Subsidizing Segregation

Article — Volume 104, Issue 5

104 Va. L. Rev. 847
Download PDF

What drives administrative officials to enforce the Constitution in particular ways? This Article recovers a forgotten civil rights struggle that sheds light on that question. Long after Brown v. Board of Education, federal education officials continued to fund segregated schools, arguing that their agency bore no immediate responsibility for implementing the Equal Protection Clause. In the present, that position seems deeply surprising—even at odds with the rule of law. But the administrators did what their agency had been designed to do: extend the federal role in education without thereby extending federal constitutional rights. Congress engineered the federal Office of Education, predecessor to today’s Department of Education, with the goal of providing federal support for schools while avoiding federal enforcement of the Constitution’s equality principles. Legislators and their allies found support for that approach in a different constitutional goal: deference to states’ authority within the federal system. The resulting institutional framework of federal support without federal rights enforcement endured until the Civil Rights Act of 1964 transformed it.

Civil rights leaders’ battle to enforce Brown’s principle against the federal government illustrates a basic feature of administrative constitutionalism: agencies can be designed to serve, or disserve, a broad range of constitutional goals. Any particular agency’s approach to the Constitution will reflect the enduring influence (and variability) of administrative mandate and structure. Those aspects of institutional design are shaped by Congress and the President, often in light of underlying divisions over the Constitution’s mandates regarding federal power, administrative authority, and substantive rights. As a result, an agency’s constitutional interpretations may reflect the outcomes of prior political struggles over constitutional principles, which become embedded in and transmitted through the agency’s specific institutional traits.

Understanding why agencies enforce the Constitution in specific ways thus requires understanding how political actors in Congress, the White House, and beyond have structured those agencies over time. That truth, encapsulated in the struggle over federal subsidies for segregation, also illuminates a key reason that racial segregation and inequality have been so difficult to uproot: much of the federal administrative state was initially designed to coexist with discrimination, not combat it.

Click on a link below to access the full text of this article. These are third-party content providers and may require a separate subscription for access.

  Volume 104 / Issue 5  

Agency Design and the Zero-Sum Argument

By Daniel Richardson
104 Va. L. Rev. Online 136

A Tribute to Gordon Hylton

By Risa L. Goluboff
104 Va. L. Rev. 843

Subsidizing Segregation

By Joy Milligan
104 Va. L. Rev. 847

The Writ-Of-Erasure Fallacy

By Jonathan F. Mitchell
104 Va. L. Rev. 933