Some doctrinal courses like property or contracts that involve a “racially-charged history” and “doctrine [that] is inextricably linked to race” lend themselves more readily to the inclusion of issues of race and class. Even so, the inclusion of socioeconomic issues in traditional doctrinal courses, though growing more common, remains relatively rare, driven by notions of neutrality and “perspectivelessness” that mask positionality and structural inequity. It is even more rare in courses like administrative law. Because administrative law emphasizes procedure and structure, along the lines of Herbert Weschler’s tradition of “neutral principles,” it may be easier to avoid “seeing” and addressing issues of socioeconomic inequality and structural racism.
To provide some structure to addressing socioeconomic issues in administrative law, I will use the five W’s and an H approach: Who What When Where Why and How.
● Who? Scholars have noted that “law students of color have a degraded law school experience, both inside and outside of the law school classroom, in comparison to their white counterparts.” This degraded experience comes from deficits in social inclusion in the law school environment combined with the experience of social erasure in the law itself when presented as involving neutral principles. Such social erasure in the law may be felt across legal subject areas, particularly in doctrinal courses.
Because traditional law teaching often minimizes or excludes discussions of socioeconomics in most doctrinal courses, there may be a tendency to direct the discussion to subsets of students, such as students of color. Including issues of race and class is critical to support and engage students of color and other marginalized students. But they must not be the only or even the main focus of this effort. This can be challenging for students and faculty alike. Some students may feel spotlighted when issues of race, racism, inequality, and class are introduced. This concern is not limited to students of color. In fact, it is equally important when incorporating issues of race and class in a doctrinal course like administrative law, to reach white law students. This can raise different issues. As some scholars have noted, white students may feel “ambushed” when discussions of socioeconomics or systemic racism are included in so-called “traditional” law school courses. They may resist such inclusion and even react with hostility because such inclusion interrupts the more comfortable notion that the study of law is an examination of objective and neutral principles.
Incorporating socioeconomic reality and issues of systemic racism is important to the education of all law students. It is key to developing a more inclusive understanding of structures and operation of the law and its effects on all people, especially those most often disregarded, disenfranchised, or erased.
Our task as law professors is to reach all students. The current politically polarized climate makes that outreach effort all the more important across the spectrum of students in a given class at a given law school.
● What? What is socioeconomic pedagogy and what are ways political polarization implicates administrative law courses? Socio-economic pedagogy means teaching law in a manner that seeks to move away from what Atiba Ellis calls “normalizing domination.” It does so by acknowledging systemic racism embedded in the foundations of society and government and how those foundations affect current positions, procedures, and practices.
At the same time, students must be educated in the legal rules and principles that they will need to be successful practicing lawyers. In presenting both the rules and their foundations, socioeconomic pedagogy acknowledges the power and the limits of the law to address inequity, injustice, and the sense of exclusion. It examines the particular doctrine, structures, methods, procedures—the tools in the particular subject area—and how to use them to push toward greater justice and equality. It does so, however, with attention to the doctrines and practices that students must learn in order to be effective lawyers. Ensuring students have a solid grounding in administrative law rules and procedures is particularly important where both public service and access to the legal profession are part of the law school’s mission.
The current toxic political climate, as it applies to and informs developments in administrative law, provides an opportunity to highlight what previously might have been hidden behind the bland, procedural, technocratic language of government agency action. In some sense, the current presidential administration’s shift from political strategies involving dog whistles and opaque structural and procedural maneuvers that reinforce inequality to overt statements exhibiting racism and discrimination has helped to reveal the role of racism in administrative law.
An almost non-stop political, rhetorical, and legal upheaval has been taking place since the last presidential campaign. It has involved attacks on immigrants, Muslims, the Latinx community, African Americans, African countries, women, the poor, even judges, members of Congress and other elected officials who are women, people of color, and women of color in particular, among others. Such rhetoric has helped to demonstrate, for example, that initiatives like the project to “deconstruct the administrative state” are far from benign, technical policy proposals and instead relate directly to discrimination based on race, ethnicity, national origin, and class.
The rhetoric has accompanied a non-stop legal upheaval taking place since the current President took office. This includes initiatives targeting not only particular individuals and groups but also the administrative state, institutions of government, and the rule of law itself. It is and has been a jarring period for the law—for substantive law, procedural law, the constitutional structure of separated powers, checks and balances, and indeed notions of the rule of law itself.
There is certainly room for policy differences about the role of government and for shifts in agency priorities. However, many recent and current executive actions are simply wrong and are damaging to democracy and society. Any discussion of the administrative state must acknowledge that elections have consequences, including policy change. Yet some things, like respecting people’s humanity and adhering to existing law and standards of fairness, are not negotiable. Many of the current administration’s statements and actions diverge from mere policy positions to examples of systemic and state-sanctioned racism, discrimination, and violations of law.
