Abstract

Excerpted From: Jade A. Craig, “Pigs in the Parlor”: The Legacy of Racial Zoning and the Challenge of Affirmatively Furthering Fair Housing in the South, 40 Mississippi College Law Review 5 (2022) (579 Footnotes) (Full Document)

In Village of Euclid, Ohio v. Ambler Realty Co., the U.S. Supreme Court held that zoning was constitutional and fell within a local government's traditional police power. Justice Sutherland, writing for the majority, described zoning as a mechanism to control “the right thing in the wrong place, like a pig in the parlor instead of the barnyard.” This Article suggests that, within this metaphor, land use law has often regarded African Americans in particular as proverbial “pigs.” African Americans were, metaphorically, “right things.” Efforts to remove black people and their racialized cultural practices have avoided the presumption that black people do not have a right to exist. Indeed, the earliest cases in which white plaintiffs in southern and border U.S. states attempted to enjoin or remove blackness from their presence under the common law doctrine of nuisance generally failed. Even today, in the firestorm of incidents known by the online handle #LivingWhileBlack, in which white individuals have enlisted law enforcement to remove blacks from their presence, the claim is generally not that the black individual is taking up space in a place where he does not have a legal right to be. Instead, they are “the right thing[s] in the wrong place[s].”

The racial zoning movement that began in early twentieth century America sought to place blacks “in the barnyard and out of the living room.” It was the South's version of “institutionalizing the common law of nuisance.” The problem, however, is that African Americans are not pigs; they are people. Under the logic of racial segregation, however, African Americans were treated as “subpersons,” and zoning law governed them according to this cruel designation. Racial zoning designated land for occupancy by black residents to the exclusion of occupancy anywhere outside of these defined areas in a given town or city. These areas became the “barnyards” to which cities relegated African Americans while traditional single-family, single-use residential districts--the “parlors” of both a racial zoning ordinance and the general zoning ordinances that followed--were reserved for wealthy or upper class whites.

City officials were indeed not good stewards of these barnyards. They often selected locations for black residential districts in the least desirable parts of urban areas. They provided these areas with the least amount of protection from commercial and industrial uses that were inconsistent with a residential community. They then took advantage of the spatial segregation to locate locally undesirable land uses (“LULUs”) in and around these communities. Over decades, these factors threatened to turn these communities into metaphorical pigsties--over the constant resistance of black residents who built their lives in them.

This Article argues that these practices serve to attach a racialized identity to space and render it “black” space. John Dubin has explicated the practice of failing to use zoning laws to protect black communities from harmful commercial and industrial uses. Likewise, urban planning scholar Yale Rabin has characterized the practice of disproportionately filling areas in and around majority black communities with undesirable land uses as “expulsive zoning.” While the literature has often focused on efforts to maintain white spatial exclusivity and the privileging of white space, the process of inscribing black residential areas with features that seek to render them undesirable spaces of disadvantage has received less attention. Just as city leaders selected locations for white communities in the most desirable sections of a city and used land use law to protect from undesirable land uses, they often assigned African Americans to the least desirable areas of town. They refused to protect black communities with zoning laws and made them available to host undesirable but necessary local land uses like landfills and factories, over and above their fair share and to the benefit of white communities.

The legacy of racial zoning is not merely a past-to-present link limited to those cities that once had racial zoning ordinances and the geography of segregation just in those cities today. Rather, the true legacy of racial zoning is two-fold. First, it is the logic that informed the reasons for their initial adoption and the ways in which this logic carried over into how cities implemented and enforced (or refused to enforce) general zoning ordinances after explicit racial zoning became impermissible. Second, racial zoning is a metaphor. One might think of today's hypersegregated majority-black communities (or communities of color more broadly) as areas that local governments have approached with a racial zoning logic. In other words, these neighborhoods have been “racially zoned” simply by another name as a result of the enforcement or lack thereof of the traditional zoning regime.

This Article focuses on the South, where racial zoning became the predominant method for ensuring racial segregation in housing and excluding African Americans from white communities. It is important to examine this region more closely for several reasons. Social scientists have acknowledged that racial segregation in housing that revolves around which groups live on high ground or low-lying areas likely takes place across the United States. The South is unique, however, because of its history of slavery, the high population of African Americans, and the fraught political climate which is heavily polarized along racial lines. Small towns and rural areas are also spaces that generally escape close study in fair housing legal scholarship. While the U.S. Supreme Court struck down the practice of racial zoning in 1917 in Buchanan v. Warley, the practice continued for many decades thereafter either directly or in thinly veiled forms at least in part because of the “historical durability and unique character of southern race relationships.”

This Article treats racial zoning as more than a tragic moment in time that ended with the court decisions striking it down. Instead, it examines the legacy of racial zoning. This legacy includes the blueprint for racial segregation that these ordinances created and the segregated living patterns that remain as a result. It also includes the groundwork that these ordinances laid which informed land use policy toward black communities going forward even after high courts formally stripped local governments of the authority to pass such ordinances.

