AN INTRODUCTION TO CONSTITUTIONAL
LAW AND THE ISSUE OF STATE ACTION
I. Introduction
The doctrine of “state action” is integral to American Constitutional law. With one notable exception, the
United States Constitution protects individual rights only against incursions by governments, whether
federal, state, or local. Generally, the Constitution does not govern the “rights” of individuals arguably
infringed by other individuals (or corporations).
Note that while the term generally used is “state action,” “state” here means all levels of government. Thus,
“state action” can be the federal government or a municipal government, as well as a state.
Sometimes, the question of “state action” is relatively simple.
Consider whether a judge would be likely to grant or deny a motion to dismiss for failure to allege sufficient
state action, if the plaintiff alleged a violation of the First Amendment:
A. The California Legislature passed a statute that violated the plaintiff’s First Amendment right to freedom
of speech.
B. The City of Austin, in Texas, passed an ordinance that violated the plaintiff’s First Amendment right to
free exercise of religion.
C. The Department of Prisons of Nevada, a state administrative agency, promulgated a regulation that
violated plaintiff’s right to receive mail in violation of the First Amendment.
D. The President of the United States issued an Executive Order that violated the plaintiff’s First
Amendment right to free exercise of religion.
E. Federal Bureau of Investigation officers arrested plaintiff in violation of her First Amendment rights to
assembly.
F. A principal at a public school suspended plaintiff, a student, for wearing “inappropriate attire” in
violation of her First Amendment rights to “symbolic speech.”
G. A father at the dinner table told his son to be quiet in violation of the child’s First Amendment rights to
freedom of speech.
H. A rider on the subway shouted and blocked the way of subway performers in violation of their First
Amendment rights to “artistic expression.”
I. A salesclerk in the Abercrombie & Fitch store on Fifth Avenue in New York asks a customer wearing a
head covering to leave the store in violation of her First Amendment rights.
Determining whether or not an action qualifies as “state action” is not always so simple, as the cases in this
Chapter demonstrate.
II. Constitutional Provisions
Let’s begin by examining the text of some specific Constitutional provisions. Look for the “state action”
requirement, recalling that this includes the federal government. Is the language in some provisions more
explicit than in others? Is it absent in any?
A. Fourteenth Amendment
Section 1 of the Fourteenth Amendment provides:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person
of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.
B. First Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;
or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.
C. Fifth Amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in
actual service in time of War or public danger;
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nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property be taken for public use, without just compensation.
D. Thirteenth Amendment
Section 1 of the Thirteenth Amendment provides:
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have
been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
III. The “Civil Rights Cases”
Both the Thirteenth Amendment and Fourteenth Amendment became part of the Constitution after the Civil
War (1861-1865). The Thirteenth Amendment does not have a state action requirement: slavery and
involuntary servitude are prohibited.
Along with the Fifteenth Amendment (“The right of citizens of the United States to vote shall not be denied
or abridged by the United States or by any State on account of race, color, or previous condition of
servitude”), these Amendments are also known as the “Reconstruction Amendments.”
Each of the Reconstruction Amendments also includes a section that states that “Congress shall have the
power to enforce” the Amendment by “appropriate legislation.”
Congress passed the Civil Rights Act of 1875 forbidding racial discrimination in public accommodations
including trains, hotels, theaters, and inns. Individuals who discriminated on the basis of race could be
subject to civil and criminal penalties.
In five consolidated cases known as the Civil Rights Cases, 109 U.S. 3 (1883), the United States Supreme
Court held that the Civil Rights Act of 1875 was unconstitutional. It held that Congress did not have the
power under either the Thirteenth or Fourteenth Amendments to prohibit racial discrimination by private
persons. In short, the Court held that the Thirteenth Amendment’s prohibition of slavery did not include
racial discrimination and that the Fourteenth Amendment only reached “state aggression” not the “wrongful
acts of individuals.”
The Civil Rights Cases are difficult; we will return to the case at the end of this Chapter. But as you examine
the next cases, notice whether the Court considered the precedent of the Civil Rights Cases.
IV. Toward a Doctrine of State Action
Marsh v. Alabama
326 U.S. 501 (1946)
Black, J., delivered the opinion of the Court in which Douglas, Murphy and Rutledge, JJ., joined.
Frankfurter, J., filed a concurring opinion. Reed., J., filed a dissenting opinion in which Stone, C.J., and
Burton, J., joined. Jackson, J., took no part in the consideration or decision of the case.
Mr. Justice Black delivered the opinion of the Court.
In this case we are asked to decide whether a State, consistently with the First and Fourteenth Amendments,
can impose criminal punishment on a person who undertakes to distribute religious literature on the
premises of a company-owned town contrary to the wishes of the town’s management. The town, a suburb
of Mobile, Alabama, known as Chickasaw, is owned by the Gulf Shipbuilding Corporation. Except for that
it has all the characteristics of any other American town. The property consists of residential buildings,
streets, a system of sewers, a sewage disposal plant and a ‘business block’ on which business places are
situated. A deputy of the Mobile County Sheriff, paid by the company, serves as the town’s policeman.
Merchants and service establishments have rented the stores and business places on the business block and
the United States uses one of the places as a post office from which six carriers deliver mail to the people
of Chickasaw and the adjacent area. The town and the surrounding neighborhood, which can not be
distinguished from the Gulf property by anyone not familiar with the property lines, are thickly settled, and
according to all indications the residents use the business block as their regular shopping center. To do so,
they now, as they have for many years, make use of a company-owned paved street and sidewalk located
alongside the store fronts in order to enter and leave the stores and the post office. Intersecting company-
owned roads at each end of the business block lead into a four-
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lane public highway which runs parallel to the business block at a distance of thirty feet. There is nothing
to stop highway traffic from coming onto the business block and upon arrival a traveler may make free use
of the facilities available there. In short the town and its shopping district are accessible to and freely used
by the public in general and there is nothing to distinguish them from any other town and shopping center
except the fact that the title to the property belongs to a private corporation.
Appellant, a Jehovah’s Witness, came onto the sidewalk we have just described, stood near the post-office
and undertook to distribute religious literature. In the stores the corporation had posted a notice which read
as follows: ‘This Is Private Property, and Without Written Permission, No Street, or House Vendor, Agent
or Solicitation of Any Kind Will Be Permitted.’ Appellant was warned that she could not distribute the
literature without a permit and told that no permit would be issued to her. She protested that the company
rule could not be constitutionally applied so as to prohibit her from distributing religious writings. When
she was asked to leave the sidewalk and Chickasaw she declined. The deputy sheriff arrested her and she
was charged in the state court with violating Title 14, Section 426 of the 1940 Alabama Code which makes
it a crime to enter or remain on the premises of another after having been warned not to do so. Appellant
contended that to construe the state statute as applicable to her activities would abridge her right to freedom
of press and religion contrary to the First and Fourteenth Amendments to the Constitution. This contention
was rejected and she was convicted. The Alabama Court of Appeals affirmed the conviction, holding that
the statute as applied was constitutional because the title to the sidewalk was in the corporation and because
the public use of the sidewalk had not been such as to give rise to a presumption under Alabama law of its
irrevocable dedication to the public. The State Supreme Court denied certiorari, and the case is here on
appeal under Section 237(a) of the Judicial Code, 28 U.S.C. s 344(a).
Had the title to Chickasaw belonged not to a private but to a municipal corporation and had appellant been
arrested for violating a municipal ordinance rather than a ruling by those appointed by the corporation to
manage a company-town it would have been clear that appellant’s conviction must be reversed. * * * *
[H]ad the people of Chickasaw owned all the homes, and all the stores, and all the streets, and all the
sidewalks, all those owners together could not have set up a municipal government with sufficient power
to pass an ordinance completely barring the distribution of religious literature. Our question then narrows
down to this: Can those people who live in or come to Chickasaw be denied freedom of press and religion
simply because a single company has legal title to all the town? For it is the state’s contention that the mere
fact that all the property interests in the town are held by a single company is enough to give that company
power, enforceable by a state statute, to abridge these freedoms.
We do not agree that the corporation’s property interests settle the question. The State urges in effect that
the corporation’s right to control the inhabitants of Chickasaw is coextensive with the right of a homeowner
to regulate the conduct of his guests. We can not accept that contention. Ownership does not always mean
absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in
general, the more do his rights become circumscribed by the statutory and constitutional rights of those
who use it. Thus, the owners of privately held bridges, ferries, turnpikes and railroads may not operate them
as freely as a farmer does his farm. Since these facilities are built and operated primarily to benefit the
public and since their operation is essentially a public function, it is subject to state regulation. * * * *
We do not think it makes any significant constitutional difference as to the relationship between the rights
of the owner and those of the public that here the State, instead of permitting the corporation to operate a
highway, permitted it to use its property as a town, operate a ‘business block’ in the town and a street and
sidewalk on that business block. Whether a corporation or a municipality owns or possesses the town the
public in either case has an identical interest in the functioning of the community in such manner that the
channels of communication remain free. As we have heretofore stated, the town of Chickasaw does not
function differently from any other town. The ‘business block’ serves as the community shopping center
and is freely accessible and open to the people in the area and those passing through. The managers
appointed by the corporation cannot curtail the liberty of press and religion of these people consistently
with the purposes of the Constitutional guarantees, and a state statute, as the one here involved, which
enforces such action by criminally punishing those who attempt to distribute religious literature clearly
violates the First and Fourteenth Amendments to the Constitution.
Many people in the United States live in company-owned towns.* These people, just as residents of
municipalities, are free citizens of their State and country. Just as all other citizens they must make decisions
which affect the welfare of community and nation. To act as good citizens they must be informed. In order
to enable them to be properly informed their information must be uncensored. There is no more reason for
depriving these people of the liberties guaranteed by the First and Fourteenth Amendments than there is for
curtailing these freedoms with respect to any other citizen.
When we balance the Constitutional rights of owners of property against those of the people to enjoy
freedom of press and religion, as we must here, we remain mindful of the fact that the latter occupy a
preferred position. * * * * In our view the circumstance that the property rights to the premises where the
deprivation of liberty, here involved, took place, were held by others than the public,
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is not sufficient to justify the State’s permitting a corporation to govern a community of citizens so as to
restrict their fundamental liberties and the enforcement of such restraint by the application of a State statute.
Insofar as the State has attempted to impose criminal punishment on appellant for undertaking to distribute
religious literature in a company town, its action cannot stand.
Reversed and remanded.
* {Footnote 5 of Court’s opinion} In the bituminous coal industry alone, approximately one-half of
the miners in the United States lived in company-owned houses in the period from 1922-23. The percentage
varied from nine per cent in Illinois and Indiana and 64 percent in Kentucky, to almost 80 per cent in West
Virginia. U.S. Coal Commission, Report, 1925, Part III, pp. 1467, 1469 summarized in Morris, The Plight
of the Coal Miner, Philadelphia 1934, Ch. VI, p. 86. The most recent statistics we found available are in
Magnusson, Housing by Employers in the United States, Bureau of Labor Statistics Bulletin No. 263 (Misc.
Ser.) p. 11. See also United States Department of Labor, Wage and Hour Division, Data on Pay Roll
Deductions, Union Manufacturing Company, Union Point, Georgia, June 1941; Rhyne, Some Southern
Cotton Mill Workers and Their Villages, Chapel Hill, 1930 (Study completed under the direction of the
Institute for Research in Social Science at the University of North Carolina); Comment, Urban
Redevelopment, 54 Yale L.J. 116.
Mr. Justice Frankfurter, concurring.
* * * * A company-owned town gives rise to a network of property relations. As to these, the judicial
organ of a State has the final say. But a company-owned town is a town. In its community aspects it does
not differ from other towns. These community aspects are decisive in adjusting the relations now before us,
and more particularly in adjudicating the clash of freedoms which the Bill of Rights was designed to
resolve—the freedom of the community to regulate its life and the freedom of the individual to exercise his
religion and to disseminate his ideas. Title to property as defined by State law controls property relations;
it cannot control issues of civil liberties which arise precisely because a company town is a town as well as
a congeries of property relations. And similarly the technical distinctions on which a finding of “trespass”
so often depends are too tenuous to control decision regarding the scope of the vital liberties guaranteed by
the Constitution. * * * *
Mr. Justice Reed, dissenting.
* * * * This is the first case to extend by law the privilege of religious exercises beyond public places
or to private places without the assent of the owner.
As the rule now announced permits this intrusion, without possibility of protection of the property by law,
and apparently is equally applicable to the freedom of speech and the press, it seems appropriate to express
a dissent to this, to us, novel Constitutional doctrine. Of course, such principle may subsequently be
restricted by this Court to the precise facts of this case—that is to private property in a company town where
the owner for his own advantage has permitted a restricted public use by his licensees and invitees. Such
distinctions are of degree and require new arbitrary lines, judicially drawn, instead of those hitherto
established by legislation and precedent. While the power of this Court, as the interpreter of the Constitution
to determine what use of real property by the owner makes that property subject, at will, to the reasonable
practice of religious exercises by strangers, cannot be doubted, we find nothing in the principles of the First
Amendment, adopted now into the Fourteenth, which justifies their application to the facts of this case. * *
* *
Chief Justice Vinson delivered the Opinion of the Court.
These cases present for our consideration questions relating to the validity of court enforcement of private
agreements, generally described as restrictive covenants, which have as their purpose the exclusion of
persons of designated race or color from the ownership or occupancy of real property. Basic constitutional
issues of obvious importance have been raised.
The first of these cases comes to this Court on certiorari to the Supreme Court of Missouri. On February
16, 1911, thirty out of a total of thirty-nine owners of property fronting both sides of Labadie Avenue
between Taylor Avenue and Cora Avenue in the city of St. Louis, signed an agreement, which was
subsequently recorded, providing in part:
“. . . the said property is hereby restricted to the use and occupancy for the term of Fifty (50) years from
this date, so that it shall be a condition all the time and whether recited and referred to as [sic] not in
subsequent conveyances and shall attach to the land as a condition precedent to the sale of the same, that
hereafter no part of said property or any portion thereof shall be, for said term of Fifty-years, occupied by
any person not of the Caucasian race, it being intended hereby to restrict the use of said property for said
period of time against the occupancy as owners or tenants of any portion of said property for resident or
other purpose by people of the Negro or Mongolian Race.”
The entire district described in the agreement included fifty-seven parcels of land. The thirty owners who
signed the agreement held title to forty-seven parcels, including the particular parcel involved in this case.
At the time the agreement was signed, five of the parcels in the district were owned by Negroes. One of
those had been occupied by Negro families since 1882, nearly thirty years before the restrictive agreement
was executed. The trial court found that owners of seven out of nine homes on the south side of Labadie
Avenue, within the restricted district and “in the immediate vicinity” of the premises in question, had failed
to sign the restrictive agreement in 1911. At the time this action was brought, four of the premises were
occupied by Negroes, and had been so occupied for periods ranging from twenty-three to sixty-three years.
A fifth parcel had been occupied by Negroes until a year before this suit was instituted.
On August 11, 1945, pursuant to a contract of sale, petitioners Shelley, who are Negroes, for valuable
consideration received from one Fitzgerald a warranty deed to the parcel in question. The trial court found
that petitioners had no actual knowledge of the restrictive agreement at the time of the purchase.
On October 9, 1945, respondents, as owners of other property subject to the terms of the restrictive
covenant, brought suit in the Circuit Court of the city of St. Louis praying that petitioners Shelley be
restrained from taking possession of the property and that judgment be entered divesting title out of
petitioners Shelley and revesting title in the immediate grantor or in such other person as the court should
direct. The trial court denied the requested relief on the ground that the restrictive agreement, upon which
respondents based their action, had never become final and complete because it was the intention of the
parties to that agreement that it was not to become effective until signed by all property owners in the
district, and signatures of all the owners had never been obtained.
The Supreme Court of Missouri sitting en banc reversed and directed the trial court to grant the relief for
which respondents had prayed. That court held the agreement effective and concluded that enforcement of
its provisions violated no rights guaranteed to petitioners by the Federal Constitution. At the time the court
rendered its decision, petitioners were occupying the property in question.
