The right to be free from racial discrimination is such an important right that the Supreme Court will go to almost any length to protect it, even if it means manipulating the law to obtain a desired result. The Court’s recent decision in Brentwood Academy v. Tennessee Secondary School Athletic Association suggests that the Court has added the First Amendment to the limited class of rights that it will preserve regardless of the means necessary to do so.
The rights guaranteed by the United States Constitution are protected from actions taken by only the local, state, and federal governments, and not from the actions of private individuals. As a result of the Constitution’s limited reach, for a private party to be held accountable to constitutional standards, the private party’s conduct must amount to government action. A private party will be considered a government actor when the private party’s alleged infringement of constitutional rights is “fairly attributable to the State.” The Supreme Court has identified several tests that it purports to use to determine whether a private party’s actions constitute government action, but always with the proviso that “[o]nly by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.” The effect of this caveat is that, in reality, the government-action issue is decided after examining the plaintiff’s underlying complaint, irrespective of any particular government-action test. The government-action doctrine gives the Court a mechanism for prohibiting private discrimination when the private party has at least some connection to the government. The Court rarely finds government action by a private party unless the underlying complaint is racial discrimination, which demonstrates that racial equality is at the forefront of the rights the Court most wants to protect.