Colorblind Law — NOT

Dianne Feeley

The Color of Law:
A Forgotten History of How Our Government Segregated America
By Richard Rothstein
New York: Liveright Publishing Corporation, 348 pages, paper $17.95, cloth $27.95

CONTRARY TO VARIOUS U.S. Supreme Court rulings that sidestepped or outright denied the role of local, state and federal governments in imposing racial segregation in America, The Color of Law recounts the many ways that bias has been, in fact, state sponsored. In a dozen chapters Richard Rothstein outlines the particular mechanisms that prevented African Americans from exercising their constitutional rights. Although his focus is housing segregation he discusses how that in turn leads to school segregation.

Segregation has impoverished African-American communities, often confining them to the most toxic and air-polluting areas. Housing stock is older and the infrastructure less maintained. As a result, African-American children develop major health problems, particularly high rates of asthma and lead poisoning.

Whether the lead is absorbed through water pipes or through peeling lead paint, it attacks the developing brains of the youngest and most vulnerable. Yet these children then attend segregated schools, where the handicap of impoverishment is reinforced.

This two-step process of segregated communities and segregated education deprives African Americans of resources available to most white working-class families. It cuts them off from the informal networks through which people learn about job opportunities and prevents them from building up the wealth that working people accumulate through their housing.

Rothstein points to the reality that the median white household wealth is 90% greater than Black household wealth. This means that African-American families have less ability to borrow from their home equity in emergencies, whether to tide the family over during layoffs or to weather medical catastrophes. In the 2008-09 economic crisis Black families disproportionately lost their homes.

Segregation by State Action

In the preface Rothstein states that “Residential racial segregation by state action is a violation of our Constitution and its Bill of Rights.” (viii) He cites the Fifth Amendment, which prohibits the federal government from treating citizens unequally, as well as the post-Civil War era Thirteenth and Fourteenth Amendments. Additionally, with the passage of the 1866 Civil Rights Bill, Congress outlawed actions that were a characteristic of slavery, such as racial discrimination in housing.

Due to the severe effects of segregation, Rothstein argues, “desegregation is not just a desirable policy; it is a constitutional as well as moral obligation that we are required to fulfill.” (xi) In his epilogue the author refutes Chief Justice John Roberts’ remark that residential segregation “is a product not of state action but of private choices, it does not have constitutional implications.” Flowing from Roberts’ statement is the conclusion that government remedies are out of the question.

Rothstein maintains the opposite is true: “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.” (215)

If African Americans, at least since the Civil War, were guaranteed these rights, how could odious laws and practices that enforced housing segregation flourish, North and South? Through specific cases, Rothstein outlines the various ways. These include local zoning laws, construction of segregated public housing, the federal requirement prohibiting mortgages in integrated neighborhoods, and the approval of restricted covenants.

Several chapters build Rothstein’s case that the Federal Housing Administration (FHA) — created by Franklin Roosevelt in 1934 — played a huge role in not only promoting systematic “redlining” but also in financing white developments such as Levittown.

In fact, the book’s cover reproduces a color-coded map similar to those created for every U.S. metropolitan area for a New Deal housing agency. These maps were to aid assessing the risk of a homeowner’s possible mortgage default.

In 1935 the FHA produced an Under­writing Manual instructions for outlining the process of evaluating mortgages. The maps were colored green to represent a white middle-class area while red was considered a “risky” neighborhood. Rosenfeld comments, “A neighborhood earned a red color if African Americans lived in it, even if it was a solid middle-class neighborhood of single-family homes.” (64)

Each chapter begins with a photograph or advertisement that illustrates the role the government at one level or another played in segregated housing. This includes a 1941 photograph of a wall constructed by a developer in Detroit who wanted to build whites-only housing but was forced by the FHA, in order to obtain financing, to delineate the area from nearby African-American housing. (The wall still stands today, although it has been painted with murals. And since Detroit is 82% Black, the housing on both sides is now occupied by African Americans.)

VA Segregation Schemes

Following World War II, the newly established Veterans Administration (VA) began guaranteeing mortgages to returning veterans. It followed the FHA housing policies; by 1950 the two federal agencies underwrote half of all new mortgages. They also were the gold standard for banks and insurance companies.

Levittown with its 17,500 homes could only have been built with the pre-approval of the FHA. Rothstein details what pre-approval meant — reviewing and approving design specifications, use of construction materials, proposed sale price for two-bedroom homes with no down payment, neighborhood zoning restrictions (no commercial or industrial sites), and “a commitment not to sell to African Americans.”

