Lebron v. National Railroad Passenger Corporation (AMTRAK) Brief Amicus Curiae

    No. 93-1525

In  The

irtjirrmr (tart at tljr l&nxtvh States
October T^rm, 1994

Michael A. Lebron,
Petitioner,

National Railroad Passenger Corporation
(AMTRAK),

_________  R espondent.

On Writ of Certiorari to the 
United States Court of Appeals 

for the Second Circuit

BRIEF OF THE NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND, INC., NATIONAL ASIAN 

PACIFIC AMERICAN LEGAL CONSORTIUM, 
NATIONAL WOMEN’S LAW CENTER, PEOPLE FOR 

THE AMERICAN WAY, PUERTO RICAN LEGAL 
DEFENSE AND EDUCATION FUND, INC.,

AND WOMEN’S LEGAL DEFENSE FUND AS 
AM ICI CURIAE  IN SUPPORT OF PETITIONER

Elliot M. Mincberg 
Lawrence S. Ottinger 
People for the American Way 
2000 M Street, N.W.
Suite 400
Washington, D.C. 20036 
(202) 467-4999 
[Of Counsel Listed on 
Inside Cover]
July 25,1994

James F. F itzpatrick * 
Michael E. Korens 
Arnold & Porter 
1200 New Hampshire Ave., N.W. 
Washington, D.C. 20036 
(202) 872-6700 
* Counsel of Record for 

Amici Curiae

W i l s o n  - Ep e s  P r i n t i n g  C o . ,  In c . -  7 8 9 - 0 0 9 6  - W a s h i n g t o n , D . C .  2 0 0 0 1



Of Counsel:
Elaine R. Jones 
Theodore M. Shaw 
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson Street 
16th Floor
New York, N.Y. 10013
Bill Tamayo 
P hilip Thiatsu Nash 
National Asian Pacific 

American Legal Consortium 
1629 K Street, N.W.
Suite 1010
Washington, D.C. 20006
Marcia Greenberger 
Deborah L. Brake 
National Women’s Law Center 
1616 P Street, N.W.
Suite 100
Washington, D.C. 20036
Kenneth Kimeeling 
Puerto Rican Legal Defense 

and Education Fund, Inc.
99 Hudson Street 
New York, N.Y. 10003
Judith L. Lichtman 
Donna R. Lenhoff 
Women’s Legal Defense Fund 
1875 Connecticut Avenue, N.W. 
Suite 710
Washington, D.C. 20009



TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES .......................................... . iii

CONSENT OF PA R TIE S..... .............................................  1

INTEREST OF AMICI ............ ......................................... . 1

SUMMARY OF ARGUM ENT........ ........... ....... ....... . 3

ARGUMENT.......................................................................... . 4

I. THIS COURT SHOULD REJECT THE CIR­
CUIT COURT’S EVISCERATION OF THE 
BU RTO N  DECISION BECAUSE THE BU R­
TON  STANDARD FOR IDENTIFYING  
STATE ACTION ACCURATELY REFLECTS 
THE INTENT OF THE FOURTEENTH 
AMENDMENT AND HAS BEEN AN ESSEN­
TIAL FACTOR IN GUARANTEEING EQUAL
RIGHTS - .................. ........... ........... .......... .......... ...... 4

A. The State Action Doctrine Is Essential In
Guaranteeing Equal Rights ................... .........  5

1. This Court’s historic state action deci­
sions have allowed the enforcement of 
civil rights in a manner that reflects the 
intent of the Framers of the Fourteenth 
Amendment......................... ....... ......... ..........  6

2. A flexible state action doctrine is inex­
orably tied to the ability of aggrieved 
individuals to redress violations of their
constitutional r ig h ts ....................................  8

B. Affirming The Second Circuit’s Decision
Would Seriously Undermine B u r to n ...... ......  9

C. A Fact-Specific Approach To State Action
Has Historically Allowed Courts To Defeat 
Attempts By Governments To Privatize Tra­
ditional Public Services As A Pretext For
Avoiding Constitutional Obligations  ........ 15

1. Public Transportation..................................  15



2. Public Education ..........................................  17

3. Public Parks and Recreational Facilities.. 19

II. BU RTO N  MUST NOT BE UNDERMINED AT 
A TIME WHEN GREAT FLEXIBILITY IS 
NEEDED TO ADDRESS THE INCREAS­
INGLY “NONOBVIOUS INVOLVEMENT1 OF 
THE STATE IN PRIVATE CONDUCT”__  22

A. There Is A Current Trend Toward Privati­
zation Of Public Services  ...............  22

B. In The Absence Of Burton, This Trend To­
wards Privatization Will Immunize Broad 
Categories Of Conduct Properly Subject To 
Constitutional Constraints ................. 26

CONCLUSION.......................................     27

A PPEN D IX ..............................................................................  la

IX

TABLE OF CONTENTS—Continued
Page



Ill

Cases:
TABLE OF AUTHORITIES

Page
Adams V. Vandemark, 855 F.2d 312 (6th Cir.

1988), cert, denied, 488 U.S. 1042 (1989)...........  12
Bivens V. Six Unknown Federal Agents, 403 U.S.

388 (1971) - ....................... ........ ..................... .........  5 ,8 ,9
Blum V. Yaretsky, 457 U.S. 991 (1982) ...................  14, 26
Boman v. Birmingham Transit Co., 280 F.2d 531

(5th Cir. 1960) _____ ______ _____ __________  16,17
Brown V. Board of Educ., 347 U.S. 483 (1954).....  15,17,

21, 22
Burton  V. W ilmington Parking Auth., 365 U.S.

715 (1961) ______ ____ ______________ _______passim
The Civil R ights Cases, 109 U.S. 3 (1883)___ __ _ 6
Cooper v. Aaron, 358 U.S. 1 (1958) — .................... 19
Edmonson V. Leesville Concrete Co., 500 U.S. 614

(1991) ______ _________ __ _____________ _____  12
Evans V. Newton, 382 U.S. 296 (1966) __________  19, 20
E x  Parte Virginia, 100 U.S. 339 (1879) ________  6
Flagg Bros., Inc. V. Brooks, 436 U.S. 149 (1978).. 26
Gayle V. Browder, 352 U.S. 903 (1 9 5 6 )______ __ _ 16
Gilmore V. City o f Montgomery, 417 U.S. 556

(1 9 7 4 )............... ...................................... ............ ........  21
Griffin v. County Sch. Bd. of Prince Edtvard

County, 377 U.S. 218 (1964) ........................ .....17,18,19
Hall V. St. Helena Parish Sch, Bd., 197 F. Supp.

649 (E.D. La. 1961) ..................... .......... ......... .......  19
Imperiale V. Hahnemann Univ., 776 F. Supp. 189 

(E.D. Pa. 1991), aff’d, 966 F.2d 125 (3d Cir.
1992) .............................................    12

Jackson v. Metropolitan Edison Co., 419 U.S. 345
(1 9 7 4 )...................................................................4 ,12 ,14 , 26

Lane V. Wilson, 307 U.S. 268 (1939) ............. ..........  7
Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982).. 9,12
Maine V. Thiboutot, 448 U.S, 1 (1980) _________  7
Marsh V. Alabama, 326 U.S. 501 (1946)_______ _ 7, 9
M yers V. Anderson, 238 U.S. 368 (1915) ________  7
Monroe V. Pape, 365 U.S. 167 (1961)__________ 5, 7, 8, 9
Moose Lodge No. 107 V. Irvis, 407 U.S. 163

(1972) ______ ____________ _____ __________ -.1 2 ,1 3 ,1 4
M uir v. Louisville Park Theatrical A ss’n, 347 U.S.

