Architectural Exclusion: Discrimination and Segregation through Physical Design of the Built Environment
Sarah B. Schindler
University of Maine School of Law, email@example.com
University of Maine School of Law Digital Commons
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.
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. During the time that he was appointed to a number of important state and local offices, he shaped much of New York’s infrastructure, including a number of “lowhanging overpasses” on the Long Island parkways that led to Jones Beach. According to his biographer, Moses directed that these overpasses be built intentionally low so that buses could not pass under them. This design decision meant that many people of color and poor people, who most often relied on public transportation, lacked access to the lauded public park at Jones Beach.
Although the Atlanta, Georgia, metropolitan area is known for its carcentric, sprawling development patterns, it has a subway system: the Metropolitan Atlanta Regional Transit Authority (MARTA).Wealthy, mostly white residents of the northern Atlanta suburbs have vocally opposed efforts to expand MARTA into their neighborhoods for the reason that doing so would give people of color easy access to suburban communities. The lack of publictransit connections to areas north of the city makes it difficult for those who rely on transit—primarily the poor and people of color—to access job opportunities located in those suburbs.
At the request of white residents, in 1974 the city of Memphis closed off a street that connected an all-white neighborhood to a primarily black one. Supporters of this measure argued that it would ostensibly reduce traffic and noise, in addition to promoting safety. 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.” 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.” He believed that through this action, the city was sending a clear message to its black resi- dents, 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. 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. 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.
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 seem- ingly 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, 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.” 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.” 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.
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.” 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.
Part II considers the practice of architectural exclusion. It details a number of ways that municipalities—through actions by their residents, their police forces, or their local elected officials—have created infrastructure and designed their built environs to restrict passage through and access to certain areas of the community. Such devices include physical barriers to access—low bridges, road closings, and the construction of walls—as well as the placement of transit stops, highway routes, one-way streets, and parking-by-permit-only requirements.
In Part III, the Article considers the way that courts have analyzed exclusion through traditional land-use methods. Unlike architectural exclusion, these traditional methods of exclusion are of central concern to modern law, in part because lawmakers and legal analysis tend to focus on regulation through law and norms. This Part provides context by briefly discussing the history of overt physical exclusion by law in the United States. It examines the laws and norms that led to racial and socioeconomic exclusion from certain parts of a given community, and it surveys judicial and legislative treatment of those traditional forms of legal regulation, including racially restrictive covenants, racial zoning, and exclusionary zoning.
Part IV continues a discussion of exclusion in the courts, but more specifically considers the application of existing legal constraints—including the Equal Protection Clause and the Civil Rights Act of 1866—to architectural exclusion. It provides examples of a small number of court cases that involve architectural exclusion and finds that even if legal decision makers were to take account of architecture as a form of regulation, our current jurisprudence appears inadequate for addressing exclusion that results from design.
The Article concludes in Part V by recognizing that architectural decisions are enduring and hard to change. While outdated laws are often overturned when the norms informing them have sufficiently evolved, our exclusionary built environment, which was created in the past, continues to regulate in the present. Judicial and legislative solutions could alleviate, at least in part, the continuing harmful effects of architectural exclusion. These might include a version of the Americans with Disabilities Act that addresses architectural exclusion on the basis of race or class, or the modification of existing environmental review statutes to include an analysis of architectural exclusion. Public education and engagement could also serve to bring more awareness to the fact that the built environment often excludes. This Article seeks to serve that end by offering examples of architectural exclusion with the hope that citizens, courts, legislators, administrators, and legal scholars will look for ways to accommodate more effectively the exclusionary effects of design decisions.
i. Architectural exclusion: Theory
Throughout history, people have used varied methods to exclude undesirable individuals from places where they were not wanted. People used the law by passing ordinances saying that certain individuals could not access certain locations. Social norms encouraged some to threaten undesirable persons with violence if they were to enter or remain in certain spaces. 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. The first two methods of discrimination have received sustained attention from legal scholars; the third form, which I refer to as architecture, has not. This Part departs from tradition by focusing on architecture instead of ordinances and social norms.
A. Architecture as Regulation
We often experience our physical environment without giving its features much thought. For example, one might think it a simple aesthetic design decision to create a park bench that is divided into three individual seats with armrests separating those seats. Yet the bench may have been created this way to prevent people—often homeless people—from lying down and taking naps.
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.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. Legal scholars addressing constraints on behavior traditionally focus on regulation through law, which is often termed simply “regulation.”