The second of the cases under consideration comes to this Court from the Supreme Court of Michigan. * *
* *
I
Whether the equal protection clause of the Fourteenth Amendment inhibits judicial enforcement by state
courts of restrictive covenants based on race or color is a question which this Court has not heretofore been
called upon to consider. * * * *
{But it is} clear that restrictions on the right of occupancy of the sort sought to be created by the private
agreements in these cases could not be squared with the requirements of the Fourteenth Amendment if
imposed by state statute or local ordinance. We do not understand respondents to urge the contrary. * * * *
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{But} Here the particular patterns of discrimination and the areas in which the restrictions are to operate,
are determined, in the first instance, by the terms of agreements among private individuals. Participation of
the State consists in the enforcement of the restrictions so defined. The crucial issue with which we are here
confronted is whether this distinction removes these cases from the operation of the prohibitory provisions
of the Fourteenth Amendment.
Since the decision of this Court in the Civil Rights Cases (1883), the principle has become firmly embedded
in our constitutional law that the 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.
We conclude, therefore, that the restrictive agreements standing alone cannot be regarded as a violation of
any rights guaranteed to petitioners by the Fourteenth Amendment. So long as the purposes of those
agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been
no action by the state and the provisions of the Amendment have not been violated.
But here there was more. These are cases in which the purposes of the agreements were secured only by
judicial enforcement by state courts of the restrictive terms of the agreements. The respondents urge that
judicial enforcement of private agreements does not amount to state action; or, in any event, the
participation of the State is so attenuated in character as not to amount to state action within the meaning
of the Fourteenth Amendment. Finally, it is suggested, even if the States in these cases may be deemed to
have acted in the constitutional sense, their action did not deprive petitioners of rights guaranteed by the
Fourteenth Amendment. We move to a consideration of these matters.
II
* * * * [T]he examples of state judicial action which have been held by this Court to violate the
Amendment’s commands are not restricted to situations in which the judicial proceedings were found in
some manner to be procedurally unfair. It has been recognized that the action of state courts in enforcing a
substantive common-law rule formulated by those courts, may result in the denial of rights guaranteed by
the Fourteenth Amendment, even though the judicial proceedings in such cases may have been in complete
accord with the most rigorous conceptions of procedural due process. * * * *
The short of the matter is that from the time of the adoption of the Fourteenth Amendment until the present,
it has been the consistent ruling of this Court that the action of the States to which the Amendment has
reference, includes action of state courts and state judicial officials. * * * * [I]t has never been suggested
that state court action is immunized from the operation of those provisions simply because the act is that of
the judicial branch of the state government.
III
Against this background of judicial construction, extending over a period of some three-quarters of a
century, we are called upon to consider whether enforcement by state courts of the restrictive agreements
in these cases may be deemed to be the acts of those States; and, if so, whether that action has denied these
petitioners the equal protection of the laws which the Amendment was intended to insure.
We have no doubt that there has been state action in these cases in the full and complete sense of the phrase.
The undisputed facts disclose that petitioners were willing purchasers of properties upon which they desired
to establish homes. The owners of the properties were willing sellers; and contracts of sale were accordingly
consummated. It is clear that but for the active intervention of the state courts, supported by the full panoply
of state power, petitioners would have been free to occupy the properties in question without restraint.
These are not cases, as has been suggested, in which the States have merely abstained from action, leaving
private individuals free to impose such discriminations as they see fit. Rather, these are cases in which the
States have made available to such individuals the full coercive power of government to deny to petitioners,
on the grounds of race or color, the enjoyment of property rights in premises which petitioners are willing
and financially able to acquire and which the grantors are willing to sell. The difference between judicial
enforcement and nonenforcement of the restrictive covenants is the difference to petitioners between being
denied rights of property available to other members of the community and being accorded full enjoyment
of those rights on an equal footing.
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The enforcement of the restrictive agreements by the state courts in these cases was directed pursuant to
the common-law policy of the States as formulated by those courts in earlier decisions. In the Missouri
case, enforcement of the covenant was directed in the first instance by the highest court of the State after
the trial court had determined the agreement to be invalid for want of the requisite number of signatures. In
the Michigan case, the order of enforcement by the trial court was affirmed by the highest state court. The
judicial action in each case bears the clear and unmistakable imprimatur of the State. We have noted that
previous decisions of this Court have established the proposition that judicial action is not immunized from
the operation of the Fourteenth Amendment simply because it is taken pursuant to the state’s common-law
policy. Nor is the Amendment ineffective simply because the particular pattern of discrimination, which
the State has enforced, was defined initially by the terms of a private agreement.* * * *
Respondents urge, however, that since the state courts stand ready to enforce restrictive covenants
excluding white persons from the ownership or occupancy of property covered by such agreements,
enforcement of covenants excluding colored persons may not be deemed a denial of equal protection of the
laws to the colored persons who are thereby affected. This contention does not bear scrutiny. The parties
have directed our attention to no case in which a court, state or federal, has been called upon to enforce a
covenant excluding members of the white majority from ownership or occupancy of real property on
grounds of race or color. But there are more fundamental considerations. The rights created by the first
section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. The rights established
are personal rights. It is, therefore, no answer to these petitioners to say that the courts may also be induced
to deny white persons rights of ownership and occupancy on grounds of race or color. Equal protection of
the laws is not achieved through indiscriminate imposition of inequalities.
Nor do we find merit in the suggestion that property owners who are parties to these agreements are denied
equal protection of the laws if denied access to the courts to enforce the terms of restrictive covenants and
to assert property rights which the state courts have held to be created by such agreements. The Constitution
confers upon no individual the right to demand action by the State which results in the denial of equal
protection of the laws to other individuals. And it would appear beyond question that the power of the State
to create and enforce property interests must be exercised within the boundaries defined by the Fourteenth
Amendment. Cf. Marsh.* * * *
Reversed.
Mr. Justice Reed, Mr. Justice Jackson, and Mr. Justice Rutledge took no part in the consideration or decision
of these cases.
Check Your Understanding
Notes
1. Did you notice how the opinions in Marsh and Shelley did or did not cite the Civil Rights Cases?
2. How do notions of “private property” appear in the Court’s opinions in Marsh and Shelley?
3. Understanding political, social, and economic movements and trends – – – “history” – – – occurring
at the time of a Court’s opinion can be a useful adjunct to understanding (and even memorizing) doctrine.
Are there aspects of history that you can discern from these cases? What particular language from the
opinions support your opinions?
Note: State Action in the Civil Rights Era: Burton & Irvis
State action doctrine was an important issue in “civil rights” struggles, with the courts deciding many cases
determining whether the Fourteenth Amendment’s Equal Protection Clause was applicable to institutions
which practiced racial segregation. Two cases are especially important and illustrate the Court’s changing
views: Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961) and Moose Lodge v. Irvis, 407 U.S.
163 (1972). Both involved prominent Black men challenging their racially-motivated exclusion from
spaces.
Burton involved the Eagle Coffee Shoppe, Inc., which the Court described as “a restaurant located within
an off-street automobile parking building in Wilmington, Delaware.” The building was “owned and
operated by the Wilmington Parking Authority, an agency of the State of Delaware, and the restaurant is
the Authority’s lessee.” The Delaware Supreme Court held that the coffee shoppe, in refusing service to
William Burton (the original plaintiff), was acting in “a purely private capacity” under its lease and
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therefore there was no state action within the contemplation of the prohibitions contained in that
Amendment. The United States Supreme Court reversed.
The Court stated that “to fashion and apply a precise formula for recognition of state responsibility under
the Equal Protection Clause is an ‘impossible task’ which ‘This Court has never attempted.’” Instead, it is
“Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private
conduct be attributed its true significance.”
The Court then proceeded with its task of “sifting facts and weighing circumstances,” stating:
The land and building were publicly owned. As an entity, the building was dedicated to “public uses” in
performance of the Authority’s “essential governmental functions” [by Delaware statute]. The costs of land
acquisition, construction, and maintenance are defrayed entirely from donations by the City of Wilmington,
from loans and revenue bonds and from the proceeds of rentals and parking services out of which the loans
and bonds were payable. Assuming that the distinction would be significant, the commercially leased areas
were not surplus state property, but constituted a physically and financially integral and, indeed,
indispensable part of the State’s plan to operate its project as a self-sustaining unit. Upkeep and maintenance
of the building, including necessary repairs, were responsibilities of the Authority and were payable out of
public funds. It cannot be doubted that the peculiar relationship of the restaurant to the parking facility in
which it is located confers on each an incidental variety of mutual benefits. Guests of the restaurant are
afforded a convenient place to park their automobiles, even if they cannot enter the restaurant directly from
the parking area. Similarly, its convenience for diners may well provide additional demand for the
Authority’s parking facilities. Should any improvements effected in the leasehold by Eagle become part of
the realty, there is no possibility of increased taxes being passed on to it since the fee is held by a tax-
exempt government agency. Neither can it be ignored, especially in view of Eagle’s affirmative allegation
that for it to serve Negroes would injure its business, that profits earned by discrimination not only
contribute to, but also are indispensable elements in, the financial success of a governmental agency.
Addition of all these activities, obligations and responsibilities of the Authority, the benefits mutually
conferred, together with the obvious fact that the restaurant is operated as an integral part of a public
building devoted to a public parking service, indicates that degree of state participation and involvement in
discriminatory action which it was the design of the Fourteenth Amendment to condemn. It is irony
amounting to grave injustice that in one part of a single building, erected and maintained with public funds
by an agency of the State to serve a public purpose, all persons have equal rights, while in another portion,
also serving the public, a Negro is a second-class citizen, offensive because of his race, without rights and
unentitled to service, but at the same time fully enjoys equal access to nearby restaurants in wholly privately
owned buildings.
The Court found there was state action, thus subjecting the defendant to the requirements of the Fourteenth
Amendment’s Equal Protection Clause.
Dissenting, Justice Harlan, joined by another Justice, wrote that the “Court’s opinion, by a process of first
undiscriminatingly throwing together various factual bits and pieces and then undermining the resulting
structure by an equally vague disclaimer, seems to me to leave completely at sea just what it is in this record
that satisfies the requirement of ‘state action.’”
In an opinion rendered a little more than a decade later, the United States Supreme Court distinguished
Burton in Moose Lodge v. Irvis. In Irvis, the Court found that a local Moose Lodge in Harrisburg,
Pennsylvania was not a state actor, and thus its refusal to serve Irvis alcohol was not subject to the
Fourteenth Amendment’s Equal Protection Clause. The opinion for the Court by Justice Rehnquist
described Moose Lodge as:
a private club in the ordinary meaning of that term. It is a local chapter of a national fraternal organization
having well-defined requirements for membership. It conducts all of its activities in a building that is owned
by it. It is not publicly funded. Only members and guests are permitted in any lodge of the order; one may
become a guest only by invitation of a member or upon invitation of the house committee.
The Court provided a review of state action doctrine:
In 1883, this Court in the Civil Rights Cases, set forth the essential dichotomy between discriminatory
action by the State, which is prohibited by the Equal Protection Clause, and private conduct, “however
discriminatory or wrongful,” against which that clause “erects no shield,” Shelley v. Kraemer (1948). That
dichotomy has been subsequently reaffirmed in Shelley v. Kraemer and in Burton v. Wilmington Parking
Authority (1961).
While the principle is easily stated, the question of whether particular discriminatory conduct is private, on
the one hand, or amounts to “state action,” on the other hand, frequently admits of no easy answer. “Only
by sifting facts and weighing
1.1.8 96865
circumstances can the non-obvious involvement of the State in private conduct be attributed its true
significance.” Burton v.
Wilmington Parking Authority.
Our cases make clear that the impetus for the forbidden discrimination need not originate with the State if
it is state action that enforces privately originated discrimination. Shelley. The Court held in Burton that a
private restaurant owner who refused service because of a customer’s race violated the Fourteenth
Amendment, where the restaurant was located in a building owned by a state created parking authority and
leased from the authority. The Court, after a comprehensive review of the relationship between the lessee
and the parking authority concluded that the latter had ‘so far insinuated itself into a position of
interdependence with Eagle (the restaurant owner) that it must be recognized as a joint participant in the
challenged activity, which, on that account, cannot be considered to have been so ‘purely private’ as to fall
without the scope of the Fourteenth Amendment.
The Court has never held, of course, that discrimination by an otherwise private entity would be violative
of the Equal Protection Clause if the private entity receives any sort of benefit or service at all from the
State, or if it is subject to state regulation in any degree whatever. Since state-furnished services include
such necessities of life as electricity, water, and police and fire protection, such a holding would utterly
emasculate the distinction between private as distinguished from state conduct. * * * * Our holdings indicate
that where the impetus for the discrimination is private, the State must have “significantly involved itself
with invidious discriminations,” in order for the discriminatory action to fall within the ambit of the
constitutional prohibition.
Our prior decisions dealing with discriminatory refusal of service in public eating places are significantly
different factually from the case now before us. Peterson v. City of Greenville (1963) dealt with the trespass
prosecution of persons who ‘sat in’ at a restaurant to protest its refusal of service to Negroes. There the
Court held that although the ostensible initiative for the trespass prosecution came from the proprietor, the
existence of a local ordinance requiring segregation of races in such places was tantamount to the State
having “commanded a particular result.” With one exception, there is no suggestion in this record that the
Pennsylvania statutes and regulations governing the sale of liquor are intended either overtly or covertly to
encourage discrimination.
The exception in Irvis to which the Court referred was this: the Pennsylvania state Liquor Control Board
adopted a regulation that affirmatively required that “(e)very club licensee shall adhere to all of the
provisions” of the national organization’s “Constitution and By-Laws.” In other words, a local Moose
Lodge club had to adhere to the rules of the national Moose Lodge organization. It was a rule of the national
Moose Lodge that only white men could be members and only white people could be guests.
The majority stated this was not sufficient but stated that “Shelley makes it clear that the application of state
sanctions to enforce such a rule would violate the Fourteenth Amendment.” So the Court ruled that Irvis
was entitled to a decree enjoining the enforcement of the Liquor Board regulations “insofar as that
regulation requires compliance by Moose Lodge with provisions of its constitution and bylaws containing
racially discriminatory provisions,” but that Irvis was “entitled to no more.”
Dissenting, Justice Douglas, joined by Justice Marshall, argued that liquor licenses in Pennsylvania, “unlike
driver’s licenses, or marriage licenses, are not freely available to those who meet racially neutral
qualifications,” and that under the “complex quota system,” the quota for Harrisburg, where Moose Lodge
No. 107 was located, has been full for many years:
This state-enforced scarcity of licenses restricts the ability of Blacks to obtain liquor, for liquor is
commercially available only at private clubs for a significant portion of each week. Access by Blacks to
places that serve liquor is further limited by the fact that the state quota is filled. A group desiring to form
a nondiscriminatory club which would serve blacks must purchase a license held by an existing club, which
can exact a monopoly price for the transfer. The availability of such a license is speculative at best, however,
for, as Moose Lodge itself concedes, without a liquor license a fraternal organization would be hard pressed
to survive. Thus, the State of Pennsylvania is putting the weight of its liquor license, concededly a valued
and important adjunct to a private club, behind racial discrimination. * * * *
Blum v. Yaretsky
457 U.S. 991 (1982)
Rehnquist, J., delivered the Opinion of the Court, in which Burger, C. J., and Blackmun, Powell, Stevens,
and O’Connor, JJ., joined. White, J., filed an opinion concurring in the judgment. Brennan, J., filed a
dissenting opinion, in which Marshall, J., joined.
Justice Rehnquist delivered the opinion of the Court.
1.1.9 96865
Respondents represent a class of Medicaid patients challenging decisions by the nursing homes in which
they reside to discharge or transfer patients without notice or an opportunity for a hearing. The question is
whether the State may be held responsible for those decisions so as to subject them to the strictures of the
Fourteenth Amendment.
I
Congress established the Medicaid program in 1965 as Title XIX of the Social Security Act, 42 U.S.C. §
1396 et seq., (1976 ed. and Supp.IV), to provide federal financial assistance to States that choose to
reimburse certain medical costs incurred by the poor. As a participating State, New York provides Medicaid
assistance to eligible persons who receive care in private nursing homes, which are designated as either
“skilled nursing facilities” (SNF’s) or “health related facilities” (HRF’s). The latter provide less extensive,
and generally less expensive, medical care than the former. Nursing homes chosen by Medicaid patients
are directly reimbursed by the State for the reasonable cost of health care services, N.Y.Soc.Serv.Law §
367–a.1 (McKinney Supp.1981).
