Zoning's Racist Roots Still Bear Fruit

The long, shameful legacy of state-sanctioned discrimination.

"Blacks," said Mayor Barry Mahool, "should be quarantined in isolated slums in order to reduce the incidents of civil disturbance, to prevent the spread of communicable disease into the nearby White neighborhoods, and to protect property values among the White majority."

Mahool was the mayor of Baltimore who, in 1910, signed into law a racial zoning ordinance. According to Christopher Silver's The Racial Origins of Zoning in American Cities, he was also "a nationally recognized member of the 'social justice' wing of the Progressive movement."

The cities employing racial zoning included many Southern ones: Norfolk, Atlanta, Louisville, Birmingham, and more. But they were not limited to the South: Chicago practiced a form of racial zoning, too. San Francisco and other California cities used it to keep Chinese laundries in their place.

Yet the ball really got rolling in Richmond, where a 1911 zoning ordinance made it illegal to sell a house on a majority-white block to a black person, or a house on a majority-black block to a white person.

Even back then, the only color that some people cared about was green. The ordinance was challenged by whites and blacks who wanted to do business with one another. In 1915 it was upheld. "There is no discrimination between the races," a Richmond court ruled in Hopkins v. City of Richmond, because the law applied to blacks and whites alike. What's more, the ordinances were written "to do a public good" by keeping "one race from encroaching upon the other. The ordinances are intended to protect each race from harm from the other."

That justification held for two years, until the Supreme Court struck down racial zoning in Buchanan v. Warley '" a case George Mason University law professor David Bernstein has called "one of the most significant civil rights cases decided before the modern civil rights era." As he wrote at SCOTUSblog back in 2004, the "right at issue" was the "civil right" of property '" a right enjoyed equally by both whites and blacks: "?'Colored persons,' Justice [William R.] Day wrote for the court, 'are citizens of the United States and have the right to purchase property and enjoy and use the same without laws discriminating against them solely on account of color.'?"

Regrettably, the highest court did not get the last word. No longer able to enforce explicitly racial zoning regulations, many cities used "expulsive" zoning to the same effect, by putting factories in certain neighborhoods to drive blacks out.

They also used other, indirect methods '" such as housing betterment. According to Silver, "Richmond's reform movement produced its own catalog of housing horrors when the Society for the Betterment of Housing Conditions published [a] graphic depiction of the city's dilapidated black neighborhoods. [The] report made no direct reference to racial zoning as a remedial action but, instead, concentrated on housing codes [and] building regulations."

Ancient history? Hardly. Progressivism likes to think of government as defending minorities from discrimination by private enterprise. But time and again, history has shown progressive ideas marching in lockstep with racist motives.

In 1954, the Supreme Court allowed the District of Columbia to use eminent domain to eradicate blight. The court's language was high-toned: "The concept of the public welfare is broad and inclusive," it ruled. "The values it represents are spiritual as well as physical, aesthetic as well as monetary." The victims, however, shared mostly skin tone: The "urban renewal" district to be bulldozed was 97.5 percent black.

In the 2005 eminent domain case Kelo v. New London, the Supreme Court allowed government to seize private property for someone else's ostensibly higher use '" condemnation in the name of social progress. Dissenting Justice Sandra Day O'Connor warned that "the fallout from this decision will not be random." She was right. An Institute for Justice study of 184 eminent domain cases occurring since the 2005 decision in Kelo v. New London found condemnation was used disproportionately against minority property holders.

Another study, in 2009, found "a strong and significant … relationship" between low-density zoning policies and racial segregation. Yet another paper, published last year, found that "over half the difference between levels of segregation in the stringently zoned Boston and lightly zoned Houston metro areas can be explained by zoning regulation alone."

That would not be news to the Bukharian Jews of New York '" immigrants from Central Asia whose voluble architectural tastes offend the more subdued sensibilities of their neighbors in Queens. As Melinda Katz, head of the New York City Council's land-use committee, complained in 2008, the houses in the area "have a specific aesthetic character" and "a lot of the houses that are [now] going up there are just simply too big. … They are out of character." Oh, gracious.

To Boris Kandov, head of a Bukharian association, the issue looked rather different: "Why are we in America? Because we're dreaming of this freedom! We were dreaming to build big house!" (New York to immigrants: Dream on.)

Related concerns are now raising hackles in Fairfax County. On Sunday, The Washington Post reported that longtime residents of some neighborhoods have taken to calling or emailing the county's code-enforcement division with complaints about too many cars in certain driveways and too many people in certain houses. By an amazing coincidence, the objects of the complaints are always immigrants '" usually large Asian or Hispanic families. As Tim Cavanaugh observed in Reason three years ago, the attraction of urban planning is that it "allows discrimination but dresses it up as discriminating taste."

But to the complainers, the issue isn't race or ethnicity '" it's "quality of life." You can't have a bunch of people sharing a house, fixing cars in the yard and so on. It's out of character with the neighborhood. It causes tensions and creates civil disturbance. And it's bad for property values. There's no discrimination in simply wanting the rules enforced, right?

Baltimore's Barry Mahool would certainly agree.