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

Summary: One of the enduring realities of racism in the United States is the persistence of housing segregation. Many believe that housing segregation today is largely a result of personal preference. But the historic role of government in creating and maintaining segregation has been largely ignored.

In the United States homeownership is one of the most significant methods of wealth creation and generational wealth transfer. Because of that, differences in rates of home ownership plays a significant role in the difference in personal wealth between racial groups and the transfer of that wealth from one generation to the next.

Discussion of race in the US often will eventually come to a question similar to, “˜slavery ended over 150 years ago and the Civil Rights era was 50 years ago, how can the aggregate differences between economic and social realities continue to be persistent.’ The Color of Law attempts to tell part of the story about how persistence of economic and social realities is at least partially dependent upon historic (and sometimes recent) role of government.

Color of Law is not an anti or pro-government book, but an attempt at an honest accounting of the role of government. Throughout the book there is a continual question of whether particular actions were the responsibility of individual actors that happened to have government positions or if the actions were part of an intentional or unintentional action of a branch or level of government as a whole.

Richard Rothstein is writing to persuade, first of his reading of the 14th amendment, and then to make a legal case for governmental responsibility. Rothstein is a legal scholar and was a senior fellow at the NAACP Legal Defense Fund. His prior books were mostly about educational equity, but educational and housing segregation have significant overlap in history and law.

My main complaint about Color of Law is that it feels repetitive, but that is part of the legal method of making the argument. To prove that government has been at least partially responsible for creating and maintaining segregation, Rothstein has to show that there was intentionality in a number of different types of segregation in different geographies and over different time periods.

But I think what is most persuasive about Color of Law is the sheer number of areas that government encouraged segregation. Many people have heard the story of redlining before, I am not going to detail that here. And many know that FHA loans were for the most part not available for minority families. But what I did not realize is that FHA was not only a lender to the consumer, but the most significant lender to producers of suburban housing. And one of the federally required components of receiving low-interest production loans was inserting racially restrictive covenants into the initial design of both the communities and individual homes. This means that not only were African-Americans prevented from getting low-cost loans through the FHA and GI Bill, but the homes that they  could purchase without those low-cost government backed loans were more expensive to produce because the builders were unable to access low-cost production loans. Even segregated communities designed for minorities were rarely given low cost production loans, which created housing shortages for minorities, driving up rents or home costs for minorities because of shortages.

When restrictive covenants were ruled illegal, HUD and other government actors started suggesting or requiring alternative methods of segregation like exclusionary zoning, and home owners associations, until one by one many of these methods were also ruled illegal as a means of perpetuating segregation.

Part of the argument Rothstein is making (and by the time I finished I realized Rothstein was writing this as an extended Court Brief) is that the 14th amendment, apart from the Fair Housing Act or others modern laws required all levels of government to desegregated housing and to prevent many of the rules and regulations that created, perpetuated and entrenched housing segregation. (The relevant section of the 14th says, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”) What is particularly galling about reading Color of Law is that there were areas of the country where desegregated housing was more common and some of these rules created segregation where it did not previously occur. Which by definition was a violation of the 14th amendment.

Rothstein goes beyond specific housing law to the areas around housing that make things worse. The expansion of the suburban job market is a somewhat distant but interesting example. If you can’t get housing close to your work, you have higher costs for transportation and a higher likelihood of losing your job because of absences or lateness created by the distance. And if there is no where that you can rent or buy a home near your suburban factory job based on government imposed segregation requirements then those requirements not only impact your home choices, but your income. Unions were often segregated as well and it was not until the late 1960s that the federal government through contracting rules effectively banned segregated unions.

The IRS, tax law, and compliance regulations also either overtly encouraged segregation or did not adequately address issues that enforced segregation. Security and Exchange Commission, banking, and insurance regulation and similar government agencies that were legally obligated to regulate the financial markets have not adequately addressed, even in the most recent housing bubble, the targeting of minorities for discriminatory lending and insurance by regulated institutions. There is more than adequate research to show that minorities that have equal financial assets and income are disproportionately given higher rate loans or only shown segregated housing, etc. In a similar way, Color of Law walks through tax law and government programs like Section 8 that while either written to reduce segregation, or not directly concerning housing segregation, actually make segregation worse.

All of Rothstein’s previous books have been about education policy. So the section on the relationship of housing segregation to education segregation is particularly good. Many educational decisions, from placement of school buildings to attendance boundaries continue today to encourage segregation. My wife’s school is about 2 miles from another elementary school in the same district. My wife’s elementary school has 87 apartment complexes and hotels and almost no single family houses. Her school is approximately 90% minority and mostly low-income. The next closes school to the east, less than 2 miles away, is predominately white, with few low-income students and mostly single family houses. Issues like school boundaries are persistent and the research shows that segregated schools harm not only minority students, but also white students that have less access to a diverse student body.

Local government also has played a significant role in housing segregation. One method is for local police to refuse to protect minority residents and enforce housing laws. In a number of cases, mob violence has pushed out  minority families attempting to desegregate housing. In far too many cases, local police (and in one case cited in the book a local postal carrier) were the ones that organized the opposition to the new residents. Also mentioned earlier, national encouragement of the use of zoning to particularly manage housing segregation is a persistent problem. My current county has a law on the books that makes it illegal for more than two unrelated people to live in the same housing unit (regardless of size or number of bedrooms in the home). Rules similar to that, place undue restrictions on low-income housing and they are frequently unequally enforced.

Rothstein is trying to persuade that not only were 20th century government actions illegal, but that as a society we owe a debt to minority citizens that were harmed by these actions. For instance one of the early, and famous, suburban developments was Levittown. Those homes were sold initially for about $75,000 in today’s dollars. But today are worth about $350,000. This has created about $275,000 in wealth in three generations since they were initially built. But local African-American segregated neighborhood that was mentioned in the book only had about a $15,000 increase in value in a similar time. This doesn’t include the higher costs to own because of the higher cost loans to the African-American families.

I could go on and on giving examples of the ways that government at all levels have encouraged segregated housing and discouraged movements toward integration, but that is what the book is for. There is one last note that I want to mention. At the end when Rothstein is discussing potential remedies, he notes that when surveyed, almost every one wants to live in a desegregated neighborhood. The problem is that the concept of what desegregated means is radically different between Whites and many minorities. Minorities in general classify a neighborhood as integrated when there are at least 30 to 50 percent minorities, preferably with no one group more than 50 percent. Whites classify a neighborhood as integrated at about 10 percent minority.

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