Excerpted From: Shai Stern, Segregation On-demand: Limiting Discriminatory Municipal Incorporations, 72 DePaul Law Review 9 (Fall, 2022) (231 Footnotes) (Full Document)


ShaiSternIn October 2019, the residents of St. George, Louisiana, voted to incorporate as a city and to separate from the unincorporated East Baton Rouge Parish. The vote ended decade-long efforts on behalf of the upper-middle-class suburb of the Louisiana capital to form their own school district. Because Louisiana does not outline a path in law for school district secession, the path of the mostly white suburb residents to achieving their goal involved political and legal challenges. To secede from a school district, they needed to promote special legislative action as well as garner special constitutional exception. After years of delays and failures, suburban residents have found an easier way to take control of their children's schools: they have decided to part with the East Baton Rouge Parish and start an independent city. Subsequent to a successful referendum process, the proposed city was set to formally incorporate but was challenged by the Mayor-President of the city of Baton Rouge and East Baton Rouge Parish on terms of reasonableness. Following two years of litigation, the trial is set to go before the 19th Judicial District Court in 2022.

Two years before the vote on St. George's incorporation as a new city, a similar vote was taken in the state of New York. In November 2017, the residents of the town of Monroe, Orange County, went to the ballots to decide whether or not to allow the separation of the Jewish ultraorthodox village of Kiryas Joel from the town of Monroe and its incorporation as an independent new town. Both the Kiryas Joel residents and the Monroe residents voted, and the decision, which confirms the separation, was primarily adopted by both groups of residents. At the heart of the Kiryas Joel separation process, there were tensions between the communities regarding the lifestyle and conflicts surrounding land control and the education system. Once again, as in the case of St. George, the political and legal challenges have led to the ultra-Orthodox residents of the village of Kiryas Joel to decide on separation through municipal incorporation.

Despite the differences between the cases, both are part of an accelerating spatial phenomenon: spatial separation through municipal incorporation. The data shows that between 1950 and 2010, the United States has witnessed the establishment of more than 3,310 new municipalities. Municipal incorporation may occur for various reasons, such as fear of annexation, economic difficulties, clashes between different social groups, and frustration due to lack of political representation, while others hope to enhance public services and allow the community more control over local revenue. These reasons may be valuable and sometimes even democratically, economically, and socially justified. However, municipal incorporation may also serve purposes that are more controversial, the prominent among them being discrimination through separation.

The Article seeks to examine the phenomenon of spatial separation through municipal incorporation, and whether it can be reconciled with the prevailing legal presumption, set by the Brown v. Board of Education Court and the Civil Rights laws, that separation is discrimination. This examination is not isolated from what is happening in American society. The nationwide protests sparked after the brutal death of George Floyd by a police officer in Minneapolis prove that despite the ongoing quest for equality in American society--among other things, by setting legal presumptions--discrimination, and sometimes even violence, against minorities in American society are still common. The continuation of discrimination against minority groups in American society gives rise to questions regarding the role and power of law in the fight against discrimination and the struggle for equality. It requires reexamination of long-established legal presumptions and their effects on attaining equality. One such presumption--which stands at the core of this Article--is that separation, qua separation, is discriminatory.

By providing a socio-legal examination of the different generations of American spatial segregation, the Article concludes that separation through municipal incorporation somewhat escaped the widespread realization that, at least in the public and constitutional levels, segregation is seen as discriminatory. Therefore, despite the political barriers and legal restrictions laid down by both federal and state law to ban segregation between social groups within the communities, the route for separation through municipal incorporation seems to be unrestricted and easier to implement. Moreover, an examination of the municipal incorporation approval procedures reveals that none of the fifty states attempt to estimate the possible discriminatory consequences of the incorporation or condition the approval with proof that the separation will not lead to discrimination and harm against disadvantaged groups. This state of affairs, despite that municipal incorporation may serve important social, economic, and even democratic purposes, renders this procedure exposed to exploitation by parties seeking to reapply the “separate but equal” doctrine in space.

This understanding requires a more in-depth examination of the justifications, as well as the objections to spatial separation. The Article offers three justifications for spatial separation: the empowerment justification, the pluralistic justification, and the utilitarian justification. Each of these justifications recognizes the importance of spatial separation between social groups, but each warrants separation of different scope and scale. On the other hand, this Article offers three main objections to spatial separation: the one that stems out of the separation's social externalities, the one that focuses on the potential harm to individual autonomy, and a utilitarian objection. These justifications and objections serve as the platform for a roadmap designed to provide political and legal decision-makers with instruments for determining when municipal incorporation should be approved as it is done for worthy reasons, and when it should be rejected because of its discriminatory character. The Article then goes on to implement the proposed roadmap on the two recent municipal incorporation cases discussed at the beginning of this Article: the St. George separation from the East Baton Rouge Parish and the separation of the ultraorthodox village of Kiryas Joel from the town of Monroe. As this Article demonstrates, while these two cases seem alike, they nevertheless maintain significant differences that should affect decision-makers in their determination to approve the incorporation. While the former case expresses an attempt to reapply the “separate but equal” doctrine in the American space, the latter case challenges the irrefutable presumption that separation is always discriminatory. However, this Article does not settle for this. It offers to see the case of Kiryas Joel as a call for a different understanding of the opportunities embedded in separation through municipal incorporation for achieving spatial equality. This understanding implies that separation is sometimes part of the quest for spatial equality. For some social groups, therefore, the familiar legal and social equation about separation and equality should take another expression, whereby separate, therefore equal.

