Institutional and Political Strategic Context

Understanding the legislative outcome on fair employment practice enforcement in 1964 requires bearing in mind the institutional and electoral strategic context that produced it. In the two post-war decades leading to passage of the CRA of 1964, the most vociferous opponents of civil rights legislation, overwhelmingly southern Democrats, regularly exploited the veto points riddling Congress to kill civil rights bills that could have commanded a simple majority in a floor vote.Footnote ²⁷ The committee system in which seniority was paramount, coupled with the longevity of southern legislators in what was effectively a one-party regime in the region, guaranteed to southerners gate-keeping control of key committees, which they used to quash civil rights bills time and again. The Senate Judiciary Committee, chaired from the 84^th to the 95^th Congresses by Mississippi Democrat and fervent civil rights foe James Eastland (D-MI), was widely known as a “graveyard of civil rights legislation.”Footnote ²⁸ The most significant obstacle, however, was the Senate filibuster rule that allowed a bill to be defeated by 34 votes against ending debate. The southern Democratic anticivil rights block needed a relatively modest number of conservative Republicans, with antibusiness regulation and/or states rights leanings, to join them in order to defeat cloture, something they consistently achieved to repulse race legislation that would threaten Jim Crow. As an institutional terrain that civil rights legislation had to circumnavigate, Congress was a counter-majoritarian minefield.

In the years leading up to the battle over the CRA of 1964, however, both parties had electoral incentives to try. Between the mid-1950s and the early 1960s, the historic, moving, and, to some, frightening achievements of the black civil rights movement in Montgomery, Little Rock, Greensboro, and Birmingham, and the often brutal and sometimes deadly white southern reactions to them, effected dramatic change in the climate of opinion in the United States in favor of civil rights legislation. Civil rights were thereby forced onto the federal legislative agenda and became an important locus of party competition.Footnote ²⁹ Although the black vote was solidly Democratic in the presidential elections of 1956 and 1960, it was not overwhelmingly so, as it would become and remain for decades after the bid for the presidency in 1964 by Goldwater, who had voted against the act.Footnote ³⁰ In view of their southern wing, Democrats were no more identified in the mind of the American voter as the party of black civil rights than were Republicans during this period, and Republicans had successfully underscored southern Democratic obstruction of civil rights legislation to make some inroads among black voters.Footnote ³¹ Following introduction of the Kennedy administration's omnibus civil rights bill in 1963, although northern Democrats were certainly its keenest advocates, a majority of both parties, with an uneasy gaze fixed on the 1964 elections, would want to claim credit for its successes, and perhaps even more were anxious to avoid having responsibility for its failures laid at their feet.

In 1963–64, members of Congress could be broadly grouped into three types on civil rights issues.Footnote ³² Northern liberals, predominantly but not exclusively Democrats, were ardent civil right advocates. Nearly all southern Democrats and the most staunchly conservative Republicans were devoted and predictable opponents. Between these two poles, moderate and many conservative Republicans, largely from the Northeast and Midwest, were possible supporters of civil rights legislation, though there were definite limits to the level of intervention in the economy and encroachment on state prerogative that they would tolerate. A substantial share of these Republicans, neither certain supporters nor certain opponents of civil rights legislation, would be needed to pass the Kennedy administration's bill, particularly in the Senate to break the filibuster. These Republicans were the pivotal voters in the legislative process that produced the Civil Rights Act of 1964.Footnote ³³

Conflicts Over Civil Rights Enforcement in the Late 1950s

Growing demand for civil rights legislation in the second half of the 1950s produced the Civil Rights Acts of 1957 and 1960, the first federal civil rights laws to be enacted since 1875. The 1957 Act created the U.S. Commission on Civil Rights to study violations of voting and other civil rights and to recommend remedial legislation; created the Civil Rights Division in the Justice Department; and empowered the Justice Department to file civil actions and obtain injunctions in certain voting rights cases.Footnote ³⁴ The 1960 Act empowered federal judges, upon finding a “pattern or practice” of voting discrimination, to appoint federal referees authorized to register voters, laid out standards for doing so, and required the maintenance of certain voting records.Footnote ³⁵ Most salient to the present discussion, however, were provisions of both bills struck as a condition of passage in the Senate.

The essential legislative conflicts in both 1957 and 1960 were focused overwhelmingly on the allocation of powers to enforce civil rights laws, not on substantive rights.Footnote ³⁶ Civil rights advocates in Congress proposed in both laws inclusion of provisions authorizing the Attorney General to prosecute civil actions and obtain injunctions on behalf of aggrieved parties under all federal civil rights laws. This would have included, perhaps most prominently, the Civil Rights Act of 1871, which prohibited the deprivation of any federal right by a state actor, including the Fourteenth Amendment right to equal treatment without respect to race, in such domains as schooling, voting, employment, and public facilities of any kind. The prospect of across-the-board civil rights enforcement by national authorities provoked fierce opposition by southerners in both 1957 and 1960.Footnote ³⁷ In order to overcome opposition and pass some civil rights legislation, the across-the-board federal enforcement powers were dropped in both years.

The Reconstruction civil rights laws that would have been covered by the defeated federal enforcement authority already contained private rights of action, as did many state civil rights laws. However, civil rights proponents regarded federal enforcement authority as critical, because private civil suits had proven an ineffective enforcement mechanism. They were, in practice, much too infrequent, despite widespread discrimination, to meet even minimal enforcement requirements.Footnote ³⁸ Civil rights advocates diagnosed this under-enforcement problem as resulting from a number of sources, the most important of which were economic. Civil rights plaintiffs were typically poor and thus unable to pay the considerable legal costs of federal litigation.Footnote ³⁹ Under the standard “American rule” on legal fees, each side pays their own whether they win or lose.Footnote ⁴⁰ Although counsel could take civil rights cases based upon a contingency agreement to keep a share of damages recovered, economic damages in most civil rights cases were both small and highly speculative.Footnote ⁴¹ Consequently, Jack Greenberg explained in 1959 when an NAACP lawyer, soon to succeed Thurgood Marshall as Director-Counsel, “these cases involve … the expense of engaging counsel, whose fee is unlikely to be recompensed by the amount of damages awarded, even if they won.”Footnote ⁴² Civil rights advocates well understood, according to Greenberg, that without “counsel fees for prevailing plaintiffs … virtually no lawyers could undertake difficult time consuming cases.”Footnote ⁴³ In economic terms, most civil rights claims were not just low value; they were negative value.

In addition to this dire economic calculus, there were several other factors that led to the paucity of litigation under civil rights statutes providing private rights of action. Greenberg reported that in some parts of the South it was not possible for blacks to retain counsel in civil rights cases even if they could pay. “The Southern white attorney who will handle a desegregation case is almost unique,” Greenberg wrote in 1959, and “many large Negro centers and even some important cities in the South still have no Negro lawyer or but a few.”Footnote ⁴⁴ A plaintiff who did sue could expect business and governmental defendants with bountiful legal resources to cause extensive delay and drive up costs through the use of elaborate opportunities for procedural gamesmanship in court proceedings.Footnote ⁴⁵ In the South, where enforcement was most needed, prospective plaintiffs had good reason to fear harassment, possibly violent, for filing suit,Footnote ⁴⁶ and to anticipate biased juries and judges if they had the courage to do so.Footnote ⁴⁷ Private litigation was inherently limited as a civil rights enforcement mechanism, thought civil rights groups, and thus it was absolutely imperative that national authorities be given strong enforcement powers.

Developments in the House: From Administrative to Judicial Power

The job discrimination bill that ultimately became Title VII of the CRA of 1964, after the considerable amendment process traced below, was initially introduced in the House as H.R. 405 in January 1963 by Representative James Roosevelt (D-CA), the son of Franklin Delano Roosevelt and a liberal Democrat with a record of devoted advocacy for strong job discrimination legislation.Footnote ⁴⁸ The bill was referred to the House Committee on Education and Labor, chaired by another vigorous civil rights advocate, Democrat Adam Clayton Powell (D-NY) of Harlem, and in July 1963 the committee reported the bill and recommended passage.Footnote ⁴⁹ Struggles over the bill reflect that by 1963, for legislators outside the South, the central field of battle on job discrimination legislation did not concern what rights should be enacted, but rather how and by whom they should be enforced.

H.R. 405 framed a robust administrative enforcement machinery closely modeled on the NLRB. It created the Equal Employment Opportunity Commission (EEOC), which was composed of a board and an office of the administrator. The board would be a quasi-judicial body, constituted by five members appointed by the president and serving staggered seven-year terms, with authority to hold administrative hearings on complaints and issue enforceable orders to cease-and-desist, reinstate, hire, and award back pay.Footnote ⁵⁰ The administrator, also appointed by the president and serving a four-year term, was empowered to conduct investigations, including the authority to demand and inspect records and compel testimony, and would prosecute cases before the board.Footnote ⁵¹ Judicial review would be directly to the court of appeals on the record developed by the agency, and agency findings of fact were deemed conclusive provided they were supported by substantial record evidence.Footnote ⁵² The judicial review framework, governed by the Administrative Procedures Act, was highly deferential to the agency.Footnote ⁵³ Complaint processing within this framework would proceed as follows: The administrator would investigate all charges; if it was determined upon investigation that no “probable cause” existed to credit the charge, it would be dismissed. If, upon investigation, it was determined that probable cause did exist to credit the charge, the administrator would attempt voluntary conciliation, and failing that, would conduct an evidentiary hearing and present the hearing record together with a recommended decision to the board, which in turn would render a final decision.Footnote ⁵⁴

This initial formulation of what would become Title VII was like the National Labor Relations Act in one other respect: the administrative venue was exclusive, and there would be no private right to prosecute enforcement actions in court.Footnote ⁵⁵ H.R. 405, with its administratively centered enforcement framework—with no trial court proceeding and no private right of action—embodied the enforcement preferences of civil rights proponents among legislators and activists.Footnote ⁵⁶ Democrats had consistently advocated for this administrative enforcement framework, with no private right to litigate, in job discrimination bills since 1944,Footnote ⁵⁷ and, as already noted, it was the overwhelmingly dominant model at the state level.Footnote ⁵⁸

Civil rights advocates regarded the administrative cease-and-desist model as superior to court-based implementation for a number of reasons. Probably most important, it was relatively fast and cheap. As compared with procedurally complex, temporally protracted, and financially draining litigation, the administrative process—being more flexible and less rigidly encumbered by formal legal procedures—would be a more expeditious venue in which individual workers could enforce their rights, and would be less costly, with the investigation and prosecution conducted and paid for by the government. Whereas federal judges are generalists, an administrative approach would better leverage needed administrative expertise. Whereas courts passively wait for often fearful and vulnerable individuals to step forward and initiate civil rights suits, an administrative organ of government could proactively pursue a systematic enforcement program. As compared with a multitude of trial judges making civil rights policy in a piecemeal and decentralized manner, in response to individual complaints, a centralized agency could create policy that is unified, coherent, and more predicable.Footnote ⁵⁹ Bureaucracy, civil rights advocates thought, would be better than lawsuits: far better.

