Dividing Lines: How Transportation Infrastructure Reinforces Racial Inequality
by Deborah N. Archer (2025)
Those who understand racism to be systemic and structural will readily appreciate this new book showing how structural racism came to manifest and perpetuate itself in America’s infrastructure. Aptly named Dividing Lines: How Transportation Infrastructure Reinforces Racial Inequality, this book describes how racism has shaped America’s transportation infrastructure – interstate highways drilling through Black urban neighborhoods, destroying homes, churches, and businesses; city streets and public bus routes designed to keep Black people out of neighborhoods; sidewalks never laid or left unusable so that members of Black communities are forced to walk in the streets.
The author, Deborah N. Archer, is Associate Dean for Experiential Education and Clinical Programs, the Margaret B. Hoppin Professor of Law, and Faculty Director of the Community Equity Initiative at New York University School of Law. She is also the President of the ACLU, the first person of color to lead that organization.
Archer’s own origin story sets the context for this account of how our transportation system perpetuates white supremacy. Her parents, immigrants from Jamaica who had graduated from segregated high schools in Hartford, Connecticut, were among the first Black families to move from the inner city to a modest home in the suburbs.
Moving gave us a sense of what opportunity looks like, and it brought us close enough to take advantage of it. I do not believe I would be where I am today if my family had not managed to leave Hartford for the suburbs. But traversing the boundaries that separate communities of disadvantage from communities of opportunity is difficult, and too few families find a way to make the journey.
Archer’s parents encountered homeowners and realtors who refused to show them houses. They faced threats and intimidation. Upon moving in, the family woke up one morning to find KKK spray-painted on their house and car.
Here is a summary of Archer’s book, supplemented with quotes from Supreme Court cases as well as links to two YouTube videos. This is merely a guide. Reading the whole text, which is replete with the narratives of individuals and particular cities, will take you to the human heart of the matter.
Highways Crashing Through NeighborhoodsThe Federal-Aid Highway Act of 1956, known as the Interstate Highway Act, the largest public works program of its time, allocated $25 billion for construction of 41,000 miles of interstates. Congress passed it two years after Brown v. Board of Education, months after the end of the Montgomery Bus Boycott, and weeks after more than one hundred Congressmen and Senators from Southern states signed the Southern Manifesto. By that document, these white men pledged to defend segregation by the use of “all lawful means to bring about a reversal of [Brown] which is contrary to the Constitution and to prevent the use of force in its implementation.” https://jimcrowmuseum.ferris.edu/question/2006/july.htm)
The Interstate Highway Act gave the states total control over the highways’ construction even though they were responsible for only the final 10 percent of the highways’ costs. States exercised that control to route roads through existing Black communities, as is obvious to anyone who has driven any urban highway system. Asher’s book illustrates this reality with case histories of how state and local agencies tracked existing racial boundaries to drive the new highways right through Black neighborhoods in Atlanta, Birmingham, Indianapolis, Miami, Des Moines, Washington, D.C., Syracuse, and St. Paul.
Belatedly, the government leaders acknowledged the federal role in creating urban poverty and racial segregation. In a 2016 “dear colleagues” letter, the secretaries of the Departments of Housing and Urban Development, Education, and Transportation wrote that “children raised in concentrated poverty or in communities segregated by socioeconomic status or race or ethnicity have significantly lower social and economic mobility than those growing up in integrated communities.” Moreover, the situation is worsening. The letter states that “rising economic segregation means that an increasing number of low-income households are located in distressed neighborhoods where they face challenges such as failing schools, high rates of crime, and inadequate access to services and jobs, making it harder for individuals and families to escape poverty.”
The groundwork for isolating and tearing apart Black neighborhoods was laid well before passage of the Interstate Highway Act. Starting with the New Deal, the federal government used race to define the very neighborhoods that the interstate highways would later bore through. In 1936, the Home Owner’s Loan Corporation within the Federal Housing Authority issued “residential Security” maps that rated neighborhoods from green to red, thereby introducing the notorious practice of redlining neighborhoods housing “undesirable elements” too risky for a federally funded mortgage. The same year, the Home Owner’s Loan Corporation issued its Underwriting Manual that made race the key factor in the evaluation of mortgage risk by advising valuators to determine the presence of “incompatible racial and social groups” and expressly supporting the use of racial covenants and zoning laws. So effective was this federal rating system that “[b]etween 1934 and 1962, a mere 2 percent of $120 billion in Federal Housing Administration loans went to nonwhite families.”
In 1944, the report to Congress of the National Interregional Highway Committee (appointed by FDR) recommended locating routes through slums and surrounding blighted areas. Then, in 1949, the Housing Act made federal money available to states to deploy for urban renewal – with the result that more housing units were destroyed than built.