971 (1954) ..................................................................  18,19



IV

TABLE OF AUTHORITIES—Continued
Page

National Collegiate A thletic A ss’n  V. Tarkanian,
488 U.S. 179 (1988) _________________ _______  12,14

Pennsylvania V. Board o f Trusts, 353 U.S. 230
(1 9 5 7 )____       20

Plessy V. Ferguson, 163 U.S. 537 (1896)............ . 16, 21
Public Utils. Comm’n  V. Poliak, 343 U.S. 451

(1 9 5 2 )_________ ____________ ______ ____ ____9, 20, 21
Rendell-Baker V. Kohn, 457 U.S. 830 (1982)....... . 26
San Francisco A r ts  & Athletics, Inc. V. United 

States Olympic Committee, 483 U.S. 522 (1987).. 12,13,
14, 25, 26

Shelley V. Kraemer, 334 U.S. 1 (1948) _________  7
Screws V. United States, 325 U.S. 91 (1945)  ....... 7
St. Helena Parish Sch. Bd. V. Hall, 368 U.S. 515

(1962) ...........   19
Terry  V. Adams, 345 U.S. 461 (1 9 5 3 ).... ................. 9
Tulsa Professional Collection Serv., Inc. V. Pope,

485 U.S. 478 (1988) .................................................  12
United States  V. Price, 383 U.S. 787 (1966)..... . 5
Williams V. United States, 341 U.S. 97 (1951)...... 7
W imbish  V. Pinellas County, 342 F.2d 804 (5th 

Cir. 1965) .................       18

Books:
Samuel J. Brakel, Private Corrections in Privatiz­

ing the United States Justice System: Police, 
Adjudication, and Corrections Services from the 
Private Sector, 254 (Gary W. Bowman et al.
eds., 1992) ............ ........... ........................ ............ . 24

Robert A. Dorwart & Sherrie S. Epstein, Privati­
zation and Mental Health Care: A Fragile Bal­
ance (1993) .............       24

Gerald Gunther, Constitutional Law (11th ed.
1990)..............................................................................  9

1 E. Allan Farnsworth, Farnsworth on Contracts
(1990) .......... .............. ......... ........... ....................... . 9

President’s Commission on Privatization, Privati­
zation: Toward More Effective Government 
(1988) ........        23



V

E.S. Savas, How to Shrink Government: Privatiz­
ing the Public Sector (1982) ________ _______  24

James K. Stewart, The Justice System  and the 
Private Sector: Time for an Expanded Partner­
ship, in Privatizing the United Sta tes Justice  
System : Police, Adjudication, and Corrections 
Services from  the Private Sector (Gary W. 
Bowman et at. eds., 1992) __________________  24

Periodicals:
Privatization, 2 C.Q. Researcher 977 (1992)____  24
Private Management of Public Schools, 4 C.Q. Re­

searcher 265 (1994) ...................... ...... ...... ............... 23
Harry A. Blackmun, Section 1983 and Federal 

Protection of Individual R ights— Will the S ta t­
ute Remain or Fade Away?, 60 N.Y.U. L. Rev.
1 (1985) ........ ........ ........... ...... ...................................  6 ,7

Eugene Gressman, The Unhappy H istory of Civil 
R ights Legislation, 50 Mich. L. Rev. 1323
(1952) _____ ______ ______________ ____________  6

Susan L. Kay, The Implication o f Prison Privati­
zation on the Conduct of Prisoner Litigation  
Under 42 U.S.C. Section 1983, 40 Vand. L. Rev.
867 (1987) .............. .......... ............................... .........  25

Randall Kennedy, M artin Luther K ing’s Constitu­
tion: A  Legal H istory of the M ontgomery Bus
Boycott, 98 Yale L.J. 999 (1989)__________ __  17

Ronald C. Moe, Exploring the L im its of Privatiza­
tion, 47 Pub. Admin. Rev. 453 (1987)________  22, 23

Ira P. Robbins, The Legal Dimensions o f Private
Incarceration, 38 Am. U. L. Rev. 531 (1989)___ 26

Harold J. Sullivan, Privatization of Public Serv­
ices: A  Growing Threat to Constitutional Rights,
47 Pub. Admin. Rev. 461 (1987) ............ ........ .......  25

Newspaper:
Mary Jordan, Charter Group Banking on a Profit­

able National N etw ork o f E lite Schools, Wash.
Post, Apr. 30, 1994, at A8 .................................... 23

Miscellaneous:
4 Race Rel. L. Rep. 1027 (1959) .............................  16

TABLE OF AUTHORITIES—Continued
Page



I n  T h e

(Eimrt &i ilp lutlpft Utatni
O c to b er  T e r m , 1994

No. 93-1525

M ic h a el  A . L e b r o n ,
Petitioner,

N a tion al  R ailroad  P a ssenger  C o rpo ratio n  
(AMTRAK),

________  Respondent.

On Writ of Certiorari to the 
United States Coart of Appeals 

for the Second Circuit

BRIEF OF THE NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND, INC., NATIONAL ASIAN  

PACIFIC AMERICAN LEGAL CONSORTIUM, 
NATIONAL WOMEN’S LAW CENTER, PEOPLE FOR 

THE AMERICAN WAY, PUERTO RICAN LEGAL 
DEFENSE AND EDUCATION FUND, INC.,

AND WOMEN’S LEGAL DEFENSE FUND AS 
AMICI CURIAE IN SUPPORT OF PETITIONER

CONSENT OF PARTIES

Petitioner and respondent have consented to the filing 
of this brief pursuant to Rule 37.2 of the Rules of this 
Court.1

INTEREST OF AMICI
NAACP Legal Defense & Educational Fund, Inc., Na­

tional Asian Pacific American Legal Consortium, Na­
tional Women’s Law Center, People for the American

1 The letters of consent are being- filed separately herewith.



2

Way, Puerto Rican Legal Defense and Education Fund, 
Inc., and Women’s Legal Defense Fund (collectively the 
“Civil Rights Amici”) are national organizations dedi­
cated to protecting and promoting civil rights in the 
United States. In furtherance of that goal, the Civil 
Rights Amici have long fought to ensure that individuals 
have access to federal causes of action for violations of 
federal constitutional rights since such claims are a critical 
component of safeguarding those rights.

For more than 30 years, this Court’s decision in Burton 
V. Wilmington Parking Authority, 365 U.S. 715 (1961), 
has protected civil rights precisely because it rejected a 
mechanical, label-oriented approach for evaluating 
whether state action was present in particular instances 
of discriminatory or liberty-restricting conduct. Instead, 
the fact-specific test mandated by Burton elevates the sub­
stance over the form of a private actor’s relationship with 
the State. In doing so, Burton has made an invaluable 
contribution to civil rights in this country and is an in­
tegral part of our civil rights enforcement fabric.

With the swipe of a pen, the divided Second Circuit 
has struck a potentially serious blow to civil rights in 
this country. Claiming in a footnote that Burton is in 
disfavor with some commentators, the court essentially 
disregarded Burton's fact-specific test. In fact, it simply 
accepted Congress’ simple statutory characterization of 
Amtrak as a nongovernmental entity.

The Second Circuit’s superficial application invoked the 
words of Burton but not its spirit. Indeed, had the court 
considered the totality of the interrelationship between the 
National Railroad Passenger Corporation (“Amtrak”) 
and the United States government with respect to the 
challenged decision, it clearly would have found state 
action since the facts relating to government involvement 
here are even more compelling than the facts in Burton. 
The decision below is of grave concern to civil rights 
organizations since it clearly shows the extent to which a 
formalistic state action doctrine can erect an insurmount­



3

able barrier for aggrieved persons who seek to redress 
constitutional injuries.

Accordingly, the Civil Rights Amici have a vital inter­
est in having this Court reverse the Second Circuit’s er­
roneous decision.2

SUMMARY OF ARGUMENT3

The Second Circuit erred to the extent that it failed 
to pierce the veil of Amtrak’s putatively private conduct 
to perform the fact-intensive analysis mandated by this 
Court’s decision in Burton v. Wilmington Parking Au­
thority. Had the court truly considered the totality of the 
facts and circumstances, it would have found that the 
challenged conduct in the instant case constituted govern­
ment action. This Court should reverse the decision below 
because it is inconsistent with this Court’s longstanding 
application of the state action doctrine.

