Amendment 14 — State Action Doctrine

prev | next

The Fourteenth Amendment , by its terms, limits discrimination only by governmental entities, not by private parties.[1](https://www.law.cornell.edu/constitution-conan/amendment-14/state-action-doctrine#fn1amd14 " The Amendment provides that “[n]o State” and “nor shall any State” engage in the proscribed conduct. There are, of course, numerous federal statutes that prohibit discrimination by private parties. See, e.g., Civil Rights Act of 1964, Title II, 78 Stat. 241, 243 (codified as amended at 42 U.S.C. §§ 2000a et seq.) These statutes, however, are generally based on Congress’s power to regulate commerce. See Katzenbach v. McClung, 379 U.S. 294 (1964); Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964). ") As the Court has noted, “the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful.” [2](https://www.law.cornell.edu/constitution-conan/amendment-14/state-action-doctrine#fn2amd14 " Shelley v. Kraemer, 334 U.S. 1, 13 (1948). “It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the amendment. It has a deeper and broader scope. It nullifies and makes void all State legislation, and State action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty or property without due process of law, or which denies to any of them the equal protection of the laws.” Civil Rights Cases, 109 U.S. 3, 11 (1883). ") Although state action requirements also apply to other provisions of the Constitution[3](https://www.law.cornell.edu/constitution-conan/amendment-14/state-action-doctrine#fn3amd14 " The doctrine applies to other rights protected of the Fourteenth Amendment, such as privileges and immunities and failure to provide due process. It also applies to Congress’s enforcement powers under Section 5 of the Amendment. For discussion of the latter, see to . Several other constitutional rights are similarly limited—the Fifteenth Amendment (racial discrimination in voting), the Nineteenth Amendment (sex discrimination in voting), and the Twenty-Sixth Amendment (voting rights for eighteen-year-olds)—although the Thirteenth Amendment, banning slavery and involuntary servitude, is not. ") and to federal governmental actions,[4](https://www.law.cornell.edu/constitution-conan/amendment-14/state-action-doctrine#fn4amd14 " The scope and reach of the “state action” doctrine is the same whether a state or the National Government is concerned. See CBS v. Democratic Nat’l Comm., 412 U.S. 94 (1973). ") the doctrine is most often associated with the application of the Equal Protection Clause to the states.[5](https://www.law.cornell.edu/constitution-conan/amendment-14/state-action-doctrine#fn5amd14 " Recently, however, because of broadening due process conceptions and the resulting litigation, issues of state action have been raised with respect to the Due Process Clause. See, e.g., Jackson v. Metro. Edison Co., 419 U.S. 345 (1974); Flagg Bros. v. Brooks, 436 U.S. 149 (1978); Rendell-Baker v. Kohn, 457 U.S. 830 (1982); Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982); Blum v. Yaretsky, 457 U.S. 991 (1982). ")

Certainly, an act passed by a state legislature that directs a discriminatory result is state action and would violate the first section of the Fourteenth Amendment .[6](https://www.law.cornell.edu/constitution-conan/amendment-14/state-action-doctrine#fn6amd14 " United States v. Raines, 362 U.S. 17, 25 (1960). A prime example is the statutory requirement of racially segregated schools condemned in Brown v. Bd. of Educ., 347 U.S. 483 (1954). See also Peterson v. City of Greenville, 373 U.S. 244 (1963), holding that trespass convictions of African Americans “sitting-in” at a lunch counter over the objection of the manager cannot stand because of a local ordinance commanding such separation, irrespective of the manager’s probable attitude if no such ordinance existed. ") In addition, acts by other branches of government “by whatever instruments or in whatever modes that action may be taken” can result in a finding of “state action.” [7](https://www.law.cornell.edu/constitution-conan/amendment-14/state-action-doctrine#fn7amd14 " Ex parte Virginia, 100 U.S. 339, 346 (1880). “A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State’s power, his act is that of the State.” Id. at 346–47 ") But the difficulty for the Court has been when the conduct complained of is not so clearly the action of a state. For instance, is it state action when a minor state official’s act was not authorized or perhaps was even forbidden by state law? What if a private party engages in discrimination while in a special relationship with governmental authority? “The vital requirement is State responsibility,” Justice Felix Frankfurter once wrote, “that somewhere, somehow, to some extent, there be an infusion of conduct by officials, panoplied with State power, into any scheme” to deny protected rights.[8](https://www.law.cornell.edu/constitution-conan/amendment-14/state-action-doctrine#fn8amd14 " Terry v. Adams, 345 U.S. 461, 473 (1953) (concurring) (concerning the Fifteenth Amendment). ")

