• Equal Protection: The Government Action Requirement

    This article will address the types of governmental action that can trigger a claim under the equal protection clause. The mandates of the 14th Amendment, on their own, apply only to federal and state governments. Congress has codified the principles of the equal protection clause to apply against private actors, but to bring a claim under the 14th Amendment directly requires governmental action. In many instances it is easy to discern when it is the government itself acting– the conduct of the police, or agency action, for instance. Sometimes however, the government can act indirectly; an equal protection claim may be brought under these circumstances as well. There are four rough categories of indirect governmental action: private conduct mimicking traditional governmental functions, governmental action entwined with private action, judicial approval of private action, and legislative or administrative approval of private actions.

    Equal protection claims may be brought against private actors when they are fulfilling a role that is traditionally governmental. When the government delegates state power to a private party, or a private party assumes state-like powers, it can be considered government action. An example of delegated power would be a state delegating the operations of its prison system to a private business. The actions of that private business, if related to operating the prison, can be considered governmental action. An example of an assumption of state-like powers might be a “company town.” If a private actor owns land that is treated like public property, and it acts like a government in the operation of that land (for instance, owning the streets of a private community, providing private security, trash removal, schools, hospitals, etc…), then its actions can be considered to be governmental. If the private party looks like the state, then it is the state.

    When private conduct becomes entwined or involved with government conduct, the actions of the private party may be government action. If there is a symbiotic relationship between the public and private actors and the private action is conducted as an essential part of a public plan then it is government action. An example of such a relationship would be a private party leasing commercial real estate from a municipal building, with the rent from the lease being an important source of funding for the operation of the municipal building– especially if the rent is tied to the profits of from the business.

    The judicial system is able to enforce private rights and duties; judicial enforcement of discriminatory private conduct is tantamount to governmental endorsement of such conduct. Thus the courts are unwilling to enforce agreements that offend the equal protection clause because it would be an illegal deprivation of rights at the hands of the government. Private parties are free to enter into such agreements—absent other laws to the contrary—but the court will not cause the state to enforce such agreements. For instance, let’s say A and B have a contract to not sell a particular property to race X. If B sells that property to C, who is of race X, the court would not enforce an action for breach of contract by A. This is because the court’s involvement would be an affirmative action by the state to deny C’s right to contract based purely on his race.

    Lawmakers may not work around the bar of judicial enforcement by legislation or rulemaking. Legislation or rulemaking may not make private discrimination legal. Like the case with judicial enforcement of private discriminatory agreements, such a law would be tantamount to deprivation of equal protection by endorsement. Laws allowing discriminatory contracts, like the contract example above, are offensive to the 14th Amendment and are unconstitutional.

    While the 14th Amendment itself applies only applies to governments, its principles have been encoded under the Civil Rights Act of 1964. That act allows for private citizens to bring claims against, amongst others, employers who discriminate against a member of a protected class because of their membership to that class. Protected classes include race, religion, gender, and national origin.

    Government action, or similar acts in violation of the Civil Rights Act, are not the only barriers to bringing an equal protection claim. A plaintiff must have suffered an individual injury. The individual injury requirement is, in part, related to standing doctrine. A general allegation of discrimination is insufficient, the plaintiff must have individually been discriminated against. Another important barrier is what kind of relief is sought. In many instances the only relief available against the government is injunctive relief, i.e. compelling a government actor to conduct themselves in a particular manner. For instance, if a government employer has discriminatory hiring practices then injunctive relief would likely require putting a stop to those practices. This is opposed to money damages, where the government would be forced to provide pecuniary relief to the aggrieved party. It is generally against public policy to allow citizens to strike directly from state coffers, though there are exceptions; this is, however, beyond the scope of this article.
  • Ask a Legal Question