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Constitutional Law

​The State Action Doctrine for Federal Constitutional Claims

August 18, 2020

The Bill of Rights in the U.S. Constitution, as a general rule, only regulates and restricts government action. It does not cover private individuals, organizations, or businesses. This means that a person can only bring a claim for a violation of their constitutional rights against a “state actor.” Much of the time, the State Action Doctrine for federal constitutional claims offers clear guidelines as to who may be a defendant in a case alleging constitutional rights violations. Many exceptions exist, however, thanks to years of decisions from the U.S. Supreme Court. A private individual or business could become a state actor in certain circumstances, or the state could be held jointly liable for actions by a private individual or business.

What Is State Action?

The State Action Doctrine seems simple on its face. The provisions of the U.S. Constitution and its amendments apply to the government and those acting on its behalf, but not to private individuals or entities.

Restrictions on the Federal Government

The language of various amendments to the Constitution make it clear that they are intended to apply only to the government. The First Amendment, for example, begins with “Congress shall make no law…” It proceeds to identify rights like freedom of religion, freedom of speech, and freedom of assembly as restrictions on actions by Congress. The Fourth and Fifth Amendments are less explicit in their use of language, but they address functions performed by the government, such as criminal investigations, prosecutions, trials, and eminent domain.

Restrictions on State and Local Governments

The Bill of Rights originally only applied to the federal government. The Fourteenth Amendment, ratified after the Civil War, extended most of the restrictions in the Bill of Rights to state and local governments. Section 1 of the Fourteenth Amendment extends the Due Process Clause to the states, and it restricts states’ ability to “abridge the privileges or immunities of citizens of the United States,” or to “deny to any person...the equal protection of the laws.”

The Supreme Court has ruled that the Fourteenth Amendment extended more than just the Due Process Clause to state governments. The Incorporation Doctrine states that other limits on government power found in the Bill of Rights also apply to state and local government actors. These include all the rights addressed in the First, Second, and Fourth Amendments and most of the rights addressed in the Fifth, Sixth, and Eighth Amendments.

When Does the State Action Doctrine Allow Lawsuits Based on Constitutional Claims?

The doctrine of sovereign immunity prevents lawsuits against the government, except when the government has authorized a lawsuit. Congress has enacted statutes that allow private persons to file suit for violations of constitutional rights, such as 42 U.S.C. § 1983. In order to prevail in a § 1983 claim, a plaintiff must show that the defendant acted “under color of” law to deprive them of their constitutional rights. The statute expressly includes the laws of U.S. states and territories in addition to federal laws. Many states also have laws similar to § 1983.

The Supreme Court has also recognized a right to sue federal government actors for constitutional violations, even without a specific statute authorizing a lawsuit, in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). That case involved alleged violations of the Fourth Amendment’s prohibition on unreasonable searches and seizures.

Examples of State Action

No “precise formula” exists for identifying when a private person is a state actor, and for the purpose of the Equal Protection Clause, the Supreme Court has stated that developing such a formula is an “impossible task” that it has “never attempted.” Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552, 556 (1947). Court decisions that address whether a private person or entity is acting as a state actor typically look at whether that person is performing a function usually reserved to the government, or whether a private action has the force of law on others.

Jury Selection

The Supreme Court ruled that attorneys in criminal trials may not make peremptory challenges based solely on race in Batson v. Kentucky, 476 U.S. 79 (1986). This decision addressed a history of racial imbalances in juries in cases in which the government is a party.

A litigant in a civil trial argued that Batson did not prevent him from making race-based peremptory challenges. Since the government was not a party to the lawsuit, he claimed, his actions during jury selection were not “state action.” The Supreme Court disagreed, finding that in some situations, “governmental authority may dominate an activity to such an extent that its participants must be deemed to act with the authority of the government.” Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614 (1991).

Housing Covenants

Restrictive covenants on real estate are considered private contractual matters under most circumstances. Enforcement of a restrictive covenant through the court system, however, is considered state action. The Supreme Court held in Shelley v. Kraemer, 334 U.S. 1 (1948), that restrictive covenants barring Black or Asian people from living in a neighborhood violated the Equal Protection Clause.

Public Funding of Private Organizations

The mere fact that a private organization receives most of its funding from the government does not make it a “state actor.” The organization may be deemed a state actor, and the state itself may be held liable, when the state “has exercised coercive power or has provided such significant encouragement...that the choice must in law be deemed to be that of the State.” Blum v. Yaretsky, 457 U.S. 991, 1004 (1982).

Government Contractors

Private persons who provide services to the state as contractors are not state actors in most situations. If a private actor enters into a contract with a government entity to operate a business on government-owned property, they could be considered a state actor if there is sufficient “interdependence” between the two. Burton v. Wilmington Parking Authority, 365 U.S. 715, 725 (1961)