AVs Must Not Perpetuate Infrastructure Racism

In light of the 2021 Law and Mobility Conference’s focus on equity, the Journal of Law & Mobility Blog will publish a series of blog posts surveying the civil rights issues with connected and autonomous vehicle development in the U.S. This is the first part of the AV & Civil Rights series. Part 2 focuses on the Americans with Disabilities Act. Part 3 focuses on Title II of the Civil Rights Act. Part 4 focuses on the Fourth Amendment.

Road planning has never been value-neutral. From Detroit’s 8 Mile Road to West Baltimore’s “road to nowhere,” infrastructure has been used both intentionally and unintentionally to further marginalize communities of color, and particularly Black communities. As the Biden administration hopes to move forward with sizable infrastructure investments, including potential investment in infrastructure for autonomous vehicles (AV), proposals to build new roads and refurbish existing ones will arise. Both federal and local policymakers must avoid repeating racist automotive infrastructure decisions of the past.

Both before and after the civil rights movement, one of the mechanisms through which segregation and white supremacy were, and continue to be, perpetuated is through urban planning. Federally backed mortgages and other services were unavailable in communities that were evaluated as “insecure” during the early and mid-20th century, meaning that these redlined areas were left blighted as developers looked to development in wealthier, whiter neighborhoods and suburbs. The advent of urban sprawl focused federal transportation infrastructure resources to expressways designed to decrease congestion for suburban commuters to city centers, which often meant that these roads were built right through formerly thriving black neighborhoods, displacing homes and businesses and forcing those who remained to deal with increased pollution and noise. Even public transportation became increasingly geared toward the comfort of white, suburban riders instead of the working class people of color that tend to depend on it. Take the express train, literally designed to skip through entire city neighborhoods and block access for local riders.  

Some environmental and racial justice advocates have turned to civil rights law to attempt to right some of these wrongs. Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, and national origin in programs receiving federal financial assistance, which constitute the majority of infrastructure projects. The statute allows affected communities to file both federal lawsuits and administrative complaints, which equip federal agencies like the Department of Transportation to initiate fund termination proceedings or refer matters to the Department of Justice for other legal action.  However, in Alexander v. Sandoval, the Supreme Court dealt a devastating blow to Title VI by interpreting the statute to require discriminatory intent, rather than discriminatory impact alone, to prove discrimination. Essentially, the holding in Alexander v. Sandoval has eliminated the private cause of action for discriminatory infrastructure and left enforcement up to federal agencies.

On the administrative side, the Biden administration has provided a glimmer of hope for the utility of Title VI. The Federal Highway Administration recently asked Texas’ transportation department to halt construction on an I-45 expansion project after community members filed a Title VI complaint citing concerns about pollution and displacement. The project would impact Harris County, Texas, which has large Black and Latinx populations. Time will tell whether the pause and investigation will yield the result that the community members sought in this complaint, and whether it will serve as precedent for similar actions.

Overall, while impacted communities may use Title VI to stall projects, the best way to ensure that any future infrastructure that facilitates the AV revolution does not violate civil rights is to ensure equitable access to construction decision-making and emerging transportation itself. AV developers cannot tout equity while failing to acknowledge that infrastructure built for cars has had a devastating impact, which may continue without road planning that moves marginalized voices to the center.