Good Governance Paper No. 16: Legislating Racial Equity Impact Studies in Transportation and Infrastructure Policy

[Editors’ note: This essay is one in a series—the Good Governance Papers—organized by Just Security. In these essays, leading experts explore actionable legislative and administrative proposals to promote non-partisan principles of good government, public integrity, and the rule of law. For more information, you can read the Introduction by the series’ editors.]

Times of great social unrest offer an opportunity to dismantle broken systems and build new, more equitable systems in their place. In 2020, the United States saw a fundamental transformation of the national conversation around racial justice and inequality. The next presidential administration and the next Congress face a momentous question: how will the United States meet this opportunity? How will we translate the revitalized national conversation about race and racism into constructive action and meaningful change?

Racial justice advocates have called for a Third Reconstruction to address the systemic racism and inequality at our nation’s core. The country’s First Reconstruction followed the end of chattel slavery and was ushered in by the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments to the United States Constitution. The adoption of the “separate but equal doctrine,” the enactment of the Black codes, wide-ranging state-sponsored racial terror, and the Supreme Court’s restrictive interpretations of the post-Civil War legislation, necessitated a Second Reconstruction. The adoption of the Civil Rights Act of 1964 and the Voting Rights Act of 1965 are considered to be the hallmarks of the Second Reconstruction. But, that period of advancing racial justice has long ended.

One component of a Third Reconstruction should be a focus on community equity as a critical component of racial justice. We need to identify and challenge the institutions and policies in our cities that far too often make them inhospitable to economic opportunity for communities of color. Among the critical drivers of inequality, racial segregation, and concentrated poverty in our cities are transportation policy and infrastructure development. The late United States Congressman John Lewis once wrote, “the legacy of Jim Crow transportation is still with us. Even today, some of our transportation policies and practices destroy stable neighborhoods, isolate and segregate our citizens in deteriorating neighborhoods, and fail to provide access to jobs and economic growth centers.” The benefits and burdens of all aspects of our transportation system – highways, roads, bridges, sidewalks, and public transit – have been planned, developed, and maintained to segregate people of color, making it difficult for them to take advantage of society’s opportunities or to access employment, education, and economic resources.

A specific and powerful example is the way that highway development following the passage of the Federal-Aid Highway Act of 1956, also known as the Interstate Highway Act, contributed to the creation and perpetuation of racially and economically segregated cities, and buoyed highway construction, the development and segregation of the suburbs, and the destruction of Black communities, all at the same time. The nation’s interstate highway system was built in a way that intentionally furthered racist politics and goals. It did this by destroying Black neighborhoods—poor, struggling communities as well as economically and socially vibrant ones—and by maintaining segregation through the demarcation of Black from white neighborhoods during a time when the traditional tools of racial segregation were being struck down by federal courts. In some communities, the highways were a tool of removal. In states around the country, often under the guise of “slum removal,” federal and state officials purposely targeted Black communities to make way for massive highway projects. In states around the country, highways disproportionately displaced Black households and cut the heart and soul out of thriving Black communities as homes, churches, schools, and businesses were destroyed. In other communities, the highway system promoted a segregationist agenda in a different way, erecting a post-Jim Crow wall that separated white and Black communities, “protected” white people from Black migration, further entrenched racial segregation, and walled off economic opportunity. And sometimes the highway destroyed Black communities by dividing them into pieces, breaking apart the sense of community that was a source of their strength.

The destruction of a Black community to make way for I-95 in Miami, Florida provides an example of how construction of the interstate highway system was used to actualize a racial agenda to destroy vibrant Black communities. When it was built, I-95 tore through the center of Overtown, a large and vibrant Black community then considered to be the center of economic and cultural life for Black people living in Miami. The destruction of Overtown was the realization of a decades-long campaign by white business leaders to remove Black residents and claim that land to expand Miami’s central business district. By the late 1960s, Overtown was dominated by the highway and there was no evidence of why it was once called the Harlem of the South. At the time, the Miami Times observed that no corner of Overtown “escaped the angered wrath of the bulldozers and wrecking cranes that have been busy at work demolishing homes, churches, apartment houses and business places.” Although nearly 40,000 Black people lived in Overtown before the highway expansion, only about 8,000 remained after the highway was built. Similar stories can be told about communities around the country.

