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

by Richard Rothstein

Today’s residential segregation in the North, South, Midwest, and West is not the unintended consequence of individual choices and of otherwise well-meaning law or regulation but of unhidden public policy that explicitly segregated every metropolitan area in the United States.

Without our government’s purposeful imposition of racial segregation, the other causes—private prejudice, white flight, real estate steering, bank redlining, income differences, and self-segregation—still would have existed but with far less opportunity for expression. Segregation by intentional government action is not de facto. Rather, it is what courts call de jure: segregation by law and public policy.

In 1883, though, the Supreme Court rejected this congressional interpretation of its powers to enforce the Thirteenth Amendment. The Court agreed that Section 2 authorized Congress to “to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States,” but it did not agree that exclusions from housing markets could be a “badge or incident” of slavery. In consequence, these Civil Rights Act protections were ignored for the next century.

The Fair Housing Act provided for modest enforcement, and civil rights groups have used this law, rather than the earlier statute, to challenge housing discrimination. But when they did so, we lost sight of the fact that housing discrimination did not become unlawful in 1968; it had been so since 1866. Indeed, throughout those 102 years, housing discrimination was not only unlawful but was the imposition of a badge of slavery that the Constitution mandates us to remove.

Yet even if we came to a nationally shared recognition that government policy has created an unconstitutional, de jure, system of residential segregation, it does not follow that litigation can remedy this situation. Although most African Americans have suffered under this de jure system, they cannot identify, with the specificity a court case requires, the particular point at which they were victimized.

This is a huge and important statement. It may be wrong, but how can you prove it in court when its wholly systemic?

“Let bygones be bygones” is not a legitimate approach if we wish to call ourselves a constitutional democracy.

Our system of official segregation was not the result of a single law that consigned African Americans to designated neighborhoods. Rather, scores of racially explicit laws, regulations, and government practices combined to create a nationwide system of urban ghettos, surrounded by white suburbs. Private discrimination also played a role, but it would have been considerably less effective had it not been embraced and reinforced by government.

Popularized by Supreme Court majorities from the 1970s to the present, the de facto segregation myth has now been adopted by conventional opinion, liberal and conservative alike.

He observed that racially separate neighborhoods might result from “societal discrimination” but said that remedying discrimination “not traceable to [government’s] own actions” can never justify a constitutionally acceptable, racially conscious, remedy.

The vestiges of segregation . . . may be subtle and intangible but nonetheless they must be so real that they have a causal link to the de jure violation being remedied. It is simply not always the case that demographic forces causing population change bear any real and substantial relation to a de jure violation.”

The Color of Law demonstrates that racially explicit government policies to segregate our metropolitan areas are not vestiges, were neither subtle nor intangible, and were sufficiently controlling to construct the de jure segregation that is now with us in neighborhoods and hence in schools.

Where The Color of Law differs is not with their theory but with their facts. For those who, like the Court, believe that the Constitution requires a remedy for government-sponsored segregation, but that most segregation doesn’t fall into this category, I hope to show that Justice Roberts and his colleagues have their facts wrong. Most segregation does fall into the category of open and explicit government-sponsored segregation.

will frequently refer (indeed, I’ve already done so) to things we have done, or things we should do. We means all of us, the American community. This is not a book about whites as actors and blacks as victims. As citizens in this democracy, we—all of us, white, black, Hispanic, Asian, Native American, and others—bear a collective responsibility to enforce our Constitution and to rectify past violations whose effects endure. Few of us may be the direct descendants of those who perpetuated a segregated system or those who were its most exploited victims. African Americans cannot await rectification of past wrongs as a gift, and white Americans collectively do not owe it to African Americans to rectify them. We, all of us, owe this to ourselves. As American citizens, whatever routes we or our particular ancestors took to get to this point, we’re all in this together now.

We don’t hesitate to acknowledge that Jews in Eastern Europe were forced to live in ghettos where opportunity was limited and leaving was difficult or impossible. Yet when we encounter similar neighborhoods in this country, we now delicately refer to them as the inner city, yet everyone knows what we mean.

We’ve developed other euphemisms, too, so that polite company doesn’t have to confront our history of racial exclusion. When we consider problems that arise when African Americans are absent in significant numbers from schools that whites attend, we say we seek diversity, not racial integration. When we wish to pretend that the nation did not single out African Americans in a system of segregation specifically aimed at them, we diffuse them as just another people of color. I try to avoid such phrases.

Today African American strikes us as most appropriate. In these pages, it’s the term I’ll use most frequently, but I will sometimes use black as well. Occasionally, in describing historical events, I will refer to Negroes, intending the same respect that it enjoyed in those earlier periods.

