The Rights Revolution Revisited: Institutional Perspectives On The Private Enforcement Of Civil Rights In The US [1st Edition] 1107164737, 9781107164734, 1316616509, 9781316616505, 1316691195, 9781316691199, 1316730719, 9781316730713

Table of contents :
Cover......Page 1
Half-title......Page 3
Title page......Page 5
Copyright information......Page 6
Dedication......Page 7
Table of contents......Page 9
List of figures......Page 11
List of tables......Page 12
List of contributors......Page 13
Acknowledgments......Page 19
Part I Introduction......Page 21
1 Reassessing the Rights Revolution......Page 23
Taking Stock......Page 24
The Shift to Private Enforcement of Civil Rights......Page 31
Interbranch Dynamics......Page 35
Litigation and Its Discontents......Page 38
Plan of the Book......Page 41
Part II Implementing the Rights Revolution......Page 45
2 Approaches to Enforcing the Rights Revolution: Private Civil Rights Litigation and the American Bureaucracy......Page 47
Legal versus Administrative Approaches to Civil Rights Policy Enforcement......Page 48
Bureaucratic Mobilization of Private Civil Rights Litigation......Page 51
Administrative Processes......Page 52
Shaping the Law......Page 53
Assisting the Bar......Page 54
Off to the Courts? A Comparison of Fair Employment and Fair Housing Regulation......Page 55
Employment Discrimination Regulation at the EEOC (1964–1972): Paving a Pathway to the Courts......Page 57
Fair Housing Regulation at HUD (1968–1972): Blocking a Private Legal Pathway......Page 60
The Legacy of Administration and Legal Approaches to Civil Rights Regulation......Page 63
3 Mobilizing Rights at the Agency Level: The First Interpretations of Title VII’s Sex Provision......Page 66
Legal Mobilization Framework......Page 68
Methodology......Page 70
Case and Data Selection......Page 71
EEOC Mandate......Page 72
Agency Response......Page 73
Movement Building: Individual Interpretations......Page 75
Movement Building: Delays and Denials Lead to the Formation of NOW......Page 78
The Struggle to Compel Formal Policy Changes......Page 82
The Struggle for Control over Policy Development and Implementation......Page 84
Conclusion: Agency Action and Legal Mobilization......Page 87
4 Motivating Litigants to Enforce Public Goods: Evidence from Employment, Housing, and Voting Discrimination Policy......Page 90
A Theory of Private Litigation of Public Laws......Page 92
Effect of Interest Group Environment on Lawsuit Filing......Page 98
Interest Group Strategies for Civil Rights Lawsuits......Page 103
Employment Discrimination......Page 105
Housing Discrimination......Page 107
Voting Rights......Page 114
Conclusion......Page 118
5 Regulatory Rights: Civil Rights Agencies, Courts, and the Entrenchment of Language Rights......Page 120
Civil Rights Agencies Governing by Guidance......Page 121
Courts and Agencies: Judicial Deference to Guidance’s Impact or Effect......Page 123
Schools: Integrated Remedial Model......Page 126
Workplace: Court Constraints......Page 128
Sociolegal Influences on and of the Law......Page 129
Bilingual Education in the Shadow of the Law......Page 130
Legal and Social Constraints on Workplace Policies......Page 132
Intertwining Hard and Soft Law......Page 133
Regulatory Rights Roller Coaster......Page 134
Persistence of Regulatory Rights......Page 135
Entrenchment of Nondiscrimination......Page 136
Entrenchment of Regulatory Strategies......Page 138
Ongoing Challenges to Regulatory Rights......Page 140
Conclusion......Page 142
6 Sexual Harassment and the Evolving Civil Rights State......Page 143
Controversies......Page 146
Sexual Harassment and the Civil Rights State......Page 148
Phase One: Attacking Sexual Harassment in the Workplace......Page 153
Phase Two: Sexual Harassment Regulation Goes to School......Page 160
Interlude: Disputed Foundations......Page 169
Phase Three: The Obama Initiative......Page 174
Defining “Sexual Harassment” and “Hostile Environment”......Page 175
Procedures for Soliciting, Investigating, and Resolving Complaints......Page 177
Remedial Measures to Minimize the Effects of Sexual Harassment......Page 178
Remaking School Culture......Page 179
Strengthening Internal Compliance Offices......Page 180
Conclusion......Page 184
7 The Civil Rights Template and the Americans with Disabilities Act: A Sociolegal Perspective on the.........Page 187
The Political Legacy of the CRA: The Enduring Bipartisan Appeal of the Civil Rights Template......Page 189
Stretching The Civil Rights Template......Page 193
The “Structural Turn” in Civil Rights Scholarship......Page 194
The Sociolegal Model......Page 197
Disability Access Law and the Policy Legacy of the Civil Rights Template......Page 200
The Ostriches......Page 203
The Recalcitrant Compliers......Page 204
The Symbolic Responders......Page 205
The “Beyond Compliance” Responders......Page 206
The Ad Hoc Service Providers......Page 207
The Seekers......Page 208
Formal Rights Versus Organizational Translations......Page 209
Litigation Makes a Difference, But Its Impact Varies......Page 211
Variation Not Averages......Page 212
An Organizational Turn?......Page 213
Part III Rights and Retrenchment......Page 215
The Rise of Civil Rights Litigation......Page 217
The Reagan Administration......Page 221
Litigation Retrenchment Proposals in Congress......Page 225
The Failure of the Legislative Project of Litigation Retrenchment......Page 229
The Alternative Pathway of Courts......Page 233
The Supreme Court’s Response......Page 234
Why the Court Succeeded Where Republican Presidents and Congress Failed......Page 241
Conclusion......Page 243
9 The Contours of the Supreme Court’s Civil Rights Counterrevolution......Page 244
Early Civil Rights Retrenchment and Reform......Page 246
Getting into Court......Page 255
Proving Employment Discrimination......Page 263
Harassment and the Hostile Workplace Doctrine......Page 268
Retaliating against Retaliation......Page 274
The Fate of Disparate Impact......Page 282
Assessing the Supreme Court’s Counterrevolution......Page 285
10 Constraining Aid, Retrenching Access: Legal Services after the Rights Revolution......Page 287
The Origins of Legal Aid......Page 291
The Legal Services Corporation and the Politics of Government-Sponsored Legal Aid......Page 294
“Defunding” and the Beginnings of Political Backlash......Page 299
Shifting the Focus: From Defunding to Legal Procedural Restrictions......Page 303
Privatizing Enforcement Further......Page 308
Part IV The Future of the Rights Revolution......Page 313
11 Rationalizing Rights: Political Control of Litigation......Page 315
The Trouble with Litigation: The Calibration Challenge......Page 318
More Trouble with Litigation: (Non-)Coordination and Legislative (In-)Fidelity......Page 321
The Failure of the Usual “Litigation Reforms”......Page 325
The Agency “Gatekeeper” Alternative......Page 331
Agency Gatekeeping in Action: Rethinking Job Discrimination Regulation......Page 334
Conclusion......Page 340
The Rights Revolution in an Era of Deepening Polarization......Page 342
Advancing the Rights Revolution......Page 354
Promoting Synergies Between Agency and Private Enforcement of Civil Rights......Page 358
Improving Access to Justice......Page 361
Bringing the People Back In......Page 363
Books and Articles......Page 369
Index......Page 395

Citation preview

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The Rights Revolution Revisited The rights revolution in the United States consisted of both sweeping changes in constitutional doctrines and landmark legislative reform, followed by decades of innovative implementation in every branch of the federal government – Congress, agencies, and the courts. In recent years, a growing number of political scientists have sought to integrate studies of the rights revolution into accounts of the contemporary American state. In The Rights Revolution Revisited, a distinguished group of political scientists and legal scholars explore the institutional dynamics, scope, and durability of the rights revolution. By offering an interbranch analysis of the development of civil rights laws and policies that features the role of private enforcement, this volume enriches our understanding of the rise of the “civil rights state” and its fate in the current era. Lynda G. Dodd is the Joseph H. Flom Professor of Legal Studies and Political Science at the City University of New York, City College. She graduated from Yale Law School in 2000, completed a PhD in Politics at Princeton University in 2004, and was a member of the law school faculty at American University’s Washington College of Law from 2005 to 2010. Her book, Taming the Rights Revolution: The Supreme Court, Constitutional Torts, and the Elusive Quest for Accountability, examines the history of civil rights litigation under Section 1983 and will be published by Cambridge University Press.

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The Rights Revolution Revisited Institutional Perspectives on the Private Enforcement of Civil Rights in the US Edited by

LYNDA G. DODD

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University Printing House, Cambridge CB2 8BS, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 79 Anson Road, #06-04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781107164734 DOI: 10.1017/9781316691199 © Cambridge University Press 2018 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2018 Printed in the United States of America by Sheridan Books, Inc. A catalogue record for this publication is available from the British Library. ISBN

978-1-107-16473-4 Hardback

Cambridge University Press has no responsibility for the persistence or accuracy of URLs for  external or third-party internet websites referred to in this publication and does not guarantee  that any content on such websites is, or will remain, accurate or appropriate.

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For Matthew

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Contents

List of Figures

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List of Tables

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List of Contributors

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Acknowledgments Part I Introduction 1

Reassessing the Rights Revolution Lynda G. Dodd

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Part II Implementing the Rights Revolution 2

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Approaches to Enforcing the Rights Revolution: Private Civil Rights Litigation and the American Bureaucracy Quinn Mulroy

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Mobilizing Rights at the Agency Level: The First Interpretations of Title VII’s Sex Provision Jennifer Woodward

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Motivating Litigants to Enforce Public Goods: Evidence from Employment, Housing, and Voting Discrimination Policy Paul Gardner

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Regulatory Rights: Civil Rights Agencies, Courts, and the Entrenchment of Language Rights Ming Hsu Chen

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Contents

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Sexual Harassment and the Evolving Civil Rights State R. Shep Melnick

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The Civil Rights Template and the Americans with Disabilities Act: A Sociolegal Perspective on the Promise and Limits of Individual Rights Thomas F. Burke and Jeb Barnes

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Part III Rights and Retrenchment 8

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Retrenching Civil Rights Litigation: Why the Court Succeeded Where Congress Failed Stephen B. Burbank and Sean Farhang

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The Contours of the Supreme Court’s Civil Rights Counterrevolution Lynda G. Dodd

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Constraining Aid, Retrenching Access: Legal Services after the Rights Revolution Sarah Staszak

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Part IV The Future of the Rights Revolution 11

Rationalizing Rights: Political Control of Litigation David Freeman Engstrom

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The Future of Private Enforcement of Civil Rights Lynda G. Dodd

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Bibliography

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Index

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Figures

2.1

4.1 4.2 4.3 4.4 8.1 8.2 8.3 8.4

Private fair housing litigation (thin line with hollow points) and private equal employment opportunity litigation (thick line with solid points) filed in the US District Courts, 1970–2008 Cases filed by issue area, 1977–2012 Expected plaintiff and support Interest groups as mediators to litigation The effect of interest group concentration on lawsuit filings Federal civil rights litigation rate, and its share of the statutory civil docket Sum of civil rights litigation reform items sponsored and co-sponsored Case outcomes and justices votes in civil rights private enforcement cases Case outcomes and justices votes in all civil rights cases

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page 43 72 76 78 83 198 207 218 219

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3.1 Race and sex-based claims investigated, deferred, or required more information 1965–1968 3.2 Number of claims recommended for investigation 4.1 Results 4.2 Awards and fees by policy area 6.1 Title VII and Title IX sexual harassment chronology 7.1 Summary of organizations 7.2 Comparison of organizational responses: relative levels of commitment, professionalization, and routinization 7.3 Summary of access scores 8.1 Negative binomial model of legislator support for anti-private enforcement Civil Rights Provisions with Congress Fixed Effects, 1973–1980 8.2 Negative binomial coefficients for party and south in models of support for anti-private enforcement civil rights provisions, with Congress-fixed effects, by presidential administration 8.3 Percent pro-private enforcement votes in civil rights cases 8.4 Logit model of justice votes on private enforcement civil rights issues, with case fixed effects 11.1 Menu of litigation control tools 11.2 Ideal retail gatekeeper tasks

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Contributors

Jeb Barnes is an associate professor in political science at the University of Southern California, where he teaches courses on law, public policy, and institutional analysis. His writing focuses on the role of rights, courts, and litigation in the policymaking process and mixed-method research strategies. He has published numerous lawrelated articles in peer-review journals, including Law & Society Review and Law & Social Inquiry, and five books: Overruled? Legislative Overrides, Pluralism, and Contemporary Court-Congress Relations (2004), Making Policy, Making Law:  An Interbranch Perspective (2004) (co-edited with Mark C. Miller), Dust-Up: Asbestos Litigation and the Failure of Common Sense Reform (2011), Finding Pathways: MixedMethods Research for Studying Causal Mechanism (Cambridge University Press, 2014) (with Nicholas Weller), and How Policy Makes Politics: Adversarial Legalism and the Politics of the Litigation State (2014) (with Thomas F. Burke). Stephen B. Burbank is the David Berger Professor for the Administration of Justice and Professor of Law at the University of Pennsylvania Law School. He is the author of definitive works on federal court rulemaking, interjurisdictional preclusion, litigation sanctions, international civil litigation, and judicial independence and accountability. He is coeditor (with Barry Friedman) of Judicial Independence at the Crossroads: An Interdisciplinary Approach (2002). His 1982 article, “The Rules Enabling Act of 1934,” reoriented the theory and practice of court rulemaking. Burbank’s recent scholarship includes a detailed study of the Class Action Fairness Act of 2005 in historical perspective, an analysis of different approaches to the study of judicial behavior in law and political science, an article (with Sean Farhang and Bert Kritzer) on private enforcement of statutory and administrative law in the United States, an empirical study of the retirement decisions of federal judges, and a series of articles with Sean Farhang leading to a book, Rights and Retrenchment: The Counterrevolution against Federal Litigation (Cambridge University Press, 2016). Burbank was appointed by the Speaker of the US House xi

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of Representatives to the National Commission on Judicial Discipline and Removal and was a principal author of the Commission’s 1993 report. Thomas F. Burke is Professor of Political Science at Wellesley College. He has been a visiting professor at Harvard and at the University of California, Berkeley, and a research fellow at the Brookings Institution and with the Robert Wood Johnson Scholars in Health Policy Program. Burke’s research focuses on the place of rights and litigation in public policy, and the ways in which organizations respond to rights laws. He is the author with Jeb Barnes of How Policy Shapes Politics (2015), which examines the political consequences of the judicialization of politics. Burke has written about American campaign finance law, disability law, and politics both in the United States and Europe, the effects of same-sex marriage litigation on the gay and lesbian rights movement, and the challenges of scholarship on rights in politics. He has coauthored with Lief Carter five editions of Reason in Law, most recently the ninth edition (2016). His dissertation, written at University of California, Berkeley, won the American Political Science Association’s Edwin S. Corwin Award for best thesis in public law; it was published as Lawyers, Lawsuits and Legal Rights: The Struggle over Litigation in American Society (2002). Ming Hsu Chen is an associate professor of Law and Political Science at the University of Colorado in Boulder. Professor Chen’s research and teaching concern the regulation of immigration, race, and civil rights. Prior to entering legal academia, Ming clerked for the US Court of Appeals, Ninth Circuit in San Francisco. She earned a PhD in Jurisprudence and Social Policy at the University of California, Berkeley; a JD at New York University Law School; and an AB from Harvard College. Lynda G.  Dodd is the Joseph H.  Flom Professor of Legal Studies and Political Science at the City University of New  York  – City College, where her teaching and research focus on American political and constitutional development, constitutional law and theory, jurisprudence, and civil rights litigation. She graduated from Yale Law School in 2000 and completed a PhD in politics at Princeton University in 2004. She has previously worked as a litigation associate at Sidley Austin, and at the Brennan Center for Justice at the New York University School of Law. She has taught political science courses to undergraduate students at a number of universities and colleges including Princeton, Yale, and Wellesley, and she was a member of the law faculty at American University’s Washington College of Law from 2005 to 2010. Dodd’s recent scholarship examines the political and legal debates regarding civil rights litigation under Section 1983, from its origins in the Civil Rights Act of 1871 to the Roberts Court era. Currently, she is completing a book on this subject, Taming the Rights Revolution:  The Supreme Court, Constitutional Torts, and the Elusive Quest for Accountability, to be published by Cambridge University Press.

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David Freeman Engstrom is Professor of Law and Bernard D. Bergreen Faculty Scholar at Stanford Law School. His teaching and scholarship focus on the institutional design of litigation and regulatory regimes, as well as topics in administrative law, civil procedure, constitutional law, civil rights, and law and education. He recently completed the first large-scale empirical investigation of qui tam litigation under the False Claims Act. Current work includes a book examining the institutional origins and evolution of American job discrimination law. Previously, Professor Engstrom was a law clerk to Judge Diane P. Wood of the US Court of Appeals for the Seventh Circuit and a John M. Olin Fellow in Law, Economics, and Public Policy at Yale Law School. He also litigated for four years at a Washington, DC, law firm, where he represented clients before the US Supreme Court, US Courts of Appeals, and various trial courts and administrative agencies. He holds a JD from Stanford Law School, an MSc (in economic history) from Oxford University, and a PhD (in political science) from Yale University. Sean Farhang is Professor of Law and Associate Professor of Political Science and Public Policy at the University of California, Berkeley. His work focuses mainly on civil litigation, the role of litigation and courts in regulatory implementation, and the causes and consequences of choices by Congress and the Supreme Court to mobilize or demobilize private enforcement of law through litigation. He is author of The Litigation State: Public Regulation and Private Lawsuits in the U.S. (2010), which received the Gladys M. Kammerer Award from the American Political Science Association for the best book in the field of US national policy, as well as the C. Herman Pritchett award for the best book on law and courts. His articles have appeared in political science and law and social science journals, as well as law reviews. His ongoing work includes a book project with Stephen Burbank, from which their chapter to this volume was drawn, titled Rights and Retrenchment: The Counterrevolution against Federal Litigation (Cambridge University Press, 2016). The book examines the emergence and development of the political and legal movement to restrict opportunities and incentives for private enforcement of federal law through litigation. Paul Gardner is a postdoctoral fellow in the Department of Political Science at the Maxwell School of Citizenship and Public Affairs, Syracuse University, and received his PhD in politics at Princeton University in 2015. His research interests include American institutions, judicial politics, American political development, and law and society. His current book project examines the role of private litigation in American politics from statutory authorization to judicial decision, arguing that litigation opens the door for political actors, particularly interest groups, to have greater influence in federal policy enforcement.

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R. Shep Melnick is the Thomas P. O’Neill, Jr. Professor of American Politics at Boston College. He teaches a variety of courses on American politics, including courts and public policy, ideas and institutions in American politics, bureaucracy, democracy in America, rights in conflict, and the American politics graduate field seminar. Melnick’s first book, Regulation and the Courts, examined judicial influence on the development of environmental policy. His second, Between the Lines, investigated the ways in which statutory interpretation has shaped a variety of entitlement programs. His current research project looks at how the Rehnquist Court has reshaped our governing institutions. Melnick is co-chair of the Harvard Program on Constitutional Government and a past president of the New England Political Science Association. Before coming to Boston College in 1997, he had taught at Harvard and at Brandeis, where he served as chair of the Politics department. Melnick was educated at Harvard University, where he received a bachelor’s degree in social studies in 1973, a master’s in political science in 1978, and a doctorate in political science in 1980. He also has been associated since 1978 with the Brookings Institution. Quinn Mulroy is an assistant professor in the School of Education & Social Policy and (by courtesy) Department of Political Science, at Northwestern University, as well as a faculty associate at the Institute for Policy Research, Northwestern University. Her research operates at the intersection of American politics, public policy, law and society, public administration, civil rights and environmental policy, and American political development. Her research engages central questions on the development of policymaking and policy implementation in the United States and has been published in the Journal of Politics and Studies in American Political Development. Her current book project investigates the role of private power, particularly that supplied by private litigation, in the American regulatory state, and uses qualitative and quantitative approaches to explore how and under what conditions regulatory agencies mobilize private actors to engage in litigation that advances regulatory goals. This project has received two awards from the American Political Science Association: the 2012 Leonard White Best Dissertation Award and the 2012 Best Conference Paper Award from the Law and Courts section. Mulroy received her PhD in political science from Columbia University in 2012. Her research has been recognized with fellowships and/or grants from the Miller Center for Public Affairs at the University of Virginia (National Fellow in Politics and History), the American Bar Foundation (Visiting Scholar), the Institute for Social and Economic Research and Policy at Columbia University (Mellon Interdisciplinary Graduate Fellow), and the Horowitz Foundation for Social Policy.

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Sarah Staszak received her PhD in political science from Brandeis University in 2010 and is a research associate professor at Princeton University. From 2013 to 2015, she was a Robert Wood Johnson Foundation scholar in Health Policy Research at Harvard University and from 2012 to 2016 an assistant professor in the Department of Political Science at the City University of New York – City College. Her research interests are at the intersection of American politics, public policy, and public law, and she teaches courses on American political institutions, law and policy, and the American state. Her book, No Day in Court: Access to Justice and the Politics of Judicial Retrenchment (2015), examines the politics and implications of the efforts to constrain access to courts and the legal system as they have unfolded in the years since the expansions of the civil rights era, and a chapter was awarded the American Judicature Award by the Law and Courts Section of the American Political Science Association in 2010. She is currently working on two projects: one that focuses on the growing use of arbitration for medical malpractice and in lieu of tort litigation more broadly, and another which examines the enforcement mechanisms for the provision of the American with Disabilities Act mandating that individuals with mental illness have a right to live in the community rather than in state institutions. Jennifer Woodward is a research fellow at the Rockefeller College of Public Affairs and Policy’s Center for Policy Research. Her scholarship focuses on the development and implementation of civil rights laws in education and employment. By looking at the potential of law, courts, and government agencies to shape and be shaped by society, she evaluates the everyday encounters between individuals and the laws designed to protect them. During her career, Woodward has worked at the College of William and Mary, American Bar Foundation, New York Latino Research and Resources Network, New York State Department of Civil Service, and the University at Albany, State University of New York, where she received her doctorate in 2013. Her prior research includes publications on the implementation of school desegregation in Nashville-Davidson County, Tennessee, and bilingual education laws in New York. Currently, Woodward is working on projects related to the early interpretations of Title VII of the Civil Rights Act of 1964, the institutional capacity of the Equal Employment Opportunity Commission, and the importance of teaching pedagogy in higher education.

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Acknowledgments

This volume grew out of the “The Rights Revolution Revisited” workshop held at The City College of New York in 2012. As part of the two-day workshop, Thomas F. Burke, Charles Epp, Sean Farhang, Michael McCann, Shep Melnick, Quinn Mulroy, and Sarah Staszak presented their ongoing work on legal mobilization and the private enforcement of civil rights. Sean Farhang also delivered the D’Agostino Lecture in Law and Public Policy, and Charles Epp presented the Boudin Lecture in Civil Liberties. I thank them for their participation and for the lively and productive discussion. We are also grateful to the Skadden, Arps Honors Program in Legal Studies, the Department of Political Science, and the D’Agostino/Greenberg Program for their generous support of the workshop. Many of the contributors gathered together regularly as this volume began to take shape. In 2013, Jeb Barnes, Thomas F. Burke, Lynda Dodd, Charles Epp, Sean Farhang, and Quinn Mulroy presented their scholarship on rights enforcement and retrenchment at the annual meeting of the Law and Society Association. David Freeman Engstrom joined the project in 2014, and Ming Hsu Chen, Paul Gardner, and Jennifer Woodward in 2015. In 2015, Paul Gardner chaired and presented on a panel on private enforcement with Jeb Barnes, Lynda Dodd, Sean Farhang, Shep Melnick, and Quinn Mulroy at the annual meeting of the American Political Science Association. Thanks to all of the contributors’ efforts at each stage, our dialogue was transformed into a book project about the institutional dynamics of the rights revolution. We would especially like to thank Michael McCann and Charles Epp for their incisive suggestions, and our editor Matthew Gallaway and the reviewers for Cambridge University Press for their insights and encouragement as we completed our chapters for this book.

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Part I

Introduction

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1 Reassessing the Rights Revolution Lynda G. Dodd

Today the “rights revolution” of the 1960s and 1970s is most often associated with the changes ushered in by the Supreme Court’s 1954 opinion in Brown v. Board of Education, the doctrinal innovations of the Warren Court, and the transformative civil rights legislation of the 1960s, especially the Civil Rights Act of 1964 and the Voting Rights Act of 1965.1 The rights revolution developed in the wake of a sustained popular mobilization, but the institutional reforms that followed were, as one commentator puts it, “led by the Establishment.”2 The rights revolution consisted of both sweeping changes in constitutional doctrines and landmark legislative reform, followed by decades of innovative implementation in every branch of the federal government – Congress, agencies, and the courts. In recent years, a growing number of political scientists have sought to integrate studies of the rights revolution’s implementation into accounts of the contemporary American state. The central purpose of this volume is to gather some of the most innovative analyses of the civil rights state to explore the institutional dynamics, scope, and durability of the rights revolution. This reassessment of the rights revolution highlights the institutional turn in the political science scholarship on civil rights enforcement. The contributions to this volume evaluate the role of

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See, e.g., Mark Tushnet, “The Rights Revolution in the Twentieth Century,” in The Cambridge History of Law in America, Vol. III – The Twentieth Century and After, eds. Michael Grossberg and Christopher Tomlins (Cambridge: Cambridge University Press, 2008), 377–402; Lucas Scot Powe Jr., The Warren Court and American Politics (Cambridge, MA: Harvard University Press, 2000); Hugh Davis Graham, The Civil Rights Era:  Origins and Development of National Policy, 1960–1972 (New  York:  Oxford University Press, 1990); Charles R. Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (Chicago, IL: University of Chicago Press, 1998); Charles R. Epp, “Courts and the Rights Revolution,” in Institutions of American Democracy: The Judicial Branch, eds. Kermit L. Hall and Kevin T. McGuire (New York: Oxford University Press, 2006), 343–374. John D.  Skrentny, The Minority Rights Revolution (Cambridge, MA:  Harvard University Press, 2002), 2.

