## **Learning Outcomes**

This article explains individual rights and the state action requirement in constitutional law, including:

- Identifying when the Constitution constrains private actors and when conduct remains purely private and unregulated constitutionally.
- Distinguishing direct government action from private conduct, public function situations, and cases of significant state involvement.
- Applying the public function exception to scenarios involving elections, prisons, company towns, or delegated policing powers.
- Evaluating fact patterns for entanglement where the government authorizes, encourages, or enforces private decisions or discriminatory practices.
- Recognizing that extensive regulation, licensing, or funding normally does not convert private entities into state actors on exams.
- Comparing constitutional state action requirements with statutory civil rights remedies grounded in the Thirteenth Amendment or Commerce Clause.
- Spotting when private racial discrimination can be challenged constitutionally versus only under federal anti-discrimination statutes.
- Determining whether conduct qualifies as action “under color of state law” for purposes of § 1983 liability.
- Avoiding common MBE pitfalls by treating state action as a threshold issue before applying substantive constitutional doctrines.

## **MBE Syllabus**

For the MBE, you are required to understand when constitutional rights apply to government versus private conduct, with a focus on the following syllabus points:

- The state action requirement for constitutional claims.
- The distinction between purely private conduct and government action.
- The public function exception and significant state involvement/entanglement.
- The limits of constitutional protection against private discrimination.
- How to analyze scenarios involving private parties, government encouragement, or joint activity.
- The special role of the Thirteenth Amendment in reaching private conduct.

## **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 that is fairly attributable to government (federal, state, or local), so that constitutional protections are triggered.

Constitutional restrictions operate primarily on **government actors**:

> **Key Term: Government Actor**  
> A federal, state, or local government entity or official, or a private party whose conduct is treated as governmental for constitutional purposes.

Most questions on state action involve the Fourteenth Amendment (which, by its terms, limits “state” action) and incorporated provisions of the Bill of Rights. The Fifth Amendment Due Process Clause applies to the federal government, but the state action analysis is similar: there must be government involvement.

One key exception is the Thirteenth Amendment, which abolishes slavery and involuntary servitude. It applies directly to private conduct and does not require state action, but it is narrow in scope.

> **Key Term: Thirteenth Amendment Exception**  
> The Thirteenth Amendment itself applies to private individuals and entities, allowing Congress to prohibit slavery, involuntary servitude, and their “badges and incidents” even when there is no state action.

On the MBE, most “rights” questions presuppose state action. If you miss that threshold issue, you may apply the wrong level of scrutiny or even analyze the wrong constitutional provision.

## 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.

This threshold question is often tested implicitly. A plaintiff’s strongest argument may be that the private conduct is sufficiently connected to the state to count as state action.

### When Is State Action Present

State action is present in three main situations:

1. **Direct government action:** When a government body or official acts (e.g., a city council passes an ordinance, police make an arrest, a public school expels a student).
2. **Exclusive public function:** When a private party performs a function traditionally and exclusively reserved to the state.
3. **Significant state involvement (entanglement):** 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 (e.g., running elections, operating a town, or managing a prison).
>
> **Key Term: Significant State Involvement**  
> Also called “entanglement.” Private conduct is treated as state action if the government authorizes, commands, encourages, or is closely intertwined with the private conduct.
>
> **Key Term: Entanglement**  
> A situation in which government and private actors are so closely linked in a particular activity that the private conduct is effectively governmental for constitutional purposes.

#### Direct Government Action

Direct action by the government is the straightforward case:

- A police officer arrests a protester.
- A public university expels a student.
- A city agency denies a business license.
- A state court enforces a judgment.

All of these are state action. You then move on to the appropriate substantive analysis (speech, equal protection, due process, etc.).

### Purely Private Conduct

> **Key Term: Purely Private Conduct**  
> Actions by private individuals or entities that are not fairly attributable to the government and therefore are not limited by the Constitution.

Most private conduct, including discrimination by private businesses, clubs, or individuals, does not constitute state action. Examples of **no state action**:

- A private university (even if licensed and partially funded by the state) fires a professor for political speech.
- A private country club refuses to admit women.
- A privately owned shopping mall excludes political protesters from its property.
- A private insurance company charges different rates in different neighborhoods, even though the state regulates insurance.

