Architectural Exclusion: Discrimination and Segregation Through Physical Design of the Built Environment | Yale Law Journal

Architectural Exclusion: Discrimination and Segregation Through Physical Design of the Built Environment | Yale Law Journal
Volume
124
April 2015
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Article
Architectural Exclusion: Discrimination and Segregation Through Physical Design of the Built Environment
16 April 2015
Sarah Schindler
Infrastructure
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abstract.
The built environment is
characterized by man-made physical features that make it difficult for certain individuals—often
poor people and people of color—to access certain places. Bridges were designed
to be so low that buses could not pass under them in order to prevent people of
color from accessing a public beach. Walls, fences, and highways separate historically
white neighborhoods from historically black ones. Wealthy communities have
declined to be served by public transit so as to make it difficult for
individuals from poorer areas to access their neighborhoods.
Although the law has addressed
the exclusionary impacts of racially restrictive covenants and zoning
ordinances, most legal scholars, courts, and legislatures have given little
attention to the use of these less obvious exclusionary urban design tactics.
Street grid layouts, one-way streets, the absence of sidewalks and crosswalks,
and other design elements can shape the demographics of a city and isolate a
neighborhood from those surrounding it. In this way, the exclusionary built
environment—the architecture of a place—functions as a form of regulation; it
constrains the behavior of those who interact with it, often without their even
realizing it. This Article suggests that there are two primary reasons that we
fail to consider discriminatory exclusion through architecture in the same way
that we consider functionally similar exclusion through law. First, potential
challengers, courts, and lawmakers often fail to recognize architecture as a
form of regulation at all, viewing it instead as functional, innocuous, and
prepolitical. Second, even if decision makers and those who are excluded
recognize architecture’s regulatory power, existing jurisprudence is
insufficient to address its harms.
author.
Associate Professor of Law, University of Maine School
of Law. This Article has benefitted greatly from the feedback received at the
Sabin Colloquium on Innovative Environmental Law Scholarship at Columbia Law
School, the annual meeting of the Association for Law, Property, and Society,
and the junior faculty works in progress workshop at American University’s
Washington College of Law. I am grateful to Dmitry Bam, Justin Steil, Dave
Owen, Florence Wagman Roisman, Robin Malloy, Zach Heiden, Anna Welch, Aaron
Perzanowski, and Jim Kelly for their helpful comments. Special thanks to
Patrick Lyons and Anthony Aloisio for excellent research assistance.
Introduction
Robert Moses was known as the “Master Builder” of New York.
During the time that he was
appointed to a number of important state and local offices,
he shaped much of New York’s infrastructure, including a number of “low-hanging
overpasses” on the Long Island parkways that led to Jones Beach.
According to his biographer, Moses
directed that these overpasses be built intentionally low so that buses could
not pass under them.
This design
decision meant that many people of color and poor people, who most often relied
on public transportation, lacked access to the lauded public park at Jones
Beach.
***
Although the Atlanta, Georgia, metropolitan area is known for
its car-centric, sprawling development patterns, it has a subway system: the
Metropolitan Atlanta Regional Transit Authority (MARTA).
Wealthy, mostly white residents of
the northern Atlanta suburbs have vocally opposed efforts to expand MARTA into
their neighborhoods for the reason that doing so would give people of color
easy access to suburban communities.
The lack of public-transit connections to areas north of the city makes it
difficult for those who rely on transit—primarily the poor and people of
color—to access job opportunities located in those suburbs.
***
At the request of white residents, in 1974 the city of
Memphis closed off a street that connected an all-white neighborhood to a
primarily black one.
Supporters of
this measure argued that it would ostensibly reduce traffic and noise, in
addition to promoting safety.
10
The U.S. Supreme
Court dismissed a challenge to this action, stating that the road closure was
just a “routine burden of citizenship” and a “slight inconvenience.”
11
Justice Marshall dissented, acknowledging that this inconvenience carried a
“powerful symbolic message.”
12
He wrote,
“The picture that emerges from a more careful review of the record is one of a
white community, disgruntled over sharing its street with Negroes, taking legal
measures to keep out the ‘undesirable traffic,’ and of a city, heedless of the
harm to its Negro citizens, acquiescing in the plan.”
13
He believed that through this action, the city was sending a clear message to
its black residents,
14
and he could not understand why the
Court could not see that message.
***
Why have the Court, judges, and lawmakers—the entities
usually tasked with crafting and enforcing antidiscrimination law—failed to
find fault with these sorts of physical acts of exclusion? The most
straightforward reason is that it is difficult to show the necessary intent to
discriminate, especially in situations involving land use and the built
environment.
15
This Article, however, suggests an additional reason—specifically, that those
entities often fail to recognize urban design as a form of regulation at all. Scholarship
on urban planning, which describes the history of city-building, is rife with
tales of physical exclusion.
16
And although
the law has addressed the exclusionary impacts of zoning ordinances and
restrictive covenants, courts, legislatures, and most legal scholars have paid
little attention to the use of less obvious exclusionary urban design tactics.
Street grid design, one-way streets, the absence of sidewalks and crosswalks,
the location of highways and transit stops, and even residential parking permit
requirements can shape the demographics of a city and isolate a neighborhood
from those surrounding it, often intentionally. Decisions about infrastructure
shape more than just the physical city; those decisions also influence the way
that residents and visitors experience the city.
17
This Article examines the sometimes subtle ways that the
built environment has been used to keep certain segments of the
population—typically poor people and people of color—separate from others.
Further, it considers the ways in which the law views and treats the
exclusionary effects of these seemingly innocuous features of the built
environment—which the Article terms “architectural exclusion”—as compared to
more traditional and more obvious exclusionary practices.
Although exclusion is perhaps the most important stick in the bundle of
property rights, and although certain forms of exclusion can have beneficial
results,
18
this Article focuses on forms of exclusion
that result in discriminatory treatment of those who are excluded. This Article
builds on Lawrence Lessig’s regulatory theory, which asserts that behavior may
be regulated or constrained, in part, by “architecture.”
19
Lessig broadly defined architecture as “the physical world as we find it, even
if ‘as we find it’ is simply how it has already been made.”
20
The Article also employs the term “architecture” quite broadly to encompass
civil engineering, city planning, urban design, and transit routing. The
decisions of those who work in these varied fields result in infrastructure
that shapes the built environment. The resulting infrastructure is included in
this broad definition of architecture and functions as a form of regulation
through architecture.
21
Part I provides a theoretical framework for analysis by
focusing on the way that the built environment controls or regulates our
behavior. It examines the literature that discusses infrastructure placement
and design as physical and symbolic contributors to economic and social inequality,
exclusion, and isolation. While these concepts are foundational to planners and
architects, only a small number of legal scholars—including Lessig—have begun
to consider the built environment’s regulatory role. Regulation through
architecture is just as powerful as law, but it is less explicit, less
identifiable, and less familiar to courts, legislators, and the general public.
Architectural regulation is powerful in part because it is unseen; it “allows
government to shape our actions without our perceiving that our experience has
been deliberately shaped.”
22
This hidden power suggests that
lawmakers and judges should be especially diligent in analyzing the
exclusionary impacts of architecture, but research demonstrates that they often
give these impacts little to no consideration.
23
Part II considers the practice of architectural exclusion. It
details a number of ways that municipalities—through actions by their
residents, their police forces, or their local elected officials—have created
infrastructure and designed their built environs to restrict passage through
and access to certain areas of the community. Such devices include physical
barriers to access—low bridges, road closings, and the construction of walls—as
well as the placement of transit stops, highway routes, one-way streets, and
parking-by-permit-only requirements.
In Part III, the Article considers the way that courts have
analyzed exclusion through traditional land-use methods. Unlike architectural
exclusion, these traditional methods of exclusion are of central concern to modern
law, in part because lawmakers and legal analysis tend to focus on regulation
through law and norms. This Part provides context by briefly discussing the
history of overt physical exclusion by law in the United States. It examines
the laws and norms that led to racial and socioeconomic exclusion from certain
parts of a given community, and it surveys judicial and legislative treatment
of those traditional forms of legal regulation, including racially restrictive
covenants, racial zoning, and exclusionary zoning.
Part IV continues a discussion of exclusion in the courts,
but more specifically considers the application of existing legal
constraints—including the Equal Protection Clause and the Civil Rights Act of
1866—to architectural exclusion. It provides examples of a small number of
court cases that involve architectural exclusion and finds that even if legal
decision makers were to take account of architecture as a form of regulation,
our current jurisprudence appears inadequate for addressing exclusion that
results from design.
The Article concludes in Part V by recognizing that
architectural decisions are enduring and hard to change. While outdated laws
are often overturned when the norms informing them have sufficiently evolved,
our exclusionary built environment, which was created in the past, continues to
regulate in the present. Judicial and legislative solutions could alleviate, at
least in part, the continuing harmful effects of architectural exclusion. These
might include a version of the Americans with Disabilities Act that addresses
architectural exclusion on the basis of race or class, or the modification of
existing environmental review statutes to include an analysis of architectural
exclusion. Public education and engagement could also serve to bring more
awareness to the fact that the built environment often excludes. This Article
seeks to serve that end by offering examples of architectural exclusion with
the hope that citizens, courts, legislators, administrators, and legal scholars
will look for ways to accommodate more effectively the exclusionary effects of
design decisions.
I. architectural exclusion: theory
Throughout history, people have used varied methods to
exclude undesirable individuals from places where they were not wanted. People
used the law by passing ordinances saying that certain individuals could not
access certain locations.
24
Social norms
encouraged some to threaten undesirable persons with violence if they were to
enter or remain in certain spaces.
25
And cities were constructed in ways—including by erecting physical
barriers—that made it very difficult for people from one side of town to access
the other side.
26
The first two methods of discrimination have received sustained attention from
legal scholars; the third form, which I refer to as architecture, has not. This
Part departs from tradition by focusing on architecture instead of ordinances
and social norms.
A. Architecture as
Regulation
We often experience our physical environment without giving
its features much thought. For example, one might think it a simple aesthetic
design decision to create a park bench that is divided into three individual
seats with armrests separating those seats. Yet the bench may have been created
this way to prevent people—often homeless people—from lying down and taking
naps.
27
Similarly, upon seeing a bridge, or
a one-way street, or a street sign, many people tend to think that these are
just features of a place—innocuous and normal.
28
However, a number of social
scientists and planning scholars have argued that “monumental structures of
concrete and steel embody a systematic social inequality, a way of engineering
relationships among people that, after a time, becomes just another part of the
landscape.”
29
By structuring our relationships,
these features of the built environment control and constrain our behavior. The
architected urban landscape regulates, and the architecture itself is a form of
regulation. As this Part will detail, although many scholars of planning and
urban design have addressed the idea that architecture can regulate behavior,
and more specifically, exclude, these ideas have rarely been discussed in the
legal literature.
30
Legal scholars addressing constraints on behavior
traditionally focus on regulation through law,
31
which is often termed simply “regulation.”
32
However, as Lawrence Lessig has
asserted, tools besides law may constrain or regulate behavior, and those tools
function as additional forms of regulation.
33
These include norms,
34
markets,
35
and architecture.
36
While many legal scholars have begun
to consider both norms and markets in their work, here I focus on the
regulatory role of architecture.
37
The built environment does not fit
within the definition of “regulation” as legal scholars traditionally employ
that term; it is not a rule promulgated by an administrative body after a
notice-and-comment period.
38
However, the
built environment does serve to regulate human behavior and is an important
form of extra-legal regulation.
The idea that architecture regulates is found at the core of
much urban planning and geography scholarship, though that body of literature
does not always describe architecture as “regulation.” At the most general
level, it is not controversial among planning and geography scholars to assert
that the built environment often is constructed in a way that furthers
political goals.
39
Moreover, these scholars generally
agree that architectural decisions will favor some groups and disfavor others.
40
Many would also agree that architecture can be, and is, used to exclude.
41
As one planning scholar acknowledged, “[r]ace is a ubiquitous reality that must
be acknowledged . . . if [planners] do not want simply to be the facilitators
of social exclusion and economic isolation.”
42
Despite this deep theoretical understanding of the powerful
role that architecture plays in crafting experience, practicing planners
sometimes fail to afford sufficient weight to the concept of exclusion by
design.
43
They tend to make decisions that focus on urban infrastructure needs without
considering the impact that such decisions might have on citizens. Nicholas
Blomley terms this “traffic logic”: the idea that planners and civil engineers
prioritize the flow of pedestrians and traffic through a physical space, with a
focus on civil engineering, rather than prioritizing equal access to a physical
space for all, with a focus on civil rights.
44
As a result, many planning decisions
facilitate exclusion within cities.
45
Legal scholarship is generally less explicit than planning
scholarship about the ability of the built environment to shape behavior.
46
Exceptions include the legal
literature surrounding crime prevention through environmental design, led by
Neal Katyal,
47
and some emerging law and geography scholarship.
48
However, there is a trend among some legal scholars toward using architecture
as a metaphor, demonstrating a fledgling appreciation of its power to structure
people’s lives. The metaphorical use of architecture implies an underlying
recognition—foundational to planners and architects—that physical design
regulates and that the built environment controls human behavior. Legal
scholars use architecture as an analogue in their work with the understanding
that “small and apparently insignificant [architectural] details can have major
impacts on people’s behavior.”
49
For example, Lessig briefly provides specific examples of
ways in which the built environment regulates or controls:
That a highway divides two neighborhoods limits the
extent to which the neighborhoods integrate. That a town has a square, easily
accessible with a diversity of shops, increases the integration of residents in
that town. That Paris has large boulevards limits the ability of revolutionaries
to protest. That the Constitutional Court in Germany is in Karlsruhe, while the
capital is in Berlin, limits the influence of one branch of government over the
other. These constraints function in a way that shapes behavior. In this way,
they too regulate.
50
Here, Lessig acknowledges the role of
physical architecture as a constraint but does not focus on it. He instead
moves into an analogy that has been adopted by many intellectual property
scholars: they use “code” as the digital analogue of real-world architecture to
describe structures of and behavior in cyberspace.
51
Lee Tien builds on this work by asserting his concerns with architectural
regulation in the context of high technology, describing it as “regulation
intended to influence acts by shaping, structuring, or reconfiguring the practical
conditions or preconditions of acts.”
52
And Susan Sturm uses architecture as a metaphor in her work on structural
inequality within institutions of higher education.
53
A similar emphasis on architecture as a metaphor emerges from work on
libertarian paternalism. Richard Thaler and Cass Sunstein, for example, discuss
the concept of “choice architecture” and “choice architects,” recognizing that
those who control and create the context in which a decision is made have
influence over that decision because “there is no such thing as a ‘neutral’
design.”
54
Indeed, some choice architects alter
not only conceptual decision-making structures but the built environment
itself, suggesting that they are in fact quite similar to traditional
architects. For example, a cafeteria manager who places healthier food items in
a more visible and accessible location than junk food in order to nudge people
toward healthier choices is guiding actions through architectural decisions.
These architectural decisions create architectural constraints: features of the
built environment that function to control human behavior or hinder access—the
embodiment of architectural exclusion. In the case of the cafeteria, the
architectural constraint is that it is physically difficult to reach or see the
junk food, and thus it is harder to access.
These scholars use architectural concepts in an implicit
acknowledgment that the actual physical architecture of asphalt and steel binds
our actions. Thaler and Sunstein argue that choice architects influence our choices
only because—and precisely because—they understand that traditional architects
of the built environment influence our experience of the built environment.
55
Traditional architecture is not just a useful metaphor for exposing hidden regulatory
systems. It
is
regulation.
Consequently, it makes even more sense to apply the concept of regulation
through architecture to the built environment than it does to apply it to the
Internet or structuring decisions.
56
Although this may appear to be a banal observation, few in the legal community
have discussed architecture itself as a regulatory tool.
B. Architecture
as Architecture in Legal Scholarship: Racialized Space and Place, Briefly
Although legal scholars do not often write directly about
architecture as regulation, some—especially law and geography scholars and
critical race theorists—have confronted concepts like architecture, the built
environment, municipal infrastructure, space, and place in the context of class
and race.
57
As one commentator has noted:
It is hard to understate the central significance of
geographical themes—space, place, and mobility—to the social and political
history of race relations and antiblack racism in the United States. . . .
[S]egregation, integration, and separation are spatial processes; . . . ghettos
and exclusionary suburbs are spatial entities; . . . access, exclusion,
confinement . . . are spatial experiences.
58
For example, Lior Jacob Strahilevitz
examines “exclusionary amenities,” which are features of residential developments
that are generally expensive and that only appeal to certain demographic
groups.
59
By including these features in a
common interest community, a developer can deter unwanted potential residents—generally
poor people and people of color—from buying homes in that development.
Strahilevitz therefore recognizes that architecture and design can be employed
to steer human behavior and to promote desired ends.
60
This Article builds on this work by bringing light to additional ways in which
cities and communities have used design to exclude undesirable individuals writ
large, not just within residential communities. We often expect certain biases
in our residential neighborhoods, both due to Fischel’s Homevoter Hypothesis—suggesting
that homeowners are more likely than renters to vote and more likely to vote in
ways that will protect their property investment—and our country’s long history
of intentional discrimination and exclusion.
61
However, people tend to believe that the plan and structures of cities are created
for purposes of efficiency or with the goal of furthering the general public
interest, and they overlook the ways that design can exclude.
62
Legal academics have also proposed the idea that spaces
themselves have racial meanings.
63
For example,
Elise C. Boddie argues that places have racial identities based on their
history of or reputation for exclusion, and that courts should consider this
racial meaning for purposes of racial discrimination claims.
64
She further suggests that the racial meaning of a place can allow those in
charge, such as police officers, to determine who belongs in that place and who
does not.
65
Similarly, Stephen Clowney has addressed the way in which landscapes, parks,
and statues create a narrative that often marginalizes African Americans.
66
Despite this recognition from
scholars, Boddie points out that “law overlooks the racial identifiability of
spaces,” and Clowney notes that “landscape is one of the most overlooked
instruments of modern race-making.”
67
While these authors offer compelling explorations of spatial
organization’s ability to exclude and culturally marginalize, their critiques
have not yet penetrated the mainstream of land-use or civil rights law. Law and
lawmakers habitually overlook
68
the way that
the built environment functions as an express tool of exclusion.
69
For example, a leading land-use casebook has a chapter called “discriminatory
land use controls.”
70
This chapter addresses discrimination
against people of color, the poor, “unconventional households,”
71
and people with disabilities.
72
And while it
addresses tools of exclusion such as racially restrictive covenants and
exclusionary zoning, never does it mention exclusion based on features of the
built environment.
73
Perhaps even
more telling, despite the large number of examples of architectural exclusion
set forth in Part II, there are only a small number of cases addressing this
phenomenon.
74
Finally, some legal fields have addressed racialized forms of geographic organization—for
example, the environmental justice movement
75
and the literature addressing discrimination in the provision of municipal
services.
76
However, architectural exclusion is different in that it is concerned with the
placement and location of infrastructure that physically separates and inhibits
access, not just disparities in treatment based on geographic location.
Although regulation through architecture is just as powerful
as law, it is less identifiable and less visible to courts, legislators, and
potential plaintiffs.
77
While this
observation suggests that decision makers should be even more diligent in
analyzing the impact of architecture, research demonstrates that they often
fail to take it seriously.
78
To be clear,
officials may understand that an architectural decision could have an
exclusionary effect—they might even intend that result—but they generally do
not see their decisions as a form of regulation that should be analyzed and
patrolled in the same way that a law with the same effect would be. Exclusion
through architecture should be subject to scrutiny that is equal to that
afforded to other methods of exclusion by law.
79
II. architectural
exclusion: practice
The architecture of the built environment directs both
physical movement through and access to places. This Part details a number of
ways that states and municipalities—through actions by their residents, police
force, planning staff, engineers, or local elected officials—have created
infrastructure and designed their built environs to restrict passage through
and access to other areas of the community. A number of specific exclusionary
techniques have been used to keep people out, including physical barriers to
access, the siting of transit and transportation infrastructure, and the
organization of residential neighborhoods. While some of these designs
expressly serve to exclude those who are unwanted, others have that effect
indirectly. This Part will examine a number of these methods of exclusion.
A. Physical
Barriers to Access
A number of localities have used physical barriers to
exclude. A paradigmatic example of architectural exclusion through physical
barriers is Robert Moses’s Long Island bridges that were mentioned in the
Introduction to this Article.
80
Moses set
forth specifications for bridge overpasses on Long Island, which were designed
to hang low so that the twelve-foot tall buses in use at the time could not fit
under them.
81
“One consequence was to limit access of racial minorities and low-income
groups”—who often used public transit—”to Jones Beach, Moses’s widely acclaimed
public park. Moses made doubly sure of this result by vetoing a proposed
extension of the Long Island Railroad to Jones Beach.”
82
Moses’s biographer suggests that his decision to favor upper- and middle-class
white people who owned cars at the expense of the poor and African-Americans
was due to his “social-class bias and racial prejudice.”
83
Instead of garnering support to pass a law banning poor
people or people of color from the places in which he did not want them—which,
if the intent were clear, would not be permissible today
84
—Moses
used his power as an architect to make it physically difficult for certain individuals
to reach the places from which he desired to exclude them. Although in this
situation, there was at least anecdotal evidence of the architect’s intent,
that sort of evidence is often not available. Instead, our environment contains
low bridges that might make travel difficult for some, but we tend to view such
bridges as innocuous features rather than as exclusionary objects.
A municipality that lacks sufficient connections between
different parts of the community is often exclusionary because residents are
deterred from traveling. For example, sidewalks make walking easier and safer,
in large part by reducing the risk of pedestrian and vehicle collisions.
85
However, many communities lack sidewalks and crosswalks, making it difficult to
cross the street or walk through a neighborhood. Sometimes this is intentional.
86
For example, in his book detailing continuing racism and intentionally white
communities in the United States, James Loewen describes architectural
exclusion in some towns where “[s]idewalks and bike paths are rare and do not
connect to those in other communities inhabited by residents of lower social
and racial status.”
87
If someone wanted to walk or bike to
another area, then, it might have to be along the shoulder of a busy road or on
the road itself.
Similarly, the existence of divided highway-style median
barriers on local arterials makes it difficult for pedestrians to cross streets
or for cars to turn left.
88
In Palo Alto, traversing Highway 101
to reach affluent West Palo Alto from low-income East Palo Alto is dangerous
and involves passing through numerous busy intersections; the area has one of
the highest rates of car-pedestrian collisions.
89
The lack of secure pedestrian
infrastructure makes areas more difficult to access in a safe and easy manner.
Municipalities also often use the most straightforward
physical structures to exclude—walls and barriers. Walled ghettos are a
well-known example of physical segregation.
90
Jewish people in Europe were made to
live in separate, walled areas, as were Arab and European traders in China.
91
This form of physical exclusion by walls and barriers is nothing new.
92
However, it is not only a remnant of the distant past, but also exists in more
modern examples.
In Detroit in 1940, a private developer constructed a
six-foot-high wall—known as Eight Mile Wall—to separate an existing black
neighborhood from a new white one that was to be constructed.
93
Historically, the Federal Housing
Administration (FHA) provided financing for a new development project only if
the neighborhood was sufficiently residential and racially segregated.
94
In the case of the Eight Mile Wall, the FHA would not finance the new housing
project unless the wall was constructed because the FHA believed that the proposed
new development was too close to an existing black one.
95
The wall still exists today—a legacy of discriminatory government policy—and
though Detroit has experienced declines in segregation in recent years, this
city is still the most racially segregated metropolitan area in the United
States.
96
Another divider was an approximately ten-foot-high, 1,500-foot-long
fence that separated the racially diverse (though predominantly white) suburb
of Hamden, Connecticut, from the primarily black public housing projects in New
Haven.
97
Although the fence was finally
removed in May 2014, while it was in place, residents in the public housing
were extremely isolated from the surrounding community.
98
In order “to buy groceries at a Hamden shopping center three miles away,” the
public housing residents would “have to travel into New Haven to get around the
fence, a 7.7-mile trip that takes two buses and up to two hours to complete.”
99
The fence was originally erected by
the city of Hamden in the 1950s to keep crime in the New Haven projects out of
Hamden.
100
As recently as 2012, calls to remove the fence were met with resistance from
Hamden residents who “described the robberies and traffic overflow they said
would result from opening the fence.”
101
Hamden agreed to remove the fence only after the New Haven Housing Authority
threatened to “sue Hamden on civil rights grounds.”
102
A similar eight-foot-tall spiked fence was installed in 1998 around a public
housing project in Hollander Ridge in Baltimore.
103
This fence, which was constructed by the local housing authority with funding
from the Department of Housing and Urban Development (HUD), blocked access to
and through Rosedale, a contiguous, mostly white neighborhood.
104
The Rosedale residents wanted the fence to keep out crime and keep their
property values up, and “there was a not insubstantial vocal segment of the
Rosedale whose racist views were made readily apparent.”
105
Another common version of this phenomenon is one of the most
obvious forms of architectural exclusion: the walls, gates, and guardhouses of
gated communities.
106
These
architectural features serve to keep out those who are not expressly allowed
in.
107
Although these walls are generally put in place by private developers to keep
out those whom they do not want to access their communities, local governments
have the power to prohibit these barriers. And while some cities have taken
action to actively outlaw gated communities,
108
most have not.
109
Local governments also take affirmative steps to install
exclusionary architecture themselves. Often, cities use barriers and blockades
to mold traffic patterns. For example, the concrete barriers and bollards that
exist throughout the streets of Berkeley, California, were installed to calm
traffic;
110
however, the barriers do this by preventing people from driving down the
streets on which they are placed. In Shaker Heights, Ohio, the city installed a
“traffic diverter,” which was called “the Berlin Wall for black people” by
nearby neighbors in Cleveland.
111
In some communities,
the purpose of rerouting traffic is to inhibit harmful behaviors tied to drugs
and crime. Concrete barriers were put in place near the highways of Bridgeport,
Connecticut, to block quick access into the city by those who wanted to buy
drugs.
112
The strategy, according to police,
was that “buyers would fear ‘driving all over looped streets, stopping and
turning around, trying to find drugs with the possibility of having their nice
cars, their jewelry, their money ripped off as they look.’”
113
A similar technique was implemented
in Los Angeles, which put traffic barriers in place on certain streets that
allegedly provided quick escape routes for gang members who had committed
crimes.
114
In all these instances, the barriers and road closures were
instituted, installed, and approved based on their purported relationship to
public health and safety. While these barriers are often related to traffic,
they have marked secondary effects: they often intentionally restrict access by
a certain class of individuals (here, drug dealers and “johns”). They also make
access more difficult for those unfamiliar with the area—not just those bad
actors who the locality wants to keep out, but any outsider. It is quite
possible that these architectural decisions contribute to racial or
socioeconomic change in the neighborhoods.
115
Katyal notes that traffic measures implemented in North London resulted in a
neighborhood transformed “from a noisy and hazardous ‘red light’ district into
a relatively tranquil residential area.”
116
The possibility of transformation as a result of architecture raises a related
question: where did the people who were using these streets prior to the
architectural intervention go? Presumably, they were pushed to a
different—possibly less affluent—part of town.
117
This suggests that the area from which they were expunged may have had
residents with sufficient political capital to organize and make this change
happen.
B. Transit
Communities also engage in architectural exclusion in the way
they design and place public transit and transportation infrastructure. The
siting of bus stops and subway stations changes the built environment. These
routing decisions and patterns have a dramatic impact on the mobility of
individuals through, and the accessibility of, different areas of the
community.
118
Further, transit siting and
infrastructure decisions are often implemented with the intention of making it
more difficult for certain groups of people to access certain parts of the
community.
119
This section will provide examples
of these exclusionary transportation design decisions.
1. Placement
of Transit Stops
A present-day example of architectural exclusion comes in the
form of decisions about where to place transit stops. Throughout the United
States, many moderate- and high-income individuals travel—to their jobs, to
events, to see friends, and to shop—in a private vehicle.
120
In contrast, although people of all
socioeconomic groups use public transit—buses, subways, and light rail—in
larger metropolitan areas, low-income people and people of color often rely
more heavily on public transportation than people from other groups.
121
Those individuals therefore have a
hard time reaching areas that are underserved by transit.
Because there are a number of benefits to living near a
transit stop,
122
the Homevoter Hypothesis suggests
that homeowners will readily lobby for them.
123
However, many communities actively push their elected decision makers not to
bring transit stops to their neighborhoods. Research shows that the opposition
to transit is often motivated by the desire to block access by certain
“undesirable” people who ride transit (for example, people of color and the
poor).
124
As one scholar acknowledged, “race has been a factor limiting the geography of
transit.”
125
For example, wealthy white residents of suburban Atlanta, Georgia,
126
suburban San Francisco, California,
127
and Washington, D.C.,
128
have
organized to oppose the locating of transit stops in their communities, at
least in part because transit would enable people who live in poorer areas of
the cities to easily access these wealthier areas.
129
Although the decision to locate a transit hub is typically made by elected
local officials, those officials often act at the behest of their constituents.
130
When a locality is successful in its opposition, people who rely on transit to
get around will not have access to those communities.
131
As one scholar notes, “public transportation continues to be
routed in a way that makes it difficult for some blacks to get to and from
leisure venues that more affluent or more mobile persons freely enjoy.”
132
While particular individuals’ lack of access to any area is troubling,
transit-siting decisions are also intimately connected to employment
opportunities for minorities and low-income individuals.
133
Decisions to exclude transit stops (and those who use them) from parts of the
suburbs mean that many workers who would accept minimum-wage jobs in the
suburbs cannot physically access those jobs.
134
For example, although many jobs in the Detroit suburbs lack sufficient workers,
the city and the suburbs have not coordinated their public transportation
systems. Thus, those who live in the inner city—and who are mostly black—cannot
easily access suburban jobs, which are located in areas that are mostly white.
135
Similarly, employers in some suburban Atlanta areas were forced to pay higher
than their typical near-minimum wage to attract retired and teenage workers
from the surrounding community because lower-income people living in the
central city could not easily access the jobs.
136
Residents and policymakers in those areas have rejected proposals to bring
Atlanta’s rapid transit network (MARTA) into their communities, which would
have allowed inner-city workers easy access to these suburban jobs via public
transit.
137
The inability to use public transit to access the suburbs is one of the primary
barriers preventing black people from obtaining suburban jobs.
138
Moreover, as more low-income individuals move to the suburbs, they face
continued difficulty accessing jobs in their communities due to the lack of
transit options within suburban communities.
139
Sometimes transit will allow a person to get close to a given
area, but not all the way there, leaving the rider in a dangerous situation.
140
This was the scenario faced by
Cynthia Wiggins, a seventeen-year-old woman who was hit and killed by a dump
truck while she was attempting to cross a seven-lane highway to get to the mall
where she worked.
141
Wiggins took the bus from the inner
city, where she lived, to her job at the suburban mall.
142
However, the mall’s owners had actively resisted requests to allow the bus to
stop on its property; rather, the bus stopped outside the mall on the other
side of the large highway.
143
Documents produced during trial
revealed that this transit-siting decision was motivated at least in part by
race or class bias; a local transport official wrote in an internal document
that “‘[mall decision-makers] feel it will not bring in the type of people they
want to come to the mall.”
144
One mall
retail store owner recalled a conversation with a mall official who said
something like, “The people who rode the Walden Avenue bus were not the kind of
people they were trying to attract to the Walden Galleria.”
145
The mall did, however, allow some
charter buses to stop on its property.
146
Members of Buffalo’s black community asserted that the mall was “trying to use
the highway as a moat to exclude some city residents”
147
—a classic example of architectural
exclusion. The case settled, but it presents a stark example of the dangers
inherent in exclusionary transit design.
2. Placement
of Highway Routes, Bridge Exits, and Road Infrastructure
Bridge exits and highway off-ramps are often located so as to
filter traffic away from wealthy communities. The Robert F. Kennedy Bridge
(formerly known as the Triborough Bridge), as it traverses the East River from
Queens to Manhattan, “makes an almost perpendicular hard right turn north, so
that the traffic lets out in Harlem, not on the wealthy Upper East Side.”
148
According to one commentator, this
terminus location was chosen due to “a combination of regard for the wealthy
Upper East Side, disregard for the residents of Harlem, and plain old-fashioned
graft.”
149
It was not selected for convenience, as most traffic would be coming from and
heading to areas below 100th Street.
150
Similarly, the Northern State Parkway avoids the affluent North Shore area of
Long Island because wealthy homeowners in the area were able to convince Moses
to reroute the location of the parkway, which resulted in a five-mile detour.
151
The placement of highways so as to intentionally displace
poor black neighborhoods is even more familiar.
152
Policymakers “purposeful[ly]” decided to route highways through the center of
cities, often with the intent “to destroy low-income and especially black
neighborhoods in an effort to reshape the physical and racial landscapes of the
postwar American city.”
153
Although this work was undertaken in
order to make places more accessible to cars, it was also done with an eye
towards eliminating alleged slums and blight in city centers.
154
These tactics were so common that they earned a name among critics: “white
roads through black bedrooms.”
155
For example, in 1954, the City of Detroit was engaged in
urban renewal.
156
It razed the
black community of Black Bottom to build the I-375 highway and new developments
such as the Mies van der Rohe-designed Lafayette Park
157
and public housing projects.
158
In the early
1950s, there were an estimated 140,000 black people living in Black Bottom, and
while some middle-income families in the area were able to relocate to more
prosperous neighborhoods, the urban renewal project forced many low-income
residents into public housing.
159
Now Detroit
is considering removing the architectural barrier of the aging I-375 highway
and creating a pedestrian-friendly parkway to connect Lafayette Park with the
central business district.
160
This story is not unique. Local government officials and state
highway planners in Miami intentionally located I-95 so that it would cut
through Overtown, an inner-city black community.
161
Although it had previously been known as “the Harlem of the South,” Overtown
became “an urban wasteland dominated by the physical presence of the
expressway.”
162
I-10 through New Orleans was constructed along a portion of North Claiborne
Avenue, which was “the center of an old and stable black Creole community.”
163
Highway 101 separates the Latino and black residents of East Palo Alto,
California, from the west side of town.
164
Other examples include streets in Omaha, Nebraska;
165
I-880 in Oakland, California;
166
a turnpike in Delaware;
167
I-64 and I-77 through Charleston, West Virginia;
168
the list goes on.
To some extent, the placement of highways through city
centers is a legacy issue, meaning that it is an issue that remains in the
present because of decisions made in the past.
169
It was not illegal to tear apart poor neighborhoods at the time that urban
renewal was in full swing, and the resultant features of the built environment
are now hard to change.
170
However, the
elimination of low-income and minority neighborhoods under the guise of
clearing blighted areas is far from a legacy issue in and of itself; as the
Supreme Court’s decision in
Berman v.
Parker
established, clearing “blight” is an acceptable use of the eminent
domain power.
171
Notably, in the aftermath of
Kelo
which reaffirmed the validity of takings for economic development purposes,
many states passed laws restricting the use of eminent domain; however, many of
those new laws retained exceptions allowing its use to clear blight.
172
3. Wayfinding:
One-Way Streets, Dead-End Streets, Curvy Streets, and Confusing Signage
Another method of exclusion involves the creation and use of
one-way streets. These streets function to funnel traffic away from certain
areas and into others.
173
There are
sometimes health- and safety-based reasons for the creation of one-way streets,
including traffic-calming and pedestrian safety.
174
But they also may serve to exclude by making it difficult to gain access by car
into or out of certain parts of a community.
175
For example, Greenmount Avenue in East Baltimore separates the poor,
predominantly African-American neighborhood of Waverly on its east side from
the wealthy, predominantly white neighborhood of Guilford on its west.
176
While it is easy to access Waverly from Greenmount due to the existence of a
grid pattern of two-way cross streets, that grid does not extend to the west
side of Greenmount.
177
Rather,
access to Guilford on the west is blocked by houses or bollards, and in the
rare instance that there is a street crossing from the west over Greenmount, it
is typically a one-way street headed east, toward Waverly.
178
In addition to making vehicular access difficult, one-way streets such as these
are exclusionary in that they can confuse visitors, which might discourage
their continued presence in a neighborhood, or make it hard for them to find
their way to or from a specific home.
179
Many one-way streets were created during urban renewal with the stated goals of
accommodating automobile traffic and allowing people to pass quickly through
cities.
180
More recently, however, some communities have begun to convert formerly one-way
streets into two-way streets, in part to reduce confusion and increase access.
181
Communities also rely on other confusion techniques to keep
people out, or to make it hard for them to find their way around an area. For
example, in describing Darien, Connecticut,
182
one of many intentionally white communities in the United States, James Loewen
notes, “[e]ven street signs are in short supply in Darien, . . . making it hard
to find one’s way around that elite sundown suburb. Darien doesn’t really want
a lot of visitors, a resident pointed out, and keeping Darien confusing for
strangers might deter criminals—perhaps a veiled reference to African
Americans.”
183
A similar, though perhaps less nefarious, technique has been used to keep
tourists and “city folks in search of weekend homes” out of Bolinas,
California.
184
Citizens there have, for years, been
removing directional signs that the State Department of Transportation places
on Highway 1 to direct drivers toward Bolinas.
185
In fact, in 1989, the residents of the town held a nonbinding advisory vote,
and approximately three-quarters of the residents voted to prohibit road signs
that would direct travelers to Bolinas.
186
Further, the design of many suburban communities, with their cul-de-sacs and
curvy streets, makes them confusing to outsiders who cannot see what lies on
the other side of the neighborhood. This street layout also gives non-residents
fewer reasons to enter the neighborhood in the first place; the multiple dead
end streets and cul-de-sacs of a suburban neighborhood often all branch off a
single arterial road. Thus, unlike the traditional urban grid pattern, these
neighborhoods lack connectivity to other parts of the community, making them
useless to those who want to cut through.
187
Further, while perhaps successful from an exclusionary standpoint, these
architectural elements often result in less efficient travel for residents.
4. Residential
Parking Permits
In some neighborhoods, people can park on the street only if
they live in the neighborhood and have a residential parking permit or are
given a guest permit by a resident.
188
As a result, those who do not live in or have friends in the neighborhood cannot
drive in and park there. Moreover, these neighborhoods are often not easily
accessible via public transportation. These exclusionary parking schemes are
often imposed administratively; they do not provide a formal opportunity for
non-residents—or, often, residents—to offer their input.
189
Although a residential permitting scheme like this allows neighborhoods to
physically exclude, it also imposes bureaucratic requirements on residents such
as purchasing parking permit stickers and remembering to give guest passes to
visiting friends.
The Supreme Court expressly upheld the ability of cities to
enact this sort of parking permit requirement. In
County Board of Arlington County v. Richards
190
the county had adopted a rule that restricted daytime street parking to
residents with residential parking permits,
191
excluding commuters who had previously parked on local streets.
192
The Court held that such a scheme was permissible and did not violate the Equal
Protection Clause, since it was purportedly enacted to reduce hazardous traffic
conditions, air pollution, and noise, as well as to preserve property values
and the safety of neighborhood children.
193
Courts have similarly upheld residency restrictions that prevent some
individuals from using public facilities such as beaches, sports courts, and
playgrounds on the grounds that residents’ taxes and fees resulted in
construction of those facilities, and so residents should be given use
priority.
194
The effect of these types of
residency requirements is often to exclude people who do not live in a given
neighborhood from that neighborhood.
The examples of architectural exclusion identified in this
Part are concerning in that they reveal a number of underlying problems. For
example, physical exclusion prevents members of minority groups from partaking
in the civic life of the community; makes it extremely difficult or physically
dangerous for some people to access wealthier communities and jobs; may result
in stigma or harm to dignity; can often destroy existing communities of color;
and may allow groups to conceal racially discriminatory motives behind a veneer
of health and safety rationales. These problems and others will be analyzed
more fully in the remainder of this Article.
III. a brief history of exclusion by
law (and norms)
This Article has demonstrated that the built environment
serves to segregate and has highlighted ways in which segregation by
architecture, like segregation by law, operates in a pernicious manner. The
remainder of the Article seeks to establish how legal decision makers tend to
overlook the regulatory nature of architectural forms of exclusion. It does
this by examining judicial consideration of physical exclusion by law and by
architecture.
Before exploring the ways that courts have approached cases addressing
architectural exclusion, it is important to consider the long history of
legally permissible physical exclusion in the United States and the eventual
intervention in these practices by legislators and courts. Legal scholars and
historians have repeatedly recounted the formal laws and informal norms that
furthered racial and socioeconomic exclusion in this country.
195
The use of “[i]nformal measures
ranging from disapproval to threats and violence” to exclude African Americans
have been traced back to at least the 1790s.
196
And the wealthy have long used
formal legal methods to keep the poor and people of color out of their
communities.
197
This Part describes the way that
law
has historically been used to exclude “undesirable” members of
a community from certain parts of the community. It analyzes the most common,
explicit tools of exclusion—including racial zoning, racially restrictive
covenants, and exclusionary zoning—that courts and legislators tend to view as
proper topics for consideration, though they often fail to consider
architecture and design as validly within their purview.
A. Legal
Regulation that Furthered Exclusion
When land-use and property-law scholars consider the
interplay between land-use law and the exclusion of people of color and the
poor, they tend to think about methods of exclusion from neighborhoods through
the use of law—racial zoning, racially restrictive covenants, and exclusionary
zoning.
198
This section will briefly consider
each in turn, demonstrating that while courts have disapproved of racial zoning
and racially restrictive covenants, they have been more ambivalent about
exclusionary zoning, finding that it is generally not actionable.
1. Judicial
Disapproval
a. Racial
Zoning
Initially, some cities tried to use their zoning powers
directly to keep out minorities.
199
Baltimore passed one of the first
racial zoning ordinances in 1910, and the ordinance was quickly imitated by a
number of Southern cities.
200
In 1913,
Atlanta enacted a racial zoning ordinance, which like most others at the time,
designated each block in the city based on the race of the majority of people
living there at the time.
201
After those designations were made,
black people could not move onto primarily white blocks.
202
The commonly asserted reason for the passage of these ordinances was blatantly
racist—“to prevent too close association of the races, which association
results, or tends to result, in breaches of peace, immorality, and danger to
the health.”
203
In support of Baltimore’s ordinance, its mayor stated that “[b]lacks should be
quarantined in isolated slums in order to reduce the incidents of civil
disturbance, to prevent the spread of communicable disease into the nearby
White neighborhoods, and to protect property values among the White majority.”
204
These were commonly held views among many at the time.
205
In the 1917 case
Buchanan
v. Warley
206
however, the
United States Supreme Court held that a similar racial zoning ordinance in
Louisville, Kentucky, prohibiting the sale of property to black people,
exceeded the city’s police powers and violated the Fourteenth Amendment.
207
While the Court’s opinion mentioned racial equality, its holding centered on
the issue of property rights and due process.
208
Undeterred, a number of Southern cities, including Atlanta, New Orleans, and
Charleston, hired well-known planning professionals to design new racial zoning
ordinances that could withstand judicial scrutiny after
Buchanan
209
These
attempts were unsuccessful; courts struck them down.
210
Having been blocked from using public law in a directly discriminatory way,
those intent on exclusion turned to other methods.
211
b. Racially
Restrictive Covenants
Many community members relied on private law and adopted
racially restrictive covenants, and these covenants became a common way to keep
minorities out of certain neighborhoods for many years.
212
Restrictive covenants typically
limit what homeowners in a given neighborhood can do with, on, or to their
property; they not only restrict the original parties to the contract but also
encumber future owners because they “run with the land.”
213
While a typical restrictive covenant might forbid a homeowner
from painting her house with polka dots or planting anything other than grass
in the front yard, racially restrictive covenants typically stated that a
homeowner could not sell or rent her home to anyone other than a white person.
214
Courts initially viewed racially restrictive covenants as legal; in
Corrigan v. Buckley
215
the Court noted that the covenants were merely private contracts concerning
private property and involved no state action.
216
Not only did the Supreme Court give these covenants the
imprimatur of acceptability, but the covenants were also recorded and thus
became an official part of a property’s chain of title.
217
Their legality allowed these covenants to become “institutionalized and
internalized,” and therefore very hard to challenge.
218
That said, many legal scholars at the time vigorously opposed the Court’s
treatment of racially restrictive covenants in
Corrigan
219
Practicing
real estate lawyers also expressed concern about the legal validity of racially
restrictive covenants, even after the Court’s decision.
220
Some worried that courts would hold the covenants to be unreasonable restraints
on alienation and consequently strike them down.
221
In 1948, the Court decided
Shelley v. Kraemer
222
famously
holding that racially restrictive covenants could not be enforced because such
enforcement would constitute state action.
223
There are also now federal statutory prohibitions against racially restrictive
covenants,
224
and some states require homeowners’
associations to affirmatively renounce any lingering recorded racially
restrictive covenants.
225
2. Judicial
Ambivalence: Exclusionary Zoning
After being blocked from using public- and private-law
exclusionary techniques, some municipalities found ways to use zoning more
indirectly to keep out residents they viewed as undesirable. Exclusionary
zoning is a method whereby municipalities’ zoning regulations require large lot
sizes, square-footage minimums for buildings, or occupancy restrictions that
make property unaffordable to or impractical for use by poor people or those
who live with large or extended families.
226
While these exclusionary tactics are
often directed at low-income people, they are arguably also racially motivated
given the high correlation between race and class.
227
Sometimes forms of exclusionary
zoning are less well-known yet have the same effect—for example, prohibiting
people from operating “lower-income” home businesses such as barber shops and
child-care facilities in residential homes but allowing uses such as in-home
insurance practices.
228
Those supporting exclusionary zoning practices are often
purportedly motivated by the desire to preserve property values,
229
but sometimes their motivations do not seem all that different from the more
nefarious ones that were set forth in support of racial zoning.
230
There is much evidence to suggest
the use of facially race-neutral exclusionary zoning as a strategy to further
racial homogeneity and to exclude racial minorities.
231
For example, citizens who supported the repeal of a zoning ordinance in Ohio
allowing construction of a low-income housing project expressed concerns at
public meetings “that the development would cause crime and drug activity to
escalate, that families with children would move in, and that the complex would
attract a population similar to the one of Prange Drive, the City’s only
African-American neighborhood.”
232
Although many legal scholars have critiqued the practice of
exclusionary zoning,
233
it is still
quite widespread. This form of exclusion passes legal muster in a way that
outright discrimination does not;
234
no modern court has found exclusionary zoning to be a violation of federal
constitutional requirements.
235
It is hard to see how standard
federal constitutional arguments would work in the context of exclusionary
zoning,
236
especially because housing is not a fundamental right,
237
wealth is not a suspect classification,
238
and the Court has suggested that zoning restrictions do not interfere with the
fundamental right to travel.
239
As Lawrence
Gene Sager explained:
Zoning ordinances that operate to exclude the poor
may have been enacted with exactly that purpose in mind; it is also entirely
possible in any given instance that no exclusionary intent was involved. While
the extent to which other legitimate ends of government are served by an
ordinance is of course relevant to its constitutional validity, . . . [i]t will
be assumed that no [discriminatory] purpose is identifiable. The ease with
which this sort of motive may be disguised and the understandable judicial
reluctance to pry into motive makes this a realistic basis for inquiry.
240
To the extent the Supreme Court has spoken to the issue of
exclusionary zoning, it has made constitutional challenges to exclusionary
ordinances quite difficult.
241
The Court
held in
Village of Arlington Heights v.
Metropolitan Housing Development Corp
242
that discriminatory intent is necessary to invalidate governmental action in
the context of exclusionary zoning; a plaintiff must prove intentional
discrimination to trigger strict scrutiny.
243
Since
Washington v. Davis
244
legal scholars have explained how
difficult it is to prove intentional discrimination. That is true even in cases
challenging more traditional legal regulations like zoning ordinances;
245
proving that infrastructure
decisions were made with the intent to discriminate is even more unlikely.
246
Indeed, in
Memphis v. Greene
247
which was decided shortly after
Arlington
Heights
, the Court was unwilling to find evidence of discriminatory intent
in the face of clear disparate impact.
248
Given these facts, it is likely that most exclusionary zoning
claims would be examined under a rational basis standard.
249
And in the
Village of Belle Terre v.
Boraas
250
the Supreme Court upheld an exclusionary zoning ordinance after applying
rational basis review.
251
It will
always be difficult for a plaintiff to overcome rational basis review.
252
This is especially true in the context of land use because local governments
make land-use decisions pursuant to their police powers, which have been
interpreted quite broadly;
253
it is not
difficult to find legitimate, rational justifications—typically relating to
health, safety, or welfare—for most zoning ordinances.
254
While no state has forbidden exclusionary zoning via statute,
255
some state courts have placed limitations on it.
256
An especially well-known and far-reaching example of this comes from the New
Jersey Supreme Court’s decision in
South
Burlington County NAACP v. Township of
Mount
Laurel
Mount Laurel I
).
257
In that case and its successor,
258
the court
invalidated exclusionary zoning practices based on the general welfare
provision in the state constitution.
259
The court interpreted this provision so that “general welfare” applied to the
state as a whole, and appropriate zoning was required to advance the state’s
general welfare.
260
Therefore,
the court held that every municipality that wanted to develop more housing in
the state had to provide its fair share of the region’s needed affordable
housing.
261
Of note, although the plaintiffs pled both race and economic discrimination,
the court based its opinion on the economic grounds alone.
262
While
Mount Laurel I
suggests the possibility that exclusionary zoning could be struck down more
broadly throughout the country, this seems unlikely; despite the successful
outcome and aftermath of
Mount Laurel
263
other states have not readily followed suit.
264
It is unclear precisely why more state courts and legislators have not mandated
affordable housing. One possibility is political: affordable housing is
unpopular in many affluent communities.
265
Further, unlike racial zoning and racially restrictive covenants, which clearly
exclude on the basis of race, exclusionary zoning is fuzzier. While its intent
and effect certainly result in the exclusion of certain groups, exclusionary
zoning does not inherently prohibit or forbid people of color, or even
low-income individuals, from entering or living in the community. Rather, it
just makes it exceedingly unlikely that those groups of individuals will be
able to live in those areas. In this way, exclusionary zoning has more in common
with architectural exclusion than it does with racial zoning and restrictive
covenants. While exclusionary zoning and architectural exclusion make access
much more difficult for certain groups, these practices do not mandate
exclusion.
The bottom line seems to be that the Supreme Court has been
fairly active and responsive in striking down laws that create “formal racial
barriers”—racial zoning, racially restrictive covenants, Jim Crow laws
requiring physical separation in public places
266
—but not so when considering other
“less obvious forms of discrimination”—including (to some extent) exclusionary
zoning and architectural exclusion.
267
Although it is possible that in the future, the court may become more active in
these latter areas, it is doubtful due to current Equal Protection
jurisprudence and intent requirements.
268
B. Social
Norms That Furthered Exclusion: Sundown Towns, “White Terrorism,” and Threats To
Keep the “Other” Out
One reason that restrictive covenants and zoning for
exclusion were so common is that they were preceded by a long history of norms
in support of segregation in the United States
269
: “The dominating normative ideas in
neighborhood segregation were first that minority neighbors would undermine
white property values, and second that white residents owed it to their
neighbors to keep that from happening.”
270
These norms existed before their exclusionary legal counterparts,
271
and even after the law no longer expressly enforced those norms, the norms themselves
served as a form of regulation. As racial zoning fell out of favor, its “eventual
demise . . . did not undermine the underlying social norms. The norms were
based in a belief that Providence created racial barriers, and violence was
natural to prevent integration.”
272
The book
Sundown Towns
identifies large numbers of ordinances and customs that purportedly made it
illegal for African Americans to live in certain communities.
273
Even after they were technically
illegal, these ordinances were enforced with threats and violence on the part
of white residents to drive existing minorities out of their communities, and
to keep new ones from moving in.
274
Scholars describe the “white terrorism” endured by African Americans, which
“was the everyday reality, and it induced a widespread state of fear in the
African American community.”
275
These norms
are resilient; such harassment continues today in some areas. For example, the
Sixth Circuit recently indicated that city officials, including police
officers, may have taken part in an intimidation and harassment campaign to
induce African Americans to move elsewhere.
276
An important point here is that law could be used to restrain and condemn these
norm-based discriminatory practices and regulations; legislatures could craft
laws to outlaw such discriminatory behavior, and strong enforcement of those
laws could ensure that harassers are punished accordingly. Law could be used to
overcome or disrupt exclusionary architectural practices as well.
