Disparate Limbo: How Administrative Law Erased Antidiscrimination
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.
See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 558 (2009) (Breyer, J., dissenting) (arguing that the new policy by the Federal Communications Commission (FCC) disproportionately impacts local broadcasters because “the costs of bleeping/delay systems . . . place that technology beyond the financial reach of many smaller independent local stations”).
See Hells Canyon All. v. U.S. Forest Serv., 227 F.3d 1170, 1172-73 (9th Cir. 2000), as amended (Nov. 29, 2000) (“This appeal brings to mind the maxim that you can please all of the people some of the time, and some of the people all of the time, but you can’t please all of the people all of the time. At issue are the regulations for motorized water craft adopted by the United States Forest Service (‘Forest Service’) for portions of the Snake River within the diverse and spectacular area known as the Hells Canyon National Recreation Area. Balancing the competing and often conflicting interests of motorized water craft users, including jetboaters, and non-motorized water craft users, such as rafters and kayakers, is no easy task.”).
See Nat. Res. Def. Council v. Pritzker, 62 F. Supp. 3d 969, 1017 (N.D. Cal. 2014) (holding that the Navy acted arbitrarily and capriciously when it used “basin-wide pelagic numbers” rather than smaller subpopulation numbers when estimating its impact on Hawaii bottlenose dolphins), rev’d and remanded, 828 F.3d 1125 (9th Cir. 2016).
To be sure, not all subgroups necessarily win their Administrative Procedure Act (APA) claims, and indeed, the courts ultimately ruled against the local broadcasters and nonmotorized watercraft users. Yet administrative law readily entertained these subgroups’ differential-impact claims under garden-variety arbitrary-and-capricious review. This stands in stark contrast to the APA’s treatment of claims brought by protected classes, whose disparate-impact claims are often channeled away from the APA.
Many of our APA cases involve animal subpopulations, such as different species of fish or different groups of grizzly bears. And we want to acknowledge, at the outset, that it can be awkward and potentially dehumanizing to compare subgroups of animals and subgroups of humans. It is discomfiting (and it should be discomfiting) to realize that, in many cases, the APA grants stronger legal protections to fish subspecies than it does to, say, Latinx schoolchildren.
See, e.g., Garcia v. Vilsack, 563 F.3d 519 (D.C. Cir. 2009) (rejecting the APA claims of minority farmers denied loans by the U.S. Department of Agriculture (USDA)); Hinojosa v. Horn, 896 F.3d 305 (5th Cir. 2018) (rejecting the APA claims of U.S. citizens born along the Mexican border and denied passports); Garcia v. McCarthy, No. 13-CV-03939, 2014 WL 187386 (N.D. Cal. Jan. 16, 2014) (rejecting the APA claims of Latinx schoolchildren who were disproportionately exposed to dangerous pesticides), aff’d, 649 F. App’x 589 (9th Cir. 2016).
Throughout the paper, we use the term “disparate impact” to refer to claims involving attributes conventionally protected by civil rights law, like race, gender, national origin, and disability. We use the term “differential impact” more generally to encompass disproportionate impact on a subgroup that may not be a protected category by convention. We do so to avoid confusion between “disparate impact” claims recognized under antidiscrimination law and “differential impact” cases that may be recognized under arbitrary-and-capricious review.
Throughout this paper, we use the term “Latinx” rather than “Latino” because the latter term excludes nonbinary and transgender people, among others. However, we recognize that “Latinx” can be difficult to pronounce in Spanish and that many Spanish speakers do not identify as such. For now, we have settled upon a convention of using “Latinx” when writing for English-speaking audiences, as here.
