Back to the briarpatch: an argument in favor of constitutional meta-analysis in state action determinations.

• Author: Krotoszynski, Ronald J., Jr.

I was born and raised in the briar patch, Brer Fox! Born and raised in the briar patch.(1)

Brer Rabbit, after claiming repeatedly that he would prefer almost anything to being thrown into the briarpatch,(2) expressed glee once tossed there.(3) In fact, Brer Rabbit wanted to be in the briarpatch because, like most rabbits, he could navigate the briarpatch with relative ease: the briarpatch was home.

Over the course of a century, the Supreme Court has developed a great degree of familiarity with the state action doctrine, a doctrinal briar patch. Like Brer Rabbit, the Court has disclaimed repeatedly any interest in being there.(4) Writing for the Court only last term, Justice Scalia described the state action doctrine as "difficult terrain" and deftly avoided traversing it.(5) Justice Scalia's acknowledgment that state action doctrine is difficult terrain is not surprising; unlike Brer Rabbit, the Court has demonstrated a seeming inability to maneuver in the underbrush once finding itself there.(6) The state action doctrine, with its intricate mantras and talismanic phrases, has been and remains a dark thicket of constitutional law.

Since at least 1879, the Court has consistently held that the guarantees of both the Fourteenth Amendment and the Bill of Rights protect citizens only from acts committed by the government, and has required plaintiffs asserting claims under these provisions to establish the presence of "state action" before undertaking an analysis of the merits of a particular claim.(7) These amendments "erect[] no shield against merely private conduct, however discriminatory or wrongful."(8)

The state action inquiry is not particularly difficult when an agency or officer of the government has allegedly violated the constitutional rights of an individual.(9) The analytical exercise can become decidedly squirrelly, however, when the actions of an ostensibly "private" entity violate constitutional norms, and the entity enjoys some kind of special relationship or connection to the federal or a state government.(10)

To be sure, the law generally - and constitutional law in particular - is often ambiguous, and judges are required to exercise discretion when deciding almost every matter that comes before them.(11) Thus, judges - like rabbits - should be reasonably comfortable in the briarpatch because their jobs routinely require them to be there. Nevertheless, the state action doctrine has proven especially difficult for the federal judiciary to administer.

In an attempt to bring order to the subject, the Supreme Court has developed three distinct tests for determining whether the relationship between a private entity and the government is sufficient to justify attributing the private entity's behavior to the state.(12) These tests have proven difficult to apply in practice and arguably have done little to improve either the quality or consistency of state action determinations. Largely because of the difficulties associated with applying the tests, a number of academics have seriously questioned their value as analytical tools.(13)

In this article, I argue that the existing tests for establishing the presence of state action are helpful in framing the state action question, but, as applied by the federal courts, they have all too often frustrated meaningful inquiry into the true relationship between ostensibly private actors and the federal or a state government. Wholesale abandonment of the tests, however, win not resolve this problem. Instead, courts conducting state action analyses must go beyond the mechanical application of the traditional tests to determine if, in the totality of the circumstances, a particular private entity is a state actor.(14) Essentially, I advocate a constitutional "meta-analysis"(15) that would improve the accuracy and fairness of state action determinations.

Part I presents an overview of contemporary state action doctrine, with particular attention to the Supreme Court's recent decision in Lebron v. National Railroad Passenger Corporation.(16) Part II demonstrates the shortcomings - and absurdities - associated with the contemporary state action doctrine. In this Part, I argue that recent decisions of the lower federal courts reflect a failure in practice to honor the Supreme Court's admonition that its various verbal formulations of state action are but "different ways of characterizing [a] necessarily fact-bound inquiry."(17) Finally, Part III takes up the broader problem of cabining judicial discretion in the application of the state action doctrine. This Part presents an alternative approach to the contemporary state action analysis, an approach that is truer to the Supreme Court's repeated exhortation that "[o]nly by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be given its true significance."(18)

The federal courts' use of the various state action tests as formulaic shorthands that yield quick and easy answers represents an inappropriate application of the Supreme Court's state action precedents. Such jurisprudence has the unfortunate effect of insulating from constitutional scrutiny behavior fairly attributable to the state and is significantly underprotective of constitutional rights. The Court therefore should abandon sole reliance on these tests in favor of a more contextual approach. In short, the federal courts should return to the briarpatch, with the recognition that the state action doctrine, like Brer Rabbit, was "bred and born there."

