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.
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.
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 car-centric, 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. 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, taking 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?
current and forthcoming projects include radical affirmation, a summer camp for queer youth in utrecht, netherlands, as well as an archival excavation, symposium and exhibition of materials held by the schwules museum, berlin, whose extensive archives document lgbtq life and history.
asad received his bfa from the rhode island school of design and holds an mfa from the yale school of art.
In this way, the exclusionary built environment—the architecture of a place—functions as a form of regulation; it constrains the behavior of those who interact with it, often without their even realizing it.
This Article suggests that there are two primary reasons that we fail to consider discriminatory exclusion through architecture in the same way that we consider functionally similar exclusion through law.
Although the law has addressed the exclusionary impacts of racially restrictive covenants and zoning ordinances, most legal scholars, courts, and legislatures have given little attention to the use of these less obvious exclusionary urban design tactics.
Street grid layouts, one-way streets, the absence of sidewalks and crosswalks, and other design elements can shape the demographics of a city and isolate a neighborhood from those surrounding it.