APRIL 2025 | 17 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. 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. The test also contains an inherent contradiction: If an activity is truly an exclusively public function – meaning only the state has traditionally performed it – then it would be unusual for a private entity to undertake it. The very fact that a private entity is performing the function suggests it may no longer be exclusively public, if it ever was. This raises the question of why a private entity is involved in what is supposed to be an exclusive governmental role. In any event, the exclusivity criterion significantly limits the range of activities that can meet the test. The Nexus or Joint Action Test The next test – the nexus or joint action test – is more direct in its approach. It evaluates whether the relationship between the state and the private party’s conduct is sufficiently close to warrant attributing the private party’s actions to the state. The U.S. Supreme Court’s Burton v. Wilmington Parking Authority decision provides an instructive illustration. In this case, the U.S. Supreme Court ruled that the discriminatory actions of a privately owned restaurant, which refused service to a Black customer, could be deemed state action due to the close relationship between the restaurant and the Wilmington Parking Authority, a state agency. The Wilmington Parking Authority had leased public property to the restaurant and provided various forms of support, establishing a connection where the restaurant’s operations were closely interconnected with the state’s interests. But the court cautioned that while many relationships might appear to fall within the scope of the 14th Amendment, differences in circumstances result in differing outcomes, perhaps limiting the ruling’s application specifically to lessees of public property.7 Another application of this test is when a private party uses state legal procedures to deprive another party of property or when the private party is a “willful participant in joint activity with the State or its agents.”8 This was first exemplified in Lugar v. Edmondson Oil Co., in which the U.S. Supreme Court held that a private creditor that secured a prejudgment attachment of the petitioner’s property through state procedures was a state actor. The petitioner argued that this action deprived him of his property without due process of law. The court determined that because Edmondson Oil had invoked state procedures and engaged state officials in attaching the property, its actions were attributable to the state. The court reasoned that when private parties use state procedures to deprive individuals of their property, those actions create a sufficient nexus to be considered state action.9 By examining the relationship between the state and the private entity, the nexus or joint action test ensures that actions involving significant state involvement or cooperation do not escape the protections of constitutional rights. This test demonstrates the underlying principle that the state cannot insulate itself from constitutional obligations by merely acting through private parties. The State Compulsion Test The state compulsion test is another test used to determine when a private party’s actions can be attributed to the state. This test applies when the state has either exercised coercive power or provided significant encouragement, effectively making the private party’s conduct an extension of state action. The case of Blum v. Yaretsky illustrates that in applying the state compulsion test, mere state regulation – like with the public function test – is insufficient to attribute private actions to the state. Private decisions, even in a heavily regulated context, must be directly influenced or compelled by the state to be considered state actions. In Blum, the court held that the decisions of privately owned nursing homes to discharge or transfer Medicaid patients do not constitute state action under the 14th Amendment. The issue arose from a class action lawsuit by Medicaid patients who challenged the lack of procedural safeguards in such decisions, arguing that these actions were attributable to the state due to extensive regulation and state funding. The court reasoned that while the nursing homes were subject to state regulation and received state funding, the decisions to discharge or transfer patients were ultimately made by private parties based on medical judgments and, thus, could not be attributed to the state.10 On the other hand, in Peterson v. City of Greenville, the U.S. Supreme Court held that a restaurant’s refusal to serve Black patrons was
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