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Excerpted from: Joy Milligan, Subsidizing Segregation, 104 Virginia Law Review 847 (September, 2018) (367 Footnotes)(Full Document)


JoyMilliganFIFTY years ago, members of Congress were deeply concerned with executive officials' interpretation of the Constitution. In July 1963, a House subcommittee upbraided federal officials for their approach to civil rights, federal power, and executive authority. Legislators faulted the Office of Education's “fearful attitude” and its “hesitancy or reluctance” to implement the equal protection mandate. In particular, they wanted to know why, nearly a decade after Brown v. Board of Education, the agency was still spending federal taxpayers' dollars to build and maintain segregated schools throughout the South.

Education officials responded with their own constitutional understandings, interpreting the Equal Protection Clause, federal power, and executive authority very narrowly. From their perspective, equal protection principles did not require them to stop funding segregated schools, and they lacked the legal authority to do so even if they wanted to.

This Article probes why administrators took that view. Why did federal officials interpret their constitutional obligations so narrowly in those years--allowing them to continue to support segregated schools long after they were ruled unconstitutional? What leads administrators to read the Constitution in particular ways?

I argue that agency design plays an under-appreciated role in shaping administrators' interpretations of the Constitution. This argument addresses an undertheorized, but key, issue within the rapidly growing field of administrative constitutionalism. Leading works in the area have provided sophisticated, historically rich case studies of agencies' constitutional decision making. For example, in probing agencies' decision making about constitutional equality principles, scholars like Karen Tani, Sophia Lee, William Eskridge, and John Ferejohn have offered nuanced explanations for particular agencies' decisions, rooted in factors like the agencies' distinctive characters, social movement claims, professional ideals, and political pressure from above, to name a few. But scholarship in the area has not generally sought to provide an overarching framework for understanding why agencies take particular approaches to the Constitution, or why those orientations might vary over time or across agencies. The next challenge is to build on the existing literature to construct systematic ways of explaining agencies' approach to interpreting constitutional meaning.

Agency design offers a natural place to begin. Design, as I use the term here, encompasses all the key aspects that are built into an agency from the start, such as the scope of its delegated mission and authority, as well as its organizational structure. Amidst a welter of historical forces, focusing on design helps to clarify how those forces have impacted administrators within specific agencies, insofar as they are especially attuned to some pressures and relatively insulated from others. Such potential pressures include the demands of an agency's client groups, threats to its funding from Congress, top-down directives from the White House and its political appointees, social movements, judicial oversight, the agency career staff's own goals, and almost any other conceivable source of administrative incentives. An agency's independence and strength affects administrators' level of deference to other actors' constitutional interpretations by calibrating how much influence those actors wield over agency officials. An agency's mission and delegated tasks will tend to influence officials' substantive priorities, constituents, knowledge, tools, and practices--most powerfully for the career personnel that serve the agency.

Design features that shape agencies' institutional attributes in this way are also likely to endure. Once personnel, norms, and culture grow up around an agency's initial mission and delegated tasks, those institutional attributes tend to persist. Given such differing legacies--and their “stickiness” over time--we should expect that particular agencies will adopt particular approaches to interpreting constitutional meaning, rooted in their specific institutional incentives and context.

The enduring quality of agencies' institutional “characters” also highlights a key aspect of design for constitutional interpretation. To the extent that agency mandate and structure are politically negotiated and persist, they offer a means by which past constitutional settlements may be entrenched. Traits chosen by legislative drafters can embed specific constitutional principles-- such as a structural orientation toward federalism or a substantive emphasis on individual rights--in an agency's mission, practice, incentives, and norms. The battle to change agency structures thus may be a proxy fight over changing the Constitution. For example, the choice as to whether federal officials directly implement a national program--or instead oversee state and local officials as they make their own operational decisions--reflects a constitutionally tinged decision about the legitimate scope of federal power. Such initial structural decisions are likely to influence federal officials' perception of their own constitutional role into the foreseeable future.