C. A
Clarification: Legal Exclusion Versus Architectural Exclusion
Before moving on to an analysis of architectural exclusion in
the courts, it is important to briefly solidify the distinction between that
form of exclusion and the foregoing material in this Part, which has primarily
focused on legal, or law-based, forms of exclusion. Legal exclusion concerns the
use of traditional legal tools like ordinances and covenants to exclude people
from certain locations, whereas architectural exclusion uses physical features
of the built environment to do so. Tools of legal exclusion are enforced by law
enforcement officials, agencies, self-policing, and vigilante action, while
architectural exclusion is enforced by its very presence, which physically
inhibits or hinders passage. However, because so much of the built environment
was created pursuant to laws, it is hard to decouple the two completely.
277
For example, legal exclusionary tools such as zoning and
covenants were primarily aimed at preventing certain races or classes of people
from living or owning property in a given area,
278
and the legacy of those laws remains; many neighborhoods continue to be
segregated nearly a century later.
279
In contrast, architectural exclusion is broader in that it prevents ease of
access to or passage through a given location. A wall doesn’t mean that a
person
cannot
enter a community or
other space; it just makes it more difficult for him to do so. Notwithstanding
this important distinction, many examples of architectural exclusion described
in Part II—especially the urban-suburban transit divide and the suburban use of
confusing street designs—result in exclusion precisely because the individuals
being excluded do not live in the same neighborhood as those doing the
excluding. In these instances, architectural exclusion is possible because of
the legacy of legal exclusionary practices.
280
The interaction between the two forms of exclusion is perhaps less pronounced
in the context of certain physical architectural barriers, such as low bridges
or difficult pedestrian crossings, which will have an impact regardless of
residential segregation.
281
Finally, architectural exclusion is perhaps less connected to
the highly important values that we associate with private property ownership;
zoning and covenants implicate the right to exclude from private property in a
way that rights of access to or passage through a public place do not.
282
In the private property context, society places value on the right to exclude.
283
In contrast, we tend to believe that public spaces should be open to all, and
thus we do not value exclusion in that context.
284
De jure residential segregation historically required and allowed individuals
to exclude in a way that is no longer permissible.
285
So while we value the right to exclude others from private property, we place
limits on the extent of and reasons for that exclusion.
286
De jure residential segregation also resulted in architectural constraints to
support and further that segregation.
287
Many examples of architectural exclusion addressed above were constructed while
de jure segregation was still in force—often with the intent of furthering that
segregation—and remain in place today. Although most segregation by law is no
longer permissible, its remnants—the legacy of that segregation—continue to
exclude individuals from public spaces. Thus, we are faced with a gap between
the value that we purportedly place on exclusion (it is valued in private but
not public spaces) and the exclusion that we see on the ground: our public
streets and bridges, which should be equally accessible to all, are often not.
Architectural exclusion is pernicious in that it is invisible to most, and yet
it continues to solidify otherwise defunct forms of legal exclusion.
IV. architectural exclusion in the
courts: a lack of attention and success
A review of the limited case law and scholarly literature in
this and related areas suggests that there are two barriers to finding
exclusionary architecture to be an illegal form of regulation. The first is the
failure of courts, legislatures, and citizens to recognize that architecture
regulates. The result is that many examples of architectural exclusion likely
go unchallenged or are dismissed. The second is that, even if challengers and
decision makers come around to understanding the idea of architecture as
regulation, our existing jurisprudence is insufficient to invalidate
288
this form of exclusion.
289
Existing
legal protections located in the federal Constitution and federal statutes have
led courts to invalidate some traditional methods of exclusion, including
racial zoning and racially restrictive covenants, but they have generally not
been sufficient to curb exclusionary zoning.
290
This Part offers support for the argument that existing legal protections are
likely insufficient to deal with the problem of architectural exclusion. This
is true despite the fact that “questions of racial equity . . . are so vastly
more salient in today’s moral universe”—and better answers to those questions
are now more commonly accepted—than they were at the time that racial covenants
and racial zoning were frequently used.
291
These two barriers contribute to the relative dearth of cases and scholarly
articles addressing architectural exclusion.
292
A. A
Failure To Recognize Architecture as Regulation
There are a number
of reasons that potential challengers, courts, and legislators might not take
architectural exclusion into account, but key among these is that architecture
and law are, in many ways, fundamentally different as regulatory tools.
Specifically, architecture is less explicitly regulatory than is law. Lessig
refers to this as architecture “hid[ing] its pedigree.”
293
As another commentator notes, “architectural regulation operates
surreptitiously and may not even be perceived as governmental action.
Architectural regulation thus allows government to shape our actions without
our perceiving that our experience has been deliberately shaped, engendering a
loss of moral agency.”
294
If individuals are unaware that
architecture is deliberately shaping their behavior, they may be less likely to
bring a legal challenge against exclusion that results from architecture
because they might not perceive the architecture as the reason for the
exclusion, or as something that can or should be challenged in a court of law.
295
For example, when
someone crosses the road at one particular point instead of another, or must
walk a long distance to reach a bridge to cross over a highway, she is not
likely consciously aware that an actual person or persons made intentional
decisions so that she would have to follow a certain path of access.
296
And even if one realizes that these
architectural decisions were deliberate, it is hard to know
who
actually made those design choices.
297
The “career” of a law is clearer than that
of architectural regulation.
298
Indeed, public participation in the
creation of laws is often more explicit and better understood than
participation in the architectural decisions that result in infrastructure and
the built environment.
299
Unlike laws, architecture
does not
necessarily have to pass through a political process. . . . [T]he executive—the
local police department or attorney general—does not serve as a check on the
legislature. And if the change makes [a certain] behavior impossible or
unlikely, if there is no law to interpret or apply, then the judiciary has
neither need nor opportunity to get involved.
300
Here, it is useful
to make a comparison to exclusionary zoning,
301
which unlike architectural exclusion, is
clearly a form of regulation by law.
302
Zoning occurs through standard political processes and is well recognized by
courts as a form of regulation subject to their oversight. That said,
exclusionary zoning presents an interesting point of comparison: it occupies a
middle ground between racial zoning and restrictive covenants on the one hand,
where the court has forcefully acted to strike down exclusionary practices, and
architectural exclusion on the other, where it has not. And although
exclusionary zoning is mostly not actionable,
303
there have been many law review articles
discussing it, and it is covered in depth in land-use casebooks.
304
This is not true of architectural
exclusion, although it is also mostly not actionable under current jurisprudence.
This raises the question: why is exclusionary zoning covered by scholars and
courts, while architectural exclusion is mostly not? Perhaps this difference is
due in part to the fact that exclusionary zoning is a form of legal exclusion,
which is more readily challenged by aggrieved citizens and which is more
recognizable to courts and scholars.
305
In addition to the
fact that architecture is a less express means of regulation than is law,
architectural constraints are experienced differently than are legal
constraints. As Lessig notes in the context of cyberlaw, “constraints of
architecture in real space—railroad tracks that divide neighborhoods, bridges
that block the access of buses, constitutional courts located miles from the
seat of the government—they are experienced as conditions on one’s access to
areas of cyberspace.”
306
A person therefore experiences architecture
physically; the physical design of the built environment affects a person’s
ability to travel or move around in that environment.
307
Law constrains behavior, while architecture
constrains physical movement and hence behavior.
308
The physical nature
of architectural regulation also relates to the ways in which the temporal
constraints imposed by law differ from those imposed by architecture: law
regulates both before and after the fact, while architecture regulates only
before the fact, as a “present constraint” on action.
309
For example, say that there is a large wall
along a line that divides public property from private property. Law controls
after the fact here in that if you scale the wall, or somehow enter the private
property, you are trespassing; you are breaking the law and can be sanctioned
for doing so—through arrest, jail time, or a fine.
310
After you have crossed the line, and broken
the law, the law’s sanctions may be enforced against you. But law also
regulates before the fact. For example, you may decide not to scale the wall,
and not to enter the private property, because of the existence of the law.
Assuming you know about the law and its sanctions, it influences—or
constrains—your behavior. You may decide that the action—scaling the wall or
entering the private property—is insufficiently valuable to run the risk of the
sanction. Because violation of the law comes with after-the-fact sanctions, the
consequences of law-breaking explicitly play into your before-the-fact
decision-making process. Notably, norms also constrain in this way: perhaps you
would face social sanctions from your neighbors if you scaled the wall, as it
might be “unneighborly” to enter another’s private property.
311
In contrast, let us
assume that the wall is very high and smooth; it is so high and smooth that it
cannot be scaled without very expensive equipment and a high level of skill.
And it is solid and goes on for miles; there is no way through this wall, and getting
around it would require a long journey. The wall separates the public from the
private property in this location; you will not be able to enter the private
property unless you have the equipment, skill, and time to circumvent the wall.
This is an architectural constraint: the existence of the wall stops you—before
the fact—from entering the private property. While you had to undergo a
relatively complex thought process to conclude that you should not climb the
wall because of the
legal
consequences of doing so, your decision not to climb the wall because it is
physically difficult
to do so is a more
intuitive—perhaps even subconscious—process of reasoning. Although the
existence of the wall constrains and shapes behavior just as much as, if not
more than, law, we often do not consider the existence of the wall—the
architecture itself—to be a form of regulation. One reason for this is likely
that it is not something people—including judges and legislators—naturally
consider to be within the purview of a court of law or a legal analysis.
Another
differentiating factor between architecture and law relates to the way in which
each is disobeyed and the consequences for doing so. As I have already
mentioned, when a person disobeys a law, she acts in the face of a rule that
says she cannot do something, and then she suffers after-the-fact sanctions.
312
In contrast, “[d]isobedience of
architectural regulation . . . involves either [1] exit from the architected
system or [2] circumvention of the architected constraint.”
313
In the context of the built environment, it
is often quite difficult to physically circumvent an architectural constraint.
314
This is because the physical environment is
enduring and often hard to change. For example, if an area without access to
public transportation has only a single bridge connecting one community with
another, and that bridge is three miles away, a person without access to
personal transportation who is physically able-bodied could ostensibly walk the
distance to the bridge. However, that person would also need to have the time
to do so. On the other hand, she could seek to bypass the architectural
constraint by finding transportation—asking a friend for a ride or borrowing a
bicycle.
315
With respect to the first option, “exit
from the architected system,” a person would have to leave the excluded
community entirely in order to disobey the architectural constraint.
316
Although regulation
through architecture is different from legal regulation in all of these ways,
the two share some key features. Most importantly, just as law has been used to
shape behavior, design has been used across time and civilizations to
perpetuate desired systems of belief.
317
Although we easily recognize that the law
has this function, the idea that architecture also shapes tastes is much less
common in the legal literature.
318
However, the idea of architecture as social
control is foundational to social science fields such as geography,
environmental psychology, and planning.
319
Further, research supports the notion that
the built environment communicates;
320
it functions as a symbol, expressing the
views of those who create it and imposing those views on those who interact
with it each day.
321
The philosopher Martin Heidegger, in discussing
buildings and the built environment, noted our tendency to consider
architecture as merely architecture, as opposed to—or at least prior
to—symbolic expression. He wrote:
People think
of the bridge as primarily and really
merely
a bridge; after that, and occasionally, it might possibly express much else
besides; and as such an expression it would then become a symbol . . . . But
the bridge, if it is a true bridge, is never first of all a mere bridge and
then afterward a symbol.
322
This
sentiment certainly brings to mind Moses’s Long Island bridges,
323
which existed not just to carry people over
the expressway but also to exclude people from Jones Beach at the end of the
expressway. Another architectural scholar writing on the subject noted that
buildings are not just buildings, but “
mediating
objects
through which we create a world for ourselves and enter into a
dialogue with the world around us.”
324
Though research suggests that design
functions in this way, “we usually do not stop to inquire whether a given
device might have been designed and built in such a way that it produces a set
of consequences logically and temporally
prior
to any of its professed uses.”
325
Despite the fact
that both law and design control behavior, many fail to view the important
symbolism or purpose behind many architectural decisions.
326
For this reason, people aggrieved by
architecture may be less likely to think of bringing a lawsuit to challenge its
injustices. Further, some courts simply do not see a role for judges in the
context of decisions about the built environment.
327
For example, in Nashville, Tennessee, white
members of the business community along with state highway officials decided to
direct highway I-40 through the black community in North Nashville, even though
such a route was indirect.
328
A federal lawsuit, brought by black and
white citizens with interests in North Nashville, failed to stop the
construction of the highway.
329
The plaintiffs raised due process and equal
protection claims, alleging “that construction of the highway segment as
planned will cause substantial damage to the North Nashville community,
erecting a physical barrier between this predominantly Negro area and other
parts of Nashville.”
330
However, the district court held that “[m]ost
of the evidence presented by plaintiffs goes to the wisdom and not to the
legality of the highway department’s decision.”
331
The court of appeals affirmed, finding no
denial of due process or equal protection in the selection of the route, and
instead determined that the “routing of highways is the prerogative of the
executive department of government, not the judiciary” and that the “minimizing
of hardships and adverse economic effects is a problem addressing itself to
engineers, not judges.”
332
One could view this as a prime example of a
court suggesting that architecture is not its business; the court failed to see
this architectural decision as a regulatory decision with which it should be
concerned. Rather, it saw the architectural decision as an issue for planners,
engineers, and the executive—rather than the legislative or judicial—branches
of government.
333
B. The
Jurisprudence of Exclusion Fails To Account for Architecture
1. Claims:
Laws That Could Be Used To Challenge Architectural Exclusion
In some instances, the barrier to striking down architectural
exclusion is not a public or court that fails to recognize the regulatory
nature of architecture, but rather the failure of our existing discrimination
and exclusion jurisprudence to address architectural exclusion adequately. (Indeed,
it is often insufficient for addressing legal forms of exclusion more
generally.
334
When analyzing exclusion through traditional legal methods, such as those
addressed in Part III, plaintiffs and courts tend to focus on a few common
provisions. If the government is the perpetrator of the alleged offensive
action, then plaintiffs rely on the Equal Protection Clause of the U.S.
Constitution
335
and, to a lesser extent, the Due Process Clause
336
and the Thirteenth Amendment.
337
When the
plaintiff’s claim is her attempt to secure property rights or status as a
homeowner or renter, it is also common to see claims relying on statutes,
338
including section 1982 of the Civil Rights Act of 1866
339
and the Fair Housing Act.
340
Plaintiffs often raise state constitutional claims as well.
341
These same claims arise in the context of architectural exclusion, with varying
degrees of success.
342
To the extent that courts have examined issues of
architectural exclusion,
343
they have
often done so in the context of transportation—road closures,
344
road design,
345
and the structure of transit systems.
346
As the cases below suggest, claims concerning architectural exclusion often
sound in equal protection and section 1982.
347
A successful equal protection claim requires a plaintiff to show that race was
a reason for an exclusionary decision. However, as Elise Boddie recognized,
“[t]he requirement that plaintiffs prove discriminatory intent to establish an
equal protection claim and cramped judicial interpretations of intent have
significantly narrowed the practical scope and significance of constitutional
law for redressing persistent racial inequality.”
348
Again, this is true not just in the case of architectural exclusion, but also
with respect to more traditional, legal forms of exclusion.
349
In the architectural exclusion cases discussed below,
successful plaintiffs tend to prevail on claims under section 1982.
350
To allege a violation of section 1982, a plaintiff must show that the conduct
of the defendants has impaired her property (or contract) interest.
351
Cases suggest that a plaintiff will be more likely to succeed if she can
demonstrate that she has been intentionally discriminated against,
352
although the Supreme Court has not ruled out the possibility that
discriminatory effect might be sufficient.
353
Section 1982 cases are explicitly about race as opposed to socioeconomic
status; a poor, white plaintiff would not have a claim under section 1982.
Further, the plaintiffs in the cases I examined are often members of racial or
ethnic minorities who own or lease property and who are challenging small-scale
examples of exclusionary architecture.
354
The line of section 1982 cases suggests that plaintiffs who are trying to bring
a claim based not on a right of property ownership or possession, but rather on
a right of access to or through a place (the broader concept of architectural
exclusion addressed in this Article), might have less success using the Civil
Rights Act; these plaintiffs would have to demonstrate, for example, that their
exclusion was a result of the place that they lived, and therefore resulted in
the impairment of a property or contractual interest.
355
2. Holdings:
Application of Relevant Law to Architectural Exclusion
The highest-profile case addressing architectural exclusion
was the Supreme Court’s analysis of a road closure in
City of Memphis v. Greene
356
In that case, the city of Memphis closed off a street that connected a white
neighborhood, Hein Park, to a black neighborhood, after white residents
petitioned for the road’s closure.
357
The given reasons for the street closing were to reduce traffic through the
white neighborhood; to increase safety for children in the neighborhood; and to
reduce “traffic pollution” like noise and trash.
358
This “traffic pollution” was allegedly coming from the adjacent black neighborhood.
359
While the white residents initially petitioned for the closure of four streets,
the city denied that request and determined that the closing of a single street
was sufficient to remedy the complaints.
360
The physical manifestation of the city’s decision to close the street involved
granting a portion of land to the property owners who lived at the far north
end of the street to be closed and erecting a barrier at “the precise point of
black-white neighborhood separation.”
361
So the owners of this new property also gained the right to exclude others,
including pedestrians, from the property (exclusion being an essential stick in
the bundle of rights), and the physical barrier that was erected was sufficient
to keep out motor vehicles.
362
The plaintiffs—individuals and civic associations who sued on
behalf of a class of black people who “own or stand to inherit property” in the
black neighborhood affected by the closing—raised section 1982 and 1983 and
Thirteenth and Fourteenth Amendment claims.
363
The Sixth Circuit found that the road closure constituted a badge of slavery in
violation of the Thirteenth Amendment and that the plaintiffs were entitled to
a remedy under section 1982.
364
That court
held that the street closing would negatively affect black members of the
community while benefiting white members; that the barrier between the white
and black neighborhoods would limit contact between those groups; that the
closure was racially motivated; and that evidence showed that the black homes
would depreciate in value.
365
The Supreme
Court overturned the Sixth Circuit, finding that the circuit court
made its decision based on factual determinations that were not supported by
the record,
366
and dismissed the plaintiffs’ claims.
367
The Court found that there was “no evidence that the closing
was motivated by any racially exclusionary desire.”
368
Rather, the Court acknowledged the legitimate tranquility and safety-related
traffic concerns espoused by City Council members and residents at the public
hearings.
369
Consequently, because it found discriminatory intent lacking, the Court quickly
dismissed the equal protection claim.
370
Turning to the section 1982 claim, the Court said that the
key inquiry concerned the relationship between the closing of the street and
the plaintiffs’ property interests. The Court noted that “if the street closing
severely restricted access to black homes,” that type of property infringement
would violate section 1982 “because blacks would then be hampered in the use of
their property.”
371
However, in the case at hand, the
only injury was that the black residents could not travel on one particular
public street and had to use others instead; this injury was not an “impairment
to the kind of property interests” protected by section 1982.
372
This reasoning suggests the statute would not necessarily assist those whose
rights of access through or to certain places were being hindered by the city
in a way that was unrelated to their ownership or possession of property, which
is often the case in the context of architectural exclusion.
373
Further, although the Court did not
tie this point directly to its section 1982 analysis, the majority also found
that, although the road closing would primarily affect black drivers, “the
extent of the inconvenience [was] not great.”
374
This suggests that the Civil Rights Act would protect those who owned or leased
property only if their access was severely restricted, and not if the access
restriction were slight.
Indeed, the
Greene
Court distinguished a similar Fifth Circuit case,
Jennings v. Patterson
,on
the grounds that the restriction in
Greene
was not “severe,” whereas the barricade in
Jennings
“severely” restricted the access of the black neighbors to their property.
375
In
Jennings
, the defendants, who were
white, constructed a barricade on the road on which their houses were located.
376
This barricade prevented their black neighbors from using the western half of
the road, which required them to travel an additional two miles to reach town.
377
In contrast, the sole white resident of that neighborhood was offered an
easement to pass through the barricade.
378
The city refused to remove the barricade.
379
The
Jennings
court held that
“[c]learly, these persons, because they are black, have been denied the right
to hold and enjoy their property on the same basis as white citizens,”
380
and so found a violation of various provisions of the Civil Rights Act,
including section 1982.
381
Justice Marshall, who was joined in dissent in
Greene
by Justices Brennan and Blackmun,
would have interpreted section 1982 more broadly and would have found a
violation based on the facts in
Greene
382
He stated: “[U]ntil today I would have thought that a city’s erection of a barrier,
at the behest of a historically all-white community, to keep out predominantly
Negro traffic, would have been among the least of [section 1982’s]
prohibitions.”
383
Unlike the
majority, Justice Marshall appears to take into account the racial geography at
play in Hein Park, considering “the street closure against the backdrop of the
protracted history of racial segregation and racial separateness in Memphis,”
as opposed to viewing the street closure as an isolated incident.
384
Finally, the majority found that the inconvenience that
resulted from the road closure did not measure up to the type of restraint on
liberty that the Thirteenth Amendment meant to eliminate.
385
The Court stated that “the fact that most of the drivers who will be
inconvenienced by the action are black” is of “symbolic significance,”
386
but failed to afford weight to that symbolism.
387
There are two problems with this line of reasoning. First, as Justice Marshall
noted, just because an act is symbolic does not mean that courts are free to
ignore it.
388
Further, the majority failed to recognize that the harm was in fact more than
merely symbolic and stigmatizing.
389
The road closure resulted in physical exclusion and directly regulated the
behavior of individuals who lived in the predominantly black neighborhood.
Whether the inconvenience of having to drive along another street is onerous or
not, it required a change in behavior. Justice Marshall seems to have
understood this point in a way that the majority did not.
Greene
also
suggests that the Court hewed to Blomley’s idea of “traffic logic,” wherein
traffic engineers and city administrators are primarily interested in traffic
flow and do not focus on the exclusionary effects of their decisions, though
exclusion might be the result.
390
Here, the majority
found that
[a]lmost any
traffic regulation—whether it be a temporary detour during construction, a
speed limit, a one-way street, or a no-parking sign—may have a differential
impact on residents of adjacent or nearby neighborhoods. Because urban
neighborhoods are so frequently characterized by a common ethnic or racial
heritage, a regulation’s adverse impact on a particular neighborhood will often
have a disparate effect on an identifiable ethnic or racial group.
391
There is a lot to unpack here. First,
the Court referred to examples of architectural exclusion as “traffic
regulation[s].”
392
In doing so,
the Court seemed to acknowledge (as did the plaintiffs who brought this
lawsuit) that design decisions can regulate, but the Court also downplayed
these forms of regulation and suggested that they were not something that the
Court needed to consider seriously. The majority used traffic logic to
characterize traffic restrictions as innocuous; it ignored the idea that these
restrictions might have pernicious undertones and failed to acknowledge a key
tenet of urban planning scholarship—that our built environment often
“embod[ies] a systematic social inequality.”
393
Further, the court ignored the underlying reasons that neighborhoods often
share a “common ethnic or racial heritage.”
394
When the majority states that “the inconvenience of the drivers is a function
of where they live and where they regularly drive—not a function of their
race,”
395
it forgets that the location where these individuals live and drive is
itself
a function of their race: the
white neighborhood at issue in this case was originally created to be an
exclusively white neighborhood through the use of racially restrictive
covenants.
396
This case presents an example of architectural exclusion that
was recognized by plaintiffs, who thought to bring a lawsuit, but it also
demonstrates that our current jurisprudence, as applied by the Court, is likely
insufficient to remedy the problem. In one sense, the majority’s holding in
Greene
follows a long line of
exclusion-by-law cases that fail due to a lack of intent and likely reflects
little more than the fact that the Supreme Court’s approach to discrimination
is generally more restrictive than it could be.
397
But at base,
Greene
is not merely an
example of a city using its laws to keep individuals out.
398
Rather, it is an example of a white community accomplishing its goal of keeping
out black neighbors through the use of an architectural device—the
barrier—rather than through the use of an impermissible legal device like a
racially restrictive covenant or express zoning ordinance.
399
Justice Marshall was able to see the exclusionary built
environment in a way that the majority of his colleagues on the Court could
not. He focused on “the significance of the barrier itself,” not just the
legitimate traffic and safety justifications for it.
400
Perhaps this is because he was “able to see through legal complexities and
grasp real human suffering underneath the abstraction.”
401
Or, as the first black Supreme Court Justice, perhaps he understood implicit
racial bias better than did his colleagues.
402
It is known that Justice Marshall believed his colleagues to be insensitive to
issues pertaining to racism: “‘“You can’t name one member of this Court who
knew anything about Negroes before he came to this Court.” Most of all, he
resented the unwillingness of some of his colleagues to embrace minority
preferences as a way of redressing past injustice.’”
403
Regardless, Justice Marshall’s views did not carry the day, and the majority
opinion set a precedent that makes architectural exclusion claims unlikely to
be successful in subsequent cases with similar facts.
For example, in a similar situation, the city of Roanoke,
Alabama, determined that a road had to be rerouted so that an industrial
facility could be built.
404
The
rerouting increased the travel distance between a black residential community
and other points in the city.
405
The
plaintiffs, black property owners, alleged substantive civil rights claims
under the Thirteenth Amendment, the Equal Protection Clause of the Fourteenth
Amendment, and section 1982. The Eleventh Circuit recognized that the city was
going through a period of racial unrest due to police brutality and economic
difficulties in the black community, but it upheld the district court’s finding
that under the totality of the circumstances, the plaintiff failed to prove any
discriminatory intent, which would have been required for the equal protection
claim. The court further held that because the case involved a road closing,
the plaintiff’s Thirteenth Amendment and section 1982 claims were directly
controlled by
Greene
and thus failed.
406
However, the Fifth Circuit determined that plaintiffs raised
valid claims under section 1982 in
Evans
v. Tubbe
407
In
Evans
, the plaintiff, who was
black, owned property that could be accessed only by a road that passed through
the defendant’s property.
408
The
plaintiff alleged that the defendant constructed a gate across his property and
gave a key to all of his white neighbors who required the road for access to
their properties, but not to the plaintiff.
409
According to the court, section 1982, which protects property interests, would
prohibit the defendant “from allowing whites but not blacks to traverse his
land to obtain access to their property.”
410
Therefore, in instances in which black plaintiffs own property,
and their access to or from that property is limited in a way that is different
from white residents’ access, they may have some success challenging
architectural barriers using section 1982. However, past successes have
generally occurred in situations involving black homeowners challenging
small-scale, individual road closures. Moreover, successful plaintiffs seem to
be able to easily prove intent to treat white residents differently (and better
than) black residents; justifications based on “traffic logic” are less
persuasive in cases such as these. In contrast, as is evidenced in the cases
below, the same approach might not be successful when plaintiffs are
challenging broader, larger infrastructural elements in their communities.
Importantly, and perhaps due in part to the failure to recognize architecture
as a regulatory tool, few of these types of cases have been heard and decided.
Further, it is unclear where and how courts will draw the line between
limitations on access that are “severe” and those that are merely
“inconveniences.”
411
One example of a challenge to a broader, allegedly
discriminatory infrastructure design falls into the line of cases in which
advocates for transit equity have attempted to challenge systems that more
heavily fund or subsidize forms of transit used by white people, while
underfunding those used by people of color. The only successful case of this
nature, which resulted in a consent decree,
412
is
Labor/Community Strategy Center v. Los
Angeles County Metropolitan Transportation Commission
(the Bus Riders Union
case).
413
In that case, the Union alleged that the Metropolitan Transportation Authority
(MTA) discriminated against the poor and people of color who lived in Los
Angeles County, in violation of the Fourteenth Amendment and the Civil Rights
Act.
414
The Union alleged that the MTA spent “a disproportionately high share of its
resources on commuter rail services, whose primary users were wealthy
non-minorities, and a disproportionately low share on bus services, whose main
patrons were low income and minority residents.”
415
Before the consent decree was entered, the district court certified a class of
“[a]ll poor minority and other riders of MTA buses who are denied equal
opportunity to receive transportation services because of the MTA’s operation
of a discriminatory mass transportation system.”
416
When architectural exclusion cases of this sort do not
settle, and move forward on constitutional claims, they face the same problems
that run-of-the-mill exclusion-by-law discrimination cases face—the difficulty
of proving intent. In an unpublished case,
Greer
v. City of Chicago
, the U.S. District Court for the Northern District of
Illinois dismissed the federal claims, including due process and equal
protection claims, brought by a plaintiff challenging the City of Chicago’s
placement of cul-de-sacs and a median.
417
The plaintiff alleged that the location of these architectural features was
chosen to separate the Jackson Park Highlands neighborhood from the rest of the
South Shore.
418
The opinion does not reveal the race or socioeconomic status of the plaintiff,
but the court held that the plaintiff failed to allege that the government
intentionally discriminated against him or treated him differently due to his
membership in a certain class.
419
Although the
Greer
opinion gives no details about the reasons for the architectural decisions,
newspaper articles hint at the intent behind the City’s challenged design: one
reporter suggested that Mayor Daley had plans to “block off residential streets
with cul-de-sacs and iron gates to reduce drive-by shootings and other crimes,”
420
while another stated that the
cul-de-sacs and traffic circles were installed in the area to reduce traffic
volume and speed.
421
While the intent behind the
architecture might legitimately relate to traffic calming and crime prevention,
422
another article asserts that these architectural devices were installed with
the more nefarious intent to exclude on the basis of race and class: “[T]he
barriers [were] designed to keep less well-off blacks on the other side of the
[subway] tracks. And . . . some of the well-to-do-blacks whose beautiful North
Beverly homes reflect their economic status are just as happy to let their
poorer brethren stay far away.”
423
Regardless of the actual intent, the
effect—as felt by members of the community—was that low-income
African-Americans would be “isolate[d]”
424
and “put . . . in a cage.”
425
The elected City Council—which handled many land-use issues
in the community—made these architectural decisions in conjunction with the
Chicago Department of Transportation.
426
In allowing those architectural elements to remain in place, the
Greer
court stated that “municipal
decisions regarding land use are given considerable deference, even under an
equal protection analysis,” citing
Memphis
v. Greene
427
This
statement implies that the court may have viewed
Greer
as a standard land-use case, not one that was more
specifically about architecture. Regardless, the plaintiff’s failure to prove
intentional discrimination was fatal to his equal protection claim.
428
In a similar case,
Thompson
v. Department of Housing and Urban Development
, plaintiffs, who were
African-American residents of public housing in Baltimore County, alleged that
the construction of a fence around the Hollander Ridge public housing project
was a violation of their Equal Protection rights.
429
They claimed that the fence was constructed to “physically . . . separate” the
black residents of Hollander Ridge from the adjacent white neighborhood,
Rosedale.
430
Many Rosedale residents were concerned about public safety and wanted
separation from the high levels of crime at Hollander Ridge;
431
the court noted that on the days when the elderly residents of the housing
project would receive social security and welfare checks, the high-rise area of
the complex was effectively an “open air drug and sex market.”
432
The court acknowledged that the fence did achieve a physical separation and
also recognized that the “troubled” relationship between the residents of
Hollander Ridge and Rosedale was due, at least in part, “to racial animus
harbored by some of the Rosedale residents.”
433
The court addressed the intent and motives of the local
elected officials, the local housing authority, and HUD, all of whom undertook
actions that resulted in construction of the fence. The court found that the
local elected officials were acting in response to the concerns of their constituents.
However, the court did not believe that those officials had discriminatory
motives for seeking the fence, although “they were responding to a group of
constituents, some of whom did have such motives.”
434
The court further found that the housing authority and HUD were both acting for
legitimate nondiscriminatory reasons.
435
Thus, the court held that the plaintiffs could not make out a claim of
intentional discrimination.
436
Synthesizing these cases and considering them alongside the
more traditional methods of exclusion discussed in Part III—racial zoning,
racially restrictive covenants, and exclusionary zoning—it appears that the
judicial treatment of different methods of exclusion will depend on a number of
factors. These include whether the constraint is being imposed on a legal right
of access or a physical right of access; whether the constraint is being put in
place by a governmental actor or a private actor; the extent to which the
method is a legacy issue or ongoing; and whether it was undertaken with an
overtly racially discriminatory purpose, merely has discriminatory or
exclusionary effects, or whether there were mixed motives. The bottom line is
that (a) few of these cases have even been brought due to a failure to consider
architecture as regulation; and (b) those that have been brought face the same
types of challenges that more traditional methods of exclusion, such as
exclusionary zoning, face in the courts.
V. problems
and solutions
A. Legacy
Problems and the Enduring Nature of Architecture
There is some question as to whether the problems discussed
in this Article are merely legacy problems (that is, present physical
manifestations of policies that are now defunct), problems that are still
ongoing, or a bit of both. Answering this question is important not only to
understand the severity of the problem more fully, but also for the purposes of
considering appropriate solutions. Certainly, many of the examples of
architectural exclusion discussed herein are associated with the urban renewal
and highway projects of the 1950s and 1960s. Those projects are no longer being
carried out and are now viewed by many as mistakes.
437
Additionally, while most forms of exclusion by law have been declared illegal
and the laws repealed, the architecture built in response to those laws remains
in place. That said, exclusionary zoning is still quite common, and the
exclusionary placement of transit stops and transit infrastructure is ongoing.
438
Even if architectural exclusion is predominantly a legacy
problem, there is still value in pointing out historical issues, especially
when they are issues that constrain present behavior and of which the law does
not take account. Further, even if some more progressive cities and planning
departments now consider some of these issues in making decisions about the
built environment, the legacies of the past continue to regulate in the
present.
439
Architecture is enduring; the layout of cities is hard to change.
440
As Eduardo M. Peñalver notes, “The durability of land-use decisions’
consequences and the finite quantity of land mean that the decisions that
current owners make about how to use their land will reverberate for
generations.”
441
Our roads, bridges, and structures are built in place and made to withstand
time and the elements; removal and redevelopment are very expensive.
442
And while courts and legislators typically eliminate old laws upon deciding
that they are no longer valid—such as the eradication of racial zoning and the
removal of old racially restrictive covenants from chains of title—it is much
more difficult to remove exclusionary architecture from the built environment.
This is one reason that many courts do not require people to tear down
structures that were constructed in violation of ordinances; violators often
pay a fine instead. The built environment continues to regulate; as a legal matter,
nothing is currently
forcing
municipalities to confront the continuing harms that result from those past
architectural decisions. This is a problem because “there are no meaningful
lines between that which the state tolerates, that which it encourages, and
that which it effectuates.”
443
Further, these decisions are
problematic because public infrastructure and public spaces are such important
and dominant features of the built environment.
444
There are a number of reasons that even legacy effects of the
exclusionary built environment are problematic and should be ameliorated.
First, as many commentators have noted, a person who is physically excluded
from a place often feels stigmatized and degraded;
445
preventing stigma was key to the Court’s holding in
Brown v. Board of Education
446
Indeed, a key element of the civil rights movement was to further and promote
“unencumbered movement” as an important right.
447
When certain groups of people are
intentionally kept out of, or made to have a hard time accessing, certain parts
of a community, it limits their freedom and harms their dignity.
448
Similarly, extensive research has explored the “geography of
opportunity,” which suggests that the place in which a person grows up and
lives has a dramatic impact on her future earning ability and educational
attainment.
449
The mechanisms through which
neighborhoods have an impact on future outcomes for their residents are much
debated, but part of the effect likely results from the lack of political power
and access to public resources and institutions that often come with residence
in a low-income neighborhood.
450
The
geography of opportunity provides insight into the social costs of segregation
in housing and the built environment, which tends to heavily affect racial
minorities; their exclusion “engenders their absence from valuable social
networks.”
451
Finally, because the built environment exists as a result of
direct decisions by policymakers who are employed by the state (or
municipality), it is effectively the state that has created the exclusion. As Reva
Siegel has reminded us, on an antisubordination conception of equal protection
“it is wrong for the state to engage in practices that enforce the inferior
social status of historically oppressed groups.”
452
By failing to actively alleviate the continuing harms caused by the
exclusionary environment, the state allows those practices to continue.
However, because there is at present no affirmative duty for the state to act
to remove legacy exclusionary architecture, there is likely no current state
action that could be challenged in court.
Although no laws currently force local governments to
reconsider or reconfigure their exclusionary infrastructures, cities and states
do have the opportunity, and perhaps even the incentive, to significantly alter
the built environment and remedy some of the impacts of architectural exclusion.
The nation’s infrastructure is in substantial decline and in need of major
revitalization; many of the roads and bridges in the United States were put in
place over fifty years ago, and these systems are becoming overwhelmed or worn
out.
453
Moreover, there are substantial economic incentives to revitalize the country’s
failing infrastructure, and numerous initiatives have been undertaken in recent
years to address these issues.
454
For example,
more than $91 billion of capital is invested annually to improve the nation’s
highways and roads.
455
Consequently, there exists an opportunity for localities to address the impacts
of architectural exclusion as part of the much-needed rebuilding and repairing
of outdated infrastructure.
Without large-scale rebuilding, architecture and the built
environment are durable and hard to change. Therefore, it will likely be more
difficult to eradicate existing exclusionary infrastructure than to prevent the
creation of future barriers to access, assuming that citizens, city planners,
elected officials, judges, and lawmakers begin to take the ideas expressed here
into consideration. The solutions proposed below will discuss ways to alleviate
the harms of existing architectural exclusion and ways to prevent it in the
future.
B. Proposed
Solutions: Courts and Legislators
1. Judicial
Solutions Are Unlikely To Be Successful
Courts could take action to address the harms associated with
architectural exclusion. However, as was detailed above, current civil rights
law does not show much promise for architectural exclusion claims. It is
possible that the courts could change course by adopting a more modernized or
progressive view of the Equal Protection Clause, or by imposing a higher level
of scrutiny in cases that involve architectural exclusion claims. Courts could
also issue injunctive relief if evidence of architectural exclusion is severe.
This would require a locality to modify the built environment to remove
exclusionary barriers to access.
However, this is all quite unlikely given the current
political and judicial climate. Recall that most courts do not even find fault
with exclusionary zoning, which is a form of regulation by law.
456
Some commentators have therefore suggested that the exclusionary zoning problem
is one that should be solved by legislatures rather than courts. For example,
Daniel R. Mandelker concluded that “the federal courts should not expansively
read the fourteenth amendment to require a wholesale judicial review of
exclusionary zoning practices absent proof of discriminatory racial intent.
Congressional, rather than judicial, correction of racially segregative zoning
is urged as a more attractive alternative.”
457
Perhaps the same could be said for exclusionary architecture: this is a problem
that local (or state) governments should attack, not the courts. Those legislative
or administrative solutions could force consideration of architectural
exclusion in new design, could be applied retroactively to force removal of
exclusionary architecture in some cases, and could provide a statutory cause of
action in the event that decisions are made in violation of their mandates.
However, even a statutory solution would require legislators and administrative
staff to take seriously the idea of architecture as regulation.
2. Legislative
Solutions Carry Some Promise
Elected officials at the federal, state, or local level could
take actions that would alleviate some of the harms imposed by the exclusionary
built environment. These solutions could address legacy effects of exclusionary
architecture by forcing reformation of certain existing discriminatory
infrastructure,
458
requiring
consideration of architectural exclusion in the funding or construction of new
infrastructure, and providing a route for potential plaintiffs to sue in the
future if a locality fails to comply with the new requirements set forth in the
law. This legislative solution could be modeled on similar statutory requirements
in related areas, including environmental law and disability law.
C. An
Architectural Bent on an Environmental Impact Statement
When undertaking large projects, administrators are often
required to conduct a detailed environmental review pursuant to state or
federal law.
459
This analysis could be expanded to include consideration of a proposed
project’s impacts on the exclusion of certain underrepresented groups,
including poor people and people of color.
460
Indeed, one could arguably read some existing state environmental statutes to
incorporate those concerns into an analysis of a proposed project’s social
impacts, including impacts on neighborhood character and socioeconomics.
461
This approach would allow actors to concern themselves with the exclusionary
effects of architectural design choices rather than with the motivations
underlying those choices.
A similar approach has been used to address environmental
justice concerns: President Clinton issued an executive order
462
calling for numerous federal agencies to ensure that the environmental effects
of their policies and programs would not disproportionately affect minorities
and the poor.
463
However, the executive order is
non-binding and legally unenforceable.
464
Accordingly, agencies are not forced to give any particular weight to
environmental justice concerns and their effects in their analysis for
rulemaking.
465
The executive order “relies entirely on internal enforcement, does not create a
right to sue the government or allow for judicial remedies when agencies fail
to comply with the executive order . . . [resulting] in a major weakness of the
executive order . . . [which] is possibly the principal reason it has not had a
greater impact.”
466
An amendment
to the text of the environmental review statutes requiring this kind of
exclusionary analysis would have a stronger impact, especially in states like
California and New York, where state-level Environmental Policy Acts require
mitigation of significant environmental effects.
467
That said, an architectural exclusion analysis with a mitigation obligation
might make infill development even more difficult than it already is; there is
a risk that such a requirement could be used defensively by opportunistic
opponents who want to avoid change (which might result in further entrenching
an exclusive status quo).
468
D. An
Architectural Inclusion Version of the Americans with Disabilities Act
In considering the legal regulation of exclusion, it is
useful to make a comparison to the disability rights movement, which “pointed
out the countless ways in which machines, instruments, and structures of common
use—buses, buildings, sidewalks, plumbing fixtures, and so forth—made it
impossible for many handicapped persons to move about freely, a condition that
systematically excluded them from public life.”
469
Indeed, the disability rights literature echoes many of the same concerns
raised in this Article. For example, speaking of disabled individuals, Robin
Paul Malloy stated, “in order to be a full participant in one’s community, one
must be able to enjoy reasonable access to the spaces and places that make up
civic life.”
470
This reasoning should extend beyond access for individuals with disabilities to
all individuals, including poor people and people of color.
471
A statute like the Americans with Disabilities Act (ADA) aimed at architectural
exclusion would seem to make sense: currently the ADA prohibits the
construction of a separate entrance for disabled individuals,
472
but the city of New York is allowing developers to construct apartment buildings
with “poor doors”—a separate entrance for low-income tenants in mixed-income
buildings.
473
Despite these similarities, there are important differences
between the disability rights movement and the ideas behind architectural
exclusion. First, there is general consensus that individuals with disabilities
were excluded by infrastructure that resulted more from “long-standing neglect
than from anyone’s active intention.”
474
Indeed, the ADA does not require intent to find discrimination.
475
This distinction between neglect and intent raises important questions. For
example, why does it seem that the law is more protective in the context of
neglect, which is less malicious? Or is it not so much the intent versus
neglect distinction, but rather that the law cares more about disabled
individuals than about racial minorities or poor people? Is this a function of
who has a better ability to organize? Or is it because many white, wealthy
people have disabled individuals in their own families? Second, many examples
of architectural exclusion occur at a citywide, infrastructural scale, while
much of the ADA’s work has resolved problems within individual buildings.
Similarly, architectural exclusion and the barriers to access it entails are
somewhat more amorphous than barriers to access for disabled individuals, and
therefore perhaps harder to correct. Finally, while the Court in
Tennessee v. Lane
found an enforceable
right of access (in that case, access to the courthouse) accorded to a
protected class (people with disabilities) under the ADA,
476
architectural decisions often exclude poor people, who are not a protected
class.
477
Despite these differences, adopting a similar remedial
approach could be useful. The ADA requires both retrospective and prospective
solutions to exclusionary environments.
478
Generally, the ADA places the greatest burden on those building new
construction, followed by those who are making alterations to existing
structures.
479
Existing structures that are not undergoing alterations are not completely
grandfathered under the ADA; although a building owner or tenant is not
required to bring a building up to ADA standards simply because she owns or
occupies the building, she must remove accessibility barriers where doing so is
“readily achievable.”
480
A similar
approach could be used in the context of architectural exclusion. However, it
is important to note that there is widespread non-compliance with the
retrofitting provisions of the ADA.
481
As a result, the ultimate success of an architectural exclusion statute with
regard to legacy issues, as opposed to just new developments, is unclear.
Conclusion
Viewing the built environment through a regulatory lens, one
may begin to see the world differently. A bridge does not exist merely to
transport pedestrians or motorists across a body of water or over a road, but
also to deposit those pedestrians and motorists into certain areas and not
others. If a law were to require certain individuals to take one exit but not
another, we might question its intent or its legality, but if a decision-maker
creates an architectural feature that has the same effect, it is often viewed
as innocuous. This Article seeks to raise awareness and foster discussion about
the regulatory nature of architecture and its role in dividing (or, more
positively, bringing together) people within and across communities. Just as
educational campaigns have been used to shift norms,
482
this Article aims to expand the way that citizens, courts, legislators,
administrators, and legal scholars consider regulation through architecture.
Once the issue of architectural exclusion is brought to a person’s attention,
she will see it in her own community
483
and can begin taking action to fight against its effects in the future.Zoning ordinances that explicitly
divided cities along racial lines were struck down many years ago, but walls
and roads continue to divide cities along racial lines. Are these any less
pernicious?
Robert A Caro
The Power Broker: Robert Moses and the Fall of New York
571 (1974);
Pierre Christin…
Robert A Caro
The Power Broker: Robert Moses and the Fall of New York
571 (1974);
Pierre Christin & Olivier Balez, Robert Moses: The Master Builder of New York City
(2014); Paul Goldberger,
Robert Moses, Master Builder, Is Dead at 92
N.Y. Times
, July 30, 1981,
[http://perma.cc/5EAH-29NE].
These offices included “New York City Parks Commissioner, head of the State Parks Council, head …
These offices included “New York City Parks Commissioner, head of the State Parks Council, head of the State Power Commission and chairman of the Triborough Bridge and Tunnel Authority.” Goldberger,
supra
note 1.
Langdon Winner,
Do Artifacts Have Politics?
, 109
Daedalus
121, 123 (1980);
see also
Caro
supra
no…
Langdon Winner,
Do Artifacts Have Politics?
, 109
Daedalus
121, 123 (1980);
see also
Caro
supra
note 1, at 318.
Caro
supra
note 1, at 318-19;
see also
Phillip Lutz,
Where Has the Northern State Gone?
N.Y. Tim…
Caro
supra
note 1, at 318-19;
see also
Phillip Lutz,
Where Has the Northern State Gone?
N.Y. Times
, Sept. 11, 1994,
[http://perma.cc/H6ST-TQAL] (“[A] top Moses aide at the Long Island State Park Commission, Sidney M. Shapiro, . . . acknowledged that the bridges had been designed to keep out buses.”).
Steven Paul McSloy,
Breaking the Power of the Power Brokers (Closing Remarks)
, 9
St. John’s J. L…
Steven Paul McSloy,
Breaking the Power of the Power Brokers (Closing Remarks)
, 9
St. John’s J. Legal Comment.
669, 672-73 (1994) (“[T]he bridges spanning the parkway are very low. . . . [T]he bridges were deliberately designed that way in order to prevent buses of city dwellers, and particularly African-Americans, from reaching the Island’s fabled beaches.”).
See
Jason Henderson,
Secessionist Automobility: Racism, Anti-Urbanism, and the Politics of Automob…
See
Jason Henderson,
Secessionist Automobility: Racism, Anti-Urbanism, and the Politics of Automobility in Atlanta, Georgia
, 30
Int’l J. Urb. & Regional Res.
293, 297-98 (2006) (noting that the average Atlantan drives 30.5 miles each day despite the existence of a subway system).
See id.
at 298-99 (noting that the “racialized animosity towards transit affectively [sic] produ…
See id.
at 298-99 (noting that the “racialized animosity towards transit affectively [sic] produced full automobile dependency for most Atlantans” and that county referenda to join MARTA “failed under a cloud of racialized rhetoric and considerable movements of middle-class whites away from proximity to blacks and to separate majority white suburbs”); s
ee also Lawsuit Seeks Dissolution of Dunwoody, Sandy Springs, Johns Creek, Milton, Chattahoochee Hills
Atl. J.-Const.
, Mar. 29, 2011,
[http://perma.cc/WF87-PRJA] (noting that, according to the 2010 Census, the majority of residents who live in the two counties that make up Atlanta are black, but the majority of residents in the northern suburban areas within those counties are white).
See infra
notes 118-119 (discussing reliance on public transit by the poor and people of color).
See infra
notes 118-119 (discussing reliance on public transit by the poor and people of color).
City of Memphis v. Greene, 451 U.S. 100, 102-05 (1981); Brief for Petitioner at 8-9,
Greene
, 451 U…
City of Memphis v. Greene, 451 U.S. 100, 102-05 (1981); Brief for Petitioner at 8-9,
Greene
, 451 U.S. 100 (No. 79-1176), 1980 WL 339373, at *8-9 (noting that City Council approval took place on January 29, 1974).
10
Greene
, 451 U.S. at 104.
Greene
, 451 U.S. at 104.
11
Id.
at 119, 129.
Id.
at 119, 129.
12
Id.
at 138 (Marshall, J., dissenting). He was joined in this dissent by Justices Brennan and Black…
Id.
at 138 (Marshall, J., dissenting). He was joined in this dissent by Justices Brennan and Blackmun.
13
Id.
at 136 (Marshall, J., dissenting).
Id.
at 136 (Marshall, J., dissenting).
14
Prominent legal scholar and critical race theorist Charles Lawrence agreed with Justice Marshall. …
Prominent legal scholar and critical race theorist Charles Lawrence agreed with Justice Marshall. Writing of
Memphis v. Greene
, he states:
[T]he peace and quiet of a white neighborhood has been weighed against the stigmatization of blacks. The decision to build the barrier issues the statement that white tranquility is more important than black pride. In the contextual reality of Memphis, the message is as clear as if the declaration were painted on the wall itself.
Charles R. Lawrence III,
The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism
, 39
Stan. L. Rev
. 317, 364 (1987).
15
See infra
Part III (discussing equal protection analysis in the context of exclusionary zoning).
See infra
Part III (discussing equal protection analysis in the context of exclusionary zoning).
16
See infra
Part I.A (reviewing urban planning literature).
See infra
Part I.A (reviewing urban planning literature).
17
See
Norman Williams, Jr.,
Planning Law and Democratic Living
, 20
Law & Contemp. Probs
. 317, 317 (1…
See
Norman Williams, Jr.,
Planning Law and Democratic Living
, 20
Law & Contemp. Probs
. 317, 317 (1955) (describing planning as “the process of consciously exercising rational control over the development of the physical environment, and of certain aspects of the social environment, in the light of a common scheme of values, goals, and assumptions”).
18
See, e.g.
, Thomas W. Merrill,
Property and the Right To Exclude
, 77
Neb. L. Rev.
730 (1998) (argui…
See, e.g.
, Thomas W. Merrill,
Property and the Right To Exclude
, 77
Neb. L. Rev.
730 (1998) (arguing that exclusion is the “
sine qua non
” of property rights). Some would argue that certain forms of exclusion have beneficial goals and productive ends. For example, the fence that allows children to play near a busy street excludes the children from that street, but does so for reasons that further their health and safety.
19
Lawrence Lessig,
The New Chicago School
, 27
J. Legal Stud.
661, 662-63 (1998).
Lawrence Lessig,
The New Chicago School
, 27
J. Legal Stud.
661, 662-63 (1998).
20
Lawrence Lessig, Commentary,
The Law of the Horse: What Cyberlaw Might Teach
, 113
Harv. L. Rev.
50…
Lawrence Lessig, Commentary,
The Law of the Horse: What Cyberlaw Might Teach
, 113
Harv. L. Rev.
501, 507 (1999).
21
See
Neal Kumar Katyal,
Architecture as Crime Control
, 111
Yale L.J
. 1039, 1041 (2002) (defining …
See
Neal Kumar Katyal,
Architecture as Crime Control
, 111
Yale L.J
. 1039, 1041 (2002) (defining “architecture” broadly as “the full range of activities, from building design to city planning, with which architects are concerned”).
22
Lee Tien,
Architectural Regulation and the Evolution of Social Norms
, 7
Yale J.L. & Tech
. 1, 2 (20…
Lee Tien,
Architectural Regulation and the Evolution of Social Norms
, 7
Yale J.L. & Tech
. 1, 2 (2004-2005).
23
See infra
Part IV.
See infra
Part IV.
24
The Article refers to this as “legal exclusion” or “exclusion by law.”
See infra
Part III (discuss…
The Article refers to this as “legal exclusion” or “exclusion by law.”
See infra
Part III (discussing methods of legal exclusion).