Of the CRA of 1964's two radical new interventions in the private sector—employment (Title VII) and public accommodations (Title II)—civil rights advocates anticipated that the real enforcement battles would be fought out in the job discrimination context, and thus they were far more concerned with securing administrative enforcement of that title. Although their first preference for public accommodations enforcement was also administrative, they anticipated ready compliance with the public accommodations provisions, which they believed would actually serve business proprietors' economic interests, and the violation of which would be quite simple and straightforward to prove. Thus, the judicial enforcement venue in the initial formulation of the public accommodations title in the bipartisan bill worked out between the Kennedy administration and Republican leadership was never contested by civil rights groups. However, civil rights advocates anticipated fierce resistance to Title VII in some sectors of American labor markets, and they regarded the prospect of proving intentional discrimination, which generally would entail proving decision makers' subjective state of mind, to be far more challenging. From civil rights groups' perspective, Title VII presented a monumental enforcement challenge, and thus it was particularly important to secure an administrative enforcement framework.Footnote ⁶⁰

Seven Republicans on the Education and Labor Committee voiced strenuously dissenting views in the Report on H.R. 405. Of the seven, five articulated clear support for the substantive antidiscrimination prohibitions in the bill. However, all of the dissenters, in three separate opinions, trained their twofold attack on the enforcement provisions. First, they claimed that the proposed agency mirrored the excessive bureaucratic regulation of business that was characteristic of the NLRB, and of so much administrative state building since the New Deal. It epitomized the “ever-increasing encroachment on the part of administrative tribunals,”Footnote ⁶¹ which resembled “the arbitrary fiat of king or baron,”Footnote ⁶² and would “involve the federal government in the most intimate details of the operation of every business enterprise” in the nation.Footnote ⁶³

Second, they stressed that these agencies, whose leadership had been appointed by Democratic presidents in all but eight of the last thirty-one years, were ideologically slanted against business and susceptible to the president's political influence in ways that Congress could not control. On this point, the analogy of the proposed EEOC to the NLRB, on which it was so clearly modeled, was repeatedly invoked by Republicans as emblematic of the political mischief that could emanate from strong bureaucratic powers placed in the hands of overzealous administrators appointed by liberal interventionist presidents. Republican committee members Dave Martin (R-NE) and Paul Findley (R-IL) warned in their dissent from the committee report: “It is a major mistake to model legislation in this field on the National Labor Relations Board, which has one of the sorriest records of all the Federal agencies for political involvement.”Footnote ⁶⁴ This concern was echoed by fellow Republican dissenters Peter Frelinghuysen (R-NJ) and Robert Griffin (R-MI), who also likened the proposed EEOC to the NLRB, complaining that “administrative tribunals … too often operate in an atmosphere of political and emotional pressures.”Footnote ⁶⁵ Roosevelt's and Truman's NLRB had vigorously pursued labor policies abhorred by the conservative coalition of Republicans and southern Democrats—policies which that coalition regarded as grounded more in executive ideology than legislative intent, and which produced perennial, intense, and memorable legislative–executive conflict over control of the agency.Footnote ⁶⁶ Similar executive politicization could surely be expected at Kennedy's EEOC. In sum, the Republican dissenters—who would live to fight another day, as we shall see—opposed an NLRB-like enforcement regime for job discrimination because they disfavored bureaucratic regulation of business in general, and saw bureaucracy as susceptible to political influence beyond their control, particularly by the proregulatory Democratic presidents who had dominated the executive branch for decades and would appoint EEOC leadership at least in the short run and possibly in the long run.

The Republican dissenters also converged on what the enforcement scheme should be: they demanded the “historic safeguard of trial before an impartial judiciary.”Footnote ⁶⁷ Rejecting the NLRB-like administrative adjudication model, they called for a prosecutorial one. The agency should be stripped of the power to hold hearings and issue cease-and-desist orders and instead limited to conducting investigations and prosecuting actions in federal trial courts, which would render fact-finding, liability, and remedy determinations. Republicans had supported the committee in reporting a fair employment practices bill in 1962 with such court-centered enforcement provisions and the administrator acting as prosecutor.Footnote ⁶⁸ They had long complained that the informality of administrative proceedings against business in New Deal agencies such as the NLRB, in the hands of overzealous and interventionist enforcers, resulted in relaxing the burden of proving violations, and in loosening the standard of what evidence could be introduced to establish liability, to the point of stacking the deck against business.Footnote ⁶⁹ Dissenters from the House Report chided that the “NLRB-type administrative tribunal” which H.R. 405 proposed to create to enforce Title VII, “ha[s] acquired a well-deserved reputation for ignoring the rules of evidence,” and it is one before which “the accused … must bear the burden of proving his freedom from guilt.”Footnote ⁷⁰

As compared to such proceedings, Republicans concerned with protecting business interests reasoned that it would be more difficult to establish the liability of defendant–employers in federal courts, in which more extensive and formalized procedural rules, such as the plaintiff bearing the burden of proof by a preponderance of the evidence, and the constraints imposed by the federal rules of evidence, were institutionalized. A judicial venue had other potential benefits, from defendant–employers' point of view, which were the flip side of reasons that civil rights groups wanted an administrative venue. The lawyer-dominated procedural formality and complexity of court would allow employers with deep pockets, and concomitant access to legal resources, to cause enforcement actions to be protracted and very costly, thereby discouraging them. Further, and perhaps most important, it was absolutely beyond question that the EEOC would be capable of adjudicating vastly more administrative complaints than it would be capable of prosecuting federal lawsuits, and thus far fewer claims would actually be adjudicated in a court-centered framework. At this stage, though, the Republican dissenters had lost the fight.

The next move for proponents of H.R. 405 was to get it incorporated into the Kennedy administration's civil rights bill (H.R. 7152), then being considered by Subcommittee No. 5 of the House Judiciary Committee, which held hearings on numerous comprehensive civil rights bills during the summer of 1963.Footnote ⁷¹ In crafting H.R. 7152 the administration's strategy was to collaborate closely with Republican leadership in order to produce a bipartisan bill that would attract sufficient Republican support to overcome the inevitable southern Democratic opposition, particularly the filibuster in the Senate. William McCulloch (R-OH), the ranking Republican on the House Judiciary Committee, insisted on two things as a condition of cooperation with the administration: that the administration publicly share credit with Republicans for a successful civil rights law, and that any bipartisan compromise bill agreed to in the House be capable of commanding a cloture vote in the Senate.Footnote ⁷² With respect to the latter condition, House Republican leadership wanted to avoid pressing members from more conservative districts to cast risky votes for an overly ambitious bill that would subsequently be cut back in any event. They also wanted to avoid presenting conservative Republicans in the Senate, who would occupy the filibuster pivot, with a more sweeping bill than they could stomach, thereby cornering their party brethren into the role of pruning it back and handing Democrats an electoral club with which to beat them in 1964.Footnote ⁷³

The bipartisan compromise reached—H.R. 7152—had no provisions prohibiting discrimination in private employment.Footnote ⁷⁴ The president's view was that prohibiting discrimination in private employment was among the most controversial items on the civil rights agenda; including it would provoke such fierce opposition by Republican opponents of business regulation that it had no chance of survival and might kill any bill to which it was attached.Footnote ⁷⁵ However, leading civil rights groups and their liberal Democratic allies in Subcommittee No. 5 proved unwilling to acquiesce to the administration's conservatism on this issue. They pressed energetically for incorporation of H.R. 405 as reported by the Education and Labor Committee, with its compulsory employment discrimination provisions governing private employment and its strong administrative enforcement machinery, into the administration's civil rights bill. They succeeded, and along with a number of other important strengthening measures, Subcommittee No. 5 voted to incorporate H.R. 405 before referring the administration's bill to the full Judiciary Committee.Footnote ⁷⁶ The Republican leadership with whom the administration had fashioned the bipartisan compromise bill cried foul and threatened that if reported by the full committee, this stronger version of H.R. 7152 would be cut to pieces via amendments on the House floor.Footnote ⁷⁷ The administration intervened aggressively and, after intense negotiations, managed to restore enough of the compromise embodied in the original H.R. 7152 to retain the support of Republican House leadership for a bill that liberal Democrats on the Judiciary Committee would also vote for.Footnote ⁷⁸

When the controversy blew up over the expansiveness of Subcommittee No. 5's amendments to the compromise bill, the adoption of the strong employment discrimination provisions (H.R. 405) was arguably the single most controversial change.Footnote ⁷⁹ However, as with the views of the Republican dissenters from the Education and Labor Committee Report on H.R. 405, Republican grievances were focused on the proposed administrative enforcement machinery rather than on the substantive rights themselves. The compulsory job discrimination prohibitions governing the private sector were retained in the new compromise bill reported by the Judiciary Committee—as Title VII—but the provisions for enforcing the prohibitions were radically altered.

These new Title VII enforcement provisions were drafted by Republicans, to meet Republican preferences, as a condition of Republican support.Footnote ⁸⁰ Robert Griffin (R-MI), Charles Goodell (R-NY), and Albert Quie (R-MN) were the chief architects of the new enforcement provisions.Footnote ⁸¹ They precisely reflected the preferences of the Republican dissenters in the House Report on H.R. 405 (of whom Griffin had been one), outlined above, which were grounded in grave concern about an overzealous agency politicized through executive appointments. The enforcement regime was transformed from an administrative adjudicatory model to a prosecutorial model. Agency powers to hold hearings and issue judicially enforceable orders to cease-and-desist, to reinstate, to hire, and for back pay were deleted. In their place was substituted agency authority to act as prosecutor in federal district courts. The new language provided that if two or more of the five-member commission found, after investigation, reasonable cause to believe that discrimination had occurred, the commission “shall” bring a civil action.Footnote ⁸² It would be up to courts to find facts and elaborate the concrete meaning of Title VII's broadly formulated prohibitions.

Vote counts in the House indicated that there was majority support for giving the EEOC cease-and-desist powers.Footnote ⁸³ A number of observers close to the negotiations, including Leadership Conference General Counsel Joseph Rauh, stated that the elimination of cease-and-desist powers was aimed at the Senate, where it was believed that they could not make it past the filibuster pivot, which, it was widely recognized, would be controlled by Senate minority leader Everett Dirksen (R-IL).Footnote ⁸⁴ This move was consistent with the House Republican leadership's strategy that any bipartisan compromise bill agreed to in the House be capable of commanding a cloture vote in the Senate. Cease-and-desist powers did, however, face opposition by important conservative House Republicans as well. William McCulloch (R-OH), ranking minority member of the House Judiciary Committee and a key Republican with whom the administration negotiated the version of H.R. 7152 that was reported, included in the committee report a statement of additional views on behalf of himself and six other committee Republicans that laid out their reasons for supporting the switch from administrative cease-and-desist to court-based implementation.

