Architectural Exclusion: Discrimination and Segregation through Physical Design of the Built Environment
Sarah B. Schindler
University of Maine School of Law, firstname.lastname@example.org
University of Maine School of Law Digital Commons
The yale law journal 124:19 34 20 15
Thus, the court held that the plaintiffs could not make out a claim of intentional discrimination. Synthesizing these cases and considering them alongside the more traditional methods of exclusion discussed in Part III—racial zoning, racially restrictive covenants, and exclusionary zoning—it appears that the judicial treatment of different methods of exclusion will depend on a number of factors. These include whether the constraint is being imposed on a legal right of access or a physical right of access; whether the constraint is being put in place by a governmental actor or a private actor; the extent to which the method is a legacy issue or ongoing; and whether it was undertaken with an overtly racially discriminatory purpose, merely has discriminatory or exclusionary effects, or whether there were mixed motives. The bottom line is that
(a) few of these cases have even been brought due to a failure to consider architecture as regulation; and
(b) those that have been brought face the same types of challenges that more traditional methods of exclusion, such as exclusionary zoning, face in the courts.
v. problems and solutions
A. Legacy Problems and the Enduring Nature of Architecture
There is some question as to whether the problems discussed in this Article are merely legacy problems (that is, present physical manifestations of policies that are now defunct), problems that are still ongoing, or a bit of both. Answering this question is important not only to understand the severity of the problem more fully, but also for the purposes of considering appropriate solutions. Certainly, many of the examples of architectural exclusion discussed herein are associated with the urban renewal and highway projects of the 1950s and 1960s. Those projects are no longer being carried out and are now viewed
by many as mistakes. Additionally, while most forms of exclusion by law have been declared illegal and the laws repealed, the architecture built in response to those laws remains in place. That said, exclusionary zoning is still quite common, and the exclusionary placement of transit stops and transit infrastructure is ongoing.
Even if architectural exclusion is predominantly a legacy problem, there is still value in pointing out historical issues, especially when they are issues that constrain present behavior and of which the law does not take account. Further, even if some more progressive cities and planning departments now consider some of these issues in making decisions about the built environment, the legacies of the past continue to regulate in the present. Architecture is enduring; the layout of cities is hard to change. As Eduardo M. Peñalver notes,
“The durability of land-use decisions’ consequences and the finite quantity of land mean that the decisions that current owners make about how to use their land will reverberate for generations.” Our roads, bridges, and structures are built in place and made to withstand time and the elements; removal and redevelopment are very expensive. And while courts and legislators typically
the yale law journal 124:19 34 20 15
eliminate old laws upon deciding that they are no longer valid—such as the eradication of racial zoning and the removal of old racially restrictive covenants from chains of title—it is much more difficult to remove exclusionary architecture from the built environment. This is one reason that many courts do not require people to tear down structures that were constructed in violation of ordinances; violators often pay a fine instead. The built environment continues to regulate; as a legal matter, nothing is currently forcing municipalities to confront the continuing harms that result from those past architectural decisions. This is a problem because “there are no meaningful lines between that which the state tolerates, that which it encourages, and that which it effectuates.”
Further, these decisions are problematic because public infrastructure and public spaces are such important and dominant features of the built environment.
There are a number of reasons that even legacy effects of the exclusionary built environment are problematic and should be ameliorated. First, as many commentators have noted, a person who is physically excluded from a place often feels stigmatized and degraded; preventing stigma was key to the Court’s holding in Brown v. Board of Education.446 Indeed, a key element of the civil rights movement was to further and promote “unencumbered movement” as an important right. When certain groups of people are intentionally kept out of, or made to have a hard time accessing, certain parts of a community, it limits their freedom and harms their dignity.
Similarly, extensive research has explored the “geography of opportunity,” which suggests that the place in which a person grows up and lives has a dramatic impact on her future earning ability and educational attainment. The mechanisms through which neighborhoods have an impact on future outcomes for their residents are much debated, but part of the effect likely results from the lack of political power and access to public resources and institutions that often come with residence in a low income neighborhood. The geography of opportunity provides insight into the social costs of segregation in housing and the built environment, which tends to heavily affect racial minorities; their exclusion “engenders their absence from valuable social networks.”