25
See infra
Part III.B (discussing exclusion through threats of violence).
See infra
Part III.B (discussing exclusion through threats of violence).
26
The Article refers to this as “architectural exclusion,” which is a form of physical exclusion.
Se…
The Article refers to this as “architectural exclusion,” which is a form of physical exclusion.
See infra
Part II (providing examples of architectural exclusion).
27
See, e.g.
, Kim Bell,
Metro’s Bench Dividers at Bus Shelters Seen by Some as Slap at Homeless
St. …
See, e.g.
, Kim Bell,
Metro’s Bench Dividers at Bus Shelters Seen by Some as Slap at Homeless
St. Louis Post-Dispatch
, Dec. 18, 2013,
[http://perma.cc/VEN4-UY6M]; Michael Van Sickler,
City Hopes Bench Armrests Will Deter Homeless
Lakeland Ledger
(Fla.)
Nov. 27, 1997, at B1,
[http://perma.cc/XJP6-TP2C] (“The city is ordering 28 steel armrests for Munn Park benches in an attempt to keep homeless people from sleeping in the park.”).
28
See
Langdon Winner,
Do Artifacts Have Politics?
, 109
Daedalus
121, 123 (1980) (“In our accustome…
See
Langdon Winner,
Do Artifacts Have Politics?
, 109
Daedalus
121, 123 (1980) (“In our accustomed way of looking at things like roads and bridges we see the details of form as innocuous, and seldom give them a second thought.”);
see also
Bernward Joerges,
Do Politics Have Artefacts?
, 29
Soc. Stud. Sci.
411, 412 (1999) (describing Winner’s observation that “certain details of form in bridges, streets and roads are habitually taken to be meaningless”).
29
Winner,
supra
note 28, at 124 (discussing Robert Moses);
see also
Leslie Kanes Weisman, Discrimina…
Winner,
supra
note 28, at 124 (discussing Robert Moses);
see also
Leslie Kanes Weisman, Discrimination by Design: A Feminist Critique of the Man-Made Environment
35 (1992) (“[O]ur collective failure to notice and acknowledge how buildings are designed and used to support the social purposes they are meant to serve—including the maintenance of social inequality—guarantees that we will never do anything to change discriminatory design.”). A well-known example of this concept is Brasilia, the capital of Brazil, which was designed to be a highly stylized, modernist projection of the country’s future.
See
James C. Scott, Seeing Like a State: How Certain Schemes To Improve the Human Condition Have Failed
117-32 (1999) (describing the monotonous and anonymous nature of life in highly planned Brasilia, which lacks a vibrant street life and informal places for people to gather).
30
But see infra
Part I.B (providing a review of the existing legal literature addressing physical ar…
But see infra
Part I.B (providing a review of the existing legal literature addressing physical architecture as regulation). Legal scholarship addressing disability discrimination has focused on environments designed in such a way that they are not accessible to disabled individuals. However, this literature and relevant court cases suggest that exclusion of disabled individuals is generally due to inattention, rather than an animus toward or intent to exclude those individuals.
See, e.g.
, Alexander v. Choate, 469 U.S. 287, 295-96 (1985) (noting that the ADA was needed because disabled individuals had been neglected); Rolf Jensen & Assocs. v. Eighth Judicial Dist. Ct., 282 P.3d 743, 747 (Nev. 2012) (noting that Congress “specifically designed the provisions of the ADA to prevent discrimination stemming from neglect and indifference”). As this Article will explain, architectural exclusion is often the result of an intentional decision to exclude.
31
Katyal,
supra
note 21, at 1042 (noting that “the instinctive reaction of many lawyers is to focu…
Katyal,
supra
note 21, at 1042 (noting that “the instinctive reaction of many lawyers is to focus on legal rules, without thinking about the constraint of physical space”).
32
In the legal arena, “regulation” is generally defined as “[c]ontrol over something by rule o…
In the legal arena, “regulation” is generally defined as “[c]ontrol over something by rule or restriction.”
Black’s Law Dictionary 1475 (
10th ed.
2014).
These rules or restrictions are most often laws. Regulations are often discussed in the context of administrative law, where the term is defined as “[a]n official rule or order, having legal force, usu[ally] issued by an administrative agency.”
Id.
see also
Administrative Procedure Act, 5 U.S.C. § 551(4), (5) (2014) (defining a “rule” as “an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy” that is created through “rule making”);
id.
§ 551(6) (defining “order” as any authoritative agency action other than a rule created through an adjudication);
John F. Manning & Matthew C. Stephenson, Legislation and Regulation 583-88 (2010) (
discussing regulations promulgated under the Administrative Procedure Act).
33
Law “directs behavior in certain ways” and threatens individuals with sanctions if they do not…
Law “directs behavior in certain ways” and threatens individuals with sanctions if they do not comply. Lessig,
supra
note 19, at 662. Further, the legal process is generally thought to entail legitimacy, and one can easily discover which entity created a given law and the process through which it did so. Tien,
supra
note 22, at 11-12 (noting that the law is perceived as legitimate and “that legitimacy and public deliberation are integral to our notion of law”).
34
As other scholars have argued, norms constrain behavior through community enforcement, not through…
As other scholars have argued, norms constrain behavior through community enforcement, not through some official rule or source.
See, e.g.
, Lessig,
supra
note 19, at 662;
see also
Richard A. Posner,
Social Norms and the Law: An Economic Approach
, 87
Am. Econ. Rev.
365, 365 (1997) (defining a norm as an unofficial rule).
35
Lessig,
supra
note 19, at 663 (“Markets regulate through the device of price.”).
Lessig,
supra
note 19, at 663 (“Markets regulate through the device of price.”).
36
In practice, it is hard to separate these categories from one another.
Id.
at 662-63.
See also
Sar…
In practice, it is hard to separate these categories from one another.
Id.
at 662-63.
See also
Sarah B. Schindler,
Banning Lawns
, 82
Geo. Wash. L. Rev.
394, 425 & nn. 212-13 (2014).
37
See, e.g.
William A. Fischel, The Homevoter Hypothesis: How Home Values Influence Local Governmen…
See, e.g.
William A. Fischel, The Homevoter Hypothesis: How Home Values Influence Local Government Taxation, School Finance, and Land-Use Policies (2001)
; R.H. Coase,
The Problem of Social Cost
, 3
J.L. & Econ.
1 (1960); Jon Elster,
Social Norms and Economic Theory
, 3
J. Econ. Perspectives
99 (1989); Cass R. Sunstein,
Social Norms and Social Roles
, 96
Colum. L. Rev
. 903 (1996).
38
See
sources cited
supra
note 32 (addressing common definitions of “regulation”).
See
sources cited
supra
note 32 (addressing common definitions of “regulation”).
39
See
Winner,
supra
note 28, at 124 (“Histories of architecture, city planning, and public works c…
See
Winner,
supra
note 28, at 124 (“Histories of architecture, city planning, and public works contain many examples of physical arrangements that contain explicit or implicit political purposes.”);
see also
Lawrence J. Vale, Architecture, Power & National Identity
3 (1992) (“Throughout history and across the globe, architecture and urban design have been manipulated in the service of politics.”); Allyn West,
Could Glenn Beck Bring Independence to Texas?
Swamplot
(Jan. 29, 2013, 3:00 PM),
[http://perma.cc/G2HG-BPH6] (“‘If you really wanna [sic] pass on the secrets, if you really wanna pass on truth, embed it in architecture.’”).
40
Dolores
Hayden, Redesigning the American Dream: Gender, Housing & Family Life
(1984) (discussing t…
Dolores
Hayden, Redesigning the American Dream: Gender, Housing & Family Life
(1984) (discussing the role of home design in furthering stereotypes about a woman’s “place”);
Edward W Soja, Seeking Spatial Justice
46 (2010) (stating his aim to “heighten awareness of the powerful grip on our lives that comes from the political organization of space as it is imposed from above as a form of social control and maintained by the local state, the legal system, and the land market”);
Vale
supra
note 39
, at 9 (“[D]ecisions about urban design may also foster mutually reinforcive alienation and empowerment by magnifying hierarchies in the outdoor public realm.”);
Katyal,
supra
note 21, at 1045 (arguing that “[t]here is no form of neutral architecture.”)
Of course, some may disagree. For example, Langdon Winner wrote, “To discover either virtues or evils in aggregates of steel, plastic, transistors, integrated circuits, and chemicals seems just plain wrong, a way of mystifying human artifice and of avoiding the true sources, the human sources of freedom and oppression, justice and injustice. Blaming the hardware appears even more foolish than blaming the victims when it comes to judging the conditions of public life.” Winner,
supra
note 3, at 122.
41
See, e.g.,
Alexandra Lange, Writing About Architecture: Mastering the Language of Buildings and Ci…
See, e.g.,
Alexandra Lange, Writing About Architecture: Mastering the Language of Buildings and Cities
112-13 (2012);
see also
The Psychological Dimension of Architectural Space
, 46
Progressive Architecture
159 (Apr. 1965) (“The history of architecture contains innumerable examples of architectural spaces that have been consciously manipulated to draw people together or to disperse them.”).
42
Rober Mier,
Some Observations on Race in Planning
, 60
J. Am. Plan. Ass’n
235, 236, 239 (1994) (emp…
Rober Mier,
Some Observations on Race in Planning
, 60
J. Am. Plan. Ass’n
235, 236, 239 (1994) (emphasis omitted).
43
See, e.g.
id.
at 235-36 (“Race is a powerful aspect of most planning situations in urban areas,…
See, e.g.
id.
at 235-36 (“Race is a powerful aspect of most planning situations in urban areas, yet it too often is the
last
way a problem, or especially an opportunity, is framed. . . . [R]ace should be the first way to frame a local planning or development problem.”) (emphasis omitted).
44
Nicholas Blomley,
Civil Rights Meet Civil Engineering: Urban Public Space and Traffic Logic
, 22
Ca…
Nicholas Blomley,
Civil Rights Meet Civil Engineering: Urban Public Space and Traffic Logic
, 22
Can. J.L. & Soc.
55 (2007);
see also
Nicholas Blomley, Rights of Passage: Sidewalks and the Regulation of Public Flow
(2011) (suggesting that the layout of sidewalks is a form of regulation that shapes interactions in society). It is, of course, possible that some planners recognize—or even intend—the likely exclusionary effects of their architectural decisions, yet make choices that will result in those outcomes. In the past, decisions made with the intent to exclude could be explained by prevailing norms.
See infra
Part III.B (discussing social norms and racism in the United States). Currently, they may be explained, in part, by Bill Fischel’s Homevoter Hypothesis, which suggests that most local government decisions can be understood by considering how a homeowner would want a municipal official to act or vote in order to maximize the homeowner’s most valuable asset—her home.
See
Fischel,
supra
note 37;
see also
Vicki Been et al.,
Urban Land-Use Regulation: Are Homevoters Overtaking the Growth Machine?
, 11
J. Empirical Legal Stud.
227 (2014) (finding that the Homevoter Hypothesis applies in urban as well as suburban locations). Wealthy property owners have sufficient power, education, and organizational ability to convince their elected officials to vote in ways that will protect their property values.
Id.
Thus, in examining why a city planner or elected official would place infrastructure in an exclusionary way, one should consider how a homeowner would view the impact of the infrastructure decision on her property value. To the extent that property values are increased by racially or socioeconomically homogenous neighborhoods, this may be the very result that wealthy, white homeowners desire.
See infra
Part III.A (discussing examples of wealthy communities desiring to keep out those they view as undesirable).
45
See
Catherine L. Ross & Nancey Green Leigh,
Planning, Urban Revitalization, and the Inner City: An…
See
Catherine L. Ross & Nancey Green Leigh,
Planning, Urban Revitalization, and the Inner City: An Exploration of Structural Racism
, 14
J. Plan. Literature
367, 379 (2000) (“The planning field is not alone in its culpability for failed revitalization efforts, but the misappropriation of its tools has, perhaps more than in other fields, made it a facilitator of social exclusion and economic isolation.”).
46
But see
Katyal,
supra
note 21 (describing the use of architecture to control crime); Norman W. Spa…
But see
Katyal,
supra
note 21 (describing the use of architecture to control crime); Norman W. Spaulding,
The Enclosure of Justice: Courthouse Architecture, Due Process, and the Dead Metaphor of Trial,
24
Yale J.L. & Human
. 311, 311 (2012) (describing the relationship between “justice and the space in which it operates,” and highlighting a dearth of analysis of physical space and courthouse architecture in the context of “[t]heories of justice”).
47
See
Katyal,
supra
note 21, at 1044;
see also
James M. Anderson et al.,
Reducing Crime by Shaping t…
See
Katyal,
supra
note 21, at 1044;
see also
James M. Anderson et al.,
Reducing Crime by Shaping the Built Environment with Zoning: An Empirical Study of Los Angeles
, 161
U. Pa. L. Rev
. 699, 703 (2013) (noting that cities can reduce crime by shaping the built environment, and recognizing that “[t]his idea has received considerably more attention in the urban planning literature than in legal scholarship.”).
48
See infra
note 57.
See infra
note 57.
49
Richard H Thaler & Cass R. Sunstein
Nudge: Improving Decisions About Health, Wealth, and Happines…
Richard H Thaler & Cass R. Sunstein
Nudge: Improving Decisions About Health, Wealth, and Happiness 3
(2008) (“As good architects know, seemingly arbitrary decisions . . . will have subtle influences on how the people who use the building interact.”).
50
Lessig,
supra
note 20, at 507-08. Katyal discusses additional forms of regulation through architec…
Lessig,
supra
note 20, at 507-08. Katyal discusses additional forms of regulation through architecture, or design solutions to problems:
Fast-food restaurants use hard chairs that quickly grow uncomfortable so that customers rapidly turn over; elevator designers place the numerals and floor indicator lights over people’s heads so that they avoid eye contact and feel less crowded; supermarkets have narrow aisles so that customers cannot easily talk to each other and must focus on the products instead.
Katyal,
supra
note 21, at 1043.
51
See
Katyal,
supra
note 21, at 1042 (“Outside of cyberlaw, contemporary legal scholars and govern…
See
Katyal,
supra
note 21, at 1042 (“Outside of cyberlaw, contemporary legal scholars and government have not given sufficient attention to architecture . . . .”).
52
Tien,
supra
note 22, at 5 (arguing that architectural regulation is “more dangerous” than lega…
Tien,
supra
note 22, at 5 (arguing that architectural regulation is “more dangerous” than legal regulation because it has less public visibility and can be used to prohibit the possibility of certain experiences, thus risking distorted norm formation).
53
Susan Sturm,
The Architecture of Inclusion: Advancing Workplace Equity in Higher Education
, 29
Har…
Susan Sturm,
The Architecture of Inclusion: Advancing Workplace Equity in Higher Education
, 29
Harv. J.L. & Gender
247 (2006);
see also
Norman W. Spaulding,
Constitution as Countermonument: Federalism, Reconstruction, and the Problem of Collective Memory
, 103
Colum. L. Rev.
1992 (2003) (describing ways in which the design of monuments serve as a metaphor for the new federalism).
54
Thaler & Sunstein
supra
note 49, at
(defining a “choice architect” as one who “has the re…
Thaler & Sunstein
supra
note 49, at
(defining a “choice architect” as one who “has the responsibility for organizing the context in which people make decisions”); Eric J Johnson et al.,
Beyond Nudges: Tools of a Choice Architecture
, 23
Marketing Letters
487, 488 (2012) (“While it is tempting to think that choices can be presented in a ‘neutral’ way . . . , the reality is that there is no neutral architecture.”).
55
Thaler & Sunstein
supra
note 49, at 3;
see also
Matthew A Smith & Michael S. McPherson,
Nudging f…
Thaler & Sunstein
supra
note 49, at 3;
see also
Matthew A Smith & Michael S. McPherson,
Nudging for Equality: Values in Libertarian Paternalism
, 61
Admin. L. Rev
. 323, 323 (2009).
56
See
Tien,
supra
note 22, at 15 (“Although architectural regulation is not inherently associated …
See
Tien,
supra
note 22, at 15 (“Although architectural regulation is not inherently associated with technological change, these issues are raised most clearly in that context.”); Katyal,
supra
note 21, at 1041 (“[T]he real world may be more amenable to architectural constraints than the Internet.”).
57
For more on law and geography, see generally Gordon L. Clark
Foreword
in
The Legal Geographies R…
For more on law and geography, see generally Gordon L. Clark
Foreword
in
The Legal Geographies Reader: Law, Power, and Space,
at x (Nicholas Blomley et al. eds., 2001) (noting that this is a new field of research). Even earlier, Foucault has been “credited with conceptualizing the relationship between space, architecture, and social power.” Elise C. Boddie
, Racial Territoriality
, 58
UCLA L. Rev.
401, 442 (2010);
see
Richard Thompson Ford,
The Boundaries of Race: Political Geography in Legal Analysi
s, 107
Harv. L. Rev.
1841, 1857 (1994); Paul Rabinow,
Ordonnance, Discipline, Regulation: Reflections on Urbanism
in
The Anthropology of Space and Place 353-61
(2003);
see also
Chris Philo,
Michel Foucault
in
Key Thinkers on Space and Place
121, 126 (Phil Hubbard et al. eds., 2004) (noting that Foucault addresses “the physical divide of segregation and exclusion that inscribes into bricks and mortar a distancing of the Other from the Same” (internal citations omitted)).
58
David Delaney, Race, Place, and the Law: 1836-1948,
at
9 (1998)
David Delaney, Race, Place, and the Law: 1836-1948,
at
9 (1998)
59
Lior Jacob Strahilevitz,
Exclusionary Amenities in Residential Communities,
92
Va. L. Rev.
437, 44…
Lior Jacob Strahilevitz,
Exclusionary Amenities in Residential Communities,
92
Va. L. Rev.
437, 441, 487 (2006) (providing examples such as golf courses, tennis courts, polo grounds, in-home elevators, and concierges).
60
Importantly, he also argues—in a similar vein to this Article—that extra-legal exclusion can c…
Importantly, he also argues—in a similar vein to this Article—that extra-legal exclusion can circumvent traditional antidiscrimination laws.
Id.
at 437.
61
See
Fischel,
supra
note 37 (describing the Homevoter Hypothesis);
see also infra
Part III.A.1 (des…
See
Fischel,
supra
note 37 (describing the Homevoter Hypothesis);
see also infra
Part III.A.1 (describing intentional exclusion in residential communities).
62
See
Blomley,
supra
note 44, at 56.
See
Blomley,
supra
note 44, at 56.
63
See, e.g.
, Keith Aoki,
Race, Space, and Place: The Relation Between Architectural Modernism, Post-…
See, e.g.
, Keith Aoki,
Race, Space, and Place: The Relation Between Architectural Modernism, Post-Modernism, Urban Planning, and Gentrification
, 20
Fordham Urb. L.J.
699 (1993) (explaining how architectural preferences influence and contribute to patterns of racial distribution); John O. Calmore,
Racialized Space and the Culture of Segregation: “Hewing a Stone of Hope from a Mountain of Despair
143
U. Pa. L. Rev. 1233 (1995) (
discussing racialized space as urban apartheid); Ford,
supra
note 57 (discussing the role of segregation in disempowerment); Richard Thompson Ford,
Geography and Sovereignty: Jurisdictional Formation and Racial Segregation
, 49
Stan. L. Rev
. 1365 (1997) (addressing differing legal treatment of racially segregated electoral districts and racially segregated local governments); Michael Keith & Malcolm Cross,
Racism and the Postmodern City
in
Racism, The City and the State
11 (Michael Keith & Malcolm Cross eds., 1993) (discussing “the architecture of power in the city”).
64
Boddie,
supra
note 57, at 405-06.
Boddie,
supra
note 57, at 405-06.
65
Id
. at 409.
Id
. at 409.
66
See
Stephen Clowney,
Landscape Fairness: Removing Discrimination from the Built Environment,
2013
See
Stephen Clowney,
Landscape Fairness: Removing Discrimination from the Built Environment,
2013
Utah L. Rev
1.
67
Boddie,
supra
note 57, at 414 n.63;
id.
at 401 (arguing that places “have a racial identity and …
Boddie,
supra
note 57, at 414 n.63;
id.
at 401 (arguing that places “have a racial identity and meaning based on socially engrained racial biases regarding the people who inhabit, frequent, or are associated with particular places and racialized cultural norms of spatial belonging and exclusion”); Clowney,
supra
note 66, at 1;
see also
James S. Duncan & Nancy G. Duncan, Landscapes of Privilege: The Politics of the Aesthetic in an American Suburb
4 (2003) (“A seemingly innocent appreciation of landscapes and desire to protect local history and nature can act as subtle but highly effective mechanisms of exclusion and reaffirmation of class identity.”).
68
It is difficult to prove that an issue has been overlooked, as this requires proving a thing’s n…
It is difficult to prove that an issue has been overlooked, as this requires proving a thing’s nonexistence or underreporting. Here, I attempt it by examining places where I would expect to find mention of architectural exclusion, and not finding it there, suggest that it has been overlooked.
See, e.g.
Douglas N. Walton
Argumentation Schemes for Presumptive Reasoning
119 (1996) (“In some circumstances it can safely be assumed that if a certain event had occurred, evidence of it could be discovered by qualified investigators. In such circumstances it is perfectly reasonable to take the absence of proof of its occurrence as positive proof of its nonoccurrence.” (quoting
Irving Copi
Introduction to Logic
102 (1982)).
69
See
Boddie,
supra
note 57, at 414 n.63;
see also
Richard H. Chused,
Gendered Space
, 42
Fla. L. Rev
See
Boddie,
supra
note 57, at 414 n.63;
see also
Richard H. Chused,
Gendered Space
, 42
Fla. L. Rev
. 125, 125-35 (1990) (arguing that law has allowed the creation of gendered spaces); Johnson,
supra
note 54, at 488 (noting that “[c]hoice architects have significant, if perhaps underappreciated, influence, much like the architect of a building who affects the behaviors of the building’s inhabitants through the placement of doors, hallways, staircases, and bathrooms”).
70
Robert C Ellickson et al., Land Use Controls
725-810 (4th ed. 2013).
Robert C Ellickson et al., Land Use Controls
725-810 (4th ed. 2013).
71
The text uses this term as a catchall that includes, for example, extended families, homosexual co…
The text uses this term as a catchall that includes, for example, extended families, homosexual couples, and unrelated college roommates living together.
Id.
at 787-94.
72
Id.
at 725-810 (the chapter is organized into five categories, including the four mentioned in the…
Id.
at 725-810 (the chapter is organized into five categories, including the four mentioned in the body of the text).
73
Id.
at 746. The text does quote Jon C. Dubin,
From Junkyards to Gentrification: Explicating a Righ…
Id.
at 746. The text does quote Jon C. Dubin,
From Junkyards to Gentrification: Explicating a Right to Protective Zoning in Low-Income Communities of Color
77 Minn. L. Rev.
739, 760-61 (1993), which acknowledges “the disproportionate displacement of African-American families through urban renewal, highway, and local redevelopment projects,” but this is as close as the text gets to a discussion of architectural exclusion.
See also
David Callies et al., Land Use
573-74 (6th ed. 2012) (discussing exclusionary zoning and stating, “Local governments are most imaginative in regulating land use in facially innocuous ways that have the effect of excluding, and all too often been intended to exclude, racial, religious and economic minorities . . . . Among the more common techniques: minimum lot area requirements, minimum floor area requirements, limitations on multifamily dwellings and manufactured housing, minimum yard, setback and other extraordinary bulk requirements, and growth caps” but not mentioning architectural exclusion);
Daniel P. Selmi et al., Land Use Regulation
697-737 (4th ed. 2012) (discussing discrimination but focusing only on exclusionary zoning);
Stewart E. Sterk & Eduardo M. Penalver, Land Use Regulation
295-331 (2011) (land-use text whose section on discrimination discusses discrimination against racial and ethnic minorities, discrimination based on disability, and discrimination based on family composition, but does not address architectural exclusion).
74
See infra
Part IV.B;
see also
Boddie,
supra
note 57, at 408 (“[T]he ongoing spatial isolation an…
See infra
Part IV.B;
see also
Boddie,
supra
note 57, at 408 (“[T]he ongoing spatial isolation and marginalization of people of color as a group remains a significant problem. . . . [B]ut constitutional law has mostly ignored this context, except in cases involving overt discrimination, or where the state explicitly uses racial classifications to draw, reinforce, or create physical or jurisdictional boundaries.”).
75
See
Vicki Been,
Locally Undesirable Land Uses in Minority Neighborhoods: Disproportionate Siting o…
See
Vicki Been,
Locally Undesirable Land Uses in Minority Neighborhoods: Disproportionate Siting or Market Dynamics?
, 103
Yale L.J.
1383 (1994); Richard J. Lazarus,
Pursuing “Environmental Justice”: The Distributional Effects of Environmental Protection
, 87
Nw. U. L. Rev.
787 (1993).
76
See
Michelle Wilde Anderson,
Mapped Out of Local Democracy
, 62
Stan. L. Rev
. 931 (2010); Gershon M…
See
Michelle Wilde Anderson,
Mapped Out of Local Democracy
, 62
Stan. L. Rev
. 931 (2010); Gershon M. Ratner,
Inter-Neighborhood Denials of Equal Protection in the Provision of Municipal Services
, 4
Harv. C.R.-C.L. L. Rev
. 1 (1968);
see also
Ammons v. Dade City, Fla., 783 F.2d 982 (11th Cir. 1986) (holding that the city intentionally discriminated against African Americans by providing them with unequal municipal services, including street paving and storm water drainage facilities); Dowdell v. City of Apopka, Fla., 698 F.2d 1181 (11th Cir. 1983) (affirming district court’s finding of discriminatory intent where the city maintained a geographically and racially segregated municipal services system).
77
Tien,
supra
note 22, at 22 (“Government action that architects social settings and equipment can…
Tien,
supra
note 22, at 22 (“Government action that architects social settings and equipment can regulate our behavior as effectively as can sanction-backed rules.”);
see also
Thaler & Sunstein
supra
note 49, at
11 (using architecture in the broad sense, stating, “[S]ometimes the architecture is taken for granted and could benefit from some careful attention.”).
78
See infra
Part IV.
See infra
Part IV.
79
Because of architectural exclusion’s hidden nature, one could argue that courts should be even m…
Because of architectural exclusion’s hidden nature, one could argue that courts should be even more diligent about policing the exclusionary effects of an architectural decision than a legal one.
80
See supra
notes 3-5.
See supra
notes 3-5.
81
Winner,
supra
note 28, at 123-24.
Winner,
supra
note 28, at 123-24.
82
Id
. at 124.
Id
. at 124.
83
Id
. at 123.
Id
. at 123.
84
See generally infra
Part III (discussing the evolution of court decisions striking down racially d…
See generally infra
Part III (discussing the evolution of court decisions striking down racially discriminatory laws).
85
Patrick J McMahon et al., An Analysis of Factors Contributing to “Walking Along Roadway” Crash…
Patrick J McMahon et al., An Analysis of Factors Contributing to “Walking Along Roadway” Crashes: Research Study and Guidelines for Sidewalks and Walkways 8 (2002),
[http://perma.cc/HB7Z-B5GH] (determining that “the likelihood of a site with a paved sidewalk being a crash site is 88.2 percent lower than a site without a sidewalk. . . . [T]he presence of a sidewalk clearly has a strong beneficial effect of reducing the risk of a ‘walking along roadway’ pedestrian/motor vehicle crash”).
86
Often, decisions are intentionally race-based, as will be discussed in this section. However, some…
Often, decisions are intentionally race-based, as will be discussed in this section. However, sometimes decisions are made with the knowledge that there might be a race-based effect, but with the actual purpose of the decision not being race-based. For example, the decision to forego sidewalks in a community could have motivations other than exclusion, such as a desire to reduce impervious cover or maintain a rural feel, even if the effect is also exclusionary.
87
James W Loewen, Sundown Towns: A Hidden Dimension of American Racism
254-55 (2006) (describing a n…
James W Loewen, Sundown Towns: A Hidden Dimension of American Racism
254-55 (2006) (describing a number of U.S. towns that excluded African Americans, either formally or informally).
88
Episode 51: The Arsenal of Exclusion
, 99% Invisible Podcast (Apr. 4, 2012) (downloaded at http://9…
Episode 51: The Arsenal of Exclusion
, 99% Invisible Podcast (Apr. 4, 2012) (downloaded at
[http://perma.cc/2ZGF-4KVF]) (describing one-way streets that prohibit turns into a fancy neighborhood);
see also
Ann S. Kim,
Maine Architects Look To Make Over Misfit Street
Portland Press Herald
, Sept. 20, 2011,
[http://perma.cc/7NJ2-WCAU] (describing an arterial road with concrete median barriers that was constructed as part of urban renewal with the goal of creating a ring of multi-lane roads around the city so that cars could easily and quickly get from one side of the city to the other).
89
Bryan Goebel,
Divided by a Highway, East Palo Alto Looks To Reconnect Its West Side
Streetsblog S…
Bryan Goebel,
Divided by a Highway, East Palo Alto Looks To Reconnect Its West Side
Streetsblog SF (
Oct. 25, 2012),
[http://perma.cc/B8C2-LGHP].
90
See generally
Peter Marcuse,
The Enclave, the Citadel, and the Ghetto: What Has Changed in the Pos…
See generally
Peter Marcuse,
The Enclave, the Citadel, and the Ghetto: What Has Changed in the Post-Fordist U.S. City
, 33
Urb. Aff. Rev.
228, 231 (1997) (defining ghetto as a “spatially concentrated area used to separate and to limit a particular involuntarily defined population group (usually by race) held to be, and treated as, inferior by the dominant society”).
91
Gary S Becker & Kevin M. Murphy, Social Economics: Market Behavior in a Social Environment
71 (200…
Gary S Becker & Kevin M. Murphy, Social Economics: Market Behavior in a Social Environment
71 (2000).
92
But see
Marcuse,
supra
note 90, at 229 (“Space and race have been combined in the United States …
But see
Marcuse,
supra
note 90, at 229 (“Space and race have been combined in the United States today to produce a new ghetto that is different from the ghettos of the past and from the immigrant enclaves of the past and present. The U.S. ghetto today is an outcast ghetto, differing in its definition and role from the historic black ghettos in that its inhabitants are the excluded and the castaway rather than the subordinated and restricted.”).
93
Sarah Hulett,
Racial, Regional Divide Still Haunt Detroit’s Progress
, NPR (Sept. 11, 2012), http:/…
Sarah Hulett,
Racial, Regional Divide Still Haunt Detroit’s Progress
, NPR (Sept. 11, 2012),
[http://perma.cc/Z2EN-AZWZ]; Steve Neavling,
Wall Built To Separate White, Black People Near 8 Mile Stays Strong, Colorful & Relevant
Motor City Muckraker
(Apr. 22, 2013),
[http://perma.cc/U66G-UYK9].
94
See
Justin P. Steil,
Innovative Responses to Foreclosures: Paths to Neighborhood Stability and Hou…
See
Justin P. Steil,
Innovative Responses to Foreclosures: Paths to Neighborhood Stability and Housing Opportunity
, 1
Colum. J. Race & L.
63, 69 n.14 (2011) (“The four-tiered underwriting system developed by the Federal Home Owners Loan Corporation (HOLC) in the early 1930’s systematically undervalued racially mixed neighborhoods and strongly discouraged lending in integrated or primarily non-white communities. The Federal Housing Authority . . . express[ed] concern about the impact of ‘incompatible racial or nationality groups’ on property values and stating that, ‘if a neighborhood is to retain stability, it is necessary that properties shall continue to be occupied by the same social and racial classes.’” (quoting
Gregory Squires, Capital and Communities in Black and White
53 (1994))).
See generally
Kenneth T. Jackson, Crabgrass Frontier
203-18 (1985) (describing FHA and loan programs).
95
Hulett,
supra
note 93.
Hulett,
supra
note 93.
96
See
John R. Logan &
Brian J. Stults,
The Persistence of Segregation in the Metropolis: New Finding…
See
John R. Logan &
Brian J. Stults,
The Persistence of Segregation in the Metropolis: New Findings from the 2010 Census
US2010 Project
6 (2011),
[http://perma.cc/CVG4-K47D]
ranking the Detroit metropolitan area number one in black-white segregation while noting that Detroit
had substantial declines in segregation for the first time since 1980,” which “coincided with very substantial declines in the central city black population[] . . . as part of the fallout from the recession and foreclosure crisis”);
see also
Kyle Vanhemert,
The Best Map Ever Made of America’s Racial Segregation
Wired
(Aug. 26, 2013, 6:30 AM),
[http://perma.cc/YBR7-QGUV] (describing comprehensive maps made by a University of Virginia researcher using 2010 U.S. Census data to illustrate the racial makeup of major metropolitan areas, including one for Detroit that depicts Eight Mile Road as a “sharp racial dividing line”).
97
Sari Bashi,
Bad Fences
Legal Aff
., July-Aug. 2002, at 13 (noting that ninety percent of the resid…
Sari Bashi,
Bad Fences
Legal Aff
., July-Aug. 2002, at 13 (noting that ninety percent of the residents in the housing project are African-American, while seventy-seven percent of residents in Hamden are white); Benjamin Mueller,
In Connecticut, Breaking a Barrier Between a Suburb and Public Housing
N.Y. Times
, July 11, 2014,
[http://perma.cc/HNJ9-EAZX] (noting that the wall was 1500 feet long and twelve feet high).
98
Bashi,
supra
note 97 (“Because of the fence, West Rock is one of the country’s most isolated p…
Bashi,
supra
note 97 (“Because of the fence, West Rock is one of the country’s most isolated public housing projects. There is only one road out, and it winds past a university, a cemetery, and an Army Reserve office before reaching city streets.”).
99
Paul Bass,
New Haven-Hamden “Berlin Wall” Coming Down
New Haven Indep.
(May 4, 2014, 3:49 PM), ht…
Paul Bass,
New Haven-Hamden “Berlin Wall” Coming Down
New Haven Indep.
(May 4, 2014, 3:49 PM),
[http://perma.cc/M638-G65R]; Ben Mueller,
What Doesn’t Love a Wall
, 45
New J.
, (2012),
[http://perma.cc/C8UK-GKYU].
100
Bass,
supra
note 99.
Bass,
supra
note 99.
101
Id.
Id.
102
Associated Press,
Hamden-New Haven Fence To Come Down Today
NBC Conn.
(May 12, 2014, 3:10 PM), ht…
Associated Press,
Hamden-New Haven Fence To Come Down Today
NBC Conn.
(May 12, 2014, 3:10 PM),
];
see also
Bass,
supra
note 99 (“The federal government began a civil-rights investigation that could lead to a lawsuit against the town of Hamden over the fence, and prevent the town from receiving any federal money.”).
103
Thompson v. U.S. Dep’t of Hous. & Urban Dev., 348 F. Supp. 2d 398, 428 (D. Md. 2005).
Thompson v. U.S. Dep’t of Hous. & Urban Dev., 348 F. Supp. 2d 398, 428 (D. Md. 2005).
104
Id
. at 404, 427, 428 (stating that plaintiffs, African-American residents of public housing in Bal…
Id
. at 404, 427, 428 (stating that plaintiffs, African-American residents of public housing in Baltimore County, asserted that the local housing authority’s practices resulted in segregation and discrimination in violation of their Equal Protection rights).
105
Id.
at 429, n.56;
see also
Daniel D’Oca,
Perimeter Fence
Arsenal Exclusion & Inclusion
(Aug. 8, 2…
Id.
at 429, n.56;
see also
Daniel D’Oca,
Perimeter Fence
Arsenal Exclusion & Inclusion
(Aug. 8, 2010, 10:51 AM),
[http://perma.cc/EZ6S-AWJ4]; Erin Texeira,
Plans To Fence in Hollander Ridge Killed
HUD Officials Refuse To Help City, County Pay for the Project
Balt. Sun
, Aug. 28, 1996,
[http://perma.cc/MLT4-YNUV] (“After residents in Rosedale . . . complained about rising crime and decreased property values in their middle-class neighborhood, city and county officials agreed to help pay for an 8-foot-high wrought-iron fence.”).
106
See generally
Edward J. Blakely & Mary Gail Snyder
Fortress America: Gated Communities in the Uni…
See generally
Edward J. Blakely & Mary Gail Snyder
Fortress America: Gated Communities in the United States
(1997) (discussing municipal debates surrounding gated communities); Setha M. Low,
The Edge and the Center: Gated Communities and the Discourse of Urban Fear
, 103
Am. Anthropologist
45, 45 (2001) (noting that gated communities create “a landscape that encodes class relations and residential (race/class/ethnic/gender) segregation more permanently in the built environment”).
107
See
Jerry L. Anderson et al.,
A Study of American Zoning Board Composition and Public Attitudes To…
See
Jerry L. Anderson et al.,
A Study of American Zoning Board Composition and Public Attitudes Toward Zoning Issues
, 40
Urb. Law
. 689, 710 (2008) (“Historically, gated communities have been seen as mostly white professional enclaves, contributing to social segregation by race and class.”); Steven Siegel,
The Public Interest and Private Gated Communities: A Comprehensive Approach to Public Policy That Would Discourage the Establishment of New Gated Communities and Encourage the Removal of Gates from Existing Private Communities
, 55
Loy. L. Rev
. 805, 811 (2009) (“Although gated communities are subject to general federal and state nondiscrimination laws, these communities nevertheless have been found to be ‘succe[ssful] in keeping out minorities and large families.’” (footnote omitted)).
108
See, e.g.
La Habra Heights, Cal.
Mun. Code
§ 7.3.20(E)(2) (2013), http://www.codepublishing.com/…
See, e.g.
La Habra Heights, Cal.
Mun. Code
§ 7.3.20(E)(2) (2013),
] (prohibiting “[g]ates or guardhouses that restrict access to residential neighborhoods, subdivisions, and multi-lot developments” in the Residential-Agricultural Zone);
Carrboro, N.C., Land Use Ordinance
art. X, § 15-149(c)(6) (1980) (prohibiting “[c]onstruction of gates that prevent access to private roads serving five or more lots or dwelling units”);
2012 Comprehensive Plan
Growth Plan. Comm. 101
(June 12, 2012),
[https://perma.cc/FD55-HHCA] (“Gated communities are not in keeping with the character of Kennebunkport.”).
109
See
Howard Blume,
La Habra Heights Shuts the Gates : Privacy: Council Majority Calls Action To Bar…
See
Howard Blume,
La Habra Heights Shuts the Gates : Privacy: Council Majority Calls Action To Bar Gated Communities a Stand Against Elitism. Real Estate Industry Leaders Express Dismay.
L.A. Times
, Sept. 20, 1990,
] (noting the rarity of municipal bans on gated communities).
110
See
Transp. Div.,
Traffic Calming in Berkeley
City Berkeley
, http://www.ci.berkeley.ca.us/content…
See
Transp. Div.,
Traffic Calming in Berkeley
City Berkeley
[http://perma.cc/2ZJG-XQMT] (noting that traffic diverters were first installed in the mid-1960s “to keep through-traffic from running alongside San Pablo Park” and that Berkeley’s City Council adopted a Traffic Management Plan in 1975, which resulted in the installation of many additional diverters and street barriers).
111
Douglas Martin,
Fence Is Not Neighborly in a Suburb of Cleveland
N.Y. Times
, June 27, 1987, http:…
Douglas Martin,
Fence Is Not Neighborly in a Suburb of Cleveland
N.Y. Times
, June 27, 1987,
[http://perma.cc/V9E3-PUJA] (“The barricade and three others like it were erected by Shaker Heights in 1976 in the name of traffic control but were immediately perceived as something quite different by some Clevelanders.”).
112
See
Joel Epstein & Santiago Sifre,
Bridgeport: Cutting off Access by the Suburban User: Final Repo…
See
Joel Epstein & Santiago Sifre,
Bridgeport: Cutting off Access by the Suburban User: Final Report to the Office of National Drug Control Policy
Abt Associates Incorporated
4 (Sept. 15, 1993),
[http://perma.cc/FNA2-HGNG].
113
Katyal,
supra
note 21, at 1049 n.31. In fact, one year after these barriers were erected, a qualit…
Katyal,
supra
note 21, at 1049 n.31. In fact, one year after these barriers were erected, a qualitative ethnographic study of East Bridgeport revealed that open-air drug deals were still prevalent throughout the area.
See
Epstein & Sifre,
supra
note 112, at 8-10. The study showed that drivers responded by parking their cars and walking to buy drugs, and any curbed drug sales often just pushed drug dealers “to go to where the heat is not.”
Id.
at 10.
114
Katyal,
supra
note 21, at 1070 (noting that after placing those barriers, assaults and homicides d…
Katyal,
supra
note 21, at 1070 (noting that after placing those barriers, assaults and homicides decreased). In North London, the city closed off a number of roads in order to decrease prostitution-related traffic, which resulted in a decrease in crime and a more peaceful neighborhood.
Id.
115
Of course, these structures might also be put in place to preserve the status quo in a neighborhoo…
Of course, these structures might also be put in place to preserve the status quo in a neighborhood that wants to maintain its current state. And although exclusionary infrastructure also affects local residents, who must often take a longer way around and thus may be seen as over-inclusive, many residents are fine with that result, so long as it keeps out “undesired” visitors.
See
Loewen
supra
note 87, at 254 (noting that residents of one “New York city suburb ‘would rather bear the inconvenience of narrow and congested streets on a day-by-day basis than make it easier for the inhabitants of New York City to reach the town.’”).
116
Katyal,
supra
note 21, at 1070.
Katyal,
supra
note 21, at 1070.
117
A study revealed that efforts by the City of Bridgeport to curb drug dealing and violence through …
A study revealed that efforts by the City of Bridgeport to curb drug dealing and violence through building demolition and road closures resulted in forcing the drug trade from one side of a neighborhood project to the other.
See
Epstein & Sifre
supra
note
112
, at 8-10.
118
Regina Austin,
Not
Just for the Fun of It!”: Governmental Restraints on Black Leisure, Social I…
Regina Austin,
Not
Just for the Fun of It!”: Governmental Restraints on Black Leisure, Social Inequality, and the Privatization of Public Space
, 71
S. Cal. L. Rev
. 667, 669 (1998) (“[T]he restraints may operate not on a leisure activity itself, but on the mobility required to engage in the activity. For example, the routing patterns of some urban public transportation systems deliberately make it difficult for central-city residents to get to outlying leisure venues like shopping malls and beaches.”).
119
Id.
see also
Thomas Sanchez et al.,
Moving to Equity: Addressing Inequitable Effects of Transport…
Id.
see also
Thomas Sanchez et al.,
Moving to Equity: Addressing Inequitable Effects of Transportation Policies on Minorities
Civil Rights Project at Harv. Univ
14 (2003),
[http://perma.cc/DRZ4-L9AH]; Jerett Yan, Comment,
Rousing the Sleeping Giant: Administrative Enforcement of Title VI and New Routes to Equity in Transit Planning
, 101
Calif. L. Rev
. 1131, 1133 (2013) (“The overt de jure discrimination Plessy and Parks faced is largely a relic of this nation’s past; however, transit-related disparities endure. Today, transit policy tends to favor higher-income transit riders over lower-income transit riders, and suburbs over cities.”).
120
White people are also more likely to own cars than people of color.
See, e.g.
, Sanchez et al.,
sup…
White people are also more likely to own cars than people of color.
See, e.g.
, Sanchez et al.,
supra
note 119, at vii (“Just 7 percent of white households do not own a car, compared with 24 percent of African-American households, 17 percent of Latino households, and 13 percent of Asian-American households.”).
121
Id.
(“Nationally, public transportation users are disproportionately minorities with low to mode…
Id.
(“Nationally, public transportation users are disproportionately minorities with low to moderate incomes. Overall, public transit users are 45 percent white, 31 percent African American, and 18 percent Latino/Hispanic.”);
see also
Adie Tomer et al.,
Missed Opportunity: Transit and Jobs in Metropolitan America
Brookings Inst.
9 (May 2011),
[http://perma.cc/VZJ2-37JM?type=pdf] (“[L]ow-income people are less likely to own cars and depend more on transit than other groups.”); Mark Garrett & Brian Taylor,
Reconsidering Social Equity in Public Transit
, 13
Berkeley Plan.
J.
6, 13 (1999) (“[C]ity residents tend to be poorer, mostly minority, and more transit dependent than suburbanites.”).
122
In addition to providing mobility options to those who are unable to drive due to age, condition, …
In addition to providing mobility options to those who are unable to drive due to age, condition, or financial reasons, transit hubs aid those in private vehicles by “freeing up scarce freeway space or making it easier for babysitters, house cleaners, or other car-less service providers to reach their homes.” Strahilevitz,
supra
note 59, at 487. Further, perhaps counter-intuitively, some studies have shown that areas directly surrounding mass transit have reduced crime rates.
See, e.g.
, Richard Block & Carolyn Rebecca Block
, The Bronx and Chicago: Street Robbery in the Environs of Rapid Transit Stations,
in
Analyzing Crime Patterns: Frontiers of Practice
137, 147-48 (Victor Goldsmith et al. eds., 2000) (research based on the Bronx and Chicago). However, there is also some evidence that bus stop locations have been tied to crime, though this research suggests that crime is more tied to the area around the stop rather than to the existence of the stop itself.
See
Katyal,
supra
note 21, at 1095 n.210 (“The location of the bus stop was found to be a critical factor in predicting the crime rate; for example, those bus stops near porous alleys had crime rates that were approximately double those of stops not near alleys. . . . Bus stops near vacant lots also had crime rates at least double those of stops not near such lots.” (citations omitted)).
123
See
Fischel
supra
note 37 (describing the Homevoter Hypothesis).
See
Fischel
supra
note 37 (describing the Homevoter Hypothesis).
124
See, e.g.
, Henderson,
supra
note 6, at 299-300 (“In suburban Cobb County[, Atlanta], the chairma…
See, e.g.
, Henderson,
supra
note 6, at 299-300 (“In suburban Cobb County[, Atlanta], the chairman of a local anti-tax organization declared that ‘M[etropolitan] A[tlanta] R[egional] T[ransit] A[uthority]-style mass transit would lead to an increase in crime and the construction of low-income housing in Cobb County[.]’” (citation omitted)). Henderson’s research on transit in Atlanta involved interviews with elected officials and planners; he noted that “[m]ost interviewees for this research acknowledged that white racism complicated decision-making about transit. Suburban elected officials acknowledged that a substantial portion of their constituents held racist views. One county official mentioned that at public meetings in her Atlanta suburb, residents loudly protested against the MARTA bus service because blacks would steal TVs[.]”
Id.
at 300 (citation omitted).
125
Id
Id
126
Ross & Leigh,
supra
note 45, at 377.
Ross & Leigh,
supra
note 45, at 377.
127
Strahilevitz,
supra
note 59, at 488 n.163 (“Some white suburbs of San Francisco opted out of the…
Strahilevitz,
supra
note 59, at 488 n.163 (“Some white suburbs of San Francisco opted out of the Bay Area Rapid Transit system, fearing it might encourage African Americans to move in.”).
128
Id.
at 487-88.
Id.
at 487-88.
129
Id.
(“[I]n the process of planning the Washington, D.C., subway, citizens in various relatively …
Id.
(“[I]n the process of planning the Washington, D.C., subway, citizens in various relatively affluent areas opposed the establishment of subway stations because of concerns that inner city denizens would ride the subways into their neighborhoods. Affluent neighborhoods in other parts of the country have done likewise, foregoing otherwise desirable investments in valuable amenities like well-maintained public roads, parks, and even street signs because of fears that such amenities would attract undesirables.”).
130
See generally
Fischel
supra
note 37.
See generally
Fischel
supra
note 37.
131
See, e.g.
, Henderson,
supra
note 6, at 300 (“A couple in the exurban sprawl north of Atlanta sta…
See, e.g.
, Henderson,
supra
note 6, at 300 (“A couple in the exurban sprawl north of Atlanta stated that they moved to the county because they felt mass transit would never come there, and that ‘transit makes areas accessible for lower-income families that could otherwise not come out here because they don’t have transportation and that’s good[.]’” (citation omitted)).
132
Austin,
supra
note 118, at 682.
Austin,
supra
note 118, at 682.
133
Dr. Martin Luther King recognized this fact when he stated, “Urban transit systems in most Ameri…
Dr. Martin Luther King recognized this fact when he stated, “Urban transit systems in most American cities . . . have become a genuine civil rights issue—and a valid one—because the layout of rapid-transit systems determines the accessibility of jobs to the black community. If transportation systems in American cities could be laid out so as to provide an opportunity for poor people to get meaningful employment, then they could begin to move into the mainstream of American life.” Martin Luther King, Jr.,
A Testament of Hope
Playboy
, Jan. 1969,
reprinted in
A Testament of Hope: The Essential Writings and Speeches of Martin Luther King, Jr
. 313, 325 (James Melvin Washington ed., 1991).
134
See, e.g.
, Ross & Leigh,
supra
note 45, at 376-77;
see also
Michael J. Austin et al., Serving Low-…
See, e.g.
, Ross & Leigh,
supra
note 45, at 376-77;
see also
Michael J. Austin et al., Serving Low-Income Families in Poverty Neighborhoods Using Promising Programs and Practices: Building a Foundation for Redesigning Public and Nonprofit Social Services
106-07 (2004),
[http://perma.cc/WDK2-3SB8?type=live] (“Many low-income parents must rely on public transportation to get to their jobs. As more and more employment opportunities move to suburban areas, while low-income workers remain in urban areas, the use of public transportation becomes more problematic.”).
135
Ross & Leigh,
supra
note 45, at 376-77 (noting that seventy-six percent of inner-city residents we…
Ross & Leigh,
supra
note 45, at 376-77 (noting that seventy-six percent of inner-city residents were black while ninety-one percent of suburban residents were white).
136
Id.
at 377.
Id.
at 377.
137
See
Henderson,
supra
note 6, at 299 (discussing Atlanta, and noting that whites rejecting MARTA an…
See
Henderson,
supra
note 6, at 299 (discussing Atlanta, and noting that whites rejecting MARTA and relying on automobiles “enabled physical secession to outer suburban areas while simultaneously providing a means of travel through spaces inhabited by blacks, all without having to interact with blacks”). Policymakers in particular should be cognizant of the constitutional implications of their discriminatory behavior
Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (“Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect. ‘Public officials sworn to uphold the Constitution may not avoid a constitutional duty by bowing to the hypothetical effects of private racial prejudice that they assume to be both widely and deeply held.’” (quoting Palmer v. Thompson, 403 U.S. 217, 260-61 (1971) (White, J., dissenting))).
138
Keith R. Ihlanfeldt & David L. Sjoquist,
The Spatial Mismatch Hypothesis: A Review of Recent Studi…
Keith R. Ihlanfeldt & David L. Sjoquist,
The Spatial Mismatch Hypothesis: A Review of Recent Studies and Their Implications for Welfare Reform
, 9
Housing Pol’y Debate
849, 881 (1998).
139
See
Tomer et al
supra
note 121, at 19 (“Residents of low-income suburban neighborhoods can rea…
See
Tomer et al
supra
note 121, at 19 (“Residents of low-income suburban neighborhoods can reach just over one-in-five middle- or low-skill industry jobs in their metropolitan areas[,] . . . the types of jobs for which they may be most likely to qualify.”).
140
It is not only the placement and location of individual transit stops that results in an exclusion…
It is not only the placement and location of individual transit stops that results in an exclusionary environment, but also the larger structure of the transit system.
See, e.g.
, Shoaib M. Chowdhury & Steven I-Jy Chien,
Intermodal Transit System Coordination
, 25
Transport. Plan. & Tech
. 257 (2002) (describing intermodal transportation networks).
141
David W. Chen,
Suit Accusing Shopping Mall of Racism over Bus Policy Settled
N.Y. Times
, Nov. 18,…
David W. Chen,
Suit Accusing Shopping Mall of Racism over Bus Policy Settled
N.Y. Times
, Nov. 18, 1999,
[http://perma.cc/7LWX-5CV8].
142
Id.
Id.
143
Id.
; Kevin Collison,
Wiggins Suit Settled - Son To Get $2.55 Million
Buff. News
, Nov. 17, 1999, h…
Id.
; Kevin Collison,
Wiggins Suit Settled - Son To Get $2.55 Million
Buff. News
, Nov. 17, 1999,
[http://perma.cc/7S8T-HYKW] (“The first [witness] was to be Kenneth D. Cannon, the official for Galleria owner Pyramid Cos. who was the alleged architect of the mall’s policy banning the Route 6 bus.”).