Their reasons closely paralleled those of the dissenters in the earlier House Report on H.R. 405. Politicization of the agency by an ideologically distant executive branch was again a central concern. These Republicans, facing a Kennedy White House and writing at a time when six of the last eight presidential administrations were Democratic, were strongly disinclined to fashion new and potent administrative powers and deliver them into the hands of their Democratic opponents. They expressed anxiety about the likelihood of an ideologically liberal commission, to be appointed, they thought, by Kennedy, hell bent on pursing an agenda of “forced racial balance” with “mathematical certainty” in employment. The more extensive and formalized procedural regimen of federal courts would be far more conducive to employers “establishing innocence,” and, as already noted, it would certainly lead to adjudication of many fewer claims than a commission that could investigate and adjudicate complaints at no cost to the claimant. According to the committee Republicans:

The suspicion that the Kennedy administration would pursue an aggressive policy of racial preferences, if given the power to do so, was expressed more sharply in the Minority Report, which claimed that such practices were already being carried out in Kennedy's Department of Labor.Footnote ⁸⁶ The proposed civil rights bill “vests … almost unlimited authority in the President and his appointees to do whatever they desire,” complained the dissenters, and this authority would be used to force employers “to hire according to race, to ‘racially balance’ those who work for him in every job classification or be in violation of Federal law.”Footnote ⁸⁷

It is in the House Republican amendments, diminishing administrative power and enhancing judicial power, that the prospect of private enforcement litigation makes its first appearance in Title VII's legislative history, though in an extremely qualified sense. The bill provided that if the commission failed or declined to bring a civil action, “the person claiming to be aggrieved may, if one member of the Commission gives permission in writing, bring a civil action to obtain relief.”Footnote ⁸⁸ There is no private right to sue, for private suit is wholly dependent on administrative authorization. Further, this version of Title VII does not include a fee-shifting provision allowing a winning plaintiff to recover attorney's fees, a tool legislators were certainly aware of because one was included in the public accommodations title in the same bill.Footnote ⁸⁹ Given that in the bill, the only economic damages provided for under Title VII were back pay,Footnote ⁹⁰ the need to deduct attorney's fees from that award would have rendered a rather modest, and in many cases negative, economic incentive for private enforcement, even in the event of administrative authorization to proceed.

It bears emphasis that, although weakening and circumscribing the agency role, in the House-passed Title VII the agency was still given solid enforcement powers of a kind that had largely eluded civil rights proponents in the Acts of 1957 and 1960, and the power to issue binding orders had not been eliminated from the enforcement regime, but rather had been transferred from the agency to courts. The House-passed bill created a mission agency, charged it with the initial investigation and evaluation of complaints, empowered it as prosecutor to set and execute a federal enforcement agenda, and allowed it to utilize, or decline to utilize, private enforcement litigation.

Developments in the Senate: Privatizing the Prosecutorial Function

It was a forgone conclusion that there would be a southern Democratic filibuster in the Senate. It was also clear that non-southern Democrats would have to attract the support of at least twenty Republicans to secure cloture. Although there were approximately a dozen moderate or liberal Republicans who could likely be recruited without much difficulty, there would be no cloture without a sizable share of the conservative Republicans.Footnote ⁹¹ As has been widely observed in the historical literature on the legislative events leading to passage of the CRA of 1964, Everett Dirksen, minority leader and ranking Republican on the Judiciary Committee, would play a decisive role in securing, or not, the votes of the conservative Republicans needed for cloture. Although Dirksen faced a political climate in which appearing anticivil rights could cost Republicans in the upcoming election of 1964, his pivotal role gave him leverage to shape the legislation to suit his and his constituents' preferences better than the House-passed version.Footnote ⁹²

Whereas the key move of House Republicans on the fair employment provisions had been to judicialize the enforcement forum, relying upon bureaucratic authority to execute the prosecutorial function, the key move of Republicans in the Senate, led by Dirksen, was to substantially privatize the prosecutorial function. They made private lawsuits the dominant mode of Title VII enforcement, creating an engine that would, in the years to come, produce levels of private enforcement litigation beyond their imagining. Although a number of important changes to Title VII occurred in the Senate,Footnote ⁹³ I constrain myself here to those concerning who would have the power to enforce the law and under what circumstances.

Dirksen was particularly influential among the Republican wing representing the strongly antiregulatory preferences of American business. As negotiations in the Senate over the House-passed H.R. 7152 were unfolding, Murray Kempton observed in The New Republic regarding this wing of the party:

Indeed, according to participants in the negotiations, during their course Dirksen was in communication with representatives of the National Association of Manufacturers, which did not oppose the bill, concerning ways that its job discrimination provisions could be amended to minimize their encroachment on employer prerogative.Footnote ⁹⁵

In laying out on the Senate floor what he regarded as deficiencies in the House-passed version of Title VII, Dirksen forcefully struck the same two linked notes that House Republicans had: it created excessive bureaucratic regulation of business, and the overzealous liberals who would be chosen to wield the proposed new instruments of administrative power would abuse them. He exhorted that the EEOC's envisioned investigatory powers were boundless, affording no protection whatsoever “to an employer from fishing expeditions by investigators, in their zeal to enforce title VII.”Footnote ⁹⁶ He complained of “layering upon layer of enforcement,” which would be used by ideologically biased administrators to “draw and quarter the victim,” by which he meant American business.Footnote ⁹⁷ In pursing amendments to Title VII's enforcement provisions, Dirksen sought to minimize its “infringement on business freedom”Footnote ⁹⁸ and “harassment of businessmen,”Footnote ⁹⁹ particularly as it affected big business in the North, a critical Republican constituency.Footnote ¹⁰⁰

The compromise that was ultimately achieved, securing sufficient Republican votes for cloture and opening the way to passage of the landmark legislation, was principally negotiated off the Senate floor among Dirksen, the Kennedy Justice Department, and Democratic and Republican Party leaders in Congress. The details and language of the compromise were mainly hammered out in the minority leader's conference room by several conservative Republican lawyers on Dirksen's Judiciary Committee staff, working together with Justice Department lawyers, including: Nicholas deB. Katzenbach, Deputy Attorney General; Burke Marshall, Assistant Attorney General heading the Civil Rights Division; David Filvaroff, special assistant in the Department of Justice; and Harold Green, chief of appeals and research, Civil Rights Division.Footnote ¹⁰¹ John G. Stewart, legislative assistant to Hubert Humphrey (D-MN)—Democratic floor manager in the Senate for the CRA of 1964—recounts that while the substantive employment discrimination prohibitions in Title VII, as passed by the House, were not seriously contested by Dirksen, the details of how those prohibitions would be enforced was among the most difficult issues on which to achieve compromise in the entire bill.Footnote ¹⁰² Dirksen was adamant from the outset, and ultimately proved impossible to move, in his insistence that the central burden of enforcing Title VII lay with private plaintiffs. In the first circulated draft of Dirksen's proposed amendments to Title VII, “Dirksen proposed shifting the burden of enforcing the equal employment standards in Title VII from the … [EEOC] to the individual complainant,”Footnote ¹⁰³ eliminating the EEOC's right to sue and reducing its authority to nothing more than investigator and supervisor of voluntary conciliation efforts, leaving the national government with no enforcement authority whatsoever.

After extensive negotiations, a compromise was reached in which Title VII would have a blend of public and private enforcement, with private enforcement clearly predominating. Dirksen secured Democratic agreement to stripping the EEOC of any enforcement powers whatsoever. Under limited circumstances (discussed below), the Department of Justice, rather than the EEOC, would be allowed to prosecute Title VII claims. Dirksen well understood “that the Justice Department was a relatively small, elite cabinet agency, … and so prided itself on enforcement through key case selection rather than through massive litigation, … pos[ing] a smaller threat of potential harassment to employers than would a new mission agency like the EEOC, which reminded Dirksen and his more conservative colleagues uncomfortably of its crusading early model: the NLRB.”Footnote ¹⁰⁴ This weaker organ of administrative power would also be authorized, relative to the EEOC's right to sue in the House-passed Title VII, to prosecute a much narrower range of cases. The Attorney General could only initiate suits based upon a “pattern or practice” of discrimination. With this language, Dirksen sought to limit federal enforcement to circumstances in which regular, repeated, consistent, and officially sanctioned discrimination could be documented. Its purpose was to focus federal enforcement on employers in the South, where systematic policies of discrimination were widespread, and minimize it in the North, where employment discrimination was overwhelmingly de facto rather than de jure.Footnote ¹⁰⁵

Further, the House-passed version had stated mandatorily that the EEOC “shall” file suit upon a finding of discrimination that it could not conciliate, whereas the Dirksen substitute stated that the Justice Department “may” file suit, in its discretion, upon finding a pattern or practice of discrimination.Footnote ¹⁰⁶ It would be under no obligation to do so. Although the Justice Department could not initiate non-pattern or practice suits, it was given authority, only in the court's discretion, and only upon a finding that the case implicates issues of “general public importance,” to intervene in such cases if an individual had already elected to file suit.Footnote ¹⁰⁷ To the extent that it had the resources and commitment, the Justice Department could only set an affirmative and coordinated enforcement agenda in the limited pattern or practice context, and even in that limited context, it was not required to prosecute manifestly meritorious claims. Dirksen regarded the net effects of these concessions on executive enforcement powers by supporters of the Kennedy administration's bill to be extremely significant, and he trumpeted them to conservative Republicans whose support for his compromise bill he sought to win.Footnote ¹⁰⁸

Whereas Republicans' evisceration of the EEOC has been widely recognized, the private alternative proffered by the Dirksen compromise is either ignored or receives only passing mention, with its significance unrecognized in contemporary treatments of Title VII's legislative history. This was the critical moment in which the foundation was laid for an approach to enforcing job discrimination laws totally dominated by private litigation—one that would, in time, produce more federal lawsuits than any other issue in the federal system, save for prisoners petitioning to be set free. What Dirksen took away in governmental enforcement power he gave back in private enforcement power. Under the amendments to Title VII introduced by Dirksen in the Senate, if the EEOC were unable to facilitate a voluntary settlement, the person claiming discrimination would have a right, regardless of the EEOC's assessment of the merits of the case, and without the need for authorization by a Commission member, to proceed with a private lawsuit in federal district court after the agency processes the claim.Footnote ¹⁰⁹ The lawsuit would be de novo—meaning a completely fresh proceeding, as distinguished from appellate review—with no presumptions in favor of or deference to the agency determination. Further, the court was granted authority to waive filing fees and appoint an attorney for plaintiffs and to award winning plaintiffs attorney's fees and other costs of suit to be paid by defendants.Footnote ¹¹⁰ The amendments to Title VII's enforcement regime introduced by Dirksen were ultimately adopted, and their exact language was retained in the law as passed.Footnote ¹¹¹

It bears emphasis that these provisions regarding appointment of counsel, filing fees, and attorney's fees are departures from the default rules in the American legal system that would control if Congress did not specifically override them. In federal civil actions, absent an explicit statutory directive, counsel is appointed only in “exceptional circumstances,” which in practice has meant almost never.Footnote ¹¹² Likewise, unless Congress specifies in a statute that a winning plaintiff can recover attorney's fees from the defendant, the “American rule” applies and each side is generally responsible for its own attorney's fees, regardless of case outcome. When Congress has wished to proactively facilitate private enforcement of statutes, it has developed a practice of including a provision expressly overriding the American rule and allowing winning plaintiffs to recover attorney's fees.Footnote ¹¹³ This practice was not new in 1964. It was inaugurated in federal statutory law with the Civil Rights Act 1870 and was used in landmark regulatory laws in the Progressive and the New Deal eras.Footnote ¹¹⁴ Economic damages under Title VII were limited to back pay,Footnote ¹¹⁵ which could be quite insubstantial and easily less than the costs of prosecuting an action, especially for workers in low-wage labor pools. Accordingly, the appointment of counsel and attorney fee provisions would facilitate the litigation of claims that, under default rules, would have produced a net loss, even to winning plaintiffs.

