State Action Doctrine in Constitutional Law
The Constitution is a charter of limitations on government power. It tells the state what it may not do — what speech it may not suppress, what searches it may not conduct, what classifications it may not make. It says almost nothing about what private individuals or corporations may do. This fundamental principle — that the Constitution restricts only government conduct, not private action — is known as the state action doctrine.
The state action doctrine is rooted in the text and structure of the Constitution. Most constitutional provisions, including the Bill of Rights and the Fourteenth Amendment, are framed as prohibitions on government. The First Amendment begins “Congress shall make no law.” The Fourteenth Amendment provides that “no State shall” deprive any person of life, liberty, or property. These textual commands limit government, not private actors. A private employer who fires an employee for their political views, a private club that excludes members on the basis of race, and a private landlord who refuses to rent to same-sex couples do not violate the Constitution, however objectionable their conduct may be.
The Rationale for the State Action Doctrine
The state action doctrine serves several important purposes. It preserves individual liberty by leaving private conduct free from constitutional regulation. It maintains the distinction between constitutional law, which defines the limits of governmental power, and statutory law, which may regulate private conduct through democratically enacted legislation. It prevents the federal courts from becoming general regulators of private conduct, preserving the authority of state and federal legislatures to determine the proper scope of private regulation.
Critics of the state action doctrine argue that it creates a gap in constitutional protection. When private actors wield enormous power — as social media platforms, large employers, and dominant corporations do — the Constitution’s silence on private conduct leaves individuals vulnerable to private oppression. Proponents respond that the proper remedy for private oppression is legislation, not constitutional interpretation, and that expanding the state action doctrine would dilute the Constitution’s focus on governmental power.
When Private Conduct Becomes State Action
The Supreme Court has recognized several circumstances in which otherwise private conduct may be treated as state action for constitutional purposes. These exceptions ensure that the government cannot evade constitutional restrictions by delegating its functions to private parties.
The Public Function Test
When a private actor performs a function that has been traditionally and exclusively performed by the government, their conduct may be deemed state action. In Marsh v. Alabama (1946), the Court held that a company-owned town could not restrict speech on its streets because the company was performing the traditional governmental function of operating a town. The company stood in the shoes of the state for First Amendment purposes.
The public function test has been narrowly applied in subsequent cases. In Flagg Bros. v. Brooks (1978), the Court held that a private warehouseman’s sale of stored goods under state law did not constitute state action because the resolution of private disputes is not an exclusively governmental function. The Court has also held that running a shopping center is not a public function, and that a private utility company’s termination of service does not constitute state action.
The Entanglement Test
Private conduct may also be deemed state action when the government is sufficiently entangled with the private actor. Entanglement can take several forms. When the government compels the private conduct, as in Adickes v. S.H. Kress & Co. (1970), where a restaurant refused service to a white teacher accompanying Black students, the private actor’s discriminatory conduct may be attributable to the state.
When the government encourages or is intimately involved in the private conduct, state action may also be found. In Burton v. Wilmington Parking Authority (1961), the Court held that a private restaurant leasing space in a public building could not discriminate because the state was a joint participant in the restaurant’s operation. The symbiotic relationship between the state and the private lessor made the private discrimination attributable to the state.
Judicial Enforcement of Private Agreements
A particularly difficult question concerns whether judicial enforcement of private agreements constitutes state action. If a private landowner signs a racially restrictive covenant and a court enforces it against a buyer, has the state acted to discriminate? In Shelley v. Kraemer (1948), the Court held that judicial enforcement of racially restrictive covenants constitutes state action in violation of the Equal Protection Clause.
Shelley v. Kraemer has been criticized for potentially implying that all judicial enforcement of private agreements constitutes state action, which would subject all private conduct to constitutional scrutiny when litigated. The Court has limited Shelley to cases involving racial discrimination, and lower courts have generally declined to extend its reasoning to other contexts.
