UC Berkeley

For years after the Supreme Court ruled segregation unconstitutional in Brown v. Board of Education, federal agencies continued to approve and fund the construction and maintenance of segregated schools and housing. They did not halt this practice—or squarely acknowledge the constitutional problems it raised—until Congress specifically prohibited it in the Civil Rights Act of 1964.

In this dissertation, I ask why some federal officials resisted Brown. Using a comparative case study approach, I examine several agencies’ interpretation of equal protection principles in the decades immediately before and after Brown, from the New Deal through 1964. The agencies that I study are the Office of Education (and its parent organization, the Department of Health, Education, and Welfare); the Public Works Administration’s Housing Division; the Public Housing Administration; the Federal Housing Administration; and the latter two agencies’ parent organization, the Housing and Home Finance Agency. In focusing on federal education, public works, and housing programs, I probe the areas in which federal administrators faced the most acute constitutional controversies of the era, as civil rights leaders persistently petitioned them to stop approving and funding racial segregation and discrimination in local public schools, jobs, and housing.

Against the backdrop of a growing literature on administrative constitutionalism that often emphasizes agencies’ role in expanding constitutional rights, this dissertation points to another perspective—highlighting the ways in which agencies can resist the judicial Constitution, prioritize particular constitutional goals at the cost of others, and serve as forces of entrenchment against reform.

I argue that the federal education and housing agencies’ institutional design predisposed them to resist Brown’s revolution in constitutional meaning. Their cases illuminate the broader, recurring possibility that Congress and the president will design agencies in ways that empower politically powerful groups and stave off legal change, to the detriment of constitutional values. The education and housing agencies’ mandates and structures, forged during constitutional conflicts over the reach of the federal welfare state and federal authority to address racial discrimination, led them to defer to state and local authority over schools and housing. Congress deliberately attempted to insulate them from direct White House control, while the controversial nature of their programs (which limited their agencies’ funding and mandates) made administrators extremely sensitive to the preferences of Congress, particular those of the Southern Democrats that served on their agencies’ oversight and appropriations committees. The agencies’ core clienteles, the state and local officials whose programs they funded, forced their attention to federalism values, and diminished the care they could give to racial equality principles. Simultaneously, and in sharp contrast to their agencies’ political vulnerability, these federal officials were insulated from constitutional challenges in the courts by procedural legal doctrines of standing and sovereign immunity.

As a result, federal education and housing officials operated with substantial formal legal autonomy, but high levels of political constraint, as they shaped their programs’ policies on racial segregation and discrimination. The choices that they made in that context tended to preserve progressive social programs while sacrificing the racial justice goals of the Reconstruction Amendments. Thus, these federal administrators’ constitutional decisions helped create the landscape of enduring federal support for education and housing, alongside racially segregated schools and communities, that still exists today.