Week Two Annotated Bibliography Worksheet
Reminders: Each of the four sources here, will need to be peer-reviewed scholarly
sources obtained through the AU Library Databases. Before you begin, be sure
you have critically read ALL of the instructions and that you have watched the video
tutorial for creating an APA formatted Annotated Bibliography and reviewed the Model
APA formatted Annotated Bibliography example .
A. Topic: Enter the overall topic and/or policy of your Week 5 Final Research
1. In a minimum of 5 sentences, write a paragraph here that explains the
topic and/or policy you will focus on in the final research paper, AND directly address
why it is important. Be sure to utilize the Week 2 Discussion Question and Final Paper
B. Annotated Bibliography Sources (Title of Source 1 goes here):
1. Source 1 Related to the Historical and Constitutional Basis of the
American Government’s Structure (enter full APA citation here).
2. In a minimum of 5 sentences, write a paragraph that explains what the
source is about AND detail how and why this source is important and how it will be used
to support the argument you are making for this first main point of the final research
C. Annotated Bibliography Sources (Title of Source 2 goes here):
1. Source 2 Related to how Checks and Balances will directly come into
play in relation to your overall topic and/or policy (enter full APA citation here).
2. In a minimum of 5 sentences, write a paragraph that explains what the
source is about AND detail how and why this source is important and how it will be used
to support the argument you are making for this first main point of the final research
D. Annotated Bibliography Sources (Title of Source 3 goes here):
1. Source 3 Related to how public policy, elections AND the media
impact your overall topic and/or policy (enter full APA citation here).
2. In a minimum of 5 sentences, write a paragraph that explains what the
source is about AND detail how and why this source is important and how it will be used
to support the argument you are making for this first main point of the final research
E. Annotated Bibliography Sources (Title of Source 4 goes here):
1. Source 4 Related to how voting and the election process impacts your
overall topic and/or policy (enter full APA citation here).
2. In a minimum of 5 sentences, write a paragraph that explains what the
source is about AND detail how and why this source is important and how it will be used
to support the argument you are making for this first main point of the final research
Annotated Bibliography Example: This is an example of how your annotations
should look on the Week 2 Annotated Bibliography Worksheet once completed. Please
note this is an actual source, but NOT one applicable for your final research paper.
Brown, K., Royer, S., Waterhouse, J., & Ridge, S. (2005). Virtual workforces and the
shifting frontier of control. The Journal of Industrial Relations, 47(3), 310 -325.
Retrieved from EbscoHost database.
The political process has a significant impact on virtual workforces. Brown,
Royer, Waterhouse, and Ridge (2005) studied how organizations innovate and create
new technology to allow remote employees to communicate virtually. This has changed
a great deal since 2005, but the important aspect of rethinking how employees and
managers do business and manage assignments within the virtual workplace is
discussed. As online education continues to evolve, more changes will be necessary
within online colleges and universities to keep up with the changing technology and to
restructure their workforce to meet the needs of students. These changes can result in
new organizational structures that lead to the need for less hierarchy within an
organization (Brown, Royer, Waterhouse, & Ridge, 2005).
POL 201 Assignment Guide
There is a written assignment in weeks 2-5 of the course. Each assignment builds
toward the Week 5 Final Research paper. After you receive feedback in Weeks 2, 3,
and 4, use it (and any additional research) to construct your Week 5 Final Research
paper. In the sections following, you will see specific guides for each week of the
course to help you understand each part of the overall process.
It is important to understand the overall purpose of the final paper before beginning your
assignment in Week 2, 3, and 4, as we will build towards your final paper. The first part
will involve selecting your topic and finding your research in the Week 2 Discussion and
the Week 2 Annotated Bibliography Assignment. The second part will focus on
establishing a thesis statement and developing a detailed outline in the Week 3 Outline
Assignment. In Week 4, you will develop a rough draft of your paper and send it to the
University of Arizona Global Campus Writing Center for feedback. In Week 5, you will
combine all of the parts and the feedback you have received to develop your Final
Week 5 Final Paper
The primary goal of your final assignment is to critically analyze the specific policy you
will choose that focuses on aspects of the American national government.
Each week, you will prepare for the final assignment by constructing an Annotated
Bibliography (Week 2) and a detailed outline of the Final Paper’s main points (Week 3).
In these assignments, you will focus on the policy you choose and find research to
support your ideas relating to these four areas:
• Historical and constitutional basis for the American Government’s structure
• The system of checks and balances
• The various roles (i.e., public opinion, media, special interest groups, etc.)
concerning public policy and elections
• The voting system and election process.
Your paper will evaluate a specific policy of our national government and recommend
ways to enhance what works and repair what is not working well. It is important that
your Final Paper utilizes your previous research and assignments, including the
feedback that you will receive from the University of Arizona Global Campus Writing
Center in Week 4.
The Final Paper should utilize the POL 201 Final Paper template and be at least six
pages in length (not including title page and references) and based on your previously
submitted assignments. It is important to utilize APA Style Elements headings for major
sections of your paper in order to ensure that the paper is easy to follow. A model
POL201 Final Paper Guide is provided for you to download and utilize when completing
your Final Paper.
Scaffold your paper around the following outline:
• Title page (see Introduction to APA)
• Introduction (half page) (see Introductions & Conclusions)
o Describe the paper’s overall thesis.
o Provide an overview of main points.
• First Main Point (one to one and a half pages) describes the historical and
Constitutional basis of American government’s structure and how this
relates to the policy.
o Describe the main point.
o Support the main point with research.
• Second Main Point (one to one and a half pages) explains how the policy
is involved within the process of checks and balances.
o Describe the main point.
o Support the main point with research.
• Third Main Point (one to one and a half pages) describes how the policy
relates to public policy and elections and how the policy is portrayed by
o Describe the main point.
o Support the main point with research.
• Fourth Main Point (one to one and a half pages) explains how the policy
impacts voting and the election process.
o Describe the main point.
o Support the main point with research.
• Conclusion (see Introductions & Conclusions)
o Review your main points.
o Review your overall thesis.
• References page (see Formatting Your References List)
The Final Paper Assignment
• Must be at least six double-spaced pages in length (not including title and
references pages) and formatted according to APA Style as outlined in the
• Must include a separate title page with the following:
o Title of paper
o Student’s name
o Course name and number
o Instructor’s name
o Date submitted
• Must use at least eight scholarly sources in addition to the course text. A
minimum of five of the resources must be from peer-reviewed scholarly
sources from the University of Arizona Global Campus Library.
o The Scholarly, Peer Reviewed, and Other Credible Sources table
offers additional guidance on appropriate source types. If you have
questions about whether a specific source is appropriate for this
assignment, please contact your instructor. Your instructor has the
final say about the appropriateness of a specific source for a
• Must document all sources in APA style as outlined in the Writing Center.
• Must include a separate references page that is formatted according to
APA style as outlined in the Writing Center.
Now that you understand what the Final Paper will focus on, let’s focus on the different
parts of the assignment that will help you to research and develop a strong final paper.
Part I: Week Two – Annotated Bibliography
In Week Two, you will begin the process of developing your final paper. The first part of
this process will be to determine your topic in the Week 2 discussion forum using the list
of potential topics.
The next step will be to start the research process through your Week Two assignment,
which focuses on the Annotated Bibliography.
Utilizing the Week 2 Annotated Bibliography Worksheet, you will complete the following:
A. Discuss and develop the topic/policy you will focus on for this
assignment. Policy suggestions can be found in the Week Two
Question and Policy Resource and are also addressed in the
Week 2 Discussion.
B. Annotated Bibliography of sources
1. Identify four peer-reviewed scholarly sources obtained
through AU Library Databases to support the four main
points of your final research paper, AND briefly explain what
the sources are about.
2. Detail how and why those sources are important to the point
you will be making.
Model Annotated Bibliography Example: The library provides an example of what an
APA formatted Annotated Bibliography should look like.
Part II: Week 3 Final Paper Outline Assignment
The next step in the development of your Final Paper is developing an outline and a
You will scaffold your paper around the following outline that is provided for you in the
Week 3 Outline Worksheet.
• Title page
• Introduction (half page)
o Describe the paper’s overall thesis.
o Provide an overview of main points.
• First Main Point (1 to 1.5 pages) describes the historical and Constitutional
basis of American Government’s structure and how this relates to the
o Description of the main point.
o Research that supports the main point.
• Second Main Point (1 to 1.5 pages) explains how the policy is involved
within the process of checks and balances.
o Description of the main point.
o Research that supports the main point.
• Third Main Point (1 to 1.5 pages) describes how the policy relates to
public policy and elections and how the policy is portrayed by the media.
o Description of the main point.
o Research that supports the main point.
• Fourth Main Point (1 to 1.5 pages) explains how the policy impacts voting
and the election process.
o Description of the main point.
o Research that supports the main point.
o Review your main points.
o Review your overall thesis.
• References page
At least 4 of your sources must be peer-reviewed scholarly sources obtained through
the University of Arizona Global Campus Library database (completed in your Week 2
Annotated Bibliography). The additional 2 sources for this assignment do not have to
be from the University of Arizona Global Campus Library, but should be reliable,
verifiable, and as free of bias as possible.
Part III: Week 4 Final Paper Draft Assignment
Utilizing your work on your Weeks 2 and 3 Assignments, you will develop a draft of your
Final Research Paper, that you will submit to the University of Arizona Global Campus
Writing Center Paper Review for feedback.
Instructions: Review the Final Paper Assignment instructions for the full requirements.
Be sure to download the POL 201 Final Paper Model, utilize any feedback provided by
your instructor, and use APA formatting throughout your draft. Your draft should be
complete with an introduction, thesis statement, full body paragraphs to support your
ideas, a conclusion, and a full reference list of at least eight resources as detailed in the
earlier assignment instructions.
Once your draft is complete, you will upload your paper into the University of Arizona
Global Campus’s Writing Center Paper Review area for feedback. Feedback is typically
returned in approximately 24 hours. You will need to have your draft complete by Day 7
(Monday) to have time to upload it to the Writing Center and receive feedback. You will
upload the feedback you received from the Writing Center into Waypoint to confirm
completion of your draft and feedback received, to earn the point for the assignment.
You may submit your Writing Center feedback up through Day 3 (Thursday) of Week 5
without a late penalty.
Civil Rights and the Courts in Shaping Health Equity
Viewing Health Equity through a Legal
Lens: Title VI of the 1964 Civil Rights Act
George Washington University
Abstract Enacted as part of the watershed Civil Rights Act of 1964, Title VI prohibits
discrimination by federally assisted entities on the basis of race, color, or national
origin. Indeed, the law is as broad as federal funding across the full range of programs
and services that affect health. Over the years, governmental enforcement efforts have
waxed and waned, and private litigants have confronted barriers to directly invoking its
protections. But Title VI endures as the formal mechanism by which the nation rejects
discrimination within federally funded programs and services. Enforcement efforts
confront problems of proof, remedies whose effectiveness may be blunted by under-
lying residential segregation patterns, and a judiciary closed to legal challenges
focusing on discriminatory impact rather than intentional discrimination. But Title VI
enforcement has experienced a resurgence, with strategies that seek to use the law as a
basic compliance tool across the range of federally assisted programs. This resurgence
reflects an enduring commitment to more equitable outcomes in federally funded
programs that bear directly on community health, and it stands as a testament to the
vital importance of a legal framework designed to move the nation toward greater
Keywords health equity, Civil Rights Act, Title VI
Enacted as part of the watershed Civil Rights Act of 1964, Title VI prohibits
discrimination on the basis of race, color, or national origin by both public
and private entities that receive federal financial assistance. The aim of
Title VI, a core part of a legal landmark in American history (Purdum
2014), is no less than to ensure that the vast machinery of federal social
Journal of Health Politics, Policy and Law, Vol. 42, No. 5, October 2017
DOI 10.1215/03616878-3940423 � 2017 by Duke University Press
Journal of Health Politics, Policy and Law
Published by Duke University Press
welfare funding is used to reduce segregation and discrimination in all its
forms, not enable it. As such, Title VI functions as a major policy lever for
achieving fundamental change in the nation’s social fabric. This over-
arching goal is to be accomplished through the establishment of formal,
regulatory expectations on the part of the federal government not only that
certain types of practices will cease but also that recipients of federal
financial assistance will take affirmative steps to ensure that they admin-
ister their programs and services in a manner that promotes equality.
Implicit in Title VI at the time of enactment was a further expectation that
government efforts to end discrimination in federally funded programs and
activities would be supplemented through private enforcement efforts;
but a generation of shifting sands in judicial philosophy has consider-
ably narrowed government’s ability to rely on private enforcement efforts,
thereby magnifying its own role in shaping Title VI as a legal framework
for health equity.
Title VI was enacted at a time when legal segregation was still the norm
in major sections of the nation. As racial segregation laws disappeared, the
government interest in enforcement waned, although recent governmen-
tal use of the law as an instrument of change has regained considerable
momentum. How to adapt a law such as Title VI to modern circumstances,
however, emerges as a major issue. Like other civil rights laws grounded
in the goal of racial justice, Title VI today confronts what perhaps might
be characterized as a more pernicious problem: the residential segrega-
tion that affects minority Americans and is so closely associated with
health inequity (Williams and Braboy Jackson 2005). Under such cir-
cumstances, the crucial legal question is the disparate racial impact of
seemingly neutral laws. As a tool for addressing this form of discrimi-
nation, Title VI faces two basic challenges: problems of proof and the
challenge of fashioning legal remedies that themselves do not cross racially
impermissible lines under current judicial doctrine (i.e., quotas), while still
addressing the racial effects of policies that produce a discriminatory
impact. Nonetheless, Title VI represents a seminal achievement in the
effort to reset the social compact, one whose terms remain highly relevant
to today’s challenges. To dwell simply on challenges of implementation
and enforcement would be to miss the forest among the trees.
The Origins and Evolution of Title VI
As a central element of the 1964 Civil Rights Act, Title VI was a crowning
achievement of the civil rights era that spanned from World War II through
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the 1960s, and health and health care figured prominently in its creation.
Title VI was designed to serve a core purpose: to end discrimination based
on race, color, or national origin within programs that receive “federal
financial assistance.”1 Unlike Title II of the Act, which reaches purely
private conduct by enterprises engaged in commerce (such as hotels,
restaurants, movie theaters, and other places of public accommodation),
Title VI rests on Congress’s power — indeed, its constitutional duty as
viewed by some legal observers and courts — to ensure that federal funding
is not spent on private entities that discriminate (Abernathy 1981).
Title VI became law at a time when the desegregation of schools and
other public services was a major focus of civil rights concern. Its under-
lying rationale rested in significant part on a decision by the United States
Court of Appeals for the Fourth Circuit in Simkins v. Moses H. Cone
Memorial Hospital (323 F.2d 959 [4th Cir. 1963] [en banc], cert. den., 376
U.S. 938 ). Simkins, which involved the denial of admitting privi-
leges to black physicians and the admission of black patients by a hospital
built with Hill-Burton funding, was an outgrowth of what David Barton
Smith has termed ‘The North Carolina Campaign,’ a pivotal chapter in the
history of the civil rights movement (Smith 1999). The Simkins decision
emphasized the constitutional basis for barring the flow of federal funds to
public or private entities that discriminated.
Indeed, revulsion over discriminatory practices in health care — what
Martin Luther King Jr. termed one of the most “shocking and inhumane”
aspects of racism — figured strongly in the Senate floor debate over pas-
sage (Smith 1999). At the time of enactment, the precise number of fed-
erally assisted health actors was not known with any degree of certainty
(Abernathy 1981), although by 1963, when Simkins was decided, over 104
racially segregated hospitals had been built, the great majority of which
were for whites only (Byrd and Clayton 2001). (As an aside, it is worth
recalling that only one year later, the Johnson administration struck an
agreement with the Senate — never codified in statute — to exempt phy-
sicians treating Medicare patients from Title VI [Smith 1999]. This
agreement ostensibly rested on Medicare’s original structure as indemnity
insurance whose funds did not directly flow to physicians but instead were
transferred to beneficiaries in repayment for the services they purchased.
1. The regulations define “federal financial assistance” to include: “(1) grants and loans of
federal funds, (2) the grant or donation of federal property and interests in property, (3) the detail
of federal personnel, (4) the sale and lease of, and permission to use, federal property or interest in
such property without consideration or at a nominal consideration, and (5) any federal agreement,
arrangement, or other contract which has as one of its purposes the provision of assistance.” 45
C.F.R. x 80.13(f).
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Today, most private physicians directly participate in one or more federal
health care programs, which under x 1557 of the Affordable Care Act are
now defined to encompass both insured and administered products offered
by insurers that participate in federal programs.)
By its express statutory terms, Title VI prohibits acts of intentional
discrimination by “any program or activity receiving federal financial
assistance” (42 U.S.C.x2000d). But the earliest implementing regulations,
which remain in force today, go further, extending the law’s prohibitions to
conduct and practices that have the effect of discriminating. For example,
regulations originally issued by the United States Department of Health,
Education and Welfare following enactment — part of the government-
wide rules that remain applicable today and touch virtually every form of
federal financial assistance — outlaw “criteria or methods of administra-
tion which have the effect of subjecting individuals to discrimination on
the basis of their race, color, or national origin,” as well as practices that
have “the effect of defeating or substantially impairing accomplishment of
the objectives of the program [with] respect [to] individuals of a particular
race, color, or national origin” (45 C.F.R. x 80.3[b]). Thus, Title VI
rules, which endure today, establish two types of prohibited discrimina-
tion: (1) intentional discrimination, as measured by evidence pointing to a
specific intent to exclude or segregate; and (2) policies or practices that
may be facially neutral but discriminatory in impact (Perez 2002). Over
the five decades of Title VI’s existence, Congress has not refuted this far-
Title VI’s prohibitions apply to any form of federal financial assis-
tance, including grants, loans or contracts, other than “contracts of insur-
ance or guarantee,” which as x 1557 of the Affordable Care Act makes
clear, do not include private health insurance coverage sold by entities
that receive federal funding. Title VI also sweeps broadly in terms of the
activities subject to its provisions, covering public and private actors alike.
The statute defines the term program or activity to encompass all of the
operations of state and local agencies receiving federal funding, govern-
mental entities that distribute federal funds, colleges and universities, and
private corporations or organizations engaged in education, health care,
housing, or social services, or parks and recreation (42 U.S.C.x2000d-4a).
In other words, the receipt of federal funding by a governmental or private
entity, or any part thereof, triggers a duty not to discriminate.
Title VI is, of course, a law and, by their very nature, laws can cast what
many might prefer to think of as broader social matters in an uncomfortable
light, opening up policies and practices to legal scrutiny, sanctions, and
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remedies for conduct and practices considered to come within their ambit.
In no case is the desire to define a problem other than in legal terms more
powerful than in the area of race discrimination: who possibly would want
to equate regrettable social conditions with the legal concept of discrimi-
nation, particularly if no one is able to identify an overt legal practice (such
as an ordinance that mandates segregation by race) that drives such results?
Not surprisingly, therefore, despite the underlying intent of Title VI, as
legal segregation laws disappeared, so too the appetite for framing issues as
discrimination inevitably diminished. Policies and practices that might, in
fact, be contributing to racially identifiable results have been viewed as a
problem that lay outside the purview of civil rights law. The concept of
“disparities,” used by minority health researchers to define the racially
measurable impact of policies and practices, proved to be an easier way to
maintain a discourse about race and society with those who would change
the subject away from discrimination, conveniently overlooking the fact
that Title VI was intended to reach both acts of deliberate segregation as
well as practices that produced such effects. Indeed, the rise of disparities
research, rather than propelling efforts to adapt Title VI to more modern
conditions, may have provided a softer lens through which to view policies
and practices that, in legal terms, would have been expressed as discrim-
inatory in effect. For example, the failure of a hospital’s surgeons to par-
ticipate in Medicaid — disproportionately relied on by racial and ethnic
minority groups — might produce disparities in terms of who has access
to advanced surgical treatment. At the same time, a policy that extends
admitting privileges to surgeons that refuse to participate in Medicaid
might also be thought of as one that is discriminatory in effect.
By the early 1980s, Title VI enforcement already had been severely
reduced. As David Barton Smith explains, the creation of an Office for
Civil Rights within the United States Department of Health, Education and
Welfare (later renamed Health and Human Services, or HHS) by the Nixon
administration was actually an effort to separate civil rights enforcement
from any direct connection to program operations and isolate it into a small,
underfunded entity with no real powers (Smith 1999). Rather than ele-
vating the cause, the establishment of a civil rights office was understood as
designed to achieve precisely the opposite result (Smith 1999). The impact
of this decision reverberated over decades. Civil rights enforcement staff
disappeared, as did the office’s budget, which lacked any separate funding
for enforcement efforts (Rosenbaum and Teitelbaum 2003).
This governmental effort to move away from defining problems as ones
covered by the broad reach of Title VI could be seen in the 1985 Report of
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the Secretary’s Task Force on Black and Minority Health. Commissioned
by the Reagan administration, the Report produced an extensive statistical
compilation focusing on the excess rates of death and disability among
racial and ethnic minorities. But as important as it was in advancing public
understanding of the elevated risk of poor health and death among minority
populations, the 1985 report also diverted the discussion away from a civil
rights lens, presumably in order to make its findings more politically pal-
atable. The Secretary’s Task Force was chaired not by the director of the
HHS Office for Civil Rights (who served as a member), but instead by a
distinguished government health researcher (Dr. Thomas E. Malone). The
Report contained no chapter on the status or potential relevance of civil
rights enforcement; indeed, the Report contained no real discussion of the
possible link between disparities on the one hand and the reach of Title VI
into problems of disparate impact on the other. Instead, the Report tended
to focus on chronicling racial differences rather than finding root causes
of inequality. The Report offered recommendations for training more
minority health professionals and for better health education for minority
communities. But it was fundamentally devoid of an agenda for addressing
discriminatory effects associated with facially neutral policies and prac-
tices, such as provider participation in public insurance programs, lan-
guage barriers to health and social services, the siting and location of care,
and the segregation of patients by payer source, which may have lacked any
underlying discriminatory intent but nonetheless produced effects that
disproportionately advantaged racially identifiable groups.
It would take many years for civil rights advocates to connect the find-
ings from disparities research to the question of Title VI civil rights
enforcement. The seminal Institute of Medicine study, Unequal Treatment,
did a great deal to reframe research into health disparities as a source of
evidence regarding racial inequality rather than mere racial differences.
From this study has flowed something of a resurgence of governmental
efforts to devise remedies that are grounded in concepts of overcoming
inequality, which lies at the heart of Title VI, in order to address institu-
tional policies and practices that have a discriminatory effect as well as
those with discriminatory purpose. Chief among this reestablished link
have been landmark policies, first introduced in 2000 under the Clinton
administration, modified somewhat by the George W. Bush administra-
tion, and expanded under the Obama administration, to use the results of
health disparities research as a means for establishing language access as
a basic compliance requirement for federally assisted entities, ranging
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from health care programs to other programs receiving federal financial
assistance and designed to address the broad range of social conditions that
Title VI: Covering the Breadth of Health Equity
Although health scholars often focus on the role of Title VI in the context of
health care, Title VI has a panoramic scope, as broad as the range of
federally assisted programs that bear on health equity. In both govern-
ment enforcement and in efforts by private litigants to directly enforce its
guarantees, the emphasis naturally has been on the regulations’ effects test;
that is, on policies and practices that appear to be associated with racially
unequal results. This more modern use of Title VI offers insight into the
comprehensive nature of the law’s reach (Abernathy 2006).
Despite the context in which they arise, Title VI cases tend to focus on
specific types of conduct: criteria or practices that make certain people less
likely to qualify for assistance; practices that cause certain eligible persons
to receive a lesser amount of assistance; practices that cause people to
receive services of lower quality or in segregated settings; and practices
that diminish or impair the value of the service. Furthermore, because Title
VI applies government-wide, enforcement cases touch on virtually every
federally assisted program or activity that bears on the health and well-
being of the population, from education to mass transit, housing, child
welfare, health care, and environmental health (Abernathy 2006; Edson
2004; Johnson 2014; Mank 2007; Yan 2013). As federal financial assis-
tance has permeated the social fabric, so has the reach of Title VI.
As discussed at greater length below, in 2000 the United States Supreme
Court ended the ability of private individuals to sue to enforce Title VI
disparate impact standards. Prior to that point, private litigation strategies
were frequently part of Title VI enforcement efforts. Some cases prevailed
in court, others lost. More importantly, the filing of a case by private indi-
viduals served as a sort of strategic lever, encouraging plaintiff groups and
public officials to negotiate solutions that could alleviate the discrimina-
tory effects of policies and practices. Private litigation as an enforcement
technique was used across many different social welfare spheres.
Beyond siting services, challenges have involved the use of eligibility or
placement criteria that segregate racial minorities, or that deprive them of
the value of the service or result in services of lower quality. In education,
numerous claims have challenged the use of isolated IQ tests and other
student placement tools that result in the concentration of minority children
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in programs and classrooms designed for those with limited intellectual
ability (Abernathy 2006). Title VI also has been used to challenge nursing
facility admissions practices that group all Medicaid beneficiaries in one
wing of an institution, thereby effectively segregating black patients who
disproportionately rely on Medicaid (Rosenbaum and Frankford 2012).
Title VI cases also have tested the impact of seemingly neutral program
decisions to take a more expedient or less costly approach to a problem,
such as condemning the land on which community gardens are flourishing
in order to build new community housing, as opposed to acquiring other
land at a somewhat higher cost that would leave community gardens intact
(Abernathy 2006). The effects test cases also have involved practices or
policies that appear facially neutral but that work to disfavor minority
program beneficiaries, such as a decision by a public housing authority
to give priority to rehabilitation services for homeowners as opposed to
renters (Abernathy 2006). Title VI challenges also have tested the dis-
criminatory effects of disciplinary actions by recipients of federal funding,
such as school discipline (Johnson 2014), and actions by health care pro-
viders operating programs to treat substance use disorders and that report
one group of patients to law enforcement (black pregnant patients exposed
to crack cocaine), while not reporting other patients (white pregnant
patients exposed to alcohol) (Ferguson v. City of Charleston, South
Carolina, 186 F.3d 469 [4th Cir. 1999]).
Transit planning has received particular Title VI attention because of
unusually creative advocacy work in the face of the extraordinary impact
on minority communities that flows from the absence of public transit
(Johnson 2014). Title VI cases have focused on the decisions by local and
state transit authorities to upgrade transit options (such as fast airport rail
service) used predominantly by white riders while relegating minority
communities to limited and unreliable forms of transportation (Yan 2013).
Most recently, residents of Baltimore challenged the governor’s decision to
divert transportation funding away from urban mass transit improvements
in favor of highway investment (Complaint, Baltimore Regional Initiative
Developing Genuine Equality, Inc. v. State of Maryland, et al., DOT No.
Title VI challenges have ebbed and flowed in their success. Since its
inception, courts have accorded the statute an “an ancillary, but not co-
equal, role in enforcing national antidiscrimination policy,” waffling
on whether Title VI should have a more or less stringent standard for
discrimination than the Constitution (Abernathy 1981: 14). Challenges
involving disparate treatment generally have more favorable outcomes for
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the plaintiffs because, where it can be proven that the defendant has
plainly discriminatory motives, the matter not only clearly violates Title
VI, but also the Constitution. The early Title VI school segregation cases
provide examples of such obvious discriminatory behavior. Conversely,
challenges alleging discriminatory impact have fared less well with federal
courts since the statutory language does not define “discrimination” and
much deference is given to agency guidance and findings on the matter.
Challenges alleging discriminatory effects on the environment or transi-
tory impacts have tended to have less successful outcomes for plaintiffs,
because of the unwillingness on the part of the courts to develop complex
remedies other than those created by an enforcement agency itself.
The Complexity of Title VI as a Tool
to Achieve Health Equity
All legal actions are difficult; for several reasons, using Title VI may
be especially complicated. The first reason might be thought of as one
of framing. For perfectly understandable reasons, there is a resistance to
labeling a particular policy or practice as one that may place it within the
legal lexicon of a statute whose purpose is to address discrimination on the
basis of race or national origin, especially practices and conduct that are
seemingly neutral but that produce discriminatory effects. Policies that hurt
the poor may be repugnant on many grounds, but should they be considered
discriminatory because the poor are more likely to be members of racial or
ethnic minority groups? Resistance to such characterization is inevitable,
particularly in a nation whose very existence rests on the original sin of
racism and classification and segregation based on race. If investing transit
funds in commuter trains from the suburbs rather than subways in the inner
city is viewed simply as government choice regarding resource allocation
with adverse fallout on the poor, this essentially sidesteps the question of
whether federally assisted entities should be viewed as having a duty to
avoid such fallout when the poor are, in fact, racially identifiable. Many
might prefer to address the solution as one of fairer economic investment
rather than as one grounded in racial justice owing to generations of
practices that have produced racially identifiable outcomes where income
and wealth are concerned.
A second problem relates to the challenges of proving a claim and
answering defenses. To show disparate impact, a challenger must dem-
onstrate a nexus between a particular policy and racially identifiable
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effects. For example, requiring all nursing home residents covered by
Medicaid to be housed in a separate wing may be repugnant social policy,
but it becomes a Title VI matter only if it can be shown that Medicaid
patients are disproportionately African American. But what happens when
no data on the race of Medicaid patients are available? Federal programs
require recipients of assistance to maintain substantial racial data on those
who receive benefits, but certain situations may be more subtle, such as
particular settings in which patients are seen (a private physician’s office
rather than a specialty residency rotation clinic), or a first-come-first-serve
policy for obtaining certain benefits in communities in which it is harder for
certain racially distinct groups of residents to either understand the policy
or arrive early.
Furthermore, it may be necessary to show that the observed racial results
rest on other, equally plausible explanations. For example, in health care,
simply showing that minority cancer patients receive less advanced cancer
treatments is not sufficient. The challenger also would have to demon-
strate that minority patients are not offered certain choices and that, when
given equal choice, minority patients are equally as likely to prefer more
advanced care. While simulation studies conducted by researchers have, in
fact, shown racial bias in diagnosing and treating patients (Schulman et al.
1999), this is not the same as proving in a judicial or administrative setting
that a particular policy maintained by a particular health care institution
resulted in less equitable treatment. In other words, law is quite specific,
and a finding of discriminatory practices cannot rest on simulations
(although simulation experiments certainly may be relevant in helping
explain institutional behavior). That is to say, the presence of statistical
disparities alone do not show that a policy or practice had a discriminatory
effect. This does not mean that intentional discrimination must be proved,
but it does mean that a challenger would need to draw a link between the
statistical evidence and an actual policy or practice. Proof of this nature is
time consuming and costly.
Additionally, a showing of discrimination may not be sufficient. There
are defenses such as the necessity of certain policies even if they do have a
discriminatory impact. Steps to mitigate the impact of such policies might
be ordered, but the policies may survive essentially intact. For example,
stopping a hospital from leaving a poor, heavily minority community and
relocating to a more affluent service area is virtually impossible, even
though federal regulations governing the application of Title VI to health
care explicitly offer the example of hospital siting practices as one that may
fall within the purview of the law. A court might order the hospital to open a
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satellite clinic in a poor neighborhood as well as free shuttle services to its
main campus, but the hospital relocation itself moves forward (Rosenbaum
and Frankford 2012).
A third problem relates to remedies: How far should the courts go in
second-guessing the decisions of program administrators regarding resource
allocation in the case of programs that are often seriously underfinanced
and on a daily basis demand difficult decisions about priorities; and if
imbalances are found, how far can the courts or agencies go in imposing
affirmative balancing remedies?
The history of the Title VI effects test, not found in the statute but
established by regulation, has been fraught with challenges. In Lau v.
Nichols (414 U.S. 563 ), a unanimous Supreme Court held that a
recipient of federal financial assistance could be liable under the terms of
Title VI (if not the Constitution itself) for practices that discriminated
within the meaning of Act, in this case, the lack of language-accessible
programs for San Francisco public school children of Asian descent. The
lower court had rejected the children’s claims, finding that their poverty,
not actions on the part of the school system, was at fault. Reversing, the
Court based its rulings on federal Title VI rules applicable to schools,
which utilized an effects test and required educational programs to take
affirmative steps to help students overcome language barriers. In this case,
the San Francisco school system’s failure to affirmatively help children
overcome their language barriers violated the rules and “effectively fore-
closed” such students from “any meaningful education” (Lau, 414 U.S.,
p. 566.). Lau represented the “high-water mark” in terms of the willing-
ness of the judiciary to halt practices that, even if not intentional and
thereby a direct violation of the Constitution, could be shown to have a
discriminatory impact (Abernathy 1981: 17).
But the limits of Title VI from the Court’s perspective became evident in
Regents of the University of California v. Bakke (438 U.S. 265 ),
which involved the use of affirmative action tools by the University of
California (specifically, racial quotas) to weigh medical school admis-
sion decisions. While Bakke did not overturn Lau, it signaled the Court’s
willingness to impose significant limits on the reach of Title VI’s remedial
powers beyond its basic constitutional underpinning of outlawing inten-
tional segregation and discrimination by race. In so doing, the Court sig-
naled a sharp constraint on the ability of federally assisted entities to
devise remedies, in this case, quantifiable, to address race-specific mea-
sures of inclusiveness that exceeded constitutional constraints under the
Fourteenth Amendment (Abernathy 1981; Johnson 2014). This question
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of how far government can go to remedy the past effects of discrimina-
tion in federally assisted programs, or to avert the possibility of racially
unequal results, continues to dominate civil rights law to the present.
Beyond the constitutional constraints on remedies that turn on affir-
mative efforts to achieve equity through the use of quantifiable targets, the
question of remedies under the Title VI effects test raises other issues. One
review of Title VI cases concludes that, in the main, agencies and judges
appreciate the difficult balancing decisions that go into the operation of fed-
erally assisted programs (Abernathy 2006). As a result, business necessity
constitutes a recognized defense under Title VI (Watson 1990), and in
reviewing the legality of agency practices, courts will look to their rea-
sonableness, a standard of review substantially lower than the compelling
interest standard needed to justify practices found to amount to intentional
discrimination (Abernathy 2006). It is hard, in other words, to convince a
court or an agency that a particular decision affecting programs and ser-
vices operated for a large and diverse population must be reversed or
modified based on evidence of impact on a subset, although it is by no
means impossible, as is illustrated by numerous cases involving negotiated
settlements softening or modifying policies and practices shown to have a
disparate impact on minority populations (Johnson 2014; Rubin-Wills
2012; Yan 2013). For example, in hospital siting cases, settlements have
involved the establishment of satellite services in communities losing
access to the main hospital facility (Rosenbaum and Frankford 2012).
Similarly, in transit cases, advocates have achieved significant modifica-
tions in regional transportation plans to ensure a more reasonable level of
investment in minority communities (Johnson 2014; Yan 2013).
Finally is the question of who has the right to enforce Title VI’s dispa-
rate impact prohibitions. Unlike Title VII of the 1964 Civil Rights Act,
which bars discrimination on prohibited grounds in the case of employ-
ment, Title VI contains no express right to relief in the courts, a crucial issue
in modern jurisprudence (Rosenbaum and Frankford 2012). In Bakke,
which arose under Title VI and dates back to a time when the courts were
less strict about clear evidence regarding the right of private individu-
als to seek judicial intervention under “implied right of action” theory,
the United States Supreme Court essentially assumed such a right. But
in Alexander v. Sandoval (532 U.S. 275 ), a case in which private
litigants challenged Alabama’s policy of English-only drivers’ license
tests, the Court foreclosed private judicial actions to enforce the fed-
eral effects test rule, limiting access to the courts to claims of inten-
tional discrimination brought directly under the statute (Abernathy 2006;
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Harvard 2001; Johnson 2014; Perez 2002; Rosenbaum and Teitelbaum
2003). At least one scholar has argued that, in a health care context, the
ACA’s extension of Title VI protections to new insurance markets may
restore a private right of action for violations of the Title VI disparate
impact rules (Steege 2011). But this theory has not yet been tested. As
one might imagine, the Sandoval decision was an enormous blow to
private enforcement efforts under Title VI, made all the more necessary
by under-resourced federal enforcement agencies hobbled in their work
by the politics of discrimination oversight. Since the major thrust of
efforts to use Title VI to secure more equitable treatment entailed reli-
ance on disparate impact theory, the loss of access to the courts has posed
In fact, however, Sandoval also helped trigger a flowering of other
strategies, including an increase in the use of federal administrative com-
plaints by private individuals, and more importantly perhaps, efforts by
government itself to build tests of equity into federal financial assistance
through the use of clear, measurable, and prospective compliance stan-
dards embedded directly into regulatory standards. Indeed, one could
argue that Sandoval effectively caused the federal agencies to do what they
were supposed to do in the beginning, namely, make equitable conduct an
explicit part of the operation of federally assisted programs. The HHS
language access standards offer a crucial illustration of clear and mea-
surable standards that are designed to act as a standard of Title VI com-
pliance for federally assisted entities. Other examples are efforts by federal
agencies to effectively make equity planning and civil rights impact ana-
lyses core elements of the operation of federally assisted entities (Edson
2004; Johnson 2014; Yan 2013).
It is possible to think of Title VI as a holdover from a bygone era, when the
pressing focus was on ending intentional discrimination by race. But that
would be wrong. Title VI is far broader in its scope, the result of an early
decision to interpret its reach liberally, followed by decades of private
enforcement and, increasingly, more meaningful efforts on the part of
the federal government itself, pressed into action by the end of private
enforcement rights and the unceasing efforts of advocates and civil rights
scholars. Today, it is expected that with participation in federal programs
will come principles of non-discrimination in practice, embedded as a
condition of program participation. In this regard, over its life, Title VI has
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emerged as an essential policy lever in the quest to bring fairness and equity
to federally assisted programs. To be sure, much work remains, whether in
mass transit, public housing, health care, education, parks and recreation,
or other life endeavors that touch on the health and well-being of society.
Although specific racial quotas are not possible, standards of fair treatment
and equity-conscious planning are.
Two questions emerge from this analysis. The first is whether Title VI
should be strengthened in the area of disparate impact enforcement. The
second is what that strengthening might look like.
To answer the first question, one must ask whether it is still worthwhile
to define certain problems in terms of race or national origin. Would we
be better off focusing on economic inequality as the root cause of health
inequity and moving away from a race discrimination framework instead,
given the emotional fallout that can arise when one defines problems in
terms of race? Put in the vernacular, with legal segregation behind us, is the
juice not worth the squeeze in the case of Title VI?
The answer to the question of whether it is still important to use federal
funding as a lever for achieving greater equity on racial grounds must be
yes. To be sure, intentional, legal segregation has disappeared from the
scene of publicly funded programs and services. But as long as policies
produce racially identifiable results, it is vital to a nation with a racial his-
tory such as ours that the racial questions get asked even when income
inequality plays a powerful role. This can most clearly be seen in the
national dialogue that ensued in the wake of studies showing racially
distinct outcomes in health care even when controlling for income and
The power of knowing that race matters when formulating and enforcing
policy in federally assisted programs is vividly evident in the tragedy of
police-involved shootings in minority communities. It is Title VI that, in
great part, has provided the legal leverage for the oversight of community
policing policies and for altering the practices of police departments.
Indeed, what made the Dallas 2016 police shooting especially painful was
the fact that Dallas was recognized for the degree to which, over two
generations, policing practices had been transformed. Title VI offers a
policy lever over the vast array of policies that affect community health,
because it travels wherever federal funding flows. The fact that police
departments are subject to ongoing oversight may help the nation weather
such terrible crises. In the current climate, we need a law that focuses on
racial justice, because the nation still focuses on race, because people who
are members of historically disadvantaged racial and ethnic minority
groups continue to disproportionately feel the adverse effects of social and
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economic policy choices, and because what was true over fifty years ago is
true today: public and private entities that accept public funding should be
expected not merely to not discriminate on the basis of race but also to be
actively involved in adapting programs and services in ways that achieve
The second question is how, if Title VI remains powerful and relevant, its
implementation might change to enable the law to better achieve its goals.
One step would be to restore the private right of action to challenge
practices and policies that are facially neutral but appear to have a racially
measurable disproportionate impact. In the wake of the election of Donald
Trump as president and the capture of both houses of Congress by
Republicans, such a solution to the Sandoval problem is probably unlikely
in the extreme. Of course, it is possible that judicial doctrine will evolve on
its own, and that the United States Supreme Court will do an about-face on
the question of whether private enforcement rights must be explicitly
stated in law. This shift in jurisprudence is undoubtedly equally unlikely,
particularly if a Republican president and Congress shift the Court fur-
ther to the right. Thus, the use of Title VI by private parties in a judicial
enforcement context is now precluded, at least where the problem of
de facto discrimination is concerned; all eyes, instead, turn to government
Here, even in a Trump administration, one might expect civil rights
advocates to remain vigilant, placing administrative complaints before the
federal agencies and the United States Justice Department on a range of
issues. How rapidly and thoroughly these complaints will be acted on
cannot be known, but the process of administrative advocacy remains very
much alive. What probably will suffer in the coming years is the existence
of a strong, government-initiated civil rights enforcement effort within the
administration itself. As this article makes clear, even in times more con-
ducive to framing issues as a civil rights matter, the executive branch has
been relatively lethargic in its response to problems, with limited system
monitoring and limited individual enforcement actions. Congress has been
a significant part of this problem, refusing to fund civil rights enforcement
in reasonable amounts.
Title VI enforcement agencies need budgets to collect data and com-
mission research and analysis. They need staff. And they need to be an
integral part of policy and programmatic development, not a mere com-
menter on regulations that already have been drafted. Title VI enforcement
is not an add-on to federal program rules; it is part of the DNA of federal
social programs. Just as a state housing agency does not qualify for federal
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funding if it fails to follow proper accounting practices, the agency loses its
eligibility for federal assistance if its policies and practices violate the
terms of Title VI and other fair housing laws.
In recent years the Obama administration, as noted, has made civil
rights-related planning and resource allocation decisions a core element of
its program oversight efforts. Expanding on these efforts means increasing
the resources available for civil rights enforcement so that agencies can
commission the empirical research studies needed to develop policies of
general applicability that regulate grantee conduct, funding to collect the
data needed to ensure compliance and test the effectiveness of policies in
reducing disparate outcomes, and, of course, funding to properly investi-
gate and enforce such policies when potential violations are reported. It is
not enough for an agency to ask that a recipient sign a general Title VI
compliance agreement and then simply reflect on what types of conduct
and practices merit further investigation. As with the language access
policies, recipients of federal funding need general directives and operating
rules and the certainty of knowing that, if they comply with such rules, they
will not be subject to further investigation. To function properly, civil rights
compliance needs to be simply part of the process of policy development
and program oversight. The Obama administration has taken steps in this
direction, but it seems unlikely that the Trump administration will con-
tinue these practices. Indeed, early signals — from calls for retrenchment
in public insurance financing under the Affordable Care Act to propos-
als that seek to dismantle public education rather than invest in it — are not
promising, to put it mildly.
For this reason, research remains crucial. The research enterprise, if
anything, grows more critical when government investment in civil rights
enforcement wanes. Of particular importance is research that does not
simply document racial and ethnic differences in access, quality, and out-
comes, but that attempts to shed light on factors that may underlie problems,
even when those factors involve asking uncomfortable questions. When
researching disparities, it is valuable to examine patient preference, com-
munity culture, and individual value and belief systems. But it is equally
important — and undoubtedly harder — to ask institutions questions about
their own preferences, their own culture, and their own value and belief
systems, as embodied in their policies and practices.
But there is a paradox here. Research designed to get at the policy
underpinnings of disparities patterns is closely associated with enforce-
ment. This means that not only is such work costly, complex, and time
consuming, but it is also the result of direct funding by government
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agencies that seek answers in a civil rights context in order to better
understand the potential for discriminatory effects that may result from
the implementation of federal programs and policies. This type of deeper
research can be expected to wither in an era of government disfavor of
civil rights enforcement. In this case, the role of private funders — and of
agencies and institutions that themselves that seek to more clearly under-
stand the impact of their own policies and practices on the people and
communities they serve — becomes paramount.
n n n
Sara Rosenbaum is the Harold and Jane Hirsh professor and founding chair,
Department of Health Policy, Milken Institute School of Public Health, George
Washington University. She has provided public service to six presidential adminis-
trations and twenty-one Congresses, and is known for her work on the expansion
of Medicaid, the expansion of community health centers, patients’ rights in managed
care, civil rights and health care, and national health reform. She is the lead author
of Law and the American Health Care System, 2nd ed. (Foundation Press, 2012), a
landmark textbook that explores in depth the interaction of American law and the
US health care system.
Sara Schmucker is a senior research associate in the Department of Health Policy
and Management at the Milken Institute School of Public Health, George Washing-
ton University. She received her Juris Doctor degree from the George Washington
University School of Law.
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Defining ‘Discrimination.’” Georgetown Law Journal 70, no. 1: 1–49.
Abernathy, Charles F. 2006. Civil Rights and Constitutional Litigation: Cases and
Materials. St. Paul, MN: Thomson/West.
Byrd, W. Michael, and Linda A. Clayton. 2001. “Race, Medicine, and Health Care in
the United States: A Historical Survey.” Journal of the National Medical Asso-
ciation 93, no. 3 suppl.: 11S–34S.
Edson, Scott Michael. 2004. “Title VI or Bust? A Practical Evaluation of Title VI of
the 1964 Civil Rights Act As an Environmental Justice Remedy.” Fordham
Environmental Law Review 16, no. 1: 141–79.
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Harvard Law Review Association. 2001. “Leading Cases; B. Civil Rights Act,”
Harvard Law Review 115: 497.
Johnson, Olatunde C. A. 2014. “Lawyering That Has No Name: Title VI and the
Meaning of Private Enforcement.” Stanford Law Review 66, no. 6: 1293–1332.
Mank, Bradford. 2007. “Title VI and the Warren County Protests.” Golden Gate
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in Health Status.” In Unequal Treatment: Confronting Racial and Ethnic Dis-
parities in Health Care, edited by Brian D. Smedley, Adrienne Y. Stith, and Alan
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System. New York: Foundation.
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Modern Healthcare System: Reinvigorating the Role of the Federal Government in
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ReferencesCivil Rights Act of 1964. (2017). Civil Rights Act of 1964, 1.
Civil Rights Act of 1964
U.S. Statutes at Large, Public Law 88-352, p. 241-268
To enforce the constitutional right to vote, to confer jurisdiction upon the district courts of the United States to provide injunctive relief against discrimination in public accommodations, to authorize the Attorney General to institute suits to protect constitutional rights in public facilities and public education, to extend the Commission on Civil Rights, to prevent discrimination in federally assisted programs, to establish a Commission on Equal Employment Opportunity, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act maybe cited as the “Civil Rights Act of 1964”.
TITLE I — VOTING RIGHTS
Sec. 101. Section 2004 of the Revised Statutes (42 U.S.C. 1971), as amended by section 131 of the Civil Rights Act of 1957 (71 Stat. 637), and as further amended by section 601 of the Civil Rights Act of 1960 (74 Stat. 90), is further amended as follows:
(a) Insert “1” after “(a)” in subsection (a) and add at the end of subsection (a) the following new paragraphs:
“(2) No person acting under color of law shall —
“(A) in determining whether any individual is qualified under State law or laws to vote in any Federal election, apply any standard, practice, or procedure different from the standards, practices, or procedures applied under such law or laws to other individuals within the same county, parish, or similar political subdivision who have been found by State officials to be qualified to vote;
“(B) deny the right of any individual to vote in any Federal election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election; or
“(C) employ any literacy test as a qualification for voting in any Federal election unless (i) such test is administered to each individual and is conducted wholly in writing, and (ii) a certified copy of the test and of the answers given by the individual is furnished to him within twenty-five days of the submission of his request made within the period of time during which records and papers are required to be retained and preserved pursuant to title III of the Civil Rights Act of 1960 (42 U.S.C. 1974 — 74e; 74 Stat. 88): Provided, however, That the Attorney General may enter into agreements with appropriate State or local authorities that preparation, conduct, and maintenance of such tests in accordance with the provisions of applicable State or local law, including such special provisions as are necessary in the preparation, conduct, and maintenance of such tests for persons who are blind or otherwise physically handicapped, meet the purposes of this subparagraph and constitute compliance therewith.
“(3) For purposes of this subsection —
“(A) the term ‘vote’ shall have the same meaning as in subsection (e) of this section;
“(B) the phrase ‘literacy test’ includes any test of the ability to read, write, understand, or interpret any matter.”
(b) Insert immediately following the period at the end of the first sentence of subsection (c) the following new sentence: “If in any such proceeding literacy is a relevant fact there shall be a rebuttable presumption that any person who has not been adjudged an incompetent and who has completed the sixth grade in a public school in, or a private school accredited by, any State or territory, the District of Columbia, or the Commonwealth of Puerto Rico where instruction is carried on predominantly in the English language, possesses sufficient literacy, comprehension, and intelligence to vote in any Federal election.”
(c) Add the following subsection “(f)” and designate the present subsection “(f)” as subsection “(g)”:
“(f) When used in subsection (a) or (c) of this section, the words ‘Federal election’ shall mean any general, special, or primary election held solely or in part for the purpose of electing or selecting any candidate for the office of President, Vice President, presidential elector, Member of the Senate, or Member of the House of Representatives.”
(d) Add the following subsection “(h)”:
“(h) In any proceeding instituted by the United States in any district court of the United States under this section in which the Attorney General requests a finding of a pattern or practice of discrimination pursuant to subsection (e) of this section the Attorney General, at the time he files the complaint, or any defendant in the proceeding, within twenty days after service upon him of the complaint, may file with the clerk of such court a request that a court of three judges be convened to hear and determine the entire case. A copy of the request for a three-judge court shall be immediately furnished by such clerk to the chief judge of the circuit (or in his absence, the presiding circuit judge of the circuit) in which the case is pending. Upon receipt of the copy of such request it shall be the duty of the chief judge of the circuit or the presiding circuit judge, as the case may be, to designate immediately three judges in such circuit, of whom at least one shall be a circuit judge and another of whom shall be a district judge of the court in which the proceeding was instituted, to hear and determine such case, and it shall be the duty of the judges so designated to assign the case for hearing at the earliest practicable date, to participate in the hearing and determination thereof, and to cause the case to be in every way expedited. An appeal from the final judgment of such court will lie to the Supreme Court.
“In any proceeding brought under subsection (c) of this section to enforce subsection (b) of this section, or in the event neither the Attorney General nor any defendant files a request for a three-judge court in any proceeding authorized by this subsection, it shall be the duty of the chief judge of the district (or in his absence, the acting chief judge) in which the case is pending immediately to designate a judge in such district to hear and determine the case. In the event that no judge in the district is available to hear and determine the case, the chief judge of the district, or the acting chief judge, as the case may be, shall certify this fact to the chief judge of the circuit (or, in his absence, the acting chief judge) who shall then designate a district or circuit judge of the circuit to hear and determine the case.
“It shall be the duty of the judge designated pursuant to this section to assign the case for hearing at the earliest practicable date and to cause the case to be in every way expedited.”
TITLE II — INJUNCTIVE RELIEF AGAINST DISCRIMINATION IN PLACES OF PUBLIC ACCOMMODATION
Sec. 201. (a) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.
(b) Each of the following establishments which serves the public is a place of public accommodation within the meaning of this title if its operations affect commerce, or if discrimination or segregation by it is supported by State action:
(1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence;
(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or the facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station;
(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and
(4) any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishment.
(c) The operations of an establishment affect commerce within the meaning of this title if (1) it is one of the establishments described in paragraph (1) of subsection (b); (2) in the case of an establishment described in paragraph (2) of subsection (b), it serves or offers to serve interstate travelers or a substantial portion of the food which it serves, or gasoline or other products which it sells, has moved in commerce; (3) in the case of an establishment described in paragraph (3) of subsection (b) , it customarily presents films, performances, athletic teams, exhibitions, or other sources of entertainment which move in commerce; and (4) in the case of an establishment described in paragraph (4) of subsection (b), it is physically located within the premises of, or there is physically located within its premises, an establishment the operations of which affect commerce within the meaning of this subsection. For purposes of this section, “commerce” means travel, trade, traffic, commerce, transportation, or communication among the several States, or between the District of Columbia and any State, or between any foreign country or any territory or possession and any State or the District of Columbia, or between points in the same State but through any other State or the District of Columbia or a foreign country.
