Disparate Limbo: How Administrative Law Erased Antidiscrimination
105 Pages Posted: 25 Feb 2021 Last revised: 1 Dec 2021
Date Written: November 30, 2021
Administrative law has a blind spot. It is blackletter doctrine that an agency’s failure to consider the impacts of its conduct can lead to court invalidation of its decision as arbitrary and capricious. Judges have set aside agency action for failures to consider differential impacts on subgroups of business owners, park visitors, and animals. Yet when it comes to differential impact based on race or ethnicity, courts have, by and large, refused to entertain claims. If you are a Black farmer denied a federal loan, a Latinx schoolchild exposed to dangerous pesticides, a Latinx U.S. citizen denied a passport, or a Black renter suffering from housing discrimination, modern administrative law offers precious little recourse.
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.
Keywords: administrative law, antidiscrimination, civil rights, Title VI, arbitrary and capricious review
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