The fact that a private entity is heavily regulated, licensed, or even subsidized by the state is **not** enough. The MBE frequently tests these traps:

- State licensing of professionals (e.g., doctors, lawyers) does not convert their actions into state action.
- State funding (even significant funding) of a private school or hospital does not, by itself, make the school or hospital a state actor.
- Renting a government facility for a private event does not usually make the private group a state actor.

### The Public Function Exception

If a private entity performs a function that has traditionally and exclusively been carried out by the government, its actions may be treated as state action. The Supreme Court applies “public function” narrowly. On the MBE, think of a short, high‑yield list:

Common examples where public function is found:

- **Running elections** (e.g., a private organization administering a primary election).
- **Operating a town or city** (e.g., a company town controlling streets, utilities, and local services).
- **Operating a jail or prison** under contract with the state.
- **Policing** functions delegated wholesale to a private security company that effectively replaces the police.

By contrast, activities that may look “public” but have not been treated as exclusive public functions include:

- Operating a utility or stadium, even if regulated or subsidized.
- Running a private school, even if performing an educational role.
- Providing medical care in a private hospital.

On the exam, if the function is widely shared with private actors in modern practice (schools, hospitals, utilities), the public function exception is unlikely to apply.

### 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 enforcement of private discrimination:** For instance, state courts enforcing racially restrictive covenants in property deeds.
- **Government use of private policies:** A city directs police to enforce a private club’s discriminatory membership rules.
- **Joint participation:** A private party acts together with police in an unlawful arrest or search.

However, mere regulation, licensing, or funding of private activity is not enough. The bar examiners often present fact patterns in which the private actor:

- Is heavily regulated by a state agency.
- Receives substantial government funding.
- Uses public facilities under a lease.

Unless the state **commands** or **encourages** the specific challenged conduct, or the private actor is performing an exclusive public function, there is no state action.

### Private Discrimination and the Constitution

The Constitution does not prohibit private discrimination unless state action is present. A private landlord, employer, or club can engage in discriminatory conduct without violating the Fourteenth Amendment, unless:

- The landlord, employer, or club is a state actor under a public function or entanglement theory; or
- A government entity is enforcing or encouraging the discrimination.

However, Congress may prohibit private discrimination through statutes using its Thirteenth Amendment enforcement power and Commerce Clause power. Claims under these laws (for example, the Civil Rights Act of 1964 or federal housing discrimination statutes) are **statutory**, not constitutional.

This is a key exam distinction:

- **Constitutional claim (e.g., equal protection, free speech)** → requires state action (except for the narrow Thirteenth Amendment exception).
- **Statutory civil rights claim** → may reach purely private conduct if the statute so provides.

### **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 is performing a task traditionally reserved to the government, so its actions are treated as state action and must comply with the Constitution.

### **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 transform the association into a state actor. The association’s rule is private conduct, so the First Amendment does not apply.

### **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 discriminatory policy is significant state involvement. The discrimination is now backed by government power, so it is subject to constitutional limits.

### **Worked Example 1.4**

A municipality owns a public swimming pool. During closed hours, private groups can rent the pool if they provide their own staff. A private group rents the pool to host a fundraising swim meet open to the public but limited to U.S. citizens. A resident noncitizen is excluded and sues under the Fourteenth Amendment. Is there state action?

> **Answer:**  
> No. The discrimination is by a private group that merely rented a public facility. The city did not direct, encourage, or enforce the citizenship requirement. Leasing public property alone is not significant state involvement, so the Fourteenth Amendment does not apply.

### **Worked Example 1.5**

A state bar association, created by state law, requires all lawyers to be members. The bar’s governing board uses membership dues to pay for a private club that excludes women. A female attorney sues under the Equal Protection Clause. Is there state action?

> **Answer:**  
> Yes. The integrated state bar is an arm of the state, created and supervised by state law. Its decisions about spending mandatory dues are governmental. Funding a discriminatory private club constitutes state action and is subject to equal protection scrutiny.

