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Frontispiece: Pittsburgh, 1940. President Franklin D. Roosevelt hands keys to the 100,000th family to receive lodging in the federal government’s public housing program. Most projects were for whites only.

PREFACE

WHEN, FROM 2014 TO 2016, riots in places like Ferguson, Baltimore, Milwaukee, or Charlotte captured our attention, most of us thought we knew how these segregated neighborhoods, with their crime, violence, anger, and poverty came to be. We said they are “de facto segregated,” that they result from private practices, not from law or government policy.

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.

Residential racial segregation by state action is a violation of our Constitution and its Bill of Rights. The Fifth Amendment, written by our Founding Fathers, prohibits the federal government from treating citizens unfairly. The Thirteenth Amendment, adopted immediately after the Civil War, prohibits slavery or, in general, treating African Americans as second-class citizens, while the Fourteenth Amendment, also adopted after the Civil War, prohibits states, or their local governments, from treating people either unfairly or unequally.

The applicability of the Fifth and Fourteenth Amendments to government sponsorship of residential segregation will make sense to most readers. Clearly, denying African Americans access to housing subsidies that were extended to whites constitutes unfair treatment and, if consistent, rises to the level of a serious constitutional violation. But it may be surprising that residential segregation also violates the Thirteenth Amendment. We typically think of the Thirteenth as only abolishing slavery. Section 1 of the Thirteenth Amendment does so, and Section 2 empowers Congress to enforce Section 1. In 1866, Congress enforced the abolition of slavery by passing a Civil Rights Act, prohibiting actions that it deemed perpetuated the characteristics of slavery. Actions that made African Americans second-class citizens, such as racial discrimination in housing, were included in the ban.

In 1883, though, the Supreme Court rejected this congressional interpretation of its powers to enforce the Thirteenth Amendment. The Court agreed that Section 2 authorized Congress to “to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States,” but it did not agree that exclusions from housing markets could be a “badge or incident” of slavery. In consequence, these Civil Rights Act protections were ignored for the next century.

Today, however, most Americans understand that prejudice toward and mistreatment of African Americans did not develop out of thin air. The stereotypes and attitudes that support racial discrimination have their roots in the system of slavery upon which the nation was founded. So to most of us, it should now seem reasonable to agree that Congress was correct when it determined that prohibiting African Americans from buying or renting decent housing perpetuated second-class citizenship that was a relic of slavery. It also now seems reasonable to understand that if government actively promoted housing segregation, it failed to abide by the Thirteenth Amendment’s prohibition of slavery and its relics.

This interpretation is not far-fetched. Indeed, it is similar to one that was eventually adopted by the Supreme Court in 1968 when it effectively rejected its 1883 decision. 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.

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Joseph Lee and Barbara Jo Jones. Their successful 1968 lawsuit established that housing discrimination is a badge of slavery.

The Color of Law is concerned with consistent government policy that was employed in the mid-twentieth century to enforce residential racial segregation. There were many specific government actions that prevented African Americans and whites from living among one another, and I categorize them as “unconstitutional.” In doing so, I reject the widespread view that an action is not unconstitutional until the Supreme Court says so. Few Americans think that racial segregation in schools was constitutional before 1954, when the Supreme Court prohibited it. Rather, segregation was always unconstitutional, although a misguided Supreme Court majority mistakenly failed to recognize this.

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.

By failing to recognize that we now live with the severe, enduring effects of de jure segregation, we avoid confronting our constitutional obligation to reverse it. If I am right that we continue to have de jure segregation, then desegregation is not just a desirable policy; it is a constitutional as well as a moral obligation that we are required to fulfill. “Let bygones be bygones” is not a legitimate approach if we wish to call ourselves a constitutional democracy.

Racial segregation in housing was not merely a project of southerners in the former slaveholding Confederacy. It was a nationwide project of the federal government in the twentieth century, designed and implemented by its most liberal leaders. Our system of official segregation was not the result of a single law that consigned African Americans to designated neighborhoods. Rather, scores of racially explicit laws, regulations, and government practices combined to create a nationwide system of urban ghettos, surrounded by white suburbs. Private discrimination also played a role, but it would have been considerably less effective had it not been embraced and reinforced by government.

Half a century ago, the truth of de jure segregation was well known, but since then we have suppressed our historical memory and soothed ourselves into believing that it all happened by accident or by misguided private prejudice. Popularized by Supreme Court majorities from the 1970s to the present, the de facto segregation myth has now been adopted by conventional opinion, liberal and conservative alike.

