United States Constitution

Naturally, there are exceptions to this rule. For example, the 13th Amendment outlaws slavery from existing entirely – either by the hands of public entities or private individuals. Certain clauses in the Constitution are also sometimes broadly interpreted to be able to affect private individuals in certain circumstances (see the Commerce Clause).

However, much of the analysis regarding regulations that may only affect government actors surrounds the issue of what a government actor actually is. Much of the time, the lines between government action and private action are blurred. When it is unclear as to which side of the line an entity falls on, courts may consider it to be a government actor, and thus trigger the particular constitutional provision in question.

This analysis of whether some action was private or public usually takes the form of a so-called totality of the circumstances test. This label only means that the various factors that make up the test are not to be considered as all completely mandatory – each one has weight. The question is whether, on balance, the factors weigh toward one side or the other. The private/public actor totality of the circumstances test often asks the following questions: Does a government entity have coercive power or control over the private actor doing the action in question? Is a government entity significantly encouraging the activity of the private actor? Is there some nexus between the government entity and the private actor – a symbiotic relationship, some interdependency, or some joint action? Is the private actor’s activity a traditional and exclusive public function?

If the weight of the answers to these questions lends to the conclusion that the action is actually public, a court will then apply the particular constitutional provision or guarantee that is at issue as if the action were being done by an unquestionably government entity.

In Shelley v. Kramer (1948), the Court examined a private restrictive covenant. Restrictive covenants are agreements in real estate contracts that prevent one or both parties from doing something related to the land. Here, there was a restrictive covenant on a home that barred African Americans from being owners. Conceptually, this was a private covenant – an agreement between two private individuals who had originally put the covenant in place and now, a private seller and a private buyer. There were no governmental parties to either the original contract or the current sale in question. However, the Court still held that the 14th Amendment could apply. When such covenants are broken, it is the state – through its judicial system – that is asked to enforce them. It is courts that must step in to backup whatever has been written in the admittedly private agreement. So while the writing of such a racist restrictive covenant may not be constitutionally prohibited, the enforcement of such a covenant is prohibited. Practically, this renders all such covenants null and void.

In Moose Lodge No. 107 v. Irvis (1972), the Court examined a private lodge’s policy of denying membership to non-white applicants. An African American had sued under Equal Protection Clause, arguing that the state’s affording of a liquor license converted the lodge into a state actor. The Court, however, rejected this argument. The connection between the state and the lodge was simply insufficient.

In Rendell-Baker v. Kohn (1982), the Court examined a school’s firing of certain employees after they spoke out against school policy. The former staff-members argued that their 1st Amendment rights had been violated. This private school happened to have been largely funded by the state through the government paying for special needs services that the public schools were not equipped to provide. However, the Court held that the state was akin to a private contractor. This was not like in Norwood (see above), where the school was subsidized. It may be worth noting, though, that a vocal dissent disagreed, holding that there was a close enough connection between the government and this private school to consider the firing to have been government action.