lardbucket: 2017 : july


Blog All Dog-Eared Pages: The Color of Law

Filed under: Reading — Andy @ 10:30 am

Next up in my reading list was Richard Rothstein’s The Color of Law: A Forgotten History of How Our Government Segregated America. This was recommended by one of my colleagues in a discussion about how World War II “calcified racial stratification”, and is particularly up-to-date in some areas, having been published in May of 2017. (Other readings recommended in the same discussion: Ta-Nehisi Coates’ “The Case for Reparations” and Ira Katznelson’s When Affirmative Action Was White, one of which I’ve read, and the other I’ll probably read at some point.)

The book focuses on a number of government policies that had the (frequently, intended) effect of segregating African Americans, from segregated “war worker” housing developments to FHA refusals to sponsor loans (not just to African Americans, and not just to developers who might create integrated subdivisions, but also to anyone who lived in an area where African Americans lived – or might live in the future) to encouraging restrictive covenants to zoning restrictions intended to keep African Americans from living in white areas to building public transportation that primarily benefited whites over other races.

I was generally aware of some of these choices, but completely unaware of others. Given that I read most of the book on my public commuter rail trip from my suburban house that benefits from the mortgage interest deduction to my job in the heart of one of the most segregated major cities in the country, many of these policies were readily recognizable once described.

In the preface, Rothstein points out that the Supreme Court has recognized the Thirteenth Amendment as covering (via the Civil Rights Act) racial discrimination in the sale of property, and indicates that his goal in the book is to use this precedent to argue the unconstitutionality of other government actions:

In 1965, Joseph Lee Jones and his wife, Barbara Jo Jones, sued the Alfred H. Mayer Company, a St. Louis developer, who refused to sell them a home solely because Mr. Jones was black. Three years later, the Supreme Court upheld the Joneses’ claim and recognized the validity of the 1866 Civil Rights Act’s declaration that housing discrimination was a residue of slave status that the Thirteenth Amendment empowered Congress to eliminate.

Rothstein makes it clear that his intent is not to litigate the finer points of each individual case, or rely on court findings of unconstitutionality (which is a point I think is often missed: a crime is committed when the act occurs, not when a court rules on it, and that’s generally understood for most things – but many people don’t seem to recognize that, say, racially segregated schools were unconstitutional as soon as the Fourteenth Amendment was passed, not just when Brown v. BoE was decided), but rather to present large amounts of evidence and build a far more general case based on patterns of discrimination. Rothstein does occasionally acknowledge that it’s not plausible to prosecute such a case in a court of law (largely because due to the passage of time, demonstrating standing for most individuals would be difficult, proper remedies would typically involve far more people than just those who could demonstrate standing, defendants may no longer be alive, etc.), but provides a number of potential legislative solutions in the last chapter of the book.

Back in the 1930s, the Federal Housing Administration was established to offer insurance on mortgages, and in practice their approval was required for most buyers to get a mortgage. Chapter 4 points out that their early guidelines for valuing properties included “inharmonious racial groups”, generally understood to be “the presence of African Americans”. (This was listed along with “the presence of smoke, odors, fog” and “proximity to noisy or high-speed traffic arteries” as things that would significantly decrease a property’s value.) A couple of years later, the FHA explicitly endorsed restrictive covenants covering race:

Recorded deed restrictions should strengthen and supplement zoning ordinances and to be really effective should include the provisions listed below. The restrictions should be recorded with the deed and should run for a period of at least twenty years. Recommended restrictions include the following: […] Prohibition of the occupancy of properties except by the race for which they are intended.

The book indicates that for many years, the FHA refused not only to insure mortgages in mixed-race areas, but also to insure mortgages in areas with African Americans at all, in effect forcing would-be home buyers to instead buy on “contract”, paying regularly as in a mortgage, but without receiving any equity for the house until the last payment. Any late or missed payments were used to evict a family, and start the process over with a new family. This, combined with a much higher effective interest rate, meant that even if African Americans could avoid losing their house, they paid far more than others.

In Chapter 7, Rothstein indicates:

[Because] of slavery’s legacy, the Constitution gives African Americans a special degree of protection. The three constitutional amendments – the Thirteenth, Fourteenth, and Fifteenth – adopted after the Civil War were specifically intended to ensure that African Americans had equal status.

I hadn’t particularly considered this point before. The Thirteenth Amendment (abolition of slavery) obviously was intended for that, and the Fifteenth Amendment (“The right of citizens of the United States to vote shall not be denied or abridged by the United States or any State on account of race, color, or previous condition of servitude”) clearly was, but somehow I hadn’t fit in that the Fourteenth Amendment as also part of such a legacy. I’m more used to it in other contexts where the first section’s use has been critical, but beyond African Americans or slavery (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States […] nor deny to any person within its jurisdiction the equal protection of the laws”).

