TxDOT argues in court that I-35 never caused racial discrimination – contradicting TxDOT

The Texas Department of Transportation (TxDOT) is arguing in federal court that Interstate 35 didn’t unfairly disadvantage Black or Latino Austinites, contradicting the state agency’s own historical assessments of the highway that opened in 1962.

“Defendant specifically denies the allegations that the construction of I-35 caused discrimination against Black or Latino communities or that I-35 impacts on communities along it have fallen disproportionately on marginalized persons,” the Texas attorney general’s office argued on behalf of TxDOT in response to a federal lawsuit. The suit is attempting to stop a decadelong expansion of the highway whose wheels are already in motion.

TxDOT’s denial is part of a broader legal defense against claims from anti-highway expansionists Rethink35 and an alliance of social justice, environmental and neighborhood groups. But a historical report in the state’s federally required study of the plan to add lanes from Ben White Boulevard to U.S. Highway 290 East offers an alternate version of history than the one argued in U.S. District Court.

“In the late 1950s and early 1960s East Avenue’s transformation into IH 35 reinforced the segregated division between the largely white population of Central and West Austin and the largely Black and Hispanic population in East Austin south of Manor Road,” reads a historical analysis in the state’s Final Environmental Impact Statement and Record of Decision for the I-35 Capital Express Central Project. That’s a long title for what amounts to a series of PDF files foretelling the effects of the highway expansion spanning 8 miles through Central Austin.

TxDOT commissioned the report from Wisconsin-based architectural and engineering firm Mead & Hunt and stamped the state agency’s logo at the top. The study was required under the National Historic Preservation Act.

The historical narrative continues: “The intrusion of IH 35 led to the eventual demolition of Samuel Huston College, Winn School, East Avenue Park, and numerous other homes and businesses that once lined East Avenue.”

I-35 was built along East Avenue, a street designated as a racial segregation line by Austin’s political leaders almost a century ago. The 1928 plan called for schools, parks and other civic resources for Black Austinites to be built east of East Avenue. Basic services like sewer lines and paved roads were denied to freedman communities like Clarksville and Wheatville to the west, pushing Black residents into East Austin and away from majority white communities.

Mexican Americans, facing racial discrimination and limited housing choices because of real estate contracts barring sales to “non-Caucasians,” formed their own communities through the early 20th century that would later become severed by the interstate highway, TxDOT’s report says.

“The construction of I-35, which was completed in May 1962 along former East Avenue, cut off Lower Waller Creek, including Palm School and Palm Park, from East Austin. These factors drove displacement of Mexican American residents living along lower Waller Creek,” researchers wrote for Mead & Hunt.

“Interstate construction split the Mexican American community that had previously spanned either side of East Avenue, cutting off residents in the Driskill & Rainey and Bridge View subdivisions from East Austin,” the historical analysis continued, with many citations referencing studies by Austin-based historic preservation consultant HHM & Associates. “Many of the predominantly Mexican American children who attended Palm School lived in East Austin, so they could no longer easily walk to campus, and lost access to Palm Park as well.”

The state’s environmental report on the I-35 expansion uses census data to illustrate how a racial divide exacerbated by I-35 persists. Certain neighborhoods east of the highway have higher rates of asthma – above 10 percent in some areas – and lower life expectancies.

A civil rights complaint about the I-35 expansion filed with the Federal Highway Administration in January highlights much of the same official state documentation.

“The expansion will exacerbate decades of racial discrimination and segregation in East Austin and directly displace many residential, commercial and community facilities, including those that are predominantly used by or provide services specifically to Black, Latino and Native American communities,” the Title VI complaint alleges.

The complaint is topped with a cover letter urging U.S. Transportation Secretary Pete Buttigieg to stop the project.

“It’s very difficult to hide the truth,” said Chas Moore, executive director of the Austin Justice Coalition – one of the plaintiffs in the lawsuit and a signatory to the civil rights complaint. “I think it’s very amusing, to be quite honest with you. They’re quite literally tripping over their own words.”

The state agency declined to answer questions from KUT.

“TxDOT does not comment on pending litigation,” spokesperson Adam Hammons said in an email.

But the highway’s divisive history was cited by TxDOT as a justification for the I-35 expansion. The project calls for demolishing the elevated lanes that run through the city and sinking the main lanes below street level by up to 40 feet – creating a clear view across the highway for the first time in over six decades. TxDOT will build more east-west crossings over I-35, widened bridges called “stitches.”

“One of the themes I’ve read and heard today is citation of I-35 being just a dividing line between the east side and the west side of the city, and we recognize that,” TxDOT’s Austin district engineer Tucker Ferguson said at a recent meeting of the Capital Area Metropolitan Planning Organization’s board of directors. “That visual barrier will be removed.”

TxDOT’s environmental report says the I-35 Capital Express Central project will impact minority and low-income communities. It cites the forced relocation of minority-owned businesses and health clinics catering to underserved communities.

The state says it’s taking steps to mitigate the impact of those displacements, like providing Capital Metro bus passes to patients commuting to medical appointments elsewhere or by providing financial assistance to businesses driven out by the project.

But the state’s denial of a historical record generated by the state is unlikely to make a big difference in the lawsuit against the I-35 expansion, an attorney for the plaintiffs says.

“I think (the legal argument) is likely an error or a case of the legal team not speaking with the environmental review team or just a missed connection,” said Rachel Doughty, a California-based attorney with Greenfire Law. “Mistakes get made all the time.”

Doughty’s case hinges on whether TxDOT properly considered the environmental consequences and racial impacts of the future I-35 expansion. She said the highway’s history would be easy to prove in court, especially because TxDOT has already commissioned detailed documents.

“It’s not something that can really be denied,” she said. “It’s not controversial as a matter of history.”

This story was produced as part of the Austin Monitor’s reporting partnership with KUT.

The Austin Monitor’s work is made possible by donations from the community. Though our reporting covers donors from time to time, we are careful to keep business and editorial efforts separate while maintaining transparency. A complete list of donors is available here, and our code of ethics is explained here.