Rethinking Highway Construction as De Jure Segregation: A Case Study for Equal Protection Lawsuits – N.Y.U. Journal of Legislation & Public Policy

By Teddy Rube

October 9, 2023

Our nation is experiencing a reckoning with acts of racialized division catalyzed by the creation of the Interstate Highway System. National news stories, drawing on decades of work by community activists and academics like Professor Deborah Archer, are documenting again and again how the planners who constructed the country’s federal highways in the 1950s and 1960s intentionally divided and segregated communities of color. In Syracuse, Houston, Atlanta, Nashville, Miami, and many more cities, communities are beginning to acknowledge the racial intent behind highway development. Federal officials like Pete Buttigieg acknowledge that the construction of the interstate highways system the 1950s “obviously reflects racism.” The Biden Administration’s “Reconnecting Communities” pilot program is providing hundreds of millions of grants so cities can address past racial equity issues in infrastructure planning.

Yet, for all of this recognition of infrastructure projects as a tool of segregationist policy, there is little treatment of highway construction as a matter of constitutional litigation. Unlike with school or housing segregation, Courts have not recognized highway construction as reflecting intentional de jure segregation. Academics and activists prudently argue that racial justice advocates’ resources should be put towards non-litigation policy tools like racial equity impact statements, a tool which protects marginalized communities before government activity occurs. At the same time, the Supreme Court is moving swiftly to entrench an increasingly colorblind view of Equal Protection. That said, old precedent from the 1960s and 1970s regarding the impermissibility of de jure segregation remains strong and on the books. Thus, there is an analytical gap between the historical facts — that highways were an intentional tool of segregation — and constitutional law.

This piece aims to help bridge this gap. It applies a Constitutional intentional discrimination analysis to one particularly egregious instance of highway-assisted segregation policy in Miami, Florida.

First, this piece briefly explains the history of Overtown, a historically segregated Black community in downtown Miami. It highlights how government officials, seeking new tools of racial exclusion after Brown outlawed de jure segregation, used the construction of the I-95 Interstate highway in the 1950s to demolish Overtown and remove its Black residents.

Second, using the Overtown facts as a case study, this article analyzes whether Miami’s actions during the construction of I-95 would qualify as intentional discrimination under the Fourteenth Amendment. In doing so, this article seeks to explain why previous Equal Protection challenges to highway projects in the past failed, and why the Overtown case is different. Additionally, it argues that the law that should be applied in these kinds of cases is that of housing segregation.

Third, drawing on new historical and constitutional research by scholars, this piece argues that the federal government, which condoned and actively aided Miami’s segregationist project, should jointly share intentional discrimination liability under the Fifth Amendment.

Finally, this piece raises other important questions which scholars, activists, and litigators should consider if they want to make the case in court that segregation-by-highway is just as constitutionally cognizable — and unlawful — as other kinds of racist policies.

I. Background: Segregation and Highway Construction in Miami

A. De Jure Segregation in Miami

Just two months after the Supreme Court issued Plessy v. Ferguson, Miami, Florida was incorporated as a de jure segregated city. Even as the growing Black community’s labor powered Miami’s railroad and construction industry, Black Miamians were systematically constrained to a section of the city’s northwest in a 50-block area known as “Colored Town,” and later “Overtown.” ¹ Segregationist policymakers enforced Miami’s color line with official mechanisms and targeted white bombings and other violence. ² Despite the deprivations of Jim Crow, by the 1940s Overtown was a thriving 40,000-person Black community, known as the “Harlem of the South.” The vibrant Overtown of the 1940s and 1950s included Black-owned businesses, theaters, restaurants, bars, and music venues that played host to Louis Armstrong and Marian Anderson.³ Overtown was also an exemplar of Black homeownership. For the family of former residents Naomi and Agnes Rolle, whose father and grandmother built their peach-colored stucco and concrete home by hand, property ownership and Black business provided a life of relative stability.

