Cardozo Law Review, Vol. 26, No. 1 (November 2004), pp. 99-125


While most section 1983 suits are brought against local governments and officials, an increasing number of plaintiffs target private persons and businesses who have collaborated with government in one way or another. In such cases, plaintiffs claim that private entities have acted "under color of state law" in violation of the plaintiffs' rights. They must establish that the defendants are nonetheless "state actors" in order to prevail on the constitutional claims they raise. The broad range of cases includes, among others, efforts to obtain relief against creditors who use self-help remedies, litigation directed at persons who have cooperated with state officers to the plaintiffs' detriment, and suits seeking recovery from persons and firms to whom the State has contracted out some function.

Taking the Supreme Court's recent decision in Brentwood Academy v. Tennessee Secondary School Athletic Association as a starting point, this Article examines the criteria the Court uses to determine whether sate action is present in a given case. Brentwood Academy held that "pervasive entwinement" between public secondary schools and the Tennessee Secondary School Athletic Association (TSSAA) made the TSSAA a state actor when it imposed sanctions on Brentwood, a private school, for athletic recruiting violations. My concern is not with the outcome of the case, but with the Court's analytical model. I argue that the current approach pays too much attention to a search for various "indicia of state action" in the events giving rise to the litigation, while excluding consideration of the substantive context in which the case arises. Some of the Court's reasoning suggests that the point of the inquiry is to determine whether state action is or is not present in the case. The constitutional values at stake in state action cases would be better served by asking whether, given the substantive context as well as the scope of the State's role, the constitutional claim asserted by the section 1983 plaintiff ought to extend to the case at hand.

Part I describes the current doctrine and Part II contrasts the modern approach with the earlier approach to state action, in which the Supreme Court gave significant weight to substantive context. The comparison reveals that the modern view seems to conceive of state action as a thing that may or may not be present in a given case. Part III demonstrates that state action is more usefully conceived as a vehicle for coping with conflicting constitutional values. Using a number of illustrative cases, Part IV shows that readmitting substance into the state action lexicon would markedly improve the doctrine, by providing the analytical tools needed to more sensibly resolve those conflicts, and by generating more persuasive rationales for the outcomes of cases. There is, however, a danger that substantive arguments, once admitted into state action analysis, will dominate the doctrine to the exclusion of state action policies. Part V argues that the Court could successfully avert that risk by retaining one important feature of most modern cases: insofar as possible, it should state the doctrine in the form of rules, rejecting tests that rely on close review of the facts. Under th emodel advocated here, the Brentwood Academy majority went wrong in two distinct ways. It paid no attention to substance, and it spurned rule making in favor of taking account of "range of circumstances," and "a host of facts."