The Yale Law Journal

VOLUME
131
2021
NUMBER
2
November 2021
370-781

Disparate Limbo: How Administrative Law Erased Antidiscrimination

Administrative LawAntidiscrimination Law

abstract. Our Article uncovers how modern administrative law erased antidiscrimination principles. This story begins with the Civil Rights Act of 1964, when Congress punted on questions about disparate impact and the relationship between Title VI and the Administrative Procedure Act (APA). But the plot thickened when the D.C. Circuit, in an opinion by then-Judge Ginsburg, held that § 704 of the APA barred civil rights plaintiffs from bringing an APA challenge because Title VI provided an alternative “adequate remedy.”1 Subsequent courts seized on the D.C. Circuit’s § 704 dodge, using it to channel antidiscrimination claims away from the APA. Worse, courts have reflexively applied § 704 to oust civil rights claims, even after the Supreme Court’s decision in Alexander v. Sandoval rendered Title VI demonstrably inadequate.

Antidiscrimination’s erasure from the APA, built on a mistaken relic of statutory interpretation, has consigned civil rights plaintiffs to a paralyzing limbo. Plaintiffs, unable to make out the stringent intent showings required under increasingly inhospitable civil rights laws, are also barred from mounting APA claims against agency discrimination for violations of administrative law’s baseline guarantee of nonarbitrariness.

Remedying disparate limbo is urgently needed, particularly as the nation enters a new round of soul-searching on the government’s role in racial stratification, and as agencies at all levels take up new digital-governance tools that raise vexing bias concerns. Yet understanding the current state of disparate limbo also holds vitally important lessons about the broader sweep of modern administrative law and its relationship to the American civil rights struggle. Indeed, doctrinal developments that are core to the field—most notably the emergence throughout the 1970s and 1980s of muscular “hard look” review and a more intrusive judicial role in administrative governance—may only have been feasible because courts simultaneously excised divisive issues of race from administrative law’s purview. Our account isolates a critical contingent moment when civil rights and administrative law diverged. In so doing, we place race and the scrubbing of antidiscrimination from the APA at the center of the construction of modern administrative law’s empire.

authors. Cristina Isabel Ceballos is a J.D./Ph.D. student at Stanford Law School (J.D. 2021) and at the Stanford Department of Philosophy (Ph.D. expected in 2023); Stanford University, 559 Nathan Abbott Way, Stanford, CA 94305; email: cceballos@stanford.edu. David Freeman Engstrom is the LSVF Professor in Law; Associate Dean, Strategic Initiatives; Co-Director, Center on the Legal Profession; Stanford Law School, 559 Nathan Abbott Way, Stanford, CA 94305; Tel: 650-721-5859; email: dfengstrom@law.stanford.edu. Daniel E. Ho is the William Benjamin Scott and Luna M. Scott Professor of Law; Professor of Political Science; Senior Fellow at Stanford Institute for Economic and Policy Research; Associate Director, Stanford Institute for Human-Centered Artificial Intelligence; Director, Regulation, Evaluation, and Governance Lab (RegLab); Stanford University, 559 Nathan Abbott Way, Stanford, CA 94305; Tel: 650-723-9560; email: dho@law.stanford.edu. We thank Derin McLeod for excellent research assistance, and Nick Bagley, Rich Ford, Jacob Goldin, Pam Karlan, Joy Milligan, Anne Joseph O’Connell, Nora Freeman Engstrom, and participants at the Legal Research in Progress Workshop for helpful comments and conversations. We also thank the Stanford librarians, particularly Kevin Rothenberg, for their tireless assistance. This work was supported by the Stanford Institute for Human-Centered Artificial Intelligence and the Stanford Interdisciplinary Graduate Fellowship.

Introduction

If you are a local broadcaster and a new broadcasting policy will force you to buy expensive “bleeping”2 equipment you cannot afford, you can ask the courts to protect you from the differential impacts of the federal agency’s policy.3 If you are a kayaker in a federally-managed recreation area, and the agency’s new management plan will introduce noisy and disruptive jetboaters, you can ask the courts to reconsider the plan’s impacts on your subgroup of “non-motorized” watercraft users.4 And if you are a Hawaiian dolphin in a small pod, rather than a large pod, you can rest assured that the courts will consider harms from sonar to your subpopulation, rather than lumping you in with all the other dolphin pods.5 In cases like these, courts will entertain claims6 under the Administrative Procedure Act (APA) by subgroups that were potentially negatively impacted by an agency’s facially neutral rule or policy.