Why were these provisions included in the amendments introduced by Dirksen? The evidence is indirect, but quite strong. Civil rights groups were concerned about lack of enforcement through private lawsuits in court, and they advocated for provisions to encourage it. Earlier in the legislative process, the NAACP, the ACLU, and the National Lawyers Guild had successfully urged the inclusion of a fee-shifting provision in the public accommodations title of the Kennedy administration's original bill.Footnote ¹¹⁶ According to the NAACP Legal Defense Fund (LDF) Director-Counsel Jack Greenberg, by 1963–64, whereas the first preference of civil rights groups was for strong administrative enforcement of civil rights, if private litigation was the best they could do, “we always supported counsel fees for prevailing plaintiffs as the only way to make private enforcement feasible. Otherwise, virtually no lawyers could undertake difficult time-consuming cases.”Footnote ¹¹⁷

Indeed, recall that it was the meagerness of private enforcement of Reconstruction civil rights laws with private rights of action, but without provisions providing for recovery of attorney's fees or appointment of counsel, that had motivated the urgent but unsuccessful push by civil rights advocates in 1957 and 1960 to empower the Attorney General to bring civil actions to enforce those laws. The potential under-enforcement problem with Title VII was even greater than under Reconstruction civil rights laws, because those laws allowed recovery of more extensive economic damages than permitted under Title VII's back pay-only rule.Footnote ¹¹⁸ Civil rights advocates clearly recognized major economic impediments to private civil rights enforcement. They worried that many potential plaintiffs were poor and thus unable to pay the costs of litigation; the costs of prosecution often exceeded small and uncertain damages in civil rights cases, so attorneys would not litigate them on a contingency basis; and in many parts of the south there were no attorneys willing to take civil rights cases.Footnote ¹¹⁹

According to David Filvaroff, a Justice Department lawyer who participated in negotiating and drafting the details of the Dirksen compromise on behalf of the Department, the Civil Rights Division's leadership “thought the fee provision was very important.”Footnote ¹²⁰ Justice Department lawyers negotiating with Dirksen and his staff were regularly apprised of civil rights groups' views on the issues under consideration, and they understood that fee recovery could provide a very important benefit to would-be plaintiffs lacking the resources to pay an attorney.Footnote ¹²¹ High level Justice Department lawyers like Burke Marshall and Nicholas deB. Katzenbach, and Democratic leaders such as Hubert Humphrey, were also concerned that any compromise bill retain the support of civil rights groups. They were acutely sensitive to the prospect of being accused in a press conference by NAACP's lead lobbyist Clarence Mitchell, or Leadership Conference General Counsel Joseph Rauh, of having caved in to pressures from Dirksen to gut the bill.Footnote ¹²² If they were to trade pubic enforcement for private enforcement to secure Dirksen's help in overcoming the southern Democratic filibuster, then the private enforcement framework had to be made meaningful.

Democratic Senate floor manager Hubert Humphrey, advocating in favor of the fee shifting and appointment of counsel provisions, was the only legislator to explain in the record why they were included in the law. Humphrey was well positioned to know: of Democratic Party leaders who participated in negotiating the compromise with Dirksen, he was among those in most regular communication with both Dirksen and civil rights groups as the process developed.Footnote ¹²³ For a decade and a half Humphrey had been a primary proponent of civil rights legislation among members of Congress and had worked closely with civil rights groups in crafting civil rights bills and pressing them in the legislative process.Footnote ¹²⁴ As a result, he had strong and long-standing relationships with Mitchell and Rauh, and he worked closely with both, meeting with them frequently as the legislative battle transpired.Footnote ¹²⁵

According to Humphrey, the provisions in the Title VII amendments introduced by Dirksen regarding appointment of counsel and waiver of the filing fee were included because “it is recognized that the maintenance of a suit may impose a great burden on a poor individual complainant”;Footnote ¹²⁶ the attorney's fees provision “should make it easier for a plaintiff of limited means to bring a meritorious suit”;Footnote ¹²⁷ and the appointment of counsel provision was also included “because Negroes in some areas are unable to obtain legal representation to institute civil rights suits.”Footnote ¹²⁸ These explanations given by Humphrey are straightforwardly responsive to the reasons previously identified by civil rights leaders—important Humphrey constituents, with whom he was in close contact—for the dearth of private civil actions, despite widespread discrimination, under Reconstruction and state civil rights laws. Dirksen, in negotiating agreement to a predominantly private enforcement framework as an alternative to strong governmental enforcement powers—thereby stripping the law of all federal authority to initiate enforcement in ordinary individual discrimination claims—agreed to address the well-known impediments to private civil rights enforcement and thus included the attorney's fees and appointment of counsel provisions desired by civil rights advocates.

Dirksen was not oblivious to the possible problem of lawsuits for his business constituents. He included two provisions in his amendments that were calculated to limit the use of the private right of action that he created, though it is doubtful that either was very effective. First, the amendments introduced by Dirksen specified that only aggrieved claimants, and not third parties such as the NAACP—the most prominent civil rights litigator in the United States—would have standing to initiate claims, and his goal with this provision was to contain the volume of litigation.Footnote ¹²⁹ The amendment overrode language in the House-passed version of Title VII, which had allowed groups to initiate claims “on behalf of” an employee.Footnote ¹³⁰ However, this provision had no bearing upon the ability of a third party, such as the NAACP, to serve as counsel to an individual claimant, which, as discussed below, would be a frequent occurrence in Title VII's early years. Second, Dirksen's amendments required that before a person could initiate a claim with the EEOC, he or she would be required to exhaust administrative remedies available under state fair employment practice laws, though they would generally be free to exit state systems for the federal process sixty days after initiating a state claim.Footnote ¹³¹ Although this provision would delay plaintiffs in states with fair employment practice procedures in pursuing their federal claims, it was only mandatory for two months, and once a claimant initiated the federal process, there would be no deference owed to state administrative determinations.

That public enforcement powers had been traded for private litigation in the Dirksen compromise, and that the details of Title VII's private enforcement regime were a critical part of the bargain, was well understood by observers and legislators. One contemporaneous commentator characterized the provisions regarding appointment of counsel and attorney's fees as “the price that had to be paid to secure bipartisan agreement on striking out the power of the EEOC to enforce Title VII by court action.”Footnote ¹³² Another explained that “[t]he system of individual enforcement was the result of a conscious, explicit rejection of a system of administrative enforcement.”Footnote ¹³³ Humphrey characterized the transfer of authority to bring suit from the commission to the individual claimant, and the allowance of appointment of counsel and recovery of attorney's fees, as “the most significant change … in Title VII” to occur in the Senate,Footnote ¹³⁴ a sentiment echoed by Republican Leverett Saltonstall (R-MA).Footnote ¹³⁵

Voting Alignments and Rollcalls on Private Enforcement

There were rollcalls on numerous dimensions of the CRA of 1964's private enforcement provisions, demonstrating that legislators regarded the details of these provisions, such as rules governing fee shifting and appointment of counsel, to be extremely important. Such details were the focus of intense scrutiny, deliberation, and conflict among lawmakers. Saltonstall remarked, concerning the task of nailing down the details of the private right of action in Title VII in the ultimate compromise, “We struggled over this section for a long time.”Footnote ¹³⁶ The public accommodations title in the original Senate version of the bill (S. 1732), considered in the Commerce Committee, had contained an attorney's fee-shifting provision, which, according to Strom Thurmond, the committee deleted “after much careful deliberation.”Footnote ¹³⁷

When faced with the same fee-shifting provision in the House-passed version of the public accommodations title that made it to the Senate floor (Title II), Thurmond offered a roll call to strike it out, urging his colleagues to uphold the earlier deal made in the Commerce Committee, but they rejected his pleas and defeated the amendment.Footnote ¹³⁸ The next day, undeterred by this defeat, Senator Sam Ervin (D-NC) offered the same amendment to strike out the fee-shifting provision, warning that it would unleash a stampede of “ambulance chasing” lawyers “chosen and controlled by the NAACP and its subsidiary corporations.”Footnote ¹³⁹ Republican Jack Miller (R-IA) countered that since plaintiffs could recover fees only if they prevailed, “the ambulance chaser—if we wish to use that term—will be on his guard not to go after anything except meritorious cases.” Ervin shot back that “the attorney who had a meritorious case would probably be crushed to death in the rush of attorneys seeking cases regardless of their merits.”Footnote ¹⁴⁰ In support of Ervin's amendment, Senator Bourke Hickenlooper (R-IA), a conservative Republican opponent of the bill, in perhaps the most ominous admonition ever uttered about a fee-shifting provision, offered biblical counsel: “He that passeth by, and meddleth with strife belonging not to him, is like one that taketh a dog by the ears.” Humphrey replied, “That is a partisan remark.”Footnote ¹⁴¹ The roll call was defeated and the fee-shifting provision was retained.Footnote ¹⁴²

In addition to these two roll calls, southerners in the Senate offered an additional six aimed at diminishing private enforcement under Titles II and/or VII: the Thurmond amendment to delete any private right of action under Title VII, substituting criminal prosecutions with attendant proof beyond a reasonable doubt and trial by jury;Footnote ¹⁴³ the Thurmond amendment to delete court authority to appoint counsel under Title VII;Footnote ¹⁴⁴ the Ervin amendment providing that an attorney would have to consent to be appointed under Titles II and VII;Footnote ¹⁴⁵ the Thurmond amendment to delete any private right to sue under Title II, substituting criminal prosecutions;Footnote ¹⁴⁶ the Long amendment to stipulate that an individual may recover attorney's fees under Title II only on a “showing of good cause”;Footnote ¹⁴⁷ and the Thurmond amendment requiring exhaustion of all administrative remedies before commencing private litigation under Title II.Footnote ¹⁴⁸ Southerners offered two more amendments aimed at giving the very same benefits to civil rights defendants that they sought to take away from civil rights plaintiffs: the Stennis amendment to authorize the court to appoint counsel and award attorney's fees for a defendant sued by the Attorney General under any part of the act, including Title VII;Footnote ¹⁴⁹ and the Thurmond amendment to allow the court to appoint an attorney for defendants under Title II.Footnote ¹⁵⁰

All eight roll calls to limit private enforcement were defeated, as were the two to aid civil rights defendants. Legislators from the eleven former confederate states voted in the roll calls to restrict enforcement by private plaintiffs at a rate of 91 percent, whereas Democrats outside the South voted against restricting enforcement by private plaintiffs at a rate of 98 percent, and Republicans outside the south (all but one) voted against at a rate of 79 percent. A bivariate logistic regression indicates that the odds of voting in support of private enforcement incentives were ninety-two times larger among legislators who voted in favor of the Act as compared to legislators who voted against it. These roll calls show that legislators were abundantly aware of the details of Title VII's private enforcement provisions. Lawmakers opposed to the law sought to minimize their litigant-mobilizing effect, and non-southern Democrats and Republicans who supported the law voted together to sustain the details of the private enforcement regime—a cornerstone of the Dirksen compromise—against southern attack.

