Government Policies That Created Our Segregated Cities, and What Can Be Done About It
By Anne RichardsonNovember 21, 2017
The Color of Law by Richard Rothstein
It is the rare book that evokes as much anger and outrage as this one. Here is a partial list of fun facts that Rothstein bets you don’t already know:
(1) During the first half of the 20th century, FDR’s New Deal constructed public housing with federal funds from which African Americans were excluded, even when they worked at the same plants for which the housing was being constructed. In some instances, these programs demolished integrated neighborhoods and imposed racial segregation.
(2) Even after courts held that zoning ordinances forbidding the sale of houses to African Americans violated the Fourteenth Amendment’s right to equal protection, states and cities continued to enforce such laws in outright rebellion well into the 1970s on grounds that they were a legitimate measure to avoid “damage to home values.”
(3) When the federal government sought to fight communism by encouraging home ownership, all the incentives created to allow people of modest means to buy houses were explicitly denied to African Americans. For example, the Federal Housing Administration’s (FHA) insurance of bank mortgages that covered 80 percent of purchase prices expressly imposed a whites-only requirement on the ground that properties were too risky if they were in racially mixed neighborhoods, and moreover refused to provide insurance even in predominantly Black neighborhoods. Since middle-income African-American families could not get FHA insurance, for decades they simply did not have access to even those small number of houses they could otherwise afford that were built in neighborhoods where sellers would sell to them.
(4) Racially restrictive covenants written into property deeds were enforced and even promoted by the federal and local governments on the ground they were private agreements. The FHA and the Veterans Administration recommended and at times required such provisions in order to extend insurance to a purchase. Even after such requirements were finally deemed unconstitutional in 1948, courts continued to permit lawsuits against white owners who sold homes to African-American buyers for decades on the ground that their property values would decline.
The consequences of these actions led to yet more mistreatment. Because of the FHA policy not to provide mortgage insurance to African Americans, and the failure of federal or state regulators to crack down on racist practices, African-American homeowners had to make “contract sales” in which ownership would transfer after 15 or 20 years, but only if not a single payment was ever late, and during that period, no equity accumulated. If even a single payment was late, the seller would evict the would-be owner and take back the property.
Blockbusting — the practice by which speculators buy properties in borderline black-white areas, sell to African Americans at above-market prices, and then persuade white families residing in those areas that their neighborhoods are turning into African-American slums in order to purchase their homes at reduced prices — was rampant, and unrestrained by government regulators. There is much more here, but you get the point.
So what do we do with all this information? Is it history, or is it a call to action?
Rothstein begins his book by quoting the US Supreme Court’s holdings in a number of school desegregation cases that resulted in segregated neighborhoods. These opinions held the resulting segregation of schools was not within the court’s obligation to correct, because it had been the result of private action:
Where resegregation is a product not of state action but of private choices, it does not have constitutional implications. It is beyond the authority and beyond the practical ability of the federal courts to try to counteract these kinds of continuous and massive demographic shifts. 
Rothstein is trying to repair this disconnect. By detailing the history of segregating actions at the federal, state, and local levels, he argues that the resulting housing divide between black and white does have “constitutional implications.”
He does not make the case that lawsuits are the answer, noting undoubtedly correctly that many victims of these policies will not be able to draw a direct causal link from the policies of the early to mid-20th century to their own financial situations in the present day. Yet he may be too dismissive of the power of these findings to affect future court decisions. Proof of prior de jure discrimination can and should be used to show a need for government action in the appropriate housing discrimination case.  His section on remedies would have benefited from a section on possible legal strategies.
Instead Rothstein focuses on new government policies, some more realistic than others, that he argues can and should be implemented at the federal, state, and local levels. These remedies range from having the federal government buy up homes in Levittown at today’s market rates and selling them to African-American families at 1950s rates, to localities passing inclusionary zoning ordinances that require developers in even the most affluent communities to set aside a percentage of units for moderate-income families, and for their local housing authorities to increase units for the lowest-income families in all neighborhoods.
Other recommendations include forbidding landlords from refusing to rent to Section 8 voucher holders, increasing the funding for Section 8 so that the waiting list is no longer six times greater than the number of available vouchers at any given time, and a wide range of incentives for building low-income housing in mixed-income neighborhoods and expanding to renters some of the tax benefits currently available to home-owners.
Rothstein makes the persuasive case that in order to effectively call upon our government officials to take more aggressive steps to right their previous wrongs, we have to acknowledge our past. We cannot create housing policy as if we were writing on a blank slate; the massive government-sponsored discrimination of the past must be acknowledged. Rothstein’s book calls on all of us as Americans to rewrite our history books, create a public discourse and awareness of how much segregation was in fact caused by the State, and, finally, to bring together policymakers and government officials to decide what the government must do to remedy its past wrongs. Affirmative action, after all, is the appropriate remedy for state-sponsored discrimination of the past, which Rothstein's book documents in appalling detail.
 Freeman v. Pitts, 503 U.S. 467, 495 (1992) (Kennedy, J.).
 See, e.g., Jaimes v. Lucas Metro. Housing Auth., 833 F.2d 1203, 1207 (6th Cir. 1987) ("Remedying the manifestations of past discrimination has long been recognized as a compelling government interest. In such cases it may be necessary to take race into account in fashioning a remedy.")
Anne Richardson is a civil rights attorney in Los Angeles. She is currently director of the Consumer Law Project at Public Counsel (www.publiccounsel.org).
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