As Miami grew, the city’s all-white business district began to encroach on Overtown, directly to the Northwest of the city center. In collaboration with state and federal officials, Miami planners explicitly generated plans to ensure the continued whiteness of central Miami and reclaim Overtown’s land for development purposes. Starting in the 1930s the city collaborated with the predecessor of the U.S. Department of Housing and Urban Development (HUD) to build a segregated all-Black housing development called Liberty City, five miles northwest of central Miami with the explicit aim of “remov[ing] the entire colored population” there.⁴ The Dade County Planning Board’s chairman put a finer point on it, describing Liberty City and other all-Black housing projects as part of “a complete slum clearance effectively removing every negro family from the present city limits.”⁵

After Florida courts began to declare racial zoning ordinances unconstitutional in the 1940s, these plans intensified. Federal Home Owners’ Loan Corporation (HOLC) administrators in this period ensured that Overtown would be ripe as a target for “urban renewal” by intentionally denying Black residents access to loans for home purchase and reconstruction.⁶ The HOLC redlining maps’ assessment of Overtown was typical of the view of federal highway planners and other federal agencies as to what should be done with communities like Overtown: Despite being “practically 100% built up,” Overtown was “the downtown Negro area” with “repairs in poor condition . . . many of the houses should be repaired or destroyed.” Notwithstanding the equity that had been poured into homes like that of the Rolle sisters, local and federal policies slated their family for removal.

B. To maintain housing segregation, Miami built a highway

After the Supreme Court began the process of outlawing de jure segregation in 1954 with Brown v. Board of Education, Miami, Florida, and federal officials turned to other methods. The 1956 Interstate Highway Act provided the tools and funding they needed to remove Overtown’s Black residents. Encouraged by federal and state administrators who shared an interest in racially-motivated “slum clearance” and “urban renewal,” in 1956, local and state authorities made the decision to run the Interstate-95 (I-95) highway directly through Overtown. The decision was made without holding a single public hearing in Overtown. Early proposals that would have left Overtown untouched by building the highway along an abandoned railway line were rescinded summarily.⁷

The result was devastating. Officials placed a massive interchange of the North-South I-95 and the West-East I-395 (the “Overtown Expressway”) at Overton’s center, eliminating 40 square blocks and the homes of 10,000 people. The rest of the construction displaced even more. By 1968, only 8,000 of Overtown’s 40,000 residents remained.⁸ Black homes, businesses, churches, and other institutions were condemned and replaced by parking lots, industrial and commercial spaces, performance venues directed at white suburbanites, and city, state, and federal office buildings. To the extent resettlement assistance was provided, it meant exile to segregated housing in Liberty City and other outlying developments that suffered from substandard housing conditions and lacked the community structures and amenities Overtown had built up.⁹ Even if homeowners were compensated, they were often paid below market value, in keeping with white assessors’ low opinion of the neighborhood. The Rolle family home was bulldozed. They were evicted and moved to Liberty City, where they remained for 60 years. In place of their peach-colored stucco home now stands a concrete highway support pillar. For an interactive guide to this story, Miami University’s “Race, Housing, and Displacement in Miami” has a useful online tool.

For years afterwards, city, county, state, and federal agencies failed to address the vestiges of its segregationist policies. Miami-Dade County and HUD continued to operate segregated public housing until 1997,¹⁰ further concentrating Black residents in Liberty City and other housing projects in Northwest Dade County.¹¹ Instead of making things right, the city — with state and federal funding — has announced a redevelopment project to further expand the Overtown Expressway. In a seeming effort to address Overtown’s harm, Miami has tentatively proposed the creation of an “Underdeck” consisting of parks and “community activity spaces.” But there has never been a legal admission of wrongdoing.

II. The Construction of the Highway Constitutes Racial Discrimination in Violation of the Fourteenth Amendment

A. The state and city’s actions make out a strong prima facie case of intentional discrimination

The Equal Protection Clause of the Fourteenth Amendment prohibits state actions taken on the basis of racial discrimination. Infrastructure projects qualify as reviewable state action.¹² Miami and Florida’s intentional discrimination liability can be assessed together, as decision-making on highway siting was effectively intertwined.¹³ Courts use the Arlington Heights factors to assess if these types of administrative decisions were motivated by unconstitutional racial animus. The factors are 1) whether the decision has had disproportionate impact on minorities; 2) the historical background of the decision; 3) specific antecedent events, including departures from normal procedures; 4) contemporary statements from decisionmakers expressing discriminatory animus.¹⁴

The historical facts stated above arguably make out a prima facie case under these factors. First, the construction of the highway had a disproportionate impact on people of color. No major white residential area was destroyed by the construction of I-95 in Overtown. And, to the extent that the margins of white areas were impacted, any white residents displaced by I-95 were not subject to the barriers of redlining, racially exclusive covenants, and discriminatory lending policies.

