How Our Government Segregated America: An Interview with Richard Rothstein

Richard Rothstein is a research associate of the Economic Policy Institute and a Fellow at the Thurgood Marshall Institute of the NAACP Legal Defense Fund. He lives in California, where he is a Fellow of the Haas Institute at the University of California–Berkeley. He is the author of The Color of Law: A Forgotten History of How Our Government Segregated America (2017).

In your book, The Color of Law, you cite cases and decisions regarding public housing, racial zoning, fear mongering, and many others. You refer to particular individuals in some instances, but your main focus is on law and public policy affecting neighborhoods. What went into your decision to focus on mainly law and public policy vs. an expose of one or a group of individuals?

Well, it’s a critical constitutional difference. The Supreme Court has on numerous occasions made a distinction between de facto segregation and de jure segregation. De facto segregation is segregation that occurs because of personal decisions or private prejudice or discrimination (perhaps by rogue real estate agents) or because of income differences, none of which are state-directed or state-controlled, and it’s not explicitly remediable under the Supreme Court doctrine. What happened by accident has to be undone by accident.

De jure segregation, in contrast, is segregation by public policy, by government law or regulation—explicit public policy—not the accidental or occasional incidences of rogue public officials but consistent systematic public policy, and if the segregation of our residential areas is the result of systematic public policy, then it’s not de facto segregation, it’s de jure segregation, and it’s subject to constitutional remedy.

So it’s a critical distinction, and the purpose of the book is to show that even under the Supreme Court’s doctrine that de jure and de facto segregation are clearly distinguishable (a doctrine that sophisticated legal scholars don’t accept, but for the purposes of my argument I’ll accept it), that even under the Supreme Court’s doctrine, this is de jure segregation, not de facto segregation, and that’s the reason why I’m focusing on government policy.

Why don’t constitutional experts agree with this?

Some constitutional experts do agree de jure and de facto segregation are distinct categories; others argue that if racial discrimination is so widespread throughout society that it becomes structural, the distinction for this purpose between state and society is hard to maintain. What even those who accept the distinction are missing is the knowledge of the history—this history has been forgotten. The things that I’ve been describing in this book that you just mentioned, the government policies that segregated the nation were once well known but they’ve now been forgotten. And if the public forgets them then the courts forget them as well, and the purpose of this book is to help bring to the public’s attention a forgotten history of how the government implemented these policies that were open, explicit, not hidden, and well-known, only fifty years ago.

Thousands of military veterans who were seeking housing after World War II were turned away because of the color of their skin, like those who wanted to move into the Long Island suburb, Levittown, for instance. In your book, you correctly identified incidents where African Americans were assaulted by white mobs or subjected to psychological abuse while living in their homes as an insidious form of de jure segregation — the failure of racially biased police and public officials to protect African-Americans from unlawful intimidation. What might that process of law enforcement responding to their emergency phone calls or complaints under duress have looked like? Was it some kind of a lackadaisical response from public officials, or an enabling type of behavior?

Well, I would not consider actions of rogue police officers to be de jure segregation, but when it’s a systematic policy that comes from the top of the police command and from public officials, then it is a form of state-sponsored segregation. In the case of Levittown that you described, there was one police sergeant who was demoted because he resisted obeying orders not to interfere with rioters who were assaulting the home of the African American homeowner, and there were hundreds and hundreds of cases like this nationwide.

There were acts of violence against African Americans who had bought homes in white neighborhoods that were either condoned openly by police command—not just by individual police officers—or in some cases even systematically organized by police officers. I mentioned a case in Kentucky where half the police force were members of the Ku Klux Klan, and certainly knew who the Klan leaders were who had assaulted another home of a Navy veteran who had bought a home in a suburb in Kentucky.

I don’t mention in the book but another incident that I’ve researched is in Eagle Rock, California, outside Los Angeles. A police officer in uniform actually organized a mob, took responsibility for organization of the mob, to drive an African American family out of its home. So there were hundreds of these documented incidents where police and prosecutors failed to protect African Americans who moved into white neighborhoods — it wasn’t the result of rogue police officers acting on their own, and that’s why I call it a form of state-sponsored segregation.

Another example of de jure segregation in your book is Stuyvesant Town, an apartment complex built on Manhattan’s East Side in the 1940s by the Metropolitan Life Insurance Company. The beginning of construction for the complex included the city condemning 18 blocks of a racially integrated neighborhood and transferring the land to Met Life. Executives of the company were adamant that Stuyvesant Town was exclusively for whites, shutting out black people from the opportunity to live there. Does it hinder economic prosperity when there are these long-term “shut-out” policies?

Let me answer that in two ways: there was heavy government involvement, as you mention, in the construction of Stuyvesant Town, a segregated community that explicitly excluded African Americans. Insurance companies are very heavily regulated; the state insurance code had to be amended to permit Metropolitan Life to develop a segregated Stuyvesant Town, and as you say, the city condemned the land, and it gave Metropolitan Life additional tax exemptions.

