STATE ACTION (Update 2)

More than thirty years ago, legal scholar Charles L. Black, Jr., described the state action doctrine as a "conceptual disaster area" and little has since changed. Indeed, surprisingly, the Supreme Court has paid little attention to state action issues in recent years. Major unresolved issues exist concerning when private action must comply with the Constitution. For example, when the government privatizes traditional government services, such as prisons or airports, does the action of the private operators constitute state action? In light of the tremendous growth in alternative dispute resolution, such as arbitration and mediation, should such private adjudication be regarded as state action, especially when required by law or court order? Thus far the Court has not confronted these issues. Rather, the Court's consideration of state action in recent years has been limited to two areas.

First, the Court has applied the state action doctrine to the exercise of peremptory jury challenges by nongovernment litigants. Peremptory challenges allow litigants to excuse prospective jurors without showing cause. In batson v. kentucky (1986), the Court held that equal protection prohibits prosecutors from using peremptory challenges in a discriminatory fashion in criminal cases.

In Edmonson v. Leesville Concrete Co. (1991), the Court held that Batson applies in private civil litigation and found state action in private parties' exercise of peremptory challenges in a civil case in a manner reflective of racial discrimination. The Court explained that it is state and federal laws that authorize peremptory challenges in state and federal courts. Additionally, the Court emphasized the involvement of the government in jury selection, from subpoenaing individuals for jury service to compelling completion of questionnaires to judicial supervision of the voir dire process. Moreover, juries function as a traditional and important government decisionmaking body. As a result, the Court found that discriminatory use of peremptory challenges denies equal protection, even if done by private litigants.

The Court took this reasoning a step further a year later in Georgia v. McCollum (1992), where the Court considered whether a criminal defendant's exercise of a peremptory challenge constitutes state action. If anyone is the antithesis of the government, it is a criminal defendant who is being prosecuted. Yet, for purposes of jury selection, the Court found that a criminal defendant is a state actor in exercising peremptory challenges. The Court followed exactly the same reasoning as in Edmonson: laws create peremptory challenges and jury selection is a government function accomplished through the power of the state and overseen by a judge.

The second major development concerning state action has been the Court's conclusion that corporations created and managed by government must comply with the Constitution. In lebron v. national railroad passenger corp. (1995), the Supreme Court held that the National Railroad Passenger Corporation (Amtrak) must comply with the Constitution. Although the statute creating Amtrak declares that it "will not be an agency or establishment of the United States government," it is a corporation created by federal law, with a board appointed by the President, and it receives substantial federal funding.

An artist sued Amtrak after it refused to comply with a contractual commitment to display his art on a large billboard. The Court ruled that Amtrak is the government for state action purposes. The Court explained that where "the Government creates a corporation by special law, for the furtherance of governmental objectives, and retains for itself permanent authority to appoint a majority of the directors of that corporation, the corporation is part of the Government for purposes of the First Amendment." Lebron is significant in making it clear that such government-created corporations must comply with the Constitution.

Erwin Chemerinsky
(2000)

(see also: Jury Discrimination; Privatization and the Constitution.)

Bibliography

Black, Charles L., Jr. 1967 State Action, Equal Protection, and California's Proposition 14. Harvard Law Review 81:69–109.

Eule, Julian N. and Varat, Jonathan D. 1998 Transporting First Amendment Norms to the Private Sector: With Every Wish There Comes a Curse. UCLA Law Review 45:1537–1634.

Reuben, Richard C. 1996 Public Justice: Towards a State Action Theory of Alternative Dispute Resolution. California Law Review 85:577–641.