A present-day example of architectural exclusion comes in the form of decisions about where to place transit stops. Throughout the United States, many moderate- and high-income individuals travel—to their jobs, to events, to see friends, and to shop—in a private vehicle.120 In contrast, although people of all socioeconomic groups use public transit—buses, subways, and light rail—in larger metropolitan areas, low-income people and people of color often rely more heavily on public transportation than people from other groups.121 Those individuals therefore have a hard time reaching areas that are underserved by transit.

Another divider was an approximately ten-foot-high, 1,500-foot-long fence that separated the racially diverse (though predominantly white) suburb of Hamden, Connecticut, from the primarily black public housing projects in New Haven.97 Although the fence was finally removed in May 2014, while it was in place, residents in the public housing were extremely isolated from the surrounding community.98 In order “to buy groceries at a Hamden shopping center three miles away,” the public housing residents would “have to travel into New Haven to get around the fence, a 7.7-mile trip that takes two buses and up to two hours to complete.”99 The fence was originally erected by the city of Hamden in the 1950s to keep crime in the New Haven projects out of Hamden.100 As recently as 2012, calls to remove the fence were met with resistance from Hamden residents who “described the robberies and traffic overflow they said would result from opening the fence.”101 Hamden agreed to remove the fence only after the New Haven Housing Authority threatened to “sue Hamden on civil rights grounds.”102 A similar eight-foot-tall spiked fence was installed in 1998 around a public housing project in Hollander Ridge in Baltimore.103 This fence, which was constructed by the local housing authority with funding from the Department of Housing and Urban Development (HUD), blocked access to and through Rosedale, a contiguous, mostly white neighborhood.104 The Rosedale residents wanted the fence to keep out crime and keep their property values up, and “there was a not insubstantial vocal segment of the Rosedale whose racist views were made readily apparent.”105

A municipality that lacks sufficient connections between different parts of the community is often exclusionary because residents are deterred from traveling. For example, sidewalks make walking easier and safer, in large part by reducing the risk of pedestrian and vehicle collisions.85 However, many communities lack sidewalks and crosswalks, making it difficult to cross the street or walk through a neighborhood. Sometimes this is intentional.86 For example, in his book detailing continuing racism and intentionally white communities in the United States, James Loewen describes architectural exclusion in some towns where “[s]idewalks and bike paths are rare and do not connect to those in other communities inhabited by residents of lower social and racial status.”87 If someone wanted to walk or bike to another area, then, it might have to be along the shoulder of a busy road or on the road itself.

The architecture of the built environment directs both physical movement through and access to places. This Part details a number of ways that states and municipalities—through actions by their residents, police force, planning staff, engineers, or local elected officials—have created infrastructure and designed their built environs to restrict passage through and access to other areas of the community. A number of specific exclusionary techniques have been used to keep people out, including physical barriers to access, the siting of transit and transportation infrastructure, and the organization of residential neighborhoods. While some of these designs expressly serve to exclude those who are unwanted, others have that effect indirectly. This Part will examine a number of these methods of exclusion. A. Physical Barriers to Access

Although regulation through architecture is just as powerful as law, it is less identifiable and less visible to courts, legislators, and potential plaintiffs.77 While this observation suggests that decision makers should be even more diligent in analyzing the impact of architecture, research demonstrates that they often fail to take it seriously.78 To be clear, officials may understand that an architectural decision could have an exclusionary effect—they might even intend that result—but they generally do not see their decisions as a form of regulation that should be analyzed and patrolled in the same way that a law with the same effect would be. Exclusion through architecture should be subject to scrutiny that is equal to that afforded to other methods of exclusion by law.79

they understand that traditional architects of the built environment influence our experience of the built environment.55 Traditional architecture is not just a useful metaphor for exposing hidden regulatory systems. It is regulation. Consequently, it makes even more sense to apply the concept of regulation through architecture to the built environment than it does to apply it to the Internet or structuring decisions.56 Although this may appear to be a banal observation, few in the legal community have discussed architecture itself as a regulatory tool.

For example, a cafeteria manager who places healthier food items in a more visible and accessible location than junk food in order to nudge people toward healthier choices is guiding actions through architectural decisions. These architectural decisions create architectural constraints: features of the built environment that function to control human behavior or hinder access—the embodiment of architectural exclusion.

That a highway divides two neighborhoods limits the extent to which the neighborhoods integrate. That a town has a square, easily accessible with a diversity of shops, increases the integration of residents in that town. That Paris has large boulevards limits the ability of revolutionaries to protest. That the Constitutional Court in Germany is in Karlsruhe, while the capital is in Berlin, limits the influence of one branch of government over the other. These constraints function in a way that shapes behavior. In this way, they too regulate.50

We often experience our physical environment without giving its features much thought. For example, one might think it a simple aesthetic design decision to create a park bench that is divided into three individual seats with armrests separating those seats. Yet the bench may have been created this way to prevent people—often homeless people—from lying down and taking naps.27 Similarly, upon seeing a bridge, or a one-way street, or a street sign, many people tend to think that these are just features of a place—innocuous and normal.