Racial Justice and Administrative Procedure

Abstract

This article argues that commemorating the Administrative Procedure Act (APA) should involve accounting for the role it has played in both advancing and thwarting racial justice, as well as the role racial justice advocates have played in shaping its interpretation. The APA was not designed to advance racial justice; indeed, its provisions insulated some of the mid-twentieth century's most racially pernicious policies from challenge. Yet racial justice advocates have long understood that administrative agencies could be a necessary or even uniquely receptive target for their efforts and the APA shaped those calculations. Along the way, racial justice advocates left their mark on administrative law, including an underappreciated role in administrative law's participatory turn. Better understanding the interaction of racial justice and administrative procedure, I argue, would benefit historical and legal scholarship on race, administrative law, and their many underexplored yet consequential intersections.

Keywords: Administrative law, racial equality, discrimination, civil rights, civil liberties, Administrative Procedure Act, APA, policy statement, federal agencies, adjudication, notice-and-comment rulemaking, Black Efforts for Soul in Television, guidance, FCC