Housing segregation scars every metropolitan map in America, and almost every institution of American life is complicit in maintaining this geography of exclusion. But in his 2017 book The Color of Law, Richard Rothstein argues that pervasive segregation cannot be chalked up entirely to the private prejudices of realtors and lenders or the personal choices of homebuyers. Rather, he writes, the racial separation of so many American neighborhoods is chiefly the responsibility of the public sector and, above all, the federal government.
The Color of Law shows that creating, and maintaining, residential segregation was at the heart of federal housing policy for decades. Rothstein assiduously documents the more explicit federal efforts, such as the racialized implementation of both public housing policy and the Federal Housing Administration’s loan programs. He finds the federal government culpable at the local level, where it turned a blind eye to exclusionary local zoning laws and violent anti-integration protesters in the North, and preserved the tax-exempt status of religious institutions that preached hate and segregation.
Rothstein argues that this state of affairs didn’t just violate the Fair Housing Act, which came relatively late in 1968, but the Constitution itself. If the shape and depth of American segregation is the responsibility of the federal government—in violation the Fifth, 13 th, and 14 th amendments to the Constitution—then a remedy is required.
That isn’t the way most policymakers or judges currently see it. Rothstein repeatedly quotes a majority opinion written by Chief Justice John Roberts in 2007, which states that segregation as it exists today “is a product not of state action but of private choices, it does not have constitutional implications.” Rothstein’s entire book can be read as a carefully reasoned and researched rebuttal to that sentence, which is the accepted narrative of many of both liberal and conservative persuasions. (Rothstein notes that liberal Justice Stephen Breyer, in his 2007 dissenting opinion, agreed with Roberts’ framing.) But little can be done if these truths go unacknowledged by everyone from the justices on the Supreme Court to high-schoolers in American history class. Without an understanding of the sheer scale of the federal government’s role, housing segregation and the myriad ills it spawns will never be adequately addressed. That’s what Rothstein hopes his book will begin to correct.
The Color of Law has won accolades (here’s Rachel Cohen’s rave in Slate) for its ambitious attempt to push forward the debate over residential segregation toward far more radical solutions than any under consideration today. In a recent conversation, Rothstein discussed how his book builds on previous scholarship on segregation, the marginal policies used to address these issues today, and whether a candidacy like Donald Trump’s would be possible without pervasive residential segregation. The interview has been edited and condensed for clarity.
Jake Blumgart: You describe how public institutions in American life have been complicit in building and maintaining residential segregation. You call this “the forgotten history.” Why do you think this essential issue is so poorly understood?
Richard Rothstein: We have forgotten it because it is difficult to deal with. When we desegregated other areas of life, it was very easy to see how to remedy it. If you abolish segregation on buses, people can sit anywhere the next day. If you abolish segregation in restaurants, you can go to any restaurant the next day. Even if you abolish segregation in schools, children can go to their neighborhood schools regardless of its majority race—if it’s enforced.
But if you abolish segregation in housing, which we have a constitutional obligation to do because of the way it was created, thinking about how to go about doing that is very difficult. People can’t pick up and move to a middle-class suburb the next day. We’ve avoided thinking about it and avoided the history because it’s a difficult. But unless we remember this history, we aren’t going to have the kind of national conversation that is necessary to begin to fashion remedies.
What role do you see your book playing in this conversation? There are historians who have told aspects of this story, from Ira Katznelson’s When Affirmative Action Was White to Kenneth Jackson’s Crabgrass Frontier. What new ground does your book break?
What’s new is that The Color of Law brings together in one place all of the governmental actions that created residential segregation. Other books, like the Crabgrass Frontier, do a great job of describing particular parts of it. Jackson does a very good job describing how the federal government consciously and purposely segregated suburbia. How they suburbanized the metropolitan areas of this country on the specific requirement that no African Americans be permitted into the suburbs the federal government was subsidizing.
But the Jackson book doesn’t go into how public housing played a role. My book goes into the financing of exclusively white suburbs, public housing, zoning, the granting of tax exemptions to institutions that promote segregation. It brings it all together, and it’s written, I hope, for more of a general audience and not a specialist urban historian audience.
Your chapter on public housing does a remarkable job of describing how, exactly, that public policy was doomed by segregationist policies promoted by the federal government. But today, if you asked the average person, they’d just say public housing failed, end of story.
The federal government created public housing in many cases to segregate communities that had never known segregation before. It razed integrated neighborhoods to build segregated public housing. It did this in Atlanta, in Cleveland, in St. Louis, and in every area of the country.
We think of public housing today as high-rise vertical slums where low-income, unemployed single-parent families are living. That’s not how public housing started. It started as a program for middle-class white families who didn’t have housing in the Depression or in the housing shortage after World War II. The federal government built separate public housing projects for whites and blacks, although mostly for whites.
In the mid-1950s, when the civilian housing shortage ended, white projects had large numbers of vacancies throughout the country while black projects had long waiting lists. The reason for that is the Federal Housing Administration subsidized moving white families out of public housing and urban areas and into exclusively white suburbs. The federal government subsidized bank loans to mass production builders of suburbs everywhere in the country on condition that those builders sell no homes to African-Americans and on further condition that the builders place clauses in their deeds prohibiting owners from selling their homes to African Americans.