Racialized highway construction has had a lasting impact. Targeted communities and their residents bear the marks of decades of accumulated disadvantage as the highways contributed to the concentration of race and poverty and created physical, economic, and psychological barriers that persist to this day. However, the interstate highway system is on the verge of transformational change as aging highways around the country are crumbling or insufficient to meet growing demand and must be rebuilt or replaced. This is a moment of opportunity. Indeed, the possibility of significant infrastructure development around the country offers an opportunity to redress and repair some of the harm caused by the original construction of the interstate highway system, to strengthen impacted communities, and to advance racial equity and economic opportunity moving forward. But we will need powerful tools for that opportunity to become reality.

Yet, there is an enormous risk that federal, state, and local highway builders will repeat the sins of the past at the expense of communities of color whose homes, businesses, and community institutions again stand in the path of the bulldozers. There is also the danger that trigger terms like “economic investment” and “community revitalization” will cause policymakers to ignore the full range of consequences to those negatively impacted. Whether a state or city is tearing down or rebuilding their highways, these infrastructure projects raise serious racial justice and civil rights concerns for the communities forced to host these highways for decades.

Between 1962 and 1970, Congress enacted legislation to slow down the devastation wrought by highway development by protecting parks, historic districts, and other environmentally sensitive places during transportation projects and, significantly, requiring relocation assistance for people displaced by the construction. Yet, today, these laws are insufficient to address or redress the potential harms of highway development. They lack strategies to harness the opportunity to invest in these often resource-starved communities, and they fail to ensure that racial and community equity remain central to policymaking as redevelopment projects move forward.

To meet this moment, and challenge the racism that has been deeply embedded into transportation policy over decades, government officials and communities need to engage in a structural analysis. They must examine the cumulative effect of institutional structures and systems. Accordingly, state and local jurisdictions exploring infrastructure projects, and those seeking federal funds to complete those projects, should be required to conduct comprehensive racial equity impact studies prior to commencing construction.

Racial equity impact studies have been used in various contexts at the state and local level in recognition that racialized harm has been, and continues to be, systemic and pervasive, and to influence public policy and reform racialized institutions and structures. Although they have been most frequently proposed and adopted in the context of reforming the criminal legal system, a range of jurisdictions have adopted racial equity impact study requirements in other contexts to help unearth racial inequities before harm is inflicted on communities of color.

Broadly, these measures are intended to support the development of fair and equitable governmental action by analyzing how racial and ethnic groups will be differentially impacted by proposed governmental actions, policies, or practices. As a racial equity tool, racial equity impact studies can help reduce racial discrimination by eliminating intentional racial discrimination, but also by requiring consideration of the often-invisible production of inequitable outcomes and opportunities. A racial equity impact study requirement would help states and localities unearth structural conditions that perpetuate racial inequality and understand how highway construction will impact transportation equity; racial segregation and concentrated poverty; economic opportunity and investment; access to quality education and affordable housing; and health outcomes.

Specifically, the next President should take immediate executive action and United States Congress should pass federal legislation requiring policymakers embarking on highway development and redevelopment projects utilizing federal funds to engage in a systematic, comprehensive, and holistic review of how racial and ethnic groups will be impacted by the project. This requirement would advance the goal of rebuilding the nation’s aging infrastructure, while also promoting racial equity and encouraging concrete action toward remedying the harms inflicted by the interstate highway system. These studies should include some essential components. First, the racial equity impact study should require the comprehensive collection and analysis of demographic data and consideration of how racial and ethnic groups and communities will be affected by the proposed highway development or redevelopment project. Second, racial equity impact study requirements should be grounded in principles of transportation justice, with a focus on racial justice, and should redress inequalities in the distribution of the benefits and costs of the nation’s transportation systems. Third, a racial equity impact study requirement should mandate a deeply collaborative community-based process that harnesses the power of localism by meaningfully engaging local stakeholders in helping policymakers understand and evaluate the full impact the project will have on the community and more effectively adjust plans in response to the concerns raised. Finally, a racial equity impact study mandate should include sufficient monitoring and accountability systems to ensure equity throughout the process, and require relevant agencies to take concrete steps to mitigate the negative impacts on marginalized communities of color identified through the study process, and pursue structural changes and remedial actions necessary to advance systemic racial equality and make reparations for decades of past harm.

  

About the Author(s)

Deborah Archer

2020-2021 Jacob K. Javits Professor at New York University, and an Associate Professor of Clinical Law and Co-Faculty Director of the Center on Race, Inequality, and the Law at New York University School of Law. Follow her on Twitter (@DeborahNArcher).