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

Author:Schindler, Sarah
Position:III. A Brief History of Exclusion by Law (and Norms
  1. 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. (226) 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. (227) Sometimes forms of exclusionary zoning are less well-known yet have the same effect--for example, prohibiting people fro2062m 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. (228)

    Those supporting exclusionary zoning practices are often purportedly motivated by the desire to preserve property values, (229) but sometimes their motivations do not seem all that different from the more nefarious ones that were set forth in support of racial zoning. (230) 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. (231) 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." (232)

    Although many legal scholars have critiqued the practice of exclusionary zoning, (233) 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. (235) It is hard to see how standard federal constitutional arguments would work in the context of exclusionary zoning, (236) especially because housing is not a fundamental right, (237) wealth is not a suspect classification, (238) and the Court has suggested that zoning restrictions do not interfere with the fundamental right to travel. (239) 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. (240) To the extent the Supreme Court has spoken to the issue of exclusionary zoning, it has made constitutional challenges to exclusionary ordinances quite difficult. (241) The Court held in Village of Arlington Heights v. Metropolitan Housing Development Corp, (242) 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. (243) Since Washington v. Davis, (244) 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; (245) proving that infrastructure decisions were made with the intent to discriminate is even more unlikely. (246) Indeed, in Memphis v. Greene, (247) which was decided shortly after Arlington Heights, the Court was unwilling to find evidence of discriminatory intent in the face of clear disparate impact. (248)

    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, (250) the Supreme Court upheld an exclusionary zoning ordinance after applying rational basis review. (251) It will always be difficult for a plaintiff to overcome rational basis review. (252) 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; (253) it is not difficult to find legitimate, rational justifications--typically relating to health, safety, or welfare --for most zoning ordinances. (254)

    While no state has forbidden exclusionary zoning via statute, (255) some state courts have placed limitations on it. (256) An especially well-known and far-reaching 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). (257) In that case and its successor, (258) the court invalidated exclusionary zoning practices based on the general welfare provision in the state constitution. (259) 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. (260) 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. (261) Of note, although the plaintiffs pled both race and economic discrimination, the court based its opinion on the economic grounds alone. (262)

    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. (264) 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. (265) 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 (266)--but not so when considering other "less obvious forms of discrimination"--including (to some extent) exclusionary zoning and architectural exclusion. (267) 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. (268)

    1. 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 (269): "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." (270) These norms existed before their exclusionary legal counterparts, (271) 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." (272)

      The book Sundown Towns identifies large numbers of ordinances and customs that purportedly made it illegal for African Americans to live in certain communities. (273) 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. (274) 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." (275) 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. (276) 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.

    2. A Clarification: Legal Exclusion Versus Architectural Exclusion

      Before moving on to an analysis of...

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