See generally Blake Emerson, The Public’s Law: Origins and Architecture of Progressive Democracy (2019) (tracing how progressive ideals animated New Deal administration in particular); Daniel R. Ernst, Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900-1940 (2014) (describing the role lawyers played in constructing the administrative state and imbuing it with values like due process and individual rights); Karen M. Tani, States of Dependency: Welfare, Rights, and American Governance, 1935-1972 (2016) (describing the state- and local-level bureaucracies that administered New Deal programs and exploring the tensions these programs raised with respect to localism and federalism); Daniel E. Ho & Erica L. Ross, Did Liberal Justices Invent the Standing Doctrine? An Empirical Study of the Evolution of Standing, 1921-2006, 62 Stan. L. Rev. 591 (2010) (demonstrating how liberal Justices deployed the standing doctrine to insulate New Deal administrative agencies from judicial review); Gillian E. Metzger, Foreword: 1930s Redux: The Administrative State Under Siege, 131 Harv. L. Rev. 1 (2017) (describing President Franklin D. Roosevelt’s New Deal and the birth of the APA in 1946); Reuel E. Schiller, The Era of Deference: Courts, Expertise and the Emergence of New Deal Administrative Law, 106 Mich. L. Rev. 399 (2007) (discussing how FDR-appointed judges created a “model of judicial deference” that sharply limited the role of the courts in overseeing the administrative state); Reuel E. Schiller, Reining in the Administrative State: World War II and the Decline of Expert Administration, in Total War and the Law: The American Home Front in World War II 185 (Daniel R. Ernst & Victor Jew eds., 2002) (arguing that World War II diminished Americans’ trust in the administrative state and thus impelled greater judicial control over agencies); Jeremy K. Kessler, The Struggle for Administrative Legitimacy, 129 Harv. L. Rev. 718, 732-33 (2016) (reviewing Ernst, supra) (identifying a “rule of lawyers” whereby agencies developed a “model of lawyerly administration”). Interestingly, the New Deal’s administration did not intersect with race as much as one might expect because key New Deal programs excluded African Americans. See generally Jill Quadagno, The Color of Welfare: How Racism Undermined the War on Poverty (1995) (arguing that antipoverty campaigns from FDR to President Johnson failed to address racial inequality and that this omission undermined the war on poverty).
See, e.g., Daniel P. Carpenter, The Forging of Bureaucratic Autonomy: Reputations, Networks, and Policy Innovation in Executive Agencies, 1862-1928 (2001) (describing how middle-level officials in increasingly professionalized bureaucracies built coalitions with outside groups to bolster autonomy from political overseers); William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth-Century America (1996) (describing state and local regulatory regimes in the period from the Revolution to the Civil War, and arguing, contra the “myth of liberal individualism,” that American society of that time was in fact highly regulated); Nicholas R. Parrillo, Against the Profit Motive: The Salary Revolution in American Government, 1780-1940 (2013) (tracing the “salarization” of the professional civil service from the late nineteenth century through the early twentieth century, and arguing that salarization helped legitimate the early administrative state); Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877-1920 (1982) (examining the rise of the administrative state through historical data on institutions).
See, e.g., Philip Hamburger, Is Administrative Law Unlawful? (2014) (tracing the origins of administrative-law principles to the medieval and early-modern English periods, and arguing that the Founders of the U.S. Constitution rejected administrative-law principles); Jerry L. Mashaw, Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law (2012) (describing Congress’s early delegations to administrative agencies from the 1780s through the 1880s, and arguing that administrative-law principles were established long before the enactment of the 1930s New Deal). Consider in this regard a recent profusion of historical work on nondelegation. See, e.g., Julian Davis Mortenson & Nicholas Bagley, Delegation at the Founding, 121 Colum. L. Rev. 277 (2021); Nicholas R. Parrillo, A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, 130 Yale L.J. 1288 (2021); Ilan Wurman, Nondelegation at the Founding, 130 Yale L.J. 1490 (2021).
