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

“The USHA manual warned that it was undesirable to have projects for white families ‘in areas now occupied by Negroes’ and added: ‘The aim of the [local housing] authority should be the preservation rather than the disruption of community social structures which best fit the desires of the groups concerned.’”

Rothstein cites government manuals, speeches by politicians and policymakers, and public policy documents to demonstrate how entrenched racial discrimination was. In this quote he cites the United States Housing Authority’s manual as evidence that the organization endorsed segregation.

“We like to think of American history as a continuous march of progress toward greater freedom, greater equality, and greater justice. But sometimes we move backward, dramatically so. Residential integration declined steadily from 1880 to the mid-twentieth century, and it has mostly stalled since then.” 

Rothstein highlights the need to fully understand our history. There is often an unquestioned belief that things become more just and equitable over time. While the period of Reconstruction saw considerable gains for African Americans, between 1880 and the mid-20th century, these gains were systematically rolled back by the passing of Jim Crow laws. A stronger awareness of history reveals that things do not improve if people do not demand change and vote accordingly.

“As the Jim Crow atmosphere intensified in the South, fear (turning to hatred) of African Americans began to spread beyond that region. Throughout the country, Whites came to assume black perversity and inferiority.” 

Rothstein challenges several widespread assumptions about segregation. One of the major narratives is that segregation was a Southern problem. Rothstein shows that while Jim Crow laws originated in the Southern states, racial housing segregation was enforced by local, state, and federal governments throughout the United States.

“My purpose, however, is not to argue courtroom standards of proof. I am interested in how we got to the systematic racial segregation we find in metropolitan areas today, and what role government played in creating these residential patterns. We can’t prove what was in council members’ hearts in Arlington Heights or anywhere else, but in too many zoning decisions the circumstantial evidence of racial motivation is persuasive. I think it can fairly be said that there would be many fewer segregated suburbs than there are today were it not for an unconstitutional desire, shared by local officials and by the national leaders who urged them on, to keep African Americans from being white families’ neighbors.” 

Rothstein defines the parameters of his argument by stating what he cannot, and is not trying to, prove. By signposting to the reader where objections to his argument will likely be raised, he anticipates and refutes these critiques.

“Zoning thus had two faces. One face, developed in part to evade a prohibition on racially explicit zoning, attempted to keep African Americans out of white neighborhoods by making it difficult for lower-income families, large numbers of whom were African Americans, to live in expensive white neighborhoods. The other attempted to protect white neighborhoods from deterioration by ensuring that few industrial or environmentally unsafe businesses could locate in them. Prohibited in this fashion, polluting industry had no option but to locate near African American residences. The first contributed to creation of exclusive white suburbs, the second to creation of urban African American slums.” 

Zoning ordinances did not simply segregate neighborhoods. They also placed African Americans in neighborhoods where they were more likely to be exposed to pollutants. For example, minorities have an 89% higher chance of living near an incinerator than the national median. Waste dumps and commercial waste treatment facilities are more likely to be found near African American residential areas. This practice is called environmental racism and has long-term health consequences for African American people.

“So in 1917 the federal Department of Labor promoted an ‘Own-Your-Own-Home’ campaign, handing out ‘We Own Our Own Home’ buttons to schoolchildren and distributing pamphlets saying that it was a ‘patriotic duty’ to cease renting and to build a single-family unit. The department printed more than two million posters to be hung in factories and other businesses and published newspaper advertisements throughout the country promoting single-family ownership—each one had an image of a white couple or family.” 

To refute arguments for de facto segregation, Rothstein focuses on the government’s promotion of homeownership. The use of only White models in advertisements that promoted the program signaled to the public that homeownership was linked to Whiteness. This is an example of an indirect way that governments reinforce racial discrimination and contribute to shaping and reinforcing racist attitudes.

“Blockbusters’ tactics included hiring African American women to push carriages with their babies through white neighborhoods, hiring African American men to drive cars with radios blasting through white neighborhoods, paying African American men to accompany agents knocking on doors to see if homes were for sale, or making random telephone calls to residents of white neighborhoods and asking to speak to someone with a stereotypically African American name like ‘Johnnie Mae.’” 

