A forgotten history: How our government segregated America

Published 7:23 am Thursday, January 4, 2018


Contributing columnist

Just in time for African-American History Month and long overdue to inform every middle school, high school and college American history course, comes “The Color of Law: A Forgotten History of How Our Government Segregated America,” a new book by Richard Rothstein, an expert on race, education and social policy at the Economic Policy Institute.

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The timing is also right for a rejoinder to the crusade to “Make America White Again” being mounted by Richard Spencer and other white supremacists and white nationalists.  Their claim is that every remedy attempted or advocated to right injustices suffered by African-Americans is an unearned benefit taken away from deserving white people.

The book is, in addition, a rejoinder to what Rothstein calls “the myth of de facto segregation.”  This myth claims that the causes of riots in places like Ferguson, Baltimore, Milwaukee and Charlotte in 2014 through 2016 were private decisions and practices such as white flight and redlining by lending institutions. Urban ghettos then are the products of accidents and misguided prejudice or perhaps of self-segregation, real estate steering and income differences. They are unintended consequences.

Rothstein, like The Atlantic writer Ta-Nehisi Coates, begs to differ. The cited private causes do have consequences, but our author is convinced that residential racial segregation, which underlies much of our society’s economic inequality, is “de jure segregation,” brought about by law and public policy. Working over an eight-year period starting in 2009, informed by a voluminous bibliography, documenting with 40 pages of end notes, he makes the case that what African-Americans suffered in the way of inferior housing and education and lack of meaningful job opportunities from Woodrow Wilson through FDR are consequences of governmental laws and unhidden public policies that segregated every metropolitan area in America and of governmental failure to enforce laws and regulations aimed at ending racial discrimination in housing. 

What is more, this resulting system of residential segregation is intentional.  

In 1866, the U.S. Congress passed a Civil Rights Act prohibiting actions “that perpetuated the characteristics of slavery,” and racial discrimination in housing was included. In 1883, the Supreme Court rejected this interpretation, denying that exclusion from housing markets could be “a badge or incident of slavery.” The protections of the Civil Rights Act were thereby dismissed for a century until, in 1968, the Fair Housing Act and another Supreme Court decision rejected the 1883 decision. 

Racial discrimination in housing was reinstated as an unconstitutional relic of slavery.  That didn’t mean that it stopped.  As recently as the financial crisis of 2008, one of the most troubling causes was the regulatory tolerance of banks’ “reverse redlining”—the excessive marketing of exploitative subprime mortgages in African-American and Hispanic neighborhoods.  

From the 1920s to today, Rothstein traces the violations of the Constitution and the Bill of Rights regarding residential segregation. For example, public housing during World War II was unavailable to African-American workers, who had to commute further to defense jobs that received lower pay than comparable jobs of whites. After the war, white people were often able to move up into the middle class while African-Americans continued to deal with blatant discrimination under Jim Crow laws.  

Whites were welcomed into suburbs that reacted violently to African-Americans who attempted to integrate their neighborhood. The real estate industry and the banking industry collaborated to steer the races away from each other.  

The litany of woes is long.   

• The federal government urged suburbs to adopt exclusionary zoning laws, thereby encouraging white flight.  

• The Federal Housing Association sponsored whites-only suburbanization. 

• State courts blessed private discrimination by ordering eviction of African-Americans barred by local association rules and restrictive covenants.  

• Churches, schools, and hospitals did not lose tax exempt status for promoting restrictive covenants.  

• Police sometimes even encouraged mob violence against desegregation attempts rather than make arrests.  

• State real estate commissions did not deny licenses to brokers who claimed an ethical obligation to impose segregation.  

• Federal and state highway planners used urban interstates to demolish neighborhoods and force residents deeper into ghettos.  

• Working class black families were trapped in lower-income minority communities.  

• The federal government spent billions on tax breaks for single-family suburban homeowners and failed to fund transportation networks adequately.  

• Toxic waste facilities were consistently located in predominantly Africa- American neighborhoods.  

In every instance, different actions by federal, state, and local government could have produced very different outcomes.   

Today’s Supreme Court under Chief Justice Roberts has regarded residential segregation as the product of private choices (remember “the myth of de facto segregation) not state action.  Therefore, residential segregation has no constitutional implications and government remedies are impermissible. For Rothstein, Roberts and his colleagues got their facts wrong, and government remedies should be required for this unconstitutional injustice.

Remedies are needed, but what should or can they be? Unlike voting rights and access to public accommodations, they can’t be legislated or forced. Doing nothing is unacceptable, but undoing the system of residential segregation will be “incomparably difficult,” according to the author.  Incentives can be offered, and initiatives can be taken, but we should not be naïve. Remedies are bound to be costly in some instances (effects on home prices, for example), and they can’t help but be imprecise in righting the wrongs for those actually wronged. 

If questions about the possibility and advisability of proposed remedies begin to multiply in the minds of readers, Rothstein anticipates many of them and provides a substantial appendix with responses to “Frequently Asked Questions.”

On the encouraging side, studies have shown that both white people and African-Americans favor integrated neighborhoods although they disagree on the desirable percentages for optimal integration. There is also a case to be made that white people are hurt by the system of segregation as well as African-Americans (for example, school quality in low-income neighborhoods, busing drawbacks and lack of diversity in workplaces too distant from predominantly African-American neighborhoods).   

For Rothstein, any remedies will remain inconceivable as long as people continue to accept “the myth of de facto segregation” as all-explanatory. Citizens need an accurate account of how we got to our current state of residential segregation — as Rothstein words it, “a shared understanding of our common history.” As matters stand, school textbook after school textbooks is not getting the story straight.  

The Color of Law speaks powerfully to conditions that a constitutional democracy should not ignore — and not a moment too soon.