Thoughts on The Color of Law

Richard Rothstein's recent book The Color of Law looks at the history of racism in US housing policy. It focuses especially on African Americans, and the constitutionality of these policies in light of the reconstruction era amendments that ended slavery.

Throughout the book, Rothstein makes a big point of the difference between de jure (in law) segregation and de facto (in fact) segregation. The purpose of the book (belied in its subtitle: "A forgotten history of how our government segregated America.") is to remind us that residential segregation did not just happen because private citizens expressed discriminatory preferences. Instead, he lays out the gory details of how government at all levels — through laws, official policies, financing terms, and officially sanctioned lack of enforcement — has enacted de jure segregation for more than a century. This has often included creating and enforcing segregation where it did not previously exist, in the West, and in the northern industrial centers as successive waves of migration from the South took place in the first half of the 20th century. He argues that because this segregation was perpetrated by the government, with the full force of law, we have a constitutional obligation to ameliorate the harm it has done to generations of African Americans.

The book felt kind of like a hybrid between Michelle Alexander's The New Jim Crow (about successive & evolving systems of black subjugation after the end of slavery, especially drug-war mediated mass incarceration) and Kenneth T. Jackson's Crabgrass Frontier (a history of suburbanization in the US). One of the main themes in The New Jim Crow is the remarkable adaptability of our systems of race-based social control. We outlawed slavery, but just a few decades later, Jim Crow was in full force, disenfranchising blacks throughout the south. The Civil Rights reforms of the 1960s outlawed many Jim Crow practices, but it wasn't long before the War on Drugs and mass incarceration had filled the gap.

Similarly, explicitly race-based zoning restrictions were ruled unconstitutional by the Supreme Court in 1917, but that was just the beginning of a long and ongoing journey. The sheer variety of tactics that have been used by government to enforce segregation over the last century is bewildering. Honestly, it's a testament to the power of creative public policy. When The Powers That Be agree something should get done, even if it's illegal and unfair, we can find a way to do it!

After explicitly racial zoning was outlawed, we turned to a mix of other policies that were just as effective. Economically exclusive zoning required larger lots and detached homes, which were unaffordable to most African Americans. To keep out educated middle-class black professionals, private deed restrictions and neighborhood covenants were used to prevent the sale or leasing of housing to non-whites. Those covenants were only ruled unenforceable by Shelley v. Kraemer in 1948. At the same time, federal mortgage subsidies enacted as part of the New Deal and the GI Bill explicitly required racist covenants. Developers building the first suburbs (like the famous Levittown on Long Island) could not get federal financing without making their new communities all white. Individuals could not get mortgages unless they were white — unless the entire neighborhood was required to be white. The strings we attach to public money are incredibly powerful. What if we'd done the opposite, and required FHA and VA loans in not-yet-segregated cities to only support integrated housing?

Even after racist private covenants were ruled unenforceable, these financing restrictions persisted until the Fair Housing Act of 1968 was passed, but by the late 1960s… it was kinda too late. Racially integrated cities had been hollowed out. Whites, and whites alone, were given a subsidized route into the suburbs, and as Crabgrass Frontier explains, those jurisdictions were distinct from the cities they orbit — in contrast to previous rounds of city growth through annexation. The suburbs pay their own taxes, and have little reason to  support the cities they surround. The federal government built the urban freeways connecting the suburbs to the city centers and regional employment opportunities. The placement of those freeways was often purposefully chosen so as to destroy communities of color — both lower and middle income. Largely as a result of this discriminatory access to the post-war housing boom, white and black household wealth has diverged dramatically the subsequent decades. As Rothstein points out:

The Fair Housing Act of 1968 prohibited future discrimination, but it was not primarily discrimination (although this still contributed) that kept African Americans out of most white suburbs after the law was passed. It was primarily unaffordability. The right that was unconstitutionally denied to African Americans in the late 1940s cannot be restored by passing a Fair Housing law that tells their descendants they can now buy homes in the suburbs, if only they can afford it. The advantage that FHA and VA loans gave the white lower-middle class in the 1940s and 1950s has become permanent

To make matters worse, just a few years later, as the power of unionized labor began to wane and the oil shocks of the 1970s hit, wages stagnated nationwide, making it harder for households that had not been given these advantages to climb out of relative poverty. And so it is that our schools are more segregated today than they were in 1968, and black home ownership rates have not changed in 50 years.

