In 2017, Richard Rothstein published The Color of Law, a stunning indictment of 20th-century American policy makers, Democrats and Republicans alike, who systematically discriminated against Black citizens in order to socially engineer pervasive racial residential segregation—a tragedy that endures to this day.
The book, which I reviewed in the Monthly, amassed considerable evidence about the array of tools white policy makers employed to bring about segregation: racial zoning, racial redlining, and state enforcement of racially restrictive covenants, among others. These government actions—much more than private discrimination or consumer choice—created not only high levels of racial segregation but also the resulting wealth and opportunity gaps between Black and white Americans. If this argument now sounds like conventional wisdom, Rothstein deserves much of the credit for making it so.
The book was a blockbuster, selling almost 1 million copies, and led the broader public generally, and housing policy makers in particular, to engage in a long-overdue reflection about how racism tilted the residential playing field against Black Americans in a way that has never been fully redressed.
The Color of Law was a work of history and did not offer detailed public policy prescriptions. Many readers asked, “What can we do?” Now Rothstein and his daughter, the housing policy expert Leah Rothstein, seek to answer just that question in a new book, Just Action. (Disclosure: I have known Richard Rothstein casually for a quarter century, and he contributed a chapter to a book I edited on educational inequality in 2000.)
What is to be done? The Rothsteins offer several smart ideas, backed up by engaging stories from various parts of the country about how the reforms played out. Unfortunately, however, they also consistently fall into a common trap among elites on the left: assuming that because a problem has a racial origin, the best remedy is not just anti-discrimination policies but also racial preference policies (such as those providing special home down payment assistance limited to Black people). These approaches are legally vulnerable and politically unsustainable, and fail to appreciate the changing nature of inequality in America.
The book starts out promisingly enough, by highlighting for readers the imperative of dismantling racial segregation. Residential segregation, the authors argue, is not only a fountainhead of racial inequality, it also helps polarize the country politically by keeping many Black and white Americans from getting to know one another better as neighbors and school classmates. Although it is easier to put a “Black Lives Matter” sign on your lawn than take steps to dismantle segregation, they say, people need to do both if they want to make a real difference.
In a series of chapters, the authors propose a number of good ideas—being implemented in real places—to combat racial discrimination and support economically disadvantaged people of all races.
Real estate agents today sometimes steer home seekers to neighborhoods based on their race. In Long Island, for example, Newsday sent paired testers of different races who had the same goals and same financial circumstances, and found that agents treated Black buyers differently from white buyers almost half of the time. The Rothsteins appropriately call for more funding of fair housing centers that send out testers to expose such discrimination for prosecution.
Real estate agents today sometimes steer home seekers to neighborhoods based on their race. In Long Island, for example, Newsday sent paired testers of different races and found that agents treated Black buyers differently from white buyers almost half of the time.
The Rothsteins also correctly recognize that ostensibly race-neutral policies—like zoning policies that discriminate by income by prohibiting multifamily housing—play a big role in perpetuating racial segregation. They write, “Single-family zoning may be the most powerful policy that perpetuates racial inequality.” The authors give the example of two nearby Connecticut communities, Woodbridge and New Haven. In Woodbridge, 98 percent of residential lots are zoned for single-family homes only on lot sizes of at least an acre, whereas New Haven is relatively open to multifamily homes and has many renters. Affluent Woodbridge is “almost-all-white,” while Black and Hispanic people make up two-thirds of the population in New Haven. The Rothsteins note that it’s possible to change exclusionary zoning laws, pointing to recently successful efforts in California and Oregon to end single-family exclusive zoning throughout those states.
The Rothsteins outline other good ideas. They suggest providing an incentive for states to locate affordable housing near well-resourced public schools. They applaud Washington State’s law to make discrimination against Section 8 housing choice voucher holders illegal—and to make landlords who violate the law pay “more than four times the monthly rent, court costs, and attorney fees.” To avoid unfair evictions, Cleveland provides tenants with a right to free legal counsel in eviction proceedings, another smart policy the authors highlight.
The Rothsteins take a serious wrong turn, however, when they back a series of reforms that are not anti-discriminatory or universal but instead take the form of what they refer to as “racially explicit preferences.”
Government support for helping people come up with a down payment for purchasing a home, they say, should “target assistance explicitly to moderate- and lower-income black home buyers.” They call for investing in “segregated black neighborhoods” as opposed to struggling Hispanic, Asian, or white neighborhoods. And when “inclusionary zoning” laws require new developments to include some subsidized housing, the Rothsteins say “regulations should authorize racial preferences for the below market-rate units.”
In theory, this approach has some appeal; Black people were targeted in the 20th century for unequal treatment, so they should receive preference today to even things out, the logic suggests. This view has gained traction in recent years—particularly in elite white circles—following the election of a racist president in 2016 and the murder of George Floyd in 2020.
Although now in vogue among some highly educated white Democrats and some Black people, the racial preference approach in housing that the Rothsteins champion is legally untenable and politically disastrous, and also fails to recognize the rising salience of class in American housing.