An individual must meet two conditions to obtain Medicaid assistance. He must satisfy eligibility standards
defined in terms of income or resources and he must seek medically necessary services. See 42 U.S.C. §
1396. To assure that the latter condition is satisfied, federal regulations require each nursing home to
establish a utilization review committee (URC) of physicians whose functions include periodically
assessing whether each patient is receiving the appropriate level of care, and thus whether the patient’s
continued stay in the facility is justified. If the URC determines that the patient should be discharged or
transferred to a different level of care, either more or less intensive, it must notify the state agency
responsible for administering Medicaid assistance.
At the time their complaint was filed, respondents Yaretsky and Cuevas were patients in the American
Nursing Home, an SNF located in New York City. Both were recipients of assistance under the Medicaid
program. In December 1975 the nursing home’s URC decided that respondents did not need the care they
were receiving and should be transferred to a lower level of care in an HRF. New York City officials, who
were then responsible for administering the Medicaid program in the city, were notified of this decision and
prepared to reduce or terminate payments to the nursing home for respondents’ care. Following
administrative hearings, state social service officials affirmed the decision to discontinue benefits unless
respondents accepted a transfer to an HRF providing a reduced level of care.
Respondents then commenced this suit, acting individually and on behalf of a class of Medicaid-eligible
residents of New York nursing homes. Named as defendants were the Commissioners of the New York
Department of Social Services and the Department of Health. Respondents alleged in part that the
defendants had not afforded them [the constitutionally required] notice either of URC decisions and the
reasons supporting them or of their [constitutional] right to an administrative hearing to challenge those
decisions. Respondents maintained that these actions violated their rights under state and federal law and
under the Due Process Clause of the Fourteenth Amendment. They sought injunctive relief and damages.
In January 1978 the District Court certified a class and issued a preliminary injunction, restraining the
defendants from reducing or terminating Medicaid benefits without timely written notice to the patients,
provided by state or local officials, of the reasons for the URC decision, the defendants’ proposed action,
and the patients’ right to an evidentiary hearing and continued benefits pending administrative resolution
of the claim. The court’s accompanying opinion relied primarily on existing federal and state regulations.
* * * * Respondents asserted that [any patient] transfers deprived patients of interests protected by
the Fourteenth Amendment and were the product of “state action.”
In October 1979 the District Court approved a consent judgment * * * * [but the consent judgment] left
several issues of law to be decided by the District Court. The most important, for our purposes, was
“whether there is state action and a constitutional right to a pre-transfer evidentiary hearing in a patient
transfer * * * initiated by the facility or its agents.” Ultimately, the District Court answered that question in
respondents’ favor, although without elaborating its reasons. The court permanently enjoined petitioners,
as well as all SNF’s and HRF’s in the State, from permitting or ordering the discharge of class members,
or their transfer to a different level of care, without providing advance written notice and an evidentiary
hearing on “the validity and appropriateness of the proposed action.”
The Court of Appeals for the Second Circuit affirmed that portion of the District Court’s judgment we have
described above. The court held that * * * all discharges and transfers initiated by the nursing homes or
attending physicians, “involve state action affecting constitutionally protected property and liberty
interests.” The court premised its identification of state action on the fact that state authorities “responded”
to the challenged transfers by adjusting the patients’ Medicaid benefits. Citing our opinion in
1.1.10 96865
Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974), the court viewed this response as
establishing a sufficiently close “nexus” between the State and either the nursing homes or the URC’s to
justify treating their actions as those of the State itself.
We granted certiorari to consider the Court of Appeals’ conclusions about the nature of state action. We
now reverse its judgment.
II
[The Court considered whether the respondents had “standing” and had demonstrated that they were
personally injured. The Court held that they did.]
We turn now to the “state action” question presented by petitioners.
III
The Fourteenth Amendment of the Constitution provides in part that “[n]o State shall . . . deprive any person
of life, liberty, or property without due process of law.” Since this Court’s decision in the Civil Rights
Cases, 109 U.S. 3 (1883), “the principle has become firmly embedded in our constitutional law that the
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.” Shelley v. Kraemer, 334 U.S. 1, 13 (1948). “That Amendment erects no shield
against merely private conduct, however discriminatory or wrongful.” Shelley. See Jackson v. Metropolitan
Edison Co., 419 U.S. 345 (1974); Adickes v. S. H. Kress & Co., 398 U.S. 144, (1970).
Faithful adherence to the “state action” requirement of the Fourteenth Amendment requires careful attention
to the gravamen of the plaintiff’s complaint. In this case, respondents objected to the involuntary discharge
or transfer of Medicaid patients by their nursing homes without certain procedural safeguards. They have
named as defendants state officials responsible for administering the Medicaid program in New York. These
officials are also responsible for regulating nursing homes in the State, including those in which respondents
were receiving care. But respondents are not challenging particular state regulations or procedures, and
their arguments concede that the decision to discharge or transfer a patient originates not with state officials,
but with nursing homes that are privately owned and operated. Their lawsuit, therefore, seeks to hold state
officials liable for the actions of private parties, and the injunctive relief they have obtained requires the
State to adopt regulations that will prohibit the private conduct of which they complain.
A
This case is obviously different from those cases in which the defendant is a private party and the question
is whether his conduct has sufficiently received the imprimatur of the State so as to make it “state” action
for purposes of the Fourteenth Amendment. See, e.g., Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978);
Jackson v. Metropolitan Edison Co. (1974); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, (1972). It also
differs from other “state action” cases in which the challenged conduct consists of enforcement of state
laws or regulations by state officials who are themselves parties in the lawsuit; in such cases the question
typically is whether the private motives which triggered the enforcement of those laws can fairly be
attributed to the State. See, e.g., Peterson v. City of Greenville, 373 U.S. 244 (1963). But both these types
of cases shed light upon the analysis necessary to resolve the present case.
First, although it is apparent that nursing homes in New York are extensively regulated, “[t]he 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.” Jackson v. Metropolitan Edison Co., 419 U.S., at 350. The
complaining party must also show that “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.” Id., at 351. The purpose of this requirement is to assure that constitutional standards are
invoked only when it can be said that the State is responsible for the specific conduct of which the plaintiff
complains. The importance of this assurance is evident when, as in this case, the complaining party seeks
to hold the State liable for the actions of private parties.
Second, although the factual setting of each case will be significant, our precedents indicate that a State
normally can be held 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 in law be deemed to
be that of the State. Flagg Bros., Inc. v. Brooks, 436 U.S. at 166; Jackson v. Metropolitan Edison Co., 419
U.S. at 357; Moose Lodge No. 107 v. Irvis, 407 U.S. at 173; Adickes v. S. H. Kress & Co., 398 U.S. at 170.
Mere approval of or acquiescence in the initiatives of a private party is not sufficient to justify holding the
State responsible
1.1.11 96865
for those initiatives under the terms of the Fourteenth Amendment. See Flagg Bros., 436 U.S. at 164–165;
Jackson v. Metropolitan Edison Co., 419 U.S. at 357.
Third, the required nexus may be present if the private entity has exercised powers that are “traditionally
the exclusive prerogative of the State.” Jackson v. Metropolitan Edison Co.,419 U.S. at 353; Flagg Bros.,
Inc. v. Brooks, 436 U.S. at 157–161.
B
Analyzed in the light of these principles, the Court of Appeals’ finding of state action cannot stand. The
court reasoned that state action was present in the discharge or transfer decisions implemented by the
nursing homes because the State responded to those decisions by adjusting the patient’s Medicaid benefits.
Respondents, however, do not challenge the adjustment of benefits, but the discharge or transfer of patients
to lower levels of care without adequate notice or hearings. That the State responds to such actions by
adjusting benefits does not render it responsible for those actions. The decisions about which respondents
complain are made by physicians and nursing home administrators, all of whom are concededly private
parties. There is no suggestion that those decisions were influenced in any degree by the State’s obligation
to adjust benefits in conformity with changes in the cost of medically necessary care.
Respondents do not rest on the Court of Appeals’ rationale, however. They argue that the State
“affirmatively commands” the summary discharge or transfer of Medicaid patients who are thought to be
inappropriately placed in their nursing facilities. Were this characterization accurate, we would have a
different question before us. However, our review of the statutes and regulations identified by respondents
does not support respondents’ characterization of them.
As our earlier summary of the Medicaid program explained, a patient must meet two essential conditions
in order to obtain financial assistance. He must satisfy eligibility criteria defined in terms of income and
resources and he must seek medically necessary services. To assure that nursing home services are
medically necessary, federal law requires that a physician so certify at the time the Medicaid patient is
admitted and periodically thereafter. New York requires that the physician complete a “long term care
placement form” devised by the Department of Health, called the DMS-1. A completed form provides, inter
alia, a numerical score corresponding to the physician’s assessment of the patient’s mental and physical
health. As petitioners note, however, the physicians, and not the forms, make the decision about whether
the patient’s care is medically necessary. A physician can authorize a patient’s admission to a nursing
facility despite a “low” score on the form. We cannot say that the State, by requiring completion of a form,
is responsible for the physician’s decision.
In any case, respondents’ complaint is about nursing home decisions to discharge or transfer, not to admit,
Medicaid patients. But we are not satisfied that the State is responsible for those decisions either. The
regulations cited by respondents require SNF’s and HRF’s “to make all efforts possible to transfer patients
to the appropriate level of care or home as indicated by the patient’s medical condition or needs.” The
nursing homes are required to complete patient care assessment forms designed by the State and “provide
the receiving facility or provider with a current copy of same at the time of discharge to an alternate level
of care facility or home.”
These regulations do not require the nursing homes to rely on the forms in making discharge or transfer
decisions, nor do they demonstrate that the State is responsible for the decision to discharge or transfer
particular patients. Those decisions ultimately turn on medical judgments made by private parties according
to professional standards that are not established by the State. This case, therefore, is not unlike Polk County
v. Dodson, 454 U.S. 312 (1981), in which the question was whether a public defender acts “under color of”
state law * * * * when representing an indigent defendant in a state criminal proceeding. Although the
public defender was employed by the State and appointed by the State to represent the respondent, we
concluded that “[t]his assignment entailed functions and obligations in no way dependent on state
authority.” The decisions made by the public defender in the course of representing his client were framed
in accordance with professional canons of ethics, rather than dictated by any rule of conduct imposed by
the State. The same is true of nursing home decisions to discharge or transfer particular patients because
the care they are receiving is medically inappropriate.
Respondents next point to regulations which, they say, impose a range of penalties on nursing homes that
fail to discharge or transfer patients whose continued stay is inappropriate. One regulation excludes from
participation in the Medicaid program health care providers who “[f]urnished items or services that are
substantially in excess of the beneficiary’s needs.” The State is also authorized to fine health care providers
who violate applicable regulations. As we have previously concluded, however, those regulations
themselves do not dictate the decision to discharge or transfer in a particular case. Consequently, penalties
imposed for violating the regulations add nothing to respondents’ claim of state action.
1.1.12 96865
As an alternative position, respondents argue that even if the State does not command the transfers at issue,
it reviews and either approves or rejects them on the merits. The regulations cited by respondents will not
bear this construction. Although the State requires the nursing homes to complete patient care assessment
forms and file them with state Medicaid officials, and although federal law requires that state officials
review these assessments, nothing in the regulations authorizes the officials to approve or disapprove
decisions either to retain or discharge particular patients, and petitioners specifically disclaim any such
responsibility. Instead, the State is obliged to approve or disapprove continued payment of Medicaid
benefits after a change in the patient’s need for services. Adjustments in benefit levels in response to a
decision to discharge or transfer a patient does not constitute approval or enforcement of that decision. As
we have already concluded, this degree of involvement is too slim a basis on which to predicate a finding
of state action in the decision itself.
Finally, respondents advance the rather vague generalization that such a relationship exists between the
State and the nursing homes it regulates that the State may be considered a joint participant in the homes’
discharge and transfer of Medicaid patients. For this proposition they rely upon Burton v. Wilmington
Parking Authority, 365 U.S. 715 (1961). Respondents argue that state subsidization of the operating and
capital costs of the facilities, payment of the medical expenses of more than 90% of the patients in the
facilities, and the licensing of the facilities by the State, taken together convert the action of the homes into
“state” action. But accepting all of these assertions as true, we are nonetheless unable to agree that the State
is responsible for the decisions challenged by respondents. As we have previously held, privately owned
enterprises providing services that the State would not necessarily provide, even though they are extensively
regulated, do not fall within the ambit of Burton. Jackson v. Metropolitan Edison Co., 419 U.S. at 357–358.
That programs undertaken by the State result in substantial funding of the activities of a private entity is no
more persuasive than the fact of regulation of such an entity in demonstrating that the State is responsible
for decisions made by the entity in the course of its business.
We are also unable to conclude that the nursing homes perform a function that has been “traditionally the
exclusive prerogative of the State.” Jackson v. Metropolitan Edison Co., 419 U.S. at 353. Respondents’
argument in this regard is premised on their assertion that both the Medicaid statute and the New York
Constitution make the State responsible for providing every Medicaid patient with nursing home services.
The state constitutional provisions cited by respondents, however, do no more than authorize the legislature
to provide funds for the care of the needy. They do not mandate the provision of any particular care, much
less long-term nursing care. Similarly, the Medicaid statute requires that the States provide funding for
skilled nursing services as a condition to the receipt of federal moneys. It does not require that the States
provide the services themselves. Even if respondents’ characterization of the State’s duties were correct,
however, it would not follow that decisions made in the day-to-day administration of a nursing home are
the kind of decisions traditionally and exclusively made by the sovereign for and on behalf of the public.
Indeed, respondents make no such claim, nor could they.
IV
We conclude that respondents have failed to establish “state action” in the nursing homes’ decisions to
discharge or transfer Medicaid patients to lower levels of care. Consequently, they have failed to prove that
petitioners have violated rights secured by the Fourteenth Amendment. The contrary judgment of the Court
of Appeals is accordingly
Reversed.
Justice Brennan, with whom Justice Marshall, joins, dissenting.
If the Fourteenth Amendment is to have its intended effect as a restraint on the abuse of state power, courts
must be sensitive to the manner in which state power is exercised. In an era of active government
intervention to remedy social ills, the true character of the State’s involvement in, and coercive influence
over, the activities of private parties, often through complex and opaque regulatory frameworks, may not
always be apparent. But if the task that the Fourteenth Amendment assigns to the courts is thus rendered
more burdensome, the courts’ obligation to perform that task faithfully, and consistently with the
constitutional purpose, is rendered more, not less, important.
In deciding whether “state action” is present * * * the ultimate determination is simply whether the
defendant has brought the force of the State to bear against the plaintiff in a manner the Fourteenth
Amendment was designed to inhibit. Where the defendant is a government employee, this inquiry is
relatively straightforward. But in deciding whether “state action” is present in actions performed directly
by persons other than government employees, what is required is a realistic and delicate appraisal of the
State’s
1.1.13 96865
involvement in the total context of the action taken. “Only by sifting facts and weighing circumstances can
the nonobvious involvement of the State in private conduct be attributed its true significance.” Burton v.
Wilmington Parking Authority, 365 U.S. 715, 722 (1961). See Lugar v. Edmondson Oil Co., 457 U.S. 922,
939–942 (1982). The Court today departs from the Burton precept, ignoring the nature of the regulatory
framework presented by this case in favor of the recitation of abstract tests and a pigeonhole approach to
the question of state action. But however correct the Court’s tests may be in the abstract, they are worth
nothing if they are not faithfully applied. Bolstered by its own preconception of the decisionmaking process
challenged by respondents, and of the relationship between the State, the nursing home operator, and the
nursing home resident, the Court subjects the regulatory scheme at issue here to only the most perfunctory
examination. The Court thus fails to perceive the decisive involvement of the State in the private conduct
challenged by the respondents.
I
A
The Court’s analysis in this case is simple, but it is also demonstrably flawed, for it proceeds upon a premise
that is factually unfounded. The Court first describes the decision to transfer a nursing home resident from
one level of care to another as involving nothing more than a physician’s independent assessment of the
appropriate medical treatment required by that resident. Building upon that factual premise, the Court has
no difficulty concluding that the State plays no decisive role in the transfer decision: By reducing the
resident’s benefits to meet the change in treatment prescribed, the State is simply responding to “medical
judgments made by private parties according to professional standards that are not established by the State.”
