- Which of the following facts, if true, would most strongly support a finding that the utility's termination was state action?
Answer: A state utility commissioner reviewed the customer's account and directed the utility to disconnect service because the bill was unpaid.
Whenever you see a due process claim against a private company, the threshold question is whether the company's conduct counts as "state action." The Fourteenth Amendment protects only against government deprivation, so you must look for the state's involvement in the specific act—not just in the general industry.
Here, the strongest state action is the fact that a state utility commissioner reviewed the customer's account and directed the utility to disconnect service. That is direct, individualized government involvement in the deprivation: the state did not merely allow termination; it ordered it. When a state official specifically steers the coercive act, the utility is effectively acting as the state's agent.
The exclusive franchise fact is a tempting trap, but a state-created monopoly alone does not make every utility decision governmental. Similarly, commission rules that permit termination for unpaid bills are permissive, not compulsory—the utility still makes the choice, so no state action arises. And the commission's approval of the utility's procedures as fair and reasonable is ordinary regulation, not entanglement in this particular termination. All three show state presence in the background, but none show the state directing the challenged conduct.
For your study strategy: distinguish "state regulates the industry" from "state commands the specific act." Look for the words "directed," "ordered," or "required" to find the government hand. On the bar exam, a fact pattern with a regulator approving or permitting behavior is usually not enough; you want a state official making the actual decision to deprive.
- Which of the following is the most accurate statement about whether CMI's refusal is state action?
Answer: CMI is not a state actor because operating a public access station is not a traditional, exclusive public function, and the city's involvement does not control CMI's editorial decision.
When you see a state action question, your first instinct should be to apply the public function test (is the function traditionally and exclusively performed by the government?) and the entanglement test (does the government control the specific decision or the entity's operations?). Here, the city owns equipment, funds CMI, and regulates it, but the key fact is that CMI's board is chosen by its own members, not the city, meaning the city does not control the editorial decision.
The correct answer correctly recognizes that operating a public access station is not a traditional, exclusive public function—unlike running a prison or elections. Even though the city delegated operation to CMI, that doesn't automatically make CMI a state actor. The Supreme Court's Manhattan Community Access Corp. v. Halleck (2019) directly supports this: a private nonprofit operating a public access channel is not a state actor absent government control over the specific decision.
Now, the wrong answers. The first claims CMI is a state actor because the city delegated a public forum, and public forums are traditionally operated by the government. That's a misconception—public forums are places like streets and parks, not a function exclusively governmental. The second claims the city's ownership, funding, and regulation are enough to create state action. This is the "entanglement" trap—mere funding and regulation aren't enough; the government must control the specific decision, which it doesn't. The third claims the city's involvement is irrelevant. That's an overstatement—it's a factor to consider, but just not sufficient here.
Study tip: Always ask who made the specific decision. If a private board made the call, and the function isn't exclusively governmental (like running a prison or election), it's likely not state action. Remember Halleck for public access cases.
- Which of the following is the best basis for concluding that the committee's exclusion is state action?
Answer: The committee controls access to the general election ballot, a function traditionally reserved exclusively to the state, and state law gives legal effect to the committee's choice.
This question tests the state action doctrine under the Fourteenth Amendment: private discrimination violates equal protection only when the state is sufficiently involved. When you see a private group excluding voters, ask whether the group performed a function traditionally reserved exclusively to the state, or whether the state authorized or encouraged the discrimination.
Here, the committee's exclusion is state action because state law automatically places the committee's winner on the general election ballot and forbids anyone else from appearing under that party's label. That gives the committee control over access to the ballot—a power classically reserved to the state. This is the same logic as the "white primary" cases, where a private party's nomination process became state action because it effectively selected the public election outcome.
The choice saying the committee controls access to the general election ballot, a function traditionally reserved exclusively to the state, and that state law gives legal effect to its choice is therefore the best basis.
The claim that political parties are state actors whenever they determine nominees is overbroad; parties can act privately in many settings, and only their state-integrated or public-function conduct is attributable to the state. The "substantial influence" choice also misses the mark: private influence over elections is not enough without a delegation of governmental power. Finally, the "state inaction" choice fails because mere failure to regulate private discrimination is generally not state action; here the state did far more—it endorsed and enforced the committee's choice.