The current administration has engaged in attacks on the administrative and regulatory state, on procedural fairness, on institutions of government, and on the rule of law itself. Many of these actions involve issues of socioeconomics and the administrative state, including the DACA rescission, the Muslim ban, the census case, undermining the Affordable Care Act, the public charge rule, the roll back of consumer protection and environmental regulations, among many other actions. These developments reveal, and in some ways make it easier to confront, issues of socioeconomic inequality in administrative law.
● When and Where to Engage These Issues? In determining when and where to engage with current events and issues related to race/ethnicity and class it is important to consider balance and read the room. Faculty also should think carefully about how to frame the inclusion of socioeconomic issues and ground rules for discussion at the start of the course.
In this hyper-polarized moment, I have come to think of the classroom as partly a place to engage with the issues of the day and partly a refuge from them. Balancing course materials and discussion to allow for engagement with current events and developments and to provide some respite from the non-stop assault of current political rhetoric and policy changes—much of which threatens to harm students in my classes and people they care about—is an important goal at this time. This is consistent with concerns about stereotype threat and psychological safety that impact effective teaching and learning.
The questions of “when” and “where” to address key issues also draws in the option of co- and extra-curricular discussions. Sometimes in-depth discussion or exploration of an issue can be addressed more effectively outside of class.
● Why? We must address socioeconomic issues in administrative law classes because teaching in a way that reflects social reality is central to student learning and engagement. It also contributes to the broader project of changing a system that tolerates racism and inequality by covering it over with so-called neutral principles and procedures. It is imperative that law students gain an understanding of how government agencies function, how socioeconomics impact that functioning, and the need for drastic, systemic change, if government is to function as it should.
● How? There are many excellent resources describing approaches to effective law teaching that apply to administrative law. For example, Sean Darling-Hammond and Kristen Holmquist give ten recommendations of things that transformative teachers do, summarized here: (1) approach teaching with enthusiasm and empathy, try to understand the student experience, and inspire passion; (2) communicate high expectations while creating safe classroom environments; (3) provide context for comprehension—assume intelligence but not prior legal experience or skills; (4) give the material structure to make it stick; (5) get feedback, using tools like clickers, breakouts, office hours, and mid-semester evaluations to assess and respond to students’ progress and needs; (6) give feedback, using assessment opportunities throughout the semester to help students learn and self-correct; (7) get practical with opportunities for students to learn practical and academic skills by assigning and reviewing briefs and motions and by reviewing practice exams; (8) use the Socratic method (and all methods), to teach, not intimidate; (9) modernize by embracing discussions about the modern political and social phenomena that attracted many students to law school; and (10) learn from fellow professors as much as possible.
In addition to these suggestions, which I aim to use in my courses, I find the following approaches helpful to acknowledging and including issues of race/ethnicity and class in the administrative law course.
Connect students to the topic, set the foundations, and describe the “big picture.”
With the above recommendations as a backdrop, it is important in the administrative law class to begin by connecting students to the topic, then describe the foundations for the course including the “big picture.” For example, I start with a discussion centered around the question “what is administrative law?” In preparation for the first class, I ask students for a minute paper describing an experience that they have had with an administrative agency (federal, state, or local), and to share with me any issues or areas of administrative law about which they are particularly interested. This exercise accomplishes a couple of things. First, it helps students to place administrative law and agencies within a context that relates to their lived experience. It also helps students to see the ubiquity of the administrative state and how much agencies and the procedures that govern them affect the lives of real people. At the same time, it alerts me to students’ experiences with agencies and areas of interest in administrative law, introducing multiple perspectives about agencies.
It is also key to clearly chart course coverage for students from the outset. This means being very explicit about the topics to be covered, their sources in law, and that the administrative law class is a procedural course that covers a great deal of substance. For example, explain in plain terms that the course is about sources and limits of agency power, required agency procedures, executive and legislative oversight, and judicial review. Ensuring clarity is crucial given the variety of substantive topics involved, especially when incorporating issues of race/ethnicity and class. Setting forth the big picture helps students keep a focus on the operations of government power as mediated through the administrative state. If students see administrative law as setting rules for managing government power through principles and procedures designed to promote fair, efficient, and rational action that is responsive to a broad range of stakeholders, they may more readily “see” its interplay with systemic racialized and class-based power, even when issues of race and class are not directly implicated.
Finally, I discuss with students the “public” nature of the administrative law course. Indeed, at my law school the course is entitled “Public Institutions.” This is intended to remind students that government and its institutions belong to the public—belong to them.
Incorporate current issues and developments while covering foundational cases inclusively.
One of the most direct ways to address racism in administrative law is to take notice when it is implicated in the case law studied. This can be a challenge in administrative law, because many of the foundational cases, such as Chevron, Auer, State Farm, and others do not implicate issues of race/ethnicity, and it is enough of a task to understand the cases and draw out key administrative law principles and how they apply. That is why it is particularly important to raise and address such issues when they do arise in key doctrinal cases and to incorporate in the syllabus cases that exemplify the operation and importance of administrative law principles in mediating such issues. It is beyond the scope of this post to examine such cases, but a few examples include the due process cases, Goldberg v. Kelly, Mathews v. Eldridge, Board ofRegents v. Roth, Goss v. Lopez, among others; the judicial review cases Heckler v. Chaney, Lincoln v. Vigil, and a range of other of the “usual” administrative law cases provide opportunities to examine and address socioeconomic issues. For example, my colleague Rebecca Bratspies has contributed a post in this series examining INS v. Chadha that provides useful insights in this regard.
