The University of Natal in South Africa placed a large advertisement in the October 24, 1971 issue of the New York Times asking "suitably qualified persons" to apply to teach economics, social anthropology, ceramics, voice, engineering, chemistry, and computer science. (1) A few weeks later, the Times ran an ad from the University of Witswatersrand seeking lecturers in philosophy and medical sociology. (2) In December, a "Blue Chip Corporation" advertised for a "General Manager for its South African Subsidiary"; the candidate "[m]ust be willing to relocate to Johannesburg." (3) None of these job ads mentioned race as a qualification--in fact, the "Blue Chip Corporation" claimed to be "An Equal Opportunity Employer" (4)--but given how restrictive South African apartheid laws were, such professional jobs were almost certainly only available to white applicants. (5) And since those designated as white by the South African government were less than twenty percent of the country's population, South African employers turned abroad for eligible applicants. (6)
Anti-apartheid activists of the era saw the publication of such employment ads as evidence of the New York Times' complicity with South African apartheid and pointed to the paper's hypocrisy in running such ads while editorializing against South Africa's white supremacist regime. What's more, they complained, the ads violated New York City's broad Human Rights Law that, as part of its prohibition on employment discrimination, targeted job ads within the city that "directly or indirectly" discriminated on the basis of race. (7) This Article examines how the activists' statutory challenge to these ads precipitated a constitutional struggle in a municipal agency: how anti-apartheid activists worked with the New York City Commission on Human Rights (CCHR) to build a statutory case against the New York Times, how the Times defended itself with constitutional arguments about the CCHR's limited powers, how the CCHR asserted its own broad constitutional authority to regulate, and how New York courts ultimately balanced these statutory and constitutional arguments.
This case study builds on existing scholarship on administrative constitutionalism, kicked off almost a decade ago by Sophia Z. Lee's work on economic regulatory agencies and the Fourteenth Amendment. Lee defines administrative constitutionalism as "regulatory agencies' interpretation and implementation of constitutional law"; others have since defined the term to encompass a wider variety of administrative behavior and statutory construction. (8) Taken broadly, this scholarship asks us to take administrators seriously as constitutional actors, and to tease out the mix of constitutional and statutory interpretation, and of legal, intellectual, and political motives involved in administrative decisionmaking. (9)
This article builds on and complicates this scholarship in several ways. First, as Bertrall Ross notes, administrative constitutionalism differs from regular (read: judicial) constitutionalism at least in part because of the way political pressures and outside groups are built into the administrative state. (10) And as Karen Tani points out, we need more work on the granular details of administrative constitutionalism and on the stakes involved. (11) This particular case study of anti-apartheid activism at a municipal commission describes the winners and losers in a fight over racial discrimination and demonstrates how the municipal commission context, and the presence of external groups, mattered. Here agency officials worked with anti-apartheid groups and their lawyers to coordinate legal and constitutional strategies. Activists drew on the CCHR's enforcement authority while the always under-resourced CCHR likely benefited from the lawyering help.
Second, while most scholarship on administrative constitutionalism has focused on federal agencies, little attention has been paid to state and local agencies' constitutional engagement. (12) While scholars have fruitfully explored dynamics of administrative federalism, their focus often remains on the federal courts, or the activities of federal bureaucrats interacting with state and local governments. (13) If we broaden our focus, however, we can see local officials grappling with some of the same constitutional questions as federal ones--for example, the extent to which the First Amendment limited the CCHR's ability to regulate South African advertising. And in other ways, the institutional dynamics of state and local politics are markedly different from those at the federal level, and state and local administrative law varies accordingly. (14) More specifically, state and local antidiscrimination commissions often operate in ways that differ from federal ones (early CCHR commissioners, for example, volunteered their time (15)), but there is surprisingly little current scholarship on how they operate as institutions and how they grapple with constitutional questions. (16) And unlike work on administrative constitutionalism in federal agencies that explores how administrators have relied on the Fourteenth Amendment's Equal Protection Clause, (17) states' expansive police powers allow states and localities to pass robust antidiscrimination statutes that go beyond the Equal Protection Clause to cover a wide array of public and private action. In the case of the CCHR, a key issue was not whether the Equal Protection Clause imposed affirmative obligations but rather how far a municipal agency with broad statutory authority could go to regulate matters arguably reserved to the federal government by the Constitution. While many have examined how courts have parsed the federal government's preemption of foreign affairs issues, (18) there is little scholarship on how local commissions grapple with such questions. The Constitution protects both the federal government's control over foreign affairs and states' and localities' control over their internal affairs. Here the CCHR considered the scope of federal foreign affairs authority as it defended its own authority to regulate matters it saw as profoundly local.
The CCHR's expansive local powers were attractive to activists who had more enthusiasm than authority. Recognizing the White House's exclusive control over foreign policy, and the Nixon administration's move toward closer ties with South Africa, (19) anti-apartheid activists in the early 1970s explicitly sought alternative paths--including federal agency challenges and litigation in state and federal courts--to challenge American institutions' relationships with South Africa. As pioneering human rights lawyer Gay McDougall later recalled, "some of the early efforts to use the domestic courts to enforce human rights norms were attempts to sever ties between the apartheid system and U.S. entities." (20) Challenging the actions of the New York Times in New York City, under New York City's Human Rights Law, seemed like one way to address the issue of apartheid while avoiding the White House's exclusive control over foreign policy. The legal issues proved trickier than activists had hoped, however. Was the CCHR authorized to root out all discrimination within state boundaries, regardless of the source? Or did striking a blow, however local, against South Africa's apartheid regime necessarily constitute foreign policy? How much deference to administrative expertise was appropriate when matters touched on constitutional questions, and when local commissioners were less expert? Existing scholarship on the constitutional questions in this case has largely focused on judges' resistance to addressing human rights policy through domestic civil rights litigation and judges' questionable use of the act of state doctrine as an avoidance technique. (21) Much less attention, however, has been paid to how lawyers at and for the CCHR, spurred by anti-apartheid activists and motivated by human rights concerns, used statutory and constitutional law to defend the Commission's right to regulate.
The New York Times' job ads were flagged by the American Committee on Africa (ACOA), the leading American anti-apartheid group in the 1960s and early 1970s. ACOA's efforts in this period ranged widely, from disseminating information on conditions in South Africa, to working with civil rights groups to organize demonstrations against banks and businesses invested in South Africa, to pushing back on U.S. involvement in South Africa. (22) Advertising was one target of ACOA's many efforts to make it difficult for South Africa to entice American tourists; in 1969 ACOA had successfully pressured a few publications to refuse ads for South African Airways (SAA), and had convinced the Civil Aeronautics Board that SAA ads that were silent as to apartheid restrictions on tourist sites were in fact deceptive. (23)
In 1970 and 1971, ACOA staffers repeatedly wrote to the Times to protest that its publication of South African job ads violated state and city antidiscrimination laws (which closely resembled each other). (24) New York City's Human Rights Law barred employment ads that "express, directly or indirectly, any limitation, specification or discrimination as to age, race, creed, color, national origin or sex, or any intent to make any such limitation, specification or discrimination, unless based upon a bona fide occupational qualification." (25) Although nothing in the ads explicitly stated that the jobs in question were reserved for white applicants, ACOA staffers argued that the location itself indirectly expressed race discrimination, given South Africa's white supremacist regime and New Yorkers' public knowledge thereof. And municipal law held liable not just the employer publishing or circulating such ads, but also anyone aiding such behavior (26)--so the Times, they argued, was liable.
However, the Times was generally dismissive of ACOA's written requests. (27) A phone...