Disparate Limbo: How Administrative Law Erased Antidiscrimination.

• Author: Ceballos, Cristina Isabel

ARTICLE CONTENTS INTRODUCTION 374 I. THE PUZZLE OF DISPARATE LIMBO 384 A. "Differential Impact" Claims Under the APA 384 B. Race-Related Disparate-Impact Claims Under the APA 391 C. Administrative Law's Erasure of Race 397 II. THE ORIGINS OF DISPARATE LIMBO 401 A. Legislating Disparate Limbo 401 1. Section 601's Implied Private Right of Action 401 2. Section 603's Express Right of Action and APA Review 404 B. Litigating Disparate Limbo 411 1. Council of & for the Blind (1983) 411 2. Women's Equity Action League (1990) 415 3. Sandoval (2001) 424 4. The Current State of Disparate Limbo 427 III. RECKONING WITH DISPARATE LIMBO 428 A. Doctrinal Implications 429 1. Revisiting the [section] 704 Maneuver in Light of Sandoval 429 2. Limiting Women's Equity to Its "Overseer" Scenario 432 3. Potential Objections 434 B. Policy Implications 451 1. A Statutory Mandate for Disparate-Impact Assessments 452 2. An Executive Mandate for Disparate-Impact Assessments 455 3. Illustration of a Disparate-Impact Assessment 457 IV. DISPARATE LIMBO AND THE MAKING OF MODERN ADMINISTRATIVE LAW 460 A. Administrative Law's Selective Empire 462 B. Potential Objections 467 CONCLUSION 473 APPENDIX: FEDERAL AND SUBFEDERAL CATEGORIES 474 INTRODUCTION

If you are a local broadcaster and a new broadcasting policy will force you to buy expensive "bleeping" (2) equipment you cannot afford, you can ask the courts to protect you from the differential impacts of the federal agency's policy. (3) If you are a kayaker in a federally-managed recreation area, and the agency's new management plan will introduce noisy and disruptive jetboaters, you can ask the courts to reconsider the plan's impacts on your subgroup of "non-motorized" watercraft users. (4) And if you are a Hawaiian dolphin in a small pod, rather than a large pod, you can rest assured that the courts will consider harms from sonar to your subpopulation, rather than lumping you in with all the other dolphin pods. (5) In cases like these, courts will entertain claims (6) under the Administrative Procedure Act (APA) by subgroups that were potentially negatively impacted by an agency's facially neutral rule or policy.

Not so if you are a member of a racial, ethnic, or gender group. If you are a human (7) member of a protected class, you will face a steeper climb when you assert an antidiscrimination claim under the APA. (8) While the APA readily entertains some kinds of claims about "differential impacts" - impacts on small broadcasters, (9) nonmotorized watercraft users, (10) or small pods of bottlenose dolphins (11)--judicial interpretations of the APA have mostly stymied claims about racial differential impact. (12) Disparate impact on members of more conventional protected classes--for instance, Black farmers or Latinx (13) schoolchildren--is curiously absent from administrative law. (14)

How did we get here? How did we arrive at a place where the APA will consider claims from subgroups like kayakers and small dolphin pods, but not subgroups like Black farmers (15) or Latinx schoolchildren? (16) The answer requires a deep excavation of the history of the Civil Rights Act of 1964 and judicial interpretation of the relationship between civil rights and the APA, particularly [section] 704's ouster of claims when there is already an "adequate remedy." (17) Performing that spadework, we examine the legislative struggles surrounding the Civil Rights Act, then subsequent APA cases, (18) and finally the Supreme Court's more recent disparate-impact jurisprudence. (19) By carefully tracing this statutory and doctrinal evolution, we show how the APA erased race from its purview. When agencies act in ways that have significantly different effects along racial or ethnic lines, a claim to that effect is cognizable under neither administrative law nor antidiscrimination law. Civil rights plaintiffs sit in what we call "disparate limbo," unable to make out the stringent intent showings required under the nation's increasingly inhospitable civil rights laws, but simultaneously barred from mounting claims invoking the APA's baseline guarantee of nonarbitrariness.

