State-Enforced Segregation And The Color Of Justice

Jim Crow was the descen­dant of Southern slav­ery. More shock­ing is the lega­cy of gov­ern­ment-enforced racism in the North.

Government action con­sign­ing African Americans to sep­a­rate and infe­ri­or hous­ing has dam­aged not only their prospects for res­i­den­tial accom­mo­da­tions; it has also harmed their prospects for finan­cial accu­mu­la­tion, access to employ­ment, edu­ca­tion­al advance­ment, and social accep­tance. The hous­ing crises imposed upon blacks by gov­ern­ment and oth­er forces have been stud­ied and explained by com­men­ta­tors for decades with a sober­ing repet­i­tive­ness. In 1967, the Report of the National Advisory Commission on Civil Disorders (the Kerner Commission) famous­ly declared that “[w]hat white Americans have nev­er ful­ly under­stood — but what the Negro can nev­er for­get — is that white soci­ety is deeply impli­cat­ed in the ghet­to. White insti­tu­tions cre­at­ed it, white insti­tu­tions main­tain it, and white soci­ety con­dones it.”

Twelve years lat­er, in a won­der­ful­ly com­pre­hen­sive law review arti­cle reveal­ing­ly titled “Apartheid in America,” James A. Kushner showed how, to a large extent, res­i­den­tial “racial iso­la­tion is a result of gov­ern­ment poli­cies.” In 1993, in American Apartheid, Douglas S. Massey and Nancy A. Denton argued that “racial seg­re­ga­tion — and its char­ac­ter­is­tic insti­tu­tion­al form, the black ghet­to — are the key struc­tur­al fac­tors respon­si­ble for the per­pet­u­a­tion of black pover­ty.” Residential seg­re­ga­tion, Massey and Denton main­tained, “is the insti­tu­tion­al appa­ra­tus that sup­ports oth­er racial­ly dis­crim­i­na­to­ry process­es and binds them togeth­er into a coher­ent and unique­ly effec­tive sys­tem of racial sub­or­di­na­tion.” Arnold R. Hirsch diag­nosed the pathol­o­gy of res­i­den­tial seg­re­ga­tion in post – World War II Chicago in Making the Second Ghetto: Race and Housing in Chicago, 1940 – 1960, while Thomas J. Sugrue did the same for Detroit in The Origins of the Urban Crisis: Race and Inequality in Postwar Detroit.

In A Way Out: America’s Ghettos and the Legacy of Racism, Owen Fiss described the ghet­to as “more than a place where the under­class hap­pens to live. It is a social struc­ture that con­cen­trates and iso­lates the most dis­ad­van­taged and cre­ates its own dis­tinc­tive cul­ture, and thus is inte­gral to the per­pet­u­a­tion of the under­class. It is the para­mount mech­a­nism through which a his­tor­i­cal­ly sub­or­di­nat­ed group con­tin­ues to be kept far beneath oth­ers in terms of wealth, pow­er, and liv­ing stan­dards.” Indicting gov­ern­ments at all lev­els, Fiss con­tends that “for the bet­ter part of the twen­ti­eth cen­tu­ry … the state played an impor­tant role in cre­at­ing and main­tain­ing the ghet­to, and is thus duty-bound to use its pow­ers to rem­e­dy the present-day con­se­quences of that action.”

Arthur S. Siegel/​Library of Congress

White ten­ants seek­ing to pre­vent blacks from mov­ing into a Detroit neigh­bor­hood erect­ed this sign in 1942.

