The Color of Law: A Forgotten History of How Our Government Segregated America
by Richard Rothstein
W. W. Norton & Company, 2017, 368 pp.
The United States today is less a nation of citizens equal under the law than a nation of citizens living in unequal zip codes. Where we live is both a cause and effect of individuals’ and households’ wealth, health, and wellbeing—the kinds of jobs we have; the quality of our housing, education, medical insurance, and police and fire protection; crime rates and whether or not our neighbors are incarcerated; and bonds of family and community. An understanding of U.S. housing patterns, then—how they came to be so segregated, and why they remain so—is critical to the way we think about this country’s ideal of democracy and reality of unequal citizenship.
In his compelling new book The Color of Law, Richard Rothstein (a research associate at the Economic Policy Institute) argues that inequality stems from deliberate housing policies on the part of the federal government, and that these policies thus constitute a violation of Constitutional rights. Segregation by race is an extension of slavery and a betrayal of the Fourteenth Amendment, which guarantees equal protection under the law. Rothstein is not content to provide a detailed examination of the ways public entities have colluded with private interests to keep black people out of white neighborhoods. He argues this is a Constitutional issue and the appropriate remedy is political and judicial action to right past and present wrongs perpetrated by all levels of government.
Conventional wisdom holds that, in the early twenty-first century, residential segregation is the result of the way people have sorted themselves out voluntarily (that is, a de facto system), since the last vestiges of state-sanctioned racial discrimination were essentially outlawed in the late 1960s. However, Rothstein makes the case that segregation is in fact a de jure system—that is, the result of government policies intended to achieve that purpose. Indeed, he argues, the chief architect of our hyper-segregated nation is the federal government, aided and abetted by local and state entities as well as private interests. His book constitutes a legal brief of sorts, meant to educate the legal community and the general public about the active role of government in abridging the rights of former slaves, thereby condemning them and their descendants to second-class citizenship.
Rothstein quotes from the majority opinion written by Chief Justice John Roberts in a 2007 school desegregation case, one that prohibited Seattle and Louisville from taking into consideration students’ race in implementing integration. In his decision, Roberts claimed that residential segregation might have resulted from “societal discrimination,” but, he believed, that state of affairs was “not traceable to [government’s] own actions” but rather to “private choices” and thus impervious to court-mandated remedies. The Color of Law offers a powerful refutation to Roberts’s (and by extension, most Americans’) mistaken assumptions about the nature of residential segregation.
In the antebellum North, where the number of African Americans was small relative to the general population, and in the antebellum South, where the institution of slavery relied on violence and the threat of it to subordinate Africans and their descendants, rich and poor often comingled in the countryside and in cities. After the abolition of slavery in 1865, and especially after the Great Migration of blacks out of the South into northern cities, mass movement of populations upset the antebellum order. Freed men and women aspired to full citizenship rights, including the right to move in search of better jobs and better schools. Cities, counties, and states sought to limit their mobility. Beginning with the First World War, when the national government first built and subsidized housing for civilian personnel near defense plants, federal policies played an outsized role in shaping the racial composition of neighborhoods. This new system of segregation was a direct result of the institution of bondage; in freedom, former slaves and their descendants remained stigmatized by their skin color.
Rothstein examines in detail how all levels of government colluded with developers, real-estate agents, homeowners’ associations, and religious institutions to keep black people out of white neighborhoods, aggressive efforts that were most egregious before the 1960s, but some of which still prevail today. Rothstein also shows how the distinction between private and public blurs when profit-seeking companies such as banks and real-estate firms are affected by government regulatory boards and commissions.
One of the great strengths of this book is Rothstein’s description of housing policies and practices that infect every aspect of American life. Besides segregating public housing projects, the government refused to lend money to subdivision developers who agreed to sell to black buyers. The Federal Housing Administration (created as part of the New Deal in 1934) actually required that new communities be segregated in order to qualify for low-interest financing. The Home Owners’ Loan Corporation (HOLC), founded in 1933, relied on local real-estate agents to appraise neighborhoods and then used color-coded maps to determine whether or not an area would retain its housing values; places without “a single foreigner or negro” (according to a St. Louis HOLC appraiser in 1940) supposedly would.
State legislatures, zoning commissions, and city councils went out of their way to maintain all-white neighborhoods; the state of Virginia ruled that no black person could live on a block where he or she was ineligible to marry a majority of the people (that is, whites) living there. In 1928, the city of Austin, Texas, succeeded in creating a so-called “Negro district,” compelling its black residents to move from a historic black neighborhood to a less desirable part of town, by denying them sewage services and paved streets and by relocating segregated schools and parks. By keeping brothels and gambling joints out of white neighborhoods, zoning laws pushed these noxious places to black areas of town, which were often also the site of factories and toxic dumps.