144
Lynne Duke,
Buffalo Family Seeking Millions For Fatal Lack of a Bus Stop
Wash. Post
, Nov. 15, 199…
Lynne Duke,
Buffalo Family Seeking Millions For Fatal Lack of a Bus Stop
Wash. Post
, Nov. 15, 1999,
[http://perma.cc/8J3F-YR7H].
145
Id
.;
see also
Chen,
supra
note 141 (“[O]fficials from the Transportation Authority revealed that…
Id
.;
see also
Chen,
supra
note 141 (“[O]fficials from the Transportation Authority revealed that they had, over several years, repeatedly asked the mall to allow the bus onto the premises, but that the mall had always refused, fearful of rambunctious youths.”); Collison
supra
note 143
146
Chen,
supra
note 141.
Chen,
supra
note 141.
147
Id
Id
148
Steven Paul McSloy,
Closing Remarks: Breaking the Power of the Power Brokers
, 9
St. John’s J. Le…
Steven Paul McSloy,
Closing Remarks: Breaking the Power of the Power Brokers
, 9
St. John’s J. Legal Comment. 669
, 671 (1994).
149
Id.
at 671 n.17;
see also Graft
Merriam-Webster (2015),
Id.
at 671 n.17;
see also Graft
Merriam-Webster (2015),
[http://perma.cc/R2XV-L362] (defining graft as “the acquisition of gain (as money) in dishonest or questionable ways”).
150
Caro
supra
note 1, at 390 (“Placing the Manhattan terminus at 125th Street condemned most motor…
Caro
supra
note 1, at 390 (“Placing the Manhattan terminus at 125th Street condemned most motorists . . to thus add two and a half totally unnecessary miles to their every journey over the bridge.”).
151
Id
at 301-02; McSloy,
supra
note 148, at 672 n.18.
Id
at 301-02; McSloy,
supra
note 148, at 672 n.18.
152
See, e.g.
William H. Ittelson et al., An Introduction to Environmental Psychology
348 (1974) (not…
See, e.g.
William H. Ittelson et al., An Introduction to Environmental Psychology
348 (1974) (noting that “the construction of major highways through central cities . . . fracture[s] and fragment[s] delicate social networks”); Wesley Skogan,
Fear of Crime and Neighborhood Change
, 8
Crime & Justice
203, 206 (1986) (“[F]reeway networks driven through the hearts of many American cities . . . destroyed . . . low-income, minority neighborhoods . . . .”).
153
Raymond A. Mohl
The Interstates and the Cities: Highways, Housing, and the Freeway Revolt
, Povert…
Raymond A. Mohl
The Interstates and the Cities: Highways, Housing, and the Freeway Revolt
, Poverty & Race Res. Action Council
1 (2002),
[perma.cc/ZWU6-KH6A] (“In retrospect, [this motivation] now seems apparent . . . .”).
154
Id.
at 1-2.
Id.
at 1-2.
155
See, e.g.
Gerhard Falk, Twelve Inventions Which Changed America: The Influence of Technology on A…
See, e.g.
Gerhard Falk, Twelve Inventions Which Changed America: The Influence of Technology on American Culture
26 (2013) (“Racism was also invoked, as more and more interstate and other roads were built, some of which cut through black neighborhoods. These roads did indeed displace many established communities, as critics complained of ‘White roads through black bedrooms.’”); B. Drummond Ayres, Jr.,
‘White Roads Through Black Bedrooms’
N.Y. Times
, Dec. 31, 1967, at E7 (discussing a group called N[******] Incorporated that was resisting the construction of highways through black neighborhoods in Washington D.C.).
156
See generally
Thomas J. Sugrue, The Origins of the Urban Crisis: Race and Inequality in Postwar De…
See generally
Thomas J. Sugrue, The Origins of the Urban Crisis: Race and Inequality in Postwar Detroit
(1996) (describing the extensive urban renewal efforts in Detroit and the resulting segregation of the region).
157
Lafayette Park
Mies van der Rohe Soc’y
, http://wwwmiessociety.org/legacy/projects/lafayette-park …
Lafayette Park
Mies van der Rohe Soc’y
[http://perma.cc/UST6-HQEG];
see also
Ben Cosgrove,
Mies van der Rohe: Architect of the Modern World
LIFE.com
[http://perma.cc/V38W-72LS] (describing van der Rohe, a well-known modernist architect, as the “German master” “whose work so defined his time that it’s impossible to imagine certain decades and cityscapes without his influence”).
158
John Gallagher, Op-Ed,
When Detroit Paved over Paradise: The Story of I-375
Det. Free Press
, Dec.…
John Gallagher, Op-Ed,
When Detroit Paved over Paradise: The Story of I-375
Det. Free Press
, Dec. 15, 2013,
[http://perma.cc/LJ8Z-4RWL] (“Named for the rich dark soil that French explorers first found there, the Black Bottom district in the 1940s and ‘50s housed the city’s African-American entrepreneurial class, with dozens of thriving black-owned businesses and the Paradise Valley entertainment zone, where Duke Ellington, Ella Fitzgerald and Count Basie performed.”);
see also
Mohl,
supra
note 153, at 4 (“The consequence of state and local route selection was that urban expressways could be used specifically to carry out local race, housing, and residential segregation agendas.”).
159
Carrie Da Via,
A Brief History of Detroit’s Black Bottom Neighborhood
Rogue HAA
, May 18, 2012, ht…
Carrie Da Via,
A Brief History of Detroit’s Black Bottom Neighborhood
Rogue HAA
, May 18, 2012,
[http://perma.cc/VFC2-9VU8] (“Like other urban renewal projects, significant areas of the former Black Bottom neighborhood remained vacant for over half of a decade.”).
160
John Gallagher,
No More I-375? Detroit To Study Removing Freeway in Favor of Walkable Surface Stre…
John Gallagher,
No More I-375? Detroit To Study Removing Freeway in Favor of Walkable Surface Street
Det. Free Press
, Nov. 24, 2013,
[http://perma.cc/H3DA-3B5K] (“Removing the 1960s-era freeway could sprout residential communities anew in the once-thriving historic black areas known as Black Bottom and Paradise Valley that were torn apart five decades ago by local freeway construction, the same as in cities across the nation.”).
161
Mohl,
supra
note 153, at 30.
Mohl,
supra
note 153, at 30.
162
Id
Id
163
Id.
at 32.
Id.
at 32.
164
Goebel,
supra
note 89 (noting that traversing Highway 101 to get to the east side is dangerous and…
Goebel,
supra
note 89 (noting that traversing Highway 101 to get to the east side is dangerous and involves passing through a busy intersection);
see also
George Packer,
Change the World
New Yorker
, May 27, 2013,
[http://perma.cc/9W42-2R5N] (“[P]ublic schools in poor communities—such as East Palo Alto, which is mostly cut off from the city by Highway 101—have fallen into disrepair and lack basic supplies.”).
165
Conversation with David Levy, Attorney, Baird Holm LLP, in Omaha, Neb. (Aug. 2013) (explaining tha…
Conversation with David Levy, Attorney, Baird Holm LLP, in Omaha, Neb. (Aug. 2013) (explaining that in the 1960s and 1970s, fairly transparent measures were taken to “wall off” the black community in North Omaha from the rest of the city; Sixteenth Street was a main thoroughfare connecting North Omaha to downtown, until the City allowed construction of a large hotel running from 15th Street to 17th Street that closed 16th Street at the (then) north edge of downtown; another such thoroughfare was 24th Street, until it was turned into a one-way street just north of downtown; further, a freeway was constructed that effectively bisected, and many say killed, the black community at the time). For a contemporary description of Omaha’s black neighborhoods, see
Elia Peattie
Omaha’s Black Population: The Negroes of This City – Who They Are and Where They Live
in
Impertinences: Selected Writings of Elia Peattie, a Journalist in the Gilded Age 58
(2005).
166
See
Douglas Massey & Nancy Denton, American Apartheid (1998);
see generally
Fed. Highway Admin. En…
See
Douglas Massey & Nancy Denton, American Apartheid (1998);
see generally
Fed. Highway Admin. Envtl. Justice Case Studies,
Cyprus Freeway Replacement Project
U.S. Dep’t Transp. (A
ug. 29, 2011)
[http://perma.cc/9C4J-5QZV] (noting that the decision to reconstruct a portion of I-880 in a new location after the Loma Prieta earthquake was due, in part, to considerations of the way that the highway had previously divided and isolated black communities).
167
George Rengert & John Wasilchick, Suburban Burglary: A Time and a Place for Everything
62 (1985) (…
George Rengert & John Wasilchick, Suburban Burglary: A Time and a Place for Everything
62 (1985) (noting that a Delaware turnpike cuts a community in half)
168
See
Triangle Improvement Council v. Ritchie, 402 U.S. 497, 497 (1971) (writ of certiorari dismisse…
See
Triangle Improvement Council v. Ritchie, 402 U.S. 497, 497 (1971) (writ of certiorari dismissed as improvidently granted). Interstate highways cut through Charleston, West Virginia’s primarily poor, black Triangle neighborhood despite lawsuits attempting to stop them. Plaintiffs raised claims under the Civil Rights Act and the Fourteenth Amendment.
See
Triangle Improvement Council v. Ritchie, 314 F. Supp. 20, 22-26 (S.D. W. Va. 1969).
169
See infra
Part IV.A.
See infra
Part IV.A.
170
See
Berman v. Parker, 348 U.S. 26, 33 (1954) (holding that it is within legislative power “to de…
See
Berman v. Parker, 348 U.S. 26, 33 (1954) (holding that it is within legislative power “to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled”).
171
Id.
at 33-34 (allowing exercise of eminent domain to eliminate blight in an area even though the p…
Id.
at 33-34 (allowing exercise of eminent domain to eliminate blight in an area even though the property at issue was not blighted).
172
See
Kelo v. City of New London, 545 U.S. 469, 483 (2005) (holding that the taking of private prope…
See
Kelo v. City of New London, 545 U.S. 469, 483 (2005) (holding that the taking of private property for “economic development” was a valid use of eminent domain power even though New London was “not confronted with the need to remove blight [as in
Berman
, because] . . . the area was sufficiently distressed to justify a program of economic rejuvenation”);
see, e.g.
Me. Rev. Stat. Ann
. tit. 30-A, § 5202 (2011) (defining blight);
Me. Rev. Stat. Ann
. tit. 1, § 816(2) (2006) (generally prohibiting the condemnation of land that has residential houses or commercial structures thereon, unless there has been a finding of blight and the area is covered by a redevelopment or urban renewal plan);
N.Y. Gen. Mun. Law
§ 970-b (McKinney 2012) (declaring it to be the policy of the state to promote redevelopment of blighted areas, including through the use of eminent domain);
Ohio Rev. Code Ann.
§ 163.021 (West 2007) (allowing, under certain conditions, for an agency to appropriate property it has found in a blighted area or slum)
; see also
Will Lovell, Note,
The
Kelo
Blowback: How the Newly-Enacted Eminent Domain Statutes and Past Blight Statutes Are a Maginot Line-Defense Mechanism for all Non-Affluent and Minority Property Owners
, 68
Ohio St. L.J.
609, 612 (2007) (“Because governments have retained their blight-designation powers, they may still specifically do what the recently enacted state statutes tried to prevent—take the homes of low-income households and replace them with private developments. This result has unjustly and disparately affected blacks over whites, the poor over the rich, and those with little political representation over those that are politically-connected.”).
173
See
G. Wade Walker et al.,
Downtown Streets: Are We Strangling Ourselves on One-Way Networks?
Tra…
See
G. Wade Walker et al.,
Downtown Streets: Are We Strangling Ourselves on One-Way Networks?
Transp. Res. Bd. Circular
F-2, at 4 (Dec. 2000),
[http://perma.cc/C6T7-Y9WW] (discussing the experience of the “occasional visitor” motorist in a one-way street network);
Episode 51: The Arsenal of Exclusion
supra
note 88.
174
See, e.g
., Nathaniel Hoffman,
One Way, Two Way, Yes Way, No Way
Boise Wkly.,
July 31, 2009, http:…
See, e.g
., Nathaniel Hoffman,
One Way, Two Way, Yes Way, No Way
Boise Wkly.,
July 31, 2009,
[http://perma.cc/DVK8-7QMQ] (explaining benefits of one-way streets, including that “[p]edestrian safety is improved as the pedestrian has fewer directions to be concerned about at intersections. Drivers have fewer potential conflicts to handle as well so can give more attention to pedestrian safety.”). However, there is countervailing data suggesting that two-way streets result in slower traffic, which can result in a safer environment for pedestrians.
See, e.g.
, Eric Jaffe,
The Case Against One-Way Streets
Atlantic: Citylab
(Jan. 31, 2013),
[http://perma.cc/2ZGG-TW7W] (“[S]peeds tend to be higher on one-way streets, and some studies suggest drivers pay less attention on them because there’s no conflicting traffic flow.”).
175
See Episode 51: The Arsenal of Exclusion
supra
note 88 (visiting an affluent, predominantly white…
See Episode 51: The Arsenal of Exclusion
supra
note 88 (visiting an affluent, predominantly white neighborhood in East Baltimore that uses one-way streets, dead ends, and bollards to inhibit the influx of traffic from the adjacent lower-income, predominantly black neighborhood).
176
Id.
Id.
177
Id.
Id.
178
Id.
see also
Mark Mikin,
The United States of 2012
Esquire (2015)
, http://www.esquire.com/the-si…
Id.
see also
Mark Mikin,
The United States of 2012
Esquire (2015)
[http://perma.cc/DR6K-UHH9] (“[O]f the eight streets that intersect Greenmount Avenue between 33rd Street and Cold Spring Lane, only one (39th Street) allows travel from east to west. Six of the streets are one-way pointing east (i.e., out of the wealthy, white side), and one of the streets (34th Street) thwarts westward movement with bollards.”).
179
Vikash V. Gayah,
Two-Way Street Networks: More Efficient than Previously Thought?
, 41
Access
Mag.
Vikash V. Gayah,
Two-Way Street Networks: More Efficient than Previously Thought?
, 41
Access
Mag.
10, 11 (2012),
[http://perma.cc/D6S9-TDFP] (“Downtown visitors, whether they arrive by car or public transportation, prefer two-way street networks to one-way street networks because they are less confusing. Visitors driving in a two-way grid network can easily approach their destination from any direction. A one-way network may prevent drivers from approaching their destination from the most logical direction. This uncertainty can intimidate drivers and, in some cases, make them hesitant to return.”).
180
See, e.g.
Allan R. Talbot, The Mayor’s Game: Richard Lee of New Haven and the Politics of Change
See, e.g.
Allan R. Talbot, The Mayor’s Game: Richard Lee of New Haven and the Politics of Change
112 (1967); Bill Landauer,
Easton Could Open Traffic on Fourth Street to Two Ways
Morning Call
(Pa.)
, Dec. 14, 2014,
[http://perma.cc/Z7MP-DLXS] (noting that a city street became one-way during urban renewal to “move traffic through the city more quickly”).
181
Notably, these recent conversions often require city council approval, which means there is an opp…
Notably, these recent conversions often require city council approval, which means there is an opportunity for public participation in the process.
See, e.g.
, E-mail from Judy Crites, Office Manager, City of Charleston, to Patrick Lyons, Research Assistant, Univ. of Me. Sch. of Law (Apr. 11, 2014, 10:31:00 EST) (on file with author) (describing the process of converting one-way to two-way streets and stating, “First an internal review would be done and if feasible an outside engineering consultant would be hired to perform a comprehensive traffic study. Results would be reviewed by staff and presented to the City Council Traffic and Transportation Committee at which time a public hearing on the matter would be scheduled. After the public hearing the Traffic and Transportation Committee would vote on the matter. If approved by the Traffic and Transportation Committee, it would then move forward to City Council for consideration.”).
182
According to the 2000 Census, Darien was 95.97% white, 0.04% black, and 2.19% Hispanic. Darien was…
According to the 2000 Census, Darien was 95.97% white, 0.04% black, and 2.19% Hispanic. Darien was also listed ninth in CNN’s list of “top-earning towns.” John Nickerson,
Occupy Darien Set To Begin Wednesday
Darien News
(Conn.)
, Dec. 21, 2011,
[http://perma.cc/TTZ5-ZK4L] (noting the economic status of Darien and its neighboring town);
Demographics
Town Darien,
[http://perma.cc/8XNS-VCN9].
183
Loewen
supra
note 87, at 254-55
Loewen
supra
note 87, at 254-55
184
Mark A. Stein,
Road Signs? Bolinas Voters Say ‘Read Our Lips’ Instead
L.A. Times
, Nov. 9, 1989, h…
Mark A. Stein,
Road Signs? Bolinas Voters Say ‘Read Our Lips’ Instead
L.A. Times
, Nov. 9, 1989,
[http://perma.cc/7VX7-BV84]. This appears to have been unsuccessful, as many wealthy individuals, including some celebrities, now own homes in Bolinas.
See
Aaron Britt,
Going Coastal: Is the Elusive Bohemian Enclave of Bolinas Getting a Bit Glossier?
S.F. Chron.,
Jan. 28, 2007,
[http://perma.cc/XHK7-4V37](explaining that Bolinas has seen an influx of wealthy new homeowners, including actress Frances McDormand and her filmmaker husband, Joel Coen).
185
Stein,
supra
note 184.
Stein,
supra
note 184.
186
Id
Id
187
See, e.g.
, Clay Risen,
The Cul-de-Sac Ban
N.Y. Times Mag.
, Dec. 13, 2009, http://www.nytimes.com/…
See, e.g.
, Clay Risen,
The Cul-de-Sac Ban
N.Y. Times Mag.
, Dec. 13, 2009,
[http://perma.cc/B62T-A8MT].
188
See, e.g.
Fullerton, Cal., Mun. Code
§ 8.44.230(A) (“[I]t shall be unlawful for any person to …
See, e.g.
Fullerton, Cal., Mun. Code
§ 8.44.230(A) (“[I]t shall be unlawful for any person to stand or park any vehicle on any street or portion thereof so restricted by resolution of the City Council to permit parking only during all or certain portions of the day provided signs giving notice of said restriction have been posted, unless a parking permit issued by the City is displayed on the vehicle . . . .”);
Resident Parking Program
City Bos.
[http://perma.cc/9WPH-STQ7] (“Boston’s Resident Permit Parking Program is an initiative designed to give residents a better chance of finding an on-street parking space in their neighborhood. Many of the parking spaces on Boston’s residential streets are regulated as ‘Resident Parking Only.’”).
189
For example, in Portland, Maine, the city traffic engineer has the authority to establish parking …
For example, in Portland, Maine, the city traffic engineer has the authority to establish parking regulations without requiring city council approval and thus, ostensibly, without formal public input.
Portland, Me., Code
§ 28-24(g)(1) (2013);
infra
note 302.
190
434 U.S. 5 (1977) (per curiam).
434 U.S. 5 (1977) (per curiam).
191
Id.
at 5-6.
Id.
at 5-6.
192
Id.
at 6.
Id.
at 6.
193
Id
. at 7 (“A community may also decide that restrictions on the flow of outside traffic into par…
Id
. at 7 (“A community may also decide that restrictions on the flow of outside traffic into particular residential areas would enhance the quality of life there by reducing noise, traffic hazards, and litter.”).
194
Austin,
supra
note 118, at 673.
But see
Leydon v. Town of Greenwich, 777 A.2d 552 (Conn. 2001) (al…
Austin,
supra
note 118, at 673.
But see
Leydon v. Town of Greenwich, 777 A.2d 552 (Conn. 2001) (allowing non-resident access to a municipal beach, finding it to be a traditional public forum); Austin,
supra
note 118, at 674 (“City of Dearborn[, Michigan,] had gone too far when it restricted access to two parks to residents and their guests . . . . Because of its disparate impact on blacks, the residency restriction was held to violate the provision of the Michigan Constitution prohibiting racial discrimination against individuals exercising their civil rights . . . [and the] proof of residency [requirement] violated the prohibition against unreasonable searches and seizures.”).
195
See, e.g.
A. Leon Higginbotham, Jr., Shades of Freedom: Racial Politics and Presumptions of the A…
See, e.g.
A. Leon Higginbotham, Jr., Shades of Freedom: Racial Politics and Presumptions of the American Legal Process
(1996); Richard Thompson Ford,
The Boundaries of Race: Political Geography in Legal Analysi
s, 107
Harv. L. Rev.
1841 (1994) (discussing the role of local governments in promoting racially identifiable space); Jerry Frug, Symposium,
The Geography of Community
, 48
Stan. L. Rev
. 1047, 1081-89 (1996) (describing the use of zoning and redevelopment power by municipalities to isolate communities along lines of race or socioeconomic status); Lawrence,
supra
note 14 (reconsidering the doctrine of discriminatory intent established by the 1976 decision of
Washington v. Davis
); Daniel R. Mandelker,
Racial Discrimination and Exclusionary Zoning: A Perspective on
Arlington Heights, 55
Tex. L. Rev.
1217 (1977) (examining the impact of the Fourteenth Amendment on racial exclusionary zoning and calling for legislative action).
196
Richard R W. Brooks & Carol M. Rose, Saving the Neighborhood: Racially Restrictive Covenants, Law,…
Richard R W. Brooks & Carol M. Rose, Saving the Neighborhood: Racially Restrictive Covenants, Law, and Social Norms 19
(2013).
197
J. Peter Byrne,
Are Suburbs Unconstitutional?
, 85
Geo. L.J.
2265, 2286 (1997) (reviewing
Charles M…
J. Peter Byrne,
Are Suburbs Unconstitutional?
, 85
Geo. L.J.
2265, 2286 (1997) (reviewing
Charles M. Haar, Suburbs Under Siege: Race, Space, and Audacious Judges
(1996) and
David L. Kirp, John P. Dwyer & Larry A. Rosenthal
Our Town: Race, Housing, and The Soul of Suburbia
(1995)) (discussing the role of the courts in addressing “the persistent use of the law by the affluent to exclude the poor and minorities from their communities”).
198
Ellickson et al
supra
note 70, at 725-810. Another comparison that could be made is that of physi…
Ellickson et al
supra
note 70, at 725-810. Another comparison that could be made is that of physical segregation of the races in contexts other than housing under the Jim Crow laws in the early 1900s.
See generally
Brooks & Rose
supra
note 196, at 26 (describing separation in public and commercial common spaces, including public transportation); Robert R. Weyeneth,
The Architecture of Racial Segregation: The Challenges of Preserving the Problematical Past
, 27
Pub. Historian
, 11, 13 (2005) (examining the spatial system of racial segregation in the U.S. and stating that “[t]he architecture of racial segregation represented an effort to design places that shaped the behavior of individuals and, thereby, managed contact between whites and blacks”). The Supreme Court upheld the validity of “equal but separate” public transportation facilities in
Plessy v. Ferguson
in 1896, after which time Southern states expanded segregation in a variety of public spaces. Plessy v. Ferguson, 163 U.S. 537 (1896);
Brooks & Rose
supra
note 196, at 27. This resulted in the use of architecture to separate the races in two ways: “
isolation
and
partitioning
.” Weyeneth,
supra
, at 12.
199
Ross & Leigh,
supra
note 45, at 372 (describing the use of racial zoning to “exclude undesirable…
Ross & Leigh,
supra
note 45, at 372 (describing the use of racial zoning to “exclude undesirable groups from entering” upscale communities).
See generally
Garrett Power,
Apartheid Baltimore Style: The Residential Segregation Ordinances of 1910-1913
, 42
Md. L. Rev
. 289 (1983).
200
David E. Bernstein,
Philip Sober Controlling Philip Drunk:
Buchanan v. Warley
in Historical Perspe…
David E. Bernstein,
Philip Sober Controlling Philip Drunk:
Buchanan v. Warley
in Historical Perspective
, 51
Vand. L. Rev
. 797, 835 (1998); Power,
supra
note 199 at 298-300. An even earlier example came from San Francisco.
See In re
Lee Sing, 43 F. 359, 359 (C.C.N.D. Cal. 1890) (describing San Francisco’s earlier ordinance that confined Chinese people to a certain part of the city).
201
Christopher Silver & John V Moeser, The Separate City: Black Communities in the Urban South, 1940-…
Christopher Silver & John V Moeser, The Separate City: Black Communities in the Urban South, 1940-1968,
at 21 (1995).
202
Id
. The Georgia Supreme Court originally deemed the ordinance—which applied retroactively—viol…
Id
. The Georgia Supreme Court originally deemed the ordinance—which applied retroactively—violative of due process for infringing on the right of an individual to “acquire, enjoy, and dispose of his property.” Carey v. City of Atlanta, 84 S.E. 456, 460 (Ga. 1915);
see also
State v. Darnell, 81 S.E. 338, 340 (N.C. 1914) (striking down Winston-Salem’s racial zoning ordinance because it interfered with “the fundamental right of every one to acquire and dispose of property by sale”).
But see
Hopkins v. City of Richmond, 86 S.E. 139, 148 (Va. 1915) (upholding Richmond’s racial zoning ordinance and holding that “the town council . . . had full authority . . . to pass an ordinance providing for separate residences for white and colored people within its limits, that the ordinance passed was a reasonable exercise of this power, and that it does not conflict with the fourteenth amendment”). Yet once Atlanta’s ordinance was amended to “exclude[] from its operation vested rights existing at the time of its adoption,” that court upheld its constitutionality. Harden v. City of Atlanta, 93 S.E. 401, 402-03 (Ga. 1917),
overruled by
Lee v. Warnock, 96 S.E. 385 (Ga. 1918) (“Segregation is not imposed as a stigma upon either race, but in order to uphold the integrity of each race and to prevent conflicts between them resulting from close association. An ordinance designed to accomplish this purpose will be upheld, notwithstanding that to some extent the use of property may be somewhat restricted . . . .”).
203
Hopkins
, 86 S.E. at 144
; see also
Buchanan v. Warley, 245 U.S. 60, 73-74 (1917) (“It is said suc…
Hopkins
, 86 S.E. at 144
; see also
Buchanan v. Warley, 245 U.S. 60, 73-74 (1917) (“It is said such legislation tends to promote the public peace by preventing racial conflicts; that it tends to maintain racial purity; that it prevents the deterioration of property owned and occupied by white people . . . .”).
204
Christopher Silver,
The Racial Origins of Zoning in American Cities
in
Urban Planning and the Afr…
Christopher Silver,
The Racial Origins of Zoning in American Cities
in
Urban Planning and the African American Community: In the Shadows 23, 27
(June Manning Thomas & Marsha Ritzdorf eds., 1997) (quoting Baltimore Mayor J. Barry Mahool).
205
David Pilgrim,
What Was Jim Crow?
Ferris State U. Jim Crow Museum Racist Memorabilia (
Sept. 2000)
David Pilgrim,
What Was Jim Crow?
Ferris State U. Jim Crow Museum Racist Memorabilia (
Sept. 2000)
[http://perma.cc/T4JR-Y57J].
206
245 U.S. at 82 (holding that the “attempt to prevent the alienation of the property in question …
245 U.S. at 82 (holding that the “attempt to prevent the alienation of the property in question to a person of color was not a legitimate exercise of the police power of the State” and thus violated the Due Process Clause of the Fourteenth Amendment).
207
See id.
(“We think this attempt to prevent the alienation of the property in question to a perso…
See id.
(“We think this attempt to prevent the alienation of the property in question to a person of color was not a legitimate exercise of the police power of the state, and is in direct violation of the fundamental law enacted in the Fourteenth Amendment of the Constitution preventing state interference with property rights except by due process of law.”).
208
See
Joel Kosman,
Toward an Inclusionary Jurisprudence: A Reconceptualization of Zoning,
43
Cath. U…
See
Joel Kosman,
Toward an Inclusionary Jurisprudence: A Reconceptualization of Zoning,
43
Cath. U. L. Rev.
59, 76 (1993) (“The Court’s finding disregarded the more pernicious effect of the ordinance—the exclusion of an unempowered group, not merely from buying or selling property, but from the opportunity to ascend to social and economic levels already claimed by the empowered group.”).
209
Silver & Moeser
supra
note 201, at 21-22;
see also
Boddie,
supra
note 57, at 428 n161 (recognizin…
Silver & Moeser
supra
note 201, at 21-22;
see also
Boddie,
supra
note 57, at 428 n161 (recognizing that racial zoning “continued with some force for decades thereafter”). For example, Robert Whitten, who drafted many early zoning ordinances and comprehensive plans, proposed a post-
Buchanan
plan, cast in the language and context of comprehensive planning, that zoned Atlanta so as to expressly separate residential districts by race.
See
LeeAnn Lands,
The Culture of Property: Race, Class, and Housing Landscapes in Atlanta
, 1880-1950, at 143 (2011) (describing Whitten’s work with zoning codes in New York and Cleveland).
210
See, e.g.
, Harmon v. Tyler, 273 U.S. 668, 668 (1927) (invalidating a New Orleans, Louisiana ordina…
See, e.g.
, Harmon v. Tyler, 273 U.S. 668, 668 (1927) (invalidating a New Orleans, Louisiana ordinance),
rev’g
Tyler v. Harmon, 104 So. 200 (La. 1927); City of Richmond v. Deans, 37 F.2d 712, 713 (4th Cir. 1930) (invalidating a Richmond, Virginia ordinance),
aff’d
, 281 U.S. 704 (1930); Allen v. Oklahoma City, 52 P.2d 1054 (Okla. 1935) (invalidating an Oklahoma City ordinance); Smith v. City of Atlanta, 132 S.E. 66 (Ga. 1926);
see also
Ellickson et al.
supra
note 70, at 93 (discussing a racial zoning ordinance in Ohio that was struck down);
Silver & Moeser
supra
note 201, at 22 (“It was a widely held tenet of planning in the 1920s that controlled growth of black neighborhoods was necessary to produce a socially better city. Even though the explicit racial designations in the city’s zoning plan had to be removed, the ‘controlled segregation’ objective of race-based planning guided public policy and private real estate decisions in Atlanta over the ensuing decades.”); Bruno Lasker,
The Atlanta Zoning Plan
, 48 Survey
114, 114-115 (Apr. 22, 1922).
211
Silver & Moeser
supra
note 201, at 22 (“Even without the powerful legal tool of zoning, white a…
Silver & Moeser
supra
note 201, at 22 (“Even without the powerful legal tool of zoning, white and black Atlantans proved adept at guiding the process of black residential growth in conformity with the prescription in the 1922 plan through the use of deed restrictions and an assortment of racially sensitive real estate practices”);
see also
E. Bernard West, Black Atlanta—Struggle for Development: 1915-1925, at 25-48 (May 1976) (unpublished M.A. thesis, Atlanta University),
[http://perma.cc/W2EH-GRF6] (examining the numerous obstacles blocking black Atlanta’s development).
212
Kevin Fox Gotham,
Urban Space, Restrictive Covenants and the Origins of Racial Segregation in a US…
Kevin Fox Gotham,
Urban Space, Restrictive Covenants and the Origins of Racial Segregation in a US City, 1900-50
, 24
Int’l J. Urb. & Regional Res.
616 (2000) (
using a case study of Kansas City, Missouri, to examine efforts undertaken by community builders and homeowner associations who used racially restrictive covenants to create racially homogeneous neighborhoods).
213
See, e.g.
Brooks & Rose
supra
note 196, at 55;
see also
Shelley Ross Saxer, Shelley v. Kraemer
See, e.g.
Brooks & Rose
supra
note 196, at 55;
see also
Shelley Ross Saxer, Shelley v. Kraemer
’s Fiftieth Anniversary: “A Time for Keeping; A Time for Throwing Away”?
, 47
U. Kan. L. Rev.
61 (1998) (arguing for alternatives to fighting private racial discrimination beyond state action theory).
214
Gotham,
supra
note 212
, at 617.
Gotham,
supra
note 212
, at 617.
215
271 U.S. 323 (1926).
271 U.S. 323 (1926).
216
Id.
at 330-31. In discussing strategy before the appeal to the Supreme Court, some urged the NAACP…
Id.
at 330-31. In discussing strategy before the appeal to the Supreme Court, some urged the NAACP to argue that court enforcement of the covenants was effectively state action and thus unconstitutional (the argument that would, twenty years later, win over the court).
See
Stephen Grant Meyer, As Long as They Don’t Move Next Door: Segregation and Racial Conflict in American Neighborhoods 46
(2001) (describing the strategy suggested by NAACP lawyer Louis Marshall). However, the NAACP instead focused on an argument that the covenants constituted a violation of the Civil Rights Act of 1866 and resulted in disease, crime, and overcrowding.
Id.
at 46;
cf.
Brooks & Rose
supra
note 196, at 55 (asserting that the NAACP continuously used the state action line of argument in all cases up to and including
Shelley v. Kramer
).
See generally
Clement E. Vose, Caucasians Only: The Supreme Court, the NAACP, and the Restrictive Covenant Cases
(1959).
217
Brooks & Rose
supra
note 196, at 211 (discussing the “respectable legal form” of racially res…
Brooks & Rose
supra
note 196, at 211 (discussing the “respectable legal form” of racially restrictive covenants)
218
Id.
at 212.
Id.
at 212.
219
One author cites a string of twelve law review articles, three student notes, and one book that we…
One author cites a string of twelve law review articles, three student notes, and one book that were written in the aftermath of the
Corrigan
case questioning its holding.
See
Vose,
supra
note 216, at 275 n.45.
220
Brooks & Rose
supra
note 196, at 55-56 (discussing concerns of real estate developers and their a…
Brooks & Rose
supra
note 196, at 55-56 (discussing concerns of real estate developers and their attorneys)
221
Id.
at 56;
see also
Kemp v. Rubin, 69 N.Y.S.2d 680, 685 (Sup. Ct. 1947) (“Such a covenant has be…
Id.
at 56;
see also
Kemp v. Rubin, 69 N.Y.S.2d 680, 685 (Sup. Ct. 1947) (“Such a covenant has been held not to be an unlawful restraint upon alienation.”).
But see
L.A. Inv. Co. v. Gary, 186 P. 596, 597 (Cal. 1919).
222
334 U.S. 1 (1948).
334 U.S. 1 (1948).
223
Shelley
, 334 U.S. at 20.
Shelley
, 334 U.S. at 20.
224
For example, the federal Fair Housing Act of 1968 prohibits discrimination on the basis of race (a…
For example, the federal Fair Housing Act of 1968 prohibits discrimination on the basis of race (as well as religion, gender, national origin, and, now, disability) with respect to sale and rental of most property, and prohibits the creation of racial covenants. 42 U.S.C. § 3604 (2012).
225
Brooks & Rose
supra
note 196, at 228 (describing California and Missouri laws);
Cal Civ. Code
§…
Brooks & Rose
supra
note 196, at 228 (describing California and Missouri laws);
Cal Civ. Code
§§ 12955(l), 6606 (West 2014);
Mo. Rev. Stat
. § 213.041 (2014).
226
The idea behind large-lot zoning is that poor people will not be able to afford to build or buy a …
The idea behind large-lot zoning is that poor people will not be able to afford to build or buy a house on such a large lot. Occupancy restrictions might limit the number of bedrooms permitted in a structure, which effectively keeps out larger families.
See
Lawrence Gene Sager,
Tight Little Islands: Exclusionary Zoning, Equal Protection, and the Indigent
, 21
Stan. L. Rev
. 767, 767 (1969) (describing exclusionary zoning as “zoning that raises the price of residential access to a particular area, and thereby denies that access to members of low-income groups”); Byrne,
supra
note 197, at 2265 n.2 (“‘Exclusionary zoning’ generally refers to zoning laws that aim for a social effect.”).
227
Using the ideas concerning “intersectionality” as a basis, this Article considers the impact t…
Using the ideas concerning “intersectionality” as a basis, this Article considers the impact that exclusion has on both socioeconomically disadvantaged individuals and people of color.
See generally
Leslie McCall,
The Complexity of Intersectionality
, 30
Signs
1771, 1782 (2005) (“Although broad racial, national, class, and gender structures of inequality have an impact and must be discussed, they do not determine the complex texture of day-to-day life for individual members of the social group under study, no matter how detailed the level of disaggregation.”). Of course, courts apply different levels of scrutiny to race and class, but they cannot be separated in this discussion, as “economic segregation is not only the easiest but also the most effective form of racial and ethnic segregation.” Williams,
supra
note 17, at 330;
see also
Wayne Batchis,
Suburbanization and Constitutional Interpretation: Exclusionary Zoning and the Supreme Court Legacy of Enabling Sprawl
8 Stan. J. C.R. & C.L.
1, 37 (2012) (“Wealth and race share an unfortunate correlation in America; and while the relationship is not as strong as it once was, minorities in America are still saddled with a disproportionate share of poverty and economic despair.”); Byrne,
supra
note 197, at 2277 (“Although it is sometimes asserted that exclusionary practices result merely from the pursuit of economic self-interest by suburban residents, the history of suburban expansion makes the conclusion that it is also driven by a desire for racial isolation inescapable.”).
228
Ross & Leigh,
supra
note 45, at 373 (describing these types of zoning ordinances that have exclusi…
Ross & Leigh,
supra
note 45, at 373 (describing these types of zoning ordinances that have exclusionary effects).
229
Byrne,
supra
note 197
, at 2277.
Byrne,
supra
note 197
, at 2277.
230
Suburbanites “fear that when poor people move next door crime, drugs, blight, bad public schools…
Suburbanites “fear that when poor people move next door crime, drugs, blight, bad public schools and higher taxes inevitably follow. They worry that the value of their homes will fall and the image of their town will suffer. It does not help that the poor are disproportionately black and Latino.” David L. Kirp, Op-Ed
Here Comes the Neighborhood
N.Y. Times
, Oct. 19, 2013,
[http://perma.cc/A82U-3AAS]. Regardless of the motivation, the results are still exclusionary.
231
Strahilevitz,
supra
note 59, at 465-66 (describing exclusionary zoning as “well documented and w…
Strahilevitz,
supra
note 59, at 465-66 (describing exclusionary zoning as “well documented and widely practiced”).
232
City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 192 (2003).
City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 192 (2003).
233
See, e.g.
, Batchis,
supra
note 227
(discussing the relationship between exclusionary zoning and ur…
See, e.g.
, Batchis,
supra
note 227
(discussing the relationship between exclusionary zoning and urban sprawl);
Byrne,
supra
note 197
(examining exclusionary zoning in the context of the
Mount Laurel
decisions); Sager,
supra
note 226
(examining the application of the Equal Protection Clause to exclusionary zoning);
see also
Ross & Leigh,
supra
note
45
at 372-73 (discussing exclusionary zoning’s role in racial segregation).
234
See
Gary S. Becker & Kevin M. Murphy, Social Economics: Market Behavior in a Social Environment
72…
See
Gary S. Becker & Kevin M. Murphy, Social Economics: Market Behavior in a Social Environment
72 (2000) (“Such hidden discrimination is hard to detect.”).
235
But see
Ellickson et al.
supra
note 70, at 741 (“In the early 1970s, several federal courts app…
But see
Ellickson et al.
supra
note 70, at 741 (“In the early 1970s, several federal courts applied the Equal Protection Clause to exclusionary zoning practices that stopped short of drawing explicitly racial classifications. . . . Soon thereafter, however, the Equal Protection Clause ceased to be a viable weapon against exclusionary, but not explicitly racial, land use controls.” (internal citations omitted)). Exclusionary zoning has been found to violate some state constitutions, and some states have attempted to curb it through legislation.
See, e.g.
Cal. Gov’t Code
§§ 65300, 65302 (West 2014) (requiring a housing element as part of comprehensive planning);
Or. Rev. Stat.
§ 197.312 (2013) (preventing local governments from disallowing in residential zones “attached or detached single-family housing, multifamily housing for both owner and renter occupancy or manufactured homes”); S. Burlington Cnty. NAACP v. Township of Mount Laurel, 336 A.2d 713 (N.J. 1975),
appeal dismissed & cert. denied
, 423 U.S. 808 (1975); Harold A. McDougall,
From Litigation to Legislation in Exclusionary Zoning Law
, 22
Harv. C.R.-C.L. L. Rev
. 623 (1987). However, it is still quite common in much of the country. Rolf Pendall,
Local Land Use Regulation and the Chain of Exclusion
, 66
J. Am. Plan. Ass’n
125 (2000) (determining that low-density, exclusionary zoning resulted in fewer rental housing units, and thus fewer residents of color); Jonathan Rothwell & Douglas S. Massey,
The Effect of Density Zoning on Racial Segregation in U.S. Urban Areas
, 44
Urb. Aff. Rev.
779 (2009) (finding a significant relationship between low-density zoning and racial segregation).
236
See
McDougall,
supra
note 235, at 623-24 (“The entry barriers to federal litigation on exclusion…
See
McDougall,
supra
note 235, at 623-24 (“The entry barriers to federal litigation on exclusionary zoning matters, as established by the United States Supreme Court, are quite high . . . .”). While racial animus might be behind many exclusionary zoning decisions, most elected officials know not to mention it in the context of a public meeting or to use it as a justification for the decision.
See, e.g.,
Byrne,
supra
note 197, at 2277;
see also
Yick Wo v. Hopkins, 118 U.S. 356 (1886) (suggesting that it is not difficult for governments to shield bad motivations behind legitimate reasons). Thus, although race is a suspect classification, it is typically difficult to establish that an exclusionary decision was race-based.
237
Lindsey v. Normet, 405 U.S. 56, 74 (1972).
Lindsey v. Normet, 405 U.S. 56, 74 (1972).
238
San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 17-18 (1973).
San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 17-18 (1973).
239
Village of Belle Terre v. Boraas, 416 U.S. 1 (1974);
see also
Associated Home Builders, Inc. v. Ci…
Village of Belle Terre v. Boraas, 416 U.S. 1 (1974);
see also
Associated Home Builders, Inc. v. City of Livermore, 557 P.2d 473 (Cal. 1976) (discussing an exclusionary zoning ordinance and stating that “[b]oth the United States Supreme Court and this court have refused to apply the strict constitutional test to legislation, such as the present ordinance, which does not penalize travel and resettlement but merely makes it more difficult for the outsider to establish his residence in the place of his choosing”).
But see
City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 450 (1985) (applying rational basis review and striking down a zoning ordinance that prohibited group homes for mentally disabled individuals as violative of the Equal Protection Clause because the ordinance was based on “irrational prejudice” against the mentally retarded); Richard Fielding,
The Right to Travel: Another Constitutional Standard for Local Land Use Regulation?
, 39 U.
Chi. L. Rev.
612 (1972) (suggesting that exclusionary zoning violated the freedom of travel of prospective residents).
240
Sager,
supra
note 226, at 782.
Sager,
supra
note 226, at 782.
241
Id
. at 767 (writing in 1969, and noting that, at that time, exclusionary zoning was “a problem t…
Id
. at 767 (writing in 1969, and noting that, at that time, exclusionary zoning was “a problem that has thus far been ignored by the Supreme Court”). The Court finally spoke to the issue, at least generally, in 1977 in
Village of Arlington Heights v. Metropolitan Housing Development Corp.
, 429 U.S. 252 (1977).
242
429 U.S. 252 (1977).
429 U.S. 252 (1977).
243
Id
. at 265;
see also
Ellickson et al.
supra
note 70, at 763.
Id
. at 265;
see also
Ellickson et al.
supra
note 70, at 763.
244
426 U.S. 229, 239 (1976) (holding that even if a “law or other official act” has a racially di…
426 U.S. 229, 239 (1976) (holding that even if a “law or other official act” has a racially discriminatory effect, the plaintiff must also show that there was a discriminatory intent in order to prevail in an equal protection case).
245
See, e.g
., Theodore Eisenberg & Sheri Lynn Johnson,
The Effects of Intent: Do We Know How Legal St…
See, e.g
., Theodore Eisenberg & Sheri Lynn Johnson,
The Effects of Intent: Do We Know How Legal Standards Work?
, 76
Cornell L. Rev.
1151, 1152 (1991) (finding that intent cases are rarely litigated, and stating, “[t]he Court in
Davis
disparaged the importance of demonstrated, racially disproportionate effects, prompting a flurry of criticism that continues. This criticism assumes that an intent standard will rarely be satisfied and that, while it governs, many racial wrongs will remain unproven and therefore unrighted”); Lawrence,
supra
note 14, at 319 (“Improper motives are easy to hide. And because behavior results from the interaction of a multitude of motives, governmental officials will always be able to argue that racially neutral considerations prompted their actions.”); Catharine A. MacKinnon,
Disputing Male Sovereignty: On
United States v. Morrison, 114
Harv. L. Rev
. 135, 137 (2000) (noting that with respect to “the Court’s equal protection jurisprudence—the ‘intent’ requirement [] has made it increasingly difficult to hold states responsible for equal protection violations committed by state actors”); Michael Selmi,
Proving Intentional Discrimination: The Reality of Supreme Court Rhetoric
, 86
Geo.
L.J. 279, 309 (1997) (describing “[t]he Court’s demanding standard for identifying acts of intentional discrimination”); Daniel P. Tokaji,
First Amendment Equal Protection: On Discretion, Inequality, and Participation
, 101
Mich. L. Rev
. 2409, 2454 (2003) (“[I]n cases stretching from
Milliken v. Bradley
through
Washington v. Davis
. . . the Court has—in most though not all contexts—made it increasingly difficult to prove discriminatory intent[.]”).
246
In
Arlington Heights
, the Court recognized that intent could be shown through circumstantial evide…
In
Arlington Heights
, the Court recognized that intent could be shown through circumstantial evidence, including “historical background of the decision,” a “specific sequence of events” leading up to the decision being challenged, “[d]epartures from the normal procedural [and substantive] sequence,” and legislative and administrative history. 429 U.S. at 267-68.
247
451 U.S. 100 (1981).
451 U.S. 100 (1981).
248
Justice Marshall recognized this in his dissent, stating that “[t]his case is easier than the ma…
Justice Marshall recognized this in his dissent, stating that “[t]his case is easier than the majority makes it appear. Petitioner city of Memphis, acting at the behest of white property owners, has closed the main thoroughfare between an all-white enclave and a predominantly Negro area of the city. The stated explanation for the closing is of a sort all too familiar: ‘protecting the safety and tranquility of a residential neighborhood’ by preventing ‘undesirable traffic’ from entering it. Too often in our Nation’s history, statements such as these have been little more than code phrases for racial discrimination. These words may still signify racial discrimination, but apparently not, after today’s decision, forbidden discrimination.”
Greene
, 451 U.S. at 135-36 (Marshall, J., dissenting).
249
To the extent that a claim concerns discrimination in the context of housing, a plaintiff might ha…
To the extent that a claim concerns discrimination in the context of housing, a plaintiff might have an easier time succeeding with a claim under the Fair Housing Act (FHA), 42 U.S.C. §§ 3601-3619 (2012). There, one need only prove the discriminatory
effects
of a housing program or decision on a minority group.
See, e.g.
, Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 936 (2d Cir. 1988) (agreeing with the Seventh and Third Circuits that a defendant must show that their actions furthered a legitimate government interest and that no alternative would serve that interest with less discriminatory effect); Village of Arlington Heights v. Metro. Hous. Dev. Corp., 558 F.2d 1283, 1290 (7th Cir. 1977) [hereinafter
Arlington Heights II
] (holding that “a showing of discriminatory effect without a showing of discriminatory intent” is under some circumstances sufficient to establish a violation of section 3604(a)). The Supreme Court will take up the issue this term. Inclusive Communities Project, Inc. v. Tex. Dept. of Hous. and Cmty. Affairs, 747 F.3d 275, 282 (5th Cir. 2014),
cert. granted
, 82 U.S.L.W. 3686 (U.S. Oct. 2, 2014) (No. 13-1371).
250
416 U.S. 1 (1974).
416 U.S. 1 (1974).
251
Id
. at 7.
Id
. at 7.
252
Under the rational basis test, the government must offer only a legitimate governmental interest. …
Under the rational basis test, the government must offer only a legitimate governmental interest. Such review rarely leads to the invalidation of the law because it is relatively easy for the government to show some legitimate purpose, and courts are highly deferential to the government’s justifications.
See
Erwin Chemerinsky, Constitutional Law
718 (4th ed. 2013) (“There is a strong presumption in favor of laws that are challenged under the rational basis test.”(citing McGowan v. Maryland, 366 U.S. 420, 425-426 (1961))).
See generally id
. at 717-40 (offering a detailed discussion of rational basis review).
253
“[T]he [
Memphis v. Greene
] Court saw the city’s decision as justified by the importance of discr…
“[T]he [
Memphis v. Greene
] Court saw the city’s decision as justified by the importance of discretion to local governments, specifically noting that local governments need ‘wide discretion’ in making the policy decisions that govern traffic patterns.” Selmi,
supra
note 245, at 308 (quoting
Greene
, 451 U.S. at 126).
254
Taken together: (a) proving intent is extremely difficult; (b) not all architectural exclusion is …
Taken together: (a) proving intent is extremely difficult; (b) not all architectural exclusion is exclusion based on race (much of it is based on class, though intersectionality suggests that the two are often related); and (c) not every instance of architectural exclusion is intentional. But to the extent an architectural decision has discriminatory or exclusionary effects, that should be enough for the courts to take notice, as it is still pernicious.
See, e.g.,
Lawrence,
supra
note 14, at 319 (“[T]he injury of racial inequality exists irrespective of the decisionmakers’ motives. . . . Are blacks less prisoners of the ghetto because the decision that excludes them from an all-white neighborhood was made with property values and not race in mind?”).
255
Some states, however, have adopted statutes that address exclusionary zoning by encouraging or pro…
Some states, however, have adopted statutes that address exclusionary zoning by encouraging or promoting affordable housing.
See, e.g.,
New Jersey Fair Housing Act of 1985,
N.J. Stat. Ann.
§§ 52:27d-301 to -329.19 (West 2013) (creating an administrative agency responsible for determining regional need for low-income housing);
Cal. Gov’t Code
§ 65300 (West 2013) (requiring comprehensive plans with a housing element); The Massachusetts Low and Moderate Income Housing Act,
Mass. Gen. Laws
ch. 40B, §§ 20-23 (2013) (providing incentives to developers who reserve a portion of their constructed units for low- and moderate-income households).
See generally
Rachel G. Bratt,
Overcoming Restrictive Zoning for Affordable Housing in Five States: Observations for Massachusetts
Citizens’ Housing & Plan. Ass’n
(2012),
[http://perma.cc/9ALZ-FP33].
256
Byrne,
supra
note 197, at 2266 (“No state has statutorily barred exclusionary zoning, nor have m…
Byrne,
supra
note 197, at 2266 (“No state has statutorily barred exclusionary zoning, nor have many state courts expressed any apprehension about it. A few states have hedged the practice with restrictions, or offered limited remedies to the excluded. And then there is New Jersey.” (footnote omitted)).
257
S. Burlington Cnty. NAACP v. Township of Mount Laurel (
Mount Laurel I
), 336 A.2d 713 (N.J. 1975). …
S. Burlington Cnty. NAACP v. Township of Mount Laurel (
Mount Laurel I
), 336 A.2d 713 (N.J. 1975). Byrne mentions a few other courts that have considered exclusionary zoning: “Britton v. Town of Chester, 595 A.2d 492 (N.H. 1991) (relying in part on
Mount Laurel
cases to require in New Hampshire a builder’s remedy less stringent than that in New Jersey); Township of Willistown v. Chesterdale Farms, Inc., 341 A.2d 466 (Pa. 1975) (relying in part on
Mount Laurel I
to find a Pennsylvania township zoning ordinance that provided for apartment construction on only 80% of the 11,589 acres in the township unconstitutionally exclusionary).” Byrne,
supra
note 197, at 2266 n.4;
see also
Nat’l Land & Inv. Co. v. Kohn, 215 A.2d 597, 613 (Pa. 1965) (holding large minimum lot size to be unconstitutional);
cf.
Appeal of Kravitz, Inc., 460 A.2d 1075, 1082 (Pa. 1983) (upholding an ostensibly exclusionary zoning ordinance because locality was not a place where future development was logical).
258
S. Burlington Cnty. NAACP v. Township of Mount Laurel (
Mount Laurel II
), 456 A.2d 390 (N.J. 1983).
S. Burlington Cnty. NAACP v. Township of Mount Laurel (
Mount Laurel II
), 456 A.2d 390 (N.J. 1983).
