Administrative Rights in Institutional Perspective

Abstract

This response essay, written for the 2017 Duke Law Journal Administrative Law Symposium, comments on Karen M. Tani, An Administrative Right To Be Free From Sexual Violence? Title IX Enforcement in Historical and Institutional Perspective, 66 Duke L.J. 1847 (2017).

Professor Tani's essay places in broader context the much praised and much maligned campaign against sexual assault in schools and universities that the Obama administration's Education Department undertook over the course of its final five years. The broader context, as she sees it, has two components: first, a historical one, about the rise in Congress and fall in the Supreme Court of the Violence Against Women Act, against the backdrop of insufficient state and local legal regimes punishing sexual violence; and second, an institutional one, about the potential limitations associated with federal administrative agencies articulating and vindicating novel rights. Both historical and institutional contexts are important, especially as the Trump administration prepares to undo the Obama administration's campaign, for each offers a different way to identify the challenges and opportunities that lie ahead. My short response focuses largely on Tani's institutional concerns and circles back to her historical lens at the end.

Tani identifies three potential limitations associated with administratively created rights in general, not solely in the context of the recent administrative expansion of Title IX: they may be weaker because they are "filtered, or mediated," through regulated entities; because they are "more vulnerable to change than other forms of lawmaking"; and because they "tend to implicate only pockets of the population that might wish to claim the right." I agree that these limitations are present in administrative rights, but I am less certain than Tani is that these limitations "flow from the limitations of the agencies themselves." Instead, I think that these limitations are associated with rights shaped by Congress and courts as well, as the rest of this response elaborates.

My expansion of Tani's tripartite description of limited rights leads me to the same conclusion as Tani, though: those who wish to expand the nature of American citizenship to see all people as rights-bearing individuals will continue to pursue those claims "in whatever forum is available." I simply want to suggest that the agency as a forum for rights claims is no worse, but also no better, than other potential fora. Taking the long view, as Tani invites us to do, this equivalence matters.

Keywords: Administrative Law, Title IX, Education Law, Civil Rights