Second, as discussed above, the historical evidence of Miami’s coordinated plan to maintain de jure segregation supports an inference that I-95 was part of that project. Third, the procedural history was marked by irregularities and changes that support an inference of animus. Highway planners jettisoned race-neutral plans that would have impacted few residential areas (by running the highway along a railway line) in favor of clearing out Overtown. Not a single public hearing was held in Overtown, effectively excluding Black voices from the process.¹⁵

Fourth, as discussed above policymakers openly discussed their racial motivations in contemporaneous, explicit statements. One planner urged state highway officials to use I-95 to remove “slum type buildings housing negroes.”¹⁶ The plan was so explicit that the Miami Herald in 1961, referring to highway planners, could run the headline “He’d Shift Negro District, Build New ‘Downtown.’”¹⁷ It’s hard to imagine a development program with a clearer intentional discriminatory animus.

B. Caselaw makes it hard to find development projects discriminatory – but here’s why this highway construction was different

Historically plaintiffs have struggled to challenge development decisions as segregation or intentional discrimination. This case is distinct from negative precedents in two key ways.

First, the presence of unequivocal statements of racialized intent provides the level of clarity courts require when assessing development projects. Courts, viewing architecture as distinct from regulation, often apply a high standard for intent.¹⁸ In the leading case to apply Equal Protection to the placement of a highway, Nashville I-40 Steering Committee v. Ellington, the Sixth Circuit failed to find intentional discrimination when Nashville and Tennessee planners altered the path of Interstate-40 to bisect a Black neighborhood.¹⁹ Plaintiffs demonstrated conditions almost identical to the Overtown case — but lacked contemporary statements indicating policymakers’ racial animus.²⁰ Without a smoking gun, the Court held highway planners’ decisions should receive judicial deference.²¹

However, this case’s record and historical context distinguish it. Miami’s officials were on record, at meetings, and in the newspapers expressing their discriminatory aim. Also, unlike in Nashville, where there were racial tensions over segregation’s end but no clear coordinated plan to maintain it—an underlying rationale in the Ellington court’s reasoning—here there is evidence that the development came after decades of planning to remove Black people from Miami to the Liberty City complex in coordination with HUD.

Second, the markedly destructive and segregative impact of the demolition and highway construction further distinguishes it from other negative development law precedents. Courts tend to dismiss infrastructure discrimination claims when the project’s impact is cast as objectively minor or mild, as demonstrated by the Supreme Court’s logic in Memphis v. Greene.²² The Court held that the city of Memphis’ decision to close a street that connected an all-white neighborhood to a primarily Black one at white residents’ behest was nondiscriminatory. It held that “Although . . . [those] inconvenienced by the closing [were] primarily Black,” the disparity was nondiscriminatory because the inconvenience was “slight”: the closure merely diverted Black motorists’ traffic, without evidence that the diversion “will limit the social or commercial contact between” white and Black residents.²³

In Miami, the impact was far more than a slight inconvenience: the city destroyed thousands of homes; eliminated hundreds of businesses; and forced out over 30,000 residents. The decision largely achieved Miami’s express goal of limiting “social and commercial contact” with the Black community. This intense and substantial impact on residential housing also distinguishes it from challenges to other rejected infrastructure Equal Protection claims, which dealt with lower-level impacts such as the redirection or construction of bridges or streets, or the assessment of use tolls.²⁴

C. Courts should apply precedents involving housing discrimination — because that’s what really happened when I-95 was built

Further, given the close nexus between I-95’s construction and Miami’s housing policy, the type of law that arguably should be applied is not that of development projects, but that of housing segregation, which has more analogous and favorable precedents.

