2 State Action in the 20th Century

The basic structure of the state action doctrine—that aside from the Thirteenth Amendment’s (strictly interpreted) ban on slavery, rights protect you from state governments and not private actors—has largely remained intact since the Civil Rights Cases. The goals of the 1875 Civil Rights Act, for example, were not fulfilled until 1964, when Congress relied on the Interstate Commerce Clause, rather than the Fourteenth Amendment, to authorize its prohibitions against discrimination in public accommodations in Title II of the Civil Rights Act. Relying on the Commerce Clause allowed Congress to sidestep, rather than confront, the precedent created in the Civil Rights Cases.

That said, as the government has grown and taken on more functions there remain many scenarios where the distinction between state or public and private entities is unclear. For example:

• Does accepting significant amounts of government funding make an entity a “public” actor?
• Does a private detective’s coordination with the police transform them into an arm of the state?
• Or to engage the fantastical: Batman is a private vigilante who is summoned by Gotham’s chief of police when the city needs help. Is he a private actor, or does his coordination with Gotham PD make him a state actor?

The question of determining what transforms a private actor into a state actor in the eyes of the law thus remains an important issue.

In the mid-20^th century, a Supreme Court increasingly concerned with protecting the civil rights of racial minorities strategically relaxed the state action doctrine at times, often expanding the definition of what counted as “public” while doing so. One common path was to argue that a private entity’s actions served a public function, making them a state actor for legal purposes. For example, the Court held in Smith v. Allwright (1944) that Texas’s “whites-only” party primary was subject to the Fifteenth Amendment, despite the fact that the Texas Democratic Party was a private body. Because the party’s primary served a crucial public function in the electoral process, the Court held, it could be treated as a public actor within the context of electoral law.

Another path adopted elements of Justice Harlan’s vision of the state action doctrine, as seen in his Civil Rights Cases dissent. This change primarily came into play when state actors—such as courts or law enforcement—would enforce acts of private discrimination, such as upholding housing deeds that mandated whites-only sales or removing black people from discriminatory businesses. In such situations, the state’s judicial or executive enforcement of private claims or contracts constituted the necessary “action” that made it subject to the U.S. constitution.

This expansion had its limits, and indeed, in the more conservative era following the appointments of the Nixon and Reagan administrations, the Court would end the further expansion of state action.

One famous example came in DeShaney v. Winnebago (1989), in which a mother sued her county’s Department of Social Services after it failed to remove her son from his father’s violent custody, during which the boy was beaten so badly that he suffered permanent brain damage. State officials argued that the lawsuit was invalid because there was no state action: state officials did not harm the boy, and he was not in their custody when the assault took place. After losing at trial and on appeal, DeShaney appealed to the Supreme Court, which rejected her claim that the Department’s actions constituted state action and a denial of due process under the Fourteenth Amendment.

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DeShaney v. Winnebago County Department of Social Services

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489 U.S. 189 (1989)

Facts: Four-year-old Joshua DeShaney was beaten by his father and suffered severe and permanent brain damage. Despite considerable evidence of abuse and neglect, state and county officials did not have Joshua removed from his father’s custody. Following the beating that led to his brain damage, Joshua’s mother sued the county for violating Joshua’s Due Process rights by failing to remove him from his father’s home.

Question: Did the actions by the Winnebago County Department of Social Services—specifically the failure to remove Joshua DeShaney from his father’s home—constitute state action under the Fourteenth Amendment’s Due Process Clause?

Vote: No, 6-3

For the Court: Chief Justice Rehnquist

Dissenting opinion: Justice Brennan

Dissenting opinion: Justice Blackmun

CHIEF JUSTICE REHNQUIST, for the Court:

The Due Process Clause of the Fourteenth Amendment provides that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.” Petitioners contend that the State deprived Joshua of his liberty interest in “free[dom] from . . . unjustified intrusions on personal security,” by failing to provide him with adequate protection against his father’s violence. The claim is one invoking the substantive rather than the procedural component of the Due Process Clause; petitioners do not claim that the State denied Joshua protection without according him appropriate procedural safeguards, but that it was categorically obligated to protect him in these circumstances.

But nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without “due process of law,” but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means… Its purpose was to protect the people from the State, not to ensure that the State protected them from each other. The Framers were content to leave the extent of governmental obligation in the latter area to the democratic political processes.

Consistent with these principles, our cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual… If the Due Process Clause does not require the State to provide its citizens with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them. As a general matter, then, we conclude that a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.