Governments at all levels cooperated with nonprofits that promoted segregation. The Internal Revenue Service, for instance, granted tax exemptions to religious and educational institutions, hospitals, and neighborhood associations that discriminated against blacks. Banks refused to lend money or provide mortgages to black applicants, or, in a reverse form of “red-lining,” singled out blacks for predatory, high-interest, so-called “ghetto” loans. The courts turned a blind eye to all kinds of discrimination: restrictive covenants that forbade white homeowners from selling to blacks, sanitary districts that threatened to charge higher sewage fees for proposed integrated housing projects, landlords that charged black tenants higher rental fees, and (in concert with local police forces) white terrorists who burned crosses and bombed and burned down black homes. By overvaluing black neighborhoods, tax assessors made it more difficult for black homeowners to pay their property taxes and hold onto their homes. State courts and the Supreme Court routinely refused to review discriminatory laws and policies.
The federal government financed interstate highway projects and local initiatives that demolished black neighborhoods without providing for the relocation of their residents or compensation for their financial losses. Federal tax codes favored homeowners over renters, and federal and state transportation initiatives favored suburbanites over city residents by funding interstate highways but stinting on mass transit.
These persistent efforts to create segregated neighborhoods had devastating effects on black families. In major cities black factory workers had to pay more to commute long distances to their factory jobs, since they were not allowed to live in white areas near their workplaces. Denied mortgages, black buyers often had to rely on installment-plan schemes to purchase their homes, a hardship for men and women kept out of better-paying jobs and forced to work extra shifts at menial jobs in order to provide for their families. They lived in more crowded buildings and neighborhoods compared to their white counterparts, and had to send their children to local public schools that were poorly funded and understaffed.
Rothstein describes this sorry history in rich detail by examining the stories of individual families in different parts of the country. He also recounts the litany of excuses invoked by authorities who engaged in these shameful practices. Their rationales for discrimination included a desire to avoid the wrath of resentful whites; to preserve neighborhoods that were already all-white in an effort to maintain white property values; to abide by a (supposed) wish among blacks to live by themselves; to prevent “amalgamation” (intermarriage); and to prevent white owners from defaulting on their FHA mortgages in the event of “block busting”—that is, real-estate agents’ practice of frightening whites by rumors of racial integration, encouraging them to sell their homes cheaply, and then selling those homes to black buyers at inflated prices.
Another rationale for discrimination was that black people were natural slum-dwellers because they had “always” lived in dilapidated housing in impoverished neighborhoods. This circular reasoning helps to explain the cumulative effects of discrimination—by barring blacks from good jobs and public schools, whites condemned them to poverty, and then cited that poverty as black people’s natural condition. In the North, in the early nineteenth century, whites routinely castigated former slaves and blacks in general as simultaneously “lazy,” because they were poor, and “threatening,” because they aspired to the same rights and privileges as whites. In the South, after the Civil War, white politicians sought to play to the fears of white sharecroppers and field hands in an effort to forestall any cross-racial coalitions based on shared economic interests of the dispossessed. By the 1930s, when federal housing policies began to take shape, most whites associated black people with poverty. And policymakers took it upon themselves to prevent descendants of slaves from depressing real-estate prices in white communities.
At the heart of this history, then, are the financial interests of white property owners. Rothstein argues that government-sanctioned programs promoting segregation and exclusion violated not just the spirit but also the letter of the law as enshrined in the three Reconstruction amendments to the Constitution. The Thirteenth abolished slavery, the Fourteenth granted full citizenship rights to former slaves, and the Fifteenth declared that citizens’ right to vote “shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” In 1917, the Supreme Court invoked the Fourteenth Amendment to rule that a Louisville, Kentucky, zoning ordinance interfered with homeowners’ rights to sell to whomever they wished. This and other courts sought to protect whites’ property values. Judges cited the amendment’s due process provisions as a means to sanctify discriminatory private contracts between individuals, and to uphold the prerogative of private businesses such as banks and real-estate companies to maximize their profits. At the same time, local and state governments abrogated the Fifteenth Amendment by devising voter-suppression efforts, from the late nineteenth-century grandfather clauses and literacy and “understanding” requirements, to twentieth-first century voter-ID laws. Indeed, all these discriminatory measures, whether embedded in law or encoded in practice, reinforced each other; and certainly, the enforced concentration of impoverished African Americans furthered all kinds of prejudicial practices.
