Also known as:under color of state law · color of state law · under color of law · color of law · 42 USC 1983 · section 1983 · state action
Written by attorneys · grounded in primary & secondary sources — see below
Conduct by a private party that is fairly attributable to the state. Attribution occurs when the party performs a traditional public function with significant state participation or when the state compels, encourages, or creates a symbiotic relationship with the private conduct.
Sources & Authorities
How it applies
Common Examples
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Peremptory Challenges in Civil Trial
Delta Capital, a private investment firm, faced a racial discrimination suit brought by Naomi in state court. During jury selection supervised by the judge, Delta Capital's counsel used peremptory strikes to remove every Black member of the venire. The court enforced the strikes. Because jury selection is a public function performed with active judicial participation, Delta Capital's racially discriminatory use of the challenges constituted conduct under color of state law and violated equal protection.
Company Town Operation
A private corporation owned and operated all municipal functions of a town, including streets, sidewalks, and a post office. Residents sought to distribute religious literature on the sidewalks. Because the corporation performed the traditional public function of operating a municipality with the state's acquiescence, its conduct constituted action under color of state law subject to First Amendment limits.
Select any source to read its text and confirm it supports the definition.
Cases
Statutes
Model Codes
Casebooks
Private Trust Park Administration
A private trust operated a park that had been maintained with public officials and served as a public facility. The trust restricted access to white persons only. Because the park performed a public function with ongoing state involvement, the discriminatory policy constituted conduct under color of state law and violated equal protection.
Private Political Organization Primaries
A private political group conducted preprimary elections that effectively selected the nominees for public office. The group excluded Black voters from participation. Because the organization performed an exclusive public function with state acquiescence, its discriminatory practices constituted conduct under color of state law subject to equal protection.
State Ban on Assisted Suicide
A group of physicians challenged a state statute criminalizing assisted suicide. They argued the ban violated the liberty interests of terminally ill patients. The statute was enacted and enforced by state officials. The prohibition therefore operated under color of state law and was subject to substantive due process review.
Washington v. Glucksberg521 U.S. 702 (1997)
Compulsory Flag Salute in Public Schools
A state board of education adopted a resolution requiring all public school students to salute the flag and recite the Pledge of Allegiance. Students who refused faced expulsion. The board's policy was issued and enforced by state officials. The compulsion therefore occurred under color of state law and implicated First Amendment protections.
West Virginia State Board of Education v. Barnette319 U.S. 624, 638 (1943)
Common questions
Frequently Asked
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When does a private party's conduct qualify as action under color of state law?+
Private conduct qualifies when the party performs a traditional public function with significant state participation or when the state creates a symbiotic relationship that makes the private action fairly attributable to the state. Jury selection in civil trials and operation of a company town are classic examples.
Supporting sources
Does a public defender act under color of state law when representing an indigent defendant?+
No. A public defender's representation of an indigent client is not state action even though the defender is paid by the state. The defender's professional judgment and conduct remain independent of state control.
Supporting sources
Can a private litigant be barred from using peremptory challenges in a racially discriminatory manner?+
Yes. Because jury selection is a traditional public function performed with active court participation, a private litigant's racially discriminatory use of peremptory strikes constitutes state action and violates equal protection.
Supporting sources
What is the difference between state action and action under color of state law?+
The two phrases are functionally interchangeable in constitutional litigation. Both describe conduct fairly attributable to the state that triggers constitutional constraints and potential liability under statutes such as 42 U.S.C. § 1983.
Supporting sources
410 U.S. 113 (1973)Constitutional Law
…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…