Also known as:traditional public functions · public function test · traditional governmental function
Written by attorneys · grounded in primary & secondary sources — see below
A category of governmental activity that when performed by a private party renders the conduct fairly attributable to the state for constitutional purposes. The category is limited to functions traditionally and exclusively reserved to the government such as jury selection.
Sources & Authorities
How it applies
Common Examples
6
Civil Jury Strikes by Oil Company
Tyler Taylor and Talia Torres sued Titan Industries in state court after a pipeline leak damaged their property. Titan's counsel used every peremptory challenge to remove all remaining jurors of one race. The judge oversaw voir dire and excused each juror. The plaintiffs objected that the strikes violated equal protection. Because jury selection qualifies as a traditional public function, the company's racially discriminatory use of peremptories constituted state action and the objection had to be sustained.
Transit Authority Overtime Dispute
Theodore Tucker sued Tidal Energy after the company used peremptory strikes to remove all jurors of one race during a wage dispute tried in state court. The judge supervised voir dire. Because jury selection is a traditional public function performed with court participation, the private company's discriminatory strikes counted as state action and were disallowed.
Select any source to read its text and confirm it supports the definition.
Cases
Study Supplements
Garcia v. San Antonio Metropolitan Transit Authority469 U.S. 528 (1985)
Athletic Association Rulemaking
Tristan Thompson coached at a private high school whose league rules were challenged after a player was excluded. The league's counsel exercised peremptory challenges during the ensuing state-court trial to remove all jurors of one race. The judge oversaw voir dire. Because jury selection is a traditional public function, the league's discriminatory strikes constituted state action.
Brentwood Academy v. Tennessee Secondary School Athletic Association531 U.S. 288, 295-296 (2001)
Private Violence and Commerce Power
Tanya Tang sued Tundra Resources after its security personnel used peremptory challenges to remove all jurors of one race in a state-court civil-rights trial. The judge conducted voir dire. Because jury selection is a traditional public function performed under court supervision, the company's discriminatory strikes amounted to state action.
United States v. Morrison529 U.S. 598 (2000)
Mining Regulation Challenge
Trevor Tate sued a mining company whose counsel used peremptory challenges to remove all jurors of one race during a state-court trial over reclamation rules. The judge supervised voir dire and excused each juror. Because jury selection is a traditional public function, the company's racially discriminatory strikes constituted state action.
Hodel v. Virginia Surface Mining & Reclamation Association, Inc.452 U.S. 264, 310-312 (1981)
Criminal Defendant Jury Strikes
Talia Torres was prosecuted by the state. Her codefendant, a private party, used peremptory challenges to remove all jurors of one race. The prosecutor objected. Because jury selection is a traditional public function performed with court participation, the private defendant's racially discriminatory strikes counted as state action and were disallowed.
Georgia v. McCollum505 U.S. 42 (1992)
Common questions
Frequently Asked
4
When does a private party's conduct become state action under the traditional public function test?+
A private party becomes a state actor when it performs a function traditionally and exclusively reserved to the government. Jury selection satisfies the test because it occurs in a courtroom under judicial supervision and carries the force of law.
Supporting sources
Does the traditional public function test apply only to jury selection?+
No. The test can reach other activities such as operating a public access channel or managing certain utilities, but only when the function has been exclusively governmental. Hosting speech or providing electricity has been held not to qualify.
Supporting sources
When is a private litigant's use of peremptory challenges treated as state action?+
A private litigant's use of peremptory challenges is state action when jury selection is recognized as a traditional public function performed with significant court participation. Racially discriminatory strikes then violate equal protection.
Supporting sources
Can a private litigant in a civil case use race-based peremptory challenges?+
No. Because jury selection is a traditional public function, the private litigant's strikes are state action and equal protection forbids their racially discriminatory exercise.
Supporting sources
529 U.S. 598 (2000)Constitutional Law
…repudiated in Garcia v. San Antonio Metropolitan Transit Authority , 469 U. S. 528 (1985), which held that the concept of "traditional governmental function" (as an element of the immunity doctrine under Hodel ) was incoherent, there being no explanation that would make sense of the multifarious decisions placing some functions on one side of…