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

by Richard Rothstein

until the last quarter of the twentieth century, racially explicit policies of federal, state, and local governments defined where whites and African Americans should live.

Segregation by intentional government action is not de facto. Rather, it is what courts call de jure: segregation by law and public policy.

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.

The following pages will refute this too-comfortable notion, expressed by Justice Kennedy and endorsed by Chief Justice Roberts and his colleagues, that wrongs committed by the state have little causal link to the residential segregation we see around us. 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. The core argument of this book is that African Americans were unconstitutionally denied the means and the right to integration in middle-class neighborhoods, and because this denial was state-sponsored, the nation is obligated to remedy it.

They agree that there is a constitutional obligation to remedy the effects of government-sponsored segregation, though not of private discrimination.

We have become embarrassed about saying ghetto, a word that accurately describes a neighborhood where government has not only concentrated a minority but established barriers to its exit. 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. (When affluent whites gentrify the same geographic areas, we don’t characterize those whites as inner city families.)

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.

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.

During this time, Franklin Roosevelt’s New Deal, first with industry codes and then with the Fair Labor Standards Act, prohibited child labor and established minimum wages of about twelve dollars a week in the South, rising to twenty-five cents an hour in 1938. 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.

At first the shipyards and other war industries attempted to operate only with white men, but as the war dragged on, unable to find a sufficient number to meet their military orders, they were forced to hire white women, then black men, and eventually black women as well.

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. Located along railroad tracks and close to the shipbuilding area, federally financed housing for African Americans in Richmond was poorly constructed and intended to be temporary. 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.

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.

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.

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 making payments without additional rental income. Federal and state housing policy had created a slum in East Palo Alto.

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.

The first PWA project, the Techwood Homes in Atlanta, opened in 1935. It was built on land cleared by demolishing the Flats, a low-income integrated neighborhood adjacent to downtown that had included 1600 families, nearly one-third of whom were African American. The PWA remade the neighborhood with 604 units for white families only. The Techwood project not only created a segregated white community, it also intensified the segregation of African American families who, evicted from their homes, could find new housing only by crowding into other neighborhoods where African Americans were already living. Some families evicted from the Flats settled in a segregated development, also created by the federal government, that later opened on the west side. But 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.

Certainly, many urban areas already had distinct African American neighborhoods when the PWA or USHA came on the scene; federal agencies cannot be charged with sole responsibility for segregation. But they reinforced it.

Whites in the neighborhood rioted, leading to one hundred arrests (all but three were African Americans) and thirty-eight hospitalizations (all but five were African Americans).

The Western Addition had been a mixed community, including a large Japanese American population. But when the federal government relocated Japanese-origin families to internment camps, their residences were vacated, and African Americans were able to rent them, making this one of the few San Francisco neighborhoods where African Americans could find housing. By

The director of the federal Division of Slum Clearance justified the use of redevelopment funds to demolish black neighborhoods and replace them with housing for whites, saying “it does not appear reasonable to assume that . . . we can impose an anti-segregation requirement . . . in light of the Congressional intention as evidenced by its vote on [the amendment].”

Reflecting on public housing in his state, Carey McWilliams, who had been California’s housing commissioner in the early years of World War II, later wrote that “the federal government [had] in effect been planting the seeds of Jim Crow practices throughout the region under the guise of ‘respecting local attitudes.’” We can only wonder what our urban areas would look like today if, instead of creating segregation where it never, or perhaps barely, existed, federal and local governments had pushed in the opposite direction, using public housing as an example of how integrated living could be successful.

But in 1906, Helena’s prosecuting attorney expressed the new attitude of public authorities when he announced, “It is time that the respectable white people of this community rise in their might and assert their rights.” Helena’s newspaper called the prosecutor’s statement masterful and eloquent. Three years later Montana banned marriages between blacks and whites. During this era many towns across the country adopted policies forbidding African Americans from residing or even from being within town borders after dark. Although the policies were rarely formalized in ordinances, police and organized mobs enforced them. Some towns rang bells at sundown to warn African Americans to leave.

In Washington, D.C., in the late nineteenth and early twentieth centuries, African Americans in the federal civil service had been making great progress; some rose to positions whose responsibilities included supervising white office workers and manual laborers. This came to an end when Woodrow Wilson was elected president in 1912. Although he had served as president of Princeton University in New Jersey, and then as governor of that state, his origins were in the South, and he was an uncompromising believer in segregation and in black inferiority. At Princeton, for example, he refused to consider African Americans for admission.

