When the defendant in a civil suit is a government agency or officer, the state action inquiry is attenuated: government agencies and officials must observe the constitutional rights and prerogatives of the citizenry.(24) Until very recently, however, it was unclear whether a governmental entity could avoid its constitutional obligations simply by incorporating a "private" company to execute a public policy.
If the defendant is a governmental officer, agency, or instrumentality, the state action inquiry is at an end: state action is present.(60)
Although the Supreme Court has established a number of different formulations of the state action inquiry at this level, three basic tests have emerged: (1) the exclusive government function test; (2) the symbiotic relationship test; and (3) the nexus test.
Circuit engaged in an open-ended state action inquiry in Franz v.
Only by expanding the state action inquiry - thereby requiring the lower federal courts to cast their analytical nets more broadly - can actions "fairly attributable to the State" be identified accurately.
Cases involving nominally "private" primary and secondary schools might also have been resolved differently if the reviewing courts had engaged in a more open-ended state action inquiry. Rendell-Baker v.
As a practical matter, the state action tests have not made state action determinations any easier although they have permitted the lower federal courts to treat the state action inquiry as a simple one.