This shifting of terminology should not distract us from this underlying truth: We have created a caste system in this country, with African Americans kept exploited and geographically separate by racially explicit government policies. Although most of these policies are now off the books, they have never been remedied and their effects endure.

But to pass such economic legislation, Roosevelt needed the votes of southern congressmen and senators, who agreed to support economic reform only if it excluded industries in which African Americans predominated, like agriculture. The Stevenson brothers were each paid only fifty cents a day to work in white farmers’ fields.

With such rapid population growth, housing could not be put up quickly enough. The federal government stepped in with public housing. It was officially and explicitly segregated.

For white defense workers, government housing was built farther inland, closer to white residential areas, and some of it was sturdily constructed and permanent. Because Richmond had been overwhelmingly white before the war, the federal government’s decision to segregate public housing established segregated living patterns that persist to this day.

policy of segregation was adopted, explained the authority’s director, for the purpose of “keeping social harmony or balance in the whole community.” Another housing authority official insisted that “Negroes from the South would rather be by themselves.”

Federal officials approved bank loans to finance construction, requiring that none of Rollingwood’s 700 houses be sold to an African American. The government also specified that each Rollingwood property must have an extra bedroom with a separate entrance to accommodate an additional white war worker.

Other black war workers in North Richmond, not as fortunate as Frank Stevenson, remained in cardboard shacks, barns, tents, or even open fields. Black workers who earned steady wages at war industries could save to buy small plots in unincorporated North Richmond, but because the federal government refused to insure bank loans made to African Americans for housing, standard construction was unaffordable.* Some built their own dwellings with orange crates or scrap lumber scoured from the shipyards. By the early 1950s, some 4,000 African Americans in North Richmond were still living in these makeshift homes.

To ensure that no African Americans migrated to Richmond unless they were essential to the war effort, the city’s police stopped African American men on the street and then arrested and jailed them if they couldn’t prove they were employed.

As in Rollingwood ten years earlier, one of the federal government’s specifications for mortgages insured in Milpitas was an openly stated prohibition on sales to African Americans.

Because Milpitas had no apartments, and houses in the area were off-limits to black workers—though their incomes and economic circumstances were like those of whites on the assembly line—African Americans at Ford had to choose between giving up their good industrial jobs, moving to apartments in a segregated neighborhood of San Jose, or enduring lengthy commutes between North Richmond and Milpitas. Frank Stevenson bought a van, recruited eight others to share the costs, and made the drive daily for the next twenty years until he retired. The trip took more than an hour each way.

In 1970, after his daughters finished high school, Frank Stevenson was finally able to buy his first home in the southern, previously whites-only section of the city.

The co-op proposed to include a quota system in its bylaws and deeds, promising that the proportion of African Americans in the Peninsula Housing Association would not exceed the proportion of African Americans in California’s overall population. This concession did not appease government officials, and the project stalled.

Floyd Lowe, president of the California Real Estate Association, set up an office in East Palo Alto to panic white families into listing their homes for sale, a practice known as blockbusting. He and other agents warned that a “Negro invasion” was imminent and that it would result in collapsing property values. Soon, growing numbers of white owners succumbed to the scaremongering and sold at discounted prices to the agents and their speculators. The agents, including Lowe himself, then designed display ads with banner headlines—“Colored Buyers!”—which they ran in San Francisco newspapers. African Americans, desperate for housing, purchased the homes at inflated prices.

At the time, the Federal Housing Administration and Veterans Administration not only refused to insure mortgages for African Americans in designated white neighborhoods like Ladera; they also would not insure mortgages for whites in a neighborhood where African Americans were present. So once East Palo Alto was integrated, whites wanting to move into the area could no longer obtain government-insured mortgages.

Within six years the population of East Palo Alto was 82 percent black. Conditions deteriorated as African Americans who had been excluded from other neighborhoods doubled up in single-family homes. Their East Palo Alto houses had been priced so much higher than similar properties for whites that the owners had difficulty

That the San Francisco region was segregated by government policy is particularly striking because, in contrast to metropolitan areas like Chicago, Detroit, Cleveland, or Baltimore, northern California had few African Americans before migrants like Frank Stevenson arrived during World War II in search of jobs. The government was not following preexisting racial patterns; it was imposing segregation where it hadn’t previously taken root.‡

If you inquire into the history of the metropolitan area in which you live, you will probably find ample evidence of how the federal, state, and local governments unconstitutionally used housing policy to create or reinforce segregation in ways that still survive.

What can we find for Hampton Roads?

THE PURPOSEFUL USE of public housing by federal and local governments to herd African Americans into urban ghettos had as big an influence as any in the creation of our de jure system of segregation.

