Individual rights - State action

Learning Outcomes

After reading this article, you will be able to identify when constitutional protections apply to private conduct, explain the state action doctrine, distinguish between exclusive public functions and significant state involvement, and apply these principles to MBE-style questions. You will also recognize common exam pitfalls regarding private discrimination and the limits of constitutional claims.

MBE Syllabus

For the MBE, you are required to understand when constitutional rights apply to private conduct and when government involvement is necessary. This article covers:

  • The state action requirement for constitutional claims.
  • The distinction between purely private conduct and government action.
  • The public function exception and significant state involvement.
  • The limits of constitutional protection against private discrimination.
  • How to analyze scenarios involving private parties, government encouragement, or joint activity.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Which of the following is most likely to constitute state action?

    • (A) A private club refusing membership to women.
    • (B) A private security company hired by a city to run the city jail.
    • (C) A private employer firing an employee for political speech.
    • (D) A private landlord refusing to rent to out-of-state residents.

  2. The Constitution generally applies to:

    • (A) All actions by private individuals.
    • (B) All actions by state governments only.
    • (C) Actions by government or private parties performing exclusive public functions.
    • (D) Only actions by Congress.

  3. Which scenario best illustrates significant state involvement?

    • (A) A private school receiving state funding but making all admissions decisions independently.
    • (B) A city leasing public land to a private restaurant that excludes certain groups at the city’s request.
    • (C) A private business advertising in a government-owned newspaper.
    • (D) A private hospital treating government employees.

Introduction

Many constitutional rights, including those in the Bill of Rights and the Fourteenth Amendment, protect individuals against government action, not private conduct. The state action doctrine determines when private conduct is treated as government action for constitutional purposes. Understanding when the Constitution applies is essential for MBE questions involving discrimination, freedom of speech, or due process.

Key Term: State Action Conduct by government or private parties that is treated as government action for constitutional purposes, triggering constitutional protections.

The State Action Requirement

Constitutional rights generally restrict government conduct, not private behavior. For a constitutional claim to succeed, the plaintiff must show that the defendant’s conduct qualifies as state action. Purely private conduct, no matter how discriminatory or unfair, is not subject to constitutional constraints unless an exception applies.

When Is State Action Present?

State action is present in three main situations:

  1. Direct government action: When a government body or official acts.
  2. Exclusive public function: When a private party performs a function traditionally and exclusively reserved to the state.
  3. Significant state involvement: When the government is heavily involved in, encourages, or is entangled with private conduct.

Key Term: Public Function Exception Private conduct is treated as state action if the private party performs a function that is traditionally and exclusively the prerogative of the government.

Key Term: Significant State Involvement Private conduct is treated as state action if the government authorizes, encourages, or is closely entangled with the private conduct.

Purely Private Conduct

Most private conduct, including discrimination by private businesses, clubs, or individuals, does not constitute state action. The Constitution does not prohibit private discrimination unless the government is sufficiently involved.

The Public Function Exception

If a private entity performs a function that has traditionally and exclusively been carried out by the government (such as running elections or operating a town), its actions may be treated as state action.

Significant State Involvement

If the government is significantly involved in private conduct—by encouraging, authorizing, or being entangled with it—state action may be found. Examples include:

  • Government leasing public property to a private business that discriminates at the government's request.
  • Government enforcing private agreements to discriminate (e.g., court enforcement of racially restrictive covenants).

However, mere regulation, licensing, or funding of private activity is not enough.

Private Discrimination and the Constitution

The Constitution does not prohibit private discrimination unless state action is present. However, Congress may prohibit private discrimination through statutes (such as the Civil Rights Act), but such claims are statutory, not constitutional.

Worked Example 1.1

A city contracts with a private company to operate its jail. The company denies inmates access to legal counsel. An inmate sues, claiming a violation of constitutional rights. Is the company’s conduct subject to constitutional scrutiny?

Answer: Yes. Operating a jail is an exclusive public function. The private company’s actions are treated as state action, so constitutional protections apply.

Worked Example 1.2

A private homeowner’s association bans political signs in yards. The association receives a small grant from the city for landscaping. A resident claims the ban violates the First Amendment. Is there state action?

Answer: No. Mere receipt of government funding does not make the association’s conduct state action. The ban is not subject to constitutional challenge.

Worked Example 1.3

A city enforces a private club’s racially restrictive membership policy by sending police to remove excluded individuals. Is this state action?

Answer: Yes. The city’s enforcement of the club’s policy constitutes significant state involvement, making the discrimination subject to constitutional limits.

Exam Warning

On the MBE, do not assume that government regulation, licensing, or funding alone creates state action. Look for exclusive public functions or direct government encouragement or enforcement.

Revision Tip

If a question involves a private party, always ask: Is the government directly involved, performing an exclusive public function, or entangled with the conduct? If not, the Constitution likely does not apply.

Key Point Checklist

This article has covered the following key knowledge points:

  • Constitutional rights generally apply only to government action, not private conduct.
  • The state action doctrine determines when private conduct is treated as government action.
  • Exceptions: exclusive public function and significant state involvement.
  • Mere government regulation, licensing, or funding does not create state action.
  • Private discrimination is not unconstitutional unless state action is present.
  • Statutory civil rights protections may apply to private conduct, but constitutional claims require state action.

Key Terms and Concepts

  • State Action
  • Public Function Exception
  • Significant State Involvement
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