Of course, a number of more recent administrative law cases implicate issues of race/ethnicity and class much more directly. These include Department of Homeland Security v. Regents of the Univ. of Cal. (the DACA rescission case), Department of Commerce et al. v. New York (the Census “citizenship question” case), Trump v. Hawaii (the “Muslim ban” case), among many others. To avoid a default to discussing these cases in a detached “neutral principles” way, it is useful to provide the broader factual, social, and policy context. Including among reading materials portions of complaints, briefs, or affidavits, in the cases as well as analyses of the cases’ broader implications can help to provide context. Indeed, I have found that discussing the filings and decisions in these and similar cases as they proceed through the courts helps to educate students about both context and process. Grounding class discussion in facts and contextualizing the cases can help to avoid having class discussion devolve into a political debate, as can tying the discussion to the relevant administrative law principles in issue.
To help engage class discussion, I schedule students to be “on call.” This permits students to prepare in advance to address the materials for a particular class. Where I anticipate that there will be either an interest in robust discussion or a tendency toward silence, I arrange the class to allow structured small group discussion of key focus questions followed by a report back and discussion with the class as a whole.
With all this said, there are limits to how much socioeconomic context may be included during class while also giving appropriate attention to key rules and principles. For this reason, I assign projects to give students space to examine and address these issues within an administrative law frame.
Engage students as commenters in current rulemaking and/or as researchers and teachers for administrative law topics that interest them.
Another way to encourage the inclusion and exploration of socioeconomic issues in the administrative law class is to structure assignments that give students a chance to take the lead. In my administrative law course I assign students a choice to research, analyze, and comment on an open rulemaking or to select an administrative law-related topic that interests them, conduct research and analysis, and present it to the class. Students may work individually or in groups. Each student or group then reports its work back to the whole class. This assignment has been one of the richest and most effective ways of bringing socioeconomic issues into the administrative law class.
Because students choose their topics, students are free to explore issues related to race/ethnicity, class, gender, LGBTQ status, or related issues. At the same time, there is no pressure to do so. Several students use this assignment to draw out issues of socioeconomic inequality or systemic racism in a particular context related to administrative law. In virtually every case, their presentations address structural and systemic inequities in the particular context, respond to them, and demonstrate the application and limits of administrative law procedures and principles.
For example, this past semester, students commented on a range of rulemakings, including those related to SNAP benefits and work requirements, Title IX rule changes implicating sexual harassment and sex discrimination, H-1B petitions for nurses amid the pandemic, and simplifying meal service and monitoring of school breakfast and lunch programs. In examining these rulemakings and policy changes, the students gave close attention to facts and context and to the implications for the people affected, including systemic racism and broader concerns about socioeconomic inequality.
Organize Cross-Curricular Opportunities to Address Issues Implicating Race and Class and Invite Student Engagement.
In some instances, such as when a particular rulemaking is being addressed in a number of classes, my colleagues and I have organized cross-curricular workshops on rulemaking. For example, when the proposed rule to determine when a non-citizen is a “public charge” was announced, my colleagues teaching the Immigration Law course, the 3L immigration and health law clinics, and the 1L lawyering course arranged to join with my 2L administrative law class for a workshop on effective rulemaking comments focused on responding to that proposed rule. During the workshop we covered the rulemaking process generally and as it applied to the “public charge” proposed rule. We then discussed strategies for effective comments on rulemaking and key facts and information related to the “public charge” rule. Students then prepared comments on the proposed rule (or another proposed rule) from a perspective of their choice.
The workshop provided a chance for students to combine a focus on writing, advocacy, rulemaking, and immigration law and policy. It also focused on key facts about the origins of the “public charge” rule, the impetus for the rule change, and the implications for public health, education, the economy, and issues of discrimination, poverty, and systemic inequity.
Listen to Students and Leave Space to Address Issues of Race/Ethnicity and Class.
A final thought about including issues of racism, and race/ethnicity and class in the administrative law is to listen to students. Often students in the class will see and raise these issues in response to cases, class discussion, or current events related to the class. Even when pressed for time, I have found it helpful to pause, listen to students, and leave space to address such issues when they arise.
● Conclusion Administrative law is about mediating government power. Because that power should represent the needs of the public—the people—it is imperative that the administrative law course incorporate and respond to socioeconomic reality, including the problem of systemic racism. The current administration’s actions exacerbating inequality and flouting procedural norms and the rule of law expose connections between administrative law and systemic racism that at times have been obscured. More recent events, including the COVID-19 pandemic’s starkly unequal impact and the protests ushering in a necessary reckoning on race in the aftermath of the police killing of George Floyd, have made the relevance and urgency of including issues of race/ethnicity and class in administrative law teaching even clearer.