Architectural exclusion: discrimination and segregation through physical design of the built environment.

• Author: Schindler, Sarah
• Position: Introduction through III. A Brief History of Exclusion by Law (and Norms

INTRODUCTION I. ARCHITECTURAL EXCLUSION: THEORY A. Architecture as Regulation B. Architecture as Architecture in Legal Scholarship: Racialized Space and Place, Briefly II. ARCHITECTURAL EXCLUSION: PRACTICE A. Physical Barriers to Access B. Transit 1. Placement of Transit Stops 2. Placement of Highway Routes, Bridge Exits, and Road Infrastructure 3. Wayfinding: One-Way Streets, Dead-End Streets, Curvy Streets, and Confusing Signage 4. Residential Parking Permits III. A BRIEF HISTORY OF EXCLUSION BY LAW (AND NORMS) A. Legal Regulation that Furthered Exclusion 1. Judicial Disapproval a. Racial Zoning b. Racially Restrictive Covenants 2. Judicial Ambivalence: Exclusionary Zoning B. Social Norms That Furthered Exclusion: Sundown Towns, "White Terrorism," and Threats To Keep the "Other" Out C. A Clarification: Legal Exclusion Versus Architectural Exclusion IV. ARCHITECTURAL EXCLUSION IN THE COURTS: A LACK OF ATTENTION AND SUCCESS A. A Failure To Recognize Architecture as Regulation B. The Jurisprudence of Exclusion Fails To Account for Architecture 1. Claims: Laws That Could Be Used To Challenge Architectural Exclusion 2. Holdings: Application of Relevant Law to Architectural Exclusion V. PROBLEMS AND SOLUTIONS A. Legacy Problems and the Enduring Nature of Architecture B. Proposed Solutions: Courts and Legislators 1. Judicial Solutions Are Unlikely To Be Successful 2. Legislative Solutions Carry Some Promise C. An Architectural Bent on an Environmental Impact Statement D. An Architectural Inclusion Version of the Americans with Disabilities Act CONCLUSION INTRODUCTION

Robert Moses was known as the "Master Builder" of New York. (1) During the time that he was appointed to a number of important state and local offices, (2) he shaped much of New York's infrastructure, including a number of "low-hanging overpasses" on the Long Island parkways that led to Jones Beach. (3) According to his biographer, Moses directed that these overpasses be built intentionally low so that buses could not pass under them. (4) This design decision meant that many people of color and poor people, who most often relied on public transportation, lacked access to the lauded public park at Jones Beach. (5)

Although the Atlanta, Georgia, metropolitan area is known for its carcentric, sprawling development patterns, it has a subway system: the Metropolitan Atlanta Regional Transit Authority (MARTA). (6) Wealthy, mostly white residents of the northern Atlanta suburbs have vocally opposed efforts to expand MARTA into their neighborhoods for the reason that doing so would give people of color easy access to suburban communities. (7) The lack of public-transit connections to areas north of the city makes it difficult for those who rely on transit--primarily the poor and people of color--to access job opportunities located in those suburbs. (8)

At the request of white residents, in 1974 the city of Memphis closed off a street that connected an all-white neighborhood to a primarily black one. (9) Supporters of this measure argued that it would ostensibly reduce traffic and noise, in addition to promoting safety. (10) The U.S. Supreme Court dismissed a challenge to this action, stating that the road closure was just a "routine burden of citizenship" and a "slight inconvenience." (11) Justice Marshall dissented, acknowledging that this inconvenience carried a "powerful symbolic message." (12) He wrote, "The picture that emerges from a more careful review of the record is one of a white community, disgruntled over sharing its street with Negroes, talcing legal measures to keep out the 'undesirable traffic,' and of a city, heedless of the harm to its Negro citizens, acquiescing in the plan." (13) He believed that through this action, the city was sending a clear message to its black residents, (14) and he could not understand why the Court could not see that message.

