Plessy Preserved: Agencies and the Effective Constitution.

• Author: Milligan, Joy

AUTHOR. Assistant Professor, University of California, Berkeley, School of Law. For insightful comments, I thank Kathryn Abrams, Abbye Atkinson, Andrew Bradt, Sean Farhang, Catherine Fisk, Jonathan Glater, Ian Haney Lopez, Sonia Katyal, Melissa Murray, Tejas Narechania, Dylan Penningroth, Claudia Polsky, Russell Robinson, Bertrall Ross, Andrea Roth, Margo Schlanger, Matthew Shapiro, Avani Sood, Erik Stallman, and Karen Tani, as well as participants at the 2018 Berkeley Law Faculty Retreat; the UC Berkeley Center for Study of Law & Society, UC Irvine School of Law, and Vanderbilt Law School faculty workshops; Michigan Law 2019 Junior Scholars Conference; and LatCrit 2017. I am grateful to Rishita Apsani and Toni Mendicino for their excellent research assistance and to the Yale Law Journal editors for all the work they did to bring the Article to publication.

ARTICLE CONTENTS INTRODUCTION 927 I. CONSTRUCTING FEDERAL HOUSING 939 A. Origins 939 B. Political Context 942 C. Oversight 944 D. Legal Latitude 947 1. Substantive Ambiguity 947 2. Procedural Barriers to Review 950 II. HOUSING'S ORIGINAL RACIAL CONSTITUTION 951 A. Racial Equity: A "Fair Share" 951 1. Equitable Employment 953 2. Equitable Participation 956 3. The Conditions that Fostered "Racial Equity" 958 B. Fighting Federally Funded Segregation 960 C. The Politics of Plessy 966 III. PRESERVING PLESSY 972 A. "Things... the President Now Has the Power to Do" 973 B. Distinguishing Brown 975 C. The Federal Role: Never to Dictate or Coerce 984 D. Increasing Constitutional Clarity 987 IV. DELAYING BROWN 991 A. The Gordian Knot 991 B. The Executive Order 994 C. The Irrevocable Subsidy 1000 V. UNCOVERING THE EFFECTIVE CONSTITUTION 1004 A. Seeing Plessy in the Administrative State 1005 1. Law 1006 2. Liberal Accommodation 1008 3. Federal Jim Crow 1009 4. Civil-Rights Activism Obscured 1010 B. Grappling with the Complex Administrative Constitution 1012 CONCLUSION 1017 INTRODUCTION

For generations, African American families lived in the picturesque "Old Fort" area of Savannah, Georgia, a church-filled district near downtown that overlooked the Savannah River. (1) In 1952, Savannah officials, with federal administrators' approval and financial backing, began evicting black families to raze their homes and build low-income public housing for whites only. (2) Represented by Thurgood Marshall and Constance Baker Motley of the NAACP, the families challenged the federal government's involvement in this "effort to rob [them] of their riverfront section on the bluff of the beautiful Savannah." (3)

By 1956, the Justice Department (DOJ) found itself defending the federal housing agency before the Fifth Circuit. In Heyward v. Public Housing Administration, DOJ lawyers did not attempt to justify the agency's approach to segregation. (4) After Brown v. Board of Education, federal judges had quickly made clear that it was just as unconstitutional to segregate public housing as it was to segregate public schools. (5)

Instead, the executive branch denied any legal responsibility for segregation in the projects it approved, supervised, and funded. The federal housing agency simply acted like "a bank which lends money to finance a business enterprise" and could hardly be expected to answer for "the torts which that enterprise commits." (6) The Fifth Circuit disagreed. As the Howard Law Journal reported, its decision "placed upon the [agency] the Constitutional responsibility of striking... segregation from their public-housing policy." (7) Yet the Fifth Circuit's Heyward ruling dissipated with little trace. (8) The case ultimately died on procedural grounds, the Savannah projects remained segregated, and the federal agency continued to approve and fund Jim Crow housing throughout the North and South. (9)

Eight years later, shortly after the passage of the 1964 Civil Rights Act, the town of Huntingdon, Tennessee, moved forward with its plans to build and operate two sets of public housing, one for whites and one for blacks. (10) After complaints were filed, the head of the Public Housing Administration (PHA) wrote a memo explaining why the federal agency felt compelled to fund such de jure segregated housing. (11) The PHA's General Counsel signed off. (12) Despite decisions like Brown and the passage of the Civil Rights Act itself, the officials could identify no governing legal authority that would allow them to refuse to disburse the funds that had already been promised; their only option was to employ their "good offices" to persuade the town to change course. (13)

