How Agencies Can Better Regulate for Racial Justice


The federal government should promote racial equity assessments, equity planning and audits.

On his first day in office, President Joseph R. Biden signed an executive order aimed at advancing racial equity across the federal government by taking a “systematic approach to integrating equity into decision-making.” “, by addressing inequalities and advancing equality of opportunity in agency and program policies.

This command is an important step. President Biden’s executive order promises a new proactive commitment by the administrative state to promote racial equity and other dimensions of inclusion in agency programs. But federal administrative agencies have played a key role in structuring racial segregation and maintaining racial inequalities in housing, health care, access to public transportation and wealth. President Biden’s executive order does not spell out the specifics, however, leaving it to agencies and the Office of Management and Budget to shape the aspirations of the executive order.

Commentators offered a range of promising ideas, including revamping or abandoning cost-benefit analysis to advance considerations of racial justice and equity, scoring policies and regulations based on their impact on racial equity and disaggregating agency data by race, ethnicity and gender, among others. characteristics, to help agencies better understand the impact of programs and regulations on particular communities.

Here are three additional ideas to consider.

First, agencies should formalize, strengthen, and require racial equity assessments for government entities that receive federal grants.

The current regulatory approach to advancing transit justice provides a model. Over the past decade, the US Department of Transportation has asked states and localities operating major transit programs to assess the racial impacts of their transportation changes. The Department of Transportation also requires the adoption of non-discriminatory alternatives and the inclusion of communities of color in its transportation decisions.

The Federal Highway Administration has similar rules. These measures, which implement Title VI of the Civil Rights Act and other federal laws, stem from a long-standing activism to correct the Department of Transportation’s exclusive funding of public transit programs and highway development. Federal funding excluded black residents from resources and jobs that could improve opportunities and destroyed black neighborhoods to create the interstate highway system. It also concentrated the effects of pollution and other environmental damage in black neighborhoods and shaped patterns of segregation.

Activist groups challenged transit decisions for inadequate fairness ratings, prompting federal action to stop the changes. The equity assessment approach emphasizes that transit agencies must now collect and affirmatively assess equity impacts before implementing agency action. At the same time, it requires the bottom-up participation of community groups, functioning as a site of democratic and restorative engagement by communities that have long been excluded from transit planning. For example, community groups recently used the state’s transit planning process to repair damage caused by an interstate highway to black communities in Syracuse, New York.

But equity ratings are a beginning, not an end. Its ability to repair and prevent racial inequities by entities that receive federal grants depends on the quality of assessment and the strength of government enforcement. Both can be strengthened and refined. Indeed, at the urging of environmental and transit groups, the Department of Transportation has sought feedback to strengthen and clarify its fairness assessment guidelines, potentially providing lessons for other agencies in the coming.

Second, agencies must create a default equity plan that all federal grant recipients can adopt.

Law professor Kristen Underhill and I propose this approach to address inequities in the distribution of COVID-19 vaccines. COVID-19 has devastated communities of color, leading to significantly higher rates of illness and death. But in the early stages of vaccine rollout, white communities demonstrated significantly higher use of COVID-19 vaccines than communities of color. Some reasons for this disparity are unique to vaccines. For example, communities of color may have deep and justified medical mistrust. Moreover, new and emerging medical technologies are generally adopted by the most economically advantaged.

Additionally, low-income communities of color faced structural barriers to getting the vaccine, including lack of a stable internet connection to schedule vaccination appointments and lack of access to transportation. in common necessary to be vaccinated. In this context, the Centers for Disease Control and Prevention (CDC) and the United States Department of Homeland Security should have encouraged specific approaches to national and local vaccine distribution to increase access to vaccines by low-income communities. income and communities of color. For example, federal agencies could have encouraged walk-in vaccinations in hard-hit communities or encouraged states and localities to locate vaccination sites near public transportation or in hard-hit communities. A default equity plan could have embodied these design choices.

A default equity plan is particularly useful given the speed required to deploy a vaccine during a pandemic. But the general approach – an agency using its expertise to encourage specific fair practices – has value even in non-emergency situations. Housing rules, for example, require entities receiving federal funds to promote fair housing. A default equity plan could require grant recipients to adopt specific practices that the U.S. Department of Housing and Urban Development (HUD) has found to advance equitable housing. For example, HUD could require regional housing mobility plans for voucher recipients, inclusive zoning, and anti-discrimination legislation on sources of income.

Of course, agencies could revise their default action plans as they gather more information. Grant recipients could, with specific justifications, decline specific requirements in a default equity plan. And whether an agency can mandate or recommend default equity plans will depend on an agency’s statutory authority.

Third, each agency should conduct a fairness audit to examine the structure and design of its rules and programs.

Seemingly racially neutral design choices in curricula and regulations may have a racial component. For example, when determining vaccine distribution priorities, the CDC omitted certain categories of frontline workers that contained substantial numbers of people of color. Inattention to these design choices is not neutral. It’s a choice.

The US Treasury Department’s recent proposal to use facial recognition software for tax returns – despite the technology’s well-documented failures to recognize black and Asian faces – provides another example of how seemingly neutral policies racially can harm communities of color. The Treasury Department dropped its proposal after receiving public criticism, but key elements of the existing U.S. tax structure further exacerbate racial disadvantage.

Disaster relief programs provide another example of discriminatory design because they favor wealthier homeowners and deepen economic and racial inequalities in relief areas. A recent report suggested changes to the structure of federal disaster relief provided by the Federal Emergency Management Agency. Likewise, all federal agencies should undertake regular audits to uncover and determine how their programs and policies incorporate racially inequitable design choices.

The three suggestions I’ve put forward here – racial equity assessments, default equity plans, and agency equity audits – would, if implemented more widely today, come at a time when the United States Supreme Court threatens to restrict the power of the agencies. But that’s another advantage of this approach: all three are authorized by existing laws, such as Title VI and the Stafford Act.

Embracing these three ideas would bring the government closer to realizing the aspirations of President Biden’s Executive Order, helping to embed racial equity and other forms of equity as a priority in agency practice.

This essay is part of a seven-part series entitled Race and rules.


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