Yet understanding the current state of disparate limboĪlso holds vitally important lessons about the broader sweep of modernĪdministrative law and its relationship to the American civil rights struggle. Round of soul-searching on the government’s role in racial stratification, andĪs agencies at all levels take up new digital-governance tools that raise Plaintiffs, unable to make out the stringent intent showings required under increasingly inhospitable civil rights laws, are also barred from mounting APA claims against agency discrimination for violations of administrative law’s baseline guarantee of nonarbitrariness.ĭisparate limbo is urgently needed, particularly as the nation enters a new Sandoval rendered Title VI demonstrably inadequate.Īntidiscrimination’s erasure from the APA, built on a mistaken relic of statutory interpretation, has consigned civil rights plaintiffs to a paralyzing limbo. Worse, courts have reflexively applied § 704 to oust civil rights claims, even after the Supreme Court’s decision in Alexander v. Circuit’s § 704 dodge, using it to channel antidiscrimination claims away from the APA. Circuit, in an opinion by then-Judge Ginsburg, held that § 704 of the APA barred civil rights plaintiffs from bringing an APA challenge because Title VI provided an alternative “adequate remedy.” 1 Subsequent courts seized on the D.C. This story begins with the Civil Rights Act of 1964, when Congress punted on questions about disparate impact and the relationship between Title VI and the Administrative Procedure Act (APA). Our Article uncovers how modern administrative law erased antidiscrimination principles.
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