Dusting Off the Old Play Book: How the Supreme Court Disregarded the Blum Trilogy, Returned to Theories of the Past, and Found State Action through Entwinement in Brentwood Academy v. Tennessee Secondary School Athletic Ass'N

Abstract

INTRODUCTION|Suppose Tom, a state employee, prohibits Mary, an antiabortion protester, from picketing outside a building located on state-owned property. Tom's actions violate Mary's Fourteenth Amendment rights, which guarantee she will not suffer from discipline handed down by a state without adequate protection of her due process rights. However, if Bob, a private individual, attempts to prevent Mary from conducting a similar protest outside a building that he owns privately, the United States Constitution provides no relief for Mary; Bob, not acting on behalf of the state, did not infringe on any of Mary's constitutional rights. Each of these hypothetical situations represents an extreme end of the state action spectrum. Most scenarios, however, fall somewhere in the middle of the spectrum, where the question of whether state action exists is blurred and the seemingly private actor appears to act on behalf of the state. In 1982, the United States Supreme Court defined the boundaries of state action analyses in Rendell-Baker v. Kohn, Blum v. Yaretsky, and Lugar v. Edmondson Oil Co., collectively referred to as the Blum Trilogy. Through those cases, the Court introduced three principles by which it analyzed state action claims: the symbiotic relationship...