The state action doctrine is not just a textual interpretation of the Fourteenth Amendment , but may also serve the purposes of federalism. Thus, following the Civil War, when the Court sought to reassert states’ rights, it imposed a rather rigid state action standard, limiting the circumstances under which discrimination suits could be pursued. During the civil rights movement of the 1950s and 1960s, however, when almost all state action contentions were raised in a racial context, the Court generally found the presence of state action. As it grew more sympathetic to federalism concerns in the late 1970s and 1980s, the Court began to reassert a strengthened state action doctrine, primarily but hardly exclusively in nonracial cases.[9](https://www.law.cornell.edu/constitution-conan/amendment-14/state-action-doctrine#fn9amd14 " The history of the state action doctrine makes clear that the Court has considerable discretion and that the weighing of the opposing values and interests will lead to substantially different applications of the tests. “Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.” Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961). ") “Careful adherence to the ‘state action’ requirement preserves an area of individual freedom by limiting the reach of federal law and federal judicial power. It also avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed. A major consequence is to require the courts to respect the limits of their own power as directed against state governments and private interests. Whether this is good or bad policy, it is a fundamental fact of our political order.” [10](https://www.law.cornell.edu/constitution-conan/amendment-14/state-action-doctrine#fn10amd14 " Lugar v. Edmondson Oil Co., 457 U.S. 922, 936–37 (1982). “Freedom of the individual to choose his associates or his neighbors, to use and dispose of his property as he sees fit, to be irrational, arbitrary, capricious, even unjust in his personal relations are things all entitled to a large measure of protection from governmental interference. This liberty would be overridden in the name of equality, if the structures of the amendment were applied to governmental and private action without distinction. Also inherent in the concept of state action are values of federalism, a recognition that there are areas of private rights upon which federal power should not lay a heavy hand and which should properly be left to the more precise instruments of local authority.” Peterson v. City of Greenville, 373 U.S. 244, 250 (1963) (Harlan, J., concurring). ")

Operation of the state action doctrine was critical in determining whether school systems were segregated unconstitutionally by race. The original Brown cases as well as many subsequent cases arose in the context of statutorily mandated separation of the races, and therefore the finding of state action occasioned no controversy.[11](https://www.law.cornell.edu/constitution-conan/amendment-14/state-action-doctrine#fn11amd14 " Brown v. Bd. of Educ., 347 U.S. 483 (1954). ") In the South, the aftermath of the case more often involved disputes over which remedies were needed to achieve a unitary system than it did the requirements of state action.[12](https://www.law.cornell.edu/constitution-conan/amendment-14/state-action-doctrine#fn12amd14 " See . ") But if racial segregation is not the result of state action in some aspect, then its existence is not subject to constitutional remedy.[13](https://www.law.cornell.edu/constitution-conan/amendment-14/state-action-doctrine#fn13amd14 " Compare Washington v. Seattle Sch. Dist., 458 U.S. 457 (1982), with Crawford v. Los Angeles Bd. of Educ., 458 U.S. 527 (1982). ") Distinguishing between the two situations has occasioned much controversy.

For instance, in a case arising from a Denver, Colorado school system in which no statutory dual system had ever been imposed, the Court restated the obvious principle that de jure racial segregation caused by “intentionally segregative school board actions” is to be treated as if it had been mandated by statute, and is to be distinguished from de facto segregation arising from actions not associated with the state.[14](https://www.law.cornell.edu/constitution-conan/amendment-14/state-action-doctrine#fn14amd14 " “[T]he differentiating factor between de jure segregation and so-called de facto segregation . . . is purpose or intent to segregate.” Keyes v. Denver Sch. Dist., 413 U.S. 189, 208 (1973) (emphasis by Court). See also Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 457 n.5 (1979). ") In addition, when it is proved that a meaningful portion of a school system is segregated as a result of official action, the responsible agency must then bear the burden of proving that other school segregation within the system is adventitious and not the result of official action.[15](https://www.law.cornell.edu/constitution-conan/amendment-14/state-action-doctrine#fn15amd14 " It is not the responsibility of complainants to show that each school in a system is de jure segregated to be entitled to a system-wide desegregation plan. 413 U.S. at 208–13<