If this were an accurate characterization of the circumstances of this case, I too would conclude that there
was no “state action” in the nursing home’s decision to transfer. A doctor who prescribes drugs for a patient
on the basis of his independent medical judgment is not rendered a state actor merely because the State may
reimburse the patient in different amounts depending upon which drug is prescribed.
But the level-of-care decisions at issue in this case, even when characterized as the “independent” decision
of the nursing home have far less to do with the exercise of independent professional judgment than they
do with the State’s desire to save money. To be sure, standards for implementing the level-of-care scheme
established by the Medicaid program are framed with reference to the underlying purpose of that program—
to provide needed medical services. And not surprisingly, the State relies on doctors to implement this
aspect of its Medicaid program. But the idea of two mutually exclusive levels of care—skilled nursing care
and intermediate care—embodied in the federal regulatory scheme and implemented by the State, reflects
no established medical model of health care. On the contrary, the two levels of long-term institutionalized
care enshrined in the Medicaid scheme are legislative constructs, designed to serve governmental cost-
containment policies.
The fiscal underpinning of the level-of-care determinations at issue here are apparent from the legislative
history of the “intermediate care” concept. [The dissent extensively discussed the legislative history and
amendments to the federal statute as well as the New York statutes and regulations].
B
* * * * As a fair reading of the relevant regulations makes clear, the State (and Federal Government)
have created, and administer, the level system as a cost-saving tool of the Medicaid program. The impetus
for this active program of review imposed upon the nursing home operator is primarily this fiscal concern.
The State has set forth precisely the standards upon which the level-of-care determinations are to be made,
and has delegated administration of the program to the nursing home operators, rather than assume the
burden of administering the program itself. Thus, not only does the program implement the State’s fiscal
goals, but, to paraphrase the Court, “[t]hese requirements . . . make the State responsible for actual decisions
to discharge or transfer particular patients.” Where, as here, a private party acts on behalf of the State to
implement state policy, his action is state action.
II
The deficiency in the Court’s analysis is dramatized by its inattention to the special characteristics of the
nursing home. Quite apart from the State’s specific involvement in the transfer decisions at issue in this
case, the nature of the nursing home as an institution, sustained by state and federal funds, and pervasively
regulated by the State so as to ensure that it is properly implementing the
1.1.14 96865
governmental undertaking to provide assistance to the elderly and disabled that is embodied in the Medicaid
program, undercuts the Court’s sterile approach to the state action inquiry in this case. The private nursing
homes of the Nation exist, and profit, at the sufferance of state and federal Medicaid and Medicare agencies.
The degree of interdependence between the State and the nursing home is far more pronounced than it was
between the State and the private entity in Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961).
The State subsidizes practically all of the operating and capital costs of the facility, and pays the medical
expenses of more than 90% of its residents. And, in setting reimbursement rates, the State generally affords
the nursing homes a profit as well. Even more striking is the fact that the residents of those homes are, by
definition, utterly dependent on the State for their support and their placement. For many, the totality of
their social network is the nursing home community. Within that environment, the nursing home operator
is the immediate authority, the provider of food, clothing, shelter, and health care, and, in every significant
respect, the functional equivalent of a State. Cf. Marsh v. Alabama, 326 U.S. 501 (1946). Surely, in this
context we must be especially alert to those situations in which the State “has elected to place its power,
property and prestige behind” the actions of the nursing home owner. See Burton v. Wilmington Parking
Authority, 365 U.S. at 725.
Yet, whatever might be the status of the nursing home operator where the State has simply left the resident
in his charge, while paying for the resident’s support and care, it is clear that the State has not simply left
nursing home patients to the care of nursing home operators. No one would doubt that nursing homes are
“pervasively regulated” by State and Federal Governments; virtually every action by the operator is subject
to state oversight. But the question at this stage is not whether the procedures set forth in the state and
federal regulatory scheme are sufficient to protect the residents’ interests. We are confronted with the
question preliminary to any Fourteenth Amendment challenge: whether the State has brought its force to
bear against the plaintiffs through the office of these private parties. In answering that question we may
safely assume that when the State chooses to perform its governmental undertakings through private
institutions, and with the aid of private parties, not every action of those private parties is state action. But
when the State directs, supports, and encourages those private parties to take specific action, that is state
action.
We may hypothesize many decisions of nursing home operators that affect patients, but are not attributable
to the State. But with respect to decisions to transfer patients downward from one level of care to another,
if that decision is in any way connected with the statutory review structure set forth above, then there is no
doubt that the standard for decision, and impetus for the decision, is the responsibility of the State. Indeed,
with respect to the level-of-care determination, the State does everything but pay the nursing home operator
a fixed salary. Because the State is clearly responsible for the specific conduct of petitioners about which
respondents complain, and because this renders petitioners state actors for purposes of the Fourteenth
Amendment, I dissent.
Notes
1. Is there a “test” for state action in Blum v. Yarestky?
2. How does the Court’s majority opinion in Blum cite Burton? Moose Lodge v. Irvis?
3. The majority and the dissenting opinions appear to agree that Jackson v. Metropolitan Edison Co.,
419 U.S. 345 (1974), is not directly on point: the majority states that the present case is “obviously different”
from several cases, including Jackson and Irvis. But how does the majority rely on the “rule” from Jackson
in constructing its own “test”?
V. What is the “Test” for State Action?
Note: Peremptory Challenges and Batson
In order to understand the next case, Edmonson v. Leesville Concrete Company, Inc., it is necessary to be
familiar with two underlying legal matters: peremptory challenges and Batson v. Kentucky (1986).
Peremptory challenges are part of the process of selecting a jury. American courts generally allow attorneys
a role in selecting the jury in criminal and civil cases. Each attorney may ask the judge to exclude a potential
juror “for cause” – for example, because the juror is related to a party or who exhibits explicit bias. In
addition, each attorney has a number of “peremptory challenges,” under which a potential juror is excluded
at the attorney’s request regardless of whether good causes exist for the exclusion.
In Batson v. Kentucky, 476 U.S. 79 (1986), the Court held that it was a denial of equal protection for a
prosecutor to use peremptory challenges in a criminal case for the purpose of excluding racial minorities
from the jury. The Court in Batson held that a defendant must first show that he is a member of a “cognizable
racial group” and that the prosecutor has used the peremptory challenges to exclude potential jurors from
that racial group. After this initial prima facie showing, the burden then shifts to the prosecutor to
demonstrate that there was a race neutral reason for exercising the peremptory challenge against that
potential juror. The defendant can argue that the prosecutor’s proffered neutral reason is pretextual. The
judge then rules on whether the peremptory challenge can be exercised against the potential jurors
consistent with equal protection.
Edmonson v. Leesville Concrete Company, Inc.
1.1.15 96865
500 U.S. 614 (1991)
Kennedy, J., delivered the opinion of the Court, in which White, Marshall, Blackmun, Stevens, and Souter,
JJ., joined. O’Connor, J., filed a dissenting opinion, in which Rehnquist, C.J., and Scalia, J., joined. Scalia,
J., filed a dissenting opinion.
Justice Kennedy delivered the opinion of the Court.
* * * * Thaddeus Donald Edmonson, a construction worker, was injured in a job-site accident at Fort
Polk, Louisiana, a federal enclave. Edmonson sued Leesville Concrete Company for negligence in the
United States District Court for the Western District of Louisiana, claiming that a Leesville employee
permitted one of the company’s trucks to roll backward and pin him against some construction equipment.
* * * *
During voir dire, Leesville used two of its three peremptory challenges authorized by statute to remove
black persons from the prospective jury. Citing our decision in Batson v. Kentucky, Edmonson, who is
himself black, requested that the District Court require Leesville to articulate a race-neutral explanation for
striking the two jurors. The District Court denied the request on the ground that Batson does not apply in
civil proceedings. As impaneled, the jury included 11 white persons and 1 black person. The jury rendered
a verdict for Edmonson, assessing his total damages at $90,000. It also attributed 80” of the fault to
Edmonson’s contributory negligence, however, and awarded him the sum of $18,000.
* * * * With a few exceptions, such as the provisions of the Thirteenth Amendment, constitutional
guarantees of individual liberty and equal protection do not apply to the actions of private entities. This
fundamental limitation on the scope of constitutional guarantees “preserves an area of individual freedom
by limiting the reach of federal law” and “avoids imposing on the State, its agencies or officials,
responsibility for conduct for which they cannot fairly be blamed.” Lugar v. Edmondson Oil Co. (1982).
One great object of the Constitution is to permit citizens to structure their private relations as they choose
subject only to the constraints of statutory or decisional law.
To implement these principles, courts must consider from time to time where the governmental sphere ends
and the private sphere begins. Although the conduct of private parties lies beyond the Constitution’s scope
in most instances, governmental authority may dominate an activity to such an extent that its participants
must be deemed to act with the authority of the government and, as a result, be subject to constitutional
constraints. * * * *
{In Lugar,} we considered the state-action question in the context of a due process challenge to a State’s
procedure allowing private parties to obtain prejudgment attachments. We asked first whether the claimed
constitutional deprivation resulted from the exercise of a right or privilege having its source in state
authority, and second, whether the private party charged with the deprivation could be described in all
fairness as a state actor.
There can be no question that the first part of the Lugar inquiry is satisfied here. By their very nature,
peremptory challenges have no significance outside a court of law. Their sole purpose is to permit litigants
to assist the government in the selection of an impartial trier of fact. * * * * Peremptory challenges are
permitted only when the government, by statute or decisional law, deems it appropriate to allow parties to
exclude a given number of persons who otherwise would satisfy the requirements for service on the petit
jury.
* * * * In the case before us, the challenges were exercised under a federal statute that provides, inter alia:
In civil cases, each party shall be entitled to three peremptory challenges. Several defendants or several
plaintiffs may be considered as a single party for the purposes of making challenges, or the court may allow
additional peremptory challenges and permit them to be exercised separately or jointly.
28 U.S.C. § 1870.
Without this authorization, granted by an Act of Congress itself, Leesville would not have been able to
engage in the alleged discriminatory acts.
Given that the statutory authorization for the challenges exercised in this case is clear, the remainder of our
state-action analysis centers around the second part of the Lugar test, whether a private litigant in all fairness
must be deemed a government actor in the use of peremptory challenges. Although we have recognized
that this aspect of the analysis is often a factbound inquiry, our cases
1.1.16 96865
disclose certain principles of general application. Our precedents establish that, in determining whether a
particular action or course of conduct is governmental in character, it is relevant to examine the following:
the extent to which the actor relies on governmental assistance and benefits, see Tulsa Professional
Collection Services, Inc. v. Pope (1988); Burton v. Wilmington Parking Authority (1961); whether the actor
is performing a traditional governmental function, see Terry v. Adams (1953); Marsh v. Alabama (1946);
cf. San Francisco Arts & Athletics, Inc. v. United States Olympic Comm. (1987); and whether the injury
caused is aggravated in a unique way by the incidents of governmental authority, see Shelley v. Kraemer,
(1948). Based on our application of these three principles to the circumstances here, we hold that the
exercise of peremptory challenges by the defendant in the District Court was pursuant to a course of state
action.
Although private use of state-sanctioned private remedies or procedures does not rise, by itself, to the level
of state action our cases have found state action when private parties make extensive use of state procedures
with “the overt, significant assistance of state officials.” It cannot be disputed that, without the overt,
significant participation of the government, the peremptory challenge system, as well as the jury trial system
of which it is a part, simply could not exist. As discussed above, peremptory challenges have no utility
outside the jury system, a system which the government alone administers. In the federal system, Congress
has established the qualifications for jury service, and has outlined the procedures by which jurors are
selected. To this end, each district court in the federal system must adopt a plan for locating and summoning
to the court eligible prospective jurors. This plan, as with all other trial court procedures, must implement
statutory policies of random juror selection from a fair cross section of the community, and non-exclusion
on account of race, color, religion, sex, national origin, or economic status. * * * *
At the outset of the selection process, prospective jurors must complete jury qualification forms as
prescribed by the Administrative Office of the United States Courts. Failure to do so may result in fines and
imprisonment, as might a willful misrepresentation of a material fact in answering a question on the form.
In a typical case, counsel receive these forms and rely on them when exercising their peremptory strikes.
The clerk of the United States district court, a federal official, summons potential jurors from their
employment or other pursuits. They are required to travel to a United States courthouse, where they must
report to juror lounges, assembly rooms, and courtrooms at the direction of the court and its officers.
Whether or not they are selected for a jury panel, summoned jurors receive a per diem fixed by statute for
their service.
The trial judge exercises substantial control over voir dire in the federal system. The judge determines the
range of information that may be discovered about a prospective juror, and so affects the exercise of both
challenges for cause and peremptory challenges. In some cases, judges may even conduct the entire voir
dire by themselves.* * * * The judge oversees the exclusion of jurors for cause, in this way determining
which jurors remain eligible for the exercise of peremptory strikes. In cases involving multiple parties, the
trial judge decides how peremptory challenges shall be allocated among them. When a lawyer exercises a
peremptory challenge, the judge advises the juror he or she has been excused.
* * * * [A] private party could not exercise its peremptory challenges absent the overt, significant
assistance of the court. The government summons jurors, constrains their freedom of movement, and
subjects them to public scrutiny and examination. The party who exercises a challenge invokes the formal
authority of the court, which must discharge the prospective juror, thus effecting the “final and practical
denial” of the excluded individual’s opportunity to serve on the petit jury. Without the direct and
indispensable participation of the judge, who beyond all question is a state actor, the peremptory challenge
system would serve no purpose. By enforcing a discriminatory peremptory challenge, the court “has not
only made itself a party to the [biased act], but has elected to place its power, property and prestige behind
the [alleged] discrimination.” In so doing, the government has “create[d] the legal framework governing
the [challenged] conduct,” and in a significant way has involved itself with invidious discrimination.
In determining Leesville’s state-actor status, we next consider whether the action in question involves the
performance of a traditional function of the government. A traditional function of government is evident
here. The peremptory challenge is used in selecting an entity that is a quintessential governmental body,
having no attributes of a private actor. The jury exercises the power of the court and of the government that
confers the court’s jurisdiction. * * * * In the federal system, the Constitution itself commits the trial of
facts in a civil cause to the jury. Should either party to a cause invoke its Seventh Amendment right, the
jury becomes the principal factfinder, charged with weighing the evidence, judging the credibility of
witnesses, and reaching a verdict. The jury’s factual determinations as a general rule are final. In some civil
cases* * * * the jury can weigh the gravity of a wrong and determine the degree of the government’s interest
in punishing and deterring willful misconduct. A judgment based upon a civil verdict may be preclusive of
issues in a later case, even where some of the parties differ. And in all jurisdictions a true verdict will be
incorporated in a judgment enforceable by the court. These are traditional functions of government, not of
a select, private group beyond the reach of the Constitution.
1.1.17 96865
If a government confers on a private body the power to choose the government’s employees or officials,
the private body will be bound by the constitutional mandate of race neutrality. At least a plurality of the
Court recognized this principle in Terry v. Adams (1953). There we found state action in a scheme in which
a private organization known as the Jaybird Democratic Association conducted whites-only elections to
select candidates to run in the Democratic primary elections in Ford Bend County, Texas. The Jaybird
candidate was certain to win the Democratic primary and the Democratic candidate was certain to win the
general election.* * * *
The principle that the selection of state officials, other than through election by all qualified voters, may
constitute state action applies with even greater force in the context of jury selection through the use of
peremptory challenges. Though the motive of a peremptory challenge may be to protect a private interest,
the objective of jury selection proceedings is to determine representation on a governmental body. Were it
not for peremptory challenges, there would be no question that the entire process of determining who will
serve on the jury constitutes state action. The fact that the government delegates some portion of this power
to private litigants does not change the governmental character of the power exercised. The delegation of
authority that in Terry occurred without the aid of legislation occurs here through explicit statutory
authorization.
We find respondent’s reliance on Polk County v. Dodson (1981) unavailing. In that case, we held that a
public defender is not a state actor in his general representation of a criminal defendant, even though he
may be in his performance of other official duties. While recognizing the employment relation between the
public defender and the government, we noted that the relation is otherwise adversarial in nature. “[A]
defense lawyer is not, and by the nature of his function cannot be, the servant of an administrative superior.
