… [T]he framing of a social problem in terms of legal rights may itself be revolutionary.2
In recent years, some legal scholars and social activists have expressed skepticism about, if not outright opposition to, the use of litigation and resort to the courts for the assertion and protection of minority rights.3 They argue that the role of the courts is to enforce legal arrangements designed to protect, preserve, and entrench existing inequalities within society, and therefore that when minorities attempt to use the courts to advance their interests, they are not only unlikely to win any significant victories, but they also confer legitimacy on what are, from the viewpoint of minorities, illegitimate institutions whose function is to protect the interests of elites and of the majority of the population.
I would like to offer an alternative view to this radical critique of human rights litigation. Based on my three decades of experience as a legal advocate for minorities and the poor, in which I have consistently employed litigation to assert the rights of marginalized individuals and groups in the United States, I believe that the problem with litigation is not that it confers unwarranted legitimacy on the courts and the legal system, but that, standing alone, it is often ineffective, that even when it is successful the victories can be procedural or symbolic and not substantive, and that it can undermine or prevent necessary political action and social mobilization if it is used in isolation from other methods of asserting and protecting minority rights.
Resort to the courts through litigation should be seen as just one of an arsenal of weapons that minorities and their advocates need to use to combat discrimination, assert and defend rights, and promote minority interests. Litigation, while sometimes effective on its own, often should be used with and in support of community organization and other forms of social mobilization, such as mass demonstrations and civil disobedience; electoral politics and other forms of political action; legislative and administrative advocacy; use of the media, publicity, and public relations; and other forms of non-litigation and extra-legal advocacy.
The variety of forms that discrimination against minorities can take militates in favor of a similar variety of responses, including resort to the courts. Political, economic, social, and legal discrimination against minorities includes segregation; discrimination in the distribution of government benefits and services; and discriminatory treatment of minorities with respect to housing, land ownership, agriculture, occupational licenses, employment, freedom of movement, education, medical care, language, freedom of expression, criminal law, and many other aspects of life. No single form of resistance or advocacy can be effective in addressing such a wide variety of discriminatory treatment of minorities. There needs to be an overall strategy, with sufficient flexibility to respond in different ways to different manifestations of discrimination and oppression. That strategy should include, but not be limited to, litigation, and the litigation should be strategic, that is to say, it should support and complement the overall strategy, and should itself reflect a litigation strategy. In addition, it should provide legal aid to individual minority group members who have personal legal problems arising out of their minority status.
Litigation should be seen as only one mechanism for pursuing social justice for minorities. It should not be used if it prevents community mobilization, or if its discourse or potential results fail to reflect the values of those seeking redress. As Samera Esmeir and Rina Rosenberg have argued persuasively, resorting to law and litigation may give false hope to minorities, and may de-politicize what is fundamentally a political struggle.4