The Public–Private Distinction: Insights for Public Administration from the State Action Doctrine

• Author: Deanna Malatesta,Julia L. Carboni
• Published date: 01 January 2015
• DOI: http://doi.org/10.1111/puar.12272
• Date: 01 January 2015

Deanna Malatesta is associate

professor of public affairs in the School of

Public and Environmental Affairs at Indiana

University–Purdue University Indianapolis.

Her research addresses contracting, public

management and governance, and public

policy.

E-mail: dmalates@iupui.edu

Julia L. Carboni is assistant professor

of public affairs in the School of Public and

Environmental Affairs at Indiana University–

Purdue University Indianapolis. Her research

focuses on governance, organizational

networks, and cross-sector collaboration.

E-mail: jcarboni@iupui.edu

The Public–Private Distinction: Insights for Public Administration from the State Action Doctrine 63

Public Administration Review,

Vol. 75, Iss. 1, pp. 63–74. © 2014 by

The American Society for Public Administration.

DOI: 10.1111/puar.12272.

Deanna Malatesta

Julia L. Carboni

Indiana University–Purdue University Indianapolis

The public–private distinction is an enduring

theme in public administration (PA). While

scholars debate the concept for their purposes,

so do the courts, which must distinguish private

actors from state actors to rule on constitutional

claims. Specif‌i cally, the Fourteenth Amendment to

the U.S. Constitution prohibits government from

depriving persons of life, liberty, or property without

due process. Because due process protections only

apply to the coercive force of the state, courts must

decide when conduct is attributable to government

and not to a private entity.  is is the essence of the

legal principle known as the state action doctrine

(42 U.S.C. § 1983, 2000).

We compare public–private distinctions discussed by

PA scholars to the dichotomy applied by the judiciary.

In revealing similarities and dif‌f erences in the two

domains, we add to the body of research attempting

to capture the complexities of the public–private dis-

tinction.  ere are several steps to our application. We

survey the public administration literature, law review

articles, and case law to summarize and compare the

most frequently noted characteristics that dif‌f erenti-

ate “public” from “private” as used in the dif‌f erent

domains. We code the text of seminal court cases and

use qualitative comparative analysis (QCA) to uncover

necessary and/or suf‌f‌i cient factors for f‌i nding state

action. We derive a minimum and maximum def‌i ni-

tion (ideal type) of “public” as used in the social sci-

ences and the judiciary. We conclude with suggestions

for applying our f‌i ndings to the outsourcing of public

services with the aim of preserving public norms and

constitutional protections when designing contracts.

The Literature

Do public and private organizations dif‌f er in any

meaningful way? Social scientists, including scholars of

public administration and management, have grap-

pled with the question for decades (see, e.g., Bozeman

1987; Moulton 2009; Perry and Rainey 1988; Rainey,

Backof‌f , and Levine 1976).  e inquiry has important

implications for those who debate the limits of privatiza-

tion and outsourcing as well as for understanding what

makes some organizations more ef‌f ective than others.

Scholars take varied positions on this issue: some down-

play that there is any distinction at all, while others

emphasize the attributes that dif‌f erentiate public organi-

zations from private organizations. A third group, which

we call the “reformers,” have taken both positions.

Reformers are on record claiming the virtues of the

market, yet they have also contributed to the perception

 e Public–Private Distinction: Insights for Public

Administration from the State Action Doctrine

Abstract: Public administration scholars continue to grapple with how and why public organizations dif‌f er from

private organizations.  e judiciary deals with similar questions in ruling on constitutional claims that apply

exclusively to state actors.  e authors consider similarities and dif‌f erences between scholarly and judicial approaches,

adding to the body of research attempting to capture the complexities of the public–private distinction.  e application

in this article includes the coding of seminal court decisions and qualitative comparative analysis (QCA) to f‌i nd

combinations of causal conditions that lead to state action rulings.  e specif‌i cs revealed through QCA provide

valuable lessons for extending public norms and preserving constitutional protections when outsourcing public services.

Practitioner Points

• Public managers continue to grapple with distinguishing “public” from “private.” Meanwhile the courts

apply the State Action Doctrine to distinguish state actors from private actors in order to determine the

boundaries for constitutional protections.

• Public administrators should be knowledgable about the State Action Doctrine; its application has critical

implications for contracting and the extension of constitutional protections.

• When public managers outsource services to private actors they can craft contract language to guarantee consti-

tutional protections, thereby f‌i lling any constitutional voids that may result from def‌i ning an actor as “private.”