A private right of action is a mechanism by which a private citizen may bring suit to enforce a law. In the excerpts, the term appears in two settings: Title IX enforcement, as described by R. Shep Melnick, and a municipal license plate reader policy, as described by Jonathan Hofer.
Title IX and the “private right of action”
Speaking with Bob Zadek, R. Shep Melnick described the private right of action as an enforcement mechanism that courts recognized even though it was not written into the statute. He said that withholding federal funds was seen as too politically dangerous and administratively cumbersome to use except in extreme circumstances, so another enforcement mechanism was needed. That mechanism was the so-called “private right of action,” which Melnick defined as meaning that any private citizen can bring suit against a university or school system to require them to follow Title IX. The courts recognized it, he said, even though it was not in the statute, and it became the fundamental enforcement mechanism of Title IX: to go to court. Title IX’s Transformation: R. Shep Melnick on the New Civil Rights Debate (2018)
Melnick placed that development inside a two-actor system. He said there are not one set of actors, administrators, but two sets of actors: administrators and judges. Because the funding threat was too dangerous and cumbersome, the private suit became the route to enforcement, and the two sets of actors then built upon each other in a process he called “institutional leapfrogging.” In his account, the administrators would take one step, the courts would take another step, then the agency would go beyond that, and each would say it was just following what the other one did. The result, he said, was a large set of changes with little effort to ask what the long-term consequences would be. Title IX’s Transformation: R. Shep Melnick on the New Civil Rights Debate (2018)
Melnick also described how the Office for Civil Rights in the Department of Education bypassed the legally prescribed method of establishing rules and regulations under the Administrative Procedure Act. Instead, he said, it used so-called “interpretations” and “Dear Colleague” letters, and the courts largely deferred to those informal guidelines. He called the result a uniquely opaque regulatory system. Title IX’s Transformation: R. Shep Melnick on the New Civil Rights Debate (2018)
Bob Zadek framed the broader regulatory picture in his own words. He described an agency hired, not elected, to supervise compliance with statutes, promulgating rules and regulations that in many cases go well beyond the statute itself, with courts giving broad deference to the regulators. In his account the regulators in effect pass legislation disguised as regulations, and disputes are litigated through administrative law judges who are part of the agency itself, so that the agency performs lawmaking, executive, and judicial functions. He invoked James Madison’s warning that the accumulation of all powers, legislative, executive, and judiciary, in the same hands may justly be pronounced the very definition of tyranny, and said the regulatory state undoes or combines all three powers. Title IX’s Transformation: R. Shep Melnick on the New Civil Rights Debate (2018)
License plate readers and a municipal private right of action
In a later episode on mass surveillance, Bob Zadek posed a hypothetical to Jonathan Hofer: a civil litigant wants to pay a private company that maintains cameras around town to run a license plate search and learn where a car has been for the last four weeks. Zadek asked whether that offended Hofer. The Mass Surveillance nobody is talking about (2022)
Hofer answered that the question had come up in a court case, involving a company that aggregates data and rents out access to police. He said the argument was that the company had a First Amendment right to the data, and that the company asked what the difference was between it and a newspaper, since a newspaper uses its eyeballs, observes the facts, records them and publishes them. Hofer said there is no court case where this is butted up against mosaic theory, and that he would hold that private people and companies do have a right to store the data, though it becomes concerning once the government uses it as effectively mass surveillance. The Mass Surveillance nobody is talking about (2022)
Zadek then asked whether Hofer’s concern would be materially satisfied if law enforcement could never be the collector. Hofer said he does not necessarily have a problem with law enforcement collecting their own scans, and that requiring a warrant to get data from third parties would be eons ahead of where things are now; he said most of his concerns would actually be absolved. He added that he does not have a problem with private toll collection or parking enforcement in private parking garages, and that he does not think the government has a vested interest in keeping records on people not suspected of criminal wrongdoing. The Mass Surveillance nobody is talking about (2022)
Zadek next asked whether Hofer’s concerns would be mitigated if a system adequately compensated victims, with the cost of the system borne by the source of the mistake. Hofer said that in that case the benefits of the technology should outweigh all possible costs, including lawsuits, maintenance and other errors, and that he did not want to fleece taxpayers with the burden of law enforcement incorrectly pulling over people. He then said it is prudent that cities operating ALPRs carve out some remedy for the people they have wronged. The Mass Surveillance nobody is talking about (2022)
Hofer’s concrete example was San Francisco. He said San Francisco has done this in its license plate reader policy: it has carved out a private right of action, under which, in his paraphrase, if the surveillance equipment injured you, you have the right to sue if the city does not make it better. He called that important to do. He then raised whether police have malpractice insurance or a stockpile to pay out lawsuits, which he said brings up a lot of other issues. Zadek asked whether they were getting into qualified immunity, and Hofer answered yes. The Mass Surveillance nobody is talking about (2022)
The same exchange appears in a second episode on ALPRs. There Hofer again said that cities operating ALPRs should carve out some remedy for the people they have wronged, and again cited San Francisco’s license plate reader policy as having carved out a private right of action, saying that if the surveillance equipment injured you, you have the right to sue if the city does not make it better. He repeated the point that this brings up whether police have malpractice insurance or a stockpile to pay out lawsuits, and when Zadek asked whether they were getting into qualified immunity, Hofer answered yes and said that would be a whole other show. A PSA on ALPRs (2022)
Across episodes
The excerpts show the private right of action discussed in two distinct contexts rather than as a single developing argument: R. Shep Melnick describes it as the court-recognized enforcement mechanism of Title IX, while Jonathan Hofer describes San Francisco’s license plate reader policy as carving one out for people injured by surveillance equipment. The two treatments do not engage each other, and the excerpts show no development between them.
What the sources do not cover
The excerpts do not state the name of any statute creating a private right of action, nor any case holding that one exists or which amendment a challenge turned on. They do not give the text of San Francisco’s license plate reader policy, the scope of the remedy it provides, or the outcome of any suit brought under it. Melnick’s account does not identify the decisions in which courts recognized the Title IX mechanism, and the excerpts break off before the later segments of the episodes in which the discussion continues.