Understanding the many twists and turns of disparate limbo's evolution is important to pinpointing the ways courts, Congress, or the President could remedy the situation. But our project is also a larger one--not merely descriptive and prescriptive, but also richly explanatory. If correct, our origin story can explain how the erasure of race constructed modern administrative law. Doctrinal developments that sit at the field's core--most notably the emergence of "hard look" review and a more intrusive judicial role in administrative governance--may only have been feasible because courts excised differential impact by race from administrative law's domain. And this erasure allowed courts to harden their review, while simultaneously steering clear of increasingly divisive civil rights questions that imperiled courts' growing institutional power and their efforts to cabin and contain the modern administrative state. Our account thus places race--and the scrubbing of antidiscrimination from the APA--at the center of the construction of modern administrative law's empire.

That wider reckoning is long overdue. As the struggle over the future of the American administrative state has accelerated in recent years, scholars have focused attention on other pivotal moments in the creation of modern administrative law, particularly the 1930s and 1940s, when an alphabet soup of agencies sprang up alongside new regulatory powers and legal constraints. (20) Other key contributions step back further in time, to the nineteenth century and the birth of a professional civil service, (21) or earlier still to the Founding, when the American regulatory state was a glimmer in the eye of modern state-builders, (22) in order to understand administrative law's evolution and present-day legitimacy.

Far fewer have reckoned with race as a central explanation for administrative law's modern-day form. (21) Indeed, race is often glossed over in scholarship and teaching, (24) and scholars have only just begun to explore the ways in which racism is deeply entrenched in specific areas like immigration law (25) and Indian law, (26) or to consider the possibility that discrimination is endemic in core agency processes, from adjudication (27) to notice-and-comment rulemaking (28) to costbenefit analysis. (29) Only environmental-justice scholarship has considered administrative law's neglect of antidiscrimination in any substantial detail or highlighted the gap between Title VI and the APA. (30) Finally, a small but growing body of work traces how particular agencies, entrusted with regulatory authority in housing, labor and employment, transportation, and telecommunications, shaped key civil rights protections, including constitutional ones. (31)

All of these lines of inquiry are worthy and welcome, particularly as the nation undergoes a new round of soul-searching in its continuing efforts to live up to its ideals. (32) No previous scholars, however, have seriously grappled with racism's more concrete doctrinal roots within the APA. (33) We do so here, identifying the specific cases and APA mechanisms, namely APA [section] 704, that courts have used to scrub antidiscrimination from American administrative law. Our account, centered on the 1970s through the 1990s, helps chart a new course for thinking about the evolution of the American regulatory state by isolating a critical contingent moment when civil rights and administrative law diverged.

Our Article proceeds in four Parts. Part I lays out the core puzzle by identifying a curious double standard. While administrative law readily acknowledges "differential impact" (34) on subgroups, such as distinct types of animals, park-goers, or business owners, the APA has proven less hospitable to claims of disparate impact on racial subgroups and other conventional protected classes. (35) Courts often turn to one administrative-law provision, APA [section] 704, to channel antidiscrimination claims away from the APA on the theory that some other statute provides an "adequate" alternative remedy. (36)

Part II turns to the origins of disparate limbo. We examine the history of the Civil Rights Act and identify an "original sin," as it were--a critical set of textual ambiguities regarding the interaction between the APA and Title VI, particularly where a federal agency oversees subfederal fundees alleged to be engaged in unlawful discrimination. (37) Congress never clarified the relationship between the two statutes, instead punting difficult questions to agencies and courts. These unanswered questions had far-reaching implications, for they spawned a line of APA precedents unfriendly to civil rights, anchored by the D.C. Circuit's Women's Equity case (sometimes referred to as the Adams case). Penned by then-Judge Ginsburg, Women's Equity ousted civil rights claims under [section] 704 and channeled antidiscrimination away from the APA. Judge Ginsburg's opinion may have made sense at the time given that the Supreme Court had found in Title VI a private right of action--an arguably robust alternative to an APA challenge. (38) But the Court's subsequent revocation (39) of an implied right of action to assert disparate-impact claims under agencies' Title VI implementing regulations raises serious questions about whether Women's Equity still holds, now that the gap between Title VI and an APA challenge has inarguably widened to a chasm. Courts have also problematically extended Women's Equity beyond its original setting, which involved federal-agency supervision of subfederal actors (40) (labeled "subfederal" cases below), to cases that involve only federal agencies (or "federal" cases) and so raise unique concerns.

Whether or not courts are willing to revisit these issues, Women's Equity has already cast a long shadow over the field. The...