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The Public's LawOrigins and Architecture of Progressive Democracy$

Blake Emerson

Print publication date: 2019

Print ISBN-13: 9780190682873

Published to Oxford Scholarship Online: March 2019

DOI: 10.1093/oso/9780190682873.001.0001

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The Institutional Architecture of Progressive Democracy

The Institutional Architecture of Progressive Democracy

From the New Deal to the Second Reconstruction

Chapter:
(p.113) 3 The Institutional Architecture of Progressive Democracy
Source:
The Public's Law
Author(s):

Blake Emerson

Publisher:
Oxford University Press
DOI:10.1093/oso/9780190682873.003.0004

Abstract and Keywords

This chapter describes examples of Progressive administration from the New Deal and the Second Reconstruction. This account explores the tension between public deliberation in the administrative process and efficient delivery of the services that make democracy possible. During the New Deal, the Tennessee Valley Authority and the Agricultural Adjustment Administration engaged in highly deliberative forms of land use planning. But these deliberative procedures tended to exclude low-income and minority farmers. The Farm Security Administration, by contrast, provided desperately needed goods and services to poor farmers, but did not generally engage them in administrative policymaking. As the New Deal drew to a close, the Progressive emphasis on participatory modes of administration were codified in a thin form in the Administrative Procedure Act. At the same time, the social impacts of the New Deal agricultural agencies created some of the conditions for the Second Reconstruction. During the Second Reconstruction, civil rights agencies attempted to combine public participation and efficient bureaucracy in new institutional forms. The Department of Health, Education, and Welfare developed broad understandings of the social background for segregation that enabled courts to integrate schools in the South. The Equal Employment Opportunity Commission deliberated with civil rights groups and the courts to develop the disparate impact theory of discrimination. The Office of Economic Opportunity instituted radical forms of public participation in implementing the “maximum feasible participation” requirement of the Economic Opportunity Act.

Keywords:   New Deal, Second Reconstruction, Administrative Procedure Act, Agricultural Adjustment Administration, Tennessee Valley Authority, Farm Security Administration, equal employment opportunity, civil rights, discrimination, segregation

I. Introduction

The Hegelian Progressives crafted a democratic conception of the state. This state would provide the material and institutional requisites for a vibrant public sphere. Social welfare provision, consumer protection, and corporate regulation would guarantee sufficient social equality to underwrite democratic politics. But the Progressives’ state could not truly claim to be “democratic” unless the people themselves determined the content and the format of regulatory protections. The government would have to pursue democratic ends by democratic means. This chapter will show this ideal’s programmatic legacy, from the New Deal through the Civil Rights Era. The diverse administrative arrangements that flourished over this period variously attempted to enact democratic discourse in their procedures, to foster an egalitarian civil society, and to combine deliberative and bureaucratic forms of social provision. By studying how such interventions were conceived and structured, where they succeeded, and where they failed, we can see how the normative tensions instinct in Progressive thought re-emerged in institutional architecture. More than this, these examples help to point the way forward for a Progressive public law in the present. If we are mindful of the internal dilemmas of Progressivism, we should be better positioned to build on its impressive but imperfect handiwork.

Recall how the Progressive ideal was forged in American thinkers’ encounter with German state theory. The Hegelian vision of the state stressed administration’s emancipatory function. Hegel articulated and defended the (p.114) spirit of Prussian administrators who sought to replace the feudal order with the beginnings of a classically liberal society.1 He understood these bureaucrats as bourgeois reformers who sought to free the serfs, institute rights of property and contract, and provide basic public goods and welfare services. The form of emancipation Hegel and the Prussian “universal class” envisioned, however, was not democratic but purely civil and economic. It neither contemplated nor emerged from a popular process of contestation, debate, and participation. Theirs was a paternalistic kind of social reform, relying upon the practical judgment and discretion of administrators to advance Enlightenment social values and the interests of the German middle class. After the failed revolution of 1848, this antidemocratic feature of Hegelian state theory remained deeply embedded in German public law scholarship.

By the turn of the twentieth century, the emancipatory task of administration had fallen by the wayside. The main line of German administrative law scholarship turned to positivism and thus eschewed any immanent connection between the system of administrative law and the political functions it ought to serve. When democracy arrived in Germany with the founding of the Weimar Republic, administrative law and organization did not adapt to the new constitutional circumstance in which it operated. The bureaucracy remained insulated from society, politically conservative, and bound to the authoritarian form of rule inherited from the empire.2 Weber’s account of bureaucracy, centering on formal legality, instrumental reason, hierarchical control, and official obedience was symptomatic of this peculiar amalgam of democratic constitutional forms and hierarchical administrative structures. As political and economic crises shifted the center of constitutional gravity from the paralyzed legislature to the independent executive, administration became equipped with ever more powers, the legitimacy of which could only be grounded in the decisive will of the chief executive.3 The combination of plebiscitary presidentialism, increased administrative discretion, and legislative incapacity in the Weimar Republic thus opened the door for the totalitarian developments that followed. Without a democratic reformation of administration to accompany the shift to democratic constitutionalism, the emancipatory administrative state that Hegel had envisioned was particularly liable to turn into its opposite.

As I argued in chapter 2, the American Progressive adaptation of Hegelian ideas distinguished itself from its German counterpart by stressing the democratic foundations of administrative legitimacy. Du Bois, Wilson, Goodnow, Follett, and Dewey sought to imagine, build, and legitimate an administrative state in which the democratic public would liberate itself from conditions of economic and social domination rather than passively benefit from government benevolence. Like Hegel, these Progressives argued that individual freedom had legal, social, and material requisites that the marketplace could (p.115) not furnish and that the state must somehow provide. And they too saw bureaucratic discretion as a key element of social reform. They departed from Hegel and his German intellectual progeny, however, in insisting that individual freedom entailed the collective self-determination of the people as a whole rather than the merely symbolic representation of such autonomy in the person of a monarch. They therefore outlined how the state could best incorporate, express, and give binding force to the concerns of the public sphere.

There were two distinct, but interrelated visions of how the democratic spirit of administration was to be institutionalized. On the one hand, Progressives stressed the social and material requisites of democratic life. Thus, Du Bois would uphold the work of the Freedmen’s Bureau after the Civil War in ushering in a “dawn of freedom” for southern blacks by providing the very kinds of institutions that Hegel had posited as the foundations of modern liberty: rights of property and contract, marriage licenses, employment, and education.4 Dewey, Goodnow, and Wilson likewise proposed various forms of social legislation that would regulate the economy so as to curtail the excesses of industrial capitalism. This kind of democratic administration differed from the Hegelian Rechtsstaat not in the substance of the services the government would provide but rather in the function these services were thought to serve. The Progressives thought of administration as providing background conditions not merely for individual agency nor merely for the habitual experience of a communal life but, more fundamentally, for the active political engagement of all members of the democratic public in discussing their common problems and determining solutions. Only a materially secure and educated citizenry could hope to take on the task of collective self-government under conditions of rapid economic and social change. The Progressives therefore argued for administrative institutions at the local, state, and national levels to furnish the goods, services, and regulatory functions that would equip the people for active democratic engagement.

On the other hand, the Progressives also aimed at democratic administration in a procedural sense. They sought to create contexts for popular deliberation and participation within the government as a whole and the administrative process in particular. Goodnow thus argued that legislation must control administration so that democratic will would determine the activities of government. Wilson stressed that administration must be “sensitive at all points to public opinion,” arguing that “elections and constant public counsel” would discipline administration to conform to the popular spirit.5 Dewey likewise underscored the need for public consultation in bureaucratic practice, and Follett advocated “experience meetings” where members of the public would contribute their practical knowledge to administrative decision-making.6 The Progressive state they outlined derived its legitimacy not merely from legislative authorization or (p.116) presidential supervision but also from the discursive interaction of the branches of government in fleshing out public purposes, and from the engagement of the public in administrative decisionmaking. This understanding of administration recognized the indeterminacy of legislative norms, the imperfect capacities of executive management, and the limits of judicial competence. It emphasized that the inequalities and antagonisms of civil society undermined the political and judicial branches’ capacity to hear the claims of the people. The Progressives therefore turned to mechanisms that would enable the public to influence administrative deliberations directly.

Though the requisites and contexts for democracy were mutually constitutive, they were also in tension with one another. The contrast between Du Bois’s and Wilson’s assessments of Reconstruction illustrates the point acutely. Whereas Du Bois upheld the Freedmen’s Bureau as an example of bureaucratically led democratization, Wilson saw Reconstruction as the North’s oppressive intervention upon the local forms of rule that existed in the South at that time.7 Seen in the context of his white supremacist inclinations, Wilson’s plea for an administrative state that would be “intimately connected with popular thought” had more sinister connotations.8 Though he treated the national consciousness that emerged from the Civil War as a salutary historical development, Wilson was glad to have seen the socially and politically transformative efforts of Reconstruction stifled. For him, the racist mores of the white public were legitimate expressions of their local, “democratic” culture.

We should take care, however, not to reduce fully the distinction between the Progressive administrative thought of Du Bois and Wilson to their opposite views on racial equality. For they also set out two contrasting visions of how administrative reform should reflect democratic will. Du Bois’s defense of the Freedmen’s Bureau suggested that democratic life required certain universal entitlements, which the state must furnish, irrespective of the corroding influence that these interventions would have on local political control, popular folkways, or majoritarian prejudices. Wilson, by contrast, was more interested in a gradual, reformist kind of Progressive administration, which would draw on and reinforce the local wellsprings of democratic politics and cultivate a common ethic through participatory forms of decision-making. In this respect, at least, his approach to Progressive administration was fully in line with that of Dewey and Follett, who did not seem to share his racial prejudice.

The relevant contrast, for our purposes, is therefore not between a true model of Progressive administration and a false one, but between the conflicting demands for the efficient provision of goods, services, and regulation, on the one hand, and deliberative and participatory techniques of administrative implementation, on the other. Participatory forms of administration promise to legitimate governmental authorities in the eyes of the public they serve, to draw (p.117) on widely dispersed knowledge and insight, and to incorporate the views of affected parties into the administrative interpretation of legislative aims. But the more administration is subject to the critique, influence, and control of the affected public or to the endorsement of the coordinate branches, the greater the costs of providing the requisite goods and the greater the risk that the best organized, most powerful interests will have a decisive say in delimiting the scope of administrative interventions. The social pathologies the Progressive state seeks to remedy always threaten to undermine the democratic integrity of the administrative process by which such remedies are conceived and implemented.

This chapter documents this normative tension as it took institutional shape over the course of the twentieth century. I will describe how New Deal agencies such as the Tennessee Valley Authority and the Agricultural Adjustment Administration sought to provide democratic contexts within the state, providing for the participation of farmers in the administration of land use planning. The Farm Security Administration, by contrast, sought to provide impoverished farmers with democratic requisites. I will then show how, during the Second Reconstruction, the state sought to combine democratic requisites and democratic contexts in different ways. The Department of Health, Education, and Welfare combined formal bureaucratic requirements with intensive deliberation between the executive and the judicial branches to provide educational requisites to African Americans. The Office of Economic Opportunity engaged in expansive public-sphere deliberation, giving citizens significant control over community action agencies. The Equal Employment Opportunity Commission combined deliberation with civil society groups and interventions in judicial discourse to inscribe its critical interpretations of discrimination into binding law.

I do not choose these institutions because they are the only examples of Progressive administration in our political history. Examples of participatory forms of administration abound. In particular, the notice-and-comment process established by the Administrative Procedure Act of 1946 (APA) is the statutory cornerstone of public participation in regulatory policymaking today. The APA requires that, when agencies issue regulations with the force of law, they must “give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation.”9 This requirement has become a routine element of administrative procedure, practiced by agencies ranging from the Environmental Protection Agency to the Federal Communications Commission to the Securities and Exchange Commission. I will touch on this procedure briefly in this chapter and explore it in greater detail in the next. But my aim here is to recover a wider array of administrative practices, which together might expand our conception of the democratic capacities of administrative procedure.

(p.118) I choose examples from the agricultural New Deal because of their ideological links to the Progressive Era. These links show that Progressive concepts of administration were in fact institutionally efficacious. I then turn to examples from the Second Reconstruction to demonstrate that, even after the direct intellectual influence of Progressivism has waned, the impulse toward deliberative democratic statehood continued to be politically vital and socially formative. These examples, which fall outside the usual canon of administrative law scholarship, serve to decenter our understanding of the state—away from technocratic management and toward democratic and emancipatory forms of administrative action.

II. Progressive Administration in the Agricultural New Deal

The contrast between democratic requisites and democratic contexts in Progressive administration was starkly demonstrated in the New Deal’s efforts to regulate and reform American rural society. New Deal bureaucrats, under the influence of Progressive administrative thought, developed participatory and cooperative forms of administration in the Agricultural Adjustment Administration (AAA) and the Tennessee Valley Authority (TVA). While these forums for democratic planning successfully engaged members of the public in interpreting and implementing agricultural reform policies, they almost invariably privileged the interests of upper- and middle-class farmers at the expense of impoverished farm tenants and sharecroppers, who were disproportionately African American. By contrast, the Farm Security Administration (FSA) provided much-needed financial support to poor farmers and was less discriminatory toward African Americans. But the FSA was for the most part not participatory in structure. Rather, it was highly bureaucratic and hierarchical, relying upon the centralized implementation of an egalitarian agenda from the national administrative offices, with very little in the way of local control or deliberative democratic engagement. Thus, the New Deal institutionalized the tension in Progressive thought between the administrative provision of democratic requisites and the construction of democratic contexts within the state.

1. The Tennessee Valley Authority

Among the many innovative administrative experiments of the New Deal, the TVA has long captivated the intellectual imagination. In 1950, Henry Steele (p.119) Commager described it as the “proving ground . . . of a dynamic democracy. Here was tested the broad construction of the Constitution, large-scale planning, the recasting of federalism along regional lines, new techniques of administration and new standards of civil service, the alliance of science and politics, and the revitalization of democracy through a calculated program of economic and social reconstruction.”10 This explicitly Progressive theory of dynamic democracy was hardly recognizable in the text of the TVA Act, but instead grew out of the philosophies and practices of TVA administrators.