(d) Discrimination or segregation by an establishment is supported by State action within the meaning of this title if such discrimination or segregation (1) is carried on under color of any law, statute, ordinance, or regulation; or (2) is carried on under color of any custom or usage required or enforced by officials of the State or political subdivision thereof; or (3) is required by action of the State or political subdivision thereof.
(e) The provisions of this title shall not apply to a private club or other establishment not in fact open to the public, except to the extent that the facilities of such establishment are made available to the customers or patrons of an establishment within the scope of subsection (b).
Sec. 202. All persons shall be entitled to be free, at any establishment or place, from discrimination or segregation of any kind on the ground of race, color, religion, or national origin, if such discrimination or segregation is or purports to be required by any law, statute, ordinance, regulation, rule, or order of a State or any agency or political subdivision thereof.
Sec. 203. No person shall (a) withhold, deny, or attempt to withhold or deny, or deprive or attempt to deprive, any person of any right or privilege secured by section 201 or 202, or (b) intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person with the purpose of interfering with any right or privilege secured by section 201 or 202, or (c) punish or attempt to punish any person for exercising or attempting to exercise any right or privilege secured by section 201 or 202.
Sec. 204. (a) Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice prohibited by section 203, a civil action for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order, may be instituted by the person aggrieved and, upon timely application, the court may, in its discretion, permit the Attorney General to intervene in such civil action if he certifies that the case is of general public importance. Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the civil action without the payment of fees, costs, or security.
(b) In any action commenced pursuant to this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, and the United States shall be liable for costs the same as a private person.
(c) In the case of an alleged act or practice prohibited by this title which occurs in a State, or political subdivision of a State, which has a State or local law prohibiting such act or practice and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no civil action may be brought under subsection (a) before the expiration of thirty days after written notice of such alleged act or practice has been given to the appropriate State or local authority by registered mail or in person, provided that the court may stay proceedings in such civil action pending the termination of State or local enforcement proceedings.
(d) In the case of an alleged act or practice prohibited by this title which occurs in a State, or political subdivision of a State, which has no State or local law prohibiting such act or practice, a civil action may be brought under subsection (a): Provided, That the court may refer the matter to the Community Relations Service established by title X of this Act for as long as the court believes there is a reasonable possibility of obtaining voluntary compliance, but for not more than sixty days: Provided further, That upon expiration of such sixty-day period, the court may extend such period for an additional period, not to exceed a cumulative total of one hundred and twenty days, if it believes there then exists a reasonable possibility of securing voluntary compliance.
Sec. 205. The Service is authorized to make a full investigation of any complaint referred to it by the court under section 204(d) and may hold such hearings with respect thereto as may be necessary. The Service shall conduct any hearings with respect to any such complaint in executive session, and shall not release any testimony given therein except by agreement of all parties involved in the complaint with the permission of the court, and the Service shall endeavor to bring about a voluntary settlement between the parties.
Sec. 206. (a) Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this title, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described, the Attorney General may bring a civil action in the appropriate district court of the United States by filing with it a complaint (1) signed by him (or in his absence the Acting Attorney General), (2) setting forth facts pertaining to such pattern or practice, and (3) requesting such preventive relief, including an application for a permanent or temporary injunction, restraining order or other order against the person or persons responsible for such pattern or practice, as he deems necessary to insure the full enjoyment of the rights herein described.
(b) In any such proceeding the Attorney General may file with the clerk of such court a request that a court of three judges be convened to hear and determine the case. Such request by the Attorney General shall be accompanied by a certificate that, in his opinion, the case is of general public importance. A copy of the certificate and request for a three-judge court shall be immediately furnished by such clerk to the chief judge of the circuit (or in his absence, the presiding circuit judge of the circuit) in which the case is pending. Upon receipt of the copy of such request it shall be the duty of the chief judge of the circuit or the presiding circuit judge, as the case may be, to designate immediately three judges in such circuit, of whom at least one shall be a circuit judge and another of whom shall be a district judge of the court in which the proceeding was instituted, to hear and determine such case, and it shall be the duty of the judges so designated to assign the case for hearing at the earliest practicable date, to participate in the hearing and determination thereof, and to cause the case to be in every way expedited. An appeal from the final judgment of such court will lie to the Supreme Court.
In the event the Attorney General fails to file such a request in any such proceeding, it shall be the duty of the chief judge of the district (or in his absence, the acting chief judge) in which the case is pending immediately to designate a judge in such district to hear and determine the case. In the event that no judge in the district is available to hear and determine the case, the chief judge of the district, or the acting chief judge, as the case may be, shall certify this fact to the chief judge of the circuit (or in his absence, the acting chief judge) who shall then designate a district or circuit judge of the circuit to hear and determine the case.
It shall be the duty of the judge designated pursuant to this section to assign the case for hearing at the earliest practicable date and to cause the case to be in every way expedited.
Sec. 207. (a) The district courts of the United States shall have jurisdiction of proceedings instituted pursuant to this title and shall exercise the same without regard to whether the aggrieved party shall have exhausted any administrative or other remedies that may be provided by law.
(b) The remedies provided in this title shall be the exclusive means of enforcing the rights based on this title, but nothing in this title shall preclude any individual or any State or local agency from asserting any right based on any other Federal or State law not inconsistent with this title, including any statute or ordinance requiring nondiscrimination in public establishments or accommodations, or from pursuing any remedy, civil or criminal, which may be available for the vindication or enforcement of such right.
TITLE III — DESEGREGATION OF PUBLIC FACILITIES
Sec. 301. (a) Whenever the Attorney General receives a complaint in writing signed by an individual to the effect that he is being deprived of or threatened with the loss of his right to the equal protection of the laws, on account of his race, color, religion, or national origin, by being denied equal utilization of any public facility which is owned, operated, or managed by or on behalf of any State or subdivision thereof, other than a public school or public college as defined in section 401 of title IV hereof, and the Attorney General believes the complaint is meritorious and certifies that the signer or signers of such complaint are unable, in his judgment, to initiate and maintain appropriate legal proceedings for relief and that the institution of an action will materially further the orderly progress of desegregation in public facilities, the Attorney General is authorized to institute for or in the name of the United States a civil action in any appropriate district court of the United States against such parties and for such relief as may be appropriate, and such court shall have and shall exercise jurisdiction of proceedings instituted pursuant to this section. The Attorney General may implead as defendants such additional parties as are or become necessary to the grant of effective relief hereunder.
(b) The Attorney General may deem a person or persons unable to initiate and maintain appropriate legal proceedings within the meaning of subsection (a) of this section when such person or persons are unable, either directly or through other interested persons or organizations, to bear the expense of the litigation or to obtain effective legal representation; or whenever he is satisfied that the institution of such litigation would jeopardize the personal safety, employment, or economic standing of such person or persons, their families, or their property.
Sec. 302. In any action or proceeding under this title the United States shall be liable for costs, including a reasonable attorney’s fee, the same as a private person.
Sec. 303. Nothing in this title shall affect adversely the right of any person to sue for or obtain relief in any court against discrimination in any facility covered by this title.
Sec. 304. A complaint as used in this title is a writing or document within the meaning of section 1001, title 18, United States Code.
TITLE IV — DESEGREGATION OF PUBLIC EDUCATION
Sec. 401. As used in this title —
(a) “Commissioner” means the Commissioner of Education.
(b) “Desegregation” means the assignment of students to public schools and within such schools without regard to their race, color, religion, or national origin, but “desegregation” shall not mean the assignment of students to public schools in order to overcome racial imbalance.
(c) “Public school” means any elementary or secondary educational institution, and “public college” means any institution of higher education or any technical or vocational school above the secondary school level, provided that such public school or public college is operated by a State, subdivision of a State, or governmental agency within a State, or operated wholly or predominantly from or through the use of governmental funds or property, or funds or property derived from a governmental source.
(d) “School board” means any agency or agencies which administer a system of one or more public schools and any other agency which is responsible for the assignment of students to or within such system.
Survey and Report of Educational Opportunities
Sec. 402. The Commissioner shall conduct a survey and make a report to the President and the Congress, within two years of the enactment of this title concerning the lack of availability of equal educational opportunities for individuals by reason of race, color religion, or national origin in public educational institutions at all levels in the United States, its territories and possessions, and the District of Columbia.
Sec. 403. The Commissioner is authorized, upon the application of any school board, State, municipality, school district, or other governmental unit legally responsible for operating a public school or schools, to render technical assistance to such applicant in the preparation, adoption, and implementation of plans for the desegregation of public schools. Such technical assistance may, among other activities, include making available to such agencies information regarding effective methods of coping with special educational problems occasioned by desegregation, and making available to such agencies personnel of the Office of Education or other persons specially equipped to advise and assist them in coping with such problems.
Sec. 404. The Commissioner is authorized to arrange, through grants or contracts, with institutions of higher education for the operation of short-term or regular session institutes for special training designed to improve the ability of teachers, supervisors, counselors, and other elementary or secondary school personnel to deal effectively with special educational problems occasioned by desegregation. Individuals who attend such an institute on a full-time basis may be paid stipends for the period of their attendance at such institute in amounts specified by the Commissioner in regulations, including allowances for travel to attend such institute.
Sec. 405. (a) The Commissioner is authorized, upon application of a school board, to make grants to such board to pay, in whole or in part, the cost of —
(1) giving to teachers and other school personnel inservice training in dealing with problems incident to desegregation, and
(2) employing specialists to advise in problems incident to desegregation.
(b) In determining whether to make a grant, and in fixing the amount thereof and the terms and conditions on which it will be made, the Commissioner shall take into consideration the amount available for grants under this section and the other applications which are pending before him; the financial condition of the applicant and the other resources available to it; the nature, extent, and gravity of its problems incident to desegregation; and such other factors as he finds relevant.
Sec. 406. Payments pursuant to a grant or contract under this title may be made (after necessary adjustments on account of previously made overpayments or underpayments) in advance or by way of reimbursement, and in such installments, as the Commissioner may determine.
Suits by the Attorney General
Sec. 407. (a) Whenever the Attorney General receives a complaint in writing —
(1) signed by a parent or group of parents to the effect that his or their minor children, as members of a class of persons similarly situated, are being deprived by a school board of the equal protection of the laws, or
(2) signed by an individual, or his parent, to the effect that he has been denied admission to or not permitted to continue in attendance at a public college by reason of race, color, religion, or national origin,
and the Attorney General believes the complaint is meritorious and certifies that the signer or signers of such complaint are unable, in his judgment, to initiate and maintain appropriate legal proceedings for relief and that the institution of an action will materially further the orderly achievement of desegregation in public education, the Attorney General is authorized, after giving notice of such complaint to the appropriate school board or college authority and after certifying that he is satisfied that such board or authority has had a reasonable time to adjust the conditions alleged in such complaint, to institute for or in the name of the United States a civil action in any appropriate district court of the United States against such parties and for such relief as may be appropriate, and such court shall have and shall exercise jurisdiction of proceedings instituted pursuant to this section, provided that nothing herein shall empower any official or court of the United States to issue any order seeking to achieve a racial balance in any school by requiring the transportation of pupils or students from one school to another or one school district to another in order to achieve such racial balance, or otherwise enlarge the existing power of the court to insure compliance with constitutional standards. The Attorney General may implead as defendants such additional parties as are or become necessary to the grant of effective relief hereunder.
(b) The Attorney General may deem a person or persons unable to initiate and maintain appropriate legal proceedings within the meaning of subsection (a) of this section when such person or persons are unable, either directly or through other interested persons or organizations, to bear the expense of the litigation or to obtain effective legal representation; or whenever he is satisfied that the institution of such litigation would jeopardize the personal safety, employment, or economic standing of such person or persons, their families, or their property.
(c) The term “parent” as used in this section includes any person standing in loco parentis. A “complaint” as used in this section is a writing or document within the meaning of section 1001, title 18, United States Code.
Sec. 408. In any action or proceeding under this title the United States shall be liable for costs the same as a private person.
Sec. 409. Nothing in this title shall affect adversely the right of any person to sue for or obtain relief in any court against discrimination in public education.
Sec. 410. Nothing in this title shall prohibit classification and assignment for reasons other than race, color, religion, or national origin.
TITLE V — COMMISSION ON CIVIL RIGHTS
Sec. 501. Section 102 of the Civil Rights Act of 1957 (42 U.S.C. 1975a; 71 Stat. 634) is amended to read as follows:
“Rules of Procedure of the Commission Hearings
“Sec. 102. (a) At least thirty days prior to the commencement of any hearing, the Commission shall cause to be published in the Federal Register notice of the date on which such hearing is to commence, the place at which it is to be held and the subject of the hearing. The Chairman, or one designated by him to act as Chairman at a hearing of the Commission, shall announce in an opening statement the subject of the hearing.
“(b) A copy of the Commission’s rules shall be made available to any witness before the Commission, and a witness compelled to appear before the Commission or required to produce written or other matter shall be served with a copy of the Commission’s rules at the time of service of the subpena.
“(c) Any person compelled to appear in person before the Commission shall be accorded the right to be accompanied and advised by counsel, who shall have the right to subject his client to reasonable examination, and to make objections on the record and to argue briefly the basis for such objections. The Commission shall proceed with reasonable dispatch to conclude any hearing in which it is engaged. Due regard shall be had for the convenience and necessity of witnesses.
“(d) The Chairman or Acting Chairman may punish breaches of order and decorum by censure and exclusion from the hearings.
“(e) If the Commission determines that evidence or testimony at any hearing may tend to defame, degrade, or incriminate any person, it shall receive such evidence or testimony or summary of such evidence or testimony in executive session. The Commission shall afford any person defamed, degraded, or incriminated by such evidence or testimony an opportunity to appear and be heard in executive session, with a reasonable number of additional witnesses requested by him, before deciding to use such evidence or testimony. In the event the Commission determines to release or use such evidence or testimony in such manner as to reveal publicly the identity of the person defamed, degraded, or incriminated, such evidence or testimony, prior to such public release or use, shall be given at a public session, and the Commission shall afford such person an opportunity to appear as a voluntary witness or to file a sworn statement in his behalf and to submit brief and pertinent sworn statements of others. The Commission shall receive and dispose of requests from such person to subpena additional witnesses.
“(f) Except as provided in sections 102 and 105(f) of this Act, the Chairman shall receive and the Commission shall dispose of requests to subpena additional witnesses.
“(g) No evidence or testimony or summary of evidence or testimony taken in executive session may be released or used in public sessions without the consent of the Commission. Whoever releases or uses in public without the consent of the Commission such evidence or testimony taken in executive session shall be fined not more than $1,000, or imprisoned for not more than one year.
“(h) In the discretion of the Commission, witnesses may submit brief and pertinent sworn statements in writing for inclusion in the record. The Commission shall determine the pertinency of testimony and evidence adduced at its hearings.
“(i) Every person who submits data or evidence shall be entitled to retain or, on payment of lawfully prescribed costs, procure a copy or transcript thereof, except that a witness in a hearing held in executive session may for good cause be limited to inspection of the official transcript of his testimony. Transcript copies of public sessions may be obtained by the public upon the payment of the cost thereof. An accurate transcript shall be made of the testimony of all witnesses at all hearings, either public or executive sessions, of the Commission or of any subcommittee thereof.
“(j) A witness attending any session of the Commission shall receive $6 for each day’s attendance and for the time necessarily occupied in going to and returning from the same, and 10 cents per mile for going from and returning to his place of residence. Witnesses who attend at points so far removed from their respective residences as to prohibit return thereto from day today shall be entitled to an additional allowance of $10 per day for expenses of subsistence, including the time necessarily occupied in going to and returning from the place of attendance. Mileage payments shall be tendered to the witness upon service of a subpena issued on behalf of the Commission or any subcommittee thereof.
“(k) The Commission shall not issue any subpena for the attendance and testimony of witnesses or for the production of written or other matter which would require the presence of the party subpenaed at a hearing to be held outside of the State wherein the witness is found or resides or is domiciled or transacts business, or has appointed an agent for receipt of service of process except that, in any event, the Commission may issue subpenas for the attendance and testimony of witnesses and the production of written or other matter at a hearing held within fifty miles of the place where the witness is found or resides or is domiciled or transacts business or has appointed an agent for receipt of service of process.
“(l) The Commission shall separately state and currently publish in the Federal Register (1) descriptions of its central and field organization including the established places at which, and methods whereby, the public may secure information or make requests; (2) statements of the general course and method by which its functions are channeled and determined, and (3) rules adopted as authorized by law. No person shall in any manner be subject to or required to resort to rules, organization, or procedure not so published.”
Sec. 502. Section 103(a) of the Civil Rights Act of 1957 (42 U.S.C. 1975b(a); 71 Stat. 634) is amended to read as follows: “Sec. 103. (a) Each member of the Commission who is not otherwise in the service of the Government of the United States shall receive the sum of $75 per day for each day spent in the work of the Commission, shall be paid actual travel expenses, and per diem in lieu of subsistence expenses when away from his usual place of residence, in accordance with section 5 of the Administrative Expenses Act of 1946, as amended (5 U.S.C. 73b-2; 60 Stat. 808).”
Sec. 503. Section 103(b) of the Civil Rights Act of 1957 (42 U.S.C. 1975b(b); 71 Stat. 634) is amended to read as follows: “(b) Each member of the Commission who is otherwise in the service of the Government of the United States shall serve without compensation in addition to that received for such other service, but while engaged in the work of the Commission shall be paid actual travel expenses, and per diem in lieu of subsistence expenses when away from his usual place of residence, in accordance with the provisions of the Travel Expenses Act of 1949, as amended (5 U.S.C. 835 — 42; 63 Stat. 166).”
Sec. 504. (a) Section 104(a) of the Civil Rights Act of 1957 (42 U.S.C. 1975c(a); 71 Stat. 635), as amended, is further amended to read as follows:
“Duties of the Commission
“Sec. 104. (a) The Commission shall —
“(1) investigate allegations in writing under oath or affirmation that certain citizens of the United States are being deprived of their right to vote and have that vote counted by reason of their color, race, religion, or national origin; which writing, under oath or affirmation, shall set forth the facts upon which such belief or beliefs are based;
“(2) study and collect information concerning legal developments constituting a denial of equal protection of the laws under the Constitution because of race, color, religion or national origin or in the administration of justice;
“(3) appraise the laws and policies of the Federal Government with respect to denials of equal protection of the laws under the Constitution because of race, color, religion or national origin or in the administration of justice;
“(4) serve as a national clearinghouse for information in respect to denials of equal protection of the laws because of race, color, religion or national origin, including but not limited to the fields of voting, education, housing, employment, the use of public facilities, and transportation, or in the administration of justice;
“(5) investigate allegations, made in writing and under oath or affirmation, that citizens of the United States are unlawfully being accorded or denied the right to vote, or to have their votes properly counted, in any election of presidential electors, Members of the United States Senate, or of the House of Representatives, as a result of any patterns or practice of fraud or discrimination in the conduct of such election; and
“(6) Nothing in this or any other Act shall be construed as authorizing the Commission, its Advisory Committees, or any person under its supervision or control to inquire into or investigate any membership practices or internal operations of any fraternal organization, any college or university fraternity or sorority, any private club or any religious organization.”
(b) Section 104(b) of the Civil Rights Act of 1957 (42 U.S.C. 1975c(b); 71 Stat. 635), as amended, is further amended by striking out the present subsection “(b)” and by substituting therefor:
“(b) The Commission shall submit interim reports to the President and to the Congress at such times as the Commission, the Congress or the President shall deem desirable, and shall submit to the President and to the Congress a final report of its activities, findings, and recommendations not later than January 31, 1968.”
Sec. 505. Section 105(a) of the Civil Rights Act of 1957 (42 U.S.C. 1975d(a); 71 Stat. 636) is amended by striking out in the last sentence thereof “$50 per diem” and inserting in lieu thereof “$75 per diem.”
Sec. 506. Section 105(f) and section 105(g) of the Civil Rights Act of 1957 (42 U.S.C. 1975d (f) and (g); 71 Stat. 636) are amended to read as follows:
“(f) The Commission, or on the authorization of the Commission any subcommittee of two or more members, at least one of whom shall be of each major political party, may, for the purpose of carrying out the provisions of this Act, hold such hearings and act at such times and places as the Commission or such authorized subcommittee may deem advisable. Subpenas for the attendance and testimony of witnesses or the production of written or other matter may be issued in accordance with the rules of the Commission as contained in section 102(j) and (k) of this Act, over the signature of the Chairman of the Commission or of such subcommittee, and may be served by any person designated by such Chairman. The holding of hearings by the Commission, or the appointment of a subcommittee to hold hearings pursuant to this subparagraph, must be approved by a majority of the Commission, or by a majority of the members present at a meeting at which at least a quorum of four members is present.
“(g) In case of contumacy or refusal to obey a subpena, any district court of the United States or the United States court of any territory or possession, or the District Court of the United States for the District of Columbia, within the jurisdiction of which the inquiry is carried on or within the jurisdiction of which said person guilty of contumacy or refusal to obey is found or resides or is domiciled or transacts business, or has appointed an agent for receipt of service of process, upon application by the Attorney General of the United States shall have jurisdiction to issue to such person an order requiring such person to appear before the Commission or a subcommittee thereof, thereto produce pertinent, relevant and nonprivileged evidence if so ordered, or there to give testimony touching the matter under investigation; and any failure to obey such order of the court maybe punished by said court as a contempt thereof.”
Sec. 507. Section 105 of the Civil Rights Act of 1957 (42 U.S.C. 1975d; 71 Stat. 636), as amended by section 401 of the Civil Rights Act of 1960 (42 U.S.C. 1975d(h); 74 Stat. 89), is further amended by adding a new subsection at the end to read as follows:
“(i) The Commission shall have the power to make such rules and regulations as are necessary to carry out the purposes of this Act.”
TITLE VI — NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS
Sec. 601. 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.
Sec. 602. Each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity, byway of grant, loan, or contract other than a contract of insurance or guaranty, is authorized and directed to effectuate the provisions of section 601 with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken. No such rule, regulation, or order shall become effective unless and until approved by the President. Compliance with any requirement adopted pursuant to this section may be effected (1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to comply with such requirement, but such termination or refusal shall be limited to the particular political entity, or part thereof, or other recipient as to whom such a finding has been made and, shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found, or (2) by any other means authorized by law: Provided, however, That no such action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means. In the case of any action terminating, or refusing to grant or continue, assistance because of failure to comply with a requirement imposed pursuant to this section, the head of the Federal department or agency shall file with the committees of the House and Senate having legislative jurisdiction over the program or activity involved a full written report of the circumstances and the grounds for such action. No such action shall become effective until thirty days have elapsed after the filing of such report.
Sec. 603. Any department or agency action taken pursuant to section 602 shall be subject to such judicial review as may otherwise be provided by law for similar action taken by such department or agency on other grounds. In the case of action, not otherwise subject to judicial review, terminating or refusing to grantor to continue financial assistance upon a finding of failure to comply with any requirement imposed pursuant to section 602, any person aggrieved (including any State or political subdivision thereof and any agency of either) may obtain judicial review of such action in accordance with section 10 of the Administrative Procedure Act, and such action shall not be deemed committed to unreviewable agency discretion within the meaning of that section.
Sec. 604. Nothing contained in this title shall be construed to authorized action under this title by any department or agency with respect to any employment practice of any employer, employment agency, or labor organization except where a primary objective of the Federal financial assistance is to provide employment.
Sec. 605. Nothing in this title shall add to or detract from any existing authority with respect to any program or activity under which Federal financial assistance is extended by way of a contract of insurance or guaranty.
TITLE VII — EQUAL EMPLOYMENT OPPORTUNITY
Sec. 701. For the purposes of this title —
(a) The term “person” includes one or more individuals, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in bankruptcy, or receivers.
(b) The term “employer” means a person engaged in an industry affecting commerce who has twenty-five or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person, but such term does not include (1) the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or a State or political subdivision thereof, (2) a bona fide private membership club (other than a labor organization) which is exempt from taxation under section 501(c) of the Internal Revenue Code of 1954: Provided, That during the first year after the effective date prescribed in subsection (a) of section 716, persons having fewer than one hundred employees (and their agents) shall not be considered employers, and, during the second year after such date, persons having fewer than seventy-five employees (and their agents) shall not be considered employers, and, during the third year after such date, persons having fewer than fifty employees (and their agents) shall not be considered employers: Provided further, That it shall be the policy of the United States to insure equal employment opportunities for Federal employees without discrimination because of race, color, religion, sex or national origin and the President shall utilize his existing authority to effectuate this policy.
(c) The term “employment agency” means any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person; but shall not include an agency of the United States, or an agency of a State or political subdivision of a State, except that such term shall include the United States Employment Service and the system of State and local employment services receiving Federal assistance.
(d) The term “labor organization” means a labor organization engaged in an industry affecting commerce, and any agent of such an organization, and includes any organization of any kind, any agency, or employee representation committee, group, association, or plan so engaged in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment, and any conference, general committee, joint or system board, or joint council so engaged which is subordinate to a national or international labor organization.
(e) A labor organization shall be deemed to be engaged in an industry affecting commerce if (1) it maintains or operates a hiring hall a hiring office, which procures employees for an employer or procures for employees opportunities to work for an employer, or (2) the number of its members (or, where it is a labor organization composed of other labor organizations of their representatives, if the aggregate number of the members of such other labor organization) is (A) one hundred or more during the first year after the effective date prescribed in subsection (a) of section 716, (B) seventy-five or more during the second year after such date of fifty or more during the third year, or (C) twenty-five or more thereafter, and such labor organization —
(1) is the certified representative of employees under the provisions of the National Labor Relations Act, as amended, or the Railway Labor Act, as amended;
(2) although not certified, is a national or international labor organization or a local labor organization recognized or acting as the representative of employees of an employer or employers engaged in an industry affecting commerce; or
(3) has chartered a local labor organization or subsidiary body which is representing or actively seeking to represent employees of employers within the meaning of paragraph (1) or (2); or
(4) has been chartered by a labor organization representing or actively seeking to represent employees within the meaning of paragraph (1) or (2) as the local or subordinate body through which such employees may enjoy membership or become affiliated with such labor organization; or
(5) is a conference, general committee, joint or system board, or joint council subordinate to a national or international labor organization, which includes a labor organization engaged in an industry affecting commerce within the meaning of any of the preceding paragraphs of this subsection.
(f) The term “employee” means an individual employed by an employer.
(g) The term “commerce” means trade, traffic, commerce, transportation, transmission, or communication among the several States; or between a State and any place outside thereof; or within the District of Columbia, or a possession of the United States; or between points in the same State but through a point outside thereof.
(h) The term “industry affecting commerce” means any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce and includes any activity or industry “affecting commerce” within the meaning of the Labor-Management Reporting and Disclosure Act of 1959.
(i) The term “State” includes a State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Canal Zone, and Outer Continental Shelf lands defined in the Outer Continental Shelf Lands Act.
Sec. 702. This title shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation, association, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, or society of its religious activities or to an educational institution with respect to the employment of individuals to perform work connected with the educational activities of such institution.
Discrimination because of Race, Color, Religion, Sex, or National Origin
Sec. 703. (a) It shall be an unlawful employment practice for an employer —
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
(b) It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin, or to classify or refer for employment any individual on the basis of his race, color, religion, sex, or national origin.
(c) It shall be an unlawful employment practice for a labor organization —
(1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin;
(2) to limit, segregate, or classify its membership, or to classify or fail or refuse to refer for employment any individual, in anyway which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual’s race, color, religion, sex, or national origin; or
(3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section.
(d) It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.
(e) Notwithstanding any other provision of this title, (1) it shall not be an unlawful employment practice for an employer to hire and employ employees, for an employment agency to classify, or refer for employment any individual, for a labor organization to classify its membership or to classify or refer for employment any individual, or for an employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in any such program, on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise, and (2) it shall not be an unlawful employment practice for a school, college, university, or other educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion.
(f) As used in this title, the phrase “unlawful employment practice” shall not be deemed to include any action or measure taken by an employer, labor organization, joint labor-management committee, or employment agency with respect to an individual who is a member of the Communist Party of the United States or of any other organization required to register as a Communist-action or Communist-front organization by final order of the Subversive Activities Control Board pursuant to the Subversive Activities Control Act of 1950.
(g) Notwithstanding any other provision of this title, it shall not be an unlawful employment practice for an employer to fail or refuse to hire and employ any individual for any position, for an employer to discharge any individual from any position, or for an employment agency to fail or refuse to refer any individual for employment in any position, or for a labor organization to fail or refuse to refer any individual for employment in any position, if —
(1) the occupancy of such position, or access to the premises in or upon which any part of the duties of such position is performed or is to be performed, is subject to any requirement imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under any statute of the United States or any Executive order of the President; and
(2) such individual has not fulfilled or has ceased to fulfill that requirement.
(h) Notwithstanding any other provision of this title, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work indifferent locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin, nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin. It shall not be an unlawful employment practice under this title for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of section 6(d) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 206(d)).
(i) Nothing contained in this title shall apply to any business or enterprise on or near an Indian reservation with respect to any publicly announced employment practice of such business or enterprise under which a preferential treatment is given to any individual because he is an Indian living on or near a reservation.
(j) Nothing contained in this title shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this title to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area.
Other Unlawful Employment Practices
Sec. 704. (a) It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this title, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title.
(b) It shall be an unlawful employment practice for an employer, labor organization, or employment agency to print or publish or cause to be printed or published any notice or advertisement relating to employment by such an employer or membership in or any classification or referral for employment by such a labor organization, or relating to any classification or referral for employment by such an employment agency, indicating any preference, limitation, specification, or discrimination, based on race, color, religion, sex, or national origin, except that such a notice or advertisement may indicate a preference, limitation, specification, or discrimination based on religion, sex, or national origin when religion, sex, or national origin is a bona fide occupational qualification for employment.
Equal Employment Opportunity Commission
Sec. 705. (a) There is hereby created a Commission to be known as the Equal Employment Opportunity Commission, which shall be composed of five members, not more than three of whom shall be members of the same political party, who shall be appointed by the President by and with the advice and consent of the Senate. One of the original members shall be appointed for a term of one year, one for a term of two years, one for a term of three years, one for a term of four years, and one for a term of five years, beginning from the date of enactment of this title, but their successors shall be appointed for terms of five years each, except that any individual chosen to fill a vacancy shall be appointed only for the unexpired term of the member whom he shall succeed. The President shall designate one member to serve as Chairman of the Commission, and one member to serve as Vice Chairman. The Chairman shall be responsible on behalf of the Commission for the administrative operations of the Commission, and shall appoint, in accordance with the civil service laws, such officers, agents, attorneys, and employees as it deems necessary to assist it in the performance of its functions and to fix their compensation in accordance with the Classification Act of 1949, as amended. The Vice Chairman shall act as Chairman in the absence or disability of the Chairman or in the event of a vacancy in that office.
(b) A vacancy in the Commission shall not impair the right of the remaining members to exercise all the powers of the Commission and three members thereof shall constitute a quorum.
(c) The Commission shall have an official seal which shall be judicially noticed.
(d) The Commission shall at the close of each fiscal year report to the Congress and to the President concerning the action it has taken; the names, salaries, and duties of all individuals in its employ and the moneys it has disbursed; and shall make such further reports on the cause of and means of eliminating discrimination and such recommendations for further legislation as may appear desirable.
(e) The Federal Executive Pay Act of 1956, as amended (5 U.S.C. 2201-2209), is further amended —
(1) by adding to section 105 thereof (5 U.S.C. 2204) the following clause:
“(32) Chairman, Equal Employment Opportunity Commission”; and
(2) by adding to clause (45) of section 106(a) thereof (5 U.S.C. 2205(a)) the following: “Equal Employment Opportunity Commission (4).”
(f) The principal office of the Commission shall be in or near the District of Columbia, but it may meet or exercise any or all its powers at any other place. The Commission may establish such regional or State offices as it deems necessary to accomplish the purpose of this title.
(g) The Commission shall have power —
(1) to cooperate with and, with their consent, utilize regional, State, local, and other agencies, both public and private, and individuals;
(2) to pay to witnesses whose depositions are taken or who are summoned before the Commission or any of its agents the same witness and mileage fees as are paid to witnesses in the courts of the United States;
(3) to furnish to persons subject to this title such technical assistance as they may request to further their compliance with this title or an order issued thereunder;
(4) upon the request of (i) any employer, whose employees or some of them, or (ii) any labor organization, whose members or some of them, refuse or threaten to refuse to cooperate in effectuating the provisions of this title, to assist in such effectuation by conciliation or such other remedial action as is provided by this title;
(5) to make such technical studies as are appropriate to effectuate the purposes and policies of this title and to make the results of such studies available to the public;
(6) to refer matters to the Attorney General with recommendations for intervention in a civil action brought by an aggrieved party under section 706, or for the institution of a civil action by the Attorney General under section 707, and to advise, consult, and assist the Attorney General on such matters.
(h) Attorneys appointed under this section may, at the direction of the Commission, appear for and represent the Commission in any casein court.
(i) The Commission shall, in any of its educational or promotional activities, cooperate with other departments and agencies in the performance of such educational and promotional activities.
(j) All officers, agents, attorneys, and employees of the Commission shall be subject to the provisions of section 9 of the Act of August 2, 1939, as amended (the Hatch Act), notwithstanding any exemption contained in such section.
Prevention of Unlawful Employment Practices
Sec. 706. (a) Whenever it is charged in writing under oath by a person claiming to be aggrieved, or a written charge has been filed by a member of the Commission where he has reasonable cause to believe a violation of this title has occurred (and such charge sets forth the facts upon which it is based) that an employer, employment agency, or labor organization has engaged in an unlawful employment practice, the Commission shall furnish such employer, employment agency, or labor organization (hereinafter referred to as the “respondent”) with a copy of such charge and shall make an investigation of such charge, provided that such charge shall not be made public by the Commission. If the Commission shall determine, after such investigation, that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. Nothing said or done during and as a part of such endeavors may be made public by the Commission without the written consent of the parties, and used as evidence in a subsequent proceeding. Any officer or employee of the Commission, who shall make public in any manner whatever any information in violation of this subsection shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not more than $1,000 or imprisoned not more than one year.
(b) In the case of an alleged unlawful employment practice occurring in a State, or political subdivision of a State, which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no charge may be filed under subsection (a) by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated, provided that such sixty-day period shall be extended to one hundred and twenty days during the first year after the effective date of such State or local law. If any requirement for the commencement of such proceedings is imposed by a State or local authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate State or local authority.
(c) In the case of any charge filed by a member of the Commission alleging an unlawful employment practice occurring in a State or political subdivision of a State, which has a State or local law prohibiting the practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, the Commission shall, before taking any action with respect to such charge, notify the appropriate State or local officials and, upon request, afford them a reasonable time, but not less than sixty days (provided that such sixty-day period shall be extended to one hundred and twenty days during the first year after the effective day of such State or local law), unless a shorter period is requested, to act under such State or local law to remedy the practice alleged.
(d) A charge under subsection (a) shall be filed within ninety days after the alleged unlawful employment practice occurred, except that in the case of an unlawful employment practice with respect to which the person aggrieved has followed the procedure set out in subsection (b), such charge shall be filed by the person aggrieved within two hundred and ten days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission with the State or local agency.
(e) If within thirty days after a charge is filed with the Commission or within thirty days after expiration of any period of reference under subsection (c) (except that in either case such period may be extended to not more than sixty days upon a determination by the Commission that further efforts to secure voluntary compliance are warranted), the Commission has been unable to obtain voluntary compliance with this title, the Commission shall so notify the person aggrieved and a civil action may, within thirty days thereafter, be brought against the respondent named in the charge (1) by the person claiming to be aggrieved, or (2) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice. Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action without the payment of fees, costs, or security. Upon timely application, the court may, in its discretion, permit the Attorney General to intervene in such civil action if he certifies that the case is of general public importance. Upon request, the court may, in its discretion, stay further proceedings for not more than sixty days pending the termination of State or local proceedings described in subsection (b) or the efforts of the Commission to obtain voluntary compliance.
(f) Each United States district court and each United States court of a place subject to the jurisdiction of the United States shall have jurisdiction of actions brought under this title. Such an action may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or in the judicial district in which the plaintiff would have worked but for the alleged unlawful employment practice, but if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his principal office. For purposes of sections 1404 and 1406 of title 28 of the United States Code, the judicial district in which the respondent has his principal office shall in all cases be considered a district in which the action might have been brought.
(g) If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice). Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable. No order of the court shall require the admission or reinstatement of an individual as a member of a union or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, suspended, or expelled or was refused employment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex or national origin or in violation of section 704(a).
(h) The provisions of the Act entitle “An Act to amend the Judicial Code and to define and limit the jurisdiction of courts sitting inequity, and for other purposes,” approved March 23, 1932 (29 U.S.C. 101-115), shall not apply with respect to civil actions brought under this section.
(i) In any case in which an employer, employment agency, or labor organization fails to comply with an order of a court issued in a civil action brought under subsection (e), the Commission may commence proceedings to compel compliance with such order.
(j) Any civil action brought under subsection (e) and any proceedings brought under subsection (i) shall be subject to appeal as provided in sections 1291 and 1292, title 28, United States Code.
(k) In any action or proceeding under this title the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.
Sec. 707. (a) Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this title, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described, the Attorney General may bring a civil action in the appropriate district court of the United States by filing with it a complaint (1) signed by him (or in his absence the Acting Attorney General), (2) setting forth facts pertaining to such pattern or practice, and (3) requesting such relief, including an application for a permanent or temporary injunction, restraining order or other order against the person or persons responsible for such pattern or practice, as he deems necessary to insure the full enjoyment of the rights herein described.
(b) The district courts of the United States shall have and shall exercise jurisdiction of proceedings instituted pursuant to this section, and in any such proceeding the Attorney General may file with the clerk of such court a request that a court of three judges be convened to hear and determine the case. Such request by the Attorney General shall be accompanied by a certificate that, in his opinion, the case is of general public importance. A copy of the certificate and request for a three-judge court shall be immediately furnished by such clerk to the chief judge of the circuit (or in his absence, the presiding circuit judge of the circuit) in which the case is pending. Upon receipt of such request it shall be the duty of the chief judge of the circuit or the presiding circuit judge, as the case may be, to designate immediately three judges in such circuit, of whom at least one shall be a circuit judge and another of whom shall be a district judge of the court in which the proceeding was instituted, to hear and determine such case, and it shall be the duty of the judges so designated to assign the case for hearing at the earliest practicable date, to participate in the hearing and determination thereof, and to cause the case to be in every way expedited. An appeal from the final judgment of such court will lie to the Supreme Court.
In the event the Attorney General fails to file such a request in any such proceeding, it shall be the duty of the chief judge of the district (or in his absence, the acting chief judge) in which the case is pending immediately to designate a judge in such district to hear and determine the case. In the event that no judge in the district is available to hear and determine the case, the chief judge of the district, or the acting chief judge, as the case may be, shall certify this fact to the chief judge of the circuit (or in his absence, the acting chief judge) who shall then designate a district or circuit judge of the circuit to hear and determine the case.
It shall be the duty of the judge designated pursuant to this section to assign the case for hearing at the earliest practicable date and to cause the case to be in every way expedited.
Effect on State Laws
Sec. 708. Nothing in this title shall be deemed to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any present or future law of any State or political subdivision of a State, other than any such law which purports to require or permit the doing of any act which would be an unlawful employment practice under this title.
Investigations, Inspections, Records, State Agencies
Sec. 709. (a) In connection with any investigation of a charge filed under section 706, the Commission or its designated representative shall at all reasonable times have access to, for the purposes of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to unlawful employment practices covered by this title and is relevant to the charge under investigation.
(b) The Commission may cooperate with State and local agencies charged with the administration of State fair employment practices laws and, with the consent of such agencies, may for the purpose of carrying out its functions and duties under this title and within the limitation of funds appropriated specifically for such purpose, utilize the services of such agencies and their employees and, notwithstanding any other provision of law, may reimburse such agencies and their employees for services rendered to assist the Commission in carrying out this title. In furtherance of such cooperative efforts, the Commission may enter into written agreements with such State or local agencies and such agreements may include provisions under which the Commission shall refrain from processing a charge in any cases or class of cases specified in such agreements and under which no person may bring a civil action under section 706 in any cases or class of cases so specified, or under which the Commission shall relieve any person or class of persons in such State or locality from requirements imposed under this section. The Commission shall rescind any such agreement whenever it determines that the agreement no longer serves the interest of effective enforcement of this title.
(c) Except as provided is subsection (d), every employer, employment agency, and labor organization subject to this title shall (1) make and keep such records relevant to the determinations of whether unlawful employment practices have been or are being committed, (2) preserve such records for such periods, and (3) make such reports therefrom, as the Commission shall prescribe by regulation or order, after public hearing, as reasonable, necessary, or appropriate for the enforcement of this title or the regulations or orders thereunder. The Commission shall, by regulation, require each employer, labor organization, and joint labor-management committee subject to this title which controls an apprenticeship or other training program to maintain such records as are reasonably necessary to carry out the purpose of this title, including, but not limited to, a list of applicants who wish to participate in such program, including the chronological order in which such applications were received, and shall furnish to the Commission, upon request, a detailed description of the manner in which persons are selected to participate in the apprenticeship or other training program. Any employer, employment agency, labor organization, or joint labor-management committee which believes that the application to it of any regulation or order issued under this section would result in undue hardship may (1) apply to the Commission for an exemption from the application of such regulation or order, or (2) bring a civil action in the United States district court for the district where such records are kept. If the Commission or the court, as the case maybe, finds that the application of the regulation or order to the employer, employment agency, or labor organization in question would impose an undue hardship, the Commission or the court, as the case may be, may grant appropriate relief.
(d) The provisions of subsection (c) shall not apply to any employer, employment agency, labor organization, or joint labor management committee with respect to matters occurring in any State or political subdivision thereof which has a fair employment practice law during any period in which such employer, employment agency, labor organization, or joint labor-management committee is subject to such law, except that the Commission may require such notations on records which such employer, employment agency, labor organization, or joint labor-management committee keeps or is required to keep as are necessary because of differences in coverage or methods of enforcement between the State or local law and the provisions of this title. Where an employer is required by Executive Order 10925, issued March 6, 1961, or by any other Executive order prescribing fair employment practices for Government contractors and subcontractors, or by rules or regulations issued thereunder, to file reports relating to his employment practices with any Federal agency or committee, and he is substantially in compliance with such requirements, the Commission shall not require him to file additional reports pursuant to subsection (c) of this section.
(e) It shall be unlawful for any officer or employee of the Commission to make public in any manner whatever any information obtained by the Commission pursuant to its authority under this section prior to the institution of any proceeding under this title involving such information. Any officer or employee of the Commission who shall make public in any manner whatever any information in violation of this subsection shall be guilty of a misdemeanor and upon conviction thereof, shall be fined not more than $1,000, or imprisoned not more than one year.
Sec. 710. (a) For the purposes of any investigation of a charge filed under the authority contained in section 706, the Commission shall have the authority to examine witnesses under oath and to require the production of documentary evidence relevant or material to the charge under investigation.
(b) If the respondent named in a charge filed under section 706 fails or refuses to comply with a demand of the Commission for permission to examine or to copy evidence in conformity with the provisions of section 709(a), or if any person required to comply with the provisions of section 709(c) or (d) fails or refuses to do so, or if any person fails or refuses to comply with a demand by the Commission to give testimony under oath, the United States district court for the district in which such person is found, resides, or transacts, business, shall, upon application of the Commission, have jurisdiction to issue to such person an order requiring him to comply with the provisions of section 709(c) or (d) or to comply with the demand of the Commission, but the attendance of a witness may not be required outside the State where he is found, resides, or transacts business and the production of evidence may not be required outside the State where such evidence is kept.
(c) Within twenty days after the service upon any person charged under section 706 of a demand by the Commission for the production of documentary evidence or for permission to examine or to copy evidence in conformity with the provisions of section 709( a), such person may file in the district court of the United States for the judicial district in which he resides, is found, or transacts business, and serve upon the Commission a petition for an order of such court modifying or setting aside such demand. The time allowed for compliance with the demand in whole or in part as deemed proper and ordered by the court shall not run during the pendency of such petition in the court. Such petition shall specify each ground upon which the petitioner relies in seeking such relief, and may be based upon any failure of such demand to comply with the provisions of this title or with the limitations generally applicable to compulsory process or upon any constitutional or other legal right or privilege of such person. No objection which is not raised by such a petition may be urged in the defense to a proceeding initiated by the Commission under subsection (b) for enforcement of such a demand unless such proceeding is commenced by the Commission prior to the expiration of the twenty-day period, or unless the court determines that the defendant could not reasonably have been aware of the availability of such ground of objection.
(d) In any proceeding brought by the Commission under subsection (b), except as provided in subsection (c) of this section, the defendant may petition the court for an order modifying or setting aside the demand of the Commission.
Notices to Be Posted
Sec. 711. (a) Every employer, employment agency, and labor organizations, as the case may be, shall post and keep posted inconspicuous places upon its premises where notices to employees, applicants for employment, and members are customarily posted a notice to be prepared or approved by the Commission setting forth excerpts from or, summaries of, the pertinent provisions of this title and information pertinent to the filing of a complaint.
(b) A willful violation of this section shall be punishable by a fine of not more than $100 for each separate offense.
Sec. 712. Nothing contained in this title shall be construed to repeal or modify any Federal, State, territorial, or local law creating special rights or preference for veterans.
Rules and Regulations
Sec. 713. (a) The Commission shall have authority from time to time to issue, amend, or rescind suitable procedural regulations to carry out the provisions of this title. Regulations issued under this section shall be in conformity with the standards and limitation of the Administrative Procedure Act.
(b) In any action or proceeding based on any alleged unlawful employment practice, no person shall be subject to any liability or punishment for or on account of (1) the commission by such person of an lawful employment practice if he pleads and proves that the act or omission complained of was in good faith, in conformity with, and in reliance on any written interpretation or opinion of the Commission, or (2) the failure of such person to publish and file any information required by any provision of this title if he pleads and proves that he failed to publish and file such information in good faith, in conformity with the instructions of the Commission issued under this title regarding the filing of such information. Such a defense, if established, shall be a bar to the action or proceeding, notwithstanding that (A) after such act or omission, such interpretation or opinion is modified or rescinded or is determined by judicial authority to be invalid or of no legal effect, or (B) after publishing or filing the description and annual reports, such publication or filing is determined by judicial authority not to be in conformity with the requirements of this title.
Forcibly Resisting the Commission or its Representatives
Sec. 714. The provisions of section 111, title 18, United States Code, shall apply to officers, agents, and employees of the Commission in the performance of their official duties.
Special Study by Secretary of Labor
Sec. 715. The Secretary of Labor shall make a full and complete study of the factors which might tend to result in discrimination in employment because of age and of the consequences of such discrimination on the economy and individuals affected. The Secretary of Labor shall make a report to the Congress not later than June 30, 1965, containing the results of such study and shall include in such report such recommendations for legislation to prevent arbitrary discrimination in employment because of age as he determines advisable.
Sec 716. (a) This title shall become effective one year after the date of its enactment.
(b) Notwithstanding subsection (a), sections of this title other than sections 703, 704, 706, and 707 shall become effective immediately.
(c) The President shall, as soon as feasible after the enactment of this title, convene one or more conferences for the purpose of enabling the leaders of groups whose members will be affected by this title to become familiar with the rights afforded obligations imposed by its provisions, and for the purpose of making plans which will result in the fair and effective administration of this title when all of its provisions become effective. The President shall invite the participation in such conference or conferences of (1) the members of the President’s Committee on Equal Employment Opportunity, (2) the members of the Commission on Civil Rights, (3) representatives of State and local agencies engaged in furthering equal employment opportunity, (4) representatives of private agencies engaged in furthering equal employment opportunity, and (5) representatives of employers, labor organizations, and employment agencies who will be subject to this title.
TITLE VIII — REGISTRATION AND VOTING STATISTICS
Sec. 801. The Secretary of Commerce shall promptly conduct a survey to compile registration and voting statistics in such geographic areas as may be recommended by the Commission on Civil Rights. Such a survey and compilation shall, to the extent recommended by the Commission on Civil Rights, only include a count of persons of voting age by race, color, and national origin, and determination of the extent to which such persons are registered to vote, and have voted in any statewide primary or general election in which the Members of the United States House of Representatives are nominated or elected, since January 1, 1960. Such information shall also be collected and compiled in connection with the Nineteenth Decennial Census, and at such other times as the Congress may prescribe. The provisions of section 9 and chapter 7 of title 13, United States Code, shall apply to any survey, collection, or compilation of registration and voting statistics carried out under this title: Provided, however, That no person shall be compelled to disclose his race, color, national origin, or questioned about his political party affiliation, how he voted, or the reasons therefore, nor shall any penalty be imposed for his failure or refusal to make such disclosure. Every person interrogated orally, by written survey or questionnaire or by any other means with respect to such information shall be fully advised with respect to his right to fail or refuse to furnish such information.
TITLE IX — INTERVENTION AND PROCEDURE AFTER REMOVAL IN CIVIL RIGHTS CASES
Sec. 901. Title 28 of the United States Code, section 1447(d), is amended to read as follows:
“An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title shall be reviewabl e by appeal or otherwise.”
Sec. 902. Whenever an action has been commenced in any court of the United States seeking relief from the denial of equal protection of the laws under the fourteenth amendment to the Constitution on account of race, color, religion, or national origin, the Attorney General for or in the name of the United States may intervene in such action upon timely application if the Attorney General certifies that the case is of general public importance. In such action the United States shall be entitled to the same relief as if it had instituted the action.
TITLE X — ESTABLISHMENT OF COMMUNITY RELATIONS SERVICE
Sec. 1001. (a) There is hereby established in and as a part of the Department of Commerce a Community Relations Service (herein after referred to as the “Service”), which shall be headed by a Director who shall be appointed by the President with the advice and consent of the Senate for a term of four years. The Director is authorized to appoint, subject to the civil service laws and regulations, such other personnel as may be necessary to enable the Service to carry out its functions and duties, and to fix their compensation in accordance with the Classification Act of 1949, as amended. The Director is further authorized to procure services as authorized by section 15 of the Act of August 2, 1946 (60 Stat. 810; 5 U.S.C. 55(a)), but at rates for individuals not in excess of $75 per diem.
(b) Section 106(a) of the Federal Executive Pay Act of 1956, as amended (5 U.S.C. 2205(a)), is further amended by adding the following clause thereto:
“(52) Director, Community Relations Service.”
Sec. 1002. It shall be the function of the Service to provide assistance to communities and persons therein in resolving disputes, disagreements, or difficulties relating to discriminatory practices based on race, color, or national origin which impair the rights of persons in such communities under the Constitution or laws of the United States or which affect or may affect interstate commerce. The Service may offer its services in cases of such disputes, disagreements, or difficulties whenever, in its judgment, peaceful relations among the citizens of the community involved are threatened thereby, and it may offer its services either upon its own motion or upon the request of an appropriate State or local official or other interested person.
Sec. 1003. (a) The Service shall, whenever possible, in performing its functions, seek and utilize the cooperation of appropriate State or local, public, or private agencies.
(b) The activities of all officers and employees of the Service in providing conciliation assistance shall be conducted in confidence and without publicity, and the Service shall hold confidential any information acquired in the regular performance of its duties upon the understanding that it would be so held. No officer or employee of the Service shall engage in the performance of investigative or prosecuting functions of any department or agency in any litigation arising out of a dispute in which he acted on behalf of the Service. Any officer or other employee of the Service, who shall make public in any manner whatever any information in violation of this subsection, shall be deemed guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or imprisoned not more than one year.
