The rights revolution revisited : institutional perspectives on the private enforcement of civil rights in the U.S

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 inter-branch 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. Cover 1 Half-title 3 Title page 5 Copyright information 6 Dedication 7 Table of contents 9 List of figures 11 List of tables 12 List of contributors 13 Acknowledgments 19 Part I Introduction 21 1 Reassessing the Rights Revolution 23 Taking Stock 24 The Shift to Private Enforcement of Civil Rights 31 Interbranch Dynamics 35 Litigation and Its Discontents 38 Plan of the Book 41 Part II Implementing the Rights Revolution 45 2 Approaches to Enforcing the Rights Revolution: Private Civil Rights Litigation and the American Bureaucracy 47 Legal versus Administrative Approaches to Civil Rights Policy Enforcement 48 Bureaucratic Mobilization of Private Civil Rights Litigation 51 Administrative Processes 52 Shaping the Law 53 Assisting the Bar 54 Off to the Courts? A Comparison of Fair Employment and Fair Housing Regulation 55 Employment Discrimination Regulation at the EEOC (1964–1972): Paving a Pathway to the Courts 57 Fair Housing Regulation at HUD (1968–1972): Blocking a Private Legal Pathway 60 The Legacy of Administration and Legal Approaches to Civil Rights Regulation 63 3 Mobilizing Rights at the Agency Level: The First Interpretations of Title VII’s Sex Provision 66 Legal Mobilization Framework 68 Methodology 70 Case and Data Selection 71 The EEOC Opens Its Doors (and Mailroom) 72 EEOC Mandate 72 Agency Response 73 Legal Mobilization Theory at the Agency Level 75 Movement Building: Individual Interpretations 75 Movement Building: Delays and Denials Lead to the Formation of NOW 78 The Struggle to Compel Formal Policy Changes 82 The Struggle for Control over Policy Development and Implementation 84 A Transformative Legacy 87 Conclusion: Agency Action and Legal Mobilization 87 4 Motivating Litigants to Enforce Public Goods: Evidence from Employment, Housing, and Voting Discrimination Policy 90 A Theory of Private Litigation of Public Laws 92 Effect of Interest Group Environment on Lawsuit Filing 98 Interest Group Strategies for Civil Rights Lawsuits 103 Employment Discrimination 105 Housing Discrimination 107 Voting Rights 114 Conclusion 118 5 Regulatory Rights: Civil Rights Agencies, Courts, and the Entrenchment of Language Rights 120 Civil Rights Agencies Governing by Guidance 121 Courts and Agencies: Judicial Deference to Guidance’s Impact or Effect 123 Schools: Integrated Remedial Model 126 Workplace: Court Constraints 128 Sociolegal Influences on and of the Law 129 Bilingual Education in the Shadow of the Law 130 Legal and Social Constraints on Workplace Policies 132 Intertwining Hard and Soft Law 133 Regulatory Rights Roller Coaster 134 Persistence of Regulatory Rights 135 Entrenchment of Nondiscrimination 136 Entrenchment of Regulatory Strategies 138 Ongoing Challenges to Regulatory Rights 140 Conclusion 142 6 Sexual Harassment and the Evolving Civil Rights State 143 Controversies 146 Sexual Harassment and the Civil Rights State 148 Phase One: Attacking Sexual Harassment in the Workplace 153 Phase Two: Sexual Harassment Regulation Goes to School 160 Interlude: Disputed Foundations 169 Phase Three: The Obama Initiative 174 Defining “Sexual Harassment” and “Hostile Environment” 175 Procedures for Soliciting, Investigating, and Resolving Complaints 177 Remedial Measures to Minimize the Effects of Sexual Harassment 178 Remaking School Culture 179 Strengthening Internal Compliance Offices 180 Conclusion 184 7 The Civil Rights Template and the Americans with Disabilities Act: A Sociolegal Perspective on the... 187 The Political Legacy of the CRA: The Enduring Bipartisan Appeal of the Civil Rights Template 189 Stretching The Civil Rights Template 193 The “Structural Turn” in Civil Rights Scholarship 194 The Sociolegal Model 197 Disability Access Law and the Policy Legacy of the Civil Rights Template 200 Six Organizational Responses to the ADA’s Civil Rights Template 203 The Ostriches 203 The Recalcitrant Compliers 204 The Symbolic Responders 205 The “Beyond Compliance” Responders 206 The Ad Hoc