From 1949 to 1973, 2,532 urban renewal projects were carried out in 992 cities around the country. These projects displaced a total of one million people, two thirds of them Black. At a time when Black people were only 12 percent of the population in the United States, they were five times more likely than others to be displaced by urban renewal.
The displacement of Black communities won the sanction of the Supreme Court. In 1954, weeks after Brown, in Berman v. Parker a case that arose in its own back yard, the Court upheld the exercise by local governments of eminent domain to seize homes with little payment and no relocation assistance. Berman v. Parker upheld eminent domain in Southwest Washington, D.C. for an urban renewal project that replaced a population that was 70 percent black with a population that was 70 percent white. Justice William O. Douglas acknowledged that the population was 97.5 percent Black, and then went on to state:
Miserable and disreputable housing conditions may do more than spread disease and crime and immorality. They may also suffocate the spirit by reducing the people who live there to the status of cattle. They may indeed make living an almost insufferable burden. They may also be an ugly sore, a blight on the community which robs them of charm which makes it a place from which men turn. The misery of housing may despoil a community as an open sewer may ruin a river.
Thus, before the construction of interstate highways, decades of redlining, racial zoning, and segregation denied Black people the ability to build wealth by the purchase of real estate and insurance, and discouraged business investment in Black communities. Later, camouflaging racist intent and impact, “urban renewal” projects aimed as eradicating “blight”, and “slums” failed to yield adequate public housing. Then, in city after city, the new interstate highways confined Black people inside insurmountable barriers.
Raising Obstacles to Travel Within Cities
In the chapter, “Berlin Walls”, Archer explains how – within the barriers set by the new highways – urban planners employed other strategies that curb Black people’s everyday movements.
The subtle and not-so-subtle uses of street-planning techniques included dead-ending streets, converting roads to one-way streets that repeatedly led drivers away from whit communities; turning through streets into cul-de-sacs; changing the names of streets as they passed from white to Black communities; and refraining from paving streets as they approached racial boundaries.
In 1981, in Memphis v. Greene, the Supreme Court found nothing unconstitutional the common street-planning tactic, street closure. (https://supreme.justia.com/cases/federal/us/451/100/) The case concerned the fact that to get to downtown Memphis, residents of a predominately Black neighborhood would take West Drive, which ran through an exclusively white neighborhood, Hein Park. When the city closed off West Drive at the request of Hein Park’s neighborhood association, Black residents sued. They alleged that the street closure violated the Civil Rights Act of 1866, 42 U.S.C. § 1982, which entitles all citizens to “have the same right . . . as is enjoyed by white citizens . . . to inherit, purchase, lease, sell, hold, and convey real and personal property” and that the closure constituted “a badge of slavery” in violation of the Thirteenth Amendment.
Writing for the majority, Justice John Paul Stevens found that the Black residents’ only injury was negligible – that they would suffer the “slight inconvenience” of using one street rather than another for certain trips within the city. Narrowly reading the record, the majority held that no civil rights were violated. Rather, the city’s decision to close West Drive was motivated by its interest in protecting the safety and tranquility of a residential neighborhood. The procedures followed in making the decision were fair and were not affected by any racial or other impermissible factors. The city has conferred a benefit on certain white property owners, but there is no reason to believe that it would refuse to confer a comparable benefit on black property owners. The closing has not affected the value of property owned by black citizens, but it has caused some slight inconvenience to black motorists.
Nor, the majority held, did the street closure violate the Thirteenth Amendment. Reducing the Black residents’ claim of harm to “the symbolic significance of the fact that most of the drivers who will be inconvenienced by the action are black”, the majority ruled that the inconvenience of the drivers is a function of where they live and where they regularly drive — not a function of their race; the hazards and the inconvenience that the closing is intended to minimize are a function of the number of vehicles involved, not the race of their drivers or of the local residents. Almost any traffic regulation — whether it be a temporary detour during construction, a speed limit, a one-way street, or a no-parking sign — may have a differential impact on residents of adjacent or nearby neighborhoods. Because urban neighborhoods are so frequently characterized by a common ethnic or racial heritage, a regulation’s adverse impact on a particular neighborhood will often have a disparate effect on an identifiable ethnic or racial group. To regard an inevitable consequence of that kind as a form of stigma so severe as to violate the Thirteenth Amendment would trivialize the great purpose of that charter of freedom.
Thurgood Marshall, joined by Justices Brennan and Blackmun, filed a dissent. It was grounded in a close examination of the record and a profound understanding of the impact of a decision like the closure of West Drive.