Unlike public housing, which was primarily a federal program with some local participation, government policies to isolate white families in all-white urban neighborhoods began at the local level. As African Americans were being driven out of smaller midwestern and western communities like those in Montana, many other cities, particularly in southern and border states, already had large black populations that couldn’t be expelled. Instead, many of these cities adopted zoning rules decreeing separate living areas for black and white families.

In 1915, The New Republic, still in its infancy but already an influential magazine of the Progressive movement, argued for residential racial segregation until Negroes ceased wanting to “amalgamate” with whites—which is to say, ceased wanting to engage in relationships that produced mixed-race children. The article’s author apparently did not realize that race amalgamation in the United States was already considerably advanced, resulting from the frequent rapes of slaves by white masters.

Other influential zoning experts made no effort to conceal their expectation that zoning was an effective means of racial exclusion.

Frequently, class snobbishness and racial prejudice were so intertwined that when suburbs adopted such ordinances, it was impossible to disentangle their motives and to prove that the zoning rules violated constitutional prohibitions of racial discrimination.

I think it can fairly be said that there would be many fewer segregated suburbs than there are today were it not for an unconstitutional desire, shared by local officials and by the national leaders who urged them on, to keep African Americans from being white families’ neighbors.

THE USE of industrial, even toxic waste zoning, to turn African American neighborhoods into slums was not restricted to St. Louis. It became increasingly common as the twentieth century proceeded and manufacturing operations grew in urban areas. The pattern was confirmed in a 1983 analysis by the U.S. General Accounting Office (GAO), concluding that, across the nation, commercial waste treatment facilities or uncontrolled waste dumps were more likely to be found near African American than white residential areas.

For the most part, courts have refused to reject toxic siting decisions without proof of explicit, stated intent to harm African Americans because of their race.

In 1991, the Environmental Protection Agency issued a report confirming that a disproportionate number of toxic waste facilities were found in African American communities nationwide. President Bill Clinton then issued an executive order requiring that such disparate impact be avoided in future decisions. The order did not, however, require any compensatory actions for the existing toxic placements.

Zoning thus had two faces. One face, developed in part to evade a prohibition on racially explicit zoning, attempted to keep African Americans out of white neighborhoods by making it difficult for lower-income families, large numbers of whom were African Americans, to live in expensive white neighborhoods. The other attempted to protect white neighborhoods from deterioration by ensuring that few industrial or environmentally unsafe businesses could locate in them. Prohibited in this fashion, polluting industry had no option but to locate near African American residences. The first contributed to creation of exclusive white suburbs, the second to creation of urban African American slums.

Terrified by the 1917 Russian revolution, government officials came to believe that communism could be defeated in the United States by getting as many white Americans as possible to become homeowners—the idea being that those who owned property would be invested in the capitalist system.

Although the HOLC did not always decline to rescue homeowners in neighborhoods colored red on its maps (i.e., redlined neighborhoods), the maps had a huge impact and put the federal government on record as judging that African Americans, simply because of their race, were poor risks.

In the decades following World War II, suburbs across the country—as in Milpitas and Palo Alto and Levittown—were created in this way, with the FHA administering an explicit racial policy that solidified segregation in every one of our metropolitan areas.

GOVERNMENT AT all levels became involved in promoting and enforcing the restrictive covenants. Throughout the nation, courts ordered African Americans evicted from homes they had purchased. State supreme courts upheld the practice when it was challenged—in Alabama, California, Colorado, Kansas, Kentucky, Louisiana, Maryland, Michigan, Missouri, New York, North Carolina, West Virginia, and Wisconsin. In the many hundreds of such cases, judges endorsed the view that restrictive covenants did not violate the Constitution because they were private agreements.

Practiced across the country as it had been in East Palo Alto, blockbusting was a scheme in which speculators bought properties in borderline black-white areas; rented or sold them to African American families at above-market prices; persuaded white families residing in these areas that their neighborhoods were turning into African American slums and that values would soon fall precipitously; and then purchased the panicked whites’ homes for less than their worth.

INSURANCE COMPANIES also participated in segregation. They have large reserve funds to invest, and because they are heavily regulated, state policy makers are frequently involved in plans for any housing projects that insurers propose.

In 1947, a New York State court rejected a challenge to Stuyvesant Town’s racial exclusion policy. The decision was upheld on appeal in 1949; the U.S. Supreme Court declined review. The following year, the New York State legislature enacted a statute prohibiting racial discrimination in any housing that received state aid in the form of a tax exemption, sale of land below cost, or

land obtained through condemnation. That same year, Metropolitan Life finally agreed to lease “some” apartments in Stuyvesant Town to “qualified Negro tenants.” But by then, the development was filled. New York City’s rent control laws, by which existing tenants pay significantly less than market-rate rents, helped to ensure that turnover would be slow. Rapidly rising rents in apartments that had been vacated made the development increasingly unaffordable to middle-income families. These conditions combined to make the initial segregation of Stuyvesant Town nearly permanent. By the 2010 census, only 4 percent of Stuyvesant Town residents were African American, in a New York metropolitan area that was 15 percent African American.

