Be Careful What You Wish For: Ronald Reagan, Donald Trump, The Assault on Civil Rights, and The Surprising Story of How Title VII Got Its Private Right of Action

Source: David B. Oppenheimer, Henry Cornillie, Henry Bluestone Smith, Thao Thai, Richard Treadwell, Berkeley Journal of Employment and Labor Law, Vol. 39 No. 1, 2018, Posted: 9 May 2019

From the abstract:
This essay reviews the impact of President Ronald Reagan’s policies on civil rights enforcement in the 1980s, as he tried to turn back the clock on civil rights. Reagan devastated the civil rights enforcement agencies, as he pandered to the white nationalists who helped him win election. But Reagan’s attempts ultimately failed, and leave behind an important lesson for President Donald Trump. Reagan’s appointments to and policies at the Equal Employment Opportunity Commission (EEOC), the Department of Justice’s Civil Rights Division, and the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) seriously damaged civil rights enforcement. But employment discrimination law has survived and continues to be an often-effective tool against racism, misogyny, homophobia, religious hatred, and other forms of discrimination. Title VII cases (and claims under parallel statutes) continue to be a major part of the caseload in federal courts. Why? Because the Civil Rights Act is largely enforced by private civil rights groups and lawyers in private practice who bring cases before independent judges pursuant to a private right of action.

Did a progressive Congress have the foresight to recognize that a private right of action would protect the victims of discrimination from future administrations hostile to civil rights, and thus include it in the statute as a check against enforcement agencies captured by civil rights opponents? Hardly. Rather, moderate and conservative Senate Republicans, resigned to the fact that an employment discrimination law was inevitable, and fearful of a powerful federal agency that would restrict business autonomy in the manner of the National Labor Relations Board (NLRB), substituted a private right of action for agency adjudication in an attempt to sabotage the effectiveness of Title VII. In 1964, the adoption of a private right of action was widely seen as a great loss for civil rights advocates, turning Title VII from an enforceable law to an ineffectual call for voluntary compliance with anti-discrimination policies. Almost no one foresaw the development of a private bar of plaintiffs’ employment discrimination lawyers.

Those who tried to sabotage the enforcement of civil rights through a private right of action should be turning in their graves, having inadvertently given civil rights advocates a powerful tool to resist assaults on civil rights.