Race, sex, and rulemaking: Administrative constitutionalism and the workplace, 1960 to the present

Virginia Law Review

Volumn 96, Issue 4, 2010, Pages 799-886

  Lee, Sophia Z ^a  

^a UNIVERSITY OF PENNSYLVANIA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77950495647     PISSN: 00426601     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (450)

1. J. Clay Smith, Jr., Assoc. Gen. Counsel, FCC, Speech at the Annual Meeting of the National Citizens Committee for Broadcasting (June 25, 1977) (Leadership Conference on Civil Rights Papers, LCMD, part I, box 101, "FCC - FCC, 1978" folder) (all archival sources are on file with author).
2. Equal employment has come to be defined narrowly by employment discrimination litigation under Title VII of the 1964 Civil Rights Act. Pub. L. No. 88-352, 42 U. S. C. § 2000 (e) (2006).
3. The reader is invited to hear in this term not what it has come to mean under Title VII, but the multiple and contested meanings it retained during the events chronicled here. Likewise, the limited meaning of equal protection and its correlate, discrimination, in current constitutional doctrine had not been consolidated during the period this Article recounts. See Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles Over Brown, 117 Harv. L. Rev. 1470, 1537-38 (2004).
4. The current legal definition of discrimination is not capacious enough to express the constitutional obligations and remedies recounted here. I hope the reader will be able to imagine a time when it was.
5. Smith, supra note 1, at 14.
6. Id. at 14-15.
7. See generally Sophia Z. Lee, Hotspots in a Cold War: The NAACP's Postwar Workplace Constitutionalism, 1948-1964, 26 Law & Hist. Rev. 327 (2008).
8. Cf. William N, Eskridge, Jr. & John Ferejohn, A Republic of Statutes, pt. 1 at 3, ch. 1 at 10-13, 54, 65 (forthcoming 2010). Eskridge and Ferejohn use the term "administrative constitutionalism" to refer to the process by which legislators, executives, and administrators work out "America's fundamental normative commitments", a process that "include[s] but [is] not limited to Constitutional analysis."
9. See also Gillian Metzger, Ordinary Administrative Law as Constitutional Common Law, 110 Colum. L. Rev. 480, 485 (forthcoming 2010) (using the term "administrative constitutionalism" to refer to judges using administrative law to require that administrative agencies consider constitutional concerns when designing or implementing policy).
10. Agencies' independence from both the President and Congress is hotly contested. Debates about presidential control tend to center on control over the removal of agency heads, agency litigation, and regulatory action.
11. See, e.g., Stephen G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (2008) (arguing that departmentalist constitutional theory supports a unitary executive who retains the right to remove agency heads at will, notwithstanding statutory language to the contrary) ;
12. Neal Devins, Unitariness and Independence: Solicitor General Control over Independent Agency Litigation, 82 Cal. L. Rev. 255, 260-61, 264 (1994) (noting the wide variation in agencies' authority to represent themselves before the lower courts and arguing that, even before the Supreme Court, there are circumstances under which agency lawyers, rather than the Solicitor General, should be authorized to litigate on the agency's behalf) ;
13. Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2253 (2001) (arguing for the further elaboration of presidential control over agencies' regulatory activities). As a practical matter, however, much of the day-to-day operation of agencies occurs free from presidential direction.
14. See Lisa Schultz Bressman & Michael P. Vandenbergh, Inside the Administrative State: A Critical Look at the Practice of Presidential Control, 105 Mich. L. Rev. 47, 47-52 (2006) (finding weak empirical support for presidential control of agencies) ;
15. Peter L. Strauss, Overseer, or "The Decider"?: The President in Administrative Law, 75 Geo. Wash. L. Rev. 696, 704-05 (2007) (arguing that regulatory action proceeds, and should remain, independent of presidential direction). Likewise, empirical studies find Congress to have limited, but hardly comprehensive, control of agencies.
16. See Anne Joseph O'Connell, Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State, 94 Va. L. Rev. 889, 967-71 (2008) (finding that transitions in the partisan control of Congress have some influence on agency action) ;
17. David B. Spence, Managing Delegation Ex Ante: Using Law to Steer Administrative Agencies, 28 J. Legal Stud. 413, 445-46 (1999) (finding some effective congressional use of agency design to control agency decisionmaking but finding that control limited).
18. Some officials discussed herein interpreted the law for other administrative offices, some advocated within government, and still others implemented laws. All three types of officials-interpreters, advocates, and implementers-administered equal protection in ways that creatively extended, diverged from, and even directly disagreed with court doctrine. This Article, which outlines the general phenomenon of administrative constitutionalism and recovers the particular constitutional doctrines embraced during this episode of it, emphasizes these regulators' common participation in this form of constitutional governance. Future work could productively explore differences in the administrative constitutionalism regulators produce, for instance by administrative function (for example, interpreters versus advocates) or institutional location (for example, executive departments versus independent agencies).
19. State, local, and federal governments regulated economic actors long before the New Deal. See Brian Balogh, A Government Out of Sight: The Mystery of National Authority in Nineteenth-Century America (2009) ;
20. William J. Novak, The People's Welfare: Law and Regulation in Nineteenth-Century America (1996) ;
21. Jerry L. Mashaw, Administration and "The Democracy": Administrative Law from Jackson to Lincoln, 1829-1861, 117 Yale L. J. 1568, 1628-33 (2008). The New Deal, however, marked a sea change in the scope and depth of economic regulation.
22. Cf. Reuel E. Schiller, The Administrative State, Front and Center: Studying Law and Administration in Postwar America, 26 Law & Hist. Rev. 415, 422-23 (2008) (noting that administrators' role as constitutional actors is little-studied by legal historians).
23. In general, negative rights entitle the right-holder to be free from certain forms of government interference. In contrast, affirmative (or positive) rights entitle the rightholder to a good or service. See Mark Tushnet, An Essay on Rights, 62 Tex. L. Rev. 1363, 1392-94 (1984).
24. In practice, the line between affirmative and negative rights can blur. See Susan Bandes, The Negative Constitution: A Critique, 88 Mich. L. Rev. 2271, 2278-308 (1990) (arguing that the affirmative/negative distinction is neither a coherent nor useful distinction because the precepts underlying it are too indeterminate and imprecisely descriptive) ;
25. see also infra notes 369-74 and accompanying text.
26. This Article also expands scholarship on administrators' central role in developing civil rights policy during the 1960s and 1970s by demonstrating that the Constitution was a source for these policies. See, e.g., Hugh Davis Graham, The Civil Rights Era: Origins and Development of National Policy, 1960-1972 (1990) ;
27. John D. Skrentny, The Minority Rights Revolution (2002). For earlier instances of administrative civil rights
28. see Barbara Young Welke, Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 1865-1920, at 344 (2001) ;
29. Anthony S. Chen, "The Hitlerian Rule of Quotas": Racial Conservatism and the Politics of Fair Employment Legislation in New York State, 1941-1945, 92 J. Am. Hist. 1238 (2006) ;
30. Timothy M. Thurber, Racial Liberalism, Affirmative Action, and the Troubled History of the President's Committee on Government Contracts, 18 J. Pol'y Hist. 446 (2006).
31. Early examples ripe for further exploration include the Freedmen's Bureau, which implemented its understanding of such constitutionally resonant concepts as "free labor" and "equal rights." See, e.g., Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876, at 31-32, 200-01 nn. 23-24 (1985) (describing briefly how Freedmen's Bureau officials enforced "equal protection of the laws" as well as the First Amendment) ;
32. Amy Dru Stanley, From Bondage to Contract: Wage Labor, Marriage, and the Market in the Age of Slave Emancipation 35-39 (1998) (discussing how Freedmen's Bureau officials created, rather than merely implemented, the meaning of free labor). Administrative constitutionalism has involved subjects other than civil rights.