An instruc­tive new par­tic­i­pant in this tra­di­tion is The Color of Law: A Forgotten History of How Our Government Segregated America. In it, Richard Rothstein, a research asso­ciate at the Economic Policy Institute (and occa­sion­al Prospectcon­trib­u­tor), doc­u­ments the pre­dom­i­nance of gov­ern­men­tal action in the bale­ful skein of influ­ences that have pro­duced racial res­i­den­tial sep­a­rate­ness and inequal­i­ty. Rothstein is care­ful to dis­tin­guish between the actions of pri­vate par­ties and the actions of gov­ern­ment offi­cials because, under the “state action doc­trine,” it is only the lat­ter that trig­gers the fed­er­al Constitution’s Fifth and Fourteenth Amendments, the pro­vi­sions that require the fed­er­al gov­ern­ment and the states to pro­vide to all per­sons due process and the equal pro­tec­tion of the laws. A pri­vate par­ty who dis­crim­i­nates against some­one racial­ly may com­mit an infrac­tion under the com­mon law or under state or fed­er­al statu­to­ry law. But that pri­vate par­ty has not vio­lat­ed the Fifth or Fourteenth Amendments, since the Supreme Court has inter­pret­ed them as pro­tect­ing per­sons only against gov­ern­men­tal action. Chief Justice John Roberts recent­ly averred, for exam­ple, that “[t]he dis­tinc­tion between seg­re­ga­tion by state action and racial imbal­ance caused by oth­er fac­tors has been cen­tral to [the Supreme Court’s] jurispru­dence. … Where [racial imbal­ance] is a prod­uct not of state action but of pri­vate choic­es, it does not have con­sti­tu­tion­al impli­ca­tions.” Rothstein demon­strates that blacks’ racial iso­la­tion and depri­va­tion in hous­ing is main­ly attrib­ut­able to state action and thus prop­er­ly seen as an uncon­sti­tu­tion­al blight that the gov­ern­ment is oblig­at­ed to rem­e­dy. The Color of Law can be read as a rebut­tal to the wide­spread assump­tion that racial sep­a­ra­tion in hous­ing is main­ly attrib­ut­able to forces whol­ly inde­pen­dent from gov­ern­men­tal pol­i­cy.

ROTHSTEIN VIVIDLY cat­a­logues the ways in which gov­ern­ments have con­strict­ed the res­i­den­tial choice of black Americans. Early in the 20th cen­tu­ry, cer­tain cities — Baltimore was the first — enact­ed ordi­nances that aimed to cre­ate racial­ly homo­ge­neous neigh­bor­hoods. Blacks were pro­hib­it­ed from mov­ing into areas where whites pre­dom­i­nat­ed, while whites were pro­hib­it­ed from mov­ing into areas where blacks pre­dom­i­nat­ed. In 1917, in Buchanan v. Warley, the Supreme Court inval­i­dat­ed Louisville, Kentucky’s racial zon­ing ordi­nance as an infringe­ment on prop­er­ty rights. But some cities, Rothstein notes, just ignored Buchanan.

Another tool deployed to untan­gle racial­ly mixed neigh­bor­hoods and to com­pel racial sep­a­rate­ness was the racial­ly restric­tive covenant — a con­tract in which par­ties promise to abide by pro­vi­sions that for­bid cer­tain sorts of peo­ple from pur­chas­ing or occu­py­ing cov­ered prop­er­ties. A covenant in Daly City, California, declared

The real prop­er­ty above described … shall nev­er be occu­pied, used or resided on by any per­son not of the white or Caucasian race, except in the capac­i­ty of a ser­vant or domes­tic employed there­on as such by a white Caucasian own­er, ten­ant, or occu­pant.

Racially restric­tive covenants blan­ket­ed thou­sands of neigh­bor­hoods across the nation.

Racially restric­tive covenants blan­ket­ed thou­sands of neigh­bor­hoods across the nation. These devices empow­ered pri­vate big­otry to be sure. But they also advanced the aims and man­i­fest­ed the pow­er of pub­lic offi­cials. “Government at all lev­els,” Rothstein observes, “became involved in pro­mot­ing and enforc­ing the covenants.”