See, e.g., Jennifer Alexander, Avoiding the Issue: Racisms and Administrative Responsibility in Public Administration, 27 Am. Rev. Pub. Admin. 343, 344 (1997) (arguing that “public administrators” have ignored race and calling on them to analyze “the racial dynamics within their particular institution”); Karen M. Tani, Administrative Constitutionalism at the “Borders of Belonging”: Drawing on History to Expand the Archive and Change the Lens, 167 U. Pa. L. Rev. 1603, 1603-04 (2019) (noting the “thin empirical foundation” of studies of government administration and “marginalized and non-elite populations”); Bernard Bell, Race and Administrative Law, Yale J. on Regul.: Notice & Comment Blog (Aug. 10, 2020), https://www.yalejreg.com/nc/race-and-administrative-law-by-bernard-bell [https://perma.cc/6V4C-23J4] (“Most of administrative law scholarship, and certainly the most widely cited and acclaimed scholarly contributions to the field, appear to be color-blind.”); Peter L. Strauss, Citizens to Preserve Overton Park—Race-Inflected Below Its Surface, Yale J. on Regul.: Notice & Comment Blog (July 16, 2020), https://www.yalejreg.com/nc/citizens-to-preserve-overton-park-race-inflected-below-its-surface-by-peter-l-strauss [https://perma.cc/8SXF-QLHY] (“I learned then of a lengthy political struggle between the route’s proponents . . . and its opponents, those (White) citizens whose homes would be taken by the route or affected by its noise and fumes. The Court had never learned of those struggles or of the impact of the circumferential route’s impact on Black neighborhoods . . . .”).
See, e.g., Joy Milligan & Karen Tani, Seeing Race in Administrative Law: An Interdisciplinary Perspective, Yale J. on Regul.: Notice & Comment Blog (Sept. 16, 2020), https://www.yalejreg.com/nc/seeing-race-in-administrative-law-an-interdisciplinary-perspective-by-joy-milligan-and-karen-tani [https://perma.cc/6EQJ-NJSC] (“[A]dministrative law, as traditionally taught and studied, often avoids confronting questions of race and racial inequality.”).
See, e.g., Estelle T. Lau, Paper Families: Identity, Immigration Administration, and Chinese Exclusion 1-5 (2006) (recounting the effects of the Chinese Exclusion Act on Chinese American communities and analyzing attempts by immigrants to create “paper families” to bypass immigration laws); Lucy E. Salyer, Laws Harsh As Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law 1-4 (2000) (arguing that the early legal struggles between Chinese immigrants, immigration agencies, and federal courts laid the foundations for American immigration law); Kitty Calavita, The Paradoxes of Race, Class, Identity, and “Passing”: Enforcing the Chinese Exclusion Acts, 1882-1910, 25 Law & Soc. Inquiry 1, 2 (2000) (studying the enforcement of the Chinese Exclusion Act, and arguing that enforcement by immigration officers was based on assumptions about race, class, and identity); Gabriel J. Chin, Regulating Race: Asian Exclusion and the Administrative State, 37 Harv. C.R.-C.L. L. Rev. 1, 5 (2002) (arguing that the Supreme Court’s early immigration jurisprudence was likely infected with racism, and noting that the “Court appears to have envisioned Asian immigration as a form of war that justified extreme governmental intervention”); Kristin A. Collins, Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation, 123 Yale L.J. 2134, 2134-38 (2014) (arguing that jus sanguinis laws of citizenship were motivated by “racially nativist polices” that aimed to “deny the citizenship claims of nonwhite children”); Raquel Muñiz, DACA Through the Critical Systems Thinking (CST) Lens: Unpacking Racialization in Administrative Law, Yale J. on Regul.: Notice & Comment Blog (Aug. 18, 2020), https://www.yalejreg.com/nc/daca-through-the-critical-systems-thinking-cst-lens-unpacking-racialization-in-administrative-law-by-raquel-muniz [https://perma.cc/EZ5F-BMS5] (“[DACA] offers a case through which to examine the racialized nature of administrative law.”); Carrie Rosenbaum, UnEqual Protection in Immigration Law, Yale J. on Regul.: Notice & Comment Blog (July 22, 2020), https://www.yalejreg.com/nc/unequal-protection-in-immigration-law-by-carrie-rosenbaum [https://perma.cc/F89P-4NJB] (“Immigration law has contributed to shaping and reinforcing the construct of race more than any other area of administrative law.”).