Private Enforcement as Compromise

The Dirksen compromise on Title VII enforcement was exactly that. Although southerners and the most conservative Republicans warned of “ambulance-chasing” lawyers “chosen and controlled by the NAACP,” devoted civil rights advocates were also disappointed by the settlement. They denounced the evisceration of the EEOC and regarded the civil action provisions as clearly weaker than the administrative cease-and-desist powers they actually thought necessary, worrying that potential civil rights plaintiffs, often poor and vulnerable to retaliation, would not be in a position to take on American business in the courtroom.Footnote ¹⁵¹ Richard Berg, who worked in the Office of Legal Counsel in the Kennedy Justice Department when the deal was struck and then became Deputy General Counsel of the EEOC shortly afterward, expressed liberals' low expectations of the effects of the law after it was passed, but before it came into effect:

The Leadership Conference concluded, no doubt in exaggerated rhetoric, that the changes in Title VII's enforcement provisions in the Dirksen compromise rendered it “virtually meaningless.”Footnote ¹⁵³ Writing in 1966, law professor and civil rights advocate Michael Sovern agreed, remarking that “[l]etting the complainant sue was one of the original models of anti-discrimination enforcement … and it has never worked.”Footnote ¹⁵⁴

Between southern fears and liberal disappointment, it is important to stress that the enforcement provisions of Title VII were meaningful and important. They embodied a compromise on enforcement, not an abdication. With respect to Title VII, the Attorney General received some, though not all, of the type of enforcement powers long sought by civil rights groups and defeated in 1957 and 1960. However, the lion's share of enforcement responsibility would lie with private litigants. In light of the well-recognized scarcity of private enforcement of existing civil rights laws with private rights of action, the compromise, to succeed, had to go beyond merely allowing aggrieved individuals to sue. It had to overcome a key obstacle to private enforcement—the difficulty of retaining and paying counsel—and thereby encourage meritorious actions. The compromise sought to address this issue and facilitate litigation, as compared with existing civil rights laws, which merely allowed it, with its provisions concerning appointment of counsel and attorney's fees awards. To be sure, the effects of this compromise were uncertain.

Pivotal conservative Republicans, empowered by a profoundly divided Democratic Party and the filibuster in the Senate, authored the compromise. Natively circumspect toward bureaucratic regulation of business in general, and acutely fearful, with ample historical precedent, that they would not be able to control an NLRB-style civil rights agency in the hands of their ideological adversaries, they would not countenance H.R. 405's EEOC. At the same time, given the explosive salience of civil rights in the electoral environment of 1963–64, they had to offer a meaningful alternative. Attempting to steer a middle course, House Republicans judicialized the enforcements venue, striking Title VII's cease-and-desist powers, substituting an EEOC right to sue in federal court, and introducing for the first time the prospect of private enforcement suits, though only with agency permission and without any effort to surmount longstanding and well-recognized economic obstacles to private civil rights litigation. Conservative Republicans in the Senate then largely privatized the prosecutorial function. They stripped the EEOC of the obligation to sue in meritorious cases in which conciliation failed, instead conferring upon the Justice Department, a weaker organ of administrative power, the discretionary right to initiate suit, but even then only in the limited pattern or practice context. There would be no governmental authority to initiate enforcement of ordinary individual claims under Title VII. In exchange for these reductions in executive enforcement power, the Dirksen compromise created an unconditional private right of action under Title VII, including the appointment of counsel and attorney's fees provisions, which were clearly calculated to address the economic impediments already inhibiting private enforcement of Reconstruction civil rights laws. In sum, pivotal conservative Republicans, whose support for civil rights legislation could not be expected unconditionally, wielded their veto powers to beat back bureaucratic state building by liberal civil rights advocates, substituting private enforcement litigation in its stead.

This legislative move would have profound long-run consequences for the implementation of job discrimination laws under Title VII and beyond. As new forms of job discrimination were prohibited under federal law, Congress, not surprisingly, simply inserted the new prohibitions into the existing enforcement model founded upon private litigation. The Age Discrimination in Employment Act of 1967 followed the enforcement model of private litigation with no administrative cease-and-desist powers. The Rehabilitation Act of 1973, prohibiting employment discrimination based upon disability by the federal government and federal contractors, and the Americans with Disabilities Act of 1990, prohibiting employment discrimination based upon disability in the private sector and by states, simply incorporated Title VII's enforcement provisions by reference. Thirty years on, this job discrimination enforcement framework would produce more non-prisoner civil litigation in the federal system than any other.

Interest Groups on the Scene

A final note is in order about the interest group presence in the halls of Congress during the legislative struggle over the CRA of 1964. It provides an interesting point of contrast with later lawmaking episodes addressing civil rights enforcement. A massive interest group effort lay behind the watershed legislation. A Congressional Quarterly Weekly Report article titled “Intensive Lobbying Marked House Civil Rights Debate,” observed that the CRA of 1964 “was the subject of some of the most intensive and effective behind-the-scenes lobbying in modern legislative history,” and provided an inventory of all organizations that lobbied for the bill.Footnote ¹⁵⁵ The fourty-four organizations listed as lobbying in favor of the 1964 act were predominantly civil rights groups, labor organizations, and church groups. Only a single lawyers' association—the American Bar Association (ABA)—is listed, though it must be acknowledged that the ABA was surely the most powerful lawyers' association in the United States. The non-governmental witnesses to appear in the hearings before Subcommittee No. 5 were likewise dominated by civil rights and other issue groups, labor organizations, and religious groups. Of fourty-one non-governmental witnesses invited to testify, none represented lawyers' associations (the ABA was not invited), and only two were from specifically legal advocacy organizations: the American Civil Liberties Union and the Lawyers Committee for Civil Rights Under Law.Footnote ¹⁵⁶ Lawyers' associations were simply not on the scene. This would soon change, as we shall see.

Loss of Faith in Executive Power

The Brookings Institution and the United States Commission on Civil Rights funded a study, conducted in 1967 and 1968, on the state of Title VII enforcement, and in the course of the study leaders of civil rights groups were interviewed and surveyed on their views of the existing enforcement situation.Footnote ¹⁷⁷ Although the EEOC was certainly highly sympathetic toward and cooperative with civil rights groups, particularly the NAACP, in sharing information and developing legal arguments and strategy,Footnote ¹⁷⁸ civil rights groups were gravely concerned that the EEOC was so massively under-funded and under-staffed relative to the task confronting it that it was incapable of adequately processing claims, even with the best of intentions.Footnote ¹⁷⁹ Presidential budget requests were inadequate and actual congressional authorizations were worse, making meaningful investigation and evaluation of claims within a reasonable time period out of the question. According to the study, “[c]ivil rights leaders canvassed by questionnaire … came down hardest on delays in processing complaints,” reporting that years would pass after filing complaints with no contact at all from agency staff, leading from a “first flurry of hope” when complaints were filed to “a feeling of complete hopelessness when the complainants never heard from the EEOC.”Footnote ¹⁸⁰ To civil rights advocates, allowing claimants to exit the administrative process for court if it dragged on too long would provide an “escape from the administrative quagmire” that agency proceedings had become.Footnote ¹⁸¹

Civil rights leaders also objected that, even aside from funding issues, Title VII enforcement was an extremely low executive priority, even within the Johnson administration. This lack of executive commitment was in evidence both at the EEOC and the Department of Justice. Johnson was slow to staff the new agency and left EEOC leadership posts vacant for extended periods.Footnote ¹⁸² The agency's individual case-by-case complaint processing approach was far too conservative, civil rights advocates complained, urging instead that it pursue a more ambitious enforcement vision targeting systemic patterns of discrimination.Footnote ¹⁸³ In Jack Greenberg's estimation, James Roosevelt, the EEOC's first chair, “did little or nothing, either out of torpor or for political reasons.”Footnote ¹⁸⁴ The agency's political timidity caused Greenberg and other civil rights advocates to be concerned that giving up the private right of action for a pure administrative enforcement model could lead to agency capture. Greenberg later wrote that “I have no doubt that if there had been only administrative enforcement, employers and unions would have been all over the EEOC trying to shape what would happen,” and he further observed that the private right of action “kept the EEOC honest because it didn't want to be shown up by private enforcers.”Footnote ¹⁸⁵ Alfred Blumrosen, who was chief of conciliations at the EEOC from 1965 to 1967, worried by 1970 that giving up the private right of action for cease-and-desist would render the EEOC “a captive of those interests which were to be regulated.”Footnote ¹⁸⁶ Testifying in 1967 hearings on Title VII enforcement, Whitney Young, executive director of the National Urban League, summed up civil rights activists' dejection about the agency: “The actual agency experience, which has demonstrated that the Commission cannot enforce compliance, has given rise to disillusionment and lack of confidence.”Footnote ¹⁸⁷

The Justice Department, whose use of its discretionary right to sue in Title VII's early years was meek at best, was not inspiring confidence in executive enforcement among civil rights groups either.Footnote ¹⁸⁸ Testifying in the 1967 congressional hearings on proposed Title VII amendments, Roy Wilkins, executive director of the NAACP, protested against “the extremely selective and limited use” that the Justice Department had made of its right to sue.Footnote ¹⁸⁹ In 1969 hearings on the same subject, Greenberg, echoing his concerns about agency capture, suggested a more jaundiced perspective, noting that when the Justice Department fails to enforce against powerful unions and businesses, “suspicion arises that the Government did not act because some labor union or corporation used its political influence.”Footnote ¹⁹⁰ This, in Greenberg's view, carried over an unfortunate practice from the Kennedy administration under which civil rights groups “had repeatedly seen civil rights enforcement compromised by political considerations.”Footnote ¹⁹¹

Rightward Shift in Executive Enforcement Preferences

Whereas civil rights advocates' disillusionment over executive commitment to vigorous civil rights enforcement took root under the Johnson administration, when Nixon assumed office their relationship with the executive branch worsened markedly. Nixon had deployed his storied “southern strategy” in the 1968 campaign, endeavoring to win over white southern Democrats by convincing them that the Republican party better represented their preferences on a variety of issues, importantly including civil rights.Footnote ¹⁹² While civil rights advocates had been disappointed by the Johnson administration's lackluster performance on civil rights enforcement, they soon came to regard Nixon as affirmatively obstructionist, reinforcing and exacerbating their low expectations for executive enforcement of civil rights laws in general, and of job discrimination laws in particular.Footnote ¹⁹³