This Article proceeds in six parts. Part I provides a socio-legal review of three generations of American spatial segregation. This part addresses characteristics of spatial segregation in each of the three generations and investigates the causes and procedures that led to the formation of the irrefutable legal presumption whereby “separate” is necessarily discriminatory. Part II discusses municipal incorporation and the reasons why no fewer than 3,000 communities in the United States have chosen to incorporate as municipalities over the last few decades. This part reveals that despite the potential for such a mechanism to be used to segregate social groups, the approval procedures of municipal incorporation do not include any reference, not least the conditioning, to the prevention of spatial discrimination. Recognizing the possibility that municipal incorporation may serve proper social, economic, and democratic purposes, Part III of the Article examines whether the refutation of the presumption that separation is discrimination can be justified. This part argues that the irrefutability of the separation is a discrimination presumption, having both positive and normative costs. On a positive level, the irrefutability of the presumption may prevent the identification and treatment of other discrimination mechanisms. On the normative level, such irrefutability prevents the possibility of differentiating between different cases, circumstances, and contexts in which the separation is made. Part IV extends the normative examination of justifications and objections to spatial separation. This part suggests that the spatial separation between social groups can be justified in three points. The three-point justification includes the empowerment of previously discriminated-against minority communities, a pluralistic defense of communities' ability to realize their worldview, and the practical justification where separation can serve as an engine for competition and economic growth. On the other hand, there are also three objections to the application of spatial separation. The objections include the concern of social externalities, extended violation of individual autonomy, and utilitarian objection, whereby the costs involved in implementing the separation, as well as because of it, could impose a heavy financial burden on all parties involved. In light of these justifications and objections for spatial separation, Part V provides a roadmap for determining the legitimacy of spatial separation through municipal incorporation. According to the proposed roadmap, the starting point for approving municipal incorporation should be under the legal presumption that segregation is discrimination. However, the existence of one of the justifications for spatial separation requires decision-makers to have a more in-depth investigation of the consequences of the separation, following all of the objections presented above. This Article, therefore, calls for the implementation of a procedure that will balance the justification for separation and its implications as an inherent part of the municipal incorporation approval process. Finally, Part VI aims to take the theory and apply it in practice, considering two recent cases of municipal incorporation: the case of St. George, Louisiana, and the case of Kiryas Joel, New York. The application of the theory proposed in this Article on both cases reveals that in so me cases the approach allows for the identification of municipality incorporation, which aims to reapply the invalid and discriminatory doctrine of “separate but equal”; however, in other cases, the separation constitutes a striving for spatial equality. In these cases, the equation should be read as separate, therefore equal.

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Municipal incorporation serves essential social, economic, and spatial needs. The decentralization of local government is justified for democratic, utilitarian, and pluralistic reasons. However, it may also serve as a route designed to circumvent the legal prohibition of spatial discrimination. In some cases, social groups wishing to separate from others, usually less affluent social groups, may bypass the separation bans that have been practiced since Brown v. Board of Education and the Civil Rights laws through incorporation as a separate city.

While not every claim for municipal incorporation involves racist or discriminatory considerations, the racist and discriminatory potential in municipal incorporation requires rethinking of how the law should cope with these requirements.

The potential discriminatory use of municipal incorporation requires the assimilation of a mandatory examination of its racial and socioeconomic implications within the incorporation approval processes. Such an examination should consider the justifications and objections for spatial separation, as well as the incorporation's effects on the communities involved, and the autonomy of the communities' members and society as a whole.

The roadmap proposed in this Article makes it possible to assimilate this examination to balance the benefits of municipal incorporation and prevent its use as a racist and discriminatory instrument. It becomes more significant as socioeconomic disparities and racial tensions across the country become widespread and affect many cities and communities. These tensions constitute a convenient platform for legitimate but also discriminatory and racist attempts at spatial separation. Thus, while minority communities are likely to expand their demands for spatial separation for community empowerment and healing wounds and past injustices, economically established communities may demand such segregation to remove disadvantaged populations and ensure the quality of educational and urban services.

The expectation of increased demands for spatial separation and the use of the municipal incorporation instrument requires a rethink of the economic consequences involved in such incorporation and the profound social consequences it may have. The socioeconomic and racial disparities in American society necessitate the assimilation of mechanisms that will help reduce them, and the roadmap proposed in this Article seeks to do just that.


Associate Professor Faculty of Law, Bar Ilan University.