Sec. 1004. Subject to the provisions of sections 205 and 1003 (b), the Director shall, on or before January 31 of each year, submit to the Congress a report of the activities of the Service during the preceding fiscal year.
TITLE XI — MISCELLANEOUS
Sec. 1101. In any proceeding for criminal contempt arising under title II, III, IV, V, VI, or VII of this Act, the accused, upon demand therefor, shall be entitled to a trial by jury, which shall conform as near as may be to the practice in criminal cases. Upon conviction, the accused shall not be fined more than $1,000 or imprisoned for more than six months.
This section shall not apply to contempts committed in the presence of the court, or so near thereto as to obstruct the administration of justice, nor to the misbehavior, misconduct, or disobedience of any officer to the court in respect to writs, orders, or process of the court. No person shall be convicted of criminal contempt hereunder unless the act or omission constituting such contempt shall have been intentional, as required in other cases of criminal contempt.
Nor shall anything herein be construed to deprive courts of their power, by civil contempt proceedings, without a jury, to secure compliance with or to prevent obstruction of, as distinguished from punishment for violations of, any lawful writ, process, order, rule, decree, or command of the court in accordance with the prevailing usages of law and equity, including the power of detention.
Sec. 1102. No person should be put twice in jeopardy under the laws of the United States for the same act or omission. For this reason, an acquittal or conviction in a prosecution for a specific crime under the laws of the United States shall bar a proceeding for criminal contempt, which is based upon the same act or omission and which arises under the provisions of this Act; and an acquittal or conviction in a proceeding for criminal contempt, which arises under the provisions of this Act, shall bar a prosecution for a specific crime under the laws of the United States based upon the same act or omission.
Sec. 1103. Nothing in this Act shall be construed to deny, impair, or otherwise affect any right or authority of the Attorney General or of the United States or any agency or officer thereof under existing law to institute or intervene in any action or proceeding.
Sec. 1104. Nothing contained in any title of this Act shall be construed as indicating an intent on the part of Congress to occupy the field in which any such title operates to the exclusion of State laws on the same subject matter, nor shall any provision of this Act be construed as invalidating any provision of State law unless such provision is inconsistent with any of the purposes of this Act, or any provision thereof.
Sec. 1105. There are hereby authorized to be appropriated such sums as are necessary to carry out the provisions of this Act.
Sec. 1106. If any provision of this Act or the application thereof to any person or circumstances is held invalid, the remainder of the Act and the application of the provision to other persons not similarly situated or to other circumstances shall not be affected thereby.
Approved July 2, 1964.
The Essential Documents of American History was compiled by Norman P. Desmarais and James H. McGovern of Providence College.
Also the Civil Rights Act
Also On Civil Rights
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Labor and Employment *
by W. Jonathan Martin II **
and Patricia-Anne Brownback ***
This Article focuses on case law concerning federal laws pertaining to
labor and employment.1 The following is a discussion of those opinions.2
II. SUPREME COURT DECISIONS
The Supreme Court of the United States issued multiple decisions
affecting labor and employment laws in 2020.
In Babb v. Wilkie,3 the plaintiff, Noris Babb, brought claims for
discrimination under Title VII of the Civil Rights Act of 1964 (Title VII)4
and the Age Discrimination in Employment Act (ADEA)5 against the
Secretary of the Veteran’s Administration, Robert Wilkie.6 The Supreme
Court took this case to determine whether the federal-sector provision,
* The Authors would like to thank Aaron Chang and Amanda Morejon for their hard
work on the Article.
** Equity Partner in the Firm of Constangy, Brooks, Smith & Prophete, LLP, Macon,
Georgia. University of Georgia (B.B.A., cum laude, 1991); Mercer University, Walter F.
George School of Law (J.D., magna cum laude, 1994). Member, Mercer Law Review (1992–
1994); Administrative Editor (1993–1994). Chapter Editor, THE DEVELOPING LABOR
LAW (John E. Higgins Jr. et al. eds., 7th ed. 2012 & Supps.). Member, State Bar of Georgia.
*** Associate in the Firm of Constangy, Brooks, Smith & Prophete, LLP, Macon, Georgia.
Mercer University (B.B.A., cum laude, 2013); Mercer University, Walter F. George School
of Law (J.D., cum laude, 2016). Member, Mercer Law Review (2014–2016); Member, State
Bar of Georgia.
1 For an analysis of labor and employment law during the prior survey period, see W.
Jonathan Martin II, et. al., Labor and Employment Law, Eleventh Circuit Survey Law, 71
MERCER L. REV. 1059 (2020).
2 This Article will focus solely on published opinions by the Eleventh Circuit because
these are binding precedent on the Court.
3 140 S.Ct. 1168 (2020).
4 Civil Rights Act of 1964 § 7, 42 U.S.C. §§ 2000e–2000e-17 (2019).
5 29 U.S.C. § 633(a).
6 Wilkie, 140 S.Ct. at 1171.
1220 MERCER LAW REVIEW [Vol. 72
§ 633a(a), of the ADEA requires the type of heightened “but-for”
causation used in standard ADEA cases.7 Ultimately, the Court rejected
using the heightened standard.8
The plaintiff claims that she was discriminated against in three
specific instances: (1) her “advanced scope” designation was taken away,
which made her eligible for promotion on the federal government’s
General Scale from a GS–12 to a GS–13; (2) she was denied training
opportunities and was passed over for positions in the hospital’s
anticoagulation clinic; and (3) her holiday pay was reduced when she was
placed in a new position. The plaintiff relied on evidence that supervisors
made age-based comments to support her allegations that these
personnel decisions were based at least in part on her age.9
The Supreme Court held that under the federal-sector provision of
the ADEA, plaintiffs must show that “age must be a but-for cause of
discrimination—that is, of differential treatment—but not necessarily a
but-for cause of a personnel action itself.”10 The Court analyzed the plain
meaning of the statutory language and determined that “shall be made
free from any discrimination based on age” was the determining phrase.11
The Court interpreted this to mean that the decision-making process for
personnel decisions must not involve any consideration of age.12
However, at the end of the day, the government will not be liable for
damages unless the federal employee can show that age discrimination
was the but-for cause of the employment action.13 So, if the government
can show that the employment decision would have been made regardless
of the employee’s age, the government will not be liable for any damages
to the employee.14
In Bostock v. Clayton County, Georgia,15 the Supreme Court ruled
that discrimination based on sexual orientation or gender identity is a
form of “sex” discrimination prohibited under Title VII.16 This decision
resolved three lower court decisions: Bostock v. Clayton County (Eleventh
9 Id. at 1171.
10 Id. at 1173.
11 Id. at 1172 (quoting 29 U.S.C. § 633a(a)).
12 Id. at 1173–74.
13 Id. at 1177–78.
14 Id. at 1178.
15 140 S. Ct. 1731 (2020).
16 Id. at 1746–47.
2021] LABOR AND EMPLOYMENT 1221
Circuit)17 and Zarda v. Altitude Express (Second Circuit),18 which
involved sexual orientation discrimination, and EEOC v. R.G. (Sixth
Circuit),19 which involved gender identity discrimination.20
The Supreme Court determined that Title VII incorporates a “but-for”
test when someone is treated differently, and rejected the “sole cause”
argument.21 Under the sole cause argument, employees cannot recover
unless they show their protected class was the only reason the employer
discriminated against them.22 Here, the Court said that an employee can
show a violation of Title VII by showing that sex was a but-for reason for
the adverse action.23 The Court explained, “[i]f the employer intentionally
relies in part on an individual employee’s sex when deciding to discharge
the employee—put differently, if changing the employee’s sex would have
yielded a different choice by the employer—a statutory violation has
occurred.”24 Specifically pertaining to sexual orientation and gender
identity, “[s]ex plays a necessary and undisguisable role in the decision,
[which is] exactly what Title VII forbids.”25 In rejecting the argument
that these protected characteristics are not spelled out in the statute,
Justice Gorsuch provided examples of other situations where protected
characteristics that were not specifically included in the statute, but are
incorporated under Title VII, such as sexual harassment and
“motherhood discrimination.”26 As a result of this decision, employees
may now bring charges with the Equal Employment Opportunity
Commission (EEOC) for discrimination based on sexual orientation and
gender identity, and can eventually bring lawsuits against their
employers for the same.
17 723 F. App’x 964 (11th Cir. 2018), rev’d and remanded sub nom. Bostock v. Clayton
Cnty., Georgia, 140 S. Ct. 1731 (2020).
18 883 F.3d 100 (2d Cir. 2018), aff’d sub nom. Bostock v. Clayton Cnty., Georgia, 140 S.
Ct. 1731 (2020).
19 884 F.3d 560 (6th Cir. 2018), aff’d sub nom. Bostock v. Clayton Cnty., Georgia, 140 S.
Ct. 1731 (2020).
20 Bostock, 140 S.Ct. at 1738.
21 Id. at 1744.
22 Id. at 1748.
23 Id. at 1742.
24 Id. at 1741.
25 Id. at 1737.
26 Bostock, 140 S.Ct. at 1747.
1222 MERCER LAW REVIEW [Vol. 72
III. AMERICANS WITH DISABILITIES ACT
The Americans with Disabilities Act (ADA)27 prohibits discrimination
by employers against qualified disabled individuals.28 A “disability”
under the ADA includes “a physical or mental impairment that
substantially limits one or more major life activities . . . a record of such
impairment; or being regarded as having such an impairment . . . .”29
Major life activities include, among others, “caring for oneself,
performing manual tasks, seeing, hearing, eating, sleeping, walking,
standing, lifting, bending, speaking, breathing, learning, reading,
concentrating, thinking, communicating, and working.”30
Cases brought under the ADA are examined under a burden-shifting
analysis, where the employee must first establish a prima facie case of
discrimination.31 To establish a prima facie case of ADA discrimination,
an employee must show “(1) a disability, (2) that she was otherwise
qualified to perform the job, and (3) that she was discriminated against
based upon the disability.”32 Once an employee has made out a prima
facie case of discrimination, the burden then shifts to the employer to
demonstrate a legitimate, nondiscriminatory reason for its actions.33 If
the employer meets this burden, the presumption of discrimination
disappears; however, the employee can still prove discrimination by
offering evidence demonstrating that the employer’s explanation is
In Munoz v. Selig Enterprises Inc.,35 the plaintiff was an executive
assistant that suffered from chronic health issues related to her
reproductive organs. She was eventually terminated after her
supervisors said that her work performance deteriorated as a result of
her medical conditions. She brought suit alleging Family and Medical
Leave Act (FMLA)36 interference and retaliation37 and a failure to
accommodate and retaliation under the ADA.38 The United States
27 42 U.S.C. §§ 12101–12113.
28 42 U.S.C. § 12101(b).
29 42 U.S.C. § 12102(1).
30 Id. at § 12102(2)(A).
31 Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1193 (11th Cir. 2004).
33 Collado v. United Parcel Serv., Co., 419 F.3d 1143, 1151 (11th Cir. 2005).
34 Americans with Disabilities Act Practice and Compliance Manual § 7:409 (2019);
Raytheon Co. v. Hernandez, 540 U.S. 44, 52 (2003).
35 981 F.3d 1265 (11th Cir. 2020).
36 29 U.S.C. §§ 2601–2654 (1993).
37 Discussed infra Section VI. Family and Medical Leave Act; Munoz, 981 F.3d. at 1271.
38 Munoz, 981 F.3d at 1271.
2021] LABOR AND EMPLOYMENT 1223
District Court for the Northern District of Georgia granted summary
judgment on her ADA claims because the plaintiff failed to show that she
was disabled within the meaning of the ADA.39
A disability under the ADA is defined as an impairment that
“substantially limits . . . a major life activity as compared to most people
in the general population.”40 This “include[s], but [is] not limited to,
caring for oneself, performing manual tasks, seeing, hearing, eating,
sleeping, walking, standing, lifting, bending, speaking, breathing,
learning, reading, concentrating, thinking, communicating, and
working.”41 It can also include the operation of a major bodily function,
such as in this case, the endocrine or reproductive organs.42
The United States Court of Appeals for the Eleventh Circuit agreed
with the district court that the plaintiff failed to establish that she was
disabled under the ADA.43 The plaintiff claimed, but failed to present
evidence on the record, that she was limited in the major life activities of
working and sleeping.44 Further, there was no record that Munoz’s health
was impaired; there was no evidence of time, frequency, and duration of
her impairments; and she relied only on her testimony as to the affects
the medical conditions had on her.45 The plaintiff did not present
sufficient evidence that her reproductive system conditions substantially
limited her ability to procreate.46 The plaintiff did not carry her burden
to show the first prong of the ADA analysis, that she was disabled under
the ADA, and thus the district court was correct to grant summary
judgment for this claim.47
IV. TITLE VII OF THE CIVIL RIGHTS ACT
Title VII of the Civil Rights Act (Title VII) does not allow employers
to discriminate based upon the protected classes of race, color, religion,
sex, or national origin.48 This includes limiting, segregating, or
classifying employees “in any way which would deprive or tend to deprive
any individual of employment opportunities or otherwise adversely affect
his status as an employee, because of such individual’s race, color,
39 Id. at 1272.
40 29 C.F.R. § 1630.2(j)(1)(ii).
41 42 U.S.C. § 12102(2)(A).
42 Id. at § 12102(2)(B).
43 Munoz, 981 F.3d at 1273–74.
44 Id. at 1273.
47 Id. at 1274.
48 42 U.S.C. § 2000e-2(a).
1224 MERCER LAW REVIEW [Vol. 72
religion, sex, or national origin.”49 For an employee to prove disparate
impact under Title VII, the employee must demonstrate that the
employer used a particular employment practice on the basis of one of
the above protected classes, and the employer cannot show that the
alleged practice is job-related and related with business necessity.50
“[T]he plaintiff in an employment discrimination lawsuit always has the
burden of demonstrating that, more probably than not, the employer took
an adverse employment action against him on the basis of a protected
personal characteristic.”51 The nature of discrimination suits generally
renders the “traditional framework” of direct evidence inadequate
because a plaintiff cannot easily prove “the state of mind of the person
making the employment decision.”52 “Furthermore, unlike some other
torts, in which state of mind can be inferred from the doing of the
forbidden act, the employer’s state of mind cannot be inferred solely from
the fact of the adverse employment action”53 Therefore, the Supreme
Court developed a three-part, burden-shifting analysis “[t]o make
matters somewhat easier for plaintiffs in employment discrimination
In McDonnell Douglas Corp. v. Green55 and Texas Department of
Community Affairs v. Burdine,56 the United States Supreme Court
established a three-step process for the “allocation of burdens and order
of presentation of proof” when a plaintiff relies on circumstantial
evidence to show discriminatory treatment.57 Under this framework, one
must first present a prima facie case of discrimination, and once a
plaintiff meets this initial burden, the burden of production “shift[s] to
the employer to articulate some legitimate, nondiscriminatory reason for
the employe[r]’s [action].”58 After this, the plaintiff who retains the
burden of persuasion throughout, must then “show by the preponderance
of the evidence that the defendant’s legitimate reasons were not the
reasons that actually motivated its conduct, that the reasons were merely
a ‘pretext for discrimination.’”59
50 42 U.S.C. § 2000e-2(k)(1)(A).
51 Wright v Southland Corp., 187 F.3d 1287, 1292 (11th Cir. 1999).
52 Id. at 1289–1290.
55 411 U.S. 792 (1973).
56 450 U.S. 248 (1981).
57 Grigsby v. Reynolds Metals Co., 821 F.2d 590, 594 (11th Cir. 1987).
58 McDonnell Douglas, 411 U.S. at 802.
59 MacPherson v. Univ. of Montevallo, 922 F.2d 766, 774 (11th Cir. 1991) (quoting Texas
Dep’t Cmty. Affairs, 450 U.S. at 253).
2021] LABOR AND EMPLOYMENT 1225
A. Harassment/Hostile Work Environment
In the Eleventh Circuit, for an employee to succeed on a hostile work
environment claim under Title VII, the employee must prove five
(1) she belongs to a protected class, (2) she was subjected to unwelcome
harassment, (3) the harassment was based on her race, (4) the
harassment was sufficiently severe or pervasive to alter the terms of
her employment and create a discriminatorily abusive working
environment, and (5) the employer is responsible for the environment
under a theory of vicarious or direct liability.60
In Fernandez v. Trees, Inc.,61 a Cuban employee sued his employer,
Trees, Inc. (the Company), alleging hostile work environment and
national origin discrimination.62 The United States District Court for the
Middle District of Florida granted summary judgment for the Company
on both claims determining that the alleged conduct was not severe and
pervasive under the hostile work environment analysis, and the plaintiff
failed to present a prima facie case for national origin discrimination.63
On appeal, the Eleventh Circuit affirmed the lower court on the national
origin discrimination claim, but overturned the hostile work
environment summary judgment ruling.64
The plaintiff worked as a foreman for a crew that provided utility
clearance and vegetation management for the Company. The plaintiff’s
supervisor got into an altercation with another Cuban employee, and
following that incident, the supervisor began using derogatory names
regarding Cuban employees he supervised.65 The plaintiff testified that
this name calling would occur on a near-daily basis, despite the plaintiff
asking his supervisor not to use these terms. After two months, the
plaintiff attempted to commit suicide at a job site by pouring gasoline on
himself and trying to light himself on fire. A co-worker prevented him
from doing so. The plaintiff was then terminated.66
In overturning the grant of summary judgment on the hostile work
environment claim, the Eleventh Circuit held that there was sufficient
evidence to raise a material issue of fact as to whether or not the
60 Smelter v. S. Home Care Services Inc., 904 F.3d 1276, 1284 (11th Cir. 2018).
61 961 F.3d 1148 (11th Cir. 2020).
62 Fernandez, 961 F.3d at 1152.
63 Id. at 1152.
64 Id. at 1156–57.
65 Id. at 1151. He would refer to them as “shitty Cubans,” “fucking Cubans,” and “crying,
whining Cubans.” Id.
66 Id. at 1151–52.
1226 MERCER LAW REVIEW [Vol. 72
supervisor’s conduct did rise to the level to create a hostile work
Not only must a plaintiff establish a hostile work environment as
outlined above, to show that harassment was sufficiently severe or
pervasive to alter the terms or conditions of his employment, an employee
must also prove that his work environment was both subjectively and
objectively hostile.68 “Turning to the objective inquiry, [the courts]
consider four factors when evaluating whether harassment was
objectively hostile: ‘(1) the frequency of the conduct; (2) the severity of the
conduct; (3) whether the conduct is physically threatening or
humiliating, or a mere offensive utterance; and (4) whether the conduct
unreasonably interferes with the employee’s job performance.’”69
Beginning with the first factor, the plaintiff provided ample evidence
that the harassment he faced was frequent since the derogatory
comments were made almost daily by the supervisor.70 As to the second
factor, the court found that a reasonable jury could conclude that the
harassment was sufficiently severe.71 The supervisor’s remarks
repeatedly targeted a protected group with vulgar and derogatory
language and continued unabated after complaints by the plaintiff and
his co-workers.72 This behavior likely meets the standard needed to
implicate Title VII where a workplace is “permeated with discriminatory
intimidation, ridicule and insult.”73 For the third factor, the plaintiff and
his co-workers testified that the degrading comments were not only
frequent, but also occurred in front of the whole crew, which was
especially degrading.74 Lastly, as to the fourth factor, the court held that
the evidence was not as clear or typical, but ultimately determined that
the plaintiff’s suicide attempt was not wholly unrelated to his job
Therefore, the court held that the plaintiff had raised enough of a
material issue to proceed with his hostile work environment claim.76
67 Id. at 1155–56.
68 Fernandez, 961 F.3d at 1153 (citing Mendoza v. Borden, Inc., 195 F.3d 1238, 1246
(11th Cir. 1999) (en banc)).
71 Id. at 1154.
72 Id. at 1155.
73 Id. at 1154 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
74 Id. at 1155.
76 Id. at 1155–56.
2021] LABOR AND EMPLOYMENT 1227
In Gogel v. Kia Motors Manufacturing Georgia,77 a divided, en banc
Eleventh Circuit upheld the termination of a human resource
professional alleged to have recruited employees to join her legal action
against the company.78 In so doing, the court of appeals held that “when
the means by which an employee expresses her opposition ‘so interferes
with the performance’ of her job duties ‘that it renders her ineffective in
the position for which she was employed,’ this oppositional conduct is not
protected under Title VII’s opposition clause.”79
Gogel was the team relations manager at Kia Motors Manufacturing
Georgia (KMMG). Her job duties included investigating allegations of
harassment and discrimination, resolving conflicts, and resolving
employee complaints to avoid litigation.80 Among other things, Gogel was
unhappy with the way she believed that KMMG handled a specific
investigation of employee Diana Ledbetter. She also alleged that KMMG
discriminated against its female employees. After complaining of
discrimination, Gogel filed a charge of discrimination with the EEOC on
her own behalf. KMMG did not take issue with this charge and, in fact,
gave Gogel a significant year-end bonus a month later.81
During the holiday shut-down, the company discovered that Ledbetter
filed a charge of discrimination using the same law firm that represented
Gogel. In addition, two of Gogel’s subordinates came forward claiming
that Gogel was recruiting them to join her lawsuit.82 Accordingly, KMMG
terminated her employment because it lost confidence in her abilities to
remain objective in her position.83
The Eleventh Circuit held that, although filing a charge of
discrimination on her own behalf was protected activity under Title VII,
soliciting another employee to sue the company was not protected under
Title VII given Gogel’s position within the company.84 The court
explained that soliciting Ledbetter to join her lawsuit and providing
Ledbetter with the name of a lawyer so conflicted with Gogel’s duties as
the team relations manager that the conduct rendered her ineffective in
her position as a matter of law.85 In so holding, the court observed:
77 967 F.3d 1121 (11th Cir. 2020).
78 Id. at 1127.
79 Id. at 1139.
80 Id. at 1145.
81 Id. 1153 (dissent).
82 Id. at 1130–31.
83 Id. at 1133.
84 Id. at 1150.
85 Id. at 1150.
1228 MERCER LAW REVIEW [Vol. 72
It is well established that the protection afforded by Title VII’s
opposition clause is not absolute. To qualify for protection under the
opposition clause, the manner in which an employee expresses her
opposition to an allegedly discriminatory employment practice must
be reasonable. When examining the reasonableness of the manner of
an employee’s conduct, we balanc[e] the purpose of the statute and the
need to protect individuals asserting their rights thereunder against
an employer’s legitimate demands for loyalty, cooperation and a
generally productive work environment.86
In Johnson v. Miami-Dade County,87 the Eleventh Circuit upheld the
United States District Court for the Southern District of Florida’s ruling
that the Miami-Dade County Police Department did not terminate a
police officer because he filed a charge with the EEOC; however, the court
of appeals ultimately vacated and remanded a portion of the lower court’s
ruling because the district court did not use the Lewis v. City of Union
City88 comparator standard.89
Harrius Johnson filed charges with the EEOC alleging race and sex
discrimination. After he was fired by the county, he sued, not only
alleging race discrimination, but also retaliation because he was
terminated after filing the EEOC charges.90 On appeal, the Eleventh
Circuit held that Johnson, in the absence of valid comparator evidence,
could not prove retaliation.91 In doing so, the court held that negative
monthly evaluations were not materially adverse employment actions,
and thus could not support a claim of retaliation.92 Additionally, his
supervisor had legitimate, nondiscriminatory reasons for terminating
him—he tried to circumvent the proper chain of command, and
“[p]romoting the chain of command and punishing insubordination are
legitimate, important concerns for a police force . . . .”93
In attempting to show pretext, the plaintiff only pointed to the fact
that the employer imposed discipline on him fifty-eight days after he filed
the EEOC complaint.94 The court held that other courts have found that
timeframes shorter than fifty-eight days, absent other evidence, were
86 Id. at 1139 (quoting Rollins v. Fla. Dep’t of Law Enf’t, 868 F.2d 397, 400–01 (11th Cir.
87 948 F.3d 1318 (11th Cir. 2020).
88 918 F.3d 1213 (11th Cir. 2019).
89 Johnson, 948 F.3d at 1322–23.
90 Id. at 1322–24.
91 Id. at 1326.
92 Id. at 1326–27.
93 Id. at 1327.
2021] LABOR AND EMPLOYMENT 1229
insufficient to establish pretext.95 Therefore, the Eleventh Circuit
partially upheld the lower court’s ruling but remanded part of it for
reconsideration of the plaintiff’s comparator evidence under the new
standard adopted in Lewis.96
In Knox v. Roper Pump Co.,97 an African American father and
daughter worked in the same facility for separate but related companies.
One day, while off work, they got into an altercation and the father hit
the daughter. When they returned to work, the daughter reported the
father for violation of the workplace violence policy, and the father was
suspended as a result. While suspended, he called the employee hotline
and reported that he believed he was being discriminated against
because of his race. He stated that Caucasian employees were not
punished for similar conduct. The company said he could come back to
work if he completed anger management while he was on unpaid leave.
While Knox was completing the leave, the company presented him with
a Last Chance Agreement (LCA). The LCA also included a release of all
claims, including those under Title VII. When the plaintiff refused to sign
the LCA, he was terminated. He brought claims of race discrimination
and retaliation.98 The district court granted summary judgment on both
claims, citing a lack of proper comparators for the discrimination claim
and lack of evidence that the complaint was the but-for cause of his
On appeal, the Eleventh Circuit held that the grant of summary
judgment on the discrimination claim was proper, but overturned
summary judgment for the retaliation claim.100 The court held that the
comparators presented by the plaintiff were not similarly situated in all
material respects as required under Lewis.101 However, the court found
that there was a question of fact as to whether or not the plaintiff’s
complaint of race discrimination was the but-for cause of his
termination.102 In coming to this conclusion, the court reasoned that the
release was included in the LCA because of the plaintiff’s complaint.103
Had the LCA not included the release, the plaintiff would have signed
95 Johnson, 948 F.3d at 1327–28.
96 Id. at 1322–23.
97 957 F.3d 1237 (11th Cir. 2020).
98 Knox, 957 F.3d at 1240.
99 Id. at 1244.
100 Id. at 1249.
101 Id. at 1247 (citing Lewis, 918 F.3d at 1218 (quotations omitted)).
102 Id. at 1245.
1230 MERCER LAW REVIEW [Vol. 72
the agreement, and would not have been terminated.104 Therefore,
through the chain of events, it is possible that but-for the plaintiff’s
complaint, he ultimately would not have been terminated.105
In Monaghan v. Worldpay US, Inc.,106 the Eleventh Circuit reversed
the district court’s grant of summary judgment to Worldpay US, Inc.
(Worldpay) for Title VII retaliation.107 Monaghan, a Caucasian woman
over forty, began as an executive assistant at Worldpay but was
terminated within ninety days. From the beginning, she was subjected to
racial and ageist comments by her African American supervisor. When
she complained to the executives about her supervisor, they told her just
to avoid her supervisor and to stop reporting the conduct. Monaghan’s
supervisor found out that she was complaining and threatened not only
her job, but also told her to “watch it,” because she knew where she lived.
Monaghan was eventually terminated, and she subsequently filed suit
claiming retaliation under Title VII.108 The district court granted
summary judgment for Worldpay and dismissed the claims.109 On appeal,
the Eleventh Circuit reversed the district court and clarified the standard
for retaliation in this circuit.110
In reaching its conclusion to reverse, the Eleventh Circuit reviewed
the standard of proof required for retaliation under Title VII.111 To grant
summary judgment to Worldpay, the trial court relied on the standard
outlined in Gowski v. Peake112 finding that the “mistreatment at issue
was ‘sufficiently severe or pervasive to alter the terms and conditions of
employment, thus constituting an adverse employment action.’”113 This
differs from the standard adopted by the Supreme Court in Burlington
Northern & Santa Fe Railway Co. v. White,114 and confirmed by the
Eleventh Circuit in Crawford v. Carroll.115 There, the standard outlined
for “retaliation is material if it ‘well might have dissuade[d] a reasonable
worker from making or supporting a charge of discrimination.’”116 Here,
Monaghan argued that the trial court should not have applied the more
105 Id. at 1245–46.
106 955 F.3d 855 (11th Cir. 2020).
107 Monaghan, 955 F.3d at 863.
108 Id. at 858–59.
109 Id. at 857.
111 Id. at 857.
112 682 F.3d 1299 (11th Cir. 2012).
113 Monaghan, 955 F.3d at 862 (citing to Gowski, 682 F.3d at 1312).
114 548 U.S. 53 (2006).
115 529 F.3d 961 (11th Cir. 2008).
116 Monaghan, 955 F.3d at 857 (quoting Crawford, 529 F.3d at 974).
2021] LABOR AND EMPLOYMENT 1231
stringent standard from Gowski, but rather should have applied the
Burlington Northern standard.117 The court reviewed the differences in
the two standards and determined that the Gowski court relied on
§ 2000e-2(a)(1)118 instead of § 2000e-3(a),119 a different section of Title
VII. The court ultimately held that Gowski was inconsistent with
Burlington Northern, and where there is a conflict, the court is required
to resolve a dispute in panel decisions in favor of the oldest one.120 In this
case, that would be Burlington Northern.121
Therefore, the court reversed the grant of summary judgment on the
grounds that Monaghan could clearly meet the standard under
Burlington Northern.122 The facts clearly showed that Monaghan was
subject to conduct from her supervisor that “well might have dissuaded
[her] from making or supporting a charge of discrimination,” and she
should be able to proceed to a trial.123
In Martin v. Financial Asset Management Systems Inc.,124 the court
upheld a grant of summary judgment for retaliation under Title VII
based on the fact that the decision maker in Martin’s termination was
not aware of her complaints of sex and race discrimination.125 Martin was
hired as an operations manager and later promoted to director of
operations. She claimed that, during meetings with the CEO about her
performance, he would scream, kick chairs, and bang on the table. She
filed a complaint with the EEOC, claiming that he did not behave this
way toward some of her white, male co-workers. This claim was mediated
and resolved, but about sixteen months later, the CEO berated her in
front of her peers. Following this incident, she complained to Human
Resources that the CEO was targeting her, and she needed to take a
couple of days off for her health. Human Resources told the CEO that she
thought she was being targeted for criticism and she needed to take some
time off. When the CEO could not get in touch with her following this
incident, he sent her a termination letter.126 She brought suit for
retaliation and the trial court granted summary judgment.127
117 Id. at 862.
118 42 U.S.C. § 2000e-2(a).
119 Id.; § 2000e-3(a).
120 Monaghan, 955 F.3d at 862.
122 Id. at 862–63.
124 959 F.3d 1048 (11th Cir. 2020).
125 Id. at 1050.
126 Martin, 959 F.3d at 1050–51.
127 Id. at 1051.
1232 MERCER LAW REVIEW [Vol. 72
The Eleventh Circuit affirmed the grant of summary judgment based
on the fact that the plaintiff did not present evidence that the CEO, the
decision maker, knew of the employee’s protected activity.128 The plaintiff
claimed that the CEO’s knowledge of her prior complaint (filing with the
EEOC) was sufficient to show that he was aware, but the court denied
this.129 First, the significant time lapse between the previous EEOC’s
charge/resolution and her termination weakened the claim of
retaliation.130 Second, and most importantly, the plaintiff did not claim
that she was fired for her earlier complaint, only the most recent
complaint.131 Since she is unable to connect the two events, the grant of
summary judgment was proper.132
V. PREGNANCY DISCRIMINATION ACT
The Pregnancy Discrimination Act (PDA)133 amended Title VII to
prohibit sex discrimination on the basis of pregnancy.134 It also prohibits
treating a woman (applicant or employee) unfavorably because of
childbirth or a medical condition related to pregnancy or childbirth.135
Like discrimination based on other characteristics under Title VII, for
claims under the PDA, courts use the three-part burden shifting analysis
under McDonnell Douglas where circumstantial evidence is used to prove
discrimination.136 In 2015, the Supreme Court in Young v. United Parcel
Service, Inc.137 adopted a new standard for evaluating the prima facie
case under the PDA.138
In Young, the Supreme Court adopted a new standard to be used in
PDA cases where indirect evidence of disparate treatment is used.139
Under the new framework, the plaintiff must show “that she belongs to
the protected class, that she sought accommodation, that the employer
did not accommodate her, and that the employer did accommodate others
‘similar in their ability or inability to work.’”140 The court rejected the
128 Id. at 1053.
129 Id. at 1055–56.
130 Id. at 1056.
131 Id. at 1057.
132 Martin, 959 F.3d at 1058.
133 42 U.S. C § 2000e(k).
136 McDonnell Douglas, 411 U.S. at 801–04.
137 575 U.S. 206 (2015).
138 Young, 575 U.S. at 229.
139 Id. at 228.
140 Id. at 229.
2021] LABOR AND EMPLOYMENT 1233
“similarly situated comparator” analysis for the purposes of the PDA.141
Rather, the courts should focus solely on whether or not the employees’
ability or inability to work is the same or similar—no matter the cause
or reason for their situation.142
In Durham v. Rural/Metro Corp.,143 the Eleventh Circuit reversed and
remanded the District Court for the Northern District of Alabama’s
decision because the district court erred in its application of Young to the
case at hand.144
Durham worked as an EMT for Rural/Metro Corporation. She became
pregnant, and her doctor recommended that she restrict herself to not
lifting more than fifty pounds. As an EMT, she was required to be able to
lift at least one hundred pounds at any point. She informed the company
of her restrictions and requested an accommodation, but the company’s
policy was that it would not grant these restrictions for employees who
were not injured on the job. In the past, the company allowed other EMTs
who were injured on the job to work light duty positions when they were
limited on how much they could lift. When the company refused to
accommodate Durham, she filed suit for discrimination under the
Pregnancy Discrimination Act.145 The district court granted summary
judgment on the grounds that the plaintiff did not present similarly
situated employees as comparators.146
Under the Young analysis, Durham’s reason for the lifting restriction
did not matter.147 Her inability to perform her position was the same as
those who were injured on the job, which satisfied the final prong of the
prima facie case.148 Because she did present similarly situated
comparators, the Eleventh Circuit sent the case back down to the district
court for re-examination.149
VI. FAMILY AND MEDICAL LEAVE ACT
The Family and Medical Leave Act (FMLA) prohibits employers from
interfering with, restraining, denying the exercise of (or the attempt to
exercise) any of the rights under the FMLA.150 The Eleventh Circuit
141 Id. at 217.
142 Id. at 219.
143 955 F.3d 1279 (11th Cir. 2020).
144 Durham, 955 F.3d at 1281.
145 Id. at 1281.
147 Id. at 1286–87.
149 Id. at 1287.
150 29 U.S.C. § 2615(a)(1).
1234 MERCER LAW REVIEW [Vol. 72
recognizes two claims from aggrieved employees: retaliation and
interference claims.151 Under the FMLA, an employee is entitled to take
twelve weeks of leave over a twelve month period for their own serious
health conditions, or the serious health conditions of family members,
and be reinstated upon their return from leave.152 For interference
claims, employees must prove that they were denied their benefits under
the FMLA.153 However, the denial of a benefit is not the only way
employers can interfere with the right of an employee; an employer may
also be responsible for interference where it discourages its employees
from using the leave to which they are entitled.154
As for retaliation, an employee must prove that the employer
“intentionally discriminated against him in the form of an adverse
employment action for having exercised an FMLA right.”155 This can be
shown either through direct or circumstantial evidence.156 Where there
is only circumstantial evidence, the courts will apply the three-part
burden shifting analysis outlined in McDonnell Douglas.157 First, the
plaintiff must show the three elements of a prima facie case: “(1) [he]
engaged in [a] statutorily protected activity, (2) [he] suffered an adverse
employment action, and (3) the decision was causally related to the
protected activity.”158 If the plaintiff can do this, the burden shifts to the
employer to provide a legitimate, nondiscriminatory reason for the
employment decision.159 If the employer can do that, then the burden
shifts back to the plaintiff to show pretext, or that the proffered reason is
In Munoz v. Selig Enterprises Inc., as outlined above, the plaintiff
suffered from reproductive system conditions that caused her to be tardy
and miss work. She was ultimately terminated for performance issues.161
Like her ADA claims, the district court granted summary judgment on
her FMLA claims.162
151 Jones v. Gulf Coast Health Care of Del., LLC, 854 F.3d 1261, 1267 (11th Cir. 2017).
155 Id. at 1270 (citing Strickland v. Water Works & Sewer Bd. of City of Birmingham,
239 F.3d 1199, 1207 (11th Cir. 2001)).
156 Id. at 1270.
157 Id. at 1271.
158 Id. (quoting Shaaf v. SmithKline Beecham Corp., 602 F.3d 1236, 1243 (2010)).
159 Id. at 1271.
161 Munoz, 981 F.3d at 1269–71.
162 Id. at 1272.
2021] LABOR AND EMPLOYMENT 1235
The Eleventh Circuit upheld the grant of summary judgment as to
the plaintiff’s interference claims reasoning that the plaintiff did not
show she was harmed by the company’s failure to notify her of her FMLA
rights.163 Under the FMLA, the interference must result in damages for
the employee.164 Here, the plaintiff would have needed to present
evidence that her termination was a result of the company’s failure to
give her FMLA rights—she did not show this and thus the court said her
However, as to the retaliation claim, the Eleventh Circuit reversed
and remanded the district court, finding that the plaintiff presented
questions of fact as to whether or not she was terminated for attempting
to exercise her rights under FMLA.166 The plaintiff properly provided
notice to her employer that she would need leave in the future.167 Shortly
after she gave this notice, her boss downloaded software to track her off-
task time, and then after her treatment began, drafted a memo outlining
her performance deficiencies.168 The court held that the plaintiff met her
burden to show pretext by showing that her supervisors made many
negative comments about her leave.169 Therefore, the court held that a
jury could reasonably conclude that the plaintiff was terminated because
of her complaints and/or requests for leave.170
VII. FAIR LABOR STANDARDS ACT
The Fair Labor Standards Act (FLSA)171 requires employers to pay
covered employees engaged in commerce a minimum of $7.25 for all
hours worked.172 Additionally, if an employee works over forty hours in
any workweek, an employer is required to pay that employee overtime at
a rate of one and one-half times the employee’s regular rate.173 Employees
can be “covered” by the FLSA in one of two ways: enterprise coverage or
individual coverage.174 For enterprise coverage, an employee must work
for an employer that has at least two employees and has an annual dollar
163 Id. at 1275.
164 29 U.S.C. § 2617.
165 Munoz, at 1274–75.
166 Id. at 1282.
167 Id. at 1276–77.
168 Id. at 1270.
169 Id. at 1278.
171 29 U.S.C. §§ 201–219.
172 29 U.S.C. § 206(a).
173 29 U.S.C. § 207(a)(1).
174 29 U.S.C. § 203(s).
1236 MERCER LAW REVIEW [Vol. 72
of sales or business done of at least $500,000.175 Employees may be
covered individually if their work regularly involves them in commerce
between the states, and they are “engaged in commerce or in the
production of goods for commerce.”176
In Vasconcelo v. Miami Auto Max, Inc.,177 the plaintiff brought claims
against his employer for failure to pay wages correctly, seeking $12,000
in back pay plus liquidated damages. The defendant made an Offer of
Judgment under Rule 68 of the Rules of Civil Procedure178 for $3,500, but
the plaintiff turned down this offer. The case went to trial, where the
plaintiff was awarded $194.40. As the prevailing party, he was entitled
to recover his attorney’s fees, which he claimed totaled $60,000. The
district court reduced the attorney fee’s award to $13,038 (37%) and
taxed him $1,340.00 for costs incurred by the defendant after the Rule 68
offer.179 The plaintiff appealed the reduction of attorney’s fees and
taxation of costs.180
The Eleventh Circuit upheld the district court’s reduction of fees and
taxation of costs.181 The court reasoned that the trial court is well within
its discretion to reduce the fees, and the decision will not be set aside
unless it is clear abuse.182 As for the taxation of costs, the plaintiff argued
that the Offer of Judgment was ambiguous because it was not clear
whether it included attorneys’ fees and costs.183 The court rejected this
argument stating that it was clear from a plain reading of the offer that
attorneys’ fees were not included, and even if it was ambiguous, it would
have been construed against the drafter.184
As this Article demonstrates, the issues arising under labor and
employment law are becoming progressively more challenging each year.
Regardless of whether a practitioner specializes in state, federal,
administrative, or other matters pertaining to labor and employment, it
is important to recognize and stay abreast of the ever-evolving trends,
policies, cases, and federal guidelines. How the law will evolve, and
177 981 F.3d 934 (11th Cir. 2020).
178 FED. R. CIV. P. 68.
179 Vasconcelo, 981 F.3d at 937–39.
180 Id. at 939.
181 Id. at 940, 944.
182 Id. at 940.
183 Id. at 943.
2021] LABOR AND EMPLOYMENT 1237
change, remains to be seen. For now, the cases above give practitioners
some guidance for the time being.
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GIVING THE EQUAL RIGHTS AMENDMENT
TEETH: A PROPOSAL FOR GENDER
EQUALITY LEGISLATION MODELED
AFTER THE CIVIL RIGHTS ACT OF 1964
Contrary to the belief of eighty percent of Americans,1 the
U.S. Constitution does not prohibit discrimination on the basis of
sex.2 The effect of this lack of protection can be seen in every
corner of our society, including economic inequalities and a lack
of representation in leadership.3 For almost one hundred years,
women’s organizations and activists have attempted to rectify
this by advocating for the inclusion of an Equal Rights
Amendment (ERA) in the Constitution.4 In the past few years,
there has been a revived push for the ERA due to the
amendment’s first congressional hearing in thirty-six years,5 its
ratification by three states since 2017,6 and public support from
† Symposium Editor, St. John’s Law Review, J.D., 2021, St. John’s University
School of Law, B.A., 2016, Loyola University Chicago. I would like to thank every
woman who has shown me the power of using one’s strengths to make the world a
better place – in particular, Professor Rosemary Salomone for her guidance during
this writing process and the late Justice Ruth Bader Ginsburg for inspiring my
interest in this topic.
1 Press Release, ERA Coal., Americans—by 94%—Overwhelmingly Support the
Equal Rights Amendment (ERA) (June 17, 2016).
2 See Ann Bartow, An Equal Rights Amendment to Make Women Human, 78
TENN. L. REV. 839, 842–44 (2011).
3 See WORLD ECON. FORUM, THE GLOBAL GENDER GAP REPORT 25 (2018),
4 See Jenna Barnett, The Equal Rights Amendment Inches Forward: A 100-Year
Fight for Gender Equality, SOJOURNERS (Apr. 30, 2019),
5 See Equal Rights Amendment Proposals: Hearing on H.J. Res. 79 and H.J.
Res. 35 Before the Subcomm. on the Constitution, Civil Rights, and Civil Liberties of
the H. Comm. on the Judiciary, 116th Cong. (Apr. 30, 2019) (statement of Rep.
6 ERA COALITION, http://www.eracoalition.org/ [https://perma.cc/6KUP-J62E]
(last visited June 20, 2021).
1014 ST. JOHN’S LAW REVIEW [Vol. 94:1013
high-profile politicians, celebrities, and activists.7 However, the
ERA is only the first step.
Part I of this Note will explain the current sources of
protection against sex discrimination in the Constitution and
outline the historical background necessary for understanding
how this level of protection was achieved.8 Part II will illustrate
why the status of women in the United States today still calls for
stronger constitutional protections, including why the current
measures are insufficient. Part III will then discuss how, even
though the ERA is a vital first step, states’ equal rights
amendments and Fourteenth amendment jurisprudence teach us
that its passage alone will not remedy the gender inequality in
our country. Finally, Part IV will recommend legislative
measures necessary to give the ERA “teeth,” modeled after the
Civil Rights Act of 1964.9
I. AMERICAN WOMEN HAVE ALWAYS NEEDED THE ERA
A. The Original Push for the ERA
The Founders of the United States never intended to extend
the rights guaranteed in our Constitution to women. During the
drafting of our founding document, Abigail Adams wrote to her
husband, John Adams, asking that he remember the women of
the colonies when establishing the new nation.10 John Adams,
our future second president, responded that the Founders
“kn[ew] better than to repeal our Masculine systems.”11 While
some argue that women were later guaranteed equality in the
7 See Mary Harris, What Next: An Equal Rights Amendment True Believer on
Why She’s Optimistic, SLATE (May 7, 2019, 5:00 AM), https://slate.com/news-and-
[https://perma.cc/SFW7-MN37]; see also Barnett, supra note 4.
8 Throughout this Note, the author uses both “sex” and “gender”
interchangeably because, while the ERA language uses the word “sex,” “gender” is
usually more appropriate when describing the inequalities that persist in our
9 See generally Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (1964)
(legislating voting rights, discrimination in places of public accommodation, the
desegregation of public facilities, the desegregation of public schools, discrimination
in federally assisted programs, and equal employment opportunities).
10 See Abigail and John Adams Converse on Women’s Rights, 1776, THE AM.
YAWP READER, https://www.americanyawp.com/reader/the-american-
[https://perma.cc/PZM3-3YG7] (last visited June 20, 2021).
2020] GIVING THE EQUAL RIGHTS AMENDMENT TEETH 1015
Constitution in the form of the Fourteenth Amendment,12 former
Supreme Court Justice Antonin Scalia put that theory to rest in
2011 when he acknowledged that the Constitution does not bar
Following the procurement of the right to vote in 1919,
women’s rights organizations worked quickly to introduce the
first ERA in Congress in 1923.14 For almost fifty years, the ERA
was reintroduced in every session of Congress but continually
received immense pushback, particularly from labor unions who
sought to protect women from harsh work conditions.15 Finally,
in 1972, due in large part to the passage of the Civil Rights Act of
1964 and the dawn of the second wave of feminism,16 the ERA
was finally sent to the states for ratification, reading very simply:
Equality of rights under the law shall not be denied or abridged
by the United States or by any State on account of sex . . . . The
Congress shall have the power to enforce, by appropriate
legislation, the provisions of this article . . . . This amendment
shall take effect two years after the date of ratification.17
Proponents of the ERA articulated two principal benefits of
this language. “First, it would impel federal and state
legislatures to undertake long overdue statutory reform; second,
it would provide a firm conceptual foundation for judicial
development of a coherent opinion pattern.”18
To become an official amendment to the Constitution, thirty-
eight state legislatures needed to ratify the ERA within seven
12 See Reva B. Siegel, Constitutional Culture, Social Movement Conflict and
Constitutional Change: The Case of the De Facto ERA, 94 CALIF. L. REV. 1323, 1333
13 See Interview by Calvin Massey with Justice Antonin Scalia, in S.F., Cal.
(Mar. 21, 2011) (“Certainly the Constitution does not require discrimination on the
basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought
that that’s what it meant. Nobody ever voted for that. If the current society wants to
outlaw discrimination by sex, hey we have things called legislatures, and they enact
things called laws.”).
14 See Barnett, supra note 4; see also S.J. Res. 21, 68th Cong. (1923).
15 See JANE J. MANSBRIDGE, WHY WE LOST THE ERA 9 (1986); Alex Cohen &
Wilfred U. Codrington III, The Equal Rights Amendment Explained, BRENNAN CTR.
(Jan. 23, 2020), https://www.brennancenter.org/our-work/research-reports/equal-
16 See MANSBRIDGE, supra note 15 at 10; see also Cohen & Codrington, supra
17 H.R.J. Res. 208, 92nd Cong. (1972).
18 Ruth Bader Ginsburg, The Equal Rights Amendment Is the Way, 1 HARV.
WOMEN’S L.J. 19, 21 (1978).
1016 ST. JOHN’S LAW REVIEW [Vol. 94:1013
years.19 During the first year, twenty-two states ratified the
ERA.20 Unfortunately, momentum soon slowed due to
conservative pushback and a campaign of misinformation, both
led by Phyllis Schlafly, the ERA’s most formidable opponent.21
As president of the National Federation of Republican Women,
Schlafly organized conservative, religious women from across the
country to form a single-issue national campaign known as STOP
(Stop Taking Our Privileges) ERA.22 By meeting individually
with their state legislators, STOP ERA members planted seeds of
doubt about the supposed legal and social consequences of
constitutionally mandated sex equality.23 As a result, even after
the deadline for ratification was extended to 1982, it came and
went with only 35 states on board24 despite nationwide polls at
the time indicating fifty-seven percent of Americans supported
B. Finding a New Path Towards Equality
Following this defeat, women’s rights organizations shifted
their focus to fighting for a guarantee against sex discrimination
within the Constitution’s existing language.26 This strategy led
to an initial victory in 1976, due in large part to Ruth Bader
Ginsburg’s work as an attorney.27 In Craig v. Boren, Ginsburg
19 The sunset date, a rare provision for constitutional amendments, was the
result of a compromise between the House and Senate. See Jeffrey Rosen, We the
People Podcast: Can the Equal Rights Amendment be Revived?, NAT’L CONSTITUTION
CTR. (Feb. 7, 2019), https://constitutioncenter.org/debate/podcasts
20 THOMAS NEALE, CONG. RESEARCH SERV., R42979, THE PROPOSED EQUAL
RIGHTS AMENDMENT: CONTEMPORARY RATIFICATION ISSUES 14 (2019).
21 See Phyllis Schlafly, What’s Wrong with “Equal Rights” for Women?, PHYLLIS
SCHLAFLY REP. (Feb. 1972), https://eagleforum.org/wp-content/uploads/2017/03/PSR-
Feb1972.pdf [https://perma.cc/QB9X-KBS6] (debuting many of her infamous talking
points, including that “[w]omen[ ] libbers . . . are promoting abortions instead of
families”); see also Douglas Martin, Phyllis Schlafly, ‘First Lady’ of a Political March
to the Right, Dies at 92, N.Y. TIMES (Sept. 5, 2016),
22 See DONALD T. CRITCHLOW, PHYLLIS SCHLAFLY AND GRASSROOTS
CONSERVATISM: A WOMAN’S CRUSADE 219–20 (2nd prtg. 2008).
23 See id.
24 THOMAS NEALE, CONG. RESEARCH SERV., R42979, THE PROPOSED EQUAL
RIGHTS AMENDMENT: CONTEMPORARY RATIFICATION ISSUES 15–16 (2019).
25 See MANSBRIDGE, supra note 15, at 14.
26 See ROSEMARY C. SALOMONE, EQUAL EDUCATION UNDER LAW 116–17 (1986).
27 See S.M., How Ruth Bader Ginsburg Became a Trailblazer for Gender
Equality, ECONOMIST (May 14, 2018), https://www.economist.com/democracy-in-
2020] GIVING THE EQUAL RIGHTS AMENDMENT TEETH 1017
argued that a law which set a higher legal drinking age for men
was an unconstitutional sex classification because the state’s law
did little to further the stated interest in decreasing drunk
driving incidents.28 The Supreme Court agreed with Ginsburg
and, as a result, ruled that the Fourteenth Amendment’s Equal
Protection Clause required that laws which distinguish on the
basis of sex must be subject to intermediate, rather than
minimal, scrutiny.29 This meant that any law that was applied
differently on the basis of sex had to further “important
governmental objectives” by means “substantially related” to
those objectives.30 Prior to Craig, a sex classification only had to
be rationally related to a legitimate government interest—a
much lower standard.31
Twenty years later, Justice Ginsburg’s opinion in United
States v. Virginia slightly strengthened the standard of review
for sex classifications.32 In holding that the Virginia Military
Institute could not bar women from attending if it accepted state
funds, the Court determined that a sex classification will only be
upheld if the justification for such classification is “exceedingly
persuasive” and does not rely on “overbroad generalizations
about the different talents, capacities, or preferences of males
and females.”33 Reaching this milestone was the result of a hard-
fought, strategic battle by women’s rights organizations after the
apparent failure of the ERA.34 And, while some view the
holdings in Craig and Virginia as establishing a de facto ERA,35
Section II.B will explain why this is not the case.36
C. A Newfound Hope for ERA Proponents
Despite it being almost thirty years since the ratification
deadline passed, supporters are currently exploring two
divergent but harmonious avenues for removing this deadline:
28 See 429 U.S. 190, 204 (1976).
29 See id. at 218–19 (Rehnquist, C.J., dissenting).
30 Id. at 197 (majority opinion).
31 See Reed v. Reed, 404 U.S. 71, 76 (1971).
32 See generally 518 U.S. 515 (1996).
33 Id. at 532–33.
34 See Christina Gleason, United States v. Virginia: Skeptical Scrutiny and the
Future of Gender Discrimination Law, 70 ST. JOHN’S L. REV. 801, 802 n.5 (1996).
