How Does Private Conduct Become State Action ?
"State action may be found if, though only if, there is such a 'close nexus between the State and the challenged action' that seemingly private behavior 'may be fairly treated as that of the State itself.'" Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288, 121 S.Ct. 924, 930, 148 L. Ed. 2d 807 (2001) (citing Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L. Ed. 2d 477 (1974)).
"If a defendant's conduct satisfies the state-action requirement, it is action 'under color of state law' for 1983 purposes." Jackson, 419 U.S. at 351 n.2 (citing Lugar, 457 U.S. at 935, 102 S.Ct. at 2752).
Several paradigms have been articulated to show that this nexus exists, including:
(1) the "public function" test, see Rendell-Baker v. Kohn, 457 U.S. 830, 842, 102 S.Ct. 2764, 2772, 73 L. Ed. 2d 418 (1982) (where a private actor is performing activities or services which traditionally have been the exclusive prerogative of the state);
(2) the "close nexus" test, see Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L. Ed. 2d 477 (1974) (where the state can be deemed responsible for the specific conduct of the private actor).
(3) the "symbiotic relationship" test, see Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 81 S.Ct. 856, 862, 6 L. Ed. 2d 45 (1961) (where interdependence between the state and the private actor is such that they were joint participants in the activity).
"What is fairly attributable is a matter of normative judgment, and the criteria lack rigid simplicity." Brentwood Academy, 531 U.S. at 121 S.Ct. at 930.
Continuing, the Court observed that, "From the range of circumstances that could point toward the State behind an individual face, no one fact can function as a necessary condition across the board for finding state action; nor is any set of circumstances absolutely sufficient, for there may be some countervailing reason against attributing activity to the government." Id.
In Brentwood Academy, the Court reviewed its previously having held that "a challenged activity may be state action when it results from the State's exercise of 'coercive power,' Blum, 457 U.S. at 1004, 102 S.Ct. 2777, when the State provides 'significant encouragement, either overt or covert,' ibid., or when a private actor operates as a 'willful participant in joint activity with the State or its agents,' Lugar, supra, at 941, 102 S.Ct. 2744.
The Court has treated a nominally private entity as a state actor when it is controlled by an 'agency of the State,' Pennsylvania v. Board of Directors of City Trusts of Philadelphia, 353 U.S. 230, 231, 77 S.Ct. 806, 1 L. Ed. 2d 660 (1957) (per curiam), when it has been delegated a public function by the State, cf., e.g., West v. Atkins, supra, at 56, 108 S.Ct. 2250; Edmonson v. Leesville Concrete Co, 500 U.S. 614, 627-28, 111 S.Ct. 2077, 114 L. Ed. 2d 660 (1991), when it is 'entwined with governmental policies' or when government is 'entwined in [its] management or control,' Evans v. Newton, 382 U.S. 296, 299, 301, 86 S.Ct. 486, 15 L. Ed. 2d 373 (1966)." Id.