Author:Bernstein, David E.

INTRODUCTION 1382 I. EXAMPLES OF ANTIDISCRIMINATION-ENFORCEMENT AGENCIES 1386 IGNORING CONSTITUTIONAL LIMITS ON THEIR AUTHORITY A. OCR vs. Due Process and Freedom of Speech on Campus 1387 B. HUD and Justice vs. the Rights to Speech, Petition, and 1392 Assembly C. State and Local Antidiscrimination Agencies vs. Civil 1396 Liberties II. WHY AGENCIES ENFORCING ANTIDISCRIMINATION LAWS TEND TO BE 1399 INCONSIDERATE OF FREEDOM OF SPEECH A. Institutional Explanations 1400 1. Agencies Increase Their Budget and Authority by 1400 Expanding, Not Contracting, the Scope of the Laws They Enforce 2. Purposivism Encourages Agencies to Resolve Statutory 1401 Ambiguity in Favor of Broad Interpretations 3. Agencies Attract Employees Ideologically Committed to 1403 the Agency's Mission 4. Agency Staff Generally Do Not See Enforcing the 1404 Constitution as Their Job B. Ideological Considerations Specific to Antidiscrimination 1406 Law That Lead Agencies to Neglect Freedom of Speech III. PROPOSALS FOR REFORM 1410 CONCLUSION 1414 INTRODUCTION

One might think that executive branch agencies, as such, should have little if any role to play in establishing the boundaries of constitutional law. Some legal scholars, however, beg to differ. These scholars have increasingly noted and praised the phenomenon of administrative constitutionalism, "the creative interpretation and evolution of legal norms and moral-rights claims by bureaucrats faced with pressure from social movements, often operating beyond or even despite the commands of the President, Congress, or the courts." (1)

Administrative constitutionalism includes the "elaboration of new constitutional understandings by administrative actors, as well as the construction (or 'constitution') of the administrative state through structural and substantive measures." (2) Professor Ernest Young concludes that courts do not resolve most important constitutional questions. Rather, various government actors, including administrators, rely on their own interpretations of constitutional norms and values. (3) These administrators, in turn, may ignore not just Supreme Court precedent, but the text of the Constitution itself.

Prominent historical examples of administrative constitutionalism include the National Labor Relations Board (NLRB) and the Federal Communications Commission (FCC) developing novel antidiscrimination rules not mandated by statute. These rules were premised on the notion that the Constitution protected a right to nondiscrimination in employment in closed shops and in a government licensed communications entity, respectively. (4) The NLRB and FCC enforced antidiscrimination policies even though Congress and the courts studiously ignored the issue, and even though the Supreme Court showed no inclination to apply constitutional equal protection principles to the private actors involved. (5)

Even when courts have addressed constitutional questions, judges may be influenced by the constitutional norms developed by agencies in the relevant area of law. (6) For example, Professor Anuj Desai documents that "it was the post office--not the Fourth Amendment of its own independent force--that originally gave us the notion of communications privacy that we now view as an abstract constitutional principle applicable to telephone conversations, e-mails, and the like." (7) Similarly, Professor Karen Tani has shown that starting in the 1930s, "federal administrators sought to embed a more robust idea of constitutional equal protection into the realm of social welfare, relying on a statute that said nothing about equality or rights." (8) These efforts influenced the Warren Court's forays into constitutionalizing poverty law, such as Goldberg v. Kelly, (9) which announced a constitutional right to a hearing before a claimant's public assistance benefits could be discontinued.

