10.1 State Action & Procedural Due Process

10.1 State Action & Procedural Due Process

Before analyzing any individual-rights claim, identify the government actor. Then, for a procedural due process claim, ask two questions in order: (1) did the government deprive the person of a protected liberty or property interest, and (2) if so, what process was due? Substantive due process—whether the government may take the action at all—is covered in Section 10.2.

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The State Action Requirement

The General Principle

The Fourteenth Amendment provides that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." By its explicit terms, the Fourteenth Amendment—and by extension the Bill of Rights incorporated through it—applies exclusively to government actors.

• Constitutional Reach: The Fourteenth and Fifteenth Amendments apply only to state and local governments (including state legislatures, executive agencies, municipalities, public school boards, and state courts). The Fifth Amendment Due Process Clause applies only to the federal government.
• Private Conduct Exempt: Private individuals, corporations, private universities, clubs, and commercial enterprises are not bound by Fourteenth Amendment individual rights guarantees. A private employer who terminates an employee for political speech does not violate the First Amendment; a private landlord who discriminates against tenants does not violate the Equal Protection Clause.
• The Thirteenth Amendment Exception: The Thirteenth Amendment prohibits slavery and involuntary servitude. It applies directly to both government actors and private individuals without requiring state action. Under Section 2 of the Thirteenth Amendment, Congress possesses the power to prohibit private racial discrimination as a "badge or incident of slavery" (Jones v. Alfred H. Mayer Co.).
• Statutory vs. Constitutional Protection: Congress can regulate private conduct through commerce clause legislation or civil rights statutes (e.g., Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, 42 U.S.C. § 1981). On the MBE, when a plaintiff sues under the Constitution, private discrimination is not actionable unless one of two strict exceptions applies.

Exception 1: The Exclusive Public Function Doctrine

Private conduct will be treated as state action if a private entity exercises powers that are traditionally and exclusively reserved to the sovereign state.

• Company Towns (Marsh v. Alabama): When a private corporation owns an entire municipality—including streets, sidewalks, police forces, and residential quarters—it performs the full panoply of civic municipal functions. Therefore, its suppression of expressive activity on town sidewalks constitutes state action under the First and Fourteenth Amendments.
• Primary Elections (Smith v. Allwright, Terry v. Adams): Conducting primary elections or pre-primary candidate selections that select party nominees for public office is an exclusive sovereign function. A political party cannot evade equal protection by excluding racial minorities from party primaries.
• What Is NOT an Exclusive Public Function: The Supreme Court has interpreted "exclusively public" with extreme narrowness:
  • Shopping Centers: Running a large commercial shopping mall open to the public is not an exclusive public function, even if it mimics a traditional downtown business district (Hudgens v. NLRB, Lloyd Corp. v. Tanner).
  • Private Schools: Educating children is traditionally performed by both private and public institutions, so private schools receiving state funding are not state actors (Rendell-Baker v. Kohn).
  • Utilities: A heavily regulated private electric or water utility holding a state-sanctioned monopoly is not performing an exclusive sovereign function (Jackson v. Metropolitan Edison Co.).
  • Warehouseman Liens: Enforcing a self-help commercial lien authorized by state statute is not an exclusive public function (Flagg Bros. v. Brooks).

Exception 2: Significant State Involvement (Entanglement / Joint Participation)

Private conduct constitutes state action where the state has affirmatively authorized, encouraged, facilitated, or entwined itself in the unconstitutional private activity, creating a symbiotic relationship or joint participation.

