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Abstract
Predominantly Black communities have long been systematically segregated and sequestered, then intentionally sacrificed, to feed the United States’ growth and expansion. The burdens of development—including roads and highways, sewage, communications, and power infrastructure—and efforts to respond to the challenges of climate change, all fall disproportionately on Black communities that rarely receive the benefits of these investments. For neighbors who have built a sense of community, often across generations and in defiance of racist oppression, sacrificing their homes, and the sense of safety and belonging they offer, is a bitter pill.
A central contention of this Essay is that, across a range of vitally important contexts, our political processes and our laws—including race-based civil rights protections—do a poor job of protecting Black communities from these harms. Rarely does the law offer a sufficient means for community members to advance common interests against interference from local, state, or federal governmental actors. Instead, community members must typically try to aggregate individual claims—narrowly focused on either individual property or health-related injuries—as a proxy for broader community interests.
Focusing on aggregated individual harms falls short in terms of both right and remedy. The strongest rights belong to those whose property rights are directly abrogated in service to the “greater good.” But the law typically fails to recognize the loss of home and community—experienced both by those forced to relocate but also by those who remain in hollowed-out communities. And even those who do have a legally cognizable right—whether they leave or remain—face inadequate remedies because the law accounts at most only for the direct financial harms to individuals and not for the collective losses. Residents may ultimately be compensated for the loss of their house, but not their home.
This Essay seeks to expand how we conceive of home and community to broaden our conception of race-based harms and the tools we should employ to address them. To achieve some measure of justice, this Essay calls for developing a community equity framework to recognize the weight and worth of community as an asset deserving respect and legal protection. Community equity is a framework that advances the equitable distribution of benefits and harms across communities; recognizes the collective investments that community residents make over time to build a sense of security, well-being, and belonging; addresses the harms that accrue to the community from improvident public works projects and neglect; and provides a platform for collective action to defend community interests.
Our proposed framework is aspirational but not entirely untethered from existing legal protections. Public nuisance law—once the wellspring of efforts to deepen segregation—offers a useful model for how community equity might vindicate the rights of communities hit hardest by inequitable development and neglect. With its attention to shared community interests, public nuisance demonstrates law’s ability to recognize public rights and public benefits, with the potential to move community equity from the firmament to firm ground.
Recommended Citation
Archer, Deborah N. and Schottenfeld, Joseph R.
(2025)
"Defending Home: Toward a Theory of Community Equity,"
University of Chicago Law Review: Vol. 92:
Iss.
8, Article 2.
Available at:
https://chicagounbound.uchicago.edu/uclrev/vol92/iss8/2