Architectural Exclusion: Discrimination and Segregation through Physical Design of the Built Environment
Sarah B. Schindler
University of Maine School of Law, sschindler@maine.edu
University of Maine School of Law Digital Commons
3. Wayfinding: One-Way Streets, Dead-End Streets, Curvy Streets, and Confusing Signage
Another method of exclusion involves the creation and use of one-way streets. These streets function to funnel traffic away from certain areas and into others.There are sometimes health- and safety-based reasons for the creation of one-way streets, including traffic-calming and pedestrian safety. 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. For example, Greenmount Avenue in East Baltimore separates the poor, redominantly African-American neighborhood of Waverly on its east side from the wealthy, predominantly white neighborhood of Guilford on its west. 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. 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. 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. 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. 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.
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.” 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. Citizens there have, for years, been removing directional signs that the State Department of Transportation places on Highway 1 to direct drivers toward Bolinas. 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. Further, while perhaps successful from an exclusionary standpoint, these architectural elements often result in less efficient travel for residents.
4. Residential Parking Permits
In some neighborhoods, people can park on the street only if they live in the neighborhood and have a residential parking permit or are given a guest permit by a resident. 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, the county had adopted a rule that restricted daytime street parking to residents with residential parking permits, excluding commuters who had previously parked on local streets. 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. 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.
The effect of these types of residency requirements is often to exclude people who do not live in a given neighborhood from that neighborhood. The examples of architectural exclusion identified in this Part are concerning in that they reveal a number of underlying problems. For example, physical exclusion prevents members of minority groups from partaking in the civic life of the community; makes it extremely difficult or physically dangerous for some people to access wealthier communities and jobs; may result in stigma or harm to dignity; can often destroy existing communities of color; and may allow groups to conceal racially discriminatory motives behind a veneer of health and safety rationales. These problems and others will be analyzed more fully in the remainder of this Article.
iii. a brief history of exclusion by law (and norms)
This Article has demonstrated that the built environment serves to segregate and has highlighted ways in which segregation by architecture, like segregation by law, operates in a pernicious manner. The remainder of the Article seeks to establish how legal decision makers tend to overlook the regulatory nature of architectural forms of exclusion. It does this by examining judicial consideration of physical exclusion by law and by architecture.
Before exploring the ways that courts have approached cases addressing architectural exclusion, it is important to consider the long history of legally permissible physical exclusion in the United States and the eventual intervention in these practices by legislators and courts. Legal scholars and historians have repeatedly recounted the formal laws and informal norms that furthered racial and socioeconomic exclusion in this country. 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. And the wealthy have long used formal legal methods to keep the poor and people of color out of their communities.
This Part describes the way that law has historically been used to exclude “undesirable” members of a community from certain parts of the community. It analyzes the most common, explicit tools of exclusion—including racial zoning, racially restrictive covenants, and exclusionary zoning—that courts and legislators tend to view as proper topics for consideration, though they often fail to consider architecture and design as validly within their purview.
A. Legal Regulation that Furthered Exclusion
When land-use and property-law scholars consider the interplay between land-use law and the exclusion of people of color and the poor, they tend to think about methods of exclusion from neighborhoods through the use of law—racial zoning, racially restrictive covenants, and exclusionary zoning.
This section will briefly consider each in turn, demonstrating that while courts have disapproved of racial zoning and racially restrictive covenants, they have been more ambivalent about exclusionary zoning, finding that it is generally not actionable.
1. Judicial Disapproval
a. Racial Zoning
Initially, some cities tried to use their zoning powers directly to keep out minorities. Baltimore passed one of the first racial zoning ordinances in 1910, and the ordinance was quickly imitated by a number of Southern cities. 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. After those designations were made, black people could not move onto primarily white blocks. 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.”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.” These were commonly held views among many at the time.
In the 1917 case Buchanan v. Warley, 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. While the Court’s opinion mentioned racial equality, its holding centered on the issue of property rights and due process. 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. These attempts were unsuccessful; courts struck them down. Having been blocked from using public law in a directly discriminatory way, those intent on exclusion turned to other methods.
b. Racially Restrictive Covenants
Many community members relied on private law and adopted racially restrictive covenants, and these covenants became a common way to keep minorities out of certain neighborhoods for many years. 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.”
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. Courts initially viewed racially restrictive covenants as legal; in Corrigan v. Buckley, the Court noted that the covenants were merely private contracts concerning private property and involved no state action.
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. Their legality allowed these covenants to become “institutionalized and internalized,” and therefore very hard to challenge. That said, many legal scholars at the time vigorously opposed the Court’s treatment of racially restrictive covenants in Corrigan. Practicing real estate lawyers also expressed concern about the legal validity of racially restrictive covenants, even after the Court’s decision.Some worried that courts would hold the covenants to be unreasonable restraints on alienation and consequently strike them down.
In 1948, the Court decided Shelley v. Kraemer, famously holding that racially restrictive covenants could not be enforced because such enforcement would constitute state action. There are also now federal statutory prohibitions against racially restrictive covenants, and some states require homeowners’ associations to affirmatively renounce any lingering recorded racially restrictive covenants.
2. Judicial Ambivalence: Exclusionary Zoning
After being blocked from using public- and private-law exclusionary techniques, some municipalities found ways to use zoning more indirectly to keep out residents they viewed as undesirable. Exclusionary zoning is a method whereby municipalities’ zoning regulations require large lot sizes, squarefootage 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. 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. 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.
Those supporting exclusionary zoning practices are often purportedly motivated by the desire to preserve property values, but sometimes their motivations do not seem all that different from the more nefarious ones that were set forth in support of racial zoning. 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. 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.”
Although many legal scholars have critiqued the practice of exclusionary zoning, 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.
It is hard to see how standard federal constitutional arguments would work in the context of exclusionary zoning, especially because housing is not a fundamental right, wealth is not a suspect classification, and the Court has suggested that zoning restrictions do not interfere with the fundamental right to travel.
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.
To the extent the Supreme Court has spoken to the issue of exclusionary zoning, it has made constitutional challenges to exclusionary ordinances quite difficult. The Court held in Village of Arlington Heights v. Metropolitan Housing Development Corp. 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. Since Washington v. Davis, 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; nproving that infrastructure decisions were made with the intent to discriminate is even more unlikely. Indeed, in Memphis v. Greene, which was decided shortly after Arlington Heights, the Court was unwilling to find evidence of discriminatory intent in the face of clear disparate impact.