Rothstein’s analysis focuses on residential segregation, but he is careful to set this story within a larger context of state-sanctioned discrimination. Employers refused to hire blacks, or barred them from promotions that would lift them out of the most dangerous and demeaning jobs into better ones. Many labor unions refused to admit black workers and opposed workplace policies that called for integrated shop floors and equal pay and hiring policies. The inherently unequal and unjust system of school financing through local property taxes ensured that poor neighborhoods would lag well behind their middle-class suburban counterparts in providing a decent education for all children.
Although the courts began to wipe overtly racist laws off the books in the 1940s, the residual effects of centuries of legal discrimination are still major factors shaping residential patterns and the American social structure. Even middle-class black families lack the substantial equity in real estate that whites have built up over generations. Denied access to good private-sector jobs, black men and women had to rely in disproportionate numbers on civil-service jobs, and so today are particularly vulnerable to slashed municipal budgets. Large banks are still engaging in predatory lending policies in impoverished communities.
Rothstein concludes, “Many of our serious national problems either originate with residential segregation or have become intractable because of it.” So what can be done? First, Americans must confront the history of governmental complicity in segregation, and the enduring legacy—of insidious practices, laws, court decisions, and tax and zoning policies—that continues today. Most whites embrace the idea that because the law is now “colorblind,” the Congress, courts, state legislators, municipal authorities, bankers, and real-estate agents have no role to play in housing patterns or policy.
Rothstein does include some specific remedies, all of them contingent on an enlightened citizenry and an informed judiciary. He notes that K-12 history and social studies curricula are sorely lacking in their treatment of past and present housing discrimination, ensuring that ignorance on these issues will prevail for the foreseeable future. In 1970, Housing and Urban Development Secretary George Romney created what was called the Open Communities program, which, in Rothstein’s words “would deny federal funds (for water and sewer upgrades, green space, sidewalk improvements, and other support for which HUD financial support is needed) to suburbs that hadn’t revised their exclusionary zoning laws to permit construction of subsidized apartments for lower-income African American families.” A reinstated “Romney Rule,” then, would punish white suburbanites who consistently blocked low-income housing by claiming that it was just as detrimental to their property values as chemical-waste dumps and smoke-belching factories would be. Government housing authorities could deny mortgage interest deductions to homeowners in all-white neighborhoods, and could use the Section 8 voucher program (which provides subsidies to low-income families seeking apartments) as a means to integrate neighborhoods. Certainly a renewed effort to challenge existing school-financing plans and school-district boundaries might help to break down the isolation of city schools. The bottom line, though, according to Rothstein, is a “better-educated Court,” one that could lead the way in redressing many years of deliberate assaults on the Fourteenth Amendment in the form of programs that preserved the outlines of slavery in a post-emancipation nation.
Yet the author recognizes that a complete unraveling of the generations-long process of segregation would be an uphill battle. Many black households lack the necessary income (the median for whites is $60,000 a year, and for blacks, $37,000 a year) or assets (median for whites is $134,000, and $11,000 for blacks) to afford a down payment on a home in a better neighborhood. Without a parallel opening of educational and employment opportunities, black families will remain in segregated areas. When federal agencies and private developers build or subsidize housing for low-income blacks, those low-cost units (or homes) are invariably located in all-black neighborhoods. Constructed over the generations, poor neighborhoods have become a vital source of community life—the site of religious institutions, social organizations, and services such as barbershops and beauty parlors—that cannot easily be replicated in a suburban or all-white setting.
Rothstein’s subtitle—“A Forgotten History of How Our Government Segregated America”—is only partially true. A number of historians have explored the themes presented here, either in sweeping accounts of segregation or in detailed case studies, and he gives them their due in his bibliography. However, it is true that the larger public remains convinced that de jure segregation is long past, and that a de facto system—one well outside the reach of governmental action—prevails today.
Even more dispiriting than the substance of the history presented in The Color of Law is the realization that Rothstein’s call for a robust program of governmental intervention amounts to wishful thinking. A substantial minority of Americans seem bent on electing officials who have no interest in facts. Many of these voters and their elected representatives look with suspicion on all kinds of governmental programs, which they assume reward people unworthy of assistance and kill private-sector jobs in the process. Given that rural white interests continue to prevail in many statehouses, and that gerrymandered legislative districts are likely to maintain the status quo for some time, it is difficult to imagine a future president having the courage to appoint Supreme Court justices willing to challenge the obvious expression of a centuries-old white tribalism. As for the current court: perhaps Justice Roberts will read The Color of Law and learn some basic facts about American history. That would be a start.
Jacqueline Jones teaches American history at the University of Texas at Austin. Her new book, Goddess of Anarchy: The Life and Times of Lucy Parsons, American Radical (Basic Books), will be published in December 2017.