Inside the “Administrative State”: The Enigmatic Office for Civil Rights

Abstract Few federal agencies have generated more controversy than the small Office for Civil Rights (OCR) in the Department of Education. From desegregation and bilingual education to intercollegiate athletics, sexual harassment, and transgender rights, it has turned short civil rights statutes into lengthy administrative rules. It thus offers a useful window into what has become known as “the administrative state.” But this window is far from transparent: OCR rarely uses standard Administrative Procedure Act rulemaking, opting instead for unilateral “Dear Colleague Letters” written with little external participation; the bulk of its resources are devoted to investigation of individual complaints, with little public explanation of the outcomes. Innovation and expansion of the agency’s mission has not come from the permanent bureaucracy, but from the courts and from agency leaders appointed by the president. From the 1960s through the 1990s, the result was slow but steady accretion of power and responsibility. More recently political polarization and shifting Supreme Court jurisprudence has led to more rapid alteration of agency policy and enforcement practices.