The TVA was established as a public corporation by Congress in 1933 to control flooding and support agricultural and industrial development in the Tennessee River Valley.11 It had the power to acquire and lease property, to construct dams and reservoirs, to produce and sell electricity, and to “cooperate with National, State, district, or county experimental stations or demonstration farms, with farmers, landowners, and associations of farmers or landowners” to develop and experiment with fertilizers and erosion-prevention techniques.12

The TVA’s lasting economic contribution to its area of operation and to the national economy as a whole was its infrastructural improvements.13 But the cooperative aspect of its activity has become its most famous ideological feature. The cooperative mandate was interpreted by David Lilienthal, who was a commissioner and later the chairman of the TVA from 1933 to 1946, as a far-reaching authorization of “grassroots” democracy in regional planning: “Working at the grassroots is the surest guarantee of that day-to-day adjustment to needs and aspirations of the people which is the liveliest form of public accountability.”14 In expounding this notion of democratic planning, Lilienthal quoted at length from Dewey: “American democracy can serve the world only as it demonstrates in the conduct of its own life the efficacy of plural, partial, and experimental methods in securing and maintaining an ever-increasing release of the powers of human nature, in service of a freedom which is co-operative and a co-operation which is voluntary.”15 By engaging affected farmers in administrative decision-making, the TVA hoped to bolster its legitimacy and its efficacy, drawing on the knowledge and authority of local agents.

The grassroots ideology, however, concealed more profound social and political conflict as the TVA adapted to its local environment. As Philip Selznick argued in his classic sociological study of the agency, the TVA won support from local elites for its public power program by giving substantive control over its fertilizer programs to politically conservative agriculture departments in state land-grant colleges and their allies in the American Farm Bureau—a lobby for upper- and middle-class farming interests.16 While the farm demonstration programs were relatively participatory and deliberative amongst this agricultural elite, they tended to exclude the voices and interests of poor and minority farmers.17 As James C. Scott notes, the experience of the TVA (p.120) showed that “working through local institutions, when those institutions reflect great inequalities in property, education, income, and political access, means accepting and reinforcing those inequalities.”18 The grassroots approach of the TVA therefore extended only to the greener pastures of the social landscape, leaving its parched tracts untended.

2. The Agricultural Adjustment Administration

Similar dynamics were at work in the Agricultural Adjustment Administration (AAA). The AAA was established within a week of the TVA in 1933 to “relieve the existing national economic emergency by increasing agricultural purchasing power.”19 To address plummeting agricultural prices, the Act provided that the federal government would pay farmers to reduce their output and tax agricultural processors to pay for the subsidies.20 Despite legal setbacks, this was one of the most “successfully institutionalized” parts of the early New Deal, owing in large part to the well-developed administrative capacity of the Department of Agriculture and its links to state and local governments.21

The proposal for production controls was the brainchild of institutional economists such as M.L. Wilson and Rex Tugwell, both of whom were deeply influenced by Dewey’s philosophy of democratic planning and critique of laissez-faire ideologies.22 The AAA not only grew out of Deweyan Progressive thought but also relied institutionally upon a system of administrative federalism that had been developed under the Wilson administration. Wilson signed into law the Smith-Lever Act of 1914, which gave legislative backing to the Department of Agriculture’s education and technical assistance programs.23 These programs worked through the Agricultural Extension Service, which provided federal assistance through a network of state land-grant colleges and county agricultural agents, who were appointed by state extension offices with local advice.24 This federal grant program kept Wilson’s philosophical commitment to a federal state that was responsive to local needs and interests. The extension service also mirrored Mary Follett’s defense of “federalism as the integration of parts,” in which local and national interests would inform one another, as opposed to a false “mechanical federalism,” in which state and federal authority would be categorically separate.25 The extension service, land-grant colleges, and county agents provided the organizational backbone for the drive to reduce farm production under the AAA.26 Local farmers acted as “co-administrators” alongside the county agents, serving on County AAA Committees that determined the production allotments within their jurisdiction.27 Local farmers subject to the adjustment program elected representatives to serve on these committees.

(p.121) In the later, more experimental phases of the New Deal, the extension service continued to provide the foundation for a program of much more comprehensive participatory planning. The Department of Agriculture’s County Land Use Planning Committees were organized by the state extension service and composed of a substantial majority of “representative” farmers, as well as officials from relevant federal and state agencies.28 By 1941 this program had organized almost 200,000 farmers and nearly 20,000 local, state, and federal officials into local committees that developed and implemented land-use, healthcare, and education reforms.29 As Jess Gilbert’s landmark study documents, Progressive officials at the Department of Agriculture set up “a national network of local organizations,” in which “citizens, scientists, and bureaucrats joined together in discussion-based education and action.”30 While this effort sought to modernize rural farming with advanced techniques, the approach was conciliatory rather than oppositional. As M.L. Wilson put it, “the best way to modify a whole cultural system is for the educational processes to work within it, not to attack it broadside. The most effective way to work within any cultural group is to show how a program developed cooperatively by the group and the experts contributes to the solution of the problems of the persons and groups involved.”31

Complementing this local, participatory planning initiative was an adult education program at the Department for extension workers, with lectures on themes such as “individualism, democracy, and social control,” “unity and diversity in society,” and “ ‘progress’ and the philosophy of history.”32 If the influence of Progressive Hegelianism on the agricultural New Deal was not already obvious enough, one course went so far as to explore the question: “Was Hegel right, that the spiritual factors have in the main controlled historical trends, or was Marx right, that it is the physical and economic factors which drag the spiritual and cultural in their wake?”33

For organic intellectuals’ committed to Deweyan democracy and social planning rather than economic determinism, the choice between Marx and Hegel was clear. Reflecting Dewey’s Hegelian critique of classical liberalism in Individualism Old and New, the lecture outline suggested that “ ‘natural rights’ and the ownership of ‘private property,’ . . . served their purpose . . . by securing individualism, but they are fast becoming institutionalized at the expense of social welfare.”34 The lectures thus sought to frame the problems confronting rural society, without dictating to the extension workers any particular solution:

In what is obviously a transition age, will the future be determined by forces beyond our control—by material conditions, or a mass psychology which is largely emotional—or is the human mind capable of controlling (p.122) developments, largely by planning and foresight . . . ? What are the objects towards which we should direct our efforts in order to create a ‘great society’ in accordance with desirable human and social patterns?35

The disciples of Dewey and the inheritors of Wilsonian institutions thus advanced the Progressive Hegelian project of social transformation guided by critical social theory and deliberative democratic engagement.

But precisely because of their reliance on local decision-makers and institutions, the “low modernists” in the Department of Agriculture tended to replicate and in some cases worsen social and economic inequalities within the agricultural economy.36 The extension system through which production controls and local planning programs were implemented gave great discretion to the states in how to implement the program, thus allowing the racial prejudices of southern agricultural elites a free hand.37 The AAA’s local committees in the South were composed of white, propertied farmers who represented the interests of their own class almost exclusively; they failed to enforce the obligation of landowners to distribute a share of federal subsidies to their tenants and, in violation of AAA regulations, evicted already-impoverished black and white tenants from their lands to meet production requirements.38

In the later, more politically Progressive phases of democratic planning, the class bias of the agency was less severe but still real. Many of the midwestern, middle-class intellectuals who developed the program were relatively blind to the issues of class and race inequality that permeated American agriculture.39 More important, the extension service upon which the cooperative planning system was built remained a conservative institution. It favored the dominant agricultural interests of the American Farm Bureau, which the service’s architects believed were better positioned to accrue and convey technical knowledge and productive benefits.40 As a consequence, the use of the extension service as an instrument of planning restricted participation to the white, bourgeois farmer, even while it engaged this group in otherwise exemplary forms of deliberative democratic engagement and provided some ancillary material benefits to impoverished whites and blacks.41

3. The Farm Security Administration

The administrative interventions of the Farm Security Administration stood in sharp contrast to those of both the TVA and the AAA. While the core activities of the FSA were mostly not deliberative or participatory in format, the agency provided essential goods and services to the agricultural underclass. And it (p.123) benefited African American clients more than did the programs that engaged in democratic planning amongst landed farmers.

Like those of the TVA and AAA, many of the FSA’s programs were not dictated in detail by Congress, but were rather the product of administrative creativity and experimentation. The FSA’s institutional progenitor was the Resettlement Administration (RA), which was established by an executive order from President Franklin D. Roosevelt to administer funds appropriated by Congress for “rural rehabilitation and relief in stricken areas.”42 Roosevelt tasked the RA with the administration of resettlement programs for tenant farmers who had been displaced as a result of the AAA production controls, with land-use planning, and with a farm tenant loan program for equipment and purchase of lands.43 The Bankhead-Jones Farm Tenant Act of 1937 gave legislative support for some of the RA’s programs, providing for tenant home ownership through long-term mortgage loans and a host of other rehabilitation measures: short-term loans for livestock and equipment, grants in aid, a debt reduction program, and federal purchase of submarginal lands.44 Following the recommendations of his Committee on Farm Tenancy, Roosevelt then reconstituted the RA as the FSA to administer these programs within the Department of Agriculture.45 Most of the FSA’s funds and efforts went not toward the farm mortgage lending program stressed by Congress but rather toward various rehabilitation initiatives originally conceived by the public officials in the RA, the President’s Committee on Farm Tenancy, and the FSA itself, as well as representatives of the radical Southern Tenant Farmers Union.46

Unlike the TVA and AAA, the FSA carried out these rehabilitation initiatives through a relatively bureaucratic, hierarchical, and centralized structure. Though the farm mortgage program was explicitly structured by Congress to mirror the AAA, with local committees making loan decisions, the FSA did not extend this model to most of its rehabilitation programs.47 In the bulk of its activities, the FSA operated not by soliciting the participation of affected parties in shaping agency policy but rather by providing goods, services, and legal, technical, and organizational assistance to impoverished farmers. In his seminal study of the FSA, Sidney Baldwin observes that FSA administrators “had little faith in the panacea of local administration through committees of farmers, and they viewed . . . federal-state collaboration as an invitation to irresponsibility.”48 Instead, “[t]he central unifying principle in the Washington office . . . was the concentration of effective policy-making and control powers in the hands of the Administrator.”49

This organizational centralization served to permeate the agency with the political purposes of its leadership: to furnish the conditions for democratic equality by lessening the dependency of agricultural tenants upon their landlords. As Keith Kenneth Conkin observes, “The Farm Security Administration . . . was (p.124) a militant defender of the small farmer and laborer. It constantly stressed the lack of economic and social justice for the small farmers who were unable to participate in American democracy, contrasting them with the large farmers who were becoming more and more separate from those at the bottom.”50 The FSA’s official guide for staff, Toward Farm Security, which was distributed to all county offices, stated that the “immediate objectives” of the agency were not only to “relieve the suffering and misery among rural people” and to “increase real income” but also to “weave into the general fabric of community living all the families which are at present gradually forced out of the general community life by their low incomes.”51 Moreover, “[o]f all the Farm Security objectives the most important is the desire, ultimately, to open up the gates of opportunity to all its families on an equal basis with the rest of the rural community.”52 This emphasis on furnishing such material, democratic requisites, rather than maximizing administrative participation, insulated the FSA from the power dynamics and prejudices of the rural political economy to a greater extent than the TVA and AAA. Because of its hierarchical bureaucratic structure and the commitment of agency leaders C.B. Baldwin and Will Alexander to racial equality, the FSA had the best record amongst agricultural programs in serving African American farmers, even though disparities persisted.53

The FSA relied on Dewey to expound its administrative philosophy, just as David Lilienthal had in explaining the philosophy behind the TVA. But the selection from Dewey in Towards Farm Security reveals telling differences in administrative orientation: “The means have to be implemented by a social-economic system . . . for the production of free human beings associating with one another on terms of equality.”54 Whereas Lilienthal drew upon Dewey’s ideas about voluntary “co-operation” in administration, the FSA cited Dewey’s thoughts on the administrative “production” of individuals capable of participation in democratic life. In the agency’s view, “[t]he people who need supervision most, need the Farm Security Administration most.”55 FSA loans and grants were thus accompanied by a fairly invasive process of budget consultation and home visits to ensure that borrowers and grantees were practicing sound household management, as understood by the administration.56

The democratic requisites the agency furnished were not limited to loans, grants, and technical assistance for individuals and families. The FSA also sought to support and to create new forms of social cooperation, which it hoped would prepare their participants future, more transformative social change. In this respect, the FSA approach aligned with the institutional structure of Hegelian ethical life. It provided administrative support not only for property, contract, and the family, but also to forms of corporate membership, wherein farmers could develop a sense of common purpose.

(p.125) The FSA inherited and expanded the RA’s experiments with rural settlement communities, ultimately administering roughly two hundred such settlements. FSA cooperatives were chartered as corporations, in which farmers collectively owned or leased and worked the land with financial support from the FSA and an option to purchase their own plots in the future.57 These collective farming associations would later draw the wrath of conservative members of Congress and their elite agricultural allies, who derided them as “communistic.”58 But the far more extensive programs were cooperatives wherein farmers pooled resources with the FSA’s financial assistance to purchase services or capital goods. The vast majority of the 25,000 cooperatives survived at least until the FSA was abolished in 1946, with 63 percent repaying their loans to the government in full.59 Perhaps the most farsighted of these experiments were the medical care cooperatives, wherein farmers received subsidized loans from the FSA to buy into health insurance pools administered by the agency.60 The program reached 615,000 clients at its peak in 1942.61

The purpose of these cooperative ventures was not simply to provide relief to impoverished farmers, but to inspire a kind of collective social consciousness amongst this social class. As Sidney Baldwin puts it, “the leaders of the agency hoped that such associations would significantly promote a sense of solidarity among the clientele, and weld them into a politically more formidable power base for the FSA.”62 With its support for cooperatives the FSA aimed to build up the economic, social, and political capacity of low-income farmers, so that the FSA and its constituency could reinforce one another’s precarious positions in their respective bureaus and communities. The FSA therefore supported novel forms of social organization amongst farmers, even while it excluded the poor farmer from any significant participation in the administrative decision-making process of the FSA. Whereas the TVA and AAA had fostered deliberative democratic forms of administrative action amongst property-owning farmers, the FSA sought to equip tenant farmers with the economic and social capital necessary to acquire political agency. It furnished the requisites for democratic participation in civil society, rather than providing contexts for democratic participation within the administrative state itself.

