Multiracial Democracy and Civil Rights Enforcement

In a conversation with The Regulatory Review, Olatunde Johnson discusses the role that administrative institutions, federal programs, and civil rights enforcement play in advancing what she describes as “multiracial democracy,” a democratic system grounded in inclusion and equal participation across racial and social groups.

Civil rights laws are often enforced by regulatory agencies that translate broad statutory mandates into concrete policies affecting housing, education, transportation, and other core areas of social life. Federal programs and agency decisions shape how public resources are distributed and how legal protections are implemented. As a result, administrative governance plays a central role in determining whether civil rights laws meaningfully address longstanding patterns of exclusion and inequality.

Johnson explains that the design and enforcement of federal programs can either reinforce structural inequalities or help dismantle them. She emphasizes that sustaining an inclusive democracy requires not only access to voting and political participation but also equitable access to public goods and meaningful participation in administrative governance. Johnson also reflects on how changing legal and political dynamics are shaping the institutions responsible for enforcing civil rights laws and considers how scholars and advocates might rethink enforcement strategies and institutional design in the years ahead.

Olatunde Johnson is the Ruth Bader Ginsburg ’59 Professor of Law at Columbia Law School. Her scholarship focuses on anti-discrimination and equality law, administrative law, and civil procedure. Before joining Columbia’s faculty, Johnson worked at the NAACP Legal Defense Fund, served as constitutional and civil rights counsel to Senator Edward M. Kennedy on the U.S. Senate Judiciary Committee, and later worked as a senior consultant on racial justice in the ACLU’s National Legal Department.

The Regulatory Review is pleased to share the following interview with Olatunde Johnson.

The Regulatory Review: How do you define “multiracial democracy”? What regulatory or legal processes support multiracial democracy? How is this concept useful for thinking about civil rights today?

OJ: We’ve long been a multiracial country. The emphasis in the term is on “democracy,” without embedded hierarchy. This requires meaningful participation, inclusion, and thriving in our democracy regardless of one’s social identity or background. Achieving this type of democracy requires accessible voting and fair elections to be sure, but it also requires other forms of participation in democratic structures—including administrative and legislative governance. Given our nation’s history of exclusion and discrimination, achieving an inclusive multiracial democracy also calls for collective work to address and repair deep and enduring forms of subordination and fairness in the distribution of core social goods.

TRR: How do structural features, such as agency design, enforcement discretion, and resource allocation, influence the real-world enforcement of anti-discrimination laws?

OJ: My interest has been in how the design and function of federal programs can promote exclusion or advance inclusion, particularly with regard to race— for instance, how federal housing and transit programs have contributed to racial segregation and racial wealth disparities that persist until today. I am also interested in the remedies to that discrimination: the range of federal laws and statutes that seek to correct the racial harm caused by federal programs and federal spending. For instance, the Fair Housing Act requires that federal agencies and grantees “affirmatively further fair housing” (AFFH), which provides a potential counter to the federal role in creating segregation. Title VI of the Civil Rights Act of 1964 attaches affirmative duties and antidiscrimination requirements to federal funds. I have also studied executive branch efforts to use formal and informal agency power and regulatory review to repair past harm caused by federal programs—for instance, with regard to highway construction that tore through Black communities.

More recently, my focus has been on the current Administration’s dismantling of the infrastructure of civil rights, while preserving those aspects of federal civil rights regulation that serve its ideological and political priorities. An example is using the federal cut off mechanism of Title VI to attempt to control teaching, curriculum, hiring, and governance at universities.

TRR: Your scholarship examines fair housing and how public institutions respond to structural inequality. How does anti-discrimination enforcement in housing shed light on both the possibilities and the limits of regulatory approaches to advancing civil rights?

OJ: I believe that housing is the linchpin for understanding contemporary racial inequality. Where you live influences the quality of your education, environment, employment, and your wealth. The federal government invested heavily in housing and neighborhoods that produced access to opportunity and wealth for white families, while contributing to the segregation of Black Americans in less resourced neighborhoods. Hopefully, most now know this history, which is documented in books such as Douglas Massey and Nancy Denton’s American Apartheid, Richard Rothstein’s The Color of Law, and Sheryll Cashin’s White Space, Black Hood.

These historic challenges connect to present day administrative statutes and agencies in a number of ways. As I mentioned earlier, AFFH is an incredible provision that requires federal agencies and their grantees to administer their programs “in a manner affirmatively to further the purposes” of fair housing. The words seem technocratic, but Congress included that language with the recognition that federal power should undo the very segregation that federal agencies had caused. Courts soon interpreted AFFH to require that federally funded programs redress segregation and promote integration.

Despite the ambition of the provision, enforcement has been spotty and in recent years deeply contested. In 2015, after lawsuits challenging the federal government’s lack of enforcement of the provision, the federal government launched important rulemaking and enforcement activities.

Much has happened since then, given the dramatically different fair housing visions of the last two Administrations. The current Administration is not only repealing AFFH enforcement and rulemaking but also attempting to dismantle other aspects of the fair housing structure—including the disparate impact standard and support for lawyers who litigate fair housing cases.

