Excerpted From: Sophia Z. Lee, Racial Justice and Administrative Procedure, 97 Chicago-Kent Law Review 161 (2022) (178 Footnotes) (Full Document)


SophiaZLeeThis article argues that commemorating the Administrative Procedure Act (APA) should involve accounting for the role it has played in both advancing and thwarting racial justice, as well as the role racial justice advocates have played in shaping its interpretation. The APA was not designed to advance racial justice; indeed, its provisions insulated some of the mid-twentieth century's most racially pernicious policies from challenge. Yet racial justice advocates have long understood that administrative agencies could be a necessary or even uniquely receptive target for their efforts and the APA shaped those calculations. Along the way, racial justice advocates left their mark on administrative law, including an underappreciated role in administrative law's participatory turn. Better understanding the interaction of racial justice and administrative procedure, I argue, would benefit historical and legal scholarship on race, administrative law, and their many underexplored yet consequential intersections.

The 2020 protests following the police killings of George Floyd and Breonna Taylor among others, spurred unprecedented attention to the intersections between race and administrative law. Over three dozen related essays were published online in subsequent months by the Yale Journal on Regulation and the Regulatory Review. Entries came from giants of the field and relative newcomers. The contributing scholars traced the roots of administrative law to the United States' history of violence and dispossession of Native peoples and its exclusion of Asian immigrants. They wrote trenchantly about how administrative law and the agencies it governs reproduce and exacerbate racial inequality. In these accounts, administrative law's contributions to racial justice lie in the future: contributors posited ways to make administrative law, scholarship, and teaching more attentive to race and able to further racial justice (or, at least, to make these realms less racist).

While the current level of scholarly attention is new, advocates and ordinary people have long harnessed administrative law and administration to further racial justice. Indeed, those efforts predated the Administrative Procedure Act (APA), the subject of this symposium issue. Often, those efforts were only partially--or not at all--successful. Administration and the law that governs it reflect the racism of the society in which they exist; they do not transcend but are embedded within their social, political, and economic context. Racial justice advocates have had to creatively find ways to bend law to their ends, whether administered by an agency, interpreted by a court, or made by a legislature.

Telling the history of how advocates have leveraged administration and administrative law to advance racial justice is a necessary component of reckoning with the intersections of race and administrative law. Thus far, histories of administrative procedure do not emphasize race while those on race and administration do not emphasize procedure. There is also growing scholarship on administration's role in the struggle for racial justice but little on how racial justice struggles shaped administrative law. The current conversation also focuses more on how administration exacerbates rather than creates opportunities to redress racial injustice.

Addressing these gaps is necessary to a full accounting of the intersection of race and administrative law. Most obviously, doing so can help fulfill the important project of analyzing how administrative law instantiates racism. Tracing the promises and limits of administrative law for racial justice advocates also helps draw comparisons within and across historical periods about the relative permeability of the judicial, executive, and legislative branches to such advocacy. Those efforts additionally reveal surprising examples of racial justice advocates moving administrative law in ways that have consequences for the field writ large. In other words, administrative law has been shaped by racial justice, and not only racist, projects.

This article surveys examples of the ways in which racial justice advocates have harnessed administration and administrative law. Doing so injects a historical perspective into unfolding conversations about race and administrative law today while bringing those conversations to bear on this commemoration of the APA's 75th anniversary. Even this brief survey underscores the vital role that the APA and administrative procedure have played in the struggle for racial justice. That history also reminds that administrative law has not only been an engine of racial oppression, even as it underscores the urgency of recent calls to make administrative law align with and better advance racial justice.

The article begins with several parts highlighting aspects of the history of race and administration, emphasizing the role of administrative law and the APA. Part I of this article argues that the APA's usefulness in racial justice advocacy was accidental--the product of advocates', organizations', and regulated individuals' creativity, not of legislative intent. Part II uses an array of examples drawn from my and other scholars' work to demonstrate that racial justice advocates nonetheless had to contend with administrative procedure in the wake of the APA's enactment. As it shows, the new landmark statute provided both a valuable tool and an injustice-preserving barrier to their efforts. Part III provides a brief case study of how one group used administrative procedure generally, and the APA in particular, to fight for more Black representation among broadcasters and in broadcasting during the Black Power era, helping to change administrative law along the way.

The article then steps back in Part IV to consider the implications of the preceding parts for historical and legal scholarship, as well as the larger project underway of reckoning with the intersection of race and administration. Part IV.A urges historians working on race and administration to focus on administrative procedure, not only substantive policy, and to attend to agencies' resulting permeability relative to Congress and the courts. Doing so, I argue, will benefit historical and legal scholarship on race and on administration. Part IV.B argues that racial justice advocates' contributions to administrative law are important yet understudied. Paying more attention to them could shed new light on the history of administrative law and politics. That attention can also help ensure that administrative law's debts to the efforts of Black activists and advocates are accounted for in the current conversation about race and administration. Part IV.C considers current proposals for measuring and remedying administrative agencies' racial impacts, highlighting how a more robust history of race and administrative procedure and policy could aid those efforts. A brief conclusion follows.

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Administration and administrative law, like the work of Congress and the courts, has been integral to sustaining White supremacy and thwarting racial justice. But just as advocates have managed at times to bend those latter institutions to racial justice ends, so have they been able to do so with administration and administrative law.

The history of using administrative advocacy to pursue racial justice is older than the APA. To the extent that the APA has contributed to those efforts, it has been due to the creative work of advocates, not the intentions of its drafters. As a result, historians should consider how administration and administrative law have provided advocates an important avenue for advancing racial justice, not only created barriers to its realization. Their efforts and successes should be tallied even as scholars continue to uncover administration's and administrative law's connections to racial subordination. A full accounting of race and administrative law also needs to consider how racial justice movements have contributed to administrative law. History can play an important role in taking stock of and remedying the racial impacts of administration as well. Those efforts should attend to the law that structures administrative action in addition to agencies' substantive policy. If we do that work, perhaps by the time the APA turns 100 we will have a sharper and richer understanding of its racial legacy and of what needs to be done to atone.

Professor of Law, University of Pennsylvania Law School.