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Lynda G. Dodd

federal government institutions – Congress, the executive branch, and the federal courts – in strengthening or undermining the private enforcement regime that has taken hold since the 1960s. While the contributors to this volume draw upon a rich sociolegal literature on civil rights litigation and its impact, they are particularly influenced by scholarship in the American political development tradition that is “ ‘polity centered,’ foregoing explanatory privilege to either social interests or the state and looking instead at what is up and running, which is the full array of organized interactions between the two.”3

Taking Stock In recent years, the fiftieth anniversaries of many of these landmark Johnson-era civil rights bills and the twenty-fifth anniversary of the Americans with Disabilities Act (ADA) of 1990 have inspired a wide-ranging discussion concerning the legacy and impact of the rights revolution. Leading trade publishers have issued an impressive crop of books describing the enactment of these landmark civil rights bills and assessing their legacy,4 and scholars in a range of disciplines have offered synthetic accounts of the impact of the rights revolution.5 President Obama delivered major 3

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Karen Orren and Stephen Skowronek, The Search for American Political Development (New York: Cambridge University Press, 2004), 80 (emphasis added). See, e.g., Clay Risen, The Bill of the Century: The Epic Battle for the Civil Rights Act (New York: Bloomsbury Press, 2014); Todd S. Purdum, An Idea Whose Time Has Come: Two Presidents, Two Parties, and the Battle for the Civil Rights Act of 1964 (New York: Henry Holt, 2014); Gary May, Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy (New York: Basic Books, 2013); Ari Shapiro, Give Us the Ballot: The Modern Struggle for Voting Rights in Modern America (New York: Farrar, Strauss, and Giroux, 2014); Julian E. Zelizer, The Fierce Urgency of Now: Lyndon Johnson, Congress, and the Battle for the Great Society (New York: Penguin Books, 2015); Caroline Frederickson, Under the Bus: How Working Women Are Being Run Over (New York: The New Press, 2015); Gillian Thomas, Because of Sex: One Law, Ten Cases, and Fifty Years that Changed American Women’s Lives at Work (New York: St. Martin’s Press, 2016); Lennard J. Davis, Enabling Act: The Hidden Story of How the Americans with Disabilities Act Gave the Largest U.S. Minority Its Rights (Boston, MA: Beacon Press, 2015). See, e.g., Gavin Wright, Sharing the Prize: The Economics of the Civil Rights Revolution in the American South (Cambridge, MA:  Harvard University Press, 2013); Jenny Bourne, “ ‘A Stone of Hope’:  The Civil Rights Act of 1964 and Its Impact on the Economic Status of Black Americans,” Louisiana Law Review 74 (2014): 1195–1225. Others have emphasized challenges that have remained or worsened for the intended beneficiaries of the rights revolution. Kevin Stainback and Donald Tomaskovic-Devey’s book, Documenting Desegregation:  Racial and Gender Segregation in Private Sector Employment Since the Civil Rights Act (New York: Russell Sage Foundation, 2012), is the first comprehensive scholarly analysis of the Equal Employment Opportunity (EEO) data compiled by the EEOC since 1966. They provide a compelling overview of the trends in occupational desegregation in the private sector. Black men experienced gains very early and through the 1970s, but the trajectory of progress ended after that. Women, especially white women, entered more fields in the 1970s, and began to assume positions at higher levels in the 1980s. See also Rogers M. Smith and Desmond King, Still a House Divided:  Race and Politics in Obama’s America (Princeton, NJ:  Princeton University Press, 2011);

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addresses about the rights revolution and its legacy,6 which were widely covered by journalists and policy analysts who weighed in with ambitious assessments of their own.7 Leading civil rights organizations issued reports and renewed calls for reform.8 It has been a time for taking stock and offering appraisals for the future. The rights revolution produced several indisputable and significant victories. The Voting Rights Act of 1965 succeeded in registering hundreds of thousands of black voters soon after its passage and helped to increase the number of black, Latino, and Asian American elected officials in the United States.9 Another unassailable success is the Civil Rights Act of 1964’s removal of racial restrictions in public accommodations via Title II, which “ ‘tore old Dixie down’ almost overnight.”10 Since the passage of the Title VII, African Americans across the nation also began to move into skilled, service, and professional occupations, creating a larger black middle class.11 In 1966, 78 percent of African American men worked in low-skilled jobs12;

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Nancy DiTomaso, The American Non-Dilemma: Racial Inequality without Racism (New York: Russell Sage Foundation, 2013); Doug McAdam and Karina Kloos, Deeply Divided: Racial Politics and Social Movements in Postwar America (New York: Oxford University Press, 2014); Deborah L. Rhode, What Women Want: An Agenda for the Women’s Movement (New York: Oxford University Press, 2014). See, e.g., President Obama, “Remarks at the Lyndon B.  Johnson Presidential Library Civil Rights Summit in Austin, Texas,” April 10, 2014. Online by Gerhard Peters and John T. Woolley, The American Presidency Project, available at www.presidency.ucsb.edu/ws/?pid=105105; “Remarks Commemorating the 50th Anniversary of the Selma to Montgomery Marches for Voting Rights in Selma, Alabama,” March 7, 2015. Online by Gerhard Peters and John T.  Woolley, The American Presidency Project, available at www.presidency.ucsb.edu/ws/?pid=109728. See, e.g., Michael A.  Flether, “Fifty Years after March on Washington, Economic Gap between Blacks, Whites Persists,” Washington Post, August 28, 2013; Thomas Shapiro, Tatjana Meschede, and Sam Osoro, The Roots of the Widening Racial Wealth Gap: Explaining the Black-White Economic Divide (Institute on Assets and Social Policy, Boston, MA:  Brandeis University, 2013), http://iasp .brandeis.edu/pdfs/Author/shapiro-thomas-m/racialwealthgapbrief.pdf; Richard Rothstein, The Making of Ferguson: Public Policies at the Root of Its Troubles (Washington, D.C.: Economic Policy Institute Report, 2014), www.epi.org/files/2014/making-of-ferguson-final.pdf. See, e.g., African American Leaders Convening (AALC), 21st Century Agenda for Jobs and Freedom (August 21, 2013), available at http://iamempowered.com/21st-century-agenda-for-jobs-and-freedom; Joint Center for Political and Economic Studies, 50 Years after the Voting Rights Act: The State of Race in Politics (March 3, 2016), available at http://jointcenter.org/sites/default/files/VRA%20report%2C%20 8.5.15%20%28540%20pm%29%28updated%29.pdf; Center for American Progress, All-in Nation:  An America that Works for All, eds. Vanessa Cárdenas and Sarah Treuhauft (2013), available at www .americanprogress.org/wp-content/uploads/2013/07/AllInNation.pdf. Joint Center, 50 Years after the Voting Rights Act, 8–10, 24–34. Hugh Davis Graham, “Since 1964:  The Paradox of American Civil Rights Regulation,” in Taking Stock:  American Government in the Twentieth Century, eds. Morton Keller and R.  Shep Melnick (New York: Cambridge University Press, 1999), 195; Wright, Sharing the Prize, ch. 3. Stainback and Tomaskovic-Devey, Documenting Desegregation, chs. 1–4; Flether, “Fifty Years after March on Washington, Economic Gap between Blacks, Whites Persists” (defining middle class as households earning over $100,000 per year and observing these African American households have grown fivefold since the early 1960s). Stainback and Tomaskovic-Devey, Documenting Desegregation, 52–53 (tallying numbers for operative, laborer, and service occupations).

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62  percent of white women worked in clerical jobs.13 Fifty years later, such stark occupational segregation no longer exists. Serious racial disparities have endured, however. According to data collected by the Equal Employment Opportunity Commission (EEOC), in 2014, white males held 521,941 senior level executive and management positions, while only 13,647 African American males had obtained such roles in the workplace.14 The wage gap between African American and white workers in 2012 was over 30 percent (larger than the often-discussed gender wage gap).15 Researchers have estimated that discrimination accounts for at least one-third of this black–white wage gap.16 Another major cause is the widening of the racial gap in educational attainment. The 10 percent gap in those receiving a college degree in 1970 had widened to a seventeenpoint gap in 2012, when 21 percent of black thirty-year olds had received a college degree, compared to 38 percent of whites.17 During these same decades, the racial wealth gap has also widened. According to the Pew Research Center, in 2009 the median wealth of white households was “20 times that of black households and 18 times that of Hispanic households.”18 A core cause of this widening wealth gap is home ownership.19 In 2014, only 44 percent of African American families owned a home, compared to 73 percent of white families.20 According to a 2016 report, African American children are much more likely than white children to live in areas of concentrated poverty,21 and housing

13 14

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21

Ibid. Black women were clustered in three categories: clerical, operative, and service occupations. EEOC, “2014 EEO-1 National Aggregate Report: Job Patterns for Minorities and Women in Private Industry,” www1.eeoc.gov/eeoc/statistics/employment/jobpat-eeo1/2014/index.cfm#select_label. Flether, “Fifty Years after March on Washington, Economic Gap between Blacks, Whites Persists” (“In 1963, black families earned 55 cents for every dollar earned by whites. In 2011, blacks earned 66 cents for every dollar earned by whites.”) Roland G.  Fryer, Jr., Devah Pager, and Jorg L.  Spenkuch, “Racial Disparities in Job Finding and Offered Wages,” Journal of Law and Economics 56 (2013): 633–689. David J. Deming, Noam Yuchtman, Amira Abulafi, Claudia Goldin, and Lawrence F. Katz, “The Value of Postsecondary Credentials in the Labor Market:  An Experimental Study,” American Economic Review 106 (2016): 778–806. Rakesh Kochar, Richard Fry, and Paul Taylor, Wealth Gaps Rise to Record Highs between Whites, Blacks, Hispanics (Washington, DC: Pew Research Center, 2011), 1, available at www.pewsocialtrends .org/files/2011/07/SDT-Wealth-Report_7-26-11_FINAL.pdf (analyzing 2009 data from the US Census Bureau’s Survey of Income and Program Participation [SIPP]). Shapiro et al., The Roots of the Widening Racial Wealth Gap, 2; Kochar et al, Wealth Gaps Rise to Record Highs, 5. Joint Center for Housing Studies of Harvard University, The State of the Nation’s Housing: 2014, available at www.jchs.harvard.edu/sites/jchs.harvard.edu/files/sonhr14-color-full.pdf Anne E. Casey Foundation, Kids Count Data Book: State Trends in Child Well-Being (2016), 35, available at www.aecf.org/2016db (using US Census data, showing 32 percent of African American, 24 percent of Latino, and 5 percent of white children live in census tracts with poverty rates of 30 percent or higher).

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segregation has contributed to resegregation of public schools22 and higher unemployment rates.23 Compared to white men, in 2015–2016 black men experienced unemployment rates that were twice as large, a disparity that is nearly as stark for black women.24 The black–white unemployment gap has not budged in over four decades, and a gap persists even among individuals with similar levels of education.25 Finally, the incarceration rates for African American males are more than six times that of white males,26 and reports of unemployment rates and labor statistics fail to acknowledge the distortions in the data due to mass incarceration.27 Despite all the current talk of “leaning in” and “the rise of women,” serious challenges remain for women’s equality as well.28 More than fifty years after the passage of the Equal Pay Act of 1963 and the Civil Rights Act of 1964, women in the United States earn 78  percent of what men are paid. Among them, African 22

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See, e.g., Annette Lareau and Kimberley Goyette, eds. Choosing Homes, Choosing Schools (New  York:  Russell Sage Foundation, 2014); Erica Frankenberg and Gary Orfield, eds., The Resegregation of Suburban Schools:  A Hidden Crisis (Cambridge, MA:  Harvard Education Press, 2012); Gary Orfield and Susan E. Eaton, Dismantling Desegregation: The Quiet Reversal of Brown v. Board of Education (New York: The New Press, 1997). See, e.g., Patrick Sharkey, Stuck in Place: Urban Neighborhoods and the End of Progress toward Racial Equality (Chicago, IL: University of Chicago Press, 2013); Douglas S. Massey and Nancy A. Denton, American Apartheid:  Segregation and the Making of the Underclass (Cambridge, MA:  Harvard University Press, 1993); William Julius Wilson, When Work Disappears: The World of the New Urban Poor (New York: Vintage Books, 1997). Bureau of Labor Statistics, Table A-2. Employment Status of the Civilian Population by Race, Sex, and Age (2015–2016), available at www.bls.gov/news.release/empsit.t02.htm Neil Irwin, Claire Cain Miller, and Margot Sanger-Katz, “The Upshot:  America’s Racial Divide, Charted.” New  York Times, August 19, 2014, available at www.nytimes.com/2014/08/20/upshot/ americas-racial-divide-charted.html?abt=0002&abg=0 (5.7  percent unemployment rate for African Americans with a bachelor’s degree or higher, compared to 3.5 percent for whites with the same level of education). Pew Research Center, “King’s Dream Remains Elusive:  Many Americans See Racial Disparities,” August 22, 2013, available at www.pewsocialtrends.org/2013/08/22/kings-dream-remains-an-elusivegoal-many-americans-see-racial-disparities/4/#incarceration-rate (comparing figures from 1960, showing five times the rate, with 2010, showing over six times the rate). Jeff Guo, “America Has Locked Up So Many Black Men It Has Warped Our Sense of Reality,” Washingtonpost.com Wonkblog, February 26, 2016, available at www.washingtonpost.com/news/ wonk/wp/2016/02/26/america-has-locked-up-so-many-black-people-it-has-warped-our-sense-of-reality/. As Guo points out, the unemployment rates would be far worse  – almost triple that of whites  – if prisoners were included. See Becky Pettit, Invisible Men: Mass Incarceration and the Myth of Black Progress (New York: Russell Sage Foundation, 2012); Bruce Western, Punishment and Inequality in America (New  York:  Russell Sage Foundation, 2007). No account of the fate of the rights revolution can ignore Michelle Alexander’s book, The New Jim Crow:  Mass Incarceration in the Age of Colorblindness (New  York:  New Press, 2010), which has changed the national conversation about race, civil rights, and criminal justice reform. Sheryl Sandberg, Lean In: Women, Work, and the Will to Lead (New York: Knopf, 2013); Hanna Rosin, The End of Men: And the Rise of Women (New York: Riverhead Books, 2013).

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American women earn just 63 percent and Hispanic women 54 percent.29 The gap per dollar has diminished by just ten cents over the past twenty-five years.30 While women have made impressive gains in terms of educational attainment and their representation in high-paying occupations and management-level positions,31 their employment remains overconcentrated in less lucrative fields and in lower-earning positions within occupations.32 In addition, although the aggregate earnings figures used to measure the wage gap are affected by the types of occupations women pursue,33 pay disparities persist even when similar educational levels, occupations, and seniority are considered.34 To gather more data and promote transparency, President Obama issued an executive order in 2016 directing the EEOC to gather pay gap data from the nation’s largest companies.35 For the disabled, twenty-five years after the passage of the ADA, barriers to employment remain. The one in five Americans who are disabled are twice as likely 29

30 31

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33

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These figures are based on median annual earnings. American Association of University Women (AAUW), The Simple Truth about the Gender Pay Gap, Spring 2016, 11, available at www.aauw.org/ files/2016/02/SimpleTruth_Spring2016.pdf. Ibid., 3. Stainback and Tomaskovic-Devey, Documenting Desegregation, chs. 1–4. According to the 2014 EEOC data for executive and senior-level positions, white women hold 202,815 of these positions (compared to 521,941 for white men), while African American women hold only 12,442 (compared to 13,647 for African American men). EEOC, “2014 EEO-1 National Aggregate Report: Job Patterns for Minorities and Women in Private Industry,” available at www1.eeoc.gov/eeoc/statistics/employment/ jobpat-eeo1/2014/index.cfm#select_label Ariane Hegewisch and Heidi Hartmann, Occupational Segregation and the Gender Wage Gap: A Job Half Done (Washington, DC: Institute of Women’s Policy Research, 2014), available at www.iwpr.org/ publications/pubs/occupational-segregation-and-the-gender-wage-gap-a-job-half-done. For example, women make up 86 percent of paralegals, a third of lawyers, and only 16 percent of partners in large law firms. Rhode, What Women Want, 26. Francine D.  Blau and Lawrence M.  Kahn, “The Gender Wage Gap:  Extent, Trends, and Explanations,” National Bureau of Economic Research Working Paper No. 21913, January 2016, 1 (other variables economists have traditionally emphasized include education, work experience, family division of labor, and selection into the labor force). See, e.g., AAUW, The Simple Truth about the Gender Pay Gap, 13, 16–17; see also Claudia Goldin, “A Grand Convergence: Its Last Chapter,” American Economic Review 104 (2014): 1091–1119 (showing that the pay gap persists in the highest-paying occupations, likely due to inflexibility regarding hours and work location); Blau and Kahn, “The Gender Wage Gap:  Extent, Trends, and Explanations,” 8 (observing that pure discrimination could account for 38  percent of the gap  – what economists call the “unexplained” gender wage gap  – and could further indirectly affect the types of occupations women enter, resulting in fewer women pursuing male-dominated, high-paying occupations); Robert L. Nelson and William P. Bridges, Legalizing Inequality: Courts, Markets, and Unequal Pay for Women in America (New York: Cambridge University Press, 1999) (examining four cases showing that entrenched power disparities within organizations contribute to the gender wage gap). Danielle Paquette and Drew Harwell, “Obama Targets Gender Pay Gap with Plan to Collect Companies’ Salary Data,” Washingtonpost.com Wonkblog, January 19, 2016, available at https://www .washingtonpost.com/news/wonk/wp/2016/01/29/obama-targets-gender-pay-gap-with-plan-to-collectsalary-data-from-big-businesses/.

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to be unemployed when of working age, and many more drop out of the labor force entirely.36 Workers with disabilities earn 63 cents for every dollar earned by those without disabilities, and disparities remain even when the level of education is factored in.37 According to the US Census Bureau, in 2013 the poverty rate for working-age people with disabilities was 34.5 percent in contrast to 12.2 percent for those without disabilities.38 The National Council on Disability in 2015 called attention to these “astonishingly low” and “unacceptable” employment rate statistics for people with disabilities even as it commemorated the twenty-fifth anniversary of the ADA.39 When the primary author and sponsor of the ADA, Senator Tom Harkin, delivered his final speech on the Senate floor in 2015, he lamented the continuing low unemployment and labor force participation rates of people with disabilities, which he described as a “blot on our national character.”40 Although the broader public is largely unaware of these disparities, those familiar with these data and other indicators of growing inequality in the United States may question why so many scholars persist in referring to a “rights revolution” at all.41 36

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According to the Bureau of Labor Statistics, in the final quarter of 2014 the unemployment rate for working-age individuals with disabilities was 12.4 percent. The labor force participation rate for disabled persons aged 25–64 was 31.3 percent in 2013, compared to 81.3 percent for those without disabilities. Rebecca Vallas, Shawn Fremstad, and Lisa Ekman, A Fair Shot for Workers with Disabilities (Washington, D.C.: Center for American Progress, January 28, 2015), 3. American Institute for Research, An Uneven Playing Field:  A Lack of Equal Pay for People with Disabilities, (Washington, D.C.: December 2014), available at www.air.org/sites/default/files/Lack%20 of%20Equal%20Pay%20for%20People%20with%20Disabilities_Dec%2014.pdf. Vallas et  al., A Fair Shot for Workers with Disabilities, 3.  These figures are from the US Census American Community Survey, which covers six categories of disabilities. Available at https://www .census.gov/people/disability/methodology/acs.html. National Council on Disability, National Disability Policy: An Annual Report (Washington, D.C.: July 26, 2015), available at https://www.ncd.gov/sites/default/files/Documents/2015NCD_Annual_Report_508.pdf. Jennifer Lazlo Mizrahi, “Tom Harkin and the Ladder of Opportunity,” Huffington Post, December 15, 2014. For example, while a 2015 Harris Poll found that while 83 percent of those polled favor and support the ADA, 66 percent believe applicants should be required to disclose disabilities during the hiring process, and 48 percent believe companies should not be required to accommodate disabilities not disclosed in the hiring process – a set of views reflecting widespread ignorance regarding how disability discrimination in hiring produces persistently high unemployment and low labor force participation rates. Harris Poll, July 24, 2015, available at www.theharrispoll.com/politics/Support-For-the-ADA .html. See also Michael I. Norton and Samuel R. Sommers, “Whites See Racism as a Zero-Sum Game That They Are Now Losing,” Perspectives on Psychological Science 6 (2011): 215–218 (national survey showing white respondents believed white bias was more prevalent than anti-black bias); Hannah Fingerhut, “In Both Parties, Men and Women Disagree over Whether Women Still Face Obstacles to Progress” (56 percent of men believe that “obstacles that made it difficult for women to get ahead are largely gone,” while only 34 percent of women agree); Pew Research Fact Tank, August 16, 2016; Pew Research Center, “King’s Dream Remains an Elusive Goal,” 9 (79 percent of black respondents reported “a lot” needs to be done to achieve racial equality, compared to 44 percent of whites). It appears that the Black Lives Matter movement has helped since 2014 to shift perceptions, at least among white liberals and moderates, about race discrimination. See, e.g., Gallup, “U.S. Worries

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It is thus perhaps more precise to clarify that this revolution refers to the dramatic increase in EEOC claims, federal court filings, inventive agency regulations, and the growth of a network of human resources and compliance professionals – rather than a substantial shift in power in society. This book’s assessment of the rights revolution seeks to evaluate these changes in the institutional mechanisms of enforcement that have occurred and their impact, even while acknowledging that much more remains to be done to fulfill the goals these civil rights statutes were enacted to achieve. For many legal scholars and practitioners, the recent anniversaries of these landmark statutes produced rather muted celebrations.42 Some asked how the civil rights enforcement regime might be preserved and extended “once the impulses and energies that birthed it have faded,”43 in order to address challenges like structural racism that cannot be addressed within Title VII’s legal framework,44 and others going so far as to declare a “judicial repeal” of Title VII45 and the “dismantling” of the Voting Rights Act.46 In recent years, other scholars have called attention more generally to a judicial “retrenchment,”47 “procedural activism,”48 a conservative “assault,”49 a civil rights “rollback,”50 and a “conservative counterrevolution.”51

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about Race Relations Reach a New High,” April 11, 2016, available at www.gallup.com/poll/190574/ worries-race-relations-reach-new-high.aspx (showing a sharp increase in concern about race relations since 2014). Law schools across the country hosted major symposia to mark these anniversaries in 2014 and 2015. Yale Law School organized a conference to mark the publication of Bruce Ackerman’s 2014 book, The Civil Rights Revolution, which also featured reflections on the anniversaries of these landmark civil rights statutes. Stanford, Michigan, and Boston University law schools organized symposia on the fiftieth anniversary of Title VII and its legacy. Major conferences on the fiftieth anniversary of the Voting Rights Act were held at Washington & Lee, the University of Alabama, Louisiana State University, and Florida State University law schools. In 2015, the annual meeting of the American Association of Law Schools featured an event commemorating the twenty-fifth anniversary of the ADA. David Freeman Engstrom, “The Civil Rights Act at Fifty: Past, Present, and Future,” Stanford Law Review 66 (2014):1203. William Wiececk and Judy L. Hamilton, “Beyond the Civil Rights Act of 1964: Confronting Structural Racism in the Workplace,” Louisiana Law Review 74 (2014): 1095–1160. Nancy Gertner, “The Judicial Repeal of the Johnson/Kennedy Administration’s ‘Signature Achievement’,” in A Nation of Widening Opportunities: The Civil Rights Act at Fifty, eds. Samuel Bagenstos and Ellen Katz (Ann Arbor, MI: University of Michigan Press, 2015). Samuel Issacharoff, “Voting Rights at 50,” Alabama Law Review 67 (2015): 387–414. Pamela S.  Karlan, “David C.  Baum Memorial Lecture:  Disarming the Private Attorney General,” University of Illinois Law Review 2003 (2003):  183–209; Sarah Staszak, No Day in Court:  Access to Justice and the Politics of Judicial Retrenchment (New York: Oxford University Press, 2015). Goutam U. Jois, “Pearson, Iqbal, and Procedural Activism,” Florida State University Law Review 27 (2010): 901–944. Erwin Chemerinsky, The Conservative Assault on the Constitution (New York: Simon & Schuster, 2011). Awakening from the Dream:  Civil Rights Under Siege and the New Struggle for Equal Justice, eds. Denise C. Morgan, Rachel D. Godsil, and Joy Moses (Durham, NC: Carolina Academic Press, 2006). Lynda G.  Dodd, “The Rights Revolution in the Age of Obama and Ferguson:  Policing, the Rule of Law, and the Elusive Quest for Accountability,” Perspectives on Politics 13 (2015):  1–25; Amanda

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Indeed, in his 2014 book, The Civil Rights Revolution, Bruce Ackerman observes that “the sun is setting on the civil rights revolution.” In his assessment of the struggles of the 1960s and the changes they wrought, he concludes:  “All this is ancient history for the rising generation.”52 While there is much evidence to support Ackerman’s claim, civil rights activism in the United States during the Obama presidency – most prominently concerning immigration reform; lesbian, gay, bisexual, transgender (LGBT) rights; and police brutality – led to renewed debate about the rights revolution and its future. Given this concomitant revitalization of the rights revolution and pessimism about its operation and future, this is an especially opportune time to offer a wide-ranging appraisal of the development of the civil rights state. What are the institutional dynamics of the rights revolution? How have the Supreme Court and the federal courts strengthened and undermined the rights revolution? How have officials in the other branches responded to these developments?