33. See Reuel E. Schiller, Free Speech and Expertise: Administrative Censorship and the Birth of the Modern First Amendment, 86 Va. L. Rev. 1, 3-4, 101 (2000) (examining how judicial deference to agency interpretation of statutes gives agencies a de facto role in determining the scope of First Amendment protections) ;
34. cf. Anuj C. Desai, Wiretapping Before the Wires: The Post Office and the Birth of Communications Privacy, 60 Stan. L. Rev. 553, 568 (2007) (describing how Congress and the Post Office developed communications privacy based on nonconstitutional principles, a policy the Supreme Court later incorporated into its interpretation of the Fourth Amendment). In addition, administrative constitutionalism is not only a historical phenomenon.
35. See infra Section III. B.
36. Canonical instances include Perry v. Sindermann, 408 U. S. 593 (1972)
37. which held that the First and Fourteenth Amendments limit state officials' ability to terminate some employment contracts, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U. S. 388 (1971)
38. which found a Fourth Amendment cause of action against federal agents, and Goldberg v. Kelly, 397 U. S. 254 (1970), which ruled that due process requires that welfare agencies not terminate recipients without first providing them with a hearing. For an illuminating account of state judges' post-World War II development of constitutional checks on administration
39. see William E. Nelson, The Legalist Reformation: Law, Politics, and Ideology in New York, 1920-1980, at 240-68 (2001).
40. See, e.g., Jerry L. Mashaw, Norms, Practices, and the Paradox of Deference: A Preliminary Inquiry into Agency Statutory Interpretation, 57 Admin. L. Rev. 501, 507-08 (2005) (noting the multiple ways administrative actors must take the Constitution into consideration, including providing due process and conforming with search and seizure restrictions) ;
41. David A. Strauss, Presidential Interpretation of the Constitution, 15 Cardozo L. Rev. 113, 113-14 (1993) (noting that administrators are often called on to implement the Constitution).
42. Compare, e.g., William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 Geo. L. J. 1083, 1092, 1180-81, 1184 (2008)
43. (arguing that courts should not defer to agencies if their statutory interpretations raise serious constitutional problems), and Cass R. Sunstein, Beyond Marbury: The Executive's Power to Say What the Law Is, 115 Yale L. J. 2580, 2608-10 (2006) (accord)
44. with Kenneth A. Bamberger, Normative Canons in the Review of Administrative Policymaking, 118 Yale L. J. 64 (2008) (arguing that courts should review agencies' compliance with constitutional norms with the same deference they do agencies' interpretation of statutes). To the extent that agencies' policies raise serious constitutional questions, courts generally will not defer to them.
45. See, e.g., Solid Waste Agency v. U. S. Army Corps of Eng'rs, 531 U. S. 159, 172-74 (2001) (holding that where an administrative interpretation of a statute raises significant constitutional questions Congress did not expressly intend for the statute to raise, the court is not required to defer to the interpretation) ;
46. Williams v. Babbitt, 115 F.3d 657, 661-63 (9th Cir. 1997) (finding that courts should deny an agency action Chevron deference if, on skeptical review, it raises "serious" constitutional concerns).
47. But cf. FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1811-12 (2009) (declining to "apply a more stringent arbitrary-andcapricious review to agency actions that implicate constitutional liberties").
48. Compare Sunstein, supra note 15, at 2608-10 (arguing that administrators should interpret their powers conservatively unless expressly directed by Congress to do otherwise)
49. with Mashaw, supra note 14, at 508-09 (contending that agencies should not avoid constitutional questions)
50. Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 Colum. L. Rev. 1189 (2006) (arguing that in some circumstances executive branch officers should not employ the avoidance canon even if a court would), and
51. H. Jefferson Powell, The Executive and the Avoidance Canon, 81 Ind. L. J. 1313 (2006) (arguing against the executive branch, including administrative agencies, interpreting statutes so as to avoid constitutional problems).
52. Robert Post & Reva Siegel, Popular Constitutionalism, Departmentalism, and Judicial Supremacy, 92 Cal. L. Rev. 1027, 1031-32 (2004) (distinguishing between popular constitutionalist and departmentalist claims, but noting that they can, at times, overlap).
53. But see Dawn E. Johnsen, Functional Departmentalism and Nonjudicial Interpretation: Who Determines Constitutional Meaning?, 67 Law & Contemp. Probs. 105, 111 (2004) (describing popular constitutionalism as a strain of departmentalism).
54. Because of this emphasis on elective government as a filter for popular constitutional norms, this literature, while it studies Congress and the President, is best understood as popular constitutionalism. Cf. Bruce Ackerman, The Living Constitution, 120 Harv. L. Rev. 1737, 1805-12 (2007) (arguing that the interaction of judicial and democratic processes can produce fundamental changes in the Constitution itself, not merely in Supreme Court doctrine). The popular constitutionalism literature is extensive.
55. See, e.g., Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (2009) (contending that the Supreme Court harmonizes its opinions with popular views over time) ;
56. Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004) (arguing that initially the people and their elected representatives, not the courts, had final interpretive authority, and positing that the later turn toward judicial supremacy has been bad for democracy and constitutional law) ;
57. Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning (1999) (arguing that constitutional law emerges from a conversation among political actors that is permeable to popular and democratic forces) ;
58. Jack M. Balkin & Sanford Levinson, The Processes of Constitutional Change: From Partisan Entrenchment to the National Surveillance State, 75 Fordham L. Rev. 489, 533-35 (2006) (updating their theory of partisan entrenchment through which electoral politics and judicial appointments shape doctrine) ;
59. Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 Harv. C. R.-C. L. L. Rev. 373, 374 (2007) (arguing that "the authority of the Constitution depends on its democratic legitimacy", which is forged from popular contest over constitutional meaning and elected officials who "resist and respond to these citizen claims").
60. See, e.g., H. Jefferson Powell, A Community Built on Words: The Constitution in History and Politics 6 (2002) (arguing that recognizing constitutional law as "historically conditioned and politically shaped" gives it "integrity and coherence") ;
61. Post & Siegel, supra note 18, at 374-79.
62. Again, this literature is quite extensive and dates back to the early days of the republic. See Calabresi & Yoo, supra note 6, at 23;
63. see, e.g., Christopher L. Eisgruber, The Most Competent Branches: A Response to Professor Paulsen, 83 Geo. L. J. 347, 348 (1994) (arguing for a moderate theory of departmentalism based on institutional competency) ;
64. Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L. J. 217 (1994) (contending that, within the spheres of the President's governing powers, her authority cannot be bound by the other branches).
65. Johnsen, supra note 17, has a useful discussion of this literature at 116-18.
66. Post & Siegel, supra note 17, at 1032.
67. As Post and Siegel point out, Larry Kramer is an example of a popular constitutionalist who also embraces strong departmentalism.
68. Id. at 1031;
69. see also Kramer, supra note 18, at 109. Likewise, departmentalists who emphasize interbranch dialogue and rely on history share much in common with popular constitutionalists.
70. See, e.g., Calabresi & Yoo, supra note 6, at 22-29.
71. Reuel Schiller demonstrates that when agencies' animating statutes use constitutionally significant terms, courts' deferential review can give agencies a de facto role in determining the scope of these constitutional categories. Schiller, supra note 12, at 4-5;
72. Schiller, supra note 9, at 422.
73. His work opens the question of how agencies make use of this deference. Bob Jones University v. United States, 461 U. S. 574, 586-95 (1983), which allowed the IRS to take equal protection values into consideration in meeting its statutory duty, also invites work on how agencies actually use the Constitution.
74. Strauss, supra note 14, at 115, surmises that most government attorneys apply an "is it defensible" approach to deciding whether administrative action comports with the Constitution, and suggests some principles that should guide their constitutional interpretations.
75. His work is intriguing, but it is not based on empirical analysis. Mashaw, supra note 14, at 507-09, recognizes that there is little empirical evidence of agencies' interpretive practices. His work importantly begins to develop evidence of agencies' statutory, but not constitutional, interpretation.
76. Cf. Metzger, supra note 5, at 497 (arguing that courts should use administrative law to "foster[] a more affirmative and independent agency role in implementing constitutional requirements") ;
77. Ernest A. Young, The Constitution Outside of the Constitution, 117 Yale L. J. 408, 411-12 (2007) (arguing that most important constitutional questions are resolved not by courts applying constitutional text, but by a range of government actors, including administrators, considering subconstitutional norms).
