The Court has
a number of theories upon which state action sufficient to trigger the
protections of the Constitution might be found. The "public
theory," applied by the Court in the case of the park for whites only
in Evans v Newton, holds that when certain traditional
of government are turned over to private parties, the Constitution (in
the case of Evans, the Equal Protection Clause) will apply. The
enforcement theory" holds that judicial enforcement of private
may constitute state action. Such state action was found to exist
in the case of Shelley v Kraemer, where the state courts of
had been used to evict a black family from a home they had bought from
a white in violation of the a restrictive covenant entered into by
homeowners. Since almost all private discrimination is supported
at some level through the courts (through application of race-neutral
and contract law, for example), Shelley leaves us to guess just
what the exact limits of its governing principle might be. A
basis for finding state action is that the action of the government is
so entwined with the action of the private parties that the complained
about action can be fairly attributed to the government. This was
found to be the case in Burton v Wilmington, where the Eagle
Shop--which served only white customers--had leased its space in a
owned by the City of Wilmington. The Court found that the
of a "symbiotic relationship" between the city and the private
supported its conclusion. On the other hand, a liquor license
by the city of Harrisburg, Pennsylvania to a Moose Lodge that served
whites was found insufficient to bring the Equal Protection Clause into
play (Moose Lodge v Irvis).
The most recent of our cases, Edmonson v Leesville Concrete, represents a surprisingly lenient application of the state action requirement. In Edmonson, the Court found that a private defense attorney's use of peremptory challenges to exclude black jurors in a civil case constituted state action. The Court found that the use of peremptory challenges was authorized by federal law and that there was judicial assistance of the discrimination in the excusing of the challenged juror. The Court also described the selection of jurors as a traditional state function.
Senator Augustus Octavius Bacon, 1839-1914:
creator of park for the white people of Macon (Evans v Newton).
2. Should the willingness of the Court to find state action depend upon the constitutional right that is alleged to have been violated? Should the Court, for example, be more willing to find state action when the claim is one of racial discrimination than when it is one of a denial of procedural due process? Should a private company granted a utility monopoly be able to cut off electricity to deadbeat customers without affording them an opportunity to be heard, but unable to offer electrical service to only, say, white customers?
3. What do you think Shelley means? Does the Court reach the result it did only because the Missouri courts had stepped in to frustrate a contract between a willing buyer and a willing seller?
4. Does Shelley mean that racially restrictive covenants are completely ineffective?
5. What if Harrisburg had only one liquor license to give, and it gave it to the Moose Lodge? Would that constitute state action?
6. What are the policy arguments for applying constitutional limitations only to governmental racial discrimination, not private racial discrimination? If racial discrimination is bad, why not interpret the Constitution to ban all forms of it? Do you agree that the Imperial Wizard of the KKK should be able to apply racially discriminatory criteria in choosing a marriage partner? In what guests he lets into his house? In what persons he lets into his store?
7. Does the surprisingly lenient application of the state action requirement in Edmonson come from the Court's strong distaste for racial discrimination in any form?
8. Do you agree or disagree with the suggestion of Justice O'Connor in her Edmonson dissent that the use of peremptory challenges should be viewed as "an enclave of private action in a government-managed proceeding"?