35 See Siegel, supra note 12, at 1333 (quoting Michael C. Dorf, Equal Protection
Incorporation, 88 VA. L. REV. 951, 984–85 (2002)).
36 See infra Section II.B.
1018 ST. JOHN’S LAW REVIEW [Vol. 94:1013
one legislative and the other judicial.37 First, the House of
Representatives passed a bill in February 2020 which, if it
became law, would retroactively remove the ratification deadline
of the 1972 ERA.38 In January 2020, Virginia became the thirty-
eighth state to ratify the ERA, rounding out the three-quarters of
the states needed for constitutional ratification. 39 Consequently,
upon Congress’s removal of the deadline, the ERA could
immediately become the twenty-eighth amendment to our
Constitution.40 Second, a coalition of states, led by Illinois,
Nevada, and Virginia—the three most recent states to ratify the
ERA—are challenging the validity of the ratification deadline in
court.41 In an Amici Curiae Brief, New York Attorney General
Letitia James, joined by nineteen states’ attorneys general,
argues Article V did not authorize Congress to impose such a
deadline in the first place.42 If the District Court for the District
of Columbia agrees, it could require the national archivist to
publish and certify the ERA as our Constitution’s twenty-eighth
As the ERA’s history illustrates, every inch of progress
towards gender equality has been an uphill battle. Despite this,
the progress has been significant enough that political pundits
and legal scholars alike have questioned whether American
women still need the ERA.43 The answer to this question should
37 This Note proceeds under the assumption that the ratification of the ERA is,
or will shortly be, politically feasible as the result of one of these paths.
38 See H.R.J. Res. 79, 116th Cong. (2020); see also Danielle Kurtzleben, House
Votes to Revive Equal Rights Amendment, Removing Ratification Deadline, NPR
(Feb. 13, 2020, 12:35 PM), https://www.npr.org/2020/02/13/805647054/house-votes-
39 See ERA COALITION, supra note 6.
40 See Kurtzleben, supra note 38 (also mentioning that some, including Justice
Ruth Bader Ginsburg, have doubts about the legality of states ratifying the ERA
after 1982, even if Congress votes to remove the deadline).
41 See Ryan W. Miller, 3 State Attorneys General To Sue To Recognize ERA as
28th Amendment, USA TODAY (Jan. 30, 2020),
42 See Brief for the States of New York, et al. as Amici Curiae Supporting
Petitioners at 5, 21, Virginia v. Ferriero, No. 1:20-cv-242-RC (D.D.C. June 29, 2020)
(also arguing the attempts of states to rescind their ratifications are invalid).
43 See Susan Chira, Do American Women Still Need an Equal Rights
Amendment?, N.Y. TIMES (Feb. 16, 2019),
amendment.html [https://perma.cc/JA4S-T24S]; see also Siegel, supra note 12, at
2020] GIVING THE EQUAL RIGHTS AMENDMENT TEETH 1019
be the same as the answer to the question of whether gender
inequality persists in this country.
II. AMERICAN WOMEN STILL NEED THE ERA
A. The State of Gender Inequality in the United States
Put quite simply: gender equality is far from a reality.
Women are paid less than their male counterparts,44 but pay
more for consumer goods and services.45 Women constitute about
51% of the population46 but are a minority in governmental
bodies,47 executive positions,48 the news media,49 and the tech
world.50 Women are also disproportionately victims of violence in
the public and private sphere.51 Despite incremental
44 See Nikki Graf, Anna Brown & Eileen Patten, The narrowing, but persistent,
gender gap in pay, PEW RSCH. CTR. (Mar. 22, 2019),
45 See Candice Elliot, The Pink Tax: What’s the Cost of Being a Female Consumer
in 2020?, LISTEN MONEY MATTERS, https://www.listenmoneymatters.com/the-pink-
tax/ [https://perma.cc/W8UN-7CQG] (last updated Jan. 25, 2020).
46 See Percent of Female Population in United States Labor Force, U.S. CENSUS
[https://perma.cc/5SJQ-LEJM] (last visited June 20, 2021) (reporting that women
comprise 50.8% of the United States population).
47 See Claire Hansen, 116th Congress by Party, Race, Gender, and Religion, U.S.
NEWS (Dec. 19, 2019), https://www.usnews.com/news/politics/slideshows/116th-
congress-by-party-race-gender-and-religion (noting that women make up 25% of the
Senate and 23% of the House).
48 See Claire Zillman, The Fortune 500 Has More Female CEOs than Ever
Before, FORTUNE, (May 16, 2019), https://fortune.com/2019/05/16/fortune-500-female-
ceos/ [https://perma.cc/9LSV-HGZ5] (reporting only 6.6% of companies are led by
49 See Press Release, Women’s Media Ctr., The Status of Women in the U.S.
Media 2019 (Feb. 21, 2019) (reporting that women make up 41.7% of the overall
workforce in newsrooms but are owners of only 7.4% of commercial TV stations and
managers of only 17.4% of AM and FM stations).
50 See Kasee Bailey, The State of Women in Tech 2020, DREAMHOST, Mar. 6,
51 See CYNTHIA HESS ET AL., INST. FOR WOMEN’S POLICY RESEARCH, THE
STATUS OF WOMEN IN THE STATES: 2015 237 (2015), https://iwpr.org/wp-
(“[N]early one in three women [ ] experiences physical violence by an intimate
partner at some point in her lifetime.”); see also Terence Monmaney, New Poll of
U.S. Troops and Veterans Reveals Their Thoughts on Current Military Policies,
SMITHSONIAN MAG. (Jan. 2019), https://www.smithsonianmag.com/arts-culture/new-
[https://perma.cc/MFC7-DDE6] (reporting that 66% of women in the military have
1020 ST. JOHN’S LAW REVIEW [Vol. 94:1013
improvements, in 2018, the United States dropped from 49th to
51st out of 149 countries in terms of gender equality.52 The
coronavirus pandemic only exacerbated these disparities.53
While the gender gap permeates every corner of our society,
from gender-based violence to representation in political and
leadership positions, this Note will focus primarily on women’s
economic health and opportunity. For example, in 2014, the
median woman earned only 82.9% of the median man’s hourly
wages—a statistic that is even more stark for women of color and
affects even the most educated workers.54 Several factors
contribute to this pay inequity, including the undervaluation of
jobs overwhelmingly held by women,55 the tendency of the
majority of family responsibilities to fall on women, 56 and the
fact that, even when a woman continues to work after having
children, she will likely “earn[ ] [three] percent less than women
who do not have children [while] fathers . . . earn on average
[fifteen] percent more than men without children.”57
This pay inequity has a glaring effect on families. The
majority of children in poverty—56.1%—live in female-headed
households.58 Even “average American middle-class families
personally experienced sexual assault or sexual harassment compared to 6% of
52 See WORLD ECON. FORUM, supra note 3, at 25 (explaining that the United
States made modest improvements toward economic equality but experienced a
“directional reversal in education and virtually no change” in terms of political
53 See e.g. Amanda Taub, Pandemic Will “Take Our Women 10 Years Back” in
the Workplace, N.Y. TIMES (Sept. 26, 2020),
[https://perma.cc/28NA-3ADS]; Megan L. Evans, Margo Lindauer & Maureen E.
Farrell, A Pandemic within a Pandemic—Intimate Partner Violence during Covid-
19, 383 NEW ENG. J. MED. 2302 (2020).
54 See Alyssa Davis & Elise Gould, Closing the Pay Gap and Beyond: A
Comprehensive Strategy for Improving Economic Security for Women and Families
5–7 (Econ. Policy Inst., Briefing Paper No. 412, 2015),
55 JOINT ECON. COMM., 114TH CONG., GENDER PAY INEQUALITY: CONSEQUENCES
FOR WOMEN, FAMILIES AND THE ECONOMY 17–18 (Apr. 2016) (“Women tend to work
in professions that overwhelmingly employ females, including nursing, teaching and
office and administrative support positions. These professions have traditionally
paid lower wages than male-dominated professions.”) (footnote omitted).
56 See id. at 13 (“39 percent of mothers report having taken a significant amount
of time off to care for a child or family member, and 27 percent report having quit
their job” compared to 24 and 10 percent, respectively, for fathers.).
57 See id. at 14 (emphasis added).
58 See Catharine A. MacKinnon, Toward a Renewed Equal Rights Amendment:
Now More Than Ever, 37 HARV. J.L & GENDER 569, 573 n.19 (2014).
2020] GIVING THE EQUAL RIGHTS AMENDMENT TEETH 1021
cannot afford housing, education, healthcare, and other basic
costs unless both parents work.”59 So, the achievement of
economic equality would not just benefit women, but it would
also lift up children and families. Additionally, advancing
women’s economic equality would boost the entire country’s
economy.60 For example, a 2016 study found that “[c]losing
the . . . gender gap [in the workplace] could deliver $2.1 trillion to
$4.3 trillion of additional GDP in 2025.”61 As these numbers only
begin to show, our devaluation of women and women’s work has
B. Current Remedial Paths Are Insufficient
The persistence of these inequalities is proof that the current
system of piecemeal statutes and Fourteenth Amendment
jurisprudence is not sufficient. Current statutory measures and
subsequent court interpretations are insufficient for several
reasons. First, legislation is easily repealed because no Congress
is bound by the laws of a prior Congress.62 Second, Congress is
limited in the affirmative steps it may take under the Fourteenth
Amendment to promote gender equality. For example, in United
States v. Morrison, the Supreme Court struck down part of the
Violence Against Women Act that placed civil penalties on
gender-motivated crimes.63 The Court determined that Congress
exceeded its power under the Fourteenth Amendment by
attempting to reach purely private conduct based on the
disparate impact of such conduct.64
Third, legal challenges to sex discrimination brought under
the Fourteenth Amendment’s Equal Protection Clause have
59 Julie C. Suk, An Equal Rights Amendment for the Twenty-First Century:
Bringing Global Constitutionalism Home, 28 YALE J.L. & FEMINISM 381, 428 (2017).
60 See generally MCKINSEY GLOB. INST., THE POWER OF PARITY: ADVANCING
WOMEN’S EQUALITY IN THE UNITED STATES (2016) (explaining that the wide range in
possible GDP growth depends on whether all states matched the current standards
set by the highest performing states in gender equality or whether all states
achieved true gender parity).
61 See id. at 2.
62 See When Does Congress Repeal Legislation? A New Dataset of Major Repeals
from 1877–2012 Provides Answers, LEGBRANCH (Oct. 19, 2015),
A5YM] (“Congress regularly voids its own statutes via repeals.”).
63 See 529 U.S. 598, 627 (2000).
64 See id. at 621.
1022 ST. JOHN’S LAW REVIEW [Vol. 94:1013
reached their limit.65 This is, in large part, because “[m]ost sex
discrimination is done not by people thinking bad thoughts about
women, as the Fourteenth Amendment now requires in order for
discrimination to be proven, but by people following schemas and
routines and habits and biases ingrained for centuries.”66 Four
primary factors have limited the Equal Protection Clause’s
protections against sex discrimination:
(1) the requirement of state action; (2) the failure of the
Supreme Court to subject claims of sex discrimination to the
“strict scrutiny” standard of review applied to claims of race
discrimination; (3) the Supreme Court’s application of a formal
equality model of analysis that further reduces the protection
afforded claims of sex discrimination when men and women are
deemed not similarly situated; and (4) the unwillingness of the
Supreme Court, absent proof of intentional discrimination, to
closely scrutinize facially neutral governmental regulations or
policies that disparately impact women.67
Finally, piecemeal legislation does little to remedy societal
inequalities when they are grounded in a broken system. “Legal
equality guarantees have been in effect in the United States for a
long time without producing equality in social life.”68 The ERA
would provide the opportunity for a more permanent,
comprehensive, aggressive, and coherent approach to achieving
gender equality in the United States.
As mentioned above, the ERA would fill these gaps through
two primary avenues.69 First, the ERA would provide the
foundation for courts to closely scrutinize and invalidate current
discriminatory laws and practices that they have been unwilling
or unable to reach through the Equal Protection Clause.70 But,
merely battling out the limits of the ERA in courts will not bring
about the lasting change required for the realization of gender
equality.71 So, second, and more importantly, the ERA’s
enforcement clause would create the opportunity for Congress to
65 See Linda J. Wharton, State Equal Rights Amendments Revisited: Evaluating
Their Effectiveness in Advancing Protection Against Sex Discrimination, 36 RUTGERS
L.J. 1201, 1211 (2005).
66 See MacKinnon, supra note 58, at 572.
67 See Wharton, supra note 65, at 1205.
68 See MacKinnon, supra note 58, at 570.
69 See supra Section I.A.
70 See Ginsburg, supra note 18, at 21, 25–26.
71 See SALOMONE, supra note 26, at 57 (“Using courts to make things happen in
the real world ultimately pits the victorious litigant against those who are inclined
2020] GIVING THE EQUAL RIGHTS AMENDMENT TEETH 1023
undertake significant statutory reform.72 The effectiveness of the
ERA is dependent on Congress seizing this opportunity.
III. THE ERA CANNOT STAND ALONE
A. Lessons from State Equal Rights Amendments
While the ERA is a vital next step towards equality, it
cannot be the only step. “Constitutional sex equality provisions
are neither necessary nor sufficient to reducing gender gaps.”73
Consider that, in 2016, Norway, which does not explicitly
guarantee sex equality in its constitution, was found to
consistently rank in the top three countries succeeding at closing
the gender gap while Chad, which does have a sex equality
provision in its constitution, ranked 140th for gender equality.74
Similarly, Maine does not provide for sex equality in its
constitution while Utah does and they are, respectively, ranked
first and fiftieth for gender equality in the United States.75
Nevertheless, this does not mean that state constitutional ERAs
have been wholly ineffective.76
Currently, twenty-five states have express protections
against sex discrimination in their constitutions.77 Some scholars
argue “that state ERAs have been used to benefit men at the
expense of women and that they have ultimately been ineffective
‘except as symbols’ in advancing women’s equality.”78 Others
argue, more persuasively, that state ERAs are effective because
72 See Ginsburg, supra note 18, at 23, 26.
73 Suk, supra note 59, at 399.
74 See id. (exploring the structure and effect of various countries’ constitutional
gender equality provisions).
75 See Adam McCann, Best & Worst States for Women’s Equality, WALLETHUB
(Aug. 20, 2019), https://wallethub.com/edu/best-and-worst-states-for-women-
equality/5835/ [https://perma.cc/FU8L-QDX3]; Suk, supra note 59, at 437 (noting
that Maine ratified the Federal ERA but not a State Constitutional ERA); Paul
Benjamin Linton, State Equal Rights Amendments: Making a Difference or Making a
Statement?, 70 TEMP. L. REV. 907, 908–09, 909 n.2 (1997) (indicating which states
have passed a State Constitutional ERA).
76 See generally Wharton, supra note 65. But see Linton, supra note 75, at 940.
77 See Frequently Asked Questions, ERA,
https://www.equalrightsamendment.org/faq [https://perma.cc/4K4N-XUCQ] (last
visited June 20, 2021) (indicating that the following states’ constitutions contain sex
discrimination protections: Alaska, California, Colorado, Connecticut, Delaware,
Florida, Hawaii, Illinois, Iowa, Louisiana, Maryland, Massachusetts, Montana,
Nebraska, New Hampshire, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode
Island, Texas, Utah, Virginia, Washington, and Wyoming).
78 See Wharton, supra note 65, at 1203 (quoting Linton, supra note 75, at 940–
1024 ST. JOHN’S LAW REVIEW [Vol. 94:1013
they often go further than the current Federal Equal Protection
standard, even if they are not being used to their full potential.79
State ERAs have been used to minimize the financial burdens of
divorce, invalidate laws that “assign child support obligations
only to fathers,” strengthen protections against pregnancy
discrimination, and “have prompted major legislative reforms in
employment law.”80 Further, these amendments have not been
used, as opponents suggested they would be, to undermine
affirmative action efforts.81 Any apparent ineffectiveness of state
ERAs can be attributed to the uneven application of these
amendments across states and any actual ineffectiveness can be
attributed to a state’s “[u]nexamined [r]eliance on [f]ederal
[p]recedent.”82 Both of these factors illustrate the need for a
Federal ERA in order to create consistency and strengthen the
standard of review for sex classifications.83
B. Lessons from the Fourteenth Amendment, Brown, and the
Civil Rights Act of 1964
The Fourteenth Amendment is a perfect example of how a
constitutional amendment cannot be successful on its own,
particularly when viewed in light of public school segregation.84
In 1868, the requisite states ratified the Fourteenth
Amendment.85 Eighty-six years later, the Court in Brown v.
Board of Education determined that, under the Fourteenth
Amendment, racially segregated public schools were
unconstitutional and mandated that all public schools be
integrated.86 However, public schools would not be successfully
79 See id. at 1270.
80 Judith Avner, Some Observations on State Equal Rights Amendments, 3 YALE
L. & POL’Y REV. 144, 155–57, 165 (1984) (outlining both legislative and judicial
reforms made possible because of state ERAs); Wharton, supra note 65, at 1248–49.
81 See Avner, supra note 80, at 165.
82 See Wharton, supra note 65, at 1270.
83 See Avner, supra note 80, at 145 (“Certainly the federal amendment is the
only means of assuring equality for women and men under law irrespective of
84 See Rebecca E. Zietlow, To Secure These Rights: Congress, Courts and the
1964 Civil Rights Act, 57 RUTGERS L. REV. 945, 946 (2005).
85 See 14th Amendment to the U.S. Constitution: Civil Rights (1868),
https://www.ourdocuments.gov/doc.php?flash=false&doc=43 (last visited June 20,
86 347 U.S. 483 (1954); see Zietlow, supra note 84, at 954–56; see also
SALOMONE, supra note 26, at 43 (“What equal protection of the laws meant in the
society of 1896 as compared with that of 1954 and as applied to the social
2020] GIVING THE EQUAL RIGHTS AMENDMENT TEETH 1025
integrated for another decade.87 It took “a shift in congressional
membership and a change in Presidential leadership to put some
‘teeth’ into the Brown mandate.”88 “[B]y virtually every indicator,
the [Civil Rights Act of 1964] was more effective than Brown and
the lower courts’ enforcement of Brown” in desegregating public
This congressional Act would have undoubtedly been
impossible without the ratification of the Fourteenth
Amendment.90 Nevertheless, despite numerous lawsuits filed
pursuant to the Fourteenth Amendment’s Equal Protection
Clause,91 widespread change was not realized until it was
properly enforced by Congress. “[I]n the years after passage of
the 1964 Civil Rights Act, the federal government made more
substantial progress toward [desegregation] than had been made
by litigation in the ten years following the Brown decision.”92
The success of the Civil Rights Act can be attributed to both its
“carrot[ ] and stick[ ]” approach and its delegation of enforcement
powers.93 Title IV was the carrot, Title VI was the stick, and
each gave the attorney general and federal agencies vast power
to enforce the respective provisions.94
To enforce the Brown mandate and desegregate public
education, Title IV provided for technical assistance, training
programs, and “grants to state and local agencies to assist them
in eliminating school segregation.”95 In addition, Title IV gave
the Attorney General power to bring suits against state and local
governments on behalf of individuals who filed a written
complaint if the action would “materially further the orderly
achievement of desegregation.”96 Title VI, on the other hand,
authorized federal agencies to withdraw or refuse to grant
understandings, sensibilities, and perspectives of the time apparently had changed
in the intervening years.”).
87 See SALOMONE, supra note 26, at 58.
88 Id. at 57.
89 See Zietlow, supra note 84, at 947.
90 See id. at 984–88 (describing the Civil Rights Act of 1964 as a “constitutional
milestone” because it clarified the constitutional issue surrounding segregation for
the courts and the public).
91 See SALOMONE, supra note 26, at 40–56.
92 Id. at 58.
93 See Emily Bogle et al., Behind the Civil Rights Act: How It Was Made and
What It Means Today, NPR (July 2, 2014), https://apps.npr.org/behind-the-civil-
94 See 42 U.S.C. §§ 2000c-6, 2000d-1 (2018).
95 SALOMONE, supra note 26, at 58; Bogle et al., supra note 93.
96 42 U.S.C. § 2000c-6(a) (2018).
1026 ST. JOHN’S LAW REVIEW [Vol. 94:1013
federal financial assistance to any program or activity that
excluded individuals on the basis of race, color, or national
origin.97 “The joint impact of Titles IV and VI helped move the
South toward desegregation in the late 1960s.”98
Ultimately, the Civil Rights Act was a more effective tool for
social change than Brown because “when the legislative branch
creates rights of belonging, it represents a decision within the
community to effectuate a more inclusive vision of that
community” unlike the imposing nature in which the judicial
branch creates these rights.99 And thankfully, “[t]he success of
the 1964 Civil Rights Act created a precedent for Congress to
actively legislate to enforce equality norms.”100 Following the
ratification of the ERA, Congress should take an equally active
role in enforcing gender equality.
IV. INVOKING THE POWER OF THE ENFORCEMENT CLAUSE
Congress should spend the years following the ratification of
the ERA enacting the “Equal Rights Act”101 pursuant to the
ERA’s enforcement clause. It should be modeled after the Civil
Rights Act of 1964 and should legislate on topics ranging from
violence against women to economic health and opportunity. The
recommendations in the following sections will focus on the latter
because “[e]conomic power is potentially both the most important
component of gender equality and the one that requires policy
intervention for the creation of opportunities and sustainability
over time.”102 Similar to the Civil Rights Act’s carrot and stick
approach, economic policy in the Equal Rights Act should come in
two forms: the particular, or the stick, and the structural, or the
A. The “Stick Approach” to Achieving Economic Gender
97 See 42 U.S.C. §§ 2000d, 2000d-1 (2018) (“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.”).
98 SALOMONE, supra note 26, at 58 (“In 1964, only 2.3 percent of southern blacks
attended desegregated schools; in 1965 that figure grew to 7.5 percent, and in 1966
to 12.5 percent.”).
99 Zietlow, supra note 84, at 946.
100 Id. at 988.
101 This is a hypothetical title created by the author.
102 THE REGENTS OF THE UNIV. OF CAL., GENDER IN THE TWENTY-FIRST
CENTURY: THE STALLED REVOLUTION AND THE ROAD TO EQUALITY 249 (Shannon N.
Davis, Sarah Winslow & David J. Maume eds., 2017).
2020] GIVING THE EQUAL RIGHTS AMENDMENT TEETH 1027
Particular policies should include measures such as
requiring equal pay for equal work and banning the “pink tax.”
Measures to enforce these policies should be similar to those
prescribed in Title VI of the Civil Rights Act. Between the ages
of sixteen and seventy, the typical woman will make
approximately $590,000 less than a man makes in that time span
because, despite existing federal legislation, women are still paid
less than men.103 By the age of seventy, a woman will also have
paid over $90,000 more than a man on basic goods such as
shampoo and shaving cream simply because the “woman’s
version” is marked up with what has been coined a “pink tax.”104
Banning practices such as these could theoretically put more
than $650,000 directly back in the pockets of an individual
woman during her lifetime which would tangibly increase
women’s economic power.
These are not novel ideas and, in fact, have already been
pursued by Congress and state legislatures to varying degrees.
The Lilly Ledbetter Fair Pay Act of 2009 sought to address the
wage gap issue by making it easier for employees to sue their
employers over discriminatory pay practices.105 While this
legislation was an incredible victory, it did not solve the pay gap
problem because, for one thing, lawsuits can be costly and
risky.106 Putting an end to the pay gap will require a focus on
preventative measures in addition to these remedial measures.
To address the disparate impact of the “pink tax,” the New York
State Assembly passed a bill during the 2019 legislative session
that would prohibit businesses from charging different prices for
substantially similar men’s and women’s products.107 An Equal
103 See Chris Wilson, Just How Bad Is the Gender Pay Gap? Brutal, When You
Look at a Lifetime of Work, TIME (Apr. 2, 2019, 6:00 AM),
104 See AX THE PINK TAX, https://axthepinktax.com/#support (last visited June
20, 2021) [https://perma.cc/5HNK-R5P2]; see also Elliot, supra note 45.
105 See Michel Martin, Lilly Ledbetter And the Fight for Gender Equality, NPR
(Feb. 11, 2009, 12:00 PM),
106 See Kay Steiger, Closing the Gender Gap, THE GUARDIAN (Jan. 27, 2009),
107 See N.Y.A. 629, Reg. Sess. (2019); see also Leah Dunlevy, New York Advances
a Bill to End Gender Discrimination in Product Pricing, PAC. STANDARD (June 14,
1028 ST. JOHN’S LAW REVIEW [Vol. 94:1013
Rights Act could, among other things, focus both on preventative
pay discrimination measures and eliminating the “pink tax”
These particular policy changes would be enforced similarly
to the provisions of Title VI of the Civil Rights Act, or the stick
approach.108 That is, agencies would be given the authority to
issue rules and regulations to enforce the Act and, further, would
have authority to terminate or refuse to grant federal benefits to
any program engaging in these discriminatory practices. The
Equal Rights Act should also go one step further and authorize
the cancellation of any federal tax benefits for any company that
engages in these practices. The stick approach is most
appropriate to enforce these measures because there would be
little ambiguity when it comes to determining whether an
organization is in compliance. And where there is ambiguity,
federal agencies would be able to exercise their discretion.
B. The “Carrot Approach” to Achieving Economic Gender
Structural changes in law would include “policies that
support worker flexibility and contemporary family life.”109
Measures to enforce these policies should be similar to those
prescribed in Title IV of the Civil Rights Act. An Equal Rights
Act should follow states’ leads in focusing efforts on three central
areas of legislation: accommodation of pregnancy in the
workplace, primary school education designed for the children of
two breadwinners and single parents, and employment designed
for coequal and single parents.110 The first of these,
accommodation of pregnancy in the workplace, can be difficult to
conceptualize under an equality framework because not everyone
in the workplace can be pregnant. Congress took a step in the
right direction, however, when it passed the Pregnancy
discrimination-in-product-pricing [https://perma.cc/A549-SB44] (reporting that the
bill must still be passed by the State Senate).
108 See 42 U.S.C. § 2000d-1 (2018).
109 THE REGENTS OF THE UNIV. OF CAL., supra note 102, at 249.
110 See Suk, supra note 59, at 429–30; see also Gretchen Livingston, About one-
third of U.S. children are living with an unmarried parent, PEW RSCH. CTR. (Apr. 27,
(noting twenty-one percent of children under eighteen were living with a solo mother
2020] GIVING THE EQUAL RIGHTS AMENDMENT TEETH 1029
Discrimination Act which requires employers to provide the same
benefits provided to any employee who, because of a disability, is
restricted in their ability to work.111 But, like the Fair Pay Act of
2009, the Pregnancy Discrimination Act has substantial
limitations because of the enforcement burden it places on
The second of these policies would remedy the disparate
impact that school schedules have on women’s opportunities for
professional gain.113 In general, children cannot start public
school until the age of five, the school day ends well before the
workday does, and school abruptly stops during the summer
while work does not. During these times, a parent has to be
available to the child, and that parent is usually the mother.114
Policies including universal pre-kindergarten, longer school days,
and government- or employer-subsidized childcare would
alleviate this burden and equalize women’s opportunities in the
workplace.115 Local governments have already started to see the
success of such policies. For example, since Washington D.C.
started offering two years of universal, full-day preschool about
ten years ago, “the city’s maternal labor force participation rate
has increased by about 12 percent[ ].”116
The biggest part of achieving equality for women in the
public sphere, however, will be allowing and encouraging men to
111 See Deborah A. Widiss, The Interaction of the Pregnancy Discrimination Act
and the Americans with Disabilities Act After Young v. UPS, 50 U.C. DAVIS. L. REV.
1423, 1427–28 (2017) (“The PDA came on the heels of a dramatic growth in employer
support for other kinds of health conditions . . . . [T]he Congressional record makes
clear that the PDA was intended to ensure that comparable benefits were extended
to pregnant employees.”).
112 See Steiger, supra note 106; Liz Elting, Why Pregnancy Discrimination Still
Matters, FORBES (Oct. 30, 2018, 2:19 PM),
still-matters/#5f2e636763c1 [https://perma.cc/4W4J-TBH2] (“Sadly, forty years after
the PDA became law, discrimination is still quite common. . . . The number of
charges filed hasn’t changed very much since .”).
113 See Suk, supra note 59, at 433–34.
114 See id. at 433.
115 See id. at 431–34.
116 Rasheed Malik, The Effects of Universal Preschool in Washington, D.C., CTR.
FOR AM. PROGRESS (Sept. 26, 2018, 9:30 AM),
1030 ST. JOHN’S LAW REVIEW [Vol. 94:1013
share in private sphere work.117 This means, among other things,
requiring gender-neutral policies for paid parental leave and
incentivizing the implementation of flexible work schedules.
First, “[p]aternity leave benefits women in the workplace, not
only by leading toward more equal divisions of labor at home—
making it more likely that the mother will engage more fully in
her career—but also in that it de-genders and destigmatizes the
taking of leave during one’s career.”118 In order for these benefits
to be realized, employers must both offer fathers the same
amount of parental leave as mothers and encourage a culture
where neither parent is penalized upon their return for taking
advantage of the policy.119 Second, “lack of flexible work
arrangements . . . makes it difficult for many workers, especially
women, to meet both their caregiving and work
responsibilities.”120 In a 2014 survey, nearly three-quarters of
women who identify as homemakers “said they would consider
going back [to work] if a job offered flexible hours or allowed
them to work from home.”121 Incentivizing employers to allow for
more flexible work arrangements would therefore increase the
maternal workforce and, consequently, families’ earning
Policies to implement these structural changes would be
enforced similarly to the provisions of Title IV of the Civil Rights
Act, or the carrot approach.122 States and companies would have
access to training, technical assistance, and grants to aid in the
implementation of these policies. Additionally, the Attorney
General would be granted authority to bring a suit on behalf of
individuals if doing so would materially further the achievement
of gender equality. This would take the burden off employees
while rewarding employers for taking preemptive measures. The
carrot approach is most appropriate to enforce these measures
117 See THE REGENTS OF THE UNIV. OF CAL., supra note 102, at 23–25 (basing
policy recommendations around the belief that “the desire to blend satisfying work
with a rich family life is not selfish and should not be out of reach.”).
118 Elana Lyn Gross, How Paid Paternity Leave Can Help Close the Gender Pay
Gap, FORBES (May 14, 2019),
119 See id.
120 DAVIS & GOULD, supra note 54, at 21.
121 Claire Cain Miller & Liz Alderman, Why U.S. Women are Leaving Jobs
Behind, N.Y. TIMES (Dec. 12, 2014), https://www.nytimes.com/2014/12/14/upshot/us-
122 See 42 U.S.C. § 2000c-4 (2018).
2020] GIVING THE EQUAL RIGHTS AMENDMENT TEETH 1031
because there is no one-size-fits-all version of these policies. So,
providing positive incentives will encourage organizations to find
what works for them while still advancing gender equality.
Ratifying the ERA could result in these sweeping changes
because it would give Congress the constitutional foundation to
pass comprehensive, cohesive legislation aimed at equalizing the
role of men and women in our economy and society. Without the
ERA, such legislation would likely be struck down by the
Supreme Court as an unconstitutional exercise of Congress’
power under the Fourteenth Amendment.123 But, by relying on
the ERA’s enforcement provision, the constitutionality of such
sweeping congressional action to remedy gender inequalities
would be much harder to deny.
To echo a sentiment of Justice Ruth Bader Ginsburg, at the
very least, “I would like to be able to take out my pocket
Constitution and say that the equal citizenship stature of men
and women is a fundamental tenet of our society like free
speech.”124 The ratification of the ERA would undoubtedly be a
priceless symbol of women’s inherent, but not yet realized,
equality. What our political leaders do next could turn it into a
The fight for the ERA’s ratification has been almost a
century in the making. A side effect of this fight has been
incredible progress for women’s equality at all levels. But women
deserve more than slow and occasional progress. Persistent
gender inequality permeates every corner of our society, and it
hurts more than just women. Children, families, companies, and
our country all do better when women do better. Unfortunately,
existing legal protections are not sufficient to remedy these
inequalities. Gender equality will never be realized if it is
dependent on Equal Protection Clause lawsuits, piecemeal
legislation, and the inconsistent applications of state equal rights
amendments. Achieving gender equality in our society will
require an explicit constitutional guarantee against
discrimination on the basis of sex, and it will require that
Congress give this guarantee “teeth.”
123 See, e.g., United States v. Morrison, 529 U.S. 598, 617–19 (illustrating
Congress’s limited ability to pass remedial gender equality legislation pursuant to
their current constitutional powers).
124 See Chira, supra note 43.
1032 ST. JOHN’S LAW REVIEW [Vol. 94:1013
As evidenced by the fight for public school desegregation,
constitutional amendments and Supreme Court mandates can
only change society so much. In the case of desegregation, the
Civil Rights Act of 1964 was the essential final push needed to
give teeth to the Fourteenth Amendment and the Brown
mandate. When it comes to remedying gender inequality,
similarly comprehensive legislation that focuses on a carrot-and-
stick approach and enforcement mechanisms will be necessary to
give the ERA teeth. Accomplishing such momentous statutory
reform will be no small feat, but the Civil Rights Act is proof that
it is possible.
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Civil Rights Law Equity: An
Introduction to a Theory of What Civil
Rights Has Become
John Valery White*
This Article argues that civil rights law is better understood
as civil rights equity. It contends that the four-decade-long
project of restricting civil rights litigation has shaped civil rights
jurisprudence into a contemporary version of traditional equity.
For years commentators have noted the low success rates of civil
rights suits and debated the propriety of increasingly restrictive
procedural and substantive doctrines. Activists have lost faith in
civil rights litigation as an effective tool for social change,
instead seeking change in administrative forums, or by asserting
political pressure through social media and activism to compel
policy change. As for civil rights litigation, activists have, most
damningly, ignored it. This Article makes a preliminary case for
understanding civil rights jurisprudence as a contemporary
version of traditional equity, available in limited circumstances
to address extraordinary violations of rights. Civil rights
litigation has become a limited tool: inappropriate for driving
social change, unreliable for litigants involved in everyday
disputes, and mostly incapable of articulating and developing
rights through precedent. Judges are the powerful, central
figures in this litigation. And the rights landscape is structured
by the capabilities and demands of the kind of equity regime civil
* Ralph Denton Professor of Law, University of Nevada, Las Vegas
Boyd School of Law. J.D., Yale Law School, 1991; B.A., Southern University,
1988. This project benefitted from the input of my Boyd School of Law
Colleagues Ian Bartrum, Thomas Main, Nancy Rapoport, Addie Rolnick,
Jeanne Price, and the research help of Lena Rieke (now a research librarian
at Columbia Law School’s Arthur W. Diamond Law Library).
1890 78 WASH. & LEE L. REV. 1889 (2022)
rights litigation has become. What emerges is a vision of the
courts as protectors of the status quo in social and political
Table of Contents
INTRODUCTION ………………………………………………………. 1891
I. EQUITY AND CIVIL RIGHTS IN THE CIVIL RIGHTS
ERA ……………………………………………………………… 1899
A. Traditional Equity, Equity as Justice, and
Popular Equity ……………………………………….. 1900
B. The Defining Role of Equity in the Creation
of Modern Civil Rights …………………………….. 1909
1. Brown and 1960s Civil Rights Statutes’
Focus on Empowering Courts and the
Attorney General ………………………………… 1912
2. Emergence of a Parallel “Rights”
Regime ………………………………………………. 1924
II. CIVIL RIGHTS EQUITY: STRUCTURING RIGHTS
LITIGATION IN THE POST-CIVIL-RIGHTS ERA …….. 1927
A. From Retrenchment to Civil Rights Equity:
A Definition of Civil Rights Equity ……………. 1928
B. Restricting Structural Injunctions with
Equity …………………………………………………….. 1932
C. Emergence of Civil Rights Equity ……………… 1944
D. The Structure of Justice: Civil Rights Equity
and a Hierarchy of Rights ………………………… 1953
III. CIVIL RIGHTS EQUITY AS A POPULAR EQUITY ……. 1964
IV. CIVIL RIGHTS AS CIVIL RIGHTS EQUITY ……………. 1969
A. How Civil Rights Operates as Civil Rights
Equity …………………………………………………….. 1970
B. Is There Anything Wrong with Civil Rights
Equity? …………………………………………………… 1976
C. Caveats …………………………………………………… 1979
V. THE ALLURE OF CIVIL RIGHTS EQUITY …………….. 1980
A. Dampening the Revolutionary Implications
of Civil Rights …………………………………………. 1980
B. Structuring a Conservative Rights Regime … 1981
C. Preserving Pre-Rights Era Understandings
of the Legal System ………………………………….. 1982
CIVIL RIGHTS EQUITY 1891
1. Prioritizing Private Rights over Civil
Rights ………………………………………………… 1982
2. Working as a Mechanism of Ashwander
Restraint ……………………………………………. 1983
3. Permitting Judicial Restraint in a
Supreme Judiciary ……………………………… 1985
D. Resolving Civil Rights Paradoxes ……………… 1987
CONCLUSION ………………………………………………………….. 1990
Civil rights “law” has become civil rights “equity.”
Specifically, civil rights jurisprudence has taken on the
attributes of traditional equity, and civil rights litigation has
come to fill the role traditional equity once occupied. Civil rights
equity contrasts sharply with current usage of the term “equity”
as a synonym for equality, or even justice. Civil rights equity
represents not the achievement of an equanimous status in law
or society, so much as it is the reduction of the role of civil rights
litigation to the supplemental role of traditional equity,
characterized by and limited to addressing outrages for
In the days after George Floyd’s death, protests erupted
across the country.1 These protests sought to change police
use-of-force practices that have led to the killing of Black people,
often in response to suspicion of minor crimes, as was the case
with Mr. Floyd.2 These protests reanimated the
#Blacklivesmatter movement of 2015, which accompanied
campus protests for racial justice and the #MeToo movement.3
Collectively, these might be viewed as a New Civil Rights
Movement—the power of which was reflected in the widespread,
multiethnic nature of the antiracist protests of the summer of
1. See Derrick Bryson Taylor, George Floyd Protests: A Timeline, N.Y.
TIMES (Oct. 2, 2021), https://perma.cc/JQF9-75P3.
2. See Alex Altman, Why the Killing of George Floyd Sparked an
American Uprising, TIME (June 4, 2020, 6:49 AM), https://perma.cc/324H-
3. See Linda S. Greene et al., Talking About Black Lives Matter and
#MeToo, 34 WIS. J.L., GENDER & SOC’Y 109, 110–14 (2019).
1892 78 WASH. & LEE L. REV. 1889 (2022)
2020, as well as the central place those protests occupied in the
political imagination at that time.4
As civil rights movements, the summer 2020 protests, like
those in 2015, have a strange (even strained) relationship with
civil rights law; civil rights litigation is ever-present but
decidedly peripheral to this New Civil Rights Movement and its
pronounced goals. Since 2015, the families of prominent victims
of police violence have been represented by attorneys pursuing
compensation for civil rights violations. Indeed, in many of the
cases they have been represented by the same lawyer, Ben
Crump, who secured settlements in several of the prominent
cases.5 Similarly, many of the women accusing Harvey
Weinstein of sexual assault and rape are suing him and the
companies he led.6 But in neither instance is civil rights law
central; the litigation is seen as attaining needed compensation
for the victims, but few view the lawsuits as effective
deterrents.7 Mr. Crump voiced this concern following the
4. See Larry Buchanan et al., Black Lives Matter May Be the Largest
Movement in U.S. History, N.Y. TIMES (July 3, 2020), https://perma.cc/4LAY-
5. See Tyler Foggatt, Who Is the Floyd Family’s Lawyer?, NEW YORKER
(June 15, 2020), https://perma.cc/8UDV-ETN3
In 2012, after Trayvon Martin was killed by George Zimmerman, in
a suburb of Orlando, Martin’s family hired Crump, who is based in
Tallahassee, to represent them. He made the rounds on cable news
to talk about the case; shortly afterward, protests erupted in
Florida. (Zimmerman was eventually acquitted.) Two years later,
Crump took on another high-profile case, after Michael Brown was
shot dead by Darren Wilson, a police officer, in Ferguson, Missouri.
(More protests; Wilson was never charged.) Now Crump is
representing the family of George Floyd, who was killed, three
weeks ago, by Derek Chauvin, a cop in Minneapolis, who knelt on
Floyd’s neck for nearly nine minutes.
Minneapolis settled with Mr. Floyd’s family in March 2021. Rachel Treisman,
Minneapolis Reaches $27 Million Settlement with Family of George Floyd,
NPR (Mar. 12, 2021, 2:21 PM), https://perma.cc/HYQ8-3ADW.
6. See, e.g., Complaint at 55–74, Geiss v. Weinstein Co. Holdings, No.
17-cv-09554 (S.D.N.Y Dec. 6, 2017); Complaint at 42–56, Doe 1 v. Weinstein
Co. Holdings, No. 17-cv-08323 (C.D. Cal. Nov. 15, 2017); see also Jan Ransom
& Danielle Ivory, ‘Heartbroken’: Weinstein Accusers Say $44 Million
Settlement Lets Him off the Hook, N.Y. TIMES (May 24, 2019),
https://perma.cc/K6GA-9UAY (“Zoe Brock, a former model who has accused
Harvey Weinstein of sexually inappropriate behavior, said she once viewed a
lawsuit against him as her best opportunity to hold him to account.”).
7. See Treisman, supra note 5.
CIVIL RIGHTS EQUITY 1893
announcement of a settlement in the killing of Mr. Floyd.8 He is
reported to harbor
mixed feelings about whether civil settlements actually serve
to deter police violence, noting that while they may motivate
city governments to make changes, they have not necessarily
been proved to do so. . . . Crump said that to him, progress
would mean justice—which is not the same as accountability.
“The only thing George Floyd could get is accountability,
Breonna can only get accountability, you know, Ahmaud
Arbery can only get accountability,” he said. “Because the
reality is, justice would be them still here with us living.”9
Indeed, some commentators have come to question the
propriety of taxpayers paying judgments for police practices the
taxpayers might not support.10 In any case, change is expected
to come from political and administrative avenues in response
to protests.11 If any judicial process is crucial for many activists,
it is the criminal prosecution of the perpetrators, whether the
perpetrators are police utilizing excessive force or workplace
rapists, that activists consistently and persistently call for.12 It
does not seem too much to say that activists do not believe civil
rights litigation is a useful tool for social change. Notably, when
the summer 2020 protests triggered talk of legislation aimed at
modifying qualified immunity, and thereby facilitating civil
8. See id. (explaining that Mr. Crump does not believe the suits serve as
actual deterrents to police violence).
10. See, e.g., Andrew Cockburn, Blood Money: Taxpayers Pick Up the Tab
for Police Brutality, HARPER’S MAG., Nov. 2018, at 61, https://perma.cc/82L4-
11. The Movement for Black Lives (M4BL) policy platform does not list
civil litigation among their policy proposals. See Vision for Black Lives, M4BL,
https://perma.cc/3PFE-6KUY. A news story on Ben Crump highlights hostility
on social media at the intervention of “ambulance chasers” as a distraction
from the movement. See Foggatt, supra note 5.
12. See, e.g., Shaila Dewan, Few Police Officers Who Cause Deaths Are
Charged or Convicted, N.Y. TIMES (Sept. 24, 2020), https://perma.cc/QJ6X-
PNPL (last updated Apr. 12, 2021) (noting the public outcry to charge police
officers connected to the deaths of Breonna Taylor, Michael Brown, and Carlos
1894 78 WASH. & LEE L. REV. 1889 (2022)
rights suits against abusive officers,13 activists were unmoved,14
dismissing such calls in favor of proposals to “defund the
police.”15 Law seemed beside the point, an inappropriate
distraction from efforts for true reform.
Ambivalence to civil rights law derives in part from an
increasingly conservative federal judiciary that has been
inhospitable to civil rights claims.16 This ambivalence is also
consistent with a view of social change that emphasizes political
processes, organization, and activism.17 But the litigation tools
of the Civil Rights Movement seem available, and conservative
activists are energized about using the courts to counteract
policy with which they disagree (and which they feel certain
violates the Constitution).18 Civil rights litigation lives and yet
it seems that the statutes and constitutional rights that were
hard-won in the original Civil Rights Movement have been made
superfluous to the challenges of today. Litigation has become an
inefficient and ineffective tool for change that, though
ephemeral, always requires maximum social and political
capital, mobilized and deployed in the streets.19 Social justice, it
seems, is not to be had through law, and victories are not
effectively memorialized there.
13. See Hailey Fuchs, Qualified Immunity Protection for Police Emerges
as Flash Point Amid Protests, N.Y. TIMES (June 23, 2020),
https://perma.cc/VKN2-339K (last updated Mar. 8, 2021).
14. “For a growing consortium of progressive groups focused on young
voters, justice for Mr. Floyd requires dismantling police power and investing
in programs related to mental health, housing and education—which activists
believe would reduce crime and violence.” Astead W. Herndon, For George
Floyd’s Mourners, What Does ‘Justice’ Mean?, N.Y. TIMES (June 12, 2020),
15. See Mariame Kaba, Opinion, Yes, We Mean Literally Abolish the
Police, N.Y. TIMES (June 12, 2020), https://perma.cc/3PQQ-9UXX.
16. See Rebecca R. Ruiz et al., A Conservative Agenda Unleashed on the
Federal Courts, N.Y. TIMES (Mar. 14, 2020), https://perma.cc/8U9V-SDUC (last
updated Mar. 16, 2020).
17. See Scott L. Cummings, The Social Movement Turn in Law, 43 L. &
SOC. INQUIRY 360, 400–05 (2018) (discussing the pragmatic approach that
favors other forms of activism and organization over litigation for creating
18. See Ann Southworth, Lawyers and the Conservative
Counterrevolution, 43 L. & SOC. INQUIRY 1698, 1709–14 (2018) (explaing how
the conservative movement used originalism as a tool to restrict rights).
19. See Douglas NeJaime, Winning Through Losing, 96 IOWA L. REV. 941,
CIVIL RIGHTS EQUITY 1895
This Article offers a view as to why. Its focus is on the
nature of civil rights litigation, which has been built around
judicial equity powers from its inception and occupies a role akin
to equity’s traditional role over the years: a means for courts to
provide remedies to individuals in unusual circumstances in
order to achieve justice. Ultimately, civil rights jurisprudence
has become “civil rights equity.”
In the Anglo-American jurisprudential tradition, law and
equity were separate, complementary systems.20 Common law
courts and equity courts successively emerged in England after
the Norman conquest, with common law becoming an
independent, formalized system of jurisprudence, and equity
emerging as a system for interposing just results in cases where
the common law was inadequate.21 Equity possessed its own,
complex system of writs, rules, and precedent,22 but in the
United States federal courts, the Federal Rules of Civil
Procedure (FRCP) and their rejection of formal pleading merged
equity with law.23 Since then, a single system of pleading and
procedure for law and equity has governed, diminishing the
distinction between law and equity in a combined system
focused on attaining justice. This fluid, less formal nature aided
in the emergence of civil rights law and, arguably, eventually
undermined civil rights law’s social change capacity.
Emerging from the ferment of the Civil Rights Movement
and the post-World War II optimism in rights-based legalism,
civil rights threatened to reshape American law. Instead, the
revolutionary potential of civil rights has been refashioned in
recent years along the lines of traditional equity in both formal
and informal ways. Formally, civil rights equity reflects the
central role of equitable remedies in civil rights jurisprudence
and the central importance of sharp limitations on those
20. See Thomas O. Main, ADR: The New Equity, 74 U. CIN. L. REV. 329,
329 (2005) [hereinafter Main, New Equity].
21. See Thomas O. Main, Traditional Equity and Contemporary
Procedure, 78 WASH. L. REV. 429, 430, 437 n.50 (2003) [hereinafter Main,
22. See generally 1 JOSEPH STORY, COMMENTARIES ON EQUITY
JURISPRUDENCE (13th ed. 1886).
23. See Main, Traditional Equity, supra note 21, at 431.
1896 78 WASH. & LEE L. REV. 1889 (2022)
remedies.24 Informally, it reflects the subtle influence of
equitable constraints on shaping how courts approach damages
actions, making those actions characteristically procedural with
vaguely defined, fact-intensive rights that operate to give judges
in civil rights cases a role similar to the role of traditional equity
courts.25 The resulting “civil rights equity” limits the force of
rights, confines rights to exceptional circumstances, and
subordinates them to private rights. Civil rights equity runs
counter to Marbury’s dicta that public rights are like private
rights, to be enforced when established.26 Civil rights equity is a
judicial style that has made civil rights exceptional and limited.
It explains the resilience of civil rights, their ever-presence, as
well as their uselessness for activists in this new civil rights era.
The claim that civil rights law has become civil rights equity
is peculiar in at least three ways, the response to which
structures this Article’s delineation of a theory of civil rights
equity. First, civil rights statutes and jurisprudence were
initially created expressly to empower courts to use their equity
powers to dismantle the system of segregation known as Jim
Crow that had emerged after slavery and Reconstruction.27
Congress and the courts seemed to agree that, to take on
dismantling a system as complex and far-reaching as Jim Crow,
required empowering the courts generally, and individual
judges specifically, to utilize their equity powers.28 Though these
efforts were discussed in the language of rights, and though,
importantly, a parallel system of damages actions emerged
24. See David Rudovsky, Running in Place: The Paradox of Expanding
Rights and Restricted Remedies, 2005 U. ILL. L. REV. 1199, 1212 (2005)
(discussing how the courts have eroded remedial measures over the past
25. See id. at 1211, 1235–41.
26. Chief Justice Marshall quoted Blackstone: “‘In all other cases,’ he
says, ‘it is a general and indisputable rule, that where there is a legal right,
there is also a legal remedy by suit or action at law, whenever that right is
invaded.’” Marbury v. Madison, 5 U.S. 137, 163 (1803) (quoting 3 WILLIAM
BLACKSTONE, COMMENTARIES *23).
27. See Robert E. Easton, Note, The Dual Role of the Structural
Injunction, 99 YALE L.J. 1983, 1983 (1990).
28. See, e.g., Civil Rights Act of 1964, Pub. L. No. 88-352, pmbl., 78 Stat.
241, 241 (stating that the Act would “confer jurisdiction upon district courts of
the United States to provide injunctive relief against discrimination in public
CIVIL RIGHTS EQUITY 1897
alongside this equity-focused system,29 the origin and structure
of civil rights jurisprudence during the Civil Rights Movement
was rooted in equity.30 “Civil rights equity” is only a strange
construction in the sense that we presume that “civil rights law”
invokes legal rights, or to the degree we think of rights in light
of the related analogy to common law rights enforcement that
“law” implies. Part I argues that civil rights are equity because
it was rooted in equity, and in its formative years, equitable
powers came to be closely associated with the civil rights project
(emerging damages actions notwithstanding).
Second, the distinction between law and equity is not
supposed to be especially meaningful in modern American law,31
making a distinction between civil rights law and civil rights
equity unclear. One should be able to speak coherently of legal
rights even if the primary remedies invoked are equitable.
Indeed, the merger of law and equity facilitated courts’ effective
confrontation of Jim Crow in the face of resistance to the Civil
Rights Movement and resistance to court-centered efforts to
eradicate Jim Crow.32 Creative utilization of equitable remedies
would evolve into the structural injunction and make public law
litigation characteristically structural reform litigation.33
Though the Supreme Court and Congress would in time curtail
these broad powers, the merger of law and equity permitted
significant judicial confrontation with Jim Crow, which made it
difficult to curtail courts’ equitable powers while confining
changes to the “equitable” aspects of civil rights litigation.34
29. See, e.g., Bivens v. Six Unknown Named Agents, 403 U.S. 388, 392– 96
(1971) (permitting damages actions against federal officers for violations of
Fourth Amendment rights).