78. Dawn E. Johnsen, Ronald Reagan and the Rehnquist Court on Congressional Power: Presidential Influences on Constitutional Change, 78 Ind. L. J. 363, 383-90 (2003) (demonstrating how President Reagan's Attorney General and Office of Legal Policy promulgated constitutional interpretations deeply at odds with Supreme Court precedent, but focusing on how these interpretations expanded presidential power and were used to affect judicial doctrine) ;
79. Cornelia T. L. Pillard, The Unfulfilled Promise of the Constitution in Executive Hands, 103 Mich. L. Rev. 676 (2005) (studying the interpretive practices of the OLC and Solicitor General) ;
80. H. Jefferson Powell, The President's Authority Over Foreign Affairs: An Executive Branch Perspective, 67 Geo. Wash. L. Rev. 527, 530 (1999) (basing his analysis in part on OLC and Attorney General opinions, with the exception of two State Department documents).
81. But see Eskridge & Ferejohn, supra note 5, at 10-13, 44-45 (providing a welcome, if brief, look at how the Equal Employment Opportunity Commission considered equal protection, among other factors, in designing pregnancy discrimination policy). For my previous exploration of administrators' constitutional interpretations
82. see Lee, supra note 4.
83. On the value of positive constitutional theory, see Jack M. Balkin, What Brown Teaches Us About Constitutional Theory, 90 Va. L. Rev. 1537, 1576 (2004), and
84. Barry Friedman, The Importance of Being Positive: The Nature and Function of Judicial Review, 72 U. Cin. L. Rev. 1257 (2004). On the particular need for empirically grounded theories of executive branch (and by extension administrative) constitutionalism
85. see Pillard, supra note 23, at 679-80.
86. That these administrators creatively expanded or narrowed Supreme Court doctrine is unlikely to come as a surprise. Indeed, Strauss, supra note 14, at 133, surmises that administrators do not cleave cautiously to Supreme Court precedent when considering the constitutionality of their actions. Strauss suspects that administrators instead feel constrained by judicial opinions only insofar as they adopt positions that they could credibly defend in court. Strauss's account may not fully capture administrators' creative interpretations: this history shows administrators espousing arguments they have been advised a court would not likely adopt and relying on sources a court would not likely consider. Either way, this history suggests that in practice administrators' creative interpretations can yield unexpected and widely divergent results, making this seemingly unremarkable practice appear far more significant. Whether administrators' creative interpretations are surprising in the abstract, they are essential to understanding administration's effect on what it means to be governed by the Constitution.
87. See Carl M. Brauer: John F. Kennedy and the Second Reconstruction 67-75, 315-16 (1977) ;
88. see also Marvin Weisbord, Civil Rights on the New Frontier, Progressive, Jan. 1962, at 15.
89. But see Nick Bryant, The Bystander: John F. Kennedy and the Struggle for Black Equality (2006) (emphasizing Kennedy's weak commitment to civil rights in the early years of his administration).
90. Exec. Order No. 10925, 26 Fed. Reg. 1977 (Mar. 8, 1961).
91. John F. Kennedy, Press Conference in Washington, D. C. (Nov. 20, 1962), available at http://www.jfklibrary.org/Historical+Resources/Archives/ Reference+Desk/Press+Conferences/003POF05Pressconference45-11201962.htm [hereinafter Kennedy Press Conference];
92. see also Exec. Order No. 11063, 27 Fed. Reg. 11, 527 (Nov. 20, 1962) (declaring discrimination in federally financed housing "unfair, unjust, and inconsistent with the public policy of the United States as manifested in its Constitution and laws"). It is unclear whether Kennedy meant that the policy was constitutional because it implemented, or because it did not violate, the Constitution. The transcript of his oral comment inserts commas between the four words, emphasizing the latter meaning, but a transcription without the commas would emphasize the former.
93. The OLC was the Department of Justice ("DOJ") office tasked with providing legal advice to the executive and to administrative agencies.
94. Memorandum from Nicholas deB. Katzenbach, Assistant Attorney Gen. ("AAG"), OLC, DOJ, to Mr. MacGuiness, AAG, Civil Division, DOJ 11 (Aug. 4, 1961) (Department of Justice Records, National Archives and Records Administration at College Park, John F. Kennedy Library, micro-copy NK-2, roll 91, "Employment" [hereinafter DOJ micro-copy]) (enclosing draft opinion).
95. Memorandum from Ralph S. Spritzer, Assistant to the Solicitor Gen., to Nicholas deB. Katzenbach, AAG, OLC (Aug. 8, 1961) (DOJ micro-copy).
96. Memorandum from James L. Morrisson to Nicholas deB. Katzenbach, AAG, OLC (Oct. 8, 1961 (file date)) (DOJ micro-copy).
97. Opinion from Robert F. Kennedy, Attorney Gen., to Lyndon B. Johnson, Vice President (Sept. 26, 1961) (DOJ micro-copy). The final opinion, unlike the draft, did not mention a "duty" not to discriminate.
98. Id. at 11-12.
99. Memorandum from James L. Morrisson to Nicholas deB. Katzenbach, supra note 32.
100. Memorandum from N. Thompson Powers, Special Counsel, PCEEO, to Norbert A. Schlei, AAG, OLC, DOJ 1 (July 8, 1963) [hereinafter Powers Memo] (DOJ microcopy) (enclosing FCC memo).
101. Id. (emphasis added).
102. Id.
103. Id.
104. In 1883, in the Civil Rights Cases the Supreme Court determined that the Constitution's equality guarantees only constrained actions taken by the state and its agents. 109 U. S. 3, 23-25 (1883). The decision struck down Section 1 of the Civil Rights Act of 1875, which Congress had passed pursuant to its Fourteenth Amendment enforcement powers. Section 1 prohibited discrimination against African Americans by the owners of public conveyances and accommodations.
105. Id. at 19. By deeming these businesses' decisions quintessentially private, the Supreme Court established that economic decisions were outside the Fourteenth Amendment's reach. For historical treatment
106. see Welke, supra note 11, at 336-43
107. and William E. Nelson, The Fourteenth Amendment: From Principle to Judicial Doctrine 194-95 (1988).
108. 334 U. S. 1, 20 (1948) ;
109. see also Barrows v. Jackson, 346 U. S. 249, 253-54 (1953) (holding that court awards of damages for the violation of a racially restrictive covenant were state action in violation of the Fourteenth Amendment).
110. Powers Memo, supra note 35, at 2.
111. Id. This Article uses the term "sanctioning" as did the historical actors whose words it captures: to mean to "encourage by... implied approval." Oxford English Dictionary 441 (2d ed. 1989).
112. U. S. 451 (1952) ;
113. Powers Memo, supra note 35, at 2.
114. Powers Memo, supra note 35, at 2
115. (quoting Pollak, 343 U. S. at 462).
116. The FCC attorneys misquoted Pollak, which used the term "relation" rather than "relationship. " Regardless of phrasing, the portion of Pollak on which the FCC attorneys relied was dicta, as the Court ultimately assumed state action was present and upheld the challenged policy on the grounds that even so, the policy would not violate the First or Fifth Amendments. Pollak, 343 U. S. at 462-65.
117. Powers Memo, supra note 35, at 3.
118. U. S. 715 (1961).
119. Id. at 725.
120. Id. at 726.
121. Id. at 725.
122. Id. at 726. Burton contained language, and cited lower court opinions holding, that government actors had an affirmative duty to ensure that those with whom they participated afforded equal protection.
123. See infra note 70. Interestingly, the FCC attorneys did not rely on these precedents when arguing that the FCC must consider the employment practices of its regulated industries.
124. Powers Memo, supra note 35, at 3. The FCC attorneys did not discuss lower court precedent.
125. The most relevant case they could have cited would probably have been Betts v. Easley. 169 P.2d 831 (Kan. 1946) (finding unions certified by a federal labor board to be state actors) ;
126. cf. City of Greensboro v. Simkins, 246 F.2d 425 (4th Cir. 1963) (finding that, under Burton, private hospitals that received significant public funds and were part of a "joint or intermeshing state and federal... program[]" were state actors) ;
127. Baldwin v. Morgan, 287 F.2d 750, 755 (5th Cir. 1961) (finding private entities to be state actors when they perform a public function).