Municipalities, states, and the federal government came up with creative ways to avoid adhering to laws and court rulings that struck down racial discrimination. Individuals were also creative in maintaining racial segregation. Exploitative practices like blockbusting were used by real estate brokers to fuel racial panic. In doing so, these brokers increased their own profits. Blockbusting describes the practice in which brokers convinced homeowners to sell their property at reduced rates because of fear of declining property values due to African Americans moving in. Brokers then resold the houses at higher rates to African Americans, who had limited housing options.

“The Color of Law does not argue that merely because government regulates a private business, the firm’s activities become state action and, if discriminatory, constitute de jure segregation. Such a claim would eliminate the distinction between the public and private spheres and be inimical to a free democratic society. But because of slavery’s legacy, the Constitution gives African Americans a special degree of protection. The three constitutional amendments—the Thirteenth, Fourteenth, and Fifteenth—adopted after the Civil War were specifically intended to ensure that African Americans had equal status. When government regulation is so intrusive that it blesses systematic racial exclusion, regulators violate their constitutional responsibilities and contribute to de jure segregation.” 

Rothstein’s argument moves beyond public policy and court rulings. He also documents how governments failed to regulate or punish racially discriminatory actions by nongovernmental organizations like real estate brokers, the police, and unions. In this statement, Rothstein clearly lays out his argument that governments shaped segregation.

“Taken in isolation, we can easily dismiss such devices as aberrations. But when we consider them as a whole, we can see that they were part of a national system by which state and local government supplemented federal efforts to maintain the status of African Americans as a lower caste, with housing segregation preserving the badges and incidents of slavery.” 

Rothstein draws from diverse source material, including different geographic regions and time periods. In doing so, he establishes patterns that undermine the argument that segregation is de facto or the result of unknown forces and personal prejudices. Instead, he argues that the pattern reveals how White people maintained their socioeconomic status by ensuring that African American people couldn’t make the same gains.

“Yet a single arrest is probably all that would have been required to persuade the mob to withdraw.” 

At moments, Rothstein introduces speculation. By not punishing White people who incited racial violence, the police implicitly endorsed their behavior. Policing thus becomes another form of de jure segregation. He goes on to explain, “Yet if these officers’ superiors were aware of racially discriminatory activities conducted under color of law, as they surely were, and either encouraged these activities or took inadequate steps to restrain them, then these were no longer merely rogue actions but expressed state policy that violated the Fourteenth Amendment’s guarantees of due process and equal protection” (142-43).

“I mention the ‘flap’ (the term Robert Mereday, Jr., uses in recalling the Wilson incident) because such instances were more commonplace than historians can document, and they must have had a profound effect on the awareness within the African American community of how their housing options were limited.” 

As a historian, Rothstein draws from primary source material. As he states in this quote, however, many histories and experiences are not recorded. Racial violence and prejudice was so common that it was not necessarily considered newsworthy. He implies that the anecdotes he includes in his book are examples of a widespread phenomenon.

“Did the next generation imbibe a fear of integration from their parents? How long do the memories of such events last? How long do they continue to intimidate?” 

Rothstein highlights the emotional and psychological toll of discrimination, which has tangible consequences. For example, children whose homes were attacked by racists inciting violence would be more reluctant to move into integrated neighborhoods. By asking a series of rhetorical questions, Rothstein invites the reader to consider how racial discrimination affects generations of individuals.

“In 1943 at the Marinship yard in Sausalito, where workers’ dormitories had been unintentionally integrated after recruits arrived too rapidly to be separated by race, half of the African American workers refused to pay dues to the segregated branch of the Boilermakers. The union then demanded that Marinship dismiss the delinquent African Americans, and the shipyard complied. The California attorney general and the navy admiral in charge of the area’s shipbuilding pressed the workers to abandon their protest and rejoin the segregated auxiliary, but when they refused, the officials urged Marinship, without success, to cancel the layoffs. At an FEPC hearing, the union argued that it was in full compliance with the president’s order because no African American was denied work if he paid his dues, the same requirement that applied to Whites. The FEPC rejected this claim but suspended the ruling pending a company appeal. The black Marinship workers then sued, but a federal judge concluded that the workers had no relevant rights under the federal constitution or any federal statutes.” 

African Americans were not passive victims. Throughout the book Rothstein highlights moments of individual and collective organizing, resistance, and legal challenges to segregationist doctrines, like this example of organizing efforts by African American workers in a shipyard, who protested their exclusion from unionized work. However, the courts ruled against the workers.