Held to the same standards of competence and integrity as a private lawyer, … a public defender works
under canons of professional responsibility that mandate his exercise of independent judgment on behalf of
the client.”
In the ordinary context of civil litigation in which the government is not a party, an adversarial relation does
not exist between the government and a private litigant. In the jury-selection process, the government and
private litigants work for the same end. Just as a government employee was deemed a private actor because
of his purpose and functions in Dodson, so here a private entity becomes a government actor for the limited
purpose of using peremptories during jury selection. The selection of jurors represents a unique
governmental function delegated to private litigants by the government and attributable to the government
for purposes of invoking constitutional protections against discrimination by reason of race.
Our decision in West v. Atkins (1988) provides a further illustration. We held there that a private physician
who contracted with a state prison to attend to the inmates’ medical needs was a state actor. He was not on
a regular state payroll, but we held his “function[s] within the state system, not the precise terms of his
employment, [determined] whether his actions can fairly be attributed to the State.” We noted:
Under state law, the only medical care West could receive for his injury was that provided by the State. If
Doctor Atkins misused his power by demonstrating deliberate indifference to West’s serious medical needs,
the resultant deprivation was caused, in the sense relevant for state-action inquiry, by the State’s exercise
of its right to punish West by incarceration and to deny him a venue independent of the State to obtain
needed medical care.
In the case before us, the parties do not act pursuant to any contractual relation with the government. Here,
as in most civil cases, the initial decision whether to sue at all, the selection of counsel, and any number of
ensuing tactical choices in the course of discovery and trial may be without the requisite governmental
character to be deemed state action. That cannot be said of the exercise of peremptory challenges, however;
when private litigants participate in the selection of jurors, they serve an important function within the
government and act with its substantial assistance. If peremptory challenges based on race were permitted,
persons could be required by summons to be put at risk of open and public discrimination as a condition of
their participation in the justice system. The injury to excluded jurors would be the direct result of
governmental delegation and participation.
Finally, we note that the injury caused by the discrimination is made more severe because the government
permits it to occur within the courthouse itself. Few places are a more real expression of the constitutional
authority of the government than a courtroom, where the law itself unfolds. Within the courtroom, the
government invokes its laws to determine the rights of those who stand before it. In full view of the public,
litigants press their cases, witnesses give testimony, juries render verdicts, and judges act with the utmost
care to ensure that justice is done.
Race discrimination within the courtroom raises serious questions as to the fairness of the proceedings
conducted there. Racial bias mars the integrity of the judicial system and prevents the idea of democratic
government from becoming a reality. In the many times we have addressed the problem of racial bias in
our system of justice, we have not “questioned the premise that racial
1.1.18 96865
discrimination in the qualification or selection of jurors offends the dignity of persons and the integrity of
the courts.” To permit racial exclusion in this official forum compounds the racial insult inherent in judging
a citizen by the color of his or her skin.
* * * * It remains to consider whether a prima facie case of racial discrimination has been established
in the case before us, requiring Leesville to offer race-neutral explanations for its peremptory challenges.
In Batson, we held that determining whether a prima facie case has been established requires consideration
of all relevant circumstances, including whether there has been a pattern of strikes against members of a
particular race. The same approach applies in the civil context, and we leave it to the trial courts in the first
instance to develop evidentiary rules for implementing our decision.
Justice O’Connor, with whom The Chief Justice and Justice Scalia join, dissenting {omitted}.
Justice Scalia, dissenting {omitted}{arguing the decision will have concrete costs}.
Notes
1. Are you prepared to articulate the “test” from Edmonson?
2. Using the attorney for Leesville Concrete Company, Inc. as a possible “state actor,” describe other
situations in which he might be a state actor and situations in which he clearly would not be a state actor.
3. How would you use the doctrine developed in Batson in your “rule” or “holding” of Edmonson?
Manhattan Community Access Corporation v. Halleck
588 U.S. ___ (2019)
Kavanaugh, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Alito, and Gorsuch,
JJ., joined. Sotomayor, J., filed a dissenting opinion, in which Ginsburg, Breyer, and Kagan, JJ., joined.
Justice Kavanaugh delivered the opinion of the Court.
The Free Speech Clause of the First Amendment constrains governmental actors and protects private actors.
To draw the line between governmental and private, this Court applies what is known as the state-action
doctrine. Under that doctrine, as relevant here, a private entity may be considered a state actor when it
exercises a function “traditionally exclusively reserved to the State.” Jackson v. Metropolitan Edison Co.,
419 U.S. 345 (1974).
This state-action case concerns the public access channels on Time Warner’s [now Spectrum] cable system
in Manhattan. Public access channels are available for private citizens to use. The public access channels
on Time Warner’s cable system in Manhattan are operated by a private nonprofit corporation known as
MNN. The question here is whether MNN—even though it is a private entity—nonetheless is a state actor
when it operates the public access channels. In other words, is operation of public access channels on a
cable system a traditional, exclusive public function? If so, then the First Amendment would restrict MNN’s
exercise of editorial discretion over the speech and speakers on the public access channels.
Under the state-action doctrine as it has been articulated and applied by our precedents, we conclude that
operation of public access channels on a cable system is not a traditional, exclusive public function.
Moreover, a private entity such as MNN who opens its property for speech by others is not transformed by
that fact alone into a state actor. In operating the public access channels, MNN is a private actor, not a state
actor, and MNN therefore is not subject to First Amendment constraints on its editorial discretion. We
reverse in relevant part the judgment of the Second Circuit, and we remand the case for further proceedings
consistent with this opinion.
I
A
1.1.19 96865
Since the 1970s, public access channels have been a regular feature on cable television systems throughout
the United States. * * *
* Congress passed and President Reagan signed the Cable Communications Policy Act of 1984. The
Act authorized state and local governments to require cable operators to set aside channels on their cable
systems for public access.
The New York State Public Service Commission regulates cable franchising in New York State and requires
cable operators in the State to set aside channels on their cable systems for public access. 16 N.Y. Codes,
Rules & Regs. §§ 895.1(f), 895.4(b) (2018). State law requires that use of the public access channels be
free of charge and first-come, first-served. Under state law, the cable operator operates the public access
channels unless the local government in the area chooses to itself operate the channels or designates a
private entity to operate the channels.
Time Warner [now known as Spectrum] operates a cable system in Manhattan. Under state law, Time
Warner must set aside some channels on its cable system for public access. New York City (the City) has
designated a private nonprofit corporation named Manhattan Neighborhood Network, commonly referred
to as MNN, to operate Time Warner’s public access channels in Manhattan. This case involves a complaint
against MNN regarding its management of the public access channels.
B
Because this case comes to us on a motion to dismiss, we accept the allegations in the complaint as true.
DeeDee Halleck and Jesus Papoleto Melendez produced public access programming in Manhattan. They
made a film about MNN’s alleged neglect of the East Harlem community. Halleck submitted the film to
MNN for airing on MNN’s public access channels, and MNN later televised the film. Afterwards, MNN
fielded multiple complaints about the film’s content. In response, MNN temporarily suspended Halleck
from using the public access channels.
Halleck and Melendez soon became embroiled in another dispute with MNN staff. In the wake of that
dispute, MNN ultimately suspended Halleck and Melendez from all MNN services and facilities.
Halleck and Melendez then sued MNN, among other parties, in Federal District Court. The two producers
claimed that MNN violated their First Amendment free-speech rights when MNN restricted their access to
the public access channels because of the content of their film.
MNN moved to dismiss the producers’ First Amendment claim on the ground that MNN is not a state actor
and therefore is not subject to First Amendment restrictions on its editorial discretion. The District Court
agreed with MNN and dismissed the producers’ First Amendment claim.
The Second Circuit reversed in relevant part. In the majority opinion authored by Judge Newman and joined
by Judge Lohier, the court stated that the public access channels in Manhattan are a public forum for
purposes of the First Amendment. Reasoning that “public forums are usually operated by governments,”
the court concluded that MNN is a state actor subject to First Amendment constraints. Judge Lohier added
a concurring opinion, explaining that MNN also qualifies as a state actor for the independent reason that
“New York City delegated to MNN the traditionally public function of administering and regulating speech
in the public forum of Manhattan’s public access channels.” Judge Jacobs dissented in relevant part, opining
that MNN is not a state actor. He reasoned that a private entity’s operation of an open forum for speakers
does not render the host entity a state actor. Judge Jacobs further stated that the operation of public access
channels is not a traditional, exclusive public function.
We granted certiorari to resolve disagreement among the Courts of Appeals on the question whether private
operators of public access cable channels are state actors subject to the First Amendment. Compare 882 F.
3d 300 (case below), with Wilcher v. Akron, 498 F. 3d 516 (6th Cir. 2007); and Alliance for Community
Media v. FCC, 56 F. 3d 105 (D.C. Cir. 1995).
II
Ratified in 1791, the First Amendment provides in relevant part that “Congress shall make no law . . .
abridging the freedom of speech.” Ratified in 1868, the Fourteenth Amendment makes the First
Amendment’s Free Speech Clause applicable against the States. * * * * The text and original meaning of
those Amendments, as well as this Court’s longstanding precedents, establish that the Free Speech Clause
prohibits only governmental abridgment of speech. The Free Speech Clause does not prohibit private
abridgment of speech.
1.1.20 96865
In accord with the text and structure of the Constitution, this Court’s state-action doctrine distinguishes the
government from individuals and private entities. See Brentwood Academy v. Tennessee Secondary School
Athletic Assn., 531 U.S. 288, 295–296 (2001). By enforcing that constitutional boundary between the
governmental and the private, the state-action doctrine protects a robust sphere of individual liberty.
Here, the producers claim that MNN, a private entity, restricted their access to MNN’s public access
channels because of the content of the producers’ film. The producers have advanced a First Amendment
claim against MNN. The threshold problem with that First Amendment claim is a fundamental one: MNN
is a private entity.
Relying on this Court’s state-action precedents, the producers assert that MNN is nonetheless a state actor
subject to First Amendment constraints on its editorial discretion. Under this Court’s cases, a private entity
can qualify as a state actor in a few limited circumstances—including, for example, (i) when the private
entity performs a traditional, exclusive public function, see, e.g., Jackson, 419 U.S. at 352–354; (ii) when
the government compels the private entity to take a particular action, see, e.g., Blum v. Yaretsky, 457 U.S.
991, 1004–1005 (1982); or (iii) when the government acts jointly with the private entity, see, e.g., Lugar v.
Edmondson Oil Co., 457 U.S. 922, 941–942 (1982).
The producers’ primary argument here falls into the first category: The producers contend that MNN
exercises a traditional, exclusive public function when it operates the public access channels on Time
Warner’s cable system in Manhattan. We disagree.
A
Under the Court’s cases, a private entity may qualify as a state actor when it exercises “powers traditionally
exclusively reserved to the State.” Jackson, 419 U.S. at 352. It is not enough that the federal, state, or local
government exercised the function in the past, or still does. And it is not enough that the function serves
the public good or the public interest in some way. Rather, to qualify as a traditional, exclusive public
function within the meaning of our state-action precedents, the government must have traditionally and
exclusively performed the function. See Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982); Jackson, 419
U.S. at 352–353; Evans v. Newton, 382 U.S. 296, 300 (1966).
The Court has stressed that “very few” functions fall into that category. Flagg Bros., Inc. v. Brooks, 436
U.S. 149, 158 (1978). Under the Court’s cases, those functions include, for example, running elections and
operating a company town. See Terry v. Adams, 345 U.S. 461, 468–470 (1953) (elections); Marsh v.
Alabama, 326 U.S. 501, 505–509 (1946) (company town); Smith v. Allwright, 321 U.S. 649, 662–666
(1944) (elections); Nixon v. Condon, 286 U.S. 73, 84–89 (1932) (elections).* The Court has ruled that a
variety of functions do not fall into that category, including, for example: running sports associations and
leagues, administering insurance payments, operating nursing homes, providing special education,
representing indigent criminal defendants, resolving private disputes, and supplying electricity. [citations
omitted].
The relevant function in this case is operation of public access channels on a cable system. That function
has not traditionally and exclusively been performed by government.
Since the 1970s, when public access channels became a regular feature on cable systems, a variety of private
and public actors have operated public access channels, including: private cable operators; private nonprofit
organizations; municipalities; and other public and private community organizations such as churches,
schools, and libraries.
The history of public access channels in Manhattan further illustrates the point. In 1971, public access
channels first started operating in Manhattan. Those early Manhattan public access channels were operated
in large part by private cable operators, with some help from private nonprofit organizations. Those private
cable operators continued to operate the public access channels until the early 1990s, when MNN (also a
private entity) began to operate the public access channels.
In short, operating public access channels on a cable system is not a traditional, exclusive public function
within the meaning of this Court’s cases.
* {Court’s footnote 1}Relatedly, this Court has recognized that a private entity may, under certain
circumstances, be deemed a state actor when the government has outsourced one of its constitutional
obligations to a private entity. In West v. Atkins, for example, the State was constitutionally obligated to
provide medical care to prison inmates. 487 U. S. 42, 56 (1988). That scenario is not present here because
the government has no such obligation to operate public access channels.
B
1.1.21 96865
To avoid that conclusion, the producers widen the lens and contend that the relevant function here is not
simply the operation of public access channels on a cable system, but rather is more generally the operation
of a public forum for speech. And according to the producers, operation of a public forum for speech is a
traditional, exclusive public function.
That analysis mistakenly ignores the threshold state-action question. When the government provides a
forum for speech (known as a public forum), the government may be constrained by the First Amendment,
meaning that the government ordinarily may not exclude speech or speakers from the forum on the basis of
viewpoint, or sometimes even on the basis of content. See, e.g., Southeastern Promotions, Ltd. v. Conrad,
420 U.S. 546, 547, 555 (1975) (private theater leased to the city); Police Dept. of Chicago v. Mosley, 408
U.S. 92, 93, 96 (1972) (sidewalks); Hague v. Committee for Industrial Organization, 307 U.S. 496, 515–
516 (1939) (streets and parks).
By contrast, when a private entity provides a forum for speech, the private entity is not ordinarily
constrained by the First Amendment because the private entity is not a state actor. The private entity may
thus exercise editorial discretion over the speech and speakers in the forum. This Court so ruled in its 1976
decision in Hudgens v. NLRB. There, the Court held that a shopping center owner is not a state actor subject
to First Amendment requirements such as the public forum doctrine. 424 U.S. at 520–521.
The Hudgens decision reflects a commonsense principle: Providing some kind of forum for speech is not
an activity that only governmental entities have traditionally performed. Therefore, a private entity who
provides a forum for speech is not transformed by that fact alone into a state actor. After all, private property
owners and private lessees often open their property for speech. Grocery stores put up community bulletin
boards. Comedy clubs host open mic nights. As Judge Jacobs [in the Second Circuit opinion dissenting in
part] persuasively explained, it “is not at all a near-exclusive function of the state to provide the forums for
public expression, politics, information, or entertainment.”
In short, merely hosting speech by others is not a traditional, exclusive public function and does not alone
transform private entities into state actors subject to First Amendment constraints.
If the rule were otherwise, all private property owners and private lessees who open their property for
speech would be subject to First Amendment constraints and would lose the ability to exercise what they
deem to be appropriate editorial discretion within that open forum. Private property owners and private
lessees would face the unappetizing choice of allowing all comers or closing the platform altogether. “The
Constitution by no means requires such an attenuated doctrine of dedication of private property to public
use.” Hudgens, 424 U.S. at 519. Benjamin Franklin did not have to operate his newspaper as “a stagecoach,
with seats for everyone.” F. Mott, American Journalism 55 (3d ed. 1962). That principle still holds true. As
the Court said in Hudgens, to hold that private property owners providing a forum for speech are constrained
by the First Amendment would be “to create a court-made law wholly disregarding the constitutional basis
on which private ownership of property rests in this country.” The Constitution does not disable private
property owners and private lessees from exercising editorial discretion over speech and speakers on their
property.2
The producers here are seeking in effect to circumvent this Court’s case law, including Hudgens. But
Hudgens is sound, and we therefore reaffirm our holding in that case.3
C
Next, the producers retort that this case differs from Hudgens because New York City has designated MNN
to operate the public access channels on Time Warner’s cable system, and because New York State heavily
regulates MNN with respect to the public access channels. Under this Court’s cases, however, those facts
do not establish that MNN is a state actor.