Within a few months of Nixon assuming office, conflict over Title VII enforcement erupted between civil rights advocates and the new administration. In March 1969, Senator Dirksen publicly called on the new president to oust Clifford Alexander, the still-serving EEOC chair appointed by Johnson, because of his “harassment” of businesses on the issue of job discrimination, and the White House drew fire from civil rights advocates by announcing the next day that Alexander would be replaced.Footnote ¹⁹⁴ Before he could be, on April 9^th Alexander resigned, attributing his decision to “a crippling lack of Administration support,” and complaining that the Nixon Justice Department refused to prosecute clear violations of Title VII uncovered by Commission hearings and referred to the Department for prosecution.Footnote ¹⁹⁵ In early May, the United States Civil Rights Commission issued public letters attacking as “seriously deficient” the Nixon administration's enforcement of federal laws and regulations prohibiting job discriminating, and accusing it of actually subsidizing discriminatory employment practices by contracting with firms known to discriminate.Footnote ¹⁹⁶ In August, the EEOC chair appointed by Nixon to replace Alexander testified in congressional hearings, consistent with the administration's position, against giving the EEOC cease-and-desist powers (in the hybrid regime discussed above), which had been sought by Johnson, Alexander, non-southern congressional Democrats, and civil rights groups.Footnote ¹⁹⁷ By the first summer of Nixon's presidency, it was unmistakable to civil rights advocates that the executive branch had moved rightward on enforcement of job discrimination laws.

To appreciate the significance of this to the enforcement preferences of civil rights advocates, it bears emphasis that the rightward executive shift on civil rights enforcement went well beyond job discrimination. In July 1969, Nixon came under sharp attack from civil rights leaders, including NAACP executive director Roy Wilkins, for the administration's relaxation of executive pressure on southern states to desegregate public schools, and in particular its disinclination cut off federal funds, as provided for in Title VI of the CRA of 1964, to schools failing to comply with federal anti-segregation mandates.Footnote ¹⁹⁸ In August, Nixon's Justice Department switched sides, relative to the Department's position under Johnson, to oppose NAACP lawyers in a desegregation lawsuit, placing the Department on the opposite side of the NAACP on a major civil rights issue for the first time since the Department began participating in civil rights litigation in the 1950s.Footnote ¹⁹⁹ By 1970, civil rights groups launched a series of impact litigation suits against Nixon's Department of Health, Education and Welfare, alleging that it was failing to enforce civil rights laws prohibiting various forms of discrimination in educational institutions across the country.Footnote ²⁰⁰

Congressional Democrats expressly linked their discontent with the Nixon administration's performance in education civil rights enforcement with the need to mobilize private litigants, following the model of Titles II and VII of the CRA of 1964. Title VII of the Emergency School Aid Act, which was part of the Education Amendments of 1972, provided for attorney's fees for winning plaintiffs in school desegregation cases brought under the Civil Rights Act of 1871.Footnote ²⁰¹ The 1971 Democrat-led Senate Committee Report on the bill stated that the fee shift was necessary because “[t]he federal government is devoting neither the time, effort, nor the financial resources necessary for adequate law enforcement,” and as a result school desegregation “laws are not being enforced throughout the nation.”Footnote ²⁰² Taking a chapter from Dirksen's book, it was now liberal Democrats who distrusted administrative power under Republican executive supervision, and who turned to private lawsuits as an alternative to administrative power.

Litigation Successes and Judicial Hospitality

In contrast with civil rights groups' flagging confidence in executive enforcement, they had a buoyant sense of their own efficacy, through litigation, as enforcers in the domain of job discrimination. Whereas for-profit sector attorneys had shown almost no interest in bringing Title VII claims, by August 1969 the NAACP's LDF had filed more than 70 cases.Footnote ²⁰³ In the 1969 Senate hearings on bills that led to the EEOA of 1972, testifying in favor of the hybrid cease-and-desist/private litigation approach, Greenberg expressed far greater concern for preserving private litigation, the virtues of which were the chief focus of his remarks, than for adding cease-and-desist. Said Greenberg: “[T]hat part of the proposed law which most interests us as a private agency deeply involved in the implementation of Title VII is the section which preserves the right of private parties to file suits on their own behalf.”Footnote ²⁰⁴

In favor of preserving the private right of action, Greenberg pointed to the LDF's “gratifying” successes as the single largest prosecutor of Title VII actions during the law's first five years. If civil rights groups were disappointed in executive performance, they most certainly were not disappointed in federal courts, which by the time of Greenberg's testimony in 1969 had shown a strong proclivity toward expansive, pro-plaintiff interpretations of Title VII, issuing decisions that made civil rights leaders “jubilant.”Footnote ²⁰⁵ With a judiciary clearly to the left of Congress on civil rights, to many it appeared that the federal courts were interpreting Title VII far more liberally than Congress had intended.Footnote ²⁰⁶

Further, 1966 revisions to Rule 23 of the Federal Rules of Civil Procedure widened access to class actions, and courts immediately applied the new rule permissively in Title VII cases.Footnote ²⁰⁷ In individual actions, relief ordered by the court generally only directly benefits specifically named plaintiffs. On the other hand, in class actions named plaintiffs can seek more extensive relief to benefit entire classes of employees, potentially making litigation a more effective tool for institutional reform and spreading the costs of litigation so as to make some types of claims economically feasible that would not otherwise be.Footnote ²⁰⁸ The NAACP's LDF used the class device to great effect in receptive courts.Footnote ²⁰⁹ The Republican vision of courts as bastions of restrained adjudication in which defendants would find shelter, in retrospect, looked more than a little off the mark. Hugh Davis Graham has suggested that this Republican miscalculation may have been a mental relic of conservative battles in the 1940s to contain New Deal administrative state building using judicial power.Footnote ²¹⁰

In urging Congress in the 1969 Senate hearings to retain the private right of action in a hybrid enforcement regime, Greenberg recounted the facts of numerous Title VII cases in which the LDF had secured classes of African American employees broad-based access to employment opportunities previously denied them. They had secured agreement from the A&P store chain in North Carolina and South Carolina to open up previously white-only positions to black workers; in the “much celebrated Newport News Shipbuilding case,” a large Virginia shipbuilding company submitted to a settlement in which “hundreds of Negro workers moved into craft and supervisory positions theretofore barred to them”; the Georgia State Employment Service “agreed to process the applications of Negro job seekers on the same basis as white applicants”; and these were but a few of their successes. In the Newport News Shipbuilding case, the EEOC and the Federal Office of Contract Compliance had investigated the company for years, but “there was no effective movement towards settlement of outstanding claims of racial discrimination,” explained Greenberg, “until after we filed the lawsuit.”Footnote ²¹¹

“The entire history of the development of civil rights law is that private suits have led the way and government enforcement has followed,” Greenberg concluded, and Title VII has and should continue in that tradition.Footnote ²¹² Greenberg spoke not just for the LDF, but for civil rights groups broadly. Joseph Rauh, appearing on behalf of the Leadership Conference and testifying immediately following Greenberg, opened his testimony by stating: “I agree without reservation … [with] Mr. Greenberg's statement.”Footnote ²¹³ Representatives of the NAACP and the National Urban League also testified in favor of the hybrid private litigation/cease-and-desist model.Footnote ²¹⁴ Representatives of the ACLU, too, insisted that to “deprive private parties of the right to seek redress in the Federal Courts for employment discrimination under Title VII … would be extremely detrimental to progress in equal employment.”Footnote ²¹⁵ No civil rights group took a contrary position. It bears emphasis what a different enforcement vision this is as contrasted with the administrative state-centered model embodied in H.R. 405's NLRB for civil rights, the one-time dream of ardent civil rights advocates, including the NAACP, the LDF, and the Leadership Conference. Their enforcement preferences would diverge yet more radically from the New Deal-style administrative vision in the years to come.

This is not to say that civil rights groups had given up on effective bureaucratic implementation, for they continued to press legislators hard but unsuccessfully for EEOC cease-and-desist powers within the hybrid framework into the late 1960s and early 1970s. Whereas some individual civil rights advocates may have rejected the desirability of cease-and-desist authority by this time,Footnote ²¹⁶ representatives of the leading national civil rights organizations—including the Leadership Conference, the NAACP, the LDF, and the National Urban League—uniformly supported giving the EEOC cease-and-desist authority until they were finally defeated in the EEOA of 1972.Footnote ²¹⁷ As already noted, a for-profit bar to prosecute Title VII claims had not materialized, and non-profit interest groups obviously lacked the capacity to prosecute ordinary claims across the nation. Civil rights groups thus wanted to retain the private right of action so as to preserve their ability to carry out the impact litigation campaign, and they wanted administrative cease-and-desist to process the huge number of ordinary claims that interest groups could not litigate.

Although they still supported cease-and-desist, the relative weighting of their preferences regarding administrative implementation versus private litigation had been decisively transformed as compared to 1963–64. They now wanted both and were unwilling to give up private enforcement for cease-and-desist powers. In Title VII's first five years, they had witnessed an agency lacking both the material resources and the political will and commitment to carry out its mission. At the same time, empowered and partly financed (through attorney's fees) by the private enforcement provisions of the Dirksen compromise, civil rights groups found themselves at the leading edge of Title VII enforcement, wielding the weapon of private litigation to make what they judged to be new, meaningful, and gratifying inroads into labor markets previously foreclosed to African Americans. “[W]ith private enforcement we were the captain of our own ship,” explained Greenberg, and “we took initiatives that more cautious government agencies wouldn't.”Footnote ²¹⁸ Civil rights advocates could not, they had now decided, afford to rely solely upon the beneficence of bureaucrats, who themselves were dependent upon the beneficence of elected officials for resources and power, to enforce fair employment practices.

It bears noting that although conservative Republicans were pivotal in rejecting cease-and-desist and retaining a litigation-dominated framework to enforce Title VII, some expressed misgivings that “the class action device enabled [plaintiff–litigants] to enforce it too effectively, by greatly increasing the exposure of employers to liability for back-pay.”Footnote ²¹⁹ The version of the EEOA of 1972 that initially passed the House in that year, sponsored by Republican Congressman John Erlenborn (R-IL), contained a provision specifically excluding Title VII plaintiffs from the right to file class actions under Rule 23 of the Federal Rules of Civil Procedure, which had proven so valuable to plaintiffs in Title VII litigation. The Senate version of the bill lacked such a provision, and in conference committee the House's class action exclusion for Title VII cases was dropped.Footnote ²²⁰ This episode reflects that, whereas antiregulation Republicans still preferred litigation over bureaucracy as the central implementation vehicle, some of their business constituents, like some important labor unions, were most definitely feeling its effects.