As a legal matter, a conservative supermajority on the U.S. Supreme Court is increasingly skeptical of the type of racial preference programs the Rothsteins advance in the housing arena. The authors are fully aware of this and have a jarring response: Progressives should “dare to defy” the Supreme Court. When the Court rejects racial preference policies in housing, they say, policy makers should simply “ignore the Court’s arrogant and unsupportable views.” Likewise, when the Court struck down race-based school integration programs in 2007, the authors argue, “school boards and superintendents should have replied that the case was ‘of no authority’ and gone ahead with their race-conscious remedies.”
The Rothsteins say their position of defiance is “controversial.” I would call it breathtaking and lawless. One of the hallmarks of a liberal democracy is that the rule of law must be respected. The way to challenge bad Court decisions is to win the argument—either by advancing new legal theories or by electing presidents and senators who will, over time, appoint and confirm wiser justices. In cases where the Court is interpreting a statute rather than the Constitution, Congress can correct ill-considered rulings with new legislation. Simply ignoring the law of the land is ineffective and makes it easier for right-wing ideologues to try to do the same the next time they disagree with a decision.
The second fundamental problem with the authors’ approach is that it is deeply unpopular and will invite a backlash. Black people represent only 14 percent of the population; they need allies to bring about political change. On one level, the authors recognize this. They call for the creation of “biracial” committees of Black people and enlightened whites to push for integration.
But that approach is unlikely to succeed in advancing racial preferences in housing. To begin with, the “biracial” language is anachronistic in a society where the Hispanic population is larger than the Black population, and Asian Americans are the fastest-
growing group. (Even Representative Maxine Waters, who has been properly criticized by the Monthly for suggesting that only disadvantaged people of color should receive down payment assistance, offers a broader tent than the Rothsteins’ plan to provide such support only to Black people.) More generally, a wide body of scholarship, including experimental research in 2021, has found that a racial framing of policies makes them less popular, not more.
Of course, some will say the political unpopularity of racial justice framing is simply more proof of American racism, but there is another possible explanation. Maybe working-class Hispanic, Asian, Black, and white people are more keenly attuned than upper-middle-class whites to the idea that a focus on racial preferences ignores the injuries of class.
Throughout Just Action, the Rothsteins consistently assume that opposition to housing reforms is purely racial. They speak, for example, of zoning policies that “conspire to keep some areas all-white.” But the researcher Myron Orfield has found that the percentage of people living in suburbs that are more than 80 percent white has fallen to 18 percent. Walter Mondale, the late senator and vice president, and a lead champion of the Fair Housing Act, noted in 2018 that “almost 45 percent of suburban residents in the largest metropolitan areas live in racially diverse suburbs. These suburbs—the children of the Fair Housing Act—are some of the nation’s most wonderful places.”
The nature of housing inequality is changing. Since 1970, Black-white segregation has declined by 30 percent while income segregation has doubled. The Rothsteins frame the opposition to zoning reform in Woodbridge, home to highly educated white Democrats, as a failure of residents to welcome Black people. This will likely be an unconvincing argument to most residents, who surely would embrace—indeed celebrate—a Black doctor or faculty member from Yale who moves to the community. Research shows that highly educated people are less racially biased than those with less education.
Something else is going on in exclusive affluent communities. Importantly, researchers find, it’s not that people in places like Woodbridge lack bias. For highly educated people, the “targets of prejudice are different”: They dislike those who have less education. This problem cuts across racial lines. For decades, as Sheryll Cashin has noted, “Black elites” have engaged in “social distancing” from Black people from the agrarian South by “trying to live apart” from them.
If the Rothsteins’ racial preference approach is legally problematic and politically challenging, and also ignores shifting realities in America, what can be done? The successful reforms to end exclusionary single-family zoning in California and Oregon that the Rothsteins mention in passing are instructive. In Oregon, legislators built a bipartisan multiracial coalition that included urban and rural areas allied against the suburbs, and in California, the vote also broke down along class, rather than partisan, lines. Working-class people, no matter their race, don’t like being looked down on and excluded. Emphasizing the common exclusion across racial lines—through policies like an Economic Fair Housing Act, which would give the right to sue for zoning that unjustifiably discriminates by income—is much more likely to repeat the successes in California and Oregon than the Rothsteins’ racial preference approach.
Importantly, the class approach would have strong benefits for Black people. In many areas, for example, it’s not necessary to set aside spots in inclusionary zoning programs for Black people, as the Rothsteins have advocated. In Montgomery County, Maryland, for example, 72 percent of students who benefited from an income-based inclusionary zoning program were Black. And in Milwaukee, the Rothsteins say, “nearly all” the beneficiaries of an income-based housing mobility program were Black people.
Although now in vogue among some highly educated white Democrats and Black people, the racial preference approach in housing the Rothsteins champion is legally untenable and politically disastrous, and also fails to recognize the salience of class in American housing.
Overall, Just Action does an admirable job of laying out a number of promising ideas that activists can push localities, states, and the federal government to pursue in order to provide Black people with greater protection against racial discrimination and help uplift disadvantaged people of all races.
The racial preference policies the authors propose, by contrast, bring to mind the white suburbanites who post “Black Lives Matter” signs. They might make the advocates feel good, but in terms of enacting meaningful change in the real world, it is much more productive to stick to politically feasible, legally sustainable ideas that reflect the realities of 21st-century America. To address the harms that Richard Rothstein brilliantly laid out in The Color of Law, it is crucial that advocates pursue ideas that will work in practice and begin to transform the country.