Take a leading example: in the 1970s litigation Garrett v. City of Hamtramck, the Eastern District of Michigan and the Sixth Circuit found that a city’s demolition of an all-Black neighborhood under similarly programmatic circumstances to Miami’s actions constituted intentional discrimination that violated the Fourteenth Amendment.²⁵ The City of Hamtramck used eminent domain to condemn a Black neighborhood and replaced it with an industrial park and an expressway. In finding discriminatory intent, the court relied heavily on the fact that Hamtramck’s urban planners had for years pursued a “planned program of population loss” directed at Black individuals, which officials described explicitly as “negro removal.”²⁶ Further, Hamtramck’s anticipation of the discriminatory impact indicated its discriminatory intent. Since city planners knew “that the City had a grave shortage of low-income housing and an awareness of extensive discriminatory housing practices” that would prevent Black residents from finding housing within the city limits, the court found the city’s intent could only have been to affect a “total . . . removal of Black citizens from the community.”²⁷

A court applying the logic of the Hamtramck precedent to Overtown’s case would be hard-pressed not to see the similarities and make a finding of intentional discrimination. Miami’s housing and planning policies were almost identical to Hamtramck’s. The city for years had pursued a policy of removing Black residents; its plans anticipated the result of I-95 would be to shunt Black residents to Liberty City and other segregated housing; and it provided no resettlement assistance at first – and when it did, only pursuant to discriminatory policies. This demonstrates that like in Hamtramck, Miami’s highway construction constituted “activity intentionally designed to establish and add to segregation in housing patterns.”²⁸

III. By Funding discriminatory highways, the U.S. Government can be accountable through a constitutional “No-Aid” Principle

As scholars like Richard Rothstein and Joy Milligan have thoroughly documented, the federal government was an active supporter and funder of segregationist policies through its spending clause programs, like housing and school funding. Federal programs like the Federal Housing Administration explicitly laid out segregationist policies in its master redlining guide, the Underwriting Manual.

However, by the 1960s and 1970s, federal courts began to interpret the Fifth Amendment of the Constitution to bar state and local authorities from knowingly funding or supporting discriminatory activity.²⁹ Milligan writes that the federal courts recognized a “no-aid” to discrimination principle, following the following logic: First, the Fifth Amendment bars racial discrimination by federal officials, just as the Fourteenth Amendment does for State officials.³⁰ Second, leading courts like the DC Circuit have held, citing the Supreme Court’s landmark desegregation case Cooper v. Aaron, that the Constitution bars “not just . . . direct involvement, but also . . . government ‘support’ of discrimination ‘through any arrangement, management, funds or property.’”³¹

Applying this “no-aid” principle, as Milligan writes, courts in the 1960s to 1980s held the federal government liable when agency administrators knowingly funded discriminatory housing programs or failed to intervene in funding recipient states or cities’ discriminatory housing policies.³² For example, in the landmark housing discrimination case Gautreaux v. Romney, the Seventh Circuit found that the federal HUD’s “approval and funding of segregated . . . housing sites” operated by the City of Chicago’s housing authority violated the Fifth Amendment.³³ Another key housing “no-aid” case is Garrett v. City of Hamtramck, discussed above, which also found that the Federal HUD violated the Fifth Amendment. In that case, the district court found that HUD “had knowledge of the fact that the federal funds made available to Hamtramck were, to some extent, being utilized to remove Black citizens from the community.”³⁴ The appeals court later affirmed an even wider proposition, stating that “by failing to halt a city program where discrimination in housing was being practiced and encouraged, HUD perpetuated segregation in public housing and participated in denial to the plaintiffs of their constitutional rights.”³⁵

This logic, as applied to the case of Overtown — and the federal highway system writ large — has potentially significant implications. In the case of Overtown, it is undisputed that federal funding provided the support and impetus for Overtown’s destruction. The Interstate Highway Act provided that the federal government pay the lion’s share — up to 90% — of interstate construction during the 1950s. Federal administrators collaborated with local and state planners with a clear understanding that their support would be “used specifically to carry out local racial, housing, and residential segregation agendas.”³⁶ In Miami, federal highway and HUD administrators openly anticipated (and hoped) that the result of construction would be to exile Black people to segregated housing in Liberty City.³⁷ One Miamian civic leader in charge of the housing push alone wrote “dozens” of letters to the director of the FHA’s rental housing program, Eugene Klaber, averring that the goal of housing and highway policy was to “remove the entire colored population” from Overtown.³⁸ Under these facts, federal knowledge — and thus liability — could arguably be established.

