State Actor Doctrine

Individual liberties guaranteed by the United States Constitution, other than the Thirteenth Amendment's ban on slavery, protect not against actions by private persons or entities, but only against actions by government officials.[171]  Regarding the Fourteenth Amendment, the Supreme Court ruled in Shelley v. Kraemer (1948):[172] "[T]he 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." The court added in Civil Rights Cases (1883):[30] "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."

Vindication of federal constitutional rights are limited to those situations where there is "state action" meaning action of government officials who are exercising their governmental power.[171] In Ex parte Virginia (1880),[173] the Supreme Court found that the prohibitions of the Fourteenth Amendment "have reference to actions of the political body denominated by a State, by whatever instruments or in whatever modes that action may be taken. 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."[174]

There are however instances where people are the victims of civil-rights violations that occur in circumstances involving both government officials and private actors.[171] In the 1960s, the United States Supreme Court adopted an expansive view of state action opening the door to wide-ranging civil-rights litigation against private actors when they act as state actors[171] (i.e., acts done or otherwise "sanctioned in some way" by the state). The Court found that the state action doctrine is equally applicable to denials of privileges or immunities, due process, and equal protection of the laws.[125]

The critical factor in determining the existence of state action is not governmental involvement with private persons or private corporations, but "the inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself".[174] "Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in privatec onduct be attributed its true significance."[175]

The Supreme Court asserted that plaintiffs must establish not only that a private party "acted under color of the challenged statute, but also that its actions are properly attributable to the State".[176] "And the actions are to be attributable to the State apparently only if the State compelled the actions and not if the State merely established the process through statute or regulation under which the private party acted."[125]

The rules developed by the Supreme Court for business regulation are that (1) the "mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth Amendment",[a] and (2) "a State normally can beheld responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must be deemed to be that of the State".[b]