the color of law

richard rothstein

Preface

Banks discriminated with “redlining,” refusing to give mortgages to African Americans or extracting unusually severe terms from them with subprime loans.

Segregation by intentional government action is not de facto. Rather, it is what courts call de jure: segregation by law and public policy.

In 1965, Joseph Lee Jones and his wife, Barbara Jo Jones, sued the Alfred H. Mayer Company, a St. Louis developer, who refused to sell them a home solely because Mr. Jones was black. Three years later, the Supreme Court upheld the Joneses’ claim and recognized the validity of the 1866 Civil Rights Act’s declaration that housing discrimination was a residue of slave status that the Thirteenth Amendment empowered Congress to eliminate.

Yet because of an historical accident, policy makers, the public, and even civil rights advocates have failed to pay much attention to the implications of the Jones v. Mayer decision. Two months before the Supreme Court announced its ruling, Congress adopted the Fair Housing Act, which was then signed into law by President Lyndon B. Johnson. Although the 1866 law had already determined that housing discrimination was unconstitutional, it gave the government no powers of enforcement. The Fair Housing Act provided for modest enforcement, and civil rights groups have used this law, rather than the earlier statute, to challenge housing discrimination. But when they did so, we lost sight of the fact that housing discrimination did not become unlawful in 1968; it had been so since 1866. Indeed, throughout those 102 years, housing discrimination was not only unlawful but was the imposition of a badge of slavery that the Constitution mandates us to remove.

Although most African Americans have suffered under this de jure system, they cannot identify, with the specificity a court case requires, the particular point at which they were victimized. For example, many African American World War II veterans did not apply for government-guaranteed mortgages for suburban purchases because they knew that the Veterans Administration would reject them on account of their race, so applications were pointless. Those veterans then did not gain wealth from home equity appreciation as did white veterans, and their descendants could then not inherit that wealth as did white veterans’ descendants. With less inherited wealth, African Americans today are generally less able than their white peers to afford to attend good colleges. If one of those African American descendants now learned that the reason his or her grandparents were forced to rent apartments in overcrowded urban areas was that the federal government unconstitutionally and unlawfully prohibited banks from lending to African Americans, the grandchild would not have the standing to file a lawsuit; nor would he or she be able to name a particular party from whom damages could be recovered.

A similar study of Cleveland, A Ghetto Takes Shape: Black Cleveland, 1870–1930, was published by Kenneth L. Kusmer in 1978. One of the more important books on American race relations of the past decade or more is Michelle Alexander’s The New Jim Crow, published in 2010. She uses the term ghetto frequently.

If San Francisco, then Everywhere?

For veterans, government approval also usually meant that no down payment was required. As in Rollingwood ten years earlier, one of the federal government’s specifications for mortgages insured in Milpitas was an openly stated prohibition on sales to African Americans.

Because Milpitas had no apartments, and houses in the area were off-limits to black workers—though their incomes and economic circumstances were like those of whites on the assembly line—African Americans at Ford had to choose between giving up their good industrial jobs, moving to apartments in a segregated neighborhood of San Jose, or enduring lengthy commutes between North Richmond and Milpitas. Frank Stevenson bought a van, recruited eight others to share the costs, and made the drive daily for the next twenty years until he retired. The trip took more than an hour each way.

Calling itself the Peninsula Housing Association of Palo Alto, the co-op purchased a 260-acre ranch adjacent to the Stanford campus and planned to build 400 houses as well as shared recreational facilities, a shopping area, a gas station, and a restaurant on commonly owned land. But banks would not finance construction costs nor issue mortgages to the co-op or to its members without government approval, and the FHA would not insure loans to a cooperative that included African American members.

Almost immediately Floyd Lowe, president of the California Real Estate Association, set up an office in East Palo Alto to panic white families into listing their homes for sale, a practice known as blockbusting. He and other agents warned that a “Negro invasion” was imminent and that it would result in collapsing property values

Public Housing, Black Ghettos

Most Americans have an image of public housing: groups of high-rise towers with few amenities like playgrounds or parks, packed next to one another in central city neighborhoods, plagued by crime and drugs, and filled with black (or Hispanic) mothers and their children

At that time public housing was mostly for working- and lower-middle-class white families. It was not heavily subsidized, and tenants paid the full cost of operations with their rent.