New York City’s designation of MNN to operate the public access channels is analogous to a government
license, a government contract, or a government-granted monopoly. But as the Court has long held, the fact
that the government licenses, contracts with, or grants a monopoly to a private entity does not convert the
private entity into a state actor—unless the private entity is performing a traditional, exclusive public
function. See, e.g. San Francisco Arts & Athletics, 483 U.S. at 543–544 (exclusive-use rights and corporate
charters); Blum, 457 U.S. at 1011 (licenses); Rendell-Baker, 457 U.S. at 840–841 (contracts); Polk County,
454 U.S. at 319, n. 9, and 320–322 (law licenses); Jackson, 419 U.S. at 351–352 (electric monopolies);
Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 120–121 (1973)
(broadcast licenses); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 176–177 (1972) (liquor licenses); cf.
Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 638–639 (1819) (corporate charters). The same
principle applies if the government funds or subsidizes a private entity. See Blum, 457 U.S. at 1011;
Rendell– Baker, 457 U.S. at 840.
1.1.22 96865
Numerous private entities in America obtain government licenses, government contracts, or government-
granted monopolies. If those facts sufficed to transform a private entity into a state actor, a large swath of
private entities in America would suddenly be turned into state actors and be subject to a variety of
constitutional constraints on their activities. As this Court’s many state-action cases amply demonstrate,
that is not the law. Here, therefore, the City’s designation of MNN to operate the public access channels on
Time Warner’s cable system does not make MNN a state actor.
So, too, New York State’s extensive regulation of MNN’s operation of the public access channels does not
make MNN a state actor. Under the State’s regulations, air time on the public access channels must be free,
and programming must be aired on a first-come, first-served basis. Those regulations restrict MNN’s
editorial discretion and in effect require MNN to operate almost like a common carrier. But under this
Court’s cases, those restrictions do not render MNN a state actor.
In Jackson v. Metropolitan Edison Co., the leading case on point, the Court stated that the “fact that a
business is subject to state regulation does not by itself convert its action into that of the State.” In that case,
the Court held that “a heavily regulated, privately owned utility, enjoying at least a partial monopoly in the
providing of electrical service within its territory,” was not a state actor. The Court explained that the “mere
existence” of a “regulatory scheme”—even if “extensive and detailed”—did not render the utility a state
actor. Nor did it matter whether the State had authorized the utility to provide electric service to the
community, or whether the utility was the only entity providing electric service to much of that community.
This case closely parallels Jackson. Like the electric utility in Jackson, MNN is “a heavily regulated,
privately owned” entity. As in Jackson, the regulations do not transform the regulated private entity into a
state actor.
Put simply, being regulated by the State does not make one a state actor. See Sullivan, 526 U.S. at 52;
Blum, 457 U.S. at 1004; Rendell-Baker, 457 U.S. at 841–842; Jackson, 419 U.S. at 350; Moose Lodge, 407
U.S. at 176–177. As the Court’s cases have explained, the “being heavily regulated makes you a state actor”
theory of state action is entirely circular and would significantly endanger individual liberty and private
enterprise. The theory would be especially problematic in the speech context, because it could eviscerate
certain private entities’ rights to exercise editorial control over speech and speakers on their properties or
platforms. * * * *
In sum, we conclude that MNN is not subject to First Amendment constraints on how it exercises its
editorial discretion with respect to the public access channels. To be sure, MNN is subject to state-law
constraints on its editorial discretion (assuming those state laws do not violate a federal statute or the
Constitution). If MNN violates those state laws, or violates any applicable contracts, MNN could perhaps
face state-law sanctions or liability of some kind. We of course take no position on any potential state-law
questions. We simply conclude that MNN, as a private actor, is not subject to First Amendment constraints
on how it exercises editorial discretion over the speech and speakers on its public access channels.
III.
Perhaps recognizing the problem with their argument that MNN is a state actor under ordinary state-action
principles applicable to private entities and private property, the producers alternatively contend that the
public access channels are actually the property of New York City, not the property of Time Warner or
MNN. On this theory, the producers say (and the dissent agrees) that MNN is in essence simply managing
government property on behalf of New York City.
The short answer to that argument is that the public access channels are not the property of New York City.
Nothing in the record here suggests that a government (federal, state, or city) owns or leases either the cable
system or the public access channels at issue here. Both Time Warner and MNN are private entities. Time
Warner is the cable operator, and it owns its cable network, which contains the public access channels.
MNN operates those public access channels with its own facilities and equipment. The City does not own
or lease the public access channels, and the City does not possess a formal easement or other property
interest in those channels. * * * *
It is true that the City has allowed the cable operator, Time Warner, to lay cable along public rights-of-way
in the City. But Time Warner’s access to public rights-of-way does not alter the state-action analysis. * * *
* But the same is true for utility providers, such as the electric utility in Jackson. Put simply, a private
entity’s permission from government to use public rights-of-way does not render that private entity a state
actor.
Having said all that, our point here should not be read too broadly. Under the laws in certain States,
including New York, a local government may decide to itself operate the public access channels on a local
cable system (as many local governments in New York State and around the country already do), or could
take appropriate steps to obtain a property interest in the public access
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channels. Depending on the circumstances, the First Amendment might then constrain the local
government’s operation of the public access channels. We decide only the case before us in light of the
record before us.
* * *
[star ellipses in original]
It is sometimes said that the bigger the government, the smaller the individual. Consistent with the text of
the Constitution, the state-action doctrine enforces a critical boundary between the government and the
individual, and thereby protects a robust sphere of individual liberty. Expanding the state-action doctrine
beyond its traditional boundaries would expand governmental control while restricting individual liberty
and private enterprise. We decline to do so in this case.
MNN is a private entity that operates public access channels on a cable system. Operating public access
channels on a cable system is not a traditional, exclusive public function. A private entity such as MNN
who opens its property for speech by others is not transformed by that fact alone into a state actor. Under
the text of the Constitution and our precedents, MNN is not a state actor subject to the First Amendment.
We reverse in relevant part the judgment of the Second Circuit, and we remand the case for further
proceedings consistent with this opinion.
It is so ordered.
Justice Sotomayor, with whom Justice Ginsburg, Justice Breyer, and Justice Kagan join, dissenting.
The Court tells a very reasonable story about a case that is not before us. I write to address the one that is.
This is a case about an organization appointed by the government to administer a constitutional public
forum. (It is not, as the Court suggests, about a private property owner that simply opened up its property
to others.) New York City (the City) secured a property interest in public-access television channels when
it granted a cable franchise to a cable company. State regulations require those public-access channels to
be made open to the public on terms that render them a public forum. The City contracted out the
administration of that forum to a private organization, petitioner Manhattan Community Access
Corporation (MNN). By accepting that agency relationship, MNN stepped into the City’s shoes and thus
qualifies as a state actor, subject to the First Amendment like any other.
I
A
A cable-television franchise is, essentially, a license to create a system for distributing cable TV in a certain
area. It is a valuable right, usually conferred on a private company by a local government. A private
company cannot enter a local cable market without one.
Cable companies transmit content through wires that stretch “between a transmission facility and the
television sets of individual subscribers.” Creating this network of wires is a disruptive undertaking that
“entails the use of public rights-of-way and easements.”
New York State authorizes municipalities to grant cable franchises to cable companies of a certain size only
if those companies agree to set aside at least one public access channel. New York then requires that those
public-access channels be open to all comers on “a first-come, first-served, nondiscriminatory basis.”
Likewise, the State prohibits both cable franchisees and local governments from “exercis[ing] any editorial
control” over the channels, aside from regulating obscenity and other unprotected content.
B
Years ago, New York City (no longer a party to this suit) and Time Warner Entertainment Company (never
a party to this suit) entered into a cable-franchise agreement. Time Warner received a cable franchise; the
City received public-access channels. The
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agreement also provided that the public-access channels would be operated by an independent, nonprofit
corporation chosen by the Manhattan borough president. But the City, as the practice of other New York
municipalities confirms, could have instead chosen to run the channels itself.
MNN is the independent nonprofit that the borough president appointed to run the channels; indeed, MNN
appears to have been incorporated in 1991 for that precise purpose, with seven initial board members
selected by the borough president (though only two thus selected today). The City arranged for MNN to
receive startup capital from Time Warner and to be funded through franchise fees from Time Warner and
other Manhattan cable franchisees. As the borough president announced upon MNN’s formation in 1991,
MNN’s “central charge is to administer and manage all the public access channels of the cable television
systems in Manhattan.”
As relevant here, respondents DeeDee Halleck and Jesus Papoleto Melendez sued MNN in U.S. District
Court for the Southern District of New York * * * and alleged that the public-access channels, “[r]equired
by state regulation and [the] local franchise agreements,” are “a designated public forum of unlimited
character”; that the City had “delegated control of that public forum to MNN”; and that MNN had, in turn,
engaged in viewpoint discrimination in violation of respondents’ First Amendment rights. * * * *
II
I would affirm the judgment below. * * * * Just as the City would have been subject to the First Amendment
had it chosen to run the forum itself, MNN assumed the same responsibility when it accepted the delegation.
A
When a person alleges a violation of the right to free speech, courts generally must consider not only what
was said but also in what context it was said.
[Sotomayor’s discusses viewpoint discrimination and public forum doctrine under the First Amendment]
[Sotomayor discusses and concludes that public access channels represent a type of property interest of the
government that subjects them to the requirements of the First Amendment.]
B
If New York’s public-access channels are a public forum, it follows that New York cannot evade the First
Amendment by contracting out administration of that forum to a private agent. When MNN took on the
responsibility of administering the forum, it stood in the City’s shoes and became a state actor * * * *
This conclusion follows from the Court’s decision in West v. Atkins, 487 U.S. 42 (1988). The Court in
West unanimously held that a doctor hired to provide medical care to state prisoners was a state actor
[subject to the Constitution]. Each State must provide medical care to prisoners, the Court explained, and
when a State hires a private doctor to do that job, the doctor becomes a state actor, “clothed with the
authority of state law.” If a doctor hired by the State abuses his role, the harm is “caused, in the sense
relevant for state-action inquiry,” by the State’s having incarcerated the prisoner and put his medical care
in that doctor’s hands. * * * *
West resolves this case. Although the settings are different, the legal features are the same: When a
government (1) makes a choice that triggers constitutional obligations, and then (2) contracts out those
constitutional responsibilities to a private entity, that entity —in agreeing to take on the job—becomes a
state actor [for purposes of the Constitution].
Not all acts of governmental delegation necessarily trigger constitutional obligations, but this one did. * *
* *
The City could have done the job itself, but it instead delegated that job to a private entity, MNN. MNN
could have said no, but it said yes. (Indeed, it appears to exist entirely to do this job.) By accepting the job,
MNN accepted the City’s responsibilities. See West, 487 U. S., at 55. The First Amendment does not fall
silent simply because a government hands off the administration of its constitutional duties to a private
actor.
1.1.25 96865
III
The majority acknowledges that the First Amendment could apply when a local government either (1) has
a property interest in public-access channels or (2) is more directly involved in administration of those
channels than the City is here. And it emphasizes that it “decide[s] only the case before us in light of the
record before us.” These case-specific qualifiers sharply limit the immediate effect of the majority’s
decision, but that decision is still meaningfully wrong in two ways. First, the majority erroneously decides
the property question against the plaintiffs as a matter of law. Second, and more fundamentally, the majority
mistakes a case about the government choosing to hand off responsibility to an agent for a case about a
private entity that simply enters a marketplace. * * * *
More fundamentally, the majority’s opinion erroneously fixates on a type of case that is not before us: one
in which a private entity simply enters the marketplace and is then subject to government regulation. The
majority swings hard at the wrong pitch * * * *
The majority focuses on Jackson v. Metropolitan Edison Co., 419 U. S. 345 (1974), which is a paradigmatic
example of a line of cases that reject [constitutional] liability for private actors that simply operate against
a regulatory backdrop. Jackson emphasized that the “fact that a business is subject to state regulation does
not by itself convert its action into that of the State.” * * * *
The Jackson line of cases is inapposite here. MNN is not a private entity that simply ventured into the
marketplace. * * * * To say that MNN is nothing more than a private organization regulated by the
government is like saying that a waiter at a restaurant is an independent food seller who just happens to be
highly regulated by the restaurant’s owners.
The majority also relies on the Court’s statements that its “public function” test requires that a function
have been “traditionally and exclusively performed” by the government. (emphasis deleted). Properly
understood, that rule cabins liability in cases such as Jackson in which a private actor ventures of its own
accord into territory shared (or regulated) by the government (e.g., by opening a power company or a
shopping center). The Court made clear in West that the rule did not reach further, explaining that “the fact
that a state employee’s role parallels one in the private sector” does not preclude a finding of state action.
When the government hires an agent, in other words, the question is not whether it hired the agent to do
something that can be done in the private marketplace too. If that were the key question, the doctor in West
would not have been a state actor. Nobody thinks that orthopedics is a function “traditionally exclusively
reserved to the State.”
The majority consigns West to a footnote, asserting that its “scenario is not present here because the
government has no [constitutional] obligation to operate public access channels.” The majority suggests
that West is different because “the State was constitutionally obligated to provide medical care to prison
inmates.” But what the majority ignores is that the State in West had no constitutional obligation to open
the prison or incarcerate the prisoner in the first place; the obligation to provide medical care arose when it
made those prior choices.
The City had a comparable constitutional obligation here—one brought about by its own choices, made
against a state-law backdrop. The City, of course, had no constitutional obligation to award a cable franchise
or to operate public-access channels. But once the City did award a cable franchise, New York law required
the City to obtain public-access channels, and to open them up as a public forum. That is when the City’s
obligation to act in accordance with the First Amendment with respect to the channels arose. That is why,
when the City handed the administration of that forum off to an agent, the Constitution followed.
* * * * But two dangers lurk here regardless. On the one hand, if the City’s decision to outsource the
channels to a private entity did render the First Amendment irrelevant, there would be substantial cause to
worry about the potential abuses that could follow. Can a state university evade the First Amendment by
hiring a nonprofit to apportion funding to student groups? Can a city do the same by appointing a
corporation to run a municipal theater? What about its parks?
On the other hand, the majority hastens to qualify its decision and to cabin it to the specific facts of this
case. Those are prudent limitations. Even so, the majority’s focus on Jackson still risks sowing confusion
among the lower courts about how and when government outsourcing will render any abuses that follow
beyond the reach of the Constitution.
In any event, there should be no confusion here. MNN is not a private entity that ventured into the
marketplace and found itself subject to government regulation. It was asked to do a job by the government
and compensated accordingly. If it does not want to do that job anymore, it can stop (subject, like any other
entity, to its contractual obligations). But as long as MNN continues to wield the power it was given by the
government, it stands in the government’s shoes and must abide by the First Amendment like any other
government actor.
1.1.26 96865
IV
This is not a case about bigger governments and smaller individuals, it is a case about principals and agents.
New York City opened up a public forum on public-access channels in which it has a property interest. It
asked MNN to run that public forum, and MNN accepted the job. That makes MNN subject to the First
Amendment, just as if the City had decided to run the public forum itself.
While the majority emphasizes that its decision is narrow and factbound, that does not make it any less
misguided. It is crucial that the Court does not continue to ignore the reality, fully recognized by our
precedents, that private actors who have been delegated constitutional responsibilities like this one should
be accountable to the Constitution’s demands. I respectfully dissent.
Check Your Understanding
VI. Reconsidering The Civil Rights Cases
The Civil Rights Cases
109 U.S. 3 (1883)
(Consolidating: U.S. v Stanley; U.S. v Ryan; U.S. v Nichols; U.S. v Singleton; Robinson and wife v
Memphis & Charleston Railroad Company)
Bradley, J., delivered the Opinion of the Court in which Waite, C.J., Miller, Field, Woods, Matthews, Gray,
and Blatchford, JJ, joined. Harlan, J., filed a dissenting opinion.
{from the Court’s Syllabus}:
These cases were all founded on the first and second sections of the Act of Congress known as the Civil
Rights Act, passed March 1st, 1875, entitled “An Act to protect all citizens in their civil and legal rights.”