In 1934, when President Franklin Roosevelt’s Federal Housing Administration (FHA) designed under­writ­ing man­u­als to guide apprais­ers in deter­min­ing which prop­er­ties were eli­gi­ble for gov­ern­ment-backed mort­gages, it deter­mined that the pres­ence of racial­ly restric­tive covenants were a pos­i­tive sign of low­ered risk. Valorizing all-white com­mu­ni­ties, the FHA applaud­ed racial­ly restric­tive covenants for halt­ing the “infil­tra­tion” of “inhar­mo­nious” racial groups. When the FHA col­lab­o­rat­ed with devel­op­ers in build­ing hous­ing for defense indus­try work­ers dur­ing World War II and then, under the Veterans Administration, for vet­er­ans, it often required racial­ly restric­tive covenants in the deeds to the prop­er­ties sold. In St. Louis, for exam­ple, to obtain FHA-spon­sored financ­ing for the sub­ur­ban com­mu­ni­ty he sought to build, a devel­op­er was made to include lan­guage in deeds stat­ing that “no lot … shall be sold, leased, rent­ed or occu­pied by any oth­er than those of the Caucasian race.”

What hap­pened to real­tors who fought the sway of restric­tive covenants? State cer­ti­fi­ca­tion boards dis­ci­plined them for uneth­i­cal con­duct. What hap­pened to devel­op­ers who eschewed restric­tive covenants so that African Americans might be per­mit­ted to enjoy the ben­e­fits of new, afford­able hous­ing? Government agen­cies cut them off from fund­ing and harassed them with adverse deci­sions regard­ing vari­ances and oth­er rou­tine requests. What hap­pened to blacks who occu­pied prop­er­ties notwith­stand­ing restric­tive covenants? They were hauled by white neigh­bors into courts in which judges assessed dam­ages against them or ordered them evict­ed from prop­er­ties they had bought. In 1947 in Los Angeles, a judge jailed a black man who refused to leave the house he had pur­chased.

In 1948 in Shelley v. Kraemer (a St. Louis case) and Hurd v. Hodge (aris­ing from Washington, D.C.), the Supreme Court held that it was uncon­sti­tu­tion­al for judges to empow­er pri­vate prej­u­dices by oust­ing peo­ple from prop­er­ties they had bought in defi­ance of racial­ly restric­tive covenants. Five years lat­er in Barrows v. Jackson, a case aris­ing from Los Angeles, the Court ruled that it was uncon­sti­tu­tion­al for judges to enforce racial­ly restric­tive covenants through the award of mon­ey dam­ages. Shelley and its prog­e­ny, how­ev­er, by no means end­ed gov­ern­men­tal com­plic­i­ty in anti-black hous­ing dis­crim­i­na­tion. Two weeks after the Court announced Shelley, an FHA com­mis­sion­er declared that that deci­sion would “in no way affect the pro­grams of this agency,” adding that it was not “the pol­i­cy of the Government to require pri­vate indi­vid­u­als to give up their right to dis­pose of their prop­er­ty as they [see] fit, as a con­di­tion of receiv­ing the ben­e­fits of [fed­er­al assis­tance].”

Governments con­tin­ued to team up with pri­vate par­ties to exclude blacks, on an express­ly racial basis, from hous­ing oppor­tu­ni­ties and, even worse, to remove them from old hous­ing to make way for new hous­ing for whites only.

Governments con­tin­ued to team up with pri­vate par­ties to exclude blacks, on an express­ly racial basis, from hous­ing oppor­tu­ni­ties and, even worse, to remove them from old hous­ing to make way for new hous­ing for whites onlyNew York City, for exam­ple, col­lab­o­rat­ed with the Metropolitan Life Insurance Company in cre­at­ing a 9,000-unit hous­ing com­plex, Stuyvesant Town. The city cleared 18 square city blocks, raz­ing a low-income neigh­bor­hood that had been racial­ly mixed, and grant­ed Metropolitan Life a 25-year tax abate­ment even though the devel­op­er stip­u­lat­ed that the hous­ing would be avail­able only to whites. Despite Shelley, courts refused to inter­vene. The state of New York sub­se­quent­ly pro­hib­it­ed such deals, but the con­se­quences of past mis­deeds linger. Rothstein notes that accord­ing to the 2010 cen­sus, only 4 per­cent of Stuyvesant Town res­i­dents are black in a met­ro­pol­i­tan area that is 15 per­cent African American.