See, e.g., Stephen J. Rockwell, Indian Affairs and the Administrative State in the Nineteenth Century 3 (2010) (disputing the conventional narrative of a small and rudimentary nineteenth-century administrative state, and instead documenting the “vibrant, complicated federal bureaucracy” that managed Indian affairs and westward expansion throughout the nineteenth century); Gregory Ablavsky, Administrative Constitutionalism and the Northwest Ordinance, 167 U. Pa. L. Rev. 1631, 1633 (2019) (discussing the Northwest Ordinance, in which Congress “delegated executive, legislative, and judicial power” to federal officials in charge of the Northwest Territory, and its implications for administrative law); Craig Green, Indian Affairs and Administrative Law, Yale J. on Regul.: Notice & Comment Blog (Aug. 25, 2020), https://www.yalejreg.com/nc/indian-affairs-and-administrative-law-by-craig-green [https://perma.cc/U6LM-AWB5]; Victoria Sutton, Native Americans and Discriminatory Administration with Facially Neutral Rules, Yale J. on Regul.: Notice & Comment Blog (July 15, 2020), https://www.yalejreg.com/nc/native-americans-and-discriminatory-administration-with-facially-neutral-rules-by-victoria-sutton [https://perma.cc/S59N-PHJG].
See, e.g., Elaine Golin, Note, Solving the Problem of Gender and Racial Bias in Administrative Adjudication, 95 Colum. L. Rev. 1532, 1534 (1995) (discussing gender and racial bias in adjudication by administrative-law judges and proposing “carefully structured agency complaint resolution procedures” to help address these problems); Steph Tai, Racism and Informal Agency Adjudicatory Decisions, or, Is Racism Arbitrary and Capricious?, Yale J. on Regul.: Notice & Comment Blog (Aug. 5, 2020), https://www.yalejreg.com/nc/racism-and-informal-agency-adjudicatory-decisions-or-is-racism-arbitrary-and-capricious-by-steph-tai [https://perma.cc/Q39Q-5EFJ] (arguing that arbitrary-and-capricious review may permit “racial disparities in federal (and state) agency distribution of grants, loans, and licenses”).
See, e.g., Dorothy M. Daley & Tony G. Reames, Public Participation and Environmental Justice: Access to Federal Decision Making, in Failed Promises: Evaluating the Federal Government’s Response to Environmental Justice 143 (David M. Konisky ed., 2015) (discussing agencies’ “uneven” efforts to increase public participation from minority and low-income groups in environmental rulemaking); Gwendolyn McKee, Noticing Notice, Yale J. on Regul.: Notice & Comment Blog (Aug. 3, 2020), https://www.yalejreg.com/nc/noticing-notice-by-gwendolyn-mckee [https://perma.cc/8Z2Y-2475] (noting that the process of rulemaking, which involves publication in the Federal Register, is “a system that specifically rewards insiders with the knowledge and understanding to take part in it”).
See, e.g., James Goodwin, Cost-Benefit Analysis Is Racist, Ctr. for Progressive Reform, http://progressivereform.org/our-work/regulatory-policy/cost-benefit-analysis-racist [https: //perma.cc/GXF5-A3AE] (arguing that cost-benefit analysis is “an effective conduit for injecting racism into regulatory decision making”); Melissa J. Luttrell & Jorge Roman-Romero, Regulatory (In)Justice: Racism and CBA Review, Yale J. on Regul.: Notice & Comment Blog (Oct. 27, 2020), https://www.yalejreg.com/nc/regulatory-injustice-racism-and-cba-review-by-melissa-j-luttrell-and-jorge-roman-romero [https://perma.cc/9E9D-2WTX] (arguing that cost-benefit analysis in agency risk regulation “tends to generate racially biased outcomes”).