128. Powers Memo, supra note 35, at 3.
129. Id.
130. Memorandum from Norbert A. Schlei, AAG, OLC, to N. Thompson Powers, Special Counsel, PCEEO (circa July 8, 1963) (DOJ micro-copy).
131. Id.
132. Hearing on H. R. 7152 Before the H. Comm. on the Judiciary, 88th Cong. 2656 (1963) (statement of Robert F. Kennedy, Attorney Gen. of the United States) [hereinafter Kennedy House Statement].
133. Hearing on S. 1731 Before the S. Judiciary Comm., 88th Cong. 5 (1963) (statement of Robert F. Kennedy, Attorney Gen. of the United States) (MGLI 13.2479, Howard A Glickstein Papers, University of Notre Dame Archives, Notre Dame, IN [hereinafter Glickstein Papers]).
134. Id.
135. Id.
136. Kennedy House Statement, supra note 56, at 2698-700.
137. Id. at 2699.
138. Id.
139. Civil Rights Act of 1964, 42 U. S. C. § 2000a (b), (d) (2006).
140. U. S. 226 (1964).
141. Id. at 242, 286, 318.
142. Id. at 333.
143. See United States v. Price, 383 U. S. 787, 794-95 n. 7 (1966) (stating that Burton and Pollak stood for the principle that state action existed anytime a state had so insinuated itself with a private actor as to have become a joint participant) ;
144. Evans v. Newton, 382 U. S. 296, 301-02 (1966) (holding that a privately deeded but publicly managed and funded park had become so imbricated with the state that it would be unconstitutional to revert it in order to restore it to the segregated use the testator had required).
145. U. S. 369, 380-81 (1967) (declaring unconstitutional an amendment to the California State Constitution that annulled a state law banning discrimination in housing because it "significantly encouragefd] and involve[d] the State in private discriminations").
146. John Silard, A Constitutional Forecast: Demise of the "State Action" Limit on the Equal Protection Guarantee, 66 Colum. L. Rev. 855, 855 (1966).
147. The idea that administrators are affirmatively obligated to implement the Constitution proved less controversial than the FCC attorneys' state action theories. Alexander Bickel lauded Kennedy's promise to commit his administration "to 'equal protection' as a rule of independent, self-starting political and administrative action, rather than merely as an obligation to uphold the courts."
148. Alexander Bickel, The Civil Rights Act of 1964, 38 Comment. 33, 33 (1964). Burton also implied that a city agency had an affirmative obligation to ensure that its lessee did not discriminate.
149. See supra note 50. Charles Black thought the Court was verging on holding that the Constitution required those within its state action orbit to take affirmative steps to end racial discrimination. Charles L. Black, Jr., Foreword: "State Action", Equal Protection, and California's Proposition 14, 81 Harv. L. Rev. 69, 97-98 (1967).
150. Jerry L. Mashaw, The Story of Motor Vehicle Manufacturers Association of the U. S. v. State Farm Mutual Automobile Insurance Co.: Law, Science and Politics in the Administrative State, in Administrative Law Stories 334, 339-42 (Peter L. Strauss ed., 2006) ;
151. Reuel E. Schiller, Rulemaking's Promise: Administrative Law and Legal Culture in the 1960s and 1970s, 53 Admin. L. Rev. 1139, 1140 (2001).
152. Thanks to Alan Schoenfeld for emphasizing this distinction. See also Graham, supra note 11, at 465-66 (describing the rise of rulemaking as part of a "wholesale rather than retail" and "more legislative than adjudicatory" approach to administration).
153. Petition from Orrin G. Judd & Earle K. Moore, Goldstein, Judd & Gurfein, Counsel, Office of Communication, Board for Homeland Ministries, and Committee for Racial Justice Now of the United Church of Christ, to FCC, Docket No. 18244 ¶¶ 1-2 (Apr. 21, 1967) (Hearing Docket Files, FCC, Record Group 173, National Archives, FRC Box 2, Folder 1 [hereinafter FCC Docket 18244]).
154. Id. ¶¶1-2.
155. Id. 14.
156. See, e.g., Letter from Alan Reitman, Associate Dir., American Civil Liberties Union ("ACLU"), to Hon. Rosel H. Hyde, Chairman, FCC (July 31, 1967) (FCC Docket 18244, FRC Box 2, Folder 1) ;
157. Statement from Esteban E. Torres, Secretary-Treasurer, Washington Council of the League of United Latin-American Citizens, to FCC (June 15, 1967) (FCC Docket 18244, FRC Box 2, Folder 1) ;
158. Statement from Leonard Lesser, General Counsel, Industrial Union Department, AFL-CIO, to FCC (June 13, 1967) (FCC Docket 18244, FRC Box 2, Folder 1) ;
159. Memorandum from Hon. Edward M. Kennedy, U. S. Senate, to Congressional Liaison Office, FCC (Apr. 26, 1967) (FCC Docket 18244, FRC Box 2, Folder 1) ;
160. see also Letter from Rev. Everett C. Parker, Dir., Office of Commc'n, United Church of Christ, to President Lyndon B. Johnson (June 7, 1967) (FCC Docket 18244, FRC Box 2, Folder 1) (using margin strikes to highlight the President's "strong endorsement" of the proposed rule).
161. See, e.g., Art Peters, What the Negro Wants from TV, TV Guide, Jan. 20, 1968, (FCC Docket No. 18244, FRC Box 2, Folder 1) ;
162. Douglas Robinson, New Media Charged With Giving False Image of Minorities, N. Y. Times, Jan. 18, 1968, at 28, (FCC Docket No. 18244, FRC Box 2, Folder 1).
163. See, e.g., Letter from Hon. Charles E. Cobb, Executive Coordinator, Comm. for Racial Justice Now, to Sen. Clifford P. Case (Feb. 9, 1968) (FCC Docket No. 18244, FRC Box 2, Folder 1).
164. H. R. 16586, 90th Cong. (1968). This bill probably did not put much pressure on the FCC, as it most likely was never considered by the House committee to which it was referred.
165. Letter from Rep. Samuel N. Friedel to Hon. Rosel H. Hyde, Chairman, FCC 2 (Aug. 23, 1968) (FCC Docket No. 18244, FRC Box 2, Folder 1) [hereinafter Friedel Letter].
166. See, e.g., Letter from Sen. John Conyers, Jr., to Hon. Rosel H. Hyde, Chairman, FCC, (July 13, 1967) (FCC Docket No. 18244, FRC Box 2, Folder 1) ("The airways are a public utility and they are leased to station managers to be used in the interest of the public. It is therefore incumbent upon the licensees to adopt the policies and practices of the federal government in employment.").
167. Statement from Robert L. Carter & Barbara A. Morris, Counsel for the
168. See generally Lee, supra note 4.
169. N. L. R. B. 1573, 1574 (1964) ;
170. see Lee, supra note 4, at 329-30.
171. See generally Michael R. Botson, Jr., Labor, Civil Rights, and the Hughes Tool Company (2005).
172. Hughes Tool, 147 N. L. R. B. at 1574, 1577.
173. Kennedy House Statement, supra note 56, at 2656.
174. Statement from Robert L. Carter & Barbara A. Morris, supra note 81.
175. Letter from Stephen J. Pollak, AAG, Civil Rights Division ("CRD"), to Hon. Rosel H. Hyde, Chairman, FCC (May 21, 1968)
176. in Nondiscrimination in Employment Practices of Broadcast Licensees, App. A, 33 Fed. Reg. 9960, 9964-65 (July 11, 1968) (to be codified at 47 C. F. R. pt. 73) [hereinafter Pollak Letter].
177. See A Conversation with Stephen J. Pollak, Bar Report, Dec/Jan. 2000, http://www.dcbar.org/for-lawyers/resources/legends-in-the-law/pollak.cfm.
