Notice & Comment

Seeing Race in Administrative Law: An Interdisciplinary Perspective, by Joy Milligan and Karen Tani

The administrative state has often been an engine of racial inequality. It is true that federal agencies have played key roles in implementing civil rights legislation and have sometimes attempted to dismantle entrenched racial disparities. But long before the enactment of modern civil rights laws—and extending long afterward—administrative agencies have helped mark people as racially “other” and disadvantaged those so marked, whether through authorizing and extending segregation or perpetuating discrimination. Take for example, the Department of Agriculture: its discrimination against Black farmers in its farm lending program resulted in record-setting settlements from 1999 through 2010. The scope of discrimination alleged was sweeping, had deep historical roots, and emanated from aspects of the agency’s basic structure(such as the delegation of decision-making power to committees of local farmers in some programs). So entangled was this agency with racial injustice that some dubbed it “the last plantation.”

Yet administrative law, as traditionally taught and studied, often avoids confronting questions of race and racial inequality. The core of administrative law focuses instead on questions of comparative institutional power and competency, most often translated into procedural requirements for agencies or rules of deference for judicial review. There are few obvious points of leverage for thinking about how agency action affects racial hierarchy and how race affects administrative decisionmaking. Why should this be? And what can scholars do to change this? We take up each question in turn. 

First, why is there a disconnect between the practical reality of administrative action and the field of law that bears its name?

One obvious reason is that administrative law is trans-substantive: as structured by legislators and judges, administrative law provides an overarching framework for reviewing all administrative action, whether in the realm of environmental protection or food safety regulation or banking. To achieve that macro-level perspective, administrative law abstracts away from substantive inquiries that might vary depending on the agency’s field. 

A second reason is that administrative law has long focused on the basic question of whether agencies can legitimately wield power at all, and for historical reasons, legitimacy concerns have translated into procedural safeguards: participation mandates, public accountability mechanisms, and the like. To contest an agency’s decision is thus often to contest process, and that is where judges’ attention turns. This “procedure fetish” leaves much outside the frame, as Nicholas Bagley has noted, including crucial questions about the distribution of power. A procedural focus might, of course, perceive race, if racism were to infect an administrative process. But the law of race discrimination has developed in such a way that only the most flagrant and illegitimate examples are likely to receive judicial attention. 

But what about scholarly attention? In many legal fields, scholars take a more capacious view of the field than do judges and lawyers. What has prevented administrative law scholars from recognizing the centrality of race to the work of agencies? 

The core claim of this post is that method matters. For generations of legal scholars, published appellate court decisions have been the primary fodder for research. And, as we have described, the administrative law doctrines that courts apply tend to abstract away from underlying questions of racial inequality. That leaves race seemingly invisible.

So what can be done? Fortunately, as previous writers’ rich contributions to this series reflect, other disciplines’ literatures and methodologies offer strengths that administrative law scholars can draw upon as a means to make race visible and move it closer to the center of the field. The literatures and methods of political science, sociology, and history already underpin many administrative scholars’ work. Drawing upon those fields to study race in administrative law should come naturally.

For example, looking to actors’ incentives and motivations in designing particular agencies, as political scientists have long done, can help reveal how race may have been incorporated into an agency’s DNA—that is, embedded in the agency’s powers, personnel, its modus operandi, and the core constituencies lobbying for its work to continue. Likewise, studying how Congress and the President wield their tools vis-à-vis agencies (for example, their powers over appointments and agency organization) can reveal attempts to reinforce or shift an agency’s apparent racial commitments. This was the case with the Department of Education and the Public Housing Administration: legislators and the President often went to significant lengths to ensure that these agencies would maintain the racial status quo. The Department of Education—for most of its life simply an “Office of Education”—was kept small and resource-strapped in part out of fear of its potential to reshape patterns of racial exclusion in schools. The Public Housing Administration had to walk a political tightrope to avoid being killed off entirely by conservatives opposed to social welfare programs; agency leaders chose to maintain segregation in public housing because doing so seemed essential to its institutional survival.

Questions and methods derived from history are equally valuable. For decades, historians have explored Americans’ everyday experiences with law and government, including administrative agencies. And for the most part, they have done so unconstrained by the questions that dominate administrative law. Using administrative records, alongside sources like newspapers and personal papers, they have asked a range of other interesting questions—from how agencies helped define the modern meaning of “homosexual,” to how they acclimated Americans to a more visible and powerful federal government, to how they managed religious pluralism. Historians have also illuminated points of contact between agencies and racialized “others,” ranging from Native Americans, to newly emancipated Black Americans, to Chinese immigrants. At a minimum, such scholarship should remind legal scholars to look beyond the records that agencies compile for judicial review (which are especially likely to gloss over race) and to avail themselves of the vast trails of paper that administrators have left in their wake. 

To sum up, other disciplines open up different questions about what it is that agencies do, why they do it, and—most important for this series of posts—how agencies’ work connects to racial equality over the long-term. The view offered by such interdisciplinary lenses is of agencies as holistic, complex entities that have profound impacts on the structure of public life. In particular, federal agencies have shaped, and continue to shape, the very nature of racial caste in the United States, through almost every field one can list: immigrationpolicing and incarcerationeducationhousingwelfare,transportation, the environmentagriculture and food policy, and so on. Those far-reaching impacts cannot help but affect agencies’ legitimacy in wielding power, in both practical and Constitutional terms, and thus naturally belong in dialogue with core questions of administrative law.

Accepting such scholarship as part of administrative law’s core would likely require a different mode of thinking about which questions matter, and what “counts” as administrative law. Many of us who think of ourselves as scholars of administrative law might have to think differently about how we prioritize doctrine in our research. Those of us who teach administrative law would have to do the same, perhaps going out of our way to educate students on aspects of administrative decisionmaking that elude the sight of appellate court judges, yet profoundly shape the lived reality of race. 

Doing so might offer long-term benefits. It could equip future practitioners to engage with agencies with clearer eyes and more practical knowledge. It could enrich the other legal fields that are often thought of as the “homes” for scholarship on race, such as constitutional law and civil rights law. (Administrative constitutionalism is a promising example of such border-crossing work.) And ultimately, such interdisciplinary inquiries might lead scholars to reimagine administrative law doctrine in ways that inspire agencies to recognize and repair patterns of racial injustice. 

Joy Milligan is an Assistant Professor at Berkeley Law.

Karen Tani is the Seaman Family University Professor at the University of Pennsylvania Carey School of Law.

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