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
The yale law journal 124:19 34 20 15
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. In contrast, “[d]isobedience of architectural regulation . . . involves either [1] exit from the architected system or [2] circumvention of the architected constraint.” In the context of the built environment, it is often quite difficult to physically circumvent an architectural constraint. 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. 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.
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. 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. However, the idea of architecture as social control is foundational to social science fields such as geography, environmental psychology, and planning. 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. 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.” 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.” Despite the fact that both law and design control behavior, many fail to view the important symbolism or purpose behind many architectural decisions. 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. 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. A federal lawsuit, brought by black and white citizens with interests in North Nashville, failed to stop the construction of the highway. 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.” 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.”
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.” 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.
B. The Jurisprudence of Exclusion Fails To Account for Architecture
1. Claims: Laws That Could Be Used To Challenge Architectural Exclusion
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.) 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. Constitution and, to a lesser extent, the Due Process Clause and the Thirteenth Amendment. 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, including section 1982 of the Civil Rights Act of 1866339 and the Fair Housing Act. Plaintiffs often raise state constitutional claims as well. These same claims arise in the context of architectural exclusion, with varying degrees of success.
To the extent that courts have examined issues of architectural exclusion, they have often done so in the context of transportation—road closures, road design, and the structure of transit systems. As the cases below suggest, claims concerning architectural exclusion often sound in equal protection and section 1982. 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.” Again, this is true not just in the case of architectural exclusion, but also with respect to more traditional, legal forms of exclusion.
In the architectural exclusion cases discussed below, successful plaintiffs tend to prevail on claims under section 1982. To allege a violation of section 1982, a plaintiff must show that the conduct of the defendants has impaired her property (or contract) interest. Cases suggest that a plaintiff will be more likely to succeed if she can demonstrate that she has been intentionally discriminated against, although the Supreme Court has not ruled out the possibility that discriminatory effect might be sufficient. 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.
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.
2. Holdings: Application of Relevant Law to Architectural Exclusion
The highest-profile case addressing architectural exclusion was the Supreme Court’s analysis of a road closure in City of Memphis v. Greene. 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. 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. This “traffic pollution” was allegedly coming from the adjacent black neighborhood. 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. 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.” 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.
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. 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. 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. 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, and dismissed the plaintiffs’ claims.
The Court found that there was “no evidence that the closing was motivated by any racially exclusionary desire.” Rather, the Court acknowledged the legitimate tranquility and safety-related traffic concerns espoused by City Council members and residents at the public hearings. Consequently, because it found discriminatory intent lacking, the Court quickly dismissed the equal protection claim. 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.” 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. 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. 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.”
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. In Jennings, the defendants, who were white, constructed a barricade on the road on which their houses were located. 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. In contrast, the sole white resident of that neighborhood was offered an easement to pass through the barricade. The city refused to remove the barricade.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,” and so found a violation of various provisions of the Civil Rights Act, including section 1982.
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. 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.” 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.
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. The Court stated that “the fact that most of the drivers who will be inconvenienced by the action are black” is of “symbolic significance,” but failed to afford weight to that symbolism. 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. Further, the majority failed to recognize that the harm was in fact more than merely symbolic and stigmatizing.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. 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.
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.” Further, the court ignored the underlying reasons that neighborhoods often share a “common ethnic or racial heritage.” 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,” 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. 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. But at base, Greene is not merely an example of a city using its laws to keep individuals out. 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.
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. Perhaps this is because he was “able to see through legal complexities and grasp real human suffering underneath the abstraction.”
Or, as the first black Supreme Court Justice, perhaps he understood implicit racial bias better than did his colleagues. 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.’” 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. The rerouting increased the travel distance between a black residential community and other points in the city. 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.
The yale law journal 124:19 34 20 15
However, the Fifth Circuit determined that plaintiffs raised valid claims under section 1982 in Evans v. Tubbe. In Evans, the plaintiff, who was black, owned property that could be accessed only by a road that passed through the defendant’s property. 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.”
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.”
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, is Labor/Community Strategy Center v. Los Angeles County Metropolitan Transportation Commission (the Bus Riders Union case). 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. 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.” 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.”
When architectural exclusion cases of this sort do not settle, and move forward on constitutional claims, they face the same problems that run-of-themill 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. 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. 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.
The yale law journal 124:19 34 20 15
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,” while another stated that the cul-de-sacs and traffic circles were installed in the area to reduce traffic volume and speed. While the intent behind the architecture might legitimately relate to traffic calming and crime prevention, 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.” Regardless of the actual intent, the
effect—as felt by members of the community—was that low-income AfricanAmericans would be “isolate[d]” and “put . . . in a cage.”
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. 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. 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.
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. They claimed that the fence was constructed to “physically . . . separate” the black residents of Hollander Ridge from the adjacent white neighborhood, Rosedale. Many Rosedale residents were concerned about public safety and wanted separation from the high levels of crime at Hollander Ridge; 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.” 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.”
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.” The court further found that the housing authority and HUD were both acting for legitimate nondiscriminatory reasons.