The Shift to Private Enforcement of Civil Rights The most important institutional feature of the rights revolution is its dependence on private litigation. This volume seeks to contribute to the vibrant and influential literature in political science that examines this major shift in governance to private enforcement, including Robert Kagan’s now classic 2001 book Adversarial Legalism and Sean Farhang’s award-winning 2010 book, The Litigation State.53 Instead of considering the constitutional doctrines so often featured in accounts of the rights revolution since the 1960s, the following chapters address the landmark statutes that have been central to the creation of the litigation state:  the Equal Pay Act of 1963,54 the Civil Rights Act of 1964,55 the Voting Rights Act of 1965,56 the Age Discrimination in Employment Act of 1967,57 the Fair Housing Act

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Hollis-Brusky, Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution (New York: Oxford University Press, 2015). Bruce Ackerman, We the People, Vol. III:  The Civil Rights Revolution (Cambridge, MA:  Belknap Press, 2014). Robert Kagan, Adversarial Legalism: The American Way of Law (Cambridge, MA: Harvard University Press, 2001); Sean Farhang, The Litigation State: Public Regulation and Private Lawsuits in the U.S. (Princeton, NJ: Princeton University Press, 2010). Equal Pay Act of 1963, Pub. L. No. 88-38, 77 Stat. 56, codified at 29 U.S.C. § 206(d). Civil Rights Act of 1964, Pub. L. No. 88–352, 78 Stat. 241, codified at 42 U.S.C. §§ 2000e et seq. (Title VII), § 42 U.S.C. §§ 2000d et seq. (Title VI). Title VI of the 1964 act provides in part: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Voting Rights Act of 1965, Pub. L. No. 89–110, 79 Stat. 437, codified at 42 U.S.C. §§ 1973 et seq. Age Discrimination in Employment Act of 1967, Pub. L. No. 90-202, 81 St. 602, codified at 29 U.S.C. §§ 621 et seq. This statute was amended several times. In 1974, it was extended to apply to the federal, state, and local government, and extended the law to all those with over twenty employees. The

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of 1968,58 the Elementary and Secondary Education Act (Title VII is the Bilingual Education Act),59 the Equal Employment Opportunity Act of 1972,60 Title IX of the Education Amendments Act of 1972,61 Rehabilitation Act of 1973,62 the Civil Rights Attorneys Fees Award Act of 1976,63 and the Pregnancy Discrimination Act of 1978.64 A  few Reconstruction-era statutes also were revived in the 1960s and 1970s – in particular, Sections 198165 and 198366 – and their implementation

58 59

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original act covered workers aged 40–65. In 1978, Congress raised the upper age limit to 70, and in 1986 entirely deleted the upper age limit. Civil Rights Act of 1968, Pub. L. 90–284, 82 Stat. 73, codified at 42 U.S.C. § 3601 et seq. Pub. L. 89-10, 79 Stat. 27, codified at 20 U.S.C. Chapter 70. Title VII was replaced in the No Child Left Behind Act of 2001, and is now found at 20 U.S.C. §§ 6801 et seq. Pub. L. 92–261, 86 Stat. 103, codified at 42 U.S.C. 2000e et seq. These amendments expanded the reach of Title VII to federal, state, and local government, and gave the EEOC the authority to prosecute Title VII claims directly in court. During the debates leading up to the 1972 amendments, civil rights advocates unsuccessfully sought to give cease and desist powers to the EEOC, but these same lobbyists “refused to give up private lawsuits with fee shifting” in exchange for a stronger EEOC. These debates marked a decisive shift away from the “administrative state-centered model” and “the New Deal-style administrative visions” at the dawn of the Nixon administration. Farhang’s account emphasizes the “policy learning” and “self-reinforcing feedback” that led civil rights advocates to shift “preferences in favor of private enforcement,” especially given their concerns about the civil rights enforcement priorities in the Nixon administration. Farhang, The Litigation State,129; 135, 137–142, 145. Pub. L. No. 92-318, 86 Stat. 235, codified at 42 U.S.C. § 1681. Pub. L. No. 93-112, 87 Stat. 355, codified at 29 U.S.C. §§ 791 et seq. This statute extended fee shifting to Section 1981, Section 1983, Title VI of the 1964 Act, and Title IX of the Education Amendments Act of 1972. For a review of the debates leading up to the 1976 legislation, see Farhang, The Litigation State, 148–163; Mary Frances Derfner, “One Giant Step: The Civil Rights Attorney’s Fees Awards Act,” Saint Louis University Law Journal 21 (1977): 441–451. Pub. L. No. 95-555, 92 Stat. 2076, codified at 42 U.S.C §2000e(k). The Pregnancy Discrimination Act (PDA) was passed in response to the Court’s decision in General Electric Co. v. Gilbert, 429 U.S. 125 (1976), which held that discrimination due to pregnancy was not sex discrimination under Title VII. Congress passed the PDA to amend Title VII by stating because of sex includes because of or on the basis of pregnancy, childbirth, or related medical conditions. Pregnant women must be treated the same as other workers – pregnancy, if necessary, must be treated like any other temporary disability. 42 U.S.C. § 1981 provides: “All persons within the jurisdiction of the United States shall have the same right in every State and territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.” For more on the origins and development of this provision, see George Rutherglen, Civil Rights in the Shadow of Slavery: The Constitution: Common Law, and the Civil Rights Act of 1866 (New York: Oxford University Press, 2013). 42 U.S.C. § 1983 provides in part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress …” For more on the origins and development of this provision, see Lynda G.  Dodd, Taming the Rights Revolution: Constitutional Torts, the Supreme Court, and the Elusive Quest for Accountability (New York: Cambridge University Press, 2018).

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became a central part of the rights revolution. In recent years, private enforcement of civil rights has grown even more following the passage of the Americans with Disabilities Act of 1990,67 the Civil Rights Act of 1991,68 the ADA Amendments Act of 2008,69 and the Ledbetter Fair Pay Act of 2009.70 In recent scholarship, political scientists have examined the prerequisites for private enforcement regimes. In his influential book, The Rights Revolution, Charles Epp shows how the slow creation of a support structure for legal mobilization between 1910 and the 1960s was a central prerequisite for the rights revolution, as without sufficient numbers of private attorneys, there would be no possible basis for a private enforcement regime.71 Groups like the National Association for the Advancement of Colored People (NAACP) and the American Civil Liberties Union (ACLU) were needed to pave the way. Paul Frymer has usefully highlighted the procedural prerequisites for successful litigation – including changes to the Federal Rules of Civil Procedure.72 Other scholars have described the growth and activity of the private civil rights bar. In The Litigation State, Sean Farhang examines the legislative incentives produced by attorney fee-shifting, including the growth of the for-profit employment rights bar after the passage of the 1964 Act, and in Making Rights Real Charles Epp examines the activities of for-profit civil rights lawyers challenging police brutality in the 1970s, especially after the passage of the Civil Rights Attorneys Fees Awards Act of 1976.73 Rather than depending primarily on federal agencies like the EEOC or the Department of Justice to enforce civil rights, the post-1960s rights revolution was developed by private plaintiffs filing cases in federal court – through private rather than government enforcement. It is difficult to overstate the magnitude of this shift. Only a few hundred civil rights cases per year were filed in federal courts in the early 1960s. In 2015, by contrast, plaintiffs filed over 37,000 civil rights cases – a total that includes 12,205 cases under Title VII; 16,561 cases alleging “other civil rights” claims, including under Section 1983, Bivens, and Section 1981; 2,076 ADA employment cases; and 5,156 ADA Title I cases.74 67 68 69 70 71 72

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42 U.S.C. §§ 12101 et seq. Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071–1100. ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553. Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5. Epp, The Rights Revolution. Paul Frymer, Black and Blue:  African Americans, the Labor Movement, and the Decline of the Democratic Policy (Princeton, NJ: Princeton University Press, 2008). Farhang, The Litigation State; Charles Epp, Making Rights Real:  Activists, Bureaucrats, and the Creation of the Legalistic State (Chicago, IL: University of Chicago Press, 2009). These figures do not include civil rights (17,829) and prison condition (8,690) claims brought by prisoners. In addition, as Paul Gardner discusses in Chapter 4, there are far fewer cases are filed by private plaintiffs for housing and voting: 86 for voting, and 775 for housing. Administrative Office of the U.S.

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Recent political science scholarship has also illuminated how the use of private enforcement serves the state’s regulatory goals.75 In Adversarial Legalism, for instance, Kagan suggests that “lawyers, legal rights, judges, and lawsuits are the functional equivalent of the large central bureaucracies that dominate governance in high-tax, activist welfare states”76 As Farhang and others have shown, private litigants and their lawyers use the discovery process in ways that overlap with the investigatory powers of federal agencies, and both private litigants and government officials can obtain similar kinds of enforcement orders from the courts.77 Private enforcement in these ways strengthens the power of the state by extending its enforcement reach and augmenting state regulatory authority. As Farhang puts it, “private litigation is state power exercised through society.”78 This body of political science scholarship thus endorses a view long held by legal scholars, lawyers, and judges who often refer to these civil rights plaintiffs as “private attorneys general,” because the litigation they undertake helps to secure civil rights protections and other regulatory goals for the broader public, and not just their own clients.79 As the core institutional mechanism for implementing the rights revolution, private enforcement of civil rights is enormously significant. Its independence from formal institutions of state power, however, serves to disguise the important role of private litigation in the development of the civil rights state. As political scientists like R. Shep Melnick have noted, private enforcement regimes tend to obscure “the reach and strength of the American state.”80 Private enforcement also obscures the public value of private enforcement of civil rights. Because it is relatively hidden,

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Courts data, 2016, Table C-2 (listing 2015 totals), available at www.uscourts.gov/sites/default/files/data_ tables/jb_c2_0930.2016.pdf Republicans and libertarians understood this link and sought to challenge it beginning in the Reagan era. See, e.g., Burbank and Farhang’s Chapter 8 in this volume; Jefferson Decker, The Other Rights Revolution: Conservative Lawyers and the Remaking of American Government (New York: Oxford University Press, 2016). Kagan, Adversarial Legalism, 16. Farhang, The Litigation State, at 8. Ibid., 9. William B. Rubenstein, “On What a ‘Private Attorney General’ Is – And Why It Matters,” Vanderbilt Law Review 57 (2004): 2129–2173; Karlan, “Disarming the Private Attorney General.” The term “private attorney general” was coined by Judge Jerome Frank in Associated Industries of New York State v. Ickes, 134 F.2d 694 (2d Cir. 1943). After the passage of Title VII, the Supreme Court acknowledged that private plaintiffs were serving a broader public function. See Newman v. Piggie Park Enterprises, 390 U.S. 400, 401–402 (1968) (observing that suits under the Civil Rights Act of 1964 are “private in form only” because whenever a plaintiff “obtains an injunction, he does so not for himself alone but also as a ‘private attorney general,’ vindicating a policy that Congress considered of the highest priority”). See also Farhang, The Litigation State, at 9 (emphasizing dual role of private enforcement to both augment state regulatory authority and also control state misconduct). R. Shep Melnick, “Adversarial Legalism, Civil Rights, and the American State” (Working Paper, 2012), at 1; R. Shep Melnick, “The Odd Evolution of the Civil Rights State,” Harvard Journal of Law and Public Policy 37 (2014): 113–134.

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there is very little awareness of or appreciation for the public benefits flowing from private enforcement of civil rights.

Interbranch Dynamics The ability of these private plaintiffs to bring successful civil rights cases depends on far more than receptive federal judges. Every branch of the federal government has had a hand in the development of the civil rights state. Previous political science scholarship has focused particularly on major congressional legislation – including Title VII of the 1964 Act, the Equal Employment Opportunity Act of 1972, the Civil Rights Attorney’s Fees Awards Act of 1976, and the Civil Rights Act of 1991 – that contributed to the growth of private enforcement of civil rights. Through these significant legislative initiatives, Congress successfully shifted incentives to encourage private attorneys to specialize in certain forms of civil rights enforcement and thereby become “repeat players,” with all the attendant strategic advantages that brings.81 No longer would the support structure for civil rights remain separate and apart from the state. Instead, in the decades following the passage of the 1964 Act, Congress repeatedly intervened to increase and strengthen private enforcement. The Rights Revolution Revisited moves beyond the prior focus on Congress by examining the role of all the branches in the federal government. The interbranch analyses in the chapters that follow show that every branch of the federal government has a crucial role to play in the making – and potential unmaking – of the civil rights state. While the role of Congress in propelling the institutional development of the rights revolution is now far better appreciated, thanks especially to Farhang’s The Litigation State, many of the contributors to this volume seek to complicate his account of the “institutional logic” of private enforcement, by featuring the role of federal agencies. Compare, for example, Farhang’s suggestion that, in private enforcement regimes, agencies can be cut out of the process: [W]hen Congress implements laws through the use of private enforcement regimes, it can cut the president out of this scenario, save for an indirect presidential influence via judicial nominations. When a law is implemented purely through a private enforcement regime, Congress makes laws, private actors and their attorneys “take care that the laws are faithfully executed”, and courts decided cases or controversies. Private actors are given what are classically thought of as executive responsibilities, and the president, along with the executive apparatus, is sidelined.82

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Marc Galanter, “Why the ‘Haves’ Come out Ahead: Speculations on the Limits of Legal Change,” Law & Society Review 9(1974): 95–159. Farhang, The Litigation State, at 45–46.

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The executive branch is thus, in this account, no longer engaged in “rule articulation,” which occurs when “implementing authority, whether judicial or administrative, will be required to articulate rules elaborating the substantive meaning of a statute in the course of applying it.”83 Indeed much of the law and economics literature on private enforcement regimes in a wide range of regulatory fields has offered a similar account of this institutional logic, assuming a stark opposition between private enforcement and agency enforcement.84 Yet as the scholarly literature on the institutional dynamics of private enforcement has continued to mature, a growing number of political scientists have revealed that agencies are not so neatly sidelined.85 The EEOC and other civil rights offices have conducted investigations, worked with civil rights groups, set up data-gathering systems that provided support for civil rights advocates, filed amicus briefs, and issued policy statements that helped promote private enforcement and supported more favorable judicial interpretations of these statutes. Indeed, as the following chapters will show in more detail, some of the most important advances of the rights revolution resulted from incremental strategic adjustments to bureaucratic actions. Whether for good or ill, the executive branch could help or hinder private enforcement. This interbranch perspective on the rights revolution thus refutes the early assessment of Jack Greenburg, the NAACP’s Legal Defense & Education Fund, Inc. (LDF) director-counsel in 1969, who stated, “The entire history of the development of civil rights law is that private suits have led the way and government enforcement

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Ibid., 45. Private enforcement extends beyond civil rights to cover the full gamut of litigation in the federal courts. From 1999 to 2009, over 97 percent of lawsuits filed in federal district to enforce all federal statutes were filed by private plaintiffs. Farhang, The Litigation State, 10. For scholarship evaluating private versus agency enforcement in other regulatory areas, see, e.g., J.  Maria Glover, “The Structural Role of Private Enforcement Mechanisms in Public Law,” William & Mary Law Review 53 (2012):  1136–1217; Matthew C.  Stephenson, “Public Regulation of Private Enforcement:  The Case for Expanding the Role of Administrative Agencies,” Virginia Law Review 91(2005):  93–173; Matthew C.  Stephenson, “Legislative Allocations of Delegated Power:  Uncertainty, Risk, and the Choice between Agencies and Courts,” Harvard Law Review 119 (2006): 1035–1070; Daniel P. Kessler ed., Regulation versus Litigation: Perspectives from Economics and Law (Chicago, IL: University of Chicago Press, 2011); W. Kip Viscusi, ed., Regulation through Litigation (Washington, D.C.: Brookings Institution Press, 2002). See, e.g., R. Shep Melnick, “Courts and Agencies in the American Civil Rights State,” in The Politics of Major Policy Reform in Postwar America, eds. Jeffrey A. Jenkins and Sidney M. Milkis (New York: Cambridge University Press, 2015), 77–102. Robert Lieberman has shown how the EEOC sought out relationships with civil rights organizations, particularly the NAACP, soon after the passage of the 1964 Civil Rights Act. Robert C. Lieberman, “Private Power and American Bureaucracy: The EEOC and Civil Rights Enforcement,” Working Paper 2007. John Skrentny offers a thorough account of the role played by unelected bureaucrats in the rapid extension of rights protections beyond African Americans to immigrants, Latinos, Asian Americans, women, and the disabled in Skrentny, The Minority Rights Revolution.

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has followed.”86 Instead, as this volume will show, the EEOC and other civil rights agencies have played important roles in helping or hindering private enforcement. Consider, for example, the EEOC’s decision to impose a requirement for companies covered by Title VII to report diversity statistics, which paved the way for EEOC guidelines regarding practices for hiring, testing, and seniority systems. The Burger Court’s endorsement of these moves in Griggs v.  Duke Power. Co. (1971) and United Steelworkers v. Weber (1979) served to insulate the EEOC from any political backlash.87 The result of this dynamic was a significant expansion of employment antidiscrimination norms beyond the strict text of the 1964 Civil Rights Act by allowing for both disparate impact analysis and affirmative action programs.88 Another important example of what Melnick calls interbranch “leapfrogging” is the development of private enforcement under Title VI of the 1964 Act, which, as Hugh Davis Graham has observed, “would become by far the most powerful weapon of them all.”89 Indeed, the impact of this transformation of the enforcement mechanism was so great because the funding provision in Title VI had by then been “cloned” to cover women in Title IX of the Education Amendments of 1972, the disabled in Section 504 of the Rehabilitation Act of 1973, and the elderly in the Age Discrimination Act of 1975.90 Title IX, for example, developed in largely the same way as Title VI, through a “symbiotic” partnership between the agency and courts.91 This process of institutional leapfrogging produced an “unorthodox regulatory regime” of court enforcement of prophylactic agency guidelines sweeping far more broadly than the terms of their authorizing statute.92 Key Burger and Rehnquist Court cases endorsed these developments and even enhanced the attractiveness of litigation in opinions establishing that private litigants could seek monetary damages as well as injunctions in Title VI and Title IX litigation.93

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Quoted in Farhang, The Litigation State,145. Griggs v. Duke Power. Co., 401 U.S. 424 (1971); United Steelworkers v. Weber, 44 U.S. 193 (1979). See e.g., John David Skrentny, The Ironies of Affirmative Action:  Politics, Culture, and Justice in America (Chicago, IL:  University of Chicago Press, 1996), 127–131; Nicholas Pedriana ad Robin Stryker, “The Strength of a Weak Agency: Enforcement of Title VII of the 1964 Civil Rights Act and State Capacity, 1965–1971,” American Journal of Sociology 110(2004): 709–760. Melnick, “The Odd Evolution of the Civil Rights State,” 124; Graham, The Civil Rights Era, 83; see also Stephen C. Halpern, On the Limits of the Law: The Ironic Legacy of Title VI of the 1964 Civil Rights Act (Baltimore, MD: Johns Hopkins University Press, 1995). Graham, “The Paradox of American Civil Rights Regulation,” 197–9. Melnick, “Courts and Agencies in the Civil Rights State,” 84. Melnick, “The Odd Evolution of the Civil Rights State,” 121–122, 131. Guardians Association v. Civil Service Commission of the City of New York, 463 U.S. 582 (1983) (Title VI); Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992) (Title IX).

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Litigation and Its Discontents But if the courts can giveth, they can also taketh away. Although much of the political science literature on the rights revolution has emphasized the resilience of rights claims, a growing number of scholars have highlighted the role of recent Supreme Court decisions limiting private enforcement.94 Certainly courts can use the function of rule articulation to promulgate much narrower interpretations of substantive statutory provisions.95 In The Litigation State, Farhang acknowledges the possibility of this kind of “judicial drift” and that it “will be harder for Congress to control than bureaucratic drift.”96 But federal courts can do more than retrench through rule articulation. They can also introduce procedural doctrines  – “rule enforcement” doctrines concerning pleading, standing, immunities, and attorney’s fees  – that weaken private enforcement.97 These procedural doctrines undermining civil rights litigation are extremely important, even if less recognized. As Melnick observes, “the Supreme Court often leaves its biggest imprint on civil rights policy not in high visibility constitutional rulings, but in a large number of small adjustments in the ‘remedial machinery’ that turns abstract rights into binding norms.”98 Indeed, without more attention to these low-visibility procedural cases, the Roberts Court may mistakenly appear far more moderate to political scientists employing a regime model of analysis and focusing on high-profile constitutional law cases.99

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On the resilience of rights, Thomas F. Burke, “The Rights Revolution Continues: Why New Rights are Born (and Old Rights Rarely Die),” University of Connecticut Law Review 33 (2001): 1259–1274; Thomas M.  Keck, The Most Activist Court in History:  The Road to Modern Judicial Conservatism (Chicago, IL:  University of Chicago Press, 2004). On the Court’s counterrevolution, see Staszak, No Day in Court; Dodd, “The Rights Revolution in the Age of Obama and Ferguson”; Stephen B.  Burbank and Sean Farhang, Rights and Retrenchment:  The Counterrevolution against Federal Litigation (New York: Cambridge University Press, 2017). Farhang, “The Litigation State,” 54. Ibid., 50, 55. When Farhang speaks of the advantage of “auto-pilot enforcement” for private litigation regimes, he is suggesting that once private enforcement regimes are in place it becomes very “difficult for future legislative majorities or errant bureaucrats” to subvert. Farhang, The Litigation State, 5. Although at times Farhang suggests in The Litigation State that the rule enforcement function is simply left to private plaintiffs in the marketplace of economic incentives and is “largely self-executing and insulated,” his new work with Stephen Burbank examines the role of judicial retrenchment through these procedural cases. See Farhang, The Litigation State, at 54, Rights and Retrenchment, and Chapter 8 in this volume. R. Shep Melnick, “The Supreme Court and the Civil Rights State,” Working Paper 2011, 27. See, e.g., Artemus Ward and J.  Mitchell Pickerill, “Judicial Minimalism Is Alive and Well on the Roberts Court,” National Law Journal, July 3, 2013; Thomas M. Keck, Judicial Politics in Polarized Times (Chicago, IL: University of Chicago Press, 2014).

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This increasing judicial hostility may be due in part to pressures associated with “managerial judging,” a response to the dramatic rise in federal caseloads in the wake of the rights revolution.100 This hostility is also likely part of a broader shift in attitudes about litigation. Since the Reagan years, there has emerged a deep suspicion of private enforcement and litigation more generally.101 Private enforcement is under assault, in large part because of the influence and impact of the tort reform movement, which has successfully stigmatized litigation as “jackpot justice” and “lawsuit abuse” that is intrinsically unfair to defendants.102 Private litigation is thought to be too slow, uncertain, inefficient, costly, and inconsistent. These antilitigation critiques have had a significant impact. In the past, citizens who had “the courage of their convictions” to seek justice in the court system and vindicate the rights of all their fellow citizens were often celebrated and praised.103 Over the past three decades, however, civil rights plaintiffs and their lawyers began confronting increasing hostility, in part no doubt due to the rise of anti-litigation rhetoric.104 This dissatisfaction is growing beyond the Federalist Society–Manhattan Institute axis to include liberals both within and beyond the academy. These trends perhaps reflect a generational shift in perspective. The previous generation of liberals who emerged from the collapse of the post-New Deal Coalition at the height of post-Watergate skepticism were skeptical of national government and yet believed its responsibilities should expand. The litigation state, which assigned significant responsibilities to liberal legal organizations, was “particularly well suited to the purposes of these ambivalent activists.”105 Today, however, there is less support all around for a litigation-centered civil rights strategy. Scholars like Robert Kagan have shown that there is widespread ideological resistance to a larger welfare state and 100

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See, e.g., Gertner, “Judicial Repeal of the Johnson/Kennedy Administration’s ‘Signature Achievement’ ” (suggesting that federal judges’ anti-plaintiff bias is largely due to case management pressures); Margaret Lemos, “Special Incentives to Sue,” Minnesota Law Review 95 (2011): 782–845 (legislative incentives to promote private enforcement may create a judicial backlash due to judicial hostility regarding rising caseloads). Kagan, Adversarial Legalism; Thomas F. Burke, Lawyers, Lawsuits and Legal Rights: The Battle over Litigation in American Society (Berkeley, CA:  University of California Press, 2002); Steven Teles, The Rise of the Conservative Legal Movement:  The Battle for the Control of the Law (Princeton, NJ: Princeton University Press, 2008); Hollis-Brusky, Ideas with Consequences; Andrew Siegel, “The Court against the Courts: Hostility to Litigation as an Organizing Theme in the Rehnquist Court’s Jurisprudence,” Texas Law Review 84 (2006): 1097–1202. Michael McCann and William Haltom, Distorting the Law: Politics, Media, and the Litigation Crisis (Chicago, IL: University of Chicago Press, 2004). Peter Irons, The Courage of Their Convictions:  Sixteen Americans Who Fought Their Way to the Supreme Court (New York: Penguin Press, 1990). Lynda G. Dodd, “Implementing the Rule of Law: The Role of Citizen Plaintiffs,” The Good Society 13 (2004): 36–44. Melnick, “Adversarial Legalism, Civil Rights, and the American State,” 29–30; Burke, Lawyers, Lawsuits, and Civil Rights, at 14.

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more centralized bureaucratic enforcement authority and that opposition has continued to shape legislative incentives to turn to private enforcement, yet there is also increasing popular dissatisfaction with litigation and its role in the broader political system  – what Gordon Silverstein has called the “juridification” of politics.106 Political scientists have in increasing numbers offered pessimistic appraisals of a litigation-centered politics.107 They are joined by an influential group of legal scholars whose normative scholarship endorses moving beyond the private enforcement approach.108 To be sure, it is important not to overstate the scope of this disenchantment, both in the academy and the broader public. The first major piece of legislation that Obama signed in 2009 was the Lily Ledbetter Act, which found (just barely) sufficient support from Republicans who support women’s rights, including all five female Republican senators. But these wins are few and far between, and usually result from fleeting bipartisan support for specific civil rights policies. A  similar dynamic occurred with the ADA Amendments Act of 2008, as Republicans have been more supportive of disability discrimination statutes, in part to ensure that the disabled remain in the workforce rather than become a further burden on public resources.109 In other areas of civil rights policy, liberals have found it more difficult to forge bipartisan coalitions. Despite the increasingly dim prospects for success, in the final years of the Obama administration liberal civil rights organizations continued a drumbeat of calls for new legislation, such as the Voting Rights Act fix and the Employment Non-Discrimination Act (ENDA).110 Yet no similarly high-profile campaign has been launched to counteract the Court’s procedural rulings undermining private enforcement. Without broader support for private enforcement more generally, Congress was not in a position to shore

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Kagan, Adversarial Legalism; Gordon Silverstein, Law’s Allure: How Law Shapes, Constrains, Saves, and Kills Politics (Berkeley, CA: University of California Press, 2009). See, e.g., Stuart Scheingold, The Politics of Rights: Lawyers, Public Policy, and Social Change, 2nd ed. (Ann Arbor, MI: University of Michigan Press, 2004); Gerald Rosenberg, The Hollow Hope: Can Courts Achieve Social Change? 2nd ed. (Chicago, IL:  University of Chicago Press, 2008); Kagan, Adversarial Legalism; Silverstein, Law’s Allure; Jeb Barnes and Thomas F. Burke, How Policy Shapes Politics:  Rights, Courts, Litigation, and the Struggle over Injury Compensation (New  York:  Oxford University Press, 2015). Susan Sturm, “Second Generation Employment Discrimination: A Structural Approach,” Columbia Law Review 101 (2001):  458–568; Samuel R.  Bagenstos, “The Structural Turn and the Limits of Antidiscrimination Law,” California Law Review 94 (2006): 1–47; Robin L. West, “Tragic Rights: The Rights Critique in the Age of Obama,” William & Mary Law Review 53 (2011):  713–746; Richard Thomas Ford, Rights Gone Wrong: How Law Corrupts the Struggle for Equality (New York: Fararr, Straus and Giroux, 2011). Burke, Lawyers, Lawsuits, and Legal Rights, ch. 2. See Richard Hasen, “End of the Dialogue: Political Polarization, the Supreme Court, and Congress,” Southern California Law Review 86 (2012): 101–155.