“White working-class families who bought those homes in 1948 have gained, over three generations, more than $200,000 in wealth.” 

A key argument in The Color of Law centers on the difference between wealth and income. Home equity is the primary source of wealth for working- and middle-class people. Government mortgage assistance allowed White people to build equity, and they passed this advantage on to their children. Because African Americans were not given this same advantage, the repercussions in terms of equity and generational wealth continue to be felt today. Because “it is rare for Americans, black or white, to have a higher rank in the national income distribution than their parents” (153), this has significant consequences for economic equality.

“African Americans have even less mobility. For those born to parents in the bottom income quintile, over half (53 percent) remain there as adults, and only a quarter (26 percent) make it to the middle quintile or higher. Considering the disadvantages that low-income African Americans have had as a result of segregation—poor access to jobs and to schools where they can excel—it’s surprising that their mobility, compared to that of other Americans, isn’t even lower.” 

The United States promotes a doctrine of liberal opportunity and meritocracy. However, the US has less social mobility than many other industrialized nations. For example, a mere 30% of children born into the lowest-earning quintile move into the middle quintile or higher. Rothstein asserts that this fact “challenges a fantasy we share: that children born into low-income families can themselves escape that status through hard work, responsibility, education, ambition, and a little luck” (182). Describing this idea as a “fantasy,” Rothstein’s argument reveals how poverty is replicated in new generations due to discriminatory government policy.

“Median white family income is now about $60,000, while median black family income is about $37,000—about 60 percent as much. You might expect that the ratio of black to white household wealth would be similar. But median white household wealth (assets minus liabilities) is about $134,000, while median black household wealth is about $11,000—less than 10 percent as much.” 

A key argument in Rothstein’s book is that home equity is the main source of wealth for middle-class Americans. The distinction between income and wealth is clearly drawn here. While African Americans have lower income than White households, the difference in assets—which builds generational wealth—between White and African American households is incredibly pronounced. This is the direct result of discriminatory mortgage and housing policies.

“Patrick Sharkey, a New York University sociologist, analyzed data on race and neighborhood conditions and reported his findings in a 2013 book, Stuck in Place. He defines a poor neighborhood as one where 20 percent of families have incomes below the poverty line. In 2016, the poverty line was about $21,000 for a family of three. In a neighborhood where 20 percent of families have incomes below poverty, many more families are likely to have incomes just above it. Notwithstanding the government’s official poverty line, most of us would consider families to be poor if they had incomes that were below twice that line, $42,000 for a family of three. The federal government itself considers schoolchildren whose family incomes are nearly twice (185 percent) the poverty line to be too poor to pay for their own lunches without a subsidy. Families like theirs are also unable to move to middle-class neighborhoods, either by saving for down payments or by renting apartments at market rates. So Sharkey is reasonable when he considers such neighborhoods to be ‘poor.’ He finds that young African Americans (from thirteen to twenty-eight years old) are now ten times as likely to live in poor neighborhoods as young Whites—66 percent of African Americans, compared to 6 percent of Whites. He finds that 67 percent of African American families hailing from the poorest quarter of neighborhoods a generation ago continue to live in such neighborhoods today. But only 40 percent of white families who lived in the poorest quarter of neighborhoods a generation ago still do so.”

Rothstein cites other scholars to bolster his argument. In this extended description of the results of a sociological study, Rothstein provides hard evidence that segregated housing had significant consequences on African American communities by hindering upward social mobility.

“The consequences of being exposed to neighborhood poverty are greater than the consequences of being poor itself. Children who grow up in poor neighborhoods have few adult role models who have been educationally and occupationally successful. Their ability to do well in school is compromised from stress that can result from exposure to violence. They have few, if any, summer job opportunities. Libraries and bookstores are less accessible. There are fewer primary care physicians. Fresh food is harder to get. Airborne pollutants are more present, leading to greater school absence from respiratory illness. The concentration of many disadvantaged children in the same classroom deprives each child of the special attention needed to be successful.”

The consequences of growing up in impoverished and underfunded neighborhoods extends beyond income gaps and economic inequality. These ramifications are also apparent in social and mental development, education, employment, health, and other spheres, limiting disadvantaged children in myriad ways.

“The false sense of superiority that segregation fosters in Whites contributes to their rejection of policies to integrate American society. The lower achievement of African American children that results from life in a segregated neighborhood adds another impediment to those children’s ability to merge into middle-class workplaces. In these ways, segregation perpetuates itself, and its continued existence makes it ever harder to reverse.” 