First, effective civil rights protection in the United 
States has depended in large measure on access to fed­
eral causes of action that prohibit all levels of govern­
ment (federal, state, and local) from avoiding their con­
stitutional obligations. This level of protection has been 
made possible to a great extent by application of the 
state action doctrine envisioned by the Framers of the 
Fourteenth Amendment and formalized in Burton. The 
decision below is contrary to the rationale of Burton; it 
is inconsistent with this Court’s decisions that have con­
sistently applied Burton and the intent of the Framers; 
and it disregards the historical importance of the state

2 Statements of interest submitted by the individual amici are 
included in an appendix hereto.

3 To avoid unnecessary duplication, the Civil Rights Amici will 
not add to the argument of amicus American Civil Liberties Union 
■—a position with which Civil Rights Amici agree—that the amount 
of state involvement necessary to establish state action should not 
be greater for First Amendment claims than for equal protection 
claims.



action doctrine in the enforcement of civil rights in this 
country.

Second, the underlying rationale of Burton—that a 
court must consider and weigh all facts and circumstances 
to determine nonobvious state involvement—is particu­
larly urgent at the present time since there is a trend at 
all levels of government to delegate a wide variety of 
public functions to private corporations and entities. As 
the line between public and private functions becomes 
increasingly blurred, the need for continued vigorous ap­
plication of the Burton fact-specific approach is even 
more critical to preserving the ability of individuals to 
redress deprivations of their constitutional rights. This 
need is particularly great because a number of these 
newly delegated public functions have not been “tradi­
tionally exclusively reserved to the State” and would 
therefore likely not amount to state action under this 
Court’s public function test. See Jackson v. Metropolitan 
Edison Co., 419 U.S. 345, 352-53 (1974).

ARGUMENT

I. THIS COURT SHOULD REJECT THE CIRCUIT- 
COURT’S EVISCERATION OF THE B U R TO N  DECI­
SION BECAUSE THE BU RTO N  STANDARD FOR 
IDENTIFYING STATE ACTION ACCURATELY 
REFLECTS THE INTENT OF THE FOURTEENTH  
AMENDMENT AND HAS BEEN AN ESSENTIAL  
FACTOR IN GUARANTEEING EQUAL RIGHTS

In Burton, this Court applied a fact-specific and flexible 
analysis of state action to hold that a privately owned 
restaurant leasing public space was a state actor because 
of its interdependent relationship with the government. 
In the instant case, the Second Circuit Court of Appeals 
suggested that Burton has limited continued vitality. Al­
though the court referred to Burton on occasion, it clearly 
failed to perform the “sifting [of] facts and weighing [of] 
circumstances” mandated by Burton. As demonstrated 
below, the Second Circuit’s formalistic application of the 
state action doctrine disregards this Court’s decisions and

4



5

the doctrine’s historical and ongoing importance for safe­
guarding individual rights and liberties.

A. The State Action Doctrine Is Essential In Guaran­
teeing Equal Rights

The state action doctrine operates on two levels. On 
one level, a finding of state action means that the Con­
stitution constrains the challenged conduct, even if the 
conduct is allegedly private. See Burton, 365 U.S. at 
726. On a second level, a finding that certain conduct 
involves state action allows aggrieved plaintiffs to bring 
suit to challenge such conduct under federal civil rights 
causes of action, particularly under Section 1983 (42 
U.S.C. § 1983) and under the Bivens4 doctrine, to en­
force the right of equal protection under the laws and 
other constitutional rights. See, e.g., Monroe v. Pape, 
365 U.S. 167 (1961).5 6 In the absence of a finding of 
state action, civil rights plaintiffs are relegated to other 
causes of action not necessarily tailored to the specific 
injuries they have suffered, except when legislation cre­
ates such claims. Moreover, defendants are freed from 
all constitutional restraints on their behavior.

Access to federal causes of action to redress constitu­
tional violations plays a central role in protecting civil 
rights and in holding governmental actors accountable 
for their actions. Without a sufficiently flexible state ac­
tion doctrine, many of the injuries to aggrieved plaintiffs 
would go unremedied or underremedied. The fact-specific 
test articulated in Burton allows individuals to redress 
injuries to their civil rights, even when the State is clothed 
in the robes of a private entity. In reviewing the instant 
case, this Court should be mindful of the significant role

4 In Bivens v. Six Unknown Federal Agents, 403 U.S. 388 (1971),
this Court afforded the plaintiff a cause of action against federal 
officials for violating his Fourth Amendment rights.

6 While the doctrine can be viewed on two levels, courts use the 
same analysis in making the state action determination in either 
situation. United States V. Price, 383 U.S. 787, 794 n.7 (1966).



6

a fact-bound state action doctrine has historically played 
in preserving constitutional rights and liberties. See dis­
cussion, infra, at Part I.C.

1. This Court’s historic sta te  action decisions have 
allowed the enforcement of civil rights in a man­
ner that reflects the intent of the Framers of the 
Fourteenth Amendment

When Congress enacted the Fourteenth Amendment, 
it believed that the amendment’s provisions would allow 
Congress to fashion remedies to address private discrimi­
natory action. Thus, Congress enacted numerous civil 
rights statutes between 1868 and 1875 that regulated pri­
vate conduct to protect individual rights. See generally 
Eugene Gressman, The Unhappy History of Civil Rights 
Legislation, 50 Mich. L. Rev. 1323 (1952) (detailing 
history of post-Civil War amendments and civil rights 
statutes). Congress intended these statutes to redress civil 
rights abuses effected by private persons who did not 
necessarily act with express authorization of the state, but 
whose activity the state would not or could not prevent. 
See Harry A. Blackmun, Section 1983 and Federal Pro­
tection of Individual Rights-—Will the Statute Remain or 
Fade Away?, 60 N.Y.U. L. Rev. 1, 5 (1985).

In The Civil Rights Cases, 109 U.S. 3 (1883), the 
Supreme Court limited causes of action under the civil 
rights statutes to those arising as a result of state action, 
holding that the provisions of the Fourteenth Amendment 
applied only to states and not to private individuals. Id. 
at 11. In its earliest interpretations of what constitutes 
state action, the Court narrowly construed state action as 
conduct expressly authorized by the state. See, e.g., Ex 
Parte Virginia, 100 U.S. 339 (1879).

This narrow interpretation of state action largely 
atrophied federal enforcement of civil rights. As then 
Justice Blackmun noted, following The Civil Rights Cases 
and the national move toward reconciliation, segregation 
laws spread from railways to streetcars, restaurants, bath­



7

rooms, and neighborhoods. Blackmun, supra, at 11. With 
but few exceptions, the only significant inroads into Jim 
Crow laws came in the area of voting rights, where a 
clear constitutional mandate existed in the Fifteenth 
Amendment. See, e.g., Lane v. Wilson, 307 U.S. 268 
(1939); Myers v. Anderson, 238 U.S. 368 (1915). In 
fact, only 21 reported cases were decided under Section 
1983 prior to 1920. Maine v. Thiboutot, 448 U.S. 1, 27 
(1980) (Powell, J., dissenting).

After World War II, however, it became clear that a 
narrow interpretation of state action permitted violations 
of constitutional rights. Thus, the Court properly held 
in a series of cases that constitutional limitations applied 
to activity that may previously have been characterized 
as private action. For example, this Court found a com­
pany to be a state actor when it restricted freedom of 
speech on the streets of a town it owned. Marsh v. Ala­
bama, 326 U.S. 501 (1946). Similarly, this Court held 
state court enforcement of a private racially restrictive 
covenant to be state action for constitutional purposes. 
Shelley v. Kraemer, 334 U.S. 1 (1948). Moreover, this 
Court found a private detective who held a special police 
officer’s card issued by the city to be a state actor when 
he coerced the confessions of suspects to a crime he had 
investigated. Williams v. United States, 341 U.S. 97 
(1951). These holdings built on this Court’s earlier de­
cisions that a government official is a state actor when his 
actions, though not specifically authorized by the state, 
are nonetheless clothed with governmental authority. 
See, e.g., Screws v. United States, 325 U.S. 91, 109-10 
(1945).