A turning point came when civil rights groups sued to desegregate Detroit’s public schools. Recognizing that you couldn’t desegregate schools if there were few white children in Detroit, the plaintiffs argued that a remedy had to include the white suburbs as well as the heavily African American city. In 1974, by a 5–4 vote, the Supreme Court disagreed. The majority reasoned that because government policy in the suburbs had not segregated Detroit’s schools, the suburbs couldn’t be included in a remedy. Justice Potter Stewart explained that black students were concentrated in the city, not spread throughout Detroit’s suburbs, because of “unknown and perhaps unknowable factors such as in-migration, birth rates, economic changes, or cumulative acts of private racial fears.” He concluded: “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.”

Most disturbing about Justice Stewart’s observation was that the civil rights plaintiffs did offer evidence to prove that residential patterns within Detroit and in the surrounding areas were in significant measure caused by governmental activity. Although the trial judge agreed with this argument, Justice Stewart and his colleagues chose to ignore it, denying that such evidence even existed.*

This misrepresentation of our racial history, indeed this willful blindness, became the consensus view of American jurisprudence, expressed again in a decision written by Chief Justice John Roberts in 2007. His opinion prohibited school districts in Louisville and Seattle from accounting for a student’s race as part of modest school integration plans. Each district permitted students to choose which school they would attend, but if remaining seats in a school were limited, the district admitted students who would contribute to the school’s racial balance. In other words, black students would get preference for admission to mostly white schools, and white students would get preference for mostly black ones.

The chief justice noted that racially homogenous housing arrangements in these cities had led to racially homogenous student bodies in neighborhood schools. He observed that racially separate neighborhoods might result from “societal discrimination” but said that remedyingdiscrimination “not traceable to [government’s] own actions” can never justify a constitutionally acceptable, racially conscious, remedy. “The distinction between segregation by state action and racial imbalance caused by other factors has been central to our jurisprudence. . . . Where [racial imbalance] is a product not of state action but of private choices, it does not have constitutional implications.” Because neighborhoods in Louisville and Seattle had been segregated by private choices, he concluded, school districts should be prohibited from taking purposeful action to reverse their own resulting segregation.

Chief Justice Roberts himself was quoting from a 1992 opinion by Justice Anthony Kennedy in a case involving school segregation in Georgia. In that opinion Justice Kennedy wrote: “[V]estiges of past segregation by state decree do remain in our society and in our schools. Past wrongs to the black race, wrongs committed by the State and in its name, are a stubborn fact of history. And stubborn facts of history linger and persist. But though we cannot escape our history, neither must we overstate its consequences in fixing legal responsibilities. The vestiges of segregation . . . may be subtle and intangible but nonetheless they must be so real that they have a causal link to the de jure violation being remedied. It is simply not always the case that demographic forces causing population change bear any real and substantial relation to a de jure violation.”

The following pages will refute this too-comfortable notion, expressed by Justice Kennedy and endorsed by Chief Justice Roberts and his colleagues, that wrongs committed by the state have little causal link to the residential segregation we see around us. The Color of Law demonstrates that racially explicit government policies to segregate our metropolitan areas are not vestiges, were neither subtle nor intangible, and were sufficiently controlling to construct the de jure segregation that is now with us in neighborhoods and hence in schools. The core argument of this book is that African Americans were unconstitutionally denied the means and the right to integration in middle-class neighborhoods, and because this denial was state-sponsored, the nation is obligated to remedy it.

Many legal scholars are properly skeptical of the distinction between de jure and de facto segregation. Where private discrimination is pervasive, they argue, discrimination by public policy is indistinguishable from “societal discrimination.” For example, if it becomes a community norm for whites to flee a neighborhood where African Americans were settling, this norm can be as powerful as if it were written into law. Both public policy discrimination and societal discrimination express what these scholars term “structural racism,” in which many if not most institutions in the country operate to the disadvantage of African Americans. It is pointless, these scholars argue, to try to distinguish the extent to which these institutions’ racially disparate impact originated with private or public discrimination. Government has an obligation, they say, to remedy structural racism regardless of its cause decades ago.

These scholars may be right, but in this book I don’t take their approach. Rather, I adopt the narrow legal theory of Chief Justice Roberts, his predecessors, his colleagues, and their likely successors. They agree that there is a constitutional obligation to remedy the effects of government-sponsored segregation, though not of private discrimination. I will take them at their word. Where The Color of Law differs is not with their theory but with their facts. For those who, like the Court, believe that the Constitution requires a remedy for government-sponsored segregation, but that most segregation doesn’t fall into this category, I hope to show that Justice Roberts and his colleagues have their facts wrong. Most segregation does fall into the category of open and explicit government-sponsored segregation.

