The issue: The Constitution generally restricts only governmental, not private, conduct. How does the Court draw the line between private and governmental conduct for constitutional purposes in the context of racial discrimination?
Introduction
The Constitution is a limitation on governmental conduct, not–with the exception of the Thirteenth Amendment’s prohibition of slavery–a limitation on private conduct. In some cases, however, both the government and private actors are involved in the action that is alleged to violate constitutional rights, and it is necessary for a court to determine whether the government’s role in the conduct is sufficient to make applicable the Constitution.
The Court has developed a number of theories upon which state action sufficient to trigger the protections of the Constitution might be found. The “public function theory,” applied by the Court in the case of the park for whites only involved in Evans v Newton, holds that when certain traditional functions of government are turned over to private parties, the Constitution (in the case of Evans, the Equal Protection Clause) will apply.
The “judicial enforcement theory” holds that judicial enforcement of private discrimination may constitute state action. Such state action was found to exist in the case of Shelley v Kraemer, where the state courts of Missouri had been used to evict a black family from a home they had bought from a white in violation of the a restrictive covenant entered into by white homeowners. Since almost all private discrimination is supported at some level through the courts (through application of race-neutral trespass and contract law, for example), Shelley leaves us to guess just what the exact limits of its governing principle might be. A third basis for finding state action is that the action of the government is so entwined with the action of the private parties that the complained about action can be fairly attributed to the government. This was found to be the case in Burton v Wilmington, where the Eagle Coffee Shoppe–which served only white customers–had leased its space in a building owned by the City of Wilmington. The Court found that the presence of a “symbiotic relationship” between the city and the private discriminators supported its conclusion. On the other hand, a liquor license issued by the city of Harrisburg, Pennsylvania to a Moose Lodge that served only whites was found insufficient to bring the Equal Protection Clause into play (Moose Lodge v Irvis).
A third basis for finding state action is that the action of the government is so entwined with the action of the private parties that the complained about action can be fairly attributed to the government. This was found to be the case in Burton v Wilmington, where the Eagle Coffee Shoppe–which served only white customers–had leased its space in a building owned by the City of Wilmington. The Court found that the presence of a “symbiotic relationship” between the city and the private discriminators supported its conclusion. On the other hand, a liquor license issued by the city of Harrisburg, Pennsylvania to a Moose Lodge that served only whites was found insufficient to bring the Equal Protection Clause into play (Moose Lodge v Irvis).
The most recent of our cases, Edmonson v Leesville Concrete, represents a surprisingly lenient application of the state action requirement. In Edmonson, the Court found that a private defense attorney’s use of peremptory challenges to exclude black jurors in a civil case constituted state action. The Court found that the use of peremptory challenges was authorized by federal law and that there was judicial assistance of the discrimination in the excusing of the challenged juror. The Court also described the selection of jurors as a traditional state function.
THE SUPREME COURT DEBATES STATE ACTION IN THE SIT-IN CASES, 1963-64
In 1963, Robert Bell and eleven other demonstrators were arrested during a sit-in at a segregated Baltimore restaurant and tried and convicted of violating state trespass laws. The central question before the Court was whether, in convicting Bell and the others for trespass, there was state action under the theory used by the Court to find state action (and, ultimately, a violation of equal protection principles) in the case of Shelley v Kraemer. Was this just neutral protection of private property rights or a violation of the Constitution? On that key question, as notes of the justices later revealed, the Court was closely divided. (Link to notes of Justices in Bell v Maryland [‘The Sit-In Cases]).
Cases
Shelley v. Kraemer (1948)
Evans v. Newton (1966)
Evans v. Abney (1970)
Burton v. Wilmington (1971)
Moose Lodge v. Irvis (1972)
Edmonson v Leesville Concrete (1991)
Questions
1. What would be examples of “essential, traditional public functions” that would be considered state action even when performed by private actors? Tax collection? Garbage collection? Prison operation? Fire fighting?
2. Should the willingness of the Court to find state action depend upon the constitutional right that is alleged to have been violated? Should the Court, for example, be more willing to find state action when the claim is one of racial discrimination than when it is one of a denial of procedural due process? Should a private company granted a utility monopoly be able to cut off electricity to deadbeat customers without affording them an opportunity to be heard, but unable to offer electrical service to only, say, white customers?
3. What do you think Shelley means? Does the Court reach the result it did only because the Missouri courts had stepped in to frustrate a contract between a willing buyer and a willing seller?
4. Does Shelley mean that racially restrictive covenants are completely ineffective?
5. What if Harrisburg had only one liquor license to give, and it gave it to the Moose Lodge? Would that constitute state action?
6. What are the policy arguments for applying constitutional limitations only to governmental racial discrimination, not private racial discrimination? If racial discrimination is bad, why not interpret the Constitution to ban all forms of it? Do you agree that the Imperial Wizard of the KKK should be able to apply racially discriminatory criteria in choosing a marriage partner? In what guests he lets into his house? In what persons he lets into his store?
7. Does the surprisingly lenient application of the state action requirement in Edmonson come from the Court’s strong distaste for racial discrimination in any form?
8. Do you agree or disagree with the suggestion of Justice O’Connor in her Edmonson dissent that the use of peremptory challenges should be viewed as “an enclave of private action in a government-managed proceeding”?
