Architectural Exclusion: Discrimination and Segregation Through Physical Design of the Built Environment
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.
Robert Moses was known as the “Master Builder” of New York.1 During the time that he was appointed to a number of important state and local offices,2 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.3 According to his biographer, Moses directed that these overpasses be built intentionally low so that buses could not pass under them.4 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.5
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).6 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.7 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.8
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.9 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.
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.
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.
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 overlook68 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 movement75 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
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 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 today84—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.
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.
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.
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 Park157 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
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.
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.
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.
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.
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
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
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 I,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 places266—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 States269: “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.
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.
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 invalidate288 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
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  exit from the architected system or  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
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. Constitution335 and, to a lesser extent, the Due Process Clause336 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 1866339 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
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.
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.
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.
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.
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 order462 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
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.
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 community483 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?