State action Summary

The Fourteenth Amendment, adopted in 1868, sought to provide equal protection for newly freed African Americans. The amendment stipulates that “No state shall…deny to any person…the equal protection of the laws.” Shortly after its adoption, the Supreme Court had to define precisely who the state was for purposes of barring discriminatory action. Politically, the Court was asked whether the amendment could be used to end private discriminationPrivate discrimination.

In Ex parte Virginia[case]Virginia, Ex parte[Virginia, Ex parte] (1880), the Court ruled that the Fourteenth Amendment barred government officials and agencies, in this case a judge, from denying equal protection of the laws. However in the Civil Rights Cases[case]Civil Rights Cases[Civil Rights Cases] (1883), the Court ruled narrowly, stating that only discrimination involving a state action could be called unconstitutional. It also rejected the Civil Rights Act of 1875, which barred private discrimination in inns, public conveyances, and places of public amusement. This gave way to the doctrine of separate but equal facilities. Blacks and whites were separated in many places of public accommodation, schools, parks, theaters, restaurants, and hotels.

Not until after World War II did the Court begin to use the doctrine of state action to eliminate private discrimination. In Shelley v. Kraemer[case]Shelley v. Kraemer[Shelley v. Kraemer] (1948), the Court prohibited the use of restrictive covenantsRestrictive covenants. The deed provision in this case prohibited the sale of property to buyers of “the Negro or Mongolian race.” The Court stated that although the discrimination occurred at the hands of private individuals, the agreements of these individuals were supported by state enforcement and thus sanctioned by state action. The actions of state courts and judicial officers in their official capacities to enforce these covenants was regarded as state action under the Fourteenth Amendment.

In the aftermath of Shelley v. Kraemer, the Court continued to provide relief to litigants by expanding its interpretation of the state action doctrine. In Burton v. Wilmington Parking Authority[case]Burton v. Wilmington Parking Authority[Burton v. Wilmington Parking Authority] (1961), the Court found a private restaurant that refused to serve African Americans a state actor under the Fourteenth Amendment. The Eagle Coffee Shoppe was located in a public parking building owned and operated by the Wilmington Parking Authority, an agency of the state of Delaware. The state leased the land to the restaurant and provided parking for its patrons, thereby creating a symbiotic relationship between the state and the private business. In the Court’s opinion, the Eagle Coffee Shoppe was therefore a state actor and under the scope of the equal protection clause of the Fourteenth Amendment.

Congress was next to use the state action doctrine to combat discriminationDiscrimination, race. It comprehensively addressed a variety of discriminatory practices with the passage of the Civil Rights Act of 1964. The commerce clause was employed as the legal authority supporting the act, thereby circumventing the need to prove that a party was a state actor before invoking Fourteenth Amendment protections. Title II outlawed discrimination in places of public accommodation. In Heart of Atlanta Motel v. United States[case]Heart of Atlanta Motel v. United States[Heart of Atlanta Motel v. United States] (1964) and Katzenbach v. McClung[case]Katzenbach v. McClung[Katzenbach v. McClung] (1964), the Court upheld the reach of the Civil Rights Act on commerce clauseCommerce clause grounds.

Under Warren E. Burger, the Court limited the scope of the doctrine of state action. In Adickes v. S. H. Kress and Co.[case]Adickes v. S. H. Kress and Co.[Adickes v. S. H. Kress and Co.] (1970), the Court applied the doctrine to a restaurant that refused to serve a white person in the company of blacks. However, in 1971 the Court narrowed the scope of the state action doctrine in ruling that the City of Jackson, Mississippi, could close a public swimming pool rather than allow African Americans to swim there. The high-water mark of limiting the state action doctrine was in Moose Lodge v. Irvis[case]Moose Lodge v. Irvis[Moose Lodge v. Irvis] (1972), when the Court found no state action involved in a private club’s refusal to serve African Americans, despite the fact that the state issued the club its liquor license. The majority argued that receiving benefits or services from the state was not enough to classify a private discriminator as a state actor for purposes of Fourteenth Amendment application. The once broad scope of state action was limited to allow some private discrimination to lie beyond the reach of the Fourteenth Amendment.

In Jones v. Alfred H. Mayer Co.[case]Jones v. Alfred H. Mayer Co.[Jones v. Alfred H. Mayer Co.] (1968), the Court reasoned that the Civil Rights Act of 1866 and even the Thirteenth Amendment were more useful tools in regulating private discrimination than the Fourteenth Amendment. In Jones, the Court argued that these two provisions prohibited private and public discrimination in the sale of property. After this case, many suits involving private schools, employment, and racial harassment were resolved without involving the doctrine of state action.

• Berger, Raoul. The Fourteenth Amendment and the Bill of Rights. Norman: University of Oklahoma Press, 1989.
• Curtis, Michael Kent. No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights. Durham, N.C.: Duke University Press, 1986.
• Hensley, Thomas R., Christopher E. Smith, and Joyce A. Baugh. The Changing Supreme Court: Constitutional Rights and Liberties. St. Paul, Minn.: West Publishing, 1997.
• Killenbeck, Mark R., ed. The Tenth Amendment and State Sovereignty: Constitutional History and Contemporary Issues. Lanham, Md.: Rowman & Littlefield, 2002.
• Kluger, Richard. Simple Justice. New York: Vintage Books, 1976.
• Nagel, Robert F. The Implosion of American Federalism. New York: Oxford University Press, 2002.
• Noonan, John Thomas. Narrowing the Nation’s Power: The Supreme Court Sides with the States. Berkeley: University of California Press, 2002.
• Schwartz, Bernard. Super Chief. New York: New York University Press, 1983.

Burton v. Wilmington Parking Authority

Civil Rights Cases

Civil Rights movement

Desegregation

Equal protection clause

Fourteenth Amendment

Housing discrimination

Moose Lodge v. Irvis

Private discrimination

Shelley v. Kraemer