THE OKLAHOMA BAR JOURNAL 16 | APRIL 2025 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. These tests may overlap, and the U.S. Supreme Court in Brentwood Academy v. Tennessee Secondary School Athletic Association cautioned that determining whether an action is fairly attributable to the state is a complex and contextdependent judgment.4 No single factor universally dictates state action, and the decision must consider a range of factors. Even if certain conditions suggest state involvement, other reasons might still prevent attributing the action to the government. Still, these tests help courts determine when constitutional protections should apply to private actions, ensuring that the state’s influence or involvement does not bypass fundamental rights. With that in mind, we will now delve deeper into each test. The Public Function Test To begin, the public function test applies when a private entity performs a function that has traditionally and exclusively been the role of the state. Under this test, if a private entity assumes a role historically reserved for the government, such as conducting elections or managing a town, its actions may be considered state actions and thus subject to constitutional scrutiny. The key question is whether the function has been one that only the government has traditionally performed; if so, the private entity may be held to the same constitutional standards as the state. The public function test was developed under unique circumstances in Marsh v. Alabama in 1946. The U.S. Supreme Court considered whether a state could constitutionally impose criminal penalties on a person distributing religious literature in a company- owned town against the wishes of the town’s management. The private town, owned by Gulf Shipbuilding Corp., operated like any typical American town, with public streets, a business district and a post office. A Jehovah’s Witness was arrested for distributing religious literature on the town’s sidewalk after being denied a permit. The Supreme Court ruled that, despite its private ownership, the company town could not infringe on First Amendment freedoms because it served the public in the same manner as any other municipality.5 In contrast, in Jackson v. Metropolitan Edison Company, the U.S. Supreme Court held that the termination of electric service by a privately owned utility company, despite being labeled “public,” did not constitute state action under the 14th Amendment. The case involved a resident who had her electricity service terminated by the company for nonpayment, which it was certified by the state to do. She filed a lawsuit claiming the utility’s actions violated her due process rights under the 14th Amendment, arguing that the company’s actions were effectively state actions due to its regulated status, public service function and monopoly power. The Supreme Court disagreed, ruling that extensive regulation and the provision of an essential public service did not convert the utility’s actions into state actions.6 The bar for applying the public function test is notably high, as the function in question must not only be one traditionally performed by the government but also one that has been carried out exclusively by the government, without private involvement.
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