The Color of Law: The Forgotten Story of How Our Government Segregated America

By Richard Rothstein

Liverlight

This article appears in the Summer 2017 issue of The American Prospect magazine. Subscribe here.

Government action consigning African Americans to separate and inferior housing has damaged not only their prospects for residential accommodations; it has also harmed their prospects for financial accumulation, access to employment, educational advancement, and social acceptance. The housing crises imposed upon blacks by government and other forces have been studied and explained by commentators for decades with a sobering repetitiveness. In 1967, the Report of the National Advisory Commission on Civil Disorders (the Kerner Commission) famously declared that “[w]hat white Americans have never fully understood—but what the Negro can never forget—is that white society is deeply implicated in the ghetto. White institutions created it, white institutions maintain it, and white society condones it.”

Twelve years later, in a wonderfully comprehensive law review article revealingly titled “Apartheid in America,” James A. Kushner showed how, to a large extent, residential “racial isolation is a result of government policies.” In 1993, in American Apartheid, Douglas S. Massey and Nancy A. Denton argued that “racial segregation—and its characteristic institutional form, the black ghetto—are the key structural factors responsible for the perpetuation of black poverty.” Residential segregation, Massey and Denton maintained, “is the institutional apparatus that supports other racially discriminatory processes and binds them together into a coherent and uniquely effective system of racial subordination.” Arnold R. Hirsch diagnosed the pathology of residential segregation in post–World War II Chicago in Making the Second Ghetto: Race and Housing in Chicago, 1940-1960, while Thomas J. Sugrue did the same for Detroit in The Origins of the Urban Crisis: Race and Inequality in Postwar Detroit.

In A Way Out: America's Ghettos and the Legacy of Racism, Owen Fiss described the ghetto as “more than a place where the underclass happens to live. It is a social structure that concentrates and isolates the most disadvantaged and creates its own distinctive culture, and thus is integral to the perpetuation of the underclass. It is the paramount mechanism through which a historically subordinated group continues to be kept far beneath others in terms of wealth, power, and living standards.” Indicting governments at all levels, Fiss contends that “for the better part of the twentieth century … the state played an important role in creating and maintaining the ghetto, and is thus duty-bound to use its powers to remedy the present-day consequences of that action.”

Arthur S. Siegel/Library of Congress

An instructive new participant in this tradition is The Color of Law: A Forgotten History of How Our Government Segregated America. In it, Richard Rothstein, a research associate at the Economic Policy Institute (and occasional Prospect contributor), documents the predominance of governmental action in the baleful skein of influences that have produced racial residential separateness and inequality. Rothstein is careful to distinguish between the actions of private parties and the actions of government officials because, under the “state action doctrine,” it is only the latter that triggers the federal Constitution’s Fifth and Fourteenth Amendments, the provisions that require the federal government and the states to provide to all persons due process and the equal protection of the laws. A private party who discriminates against someone racially may commit an infraction under the common law or under state or federal statutory law. But that private party has not violated the Fifth or Fourteenth Amendments, since the Supreme Court has interpreted them as protecting persons only against governmental action. Chief Justice John Roberts recently averred, for example, that “[t]he distinction between segregation by state action and racial imbalance caused by other factors has been central to [the Supreme Court’s] jurisprudence. … Where [racial imbalance] is a product not of state action but of private choices, it does not have constitutional implications.” Rothstein demonstrates that blacks’ racial isolation and deprivation in housing is mainly attributable to state action and thus properly seen as an unconstitutional blight that the government is obligated to remedy. The Color of Law can be read as a rebuttal to the widespread assumption that racial separation in housing is mainly attributable to forces wholly independent from governmental policy.

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ROTHSTEIN VIVIDLY catalogues the ways in which governments have constricted the residential choice of black Americans. Early in the 20th century, certain cities—Baltimore was the first—enacted ordinances that aimed to create racially homogeneous neighborhoods. Blacks were prohibited from moving into areas where whites predominated, while whites were prohibited from moving into areas where blacks predominated. In 1917, in Buchanan v. Warley, the Supreme Court invalidated Louisville, Kentucky’s racial zoning ordinance as an infringement on property rights. But some cities, Rothstein notes, just ignored Buchanan.

Another tool deployed to untangle racially mixed neighborhoods and to compel racial separateness was the racially restrictive covenant—a contract in which parties promise to abide by provisions that forbid certain sorts of people from purchasing or occupying covered properties. A covenant in Daly City, California, declared

The real property above described … shall never be occupied, used or resided on by any person not of the white or Caucasian race, except in the capacity of a servant or domestic employed thereon as such by a white Caucasian owner, tenant, or occupant.

Racially restrictive covenants blanketed thousands of neighborhoods across the nation.

These devices empowered private bigotry to be sure. But they also advanced the aims and manifested the power of public officials. “Government at all levels,” Rothstein observes, “became involved in promoting and enforcing the covenants.”

