Milligan on Subsidizing Segregation

Joy Milligan, University of California, Berkeley, School of Law, has posted Subsidizing Segregation, which is forthcoming in volume 104 of the Virginia Law Review (2018):

What drives administrative officials to enforce the Constitution—or not? This Article recovers a forgotten civil rights struggle that sheds light on that question. Long after Brown v. Board of Education, federal education officials continued to fund segregated schools, arguing that their agency bore no immediate responsibility for implementing the Equal Protection Clause. In the present, that position seems deeply surprising—even at odds with the rule of law. But the administrators did what their agency had been designed to do: extend the federal role in education, without extending federal constitutional rights. Congress engineered the federal Office of Education, predecessor to today’s Department of Education, with the goal of avoiding enforcement of the Constitution’s equality principles. That institutional framework endured, as it did in much of the administrative state, until the Civil Rights Act of 1964 revised it.

The battle to enforce Brown’s principle against the federal government illustrates a basic feature of administrative constitutionalism: Agencies can be designed to serve, or disserve, a broad range of constitutional goals. Any particular agency’s approach to the Constitution will reflect the enduring influence (and variability) of administrative mandate and structure. That truth, encapsulated in the struggle over federal subsidies for segregation, also illuminates a key reason that racial segregation and inequality have been so difficult to uproot: Much of the federal administrative state was initially intended to coexist with discrimination, not combat it.