For decades, the federal agency overseeing public housing operated under an alternative constitutional framework. (14) Even after both its own Justice Department and the Supreme Court renounced de jure segregation, the PHA explicitly encouraged, approved, and paid for segregated housing. (15) Administrators did not simply ignore the Constitution, as interpreted in groundbreaking decisions such as Shelley v. Kraemer and Brown v. Board of Education. (16) Rather, they considered and rejected the new judicial understanding of equal protection in favor of maintaining their own preexisting administrative regime, itself premised on an early, expansionist reading of Plessy v. Ferguson. (17) When the agency formally adopted antisegregation requirements after 1964, its actual practices still conformed to Plessy--not Brown. (18)

Why? And why does it matter now?

The judicial Constitution is not always the one that governs. The effective Constitution may consist of the principles that agencies choose to implement, rather than those courts articulate. (19) Such "administrative constitutions" may be far-reaching and nearly indelible in their impact. (20) At some times, they may trigger needed reforms; at others, they may cause irreparable harms.

In theory, the administrative state's decisive impact on many aspects of national life is well recognized. Scholars have also mapped some agencies' "selective" or "resistant interpretation" of the Constitution, showing that officials may deliberately deviate from judicial doctrine. (21) Yet legal theorists and practitioners still underrecognize administrative agencies' power to construct divergent legal frameworks that can become, for all intents and purposes, the governing Constitution in particular areas--sometimes over long periods of time. Even when administrators' constitutional interpretations operate as the "effective" Constitution, they tend to stay submerged--except insofar as they surface in legal historians' accounts or during litigation challenging agencies' practices. (22)

Instead, lawyers and scholars continue to focus on the work product of the federal courts as a means to understand our constitutional system. Our collective inattention leads us to misunderstand the present and the past, as well as the dynamics of the administrative state. We fail to recognize the legal regime that actually governs us. We also fail to examine how and why administrators adopt and maintain divergent readings of the Constitution. (23)

In this Article, I present a glaring and historically important example of an administrative Constitution that became the effective Constitution over many decades, with effects persisting into the present. Drawing on original archival research, I show that throughout the twentieth century, federal officials constructed, implemented, and defended a "separate but equal" regime in housing. (24) They developed that approach at the federal housing program's origin in the 1930s and continued it long after the Court had abandoned that view of equal protection. (25) Officials were able to maintain a divergent construction of the Constitution because legal doctrine and the agency's institutional structure shielded them from courts' oversight. (26)

Understanding that effective Constitution helps explain the past and present more accurately. The public increasingly recognizes that the federal government played a lead role in creating racially segregated cities and suburbs, but a relatively simple question lingers: How and why did this occur? (27) In lawyers' terms, how did public officials reconcile their support for segregation with conflicting principles from the Fifth and Fourteenth Amendments? (28) Existing accounts of federal involvement in segregation rarely answer that question--though it is one of great interest to lawyers and other students of the administrative state. (29)

Until the 1950s, it was at least arguably permissible under the Supreme Court's precedent to segregate government-backed housing. (30) But by the mid-1950s, it became obvious that the Constitution, as construed in the courts, barred de jure segregation, and that Brown I and II required government officials to remedy the segregation produced by prior practices. (31) From then on, formal judicial rulings and the Justice Department's official legal positions cannot explain why other federal agencies pursued approaches at odds with the new equal-protection regime. What drove those actors?

The agency was not lawless, in the sense that its officials did not simply ignore the judicial Constitution. Nor did they lack the authority to shape agency policy regarding racial questions. Rather, officials had constructed another constitutional regime, which--for reasons deeply embedded in the agency's institutional structure and political environment--they preferred to maintain. In particular, they believed that public housing was not politically viable without racial segregation.

The Plessy framework originated in the agency's progressive, reformist roots. In the 1930s, leading liberals crafted "racial equity" policies for the nascent public-housing program. (32) Those policies echoed Plessy's principle permitting state-sponsored segregation, so long as the resources provided to each group were "separate but equal." (33) By comparison to rampant inequality in other government programs...