In 1934, when President Franklin Roosevelt's Federal Housing Administration (FHA) designed underwriting manuals to guide appraisers in determining which properties were eligible for government-backed mortgages, it determined that the presence of racially restrictive covenants were a positive sign of lowered risk. Valorizing all-white communities, the FHA applauded racially restrictive covenants for halting the “infiltration” of “inharmonious” racial groups. When the FHA collaborated with developers in building housing for defense industry workers during World War II and then, under the Veterans Administration, for veterans, it often required racially restrictive covenants in the deeds to the properties sold. In St. Louis, for example, to obtain FHA-sponsored financing for the suburban community he sought to build, a developer was made to include language in deeds stating that “no lot … shall be sold, leased, rented or occupied by any other than those of the Caucasian race.”

What happened to realtors who fought the sway of restrictive covenants? State certification boards disciplined them for unethical conduct. What happened to developers who eschewed restrictive covenants so that African Americans might be permitted to enjoy the benefits of new, affordable housing? Government agencies cut them off from funding and harassed them with adverse decisions regarding variances and other routine requests. What happened to blacks who occupied properties notwithstanding restrictive covenants? They were hauled by white neighbors into courts in which judges assessed damages against them or ordered them evicted from properties they had bought. In 1947 in Los Angeles, a judge jailed a black man who refused to leave the house he had purchased.

In 1948 in Shelley v. Kraemer (a St. Louis case) and Hurd v. Hodge (arising from Washington, D.C.), the Supreme Court held that it was unconstitutional for judges to empower private prejudices by ousting people from properties they had bought in defiance of racially restrictive covenants. Five years later in Barrows v. Jackson, a case arising from Los Angeles, the Court ruled that it was unconstitutional for judges to enforce racially restrictive covenants through the award of money damages. Shelley and its progeny, however, by no means ended governmental complicity in anti-black housing discrimination. Two weeks after the Court announced Shelley, an FHA commissioner declared that that decision would “in no way affect the programs of this agency,” adding that it was not “the policy of the Government to require private individuals to give up their right to dispose of their property as they [see] fit, as a condition of receiving the benefits of [federal assistance].”

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Governments continued to team up with private parties to exclude blacks, on an expressly racial basis, from housing opportunities and, even worse, to remove them from old housing to make way for new housing for whites only.

New York City, for example, collaborated with the Metropolitan Life Insurance Company in creating a 9,000-unit housing complex, Stuyvesant Town. The city cleared 18 square city blocks, razing a low-income neighborhood that had been racially mixed, and granted Metropolitan Life a 25-year tax abatement even though the developer stipulated that the housing would be available only to whites. Despite Shelley, courts refused to intervene. The state of New York subsequently prohibited such deals, but the consequences of past misdeeds linger. Rothstein notes that according to the 2010 census, only 4 percent of Stuyvesant Town residents are black in a metropolitan area that is 15 percent African American.

Governments have deployed other means of racial purification and monopolization. Rothstein relates the plight of a black couple in 1959 who attempted to build a house in a white town in Missouri. Upon discovering that the couple was black, whites offered to purchase the property (reprising a scene from Lorraine Hansberry's classic play A Raisin in the Sun, which dramatized a similar attempted buyout in a white Chicago neighborhood). After the black couple demurred, town officials seized the property pursuant to eminent domain, claiming that the land was needed for a park.

In numerous cities, officials eradicated black neighborhoods by demolishing them for purposes of “slum clearance” or highway construction. Although these campaigns of “Negro removal” were notorious and deeply resented among African Americans, they often proceeded without much resistance or documentation. An exceptional report by the New Jersey attorney general's office in the 1960s casts light on what was, unfortunately, a widespread injustice. Commenting on the destruction of 3,000 housing units in Camden, the report remarked that it was “obvious from a glance at the … transit plans that an attempt is being made to eliminate the Negro and Puerto Rican ghetto areas by … building highways that benefit white suburbanites, facilitating their movement from the suburbs to work and back.”

AP Photo/Sam Myers

Rothstein rightly emphasizes how “police-protected violence” has long been used to exclude blacks from certain neighborhoods. He tells the story, for example, of a black Navy veteran, Wilbur Gary, who bought a home in 1952 in a suburb outside of Richmond, California. Soon after the Gary family arrived, they were met by a mob of 300 whites who shouted epithets, hurled bricks, and burned a cross on the lawn. For several days the local police, sympathizing with the mob, refused to intervene—deliberate inaction that deprived the Garys of the equal protection of the law. The same thing happened to another black veteran, Bill Myers, when he moved his family into Levittown, Pennsylvania. While hundreds of white protesters pelted the Myers family with rocks, police stood by idly. “What the Gary and Myers families experienced,” Rothstein observes, “was not an aberration. During much of the twentieth century, police tolerance and promotion of cross-burnings, vandalism, arson and other violent acts to maintain residential segregation was systematic and nationwide.”