Governments have deployed oth­er means of racial purifi­ca­tion and monop­o­liza­tion. Rothstein relates the plight of a black cou­ple in 1959 who attempt­ed to build a house in a white town in Missouri. Upon dis­cov­er­ing that the cou­ple was black, whites offered to pur­chase the prop­er­ty (repris­ing a scene from Lorraine Hansberry’s clas­sic play A Raisin in the Sun, which dra­ma­tized a sim­i­lar attempt­ed buy­out in a white Chicago neigh­bor­hood). After the black cou­ple demurred, town offi­cials seized the prop­er­ty pur­suant to emi­nent domain, claim­ing that the land was need­ed for a park.

In numer­ous cities, offi­cials erad­i­cat­ed black neigh­bor­hoods by demol­ish­ing them for pur­pos­es of “slum clear­ance” or high­way con­struc­tion. Although these cam­paigns of “Negro removal” were noto­ri­ous and deeply resent­ed among African Americans, they often pro­ceed­ed with­out much resis­tance or doc­u­men­ta­tion. An excep­tion­al report by the New Jersey attor­ney general’s office in the 1960s casts light on what was, unfor­tu­nate­ly, a wide­spread injus­tice. Commenting on the destruc­tion of 3,000 hous­ing units in Camden, the report remarked that it was “obvi­ous from a glance at the … tran­sit plans that an attempt is being made to elim­i­nate the Negro and Puerto Rican ghet­to areas by … build­ing high­ways that ben­e­fit white sub­ur­ban­ites, facil­i­tat­ing their move­ment from the sub­urbs to work and back.”

AP Photo/​Sam Myers

Levittown, Pennsylvania, 1957: An ugly crowd gath­ers as the first black fam­i­ly moves in.

Rothstein right­ly empha­sizes how “police-pro­tect­ed vio­lence” has long been used to exclude blacks from cer­tain neigh­bor­hoods. He tells the sto­ry, for exam­ple, of a black Navy vet­er­an, Wilbur Gary, who bought a home in 1952 in a sub­urb out­side of Richmond, California. Soon after the Gary fam­i­ly arrived, they were met by a mob of 300 whites who shout­ed epi­thets, hurled bricks, and burned a cross on the lawn. For sev­er­al days the local police, sym­pa­thiz­ing with the mob, refused to inter­vene — delib­er­ate inac­tion that deprived the Garys of the equal pro­tec­tion of the law. The same thing hap­pened to anoth­er black vet­er­an, Bill Myers, when he moved his fam­i­ly into Levittown, Pennsylvania. While hun­dreds of white pro­test­ers pelt­ed the Myers fam­i­ly with rocks, police stood by idly. “What the Gary and Myers fam­i­lies expe­ri­enced,” Rothstein observes, “was not an aber­ra­tion. During much of the twen­ti­eth cen­tu­ry, police tol­er­ance and pro­mo­tion of cross-burn­ings, van­dal­ism, arson and oth­er vio­lent acts to main­tain res­i­den­tial seg­re­ga­tion was sys­tem­at­ic and nation­wide.”