259
See
Mount Laurel I
, 336 A.2d at 725-28.
See
Mount Laurel I
, 336 A.2d at 725-28.
260
Byrne,
supra
note 197, at 2271.
Byrne,
supra
note 197, at 2271.
261
Mount Laurel I
, 336 A.2d at 724.
Mount Laurel I
, 336 A.2d at 724.
262
Id
. Of course, “economic segregation is not only the easiest but also the most effective form of…
Id
. Of course, “economic segregation is not only the easiest but also the most effective form of racial and ethnic segregation . . . .” Williams,
supra
note 17, at 330.
263
Although its implementation has taken an extremely long time, analysis suggests that it has been w…
Although its implementation has taken an extremely long time, analysis suggests that it has been widely successful.
See, e.g.
, Kirp,
supra
note 230 (noting that the housing development was not approved until 1997, and was not built until 2000, but that “this affordable housing has had zero impact on the affluent residents of that community—crime rates, property values and taxes have moved in step with nearby suburbs—while the lives of the poor and working-class families who moved there have been transformed” (citing
Douglas S. Massey et. al
Climbing Mount Laurel: The Struggle for Affordable Housing and Social Mobility in an American Suburb
(2013) (positively evaluating the Ethel Lawrence Homes, the affordable housing project in Mt. Laurel))).
264
See, e.g.
Ellickson et al.
supra
note 70, at 778 (“Most state courts continue to attach a pres…
See, e.g.
Ellickson et al.
supra
note 70, at 778 (“Most state courts continue to attach a presumption of validity even to municipal land use controls that admittedly exclude lower-cost housing (absent evidence of a racially discriminatory purpose) . . . .”).
265
See, e.g.
, Erin Durkin,
City Plans To Attack Economic Segregation by Moving Poor into Middle-Class…
See, e.g.
, Erin Durkin,
City Plans To Attack Economic Segregation by Moving Poor into Middle-Class Neighborhoods, Richer into Poverty Spots
N.Y. Daily News
, May 21, 2014,
[http://perma.cc/3E5M-B3XG] (noting that the New York City Council housing chairman “anticipated some resistance [to the plan to build affordable housing in wealthy areas] from affluent New Yorkers unhappy about low-income developments in their neighborhoods . . . .”).
266
For more on Jim Crow laws, see
supra
note 198.
For more on Jim Crow laws, see
supra
note 198.
267
See
Boddie,
supra
note 57, at 413;
see also
Michael Selmi
, Proving Intentional Discrimination: The…
See
Boddie,
supra
note 57, at 413;
see also
Michael Selmi
, Proving Intentional Discrimination: The Reality of Supreme Court Rhetoric
, 86
Geo. L.J.
279, 286 (1997) (analyzing “the Court’s reluctance to see discrimination in any but the most obvious situations”).
268
See
Batchis,
supra
note 227, at 40 (“The Court’s trajectory on zoning matters would thus seem …
See
Batchis,
supra
note 227, at 40 (“The Court’s trajectory on zoning matters would thus seem unlikely to change in the foreseeable future.”).
269
See
Leonard S. Rubinowitz & Imani Perry, Book Review Essay,
Crimes Without Punishment: White Neigh…
See
Leonard S. Rubinowitz & Imani Perry, Book Review Essay,
Crimes Without Punishment: White Neighbors’ Resistance to Black Entry
, 92
J. Crim. L. & Criminology
335, 375 (2002) (“The social norms of residential racial segregation were at the core of the structure of twentieth century racial subordination.”).
But see
Massey & Denton,
supra
note 166, at 30-31, 51 (noting that racial segregation was much less common before the 1910s and suggesting that federal programs exacerbated the norm of segregation).
270
Brooks & Rose
supra
note 196, at 212
Brooks & Rose
supra
note 196, at 212
271
Id.
at 19 (“[I]t took some time before white claims to own the neighborhoods moved beyond inform…
Id.
at 19 (“[I]t took some time before white claims to own the neighborhoods moved beyond informal measures . . . and jelled into the legal form of racially restrictive covenants.”).
272
Rubinowitz & Perry,
supra
note 269, at 375.
Rubinowitz & Perry,
supra
note 269, at 375.
273
James W Loewen, Sundown Towns: A Hidden Dimension of American Racism
228-79 (2005). For example: …
James W Loewen, Sundown Towns: A Hidden Dimension of American Racism
228-79 (2005). For example:
In Syracuse, Ohio . . . no Negro is permitted to live, not even to stay overnight under any consideration. This is an absolute rule in this year 1905, and has existed for several generations. The enforcement of this unwritten law is in the hands of the boys from 8 to 20 years of age . . . [.]
Id.
at 228 (quoting
For White Men Only
Fairmont Free Press
(W. Va.)
, Dec. 7, 1905).
Some working-class or multiclass sundown suburbs have passed ordinances requiring teachers, firefighters, police officers, and other city workers to live within their corporate limits. Thus they can be assured that all their employees will be white. . . . In turn, African Americans are ineligible to be hired for future openings, since they would first have to move in to be considered.
Id.
at 253.
274
Brooks & Rose
supra
note 196, at 23 (noting that “informal and illegal violence and threats rem…
Brooks & Rose
supra
note 196, at 23 (noting that “informal and illegal violence and threats remained as powerful constraints”);
Loewen,
supra
note 273, at 257-77;
Meyer
supra
note 216, at 14 (“Anxious whites used violence and intimidation to keep African Americans off their blocks Blacks saw their homes bombed or stoned.”).
275
Ruth Thompson-Miller et al, Jim Crow’s Legacy: The Lasting Impact of Segregation
4 (2015).
Ruth Thompson-Miller et al, Jim Crow’s Legacy: The Lasting Impact of Segregation
4 (2015).
276
Hidden Village, LLC v. City of Lakewood, 734 F.3d 519, 526 (6th Cir. 2013) (“[A] jury could conc…
Hidden Village, LLC v. City of Lakewood, 734 F.3d 519, 526 (6th Cir. 2013) (“[A] jury could conclude that the officials targeted the organization’s black members in particular . . . . [A]lthough the program had white clients, none of them reported police harassment to [the director]; all complaints of police harassment came from black clients.”).
277
See, e.g.
, Schindler,
supra
note 36, at 425 (noting that, in the context of land use, “legal int…
See, e.g.
, Schindler,
supra
note 36, at 425 (noting that, in the context of land use, “legal intervention into architecture . . . all but guarantees that there are no pure design solutions”).
278
Strahilevitz recognized this, stating that “[e]xclusionary zoning would be adequate to keep the …
Strahilevitz recognized this, stating that “[e]xclusionary zoning would be adequate to keep the poor from
living
in these communities.” Strahilevitz,
supra
note 59, at 488.
279
See, e.g.,
Editorial,
The Death of Michael Brown: Racial History Behind the Ferguson Protests
N.Y…
See, e.g.,
Editorial,
The Death of Michael Brown: Racial History Behind the Ferguson Protests
N.Y. Times,
Aug. 12, 2014,
[http://perma.cc/94JQ-RBBM] (discussing the protests and racial divide in Ferguson, Missouri, and noting that, “[u]ntil the late 1940s, blacks weren’t allowed to live in most suburban St. Louis County towns, kept out by restrictive covenants”).
280
See supra
Part IV.A (discussing legacy issues).
See supra
Part IV.A (discussing legacy issues).
281
That said, although the placement and location of these physical barriers would have the same effe…
That said, although the placement and location of these physical barriers would have the same effect on anyone who must pass under or through them, it may be more or less likely that a person would need to pass under or through them based on the place that the person lives, and where he or she is heading.
282
The right to exclude is
“one of the most essential sticks in the bundle of rights that are commo…
The right to exclude is
“one of the most essential sticks in the bundle of rights that are commonly characterized as property.”
Dolan v. City of Tigard, 512 U.S. 374, 393 (1994) (quoting Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979))
283
Id.
Id.
284
See, e.g
., Hague v. CIO, 307 U.S. 496, 515 (1939) (“Wherever the title of streets and parks may …
See, e.g
., Hague v. CIO, 307 U.S. 496, 515 (1939) (“Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public . . . .”); Marc Jonathan Blitz,
The Fourth Amendment Future of Public Surveillance: Remote Recording and Other Searches in Public Space
, 63
Am. U. L. Rev.
21, 25 (2013) (“[T]he open and public space that we share with others—in streets, public squares, and parks—is not a private environment. We cannot exclude fellow citizens from this space . . . .”); Haochen Sun,
Fair Use As A Collective User Right
, 90 N.C. L. Rev. 125, 168 (2011) (“[T]angible public space is the open arena where people share common resources that are not held in exclusive possession by any single person.”).
285
See supra
Part III.A.
See supra
Part III.A.
286
Sometimes necessity or need results in courts bending the right to exclude.
See
State v. Shack, 27…
Sometimes necessity or need results in courts bending the right to exclude.
See
State v. Shack, 277 A. 2d 369, 374-75 (N.J. 1971) (holding that
the right to exclude does not include the right to bar access of governmental employees providing services to migrant workers).
287
See supra
Part II.
See supra
Part II.
288
Invalidation of architectural exclusion could take the form of preventing its initial construction…
Invalidation of architectural exclusion could take the form of preventing its initial construction or of reconfiguring existing examples.
289
This is because of the difficulty of proving intent, especially in the context of architecture and…
This is because of the difficulty of proving intent, especially in the context of architecture and land use, and because not all exclusionary decisions are based on race.
See, e.g.
supra
notes 266-268 and accompanying text.
290
See supra
Part III.A. Much dialogue surrounding the development of civil rights law in the United …
See supra
Part III.A. Much dialogue surrounding the development of civil rights law in the United States focuses on actions that have a non-discriminatory justification, which could be pretextual. Architectural exclusion fits within that dialogue.
291
Brooks & Rose
supra
note 196, at 57
Brooks & Rose
supra
note 196, at 57
292
I say “relative” in comparison to the number of cases that the courts have heard concerning ot…
I say “relative” in comparison to the number of cases that the courts have heard concerning other civil rights issues, and specifically, for example, school desegregation.
293
See
Lawrence Lessig, Code and Other Laws of Cyberspace
98 (1999).
See
Lawrence Lessig, Code and Other Laws of Cyberspace
98 (1999).
294
Tien,
supra
note 22, at 2, 5 (“Architecture . . . can affect us directly without our being aware…
Tien,
supra
note 22, at 2, 5 (“Architecture . . . can affect us directly without our being aware of what it does. . . . Its effects are normatively significant because we often are not aware that architecture is deliberately being used to constrain our action.”). Ironically, this is why some scholars, including Sunstein, are drawn to the idea of architectural regulation: it preserves a sense of freedom.
See generally
Thaler & Sunstein
supra
note 54.
295
If the intent to discriminate is clear or obvious, even architecture could be actionable in court.…
If the intent to discriminate is clear or obvious, even architecture could be actionable in court. But it rarely will be obvious, and we often don’t even think to look for the intent because we don’t think that architecture regulates.
296
“Architecture operates ‘much more [on the] subconscious than [the] conscious. . . . [Y]ou live…
“Architecture operates ‘much more [on the] subconscious than [the] conscious. . . . [Y]ou live in architecture, and it affects you whether you’re even conscious of it.’” Katyal,
supra
note 21, at 1072 (quoting Avrel Seale,
Architect Lawrence W. Speck and “The Vision Thing
Tex. Alcalde
, July-Aug. 1999).
297
“Often, we simply have no clue as to who made the key design decisions regarding our settings or…
“Often, we simply have no clue as to who made the key design decisions regarding our settings or equipment.” Tien,
supra
note 22, at 10.
298
Id
Id
299
In describing a criticism of both architecture and “nudge,” or “choice architecture,” as a…
In describing a criticism of both architecture and “nudge,” or “choice architecture,” as a form of regulation, one commentator notes that the “problem is that regulators perform this substitution [for the coercive function of law] without reintroducing the procedural safeguards that usually attend the passage, interpretation, and enforcement of laws.” Ryan Calo,
Code, Nudge, or Notice?
, 99
Iowa L. Rev
. 773, 777 (2014). With respect to public participation in the creation of laws, see generally
Cary Coglianese et al., Transparency and Public Participation in the Rulemaking Process V
(2008),
[http://perma.cc/U2EU-KDC4] (noting that federal administrative agencies adopt procedures that provide notice to the public and encourage participation with the aim to improve the quality and legitimacy of the rulemaking process);
Karl T. Kurtz, Legislatures and Citizens: Public Participation and Confidence in the Legislature 2
(1997),
[http://perma.cc/27QQ-AFTC] (“In a democracy, the more people involved the better the result.”). That said, many cities do hold public meetings when considering road reconfiguration or the placement of transit stops. However, some of those decisions are eventually determined through administrative processes.
See, e.g.
, Sanchez et al.,
supra
note 119, at ix (“State departments of transportation and Metropolitan Planning Organizations are responsible for planning transportation . . . . Although these agencies are required to seek out and consider the needs of low-income and minority households, there are no effective mechanisms to ensure their compliance with this requirement.”).
300
Calo,
supra
note 299, at 781 (noting that architecture “can, but need not, be subject to the sam…
Calo,
supra
note 299, at 781 (noting that architecture “can, but need not, be subject to the same procedural safeguards as law” and that “[o]ne branch of government (say a city council) can decide to change the architecture of a road . . . and simply hire a contractor to carry out the decision”). On the other hand, some might argue that architectural decisions are more visible than legal decision making because certain choices about infrastructure and architecture are made at the local level, by institutions or councils to which citizens might have more access than the federal or state legislature.
301
See supra
Part III.A.2.
See supra
Part III.A.2.
302
See supra
Part III.C. Zoning ordinances are adopted by elected bodies, whereas architectural or in…
See supra
Part III.C. Zoning ordinances are adopted by elected bodies, whereas architectural or infrastructural decisions are often administrative, and thus lack the imprimatur of law. The extent to which this is true, however, is highly location dependent. For example, the city of Portland, Maine, gives the city traffic engineer the authority to establish parking regulations—including residential parking designations—without requiring city council approval.
Portland, Me., Code
§ 28-24(g)(1) (2013) (demonstrating that because authority regarding “no parking any time” and metered parking changes are the only exceptions listed regarding the city traffic engineer’s authority to establish parking regulations, all other types of parking determinations—such as residential parking—do not appear to require amendment to the traffic schedule by the city council. § 28-24(g)(1)(i-ii) (2013)). In contrast, the city of Charleston, South Carolina, requires any change in permit parking to be approved by the city council before it can be implemented.
Charleston, Sc., Code
§ 19-268;
see also
E-mail from Judy Crites, Office Manager, City of Charleston, to Patrick Lyons, Research Assistant, Univ. of Me. Sch. of Law (Apr. 11, 2014, 10:31:00 EST) (on file with author).
303
See supra
Part III.A.2;
see also
Ellickson et al.
supra
note 70, at 778 (“Most state courts con…
See supra
Part III.A.2;
see also
Ellickson et al.
supra
note 70, at 778 (“Most state courts continue to attach a presumption of validity even to municipal land use controls that admittedly exclude lower-cost housing (absent evidence of a racially discriminatory purpose), and merely require that the controls be rationally related to some permissible governmental objective.”).
But see supra
note 194 (discussing successful disparate impact claims under the FHA).
304
See, e.g.
Ellickson et al.
supra
note 70, at 758-94 (noting, in the section titled, “Discrimin…
See, e.g.
Ellickson et al.
supra
note 70, at 758-94 (noting, in the section titled, “Discrimination Against Low- and Moderate-Income Housing,” that in the 1970s “reformers harbored considerable hope that the Supreme Court’s interpretation of the U.S. Constitution would lead to the demise of zoning that had the effect of excluding lower-cost housing for poor or working-class families . . . the Supreme Court refused to cooperate”).
305
See supra
Part III.C (discussing legal versus architectural exclusion).
See supra
Part III.C (discussing legal versus architectural exclusion).
306
Lessig,
supra
note 20, at 509.
Lessig,
supra
note 20, at 509.
307
Nick Scharf,
Life Through a Lens: A “Lessigan” Model for Understanding Digital Copyright Infri…
Nick Scharf,
Life Through a Lens: A “Lessigan” Model for Understanding Digital Copyright Infringement?
, 16
J. Internet L.
18, 26 (2012) (“The modality of ‘architecture’ represents the physical burdens in existence . . . .”).
308
Tien,
supra
note 22, at 4 (describing architectural regulation as “government action directed at…
Tien,
supra
note 22, at 4 (describing architectural regulation as “government action directed at the real-world conditions of human activity, tangible or intangible, which in turn affects what people can or are likely to do”).
309
Id.
at 3, 7 (citing
Lessig,
supra
note 293, at 237).
Id.
at 3, 7 (citing
Lessig,
supra
note 293, at 237).
310
See
Lessig,
supra
note 293, at 237 (discussing law and norms as after-the-fact regulation, and arc…
See
Lessig,
supra
note 293, at 237 (discussing law and norms as after-the-fact regulation, and architecture as a present constraint on action). Of course, law may also serve a deterrent function.
311
Id.
(noting that norms and law prevent a person from breaking into a neighbor’s home to access h…
Id.
(noting that norms and law prevent a person from breaking into a neighbor’s home to access her air conditioning, while a lock on the door is a form of architectural constraint).
312
Id
Id
313
Tien,
supra
note 22, at 10.
Tien,
supra
note 22, at 10.
314
For example, we do not need laws to prevent large buildings from being stolen; their architecture …
For example, we do not need laws to prevent large buildings from being stolen; their architecture protects them and effectively prohibits their theft. Lessig,
supra
note 20, at 523 (“We have special laws to protect against the theft of autos, or boats. We do not have special laws to protect against the theft of skyscrapers. Skyscrapers take care of themselves. The architecture of real space . . . protects skyscrapers much more effectively than law. Architecture is an ally of skyscrapers (making them impossible to move); it is an enemy of cars, and planes (making them quite easy to move).”).
315
Of course, breaking the law and circumventing the architectural constraint are sometimes one and t…
Of course, breaking the law and circumventing the architectural constraint are sometimes one and the same; examples are going the wrong way down a one-way street or parking in a residential parking permit zone without such a permit.
316
Because excluded communities are often also poor or underserved, exit is not always a real choice.…
Because excluded communities are often also poor or underserved, exit is not always a real choice.
See, e.g.
Albert O. Hirschman
Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States
(1970) (discussing exit and voice). Indeed, part of architectural exclusion is that a person actually cannot get out (or in)–either due to physical barriers that make it difficult or the lack of transit options. Further, the lack of a true ability to exit is one of the strongest arguments against Tiebout’s theory, which suggested that communities provide different goods and services that appeal to different types of people and that people will seek out a community that provides them with the most appealing goods and services.
Compare
Charles M. Tiebout,
A Pure Theory of Local Expenditures
, 64
J. Pol. Econ
. 416 (1956),
with
Nick Gill & Andrés Rodríguez-Pose,
Do Citizens Really Shop Between Decentralized Jurisdictions?: Tiebout and Internal Migration Revisited
, 16
Space & Polity
175 (2012) (noting that analysis of other nations suggests that there is only a weak link between migration among jurisdictions and decentralization),
and
Kenneth Bickers & Richard N. Engstrom,
Tiebout Sorting in Metropolitan Areas
, 23
Rev. Pol’y Res
. 1181 (2006) (finding random sorting among municipalities in the Houston and Atlanta metropolitan areas). However, in order to uproot and move to a more appealing community, a person needs resources, including money and job flexibility.
317
Katyal,
supra
note 21, at 1043 (“Research in architectural theory and environmental psychology r…
Katyal,
supra
note 21, at 1043 (“Research in architectural theory and environmental psychology reveals that architects influence, in subtle ways, the paths by which we live and think.”).
318
See supra
Part I;
see also
Scott
supra
note 29, at 117-32; Boddie,
supra
note 57, at 442 (“The …
See supra
Part I;
see also
Scott
supra
note 29, at 117-32; Boddie,
supra
note 57, at 442 (“The theory that space might be used for social control may be foreign to constitutional law . . . .”); Katyal,
supra
note 21, at 1087 (“The theory of how architecture shapes tastes has been developed within the field of environmental psychology and has been largely ignored by law schools due to their focus on the use of legal codes to regulate conduct.”).
319
See supra
Part I.A;
see also
Edward T. Hall
The Hidden Dimension
4 (1966) (“[B]oth
man and his en…
See supra
Part I.A;
see also
Edward T. Hall
The Hidden Dimension
4 (1966) (“[B]oth
man and his environment participate in molding each other
. Man is now in the position of actually creating the total world in which he lives . . . . In creating this world he is actually determining
what kind of an organism
he will be. This is a frightening thought in view of how very little is known about man. It also means that, in a very deep sense, our cities are creating different types of people in their slums, mental hospitals, prisons, and suburbs.”); Boddie,
supra
note 57, at 442; Katyal,
supra
note 21, at 1131-32.
320
John Zeisel
Sociology and Architectural Design
26 (1975) (describing how the built environment …
John Zeisel
Sociology and Architectural Design
26 (1975) (describing how the built environment “express[es] individual group affiliation . . [and] send[s] informal public messages”).
321
See, e.g.
, Katrina Fischer Kuh,
Capturing Individual Harms
, 35
Harv. Envtl. L. Rev.
155, 166 (2011…
See, e.g.
, Katrina Fischer Kuh,
Capturing Individual Harms
, 35
Harv. Envtl. L. Rev.
155, 166 (2011) (“The capacity of local governments to change the physical architecture of communities is an important way that local governments influence individual lifestyles and behaviors . . . .”);
see also
9 + 1 Ways of Being Political: 50 Years of Political Stances in Architecture and Urban Design
Museum Modern Art,
[http://perma.cc/E72E-2XG5] (“The political potential of architecture was one of the founding credos of the avant-garde in the early 20th century. Yet today it is commonly believed that this potential has been overwhelmed by economic realities and by the sense that architecture, by its very nature, is symbiotic with existing power structures.”).
322
Martin Heidegger
Building Dwelling Thinking
in
Poetry, Language, Thought 143, 153
(Albert Hofsta…
Martin Heidegger
Building Dwelling Thinking
in
Poetry, Language, Thought 143, 153
(Albert Hofstadter trans., Harper & Row 1971). Foucault, in his discussions of the Panopticon, noted that “architecture can shape tastes. When architecture ‘is no longer built simply to be seen . . . but to permit an internal, articulated and detailed control[;] . . . architecture . . . operate[s] to transform individuals.’” Katyal,
supra
note 21, at 1131-32 (quoting
Michel Foucault, Discipline and
Punish
171 (Alan Sheridan trans., Vintage Books 2d ed. 1995) (1975)).
323
Caro,
supra
note 1, and accompanying text.
Caro,
supra
note 1, and accompanying text.
324
Gunter A. Dittmar,
Architecture as Dwelling and Building Design as Ontological Act
Cloud Cuckoo L…
Gunter A. Dittmar,
Architecture as Dwelling and Building Design as Ontological Act
Cloud Cuckoo Land
5 (1998),
[http://perma.cc/V72S-RMPA];
see also
Joerges,
supra
note 28, at 412 (“Architects, for instance, may want people to communicate, and can then design their office buildings accordingly.”). This idea of designing a space to foster certain types of discussions or interactions was examined in the work of architect and artist Lebbeus Woods.
See
Lebbeus Woods - Biography
, Eur. Graduate Sch.
[http://perma.cc/J8ZL-6LJB] (“Woods works independently and creates various conceptual and experimental projects based on his theoretical positions regarding the role of architecture as a political force in society.”).
325
Winner,
supra
note 28, at 125.
Winner,
supra
note 28, at 125.
326
Architectural features often appear as mere design choices to uninformed observers.
Amos Rapoport,…
Architectural features often appear as mere design choices to uninformed observers.
Amos Rapoport, The Meaning of the Built Environment: A Nonverbal Communication Approach
139 (1982) (noting that in parts of the Middle East, sloped roofs are viewed as a status symbol and flat roofs as a symbol of poverty; those who have sloped roofs are giving up space that could otherwise be used for sleeping and working).
327
Similarly, research also suggests that most courts do not consider the racial setting or community…
Similarly, research also suggests that most courts do not consider the racial setting or community history and demographics (referred to as “racial territoriality”) underlying decisions and actions that take place in a given community.
See
Boddie,
supra
note 57.
328
Mohl,
supra
note 153, at 31;
see also
Helen Leavitt, Superhighway—Superhoax
177-80 (1970); Richard…
Mohl,
supra
note 153, at 31;
see also
Helen Leavitt, Superhighway—Superhoax
177-80 (1970); Richard J. Whalen,
The American Highway: Do We Know Where We’re Going?
Saturday Evening Post
, Dec. 14, 1968, at 22-24, 57-58. This decision was made at a nonpublic meeting. Mohl,
supra
note 153, at 31.
329
See
Nashville I-40 Steering Comm. v. Ellington, 387 F.2d 179 (6th Cir. 1967).
See
Nashville I-40 Steering Comm. v. Ellington, 387 F.2d 179 (6th Cir. 1967).
330
Id.
at 181.
Id.
at 181.
331
Id
(quoting memorandum opinion of district court). When a court determines that a given issue goes…
Id
(quoting memorandum opinion of district court). When a court determines that a given issue goes to wisdom and not legality, it has determined that the issue at hand either does not implicate legal matters, or it does not violate the law.
See, e.g
., Rosenberger v. Rector & Visitors of Univ. of Virginia, 795 F. Supp. 175, 182 (W.D. Va. 1992),
aff’d
, 18 F.3d 269 (4th Cir. 1994),
rev’d
, 515 U.S. 819 (1995) (finding that “the plaintiffs’ complaints about the Guidelines are more properly directed at the wisdom and not the legality of the restrictions. . . . [because] the Board’s Guidelines are reasonable and do not violate any of the plaintiffs’ constitutional rights”);
see also
Jonathan R. Siegel,
A Theory of Justiciability
, 86
Tex. L. Rev
. 73, 76 (2007) (“The ‘properly limited’ role of the courts in a democratic society is to rule only on the legality, and not on the wisdom, of the decisions of political officials.”).
332
387 F.2d at 185.
387 F.2d at 185.
333
Of course, one could argue that courts regularly defer to administrative agencies when those agenc…
Of course, one could argue that courts regularly defer to administrative agencies when those agencies possess expertise on a given matter; perhaps the same reasoning applies to the court’s willingness to defer to engineers and planners in the case of architectural decisions. However, it is also possible that the court here is not deferring to the administrators about design decisions merely because they have expertise in those matters, but because it does not view those design decisions as legal issues at all.
334
See, e.g.
supra
Part III.A.2 (explaining that existing jurisprudence is often insufficient for ad…
See, e.g.
supra
Part III.A.2 (explaining that existing jurisprudence is often insufficient for addressing exclusionary zoning).
335
US. Const.
amend. XIV, § 1 (“No State shall make or enforce any law which shall abridge the pri…
US. Const.
amend. XIV, § 1 (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”);
see, e.g
., Kadrmas v. Dickinson Pub. Sch., 487 U.S. 450, 458 (1988); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977); Warth v. Seldin, 422 U.S. 490 (1975); James v. Valtierra, 402 U.S. 137, 141–43 (1971).
336
See, e.g.
, Moore v. City of E. Cleveland, 431 U.S. 494 (1977); Holmes v. New York City Hous. Auth.…
See, e.g.
, Moore v. City of E. Cleveland, 431 U.S. 494 (1977); Holmes v. New York City Hous. Auth., 398 F.2d 262 (2d Cir. 1968).
337
See, e.g.
, City of Memphis v. Greene, 451 U.S. 100, 124-29 (1981); Palmer v. Thompson, 403 U.S. 21…
See, e.g.
, City of Memphis v. Greene, 451 U.S. 100, 124-29 (1981); Palmer v. Thompson, 403 U.S. 217, 226-27 (1971); Crenshaw v. City of Defuniak Springs, 891 F. Supp. 1548, 1556-57 (N.D. Fla. 1995); Atkins v. Robinson, 545 F. Supp. 852, 880 (E.D. Va. 1982),
aff’d
, 733 F.2d 318 (4th Cir. 1984).
338
See, e.g.
, Sanchez et al.,
supra
note 119, at ix (“Civil rights laws such as Title VI of the Civ…
See, e.g.
, Sanchez et al.,
supra
note 119, at ix (“Civil rights laws such as Title VI of the Civil Rights Act of 1964 . . . provide some legal protections for minority communities faced with discriminatory transportation policies. Enforcement of these protections, however, has been limited and should be increased. Currently there are no generally accepted measures or standards by which to gauge whether transportation planning and outcomes of transportation policies are equitable, and it is extremely difficult to enforce any requirements for equitable transportation policies.”).
339
Section 1982 of the Civil Rights Act of 1866 states that “[a]ll citizens of the United States sh…
Section 1982 of the Civil Rights Act of 1866 states that “[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.” 42 U.S.C. § 1982 (2012);
Robert G. Schwemm, Housing Discrimination: Law and Litigation
§ 27:8 (Westlaw) (noting that “exclusionary zoning cases often include a § 1982 claim”).
340
The Fair Housing Act makes it unlawful to “otherwise make unavailable or deny, a dwelling to any…
The Fair Housing Act makes it unlawful to “otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin,” which could apply to architectural exclusion that blocks access to a person’s home. 42 U.S.C. § 3604(a) (2012);
Schwemm,
supra
note 339,
§ 27:8 (“Though § 1982 remains available to curb public discrimination, the Fair Housing Act has now become the principal weapon against government land-use restrictions that are racially discriminatory.”). However, the examples of architectural exclusion in this Article are broader than claims surrounding access to housing; they speak to access to and through entire communities.
See, e.g.
, Southend Neighborhood Improvement Ass’n v. Cnty. of St. Clair, 743 F.2d 1207, 1209, 1212 (7th Cir. 1984) (suggesting that section 3604(a) requires a strong connection between the activity that is challenged and evidence that the activity will result in the denial or unavailability of housing).
341
McDougall,
supra
note 235, at 623-24.
McDougall,
supra
note 235, at 623-24.
342
While a complete analysis of all of these claims is beyond the scope of this Article, this section…
While a complete analysis of all of these claims is beyond the scope of this Article, this section will examine a few cases that address architectural exclusion and glean lessons from these claims.
343
What follows is not a complete list of every case that has considered architectural exclusion. Rat…
What follows is not a complete list of every case that has considered architectural exclusion. Rather, it represents a diligent effort to locate cases addressing issues relevant to the theme of this Article.
344
See, e.g.,
City of Memphis v. Greene, 451 U.S. 100, 123 (1981). Some road closure cases involve ch…
See, e.g.,
City of Memphis v. Greene, 451 U.S. 100, 123 (1981). Some road closure cases involve challenges to actions by private parties by their neighbors.
See, e.g.,
Evans v. Tubbe, 657 F.2d 661 (5th Cir. Unit A Sept. 1981); Jennings v. Patterson, 460 F.2d 1021, 1022 (5th Cir. 1972).
345
Greer v. City of Chicago, No. 95-C-6338, 1996 WL 169414 (N.D. Ill. Apr. 9, 1996).
Greer v. City of Chicago, No. 95-C-6338, 1996 WL 169414 (N.D. Ill. Apr. 9, 1996).
346
See, e.g.,
Labor/Cmty. Strategy Ctr. v. Los Angeles Cnty. Metro. Transp. Auth., 564 F.3d 1115 (9th…
See, e.g.,
Labor/Cmty. Strategy Ctr. v. Los Angeles Cnty. Metro. Transp. Auth., 564 F.3d 1115 (9th Cir. 2009); N.Y. Urb. League, Inc. v. New York, 71 F.3d 1031 (2d Cir. 1995); Comm. for a Better N. Phila. v. Se. Pa. Transp. Auth., 1990 U.S. Dist. Lexis 10895 (E.D. Pa 1990),
aff’d
, 935 F.2d 1280 (3d Cir. 1991).
347
See infra
Part IV.B.2.
See infra
Part IV.B.2.
348
Boddie,
supra
note 57, at 411 (footnote omitted). Unless the discriminatory intent behind an exclu…
Boddie,
supra
note 57, at 411 (footnote omitted). Unless the discriminatory intent behind an exclusionary architectural decision is made quite clear, it is generally not actionable. Even if there is discriminatory intent, in the context of infrastructure decisions, that intent is generally mixed in with more legitimate reasons. Even in the context of exclusion by law, it is quite common that “the applicable law or ordinance was facially neutral though its impact was felt exclusively or disproportionately by blacks.” Austin,
supra
note 118, at 672.
349
See supra
Part III.C (discussing architectural and legal exclusion).
See supra
Part III.C (discussing architectural and legal exclusion).
350
See supra
note 339.
See supra
note 339.
351
See
City of Memphis v. Greene, 451 U.S. 100, 123 (1981) (“[T]he threshold inquiry under § 1982…
See
City of Memphis v. Greene, 451 U.S. 100, 123 (1981) (“[T]he threshold inquiry under § 1982 must focus on the relationship between the [defendant’s conduct] and the property interests of the [plaintiff].”). This provision relates more to property transfers and holdings than access. One problem with using section 1982 in the context of architectural exclusion is that it relies on the African-American plaintiff’s possession of a stake in a piece of property. Architectural exclusion, understood broadly, is more about restricting access, regardless of where the excluded person lives. That said, it will often be the case that the access restriction is imposed between a black neighborhood and a wealthy, white one. If that is the case, the statute has more applicability. Of course, it does not apply to situations that exclude poor people who are not people of color.
352
See, e.g.
, Gallagher v. Magner, 619 F.3d 823, 839 (8th Cir. 2010),
cert. granted
, 132 S. Ct. 548 (…
See, e.g.
, Gallagher v. Magner, 619 F.3d 823, 839 (8th Cir. 2010),
cert. granted
, 132 S. Ct. 548 (2011),
cert. dismissed
, 132 S. Ct. 1306 (2012) (“Appellants’ claims pursuant to 42 U.S.C. §§ 1981, 1982, and 1985 are duplicative with their FHA disparate treatment claim, as the underlying constitutional violations for these claims require a showing of discriminatory intent.”); Jackson v. Okaloosa Cnty., 21 F.3d 1531, 1543 (11th Cir. 1994) (“[P]laintiffs who make claims under § 1982 . . . have been required to allege that some intentional discrimination took place.”).
353
See
Schwemm,
supra
note 339, §§
27:4, 27:8, 27:19 (“The Supreme Court has not yet decided whethe…
See
Schwemm,
supra
note 339, §§
27:4, 27:8, 27:19 (“The Supreme Court has not yet decided whether § 1982 includes a discriminatory effect standard.”).
354
Jones v. Alfred H. Mayer Co., 392 U.S. 409, 438 (1968) (“[Section] 1982 operates upon the unoffi…
Jones v. Alfred H. Mayer Co., 392 U.S. 409, 438 (1968) (“[Section] 1982 operates upon the unofficial acts of private individuals . . . .”);
Schwemm,
supra
note 339, § 27:14 (noting that “[s]ome plaintiffs, such as black homeseekers who are the direct objects of the defendant’s discrimination, are so obviously the intended beneficiaries of § 1982 that their standing is beyond question”);
id.
§ 27:15 (noting that “minority homeseekers have standing to sue under § 1982 whenever a developer, landlord, homeowners’ group, or any other defendant denies them the right to buy, rent, or negotiate for housing”);
see also
Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237 (1969) (holding that a white homeowner who wanted to rent his house to an African-American tenant had standing under section 1982 when defendants interfered with his actions).
355
See infra
notes 371-373 and accompanying text.
See infra
notes 371-373 and accompanying text.
356
451 U.S. 100 (1981).
451 U.S. 100 (1981).
357
See id.
at 102-05.
See id.
at 102-05.
358
Id.
at 104.
Id.
at 104.
359
Boddie,
supra
note 57, at 416.
Boddie,
supra
note 57, at 416.
360
Greene
, 451 U.S. at 103-04 (noting that the city denied the residents’ request to close all four…
Greene
, 451 U.S. at 103-04 (noting that the city denied the residents’ request to close all four streets “[a]fter receiving objections from the police, fire, and sanitation departments”).
361
Boddie,
supra
note 57, at 416.
Boddie,
supra
note 57, at 416.
362
Greene v. City of Memphis, 610 F.2d 395, 396 (6th Cir. 1979) (noting that it is unclear whether th…
Greene v. City of Memphis, 610 F.2d 395, 396 (6th Cir. 1979) (noting that it is unclear whether the new owners of the property will bar all foot traffic, but that “the proposed conveyance will leave them with the absolute right to do so if they wish”).
363
451 U.S. at 105 n.6.
451 U.S. at 105 n.6.
364
610 F.2d at 405.
610 F.2d at 405.
365
See
451 U.S. at 109-10 (explaining the holding of the lower court).
See
451 U.S. at 109-10 (explaining the holding of the lower court).
366
See
e.g
.,
id.
at 117-19 (discussing the lack of sufficient evidence regarding effects on property…
See
e.g
.,
id.
at 117-19 (discussing the lack of sufficient evidence regarding effects on property values).
367
Id.
at 128-29.
Id.
at 128-29.
368
Id
. at 114.
Id
. at 114.
369
Id.
at 114-16, 119. Both here and in the context of the forthcoming analysis, it is possible that …
Id.
at 114-16, 119. Both here and in the context of the forthcoming analysis, it is possible that the Court was not saying that architectural exclusion can never be unconstitutional, but rather that it did not want to turn every single architectural decision into a question of federal law.
370
Id.
at 119.
Id.
at 119.
371
Id.
at 123.
Id.
at 123.
372
Id.
at 124.
Id.
at 124.
373
For example, Moses’s low bridges did not adversely affect a property interest; rather, they adve…
For example, Moses’s low bridges did not adversely affect a property interest; rather, they adversely affected individuals who were reliant on public transit.
374
Greene
, 451 U.S. at 111-12, 120-24;
see also
Southend Neighborhood Improvement Ass’n v. Cnty. of…
Greene
, 451 U.S. at 111-12, 120-24;
see also
Southend Neighborhood Improvement Ass’n v. Cnty. of St. Clair, 743 F.2d 1207, 1212 (7th Cir. 1984) (holding that “[t]he impact of an allegedly wrongful activity clearly must be more than negligible to constitute a cognizable claim”).
375
Greene
, 451 U.S. at 123 n.36;
see
Jennings v. Patterson, 488 F.2d 436 (5th Cir. 1974).
Greene
, 451 U.S. at 123 n.36;
see
Jennings v. Patterson, 488 F.2d 436 (5th Cir. 1974).
376
Jennings v. Patterson, 460 F.2d 1021, 1022 (5th Cir. 1972).
Jennings v. Patterson, 460 F.2d 1021, 1022 (5th Cir. 1972).
377
Jennings
, 488 F.2d at 439.
Jennings
, 488 F.2d at 439.
378
Id.
Id.
379
See id.
at 441.
See id.
at 441.
380
Id.
at 442.
Id.
at 442.
381
42 U.S.C.
§§ 1981-1983, 1985 (2012). The court found that the plaintiffs were injured, in part, …
42 U.S.C.
§§ 1981-1983, 1985 (2012). The court found that the plaintiffs were injured, in part, because they were denied “convenient access to downtown.”
Jennings
, 488 F.2d at 442.
382
See
City of Memphis v. Greene, 451 U.S. 100, 136-55 (Marshall, J., dissenting).
See
City of Memphis v. Greene, 451 U.S. 100, 136-55 (Marshall, J., dissenting).
383
Id.
at 153.
Id.
at 153.
384
Boddie,
supra
note 57, at 456-57;
see also
Greene
, 451 U.S. at 137 (Marshall, J., dissenting) (“…
Boddie,
supra
note 57, at 456-57;
see also
Greene
, 451 U.S. at 137 (Marshall, J., dissenting) (“[A]s the District Court found, Hein Park ‘was developed well before World War II as an exclusive residential neighborhood for white citizens and these characteristics have been maintained.’”);
Thomas Ross, Just Stories: How the Law Embodies Racism and Bias
43 (1996) (describing Hein Park as “all-white, a situation first established by a set of racial covenants that precluded the sale of any property to anyone of another race”).
385
The goal of the Thirteenth Amendment is to “abolish slavery of whatever name and form and all it…
The goal of the Thirteenth Amendment is to “abolish slavery of whatever name and form and all its badges and incidents; to render impossible any state of bondage; to make labor free, by prohibiting that control by which the personal service of one man is disposed of or coerced for another’s benefit.” Bailey v. Alabama, 219 U.S. 219, 241 (1911).
386
Greene
, 451 U.S. at 128.
Greene
, 451 U.S. at 128.
387
Cf.
Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954) (“To separate them from others . . . solely …
Cf.
Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954) (“To separate them from others . . . solely because of their race generates a feeling of inferiority as to their status in the community . . . .”).
388
Greene
, 451 U.S. at 152-53 (Marshall, J., dissenting) (“[I]t defies the lessons of history and l…
Greene
, 451 U.S. at 152-53 (Marshall, J., dissenting) (“[I]t defies the lessons of history and law to assert that if the harm is only symbolic, then the federal courts cannot recognize it.”).
389
Id.
(“It is simply unrealistic to suggest, as does the Court, that the harm suffered by responde…
Id.
(“It is simply unrealistic to suggest, as does the Court, that the harm suffered by respondents has no more than ‘symbolic significance’ . . . .”).
390
Blomley,
supra
note 44, at 55.
Blomley,
supra
note 44, at 55.
391
Greene
, 451 U.S. at 128.
Greene
, 451 U.S. at 128.
392
Id.
Id.
393
Winner,
supra
note 3, at 124.
Winner,
supra
note 3, at 124.
394
See Greene
, 451 U.S. at 128;
Paul Harris, Black Rage Confronts the Law
72 (1997) (“[T]he [Greene…
See Greene
, 451 U.S. at 128;
Paul Harris, Black Rage Confronts the Law
72 (1997) (“[T]he [Greene] Court closes its eyes and ears to segregated housing patterns, racial hostility, and the power of the white property owners to get the City of Memphis to do its racist bidding.”);
see also
supra
Part III (examining the laws and norms that led to racial and socioeconomic exclusion from certain parts of a given community and surveying judicial and legislative treatment of those traditional forms of legal regulation).
395
Greene
, 451 U.S. at 128.
Greene
, 451 U.S. at 128.
396
Ross,
supra
note
384
at 43 (“After the legal demise of [racially restrictive] covenants, privat…
Ross,
supra
note
384
at 43 (“After the legal demise of [racially restrictive] covenants, private understandings maintained the exclusive character of Hein Park”).
397
Michael Selmi,
Proving Intentional Discrimination: The Reality of Supreme Court Rhetoric
, 86
Geo. …
Michael Selmi,
Proving Intentional Discrimination: The Reality of Supreme Court Rhetoric
, 86
Geo. L.J.
279, 338 (1997) (claiming that the Supreme Court takes a limited view of discrimination).
398
Others, in addition to the majority, seemed to view it this way. For example, an amici stated, “…
Others, in addition to the majority, seemed to view it this way. For example, an amici stated, “The sanctioning by this Court of the closing of West Drive may very well signal to white communities all over the country that municipal zoning power is available to physically exclude ‘undesirable elements,’ definable in racial terms, and thereby create a virtually all white ‘oasis’ in the midst of a rapidly deteriorating nether world.” Brief for the Affirmative Action Coordinating Center et al. as Amici Curiae at 2-3,
Greene
, 451 U.S. 100 (No. 79-1176), 1980 WL 339376. But here, this was not merely a zoning law that made it difficult for these individuals to access a place; it was physical exclusion.
399
See
Brief for Respondents Owens, Cross, and Burse at 3-4,
Greene
, 451 U.S. 100 (No. 79-1176), 1980…
See
Brief for Respondents Owens, Cross, and Burse at 3-4,
Greene
, 451 U.S. 100 (No. 79-1176), 1980 WL 339375 (noting that a black civic association’s petition to the City Council stated that “this closing symbolize[d] in unmistakable terms a white neighborhood shutting its door on its adjacent Black and integrated communities”).
400
Greene
, 451 U.S. at 140 (Marshall, J., dissenting).
Greene
, 451 U.S. at 140 (Marshall, J., dissenting).
401
John O. Calmore,
The Law and Culture-Shift: Race and the Warren Court Legacy
, 59
Wash. & Lee L. Re…
John O. Calmore,
The Law and Culture-Shift: Race and the Warren Court Legacy
, 59
Wash. & Lee L. Rev.
1095, 1119 (2002) (noting that Marshall’s dissent in Greene was representative of him serving as the Court’s conscience).
402
See also
R.A. Lenhardt,
Understanding the Mark: Race, Stigma, and Equality in Context,
79
N.Y.U. L…
See also
R.A. Lenhardt,
Understanding the Mark: Race, Stigma, and Equality in Context,
79
N.Y.U. L. Rev.
803 (2004) (recognizing that antidiscrimination law is limited in its ability to address stigma and implicit biases).
See generally
Jerry Kang & Kristin Lane,
Seeing Through Colorblindness: Implicit Bias and the Law
, 58
UCLA L. Rev
. 465 (2010) (discussing implicit bias).
403
Howard Ball, A Defiant Life: Thurgood Marshall and the Persistence of Racism in America
205 (1998)…
Howard Ball, A Defiant Life: Thurgood Marshall and the Persistence of Racism in America
205 (1998) (quoting
John C Jeffries, Jr., Justice Lewis F. Powell, Jr.
261 (1994)).
404
Terry Properties, Inc. v. Standard Oil Co., 799 F.2d 1523 (11th Cir. 1986).
Terry Properties, Inc. v. Standard Oil Co., 799 F.2d 1523 (11th Cir. 1986).
405
Id.
at 1528.
Id.
at 1528.
406
Id.
at 1536.
Id.
at 1536.
407
657 F.2d 661 (5th Cir. Unit A Sept. 1981).
657 F.2d 661 (5th Cir. Unit A Sept. 1981).
408
Id.
at 662.
Id.
at 662.
409
Id.
Id.
410
Id
. at 662 n.2.
Id
. at 662 n.2.
411
See supra
note 11 and accompanying text;
supra
note 375 and accompanying text.
See supra
note 11 and accompanying text;
supra
note 375 and accompanying text.
412
“A consent decree is a settlement, in the form of a court order, containing injunctive relief in…
“A consent decree is a settlement, in the form of a court order, containing injunctive relief in which the trial court agrees to maintain jurisdiction over the case.” Thomas M. Mengler,
Consent Decree Paradigms: Models Without Meaning
, 29 B.C. L. Rev. 291, 292 (1988).
413
See
Yan,
supra
note 119, at 1137 (noting that “[t]ransit justice advocates have developed two li…
See
Yan,
supra
note 119, at 1137 (noting that “[t]ransit justice advocates have developed two lines of substantive equity cases,” the first “focus[ing] on the distribution of subsidies across transit lines, typically alleging that transit agencies favored rail lines with predominantly white riderships used to commute between suburbs and central cities over bus lines with predominantly minority riderships used primarily for short, intra-city trips,” and second “examin[ing] the siting of transit lines themselves” (citing Findings of Fact and Conclusions of Law re: Preliminary Injunction, Labor/Cmty. Strategy Ctr. v. L.A. Cnty. Metro. Transp. Comm’n, No. CV 94-5936 (C.D. Cal. Sept. 21, 1994))).
414
Labor/Cmty. Strategy Ctr. v. L.A. Cnty. Metro. Transp. Auth., 564 F.3d 1115, 1117 (9th Cir. 2009).
Labor/Cmty. Strategy Ctr. v. L.A. Cnty. Metro. Transp. Auth., 564 F.3d 1115, 1117 (9th Cir. 2009).
415
Id.
Id.
416
Id.
Id.
417
See
Greer v. City of Chicago, No. 95-C-6338, 1996 WL 169414, at *1-2 (N.D. Ill. Apr. 9, 1996).
See
Greer v. City of Chicago, No. 95-C-6338, 1996 WL 169414, at *1-2 (N.D. Ill. Apr. 9, 1996).
418
See id.
at *1.
See id.
at *1.
419
See id.
at *2.
See id.
at *2.
420
Cheryl W. Thompson,
Cul-de-sac Plan Jeered on South Side
Chi. Trib.
, Jan. 24, 1993, http://articl…
Cheryl W. Thompson,
Cul-de-sac Plan Jeered on South Side
Chi. Trib.
, Jan. 24, 1993,
[http://perma.cc/SPX5-Z453].
421
Cindy Richards,
Cul-de-sacs and Circles Divert Cars, Not Criticism
Chi. Trib.
, May 15, 1998, http…
Cindy Richards,
Cul-de-sacs and Circles Divert Cars, Not Criticism
Chi. Trib.
, May 15, 1998,
[http://perma.cc/66F9-Y827] (noting that “traffic volume has been reduced in those areas [including parts of the South Side] by 50 percent since [cul-de-sacs] were installed”).
422
Sometimes those undertaking exclusionary architectural actions, such as members of a city council,…
Sometimes those undertaking exclusionary architectural actions, such as members of a city council, might not be acting with obvious intent or animus, due in part to the background of unconscious racism in the United States. Lawrence noted, in relation to
Memphis v. Greene
, that “[i]ndividual members of the city council might well have been unaware that their continuing need to maintain their superiority over blacks, or their failure to empathize with how construction of the wall would make blacks feel, influenced their decision.” Lawrence,
supra
note 14, at 357 (citation omitted);
see also id.
at 357 n.185 (noting that “Justice Stevens’ opinion in
Memphis
is itself an example of how a decision need not involve self-conscious racial animus to be race-dependent”).
423
Pat Somers Cronin, Op-Ed,
The Road (or Cul-de-sac) to Disaster
Chi. Trib.
, May 21, 1998, http://a…
Pat Somers Cronin, Op-Ed,
The Road (or Cul-de-sac) to Disaster
Chi. Trib.
, May 21, 1998,
[http://perma.cc/4DX5-W9U3].
424
Thompson,
supra
note 420.
Thompson,
supra
note 420.
425
Cronin,
supra
note 423.
Cronin,
supra
note 423.
426
Richards,
supra
note 421.
Richards,
supra
note 421.
427
Greer v. City of Chicago, No. 95-C-6338, 1996 WL 169414, at *2 (N.D. Ill. Apr. 9, 1996) (citing Me…
Greer v. City of Chicago, No. 95-C-6338, 1996 WL 169414, at *2 (N.D. Ill. Apr. 9, 1996) (citing Memphis v. Greene, 451 U.S. 100 (1981)).
428
Id.
As this Article has addressed, discriminatory effect alone is not enough in the context of an …
Id.
As this Article has addressed, discriminatory effect alone is not enough in the context of an equal protection claim.
See supra
note 244 and accompanying text.
429
348 F. Supp. 2d 398, 411 (D. Md. 2005).
348 F. Supp. 2d 398, 411 (D. Md. 2005).
430
Id.
at 428.
Id.
at 428.
431
Id
. at 429; Texeira,
supra
note 105.
Id
. at 429; Texeira,
supra
note 105.
432
Thompson
, 348 F. Supp. 2d at 429.
Thompson
, 348 F. Supp. 2d at 429.
433
Id.
at 428 n.56.
Id.
at 428 n.56.
434
Id.
at 431.
Id.
at 431.
435
Id.
at 431-32 (finding that, for example, they believed the fence would be an amenity to the senio…
Id.
at 431-32 (finding that, for example, they believed the fence would be an amenity to the senior housing they planned to build on the site in the future, functioning like a fence around a gated community).
436
Id.
at 432.
Id.
at 432.
437
See, e.g.
, Charles E. Cohen,
Eminent Domain After
Kelo v. City of New London
: An Argument for Bann…
See, e.g.
, Charles E. Cohen,
Eminent Domain After
Kelo v. City of New London
: An Argument for Banning Economic Development Takings,
29
Harv. J. L. & Pub. Pol’y
491, 547-48 (2006) (describing the mistake of urban renewal); Robert C. Ellickson,
The Law and Economics of Street Layouts: How a Grid Pattern Benefits a Downtown
, 64
Ala. L. Rev.
463, 491 (2013) (referring to urban renewal-related superblocks as a “mistake in policy”); Nicole Stelle Garnett,
The Public-Use Question as a Takings Problem
, 71
Geo. Wash. L. Rev
. 934, 953 (2003) (“Despite the enthusiasm of ‘slum clearance’ proponents, whose viewpoint the Supreme Court accepted with vigor in
Berman v. Parker
, urban renewal generally is considered an abysmal failure.”).