In the Article, I develop this design-based approach to understanding administrative constitutionalism via what social scientists call a “theory-generating” case study, one focused on agency interpretation of equal protection principles. I use the lens of agency design to shed light on the important, yet understudied, era after Brown but before the passage of the Civil Rights Act of 1964, when Federal education officials further reinforced segregation. Drawing on original archival research, I show that the Office of Education's institutional design played a critical role in determining its officials' constitutional positions in these years and their insistence on continuing to fund segregated schools.

Until 1964, the federal Office of Education had been designed not to claim any role in enforcing equal protection norms. The agency's mandates and structure reflected the efforts of politically powerful Southerners and other conservatives to assure that national social programs would expand only under conditions that assured federal deference to state and local prerogatives-- effectively preserving local systems of racial hierarchy.

Over many decades, political actors shaped the Office of Education in ways that led its officials to defer to state and local education authorities, to frame the federal role as one of providing resources for schools without “interference” and to steer clear of any involvement in racial justice questions. The Office's structure and mandates left education officials heavily dependent on Congress and state and local educators, realms where Southerners held pivotal power. In contrast, its administrators were subject to relatively loose controls from the White House and the courts, the branches of government in which civil rights proponents actually had some hope of influence. That structural context of asymmetric political vulnerability led education officials to view racial justice issues as imposing a potentially devastating political cost to their agency--and, indirectly, to their ability to achieve educational goals. Thus they framed policing racial discrimination as irrelevant to, or even in conflict with, the Office's mission of providing aid to education, as well as the agency's long-time policy of “non-interference” in segregation. That “non-interference” policy was grounded in the Tenth Amendment and a vision of a far more limited sphere of federal action.

Nonetheless, civil rights advocates aggressively challenged the Office of Education and its parent department, the Department of Health, Education, and Welfare (“HEW”), to stop funding segregation. Their battle was less newsworthy than the violent confrontations of the civil rights movement's front lines, but it was a crucial one. As James Farmer, head of the Congress on Racial Equality, told Congress, “[w]hen you touch the source of funds for maintaining an institutional system such as segregation, you touch it at its most sensitive point.” Advocates offered a range of legal arguments for withholding funds, suggesting everything from statutory reinterpretation to direct reliance on the Fifth Amendment's prohibition on federal discrimination.

Education officials staunchly resisted, arguing that they were legally compelled to continue funding segregated schools. They also suggested that any alternative approach would result in grave political repercussions, dooming their programs that depended on congressional funding, voluntary participation by state and local school officials, and broader political support. As pressure for action grew by the early 1960s, the Office of Education and HEW gave only slight ground, reinterpreting selected statutes while opposing any broader legislative changes.

Ultimately, when the congressional logjam around civil rights gave way with the passage of the Civil Rights Act of 1964, the Act's drafters responded to federal administrators' reluctance to enforce equal protection principles by revising all federal funding agencies' mandates, as well as the federal education agency's particular relationships to its state and local constituents. Title VI, which barred racial discrimination in federally funded programs, created an entirely new type of civil rights regulatory role for federal administrators--that of halting segregation and other forms of discrimination within the state and local programs they funded. Separately, the often overlooked Title IV provided crucial administrative structure and resources within the Office of Education to support the new regulatory role, by authorizing federal education officials to provide financial and technical support to state and local school officials as they began desegregating their schools.

A dedicated civil rights unit emerged within the Office to coordinate Title IV activities, using Title IV funds while also serving as the backbone for the Office's initial Title VI enforcement. That structure eventually gave rise to today's Office for Civil Rights (OCR) in the Department of Education. Thus, the Act opened up space for the Office of Education to play a significant role in school desegregation beginning in 1965 and paved the way for the more robust, though still politically constrained, role that OCR has played in constitutional struggles since then.

From this perspective, the passage of the Civil Rights Act was not simply a victory over the forces of legislative resistance. The statute also helped overcome executive resistance to enforcing Brown and did so by changing the agency's historical mandates and structures, introducing new civil rights roles and organizations within the executive branch. The struggles of the 1950s and early 1960s reflected both the power of past institutional design to entrench older constitutional frameworks and the key role that statutory and institutional revisions can play in bringing about constitutional change. The long-standing status quo of federal funding without federal rights enforcement gave way to a new regime.

