The Agency Roots of Disparate Impact

The disparate impact strand of antidiscrimination law provides the possibility of challenging harmful employment, education, housing, and other public and private policies and practices without the often-difficult burden of proving intentional discrimination. And yet the disparate impact standard seems to be facing its own burdens. Rulings by the Supreme Court in recent years have shaken the disparate impact standard\u27s footing. In Ricci v. De- Stefano, the Court rejected a frontal assault to the disparate impact standard under Title VII of the Civil Rights Act of 1964, but cast the standard as at odds with Title VII\u27s true core – its prohibition of intentional discrimination. In its 2001 decision in Alexander v. Sandoval, the Court refused to allow private enforcement of the disparate impact regulations issued pursuant to Title VI of the Civil Rights Act of 1964, and though it assumed the validity of these regulations, the Court noted their considerable tension with the dictates of the statute. Then, in May 2013, the Court granted certiorari on the validity of the federal courts\u27 longstanding interpretation of the Fair Housing Act ( FHA ) to prohibit unjustified disparate impacts in Township of Mount Holly, New Jersey v. Mt. Holly Gardens Citizens in Action, Inc.The Supreme Court appeared poised to decide the question, but the case was settled by the parties shortly before oral argument. The Supreme Court has had past waves of skepticism about the doctrine. The Court\u27s 1989 opinion in Wards Cove Packing Co. v. Atonio made it harder for plaintiffs to establish disparate impact claims; congressional rejection of this decision spurred the 1991 Civil Rights Act\u27s codification of a burden-shifting standard for Title VII. Indeed, even commentators supportive of disparate impact\u27s inclusionary goals question the efficacy of the disparate impact standard and ask whether the standard detracts from the assumed more important goal of addressing intentional discrimination. This Article argues that casting disparate impact as a disfavored, illegitimate, judicially created branch of antidiscrimination law fails to grapple adequately with disparate impact\u27s longstanding roots as a tool employed by agencies to implement statutory antidiscrimination precepts. Nor does this view fully appreciate the continuing role that federal administrative agencies play in shaping the meaning of disparate impact today. Investigating the role of agencies in shaping disparate impact has new urgency: the Department of Housing and Urban Development ( HUD ) recently promulgated regulations formalizing the FHA\u27s disparate impact standard.The rule\u27s legality as well as its broader legitimacy crucially depend on one\u27s view of agencies\u27 formal powers, expertise, and capacity to define and shape disparate impact. This rulemaking brings to the fore the role of civil rights and federal agencies in shaping and interpreting disparate impact. The new FHA regulations, I suggest, provide an occasion to examine afresh the disparate impact standard\u27s origins in agency lawmaking and practice. Understanding the role of agencies in developing and shaping disparate impact standards has the potential to shore up the disparate impact standard\u27s seemingly shaky normative foundations in a number of key ways. For one, including agencies in our account allows us to understand disparate impact not as a separate offshoot of antidiscrimination law invented by courts, but as a reasonable agency implementation choice given the potentially broad and conflicting meanings of the antidiscrimination directive of civil rights law. Agencies, not courts, first developed disparate impact under the Civil Rights Act of 1964, and, under standard administrative deference principles, agencies have authority to define the capacious term discrimination to include disparate impact. In addition, agencies\u27 implementation of disparate impact draws on their distinctive set of competencies relative to courts. For instance, in the context of fair housing, HUD\u27s promulgation of disparate impact rules has the capacity to stabilize disparate impact law and to provide clarity to regulated entities subject to different judicial standards. Disparate impact\u27s fate is intimately connected with civil rights\u27 hybrid enforcement regime – one that lodges implementation power not just in courts, but also in agencies

