Approaches to enforcing the rights revolution: Private civil rights litigation and the American bureaucracy

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 civil rights enforcement.