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up the procedural prerequisites for the litigation state. Indeed, as judicial hostility to private enforcement reached new heights during the Obama years, Congress was rarely in a position to override court decisions or to pass more comprehensive legislation to shore up private enforcement, such as the Civil Rights Act of 2008. The odds of again forming bipartisan coalitions to promote trans-substantive legislation promoting civil rights litigation currently appear extremely low. In exploring the reasons why, it is important to acknowledge that so much of the growth of the litigation state – the institutional leapfrogging in support of private enforcement – was never truly the product of “democracy at work.”111 As private enforcement regimes evolved and gained strength in the 1970s, they were thus accompanied by a potentially threatening popular legitimacy deficit. Although Congress has successfully shored up private enforcement on a number of occasions, it is also true that civil rights plaintiffs’ role in serving the public interest – their role as private attorneys general – is not adequately appreciated by the broader public.112 The Court’s recent procedural assault is thus likely to be far longer lasting. In contrast to the early Rehnquist Court, today the Roberts Court can issue restrictive procedural rulings and face only a miniscule chance of a legislative override. This is due not just to the combined effect of multiple veto points, divided government, and partisan polarization, but also the lack of broad support for private enforcement of civil rights.

Plan of the Book All of the major themes discussed earlier – the significance of private enforcement, interbranch dynamics, and skepticism about the role of litigation in future civil rights struggles  – are addressed in the following chapters. Part II of this volume, “Implementing the Rights Revolution,” offers a series of chapters examining the development of private enforcement regimes in a number of important civil rights fields: employment, housing, voting, bilingual education, sexual harassment, and disability rights. The first three chapters help explain how the emergence of private enforcement regimes was contingent upon not only the incentives for private plaintiffs to sue, but also upon support from agencies and interest groups. In Chapter 2, Quinn Mulroy offers a useful corrective to an overly simplistic frame placing private 111

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Farhang emphasizes legislative support for private enforcement from 1964 to 1991, and argues emphatically that the growth of private enforcement was the product of “most certainly democracy at work.” Farhang, The Litigation State, 234. For an examination of news coverage of the Court’s procedural counterrevolution, see Stephen B. Burbank and Sean Farhang, “The Subterranean Counterrevolution: The Supreme Court, Media, and Litigation Reform,” DePaul Law Review 65 (2016): 293–321.

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enforcement and agency enforcement in opposition, revealing instead the key role that federal agencies have played in making private enforcement of civil rights in the federal courts viable. Through archival research and a comparative examination of the work of the EEOC and the Department of Housing and Urban Development (HUD), Mulroy shows that agency support is contingent upon the support of agency leaders and policy entrepreneurs and explains why only the EEOC implemented many of the available tools for bolstering private enforcement regimes, including developing administrative procedures, issuing or filing guidelines, regulations, and amicus briefs, and assisting the private civil rights bar. Jennifer Woodward, in Chapter  3, similarly traces archival records to investigate the early years of implementation of Title VII, focusing on the creation of the National Organization of Women (NOW) and its calls for enforcement of Title VII’s sex provision. Contingency is central to the story that Woodward tells as well, because with respect to women’s rights, the EEOC leadership was divided over the proper approach and needed to be prodded by feminist leaders within the EEOC – including Aileen Hernandez, the first female EEOC commissioner and Sonia Pressman Fuentes, the first female attorney in the EEOC’s Office of General Counsel – and by the members of NOW. Their pressure eventually prompted the EEOC to promote and mobilize private enforcement of women’s claims. In Chapter 4, Paul Gardner complements these accounts of the early years of the EEOC by offering a comparative assessment of the private enforcement regimes in the areas of federal employment, housing, and voting discrimination. Gardner argues that the growth of private enforcement in each of these policy domains varied in part because of the different incentives to sue, an account he develops by emphasizing the role of public and private benefits flowing from private enforcement. In the case of employment discrimination litigation, he observes, individual cases do not often generate systemic reforms, but the private benefits for successful plaintiffs can be very high, which helps to explain why so many private litigants have sued under Title VII. In contrast, because there were low private benefits associated with private enforcement of housing and voting rights laws, plaintiffs had few incentives to pursue litigation. The next two chapters shift to the consideration of private enforcement under Titles VI and IX from the 1970s through the current era. In Chapter 5, Ming Chen examines the development of bilingual education policies in the United States, comparing how the EEOC and the Office of Civil Rights (OCR) in the Department of Health, Education, and Welfare (HEW) sought to promote the rights of immigrants. Through informal guidance and policy statements, these agencies relied on the statutory bans on national origin discrimination in Titles VI and VII to develop farreaching federal regulations for limited English-proficient (LEP) speakers. Chen’s

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account again shows how essential agency support is to the development of private enforcement and calls attention to the importance of judicial receptivity. In Chapter 6, R. Shep Melnick provides an overview of the Obama administration’s far-reaching Title IX guidelines on sexual assault prevention and investigations in colleges and universities. OCR conducted investigations of leading universities across the country and threatened funding cut-offs for those that did not comply with the new requirements, including alterations in their bureaucratic structure; more training of students, faculty and staff; and sexual harassment definitions that include limits on “unwelcome” speech. In response, Melnick observes, many of these universities also changed procedures to make it easier for complainants to meet their burden of proof in sexual harassment or assault cases on campus. Melnick shows that despite alleged legislative gridlock and judicial retrenchment, these agency-led initiatives could proceed without much in the way of checks and balances, a feature of the civil rights state that has produced a bias in favor of increasing regulation. In Chapter 7, Thomas F. Burke and Jeb Barnes assess the impact of private enforcement litigation under the Americans with Disabilities Act. After providing an overview of the weakness of the private enforcement model that focuses on individual, intent-based claims of discrimination – what they call “the civil rights template” – they focus their attention on the far greater impact of the accessibility provisions in Titles II and III of the ADA. Drawing upon empirical research examining the impact of private enforcement of the public accommodations provision in the statute, they uncover considerable variability in the different organizations’ responses to legal risk created by the ADA and call for more research into why some organizations are more willing than others to comply with their legal obligations to help people with disabilities. The three chapters in Part III, “Rights and Retrenchment,” examine recent efforts to roll back the litigation state. In Chapter 8, Sean Farhang and Stephen Burbank draw upon their archival research to examine the failures of legislative retrenchment since the Reagan era and offer an empirical analysis of the extent of the partisan divide on the Court regarding private enforcement of civil rights using their original dataset of all Supreme Court opinions from 1970 to 2014 concerning private rights of action, standing, attorney’s fees, arbitration agreements, and the Federal Rules of Civil Procedure. They observe that the increasing polarization on these issues since the 1980s is due in large part to increasing hostility to private enforcement on the part of Republican-appointed justices and analyze the factors that contribute to the success of judicial retrenchment. In Chapter  9, I  examine the ways in which leading Supreme Court decisions since the late 1980s have affected private enforcement of civil rights in the area of employment law. I explain how the Court’s conservatives have succeeded in revising a number of doctrines raising new procedural hurdles for plaintiffs and assess the

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Court’s interpretations of the substantive provisions in these civil rights statutes. As this analysis shows, the conservative majority in the Rehnquist and Roberts Court has continued to make it very difficult for plaintiffs to succeed in litigation against their employers. In Chapter  10, Sarah Staszak extends her analysis of the politics of judicial retrenchment – efforts to narrow access to the federal courts – to a case study of the politics of government support for legal aid attorneys funded by the Legal Services Corporation (LSC), established in the Nixon administration to provide governmentfunded legal assistance to the poor. Staszak describes how the LSC became a major target for the Reagan administration and recounts repeated attempts, some successful, over the past thirty years to reduce funding for the LSC or to impose new conditions on legal aid organizations’ receipt of federal funds. Part IV, “The Future of the Rights Revolution,” includes two chapters offering concluding assessments and recommendations. In Chapter 11, David Engstrom considers whether there should be more political control over private enforcement regimes. Based on his examination of the difficulties associated with prior legislative efforts to control the scope of private litigation – including tort reform, procedural reforms, and agency gatekeeper mechanisms – Engstrom suggests a reform of the EEOC’s role in Title VII litigation in which the EEOC would no longer be involved in individual charge processing and instead take a more active role in screening class action and other systemic private lawsuits. In Chapter 12, I offer some concluding reflections regarding strategies to strengthen the private enforcement of civil rights in this polarized era of rollbacks and retrenchment, particularly in light of the results of the 2016 presidential election. Progressives seeking to preserve the gains of the rights revolution have much work ahead to defend and improve a system of litigated checks and balances that has become such a crucial component of the civil rights state. In these efforts, reformers must keep in mind that litigation alone, as essential as it is, must be supported and strengthened by popular mobilization. Indeed, the future of the rights revolution will depend upon it.

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Implementing the Rights Revolution

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2 Approaches to Enforcing the Rights Revolution: Private Civil Rights Litigation and the American Bureaucracy Quinn Mulroy

The most common textbook narrative of the mid-twentieth-century civil rights revolution provides a picture of a fairly time-bound, unified movement with clearly identifiable leaders and goals, beginning with calls to action in the courts and culminating in a triumph of landmark national civil rights legislation in the mid-1960s. Of course, the story of the rights revolution is much more complicated. The fight for full civic and political inclusion for all Americans extends back far beyond Brown, and forward to today; and it is not singularly focused on securing a right, but a diverse field of rights in economic and social interactions, from voting to education to employment to housing. Moreover, these rights were emphatically not achieved when the laws were passed. To the contrary, in many cases, that was only the beginning, as a range of policies and agencies were enlisted to combat the entrenched inequalities and social stratification, and enforcement varied by group, substantive area, and strategy pursued. This complexity is well known to those who fought and fight these battles. Yet in speaking of a rights revolution, we often lose sight of this multidimensional variation in how much progress has been achieved and sustained. The chapters in this volume highlight the unevenness with which rights are actually defended and implemented in practice – which areas of discrimination are most persistent, and why; how different regulatory approaches are variously adopted and abandoned for tackling such practices; and the mechanisms by which the defense of such rights succeed or fail. In this highly precarious area of policy, we must attend to the high contingency of rights enforcement at various intersections of these dimensions. With this perspective, then, this chapter will closely examine and complicate another current civil rights subnarrative – that of the “litigation state” – which holds that the mantle of civil rights enforcement, largely circumventing the ineffective and overwhelmed efforts of federal civil servants, has been deputized to another set of actors: private litigants. Turning to the courts with their rights claims, private attorneys general have indeed shouldered the lion’s share of the regulatory workload on 27

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civil rights enforcement. And this is no small task: civil rights claims have become one of the most prolific areas of litigation, at times composing up to 20 percent of the federal district courts’ docket – a considerable share that speaks to the continued reliance on private legal pathways for the enforcement of civil rights policy. But this narrative, too, is simplistic, because this path to litigation enforcement is not wholly forged in the absence of civil rights regulatory agencies and is not equally well paved across different areas of civil rights law. In this chapter, I  look closely at this story and see an important role for those supposedly marginalized agencies. Far from being irrelevant to or simply overwhelmed by rights claims, the federal agencies charged by statute with overseeing particular areas of civil rights law can play a key role in making the pathway for private legal enforcement viable (and not, as we shall see in this chapter). Agencies accomplish this through intentional acts of engagement, not passive abdication of responsibility, meaning the narrative of private legal civil rights enforcement has been missing a key catalyst for its successes, and a key reason for some of its shortcomings. Only when we disaggregate the “civil rights movement” by substance and in its administrative particulars can we see these differences, and the importance of subtle, nearly invisible actions by constrained but creative officials strategically pursuing their agencies’ substantive goals. Pulling in the bureaucracy from the sidelines of the litigation state subnarrative, this chapter argues that regulatory agencies have made quiet but crucial contributions to the development of private legal approaches to rights enforcement in the United States  – contributions that have both activated and deactivated this legal pathway for different areas of civil rights policy. Through a comparative analysis of the actions taken by the Equal Employment Opportunity Commission (EEOC) and the Office of Equal Opportunity in the Department of Housing and Urban Development (HUD), this lens will show that even agency approaches to the rights revolution have not been monolithic – rather, they have varied across substantive areas of policy. Attending to this relationship between the bureaucracy and private legal actors, this chapter will explore the mechanisms by which agency officials can amplify or mute private litigation as an enforcement strategy, and uncover the institutional and political conditions under which civil rights administrators pursue this enforcement strategy.

Legal versus Administrative Approaches to Civil Rights Policy Enforcement Conceptualizing private litigation as a regulatory tool of the American bureaucracy – one of many that can be employed to meet regulatory goals – might seem counterintuitive at face value. Indeed, in most scholarly treatments of regulation in

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the United States, litigation and more explicitly administrative policy implementation strategies are seen as dichotomous alternatives – envisioned not as complementary tools, but alternatives that supplant or place a check on one another in a larger regulatory process.1 It is a mistake, however, to see such a stark disjuncture between administrative and judicial approaches to regulation. Indeed, this misperception is rooted in our conceptions of what “counts” as bureaucratic regulatory behavior. Traditional notions of regulation rely upon a Weberian model of hierarchically controlled bureaucratic administration in which policies are authoritatively enforced according to formal rules by professional bureaucrats, whose actions are clearly distinct from anything that happens in the courts. Under this model, bureaucratic regulatory actions do not rely upon civic cooperation with private actors in the legal system; rather they are imposed by the administrative arm upon the private sphere, privileging the command-and-control functions of the bureaucracy. But this traditional Weberian model fails to capture the way civil rights agencies actually functioned in the twentieth-century United States, a time and place of much less top-down authoritative action and more porous interplay between the public and private. This era was characterized by its own set of new regulatory challenges, not the least of which included the civil rights claims that form this collection’s focal point. Drawing inspiration from the state-building efforts of the New Deal, civil rights advocates clamored for federal rights protections in the form of expansive federal policy to be strictly enforced and policed by newly empowered federal agencies. But proponents of civil rights enforcement faced another legacy of this period: conservative opposition in Congress, in the form of an alliance between anti-statist Republicans and Southern Democrats concerned with protecting their racial hierarchy.2 This conservative alliance blocked policy prescriptions providing 1

2

Stephen Skowronek identified the rise of the administrative state as a turn away from the period of judicial politics that preceded it, see Stephen Skowronek, Building a New American State:  The Expansion of National Administrative Capacities, 1877–1920 (Cambridge:  Cambridge University Press, 1982). Most political science literature examining the nexus of bureaucratic and judicial actions has focused either on how regulatory agencies can initiate state-sponsored litigation against members of civil society to enforce policy – pitting these two approaches against one another – or how private citizens can use litigation to compel captured bureaucratic agencies to do their job and implement congressional policy through administrative means. See Anne Noel Occhialino and Daniel Vail, “Why the EEOC (Still) Matters,” Hofstra Labor and Employment Law Journal 22 (2004): 671–708; David W. Winder and James T. LaPlant, “State Lawsuits against ‘Big Tobacco’: A Test of Diffusion Theory,” State and Local Government Review 32 (2000): 132–141; Mathew D. McCubbins and Thomas Schwartz, “Congressional Oversight Overlooked: Police Patrols Versus Fire Alarms,” American Journal of Political Science 28 (1984): 166–179; Charles R. Epp, Making Rights Real: Activists, Bureaucrats, and the Creation of the Legalist State (Chicago, IL: University of Chicago Press, 2009). See Ira Katznelson and Quinn Mulroy, “Was the South Pivotal? Situated Partisanship and Policy Coalitions During the New Deal and Fair Deal,” Journal of Politics 74 (2012): 604–620; Ira Katznelson,

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for aggressive federal administrative intervention, especially on issues that touched, even obliquely, on race  – a policy maneuver that continued well into the midtwentieth century. As a consequence, what would ultimately emerge from these mid-twentiethcentury negotiations of the proper scope of governmental intervention on civil rights issues was a compromise: a hybrid model of civil rights regulation that created two separate pathways for enforcement through (restricted) administrative authority and a private right of action in the courts. These two regulatory approaches were simultaneously in tension and connected. Faced with the relatively constrained administrative authority of these regulatory agencies, accounts have highlighted the influence of different actors in reshaping the terms of this arrangement. Lack of confidence in administrative authority within Congress resulted in attempts to incentivize private litigation on civil rights claims through legislation.3 As the courts became increasingly friendly to civil rights legal claims, private actors saw this alternative pathway as a route to achieve their goals in court.4 And scholars have likewise pointed to the impatient demands of vocal social groups who, searching for solutions to civil rights issues, eschewed administrative procedures that seemed to move too slowly in favor of potentially faster and more sweeping judicial action.5 A crucial piece of the puzzle is left in the dust of this story of legal mobilization, however: the actual agencies charged with enforcing the law. The strongest versions of the court-centered model sideline administrative agencies by dismissing the idea that agency actors would willingly relinquish regulatory responsibility to the courts and private actors, and not aggressively pursue the mandate with which they were charged. To a great extent this is because most analysts have been operating with a Weberian bureaucracy in mind, and unable to find the strong, authoritative actions they expect, have so concluded that agencies have not played an important role in the development of the litigation-regulatory state.6 But the real story of the regulation of civil rights law is more complicated than traditional models of bureaucratic

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When Affirmative Action Was White:  An Untold History of Racial Inequality in Twentieth-Century America (New York: W. W. Norton & Company, 2005). See, e.g., Robert A. Kagan, Adversarial Legalism: The American Way of Law (Cambridge, MA: Harvard University Press, 2001); Sean Farhang, The Litigation State: Public Regulation and Private Lawsuits in the United States (Princeton, NJ: Princeton University Press, 2010). See, e.g., Paul Frymer, “Acting When Elected Officials Won’t:  Federal Courts and Civil Rights Enforcement in US Labor Unions, 1935–85,” American Political Science Review 97 (2003): 483–99. See, e.g., Sidney Tarrow, Power in Movement:  Social Movements and Contentious Politics (New York: Cambridge University Press, 1994). Notable exceptions include Robert C.  Lieberman, “Weak State, Strong Policy:  Paradoxes of Race Policy in the United States, Great Britain, and France,” Studies in American Political Development 16 (2002): 138–161; David Freeman Engstrom, “Agencies as Litigation Gatekeepers,” Yale Law Journal 123 (2013): 616–648.

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behavior would have us believe. Rather than jealously guarding its claim to regulatory action, this chapter will show how civil rights agencies have consciously and intentionally experimented with shaping the viability of the supposedly “private” alternative route of court enforcement. Attention to these strategies help us see that the supposed dichotomous administrative and legal pathways to enforcement are more connected than we might suppose, especially for actualizing the goals of the rights revolution.

Bureaucratic Mobilization of Private Civil Rights Litigation Given that the final action of private litigation occurs in the courtroom or law office, analyses of private litigation enforcement often neglect the formative role of the bureaucracy in this kind of implementation. This analytic oversight is likely due to assumptions that agency officials would ostensibly defend their own closely held agency prerogatives by emphasizing in-house processing over outside paths for enforcement. But the regulatory context that defined civil rights enforcement in the mid-twentieth century – one in which agencies held only weak authority over scarce resources – made it clear to these officials that they could not come close to handling the workload entirely on their own. Therefore, early administrators at civil rights agencies had good reason to creatively pursue alternate strategies of policy enforcement, particularly by strengthening the quite precarious pathway of legal enforcement paved by the statutorily granted private right to sue. While Congress established this legal pathway, it was emphatically not an easy path to follow  – there were many hurdles and obstacles along the way. As many of these rights claims were being translated into policy in the mid-twentieth century, civil rights advocates voiced concerns about the treacherous and unappealing process of pursuing legal resolutions of civil rights claims. First, most civil rights plaintiffs face social and economic resource deficits (both absolute and relative to the typical defendant), a position often related to the same process that left them vulnerable to discrimination in the first place. From a practical standpoint, this means that many potential clients may lack the necessary financial resources to embark on a costly litigation process. This not only deters potential clients from seeking legal recourse, but can dissuade potential attorneys from taking on such cases, or even more problematic, specializing in an area of litigation that cannot produce litigants who are able to cover the costs of the lawsuit. Civil rights advocates were also conscious of hurdles beyond the initial barrier of finding counsel and initiating a claim. Many civil rights claimants not only lack the financial resources to bring a case in court, but often, the specific contexts in which acts of discrimination take place entail an imbalance of power that can make

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it difficult to develop a successful case. Victims of employment or housing discrimination, for example, bring claims against heavily resourced defendants with strong incentives to mount a prohibitively costly defense. Meeting strict standards of proof in this dynamic can be difficult for plaintiffs, who often do not have ready access to the kinds of evidence, including historical data or evidence of intent that might be necessary for winning a lawsuit alleging discriminatory behavior. Moreover, the actual compensatory damages – salary or economic losses attributable to discrimination – that most claimants seek to recoup in such cases might not even outweigh the costs of the litigation process. These baseline dynamics can make it very difficult to find attorneys willing to take on the civil rights claims of plaintiffs. Civil rights legal claims, therefore, face such formidable obstacles that provisions for a private right to sue are insufficient to effectively fight discrimination without some further change to the playing field. But deep in the nuts and bolts of this area of law there is much that can be done to help mitigate the costs and enhance the viability of civil rights lawsuits. It is in these important details that some civil rights regulatory agencies have come to carve an important and significant role for themselves in helping to shape the litigation process, working to make it a more attractive option for claimants, and effectively mobilizing plaintiffs to bring civil rights claims in court. But the question remains: what moves exactly can civil rights agencies make to change this dynamic? How, in other words, can agencies shape the hybrid administrative-legal models of enforcement that define civil rights regulation in order to translate their expertise and administrative practices in support of mobilization of private action in the courts? They have their ways. Rather than limiting agency actions to the defense, preservation, and enhancement of centralized administrative powers and authority, I identify three strategies that regulatory agencies can creatively and strategically develop and utilize for mobilizing private litigation on civil rights law: adjusting administrative processes, shaping civil rights law, and actively developing and assisting the bar in bringing civil rights litigation. Administrative Processes The first strategy through which agencies may mobilize private litigation on civil rights claims is by organizing internal administrative processes to protect and promote the private right of action in the courts. While other institutions like Congress and the president can shape the enforcement efforts of agencies by drafting rules, shaping operating budgets, or offering regulatory objectives, agencies too can often shape and organize their own internal administrative processes. For a resource-constrained agency, like many of the civil rights agencies created in the mid–twentieth century, such creative attention to internal organization can be particularly important when agency personnel are more concerned with implementation outcomes than they

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are with agency control over process. Such a disposition entails openness to new approaches and to shifting agency resources and manpower away from traditional command-and-control enforcement actions and toward the establishment of administrative approaches that make private litigation a more economically viable alternative for private actors once they get to the courts. An agency can, for instance, enhance the viability of a plaintiff’s claim in court by issuing administrative decisions and findings that tend to support claimants’ cases down the line. Even more basically, an agency can streamline administrative complaint processes so as to not unnecessarily delay litigation activity – a crucial step when plaintiffs face such resource disadvantages and time is of essence. They can take steps to collect evidence that can be used in cases by mandating reporting requirements for regulated interests. When the agency collects and disseminates data on statutory violations, such information can be invaluable as evidence to strengthen plaintiffs’ cases at little or no cost to the litigant – thereby supplementing the expense of discovery and significantly reducing the costs of engaging in private litigation. These kinds of manipulations of an agency’s administrative processes can be accomplished almost entirely in-house, within the agency, with relatively low levels of resources and with significant autonomy from outside political actors. Shaping the Law The second course by which agencies can mobilize private litigation is adopting an active role in the construction of a body of law that will benefit citizen suits. While Congress statutorily stipulates the provisions of regulatory policy, unavoidable (or sometimes intentional) ambiguity in these provisions can be exploited and subjected to administrative and judicial interpretation. An agency can step into this void, constructing a body of law that enhances the viability of private litigation in a variety of ways. For instance, agencies can issue guidelines and regulations that offer agency expert legal interpretations that favor plaintiffs’ cases. Courts have (at times) shown deference to civil rights agency interpretations of policy provisions under their regulatory purview, directly shaping the conditions under which a plaintiff’s lawsuit might prevail. An agency can also enter more directly into the private legal enforcement process by filing amicus curiae briefs or intervening in ongoing private lawsuits – especially those that are likely to be formative cases and set precedent. Such actions have two major effects. First, they absorb some expenses related to discovery and court filings, thereby reducing the costs of private litigation to the plaintiff. And, second, these briefs clarifying points of law and supporting plaintiff positions can increase the probability that the suit at hand – and, crucially, similar lawsuits in the future – will prevail.

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Assisting the Bar Finally, regulatory agencies can fundamentally shape the “market” for private litigation by assisting with the development of a private bar that can take on cases not settled through the agency’s administrative process. The success of private legal enforcement of policy hinges on the presence of a trained and formidable private bar that can litigate a large volume of cases with expertise. But when a private right to sue is first created by Congress, attorneys are not automatically present on the new legal terrain. Attorneys must be quickly recruited to practice in this new area of law, trained to bring lawsuits on these new policies, and must then be kept abreast of changes to regulations, rules, and legal precedent over time. Regulatory agencies can help develop and maintain an effective private bar through a series of creative actions. For instance, agencies can develop programs to offer direct economic incentives such as financial support for private litigation. Litigation funding not only reduces the costs of litigation, which itself encourages forceful pursuit of a claim, but it can also shape an entire field of litigation. These agency funding programs, first, can encourage attorneys to take on cases from less wealthy claimants, which is especially important in new fields of legal action, like civil rights, where the plaintiffs are historically and systematically economically disadvantaged. This limits the risk taken on by attorneys in such cases. Second, these funding programs also enhance the viability of an entire field of litigation by giving attorneys  – who may be wary of fronting firm money and resources on risky yet possibly formative cases – an incentive to pursue these important cases and create favorable precedent for future plaintiffs’ claims. Devoting resources to early cases – and helping them succeed – serves as a catalyst for a self-sustaining area of law down the line. Agencies can also creatively develop training programs for members of the private bar. These training programs offer practical, strategic advice to attorneys on how to bring cases under civil rights laws, and keep attorneys apprised of the legal changes that have occurred in recent cases, enhancing the probability of a successful lawsuit. Finally, agencies may actively partner with private attorneys during the litigation process itself and offer direct litigation support, including access to evidence and investigation files, and legal guidance. By supplying evidence or information recovered through administrative processes or offering agency opinion on how to proceed with a case, an agency can help ensure the viability of a lawsuit. While the previous two strategies operate by levelling the playing field for plaintiffs, this set of attorneycentric tactics helps put key legal players on the field and keep them there. The private litigation enforcement pathway can be more viable in practice when agency officials charged with enforcing anti-discrimination laws employ these tools to enhance the path’s power. The next section of this chapter will demonstrate how

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administrators charged with regulating equal employment and fair housing law – at the Equal Employment Opportunity Commission (EEOC) and at the Office of Equal Opportunity at the Department of Housing and Urban Development (HUD) – experimented with these tools at the formative moments after Congress established an important but not quite viable right to sue under the Civil Rights Acts of 1964 and 1968, respectively. As we will see, while administrators at these civil rights agencies had varied success in doing so – with the Office of Equal Opportunity at HUD considering, but failing to fully implement, the successful private legal mobilization strategies developed by the EEOC  – they did not sit on the sidelines as mere spectators in this process. Rather, these agency administrators actively tried to develop the tools described previously, in combination or recombination, to bolster the regulatory role of private litigation in fair employment and fair housing law. These moves, and their relative levels of success by the agencies, were crucial forces in shaping the respective developmental narratives on the private legal enforcement of these different areas of civil rights law.