30. See Civil Rights Act of 1964, pmbl., 78 Stat. at 241.
31. See Samuel Bray, The Supreme Court and the New Equity, 68 VAND.
L. REV. 997, 1008 (2015) [hereinafter Bray, The Supreme Court and the New
32. See, e.g., OWEN M. FISS, THE CIVIL RIGHTS INJUNCTION 4 (1978).
33. See Kamina Aliya Pinder, Reconciling Race-Neutral Strategies and
Race-Conscious Objectives, 9 STAN. J. C.R. & C.L. 247, 250 (2013) (describing
public law litigation as lawsuits based in equity that “extends beyond the
bilateral structure to broadly impact public policy resulting in a remedy that
requires judicial activism and ongoing oversight and administration of
34. See, e.g., Rudovsky, supra note 24, at 1213 (indicating that civil rights
litigants seeking monetary relief face court-imposed barriers to recovery).
1898 78 WASH. & LEE L. REV. 1889 (2022)
Civil rights equity thus represents the influence of traditional
equitable restrictions in limiting civil rights jurisprudence more
generally. Part II argues that civil rights are equity because it
has operated and continues to operate under limitations on
litigation drawn, often indirectly, from traditional equity
restrictions. The effect of these restrictions is the creation of a
hierarchy of rights that defines when to apply civil rights equity
and is defined by assumptions about what constitutes an
appropriate civil rights case, as informed by traditional
equity-based limitations on appropriate use of judicial power.
Third, the claim that civil rights are equity is peculiar
because merging law and equity created a simplified system of
attaining justice, empowering courts to pursue justice in an
efficient, consolidated process. Thus, to speak of civil rights
becoming equity defies the assumptions of the post-FRCP
approach by implying that a separate kind of equity persists.
But the radical anti-formalism of modern law has obscured the
emergence of a civil rights jurisprudence that administers legal
rights by duplicating the form and role of traditional equity.
Civil rights equity means that civil rights jurisprudence has
been fashioned to permit courts to intervene principally in
circumstances reminiscent of traditional equity courts—to
address outrages, where legal remedies are inadequate, and for
deserving litigants.35 Civil rights are made a supplement to law
with an approach that supplants legalistic constructions of
rights with a largely unbounded search for injustice as
understood by individual jurists. The unbounded nature of this
jurisprudence is also obscured because, like the jurisprudence of
traditional equity, civil rights jurisprudence is characteristically
procedural—focused on limiting litigants’ access to courts’
tremendous power to provide remedies. Yet civil rights
jurisprudence is substantively fact intensive—focusing jurists
on the specific claim of the particular individual, under their
precise circumstances.36 The efficient, consolidated pursuit of
justice in modern law has come to empower jurists to provide
35. See Main, New Equity, supra note 20, at 400 (“[T]he jurisdiction of
Equity consisted entirely of cases where the legal remedies were inadequate.”).
36. See Rudovsky, supra note 24, at 1200 (“[T]he Supreme Court . . . has
restricted civil rights remedies through a series of complex and controversial
measures, including . . . narrower standards for standing and for private
enforcement of civil rights legislation . . . .”).
CIVIL RIGHTS EQUITY 1899
remedies where they perceive an injustice, tested by procedural
limits, and structure cases for judicial management, checked by
the necessity of accord from appellate courts.37 Civil rights
equity is thus a search for outrages.
Accordingly, Part III argues that civil rights are equity
because it fulfills the role of traditional equity in the way
traditional equity operated. Fulfilling equity’s role in this way
is not confined to cases involving equitable remedies. Indeed,
civil rights equity is epitomized by damages actions being
restricted to the kinds of circumstances that equity practice
occupied in traditional equity systems. This is less an
application of equity restrictions to civil rights than it is an
application of popular views of equity in the legal profession to
civil rights litigation as a means of redefining the role of civil
rights. Part IV details how civil rights equity operates, and the
Conclusion summarizes some implications.
I. EQUITY AND CIVIL RIGHTS IN THE CIVIL RIGHTS ERA
Civil rights are equity because the original conception of
civil rights litigation was thoroughgoingly equitable.38 The
reliance on equity in civil rights made civil rights and equitable
remedies synonymous and modeled civil rights intervention on
equity’s traditional role.39 Though a complete version of civil
rights equity would only emerge as a product of efforts since the
late 1970s to restrict civil rights actions, this original conception
of civil rights had a lasting effect on courts’ approach to rights
This Part begins with a description of equity. It then depicts
the centrality of equity to Brown v. Board of Education40 and to
the formative 1960s civil rights legislation. Equity was more
than a choice of remedy, more, even, than a necessity dictated
by the enormity of a nation confronting an aspect of its identity
37. See, e.g., FISS, supra note 32, at 6 (“The civil rights
injunction . . . invites us to imagine that the substantive claim could be just,
and to ask then whether the classical position of the injunction in the remedial
hierarchy—one of subordination—can be justified.”).
38. See FISS, supra note 32, at 4.
39. See Alex Reinert, Procedural Barriers to Civil Rights Litigation and
the Illusory Promise of Equity, 78 UMKC L. REV. 931, 946–48 (2010).
40. (Brown I), 347 U.S. 483 (1954).
1900 78 WASH. & LEE L. REV. 1889 (2022)
as defining as Jim Crow. Equity framed and defined the
judiciary’s role in this project as an exceptional intervention to
address an extraordinary problem. This framework would
influence future treatment of rights as the country and the
courts largely abandoned their brief confrontation with Jim
Crow’s myriad effects.41
A. Traditional Equity, Equity as Justice, and Popular Equity
Civil rights equity is not traditional equity. It draws from,
but is independent of, equity as it used to be and as it is today.
Civil rights equity is an imitation of traditional equity and is an
expansion of those aspects of equity that remain significant
after the merger of law and equity. But equity is a slippery term,
used alternatively to refer to the legacy judicial system that
operated in parallel to common law courts in the
Anglo-American legal tradition (traditional equity) and more
broadly to reference the mission of such courts in ensuring
justice (equity as justice).42 This formal system and broad
mission animate the ways equity is used in legal discourse,
producing a third aspect of equity: informal juridical equity
(popular equity). Traditional equity, equity as justice, and
popular equity all inform civil rights equity, which is largely a
species of popular equity.
Traditional equity emerged alongside and in supplement to
the common law.43 It possessed its own, ultimately complex
system of writs, rules and precedent.44 Traditional equity was a
parallel system of Anglo-American jurisprudence, originally
administered by independent courts of equity.45 The system of
41. See FISS, supra note 32, at 4 (discussing the impact of the injunction
as its use extended to civil rights cases generally).
42. See Main, Traditional Equity, supra note 21, at 495 (“The moderating
force of equity ensures just results in each application of the strict law and also
fulfills an essential role in the dialectic evolution of the law.”).
43. Main, Traditional Equity, supra note 21, at 502.
44. See generally STORY, supra note 22.
45. “England has not had separate courts of law and equity since the
1870s.” Bray, The Supreme Court and the New Equity, supra note 31, at 1017
(citing Patrick Polden, Part III: The Courts of Law, in 11 THE OXFORD HISTORY
OF THE LAWS OF ENGLAND 523, 757–73 (John Baker ed., 2010)). In Australia,
Canada, and the United Kingdom the term “fusion” refers to the merger of law
and equity. Samuel L. Bray, Form and Substance in the Fusion of Law and
CIVIL RIGHTS EQUITY 1901
equity was unevenly adopted by the colonies and early American
states due to distrust of the unbounded power it vested in
judges,46 but states widely adopted equity courts or recognized
equity in courts with dual or merged jurisdiction.47 American
courts drew on the writs, rules, and precedent of the English
Chancery Court and later on homegrown equity precedent to
adjudicate equity cases.48 Federal courts always had both legal
and equitable jurisdiction but, until the adoption of the FRCP,
administered law and equity separately, typically borrowing
state precedent and procedure under various process and
In Anglo-American law, common law and equity were
systems that successively emerged from the royal prerogative to
supplant the legal process of communal courts after the Norman
conquest.50 As common law became an independent, formalized
system of jurisprudence, equity emerged as a system for
interposing just results in cases where the common law courts
were inadequate.51 Over time, the Court of Chancery developed
into a distinct court that was a supplement and competitor to
the common law courts and whose power expanded as the
complexity of growing mercantilism exposed limitations in the
common law procedure, forms of action, and substantive rules.52
Equity, in PHILOSOPHICAL FOUNDATIONS OF THE LAW OF EQUITY (Dennis
Klimchuk et al. eds., 2020) [hereinafter Bray, Fusion of Law and Equity].
46. See Stephen N. Subrin, How Equity Conquered Common Law: The
Federal Rules of Civil Procedure in Historical Perspective, 135 U. PA. L. REV.
909, 926 (1987).
47. See LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 95–98 (3d
48. See Main, Traditional Equity, supra note 21, at 463.
49. See Subrin, supra note 46, at 930.
50. For an examination of the history of equity jurisdiction, see Main,
Traditional Equity, supra note 21, at 437.
51. See id. at 440–42. Main’s review underscores the supplemental role of
equity in providing flexibility to the “universalizing” tendency of law. See
Main, New Equity, supra note 20, at 351. That flexibility is lost in a continuous
process that Main believes equity operated to counteract. Id. at 400. Civil
rights equity serves a similar purpose but rather than provide flexibility to
ensure justice, civil rights equity ensures flexibility to suppress the
development of a strict civil rights jurisprudence that would disrupt notions
about federalism and the proper role of courts.
52. See Main, Traditional Equity, supra note 21, at 442–43.
1902 78 WASH. & LEE L. REV. 1889 (2022)
Equity courts also transformed over time,53 eventually
operating as a complex, parallel legal system,54 even in the
United States, where equity jurisdiction was sometimes, for
example, in the federal courts, exercised by the same judges
possessing common law jurisdiction.55
Since the merger of law and equity56 in the FRCP and the
rejection of the formal pleading it included, a single system of
pleading and procedure for law and equity has governed,
obscuring the distinction between law and equity, the latter of
which is most identifiable today in specific equitable remedies.57
The jurisprudence of traditional equity was thus permitted to
inform the equitable powers deployed after Brown to administer
civil rights remedies in what would become the civil rights or
structural injunction. Some conservative commentators regard
Brown as disrupting traditional equity by interposing a
“sociological” perspective in place of an individual focus,58 but
53. Until the seventeenth century, courts of equity focused on right and
wrong with little regard for precedent in the name of conscience. Id. at 445.
Starting with Lord Chancellor Bacon, who issued one hundred rules of equity,
and continuing under subsequent Lord Chancellors, equity was “bound and
confined by the channels of its own precedents and the technicalities of its own
procedure.” Id. at 447–48.
54. See Subrin, supra note 46, at 918–21 (“An expansive equity practice
developed as a necessary companion to common law.”).
55. See Bray, The Supreme Court and the New Equity, supra note 31;
FRIEDMAN, supra note 47, at 97–98 (noting that many states “handed over the
powers and tools of equity to ordinary courts of common law”).
56. The “merger” was preceded by the merger in the influential Field
Code of New York. FRIEDMAN, supra note 47, at 293–94. Subrin argues that
the Field Code was more common-law rooted than it appeared and much more
so than the FRCP. See Subrin, supra note 46, at 925, 931–39.
57. Though equity has disappeared, save in remedies according to Bray,
Fusion of Law and Equity, supra note 45, at 2 n.5, equity arguably won out in
the FRCP, influencing the courts’ distinctly anti-formalist approach under the
FRCP. See Subrin, supra note 46, at 943–74 (explaining how equity and
common law influenced the FRCPs); FRIEDMAN, supra note 47, at 298 (noting
that, insofar as law and equity were joined in the FRCPs, equity “came out on
58. See GARY MCDOWELL, EQUITY AND THE CONSTITUTION 8–11 (1982)
(explaining that, because of the Brown decisions, “[e]quity, originally and
historically a power addressed toward individuals, has been stretched to cover
entire social classes”); HUGH DAVIS GRAHAM, THE CIVIL RIGHTS ERA: ORIGINS
AND DEVELOPMENT OF NATIONAL POLICY 1960–1972, at 371–72 (1990) (noting
that the balancing test under Brown II might mean “Linda Brown’s right to
CIVIL RIGHTS EQUITY 1903
these objections seem really to be to the definition of the right to
equality under the Constitution. As one objector conceded,
Brown II’s59 use of equity was a conservative outcome,
notwithstanding how the structural injunction would be utilized
in years to come.60 Brown (I and II) initiated a civil rights
jurisprudence characterized by equity’s flexible,
forward-looking focus on achieving just outcomes.61 For one
commentator, “Brown and its legacy . . . are very good
However administered, traditional equity had distinctive
characteristics. Traditional Equity was supplemental to law; it
intervened only where the common law provided no “plain,
adequate, and complete remedy.”63 Traditional equity was in
personam, acting only on the individual and enforced only
through contempt power.64 In this way, equity courts avoided
conflict with common law courts that may have simultaneously
possessed jurisdiction over a dispute.65 And traditional equity
pursued justice, understood as the “moral sense of the
prompt relief must yield to some larger but vaguely defined public interest in
balancing the claims of her protected class against the need for public order”).
59. Brown v. Bd. of Educ. (Brown II), 349 U.S. 294 (1955).
60. See GRAHAM, supra note 58, at 371 (“Brown II, then, was a
conservative decision, as the relieved white South and the disappointed civil
rights community immediately perceived.” (emphasis in original)).
61. See FISS, supra note 32, at 6 (explaining that the civil rights injunction
as applied in Brown permits the courts to “look at the injunction through a
different substantive lens—a belief that the underlying claim—to achieve
equality for the racial minority—is just”).
62. PETER CHARLES HOFFER, THE LAW’S CONSCIENCE: EQUITABLE
CONSTITUTIONALISM IN AMERICA xii (1990).
63. Main, New Equity, supra note 20, at 350; see Main, Traditional
Equity, supra note 21, at 451; STORY, supra note 22, at 16.
64. Main, New Equity, supra note 20, at 350.
65. See Main, Traditional Equity, supra note 21, at 451 (“Whenever a
court of law was competent to take cognizance of a right and had the power to
proceed to a judgment that afforded . . . relief, the plaintiff had to proceed at
law because . . . the defendant had a right . . . available only in the law
66. “Intervention was premised on the notion that justice incorporated
the moral sense of the community, existing as a function not only of a
community’s technical rules but also of ‘magisterial good sense, unhampered
by rule . . . .’” Main, New Equity, supra note 20, at 351 (citing Roscoe Pound,
Justice According to Law, 13 COLUM. L. REV. 696, 701–02 (1913)). Traditional
1904 78 WASH. & LEE L. REV. 1889 (2022)
Significantly, these attributes of traditional equity operated
in concert with law and were interdependent with law.67
Equity’s role in doing justice derives from the inadequacies of
law.68 Equity intervened when legal outcomes were inconsistent
with the community’s conscience reflected through the
Chancellor.69 As Justice Story noted, the guiding principle of
equity was the justice of the common law, making equity
“sometimes concurrent,” “sometimes exclusive,” and “sometimes
auxiliary” to the common law.70 Equity responded to
inadequacies in law:
The remedy must have been plain; for if it be doubtful and
obscure at law, equity will assert a jurisdiction. . . . It must
have been adequate; for if at law it falls short of what the
party is entitled to, that founds a jurisdiction in equity. And
it must have been complete; that is, it must attain the full
end and justice of the case. It must have reached the whole
mischief and secure the whole right of the party in a perfect
manner at the present time and in future; otherwise equity
will interfere and give such relief and aid as the exigency of
the particular case may require. The jurisdiction of a court of
equity was, therefore, sometimes concurrent with the
jurisdiction of a court of law, it was sometimes exclusive of
it, and it was sometimes auxiliary to it.71
Where equity did intervene: equity’s in personam nature
suppressed the formation of precedent; its search for a plain,
adequate, and complete remedy at law avoided interference with
common law; and its emphasis on justice counseled hesitation
where the outcome of a decision in equity was less than clearly
in service of community notions of right.72 Equity thus counseled
equity served as a check on the universalizing tendency of law, focusing on the
specific case to convey the conscience of the community. See id.; Subrin, supra
note 46, at 918.
67. For a review of the debate over whether and to what extent equity
interfered with the Common Law or abated its rigors, see Main, New Equity,
supra note 20, at 370 n.196.
68. See id. at 351.
69. See id. at 370 (“[T]he very purpose of a separate system was to correct
or to mitigate injustices caused by the rigor of the common law.”).
70. STORY, supra note 22, at 20.
71. Id. at 19–20 (internal citations omitted).
72. Main, New Equity, supra note 20, at 371.
CIVIL RIGHTS EQUITY 1905
public interest balancing to obtain a just result.73 Traditional
equity’s intervention power is consequently more limited than it
might have seemed.74 Traditional equity was dynamic,
operating in a dialectical relationship with law and dependent
However, in the United States, the merger of law and equity
has largely limited our discussion of equity to remedies and,
because equity is no longer working as a supplement to the
common law, rendered equity static, rigid, and mostly
overlooked.76 But the merger also had liberating effects. It
permitted courts to tailor unique remedies that fit the right
violated without worrying about procedural, substantive, or
73. See Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law,
Non-Retroactivity, and Constitutional Remedies, 104 HARV. L. REV. 1731, 1780
(1991) (“Frequently the availability of equitable remedies depended, at least
in part, on a balancing calculus structured to reconcile public and private
74. As Main elaborates:
Equity did not claim to override the law. By acting in personam,
Equity could compel a person to perform a duty without directly
challenging or altering the defendant’s property rights and without
regard to any contrary judgment rendered in the Law courts.
“Equity” does not intend to set aside what is right and
just, nor does it try to pass judgment on a “strict Common
Law rule” by claiming that the latter is not well made. It
merely states that, in the interest of a truly effective and
fair administration of Justice, the “strict Common Law”
is not to be observed in some particular instance.
Moreover, Equity’s decision had no precedential effect even in
Equity, much less in Law. [Nor did] Equity [seek to] correct all
injustices. In fact, Equity left untouched, in full force and operation,
a great number of legal rules that were certainly harsh, unjust, and
unconscientious as any of those that it did confront.
Main, New Equity, supra note 20, at 371–72 (quoting Anton Hermann
Chroust, The “Common Good” and the Problem of “Equity” in the Philosophy
of Law of St. Thomas Aquinas, 18 NOTRE DAME L. REV. 114, 117 (1942)).
75. See Main, New Equity, supra note 20, at 375 (“As complements and
as rivals, separate systems of Law and Equity combined to administer the laws
for centuries with both certainty and discretion.”).
76. See id. at 387 (“For in denying Equity any structural autonomy, there
remains no relief from the procedures of the merged system itself when the
modes of proceeding in that system are inadequate. Thus when the
unanticipated situation arises, courts have no choice but to follow the
procedural rules drafted . . . .”).
1906 78 WASH. & LEE L. REV. 1889 (2022)
remedial limitations on that substantive right.77 This element of
the merger facilitated the Supreme Court’s Brown outcome,
even if worries remained about the lack of a remedy for the
individual plaintiffs in the case.78 Though the power invoked by
courts during the civil rights period was an awesome and broad
power, it was limited: it was an exceptional intervention,
justified by exceptional circumstances, and acting on deserving
This exceptional role for courts in extraordinary
circumstances was justified by another aspect of equity: its
pursuit of justice. Equity is more than the jurisprudential legacy
of traditional equity.80 Equity has long meant justice,
independent of the elaborate systems of traditional equity and
equitable remedies.81 This broad sense of equity is rooted in the
humanities and traces at least to Aristotle in the Western
tradition.82 Geared toward counterbalancing the rigidity of legal
77. According to Subrin, “Pound contended that substantive and
procedural common law concentrated too heavily on the individual and private
rights, thus neglecting the importance of the community and the need for
government protection of the individual.” Subrin, supra note 46, at 945 (citing
Roscoe Pound, The Causes of Popular Dissatisfaction with the Administration
of Justice, 29 A.B.A. REP. 395, 403–04 (1906)). This dissatisfaction underlay
the efforts to reform procedure and led to the FRCP, which Subrin sees as
particularly equity influenced. Subrin argues that the desire to permit judges
to do justice was a defining feature of the emergence of the FRCP (and a
departure from the Field Code), thus characterizing those rules. Subrin, supra
note 46, at 943–74.
78. See Reinert, supra note 39, at 933 (“Civil rights cases challenging
segregation were never about compensatory damages . . . . On this account,
the Court . . . has accepted a vision of public interest law in which damages
litigation is seen as less productive, less virtuous, and less admirable than
79. See, e.g., Subrin, supra note 46, at 926 (classifying Brown as a
“structural case that attempt[s] to re-interpret constitutional rights in light
of experience and evolving norms of what is humanitarian”).
80. See GARY WATT, EQUITY STIRRING: THE STORY OF JUSTICE BEYOND LAW
36 (2009) (outlining the various contextual uses of equity, including social
justice, equality of opportunity and resources, and fair wealth distribution).
81. See generally id.
82. See id. at 36–41. The typical cite is to ARISTOTLE, RHETORIC 143 (J. H.
Freese trans., 1926) (“For that which is equitable seems to be just, and equity
is justice that goes beyond the written law.”). Accord ARISTOTLE,
NICHOMACHEAN ETHICS 313 (H. Rackham trans., 1926) (“We have next to speak
of Equity and the equitable, and of their relation to Justice and to what is just
CIVIL RIGHTS EQUITY 1907
rules with a focus on the situation of the individual, equity
pursues just results characterized by flexibility (over
uniformity), specificity (over abstraction), and particularity
(over generality).83 This focus on the justice of outcomes has
unsurprisingly informed traditional equity and the
jurisprudence developed in its service.84 Equity as justice also
contributes to understandings of the good life, recognition,
liberty, and other ideas associated with justice in political and
social theory.85 This broad sense of equity as justice animates
the key substantive role of civil rights—remedying injustice.
The pursuit of justice gave weight to the Court’s
Civil-Rights-Movement-era jurisprudential developments,
charging courts to get the outcome right and justifying the
creative use of equitable remedies that became the structural
injunction. That civil rights jurisprudence today might be seen
as failing to address the social and political issues traditionally
associated with the Civil Rights Movement ought not be taken
as an abandonment of a justice-seeking mission. Quite the
contrary, civil rights jurisprudence has been reduced to almost
exclusively pursuing this kind of broad justice but does so in the
exceptional, supplemental way associated with the mission of
traditional equity.86 In routine cases, where injustice does not
strongly resonate with jurists, the civil rights equity that has
emerged points courts away from intervening; nonetheless, civil
rights’s mission remains the pursuit of justice.
Equity today also operates in the popular legal imagination.
Popular equity is an informal view of equity invoked by jurists
who draw on concepts established by traditional equity and use
it in professional legal discourse. It is “popular” in that it is
independent of the details of traditional equity jurisprudence,
83. See Subrin, supra note 46, at 918 (“Bills in equity were written to
persuade the Chancellor to relieve the petitioner from an alleged injustice that
would result from rigorous application of the common law.”).
84. See Main, New Equity, supra note 20, at 386 (“One virtue
of . . . Equity was its authority to act in opposition to the strict law when the
unique circumstances of a particular case demanded intervention.”).
85. See id. at 344–45.
86. See MCDOWELL, supra note 58, at 97–98 (“By ignoring the
particularity of each case, the Court could confine its attention to what it saw
as the unifying ‘legal question’ all of the [Brown] cases shared: the meaning of
equal protection of the laws and, accordingly, the meaning of equality under
1908 78 WASH. & LEE L. REV. 1889 (2022)
reflecting foundational concepts from equity but disconnected
from and unconstrained by its details.87 This popular equity
envisions equity as a supplement to law, available only where
legal remedies are inadequate to achieve justice, and only for
deserving claimants. These concepts are embedded in
prerequisites to invoking equitable remedies88 and have
something of a phantom presence in contemporary legal
discourse.89 After the merger of law and equity, these
prerequisites are seldom taught separately from remedies and,
87. Main identifies three usages of the term equity that roughly
correspond with those I have set out here. First, is the use of equity as that
which is “ethical rather than jural” and focuses on what is “moral, right, just
and good.” Main, New Equity, supra note 20, at 344. This is like the
equity-as-justice construction put forth here. Second, Main notes that equity
is associated with “natural justice,” conveying “the soul and spirit of all
law— the moral standard to which all law should conform.” Id. at 344–45
(internal quotation omitted). And third, Main speaks of the “technical
definition of Equity (a meaning typically signified by use of the capital letter
‘E’) [which] refers to that system of jurisprudence that was originally
administered by the High Court of Chancery in England,” and whose
emergence Main details in two works. Id. at 345–46; see id. at 346–53
(comparing Equity to the emergence and goals of ADR); Main, Traditional
Equity, supra note 21, at 437–52 (detailing Equity’s emergence and
juxtaposing it with the Common Law. Main’s third version of equity (Equity)
corresponds to the traditional equity referenced in this Article; however, his
second sense of equity does not have a close corollate with those used in this
Article. While Main’s second version of equity is not dissimilar from the
popular juridical equity discussed here, Main’s construction seems more like a
normative check on the operation of law that is substantively like his first
equity and, generally perhaps, operates through his third, more formal,
version of equity. I believe there is an intermediary version of equity operating
(juridical or popular equity) that combines both notions of justice and aspects
of the traditional system of equity but in an informal way, despite being done
by lawyers, judges, and commentators. It is less a normative claim about how
law ought to operate than a reference to a jurisprudential system that is said
to be extant and which is sometimes controlling in disputes.
88. See, e.g., City of Los Angeles v. Lyons, 461 U.S. 95, 103, 105, 109,
111– 13 (1983) (treating equitable requirements as stricter than the general
case-or-controversy requirement); O’Shea v. Littleton, 414 U.S. 488, 499 (1974)
89. See MCDOWELL, supra note 58, at 100 (“[T]hough [Warren] spoke of
the ‘traditional attributes’ and guiding ‘principles’ of equity as being
controlling, he ignored most of the more substantial equitable principles in
writing his decree [in Brown II].”).
CIVIL RIGHTS EQUITY 1909
outside of remedies, are generally no longer systematically
examined in jurisprudence and scholarship.90
Civil rights equity is a kind of popular equity, drawing on
equitable concepts, especially constraints on the invocation of
equity jurisdiction, to limit civil rights litigation. Focused on
judicial restraint, civil rights equity preserves the possibility of
judicial intervention in the interest of justice while working to
achieve the restraining goals associated with equity. Yet,
unmoored from the strictures of traditional equity, these goals
are immanent and go unexamined.
B. The Defining Role of Equity in the Creation of Modern
Civil rights are typically styled “civil rights law” because
civil rights are generally thought to be legal rights, recognized
by courts and conceived as comparable to private rights such as
property rights, rights created by contract, or rights to recover
for injuries caused by the fault of others. The suggestion that
civil rights are equity implies that “civil rights law” assumes too
much about how civil rights have been treated in American
courts. An examination of the emergence of civil rights during
the Civil Rights Movement highlights that the promise of a
property-like rights regime was never unequivocal and possibly
never predominant.91 Rights recognition and enforcement,
especially as related to efforts to dismantle Jim Crow, were
always heavily rooted in the federal judiciary’s equitable
powers, and private rights of action for monetary (legal) relief,
though widely recognized by courts, were not clearly spelled out
in the signature civil rights statutes and never independent of
90. Cf. Samuel L. Bray, The System of Equitable Remedies, 63 UCLA L.
REV. 530, 530 (2016) [hereinafter Bray, Systems of Equitable Remedies]
(explaining that there is a popular academic contention “that every distinctive
feature that is claimed for equity, such as a high degree of discretion or an
emphasis on fairness, can be found to the same degree in law”).
91. See, e.g., Brown II, 349 U.S. 294, 300 (1955) (“These cases call for the
exercise of these traditional attributes of equity power.”); Swann v.
Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 15 (1971) (“If school authorities
fail in their affirmative obligations under [Brown I and II], judicial authority
may be invoked. Once a right and a violation have been shown, the scope of a
district court’s equitable powers to remedy past wrongs is broad . . . .”).
1910 78 WASH. & LEE L. REV. 1889 (2022)
the possibility of equity relief.92 That civil rights enforcement
was always so flexible and conditioned likely obscured the
emergence of civil rights equity, as the approaches that
characterize civil rights equity were always prominent in civil
Civil rights have promised to provide protection to the core
values of American citizenship by treating constitutional and
statutory rights as the equivalent of private rights,93 the
infringement of which suggests the need for remedies to make
the holder of the right whole.94 Despite a proliferation of
Reconstruction Era Amendments and legislation, the
Reconstruction Era courts suppressed emergence of a rights
regime by holding that the Reconstruction constitutional
amendments established few relevant rights.95 This is especially
true of the Supreme Court’s insistence that the privileges and
immunities of American citizenship referenced by the
Fourteenth Amendment meant little.96 Similarly, the Court
read the statutory rights created under the authority of these
amendments as either beyond the authority the amendments
92. See, e.g., Civil Rights Act of 1964, Pub. L. No. 88-352, § 206, 78 Stat.
241, 245 (codified at 42 U.S.C. § 2000a-5) (empowering the Attorney General
to bring civil actions “requesting such preventative relief . . . necessary to
insure the full enjoyment of the rights herein described”).
93. Courts have occasionally emphasized the “rights” character of civil
rights. Recently in District of Columbia v. Heller, 554 U.S. 570 (2008), the
Supreme Court rejected “interest-balancing” as an appropriate approach to
interpreting the Second Amendment, referencing the First Amendment for
support. Id. at 634–35. At least for those two constitutional rights, the Court
speaks of commands limiting the government’s authority to act. See McDonald
v. City of Chicago, 561 U.S. 742, 791 (2010). “The Bill of Rights enshrines
negative liberties. It directs what government may not do to its citizens, rather
than what it must do for them.” Wisconsin Educ. Ass’n Council v. Walker, 705
F.3d 640, 645 (7th Cir. 2013); see Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353,
358 (2009) (stating that the First Amendment operates as a negative restraint
on governmental regulation of speech).
94. This view dates back to Marbury v. Madison, 5 U.S. 137, 163 (1803).
See Fallon & Meltzer, supra note 73, at 1778 (“Few principles of the American
constitutional tradition resonate more strongly than one stated in Marbury v.
Madison: for every violation of a right, there must be a remedy.”).
95. See Plessy v. Ferguson, 163 U.S. 537, 548 (1896).
96. See Slaughter-House Cases, 83 U.S. 36, 76–77 (1872).
CIVIL RIGHTS EQUITY 1911
granted or as lacking in substantive force.97 This is Eugene
Gressman’s “unhappy history” of civil rights law.98
Modern courts confronted these questions anew in the
1950s and 1960s. Though the courts and Congress embraced a
vision of rights as enforceable attributes of citizenship and as
necessary attributes of the equality that civil rights advocates
were seeking, their approach, at least in actions supporting the
Civil Rights Movement, relied on the judiciary’s equitable
powers. Brown and congressional enactments alike emphasized
courts’ equitable powers.99 Brown expressly rejected the
then-contemporary construction, “personal and present right,”
that the Court had underscored in Sweatt v. Painter100 and
which would have triggered access to money damages.101
Instead, Brown turns on the judiciary’s equity powers.102
Similarly, private rights of action were not clearly emphasized
and actions for damages are almost entirely absent in the 1960s
civil rights statutes.103 And though Supreme Court decisions
recognized private rights of action to enforce constitutional
rights as legal rights after Brown,104 the judicial and legislative
legacy related to the Civil Rights Movement evidences a
97. See The Civil Rights Cases, 109 U.S. 3, 25 (1883) (striking down
several provisions of the Civil Rights Act of 1875).
98. See generally Eugene Gressman, The Unhappy History of Civil Rights
Legislation, 50 MICH. L. REV. 1323 (1952).
99. See Brown II, 349 U.S. at 300 (“These cases call for the exercise of
these traditional attributes of equity power.”); Civil Rights Act of 1964, Pub.
L. No. 88-352, § 206, 78 Stat. 241, 245 (codified at 42 U.S.C. § 2000a-5)
(empowering the Attorney General to seek equitable relief to prevent
violations of the Act).
100. 339 U.S. 629 (1950); id. at 635.
101. See ALBERT P. BLAUSTEIN & CLARENCE CLYDE FERGUSON, JR.,
DESEGREGATION AND THE LAW: THE MEANING AND EFFECT OF THE SCHOOL
SEGREGATION CASES 161 (1957).
102. See Brown II, 349 U.S. 294, 300 (1955).
103. See Civil Rights Act of 1964, Pub. L. No. 88-352, § 206, 78 Stat. 241,
245 (codified at 42 U.S.C. § 2000a-5) (contemplating equitable relief).
104. See, e.g., Monroe v. Pape, 365 U.S. 167, 187 (1961) (permitting
damages suits against state officers under 42 U.S.C. § 1983); Bivens v. Six
Unknown Named Agents, 403 U.S. 388, 397 (1971) (permitting implied
damages actions against federal officers); Cannon v. Univ. of Chi., 441 U.S.
677, 717 (1979) (recognizing implied damages actions to enforce federal
statutory rights in some circumstances).
1912 78 WASH. & LEE L. REV. 1889 (2022)
reticence to foster a private law-like-entitlement view of civil
1. Brown and 1960s Civil Rights Statutes’ Focus on
Empowering Courts and the Attorney General
In Brown v. Board of Education (Brown I),105 the Supreme
Court famously overruled Plessy v. Ferguson,106 declaring that
separate but equal public education programs violate the
Fourteenth Amendment’s equal protection clause.107 Notably,
the decision avoided announcing a remedy. The Court reheard
the question of remedies and declared in Brown II that
desegregation should proceed “with all deliberate speed.”108
Brown II expressly relied on equity:
In fashioning and effectuating the decrees, the courts will be
guided by equitable principles. Traditionally, equity has
been characterized by a practical flexibility in shaping its
remedies and by a facility for adjusting and reconciling
public and private needs. These cases call for the exercise of
these traditional attributes of equity power. At stake is the
personal interest of the plaintiffs in admission to public
schools as soon as practicable on a nondiscriminatory basis.
To effectuate this interest may call for elimination of a
variety of obstacles in making the transition to school
systems operated in accordance with the constitutional
principles set forth in our May 17, 1954, decision.109
Under Brown II, school desegregation proceeded slowly in the
face of “massive resistance” in the South,110 not to mention the
nagging implication by many that Brown I was wrongly
105. 347 U.S. 483 (1954).
106. 163 U.S. 537 (1896).
107. Brown I, 347 U.S. at 495.
108. Brown II, 349 U.S. at 301.
109. Id. at 300 (footnotes omitted); see BLAUSTEIN & FERGUSON, supra note
101, at 158–79. Hoffer details the Court’s complex and “ambitious” efforts to
“fuse a very technical conception of equitable discretion based on the Balance
of Equity doctrine with Warren’s highly personal vision of equitable
discretion.” HOFFER, supra note 62, 180–90.
110. See generally MICHAEL KLARMAN, FROM JIM CROW TO CIVIL RIGHTS
CIVIL RIGHTS EQUITY 1913
decided,111 and despite the agreement among the Court and all
litigants that the “all deliberate speed” injunction was within
the Court’s powers.112
Looking back at this complicated, politically charged
context, it is perhaps easy to see Brown as establishing legal
rights113 and miss its overt reliance on federal courts’ equitable
powers, which, at the time at least, vested courts with
tremendous authority to order demounting of our segregated
system.114 Perhaps as importantly, the Court’s approach also
seemed to set out a framework that would define civil rights
going forward: the Court was departing from “law” to achieve a
just outcome by responding to an outrage (Jim Crow
segregation), where normal legal remedies were inadequate115
(the recurrent argument that Plessy was correctly decided but
morally wrong), in a way that was extraordinary (education
policy being generally left to states), and for deserving
complainants (innocent schoolchildren).116
Contemporaneous commentators saw Brown this way.
After a long discussion of the need for neutral principles,
Herbert Wechsler’s article, Toward Neutral Principles of
Constitutional Law, criticized the Brown opinion for being
111. See Herbert Wechsler, Toward Neutral Principles of Constitutional
Law, 73 HARV. L. REV. 1, 33 (1959); Alexander Bickel, The Original
Understanding and the Segregation Decision, 69 HARV. L. REV. 1, 59 (1955).
112. See BLAUSTEIN & FERGUSON, supra note 101, at 162–67. The NAACP
requested the plaintiffs’ immediate admission to segregated schools. Id. at
113. See Robert A. Leflar & Wylie H. Davis, Segregation in the Public
Schools—1953, 67 HARV. L. REV. 377, 425–26 (1954) (exploring potential
damages, such as monetary and criminal penalties against perpetrators of
segregation, as remedies for school segregation). This view of Brown is
summarized in Reinert, supra note 39, at 946–48.
114. See Reinert, supra note 39, at 946 (“[T]he Court is consolidating its
power. And moving civil rights litigation into the equitable camp is one way of
doing so, because equity is controlled by judges.”)
115. See BLAUSTEIN & FERGUSON, supra note 101, at 162 (“[Brown] had to
invoke equity or chancery power of the courts to obtain the desired relief.”).
116. See id. at 162–63 (“In making its decree, the court of equity fashions
its remedy. It gives direct orders to litigating parties. It may also impose
conditions on their duty to obey.”).
1914 78 WASH. & LEE L. REV. 1889 (2022)
unprincipled.117 Wechsler supported the outcome of the
decision,118 and dismissed the significance of most criticisms of
the Brown opinion,119 giving his charge more weight. Similarly,
Alexander Bickel took up the legislative history question that
Brown avoided, concluding that the history of the Fourteenth
Amendment did not support Brown’s position.120 Together, the
opinions of influential scholars who nonetheless supported the
outcome of the decision cemented a view of Brown as a morally
necessary departure from normal constitutionalism—that is, an
equity-like departure from constraining legal doctrine in the
interest of justice.121 Beyond Brown II’s reliance on equitable
powers, the two Brown decisions duplicated the structure of
traditional equity in this way, a structure that would become
civil rights equity when federal courts’ equitable powers were
Congressional enactments continued down this path. In a
series of major enactments, Congress sought to respond to the
demands of the Civil Rights Movement activists as the
movement simultaneously gained steam and splintered.122 In
those enactments, Congress identified new rights but was at
best unclear on structuring those rights as enforceable,
property-like entitlements. In fact,
Congress’s first response to the imperative of racial equality
entailed in Brown was not to enunciate substantive rights,
but rather to authorize the Attorney General to bring
injunctive suits to implement the Fifteenth Amendment.
This occurred in the Civil Rights Act of 1957. The very next
congressional initiative, the Civil Rights Act of 1960, was in
117. See Wechsler, supra note 111, at 32–33 (stating that Brown’s outcome
required looking into the legislature’s motivations, which courts typically
118. See id. at 27.
119. Id. at 31–34.
120. See Bickel, supra note 111, at 58–59, 64–65.
121. See BLAUSTEIN & FERGUSON, supra note 101, at 162 (explaining that
financial remuneration was “obviously” not an adequate remedy for Brown’s
122. See CHARLES WHALEN & BARBARA WHALEN, THE LONGEST DEBATE: A
LEGISLATIVE HISTORY OF THE 1964 CIVIL RIGHTS ACT 58 (1985) (describing how
violent responses to Martin Luther King Jr.’s peaceful protests led John F.
Kennedy to send a civil rights bill to Congress).
CIVIL RIGHTS EQUITY 1915
large part intended to perfect the Attorney General’s
injunctive weaponry on behalf of voting rights.123
Describing the situation prior to the passage of the Civil
Rights Act of 1957 and the debates that led to it, Judge John
Minor Wisdom emphasized the central role of equitable
remedies in Congress’s efforts to overcome widely acknowledged
impediments to protecting civil rights activists.
In the field of civil rights the problem of enforcement is more
difficult than the problem of legislative definition. The choice
of remedy determines whether an act of Congress simply
declares a right or carries machinery for meaningful
performance of the statutory promise. In the past, an obvious
hiatus has been the lack of effective sanctions against
private persons interfering with a citizen’s exercise of a civil
right. This lack may be explained by a number of reasons. (a)
Congress has been reluctant to assert affirmatively by
legislation its responsibility to protect the privileges and
immunities of citizens of the United States, for fear of
imperiling the balanced relationship between the states and
the Nation. (b) Courts have narrowly construed criminal
sanctions available in Sections 241 and 242 of Title 18. (c)
Congress and the courts have been severely limited by the
doctrine of state action, in spite of the trend toward an
expansive view of what is state action. (d) Congress has been
wary of using an equitable remedy in civil rights legislation.
The Constitution guarantees an accused in a criminal case
the right to indictment by a grand jury and trial by a jury of
the vicinage. Enforcement of civil rights through the use of
an injunction and the contempt power of the courts would
by-pass the jury system. However, in communities hostile to
civil rights and resentful against ‘outside’, that is, federal
interference, injunctive relief may be the most effective
method of enforcing civil rights.
Congress considered the pros and cons of these and many
other issues when the Administration submitted an omnibus
civil rights bill in 1956. The focal issues—the contempt
power, the jury system, and the relationship of the States
with the Nation—produced one of the great debates in
American parliamentary history. By the time the bill was cut
123. FISS, supra note 32, at 21 (citing Civil Rights Act of 1957, Pub. L. No.
85-315, § 131(c), 71 Stat. 634, 637; Civil Rights Act of 1960, Pub. L. No. 86-449,
§ 601, 74 Stat. 86, 90–91.
1916 78 WASH. & LEE L. REV. 1889 (2022)
down to a voting rights law, as the Civil Rights Act of 1957,
71 Stat. 634, Congress and the country thoroughly
understood the significance of the legislation. Congress had
opened the door, then nearly shut, to national responsibility
for protecting civil rights—created or guaranteed by the
Nation—by injunction proceedings against private
Wisdom’s recitation tellingly never considers civil actions for
damages (legal actions) as a means to address the civil rights
challenge.125 In the Civil Rights Act of 1957, he saw the
beginning of an effective legislative assault on Jim Crow
through expansion of equity power.126
In the Civil Rights Act of 1964,127 Congress broadly banned
discrimination in public accommodations128 and public
facilities,129 by recipients of federal funds,130 and in
employment.131 Beginning with that Act, Congress either did not
set out an enforcement mechanism or created systems that
combined administrative review and judicial actions for
124. United States v. Original Knights of the Ku Klux Klan, 250 F. Supp.
330, 344–46 (E.D. La. 1965) (footnotes omitted) (emphasis added).
125. See id. at 345 (“[I]n communities hostile to civil rights and resentful
against . . . federal interference, injunctive relief may be the most effective
method of enforcing civil rights.”).
126. See id. at 349.
127. Pub. L. No. 88-352, 78 Stat. 241.
128. Id. § 201, 78 Stat. at 243–245.
129. Id. § 301, 78 Stat. at 246.
130. Id. § 601, 78 Stat. at 252.
131. Id. § 701, 78 Stat. at 253–255. The Act also protected voting rights,
amending the Civil Rights Act of 1957 to prevent persons acting under color of
state law from using ad hoc standards to determine a person’s qualification to
vote, denying the right to vote because of immaterial errors in the voter’s
registration record, or employing literacy tests as a qualification for voting in
designated circumstances. Id. § 101, 78 Stat. at 241–242. It addressed
desegregation of public education in Title IV, id. § 401, 78 Stat. at 246–249;
created the Commission on Civil Rights in Title V, id. § 501, 78 Stat. at
249– 252; provided for the collection of data on voter registration in Title VIII,
id. § 801, 78 Stat. at 266; provided a procedure for appeal after remand of civil
rights cases that had been removed to federal court and for the intervention of
the Attorney General in civil rights cases in Title IX, id. § 901, 78 Stat. at
266– 67; and created a Community Relations Service in Title X, id. § 1001, 78
Stat. at 267. The bulk of the Act (thirteen of the Act’s twenty-eight pages) was
devoted to Title VII, id. § 701, 78 Stat. at 253–266, but most of the attention
in the debates was directed to Title II, id. § 201, 78 Stat. at 243–246.
CIVIL RIGHTS EQUITY 1917
equitable relief.132 For Title VI, where Congress did not provide
a judicial remedy, one could reasonably have anticipated that
the various agencies distributing federal funds might provide
enforcement.133 But for Title II, the provision banning
discrimination in public accommodations about which most of
the debate on the Act focused, such enforcement would make no
sense, as there were no agencies with authority over the wide
range of public accommodations implicated by the Act.134 To
address this, the Title anticipated an equitable action by the
aggrieved party and was titled, “Injunctive Relief Against
Discrimination in Places of Public Accommodation.”135 In fact,
132. See id. §§ 301–308, 78 Stat. at 246 (failing to provide a remedy).
133. In fact, that is what the Title calls for: federal departments and
agencies are directed to issue “rules, regulations, or orders of general
applicability” to achieve the objectives of the Act—elimination of
discrimination on the basis of race color or national origin—and compliance
with such requirements “may be effected (1) by the termination of” funding so
long as “there has been an express finding on the record, after opportunity for
hearing, of a failure to comply with such requirement” and after voluntary
efforts to achieve compliance have failed. Id. § 602, 78 Stat. at 252–293; see
Caulfield v. Bd. of Educ., 632 F.2d 999, 1005 (2d Cir. 1980) (“Title VI
enforcement procedures apply to the Board’s teacher hiring and assignment
practices and . . . HEW therefore had jurisdiction to investigate and seek
compliance.”). The Supreme Court assumed that Congress intended a private
right of action for damages to be available under Title VI, see Cannon v.
University of Chicago, 441 U.S. 667, 696 (1979) (stating that Title IX was
modeled after Title VI, and that Title VI had “been construed as creating a
private remedy”), a view confirmed by Guardians Ass’n v. Civil Service
Commission, 463 U.S. 582, 597 (1983) (explaining that the private cause of
action from Title VI was not expressly created by Congress but implied by the
134. See Civil Rights Act of 1964, § 201(b)(1)–(4), 78 Stat. at 243
(explaining that inns, hotels, motels, restaurants, lunchrooms, movie theaters,
and sports stadiums, among others, fall under the Act).
135. Id. § 204, 78 Stat. at 243–44. The enforcement anticipated was “a civil
action for preventive relief, including an application for a permanent or
temporary injunction, restraining order, or other order” by the “person
aggrieved,” id. § 204(a), 78 Stat. at 244, and “a reasonable attorney’s fee as
part of the costs” for the prevailing party, id. § 204(b), 78 Stat. at 244.
Tellingly, the constitutionality of the Act, was tested not by efforts to enforce
the Act but by declaratory judgment and injunctive actions brought by
supporters of segregation in public accommodations seeking to have the Act
declared unconstitutional. See Katzenbach v. McClung, 379 U.S. 294, 305
(1964) (“We find it in no violation of any express limitations of the Constitution
and we therefore declare it valid.”); Heart of Atlanta Motel, Inc. v. United
States, 379 U.S. 241, 243 (1964) (“The appellant contends that Congress in
passing this Act exceeded its power to regulate commerce . . . .”).
1918 78 WASH. & LEE L. REV. 1889 (2022)
Title II excluded other presumably legal remedies like
damages.136 Congress’s actions in Title VII, the employment
discrimination provision, raised even more questions. Right
before the bill passed out of the House Judiciary Committee, a
NLRB-like EEOC with adjudicatory powers was replaced with
the current version.137 Senators then added the private right of
action, replacing a remedial structure that was primarily
administrative with a hybrid one that required administrative
“conciliation” efforts but permitted lawsuits by individuals.138
While this version gives preference to private litigation over
administrative enforcement, the private suits authorized by
Title VII provided only “equitable” relief.139
If rights create a form of property, the enforcement of such
rights in various parts of Congress’s signature civil rights
enactment were administrative (Title VI), unclear (Title III),140
136. Civil Rights Act of 1964, § 205, 78 Stat. at 244–45. While it is arguably
hard to anticipate the consequential damages one might encounter from being
excluded from, say, an ice cream shop, even on a hot day, segregation extended
to essential services like hospitals, where the damages caused by exclusion
were already extant. See Cara A. Fauci, Racism and Health Care in America:
Legal Responses to Racial Disparities in the Allocation of Kidneys, 21 B.C.
THIRD WORLD L.J. 35, 39–40 (2001) (explaining how segregation of medical
services harmed Black people during the Jim Crow Era).
137. See Chuck Henson, Title VII Works—That’s Why We Don’t Like It, 2
U. MIA. RACE & SOC. JUS. L. REV. 41, 72–74 (2012) (“The Judiciary Committee
stripped out the judicial function entirely. All that remained was the
Commission’s ability to seek judicial relief for discrimination when conciliation
failed.”); WHALEN & WHALEN, supra note 122, at 58 (“Title VII (Equal
Employment) was retained, but the commission’s powers were limited to
investigation and conciliation.”).
138. See Henson, supra note 137, at 83.
139. Section 706 sets out the administrative process precedent to a suit,
permitting “a civil action . . . brought against the respondent named in the
charge” filed with the EEOC or state agency by the aggrieved party. Civil
Rights Act of 1964, § 706(e), 78 Stat. at 260. If a court finds an unlawful
employment practice, “the court may enjoin the respondent from engaging in
such unlawful employment practice, and order such affirmative action as may
be appropriate,” including “reinstatement or hiring of employees, with or
without back pay,” id. § 706(g), 78 Stat. at 261, along with a reasonable
attorney’s fee, id. § 706(k), 78 Stat. at 261.
140. Title III empowered the Attorney General to bring an action when
individuals were denied access to public facilities (other than schools and
public colleges) on the basis of race, color, religion, or national origin, for “such
relief as may be appropriate.” Id. § 301(a), 78 Stat. at 246. Title III is unclear
because in Section 303 it reserves the prospect of suit by “any person” for such
exclusion. Id. § 303, 78 Stat. at 246.
CIVIL RIGHTS EQUITY 1919
complex (Titles II and VII), and in all cases, “equitable” rather
than “legal.”141 Courts would quickly recognize private rights of
action to enforce Titles II and IV, but even for those causes,
equitable remedies seemed to be the primary focus. Indeed, soon
after the passage of the Act, the Supreme Court embraced
private litigation as an important aspect of successful
enforcement of the Civil Rights Act of 1964, while casting doubt
on damages actions as an appropriate way to be a “private
The Voting Rights Act of 1965143 concerned issues of grave
importance to the activists of the Civil Rights Movement, which
they believed would grant them significant political power in the
many jurisdictions in the South where activism was most
focused.144 One might have expected it to create clear,
enforceable individual rights. At the same time, the Act involved
voting systems that are varied, complex, and typically controlled
by state and local governments, suggesting the Act would create
a regulatory regime. Unsurprisingly, the Act’s structure
contains a mixture of individual rights combined with
141. See Reinert, supra note 39, at 932 (stating that the Court has crafted
equitable or injunctive relief in civil rights litigation rather than legal or
142. “When a plaintiff brings an action under that Title [II], he cannot
recover damages. If he 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.” Newman v. Piggie Park Enters., Inc., 390
U.S. 400, 402 (1968).
143. Pub. L. No. 89-110, 79 Stat. 437 (1965) (codified at 42 U.S.C. § 1973)
(current version at 52 U.S.C. § 10301). References to the Voting Rights Act
here are to the earlier designation. The Voting Rights Act’s operation was
limited to five years, necessitating reauthorization. Extensions in 1970, Pub.
L. No. 91-285, 84 Stat. 315 (1970); 1975, Pub. L. No. 94-73, 89 Stat. 402 (1975);
1982, Pub. L. No. 97-205, 96 Stat. 134 (1982); and 2006, Pub. L. No. 109-246,
120 Stat. 580 (2006), imported significant substantive changes to the Act, often
to reverse narrow judicial interpretations. The last two reauthorizations were
for twenty-five years each.
