REITMAN v. MULKEY 387 U.S. 369 (1967)

By an overwhelming majority, California's voters adopted an initiative measure ("Proposition 14") adding to the state constitution a provision repealing existing open housing laws and forbidding the enactment of new ones. Following the lead of the state supreme court, the Supreme Court held, 5–4, that the circumstances of Proposition 14's adoption demonstrated state encouragement of private racial discrimination in the sale and rental of housing. Justice byron r. white, for the majority, said this encouragement amounted to state action in violation of the fourteenth amendment. Justice john marshall harlan, for the dissenters, argued that Proposition 14 merely withdrew the state from regulation of private conduct; the state court determinations of "encouragement" were not fact findings, but mistaken readings of the Supreme Court's own precedents.

Taken seriously, the Reitman decision implies an affirmative state obligation to protect against private racial discrimination in housing. The Supreme Court, far from reading the decision in this manner, has consistently rejected litigants' efforts even to invoke the "encouragement" doctrine there announced. Reitman thus lies in isolation, awaiting resurrection. But the trumpet call announcing the end of the world of state action doctrine, seemingly so close in the final years of the warren court, now seems far away.

Kenneth L. Karst
(1986)