Also known as: fair attribution test · state action
Written by attorneys · grounded in primary & secondary sources — see below
A standard for determining whether private conduct qualifies as state action under the Fourteenth Amendment when a private entity performs a public function traditionally and exclusively reserved to the state.
Frank Fisher sued Frontier Capital in state court over a disputed contract. During jury selection the company's lawyer used peremptory challenges to remove every Black member of the venire. The trial judge enforced the strikes without objection. Because jury selection is a traditional public function carried out with active court participation, the racially discriminatory strikes are fairly attributable to the state.
Fatima Flores held a beneficial interest in a trust administered by Central Hanover Bank. The bank published notice of an accounting proceeding in a newspaper rather than mailing individual letters to known beneficiaries. A state court later approved the accounting. The bank's choice of notice method, made under judicial supervision and pursuant to state procedural rules, is fairly attributable to the state.
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Forrest Falconer owned waterfront property that the City of New London condemned and transferred to a private developer under an economic-development plan. City officials selected the parcels and filed the eminent-domain actions. The city's decision to seize and convey the land through its own condemnation power is fairly attributable to the state.
Metropolitan Housing Development Corp. sought a zoning variance to build integrated housing in the Village of Arlington Heights. Village officials denied the application after public hearings revealed racial motivations. The village's formal denial, issued through its zoning ordinance and enforced by local police, is fairly attributable to the state.
Freya Freeman's children attended a public school whose board required daily recitation of the Pledge of Allegiance. Teachers disciplined students who refused on religious grounds. The board's policy, adopted and enforced by public employees under state compulsory-education statutes, is fairly attributable to the state.
Fumiko Fujimoto was charged in state court with a serious misdemeanor carrying a possible two-year sentence. The trial judge denied her request for a jury. The court's refusal, made pursuant to a state statute limiting jury trials to felonies, is fairly attributable to the state.
A symbiotic relationship arises when the state derives ongoing financial benefits, such as below-market rent or profit sharing, from the private tenant's operations. That interdependence makes the tenant's discriminatory conduct fairly attributable to the state under the Equal Protection Clause.
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Exclusive delegation of a core judicial function combined with intensive state oversight and pre-approval of protocols can supply the direct involvement needed to make the firm's actions fairly attributable to the state.
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Jury selection is a traditional public function performed inside a courtroom with active judicial supervision and enforcement. Those features render the private litigant's discriminatory strikes fairly attributable to the state.
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…This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to…