State Discrimination and Private Discrimination
- 14th Amendment does not empower federal government to stop private acts of discrimination
- 14th Amendment does require federal governments to stop state governments and their employees from discriminating
The federal government's ability to advance equality is thus restricted by a fundamental requirement: it can only take action to ensure that the states do not apply their laws or policies in a discriminatory manner. The Fourteenth Amendment does not empower the federal government to intervene in private matters; that is, it cannot prevent acts of private discrimination. But over the past century, the Supreme Court has interpreted the range of federal authority somewhat broadly. The Court has held that the "states" subject to federal oversight under the Fourteenth Amendment include all employees and agencies of the states, as well as private persons and entities having some relationship with the states. A public employee, a private citizen under state government contract, and an individual delegated to act on behalf of the state "acts in the name and for the State, and is clothed with the State's power, his act is that of the State."23 Consequently, he is held to the terms of the Fourteenth Amendment; he may not "deny to any person within its jurisdiction the equal protection of the laws."
Defining, however, with precision who or what is in some sense "clothed with the State's power" has proven a difficult judicial task. If a city grants a business license to a restaurant that refuses to seat African Americans, does the city become a party to the discrimination? When the county provides sheriff and fire protection to this business does it violate the equal protection clause? Generally, the courts have held that the State becomes complicit only when it directly participates in the discriminatory behavior. As a result, many forms of private discrimination remain outside judicial intervention through the Fourteenth Amendment.