438
See supra
Part II.A.
See supra
Part II.A.
439
Moreover, the government must now comply with the mandates of the National Environmental Policy Ac…
Moreover, the government must now comply with the mandates of the National Environmental Policy Act (NEPA) when undertaking large projects involving federal funding, such as many transportation projects involving highways, bridges, and transit stop placement. 42 U.S.C. § 4321 (2012). Although NEPA is often criticized for lacking “teeth”—it is an information-forcing statute, not one that requires specific actions as a result of the information discovered—it does require consideration of the “human health, economic, and social effects” that a project will have on low-income and minority communities in some instances. William J. Clinton,
Memorandum for the Heads of All Departments and Agencies
White House
(Feb. 11, 1994),
[http://perma.cc/RN2E-FCR4];
Sanchez et al.,
supra
note
119
see also
Exec. Order No. 12,898, 59 Fed. Reg. 7629 (1994) (providing that “each Federal agency shall . . . identify[] and address[] . . . disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations”).
440
“[U]nlike fashions, which come and go, the enduring nature of architecture is seen by the Gothic…
“[U]nlike fashions, which come and go, the enduring nature of architecture is seen by the Gothic and Renaissance examples still standing (and in use!) today . . . .”
See History
Cal. Architects Bd.
[http://perma.cc/7B3Y-6689];
cf
. Lebbeus Woods,
Inevitable Architecture
Lebbeus Woods (
July 9, 2012, 9:38 PM),
[http://perma.cc/UK7L-RXRR] (“Most architects dislike the idea of buildings’ decay and work hard to avoid it by the careful selection of materials, systems, and methods of assembly that will withstand the forces of nature continually attacking them, chiefly those of weather.”).
441
Eduardo M. Peñalver,
Land Virtues
, 94
Cornell L. Rev
. 821, 853 (2009).
Eduardo M. Peñalver,
Land Virtues
, 94
Cornell L. Rev
. 821, 853 (2009).
442
See, e.g.
, Ryan Cooper,
Why Is It So Expensive To Build a Bridge in America?
Wk.
, Mar. 10, 2014, …
See, e.g.
, Ryan Cooper,
Why Is It So Expensive To Build a Bridge in America?
Wk.
, Mar. 10, 2014,
[http://perma.cc/2TRV-P7R5] (“U.S. infrastructure isn’t just a tad higher than the next most expensive country—we pay something like twice as much as our closest peer.”); Angie Schmitt,
Why Are American Infrastructure Projects So Expensive?
Streetsblog
(Aug. 29, 2012),
[http://perma.cc/8GFX-6NRX] (“The state of Wisconsin is preparing to spend $1.7 billion on an interchange. Kentucky and Indiana are getting ready to spend $2.6 billion on a bridge. The Portland region will spend at least $3.2 billion on its own bridge/highway. And New York’s car-centric Tappan Zee Bridge replacement is projected to cost in the range of $5 billion. Part of the reason these projects cost so much is that they involved rolling major road widenings into what should be simpler infrastructure fixes.”).
443
Sager,
supra
note 226, at 770 (1969).
Sager,
supra
note 226, at 770 (1969).
444
The federal government owns and manages approximately 635 to 640 million acres of land in the Unit…
The federal government owns and manages approximately 635 to 640 million acres of land in the United States.
Ross W. Gorte et al., Cong. Research Serv., Federal Land Ownership: Overview and Data 1
(2012). Although much of that land is far from cities and undeveloped, publicly owned “[c]ity streets and sidewalks account for about one-quarter of developed urban land . . . .” Katyal,
supra
note 21, at 1095. Thus, the government controls a large portion of the U.S.-built environment, and the decisions it makes in creating these spaces can have dramatic impacts on populations.
445
Boddie,
supra
note 57, at 420.
Boddie,
supra
note 57, at 420.
446
347 U.S. 483, 494 (1954) (recognizing that segregation “generates a feeling of inferiority as to…
347 U.S. 483, 494 (1954) (recognizing that segregation “generates a feeling of inferiority as to [black students’] status in the community. . . .”); Lawrence,
supra
note 14, at 350-51 (discussing the role of stigma in
Brown
).
447
Boddie,
supra
note 57, at 420 n.114;
see also
Timothy Zick,
Constitutional Displacement
, 86
Wash. …
Boddie,
supra
note 57, at 420 n.114;
see also
Timothy Zick,
Constitutional Displacement
, 86
Wash. U. L. Rev
515, 517 (2009) (“[T]here is no more fundamental liberty than the freedom to choose one’s own place. The loss of that freedom can result in severe forms of not only personal, but constitutional, displacement.”).
448
Boddie,
supra
note 57, at 423 (“Because they belong to one space but not another, their dignity …
Boddie,
supra
note 57, at 423 (“Because they belong to one space but not another, their dignity as individuals is spatially contingent.”);
see also
Schuette v. Coalition To Defend Affirmative Action, 134 S. Ct. 1623, 1676 (2014) (Sotomayor, J., dissenting) (“Race matters because of . . . the silent judgments that reinforce that most crippling of thoughts: ‘I do not belong here.’”); Zick,
supra
note 447, at 517 (discussing freedom).
449
See, e.g.
Xavier de Souza Briggs
The Geography Of Opportunity: Race And Housing Choice In Metrop…
See, e.g.
Xavier de Souza Briggs
The Geography Of Opportunity: Race And Housing Choice In Metropolitan America
(2005); George C. Galster & Sean P. Killen,
The Geography of Metropolitan Opportunity: A Reconnaissance and Conceptual Framework
, 6
Housing Pol’y Debate
7 (1995); James E. Rosenbaum et al.,
How Do Places Matter? The Geography of Opportunity, Self-Efficacy and a Look Inside the Black Box of Residential Mobility
, 17
Housing Stud.
71 (2002); Gregory D. Squires & Charis E. Kubrin,
Privileged Places: Race, Uneven Development and the Geography of Opportunity in Urban America
, 42
Urb. Stud.
47 (2005).
450
See generally
Robert J. Sampson,
Moving to Inequality: Neighborhood Effects and Experiments Meet S…
See generally
Robert J. Sampson,
Moving to Inequality: Neighborhood Effects and Experiments Meet Social Structure
, 114
Am. J. Soc.
189 (2008) (discussing causal claims for the effect of neighborhoods on employment outcomes); Squires & Kubrin,
supra
note 449, at 47 (arguing that poor education, housing, and other resources in neighborhoods contribute to future poor employment opportunities).
451
Strahilevitz,
supra
note 59, at 489.
Strahilevitz,
supra
note 59, at 489.
452
Reva B. Siegel,
Equality Talk
Antisubordination and Anticlassification Values in Constitutional S…
Reva B. Siegel,
Equality Talk
Antisubordination and Anticlassification Values in Constitutional Struggles Over Brown
, 117
Harv. L. Rev
. 1470, 1472-73 (2004);
see also
Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954) (noting that the separation of black students “solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone”).
453
2013 Report Card for America’s Infrastructure
, Am. Soc’y Civ. Engineers
3 (Mar. 2013), http://www.…
2013 Report Card for America’s Infrastructure
, Am. Soc’y Civ. Engineers
3 (Mar. 2013),
[http://perma.cc/X69J-GPU4].
454
Id.
at 3 (“Six infrastructure sectors benefited from either an increase in private investment, t…
Id.
at 3 (“Six infrastructure sectors benefited from either an increase in private investment, targeted efforts in cities and states to make upgrades or repairs, or from a one-time boost in federal funding.”);
id.
at 4 (“[I]nvesting in infrastructure is essential to support healthy, vibrant communities . . . [and] is also critical for long-term economic growth, increasing GDP, employment, household income, and exports.”).
455
Id.
at 48-50. Moreover, in the United States $12.8 billion is spent annually on bridge constructio…
Id.
at 48-50. Moreover, in the United States $12.8 billion is spent annually on bridge construction and refurbishment, over $75 billion has been invested in railroads since 2009, and over $52 billion has been spent on public transit since 2008.
Id.
at 6-7, 53.
456
See supra
Part III.A.2 (discussing exclusionary zoning).
See supra
Part III.A.2 (discussing exclusionary zoning).
457
Daniel R. Mandelker,
Racial Discrimination and Exclusionary Zoning: A Perspective on Arlington Hei…
Daniel R. Mandelker,
Racial Discrimination and Exclusionary Zoning: A Perspective on Arlington Heights
, 55
Tex. L. Rev
. 1217, 1219 (1977). Of course, this approach has not seen much traction since the time of Mandelker’s writing.
458
Katyal suggests that governments could “redesign city streets to reduce crime . . . [by altering…
Katyal suggests that governments could “redesign city streets to reduce crime . . . [by altering] the placement of bus stops and other public transit facilities so that they are not near alleys and other easy escape routes.” Katyal,
supra
note 21, at 1095. The same infrastructure could be altered so that it no longer divides and cuts off neighborhoods, and instead increases access.
459
See, e.g.
, National Environmental Policy Act, 42 U.S.C. §§ 4321-4347 (2012); California Environm…
See, e.g.
, National Environmental Policy Act, 42 U.S.C. §§ 4321-4347 (2012); California Environmental Quality Act,
Cal. Pub. Res. Code
§§ 21000-21189.3 (West 2012).
460
Similarly, perhaps inclusiveness could be used as a screening criterion for projects that require …
Similarly, perhaps inclusiveness could be used as a screening criterion for projects that require grants, including those for housing, transportation, or community development.
461
This was the argument made in Chinese Staff & Workers’ Ass’n v. Burden, 910 N.Y.S.2d 761 (N.Y.…
This was the argument made in Chinese Staff & Workers’ Ass’n v. Burden, 910 N.Y.S.2d 761 (N.Y. App. Div. 2011).
462
Exec. Order No. 12,898, 59 Fed. Reg. 7629 (Feb. 11, 1994).
Exec. Order No. 12,898, 59 Fed. Reg. 7629 (Feb. 11, 1994).
463
For a detailed overview of Executive Order 12,898 and its efficacy, see generally Amanda K. Franze…
For a detailed overview of Executive Order 12,898 and its efficacy, see generally Amanda K. Franzen,
The Time Is Now for Environmental Justice: Congress Must Take Action by Codifying Executive Order 12898
, 17
Penn. St. Envtl. L. Rev.
379 (2009). The order directs that each Federal agency “[t]o the greatest extent practicable and permitted by law . . . shall make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.” Exec. Order No. 12,898, 59 Fed. Reg. at 7629.
464
Exec. Order No. 12,898, 59 Fed. Reg. at 7632-33 (
noting that it is
“not intended to, nor does it…
Exec. Order No. 12,898, 59 Fed. Reg. at 7632-33 (
noting that it is
“not intended to, nor does it create any right, benefit, or trust responsibility, substantial or procedural, enforceable at law or equity by a party against the United States”). Moreover, the order states that it should not be “construed to create any right to judicial review involving compliance or noncompliance of the United States, its agencies, its officers, or any other person.”
Id.
at 7633.
465
See
Joshua Glasgow,
Not in Anybody’s Backyard? The Non-Distributive Problem with Environmental J…
See
Joshua Glasgow,
Not in Anybody’s Backyard? The Non-Distributive Problem with Environmental Justice
, 13
Buff
Envtl. L.J.
69, 113 (2005).
466
Franzen,
supra
note 463, at 389-90 (highlighting the failures of the order by showing how the Bush…
Franzen,
supra
note 463, at 389-90 (highlighting the failures of the order by showing how the Bush Administration was able to roll back many of the gains made in environmental justice during the 1990s through cuts to the EPA’s budget regarding environmental justice oversight, including Superfund).
467
See, e.g.
, California Environmental Quality Act,
Cal. Pub. Res. Code
§§ 21000–21189.3 (West 20…
See, e.g.
, California Environmental Quality Act,
Cal. Pub. Res. Code
§§ 21000–21189.3 (West 2012); New York State Environmental Quality Review Act,
N.Y. Envtl. Conserv. Law
§§ 8-0101 to -0117 (McKinney 2015).
468
See, e.g
., Todd Nelson, Save Tara
and the Modern State of the California Environmental Quality Act
See, e.g
., Todd Nelson, Save Tara
and the Modern State of the California Environmental Quality Act
, 45
Loy. L.A. L. Rev.
289, 292-93 (2011) (“CEQA challenges have become an effective tool to block projects that opponents deem undesirable, even if the reasons for their opposition are seemingly unrelated to environmental impacts.”).
469
Winner,
supra
note 28, at 126;
see also supra
note 30 (summarizing cases suggesting that the ADA w…
Winner,
supra
note 28, at 126;
see also supra
note 30 (summarizing cases suggesting that the ADA was needed due to the neglect of disabled individuals’ needs).
470
Robin Paul Malloy,
Inclusion by Design: Accessible Housing and Mobility Impairment
, 60
Hastings L.…
Robin Paul Malloy,
Inclusion by Design: Accessible Housing and Mobility Impairment
, 60
Hastings L.J.
699, 710 (2009).
471
Interestingly, many individuals with disabilities self-identify as members of a distinct minority …
Interestingly, many individuals with disabilities self-identify as members of a distinct minority group consisting of people with disabilities. Harlan Hahn,
Antidiscrimination Laws and Social Research on Disability: The Minority Group Perspective
, 14
Behav. Sci. & L.
41, 48 (1996).
472
The main entrance must be made accessible if possible.
See Americans with Disabilities Act Accessi…
The main entrance must be made accessible if possible.
See Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities
U.S. Architectural & Transp. Barriers Compliance Bd.
§ 4.13 (2002),
[http://perma.cc/W6RS-DFKQ]. Similarly, the Fair Housing Amendments Act of 1988 prohibits discrimination in the sale or rental of housing due to a handicap, and Congress intended the Act to be a “clear pronouncement of a national commitment to end the unnecessary exclusion of persons with handicaps from the American mainstream.”
H.R. Rep.
No. 100-711, at 18 (1988).
473
Some city officials say that they will revise the zoning code to disallow future poor doors.
See
J…
Some city officials say that they will revise the zoning code to disallow future poor doors.
See
Janet Babin,
New York Skyscraper’s Separate ‘Poor Door’ Called A Disgrace,
NPR
(July 30, 2014, 4:59 AM),
[http://perma.cc/V6PJ-YD2B].
474
Winner,
supra
note 28, at 125.
Winner,
supra
note 28, at 125.
475
42 U.S.C. § 12183(a)(1) (2012) (asserting that, under the ADA, discrimination includes “a failu…
42 U.S.C. § 12183(a)(1) (2012) (asserting that, under the ADA, discrimination includes “a failure to design and construct facilities for first occupancy . . . that are readily accessible to and usable by individuals with disabilities”).
476
541 U.S. 509 (2004).
541 U.S. 509 (2004).
477
San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 17-18 (1973).
San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 17-18 (1973).
478
“Recognizing that failure to accommodate persons with disabilities will often have the same prac…
“Recognizing that failure to accommodate persons with disabilities will often have the same practical effect as outright exclusion, Congress required the States to take reasonable measures to remove architectural and other barriers to accessibility.” 541 U.S. at 531.
479
“In the case of facilities built or altered after 1992, the regulations require compliance with …
“In the case of facilities built or altered after 1992, the regulations require compliance with specific architectural accessibility standards. But in the case of older facilities, for which structural change is likely to be more difficult, a public entity may comply with Title II by . . . relocating services to alternative, accessible sites and assigning aides to assist persons with disabilities in accessing services.”
Id.
at 532 (internal citation omitted).
480
See
Civil Div.,
Reaching Out to Customers With Disabilities, Lesson Four
U.S. Dep’t Just.,
http:/…
See
Civil Div.,
Reaching Out to Customers With Disabilities, Lesson Four
U.S. Dep’t Just.,
[http://perma.cc/U4JC-YQP4] (“Barrier removal is considered ‘readily achievable’ when it can be easily accomplished, without much difficulty or expense.”).
481
See
Robert G. Schwemm,
Barriers to Accessible Housing: Enforcement Issues in “Design and Constru…
See
Robert G. Schwemm,
Barriers to Accessible Housing: Enforcement Issues in “Design and Construction” Cases Under the Fair Housing Act
, 40
U. Rich. L. Rev
753, 754 (2006).
482
See, e.g.
, Jane Aiken & Katherine Goldwasser,
The Perils of Empowerment
, 20
Cornell J.L. & Pub. Po…
See, e.g.
, Jane Aiken & Katherine Goldwasser,
The Perils of Empowerment
, 20
Cornell J.L. & Pub. Pol’y
139, 173 (2010) (“[T]he anti-smoking campaign provides a powerful example of how such a campaign can change perceptions of harm and, in so doing, shift the social norms about getting involved.”); Eric Biber,
Climate Change and Backlash
, 17
N.Y.U. Envtl. L.J.
1295, 1339 (2009) (“Norm-shifting could be accomplished through educational efforts using schools, public service announcements, etc. Current examples of fairly successful environmental norm-shifting efforts in the United States include the Smokey Bear campaign by the U.S. Forest Service to encourage the safe use of fire in natural areas, and anti-littering campaigns.”).
483
Every time the author presented this Article, numerous commenters provided her with examples of ar…
Every time the author presented this Article, numerous commenters provided her with examples of architectural exclusion in their own towns.
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Robert A Caro
The Power Broker: Robert Moses and the Fall of New York
571 (1974);
Pierre Christin & Olivier Balez, Robert Moses: The Master Builder of New York City
(2014); Paul Goldberger,
Robert Moses, Master Builder, Is Dead at 92
N.Y. Times
, July 30, 1981,
[http://perma.cc/5EAH-29NE].
These offices included “New York City Parks Commissioner, head of the State Parks Council, head of the State Power Commission and chairman of the Triborough Bridge and Tunnel Authority.” Goldberger,
supra
note 1.
Langdon Winner,
Do Artifacts Have Politics?
, 109
Daedalus
121, 123 (1980);
see also
Caro
supra
note 1, at 318.
Caro
supra
note 1, at 318-19;
see also
Phillip Lutz,
Where Has the Northern State Gone?
N.Y. Times
, Sept. 11, 1994,
[http://perma.cc/H6ST-TQAL] (“[A] top Moses aide at the Long Island State Park Commission, Sidney M. Shapiro, . . . acknowledged that the bridges had been designed to keep out buses.”).
Steven Paul McSloy,
Breaking the Power of the Power Brokers (Closing Remarks)
, 9
St. John’s J. Legal Comment.
669, 672-73 (1994) (“[T]he bridges spanning the parkway are very low. . . . [T]he bridges were deliberately designed that way in order to prevent buses of city dwellers, and particularly African-Americans, from reaching the Island’s fabled beaches.”).
See
Jason Henderson,
Secessionist Automobility: Racism, Anti-Urbanism, and the Politics of Automobility in Atlanta, Georgia
, 30
Int’l J. Urb. & Regional Res.
293, 297-98 (2006) (noting that the average Atlantan drives 30.5 miles each day despite the existence of a subway system).
See id.
at 298-99 (noting that the “racialized animosity towards transit affectively [sic] produced full automobile dependency for most Atlantans” and that county referenda to join MARTA “failed under a cloud of racialized rhetoric and considerable movements of middle-class whites away from proximity to blacks and to separate majority white suburbs”); s
ee also Lawsuit Seeks Dissolution of Dunwoody, Sandy Springs, Johns Creek, Milton, Chattahoochee Hills
Atl. J.-Const.
, Mar. 29, 2011,
[http://perma.cc/WF87-PRJA] (noting that, according to the 2010 Census, the majority of residents who live in the two counties that make up Atlanta are black, but the majority of residents in the northern suburban areas within those counties are white).
See infra
notes 118-119 (discussing reliance on public transit by the poor and people of color).
City of Memphis v. Greene, 451 U.S. 100, 102-05 (1981); Brief for Petitioner at 8-9,
Greene
, 451 U.S. 100 (No. 79-1176), 1980 WL 339373, at *8-9 (noting that City Council approval took place on January 29, 1974).
10
Greene
, 451 U.S. at 104.
11
Id.
at 119, 129.
12
Id.
at 138 (Marshall, J., dissenting). He was joined in this dissent by Justices Brennan and Blackmun.
13
Id.
at 136 (Marshall, J., dissenting).
14
Prominent legal scholar and critical race theorist Charles Lawrence agreed with Justice Marshall. Writing of
Memphis v. Greene
, he states:
[T]he peace and quiet of a white neighborhood has been weighed against the stigmatization of blacks. The decision to build the barrier issues the statement that white tranquility is more important than black pride. In the contextual reality of Memphis, the message is as clear as if the declaration were painted on the wall itself.
Charles R. Lawrence III,
The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism
, 39
Stan. L. Rev
. 317, 364 (1987).
15
See infra
Part III (discussing equal protection analysis in the context of exclusionary zoning).
16
See infra
Part I.A (reviewing urban planning literature).
17
See
Norman Williams, Jr.,
Planning Law and Democratic Living
, 20
Law & Contemp. Probs
. 317, 317 (1955) (describing planning as “the process of consciously exercising rational control over the development of the physical environment, and of certain aspects of the social environment, in the light of a common scheme of values, goals, and assumptions”).
18
See, e.g.
, Thomas W. Merrill,
Property and the Right To Exclude
, 77
Neb. L. Rev.
730 (1998) (arguing that exclusion is the “
sine qua non
” of property rights). Some would argue that certain forms of exclusion have beneficial goals and productive ends. For example, the fence that allows children to play near a busy street excludes the children from that street, but does so for reasons that further their health and safety.
19
Lawrence Lessig,
The New Chicago School
, 27
J. Legal Stud.
661, 662-63 (1998).
20
Lawrence Lessig, Commentary,
The Law of the Horse: What Cyberlaw Might Teach
, 113
Harv. L. Rev.
501, 507 (1999).
21
See
Neal Kumar Katyal,
Architecture as Crime Control
, 111
Yale L.J
. 1039, 1041 (2002) (defining “architecture” broadly as “the full range of activities, from building design to city planning, with which architects are concerned”).
22
Lee Tien,
Architectural Regulation and the Evolution of Social Norms
, 7
Yale J.L. & Tech
. 1, 2 (2004-2005).
23
See infra
Part IV.
24
The Article refers to this as “legal exclusion” or “exclusion by law.”
See infra
Part III (discussing methods of legal exclusion).
25
See infra
Part III.B (discussing exclusion through threats of violence).
26
The Article refers to this as “architectural exclusion,” which is a form of physical exclusion.
See infra
Part II (providing examples of architectural exclusion).
27
See, e.g.
, Kim Bell,
Metro’s Bench Dividers at Bus Shelters Seen by Some as Slap at Homeless
St. Louis Post-Dispatch
, Dec. 18, 2013,
[http://perma.cc/VEN4-UY6M]; Michael Van Sickler,
City Hopes Bench Armrests Will Deter Homeless
Lakeland Ledger
(Fla.)
Nov. 27, 1997, at B1,
[http://perma.cc/XJP6-TP2C] (“The city is ordering 28 steel armrests for Munn Park benches in an attempt to keep homeless people from sleeping in the park.”).
28
See
Langdon Winner,
Do Artifacts Have Politics?
, 109
Daedalus
121, 123 (1980) (“In our accustomed way of looking at things like roads and bridges we see the details of form as innocuous, and seldom give them a second thought.”);
see also
Bernward Joerges,
Do Politics Have Artefacts?
, 29
Soc. Stud. Sci.
411, 412 (1999) (describing Winner’s observation that “certain details of form in bridges, streets and roads are habitually taken to be meaningless”).
29
Winner,
supra
note 28, at 124 (discussing Robert Moses);
see also
Leslie Kanes Weisman, Discrimination by Design: A Feminist Critique of the Man-Made Environment
35 (1992) (“[O]ur collective failure to notice and acknowledge how buildings are designed and used to support the social purposes they are meant to serve—including the maintenance of social inequality—guarantees that we will never do anything to change discriminatory design.”). A well-known example of this concept is Brasilia, the capital of Brazil, which was designed to be a highly stylized, modernist projection of the country’s future.
See
James C. Scott, Seeing Like a State: How Certain Schemes To Improve the Human Condition Have Failed
117-32 (1999) (describing the monotonous and anonymous nature of life in highly planned Brasilia, which lacks a vibrant street life and informal places for people to gather).
30
But see infra
Part I.B (providing a review of the existing legal literature addressing physical architecture as regulation). Legal scholarship addressing disability discrimination has focused on environments designed in such a way that they are not accessible to disabled individuals. However, this literature and relevant court cases suggest that exclusion of disabled individuals is generally due to inattention, rather than an animus toward or intent to exclude those individuals.
See, e.g.
, Alexander v. Choate, 469 U.S. 287, 295-96 (1985) (noting that the ADA was needed because disabled individuals had been neglected); Rolf Jensen & Assocs. v. Eighth Judicial Dist. Ct., 282 P.3d 743, 747 (Nev. 2012) (noting that Congress “specifically designed the provisions of the ADA to prevent discrimination stemming from neglect and indifference”). As this Article will explain, architectural exclusion is often the result of an intentional decision to exclude.
31
Katyal,
supra
note 21, at 1042 (noting that “the instinctive reaction of many lawyers is to focus on legal rules, without thinking about the constraint of physical space”).
32
In the legal arena, “regulation” is generally defined as “[c]ontrol over something by rule or restriction.”
Black’s Law Dictionary 1475 (
10th ed.
2014).
These rules or restrictions are most often laws. Regulations are often discussed in the context of administrative law, where the term is defined as “[a]n official rule or order, having legal force, usu[ally] issued by an administrative agency.”
Id.
see also
Administrative Procedure Act, 5 U.S.C. § 551(4), (5) (2014) (defining a “rule” as “an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy” that is created through “rule making”);
id.
§ 551(6) (defining “order” as any authoritative agency action other than a rule created through an adjudication);
John F. Manning & Matthew C. Stephenson, Legislation and Regulation 583-88 (2010) (
discussing regulations promulgated under the Administrative Procedure Act).
33
Law “directs behavior in certain ways” and threatens individuals with sanctions if they do not comply. Lessig,
supra
note 19, at 662. Further, the legal process is generally thought to entail legitimacy, and one can easily discover which entity created a given law and the process through which it did so. Tien,
supra
note 22, at 11-12 (noting that the law is perceived as legitimate and “that legitimacy and public deliberation are integral to our notion of law”).
34
As other scholars have argued, norms constrain behavior through community enforcement, not through some official rule or source.
See, e.g.
, Lessig,
supra
note 19, at 662;
see also
Richard A. Posner,
Social Norms and the Law: An Economic Approach
, 87
Am. Econ. Rev.
365, 365 (1997) (defining a norm as an unofficial rule).
35
Lessig,
supra
note 19, at 663 (“Markets regulate through the device of price.”).
36
In practice, it is hard to separate these categories from one another.
Id.
at 662-63.
See also
Sarah B. Schindler,
Banning Lawns
, 82
Geo. Wash. L. Rev.
394, 425 & nn. 212-13 (2014).
37
See, e.g.
William A. Fischel, The Homevoter Hypothesis: How Home Values Influence Local Government Taxation, School Finance, and Land-Use Policies (2001)
; R.H. Coase,
The Problem of Social Cost
, 3
J.L. & Econ.
1 (1960); Jon Elster,
Social Norms and Economic Theory
, 3
J. Econ. Perspectives
99 (1989); Cass R. Sunstein,
Social Norms and Social Roles
, 96
Colum. L. Rev
. 903 (1996).
38
See
sources cited
supra
note 32 (addressing common definitions of “regulation”).
39
See
Winner,
supra
note 28, at 124 (“Histories of architecture, city planning, and public works contain many examples of physical arrangements that contain explicit or implicit political purposes.”);
see also
Lawrence J. Vale, Architecture, Power & National Identity
3 (1992) (“Throughout history and across the globe, architecture and urban design have been manipulated in the service of politics.”); Allyn West,
Could Glenn Beck Bring Independence to Texas?
Swamplot
(Jan. 29, 2013, 3:00 PM),
[http://perma.cc/G2HG-BPH6] (“‘If you really wanna [sic] pass on the secrets, if you really wanna pass on truth, embed it in architecture.’”).
40
Dolores
Hayden, Redesigning the American Dream: Gender, Housing & Family Life
(1984) (discussing the role of home design in furthering stereotypes about a woman’s “place”);
Edward W Soja, Seeking Spatial Justice
46 (2010) (stating his aim to “heighten awareness of the powerful grip on our lives that comes from the political organization of space as it is imposed from above as a form of social control and maintained by the local state, the legal system, and the land market”);
Vale
supra
note 39
, at 9 (“[D]ecisions about urban design may also foster mutually reinforcive alienation and empowerment by magnifying hierarchies in the outdoor public realm.”);
Katyal,
supra
note 21, at 1045 (arguing that “[t]here is no form of neutral architecture.”)
Of course, some may disagree. For example, Langdon Winner wrote, “To discover either virtues or evils in aggregates of steel, plastic, transistors, integrated circuits, and chemicals seems just plain wrong, a way of mystifying human artifice and of avoiding the true sources, the human sources of freedom and oppression, justice and injustice. Blaming the hardware appears even more foolish than blaming the victims when it comes to judging the conditions of public life.” Winner,
supra
note 3, at 122.
41
See, e.g.,
Alexandra Lange, Writing About Architecture: Mastering the Language of Buildings and Cities
112-13 (2012);
see also
The Psychological Dimension of Architectural Space
, 46
Progressive Architecture
159 (Apr. 1965) (“The history of architecture contains innumerable examples of architectural spaces that have been consciously manipulated to draw people together or to disperse them.”).
42
Rober Mier,
Some Observations on Race in Planning
, 60
J. Am. Plan. Ass’n
235, 236, 239 (1994) (emphasis omitted).
43
See, e.g.
id.
at 235-36 (“Race is a powerful aspect of most planning situations in urban areas, yet it too often is the
last
way a problem, or especially an opportunity, is framed. . . . [R]ace should be the first way to frame a local planning or development problem.”) (emphasis omitted).
44
Nicholas Blomley,
Civil Rights Meet Civil Engineering: Urban Public Space and Traffic Logic
, 22
Can. J.L. & Soc.
55 (2007);
see also
Nicholas Blomley, Rights of Passage: Sidewalks and the Regulation of Public Flow
(2011) (suggesting that the layout of sidewalks is a form of regulation that shapes interactions in society). It is, of course, possible that some planners recognize—or even intend—the likely exclusionary effects of their architectural decisions, yet make choices that will result in those outcomes. In the past, decisions made with the intent to exclude could be explained by prevailing norms.
See infra
Part III.B (discussing social norms and racism in the United States). Currently, they may be explained, in part, by Bill Fischel’s Homevoter Hypothesis, which suggests that most local government decisions can be understood by considering how a homeowner would want a municipal official to act or vote in order to maximize the homeowner’s most valuable asset—her home.
See
Fischel,
supra
note 37;
see also
Vicki Been et al.,
Urban Land-Use Regulation: Are Homevoters Overtaking the Growth Machine?
, 11
J. Empirical Legal Stud.
227 (2014) (finding that the Homevoter Hypothesis applies in urban as well as suburban locations). Wealthy property owners have sufficient power, education, and organizational ability to convince their elected officials to vote in ways that will protect their property values.
Id.
Thus, in examining why a city planner or elected official would place infrastructure in an exclusionary way, one should consider how a homeowner would view the impact of the infrastructure decision on her property value. To the extent that property values are increased by racially or socioeconomically homogenous neighborhoods, this may be the very result that wealthy, white homeowners desire.
See infra
Part III.A (discussing examples of wealthy communities desiring to keep out those they view as undesirable).
45
See
Catherine L. Ross & Nancey Green Leigh,
Planning, Urban Revitalization, and the Inner City: An Exploration of Structural Racism
, 14
J. Plan. Literature
367, 379 (2000) (“The planning field is not alone in its culpability for failed revitalization efforts, but the misappropriation of its tools has, perhaps more than in other fields, made it a facilitator of social exclusion and economic isolation.”).
46
But see
Katyal,
supra
note 21 (describing the use of architecture to control crime); Norman W. Spaulding,
The Enclosure of Justice: Courthouse Architecture, Due Process, and the Dead Metaphor of Trial,
24
Yale J.L. & Human
. 311, 311 (2012) (describing the relationship between “justice and the space in which it operates,” and highlighting a dearth of analysis of physical space and courthouse architecture in the context of “[t]heories of justice”).
47
See
Katyal,
supra
note 21, at 1044;
see also
James M. Anderson et al.,
Reducing Crime by Shaping the Built Environment with Zoning: An Empirical Study of Los Angeles
, 161
U. Pa. L. Rev
. 699, 703 (2013) (noting that cities can reduce crime by shaping the built environment, and recognizing that “[t]his idea has received considerably more attention in the urban planning literature than in legal scholarship.”).
48
See infra
note 57.
49
Richard H Thaler & Cass R. Sunstein
Nudge: Improving Decisions About Health, Wealth, and Happiness 3
(2008) (“As good architects know, seemingly arbitrary decisions . . . will have subtle influences on how the people who use the building interact.”).
50
Lessig,
supra
note 20, at 507-08. Katyal discusses additional forms of regulation through architecture, or design solutions to problems:
Fast-food restaurants use hard chairs that quickly grow uncomfortable so that customers rapidly turn over; elevator designers place the numerals and floor indicator lights over people’s heads so that they avoid eye contact and feel less crowded; supermarkets have narrow aisles so that customers cannot easily talk to each other and must focus on the products instead.
Katyal,
supra
note 21, at 1043.
51
See
Katyal,
supra
note 21, at 1042 (“Outside of cyberlaw, contemporary legal scholars and government have not given sufficient attention to architecture . . . .”).
52
Tien,
supra
note 22, at 5 (arguing that architectural regulation is “more dangerous” than legal regulation because it has less public visibility and can be used to prohibit the possibility of certain experiences, thus risking distorted norm formation).
53
Susan Sturm,
The Architecture of Inclusion: Advancing Workplace Equity in Higher Education
, 29
Harv. J.L. & Gender
247 (2006);
see also
Norman W. Spaulding,
Constitution as Countermonument: Federalism, Reconstruction, and the Problem of Collective Memory
, 103
Colum. L. Rev.
1992 (2003) (describing ways in which the design of monuments serve as a metaphor for the new federalism).
54
Thaler & Sunstein
supra
note 49, at
(defining a “choice architect” as one who “has the responsibility for organizing the context in which people make decisions”); Eric J Johnson et al.,
Beyond Nudges: Tools of a Choice Architecture
, 23
Marketing Letters
487, 488 (2012) (“While it is tempting to think that choices can be presented in a ‘neutral’ way . . . , the reality is that there is no neutral architecture.”).
55
Thaler & Sunstein
supra
note 49, at 3;
see also
Matthew A Smith & Michael S. McPherson,
Nudging for Equality: Values in Libertarian Paternalism
, 61
Admin. L. Rev
. 323, 323 (2009).
56
See
Tien,
supra
note 22, at 15 (“Although architectural regulation is not inherently associated with technological change, these issues are raised most clearly in that context.”); Katyal,
supra
note 21, at 1041 (“[T]he real world may be more amenable to architectural constraints than the Internet.”).
57
For more on law and geography, see generally Gordon L. Clark
Foreword
in
The Legal Geographies Reader: Law, Power, and Space,
at x (Nicholas Blomley et al. eds., 2001) (noting that this is a new field of research). Even earlier, Foucault has been “credited with conceptualizing the relationship between space, architecture, and social power.” Elise C. Boddie
, Racial Territoriality
, 58
UCLA L. Rev.
401, 442 (2010);
see
Richard Thompson Ford,
The Boundaries of Race: Political Geography in Legal Analysi
s, 107
Harv. L. Rev.
1841, 1857 (1994); Paul Rabinow,
Ordonnance, Discipline, Regulation: Reflections on Urbanism
in
The Anthropology of Space and Place 353-61
(2003);
see also
Chris Philo,
Michel Foucault
in
Key Thinkers on Space and Place
121, 126 (Phil Hubbard et al. eds., 2004) (noting that Foucault addresses “the physical divide of segregation and exclusion that inscribes into bricks and mortar a distancing of the Other from the Same” (internal citations omitted)).
58
David Delaney, Race, Place, and the Law: 1836-1948,
at
9 (1998)
59
Lior Jacob Strahilevitz,
Exclusionary Amenities in Residential Communities,
92
Va. L. Rev.
437, 441, 487 (2006) (providing examples such as golf courses, tennis courts, polo grounds, in-home elevators, and concierges).
60
Importantly, he also argues—in a similar vein to this Article—that extra-legal exclusion can circumvent traditional antidiscrimination laws.
Id.
at 437.
61
See
Fischel,
supra
note 37 (describing the Homevoter Hypothesis);
see also infra
Part III.A.1 (describing intentional exclusion in residential communities).
62
See
Blomley,
supra
note 44, at 56.
63
See, e.g.
, Keith Aoki,
Race, Space, and Place: The Relation Between Architectural Modernism, Post-Modernism, Urban Planning, and Gentrification
, 20
Fordham Urb. L.J.
699 (1993) (explaining how architectural preferences influence and contribute to patterns of racial distribution); John O. Calmore,
Racialized Space and the Culture of Segregation: “Hewing a Stone of Hope from a Mountain of Despair
143
U. Pa. L. Rev. 1233 (1995) (
discussing racialized space as urban apartheid); Ford,
supra
note 57 (discussing the role of segregation in disempowerment); Richard Thompson Ford,
Geography and Sovereignty: Jurisdictional Formation and Racial Segregation
, 49
Stan. L. Rev
. 1365 (1997) (addressing differing legal treatment of racially segregated electoral districts and racially segregated local governments); Michael Keith & Malcolm Cross,
Racism and the Postmodern City
in
Racism, The City and the State
11 (Michael Keith & Malcolm Cross eds., 1993) (discussing “the architecture of power in the city”).
64
Boddie,
supra
note 57, at 405-06.
65
Id
. at 409.
66
See
Stephen Clowney,
Landscape Fairness: Removing Discrimination from the Built Environment,
2013
Utah L. Rev
1.
67
Boddie,
supra
note 57, at 414 n.63;
id.
at 401 (arguing that places “have a racial identity and meaning based on socially engrained racial biases regarding the people who inhabit, frequent, or are associated with particular places and racialized cultural norms of spatial belonging and exclusion”); Clowney,
supra
note 66, at 1;
see also
James S. Duncan & Nancy G. Duncan, Landscapes of Privilege: The Politics of the Aesthetic in an American Suburb
4 (2003) (“A seemingly innocent appreciation of landscapes and desire to protect local history and nature can act as subtle but highly effective mechanisms of exclusion and reaffirmation of class identity.”).
68
It is difficult to prove that an issue has been overlooked, as this requires proving a thing’s nonexistence or underreporting. Here, I attempt it by examining places where I would expect to find mention of architectural exclusion, and not finding it there, suggest that it has been overlooked.
See, e.g.
Douglas N. Walton
Argumentation Schemes for Presumptive Reasoning
119 (1996) (“In some circumstances it can safely be assumed that if a certain event had occurred, evidence of it could be discovered by qualified investigators. In such circumstances it is perfectly reasonable to take the absence of proof of its occurrence as positive proof of its nonoccurrence.” (quoting
Irving Copi
Introduction to Logic
102 (1982)).
69
See
Boddie,
supra
note 57, at 414 n.63;
see also
Richard H. Chused,
Gendered Space
, 42
Fla. L. Rev
. 125, 125-35 (1990) (arguing that law has allowed the creation of gendered spaces); Johnson,
supra
note 54, at 488 (noting that “[c]hoice architects have significant, if perhaps underappreciated, influence, much like the architect of a building who affects the behaviors of the building’s inhabitants through the placement of doors, hallways, staircases, and bathrooms”).
70
Robert C Ellickson et al., Land Use Controls
725-810 (4th ed. 2013).
71
The text uses this term as a catchall that includes, for example, extended families, homosexual couples, and unrelated college roommates living together.
Id.
at 787-94.
72
Id.
at 725-810 (the chapter is organized into five categories, including the four mentioned in the body of the text).
73
Id.
at 746. The text does quote Jon C. Dubin,
From Junkyards to Gentrification: Explicating a Right to Protective Zoning in Low-Income Communities of Color
77 Minn. L. Rev.
739, 760-61 (1993), which acknowledges “the disproportionate displacement of African-American families through urban renewal, highway, and local redevelopment projects,” but this is as close as the text gets to a discussion of architectural exclusion.
See also
David Callies et al., Land Use
573-74 (6th ed. 2012) (discussing exclusionary zoning and stating, “Local governments are most imaginative in regulating land use in facially innocuous ways that have the effect of excluding, and all too often been intended to exclude, racial, religious and economic minorities . . . . Among the more common techniques: minimum lot area requirements, minimum floor area requirements, limitations on multifamily dwellings and manufactured housing, minimum yard, setback and other extraordinary bulk requirements, and growth caps” but not mentioning architectural exclusion);
Daniel P. Selmi et al., Land Use Regulation
697-737 (4th ed. 2012) (discussing discrimination but focusing only on exclusionary zoning);
Stewart E. Sterk & Eduardo M. Penalver, Land Use Regulation
295-331 (2011) (land-use text whose section on discrimination discusses discrimination against racial and ethnic minorities, discrimination based on disability, and discrimination based on family composition, but does not address architectural exclusion).
74
See infra
Part IV.B;
see also
Boddie,
supra
note 57, at 408 (“[T]he ongoing spatial isolation and marginalization of people of color as a group remains a significant problem. . . . [B]ut constitutional law has mostly ignored this context, except in cases involving overt discrimination, or where the state explicitly uses racial classifications to draw, reinforce, or create physical or jurisdictional boundaries.”).
75
See
Vicki Been,
Locally Undesirable Land Uses in Minority Neighborhoods: Disproportionate Siting or Market Dynamics?
, 103
Yale L.J.
1383 (1994); Richard J. Lazarus,
Pursuing “Environmental Justice”: The Distributional Effects of Environmental Protection
, 87
Nw. U. L. Rev.
787 (1993).
76
See
Michelle Wilde Anderson,
Mapped Out of Local Democracy
, 62
Stan. L. Rev
. 931 (2010); Gershon M. Ratner,
Inter-Neighborhood Denials of Equal Protection in the Provision of Municipal Services
, 4
Harv. C.R.-C.L. L. Rev
. 1 (1968);
see also
Ammons v. Dade City, Fla., 783 F.2d 982 (11th Cir. 1986) (holding that the city intentionally discriminated against African Americans by providing them with unequal municipal services, including street paving and storm water drainage facilities); Dowdell v. City of Apopka, Fla., 698 F.2d 1181 (11th Cir. 1983) (affirming district court’s finding of discriminatory intent where the city maintained a geographically and racially segregated municipal services system).
77
Tien,
supra
note 22, at 22 (“Government action that architects social settings and equipment can regulate our behavior as effectively as can sanction-backed rules.”);
see also
Thaler & Sunstein
supra
note 49, at
11 (using architecture in the broad sense, stating, “[S]ometimes the architecture is taken for granted and could benefit from some careful attention.”).
78
See infra
Part IV.
79
Because of architectural exclusion’s hidden nature, one could argue that courts should be even more diligent about policing the exclusionary effects of an architectural decision than a legal one.
80
See supra
notes 3-5.
81
Winner,
supra
note 28, at 123-24.
82
Id
. at 124.
83
Id
. at 123.
84
See generally infra
Part III (discussing the evolution of court decisions striking down racially discriminatory laws).
85
Patrick J McMahon et al., An Analysis of Factors Contributing to “Walking Along Roadway” Crashes: Research Study and Guidelines for Sidewalks and Walkways 8 (2002),
[http://perma.cc/HB7Z-B5GH] (determining that “the likelihood of a site with a paved sidewalk being a crash site is 88.2 percent lower than a site without a sidewalk. . . . [T]he presence of a sidewalk clearly has a strong beneficial effect of reducing the risk of a ‘walking along roadway’ pedestrian/motor vehicle crash”).
86
Often, decisions are intentionally race-based, as will be discussed in this section. However, sometimes decisions are made with the knowledge that there might be a race-based effect, but with the actual purpose of the decision not being race-based. For example, the decision to forego sidewalks in a community could have motivations other than exclusion, such as a desire to reduce impervious cover or maintain a rural feel, even if the effect is also exclusionary.
87
James W Loewen, Sundown Towns: A Hidden Dimension of American Racism
254-55 (2006) (describing a number of U.S. towns that excluded African Americans, either formally or informally).
88
Episode 51: The Arsenal of Exclusion
, 99% Invisible Podcast (Apr. 4, 2012) (downloaded at
[http://perma.cc/2ZGF-4KVF]) (describing one-way streets that prohibit turns into a fancy neighborhood);
see also
Ann S. Kim,
Maine Architects Look To Make Over Misfit Street
Portland Press Herald
, Sept. 20, 2011,
[http://perma.cc/7NJ2-WCAU] (describing an arterial road with concrete median barriers that was constructed as part of urban renewal with the goal of creating a ring of multi-lane roads around the city so that cars could easily and quickly get from one side of the city to the other).
89
Bryan Goebel,
Divided by a Highway, East Palo Alto Looks To Reconnect Its West Side
Streetsblog SF (
Oct. 25, 2012),
[http://perma.cc/B8C2-LGHP].
90
See generally
Peter Marcuse,
The Enclave, the Citadel, and the Ghetto: What Has Changed in the Post-Fordist U.S. City
, 33
Urb. Aff. Rev.
228, 231 (1997) (defining ghetto as a “spatially concentrated area used to separate and to limit a particular involuntarily defined population group (usually by race) held to be, and treated as, inferior by the dominant society”).
91
Gary S Becker & Kevin M. Murphy, Social Economics: Market Behavior in a Social Environment
71 (2000).
92
But see
Marcuse,
supra
note 90, at 229 (“Space and race have been combined in the United States today to produce a new ghetto that is different from the ghettos of the past and from the immigrant enclaves of the past and present. The U.S. ghetto today is an outcast ghetto, differing in its definition and role from the historic black ghettos in that its inhabitants are the excluded and the castaway rather than the subordinated and restricted.”).
93
Sarah Hulett,
Racial, Regional Divide Still Haunt Detroit’s Progress
, NPR (Sept. 11, 2012),
[http://perma.cc/Z2EN-AZWZ]; Steve Neavling,
Wall Built To Separate White, Black People Near 8 Mile Stays Strong, Colorful & Relevant
Motor City Muckraker
(Apr. 22, 2013),
[http://perma.cc/U66G-UYK9].
94
See
Justin P. Steil,
Innovative Responses to Foreclosures: Paths to Neighborhood Stability and Housing Opportunity
, 1
Colum. J. Race & L.
63, 69 n.14 (2011) (“The four-tiered underwriting system developed by the Federal Home Owners Loan Corporation (HOLC) in the early 1930’s systematically undervalued racially mixed neighborhoods and strongly discouraged lending in integrated or primarily non-white communities. The Federal Housing Authority . . . express[ed] concern about the impact of ‘incompatible racial or nationality groups’ on property values and stating that, ‘if a neighborhood is to retain stability, it is necessary that properties shall continue to be occupied by the same social and racial classes.’” (quoting
Gregory Squires, Capital and Communities in Black and White
53 (1994))).
See generally
Kenneth T. Jackson, Crabgrass Frontier
203-18 (1985) (describing FHA and loan programs).
95
Hulett,
supra
note 93.
96
See
John R. Logan &
Brian J. Stults,
The Persistence of Segregation in the Metropolis: New Findings from the 2010 Census
US2010 Project
6 (2011),
[http://perma.cc/CVG4-K47D]
ranking the Detroit metropolitan area number one in black-white segregation while noting that Detroit
had substantial declines in segregation for the first time since 1980,” which “coincided with very substantial declines in the central city black population[] . . . as part of the fallout from the recession and foreclosure crisis”);
see also
Kyle Vanhemert,
The Best Map Ever Made of America’s Racial Segregation
Wired
(Aug. 26, 2013, 6:30 AM),
[http://perma.cc/YBR7-QGUV] (describing comprehensive maps made by a University of Virginia researcher using 2010 U.S. Census data to illustrate the racial makeup of major metropolitan areas, including one for Detroit that depicts Eight Mile Road as a “sharp racial dividing line”).
97
Sari Bashi,
Bad Fences
Legal Aff
., July-Aug. 2002, at 13 (noting that ninety percent of the residents in the housing project are African-American, while seventy-seven percent of residents in Hamden are white); Benjamin Mueller,
In Connecticut, Breaking a Barrier Between a Suburb and Public Housing
N.Y. Times
, July 11, 2014,
[http://perma.cc/HNJ9-EAZX] (noting that the wall was 1500 feet long and twelve feet high).
98
Bashi,
supra
note 97 (“Because of the fence, West Rock is one of the country’s most isolated public housing projects. There is only one road out, and it winds past a university, a cemetery, and an Army Reserve office before reaching city streets.”).
99
Paul Bass,
New Haven-Hamden “Berlin Wall” Coming Down
New Haven Indep.
(May 4, 2014, 3:49 PM),
[http://perma.cc/M638-G65R]; Ben Mueller,
What Doesn’t Love a Wall
, 45
New J.
, (2012),
[http://perma.cc/C8UK-GKYU].
100
Bass,
supra
note 99.
101
Id.
102
Associated Press,
Hamden-New Haven Fence To Come Down Today
NBC Conn.
(May 12, 2014, 3:10 PM),
];
see also
Bass,
supra
note 99 (“The federal government began a civil-rights investigation that could lead to a lawsuit against the town of Hamden over the fence, and prevent the town from receiving any federal money.”).
103
Thompson v. U.S. Dep’t of Hous. & Urban Dev., 348 F. Supp. 2d 398, 428 (D. Md. 2005).
104
Id
. at 404, 427, 428 (stating that plaintiffs, African-American residents of public housing in Baltimore County, asserted that the local housing authority’s practices resulted in segregation and discrimination in violation of their Equal Protection rights).
105
Id.
at 429, n.56;
see also
Daniel D’Oca,
Perimeter Fence
Arsenal Exclusion & Inclusion
(Aug. 8, 2010, 10:51 AM),
[http://perma.cc/EZ6S-AWJ4]; Erin Texeira,
Plans To Fence in Hollander Ridge Killed
HUD Officials Refuse To Help City, County Pay for the Project
Balt. Sun
, Aug. 28, 1996,
[http://perma.cc/MLT4-YNUV] (“After residents in Rosedale . . . complained about rising crime and decreased property values in their middle-class neighborhood, city and county officials agreed to help pay for an 8-foot-high wrought-iron fence.”).
106
See generally
Edward J. Blakely & Mary Gail Snyder
Fortress America: Gated Communities in the United States
(1997) (discussing municipal debates surrounding gated communities); Setha M. Low,
The Edge and the Center: Gated Communities and the Discourse of Urban Fear
, 103
Am. Anthropologist
45, 45 (2001) (noting that gated communities create “a landscape that encodes class relations and residential (race/class/ethnic/gender) segregation more permanently in the built environment”).
107
See
Jerry L. Anderson et al.,
A Study of American Zoning Board Composition and Public Attitudes Toward Zoning Issues
, 40
Urb. Law
. 689, 710 (2008) (“Historically, gated communities have been seen as mostly white professional enclaves, contributing to social segregation by race and class.”); Steven Siegel,
The Public Interest and Private Gated Communities: A Comprehensive Approach to Public Policy That Would Discourage the Establishment of New Gated Communities and Encourage the Removal of Gates from Existing Private Communities
, 55
Loy. L. Rev
. 805, 811 (2009) (“Although gated communities are subject to general federal and state nondiscrimination laws, these communities nevertheless have been found to be ‘succe[ssful] in keeping out minorities and large families.’” (footnote omitted)).
108
See, e.g.
La Habra Heights, Cal.
Mun. Code
§ 7.3.20(E)(2) (2013),
] (prohibiting “[g]ates or guardhouses that restrict access to residential neighborhoods, subdivisions, and multi-lot developments” in the Residential-Agricultural Zone);
Carrboro, N.C., Land Use Ordinance
art. X, § 15-149(c)(6) (1980) (prohibiting “[c]onstruction of gates that prevent access to private roads serving five or more lots or dwelling units”);
2012 Comprehensive Plan
Growth Plan. Comm. 101
(June 12, 2012),
[https://perma.cc/FD55-HHCA] (“Gated communities are not in keeping with the character of Kennebunkport.”).