• Judicial Enforcement of Restrictive Covenants (Shelley v. Kraemer): While private parties are free to enter into racially discriminatory private agreements, when a state court issues an injunction or enters a judgment enforcing a racially restrictive covenant, the judicial machinery of the state provides coercive enforcement, transforming private bias into state action.
• Symbiotic Financial Leases (Burton v. Wilmington Parking Authority): Where a privately owned restaurant leased commercial space inside an off-street parking garage owned and operated by a public authority, and the public authority maintained the facility and relied on restaurant revenues to finance public bond obligations, the government and the private enterprise entered a mutual "symbiosis" that made the restaurant's racial discrimination attributable to the state.
• Peremptory Jury Strikes (Edmonson v. Leesville Concrete Co.): Private civil litigants exercising race-based peremptory jury challenges in a state or federal courthouse act with the overt, significant assistance of the trial judge and the court clerk, constituting state action.
• Pre-Judgment Attachment with State Officers (Lugar v. Edmondson Oil Co.): A private creditor who enlists the state court clerk and county sheriff to execute an ex parte pre-judgment seizure of a debtor's property engages in state action.
• What Is NOT Significant State Involvement (MBE Distractors):
  • Extensive State Regulation: The mere fact that a business is heavily regulated or supervised by a state agency does not create state action (Jackson v. Metropolitan Edison Co.).
  • State Liquor Licensing: Granting a state liquor license to a private racially discriminatory club does not make the club a state actor (Moose Lodge No. 107 v. Irvis).
  • Government Funding or Subsidies: Extensive government funding—even where 90% or more of an institution's operating budget comes from state contracts or grants—does not convert a private entity into a state actor (Rendell-Baker v. Kohn, Blum v. Yaretsky).
  • Monopoly Status: Holding a state-granted exclusive monopoly (e.g., utility providers, transit companies) is insufficient (Jackson).
  • Private Athletic Associations: The NCAA is a private voluntary association whose disciplinary actions against state university coaches do not constitute state action (NCAA v. Tarkanian; contrast with Brentwood Academy, where a state high school athletic association composed predominantly of public school officials was deemed a state actor due to pervasive state entwinement).

MBE Tip: If an MBE question presents a private company receiving government funding or a government license that fires an employee or denies service to a patron, the correct answer almost always turns on the lack of state action. Do not evaluate whether due process or free speech was violated until state action is affirmatively established.

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Procedural Due Process

The Due Process Clauses of the Fifth Amendment (binding the federal government) and the Fourteenth Amendment (binding the states) guarantee that the government shall not deprive any person of "life, liberty, or property, without due process of law."

The Deprivation Requirement: Intent vs. Negligence

Procedural due process applies only when the government deprives an individual of a protected interest. Under Daniels v. Williams (1986) and Davidson v. Cannon (1986), a constitutional "deprivation" requires more than mere negligence; the Court has not decided whether recklessness or gross negligence is enough. Mere official negligence—such as a prison guard negligently leaving a pillow on a stairway causing an inmate to slip and fall—does not constitute a deprivation under the Due Process Clause, even if it results in severe injury. State tort law, not constitutional due process, is the sole remedy for negligent harms.

Protected Interests: Life, Liberty, and Property

Before determining what process is required, courts must first determine whether a protected interest is at stake.

                  ┌──────────────────────────────────────────────┐
                  │ Did the government deprive a person of life, │
                  │             liberty, or property?            │
                  └──────────────────────┬───────────────────────┘
                                         │
                       NO                │              YES
                       ▼                 │               ▼
             ┌───────────────────┐       │     ┌───────────────────┐
             │  No Procedural    │       │     │ What process is   │
             │  Due Process      │       │     │ due under Mathews │
             │  protection       │       │     │   v. Eldridge?    │
             └───────────────────┘       │     └───────────────────┘

1. Liberty Interests

A liberty interest is implicated when the government imposes physical restraints, confinement, or deprives a person of core constitutional freedoms:

• Physical Restraints: Incarceration, civil commitment to a mental health facility (Vitek v. Jones), probation or parole revocation (Morrissey v. Brewer), or physical confinement.
• Loss of Legal Freedoms: The right to contract, practice one's chosen profession, marry, or direct the education of one's children.
• The "Stigma-Plus" Doctrine (Paul v. Davis): Defamation or injury to reputation by government officials alone is not a deprivation of liberty. To establish a liberty deprivation, the reputational harm must be accompanied by a tangible, legal alteration of status or loss of a right—such as termination from public employment or loss of a government license ("stigma-plus").

2. Property Interests

A constitutional property interest is not created by the Constitution itself. Rather, it is created and defined by an independent source such as state law, federal statutes, municipal ordinances, or express/implied contracts (Board of Regents v. Roth, Perry v. Sindermann).