Remarkably, victims of racially motivated violence found themselves prosecuted by state authorities. When Harvey Clark, an African American bus driver, rented an apartment in Cicero, Illinois, police prevented him and his family from moving in. When a judge ordered the police to desist, a white mob of thousands invaded the apartment, setting the family’s belongings ablaze. No one was arrested. But soon thereafter, Clark and the white landlady who rented the apartment to him were arrested on charges of inciting a riot and conspiring to lower property values. These episodes, Rothstein makes clear, represented more than stray eruptions of racism; they represented a pervasive risk that discouraged countless blacks from even considering living in locales deemed to be off-limits.

The Color of Law updates the history of residential racial segregation, relates it to contemporary outbursts of racial enmity, particularly the alienation between blacks and police that is so evident in many poor African American neighborhoods, and humanizes the consequences of racial division in housing. He recounts the stories of individuals who have been harmed and movingly describes unhealed, recurrent injuries. He details, for example, how housing segregation has made black workers spend more time and money on commutes made longer by segregation that disabled them from securing housing near their workplaces. Rothstein introduces the reader to hardworking black people who continue to suffer disadvantage because their “parents and grandparents were denied participation in the equity-accumulating boom of the 1950s and 1960s.” He simultaneously brings home the reality of white privilege, a concept that the right has, alas, been all too successful in discrediting. Rothstein delineates how, unencumbered by the historical burdens blacks carry, “white families are more often able to borrow from their home equity, if necessary, … send their children to college, retire without becoming dependent on those children, aid family members experiencing hard times, or endure brief periods of joblessness without fear of losing a home or going hungry.”

ROTHSTEIN'S FOCUS ON segregation in the eras of the New Deal, World War II, and the postwar period is a useful contribution to the ongoing debate over reparations. Many reparationists stress the horrific atrocity of enslavement in making the case that the United States ought to do something dramatic to compensate African Americans, or at least those with a plausible claim of ongoing deprivation. In The Case for Black Reparations, however, Boris Bittker urged reparationists to focus more on the wrongs of the Jim Crow era than the slavery era. To concentrate on slavery, he wrote, “is to understate the case for compensation, so much so that one might almost suspect that the distant past is serving to suppress the ugly facts of the recent past and of contemporary life.” Foes of reparations note the obvious fact that all of the slaves and slave-masters are long dead. But millions of black Americans directly harmed by state-enforced segregation remain alive, as do millions of white Americans directly privileged by racially discriminatory governmental policies.

Focusing on segregation underscores that the wrongs in need of righting are not antiquarian misdeeds; they are relatively recent injustices whose awful layers we are still in the process of discovering.

Rothstein's final chapter, “Considering Fixes,” reviews some of the policies undertaken or proposed to prevent, deter, and redress fresh racial discrimination in housing markets and to rectify the effects of past racial wrongs. It is the least-developed part of The Color of Law. Rothstein writes, “It is not difficult to conceive of ways to rectify the legacy of de jure segregation.” He is wrong. It is difficult to conceive of efficacious and plausible means by which to redress the huge, complex, and ever-evolving problem that Rothstein vividly depicts. Overcoming that intellectual obstacle is a mission on which progressive analysts should be embarked, especially at this Trumpian moment during which, in many locales, they are exiled to the political wilderness. Having a decent sense of shame and guilt rooted in an awareness of our ignominious history is essential. So, too, is having a sense of generosity and a desire to assist in creating a more just society. Essential, as well, however, is careful, knowledgeable, wise planning.

Rothstein writes that we might contemplate the following:

Considering that African Americans comprise about 15 percent of the population of the New York metropolitan area, the federal government should purchase the next 15 percent of houses that come up for sale in Levittown at today's market rates (approximately $350,000). It should then re-sell the properties to qualified African Americans for $75,000, the price (in today's dollars) that their grandparents would have paid if permitted to do so. The government should enact this program in every suburban development whose construction complied with the FHA's discriminatory requirements.

Rothstein avers that he presents this idea “not as a practical proposal but only to illustrate the kind of remedy that we would consider and debate if we disabused ourselves of the de facto segregation myth.” Rothstein has disabused me of that myth, the fiction that racial separateness springs mainly from non-official sources, including causes that, in the words of one Supreme Court justice, are “unknown and perhaps unknowable.” Rothstein convinces me that racial discrimination facilitated by government—de jure segregation—has played the major role in constructing the residential crisis that ensnares so many African Americans. I wish, though, that Rothstein had been more deliberate in educating me about the reform he posits. How much would it cost? What sector of the African American population would be able to take advantage of it? What objections are likely to be voiced and what are the best responses?

Policy prescription, however, is not the main mission of Rothstein's enterprise. His main mission is identifying and dramatizing a neglected feature in the construction of American racial injustice: governmental complicity in racial residential exclusion, isolation, and deprivation. In The Color of Law, he accomplishes that mission ably.