Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].

Advocates of limited government are sometimes accused of being blind to issues of race and sex. Here’s at least one way in which that might be true:

Over the last few decades our legal system has been increasingly shaped by identity politics—often with little opposition by limited-government advocates. Legislation frequently contains numerous benefits aimed at one or more identity groups. But perhaps even more striking, race and sex increasingly permeate the activities of regulatory agencies.

For example, in 1964, Congress intentionally denied the Equal Employment Opportunity Commission (EEOC) substantive rulemaking power under Title VII. It wanted an agency with very limited powers. But the Supreme Court’s decision in Griggs v. Duke Power Co. (1971) to interpret Title VII to prohibit disparate impact that is unjustified by business necessity (especially when that decision is combined with the advent of general damages in 1991) turned the EEOC into an agency with immense powers over employment practices in general, not just employment discrimination.

Since everything has a disparate impact on some protected group—whether it’s men, African Americans, Unitarians, Buddhists, Hmong, Latvians, Samoans or whoever—disparate impact liability gives the EEOC the discretion to issue guidances essentially prohibiting whatever employment practice the Commissioners choose to prohibit. Since guidances (unlike actual notice-and-comment regulations) are difficult to challenge in court, the EEOC’s discretion goes largely unchecked. Disparate impact liability has since spread to areas like housing and credit, thus putting lenders and landlords in the same boat with employers, where every criterion they use for hiring, promoting, lending, or leasing is presumptively illegal. 

Elected officials who otherwise support the principles of limited government are often reluctant to push back when expansions of the administrative state are couched in terms of race or sex. Are they being prudent? Or something else?

On November 17, The Federalist Society will host a panel by the Civil Rights Practice Group as a part of the 2017 National Lawyers Convention titled Race and Sex: Prime Movers in the Expansion of the Administrative State? The panel will discuss the motives and consequences of identity-based administrative policy.

The discussion will feature yours truly as well as the following distinguished professors and attorneys:

  • Prof. Gail Heriot, Professor of Law, University of San Diego School of Law
  • Mr. Peter Kirsanow, Partner, Benesch Attorneys at Law
  • Prof. R. Shep Melnick, O'Neill Professor, Boston College, Department of Political Science
  • Prof. Ted Shaw, Julius L. Chambers Distinguished Professor of Law & Director of the Center for Civil Rights, University of North Carolina School of Law
  • Moderator: Hon. Rachel L. Brand, Associate Attorney General, United States Department of Justice

Join us on Friday, November 17 from 12:00 – 2:00 PM in the East Room of The Mayflower Hotel to engage in this topic as the National Lawyers Convention pursues its theme of Administrative Agencies and the Regulatory State.

Click here to consult the convention schedule. To watch the convention live stream, visit this page beginning November 16.