations from constitutional liability by discounting their functional relationships with the government. After the United States Olympic Committee refused to license use of the name Gay Olympic Games for a homosexual international athletic event, a Fifth Amendment challenge for discrimination in San Francisco Arts & Athletics v. United States Olympic Committee (1987) failed on the basis that the committee was not a governmental actor to whom constitutional prohibitions apply. Because the committee coordinated activities that were not traditional government functions, even Congress's unprecedented grant to the committee of exclusive regulatory authority over American athletic organizations and of unlimited trademark rights in the name Olympic did not satisfy the identity tests. Furthermore, because the committee's trademark enforcement decisions went unsupervised by any federal official, causality could not be attributed to the national government.

In National Collegiate Athletic Association v. Tarkanian (1988) the Court insulated the NCAA from liability for violation of a state university basketball coach's civil rights, ruling that the university's voluntary compliance with NCAA disciplinary recommendations did not transform the NCAA's private conduct into state action. Although the NCAA's findings made at NCAA hearings of NCAA rules violations had influenced the university's decision to suspend Tarkanian in accord with its NCAA membership agreement, the Court reasoned that NCAA had neither imposed the sanction directly nor compelled the university to act within the meaning of the causality standards.

Theoretically, the state action doctrine may serve two important purposes. Jurists defend the doctrine as a safeguard of federalism : by preventing the federal judiciary from enforcing constitutional rights guarantees against private violators, the doctrine preserves the traditional realm of state police power to regulate private civil rights. Additionally, the doctrine may promote liberal legal values: to the extent that it limits the Constitution's interference with private exercise of federal and state statutory or common law rights, the doctrine fosters a realm of individual freedom of action.

To serve federalism and liberalism meaningfully, however, state action requires a dichotomy between public and private action that is both definite and defensible. The current standards for identity and causality could be challenged on both accounts. Given the highly bureaucratic state of modern America, characterized by government penetration into most private economic and social dealings, the integrated public and private venture is a commonplace. Yet, identity and causality demand the conceptual division of integrated operations into discrete practices that are traditionally governmental, governmentally compelled, and injury-causative. Practical rules for this division will be difficult for courts to formulate and apply; reliance on criteria such as tradition and government compulsion will result in line-drawing of the most arbitrary and unprincipled sort.

Moreover, the doctrine undermines its own raison d'être: with its narrow focus, it will not rip the veil away from nominally private actors who wield governmentally delegated powers to destroy individual rights. Although the Constitution permits government to "privatize" the functions that it otherwise would perform, the state action doctrine ought not to immunize the government from liability for private violations of its constitutional obligations.

However appropriate for federal constitutional purposes, the state action doctrine is often an anomaly in state constitutional law interpretation. The texts of many state bill of rights provisions do not explicitly target state action for their prohibitions; indeed, a number of state constitutions directly regulate specific transactions among private individuals and corporations. Because the states do not recognize county and municipal governments as coordinate sovereigns, state action need not reinforce federalism interests. State high courts might reject the conceptual limitations of the federal state action doctrine to provide stronger protection of civil liberties under their state constitutions against private infringements.

David M. Skover


Alexander, Larry A. and Horton, Paul 1988 Whom Does the Constitution Control? Westport, Conn.: Greenwood Press.

Chemerinsky, Erwin 1985 Rethinking State Action. Northwestern University Law Review 80:503–557.

Skover, David M. 1992 State Action Doctrine. In Collins, Skover, Cogan, and Schuman, State Constitutional Law and Individual Rights: Cases & Commentary. Durham, N.C.: Carolina Academic Press.

Symposium 1982 The Public/Private Distinction. University of Pennsylvania Law Review 130: 1289–1608

Van Alstyne, William and Karst, Kenneth L. 1961 State Action. Stanford Law Review 14: 3–58

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State Action (Update 1)

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