APRIL 2025 | 15 THE OKLAHOMA BAR JOURNAL 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. actions must comply with constitutional protections, just as if the government itself was acting directly. The doctrine evolved largely in response to the limitations revealed by the Civil Rights Cases of 1883. In those cases, the U.S. Supreme Court held that the 14th Amendment did not apply to private acts of discrimination by privately owned businesses. But that left a gap in constitutional protections where state involvement, though ostensibly absent, was actually driving private conduct. Critical to determining whether a nominally private person or entity has engaged in state action is whether that action is “fairly attributable to the State.”3 The U.S. Supreme Court has developed several tests to make this determination. These tests include: 1) Public Function Test: This test asks whether the private entity is performing a function that is traditionally and exclusively the prerogative of the state, such as running elections or operating a town. 2) Nexus or Joint Action Test: This test examines whether there is a close relationship between the state and the private entity, such that the private entity’s actions can be considered those of the state. This could include situations where the state and the private entity are working together or where the state has a significant influence on the private entity’s actions. 3) State Compulsion Test: Under this test, a private entity may be considered a state actor if the state has coerced, compelled or significantly encouraged the private conduct in question. 4) Entwinement Test: This test considers whether the state is so entwined with the private entity’s operations that the private entity’s actions can be seen as those of the state, often taking into account factors like governance, regulation and oversight.
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