The best known of these suburban developments is Levittown, east of New York City. The only way Levitt assembled the capital for 17,000 homes was to get a federal government guarantee of the bank loans for construction. That guarantee came with a condition that he sell no homes to African Americans. Every deed had a clause excluding African Americans.
Today, Levittown is still [below] 3 percent African American in a metro area that’s 15 percent African American. Those homes sold in the late 1940s for $8,000 apiece—that’s $100,000 in today’s currency. Working class whites or African Americans could have afforded a home there, especially with a mortgage that was FHA-insured and a Veterans Administration loan, perhaps, that required no down payment. It wasn’t affordability—African Americans were as able to afford those homes as whites were—but they were prohibited from doing so by the federal government.
Now those houses sell for $300,000 or $400,000, so the white families that moved there gained $200,000 or $300,000 in equity while black families gained nothing. The result is a wealth gap where African Americans have the equivalent of 5 percent of white wealth, far larger than the income gap where African Americans earn an average of 60 percent of white incomes.
That enormous difference is almost entirely attributable to federal government policy. Public housing concentrated African Americans in urban areas together while the federal subsidy of white developers in the suburbs created this situation. Few remember how the suburbanization of the country was accomplished—even though this was not a secret. This isn’t hidden history. It’s forgotten history.
You extensively document that segregation is not only the burden of the South but of every region of the United States. Especially after the fall of Jim Crow, are there any important distinctions between Northern and Southern segregation?
Ira Katznelson describes very well how Southern Democrats would not support the national economic program of the Roosevelt administration unless it excluded African Americans from its benefits. The kinds of occupations that typically employed African Americans, like domestic work and agriculture, were excluded from Social Security and labor regulations because these were national programs.
But when we come to housing, there were no Southern Democrats demanding housing be segregated in the North. Just as they weren’t demanding prior to 1954 that schools be segregated in the North. They were quite content to have integrated housing elsewhere as long as they could preserve segregated housing in the South. You can’t explain the Roosevelt administration’s decision to segregate housing across the North, West, and Midwest as something they did to appease Southern Democrats.
Historically this hasn’t been such a partisan issue in that there have been plenty of segregationist tendencies in both parties. George Romney, a Republican, is one of the public officials in American history who most vigorously pursued an integrationist agenda.
But these days Republican Party politicians have been more explicitly targeting their pitch to white people. Do you think that could make reform on housing segregation even harder?
I don’t think there is a partisan difference on housing segregation. I talk about the  Supreme Court opinion where the conservative chief justice’s plurality opinion and the dissenting opinion from the liberal Justice Stephen Breyer both accepted the notion that the reason our metropolitan areas are segregated is de facto, just the accident of personal choice.
I think the concept of de facto segregation is widely accepted across the political spectrum, and it’s not something that only Republicans hold. This history has been forgotten, and liberals are unaware of it as much as conservatives are. Both operate under the illusion that there is no constitutionally required remedy for it.
I would largely agree with that, although Democratic politicians are more likely to pursue public policies that could help around the margins, like the Affirmatively Furthering Fair Housing rule or the Section 8 reforms that try to allow voucher holders to rent in areas of higher opportunity.
That’s true, but the emphasis there is “on the margins.” Small area rent reform in the Section 8 program is important, but few low income African Americans have Section 8 vouchers in the first place. Only one-fourth of eligible families have them. Of those, even with small area rent reform, very few would move to high opportunity areas because there are very few that will accept them. Landlords across the country are allowed to discriminate against Section 8 voucher holders.
I agree around the margins there is a difference, but the big problem is the existence of segregated metros overall and these marginal programs aren’t going to put a crack in them.
It would need to be put front and center in a policy platform as health care reform has frequently been historically in the Democratic Party’s platform. A big-ticket issue like that.
To make a dent we need very, very radical programs that we are not even in a position to be thinking about now. We are laboring under this myth of de facto segregation and that it all happened by accident. Unless we understand that this is a government-created landscape, a policy created on purpose to segregate the races, then we aren’t even in a position to begin discussing how to change it.
I resisted spending much time in this book talking about reforms because it’s too easy to jump to talking about reforms that have no political support before we develop the conversation about how it happened. Until we understand how it happened, we can’t have an intelligent conversation about how to remedy it.
Where do you see signs of hope that the narrative about housing segregation has been evolving?
I’m not the only one who’s been writing about this. Ta-Nehisi Coates in the Atlantic has been writing about this. Nikole Hannah-Jones has been writing about it as well. But before we begin to have the remedial programs that are necessary, the conversation has to be much broader. The purpose of my book is not to spur action, which I think is premature; it’s to spur understanding on which future action can build. This book was not written for a Trump or a Clinton administration because I think the limited understanding even among progressives about how segregation happened hobbles our ability to do anything about it.
Do you think that the presidency of Donald Trump would be possible without deeply entrenched residential segregation that keeps populations so alien to each other?
Racial polarization partly contributed to Donald Trump’s victory and it is attributable to residential segregation.
White families have an image of African Americans as slum dwellers and who are unable to integrate into American society. What they don’t realize is that the slums were created by a government that restricted African Americans to central cities. Stereotypes about African Americans are a direct result of government policy that concentrated African Americans in slums, withdrew public services from those neighborhoods, and created a situation from which whites wished to flee. The results continue to this day.