Petitioners contend, however, that even if the Due Process Clause imposes no affirmative obligation on the State to provide the general public with adequate protective services, such a duty may arise out of certain “special relationships” created or assumed by the State with respect to particular individuals. Petitioners argue that such a “special relationship” existed here because the State knew that Joshua faced a special danger of abuse at his father’s hands, and specifically proclaimed, by word and by deed, its intention to protect him against that danger. Having actually undertaken to protect Joshua from this danger—which petitioners concede the State played no part in creating—the State acquired an affirmative “duty,” enforceable through the Due Process Clause, to do so in a reasonably competent fashion. Its failure to discharge that duty, so the argument goes, was an abuse of governmental power that so “shocks the conscience,” as to constitute a substantive due process violation.

We reject this argument. It is true that in certain limited circumstances the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals. In Estelle v. Gamble (1976), we recognized that the Eighth Amendment’s prohibition against cruel and unusual punishment … requires the State to provide adequate medical care to incarcerated prisoners. We reasoned that because the prisoner is unable “by reason of the deprivation of his liberty [to] care for himself,” it is only “’just’” that the State be required to care for him… we extended this analysis… holding that the substantive component of the Fourteenth Amendment’s Due Process Clause requires the State to provide involuntarily committed mental patients with such services as are necessary to ensure their “reasonable safety” from themselves and others…

But these cases afford petitioners no help. Taken together, they stand only for the proposition that when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being… The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. The affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf…

Petitioners concede that the harms Joshua suffered occurred not while he was in the State’s custody, but while he was in the custody of his natural father, who was in no sense a state actor. While the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them. That the State once took temporary custody of Joshua does not alter the analysis, for when it returned him to his father’s custody, it placed him in no worse position than that in which he would have been had it not acted at all; the State does not become the permanent guarantor of an individual’s safety by having once offered him shelter. Under these circumstances, the State had no constitutional duty to protect Joshua.

It may well be that, by voluntarily undertaking to protect Joshua against a danger it concededly played no part in creating, the State acquired a duty under state tort law to provide him with adequate protection against that danger… But the claim here is based on the Due Process Clause of the Fourteenth Amendment, which, as we have said many times, does not transform every tort committed by a state actor into a constitutional violation. A State may, through its courts and legislatures, impose such affirmative duties of care and protection upon its agents as it wishes. But not “all common-law duties owed by government actors were . . . constitutionalized by the Fourteenth Amendment.” Because, as explained above, the State had no constitutional duty to protect Joshua against his father’s violence, its failure to do so—though calamitous in hindsight simply does not constitute a violation of the Due Process Clause.

Judges and lawyers, like other humans, are moved by natural sympathy in a case like this to find a way for Joshua and his mother to receive adequate compensation for the grievous harm inflicted upon them. But before yielding to that impulse, it is well to remember once again that the harm was inflicted not by the State of Wisconsin, but by Joshua’s father. The most that can be said of the state functionaries in this case is that they stood by and did nothing when suspicious circumstances dictated a more active role for them. In defense of them it must also be said that had they moved too soon to take custody of the son away from the father, they would likely have been met with charges of improperly intruding into the parent-child relationship, charges based on the same Due Process Clause that forms the basis for the present charge of failure to provide adequate protection.

The people of Wisconsin may well prefer a system of liability which would place upon the State and its officials the responsibility for failure to act in situations such as the present one. They may create such a system, if they do not have it already, by changing the tort law of the State in accordance with the regular lawmaking process. But they should not have it thrust upon them by this Court’s expansion of the Due Process Clause of the Fourteenth Amendment.

JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join, dissenting.

“The most that can be said of the state functionaries in this case,” the Court today concludes, “is that they stood by and did nothing when suspicious circumstances dictated a more active role for them.” Because I believe that this description of respondents’ conduct tells only part of the story and that, accordingly, the Constitution itself “dictated a more active role” for respondents in the circumstances presented here, I cannot agree that respondents had no constitutional duty to help Joshua DeShaney.