How Agencies Can Better Regulate for Racial Justice

On his first day in office, President Joseph R. Biden signed an executive order to advance racial equity throughout the federal government by taking a “systematic approach to embedding fairness in decision-making,” redressing inequities, and advancing equal opportunity in agency policies and programs. This order is an important step. President Biden’s executive order promises new, proactive engagement by the administrative state to promote racial equity and other dimensions of inclusion in agency programs. But federal administrative agencies have played a key role in structuring racial segregation and sustaining racial inequality in housing, health care, access to transit, and wealth. President Biden’s executive order does not, however, lay out specifics, leaving it to agencies and the Office of Management and Budget to give shape to the aspirations of the executive order. Commentators have offered a range of promising ideas, including retooling or abandoning cost-benefit analysis to advance racial justice and equity considerations, scoring policies and regulations for their impact on racial equity, and disaggregating agency data by race, ethnicity, and gender, among other characteristics, to help agencies better understand the impact of programs and regulations on particular communities. Here are three additional ideas to consider

The Equity E.O.: Building a Regulatory Infrastructure of Inclusion

Among his first acts, President Biden signed Executive Order 13,985 to advance “Racial Equity and Support for Underserved Communities Through the Federal Government.” Alongside an order directing regulatory review to include “social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations” and an ambitious infrastructure plan, this Equity E.O. signals a new engagement of the administrative state in proactively promoting racial equity and other dimensions of inclusion. The outlines of the infrastructure initiative are still emerging, but what appears key is its conceptualization of infrastructure as extending beyond roads and buildings to the social and human capital — including technological access and caregiving — that enables connection to opportunity and full thriving for all Americans. Crucially, the proposed infrastructure plan also directs investments into communities that were intentionally excluded from or harmed by federal government programs, for instance, communities cut off from economic opportunity by the construction of federally-funded highways or redlined out of federally backed housing loan programs. The Equity E.O. may seem technocratic in comparison, as it is big on process and short on concrete initiatives and new money, but, alongside the other initiatives, it has potential to prompt serious examination of the role of the administrative state in the formation and maintenance of racial and other forms of inequality and to lead to creative rethinking of the structure and design of federal programs across a range of domains

Stimulus and Civil Rights

Federal spending has the capacity to perpetuate racial inequality, not simply through explicit exclusion, but through choices made in the legislative and institutional design of spending programs. Drawing on the lessons of New Deal and postwar social programs, this Essay offers an account of the specificfeatures offederal spending that give it salience in structuring racial arrangements. Federal spending programs, this Essay argues, are relevant in structuring racial inequality due to their massive scale, their creation of new programmatic and spending infrastructures, and the choices made in these programs as to whether to impose explicit inclusionary norms on states and localities. Exploring these features has relevance for understanding the current stimulus. Key aspects of the stimulus entrench funding and programmatic structures that promote racial inequality, defer to states and localities rather than advance explicit civil rights rules and norms, and miss key opportunities to innovate to promote racial inclusion and equity. Yet, this Essay argues that even with these limitations, the stimulus presents opportunities for civil society groups to learn from the lessons of New Deal and postwar programs by using the stimulus to promote racial inclusion and equality. Indeed, this Essay shows that the magnitude of the stimulus is generating a new set of laws and regulatory institutions designed to promote transparency and accountability in federal spending. These interventions, this Essay suggests, provide promise for interrupting the mechanisms through which federal spending perpetuates inequality, and for leveraging the stimulus to advance racial inclusion

Unjust Cities? Gentrification, Integration, and the Fair Housing Act

What does gentrification mean for fair housing? This article considers the possibility that gentrification should be celebrated as a form of integration alongside a darker narrative that sees gentrification as necessarily unstable and leading to inequality or displacement of lower-income, predominantly of color, residents. Given evidence of both possibilities, this article considers how the Fair Housing Act might be deployed to minimize gentrification’s harms while harnessing some of the benefits that might attend integration and movement of higher-income residents to cities. Ultimately, the article urges building on the fair housing approach but employing a broader set of tools to advance a more robust form of integration. This broader framework would attend to how public and private goods are distributed in gentrifying cities, and build governance and participation mechanisms that enhance the voice and participation of traditionally excluded groups

