Nina's Reading Blog

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The Color of Law: A Forgotten History of How Our Government Segregated America

Posted by nliakos on December 30, 2018

by Richard Rothstein (Liveright Publishing Corporation, a Division of W. W. Norton & Co., 2017)

Color of law refers to an act done under the appearance of legal authorization, when in fact, no such right existed. It applies when a person is acting under real or apparent government authority. The term is used in the federal Civil Rights Act, which gives citizens the right to sue government officials and their agents who use their authority to violate rights guaranteed by federal law.  <https://definitions.uslegal.com/c/color-of-law/> 

In this book, Richard Rothstein argues that segregated neighborhoods all over the United States resulted not from de facto segregation (incidentally, due to the decisions of millions of individual private home-buyers), but from de jure segregation: racist governmental policy. As such, it violates African-Americans’ constitutional rights under the Thirteenth, Fourteenth, and Fifteenth Amendments, and we now have the exceedingly difficult task of remedying the situation.

Chapter 1, “If San Francisco, Then Everywhere?” – examines how the federal government segregated the northern California city of Richmond during the Second World War. It looks in particular at the life of Frank Stevenson of Louisiana, who came to northern California to work in the shipyards and other war industries. Richmond, supported by the FHA, built whites-only housing for war workers; African-American workers were not permitted to take advantage of this housing and instead were forced to find shelter wherever they could. This usually meant sub-standard housing, over-crowding, and very long commutes.

The story of Ladera, where my aunt and uncle raised my two cousins, illustrates what happened in many places. A cooperative of mostly white Stanford faculty purchased a tract of land next to the campus, intending to develop it with affordable housing. But because there were a few African Americans in the cooperative, banks refused to lend them the money to develop the land because the FHA refused to insure the loans. The cooperative eventually admitted defeat, and the land was sold to a private developer, who built the whites-only subdivision where my relatives lived.

Chapter 2, “Public Housing, Black Ghettos”, tells the sorry story of public housing projects, originally conceived during the New Deal to house white people. Public housing was segregated from the beginning, and black people were only allowed to live in segregated housing, which was never adequate and, being separate, was never equal (after Brown v. Board of Education, the general counsel of the Housing and Home Finance Agency claimed that the decision was not applicable to housing).  As the suburbs were developed and white people moved out of public housing projects, black people were slowly permitted to move in; the projects were never built in majority-white communities to begin with, as it was easy for anyone who disapproved to stop construction. So after a while, public housing only existed in black communities, and only served black people–and served them poorly, with few services and poor upkeep.

Chapter 3, “Racial Zoning”, describes the development of Jim Crow in the South following the end of Reconstruction, as well as the increasing mistrust and hatred of African Americans which developed in other parts of the country. Woodrow Wilson, who grew up in the racist South, then segregated the federal workforce when he became president in 1913. Examples of early government-sponsored housing segregation include Baltimore, Atlanta, St. Louis, and many others. During this period, blacks were not permitted to live on majority-white blocks, and whites were forbidden to buy on majority-black blocks, so over time, these blocks, and later neighborhoods, became more and more segregated. Then the resulting majority-black neighborhoods were rezoned for industrial use, and they turned into undesirable, unhealthy, over-crowded, poorly served places–slums, where African-Americans were stuck.  The 1917 Supreme Court case, Buchanan v. Warley, ruled against racial zoning laws (not because the justices found segregation to be wrong but because they believed white owners should be able to sell to whomever they pleased) but was widely ignored.

Chapter 4, “Own Your Own Home”, examines the push by the Hoover administration to get white Americans to buy homes in the newly developed suburbs rather than rent them, subsidized by HOLC (Home Owners Loan Corporation), FHA, and VA loans, which were unavailable to African-Americans. Not only that, but the FHA refused to insure loans in African-American or integrated communities. If they could qualify for loans at all, African-Americans were eligible only for installment plans known as contract loans, which did not let the borrower accumulate equity and enabled the lender to evict a family for missing even a single payment. In this way, white people were on their way to accumulating wealth as their property values rose; African-Americans were excluded not only from white neighborhoods but from this opportunity to increase their worth. The discriminatory policies were clearly laid out in the FHA underwriting manual. Rothstein points out over and over that these and other indications of racist guidelines in government agencies constitutes a clear violation of African-Americans’ constitutional rights under the 13th and 14th amendments.

