Reading summary: Architectural Exclusion: Discrimination and Segregation Through Physical Design of the Built Environment.

This article written by Sarah Schindler, Associate Professor of Law, University of Maine, and published in the April 2015 Yale Law Journal contends that we presently have laws and regulations which prevent exclusion and discrimination in employment and housing, etc., but architectural designs are not presently adequately addressed by law or regulation.

Schindler acknowledges that the question of architectural decisions resulting in discrimination  has been researched in the fields of planning and urban design, but asserts that legal scholars have focused on architectural regulation mainly through laws such as restrictions on zoning laws (above photo) and restrictive covenants. (Section 1, A)   (Architecture regulation is broadly defined “to encompass civil engineering, city planning, urban design and transit routing”) (Introduction).   Focusing primarily on laws misses opportunities to reduce discrimination caused by architectural regulation, because architectural regulation “…is unseen: it allows government to shape our actions without our perceiving that our experience has been deliberately shaped (introduction). The article argues that “regulation through architecture is just as powerful as law and is less visible to courts, legislatures and potential plaintiffs (Section I, B).

An example of how the law community is overlooking architectural discrimination is the reference to a land-use law casebook with a chapter “Discriminatory land use controls”.  The chapter addressed discrimination tools of racially restricted covenants and exclusionary zoning. However, the chapter makes no mention of the discrimination caused by exclusion based on features of the built environment. (Section I, B ( (Example of built environment, a subset of architectural regulation, include: absence of sidewalks, bike pathways, one way streets, exits from highways diverting, traffic from more affluent neighborhoods and is a subset of the term Architecture regulation). (Section 1, B)

Architectural regulation dealing with the built environment is deemed to flawed as “… built environment does not fit with the definition of ‘regulation’ … it is not a rule promulgated by an administrative body after a notice-and-comment period.” (Section 1, A).  As such, architectural regulation is not subject to the rigorous debate generally associated with formation of a law and not a specific regulation subject to public comment and scrutiny that formal regulations e.g. zoning regulation.

Built environment decisions can be deliberately restrictive. One example is Robert Moses’s design of bridges in New York State. The bridges were designed (some argue deliberately) so that were low enough to prevent buses access to public parks and suburban communities. “One consequence was to limit access of racial minorities and low-income groups” who often used public transit… to Jones Beach, Moses’s widely acclaimed public park.” (II. A) Moses also vetoed the extension of the Long Island Railroad to Jones Beach for the same reason of limiting access.

Another example of overt architecture regulation with the intent to restrict is resistance to expansion of public transportation. “…wealthy white residents of suburban Atlanta, San Francisco, and Washington, D.C. have organized to oppose the location transit stops in their communities… because transit would enable people who live in poorer areas of the cities to easily access the wealthier areas.” (Section 2, B).

Politics come into play because the officials who make these decisions answer to their constituents. Schindler introduced “Fischel’s Homevoter Hypothesis” (William A. Fischel) “… homeowners are more likely than renters to vote and more likely to vote in ways that will protect their property investment…” (Section 1, B). In the case of public transit resistance, Fischel’s Homevoter hypothesis “empowers” local officials to make architectural decisions that are clearly discriminatory towards another group.

Another not so obvious example of architectural regulation decisions that are discriminatory is Elise C. Boddie’s argument that places have racial identities base on their history of or reputation for exclusion. As such “… the meaning of a place can allow those in charge, such as police officers, to determine who belongs in that place and who does not…” (Section 1, B).  Getting back to Schindler’s theme of law not addressing architectural regulations, Boodie points out “law overlooks the racial identifiability of spaces….” (Section 1, B)

In conclusion, I offer my own observation that the public is aware that architectural regulation decisions are commonplace.  The widely heard phrases “from the wrong side of the tracks” or, “zip code determines one’s destiny” are recognition that this concept is known an accepted. The elaboration by Schindler adds much detail and explanatory commentary to raise this issue more forcibly.