Earlier Rothstein described the impact of segregation on African American communities. Here he describes how it shapes the worldview of White people. Without proper education that teaches people how these racially discriminatory systems emerged, White people can develop a misguided belief in their own superiority. Throughout the text Rothstein carefully shows that African Americans have been deliberately blocked from reaching their full potential, which gave unfair advantages to White Americans.

“One of the most commonly used American history textbooks is The Americans: Reconstruction to the 21st Century. A thousand-page volume, published by Holt McDougal, a division of the publishing giant Houghton Mifflin Harcourt, it lists several well-respected professors as authors and editors. The 2012 edition has this to say about residential segregation in the North: ‘African Americans found themselves forced into segregated neighborhoods.’ That’s it. One passive voice sentence. No suggestion of who might have done the forcing or how it was implemented.” 

Education is essential to challenging White supremacist attitudes that enforce racial segregation and discrimination. In discussing the kinds of textbooks that are taught in schools, Rothstein highlights that they do not tell the whole story about the role the government played in creating de jure segregation. This has significant consequences because “remedies are inconceivable as long as citizens, whatever their political views, continue to accept the myth of de facto segregation” (198). In other words, “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” (198). However, Rothstein contends that if citizens and policymakers can overcome inadequate education to recognize the government’s role in perpetuating segregation, then we can begin the work of adopting “equally aggressive policies to desegregate” (198).

“We might contemplate a remedy like this: Considering that African Americans comprise about 15 percent of the population of the New York metropolitan area, the federal government should purchase the next 15 percent of houses that come up for sale in Levittown at today’s market rates (approximately $350,000). It should then resell the properties to qualified African Americans for $75,000, the price (in today’s dollars) that their grandparents would have paid if permitted to do so. The government should enact this program in every suburban development whose construction complied with the FHA’s discriminatory requirements. If Congress established such a program and justified it based on the history of de jure segregation, courts should uphold it as appropriate.”

Over the course of the 20th century, White working- and middle-class people gained a significant economic advantage as the direct result of government policy, while African Americans were actively blocked from achieving the same economic gains. Correcting over a century of discrimination is not a quick fix. Rothstein concedes that policymakers would never approve the proposal outlined in this quote, and it would not be upheld by the courts. However, this is the kind of policy that would be required to correct the imbalance that the government deliberately created. Because the problem was implemented and enforced by governments, it is their responsibility to remedy it.

“Montgomery County, Maryland, has a strong countywide inclusionary zoning ordinance. Like most such regulations, it requires developers in even the most affluent communities to set aside a percentage of units (in the case of Montgomery County, 12 to 15 percent) for moderate-income families. It then goes further: the public housing authority purchases a third of these set-aside units for rental to the lowest-income families. The program’s success is evidenced by the measurably higher achievement of low-income African American children who live and attend school in the county’s wealthiest suburbs. Montgomery County’s program should be widely duplicated.” 

Rothstein’s stated purpose in The Color of Law is to educate people on why this system of residential segregation developed so that people can and will implement changes. The book has a reformist or activist intention. To bolster his call to action, Rothstein highlights zoning ordinances that have successfully reduced segregation. Here he states that Montgomery County’s successful zoning ordinances should be adopted by other counties.

“What might have become of these Stevenson grandchildren if their parents had grown up and attended school in an integrated Milpitas, not in a de jure segregated Richmond? Should they now have partners with similar occupations, their household incomes are unlikely to rise above the fourth income quintile of Americans. How much farther on the socioeconomic ladder would they have been able to climb if they had grown up in a well-educated household as a result of Terry and her sisters being permitted to attend a high school that was designed for students ‘who can profit from the academic program,’ rather than one that instead offered manual training? How different might the lives of the Stevenson grandchildren have been were it not for the federal government’s unconstitutional determination to segregate their grandparents, and their parents as well? What do we, the American community, owe this family, in this and future generations, for their loss of opportunity? How might we fulfill this obligation?”

The Color of Law begins and ends with the experience of the Stevenson family in Richmond, California. While Rothstein uses a number of individual stories and moves between geographic locations, he continually returns to this one particular family to illustrate the long-term effects of de jure segregation. The book’s concluding lines suggest that White Americans and the government have an obligation to address these past wrongs.