Before I begin, some notes about word usage: I will frequently refer (indeed, I’ve already done so) to things we have done, or things we should do. We means all of us, the American community. This is not a book about whites as actors and blacks as victims. As citizens in this democracy, we—all of us, white, black, Hispanic, Asian, Native American, and others—bear a collective responsibility to enforce our Constitution and to rectify past violations whose effects endure. Few of us may be the direct descendants of those who perpetuated a segregated system or those who were its most exploited victims. African Americans cannot await rectification of past wrongs as a gift, and white Americans collectively do not owe it to African Americans to rectify them. We, all of us, owe this to ourselves. As American citizens, whatever routes we or our particular ancestors took to get to this point, we’re all in this together now.

Over the past few decades, we have developed euphemisms to help us forget how we, as a nation, have segregated African American citizens. We have become embarrassed about saying ghetto, a word that accurately describes a neighborhood where government has not only concentrated a minority but established barriers to its exit. We don’t hesitate to acknowledge that Jews in Eastern Europe were forced to live in ghettos where opportunity was limited and leaving was difficult or impossible. Yet when we encounter similar neighborhoods in this country, we now delicately refer to them as the inner city, yet everyone knows what we mean. (When affluent whites gentrify the same geographic areas, we don’t characterize those whites as inner city families.) Before we became ashamed to admit that the country had circumscribed African Americans in ghettos, analysts of race relations, both African American and white, consistently and accurately used ghetto to describe low-income African American neighborhoods, created by public policy, with a shortage of opportunity, and with barriers to exit. No other term succinctly describes this combination of characteristics, so I use the term as well.

We’ve developed other euphemisms, too, so that polite company doesn’t have to confront our history of racial exclusion. When we consider problems that arise when African Americans are absent in significant numbers from schools that whites attend, we say we seek diversity, not racial integration. When we wish to pretend that the nation did not single out African Americans in a system of segregation specifically aimed at them, we diffuse them as just another people of color. I try to avoid such phrases.

Because our majority culture has tended to think of African Americans as inferior, the words we’ve used to describe them, no matter how dignified they seem when first employed, eventually sound like terms of contempt. African Americans react and insist on new terminology, which we eventually accept until it too seems to connote inferiority. So at the beginning of the twentieth century, America’s subordinated race was called colored. Later, we came to think of it as Negro, first with a lowercase and then with a capital N. It was replaced by black, a term that has had a seemingly permanent currency. Today African American strikes us as most appropriate. In these pages, it’s the term I’ll use most frequently, but I will sometimes use black as well. Occasionally, in describing historical events, I will refer to Negroes, intending the same respect that it enjoyed in those earlier periods.

This shifting of terminology should not distract us from this underlying truth: We have created a caste system in this country, with African Americans kept exploited and geographically separate by racially explicit government policies. Although most of these policies are now off the books, they have never been remedied and their effects endure.

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* From this evidence, federal district court judge Stephen J. Roth, in his opinion that was overruled by the Supreme Court, concluded: “The policies pursued by both government and private persons and agencies have a continuing and present effect upon the complexion of the community—as we know, the choice of a residence is a relatively infrequent affair. For many years FHA and VA openly advised and advocated the maintenance of ‘harmonious’ neighborhoods, i.e., racially and economically harmonious. The conditions created continue.” Judge Roth urged that to acknowledge that other factors were also involved, we “need not minimize the effect of the actions of federal, state and local governmental officers and agencies, and the actions of loaning institutions and real estate firms, in the establishment and maintenance of segregated residential patterns—which lead to school segregation.”

† In 1948, Robert Weaver, long before becoming the first African American to serve in the cabinet, wrote a book called The Negro Ghetto that documented how government segregated the nation. In 1965, Kenneth B. Clark, the social psychologist whose research was relied upon by the Supreme Court in Brown v. Board of Education, published Dark Ghetto, which described the lack of opportunity in New York City’s Harlem. In 1968, the Kerner Commission (the National Advisory Committee on Civil Disorders) published its influential report that concluded: “[W]hite society is deeply implicated in the ghetto. White institutions created it, white institutions maintain it, and white society condones it.” A definitive scholarly study of how public policy segregated Chicago is Making the Second Ghetto, published in 1983 by Arnold R. Hirsch. 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 ghettofrequently.

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