109
See
Howard Blume,
La Habra Heights Shuts the Gates : Privacy: Council Majority Calls Action To Bar Gated Communities a Stand Against Elitism. Real Estate Industry Leaders Express Dismay.
L.A. Times
, Sept. 20, 1990,
] (noting the rarity of municipal bans on gated communities).
110
See
Transp. Div.,
Traffic Calming in Berkeley
City Berkeley
[http://perma.cc/2ZJG-XQMT] (noting that traffic diverters were first installed in the mid-1960s “to keep through-traffic from running alongside San Pablo Park” and that Berkeley’s City Council adopted a Traffic Management Plan in 1975, which resulted in the installation of many additional diverters and street barriers).
111
Douglas Martin,
Fence Is Not Neighborly in a Suburb of Cleveland
N.Y. Times
, June 27, 1987,
[http://perma.cc/V9E3-PUJA] (“The barricade and three others like it were erected by Shaker Heights in 1976 in the name of traffic control but were immediately perceived as something quite different by some Clevelanders.”).
112
See
Joel Epstein & Santiago Sifre,
Bridgeport: Cutting off Access by the Suburban User: Final Report to the Office of National Drug Control Policy
Abt Associates Incorporated
4 (Sept. 15, 1993),
[http://perma.cc/FNA2-HGNG].
113
Katyal,
supra
note 21, at 1049 n.31. In fact, one year after these barriers were erected, a qualitative ethnographic study of East Bridgeport revealed that open-air drug deals were still prevalent throughout the area.
See
Epstein & Sifre,
supra
note 112, at 8-10. The study showed that drivers responded by parking their cars and walking to buy drugs, and any curbed drug sales often just pushed drug dealers “to go to where the heat is not.”
Id.
at 10.
114
Katyal,
supra
note 21, at 1070 (noting that after placing those barriers, assaults and homicides decreased). In North London, the city closed off a number of roads in order to decrease prostitution-related traffic, which resulted in a decrease in crime and a more peaceful neighborhood.
Id.
115
Of course, these structures might also be put in place to preserve the status quo in a neighborhood that wants to maintain its current state. And although exclusionary infrastructure also affects local residents, who must often take a longer way around and thus may be seen as over-inclusive, many residents are fine with that result, so long as it keeps out “undesired” visitors.
See
Loewen
supra
note 87, at 254 (noting that residents of one “New York city suburb ‘would rather bear the inconvenience of narrow and congested streets on a day-by-day basis than make it easier for the inhabitants of New York City to reach the town.’”).
116
Katyal,
supra
note 21, at 1070.
117
A study revealed that efforts by the City of Bridgeport to curb drug dealing and violence through building demolition and road closures resulted in forcing the drug trade from one side of a neighborhood project to the other.
See
Epstein & Sifre
supra
note
112
, at 8-10.
118
Regina Austin,
Not
Just for the Fun of It!”: Governmental Restraints on Black Leisure, Social Inequality, and the Privatization of Public Space
, 71
S. Cal. L. Rev
. 667, 669 (1998) (“[T]he restraints may operate not on a leisure activity itself, but on the mobility required to engage in the activity. For example, the routing patterns of some urban public transportation systems deliberately make it difficult for central-city residents to get to outlying leisure venues like shopping malls and beaches.”).
119
Id.
see also
Thomas Sanchez et al.,
Moving to Equity: Addressing Inequitable Effects of Transportation Policies on Minorities
Civil Rights Project at Harv. Univ
14 (2003),
[http://perma.cc/DRZ4-L9AH]; Jerett Yan, Comment,
Rousing the Sleeping Giant: Administrative Enforcement of Title VI and New Routes to Equity in Transit Planning
, 101
Calif. L. Rev
. 1131, 1133 (2013) (“The overt de jure discrimination Plessy and Parks faced is largely a relic of this nation’s past; however, transit-related disparities endure. Today, transit policy tends to favor higher-income transit riders over lower-income transit riders, and suburbs over cities.”).
120
White people are also more likely to own cars than people of color.
See, e.g.
, Sanchez et al.,
supra
note 119, at vii (“Just 7 percent of white households do not own a car, compared with 24 percent of African-American households, 17 percent of Latino households, and 13 percent of Asian-American households.”).
121
Id.
(“Nationally, public transportation users are disproportionately minorities with low to moderate incomes. Overall, public transit users are 45 percent white, 31 percent African American, and 18 percent Latino/Hispanic.”);
see also
Adie Tomer et al.,
Missed Opportunity: Transit and Jobs in Metropolitan America
Brookings Inst.
9 (May 2011),
[http://perma.cc/VZJ2-37JM?type=pdf] (“[L]ow-income people are less likely to own cars and depend more on transit than other groups.”); Mark Garrett & Brian Taylor,
Reconsidering Social Equity in Public Transit
, 13
Berkeley Plan.
J.
6, 13 (1999) (“[C]ity residents tend to be poorer, mostly minority, and more transit dependent than suburbanites.”).
122
In addition to providing mobility options to those who are unable to drive due to age, condition, or financial reasons, transit hubs aid those in private vehicles by “freeing up scarce freeway space or making it easier for babysitters, house cleaners, or other car-less service providers to reach their homes.” Strahilevitz,
supra
note 59, at 487. Further, perhaps counter-intuitively, some studies have shown that areas directly surrounding mass transit have reduced crime rates.
See, e.g.
, Richard Block & Carolyn Rebecca Block
, The Bronx and Chicago: Street Robbery in the Environs of Rapid Transit Stations,
in
Analyzing Crime Patterns: Frontiers of Practice
137, 147-48 (Victor Goldsmith et al. eds., 2000) (research based on the Bronx and Chicago). However, there is also some evidence that bus stop locations have been tied to crime, though this research suggests that crime is more tied to the area around the stop rather than to the existence of the stop itself.
See
Katyal,
supra
note 21, at 1095 n.210 (“The location of the bus stop was found to be a critical factor in predicting the crime rate; for example, those bus stops near porous alleys had crime rates that were approximately double those of stops not near alleys. . . . Bus stops near vacant lots also had crime rates at least double those of stops not near such lots.” (citations omitted)).
123
See
Fischel
supra
note 37 (describing the Homevoter Hypothesis).
124
See, e.g.
, Henderson,
supra
note 6, at 299-300 (“In suburban Cobb County[, Atlanta], the chairman of a local anti-tax organization declared that ‘M[etropolitan] A[tlanta] R[egional] T[ransit] A[uthority]-style mass transit would lead to an increase in crime and the construction of low-income housing in Cobb County[.]’” (citation omitted)). Henderson’s research on transit in Atlanta involved interviews with elected officials and planners; he noted that “[m]ost interviewees for this research acknowledged that white racism complicated decision-making about transit. Suburban elected officials acknowledged that a substantial portion of their constituents held racist views. One county official mentioned that at public meetings in her Atlanta suburb, residents loudly protested against the MARTA bus service because blacks would steal TVs[.]”
Id.
at 300 (citation omitted).
125
Id
126
Ross & Leigh,
supra
note 45, at 377.
127
Strahilevitz,
supra
note 59, at 488 n.163 (“Some white suburbs of San Francisco opted out of the Bay Area Rapid Transit system, fearing it might encourage African Americans to move in.”).
128
Id.
at 487-88.
129
Id.
(“[I]n the process of planning the Washington, D.C., subway, citizens in various relatively affluent areas opposed the establishment of subway stations because of concerns that inner city denizens would ride the subways into their neighborhoods. Affluent neighborhoods in other parts of the country have done likewise, foregoing otherwise desirable investments in valuable amenities like well-maintained public roads, parks, and even street signs because of fears that such amenities would attract undesirables.”).
130
See generally
Fischel
supra
note 37.
131
See, e.g.
, Henderson,
supra
note 6, at 300 (“A couple in the exurban sprawl north of Atlanta stated that they moved to the county because they felt mass transit would never come there, and that ‘transit makes areas accessible for lower-income families that could otherwise not come out here because they don’t have transportation and that’s good[.]’” (citation omitted)).
132
Austin,
supra
note 118, at 682.
133
Dr. Martin Luther King recognized this fact when he stated, “Urban transit systems in most American cities . . . have become a genuine civil rights issue—and a valid one—because the layout of rapid-transit systems determines the accessibility of jobs to the black community. If transportation systems in American cities could be laid out so as to provide an opportunity for poor people to get meaningful employment, then they could begin to move into the mainstream of American life.” Martin Luther King, Jr.,
A Testament of Hope
Playboy
, Jan. 1969,
reprinted in
A Testament of Hope: The Essential Writings and Speeches of Martin Luther King, Jr
. 313, 325 (James Melvin Washington ed., 1991).
134
See, e.g.
, Ross & Leigh,
supra
note 45, at 376-77;
see also
Michael J. Austin et al., Serving Low-Income Families in Poverty Neighborhoods Using Promising Programs and Practices: Building a Foundation for Redesigning Public and Nonprofit Social Services
106-07 (2004),
[http://perma.cc/WDK2-3SB8?type=live] (“Many low-income parents must rely on public transportation to get to their jobs. As more and more employment opportunities move to suburban areas, while low-income workers remain in urban areas, the use of public transportation becomes more problematic.”).
135
Ross & Leigh,
supra
note 45, at 376-77 (noting that seventy-six percent of inner-city residents were black while ninety-one percent of suburban residents were white).
136
Id.
at 377.
137
See
Henderson,
supra
note 6, at 299 (discussing Atlanta, and noting that whites rejecting MARTA and relying on automobiles “enabled physical secession to outer suburban areas while simultaneously providing a means of travel through spaces inhabited by blacks, all without having to interact with blacks”). Policymakers in particular should be cognizant of the constitutional implications of their discriminatory behavior
Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (“Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect. ‘Public officials sworn to uphold the Constitution may not avoid a constitutional duty by bowing to the hypothetical effects of private racial prejudice that they assume to be both widely and deeply held.’” (quoting Palmer v. Thompson, 403 U.S. 217, 260-61 (1971) (White, J., dissenting))).
138
Keith R. Ihlanfeldt & David L. Sjoquist,
The Spatial Mismatch Hypothesis: A Review of Recent Studies and Their Implications for Welfare Reform
, 9
Housing Pol’y Debate
849, 881 (1998).
139
See
Tomer et al
supra
note 121, at 19 (“Residents of low-income suburban neighborhoods can reach just over one-in-five middle- or low-skill industry jobs in their metropolitan areas[,] . . . the types of jobs for which they may be most likely to qualify.”).
140
It is not only the placement and location of individual transit stops that results in an exclusionary environment, but also the larger structure of the transit system.
See, e.g.
, Shoaib M. Chowdhury & Steven I-Jy Chien,
Intermodal Transit System Coordination
, 25
Transport. Plan. & Tech
. 257 (2002) (describing intermodal transportation networks).
141
David W. Chen,
Suit Accusing Shopping Mall of Racism over Bus Policy Settled
N.Y. Times
, Nov. 18, 1999,
[http://perma.cc/7LWX-5CV8].
142
Id.
143
Id.
; Kevin Collison,
Wiggins Suit Settled - Son To Get $2.55 Million
Buff. News
, Nov. 17, 1999,
[http://perma.cc/7S8T-HYKW] (“The first [witness] was to be Kenneth D. Cannon, the official for Galleria owner Pyramid Cos. who was the alleged architect of the mall’s policy banning the Route 6 bus.”).
144
Lynne Duke,
Buffalo Family Seeking Millions For Fatal Lack of a Bus Stop
Wash. Post
, Nov. 15, 1999,
[http://perma.cc/8J3F-YR7H].
145
Id
.;
see also
Chen,
supra
note 141 (“[O]fficials from the Transportation Authority revealed that they had, over several years, repeatedly asked the mall to allow the bus onto the premises, but that the mall had always refused, fearful of rambunctious youths.”); Collison
supra
note 143
146
Chen,
supra
note 141.
147
Id
148
Steven Paul McSloy,
Closing Remarks: Breaking the Power of the Power Brokers
, 9
St. John’s J. Legal Comment. 669
, 671 (1994).
149
Id.
at 671 n.17;
see also Graft
Merriam-Webster (2015),
[http://perma.cc/R2XV-L362] (defining graft as “the acquisition of gain (as money) in dishonest or questionable ways”).
150
Caro
supra
note 1, at 390 (“Placing the Manhattan terminus at 125th Street condemned most motorists . . to thus add two and a half totally unnecessary miles to their every journey over the bridge.”).
151
Id
at 301-02; McSloy,
supra
note 148, at 672 n.18.
152
See, e.g.
William H. Ittelson et al., An Introduction to Environmental Psychology
348 (1974) (noting that “the construction of major highways through central cities . . . fracture[s] and fragment[s] delicate social networks”); Wesley Skogan,
Fear of Crime and Neighborhood Change
, 8
Crime & Justice
203, 206 (1986) (“[F]reeway networks driven through the hearts of many American cities . . . destroyed . . . low-income, minority neighborhoods . . . .”).
153
Raymond A. Mohl
The Interstates and the Cities: Highways, Housing, and the Freeway Revolt
, Poverty & Race Res. Action Council
1 (2002),
[perma.cc/ZWU6-KH6A] (“In retrospect, [this motivation] now seems apparent . . . .”).
154
Id.
at 1-2.
155
See, e.g.
Gerhard Falk, Twelve Inventions Which Changed America: The Influence of Technology on American Culture
26 (2013) (“Racism was also invoked, as more and more interstate and other roads were built, some of which cut through black neighborhoods. These roads did indeed displace many established communities, as critics complained of ‘White roads through black bedrooms.’”); B. Drummond Ayres, Jr.,
‘White Roads Through Black Bedrooms’
N.Y. Times
, Dec. 31, 1967, at E7 (discussing a group called N[******] Incorporated that was resisting the construction of highways through black neighborhoods in Washington D.C.).
156
See generally
Thomas J. Sugrue, The Origins of the Urban Crisis: Race and Inequality in Postwar Detroit
(1996) (describing the extensive urban renewal efforts in Detroit and the resulting segregation of the region).
157
Lafayette Park
Mies van der Rohe Soc’y
[http://perma.cc/UST6-HQEG];
see also
Ben Cosgrove,
Mies van der Rohe: Architect of the Modern World
LIFE.com
[http://perma.cc/V38W-72LS] (describing van der Rohe, a well-known modernist architect, as the “German master” “whose work so defined his time that it’s impossible to imagine certain decades and cityscapes without his influence”).
158
John Gallagher, Op-Ed,
When Detroit Paved over Paradise: The Story of I-375
Det. Free Press
, Dec. 15, 2013,
[http://perma.cc/LJ8Z-4RWL] (“Named for the rich dark soil that French explorers first found there, the Black Bottom district in the 1940s and ‘50s housed the city’s African-American entrepreneurial class, with dozens of thriving black-owned businesses and the Paradise Valley entertainment zone, where Duke Ellington, Ella Fitzgerald and Count Basie performed.”);
see also
Mohl,
supra
note 153, at 4 (“The consequence of state and local route selection was that urban expressways could be used specifically to carry out local race, housing, and residential segregation agendas.”).
159
Carrie Da Via,
A Brief History of Detroit’s Black Bottom Neighborhood
Rogue HAA
, May 18, 2012,
[http://perma.cc/VFC2-9VU8] (“Like other urban renewal projects, significant areas of the former Black Bottom neighborhood remained vacant for over half of a decade.”).
160
John Gallagher,
No More I-375? Detroit To Study Removing Freeway in Favor of Walkable Surface Street
Det. Free Press
, Nov. 24, 2013,
[http://perma.cc/H3DA-3B5K] (“Removing the 1960s-era freeway could sprout residential communities anew in the once-thriving historic black areas known as Black Bottom and Paradise Valley that were torn apart five decades ago by local freeway construction, the same as in cities across the nation.”).
161
Mohl,
supra
note 153, at 30.
162
Id
163
Id.
at 32.
164
Goebel,
supra
note 89 (noting that traversing Highway 101 to get to the east side is dangerous and involves passing through a busy intersection);
see also
George Packer,
Change the World
New Yorker
, May 27, 2013,
[http://perma.cc/9W42-2R5N] (“[P]ublic schools in poor communities—such as East Palo Alto, which is mostly cut off from the city by Highway 101—have fallen into disrepair and lack basic supplies.”).
165
Conversation with David Levy, Attorney, Baird Holm LLP, in Omaha, Neb. (Aug. 2013) (explaining that in the 1960s and 1970s, fairly transparent measures were taken to “wall off” the black community in North Omaha from the rest of the city; Sixteenth Street was a main thoroughfare connecting North Omaha to downtown, until the City allowed construction of a large hotel running from 15th Street to 17th Street that closed 16th Street at the (then) north edge of downtown; another such thoroughfare was 24th Street, until it was turned into a one-way street just north of downtown; further, a freeway was constructed that effectively bisected, and many say killed, the black community at the time). For a contemporary description of Omaha’s black neighborhoods, see
Elia Peattie
Omaha’s Black Population: The Negroes of This City – Who They Are and Where They Live
in
Impertinences: Selected Writings of Elia Peattie, a Journalist in the Gilded Age 58
(2005).
166
See
Douglas Massey & Nancy Denton, American Apartheid (1998);
see generally
Fed. Highway Admin. Envtl. Justice Case Studies,
Cyprus Freeway Replacement Project
U.S. Dep’t Transp. (A
ug. 29, 2011)
[http://perma.cc/9C4J-5QZV] (noting that the decision to reconstruct a portion of I-880 in a new location after the Loma Prieta earthquake was due, in part, to considerations of the way that the highway had previously divided and isolated black communities).
167
George Rengert & John Wasilchick, Suburban Burglary: A Time and a Place for Everything
62 (1985) (noting that a Delaware turnpike cuts a community in half)
168
See
Triangle Improvement Council v. Ritchie, 402 U.S. 497, 497 (1971) (writ of certiorari dismissed as improvidently granted). Interstate highways cut through Charleston, West Virginia’s primarily poor, black Triangle neighborhood despite lawsuits attempting to stop them. Plaintiffs raised claims under the Civil Rights Act and the Fourteenth Amendment.
See
Triangle Improvement Council v. Ritchie, 314 F. Supp. 20, 22-26 (S.D. W. Va. 1969).
169
See infra
Part IV.A.
170
See
Berman v. Parker, 348 U.S. 26, 33 (1954) (holding that it is within legislative power “to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled”).
171
Id.
at 33-34 (allowing exercise of eminent domain to eliminate blight in an area even though the property at issue was not blighted).
172
See
Kelo v. City of New London, 545 U.S. 469, 483 (2005) (holding that the taking of private property for “economic development” was a valid use of eminent domain power even though New London was “not confronted with the need to remove blight [as in
Berman
, because] . . . the area was sufficiently distressed to justify a program of economic rejuvenation”);
see, e.g.
Me. Rev. Stat. Ann
. tit. 30-A, § 5202 (2011) (defining blight);
Me. Rev. Stat. Ann
. tit. 1, § 816(2) (2006) (generally prohibiting the condemnation of land that has residential houses or commercial structures thereon, unless there has been a finding of blight and the area is covered by a redevelopment or urban renewal plan);
N.Y. Gen. Mun. Law
§ 970-b (McKinney 2012) (declaring it to be the policy of the state to promote redevelopment of blighted areas, including through the use of eminent domain);
Ohio Rev. Code Ann.
§ 163.021 (West 2007) (allowing, under certain conditions, for an agency to appropriate property it has found in a blighted area or slum)
; see also
Will Lovell, Note,
The
Kelo
Blowback: How the Newly-Enacted Eminent Domain Statutes and Past Blight Statutes Are a Maginot Line-Defense Mechanism for all Non-Affluent and Minority Property Owners
, 68
Ohio St. L.J.
609, 612 (2007) (“Because governments have retained their blight-designation powers, they may still specifically do what the recently enacted state statutes tried to prevent—take the homes of low-income households and replace them with private developments. This result has unjustly and disparately affected blacks over whites, the poor over the rich, and those with little political representation over those that are politically-connected.”).
173
See
G. Wade Walker et al.,
Downtown Streets: Are We Strangling Ourselves on One-Way Networks?
Transp. Res. Bd. Circular
F-2, at 4 (Dec. 2000),
[http://perma.cc/C6T7-Y9WW] (discussing the experience of the “occasional visitor” motorist in a one-way street network);
Episode 51: The Arsenal of Exclusion
supra
note 88.
174
See, e.g
., Nathaniel Hoffman,
One Way, Two Way, Yes Way, No Way
Boise Wkly.,
July 31, 2009,
[http://perma.cc/DVK8-7QMQ] (explaining benefits of one-way streets, including that “[p]edestrian safety is improved as the pedestrian has fewer directions to be concerned about at intersections. Drivers have fewer potential conflicts to handle as well so can give more attention to pedestrian safety.”). However, there is countervailing data suggesting that two-way streets result in slower traffic, which can result in a safer environment for pedestrians.
See, e.g.
, Eric Jaffe,
The Case Against One-Way Streets
Atlantic: Citylab
(Jan. 31, 2013),
[http://perma.cc/2ZGG-TW7W] (“[S]peeds tend to be higher on one-way streets, and some studies suggest drivers pay less attention on them because there’s no conflicting traffic flow.”).
175
See Episode 51: The Arsenal of Exclusion
supra
note 88 (visiting an affluent, predominantly white neighborhood in East Baltimore that uses one-way streets, dead ends, and bollards to inhibit the influx of traffic from the adjacent lower-income, predominantly black neighborhood).
176
Id.
177
Id.
178
Id.
see also
Mark Mikin,
The United States of 2012
Esquire (2015)
[http://perma.cc/DR6K-UHH9] (“[O]f the eight streets that intersect Greenmount Avenue between 33rd Street and Cold Spring Lane, only one (39th Street) allows travel from east to west. Six of the streets are one-way pointing east (i.e., out of the wealthy, white side), and one of the streets (34th Street) thwarts westward movement with bollards.”).
179
Vikash V. Gayah,
Two-Way Street Networks: More Efficient than Previously Thought?
, 41
Access
Mag.
10, 11 (2012),
[http://perma.cc/D6S9-TDFP] (“Downtown visitors, whether they arrive by car or public transportation, prefer two-way street networks to one-way street networks because they are less confusing. Visitors driving in a two-way grid network can easily approach their destination from any direction. A one-way network may prevent drivers from approaching their destination from the most logical direction. This uncertainty can intimidate drivers and, in some cases, make them hesitant to return.”).
180
See, e.g.
Allan R. Talbot, The Mayor’s Game: Richard Lee of New Haven and the Politics of Change
112 (1967); Bill Landauer,
Easton Could Open Traffic on Fourth Street to Two Ways
Morning Call
(Pa.)
, Dec. 14, 2014,
[http://perma.cc/Z7MP-DLXS] (noting that a city street became one-way during urban renewal to “move traffic through the city more quickly”).
181
Notably, these recent conversions often require city council approval, which means there is an opportunity for public participation in the process.
See, e.g.
, E-mail from Judy Crites, Office Manager, City of Charleston, to Patrick Lyons, Research Assistant, Univ. of Me. Sch. of Law (Apr. 11, 2014, 10:31:00 EST) (on file with author) (describing the process of converting one-way to two-way streets and stating, “First an internal review would be done and if feasible an outside engineering consultant would be hired to perform a comprehensive traffic study. Results would be reviewed by staff and presented to the City Council Traffic and Transportation Committee at which time a public hearing on the matter would be scheduled. After the public hearing the Traffic and Transportation Committee would vote on the matter. If approved by the Traffic and Transportation Committee, it would then move forward to City Council for consideration.”).
182
According to the 2000 Census, Darien was 95.97% white, 0.04% black, and 2.19% Hispanic. Darien was also listed ninth in CNN’s list of “top-earning towns.” John Nickerson,
Occupy Darien Set To Begin Wednesday
Darien News
(Conn.)
, Dec. 21, 2011,
[http://perma.cc/TTZ5-ZK4L] (noting the economic status of Darien and its neighboring town);
Demographics
Town Darien,
[http://perma.cc/8XNS-VCN9].
183
Loewen
supra
note 87, at 254-55
184
Mark A. Stein,
Road Signs? Bolinas Voters Say ‘Read Our Lips’ Instead
L.A. Times
, Nov. 9, 1989,
[http://perma.cc/7VX7-BV84]. This appears to have been unsuccessful, as many wealthy individuals, including some celebrities, now own homes in Bolinas.
See
Aaron Britt,
Going Coastal: Is the Elusive Bohemian Enclave of Bolinas Getting a Bit Glossier?
S.F. Chron.,
Jan. 28, 2007,
[http://perma.cc/XHK7-4V37](explaining that Bolinas has seen an influx of wealthy new homeowners, including actress Frances McDormand and her filmmaker husband, Joel Coen).
185
Stein,
supra
note 184.
186
Id
187
See, e.g.
, Clay Risen,
The Cul-de-Sac Ban
N.Y. Times Mag.
, Dec. 13, 2009,
[http://perma.cc/B62T-A8MT].
188
See, e.g.
Fullerton, Cal., Mun. Code
§ 8.44.230(A) (“[I]t shall be unlawful for any person to stand or park any vehicle on any street or portion thereof so restricted by resolution of the City Council to permit parking only during all or certain portions of the day provided signs giving notice of said restriction have been posted, unless a parking permit issued by the City is displayed on the vehicle . . . .”);
Resident Parking Program
City Bos.
[http://perma.cc/9WPH-STQ7] (“Boston’s Resident Permit Parking Program is an initiative designed to give residents a better chance of finding an on-street parking space in their neighborhood. Many of the parking spaces on Boston’s residential streets are regulated as ‘Resident Parking Only.’”).
189
For example, in Portland, Maine, the city traffic engineer has the authority to establish parking regulations without requiring city council approval and thus, ostensibly, without formal public input.
Portland, Me., Code
§ 28-24(g)(1) (2013);
infra
note 302.
190
434 U.S. 5 (1977) (per curiam).
191
Id.
at 5-6.
192
Id.
at 6.
193
Id
. at 7 (“A community may also decide that restrictions on the flow of outside traffic into particular residential areas would enhance the quality of life there by reducing noise, traffic hazards, and litter.”).
194
Austin,
supra
note 118, at 673.
But see
Leydon v. Town of Greenwich, 777 A.2d 552 (Conn. 2001) (allowing non-resident access to a municipal beach, finding it to be a traditional public forum); Austin,
supra
note 118, at 674 (“City of Dearborn[, Michigan,] had gone too far when it restricted access to two parks to residents and their guests . . . . Because of its disparate impact on blacks, the residency restriction was held to violate the provision of the Michigan Constitution prohibiting racial discrimination against individuals exercising their civil rights . . . [and the] proof of residency [requirement] violated the prohibition against unreasonable searches and seizures.”).
195
See, e.g.
A. Leon Higginbotham, Jr., Shades of Freedom: Racial Politics and Presumptions of the American Legal Process
(1996); Richard Thompson Ford,
The Boundaries of Race: Political Geography in Legal Analysi
s, 107
Harv. L. Rev.
1841 (1994) (discussing the role of local governments in promoting racially identifiable space); Jerry Frug, Symposium,
The Geography of Community
, 48
Stan. L. Rev
. 1047, 1081-89 (1996) (describing the use of zoning and redevelopment power by municipalities to isolate communities along lines of race or socioeconomic status); Lawrence,
supra
note 14 (reconsidering the doctrine of discriminatory intent established by the 1976 decision of
Washington v. Davis
); Daniel R. Mandelker,
Racial Discrimination and Exclusionary Zoning: A Perspective on
Arlington Heights, 55
Tex. L. Rev.
1217 (1977) (examining the impact of the Fourteenth Amendment on racial exclusionary zoning and calling for legislative action).
196
Richard R W. Brooks & Carol M. Rose, Saving the Neighborhood: Racially Restrictive Covenants, Law, and Social Norms 19
(2013).
197
J. Peter Byrne,
Are Suburbs Unconstitutional?
, 85
Geo. L.J.
2265, 2286 (1997) (reviewing
Charles M. Haar, Suburbs Under Siege: Race, Space, and Audacious Judges
(1996) and
David L. Kirp, John P. Dwyer & Larry A. Rosenthal
Our Town: Race, Housing, and The Soul of Suburbia
(1995)) (discussing the role of the courts in addressing “the persistent use of the law by the affluent to exclude the poor and minorities from their communities”).
198
Ellickson et al
supra
note 70, at 725-810. Another comparison that could be made is that of physical segregation of the races in contexts other than housing under the Jim Crow laws in the early 1900s.
See generally
Brooks & Rose
supra
note 196, at 26 (describing separation in public and commercial common spaces, including public transportation); Robert R. Weyeneth,
The Architecture of Racial Segregation: The Challenges of Preserving the Problematical Past
, 27
Pub. Historian
, 11, 13 (2005) (examining the spatial system of racial segregation in the U.S. and stating that “[t]he architecture of racial segregation represented an effort to design places that shaped the behavior of individuals and, thereby, managed contact between whites and blacks”). The Supreme Court upheld the validity of “equal but separate” public transportation facilities in
Plessy v. Ferguson
in 1896, after which time Southern states expanded segregation in a variety of public spaces. Plessy v. Ferguson, 163 U.S. 537 (1896);
Brooks & Rose
supra
note 196, at 27. This resulted in the use of architecture to separate the races in two ways: “
isolation
and
partitioning
.” Weyeneth,
supra
, at 12.
199
Ross & Leigh,
supra
note 45, at 372 (describing the use of racial zoning to “exclude undesirable groups from entering” upscale communities).
See generally
Garrett Power,
Apartheid Baltimore Style: The Residential Segregation Ordinances of 1910-1913
, 42
Md. L. Rev
. 289 (1983).
200
David E. Bernstein,
Philip Sober Controlling Philip Drunk:
Buchanan v. Warley
in Historical Perspective
, 51
Vand. L. Rev
. 797, 835 (1998); Power,
supra
note 199 at 298-300. An even earlier example came from San Francisco.
See In re
Lee Sing, 43 F. 359, 359 (C.C.N.D. Cal. 1890) (describing San Francisco’s earlier ordinance that confined Chinese people to a certain part of the city).
201
Christopher Silver & John V Moeser, The Separate City: Black Communities in the Urban South, 1940-1968,
at 21 (1995).
202
Id
. The Georgia Supreme Court originally deemed the ordinance—which applied retroactively—violative of due process for infringing on the right of an individual to “acquire, enjoy, and dispose of his property.” Carey v. City of Atlanta, 84 S.E. 456, 460 (Ga. 1915);
see also
State v. Darnell, 81 S.E. 338, 340 (N.C. 1914) (striking down Winston-Salem’s racial zoning ordinance because it interfered with “the fundamental right of every one to acquire and dispose of property by sale”).
But see
Hopkins v. City of Richmond, 86 S.E. 139, 148 (Va. 1915) (upholding Richmond’s racial zoning ordinance and holding that “the town council . . . had full authority . . . to pass an ordinance providing for separate residences for white and colored people within its limits, that the ordinance passed was a reasonable exercise of this power, and that it does not conflict with the fourteenth amendment”). Yet once Atlanta’s ordinance was amended to “exclude[] from its operation vested rights existing at the time of its adoption,” that court upheld its constitutionality. Harden v. City of Atlanta, 93 S.E. 401, 402-03 (Ga. 1917),
overruled by
Lee v. Warnock, 96 S.E. 385 (Ga. 1918) (“Segregation is not imposed as a stigma upon either race, but in order to uphold the integrity of each race and to prevent conflicts between them resulting from close association. An ordinance designed to accomplish this purpose will be upheld, notwithstanding that to some extent the use of property may be somewhat restricted . . . .”).
203
Hopkins
, 86 S.E. at 144
; see also
Buchanan v. Warley, 245 U.S. 60, 73-74 (1917) (“It is said such legislation tends to promote the public peace by preventing racial conflicts; that it tends to maintain racial purity; that it prevents the deterioration of property owned and occupied by white people . . . .”).
204
Christopher Silver,
The Racial Origins of Zoning in American Cities
in
Urban Planning and the African American Community: In the Shadows 23, 27
(June Manning Thomas & Marsha Ritzdorf eds., 1997) (quoting Baltimore Mayor J. Barry Mahool).
205
David Pilgrim,
What Was Jim Crow?
Ferris State U. Jim Crow Museum Racist Memorabilia (
Sept. 2000)
[http://perma.cc/T4JR-Y57J].
206
245 U.S. at 82 (holding that the “attempt to prevent the alienation of the property in question to a person of color was not a legitimate exercise of the police power of the State” and thus violated the Due Process Clause of the Fourteenth Amendment).
207
See id.
(“We think this attempt to prevent the alienation of the property in question to a person of color was not a legitimate exercise of the police power of the state, and is in direct violation of the fundamental law enacted in the Fourteenth Amendment of the Constitution preventing state interference with property rights except by due process of law.”).
208
See
Joel Kosman,
Toward an Inclusionary Jurisprudence: A Reconceptualization of Zoning,
43
Cath. U. L. Rev.
59, 76 (1993) (“The Court’s finding disregarded the more pernicious effect of the ordinance—the exclusion of an unempowered group, not merely from buying or selling property, but from the opportunity to ascend to social and economic levels already claimed by the empowered group.”).
209
Silver & Moeser
supra
note 201, at 21-22;
see also
Boddie,
supra
note 57, at 428 n161 (recognizing that racial zoning “continued with some force for decades thereafter”). For example, Robert Whitten, who drafted many early zoning ordinances and comprehensive plans, proposed a post-
Buchanan
plan, cast in the language and context of comprehensive planning, that zoned Atlanta so as to expressly separate residential districts by race.
See
LeeAnn Lands,
The Culture of Property: Race, Class, and Housing Landscapes in Atlanta
, 1880-1950, at 143 (2011) (describing Whitten’s work with zoning codes in New York and Cleveland).
210
See, e.g.
, Harmon v. Tyler, 273 U.S. 668, 668 (1927) (invalidating a New Orleans, Louisiana ordinance),
rev’g
Tyler v. Harmon, 104 So. 200 (La. 1927); City of Richmond v. Deans, 37 F.2d 712, 713 (4th Cir. 1930) (invalidating a Richmond, Virginia ordinance),
aff’d
, 281 U.S. 704 (1930); Allen v. Oklahoma City, 52 P.2d 1054 (Okla. 1935) (invalidating an Oklahoma City ordinance); Smith v. City of Atlanta, 132 S.E. 66 (Ga. 1926);
see also
Ellickson et al.
supra
note 70, at 93 (discussing a racial zoning ordinance in Ohio that was struck down);
Silver & Moeser
supra
note 201, at 22 (“It was a widely held tenet of planning in the 1920s that controlled growth of black neighborhoods was necessary to produce a socially better city. Even though the explicit racial designations in the city’s zoning plan had to be removed, the ‘controlled segregation’ objective of race-based planning guided public policy and private real estate decisions in Atlanta over the ensuing decades.”); Bruno Lasker,
The Atlanta Zoning Plan
, 48 Survey
114, 114-115 (Apr. 22, 1922).
211
Silver & Moeser
supra
note 201, at 22 (“Even without the powerful legal tool of zoning, white and black Atlantans proved adept at guiding the process of black residential growth in conformity with the prescription in the 1922 plan through the use of deed restrictions and an assortment of racially sensitive real estate practices”);
see also
E. Bernard West, Black Atlanta—Struggle for Development: 1915-1925, at 25-48 (May 1976) (unpublished M.A. thesis, Atlanta University),
[http://perma.cc/W2EH-GRF6] (examining the numerous obstacles blocking black Atlanta’s development).
212
Kevin Fox Gotham,
Urban Space, Restrictive Covenants and the Origins of Racial Segregation in a US City, 1900-50
, 24
Int’l J. Urb. & Regional Res.
616 (2000) (
using a case study of Kansas City, Missouri, to examine efforts undertaken by community builders and homeowner associations who used racially restrictive covenants to create racially homogeneous neighborhoods).
213
See, e.g.
Brooks & Rose
supra
note 196, at 55;
see also
Shelley Ross Saxer, Shelley v. Kraemer
’s Fiftieth Anniversary: “A Time for Keeping; A Time for Throwing Away”?
, 47
U. Kan. L. Rev.
61 (1998) (arguing for alternatives to fighting private racial discrimination beyond state action theory).
214
Gotham,
supra
note 212
, at 617.
215
271 U.S. 323 (1926).
216
Id.
at 330-31. In discussing strategy before the appeal to the Supreme Court, some urged the NAACP to argue that court enforcement of the covenants was effectively state action and thus unconstitutional (the argument that would, twenty years later, win over the court).
See
Stephen Grant Meyer, As Long as They Don’t Move Next Door: Segregation and Racial Conflict in American Neighborhoods 46
(2001) (describing the strategy suggested by NAACP lawyer Louis Marshall). However, the NAACP instead focused on an argument that the covenants constituted a violation of the Civil Rights Act of 1866 and resulted in disease, crime, and overcrowding.
Id.
at 46;
cf.
Brooks & Rose
supra
note 196, at 55 (asserting that the NAACP continuously used the state action line of argument in all cases up to and including
Shelley v. Kramer
).
See generally
Clement E. Vose, Caucasians Only: The Supreme Court, the NAACP, and the Restrictive Covenant Cases
(1959).
217
Brooks & Rose
supra
note 196, at 211 (discussing the “respectable legal form” of racially restrictive covenants)
218
Id.
at 212.
219
One author cites a string of twelve law review articles, three student notes, and one book that were written in the aftermath of the
Corrigan
case questioning its holding.
See
Vose,
supra
note 216, at 275 n.45.
220
Brooks & Rose
supra
note 196, at 55-56 (discussing concerns of real estate developers and their attorneys)
221
Id.
at 56;
see also
Kemp v. Rubin, 69 N.Y.S.2d 680, 685 (Sup. Ct. 1947) (“Such a covenant has been held not to be an unlawful restraint upon alienation.”).
But see
L.A. Inv. Co. v. Gary, 186 P. 596, 597 (Cal. 1919).
222
334 U.S. 1 (1948).
223
Shelley
, 334 U.S. at 20.
224
For example, the federal Fair Housing Act of 1968 prohibits discrimination on the basis of race (as well as religion, gender, national origin, and, now, disability) with respect to sale and rental of most property, and prohibits the creation of racial covenants. 42 U.S.C. § 3604 (2012).
225
Brooks & Rose
supra
note 196, at 228 (describing California and Missouri laws);
Cal Civ. Code
§§ 12955(l), 6606 (West 2014);
Mo. Rev. Stat
. § 213.041 (2014).
226
The idea behind large-lot zoning is that poor people will not be able to afford to build or buy a house on such a large lot. Occupancy restrictions might limit the number of bedrooms permitted in a structure, which effectively keeps out larger families.
See
Lawrence Gene Sager,
Tight Little Islands: Exclusionary Zoning, Equal Protection, and the Indigent
, 21
Stan. L. Rev
. 767, 767 (1969) (describing exclusionary zoning as “zoning that raises the price of residential access to a particular area, and thereby denies that access to members of low-income groups”); Byrne,
supra
note 197, at 2265 n.2 (“‘Exclusionary zoning’ generally refers to zoning laws that aim for a social effect.”).
227
Using the ideas concerning “intersectionality” as a basis, this Article considers the impact that exclusion has on both socioeconomically disadvantaged individuals and people of color.
See generally
Leslie McCall,
The Complexity of Intersectionality
, 30
Signs
1771, 1782 (2005) (“Although broad racial, national, class, and gender structures of inequality have an impact and must be discussed, they do not determine the complex texture of day-to-day life for individual members of the social group under study, no matter how detailed the level of disaggregation.”). Of course, courts apply different levels of scrutiny to race and class, but they cannot be separated in this discussion, as “economic segregation is not only the easiest but also the most effective form of racial and ethnic segregation.” Williams,
supra
note 17, at 330;
see also
Wayne Batchis,
Suburbanization and Constitutional Interpretation: Exclusionary Zoning and the Supreme Court Legacy of Enabling Sprawl
8 Stan. J. C.R. & C.L.
1, 37 (2012) (“Wealth and race share an unfortunate correlation in America; and while the relationship is not as strong as it once was, minorities in America are still saddled with a disproportionate share of poverty and economic despair.”); Byrne,
supra
note 197, at 2277 (“Although it is sometimes asserted that exclusionary practices result merely from the pursuit of economic self-interest by suburban residents, the history of suburban expansion makes the conclusion that it is also driven by a desire for racial isolation inescapable.”).
228
Ross & Leigh,
supra
note 45, at 373 (describing these types of zoning ordinances that have exclusionary effects).
229
Byrne,
supra
note 197
, at 2277.
230
Suburbanites “fear that when poor people move next door crime, drugs, blight, bad public schools and higher taxes inevitably follow. They worry that the value of their homes will fall and the image of their town will suffer. It does not help that the poor are disproportionately black and Latino.” David L. Kirp, Op-Ed
Here Comes the Neighborhood
N.Y. Times
, Oct. 19, 2013,
[http://perma.cc/A82U-3AAS]. Regardless of the motivation, the results are still exclusionary.
231
Strahilevitz,
supra
note 59, at 465-66 (describing exclusionary zoning as “well documented and widely practiced”).
232
City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 192 (2003).
233
See, e.g.
, Batchis,
supra
note 227
(discussing the relationship between exclusionary zoning and urban sprawl);
Byrne,
supra
note 197
(examining exclusionary zoning in the context of the
Mount Laurel
decisions); Sager,
supra
note 226
(examining the application of the Equal Protection Clause to exclusionary zoning);
see also
Ross & Leigh,
supra
note
45
at 372-73 (discussing exclusionary zoning’s role in racial segregation).
234
See
Gary S. Becker & Kevin M. Murphy, Social Economics: Market Behavior in a Social Environment
72 (2000) (“Such hidden discrimination is hard to detect.”).
235
But see
Ellickson et al.
supra
note 70, at 741 (“In the early 1970s, several federal courts applied the Equal Protection Clause to exclusionary zoning practices that stopped short of drawing explicitly racial classifications. . . . Soon thereafter, however, the Equal Protection Clause ceased to be a viable weapon against exclusionary, but not explicitly racial, land use controls.” (internal citations omitted)). Exclusionary zoning has been found to violate some state constitutions, and some states have attempted to curb it through legislation.
See, e.g.
Cal. Gov’t Code
§§ 65300, 65302 (West 2014) (requiring a housing element as part of comprehensive planning);
Or. Rev. Stat.
§ 197.312 (2013) (preventing local governments from disallowing in residential zones “attached or detached single-family housing, multifamily housing for both owner and renter occupancy or manufactured homes”); S. Burlington Cnty. NAACP v. Township of Mount Laurel, 336 A.2d 713 (N.J. 1975),
appeal dismissed & cert. denied
, 423 U.S. 808 (1975); Harold A. McDougall,
From Litigation to Legislation in Exclusionary Zoning Law
, 22
Harv. C.R.-C.L. L. Rev
. 623 (1987). However, it is still quite common in much of the country. Rolf Pendall,
Local Land Use Regulation and the Chain of Exclusion
, 66
J. Am. Plan. Ass’n
125 (2000) (determining that low-density, exclusionary zoning resulted in fewer rental housing units, and thus fewer residents of color); Jonathan Rothwell & Douglas S. Massey,
The Effect of Density Zoning on Racial Segregation in U.S. Urban Areas
, 44
Urb. Aff. Rev.
779 (2009) (finding a significant relationship between low-density zoning and racial segregation).
236
See
McDougall,
supra
note 235, at 623-24 (“The entry barriers to federal litigation on exclusionary zoning matters, as established by the United States Supreme Court, are quite high . . . .”). While racial animus might be behind many exclusionary zoning decisions, most elected officials know not to mention it in the context of a public meeting or to use it as a justification for the decision.
See, e.g.,
Byrne,
supra
note 197, at 2277;
see also
Yick Wo v. Hopkins, 118 U.S. 356 (1886) (suggesting that it is not difficult for governments to shield bad motivations behind legitimate reasons). Thus, although race is a suspect classification, it is typically difficult to establish that an exclusionary decision was race-based.
237
Lindsey v. Normet, 405 U.S. 56, 74 (1972).
238
San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 17-18 (1973).
239
Village of Belle Terre v. Boraas, 416 U.S. 1 (1974);
see also
Associated Home Builders, Inc. v. City of Livermore, 557 P.2d 473 (Cal. 1976) (discussing an exclusionary zoning ordinance and stating that “[b]oth the United States Supreme Court and this court have refused to apply the strict constitutional test to legislation, such as the present ordinance, which does not penalize travel and resettlement but merely makes it more difficult for the outsider to establish his residence in the place of his choosing”).
But see
City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 450 (1985) (applying rational basis review and striking down a zoning ordinance that prohibited group homes for mentally disabled individuals as violative of the Equal Protection Clause because the ordinance was based on “irrational prejudice” against the mentally retarded); Richard Fielding,
The Right to Travel: Another Constitutional Standard for Local Land Use Regulation?
, 39 U.
Chi. L. Rev.
612 (1972) (suggesting that exclusionary zoning violated the freedom of travel of prospective residents).
240
Sager,
supra
note 226, at 782.
241
Id
. at 767 (writing in 1969, and noting that, at that time, exclusionary zoning was “a problem that has thus far been ignored by the Supreme Court”). The Court finally spoke to the issue, at least generally, in 1977 in
Village of Arlington Heights v. Metropolitan Housing Development Corp.
, 429 U.S. 252 (1977).
242
429 U.S. 252 (1977).
243
Id
. at 265;
see also
Ellickson et al.
supra
note 70, at 763.
244
426 U.S. 229, 239 (1976) (holding that even if a “law or other official act” has a racially discriminatory effect, the plaintiff must also show that there was a discriminatory intent in order to prevail in an equal protection case).
245
See, e.g
., Theodore Eisenberg & Sheri Lynn Johnson,
The Effects of Intent: Do We Know How Legal Standards Work?
, 76
Cornell L. Rev.
1151, 1152 (1991) (finding that intent cases are rarely litigated, and stating, “[t]he Court in
Davis
disparaged the importance of demonstrated, racially disproportionate effects, prompting a flurry of criticism that continues. This criticism assumes that an intent standard will rarely be satisfied and that, while it governs, many racial wrongs will remain unproven and therefore unrighted”); Lawrence,
supra
note 14, at 319 (“Improper motives are easy to hide. And because behavior results from the interaction of a multitude of motives, governmental officials will always be able to argue that racially neutral considerations prompted their actions.”); Catharine A. MacKinnon,
Disputing Male Sovereignty: On
United States v. Morrison, 114
Harv. L. Rev
. 135, 137 (2000) (noting that with respect to “the Court’s equal protection jurisprudence—the ‘intent’ requirement [] has made it increasingly difficult to hold states responsible for equal protection violations committed by state actors”); Michael Selmi,
Proving Intentional Discrimination: The Reality of Supreme Court Rhetoric
, 86
Geo.
L.J. 279, 309 (1997) (describing “[t]he Court’s demanding standard for identifying acts of intentional discrimination”); Daniel P. Tokaji,
First Amendment Equal Protection: On Discretion, Inequality, and Participation
, 101
Mich. L. Rev
. 2409, 2454 (2003) (“[I]n cases stretching from
Milliken v. Bradley
through
Washington v. Davis
. . . the Court has—in most though not all contexts—made it increasingly difficult to prove discriminatory intent[.]”).
246
In
Arlington Heights
, the Court recognized that intent could be shown through circumstantial evidence, including “historical background of the decision,” a “specific sequence of events” leading up to the decision being challenged, “[d]epartures from the normal procedural [and substantive] sequence,” and legislative and administrative history. 429 U.S. at 267-68.
247
451 U.S. 100 (1981).
248
Justice Marshall recognized this in his dissent, stating that “[t]his case is easier than the majority makes it appear. Petitioner city of Memphis, acting at the behest of white property owners, has closed the main thoroughfare between an all-white enclave and a predominantly Negro area of the city. The stated explanation for the closing is of a sort all too familiar: ‘protecting the safety and tranquility of a residential neighborhood’ by preventing ‘undesirable traffic’ from entering it. Too often in our Nation’s history, statements such as these have been little more than code phrases for racial discrimination. These words may still signify racial discrimination, but apparently not, after today’s decision, forbidden discrimination.”
Greene
, 451 U.S. at 135-36 (Marshall, J., dissenting).
249
To the extent that a claim concerns discrimination in the context of housing, a plaintiff might have an easier time succeeding with a claim under the Fair Housing Act (FHA), 42 U.S.C. §§ 3601-3619 (2012). There, one need only prove the discriminatory
effects
of a housing program or decision on a minority group.
See, e.g.
, Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 936 (2d Cir. 1988) (agreeing with the Seventh and Third Circuits that a defendant must show that their actions furthered a legitimate government interest and that no alternative would serve that interest with less discriminatory effect); Village of Arlington Heights v. Metro. Hous. Dev. Corp., 558 F.2d 1283, 1290 (7th Cir. 1977) [hereinafter
Arlington Heights II
] (holding that “a showing of discriminatory effect without a showing of discriminatory intent” is under some circumstances sufficient to establish a violation of section 3604(a)). The Supreme Court will take up the issue this term. Inclusive Communities Project, Inc. v. Tex. Dept. of Hous. and Cmty. Affairs, 747 F.3d 275, 282 (5th Cir. 2014),
cert. granted
, 82 U.S.L.W. 3686 (U.S. Oct. 2, 2014) (No. 13-1371).
250
416 U.S. 1 (1974).
251
Id
. at 7.
252
Under the rational basis test, the government must offer only a legitimate governmental interest. Such review rarely leads to the invalidation of the law because it is relatively easy for the government to show some legitimate purpose, and courts are highly deferential to the government’s justifications.
See
Erwin Chemerinsky, Constitutional Law
718 (4th ed. 2013) (“There is a strong presumption in favor of laws that are challenged under the rational basis test.”(citing McGowan v. Maryland, 366 U.S. 420, 425-426 (1961))).
See generally id
. at 717-40 (offering a detailed discussion of rational basis review).
253
“[T]he [
Memphis v. Greene
] Court saw the city’s decision as justified by the importance of discretion to local governments, specifically noting that local governments need ‘wide discretion’ in making the policy decisions that govern traffic patterns.” Selmi,
supra
note 245, at 308 (quoting
Greene
, 451 U.S. at 126).
254
Taken together: (a) proving intent is extremely difficult; (b) not all architectural exclusion is exclusion based on race (much of it is based on class, though intersectionality suggests that the two are often related); and (c) not every instance of architectural exclusion is intentional. But to the extent an architectural decision has discriminatory or exclusionary effects, that should be enough for the courts to take notice, as it is still pernicious.
See, e.g.,
Lawrence,
supra
note 14, at 319 (“[T]he injury of racial inequality exists irrespective of the decisionmakers’ motives. . . . Are blacks less prisoners of the ghetto because the decision that excludes them from an all-white neighborhood was made with property values and not race in mind?”).
255
Some states, however, have adopted statutes that address exclusionary zoning by encouraging or promoting affordable housing.
See, e.g.,
New Jersey Fair Housing Act of 1985,
N.J. Stat. Ann.
§§ 52:27d-301 to -329.19 (West 2013) (creating an administrative agency responsible for determining regional need for low-income housing);
Cal. Gov’t Code
§ 65300 (West 2013) (requiring comprehensive plans with a housing element); The Massachusetts Low and Moderate Income Housing Act,
Mass. Gen. Laws
ch. 40B, §§ 20-23 (2013) (providing incentives to developers who reserve a portion of their constructed units for low- and moderate-income households).
See generally
Rachel G. Bratt,
Overcoming Restrictive Zoning for Affordable Housing in Five States: Observations for Massachusetts
Citizens’ Housing & Plan. Ass’n
(2012),
[http://perma.cc/9ALZ-FP33].
256
Byrne,
supra
note 197, at 2266 (“No state has statutorily barred exclusionary zoning, nor have many state courts expressed any apprehension about it. A few states have hedged the practice with restrictions, or offered limited remedies to the excluded. And then there is New Jersey.” (footnote omitted)).
