110 Iowa L. Rev. Online 167 (2024)

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Abstract

Professor David Gray’s Article, The Fourth Amendment State Agency Requirement: Some Doubts, convincingly argues that the Fourth Amendment was not intended to be limited to government actors. He shows that the Supreme Court’s decision to impose a state action requirement is intertwined with America’s history and legacy of racism. He then offers a note of optimism, suggesting that the Court may eventually be inclined to scrap its state agency doctrine not only from the Fourth Amendment but also from the Fourteenth Amendment. This Essay dispels such optimism and argues that it would be disastrous for the present Supreme Court to reverse the state action requirement in the Fourteenth Amendment context. Over the last fifty years, this Court’s precedents have inverted the Fourteenth Amendment into a protection against “anti-white racism,” prohibiting government entities at the state and federal levels from rectifying the past and present harms of American racism. Then in 2023, the Court significantly extended its anti-white racism bulwarks into the private sphere, prohibiting any entity involved in interstate commerce from implementing any race conscious remedial measures. Against this backdrop, undoing the state action requirement would only serve to harm remedial endeavors and endanger individuals that seek to promote antiracism.