Lachlan Athanasiou * | 25.2 | Comment | Citation: Lachlan Athanasiou, Comment, Is the State Action Doctrine Our Law, 25 U. Pa. J. Const. L. 490 (2023).

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The state action doctrine grew out of a series of Supreme Court cases between 1875 and 1883—the collapse of reconstruction—challenging congresses power under Section 5 of the 14th Amendment to fight racial oppression in the South. Most famously, The Civil Rights Cases used the formal state action-private action divide invalidate the Civil Rights Act of 1875, which had outlawed racial discrimination in public accommodations and public transportation. The Court then built 150 years of state action jurisprudence on the shaky foundation of this formalist public-private divide. But despite being widely ridiculed for its incoherence, the doctrine persists.

In this paper, I argue that the doctrine has failed not because it is incoherent or has produced bad results—though it is and it has—but because the Court has been skipping a crucial interpretive question. Before asking “what entities count as the state?” it should ask the more general question “what entities are constrained by the constitution?” One possible answer to this latter question is “only state actors are,” but it is not the only possible answer.

Answering this question reveals that the Court’s attempt to draw a clean line between state and private action has been a mistake because that line is not required by the constitution. Rather, American constitutional law requires that the nature of the substantive violation committed by an entity (for example, racial discrimination), and the social circumstances in which that violation occurred (for example, a widespread pattern and history of racial discrimination) be relevant to determining whether that entity counts as restricted by the constitution.

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* J.D., Class of 2023, University of Pennsylvania Carey Law School.