Administrative Procedures and Racism

This post was originally published by the Yale Journal on Regulation's Notice & Comment blog. Reprinted with permission.

In 1958, civil rights leaders, including Dr. Martin Luther King, Jr. and Andrew Young, met in New York with Reverend Everett Parker, who was the Director of the Office of Communications of the United Church of Christ. The Office was an advocacy arm of the church, whose members’ commitment to civil rights dated back to colonial times. The civil rights leaders sought the Office’s assistance because of their concern about the biased coverage of the civil rights movement by Southern television stations. After years of litigation, the meeting led to two decisions in the D.C. Circuit (United Church of Christ I & United Church of Christ II) that blocked efforts by the Federal Communications Commission (FCC) to relicense WLBT, a Jacksonville, Mississippi television station, which had engaged in news and other programming that were plainly racist.

The cases are remembered today, if they are remembered at all, for a pathbreaking holding that television viewers had a statutory right to intervene in FCC’s license hearings, an issue that the court treated as standing. But they are important for another reason. After reading the cases some years ago, I set out to find the backstory, which I described in a law review article, and which is recounted in far more detail in an excellent book by Kay Mills. What is painfully evident from taking a look at these events is that racism was deeply imbedded in the organizational culture at the FCC. The Commission bent over backwards to find a way to license WLBT despite its recognition of the station’s biased news programing and coverage.

Richard Rothstein, in his remarkable book, The Color of Law: A Forgotten Story of How Our Government Segregated America, reveals the significant impacts of a similar racist culture at the Federal Housing Administration (FHA), which encouraged white families and persons to buy suburban houses using FHA guaranteed mortgages, but which did not make the same opportunity available to black families and persons. Rothstein demonstrates how the white ownership of houses since the 1950s accounts for much of the wealth gap between races in today’s America.

Regulatory agencies do not appear to be permeated by such overt racism anymore, but structural or institutional racism still exists if bias is built into existing institutions. We tend to think of administrative procedures as being neutral between competing points of view, but as the environmental justice movement (EJ) keeps reminding us, this is not necessarily so. It is no secret, for example, that the rulemaking process is dominated by corporate interests, and the same is true of the lobbying that occurs at agencies. Environmental and other public interest groups are hard pressed to match this advocacy. Less noticed is that the fact that there is little or no participation by marginalized communities in rulemaking, although as the pandemic has taught us our most disadvantaged citizens are the ones that bear the brunt of inadequate government protections. Efforts to reach out and speak to such communities are simply not a regular part of rulemaking practice. True, there is no legal barrier to such participation, but there are considerable structural and economic barriers, which we simply overlook.

Law can do better. For example, the Center for Progressive Reform has recently published a report that I coauthored recommending that Congress establish a private right of action modeled on the citizen suit provisions in some of the environmental statutes to enforce the workplace safety and health regulations promulgated by the Occupational Safety and Health Administration (OSHA). Minority workers are often the most harmed by OSHA’s dysfunction. This report and another CPR report document, for example, that OSHA has entirely failed to protect the mostly minority workers in packing plants from COVID-19—employees who had no choice but to go to work in order to buy food and shelter for themselves and their families.

There is more. A number of public interest groups now recognize the importance of teaching people how to participate effectively in the notice-and-comment process for pending rulemakings and have developed “boot camps” and “toolkits” to help accomplish this objective. More significantly, agencies can be required to reach out to such communities and bring them into decision-making. Similarly, advocacy groups are working to empower individuals to play a greater role in monitoring corporate regulatory compliance, through greater use of “citizen science” projects and other techniques, and to seek accountability for regulatory violations, through participation in citizen suits or by serving as whistleblowers, as the CPR report on a private right of action recommends.

We would do well to remember Representative (D-Mich.) John Dingell’s promise, “I’ll let you write the substance … you let me write the procedure, and I’ll screw you every time.” Those who created the existing structures may not have had this intention in mind, but that does not mean that administrative procedures are not biased against the marginalized communities most in need of regulatory protection. The administrative process can be more inclusive, and it is time, past time really, to have a discussion how to make it so.