The future of private enforcement of civil rights

“It's never over. Nothing ever gets settled in this town.” George P. Shultz's oft-quoted observation about life in Washington, D.C., applies with special force to the development of the civil rights state. The increased polarization that marked the Obama era has had a dramatic impact on civil rights enforcement. This final chapter begins by examining the implications of this political stalemate for the Obama administration's efforts to sustain and advance the rights revolution. It then considers the possibility of an even more dramatic retrenchment of civil rights enforcement in the current political environment and the types of strategies available to civil rights advocates to pursue in response. THE RIGHTS REVOLUTION IN AN ERA OF DEEPENING POLARIZATION The Republican leadership in Congress greeted the advent of the Obama administration by declaring their intention to defeat any of its initiatives, including those related to civil rights. As a result, the Obama administration chose to take a wide range of innovative unilateral actions, a few of which were promoted as part of the administration's “We Can't Wait” initiative and others coming in a steady stream after President Obama's 2014 State of the Union address emphasized that the Republicans left him with no choice but to “act alone.” Highlights of the Obama administration's civil rights initiatives include the following: • Establishment of a National Equal Pay Task Force to implement President Obama's pledge to strengthen enforcement of equal pay laws. • The Department of Defense's repeal of the “don't ask, don't tell” policy regarding homosexuals in the armed services. • The decision by the Department of Justice (DOJ) in 2011 not to defend the Defense of Marriage Act and later to have the Solicitor General argue in favor of marriage equality in cases before the Supreme Court. • An executive action, the Deferred Action on Child Arrivals (DACA), taken to protect undocumented individuals who were brought to the United States as children. • The publication of a joint Department of Education (DOE) and DOJ “Dear Colleague” letter regarding racial disparities in school discipline policies and enforcement. • An executive order protecting employees of federal contractors seeking information regarding pay discrimination. • An executive order extending prohibitions on discrimination in the civilian federal workforce to apply to gender identity and in hiring by federal contractors on the basis of sexual orientation and gender identity.