This developing concept of state action analysis better 
reflected the original intent of the Framers of the Four­
teenth Amendment and the drafters of Section 1983. 
Monroe v. Pape, 365 U.S. 167, 187 (1961). Thus, the 
Court in Monroe v. Pape held that Section 1983 pro­
vided individuals with an effective means of redressing



8

deprivations of their civil rights. Id. at 185.° Moreover, 
this Court recognized the link between a finding of state 
action and the need to make federal causes of action and 
remedies available to victims of civil rights abuses,

2. A flexible state action doctrine is inexorably tied 
to the ability of aggrieved individuals to redress 
violations of their constitutional rights

Section 1983 and Bivens causes of action have come 
under recent attack from those who seek to curtail the 
ability of individuals to redress violations of their consti­
tutional rights. See Blackmun, supra, at 2. One way to 
limit access to these causes of action is to employ a 
narrow, cramped definition of state action. Affirming the 
decision below would have precisely this effect.

Such a turn of events would upend the constitutional 
status quo and would revive the misguided interpretation 
of the Fourteenth Amendment that, between 1890 and 
1940, confounded the Framers’ intent and eviscerated 
enforcement of constitutional rights. Those persons and 
entities that previously would have been state actors un­
der a pragmatic form of analysis would no longer be 
bound by the Constitution. The threat of private suits 
under Section 1983 and Bivens would no longer deter 
these actors from infringing on individual rights.

Moreover, aggrieved individuals would likely have no 
way to redress injuries to their constitutional liberties. 
While these individuals might bring suit under some other 
state or federal cause of action, remedies for these claims 
would often prove insufficient to redress specific constitu­
tional injuries. See Bivens, 403 U.S. at 392-94 (1971). 
As recognized in Bivens, a court must tailor remedies to 
redress the specific iniury claimed. Id. at 392 (quoting 
Bell v. Hood, 327 U.S. 678, 684 (1946)). In fact, the

8 In its analysis, the Court detailed the legislative history indicat­
ing a strong intent to apply Section 1983 to a broad range of actors. 
See Monroe, 365 U.S. at 173-83.



9

federal right may be founded on interests that differ or 
may indeed be inconsistent with those interests under­
lying any alternative claims. See Bivens, 403 U.S. at 
392-94.7 Thus, any federal remedy for a constitutional 
injury supplements other available remedies. Monroe, 
365 U.S. at 1203. Continued access to these federal 
remedies is essential to ensure the ongoing vitality of 
individual rights under the Constitution.

B. Affirming The Second Circuit’s Decision Would 
Seriously Undermine B urton

In Burton, this Court articulated the principle, well- 
grounded in prior decisions,8 that each case raising the 
state action issue is unique and “necessarily [requires a] 
fact-bound inquiry.” Lugar v. Edmondson Oil Co., 457 
U.S. 922, 939 (1982) (citing Burton). Burton required 
courts to apply a flexible rather than a mechanical ap- * 6

7 In the instant case, one might suggest that Mr. Lebron could sue 
Amtrak for breach of contract. The policies underlying contract law, 
however, differ from those underlying the First Amendment. Con­
tract law enforces the reasonable expectations of the parties while 
the First Amendment promotes representative self-government, a 
marketplace of ideas, and individual liberty and autonomy. See, 
e.g., 1 E. Allan Farnsworth, Farnsworth on Contracts § 1.3, at 11 
(1990) ; Gerald Gunther, Constitutional Law 1001-02 (11th ed. 
1990). In the context of the present case, a private individual 
would be liable only under contract law for breaching because of 
the other party’s political viewpoint, but when the breaching party 
is the government, the First Amendment puts different interests 
into play that deserve redress beyond the scope of contract law.

6 See, e.g., Marsh V. Alabama, 326 U.S. 501 (1946) (company 
treated as state actor regarding restrictions on First Amendment 
rights to use sidewalks to distribute literature in company tow n); 
Public Utils. Comm’n  V. Poliak, 343 U.S. 451 (1952) (private bus 
company’s practice of playing radio programs on buses constituted 
state action where public utilities commission had reviewed prac­
tice and permitted it to continue); Terry V. Adams, 345 U.S. 461 
(1953) (all-white preprimary election within private club treated as 
state action). As these cases demonstrate, state action jurispru­
dence of the Burton type has never been limited to Fourteenth 
Amendment issues.



10

proach in state action cases. The rationale of the Burton 
Court as it pertained to the Equal Protection Clause is 
no less true for the First Amendment, and no less appli­
cable today:

Because the virtue of the right to equal protection 
of the laws could lie only in the breadth of its appli­
cation, its constitutional assurance was reserved in 
terms whose imprecision was necessary if the right 
were to be enjoyed in the variety of individual-state 
relationships which the Amendment was designed to 
embrace. For the same reason, to fashion and apply 
a precise formula for recognition of state responsi­
bility under the Equal Protection Clause is an “im­
possible task” which “[t]his Court has never at­
tempted.” Only by sifting facts and weighing circum­
stances can the nonobvious involvement of the State 
in private conduct be attributed its true significance.

365 U.S. at 722 (quoting Kotch v. Board of River Port 
Pilot Comm’rs, 330 U.S. 552, 556 (1947)) (emphasis 
added).

Burton's, facts are set out at length in the petitioners’ 
brief. After careful review of those facts, this Court 
found that the following indicia of governmental control 
were present: the land and parking garage building
where the restaurant was located were publicly owned 
and dedicated to “public uses”; maintenance of the build­
ing was the responsibility of the Parking Authority; the 
restaurants’s lease was “a physically and financially in­
tegral and, indeed, indispensable part of the State’s plan” 
to finance the garage; and the exempt status of the garage 
redounded to the benefit of Eagle Coffee Shoppe. Id. at 
723-24. This Court further found that the state “had 
elected to place its power, property and prestige behind 
the . . . discrimination.” Id. at 725. The Court reasoned 
that because the state could have included provisions in 
the lease that would have “affirmatively required Eagle 
to discharge the responsibilities [of the state] under the 
Fourteenth Amendment,” the state had a duty to do so.



11

It could not “effectively adbicate its responsibilities by . . . 
ignoring them,” without running afoul of the Constitu­
tion. Id. Because of these links between the Parking 
Authority and Eagle, the Court held that

[t]he State has so far insinuated itself into a position 
of interdependence with Eagle that it must be recog­
nized as a joint participant in the challenged activity, 
which, on that account, cannot be considered to have 
been so “purely private” as to fall without the scope 
of the Fourteenth Amendment.

Id.

The petitioner and the District Court have each dealt 
at length with the numerous facts that support a finding 
that the challenged action in the instant case may be fairly 
attributable to the government. We will not rehearse 
Amtrak’s interrelationship with the government here. 
Suffice it to say that if the Eagle Coffee Shoppe was so 
intertwined with the government as to make its actions 
the actions of the State, id., then the respondent cannot 
reasonably be viewed for First or Fourteenth Amendment 
purposes as anything less than a governmental actor. As 
well put by the District Court, “in both image and reality 
[the respondent] is impregnated with governmental char­
acter and inseparably intertwined with governmental au­
thority and financing.” Lehron, 811 F. Supp. at 997.

The majority below has attempted to avoid the binding 
effect of Burton by mentioning that decision but not ap­
plying the pragmatic test it mandates. The majority jus­
tified its superficial review of the facts with a lone foot­
note stating that “[s]ome commentators have suggested 
that more recent Supreme Court cases . . . have curtailed 
Burton’s precedential authority.” Lebron, 12 F.3d at 391 
n.l. Surely, the principle of stare decisis demands greater 
respect for—and more deference to—the substantial body 
of decisional law affirming the Burton approach. We 
respectfully submit that the panel majority’s attempt to 
unsettle decades of precedent should have been premised



on more than the mere musings of “some commen­
tators.” 0

In stark contrast to the divided panel’s superficial treat­
ment of Burton, this Court has consistently applied mean­
ingful fact-specific state action analysis. This Court’s de­
cision in Moose Lodge No. 107 v. Irvis, 407 U.S. 163 
(1972), illustrates this point.9 10 Moose Lodge involved

9 The Second Circuit cited four cases as the legal authority for 
this alleged trend away from Burton jurisprudence. These cases 
show no such trend. In fact, the two decisions of this Court cited 
by the majority clearly show that this Court consistently has 
applied Burton.