If the AAA was the institutional embodiment of Wilson’s plea for democratic participation in administration, the FSA captured Du Bois’s hope that administrative provision could lay the groundwork for the democratic reconstruction of society. In an article on “Federal Action Programs and Community Action in the South,” Du Bois treated the New Deal’s intervention in the southern rural economy as an attempt to establish in public consciousness “a direct connection between politics and industry, between government and work, between voting and wages, such as the South was born believing was absolutely impossible and fundamentally wrong.”63 Du Bois like Dewey and Holmes was (p.126) conscious of the historical development whereby the line between state and society, between a public realm and a private realm, could no longer be drawn categorically. Capturing at once the promise of the FSA and the class bias of the AAA, Du Bois urged

the necessity in the South of facing new problems of democracy, of harking straight back to that attempt made in Reconstruction to include all human beings in the realm of democratic control. If this be not done then the South, still prisoned and controlled by old bars and patterns including not only the color line but the eighteenth century conception of freedom of industrial enterprise, becomes the pensioner of a Federal Government with all the difficulties of local administration in a region where local government is neither democratic nor efficient.64

The New Deal’s interventions had the capacity to sow the seeds of radical political change in the South. But such interventions needed to avoid becoming mired in local governments that were inegalitarian, exclusionary, and lethargic. While Du Bois was inspired at this point in his career by Marxian class analysis, he retained a Hegelian faith in the capacity of a relatively autonomous state to advance the cause of dominated economic and racial classes through programmatic action. Du Bois therefore concluded that, with the most recent relief work of the federal government,

the South will be more compelled to put politics in industry, to reconstruct government so as to give and direct work, and to make that government democratic. I feel that the South is more or less consciously thinking of these things and groping towards a solution; and that this thinking is not so much the work of its intellectual leaders, of its colleges and writers, as of the man to whom the federal government has given bread.65

By providing basic goods and services to the southern poor, the FSA provided nourishment for social change. The precondition for democratic life, where it was as yet stunted, was a bureaucracy that provided for the poor rather than one that privileged their participation in administration.

4. The Death and Life of Progressive Administration

This dream of social transformation was, however, deferred. The demands of the Second World War lessened financial support and public enthusiasm for the most Progressive New Deal programs, at the same time as southern Democrats and propertied farmers increasingly resisted attempts to upset the (p.127) rural political economy. Congressional conservatives and the American Farm Bureau rightly saw the FSA as a threat to the system of white supremacy and economic domination. Appropriations were therefore reduced from 1942 onward, and at the end of the war the FSA was dismantled after a scathing report from the Senate Agricultural Committee on the bureau’s finances and ideological aims.66 Likewise, the democratic planning program of the Department of Agriculture ran into a dead end in the face of stiff resistance from the American Farm Bureau and congressional conservatives; the Department failed to institute many recommendations of the local planning committees and reduced the influence of the Deweyan civil servants.67

The administrative politics of agriculture reflected a broader conservative reaction to the Progressive elements of the New Deal. As agencies such as the National Labor Relations Board and the Securities and Exchange Commission challenged financial and employer interests and government lawyers wielded administrative procedures to the disadvantage of the corporate bar, business elites turned to the values of due process and separation of powers to protect their position.68 Roscoe Pound acted as the foremost intellectual spokesman for this movement, labeling as “administrative absolutism” the “highly centralized administration set up under complete control of the executive for the time being, relieved of judicial review, and making up its own rules.”69 Though Pound during the Progressive Era had been an ardent proponent of legislative rather than common law legal development, he was even then concerned with the proliferation of “executive justice,” in which administrative bodies would take on the responsibilities of courts in settling disputes between private parties.70 Now, as these trends hit full steam, Pound led the American Bar Association in advocating for a firm legislative response to reassert judicial prerogatives.71 In 1939, Congress passed a bill that built upon the bar’s proposals, including requirements of extensive hearing procedures for both adjudicatory orders and regulations and an expansion of judicial control over the administrative process.72 President Roosevelt, however, vetoed this bill. Following the studies of current bureaucratic practices by the Attorney General’s Committee on Administrative Procedure, the Administrative Procedure Act of 1946 (APA) instead provided a general template for administrative adjudication, rulemaking, and judicial review of administrative action.

While the APA represented a modest retrenchment from the heights of bureaucratic discretion during the New Deal, it at the same time endorsed the participatory practices that had been at the heart of Progressive understandings of the state. As the Attorney General’s Committee recognized and the previous chapter demonstrated, public participation in policymaking had been a frequent aspect of administrative procedure since the early twentieth century at agencies such as the Federal Reserve Board, Federal Trade Commission, and the (p.128) Forest Service.73 The Committee recommended “wider use of these methods of obtaining the knowledge, views, and criticism of outside interests in the process of rulemaking . . . in the light of the conscious policy of encouraging the participation of those regulated in the process of making the regulation.”74

The APA built upon this existing practice with its now famous “notice and comment” provisions. It required that when agencies issue regulations, they “give interested persons an opportunity to participate in the rule-making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose.”75 Thus, at the same time as the APA constrained administrative adjudication to mimic judicial proceedings, it licensed and extended the Progressive effort to incorporate the voice of the diffuse public into the administrative process. It codified in statute Goodnow and Dickinson’s proposal to condition judicial deference to administrative judgment on agencies’ provision of public notice and a hearing to affected parties.

The notice-and-comment provision of the APA was nonetheless a thin form of participation relative to the more radical forms of public involvement in agricultural land-use planning, or the iterative, deliberative hearings of the Forest Service mentioned in chapter 2. They required only an opportunity for written comments rather than the kind of local, face-to-face deliberation the most experimental phases of the Progressive Era and the agricultural New Deal had put into practice. In the wake of war with Nazi Germany and at the beginning of the Cold War with soviet communism, the robust theory of the state that had animated Progressive thought had lost its appeal.76 Instead, more conservative, society-centered, and private-rights-regarding approaches to administration came into ascendance. Theories of interest-group bargaining came to supplant the more participatory and socially transformative understanding of the state that the Hegelian Progressives had advocated and the low modernists at the Department of Agriculture had implemented.77 Planning democracy survived only as a shadow of its former self. But this shadow has stretched across the full institutional edifice of the administrative state. In the next chapter, I will suggest how the deliberative democratic capacities of this rulemaking procedure might be deepened, so as better to reflect the transformative spirit of the New Deal.

As the APA codified a threadbare form of Progressive administrative procedure, the substantive interventions of the New Deal provided the rudiments for the future democratization of civil society. The material requisites furnished by the Farm Security Administration, in particular, left significant ideological and institutional legacies. In his groundbreaking treatise on racial problems in the United States, which would be cited by the Supreme Court in Brown (p.129) v. Board of Education,78 Gunmar Myrdal offered a detailed discussion of the FSA’s interventions on behalf of low-income farmers in the South, concluding:

Nobody who has had any contact with those doing field work for the Farm Security Administration can escape becoming impressed by these attempts to rehabilitate farm families. . . . The Farm Security work, after this period of rather diversified experimentation, has provided the kind of practical administrative experience which would be needed for a major reform of land and tenure conditions.79

Though the “major reform” of the sort Myrdal hoped for did not come to pass, its “diversified experimentation” yielded significant material benefits for the emerging civil rights movement and related interventions in the War on Poverty during the 1960s. The FSA resettlements in the rural South created small groups of landed black farmers, as well as safe settings for mobilization, which empowered them politically in the struggle for racial equality.80 Institutions furnished by the FSA provided the economic and social capital necessary to underwrite the Mississippi Freedom Democratic Party, which challenged the white primary in the state, leading to the election of the first black Mississippi state representative since Reconstruction.81 As Spencer Wood has argued, “by helping southern sharecroppers purchase their own farms the FSA planted the seeds of independence that matured for more than a generation, eventually bearing their most bountiful harvest during the civil rights movement.”82 The combination of subsidized landownership and encouragement of solidaristic social practices thus set up crucial bulwarks against the powerful forces of white supremacy that beset the civil rights movement on all sides.83

Nor were the contributions of the FSA limited to landownership in the Delta. The FSA’s rural health operatives were both institutionally and ideologically influential for similar efforts conducted by the Office of Health Administration at the Office of Economic Opportunity (OEO) in the 1960s, as officials modeled their program on the FSA’s medical cooperatives,84 and built upon local institutional capacities nurtured by the FSA.85 Likewise, FSA loans to rural cooperatives became the model for a similar program sponsored by the OEO, despite the resistance of southern congressional conservatives to the idea.86 All of these discrete examples amounted to a substantial institutional legacy for the bureau in furnishing democratic requisites for the rural poor and providing models for future efforts at social transformation.

While the FSA provided institutional infrastructure for the southern civil rights movement, the AAA’s crop reduction programs significantly accelerated black migration from the rural South to northern cities. Incentivized to reduce their output and allowed by landlord-friendly adjustment committees (p.130) to violate tenancy rights, white landowners shed their tenants and invested in capital goods to replace farm labor.87 The result was greater concentration of African Americans in urban ghettos and the beginnings of white flight from the cities.88 The twin arms of the civil rights movement—the struggle to end de jure discrimination in the South and to end de facto discrimination in the urban North—were thus linked to the qualified successes and partial failures of the rural New Deal.

These historical connections go to show how administrative interventions reshape society in ways that facilitate and structure new forms of social order and antagonism. The dynamics of this development are neither the same in every instance nor predictable in advance. But in retrospect, we can see their basic contours. The partial and sporadic democratic requisites furnished by the FSA provided important resources for the blacks who remained in the South and buttressed their successful efforts to end Jim Crow segregation. At the same time, the compromised democratic contexts of agricultural adjustment transformed structures of social and racial domination in the South by uprooting and modernizing the practically feudal system of cotton tenancy. Multitudes of blacks were thus cast off the land and thrust into new urban landscapes, setting the stage for the northern civil rights mobilization and urban unrest. At the same time, the conservative reaction to the New Deal elevated the status of the courts as the guardians of individual rights, which positioned them to play a more active role in protecting the interests of African Americans.89 In the Second Reconstruction, the courts and civil rights agencies would then engage in a constructive dialogue over the meaning and requirements of racial equality.

III. Progressive Administration in the Second Reconstruction

Second Reconstruction was a period of intense social and administrative mobilization, in which the resources of the public and its government coalesced to uproot segregation and promote racial equality. Just as the New Deal had challenged the stable boundaries between state and civil society with its administrative interventions into economic life, Second Reconstruction subjected forms of private economic organization and local government to unprecedented federal regulation in order to protect the entitlements and enlarge the opportunities of African Americans. The federal government in many respects realized Du Bois vision of a “permanent Freedmen’s Bureau” with a panoply of agencies, offices, and commissions tasked with civil rights enforcement.90

(p.131) This emancipatory state built upon the administrative capacities and legal doctrines that had been generated from the Progressive Era through the New Deal.91 Recall that Goodnow had understood that courts and administrative bodies would have overlapping roles in the implementation of regulatory law, as they each had the responsibility to translate legislative will into official deeds. This situation gave rise to qualified judicial deference to agencies’ judgments, as courts sought to respect Congress’s allocation of authority to agencies, and to incorporate administrative policy determinations into their own jurisprudence. The judiciary thus came to accept agencies’ interpretation of law where the proper construction of the statute was within the scope of the agency’s delegated authority, its subject-matter competence, and its experience.92 The civil rights era would extend this judicial adoption of administrative reasoning to new social spheres. Administrative agencies became the fulcrum for inter-branch deliberation, providing administrative rules and guidelines that moved the courts toward more expansive understandings of the ills of racial discrimination and the demands of equal protection. The requisites for democratic equality were furnished in a collaborative process among Progressive legislators, bureaucrats, judges, and civil society groups.

In the War on Poverty, the administrative state provided even more extensive democratic contexts in which excluded groups could participate. These community action programs institutionalized public sphere deliberation in the provision of material requisites for democratic life. Second Reconstruction thus offered another iteration of Progressive administration that recombined democratic ends and democratic means in novel institutional forms.

1. The Department of Health, Education and Welfare

Inter-branch deliberation was essential to the implementation of school desegregation in the South. The Department of Health Education and Welfare (HEW) deployed its statutory authority to comprehend the broader social context in which school desegregation operated. This in turn gave courts the impetus to uproot the dual school system that operated in the southern states.

In Brown v. Board of Education (1954), the Court had explained that education had become a key requisite to democracy: “Today education is the most important function of state and local governments. . . . It is the very foundation of good citizenship.”93 But despite the Supreme Court’s renunciation of the “separate but equal” doctrine, ten years later only 2.25 percent of black children in the former Confederate States and only 10.9 percent in the entire South attended schools with white children, with more than half of the region’s 3,000 school districts still completely segregated.94 This was due to the massive (p.132) resistance of southern localities to desegregation, the federal courts’ adherence to the gradualist logic of integration “with all deliberate speed,” and the limits of constitutional enforcement through private litigation alone.95

With the Civil Rights Act of 1964, Congress authorized a powerful new administrative tool to address the problem.96 Section 601 of the Act provided that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance.”97 To effectuate this requirement, Congress authorized and directed “each Federal department and agency which is empowered to extend Federal financial assistance” to issue “rules, regulations, and orders of general applicability.”98 Because of its use of capacious undefined concepts such as “discrimination,” “exclu[sion],” “participation,” and “benefits,” Title VI gave great discretion to administrative agencies to delineate the scope of the statutory command.

HEW accordingly issued a regulation in 1964 that stated that a school system would be found to be in compliance with Title VI if it “submits a plan for . . . desegregation . . . which the Commissioner of Education determines is adequate to accomplish the purposes of the Act . . . and provides reasonable assurance that it will carry out such plan.”99 This provision empowered HEW officials to determine whether school desegregation plans were adequate or whether districts were shirking their responsibilities. In an effort to win political support for compliance with the regulation, HEW consulted with members of Congress and governors across the nation, in addition to civil rights groups, prior to promulgating them.100 But this effort did not eliminate local resistance, even if it may have for a time blunted vocal opposition from some state and national officials. Many southern states and localities simply submitted rote compliance statements without detailing plans to achieve desegregation; HEW replied that such statements of compliance were insufficient.101 To address southern foot-dragging, HEW elaborated on these requirements in successive guidelines in 1965 and 1966.102 By issuing “guidelines” rather than a “rule,” which by the terms of Title VI would have required presidential approval,103 HEW assumed direct responsibility for its desegregation policy.104 This decision exemplified the Progressive conception of democratic statehood, which untethered administrative legitimacy from the democratic authority of the president and re-anchored it to direct exchanges between the agency and other political actors.