Further, there is precedent suggesting that the Eleventh Circuit, in which Miami is located, might approve this theory of federal funding liability. In Anderson v. Alpharetta, a 1981 Fair Housing Act lawsuit by plaintiffs in Georgia seeking to hold the federal HUD liable for a city and county’s allegedly discriminatory plans to frustrate the construction of low-income housing, the Eleventh Circuit specifically invoked and affirmed the principle of Gautreaux and Hamtramck. It affirmed the principle that “HUD could be held jointly liable” alongside state or local counterparts when an agency is “aware” that it “has disbursed federal funds to local housing authorities who are engaged in activities that will establish and add to segregation” as “logical and fair.” While these cases were decided on statutory rather than constitutional grounds, the court’s full-throated embrace of Gautreaux and Hamtramck’s logic suggests a federal liability claim under the Constitution may still be viable in the Eleventh Circuit.

Finally, even if a court rejects a “no-aid” theory of liability and requires a clearer showing of federal discriminatory intent under the Arlington Heights standard, such evidence may well exist. Scholars have documented explicit racism among federal highway engineers.³⁹ More research or discovery may also identify explicit federal manuals or policies for federal highway planners like that of HOLC and the FHA that explicitly encouraged racial separation.⁴⁰

IV. Other Important Litigation Considerations

Could this kind of theory based on past historical wrongs support present litigation? Other significant barriers and questions remain to practical highway segregation litigation.

One is the question of statute of limitations issues. The decision to construct I-95 in Overtown (and highways elsewhere) was made over 50 years ago. However, there are instances where liability can still attach for intentional segregation, even if it was far in the past. First, in cases specifically alleging a government actor’s failure to disestablish the vestiges of past segregation systems under the Equal Protection Clause, some courts have looked past the limitations period. For example, in Thompson v. HUD, a discriminatory housing suit involving HUD’s funding of segregated housing in the City of Baltimore, the courts looked past the statute of limitations to analyze the City and U.S. government’s actions.⁴¹ Finding that HUD’s acts of overt housing segregation could have constituted a past constitutional violation, it then assessed whether during the 3-year statute of limitations after filing the lawsuit the government had failed in its duty to remedy that discrimination. Here, Miami, Florida, and the U.S. government’s failure to address I-95’s ongoing impact — including deciding to reconstruct it, making it worse — offer grounds for review under Thompson’s theory.

This may be similar to the “continuing violation” exception to the statute of limitations.⁴² This doctrine has been applied to workplace discrimination and FHA claims in the past. While some courts have rejected this kind of claim in the context of development projects or past racialized harms,⁴³ others have held that “racial discrimination in the operation of [a program] is a continuing violation, actionable as long as the discriminatory effects remain.”⁴⁴

Additionally, there are other complex questions. What kind of remedy could and should courts grant? Per the Supreme Court desegregation jurisprudence cited in Thompson v. HUD, if highway construction as a matter of law resembles the constitutional violations of housing and school segregation, this would create ongoing “obligations . . . to eliminate the vestiges of discrimination and segregation.”⁴⁵ These ongoing obligations could look like reparative damages, like those requested in the Tulsa Massacre case. Or it might look like a wide-ranging structural injunction, which courts have approved in housing cases like Gautreaux.⁴⁶ These questions warrant further study by activists and legal scholars and are likely to be community and case-specific.