The ultimate solution to the EEOC's weakness, which was adopted in the EEOA of 1972—giving the agency the power to prosecute actions in court—appears ironic when viewed from the vantage point of 1964. Stripping the agency of prosecutorial powers was the prize that Dirksen secured in the 1964 compromise; the price he paid was to create Title VII's private enforcement regime, which would become, unbeknownst to him at the time, the single largest source of non-prisoner litigation in the federal system. In the EEOA of 1972, the EEOC got back the power that Dirksen had taken away from it, and Title VII's private enforcement provisions, fiercely defended by civil rights groups, stayed in the law. It appears that if Dirksen had simply accepted the House-passed enforcement provisions—EEOC-prosecutorial powers, private actions only with agency permission, and no attorney fee recovery—the long-run outcome may have been a far weaker enforcement regime. I return to this issue in the conclusion.

Growth and Mobilization of the Civil Rights Bar

Political scientists have emphasized how, as Paul Pierson put it, the enactment of policies “create[s] resources and incentives that influence the formation and activity of social groups … [and] create[s] ‘spoils’ that provide a strong motivation for beneficiaries to mobilize in favor of programmatic maintenance or expansion.”Footnote ²⁴³ Attorney's fees awards contributed resources to existing civil rights groups that prosecuted lawsuits under the new civil rights laws, such as the LDF and the Lawyers' Committee for Civil Rights Under Law (Lawyers' Committee), adding to their enforcement capacity.Footnote ²⁴⁴ The class action cases that these groups often litigated could lead to greater attorney's fees awards than individual claims.Footnote ²⁴⁵ By 1973, the Lawyers' Committee was devoting half of its staff to its job discrimination litigation unit, which had become nearly self-supporting due to attorney fee awards.Footnote ²⁴⁶ By 1975, $550,000 of the LDF's three million dollar operating budget (over 18 percent) came from attorney fee awards.Footnote ²⁴⁷ Moreover, the availability of fee awards also contributed to the formation of significant new enforcement groups, with foundation seed money, such as the Native American Rights Fund in 1970 and the Women's Law Fund in 1972, both still in existence today, on the expectation that they would be able to draw continuing operating funds from attorney's fees awards.Footnote ²⁴⁸ The Lawyers' Committee formed an Attorney's Fees Project in the early 1970s for the purpose of compiling and disseminating to civil rights litigators information on developing case law governing fee awards, seeking to aid attorneys in recovering fees and to move the law in a direction favorable to fee awards.Footnote ²⁴⁹

In addition to increasing enforcement resources available to civil rights groups, and more important, the private enforcement regimes of the CRA of 1964 (substantially replicated in the civil rights private enforcement regimes of the Age Discrimination in Employment Act of 1967, the FHA of 1968, the Emergency School Aid Act of 1972, and the Rehabilitation Act of 1973) had the feedback effect of fostering the growth of a private bar to litigate civil rights claims in general and job discrimination claims in particular. By the early 1970s, it appeared that the initial impression that Title VII would not generate much private litigation was premature. From the modest 56 private suits filed in Title VII's first two years,Footnote ²⁵⁰ the number climbed approximately to 100 in 1968,Footnote ²⁵¹ to 429 in 1970, to 1,802 in 1973, and to 4,002 in 1975, where it roughly plateaued (ranging between 3,986 and 4,584) for the balance of the decade.Footnote ²⁵² There seems to have been a lag of about five years before plaintiffs' lawyers began to practice in this new and unknown area of law, but once they did, the growth in Title VII filings during the first half of the 1970s was dramatic, exploding by a factor of nearly ten between 1970 and 1975.Footnote ²⁵³ Moreover, contrary to fears among some civil right advocates that such private enforcement litigation would be rare in the South, where most needed, due to unique obstacles there, it was actually disproportionately concentrated in the South. Although the eleven former confederate states represented about 26 percent of the United States population in 1975, 37 percent of federal job discrimination lawsuits were filed there.Footnote ²⁵⁴

Immediately following passage of the CRAFAA of 1976, which she testified in support of before Congress, Mary Derfner, then Director of the Lawyers' Committee's Attorney's Fees Project, observed that during the first half of the 1970s, fee-shifting provisions in recent civil rights laws helped “public interest laws firms burgeon,” and that “[p]rivate practitioners and individual members of smaller commercial law firms began to undertake civil rights cases in addition to their other work.”Footnote ²⁵⁵ “Fee awards,” observed Derfner, “made civil rights law a financially viable practice.”Footnote ²⁵⁶ Title VII's fee provision in particular, explained another Lawyers' Committee attorney to testify in favor of the CRAFAA, had “led to the development of a highly skilled group of specialist lawyers” to enforce it.Footnote ²⁵⁷ A 1977 report of the Ford Foundation on civil rights litigation observed that “[u]ntil at least the mid-1960s the NAACP Legal Defense and Education Fund stood almost alone” as a prosecutor of civil rights suits, but by the mid-1970s “fee-generating private practice has in many areas of the South enabled an indigenous bar, engaged in litigating cases of racial discrimination, to survive.”Footnote ²⁵⁸ In the same vein, an April 1976 Washington Post article titled “Civil Rights Turns to Gold Lode for Southern Lawyers” declared: “The lure of legal fees, paid by the loser, is fertilizing a whole new practice in civil rights disputes… . Congress intended it that way in passing laws specifying that legal fees be awarded in such cases.”Footnote ²⁵⁹ Although ascertaining what “Congress intended” is often complex and elusive, it seems more than a little doubtful that Senator Everett Dirksen intended to create a bar of lawyers who would earn their living suing employers, at the expense of employers.

It should be noted that these commentators are focused on fee-shifting provisions and not appointment of counsel. Title VII's appointment of counsel provision, although controversial when enacted, proved to be a dog that didn't bark. Congress never appropriated funds to pay appointed counsel and cover the extensive outlay of costs that often attend litigation, and courts proved unwilling to make compulsory appointments, which would entail requiring attorneys to provide free legal services and bear litigation costs.Footnote ²⁶⁰ One Alabama district judge concluded, more than a little ironically, that Title VII's provision authorizing appointment of counsel, apparently without compensation, violated the Thirteenth Amendment's prohibition of involuntary servitude.Footnote ²⁶¹ Courts would only seek to coordinate voluntary free representation, which had obvious limits. The fee-shifting provision, on the other hand, operating as a source of funding for civil rights litigation independent of Congressional budget allocations, was proving to be a reliable mechanism through which civil rights counsel would be paid if the plaintiff prevailed.

The burgeoning civil rights bar—both non-profit and for-profit—fertilized by private rights of action coupled with fee-shifting rules in the new civil rights laws, sought to extend the CRA of 1964's fee-shifting approach to cover all existing civil rights laws that allowed private enforcement but did not provide for fee recovery. The motivations of civil rights groups, according to Armand Derfner, then an attorney at the Lawyers' Committee who helped to lead the campaign, were threefold. It would provide much-needed funds to support enforcement among civil rights groups and for-profit lawyers already litigating civil rights cases on shoestring budgets; it would attract new lawyers to civil rights practice, helping to grow the civil rights bar; and it would add a punishing economic sanction, which would operate as a deterrent on would-be violators, in cases that otherwise involved little or no economic penalty.Footnote ²⁶² In the early to mid-1970s, the civil rights bar pursued its goal of across-the-board fee shifting in civil rights cases on both judicial and legislative tracks.

Based explicitly on the precedent of the 1964 Act, civil rights lawyers pressed courts to infer the availability of attorney's fees under civil rights statutes lacking fee-shifting provisions, including the CRAs of 1866 and 1871, under which job discrimination claims could be asserted.Footnote ²⁶³ Although this court-based campaign met with some success in the early 1970s,Footnote ²⁶⁴ it was shut down in 1975 by the Supreme Court in Alyeska Pipeline Service Co. v. Wilderness Society,Footnote ²⁶⁵ where the Court held that any departures from the American rule on fees would have to take the form of an explicit statutory directive from Congress. During the same period, civil rights groups, led by NAACP lead lobbyist Clarence Mitchell, lobbied Democrats in Congress to statutorily extend the CRA of 1964's fee-shifting provision to other civil rights laws lacking one.Footnote ²⁶⁶ The Senate Judiciary Committee examined the issue in hearings in 1973 but failed to act,Footnote ²⁶⁷ and in response to the Alyeska decision it held additional hearings in 1975Footnote ²⁶⁸ that would ultimately lead to passage of the CRAFAA of 1976.

Lessons Learned About Fee Shifting

Self-reinforcing policy feedback effects from the CRA of 1964, in addition to and in conjunction with the feedback effects that increased demand for civil rights fee shifting by fostering the growth of the civil rights bar and its dependence on fee awards, also operated through the mechanism of policy learning. Recall that when the Dirksen compromise was struck, liberal civil rights advocates were disappointed at the loss of an administrative framework partly because they were concerned that the fee-shifting provision would not overcome impediments to private enforcement litigation in the job discrimination context and thus would not generate a sufficient volume of suits to meet day-to-day enforcement requirements. Immediately following Title VII's passage, for example, Richard Berg, a civil rights proponent high in the Kennedy Justice Department and soon to be EEOC General Counsel, warned that private litigation was fundamentally limited as an enforcement strategy. Because litigation was exceedingly costly and time-consuming, and the pool of potential plaintiffs was poor, vulnerable to retaliation, and facing an adversary with far more material and legal resources, said Berg, “even where the evidence of discrimination is overwhelming, it cannot be expected that many complainants will undertake the burden of an individual suit.” Thus, he continued, “it seems questionable that much can be accomplished through suits in federal court by persons aggrieved by acts of discrimination.”Footnote ²⁶⁹ This view was shared by the Leadership Conference, the NAACP, the LDF, and the civil rights community broadly.Footnote ²⁷⁰ Of course, civil rights advocates were well aware of civil rights groups' capacity to shape the law through impact litigation, as the NAACP had in the momentous Brown decision, but they clearly lacked the resources to provide day-to-day enforcement of ordinary claims across the nation.

This concern, widely shared among civil rights activists, was not unfounded. In 1963, the year in which Title VII was introduced, there had been only 424 private civil rights enforcement actions across the country, under all federal civil rights statutes that allowed (or had been interpreted to allow) private enforcement, including the CRAs of 1866, 1870, 1871, 1957, and 1960, and under state civil rights laws brought in federal court via pendant or diversity jurisdiction.Footnote ²⁷¹ The lion's share of these were brought under the Civil Rights Act of 1871's sweeping cause of action for the violation of any federal right by a state actor. By 1975, as we have seen, there were about ten times that number (4,002) of job discrimination suits alone. Title VII's private enforcement regime had succeeded in generating levels of private civil rights enforcement unprecedented in American history. The genesis and growth of the private civil rights bar, in addition to creating demand to expand fee shifting across the entire field of civil rights, also stood as evidence, weighing against initial skepticism among civil rights advocates as to the efficacy of fee shifting as a mechanism for generating a significant volume of private enforcement.