This case is easier than the majority makes it appear. Petitioner city of Memphis, acting at the behest of white property owners, has closed the main thoroughfare between an all-white enclave and a predominantly Negro area of the city. The stated explanation for the closing is of a sort all too familiar: “protecting the safety and tranquility of a residential neighborhood” by preventing “undesirable traffic” from entering it. Too often in our Nation’s history, statements such as these have been little more than code phrases for racial discrimination. These words may still signify racial discrimination, but apparently not, after today’s decision, forbidden discrimination. The majority, purporting to rely on the evidence developed at trial, concludes that the city’s stated interests are sufficient to justify erection of the barrier. Because I do not believe that either the Constitution or federal law permits a city to carve out racial enclaves, I dissent.
Missing Buses and Transit Lines
With the post-war increase in the use of automobiles and the dedication of funds for construction of roads toward suburbs, there was scant public funding for public transportation by bus and rail, the primary mode of transportation for poor Black people. Moreover, with their neighborhoods divided and destroyed, many were left in “transportation deserts”. Without transportation, residents had a tough time getting to work, to shops, to school, to doctors and dentists, and to parks, movies and friends’ homes. At the same time, white suburban neighborhoods foreclosed Black workers from accessing jobs – with the result that they too became “transportation deserts”.
In one instance, in Ohio, a white suburb’s refusal to add bus stops for Black people was rectified after four years and a complaint to the Federal Highway Administration’s Office of Civil Rights. In response to an administrative complaint, that office’s investigation resulted in a letter of noncompliance finding that when the Dayton suburb, Beavercreek, failed to provide bus stops within its town limits it violated Title VI of the Civil Rights Act of 1964. The 2014 finding against Beavercreek was the first such finding in the history of the Federal Highway Administration, which had been in operation since 1966.
In urban public transit, as in other systems, a vicious cycle persists. White fear, based on the myth of excessive Black criminality, has white communities and their political representatives imposing disparate treatment, harassment, and over-policing. In Detroit, Atlanta, and New Orleans – all cities with predominately Black public transportation commuters – the penalties for fare evasion are higher than for driving or parking violations. In Detroit, for example, evasion of a fare is a criminal misdemeanor punishable by a fine of up to $500 or a ninety-day jail sentence, whereas overtime parking or not paying a meter are civil infractions subject only to a $45 fine. (Archer notes that Seattle, Washington; Portland, Oregon; and Madison, Wisconsin, have set penalties for evasion of fares in line with penalties for parking violations.)
Sidewalks: The White Man’s Right of Way
Black people were forced during slavery and Jim Crow to cede the sidewalk to white people and walk in the street. To the present day, Black people are denied walkable sidewalks and other means of pedestrian freedom. Because pedestrian infrastructure is “localized in its construction, funding and maintenance” and “the federal government does little to oversee or force on sidewalk quality or even whether sidewalks are required”, “poorer neighborhoods that are disproportionally Black and Brown are less able to invest private capital into maintaining their sidewalks.”
Inequities abound. When a city bills property owners for sidewalk repairs, that debt is enforced through a lien that may result in foreclosure. When a city relies on citizen complaints to make repairs, low-income residents are less likely to call. (By contrast, in 2017, Boston had the means and the official will to conduct a block-by-block inspection of its 1,600 sidewalk miles to come up with a repair schedule.)
In addition to the impediments to mobility resulting from inadequate or non-existent sidewalks, disproportionately higher rates of pedestrian injury and death are rampant in neighborhoods of lower-income and Black and Brown people where high-speed roads are likely and where, besides sidewalks, crosswalks and warning signs are lacking. In 2018, the fatality rate of Black pedestrians was almost twice that of white pedestrians. Finally, as is the case in public transit and driving while Black, there is over-policing of pedestrian traffic rules in Black communities where the absence of sidewalks, crosswalks, and signals leave pedestrians with no option but to break pedestrian laws,. The Department of Justice investigation of the shooting of Michael Brown in Ferguson, the majority-Black suburb of St. Louis, revealed that, to get revenue, the Ferguson police had a practice of extracting fines from Black pedestrians who, from 2011 to 2013, accounted for 95 percent of the charges for the offense of walking in the road. (For an account of Ferguson ten years after imposition of a consent decree, see https://www.npr.org/2024/08/09/nx-s1-5064675/michael-brown-ferguson-killing-10-years.)
The Limited Reach of Traditional Legal Tools
According to Archer, “the exclusionary impact“ of transportation infrastructure has proven an effective strategy of white supremacy because federal courts have failed to realize the potential of the Equal Protection and Due Process Clauses, the Civil Rights Act of 1964 and the Fair Housing Act of 1968. Highlighting the decision of the Court of Appeals for the Sixth Circuit in Nashville i-40 Steering Committee v. Ellington allowing the routing of I-40 through North Nashville, Archer identifies the several ways that courts have given “undue deference to public officials, while placing undue burdens on community members who are challenging municipal actions.”