### **Worked Example 1.6**

A private school receives 80% of its budget from the state, must follow state curriculum requirements, and is subject to extensive state regulation. The school expels a student for speech criticizing the administration. The student claims a First Amendment violation. Is there state action?

> **Answer:**  
> Likely no. Heavy regulation and funding, without more, are not enough. Unless the state directed or encouraged the specific expulsion, the school’s act remains private conduct and the First Amendment does not apply.

### Color of State Law and § 1983

Many constitutional claims in practice are brought under 42 U.S.C. § 1983, which provides a cause of action against any person acting “under color of” state law who violates federal rights. For exam purposes:

> **Key Term: Color of State Law**  
> Conduct that is taken with the authority of state law or in misuse of that authority; functionally the same as state action for Fourteenth Amendment and § 1983 analysis.

If you can establish state action, you can generally establish that the defendant acted under color of state law for § 1983 purposes.

### Special Note: Thirteenth Amendment and Private Conduct

The Thirteenth Amendment is unique:

- It applies directly to private individuals.
- It authorizes Congress to prohibit private conduct that constitutes slavery, involuntary servitude, or the “badges and incidents” of slavery (such as certain forms of racial discrimination in housing and contracts).

This means:

- A purely private actor can violate federal law implementing the Thirteenth Amendment without any state action.
- But a plaintiff claiming a violation of the Fourteenth Amendment, First Amendment, or most other constitutional guarantees still must show state action.

On the MBE, if you see private racial discrimination and answer choices include both “equal protection” and “federal statute enacted under the Thirteenth Amendment,” the **constitutional** equal protection claim requires state action; the statutory claim may not.

### Exam Warning

> On the MBE, do **not** assume that government regulation, licensing, or funding alone creates state action. Look for:
>
> - A private party performing a function exclusively done by the government (elections, prisons, company towns), or
> - Direct government involvement in the challenged conduct (commanding, enforcing, or jointly participating).

Common traps:

- Private schools or hospitals receiving substantial state funds.
- Private employers with government contracts.
- Private malls open to the public.

In each case, unless the government is directing or enforcing the specific conduct, there is no state action.

### Practical MBE Approach

When a question involves a private party, use this checklist:

1. **Is there a government actor directly involved?**
   - If yes, state action is satisfied.
2. **Is the private party performing an exclusive public function?**
   - If yes, treat as state action.
3. **Is there significant state involvement or entanglement in the challenged conduct?**
   - Did the government command, encourage, or enforce the conduct?
   - If yes, likely state action.
4. **If none of the above apply:**
   - The conduct is purely private; constitutional claims (other than Thirteenth Amendment–based statutes) fail.

### Revision Tip

> If a question involves a private party, always ask: Is the government directly involved, is the private party performing an exclusive public function, or is the government entangled with the conduct? If not, the Constitution likely does not apply and the best answer will often point to a lack of state action or to statutory, rather than constitutional, remedies.

## **Key Point Checklist**

_This article has covered the following key knowledge points:_

- Constitutional rights generally apply only to government action, not private conduct.
- State action is required for most constitutional claims (Fourteenth Amendment and incorporated Bill of Rights provisions).
- Direct government action is always state action.
- Private actors can be state actors when performing exclusive public functions (e.g., elections, prisons, company towns).
- Significant state involvement or entanglement (authorization, encouragement, or enforcement) can convert private conduct into state action.
- Mere government regulation, licensing, or funding does **not** create state action.
- Private discrimination is not unconstitutional unless state action is present.
- The Thirteenth Amendment and statutes enacted under it can reach purely private conduct.
- “Under color of state law” for § 1983 purposes essentially overlaps with the state action requirement.
- On the MBE, state action is often the hidden threshold issue; identify it before applying any level of scrutiny.

## **Key Terms and Concepts**

- State Action
- Government Actor
- Public Function Exception
- Significant State Involvement
- Entanglement
- Purely Private Conduct
- Thirteenth Amendment Exception
- Color of State Law

Individual rights - State action