TRR: How did your work with the NAACP Legal Defense Fund (LDF) shape your understanding of what litigation can and cannot accomplish?

OJ: LDF profoundly shaped my understanding of structural racial inequality and the role of litigation and policy advocacy in addressing it. While I was an intern at LDF, I worked on a landmark transit equity case that used Title VI to challenge discrimination and the lack of investment in transit systems that served low-income communities of color in Los Angeles. As an attorney, I worked on the Alexander v. Sandoval case in which the U.S. Supreme Court ultimately held that the disparate impact provisions of Title VI were not privately enforceable. When I later worked on the Senate Judiciary Committee, I helped draft a legislative “fix” to the Sandoval decision, which, unfortunately, still has not been enacted. Later, as a law professor I documented how administrations across political parties responded to the Sandoval decision with efforts to enforce the statute and regulations through administrative processes—processes that the current Administration is seeking to undo. More recently, I have written about how the current Administration is using Title VI to curtail speech, research, curriculum, and governance at universities.

In sum, at LDF I was introduced to how racialized decisions shaped geographies of opportunity that endure until today and to the statutes and regulations that might provide a path forward. I saw both the possibilities and limits of litigation. For me, the Los Angeles case still stands as a powerful positive example of how to structure contemporary social change litigation. We were the lawyers, but our clients were community groups who engaged in the type of policy advocacy and organizing needed to produce the lasting change that litigation alone cannot. It shaped how I think about impact litigation today—the need to combine litigation with effective, deep organizing. More recently, I have started to puzzle through how the narratives and coalition building for litigation might help reduce polarization.

TRR: How might the Supreme Court’s recent overturning of the Chevron doctrine, which directed courts to give deference to agencies’ interpretations of ambiguous statutes, affect the capacity of government institutions to protect marginalized communities through regulatory action?

OJ: In theory, the reversal of the Chevron v. National Resources Defense Council decision can serve to constrain current agency actions that seek to reinterpret civil rights laws and revise or withdraw longstanding rules. Yet Loper Bright Enterprises v. Raimondo and West Virginia v. EPA—two recent Supreme Court cases curbing judicial deference to agencies and constraining regulatory authority—are more likely to have a deregulatory impact on civil rights enforcement.

An example is Louisiana’s successful challenge to the Title VI disparate impact regulations. Black residents of Cancer Alley—a heavily industrialized corridor between Baton Rouge and New Orleans that contains more than 200 petrochemical plants and refineries—filed a Title VI administrative complaint with the U.S. Environmental Protection Agency (EPA) against Louisiana agencies for permitting petrochemical processing facilities that they claimed were harming their health and air quality. Louisiana then took EPA to federal court claiming that Title VI’s disparate impact provisions exceeded the agency’s authority under West Virginia v. EPA. The district court ultimately agreed with the state, holding the regulations invalid. The current Administration has now moved to rescind EPA’s Title VI disparate impact regulations. The validity of the disparate impact regulations implicates questions of administrative deference. The argument advanced by the current Administration is that the agency has no authority to interpret the statute’s prohibitions on “discrimination” to include disparate impact discrimination.

The administrative law issues at stake in the current dismantling of agency civil rights law go far beyond Chevron and implicate separation of powers, due process, and equal protection. The Administration has used civil rights law to threaten universities, fired commissioners of the EEOC, argue that diversity and inclusion programs violate Title VII and the U.S. Constitution’s Equal Protection Clause, and has interpreted Title IX to allow discrimination against trans and nonbinary individuals. All of these changes implicate many issues at the intersection of antidiscrimination law, administrative law, and constitutional law.

TRR: Where do you see the most promising opportunities for reform of civil rights enforcement in the years ahead?

OJ: I have to mention first a challenge from which I think some possibilities spring. A major challenge is the use of equal protection law to dismantle the statutes of the Second Reconstruction—such as the Civil Rights Act of 1964, the Voting Rights Act, and the Fair Housing Act. The Students for Fair Admissions v. Harvard decision—which held that race-conscious affirmative action programs at Harvard and UNC-Chapel Hill violated Title VI and the equal protection clause—has opened the door to arguments that anti-discrimination laws that require racial analysis or that promote racial inclusion violate the Equal Protection Clause. These arguments are being used to challenge the constitutionality of Section 2 of the Voting Rights Act, and disparate impact standards. I have several writing projects, including a book project on how advocates might reclaim the equal citizenship and anti-caste conception of equal protection—in both doctrine and for policymaking—in an age of “colorblindness.”

Returning to the challenges facing administrative agencies, I also believe it is important for those who care about advancing equality and inclusion to give thought to the future design of administrative agencies and the role of federal enforcement. The actions of the current Administration have already dramatically reshaped civil rights agencies. Even before the prior Administration, progressives had longstanding critiques of these agencies. So, it is probably not possible or wise to rebuild these agencies with the same structure or function. I have more questions than answers about how these agencies should be designed going forward, but I am excited about directing my intellectual energy to that project.