Legal scholars who have examined administrative constitutionalism have often embraced it, with their scholarship sometimes taking on a celebratory tone. (10) Proponents of administrative constitutionalism argue that agencies have several advantages over courts in creating constitutional norms. These advantages include that agencies' notice-and-comment rulemaking process is more transparent than judicial decisionmaking, that agencies have a more deliberative process than do courts, and that agencies are more accountable to public opinion than are courts. (11) A recent article argues that

agencies can embrace the formal rules of constitutional jurisprudence, while deploying those rules in such an expansive or novel way that the justification for those rules is called into question. Administrative action then not only reflects but also refracts our constitutional order, shedding new light on our most basic legal commitments. Administrative practice can in such cases serve as a zone of constitutional experimentation. (12) Of course, one person's heroic agency enforcing its own enlightened constitutional norms, or another person's creative constitutional experimentation, may be yet another person's "deep state," part of a permanent bureaucracy that is a law unto itself, ignoring or evading public opinion, Congress, the courts, and even the President and his appointees. (13)

Nevertheless, some scholars favor a significant role for administrative agencies in enforcing constitutional norms. Professor Gillian Metzger, for example, writes, "[a]gencies are not only well positioned to enforce constitutional norms effectively, but they are also better able than courts to determine how to incorporate constitutional concerns into a given regulatory scheme with the least disruption." (14)

This faith in agencies' capacity to appropriately take constitutional considerations into account is profoundly mistaken. Generalist judges have a clear duty to both enforce laws and enforce constitutional limits on such laws. By contrast, agency staff, whether politically appointed or civil service, tend to see their role as solely enforcing the law. Mission-driven agencies, not surprisingly, tend to adopt a culture in which their paramount goal is to fulfill their mission. Any external constraints on enforcement, including constitutional considerations, are thought best left to the courts, if not ignored entirely. (15)

It is hard to gainsay the merits of federal agencies experimenting with enforcing equal protection norms against monopoly actors empowered by the agencies, as in the NLRB and FCC examples, especially when there is no firm judicial precedent to the contrary. Indeed, Supreme Court precedent on analogous issues arguably supported the agencies' actions. (16) In other contexts, however, agencies may enforce internal norms that conflict with constitutional protections for freedom of speech, raising troubling civil liberties concerns. This has become an especially pressing issue, this Article argues, when agencies purport to be enforcing legislation that prohibits invidious discrimination. This Article discusses why administrative agencies charged with enforcing antidiscrimination legislation while implicitly undertaking administrative constitutionalism tend to be inconsiderate of constitutional limitations on government authority in general, and especially of the limitations imposed by the First Amendment's protection of freedom of expression.

To establish the existence and contours of the problem, Part I of this Article provides context by recounting several detailed examples of how federal, state, and local civil rights agencies have favored broad antidiscrimination enforcement over countervailing constitutional doctrines that impose limits on regulatory authority. (17) These examples include the U.S. Department of Education's Office of Civil Rights' Obama-era attempts to use Title IX to strip university students accused of sexual assault of due process protection and to impose broad speech codes on universities, the U.S. Department of Housing and Urban Development's ("HUD") efforts in the 1990s to penalize neighborhood activists for lobbying against projects HUD deemed protected by the Fair Housing Act, local human rights commissions' threats to punish individuals for otherwise protected speech deemed to cause a hostile environment, and state and local agencies' willingness to prosecute individuals who discriminate in their choice of roommate.

Part II of this Article discusses the reasons why agencies that enforce antidiscrimination laws tend to be oblivious or hostile to constitutionally protected liberties in general and freedom of speech in particular. Part II begins with a discussion of institutional factors common to administrative agencies that tend to lead agencies to expand their power and neglect countervailing constitutional considerations. First, agencies increase their budget and authority by expanding, not contracting, the scope of the laws they enforce. Second, "purposivism," or the notion that ambiguities in statutes should be resolved to further the laws' underlying purposes, encourages agencies to resolve statutory interpretation disputes in favor of broad interpretations of agency authority. Third, antidiscrimination agencies attract employees ideologically committed to their agencies' missions. Fourth, and concomitantly, agency staff (unlike generalist courts) generally do not see enforcing constitutional limitations on government power, or protecting freedom of speech specifically, as their job. Part II concludes with a discussion of political and ideological factors specific to agencies charged with enforcing antidiscrimination laws that make them especially prone to neglect constitutional restraints on their authority.

Part III of this Article suggests solutions that may at least mitigate administrative neglect of civil liberties in the context of antidiscrimination law. Most of these solutions involve broad reforms that would have ramifications well beyond mitigating the problem addressed in this...

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