Finally, because the built environment exists as a result of direct decisions by policymakers who are employed by the state (or municipality), it is effectively the state that has created the exclusion. As Reva Siegel has reminded us, on an antisubordination conception of equal protection “it is wrong for the state to engage in practices that enforce the inferior social status of historically oppressed groups.” By failing to actively alleviate the continuing harms caused by the exclusionary environment, the state allows those practices to continue. However, because there is at present no affirmative duty for the state to act to remove legacy exclusionary architecture, there is likely no current state action that could be challenged in court.
Although no laws currently force local governments to reconsider or reconfigure their exclusionary infrastructures, cities and states do have the opportunity, and perhaps even the incentive, to significantly alter the built environment and remedy some of the impacts of architectural exclusion. The nation’s infrastructure is in substantial decline and in need of major revitalization; many of the roads and bridges in the United States were put in place over fifty years ago, and these systems are becoming overwhelmed or worn out. Moreover, there are substantial economic incentives to revitalize the country’s failing infrastructure, and numerous initiatives have been undertaken in recent years to address these issues. For example, more than $91 billion of capital is invested annually to improve the nation’s highways and roads. Consequently, there exists an opportunity for localities to address the impacts of architectural exclusion as part of the much-needed rebuilding and repairing of outdated infrastructure.
Without large-scale rebuilding, architecture and the built environment are durable and hard to change. Therefore, it will likely be more difficult to eradicate existing exclusionary infrastructure than to prevent the creation of future barriers to access, assuming that citizens, city planners, elected officials, judges, and lawmakers begin to take the ideas expressed here into consideration. The solutions proposed below will discuss ways to alleviate the harms of existing architectural exclusion and ways to prevent it in the future.
B. Proposed Solutions: Courts and Legislators
1. Judicial Solutions Are Unlikely To Be Successful
Courts could take action to address the harms associated with architectural exclusion. However, as was detailed above, current civil rights law does not show much promise for architectural exclusion claims. It is possible that the courts could change course by adopting a more modernized or progressive view of the Equal Protection Clause, or by imposing a higher level of scrutiny in cases that involve architectural exclusion claims. Courts could also issue injunctive relief if evidence of architectural exclusion is severe. This would require a locality to modify the built environment to remove exclusionary barriers to access.
However, this is all quite unlikely given the current political and judicial climate. Recall that most courts do not even find fault with exclusionary zoning, which is a form of regulation by law. Some commentators have therefore suggested that the exclusionary zoning problem is one that should be solved by legislatures rather than courts. For example, Daniel R. Mandelker concluded that “the federal courts should not expansively read the fourteenth amendment to require a wholesale judicial review of exclusionary zoning practices absent proof of discriminatory racial intent. Congressional, rather than judicial, correction of racially segregative zoning is urged as a more attractive alternative.” Perhaps the same could be said for exclusionary architecture: this is a problem that local (or state) governments should attack, not the courts. Those legislative or administrative solutions could force consideration of architectural exclusion in new design, could be applied retroactively to force removal of exclusionary architecture in some cases, and could provide a statutory cause of action in the event that decisions are made in violation of their mandates. However, even a statutory solution would require legislators and administrative staff to take seriously the idea of architecture as regulation.
2. Legislative Solutions Carry Some Promise
Elected officials at the federal, state, or local level could take actions that would alleviate some of the harms imposed by the exclusionary built environment. These solutions could address legacy effects of exclusionary architecture by forcing reformation of certain existing discriminatory infrastructure,458 requiring consideration of architectural exclusion in the funding or construction of new infrastructure, and providing a route for potential plaintiffs to sue in the future if a locality fails to comply with the new requirements set forth in the law. This legislative solution could be modeled on similar statutory requirements in related areas, including environmental law and disability law.
C. An Architectural Bent on an Environmental Impact Statement
When undertaking large projects, administrators are often required to conduct a detailed environmental review pursuant to state or federal law. This analysis could be expanded to include consideration of a proposed project’s impacts on the exclusion of certain underrepresented groups, including poor people and people of color. Indeed, one could arguably read some existing state environmental statutes to incorporate those concerns into an analysis of a proposed project’s social impacts, including impacts on neighborhood character and socioeconomics. This approach would allow actors to concern themselves with the exclusionary effects of architectural design choices rather than with the motivations underlying those choices.