See, e.g., Christopher D. Ahlers, Race, Ethnicity, and Air Pollution: New Directions in Environmental Justice, 46 Env’t L. 713, 728-29 (2016); Rachel Calvert, Reviving the Environmental Justice Potential of Title VI Through Heightened Judicial Review, 90 U. Colo. L. Rev. 867, 880 (2019); Michael Fisher, Environmental Racism Claims Brought Under Title VI of the Civil Rights Act, 25 Env’t L. 285, 317 (1995) (“In general, two types of suits can be filed under Title VI: suit against the recipient of federal funds, or a suit against the funding agency itself. The first type of suit is much easier to undertake because courts’ interpretations of Title VI and the Administrative Procedure Act . . . have limited the availability of actions against funding agencies.”); Kyle W. La Londe, Who Wants to Be an Environmental Justice Advocate?: Options for Bringing an Environmental Justice Complaint in the Wake of Alexander v. Sandoval, 31 B.C. Env’t Aff. L. Rev. 27, 39 (2004) (“Currently, individuals are not entitled to bring an action under the Administrative Procedure Act . . . to compel federal agencies to enforce their Title VI regulations, leaving little recourse for challenging EPA’s lethargy with Title VI complaints. Courts have reasoned that APA suits are unnecessary because plaintiffs have the option of directly challenging, in court, the recipients of funds who are violating Title VI. But, in light of the Supreme Court’s holding in Sandoval, the rationale for such decisions no longer exists, opening up the possibility that courts may begin to allow challenges under the APA.”).
See, e.g., William N. Eskridge, Jr. & John Ferejohn, A Republic of Statutes: The New American Constitution 31 (2010) (recounting the role of agencies in elaborating constitutional and statutory protections against discrimination on the basis of sex and sexual orientation); Risa L. Goluboff, The Lost Promise of Civil Rights 10 (2007) (recounting the role of the early Civil Rights Division of the U.S. Department of Justice (DOJ) in pushing equal protection toward integration rather than economic rights); Sophia Z. Lee, The Workplace Constitution from the New Deal to the New Right 47 (2014) [hereinafter Lee, The Workplace Constitution] (arguing that agencies played an important and mostly overlooked role in shaping Americans’ constitutional rights in the workplace); Barbara Young Welke, Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 1865-1920 xiii-xv (2001) (tracing the litigation that emerged from the expansion of interstate railroads, and arguing that these legal battles fomented the use of state regulatory power to protect individuals); David Freeman Engstrom, The Lost Origins of American Fair Employment Law: Regulatory Choice and the Making of Modern Civil Rights, 1943-1972, 63 Stan. L. Rev. 1071, 1071 (2011) (describing the state-level employment-discrimination laws that preceded the Civil Rights Act of 1964, and examining the effects of the choice by legislators and civil rights groups to vest primary implementation authority in agencies rather than courts); Sophia Z. Lee, Race, Sex, and Rulemaking: Administrative Constitutionalism and the Workplace, 1960 to the Present, 96 Va. L. Rev. 799, 801 (2010) [hereinafter Lee, Race, Sex, and Rulemaking] (describing “administrative constitutionalism,” or the process whereby agencies interpret the Constitution, via case studies of equal employment rulemaking at the FCC and the Federal Power Commission); Joy Milligan, Plessy Preserved: Agencies and the Effective Constitution, 129 Yale L.J. 924, 924 (2020) [hereinafter Milligan, Plessy Preserved] (arguing that federal housing administrators preserved a separate-but-equal doctrine of segregation throughout the twentieth century); Joy Milligan, Subsidizing Segregation, 104 Va. L. Rev. 847, 847-48 (2018) [hereinafter Milligan, Subsidizing Segregation] (recounting how federal education officials declined to enforce the Equal Protection Clause and continued to fund racially segregated schools, even post-Brown v. Board of Education, and arguing that an agency’s institutional design and mandate affects how that agency interprets the Constitution); Sidney A. Shapiro, United Church of Christ v. FCC: Private Attorneys General and the Rule of Law, 58 Admin. L. Rev. 939, 940-41 (2006) (arguing that “private attorneys general” can help promote the rule of law when they challenge agency decisions favorable to regulated entities, and citing the United Church of Christ case to demonstrate how private attorneys general challenged racism in telecommunications administration (citing Off. of Communications of the United Church of Christ v. FCC, 359 F.2d 994 (D.C. Cir. 1966); Off. of Communications of the United Church of Christ v. FCC, 425 F.2d 543 (D.C. Cir. 1969))); Jed Handelsman Shugerman, The Creation of the Department of Justice: Professionalization Without Civil Rights or Civil Service, 66 Stan. L. Rev. 121, 121 (2014) (disputing one popular scholarly view about the creation of the DOJ, which held that “Congress created the DOJ to enforce Reconstruction and ex-slaves’ civil rights,” and instead arguing that the DOJ’s creation was driven by budget-cutting concerns since the DOJ bill eliminated about one third of federal legal staff). For an insightful overview of work focused on “administrative constitutionalism,” see Sophia Z. Lee, Our Administered Constitution: Administrative Constitutionalism from the Founding to the Present, 167 U. Pa. L. Rev. 1699, 1703-05 (2019).
