The Court has developed a number of theories upon which state action sufficient to trigger the protections of the Constitution might be found.  The "public function theory," applied by the Court in the case of the park for whites only involved in Evans v Newton, holds that when certain traditional functions of government are turned over to private parties, the Constitution (in the case of Evans, the Equal Protection Clause) will apply.  The "judicial enforcement theory" holds that judicial enforcement of private discrimination may constitute state action.  Such state action was found to exist in the case of Shelley v Kraemer, where the state courts of Missouri 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 white homeowners.  Since almost all private discrimination is supported at some level through the courts (through application of race-neutral trespass and contract law, for example), Shelley leaves us to guess just what the exact limits of its governing principle might be.  A third 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 Coffee Shop--which served only white customers--had leased its space in a building owned by the City of Wilmington.  The Court found that the presence of a "symbiotic relationship" between the city and the private discriminators supported its conclusion.  On the other hand, a liquor license issued by the city of Harrisburg, Pennsylvania to a Moose Lodge that served only whites was found insufficient to bring the Equal Protection Clause into play (Moose Lodge v Irvis).

The house, on Labadie Avenue in St. Louis, from which the Shelley's were evicted because of a restrictive covenant.
(ABA Journal photo)

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.