Four Decades of Federal Civil Rights Litigation

• Published date: 01 March 2015
• Author: Theodore Eisenberg
• Date: 01 March 2015
• DOI: http://doi.org/10.1111/jels.12063

Four Decades of Federal Civil

Rights Litigation

Theodore Eisenberg*

I. Introduction

Civil rights litigation has been a prominent part of the federal docket in the

decades since Dr. King’s speech. The speech came in the midst of two seminal events

in the modern history of civil rights legislation: (1) the 1961 decision in Monroe v.

Pape1that revitalized using 42 U.S.C. § 1983 to redress constitutional violations by

state officials, and (2) a statutory achievement of the civil rights movement, passage of the

Civil Rights Act of 19642with its prohibition in Title VII3against private employment

discrimination.

Section 1983 cases, often referred to as constitutional tort cases, and employment

discrimination cases, including Title VII cases, numerically dominate the civil rights case

docket in federal court. There are, of course, other important statutes designed to

protect civil rights. These include the ban on race discrimination in federally funded

programs in Title VI of the 1964 Act,4the ban on sex discrimination in education pro-

grams or activities that receive federal funding in Title IX of the Education Amendments

of 1972,5the Age Discrimination in Employment Act of 1967,6the Americans with

*Theodore Eisenberg (1947–2014).

Ted prepared a draft of this article incident to his participation in a New York Law School Law Review Symposium

in 2013. Ted tragically passed away prior to this article’s completion. Professors Kevin Clermont, Dawn Chutkow, and

Michael Heise assisted with bringing Ted’s article to completion and publication. Els Baum provided outstanding

research assistance to this effort.

1365 U.S. 167 (1961).

2Pub. L. No. 88–352, 78 Stat. 241 (1964) (enacted July 2, 1964).

342 U.S.C. §§ 2000e et seq.

442 U.S.C. §§ 2000d et seq.

542 U.S.C. § 1681 (2006).

629 U.S.C. §§ 621 et seq.

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Journal of Empirical Legal Studies

Volume 12, Issue 1, 4–28, March 2015

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Disabilities Act of 1990,7the Rehabilitation Act of 1973,8the Equal Pay Act of 1963,9the

Voting Rights Act of 1965,10 and surviving civil rights statutes from the post-Civil War

era.11 The Civil Rights Act of 1968,12 which prohibits discrimination in housing, was

enacted shortly after the assassination of Dr. King. For the last four decades, however,

litigation under Section 1983 and the employment statutes has constituted the largest

fraction of the nonprisoner federal civil docket.13 This article examines the pattern of

trials, their outcomes, and settlements in these two areas from 1979 to 2013.

From the beginning of the modern civil rights era of litigation in the 1960s, concerns

have been expressed about the treatment of civil rights litigants in court. Kevin Clermont

and Stewart Schwab found that federal employment discrimination plaintiffs, compared to

non-civil rights plaintiffs, “manage fewer resolutions early in litigation, and so they have to

proceed to trial more often. They win a lower proportion of cases during pretrial and at

trial. . . . On appeal, they have a harder time both in preserving their successes and in

reversing adverse outcomes.”14 Laura Beth Nielsen, Robert Nelson, and Ryon Lancaster’s

classic study of federal employment discrimination cases filed from 1988 to 2003 showed

that employment discrimination cases suffered 19 percent early dismissals and 18 percent

losses on summary judgment.15 Figure 1, based on Nielsen et al.’s similar figure, shows the

pattern of employment case disposition.

742 U.S.C. §§ 12101 et seq.

829 U.S.C. §§ 791 et seq.

929 U.S.C. § 206(d) (2006).

1042 U.S.C. §§ 1973 et seq. (invalidated in part by Shelby Cnty. v. Holder, 133 S. Ct. 2612 (2013)).

1142 U.S.C. §§ 1981, 1982, 1985 (2006).

1242 U.S.C. § 3601 et seq.

13E.g., U.S. Courts, Caseload Statistics 2013: Table C-2, U.S. District Courts—Civil Cases Commenced, by Basis of

Jurisdiction and Nature of Suit, During the 12-Month Periods Ending March 31, 2012 and 2013, available

at <http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/Statistics/FederalJudicialCaseloadStatistics/2013/tables/

C02Mar13.pdf>. For fiscal year 2013, these data show 14,078 employment filings, 2,020 Americans with Disabilities Act

employment filings, and 16,405 other civil rights filings in federal district court. Only prisoner case categories (habeas

corpus and prison conditions) had comparable or greater numbers of filings. Id. Overlap exists among the civil rights

case categories. For example, an employment race discrimination case against a state employer could be filed under

Section 1983 and Title VII. The court data’s classification of a case is based on the classification of it by the attorney

at the time of filing. For discussion of civil rights action cause of action overlap, see Theodore Eisenberg & Stewart

J. Schwab, Comment, The Importance of Section 1981, 73 Cornell L. Rev. 596, 601 tbl.III (1988) (showing that cases

filed under 42 U.S.C. § 1981 include employment cases that could also be Title VII cases, and police misconduct cases

that could also be Section 1983 cases).

14Kevin M. Clermont & Stewart J. Schwab, Employment Discrimination Plaintiffs in Federal Court: From Bad to

Worse? 3 Harv. L. & Pol’y Rev. 103, 103 (2009).

15Laura Beth Nielsen, Robert L. Nelson & Ryon Lancaster, Individual Justice or Collective Legal Mobilization?

Employment Discrimination Litigation in the Post Civil Rights United States, 7 J. Empirical Legal Stud. 175 (2010).

This study was significant because it provided detailed procedural stage information that was previously unavailable.

Four Decades of Federal Civil Rights Litigation 5