It may well be, as the Court decides… that the Due Process Clause as construed by our prior cases creates no general right to basic governmental services. That, however, is not the question presented here… No one, in short, has asked the Court to proclaim that, as a general matter, the Constitution safeguards positive as well as negative liberties…

I would focus first on the action that Wisconsin has taken with respect to Joshua and children like him, rather than on the actions that the State failed to take… if a state cuts off private sources of aid and then refuses aid itself, it cannot wash its hands of the harm that results from its inaction…

Wisconsin has established a child-welfare system specifically designed to help children like Joshua. Wisconsin law places upon the local departments of social services such as respondent a duty to investigate reported instances of child abuse. While other governmental bodies and private persons are largely responsible for the reporting of possible cases of child abuse, Wisconsin law channels all such reports to the local departments of social services for evaluation and, if necessary, further action. Even when it is the sheriff’s office or police department that receives a report of suspected child abuse, that report is referred to local social services departments for action; the only exception to this occurs when the reporter fears for the child’s immediate safety. In this way, Wisconsin law invites indeed, directs—citizens and other governmental entities to depend on local departments of social services such as respondent to protect children from abuse.

The specific facts before us bear out this view of Wisconsin’s system of protecting children. Each time someone voiced a suspicion that Joshua was being abused, that information was relayed to the Department for investigation and possible action…

In these circumstances, a private citizen, or even a person working in a government agency other than DSS, would doubtless feel that her job was done as soon as she had reported her suspicions of child abuse to DSS. Through its child-welfare program, in other words, the State of Wisconsin has relieved ordinary citizens and governmental bodies other than the Department of any sense of obligation to do anything more than report their suspicions of child abuse to DSS. If DSS ignores or dismisses these suspicions, no one will step in to fill the gap. Wisconsin’s child-protection program thus effectively confined Joshua DeShaney within the walls of Randy DeShaney’s violent home until such time as DSS took action to remove him. Conceivably, then, children like Joshua are made worse off by the existence of this program when the persons and entities charged with carrying it out fail to do their job.

It simply belies reality, therefore, to contend that the State “stood by and did nothing” with respect to Joshua. Through its child-protection program, the State actively intervened in Joshua’s life and, by virtue of this intervention, acquired ever more certain knowledge that Joshua was in grave danger….

I would allow Joshua and his mother the opportunity to show that respondents’ failure to help him arose, not out of the sound exercise of professional judgment … but from the kind of arbitrariness that we have in the past condemned…

As the Court today reminds us, “the Due Process Clause of the Fourteenth Amendment was intended to prevent government ‘from abusing [its] power, or employing it as an instrument of oppression.” … My disagreement with the Court arises from its failure to see that inaction can be every bit as abusive of power as action, that oppression can result when a State undertakes a vital duty and then ignores it. Today’s opinion construes the Due Process Clause to permit a State to displace private sources of protection and then, at the critical moment, to shrug its shoulders and turn away from the harm that it has promised to try to prevent. Because I cannot agree that our Constitution is indifferent to such indifference, I respectfully dissent.

JUSTICE BLACKMUN, dissenting.

Today, the Court purports to be the dispassionate oracle of the law, unmoved by “natural sympathy.”  But, in this pretense, the Court itself retreats into a sterile formalism which prevents it from recognizing either the facts of the case before it or the legal norms that should apply to those facts. As Justice BRENNAN demonstrates, the facts here involve not mere passivity, but active state intervention in the life of Joshua DeShaney—intervention that triggered a fundamental duty to aid the boy once the State learned of the severe danger to which he was exposed.

The Court fails to recognize this duty because it attempts to draw a sharp and rigid line between action and inaction. But such formalistic reasoning has no place in the interpretation of the broad and stirring Clauses of the Fourteenth Amendment. Indeed, I submit that these Clauses were designed, at least in part, to undo the formalistic legal reasoning that infected antebellum jurisprudence…

Like the antebellum judges who denied relief to fugitive slaves, the Court today claims that its decision, however harsh, is compelled by existing legal doctrine. On the contrary, the question presented by this case is an open one, and our Fourteenth Amendment precedents may be read more broadly or narrowly depending upon how one chooses to read them. Faced with the choice, I would adopt a “sympathetic” reading, one which comports with dictates of fundamental justice and recognizes that compassion need not be exiled from the province of judging…

Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except, as the Court revealingly observes, “dutifully recorded these incidents in [their] files.” It is a sad commentary upon American life, and constitutional principles so full of late of patriotic fervor and proud proclamations about “liberty and justice for all”—that this child, Joshua DeShaney, now is assigned to live out the remainder of his life profoundly retarded. Joshua and his mother, as petitioners here, deserve—but now are denied by this Court—the opportunity to have the facts of their case considered in the light of the constitutional protection that is meant to provide.