Not so if you are a member of a racial, ethnic, or gender group. If you are a human7 member of a protected class, you will face a steeper climb when you assert an antidiscrimination claim under the APA.8 While the APA readily entertains some kinds of claims about “differential impacts”—impacts on small broadcasters,9 nonmotorized watercraft users,10 or small pods of bottlenose dolphins11—judicial interpretations of the APA have mostly stymied claims about racial differential
impact.12 Disparate impact on members of more conventional protected classes—for instance, Black farmers or Latinx13 schoolchildren—is curiously absent from administrative law.14

How did we get here? How did we arrive at a place where the APA will consider claims from subgroups like kayakers and small dolphin pods, but not subgroups like Black farmers15 or Latinx schoolchildren?16 The answer requires a deep excavation of the history of the Civil Rights Act of 1964 and judicial interpretation of the relationship between civil rights and the APA, particularly § 704’s ouster of claims when there is already an “adequate remedy.”17 Performing that spadework, we examine the legislative struggles surrounding the Civil Rights Act, then subsequent APA cases,18 and finally the Supreme Court’s more recent disparate-impact jurisprudence.19 By carefully tracing this statutory and doctrinal evolution, we show how the APA erased race from its purview. When agencies act in ways that have significantly different effects along racial or ethnic lines, a claim to that effect is cognizable under neither administrative law nor antidiscrimination law. Civil rights plaintiffs sit in what we call “disparate limbo,” unable to make out the stringent intent showings required under the nation’s increasingly inhospitable civil rights laws, but simultaneously barred from mounting claims invoking the APA’s baseline guarantee of nonarbitrariness.

Understanding the many twists and turns of disparate limbo’s evolution is important to pinpointing the ways courts, Congress, or the President could remedy the situation. But our project is also a larger one—not merely descriptive and prescriptive, but also richly explanatory. If correct, our origin story can explain how the erasure of race constructed modern administrative law. Doctrinal developments that sit at the field’s core—most notably the emergence of “hard look” review and a more intrusive judicial role in administrative governance—may only have been feasible because courts excised differential impact by race from administrative law’s domain. And this erasure allowed courts to harden their review, while simultaneously steering clear of increasingly divisive civil rights questions that imperiled courts’ growing institutional power and their efforts to cabin and contain the modern administrative state. Our account thus places race—and the scrubbing of antidiscrimination from the APA—at the center of the construction of modern administrative law’s empire.

That wider reckoning is long overdue. As the struggle over the future of the American administrative state has accelerated in recent years, scholars have focused attention on other pivotal moments in the creation of modern administrative law, particularly the 1930s and 1940s, when an alphabet soup of agencies sprang up alongside new regulatory powers and legal constraints.20 Other key contributions step back further in time, to the nineteenth century and the birth of a professional civil service,21 or earlier still to the Founding, when the American regulatory state was a glimmer in the eye of modern state-builders,22 in order to understand administrative law’s evolution and present-day legitimacy.

Far fewer have reckoned with race as a central explanation for administrative law’s modern-day form.23 Indeed, race is often glossed over in scholarship and teaching,24 and scholars have only just begun to explore the ways in which racism is deeply entrenched in specific areas like immigration law25 and Indian law,26 or to consider the possibility that discrimination is endemic in core agency processes, from adjudication27 to notice-and-comment rulemaking28 to cost-benefit analysis.29 Only environmental-justice scholarship has considered administrative law’s neglect of antidiscrimination in any substantial detail or highlighted the gap between Title VI and the APA.30 Finally, a small but growing body of work traces how particular agencies, entrusted with regulatory authority in housing, labor and employment, transportation, and telecommunications, shaped key civil rights protections, including constitutional ones.31

All of these lines of inquiry are worthy and welcome, particularly as the nation undergoes a new round of soul-searching in its continuing efforts to live up to its ideals.32 No previous scholars, however, have seriously grappled with racism’s more concrete doctrinal roots within the APA.33 We do so here, identifying the specific cases and APA mechanisms, namely APA § 704, that courts have used to scrub antidiscrimination from American administrative law. Our account, centered on the 1970s through the 1990s, helps chart a new course for thinking about the evolution of the American regulatory state by isolating a critical contingent moment when civil rights and administrative law diverged.