Off to the Courts? A Comparison of Fair Employment and Fair Housing Regulation Before the passage of the Civil Rights Acts of 1964 and 1968, federal efforts to contain widespread employment and housing discrimination were limited in scope and effectiveness. Constrained by conservative recalcitrance, efforts were narrow, primarily based on executive orders, and focused on combating discrimination in government projects and programs receiving federal funds.7 Conscious of the limited coverage and effect of these civil rights provisions, however, civil rights advocates demanded more effective and encompassing equal employment and housing opportunity legislation. The landmark legislative responses to these demands – Title VII of the Civil Rights Acts of 1964 and Title VIII of the Civil Rights Act of 1968, which outlawed employment and housing discrimination, respectively  – created strikingly similar regulatory milieu in which the civil rights administrators at the EEOC and HUD began to operate. Central to the demands of civil rights advocates was the creation of administratively empowered agencies capable of aggressively enforcing discrimination in the workplace and in housing. Working with liberal Democrats in Congress, these 7

For fair housing, see Executive Order No. 11,063, 3 C.F.R. 652 (1959-63 Comp.). For employment discrimination, see Executive Order 8802 (3 C.F.R. 957) of 1941, which established the Fair Employment Practices Commission to regulate employment discrimination in defense contracts and Executive Order 10925 (3 C.F.R. 448) of 1961 (superseded by Executive Order 11,246 of 1965), which created the Office of Federal Contract Compliance in the Department of Labor to enforce equal employment policy in government contracts.

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groups insisted that both strong cease-and-desist powers and agency authority to bring lawsuits in the courts against violators were key to the successful enforcement of fair employment and housing goals. Congressional conservatives had other ideas, however. An alliance between conservative Republicans and Southern Democrats seeking to undermine state-building activities that concentrated regulatory power at the federal level – especially, for Southern Democrats, on social and policy issues pertaining to race – effectively blocked the liberal cease-and-desist bill proposals, resulting in a legislative stalemate.8 On both the employment protections provided in Title VII and the fair housing protections provided in Title VIII, however, (nearly identical) concessions for enforcement were reached through a compromise plan organized by Senator Dirksen (R-IL). Under the compromise measures, limited administrative authority would be conferred to a federal agency – the regulation of employment discrimination law with a new EEOC and the regulation of fair housing law through a new Office of Equal Opportunity to be integrated into the already established HUD. In place of the strong administrative cease-and-desist powers that civil rights advocates had proposed, however, each agency was instead granted an authority to investigate and conciliate discrimination complaints – a mediation function performed by the agencies without the force of law, leaving administrators powerless to engage in command-and-control-type regulatory actions on behalf of the civil rights laws they administered. Under these conditions, administrative actions at each of the agencies largely faltered in the early years. Complaints of employment discrimination undergoing the mediation processes at the EEOC, for instance, more often than not ended without conciliation, with the agency successfully conciliating only 3 percent of the charges that were filed in the first couple of years. The administrative responsibilities of the Office of Equal Opportunity were similarly taxed:  the agency was able to reach conciliation on an average of only 14 percent of the charges that it received each year. The direct administrative authority desired by activists was hamstrung from the start. But as part of the Dirksen compromise, Congress also granted a private right of action for citizens to bring fair employment and housing litigation in the courts under both Titles VII and VIII. The congressional recipe for the enforcement of both employment and housing discrimination statutes, therefore, included two regulatory pathways: a (largely ineffective) direct administrative route provided by the agencies’ complaint processing

8

On the Republican–Southern Democrat alliance, see Lieberman, “Weak State, Strong Policy”; Katznelson, When Affirmative Action Was White; Sean Farhang and Ira Katznelson, “The Southern Imposition:  Congress and Labor in the New Deal and Fair Deal,” Studies in American Political Development 19 (2005): 1–30; Katznelson and Mulroy, “Was the South Pivotal?”

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systems and a (costly and risky) legal route that relied upon private citizens bringing complaints in the courts. Few acting in the civil rights revolution at the time were optimistic that this regulatory scheme – an outcome designed by the conservative coalition – was a promising regime for robust enforcement of the statutes. The benefit of hindsight, however, has shown the results to be mixed, as will be illustrated in the historical narratives of these two different civil rights policy areas to follow. Early administrators at the EEOC seized upon and paved this legal pathway, finding ways to make Title VII litigation a more viable option for private citizens. Across town at HUD, a very different regulatory approach prevailed. While the EEOC provided lessons on how to successfully develop strategies for mobilizing private litigation under this hybrid regulatory scheme and administrators at HUD’s Office of Equal Opportunity attempted to implement many of the same strategies, their efforts were largely thwarted by HUD leadership, which – faced with competing agency goals and missions that were often at odds with the antidiscrimination goals of Title VIII – balked at efforts to creatively promote fair housing enforcement in the courts.9 Rather, as we will see in the following analysis of the early, formative regulatory strategies implemented at each of these agencies, the enforcement of fair housing laws has been limited to those administrative means formally granted to the agency by Title VIII, eschewing the creative approaches the EEOC crafted to make enforcement of equal employment law more realistic via private actions in the courts. Employment Discrimination Regulation at the EEOC (1964–1972): Paving a Pathway to the Courts Early administrators at the EEOC quickly recognized and acknowledged the weak administrative authority granted by the Civil Rights Act of 1964 and came to instead frame their own duties in terms of facilitating the success of the private legal actions in the courts. Rather than committing resources to developing a formidable administrative charge processing system, early administrators at the agency organized its administrative processes as an important and formative “first stage” of the litigation process. As the agency’s first Chief of Conciliations, Alfred Blumrosen, would later claim, administrators at the EEOC decided that the individual right to sue would

9

Comparisons between the equal employment and fair housing regulation have received significant scholarly attention. See, e.g., Michael Selmi, “Public vs. Private Enforcement of Civil Rights: The Case of Housing and Employment,” UCLA Law Review 45 (1997): 1401–1459; Christopher Bonastia, Knocking on the Door: The Federal Government’s Attempt to Desegregate the Suburbs (Princeton, NJ: Princeton University Press, 2006).

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“permeate th[e] entire process” of administrative charge handling by the EEOC, and that each stage was viewed as part of the litigation process.10 Framing the administrative charge system as a preliminary phase of the litigation process, the EEOC sought to ensure that agency findings or rulings would not preclude charging parties from successful pursuit of their claims in court. Given that potential legal claims would first be subject to an agency determination of whether or not there is “reasonable cause” that discrimination occurred, early administrators took steps to ensure that “reasonable cause” findings from the agency would be loosely and generously granted, and not held to the strict preponderance of evidence standards of proof that would be required of lawsuits in court.11 This allowed agency personnel to signal to a claimant, his or her attorney, and the courts that many of these unresolved charges had merit and were worthy of court action.12 Relaxing the standards for agency reasonable cause findings not only made it easier to grant more charges an agency “stamp of approval” as they entered the courts system, but they simultaneously helped to shape the very definition of what constitutes employment discrimination in the courts.13 Administrators at the EEOC recognized the importance of actively shaping and redefining a body of law to level the playing field for plaintiffs once they reached the courts – an important task given the burdensome definition of employment discrimination stipulated by Title VII. Expanding the types of acts that would fall under this definition was a key project for the agency. According to the language of Title VII, the EEOC (and private actors in the courts) were charged with addressing and regulating individual acts of intentional discrimination. In practice, however, this language created an onerous evidentiary burden for the plaintiff. Absent a smoking gun document revealing the employer’s discriminatory intent, plaintiffs and their attorneys were unlikely to uncover the evidence necessary for meeting this “intent” standard, severely disadvantaging plaintiffs’ Title VII claims in court. In response, early administrators at the EEOC began to issue legal interpretations and guidelines to expand Title VII’s

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Alfred Blumrosen, “The Individual Right to Eliminate Employment Discrimination by Litigation,” National Archives and Records Administration (hereafter “NARA”), EEOC Record Group 403 (hereafter “RG 403”), Office of the Chairman, Records of Chairman Stephen Shulman, 1966–1968, Box 8, Office of Compliance. Robert Belton, “A Comparative Review of Public and Private Enforcement of Title VII of the Civil Rights Act of 1964,” Vanderbilt Law Review 31 (1978): 918. Michael Selmi, “The Value of the EEOC:  Reexamining the Agency’s Role in Employment Discrimination Law,” Ohio State Law Journal 57 (1996): 44. Alfred W.  Blumrosen, “Administrative Creativity:  The First Year of the Equal Employment Opportunity Commission,” George Washington Law Review 38 (1970): 733. See also Cornelius J. Peck, “The Equal Employment Opportunity Commission: Developments in the Administrative Process,” Washington Law Review 51 (1976): 849.

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narrow focus to include more generalized, pattern-and-practice discrimination.14 This agency interpretation of discriminatory conduct – which may not be personal, but rather systemic and detectable largely in the aggregate – was a crucial shift for plaintiffs, allowing them to use patterns of conduct by an employer, rather than intent, as evidence of discrimination. In addition to reorganizing agency procedures and shaping legal interpretations to level the playing field for plaintiffs, the EEOC also devoted resources to putting more capable players on this field, providing help and assistance to attorneys so they would be better able to bring Title VII cases. First, administrators at the EEOC developed a data system to collect evidence needed to bring pattern-and-practice claims in court, creating an accessible national reporting system that required employers to report demographic information about their personnel to the agency.15 Moving beyond the claim-processing role outlined in Title VII, in other words, administrators at the EEOC worked to offer direct litigation support to organizations and attorneys formulating employment discrimination lawsuits. In an intentional effort to foster cooperative relationships with civil rights organizations like the National Association for Advancement of Colored People (NAACP), the agency organized meetings to discuss and develop regulatory strategies, and provided these groups with direct support on litigation matters.16 But administrators at the EEOC also recognized the limitations of relying on civil rights organizations alone to bring Title VII litigation. Like the EEOC itself, the enforcement efforts of these civil rights organizations were ultimately restricted by a finite pool of resources that would make it impossible to effectively tackle employment discrimination nationwide. As such, administrators at the EEOC responded with efforts to increase that pool of legal resources by mobilizing a private employment bar to take on this massive workload that could not be accommodated by civil rights organizations, nor the agency’s cumbersome and inefficient charge processing system.17 Thus, knowing full well the difficulty that claimants had in locating legal representatives to take on their EEO claims – as this was a new legal field – administrators at the EEOC instituted training programs to develop a legion of employment 14

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First Annual Report by the Equal Employment Opportunity Commission (Washington, DC: GPO, 1966), 15. Memorandum, Franklin D.  Roosevelt, Jr. (Chairman) to Charles T.  Duncan (General Counsel), October 12, 1965, Re:  Title VII, Section 709  – Need for Uniform National Reporting System, RG 403, Office of the Chairman, Records of Chairman Stephen Shulman, 1966–1968, Box 2, General Counsel: Inter-Office Memos. See also Blumrosen, “Administrative Creativity,” 718. See Belton, “A Comparative Review of Public and Private Enforcement”; Lieberman, “Weak State, Strong Policy.” See, e.g., Peck, “The Equal Employment Opportunity Commission,” 860; Belton, “A Comparative Review of Public and Private Enforcement,” 951.

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discrimination lawyers to take on Title VII cases  – all in an effort to recruit new and seasoned attorneys alike to this new area of law.18 Recognizing the economic vulnerability of plaintiffs’ attorneys in taking on costly employment discrimination cases for often financially strapped clients, administrators at the EEOC also later experimented with programs to reduce the costs of EEO litigation, providing funding to private attorneys and legal organizations bringing employment discrimination lawsuits.19 Through recruitment, training, and litigation funding programs, the EEOC sought to ensure that a formidable team of private attorneys general would be available, ready, and resourced to take on enforcement through the courts. Despite – and indeed in response to – the lack of empowered, statutorily granted administrative authority, early administrators at the EEOC creatively paved an alternate legal pathway for private employment discrimination enforcement in the courts. In the face of a weak and ineffective administrative charge process, administrators at the EEOC experimented with new approaches to the regulation of the civil rights law under its purview, and focused resources and attention on activating and facilitating the legal arm of the hybrid administrative-legal model of regulation established by Title VII. Fair Housing Regulation at HUD (1968–1972): Blocking a Private Legal Pathway While early officials at the EEOC were aggressively building the infrastructure upon which to build a formidable private litigation enforcement strategy, developments at the Office of Equal Opportunity at HUD four years later were quite different. As at the EEOC, in-house administrative procedures were incapable of regulating this massive sector of activity, so fair housing officials considered efforts that would complement these processes via other channels. Officials within HUD’s Office of Equal Opportunity recognized the regulatory potential of private fair housing litigation as a tool in the fight against housing discrimination and suggested proposals for protecting and promoting the private right of action in the courts. In the end, however, these efforts were not as central to the fight against housing discrimination as they were in employment. This difference was due in large part to the place of anti-discrimination within HUD’s portfolio of responsibility. The Office of Equal Opportunity was one of many offices within HUD, each promoting a diverse set of programs with varied goals. 18

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Letter from Stephen Shulman, March 17, 1967, NARA, RG 403, Office of the Chairman, Records of Chairman Stephen Shulman, 1966–1968, Box 5, Mr. Shulman – General. Eleanor Holmes Norton to Donald P. Leary, Associate Director Claims Group – AFMD, US General Accounting Office), December 10, 1980, NARA, RG 403, Chairman’s Chronological File 1976–1999, Box 2, Chron Dec 1980.

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Indeed, the bulk of the department’s resources and strategic planning was targeted toward programs like mortgage lending, community planning and development, the construction and management of public housing, and the administration of housing grants to local authorities. But rather than the Office of Equal Opportunity institutionalizing its fair housing objectives into the day-to-day operations of HUD’s other programs, fair housing remained a secondary – and often controversial – interest at the department.20 As the Office of Equal Opportunity worked to impede and sanction discriminatory housing practices, it engaged in regulatory activity at odds with the “pro-segregative legacy” of much of the department’s programs.21 In this institutional organization – where fair housing goals and staff were buried in a tangle of heterogeneous and conflicting agency programs – anti-discrimination objectives regularly took a secondary position to the department’s more prioritized programs. The institutional ambiguity around fair housing hamstrung Office of Equal Opportunity officials’ impulses to move beyond its formal charge processing role and shape private legal remedies, as administrators at the EEOC had done so successfully. To the degree that the Office of Equal Opportunity was limited in promoting fair housing initiatives, it could not produce creative regulations, legal interpretations, and procedures that would benefit private litigation in the courts. Ten years after the passage of Title VIII, for instance, no new substantive fair housing regulations had been issued by the department.22 The absence of swift and bold departmental regulations on fair housing law denied fair housing claimants and their attorneys the favorable agency interpretations needed to bolster their legal claims in court. Even though the courts were enthusiastic to support agency efforts to combat widespread housing discrimination in the late 1960s and early 1970s, then, official departmental legal positions did little to enhance the viability of private fair housing litigation. Unlike the EEOC, which looked beyond its case-by-case processing system to issue creative guidelines and legal interpretations in support of class action and pattern-and-practice private lawsuits alleging discriminatory effects, HUD’s Office of Equal Opportunity was confined by legal interpretations offered by HUD leadership, which defined Title VIII violations only in terms of individual acts of intentional discrimination. This standard presented a substantial evidentiary and 20

21

22

Christopher Bonastia, “Why Did Affirmative Action in Housing Fail During the Nixon Era? Exploring the ‘Institutional Homes’ of Social Policies,” Social Problems 47 (2000): 539. Ibid., 537; Kenneth T.  Jackson, Crabgrass Frontier:  The Suburbanization of the United States (New  York:  Oxford University Press, 1985); Douglas S.  Massey and Nancy A.  Denton, American Apartheid (Cambridge, MA: Harvard University Press, 1993). Sanford Watzman, “HUD Dragging Feet on Fair Housing,” March 5, 1970, NARA, HUD Record Group 207 (hereafter “RG 207”), Office of the Under Secretary: Reading File of G. Richard Dunnells, 1969, Box 25, Equal Opportunity 1970 Part II (2 of 2).

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financial burden to plaintiffs and limited the viability of litigation as a tool to fight discriminatory housing practices. The department was also a more reluctant partner with outside groups than the EEOC. HUD was quite slow to provide the evidentiary statistics necessary for bringing lawsuits under Title VIII to fair housing groups and individual litigants. The department was particularly slow to publicly produce statistics on neighborhoods in which HUD housing programs were based, presumably in order to protect competing HUD housing production objectives. When it finally issued nationwide data four years after the enactment of the Fair Housing Act, HUD still “indicated some reluctance to furnish…data on a local community basis”23 – data that was critical for demonstrating discriminatory real estate patterns in private fair housing suits.24 Efforts within the Office of Equal Opportunity to take formal stances in support of private fair housing litigation were likewise met with resistance from the leadership at HUD. Even the smallest efforts by fair housing administrators to provide guidance and assistance to private litigants and their attorneys were shut down by HUD leadership. In one episode, a proposal by fair housing administrators to publish a guide to the practice of fair housing law met major opposition from leadership at the agency, which doubted “whether the education of the legal profession on how to prepare and try ‘open housing’ lawsuits is the proper function of the Department.”25 HUD leadership made it clear that it did not consider guidance on private litigation to be a proper role for the department – largely discarding a tool shown by the EEOC to be important to the viability of private civil rights litigation. Constrained from acting much outside of its formal charge processing role, the Office of Equal Opportunity was unable to forge a viable pathway for private fair housing regulation through the courts in the years following the enactment of Title VIII. In this far-from-receptive institutional environment, private fair housing litigation failed to flourish as a regulatory tool for Title VIII enforcement (see Figure 2.1). While HUD’s Office of Equal Opportunity staff, like early administrators at the EEOC, recognized – and attempted to pursue – the regulatory potential of private litigation, their enforcement goals conflicted with more prioritized programs within the broader department, limiting their ability to develop private legal approaches to fair housing enforcement. 23

24

25

Excerpt from US Commission on Civil Rights Report, “The Federal Civil Rights Enforcement Effort: One Year Later,” November 19, 1971, NARA, RG 207, Office of the Under Secretary: Reading File of G. Richard Dunnells, 1969, Box 26, Equal Opportunity 1971–72 Part IV (2 of 3). Robert G.  Schwemm, “The Future of Fair Housing Legislation,” John Marshall Law Review 26 (1992): 224. Memorandum, Richard C.  Van Dusen to Samuel J.  Simmons, December 2, 1971, Re:  Chicago Leadership Council “Guide to the Practice of Open Housing Law,” NARA, RG 207, Office of the Under Secretary: Reading File of G. Richard Dunnells, 1969, Box 26, Equal Opportunity 1971–72 Part IV (2 of 3).

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Approaches to Enforcing the Rights Revolution Private Equal Housing Opportunity (EHO) and Equal Employment Opportunity (EEO) Litigation Filedin US District Courts

# of Lawsuits

20000 15000 EEO

10000 5000

EHO 0 1969 1972 1975 1978 1981 1984 1987 1990 1993 1996 1999 2002 2005 2008

Figure  2.1 Private fair housing litigation (thin line with hollow points) and private equal employment opportunity litigation (thick line with solid points) filed in the US District Courts, 1970–2008. Source: “Federal Court Cases: Integrated Database” available from the Inter-University Consortium for Political and Social Research.

The Legacy of Administration and Legal Approaches to Civil Rights Regulation There is a powerful, common narrative in the history of twentieth-century civil rights politics that focuses on landmark cases and attests to the important role of legal strategies in winning victories against white supremacy when the other branches of government did not support those efforts. In speaking of a civil rights movement, however, we can miss the ways in which civil rights are variably identified, enforced, and protected across different substantive areas of subjugation and formal inequality. This is true even within the world of litigation enforcement. As illustrated by the comparative narratives of anti-discrimination efforts in employment and housing discussed in this chapter, private legal mechanisms have been cultivated and used as effective tools for the enforcement of some civil rights claims, but not others. To analyze the promise of various regulatory goals and enforcement strategies of civil rights law requires a deeper understanding of how regulation operates differently across these areas of social and economic life. Why and how did these different civil rights enforcement regimes emerge? Why did legal pathways of civil rights enforcement prevail for some types of discriminatory conduct, while an administrative path remained so central on others? Although most scholarship shines a light on the role of Congress, civil rights groups, and

4

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the courts themselves as drivers of litigation enforcement power, as the analysis borne by the comparison of employment and housing discrimination regulation lays bare, federal agencies charged with civil rights enforcement were also crucial actors, cultivating or impeding the institutional conditions necessary for the private legal enforcement of these laws. While placed into strikingly similar hybrid models of administrative and private legal enforcement by Congress, early administrators of employment and housing discrimination regulation faced different institutional conditions  – one that allowed for the creative experimentation with private legal strategies of employment discrimination enforcement, and another that limited the freedom of fair housing administrators to apply lessons of the private EEO legal enforcement to fair housing regulation. This comparison of the regulatory regimes that prevailed in these two civil rights cases, then, speaks to the overwhelming contingency of strategies of policy enforcement. Through more nuanced understandings of the interactions between the courts, agencies, and civil society, we can analyze the confluence of highly contingent factors that contribute to prevailing approaches of civil rights enforcement – in this case, the active cooperation of agency administrators in creating an effective private litigation regime for enforcement of civil rights claims. Without the cooperation of this central clearinghouse, the private legal strategies of civil rights enforcement that had been so successfully cultivated by administrators at the EEOC faltered in support of fair housing – contributing to two very different approaches to regulation fostered by these civil rights agencies. Far from being removed from the decision to pursue more administrative or private legal pathways to the enforcement of civil rights laws, then, agency actions are a necessary substrate on which to build strategies for regulation. Early actions by administrators at the EEOC and the Office of Equal Opportunity at HUD had a lasting impact on the development of employment and housing discrimination regulation going forward. Over the years, these two divergent paths developed their own momentum, impacting later rounds of legislation and agency actions on the substantive areas they regulated. Private litigation mobilization remained a regulatory tool that the EEOC could activate for years to come. It was so effective that private employment discrimination litigation became the preferred, go-to method of civil rights advocates for implementing Title VII law, and the prime target of opponents of aggressive employment discrimination regulation – a new ideological positioning on approaches to Title VII enforcement that was reflected in the debates leading up to the Civil Rights Act of 1991 (in which Congress revisited employment discrimination policy).26 26

See Chapter  3 in Quinn Mulroy, “Public Regulation through Private Litigation:  The Regulatory Power of Private Lawsuits and the American Bureaucracy” (PhD diss., Columbia University, 2012).

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With respect to fair housing, however, because the conditions necessary for successful fair housing litigation never came to fruition, there was little change in positions on regulatory approaches when fair housing policy was revisited in the 1988 Fair Housing Amendments Act. Fair housing advocates continued to support command-and-control enforcement and the conferral of more administrative authority, while conservatives embraced private litigation as a regulatory tool.27 Perhaps more than any other issue, this respective positioning on these two areas of civil rights law reveals the tension between supposedly deep philosophical attitudes toward centralized government power and preferences about outcomes in particular areas of policy. Despite conventional notions that liberals champion an administratively centered approach to regulation and that conservatives prefer options allowing for private governance, with these two cases, we see how ideological positioning on this important topic can change according to policy substance, even within a policy category like civil rights. In the comparison of these formative moments of both agencies, then, we get a useful lens for understanding the bureaucratic choice between pursuing legal and administrative strategies for civil rights policy enforcement – and for explaining why and how some civil rights agencies might choose to promote a pathway of regulation in the courts, and others may not. An institutionalized structure of support for private litigation and a historical reliance on private litigation as an effective tool of enforcement – as was the case with employment litigation, but not so much for fair housing litigation  – were key elements for legitimating private litigation enforcement as a compelling regulatory strategy to civil rights advocates. By better understanding these often deliberate and strategic choices by bureaucratic actors, we can gain a more complete perspective on what civil rights regulation looks like in the American state in its many forms, and how, ultimately, the distinct substantive regulatory goals of the rights revolution might be differently achieved.

27

Hugh Davis Graham, “The Surprising Career of Federal Fair Housing Law,” Journal of Policy History 12 (2000): 223.

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3 Mobilizing Rights at the Agency Level: The First Interpretations of Title VII’s Sex Provision Jennifer Woodward

When the Equal Employment Opportunity Commission (EEOC) opened its doors on July 2, 1965, it faced an instant backlog of nearly 1,000 claims collected by the National Association for the Advancement of Colored People (NAACP).1 As Mulroy points out in Chapter 2, the EEOC encouraged private action as the appropriate path to develop rights under Title VII of the Civil Rights Act of 1964 (CRA 1964) in response to the facilitation of race-based claims by civil rights groups.2 Meanwhile, the EEOC only began providing the right to sue in the courts for many sex-based claims when it found itself divided on its interpretations of the sex provision in response to an unexpected number of sex-based claims (2,503 sex-based claims in 1966 alone).3 The push for EEOC’s litigation powers (which were lost during congressional compromises) and subsequent actions by both the EEOC and civil rights groups to frame the EEOC as weak and ineffective paved the way for private litigation to form the basis of Title VII law.4 As a result, it would become vital to development of the sex provision for an interest group to help women bring their claims to courts, like the NAACP aided those with race-based claims. Yet the courts are not necessarily the best venue for advancing civil rights despite the focus civil rights activists and scholars place on litigation strategies. By refocusing the Title VII story on the experiences of individual claimants and the regulatory 1

2

3

4

Nicholas Pedriana and Robin Stryker, “The Strength of a Weak Agency: Enforcement of Title VII of the 1964 Civil Rights Act and the Expansion of State Capacity, 1965–1971,” American Journal of Sociology 110 (2004): 711. Claims made on the basis of race and color are collectively referred to as race-based claims to correspond with the data collection of the EEOC. “Shaping Employment Discrimination Law,” US Equal Employment Opportunity Commission (accessed January 17, 2012), www.eeoc.gov/eeoc/history/35th/1965–71/shaping.html. Pedriana and Stryker, “The Strength of a Weak Agency.”

This chapter is based on Jennifer Woodward, “Making Rights Work: Legal Mobilization at the Agency Level,” Law & Society Review 49 (2015):  691–723 and published with permission from John Wiley and Sons.