In fact, “The FHA even withheld approval if the presence of African Americans in nearby neighborhoods threatened integration.” (71)

Similarly, Metropolitan Life Insurance Company built New York City apartments such as Parkchester (12,000 units) and Stuyvesant Town (9,000 units) for whites only with state and city cooperation. In fact, to build Stuyvesant Town the city had to condemn and clear an 18-square block integrated neighborhood. It transferred the property to the insurance company, which also won a 25-year tax abatement. Forty percent of those evicted were Black or Puerto Rican; many were only able to find segregated housing elsewhere.

Public Housing, A Tool for Segregation

Rothstein reviews the history of U.S. public housing, which was first built to alleviate the housing shortage during World War I. At that time 83 projects in 26 states housed 170,000 white workers and their families, excluding African Americans.

In the early days of the New Deal, the Public Works Administration (PWA) expanded the program and opened it to Black families, but only under segregated conditions. Of the PWA’s 47 projects, 17 were assigned to African Americans, two dozen reserved for whites only, and six were complexes with separate buildings for white and Black families.

The Color of Law points out that the real estate industry was always bitterly opposed to public housing. Once the housing shortage eased, white families, able to obtain mortgages in the post-World War II era, could move to the more spacious suburbs.

Further, the real estate lobby was successful in having federal and local regulations set strict upper-income limits for families in public housing. Under the new regulations, previous low-rise, scatter-site, well-maintained public housing patterns were transformed. By the late 1960s this housing was “a warehousing system for the poor.”

Rothstein concludes the chapter on public housing with the comment: “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.” (37)

Fighting for Integrated Housing

While noting that individual prejudice does exist, Rothstein maintains that the state had an obligation to resist such views but instead “endorsed and reinforced it, actively and aggressively.” (216) The author cites several cases where a union, a church, a civil rights organization or even a progressive developer supported Blacks in their attempt to secure housing.

For example, the case of Ford workers in the UAW local in Richmond, California outlines both the union’s determination to secure integrated housing and government opposition. In the 1950s Ford closed its plant there, moving to a new facility in Milpitas, 50 miles south. Union leaders met with Ford executives and negotiated an agreement to transfer all 1,400 workers, including 250 Blacks.

Milpitas residents responded by passing an ordinance allowing only single-family homes. Developers then got approval from the FHA to build inexpensive single-family homes. But the approval was contingent on prohibiting mortgages to African Americans.

The union then asked the American Friends Service Committee to help the chair of the local’s housing committee find a developer willing to build integrated housing. After locating four possible sites, only to be outfoxed through the quick adoption of new zoning laws, the developer gave up. A second developer proposed building two segregated projects — the white one in a suburban area and the nominally integrated one in a heavily industrialized area.

Given the possibility of housing near to the plant, even if segregated, union members debated whether to accept the proposal, voting to adopt a policy that it would only support integrated housing. Many Blacks who transferred to the Milpitas plant drove back and forth to Richmond every day until the late 1960s, when a rising civil rights movement changed the dynamic.

Although some of Rothstein’s stories end in success, all had to overcome governmental policies. Woven through the chapters is the story of how individuals, Black and white, and the organizations they turned to, fought for integrated housing. But detailed plans were blocked by the FHA and VA.

Rothstein also discusses various court challenges beginning in 1883, when the U.S. Supreme Court rejected the argument “that exclusions from the housing market could be a ‘badge or incident’ of slavery” under the Thirteenth Amendment. It would take a 1968 Supreme Court decision to reject that 1883 interpretation. Although the 1968 Fair Housing Act determined that racial discrimination in housing is unconstitutional, enforcement has always been weak.

The author concludes with a list of specific things that could have been done: telling developers they could only have FHA guarantees if they built integrated housing, refusing to endorse restrictive covenants, denying licenses to real estate agents who attempted to impose segregation, opposing segregated schools, enabling equal access of African Americans to labor rights, and so on.

He also offers a few suggestions regarding what can be done today. Frankly I fought his suggestions too mild, but Rothstein’s bedrock principle is that affirmative programs are needed to tear down the walls that condemn a sizable proportion of Black and brown people to inferior education and housing.

He remarks that “segregation can give whites an unrealistic belief in their own superiority.” (196) Realizing that the task of reversing segregation and inequality is difficult, Rothstein maintains that we must recognize what has been done and accept responsibility for change.

Even if many of the laws and racist practices are known to the reader, The Color of Law is excellent in telling concrete stories that summarize a history of discrimination that must be understood in order to be transformed.

January-February 2019, ATC 198