Though the 1966 Guidelines followed judicial precedent in allowing “freedom of choice” plans, which provided that parents could determine which school their children would attend, it went beyond the jurisprudence of the time in emphasizing that “[a] free choice plan tends to place the burden of desegregation on the Negro or other minority group students and their parents. . . . [T]he very nature of a free choice plan and the effect of long-standing (p.133) community attitudes often tend to preclude or inhibit the exercise of a truly free choice by or for minority group students.”105 Accordingly, HEW shifted the burden to the local governments, stating that it would “scrutinize with special care the operation of voluntary plans” and set target percentage increases for black enrollment, which increased inversely to each school’s rate of desegregation in the previous year; the Commissioner reserved discretion to reject such plans if he “concludes that such steps would be ineffective.”106

The Guidelines’ recognition that “community attitudes” and the “burden” that freedom-of-choice plans placed upon minorities tended to “inhibit . . . truly free choice” was a normative judgment and not merely a search for nails by a hammer-wielding agency.107 HEW’s approach to these problems harkened back to the Progressive Hegelian critique of classical liberalism, emphasizing that individual choices occur within a social landscape and that such choices cannot be truly free in circumstances where the community does not recognize the equal moral and political status of all of its members. HEW officials arrived at this conclusion not through the direct influence of Progressive thought but rather through the encounter between civil rights ideologies and administrative experience. Based on their previous evaluations of voluntary plans, HEW staffers came to realize that the mere removal of legal barriers to integration would be insufficient to establish real educational freedom for southern blacks.108

In addition to this pragmatic experience, HEW officials were motivated by a moral understanding of the American political tradition. Derrick A. Bell Jr., who was Deputy Director of the Office of Civil Rights (OCR) at HEW from 1965 to 1968, stated that the “morality aspect” of Title VI and its implementation at HEW “should not be overlooked. Behind American institutions—law, statutes, legal precedents in case rulings—lies a tradition[], at least in theory, of ordering society according to basic principles of morality, fairness, justice. This is so despite patent betrayals of principle in [the] relationship between the races.”109 At OCR, Bell, Peter Librassi, David Seeley, Elaine Heffernan, and other staff put this general moral consciousness to work as they sought to understand and to reconstruct the social spheres in which black students and their families made educational choices.110 Bell and Librassi, who directed OCR, were both ideologically and institutionally aligned with the civil rights movement and brought its ethos to their work in the Department.111 Their ideals of freedom, fairness, and equality were synthesized with administrative experience. This encounter between universal norms and their particular social application produced new understandings of what those ideals meant and required: not merely de jure desegregation, but a more thoroughgoing transformation of southern civil society along racially egalitarian lines.

With its innovative Guidelines, HEW stepped beyond contemporaneous judicial precedent to establish a new, results-oriented test of school district compliance.112 (p.134) The courts followed HEW’s lead, as the Fifth Circuit, beginning in Singleton v. Jackson Municipal Separate School District (1965),113 relied on Department guidelines to determine whether schools districts were maintaining segregated systems in violation of the Fourteenth Amendment.114 In explaining the court’s deference to HEW’s administrative standards, Judge John Minor Wisdom expressed a discursive understanding of the separation of powers:

We attach great weight to the standards established by the Office of Education. The judiciary of course has functions and duties distinct from those of the executive department, but in carrying out national policy the three departments of government are united by a common objective. There should be a close correlation, therefore, between the judiciary’s and the executive department’s standards in administering this policy. Absent legal questions, the United States Office of Education is better qualified than the courts and is the more appropriate federal body to weigh administrative difficulties inherent in school desegregation plans.115

Judge Wisdom recognized that administrative agencies and courts had a special relationship when it came to the implementation of public rights, such as the right of the public established by Title VI to non-discrimination in the distribution of federal education grants. The branches were here “united by a common objective,” with the administrative agency playing the role of primary interpreter of statutory norms.

Judge Wisdom’s constructive, deliberative understanding of the separation of powers was reminiscent of Justice Frankfurter’s statement that “[c]ourts and public agencies are not to be regarded as competitors in the task of safeguarding the public interest. Courts no less than administrative bodies are agencies of government. Both are instruments for realizing public purposes.”116 The courts would ensure that administrative interpretations were within the boundaries of the law; if they were, courts would be prepared to give these administrative determinations binding force and elaborate on the social judgments administrators reached.

HEW’s critique of socially constrained individual choice fundamentally shaped not only the courts’ interpretation of the Civil Rights Act, but of the Constitution itself.117 As the judiciary gave great weight to the judgment of the agency in its interpretation of the very meaning of Title VI, the courts and the agency engaged in inter-branch dialogue to articulate the public purposes of non-discrimination and equal protection. The lower federal courts did not replace spiritless number-crunching with social-theoretic values of their own making but rather fleshed out, enforced, and constitutionalized concepts of (p.135) freedom and social domination that HEW officials had previously articulated in their internal deliberations and administrative guidelines.118

2. The Equal Employment Opportunity Commission

Administrative efforts to address discrimination in the labor market combined deliberation among the legislature, the agency, and the courts with direct exchanges between the agency and the public sphere. Through these exchanges, the Equal Employment Opportunity Commission (EEOC) would craft powerful understandings of discrimination that continue to shape legal doctrine today.

As the 1963 “March for Jobs and Freedom” demonstrated, members of the civil rights movement saw an immanent connection between legal and material equality, with marchers carrying signs demanding “equal rights NOW!” alongside “jobs for all NOW!” side by side.119 Freedom and employment were not seen merely as independent goods but as interrelated “promises of democracy.”120 Title VII of the Civil Rights Act of 1964 sought to make one of those promises real by declaring: “It shall be an unlawful employment practice for an employer . . . to fail or to refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”121

While it was clear Congress sought to prevent intentional and explicit discrimination, it was unclear whether discrimination “because of” an individual’s race might be read to include employment practices with discriminatory effect but lacking in explicit racial animus.122 The scope of the prohibition would be shaped through a process of inter-branch elaboration between the courts and the agency Congress established to implement Title VII: the EEOC. EEOC’s powers were extremely limited. Because congressional Republicans wanted to avoid the creation of another National Labor Relations Board with adjudicatory powers, they demanded the Commission have only technical assistance and complaint investigation functions. EEOC nonetheless served as a site for civil rights mobilization. The NAACP Legal Defense Fund strategically inundated the office with employment discrimination complaints, with hopes of showing the need for more potent legislation.123

EEOC responded by issuing guidelines that interpreted its anti-discrimination mandate expansively. The Commission “reasoned that it is an unlawful practice to fail to or refuse to hire, to discharge, or to compensate unevenly, or to limit, segregate and classify employees on criteria which prove to have a demonstrable racial effect without clear and convincing business (p.136) motive.”124 The Commission’s experience with discrimination complaints and its collection of racially disaggregated data on employment showed that employment tests had a particularly negative impact upon black employment. Though Title VII specifically stated that it would not “be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test,”125 the EEOC issued a guideline stating that the Commission “interprets ‘professionally developed ability test’ to mean a test which fairly measures the knowledge or skills required by the particular job or class of jobs which the applicant seeks. . . . The fact that a test was prepared by an individual or organization claiming expertise in test preparation does not, without more, justify its use within the meaning of Title VII.”126

EEOC’s interpretations of Title VII were motivated by its critical evaluation of the social context in which it operated rather than a perhaps futile search for the “true” congressional intent. As EEOC attorney Alfred Blumrosen later put it, “the legislative history set limits beyond which administrators could not go in carrying out the statutory mandate, but it did not dictate the course of administration. . . . This view of legislative history requires the administrator to develop ideas, policies, and procedures which derive from an informed understanding of the dynamics of the social problem and the role of government in its resolution.”127 EEOC’s experience with the problem of black exclusion from the labor market over the first three years of its existence would convince it to shift from an individualist to an institutional, systemic understanding of the problem. EEOC Commissioner Samuel C. Jackson thus observed that

[d]iscrimination is becoming less often an individual act of disparate treatment flowing from an evil state of mind. Discrimination is more institutionalized—the application of a system of personnel selection, assignment, promotion, layoff, transfer, or discharge. We at EEOC have reasoned that it is unlawful practice to fail to hire or to refuse to hire, to discharge or to compensate unevenly, or to limit, segregate, and classify employees on criteria which prove to have a demonstrable racial effect.128

Chairman William H. Brown III likewise stated in an EEOC public hearing in 1970 that “discrimination is a condition of pervasive exclusion. It does not matter whether exclusion is the result of a deliberate act of discrimination or the maintenance of a traditional community pattern of employment or the perpetuation of past discrimination.”129 EEOC leadership in this way interpreted discrimination to mean not only making decisions consciously on the basis of race but a broader condition of social “exclusion.” This was a concept of racism that concerned not primarily individual prejudice but rather the social power of dominant groups and its manifestation in the structures of society. Equal (p.137) employment meant the empowerment of minorities against an entrenched racial hierarchy.130

EEOC’s interpretation was not the isolated work of bureaucrats but was rather a synthesis of official practical judgment, information gathering, and input from regulatory beneficiaries. In November 1965, EEOC announced that it would require all employers with over one hundred employees—118,000 in all—to submit “EEO-1” reports on their minority hiring practices.131 EEO-1 reports assembled data on employment disaggregated by race and sex. Such reporting requirements were adopted after a White House conference where some business representatives expressed concern that the requirement was overly intrusive, and some civil rights advocates worried that reporting on the racial identity of employers might actually enable further discrimination.132 EEOC published its reports, revealing highly unequal patterns of employment, particularly in white-collar jobs.

EEOC employment reports also served as the catalyst for a series of hearings with employers in different industries and regions to shed light on unfair employment practices and encourage voluntary compliance with Title VII. The hearings created a setting for further public reflection on the meaning of the nation’s commitment to racial equality. The 1968 New York City hearings on white-collar employment were perhaps the most successful of these meetings. The goals of hearing were to “focus public attention on the problem of discrimination” and to “serve notice on all concerned of EEOC’s determination to exercise its legal authority imaginatively and aggressively” and “to discover, and lay a basis for, Commission action to remedy entrenched discrimination practices in white collar hiring and upgrading.”133 The hearings gained significant publicity, with a front page New York Times article declaring “Business Job Bias in City Is Charged” and citing the Commission’s finding that “56 of 100 major corporations in New York City ‘had not a single Negro serving as official or manager.’ ”134 EEOC Chairman Clifford Alexander, Jr. also observed that a few firms had indeed hired African Americans and Puerto Ricans for white-collar jobs; this, he argued, undermined the claim that there were no viable minority candidates for such work.135 Herbert Hill, labor secretary for the NAACP, complimented the EEOC’s hearing for having exposed the “rigid pattern of exclusion” in New York’s white-collar employment market.136 EEOC thus provided both the information and the forum to rethink the nature of discrimination—to understand racial inequality not merely as a problem of intentional malice but also of systemic barriers.

In all the EEOC’s activity, the opinions and interests of civil rights organizations and their clientele received particular attention. As Luther Holcomb, Vice-Chairman of EEOC from 1965 to 1971, attested, the Commission treated the NAACP and its president Roy Wilkins as a “partner,” and “the NAACP and the (p.138) Urban League played a major role in the development of the EEOC.”137 But the EEOC was in no sense captured by civil rights groups, as historian Hugh Davis Graham has suggested.138 Its staff was not unanimously aligned with civil rights organizations,139 and its statistics-based approach to identifying and remedying discrimination was initially resisted by some members of civil rights community.140 Eventually, however, EEOC and civil rights organizations “collaborate[d] . . . in pursuing race-conscious remedies for employment discrimination in a variety of local-level forums.”141

The option had been open to EEOC to take the path of least resistance—routine processing of complaints according to the intent-based understanding of discrimination that Congress had unambiguously sanctioned. But EEOC officials felt the obligation to take a more proactive approach. In its effort to find a solution to the problems demonstrated in the avalanche of employment complaints registered with the Commission, EEOC had to rework the intentional understanding of discrimination initially embraced by civil rights groups into an effects-based, structural perspective. The eventual embrace of this turn in the meaning of discrimination by the civil rights community should not be read as a capitulation to administrative pragmatism. It was rather the result of the dialogic process Dewey and Follett had envisioned: arguments advanced in the public sphere interacted with the judgment and expertise of administrative officials to forge new solutions to pressing social problems.

The critical judgments that emerged from the EEOC’s public-sphere interactions proved crucial in a landmark Supreme Court case on employment discrimination law: Griggs v. Duke Power (1971).142 Griggs was an employee suit against a company that had “openly discriminated on the basis of race” prior to the passage of the Civil Rights Act, and had subsequently introduced high school education and testing requirements for many of its departments.143 The tests the company used were professionally prepared in an apparent attempt to comply with section 703(h) of the Civil Rights Act, which allowed the use of certain “professionally developed ability tests.”144 The Supreme Court rejected the lower court’s determination that the tests were permitted under the Act because there was no “showing of a racial purpose of discriminatory intent.”145 On the contrary, the Court held that

the Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes can not be shown to be related to job performance, the practice is prohibited.146

(p.139) To reach the conclusion that the Civil Rights Act targeted racially unequal consequences of employment practices and not merely discriminatory intent, the Court explicitly relied upon EEOC guidelines: “The Equal Employment Opportunity Commission, having enforcement responsibility, has issued guidelines interpreting §703(h) to permit only the use of job-related tests. The administrative interpretation of the Act by the enforcing agency is entitled to great deference.”147

EEOC’s decision to issue testing guidelines, and the doctrine of judicial deference to administrative interpretations, therefore led to a broad construction of the statute. In adopting the EEOC’s interpretation, the Court applied the persuasive force of a previously non-binding administrative opinion, finding that the Commission’s Guideline “comports with congressional intent.”148 The Commission thus deployed its powers of rational argumentation, rooted in discourse with the public sphere, to expand the power of the courts to redress discrimination in the absence of direct evidence of intentional bias.

