Michelle Wilde Anderson

Sprawl’s Shepherd: The Rural County

On the far side of World War II, America commenced a revolution in land use. Between 1945 and 1960, something in the order of ten million single-family homes were constructed in suburban subdivisions on land at the urban fringe and in rural areas that was unincorporated prior to, if not after, its development. If counties had exercised stronger land use control over these areas, might our development patterns have turned out differently? What do we know of land use planning by counties, and what role did that legal development play in twentieth-century urban sprawl?Our information about county land use planning is limited, but based on available research, this Essay argues that counties played an important role in passively enabling, if not actively courting, suburban development on greenfield sites. Counties were, in short, sprawl’s shepherd. Other factors — like housing need, housing costs, consumer preferences, racial discrimination, lending practices, and government subsidization of mortgages and transportation networks — generated suburban development proposals, but the nature of county land use authority and engagement led those projects to rural pastures.This Essay uses the occasion of the one-hundredth anniversary of the California Law Review to consider these questions. It uses a 1938 article published in the journal to glimpse early ideas on rural and county land use control and to provide an initial assessment of how far county land use planning has come, or failed to come, in the decades since.

Colorblind Segregation: Equal Protection as a Bar to Neighborhood Integration

For ten years in the 1960s and 70s, not one dollar was spent on maintenance or modernization of a sprawling public housing project of 3,500 units known as West Dallas. The Dallas Housing Authority had lost all federal revenue for refusing to comply with federal fair housing laws - public housing in the city was segregated by race, and nearly every occupant in West Dallas was black. By the end of that period, West Dallas residents were five times more likely to be murdered than elsewhere in the city.Intervening in this human tragedy and political controversy in 1989, a federal district judge ordered local officials to take affirmative steps to remedy their pattern of housing segregation. Among those steps, the court ordered construction of small-scale housing in white, low-poverty neighborhoods. In 1999, in Walker v. City of Mesquite, Texas (“Walker V”), a case challenging the constitutionality of the district court’s race-conscious remedial order, the Fifth Circuit upheld the Fourteenth Amendment reverse discrimination claim of white homeowners near a Dallas site proposed for a forty-unit public housing development. Walker V was not alone in bringing reverse discrimination claims into the realm of residential desegregation - a challenge to race-conscious court orders had also arisen in the Yonkers litigation battle in the Second Circuit. Notwithstanding the fact that a majority of the Supreme Court refused to follow the Fifth Circuit’s equal protection jurisprudence in Grutter v. Bollinger, and in spite of a 1976 Court decision upholding race-conscious remedies to housing segregation in Chicago, Walker V cast a long shadow in equal protection jurisprudence. The decision charted a new direction in colorblindness doctrine: restraint of courts’ remedial power to redress constitutional violations involving race. That doctrinal development interacts with current housing policies to prevent meaningful ways for public housing authorities to use race-neutral means to overcome their past role in enforcing racial segregation. Together, this confluence of doctrine and policy might be called colorblind segregation jurisprudence: a framework in which court ordered remedies for unconstitutional segregation and housing discrimination must be race-neutral, thereby preserving existing patterns of neighborhood advantage polarized by race. This Comment uses Walker V as a case study to explore the meaning and potential consequences of a colorblind segregation regime. Underlying this inquiry into colorblind segregation jurisprudence lurks a question at the heart of the Second Reconstruction: When a state actor is found liable for implementing an explicit program of unconstitutional racial segregation, how far must a court go towards dismantling the entrenched edifice of urban scale racial divisions? How far can they go?