The chapter on "Local Tactics" felt especially familiar after the last few years of housing discussion in Boulder. In contrast to the impersonal nationwide systemic financial discrimination, local policy was often ad hoc, and creative in reacting to the efforts of particular groups. When occasionally someone trying to build integrated housing were able to get around the FHA & VA discrimination — say, by working with a progressive Quaker financier — the zoning of their property would suddenly be changed from residential to industrial.  Or the development impact fees on city sewer service would suddenly be increased by a factor of 10. During the period when school segregation was still a common practice, but explicitly racist zoning was not allowed, school boards would sometimes close all the black schools in one part of town, and all the white schools in another, and ensure that there was no good transportation link between them. Parents who wanted their kids to get an education had no choice but to move to a neighborhood where there was a school that would take their children.

In many cases, these policies were successfully challenged in the courts, but the process often took so long that by the time plaintiffs had won, it didn't matter any more. The property had been sold. The opportunity missed. The new factory jobs all filled, by the white folks who were able to move in nearby quickly. Justice delayed became justice denied.

I'm fatigued after close to 5 years of working to get shared housing legalized in Boulder. I'm in awe of the African Americans who have kept pushing the boundaries, challenging these laws and policies year after year, decade after decade, across generations.

It made me happy to see housing cooperatives come up several times throughout the book, repeatedly pushing for integrated housing options. They included a cooperative in the 1940s that was founded by musician Pete Seeger and others in Palo Alto (foiled by FHA's racist requirements) and a successful attempt by the UCLA student cooperative in 1939 to classify all co-op members as "servants" because of their weekly labor requirements (since black servants were allowed to live with their employers in their all-white Westwood neighborhood).

Rothstein focuses on the many government policies that had segregation as their clearly stated intent, but mentions many others that claimed to have segregation as an incidental side-effect — though often there were records of unofficial intent to segregate. The same thing comes up over and over again in The New Jim Crow. It made me think a lot about the difference between intent and impact.  At what point are impacts so disparate that the intent becomes immaterial?  How often do we tell ourselves a comfortable story about our public policy intent, and selectively ignore the impacts? How incidental is Boulder's whiteness & wealth? As the folks who were middle-class when they moved here 30 or 40 or 50 years ago die off or are bought out by a far wealthier cadre, how incidental will it continue to be?

We'd be foolish to think that the generations of evolving public policies that somehow always managed to result in residential segregation have come to an end. More than anything the book is a call to remember that we did this actively — it didn't just mysteriously happen. It was purposeful and predictable and premeditated. And because of the inter-generational wealth impacts, it won't undo itself — we will have to actively undo it.

What things are we doing today that we'll absolve ourselves of with the passive voice 50 or 100 years from now? Will we look back and say that climate change just happened? Or will it be an obvious act of volition? Will the universality of the consequences make it less helpful psychologically to frame climate change as a passive happening? There's no shortage of historical documentation that we — through the powers of government — actively segregated our cities over the last century, but that hasn't kept the dominant narrative from explaining it as an act of private individual prejudices, rather than something planned and executed with intention. Comforting, convenient stories are hard to resist.

The final chapter talks about how we might go about remedying the situation, but it's posed more as a thought experiment than a policy proposal — the author clearly thinks that remedies of appropriate magnitude are unthinkable so long as we are unwilling to acknowledge that we are explicitly responsible, collectively, for the outcome. But just looking at a few examples of what might be appropriate is enlightening.

The Levittown houses in New York sold for the equivalent of $75,000 (in today's dollars) when they were first built. Today they're worth around $350,000 each. Black families were prohibited from participating in that gain. A reasonable remedy might be for the public to purchase enough of homes at their current market value, and sell them to black families for $75,000, ensuring that the neighborhood has a racial makeup comparable to the New York metro area, which is about 15% African American. There are about 17,000 homes in Levittown, so we'd need to set aside 2,550 of them. Given the $275,000 per home difference between the purchase price and current value (in today's dollars), the total cost for implementing this improbable scheme would be about $700,000,000. And that would remedy the economic dimension of this injustice in only a single large subdivision. That's a tiny window into the magnitude of what we've done.

Clearly we did a particularly horrible thing in offering that economic opportunity to some people and not to others based on the color of their skin, perpetuating historical injustices going back hundreds of years. But even if everyone had had equal access to those homes in 1954, the increase in value — most of which I suspect is land value, not the buildings themselves — would still have created a windfall for the original buyers, that has to be extracted from the future, making the place economically exclusive. Housing can't be a good investment and affordable.

To give that economic opportunity to some and not others is unjust. To try and give it to everyone is a Ponzi scheme. Eventually someone will get left holding the bag. Probably black and brown Americans, if history is any guide.

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