3. The Office of Economic Opportunity

The War on Poverty was administered with unprecedented public participation. The Office of Economic Opportunity’s decentralized and collaborative approach supported the development of the urban black public sphere and channeled social unrest into political mobilization.

Congress had passed the Economic Opportunity Act of 1964149 in response to growing public and presidential concern about “poverty in the midst of plenty” and unrest in urban ghettos.150 While the Economic Opportunity Act explicitly targeted poverty and benefited poor whites as well as blacks, it was widely understood at the time as an integral element of the civil rights struggle.151 President Johnson certainly considered civil rights and the war on poverty to be interconnected, as he referred explicitly to the economic opportunity programs in his speech presenting the Voting Rights Act in 1965:

The bill that I am presenting to you will be known as a civil rights bill. But in a larger sense, most of the program I am recommending is a civil rights program. . . . Because all Americans just must have the right to vote. . . . But I would like to caution you that to exercise these privileges takes much more than legal right. It requires a trained mind and a healthy body. It requires a decent home and a chance to find a job, and the opportunity to escape from the clutches of poverty.152

(p.140) Johnson understood the connection between democratic requisites and democratic contexts: one cannot effectively participate in democratic life if one does not have the economic and social wherewithal to do so.

The Economic Opportunity Act established the Office of Economic Opportunity (OEO) in the Executive Office of the President, thus locating the War on Poverty’s command center outside of and above the established departments and government agencies. While providing for rural rehabilitation loans similar to FSA programs, job training, and employment incentives, the core of the Act provided that OEO would approve and provide grants to “community action programs” (CAPs) in cities and other localities to develop and implement comprehensive anti-poverty programs.153 Congress defined a “community action program” as a program that “provides services, assistance, and other activities of sufficient scope and size to give promise of progress towards the elimination of poverty or a cause or causes of poverty”; that was “conducted administered by a public or private non-profit agency”; and that was “developed, conducted, and administered with the maximum feasible participation of residents of the areas and members of the groups served.”154

The “maximum feasible participation” requirement would become the most contentious and politically significant aspect of the War on Poverty. The language was drafted by the President’s Task Force in the War on Poverty.155 Members of the Task Force thought the phrase had numerous, overlapping meanings, including coordination between local government and private organizations, symbolic or real involvement of the poor in program administration, and support for transformative political action.156 It was drafted as an ambiguous phrase to allow administrative flexibility later on.157 Daniel Patrick Moynihan, however, subsequently argued that the phrase “was intended to do no more than ensure that persons excluded from the political process in the South and elsewhere would nonetheless participate in the benefits of the community action programs in the new legislation.”158 He thus took the more expansive form of community action that OEO in fact implemented to depart from legislative intent.

Moynihan’s interpretation, which has dominated scholarship on the community action program, not only differs from the admittedly ambiguous intent of its drafters, but, more important, from statutory text and legislative history. Moynihan neglected to mention that the Act required that community action programs be “developed, conducted, and administered with maximum feasible participation of the residents of the area and members of the groups served.”159 This multidimensional participation requirement plainly contemplated more than participation in the benefits. Nor did the legislative history support his reading. The Report of the Senate Committee on Labor and Public Welfare (p.141) stated that “it is expected the widest possible range of community organizations will participate.”160 Likewise, the Report of the House Committee on Education and Labor claimed that the community action program was “based upon the belief that local citizens know and understand their communities best and that they will be the ones to seize the initiative and provide sustained, vigorous leadership.”161

“Seize the initiative” is precisely what they did. When mayors and other local governments proposed CAPs that provided very little or no representation to minority and impoverished residents in the governance structure, they met with a swift backlash from civil rights organizations.162 OEO responded to the protests of the newly organized urban poor by interpreting the statutory requirement of maximum feasible participation program broadly, requiring in guidelines that one-third of the governing boards be chosen by “traditional democratic approaches and techniques.”163

These community action agencies served to support the urban black public sphere. In Harlem, for example, the HARYOU-ACT community action agency sponsored Black Arts poet Amiri Baraka’s “school of cultural history,” which taught the “political philosophy of the black man in America,” as well his street theater productions, which drew audiences in the thousands.164 J. David Greenstone and Paul E. Peterson argue that, in cities that saw destructive and violent unrest in the black communities, “community residents active in CAPs worked to focus and to make concrete those demands which rioters articulated.”165 In these and similar contexts, such as in Syracuse and Newark, the community agencies were quite radical, serving as rallying points for direct and sometimes hostile challenges to the local government and OEO itself.166 Even in these cases, however, “the activity of the relatively large number of blacks involved in the more participatory CAPs involved concrete demands articulated within the framework of the existing political regime, even though these activists sought major social transformation, namely the elimination of racial inequality.”167 In most other cases community action agencies combined strategies of conflict and cooperation with local government and social service agencies, eventually retreating into more conventional roles of service providers and neighborhood advisory boards for welfare agencies.168

The Community Action Program thus aimed both to furnish democratic requisites and to provide democratic contexts within the administrative process. This stood in contrast to the New Deal, when administrative contexts for deliberative democracy had excluded impoverished and minority farmers, whereas agencies that provided the requisites for democratic participation had not included the poor in the decision-making process. The War on Poverty, instead, sought to incorporate impoverished and minority citizens into the (p.142) administrative apparatus of a program that would provide them with benefits. It synthesized the two dimensions of the Progressive state.

IV. Assessing the Administrative Legacies of the Second Reconstruction

The administrative implementation of Second Reconstruction saw new configurations of the twin Progressive requirements of providing the requisites for a democratic society and creating contexts for democratic participation within the government. HEW’s efforts to provide educational requisites through school integration primarily took the form of inter-branch deliberation: it mediated between the broad norms established by elected representatives and judicial judgments. EEOC combined inter-branch deliberation with public sphere engagement in an effort to provide economic requisites to minority participation in democratic life. OEO sought to synthesize democratic ends with democratic means, fostering public sphere deliberation over the control and content of the anti-poverty program. In this section, I review the legacies of these administrative efforts. I conclude that in the case of inter-branch deliberation, the provision of democratic requisites is more likely to be sustained if courts explicitly engage with and adopt agencies’ critical judgments. This history also suggests that the creation of democratic contexts within administration will not efficiently furnish democratic requisites without significant bureaucratic support, supervision, and training.

1. Community Action: Political Empowerment and Economic Poverty

The OEO’s community action program sought to combine democratic requisites and democratic contexts by giving excluded, low-income African Americans a significant say in program implementation. This synthesis proved imperfect, however. On the one hand, community action succeeded in increasing black political power at the urban level. This process was a symbolic, ideological struggle, in which the discourse of “maximum feasible participation” mobilized, challenged, and altered social roles in urban politics.169 The urban public sphere was transformed by the new claims African Americans could raise to full membership in the local political community. OEO’s support for grassroots black organizing not only enabled urban blacks to thwart some of the most disastrous attempts at “urban renewal” in the Model Cities program170 (p.143) but also led to increased black political representation at the local and national level.171

Although community action succeeded in facilitating black political organization and representation, it had only meager immediate effects on the material condition of impoverished Americans.172 Because of a failure to train or prepare local leadership for programmatic responsibility, community action agencies were ill-equipped—financially, organizationally, and professionally—to effectively deliver desperately needed material support to the communities they represented.173 Those programs that succeeded and became an entrenched part of the welfare state, such as Head Start, were not primarily the product of input from community members but rather were contrived at the national level.174 While the community action agencies attempted to overcome the tension between democratic contexts and democratic requisites, the conflict between efficient implementation and the inclusion of all segments of the public in decision-making thus re-emerged. Because it dealt with many of the most dominated, excluded, and under-resourced people, “maximum feasible participation” imposed significant transaction costs for the allocation of programmatic benefits. The Economic Opportunity Act’s core concern with economic poverty, as opposed to black political empowerment, likely would have been addressed better through a conventional, bureaucratic allocation of goods and services to the poor.

The War on Poverty is therefore to be credited with attempting, more so than any government program in the past, to reconcile the demands for democratic requisites and democratic contexts. Not all the blame for its insignificant effects on economic poverty should be cast on its participatory process: the failure to provide requisites was as much a function of the paltry resources dedicated to the program as of its inclusive administrative structure.175 But the example of the OEO goes to show that conflicts between administrative efficiency and deliberative democratic legitimacy are difficult to fully eliminate.

The challenge is to develop administrative forms that, in the spirit of the Community Action Program, attempt to combine democratic contexts and democratic requisites in untried but promising institutional shapes. Greater technical and administrative support, combined with more cabined discretion for community action agencies, might have increased the success of the program. If OEO had done more to provide bureaucratic staff to community action agencies and to train local leaders to administer the program, and if it had provided such agencies with a clear menu of policy choices, it might have provided democratic requisites more efficiently while simultaneously serving as a venue for political empowerment. Though the tension between democratic requisites and democratic contexts cannot be eradicated, it (p.144) can be better mediated through administrative structures that are alive to the genuine conflicts between them.

2. Disparate Impact and the EEOC: Judicial Deference and Institutional Durability

The institutional consequences of the inter-branch deliberations of EEOC and HEW in providing democratic requisites show the importance of genuine discourse between agencies and courts rather than formulaic deference to technocratic expertise. Though the concrete effects of EEOC policy on black unemployment rates are difficult to discern, EEOC policy enhanced the quantity and likelihood of success in discrimination suits, at least up until the early 1980s.176 These gains partially receded during the Reagan administration. Under the leadership of Clarence Thomas, EEOC rejected the institutional approach to discrimination developed by the early Commission and reverted to a more narrow focus on cases where direct evidence of intentional discrimination was available.177 An increasingly conservative Supreme Court subsequently rolled back the expansive, effects-based understanding of discrimination the Court endorsed in Griggs.178

EEOC’s critical evaluations of social context endured this period of conservative reaction, however. In response to the Supreme Court’s narrowing of EEOC and the Griggs Court’s effects-based interpretation of discrimination, Congress passed the Civil Rights Act of 1991.179 The Act states as a “finding” that the “the Supreme Court[] . . . has weakened the scope and effectiveness of Federal civil rights protections.”180 The purpose of the Act is therefore to “codify the concepts of ‘business necessity’ and ‘job related’ enunciated by the Supreme Court in Griggs” and to “confirm statutory authority and provide statutory guidelines for the adjudication of disparate impact suits under Title VII.”181 The Act accordingly reinstituted a modified form of the disparate-impact theory developed by EEOC and the Griggs Court. The legislation was the result of a decade-long struggle among a conservative executive, an increasingly reactionary Supreme Court, and civil rights groups and their liberal allies in Congress.182 EEOC’s innovative, institutional understanding of discrimination had thus won the full-throated support of the civil rights community, providing a civil society constituency to counter the rearguard action to limit the meaning of the legal commitments of Second Reconstruction.

EEOC’s reinterpretation of the meaning of discrimination was recently enshrined by the Supreme Court in another sphere of social regulation: housing. Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. (2015)183 addressed the question of whether the Fair Housing Act (p.145) of 1968 (FHA)184 barred housing practices and policies that produced a racially disparate impact in addition to those that evinced racially disparate treatment. Lower federal courts185 and the Department of Housing and Urban Development (HUD)186 had previously interpreted the FHA to prohibit disparate impact. As Justice Kennedy noted in his majority opinion, HUD’s regulations explicitly analogized their interpretation of the FHA to the disparate impact interpretation of Title VII set forth in Griggs.187 He endorsed this analogy from the sphere of employment to the sphere of housing, holding that “[t]he FHA imposes a command with respect to disparate impact liability” and that such an understanding of discrimination was an essential part of “our Nation’s continuing struggle against racial isolation.”188

Though Justice Kennedy did not credit EEOC with the disparate impact theory, Justice Clarence Thomas, in his dissent, did: “The author of disparate impact liability under Title VII was not Congress, but the Equal Employment Opportunity Commission.”189 For Thomas, the EEOC’s authorship was an indictment of the law of disparate impact liability, as he believed the early EEOC had gone beyond the explicit terms of Title VII. Thomas was right that the “author” of disparate impact was the EEOC. But the agency was an author tasked by Congress with articulating the broad purposes it had set out. In Griggs, the Court reviewed the agency’s elaboration of public purposes and confirmed it in judicial judgment.

The institutional durability of the disparate impact analysis inaugurated by the EEOC owes itself in large part to this explicit incorporation of the agency’s analysis into judicial precedent. By agreeing with the EEOC that “Congress directed the thrust of the Act to the consequences of employment practices, not simply motivation,”190 the Griggs Court clearly set out a disparate impact theory of liability that subsequent courts could weaken, but that was very difficult to overturn once established. Though administrative guidelines come and go, like arguments in the public sphere itself, once they are embraced and remade into legal commands by the Supreme Court, they have lasting power—not only within the domain where they apply but in new areas to which the highest court’s precedents may be extended.

3. Desegregation at HEW: Judicial Erasure of the Department’s Social Theory

In the school segregation context, by contrast, the Court failed to articulate the trenchant analysis of the problem of segregation developed by HEW and endorsed by the Fifth Circuit. In Green v. County School Board (1968),191 it held that a “freedom of choice” plan in a historically segregated school district (p.146) in eastern Virginia was not sufficient to meet the desegregation requirements imposed by Brown I and Brown II. But, as Bruce Ackerman notes, Justice Brennan’s opinion in Green offered a “formulaic opinion that replaced discussion of fundamental values with the language of imperial command. . . . Once stripped of basic principle, all that remained in Green was a dramatic show of impatience, a broad approval of technocratic measures of compliance, and a caution that lower courts should temper desegregation demands with common sense.”192 The Court thus failed to explicitly embrace HEW’s administrative determination that “the very nature of a free choice plan and the effect of long-standing community attitudes often tend to preclude or inhibit the exercise of a truly free choice by or for minority group students.”193 It therefore did not enshrine in legal precedent the agency’s thoughtful engagement with the social determinants of individual agency.