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power of the EEOC during the first years of the agency, we see the potential of agencies to develop rights outside of the courts. By eliminating the implementation constraint and mitigating some of the obstacles of bringing claims to the courts, new and novel legal claims by individuals have the potential to influence the law and society through the claims they submit to agencies.5 Individual claims submitted to agencies not only place issues on the agenda of an agency, they also present visions of law the agency may either reinforce or abate. Most Title VII legal claims brought before 1969 were not interpreted by the courts, but by the EEOC via its responses to individual claims and regulatory power.6 The agency’s regulations have “the same weight as congressional legislation, presidential executive orders, and judicial decisions,” but are often overlooked in studies regarding Title VII development.7 Yet the claims made to the EEOC and the responses they received demonstrate how Title VII rights were made real by the agency and how the agency made law, like the courts, in response to the legal claims made by individuals and interest groups.8 When desired visions of law are translated into demands for action, the law is mobilized.9 In response to claims, an agency can shape society through their reinforcement of the demand, providing a form of legitimacy to the right or vision of law provided by the claimant. The agency may also delay acting on the claim, or even deny it. On one hand, agency delays and denials can delegitimize the vision of rights claimed and create feelings of reduced political efficacy in individuals.10 On the other hand, these actions can result in counteractions and rights mobilization as individuals challenge the delay and denial of their perceived rights.11 I wanted to know if agencies could create social change through the “expansion of goals, opportunities, and capacities for extending struggles” scholars attribute to the

5

6

7

8

9 10

11

Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring about Social Change? 2nd ed. (Chicago, IL: University of Chicago Press, 2008). Benjamin W.  Wolkinson, Blacks, Unions, and the EEOC:  A Study of Administrative Futility (Lexington, MA:  Lexington Books, 1973), 2; Jennifer Woodward, “Making Rights Work:  Legal Mobilization at the Agency Level,” Law & Society Review 49 (2015): 691–723. Cornelius M. Kerwin, Rulemaking: How Government Agencies Write Law and Make Policy, 2nd ed. (Washington, DC: Congressional Quarterly Press, 1999), 3. Charles R. Epp, Making Rights Real: Activists, Bureaucrats, and the Creation of the Legalistic State (Chicago, IL: University of Chicago Press, 2009); Frances Zahn Zemans, “Legal Mobilization: The Neglected Role of the Law in the Political System,” American Political Science Review 77 (1983): 690–702. Zemans, “Legal Mobilization,” 700. Joe Soss, “Lessons of Welfare:  Policy Design, Political Learning, and Political Action,” American Political Science Review 93 (1999): 363–80. Michael McCann, Rights at Work:  Pay Equity Reform and the Politics of Legal Mobilization. (Chicago: University of Chicago Press, 1994); George Lovell, “Justice Excused: The Deployment of Law in Everyday Political Encounters,” Law & Society Review 40 (2006): 283–324.

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courts during ongoing processes of legal mobilization.12 In looking at whether legal mobilization can occur at the agency level, I asked: How and why did the EEOC respond to claims made under Title VII between 1965 and 1968 and to what extent did the responses result in remedies, mobilization, or other outcomes? Through the dynamic process of legal interpretations occurring during the early years of the EEOC, I found McCann’s theory of legal mobilization is generalizable to government agencies.

Legal Mobilization Framework Nearly sixteen years before the County of Washington, Oregon v.  Gunther (1981) Supreme Court decision on pay equity McCann uses to open his discussion in Rights at Work, women were writing to the EEOC stating they were not being paid equally for the same services provided by their male coworkers.13 The Equal Pay Act of 1963 was not working. A new law, the CRA of 1964 was passed and while women were seen as accidental beneficiaries, women saw the equal employment opportunity provisions under Title VII as the remedy to their demands for equal pay and other issues of workplace inequality. Legal consciousness scholarship focuses on how law is conceived by individuals outside the state, rather than by state officials.14 This view considers individuals not as passive or reactionary actors to the law, but “savvy participants in dynamic processes in which both citizens and government officials articulate, evaluate, and dispute competing visions of law.”15 As such, individuals are able to mobilize the law to advance creative, expansive, and novel interpretations of new legal rights. Lovell’s research demonstrates how individuals are political actors shaping society through the claims they make to government agencies.16 While Lovell explains the importance of legal claims in a pre-movement stage, the formation of the National Organization for Women (NOW) in response to EEOC interpretations of the sex provision of Title VII shows the importance of individuals and interest groups in transitioning from

12

13

14 15 16

Michael McCann, “Causal versus Constitutive Explanations (or, On the Difficulty of Being so Positive),” Law and Social Inquiry 21 (1996): 481–82. McCann, Rights at Work; Case number 5-10-1572, Box 1 Compliance General Correspondence, Compliance Division 1965–1966, Records of the Equal Employment Opportunity Commission (EEOC), Record Group 403 (RG 403), National Archives at College Park, MD (NACP). McCann, Rights at Work, 8. Lovell, “Justice Excused,” 285. Lovell, “Justice Excused;” George I. Lovell, This Is Not Civil Rights: Discovering Rights Talk in 1939 America (Chicago: University of Chicago Press, 2012).

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the pre-movement stage into McCann’s four stages of legal mobilization at the agency level.17 McCann divides legal mobilization into four stages: 1. the movement building process where citizens have rising expectations for change, activate constituents and form alliances, and organize their resources for action; 2. the struggle to compel formal changes in official policy in order to address the movements demands; 3. the struggle for control over actual reform policy development and implementation among interested parties; and 4. the transformative legacy of legal action, which results in subsequent movement development, additional alliances, new rights claims, policy reforms, and social struggles.18 The first stage of legal mobilization for Title VII’s sex provision came in the wake of the passage of the CRA of 1964. Women joined the ranks of other groups with rising expectations for changes in employment conditions. When they wrote to the EEOC, women often expressed similar sentiments about their rights under Title VII. The failure of the EEOC to endorse this “rights talk” led a constituency of government workers and women’s rights activists to form an alliance – in the form of NOW.19 In advocating for stronger enforcement of the sex provision of Title VII, NOW entered the second stage of legal mobilization. The organization struggled to compel formal changes in Title VII interpretations by the EEOC to make them more in line with the agency’s rulings on the race-based provision of the law. This struggle was seen through agency rulings on help wanted advertisements, claims from flights attendants, and via EEOC responses to aspirational views of Title VII protections regarding state-protective legislation. As NOW grew and the EEOC processed its backlog of claims, the struggle for control over policy development and implementation placed NOW in a position to ask for a larger role in the interpretation and advancement of Title VII law. NOW grew into its role as an “NAACP for women” by demanding a place at the policy table.20 Thus, NOW entered into the third stage of legal mobilization. 17

18 19 20

I show that early claims to the EEOC raised issues that helped revitalize the existing women’s right movement and became a catalyst for the liberal legal agenda of the next wave of feminism. McCann, Rights at Work, 11. Lovell, This Is Not Civil Rights. Sonia Pressman Fuentes to Toni Carabillo, Vice President of The Fund for the Feminist Majority, California, May 14, 1994, 2.2 Women’s Rights Activities 1966–2009, n.a., Papers, ca. 1929–2009 (inclusive), 1955–2009 (bulk), Records of Sonia Pressman Fuentes, Schlesinger Library (SL), Cambridge, MA.; Pedriana and Stryker, “The Strength of a Weak Agency.”

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Finally, the victories NOW received at the agency level meant Title VII was a viable path for women. This path would pave the way for agency-level endorsements of women’s employment rights by the EEOC and for cases such as County of Washington, Oregon v. Gunther (1981).21 The legal claims of women inspired the formation of NOW and set its original agenda. Over time, the group grew into an organization with a transformative legacy, inspiring the subsequent movement development, additional alliances, new rights claims, policy reforms, and social struggles McCann discusses in his fourth stage of legal mobilization.22

Methodology I used an interpretive approach to understand how NOW formed and advanced through the four stages of legal mobilization.23 In taking an interpretive approach, I  was able to gain deeper understanding of the complex and dynamic phenomenon, which occurred when the first interpretations of Title VII were being made by individuals, the EEOC, interest groups, and other policy stakeholders. While some coding was done to search for trends, incomplete archival records and limited data collection by the EEOC during this time period rendered an interpretive method the most viable. The interpretive approach is also beneficial for the study of legal mobilization, because it views policy targets not as passive consumers of policy, but “as active constructors of meaning as they ‘read’ legislative language and agency objects and acts.”24 Therefore, the interpretive method allows me to show not only how individuals are savvy articulators of law, but how those legal visions of law can be mobilized by others to create a transformative legacy.25 In keeping with the use of discourse tracing by interpretivists, I measured influence by exploring how the discourses used by individuals and NOW were incorporated into the regulations and written texts of the EEOC or when the policy positions of these actors became adopted as policy by the EEOC and its employees.

21 22 23

24

25

County of Washington, Oregon v. Gunther, 452 U.S. 161 (1981). McCann, Rights at Work. For more information regarding the application of interpretive methods to the legal mobilization model see Michael McCann, “Causal versus Constitutive Explanations (or, On the Difficulty of Being so Positive),” Law and Social Inquiry 21 (1996): 457–482. Dvora Yanow, Conducting Interpretative Policy Analysis (Newbury Park, CA:  Sage Publications, 2000), 14. Lovell, “Justice Excused,” 285.

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Case and Data Selection Because the EEOC was established specifically for the purpose of enforcing Title VII, the amount of institutional norms and governing rules were minimized allowing insight into how such rules and norms were developed. The EEOC is also well known for its interpretation of laws, policy development, and enforcement guidance.26 This reputation emerged from the agency as it promoted itself as interpreting the law “in the spirit” it was intended, rather than just the letter of the law, to create broad interpretations of Title VII with regards to the race provision. The limited direct interaction with the courts during the agency’s first few years, due to its lack of litigation power, also helped bolster this claim. By focusing on these early years, I can show how official government interpretations of Title VII were created by the EEOC outside of the courts. My primary data consists of letters of correspondence between individuals, the EEOC, and NOW between July 2, 1965 and 1968. These letters are located in Record Group  403 at the National Archives in College Park, Maryland, and the records of NOW and Sonia Pressman Fuentes at Schlesinger Library in Cambridge, Massachusetts. This data was compared to the regulations and other written texts of the EEOC. A number of secondary sources were also used, including books written by key actors and interviews of agency employees. From these additional sources, I could confirm and cast suspicion on certain findings and look for strategic misrepresentation through triangulation.27 By the end of 1968, the EEOC received 36,839 charges of discrimination.28 To make the project feasible, I  chose a sample from the agency’s “General Correspondence” folders, because those are the files used in the only comparable study of agency correspondence.29 In Lovell’s study of the Civil Right Section of the Department of Justice, he found a significant number of rights claims were dismissed on the basis the agency lacked jurisdiction. Therefore, I  also chose to sample from the “Non-Jurisdiction” folders for comparison. I coded 1,590 documents, the entire contents of the “General Correspondence” and “Non-Jurisdiction” files.30 From these documents, I randomly sampled of 100 26

27

28

29 30

United States Commission on Civil Rights and Mary Frances Berry, Overcoming the Past, Focusing on the Future: an Assessment of the U.S. Equal Employment Opportunity Commission’s Enforcement Efforts (Washington, D.C.: The Commission, 2000), 9. David E. Broockman, “The ‘Problem of Preferences:’ Medicare and Business Support for the Welfare State,” Studies in American Political Development 26 (2012): 83–106. “Early Enforcement Efforts,” US Equal Employment Opportunity Commission, accessed January 17, 2012, www.eeoc.gov/eeoc/history/35th/1965–71/early_enforcement.html. Lovell, This Is Not Civil Rights. For the coding scheme see Woodward, “Making Rights Work.”

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Jennifer Woodward Table 3.1 Race and Sex-based Claims Investigated, Deferred, or Required More Information 1965–1968

Year

Race Race Number Percentage

Sex Sex Number Percentage

Other Other Number Percentage

1966

3,254

53

2,053

34

826

13

1967

4,799

56

2,003

24

1,710

20

1968

6,650

60

2,410

22

2,112

18

Total/Average

14,703

56

6,466

27

4,648

17

Note:  These are only charges recommended for investigation, deferred, and responded to with requests for additional information, since the EEOC only reported the basis of claims for these types of responses. This included 6,133 of the 8,854 charges for 1966, 8,512 of the 12,927 charges for 1967, and 11,172 of 15,058 for 1968. Percentages are of the total number of claims investigated, deferred, or responded to with a request for more information, not the total number of claims received. Since the EEOC failed to report color-based claims separately for all three years color-based charges are reported under race. Sources: Commission 1966, Commission 1967, Commission 1968a.

documents to analyze in-depth: fifty documents from the “General Correspondence” folders and fifty documents from the “Non-Jurisdiction” folders. The 100 sampled claims contained roughly 30 percent sex-based claims and 70 percent of claims on the basis of race and/or color. This is consistent with the records of the EEOC and percentages of total claims made on the basis of race/color and sex in these folders (Table 3.1). The first year of agency, race and sex-based claims totaled 86.6 percent of all claims filed.31

The EEOC Opens Its Doors (and Mailroom) EEOC Mandate Prior to the passage of the CRA of 1964, the history of local, state, and federal employment protections were convoluted, piecemeal, and generally did not extend protections to women.32 Only ten states and the District of Columbia prohibited discrimination on the basis of sex and complaints at the federal level were directed to the Women’s Bureau of the Department of Labor.33 During the legislative debates 31 32

33

“Early Enforcement Efforts;” “Shaping Employment Discrimination Law.” Anthony S. Chen, The Fifth Freedom: Jobs, Politics, and Civil Rights in the United States, 1941–1972 (Princeton, N.J.: Princeton University Press, 2009). Pauli Murray and Mary O. Eastwood, “Jane Crow and the Law: Sex Discrimination and Title VII,” George Washington Law Review 43 (1965): 233.

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over the CRA of 1964, it was argued “there may be some application of title VII in this area [of state protective legislation and women’s rights]” according to Senator Carlson (D-KS), but it was not really expected to be an issue, since there was “no available evidence to indicate that sex discrimination in employment present[ed] any problem.”34 This provided little guidance to the EEOC when it was presented with thousands of sex-based claims in its first years. The political and legal environment at the time also meant the EEOC generally believed the CRA of 1964 was simply federalizing laws against employment discrimination on the basis of race, color, religion, and national origin, which already existed in twenty-five states and for government contractors. Sex discrimination did not have the same legal or legislative history and, as a result, the “intent and reach of the [sex] amendment were shrouded in doubt.”35 The uncertainty surrounding the addition of “sex” as a means to defeat the bill further complicated the issue in an agency also divided over whether the provision should have been added.36 Agency Response While the NAACP and other organizations assisted in the facilitation of race-based claims, the majority of the claims made under Title VII in the agency’s first three years were brought by individual claimants.37 Once claims were reviewed by the EEOC, claimants were likely to receive one of several responses: (1) an investigation into the claim, (2)  a commissioner would bring charges against the accused offender, (3) the claim would be deferred to a state commission, (4) the commissioner charges would be deferred, (5) further information regarding the claim would be requested, or (6) the claim would be rejected and referred to the Civil Service

34

35 36

37

US Equal Employment Opportunity Commission, Legislative History of Titles VII and XI of Civil Rights Act of 1964, (Washington, D.C.: United States Government Printing Office, 1968), 3117. US Equal Employment Opportunity Commission, First Annual Report (1966), 5. There is disagreement among scholars regarding whether “sex” was added to H.R. 7152 to defeat the bill or as a genuine attempt to provide standardized federal protections to women, but some argue that Representative Howard Smith was sincere when he proposed the addition and note prior Congressional attempts to create employment protections on the basis of sex. See Jo Freeman, Women: A Feminist Perspective, 5th ed. (Mountain View, Calif.: Mayfield Pub. Co., 1995); Jo Freeman, We Will Be Heard: Women’s Struggles for Political Power in the United States, (Lanham, Md.: Rowman & Littlefield Publishers, 2008): 185; Rachel Osterman, “Origins of a Myth: Why Courts, Scholars, and the Public Think Title VII’s Ban on Sex Discrimination was an Accident,” Yale Journal of Law and Feminism 20 (2009): 409–440; Cynthia Ellen Harrison, On Account of Sex: the Politics of Women’s Issues, 1945–1968 (Berkeley: University of California Press, 1988); Robert Samuel Smith, Race, Labor and Civil Rights: Griggs versus Duke Power and the Struggle for Equal Employment Opportunity (Baton Rouge: Louisiana State University Press, 2008). Pedriana and Stryker, “The Strength of a Weak Agency.”

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Jennifer Woodward Table 3.2 Number of Claims Recommended for Investigation 1965–1966

1966–1967

Race and Color

2,067

3,325

4,017

Sex

1,624

1,497

1,663

82

262

376

3,773

5,084

6,056

Other Total

1967–1968

Sources: Commission 1966, 1967, 1968a.

Commission or other appropriate federal agency.38 While the NAACP, claimants, and eventually NOW argued the agency was not responsive to claimants during its early years, recommendations for investigation were the most common response. A total of 14,913 out of 25,817 (58 percent) claims in the agency’s first three years were recommended for investigation.39 These recommendations for investigation were primarily for race-based claims (see Table 3.2), demonstrating one way the agency placed race-based claims and policies at the top of its agenda. Between 1965 and 1968, 7,881 claims were dismissed because the alleged act of discrimination occurred prior to Title VII enactment, the claim was filed after the statute of limitation expired, or was outside the jurisdiction of the agency – making these the second most common response claimants received.40 According to the EEOC, claims deferred to a state or local fair employment practice commission constituted 4,271 of these responses.41 Meanwhile, requests for more information, 6,633 in total, were the third most common response the claimants received.42 The documents I coded contained 126 requests for more information from individuals and employers. The letters rarely specified what additional information was needed, 38

39

40

41

42

George L. Holland, Director of Compliance to Donald L. Hollowell, Regional Director of the Atlanta Field Office, May 12, 1966, General Correspondence, Compliance Division 1965–1966, Records of the EEOC, RG 403, NAACP. For an explanation of the claims process see US Equal Employment Opportunity Commission, Annual Report and Wolkinson, Blacks, Unions, and the EEOC. US Equal Employment Opportunity Commission, First Annual Report, 58; US Equal Employment Opportunity Commission, Second Annual Report (1967), 52; US Equal Employment Opportunity Commission, Third Annual Report (1968), 33. US Equal Employment Opportunity Commission, First Annual Report, 58; US Equal Employment Opportunity Commission, Second Annual Report, 68; US Equal Employment Opportunity Commission, Third Annual Report, 56–57. US Equal Employment Opportunity Commission, First Annual Report, 58; US Equal Employment Opportunity Commission, Second Annual Report, 52; US Equal Employment Opportunity Commission, Third Annual Report, 33. US Equal Employment Opportunity Commission, First Annual Report, 62; US Equal Employment Opportunity Commission, Second Annual Report, 52; US Equal Employment Opportunity Commission, Third Annual Report, 33.

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but often they came with a charge form (55 in my sample), a postage paid return envelope, and instructions for completing the form.

Legal Mobilization Theory at the Agency Level Among the unorganized individuals submitting claims to the EEOC were women with sex-based claims of employment discrimination. They often found their interpretations of rights ignored or juxtaposed against an agency staffed with individuals who believed women were incapable of meeting the requirements of many jobs and/or belonged in the home. This viewpoint was not unique to employees of the EEOC. Even the majority of college-educated women in the United States believed in the male breadwinner, female helpmate mentality in 1964.43 Yet women were making sex-based claims of employment discrimination, which placed the sex provision on the agency’s agenda, much like Zemans argues individuals set court agendas.44 Also like claims individuals submit to the courts, interest groups were needed to help claimants overcome the obstacles of claiming their rights.45 Formal mobilization in the form of interest group creation via NOW ensured that these individual legal interpretations of the sex provision of Title VII were transformed into an interest group agenda as well. This is why McCann’s theory of legal mobilization serves as an ideal starting point to explain how and why NOW formed as a result of the (in)actions of the EEOC. Movement Building: Individual Interpretations Individuals wrote to the EEOC “[a]s a last resort, and in great desperation… to complain about the lack of equality in employment opportunities for women.”46 Like those McCann interviewed, the women writing into the EEOC and the relatively few men and women working inside the agency to advance women’s rights were focused on both the immediate benefits to the claimants and the long-term potential of their interpretations of Title VII to produce changes in law and society.47 Claims submitted to the EEOC on the basis of sex involved discrimination in hiring, firing, 43

44 45

46

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Karen Oppenheim Mason, John L. Czajka, and Sara Arber, “Change in U.S. Women’s Sex-Role Attitudes, 1964–1974,” American Sociological Review 41 (1976): 573–596. Zemans, “Legal Mobilization.” Zemans, “Legal Mobilization.” See also William L. F. Felstiner, Richard L. Abel, and Austin Sarat, “The Emergence and Transformation of Disputes: Naming, Blaming, Claiming,” Law & Society Review 15 (1980–1981): 631–654; Marc Galanter, “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change,” Law & Society Review 9 (1974): 95–159. Case number 5-10-1572. This and all other quotes are in the writer’s own words, including spelling, grammar, and all other errors. McCann, Rights at Work, 275.

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promotions, and other terms and conditions of employment. The three most common reasons for sex-based discrimination in the first year were:  (1) differences in benefits (726 claims), (2)  discrimination in layoff, recall, and seniority (588), and (3) state labor laws for women (291).48 While many were similar to the claims made on the basis of race, there were some types of claims unique to women. For example, certain positions (including flight attendants) required women to be unmarried and within certain age and/or weight limits. EEOC interpretations regarding state-protective legislation and flight attendants were especially likely to challenge gender roles and reflect NOW influence, because the group’s early efforts focused on these laws. In addition, state-protective labor legislation was a common source of complaints during these early years. The plight of flight attendants involved a combination of typical and atypical types of the sex-based claims usually received by the EEOC. Their claims regarded benefits (the most common type of sex-based claim) and marriage and age limits (two of the most uncommon claims).49 Through the claims of individuals, like Octavia Stewart Wryrick, employer policies regarding women in the workplace become real quandaries for interpreting the boundaries of Title VII. In Wryrick’s claim, she wrote she was denied benefits and fired once it was discovered she married.50 It was a common practice to require flight attendants to leave or work in positions located in the airport upon marriage. In attempting to determine how the EEOC should respond to claims involving issues of age, marriage, and weight restrictions for flight attendants, Commissioner Aileen C. Hernandez wrote two versions of how the EEOC might decide Wryrick’s claim dependent upon whether gender was a bona fide occupational qualification for the job.51 This demonstrates the opportunity these claims presented for the EEOC to proactively interpret the sex provision of Title VII broadly. The marriage requirement was ruled to be discriminatory, because it was not applied to male employees and in 1966 the EEOC issued guidelines forbidding women to be excluded from employment because they were married or had small children. However, the question of whether gender was a bona fide occupational qualification took more time for the EEOC to decide. Consistently broad interpretations of Title VII’s sex provision would have challenged views regarding the place of women within society, which were routinely seen in the claims made by women. Not only were men considered the primary 48 49

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US Equal Employment Opportunity Commission, First Annual Report, 64. Ibid. There were only 45 claims involving individuals that were fired after marriage and 31 due to age limits of the 2,432 sex-based allegations in the agency’s first year. Stephen N. Shulman, November 9, 1966, Box 7 Commission Meetings, Records of Stephen Shulman, 1966–1968, Records of the EEOC, RG 403, NACP. Aileen C.  Hernandez, EEOC Commissioner, October 21, 1966, Box 7 Commission Meetings, Records of Stephen Shulman, 1966–1968, Records of the EEOC, RG 403, NACP.

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breadwinners, women were often considered incapable of the same mental or physical work men could do. For example, one claimant relayed how her employer denied her a promotion, because “women can’t bear up under the pressures of the publication business,” and not only lack the education to be professionals, but would not be able to “understand mechanical things” and would not be “physically strong enough to work in a man’s field.”52 Views of women as too emotional, physically weak, and unable to perform certain tasks were also reflected in state-protective legislation. Protective legislation was passed by states to protect women from employment conditions potentially harmful to their health, with their reproductive health and roles as mothers in mind. The laws varied by state, but protective legislation usually involved restrictions on the number of hours and/or days a week a woman could work and/or how much weight women were allowed to lift on the job. Initially, the EEOC supported state-protective legislation, because women’s rights groups and organized labor had advocated for these laws at the end of the nineteenth and beginning of the twentieth century.53 By the time the EEOC opened its doors, these laws were showing signs of policy failure through the claims received by the agency. In addition to being the third most common type of sex-based claim received by the EEOC, claims involving state protective legislation demonstrate how the mobilization of law by individuals, and eventually NOW, shaped the interpretations of Title VII law. Claimants consistently presented a view of stateprotective legislation violating their employment rights under Title VII. Four of the eleven state-protective claims drawn from my sample of 100 directly stated the CRA of 1964 created equal employment opportunity and overturned these state laws creating unequal employment conditions for men and women. Women were arguing state-protective legislation was not protecting them, but preventing them from working the amount of hours they wanted, and often needed, to support their families. One claimant wrote:  “I think the Women’s Labor Law is in drastic need of changes. For example: If a female is able to and willing to work over 48 hours a week, why should she be denied the right because she is not of the male sex?”54 Another claim (the only one I found from a man making a sex-based claim) considered the rest breaks provided to women and minors under state-protective legislation “in violation of Title VII, Section 703(a), and (1) of Public Law 88-352, on the basis of discrimination because of sex.”55 If 52 53 54

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Case number 5-10-1572. Freeman, Women. Case number 5-11-2853, Box 1 Compliance General Correspondence; Compliance Division 1965–1966, Records of the EEOC, RG 403, NACP. Case number 5-11-2675A, Box 1 Compliance General Correspondence; Compliance Division 1965–1966, Records of the EEOC, RG 403, NACP.

