Antidiscrimination Laws and the Administrative State: A Skeptic's Look at Administrative Constitutionalism

38 Pages Posted: 3 May 2019 Last revised: 24 Oct 2020

See all articles by David E Bernstein

David E Bernstein

George Mason University - Antonin Scalia Law School

Date Written: May 2, 2019


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. 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 Article. A more limited and therefore practical reform would be for agencies that enforce antidiscrimination legislation to establish an internal watchdog office charged with advocating within the agencies for compliance with the First Amendment and other constitutional constraints.

Keywords: administrative agency, federal agency, First Amendment, freedom of speech, freedom of expression, civil liberties, purposivism, executive branch, nondiscrimination, constitutional norms, Title IX, OCR, Office of Civil Rights, HUD, Department of Housing and Urban Development

JEL Classification: K10, K19, K30, K39, I23, I28

Suggested Citation

Bernstein, David Eliot, Antidiscrimination Laws and the Administrative State: A Skeptic's Look at Administrative Constitutionalism (May 2, 2019). Notre Dame Law Review, Vol. 94, No. 3, 2019, George Mason Legal Studies Research Paper No. LS 19-09, Liberty & Law Center Research Paper , Available at SSRN:

David Eliot Bernstein (Contact Author)

George Mason University - Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8089 (Phone)
703-993-8202 (Fax)


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