A similar approach has been used to address environmental justice concerns: President Clinton issued an executive order calling for numerous federal agencies to ensure that the environmental effects of their policies and programs would not disproportionately affect minorities and the poor. However, the executive order is non-binding and legally unenforceable. Accordingly, agencies are not forced to give any particular weight to environmental justice concerns and their effects in their analysis for rulemaking. The executive order “relies entirely on internal enforcement, does not create a right to sue the government or allow for judicial remedies when agencies fail to comply with the executive order . . . [resulting] in a major weakness of the executive order . . . [which] is possibly the principal reason it has not had a greater impact.”An amendment to the text of the environmental review statutes requiring this kind of exclusionary analysis would have a stronger impact, especially in states like California and New York, where state-level Environmental Policy Acts require mitigation of significant environmental effects. That said, an architectural exclusion analysis with a mitigation obligation might make infill development even more difficult than it already is; there is a risk that such a requirement could be used defensively by opportunistic opponents who want to avoid change (which might result in further entrenching an exclusive status quo)
D. An Architectural Inclusion Version of the Americans with Disabilities Act
In considering the legal regulation of exclusion, it is useful to make a comparison to the disability rights movement, which “pointed out the countless ways in which machines, instruments, and structures of common use—buses, buildings, sidewalks, plumbing fixtures, and so forth—made it impossible for many handicapped persons to move about freely, a condition that systematically excluded them from public life.” Indeed, the disability rights literature echoes many of the same concerns raised in this Article. For example, speaking of disabled individuals, Robin Paul Malloy stated, “in order to be a full participant in one’s community, one must be able to enjoy reasonable access to the spaces and places that make up civic life.” This reasoning should extend beyond access for individuals with disabilities to all individuals, including poor people and people of color.471 A statute like the Americans with Disabilities Act (ADA) aimed at architectural exclusion would seem to make sense: currently the ADA prohibits the construction of a separate entrance for disabled individuals,472 but the city of New York is allowing developers to construct apartment buildings with “poor doors”—a separate entrance for low-income tenants in mixed-income buildings.
Despite these similarities, there are important differences between the disability rights movement and the ideas behind architectural exclusion. First, there is general consensus that individuals with disabilities were excluded by infrastructure that resulted more from “long-standing neglect than from anyone’s active intention.” Indeed, the ADA does not require intent to find discrimination. This distinction between neglect and intent raises important questions. For example, why does it seem that the law is more protective in the context of neglect, which is less malicious? Or is it not so much the intent versus neglect distinction, but rather that the law cares more about disabled individuals than about racial minorities or poor people? Is this a function of who has a better ability to organize? Or is it because many white, wealthy people have disabled individuals in their own families? Second, many examples of architectural exclusion occur at a citywide, infrastructural scale, while much of the ADA’s work has resolved problems within individual buildings. Similarly, architectural exclusion and the barriers to access it entails are somewhat more amorphous than barriers to access for disabled individuals, and therefore perhaps harder to correct.
Finally, while the Court in Tennessee v. Lane found an enforceable right of access (in that case, access to the courthouse) accorded to a protected class (people with disabilities) under the ADA,476 architectural decisions often exclude poor people, who are not a protected class.
Despite these differences, adopting a similar remedial approach could be useful. The ADA requires both retrospective and prospective solutions to exclusionary environments. Generally, the ADA places the greatest burden on those building new construction, followed by those who are making alterations to existing structures.479 Existing structures that are not undergoing alterations are not completely grandfathered under the ADA; although a building owner or tenant is not required to bring a building up to ADA standards simply because she owns or occupies the building, she must remove accessibility barriers where doing so is “readily achievable.” A similar approach could be used in the context of architectural exclusion. However, it is important to note that there is widespread non-compliance with the retrofitting provisions of the ADA. As a result, the ultimate success of an architectural exclusion statute with regard to legacy issues, as opposed to just new developments, is unclear.
Viewing the built environment through a regulatory lens, one may begin to see the world differently. A bridge does not exist merely to transport pedestrians or motorists across a body of water or over a road, but also to deposit those pedestrians and motorists into certain areas and not others. If a law were to require certain individuals to take one exit but not another, we might question its intent or its legality, but if a decision-maker creates an architectural feature that has the same effect, it is often viewed as innocuous. This Article seeks to raise awareness and foster discussion about the regulatory nature of architecture and its role in dividing (or, more positively, bringing together) people within and across communities. Just as educational campaigns have been used to shift norms, this Article aims to expand the way that citizens, courts, legislators, administrators, and legal scholars consider regulation through architecture.
Once the issue of architectural exclusion is brought to a person’s attention, she will see it in her own community and can begin taking action to fight against its effects in the future. Zoning ordinances that explicitly divided cities along racial lines were struck down many years ago, but walls and roads continue to divide cities along racial lines. Are these any less pernicious?