V. Conclusion

The story of Overtown — its displaced Black residents, the clear racism of highway planners — is one of the strongest cases for intentional discrimination in the historical record. This analysis has shown that highway planning for explicitly racist purposes should constitute as clear “de jure” segregation as operating dual schools or segregated housing projects. If accepted, this theory would expand the doctrinal frameworks and remedial tools available to litigators. The use of highways, for Miami’s planners, was in effect the same as the old racial zoning lines or segregated housing. Constitutional law can and should recognize this fact.

Additionally, this piece serves as an encouragement to civil rights advocates to continue exploring older civil rights precedents and arguing for a compelling vision of racial justice in academia, politics, and the courts. The federal government’s cautious embrace of righting past wrongs and repaying the debts owed to Black citizens is an encouraging step, but one that may run up against recent Supreme Court decisions on race-conscious policymaking. However, fully forsaking the courts — as increasingly hostile as they are to federal civil rights claims — is unwise. Even as the Supreme Court makes adverse law on affirmative action and other discrimination law, old cases like Hamtramck, Gautreaux, Thompson v. HUD, and others remain on the books and good law. These cases—and their possibility to hold government actors accountable for past actions — should be researched further, debated, and potentially even argued in court.

Teddy Rube, J.D. Class of 2023, N.Y.U. School of Law.

Suggested Citation: Teddy Rube, Rethinking Highway Construction as De Jure Segregation: A Case Study for Equal Protection Lawsuits, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2023).