As a result of this judicial lacuna, and an increasingly conservative Supreme Court bench, jurisprudence on school desegregation has swung back to classical liberal understandings of school choice, with the Court holding unconstitutional local plans to achieve desegregation through race-conscious student assignment plans.194 As Chief Justice Roberts put it, “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”195 Contrary to the chief justice’s claim, it was only by taking into account the racial composition of southern schools that HEW and the federal courts were able to achieve such great gains in desegregating the South.196 The Court’s erasure of the history of the implementation of Title VI and of the Fourteenth Amendment owes itself in part to the failure of Justice Brennan to write that administrative history firmly into Supreme Court precedent. The contrast between EEOC’s durable articulation of economic requisites and HEW’s quiescent articulation of educational requisites thus goes to show that inter-branch deliberation only succeeds when the courts acknowledge and inscribe into precedent agencies’ critical interpretations of the public’s law.

V. Conclusion

The democratic vision of administration that was first developed by the Progressives, and has been most fully implemented during the constitutional moments of the last century, continues to provide important ideological and institutional resources with which to confront the problems of our present. As we grapple with the threats posed by climate change, with the challenges of immigration, with the violent abuse of police power, with sexual assault and harassment, and with the discursive transformations of the internet, the twin demands of democratic contexts and democratic requisites must continue to (p.147) guide our administrative practice. We must expect and demand that public officials regulate society with a critical and ethical, rather than merely instrumental, mindset. The examples of the FSA, AAA, EEOC, and HEW show that administrators are capable of this combination of social-theoretic sophistication—that they can be more than mere technocrats whose highest calling is to perform a regulatory impact analysis or to find ways to nudge and manipulate the public into efficient behavior.197 A crucial element of this social recognition of administrative capacity is for courts to solicit and respond to value-based arguments from agency officials when such officials explain their resolution of statutory ambiguities. If courts explicitly engage with the social judgments agencies make, they will often fortify these interpretations to weather the reactionary storms that tend to follow moments of constitutional change and administrative creativity.

If public will coalesces for another great era of constitutional revolution and critical administrative intervention, we must also learn from the participatory structures exemplified by the TVA, AAA, and OEO. We must ensure that deliberative democratic forms of administration include all affected persons on equal terms. We must not commit the monumental error of the rural New Deal in providing democratic contexts for propertied farmers while excluding the poor from the determination of their social environment. At the same time, we must ensure that such fully inclusive forms of democratic planning have sufficient administrative support, technical assistance, and programmatic guidance to deliver efficiently the requisites for a fully inclusive public sphere. We must ensure that all citizens are capable of participating as equals in constructing the public’s law. In this way the state will better realize the requirements of individual freedom and more clearly articulate the stifled voice of public opinion. (p.148)

Notes:

(1.) On Hegel and Prussian administrative reform, see Koselleck, Preußen, 263. I discuss this historical background in greater detail in chapter 1.

(2.) Bogdandy and Huber, “Staat, Verwaltung, Verwaltungsrecht,” § 30.

(3.) Lindseth, “The Paradox of Parliamentary Supremacy,” 1361–72.

(4.) Du Bois, The Souls of Black Folk, 14; Goldberg, Citizens and Paupers, 31–75.

(7.) Woodrow Wilson, “The Reconstruction of the Southern States,” The Atlantic Monthly 87, no. 519 (1901): 1–15.

(9.) 5 U.S.C. § 553 (c) (2012).

(10.) Henry Steele Commager, The American Mind: An Interpretation of American Thought and Character since the 1880’s (New Haven, CT: Yale University Press, 1950), 342–43.

(11.) Tennessee Valley Authority Act of 1933, Pub. L. 73-17, 48 Stat. 59 (May 18, 1933).

(12.) Ibid., § 5.

(13.) Patrick Kline and Enrico Moretti, “Local Economic Development, Agglomeration Economies, and the Big Push: 100 Years of Evidence from the Tennessee Valley Authority,” Quarterly Journal of Economics 129, no. 1 (2014): 275–331, 279.

(14.) David. E. Lilienthal, TVA: Democracy on the March (New York: Pocket Books, 1944), 204 (emphasis omitted).

(15.) Ibid. 216, quoting John Dewey, Freedom and Culture (New York: G.P. Putnam’s Sons, 1939), 175–76.

(16.) Philip Selznick, TVA and the Grass Roots: A Study in Politics and Organization (Berkeley: University of California Press, [1949] 1984), 114, 166, 226.

(17.) Ibid., 23138.

(18.) James C. Scott, “High Modernist Social Engineering: The Case of the Tennessee Valley Authority,” in Experiencing the State, ed. Lloyd I. Rudolph and John Kurt Jacobsen (Oxford: Oxford University Press, 2006), 3–52, 30.

(19.) Agricultural Adjustment Act, Pub. L. 73-10, 48 Stat. 31 (May 12, 1933)

(20.) The latter taxation provision was ruled unconstitutional by the Supreme Court in United States v. Butler, 297 U.S. 1 (1936).

(21.) Theda Skocpol and Kenneth Feingold, “State Capacity and Economic Intervention in the Early New Deal,” Political Science Quarterly 97, no. 2 (1982): 255–78, 257.

(22.) Richard S. Kendall, Social Scientists and Farm Politics in the Age of Roosevelt (Columbia: University of Missouri Press, 1966), 11–49.

(23.) Smith-Lever Act of 1914, Pub. L. 63-95, 38 Stat. 372 (1914); Kendrick A. Clements, “Woodrow Wilson and Administrative Reform,” Presidential Studies Quarterly 28, no. 2 (1998): 320–36, 329; Marshall E. Dimock, “Woodrow Wilson as Legislative Leader,” The Journal of Politics 19, no. 1 (1957): 3–19, 9; David E. Hamilton, “Building the Associative State: The Department of Agriculture and American State Building,” Agricultural History 64, no. 2 (1990): 207–18.

(24.) Gladys A. Baker, The County Agent (Chicago: University of Chicago Press, 1939), 159; Alfred Charles True, A History of Agricultural Extension Work in the United (p.237) States, 1785–1923 (Washington, DC: U.S. Government Printing Office, 1928), 100–15.

(26.) Sidney Baldwin, Poverty and Politics: The Rinse and Decline of the Farm Security Administration (Chapel Hill: University of North Carolina Press, 1968), 30–31, 287–88.

(27.) Dale Clark, “The Farmer as Co-administrator,” The Public Opinion Quarterly 3, no. 3 (1939): 482–90.

(28.) John D. Lewis, “Democratic Planning in Agriculture I,” American Political Science Review 35, no. 2 (1931): 232–39, 235.

(29.) Jess Gilbert, Planning Democracy: Agrarian Intellectuals and the Intended New Deal (New Haven, CT: Yale University Press, 2015), 115–141.

(30.) Ibid., 2.

(31.) M.L. Wilson, “The Democratic Processes in the Formation of Agricultural Policy,” Social Forces 19, no. 1 (1940): 1–11, 8.

(33.) Gilbert, Planning Democracy, 162, quoting Agricultural Adjustment Administration, Division of Program Planning, Schools for Extension Workers: What Is a Desirable Agricultural Action Program? (Washington, DC: 1936) (on file with author).

(38.) Donald H. Grubbs, Cry from the Cotton: The Southern Tenant Farmers’ Union and the New Deal (Fayetteville: University of Arkansas Press, 2000), 17–61.

(41.) Gilbert, Planning Democracy, 214. Margaret Weir and Theda Skocpol, “State Structures and the Possibilities for ‘Keynesian’ Responses to the Great Depression in Sweden, Britain, and the United States,” in Bringing the State Back In, ed. Peter B. Evans, Dietrich Rueschemeyer, and Theda Skocpol (Cambridge: Cambridge University Press, 1985), 144.

(42.) Emergency Relief Appropriation Act of 1935, 49 Stat. 115 (1935).

(43.) Exec. Order No. 7072, Establishing the Resettlement Administration (May 1, 1935).

(44.) The Bankhead-Jones Farm Tenant Act, Pub. L. 75-210, 50 Stat. 522 (1937)

(45.) The public investments of the FSA were significant: the Farm Security Administration’s $180 million expenditures for fiscal year 1938 represented roughly one-quarter of the Department of Agriculture’s total expenditures, 8 percent of federal social spending, and 2.5 percent of total federal expenditures. Baldwin, Poverty and Politics, 236. Edwin Amenta, Bold Relief: Institution Politics and the Origins of Modern American Social Policy (Princeton, NJ: Princeton University Press 1998), 4.

(46.) Grubbs, Cry from the Cotton, 157. Between 1937 and 1944, the FSA spent a total of $1.274 billion, $1.025 billion of which went to such rural rehabilitation programs. Baldwin, Poverty and Politics, 317.

(47.) Monroe Oppenheimer, “The Development of the Rural Rehabilitation Loan Program,” Law and Contemporary Problems 4, no. 4 (1937): 473–88, 483. The official FSA staff guidebook distinguishes between “County TP [Tenant Purchase] Committees,” composed of three local farmers, “whose function is to certify applicants and farms as specified in Title I of the Bankhead-Jones Farm Tenant Act,” and “County RR [Rural Rehabilitation] Committees,” a “committee of three farm men and women selected from the community whose function is to assist RR supervisors in all problems involving FSA families and applicants.” Department of Agriculture, Farm Security Administration, Toward Farm Security, by Joseph Gaer (Washington, DC: U.S. Government Printing Office, 1941), 185 (emphasis added). Thus, in the Tenant Purchase program, the FSA followed the statutory mandate to delegate lending authority to local farmers, on the model of the AAA; whereas in the rural rehabilitation program, where it had no such legal obligation, the FSA chose to reserve decision-making power to FSA staff, giving the county committee only an advisory function. In addition, County Farm Debt Adjustment Committees composed of local farmers arbitrated voluntary debt adjustments between creditors and debtors. It seems likely that the FSA used committees in this case too because the Act said that the secretary of agriculture was only empowered to “assist in the voluntary adjustment of indebtedness” and “may cooperate and pay the whole or part of the expenses of State, territorial, and local agencies and committees engaged in such debt adjustment.” Bankhead-Jones Act, § 22.

(49.) Ibid., 245.

(50.) Paul Keith Conkin, Tomorrow a New World: The New Deal Community Program (Ithaca, NY: Cornell University Press, 1959), 221.

(52.) Ibid., 65-66.

(53.) Gunmar Myrdal, An American Dilemma: The Negro Problem and Modern Democracy, vol. 1 (New York: Harper & Row, 1944), 273–74; Donald Holley, “The Negro in the New Deal Resettlement Program,” Agricultural History 45, no. 3 (1971): 179–93, 181. Greta de Jong, “‘With the Aid of God and the F.S.A.’: The Louisiana Farmers Union and the African American Freedom Struggle in the New Deal Era,” Journal of Social History 34, no. 1 (2000): 105–39; Grubbs, Cry from the Cotton, 158.

(55.) Ibid., 118.

(56.) Charles Kenneth Roberts, “Client Failures and Supervised Credit in the Farm Security Administration,” Agricultural History 83, no. 3 (2013): 368–90, 378–79.

(58.) Ibid., 220–33; Select Committee of the House Committee on Agriculture, Report of the Select Committee of the House Committee on Agriculture to Investigate the Activities of the Farm Security Administration (Washington, DC: United States: U.S. Government Printing Office, 1944), 2.

(60.) Michael Grey, “The Medical Care Programs of the Farm Security Administration, 1932–1947: A Rehearsal for National Health Insurance?” American Journal of Public Health 84, no. 10 (1994): 1678–87.

(61.) Ibid., 1679.

(63.) W.E.B. Du Bois, “Federal Action Programs and Community Action in the South,” Social Forces 19, no. 3 (1940): 375–80, 377. Du Bois does not mention the FSA explicitly in the essay, focusing on the Works Progress Administration. But his analysis captures the spirit of the FSA’s practice as well.

(64.) Ibid., 379.

(65.) Ibid., 380.

(68.) George Shepherd, “Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics,” Northwestern University Law Review 90, no. 4 (1996): 1558–78, 1586–92; Joanna Grisinger, The Unwieldy American State: Administrative Politics since the New Deal (Cambridge: Cambridge University Press, 2012), 73–83.

(69.) Report of the Special Committee on Administrative Law, in Reports of the American Bar Association 63 (1938), 331–68, 364–68.

(70.) Roscoe Pound, “Executive Justice,” American Law Register 55, no. 3 (1907): 137–46.

(71.) For a rich discussion of Pound’s fraught relationship to the ABA and the Walter-Logan Bill, see Ernst, Tocqueville’s Nightmare, 121–25.

(72.) S. 915, H.R. 6324, 76th Cong. 1st Sess. (1939).

(73.) Attorney General’s Committee on Administrative Procedure, Final Report (Washington, DC: U.S. Government Printing Office, 1941), 103–4.

(74.) Ibid., 105.

(75.) 5 U.S.C. § 553 (c) (2012).

(76.) David Ciepley, Liberalism in the Shadow of Totalitarianism (Cambridge, MA: Harvard University Press, 2006), 129–46, 194–216; Reuel E. Schiller, “Reining in the Administrative State: World War II and the Decline of Expert Administration,” in Total War and the Law: The American Home Front in World War II, ed. Daniel R. Ernst and Victor Jew (Westport, CT: Praeger, 2002), 185–206, 188–90.

(77.) Theodore J. Lowi, The End of Liberalism: The Second Republic of the United States 2nd ed. (New York: W.W. Norton, 1979), 40.

(78.) Brown v. Bd. of Educ., 347 U.S. 483, 494 n.11 (1954).

(79.) Myrdal, An American Dilemma, 278.

(80.) Lester M. Salamon, “The Time Dimension in Policy Evaluation,” Public Policy 27, no. 2 (Spring 1979): 129–82.

(81.) Spencer D. Wood, The Roots of Black Power: Land, Civil Society, and State in the Mississippi Delta, (PhD. diss., University of Wisconsin-Madison, 2006), 5

(82.) Ibid., 5.

(83.) On the relationship between the Southern Tenant Farmers Union, the FSA, and early civil rights mobilization, see Nan Elizabeth Woodruff, American Congo: The (p.240) African American Freedom Struggle in the Delta (Cambridge, MA: Harvard University Press, 2003), 198–227.