Why have the Court, judges, and lawmakers--the entities usually tasked with crafting and enforcing antidiscrimination law--failed to find fault with these sorts of physical acts of exclusion? The most straightforward reason is that it is difficult to show the necessary intent to discriminate, especially in situations involving land use and the built environment. (15) This Article, however, suggests an additional reason--specifically, that those entities often fail to recognize urban design as a form of regulation at all. Scholarship on urban planning, which describes the history of city-building, is rife with tales of physical exclusion. (16) And although the law has addressed the exclusionary impacts of zoning ordinances and restrictive covenants, courts, legislatures, and most legal scholars have paid little attention to the use of less obvious exclusionary urban design tactics. Street grid design, one-way streets, the absence of sidewalks and crosswalks, the location of highways and transit stops, and even residential parking permit requirements can shape the demographics of a city and isolate a neighborhood from those surrounding it, often intentionally. Decisions about infrastructure shape more than just the physical city; those decisions also influence the way that residents and visitors experience the city. (17)

This Article examines the sometimes subtle ways that the built environment has been used to keep certain segments of the population--typically poor people and people of color--separate from others. Further, it considers the ways in which the law views and treats the exclusionary effects of these seemingly innocuous features of the built environment--which the Article terms "architectural exclusion"--as compared to more traditional and more obvious exclusionary practices. Although exclusion is perhaps the most important stick in the bundle of property rights, and although certain forms of exclusion can have beneficial results, (18) this Article focuses on forms of exclusion that result in discriminatory treatment of those who are excluded. This Article builds on Lawrence Lessig's regulatory theory, which asserts that behavior may be regulated or constrained, in part, by "architecture." (19) Lessig broadly defined architecture as "the physical world as we find it, even if 'as we find it' is simply how it has already been made." (20) The Article also employs the term "architecture" quite broadly to encompass civil engineering, city planning, urban design, and transit routing. The decisions of those who work in these varied fields result in infrastructure that shapes the built environment. The resulting infrastructure is included in this broad definition of architecture and functions as a form of regulation through architecture. (21)

Part I provides a theoretical framework for analysis by focusing on the way that the built environment controls or regulates our behavior. It examines the literature that discusses infrastructure placement and design as physical and symbolic contributors to economic and social inequality, exclusion, and isolation. While these concepts are foundational to planners and architects, only a small number of legal scholars--including Lessig--have begun to consider the built environment's regulatory role. Regulation through architecture is just as powerful as law, but it is less explicit, less identifiable, and less familiar to courts, legislators, and the general public. Architectural regulation is powerful in part because it is unseen; it "allows government to shape our actions without our perceiving that our experience has been deliberately shaped." (22) This hidden power suggests that lawmakers and judges should be especially diligent in analyzing the exclusionary impacts of architecture, but research demonstrates that they often give these impacts little to no consideration. (23)

Part II considers the practice of architectural exclusion. It details a number of ways that municipalities--through actions by their residents, their police forces, or their local elected officials--have created infrastructure and designed their built environs to restrict passage through and access to certain areas of the community. Such devices include physical barriers to access--low bridges, road closings, and the construction of walls--as well as the placement of transit stops, highway routes, one-way streets, and parking-by-permit-only requirements.

In Part III, the Article considers the way that courts have analyzed exclusion through traditional land-use methods. Unlike architectural exclusion, these traditional methods of exclusion are of central concern to modern law, in part because lawmakers and legal analysis tend to focus on regulation through law and norms. This Part provides context by briefly discussing the history of overt physical exclusion by law in the United States. It examines the laws and norms that led to racial and socioeconomic exclusion from certain parts of a given community, and it surveys judicial and legislative treatment of those traditional forms of legal regulation, including racially restrictive covenants, racial zoning, and exclusionary zoning.

Part IV continues a discussion of exclusion in the courts, but more specifically considers the application of existing legal constraints--including the Equal Protection Clause and the Civil Rights Act of 1866--to architectural exclusion. It provides examples of a small number of court cases that involve architectural exclusion and finds that even if legal decision makers were to take account of architecture as a form of regulation, our current jurisprudence appears inadequate for addressing exclusion that results from design.

The Article concludes in Part V by recognizing that architectural decisions are enduring and hard to change. While outdated laws are often overturned when the norms informing them have sufficiently evolved, our exclusionary built environment, which was created in the past, continues to regulate in the present. Judicial and legislative solutions could alleviate, at...