1
Paul St. George, Colored Town: Miami’s Black Community, 1896-1930, 56 Fla. Hist. Q. 432, 432-36 (1979).
2
Id. at 442.
3
Id. at 434-38.
4
Raymond A. Mohl, Whitening Miami: Race, Housing, and Government Policy in Twentieth-Century Dade County, 79 Fla. Hist. Q. 319, 321-24 (2001).
5
Id. at 323.
6
Id. at 324-328.
7
Raymond A. Mohl, Stop the Road: Freeway Revolts in American Cities, 30 J. Urban Hist. 674, 683-84 (2004).
8
Mohl, supra note 4, at 344.
9
Eric Tscheschlok, Long Road to Rebellion: Miami’s Liberty City Riot of 1968 124-26 (Masters dissertation, Florida Atlantic University, 1995).
10
See Mohl, supra note 4, at 345 (describing housing segregation litigation against Miami and HUD that ended in a desegregation consent decree).
11
After Overtown’s destruction, “Liberty City served as the nucleus for a fifteen-square-mile, nearly contiguous second-ghetto expanse encompassing most of the northwest metropolitan area.” Tscheschlok, supra note 9, at 95.
12
See, e.g., Memphis v. Greene, 451 U.S. 100 (1981) (evaluating road closure under Fourteenth Amendment).
13
The decision was made through a collaborative process between the Florida State Road Department and multiple city and county authorities, with formal participation from the Miami Chamber of Commerce, private real estate developers, and local businessmen. Mohl, supra note 7, at 685.
14
See Vill. of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266-69 (1977).
15
Mohl, supra note 7, at 687.
16
One planner urged state highway officials to use I-95 to remove “slum type buildings housing negroes.” Tscheschlok, supra note 9, at 116.
17
Mohl, supra note 4, at 324.
18
See, e.g., Sarah Schindler, Architectural Exclusion: Discrimination and Segregation Through Physical Design of the Built Environment, 124 Yale L.J. 1934, 1940, 1942-48 (2015) (explaining how courts’ formalistic conception of “regulation” that excludes architecture has led to a higher standard of intent for infrastructure projects).
19
387 F.2d 179, 184-85 (6th Cir. 1967).
20
Nashville’s planners altered an originally planned route that would not have disproportionately impacted Black residents; an all-white shopping center would benefit from land reclaimed; public meetings were not held in Black neighborhoods; and the highway location would make integrating nearby public schools almost impossible. Raymond A. Mohl, Citizen Activism and Freeway Revolts in Memphis and Nashville: The Road to Litigation, 40 J. Urban Hist. 870, 880-82 (2015).
21
Ellington, 387 F.2d at 184-85.
22
451 U.S. 100 (1981).
23
Green, 451 U.S. at 110-12, 119.
24
See, e.g., Erie CPR v. Pa. DOT, 343 F. Supp. 3d 531, 546-47, 560-61 (W.D. Pa. 2018) (finding removal of a bridge when another remained one block away nondiscriminatory); Coal. for the Advancement of Reg’l Transp. v. FHA, 576 F. App’x 477, 494-95 (6th Cir. 2014) (finding toll increase disproportionately impacting Black drivers not discriminatory).
25
Garrett v. City of Hamtramck, 335 F. Supp. 16, 19 (E.D. Mich. 1971), aff’d 503 F.2d 1236 (6th Cir. 1974).
26
Hamtramck, 335 F. Supp. at 18-19, 21-23.
27
Id. at 19.
28
Hamtramck, 503 F.2d at 1247 (affirming the district court’s finding of a Fourteenth Amendment violation).
29
See Joy Milligan, Remembering: The Constitution and Federally Funded Apartheid, 89 U. Chi. L. Rev. 65, 104-05 (2022).
30
Bolling v. Sharpe, 347 U.S. 497, 498-500 (1954) (incorporating the Fourteenth Amendment’s guarantee of Equal Protection against the federal government through the Fifth Amendment).
31
Nat’l Black Police Ass’n v. Velde, 712 F.2d 569, 580 (D.C. Cir. 1983) (citing Cooper v. Aaron, 358 U.S. 1, 19 (1958)).
32
See, e.g., Gautreaux v. Romney, 448 F.2d 731, 737-40 (7th Cir. 1971), aff’d sub nom. Hills v. Gautreaux, 425 U.S. 284 (1976) (holding that the Federal HUD’s “approval and funding of segregated . . . housing sites” operated by the city of Chicago violated the Fifth Amendment).
33
Id. at 738.
34
See Hamtramck, 335 F. Supp. at 26-27 (the district court ruling); see also Hamtramck, 503 F.2d at 1246-48 (affirming on the question of the federal government’s constitutional liability but reversing on remedial issues).
35
Hamtramck, 503 F.2d at 1247.
36
Raymond Mohl, Interstate Highway Politics and Policy Since 1939, 97 (2012).
37
Mohl, supra note 4, at 325.
38
Mohl, supra note 4, at 321.
39
See, e.g., Deborah N. Archer, “White Men’s Roads Through Black Men’s Homes”: Advancing Racial Equity Through Highway Reconstruction, 73 Vand. L. Rev. 72 (2020).
40
For example, the FHA’s Underwriting Manual explicitly urged administrators to avoid creating a situation where “incompatible racial and social groups are present.” Underwriting Manual, Federal Highway Administration § 937 (Government Printing Office, 1938). It may be that such explicit race-based policies existed in federal highway engineering and planning manuals.
41
Thompson, 348 F. Supp. 2d at 427, 442-451.
42
See, e.g., Kyle Graham, The Continuing Violations Doctrine, 43 Gonz. L. Rev. 271, 272-74 (2007).
43
See, e.g., Tolbert v. Ohio Dep’t of Transp., 992 F. Supp. 951, 954 (N.D. Ohio 1998) (rejecting continuing violation doctrine argument in case alleging negative environmental impacts from highway placement because the decision to locate the highway ). Also, an Oklahoma state court recently rejected a reparations case brought by survivors of the 1921 Tulsa Race Massacre under a nuisance theory because it found that the initial “nuisance”—the destruction of the Black community over 100 years ago—was not “ongoing.” See Associated Press, Oklahoma Judge Throws Out a Suit Seeking Reparations for the Tulsa Race Massacre, NPR (July 9, 2023, 2:44 PM).
44
See, e.g., Palmer v. Bd. of Educ., 46 F.3d 682, 683 (7th Cir. 1995) (allowing claim otherwise barred by statute of limitations because segregation in a school system violated the constitution each day it was in effect).
45
Thompson, 348 F. Supp. 2d at 414.
46
See, e.g. Janet Koven Levitt, Rewriting Beginnings: The Lessons Of Gautreaux, 28 John Marshall L. Rev. 57, 69, 75-79 (1994) (exploring the relief offered in Gautreaux, including the funded relocation of residents, the construction of new housing, and funding commitments from federal agencies to community organizations).