257
S. Burlington Cnty. NAACP v. Township of Mount Laurel (
Mount Laurel I
), 336 A.2d 713 (N.J. 1975). Byrne mentions a few other courts that have considered exclusionary zoning: “Britton v. Town of Chester, 595 A.2d 492 (N.H. 1991) (relying in part on
Mount Laurel
cases to require in New Hampshire a builder’s remedy less stringent than that in New Jersey); Township of Willistown v. Chesterdale Farms, Inc., 341 A.2d 466 (Pa. 1975) (relying in part on
Mount Laurel I
to find a Pennsylvania township zoning ordinance that provided for apartment construction on only 80% of the 11,589 acres in the township unconstitutionally exclusionary).” Byrne,
supra
note 197, at 2266 n.4;
see also
Nat’l Land & Inv. Co. v. Kohn, 215 A.2d 597, 613 (Pa. 1965) (holding large minimum lot size to be unconstitutional);
cf.
Appeal of Kravitz, Inc., 460 A.2d 1075, 1082 (Pa. 1983) (upholding an ostensibly exclusionary zoning ordinance because locality was not a place where future development was logical).
258
S. Burlington Cnty. NAACP v. Township of Mount Laurel (
Mount Laurel II
), 456 A.2d 390 (N.J. 1983).
259
See
Mount Laurel I
, 336 A.2d at 725-28.
260
Byrne,
supra
note 197, at 2271.
261
Mount Laurel I
, 336 A.2d at 724.
262
Id
. Of course, “economic segregation is not only the easiest but also the most effective form of racial and ethnic segregation . . . .” Williams,
supra
note 17, at 330.
263
Although its implementation has taken an extremely long time, analysis suggests that it has been widely successful.
See, e.g.
, Kirp,
supra
note 230 (noting that the housing development was not approved until 1997, and was not built until 2000, but that “this affordable housing has had zero impact on the affluent residents of that community—crime rates, property values and taxes have moved in step with nearby suburbs—while the lives of the poor and working-class families who moved there have been transformed” (citing
Douglas S. Massey et. al
Climbing Mount Laurel: The Struggle for Affordable Housing and Social Mobility in an American Suburb
(2013) (positively evaluating the Ethel Lawrence Homes, the affordable housing project in Mt. Laurel))).
264
See, e.g.
Ellickson et al.
supra
note 70, at 778 (“Most state courts continue to attach a presumption of validity even to municipal land use controls that admittedly exclude lower-cost housing (absent evidence of a racially discriminatory purpose) . . . .”).
265
See, e.g.
, Erin Durkin,
City Plans To Attack Economic Segregation by Moving Poor into Middle-Class Neighborhoods, Richer into Poverty Spots
N.Y. Daily News
, May 21, 2014,
[http://perma.cc/3E5M-B3XG] (noting that the New York City Council housing chairman “anticipated some resistance [to the plan to build affordable housing in wealthy areas] from affluent New Yorkers unhappy about low-income developments in their neighborhoods . . . .”).
266
For more on Jim Crow laws, see
supra
note 198.
267
See
Boddie,
supra
note 57, at 413;
see also
Michael Selmi
, Proving Intentional Discrimination: The Reality of Supreme Court Rhetoric
, 86
Geo. L.J.
279, 286 (1997) (analyzing “the Court’s reluctance to see discrimination in any but the most obvious situations”).
268
See
Batchis,
supra
note 227, at 40 (“The Court’s trajectory on zoning matters would thus seem unlikely to change in the foreseeable future.”).
269
See
Leonard S. Rubinowitz & Imani Perry, Book Review Essay,
Crimes Without Punishment: White Neighbors’ Resistance to Black Entry
, 92
J. Crim. L. & Criminology
335, 375 (2002) (“The social norms of residential racial segregation were at the core of the structure of twentieth century racial subordination.”).
But see
Massey & Denton,
supra
note 166, at 30-31, 51 (noting that racial segregation was much less common before the 1910s and suggesting that federal programs exacerbated the norm of segregation).
270
Brooks & Rose
supra
note 196, at 212
271
Id.
at 19 (“[I]t took some time before white claims to own the neighborhoods moved beyond informal measures . . . and jelled into the legal form of racially restrictive covenants.”).
272
Rubinowitz & Perry,
supra
note 269, at 375.
273
James W Loewen, Sundown Towns: A Hidden Dimension of American Racism
228-79 (2005). For example:
In Syracuse, Ohio . . . no Negro is permitted to live, not even to stay overnight under any consideration. This is an absolute rule in this year 1905, and has existed for several generations. The enforcement of this unwritten law is in the hands of the boys from 8 to 20 years of age . . . [.]
Id.
at 228 (quoting
For White Men Only
Fairmont Free Press
(W. Va.)
, Dec. 7, 1905).
Some working-class or multiclass sundown suburbs have passed ordinances requiring teachers, firefighters, police officers, and other city workers to live within their corporate limits. Thus they can be assured that all their employees will be white. . . . In turn, African Americans are ineligible to be hired for future openings, since they would first have to move in to be considered.
Id.
at 253.
274
Brooks & Rose
supra
note 196, at 23 (noting that “informal and illegal violence and threats remained as powerful constraints”);
Loewen,
supra
note 273, at 257-77;
Meyer
supra
note 216, at 14 (“Anxious whites used violence and intimidation to keep African Americans off their blocks Blacks saw their homes bombed or stoned.”).
275
Ruth Thompson-Miller et al, Jim Crow’s Legacy: The Lasting Impact of Segregation
4 (2015).
276
Hidden Village, LLC v. City of Lakewood, 734 F.3d 519, 526 (6th Cir. 2013) (“[A] jury could conclude that the officials targeted the organization’s black members in particular . . . . [A]lthough the program had white clients, none of them reported police harassment to [the director]; all complaints of police harassment came from black clients.”).
277
See, e.g.
, Schindler,
supra
note 36, at 425 (noting that, in the context of land use, “legal intervention into architecture . . . all but guarantees that there are no pure design solutions”).
278
Strahilevitz recognized this, stating that “[e]xclusionary zoning would be adequate to keep the poor from
living
in these communities.” Strahilevitz,
supra
note 59, at 488.
279
See, e.g.,
Editorial,
The Death of Michael Brown: Racial History Behind the Ferguson Protests
N.Y. Times,
Aug. 12, 2014,
[http://perma.cc/94JQ-RBBM] (discussing the protests and racial divide in Ferguson, Missouri, and noting that, “[u]ntil the late 1940s, blacks weren’t allowed to live in most suburban St. Louis County towns, kept out by restrictive covenants”).
280
See supra
Part IV.A (discussing legacy issues).
281
That said, although the placement and location of these physical barriers would have the same effect on anyone who must pass under or through them, it may be more or less likely that a person would need to pass under or through them based on the place that the person lives, and where he or she is heading.
282
The right to exclude is
“one of the most essential sticks in the bundle of rights that are commonly characterized as property.”
Dolan v. City of Tigard, 512 U.S. 374, 393 (1994) (quoting Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979))
283
Id.
284
See, e.g
., Hague v. CIO, 307 U.S. 496, 515 (1939) (“Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public . . . .”); Marc Jonathan Blitz,
The Fourth Amendment Future of Public Surveillance: Remote Recording and Other Searches in Public Space
, 63
Am. U. L. Rev.
21, 25 (2013) (“[T]he open and public space that we share with others—in streets, public squares, and parks—is not a private environment. We cannot exclude fellow citizens from this space . . . .”); Haochen Sun,
Fair Use As A Collective User Right
, 90 N.C. L. Rev. 125, 168 (2011) (“[T]angible public space is the open arena where people share common resources that are not held in exclusive possession by any single person.”).
285
See supra
Part III.A.
286
Sometimes necessity or need results in courts bending the right to exclude.
See
State v. Shack, 277 A. 2d 369, 374-75 (N.J. 1971) (holding that
the right to exclude does not include the right to bar access of governmental employees providing services to migrant workers).
287
See supra
Part II.
288
Invalidation of architectural exclusion could take the form of preventing its initial construction or of reconfiguring existing examples.
289
This is because of the difficulty of proving intent, especially in the context of architecture and land use, and because not all exclusionary decisions are based on race.
See, e.g.
supra
notes 266-268 and accompanying text.
290
See supra
Part III.A. Much dialogue surrounding the development of civil rights law in the United States focuses on actions that have a non-discriminatory justification, which could be pretextual. Architectural exclusion fits within that dialogue.
291
Brooks & Rose
supra
note 196, at 57
292
I say “relative” in comparison to the number of cases that the courts have heard concerning other civil rights issues, and specifically, for example, school desegregation.
293
See
Lawrence Lessig, Code and Other Laws of Cyberspace
98 (1999).
294
Tien,
supra
note 22, at 2, 5 (“Architecture . . . can affect us directly without our being aware of what it does. . . . Its effects are normatively significant because we often are not aware that architecture is deliberately being used to constrain our action.”). Ironically, this is why some scholars, including Sunstein, are drawn to the idea of architectural regulation: it preserves a sense of freedom.
See generally
Thaler & Sunstein
supra
note 54.
295
If the intent to discriminate is clear or obvious, even architecture could be actionable in court. But it rarely will be obvious, and we often don’t even think to look for the intent because we don’t think that architecture regulates.
296
“Architecture operates ‘much more [on the] subconscious than [the] conscious. . . . [Y]ou live in architecture, and it affects you whether you’re even conscious of it.’” Katyal,
supra
note 21, at 1072 (quoting Avrel Seale,
Architect Lawrence W. Speck and “The Vision Thing
Tex. Alcalde
, July-Aug. 1999).
297
“Often, we simply have no clue as to who made the key design decisions regarding our settings or equipment.” Tien,
supra
note 22, at 10.
298
Id
299
In describing a criticism of both architecture and “nudge,” or “choice architecture,” as a form of regulation, one commentator notes that the “problem is that regulators perform this substitution [for the coercive function of law] without reintroducing the procedural safeguards that usually attend the passage, interpretation, and enforcement of laws.” Ryan Calo,
Code, Nudge, or Notice?
, 99
Iowa L. Rev
. 773, 777 (2014). With respect to public participation in the creation of laws, see generally
Cary Coglianese et al., Transparency and Public Participation in the Rulemaking Process V
(2008),
[http://perma.cc/U2EU-KDC4] (noting that federal administrative agencies adopt procedures that provide notice to the public and encourage participation with the aim to improve the quality and legitimacy of the rulemaking process);
Karl T. Kurtz, Legislatures and Citizens: Public Participation and Confidence in the Legislature 2
(1997),
[http://perma.cc/27QQ-AFTC] (“In a democracy, the more people involved the better the result.”). That said, many cities do hold public meetings when considering road reconfiguration or the placement of transit stops. However, some of those decisions are eventually determined through administrative processes.
See, e.g.
, Sanchez et al.,
supra
note 119, at ix (“State departments of transportation and Metropolitan Planning Organizations are responsible for planning transportation . . . . Although these agencies are required to seek out and consider the needs of low-income and minority households, there are no effective mechanisms to ensure their compliance with this requirement.”).
300
Calo,
supra
note 299, at 781 (noting that architecture “can, but need not, be subject to the same procedural safeguards as law” and that “[o]ne branch of government (say a city council) can decide to change the architecture of a road . . . and simply hire a contractor to carry out the decision”). On the other hand, some might argue that architectural decisions are more visible than legal decision making because certain choices about infrastructure and architecture are made at the local level, by institutions or councils to which citizens might have more access than the federal or state legislature.
301
See supra
Part III.A.2.
302
See supra
Part III.C. Zoning ordinances are adopted by elected bodies, whereas architectural or infrastructural decisions are often administrative, and thus lack the imprimatur of law. The extent to which this is true, however, is highly location dependent. For example, the city of Portland, Maine, gives the city traffic engineer the authority to establish parking regulations—including residential parking designations—without requiring city council approval.
Portland, Me., Code
§ 28-24(g)(1) (2013) (demonstrating that because authority regarding “no parking any time” and metered parking changes are the only exceptions listed regarding the city traffic engineer’s authority to establish parking regulations, all other types of parking determinations—such as residential parking—do not appear to require amendment to the traffic schedule by the city council. § 28-24(g)(1)(i-ii) (2013)). In contrast, the city of Charleston, South Carolina, requires any change in permit parking to be approved by the city council before it can be implemented.
Charleston, Sc., Code
§ 19-268;
see also
E-mail from Judy Crites, Office Manager, City of Charleston, to Patrick Lyons, Research Assistant, Univ. of Me. Sch. of Law (Apr. 11, 2014, 10:31:00 EST) (on file with author).
303
See supra
Part III.A.2;
see also
Ellickson et al.
supra
note 70, at 778 (“Most state courts continue to attach a presumption of validity even to municipal land use controls that admittedly exclude lower-cost housing (absent evidence of a racially discriminatory purpose), and merely require that the controls be rationally related to some permissible governmental objective.”).
But see supra
note 194 (discussing successful disparate impact claims under the FHA).
304
See, e.g.
Ellickson et al.
supra
note 70, at 758-94 (noting, in the section titled, “Discrimination Against Low- and Moderate-Income Housing,” that in the 1970s “reformers harbored considerable hope that the Supreme Court’s interpretation of the U.S. Constitution would lead to the demise of zoning that had the effect of excluding lower-cost housing for poor or working-class families . . . the Supreme Court refused to cooperate”).
305
See supra
Part III.C (discussing legal versus architectural exclusion).
306
Lessig,
supra
note 20, at 509.
307
Nick Scharf,
Life Through a Lens: A “Lessigan” Model for Understanding Digital Copyright Infringement?
, 16
J. Internet L.
18, 26 (2012) (“The modality of ‘architecture’ represents the physical burdens in existence . . . .”).
308
Tien,
supra
note 22, at 4 (describing architectural regulation as “government action directed at the real-world conditions of human activity, tangible or intangible, which in turn affects what people can or are likely to do”).
309
Id.
at 3, 7 (citing
Lessig,
supra
note 293, at 237).
310
See
Lessig,
supra
note 293, at 237 (discussing law and norms as after-the-fact regulation, and architecture as a present constraint on action). Of course, law may also serve a deterrent function.
311
Id.
(noting that norms and law prevent a person from breaking into a neighbor’s home to access her air conditioning, while a lock on the door is a form of architectural constraint).
312
Id
313
Tien,
supra
note 22, at 10.
314
For example, we do not need laws to prevent large buildings from being stolen; their architecture protects them and effectively prohibits their theft. Lessig,
supra
note 20, at 523 (“We have special laws to protect against the theft of autos, or boats. We do not have special laws to protect against the theft of skyscrapers. Skyscrapers take care of themselves. The architecture of real space . . . protects skyscrapers much more effectively than law. Architecture is an ally of skyscrapers (making them impossible to move); it is an enemy of cars, and planes (making them quite easy to move).”).
315
Of course, breaking the law and circumventing the architectural constraint are sometimes one and the same; examples are going the wrong way down a one-way street or parking in a residential parking permit zone without such a permit.
316
Because excluded communities are often also poor or underserved, exit is not always a real choice.
See, e.g.
Albert O. Hirschman
Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States
(1970) (discussing exit and voice). Indeed, part of architectural exclusion is that a person actually cannot get out (or in)–either due to physical barriers that make it difficult or the lack of transit options. Further, the lack of a true ability to exit is one of the strongest arguments against Tiebout’s theory, which suggested that communities provide different goods and services that appeal to different types of people and that people will seek out a community that provides them with the most appealing goods and services.
Compare
Charles M. Tiebout,
A Pure Theory of Local Expenditures
, 64
J. Pol. Econ
. 416 (1956),
with
Nick Gill & Andrés Rodríguez-Pose,
Do Citizens Really Shop Between Decentralized Jurisdictions?: Tiebout and Internal Migration Revisited
, 16
Space & Polity
175 (2012) (noting that analysis of other nations suggests that there is only a weak link between migration among jurisdictions and decentralization),
and
Kenneth Bickers & Richard N. Engstrom,
Tiebout Sorting in Metropolitan Areas
, 23
Rev. Pol’y Res
. 1181 (2006) (finding random sorting among municipalities in the Houston and Atlanta metropolitan areas). However, in order to uproot and move to a more appealing community, a person needs resources, including money and job flexibility.
317
Katyal,
supra
note 21, at 1043 (“Research in architectural theory and environmental psychology reveals that architects influence, in subtle ways, the paths by which we live and think.”).
318
See supra
Part I;
see also
Scott
supra
note 29, at 117-32; Boddie,
supra
note 57, at 442 (“The theory that space might be used for social control may be foreign to constitutional law . . . .”); Katyal,
supra
note 21, at 1087 (“The theory of how architecture shapes tastes has been developed within the field of environmental psychology and has been largely ignored by law schools due to their focus on the use of legal codes to regulate conduct.”).
319
See supra
Part I.A;
see also
Edward T. Hall
The Hidden Dimension
4 (1966) (“[B]oth
man and his environment participate in molding each other
. Man is now in the position of actually creating the total world in which he lives . . . . In creating this world he is actually determining
what kind of an organism
he will be. This is a frightening thought in view of how very little is known about man. It also means that, in a very deep sense, our cities are creating different types of people in their slums, mental hospitals, prisons, and suburbs.”); Boddie,
supra
note 57, at 442; Katyal,
supra
note 21, at 1131-32.
320
John Zeisel
Sociology and Architectural Design
26 (1975) (describing how the built environment “express[es] individual group affiliation . . [and] send[s] informal public messages”).
321
See, e.g.
, Katrina Fischer Kuh,
Capturing Individual Harms
, 35
Harv. Envtl. L. Rev.
155, 166 (2011) (“The capacity of local governments to change the physical architecture of communities is an important way that local governments influence individual lifestyles and behaviors . . . .”);
see also
9 + 1 Ways of Being Political: 50 Years of Political Stances in Architecture and Urban Design
Museum Modern Art,
[http://perma.cc/E72E-2XG5] (“The political potential of architecture was one of the founding credos of the avant-garde in the early 20th century. Yet today it is commonly believed that this potential has been overwhelmed by economic realities and by the sense that architecture, by its very nature, is symbiotic with existing power structures.”).
322
Martin Heidegger
Building Dwelling Thinking
in
Poetry, Language, Thought 143, 153
(Albert Hofstadter trans., Harper & Row 1971). Foucault, in his discussions of the Panopticon, noted that “architecture can shape tastes. When architecture ‘is no longer built simply to be seen . . . but to permit an internal, articulated and detailed control[;] . . . architecture . . . operate[s] to transform individuals.’” Katyal,
supra
note 21, at 1131-32 (quoting
Michel Foucault, Discipline and
Punish
171 (Alan Sheridan trans., Vintage Books 2d ed. 1995) (1975)).
323
Caro,
supra
note 1, and accompanying text.
324
Gunter A. Dittmar,
Architecture as Dwelling and Building Design as Ontological Act
Cloud Cuckoo Land
5 (1998),
[http://perma.cc/V72S-RMPA];
see also
Joerges,
supra
note 28, at 412 (“Architects, for instance, may want people to communicate, and can then design their office buildings accordingly.”). This idea of designing a space to foster certain types of discussions or interactions was examined in the work of architect and artist Lebbeus Woods.
See
Lebbeus Woods - Biography
, Eur. Graduate Sch.
[http://perma.cc/J8ZL-6LJB] (“Woods works independently and creates various conceptual and experimental projects based on his theoretical positions regarding the role of architecture as a political force in society.”).
325
Winner,
supra
note 28, at 125.
326
Architectural features often appear as mere design choices to uninformed observers.
Amos Rapoport, The Meaning of the Built Environment: A Nonverbal Communication Approach
139 (1982) (noting that in parts of the Middle East, sloped roofs are viewed as a status symbol and flat roofs as a symbol of poverty; those who have sloped roofs are giving up space that could otherwise be used for sleeping and working).
327
Similarly, research also suggests that most courts do not consider the racial setting or community history and demographics (referred to as “racial territoriality”) underlying decisions and actions that take place in a given community.
See
Boddie,
supra
note 57.
328
Mohl,
supra
note 153, at 31;
see also
Helen Leavitt, Superhighway—Superhoax
177-80 (1970); Richard J. Whalen,
The American Highway: Do We Know Where We’re Going?
Saturday Evening Post
, Dec. 14, 1968, at 22-24, 57-58. This decision was made at a nonpublic meeting. Mohl,
supra
note 153, at 31.
329
See
Nashville I-40 Steering Comm. v. Ellington, 387 F.2d 179 (6th Cir. 1967).
330
Id.
at 181.
331
Id
(quoting memorandum opinion of district court). When a court determines that a given issue goes to wisdom and not legality, it has determined that the issue at hand either does not implicate legal matters, or it does not violate the law.
See, e.g
., Rosenberger v. Rector & Visitors of Univ. of Virginia, 795 F. Supp. 175, 182 (W.D. Va. 1992),
aff’d
, 18 F.3d 269 (4th Cir. 1994),
rev’d
, 515 U.S. 819 (1995) (finding that “the plaintiffs’ complaints about the Guidelines are more properly directed at the wisdom and not the legality of the restrictions. . . . [because] the Board’s Guidelines are reasonable and do not violate any of the plaintiffs’ constitutional rights”);
see also
Jonathan R. Siegel,
A Theory of Justiciability
, 86
Tex. L. Rev
. 73, 76 (2007) (“The ‘properly limited’ role of the courts in a democratic society is to rule only on the legality, and not on the wisdom, of the decisions of political officials.”).
332
387 F.2d at 185.
333
Of course, one could argue that courts regularly defer to administrative agencies when those agencies possess expertise on a given matter; perhaps the same reasoning applies to the court’s willingness to defer to engineers and planners in the case of architectural decisions. However, it is also possible that the court here is not deferring to the administrators about design decisions merely because they have expertise in those matters, but because it does not view those design decisions as legal issues at all.
334
See, e.g.
supra
Part III.A.2 (explaining that existing jurisprudence is often insufficient for addressing exclusionary zoning).
335
US. Const.
amend. XIV, § 1 (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”);
see, e.g
., Kadrmas v. Dickinson Pub. Sch., 487 U.S. 450, 458 (1988); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977); Warth v. Seldin, 422 U.S. 490 (1975); James v. Valtierra, 402 U.S. 137, 141–43 (1971).
336
See, e.g.
, Moore v. City of E. Cleveland, 431 U.S. 494 (1977); Holmes v. New York City Hous. Auth., 398 F.2d 262 (2d Cir. 1968).
337
See, e.g.
, City of Memphis v. Greene, 451 U.S. 100, 124-29 (1981); Palmer v. Thompson, 403 U.S. 217, 226-27 (1971); Crenshaw v. City of Defuniak Springs, 891 F. Supp. 1548, 1556-57 (N.D. Fla. 1995); Atkins v. Robinson, 545 F. Supp. 852, 880 (E.D. Va. 1982),
aff’d
, 733 F.2d 318 (4th Cir. 1984).
338
See, e.g.
, Sanchez et al.,
supra
note 119, at ix (“Civil rights laws such as Title VI of the Civil Rights Act of 1964 . . . provide some legal protections for minority communities faced with discriminatory transportation policies. Enforcement of these protections, however, has been limited and should be increased. Currently there are no generally accepted measures or standards by which to gauge whether transportation planning and outcomes of transportation policies are equitable, and it is extremely difficult to enforce any requirements for equitable transportation policies.”).
339
Section 1982 of the Civil Rights Act of 1866 states that “[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.” 42 U.S.C. § 1982 (2012);
Robert G. Schwemm, Housing Discrimination: Law and Litigation
§ 27:8 (Westlaw) (noting that “exclusionary zoning cases often include a § 1982 claim”).
340
The Fair Housing Act makes it unlawful to “otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin,” which could apply to architectural exclusion that blocks access to a person’s home. 42 U.S.C. § 3604(a) (2012);
Schwemm,
supra
note 339,
§ 27:8 (“Though § 1982 remains available to curb public discrimination, the Fair Housing Act has now become the principal weapon against government land-use restrictions that are racially discriminatory.”). However, the examples of architectural exclusion in this Article are broader than claims surrounding access to housing; they speak to access to and through entire communities.
See, e.g.
, Southend Neighborhood Improvement Ass’n v. Cnty. of St. Clair, 743 F.2d 1207, 1209, 1212 (7th Cir. 1984) (suggesting that section 3604(a) requires a strong connection between the activity that is challenged and evidence that the activity will result in the denial or unavailability of housing).
341
McDougall,
supra
note 235, at 623-24.
342
While a complete analysis of all of these claims is beyond the scope of this Article, this section will examine a few cases that address architectural exclusion and glean lessons from these claims.
343
What follows is not a complete list of every case that has considered architectural exclusion. Rather, it represents a diligent effort to locate cases addressing issues relevant to the theme of this Article.
344
See, e.g.,
City of Memphis v. Greene, 451 U.S. 100, 123 (1981). Some road closure cases involve challenges to actions by private parties by their neighbors.
See, e.g.,
Evans v. Tubbe, 657 F.2d 661 (5th Cir. Unit A Sept. 1981); Jennings v. Patterson, 460 F.2d 1021, 1022 (5th Cir. 1972).
345
Greer v. City of Chicago, No. 95-C-6338, 1996 WL 169414 (N.D. Ill. Apr. 9, 1996).
346
See, e.g.,
Labor/Cmty. Strategy Ctr. v. Los Angeles Cnty. Metro. Transp. Auth., 564 F.3d 1115 (9th Cir. 2009); N.Y. Urb. League, Inc. v. New York, 71 F.3d 1031 (2d Cir. 1995); Comm. for a Better N. Phila. v. Se. Pa. Transp. Auth., 1990 U.S. Dist. Lexis 10895 (E.D. Pa 1990),
aff’d
, 935 F.2d 1280 (3d Cir. 1991).
347
See infra
Part IV.B.2.
348
Boddie,
supra
note 57, at 411 (footnote omitted). Unless the discriminatory intent behind an exclusionary architectural decision is made quite clear, it is generally not actionable. Even if there is discriminatory intent, in the context of infrastructure decisions, that intent is generally mixed in with more legitimate reasons. Even in the context of exclusion by law, it is quite common that “the applicable law or ordinance was facially neutral though its impact was felt exclusively or disproportionately by blacks.” Austin,
supra
note 118, at 672.
349
See supra
Part III.C (discussing architectural and legal exclusion).
350
See supra
note 339.
351
See
City of Memphis v. Greene, 451 U.S. 100, 123 (1981) (“[T]he threshold inquiry under § 1982 must focus on the relationship between the [defendant’s conduct] and the property interests of the [plaintiff].”). This provision relates more to property transfers and holdings than access. One problem with using section 1982 in the context of architectural exclusion is that it relies on the African-American plaintiff’s possession of a stake in a piece of property. Architectural exclusion, understood broadly, is more about restricting access, regardless of where the excluded person lives. That said, it will often be the case that the access restriction is imposed between a black neighborhood and a wealthy, white one. If that is the case, the statute has more applicability. Of course, it does not apply to situations that exclude poor people who are not people of color.
352
See, e.g.
, Gallagher v. Magner, 619 F.3d 823, 839 (8th Cir. 2010),
cert. granted
, 132 S. Ct. 548 (2011),
cert. dismissed
, 132 S. Ct. 1306 (2012) (“Appellants’ claims pursuant to 42 U.S.C. §§ 1981, 1982, and 1985 are duplicative with their FHA disparate treatment claim, as the underlying constitutional violations for these claims require a showing of discriminatory intent.”); Jackson v. Okaloosa Cnty., 21 F.3d 1531, 1543 (11th Cir. 1994) (“[P]laintiffs who make claims under § 1982 . . . have been required to allege that some intentional discrimination took place.”).
353
See
Schwemm,
supra
note 339, §§
27:4, 27:8, 27:19 (“The Supreme Court has not yet decided whether § 1982 includes a discriminatory effect standard.”).
354
Jones v. Alfred H. Mayer Co., 392 U.S. 409, 438 (1968) (“[Section] 1982 operates upon the unofficial acts of private individuals . . . .”);
Schwemm,
supra
note 339, § 27:14 (noting that “[s]ome plaintiffs, such as black homeseekers who are the direct objects of the defendant’s discrimination, are so obviously the intended beneficiaries of § 1982 that their standing is beyond question”);
id.
§ 27:15 (noting that “minority homeseekers have standing to sue under § 1982 whenever a developer, landlord, homeowners’ group, or any other defendant denies them the right to buy, rent, or negotiate for housing”);
see also
Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237 (1969) (holding that a white homeowner who wanted to rent his house to an African-American tenant had standing under section 1982 when defendants interfered with his actions).
355
See infra
notes 371-373 and accompanying text.
356
451 U.S. 100 (1981).
357
See id.
at 102-05.
358
Id.
at 104.
359
Boddie,
supra
note 57, at 416.
360
Greene
, 451 U.S. at 103-04 (noting that the city denied the residents’ request to close all four streets “[a]fter receiving objections from the police, fire, and sanitation departments”).
361
Boddie,
supra
note 57, at 416.
362
Greene v. City of Memphis, 610 F.2d 395, 396 (6th Cir. 1979) (noting that it is unclear whether the new owners of the property will bar all foot traffic, but that “the proposed conveyance will leave them with the absolute right to do so if they wish”).
363
451 U.S. at 105 n.6.
364
610 F.2d at 405.
365
See
451 U.S. at 109-10 (explaining the holding of the lower court).
366
See
e.g
.,
id.
at 117-19 (discussing the lack of sufficient evidence regarding effects on property values).
367
Id.
at 128-29.
368
Id
. at 114.
369
Id.
at 114-16, 119. Both here and in the context of the forthcoming analysis, it is possible that the Court was not saying that architectural exclusion can never be unconstitutional, but rather that it did not want to turn every single architectural decision into a question of federal law.
370
Id.
at 119.
371
Id.
at 123.
372
Id.
at 124.
373
For example, Moses’s low bridges did not adversely affect a property interest; rather, they adversely affected individuals who were reliant on public transit.
374
Greene
, 451 U.S. at 111-12, 120-24;
see also
Southend Neighborhood Improvement Ass’n v. Cnty. of St. Clair, 743 F.2d 1207, 1212 (7th Cir. 1984) (holding that “[t]he impact of an allegedly wrongful activity clearly must be more than negligible to constitute a cognizable claim”).
375
Greene
, 451 U.S. at 123 n.36;
see
Jennings v. Patterson, 488 F.2d 436 (5th Cir. 1974).
376
Jennings v. Patterson, 460 F.2d 1021, 1022 (5th Cir. 1972).
377
Jennings
, 488 F.2d at 439.
378
Id.
379
See id.
at 441.
380
Id.
at 442.
381
42 U.S.C.
§§ 1981-1983, 1985 (2012). The court found that the plaintiffs were injured, in part, because they were denied “convenient access to downtown.”
Jennings
, 488 F.2d at 442.
382
See
City of Memphis v. Greene, 451 U.S. 100, 136-55 (Marshall, J., dissenting).
383
Id.
at 153.
384
Boddie,
supra
note 57, at 456-57;
see also
Greene
, 451 U.S. at 137 (Marshall, J., dissenting) (“[A]s the District Court found, Hein Park ‘was developed well before World War II as an exclusive residential neighborhood for white citizens and these characteristics have been maintained.’”);
Thomas Ross, Just Stories: How the Law Embodies Racism and Bias
43 (1996) (describing Hein Park as “all-white, a situation first established by a set of racial covenants that precluded the sale of any property to anyone of another race”).
385
The goal of the Thirteenth Amendment is to “abolish slavery of whatever name and form and all its badges and incidents; to render impossible any state of bondage; to make labor free, by prohibiting that control by which the personal service of one man is disposed of or coerced for another’s benefit.” Bailey v. Alabama, 219 U.S. 219, 241 (1911).
386
Greene
, 451 U.S. at 128.
387
Cf.
Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954) (“To separate them from others . . . solely because of their race generates a feeling of inferiority as to their status in the community . . . .”).
388
Greene
, 451 U.S. at 152-53 (Marshall, J., dissenting) (“[I]t defies the lessons of history and law to assert that if the harm is only symbolic, then the federal courts cannot recognize it.”).
389
Id.
(“It is simply unrealistic to suggest, as does the Court, that the harm suffered by respondents has no more than ‘symbolic significance’ . . . .”).
390
Blomley,
supra
note 44, at 55.
391
Greene
, 451 U.S. at 128.
392
Id.
393
Winner,
supra
note 3, at 124.
394
See Greene
, 451 U.S. at 128;
Paul Harris, Black Rage Confronts the Law
72 (1997) (“[T]he [Greene] Court closes its eyes and ears to segregated housing patterns, racial hostility, and the power of the white property owners to get the City of Memphis to do its racist bidding.”);
see also
supra
Part III (examining the laws and norms that led to racial and socioeconomic exclusion from certain parts of a given community and surveying judicial and legislative treatment of those traditional forms of legal regulation).
395
Greene
, 451 U.S. at 128.
396
Ross,
supra
note
384
at 43 (“After the legal demise of [racially restrictive] covenants, private understandings maintained the exclusive character of Hein Park”).
397
Michael Selmi,
Proving Intentional Discrimination: The Reality of Supreme Court Rhetoric
, 86
Geo. L.J.
279, 338 (1997) (claiming that the Supreme Court takes a limited view of discrimination).
398
Others, in addition to the majority, seemed to view it this way. For example, an amici stated, “The sanctioning by this Court of the closing of West Drive may very well signal to white communities all over the country that municipal zoning power is available to physically exclude ‘undesirable elements,’ definable in racial terms, and thereby create a virtually all white ‘oasis’ in the midst of a rapidly deteriorating nether world.” Brief for the Affirmative Action Coordinating Center et al. as Amici Curiae at 2-3,
Greene
, 451 U.S. 100 (No. 79-1176), 1980 WL 339376. But here, this was not merely a zoning law that made it difficult for these individuals to access a place; it was physical exclusion.
399
See
Brief for Respondents Owens, Cross, and Burse at 3-4,
Greene
, 451 U.S. 100 (No. 79-1176), 1980 WL 339375 (noting that a black civic association’s petition to the City Council stated that “this closing symbolize[d] in unmistakable terms a white neighborhood shutting its door on its adjacent Black and integrated communities”).
400
Greene
, 451 U.S. at 140 (Marshall, J., dissenting).
401
John O. Calmore,
The Law and Culture-Shift: Race and the Warren Court Legacy
, 59
Wash. & Lee L. Rev.
1095, 1119 (2002) (noting that Marshall’s dissent in Greene was representative of him serving as the Court’s conscience).
402
See also
R.A. Lenhardt,
Understanding the Mark: Race, Stigma, and Equality in Context,
79
N.Y.U. L. Rev.
803 (2004) (recognizing that antidiscrimination law is limited in its ability to address stigma and implicit biases).
See generally
Jerry Kang & Kristin Lane,
Seeing Through Colorblindness: Implicit Bias and the Law
, 58
UCLA L. Rev
. 465 (2010) (discussing implicit bias).
403
Howard Ball, A Defiant Life: Thurgood Marshall and the Persistence of Racism in America
205 (1998) (quoting
John C Jeffries, Jr., Justice Lewis F. Powell, Jr.
261 (1994)).
404
Terry Properties, Inc. v. Standard Oil Co., 799 F.2d 1523 (11th Cir. 1986).
405
Id.
at 1528.
406
Id.
at 1536.
407
657 F.2d 661 (5th Cir. Unit A Sept. 1981).
408
Id.
at 662.
409
Id.
410
Id
. at 662 n.2.
411
See supra
note 11 and accompanying text;
supra
note 375 and accompanying text.
412
“A consent decree is a settlement, in the form of a court order, containing injunctive relief in which the trial court agrees to maintain jurisdiction over the case.” Thomas M. Mengler,
Consent Decree Paradigms: Models Without Meaning
, 29 B.C. L. Rev. 291, 292 (1988).
413
See
Yan,
supra
note 119, at 1137 (noting that “[t]ransit justice advocates have developed two lines of substantive equity cases,” the first “focus[ing] on the distribution of subsidies across transit lines, typically alleging that transit agencies favored rail lines with predominantly white riderships used to commute between suburbs and central cities over bus lines with predominantly minority riderships used primarily for short, intra-city trips,” and second “examin[ing] the siting of transit lines themselves” (citing Findings of Fact and Conclusions of Law re: Preliminary Injunction, Labor/Cmty. Strategy Ctr. v. L.A. Cnty. Metro. Transp. Comm’n, No. CV 94-5936 (C.D. Cal. Sept. 21, 1994))).
414
Labor/Cmty. Strategy Ctr. v. L.A. Cnty. Metro. Transp. Auth., 564 F.3d 1115, 1117 (9th Cir. 2009).
415
Id.
416
Id.
417
See
Greer v. City of Chicago, No. 95-C-6338, 1996 WL 169414, at *1-2 (N.D. Ill. Apr. 9, 1996).
418
See id.
at *1.
419
See id.
at *2.
420
Cheryl W. Thompson,
Cul-de-sac Plan Jeered on South Side
Chi. Trib.
, Jan. 24, 1993,
[http://perma.cc/SPX5-Z453].
421
Cindy Richards,
Cul-de-sacs and Circles Divert Cars, Not Criticism
Chi. Trib.
, May 15, 1998,
[http://perma.cc/66F9-Y827] (noting that “traffic volume has been reduced in those areas [including parts of the South Side] by 50 percent since [cul-de-sacs] were installed”).
422
Sometimes those undertaking exclusionary architectural actions, such as members of a city council, might not be acting with obvious intent or animus, due in part to the background of unconscious racism in the United States. Lawrence noted, in relation to
Memphis v. Greene
, that “[i]ndividual members of the city council might well have been unaware that their continuing need to maintain their superiority over blacks, or their failure to empathize with how construction of the wall would make blacks feel, influenced their decision.” Lawrence,
supra
note 14, at 357 (citation omitted);
see also id.
at 357 n.185 (noting that “Justice Stevens’ opinion in
Memphis
is itself an example of how a decision need not involve self-conscious racial animus to be race-dependent”).
423
Pat Somers Cronin, Op-Ed,
The Road (or Cul-de-sac) to Disaster
Chi. Trib.
, May 21, 1998,
[http://perma.cc/4DX5-W9U3].
424
Thompson,
supra
note 420.
425
Cronin,
supra
note 423.
426
Richards,
supra
note 421.
427
Greer v. City of Chicago, No. 95-C-6338, 1996 WL 169414, at *2 (N.D. Ill. Apr. 9, 1996) (citing Memphis v. Greene, 451 U.S. 100 (1981)).
428
Id.
As this Article has addressed, discriminatory effect alone is not enough in the context of an equal protection claim.
See supra
note 244 and accompanying text.
429
348 F. Supp. 2d 398, 411 (D. Md. 2005).
430
Id.
at 428.
431
Id
. at 429; Texeira,
supra
note 105.
432
Thompson
, 348 F. Supp. 2d at 429.
433
Id.
at 428 n.56.
434
Id.
at 431.
435
Id.
at 431-32 (finding that, for example, they believed the fence would be an amenity to the senior housing they planned to build on the site in the future, functioning like a fence around a gated community).
436
Id.
at 432.
437
See, e.g.
, Charles E. Cohen,
Eminent Domain After
Kelo v. City of New London
: An Argument for Banning Economic Development Takings,
29
Harv. J. L. & Pub. Pol’y
491, 547-48 (2006) (describing the mistake of urban renewal); Robert C. Ellickson,
The Law and Economics of Street Layouts: How a Grid Pattern Benefits a Downtown
, 64
Ala. L. Rev.
463, 491 (2013) (referring to urban renewal-related superblocks as a “mistake in policy”); Nicole Stelle Garnett,
The Public-Use Question as a Takings Problem
, 71
Geo. Wash. L. Rev
. 934, 953 (2003) (“Despite the enthusiasm of ‘slum clearance’ proponents, whose viewpoint the Supreme Court accepted with vigor in
Berman v. Parker
, urban renewal generally is considered an abysmal failure.”).
438
See supra
Part II.A.
439
Moreover, the government must now comply with the mandates of the National Environmental Policy Act (NEPA) when undertaking large projects involving federal funding, such as many transportation projects involving highways, bridges, and transit stop placement. 42 U.S.C. § 4321 (2012). Although NEPA is often criticized for lacking “teeth”—it is an information-forcing statute, not one that requires specific actions as a result of the information discovered—it does require consideration of the “human health, economic, and social effects” that a project will have on low-income and minority communities in some instances. William J. Clinton,
Memorandum for the Heads of All Departments and Agencies
White House
(Feb. 11, 1994),
[http://perma.cc/RN2E-FCR4];
Sanchez et al.,
supra
note
119
see also
Exec. Order No. 12,898, 59 Fed. Reg. 7629 (1994) (providing that “each Federal agency shall . . . identify[] and address[] . . . disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations”).
440
“[U]nlike fashions, which come and go, the enduring nature of architecture is seen by the Gothic and Renaissance examples still standing (and in use!) today . . . .”
See History
Cal. Architects Bd.
[http://perma.cc/7B3Y-6689];
cf
. Lebbeus Woods,
Inevitable Architecture
Lebbeus Woods (
July 9, 2012, 9:38 PM),
[http://perma.cc/UK7L-RXRR] (“Most architects dislike the idea of buildings’ decay and work hard to avoid it by the careful selection of materials, systems, and methods of assembly that will withstand the forces of nature continually attacking them, chiefly those of weather.”).
441
Eduardo M. Peñalver,
Land Virtues
, 94
Cornell L. Rev
. 821, 853 (2009).
442
See, e.g.
, Ryan Cooper,
Why Is It So Expensive To Build a Bridge in America?
Wk.
, Mar. 10, 2014,
[http://perma.cc/2TRV-P7R5] (“U.S. infrastructure isn’t just a tad higher than the next most expensive country—we pay something like twice as much as our closest peer.”); Angie Schmitt,
Why Are American Infrastructure Projects So Expensive?
Streetsblog
(Aug. 29, 2012),
[http://perma.cc/8GFX-6NRX] (“The state of Wisconsin is preparing to spend $1.7 billion on an interchange. Kentucky and Indiana are getting ready to spend $2.6 billion on a bridge. The Portland region will spend at least $3.2 billion on its own bridge/highway. And New York’s car-centric Tappan Zee Bridge replacement is projected to cost in the range of $5 billion. Part of the reason these projects cost so much is that they involved rolling major road widenings into what should be simpler infrastructure fixes.”).
443
Sager,
supra
note 226, at 770 (1969).
444
The federal government owns and manages approximately 635 to 640 million acres of land in the United States.
Ross W. Gorte et al., Cong. Research Serv., Federal Land Ownership: Overview and Data 1
(2012). Although much of that land is far from cities and undeveloped, publicly owned “[c]ity streets and sidewalks account for about one-quarter of developed urban land . . . .” Katyal,
supra
note 21, at 1095. Thus, the government controls a large portion of the U.S.-built environment, and the decisions it makes in creating these spaces can have dramatic impacts on populations.
445
Boddie,
supra
note 57, at 420.
446
347 U.S. 483, 494 (1954) (recognizing that segregation “generates a feeling of inferiority as to [black students’] status in the community. . . .”); Lawrence,
supra
note 14, at 350-51 (discussing the role of stigma in
Brown
).
447
Boddie,
supra
note 57, at 420 n.114;
see also
Timothy Zick,
Constitutional Displacement
, 86
Wash. U. L. Rev
515, 517 (2009) (“[T]here is no more fundamental liberty than the freedom to choose one’s own place. The loss of that freedom can result in severe forms of not only personal, but constitutional, displacement.”).
448
Boddie,
supra
note 57, at 423 (“Because they belong to one space but not another, their dignity as individuals is spatially contingent.”);
see also
Schuette v. Coalition To Defend Affirmative Action, 134 S. Ct. 1623, 1676 (2014) (Sotomayor, J., dissenting) (“Race matters because of . . . the silent judgments that reinforce that most crippling of thoughts: ‘I do not belong here.’”); Zick,
supra
note 447, at 517 (discussing freedom).
449
See, e.g.
Xavier de Souza Briggs
The Geography Of Opportunity: Race And Housing Choice In Metropolitan America
(2005); George C. Galster & Sean P. Killen,
The Geography of Metropolitan Opportunity: A Reconnaissance and Conceptual Framework
, 6
Housing Pol’y Debate
7 (1995); James E. Rosenbaum et al.,
How Do Places Matter? The Geography of Opportunity, Self-Efficacy and a Look Inside the Black Box of Residential Mobility
, 17
Housing Stud.
71 (2002); Gregory D. Squires & Charis E. Kubrin,
Privileged Places: Race, Uneven Development and the Geography of Opportunity in Urban America
, 42
Urb. Stud.
47 (2005).
450
See generally
Robert J. Sampson,
Moving to Inequality: Neighborhood Effects and Experiments Meet Social Structure
, 114
Am. J. Soc.
189 (2008) (discussing causal claims for the effect of neighborhoods on employment outcomes); Squires & Kubrin,
supra
note 449, at 47 (arguing that poor education, housing, and other resources in neighborhoods contribute to future poor employment opportunities).
451
Strahilevitz,
supra
note 59, at 489.
452
Reva B. Siegel,
Equality Talk
Antisubordination and Anticlassification Values in Constitutional Struggles Over Brown
, 117
Harv. L. Rev
. 1470, 1472-73 (2004);
see also
Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954) (noting that the separation of black students “solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone”).
453
2013 Report Card for America’s Infrastructure
, Am. Soc’y Civ. Engineers
3 (Mar. 2013),
[http://perma.cc/X69J-GPU4].
454
Id.
at 3 (“Six infrastructure sectors benefited from either an increase in private investment, targeted efforts in cities and states to make upgrades or repairs, or from a one-time boost in federal funding.”);
id.
at 4 (“[I]nvesting in infrastructure is essential to support healthy, vibrant communities . . . [and] is also critical for long-term economic growth, increasing GDP, employment, household income, and exports.”).
455
Id.
at 48-50. Moreover, in the United States $12.8 billion is spent annually on bridge construction and refurbishment, over $75 billion has been invested in railroads since 2009, and over $52 billion has been spent on public transit since 2008.
Id.
at 6-7, 53.
456
See supra
Part III.A.2 (discussing exclusionary zoning).
457
Daniel R. Mandelker,
Racial Discrimination and Exclusionary Zoning: A Perspective on Arlington Heights
, 55
Tex. L. Rev
. 1217, 1219 (1977). Of course, this approach has not seen much traction since the time of Mandelker’s writing.
458
Katyal suggests that governments could “redesign city streets to reduce crime . . . [by altering] the placement of bus stops and other public transit facilities so that they are not near alleys and other easy escape routes.” Katyal,
supra
note 21, at 1095. The same infrastructure could be altered so that it no longer divides and cuts off neighborhoods, and instead increases access.
459
See, e.g.
, National Environmental Policy Act, 42 U.S.C. §§ 4321-4347 (2012); California Environmental Quality Act,
Cal. Pub. Res. Code
§§ 21000-21189.3 (West 2012).
460
Similarly, perhaps inclusiveness could be used as a screening criterion for projects that require grants, including those for housing, transportation, or community development.
461
This was the argument made in Chinese Staff & Workers’ Ass’n v. Burden, 910 N.Y.S.2d 761 (N.Y. App. Div. 2011).
462
Exec. Order No. 12,898, 59 Fed. Reg. 7629 (Feb. 11, 1994).
463
For a detailed overview of Executive Order 12,898 and its efficacy, see generally Amanda K. Franzen,
The Time Is Now for Environmental Justice: Congress Must Take Action by Codifying Executive Order 12898
, 17
Penn. St. Envtl. L. Rev.
379 (2009). The order directs that each Federal agency “[t]o the greatest extent practicable and permitted by law . . . shall make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.” Exec. Order No. 12,898, 59 Fed. Reg. at 7629.
464
Exec. Order No. 12,898, 59 Fed. Reg. at 7632-33 (
noting that it is
“not intended to, nor does it create any right, benefit, or trust responsibility, substantial or procedural, enforceable at law or equity by a party against the United States”). Moreover, the order states that it should not be “construed to create any right to judicial review involving compliance or noncompliance of the United States, its agencies, its officers, or any other person.”
Id.
at 7633.
465
See
Joshua Glasgow,
Not in Anybody’s Backyard? The Non-Distributive Problem with Environmental Justice
, 13
Buff
Envtl. L.J.
69, 113 (2005).
466
Franzen,
supra
note 463, at 389-90 (highlighting the failures of the order by showing how the Bush Administration was able to roll back many of the gains made in environmental justice during the 1990s through cuts to the EPA’s budget regarding environmental justice oversight, including Superfund).
467
See, e.g.
, California Environmental Quality Act,
Cal. Pub. Res. Code
§§ 21000–21189.3 (West 2012); New York State Environmental Quality Review Act,
N.Y. Envtl. Conserv. Law
§§ 8-0101 to -0117 (McKinney 2015).
468
See, e.g
., Todd Nelson, Save Tara
and the Modern State of the California Environmental Quality Act
, 45
Loy. L.A. L. Rev.
289, 292-93 (2011) (“CEQA challenges have become an effective tool to block projects that opponents deem undesirable, even if the reasons for their opposition are seemingly unrelated to environmental impacts.”).
469
Winner,
supra
note 28, at 126;
see also supra
note 30 (summarizing cases suggesting that the ADA was needed due to the neglect of disabled individuals’ needs).
470
Robin Paul Malloy,
Inclusion by Design: Accessible Housing and Mobility Impairment
, 60
Hastings L.J.
699, 710 (2009).
471
Interestingly, many individuals with disabilities self-identify as members of a distinct minority group consisting of people with disabilities. Harlan Hahn,
Antidiscrimination Laws and Social Research on Disability: The Minority Group Perspective
, 14
Behav. Sci. & L.
41, 48 (1996).
472
The main entrance must be made accessible if possible.
See Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities
U.S. Architectural & Transp. Barriers Compliance Bd.
§ 4.13 (2002),
[http://perma.cc/W6RS-DFKQ]. Similarly, the Fair Housing Amendments Act of 1988 prohibits discrimination in the sale or rental of housing due to a handicap, and Congress intended the Act to be a “clear pronouncement of a national commitment to end the unnecessary exclusion of persons with handicaps from the American mainstream.”
H.R. Rep.
No. 100-711, at 18 (1988).
473
Some city officials say that they will revise the zoning code to disallow future poor doors.
See
Janet Babin,
New York Skyscraper’s Separate ‘Poor Door’ Called A Disgrace,
NPR
(July 30, 2014, 4:59 AM),
[http://perma.cc/V6PJ-YD2B].
474
Winner,
supra
note 28, at 125.
475
42 U.S.C. § 12183(a)(1) (2012) (asserting that, under the ADA, discrimination includes “a failure to design and construct facilities for first occupancy . . . that are readily accessible to and usable by individuals with disabilities”).
476
541 U.S. 509 (2004).
477
San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 17-18 (1973).
478
“Recognizing that failure to accommodate persons with disabilities will often have the same practical effect as outright exclusion, Congress required the States to take reasonable measures to remove architectural and other barriers to accessibility.” 541 U.S. at 531.
479
“In the case of facilities built or altered after 1992, the regulations require compliance with specific architectural accessibility standards. But in the case of older facilities, for which structural change is likely to be more difficult, a public entity may comply with Title II by . . . relocating services to alternative, accessible sites and assigning aides to assist persons with disabilities in accessing services.”
Id.
at 532 (internal citation omitted).
480
See
Civil Div.,
Reaching Out to Customers With Disabilities, Lesson Four
U.S. Dep’t Just.,
[http://perma.cc/U4JC-YQP4] (“Barrier removal is considered ‘readily achievable’ when it can be easily accomplished, without much difficulty or expense.”).
481
See
Robert G. Schwemm,
Barriers to Accessible Housing: Enforcement Issues in “Design and Construction” Cases Under the Fair Housing Act
, 40
U. Rich. L. Rev
753, 754 (2006).
482
See, e.g.
, Jane Aiken & Katherine Goldwasser,
The Perils of Empowerment
, 20
Cornell J.L. & Pub. Pol’y
139, 173 (2010) (“[T]he anti-smoking campaign provides a powerful example of how such a campaign can change perceptions of harm and, in so doing, shift the social norms about getting involved.”); Eric Biber,
Climate Change and Backlash
, 17
N.Y.U. Envtl. L.J.
1295, 1339 (2009) (“Norm-shifting could be accomplished through educational efforts using schools, public service announcements, etc. Current examples of fairly successful environmental norm-shifting efforts in the United States include the Smokey Bear campaign by the U.S. Forest Service to encourage the safe use of fire in natural areas, and anti-littering campaigns.”).
483
Every time the author presented this Article, numerous commenters provided her with examples of architectural exclusion in their own towns.