144. Consequently, voting rights were the subject of the Civil Rights Acts
of 1957, 42 U.S.C. § 1971(b), and the Civil Rights Act of 1960, 42 U.S.C.
§ 1971(e), and were protected in the Civil Rights Act of 1964, 42 U.S.C.
§ 1971(a)(2)(A)–(C). Together, these Acts prohibited intimidation intended to
interfere with the right to vote. See, e.g., United States v. Original Knights of
the Ku Klux Klan, 250 F. Supp. 330, 347–49 (E.D. La. 1965). Remedies under
these statutes are specifically equitable. See United States v. Ramsey, 331
F.2d 824, 829 (5th Cir. 1964).
1920 78 WASH. & LEE L. REV. 1889 (2022)
regulations on jurisdictions setting voting rules and
qualifications.145 Along with the Twenty-Fourth Amendment
that, in 1964, prohibited the poll tax, the Voting Rights Act’s
Section 2 constructed the right to vote as a valuable right to be
No voting qualification or prerequisite to voting or standard,
practice, or procedure shall be imposed or applied by any
State or political subdivision in a manner which results in a
denial or abridgement of the right of any citizen of the United
States to vote on account of race or color . . . .146
The Voting Rights Act—like the Civil Rights Act of 1964—was
perhaps surprisingly equivocal on how this right was to be
enforced. The statute provided criminal penalties for violating
the Act and a supervisory structure with Federal Examiners in
certain jurisdictions as well as poll watchers.147 But the Act
refers again and again to the Attorney General bringing
injunctive or declaratory judgment actions to enforce various
provisions of the Act.148 The language of the Act focuses on
actors engaged in prohibited behavior and actions by the
Attorney General to stop the illegal behavior without
referencing individual beneficiaries of the Act.149 The Act’s
“right” seems to stop short of providing individually enforceable
property-like entitlements to vote.
Section 3, the general enforcement provision of the Act, is a
broad grant of authority to the Attorney General to proceed
“under any statute to enforce the voting guarantees of the
fourteenth or fifteenth amendment.”150 Changes in voting rules
145. See Voting Rights Act of 1965, § 7(b), 79 Stat. at 440 (describing
eligible voters); id. § 4, 79 Stat. at 438 (explaining types of banned tests in
determining eligible voters).
146. 42 U.S.C. § 1973 (transferred to 52 U.S.C. § 10301).
147. See 52 U.S.C. § 10302.
149. See id. § 10302(b).
150. 42 U.S.C. § 1973(a) (transferred to 52 U.S.C. § 10302(a)). Section 4
similarly provided enforcement authority to the Attorney General to enforce
the Section’s prohibition on voting tests. Id. § 1973(b) (transferred to 52 U.S.C.
§ 10303). Subsection (b) of this Section has been held unconstitutional. See
Shelby County v. Holder, 570 U.S. 529, 544 (2013) (stating that the Section
violates the fundamental constitutional principle of equal sovereignty among
CIVIL RIGHTS EQUITY 1921
required preclearance under the Act’s Section 5,151 and the
Court would soon acknowledge that private individuals could
seek equitable and declaratory relief to block new voting
requirements in violation of Section 5.152 This right of action
extended to Section 2 enforcement, but the text of that Section
both creates an individual right (no voting rules can deny or
abridge “the right of any citizen . . . to vote on account of race or
color”153) and anticipates that the Attorney General will enforce
151. 42 U.S.C. § 1973(c) (transferred to 52 § 10304(a)). The power of
Section 5 has been rendered inoperative by the holding that Section 4 was
unconstitutional. See Shelby County, 570 U.S. at 557 (“Our country has
changed, and while any racial discrimination in voting is too much, Congress
must ensure that the legislation it passes to remedy that problem speaks to
152. See Allen v. State Bd. of Elections, 393 U.S. 544, 557 (1969)
(concluding it is consistent with the purpose of the Act to allow private citizens
to seek judicial enforcement of Section 5). The court in Allen described the
confusion around the issue:
Section 12(f) of the Act . . . provides: ‘The district courts of the
United States shall have jurisdiction of proceedings instituted
pursuant to this section and shall exercise the same without regard
to whether a person asserting rights under the provisions of this Act
shall have exhausted any administrative or other remedies that
may be provided by law.
Appellants have argued this section necessarily implies that
private parties may bring suit under the Act, relying on the
language “a person.” While this argument has some force, the
question is not free from doubt, since the specific references
throughout the other subsections of § 12 are to the Attorney
General. E.g., §§ 12(d) and 12(e). However, we find merit in the
argument that the specific references to the Attorney General were
included to give the Attorney General power to bring suit to enforce
what might otherwise be viewed as “private” rights.
In any event, there is certainly no specific exclusion of private
actions. Section 12(f) is at least compatible with 28 U.S.C. § 1343
and might be viewed as authorizing private actions.
Id. at 555 n.18 (emphasis added) (citations omitted). In any event, the
continued viability of such an implied right is called into doubt by the Court’s
recent, more restrictive view of implied rights of action. Cf. Ziglar v. Abbasi,
137 S. Ct. 1843, 1855 (2017) (raising doubts about the continuing viability of
implying rights of action in Bivens suits).
153. 52 U.S.C. § 10301(a). The Supreme Court casts doubt on the private
right for Section 2, stating that it was “[a]ssuming, for present purposes, that
there exists a private right of action to enforce this statutory provision.” City
of Mobile v. Bolden, 446 U.S. 55, 60 (1980). But the Court mooted the question
by holding that Section 2 was coextensive with the Fifteenth Amendment. Id.
1922 78 WASH. & LEE L. REV. 1889 (2022)
that right through equitable remedies (injunction and
declaratory judgment).154 Like the 1964 Act, the Voting Rights
Act seems to create rights but provides a complex enforcement
structure that is as much equitable as legal and centers on
protecting voting rights as much as it lends voting rights
property-like character. The private right of action recognized
by courts was as much an avenue to invoking the Court’s
considerable equitable powers as a recognition of any
Congress’s other major legislative effort in response to the
Civil Rights Movement, the Fair Housing Act of 1968,155 is even
more complex. The Act, which prohibits discrimination in
various aspects of the sale and rental of housing,156 echoes the
1964 Civil Rights Act. First, like Title VI of the 1964 Act, its
definition of substantive scope extends the Act, upon passage, to
entities receiving federal funds.157 Second, it roughly duplicates
the enforcement structure of Title VII of the 1964 Civil Rights
Act: the Act charges the Secretary of Housing and Urban
Development to receive complaints (Section 810(a)) and to
conduct investigations and lead conciliation efforts, subject to an
at 61. Bolden was legislatively overruled, eliminating the intent requirement
imposed on Section 2 by this reading and permitting suits premised on
discriminatory effect of voting regulations. See Voting Rights Act Amendments
of 1982, Pub. L. No. 97-205, 96 Stat. 131, 131. The Court has subjected these
suits to a “totality of the circumstances” test. See Thornburg v. Gingles, 478
U.S. 30, 43 (1986). One commentator has noted, “Interestingly, § 2 does not
expressly confer a right of action, though the Supreme Court has routinely
allowed private enforcement of this provision.” Daniel P. Tokaji, Public Rights
and Private Rights of Action: The Enforcement of Federal Election Laws, 44
IND. L. REV. 113, 138 n.198 (2010) (citing Johnson v. De Grandy, 512 U.S. 997
(1994); Chisom v. Roemer, 501 U.S. 380 (1991)).
154. Though a declaratory judgment is not strictly an equitable remedy, it
operates much like the injunction to which it is tied here. Samuel L. Bray, The
Myth of the Mild Declaratory Judgment, 63 DUKE L.J. 1091, 1143 (2014).
155. Pub. L. No. 90-284, 82 Stat. 73, 81.
156. Id. §§ 804–806, 82 Stat. at 83–84. The prohibitions on discrimination
are subject to exemptions for religious organizations and private clubs, id.
§ 807, 82 Stat. at 84; for bona fide private sales of private dwellings, id.
§ 803(b)(1), 82 Stat. at 82; and for sales and rentals of units in small,
multifamily housing facilities occupied by the owner, id. § 803(b)(2), 82 Stat.
157. Id. § 803(a)(1)(A)–(D), 82 Stat. at 82. The Act went into effect for other
housing on December 31, 1968. Id. § 803(a)(2), 82 Stat. at 82.
CIVIL RIGHTS EQUITY 1923
obligation to defer to existing state or local procedures;158 it
charges the Secretary to use “informal methods of conference,
conciliation, and persuasion;”159 and, if the Secretary’s efforts do
not resolve the dispute, it permits “persons aggrieved” to file a
civil action in federal district court “to enforce the rights granted
or protected” by the Act.160
In enacting of the Fair Housing Act, Congress created a
mixed remedial system with both legal and equitable attributes.
Section 810(d) emphasizes that in a private suit under the Act161
a “court may . . . enjoin the respondent from engaging in such
[discriminatory] practice or order such affirmative action as may
be appropriate.”162 But Section 812(c), which sets out the
remedies available in such an action, authorizes both equitable
and legal remedies, along with costs and fees for prevailing
The Fair Housing Act seems to reflect the merger of law and
equity in a context in which Congress expects private litigation
to drive enforcement of the Act, subject to administrative efforts
to head off litigation that are designed to permit the Secretary
to obtain necessary information to educate the public (Sections
808 and 809).164 The Attorney General is authorized to bring
pattern and practice suits in a companion Section165 but the
Act’s enforcement is built around private litigation with both
equitable and legal remedies available.166 The Fair Housing Act
158. Id. § 810(c), 82 Stat. at 86.
159. Id. § 810(a), 82 Stat. at 85.
160. Id. § 810(d), 82 Stat. at 86.
161. Private civil actions are authorized by id. § 812, 82 Stat. 73, 88.
162. Id. § 810(d), 82 Stat. at 86.
163. Courts are authorized to issue permanent or temporary injunctions,
temporary restraining orders, and other orders, but can also award actual
damages and punitive damages up to $1,000. Id. § 812(c), 82 Stat. at 88.
164. See id. §§ 808809, 82 Stat. at 84–85 (laying out the Secretary’s
165. Title IX of the Act prohibits intimidation in fair housing, id. § 901, 82
Stat. at 89–90, supplementing the Attorney General’s right, granted in
Section 813, 82 Stat. at 88, to enforce the Act.
166. The Act was substantially amended in 1988 with a specific focus on
improving the remedial process by providing for an administrative
enforcement system before administrative law judges, private civil actions in
courts, and the “pattern or practice” cases brought by the Justice Department.
Fair Housing Amendments Act of 1988, Pub. L. No. 100-430, § 814, 102 Stat.
1619, 1634. The 1988 amendments replaced Sections 810–813 with new
1924 78 WASH. & LEE L. REV. 1889 (2022)
shows the rapid evolution of civil rights enforcement thinking
from the contested, hedged, and primarily equitable structure of
the Civil Rights Act of 1964. In part, this reflects the legal rights
approach that was developing in the courts throughout the
2. Emergence of a Parallel “Rights” Regime
Throughout the 1960s, the private-right-of-action strain of
rights enforcement would gain momentum. As the Court upheld
the constitutionality of and clarified the availability of
individual causes of action to enforce rights under the three
seminal civil rights statutes, it identified additional causes of
action against racial discrimination under remains of the
Reconstruction-era civil rights statues. In Jones v. Alfred
Mayer,167 the Court recognized a cause of action to enforce a
prohibition on discrimination in housing under 42 U.S.C.
§ 1982.168 It later upheld a cause of action to enforce a
prohibition on racial discrimination in contracts under 42 U.S.C.
§ 1981.169 Notwithstanding the focus on equitable remedies in
the Civil Rights Act of 1964 and the Voting Rights Act of 1965,
and the complex structure of the Fair Housing Act of 1968,
actions at law for damages became available in housing and
employment discrimination cases. Implied rights of action had
been recognized to challenge discrimination in federally-funded
programs and voting rights,170 providing damages as a remedy
in the former.171 This background of private rights of action
informed Congress’s subsequent legislation prohibiting
language. Id. The new enforcement structure preserves the remedial blend of
damages, equitable relief, and attorney’s fees. Id. § 813(c), 102 Stat. at 1633.
167. 392 U.S. 409 (1968).
168. See id. at 413.
169. See Runyon v. McCrary, 427 U.S. 160, 168 (1976) (“It is now well
established that . . . 42 U.S.C. § 1981, prohibits racial discrimination in the
making and enforcement of private contracts.”); Johnson v. Ry. Express
Agency, Inc., 421 U.S. 454, 459–60 (1975) (“[Section] 1981 affords a federal
remedy against discrimination in private employment on the basis of race.”).
170. See, e.g., Tokaji, supra note 153, at 126–33 (summarizing the rise and
fall of implied rights of action).
171. See id. at 126 (“[W]here [violation of a federal statute] results in
damage to one of the class for whose especial benefit the statute was enacted,
the right to recover damages from the party in default is implied.” (quoting
Tex. & Pac. Ry. Co. v. Rigsby, 241 U.S. 33, 39 (1916))).
CIVIL RIGHTS EQUITY 1925
discrimination on the basis of sex among recipients of federal
educational funds (Title IX)172 and discrimination on the basis
of age in the Age Discrimination in Employment Act (ADEA) of
1975.173 And though Title IX was silent on a private right of
action and the ADEA relied on a complex Fair Labor Standards
Act administrative structure, the private right of action was
widely assumed to exist and to provide access to legal
remedies—that is, money damages.174
This enforceable-legal-rights strain of civil rights
jurisprudence emerged in 1961 with the Supreme Court’s
decision in Monroe v. Pape.175 Monroe facilitated suits in law or
equity under § 1983 of the 1871 Civil Rights Act by reading
“under color of state law” to include behavior that was not
specifically authorized by the state but undertaken by a person
clothed in state authority.176 In doing so, Monroe gave practical
meaning to the selective incorporation of the Bill of Rights
against the states through the Fourteenth Amendment.177 But
the true effect was the creation of an avenue for enforcement of
constitutional rights through actions for damages—actions at
The promise that Monroe would make civil rights into
property-like entitlements enforceable on par with private
rights was not to be realized. Beginning in the 1970s, the Court
aggressively limited suits for recovery of money damages,179
172. 20 U.S.C. §§ 1681–1686.
173. 29 U.S.C. §§ 621–634.
174. See, e.g., Cannon v. Univ. of Chi., 441 U.S. 677, 717 (1979) (holding
that an implied private right of action exists under Title IX); Franklin v.
Gwinnett Cnty Pub. Schs., 503 U.S. 60, 76 (1992) (holding that a “damages
remedy is available for an action brought to enforce Title IX”).
175. 365 U.S. 167 (1961).
176. Id. at 184.
177. See id. at 171.
178. See id. at 172.
179. See, e.g., Alexander v. Sandoval, 531 U.S. 275, 293 (2001) (holding
that a private right of action under Title VI does not permit disparate impact
proof); Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 324 (2015)
(stating that the Supremacy Clause does not create a cause of action to seek
injunctive relief against the enforcement or implementation of state
1926 78 WASH. & LEE L. REV. 1889 (2022)
even as it created hurdles to and limits on equitable relief.180
However much the Court’s efforts were aimed at limiting the
kinds of rights suits that could be litigated, its efforts have not
led to a repudiation of those rights.181 Rather, this Article’s core
argument is that the Court has recast these enforceable legal
claims in the shape of equity to cabin their effect while
preserving their application in certain cases. Efforts to reduce
the role of equitable remedies in the complex social-change cases
that Abram Chayes famously called “structural reform”182 led
courts to similarly limit damages actions.183
Monroe’s damages-based approach departed from the
“eradicating Jim Crow” approach of Brown and presaged the
post-structural reform, legal remedies-focused character of civil
rights actions to come.184 With a parallel system of rights
operating to compliment the Brown-based approach, damages
and equitable actions would ebb and flow as primary means of
enforcing rights.185 Even as damages actions gained acceptance
and were incorporated into civil rights statutes like the Fair
180. See David Rudovsky, Running in Place: The Paradox of Expanding
Rights and Restricted Remedies, 2005 U. ILL. L. REV. 1199, 1235 (2005) (“Over
the past twenty-five years, the Supreme Court has limited the scope and reach
of these injunctions . . . based on federalism, comity, and separation of powers
181. See id. at 1235–41 (describing the adverse impact on civil rights
injunctions during the second half of the 20th century as “substantial, but not
182. Abram Chayes, The Role of the Judge in Public Law Litigation, 89
HARV. L. REV. 1281, 1284 (1976).
183. See id. at 1292 (“It is perhaps too soon to reverse the traditional
maxim to read that money damages will be awarded only when no suitable
form of specific relief can be devised. But surely, the old sense of equitable
remedies as ‘extraordinary’ has faded.”).
184. Compare Monroe, 365 U.S. at 170–75 (focusing on Congress’s
intention to give “to any person who may have been injured in any of his rights,
privileges, or immunities of person or property, a civil action for damages
against the wrongdoer”), with Brown I, 347 U.S. 483, 487–93 (1954) (focusing
on the “circumstances surrounding the adoption of the Fourteenth
Amendment” and “the effect of segregation itself on public education”).
185. See Reinert, supra note 39, at 947–48 (explaining how the Court’s
equitable remedy in Brown created a preference of providing equitable, instead
of monetary damages, in civil rights cases); John M. Greabe, Constitutional
Remedies and Public Interest Balancing, 21 WM. & MARY BILL RTS. J. 857,
872– 73 (2013) (discussing the prevalence of injunctions to remedy civil rights
issues in the decades after Brown).
CIVIL RIGHTS EQUITY 1927
Housing Act of 1968 or allowed as judicially recognized means
of enforcing aspects of the 1964 Civil Rights Act and 1965 Voting
Rights Act, the emerging structural injunction—which arguably
became synonymous with civil rights for a time—was the main
mechanism for confronting Jim Crow.186
The choice of a primarily equitable approach to the Court’s
initial confrontation with Jim Crow in Brown set the terms for
civil rights equity. Civil rights during this period was
predominantly equitable. But perhaps more significantly, civil
rights came to echo the role and shape of traditional equity—it
was an exceptional tool for an extraordinary problem, wielded
in the pursuit of justice for innocent children. The dramatic
social consequences of the Brown decision and the momentous
legislative victories that the 1960s Civil Rights Acts represented
may have obscured that the choice of equity was a compromise
and relatively conservative.187 When the Court’s focus shifted
away from confrontation with Jim Crow, these choices would
continue to frame civil rights suits as exceptional interventions,
for extraordinary situations, and for deserving complainants.
II. CIVIL RIGHTS EQUITY: STRUCTURING RIGHTS LITIGATION
IN THE POST-CIVIL-RIGHTS ERA
Civil rights are equity because it came to operate under
limitations on litigation drawn directly and indirectly from
traditional equity restraints.188 The effect of these limitations is
the creation of a hierarchy of rights that both defines civil rights
equity and is defined by the assumptions of what cases are
appropriate according to traditional equity restraints.189 Civil
rights remains a quest for justice undertaken by judges sitting
in equity and exercising broad discretion in the review of
claimants’ lawsuits.190 However, the 1970s saw a shift in
perspective from eradicating Jim Crow to addressing
discrimination and similar, discrete, individual-focused
186. See Reinert, supra note 39, at 936.
187. See GRAHAM, supra note 58, at 371 (arguing that Brown II was a
conservative decision because it only required a “prompt and reasonable start
toward full compliance,” at a “deliberate speed”).
188. See Rudovsky, supra note 180, at 1235.
189. See id. at 1212.
190. See id. at 1235–38.
1928 78 WASH. & LEE L. REV. 1889 (2022)
claims.191 Without the goal of eradicating Jim Crow root and
branch, broad remedies like the structural injunction
increasingly appeared unjustified, even unjust, as third-party
interests and other externalities were recognized as being
implicated by judicial intervention.192 But individual suits for
damages raised other concerns.193 This shift in perspective
inaugurated a retrenchment period during which concerns
about judicial activism extended beyond equity powers to courts’
role in individual damages actions.194 Civil rights equity results
from distinguishing between good and bad cases during this
period, a distinction informed by traditional equity restraints
applied to law and equity alike.
A. From Retrenchment to Civil Rights Equity: A Definition of
Civil Rights Equity
Civil rights law has been retreating for over forty years, the
target of multiple forces combining to restrict the substantive,
procedural, and remedial scope of civil rights actions.195
[T]he Supreme Court (and in recent years, the Congress) has
restricted civil rights remedies though a series of complex
and controversial measures, including expanded immunities
from suit, narrower standards for standing and for private
enforcement of civil rights legislation, exceptions to the
exclusionary rule, limitations on remedies in criminal cases
and federal habeas corpus, and direct federal court
As one commentator put it, “[A]s opponents of the rights
revolution mobilized, they . . . focused their attention on these
very same institutional components” that had driven the rights
revolution, “a vastly broadened and empowered institutional
191. Phillip Bobbit sees this shift as fundamental to the “Age of Consent”
he identifies. Phillip Bobbit, The Age of Consent, in 2 GRANT GILMORE, THE
AGES OF AMERICAN LAW 100, 125–26 (2014).
192. See Susan P. Sturm, The Promise of Participation, 78 IOWA L. REV.
981, 993 (1993).
193. See, e.g., PETER SCHUCK, SUING GOVERNMENT 15 (1983).
194. See Rudovsky, supra note 180.
195. See id. at 1210–11.
196. Id. at 1200.
CIVIL RIGHTS EQUITY 1929
judiciary.”197 Retrenchment was rooted in an attack on “judicial
activism” and broader efforts to turn the judiciary in a
conservative direction.198 Substantively, this retreat is rooted in
a cycle of revival and limitation on approaches to civil rights
statutes and constitutional provisions.199 More broadly,
retrenchment has been associated with concerns about judicial
activism disrupting the federal balance, concerns about a “flood”
of litigation burdening courts, and hostility to both civil rights
plaintiffs and litigants more generally as benefiting from a
litigation system that is viewed as unjust.200 Retrenchment is a
process rooted in objections to Brown and its progeny, that
gained strength in the 1970s, and that has arguably become a
defining feature of the federal judiciary’s approach to civil rights
law since at least 2000. Civil rights equity is what courts’
approach to civil rights looks like in the aftermath of a wide
range of restrictions on civil rights actions imposed in the last
forty years.201 Civil rights equity describes the nature of civil
rights litigation as a consequence of this retrenchment period.
Civil rights equity is a narrow, goal-focused jurisprudence
projecting the aims of equity as justice but limited by a revival
of traditional equity-based restrictions in the form of
constitutional doctrine, procedural prerequisites, and
substantive proof requirements. The ability of traditional equity
to do justice—to override the complex, detailed, and universal
elements of law—was a tremendous power that was limited to
those circumstances where law was deemed inadequate. Equity
buttressed law and underscored its legitimacy, even as equity
197. SARAH STASZAK, NO DAY IN COURT: ACCESS TO JUSTICE AND THE
POLITICS OF JUDICIAL RETRENCHMENT 5–6 (2015).
198. See, e.g., STEVEN M. TELES, THE RISE OF THE CONSERVATIVE LEGAL
MOVEMENT: THE BATTLE OF CONTROL OF THE LAW 56–57, 88–89 (2008).
199. See John Valery White, Vindicating Rights in a Federal System:
Rediscovering 42 U.S.C. § 1985(3)’s Equality Right, 69 TEMP. L. REV. 145,
148– 51 (1996) (characterizing the jurisprudence of Reconstruction Era
legislation as competing between a “revival” and a “limiting period”).
200. See Lynda G. Dodd, Introduction to THE RIGHTS REVOLUTION
REVISITED: INSTITUTIONAL PERSPECTIVES ON THE PRIVATE ENFORCEMENT OF
CIVIL RIGHTS IN THE UNITED STATES 3, 1821 (Lynda Dodd ed., 2018).
201. Civil rights equity reflects an additional irony in that it is arguably
the equitable character of the FRCP that both facilitated the civil rights legal
revolution while also underlying the criticisms of federal litigation as too
proliferate. See Subrin, supra note 46, at 986–87.
1930 78 WASH. & LEE L. REV. 1889 (2022)
overruled law in the exception. Imitating traditional equity, civil
rights equity reinforces the constitutional structure that civil
rights threatened to upend and formalizes the primacy of
private (state) law that federal civil rights threatened to broadly
override. Between civil rights as a living, expansive legal
jurisprudence and civil rights as a basis for exceptional
intervention in the interest of justice, civil rights equity imposes
the latter. Like traditional equity, civil rights equity is dynamic
and ever evolving but ultimately narrow, as it limits civil rights
to extraordinary circumstances.202
Civil rights equity originates in resurgent understandings
of the appropriate use of equity jurisprudence in civil rights
cases. Accordingly, judicial intervention ought to be limited to
circumstances in which the “law” is inadequate, on behalf of
individuals who are harmed, and in the interest of justice
understood from the community’s perspective. Though one
might object to the lack of individual focus in the Court’s
intervention in Brown and post-Brown school desegregation
cases,203 it is easy to see that the then-evolving idea that
segregation was unjust demanded extraordinary intervention
because of the complete lack of effective legal remedies.204 As the
Brown moment was lost, the sense that equitable intervention
was necessary or appropriate was undermined. In the absence
of de jure segregation, the “inadequacy of the law” assumption
encouraging broad judicial intervention was weakened.
Extraordinary intervention seemed less compelling, as did the
assumption that such interventions were doing justice,
particularly in complex multidimensional cases affecting
Traditional equity bequeaths to civil rights jurisprudence a
legacy of tools aimed at limiting access to the tremendous power
of equity. Those tools, mimicked in constitutional doctrine, in
procedural decisions, or used as federal common law, treat civil
202. See White, supra note 199, at 151 (“This period of upheaval in
American law has produced a civil rights jurisprudence characterized by broad
but significantly limited rights of action.”).
203. This is the objection of Gary McDowell, though one might suggest that
McDowell also diminishes the harm of Jim Crow and the challenge for courts
forced to confront it. See MCDOWELL, supra note 58, at 97.
204. See FISS, supra note 32, at 8.
205. See Chayes, supra note 182, at 1284.
CIVIL RIGHTS EQUITY 1931
rights cases like traditional equity while facilitating application
of those limitations by demanding that cases be narrow,
episodic, and individually focused.206 Roughly, this is the
construction of civil rights, which retrenchment courts
substituted for the mission of eradicating Jim Crow.
Civil rights equity is a product of the shift from efforts to
excise Jim Crow from American life and economy to the pursuit
of justice in individual civil rights cases, resulting in a
deemphasis on structural change (integration) and repudiation
of broad policy solutions (busing, affirmative action). But by
focusing on individual claims, courts risked being drawn into
ruling on the details of day-to-day operations of institutions,
being dragged into relatively small disputes, and being
compelled to review the adequacy of processes and procedures,
often governing small stakes controversies. Civil rights equity
reflects solutions to these problems that echo restraints on
traditional equity jurisdiction. For example, Paul v. Davis207
locates some disputes as state law disputes;208 the reasonable
officer standard in qualified immunity cases makes intervention
turn on significant departures from expected behavior;209 and
courts’ reluctance to pursue the implications of their procedural
and substantive due process jurisprudence insulates the
judiciary from second guessing on-the-ground judgment calls by
the state and its officers.210 “Justice” has a particular shape in
these cases, requiring substantial departures from widely
accepted practice—outrages—to support judicial intervention.
Underlying it all is a fundamentally fact-intensive focus that
empowers jurists to weigh the justice of a case in a relatively
206. See Rudovsky, supra note 180, at 1235–36 (“[W]hile the Court has not
heeded calls to eliminate the structural injunction, it has imposed procedural
hurdles that substantially erode the availability of the equitable remedy.”).
207. 424 U.S. 693 (1976).
208. See id. at 711 (holding that “the interest of reputation asserted in this
case is neither ‘liberty’ nor ‘property’ guaranteed against state deprivation
without due process of law”).
209. See, e.g., Hope v. Peltzer, 536 U.S. 730, 746 (2002).
210. See, e.g., Graham v. Connor, 490 U.S. 386, 388 (1989) (applying “the
Fourth Amendment’s ‘objective reasonableness’ standard, rather than under a
substantive due process standard” to a use of force case); County of
Sacramento v. Lewis, 523 U.S. 833, 836 (1998) (stating that a Fourteenth
Amendment substantive due process claim for deprivation of life required a
showing of deliberate or reckless indifference).
1932 78 WASH. & LEE L. REV. 1889 (2022)
unbounded way. Projecting these developments forward would
produce civil rights equity.
B. Restricting Structural Injunctions with Equity
The revolutionary character of the Civil Rights Movement
and the consequent enthusiastic talk about rights obscured the
fact that civil rights were ambiguously defined.211 This provided
broad power to courts to do equity but offered little in the way
of articulating the character of the rights to be protected, much
less how an individual might claim a protected right as a
personal entitlement.212 This was doubtlessly intentional,
permitting flexibility to address the challenge of dismantling
Jim Crow while ensuring that courts could, per Brown II,
balance the many interests implicated. When courts’ broad
equitable powers were restricted, however, the lack of precise
definitions meant that courts continued to have tremendous
power to judge which cases demanded judicial intervention
without much direction or restraint. Civil rights equity emerged
from efforts to restrain this broad judicial power first in equity
then in damages cases.
One might maintain that the civil right movement’s legal
legacy was as much the creative use of equity as it was the
development of substantive rights. The rights of the period were
largely defined during the Reconstruction Era,213 only to be
rendered impotent though narrow interpretation.214 The
invocation of equity powers in Brown II and the subsequent use
of injunctions became characteristic of the judicial and
congressional response to the Civil Rights Movement before and
211. See, e.g., Henson, supra note 137, at 84–87 (arguing that
“discriminate” in Title VII is not well defined).
212. See MCDOWELL, supra note 58, at 97–99 (arguing that Brown
“broadened [the] concept of equity . . . [as a] major source of an assumed
judicial power to formulate—rather than merely negate—public policies,”
without giving clear guidance on what rights should be granted equitable
213. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 373–74 (1886) (holding
that discriminatory application of a neutral law, a law that is “fair on its face,”
violates the Constitution).
214. See Gressman, supra note 98, at 1338–43.
CIVIL RIGHTS EQUITY 1933
after the passage of the key civil rights acts of the 1960s.215
Writing in 1978, Professor Owen Fiss noted:
Brown gave the injunction a special prominence. School
desegregation became one of the prime litigative chores of
the courts in the period 1954–74, and in these cases the
typical remedy was the injunction. . . .
The impact of Brown on our remedial jurisprudence . . . was
not confined to school desegregation. It also extended to civil
rights cases in general, and beyond civil rights to litigation
involving electoral reapportionment, mental hospitals,
prisons, trade practices and the environment.216
Use of the injunction expanded throughout the Civil Rights
Movement.217 In addition to being a key tool for dismantling Jim
Crow in public schooling, enforcing those decrees saw the use of
anti-obstruction injunctions, initially against governors leading
“massive resistance” to desegregation, then eventually directed
against the faceless mob though ex parte orders effective against
all with notice of the order.218 As noted above, civil rights
statutes emphasized equitable remedies by creating or
heightening the Attorney General’s power to enjoin
discriminatory activity and by creating individual suits that
permitted equitable remedies (or in some cases permitted only
equitable remedies, such as in Title VII).219 In 1966, the new
215. See FISS, supra note 32, at 4.
217. See id. at 21–23.
218. See id. at 16–17.
219. Fiss argues that “[t]he injunction became the primary remedy in civil
rights litigation for a very special set of reasons.” Id. at 86. Those reasons were
“technocratic—civil rights litigation presented the courts with technical tasks
that could not be performed by remedies other than the injunction, or that
could not be performed as well.” Id. at 87. They included the fact that the
injunction was “well suited for the preventive needs of civil rights litigation”
as it was aimed largely at government officials who might not have been “as
sensitive to the prospect of damage judgments.” Id. But he also notes that the
superiority of the injunction related to the peculiar nature of the systematic
oppression of Black Americans:
[W]hen the demand was to compensate for the systematic and
thorough wrongs of slavery, the Jim Crow era, or the more subtle,
and recent, forms of discrimination, cash payments seemed
peculiarly inadequate. The inadequacy stemmed from
considerations much deeper than difficulties of
measurement . . . [but instead] from the group nature of the
1934 78 WASH. & LEE L. REV. 1889 (2022)
Rule 23(b)(2) was added to the FRCP to permit class actions for
similarly situated plaintiffs,220 allowing anti-discrimination
litigants to proceed as a class if characteristically equitable
remedies were sought.221
The judiciary’s aggressive use of equitable powers was
linked to the unique difficulties of dismantling Jim Crow—a
system of official and unofficial racial subordination (or better
yet, white supremacy) that operated throughout the country,
though concentrated and most extreme in the South.222 The
grinding oppression and racial terror in the South triggered two
great migrations of Black Americans out of the South.223
Between 1915 and 1970 “some six million black southerners left
the land of their forefathers,” changing the direction of
American and Black history.224 Not only were conditions in the
South oppressive, the segregation there was virtually complete
with few contexts where Black Americans were not completely
excluded from civic life; they were always relegated to a
Conditions were definitively better in the rest of the
country, but Black Americans were still excluded from prime
underlying claim and a belief that only in-kind benefits would effect
a change in the status of the group.
Id. at 87. From a normative perspective, Fiss believes the injunction was
superior because it gave agency to individual claimants and the courts. See id.
at 88. In the first decade of the civil rights period the control over initiating
actions and the independence of judges in issuing injunctions was crucial to
the process because the other branches were unlikely to act. See id. at 88–89.
In the second decade it supplemented the power of the Attorney General to
address civil rights issues. Id. at 89.
220. FED. R. CIV. P. 23(b)(2).
221. See FISS, supra note 32, at 15.
222. See FRIEDMAN, supra note 47, at 381–89 (explaining the history of
racial segregation and biases in the United States from 1850–1900); id. at 384
(“White supremacy in the deep South was total.”); id. at 523–37 (summarizing
constitutional rights, civil liberties, and race relations in the twentieth
century); id. at 524 (“In the South, where most African Americans lived, the
early part of the [twentieth] century was the high noon of white supremacy.
Blacks had no political power. They had no vote.”).
223. See ISABEL WILKERSON, THE WARMTH OF OTHER SUNS: THE EPIC STORY
OF AMERICA’S GREAT MIGRATION 9–11 (2010).
224. Id. at 9; see id. at 556.
225. See generally GUNNAR MYRDAL, AN AMERICAN DILEMMA (1944); LEON
F. LITWACK, TROUBLE IN MIND: BLACK SOUTHERNERS IN THE AGE OF JIM CROW
CIVIL RIGHTS EQUITY 1935
opportunities everywhere they moved.226 While the second great
migration, which ran from World War II to 1970, took place
during the period of greatest prosperity in American history,
and though Black Americans showed their willingness to move
great distances to take advantage of those opportunities, they
found themselves in California, Michigan, and New York
relegated to secondary status with limited access to the
industrial employment that characterized that period of
American prosperity.227 At the end of the extended post-war
boom, after perhaps a quarter of Black Americans pursued
access to prosperity by moving across the country,228 one-third
of Black Americans lived in poverty (twice the rate of poverty of
the nation as a whole).229 At the root of this disconnect was the
widespread insistence that “good” jobs and homes were not for
Black Americans.230 Redlining and restrictive covenants
226. FREIDMAN, supra note 47, at 529 (“The North had its own brand of
apartheid, more subtle than the southern form, but also quite real.”).
227. See William P. Jones, Building of America: The Making of the Black
Working Class, NATION (Oct. 21, 2019), https://perma.cc/7JHU-CT77
(reviewing JOE WILLIAM TROTTER, JR., WORKERS ON ARRIVAL: BLACK LABOR IN
THE MAKING OF AMERICA (2010)).
228. Wilkerson’s estimate of 6 million great migration migrants
constitutes 26.5 percent of the 22,580,289-Black population in 1970 when the
migration ended. Campbell Gibson & Kay Jung, Historical Census Statistics
on Population Totals by Race, 1790 to 1990, and by Hispanic Origin, 1970 to
1990, for Large Cities and Other Urban Places in the United States tbl. A-1
(U.S. Census Bureau, Working Paper No. 76, 2005), https://perma.cc/5CNR-
229. COMPLEX LITIGATION: CASES AND MATERIALS ON LITIGATING FOR SOCIAL
CHANGE 105 (Kevin R. Johnson et al., eds., 2009).
By 1959 when the census employed its current measure of poverty
rates 55.1 percent of black Americans lived in poverty, more than
double the 22.4 percent of the population in general. Black poverty
decreased steadily through the civil rights period, due largely to the
migration of black farmers to cities. . . . Consequently, by 1967 the
rate of poverty for black Americans was 39.7 percent and 33.5
percent in 1970. . . . [M]ajor reductions in black poverty rates
mostly ceased in 1970, with poverty rates for African Americans
holding steady for twenty-five years at about one third of the Black
Id. The overall poverty was 15.1 percent in 1970, half the rate for Black
Americans, a ratio that has been stubbornly consistent. UNITED STATES
CENSUS BUREAU, HISTORICAL POVERTY TABLES: PEOPLE AND FAMILIES
1959-2020 tbl. 3, https://perma.cc/9U2B-AJPL (PDF).
230. See Jones, supra note 227.
1936 78 WASH. & LEE L. REV. 1889 (2022)
deprived Black residents of access to housing, and thereby
schools, segregating access to social capital outside the South.231
Crowded into ghettos, Black residents in the North, Midwest,
and West became subject to increasingly hostile encounters with
police forces that included few Black officers.232
Though Brown had initially been skeptically received,233 the
decision and the extraordinary judicial powers associated with
it were eventually embraced in recognition that dismantling Jim
Crow was a difficult task.234 Brown transformed into a beacon of
justice.235 But not every aspect of life under Jim Crow was
viewed as entangled with Jim Crow.236 Nor were aspects of life
that could be linked to Jim Crow universally viewed as
problematic. Rapidly, distinctions emerged between official (de
jure) and informal (de facto) segregation, and prohibited and
permissible discrimination.237 Aspects of life (private clubs) were
cordoned off from the remedial effort.238 Importantly, nearly all
231. While dramatic and widespread in the case of Black Americans, the
system of segregation built around Jim Crow extended to other groups as well,
turning on the degree to which they were not accepted as white.
232. See Monica C. Bell, Police Reform and the Dismantling of Legal
Estrangement, 126 YALE L.J. 2054, 2069 (2017).
233. See Wechsler, supra note 111, at 3135; Bickel, supra note 111, at
234. See Katie R. Eyer, The New Jim Crow Is the Old Jim Crow, 128 YALE
L. J. 1002, 1033 (2019) (emphasizing that victories in court “chipped away” at
the ability to exclude African Americans, yet true equality was not a reality).
235. See Paul Finkelman, From Jim Crow to Civil Rights: The Supreme
Court and the Struggle for Racial Equality, 118 HARV. L. REV. 973, 978 (2005)
(noting that Brown served as a “moral force” by setting the stage for
dismantling formal racial segregation).
236. This is the power and political importance of William Julius Wilson’s
The Declining Significance of Race: Blacks and Changing American
Institutions, which argued that a substantial explanation of Black poverty was
the deindustrialization of American cities and a culture of poverty. In
distinguishing Black poverty from segregation, Wilson’s work was invoked to
support reining in extraordinary civil rights remedies and focusing instead on
individual acts of discrimination. See generally WILLIAM JULIUS WILSON, THE
DECLINING SIGNIFICANCE OF RACE (1st ed. 1978).
237. See Ulysses Jacks, De Facto Segregation and Brown—A
Constitutional Duty or Continued Despair?, 15 HOW. L.J. 319, 319 (1969)
(articulating the difference between de facto and de jure segregation).
238. See When Is a Private Club Not a ‘Private Club’?, ACLU PA. (Aug. 21,
2009), https://perma.cc/WSJ4-SDMC (noting that after the Civil Rights Act
was passed, many businesses argued that they were “private clubs” so they
could remain segregated).
CIVIL RIGHTS EQUITY 1937
vested rights (employment, segregated housing) and many
existing means of distributing social goods were insulated from
efforts to dismantle Jim Crow.239 These exclusions significantly
circumscribed efforts to address the then-present effects of Jim
Crow and extended those effects into the future.240
Two decades after Brown, civil rights jurisprudence was
characterized by tremendous powers vested in courts to address
Jim Crow but with significant limitations on what those powers
could be deployed to do.241 The exclusion of vested interests
(however linked to Jim Crow) informed views about the nature
of rights by implying that some conditions were not related to
Jim Crow and not rightfully subject to judicial action.242
Beginning early on, many saw inequality as independent of Jim
Crow, inequality existing in the urban North.243 In this
increasingly contested policy space, there was growing
impatience with the seemingly protracted length and broad
extent of the anti-Jim Crow effort, particularly as other issues
captivated the public’s attention and civil rights remedies
affected more people outside the South.244 In the school
239. For a discussion of exclusions from Title VII, see Henson, supra note
137, at 74–77.
240. See Palma Joy Strand, The Invisible Hands of Structural Racism in
Housing: Our Hands, Our Responsibility, 96 U. DET. MERCY L. REV. 155, 157
(2019) (explaining that, although discriminatory initiatives such as redlining
have now been illegal for fifty years, the pattern created by redlining is still
241. See Gerald N. Rosenberg, African-American Rights After Brown, 24 J.
SUP. CT. HIST. 201, 204 (1999) (noting that courts and judicial decisions have
legitimacy and can produce social reform but that political pressure did not
follow until a decade after Brown was decided).
242. See WILSON, supra note 236, at 63 (discussing public office elections,
where the probability of a white constituency electing a Black man was nearly
zero, as an example of such conditions).
243. This is the major import of the Moynihan Report on the Negro Family
along with scholarship explaining urban inequality on conditions and culture
in urban ghettos. See STEPHEN STERNBERG, TURNING BACK: THE RETREAT FROM
RACIAL JUSTICE IN AMERICAN THOUGHT AND POLICY 119 (1995) (citing LEE
RAINWATER & WILLIAM L. YANCEY, THE MOYNIHAN REPORT AND THE POLITICS OF
CONTROVERSY (1967)); ADOLPH REED, JR., STIRRINGS IN THE JUG 193 (1999)
(describing recent attempts to sanitize the “nefariously racist and sexist
Moynihan Report” as “truly sinister and pernicious”).
244. See Eyer, supra note 234, at 1018 (discussing the impact
desegregation advocacy had on the North).
1938 78 WASH. & LEE L. REV. 1889 (2022)
desegregation field, the Court narrowed the project
By very close margins, the Court ruled that de facto
segregation could not be remedied, that interdistrict
transfers of students were not permissible absent a showing
of past discriminatory practices, that there was no duty for a
state to provide a funding system that would ensure equality
in funding of local education, and that lower courts could not
continue to enforce desegregation programs that were not
believed to be narrowly tailored to meet the original
By 1978 “[t]he momentum [had] been lost,” with the
axiomatic status of Brown being questioned and a focus on
rolling back school desegregation efforts that were widespread
in Congress and the courts.246 However, Professor Fiss’s effort to
reconceptualize the injunction, and in doing so justify
“structural” and “reparative” injunctions247 captured the
dynamic, anti-formalism that still prevailed among jurists on
the bench and in the academy alike. The energy of the civil
rights period may have dissipated by the late 1970s, but the
legacy of equitable remedies persisted.248 Restraining court
power became an increasing focus, tied up with limiting which
aspects of Jim Crow were appropriate subjects for change.249
Many vested rights and practices having been excluded
from being addressed as products of Jim Crow, the focus of
judicial intervention was increasingly pointed at de jure
segregation and intentional discrimination.250 Resistance to
efforts to address ongoing effects of discrimination (e.g., busing)
merged with opposition to policies developed to address those
245. Rudovsky, supra note 180, at 1204–05.
246. FISS, supra note 32, at 5.
247. See id. at 9–10 (defining the two types of “retrospective” injunctions).
248. See George Rutherglen, Private Rights and Private Actions: The
Legacy of Civil Rights in the Enforcement of Title VII, 95 B.U. L. REV. 733, 738
(2015) (noting that Civil Rights advocates took the opportunity to sue for relief
such as equitable remedies in the Title VII context).
249. See John Valery White, Brown v. Board of Education and the Origins
of the Activist Insecurity in Civil Rights Law, 28 OHIO N.U. L. REV. 303, 312
250. See Michael L. Wells, Race-Conscious Student Assignment Plans After
Parents Involved: Bringing State Action Principles to Bear on the De Jure/De
Facto Distinction, 112 PENN ST. L. REV. 1023, 1032 (2008).
CIVIL RIGHTS EQUITY 1939
effects independently (especially affirmative action in
education, government contracting, and employment).251 Thus,
where courts’ use of equitable powers seemed to point in the
direction of redistributive policies, those policies were
increasingly attacked as illegitimate.252 Importantly, however,
the rollback of civil rights era achievements continued to reflect
an equity-rooted mission of doing justice, albeit redefined. As
courts focused less on Jim Crow and more on individual
claimants, they were pushed increasingly to take the interests
of third parties into account and, as such, courts’ intervention to
dismantle Jim Crow came to seem less unequivocally “just.”
Tellingly, debates focused on “innocent” third parties and unjust
beneficiaries of doctrines that focused more on groups than
Restricting equity powers was the vehicle for this
transformation of civil rights. Fiss emphasizes how relaxing
traditional equity rules that had subordinated injunctions to
other (presumably common law) remedies were crucial to the
success of Brown254 and how the revival of those doctrines has
been key to the rollback of civil rights law, which was beginning
as Fiss was writing.255 In 1974, in O’Shea v. Littleton,256 the
Court seemed “bent on reversing the practice of resorting to the
injunction as a primary remedy and [was] narrowly
circumscribing, if not cutting back on, the injunction even in the
civil rights domain.”257
251. See id. at 1030 (identifying Supreme Court precedent which held that
the scope of a district court’s power is broad when remedying past harms, and
thus this power encompasses race-conscious remedies such as busing
252. See William N. Eskridge, Jr., Some Effects of Identity-Based Social
Movements on Constitutional Law in the Twentieth Century, 100 MICH. L. REV.
2062, 2104 (2002) (reasoning that redistributive policies were open to
objections because the resources were being taken away from white people and
given to people of color).
253. This debate culminates in Martin v. Wilks, 490 U.S. 755 (1989).
254. See FISS, supra note 32, at 38–42.
255. See id. at 42–44 (referencing Younger v. Harris and O’Shea v. Littleton
as examples of civil rights cases limited by reinvigorated traditional equitable
rules that subordinate the injunction).
256. 414 U.S. 488 (1974).
257. FISS, supra note 32, at 43–44.
1940 78 WASH. & LEE L. REV. 1889 (2022)
The role of “traditional equity doctrine” in service of
constitutional structure has been critical to this rollback. Fiss
examines the Supreme Court’s decision in Douglas v. City of
Jeannette258 for its revival of the irreparable injury rule in
service of protecting what Younger v. Harris259 would later call
“Our Federalism.”260 In addition to viewing this theory of
federalism as “unsound,” Fiss faults “the use of the irreparable
injury doctrine to demarcate the bounds of the state and federal
courts.”261 Equity, or the revival thereof, has been a key
component of the Court’s efforts to cabin civil rights and their
effects on the Constitution:
The Court would have us believe that it is only making a
point about remedies, when it is in fact making a point about
the structure of the federal system . . . . The irreparable
injury formula invokes the traditions of equity, and thereby
enables the Court to forward its view of federalism without
having to justify fully its value preference . . . .262
Fiss emphasized that the irreparable injury rule is not only a
smokescreen, but also too narrow for the Court’s purposes.263 He
suggests that “comity” might be a better framework for
explaining the Court’s concern in Jeannette; however, it is in its
focus on remedies that the Court established the jurisdictional
hierarchy it believes the Constitution requires.264 The
invocation of equity as a tool in the rollback of civil rights not
only turned equity rules into tools for restricting remedies, but
also gave the Court an instrument for interpreting the
Constitution in light of “tradition.” It also gave the Court access
to a system that was especially focused on cabining
extraordinary judicial powers, just when reining in an “activist”
judiciary was becoming a more accepted rallying cry of civil
258. 319 U.S. 157 (1943).
259. 401 U.S. 37 (1971).
260. FISS, supra note 32, at 61–68.
261. Id. at 67.
263. Id. at 68.
265. See LINO GRAGLIA, DISASTER BY DECREE: THE SUPREME COURT
DECISIONS ON RACE AND THE SCHOOLSA SHARPLY CRITICAL VIEW OF THE
CIVIL RIGHTS EQUITY 1941
As Fiss anticipated, courts would work over the next two
decades to circumscribe use of the structural injunction, with
Congress ultimately prohibiting its use in the context of
prisons.266 The use of broad equitable remedies to effectuate
school desegregation saw a similar fate, beginning the same
year Fiss’s book was published.267 And, as Fiss noted, the Court
had already created substantial limitations on broad equitable
remedies to criminal justice systems said to be
discriminatory.268 The restrictions of Rizzo v. Goode269 and
O’Shea would be solidified in Los Angeles v. Lyons,270 while
attacks on disparities in criminal prosecutions would be
dismissed by the Court in death penalty cases.271 By the
mid-1990s, the civil rights injunction had been mostly
The rollback of civil rights was not limited to extraordinary
equitable remedies, however. The Court and Congress limited
use of injunctions more generally.273 “Whether imposed by
Congress or by the courts, these restrictions on injunctive relief
broadly reflect common law conceptions about the role of equity.
They depend on background principles about the scope and
effectiveness of alternative remedies and about the kinds of
cases that can properly be brought.”274 By 1978, courts had also
already placed significant limitations on the damages-based
RULINGS THAT LED TO FORCED BUSING 258–59 (1976) (discussing the Supreme
Court’s power to invalidate unconstitutional policies).
266. Prison Litigation Reform Act, 42 U.S.C. § 1997e (2004).
267. See Milliken v. Bradley, 418 U.S. 717, 738 (1974).
268. See FISS, supra note 32, at 40 (noting that there is a preference for the
criminal remedy and thus the court will not issue an injunction “unless the
plaintiff demonstrates the inadequacy of the criminal remedy”).
269. 423 U.S. 362 (1976).
270. 461 U.S. 95 (1983).
271. See McCleskey v. Kemp, 481 U.S. 279, 294 (1987) (arguing that the
petitioner’s data on racial disparities was inadequate and thus there was no
272. See Myriam Gilles, An Autopsy of the Structural Reform Injunction:
Oops . . . It’s Still Moving!, 58 U. MIA. L. REV. 143, 163 (2003) (arguing that
barriers to structural reform are really barriers to liberal structural reform).
273. See John C. Jeffries, Jr. & George A. Rutherglen, Structural Reform
Revisited, 95 CALIF. L. REV. 1387, 1395–1400 (2007) (explaining how federal
courts could “develop their own conceptions of equity jurisprudence” while
Congress could “enact restrictive statutes” against federal injunctions).
274. Id. at 1398.
1942 78 WASH. & LEE L. REV. 1889 (2022)
recovery in Section 1983 cases, reading into that statute
immunities for government officers275 and interpreting the
Eleventh Amendment to bar damages recovery from states.276
These limitations would be further developed in the ensuing
decades, significantly circumscribing damages actions under
Section 1983 with the consequence that “money damages are
currently not available for routine constitutional violations.”277
As the civil rights revolution was built on the creative use of
equity remedies, a rollback built around revival of traditional
equity tests and limitations is unsurprising.278 The surprise is
that the Court would give preference to equity over damages
actions when confronted with the damages actions created
under Section 1983 and in parallel to Brown’s injunction-based
regime.279 Civil rights equity explains this preference by
surfacing the Courts’ application of an equity-based approach to
rights claims for equity and damages claims alike.
275. See, e.g., Scheuer v. Rhodes, 416 U.S. 232, 247–48 (1974) (finding that
qualified immunity extends to officers of the executive branch, with variations
dependent upon the discretion and scope of responsibilities of the office).