First, courts have limited application of anti-discrimination laws to infrastructure planning decisions after they have been made instead of examining the planning process itself. Second, courts have put the burden of proof and enforcement on members of the affected communities instead of on the government agencies that possess “resources and expertise to police those decisions more effectively.” Third, courts have required evidence of “intentional racial discrimination by individual ‘bad actors’ while ignoring systemic and structural inequality and decades of accumulated harm.” In 1979, in Washington v. Davis, the Supreme Court “enshrined the limits set by cases like Nashville i-40 Steering Committee v. Ellington and robbed the [Fifth and Fourteenth] amendments of much of their potential”. Washington v. Davis, like Berman v. Parker, involved Washington, D.C. A written test, Test 21, disproportionately kept Black people from serving as police officers in Washington, D.C. From 1968 to 1971, 57 percent of Black applicants failed the test compared to 13 percent of white applicants. The Supreme Court ruled that, to prevail under the equal protection clauses of the Fifth and Fourteenth Amendments, evidence of disparate impact was insufficient; plaintiffs must show evidence of an intent to discriminate.
The Court of Appeals for the D.C. Circuit had ruled for the Black applicants, declaring that lack of discriminatory intent in designing and administering Test 21 was irrelevant; the critical fact was, rather, that a far greater proportion of blacks – four times as many – failed the test than did whites. This disproportionate impact, standing alone and without regard to whether it indicated a discriminatory purpose, was held sufficient to establish a constitutional violation, absent proof by petitioners that the test was an adequate measure of job performance in addition to being an indicator of probable success in the training program. https://supreme.justia.com/cases/federal/us/426/229/
The Supreme Court reversed. Justice Byron White, writing the majority 7-2 decision, stated “[o]ur cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact.” The same reasoning has been applied to federal cases brought under Title VI of the Civil Rights Act of 1964.
Archer inveighs against judicial insistence on the intent to discriminate standard because it is now “nearly insurmountable”. Courts have struck down laws with discriminatory intent written into their text – such laws as those explicitly denying Black people mortgages, integrated classrooms, and seats in the bus. Nowadays, government personnel know better than to express a discriminatory motivation; moreover, government decisions are made by whole groups of people, so individual intent is irrelevant. To root out the bias within our system, we must defeat policies that are “facially race-neutral” but that continue to have a “racially disproportionate impact, in part because they are implemented in the wake of a long history of intentional discrimination.”
The Goal is Justice
Archer rounds out Dividing Lines by looking past the limitations of existing civil rights legal standards to laws that put on the government the affirmative responsibity for showing that a proposal does not have a discriminatory impact. She points first to the Voting Rights Act of 1965. Until 2013 when the Supreme Court put an end to it in Holder v, Shelby County, Section 5 of the Voting Rights Act mandated that fifteen jurisdictions with a history of racial discrimination in voting preclear every proposed voting change with either the Department of Justice or the Court of Appeals for the D.C. Circuit.
Archer then turns to Racial Equity Impact Assessments or Studies (REIS’s). REISs are modeled upon Environmental Impact Studies mandated by the National Environmental Policy Act requiring a process to evaluate the potential environmental consequences of a proposed project development before it is carried out to ensure that decision-makers consider the likely environmental effects and strive to minimize negative socioeconomic, cultural, and human health impacts. REISs, as Archer envisions them, should go beyond process and analysis of a transportation proposal to “affirming that the proposal will not disproportionately burden communities of color.”
REIS’s have the potential to “help move decision makers beyond their traditional focus on intentional racial bias by discrete actors to a more accurate focus on . . . the sources of structural racial inequality.” They would open up community-wide conversations about historic injuries and create spaces where conversations have to take place. In fact, Washington, D.C. and several states, including Iowa, Connecticut, Maryland, New Jersey, Oregon and Virginia now use a mandatory or voluntary REIS for proposed criminal justice legislation. Information is found at: https://www.dcracialequity.org/racial-equity-impact-assessments; https://dls.maryland.gov/about-us/racial-equity-impact-notes; and https://jlarc.virginia.gov/racial-and-ethnic-impact-statements.asp.
Winding up, Archer summarizes her work by acknowledging that [t]he scope of the harm is daunting” in the communities where “[a]s Jim Crow faltered and finally fell, transportation infrastructure stepped into its place” and “h]ighways and bridges, roads and sidewalks, buses and trains have been used as tools to separate Black people from opportunity and to erase Black wealth and community while creating white wealth and community.” She closes by reminding us that we can build something “more just” and that our transportation systems can be the “means of connection and empowerment for everyone.”
These two videos record Archer discussing Dividing Lines:
