Too Short for a Blog Post, Too Long for a Tweet 163

Here are a few excerpts from a book I recently read, "The Color of Law: A Forgotten History of How Our Government Segregated America," by Richard Rothstein:



De facto segregation, we tell ourselves, has various causes. When African Americans moved into a neighborhood like Ferguson, a few racially prejudiced white families decided to leave, and then as the number of black families grew, the neighborhood deteriorated, and “white flight” followed. Real estate agents steered whites away from black neighborhoods, and blacks away from white ones. Banks discriminated with “redlining,” refusing to give mortgages to African Americans or extracting unusually severe terms from them with subprime loans. African Americans haven’t generally gotten the educations that would enable them to earn sufficient incomes to live in white suburbs, and, as a result, many remain concentrated in urban neighborhoods. Besides, black families prefer to live with one another. 

All this has some truth, but it remains a small part of the truth, submerged by a far more important one: until the last quarter of the twentieth century, racially explicit policies of federal, state, and local governments defined where whites and African Americans should live. Today’s residential segregation in the North, South, Midwest, and West is not the unintended consequence of individual choices and of otherwise well-meaning law or regulation but of unhidden public policy that explicitly segregated every metropolitan area in the United States. The policy was so systematic and forceful that its effects endure to the present time. Without our government’s purposeful imposition of racial segregation, the other causes—private prejudice, white flight, real estate steering, bank redlining, income differences, and self-segregation—still would have existed but with far less opportunity for expression. Segregation by intentional government action is not de facto. Rather, it is what courts call de jure: segregation by law and public policy.

Yet even if we came to a nationally shared recognition that government policy has created an unconstitutional, de jure, system of residential segregation, it does not follow that litigation can remedy this situation. 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. There is generally no judicial remedy for a policy that the Supreme Court wrongheadedly approved. But this does not mean that there is no constitutionally required remedy for such violations. It is up to the people, through our elected representatives, to enforce our Constitution by implementing the remedy.

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.

When the FHA rejected proposals for projects like De Porres that might house African Americans or otherwise threaten future integration, the agency didn’t mask the racial bases of its decisions. In 1940, for example, a Detroit builder was denied FHA insurance for a project that was near an African American neighborhood. He then constructed a half-mile concrete wall, six feet high and a foot thick, separating the two neighborhoods, and the FHA then approved the loan.

By the late 1950s, white homeowners wanting to leave that development realized that it would be to their benefit to sell to African Americans who, because they were desperate for housing, would pay more than whites. So it happened that in 1957 an African American veteran, Bill Myers, and his wife Daisy, found a Levittown homeowner willing to sell. 

Like many Levittown residents, Myers had served in World War II. He was discharged as a staff sergeant and held a steady job as a lab technician in the engineering department of a factory in nearby Trenton, New Jersey. Daisy Myers was a college graduate, and Bill Myers was taking courses toward a degree in electrical engineering. When no bank would provide a mortgage because the Myers family was black, a New York City philanthropist offered to give them a private mortgage, and Bill and Daisy Myers, with their three children, occupied their new home. 

A few days later, the U.S. Post Office mail carrier, a federal government employee performing his official duties, noticed that he was delivering mail to an African American family. As he made his rounds, he shouted, “Ni**ers have moved into Levittown!” As many as 600 white demonstrators assembled in front of the house and pelted the family and its house with rocks. Some rented a unit next door to the Myerses and set up a clubhouse from which the Confederate flag flew and music blared all night. Police arrived but were ineffective. When Mr. Myers requested around-the-clock protection, the police chief told him that the department couldn’t afford it. The town commissioners accused the state police of “meddling” because troopers were dispatched when the police failed to end the harassment. It was a needless worry; the state troopers also declined to perform their duty. 

For two months law enforcement stood by as rocks were thrown, crosses were burned, the Ku Klux Klan symbol was painted on the wall of the clubhouse next door, and the home of a family that had supported the Myerses was vandalized. Some policemen, assigned to protect the African American family, stood with the mob, joking and encouraging its participants. One sergeant was demoted to patrolman because he objected to orders he had been given not to interfere with the rioters.

When we become Americans, we accept not only citizenship’s privileges that we did not earn but also its responsibilities to correct wrongs that we did not commit. It was our government that segregated American neighborhoods, whether we or our ancestors bore witness to it, and it is our government that now must craft remedies.

Neither the costs nor the benefits of desegregation can be apportioned fairly. African Americans benefiting from an affirmative action boost may not be those who most need it because of segregation. White students who are rejected by an elite university due to affirmative action, but who otherwise would have been admitted, may not be precisely those who owe their qualifications to the legacy of privilege that segregation bequeathed. Our legal system expects every compensatory transfer to be precisely calibrated to the responsibility of the giver and the victimization of the receiver. De jure segregation is too massive a historical wrong to satisfy this principle. Remedying de jure segregation will be neither win-win nor neat. We’ve made a constitutional mess that will not be easily undone. Certainly, integration will benefit all of us, white and African American. But costs will also be involved, and we should accept that those costs are part of our constitutional obligation. Otherwise, integration will be unlikely to succeed.