FDIC chairman Erle Cocke asserted that it was appropriate for banks under his supervision to deny loans to African Americans because whites’ property values might fall if they had black neighbors. And Federal Reserve Board chairman William McChesney Martin stated, “[N]either the Federal Reserve nor any other bank supervisory agency has—or should have—authority to compel officers and directors of any bank to make any loan against their judgment.” Martin’s view was that federal regulators should only prohibit the approval of unsound loans, not require the nondiscriminatory approval of sound loans. If a black family was denied a loan because of race, Martin asserted, “the forces of competition” would ensure that another bank would come forward to make the loan. With his regulatory authority over all banks that were members of the Federal Reserve System, and with all such banks engaging in similar discriminatory practices, Martin surely knew (or should have known) that his claim was false.

When regulated businesses engage in systematic racial discrimination, when government regulation is intense, and when regulators openly endorse the racial discrimination carried out by the sector they are supervising, then in those cases the regulators ignore the civil rights they are sworn to uphold and contribute to de jure discrimination. As the Supreme Court once said, referring to banks chartered by the federal government: “National banks are instrumentalities of the federal government, created for a public purpose.”

RACIALLY DISCRIMINATORY government activities did not end fifty years ago. On the contrary, some have continued into the twenty-first century. One of the more troubling has been the regulatory tolerance of banks’ “reverse redlining”—excessive marketing of exploitative loans in African American communities. This was an important cause of the 2008 financial collapse because these loans, called subprime mortgages, were bound to go into default. When they did, lower-middle-class African American neighborhoods were devastated, and their residents, with their homes foreclosed, were forced back into lower-income areas. In the early 2000s, reverse redlining was tolerated, sometimes winked at, by bank regulators.

In 2010, the Justice Department agreed that “[t]he more segregated a community of color is, the more likely it is that homeowners will face foreclosure because the lenders who peddled the most toxic loans targeted those communities.” Settling a lawsuit against the Countrywide mortgage company (later a subsidiary of the Bank of America), Secretary of Housing and Urban Development Shaun Donovan remarked that because of Countrywide’s and other lenders’ practices, “[f]rom Jamaica, Queens, New York, to Oakland, California, strong, middle-class African American neighborhoods saw nearly two decades of gains reversed in a matter of not years—but months.” For those dispossessed after foreclosures, there has been greater homelessness, more doubling up with relatives, and more apartment rental in less stable neighborhoods where poor and minority families are more tightly concentrated.

THE MILPITAS story illustrates the extraordinary creativity that government officials at all levels displayed when they were motivated to prevent the movement of African Americans into white neighborhoods. It wasn’t only the large-scale federal programs of public housing and mortgage finance that created de jure segregation. Hundreds, if not thousands of smaller acts of government contributed. They included petty actions like denial of access to public utilities; determining, once African Americans wanted to build, that their property was, after all, needed for parkland; or discovering that a road leading to African American homes was “private.” They included routing interstate highways to create racial boundaries or to shift the residential placement of African American families. And they included choosing school sites to force families to move to segregated neighborhoods if they wanted education for their children. Taken in isolation, we can easily dismiss such devices as aberrations. But when we consider them as a whole, we can see that they were part of a national system by which state and local government supplemented federal efforts to maintain the status of African Americans as a lower caste, with housing segregation preserving the badges and incidents of slavery.

Condemnations of property and manipulations of zoning designations to prevent African Americans from building occurred almost routinely in the 1950s and 1960s.

“Justice delayed is justice denied” was the frequent experience of African Americans having to fight legal battles to obtain housing in white neighborhoods.

One slum clearance tool was the construction of the federal interstate highway system. In many cases, state and local governments, with federal acquiescence, designed interstate highway routes to destroy urban African American communities. Highway planners did not hide their racial motivations.*

IN SOUTHERN and border states and in some northern cities where explicit school segregation was practiced before the Supreme Court’s 1954 Brown decision, authorities developed another tactic to impose residential segregation where it would not otherwise exist: placing the only schools that served African American children in designated African American neighborhoods and providing no transportation for black students who lived elsewhere. African American families who wanted their children to be educated had no choice but to find new housing in the newly segregated areas.