178. Pollak Letter, supra note 87, at 9964.
179. Id.
180. Id.
181. Id.
182. For a history of the challenge, see Kay Mills, Changing Channels: The Civil Rights Case that Transformed Television (2004).
183. Gerald V. Flannery, Commissioners of the FCC 1927-1994, at 129-31 (1995).
184. Id. at 75-76.
185. Id. at 76-77.
186. Id.
187. Id.
188. Id. at 147-48.
189. Nondiscrimination in Employment Practices of Broadcast Licensees, 33 Fed. Reg. 9960 (July 11, 1968) (to be codified at 47 C. F. R. pt. 73).
190. Id. ¶ 4.
191. Id. ¶¶ 4, 9.
192. Id. ¶8.
193. Id.
194. Powers Memo, supra note 35.
195. Nondiscrimination in Employment Practices of Broadcast Licensees, 33 Fed. Reg. ¶ 9.
196. Id. ¶10.
197. Id. ¶ 11.
198. Id. ¶¶ 13-16. These differences encapsulated a larger debate about what, precisely, constituted "discrimination", hiring disparities or employer motive, and whether it was a systemic problem needing broad remedies or an individual injury requiring case-by-case resolution.
199. Id. ¶14.
200. Id. ¶17.
201. See id. ¶21.
202. See, e.g., Friedel Letter, supra note 79, at 1-2;
203. Letter from Clifford L. Alexander, Jr., Chairman, Equal Employment Opportunity Commission ("EEOC"), to Rosel H. Hyde, Chairman, FCC 1 (Aug. 20, 1968) (FCC Docket 18244, FRC Box 2, Folder 1).
204. See, e.g., Comment from Earle K. Moore & Edward A. Bernstein, Counsel for Petitioners, to FCC 3-4 (Oct. 7, 1968) (FCC Docket 18244, FRC Box 2, Folder 1) ;
205. Comment from Robert L. Carter, Gen. Counsel, NAACP, to FCC 3 (Sept. 6, 1968) (FCC Docket 18244, FRC Box 2, Folder 1).
206. Letter from Howard A. Glickstein, Acting Staff Dir., U. S. Comm'n on Civil Rights, to Hon. Rosel H. Hyde, Chairman, FCC A-2-A-5 (Sept. 9, 1968) (FCC Docket 18244, FRC Box 2, Folder 1) [hereinafter Glickstein Letter].
207. Powers Memo, supra note 35.
208. Glickstein Letter, supra note 115, at 3.
209. Id.at 4.
210. Id.
211. See supra notes 65-69 and accompanying text.
212. Glickstein Letter, supra note 115, at A-2 (emphasis added).
213. Glickstein also cited City of Greensboro v. Simkins, 246 F.2d 425 (4th Cir. 1963), described supra note 51.
214. Glickstein Letter, supra note 115, at A-3.
215. Id. at A-2.
216. Id. at A-4.
217. Id.
218. Id. at A-7.
219. Id. at 2.
220. Nondiscrimination in Employment Practices of Broadcast Licensees, 33 Fed. Reg. 9960, 9961 ¶ 4 (July 11, 1968) (to be codified at 47 C. F. R. pt. 73).
221. Letter from Ward McCreedy, Acting Dir., Office of Fed. Contract Compliance, Dep't of Labor, to Hon. Rosel H. Hyde, Chairman, FCC 1 (Nov. 12, 1968) (FCC Docket No. 18244, FRC Box 2, Folder 2) [hereinafter McCreedy Letter].
222. See Catherine Harris, Recollections of John Rayburn, EEOC Employee, 1965-1984 (Dec. 10, 1999), http://www.eeoc.gov/eeoc/history/35th/voices/oral- historyjohn-rayburn-catherine-harris.wpd.html.
223. See Graham, supra note 11, at 330-31 (describing a Department of Labor brief that defended OFCC's affirmative action policy on the grounds that it fulfilled the President's equal protection obligations).
224. See generally supra notes 26-53 and accompanying text.
225. See supra note 52 and accompanying text.
226. McCreedy Letter, supra note 128, at 1.
227. Id.
228. Id. at 2.
229. Dan T. Carter, The Politics of Rage: George Wallace, the Origins of the New Conservatism, and the Transformation of American Politics 326-70 (1995) (tracing the racial resonance of Nixon's "law and order" campaign).
230. Nondiscrimination in Employment Practices, Report and Order, 34 Fed. Reg. 9284 (June 6, 1969).
231. Powers Memo, supra note 35.
232. Nondiscrimination in Employment Practices, Report and Order, 34 Fed. Reg. at 9284.
233. Id.
234. Powers Memo, supra note 35.
235. Nondiscrimination in Employment Practices, Report and Order, 34 Fed. Reg. at 9286.
236. Id. at 9285
237. (quoting Alabama v. United States, 304 F.2d 583, 586 (5th Cir. 1962)).
238. The quote referred to the use of statistics in voting registration and jury composition cases. The FCC also requested comments on what forms it should use to satisfy its new rule's reporting requirements. Nondiscrimination in Employment Practices, Further Notice of Proposed Rulemaking, 34 Fed. Reg. 9288 (June 12, 1969) (to be codified at 47 C. F. R. pts. 0, 1). During this period, a National Organization for Women ("NOW") chapter requested that the FCC add sex to its nondiscrimination policy.
239. Letter from Cindy Judd Hill, Pub. Relations Dir., Greater Pittsburgh Area Chapter of NOW, to Ben F. Waple, Sec'y, FCC (Sept. 25, 1969) (FCC Docket 18244, FRC Box 2, Folder 2).
240. The following summer when the FCC announced its new rule, it did so. Non-Discrimination in Employment Practices of Broadcast Licensees, Report and Order, 35 Fed. Reg. 8825, 8825, 8827 (June 6, 1970) (to be codified at 47 C. F. R. pt. 73).
241. Flannery, supra note 94, at 145, 154-55. Dean Burch became Chair October 31, 1969.
242. Id. His predecessor, Rosel Hyde, was also not a movement activist.
243. See supra notes 95-98 and accompanying text. Robert Wells was sworn in on November 6, 1969.
244. Communications Common Carriers, Non-Discrimination in Employment Practices, 34 Fed. Reg. 19200, 19200-01 (Dec. 4, y1969) (to be codified at 47 C. F. R. pts. 0, 1, 21, 23).
245. Id. at 19200.
246. Id. at 19200-01.
247. Id. There were also potentially significant differences between the two industries in terms of a state action analysis. For instance, the FCC's regulatory relationship with broadcasters was more involved than its relationship with common carriers. As a result, the argument that the FCC's regulatees were state actors under a significantinvolvement theory of state action was weaker for common carriers than for broadcasters.
248. Id. at 19201.
249. Id.
250. Id.
251. Non-Discrimination in Employment Practices of Communications Common Carriers, Report and Order, 35 Fed. Reg. 12892, 12894 (Aug. 14, 1970) (to be codified at 47 C. F. R.pts.0, 1).
252. Id. at 12895.
253. Id. at 12893.
254. See Petitions Opposing Proposed AT&T System Increased Tariff Schedules and for Other Relief (Jan. 6, 1971) (Docket 19129, Hearing Docket files, FCC, Record Group 173, National Archives, FRC Box 1, Binder 1).
255. See Lizabeth Cohen, A Consumers' Republic: The Politics of Mass Consumption in Postwar America 357 (2003) (dating 1967 to 1973 as the peak years of the consumer rights movement).
256. Marjorie A. Stockford, The Bellwomen: The Story of the Landmark AT&T Sex Discrimination Case 19 (2004) (noting that the EEOC staff found no precedent for its inter-agency intervention).
257. Memorandum in Support of EEOC Petition to Intervene from Stanley P. Hebert, General Counsel, & David A. Copus, Attorney, EEOC, to FCC 1 (Dec. 10, 1970) (EEOC v. AT&T, NAACP Papers, Part V, Box 353, Folder 1 [hereinafter EEOC v. AT&T Papers]).