Service Providers 207 The Seekers 208 What Our Stories Say About the Civil Rights Template 209 Formal Rights Versus Organizational Translations 209 Litigation Makes a Difference, But Its Impact Varies 211 The Gap between Organizational Responses and Outcomes 212 Variation Not Averages 212 An Organizational Turn? 213 Part III Rights and Retrenchment 215 8 Retrenching Civil Rights Litigation: Why the Court Succeeded Where Congress Failed 217 The Rise of Civil Rights Litigation 217 The Legislative Project of Litigation Retrenchment 221 The Reagan Administration 221 Litigation Retrenchment Proposals in Congress 225 The Failure of the Legislative Project of Litigation Retrenchment 229 The Alternative Pathway of Courts 233 The Supreme Court’s Response 234 Why the Court Succeeded Where Republican Presidents and Congress Failed 241 Conclusion 243 9 The Contours of the Supreme Court’s Civil Rights Counterrevolution 244 Early Civil Rights Retrenchment and Reform 246 Getting into Court 255 Proving Employment Discrimination 263 Harassment and the Hostile Workplace Doctrine 268 Retaliating against Retaliation 274 The Fate of Disparate Impact 282 Assessing the Supreme Court’s Counterrevolution 285 10 Constraining Aid, Retrenching Access: Legal Services after the Rights Revolution 287 The Origins of Legal Aid 291 The Legal Services Corporation and the Politics of Government-Sponsored Legal Aid 294 “Defunding” and the Beginnings of Political Backlash 299 Shifting the Focus: From Defunding to Legal Procedural Restrictions 303 Privatizing Enforcement Further 308 Part IV The Future of the Rights Revolution 313 11 Rationalizing Rights: Political Control of Litigation 315 The Trouble with Litigation: The Calibration Challenge 318 More Trouble with Litigation: (Non-)Coordination and Legislative (In-)Fidelity 321 The Failure of the Usual “Litigation Reforms” 325 The Agency “Gatekeeper” Alternative 331 Agency Gatekeeping in Action: Rethinking Job Discrimination Regulation 334 Conclusion 340 12 The Future of Private Enforcement of Civil Rights 342 The Rights Revolution in an Era of Deepening Polarization 342 Advancing the Rights Revolution 354 Promoting Synergies Between Agency and Private Enforcement of Civil Rights 358 Improving Access to Justice 361 Bringing the People Back In 363 Bibliography 369 Books and Articles 369 Index 395 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. [this Book Explores] The Institutional Dynamics, Scope, And Durability Of The Rights Revolution. By Offering An Inter-branch 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.-- Reassess The Rights Revolution / Lynda G. Dodd -- Approaches To Enforcing The Rights Revolution : Private Civil Rights Litigation And The American Bureaucracy -- Mobilizing Rights At The Agency Level : The First Interpretations Of Title Vii's Sex Provision / Jennifer Woodward -- Motivating Litigants To Enforce Public Goods : Evidence From Employment, Housing, And Voting Discrimination Policy / Paul Gardner -- Regulatory Rights : Civil Rights Agencies, Courts, And The Entrenchment Of Language Rights / Ming Hsu Chen -- Sexual Harassment And The Evolving Civil Rights State / R. Shep Melnick -- The Civil Rights Template And The Americans With Disabilities Act : A Sociological Perspective On The Promise And Limits Of Individual Rights / Thomas F. Burke And Jeb Barnes -- Retrenching Civil Rights Litigation : Why The Court Succeeded Where Congress Failed / Stephen B. Burbank And Sean Farhang -- The Contours Of The Supreme Court's Civil Rights Counterrevolution / Lynda G. Dodd -- Constraining Aid, Retrenching Access : Legal Services After The Rights Revolution / Sarah Staszak -- Rationalizing Rights : Political Control Of Litigation / David Freeman Engstrom -- The Future Of Private Enforcement Of Civil Rights / Lynda G. Dodd. Edited By Lynda G. Dodd. Includes Bibliographical References (pages 349-374) And Index. 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 this book, a distinguished group of political scientists and legal scholars explore the institutional dynamics, scope, and durability of the rights revolution. By offering an inter-branch 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