On exam day, spot state action by looking for state compulsion, state delegation, or a public function. Private prejudice plus state enforcement equals constitutional violation.
- Which of the following actions is most clearly state action for purposes of the Fourteenth Amendment?
Answer: The state court's issuance of the injunction enforcing the covenant.
Whenever you see a Fourteenth Amendment question, your first move is to ask: who is acting? The Equal Protection Clause restricts only state action—private discrimination, no matter how offensive, is generally outside its reach. Here, the critical distinction is between the covenant itself and the government's role in enforcing it.
The state court's issuance of the injunction enforcing the covenant is the clearest state action. When a court orders someone not to sell based on race, that is the state itself using its power to effectuate discrimination. This is the classic lesson of Shelley v. Kraemer: judicial enforcement of a racially restrictive covenant violates the Equal Protection Clause, even though the covenant is a private agreement.
Now consider each private actor. The association's adoption of the restrictive covenant in the declaration is private—homeowners and their association may hold discriminatory views and make private agreements. The homeowner's listing of the house for sale is also private conduct, and offering to sell to all buyers is not discriminatory at all. Finally, the title company's policy of refusing to close any sale that would violate the covenant is a private company's business decision, not state action. The trap is assuming that because the covenant was written into a declaration, it is somehow governmental—but a private document only becomes state action when a court or other government official actively enforces it.
Study tip: when you see private discrimination, scan for a government actor—especially a judge issuing an order. If a court is enforcing a discriminatory private agreement, that enforcement is the state action.
- Which of the following facts is most important in establishing that the association's actions are state action?
Answer: State law requires public schools to join the association, and public school officials control its governing board.
Whenever you see a private entity sued under the Fourteenth Amendment, the threshold issue is state action: a private actor can be held to constitutional standards only if its conduct is fairly attributable to the state. Here the strongest evidence is that state law compels every public high school to join the association, and public school officials control its governing board. That combination shows the state has both forced the association into a public role and retained control over how that role is exercised. When state power is so entwined with a private group, enforcing its eligibility rule qualifies as state action.
The fact that the association is a nonprofit with public and private members is not enough; many voluntary organizations have mixed memberships. Using public school buildings and receiving substantial public support is suggestive, but support alone, without coercion or control, generally will not turn every action into state action. Finally, the fact that the eligibility rules are binding on student athletes simply proves the rule affects the plaintiff; it does not prove the rule's source is governmental.
On bar questions, look for "state compulsion plus state control" as the key to state action. A private entity's actions trigger constitutional scrutiny only when the state has compelled, controlled, or deeply entwined itself with the entity.
- If the resident sues the corporation under 42 U.S.C. § 1983, claiming that the removal violated her First Amendment rights, which of the following is the strongest argument that the corporation's conduct is state action?
Answer: The corporation performs the full range of municipal functions over a residential community, making its operation of the community the functional equivalent of a town government.
When you see a §1983 claim, the threshold question is always whether the defendant's conduct constitutes "state action." A private actor's conduct can be attributable to the state under the public function doctrine when the private party exercises powers traditionally and exclusively reserved to the government. Here, the corporation's control over the entire community—streets, sewer, park, security, and rule enforcement—makes it the functional equivalent of a town. That is the strongest argument because, under Marsh v. Alabama, a private company that operates a full-fledged town is held to the same constitutional standards as a municipal government. The resident was on a public sidewalk, which is a traditional public forum, and the corporation's removal was effectively censorship by the town's operator.
The second choice—the security patrol's law enforcement role—is a tempting but incomplete trap. Police services are a traditional exclusive government function, but the patrol here merely enforces the corporation's rules; the state action arises from the totality of municipal functions, not just security. The third choice confuses forum analysis with state action: public forum status does not make a private owner a state actor; you need the public function test first. The fourth choice misreads the law—mere ownership or permission from the state does not constitute delegation of governing authority; there must be an affirmative grant of power, which is not present here. Remember the test: does the private entity exercise powers that are "traditionally and exclusively" governmental? A single function may not suffice, but a full suite of municipal services—the "company town"—does. On the exam, look for a private entity running an entire community; that is your cue for state action under Marsh.