258. Id. at 2.
259. Id. at 33-34
260. (citing Burton, 365 U. S. 715 (1961) ;
261. Pollak, 343 U. S. 451 (1952) ;
262. Simkins v. Moses H. Cone Memorial Hosp., 323 F.2d 959, 964 (4th Cir. 1963) (en banc) ;
263. Irvis v. Scott, 318 F. Supp. 1246, 1248 (M. D. Pa. 1970) ;
264. James v. Ogilvie, 310 F. Supp. 661 (N. D. 111. 1970) ;
265. Seidenberg v. McSorleys' Old Ale House, 308 F. Supp. 1253 (S. D. N. Y. 1969) ;
266. Ethridge v. Rhodes, 268 F. Supp. 83, 88 (S. D. Ohio 1967)).
267. Id. at 35.
268. Id. at 47.
269. Id.
270. (citing Burton, 365 U. S. at 725;
271. Potts v. Flax, 313 F.2d 284, 289 (5th Cir. 1963) ;
272. Ethridge, 268 F. Supp. at 87).
273. The Supreme Court first considered the status of sex discrimination under its post-Brown equal protection doctrine in the fall of 1971. Reed v. Reed, 404 U. S. 71, 72-73, 77 (1971) (striking down a state law giving preference to males for appointment as administrators of a deceased's estate).
274. On the popular constitutional claims the women's movement had made at their August 1970 Women's Strike for Equality, see Robert C. Post & Reva B. Siegel, Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act, 112 Yale L. J. 1943, 1988-93 (2003).
275. For a history of the feminist movement's constitutional strategy, see Serena Mayeri, Constitutional Choices: Legal Feminism and the Historical Dynamics of Change, 92 Cal. L. Rev. 755 (2004).
276. Aaron Porter, Norris, Schmidt, Green, Harris, Higginbotham & Associates: The Sociological Import of Philadelphia Cause Lawyers, in Cause Lawyering: Political Commitments and Professional Responsibilities 151-52 (Austin Sarat & Stuart Scheingold eds., 1998).
277. The Nixon Look: Regulatory Agencies Take Pro-Business Cast with New Nominees, Wall St. J., Sept. 25, 1969, at 1, 16;
278. see also Robert Young, Brown Sworn in Rights Job; Named Chief, Chi. Trib., May 7, 1969, at A8.
279. For a detailed account of the EEOC petition's origins, see Stockford, supra note 156, at 21-30.
280. Petition from David Cashdan, Berlin, Roisman & Kessler, Counsel for Cal. Rural Legal Assistance, & The Mex. Am. Legal Def. and Educ. Fund ("MALDEF"), to FCC (Jan. 18, 1971) (In the Matter of AT&T Transmittal No. 10989, NAACP Papers, Part V, Box 352, Folder 8) ;
281. Petition from David Cashdan, Berlin, Roisman & Kessler, Counsel for ACLU, to FCC (Jan. 18, 1971) (In the Matter of AT&T Transmittal No. 10989, NAACP Papers, Part V, Box 352, Folder 8) ;
282. Petition from David Cashdan, Berlin, Roisman & Kessler, Counsel for NAACP, to FCC (Jan. 18, 1971) (In the Matter of AT&T Revision of Tariff FCC No. 263; AT&T Transmittal No. 11027, NAACP Papers, Part V, Box 353, Folder 1).
283. Order of FCC (Jan. 21, 1971) (In the Matter of Petitions of the EEOC et al., Docket No. 19129, NAACP Papers, Part V, Box 352, Folder 8).
284. Robert J. Samuelson, FCC Checking AT&T for Bias: FCC to Investigate Charges of Discrimination at AT&T, Wash. Post, Jan. 22, 1971, at A1;
285. see also FCC Orders Hearing on Charges that AT&T Discriminates in Hiring: Accusations Were Made by Equal Employment Opportunity Unit Seeking to Block Rate Boost, Wall St. J., Jan. 22, 1971, at 10.
286. Samuelson, supra note 170, at A1.
287. Christopher Lydon, Job Bias at Bell Charged by Panel: 20, 000-Page Report Finds Women Are Oppressed - Policy on Blacks Scored, N. Y. Times, Dec. 2, 1971, at 1.
288. AT&T had two dozen subsidiary operating companies, referred to as the "Bell System." Phyllis A. Wallace, Introduction, in Equal Employment Opportunity and the AT&T Case 1 (Phyllis A. Wallace ed., 1976).
289. Lydon, supra note 172, at 30.
290. Grace Lichtenstein, AT&T Assailed as Racist Monopoly, N. Y. Times, May 9, 1972, at 33.
291. On the daily drama of the hearings, see Stockford, supra note 156, at 114-32;
292. see also Benton Williams, AT&T and the Private-Sector Origins of Private-Sector Affirmative Action, 20 J. Pol'y Hist. 542, 550-52 (2008) (detailing the hearings' "flood of angry testimony").
293. Sanford L. Jacobs, Women Employes [sic] Call Bell System Duties Boring, Oppressive: Operators Tell Bias Hearings of Harassing by Supervisors, Discriminatory Leave Policy, Wall St. J., May 12, 1972, at 24;
294. see also Wallace, supra note 172, at 1 (describing the Bell System, with close to 800, 000 employees, as the "largest private employer in the country").
295. Eileen Shanahan, A. T.&T. in Accord on Minority Jobs: U. S. Accepts 15-Month Plan on Hiring and Promotion, N. Y. Times, Sept. 21, 1972, at 29;
296. A. T.&T. Hiring Plan OKd, Chi. Trib., Sept. 21, 1972, at B8;
297. AT&T Sets Equal-Hiring Accord With GSA To Increase Women, Minorities in Top Jobs, Wall St. J., Sept. 21, 1972, at 5.
298. Harvey D. Shapiro, Women on the Line, Men at the Switchboard: Equal Employment Opportunity Comes to the Bell System, N. Y. Times Mag., May 20, 1973, at 26, 77.
299. For the backstory to the GSA's agreement with AT&T, see Stockford, supra note 156, at 150-64.
300. The bulk of this and the following paragraph are drawn from Stockford, supra note 156 at 150-199.
301. Id. at 183, 188-89 (noting that it was EEOC negotiators who pressed AT&T to agree to open craft and other well-paying jobs to minorities and women, as well as to provide back pay and promotional pay).
302. For disagreement about the settlement's effectiveness, compare id. at 212-13
303. and Lois Kathryn Herr, Women, Power, and AT&T: Winning Rights in the Workplace 156-63 (2003) (emphasizing the settlement's positive effect, particularly on women's opportunities)
304. with Venus Green, Race on the Line: Gender, Labor, and Technology in the Bell System, 1880-1980, at 237-42 (2001) (arguing that racism and sexism in the telecommunications industry changed little as a result of the AT&T settlement). Regardless of its long-term effects, the settlement is underappreciated in employment discrimination history. It preceded the better-known 1974 steel industry consent decree reached under Title VII.
305. Judith Stein, Running Steel, Running America: Race, Economic Policy, and the Decline of Liberalism 170-76 (1998). Whereas Title VII had previously transformed southern textile mills, the EEOC's action against AT&T accomplished in one fell swoop what had required workers to file hundreds of individual complaints in the textile industry.
306. Nancy MacLean, Freedom Is Not Enough: The Opening of the American Workplace ch. 3 (2006). Finally, the FCC adopted its equal employment rules, and the EEOC sought to enforce them, based, in part, on the Constitution, revealing a constitutional, as well as statutory, basis to private employers' changed practices.
307. William Chapman, AT&T Agrees to Pay Victims Of Alleged Discrimination, Wash. Post, Jan. 19, 1973, at 1;
308. Shapiro, supra note 177.
309. Douglas W. Cray, Job Discrimination Charges Grow: Federal Agency's Efforts Broaden, N. Y. Times, Mar. 4, 1973, at 170.
310. Shapiro, supra note 177, at 90.
311. Jo Anne Levine, Landmark Bias Case Settlement, Wash. Post, Sept. 9, 1973, at G1.
312. Id.
313. Id.
314. On Nixon's complicated civil rights record, see Graham, supra note 11, pt. 3
315. and Carter, supra note 135, ch. 13.