Chapter 5, “Private Agreements, Government Enforcement”, considers federal government tolerance of exclusionary practices such as restrictive covenants, which prohibited sales of homes in certain neighborhoods to people of color. Though these covenants were already illegal, neighborhood associations, realtors, and local governments figured out ways to get around the law. Those blacks who bought in segregated white areas were forcibly evicted. In 1948, another Supreme Court ruling, Shelley v. Kraemer, held that the enforcement of restrictive covenants by state courts to be unconstitutional. As with Buchanan, this decision was widely ignored as government at all levels continued to turn a blind eye to violations. For example, if covenants did not contain explicitly racial language but effectively excluded African-Americans from moving into majority-white areas, the FHA continued to approve loans for white buyers and to finance new segregated developments, while “redlining” other neighborhoods zoned for African-Americans where loans would never be approved.

Chapter 6, “White Flight”, is about the self-fulfilling prophecy that people of color moving into an area inevitably caused property values to decrease, and how unscrupulous speculators called “blockbusters” callously and deliberately panicked white homeowners into selling their properties at below-market prices so that the speculators could later sub-divide the properties and rent or sell them to African-Americans at inflated prices (because housing was at a premium in African-American neighborhoods, they routinely paid higher prices for comparable dwellings). If property values fell, it was due to the FHA’s prejudicial policies. Rothstein writes, “In the end, whites fled these neighborhoods, not only because of the influx of black families, but also because they were upset about overcrowding, decaying schools and crime. . . . But black contract buyers did not have the option of leaving a declining neighborhood before their properties were paid for in full–if they did, they would lose everything they’d invested in that property to date. Whites could leave–blacks had to stay.” (p. 97)

In Chapter 7, “IRS Support and Compliant Regulators”, Rothstein says that the IRS was complicit in the segregation of America because it continued to grant tax-exempt status to institutions (churches, universities, hospitals. . .) that “promoted residential segregation”. In addition, government regulators tolerated racial discrimination in the banks and businesses that they supervised. Many examples are given of church officials and others who actively promoted racial segregation, but the IRS routinely ignored these cases. Banks had discriminatory loan policies through much of the twentieth century, but the FDIC under Eric Cocke and others declined to intervene. Some discriminatory activities have persisted into the present century; for example, the preponderance of subprime mortgages in African American communities, which were the hardest-hit when the housing bubble burst in 2008. Homeowners of color who lost their homes were forced back into slums. Rothstein writes that “borrowers should have been more careful before accepting loans they could not understand or reasonably repay, but they were victims of a market that was not transparent–in some cases deliberately not so.”

Chapter 8, “Local Tactics”, focuses on “the extraordinary creativity that government officials at all levels displayed when they were motivated to prevent the movement of African-Americans into white neighborhoods.”  They denied access to public utilities, suddenly decided to zone housing sites for parks, built highways through and around African-American neighborhoods to isolate them, condemned properties, manipulated zoning designations, and more. Examples in California, Illinois, Pennsylvania, Missouri, Michigan, Florida, New Jersey, Texas, Georgia, and North Carolina support this claim.

Chapter 9, “State-Sanctioned Violence”, describes how white mobs rioted, burned crosses, vandalized homes, threatened bodily harm, firebombed homes and otherwise violently resisted African-American encroachment into segregated white areas while police looked on or actively aided and abetted the perpetrators. Rothstein pointedly remarks, “During the mid-twentieth century, local police and the FBI went to extraordinary lengths to infiltrate and disrupt liberal and left-wing political groups as well as organized crime syndicates. That they did not act similarly in the case of a nationwide terror campaign against African Americans who integrated previously white communities should be deemed, at the least, complicity in the violence.” (p. 148)

Chapter 10, “Suppressed Incomes”, considers all the governmentally-supported ways in which African-American incomes were kept low, resulting in less accumulation of wealth and a resulting inability to buy into the housing market. These included denial of access to free labor markets in the post-Reconstruction South, exclusion from most labor unions and subsequent inability to apply for many categories of jobs because they were not union members, discriminatory hiring practices during both the Second World War and the New Deal (e.g., the TVA, NRA, and CCC), keeping workers of color in menial positions without possibility of advancement (even when they had acquired skills in the  military that should have made them eligible for higher level jobs), lack of enforcement by the National Labor Relations Board and the Fair Employment Practices Committee (whose first chairman, Mark Ethridge, was an avowed segregationist–kind of like putting Scott Pruitt in charge of the EPA).  In some cases, African-Americans fought back, but the discrimination was so widespread that it was very difficult to make real progress against it. Furthermore, HUD over-assessed the value of African-American homes and under-assessed the value of white ones, effectively subsidizing the white homeowners on the backs of the black ones; and blacks routinely paid higher rents than whites, with the result that they needed more wage-earners per unit to pay the high rents, another factor in over-crowding.

