Architectural Exclusion: Discrimination and Segregation through Physical Design of the Built Environment

Sarah B. Schindler
University of Maine School of Law,
University of Maine School of Law Digital Commons

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. More over, these scholars generally agree that architectural decisions will favor some groups and disfavor others.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.”

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. 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.As a result, many planning decisions facilitate exclusion within cities.

Legal scholarship is generally less explicit than planning scholarship about the ability of the built environment to shape behavior. Exceptions include the legal literature surrounding crime prevention through environmental design, led by Neal Katyal, and some emerging law and geography scholarship. 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.”

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.

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. 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.” And Susan Sturm uses architecture as a metaphor in her work on structural inequality within institutions of higher education. 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.”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.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. Although this may appear to be a banal observation, few in the legal community have discussed architecture itself as a regulatory tool.

B. Architecture as Architecture in Legal Scholarship: Racialized Space and Place, Briefly

Although legal scholars do not often write directly about architecture as regulation, some—especially law and geography scholars and critical race theorists—have confronted concepts like architecture, the built environment, municipal infrastructure, space, and place in the context of class and race. 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.

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. 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. 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.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.

Legal academics have also proposed the idea that spaces themselves have racial meanings. 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. 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. Similarly, Stephen Clowney has addressed the way in which landscapes, parks, and statues create a narrative that often marginalizes African Americans. 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 racemaking.”

While these authors offer compelling explorations of spatial organization’s ability to exclude and culturally marginalize, their critiques have not yet penetrated the mainstream of land-use or civil rights law. Law and lawmakers habitually overlook the way that the built environment functions as an express tool of exclusion. For example, a leading land-use casebook has a chapter called “discriminatory land use controls.” This chapter addresses discrimination against people of color, the poor, “unconventional households,” and people with disabilities. 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.

Finally, some legal fields have addressed racialized forms of geographic organization—for example, the environmental justice movement and the literature addressing discrimination in the provision of municipal services. 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.

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. 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.

ii. architectural exclusion: practice

The architecture of the built environment directs both physical movement through and access to places. This Part details a number of ways that states and municipalities—through actions by their residents, police force, planning staff, engineers, or local elected officials—have created infrastructure and designed their built environs to restrict passage through and access to other areas of the community. A number of specific exclusionary techniques have been used to keep people out, including physical barriers to access, the siting of transit and transportation infrastructure, and the organization of residential neighborhoods. While some of these designs expressly serve to exclude those who are unwanted, others have that effect indirectly. This Part will examine a number of these methods of exclusion.

A. Physical Barriers to Access

A number of localities have used physical barriers to exclude. A paradigmatic example of architectural exclusion through physical barriers is Robert Moses’s Long Island bridges that were mentioned in the Introduction to this Article.80 Moses set forth specifications for bridge overpasses on Long Island, which were designed to hang low so that the twelve-foot tall buses in use at the time could not fit under them. “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.” 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.”

Instead of garnering support to pass a law banning poor people or people of color from the places in which he did not want them—which, if the intent were clear, would not be permissible today—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. 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.”

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. 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 carpedestrian collisions. 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. Jewish people in Europe were made to live in separate, walled areas, as were Arab and European traders in China. This form of physical exclusion by walls and barriers is nothing new. 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. Historically, the Federal Housing Administration (FHA) provided financing for a new development project only  if the neighborhood was sufficiently residential and racially segregated. 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. 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. 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. 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. 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.” The fence was originally erected by the city of Hamden in the 1950s to keep crime in the New Haven projects out of Hamden. 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.” Hamden agreed to remove the fence only after the New Haven Housing Authority threatened to “sue Hamden on civil rights grounds.” A similar eight-foot-tall spiked fence was installed in 1998 around a public housing project in Hollander Ridge in Baltimore. 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. 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.”