316. For his earlier civil rights positions, see Thurber, supra note 11.
317. Memorandum from Hobart Taylor, Jr., Special Counsel, PCEEO, to Nicholas deB. Katzenbach, AAG, OLC (Oct. 4, 1961) (DOJ micro-copy) (enclosing memo by PCEEO attorneys).
318. Id. at 6
319. (quoting Baldwin v. Morgan, 287 F.2d 750, 755 n. 9 (5th Cir. 1961)), 9-10.
320. Id. at 6, 10.
321. Id. at 11.
322. Letter from Nicholas deB. Katzenbach, AAG, OLC, to Hobart Taylor, Jr., Special Counsel, PCEEO 2 (Aug. 9, 1961) (DOJ micro-copy).
323. Id.
324. Memorandum from Richard K. Berg, Civil Rights Div. ("CRD"), DOJ, to Nicholas deB. Katzenbach, AAG, OLC (Oct. 10, 1961) (DOJ micro-copy).
325. Id.
326. Id.
327. Id.
328. Memorandum from Richard K. Berg, CRD, DOJ, to Files (Dec. 5, 1961) (DOJ micro-copy).
329. Memorandum from Richard K. Berg, CRD, DOJ, to Nicholas deB. Katzenbach, AAG, OLC, supra note 194;
330. Memorandum from Richard K. Berg, CRD, DOJ, to Files, supra note 198.
331. Memorandum from David J. Bardin, Deputy Gen. Counsel, Fed. Power Comm'n, to Lee C. White, Chairman, Fed. Power Comm'n (Apr. 17, 1969), in Responsibilities of the Federal Power Commission in the Area of Civil Rights: Hearings Before the Subcomm. on Civil Rights Oversight of the H. Comm. on the Judiciary, 92d Cong. 90 (1972) [hereinafter Responsibilities];
332. Federal Power Commission Oversight: Hearing Before the Subcomm. on Energy, Natural Resources, and the Environment of the S. Comm. on Commerce, 91st Cong. 35-36 (1970) (statement of John Nassikas, Chairman, Fed. Power Comm'n).
333. Memorandum from David J. Bardin to Lee C. White, in Responsibilities, supra note 200, at 90.
334. See, e.g., 16 U. S. C. §§ 797, 824, 824d (2006).
335. Memorandum from Robert A. Jablon to David J. Bardin, Deputy Gen. Counsel, Fed. Power Comm'n (Apr. 17, 1969), in Responsibilities, supra note 200, at 99-109.
336. Id. at 104 n. 10, 109.
337. Id. at 106, 109.
338. Id. at 109.
339. Pac. Gas & Elec. Co., 42 F. P. C. 243, 243-44 (1969).
340. Id. at 243.
341. The Nixon Look: Regulatory Agencies Take Pro-Business Cast with New Nominees, Wall St. J., Sept. 25, 1969, at 1.
342. Pac. Gas & Elec. Co., 42 F. P. C. 645 (1969).
343. Letter from Gordon Gooch, Gen. Counsel, Fed. Power Comm'n, to David L. Norman, AAG, CRD, Dep't of Justice (Sept. 29, 1971), in Responsibilities, supra note 200, at 67.
344. Pac. Gas & Elec. Co., 44 F. P. C. 1365, 1366 (1970).
345. Fed. Power Commission Oversight: Hearing Before the Subcomm. on Energy, Natural Resources, and the Environment of the S. Comm. on Commerce, 91st Cong. 35-36 (1970) (statement of John Nassikas, Chairman, Fed. Power Comm'n).
346. U. S. Comm'n on Civil Rights, Fed. Civil Rights Enforcement Effort: A Report of the Commission 813-45 (1970) [hereinafter Civil Rights Enforcement].
347. Id.
348. Id. at 837.
349. Id.
350. Id.at 838 & n. 41.
351. Id. at 838-39 & n. 41, 840.
352. Jon Nordheimer, A Highly Critical View of Progress on Rights, N. Y. Times, Oct. 18, 1970, at E3.
353. Civil Rights Enforcement, supra note 214, at 844.
354. Id. at 1095-115.
355. Id. at 1101 (emphasis added). For a discussion of Burton and Pollak, see supra notes 43-50 and accompanying text.
356. Civil Rights Enforcement, supra note 214, at 1102-04.
357. Id. at 1106.
358. Id. at 1101.
359. Id. at 1107.
360. Id. at 1107.
361. In support, the Civil Rights Commission quoted broad language in Burton that the state, "[b]y its inaction[,]... made itself a party" to its tenant's discrimination. Id. (quoting Burton v. Wilmington Parking Auth., 365 U. S. 715, 725 (1961)). The Commission overlooked subsequent decisions in which the Court stated that something more affirmative was required in order to bring discrimination within equal protection's ambit. See supra notes 67-68 and accompanying text.
362. Civil Rights Enforcement, supra note 214, at 1095-96, 1101-03.
363. Pac. Gas & Elec, 44 F. P. C. 1365 (1970).
364. Id. at 1368.
365. Id.
366. Id. at 1366-67. If the petitioners had argued that the FPC had a constitutional obligation to regulate licensees' employment practices, the FPC did not acknowledge it.
367. Id.
368. Id. at 1368. Unfortunately, the National Archives do not have the records for this license petition, and I have been unable to find the petitioners' arguments in other archives.
369. U. S. Comm. on Civil Rights, The Federal Civil Rights Enforcement Effort: Seven Months Later (May 1971).
370. U. S. Comm. on Civil Rights, The Federal Civil Rights Enforcement Effort: One Year Later (Nov. 1971).
371. Paul Delaney, Rights Panel Again Assails Efforts by U. S. Agencies, N. Y. Times, Nov. 17, 1971, at 1.
372. For a fuller history of these events, see Graham, supra note 11, at ch. 12.
373. Cong. Rec. 3959 (1972).
374. Id. at 3961. The Interstate Commerce Commission ("ICC") was considering an equal employment rulemaking petition of its own, as well as its fellow administrators' view that the Constitution obligated it to ensure equal employment.
375. See, e.g., William H. Brown III et al., EEOC, to ICC 9 (Dec. 1, 1971) (In the Matter of Ex Parte No. 278 Equal Opportunity in Surface Transportation, NAACP Papers, Part V, Box 303, Folder 8).
376. Cong. Rec. 3960 (1972).
377. Id. at 3961.
378. Id. at 3965.
379. Advisory Opinion from David L. Norman, AAG, CRD, Dept. of Justice, to Gordon Gooch, Gen. Counsel, Fed. Power Comm'n (Sept. 17, 1971), in Responsibilities, supra note 200, at 66 (citing Pollak).
380. Id. (citing Burton). Norman cautioned that this duty might not extend to electric companies that lacked a federal hydroelectric license since they were regulated primarily by state and local governments. According to Norman, they might well be state actors under the Fourteenth Amendment, which governed state, as opposed to federal, government actors, but "the existence of a duty on the part of the federal government to insure the companies' compliance with its constitutional obligations [was] unclear." Id.
381. Letter from Gordon Gooch, Gen. Counsel, Fed. Power Comm'n, to David L. Norman, AAG, CRD (Sept. 29, 1971), in Responsibilities, supra note 200, at 68.
382. Memorandum from Gordon Gooch, Gen. Counsel, to Fed. Power Comm'n (Feb. 17, 1972), in Responsibilities, supra note 200, at 61-65.
383. Id. at 62.
384. Id. at 64-65.
385. See supra note 67 and accompanying text.
386. Memorandum from Gordon Gooch, Gen. Counsel, to Fed. Power Comm'n, supra note 248, at 64.
387. Id. at 63.
388. Responsibilities, supra note 200, at 2, 12-33. On Edwards's strong support of civil rights, see, for example, Letter from Joseph L. Rauh to James E. Stewart, NAACP (Apr. 24, 1974) (Joseph L. Rauh Papers, LCMD, Part I, Box 38, "NAACP" Folder).
