Beyond the Private Attorney General: Equality Directives in American Law

Abstract

American civil rights regulation is generally understood as relying on private enforcement in courts, rather than imposing positive duties on state actors to further equity goals. This Article argues that this dominant conception of American civil rights regulation is incomplete. Rather, American civil rights regulation also contains a set of “equality directives,” whose emergence and reach in recent years have gone unrecognized in the commentary. These federal-level equality directives use administrative tools of conditioned spending, policymaking, and oversight powerfully to promote substantive inclusion with regard to race, ethnicity, language, and disability. These directives move beyond the constraints of the standard private attorney general regime of antidiscrimination law. They engage broader tools of state power, just as recent Supreme Court decisions have constrained private enforcement. They require states to take proactive, front-end, affirmative measures, rather than relying on backward-looking, individually driven complaints. And these directives move beyond a narrow focus on individual bias to address current, structural barriers to equality. As a result, these directives are profoundly transforming the operation and design of programs at the state and local levels. They are engaging both traditional civil rights groups and community-based groups in innovative and promising new forms of advocacy and implementation.