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

by Richard Rothstein

Calling itself the Peninsula Housing Association of Palo Alto, the co-op purchased a 260-acre ranch adjacent to the Stanford campus and planned to build 400 houses as well as shared recreational facilities, a shopping area, a gas station, and a restaurant on commonly owned land. But banks would not finance construction costs nor issue mortgages to the co-op or to its members without government approval, and the FHA would not insure loans to a cooperative that included African American members. The cooperative’s board of directors, including Stegner, recommended against complying with the demand that the cooperative reconstitute itself as an all-white organization, but the membership, attempting to appease the government, voted in January 1948 by a narrow 78–75 margin to compromise. 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. Stegner and other board members resigned; soon afterward the cooperative was forced to disband because it could not obtain financing without government approval. In 1950, the association sold its land to a private developer whose FHA agreement specified that no properties be sold to African Americans. The builder then constructed individual homes for sale to whites in “Ladera...

Despite the neighborhood’s biracial history, the PWA constructed two segregated projects, one for African Americans (the Outhwaite Homes) and one for whites (the Cedar-Central apartments). Although there previously had been ethnic and racial clusters in the neighborhood, the PWA solidified its racial segregation.

The New Orleans NAACP chapter protested the creation of a segregated housing development. The agency ignored the protest, and the development eventually consisted of one thousand homes for African Americans only, surrounding a park and golf course and adjoining a similar FHA-insured development for whites only. In 1955 an FHA spokesman toured fifty cities where he addressed African American audiences, boasting of New Orleans’s achievements and telling his listeners that such segregated projects were “the type of thing [the] FHA wanted.” A pattern emerges from these examples. Government’s commitment to separating residential areas by race began nationwide following the violent suppression of Reconstruction after 1877. Although the Supreme Court in 1917 forbade the first wave of policies—racial segregation by zoning ordinance—the federal government began to recommend ways that cities could evade that ruling, not only in the southern and border states but across the country. In the 1920s a Harding administration committee promoted zoning ordinances that distinguished single-family from multifamily districts. Although government publications did not say it in as many words, committee members made little effort to hide that an important purpose was to prevent racial integration. Simultaneously, and through the 1920s and the Hoover administration, the government conducted a propaganda campaign directed at white middle-class families to persuade them to move out of apartments and...

AS EARLY as the nineteenth century, deeds in Brookline, Massachusetts, forbade resale of property to “any negro or native of Ireland.” Such provisions spread throughout the country in the 1920s as the preferred means to evade the Supreme Court’s 1917 Buchanan racial zoning decision.

In 1953, the Supreme Court ended this circumvention of Shelley. It ruled that the Fourteenth Amendment precluded state courts not only from evicting African Americans from homes purchased in defiance of a restrictive covenant but also from adjudicating suits to recover damages from property owners who made such sales. Still, the Court refused to declare that such private contracts were unlawful or even that county clerks should be prohibited from accepting deeds that included them. It took another nineteen years before a federal appeals court ruled that the covenants themselves violated the Fair Housing Act and that recording deeds with such clauses would constitute state action in violation of the Fourteenth Amendment.

Research

The Supreme Court decision in Shelley v. Kraemer, banning court enforcement of restrictive covenants, had been unanimous, 6–0. Three of the nine justices excused themselves from participating because their objectivity might have been challenged—there were racial restrictions covering the homes in which they lived.

Home purchases should get protection just as with the freedom of speech maybe as its own amendment, no seller may be forced to make a sale public or face penalty for selling ei property to an anonymous buyer.

Speculators also took out real estate advertisements in African American newspapers, even if the featured properties were not for sale. The ads’ purpose was to attract potential African American buyers to walk around white areas that were targeted for blockbusting. In a 1962 Saturday Evening Post article, an agent (using the pseudonym “Norris Vitchek”) claimed to have arranged house burglaries in white communities to scare neighbors into believing that their communities were becoming unsafe.

Known as contract sales, these agreements usually provided that ownership would transfer to purchasers after fifteen or twenty years, but if a single monthly payment was late, the speculator could evict the would-be owner, who had accumulated no equity. The inflated sale prices made it all the more likely that payment would not be on time.