389. Responsibilities, supra note 200, at 2, 12-33.
390. Id. at 7-8.
391. See supra notes 40, 65-69, 159-62 and accompanying text.
392. Katzenbach v. Morgan, 384 U. S. 641, 648-51 (1966).
393. U. S. 163, 177 (1972).
394. Id. at 173.
395. Id. at 173-74 (quoting Reitman v. Mulkey, 387 U. S. 369, 380 (1967)).
396. Id. at 175.
397. Id. at 177.
398. See Herbert Hovenkamp, Technology, Politics, and Regulated Monopoly: An American Historical Perspective, 62 Tex. L. Rev. 1263, 1280 (1984) (describing electric utilities as regulated monopolies).
399. Bus. Executives' Move for Vietnam Peace v. FCC, 450 F.2d 642, 655 (D. C. Cir. 1971) (holding that the First Amendment prohibited regulated broadcasters from rejecting all controversial advertising).
400. Id. at 652 n. 20 ("The mere existence of a licensing or delegation relationship is not, of course, enough by itself to establish state action").
401. Id. at 651-52.
402. Id. at 652 n. 23.
403. U. S. 94 (1973).
404. Id. at 119.
405. Id. at 119-20.
406. Id. at 150.
407. Id. at 120-21.
408. U. S. 345, 351 (1974).
409. Id.
410. Memorandum and Petition from William L. Taylor & Raymond B. Marcin, Ctr. for Nat'l Policy Review ("CNPR"), Attorneys for NAACP, et al., to FPC (June 22, 1972) (Docket No. RM-447, FPC, Docket Files, RG 138, National Archives, FRC Box 55, Folder 1) [hereinafter CNPR Petition]. The Center's clients were the NAACP, the National Urban League, MALDEF, NOW, the Women's Equity Action League, the League of United Latin American Citizens in California, the Association for the Betterment of Black Edison Employees, United Church, the Center for Community Change, the American G. I. Forum, the Mexican American Political Association, and United Native Americans, Inc.
411. Id. at 35.
412. See quote in text accompanying supra note 225.
413. Irving Spiegel, Two Jewish Leaders Score Minority Job Quotas: H. E. W. Is Urged to Recast Its Guidelines and Repudiate "Preferential Treatment", N. Y. Times, June 30, 1972, at 11.
414. Glenn Fowler, Nixon and McGovern Oppose Quotas to End Racial Disparity, N. Y. Times, Aug. 19, 1972, at 12;
415. Samuel Rabinove, Letter to the Editor, Crow Jimism, N. Y. Times, Mar. 27, 1972, at 34;
416. Spiegel, supra note 278, at 11.
417. Fowler, supra note 279, at 12.
418. Jon Katz, Nixon Bans Minorities' Job Quotas, Wash. Post, Aug. 25, 1972, at A1. Claims that affirmative action was reverse discrimination were not new, but the endorsement of these liberal groups gave the claims prominence and credibility. For more on the history of anti-affirmative action claims
419. see MacLean, supra note 180, at 185-224;
420. Siegel, supra note 1, at 1473.
421. CNPR Petition, supra note 276, at 40-47.
422. Edward Cowan, A Fair-Jobs Role Barred by F. P. C.: Agency Says It Cannot Deal with Hiring by Utilities, N. Y. Times, July 12, 1972, at 11.
423. Id.
424. NAACP et al., 48 F. P. C. 40, 42 (1972).
425. Id. at 41 (emphasis added).
426. Letter from William H. Brown III, Chairman, EEOC, to John N. Nassikas, Chairman, FPC (July 13, 1972) (FPC Docket No. RM-447, FRC Box 55, Folder 1).
427. Petition from William L. Taylor & Robert B. Marcin to FPC (Aug. 8, 1972) (FPC Docket No. RM-447, FRC Box 55, Folder 1).
428. NAACP et al., 48 F. P. C. 371 (1972).
429. Agency nonacquiescence to lower federal courts' decisions is hotly debated. Compare Samuel Eistreicher & Richard L. Revesz, Nonacquiescence by Federal Administrative Agencies, 98 Yale L. J. 679 (1989)
430. Mashaw, supra note 14, at 513-15
431. and Joshua I. Schwartz, Nonacquiescence, Crowell v. Benson, and Administrative Adjudication, 77 Geo. L. J. 1815 (1989) (recognizing broad, moderate, and very limited instances, respectively, when agency nonacquiescence is justified)
432. with Dan T. Coenen, The Constitutional Case Against Intracircuit Nonacquiescence, 75 Minn. L. Rev. 1339 (1991)
433. and Matthew Diller & Nancy Morawetz, Intracircuit Nonacquiescence and the Breakdown of the Rule of Law: A Response to Eistreicher and Revesz, 99 Yale L. J. 801 (1990) (arguing against agency nonacquiesence).
434. Petition for Review from Howard A. Glickstein & William L. Taylor, Attorneys, CNPR, and Robert Gnaizda & Albert Moreno, Pub. Advocates, Inc., MALDEF, to FPC (Oct. 12, 1972) (FPC Docket No. RM-447, FRC Box 55, Folder 1).
435. Cf. Jerry L. Mashaw, Due Process in the Administrative State 35-36 (1985)
436. (noting that welfare rights activists' turn to the courts may have been ill-advised since administrators were on the verge of creating far more robust procedural rights than those the Supreme Court ultimately ordered in Goldberg v. Kelly, 397 U. S. 254 (1970)).
437. See, e.g., Corporate Power in America 133, 231 (Ralph Nader & Mark J. Green eds., 1973) ;
438. The Monopoly Makers: Ralph Nader's Study Group Report on Regulation and Competition (Mark J. Green ed., 1973) (asserting that regulatory agencies exacerbated rather than ameliorated the ill effects of concentrated corporate power). Nader popularized, but did not invent, the New Left critique of regulation. For its academic counterpart
439. see Theodore J. Lowi, The End of Liberalism: Ideology, Policy, and the Crisis of Public Authority (1969).
440. DeFunis v. Odegaard, 414 U. S. 1038 (1973) (agreeing to review a decision upholding a law school affirmative action admissions program).
441. See Siegel, supra note 1, at 1526-27;
442. see also Dennis Deslippe, Protesting Affirmative Action: The Struggle Over Equality in Post-Civil Rights America, ch. 4 (manuscript on file with the Virginia Law Review).
443. Keyes v. Sch. Dist. No. 1, 413 U. S. 189, 208, 211 (1973)
444. (stating that intent distinguishes de jure segregation from de facto segregation and suggesting that only the former "warrants] judicial intervention"). Arguably, Keyes left open the possibility that intent might be rebuttably presumed based on disparity. See Note, Reading the Mind of the School Board: Segregative Intent and the De Jure/De Facto Distinction, 86 Yale L. J. 317, 332-36 (1976).
445. Siegel, supra note 1, at 1511-12, notes that federalism concerns explain why courts in this period limited equal protection remedies to intentional government acts of racial classification. Courts suggested that state legislatures could voluntarily adopt race-conscious desegregation policies, even if courts should not impose them absent a finding of intentional discrimination.
446. See, e.g., Swann v. Charlotte-Mecklenburg Bd. of Educ, 402 U. S. 1, 16 (1971) (noting that school officials have broad discretion to implement racial balancing policies, while courts cannot do so absent a finding of state-imposed segregation in violation of the Constitution) ;
447. Associated Gen. Contractors of Mass., Inc. v. Altshuler, 490 F.2d 9, 17 (1st Or. 1973) (stating that "the discretionary power of public authorities to remedy past discrimination is even broader than that of the judicial branch") ;
448. see also Siegel, supra note 1, at 1525 n. 190.
449. But cf. Gillian Metzger, Administrative Law as the New Federalism, 57 Duke L. J. 2023, 2109 (2008) (encouraging present-day agencies to consider federalism principles when formulating policy).
450. Paul Delaney, Action Reviewed on Bias Charges: New Rights Chief Doubts Use of Sweeping Actions, N. Y. Times, Feb. 11, 1974, at 36.