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12 J. Marshall J. Prac. & Proc. 637 (1978-1979)
Flagg Brothers, Inc. v. Brooks - The Public Function Doctrine in Retreat

handle is hein.journals/jmlr12 and id is 645 raw text is: FLAGG BROTHERS, INC. V. BROOKS
Since the Civil Rights Cases,' it has been clear that the
prohibitions of the fourteenth amendment do not apply to
purely private conduct, rather, they apply only to conduct attrib-
utable to a state. Thus, in order to subject seemingly private ac-
tivity to the restraints of the fourteenth amendment, courts have
had to determine whether the challenged conduct constituted
state action.'2
The Supreme Court has indicated that the under color of
state law provision of section 1983 of the Civil Rights Act of
18713 and the state action requirement of the fourteenth amend-
ment are equivalent.4 Claims brought under this statute and its
jurisdictional counterpart5 have resulted in the Court's leading
decisions on the issue of what private activity constitutes state
action.6 However, the Court has had great difficulty in drawing a
1. 109 U.S. 3 (1883).
2. E.g. Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974); see text
accompanying notes 73-74 infra.
3. 42 U.S.C. § 1983 (1976). Section 1983 provides:
Every Person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory, subjects, or causes to be
subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immu-
nities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for
4. Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 n.7 (1970); United States
v. Price, 383 U.S. 787, 794 n.7 (1966).
5. 28 U.S.C. § 1343(3) (1976) provides:
The district courts shall have original jurisdiction of any civil action
authorized by law to be commenced by any person: . . . (3) To redress
the deprivation, under color of any State law, statute, ordinance, regula-
tion, custom or usage, of any right, privilege or immunity secured by the
Constitution of the United States or by any Act of Congress providing
for equal rights of citizens or of all persons within the jurisdiction of the
United States....
6. E.g., Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978) (due process at-
tack on state authorized prejudgment sale of encumbered goods by ware-
housemen); Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974) (due
process attack on termination practices of privately owned utility); Burton
v. Wilmington Parking Auth., 365 U.S. 715 (1961) (equal protection attack on
racially discriminatory practices of restaurant leasing space in a state
owned building; state action found).

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