State Action Doctrine
Constitutional rights guaranteed by the Fourteenth Amendment and most other constitutional provisions bind only governmental actors — the “state action” requirement — and do not directly constrain purely private conduct.
Elements / Test
Threshold: Is the actor a state or local government, federal government, or someone whose conduct is attributable to the government?
Tests for private actor = state action:
- Public function: Private entity performs a function traditionally and exclusively reserved to the state (running a company town — Marsh; running a primary election — Terry v. Adams)
- Nexus/entanglement: Sufficiently close relationship between state and private actor — state compelled the conduct, or the two are jointly engaged (Burton v. Wilmington Parking Authority — symbiotic relationship)
- Joint action: Private actor acts in concert with state officials (Lugar v. Edmondson Oil)
- State command: State explicitly authorized or directed the private conduct (Shelley v. Kraemer — judicial enforcement of racially restrictive covenants = state action)
Exceptions and Edge Cases
- No general nexus: Mere state licensing, regulation, or funding of a private entity does not create state action (Jackson v. Metropolitan Edison)
- NCAA: Found to be private in NCAA v. Tarkanian (1988)
- Purely private clubs: Not state actors even if regulated
- 13th Amendment: Unique — applies to private conduct (prohibition on slavery)
- Statutory civil rights law (42 U.S.C. § 1981, § 1982, Title VII): Reaches private discrimination; state action not required
Policy Rationale
Preserves sphere of private autonomy; protects freedom of association. But can allow private discrimination to escape constitutional scrutiny — addressed through civil rights statutes rather than constitutional doctrine.
Key Cases
| Case | Rule |
|---|---|
| Shelley v. Kraemer (1948) | Judicial enforcement of racially restrictive covenants = state action |
| Burton v. Wilmington Parking Authority (1961) | Symbiotic relationship between state facility and private restaurant = state action |
| Jackson v. Metropolitan Edison Co. (1974) | Heavy state regulation alone does not create state action |
| Lugar v. Edmondson Oil Co. (1982) | Joint participation with state officials = state action |
| Brentwood Academy v. Tennessee Secondary School Athletic Assoc. (2001) | Private athletic association = state action due to pervasive entwinement with public schools |