18 Stat. 335. Two of the cases, those against Stanley and Nichols, were indictments for denying to persons
of color the accommodations and privileges of an inn or hotel; two of them, those against Ryan and
Singleton, were, one on information, the other an indictment, for denying to individuals the privileges and
accommodations of a theatre, the information against Ryan being for refusing a colored person a seat in the
dress circle of Maguire’s theatre in San Francisco, and the indictment against Singleton was for denying to
another person, whose color was not stated, the full enjoyment of the accommodations of the theatre known
as the Grand Opera House in New York, said denial not being made for any reasons by law applicable to
citizens of every race and color, and regardless of any previous condition of servitude.
The case of Robinson and wife against the Memphis & Charleston R.R. Company was an action brought
in the Circuit Court of the United States for the Western District of Tennessee to recover the penalty of five
hundred dollars given by the second section of the act, and the gravamen was the refusal by the conductor
of the railroad company to allow the wife to ride in the ladies’ car, for the reason, as stated in one of the
counts, that she was a person of African descent. * * * *
The Stanley, Ryan, Nichols, and Singleton cases were submitted together by the solicitor general at the last
term of court, on the 7th day of November, 1882. There were no appearances, and no briefs filed for the
defendants.
The Robinson case was submitted on the briefs at the last term, on the 9th day of March, 1883.
Mr. Justice Bradley delivered the opinion of the Court.
It is obvious that the primary and important question in all the cases is the constitutionality of the law: for
if the law is unconstitutional none of the prosecutions can stand.
The sections of the law referred to provide as follows:
SEC. 1. That all persons within the jurisdiction of the United States shall be entitled to the full and equal
enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on
land or water, theatres, and other places of public amusement; subject only to the conditions and limitations
established by law, and applicable alike to citizens of every race and color, regardless of any previous
condition of servitude.
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SEC. 2. That any person who shall violate the foregoing section by denying to any citizen, except for
reasons by law applicable to citizens of every race and color, and regardless of any previous condition of
servitude, the full enjoyment of any of the accommodations, advantages, facilities, or privileges in said
section enumerated, or by aiding or inciting such denial, shall for every such offence forfeit and pay the
sum of five hundred dollars to the person aggrieved thereby, to be recovered in an action of debt, with full
costs; and shall also, for every such offence, be deemed guilty of a misdemeanor, and, upon conviction
thereof, shall be fined not less than five hundred nor more than one thousand dollars, or shall be imprisoned
not less than thirty days nor more than one year: Provided, That all persons may elect to sue for the penalty
aforesaid, or to proceed under their rights at common law and by State statutes; and having so elected to
proceed in the one mode or the other, their right to proceed in the other jurisdiction shall be barred. But this
provision shall not apply to criminal proceedings, either under this act or the criminal law of any State: And
provided further, That a judgment for the penalty in favor of the party aggrieved, or a judgment upon an
indictment, shall be a bar to either prosecution respectively.
Are these sections constitutional? The first section, which is the principal one, cannot be fairly understood
without attending to the last clause, which qualifies the preceding part.
The essence of the law is, not to declare broadly that all persons shall be entitled to the full and equal
enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances, and
theatres; but that such enjoyment shall not be subject to any conditions applicable only to citizens of a
particular race or color, or who had been in a previous condition of servitude. In other words, it is the
purpose of the law to declare that, in the enjoyment of the accommodations and privileges of inns, public
conveyances, theatres, and other places of public amusement, no distinction shall be made between citizens
of different race or color, or between those who have, and those who have not, been slaves. Its effect is to
declare, that in all inns, public conveyances, and places of amusement, colored citizens, whether formerly
slaves or not, and citizens of other races, shall have the same accommodations and privileges in all inns,
public conveyances, and places of amusement as are enjoyed by white citizens; and vice versa. The second
section makes it a penal offence in any person to deny to any citizen of any race or color, regardless of
previous servitude, any of the accommodations or privileges mentioned in the first section.
Has Congress constitutional power to make such a law? Of course, no one will contend that the power to
pass it was contained in the Constitution before the adoption of the last three amendments. The power is
sought, first, in the Fourteenth Amendment, and the views and arguments of distinguished Senators,
advanced whilst the law was under consideration, claiming authority to pass it by virtue of that amendment,
are the principal arguments adduced in favor of the power. We have carefully considered those arguments,
as was due to the eminent ability of those who put them forward, and have felt, in all its force, the weight
of authority which always invests a law that Congress deems itself competent to pass. But the responsibility
of an independent judgment is now thrown upon this court; and we are bound to exercise it according to
the best lights we have.
The first section of the Fourteenth Amendment (which is the one relied on), after declaring who shall be
citizens of the United States, and of the several States, is prohibitory in its character, and prohibitory upon
the States. It declares that:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life, liberty, or property without due process of law;
nor deny to any person within its jurisdiction the equal protection of the laws.
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. It not only does this, but, in order that the national will, thus
declared, may not be a mere brutum fulmen, the last section of the amendment invests Congress with power
to enforce it by appropriate legislation. To enforce what? To enforce the prohibition. To adopt appropriate
legislation for correcting the effects of such prohibited State laws and State acts, and thus to render them
effectually null, void, and innocuous. This is the legislative power conferred upon Congress, and this is the
whole of it. It does not invest Congress with power to legislate upon subjects which are within the domain
of State legislation; but to provide modes of relief against State legislation, or State action, of the kind
referred to. It does not authorize Congress to create a code of municipal law for the regulation of private
rights; but to provide modes of redress against the operation of State laws, and the action of State officers
executive or judicial, when these are subversive of the fundamental rights specified in the amendment.
Positive rights and privileges are undoubtedly secured by the Fourteenth Amendment; but they are secured
by way of prohibition against State laws and State proceedings affecting those rights and privileges, and by
power given to Congress to legislate for the purpose of carrying such prohibition into effect; and such
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legislation must necessarily be predicated upon such supposed State laws or State proceedings, and be
directed to the correction of their operation and effect. * * * *
[U]ntil some State law has been passed, or some State action through its officers or agents has been taken,
adverse to the rights of citizens sought to be protected by the Fourteenth Amendment, no legislation of the
United States under said amendment, nor any proceeding under such legislation, can be called into activity:
for the prohibitions of the amendment are against State laws and acts done under State authority. Of course,
legislation may, and should be, provided in advance to meet the exigency when it arises; but it should be
adapted to the mischief and wrong which the amendment was intended to provide against; and that is, State
laws, or State action of some kind, adverse to the rights of the citizen secured by the amendment. Such
legislation cannot properly cover the whole domain of rights appertaining to life, liberty and property,
defining them and providing for their vindication. That would be to establish a code of municipal law
regulative of all private rights between man and man in society. It would be to make Congress take the
place of the State legislatures and to supersede them. It is absurd to affirm that, because the rights of life,
liberty and property (which include all civil rights that men have), are by the amendment sought to be
protected against invasion on the part of the State without due process of law, Congress may therefore
provide due process of law for their vindication in every case; and that, because the denial by a State to any
persons, of the equal protection of the laws, is prohibited by the amendment, therefore Congress may
establish laws for their equal protection. In fine, the legislation which Congress is authorized to adopt in
this behalf is not general legislation upon the rights of the citizen, but corrective legislation, that is, such as
may be necessary and proper for counteracting such laws as the States may adopt or enforce, and which,
by the amendment, they are prohibited from making or enforcing, or such acts and proceedings as the States
may commit or take, and which, by the amendment, they are prohibited from committing or taking. It is not
necessary for us to state, if we could, what legislation would be proper for Congress to adopt. It is sufficient
for us to examine whether the law in question is of that character.
An inspection of the law shows that it makes no reference whatever to any supposed or apprehended
violation of the Fourteenth Amendment on the part of the States. It is not predicated on any such view. It
proceeds ex directo to declare that certain acts committed by individuals shall be deemed offences, and
shall be prosecuted and punished by proceedings in the courts of the United States. It does not profess to
be corrective of any constitutional wrong committed by the States; it does not make its operation to depend
upon any such wrong committed. It applies equally to cases arising in States which have the justest laws
respecting the personal rights of citizens, and whose authorities are ever ready to enforce such laws, as to
those which arise in States that may have violated the prohibition of the amendment. In other words, it steps
into the domain of local jurisprudence, and lays down rules for the conduct of individuals in society towards
each other, and imposes sanctions for the enforcement of those rules, without referring in any manner to
any supposed action of the State or its authorities.
If this legislation is appropriate for enforcing the prohibitions of the amendment, it is difficult to see where
it is to stop. Why may not Congress with equal show of authority enact a code of laws for the enforcement
and vindication of all rights of life, liberty, and property? If it is supposable that the States may deprive
persons of life, liberty, and property without due process of law (and the amendment itself does suppose
this), why should not Congress proceed at once to prescribe due process of law for the protection of every
one of these fundamental rights, in every possible case, as well as to prescribe equal privileges in inns,
public conveyances, and theatres? The truth is, that the implication of a power to legislate in this manner is
based upon the assumption that if the States are forbidden to legislate or act in a particular way on a
particular subject, and power is conferred upon Congress to enforce the prohibition, this gives Congress
power to legislate generally upon that subject, and not merely power to provide modes of redress against
such State legislation or action. The assumption is certainly unsound. It is repugnant to the Tenth
Amendment of the Constitution, which declares that powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.
* * * * [I]t is proper to state that civil rights, such as are guaranteed by the Constitution against State
aggression, cannot be impaired by the wrongful acts of individuals, unsupported by State authority in the
shape of laws, customs, or judicial or executive proceedings. The wrongful act of an individual, unsupported
by any such authority, is simply a private wrong, or a crime of that individual; an invasion of the rights of
the injured party, it is true, whether they affect his person, his property, or his reputation; but if not
sanctioned in some way by the State, or not done under State authority, his rights remain in full force, and
may presumably be vindicated by resort to the laws of the State for redress. An individual cannot deprive
a man of his right to vote, to hold property, to buy and sell, to sue in the courts, or to be a witness or a juror;
he may, by force or fraud, interfere with the enjoyment of the right in a particular case; he may commit an
assault against the person, or commit murder, or use ruffian violence at the polls, or slander the good name
of a fellow citizen; but, unless protected in these wrongful acts by some shield of State law or State
authority, he cannot destroy or injure the right; he will only render himself amenable to satisfaction or
punishment; and amenable therefor to the laws of the State where the wrongful acts are committed. Hence,
in all those cases where the Constitution seeks to protect the rights
1.1.29 96865
of the citizen against discriminative and unjust laws of the State by prohibiting such laws, it is not individual
offences, but abrogation and denial of rights, which it denounces, and for which it clothes the Congress
with power to provide a remedy. This abrogation and denial of rights, for which the States alone were or
could be responsible, was the great seminal and fundamental wrong which was intended to be remedied.
And the remedy to be provided must necessarily be predicated upon that wrong. It must assume that in the
cases provided for, the evil or wrong actually committed rests upon some State law or State authority for
its excuse and perpetration.
* * * * [I]t is clear that the law in question cannot be sustained by any grant of legislative power
made to Congress by the Fourteenth Amendment. That amendment prohibits the States from denying to
any person the equal protection of the laws, and declares that Congress shall have power to enforce, by
appropriate legislation, the provisions of the amendment. The law in question, without any reference to
adverse State legislation on the subject, declares that all persons shall be entitled to equal accommodations
and privileges of inns, public conveyances, and places of public amusement, and imposes a penalty upon
any individual who shall deny to any citizen such equal accommodations and privileges. This is not
corrective legislation; it is primary and direct; it takes immediate and absolute possession of the subject of
the right of admission to inns, public conveyances, and places of amusement. It supersedes and displaces
State legislation on the same subject, or only allows it permissive force. It ignores such legislation, and
assumes that the matter is one that belongs to the domain of national regulation. Whether it would not have
been a more effective protection of the rights of citizens to have clothed Congress with plenary power over
the whole subject, is not now the question. What we have to decide is, whether such plenary power has
been conferred upon Congress by the Fourteenth Amendment; and, in our judgment, it has not.
We have discussed the question presented by the law on the assumption that a right to enjoy equal
accommodation and privileges in all inns, public conveyances, and places of public amusement, is one of
the essential rights of the citizen which no State can abridge or interfere with. Whether it is such a right, or
not, is a different question which, in the view we have taken of the validity of the law on the ground already
stated, it is not necessary to examine.
* * * * But the power of Congress to adopt direct and primary, as distinguished from corrective
legislation, on the subject in hand, is sought, in the second place, from the Thirteenth Amendment, which
abolishes slavery. This amendment declares “that neither slavery, nor involuntary servitude, except as a
punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States,
or any place subject to their jurisdiction;” and it gives Congress power to enforce the amendment by
appropriate legislation.
This amendment, as well as the Fourteenth, is undoubtedly self-executing without any ancillary legislation,
so far as its terms are applicable to any existing state of circumstances. By its own unaided force and effect
it abolished slavery, and established universal freedom. Still, legislation may be necessary and proper to
meet all the various cases and circumstances to be affected by it, and to prescribe proper modes of redress
for its violation in letter or spirit. And such legislation may be primary and direct in its character; for the
amendment is not a mere prohibition of State laws establishing or upholding slavery, but an absolute
declaration that slavery or involuntary servitude shall not exist in any part of the United States.
It is true, that slavery cannot exist without law, any more than property in lands and goods can exist without
law: and, therefore, the Thirteenth Amendment may be regarded as nullifying all State laws which establish
or uphold slavery. But it has a reflex character also, establishing and decreeing universal civil and political
freedom throughout the United States; and it is assumed, that the power vested in Congress to enforce the
article by appropriate legislation, clothes Congress with power to pass all laws necessary and proper for
abolishing all badges and incidents of slavery in the United States: and upon this assumption it is claimed,
that this is sufficient authority for declaring by law that all persons shall have equal accommodations and
privileges in all inns, public conveyances, and places of amusement; the argument being, that the denial of
such equal accommodations and privileges is, in itself, a subjection to a species of servitude within the
meaning of the amendment. Conceding the major proposition to be true, that Congress has a right to enact
all necessary and proper laws for the obliteration and prevention of slavery with all its badges and incidents,
is the minor proposition also true, that the denial to any person of admission to the accommodations and
privileges of an inn, a public conveyance, or a theatre, does subject that person to any form of servitude, or
tend to fasten upon him any badge of slavery? If it does not, then power to pass the law is not found in the
Thirteenth Amendment.
In a very able and learned presentation of the cognate question as to the extent of the rights, privileges and
immunities of citizens which cannot rightfully be abridged by state laws under the Fourteenth Amendment,
made in a former case, a long list of burdens and disabilities of a servile character, incident to feudal
vassalage in France, and which were abolished by the decrees of the National Assembly, was presented for
the purpose of showing that all inequalities and observances exacted by one man from another were
servitudes, or badges of slavery, which a great nation, in its effort to establish universal liberty, made haste
to wipe
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out and destroy. But these were servitudes imposed by the old law, or by long custom, which had the force
of law, and exacted by one man from another without the latter’s consent. Should any such servitudes be
imposed by a state law, there can be no doubt that the law would be repugnant to the Fourteenth, no less
than to the Thirteenth Amendment; nor any greater doubt that Congress has adequate power to forbid any
such servitude from being exacted.
But is there any similarity between such servitudes and a denial by the owner of an inn, a public conveyance,
or a theatre, of its accommodations and privileges to an individual, even though the denial be founded on
the race or color of that individual? Where does any slavery or servitude, or badge of either, arise from such
an act of denial? Whether it might not be a denial of a right which, if sanctioned by the state law, would be
obnoxious to the prohibitions of the Fourteenth Amendment, is another question. But what has it to do with
the question of slavery?
It may be that by the Black Code (as it was called), in the times when slavery prevailed, the proprietors of
inns and public conveyances were forbidden to receive persons of the African race, because it might assist
slaves to escape from the control of their masters. This was merely a means of preventing such escapes,
and was no part of the servitude itself. A law of that kind could not have any such object now, however
justly it might be deemed an invasion of the party’s legal right as a citizen, and amenable to the prohibitions
of the Fourteenth Amendment.