Remarkably, vic­tims of racial­ly moti­vat­ed vio­lence found them­selves pros­e­cut­ed by state author­i­ties. When Harvey Clark, an African American bus dri­ver, rent­ed an apart­ment in Cicero, Illinois, police pre­vent­ed him and his fam­i­ly from mov­ing in. When a judge ordered the police to desist, a white mob of thou­sands invad­ed the apart­ment, set­ting the family’s belong­ings ablaze. No one was arrest­ed. But soon there­after, Clark and the white land­la­dy who rent­ed the apart­ment to him were arrest­ed on charges of incit­ing a riot and con­spir­ing to low­er prop­er­ty val­ues. These episodes, Rothstein makes clear, rep­re­sent­ed more than stray erup­tions of racism; they rep­re­sent­ed a per­va­sive risk that dis­cour­aged count­less blacks from even con­sid­er­ing liv­ing in locales deemed to be off-lim­its.

The Color of Law updates the his­to­ry of res­i­den­tial racial seg­re­ga­tion, relates it to con­tem­po­rary out­bursts of racial enmi­ty, par­tic­u­lar­ly the alien­ation between blacks and police that is so evi­dent in many poor African American neigh­bor­hoods, and human­izes the con­se­quences of racial divi­sion in hous­ing. He recounts the sto­ries of indi­vid­u­als who have been harmed and mov­ing­ly describes unhealed, recur­rent injuries. He details, for exam­ple, how hous­ing seg­re­ga­tion has made black work­ers spend more time and mon­ey on com­mutes made longer by seg­re­ga­tion that dis­abled them from secur­ing hous­ing near their work­places. Rothstein intro­duces the read­er to hard­work­ing black peo­ple who con­tin­ue to suf­fer dis­ad­van­tage because their “par­ents and grand­par­ents were denied par­tic­i­pa­tion in the equi­ty-accu­mu­lat­ing boom of the 1950s and 1960s.” He simul­ta­ne­ous­ly brings home the real­i­ty of white priv­i­lege, a con­cept that the right has, alas, been all too suc­cess­ful in dis­cred­it­ing. Rothstein delin­eates how, unen­cum­bered by the his­tor­i­cal bur­dens blacks car­ry, “white fam­i­lies are more often able to bor­row from their home equi­ty, if nec­es­sary, … send their chil­dren to col­lege, retire with­out becom­ing depen­dent on those chil­dren, aid fam­i­ly mem­bers expe­ri­enc­ing hard times, or endure brief peri­ods of job­less­ness with­out fear of los­ing a home or going hun­gry.”

Focusing on seg­re­ga­tion under­scores that the wrongs in need of right­ing are not anti­quar­i­an mis­deeds; they are rel­a­tive­ly recent injus­tices whose awful lay­ers we are still in the process of dis­cov­er­ing.

ROTHSTEIN’S FOCUS ON seg­re­ga­tion in the eras of the New Deal, World War II, and the post­war peri­od is a use­ful con­tri­bu­tion to the ongo­ing debate over repa­ra­tions. Many repa­ra­tionists stress the hor­rif­ic atroc­i­ty of enslave­ment in mak­ing the case that the United States ought to do some­thing dra­mat­ic to com­pen­sate African Americans, or at least those with a plau­si­ble claim of ongo­ing depri­va­tion. In The Case for Black Reparations, how­ev­er, Boris Bittker urged repa­ra­tionists to focus more on the wrongs of the Jim Crow era than the slav­ery era. To con­cen­trate on slav­ery, he wrote, “is to under­state the case for com­pen­sa­tion, so much so that one might almost sus­pect that the dis­tant past is serv­ing to sup­press the ugly facts of the recent past and of con­tem­po­rary life.” Foes of repa­ra­tions note the obvi­ous fact that all of the slaves and slave-mas­ters are long dead. But mil­lions of black Americans direct­ly harmed by state-enforced seg­re­ga­tion remain alive, as do mil­lions of white Americans direct­ly priv­i­leged by racial­ly dis­crim­i­na­to­ry gov­ern­men­tal poli­cies. Focusing on seg­re­ga­tion under­scores that the wrongs in need of right­ing are not anti­quar­i­an mis­deeds; they are rel­a­tive­ly recent injus­tices whose awful lay­ers we are still in the process of dis­cov­er­ing.