276. See, e.g., Will v. Mich. Dept. of State Police, 491 U.S. 58, 66 (1989)
(concluding that suits seeking remedies against a state for deprivations of civil
liberties are barred by the Eleventh Amendment unless the state waives its
277. Jeffries & Rutherglen, supra note 273, at 1403.
278. See id. at 1410.
279. In 1978, Fiss had already recognized the preference of injunctions
over damages actions:
Indeed, in several recent cases, somewhat removed from civil
rights, classically defined in terms of protecting the racial minority,
doctrine has been created that seems to give a primacy to the
injunction. In Pierson v. Ray the court created an immunity for
judicial officers that might be applicable only to damage remedies;
in Edelman v. Jordan involving the invalidity of a state practice
denying welfare payments, the Court case an Eleventh Amendment
immunity around damages actions that is not applicable to
injunctive remedies; and when the court finally—after the long
post-Bell v. Hood interlude—held that constitutional prohibitions
of their own force gave rise to action so for damages if they were
violated, it also imposed on such damage actions restrictions—such
as a good faith defense—not applicable to injunctions.
FISS, supra note 32, at 90; see Reinert, supra note 39, at 93643. Jeffries and
Rutherglen resolve this puzzle by emphasizing the importance of adequate
remedies at law as the basis for injunctions. See Jeffries & Rutherglen, supra
note 277, at 1399.
CIVIL RIGHTS EQUITY 1943
The shift in focus in civil rights cases from eradicating Jim
Crow to responding to individual rights claims changed the
underlying vision of injustice that the courts are deployed to
eradicate without changing the predominantly equitable
framework for thinking about civil rights litigation.280
Individual damages actions perhaps require case-by-case rights
articulation, akin to that of the common law to frame injustice,
as traditional equity does not define injustice.281 As Stephen N.
Subrin has observed,
The defense of equity power in constitutional cases designed
to restructure public institutions tends to undervalue the
problem of how to translate rights . . . into daily realities for
the bulk of citizens. Aspects of common law procedure and
thought, not equity, may be required to help deliver or
vindicate rights, now that equity has opened a new rights
Such an approach demands that courts identify injustice for
individual claimants from the facts of particular disputes which
would form binding precedent in similar cases. That is, with the
effective repudiation of the anti-Jim Crow project, civil rights
become potentially unbounded and in need of precise definitions
of discrimination, abuse of government power, due process, and
similar concepts that had become the core of civil rights
litigation.283 Rather than developing such definitions (and a
common law of civil rights), courts defined justice in civil rights
cases as it was under traditional equity: a fact-intensive
examination in particular cases, accessible only where plaintiffs
overcome a raft of procedural limitations on the court’s ability
280. See Reinert, supra note 39, at 933 (noting that important and
strategic consequences flow from the Supreme Court’s approach to equitable
281. See Subrin, supra note 46at 974 (noting that federal legislation
required courts to resolve complex cases).
282. Id. at 913
283. See Judith Olans Brown et al., Treating Blacks as if They Were White:
Problems of Definition and Proof in Section 1982 Cases, 124 U. PA. L. REV. 1, 4
(1975) (explaining how civil rights legislation such as Section 1982 fail to
define precisely the content of the rights protected by it).
1944 78 WASH. & LEE L. REV. 1889 (2022)
C. Emergence of Civil Rights Equity
Civil rights equity emerges from judicial resistance to
structural injunctions. That resistance was characterized by the
revitalization of limits on equitable remedies in civil rights
cases. However, the imposition of equitable constraints would
not be limited to cases utilizing broad equitable remedies.
Courts limited causes of action for damages in civil rights cases
through use of traditional immunities and increasingly strict
proof requirements. On their face, the limits in these “law” cases
bear scant resemblance to equitable restrictions A closer look
reveals that the structure of equitable limitations, designed to
check the awesome powers of courts sitting in equity, frame and
inspire courts’ retrenchment efforts more generally, providing
substance to an otherwise generalized and vague notion of
Equitable power is awesome. Even as only a supplement to
law, unrestrained equity would be daunting. Samuel Bray offers
a compelling anatomy of how these tremendous powers made
equity courts vulnerable and how restraints on equity power
emerged.284 Bray contends that equitable remedies survived the
merger of law and equity because courts require a way to compel
action or inaction.285 The challenge of ensuring compliance with
equitable orders286 necessitates powerful tools like contempt287
wielded solely by the judge,288 which Bray calls “equitable
management devices.”289 Given the tremendous authority these
remedies and equitable management devices vest in courts,290
“equitable constraints” exist to limit courts’ power, mitigate the
possibility of abuse by parties, and determine plaintiffs’
reasonable expectations.291 The equitable constraints Bray
describes include those commonly associated with equity, like
284. See Bray, Systems of Equitable Remedies, supra note 90, at 582.
285. Id. at 553.
286. See id. at 563–64.
287. See id. at 564–68.
288. Id. at 571–72.
289. Id. at 563–72.
290. See id. at 572.
CIVIL RIGHTS EQUITY 1945
the requirement that there be no adequate remedy at law,292 or
equitable defenses, like laches and clean hands.293 Others, like
the requirement of equitable ripeness, resemble similar
constitutional doctrines.294 The focus of equitable defenses, like
the other restraints, is “equity’s refusal to allow the power of
these remedies to be used on behalf of a plaintiff who acts
Equitable constraints have a direct role in civil rights cases
as those cases often seek equitable remedies, sometimes along
with damages.296 Equitable constraints, like equitable standing,
are recast as constitutional doctrine, with the effect that courts
must ask if the plaintiff’s case is an appropriate one as a matter
of subject matter jurisdiction.297 But in damages actions, these
equitable constraints exert an influence beyond their direct
application because civil rights damages actions, like equity
actions, vest broad powers in the judge. The fact-intensive
nature of most civil rights cases gives potentially expansive
scope to rights claims that judges feel they need to constrain.
Diverse civil rights claims are fact intensive: discrimination
cases are framed around intentional use of a protected category
to cause an adverse result;298 due process cases ask whether the
plaintiff received the process due;299 and excessive force cases
292. Id. at 580–81. No adequate remedy at law is a constraint, but one that
Bray notes is not difficult to meet in that there are no definitive rules
governing this finding. Its importance lies in the determination that the
remedy is equitable, that it maintains the “‘conceptual exceptionalism’ of
equitable remedies.” Id.; see DOUG LAYCOCK, THE DEATH OF THE IRREPARABLE
INJURY RULE 22 (1991) (finding that a remedy is adequate only when it is as
complete, practical, and efficient as the equitable remedy—the legal remedy
almost never meets this standard).
293. See Bray, Systems of Equitable Remedies, supra note 90, at 581–82.
294. Id. at 578–79. Equitable ripeness demands significant factual
development in support of equitable remedies overlapping with “constitutional
doctrines of ripeness and standing, as well as abstention doctrines.” Id.
295. Id. at 581.
296. See, e.g., City of Los Angeles v. Lyons, 461 U.S. 95, 98 (1983).
297. See Reinert, supra note 39, at 943 (emphasizing that there are
barriers to obtaining injunctive relief, with the standing doctrine being the
298. See, e.g., Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985)
(maintaining that discrimination in Title VII claims is a question of fact).
299. See, e.g., Parratt v. Taylor, 451 U.S. 527, 53643 (1981) (comparing
the facts of that case to the facts of prior precedents).
1946 78 WASH. & LEE L. REV. 1889 (2022)
ask, for both qualified immunity and the constitutional right,
whether the officer exercised reasonable force under the
circumstances.300 These are “how high is high” questions,
turning on assessment of the facts under the circumstances by
the fact finder.
This open-ended, fact-intensive approach promises judicial
openness to a broad range of cases, but procedural, structural,
and proof limitations in civil rights damages suits mean that
“[m]oney damages are most likely to prove effective against
extreme or egregious constitutional violations and least likely to
work well against borderline misconduct that might reasonably
have been committed in good faith.”301 And where explanations
of behavior, like discrimination, are skeptically received, civil
rights litigation proves ineffective.302 Bray’s observations about
equity constraints apply to damages actions. They are
constrained in an effort to “guide the responsible exercise of
judicial power . . . by focusing a judge’s attention on certain
situations where equitable remedies and enforcement
mechanisms are most likely to be misused.”303
The emergence of equity constraint-like limits is perhaps
obscured by the recognition and expansion of damages actions
from Monroe through the Court’s rejection of the structural
injunction.304 The shift to individual suits for damages implied
a move from equity’s pursuit of justice in unusual situations to
law’s vindication of individual rights in everyday
circumstances.305 From the start the Court’s damages
jurisprudence emphasized process and procedure, while
300. See, e.g., County of Los Angeles v. Mendes, 137 S. Ct. 1539, 1546
(2017) (stating that the reasonableness analysis carefully considers the facts
and circumstances of each case).
301. Jeffries & Rutherglen, supra note 273, at 1405.
302. See Katie R. Eyer, That’s Not Discrimination: American Beliefs and
the Limits of Anti-Discrimination Law, 96 MINN. L. REV. 1275, 1300 (2012)
(finding that people are reluctant to make findings of discrimination in cases
such as disparate treatment in the employment context).
303. Bray, Systems of Equitable Remedies, supra note 90, at 584.
304. See Jeffries & Rutherglen, supra note 273, at 1401 (noting that money
damages played a small role in vindicating constitutional rights prior to
305. See id. at 1392 (arguing that until the staple of modern civil rights
litigationindividual rights protected by the Fourteenth
Amendment— assertions of constitutional rights were obscure).
CIVIL RIGHTS EQUITY 1947
eschewing the development of substantive elements for rights
claims. Even as courts recognized rightsrights to be free from
discrimination and excessive force, and rights to due process of
lawplaintiffs were tasked with proving the ultimate fact of
those rights violations without much guidance from substantive
It is now apparent that rights actions for damages,
characterized by this fact intensiveness and increasingly
predominant procedural nature of the litigation, extended the
fundamental shape of the Court’s prior equity approach to its
damages jurisprudence.307 Fact intensiveness duplicated the
unbounded structure of equity and gave courts broad authority
to provide (now damages) remedies. A case like McDonnell
Douglas,308 which structured Title VII’s nominally equitable
employment discrimination litigation but left the question of
discrimination unanswered, might have seemed to advance the
promise of rigorous rights enforcement. But what it did was
extend the possibility of continuing the Court’s relatively
unbounded power as the burden shifting of McDonnell Douglas
was read to be only a burden of production which fell away when
met, leaving plaintiffs to prove “discrimination vel non.”309 The
ultimate focus on discrimination vel non310 vests courts with the
task of determining what constitutes discrimination and
introduces the related prospect of litigants abusing the power of
the courts (through invasive discovery or abusive litigation). It
left open the need for equitable restraint even as the focus on
discrimination vel non was extended to discrimination suits for
damages under Sections 1981 and 1983.311
306. See Avidan Y. Cover, Reconstructing the Right Against Excessive
Force, 68 FLA. L. REV. 1773, 1777 (2016) (discussing the Supreme Court’s
curtailment of the right against excessive force, which has made it difficult for
victims to overcome defendants’ motions to dismiss and motions for summary
307. See Bray, The Supreme Court and the New Equity, supra note 31, at
1003 (stating that before the new equity cases, the Supreme Court was unsure
of the amount of weight to give to historical distinctions between legal and
308. 411 U.S. 792 (1973).
309. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506–10 (1993).
310. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714 (1983).
311. Comcast Corp. v. Nat’l Ass’n of Afr.-Am.-Owned Media, 140 S. Ct.
1009, 1019 (2020).
1948 78 WASH. & LEE L. REV. 1889 (2022)
An equity “style” is also projected by the characteristic
balancing of interests this fact intensiveness facilitates. “The
modern Supreme Court frequently requires the withholding of
substitutionary constitutional relief [including damages] under
doctrines . . . developed to protect the perceived public
interest.”312 Though one would be surprised to see a court
routinely apply equitable defenses like laches or unclean hands
in a civil rights damages case, civil rights doctrine is broadly
characterized by its balancing approach that sub silentio
imports the undue hardship defense into the dispute. And the
fact-intensive nature of most civil rights doctrines permits
courts (and then juries) to diminish assertions of rights
violations by those with unclean hands, even if that doctrine is
nowhere cited and the question is a “legal” one. Moreover, what
Abram Chayes said of juries—“one of the virtues of the jury was
thought to be its exercise of a roughhewn equity, deviating from
the dictates of law where justice or changing community mores
required”313—applies to judge and jury in the system of civil
rights that leaves so much to a fact-based judgment.
Courts facing difficult disputes have perhaps
unsurprisingly found refuge in the structure and tools of
equitable constraints. If courts are generally suspicious of civil
rights claims, if they simply worry that the cases might push the
court into conflict with other branches, or if courts just wish to
limit access to the judiciary, it should not be surprising that
these legacy tools for limiting judicial power, albeit in equity,
influence efforts to limit the courts’ power.314 Chayes said in
[T]he Burger Court may be seen to be embarked on some
such program for the restitution of the traditional forms of
adjudication. Its decision on standing, class actions, and
public interest attorney’s fees, among others, achieves a
certain coherence in this light . . . . One suspects that at
bottom its procedural stance betokens a lack of sympathy
312. Greabe, supra note 185, at 858; see id. at 881–96 (noting that the
Supreme Court has deemed itself to be free to advance the perceived public
313. Chayes, supra note 182, at 1287.
314. See Bray, Systems of Equitable Remedies, supra note 90, at 534.
CIVIL RIGHTS EQUITY 1949
with substantive rights and with the idea of District Courts
as a vehicle of social and economic reform.315
Equitable remedies (injunction, subrogation, etc.) are powerful
tools that put courts in direct conflict with defendants and
prompt potential noncompliance with judicial orders.
Simultaneously, civil rights cases involving contested
rights, like antidiscrimination, privacy, and freedom from
excessive force, put courts at odds with defendants who have
incentives to resist the court’s judgment. This is because the
accusation suggests moral reprehensibility in discrimination
cases, abuse of power in privacy cases, or a lack of
professionalism (with horrendous consequences) in police abuse
cases. A loss in such cases also deprives the defendant of full
authority over property or control over policymaking. Courts
may be able to force payment of damages, but their ability to
generate compliance with the underlying values is compromised
where defendants: deeply disagree with the values (e.g.,
antidiscrimination on the basis of sexual identity); object that
they were in violation of the values (whether an employment
decision was “based” on the protected category in discrimination
cases); believe these values conflict with moral or political
beliefs (anti-abortion legislation); or maintain that actions
underlying the cases were necessitated by the circumstances
(police abuse cases), putting the court’s legitimacy in question.
Cities might be “accountable” to Ben Crump’s clients by paying
a settlement while never confronting the values underlying the
civil rights litigation the settlement resolves.316
If the difficulty of ensuring compliance defines equitable
remedies,317 the difficulty of inducing compliance with
constitutional and statutory values defines civil rights cases for
damages, particularly when the underlying value questions
implicate the interests of networks of parties and nonparties in
315. Chayes, supra note 182, at 1304–05.
316. See Treisman, supra note 5 (explaining that although civil
settlements can compensate victims in police violence proceedings, they have
not been shown to make a positive change in the belief systems of police officers
and other city government officials).
317. See Bray, Systems of Equitable Remedies, supra note 90, at 563–64
(detailing that, although legal remedies rarely show any issues with
compliance, there is a higher degree of difficulty in forcing compliance with
1950 78 WASH. & LEE L. REV. 1889 (2022)
multidimensional ways akin to structural injunction cases. In
such contexts, courts struggle to be on the “right” side of civil
rights disputes. This complexity is often cast as the case being
“political,” and it is suggested that courts should avoid political
cases.318 But every case has political implications, so the charge
is too broad, and “political” is too narrow a characterization for
what defines these cases. Rather, it is their multidimensionality
that makes them complex and difficult.319 And just avoiding
them gives preference to the status quo ante, legitimizing the
actions of the defendant potentially at the cost of constitutional
values. Equitable constraints limit access to equitable
remedies320 and structural injunctions321 in multidimensional
cases. Civil rights equity emerged as a way of ameliorating the
problems presented by such cases, whatever the remedy
raised.322 By constructing a predominately procedural
jurisprudence with generally defined rights, civil rights
damages actions mirror traditional equity, with a broad focus on
justice by balancing interests, access to which is limited by the
procedural stricture of equity constraints.
In recent years courts have demanded that cases be more
conventionally and narrowly structured through a
characteristic focus on process and procedure in federal
318. See Lawrence Gene Sager, Fair Measure: The Legal Status of
Underenforced Constitutional Norms, 91 HARV. L. REV. 1212, 1224–26 (1978)
(examining the relationship between constitutional norms and the political
319. See Chayes, supra note 182, at 1284 (examining the shift in federal
litigation from disputes between private parties pertaining to “private rights”
to disputes of constitutional and statutory policies).
320. See, e.g., Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 156– 57
(2010) (outlining a four-factor test where a plaintiff seeking a permanent
injunctive relief must show that, among other factors, remedies available at
law are inadequate to compensate for an injury); eBay, Inc. v. MercExchange,
L.L.C., 547 U.S. 388, 392–93 (2006) (enforcing the Court’s decision rejecting
the replacement of traditional equitable considerations with a rule that
injunctions might automatically follow an injury).
321. Chayes describes six ways in which “the judiciary may have some
important institutional advantages for [managing structural reform
litigation].” Chayes, supra note 182, at 1307–09.
322. See Subrin, supra note 46, at 913 (explaining that using historic
equity powers has allowed judges to “breathe life into sacred constitutional
rights and to permit such rights to evolve and expand as society attempts to
become more humane”).
CIVIL RIGHTS EQUITY 1951
litigation generally and civil rights litigation in particular.323
The trend revives efforts to restrict the “equity” aspects of the
FRCP. These restrictions were rejected during the drafting of
the rules and are aimed at constraining litigation.324 The
rejected push to require pleadings to be more specific325 is reborn
in the Iqbal326/Twombly327 requirements.328 Rejected efforts to
limit discovery329 are accomplished through Iqbal/Twombly and
through the court’s emphasis on dismissing suits at the earliest
possible moment in qualified immunity civil rights suits against
officers.330 The rejected proposal to permit judges to issue an
“order formulating issues to be tried”331 has been accomplished
through aggressive use of summary judgment.332 Though civil
rights jurisprudence severely limits equitable claims while
simultaneously pointing litigants to equitable relief over
damages,333 the jurisprudence in damages actions grants judges
powerful tools to restrict access to the courts and narrow claims
while resisting defining substantive rights.
Perhaps ironically, these efforts to restrict the equity
aspects of the FRCP place judges in the position of equity judges,
magnifying their power to restrict judicial access in complex
cases. While the rejection of notice pleading in Iqbal/Twombly
and the operation of qualified immunity frees public employee
defendants from the inconvenience of litigation, the doctrines
also reflect the belief that public employees ought to be freed of
323. See, e.g., Bell Atl. Corp. v. Twombly, 550 U.S. 544, 569–70 (2007)
(discussing the pleading standards for claims in federal courts).
324. See Subrin, supra note 46, at 985–86.
325. See id. at 977–79 (discussing a proposal for “lawyer verification”).
326. 556 U.S. 662 (2009).
327. 550 U.S. 544 (2007).
328. See Iqbal, 556 U.S. at 678 (establishing that a complaint must contain
sufficient facts to state a claim to relief that is plausible on its face to survive
a motion to dismiss); Twombly, 550 U.S. at 547 (requiring a lower standard of
specificity for which a pleading only needs to have enough facts to state a claim
for relief that is plausible on its face).
329. See Subrin, supra note 46, at 977–78 (providing examples of efforts to
limit discovery that courts rejected).
330. See Harlow v. Fitzgerald, 457 U.S. 800, 801 (1982).
331. Subrin, supra note 46, at 978.
332. See id. at 982.
333. See Reinert, supra note 39, at 936–43 (discussing the doctrinal and
rhetorical preference of injunctions over damages in civil rights litigation).
1952 78 WASH. & LEE L. REV. 1889 (2022)
the tremendous oversight power of the courts absent a specific,
clear case of wrongdoing.334 These doctrines permit courts to
determine more easily whether they are facing a complex,
multidimensional civil rights dispute implicating multiple
interests, and therefore requiring the judge to limit access to a
substantive application of the characteristically fact intensive
rights, which would be applied through equity-like balancing in
any event.335 Instructively, Iqbal involved national security
policy where, behind the simple structure of claimant versus
government, there lay the interests of the untold masses
presumably protected though national security.336
The demand for specificity is an outgrowth of the fact
intensiveness of civil rights claims, which gives judges a central
role in managing civil rights disputes not unlike the role that
judges occupy in structural injunction cases.337 Just as the party
and issue complexity magnify the judge’s role in structural
reform cases, fact intensiveness in damages cases demands
judicial management to restrict potentially broad rights.338 As
in equitable suits, judges are the principle figures in civil rights
damages cases, weighing the public interests while deciding
numerous procedural questions focused on whether a claim is
appropriate for judicial resolution.339 Throughout, balancing
typifies the contemporary approach to damages actions,340
334. See Jeffrey J. Rachlinski, Why Heightened Pleading—Why Now?, 114
PENN ST. L. REV. 1247, 1252 (2010) (exploring issues that might arise if
plaintiffs are given great latitude in pursuing investigations of wrongdoing by
defendants, like high costs of litigation and the presence of nuisance suits).
335. See Twombly, 550 U.S. at 558 (discussing the Court’s ability to insist
on specificity in pleadings before permitting an enlarged factual controversy
336. See Ashcroft v. Iqbal, 556 U.S. 662, 670 (2009) (discussing the
implications of subjecting high-ranked government officials to the “burdens of
discovery” based on a complaint that is nonspecific in its nature).
337. See Greabe, supra note 185, at 882 (explaining that the Supreme
Court has insisted that courts “define rights at a very high level of specificity”
when determining whether those rights are “clearly established”).
338. See Anderson v. Creighton, 483 U.S. 635, 640 (1987) (establishing
that a right must be clearly established so that a reasonable person can
understand the “contours” of the right).
339. See Greabe, supra note 185, at 889 (detailing the various federalism
doctrines that Court has developed that can “deflect from federal court
jurisdiction justiciable claims for specific relief” for constitutional wrongs).
340. See id. at 881–88.
CIVIL RIGHTS EQUITY 1953
whether through individual immunity in suits against
individual officers341 or the emphasis on the plaintiff’s burdens
of poof in employment discrimination cases.342 Surviving the
gauntlet of procedural hurdles, plaintiffs must establish a
quantum of outrage sufficient to convince the judge (then the
factfinder) that justice demands judicial intervention, however
loosely the parameters of justice under the right concerned are
A damages jurisprudence with unbounded, fact-intensive
rights vests great power in courts to enforce civil rights but
duplicates many problems of equity jurisprudence and thus begs
for limits on invocation of judicial power. The high barriers that
developed to limit access to the courts—from Iqbal/Twombly’s
specificity requirements, to summary judgment practice, to
immunities—empower judges to manage disputes.343 This
equity-like structure is particularly valuable in
multidimensional cases where many interests are implicated
and where the legitimacy risks of judicial intervention are
greatest. Surviving the procedural gauntlet of judicial
management and constraint, plaintiffs’ rights are further
subject to the balancing of interests and de facto deservedness
judgment by fact finders loosely bound by fact intensive rights.
This is civil rights equity.
D. The Structure of Justice: Civil Rights Equity and a
Hierarchy of Rights
Civil rights equity generates different approaches to
different kinds of rights claims. Just as the requirements of
equity traditionally created a hierarchy of remedies with legal
remedies superior to equitable ones, civil rights equity defines a
hierarchy with some claims superior to others. This hierarchy
also delimits the cases to which civil rights equity’s
management and constraints are applied. At the top of this
hierarchy are cases involving the recognition of rights and
identities, followed by “civil liberties” claims—cases of
government abuse of an individual that are simple in structure
341. See id. at 881–84.
342. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510–11 (1993).
343. See A. Benjamin Spencer, The Restrictive Ethos in Civil Procedure, 78
GEO. WASH. L. REV. 353, 360–61 (2010).
1954 78 WASH. & LEE L. REV. 1889 (2022)
and effect—then “civil rights” claims. Positive rights, which are
generally not recognized and are unprotected, are at the bottom
of this hierarchy.344
Courts can decide recognition and civil liberties claims
without resorting to civil rights equity techniques. Civil rights
cases, defined as complex, multidimensional rights cases
implicating multiple interests, are subject to civil rights equity
management and constraints. The line between civil liberties
and civil rights cases is fluid, turning on the perceived
complexity of the dispute. Similarly, recognition cases typically
emerge from efforts to enforce civil rights.345 Consequently, the
distinctions between the types of claims in the hierarchy usually
emerge during litigation, diminishing the value of the hierarchy
for describing cases before they are litigated. But the categories
matter in terms of how courts are likely to approach cases.
Categorization is ad hoc and controlled by the judge.346 The
typically fact-intensive inquiries in rights cases not only put the
judge at the center of the litigation, but they also grant the judge
a perspective to determine whether the dispute is a
multidimensional one in need of management or a simple one
with a straight-forward question. Simpler cases, with a simple
party structure that reflects the parties truly in interest, and
with adverse positions, have a reduced need for the
management devices and constraints of civil rights equity. Such
cases can be resolved on narrow questions reminiscent of
common law claims: Is the plaintiff’s claim recognized by law?
Has the plaintiff’s right been violated by the defendant? Can the
plaintiff be made whole without implicating third parties? Thus,
courts can resolve recognition and civil liberties cases by
determining if the plaintiff has a protected right that has been
violated. As cases become more multidimensional, implicating
additional interests or where remedies would do so, the
344. Positive rights such as the right to health care are typically beyond
the scope of rights enforcement, though a court could recognize such a right in
the federal or a state constitution or legislation, transforming it into a civil
rights recognition case.
345. See generally Brown I, 347 U.S. 483 (1954) (enforcing the right to
equal protection of the law).
346. See Spencer, supra note 343, at 360–66 (detailing the judges’ power
to manage litigation).
CIVIL RIGHTS EQUITY 1955
management devices and constraints of equity become vital.347
Civil rights equity allows judges in complex, multidimensional
cases to manage the interests involved and, importantly, restrict
the courts’ intervention to social outrages.348
The different approaches to relatively simple versus
complex and multidimensional cases are exemplified by courts’
approach to “new property.”349 Even as courts were expanding
the Brown-based injunction—determining how to enforce the
rights created by civil rights statutes, and providing damages
actions for constitutional violations—courts started to contend
with the right-privilege distinction that had informed judicial
approaches to the distribution of government largess.350 Courts
were informed by Charles Reich’s influential The New Property,
which documented the scope and significance of governmental
largess as well as the consequences of treating a variety of
government gratuities as “privileges” to which individual
recipients had no enforceable claim.351 Reich defined his goal at
one point as explaining “the weakening of civil liberties in the
public interest state.”352 Among his many examples are cases
where the government denied or withdrew funding, contracts,
or licenses because of recipients’ political affiliation, speech, or
refusal to reveal past political associations.353 Reich diagnosed
the problem as “the public interest” being utilized to undercut
individual claims to government largess.354 This was possible
because public interest had been read too singularly,355
347. See Chayes, supra note 182, at 1297–98 (exploring changes to
litigation processes by courts resulting from extending impacts of judicial
348. See, e.g., Spencer, supra note 343, at 369–70 (offering a theory known
as “ordered dominance” in which restrictive doctrines, like heightened
pleading, can be utilized by courts to restrict cases).
349. Charles A. Reich, The New Property, 73 YALE L.J. 733, 733 (1964).
350. See id. at 740 (explaining that early legal protection of rights was
greater than protection of privileges, where a privilege had the potential of
being revoked by a judiciary without notice or hearing).
352. Id. at 774.
353. Id. at 762–69.
354. Id. at 774–77.
355. Id. at 774–75.
1956 78 WASH. & LEE L. REV. 1889 (2022)
one-sidedly,356 or trivially and vindictively,357 and in all cases
the effect of public interest denials on parties similarly situated
to the claimant were ignored.358 This parade of horribles fueled
development of constitutional law around speech and
association rights, as well as due process protections that
treated government largess as entitlements that recipients
could defend in court under certain circumstances.359
Constitutional law since 1964 has been mostly responsive
to the horribles underlying Reich’s case for new property. One
might call this the civil liberties revolution because the property
interests his article highlighted were most often compromised
through retaliation against free speech or association.360 The
success in this area has not been complete, however. The glaring
exception is welfare entitlements: courts’ early protection of
such rights through procedural due process was quickly
undercut.361 With similar results, courts have been deferential
to state supreme courts’ authority in administering admissions
to the Bar362 and have increasingly treated national security as
a basis for only limited restraints on discretion in the
government’s response to national security threats since 9/11.363
The influence of public interest on civil liberties continues,
with the degree to which courts recognize public interest behind
government decisions diminishing their willingness to see civil
liberties at stake. With the individual pitted against the state,
courts have been amenable to tough review of government
restrictions on liberty. However, the current Court has been
356. Id. at 775.
358. Id. at 776–77.
359. Id. at 774–83.
360. Id. at 763–64.
361. See Matthews v. Eldridge, 424 U.S. 319, 349 (1975) (limiting Goldberg
v. Kelly, 397 U.S. 254 (1970)).
362. See, e.g., Hoover v. Ronwin, 466 U.S. 558, 581–82 (1984) (holding that
admission is an act of the judiciary not subject to anti-trust action); Law Sch.
C.R. Rsch. Council, Inc. v. Wadmond, 401 U.S. 154, 155 (1971) (establishing
that a belief in the form of government and loyalty to the United States are
permissible requirements for admission to the New York Bar).
363. See Madeleine Carlisle, How 9/11 Radically Expanded the Power of
the U.S. Government, TIME (Sept. 11, 2021, 7:00 AM), https://perma.cc/M6FN-
EYVZ (examining the effects of 9/11 on the U.S. government regarding
CIVIL RIGHTS EQUITY 1957
particularly protective of speech as liberty and suspicious of
even well-reasoned restrictions on speech.364 While courts have
continued to defer to the Bar on admissions, they have brushed
aside the Bar’s worries about lawyer advertising.365 Where
government actions more readily reflect the collective interests
of the citizenry (national security, traditional consumer
protection underlying restrictions on admission to the Bar), the
court has given the government more leeway.366 This distinction
between structurally simple and complex cases define the
difference between civil liberties and civil rights cases, with the
former avoiding civil rights equity’s equity-like approach.
Of course, to assert rights against the government or
anyone else, the right must be recognized, and the identity
because of which the right is denied must be recognized by the
courts as a prohibited basis for denying rights.367 Recognition
cases are generally simple plaintiff-versus-defendant disputes,
even if recognition of some rights or identities implicates
complex interests for future application of those rights or
protection of those identitiescomplex interests that are
apparent when the recognition question arises.368 But
recognition disputes rarely appear fully formed. They generally
arise from assertions of rights in ordinary civil liberties or civil
rights disputes.369 Ultimately, the resolution of recognition cases
turns on the narrow question of whether the Constitution, a
364. See John Roberts and Free Speech: A Report on the Roberts Court’s
First Amendment Jurisprudence, CATO INSTITUTE (2020) [hereinafter Roberts
Court], https://perma.cc/R8KN-H5EW (discussing how Chief Justice Roberts
emphasizes protection of free speech).
365. See, e.g., Bates v. State Bar of Ariz., 433 U.S. 350, 361 (1977)
(enforcing that the State Bar acts as an agent of a court); cf. Sup. Ct. of N.H.
v. Piper, 470 U.S. 274, 288 (1985) (striking down the residency requirement to
sit for the bar).
366. For welfare this is perhaps the defining feature, leading to a
permissive regime because the fiscal interests of taxpayers are ascribed to the
government and balanced against the individual’s interests in process.
367. See Obergefell v. Hodges, 576 U.S. 644, 677 (2015) (“The dynamic of
our constitutional system is that individuals need not await legislative action
before asserting a fundamental right. The Nation’s courts are open to injured
individuals who come to . . . vindicate their own direct, personal stake in our
368. Think Brown I, Roe, and Obergefell as straightforward but weighty.
369. See, e.g., Obergefell, 576 U.S. at 651–81 (examining a claim for a legal
right for same-sex marriage).
1958 78 WASH. & LEE L. REV. 1889 (2022)
statute, or another instrument recognizes the right or identity.
Recognition is thus simple and antecedent to either civil
liberties or civil rights claims.
In contrast to the new property disputes and recognition
cases, civil rights disputes are defined by structural complexity.
In such cases, individuals are cast less against the government
as against one another. In employment discrimination disputes,
for example, the courts are asked to intervene on one or
another’s behalf where the government is not necessarily
present. Or, in structural injunction cases, courts are asked to
intervene to manage the reform of bureaucratic institutions that
themselves manage complex webs of individual interests.370 An
equity-like approach is viewed as more appropriate for
addressing such a dispute, whether the relief prayed for is
equitable or legal. Potentially sprawling private discrimination
cases like Wal-Mart Stores, Inc. v. Dukes371 are the prototype
here, with the court asked to referee a private dispute governed
by public law.372
Public agency discrimination demonstrates how a case can
float between the two characterizations. Such a dispute is like a
new property case (with individual property deprived by the
government on an impermissible basis). Yet the narrowly
conceived dispute can transform in instances where the court
perceives the interests of private citizens behind the
governmental action, prompting the court to resort to
equity-like language of balancing, particularly, but not
exclusively, where the relief requested is equitable. Thus, where
remedies for the aggrieved parties would affect the rights of
incumbents to jobs in public discrimination cases, the court
invokes equitable management devices and equitable
constraints to address the dispute. This is Martin v. Wilkes.373
But even where damages are the requested remedy, courts will
sometimes invoke those equitable doctrines to limit their role as
370. See Gilles, supra note 272, at 144 (“And for a time, the structural
reform injunction loomed large as a powerful tool for the transformation of
371. 564 U.S. 338 (2001).
372. See id. at 342 (analyzing the plaintiff’s claim for violation of a public
law against a private party rather than the government).
373. 490 U.S. 755 (1989).
CIVIL RIGHTS EQUITY 1959
“between” the interests of private parties (some of whose
interests are bound to those of the government).374
Police abuse cases lie at the intersection of civil liberties and
civil rights and highlight that party structure is not controlling
in courts’ characterization or treatment. Courts can, and in
police cases do, locate the public interest behind the government
or state actor’s behavior.375 From Monroe through to Board of
Commissioners of Bryan County v. Brown,376 the Court has
weighed the effects of § 1983 recovery on the public’s interest in
policing. Qualified immunity jurisprudence does so expressly.377
So conceived, the dispute is complex and triggers courts’
reluctance to intervene. Because they see the interests of the
citizenry behind the government’s action, creating a clash
between individuals more so than a conflict between individual
and state, courts recognize a need for the more equity-based
approach of civil rights equity. Invariably, in cases short of
egregious treatment by the government, the balancing of civil
rights equity is tilted in favor of the government acting in the
interests of the public over those of a victim or group that is often
perceived as undeserving (without clean hands).
Assessments of when civil rights equity tools ought to be
applied to rights claims create this hierarchy. Disputes over
recognition are structurally simple and avoid civil rights equity
management, even if recognition of an identity might trigger
complex civil rights claims down the line. Recognizing a person’s
ability to assert rights claims on the basis of their identity or
recognizing a person’s ability to claim a particular right is a
straightforward, if critical, question. For LGBTQ persons to
claim protection from discrimination because of their identity is
vital where seeking protection from discrimination on the basis
of their sex means a defendant’s admission of sexual orientation
374. See Diego M. Papayannis, Independence, Impartiality and Neutrality
in Legal Adjudication, 28 REVUS 33, 37 (2016) (explaining that, if the courts
were to think with a non-neutral mindset when it pertains to the parties, the
function of the law would be defeated).
375. See Donald L. Horowitz, The Courts as Guardians of the Public
Interest, 37 PUB. ADMIN. REV. 148, 149 (1977) (detailing that in modern society
courts play a more established role in protecting the public interest).
376. 520 U.S. 397 (1997).
377. See William Baude, Is Qualified Immunity Unlawful?, 106 CALIF. L.
REV. 45, 50 (2018) (examining how qualified immunity operates as a defense
for § 1983 claims).
1960 78 WASH. & LEE L. REV. 1889 (2022)
discrimination operates as a complete defense.378 Recognition is
essential, though not necessarily sufficient, to success in a rights
Civil liberties suits arising from government interference
with recognized interests on impermissible bases also avoid civil
rights equity management. But the category is unstable, with
disputes seemingly included in it always subject to
transformation into civil rights cases through the recognition of
interests in the background that render the case more complex
(and thus subject to civil rights equity). Prominent in the civil
liberties category is the Court’s aggressive protection of free
speech, association, and religious rights from interference by
government officers.379 Perhaps surprisingly, the right to be free
from government discrimination lies here, explaining the
Court’s aggressive response to narrowly defined de jure or overt
discriminatory practices380 and its related suspicion of
affirmative action policies.381 In contrast lies the Court’s
strikingly more passive “civil rights” approach to private
discrimination or in providing broad, forward looking
anti-discrimination remedies, both of which create a
multidimensional dispute structure by implicating the interests
Courts treat most rights cases as civil rights cases, utilizing
civil rights equity management in response to the complex
interests in play. Though civil rights are recognized as valuable
to individuals and particular identities are recognized as
protected from discrimination on the basis of protected
378. See Bostock v. Clayton County, 140 S. Ct. 1731, 1737–54 (2020).
379. See Roberts Court, supra note 364 (explaining that the Court has
taken a firm stance in protecting First Amendment rights).
380. See Theresa M. Beiner, Shift Happens: The U.S. Supreme Court’s
Shifting Antidiscrimination Rhetoric, 42 U. TOL. L. REV 37, 38 (2010)
(discussing the Court subjecting congressional acts that have discriminatory
effects to “strict fact-finding rules” for justification).
381. See Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551
U.S. 701, 748 (2007) (stating, in response to the defendant’s assertion that the
affirmative action policy was necessary to prevent discrimination, that “[t]he
way to stop discrimination on the basis of race is to stop discriminating on the
basis of race”).
382. See generally Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2001)
(examining class certification under the Federal Rules of Civil Procedure in a
private sex discrimination suit).
CIVIL RIGHTS EQUITY 1961
categories, civil rights equity diminishes the practical import of
such recognition. Though rights are defined in property-like
language, implying protection on the same basis as property (or
new property), the perceived, often implicit, multidimensional
structure leads courts to approach these cases as though they
were sitting in equity.383 Whoever the defendant and whatever
the remedy, such suits are subject to doctrines rooted in
equitable management devices and equitable constraints that
characterize civil rights equity.
The structuring of civil rights disputes is evident in the
Supreme Court’s recent treatment of Section 2 of the Voting
Rights Act where, though acknowledging the existence of a right
to vote in the Fifteenth Amendment and the Voting Rights Act
and recognizing the Act’s prohibition on intentional denial of a
right to vote,384 the Court constructed the statute to grant courts
the ability to judge voting restrictions for the degree to which
they are unreasonable.385
In Brnovich v. Democratic National Committee,386 the
Supreme Court imposed a reading on Section 2 of the Voting
Rights Act that limited the ability of plaintiffs to challenge
voting restrictions that had a disparate impact on voting, even
though the Act had been amended in 1982 specifically to reject
the Court’s limitation of Section 2 to cases of intentional
discrimination.387 The Court achieved the result in Brnovich by
reading the 1982 language in the Act to require a “totality of the
circumstances” analysis.388 Using that analysis the Court
weighed the “size of the burden imposed,” the degree to which
the voting rule or regulation at issue departs from standard
383. See Subrin, supra note 46, at 920–21 (outlining the historical basis for
384. See Brnovich v. Dem. Nat’l Comm., 141 S. Ct. 2321, 2350 (2021)
(holding that Arizona’s House Bill and out-of-precinct policy did not violate § 2
of the Voting Rights Act of 1965). Gorsuch and Thomas, concurring, would read
the Voting Rights Act not to permit a private right of action. See id. at 2350
(Gorsuch, J., concurring).
385. See id. at 2346 (majority opinion) (upholding the voting regulation
“[i]n light of the modest burdens allegedly imposed, . . . the small size of its
disparate impact, and the State’s justifications”).
386. 141 S. Ct. 2321 (2021).
387. See City of Mobile v. Bolden, 446 U.S. 55 (1980), legislative abrogation
acknowledged in Thornburg v. Gingles, 478 U.S. 30 (1986).
388. Brnovich, 141 S. Ct. at 2338.
1962 78 WASH. & LEE L. REV. 1889 (2022)
practice, and the size of the resulting disparate impact against
opportunities in the whole system to mitigate the impact, and
balanced them against the State’s interest in the voter
Though the Court ostensibly assessed the disparate impact
of the voting rules, it rejected the prevailing disparate impact
analysis that surely motivated Congress when it amended the
Voting Rights Act to overturn City of Mobile v. Bolden390 and to
ensure that disparate impact was a means to prove a Section 2
violation.391 The Court’s characterization of the case as one of
first impression (analyzing facially neutral time, place, and
manner restrictions on voting)392 foreshadows its insistence that
the plain language of the statute requires the
totality-of-the-circumstances assessment,393 and thus permits
the Court to read the Act as requiring the kind of search for
outrages that characterizes civil rights equity. In contrast, the
dissent would have required the analysis to focus on the
disparate impact test that Congress insisted on reinserting into
Voting Rights Act litigation in the 1982 statutory
In creating the totality-of-the-circumstances approach, the
Court read the statute to permit itself (and subsequent lower
courts) to engage in a generally unbounded assessment of how
problematic (how outrageous) the State’s voting restrictions
are.395 It says of burdens imposed on voters by the two
restrictions in question: “these tasks are quintessential
examples of the usual burdens of voting. . . . Not only are these
unremarkable burdens, but the District Court’s uncontested
findings show that the State made extensive efforts to reduce
their impact on the number of valid votes ultimately cast.”396
389. Id. at 2338–40.
390. 446 U.S. 55 (1980).
391. See Brnovich, 141 S. Ct. at 2332.
392. See id. at 2325.
393. Id. at 2338.
394. See id. at 2362 (Kagan, J., dissenting) (“The language in Section 2 is
as broad as can be. It applies to any policy that ‘results in’ disparate voting
opportunities for minority citizens.”).
395. See id. (stating that the Court is enabling itself to make any
limitations to the Act that it would like).
396. Id. at 2344 (majority opinion) (emphasis added).
CIVIL RIGHTS EQUITY 1963
That is, there is no outrage here because the restrictions are
ordinary in the Court’s mind. The State’s efforts to reduce the
effects of the voting requirements on the overall population
render irrelevant the disparate impact the voting requirements
might impose on the minority populations the Act was enacted
to protect, and makes it immaterial that voting requirements
were passed either because of those effects or in spite of them.397
Importantly, the Court implied that there could be voting
restrictions that violate the Act; however, it is fair and likely
better to read the opinion as completely undermining the Act,398
at least, as the dissent argues, to the extent that “Section 2 was
meant to disrupt the status quo, not to preserve it—to eradicate
then-current discriminatory practices, not to set them in
Whether these arguments represent a convincing reading
of the Act and its legislative intent, the point is that the Court
has constructed a means of analyzing Voting Rights Act
challenges that vests broad discretion in courts to act, but only
where the State’s limitations on voting are extreme and
outrageous in the eyes of jurists. In exercising an equity-like
approach through the totality-of-the-circumstances analysis,
courts are charged with balancing the interests involved to
determine whether an injustice is occurring, subject of course to
the review of higher courts and their assessment of the equities
of the case.
The “rights” in the statute may be protected in cases where
discriminatory intent is shown (a civil liberties approach) or
through the more conditioned approach of civil rights equity.
Having reversed an intent finding in the Ninth Circuit Court of
Appeals,400 the Court’s totality-of-the-circumstances assessment
397. See id. at 2341 (concluding that the disparate impact model was not
useful on these facts).
398. See Guy-Uriel E. Charles & Luis E. Fuentes-Rohwer, The Court’s
Voting-Rights Decision Was Worse than People Think, ATLANTIC (July 8, 2021),
https://perma.cc/G7XG-DV7J (suggesting that the Court’s decision “is a
repudiation of the Act’s core aims”).
399. Brnovich v. Dem. Nat’l Comm., 141 S. Ct. 2121, 2363–64 (2021)
(Kagan, J., dissenting); see Linda Greenhouse, On Voting Rights, Justice Alito
Is Stuck in the 1980’s, N.Y. TIMES, July 17, 2021, at A17 (arguing that the
Court’s opinion undermined the purpose of the Act).
400. See Brnovich, 141 S. Ct. at 2348–50.
1964 78 WASH. & LEE L. REV. 1889 (2022)
becomes the only basis for recovery.401 Of course, had intent
been proven, the State would have lost.402 Similarly, had a state
officer blocked an individual or racial group from voting, the
Court might have viewed the State as violating the Constitution
or statute, though this would have already been prohibited by
Mobile.403 Treating the dispute as a “civil rights” controversy,
the Court analyzed the erstwhile neutral application of the
Arizona statute on the abilities of racial, ethnic, and language
groups to vote, not by assessing those effects directly, but by
judging the broad equities implicated by the case, thus making
room for the state interest to be balanced against the effects of
the voting restrictions.404 Last, the right to vote is constructed
so that it is not the positive right it appears to be in the statute.
States need not take any affirmative steps to ensure their
citizens can vote.405 Rather, states only need to refrain from
interfering with the vote for illegitimate reasons.
III. CIVIL RIGHTS EQUITY AS A POPULAR EQUITY
Civil rights are equity because, in the contemporary legal
system, it fulfills the role traditional equity occupied in the
past.406 It does so by operating in ways similar to equity. That
is, it draws on popular equity to define an appropriate role for
civil rights jurisprudence. Civil rights equity is a juridical style
applied to cases that threaten to upset the status quo both in
society and among judicial traditions. Rather than a reversion
to the “received tradition” that Chayes contrasted with the
structural injunction—with its emphasis on judges as neutrals
resolving disputes between individuals asserting common law
rights407—civil rights equity reveals courts mimicking the style
401. Id. at 2332.
402. See id. at 2325 (highlighting that discriminatory intent is a violation
of the Act but that Congress amended the Act to reach further).
403. See City of Mobile v. Bolden, 446 U.S. 55, 63 (1980) (suggesting that
this would have been permissible because it was not motivated by a
404. See Brnovich, 141 S. Ct. at 2330.
405. See id. at 2338.
406. In this way civil rights equity parallels ADR, one of the systems
nurtured, in part, to cabin its reach. See Main, New Equity, supra note 20, at
407. Chayes, supra note 182, at 1285–88.
CIVIL RIGHTS EQUITY 1965
of equity. The substance of that style is the supplementary,
subordinate, and instrumental character of equity transposed
onto civil rights jurisprudence through substantive, procedural,
and structural rules.408 In civil rights equity the judge is no
umpire; she is central to a characteristically conservative
Civil rights equity is a popular version of equity, less a
comprehensive jurisprudence than a framework for managing
complex rights disputes. It reflects use of the assumptions and
style of equity to manage civil rights disputes without
necessarily breaching the law-equity distinction by explicitly
applying equity rules to damages claims. Civil rights equity is
thus neither an application of traditional equity, nor an
unbounded, ends-driven imposition of justice on disputes.
Instead, it lies between—drawing on widely known, generalized
aspects of equity and applying them in the interest of justice.409
As a popular equity, the terms and requirements of equity are
invoked (directly or tacitly) to cabin courts’ use of power.
The nature of popular equity and how generalized notions
of equity are invoked in contemporary jurisprudence is apparent
in the Supreme Court’s “revival” of equity requirements for
injunctions in eBay, Inc. v. MercExchange L.L.C.410 There “the
Court sought to determine the remedies ‘typically available in
equity’ in the days of ‘the divided bench,’ before law and equity
merged” and structure equitable relief around past practice.411
Samuel Bray observed that the Court sought to identify
traditional standards though a quasi-historical inquiry, focusing
on contemporary and nineteenth-century treatises,
restatements (necessarily from recent years), and law review
articles from the 1970s.412 He sees the Court cobbling together a
408. See Howard L. Oleck, Historical Nature of Equity Jurisprudence, 20
FORDHAM L. REV. 23, 23 (1951).
409. See Alexandru Florin Magureanu, Equity, Justice and Law, 3 J.L. &
ADMIN. SCI. 223, 223 (2015) (discussing the cohesion of equity and justice into
a general principle of equity and justice).
410. 547 U.S. 388 (2006).
411. Bray, The Supreme Court and the New Equity, supra note 31, at 1015
(quoting U.S. Airways, Inc. v. McCutchen, 569 U.S. 88, 94 (2013); Cigna Corp.
v. Amara, 563 U.S. 421, 438 (2011); Sereboff v. Mid Atl. Med. Servs., Inc., 547
U.S. 356 (2006); Great-W. Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204,
1966 78 WASH. & LEE L. REV. 1889 (2022)
vison of equity “from when those rules were most systematically
expounded”413 while “sometimes work[ing] into its artificial
history more recent cases and scholarship”414 to create an
approach with a “measure of stability and the capacity for
change that are characteristic of a tradition.”415 Whatever its
value as history, the Court’s conclusions commanded support
from a variety of Justices, culminating in two unanimous
opinions in the line of jurisprudence following eBay.416 Its
approach works as jurisprudence.417
The Court’s artificial history is utilized in eBay to articulate
a “traditional” four part test for permanent injunctions on the
basis of “well established principles of equity” despite the
absence of such a test before.418 Key to the Court’s test is the
“entrenchment of doctrinal formulations that distinguish legal
and equitable remedies: the irreparable injury rule and the ‘no
adequate remedy at law’ requirement”419 that most scholars
thought had been superseded by the merger and by general
practice.420 eBay transforms a popular equity-based artificial
history into hard doctrine, requiring a moving party seeking a
permanent injunction to show
(1) that it has suffered an irreparable injury; (2) that
remedies available at law, such as monetary damages, are
inadequate to compensate for that injury; (3) that,
considering the balance of hardships between the plaintiff
and defendant, a remedy in equity is warranted; and (4) that
413. Id. at 1022.
415. Id. at 1023.
416. See id. at 1015–16 (“[T]he opinions for the Court have been written
by four different Justices. One was by Justice Scalia, for a narrow majority;
another was by Chief Justice Roberts for a unanimous Court; the third was by
Justice Breyer for a large majority; and the most recent was by Justice
417. See id. at 1020–23.
418. Id. at 1023–30.
419. Id. at 1029.
420. See id. at 1006 (stating that most remedies scholars concur that the
adequacy requirement is outdated and has no effect on judicial
CIVIL RIGHTS EQUITY 1967
the public interest would not be disserved by a permanent
This formulation bore some relationship to approaches in some
states but was in fact new.422 Though each part of the test has
roots in traditional equity, scholars had presumed the first two
to be one—and one that was largely dead.423 In any case, the test
has proved popular in lower courts and was made central to the
exercise of equitable powers as it was extended to apply
notwithstanding the statutory basis of the suit424 and was
extended to preliminary injunctions425 and to stays.426
In other words, the Court engaged in a popular equity
analysis to revive rules of equity that, while generally
referenced by courts, had been thought to have lost any
decisional authority. As Bray notes, those rules emphasize
aspects popularly associated with equity by jurists:
The Court’s repeated inquiries into the scope and content of
“equitable relief,” and its turn to an idealized history and
tradition as the authoritative source for those inquires,
represent an unexpected and striking revival of equity. It
was unexpected, given decades of scholarship skeptical of
421. eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).
422. Bray notes that Kansas’s and Tennessee’s state supreme courts
utilized similar formulas but that, “as Douglas Laycock put it, ‘There was no
such test before, but there is now.’” Bray, The Supreme Court and the New
Equity, supra note 31, at 1025 (quoting DOUGLAS LAYCOCK, MODERN AMERICAN
REMEDIES: CASES AND MATERIALS 427 (4th ed. 2010)).
423. See LAYCOCK, supra note 292, at 37 (“Injury is irreparable if plaintiff
cannot use damages to replace the specific thing he has lost.”).