• The "Legitimate Claim of Entitlement" Rule: A protected property interest requires a legitimate claim of entitlement under positive law. An abstract need, desire, or unilateral expectation of a benefit does not suffice.
• Public Employment:
  • At-Will Employment: An at-will public employee who can be dismissed for any reason or no reason has no property interest in continued employment. Summary discharge violates no procedural due process rights (Roth).
  • For-Cause Employment: A public employee who can be dismissed only "for cause," "for misconduct," or who has attained civil service tenure possesses a protected property interest in continued employment (Cleveland Board of Education v. Loudermill).
• Welfare and Public Assistance Benefits: Recipients of statutory welfare benefits have a legitimate claim of entitlement created by the eligibility statute (Goldberg v. Kelly).
• Public Education: State statutes guaranteeing free public education create a property entitlement; suspending a student deprives them of property and liberty (Goss v. Lopez).
• Government Licenses: Professional licenses, driver's licenses (Bell v. Burson), and business permits create property interests once issued; the state cannot arbitrarily revoke them without process.
• Utility Services: Customers of municipal utilities with statutory protections against shut-offs absent cause possess a property interest in continued service (Memphis Light, Gas & Water Division v. Craft).

What Process Is Due: The Mathews v. Eldridge Balancing Test

Once a deprivation of life, liberty, or property is established, the core procedural requirements are notice reasonably calculated under all circumstances to apprise interested parties of the pendency of the action (Mullane v. Central Hanover Bank & Trust Co.) and an opportunity to be heard before a neutral, unbiased decisionmaker (Caperton v. A.T. Massey Coal Co.).

To determine the specific timing, formality, and procedural elements required (e.g., whether a pre-deprivation evidentiary hearing is necessary, or whether a post-deprivation hearing suffices), courts apply the three-factor balancing test established in Mathews v. Eldridge (1976):

1. The Private Interest: The strength and nature of the private interest that will be affected by the official governmental action;
2. The Risk of Erroneous Deprivation & Value of Additional Safeguards: The probability that existing administrative procedures will result in an erroneous deprivation, and the probable value, if any, of additional or substitute procedural safeguards; and
3. The Government Interest: The government's function, including the fiscal, administrative, and operational burdens that additional or substitute procedural requirements would impose.

Procedural Safeguards Across Common Administrative Contexts

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More State Action and Procedural Due Process Rules

Recent State Action Decisions

• Public access channels: A private nonprofit corporation that operated public access cable channels was not a state actor when it suspended producers from its facilities, because operating a forum for speech is not a function traditionally and exclusively performed by government (Manhattan Community Access Corp. v. Halleck, 2019).
• Officials' social-media accounts: A public official's posts and blocking decisions are state action only if the official (1) possessed actual authority to speak on the government's behalf on the matter and (2) purported to exercise that authority in the relevant posts (Lindke v. Freed, 2024).
• Contracted government functions: A private physician under contract to provide medical care to state prisoners acts under color of state law, because the state has an obligation to provide that care and delegated it (West v. Atkins, 1988).

No General Duty to Protect

The Due Process Clause limits government action; it does not generally require the government to protect people from private harm. A county was not liable for failing to protect a child from his father's abuse, even though social workers knew of the danger (DeShaney v. Winnebago County Department of Social Services, 1989), and a person holding a restraining order had no property interest in police enforcement of it (Town of Castle Rock v. Gonzales, 2005). The government does owe duties to people in its custody, such as prisoners and involuntarily committed patients.

Additional Procedural Rules

• Random, unauthorized deprivations: If a state employee's random and unauthorized act deprives someone of property, and a predeprivation hearing was impossible, an adequate state post-deprivation remedy—such as a tort suit—satisfies due process (Hudson v. Palmer, 1984). That rule does not apply when the deprivation results from an established state procedure (Logan v. Zimmerman Brush Co., 1982).
• Notice: When mailed notice of a tax sale is returned unclaimed, the government must take additional reasonable steps to notify the owner if practicable (Jones v. Flowers, 2006).
• Neutral decisionmaker: Due process is violated when a judge has a direct financial interest in the outcome (Tumey v. Ohio, 1927), when a campaign contributor's extraordinary support creates a serious risk of bias (Caperton), or when a judge decides a case in which he had significant personal involvement as a prosecutor (Williams v. Pennsylvania, 2016).
• Burdens of proof: Termination of parental rights (Santosky v. Kramer, 1982) and involuntary civil commitment (Addington v. Texas, 1979) require at least clear and convincing evidence.
• Prisoners: Prison discipline implicates a liberty interest only if it imposes an atypical and significant hardship compared with ordinary prison life (Sandin v. Conner, 1995).
• Property seizures: When the government seizes personal property such as a car for civil forfeiture, due process requires a timely post-seizure forfeiture hearing but not a separate preliminary hearing on whether the government may keep the property in the meantime (Culley v. Marshall, 2024).