Rothstein’s final chap­ter, “Considering Fixes,” reviews some of the poli­cies under­tak­en or pro­posed to pre­vent, deter, and redress fresh racial dis­crim­i­na­tion in hous­ing mar­kets and to rec­ti­fy the effects of past racial wrongs. It is the least-devel­oped part of The Color of Law. Rothstein writes, “It is not dif­fi­cult to con­ceive of ways to rec­ti­fy the lega­cy of de jure seg­re­ga­tion.” He is wrong. It is dif­fi­cult to con­ceive of effi­ca­cious and plau­si­ble means by which to redress the huge, com­plex, and ever-evolv­ing prob­lem that Rothstein vivid­ly depicts. Overcoming that intel­lec­tu­al obsta­cle is a mis­sion on which pro­gres­sive ana­lysts should be embarked, espe­cial­ly at this Trumpian moment dur­ing which, in many locales, they are exiled to the polit­i­cal wilder­ness. Having a decent sense of shame and guilt root­ed in an aware­ness of our igno­min­ious his­to­ry is essen­tial. So, too, is hav­ing a sense of gen­eros­i­ty and a desire to assist in cre­at­ing a more just soci­ety. Essential, as well, how­ev­er, is care­ful, knowl­edge­able, wise plan­ning.

Rothstein writes that we might con­tem­plate the fol­low­ing:

Considering that African Americans com­prise about 15 per­cent of the pop­u­la­tion of the New York met­ro­pol­i­tan area, the fed­er­al gov­ern­ment should pur­chase the next 15 per­cent of hous­es that come up for sale in Levittown at today’s mar­ket rates (approx­i­mate­ly $350,000). It should then re-sell the prop­er­ties to qual­i­fied African Americans for $75,000, the price (in today’s dol­lars) that their grand­par­ents would have paid if per­mit­ted to do so. The gov­ern­ment should enact this pro­gram in every sub­ur­ban devel­op­ment whose con­struc­tion com­plied with the FHA’s dis­crim­i­na­to­ry require­ments.

Rothstein avers that he presents this idea “not as a prac­ti­cal pro­pos­al but only to illus­trate the kind of rem­e­dy that we would con­sid­er and debate if we dis­abused our­selves of the de fac­to seg­re­ga­tion myth.” Rothstein has dis­abused me of that myth, the fic­tion that racial sep­a­rate­ness springs main­ly from non-offi­cial sources, includ­ing caus­es that, in the words of one Supreme Court jus­tice, are “unknown and per­haps unknow­able.” Rothstein con­vinces me that racial dis­crim­i­na­tion facil­i­tat­ed by gov­ern­ment — de jure seg­re­ga­tion — has played the major role in con­struct­ing the res­i­den­tial cri­sis that ensnares so many African Americans. I wish, though, that Rothstein had been more delib­er­ate in edu­cat­ing me about the reform he posits. How much would it cost? What sec­tor of the African American pop­u­la­tion would be able to take advan­tage of it? What objec­tions are like­ly to be voiced and what are the best respons­es?

Policy pre­scrip­tion, how­ev­er, is not the main mis­sion of Rothstein’s enter­prise. His main mis­sion is iden­ti­fy­ing and dra­ma­tiz­ing a neglect­ed fea­ture in the con­struc­tion of American racial injus­tice: gov­ern­men­tal com­plic­i­ty in racial res­i­den­tial exclu­sion, iso­la­tion, and depri­va­tion. In The Color of Law, he accom­plish­es that mis­sion ably. http://​prospect​.org/​a​r​t​i​c​l​e​/​s​t​a​t​e​-​e​n​f​o​r​c​e​d​-​s​e​g​r​e​g​a​t​i​o​n​-​a​n​d​-​c​o​l​o​r​-​j​u​s​t​ice