I was, however, a bit disappointed when some sloppy (or, if I were more cynical, misleading) editing in Chapter 7 ended up making it look like the IRS had a very narrow mandate regarding charitable organizations, while this is far from true:

The IRS has always had an obligation to withhold tax favoritism from discriminatory organizations, but it almost never acted to do so. Its regulations specifically authorize charitable deductions for organizations that “eliminate prejudice and discrimination” and “defend human and civil rights secured by law.” The IRS leadership recognized this in 1967 when the agency exercised its authority to withhold the tax exemption of a recreational facility that excluded African Americans.

However, section 26 CFR 1.501(c)(3)-1(d)(2) makes it clear that this is only an example:

The term charitable is used in section 501(c)(3) in its generally accepted legal sense and is, therefore, not to be construed as limited by the separate enumeration in section 501(c)(3) of other tax-exempt purposes which may fall within the broad outlines of charity as developed by judicial decisions. Such term includes: […] to eliminate prejudice and discrimination; […] to defend human and civil rights secured by law

I am less concerned with the editing here (I’ll note that the wording in this passage is not technically wrong, but it is easy to assume something wrong when reading it), where the actual point can be made without relying on this interpretation, but I am more concerned about other cases where I may not have noticed a skewed interpretation elsewhere in the book. For example, I also flagged a passage in the FAQ that indicated “Flint, Michigan, used a lead-polluted water supply in 2014 and 2015, […]”: while today many people understand what happened, the water supply to Flint was not lead-polluted, but rather corrosive and not correctly treated, leading to corrosion of municipal and home lead pipes. Again this has little consequence (and could conceivably be defended as correct under some readings), but is an example of sloppy editing that makes me concerned about the rest of the book.

This passage in Chapter 9 requires no explanation, just disappointment:

In 1951, Harvey Clark, an African American Chicago bus driver and air force veteran, rented an apartment in all-white Cicero, a Chicago suburb. […] When the Clarks refused to leave, a mob of about 4,000 rioted, raiding the apartment, destroying the fixtures, and throwing the family’s belongings out the window onto the lawn where they were set ablaze. The officers present arrested no one. […] Governor Adlai Stevenson mobilized the National Guard to restore order. Although 118 rioters were arrested, a Cook County grand jury did not indict a single one. The grand jury, however, did indict Harvey Clark, his real estate agent, his NAACP attorney, and the white landlady who rented the apartment to him as well as her attorney on charges of inciting a riot and conspiring to lower property values. Thirty-six years later, when an African American family again attempted to live in Cicero, it was met with firebombs and rifle shots. Nobody was convicted of these attacks, either. Cicero’s council president boasted after the clash that “the area is well-secured.”

As a reference regarding how even the idea of dedicating then-relevant amounts of money to African Americans who were negatively affected would be insufficient to cover their long-term losses, Chapter 11 gives this note:

In 1948, for example, Levittown [a segregated manufactured suburb, required by the FHA to be only available to families of “the Caucasian race”] homes sold for about $8,000, or about $75,000 in today’s dollars. Now, properties in Levittown without major remodeling (i.e., one-bath houses) sell for $350,000 and up. White working-class families who bought those homes in 1948 have gained, over three generations, more than $200,000 in wealth.

The book makes a pass at describing how the mortgage interest deduction largely benefits non-African Americans (as they are more likely to be able to buy a home), but also points out another policy I hadn’t considered:

Along with the mortgage interest deduction, another policy that on its face is race-neutral but has a discriminatory effect is our national transportation system. We have invested heavily in highways to connect commuters to their downtown offices but comparatively little in buses, subways, and light rail to put suburban jobs within reach of urban African Americans and to reduce their isolation from the broader community. Although in many cases urban spurs of the interstate highway system were unconstitutionally routed to clear African Americans away from white neighborhoods and businesses, that was not the system’s primary purpose, and the decision to invest limited transportation funds in highways rather than subways and buses has had a disparate impact on African Americans.

And additional comments on how several housing subsidies unintentionally exacerbate segregation:

Without an intent to do so, each program has been implemented in a manner that deepens racial segregation. One, the Low-Income Housing Tax Credit, subsidizes developers whose multiunit projects are available to low-income families. The other, Housing Choice Vouchers (popularly known as “Section 8”), subsidizes families’ rental payments so they can lease housing that they would not otherwise be able to afford. In the tax credit program, communities can veto developers’ proposals, something that officials in middle-class areas don’t hesitate to do. […] In the Section 8 program, landlords in most states and cities can legally refuse to rent to tenants who use housing vouchers, although a few jurisdictions prohibit such discrimination. The voucher amount is usually too small to allow for rentals in middle-class areas.

