Brooklyn Law Review


This article disrupts the false narrative of white supremacism that has, for more than a century, cast American land use law as race neutral. In doing so, this article builds on an important but underdeveloped body of legal scholarship elucidating zoning law’s role in creating and perpetuating a separate and unequal dual housing system. It provides primary historical evidence and a clear narrative demonstrating that the defining feature of American zoning law—a strict residential use taxonomy that privileges neighborhoods of restrictively regulated single-family homes and burdens less restrictively regulated residential areas—emerged directly from the facially race-based and facially neutral, but nevertheless race-based, single-purpose zoning ordinances of the late nineteenth century American West and twentieth century Jim Crow movement. Applying insights from social science and the fields of critical race and critical legal geography, this article interrogates the US Supreme Court’s ultra deference to facially neutral police power laws that enforce racial boundaries and ultimately deprives those harmed by this dual system of a constitutional remedy notwithstanding substantial evidence of the system’s racially discriminatory purpose and effect. This article advances the claim that institutions, reformers, and land-use scholarship and pedagogy have yet to adequately grapple with the racial segregationist design of American zoning law, and consequently contribute to the endurance of this covert Jim Crow mechanism in nearly every major US city. The result is the persistent segregation of cities by race, chronic underinvestment in neighborhoods where People of Color reside and overinvestment in predominantly white neighborhoods, shifting of environmental and climate externalities of the land use system from privileged, predominantly white neighborhoods to neighborhoods of color, and ultimately multigenerational harms for those denied access to America’s protected, amenity rich neighborhoods. To weed out deeply rooted racism within zoning law, the legal academy must also make good on its commitment to diversity. To this end, the article concludes with a set of equity principles designed to help guide activism and the continued development of a scholarly agenda to confront the racialized organization of American land use law and an urgent call to transform land use law pedagogy.