In Jackson V. Metropolitan Edison Co., 419 U.S. 345 (1974), and 
San Francisco Arts & Athletics, Inc. V. United States Olympic 
Committee, 483 U.S. 522 (1987), this Court never expressly over­
ruled Burton, nor did it criticize Burton as the Second Circuit’s 
footnote suggests. To the contrary, in each case the Court applied 
the Burton fact-specific test. In Jackson, this Court concluded the 
facts and circumstances did not mandate that a private utility 
corporation be deemed a governmental actor. Jackson, 419 U.S. at 
357-58. See discussion of the San Francisco Arts decision, infra 
at 13-14.

Similarly, Adams V. Vandemark, 855 F.2d 312 (6th Cir. 1988), 
cert, denied, 488 U.S. 1042 (1989), and Imperiale V. Hahnemann 
Univ., 776 F. Supp. 189 (E.D. Pa. 1991), aff’d, 966 F.2d 125 (3d 
Cir. 1992) (per curiam), are inapposite. In Adams, the challenged 
conduced was the termination of plaintiff’s employment in a private 
industry regulated by the government. Hahnemann involved the 
revocation of a medical degree by a private medical school.

10 Other, more recent examples include Edmonson V. Leesville 
Concrete Co., 500 U.S. 614 (1991) (exercise of peremptory chal­
lenges to exclude jurors on account of their race is state action); 
Tulsa Professional Collection Serv., Inc. V. Pope, 485 U.S. 478, 486 
(1988) (“ [WJhen private parties make use of state procedures 
with the overt, significant assistance of state officials, state action 
may be found.”) ; Lugar, 457 U.S. at 942 (state action through 
“joint participation” of government and private citizen exists when 
states creates procedures whereby state officials may attach property 
on ex parte application of one party to a private dispute). Cf. 
National Collegiate Athletic Ass’n V. Tarkanian, 488 U.S. 179 
(1988) (state university’s imposition of disciplinary proceedings 
against basketball coach in compliance with NCAA rules did not 
turn NCAA’s conduct into state action).

12



13

the refusal of a private club to serve food and beverages 
to a black guest of a club member. Although the parties 
had stipulated that the club “is in all respects, private in 
nature and does not appear to have any public character­
istics,” id. at 179 n.l (Douglas, J., dissenting), the Court 
did not merely accept at face value this stipulation. 
Rather, the majority expressly applied the Burton test, 
but found that on the specific facts of the case, “there 
[was] nothing approaching the symbiotic relationship be­
tween [the parking authority] and [the restaurant] that 
was present in Burton.” Id. at 175.

Importantly, the Moose Lodge majority cited Burton 
for the principle that facts must be sifted and circum­
stances weighed in order to determine whether particular 
discriminatory conduct constitutes private or state action. 
Id. at 173. The finding that the liquor licensing proce­
dure failed to change the character of the club’s act from 
private to public was not an assumption based upon blind 
acceptance of the club’s label as “private,” or even of the 
parties’ stipulation to that effect; instead, both the opinion 
of the majority and those of the dissenters involve scru­
tiny and interpretation of the particular facts of the case, 
as Burton requires.

In attempting to deny the Court’s continuing reliance 
on the flexible Burton test, the Second Circuit erroneously 
referred to San Francisco Arts & Athletics v. United 
States Olympic Committee, 483 U.S. 522 (1987). That 
case was one in which the U.S. Olympic Committee 
(“USOC”) sought an injunction to prevent San Francisco 
Arts and Athletics from using the word “Olympic” and 
the symbol of the International Olympic Committee in 
promoting the “Gay Olympic Games.”

As in Moose Lodge, the Court recognized at the out­
set that the actor in question was a private entity, id. at 
543-44, yet both the majority and the dissenters made 
that fact the point of departure rather than the end of



14

their inquiry.11 Of particular importance to the majority’s 
finding of an absence of state action was the fact that, 
during the 1980 boycott of the Moscow Olympics, the 
President and the federal government were unable to 
exercise “any type of ‘de facto’ control over the USOC”; 
they had to rely on persuasion to secure the USOC’s par­
ticipation in the boycott.11 * 13 See id. at 545 n.27. Thus, 
the issue was not whether the USOC was chartered as a 
private corporation, but whether it “can or does” func­
tion as one. Id. at 546 n.29. The flexible, fact-specific 
approach of Burton jurisprudence was necessary to make 
such a determination.

As these cases reveal, on several occasions the Court 
used the Burton test and determined that the actor in 
question was purely private and therefore not subject 
to constitutional restrictions. See, e.g., Moose Lodge, 407 
U.S. at 173-75; Tarkanian, 488 U.S. at 195. But even in 
those cases, the Burton approach was essential in making 
an informed assessment of whether there was a “ ‘suffi­
ciently close nexus between the State and the challenged 
action . . .  so that the action of the [private actor] may 
fairly be treated as that of the state itself.’ ” Blum v. 
Yaretsky, 457 U.S. 991, 1004 (1982) (quoting Jackson, 
419 U.S. at 351). Even in cases that seemed on their 
face to involve purely private action, this Court has held 
time and time again that the constitutional rights at stake

11 See San Francisco Arts, 483 U.S. at 548 (O’Connor, J., con­
curring in part and dissenting in part) (arguing that facts and
circumstances support a finding that USOC and government “are 
joint participants in the challenged activity and as such are subject 
to the equal protection provisions of the Fifth Amendment”) ; id. 
at 548-49 (Brennan, J., dissenting) (reasoning that USOC is gov­
ernmental actor because it “performs important governmental func­
tions,” and because there exists a “sufficiently close nexus” between 
government and action of USOC).

13 Of course, it is just such de facto, and indeed de jure, govern­
ment control of Amtrak that Judge Leval found to exist in the 
instant case. Lebron, 811 F. Supp. at 997-98.



15

are important enough to warrant taking a hard look to 
ensure that such appearances are not deceiving.

This Court has consistently rejected the panel major­
ity’s view that the incidental labeling of an entity as “non­
governmental” is sufficient to insulate its actions under 
all circumstances from the constitutional strictures. To 
affirm the decision of the court below would threaten to 
unravel this Court’s carefully wrought state action juris­
prudence and leave lower courts without guidance for 
evaluating future claims of quasi-state action. This evis­
ceration of Burton would reverse a long history of safe­
guarding civil liberties and civil rights that ensured that 
all indicia of public control would be considered in mak­
ing state action determinations.

C. A Fact-Specific Approach To State Action Has 
Historically Allowed Courts To Defeat Attempts 
By Governments To Privatize Traditional Public 
Services As A Pretext For Avoiding Constitutional 
Obligations

Though theoretical in its conception, this long-standing 
history of a fact-intensive state action doctrine has had 
quite tangible consequences. In the aftermath of Brown 
v. Board of Education, 347 U.S. 483 (1954), many 
southern states and localities attempted to avoid their con­
stitutional obligation to desegregate by “privatizing” tradi­
tional government services, such as transportation, educa­
tion, and parks and recreational facilities. The flexible, 
fact-intensive approach to state action adopted by this 
Court and by the lower federal courts played a critical 
role in ending “massive resistance” to desegregation in 
the South.

1. Public Transportation
On December 1, 1955, Rosa Parks refused to relin­

quish her seat and move to the back of a public bus in 
Montgomery, Alabama. Her act of civil disobedience 
ignited a year-long struggle in Montgomery—the Mont­



16

gomery bus boycott—that culminated in a Supreme Court 
decision, Gayle v. Browder, 352 U.S. 903 (1956), ending 
segregation on the city’s buses and effectively overruling 
the discredited doctrine of “separate but equal” announced 
in Plessy v. Ferguson, 163 U.S. 537 (1896).

In the aftermath of the Browder decision, and as part 
of the southern strategy of massive resistance to desegre­
gation, local officials in Birmingham, Alabama devised a 
scheme to keep segregation intact on the city’s buses. On 
the day that the old segregation ordinances in Birming­
ham were repealed, the city enacted a new ordinance giv­
ing the local bus company the power to “ ‘promulgate 
such rules and regulations for the seating of passengers 
on public conveyances . . .  as are reasonably necessary to 
assure the speedy, orderly, convenient, safe and peaceful 
handling of passengers.’ ” Boman v. Birmingham Transit 
Co., 280 F.2d 531, 532-33 (5th Cir. 1960) (quoting the 
new ordinance). The new ordinance also provided that 
a willful refusal to obey the request of a driver enforcing 
the company’s seating policy constituted a breach of the 
peace. Id. at 533. After the city promulgated its new 
ordinance, the bus company painted signs in the front 
and rear of its buses that read: “White Passengers Seat 
From Front, Colored Passengers From Rear.” Soon after 
the signs were painted, a group of blacks disregarded 
them by occupying seats near the front of a bus. When 
the blacks refused to obey the driver’s request that they 
move to the back, they were arrested for breach of the 
peace and related infractions. They subsequently sued the 
bus company and the Birmingham Board of City Com­
missioners, claiming that the signs violated the Constitu­
tion by designating seating according to race. Id. at 532- 
33.

The federal District Court held that the racially desig­
nated seating did not violate the constitutional rights of 
the plaintiffs because it did not constitute state action.1'3

13 The District Court’s decision is reprinted in 4 Race Rel. L. Rep. 
1027 (1959).



17

The District Court found that “[t]he evidence wholly 
fails to reveal that [city officials] had formed any policy, 
actually or tacitly, to apply [the new ordinance] in a 
racially discriminatory manner.” 14

A divided Fifth Circuit panel reversed the District 
Court’s judgment. The court held that because the bus 
company was a public utility holding a special franchise 
to operate on the city’s streets, state action was present. 
Boman, 280 F.2d at 534.

The Fifth Circuit’s courageous decision marked an im­
portant victory for the civil rights movement. No longer 
could city officials resist their constitutional obligation to 
desegregate by privatizing an essential public service. A 
narrow and inflexible conception of state action would 
have left the plaintiffs in Boman at the mercy of county 
and bus company officials determined to maintain the 
Jim Crow regime. If the Birmingham Transit Company 
is a state actor because it holds a special franchise to 
operate on the city’s streets, then Amtrak, created, con­
trolled, and subsidized by the federal government, should 
likewise be deemed a government actor. For this Court 
to hold otherwise would diminish the importance of deci­
sions like Boman and Burton in protecting civil rights.

2. Public Education
In the field of public education, efforts to desegregate 

also met with massive resistance in the South. Many 
southern states and localities attempted to avoid the com­
mand of Brown v. Board of Education by closing the 
public schools and setting up programs to facilitate segre­
gation by private schools and organizations.

The Supreme Court confronted one county’s effort to 
privatize its public schools in Griffin v. County School 
Board of Prince Edward County, 377 U.S. 218 (1964).

14 Randall Kennedy, Martin Luther King’s Constitution: A Legal 
History of the Montgomery Bus Boycott, 98 Yale L.J. 999, 1059 
(1989).



18

When the supervisors of Prince Edward County, Virginia 
were faced with a court order to desegregate their schools, 
they refused to levy any school taxes for the 1959-1960 
academic year. As a result, the county’s public schools 
did not open. Id. at 222-23. A private group, the Prince 
Edward School Foundation, was formed to operate pri­
vate schools for white children in the county. Id. at 223. 
During the 1959-1960 school year, those schools were 
supported entirely by private contributions. However, in 
1960, the Virginia General Assembly adopted a tuition 
grant program making every child, regardless of race, 
eligible for certain tuition grants to attend private schools 
or public schools outside his locality. The program also 
authorized localities to provide their own grants. The 
Prince Edward Board of Supervisors then passed an ordi­
nance providing further tuition grants to children attend­
ing the Prince Edward School Foundation’s schools. Id.

This Court held that the Prince Edward County School 
Board’s decision to close the county’s public schools, while 
contributing to the support of the private, segregated 
white schools that replaced them, denied black students 
the equal protection of the laws. Id. at 232. While the 
Court did not specifically address the state action issue, 
it found that because the Prince Edward public schools 
had been closed for an invidious reason—to keep the 
school district segregated—the Board’s action violated the 
equal protection clause. Id.’1'5 15

15 Although the Griffin Court’s holding was based in part on a 
finding of invidious purpose, this Court has never held that an 
intent or purpose to evade constitutional limitations is required for 
a finding of state action. See Burton, 365 U.S. at 725 & n.2 (“It is 
of no consolation to an individual denied the equal protection of 
the laws that it was done in good faith”) ; Wimbish V. Pinellas 
County, 342 F.2d 804 (5th Cir. 1965) (state action found where 
county leased land for golf course to private tenant who discrimi­
nated against blacks, notwithstanding the fact that county had no 
discriminatory purpose in executing the lease). See also Muir v. 
Louisville Park Theatrical Ass’n, 347 U.S. 971 (1954), in which 
a city leased its amphitheater for the summer to a private party 
who denied admission to> blacks. No discriminatory purpose on the



19

The Griffin Court cited an earlier case, Hall v. St. 
Helena Parish School Board, 197 F. Supp. 649 (E.D. La. 
1961), in which the District Court invalidated a Louisi­
ana statute that provided “a means by which public 
schools under desegregation orders may be changed to 
‘private’ schools operated in the same way, in the same 
buildings, with the same furnishings, with the same 
money, and under the same supervision as the public 
schools.” Id. at 651. This Court affirmed the District 
Court’s judgment invalidating the Louisiana statute as a 
denial of equal protection. St. Helena Parish Sch. Bd. v. 
Hall, 368 U.S. 515 (1962).16

While Griffin, Hall, and Cooper did not directly dis­
cuss the state action issue, all three cases are significant 
here because this Court was firm in rejecting attempts to 
preserve segregation through the privatization of public 
services. Rather than adopting a narrow and rigid ap­
proach to state action, the Court looked to larger con­
stitutional principles in holding that the state cannot dele­
gate an essential governmental function to private entities 
to circumvent the command of the Fourteenth Amend­
ment.

3. Public Parks and Recreational Facilities
This Court has long resisted attempts to privatize other 

public faciliites in order to avoid the requirements of the 
Constitution. Evans v. Newton, 382 U.S. 296 (1966), 
illustrates the approach that the Court has traditionally

city’s part was shown. Nevertheless, the Supreme Court vacated a 
lower court decision denying relief to the blacks.

16 In an earlier case, Cooper V. Aaron, 358 U.S. 1 (1958) (also- 
cited in Griffin), the Supreme Court denied Arkansas’ application 
to suspend a judicially approved school integration plan for the 
city of Little Rock, explaining that, “ [sjtate support of segre­
gated schools through any arrangement, management, funds, or 
property cannot be squared with the [Fourteenth] Amendment’s 
command that no State shall deny to any person within its jurisdic­
tion the equal protection of the laws.” Id. at 19.



20

taken in such cases. In 1911, Senator Bacon devised land 
to Macon, Georgia, to be used as a park for whites only. 
After this Court’s decision in Pennsylvania v. Board of 
Trusts, 353 U.S. 230 (1957) (finding state action when 
public officials act as trustees under a private will requir­
ing racial discrimination), the city permitted blacks to 
use the park. Bacon’s heirs and others sued to remove the 
city as trustee; black citizens intervened in opposition; 
the city resigned as trustee; and the Georgia courts ac­
cepted the city’s resignation and appointed private in­
dividuals as trustees so that the trust’s purpose would not 
fail.

Justice Douglas, writing for the Court, reversed. Be­
cause of the city’s historic role in maintaining the park, 
and because the park served a public function, it was 
subject to the requirements of the Fourteenth Amend­
ment regardless of who had title to the park under state 
law:

The momentum [the park] acquired as a public fa­
cility is certainly not dissipated ipso facto by the 
appointment of “private” trustees. . . .  If the munici­
pality remains entwined in the management or con­
trol of the park, it remains subject to the restraints 
of the Fourteenth Amendment just as the private 
utility in Public Utilities Commission of District of 
Columbia v. Poliak, 343 U.S. 451, 462 [(1952)], 
72 S.Ct. 813, 96 L.Ed. 1068, remained subject to 
the Fifth Amendment because of the surveillance 
which federal agencies had over its affairs.

