Knowledge And Decisions

In other cases, private discriminatory decisions were classified as “state action” because some governmental body was financially, administratively, or otherwise involved with the private party — as in Burton v. Wilmington Parking Authority (1961), where a restaurant leased in a government facility was racially discriminatory. The question of how much government involvement with a private party was necessary to make private decisions “state action” for legal purposes was never resolved. The Supreme Court deemed the fashioning of a “precise formula” to be “an impossible task” which “this Court has never attempted.”⁵¹ In other cases, however, state licensing — even when restrictive⁵² or monopolistic⁵³ — was not sufficient to convert the licensees’ decisions into “state action.” As the dissenters in Burton observed, the lack of clear principle “leaves completely at sea” what was and was not “state action.”⁵⁴ What was left unresolved was not merely the question of where to draw the line — a “precise formula” — but on what principle.

In place of principle, a miscellany of ad hoc reasons are sprinkled through “state action” cases: functional parallelism of private to public activity,⁵⁵ state receipt of benefits from a private activity,⁵⁶ the “publicness” of the activity,⁵⁷ or even the fact that the state “could have” acted in an area but chose to “abdicate” instead.⁵⁸

The Civil Rights Act of 1964 made many distinctions between private and state decision making legally unnecessary, since private operators of various public accommodations were statutorily prohibited from racial discrimination, just as the state was constitutionally prohibited. Subsequent cases show the Supreme Court pulling back in the “state action” area — not only on the question of where to draw the line, but more fundamentally on the principle involved in drawing it: “Respondent’s exercise of the choice allowed by state law where the initiative comes from it and not from the state, does not make its action in doing so ‘state action’ for purposes of the Fourteenth Amendment.”⁵⁹ This distinction between state authorization of an area of private discretion and direct state decision making would annihilate the rationale for most of the prior series of landmark “state action” decisions, beginning with restrictive covenants and ending with repeal of California’s “fair housing” law. Although this principle was announced in a nonracial discrimination case, presumably the definition of constitutional principles does not depend on who is involved. Neither in the “free speech” cases like Marsh nor in such racial cases as Burton did the state initiate the decisions which led to the legal activity. All that the state did was enforce private individuals’ general (nonracial) right to exclude. Yet the inconsistencies throughout this series of cases raises disturbing questions about whether this was simply another “results”-oriented area, for which the Supreme Court became known in the Warren era.⁶⁰ If so, the underlying consistency of the cases may lie in the social policy preferred by the court in the racial area, and in the greater ease of achieving those results, after the Civil Rights Act of 1964, without strained and shaky reasonings about “state action.”

AFFIRMATIVE ACTION

The phrase “affirmative action” is ambiguous. It refers both to a general approach and to highly specific policies. The general approach is that to “cease and desist” from some harmful activity may be insufficient to undo the harm already done, or even to prevent additional harm in the future from a pattern of events set in motion in the past. This idea antedates the civil rights issues of the 1960s. The 1935 Wagner Act prescribed that “affirmative action”⁶¹ be taken by employers found guilty of intimidating unionized employees — for example, posting notices of changed policies and/or reinstating discharged workers with back pay.⁶²

Racial discrimination is another area where simply to cease and desist would not prevent future harm from past actions. The widespread practice of hiring new employees by word-of-mouth referrals from existing employees means that a racially discriminatory employer with an all-white labor force is likely to continue having an all-white labor force long after he ceases discriminating, because he will be hiring the relatives and friends of incumbent employees. Opponents of racial discrimination therefore urged that “affirmative action” be taken to break up or supersede hiring patterns and practices which left racial or ethnic minorities largely outside the usual hiring channels. This might include advertising in newspapers or in broadcast media more likely to reach minority workers, or a variety of other ways of creating equalized access to apply for employment, college admissions, etc.