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

by Richard Rothstein

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.

I remembered that account when, in 2007, the U.S. Supreme Court prohibited the Louisville school district from carrying out a racial integration plan, on the ground that the segregation of Louisville is “a product not of state action but of private choices.”

UNTIL LONG after emancipation from slavery, most African Americans were denied access to free labor markets and were unable to save from wages. This denial of access was another badge of slavery that Congress was duty bound to eliminate, not to perpetuate.

THE GOVERNMENT’S participation in blocking African Americans’ wage-earning opportunities had its most devastating

effect during World War II, when black workers migrated to centers of war production in search of jobs. The Roosevelt administration required factories to convert from civilian to military production. The army and navy effectively operated shipbuilding yards, munitions makers, and aircraft and tank manufacturers. Yet federal agencies both tolerated and supported joint management-union policies that kept African Americans from doing any but the most poorly paid tasks in defense plants.

THE CREATION of racial ghettos was self-perpetuating: residence in a community where economic disadvantage is concentrated itself depresses disposable income, which makes departure more difficult. Restricting African Americans’ housing supply led to higher rents and home prices in

black neighborhoods than for similar accommodations in predominantly white ones. If African Americans had access to housing throughout metropolitan areas, supply and demand balances would have kept their rents and home prices at reasonable levels. Without access, landlords and sellers were free to take advantage of the greater demand, relative to supply, for African American housing.

This law is now a half-century old. You might think that fifty years would be long enough to erase the effects of government promotion of and support for segregation. But the public policies of yesterday still shape the racial landscape of today.

Residential segregation is hard to undo for several reasons: •Parents’ economic status is commonly replicated in the next generation, so once government prevented African Americans from fully participating in the mid-twentieth-century free labor market, depressed incomes became, for many, a multigenerational trait. •The value of white working- and middle-class families’ suburban housing appreciated substantially over the years, resulting in vast wealth differences between whites and blacks that helped to define permanently our racial living arrangements. Because parents can bequeath assets to their children, the racial wealth gap is even more persistent down through the generations than income differences. •We waited too long to try to undo it. By the time labor market discrimination abated sufficiently for substantial numbers of African Americans to reach for the middle class, homes outside urban black neighborhoods had mostly become unaffordable for working- and lower-middle-class families. •Once segregation was established, seemingly race-neutral policies reinforced it to make remedies even more difficult. Perhaps most pernicious has been the federal tax code’s mortgage interest deduction, which increased the subsidies to higher-income suburban homeowners while providing no corresponding tax benefit for renters. Because de jure policies of segregation ensured that whites would more likely be owners and African Americans more likely be renters, the tax code contributes t...

The Fair Housing Act of 1968 prohibited future discrimination, but it was not primarily discrimination (although this still contributed) that kept African Americans out of most white suburbs after the law was passed. It was primarily unaffordability. The right that was unconstitutionally denied to African Americans in the late 1940s cannot be restored by passing a Fair Housing law that tells their descendants they can now buy homes in the suburbs, if only they can afford it. The advantage that FHA and VA loans gave the white lower-middle class in the 1940s and ’50s has become permanent.

MEDIAN WHITE family income is now about $60,000, while median black family income is about $37,000—about 60 percent as much. You might expect that the ratio of black to white household wealth would be similar. But median white household wealth (assets minus liabilities) is about $134,000, while median black household wealth is about $11,000—less than 10 percent as much. Not all of this enormous difference is attributable to the government’s racial housing policy, but a good portion of it certainly is.

Forty-eight percent of African American families, at all income levels, have lived in poor neighborhoods over at least two generations, compared to 7 percent of white families. If a child grows up in a poor neighborhood, moving up and out to a middle-class area is typical for whites but an aberration for African Americans. Neighborhood poverty is thus more multigenerational for African Americans and more episodic for whites.

ACTIONS OF government in housing cannot be neutral about segregation. They will either exacerbate or reverse it. Without taking care to do otherwise, exacerbation is more likely.

The false sense of superiority that segregation fosters in whites contributes to their rejection of policies to integrate American society. The lower achievement of African American children that results from life in a segregated neighborhood adds another impediment to those children’s ability to merge into middle-class workplaces. In these ways, segregation perpetuates itself, and its continued existence makes it ever harder to reverse.

With very rare exceptions, textbook after textbook adopts the same mythology. If middle and high school students are being taught a false history, is it any wonder that they come to believe that African Americans are segregated only because they don’t want to marry or because they prefer to live only among themselves? Is it any wonder that they grow up inclined to think that programs to ameliorate ghetto conditions are simply undeserved handouts?

Montgomery County, Maryland, has a strong countywide inclusionary zoning ordinance. Like most such regulations, it requires developers in even the most affluent communities to set aside a percentage of units (in the case of Montgomery County, 12 to 15 percent) for moderate-income families. It then goes further: the public housing authority purchases a third of these set-aside units for rental to the lowest-income families. The program’s success is evidenced by the measurably higher achievement of low-income African American children who live and attend school in the county’s wealthiest suburbs. Montgomery County’s program should be widely duplicated.

Residential segregation was created by state action, making it necessary to invoke the inseparable complement of the Roberts principle: where segregation is the product of state action, it has constitutional implications and requires a remedy.

But under our constitutional system, government has not merely the option but the responsibility to resist racially discriminatory views, even when—especially when—a majority holds them. In the twentieth century, federal, state, and local officials did not resist majority opinion with regard to race. Instead, they endorsed and reinforced it, actively and aggressively.