2. Private Conduct
Given the breadth of the definition of "racial discrimination" under Article 1(1), the obligation imposed on States Parties in Article 2(1)(d) to bring to an end all racial discrimination "by any persons, group or organization," and the specific requirements of paragraphs 2(1)(c) and (d) as well as Articles 3 and 5, the Convention may be viewed as imposing a requirement on a State Party to take action to prohibit and punish purely private conduct of a nature generally held to lie beyond the proper scope of governmental regulation under current U.S. law.
Fourteenth Amendment
Since the time of the Civil Rights Cases, 109 U.S. 3 (1883), the U.S. Supreme Court has consistently held that the Fourteenth Amendment does not reach purely private conduct. Thus, the Fourteenth Amendment can only be invoked to protect against conduct that is the result of "state action." The state action requirement of the Equal Protection Clause reflects a traditional recognition of the need to preserve personal freedom by circumscribing the reach of governmental intervention and regulation, even in situations where that personal freedom is exercised in a discriminatory manner.
In determining whether "state action" is present in a given case, the critical inquiry under U.S. domestic law is whether the conduct of a private party is "fairly attributable" to the state. Lugar v. Edmonson, 457 U.S. 922, 937 (1982). Under that test, mere governmental involvement with private parties is often insufficient to trigger a finding of state action. For example, in and of itself, government licensing and regulation of private entities is not state action. Moose Lodge No. 107 v. Irvins, 407 U.S. 163 (1972) (licensing); Jackson v. Metropolitan Edison, 419 U.S. 345 (1974) (regulation). The same is true for government contracting. Blum v. Yaretsky, 457 U.S. 991 (1982). However, state employees acting under color of law are generally considered "state actors." West v. Atkins, 487 U.S. 42 (1988). In addition, the Supreme Court has held that the following constitute state action: the private performance of "public functions," Marsh v. Alabama, 326 U.S. 501 (1946); judicial enforcement of private discriminatory arrangements such as restrictive covenants on property, Shelley v. Kraemer, 334 U.S. 1 (1948); certain forms of governmental assistance or subsidies to private parties, Norwood v. Harrison, 413 U.S. 455 (1973); and state encouragement of discrimination by private parties, Reitman v. Mulkey, 387 U.S. 369 (1967).
Thirteenth Amendment
On the other hand, the Thirteenth Amendment's prohibition against slavery and involuntary servitude encompasses both governmental and private action. Civil Rights Cases, 109 U.S. 3, 20 (1883). The U.S. Supreme Court has held that Congress may regulate private conduct under sec. 2 of the Thirteenth Amendment, which provides that "Congress shall have the power to enforce this article by appropriate legislation." Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). Such power includes determining what constitutes the "badges and incidents of slavery and the authority to translate that determination into effective legislation." See also United States v. Kozminski, 487 U.S. 931, 942 (1988) (discussing Thirteenth Amendment right to be free from involuntary servitude).
Although Jones could be read as authorizing Congress to regulate a broad array of harms on
the ground that they were a form of servitude and slavery, the Court has not had the opportunity to define the outer limits of Jones. The Court has intimated, however, that "some private discrimination ... in certain circumstances" is subject to legislation under Section 2 of the Thirteenth Amendment. See Norwood v. Harrison, 413 U.S. 455, 470 (1973). For instance, the Reconstruction Era civil rights statutes discussed above (42 U.S.C. sec. 1981, 1982 and 1983, which create a cause of action against any person who, acting under color of state law, abridges rights created by the Constitution), have been used to prohibit private actors from engaging in racial discrimination in a variety of activities, including the sale or rental of private property, see Jones, 392 U.S. at 413; the assignment of a lease, see Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969); and the grant of membership in a community swimming pool, see Tillman v. Wheaton-Haven Recreation Ass'n. Inc., 410 U.S. 431 (1973); the making and enforcement of private contracts, see Patterson v. McLean Credit Union, 491 U.S. 164, 272 (1989); see also Runyon v. McCrary, 427 U.S. 160 (1976) (reaching refusal of private school to admit Black students). Finally, section 1985(3) has been applied to some private conspiracies. Compare Bray v. Alexandria Women's Health Clinic, 506 U.S. 263 (1993) (demonstration against abortions clinics was not within the scope of statute) with Griffin v. Breckenridge, 403 U.S. 88 (1971) (conspiracy to deprive Blacks of right of interstate travel was within the reach of statute).
