The Yale Law Journal

February 2020

Plessy Preserved: Agencies and the Effective Constitution

Legal HistoryAdministrative LawCivil-Rights Law

abstract. Sometimes the judicial Constitution is not the one that matters. The administrative state is capable of creating divergent legal frameworks that powerfully shape public life. But to the extent that they reside outside of judicial precedent, such administrative regimes may go unrecognized.

In this Article, I chart the history of an alternative “administrative Constitution” that remains etched in U.S. cities. Drawing on original archival research, I show that throughout the twentieth century, the federal administrators who oversaw the nation’s public-housing program implemented and defended a legal regime based on Plessy v. Ferguson’s “separate but equal” principle—even after the judiciary announced the opposing mandate of Brown v. Board of Education and after the political branches adopted formal civil-rights reforms in the 1960s. Why did an agency led by liberal reformers and dedicated to serving the poor do this? Administrators believed the public- housing program was politically unsustainable without racial segregation, while agency lawyers argued for preserving the older framework, which had once been understood as a progressive triumph in its commitment to “racial equity.” Procedural barriers shielded the agency from defending that entrenched framework in the courts.

Uncovering public housing’s racial Constitution challenges conventional legal narratives around civil rights by foregrounding the role of federal administrators in thwarting Brown. Simultaneously, Plessy’s resilience in the administrative realm underscores the ongoing need to unearth such regimes to better assess agencies’ role in establishing the constitutional principles that actu- ally govern us—that is, in determining the effective Constitution.

author. Assistant Professor, University of California, Berkeley, School of Law. For insightful comments, I thank Kathryn Abrams, Abbye Atkinson, Andrew Bradt, Sean Farhang, Catherine Fisk, Jonathan Glater, Ian Haney López, Sonia Katyal, Melissa Murray, Tejas Narechania, Dylan Penningroth, Claudia Polsky, Russell Robinson, Bertrall Ross, Andrea Roth, Margo Schlanger, Matthew Shapiro, Avani Sood, Erik Stallman, and Karen Tani, as well as participants at the 2018 Berkeley Law Faculty Retreat; the UC Berkeley Center for Study of Law & Society, UC Irvine School of Law, and Vanderbilt Law School faculty workshops; Michigan Law 2019 Junior Scholars Conference; and LatCrit 2017. I am grateful to Rishita Apsani and Toni Mendicino for their excellent research assistance and to the Yale Law Journal editors for all the work they did to bring the Article to publication.