Most constitutional rights run against the government only. A private employer, a private landlord or a private platform is not bound by the Equal Protection Clause or the First Amendment, because those provisions restrain state action. The doctrine marks the boundary, and it matters enormously in practice: a plaintiff who cannot show state action loses without the merits ever being reached.
Rule
- The baseline. The Fourteenth Amendment and most of the Bill of Rights reach government conduct, not private conduct.
- Public function. A private party performing a function traditionally and exclusively reserved to the state is treated as a state actor.
- Entanglement. Significant government involvement in, encouragement of, or entwinement with private conduct can convert it into state action.
- Judicial enforcement. A court's enforcement of a private agreement can itself be state action where enforcement is what inflicts the constitutional injury.
- Not enough on their own. Government funding, licensing or heavy regulation of a private business generally does not by itself make it a state actor.
- Statutory alternative. Congress can reach private conduct through other powers, which is how public accommodation and employment discrimination statutes work.
Leading cases
- The Civil Rights Cases: the Fourteenth Amendment addresses state action, so Congress could not use it to reach private discrimination in inns and theatres.
- Marsh v. Alabama: a company owned town could not bar leafleting, because it performed the full public function of a municipality.
- Shelley v. Kraemer: racially restrictive covenants were private agreements, but judicial enforcement of them was state action and unconstitutional.
- Brentwood Academy v. Tennessee Secondary School Athletic Association: a nominally private association was a state actor because of the pervasive entwinement of public schools and officials in its structure.
Where students go wrong
The first mistake is skipping the question entirely. Before analysing any constitutional right, say who the defendant is and why the Constitution binds it.
The second is treating regulation as entanglement. Businesses are heavily regulated. What matters is whether the government encouraged or was entwined with the specific conduct being challenged.
The third is forgetting the statutory route. Much conduct that is beyond the Constitution's reach is still unlawful under federal or state civil rights statutes, and a good answer notes that.
FAQ
Are private universities bound by the First Amendment?
Generally not. Public universities are state actors. A private one is bound only where a state constitution or statute imposes a similar obligation, or under a rare state action theory.
What is the public function test?
Ask whether the private party is doing something traditionally and exclusively reserved to government, such as running a town or conducting an election. The exclusivity requirement makes the test hard to satisfy.
Does government funding make an organisation a state actor?
Not by itself, even where the funding is substantial. There must be a closer link between the state and the particular decision being challenged.
Related terms
Working through this in your own casebook takes longer than reading it here. Syllume starts from your syllabus and turns each assigned case into a brief you can study from.