At that time public housing was mostly for working- and lower-middle-class white families. It was not heavily subsidized, and tenants paid the full cost of operations with their rent. Public housing’s original purpose was to give shelter not to those too poor to afford it but to those who could afford decent housing but couldn’t find it because none was available.

during World War I, when it built residences for defense workers near naval shipyards and munitions plants. Eighty-three projects in twenty-six states housed 170,000 white workers and their families. African Americans were excluded, even from projects in northern and western industrial centers where they worked in significant numbers.

Federal policy sometimes imposed racial segregation where it hadn’t previously been established, forcing African Americans into overpopulated slums.

In response, President Franklin D. Roosevelt’s New Deal created the nation’s first public housing for civilians who were not engaged in defense work. Race determined the program’s design. The administration constructed separate projects for African Americans, segregated buildings by race, or excluded African Americans entirely from developments.

In Norris, Tennessee, where the TVA was headquartered, the government developed a model village with 500 comfortable homes, leased to employees and construction workers. The village, though, was open only to whites, while the TVA housed its African American workers in shoddy barracks some distance away. A TVA official explained that the town was being reserved for whites because “Negroes do not fit into the program.”

In New Jersey, for example, Governor Harold Hoffman refused to allow any camps for African American corps members because of what he termed “local resentment.” The national CCC director, Robert Fechner, implemented a policy never to “force colored companies on localities that have openly declared their opposition to them.” Initially, local administrators integrated some camps in western and midwestern states, but federal officials ordered racial segregation in these camps, too.

Ickes established a “neighborhood composition rule”: federal housing projects should reflect the previous racial composition of their neighborhoods. Projects in white areas could house only white tenants, those in African American areas could house only African American tenants, and only projects in already-integrated neighborhoods could house both whites and blacks.

Maintaining the status quo, even from a pronounced liberal.

Despite its nominal rule of respecting the prior racial composition of neighborhoods—itself a violation of African Americans’ constitutional rights—the PWA segregated projects even where there was no previous pattern of segregation. At the time, many urban neighborhoods contained both black and white (mostly immigrant) low-income families. The neighborhoods were integrated because workers of both races needed to live close to the downtown factory jobs to which they walked.† The PWA designated many integrated neighborhoods as either white or black and then used public housing to make the designation come true—by installing whites-only projects in mixed neighborhoods it deemed “white” and blacks-only projects in those it deemed “colored.”

because public housing was intended not for poor but for lower-middle-class families, many of those displaced from the Flats had incomes that were insufficient to qualify. Instead, many had to double up with relatives or rent units created when other African American families subdivided their houses. A result of the government program, therefore, was the increased population density that turned the African American neighborhoods into slums.

The government created the slum problem and later called it a choice.

In 1934, the city of St. Louis proposed to raze the DeSoto-Carr area, a tenement neighborhood on the near north side whose population was split nearly evenly between whites and African Americans. For the cleared site, the city proposed a whites-only low-rise project. When the federal government objected to the city’s failure to accommodate African Americans, St. Louis agreed to a blacks-only project as well. In the end, St. Louis built a segregated development for African Americans in the DeSoto-Carr area, while it demolished another previously integrated neighborhood south of downtown to build a separate project for whites.

Where no segregation existed in the St. Louis suburb, the local government created it and segregated the community with federal permission.

Although there previously had been ethnic and racial clusters in the neighborhood, the PWA solidified its racial segregation.

The authority continued the policy of claiming to respect existing neighborhood racial characteristics while in practice creating new racially homogenous communities. The USHA manual warned that it was undesirable to have projects for white families “in areas now occupied by Negroes” and added: “The aim of the [local housing] authority should be the preservation rather than the disruption of community social structures which best fit the desires of the groups concerned.” The manual stated that projects in previously integrated areas should be open to mixed occupancy, but this standard, like that of the PWA, was rarely honored.

Rosewood Courts, Austin’s Eastside project for African Americans, was built on land obtained by condemning Emancipation Park, the site of an annual festival to commemorate the abolition of slavery. The park had been privately owned by a neighborhood association, the Travis County Emancipation Organization, and residents protested the condemnation of this community institution in which they took great pride. But their objections had no effect, despite the availability of other vacant land.

The Jane Addams Houses, in a mostly white area that had some African Americans, was called “integrated”: the PWA gave about 3 percent of the Jane Addams units to African Americans but segregated them in a designated section within the project.

It would be going too far to suggest that cities like these would have evolved into integrated metropolises were it not for New Deal public housing. But it is also the case that the federal government’s housing rules pushed these cities into a more rigid segregation than otherwise would have existed. The biracial character of many neighborhoods presented opportunities for different futures than the segregated ones that now seem so unexceptional. Yet those opportunities were never seized.

In other cities, like Richmond, war housing was created for African American workers as well, but it was segregated. By the war’s end, the Lanham Act had combined with PWA and USHA programs to create or solidify residential racial segregation in every metropolitan area they had touched.