The Color of Law: A Forgotten History of How Our Government Segregated America. (Photo: Liverlight Publishing Corporation)

The Color of Law: A Forgotten History of How Our Government Segregated America

Richard Rothstein

Liverlight Publishing Corporation

By all metrics, American housing is a world of self-perpetuating racial segregation. Black and white Americans, in particular, rarely live together.

There is a strong tendency to view this phenomenon as the vexing, aggregate result of an uncountable number of local, uncoordinated decisions made mostly in the past. That story goes roughly like this: Historically, when black families tried to move into white neighborhoods, they would often be stymied by discriminatory sellers, real estate agents, or mortgage lenders. Whenever black families managed to clear these hurdles (and weren't subsequently chased out by racial harassment), their prejudiced white neighbors would panic and start fleeing, often encouraged by opportunistic house-flippers. Property values would plummet, tax revenues would decline, and the cycle of neighborhood deterioration would begin. Today, black residents of these depressed neighborhoods rarely make enough money to move anywhere "nicer." The cycle continues.

Every piece of this story is, on its own, true. It all happened. Most of it still happens. But, as historian Richard Rothstein argues in his magisterial new book The Color of Law, the story is radically incomplete and lays the primary blame at the wrong doorsteps. Rothstein doesn't let individual or neighborhood prejudice off the hook, nor does he deny the major role played by present-day income inequality. He insists, though, that contemporary segregation, far from being de facto or accidental, would not have come to exist without active encouragement by government: local, state, and—most of all—federal.

The government policies Rothstein catalogs have all been documented and linked to segregation by other historians, but they have never been marshaled so comprehensively or with such rhetorical force. The Color of Law is that rarest of books: a detailed policy history powerful enough to shape not only your opinion but also your daily experience of the world.

The first major chapter in the history of government-imposed segregation came during the Depression, when the New Deal Public Works Administration started building housing projects for the lower middle class. These projects were segregated as a matter of policy. White projects could only be built in officially designated white neighborhoods, and black projects in officially designated black neighborhoods. Previously, many lower-middle-class neighborhoods had been racially integrated, a possibility that the PWA policy did not recognize. In multiple cities, integrated neighborhoods were simply razed to the ground.

The private market was nearly as segregated. Most local governments used zoning schemes intentionally designed to separate the races. A 1917 Supreme Court decision made such practices illegal, but it was easy enough for municipalities to ignore the law, or find workarounds that targeted race without using racial language. The federal government helped: A presidential committee of outspoken segregationists in the Harding administration published a manual of best zoning practices obviously designed to help whites keep their neighborhoods white.

Crypto-racist zoning was powerful, but imperfect. It couldn't stop well-off blacks who had fought their way into the professional classes from trying to move into middle-class white neighborhoods. That would require a more substantial intervention: a fundamental reshaping of the American housing landscape.

Before the 1930s, it was almost impossible for middle-class renters to purchase homes. Hoping to encourage them—home ownership was thought to inoculate citizens against communism—the federal government created mortgage-support programs like the Federal Housing Administration. The FHA insured bank mortgages, making them accessible to large swathes of the middle class for the first time. But in order to qualify for FHA protection, a house had to be in a "low-risk" neighborhood. And in order to be deemed low-risk, a neighborhood had to be entirely white. Mere proximity to a black neighborhood could be disqualifying. Neighborhoods were rewarded by the FHA for segregated schools; for restrictive neighborhood covenants banning future sales to non-whites; and for highways, boulevards, and other physical barriers that discouraged interracial mingling. Most favored of all were houses that were outside of racially mixed cities altogether, in new suburban subdivisions that could be guaranteed all-white from the start.

Therefore, with extremely rare exceptions, only white Americans were in a position to accrue home equity—a reserve they could use to weather financial storms without moving, to fund their retirements, or to leave an inheritance to their children. Black Americans, by contrast, were increasingly forced into crowded neighborhoods and put at the mercy of slumlords and predatory lenders. Even after the discriminatory policies that had created these divisions ceased to exist, the divisions remained. Black households have less family wealth, which in America tends to mean less education, less access to work, less income, and less freedom to live where you please.

For Rothstein, this is about more than setting the record straight. If contemporary segregation is traceable to government initiatives, he says, then it calls for a government remedy—not just morally, but legally. His case rests on the Thirteenth Amendment, which abolished slavery, and on the 1866 Civil Rights Act, which prohibited actions that treated former slaves like second-class citizens. Crucially, the law explicitly mentions housing discrimination. On Rothstein’s reading, this means that government is legally obligated to fight segregation.

As recently as 2007, Supreme Court Chief Justice John Roberts expressed his official opinion that housing segregation was the consequence of private discrimination, not law or government policy. In 2015, the Obama administration instated a new rule that required municipalities across the country to gather statistics on segregation and formulate plans to fight it. As this issue goes to press, it seems certain the Trump administration will axe that requirement. (In Rothstein's estimation, it was unlikely to succeed anyway.)

In the end, he offers a suggestion as depressing as it is inspiring: literal textbook reform. Almost no American schoolchildren learn that segregation has been government policy. Standard textbooks elide the issue, stressing instead the individual roles played by our regrettably prejudiced ancestors. Some future Supreme Court justice is studying American history right now. What is she learning? Maybe it's time to start paying closer attention.