A Skeptic's Look at Administrative Constitutionalism

It's probably not a good idea to lead government bureaucrats follow their own idiosyncratic interpretations of the U.S. Constitution

|The Volokh Conspiracy |

I've posted my recent Notre Dame Law Review article, Antidiscrimination Laws and the Administrative State: A Skeptic's Look at Administrative Constitutionalism, over at SSRN. Here is the abstract:

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.

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  1. Hope you’ve included Pearson v Shalalla. It’s a classic of bureaucrats deciding that they’re not bound by the Bill of Rights.

  2. In 2003, the Bush administration OCR, troubled by OCR’s previously
    overbroad guidance, emphasized that for university inaction regarding harassment to be actionable, the alleged harassment “must include something
    beyond the mere expression of views . . . that some person finds offensive. . . .
    [The Office for Civil Rights’] standards require that the conduct be evaluated from the perspective of a reasonable person.”39 OCR’s new guidance
    also noted that, because OCR was part of the government, OCR could not
    order private universities to adopt speech codes inconsistent with the First
    Amendment. OCR regulations, therefore, “should not be interpreted in ways
    that would lead to the suppression of [First Amendment] protected speech
    on public or private campuses.”40 Some universities, public and private, nevertheless voluntarily continued to enforce harassment rules that amounted to
    stringent speech codes.
    Obama administration OCR officials were less concerned with constitutional niceties than were their Bush administration predecessors. In May
    2013, OCR and the Justice Department’s Civil Rights Division sent a join letter to the University of Montana memorializing a settlement to a sexual harassment case brought against the university. The letter stated that it was
    intended to “serve as a blueprint for colleges and universities throughout the
    country.”41 Ignoring Supreme Court precedent, the First Amendment, and
    OCR’s own guidance from the Bush administration
    , the letter declares that
    “sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature,’” including “verbal . . . conduct”, regardless of
    whether it is objectively offensive or sufficiently severe or pervasive to create a
    hostile environment.42

    And this is not considered a scandal.

    1. Not by Democrats, obviously.

    2. Conservative law professor takes a position that policies he doesn’t like are unconstitutional isn’t exactly a scandal.

      1. The Obama administration ultimately acknowledged that this wasn’t the law, and yes, it was scandalous that they purported to believe otherwise until then.

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