424. See, e.g., Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 155– 58
(2010) (suit under National Environmental Policy Act). Bray summarizes:
“[T]he formulation of the injunction standard in eBay has had extensive reach.
As is common with decisions in remedies and procedure, it has transcended
the substantive context in which it arose. It has become the leading federal
authority on the requirement for a permanent injunction.” Bray, The Supreme
Court and the New Equity, supra note 31, at 1024 (citations omitted).
425. See Munaf v. Geren, 553 U.S. 674, 689–91 (2008). The Court has
emphasized that the requirements are not permissive and plaintiffs must
prove that irreparable injury is likely. See Nat. Res. Def. Council, Inc. v.
Winter, 555 U.S. 7, 22 (2008) (“Our frequently reiterated standard requires
plaintiffs seeking preliminary relief to demonstrate that irreparable injury is
likely in the absence of an injunction.”).
426. See Nken v. Holder, 556 U.S. 418, 428–32 (2009) (applying a similar
approach to that applied in Winter to stays).
1968 78 WASH. & LEE L. REV. 1889 (2022)
equity’s past. More importantly, these cases are striking
because of the doctrines they reinforce. The Court has
emphasized that equitable remedies are never given as of
right, may only be given when there is a showing of
irreparable injury, are exceptional, and are marked by
discretion—a discretion that is guided by traditional tests
but exercised case by case.427
This foray into popular equity by the Court makes sense because
it concerns equitable remedies. However, general notions of
equity are part of our juridical DNA. A parallel system to the
common law—adopted into most states’ legal regimes wholly
from the law of England like the common law—equity is an echo
resonating throughout American jurisprudence.428 General
notions of equity constitute a part of the background
understanding of “law” for American lawyers that, particularly
after the merger, is not limited to equity jurisprudence.429 This
is especially the case with federal rights that invoke the courts’
equitable remedial powers but are not so limited.430
The popular equity analysis that gives meaning to eBay’s
equity rules reflects the use of traditional equity as a
generalized source of rules of decision, a judicial style even.
Popular equity permits courts to invoke historical notions of
equity to declare how aspects of American jurisprudence ought
to operate, particularly, but not exclusively, when equitable
remedies are implicated. Equity has well-known characteristics
that structure its use. It is permissive, supplemental,
exceptional, and discretionary. Thus, invocations of popular
equity are not unbounded and drawing on it means drawing on
a particular and conservative structure.
Civil rights equity is the use of popular equity to mold and
structure courts’ approach to civil rights cases. In contrast to
427. Bray, The Supreme Court and the New Equity, supra note 31, at 1044.
428. See Michael T. Morley, The Federal Equity Power, 59 B.C. L. REV. 217,
230–32 (2018) (outlining the history, importance, and variety of equity in
American legal jurisdictions).
429. See Douglas Laycock, The Triumph of Equity, 56 L. & CONT. PROBS.
53, 53 (1993) [hereinafter Laycock, The Triumph of Equity] (“The distinctive
traits of equity now pervade the legal system. The war between law and equity
is over. Equity won.”).
430. See Morley, supra note 428, at 238 (“Uniform, federally established
equitable standards governed all aspects of injunctive relief in both federal
question and diversity cases.”).
CIVIL RIGHTS EQUITY 1969
eBay, its use is not limited to equitable remedies nor is it limited
by the revival of historically rooted rules to limit structural
injunctions. Civil rights equity restricts the courts’ powers in
particular cases—civil rights claims implicating multiple
interests. Courts manage such cases and delink right from
remedy by mimicking equitable constraints. Like equity cases,
civil rights cases are “managed,” with plaintiffs asked to
overcome a number of tests questioning whether they are
deserving of a remedy, beginning with justiciability, but
including special and demanding pleading rules, and subjecting
their demand to the weighing of their interests against the
interests of the defendant to determine deservedness in a
characteristically fact-intensive litigation. The result of this
approach is a civil rights regime that treats cases less as claims
of right than as requests for succor in extraordinary
circumstances. Well-worn notions of equity as intervening to
resolve an injustice where there is no adequate remedy at law
and for claimants with clean hands are represented in a civil
rights landscape where plaintiffs’ claims are subordinated to
private rights implicated by their claim, made fact-specific, and
where courts are given to intervention only where cases present
“outrages” to commonly held notions of justice. Civil rights
recovery becomes permissive, supplemental to the private law,
exceptional, and largely discretionary.
IV. CIVIL RIGHTS AS CIVIL RIGHTS EQUITY
What appears to be a complex, detailed legal regime giving
meaning to rights recognized under the Constitution or in
statutes has become a juridical backstop, focused on addressing
injustices and with relatively little day-to-day value to citizens
in courts.431 Civil rights jurisprudence is simultaneously
complex and vague; it is characteristically procedural and
fact-intensive. This nature situates judges to sit as in equity,
limit civil rights to extraordinary circumstances, and
subordinate civil rights to private law.
431. See, e.g., ELLEN BERREY ET AL., RIGHTS ON TRIAL: HOW WORKPLACE
DISCRIMINATION LAW PERPETUATES INEQUALITY 5 (2017) (describing the
complexity of the legal framework and the challenges faced by plaintiffs in
1970 78 WASH. & LEE L. REV. 1889 (2022)
A. How Civil Rights Operates as Civil Rights Equity
The procedural and the fact-intensive nature of civil rights
actions make civil rights like traditional equity. Civil rights
litigation is characteristically procedural.432 Plaintiffs face
heavy pleading burdens,433 stringent justiciability
requirements434 that are applied independently to each remedy
sought,435 and limits on access to equitable remedies derived
from traditional equity.436 The generally open-ended
substantive causes of action mean many of these procedural
hurdles reemerge as the facts of a case are developed and proof
structures foreclose any shifting of burdens of proof to the
defendant.437 These procedural hurdles make civil rights claims
difficult to pursue and win.438
432. Suits in federal courts are subject to procedural hurdles due to federal
courts’ limited jurisdiction. U.S. CONST. art. III, §§ 1–2.
433. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly,
550 U.S. 544, 547 (2007). Though the Court rejected heightened pleading in
§ 1983 cases, see Crawford-El v. Britton, 523 U.S. 574 (1998), the Twombly and
Iqbal pleading requirements might amount to much the same. See, e.g., Wood
v. Moss, 572 U.S. 744, 75961 (2014) (holding that allegations of First
Amendment viewpoint discrimination did not meet the pleading standard).
434. See, e.g., Allen v. Wright, 468 U.S. 737, 738 (1984) (“[F]ederal courts
may exercise power only in the last resort and as a necessity, and only when
adjudication is consistent with a system of separated powers and the dispute
is one traditionally thought to be capable of resolution through the judicial
435. See City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983)
(differentiating between the availability of damages and an injunction); see
also HAROLD S. LEWIS, JR. & ELIZABETH J. NORMAN, CIVIL RIGHTS LAW AND
PRACTICE 473 (2d ed. 2004)
Lyons, then, makes it virtually impossible for the victim of police
abuse to secure injunctive relief against a local government entity
for practices of its police or sheriff’s department. Evidently the
Court places considerable faith in civil damage actions and, in
criminal cases, the exclusionary rule to deter police misconduct.
This faith, if not completely ill founded, is at least exaggerated.
436. See Bray, Systems of Equitable Remedies, supra note 90, at 545.
437. “Much of the development of federal employment discrimination law
in the courts and many of the Supreme Court’s employment discrimination
opinions have focused on the proof structures used to analyze individual
disparate treatment claims.” William R. Corbett, Young v. United Parcel
Service, Inc.: McDonnell Douglas to the Rescue, 92 WASH. U. L. REV. 1683, 1687
438. See, e.g., Laurence H. Tribe, Death by a Thousand Cuts:
Constitutional Wrongs Without Remedies After Willkie v. Robbins, 2006 CATO
CIVIL RIGHTS EQUITY 1971
Civil rights cases are also characteristically fact
intensive.439 Discrimination,440 due process,441 illegal seizure,442
SUP. CT. REV. 23 (2007) (discussing limitations to Bivens actions); Theodore
Eisenberg, Four Decades of Federal Civil Rights Litigation, 12 J. EMPIRICAL
LEGAL STUDS. 4, 57 (2015).
439. Consider the requirements in Title VII employment discrimination
cases. The Supreme Court’s key precedents in employment discrimination
cases consistently avoid defining discrimination. McDonnell Douglas Corp. v.
Green sought to structure the proof of discrimination from limited facts that
showed the plaintiff applied and was qualified for the job. See 411 U.S. 792,
802 (1973). That limited-facts approach is now abandoned. See St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 51011 (1993) (plaintiff’s burden to prove
discrimination persists even when pretext is shown); Int’l Bhd. of Teamsters
v. United States, 431 U.S. 324, 358 (1977) (emphasizing that the plaintiff must
show discrimination); Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 313
(1977) (statistics can be used to prove discrimination); Tex. Dept. of Cmty. Affs.
v. Burdine, 450 U.S. 248, 257 (1981) (presumptions go away when met);
Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985) (discrimination is
a question of fact); Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1993)
(mixed illegal and legal motives might support discrimination); McKennon v.
Nashville Banner Pub. Co., 513 U.S. 352, 362 (1995) (after-acquired evidence
that would support dismissal does not bar a plaintiff’s suit); Reeves v.
Sanderson Plumbing Prod., Inc., 530 U.S. 133, 136 (2000) (proof of pretext
could support a finding of discrimination); Desert Palace, Inc. v. Costa, 539
U.S. 90, 95 (2003) (circumstantial evidence alone can support a “motivating
factor” instruction to the jury in a mixed motives case); Ash v. Tyson Foods,
Inc., 546 U.S. 454, 458 (2006) (stating that pretext might be shown by evidence
of superior qualifications and refusing to define standard for pretext claims
based on superior qualifications). In none of these decisions does the Court
seek to describe what discrimination is, much less structure the plaintiff’s
proof around such a substantive definition. Instead, the Court has tinkered
with structures for proof and asked what to make of different kinds of evidence
proffered by the defendant, leaving the question of discrimination open-ended
and unchanged from its articulation in Teamsters. See 431 U.S. at 357–58.
440. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510 (1993) (stating
that presumptions in employment discrimination cases go away and plaintiff
must prove discrimination).
441. Procedural due process guarantees the process due under the
circumstances. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (discussing
the factors that guarantee procedural due process). Substantive due process
prohibits arbitrary government behavior of an extreme kind that is
context-specific. See County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)
(“[O]nly the most egregious official conduct can be said to be ‘arbitrary in the
constitutional sense’ . . . .” (quoting Collins v. City of Harker Heights, 503 U.S.
115, 129 (1992))).
442. Unreasonable use of force is judged by considering objective
reasonableness, a test that is fact specific, incapable of precise definition, and
viewed from the officer’s perspective. See Graham v. Connor, 490 U.S. 386,
396–97 (1989). The “objective reasonableness” that governs use of force cases
1972 78 WASH. & LEE L. REV. 1889 (2022)
and others are broadly and vaguely defined rights, with proof of
claims turning heavily on negligence-like notions of
reasonableness443 and cause.444 In suits against government
officers, the qualified immunity defense imports another layer
of fact intensive inquiry focused on the officer’s perception of
reasonableness under the circumstances.445 “The effect is to
resembles and duplicates qualified immunity analysis. See Brosseau v.
Haugen, 543 U.S. 194, 196 (2004); County of Los Angeles v. Mendez, 137 S. Ct.
1539, 1546 (2017) (rejecting the Ninth Circuit’s “provocation rule” in favor of
an objective reasonableness test); Kingsley v. Hendrickson, 576 U.S. 389, 397
(2015) (clarifying that the objective reasonableness test is the only test in
qualified immunity cases).
443. See, e.g., Scott v. Harris, 550 U.S. 372, 380–84 (2007) (reexamining
the record to determine the objective reasonableness of an officer’s actions).
444. See, e.g., Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397,
403 (1997) (reciting the Courts’ decisions on municipal liability and the
requirement of showing causation between the single decision of the policy
maker and the injury causing employee’s action).
445. The Court first read qualified immunity as an included part of Section
1983 in Scheuer v. Rhodes. 416 U.S. 232 (1970). Scheuer’s focus on subjective
intent was jettisoned in Harlow v. Fitzgerald, 457 U.S. 800 (1982), which
emphasized the objective reasonableness requirement in the interest of
defendants avoiding meddlesome suits that might make officers hesitant to do
their jobs and expressed concern that subjective intent did not permit suits to
be dismissed without trial and may have necessitated intrusive discovery. See
id. at 816–18. In Ashcroft v. al-Kidd, 563 U.S. 731 (2011), the Court modified
the objective component of the test, emphasizing that the right alleged to be
violated must be “sufficiently clear that every ‘reasonable official would have
understood that what he was doing violates that right.’” Id. at 741. Though the
Court did not require a case on point, it said that “existing precedent must
have placed the statutory or constitutional question beyond debate.” Id.
In cases involving police use of force, the application of these rules has
been increasingly deferential to officer decisions. In Anderson v. Creighton, 483
U.S. 635 (1987), the Supreme Court reversed denial of immunity, emphasizing
that immunity would attach if “a reasonable officer could have believed that
the search” was constitutional. Id. at 668 n.23. Similarly, in Brosseau v.
Haugen, 543 U.S. 194 (2004), the Court found that qualified immunity was
available for an officer who shot a fleeing suspect that he had been chasing on
foot when the suspect got in a car and started to back out despite being ordered
to stop. Id. at 201. Brosseau’s per curiam opinion pointed to the dearth of cases
involving “whether to shoot a disturbed felon, set on avoiding capture through
vehicular flight, when persons in the immediate area are at risk from that
flight.” Id. at 200. The Court has emphasized that a case on point was not
required to support clearly established law. See Hope v. Pelzer, 536 U.S. 730,
744–45 (2002). However, the Court focused on the absence of a case on point
in Brosseau, 543 U.S. at 199; Lane v. Franks, 573 U.S. 228, 245 (2014);
Plumhoff v. Rickard, 572 U.S. 765, 768 (2014); and Wood v. Moss, 572 U.S.
744, 759 (2014). In Plumhoff v. Rickard, a unanimous Court emphasized the
CIVIL RIGHTS EQUITY 1973
establish a liability rule of negligence with respect to
illegality . . . [shielding] a vast range of garden-variety
unconstitutionality from vindication though money
damages.”446 Yet, the requirement that the plaintiff bear the
ultimate burden of proving discrimination or illegal use of force
is said to be justified by the fact that constitutional and
statutory rights cases require proof of intentional rights
violations.447 The effect is that cases turn heavily on the facts
and that outcomes have limited precedential value with each
case tried anew on its unique facts.
The fact-intensive nature of civil rights claims and the
multiple procedural hurdles confronting plaintiffs permit judges
to sit as though in equity, no matter the relief sought.448 Judges
are required to determine whether the plaintiff has stated
sufficient cause to proceed as soon as suits are filed.449 If an
officer is the defendant, the judge must reexamine the facts to
determine whether a reasonable officer would know a clearly
established right might have been violated under the specific
“severe threat to public safety” in supporting qualified immunity for the
officer: “It stands to reason that, if police officers are justified in firing at a
suspect in order to end a serious threat to public safety, the officer need not
stop shooting until the threat has ended.” Id. at 777. The Court has taken a
similar approach in cases with much less evidence of exigency. See Kisela v.
Hughes, 138 S. Ct. 1148, 1153 (2018). It is evident that the Court’s main
concern is to analyze the situation from the perspective of the officer claiming
immunity to determine whether the law was clear and the actions represent a
knowing violation of that law. The focus on the threat and the exigency both
justifying the behavior under the Fourth Amendment and supporting qualified
immunity in Plumhoff is made more significant by the Court’s consistent
emphasis that qualified immunity determinations be made early in the
proceedings and that discovery should usually not be allowed. See Sigert v.
Gilley, 500 U.S. 226, 231 (1991).
446. Jeffries & Rutherglen, supra note 273, at 1402.
447. Despite the intent language, civil rights cases are made into a kind of
negligence with “fault” as the key focus. See John C. Jeffries, Jr., The
Right-Remedy Gap in Constitutional Law, 109 YALE L.J. 87, 89 (1999)
(“[C]urrent doctrine sharply curtails damages lability for constitutional
violations, chiefly by requiring proof of fault . . . by a government
officer . . . . [g]enerally . . . negligence . . . .”).
448. See Suzanne B. Goldberg, Constitutional Tipping Points: Civil Rights,
Social Change, and Fact-Based Adjudication, 106 COLUM. L. REV. 1955, 1994
(2006) (“Legal process legitimacy concerns, legal realist outcome-oriented
goals, and the peculiarities of the human mind are all, to varying degrees,
consistent with a preference for fact-base adjudication.”).
449. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
1974 78 WASH. & LEE L. REV. 1889 (2022)
circumstances of the case.450 Thereafter, discovery might
proceed only for the judge to determine, on loosely defined
substantive grounds, whether the facts developed in discovery
might still support recovery.451 Having cleared these hurdles, a
plaintiff can present his case to the fact finder who is, like the
judge before, largely unbounded in their assessment of whether
a right was violated.452 That assessment is, ultimately, a search
for a justification for judicial intervention: is this a case of an
outrage committed by the defendant, whether private or
public?453 Vesting judges with this degree of authority is
arguably why employment discrimination litigants face steep
odds of prevailing.454
450. See Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982).
451. See id. at 817 (“Judicial inquiry into subjective motivation therefore
may entail broad-ranging discovery and the deposing of numerous persons,
including an official’s professional colleagues.”).
452. See Halperin v. Kissinger, 606 F.2d 1192, 1214 (D.C. Cir. 1981)
(Gesell, J., concurring) (“It is not difficult for ingenious plaintiff’s counsel to
create a material issue of fact on some element of the immunity defense where
subtle questions of constitutional law and a decisionmaker’s mental processes
453. The effect and operation of qualified immunity as a search of
outrageous behavior is underscored by a comparison of Hope v. Pelzer, 536 U.S.
730 (2002), and Plumhoff v. Rickard, 572 U.S. 768 (2014). The two cases are
usually cited to note the Court’s requirement in Hope that a case on point is
not necessary to show clearly established law while Plumhoff finds qualified
immunity in part because there is no case on point. But the facts of the cases
highlight the consequences of looking at the case from the eyes of the officer
and, from that perspective, a generalized search for an outrage. Hope involved
officers supervising a prison work crew who implemented a practice of
chaining prisoners they thought malingering to a post in the hot sun. See 536
U.S. at 73335. Plumhoff involved a police chase that ended in a shooting. See
572 U.S. at 768. In Hope, the officers faced no exigency; instead, theirs was a
considered decision to enforce compliance with the work crew assignment. 536
U.S. at 73435. Looking through the officer’s eyes, the adoption of a
disciplinary policy by officers on the ground could nevertheless be considered
outrageous. The constitutional right could be determined to be clearly
established because the facts of the case were largely static and not subject to
much second-guessing. The event was largely binominal with the plaintiff
injured by the policy decision of the officers, and the Court’s role much like
that of an umpire. Deciding that the constitutional right was clearly
established removed the Court from the center of the dispute.
454. Summarizing a vast literature on this phenomenon, Margaret Lemos
Employment discrimination plaintiffs win about thirty percent of
the cases that go to trial, compared to a win rate between fifty to
CIVIL RIGHTS EQUITY 1975
Fact intensiveness also means that where private law
governs the underlying dispute, the presence of a superior
federal right is no guarantee of plaintiff success. As Robert
Glennon said of the Burger Court in 1978, “Evidence is
mounting that the most important theme . . . is the protection of
state interests and deference to state courts.”455 The unbounded
nature of the inquiry, combined with courts’ emphasis on
causation and on the plaintiff’s burden of proof, means that
plaintiffs must exclude all alternative explanations of the harm
in question. If private law supports the outcome, the plaintiff is
hard pressed to show that the rights violation asserted is the
cause of the harm.456 Similarly, a de facto deservedness analysis
underlies civil rights suits where jurisprudence has been
dominated by questions about how much weight to give to
plaintiff’s deservedness (e.g., the weight given an officer’s
perception of threatening or criminal behavior in excessive force
Civil rights jurisprudence has become equity of a sort. It is
rooted in exceptional circumstances that triggered the crafting
sixty percent for plaintiffs in tort and contract cases. They tend to
do even worse in cases that are decided prior to trial on a motion to
dismiss or for summary judgment, winning less than ten percent of
those cases, while tort and contract plaintiffs win slightly more
than thirty percent. Employment discrimination plaintiffs also fare
terribly on appeal—a phenomenon that scholars have attributed to
an erroneous belief among appellate judges that trial judges are too
plaintiff friendly. Moreover, while litigation rates shot up after
Congress made noneconomic and punitive damages available to
Title VII plaintiffs in 1991, the plaintiff win rate went down.
Margaret H. Lemos, Special Incentives to Sue, 95 MINN. L REV. 782, 831 (2011)
(footnotes omitted). While Lemos notes that settlement of Title VII cases went
up after 1991, she argues that was not necessarily a sign of improvement. Id.
at 831–32; see also Olatunde C.A. Johnson, Equality Law Pluralism, 117
COLUM. L. REV. 1973, 1982 (2017) [hereinafter Johnson, Equality Law
Pluralism] (“Yet there is also evidence of a countertrend in that the volume of
cases does not necessarily lead to better implementation of the statutory
455. Robert Jerome Glennon, Constitutional Liberty & Property: Federal
Common Law and Section 1983, 51 S. CAL. L. REV. 355, 355 (1978).
456. See Goldberg, supra note 448, at 1962 (“Facts alone do not supply the
judgment necessary to decide whether a legal burden on a social group is
reasonable. As David Hume famously put the point, an ‘ought’ cannot be
derived from an ‘is.’”).
457. See id. at 1973.
1976 78 WASH. & LEE L. REV. 1889 (2022)
of exceptional remedies drawn from equity; circumscribed by
application of traditional equity doctrine to restrict courts’
power as the focus of such suits shifted from eradicating Jim
Crow to addressing individual discrimination claims; and
transferred to damages actions by drawing on popular notions
of equity. It has come to reflect presumptions of equity as a
definition of the proper role of courts in society.
B. Is There Anything Wrong with Civil Rights Equity?
Civil rights equity is offered as a description of the state of
civil rights jurisprudence, but it is not clear that that state
would be different if subject to significant reform.458 After all,
Douglas Laycock has argued that the merger of law and equity
has so integrated the systems that it is distracting to speak of
them separately; thus civil rights equity might be little more
than a demonstration of the combined system produced by the
merger as it operates in civil rights jurisprudence.459 Still, civil
rights equity at least suggests that “rights” are less valuable
than we think, operating as they do without the character Chief
Justice Marshall ascribed to them in analogy to private
Nor might civil rights equity be necessarily problematic in
its operation, as it produces a civil rights jurisprudence that is
sensitive to community-held notions of justice.461 It is true that
the “community” vison of justice is largely articulated by district
court judges who may represent only a tiny sliver of the
community and who have, for years, been hostile to civil rights
claims and, it seems, claimants.462 Further, the fact-intensive
458. This is a point made by Jeffries and Rutherglen concerning the results
of limitations on damages actions. Jeffries & Rutherglen, supra note 273, at
459. See Laycock, The Triumph of Equity, supra note 429, at 82 (“Except
where references to equity have been codified, as in the constitutional
arguments about jury trial, law-equity arguments are always exclusively a
460. See supra note 26 and accompanying text.
461. See Roscoe Pound, Justice According to Law, 13 COLUM. L. REV. 696,
702 (1913) (“But justice according to magisterial good sense, unhampered by
rule, is more apt to accord with the moral sense of the community, when
administered by a strong man, than justice according to technical rule.”).
462. See Lemos, supra note 454, at 823–40.
CIVIL RIGHTS EQUITY 1977
nature of civil rights claims so structured gives lay juries the
ability to project their biases and prejudices onto civil rights
claims.463 But such a structure gives considerable legitimacy to
civil rights, even if, given the low success rate of such cases, the
public maintains a distorted view of the frequency of civil rights
However commonplace or community-rooted, it must be
said that what civil rights equity does is sap civil rights law of
its social change capacity. Rights claims that are
multidimensional cease to be the basis for changing behavior of
powerful actors and institutions.465 Nor does civil rights equity
offer succor to plaintiffs in cases that run against broadly held
expectations.466 For victims of widespread but
underacknowledged discrimination, police abuse, or sexual
violence, civil rights litigation so framed is not built to help. And
this suppression of civil rights law’s social change capacity
might override the benefit of restrictions on damages
liability— facilitating constitutional innovation467—by focusing
courts not on fault as such, but on outrageousness of
governmental conduct. Constitutional or statutory civil rights
can still be utilized to get courts to recognize groups or claims
heretofore unrecognized.468 In any case, civil rights actions
463. Or just their reluctance to explain outcomes as discriminatory. See
Eyer, supra note 302, at 1291.
464. See Lemos, supra note 454, at 789 (“Although American society
frequently is denounced as excessively litigious, the reality is that only a tiny
fraction of those who encounter potential justiciable problems consult a
lawyer, much less sue.”).
465. See Goldberg, supra note 448, at 2010 (“Because the current
fact-based model enables courts to sidestep stare decisis constraints, the case
law regarding a given social group often appears to have a random quality,
with no overarching theory to explain why burdens are sustained in some
areas but not in others.”).
466. See id. at 1974 (explaining that only when new perceptions of group
members reveal and reject normal expectations are courts likely to experience
pressure to incorporate those changed views).
467. See Jeffries, supra note 447, at 90–91 (arguing that a de facto fault
requirement in constitutional rights cases facilities constitutional innovation).
468. See Olatunde C.A. Johnson, Beyond the Private Attorney General:
Equality Directives in American Law, 87 N.Y.U. L. REV. 1339, 1350 (2012)
[hereinafter Johnson, Equality Directives in American Law] (“In considering
legislation to overturn Twombly and Iqbal, many members of Congress
explicitly invoked private enforcement as a key to vindicating statutory and
constitutional goals of equality.”).
1978 78 WASH. & LEE L. REV. 1889 (2022)
remain effective to combat gross abuses of government authority
through policy or aimed at an individual, either because the
interests in the litigation are narrow or because such an abuse
is outrageousthat is, either because it is not treated as civil
rights equity or because it satisfies the requirements of civil
This view of civil rights litigation may disappoint, but it is
not worthless, especially because it permits recognition of
identities and rights. The public learns what it should and
shouldn’t do from both the recognition and enforcement of rights
by courts. A decision that a government or private defendant has
violated a right helps demarcate the defining values of the
American political and legal landscape.470 Judicial decisions
make a unique and powerful contribution to the edifying
process, transforming some kinds of behavior from boorish to
“illegal” or from acceptable to discriminatory. This aspect of
rights is particularly prominent in the recognition of protected
identities471 and rights, but civil rights equity corrupts this
useful aspect of rights litigation by suppressing decisions
applying rights except where notions of outrage give emerging
or deep-seeded views of appropriate behavior great
significance.472 Courts cede their role in developing civic norms,
as perhaps they intend to do, but their role recognizing
identities and rights is not unimportant.
469. See id. at 1363 (“Under these statutes, a set of regulatory
requirements has emerged that places proactive and affirmative duties on
federally funded actors.”).
470. See CHARLES R. EPP, MAKING RIGHTS REAL: ACTIVISTS, BUREAUCRATS,
AND THE CREATION OF THE LEGALIST STATE 22 (2010) (stating that “legalized
accountability” might also change behavior).
471. Though a LGBTQ person might be able to assert a claim of
discrimination on the basis of sex, for example, that claim is beside the point
if the discrimination is based on the person’s LGBTQ identity. Recognition of
that identity both educates the public and operates in a law-like way,
establishing rights that have real value in courts and in the world. But that
value comes from the recognition itself. This is why decisions like Obergefell
are important and ought not be underestimated.
472. See Goldberg, supra note 448, at 1957 (“But where longstanding
judgments regarding a group have become destabilized and new norms have
yet to be settled, courts’ involvement in selecting between ‘old’ and ‘new’ norms
produces anxieties regarding the judicial role in responding to societal
CIVIL RIGHTS EQUITY 1979
This theory of civil rights litigation is almost surely
different, however, from what most have come to expect civil
rights to be. Indeed, civil rights equity mutes much of the
promise of rights by making rights enforcement contingent and
variable.473 It circumscribes the “social change” potential of
rights, buttressing rather than challenging the status quo ante.
Civil rights equity is a vehicle for normalizing civil rights, doing
so by draining them of their revolutionary implications.
A few caveats are in order. First, this Article does not cover
the extent of the influence of civil rights. Civil rights equity is a
theory of the treatment of civil rights in civil litigation. Civil
rights have been nurtured and have taken on much of their form
from administrative guidance.474 Similarly, what rights exist,
their form, and their function is largely a product of the polity’s,
rather than courts’, view of what is “right.”475 Second, as an
introduction, this Article does not detail the operation of the
many areas that constitute civil rights law.
Third, civil rights equity is not offered as an exclusive
theory of courts’ behavior. Civil rights equity neither requires
nor discounts, for instance, theories that judges are biased or
hostile to civil rights litigants or civil rights claims. Nor is civil
rights equity a detailed critique of procedural law, constitutional
law, or remedies jurisprudence. Instead, civil rights equity
maintains that the jurisprudential style that informs judges’
view of how civil rights cases ought to be handled is one rooted
in equity, is informed by equity constraints, and substantively
envisages a role for civil rights that resembles popular notions
of the role of traditional equity. This style is partly imposed by
473. See Johnson, Equality Directives in American Law, supra note 468, at
1354 (describing the success of civil rights enforcement as heavily dependent
on the judicial embrace of rules governing pleading, summary judgment,
standing, and fee recovery).
474. See id. at 1362–70 (describing a model for American equality
directives); Johnson, Equality Law Pluralism, supra note 454, at 193
(explaining regulatory tools that promote inclusion).
475. See Goldberg, supra note 448, at 1988 (stating that where legislative
and public policy shifts have eliminated legal burdens on certain groups,
courts that affirm the traditional negative norm disrespect and disrupt the
1980 78 WASH. & LEE L. REV. 1889 (2022)
precedent and partly by judicial attitude.476 Civil rights, it
seems, is assumed to be supplemental, subordinate, and for
deserving plaintiffs in unusual circumstances.
V. THE ALLURE OF CIVIL RIGHTS EQUITY
Civil rights equity has a number of significant effects. By
softening the operation of civil rights, civil rights equity
dampens the revolutionary legacy of the Civil Rights Movement
and moderates its larger impact on government, society, and the
economy. It is the operative basis for a conservative rights
regime that can aggressively respond to government abuse but
without opening the courts to everyday rights litigation.
Structurally, civil rights equity: preserves the primacy of
private law over civil rights; does the heavy lifting in keeping
courts out of complex political disputes as anticipated by
Brandeis’s famous concurrence in Ashwander v. Tennessee
Valley Authority;477 and permits a judicial restraint that
nonetheless keeps the judiciary central to rights enforcement.478
The power of civil rights equity as a theory might most strongly
derive from its resolution of a number of paradoxes about civil
rights that bedevil popular discussion of rights.
A. Dampening the Revolutionary Implications of Civil Rights
Civil rights equity responds to three different revolutionary
implications of civil rights by importing a flexibility that
significantly reduces the disruptive effect of rights on the
constitutional system. Rights-based legalism threatened to
make public rights dominant over private rights, perhaps
making anti-discrimination and due process in the Fourteenth
Amendment the principle legal doctrines in American law.
Similarly, the twentieth-century rights revolution promised to
realize the structural implications of the Fourteenth
Amendment, subordinating state law to a supreme rights
regime at the federal level. Last, such a regime would involve
476. See id. at 1964 (discussing the pervasive practice of fact-based
477. 297 U.S. 288 (1936).
478. This is the second, structural function of constitutional remedies
described by Fallon and Meltzer. Fallon & Meltzer, supra note 73, at 1787–91.
CIVIL RIGHTS EQUITY 1981
federal courts in everyday legal disputes: retail cases, if you will.
Civil rights equity dampens these revolutionary implications,
perhaps achieving the balance that legal process scholars
B. Structuring a Conservative Rights Regime
Civil rights equity provides a basis for a conservative rights
regime, clawing back the social change focus of rights in the
Civil Rights Era while preserving rights as a means to combat
government abuse. The contemporary conservative movement’s
focus on limited government and the increasingly libertarian
tenets of that conservatism have always been of two minds
about rights. Understanding that government abuse could be
corralled by rights, the broad conservative call to go back to a
pre-Brown world made sense only because Brown was cast as
improper. For such critics, Brown was not about rights but about
something elsesociology, psychology, social engineering,
defiling of the constitutional order. The substance of the civil
rights period aside, rights-based legalism was always a
potentially conservative approach to constitutionalism,
depending on how rights were constructed.
By structuring rights cases and treating the most
complicated as something akin to equity, civil rights equity
empowers courts to operate as a bulwark against government
abuse in civil liberties cases while limiting the role of courts in
more complicated disputes.480 In those complicated disputes,
civil rights equity permits courts to express what judges insist
are broad sentiments of the general public.481 With successful
civil rights cases turning on outrages, the community’s vision of
injustice is defended and courts remain generally respectful of
479. See Bickel, supra note 111, at 65.
480. See Goldberg, supra note 448, at 1999–2000 (“Because fact-based
reasoning places an extra barrier that must be overcome before a would-be
detractor can criticize a court’s legitimacy and capacity, courts are less
vulnerable to criticism of overstepping by hinging decisions on relatively
uncontested facts and avoiding overt selection among competing norms.”)
481. See Vilhelm Lundstedt, Relation Between Law and Equity, 25 TUL. L.
REV. 59, 61 (1950) (“They are only nominal judgments depending on the
valuing feeling or sentiment of the person who makes them.”).
1982 78 WASH. & LEE L. REV. 1889 (2022)
separation of powers and federalism,482 while ensuring that
everyday disputes can be dismissed.
C. Preserving Pre-Rights Era Understandings of the Legal
Civil rights equity has operated to buttress pre-civil rights
era understandings of the legal system. Civil rights equity
operates to prioritize private law over ostensibly supreme public
rights. It is a mechanism for achieving the restraint goals of
Ashwander, providing a rationale for such restraint as it does
so. More generally, it fulfills the post-civil rights period’s
aspiration of judicial restraint while cementing the federal
judiciary as the ultimate arbiter of constitutional and statutory
1. Prioritizing Private Rights over Civil Rights
As rights identified in the Constitution or created by federal
statute, civil rights trump state law by virtue of the Supremacy
Clause.484 In doing so, civil rights threaten to supplant private
law. This threat was somewhat mitigated by the state action
requirement that several civil rights statutes abandoned.485
And, in a pre-Erie world, one could imagine the private law
insulated from civil rights because federal courts could actively
manage the line between federal rights and the common law.486
After Erie, private law is understood to be state law and federal
482. Of course, such an alignment of civil rights with community
impressions can make rights illiberal if the community is so. See Robert C.
Post, Justice Brennan and Federalism, 7 CONST. COMMENT 227, 234 (1990)
(“Hence the only purpose which Brennan could perceive in American
federalism was the creation of a ‘federal structure’ conducive to ‘securing
483. See Goldberg, supra note 448, at 2003 (discussing how equity can
curtail the reach of stare decisis considerations).
484. See U.S. CONST. art. VI, cl. 2.
485. See Isaac Saidel-Goley, Things Invisible to See: State Action & Private
Property, 5 TEX. A&M L. REV. 439, 445–47 (2018).
486. See Caleb Nelson, A Critical Guide to Erie Railroad Co. v. Tompkins,
54 WM. & MARY L. REV. 921, 924 (2013) (describing the relationship between
state and federal courts before Erie).
CIVIL RIGHTS EQUITY 1983
civil rights claims, when they come into conflict with private
rights claims, supersede them.487
In cases involving equitable relief judges could manage
conflicts between federal rights and the common law,
particularly because traditional equity prioritized the common
law (private law) over equitable intervention, supplying a ready
hierarchy of rights. Civil rights equitable remedies inherited
this tradition, which was readily deployed as the Court shifted
its focus from Jim Crow to individual civil rights. But as
damages suits became more prominent in civil rights litigation,
the conflicts with state law were magnified, and magnified
further in suits against private parties. Paul v. Davis
underscores the frustration—there, Justice Rehnquist
complained that Section 1983 is not a font of common law.488 By
treating civil rights law like equity, courts diminish the
circumstances for applying civil rights law, the scope of its
impact, and the development of precedent. The effect is the
preservation of the primacy of private law governing social
relations489 by limiting the scope of civil rights to extraordinary
cases, defined to a great degree as those not governed by the
2. Working as a Mechanism of Ashwander Restraint
Civil rights equity also provides a means of operationalizing
Ashwander restraint. In Justice Brandeis’s Ashwander
concurrence, the Justice articulated canons of judicial
self-restraint that would operate to keep the court from
exceeding its political authority when jurisdiction and the
existence of recognized rights otherwise counseled for judicial
487. See id. at 950–973 (discussing the impact and significance of the Erie
488. Paul v. Davis, 424 U.S. 693, 701 (1976).
489. “As a matter of substantive constitutional doctrine, the Court has
drawn distinct lines between what it considers state law wrongs and
constitutional torts, and has relegated the former to the arena of state tort
remedies.” David Rudovsky, The Qualified Immunity Doctrine in the Supreme
Court: Judicial Activism and the Restriction of Constitutional Rights, 138 U.
PA. L. REV. 23, 25 (1989) (citing DeShaney v. Winnebago Cnty. Dep’t of Soc.
Servs., 109 S. Ct. 998, 1005 (1989); Daniels v. Williams, 474 U.S. 327, 330–31
(1986); Whitley v. Abers, 475 U.S. 312, 319 (1986); Baker v. McCollan, 443 U.S.
137, 144–46 (1979); Paul v. Davis, 424 U.S. 693, 709 (1976)).
1984 78 WASH. & LEE L. REV. 1889 (2022)
intervention.490 These principles of judicial self-restraint would
inform Alexander Bickel’s The Least Dangerous Branch and
become known as doctrines of justiciabilitystanding,
mootness, ripeness, and political question—which courts have
increasingly used to stymie broad civil rights attacks on
persistent social problems.491 More broadly, the cry of judicial
activism has reigned as the seminal attack on civil rights
jurisprudence, particularly where it effects social change.492
Though the growth of justiciability doctrines has created a basis
for judicial self-restraint, the doctrines still amount to the
Court’s assessment of whether there is a case or controversy for
it to decide.493 Judicial self-restraint presumably also
encourages courts to decline to act even where there is a case or
controversy, particularly if a basis for not acting is the risk to
the court’s legitimacy rather than the extent of its
Civil rights equity provides a basis for operationalizing
Ashwander in two complementary ways. First, it defines the
kinds of cases where courts should exercise caution: those where
the question goes beyond recognition (of identities or rights)
under the Constitution or statutes, especially those implicating
complex, multidimensional disputes. This basis for
self-restraint is malleable to be sure, but it is principled and
reflects the very concern that seemed to underlie Ashwander.495
That is, civil rights equity becomes operative where the court is
490. See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 346–48 (1936)
(Brandeis, J., concurring) (recounting cases that the Court has dismissed that
have challenged the constitutionality of acts of Congress).
491. See Allen v. Wright, 468 U.S. 737, 766 (1984).
492. See Rudovsky, supra note 180, at 24–25 (discussing how 42 U.S.C.
§ 1983 has become “the statute of choice for the litigation of constitutional tort
actions” and how the “reorientation of civil rights jurisprudence has blunted
the impact of § 1983”).
493. See Spencer v. Kemna, 523 U.S. 1, 7 (1998).
494. See Ashwander, 297 U.S. at 356
In proceedings for a mandamus, where, also, the remedy is granted
not as a matter of right but in the exercise of a sound judicial
discretion, courts decline to enter upon the enquiry when there is a
serious doubt as to the existence of the right or duty sought to be
enforced. (citation omitted)
495. See id. at 318–22 (finding that, because the Court had previously
decided cases where shareholders challenged corporate acts on constitutional
grounds, standing should be found here).
CIVIL RIGHTS EQUITY 1985
at risk of being pulled into a complex, politically charged dispute
in which the Court’s role as a neutral umpire is undermined and
it is least likely to be able to provide simple orders.496 Cases
implicating social change especially reflect these characteristics
and trigger equity-like limitations that insulate courts from
such controversies.497 Second, civil rights equity provides a
means of processing cases of this complex nature that avoids
casting the Court as just walking away.498 The result might be
the same but civil rights equity provides courts a range of tools
to actually “decide” such cases according to what appears to be
traditional judicial doctrines.
3. Permitting Judicial Restraint in a Supreme Judiciary
Most broadly, civil rights equity implements the Court’s
post-Civil Rights Movement aspirations for judicial restraint
while keeping the judiciary central to calibrating the rights
regime.499 This balance is delicate and the work that civil rights
equity does is central to it. The equity-infused approach allows
courts to reject most rights cases that run against prevailing
social expectations.500 Thus, the social change capacity of civil
rights is throttled. Simultaneously, civil rights equity permits
courts to intervene where they believe an injustice or outrage
496. See Reinert, supra note 39, at 936 (discussing how in the issue of
qualified immunity, for example, legal remedies are often barred but equitable
remedies will be made available).
497. See id. at 943 (arguing that the justiciability requirement standards
make it difficult to prove standing in civil rights cases and create a barrier to
498. See Ashwander, 297 U.S. at 321 (stating that “the opportunity to
resort to equity, in the absence of an adequate legal remedy . . . should not be
curtailed because of reluctance to decide constitutional questions”).
499. Alex Reinert argues that though the Court placed procedural
limitations on damages actions “the Court is consolidating its power. And
moving civil rights litigation into the equitable camp is one way of doing so,
because equity is controlled by judges.” See Reinert, supra note 39, at 946.
Framing damages actions to mimic equity does so more broadly.
500. See id. at 931 (stating that “[c]ommentators for good reason often
speak of the Court’s general hostility to civil rights litigation as a thumb on
the scale in the most contested cases”).
501. See id. (stating that, contrarily, there has been a line of cases that
“suggests an openness to enforcing traditional civil rights values of due process
and rule of law”).
1986 78 WASH. & LEE L. REV. 1889 (2022)
Though central under civil rights equity, the judiciary is not
wholly independent. First, judges are loosely constrained by
public opinion defining (however imperfectly) social outrage.502
Second, the fact-intensive nature of most civil rights cases
means that even a judge with a strong opinion about an
“injustice” will often still need to submit that case to the jury to
identify its view of a remediable outrage. Third, judges are
subject to an appeals process that subjects their view of an
outrage to judgment by appellate peers. The ongoing contest for
control of the judiciary through the appointments process, while
a manifestation of the divisive nature of political discourse
today, is made more relevant by the extreme power that the civil
rights equity approach preserves in courts.503 Courts can defy
public opinion or even the sentiments of the elected branches by
constructing disputes as outrages that need to be addressed if
their views are broadly shared within the judiciary.504
The flexible approach to civil rights cases that civil rights
equity establishes permits the federal judiciary to preserve its
supremacy in constitutional interpretation while cabining the
disruptive effect of civil rights from overwhelming the courts’
constitutional jurisprudence. One version is the aforementioned
extension of Ashwander. But the other, broader effect of civil
rights equity is that it distinguishes “civil rights” from
constitutionalism and ensures that the former is a lesser,
included part of the latter. The Civil Rights Movement and the
rapid expansion of rights-based constitutionalism implied that
the Constitution was fundamentally substantive (at least after
the adoption of the Fourteenth Amendment) and that structural
aspects of the Constitution were secondary to this substantive
502. See Christopher J. Casillas et al., How Public Opinion Constrains the
U.S. Supreme Court, 55 AM. J. POL. SCI. 74, 76 (2010) (arguing that “justices
have an institutional incentive to think about the context in which they make
decisions, and this context includes public opinion”).
503. See Reinert, supra note 39, at 946 (positing that the Court’s
preference for injunctions in civil rights cases comes from the Court
consolidating power to and within the judiciary).
504. See Rachlinski, supra note 334, at 1252–54 (discussing the new
heightened pleading standard under Iqbal and the “reluctance to allow
individuals to use access to the courts (and discovery) as a means of
scrutinizing institutional actors” perhaps stemming from the increased
number of federal judges who previously worked for these institutional actors).
CIVIL RIGHTS EQUITY 1987
regime.505 Civil rights equity reverses this by making rights
claims exceptional and contingent on broad notions of outrage
and injustice.506 Routine disputes are no longer the stuff of civil
rights cases, even as the Court’s rejection of structural reform
made broad institutional challenges a dead letter. Thus, in civil
rights jurisprudence, the role of the judiciary is defined as
intervening to address governmental incursions of individual
liberty (civil liberties cases) or, in more complex cases (civil
liberties cases implicating multidimensional disputes between
multiple individuals or groups, or civil rights cases, which
always implicate multidimensional disputes), intervening to
address abuse of rights (outrages, miscarriages of justice).
D. Resolving Civil Rights Paradoxes
Civil rights equity is also helpful to explain widely held
notions about civil rights that seem contradictory. First, many
see the broad civil rights jurisprudence as ever-present and
robust, some would say oppressive, even as claimants in civil
rights cases have extremely low success rates.507 Generally, the
explanation of this contradiction is that civil rights cases are
sufficiently embarrassing that individuals tread lightly.508 Civil
rights equity offers another explanation: successful cases,
however rare, constitute broad indictments of the institution
and its leaders precisely because it will rightly be understood
that the underlying behavior was sufficiently outrageous to
justify extraordinary judicial intervention.509 So civil rights
litigation comes to be understood as a contest to appeal beyond
505. See Glennon, supra note 208, at 358 (“The fourteenth amendment and
its substantive cause of action, section 1983, created federal rights and
provided a federal forum for their vindication.”).
506. See BLAUSTEIN & FERGUSON, supra note 101, at 162–64 (discussing
how pecuniary damages have limitations as a solution to controversy, while
courts in equity can impose direct ordersthough not without their own
507. See BERREY ET AL., supra note 431, at 293 (showing the percentage of
plaintiff trial wins for employment discrimination cases is 2.14 percent).
508. See EPP, supra note 470, at 22 (observing the fear of liability for the
public embarrassment and reputational damages that goes along with it).
509. See Chayes, supra note 182, at 1302 (concluding that “[t]he subject
matter of the lawsuit is not a dispute between private individuals about
private rights, but a grievance about the operation of public policy”).
1988 78 WASH. & LEE L. REV. 1889 (2022)
the courts, to establish that a deep miscarriage of justice has
occurred. In this view, it is not just that defendants resist
settlement because they are likely to win, but also that
settlement implies acknowledgement of more than the routine
right or wrong of a car accident or breach of contract; it suggests
a moral and institutional failing.
Second, it is widely assumed that civil rights robustly
protect minorities, despite the failure of civil rights law to
produce substantial benefits linked to particular areas of civil
rights law for minority communities.510 In the case of Black
Americans, for example, employment discrimination protections
have not wiped away disproportionate unemployment, wage
inequalities, and broad disparaging assumptions about Black
Americans’ fitness for attractive employment.511 Much has been
written in an effort to explain this contradiction, but the notion
that civil rights protections are available only for extreme cases
of discrimination as opposed to the routine prejudice that infects
employment decisions is a strong explanation of this paradox.512
Civil rights litigation focused on outrages is not amenable to
addressing problems like embedded, routine prejudice, much
less implicit bias.
An additional, related paradox that this view of civil rights
explains is how civil rights protections can expand continuously
and remain unsatisfactory to those they are supposed to
protect.513 Though more rights have been recognized and more
groups covered by civil rights, that expanded coverage does not
seem closely correlated with social change.514 Arguably, the lack
510. See id. at 1310 (discussing the issues surrounding the widespread
impact of public law litigation and lack of adequate representation for those
511. See Economic New Release: Table A-2. Employment Status of the
Civilian Population by Race, Sex, and Age, U.S. BUREAU OF LAB. STAT. (Sept. 3,
2021), https://perma.cc/C4TN-XYU7 (showing the unemployment rate for the
black civilian noninstitutional population being 9.1 percent in August of 2021
compared to the white civilian noninstitutional population being 4.6 percent).
512. See Eyer, supra note 302, at 1276 (noting that “less than 5% of all
discrimination plaintiffs will ever achieve any form of litigated relief”).
513. See id. at 1279–80 (suggesting that expansion of recognition might be
related to lower success rates).
514. See id. at 1280 (positing that in order to effectuate improved outcomes
for victims of discrimination, alternative methods for reform may need to be
CIVIL RIGHTS EQUITY 1989
of recognition is tantamount to a kind of non-existence in a
shrinking, pop-culture infused world. Yet rights for the
recognized group seem ancillary to social change, except in
initiating a conversation about status. Thus, many arguments
about the limits of law have emerged, suggesting that law is an
inappropriate, clumsy, or broken tool for change that should be
relegated to a secondary role to organizing, protesting, or
voting.515 Surely law’s role is not superior to these important
political tools but neither should it be regarded as subordinate
to them. In any case, the promise of “rights” implies a powerful
if not superior role for law that is not supported by how civil
rights have worked in the United States. Law’s importance in
ensuring “justice” where there is none underscores the value of
recognition, while its operation as a supplement to “normal law,”
tailored for use in cases of outrages, explains the limitations of
and disappointments with civil rights law in producing social
Ultimately, the civil rights equity view of civil rights law
explains an uncomfortable adage. It is commonplace for people
to say, “but if it were a black person, you wouldn’t . . . ,” implying
that, in whosever’s interest the speaker is speaking, they should
get the same rights that Black people do. Unfortunately, in most
of these cases it isn’t clear that a Black person would enjoy
protection from civil rights. This use of a notion of the Black
person as the special ward of the state through civil rights is an
assumption that has undercut the legitimacy of civil rights516 by
positing it as biased, but it also glosses over the significant
hurdles to recovery in civil rights cases.517 Thus, the adage
extends the benefits of civil rights law on whosever’s behalf it is
invoked, while the Black citizens to which the adage referred
may never have enjoyed those benefits. Because civil rights
515. See, e.g., Johnson, Equality Directives in American Law, supra note
468, at 1342–43 (arguing to place “positive duties on state actors to promote
equality and inclusion” rather than relying on a fragmented enforcement
system via the courts).
516. This dates to at least Justice Bradley’s opinion in The Civil Rights
Cases. 109 U.S. 3, 25 (1883).
517. See Suzette M. Malveaux, Clearing Civil Procedure Hurdles in the
Quest for Justice, 37 OHIO N.U. L. REV. 621, 621 (2011) (suggesting that
pleading standards, class action requirements, and forced arbitration are
creating substantial procedural hurdles in bringing civil rights cases).
1990 78 WASH. & LEE L. REV. 1889 (2022)
equity permits widely held presumptions to guide legal
outcomes, the contradiction described here falls away.
The public believes civil rights law is robust and seeks to
extend its benefits horizontally to all those meeting the
presumption of their beliefs. Consequently, civil rights law has
been disseminated broadly even if its depth of coverage leaves
much to be desired. And since civil rights equity presumes civil
rights are available only in extreme cases measured against
popular presumptions, civil rights protections extend vertically
only to those cases jurists believe represent injustice. The
imagined recoverable violation against the Black litigant
operates comfortably as the standard for protecting others.
Because of equity’s focus on substantive justice, popular
notions of equity cast it as liberating: equity comes to the rescue
where the law fails. But as a system that is supplemental, equity
is also limiting. Equity as a model for law diminishes it,
preventing it from doing justice. Similarly, flexibility in legal
regimes—standards over rules—is seen as liberating, giving
judges the means to do justice. But that very flexibility can work
against achieving justice. In a flexible regime, justice becomes
optional. And where the tools created to reconcile a flexible
system of equity with law’s important values of consistency and
predictability are deployed to avoid consistency and
predictability, flexibility becomes a ready means of limiting the
occasions for justice. The pursuit of justice is reserved for some
cases, some of the time. This is civil rights equity: a special use
of equity ideals to make civil rights more flexible, less certain,
and less consistent—less law.
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