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

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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 the Supreme Court upheld an exclusionary zoning ordinance after applying rational basis review. It will always be difficult for a plaintiff to overcome rational basis review. 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;  it is not difficult to find legitimate, rational justifications—typically relating to health, safety, or welfare—for most zoning ordinances.

While no state has forbidden exclusionary zoning via statute, some state courts have placed limitations on it. An especially well known and farreaching 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). In that case and its successor, the court invalidated exclusionary zoning practices based on the general welfare provision in the state constitution.

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. 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. Of note, although the plaintiffs pled both

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Race and economic discrimination, the court based its opinion on the economic grounds alone.
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. 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.

Further, unlike racial zoning and racially restrictive covenants, which clearly exclude on the basis of race, exclusionary zoning is fuzzier. While its intent and effect certainly result in the exclusion of certain groups, exclusionary zoning does not inherently prohibit or forbid people of color, or even low-income individuals, from entering or living in the community. Rather, it just makes it exceedingly unlikely that those groups of individuals will be able to live in those areas. In this way, exclusionary zoning has more in common with architectural exclusion than it does with racial zoning and restrictive covenants.

While exclusionary zoning and architectural exclusion make access much more difficult for certain groups, these practices do not mandate exclusion. The bottom line seems to be that the Supreme Court has been fairly active and responsive in striking down laws that create “formal racial barriers”—racial zoning, racially restrictive covenants, Jim Crow laws requiring physical separation in public places —but not so when considering other “less obvious forms of discrimination”—including (to some extent) exclusionary zoning and architectural exclusion. 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.

B. Social Norms That Furthered Exclusion: Sundown Towns, “White Terrorism,” and Threats To Keep the “Other” Out

One reason that restrictive covenants and zoning for exclusion were so common is that they were preceded by a long history of norms in support of segregation in the United States : “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.” These norms existed before their exclusionary legal counterparts, 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.”

The book Sundown Towns identifies large numbers of ordinances and customs that purportedly made it illegal for African Americans to live in certain communities. 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. 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.”  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.  An important point here is that law could be used to restrain and condemn these norm-based discriminatory practices and regulations; legislatures could craft laws to outlaw such discriminatory behavior, and strong enforcement of those laws could ensure that harassers are punished accordingly. Law could be used to overcome or disrupt exclusionary architectural practices as well.

C. A Clarification: Legal Exclusion Versus Architectural Exclusion

Before moving on to an analysis of architectural exclusion in the courts, it is important to briefly solidify the distinction between that form of exclusion and the foregoing material in this Part, which has primarily focused on legal, or law-based, forms of exclusion. Legal exclusion concerns the use of traditional legal tools like ordinances and covenants to exclude people from certain locations, whereas architectural exclusion uses physical features of the built environment to do so. Tools of legal exclusion are enforced by law enforcement officials, agencies, self-policing, and vigilante action, while architectural exclusion is enforced by its very presence, which physically inhibits or hinders passage. However, because so much of the built environment was created pursuant to laws, it is hard to decouple the two completely.

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, and the legacy of those laws remains; many neighborhoods continue to be segregated nearly a century later. 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. 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.

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. In the private property context, society places value on the right to exclude. In contrast, we tend to believe that public spaces should be open to all, and thus we do not value exclusion in that context. De jure residential segregation historically required and allowed individuals to exclude in a way that is no longer permissible. So while we value the right to exclude others from private property, we place limits on the extent of and reasons for that exclusion. Dejure residential segregation also resulted in architectural constraints to support and further that segregation. Many examples of architectural exclusion addressed above were constructed while de jure segregation was still in force—often with the intent of furthering that segregation—and remain in place today. Although most segregation by law is no longer permissible, its remnants—the legacy of that segregation—continue to exclude individuals from public spaces. Thus, we are faced with a gap between the value that we purportedly place on exclusion (it is valued in private but not public spaces) and the exclusion that we see on the ground: our public streets and bridges, which should be equally accessible to all, are often not. Architectural exclusion is pernicious in that it is invisible to most, and yet it continues to solidify otherwise defunct forms of legal exclusion.

iv. architectural exclusion in the courts: a lack of attention and success

A review of the limited case law and scholarly literature in this and related areas suggests that there are two barriers to finding exclusionary architecture to be an illegal form of regulation. The first is the failure of courts, legislatures, and citizens to recognize that architecture regulates. The result is that many examples of architectural exclusion likely go unchallenged or are dismissed. The second is that, even if challengers and decision makers come around to understanding the idea of architecture as regulation, our existing jurisprudence is insufficient to invalidate this form of exclusion. 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. 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. These two barriers contribute to the relative dearth of cases and scholarly articles addressing architectural exclusion.

A. A Failure To Recognize Architecture as Regulation

There are a number of reasons that potential challengers, courts, and legislators might not take architectural exclusion into account, but key among these is that architecture and law are, in many ways, fundamentally different as regulatory tools. Specifically, architecture is less explicitly regulatory than is law.

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Lessig refers to this as architecture “hid[ing] its pedigree.” 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.” 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.

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. And even if one realizes that these architectural decisions were deliberate, it is hard to know who actually made those design choices. The “career” of a law is clearer than that of architectural regulation. 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. 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. Here, it is useful to make a comparison to exclusionary zoning, which unlike architectural exclusion, is clearly a form of regulation by law. 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, there have been many law review articles discussing it, and it is covered in depth in land-use casebooks. 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.

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.” 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. Law constrains behavior, while architecture constrains physical movement and hence behavior.

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. 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. 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.

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.