Private Rights and Private Actions: The Legacy of Civil Rights in the Enforcement of Title VII

Part I of this Article examines the recent revisionist history, recognizing the insights it has offered, but raising questions about the perspective that it takes. No one can doubt the retreat of civil rights supporters in the intense debates over Title VII, both in 1964 when the Civil Rights Act was passed and in 1972 when Title VII was expanded and amended. In both instances, EEOC enforcement stopped well short of adjudication of claims against private employers. This result marked a sharp break with state fair employment practice laws. It did not, however, represent any departure from traditional enforcement of civil rights laws. Part II takes up that tradition, beginning with the original civil rights acts passed in the wake of the Civil War and the ratification of the Reconstruction amendments. That history goes back to the contrast between enforcement through “the machineless functioning of the rule of law,” by a combination of public and private litigation, and the limited duration of the extraordinary measures undertaken by the Freedmen’s Bureau and the Union Army in the immediate aftermath of the war. Some historians find, in this limited commitment to these measures, the seeds of failure of Reconstruction. They might well be right, but the abandonment of administrative enforcement by these means restored the default mechanism of enforcing private rights: through litigation. Part III finds the same dynamic in the debates over Title VII and links it to the nature of civil rights. These rights can be interpreted in the colloquial sense of rights against discrimination or in their original sense of the rights of citizens. The first sense risks making civil rights a matter of special interest politics, of greatest concern to those groups which traditionally have suffered from discrimination, while the second links prohibitions against discrimination to the rights of citizens to equal participation in public life. As a technical matter, civil rights have expanded beyond the rights of citizens alone, to those of all “persons,” yet the principle of equality has only become stronger as its scope has increased. Title VII represents part of this process of expansion, and it affects both the content of the rights that it protects and the means by which they are enforced. The revisionist scholarship must take this history into account.