Overreach and Innovation in Equality Regulation

At a time of heightened concern about agency overreach, this Article highlights a less appreciated development in agency equality regulation. Moving beyond traditional bureaucratic forms of regulation, civil rights agencies in recent years have experimented with new forms of regulation to advance inclusion. This new “inclusive regulation” can be described as more open ended, less coercive, and more reliant on rewards, collaboration, flexibility, and interactive assessment than traditional modes of civil rights regulation. This Article examines the power and limits of this new inclusive regulation and suggests a framework for increasing the efficacy of these new modes of regulation

AFFH and the Challenge of Reparations in the Administrative State

America’s summer of racial reckoning has led to increased attention on proposals to provide reparations to Black Americans. Reparations discussions typically concern securing compensation for slavery. The racial harm caused by the administrative state is generally less of a focus, even though racial exclusions and discrimination in 20th-century administrative programs helped shape contemporary disparities in housing, wealth, and opportunity that endure today. A provision of federal housing law provides a window into the roots of racial harm enacted through administrative state programs, as well as the limits of administrative law as a tool for repairing this harm

The Dignity of Equality Legislation

In Congressional Power to Effect Sex Equality, Patricia Seith argues that legal and social science commentary on the ratification failure of the Equal Rights Amendment ( ERA ) does not properly account for the legislative gains achieved by the Economic Equity Act ( Equity Act ). In drawing attention to the Equity Act, Seith\u27s account challenges common explanations of the source of women\u27s equality gains, particularly the narratives offered by legal commentators who typically focus on the role of the Constitution and the courts. As Seith points out, the conventional account in legal history focuses on the effectuation of a de facto ERA, a series of Supreme Court decisions interpreting the Equal Protection Clause, which some claim achieved much of what was sought by the ERA. Without diminishing the gains of the de facto ERA or revisiting the failed ERA itself, Seith\u27s narrative shifts attention to the legislative gains achieved by the Equity Act. My aim in this response is to connect Seith\u27s account to a broader discussion about the role of statutes and legislatures in advancing equity and to locate the Equity Act in relation to other civil rights statutes. Seith offers at least three important insights into the capacity of legislative lawmaking to further equity goals. First, Seith\u27s account shows how Congress can serve as a key site for advancing constitutional norms. As I discuss below, Seith\u27s insight can be extended further to other civil rights contexts. Civil rights statutes like the Equity Act, the Civil Rights Act of 1964, and the Fair Housing Act of 1968 have the potential to advance a more capacious and affirmative conception of equity than can be attained merely through a constitutional lens. The equity norms advanced by these statutes are connected in crucial respects to constitutional norms but are more expansive. Second, Seith\u27s account allows us to consider the limitations of the antidiscrimination conception in advancing equity. Seith crucially notes that the provisions of the Equity Act sought economic equity and substantive equality, rather than equality in theory. I show that the Equity Act is not unique among civil rights statutes in moving beyond prohibitions of antidiscrimination to advance equity. As I discuss below, other civil rights statutes – both the paradigmatic civil rights statutes of the 1960s and a newer wave of statutes – do more than prohibit discrimination; they adopt a broader set of tools for advancing inclusion. Third, Seith reveals differences between the Equity Act and the typical civil rights statute: the Equity Act does not centrally engage courts, and it is not framed in the language of rights. Indeed, the Equity Act may be marginalized in legal commentary for these reasons. I argue that more generally, legal commentary should provide greater discussion of civil rights statutes that do not depend on court enforcement. I point to statutory and regulatory interventions that do not rely on private enforcement in courts, but rather on implementation through legislative and administrative bodies. Seith\u27s account of the Equity Act should encourage legal commentators to expand our conception of law to encompass the full range of legal interventions in courts and in legislatures that seek to promote equality. In this Article, I discuss these three key points, bringing in examples of both longstanding civil rights statutes and some more recent enactments. The majority of my examples come from efforts to address racial and ethnic equality, but the models extend beyond these examples. Finally, I argue that Seith\u27s account of the Equity Act raises important questions for future exploration by scholars of civil rights law. To best promote equity one must understand the relationship between various modes of societal change: constitutionalism and legislative change; antidiscrimination and substantive equality; and litigation and nonlitigation strategies. These explorations should prove valuable not simply to academic commentators but also to those seeking to effect change in society