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

The primary argument in The Color of Law is that de jure segregation—segregation implemented by government policy or law—is more significant than de facto segregation, which results from private activity or individual choices. De facto segregation does not have the sanction of the law, while de jure segregation uses the law to mandate the separation of races. It has origins in slave codes before the Civil War and Jim Crow laws following Reconstruction. In the 1896 US Supreme Court Ruling Plessy v. Ferguson, the court upheld the constitutionality of segregation, mandating that “separate but equal” facilities such as schools be provided. This was rarely implemented, and African American neighborhoods were chronically underfunded. The 1917 Supreme Court ruling Buchanan v. Warley declared residential segregation ordinances unconstitutional. However, it wasn’t until the 1948 ruling on Shelley v. Kraemer that the Supreme Court ruled restrictive covenants, which prevented African Americans from moving into White neighborhoods, were unenforceable in a court of law. De jure segregation was officially banned by the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968. Despite these legislative efforts, the historical legacy of de jure segregation continues to perpetuate de facto segregation in the present.

Rothstein argues that de jure segregation played a much larger role than is commonly acknowledged. In 1973 the Supreme Court ruling in Milliken v. Bradley noted that the predominately White suburbs of Detroit could not be included in Detroit’s plan to desegregate schools as there was no evidence that proved segregation was caused by government activity. Justice Potter Stewart wrote that segregated neighborhoods result from “unknown and perhaps unknowable factors such as in-migration, birth rates, economic changes, or cumulative acts of private racial fears” (124). Stewart further concluded that

‘The Constitution simply does not allow federal courts to attempt to change that situation unless and until it is shown that the State, or its political subdivisions, have contributed to cause the situation to exist. No record has been made in this case showing that the racial composition of the Detroit school population or that residential patterns within Detroit and in the surrounding areas were in any significant measure caused by governmental activity’ (124).

These “unknown and unknowable factors” describe de facto segregation. Rothstein systematically dismantles this argument to show how policymakers at all levels of government engineered segregation. To build his argument, he cites several government institutions at local, state, and federal levels that implemented policies that segregated by race, including the promotion of zoning, mortgage guarantees, and segregated public housing. He also highlights places where the courts, the police, or regulators allowed de facto segregation to persist. Because these institutions did not stop blatantly discriminatory practices, Rothstein argues that governments supported them implicitly. Further, when the government facilitated low-interest mortgages through the Federal Housing Administration (FHA) and the Veterans Administration, it created an advantage for White working- and middle-class people. African Americans were routinely denied these subsidized mortgages and did not build equity in the same way their White counterparts did. De jure segregation was common in both the South and the North. This had long-term impacts like disparate wealth accumulation that resulted in inequality. In perpetuating de jure segregation, the government failed to meet the commitments established in the Thirteenth, Fourteenth, and Fifteenth Amendments, which declared limits to African Americans’ freedom unconstitutional. Rothstein argues that because governments implemented and enforced segregation, it is the responsibility of governments to remedy it.The primary argument in The Color of Law is that de jure segregation—segregation implemented by government policy or law—is more significant than de facto segregation, which results from private activity or individual choices. De facto segregation does not have the sanction of the law, while de jure segregation uses the law to mandate the separation of races. It has origins in slave codes before the Civil War and Jim Crow laws following Reconstruction. In the 1896 US Supreme Court Ruling Plessy v. Ferguson, the court upheld the constitutionality of segregation, mandating that “separate but equal” facilities such as schools be provided. This was rarely implemented, and African American neighborhoods were chronically underfunded. The 1917 Supreme Court ruling Buchanan v. Warley declared residential segregation ordinances unconstitutional. However, it wasn’t until the 1948 ruling on Shelley v. Kraemer that the Supreme Court ruled restrictive covenants, which prevented African Americans from moving into White neighborhoods, were unenforceable in a court of law. De jure segregation was officially banned by the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968. Despite these legislative efforts, the historical legacy of de jure segregation continues to perpetuate de facto segregation in the present.

Rothstein argues that de jure segregation played a much larger role than is commonly acknowledged. In 1973 the Supreme Court ruling in Milliken v. Bradley noted that the predominately White suburbs of Detroit could not be included in Detroit’s plan to desegregate schools as there was no evidence that proved segregation was caused by government activity. Justice Potter Stewart wrote that segregated neighborhoods result from “unknown and perhaps unknowable factors such as in-migration, birth rates, economic changes, or cumulative acts of private racial fears” (124). Stewart further concluded that

‘The Constitution simply does not allow federal courts to attempt to change that situation unless and until it is shown that the State, or its political subdivisions, have contributed to cause the situation to exist. No record has been made in this case showing that the racial composition of the Detroit school population or that residential patterns within Detroit and in the surrounding areas were in any significant measure caused by governmental activity’ (124).

These “unknown and unknowable factors” describe de facto segregation. Rothstein systematically dismantles this argument to show how policymakers at all levels of government engineered segregation. To build his argument, he cites several government institutions at local, state, and federal levels that implemented policies that segregated by race, including the promotion of zoning, mortgage guarantees, and segregated public housing. He also highlights places where the courts, the police, or regulators allowed de facto segregation to persist. Because these institutions did not stop blatantly discriminatory practices, Rothstein argues that governments supported them implicitly. Further, when the government facilitated low-interest mortgages through the Federal Housing Administration (FHA) and the Veterans Administration, it created an advantage for White working- and middle-class people. African Americans were routinely denied these subsidized mortgages and did not build equity in the same way their White counterparts did. De jure segregation was common in both the South and the North. This had long-term impacts like disparate wealth accumulation that resulted in inequality. In perpetuating de jure segregation, the government failed to meet the commitments established in the Thirteenth, Fourteenth, and Fifteenth Amendments, which declared limits to African Americans’ freedom unconstitutional. Rothstein argues that because governments implemented and enforced segregation, it is the responsibility of governments to remedy it.