Id. at 301-02.
The Evans Court relied on Public Utilities Commission 

v. Poliak, 343 U.S. 451 (1952). In Poliak, as in this 
case, the Court considered whether a public utility operat­
ing under the authority of Congress was a government 
actor. In finding government action, the Court noted:

[W]hen authority derives in part from Government’s 
thumb on the scales, the exercise of that power by



21

private persons becomes closely akin, in some re­
spects, to its exercise by Government itself.

Id. at 462 n.8 (quoting American Communications Ass’n 
v. Douds, 339 U.S. 382, 401 (1950)).17

This Court followed the reasoning of Evans in Gilmore 
v. City of Montgomery, 417 U.S. 556 (1974). In Gil­
more, the city of Montgomery granted exclusive posses­
sion and control of its recreational facilities to all-white 
private schools and groups affiliated with such schools in 
an effort to circumvent this Court’s desegregation rulings 
in the area of public recreation. Because Montgomery’s 
scheme had the effect of creating enclaves of segregation 
and depriving blacks of equal access to parks and recrea­
tional facilities, this Court held that the lower courts had 
correctly enjoined it. Id at 566-69.

A superficial application of the state action doctrine 
in these cases would have permitted state and local gov­
ernments to delegate control of public land and facilities 
to “private” entities determined to maintain segregation. 
Such a result would have left America’s parks, golf 
courses, beaches, and other public areas closed to individ­
uals who happened to be of the “wrong” color.

As this survey demonstrates, a pragmatic, fact-specific 
state action test has enabled individuals to protect their 
constitutional rights. Forty years ago, in Brown v. Board 
of Education, this Court noted:

In approaching this problem [the effect of segrega­
tion on public education], we cannot turn the clock 
back to 1868 when the [Fourteenth] Amendment 
was adopted, or even to 1896 when Plessy v. Fergu­

17 The similarities between Poliak and Lebron are striking. Both 
cases involve state action and First Amendment issues. Amtrak, 
like the bus company whose conduct was at issue in Poliak, (1) 
operates as a public utility under the authority of Congress; (2) 
enjoys a virtual monopoly in the services it provides; (3) is con­
trolled by a federally appointed Board that is responsible for the 
challenged conduct; and (4) is subject to regulatory supervision 
under agencies authorized by Congress.



22

son was written. We must consider public education 
in light of its full development and its present place 
in American life throughout the Nation.

347 U.S. at 492-93. Similarly, this Court must not turn 
the clock back on decades of state action jurisprudence.

II. B U R TO N  MUST NOT BE UNDERMINED AT A 
TIME WHEN GREAT FLEXIBILITY IS NEEDED  
TO ADDRESS THE INCREASINGLY “NONOBVI- 
OUS INVOLVEMENT OF THE STATE IN PRIVATE 
CONDUCT”

A. There Is A Current Trend Toward Privatization 
Of Public Services

Today, increasing privatization of essential services 
traditionally provided by governments has created com­
plex private-state relationships that have in some in­
stances virtually eliminated the distinction between the 
public and private sectors.18 In this time of changing 
relationships between the private and public sectors, it is 
imperative that this Court vigorously apply the Burton 
test and thereby continue to look beyond the form of an 
entity to its substance to discern whether the specific facts 
of each case require a finding of state action.

The past two decades have seen an increasing trend 
among all levels of government to delegate essential pub­
lic services to the private sector. Such privatization 
creates amalgams of public and private entities to carry 
out government functions in a variety of arrangements 
that are not formally governmental. These entities, how­
ever, provide services at the behest of governments, often

is gee Ronald C. Moe, Exploring the Limits of Privatization, 47 
Pub. Admin. Rev. 453, 456 (1987) (describing Federal Assets Dis­
position Association, a corporation created by private citizens under 
Colorado law with capital provided by Federal Savings and Loan 
Insurance Corporation, a federal agency, as “ ‘crypto-quasi-pseudo’ 
entity living precarious existence in the twilight zone between the 
public and private sectors” that “seeks to be private in its direction 
and interests but public in its rights and privileges”).



23

under significant government control, and in reliance on 
vast public resources. “What occurs, in variant forms, is 
the emergence of ‘third-party government.’ ” Moe, supra 
note 18, at 457.

Broad areas of services traditionally provided by the 
public sector have been targets of privatization efforts. 
In 1988, the President’s Commission on Privatization 
recommended privatization in one form or another of a 
broad spectrum of federal government activities including 
low-income housing, housing finance, federal loan pro­
grams, air traffic control, education, postal services, Medi­
care, and urban mass transit. President’s Commission on 
Privatization, Privatization: Toward More Effective Gov­
ernment (1988). Indeed, the President’s Commission in­
cluded Amtrak in its study and recommended a set of 
initiatives designed to place Amtrak in the private sector. 
Id. at 172-75.

Many localities have authorized privatization of their 
public schools, either by granting charters to private com­
panies to operate schools or by contracting with private 
companies to manage public schools. See Private Man­
agement of Public Schools, 4 C.Q. Researcher 265 
(1994). While these schools are operated by the private 
sector, they are publicly funded, use public facilities, and 
are subject to government regulation. Such initiatives 
are currently being implemented or considered in Ari­
zona, California, Colorado, Connecticut, Florida, Hawaii, 
Illinois, Kansas, Maryland, Massachusetts, Michigan, 
Minnesota, New Jersey, Ohio, Tennessee, Texas, Vir­
ginia, Wisconsin, and the District of Columbia. Id. at 
273; see also Mary Jordan, Charter Group Banking on 
a Profitable National Network of Elite Schools, Wash. 
Post, Apr. 30, 1994, at A8.

Correctional facilities similarly have been subject to 
privatization efforts. As of 1992, there were sixty pri­
vately operated prisons throughout fourteen states. Pri­



24

vatization, 2 C.Q. Researcher 977, 985 (1992).19 Other 
essential services traditionally provided by the public sec­
tor that are the subject of privatization efforts include 
police protection, water supply and treatment, solid waste 
collection, roads and other infrastructure, and health 
care.20

The impetus for privatization efforts stems from the 
belief that the private sector can deliver services with in­
creased efficiency and economy.21 Even though malevo­
lent intent is not the driving force as it was in those cases 
discussed in Part I.C., in which this Court found privati­
zation to be impermissible, the threat of circumventing 
constitutional obligations is a common thread. Propon­
ents of privatization point to substantial cost savings 
from avoiding constitutional constraints as one of the 
principal economic benefits of privatization. As one com­
mentator noted:

One of the attractions of prison privatization for 
state and local governments is the belief that con­
tracting prison management to private firms will re­
lieve the government of the burden of defending the 
multitude of individual and class-wide civil rights 
actions and the expense of complying with compre­

19 These numbers represent growth in the number of private cor­
rectional facilities that has increased dramatically over the past few 
years. Samuel J. Brakel, Private Corrections, in Privatizing the 
United States Justice System: Police, Adjudication, and Corrections 
Services from the Private Sector 254, 254 (Gary W. Bowman et al. 
eds., 1992).

20 See generally Robert A. Dorwart & Sherrie S. Epstein, Pri­
vatization and Mental Health Care: A Fragile Balance (1993) ; 
E.S. Savas, How to Shrink Government: Privatizing the Public 
Sector (1982) ; Privatizing the United States Justice System, supra 
note 19.

si See, e.g., E.S. Savas, supra note 20; James K. Stewart, The 
Justice System and, the Private Sector: Time for an Expanded 
Partnership, in Privatizing the United States Justice System, 
supra note 19, at 2.



25

hensive and often financially burdensome court 
orders.22

Another commentator described the impact of privati­
zation on constitutionally protected rights:

By turning production of public services over to pri­
vate agencies, governments can effectively evade 
most constitutional restraints. . . .  To political lead­
ers or public administrators who view constitutional 
due process requirements as onerous limits on the 
efficiency of government agencies, the possibility of 
escaping such restraints can only add luster to the 
possibilities of privatization.23

Privatization of numerous public services further blurs 
the distinction between the private and public sectors. 
While some “privatized” public services may not consti­
tute state action under the Burton test, others will. “The 
Government is free, of course, to ‘privatize’ some func­
tions it would otherwise perform. But such privatization 
ought not automatically release those who perform Gov­
ernment functions from constitutional obligations.” San 
Francisco Arts, 483 U.S. at 560 (Brennan, J., dissent­
ing). Therefore, a searching state action inquiry con­
sistent with Burton is imperative to penetrate the formal 
structure of an entity and to discern whether its substance 
reveals state action. This need is particularly great since, 
as discussed below, many privatized functions involve 
public services that have not been exclusively provided by 
the State in the past and accordingly may not be deemed 
to be state action under this Court’s exacting public func­
tion test.