This focus on the South is important because space and racial hierarchy often interacted differently in this region than they did in other parts of the country. A twentieth century African American saying encapsulates the difference: “The South doesn't care how close a Negro gets, just so he doesn't get too high; the North doesn't care how high he gets, just so he doesn't get too close.” This folk wisdom draws on the experience of African American migrants who left racially zoned towns to find freedom in the North during the Great Migration and civil rights leaders who took the Southern organizing campaign northward. For northern U.S. cities, geographic separation between the races played a crucial role in excluding African Americans from the institutional forms of power and resources amassed by whites in majority-white areas. By contrast, African Americans and whites in the South historically lived in close proximity to one another. Thus, the early efforts at establishing white supremacy and racial hierarchy began by designating space for blacks, sometimes with only railroad tracks as barriers (rather than the long highways that emerged shortly after the second wave of the Great Migration to the North). This restricted space became the site of multiple markers of inferiority that reinforced the deprivation of access to institutions and resources allotted to whites under JimCrow. This Articles focuses on three: (1) the location of black communities in the least desirable areas; (2) the refusal to provide protective zoning; and (3) the disproportionate siting of LULUs in or near African American neighborhoods.

Part II explicates the rise of the racial zoning movement and the court cases that led to its demise. The reasoning in these decisions establishes that racial justice was rarely even a consideration at all, much less a primary consideration, in striking down racial zoning ordinances. Courts instead focused on the unconstitutional limits placed on the transfer of private property between persons. Thus, the cases left the door open for jurisdictions to apply general zoning ordinances, which the Court upheld in Euclid, to achieve the segregative and racist objectives of the original racial zoning ordinances.

Part III examines the legacy of racial zoning through three phenomena: (1) the designating of locations for black communities; (2) the lack of protective zoning given to black residential areas; and (3) the disproportionate siting of LULUs in these areas. In each case, a barely broken line of racist policy decisions starts from racial zoning and continue to impact communities today. These repercussions go unaddressed in the focus on individual acts of housing discrimination under federal and state fair housing laws and debates about the construction of affordable housing. The legacy of racial zoning calls into question the focus on discrimination in access to housing rather than discrimination in remedying the quality and character of the community in which housing in majority-black communities is located. These phenomena are housing problems, not merely land use problems.

Finally, Part IV examines whether the federal Fair Housing Act (FHA) can remediate this legacy through policy or litigation. In other words, can the FHA treat these issues as housing law issues? The Article argues that the case law involving challenges to the discriminatory provision of municipal services under the Act exposes how courts narrowly confine the relationship between housing and its relationship to the discriminatory zoning and land use policies that characterize the legacy of racial zoning. I join the ranks of scholars who propose litigation strategies that attempt to broaden the reach of the FHA, but highlight the challenge that the precedent poses for the issues arising from the logic of racial zoning that still governs black residential areas today.

In light of these challenges, I turn toward the provision of the FHA which requires all recipients of federal funding to “affirmatively further” the goals of the FHA (“AFFH” or “affirmatively further fair housing”) and the opportunities that it presents to engage with these limitations. I also examine the rule implementing the AFFH mandate that HUD adopted in 2015. I argue that the AFFH mandate and the Rule provides a necessary legal basis for requiring policy-based solutions to the legacy of racial zoning in the South. The process of implementing and overseeing the Rule in most parts of the South, however, fails to capture the contexts most in need of reform. I propose requiring a more focused examination of the relationship between racial and ethnic concentrations of poverty and historic discrimination in zoning and land use policy that challenges jurisdictions to adopt plans to use federal funding to remedy those disparities. The legacy of racial zoning calls for examining a method for denying equal housing opportunities to African Americans that predominated in a certain part of the United States and how it should inform the goals that cities set in their efforts to meet their fair housing obligations.

[. . .]

Advocates of racial zoning in the early twentieth century used policy to promote white supremacy. They conceptualized blacks as nuisances meant to be managed. As a result, they decided to apply zoning to exclude blacks from white spaces to whatever extent they might be allowed. Racial zoning sought to contain and separate blacks as nuisances. After explicit racial zoning had fallen out of favor, governments zoned commercial and industrial uses within black residential areas. These zoning decisions reinforce the conception of blacks as nuisance. As a result, black communities bore the brunt of the downsides of the city's economic development. Essentially, governments loaded nuisances on top of each other--blacks, factories, and highways were all treated the same: “pigs in a parlor instead of the barnyard.” They served the interests of whites at certain times, but they were left sectioned off and separate from white lives because they were hazards or inconveniences. This approach led to the building of warehouses rather than communities--places with significant disincentives to affordable housing.

However, just as zoning was used to construct the problem, it can be used to remedy it. Inclusionary zoning and mixed-income housing can provide access to affordable homes both within and outside of current majority-black communities in the South. No longer must black residents remain the “pigs in the parlor”; the promise of zoning in Euclid to promote viable communities, even after decades of racist manipulation, can be a reality.

Assistant Professor of Law, Nova Southeastern University Shepard Broad College of Law. J.D., Columbia Law School. B.A., University of Virginia.