Courts have characterized private parties as state actors where a state allows or is involved with conduct that would be unconstitutional should the state itself engage in that conduct. See, e.g., Edmonson v. Leesville Concrete Co., 500 U.S. 614, 621–22 (1991) (“Our precedents establish that, in determining whether a particular action or course of conduct is governmental in character, it is relevant to examine the following: the extent to which the actor relies on governmental assistance and benefits; whether the actor is performing a traditional governmental function; and whether the injury caused is aggravated in a unique way by the incidents of governmental authority.”) (internal citations omitted); Reitman v. Mulkey, 387 U.S. 369, 380–81 (1967) (finding state action where law “authorize[d] . . . racial discrimination in the housing market”); Smith v. Allwright, 321 U.S. 649, 663–64 (1944) (holding that a state’s establishment of primary system made party that set up an all-white primary “an agency of the state”); Nixon v. Condon, 286 U.S. 73 (1932) (state’s conferral of authority to party committee to determine who may vote in primary created state action); Skinner v. Ry. Lab. Execs. Ass’n, 489 U.S. 602, 615–16 (1989) (finding state action where the government removed “all legal barriers” to private conduct at issue and “made plain . . . its strong preference” that private parties engaged in the conduct).
For instance, in Shelley v. Kraemer, a white couple (Kraemers), sued a black couple (Shelleys), to stop the Shelleys from moving into the house they had just purchased in a St. Louis neighborhood. Shelley v. Kraemer, 334 U.S. 1, 4-6 (1948) (private agreements to exclude persons of designated race or color from the use or occupancy of real estate for residential purposes do not violate the Fourteenth Amendment; but it is violative of the equal protection clause of the Fourteenth Amendment for state courts to enforce them).
The Kraemers sought to enforce the terms of a restrictive covenant that specifically excluded Blacks from occupying the property. Id. Before the Supreme Court, the Shelleys, who were unaware of the restrictive covenant when they purchased their home, argued that they had been denied equal protection of the laws. Id. at 8. Confident that racial restrictive covenants violate the Fourteenth Amendment when they involve “action by state legislature or city councils,” the Court considered whether “agreements among private individuals” to discriminate removed the state action necessary to invoke the Fourteenth Amendment. Id. at 12–13. Noting that a restrictive covenant standing alone would not violate the Constitution, the Supreme Court concluded that “here there was more. These are cases in which the purposes of the agreements were secured only by judicial enforcement by state courts of the restrictive terms of the agreements.” Id. at 13–14.
The Supreme Court imputed the unconstitutional acts of the private individuals to the state because the state “grant[ed] judicial enforcement” of the unconstitutional act. Id. at 20. Clearly, a State cannot grant judicial enforcement of private causes that violate the Constitution. Edmonson, 500 U.S. at 622 (“Although private use of state-sanctioned private remedies or procedures does not rise, by itself, to the level of state action, our cases have found state action when private parties make extensive use of state procedures with ‘the overt, significant assistance of state officials.’”) (internal citations omitted).
Therefore, enforcement of a private agreement begins with a private individual does not immunize the State. See Shelley, 334 U.S. at 20 (“Nor is the Amendment ineffective simply because the particular pattern of discrimination, which the State has enforced, was defined initially by the terms of a private agreement.”). Moreover, “because a sovereign state cannot commit an unconstitutional act, a state official enforcing an unconstitutional act is not acting for the sovereign state and therefore is not protected by the Eleventh Amendment.” Okpalobi v. Foster, 244 F.3d 405, 411 (5th Cir. 2001).