The last chapter in the book, “Considering Fixes”, begins with a comment on why Rothstein didn’t just lead with potential fixes:

effective remedies for racial inequality will be unlikely unless the public is disabused of the de facto myth [Rothstein’s name for the claim that segregation is only widespread because people self-segregate] and comes to understand how government at all levels insulted our constitutional principles regarding race.

He gives one potential solution in the form of “inclusionary zoning” ordinances, requiring “developers to set aside a share of units in new projects for low- or moderate-income families”.

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.

While he remarks that integrating schools is a good goal, he is dim on the prospects of voluntary programs for doing so, largely for practical reasons:

Instead, [the school district in charge of Verde Elementary in North Richmond] adopted a voluntary program in which African American children could choose to attend a predominantly white school. By 1980 only one in six black children had done so. These were generally children with the most educationally sophisticated and motivated parents. Their transfers left schools in Richmond’s black neighborhoods with the most disadvantaged students, those with the lowest academic performance and greatest behavioral challenges. Even today, as low-income Hispanic families replace African Americans in North Richmond, all students at the Verde School receive subsidized lunches, and 58 percent of its parents have not completed high school.

In an interesting FAQ at the end of the book, Rothstein clarifies his argument against the idea that African Americans prefer to self-segregate:

The idea that African Americans themselves don’t want to integrate is a white conceit. Many thousands of African Americans risked hostility, even violence, when daring to move into predominantly white neighborhoods. This history has generated considerable reluctance by other African Americans to try to follow them. When African Americans move to predominantly white neighborhoods today, they remain more likely to be stopped by police when driving home or kept under unusual surveillance in retail stores when shopping. Teachers are more likely to expect their children to be less capable and to be unqualified for challenging classes. African American pupils are often disciplined severely in integrated schools for minor misbehavior that, in the case of whites, schools ignore.

It is reasonable to expect that many, perhaps most African Americans will choose segregation unless they are welcomed into white communities whose interracial hospitality becomes widely known. Until then, African Americans’ avoidance of integration cannot be considered a free choice. Reform of police practices and school academic and disciplinary policies in predominantly white areas is essential, together with incentives for African Americans to take the chance of believing that those reforms are real.

He also doesn’t try to present desegregation as positive for everyone, but rather as something necessary to repair lasting damage to American society:

“Why emphasize our obligation to remedy constitutional violations? You should instead present it as an opportunity because everyone benefits from a diverse society.”

All this is true. But we delude ourselves if we think that desegregation can only be a win-win experience for all. There are costs involved, and some may be substantial.

If we require, as we should, the Section 8 and Low-Income Housing Tax Credit programs to facilitate movement of low-income African American families into middle-class communities, those communities may experience an increase in crime. It is more likely to be petty than violent crime, and it won’t approach the violence visited upon African Americans to enforce their segregation. Nonetheless, pretending that integration can be cost-free dooms it to backlash when residents of middle-class communities realize they were duped.


Offering incentives to encourage African Americans to settle in white neighborhoods will involve substantial financial costs. If we include low-income children in upper-middle-class schools, we will have to divert resources to special counseling and remedial programs, and taxes will have to rise to pay for them or elective programs may have to be cut. If we mislead white parents into thinking that integration will be cost-free, they will be enraged, understandably so, when these costs become apparent.

Finally, Rothstein offers a bit of commentary on why he focused almost exclusively on African Americans in the book:

Yet horrific though our treatment of Mexican immigrants and Puerto Ricans has sometimes been, it is not comparable to our treatment of African Americans. In many communities, restrictive covenants prohibited sales not only to African Americans but also to Hispanics (and frequently to Jews, the Irish, Asians, and others deemed “non-Caucasians”). Yet judges often deemed Mexican Americans to be “Caucasians” and not subject to exclusion by restrictive covenants. As the twentieth century progressed, property and residency restrictions mostly faded away for all except African Americans. Only African Americans have been systematically and unconstitutionally segregated for such a long period, and with such thorough repression, that their condition requires an aggressive constitutional remedy.

The book ends with an impressive references section that my eReader indicated would take over two and a half hours to read at a normal pace, though I checked very few of them.

Overall, I would say that the book is definitely worth reading, particularly if you aren’t necessarily aware of much of the treatment of African Americans between World War II and the current day. I do still have some reservations from some of the text I know to be a bit iffy on content, but the main points of the book are generally accurate as far as I’ve investigated them.

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