See, e.g., Michelle Alexander, Opinion, America, This Is Your Chance, N.Y. Times (June 8, 2020), https://www.nytimes.com/2020/06/08/opinion/george-floyd-protests-race.html [https://perma.cc/S82Z-SNZ4] (“Millions of us watched a black man in Minnesota lie on the ground for nearly nine minutes, begging for his life and calling out to his dead mother, while a white police officer pressed his knee into his neck, killing him, with his hand casually resting in his pocket—all in broad daylight in front of people screaming for the officer to stop.”).
A forthcoming article by Joy Milligan, which we cite repeatedly below, offers a more historically focused complement to the work we attempt here. Joy Milligan, Remembering: The Constitution and Federally Funded Apartheid, U. Chi. L. Rev. (forthcoming 2021), https://ssrn.com/abstract=3849599 [https://perma.cc/P5KF-EQXD].
Just as the APA channels away antidiscrimination claims that involve race, the APA has also channeled away antidiscrimination cases based on disability, gender, and other protected classes. For cases on disability, see, for example, American Disabled for Attendant Programs Today v. U.S. Department of Housing & Urban Development, 170 F.3d 381, 391 (3d Cir. 1999), which dismissed the claims of a disability-rights group because it “ha[d] not met the requirement under section 704”; West v. Spellings, 480 F. Supp. 2d 213, 217 (D.D.C. 2007), which dismissed a discrimination claim by a student with a disability because he had an alternative “right of action [that] is adequate to redress discrimination”; and Sherman v. Black, 510 F. Supp. 2d 193, 198 (E.D.N.Y. 2007), aff’d, 315 F. App’x 347 (2d Cir. 2009), which dismissed claims of disability-related discrimination because an alternative “adequate” right “precludes a remedy under the APA.”
We discuss the “federal” and “subfederal” categories in more detail in Section III.A.2. While our discussion of the “subfederal” category mostly involves cases with state or local governmental agencies receiving federal funds, the “subfederal” category also covers private entities that receive federal funding, since Title VI extends to private entities. See C.R. Div., Title VI Legal Manual, U.S. Dep’t Just. 20 (Jan. 11, 2001) [hereinafter Title VI Legal Manual], https://web.archive.org/web/20160501163007/https://www.justice.gov/sites/default/files/crt/legacy/2011/06/23/vimanual.pdf [https://perma.cc/K77Y-3L2R] (describing a “recipient” for Title VI purposes as a public or private entity receiving federal funds).
Nicholas Bagley and Eli Savit made a similar point in 2018, when they argued that Sandoval could help open a path for disparate-impact plaintiffs to bring APA challenges. See Nicholas Bagley & Eli Savit, Disparate Impact and the Administrative Procedure Act, Yale J. on Regul.: Notice & Comment Blog (May 10, 2018), https://www.yalejreg.com/nc/disparate-impact-and-the-administrativeprocedure-act [https://perma.cc/A9NR-UHRH] (“Sandoval changed all that by eliminating a private right of action for disparate impact claims. Absent that ‘special, alternative remedy,’ an APA claim to enforce an agency’s compliance with its Title VI regulations should now be viable.”). For more discussion, see infra text accompanying notes 352-376.