Kenneth A. Sweder, BridgeTower Media Newswires
In the stunningly revelatory book, “The Color of Law: A Forgotten History of How Our Government Segregated America,” Richard Rothstein shows that it was primarily the “scores of racially explicit laws, regulations and government practices which combined to create a nationwide system of urban ghettos surrounded by white suburbs.”
He convincingly debunks the commonly held belief in the myth of de facto segregation — the myth that our overwhelmingly white suburbs and overwhelmingly African-American concentrations in urban areas resulted from private preferences and economic circumstances, rather than from government action that was de jure segregation created by state action in violation of the Constitution.
Rothstein does not deny the non-governmental factors that have contributed to our residential housing segregation — private prejudice, “white flight,” real estate “steering,” bank redlining, income differences and self-segregation. But he argues and shows that these private practices were a smaller part of the equation, which would have had far less opportunity for expression, but for the action of our federal, state and local governments.
The de facto segregation myth, according to Rothstein, has not only been almost universally accepted by liberals and conservatives alike, but by the U.S. Supreme Court itself. The central premise of the book is that the Supreme Court rulings from the 1970s to the 2007 decision written by Chief Justice John G. Roberts Jr. were wrong in finding that the residentially based racial segregation in schools under attack in those cases had no constitutional remedy because it resulted from “societal discrimination” and was “not traceable” to the government’s own actions.
The policies and practices detailed by Rothstein show such residential segregation to be not merely “traceable” to government action, but the direct result of it. The actions of the Federal Housing Authority and the Veterans Administration in particular were, from today’s vantage point, simply astonishing. These federal agencies, from the 1930s into the 1960s, engaged in the kind of naked racial residential discrimination throughout the entire country, which is generally associated only with the Jim Crow state laws of the Deep South.
Beginning in the 1940s and 1950s, the movement of many of our working class and middle-class families from the cities to newly created suburbs in which they could own their own inexpensive single-family homes was encouraged and enabled by the FHA and the VA. They provided buyers of homes in approved projects with low-cost, federally guaranteed or insured mortgages.
The approval of the plans for such subdivisions by the FHA and VA is what allowed the developers to obtain the financing to build them. The FHA, whose requirements were followed by the VA, had a whites-only requirement for approval of a subdivision. It not only refused approval, through its appraisal process, for racially mixed neighborhoods, but even for white neighborhoods near black ones that might possibly integrate in the future.
Rothstein contends that the “FHA suburbanized the entire nation on a whites-only basis …” and makes a compelling case for that contention.
He explores the various other ways in which governmental action enabled and created racial residential segregation throughout the country. Of note were the ubiquitous restrictive covenants.
Covenants in deeds prohibiting resale to African-Americans were recommended and frequently demanded by the FHA and the VA, encouraged by many local governments, and enforced by the courts.
It was not until 1949 that the Supreme Court, with three justices recusing themselves because of the restrictive covenants in their own deeds, held that enforcement by the courts of such covenants was state action in violation of the 14th Amendment.
And it was not until decades later that various federal and state agencies stopped trying to circumvent that ruling; the covenants themselves were found to violate the Fair Housing Act of 1968; and the recording of such deeds was found to constitute state action in violation of the Constitution.
Rothstein makes his case through a series of chapters such as: “If San Francisco, Then Everywhere” (dealing with the FHA and the VA); “Public Housing, Black Ghettos”; “Racial Zoning”; “Private Agreements, Government Enforcement”; “White Flight”; “State Sponsored Violence”; “Suppressed Incomes”; “Considering the Fixes”; and others.
This is a fascinating book. Some of the practices and actions of the government will be eye-opening, even to many of us who believe we are well-acquainted with the history of our residential segregation.
Rothstein’s presentation is straightforward and non-polemical. For the most part, he simply lets the facts speak for themselves, putting them in context and explaining their consequences, including the long-term effects these policies had on particular African-Americans families.
It is accessible to non-lawyers, without written legal citations in the 239 pages, but is of particular interest to lawyers, with an additional 50 pages of notes containing the sources and citations for the text.
Rothstein’s powerful conclusions follow directly from the evidence he has marshalled. He acknowledges that most of the racially and explicit government policies and practices which kept African-Americans exploited and geographically separate are now off the books. But they have never been remedied and their consequences still endure, helping to permanently define our “racial living arrangements.”
These governmental actions largely account for the tremendous wealth gap between African-American and the white families that have been able to pass on to their own families the appreciated value of their suburban homes, which have now become mostly unaffordable for working and lower middle-class families. The government policies that pushed African-Americans into poor and unhealthy urban areas with distinctively more limited educational opportunities have also persisted through generations.
Rothstein believes that, whether or not our own ancestors were involved or “bore witness” to the segregation of our neighborhoods, it was our government that created that segregation and that must craft the remedies for the disadvantages still being suffered on account of such governmental action.
He does not believe that those remedies, some of which he suggests and acknowledges will be incomparably difficult, will come from litigation. Rather, he thinks that there must be a national consensus that leads to legislation. That will not happen, he opines, until Americans understand that we created a system of unconstitutional, state-sponsored, de jure segregation and develop a sense of outrage about it.
Read this book. You will share in that sense of outrage.
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Kenneth A. Sweder practices at Sweder & Ross in Boston.
