State Action

A requirement for claims that arise under the DUE PROCESS CLAUSE of the FOURTEENTH AMENDMENT and CIVIL RIGHTS legislation, for which a private citizen seeks relief in the form of damages or redress based on an improper intrusion by the government into his or her private life.

The U.S. Supreme Court has established that the protections offered by the Fourteenth and Fifteenth Amendments to the U.S. Constitution apply only to actions authorized or sanctioned by state law. The "state-action" requirement means that private acts of RACIAL DISCRIMINATION cannot be addressed under these amendments or the federal civil rights laws authorized by the amendments.

The Fourteenth Amendment prohibits a state from denying any person due process of law and the EQUAL PROTECTION of the law. The FIFTEENTH AMENDMENT prohibits a state from infringing on a person's right to vote. Both amendments were passed after the Civil War to guarantee these constitutional rights to newly freed slaves. During Reconstruction, Congress enacted many laws that it claimed were based on these amendments. Armed with this constitutional authority, Congress, in the CIVIL RIGHTS ACT of 1875, sought to prohibit racial discrimination by private parties in the provision of public accommodations, such as hotels, restaurants, theaters, and public transportation.

The Supreme Court struck down the 1875 act in the Civil Rights cases, 109 U.S. 3, 3 S. Ct. 18, 27 L. Ed. 835 (1883). It held that under the Fourteenth Amendment, "it is state action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the amendment." The Court relied on language of the amendment that provides that "no state" shall engage in certain specified conduct.

This restrictive reading of the state-action requirement permitted racial discrimination to flourish in the South. For example, the Supreme Court upheld the "white primary," a device used to circumvent the Fifteenth Amendment, in Grovey v. Townsend, 295 U.S. 45, 55 S. Ct. 622, 79 L. Ed. 1292 (1935). The Court reasoned that because political parties were private organizations, their primary elections did not constitute state action.

The Supreme Court began to move away from a strict state-action requirement in the 1940s. In Smith v. Allwright, 321 U.S. 649, 64 S. Ct. 757, 88 L. Ed. 987 (1944), the Court struck down the WHITE PRIMARY as violative of the Fifteenth Amendment, thus overruling Grovey. The Court now found that primary elections played an important part in the democratic process and must be considered as officially sanctioned by the state.

The Court extended this type of analysis in Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161 (1948), ruling that racially discriminatory restrictive covenants affecting real estate were unenforceable in state courts, because any such enforcement would amount to state action in contravention of the Fourteenth Amendment. Groups of homeowners used restrictive covenants to prevent the sale or rental of their homes to African Americans, Jews, and other minorities. A restriction was included in their real estate deeds forbidding such sale or rental. Until 1948 this form of private discrimination was thought to be legal because the state was not involved.

By the 1960s the Supreme Court was applying a more sophisticated analysis to determine if the state-action requirement had been met. In Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S. Ct. 856, 6 L. Ed. 2d 45 (1961), the Court found state action when a state agency leased property to a restaurant that refused to serve African Americans. It stated that state action in support of discrimination exists when there is a "close nexus" between the functions of the state and the private discrimination.

Nevertheless, the Court has not abandoned the state-action requirement. In Moose Lodge v. Irvis, 407 U.S. 163, 92 S. Ct. 1965, 32 L. Ed. 2d 627 (1972), a racially restrictive private club refused to serve the African American guest of a white member. The Court determined that the mere grant of a liquor license did not convert the private club's discriminatory policy into state action under the Fourteenth Amendment.