Marginalized Groups and the Multiple Languages of Regulatory Decision-Making

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Agencies must incorporate insights from marginalized communities to empower them.

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When it comes to historically marginalized groups, an “out of sight and out of mind” approach has too often infected agency policymaking. Agencies have responded with outreach to marginalized communities, but regulatory policymaking is hardly inclusive.

Last January, President Biden required the government to increase engagement “with community-based organizations and civil rights organizations,” and the Administrative Conference of the United States responded with a multiday forum on underserved communities and the regulatory process.

Addressing the lack of participation by marginalized communities in regulatory decision-making is crucial, but there is another fundamental issue. The input of marginalized communities will not matter if agencies ignore or devalue it because these insights are not expressed using the standard narratives of policymaking.

Bruce Williams and Albert R. Matheny identify three “languages” used in public policy debates: managerial, pluralist, and communitarian. The managerial perspective looks to an agency’s technocratic expertise to develop effective policies, while the pluralist perspective seeks to accommodate a balance of competing interests when determining policies. A communitarian perspective looks to the participation of citizens to express the values associated with the social, cultural, and historical contexts of a community’s lived experiences. For various reasons, the managerial discourse dominates regulatory decision-making, and the expectation is that competing interests will participate using a managerial discourse.

The reliance on managerial discourse has resulted in agencies ignoring the concerns of marginalized groups. One can imagine the interaction between marginalized groups and government officials as two gears meshing. Because marginalized groups do not bring the “right” form of discourse when advocating their concerns to government officials, the gears’ teeth slip, and, in the process, all the force of the public’s collective power is wasted and lost.

As Jill Lindsey Harrison has documented, for example, the Office of Environmental Equity in the U.S. Environmental Protection Agency (EPA) usually lost internal policy debates because other staff members perceived environmental justice as outside the EPA’s responsibilities. As one staff member noted to Harrison, “we do ecology, not sociology.” This disregard for issues affecting marginalized communities extends beyond EPA.

One proposed answer is to adopt technocratic methodologies to consider the interests of marginalized communities. Gwen Ottinger and Benjamin Cohen, for example, call for a reconstruction of risk analysis for this purpose. Similarly, Matthew Adler has surveyed proposals to use distributive multipliers, which would make cost-benefit analysis sensitive to distributive impacts.

These efforts are attempts to translate communitarianism—the third language identified by Williams and Matheny—into a managerial narrative. The problem is that communitarian concerns and values do not sit easily with the rationalistic and economic expectations of the managerial language used by agencies. When individuals participate in a regulatory process, for example, they are more likely to tell stories based on their individual experiences rather than use the reasoned discourse found in the managerial perspective.

As Francesca Polletta and John Lee note, the managerial language has become a form of privilege that disadvantages marginalized communities. Efforts to address this privilege by translating the communitarian input into a managerial narrative are not responsive. For one thing, the people translating are largely white. More significantly, this effort avoids a discourse with marginalized communities.

The dominance of the managerial language reflects an ongoing effort to “rationalize” regulation. But, as Liz Fisher and I explain in a recent book, this effort uses a thin version of expertise that does not capture the power of accommodating multiple viewpoints and perspectives, whether they are qualitative, quantitative, or both.

In an agency, persons trained in different disciplines interact with each other to share perspectives even though they do not share the same discipline. These interactions are possible because expertise is a form of practical judgment—a “craft” rather than a science—that relies on interactive debate and reason-giving joining different disciplines and perspectives.

Once the true nature of expertise is acknowledged, the door opens to accommodate both managerial and communitarian language. Williams and Matheny propose a how to accommodate the managerial, pluralist, and communitarian languages for this purpose. Polletta and Lee note that there are evaluative structures that can incorporate storytelling into public policy assessments.

Although reaching out to marginalized groups is the first step, integrating their insights—and the ways in which they express them—is a necessary step to empowering these communities. The public interest is discovered through inclusive discursive practices that incorporate the multiple languages of public policy debates.

Sidney A. Shapiro

Sidney A. Shapiro is the Frank U. Fletcher Chair in Administrative Law at the Wake Forest University School of Law.

This essay is part of a nine-part series entitled Creating an Administrative System for All.