Chapter 11, “Looking Forward, Looking Back”, contrasts the relative difficulty of desegregating public transportation and accommodations, workplaces, and voting with the more complex task of desegregating neighborhoods: “Ending de jure segregation of housing requires undoing past actions that may seem irreversible.” Reasons for this include multi-generational poverty (the concept of American upward mobility is a myth, but even more so in the African American than in the general population), injustices in the tax code (e.g., homeowners get tax breaks, but renters don’t), and federal subsidies for low-income housing that perpetuate segregation.

Chapter 12, “Considering Fixes”, suggests more or less feasible ways to get ourselves out of the mess we have created with de jure segregation (“Many of our serious national problems either originate with residential segregation or have become intractable because of it.”). First, Rothstein considers it imperative that all Americans understand the role that governments (federal, state, and local) have played in this debacle, starting from the history books our teenagers learn about our history from, two popular examples of which barely mention the government’s role in creating and sustaining our uniquely American form of apartheid. Other suggestions include a ban on zoning ordinances prohibiting apartment buildings in suburban neighborhoods, encouraging “inclusionary zoning” ordinances such as the one we have here in Montgomery County, Maryland; loss or decrease of homeowner tax deductions in communities that are not actively working to encourage integration; increased housing subsidies for lower income families that choose to move to integrated areas; and expanding the Section 8 voucher program. (“The housing subsidy that the federal government gives to middle-class [mostly white] homeowners is an entitlement; any homeowner with enough income to file a detailed tax return can claim a deduction both for property taxes and mortgage insurance. The government does not tell homeowners that only the first few who file can claim the deductions and the rest are out of luck because the money has been used up. But that is how we handle the Section 8 subsidy for lower-income [most African American] renters.” (p. 209) But Rothstein does not minimize the difficulty in setting right this enormous wrong that has been done in our name, by our elected and appointed officials, to a group of citizens whose only fault was to be of African descent.

Rothstein ends the last chapter as he began the first one: with the family of Frank Stevenson. He muses, “What might have become of these Stevenson grandchildren if their parents had grown up and attended school in an integrated Milpitas, not in a de jure segregated Richmond? . . . How much farther on the socioeconomic ladder would they have been able to climb if they had grown up in a well-educated household as a result of [their mother] and her sisters being permitted to attend a high school that was designed for students ‘who can profit from the academic program’, rather than one that instead offered manual training? How different might the lives of the Stevenson grandchildren have been were it not for the federal government’s unconstitutional determination to segregate their grandparents, and their parents as well? What do we, the American community, owe this family, in this and future generations, for their loss of opportunity? How might we fulfill this obligation?”

In the Epilogue, Rothstein opines that as a nation, we (whites) have deluded ourselves into thinking that we are not responsible for these patterns of segregation. He observes what might have been had government acted differently and promoted integration rather than segregation. He believes that before we can begin to remedy the problem, we must first accept responsibility for it.

Finally, in the “Appendix: Frequently Asked Questions:, Rothstein responds to some of the questions he has been asked since he began his research into this topic. For example, How can you hold people today accountable for what happened in the past? Why do you want to force people to integrate? Shouldn’t African Americans take responsibility for their own success? What about Hispanics and other minority groups who have suffered from racial prejudice? To each question, he gently but firmly reiterates his position that a great wrong has been done; we are responsible for that wrong whether or not we participated actively in it; and it is up to all of us to fix it as best we can.

This is an important book. Every American should read it! Certainly, it should be in the library of every Member of Congress, every Supreme Court justice, every federal and state judge, every state senator and delegate, every county executive and council member, and every mayor and city council member. To say nothing of the President, Vice President, and Cabinet members. (Not that this President would every read a book.)

N.B.: The current issue of the SPLC’s Teaching Tolerance magazine features an interview with Richard Rothstein entitled “Segregation by Design”. You can read it here.

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