22 Susan L. Kay, The Implication of Prison Privatization on the 
Conduct of Prisoner Litigation Under b2 U.S.C. Section 1983, 40 
Yand. L. Rev. 867, 868 (1987).

23 Harold J. Sullivan, Privatization of Public Services: A Grow­
ing Threat to Constitutional Rights, 47 Pub. Admin. Rev. 461, 464- 
65 (1987).



26

B. In The Absence Of B urton, This Trend Towards 
Privatization Will Immunize Broad Categories 
Of Conduct Properly Subject To Constitutional 
Constraints

Without the Burton fact-specific test, the trend towards 
privatization of public functions will create a dangerously 
wide void in the state action doctrine. The problem is 
compounded because the public function test, the only 
state action test most likely to be applicable to privatized 
public services in the absence of Burton, has been in­
terpreted as an exacting, “static” standard that is not 
sufficiently flexible to “resemble contemporary experi­
ence.” San Francisco Arts, 483 U.S. at 549 n.l (Bren­
nan, J., dissenting).

To establish state action under the public function 
test, a private entity must be engaged in a function that 
has been “traditionally exclusively reserved to the State.” 
See, e.g., San Francisco Arts, 483 U.S. at 545; Rendell- 
Baker v. Kohn, 457 U.S. 830, 842 (1982); Blum, 457 
U.S. at 1011; Flagg Bros., Inc. v. Brooks, 436 U.S. 
149, 158 (1978); Jackson, 419 U.S. at 352. Some of the 
public functions being delegated to the private sector, 
such as prisons, have been exclusively provided by the 
State. As a result, these functions could well be deemed 
government action under the narrow public function test 
and continue to be subject to constitutional limitations.124 
Many other newly delegated functions, however, have not 
been exclusively performed by the State. Accordingly, 
these newly delegated functions may well not satisfy the 
public function test, and therefore they likely would be 
immunized from constitutional constraints.

In light of the changing nature of private-public rela­
tionships, it is particularly important that this Court 
maintain the pragmatic approach to the state action doc-

24 Ira P. Robbins, The Legal Dimensions of Private Incarceration, 
38 Am. U.L. Rev. 531, 604 (1989) (arguing- that private incarcera­
tion would be found to constitute state action under the public 
function test).



27

trine adopted in Burton. The Burton test will continue to 
allow courts to make reasonable judgments in particular 
cases about the presence or absence of state action. By 
preserving the Burton test, this Court will secure the 
ability of courts to ensure that governments cannot cir­
cumvent their constitutional obligations. As a result, the 
Court will prevent a departure from a long line of prece­
dent protecting civil rights and civil liberties from in­
fringement by abusive state action.

CONCLUSION

For the foregoing reasons, the judgment of the Court 
of Appeals for the Second Circuit should be reversed.

Respectfully submitted,

Elliot M. Mincberg 
Lawrence S. Ottinger 
People for the A merican Way 
2000 M Street, N.W.
Suite 400
Washington, D.C. 20036 
(202) 467-4999

James F. F itzpatrick *
Michael E. Korens
Arnold & Porter
1200 New Hampshire Ave., N.W.
Washington, D.C. 20036
(202) 872-6700
* Counsel of Record for

Amici Curiae



2 8

Of Counsel:
Elaine R. Jones 
Theodore M. Shaw 
NAACP Legal Defense & 

Educational Fund, Inc .
99 Hudson Street 
16th Floor
New York, N.Y. 10013
B ill Tamayo 
P hilip Thiatsu N ash 
National Asian Pacific 

A merican Legal Consortium 
1629 K Street, N.W.
Suite 1010
Washington, D.C. 20006
Marcia Greenberger 
Deborah L. Brake 
National Women’s Law Center 
1616 P Street, N.W.
Suite 100
Washington, D.C. 20036
Kenneth  Kimerling 
Puerto Rican Legal Defense 

and Education Fund, Inc.
99 Hudson Street 
New York, N.Y. 10003
Judith L. Lichtman 
Donna R. Lenhoff 
Women’s Legal Defense Fund 
1875 Connecticut Avenue, N.W. 
Suite 710
Washington, D.C. 20009 
July 25,1994



l a

APPENDIX

STATEMENTS' OF INDIVIDUAL A M IC I

The NAACP Legal Defense and Educational Fund, 
Inc. (“the Fund”) is a non-profit corporation that was 
established for the purpose of assisting African Americans 
in securing their constitutional and civil rights. This 
Court has noted the Fund’s “reputation for expertness in 
presenting and arguing the difficult questions of law that 
frequently arise in civil rights litigation.” NAACP v. 
Button, 371 U.S. 415, 422 (1963). Attorneys for the 
Fund were counsel in Burton v. Wilmington Parking Au­
thority, 365 U.S. 715 (1961), Evans v. Newton, 382 
U.S. 296 (1966), and other leading cases dealing with 
the issue of state action within the meaning of the Four­
teenth Amendment.

The National Asian Pacific American Legal Consortium 
is a not-for-profit, nonpartisan organization whose mission 
is to advance the legal and civil rights of Asian Pacific 
Americans through a national collaborative structure that 
pursues litigation, advocacy, public education, and public 
policy development. NAPALC addresses violence, immi­
gration, voting rights and other issues. As a civil rights 
organization, the Consortium is very concerned about 
guaranteeing access to Federal courts for litigants who 
believe that their rights have been violated by govern­
mental actions.

The National Women’s Law Center (“Center”) is a 
non-profit legal advocacy organization dedicated to the 
advancement and protection of women’s rights and the 
corresponding elimination of sex discrimination from all 
facets of American life. Since its inception in 1972, the 
Center has actively participated in litigation to secure the 
rights of women and has participated in major Supreme 
Court cases addressing women’s civil and constitutional 
rights under the law.

People For the American Way (“People For”) is a 
nonpartisan, education-oriented citizens’ organization es­



2 a

tablished to promote and protect civil and constitutional 
rights. Founded in 1980 by a group of religious, civic 
and educational leaders devoted to our nation’s heritage 
of tolerance, pluralism and liberty, People For now has 
over 300,000 members nationwide. People For has been 
actively involved in cases seeking to redress violations of 
Americans’ fundamental constitutional and statutory 
rights. In this regard, People For has represented par­
ties in litigation and filed amicus briefs before this Court 
in cases implicating fundamental rights under the First 
Amendment, the Fourteenth Amendment, and the major 
federal civil rights laws. People For is filing this amicus 
brief because of the importance of preserving and con­
scientiously applying the Court’s well-established prece­
dent in Burton v. Wilmington Parking Authority in order 
to protect and enforce Americans’ fundamental federal 
constitutional and civil rights.

The Puerto Rican Legal Defense & Education Fund, 
Inc. (PRLDEF) is a national civil rights litigating or­
ganization dedicated to protecting and furthering the 
rights of Puerto Ricans and other Latinos. PRLDEF has 
represented and continues to represent clients with con­
stitutional claims. The issue of state action is important 
to PRLDEF clients who often face First, Fifth and Four­
teenth Amendment violations by quasi-governmental 
agencies.

Founded in 1971, the Women’s Legal Defense Fund 
(WLDF) is a national advocacy organization working at 
federal and state levels to promote policies that help 
women achieve equal opportunity, quality health care, 
and economic security for themselves and their families.

WLDF has long advocated broad application of the 
state action doctrine to ensure that the constitutional 
guarantee of equal protection under the law protects 
women against invidious gender discrimination. Indeed, 
a narrow interpretation of state action doctrine could also 
constrict women’s rights under state Equal Rights Amend­
ments.