Public housing’s original purpose was to give shelter not to those too poor to afford it but to those who could afford decent housing but couldn’t find it because none was available.

New Deal housing efforts were initially created as a project of the Public Works Administration (PWA), established in 1933 shortly after Roosevelt took office. The PWA’s goal was to alleviate a national housing shortage while creating jobs in construction. Secretary of the Interior Harold Ickes, who directed the effort, had been president of the Chicago branch of the National Association for the Advancement of Colored People (NAACP) in the 1920s and was one of the administration’s few liberals on racial matters.

Ickes established a “neighborhood composition rule”: federal housing projects should reflect the previous racial composition of their neighborhoods. Projects in white areas could house only white tenants, those in African American areas could house only African American tenants, and only projects in already-integrated neighborhoods could house both whites and blacks.

In New York City, for example, from World War II to 1955, the housing authority constructed twenty large unsubsidized projects for middle-class families, all of whom paid rent that covered the housing cost. Many projects were attractive low-rise (six-story) developments, with trees, grassy areas, and park benches. In addition to giving priority to veterans, the authority maintained a list of twenty-one disqualifying factors for prospective tenants, including irregular employment history, single-parent family or an out-of-wedlock birth, criminal record, narcotic addiction, mental illness, poorly behaved children, poor housekeeping habits, and lack of sufficient furniture.

In 1934, the city of St. Louis proposed to raze the DeSoto-Carr area, a tenement neighborhood on the near north side whose population was split nearly evenly between whites and African Americans. For the cleared site, the city proposed a whites-only low-rise project. When the federal government objected to the city’s failure to accommodate African Americans, St. Louis agreed to a blacks-only project as well. In the end, St. Louis built a segregated development for African Americans in the DeSoto-Carr area, while it demolished another previously integrated neighborhood south of downtown to build a separate project for whites

In Cleveland, for example, the Central neighborhood had been a packed but racially mixed tenement community, housing African Americans along with Italian and Eastern European immigrants. Langston Hughes, the African American poet, playwright, and novelist, recounts in his autobiography that when he attended Central High School in the late 1910s, he dated a Jewish girl and his best friend was Polish. Over the next fifteen years, white families began to leave the Central neighborhood, and African Americans arrived. Yet many whites remained.

Despite the neighborhood’s biracial history, the PWA constructed two segregated projects, one for African Americans (the Outhwaite Homes) and one for whites (the Cedar-Central apartments). Although there previously had been ethnic and racial clusters in the neighborhood, the PWA solidified its racial segregation. The PWA also built a third Cleveland project, Lakeview Terrace, developed, as its name suggests, in a more scenic location; it was exclusively for whites. Like many other PWA projects for white families—but rarely like those for African Americans—Lakeview Terrace included a community center, playgrounds, and plentiful green space, and it was decorated with murals

Whether such segregation was in anyone’s best interests is doubtful. True, without the public housing, tens of thousands of African Americans would have had to remain in tenements that were out of compliance with the most minimal municipal building and health codes. But with the segregated projects, African Americans became more removed from mainstream society than ever, packed into high-rise ghettos where community life was impossible, where access to jobs and social services was more difficult, and where supervision of adolescents and even a semblance of community policing was impractical.

The NAACP, for one, was unwilling to sacrifice integration for more housing and supported the 1949 integration amendment, despite its cynical sponsorship. So did a few congressional radicals, led by Vito Marcantonio of New York, who argued on the House floor that “you have no right to use housing against civil rights. . . . Housing is advanced in the interest of the general welfare and in the interest of strength[en]ing democracy. When you separate civil rights from housing you weaken that general welfare.”

FROM THE beginning, the real estate industry bitterly fought public housing of any kind and had support from Republicans in Congress. Industry lobbyists insisted that socialism in housing was a threat to private enterprise, a difficult argument to make when, from the 1930s to the end of World War II, private enterprise had been unwilling or unable to build dwellings affordable for working- and middle-class families. But once the housing shortage eased, the real estate lobby was successful in restricting public housing to subsidized projects for the poorest families only. New federal and local regulations set forth strict upper-income limits for families in public housing. Beginning in about 1950, many middle-class families, white and black, were forced out under these new rules, although many would have preferred to stay in the low-rise, scatter-site, and well-maintained projects that mostly characterized pre-1949 public dwellings