Review: Richard Rothstein’s “The Color of Law”

by Miles Raymer

The Color of Law

It would be difficult to enumerate all the ways I benefitted and continue to benefit from the geographic circumstances of my upbringing. As a child in Northern California, I assumed that all Americans had relatively equal access to clean air and water, healthy food, comfortable shelter, good schools, and nature. My parents and teachers assured me that I was much luckier than most, but it took decades for that message to sink in––a process I’m still undergoing. The Color of Law marks an important milestone in this journey. Richard Rothstein’s meticulous history of segregation in post-Reconstruction America will edify and infuriate readers, bringing us all one step closer to our true history and revealing how we can pursue reconciliation in the years ahead.

Rothstein’s approach hinges on a legal distinction between two interrelated forms of segregation: de facto and de jure. De facto segregation results from the self-interested and often-disconnected decisions of various groups and institutions, whereas de jure segregation results from intentional and coordinated government policies:

Until the last quarter of the twentieth century, racially explicit policies of federal, state, and local governments defined where white and African Americans should live. Today’s residential segregation in the North, South, Midwest, and West is not the unintended consequence of individual choices and of otherwise well-meaning law or regulation but of unhidden public policy that explicitly segregated every metropolitan area in the United States. The policy was so systemic and forceful that its effects endure to the present time. Without our government’s purposeful imposition of racial segregation, the other causes––private prejudice, white flight, real estate steering, bank redlining, income differences, and self-segregation––still would have existed but with far less opportunity for expression. Segregation by intentional government action is not de facto. Rather, it is what courts call de jure: segregation by law and public policy. (vii-viii)

This is a bold thesis, but Rothstein backs it up with mountains of evidence acquired over decades of painstaking research. In concise but exacting detail, The Color of Law exposes the insidious political mechanisms employed from coast to coast to deny African Americans their right to fair treatment as granted by the Fifth, Thirteenth, and Fourteenth Amendments of the United States Constitution (viii). These include discriminatory policies related to public housing, zoning rules, restrictive covenants on deeds, home loans, ownership equity, property taxes, highway construction, public transportation investment, unionization, community safety, crime enforcement, real estate licensing, wages, and tax exemptions for pro-segregation institutions.

There are many valuable lessons to be pulled from these pages, but one of the most important is the sheer scale and pervasiveness of this problem. Since the end of Reconstruction in 1877, African Americans have been caught between the fumes of de facto segregation bubbling up from below and the sledgehammer of de jure segregation crashing down from above. Here’s a demonstrative summary from Rothstein’s chapter on home ownership:

Government’s commitment to separating residential areas by race began nationwide following the violent suppression of Reconstruction in 1877. Although the Supreme Court in 1917 forbade the first wave of policies––racial segregation by zoning ordinance––the federal government began to recommend ways that cities could evade that ruling, not only in the southern and border states but across the country. In the 1920s a Harding administration committee promoted zoning ordinances that distinguished single-family from multifamily districts. Although government publications did not say it in as many words, committee members made little effort to hide that an important purpose was the prevent racial integration. Simultaneously, and through the 1920s and the Hoover administration, the government conducted a propaganda campaign directed at white middle-class families to persuade them to move out of the apartments and into single-family dwellings. During the 1930s the Roosevelt administration created maps of every metropolitan area, divided into zones of foreclosure risk based in part on the race of their occupants. The administration then insured white homeowners’ mortgages if they lived in all-white neighborhoods into which there was little danger of African Americans moving. After World War II the federal government went further and spurred the suburbanization of every metropolitan area by guaranteeing bank loans to mass-production builders who would create the all-white subdivisions that came to ring American cities. (75)

Housing discrimination didn’t stop with laws and customs, but exploded into homes and terrorized the bodies of African Americans who tried to integrate. Take this particularly upsetting but representative example from mid-century Chicago:

In the first five years after World War II, 357 reported “incidents” were directed against African Americans attempting to rent or buy in Chicago’s racial border areas. From mid-1944 to mid-1946, there were forty-six attacks on the homes of African Americans in white communities adjacent to Chicago’s overcrowded black neighborhoods; of these, twenty-nine were arson-bombings, resulting in at least three deaths. In the first ten months of 1947 alone, twenty-six arson-bombings occurred, without an arrest. (144-5)

Perhaps Rothstein’s most important findings are the manifold cycles of segregation––physical and psychological––that, once established, sustain and deepen themselves over generations. The nefarious notion that whites and blacks don’t mix became a self-fulfilling prophecy in cities and communities nationwide (46, 51). The Federal Housing Administration‘s longstanding but unsupported “claim that integration undermined property values” had a similar effect (93, 95), as did “the creation of racial ghettos” (172) and “the consequences of being exposed to neighborhood poverty” (187). Those are just a handful of the many such cycles Rothstein reveals.

Calling out de jure segregation is so important, Rothstein argues, because “the cycle can only be broken by a policy as aggressive as that which created ghettos of concentrated poverty in the first place” (188). He elaborates:

If segregation was created by accident or by undefined private prejudices, it is too easy to believe that it can only be reversed by accident or, in some mysterious way, by changes in people’s hearts. But if we––the public and policy makers––acknowledge that the federal, state, and local governments segregated our metropolitan areas, we may open our minds to considering how those same federal, state, and local governments might adopt equally aggressive policies to desegregate. (198)

Readers more informed than I may find points of disagreement while working their way through The Color of Law, but in general I was impressed with Rothstein’s ability to anticipate and dispense with possible objections to his strong interpretation of de jure segregation. In fact, he concludes with an FAQ section devoted entirely to this goal. As far as I can tell, the book’s only major downside is that it’s incredibly depressing. But it also carries a unifying message that segregation has harmed all Americans, and is therefore something we all have a stake in solving:

We means all of us, the American community. This is not a book about whites as actors and blacks as victims. As citizens in this democracy, we––all of us, white, black, Hispanic, Asian, Native American, and others––bear a collective responsibility to enforce our Constitution and to rectify past violations whose effects endure. (xv, emphasis his)

As a nation, we have paid an enormous price for avoiding an obligation to remedy the unconstitutional segregation we have allowed to fester. African Americans, of course, suffer from our evasion. But so, too, does the nation as a whole…Many of our serious national problems either originate with residential segregation or have become intractable because of it. (195)

As Americans, and increasingly as global citizens, it’s our job to learn how to live with one another. Not beside or across from or around––but with. Working to mitigate and eventually reverse the historical legacy of segregation is an indispensable part of that process.

Rating: 7/10