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

 by Richard Rothstein

Liveright, 345 pp.

By Jim Kaplan

Most people, probably even most liberals, have completely the wrong idea about housing segregation in America, according to The Color of Law.  In the popular imagination, there are many reasons African Americans live in one part of town, and whites of every income and ethnic background live in separate, different parts of town.  African-Americans are mostly poor, one progressive variant of the argument goes, and can’t afford to live in better places.  Or African-Americans like to live together, in places with no white people.  Or even that segregation is the result of discrimination that ended decades ago and that continued racial segregation doesn’t have anything to do with more recent actions by white people or government.

Richard Rothstein’s new book tells us none of that is true.  The Color of Law is one of the most strongly revisionist histories of civil rights in a long while. It says that government has been deliberately trying to segregate the races in America since at least the early 20th century, and that those efforts effectively continue today, albeit in less outrageous form than before.  The implications of this conclusion are profound, not least in the way it ought to inform the way the Supreme Court considers electoral gerrymandering in its coming term. 

That is because if true, Rothstein’s revisionism eviscerates the leading argument that Republicans use to justify the fact that Democrats lose elections in legislative districts even though they get more votes in a state (or the nation) overall:  Republicans argue that Democrats just like to live closely packed together in cities, and Republicans just happen to be spread over the national landscape more “efficiently.”  If Rothstein is right, that racial and political distribution is not random or mainly the result of voluntary “sorting,” but rather it is the direct result of discriminatory state action, which renders it constitutionally impermissible as justification for strategically drawn legislative districts.

Rothstein starts his history in the early twentieth century, as African-Americans came off the land in the South and started to migrate to cities.  Almost immediately, municipal governments responded by enacting restrictive zoning, making affluent and middle-class neighborhoods  off-limits to most African-American families on economic grounds.  Developing suburban areas took similar actions.  And restrictive covenants in many land titles -- enforceable in U.S. Courts until the late 1940’s -- meant that many homeowners could not sell to African-Americans.  Local and state governments reinforced this separation by having police forces turn a blind eye (and sometimes actively support) terrorism against African Americans who dared to attempt to traverse the hard geographical racial divide that white Americans by and large favored.

The Federal government, Rothstein says, played a critical role as well.  From the 1930’s onward, with the creation of the Federal Housing Administration (FHA) and the federal government’s assumption of a leading and direct role in financing and building U.S. housing, the continuing basic tenet of the national housing policy was separation of the races.  African-Americans were not permitted in apartment buildings in non-black areas financed and built by the FHA. The FHA’s original “whites-only” appraisal standards made getting a federal insured loan almost impossible for African Americans to obtain, starting with the creation of FHA in 1934.  All-white exclusionary housing developments in fast-growing suburbs were, particularly after 1945, financed by the federal government.  And just as important, public housing in the U.S. was almost always built in areas that would reinforce the existing racial divisions of neighborhoods. 

What is most shocking about Rothstein’s narrative is the breathtaking fraud and hypocrisy that it recounts.  From the post-World War II era onward, certainly, the official position of both major political parties was pro-civil rights and, in most cases, explicitly against any sort of legal discrimination against African-Americans in voting, education, health care, public accommodations and, of course, housing.  But the clear implications of Rothstein’s book is that while harvesting black and white liberal political support for being pro-civil rights, government itself continued to discriminate explicitly in housing policy long after the Civil Rights Act of 1964 and the Fair Housing Act of 1968 became law. This bias continues today, at least with respect to the placement of integrated housing in predominantly white areas.  Just a few weeks ago, The New York Times reported from Houston in a story headlined: “Program to Spur Low - Income Housing is Keeping Cities Segregated.”

The effects of this duplicity are carefully chronicled by Rothstein.  Racial segregation has led to obscene concentrations of poverty, toxic crime, particularly murder rates, destruction of communities through harsh incarceration policies, terrible education, serious health issues and deficiencies in care, and massive underinvestment by a private sector that essentially avoids large blocks of African-American-inhabited space in almost every U.S. city of any size.  Rothstein lays out proposals to remedy segregation — through explicit policies favoring desegregation, like mandating new public housing be placed in white or integrated neighborhoods, for example.

These are all well worth considering.  But the political dimensions of Rothstein’s conclusions are an insightful gift this book gives as well, because it remains true that only by addressing and remedying the political polarization that flows from racial segregation can the U.S. adequately address the housing issues, and all those problems that flow from them.

This is because the packing together of African-American communities in cities and metro areas by the sort of state action that Rothstein documents, has furthered the white vs. non-white, adversarial nature of U.S. politics.  In the current day, the voters in many cities, segregated as they are, have in many cases begun to treat associated problems of crime, poverty, homelessness, poor education and so forth, as “our” issues, issues of common urban concern irrespective of race.  White voters in cities are normally supportive, to varying degrees, of addressing these issues of concern to the African-American community, and political accommodation (even coalitions) between white and non-white have become possible. 

In many ultra-segregated suburbs, exurbs and rural areas, such accommodation seems barely possible, and racism and its ugliest offshoots (nativism, anti-immigrant scapegoating and extremism, and weird alt-right politics) prosper.  This polarized politics (and society), flowing as a direct result of the highly segregated national landscape put in place by successive federal, state and local government action, is a leading cause of the national political depression — the deep cynicism and alienation, the “curse on all your houses” — in which the U.S. finds itself today.

Rothstein’s analysis is more complete and nuanced than the brief foregoing description might indicate.  He does not attribute all current ills to housing segregation — for example, he notes the very real effect of stagnating wages for those who lack college or advanced degrees, the decline of unions, and the failure to raise the minimum wage all as factors exacerbating the ills caused by housing segregation. 

It is impossible to do justice to his chapter on remedies briefly.  He puts forward numerous ideas like the elimination of restrictive single-family zoning, limitation of the federal mortgage deduction to homes in those communities that make affordable housing available, and direct federal subsidies to African-Americans to purchase homes in integrated communities. 

Still, the nagging but very practical thought lingers:  it is not possible to effect these remedies without a very real change in political climate.  And the long history of housing and racial segregation has ironically led to a deep political divide that makes those remedies currently, at least, unattainable.

Jim Kaplan has been a practicing lawyer in Chicago for the past 35 years and is a partner at Quarles & Brady LLP. He has worked on a variety of pro bono matters, including those involving post-conviction challenges to wrongful convictions that have led to approximately a dozen exonerations and/or releases of those previously convicted of major offenses.