Our Article proceeds in four Parts. Part I lays out the core puzzle by identifying a curious double standard. While administrative law readily acknowledges “differential impact”34 on subgroups, such as distinct types of animals, park-goers, or business owners, the APA has proven less hospitable to claims of disparate impact on racial subgroups and other conventional protected classes.35 Courts often turn to one administrative-law provision, APA § 704, to channel antidiscrimination claims away from the APA on the theory that some other statute provides an “adequate” alternative remedy.36

Part II turns to the origins of disparate limbo. We examine the history of the Civil Rights Act and identify an “original sin,” as it were—a critical set of textual ambiguities regarding the interaction between the APA and Title VI, particularly where a federal agency oversees subfederal fundees alleged to be engaged in unlawful discrimination.37 Congress never clarified the relationship between the two statutes, instead punting difficult questions to agencies and courts. These unanswered questions had far-reaching implications, for they spawned a line of APA precedents unfriendly to civil rights, anchored by the D.C. Circuit’s Women’s Equity case (sometimes referred to as the Adams case). Penned by then-Judge Ginsburg, Women’s Equity ousted civil rights claims under § 704 and channeled antidiscrimination away from the APA. Judge Ginsburg’s opinion may have made sense at the time given that the Supreme Court had found in Title VI a private right of action—an arguably robust alternative to an APA challenge.38 But the Court’s subsequent revocation39 of an implied right of action to assert disparate-impact claims under agencies’ Title VI implementing regulations raises serious questions about whether Women’s Equity still holds, now that the gap between Title VI and an APA challenge has inarguably widened to a chasm. Courts have also problematically extended Women’s Equity beyond its original setting, which involved federal-agency supervision of subfederal actors40 (labeled “subfederal” cases below), to cases that involve only federal agencies (or “federal” cases) and so raise unique concerns.

Whether or not courts are willing to revisit these issues, Women’s Equity has already cast a long shadow over the field. The § 704 maneuver deprived administrative law of any significant tradition of considering antidiscrimination claims via arbitrary-and-capricious review, despite APA § 706 being a natural vehicle for considering these kinds of claims. Moreover, it did so at a key moment in administrative law’s development, just as courts minted newly muscular forms of judicial review of agency action.

Part III develops the legal and policy implications that follow from our account. Using our mapping of multiple statutory and doctrinal wrong turns throughout the 1980s and 1990s, we offer some interventions that could help alleviate disparate limbo without merely importing Title VI into the APA wholesale. At a minimum, courts should revisit Women’s Equity and the § 704 maneuver in light of Sandoval’s neutering of private enforcement under Title VI.41 We also suggest legislative and executive mechanisms to subject agency actions that may have a disparate impact to meaningful judicial review and public ventilation. Adopting one or more of these fixes, we submit, is vitally important now. But fixing disparate limbo will only grow in importance in the years to come. As just one example, agencies at all levels of government, including subfederal entities that many federal agencies oversee, are adopting new automated tools to perform the work of governance.42 These new digital tools bring heightened risk of bias that, because it is embedded deep in code or data, may not be cognizable under disparate treatment or other intent-based conceptualizations of discrimination.

Part IV steps back and places our account within the arc of administrative law’s history. The post-Civil Rights Act years were foundational decades for modern administrative law, yielding Overton Park,43 State Farm,44 Nova Scotia,45 and other seminal APA cases in which courts progressively inserted themselves into administrative governance. Yet those same decades also gave us the now-dominant interpretation of APA § 704, Women’s Equity, and the channeling away of APA and antidiscrimination claims. Modern administrative doctrine was invigorated right when courts scrubbed antidiscrimination from the APA. This leads to a provocative implication: if courts had not engaged in the § 704 maneuver to distance administrative law from a third rail of U.S. politics, administrative doctrine might never have taken the form it did. Modern administrative law’s empire, in other words, may have been built upon a deliberate distancing from one of the most legally and politically divisive issues of its day: the American color line.