(84.) Grey, “The Medical Care Programs of the Farm Security Administration, 1932–1947,” 1686.

(85.) Richard A. Couto. “Heroic Bureaucracies,” Administration & Society 23, no. 1 (1991): 123–47.

(86.) Michael L. Gillette, Launching the War on Poverty: An Oral History, 2nd ed. (New York: Oxford University Press, 2010), 307–10.

(87.) Warren C. Whatley, “Labor for the Picking: The New Deal in the South,” Journal of Economic History 43, no. 4 (1983): 905–29.

(88.) Leah Platt Boustan, “Was Postwar Suburbanization ‘White Flight’? Evidence from the Black Migration,” The Quarterly Journal of Economics, 125, no. 1 (2010): 417–43.

(89.) Reuel Schiller, Forging Rivals: Race, Class, Law, and the Collapse of Postwar Liberalism (New York: Cambridge University Press, 2015), 144–48; Louis Jaffe, “The Public Right Dogma in Labor Board Cases,” Harvard Law Review 59, no. 5 (1946): 720–45, 739.

(90.) Du Bois, Souls of Black Folk, 31.

(91.) Bruce Ackerman, We the People 3: The Civil Rights Revolution (Cambridge, MA: Harvard University Press, 2014), 2.

(92.) E.g., N.L.R.B. v. Hearst Pub’ns, 322 U.S. 111, 130–31 (1944).

(93.) Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954).

(94.) United States Commission on Civil Rights, Survey of School Desegregation in the Southern and Border States, 1965-66 (1966), 1.

(95.) Brown v. Bd. of Educ., 349 U.S. 294, 301 (1955); See also Richard W. Brown, “Freedom of Choice in the South: A Constitutional Perspective,” Louisiana Law Review 28, no. 3 (1968): 455–68, 456 and Alexander Bickel, “The Decade of School Desegregation: Progress and Prospects,” Columbia Law Review 64, no. 2 (1964): 193–229, 199.

(96.) Civil Rights Act of 1964, Pub. L. 88-432, 78 Stat. 241-267 (July 2, 1964).

(97.) Ibid., § 601.

(98.) Ibid., § 602.

(99.) Department of Health, Education, and Welfare, Non-discrimination in Federally Assisted Programs of the Department of Health Education and Welfare—Effectuation of Title VI of the Civil Rights Act of 1964, 29 Fed. Reg. 16,298, 16,300 (1964).

(100.) Responses to the proposed guidelines showed their potential to win the qualified support of even hostile politicians as a flexible administrative remedy. Senator Richard Russell of Georgia, for example, “expressed deep opposition to the whole idea of integration and to using the power of the Federal Government to force a region to do something distasteful. But then he said graciously that he realized he was resisting the inevitable, that HEW had handled things extremely well ‘so far,’ and that we were trying to be fair and reasonable.” Douglas S. Cater, Memorandum to the President (February 26, 1966) with attached Interviews and Reactions concerning New Title VI Guidelines for Elementary and Secondary (p.241) Schools (February 26, 1966), Lyndon Baines Johnson Library, Papers of Lyndon Baines Johnson, Files of S. Douglass Cater, box 14.

(101.) By August 17, 1965, as HEW Secretary John W. Gardner wrote in a memorandum to White House aide Douglass Cater, in Georgia and South Carolina “hundreds of school districts signed HEW Form 441 [indicating compliance with requirements of Title VI] . . . despite the fact that it is well known the districts operate a dual system. The motives for signing probably ranged from good intent coupled with misunderstanding to deliberate intention to evade the Act.” Department of Health, Education and Welfare, Memorandum from John W. Gardner, Secretary of Health, Education, and Welfare for Honorable Douglass Cater (March 23, 1965), Lyndon Baines Johnson Library, Papers of Lyndon Baines Johnson, Files of S. Douglass Cater, Box 51. See also Department of Health Education and Welfare, Memorandum for Honorable Douglas Cater, Special Assistant to the President, Subject: Report on HEW Departmental Activities in Regard to Implementation of Title VI in the State of Virginia (April 6, 1965), Lyndon Baines Johnson Library, Papers of Lyndon Baines Johnson, Files of S. Douglass Cater, Box 51; See also Department of Health Education and Welfare, Letter from Francis Keppel, U.S. Commissioner of Education, to Claude Percell, Georgia State Department of Schools (March 31, 1965), Lyndon Baines Johnson Library, Papers of Lyndon Baines Johnson, Files of S. Douglass Cater, Box 51.

(102.) As White House Aid Douglas Cater explained in a memo to the president, “After a great deal of deliberation between HEW and the Justice Department, it was decided to draft a detailed set of specifications to guide school districts in their desegregation plans submitted under provisions of Title VI of the Civil Rights Act. The problem was simply this: approximately 500 districts have submitted plans, most of them considered by the Commissioner of Education to be unacceptable. It would be impossible to negotiate with each on an ad hoc basis. . . . The decision reached was that specific guidelines would be the only way to break this impasse.” Douglass Cater, Memorandum to the President from Douglas Cater (April 23, 1965), Lyndon Baines Johnson Library, Papers of Lyndon Baines Johnson, Files of S. Douglas Cater, Box 51.

(103.) “No regulation, rule, or order shall become effective unless and until approved by the President.” Civil Rights Act of 1964 § 602.

(104.) “The question was raised whether to issue them as guidelines bearing only the authority of HEW. Secretary Celebrezze decided that HEW should bear the political burden and issue them as guidelines,” Cater, Memorandum to the President (April 23, 1965).

(105.) Department of Health, Education, and Welfare, Statement of Policies for School Desegregation Plans under Title VI of the Civil Rights Act of 1964, 45 C.F.R. § 181.54(a) (1967). This provision reflected an understanding of the problem of discrimination and school desegregation that the agency had adopted as early as April 1965. A draft of the Office of Education’s “Interpretive Bulletin No. 1” stated that “To comply with Title VI and the HEW Regulations . . . elementary and secondary school authorities have a duty to take positive action to remove (p.242) discrimination grounded on race, color, or national origin. This duty is not discharged by adopting rules or practices which shift the burden of removing discrimination to the class or classes of persons previously discriminated against. The right not to be subject to discrimination, which Title VI . . . secures, is the right to a system of schools which operate without discrimination. Where pupils, teachers, or staff personnel have been assigned to schools on the basis of race, color, or national origin, school officials must take the actions necessary to eliminate customs and practices characteristic of such dual or segregated school systems. The prohibition of discrimination in Title VI . . . does not, however, prevent the use of race, color, or national origin as a factor in actions designed to prevent, ameliorate, or eliminate either de jure or de facto racial segregation.” Department of Housing Education and Welfare, Office of Education, Interpretive Bulletin No. 1, Elementary and Secondary Schools: Standards for Compliance with Title VI of the Civil Rights Act; Nondiscrimination in Federally Assisted Programs (April 19, 1965), Lyndon Baines Johnson Library, Papers of Lyndon Baines Johnson, Files of S. Douglas Cater, Box 51.

(106.) 45 C.F.R. 181.54 (b), (f), and (i) (1967).

(107.) Ibid., 181.54(a).

(108.) As Edwin Yourman, Assistant General Counsel at HEW, noted in the Department’s 1968 Administrative History, during 1966 and 1967, “both the courts and administrative policies and ‘guidelines,’ concerned at first with mechanisms to break down rigidly racial assignment patterns, have moved gradually but surely toward an insistence on attainment of the ultimate objective, elimination of the dual school system. . . . School officials and community groups originally opposed the right of a Negro child to choose a school established for whites. When experience showed that in most cases only a limited number of such choices would be made, they stoutly defended this type of arrangement as though it constituted a fundamental natural right.” Department of Health, Education, and Welfare, Office of the General Counsel, “School Desegregation under the Regulation,” by Edwin Yourman, Lyndon Baines Johnson Library, Papers of Lyndon Baines Johnson, Administrative History, Department of Health, Education, and Welfare Vol. I, Part III, Box 2, pp. 15–16. See also Gary Orfield, The Reconstruction of Southern Education: The Schools and the 1964 Civil Rights Act (New York: Wiley, 1969), 340.

(109.) Interview with Elaine Heffernan, May 20, 1968, in “Office Of Civil Rights, OCR Historical Record, Title VI Implementation DHEW,” by Elaine Heffernan, Lyndon Baines Johnson Library, Papers of Lyndon Baines Johnson, Administrative History, Department of Health, Education, and Welfare Vol. I, Part III, Box 2 (1968), Ch. II, p. 163. Derrick Bell would go on to become the first African American full professor of law at Harvard Law School and would later become a famous critic of school integration, once efforts to do so stalled. See Derrick A. Bell Jr., “Brown v. Board of Education and the Interest-Convergence Dilemma,” Harvard Law Review 93, no. 3 (1980): 518–33.

(110.) Elaine Heffernan, who was an administrative assistant to Director of OCR Peter Libassi, argued in her Administrative History of the Office that “[c]onsiderably older than Title VI is its governing principle, which may be formulated on broad terms as follows: the practice of and participation in racial discrimination (p.243) by the Federal government is improper. . . . We recognize that the ‘principle’ we have posited is very broad. We recognize also that it does not stand alone, but rather, is grounded in fundamental principles of public administration, constitutional law, and morality,” including the norm that “[p]ublic funds spent for the common good should be distributed equitably among the members of the public for whose benefit they are intended.” Heffernan, Office of Civil Rights, OCR Historical Record, 1–2.

(111.) Librassi “had spent virtually his entire career as a civil rights specialist in New York with the Civil Rights Commission.” Orfield, Reconstruction of Southern Education, 329. Derrick Bell was one of the plaintiffs’ attorneys in Singleton v. Jackson Municipal School District, 348 F.2d 729 (5th Cir. 1965), to be discussed in the next paragraph, before he joined HEW.

(112.) Gary Orfield, “The 1964 Civil Rights Act and American Education,” in Legacies of the 1964 Civil Rights Act, ed. Bernard Grofman (Charlottesville: University of Virginia Press, 2002) 89–129, 102.

(113.) 348 F.2d. 729 (1965).

(114.) United States v. Jefferson County Bd. of Educ. 372 F.2d 836 (5th Cir. 1966), quoting Singleton v. Jackson Municipal Separate Sch. Dist. 348 F.2d 729, 731 (5th Cir. 1965), aff’d en banc, United States v. Jefferson Cty. Bd. of Educ. 380 F.2d 385 (5th Cir. 1967).

(115.) 348 F.2d at 731.

(116.) Scripps–Howard Radio v. FCC, 316 U.S. 4, 15 (1942).

(117.) United States v. Jefferson Cty. Bd. of Educ. 380 F.2d 385 (5th Cir. 1967); Green v. County Sch. Bd., 391 U.S. 430 (1968).

(118.) Ackerman credits Judge Wisdom in Jefferson County with moving “beyond technocracy to ultimate constitutional values.” Ackerman, We the People 3, 236. While it is true that Judge Wisdom applied HEW’s statutory interpretation of the Civil Rights Act to his interpretation of the requirements of the Fourteenth Amendment, it is important not to cast the agency in the role of mere technocracy, and to valorize the courts as the sole voice of values. HEW’s 1966 Guidelines did not merely pronounce a set of numerical guidelines, but explained why such a statistical approach was necessary given the agency’s sophisticated understanding of the social constraints on individual choice. As I have argued, HEW officials’ judgment that free choice was limited by community prejudice emerged from their mediation of egalitarian principles and administrative experience.

(119.) Jacqueline Dowd Hall, “The Long Civil Rights Movement and the Political Uses of the Past,” The Journal of American History 91, no. 4 (2005): 1252–53.

(120.) Martin Luther King, “I Have a Dream . . .” Speech by the Rev. Martin Luther King at the “March on Washington” (August 28, 1963), available at: https://perma.cc/H78Z-2RKR.

(121.) Civil Rights Act of 1964, § 703(a)(1) (1964).

(122.) Congress’s intent on this issue remains a matter of scholarly disputation. See Hugh Davis Graham, The Civil Rights Era, Origins and Development of National Policy (New York: Oxford University Press, 1990), 246, 150–52; John David Skrentny, Ironies of Affirmative Action: Politics, Culture, and Justice in America (Chicago: Chicago University Press, 1997), 121; Ackerman, We the People 3, 177.

(123.) Nicholas Pedriana and Robin Stryker, “The Strength of a Weak Agency: Enforcement of Title VII of the 1964 Civil Rights Act and the Expansion of State Capacity, 1965–1971,” American Journal of Sociology 110, no. 3 (2004): 709–60, 725.

(124.) Equal Employment Opportunity Commission, “Equal Employment Opportunity Commission: Administrative History,” microformed on Civil Rights During the Johnson Administration, 1963–1969 part II, Steven F. Lawson ed., reel 1, frame 0249 (Univ. Publications Am. [1968] 1984).

(125.) Civil Rights Act § 703(h) (1964).

(126.) Griggs, 401 U.S. at 433 n. 9 (quoting EEOC Guidelines on Employment Testing Procedures, CCH EMPL. PRAC. GUIDE, ¶ 17,304.53 (EEOC Dec. 2, 1966)).

(127.) Alfred Blumrosen, Black Employment and the Law (New Brunswick, NJ: Rutgers University Press, 1971), 52.

(128.) Erbin Crowell Jr., “EEOC’s Image—Remedy for Job Discrimination?,” Civil Rights Digest 1, no. 1 (1968): 29–34, 30.

(129.) Equal Employment Opportunity Commission, “They Have the Power—We Have the People”: The Status of Equal Employment Opportunity in Houston, Texas, 1970 (Washington, DC: EEOC, 1970), i.

