The Color of Law emphasizes that housing segregation was deliberate U.S. policy


by Cynthia Price
Legal News

In a lecture last Wednesday, Richard Rothstein, author of the 2017 book The Color of Law: A Forgotten History of How Our Government Segregated America, said that he had no idea what was in store for him when he began research into the causes of so much racial housing segregation in the United States.

Rothstein, currently a Senior Fellow at the Haas Institute, University of California, Berkeley School of Law, spent most of his career delving into the education system and how prevailing education policy (culminating in No Child Left Behind) failed to alleviate the racial disparities within that system. (He was National Education Columnist for The New York Times from 1999 to 2002.)

His critique of such policy was that no amount of incentivizing teachers to work harder and improve scores on standardized testing can resolve the disadvantages that young people of color bring with them into the classroom.

“Take, for example, asthma. African-American children have asthma at four times the rate of other children. They live in more polluted neighborhoods and more deteriorated buildings. Difficulty breathing is going to keep them up at night, and they’re likely to come to school drowsy... If you have two groups of children and one group has a higher rate of asthma than the other, no matter how high teacher expectations are, their achievement is going to differ. Well-
rested children are going to do better than drowsy children,” Rothstein said.

“And that can also result from lead poisoning or stress from parental insecurity or homelessness. And I realized something that I should have recognized earlier, that if every child in the school has either asthma or lead poisoning or stress, how can that school possibly achieve the milestones expected?”

The path of his realization led to his conclusion about why there are such wide gaps: segregated schools result from segregated neighborhoods.

But, he told the packed house at the Wealthy Theatre, he had more or less assumed as many people do, that the disparity was the result of “de facto segregation:” personal choice and market factors that led to people of low income and people of color being isolated in the worst neighborhoods.

So he set out to investigate some of what he had heard on the matter.

“In 2007 I read the Supreme Court case that involved some very minimal efforts of school districts in Seattle and Louisville, Kentucky, to desegregate. Students could go to any school they wanted, but the black child would be given some preference. The Supreme Court said this program violated the Constitution because you couldn’t take race into consideration. Chief Justice John Roberts wrote that schools are segregated because neighborhoods are, but went on to say that the neighborhoods are segregated de facto, through self-preference, etc. And if you have de facto segregation, there’s nothing that you can do and nothing that you can be permitted to do,” Rothstein said.

He also recalled reading about a case where a Caucasian man in an all-white neighborhood had an African-American friend who wanted to move there and had the means to do so, but had been denied the opportunity to purchase a house. So the white man bought the house on behalf of his friend, but when the black man moved in, an angry mob surrounded the house, throwing rocks and eventually fire-bombing the house. Police did not intervene to stop it.
The aftermath of this was that the white purchaser received a 15-year sentence for sedition, and no one in the crowd who destroyed property was held accountable.

“I said to myself, this doesn’t sound much like de facto segregation if the courts are being used to enforce racial boundaries,” Rothstein explained, and thereafter began the journey that resulted in The Color of Law.

As Rothstein, also a  Distinguished Fellow of the Economic Policy Institute and a Senior Fellow, Emeritus at the Thurgood Marshall Institute of the NAACP, discovered, this was not an isolated incident. Policy at all levels, but particularly national policy, has reinforced, indeed mandated, a system of discrimination against African-Americans in housing that is very difficult to undo.

He said that there are many policy instances detailed in the book, but at the Wealthy Theatre presentation ­– part of the Calvin College Department of Sociology and Social Work’s Bouma Lecture Series, co-sponsored by the Inner City Christian Federation ­– Rothstein concentrated on urban development housing and the Federal Housing Authority loan guarantees.

Rothstein noted that the original purpose of public housing projects during the New Deal was to serve an influx of workers who could pay for them.  A population shift to fill the jobs being created in cities meant that housing stocks were stretched, so the government set out to create affordable housing. Prior to that, when transportation patterns required large numbers of workers to be near the factories where they worked, Rothstein notes, there was initially less segregation in many cities. He cited the example of the famous African-American poet Langston Hughes, who grew up in an integrated neighborhood in Cleveland and had friends of all colors and creeds.

But at its inception, the paid public housing was segregated, with one development for white people, one for people of color.  Devious political maneuverings by foes of any kind of public housing (who considered it socialist) resulted in cynically killing efforts to mandate that the housing be integrated. But as the highway system and other infrastructure changes encouraged factory and business development outside the cities, the white public housing structures had more and more vacancies, and eventually the government subsidized the rentals in public housing projects. At that point they were opened up to all races.

In the meantime,  “white flight” had begun. There were no barriers for white people to move to suburbs, but developers wanting to create middle class housing faced a challenge in raising the capital. The new Federal Housing Authority insured those developers’  loans, but they explicitly precluded housing developments which sold to African-Americans. “There was nothing hidden about it - it’s forgotten but it was not hidden,” Rothstein said. “They required developers to place a clause saying that they couldn’t sell to African-Americans in the deed; it was explicit and not the result of local bureaucrats or real estate people. The manual the government gave out stated you couldn’t recommend a development for federal insurance if it was going to be integrated in order to ‘protect’ the banks from being at risk.

“These policies are so powerful they still determine the racial segregation patterns we have,” Rothstein said.

He added that The Color of Law is light on policy recommendations, though it contains a few, because he would prefer to see a national conversation about solutions.

But, in answer to the question of a woman who had been involved in the civil rights movement, Rothstein said that, based on his experiences particularly since writing the book, he is much more optimistic about the likelihood of such a conversation in the current climate, when we have gotten away from the self-image of a “post-racial” society.

The afternoon lecture preceded an evening New Urbanist Film Festival, which addressed a variety of daunting challenges faced by urban areas.


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