The Office of Education presents an especially apt and important case for studying the factors that drive administrative constitutionalism. From the beginning, the Office and its parent department, HEW, existed in the epicenter of constitutional controversy over federal power, the administrative welfare state, and equality among citizens--as their successor agencies continue to do in the present. Legislative negotiations over the extension of the Office's programs explicitly hinged on disputes over whether the Office would illegitimately extend federal power by enforcing equal protection guarantees for African Americans and other racial minorities. Congress's concerns about administrative constitutionalism thus pervaded the Office's creation and subsequent revisions, constraining its mandates and design.

The Article thus offers dual contributions: it adds to civil rights history while proposing a systematic approach for theorizing administrative constitutionalism. The archival evidence it uncovers sheds new light on the ways in which key federal actors helped sustain segregation before the Civil Rights Act, why they did so, and how they understood and justified their actions. The history also serves a second, broader purpose: as a case study in administrative constitutionalism, which points toward a systemic framework for studying how agencies implement the Constitution.

What broader implications result? As I discuss in Part IV.A, applying the lens of institutional design suggests that attempts to generalize about administrative constitutionalism should be undertaken with caution. Insofar as agencies vary widely in their institutional trajectories and characters, their orientations in interpreting the Constitution are likely to vary as well. That makes sweeping assessments tricky, if not ill-advised. But applying the lens of design does yield at least one larger insight about the democratic legitimacy of administrative constitutionalism. To the extent that Congress and the President shape agencies and their institutional frameworks, so too do they have the ability to shape administrative constitutionalism, sometimes in enduring ways. When, for example, political principals designate a particular set of constituents for an agency, that decision structures the agency's later incentives and decision-making in regard to the Constitution. Though administrative constitutionalism may not always be normatively attractive, it may well be rooted in earlier rounds of democratically legitimate decision-making.

Finally, because the battle to change agency mandates and structures may be a proxy fight over changing constitutional principles and their application, the Article also has forward-looking implications for those pursuing racial equality. In Part IV.B, I note that many parts of the administrative state initially reflected an explicit commitment to an older constitution, one that shielded local structures of racial subordination from federal oversight. I conclude by suggesting that efforts to implement equal protection in the present must necessarily address the enduring effects of those early design choices.

The remainder of this Article proceeds as follows.

Part I examines the federal education bureaucracy's historical design and role.

Part II draws on agency archival materials to reconstruct the Office of Education's constitutional interpretations and its stance toward school segregation in the period before the Civil Rights Act.

Part III evaluates the evidence that the education agency's design shaped its officials' resistance to implementing the equal protection mandate.

Part IV considers the implications of using institutional design as a framework for studying administrative constitutionalism, then situates this history within the larger relationship of the administrative state to racial inequality.

. . .

Revising an agency's mandates and structure can help bring about profound constitutional change. The Civil Rights Act of 1964 altered the Office of Education in fundamental ways, orienting the agency toward a new set of constitutional settlements. Title IV and Title VI expanded federal power over local schools, delegated to the executive branch specific authority to interpret and enforce equal protection principles, and confirmed that at least some constitutional obligations did attach to federal funds. For the Office of Education, the Act triggered the creation of a new dedicated civil rights unit, the writing of new regulations and guidelines, and new relationships with its constituents, as well as with the courts. But that revolution in design and substance was only partial.

Those fighting for racial equality in the present should ask themselves to what degree such institutional interventions have changed past patterns of federal deference to state and local actors rather than prioritizing the Constitution's equality mandates. Because institutional design becomes entrenched and tends to disappear from our consciousness as we take it for granted over time, simply opening up the institutional possibilities for debate is worthwhile. Revisiting the struggles that helped give rise to the current framework for enforcing equal protection thus reminds us: institutional design may matter as much as substantive law--and it is worth fighting for.

Assistant Professor, UC Berkeley School of Law.