(130.) Commissioner Brown’s public statement that “discrimination is a condition of pervasive exclusion,” and Commissioner Jackson’s suggestion that discrimination had become less a matter of an “evil state of mind” than an “institutionalized” condition, cast serious doubt on John David Skrentny’s claim that “there was no ideological or ethical attachment to the affirmative action model” amongst EEOC officials who developed it. Skrentny, Ironies of Affirmative Action, 223. In reconceiving discrimination as a pernicious pattern of social behavior, rather than the isolated, irrational act of the bigot, EEOC began piecing together a new critique of the injustices of civil society and an ethical vision for its reconstruction. EEOC’s petition to FCC to intervene in AT&T’s rate increase petition provides yet another example of the moral content of EEOC’s effects-based arguments. EEOC’s petition emphasized, in its analysis of black employment at the company, that the “present situation with respect to blacks represents historic exclusionary practices,” indicating EEOC’s reliance on a conception of discrimination as a state of social exclusion rather than intentional malice. EEOC’s assessment of AT&T was laced with moral reprobation, describing the company’s statistical employment record as “appalling” and arguing that “AT&T has violated the fair employment laws so flagrantly as to shock the conscience.” Equal Employment Opportunity Commission, Memorandum in Support of EEOC Petition to Intervene from Stanley P. Hebert, General Council, & David A. Copus, Attorney, EEOC, to FCC (Dec. 10, 1970), (EEOC v. AT&T, NAACP Papers, Part V, Box 353, Folder 1), 3–4, 24 (on file with author). See also Sophia Z. Lee, “Race, Sex, and Rulemaking: Administrative Constitutionalism and the Workplace, 1960 to the Present,” Virginia Law Review 96, no. 4 (2010): 799–886, 810–44. While Skrentny is right to emphasize that considerations of “administrative pragmatism” and “crisis management” influenced EEOC and other government agencies in developing effects-based arguments, these statements show that EEOC officials were also beginning to rethink the very meaning of (p.245) racism in America, rather than merely using whatever administrative tools were available to address black unemployment and urban unrest. Their innovative interpretations of the Civil Rights Act were reminiscent of Stokely Carmichael and Charles Hamilton’s concept of “institutional racism” and anticipated Iris Marion Young’s concept of “structural injustice,” meaning injustice “embedded in unquestioned norms, habits, symbols, in the assumptions underlying institutional rules and the collective consequences of following those rules.” Iris Marion Young, Justice and the Politics of Difference (Princeton, NJ: Princeton University Press, 1990), 41; Stokely Carmichael and Charles Hamilton, Black Power: The Politics of Liberation in American (New York: Random House, 1967). Skrentny’s implication that administrative rationality and ethical judgment cannot coexist and that moral arguments only legitimately originate in persons and groups within civil society, rather than in the deliberations of public officials, bespeaks his Weberian sociological assumptions about the nature of the state, which has difficulty recognizing the Progressive Hegelian practices that are the focus of my study.

(131.) Equal Employment Opportunity Commission, The Role of the EEO-1 Reporting System in Commission Operations (1967), in EEOC, Administrative History, Reel 2, Frames 0633–0659.

(132.) See generally The White House Conference on Equal Employment Opportunity. Panel 1—First Session: “Patterns of Discrimination.” Washington DC: August 19, 1965 (Washington, DC: Ward & Paul, 1965).

(133.) Equal Employment Opportunity Commission, The Role of the EEO-1 Reporting System in Commission Operations (1967). In EEOC Administrative History, reel 1, frames 0150–0151.

(134.) Douglas Robinson, “Business Job Bias in City Is Charged,” New York Times, January 16, 1968, at 1.

(136.) Crowell, “EEOC,” 32.

(137.) Equal Employment Opportunity Commission and Dana Whitaker, eds., Recollections of Luther Holcomb, Vice-Chairman of the Equal Employment Opportunity Commission from 1964-1974, https://perma.cc/2UXX-224X.

(138.) Ackerman, We the People 3, 181; Graham, The Civil Rights Era, 468–70.

(139.) Nicholas Pedriana and Robin Stryker note that “the early EEOC was populated by an ideologically and professionally diverse senior staff that, as a collectivity, was initially unsure about the Commission’s central objectives or how they might be accomplished.” Pedriana and Stryker, “The Strength of a Weak Agency,” 721.

(140.) Napoleon Johnson of the National Urban League argued at the Commission’s 1965 White House Conference that “social statistics with racial designations are subject to possible misuse and bigots and the uninformed have used racial statistics to encourage the erroneous but widespread belief that race itself is a significant causal factor in delinquency, crime and other social pathology. . . . We reaffirm our opposition to the identification of race and religion of the individual.” Equal Employment Opportunity Commission, White House Conference on Equal Employment Opportunity, 10. Clarence Mitchell of the NAACP voiced similar objections. Skrentny, Ironies of Affirmative Action, 128.

(141.) Robert C. Lieberman, “Ideas, Institutions and Political Order: Explaining Political Change,” American Political Science Review 96, no. 4 (2002): 697–712, 708.

(142.) 401 U.S. 424 (1971).

(143.) 401 U.S. at 427.

(144.) Civil Rights Act of 1964 § 703(h) (1964).

(145.) 401 U.S. at 429.

(146.) 401 U.S. at 431.

(147.) 401 U.S. at 427.

(148.) 401 U.S. at 435.

(149.) Economic Opportunity Act of 1964, Pub. L. 88-452, 78 Stat. 503 (1964).

(150.) John F. Kennedy, “Letter to the President of the Senate and to the Speaker of the House Proposing the Establishment of a National Service Corps.,” (April 10, 1963), online at The American Presidency Project, ed. Gerhard Peters and John T. Woolley, https://perma.cc/T7TE-C2CA. Several best-selling books came out in the late 1950s and early 1960s highlighting the problem of poverty, including Michael Harrington, The Other America: Poverty in the United States (New York: MacMillan, 1962) and John Kenneth Galbraith, The Affluent Society (New York: The New American Library, 1958). President Kennedy and Johnson after him subsequently took up the call to address poverty. James L. Sundquist, Politics and Policy: The Eisenhower, Kennedy, and Johnson Years (Washington, DC: The Brookings Institution, 1968), 111–45. Johnson’s proposed legislation won added support because of contemporaneous urban unrest, which commentators saw as inextricably linked with the civil rights struggles of the same year. For example, in the midst of rioting in New York City in August 1964, as the bill was before Congress, the New York Times Editorial Board wrote: “In New York and all the other many Northern cities with large Negro populations what is called the civil rights struggle is also a movement inspired by resentment at mass unemployment and lack of access to other than menial jobs. Though misguided and self-defeating, the disturbances of recent weeks are as much demonstrations against Negro poverty as against discrimination and what some call ‘police brutality.’ The anti-poverty bill, in the new perspective given by the disturbances of this long, hot summer, is also an anti-riot bill. The members of the House of Representatives will do well to bear that in mind when the time comes for a vote.” Editorial, New York Times, August 4, 1964.

(151.) S.M. Miller and Martin Rein, “Participation, Poverty, and Administration,” Public Administration Review 29, no. 1 (1969): 15–25; Morone, The Democratic Wish, 219.

(152.) Lyndon B. Johnson, “Address on Voting Rights to Joint Session of Congress,” Public Papers of the Presidents of the United States: Lyndon B. Johnson, 1965. Volume I, entry 107, pp. 281–87. Washington, DC: U.S. Government Printing Office, 1966.

(153.) Economic Opportunity Act of 1964, § 202.

(154.) Ibid., § 202(a)(4).

(155.) Probably by Harold Horowitz, associate general counsel at HEW before he was assigned to the Task Force. Gillette, Launching the War on Poverty, 59, 98.

(156.) Ibid., 95–104.

(157.) James L. Sundquist, who was on the Task Force, argues that “the bill was deliberately drafted to grant the broadest possible discretion to the administrator.” Sundquist, Politics and Policy, 145.

(158.) Daniel P. Moynihan, Maximum Feasible Misunderstanding: Community Action in the War on Poverty (New York: Free Press, 1969), 87.

(159.) Economic Opportunity Act § 202(a)(4) (emphasis added).

(160.) S. Rep. No. 88-1218 at 19 (1964).

(161.) H. Rep. No. 88-1458 at 10 (1964).

(162.) Morone, The Democratic Wish, 227–28; John H. Wheeler, “Civil Rights Groups—Their Impact upon the War on Poverty,” Law and Contemporary Problems 31, no. 1 (1966): 152–58.

(163.) Office of Economic Opportunity, Community Action Program Guide vol. 1 (Washington, DC, 1965), 18, quoted in Paul E. Peterson, “Forms of Representation: Participation of the Poor in the Community Action Program,” American Political Science Review 64, no. 2 (1970): 491–507, 494.

(164.) Office of Economic Opportunity, Administrative History, 117–18.

(165.) J. David Greenstone and Paul E. Peterson, Race and Authority in Urban Politics: Community Action and the War on Poverty (Chicago: London University of Chicago Press, 1973), 306.

(166.) Morone, The Democratic Wish, 233–35.

(167.) Greenstone and Peterson, Race and Authority, 307.

(168.) Robert Halpern, Rebuilding the Inner City: A History of Neighborhood Initiatives to Address Poverty in the United States (New York: Columbia University Press, 1995), 113–15.

(169.) Greenstone and Peterson, Race and Authority, 9–10, 111–62.

(170.) See, e.g., Mandi Isaacs Jackson, Model City Blues: Urban Space and Organized Resistance in New Haven (Philadelphia: Temple University Press, 2008), 82–84; Greenstone and Peterson, Race and Authority, 309.

(171.) Mandi Isaacs Jackson, Model City Blues: Urban Space and Organized Resistance in New Haven (Philadelphia: Temple University Press, 2008), 82–84; Greenstone and Peterson, Race and Authority, 7, 309. See also Robert C. Smith, “Black Power and the Transformation of Protest into Policies,” Political Science Quarterly 96, no. 3 (1981): 431–43.

(172.) S.M. Miller and Martin Rein, “Participation, Poverty, and Administration,” Public Administration Review 29, no. 1 (1969): 15–25, 17.

(173.) Halpern, Rebuilding the Inner City, 113.

(174.) Head Start, an early childhood education program, was a brainchild of the chief of the Office of Economic Opportunity, Sargent Shriver. While the plan initially worked through the community action programs, and thus involved parents to varying degrees in implementation, it was eventually removed to HEW, where it took on a more conventional, bureaucratic shape. Kathryn R. (p.248) Kuntz, “A Lost Legacy: Head Start’s Origins in Community Action,” in Critical Perspective on Head Start: Revisioning the Hope and the Challenge, ed. Jeanne Ellsworth and Lynda L. James (Albany, NY: SUNY Press, 1998), 1–48. The success of the early, more participatory program is a matter of some dispute, but observable educational gains were decidedly mixed where measured. Walter Williams and John W. Evans “The Politics of Evaluation: The Case of Head Start,” Annals of the American Academy of Political and Social Science 385, no. 1 (1969): 118–35.

(175.) Moynihan, Maximum Feasible Misunderstanding, 148, 152.

(176.) Paul Bernstein and Kathleen Monaghan, “Equal Opportunity and the Mobilization of Law,” Law & Society Review 20, no. 3 (1986): 355–88.

(177.) See B. Dan Wood, “Does Politics Make a Difference at the EEOC?” American Journal of Political Science 34, no. 2 (1990): 503–30, 509. Thomas criticized the work of the Commission under his predecessor, Eleanor Holmes Norton, for “concentrat[ing] on prospective relief in the form of numerical goals and time tables rather than full relief for the party actually filing charge. . . . [T]he emphasis was on obtaining broad remedies for a theoretical group that had not filed charges. I find it ironic that anyone would put in place a policy that provided less relief for those who were actually hurt than for those who may have been hurt as a result of some attenuated, historical events. . . . [W]e have, unfortunately, permitted sociological and demographic realities to be manipulated to the point of surreality by convenient legal theories such as ‘adverse impact’ and ‘prima facie cases.’ ” Clarence Thomas, “The Equal Employment Opportunity Commission: Reflections on a New Philosophy,” Stetson Law Review 15, no. 1 (1985): 29–36, 33, 36.

(178.) See, e.g., Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 661 (1989) (“any alternative practices which respondents offer up in . . . must be equally effective as petitioners’ chosen hiring procedures in achieving petitioners' legitimate employment goals,” considerations of cost included).

(179.) Pub. L. No. 102-166, 105 Stat. 1071 (1991).

(180.) Ibid. § 2(2).

(181.) Ibid. § 2(3).

(182.) Reginald C. Govan, “Honorable Compromises and the Moral High Ground: The Conflict between the Rhetoric and the Content of the Civil Rights Act of 1991,” Rutgers Law Review 46 no. 1 (1993): 1–242.

(183.) Texas Dept. of Housing and Comm. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015).

(184.) Pub. L. 90-284, 82 Stat. 73, 42 U.S.C. § 3601 et. seq. (2012).

(185.) Inclusive Communities, 135 S. Ct. at 2511.

(186.) Department of Housing and Urban Development, Implementation of the Fair Housing Act’s Discriminatory Effects Standard, 78 Fed. Reg. 11,460 (2013).

(187.) Inclusive Communities, 135 S. Ct. at 2523; 78 Fed. Reg. 11460, 11,466 (2013).

(188.) 135 S. Ct. at 2524, 2525.

(189.) Id. at 2528 (Thomas, J., dissenting).

(190.) Griggs, 401 U.S. at 432 (1971).

(191.) 391 U.S. 430 (1968).

(192.) Ackerman, We the People 3, 240.

(193.) Department of Housing and Urban Development, Non-discrimination in Federally Assisted Programs, 45 C.F.R. § 181.54 (1967).

(194.) Parents Involved in Community Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007).

(195.) 551 U.S. at 748.

(196.) Gary Orfield and Chungmei Lee report that “executive branch enforcement under President Johnson made the South the nation’s most integrated region with just a few years of serious enforcement.” Gary Orfield and Chugmei Lei, Historic Reversals, Accelerating Resegregation, and the Need for New Integration Strategies (UCLA Civil Rights Project, 2007), 13, https://perma.cc/WQA2-5339. The trends continued for the next two decades as courts continued to provide injunctive relief to the victims of segregation: though only 2 percent of Southern schools were integrated at all in 1965, by 1968 19 percent of African Americans in the South attended majority white schools; by 1991, 40 percent attended majority white schools. Ibid., 28.

(197.) Compare Richard H. Thaler and Cass R. Sunstein, Nudge: Improving Decisions about Health, Welfare, and Happiness (New York: Penguin, 2008).