Academic journal article Missouri Law Review

Less Is More: Decluttering the State Action Doctrine

Academic journal article Missouri Law Review

Less Is More: Decluttering the State Action Doctrine

Article excerpt

Wickersham v. City of Columbia (1)


Constitutional restrictions are not one-size-fits-all, restricting all conduct equally. Instead, the United States Constitution creates a schism between governmentally controlled domains and privately controlled sectors. The former are public actors, present throughout the vertical structure of government, and subject to Constitutional restrictions. (2) The latter are private actors, unburdened by Constitutional rules, with a degree of freedom and exclusionary power unavailable to governmental entities. (3) But in this "'golden age of privatization,'" where private entities increasingly perform public duties with governmental backing, the dividing line between public and private actors is far from clear. (4)

The distinction between public and private actors, and the resulting effects on Constitutional claims, is commonly known as the "state action doctrine." (5) This doctrine is often seen as a threshold test, ensuring that a governmental wrongdoing is the basis for a Constitutional claim, even before the merits of a claim are considered. (6) In use since 1875, the application of the state action doctrine has been inconsistent and choppy at best, with the Supreme Court handing down a variety of state action determinative "tests." (7) This situation has prompted commentators to call this doctrine, among other things, "dysfunctional" (8) and "a conceptual disaster area," with Justice Black referring to the United States Supreme Court's jurisprudence on the issue as "a torchless search for a way out of a damp echoing cave." (9)

The focus of this law summary is the tenuous distinction between state and private actors, examining both the various state action determinative tests proffered by the United States Supreme Court as well as the circuit courts' application of these tests. Although the Supreme Court has dealt extensively with the issue of state action, and circuit courts have faithfully applied the highest court's tests, problems remain. Many of the Supreme Court's tests are very narrow, proffered in response to carefully defined factual situations. Therefore, whether explicitly in the opinion or a result of later interpretation, most of these tests can only be used in very particular instances. Thus, courts must not only pick the correct test from the multitude of options, but then must contort the narrow test to the facts of the given case.

As circuit courts continue to pick-and-choose which state action test to apply, a divergence of the circuits is imminent. This mayhem, however, is unnecessary, and the time has yet again arrived for the Supreme Court to grapple with the state action doctrine. The Supreme Court should clarify the scope and application of each "test," tender a clear standard for determining state action, and remove the aura of mystery that surrounds the state action doctrine, particularly in the context of the recent Eighth Circuit decision, Wickersham v. City of Columbia. (10)


A. Constitutional "State Action" Requirement

The main purpose of the "Constitution is to provide a framework for national republican self-governance." (11) The Equal Protection Clause of the Fourteenth Amendment does not protect everyone equally--it only protects an individual against abridgement of his/her Constitutional rights at the hands of a state actor. (12) This requirement of state action, in effect, guarantees that individual freedoms are protected from federal law and federal judicial power. (13) According to the United States Supreme Court, "[o]ne great object of the Constitution is to permit citizens to structure their private relations as they choose subject only to the constraints of statutory or decisional law." (14) By focusing the judiciary's attention on state action, this doctrine limits the courts' power to regulate private interests and ensures that states and state actors respect individual liberties. …

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