State Action and the Modern Regulatory State
The expansion of government regulation in the twentieth century raised new questions about the state action doctrine. When the government extensively regulates an industry, does private conduct within that industry become state action? The Court answered this question in Jackson v. Metropolitan Edison Co. (1974), holding that extensive regulation does not convert private conduct into state action. The mere fact that a business is heavily regulated, or that it provides an essential public service, does not make its actions attributable to the state.
Similarly, the receipt of government funding does not automatically make private conduct state action. In Rendell-Baker v. Kohn (1982), the Court held that a private school that received nearly all of its funding from the government did not engage in state action when it fired a teacher. The Court emphasized that the decision to terminate employment was not coerced or influenced by the government and that the school’s function was not traditionally and exclusively governmental.
The Symbiotic Relationship Test
The symbiotic relationship test, derived from Burton v. Wilmington Parking Authority, considers whether the state and a private actor are so intertwined that the private actor’s conduct should be attributed to the state. The test applies when the state has so far insinuated itself into a position of interdependence with the private actor that it must be recognized as a joint participant in the challenged activity.
Lower courts have applied the symbiotic relationship test narrowly. The mere receipt of government benefits, the payment of government funds, or the presence of government regulation does not create a symbiotic relationship. The test requires a close nexus between the state and the specific conduct at issue, not merely a general relationship between the state and the private actor.
The Court’s decision in Blum v. Yaretsky (1982) illustrates the narrow scope of the test. The Court held that nursing homes that received Medicaid funding and were extensively regulated by the state did not engage in state action when they transferred patients to lower levels of care. The state’s involvement in the general regulatory framework was insufficient to convert the private nursing home’s medical decisions into state action.
State Action in the Digital Age
The rise of digital platforms has renewed debates about the state action doctrine. When social media platforms moderate content, they exercise significant power over public discourse. But because they are private actors, their content moderation decisions are not subject to First Amendment constraints. The First Amendment protects their right to decide what content to host, and the state action doctrine prevents users from bringing constitutional claims against them.
Some scholars and policymakers have argued that social media platforms should be treated as state actors because they perform functions analogous to public forums. Others have proposed legislation requiring platforms to respect free speech principles. These debates highlight the continuing significance of the state action doctrine in an era when private power increasingly rivals governmental power.
Frequently Asked Questions
Does the state action doctrine apply to all constitutional rights? Yes. The state action requirement applies to all constitutional provisions that limit government conduct, including the Bill of Rights, the Fourteenth Amendment, and the Fifteenth Amendment. The Thirteenth Amendment is unique in that it applies directly to private conduct, prohibiting slavery and involuntary servitude regardless of state action.
Can Congress create new constitutional rights that apply to private conduct? Congress may enforce constitutional rights through legislation under Section 5 of the Fourteenth Amendment and other enforcement provisions. However, the Supreme Court has held that Congress may not create new rights or expand the scope of constitutional protections beyond what the Court has recognized.
What is the difference between state action and government action? The terms are used interchangeably. Both refer to conduct that is attributable to the government and therefore subject to constitutional limitations. The “state action” doctrine applies to all levels of government — federal, state, and local — and to conduct that is fairly attributable to any of them.
How do I challenge private discrimination if the Constitution does not apply? Private discrimination may violate federal or state statutes. Title II of the Civil Rights Act of 1964 prohibits discrimination in public accommodations. Title VII prohibits employment discrimination. The Fair Housing Act prohibits housing discrimination. Many states also have their own anti-discrimination laws that provide broader protections than federal law.
Conclusion
The state action doctrine is a fundamental feature of American constitutional law. It reflects the Constitution’s character as a charter of governmental limitations rather than a general code of private conduct. While the doctrine has been criticized for leaving private power unregulated by constitutional norms, it preserves important values of federalism, individual liberty, and democratic self-governance. Understanding the state action doctrine is essential for understanding the scope and limits of constitutional rights.