Legislators, like the civil rights activists and commentators discussed above, after witnessing the historically unprecedented levels of private civil rights enforcement under Title VII of the CRA of 1964, concluded that fee shifting had proven decisive in mobilizing the private civil rights enforcers. According to the Senate Report for the CRAFAA of 1976: “In 1964, seeking to assure full compliance with the Civil Rights Act of that year, we authorized fee shifting for private suits establishing violations of the public accommodations and equal employment provisions … [and] [t]hese fee shifting provisions have been successful in enabling vigorous enforcement of modern civil rights legislation.”Footnote ²⁷² This policy-learning account was repeated time and again in floor statements. Senate Republican minority leader Hugh Scott (R-PA) stated that, based upon experience with Title VII, “[a]ttorney's fees have proven to be a singularly effective and flexible way to encourage private enforcement of public rights.”Footnote ²⁷³ Democratic Senator John Tunney (D-CA), who sponsored the bill, remarked that “[a]ttorneys' fees have proved one extremely effective way to provide … equal legal resources” in civil rights cases.Footnote ²⁷⁴ Democratic Senator James Abourezk (D-SD) observed that “[t]he fee-shifting mechanism has proved a particularly equitable and efficient means of enforcing the [civil rights] laws by enlisting private citizens as law enforcement officials.”Footnote ²⁷⁵

The characterizations of fee shifting as “singularly flexible” and “particularly efficient” are meant in comparison to bureaucracy, a comparison that was an important theme in the debate. There was widespread agreement that the state lacked the capacity to adequately enforce the civil rights laws in question. According to the Senate Report, private enforcement of these laws was necessary, because “[a]lthough some agencies of the United States have civil rights responsibilities, their authority and resources are limited.”Footnote ²⁷⁶ “Long experience has demonstrated,” Senator Edward Kennedy (D-MA) counseled, “that government enforcement alone cannot accomplish … ” enforcement goals,Footnote ²⁷⁷ a view echoed by sponsor Tunney, who observed that “[a]lthough some of these laws can be enforced by the Justice Department or other Federal agencies, most of the responsibility for enforcement has to rest upon private citizens.”Footnote ²⁷⁸ The reason was simple: money. “The Justice Department does not have the resources to bring suit for every civil rights violation,” explained Representative Elizabeth Holtzman (D-NY).Footnote ²⁷⁹ “The Government obviously does not have the resources to investigate all possible violations of the Constitution,” concurred Representative John Seiberling (D-OH), “so a great burden falls directly on the victims to enforce their own rights.”Footnote ²⁸⁰ Although it may have been obvious, as Seiberling suggests, that the government had not dedicated significant resources to enforcing the civil rights laws in question, it was actually not at all obvious that it was incapable of extracting and deploying those resources, particularly if one considered the possibility of far less costly administrative implementation.

Rather, legislators found fee shifting to be a more attractive alternative. Fee shifting represented a way of overcoming weak state capacity without engaging in conventional forms of state building. As the Senate Report put it, fee shifting provided for enforcement “while at the same time limiting the growth of the enforcement bureaucracy.”Footnote ²⁸¹ This had been a key part of Dirksen's motivation, and it continued to appeal to many Republicans. Successfully mobilizing private litigants, explained Hugh Scott, who succeeded Dirksen as Senate minority leader, “would make the civil rights laws almost self-enforcing, … would cost the government nothing,” and would advance civil rights enforcement “without an increase … in the bureaucracy.”Footnote ²⁸² In the same vein, Senator Charles McCurdy Mathias (R-MD), speaking in favor of passing the act, cited a Congressional Budget Office finding that the law would produce “no additional costs to the government.”Footnote ²⁸³ In viewing fee shifting as a source of costless and bureaucracy-free enforcement, Democrats joined Republicans. “Fee shifting provides a mechanism which can give full effect to our civil rights laws,” explained Senator Kennedy, “at no added cost to Government.”Footnote ²⁸⁴ “The fee-shifting mechanism,” agreed Senator Abourezk, “increases law enforcement without increasing the Federal budget or bureaucracy.”Footnote ²⁸⁵ Although there is no evidence that budget concerns were an important cause of the private enforcement settlement of 1964, it emerged as a justification for spreading fee shifting across the field of civil rights by the mid 1970s—a justification that braided naturally with antibureaucracy sentiments.

Voting Alignments and Rollcalls on Private Enforcement

The only dissenting voices among those who spoke on the floor of Congress were a few southerners. Senator James Allen (D-AL) led a seven-day filibuster. His principle argument against the bill was that it was “stirring up litigation” and was a “bonanza for the legal profession … [that has] grown fat on litigation of this sort.”Footnote ²⁸⁶ Senator Jesse Helms (R-NC) also urged his colleagues to vote against the bill. Relying upon statistical data from the federal court system, he complained that civil rights litigation in general, and job discrimination litigation in particular, had swelled to comprise an excessively large share of the federal court caseload, which he urged should not be increased even further with the proposed CRAFAA of 1976.Footnote ²⁸⁷

Notwithstanding Allen's and Helm's objections, partisan and sectional divisions over the CRAFAA of 1976, which actually commanded a majority of southern votes, were muted relative to the partisan rancor that would infuse debates over civil rights litigation in the 1980s. The voting alignments looked much like they had in the roll calls on the private enforcement provisions in the CRA of 1964, with the exception that southern opposition was greatly mitigated. In addition to the House and Senate rollcalls on passage of the CRAFAA of 1976,Footnote ²⁸⁸ there were seven rollcalls on amendments offered to reduce the private litigant-mobilizing effects of the law (all of which were offered by southerners);Footnote ²⁸⁹ three to retrospectively reduce the litigant-mobilizing effects of existing civil rights laws (all offered by southerners);Footnote ²⁹⁰ and one to expand the scope of the CRAFAA's application (offered by Senator Edward Kennedy).Footnote ²⁹¹ All proposed amendments to reduce litigant mobilization under the CRAFAA of 1976 were defeated. The roll calls—many quite similar to ones unsuccessfully offered by southerners in the Senate in 1964—show that, as with debates over enforcement of the CRA of 1964, the FHA of 1968, and proposed amendments to Title VII leading to the EEOA of 1972, the use of statutory provisions calculated to mobilize private enforcement litigation was neither unreflectively routine nor uncontested. It was a self-conscious choice, motivated by policy goals and subjected to intense scrutiny and contestation in the legislative process.

Aggregating together all votes cast on the CRAFAA of 1976 and proposed amendments to it across both chambers, non-southern Democrats voted in a direction favorable to mobilizing private litigants at a rate of 97 percent, non-southern Republicans did so at a rate of 68 percent, and representatives from the former confederacy did so at a rate of 40 percent. On passage of the CRAFAA of 1976, non-southern Democrats voted in favor at a rate of 96 percent, non-southern Republicans did so at a rate of 73 percent, and legislators from the former confederacy did so at a rate of 54 percent (a majority of southerners in both chambers). In the 1976 legislative proceedings in the Senate, southerners offered two amendments to the CRAFAA of 1976 to retrospectively amend Titles II and VII of the CRA of 1964 to limit plaintiffs' ability to recover attorney's fees and to provide for mandatory fee awards for winning defendants, giving legislators an opportunity to revisit some dimensions of the 1964 fee-shifting provisions to make them less favorable to plaintiffs. Southerners voted in favor of these changes to the CRA of 1964 at a rate of 60 percent, whereas non-southern Democrats voted against them at a rate of 100 percent, and non-southern Republicans voted against them at a rate of 72 percent.Footnote ²⁹² The CRAFAA of 1976, extending the CRA of 1964's fee-shifting language to all other existing civil rights law that allowed private enforcement but lacked a fee-shifting provision, passed overwhelmingly, by a vote of 306 to 68 in the House and 57 to 15 in the Senate.Footnote ²⁹³ Although civil rights groups and liberal Democrats in Congress were unquestionably the impetus behind getting the bill on the agenda, it encountered little opposition outside the South and passed easily.

Interest Groups on the Scene

There was a marked shift in the composition of witness profiles in committee hearings seeking to influence the civil rights attorney fee legislation as compared to those in the hearings held on the CRA of 1964. Although legal advocacy groups and lawyers' associations were a trivially small number of witnesses in the 1964 hearings, in the hearings that led to passage of the CRAFAA of 1976 they were by far the largest presence. In the 1973 and 1975 Senate hearings combined, of forty non-governmental witnesses to appear, eleven represented legal advocacy groups (e.g. the Lawyers' Committee for Civil Rights Under Law), seven represented lawyers' associations (e.g. the American Bar Association and state bar associations), ten testified as practicing attorneys with expert knowledge, one was a law professor, and two were law students.Footnote ²⁹⁴ Seventy-seven percent of the non-governmental witnesses represented legal advocacy groups, lawyers' associations, the legal profession, and the legal academy.

It is abundantly clear that the CRA of 1964 had feedback effects by creating resources and incentives that influenced the formation and activity of social groups and motivated their mobilization to maintain and expand the benefits. Although legal advocacy organizations and lawyers' associations were not key sources of demand for a modern civil rights enforcement regime founded upon private litigation in 1964, once catalyzed by the creation of that regime, they clearly sought to entrench and extend it. In contrast with the rent-seeking lawyer hypothesis as applied to the 1964 Act, to the extent that rent-seeking lawyers have mobilized around fee shifting in the area of civil rights, this was an effect of the CRA of 1964, not its cause. Moreover, it should be emphasized in connection with this observation that with regard to demand for the statutory extension of the CRA of 1964's fee-shifting approach across the entire field of civil rights, it is absolutely clear that non-profit civil rights groups, such as the NAACP, the LDF, and the Lawyers' Committee, motivated by policy goals rather than personal enrichment, led the charge.Footnote ²⁹⁵ To the extent that the growing for-profit civil rights bar contributed to the statutory expansion of attorney fee shifting in civil rights cases, it was by lending weight to the demand for a policy program orchestrated by civil rights groups.

The CRAFAA of 1976 resulted directly from the 1964 enforcement compromise. The 1964 Act's central reliance upon private enforcement, with fee shifting for successful plaintiffs, was critical in fostering the growth of civil rights legal advocacy groups and spawning a for-profit civil rights bar, which together increased demand for civil rights fee shifting. By the early to mid-1970s, the successful mobilization of considerable levels of private enforcement activity had dispelled skepticism among civil rights advocates about the capacity of fee shifting to overcome the multiple obstacles faced by private enforcers in the job discrimination context. With the NAACP leading the way in the lobbying effort, civil rights groups succeeded in securing legislative extension of Title VII's fee-shifting language, verbatim, to other civil rights laws prohibiting job discrimination and across the whole field of civil rights more broadly. To justify passage, a broad and bipartisan coalition of legislators pointed both to the success of fee shifting in mobilizing robust private enforcement under Title VII of the CRA of 1964 and to its ability to do so without increasing budgets or bureaucracy. This largely completed the modern approach to civil rights enforcement.