1. A Brief Historical Review of the State Action

   Doctrine

   The Fourteenth Amendment provides that "[n]o State shall ... 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."(19) Since at least 1879, the Supreme Court has interpreted the "[n]o State shall" language of this clause to limit the application of the clause to acts "fairly attributable to the State."(20) Moreover, the Court has also applied the state action requirement to cases raising constitutional challenges to actions taken by the federal government.(21) Thus, in any given case, a plaintiff claiming the violation of a constitutional right or liberty must first establish that the alleged violation is somehow the handiwork of the government.

   In approaching the question of governmental responsibility for a deprivation of constitutional rights, the Supreme Court has established a two-track analysis. First, a reviewing court must determine whether the defendant "is ... [the] Government itself."(22) If the defendant is not the government, then the Court must determine whether the actions of the nongovernmental entity can "be fairly attribut[ed] to the State"(23) through a kind of contacts analysis. The nature and scope of both inquiries are described below.

   1. Governmental Entities

      When the defendant in a civil suit is a government agency or officer, the state action inquiry is attenuated: government agencies and officials must observe the constitutional rights and prerogatives of the citizenry.(24) Until very recently, however, it was unclear whether a governmental entity could avoid its constitutional obligations simply by incorporating a "private" company to execute a public policy. Because a corporate entity is ostensibly private or at least can be legislatively declared so,(25) lower federal courts had indicated a willingness to excuse government-owned corporations from observing constitutional rights.(26)

      In Lebron v. National Railroad Passenger Corporation,(27) the Supreme Court rejected this reasoning. The Court held that before examining the relationship of the federal government to Amtrak - in other words, engaging in a contacts analysis - it was first necessary to determine whether Amtrak, as a government-created, controlled, and maintained corporation, constituted a component of the federal government.(28)

      Lebron involved a First Amendment challenge to Amtrak's decision to refuse to permit an advertisement parodying the Coors family's alleged support of right-wing political groups in Central America. Lebron, an artist, purchased the right to display a work of art depicting Nicaraguan villagers being menaced by a silver Coors beer-can missile.(29) After Amtrak's sales agent accepted Lebron's purchase of advertising space to display the picture in New York City's Penn Station, Amtrak exercised its contractual authority with the agent to refuse the advertisement.(30) Lebron then sued, claiming that Amtrak's refusal to display his work violated his First Amendment rights. Applying the three state action tests and relying on prior circuit precedents, the Second Circuit found that Amtrak could not violate Lebron's speech rights because it was not a state actor.(31)

      On appeal from the Second Circuit, the Supreme Court recast the question presented for review. Rather than asking whether Amtrak, as a private entity, constituted a state actor, the majority instead inquired into whether Amtrak was really a "private" entity separate and distinct from the federal government.(32) The Court "conclude[d] that [Amtrak] is an agency or instrumentality of the United States for the purpose of individual rights guaranteed against the Government by the Constitution."(33)

      Writing for an 8-1 majority, Justice Scalia went on to observe that "[i]t surely cannot be that government, state or federal, is able to evade the most solemn obligations imposed in the Constitution by simply resorting to the corporate form."(34) Thus, if "the Government creates a corporation" in order to promote "governmental objectives" and retains effective control over the corporation, the corporation is a component of the government itself.(35)

      The Lebron decision effectively mandates a new first step in state action analysis. Rather than assuming the private character of an entity, plaintiffs would do well to first consider...