I spent a long plane ride across the country reading Richard Rothstein’s “Color of Law,” at the recommendation of two FaceBook friends and a guy who just happened to overhear a conversation at Cville Coffee. It is subtitled “A Forgotten History of How Our Government Segregated America.”
Its starting point is Justice Roberts’ opinion in Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007). This is an odd case procedurally; there was no clear majority – 4 votes for reversal, plus Justice Kennedy concurring in the judgment, which means that he didn’t agree with the logic of the others, but agreed that the case should be reversed. According to Kennedy, “The cases here were argued upon the assumption, and come to us on the premise, that the discrimination in question did not result from de jure actions.” Kennedy’s concurrence suggests that if the record had shown de jure discriminatory governmental action, he might have joined the 4 dissenters, who wanted to uphold the District Court order.
The Seattle school districts had voluntarily adopted student assignment plans that relied on race to assign kids to schools, based on the fact that they had schools that were not well-integrated. They were trying to get each high school to be close to the district-wide balance of 40% white, 60% non-white; the school district estimated that without the integration plan, the nonwhite populations of the 2000–2001 ninth grade class would range from 70% to 30.5%, with only one school close to the 60% that was the goal. Using the integration plan, the nonwhite populations of the same schools would range from 59.5% to 40.6%. The District Court had upheld the plan, saying that the City had a compelling interest in remedying past discrimination, this plan did so, and that permitted the use of race as a basis for the decision.
Chief Justice Roberts’s opinion held that because the Seattle schools had never operated as legally segregated schools and had never been subject to court-ordered desegregation, Seattle could not use race in its decision-making. If there was no governmental action to force segregation – no de jure segregation – government could not use race-based decision-making to “correct” the situation. Chief Justice Roberts said that “racial balancing,” without any sense of reversing government-ordered segregation, is not a “compelling interest” that permits the court to approve the use of race-based criteria. And the guts of the opinion that caused Rothstein to write this book comes where Roberts writes that “The distinction between segregation by state action and racial imbalance caused by other factors has been central to our jurisprudence in this area for generations,” quoting, among other decisions, Freeman v. Pitts, 503 U.S. 467, 495–496 (2004) – “Where resegregation is a product not of state action but of private choices, it does not have constitutional implications”. In other words, de facto segregation, the product of individual private choices, can’t be remedied by the government using race-conscious remedies.
The premise of Rothstein’s research was to prove that even in the North, where there was never an intentionally segregated school system, the racial segregation in housing patterns was very much a product of racial discrimination by governmental action.
The most pervasive example of racial discrimination in housing by governmental action was the action of the Federal Housing Administration, created in 1934 to get government into the business of insuring or guaranteeing home loans. From the very beginning of the FHA, the essential logic was this – that when black families moved into a neighborhood, there was trouble, and property values went down; if property values went down, the security for the federally-insured loans would go down; if there was then a foreclosure, the federal government would lose money; so there could be no FHA guarantees except to developers building and to borrowers buying in neighborhoods where the deeds had a restriction that prohibited occupancy by anyone who was not Caucasian. And it was not enough that the individual buyer had such a restriction in his deed – the neighboring homes had to have the same restriction, because my home might lose value if your home were sold to an African-American couple. If you were a homebuyer who did NOT have such a clause in your deed, and if any of your neighbors did not have such a clause, you could not get a government guarantee for your loan, and ownership became very much more expensive and harder to arrange. And so neighborhoods very quickly became segregated as a matter of federal government action – de jure segregation. In Shelley v. Kraemer, 334 U.S. 1 (1948), the Supreme Court held that such covenants could not be enforced in court, but the FHA (and the VA, which used the same forms and policies) didn’t change until John Kennedy signed an Executive Order in 1962 barring the practice.
In essence, Rothstein has made the case that all housing decisions made up until 1962 were made pursuant to this discriminatory practice, and that courts need to recognize this fact in recognizing that even though there may not have been any explicitly racial decision-making since 1962, the cake was baked long ago.
I want to go back and re-read the book now that I have access to the Supreme Court Reports (can’t do that on a plane), but he connects the dots in a powerful and persuasive way.
I would love to see some effort by local history buffs to localize Rothstein’s research – call it “The Color of Law in Charlottesville.”
