Tuesday, July 13, 2021

Land Use, Human Health, and Equity Project, Post 16: Segregation by Law and the Racial Inequity Pandemic

Elisabeth Haub Law School of Law
Pace University
Land Use Law Center
Supervisor: John R. Nolon, Distinguished Professor
Blog No. 16 of the Land Use, Human Health, and Equity Project
Editor: Brooke Mercaldi
Contributing Author: William West [*]

Segregation by Law and the Racial Inequity Pandemic

This post is an introduction to the role of land use and government finance in creating racially segregated neighborhoods. These practices greatly exacerbated the state of racial inequity in America, one of the four pandemics that the Land Use Law Center is addressing in its Land Use, Human Health, and Equity Project. We define racial inequity as a pandemic because of its nation-wide presence and its significant negative effects on public health. Because of its magnitude and pervasiveness, racial inequity cannot be solved by any one approach. However, land use is a particularly appropriate strategy for reversing racial inequity because land use practices played an active role in segregating America.  

In 1910, the first racial zoning ordinance was enacted in Baltimore, Maryland. The ordinance prohibited African Americans from buying homes in neighborhoods that were majority white. The mayor at the time stated, “Blacks should be quarantined in isolated slums in order to reduce the incidence of civil disturbance, to prevent the spread of communicable disease into the nearby White neighborhoods, and to protect property values among the White majority.” Many other cities followed this example.

Seven years later, in 1917, the United States Supreme Court held that a similar Louisville, Kentucky racial zoning ordinance was unconstitutional in Buchanan v. Warley. This holding, however, did not address the equal protection rights of minorities. Rather, the Court found that the ordinance violated the Due Process clause because it restricted white property owners’ right to sell their homes.

Nonetheless, urban planners continued to pursue race-based planning strategies that avoided the Buchanan decision. After Robert Whitten explicitly included racial zoning in his 1922 Atlanta zoning plan, the City Planning Commission defended the plan, stating, “race zoning is essential in the interest of the public peace, order and security and will promote the welfare and prosperity of both the white and colored race.” This attempted denial of Buchanan was no surprise as President Hoover’s 1921 Zoning Advisory Committee included Alfred Bettman and Frederick Law Olmstead Jr., who were known segregationists. The model zoning law that the committee created reflected their sentiment that racial divisions were “necessary to maintain the nation and the race.”

Exclusionary and expulsive zoning practices included zoning exclusively for single-family homes restricted by racially restrictive covenants. The restrictive covenants that made these segregated neighborhoods possible prohibited occupancy by races for which the zones were not intended and were upheld by the Supreme Court in 1926 in Corrigan v. Buckley. Single-family zoning districts also prevented future construction of multi-family buildings, financially excluding black families who could afford multifamily rents but not single-family homes. The same year restrictive covenants were upheld, the Supreme Court rejected a challenge against the separation of uses by zoning regulations in Euclid v. Ambler Realty Co. writing, “Very often the apartment house is a mere parasite.”  

In the 1930s, the Federal Housing Administration (FHA) mortgage insurance eligibility standards favored these single-family zoned properties with racial deed restrictions, implicating local land use practices in national financial assistance. The FHA Underwriting Manual from 1938 states that restrictive covenants should include “prohibition[s] of the occupancy of properties except by the race for which they are intended.” In 1948, the Supreme Court overturned Corrigan v. Buckley holding that restrictive covenants may not be enforced by state court order under the equal protection clause of the 14th Amendment in Shelley v. Kramer. The Court did not hold that restrictive covenants violated any rights; only the enforcement of the covenants by state courts was unconstitutional. They continued to exist, casting a pall over the sale of the restricted parcels to minorities and continuing the segregation of the single-family zoned neighborhoods.

Segregated suburbanization was an explicit federal government policy that created generational wealth gaps between races. This support for segregation "is largely responsible for the fact that while the median family income of African Americans is now about 60 percent of whites’ income, the median household wealth of African Americans is only about 5 percent of whites’ wealth.”

At the same time as exclusionary suburbanization, newly developed urban housing further segregated America. In many places, the New Deal’s Public Works Administration segregated public housing in places that it previously did not exist. Urban renewal, implemented by municipal agencies and funded by federal dollars, permitted the demolition of buildings in neighborhoods that were “blighted” without adequate plans to accommodate displaced peoples.

Any short history of racist land use policy in America will inevitably be incomplete, as it is here. This history, however, indicates why a response at the local level is warranted. What was done by local zoning in the name of segregation can logically be undone by the reform of local zoning. Today’s increased sensitivity to the adverse consequences of racial inequity is fostering many local land use efforts to mitigate discriminatory zoning’s effects and prevent its continuation. Blogs and case studies prepared by the Land Use Law Center will describe a number of such initiatives in the hope of encouraging more localities to undo land use law’s negative effects – to mitigate the segregation it helped to cause. See, for example, these blogs on urban heat islands.

For additional resources, the Gaining Ground Information Database is a free resource featuring best practice models used by governments to control the use of land in the public interest. Please direct your search toward the Healthy Communities topic.

[*] William West is a second-year student at the Elisabeth Haub School of Law and Student Associate at the Land Use Law Center.

Brooke Mercaldi is a second-year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.

The previous blogs in the series are listed here:

  1. Reframing Sustainability: Introducing the Land Use, Human Health, and Equity Project
  2. Planning for Public Health: A New Beginning for Land Use Law
  3. The Role of Density in Combatting Climate Change and COVID-19
  4. Novel Coronavirus Claims Implicate Age-Old Property Rights Questions
  5. State & Local COVID-related Emergency Powers: Individual Rights
  6. COVID-Related Land Use Regulations and Judicial Deference
  7. Mediation of Eviction Disputes May Hold the Key to the Survival of Small Businesses
  8. Using Zoning to Help Eliminate Food Deserts: A Few Steps Forward
  9. Urban Heat Islands and Equity
  10. Urban Heat Island and Equity: What Can Local Governments Do?
  11. The Recovery Lease: Preventing Evictions of Commercial Tenants During the Pandemic
  12. The Role of Hazard Mitigation Planning in Promoting Public Health and Resilience
  13. Hazard Mitigation Planning: A Case Study
  14. Complete Streets: Protecting Public Health
  15. Zoning and Lease Mediation as a Way to Retain Critical Small Businesses

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