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the EEOC ruled against him, the male claimant argued, it would “contempt the conscience and will of the People of the United States as exercised through the highest legislative bodies in the land, The Senate and House of Representatives.”56 In reality, Congress spent little time even referencing protective legislation in its consideration of the sex provision.57 In the first year of the EEOC, before the founding of NOW, claims involving protective legislation were sent to the EEOC Office of General Counsel for interpretation. This caused delays in Title VII rights for women as their claims went without investigation or efforts at conciliation – the agency’s only powers at the time. On the surface, federalism issues invoked by having Title VII overturn state laws may be the primary reason women with claims involving state-protective legislation were told their claims were being sent to the EEOC legal department. As letter from the EEOC to claimants stated, “…the reason for the delay in this case is that the question you have raised is complicated because it involves the existing laws of your state.”58 However, the relative ease in which the EEOC ruled Title VII superseded state laws regulating the collection of data needed for its affirmative action programs and general delays for sex-based claims, presents a pattern in which sex-based interpretations were considered low or no priority by the agency.59 Movement Building: Delays and Denials Lead to the Formation of NOW The first stage of legal mobilization requires more than the rights talk seen in a premovement stage.60 Mobilization of the law in McCann’s theory also leads to constituency building, and in this case, the formation of NOW. The divides between the first commissioners of the EEOC (Richard Graham, Aileen C.  Hernandez, Luther D.  Holcomb, and Samuel C.  Jackson), frequent turnover among highranking officials at the EEOC, and lackluster leadership by the agency’s first chair meant constituency building was necessary to ensure action on the sex provision.61 Franklin D. Roosevelt, Jr., the first EEOC Chairman, when asked what he thought about sex discrimination, answered at one point:  “I’m in favor of it.” At another point he stated he did not consider the sex provision of Title VII to be “frightening 56 57

58

59 60 61

Ibid. US Equal Employment Opportunity Commission, Legislative History of Titles VII and XI of Civil Rights Act of 1964. George L. Holland to Lillian Hergert, November 2, 1965, Box 1 Compliance General Correspondence, Compliance Division 1965–1966, Records of the EEOC, RG 403, NACP. 32 Fed. Reg. 2854 1967. Lovell, “Justice Excused”; Lovell, This Is Not Civil Rights. Pedriana and Stryker, “The Strength of a Weak Agency.”

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or humorous.”62 Roosevelt was more interested in being a politician appeasing the individual or interest group he was responding to at the moment than he was in formulating EEOC policy or influencing interpretations of Title VII law. Holcomb, the first Vice-Chairman of the EEOC, was more influential in shaping Title VII law. He was named the Acting Chairman by President Johnson after Roosevelt’s resignation and before the appointment of Stephen N.  Shulman as Chairman in 1966.63 Holcomb had been an advocate for the removal of “sex” from Title VII during the legislative debates over the CRA of 1964 and his neglect in enforcing the sex provision indicates he maintained his position while he was an EEOC commissioner from 1965 to 1974.64 At the very least, Holcomb’s experience working with civil rights groups caused him to view issues of sex-based discrimination as a lower priority for the agency.65 In 2000, Holcomb admitted “…in the beginning, our number one objective was racial discrimination in the workforce. As a result, women were falling into second place…”66 Despite the focus on race-based claims, there were strong allies for women in the EEOC during the agency’s first years. Hernandez, the first female EEOC commissioner, and Sonia Pressman Fuentes, the first female attorney for the Office of General Counsel, led efforts for equal enforcement of the sex provision from within an agency often hostile to the sex provision and its advocates.67 For example, the first General Counsel Charles Duncan referred to Fuentes as a “sex maniac” for her persistence in raising issues regarding claims of sex-based discrimination and Richard Berg, Acting General Counsel after Duncan left, did not understand how many of the issues women complained of were problematic and after NOW was formed he expressed little interest in working with the organization.68 Berg considered the sex provision of the CRA of 1964 to be an “orphan” provision.69

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63 64 65

66 67

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Sylvia Danovitch, “Humanizing Institutional History: Oral History at the EEOC,” Prologue Winter (1995): 340; Patricia G. Zelman, Women, Work, and National Policy: The Kennedy-Johnson Years (Ann Arbor, MI: UMI Research Press, 1992), 94. Harrison, On Account of Sex, 196. Sonia Pressman Fuentes to Toni Carabillo. Dana Whitaker, “Recollections of Luther Holcomb Vice Chairman of the Equal Employment Opportunity Commission from 1964–1974” (accessed August 10, 2012), www.eeoc.gov/eeoc/history/ 35th/voices/oral_history-luther_holcomb-dana_whitaker.wpd.html. Ibid. The Fawcett Society, “Sonia Pressman Fuentes and the Foundation of the National Organization for Women,” StopGap (Spring 2009). Ibid; Richard K.  Berg to Dr.  Murray, March 16, 1967, Box 7 (NOW) National Organization for Women, Records of Chairman Stephen Shulman, Records of the EEOC, RG 403, NACP; Danovitch, “Humanizing Institutional History,” 341. Sonia Pressman Fuentes, Eat First-You Don’t Know What They’ll Give You:  The Adventures of an Immigrant Family and Their Feminist Daughter (Philadelphia, PA: Xlibris, 1999), 132–133.

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Meanwhile, advertisements listing jobs on the basis of race were quickly ruled a violation of Title VII as job advertisements segregated by sex were studied by a committee comprised mainly of business interests, which ruled Title VII did not extend protections on the basis of sex.70 The committee was appointed by Roosevelt to develop an interpretation of Title VII, which would “respect the rights and interests of all those most affected: advertiser, publisher and those seeking employment.”71 As result, newspapers were only required to print a disclaimer stating the sex-segregated ads were organized into male and female columns because some jobs were of more interest to one sex or the other.72 At the same time, women were writing to the EEOC with interpretations of Title VII as invalidating state-protective legislation, saying “The unions use it [protective legislation], the Co. uses it & the state uses it as a ‘reason’ for not hiring and not promoting women.”73 Employers also complained to the EEOC because they could not hire women they wanted. If they did hire women, according to the claims, employers would expect them “work as many hours as necessary to get the work out, and then [have them] to fake the overtime hours on her time card over a period of weeks (so that the State will not be aware of the fact that the law has been broken)” or would not pay women for the time they worked outside of the maximum hours.74 Despite these claims, the EEOC expressed no intention of overturning stateprotective legislation. In August 1965, Berg stated the Commission was “not going to take the position that all state protective legislation for women goes out the window.”75 The agency did make some headway regarding state-protective legislation, in December 1965, when it ruled the minimum wage, overtime pay, rest periods, 70 71

72 73

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31 Fed. Reg. 6414, 1966. Hamilton Zehrbach to Roosevelt, August 20, 1965, Box 1 Compliance Citizens (opinions), Compliance Division 1965–1966, Records of the EEOC, RG 403, NACP; Franklin D. Roosevelt, Jr. to Hamilton Zehrbach, September 3, 1965, Box 1 Compliance Citizens (opinions), Compliance Division 1965– 1966, Records of the EEOC, RG 403, NACP; Associated Press, “Committee to Ponder on Male and Female,” Arizona Republic, 1965. Harrison, On Account of Sex, 188. Case number 5-12-3181, Box 1 Compliance General Correspondence, Compliance Division 1965– 1966, Records of the EEOC, RG 403, NACP; Case number 5-10-1572. Case number 5-10-1572; Case number 5-11-3050, Box 1 Compliance General Correspondence, Compliance Division 1965–1966, Records of the EEOC, RG 403, NACP. The most common type of protective legislation claims submitted to the EEOC involved restrictions on the number of hours women could work; see US Equal Employment Opportunity Commission, August 2, 1966, InterOffice Memo, Compliance Division 1968, Records of the EEOC, RG 403, NACP. In the first year, 262 of the 291 claims involving state protective legislation regarded overtime restrictions with the other claims made regarding weight lifting restrictions ranging from 15 to 35 pounds (16), rest periods (2), and general complaints about the laws (11); see US Equal Employment Opportunity Commission, First Annual Report, 64. As quoted in Cary Franklin, “Inventing the ‘Traditional Concept’ of Sex Discrimination,” Harvard Law Review 125 (2012): 1339.

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and need for physical facilities – all the benefits these laws provided women – would now be provided to men. In addition, women could not be denied a job because of these benefits. Nevertheless, the agency declined to rule on whether these laws were superseded by state-protective legislation and initially it did not provide claimants with state-protective legislation claims the right to sue. Fuentes believed there were a few reasons the agency failed to equally implement Title VII. First, the EEOC staff was primarily composed of individuals who came to the agency to fight discrimination on the basis of race, not sex. In their view, sex discrimination issues were diverting agency’s attention and resources away from their cause. Second, issues involving sex raised more complex legal issues:  pregnant workers, physical limitations, equal benefits, and state-protective laws. Finally, Fuentes felt sex-based claims were disadvantaged by the void of a social movement for women to give the agency guidance in how to interpret the law, like the NAACPguided interpretations on race.76 While Fuentes could not control the motivations of her coworkers or the complexity of the legal questions emerging after the passage of Title VII, she did help to create an interest group to mobilize for changes in women’s rights. By 1966, disappointment and frustration with the EEOC enforcement of sex provision was growing. After Betty Friedan (author of The Feminist Mystique 1963) visited the EEOC to conduct research for a potential book, Fuentes and Commissioners Graham and Hernandez urged Friedan to create an “NAACP for women.”77 At first Friedan declined, preferring the state commissions on the status of women take the lead in forming a national organization to fight for women’s rights.78 While attending the Third National Conference of Commissions on the Status of Women in June 1966, Friedan and a group of fifteen women she invited to discuss the issue decided that a national organization was not necessary, but they hoped resolutions would be passed at the meeting to persuade the EEOC to enforce the sex provision.79 When the proposed actions were rejected by the organizers of the conference, a group of attendees decided to take action. Friedan and the other women, while sitting at one of the conference meetings, planned the first meeting of a group they named the National Organization for Women (NOW).80

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78 79

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The Fawcett Society, “Sonia Pressman Fuentes and the Foundation of the National Organization for Women.” Betty Friedan, The Feminine Mystique (New York: W. W. Norton, 1963); Sonia Pressman Fuentes to Toni Carabillo; Harrison, On Account of Sex; National Organization for Women, “The Founding of NOW” (last modified 2011), www.now.org/history/the_founding.html. Harrison, On Account of Sex, 193. Ibid, 193–195; The Fawcett Society, “Sonia Pressman Fuentes and the Foundation of the National Organization for Women.” Ibid.

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The founders of NOW were either members of the President’s Commission on the Status of Women or friends of the members.81 The influence of EEOC insiders was instantly obvious as well. At the first official conference for NOW, Friedan was elected president based upon the recommendation of Fuentes; EEOC Commissioners Hernandez and Graham were elected the first vice-presidents of the organization.82 At the conference, it was decided NOW would be a temporary organization “to take action to bring women into full participation in the mainstream of American society now, assuming all the privileges and responsibilities thereof in truly equal partnership with men.”83 Action was at the forefront of the organizers’ minds. Until then, the Commissions on the Status of Women were mainly symbolic and the EEOC was failing to act on sex-based claims. The time had come “to move beyond the abstract argument, discussion and symposia over the status and special nature of women in recent years; the time has come to confront, with concrete action, the conditions that now prevent women from enjoying the equality of opportunity and freedom of choice which is their right…”84 The time for advancing into the second stage of legal mobilization had arrived. The Struggle to Compel Formal Policy Changes After organizing to advocate for stronger enforcement of the sex provision of Title VII, NOW entered the second stage of legal mobilization. The organization struggled to compel formal changes in Title VII interpretations by the EEOC to make them more in line with the agency’s rulings on the race provision of the law. At the official organizing conference of NOW, in October 1966, a Statement of Purpose was adopted, which focused on the changing role of women in the workplace and disparity in pay and position women had at the time. Directly naming Title VII in the statement, NOW chided the EEOC, stating “the Commission has not made clear its intention to enforce the law with the same seriousness on behalf of women as other victims of discrimination.”85 The organization approved immediate action on Title VII, including a legal committee to work on the issues faced by flight attendants and to challenge protective labor legislation.86 81 82 83 84

85 86

Harrison, On Account of Sex, 198. Ibid, 196. National Organization for Women, “The Founding of NOW.” National Organization for Women, “The National Organization for Women’s 1966 Statement of Purpose,” 1966. Ibid. National Organization for Women, “The Founding of NOW.”

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A month later, on November 11, 1966, NOW demanded the EEOC revise its interpretations of Title VII to include a ban on help-wanted advertisements segregated by sex. In her roles as EEOC commissioner from 1966 to 1967 and NOW vice-president beginning in October 1966, Hernandez became a leader in pressuring newspapers to stop their segregation of help-wanted ads based on sex and to urge President Johnson to reconsider the EEOC help-wanted advertisement ruling.87 In another early action, NOW urged the EEOC to send a claim against North American Aviation by Velma L. Mengelkoch regarding state-protective legislation to the Attorney General.88 The agency declined. While NOW failed in pressuring the EEOC to send the case to the Attorney General, in August 1966, Mengelkoch and her co-claimants were the first individuals with claims involving state-protective legislation granted the right to sue. Yet, the infancy of NOW was still felt by these claimants as interest group guidance was also needed to pursue the lawsuit. This was guidance NOW was not yet able to provide. Before Mengelkoch could pursue judicial action against a law she felt provided “… an Almighty power over the female sex…,” she had to ask the EEOC to “advise [her and her co-claimants] as quickly as possible how to go about filing this case before the Supreme Court of the United States here in Los Angles?”89 In pursuing the case Mengelkoch v.  North American Aviation, Mengelkoch quickly depleted her finances after three years of litigation and decided not to proceed with the case after a rehearing was denied.90 By then, NOW had grown during the struggle over how to interpret the sex provision of Title VII and had even lent some financial support to the lawsuit. However, in August 1969, an EEOC ruling finally determined state-protective legislation violated Title VII when it treated

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“Celebrating Our Presidents,” National Organization for Women (accessed March 1, 2012), www .now.org/history/past_presidents.html; Harrison, On Account of Sex, 195. In September of 1966, Commissioner Hernandez worked inside the EEOC to file commissioner charges against companies segregating help-wanted advertisements by sex, see Kenneth F. Holbert to Executive Director and Acting Director of Compliance, September 23, 1966, Inter-Office Memos, Compliance Division 1968, Records of the EEOC, RG 403, NACP. After she left the EEOC in 1967, Hernandez became the second president of NOW in March 1970 and established a Federal Compliance Committee within the organization to advocate for the enforcement of federal equal employment opportunity laws. National Organization for Women to President of the United States, November 11, 1966, Box 7 (NOW) National Organization for Women, Records of Chairman Stephen Shulman, Records of the EEOC, RG 403, NACP. Velma L. Mengelkoch to Holbert, September 18, 1966, Inter-Office Memos, Compliance Division 1968, Records of the EEOC, RG 403, NACP. Dan R. Anders to General Counsel and Interim Acting Director of Compliance, September 22, 1966, Inter-Office Memos, Compliance Division 1968, Records of the EEOC, RG 403, NACP; Aileen C. Hernandez, “E.E.O.C. and the Women’s Movement 1965–1975” (paper presented at the symposium on the tenth anniversary of the United States Equal Employment Opportunity Commission, Newark, NJ, 1975): 18.

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men and women differently.91 It made this ruling under increasing pressure from a growing NOW. While Mengelkoch’s case worked its way through the judicial system to little avail, delays continued for flight attendants submitting claims regarding their benefits and unique job qualifications. Hearings on the bona fide occupational qualification issue for flight attendants were scheduled and then rescheduled.92 During this period, NOW also began to pressure the EEOC from the outside regarding this issue. Eventually, in February 1968, the Commission ruled sex was not a bona fide occupational qualification for flight attendants in a 3-to-1 vote. Yet views about the proper role of women remained in segments of the EEOC. Commissioner Holcomb inserted into the regulations a statement noting he considered being a female a requirement for working as a flight attendant.93 Despite the views of Holcomb and others in the EEOC during these early years, the story of how the EEOC began acting upon the sex provision of Title VII demonstrates how individuals acting alone placed the sex provision of Title VII on the agenda of the EEOC. It also demonstrates how the individual political act of claiming rights can result in mobilization and interest group formation when they are delayed and/or denied by a government agency.94 As NOW formed to push for the enforcement of the sex provision of the law, it allowed the visions of Title VII these claimants had to become official legal interpretations by the agency. The Struggle for Control over Policy Development and Implementation Despite gaining decisions favorable to the group’s interpretations, NOW failed to have the same place at the policy table as the NAACP. Furthermore, two of the sex provision’s biggest allies, Commissioners Graham and Hernandez, were forced to advocate for the sex provision from the outside. Graham was denied a second term on the Commission and Hernandez was forced to resign under complaints her role as NOW vice-president created a conflict of interest. Jackson, a former director of the NAACP, remained. NOW hardly had the resources to operate, let alone sponsor cases in its first years. Frustrated with the lack of outsider support and still working within the EEOC Office of General Counsel, Fuentes wrote a confidential memo to women’s rights activists remarking how NOW and other women’s groups had “zero” resources for a lawyer or to file an amicus curiae brief in cases of sex discrimination. The

91 92 93 94

33 Fed. Reg. 3344 1968. 32 Fed. Reg. 11050 1967. 33 Fed. Reg. 3361 1968. Lovell, This Is Not Civil Rights.

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organization had spent $1,266 (of its $6,939 total income) on legal expenses between December 15, 1967 and November 30, 1968, including $875 on the Mengelkoch case.95 In the memo, Fuentes pleaded for a full-time lobbyist in Washington, DC to advocate for women’s rights in the same way the Clarence Mitchell “the 101st Senator” advocated for blacks via the NAACP.96 Meanwhile, EEOC employees supportive of NOW were treated hostilely within the agency and those working with NOW on the outside failed to gain the level of respect the NAACP received from the agency. For example, on December 19, 1966, when NOW petitioned the EEOC to change its policy on help wanted advertisements, or to at least hold a public hearing on the issue, Berg attached a note to a letter from NOW regarding the petition telling EEOC Consultant and NOW Co-Founder Pauli Murray, “Why don’t you answer this? They’re your friends.”97 To which Murray replied, “This letter calls for Commission action. Please let me know what actions the Commission has taken, then I will be glad to draft a reply.”98 The bitter undertone of this correspondence is repeated in other documents and demonstrates how unreceptive the agency could be toward NOW and advocates of the sex provision. A few weeks after the letter from NOW, then EEOC Chairman Shulman responded to the organization, apologizing for the delay and inviting the organization to a hearing on this and other issues involving sex-based discrimination and Title VII.99 NOW did receive a response and eventually the agency changed its position to make sex-segregated help-wanted ads a violation of Title VII unless sex was a bona fide occupational qualification for the job.100 A change in Title VII interpretation was attributed to NOW.101 However, the delays for NOW were longer than for the NAACP and archival documents indicate a general lack of interest in responding to the demands of NOW. Responses from the EEOC to NOW also reflect the lack of recognition by official channels in comparison to the well-established NAACP. A month before 95

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97 98

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100 101

Aileen C. Hernandez to Inka O’Hanrahan, Secretary-Treasurer of NOW, 1968, 1.2 NOW 1968, 1973, Joan Hull, Papers of NOW Officers, 1967–1977, SL, Cambridge, MA. Fuentes, Sonia Pressman to Dolores Alexander, Jean Faust, Wilma Heide, Betty Boyer, and Aileen Hernandez, June 30, 1969, 2.2 Women’s Rights Activities 1966–2009, n.a., Papers, ca. 1929–2009 (inclusive), 1955–2009 (bulk), Records of Sonia Pressman Fuentes, SL, Cambridge, MA. Richard K. Berg to Dr. Murray, emphasis in original. Murray, PM [Pauli Murray], March 16, 1967, Box 7 (NOW) National Organization for Women, Records of Chairman Stephen Shulman, Records of the EEOC, RG 403, NACP. Stephen N. Shulman to Kathryn F. Clarenbach, Betty Friedan, and Caroline Davis, April 6, 1967, Box 7 (NOW) National Organization for Women, Records of Chairman Stephen Shulman, Records of the EEOC, RG 403, NACP. 32 Fed. Reg. 5999 1967; 33 Fed. Reg. 11539 1968; 33 Fed. Reg. 18259 1968. Nicholas Pedriana, “Help Wanted NOW: Legal Resources, the Women’s Movement, and the Battle Over Sex Segregated Job Advertisements,” Social Problems 51 (2004): 182–201.

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the petition was sent to the EEOC, Chairman Shulman told the White House that NOW was too new and should only be granted an audience with the president if it had a significant gain in membership and was able to achieve “a status worthy of Presidential attention.”102 Although it aspired to be an “NAACP for Women,” in its first few years NOW was not able to facilitate claims and translate the law. During the first years of the EEOC, NOW was developing its own institutional policies and norms alongside the EEOC. As an organization, it lacked the reputation, finances, and staff to translate the law to individuals seeking advice, like the NAACP did via its Title VII Summer Education Campaign and through its journal The Crisis.103 It also lacked the place at the policy table the NAACP earned through its advocacy of the CRA of 1964, submission of a mass number of claims, and through the capacity it added to the agency. What is remarkable is how the newly formed NOW was able to utilize the interpretations of law from individual claimants and form a coalition of activists inside and outside the state to influence the meaning of Title VII. While the story of NOW does not coincide with the traditional understanding of interest groups and movements working as entities outside of the state in order to influence the government, it does provide valuable insight into how movements can form alongside and from within the state and why.104 Before the EEOC gained litigation power, NOW formed in response to inter-agency divides over the enforcement of the sex provision of Title VII and lack of interest by government organizations (commissions on the status of women) or preexisting interest groups (such as the National Women’s Party) to hold the EEOC accountable for its decisions regarding sex-based discrimination. Finally, the story tells us how a struggle to compel legal changes may advance into a larger struggle over the control of policy development and implementation. NOW sought more than just reversals in the ruling the EEOC made; it also wanted an opportunity to help formulate policies regarding Title VII. As a growing organization, it aspired to help the EEOC develop policies related to the sex provision, just like the NAACP was for the race provision.105 By 1968, NOW had entered the third stage of legal mobilization and was actively seeking a larger role in Title VII development, both inside and outside of the EEOC.

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Stephen N. Shulman to W. Marvin Watson, November 23, 1966, Box 7 (NOW) National Organization for Women, Records of Chairman Stephen Shulman, Records of the EEOC, RG 403, NACP. Pedriana and Stryker, “The Strength of a Weak Agency.” Lee Ann Banaszak, The Women’s Movement Inside and Outside the State (New  York:  Cambridge University Press, 2010). Chen, The Fifth Freedom; Pedriana and Stryker, “The Strength of a Weak Agency.”

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A Transformative Legacy Between 1968 and 1969, NOW membership grew from 1,313 to 3,033 members.106 It was still nowhere near the force of the NAACP in terms of membership or a place at the table, but the group continued to grow and inspired the creation of other women’s rights groups along the way. Today NOW has over half a million members and an expansive agenda for advancing women’s rights.107 McCann found coalitions constructed around the comparable worth campaign laid the basis for the coalition to act on other issues.108 Likewise, the coalition of government workers and other members of NOW expanded their agenda to include other rights issues, such as reproductive rights, violence against women, lesbian, gay, bisexual, transgender, and queer (LGBTQ) issues, and even racial justice. Title VII law was changed by the visions of law espoused by claimants and reinforced by NOW, as the EEOC included them in their regulations. While the EEOC’s initial delay and denial of rights may have been a temporary setback for women’s rights, the formation of NOW in counteraction to those decisions resulted in a long-term transformative legacy, which continues to shape law and society even today. Due to individual claims and interpretations of Title VII, which served as a catalyst for the formation of NOW and added the sex provision to the agenda of the agency, it has been argued the EEOC has “had greater impact in the field of women” than for other groups because of the sex provision the agency found “mysterious and difficult to understand and control.”109

Conclusion: Agency Action and Legal Mobilization In the wake of rising expectations following the passage of the CRA of 1964, women interpreted the law’s Title VII rights via claims submitted to the EEOC. As NOW formed to press for broader interpretations of the sex provision, the claims and the responses they received served as the catalyst for constituency activation and the formation of alliances. As a result, the first years of the EEOC shows how premovements stages of legal interpretations can advance into legal mobilization.110 106 107

108 109

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Rosenberg, The Hollow Hope, 243. “How Many Members Does NOW Currently Have?,” National Organization for Women (accessed February 13, 2015), http://now.org/faq/how-many-members-does-now-currently-have/. McCann, Rights at Work, 264. “Legends in the Law: Charles T. Duncan,” District of Columbia Bar (accessed August 8, 2012), www .dcbar.org/for_lawyers/resources/legends_in_the_law/duncan.cfm; Commissioner Samuel C. Jackson quoted in Franklin, “Inventing the ‘Traditional Concept,’ of Sex Discrimination,” 1338. Lovell, This Is Not Civil Rights; McCann, Rights at Work.

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The story of sex-based claims and Title VII demonstrates how individuals acting on their own can create a coherent perception of a law that shaped the meaning of Title VII. Claimants clearly saw Title VII as creating equal employment opportunity on the basis of sex. This meant employment laws creating unequal employment conditions, such as protective labor legislation, were in violation of the newly created right. By claiming their legal rights, these individuals were able to influence in the directions and interpretations of the law by providing feedback on failing policies, evidence for the need for rights protections, and visions of more expansive understandings of the law’s potential. Nevertheless, the EEOC was slow to act. When it did, it initially treated the sex provision as not only a lower priority, but also explicitly interpreted it differently regarding advertisements for jobs. After this ruling, and the routine delay and denial of individual claims combined with a workplace hostile to advocates of the sex provision, NOW was formed. With the formation of NOW, the agenda set by the individual claims were finally provided the expertise and interest group support needed for broader interpretations of Title VII to gain official recognition. As NOW formed alongside the EEOC, it made a difference in mobilizing the law to support the visions of claimants. Through its struggles to create formal changes in EEOC rulings regarding Title VII, and in its push for control over the more general development and implementation of the sex provision, NOW was not only able to grow as an organization, it was also able to ensure reversals in agency rulings regarding the sex provision. This demonstrates how, even with limited capacity, interest groups such as NOW can influence the legal interpretations and future directions of a law as it competes with other interests over the development of rights. In doing so, NOW shows how the second and third stages of mobilization can occur at the agency level. Claimants may have set the initial agenda of the EEOC and NOW, but the need for a women’s counterpart to the NAACP emerged because the EEOC had interpreted the sex provision of Title VII differently. While NOW was originally organized as a temporary force to ensure the sex provision of Title VII was enforced, as the organization emerged from the second and third stages of legal mobilization, it found itself with an expanded agenda. The group also inspired the creation of new alliances and groups, which would contribute to the second wave of the feminist movement. As a result, claims and agency responses to them led to a transformation of society through the formation of NOW. By the end of 1968, civil rights groups were becoming frustrated by the bureaucracy and were increasingly interested in private action as the ideal vehicle for Title VII development. NOW was no exception as it modeled itself after the NAACP and turned toward litigation to develop the sex provision of Title VII. This chapter provides insight in how and why NOW formed, as well why the group turned toward to

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private action to mobilize Title VII’s sex provision – especially when combined with the evidence Mulroy offers in Chapter 2 concerning how the EEOC encouraged litigation. Yet, I also demonstrate in this chapter how individuals, interest groups, and agencies interact in important ways that shape the meaning of rights and role of agencies in creating social change via the mobilization of law, providing an understanding how important legal mobilization at the agency level is to the struggle over rights advancement in the United States.

