The Right to Sue in Defense of Civil Rights Is Narrowing in America

This fall, the US Supreme Court will take up a question with potentially sweeping consequences for civil rights: who has the power to enforce them? On November 30, the justices will hear arguments on whether employees at federally funded universities can sue under Title IX over claims of workplace discrimination. The Trump administration has urged the court to rule that they cannot, arguing that Congress never gave university employees a private right of action.

The case is the latest front in a broad legal campaign to limit the ability of individuals and advocacy groups to bring rights violations to court themselves. In June, the Supreme Court declined to take up an appeal of a federal appellate ruling that barred Arkansas United, an immigrant advocacy organization, from suing to enforce protections for voters who need assistance at the polls. In a growing number of cases, Republican-led states and the Trump administration are pursuing the same basic principle: unless Congress explicitly grants citizens the right to sue, enforcement of the law should rest largely with the government.

It sounds like a technical legal argument, but the consequences are far from small. If individuals and civil rights groups cannot go to court when the laws protecting them are violated, the power to decide which rights are actually enforced will increasingly rest with the government – the very institution that may be violating, ignoring or choosing not to enforce those rights.

Private rights of action allow an individual or group to file suit on their own behalf to enforce rights protected by law. Such suits can demand compliance with the law or compensation for past violations. Private rights of action do not automatically follow from US federal and state law. Congress and state legislatures sometimes grant an explicit right to sue. When they do not, courts must determine whether the law implies that individuals or groups may sue, or whether enforcement belongs solely to government agencies.

In practice, private litigation has been an essential part of rights enforcement for much of American history. University of Virginia law professor George Rutherglen wrote in a 2015 article: "The long history of civil rights, dating back to Reconstruction, has made them the paradigmatic private rights, whose exercise and enforcement should depend primarily on the initiative of the individuals who hold them. Public enforcement is unquestionably necessary, and it too has a long and honorable tradition in civil rights law, but it cannot wholly displace individual control over individual rights."

Supporters of private rights of action, such as AARP, see them as an effective tool for individuals and vulnerable groups to protect their rights when government agencies are unwilling or unable to act. Critics, such as the US Chamber of Commerce's Institute for Legal Reform, argue that private litigation can encourage frivolous lawsuits.

These critics, often on the political right, have sought to limit private litigation through legal arguments against private rights of action. One example is the 2001 Alexander v. Sandoval decision, in which a Supreme Court majority led by Justice Antonin Scalia ruled that Title VI does not create a private right of action to enforce regulations barring policies or practices with a disparate impact on protected groups – discrimination that can occur without clear evidence of intent.

Legal pressure against private rights of action has mounted in recent years. Republican-led states are increasingly challenging the doctrine of implied private rights of action, arguing that courts should reject private suits to enforce various categories of rights. The Trump administration has adopted this view as well. When the court resolved a voting rights case in 2021, Justice Neil Gorsuch issued a one-paragraph concurrence, joined by Justice Clarence Thomas, questioning whether "the Voting Rights Act of 1965 creates an implied right of action," even though that issue was not raised in the case.

The conservative effort to narrow private rights of action has spread across many areas. In June, the Supreme Court ruled against Falun Gong practitioners who accused Cisco Systems of helping the Chinese government develop surveillance technology used to facilitate their persecution, concluding that they could not pursue the aiding-and-abetting claims under federal law that they had invoked.

One of the most significant consequences of limiting private rights of action is the threat to voting rights. In the Arkansas United case, the 8th US Circuit Court of Appeals ruled that the immigrant advocacy organization had no standing to sue on behalf of non-native English speakers over the right to language assistance at the polls. The ruling concerned Section 208 of the Voting Rights Act of 1965, but it extended a broader argument that this court has applied: that individuals and advocacy organizations cannot sue to enforce key provisions of the Voting Rights Act. The Supreme Court's refusal in June to hear the Arkansas United case left that ruling in place.

The argument has also been advanced by Republican-led administrations in two cases on redistricting and vote dilution: Board of Election Commissioners v. NAACP in Mississippi and Turtle Mountain Band of Chippewa Indians v. Howe in North Dakota. In May, the Supreme Court vacated the rulings in both cases and sent them back for reconsideration in light of its decision in Louisiana v. Callais, without resolving the question of private enforcement. That ruling significantly raised the bar for certain claims of racial vote dilution, endangering the voting rights of Black, Hispanic and Native American communities across the United States. At the same time, conservative-controlled administrations are trying to deny members and supporters of these communities the right to bring some such cases to court, arguing that only the Justice Department can sue over those voting rights violations.

The greater danger is that as private rights of action are narrowed, enforcement of federal law increasingly depends on the decisions of the executive branch.

The Trump administration is now pursuing another route to limit private enforcement. The Clean Air Act explicitly grants citizens the right to sue in certain cases, but the Justice Department has sought to intervene and dismiss a lawsuit against xAI alleging that gas turbines at the company's power facility in Southaven, Mississippi, are violating federal environmental law and polluting surrounding communities. The facility supplies power to xAI's Colossus 2 data center in nearby Memphis. In September, the Justice Department appealed to the 5th Circuit and sought to stay the case. It argued that allowing the lawsuit to proceed would threaten national security and America's efforts to lead the world in AI. Here, the question is not whether Congress created a private right of action – it did – but whether the executive branch can step in to stop such a case when it conflicts with its priorities.

Relying solely on the Justice Department to pursue such cases at the federal level is a particularly dubious proposition under the current administration. The department has also been weaponized to target President Trump's political opponents. Its Civil Rights Division has been redirected away from protecting the rights of racial and ethnic minorities and refocused on cases brought by white plaintiffs alleging so-called "reverse discrimination."

The politicization of the Justice Department could be reversed under a future administration. But even then, the erosion of private rights of action will leave enforcement of civil and political rights increasingly dependent on a federal agency with limited resources and subject to political direction. For example, as Democracy Docket noted in 2024, of the 216 voting rights and redistricting cases being tracked at that time, only five had been brought by the Justice Department. As Professor Rutherglen noted in his article, relying mainly on government actors to enforce rights "is to change the nature of those rights: from private to public, from individual to group, from the legal control of the plaintiff to the political control of the administrators."

Private rights of action are now being eroded, one case at a time. Politicians, civil liberties advocates and organizations must challenge this trend before many avenues of enforcement are closed. Otherwise, protections won over decades may increasingly depend on the goodwill of the administration to maintain them, leaving those whose rights are violated with fewer ways to seek redress.

The views in this article are the author's and do not necessarily reflect the editorial stance of Al Jazeera.