"Racial Territoriality"

Law treats race as a characteristic of individuals. Applying insights from social science, this Article argues that places can also have a racial identity and meaning based on socially engrained racial biases regarding the people who inhabit, frequent, or are associated with particular places and racialized cultural norms of spatial belonging and exclusion. This racial meaning has consequences that constitutional law often overlooks. One consequence is “racial territoriality,” a distinctive form of discrimination in which people of color are excluded from public spaces that are identified as “white” and treated as being only for white people. This Article conceptualizes a definition of racial territoriality and demonstrates the weaknesses of constitutional doctrine as it applies to racially territorial behavior. Based upon the historic use of spatial separation to subjugate people of color and interdisciplinary research about the social significance of space, the Article advances a new claim that law should take the racial identifiability and cultural meaning of spaces into account when judging intentional racial discrimination. It proposes two approaches to the problem of racial territoriality—one that courts can comfortably integrate into existing equal protection doctrine and a second, more rigorous legislative remedy. Both options contemplate that law specifically—and state actors generally—take more explicit account of the exclusion of people of color from territorialized “white” space. The Article uses several examples to explore this new framework and its practical application. Ultimately, the Article seeks to illuminate the importance of space and racial geography in antidiscrimination discourse. Its goal is to situate spatial belonging as a central theme in the continuing conversation about structural racial disadvantage and to focus attention on racially exclusionary norms that are reinforced by spatial allocations of power.