The long existence of African slavery in this country gave us very distinct notions of what it was, and what
were its necessary incidents. Compulsory service of the slave for the benefit of the master, restraint of his
movements except by the master’s will, disability to hold property, to make contracts, to have a standing in
court, to be a witness against a white person, and such like burdens and incapacities, were the inseparable
incidents of the institution. Severer punishments for crimes were imposed on the slave than on free persons
guilty of the same offences. Congress, as we have seen, by the Civil Rights Bill of 1866, passed in view of
the Thirteenth Amendment, before the Fourteenth was adopted, undertook to wipe out these burdens and
disabilities, the necessary incidents of slavery, constituting its substance and visible form; and to secure to
all citizens of every race and color, and without regard to previous servitude, those fundamental rights
which are the essence of civil freedom, namely, the same right to make and enforce contracts, to sue, be
parties, give evidence, and to inherit, purchase, lease, sell and convey property, as is enjoyed by white
citizens. Whether this legislation was fully authorized by the Thirteenth Amendment alone, without the
support which it afterward received from the Fourteenth Amendment, after the adoption of which it was re-
enacted with some additions, it is not necessary to inquire. It is referred to for the purpose of showing that
at that time (in 1866) Congress did not assume, under the authority given by the Thirteenth Amendment, to
adjust what may be called the social rights of men and races in the community; but only to declare and
vindicate those fundamental rights which appertain to the essence of citizenship, and the enjoyment or
deprivation of which constitutes the essential distinction between freedom and slavery.
We must not forget that the province and scope of the Thirteenth and Fourteenth amendments are different;
the former simply abolished slavery: the latter prohibited the States from abridging the privileges or
immunities of citizens of the United States; from depriving them of life, liberty, or property without due
process of law, and from denying to any the equal protection of the laws. The amendments are different,
and the powers of Congress under them are different. What Congress has power to do under one, it may not
have power to do under the other. Under the Thirteenth Amendment, it has only to do with slavery and its
incidents. Under the Fourteenth Amendment, it has power to counteract and render nugatory all State laws
and proceedings which have the effect to abridge any of the privileges or immunities of citizens of the
United States, or to deprive them of life, liberty or property without due process of law, or to deny to any
of them the equal protection of the laws. Under the Thirteenth Amendment, the legislation, so far as
necessary or proper to eradicate all forms and incidents of slavery and involuntary servitude, may be direct
and primary, operating upon the acts of individuals, whether sanctioned by State legislation or not; under
the Fourteenth, as we have already shown, it must necessarily be, and can only be, corrective in its character,
addressed to counteract and afford relief against State regulations or proceedings.
The only question under the present head, therefore, is, whether the refusal to any persons of the
accommodations of an inn, or a public conveyance, or a place of public amusement, by an individual, and
without any sanction or support from any State law or regulation, does inflict upon such persons any manner
of servitude, or form of slavery, as those terms are understood in this country? Many wrongs may be
obnoxious to the prohibitions of the Fourteenth Amendment which are not, in any just sense, incidents or
elements of slavery. Such, for example, Would be the taking of private property without due process of
law; or allowing persons who have committed certain crimes (horse stealing, for example) to be seized and
hung by the posse comitatus without regular trial; or denying to any person, or class of persons, the right to
pursue any peaceful avocations allowed to others. What is called class legislation would belong to this
category, and would be obnoxious to the prohibitions of the Fourteenth Amendment, but would not
necessarily be so to the Thirteenth, when not involving the idea of any subjection of one man to
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another. The Thirteenth Amendment has respect, not to distinctions of race, or class, or color, but to slavery.
The Fourteenth Amendment extends its protection to races and classes, and prohibits any State legislation
which has the effect of denying to any race or class, or to any individual, the equal protection of the laws.
* * * * After giving to these questions all the consideration which their importance demands, we are
forced to the conclusion that such an act of refusal has nothing to do with slavery or involuntary servitude,
and that if it is violative of any right of the party, his redress is to be sought under the laws of the State; or
if those laws are adverse to his rights and do not protect him, his remedy will be found in the corrective
legislation which Congress has adopted, or may adopt, for counteracting the effect of State laws, or State
action, prohibited by the Fourteenth Amendment. It would be running the slavery argument into the ground
to make it apply to every act of discrimination which a person may see fit to make as to the guests he will
entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theatre, or
deal with in other matters of intercourse or business. Innkeepers and public carriers, by the laws of all the
States, so far as we are aware, are bound, to the extent of their facilities, to furnish proper accommodation
to all unobjectionable persons who in good faith apply for them. If the laws themselves make any unjust
discrimination, amenable to the prohibitions of the Fourteenth Amendment, Congress has full power to
afford a remedy under that amendment and in accordance with it.
When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the
inseparable concomitants of that state, there must be some stage in the progress of his elevation when he
takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a
citizen, or a man, are to be protected in the ordinary modes by which other men’s rights are protected. There
were thousands of free colored people in this country before the abolition of slavery, enjoying all the
essential rights of life, liberty and property the same as white citizens; yet no one, at that time, thought that
it was any invasion of his personal status as a freeman because he was not admitted to all the privileges
enjoyed by white citizens, or because he was subjected to discriminations in the enjoyment of
accommodations in inns, public conveyances and places of amusement. Mere discriminations on account
of race or color were not regarded as badges of slavery. If, since that time, the enjoyment of equal rights in
all these respects has become established by constitutional enactment, it is not by force of the Thirteenth
Amendment (which merely abolishes slavery), but by force of the Thirteenth and Fifteenth Amendments.
On the whole we are of opinion, that no countenance of authority for the passage of the law in question can
be found in either the Thirteenth or Fourteenth Amendment of the Constitution; and no other ground of
authority for its passage being suggested, it must necessarily be declared void, at least so far as its operation
in the several States is concerned.
This conclusion disposes of the cases now under consideration. In the cases of the United States v. Michael
Ryan, and of Richard A. Robinson and Wife v. The Memphis Charleston Railroad Company, the judgments
must be affirmed. In the other cases, the answer to be given will be that the first and second sections of the
act of Congress of March 1st, 1875, entitled “An Act to protect all citizens in their civil and legal rights,”
are unconstitutional and void, and that judgment should be rendered upon the several indictments in those
cases accordingly.
And it is so ordered.
Mr. Justice Harlan dissenting.
The opinion in these cases proceeds, it seems to me, upon grounds entirely too narrow and artificial. I
cannot resist the conclusion that the substance and spirit of the recent amendments of the Constitution have
been sacrificed by a subtle and ingenious verbal criticism. “It is not the words of the law but the internal
sense of it that makes the law: the letter of the law is the body; the sense and reason of the law is the soul.”
Constitutional provisions, adopted in the interest of liberty, and for the purpose of securing, through national
legislation, if need be, rights inhering in a state of freedom, and belonging to American citizenship, have
been so construed as to defeat the ends the people desired to accomplish, which they attempted to
accomplish, and which they supposed they had accomplished by changes in their fundamental law. By this
I do not mean that the determination of these cases should have been materially controlled by considerations
of mere expediency or policy. I mean only, in this form, to express an earnest conviction that the court has
departed from the familiar rule requiring, in the interpretation of constitutional provisions, that full effect
be given to the intent with which they were adopted.
* * * * The court adjudges, I think erroneously, that Congress is without power, under either the
Thirteenth or Fourteenth Amendment, to establish such regulations, and that the first and second sections
of the statute are, in all their parts, unconstitutional and void.
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* * * * The Thirteenth Amendment, it is conceded, did something more than to prohibit slavery as
an institution, resting upon distinctions of race, and upheld by positive law. My brethren admit that it
established and decreed universal civil freedom throughout the United States. But did the freedom thus
established involve nothing more than exemption from actual slavery? Was nothing more intended than to
forbid one man from owning another as property? Was it the purpose of the nation simply to destroy the
institution, and then remit the race, theretofore held in bondage, to the several States for such protection, in
their civil rights, necessarily growing out of freedom, as those States, in their discretion, might choose to
provide? Were the States against whose protest the institution was destroyed, to be left free, so far as
national interference was concerned, to make or allow discriminations against that race, as such, in the
enjoyment of those fundamental rights which by universal concession, inhere in a state of freedom?
* * * *
That there are burdens and disabilities which constitute badges of slavery and servitude, and that the power
to enforce by appropriate legislation the Thirteenth Amendment may be exerted by legislation of a direct
and primary character, for the eradication, not simply of the institution, but of its badges and incidents, are
propositions which ought to be deemed indisputable. *
* * * I do not contend that the Thirteenth Amendment invests Congress with authority, by legislation,
to define and regulate the entire body of the civil rights which citizens enjoy, or may enjoy, in the several
States. But I hold that since slavery, as the court has repeatedly declared, was the moving or principal cause
of the adoption of that amendment, and since that institution rested wholly upon the inferiority, as a race,
of those held in bondage, their freedom necessarily involved immunity from, and protection against, all
discrimination against them, because of their race, in respect of such civil rights as belong to freemen of
other races. Congress, therefore, under its express power to enforce that amendment, by appropriate
legislation, may enact laws to protect that people against the deprivation, because of their race, of any civil
rights granted to other freemen in the same State; and such legislation may be of a direct and primary
character, operating upon States, their officers and agents, and, also, upon, at least, such individuals and
corporations as exercise public functions and wield power and authority under the State.
* * * * I am of the opinion that such discrimination practised by corporations and individuals in the
exercise of their public or quasi-public functions is a badge of servitude the imposition of which Congress
may prevent under its power, by appropriate legislation, to enforce the Thirteenth Amendment; and,
consequently, without reference to its enlarged power under the Fourteenth Amendment, the act of March
1, 1875, is not, in my judgment, repugnant to the Constitution.
It remains now to consider these cases with reference to the power Congress has possessed since the
adoption of the Fourteenth Amendment. Much that has been said as to the power of Congress under the
Thirteenth Amendment is applicable to this branch of the discussion, and will not be repeated.
* * * * The assumption that this amendment consists wholly of prohibitions upon State laws and
State proceedings in hostility to its provisions, is unauthorized by its language. The first clause of the first
section—“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States, and of the State wherein they reside”—is of a distinctly affirmative character.
In its application to the colored race, previously liberated, it created and granted, as well citizenship of the
United States, as citizenship of the State in which they respectively resided. It introduced all of that race,
whose ancestors had been imported and sold as slaves, at once, into the political community known as the
“People of the United States.” They became, instantly, citizens of the United States, and of their respective
States. * * * *
It is, therefore, an essential inquiry what, if any, right, privilege or immunity was given, by the nation, to
colored persons, when they were made citizens of the State in which they reside? Did the constitutional
grant of State citizenship to that race, of its own force, invest them with any rights, privileges and
immunities whatever? That they became entitled, upon the adoption of the Fourteenth Amendment, “to all
privileges and immunities of citizens in the several States,” within the meaning of section 2 of article 4 of
the Constitution, no one, I suppose, will for a moment question. What are the privileges and immunities to
which, by that clause of the Constitution, they became entitled? To this it may be answered, generally, upon
the authority of the adjudged cases, that they are those which are fundamental in citizenship in a free
republican government, such as are “common to the citizens in the latter States under their constitutions
and laws by virtue of their being citizens.” * * * *
But what was secured to colored citizens of the United States—as between them and their respective
States—by the national grant to them of State citizenship? With what rights, privileges, or immunities did
this grant invest them? There is one, if there be no other—exemption from race discrimination in respect
of any civil right belonging to citizens of the white race in the same State. That, surely, is their constitutional
privilege when within the jurisdiction of other States. And such must be their constitutional right, in their
own State, unless the recent amendments be splendid baubles, thrown out to delude those who deserved
fair and generous treatment at the hands of the nation. Citizenship in this country necessarily imports at
least equality of civil rights among citizens of every race in the same State. It is fundamental in American
citizenship that, in respect of such rights, there shall be no
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discrimination by the State, or its officers, or by individuals or corporations exercising public functions or
authority, against any citizen because of his race or previous condition of servitude. * * * *
Conclusion
‘In every material sense applicable to the practical enforcement of the Fourteenth Amendment, railroad
corporations, keepers of inns, and managers of places of public amusement are agents or instrumentalities
of the State, because they are charged with duties to the public, and are amenable, in respect of their duties
and functions, to governmental regulation. It seems to me that, within the principle settled in Ex parte
Virginia, a denial, by these instrumentalities of the State, to the citizen, because of his race, of that equality
of civil rights secured to him by law, is a denial by the State, within the meaning of the Fourteenth
Amendment. If it be not, then that race is left, in respect of the civil rights in question, practically at the
mercy of corporations and individuals wielding power under the States.
But the court says that Congress did not, in the act of 1866, assume, under the authority given by the
Thirteenth Amendment, to adjust what may be called the social rights of men and races in the community.
I agree that government has nothing to do with social, as distinguished from technically legal, rights of
individuals. No government ever has brought, or ever can bring, its people into social intercourse against
their wishes. Whether one person will permit or maintain social relations with another is a matter with
which government has no concern. I agree that if one citizen chooses not to hold social intercourse with
another, he is not and cannot be made amenable to the law for his conduct in that regard; for even upon
grounds of race, no legal right of a citizen is violated by the refusal of others to maintain merely social
relations with him. What I affirm is that no State, nor the officers of any State, nor any corporation or
individual wielding power under State authority for the public benefit or the public convenience, can,
consistently either with the freedom established by the fundamental law, or with that equality of civil rights
which now belongs to every citizen, discriminate against freemen or citizens, in those rights, because of
their race, or because they once labored under the disabilities of slavery imposed upon them as a race. The
rights which Congress, by the act of 1875, endeavored to secure and protect are legal, not social rights. The
right, for instance, of a colored citizen to use the accommodations of a public highway, upon the same terms
as are permitted to white citizens, is no more a social right than his right, under the law, to use the public
streets of a city or a town, or a turnpike road, or a public market, or a post office, or his right to sit in a
public building with others, of whatever race, for the purpose of hearing the political questions of the day
discussed. Scarcely a day passes without our seeing in this court-room citizens of the white and black races
sitting side by side, watching the progress of our business. It would never occur to any one that the presence
of a colored citizen in a court-house, or court-room, was an invasion of the social rights of white persons
who may frequent such places. And yet, such a suggestion would be quite as sound in law—I say it with
all respect—as is the suggestion that the claim of a colored citizen to use, upon the same terms as is
permitted to white citizens, the accommodations of public highways, or public inns, or places of public
amusement, established under the license of the law, is an invasion of the social rights of the white race.
* * * * My brethren say, that when a man has emerged from slavery, and by the aid of beneficent
legislation has shaken off the inseparable concomitants of that state, there must be some stage in the
progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of
the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which
other men’s rights are protected. It is, I submit, scarcely just to say that the colored race has been the special
favorite of the laws. The statute of 1875, now adjudged to be unconstitutional, is for the benefit of citizens
of every race and color. What the nation, through Congress, has sought to accomplish in reference to that
race, is—what had already been done in every State of the Union for the white race—to secure and protect
rights belonging to them as freemen and citizens; nothing more. It was not deemed enough “to help the
feeble up, but to support him after.” The one underlying purpose of congressional legislation has been to
enable the black race to take the rank of mere citizens. The difficulty has been to compel a recognition of
the legal right of the black race to take the rank of citizens, and to secure the enjoyment of privileges
belonging, under the law, to them as a component part of the people for whose welfare and happiness
government is ordained. At every step, in this direction, the nation has been confronted with class tyranny,
which a contemporary English historian says is, of all tyrannies, the most intolerable, “for it is ubiquitous
in its operation, and weighs, perhaps, most heavily on those whose obscurity or distance would withdraw
them from the notice of a single despot.” To-day, it is the colored race which is denied, by corporations and
individuals wielding public authority, rights fundamental in their freedom and citizenship. At some future
time, it may be that some other race will fall under the ban of race discrimination. If the constitutional
amendments be enforced, according to the intent with which, as I conceive, they were adopted, there cannot
be, in this republic, any class of human beings in practical subjection to another class, with power in the
latter to dole out to the former just such privileges as they may choose to grant. The supreme law of the
land has decreed that no authority shall be exercised in this country upon the basis of discrimination, in
respect of civil rights, against freemen and citizens because of their race, color, or previous condition of
servitude. To that decree—for the due enforcement of which, by appropriate legislation, Congress has been
invested with express power—every one must bow, whatever may have been, or whatever now are,
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Green, Emily. "Federalism and the Separation of Powers: A Historical Perspective." Presented at the
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