The major unfinished business of the civil rights movement, writes Richard Rothstein in his powerful new book, The Color of Law, is housing. Over the past fifty years, we’ve made considerable progress reducing discrimination in restaurants, hotels, transportation, voting, and employment, he writes, but residential segregation remains relatively high.
A half century after the Kerner Commission found that “our nation is moving toward two societies, one black, one white—separate and unequal,” African Americans are much more likely than whites of similar incomes to live in poor neighborhoods. This is tragic, Rothstein notes, because where you live implicates so much else in life—access to good schools, transportation, employment, and wealth.
Why have we made so much less progress on housing than on other frontiers of the civil rights movement? Perhaps biased whites don’t want to live in neighborhoods where black representation rises above a modest threshold, while middle-class blacks have an understandable desire to be where they are not a small minority and don’t have to face discrimination from whites.
But these phenomena are rooted in something deeper, Rothstein suggests: a powerful legacy of deliberate government action that has still not been remedied. Much of what we call de facto segregation, he argues, is the result of “a century of social engineering on the part of federal, state and local governments that enacted policies to keep African Americans separate and subordinate.” The inheritance today is continued racial distrust.
Rothstein, a research associate at the liberal Economic Policy Institute and former education columnist for the New York Times, has produced a searing indictment of racially segregating policies, enacted, as he notes, by otherwise liberal presidents such as Woodrow Wilson and Franklin Roosevelt. While not groundbreaking for experts familiar with this history, The Color of Law is a story particularly well told and should help educate a younger generation of Americans. (Disclosure: I have known Rothstein casually for almost two decades, and he contributed a chapter to a book I edited on educational inequality in 2000.)
Residential areas were comparatively integrated in the nineteenth century, Rothstein says, until a set of deliberate acts to segregate began in earnest in the early twentieth. In 1910, Baltimore pioneered racial zoning by prohibiting blacks from buying in majority-white areas, or whites in majority-black areas. Such policies were struck down by a 1917 U.S. Supreme Court decision, so communities switched to economic zoning, such as requiring that neighborhoods consist exclusively of single-family homes or have minimum lot sizes. Because African Americans were (and are) disproportionately low income, economically exclusionary zoning accomplished much of the same end result.
But segregationists also needed new ways to keep middle-class African Americans out of white neighborhoods, so many homeowners adopted racially restrictive covenants, which required purchasers to agree not to sell to blacks alongside other “undesirable” uses of the property. One such provision forbade selling the home to someone who would construct “any slaughter house, smith shop, forge furnace,” or “for any structure other than a dwelling of people of the Caucasian race.” These provisions were initially upheld in the courts on the theory that the covenants were private contracts and not subject to the Constitution.
That was a lie, of course, because contracts don’t have force without the power of the state, and in city after city, courts and sheriffs evicted African Americans from homes they had rightly paid for to enforce racially restrictive covenants. Meanwhile, in the 1930s, the federal government further deepened segregation as the newly created Federal Housing Administration, which was designed to increase homeownership by guaranteeing mortgages, instructed appraisers to focus on all-white communities. An FHA manual suggested that the best financial bets were those in which there were safeguards, such as highways separating communities to prevent “the infiltration of lower class occupancy, and inharmonious racial groups.” In 1940, the FHA actually denied insurance for a white development located near an African American community until the builder agreed to construct a concrete wall, a half-mile long and six feet high, to separate the two neighborhoods.
In 1948, civil rights activists won a victory when the Supreme Court reversed its earlier ruling and unanimously struck down racially restrictive covenants as a violation of the Constitution. Even then, white mobs routinely harassed black families moving into white communities, subjecting them to violence as police stood by. Not until 1968 did the Fair Housing Act outlaw racial discrimination in housing and make violence to prevent integration a federal crime.
Rothstein toiled on this book for a decade, and the hard work shows. The research is exhaustive, the prose is powerful and direct, and the blending of individual stories and larger trends is masterful. The greatest strength of the book is that Rothstein has brought to twenty-first-century readers a powerful exposé that musters the moral outrage that accompanied the devastating indictment in the 1967 Kerner Commission report.
And yet, the similarity to the Kerner report also constitutes the book’s greatest weakness. The world has changed profoundly in the last fifty years, and those changes are not fully reflected in Rothstein’s work. He writes again and again about “black” and “white,” as if we had not seen a massive influx of Latino immigrants, who face their own discrimination in America. Rothstein relegates discussion of Latinos to a “frequently asked questions” section at the end of the book, where he dismissively suggests that “few have been ‘segregated.’ ” (Rothstein rejects the term “people of color” for that reason.) But in 2010 researchers found that the typical African American and the typical Hispanic both lived in neighborhoods that were 35 percent white.
Rothstein also mostly ignores critical trends in racial and income segregation by residence since 1970. The black/white dissimilarity index (in which 0 is perfect integration, and 100 is absolute segregation) declined from 79 in 1970 to 59 in 2010. But as Harvard’s Robert Putnam has noted, “while race-based segregation has been slowly declining,” we have seen the rise of “a kind of incipient class apartheid” as income segregation has risen significantly.
Part of the story, as William Julius Wilson of Harvard has documented, is that civil rights laws, including the Fair Housing Act, reduced discrimination against middle- and upper-class African Americans who could afford to move out of ghettos. Today, Wilson notes, income inequality within the African American community is larger than within the white community. Left behind are a truly disadvantaged group of African Americans who live in highly concentrated poverty.
Although racially restrictive covenants and racial zoning laws are, thankfully, illegal, class-based zoning is widespread. As Rothstein notes, zoning laws such as those excluding apartments or houses on modest lot sizes were upheld in a 1926 Supreme Court decision that, tellingly, likened an apartment house to “a parasite,” akin to “a nuisance.” Just as racial segregation is not just the natural reflection of individual choices, so too, our rising economic segregation is not just the result of market forces but is shaped by government regulations that exclude.
Nevertheless, when it comes to remedies, Rothstein’s first instinct is to propose race-based policies, including those specifically aimed at helping more privileged African Americans. He suggests that the federal government purchase the next 15 percent of houses in what have been all-white communities like Levittown, New York, and sell them to African Americans at roughly 20 percent of the current market value to approximate what their grandparents would have paid for the properties had they not been discriminated against. He also suggests a federal financial subsidy to support middle-class African Americans moving into racially exclusive suburbs.
To his credit, Rothstein acknowledges that these ideas are “politically and judicially inconceivable” and quickly pivots to class-based remedies that are much more legally sustainable, and, as a matter of politics, could theoretically unite the interests of working-class communities of color who supported Hillary Clinton and working-class whites who favored Donald Trump.
Rothstein calls for an elimination of class-based zoning, or at least reducing the mortgage interest deduction in jurisdictions that don’t accommodate their fair share of low-income and moderate-income housing. These are unlikely to be enacted at the federal level, but, as Rothstein notes, progressive jurisdictions from New Jersey to Massachusetts are leaders in limiting exclusionary zoning. He also supports inclusionary zoning laws, like those used in Montgomery County, Maryland, that set aside a proportion of new development units for families of modest means. There are interesting alliances to be made between civil rights groups, libertarians who oppose government regulations, and certain developers, who all chafe at exclusionary zoning laws.
As we come up on the fiftieth anniversary of the Fair Housing Act next year, addressing exclusionary zoning could begin to remedy the growing spatial divide by class that disproportionately affects African Americans and continues to prevent racial reconciliation. Rothstein’s provocative book lays the moral groundwork for a strong government role in undoing the harm that government helped to create in the first place.