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4 Motivating Litigants to Enforce Public Goods: Evidence from Employment, Housing, and Voting Discrimination Policy Paul Gardner “The entire history of the development of civil rights law is that private suits have led the way and government enforcement has followed.”1 Jack Greenberg, Director of the NAACP Legal Defense and Education Fund (LDF), spoke for many leaders of the civil rights groups when in 1972 he extolled the virtues of private litigation for civil rights to a Senate Committee considering an extension of the job discrimination protections of Title VII of the 1964 Civil Rights Act. This represented a substantial departure, however, from the positions taken by civil rights interest groups in 1964 when Congress first included the private enforcement provisions in the law. Even as employment discrimination litigation grew more successful, some civil rights advocates, like Congressman John F.  Sieberling, noted the weakness of private action, stating, “Private attorneys general are citizens and organizations which seek judicial enforcement of federal laws, not so much for themselves individually as for the benefit of the public… Public interest law involves substantial legal issues which no individual could raise as a practical matter. No individual is likely to undertake extraordinarily expensive litigation if he has only a limited financial stake in the outcome.”2 In part, the shift reflected a change in the political situation – Nixon had taken the White House in 1968, and civil rights groups noted the Republican president’s lesser commitment to robust civil rights enforcement. But there were other important shifts that took place. Between the passage of the Civil Rights Act in 1964 and the debate over the 1972 amendments, civil rights interest groups and public interest law firms began to develop new capacity to deal with discrimination across a number of policy areas. Aided by the proliferation of new civil rights statutes with private enforcement provisions, civil rights groups began to use legal policy and court judgments to force meaningful social and economic changes for African Americans. 1 2

“Hearings on Awarding of Attorneys’ Fees,” Congressional Record. 94th Cong., 1st sess., 1975. 64: 2. Ibid., 2–3.

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The success of the National Association for the Advancement of Colored People (NAACP) and LDF in employment discrimination had made private enforcement indispensable for that policy. The authorization of private enforcement actions under Title VII clearly paved the way for lawsuits that have become a huge component of federal court dockets. Sean Farhang argues that the increasing use of private enforcement statutes like those in Title VII are in large part responsible for the flood of cases into the federal courts – that Congress has deliberately favored private enforcement since the 1960s.3 Yet, it does not necessarily follow that Congress’s increasing reliance on private enforcement regimes has led to the growth in lawsuits. Congressional choice of enforcement regime is only one step along the way, and scholars have already shown the extent to which other political actors can influence private enforcement.4 And indeed, private litigation has not become such an essential enforcement tool in all areas of civil rights. As can be seen in Figure 4.1, while employment discrimination litigation boomed, private enforcement of voting and housing guarantees remained quite modest. The explosion of employment discrimination litigation has been well documented and has been used as the key example in the success of private enforcement regimes for activists and academics alike. But despite the commitment of civil rights groups to private enforcement across a number of policy areas, private enforcement regimes in other civil rights statutes failed to generate the massive caseloads of employment discrimination. What explains the variation in the number of lawsuits within and across these areas, and why did civil rights groups remain so committed to private enforcement in policy areas where less litigation was taking place? Here, I argue in some policy areas, the political and legal environment was not conducive for plaintiffs to bring substantial numbers of private enforcement suits. Focusing primarily on the actions of interest groups, I  explain the barriers to private legal claiming for housing discrimination and voting dilution lawsuits. The analysis later in the chapter shows that interest groups can break down some of the barriers that plaintiffs face in bringing private enforcement lawsuits. I also argue, however, that 3

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Sean Farhang. “Public Regulation and Private Lawsuits in the American Separation of Powers System,” American Journal of Political Science 52 (2008): 821–839; Sean Farhang, The Litigation State: Public Regulation and Private Lawsuits in the United States (Princeton, NJ: Princeton University Press, 2010). See, e.g., Paul Frymer, “Acting When Elected Officials Won’t: Federal Courts and Civil Rights Enforcement in U.S. Labor Unions, 1935–85,” American Political Science Review 97 (2003): 483– 499; Paul Frymer, Black and Blue: African Americans, the Labor Movement, and the Decline of the Democratic Party (Princeton, NJ: Princeton University Press, 2007); Robert C. Lieberman, Shaping Race Policy: The United States in Comparative Perspective (Princeton, NJ: Princeton University Press, 2005); and Quinn Mulroy, “Public Regulation through Private Litigation: The Regulatory Power of Private Lawsuits and the American Bureaucracy” (PhD diss., Columbia University, 2012), discussed in greater detail later.

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Figure 4.1 Cases filed by issue area, 1977–2012.

some features of these policy areas were insurmountable even through organized action, and that interest group actions and priorities demonstrate the deficiency of these private enforcement regimes. Though the analysis here has implications for how successful private enforcement regimes will be in reducing discrimination, that is not the primary goal of the present research. Rather, the object of study in this chapter is legal disputing itself and the incentives that exist for different types of actors to make discrimination claims in courts of law. To that end, the primary data analyzed in this chapter is the number of private civil rights lawsuits filed in federal district courts. In the sections that follow, I use quantitative empirical analysis to show that interest group support structures for litigation influence filing rates, followed by historical analysis of employment discrimination, fair housing, and voting dilution litigation to examine the variation of interest group support for private litigation. In the final section, I discuss implications of the results for the successful implementation of private enforcement regimes.

A Theory of Private Litigation of Public Laws Though laws outlawing bias in housing, voting, and employment all have the goal of reducing societal discrimination, individual statutes distribute rights and benefits in different ways. Employment discrimination cases provide monetary benefits to individuals, but do not distribute any benefits more broadly to the community. On the other hand, successful plaintiffs in voting rights dilution cases have their voting

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rights restored as do other members of the discriminated class in the broader community. Stated another way, the benefits of successful employment discrimination lawsuits are primarily privately held by an individual, but the benefits of successful voting rights claims are publicly distributed. Public and private benefits are not mutually exclusive. Successful employment discrimination suits can have spillover effects, especially when cases are brought as class actions involving a large number of employees. Moreover, successful employment discrimination claims might lead to institutional reforms5 or increased workplace diversity6 that might provide benefits to people who were not a party to the lawsuit. The balance of private and public benefits is particularly salient in private enforcement regimes because enforcement is dependent on plaintiffs bringing lawsuits. Who gets what from lawsuits is a significant factor in how, when, and what kinds of plaintiffs will be willing to bear the costs of lawsuits. Even where public and private benefits are available, we must recognize that, at least to some degree, private enforcement provisions place the burden on individuals to protect their own rights, a task that is both onerous and uncertain. The costs can be significant. For a person to bring a lawsuit, a number of sequential steps have to be taken. Law and society scholars have noted that even in the presence of “perceived injurious experiences,” those experiences must be “transformed” in order to becomes lawsuit.7 Felstiner, Abel, and Sarat argue that individuals must recognize injuries by “naming” them as such before “blaming” the responsible party, and “claiming” restitution of some kind against that party. This barrier is far from trivial; Kristin Bumiller notes that half of grievances are never translated into claims8 and that very few victims of discrimination receive a satisfactory resolution of their claims.9 Moreover, the barriers to claiming are not merely monetary – victims of discrimination, Bumiller argues, fail to articulate grievances not because they fail to recognize that legal rights and monetary remedies exist, but because the procedures of legal claiming are unfamiliar or formal legal claims threaten to “disrupt the delicate balance of power between themselves and their opponents.”10 The translation of discrimination grievances into legal claims, however, does not occur in a vacuum. At each step, the legal and political environment will affect 5

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Lauren B. Edelman, “Legal Environments and Organizational Governance: The Expansion of Due Process in the American Workplace,” American Journal of Sociology 95 (1990): 1401–1440. Sheryl Skaggs, “Producing Change or Bagging Opportunity? The Effects of Discrimination Litigation on Women in Supermarket Management,” American Journal of Sociology 113 (2008): 1148–1182. William L. F. Felstiner, Richard L. Abel, and Austin Sarat, “The Emergence and Transformation of Disputes: Naming, Blaming, Claiming …,” Law & Society Review 15 (1980): 631. As defined by Felstiner et al., “The Emergence and Transformation of Disputes.” Kristin Bumiller, “Victims in the Shadow of the Law: A Critique of the Model of Legal Protection,” Signs: Journal of Women in Culture and Society 12 (1987): 421–439. Ibid., 438.

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the ability and inclination of a potential plaintiff to seek a lawsuit. The environment begins with the statute itself. Direct litigation incentives, like the availability of attorney’s fees and damage multipliers, directly affect the private benefits that accrue to plaintiffs. This has been acknowledged by scholars; Sean Farhang focuses on statutory incentives to bring suits, rather than private enforcement regimes themselves.11 Robert C. Lieberman similarly gives attention to the ways in which weak bureaucracies are able to transform their agendas to support private litigation. In the absence of strong enforcement powers at the Equal Employment Opportunity Commission (EEOC), bureaucratic effectiveness “depended heavily on its ability to persuade rather than coerce.”12 Statutory and bureaucratic incentives, however, are not necessarily sufficient to change the behavior of plaintiffs in a policy area that is not conducive to private claiming. Indeed, Lieberman notes that the EEOC depended significantly on outside political actors to enforce employment discrimination policy. In this vein, Paul Frymer has argued that friendly judges were essential to the success of employment discrimination plaintiffs, bolstering the benefits to legal claiming through the construction of favorable doctrine and through creative enforcement procedures.13 In related work, I  demonstrate that these effects exist across a number of policy areas, and that political partisanship of executive and judicial actors plays an important role in the amount of litigation that takes place under private enforcement statutes.14 In this chapter, I argue that allied interest groups have a unique opportunity to support private litigation. While judicial actors can affect plaintiff claiming by increasing the probability of success, and executive branch actors can direct resources to support private claimants, interest groups are best situated to bridge the gap between grievance and legal claims. Indeed, there already exists some limited evidence that civil rights claimants seek out civil rights and civil liberties groups for support in discrimination cases. Results of a survey conducted in the late 1970s – still early in the growth of civil rights litigation – indicated that aggrieved persons viewed interest groups as supportive and effective actors on their behalf.15 Interest groups can 11 12 13 14

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Farhang, The Litigation State. Lieberman, Shaping Race Policy, 163. Frymer, “Acting When Elected Officials Won’t.” Paul Gardner, “Mobilizing Litigants:  Private Enforcement of Public Laws” (PhD diss., Princeton University, 2015). “Survey of Households in Five Judicial Districts of the United States: A Civil Litigation Project, 1977– 1979” (ICPSR 9743). Respondent 506606 sought assistance from the Urban League; Respondent 200955 reported that an employer “hopped to attention” after the NAACP became involved in an employment dispute. Other respondents sought assistance from the American Civil Liberties Union and legal aid offices. For more discussion of the Civil Litigation Research Project (CLRP), see Joel B. Grossman, Austin Sarat, Herbert M. Kritzer, Stephen McDougal, Kristin Bumiller, and Richard Miller, “Dimensions of Institutional Participation:  Who Uses the Courts, and How?” Journal of Politics 44 (1982): 86–144; Herbert M. Kritzer, Austin Sarat, David M. Trubek, Kristin Bumiller, and

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not only marshal financial and experiential resources that are often unavailable to victims of discrimination, but they also can be trusted allies in translating grievances into legal claims. Given the types of roadblocks that potential plaintiffs face, non-governmental actors, like public interest lawyers and interest groups, can provide essential support to legal claiming for plaintiffs. From providing information about what the law prohibits, to providing information about how to bring a claim, to directly representing plaintiffs, there are a number of roles along the way that interest groups can play to support legal claiming by private plaintiffs. Charles R. Epp has argued that interest groups can act as “support structures” for litigation, and particularly emphasizes the role of groups in the changing orientation of courts toward civil rights and civil liberties claims.16 With increased organization, civil rights and civil liberties interests were better able to make constitutional claims heard in courts. Similarly, the success of private enforcement regimes cannot be solely explained by the proliferation of enforcement statutes – we must consider interest groups actors as mediators of the litigation environment. Civil rights groups that lobbied for the passage of the Civil Rights Act, the Voting Rights Act (VRA), the Fair Housing Act (FHA), and other supporting legislation will clearly be invested in ensuring that adequate enforcement exists to protect the rights embedded in the statutes. But with limited resources, groups will be constrained in their ability to support all kinds of litigation for all types of plaintiffs. As will be shown later, civil rights groups invest their resources in enforcement efforts that they feel will provide the greatest benefits to their constituencies. This will, in part, be dictated by the missions of the relevant interest groups, but it will also reflect the nature of the policy itself, including the distribution of public and private benefits. Support from interest groups combines with the direct incentives of plaintiffs to determine the costs and benefits expected from lawsuits. Moreover, support will take different forms based on the combination of public and private benefits of the policy. Figure 4.2 summarizes the expectations. The figure dichotomizes benefits into “low” and “high” public and private benefits for the sake of simplicity, but in reality public and private benefits exist on a spectrum. I describe the general expected patterns of litigation and interest group support across the various scenarios. Individual victims of discrimination will be most responsive to the provision of private benefits because they are sensitive to how easily they can recover specific (usually economic)

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Elizabeth McNichol, “Understanding the Costs of Litigation: The Case of the Hourly-Fee Lawyer,” Law & Social Inquiry 9 (1984): 559–581; and Herbert M. Kritzer, “Studying Disputes: Learning from the CLRP Experience,” Law & Society Review 15 (1980): 503. Charles R.  Epp, The Rights Revolution:  Lawyers, Activists, and Supreme Courts in Comparative Perspective (Chicago, IL: University of Chicago Press, 1998).

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Absence of litigation; low cost solutions will be preferred where available

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Figure 4.2 Expected plaintiff and support.

benefits and prefer quick and tangible restitution.17 In the case of employment discrimination, these private benefits are high, which is in part what generates the substantial number of cases that characterize Title VII litigation.18 In public policy areas where the private benefits of individual claiming are low, we would expect fewer individuals to independently pursue litigation. Yet private enforcement regimes also entail public benefits – that is, individual cases by private plaintiffs are intended to produce diffuse benefits, like the elimination of discrimination or, in the environmental context for instance, improved air or water quality. While individual plaintiffs might be motivated by broad public policy goals, these litigants will not be well positioned for success. In the absence of public benefits, the function of private enforcement regimes will be substantially different. While private cases might still be an important enforcement tool, litigation strategies will be more focused on resolving individual 17

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Derrick A. Bell, “Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation.” The Yale Law Journal 85 (1976): 470–516; Farhang, The Litigation State. Farhang, The Litigation State.

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suits than on creating deterrence emphasized by previous scholars. Pamela Bucy explores the differing functions of what she calls the “victim” private justice model and the “private good” private justice model, but the differences across different private enforcement regimes does not just stop with whether the plaintiff has suffered individualized harm. Bucy notes: The design of the various private justice models is quite different. Some promote class actions, others discourage them. Some models successfully encourage coordination between public and private enforcers; others try but fail; and some do not try at all. Some private justice actions are lucrative for private plaintiffs; others are noticeably stingy. Despite their differences, examination of the various private justice models provides insight into the benefits and problems presented by the private justice…19

There is more, however, that can distinguish these different regimes. Key to understanding their function is the concept that scholars of American political development refer to as intercurrence,20 in which the simultaneous actions of different actors influence the development of politics and policy. In the case of the private enforcement of civil rights policy, I  argue in the following that the initial conditions of civil rights private enforcement regimes in housing, employment, and voting rights policy affect the ways in which potential plaintiffs used those regimes. This in turn affects their future development. I show in the discussion to follow that while the initial influx of employment discrimination cases caused interest groups to seek favorable doctrine in the courts that then made future cases easier to bring, in the housing and voting context, the low initial benefits meant interest groups were less likely to seek favorable doctrine in the courts that kept lawsuits unprofitable for individuals. Even as Congress later sought to decrease the costs and increase the rewards for private lawsuits, still the groundwork remained lacking for successful housing and voting lawsuits at the mass level. The extent of the private benefit is the primary motivator of the individual’s willingness to bring suit, but the level of public benefit predicts the willingness of ideologically motivated interest group actors to support litigation. In policy areas where there is a high potential for public benefit, interest groups will be willing to step in to support litigation where little litigation would otherwise occur because private litigants lack motivation to bring suit. In policy areas where both private and public benefits are high, as in employment discrimination litigation, interest groups can be their most effective by selecting the best cases to create favorable precedent21 while 19 20

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Pamela H. Bucy, “Private Justice.” Southern California Law Review 76 (2002): 12. Karen Orren and Stephen Skowronek, The Search for American Political Development (New York: Cambridge University Press, 2004). Stephen L. Wasby, Race Relations in an Age of Complexity (Charlottesville, VA: University of Virginia Press, 1995).

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Figure 4.3 Interest groups as mediators to litigation.

simultaneously supporting private litigants in other lawsuits in an effort to create the caseloads necessary for the deterrent threat to be real to litigants. While lawsuits brought by groups may have important effects in individual cases, general deterrence is less likely to be achieved in areas with low litigation levels associated with low private benefits for litigants. With individuals seeking primarily private goals and interest groups seeking to support private plaintiffs to sustain public policy enforcement, we can conceptualize interest groups as a mediator between plaintiff motivations to sue and the institutional environment in which potential plaintiffs operate. Figure 4.3 represents the relationship that interest groups have with respect to the overall political environment. While interest group action can support plaintiffs’ claims, thereby increasing litigation, their strategies also reflect the broader political environment. Interest groups both respond to institutional and environmental incentives as they attempt to make use of private enforcement statutes, but their ability to affect policy enforcement is through support for litigation. The remainder of this chapter demonstrates how interest groups act as a mediator for potential plaintiffs. I suggest that interest groups foster litigation by adding to the supportive environment for litigants, but that the mechanisms and priorities of support reflect the nature of policy and the limits to creating mass litigation in areas with high costs and insufficient benefits.

Effect of Interest Group Environment on Lawsuit Filing I argue that the political environment broadly, and interest group organization in particular, should affect the amount of legal claiming we observe in private enforcement regimes. My empirical approach is twofold. First, I  employ data from the federal judicial districts from 1980 to 2007 to show that high interest group activity is correlated with more civil rights claiming, but only for policies with private benefits. Next, I  use historical documents, including NAACP and LDF newsletters, correspondence, and records of congressional debates, to show that interest group

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investments in different litigation arenas reflected their evaluation of their ability to create meaningful enforcement through private litigation. Absent general deterrence, the number of lawsuits filed is an important metric of the effect of private enforcement regimes. Frymer argues that it was the “massive” amounts of litigation that forced unions to change their discriminatory behavior.22 When more litigation is taking place, more enforcement is taking place and litigation has a greater deterrent threat.23 Therefore differences in levels of filing within policy areas can help us to understand how private enforcement regimes function in different policy environments. Ideally, in order to determine the effect of political and legal environments on plaintiffs’ decisions to file lawsuits, researchers would collect a set of all perceived grievances and determine which grievances are translated into lawsuits. Identifying discrimination grievances, however, would require massive survey analysis and would be geographically limiting.24 Instead, I focus on the observed yearly filings of civil rights discrimination claims in federal courts. Grossman et al. suggest that tendency to file lawsuits varies across different federal district courts; therefore the panel design of the data allows for inferences across districts and time.25 In order to examine the effect of the political environment on legal claiming, I collect a measure of litigation activity from the Administrative Office of the United States Courts.26 From an original dataset containing all terminated federal civil lawsuits, I construct a measure of private civil rights claims in each of the federal judicial districts from 1980 to 2007.27 The data are the number of filings in federal district courts in three civil rights areas – jobs, housing, and voting – as well as a catchall “other” civil rights.28 The number of cases filed ranges widely. In each of 22 23

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Frymer, “Acting When Elected Officials Won’t”; Frymer, Black and Blue. However, we should be skeptical of making this broad claim across policy areas. The differing nature and amounts of discriminatory activity across policy areas suggest that analyses that examine changes within policy areas will be better at identifying the relative effectiveness of litigation as an enforcement mechanism. See, e.g., Grossman et al., “Dimensions of Institutional Participation”; Kritzer et al., “Understanding the Costs of Litigation”; Kritzer, “Studying Disputes.” Grossman et al., “Dimensions of Institutional Participation.” Federal Judicial Center, “Federal Court Cases, Integrated Data Base 1980–2012.” Dataset, Interuniversity Consortium for Political and Social Research, 2014. I exclude the US Federal District Court for the District of Columbia and territorial courts because I lack key independent variables to test the claims in this chapter. According to the Bureau of Justice Statistics, “Available data on the statutory provisions litigated suggest that filings in the other civil rights complaints category dealt with diverse issues such as the civil rights of handicapped children, education of children and adults with disabilities, as well as vocational disabilities and rehabilitation discrimination.” Tracey Kyckelhahn and Thomas H.  Cohen, “Civil Rights Complaints in U.S. District Courts, 1990–2006,” Bureau of Justice Statistics Special Report, 2008. Other civil rights also often contain combined claims, especially with job discrimination, but generally the issues are areas with high private benefits.

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the four policy areas there were some years in which a federal district court had no civil lawsuit filings. The most cases were filed for employment discrimination claims in the Northern District of Illinois in 1994, when a total of 1,186 cases were initiated, but this magnitude of filings is atypically large – a district-year with 300 employment discrimination filings is nearly in the 90th percentile. The typical district during the years sampled had one voting case, two housing cases, and about eighty-five employment discrimination cases. The key effect to be tested is whether more interest group support motivates more lawsuit filing. While there exist some measures of interest groups by policy area at the national level,29 and also limited data at the state level,30 measuring interest group activity at a subnational level is a challenge. Measures of interest groups must be able to distinguish groups that are focused on civil rights and liberties at state level or finer. Recent work has made use of campaign donations, primarily to determine the ideologies of donors and candidates.31 However, this is also a rich source of data about the activity of interest groups geographically across the United States. The dataset categorizes interest group donors by their primary advocacy goals, noting the number and size of contributions to candidates. Most importantly, the data includes information on the location of interest group organizations that make donations.32 In order to identify the impact of interest group activity on rates of filing activities in federal courts, I count the number of donations made by civil rights and civil liberties groups located in a particular state.33 Additionally, I collect a number of control variables. A related work has shown the importance of executive and judicial actors to filing rates,34 so I include measures for presidential partisanship, as well as for partisanship of federal circuit and district courts. Additionally, I include controls for the population size of the federal 29

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See, e.g., Andrew W. Martin, Frank R. Baumgartner, and John D. McCarthy, “Measuring Association Populations Using the Encyclopedia of Associations:  Evidence from the Field of Labor Unions,” Social Science Research 35 (2006):  771–778; Kay Lehman Schlozman, Sidney Verba, and Henry E. Brady, The Unheavenly Chorus (Princeton, NJ: Princeton University Press, 2012). Virginia Gray and David Lowery, The Population Ecology of Interest Representation:  Lobbying Communities in the American States (Ann Arbor, MI: University of Michigan Press, 2000). See, e.g., Adam Bonica, “Ideology and Interests in the Political Marketplace,” American Journal of Political Science 57 (2013): 294–311. There may be some concern that interest groups may be geographically located in one state, but have a national policy advocacy profile. Indeed, some groups are engaged in donation activities outside the states in which they are located. Practicality dictates, however, that access to interest group support will be limited by geography, as will the priorities of interest groups. Additionally, this concern should be alleviated by the fact that many donating groups operate with a franchise structure, and various chapters engage in independent donation activity. The measure is based on the location of the group making the donation, but not the location of the candidate receiving the donation, so that monetary contributions proxy for interest group activity where the money originates. See note 4.

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district and the proportion of the population of African American race to account for overall expected litigation activity. Finally, in order to control for state political environments, I include a dummy variable for whether the governor in a state is a Republican. In order to test the effect of interest group activity on federal court civil rights filings, I  employ a multilevel model because of the nested structure of the data, with federal districts located within states and federal circuit courts. In order to account for this complex data structure, the model includes intercepts that vary at the policy, circuit, state, and district level. Additionally, I include varying slopes for interest group activity at the policy area level, in order to determine whether the effect of interest group activity varies for legal claiming in employment discrimination, housing discrimination, and voting dilution. Again, we would expect that for housing and employment litigation, the presence of interest groups should mean more access to support for litigation, and therefore higher levels of claiming in those geographic areas. In contrast, the absence of private incentives for private voting dilution lawsuits under the Voting Rights Act means that interest group activity should have no effect on overall claiming. Table 4.1 displays the results of the analysis. The first column displays the results of a multilevel model with varying intercepts for circuit, state, district, and policy area. The second column is a panel model with the individual being the district policy. The third column is an ordinary least squares (OLS) model including indicators for district and policy area. The results are substantively similar across model specifications. The models vary in the way they estimate the different effect of interest group activity, but the main result is consistent: interest group activity has a positive effect on claiming in housing and employment discrimination, but a small negative (substantively null) effect on the number of voting rights cases filed in federal courts. For greater clarity, I  plot the relationship between interest group contributions and lawsuit filings in Figure 4.4. For both housing and employment, the effect is quite large. A one standard deviation increase from the median number of interest group contributions is associated with about fourteen additional case filings alleging employment discrimination – nearly an 18 percent increase in the number of cases. A one standard deviation change in interest group activity is associated with a nearly 30 percent increase in the number of housing discrimination cases, though because of the small number of overall cases, this is only about one additional case per district. Still, this effect is substantial; one additional case across eighty-nine federal districts represents a non-trivial number of housing discrimination cases. In contrast, there is little relationship between voting discrimination cases and interest group activity. Each of the policy areas displays a strong positive relationship, with the exception of voting rights cases. I argue that legal claiming is considerably constrained for potential plaintiffs, but that constraints could be mitigated, at least in part, by the actions of supportive interest

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Paul Gardner Table 4.1 Results Multilevel Model

With District Panel Model

Least Squares with Indicator

0.05 (0.41)

0.06*** (0.02)

0.10*** (0.02)

Voting × contributions

–0.17*** (0.02)

–0.26*** (0.03)

Employment × contributions

0.06* (0.02)

0.01 (0.04)

Housing × contributions

0.05* (0.03)

0.04 (0.02)

Interest group contributions

Circuit court partisanship

0.23*** (0.08)

0.26* (0.11)

0.26* (0.12)

District court partisanship

0.03 (0.04)

0.06 (0.06)

0.06 (0.06)

Proportion of black population

1.91*** (0.36)

–2.40 (1.64)

–2.40 (1.21)

Republican governor

–0.01 (0.01)

–0.01 (0.02)

–0.01 (0.02)

Democratic president

0.26*** (0.07)

0.04 (0.03)

–0.21* (0.09)

Population (logged)

0.73*** (0.04)

0.46* (0.18)

0.46* (0.22)

8000

8000

Cluster standard errors

✓

✓

Year fixed effects

✓

✓

Varying slopes Employment

0.05*** (0.003)

Housing

–0.20*** (0.003)

Voting

0.06*** (0.003)

Other

0.09*** (0.003)

Observations

*p < 0.05, ∗∗p < 0.01, ∗∗∗p