The long term consequences of these policies, in terms of economic prosperity and equality, are enormous. Consider the example that you mentioned before of a development called Levittown, east of New York City, which was duplicated in hundreds and hundreds of cases in metropolitan areas all over the country. These suburbs were financed with guarantees by the Federal Housing Administration on condition—on explicit condition—that no homes could be sold to African Americans. In the case of Levittown and many others, the Federal Housing Administration even required that Levitt include in every house deed in the development a clause prohibiting resale to African Americans or rental to African Americans. This is explicit segregation.

The white families which bought homes in Levittown or in Daly City, south of San Francisco, or San Lorenzo, south of Oakland, or hundreds of developments in between that similarly benefited from FHA financing guarantees on a racially-exclusive basis—those white families bought those homes in the mid-20th century for, in today’s dollars, roughly $100,000. Today those homes sell for 300, 400, $500,000. The white families who bought homes in those developments over the next couple of generations gained 200, 300, $400,000 in equity, in wealth. That’s the main way that middle-class families get wealth in this country, by the acquisition of equity in their homes. African Americans who were prohibited from moving into those developments, although many were equally financially capable of affording to do so— these were working class homes selling for modest prices—rented apartments instead and accumulated none of that wealth. But for white families who accumulated that wealth, over the next couple of generations, they have used it to finance their children’s college educations, they used it to finance their own retirements, they used it for medical emergencies, and primarily, they used it to bequeath wealth to their children, who could then use that wealth as down payments for their own homes.

So, much of the economic inequality that we see today between African Americans and whites is directly attributable to unconstitutional federal housing policy practiced by the Federal Housing Administration in the 20th century. Today, African American incomes on average are about 60% of white incomes but African American wealth is only about 7% of white wealth, and that enormous disparity between a 60% income ratio and a 7% wealth ratio is almost entirely attributable to unconstitutional federal housing policy.

In the preface of your book, you write that America has a constitutional obligation to remedy de jure segregation in housing, and that its story must be told. Furthermore, you reject the phrase “people of color,” because it associates African-Americans with groups that didn’t suffer as systematically, like Asians and Hispanics. Why should this differentiation between other ethnic groups be emphasized?

Well, all low income families should have better social support from this country. Our social safety net is inadequate. All minority groups and low-income families of all races—Whites, Asians, Hispanics, African Americans—all need social support. But the constitutional obligation to remedy segregation applies primarily to African Americans. Of course there were incidents of state-sponsored segregation against Hispanics and against Asians, but not to the extent that its ongoing effects are as powerful as those I just described to you for African Americans. So while all minority groups should benefit from a stronger social safety net, from economic policies that promote upward mobility, that equalize wages, that raise the floor on wages — all groups should benefit from those. The constitutional obligation to do those applies primarily to African Americans.

I’d like to bring to your attention current civil rights issues in the news. What are your thoughts on the Charlottesville riot? Where were you when you heard about it, and what is your reaction?

I don’t actually remember where I was when I heard about it. I’ve been hearing about it constantly, and my reaction is like most people’s. On the one hand, I’m horrified by the rise of openly racist white supremacist groups. They’ve always been there, but they’ve been empowered and enabled by the current administration, so that’s horrifying. But on the other hand, we’re discussing race and the country’s history of a racial caste system that originated with slavery much more openly than we ever have done in the past and I think that’s a very positive development. I think that the attention that my book is getting is attributable to a willingness in the country to confront the history of a racial caste system, a willingness that didn’t exist previously.

So while we should focus on Charlottesville because it was a horrific incident, we should also focus on the removal, for example, of monuments to slavery that’s going on all over the South, and sometimes led by white politicians, for whom such acts were unimaginable just a few years ago. So I think that my reaction is that we’re in a period with both horrifying aspects and very positive aspects, and I don’t know whether the positive ones in the long run will overcome the horrifying ones, but I’m hopeful that we can have more of a national conversation about the need to remedy racial segregation now than we have anytime in the past.

How difficult is it to navigate the ups and downs of race-related coverage by the media and in the national conversation? Can you tell when the country is really suffering from more racism than in previous decades based on those patterns of stories which seem to dominate American racial discussions?

No, I can’t; I think we’ve always had a racial caste system in this country that originated in slavery. One of the points I make in my book is that the 13th Amendment that prohibited slavery also prohibited the characteristics of slavery, any form of second-class citizenship, and Congress immediately after the adoption of the 13th Amendment prohibited racial discrimination in housing, which we’ve never enforced, that provision, until 1968 with the Fair Housing Act. So we have a long, consistent history of racial subjugation in this country. I am encouraged by the fact that we are beginning to confront it, I think more today than we have at any time in the past.

When I first started writing this book in 2007, I wrote it because I thought it had to be written, I did not expect it to get any attention. The country wasn’t talking about it at that time. That was a time when, just a few years earlier in the late 1990s, President Clinton tried to start a national conversation on race and it went nowhere, it was soon forgotten. And then the incident in Ferguson, where a police officer killed Michael Brown, a young black man, started a national conversation on race again that was completely, I think, unexpected. It was promoted largely by social media, which didn’t exist before, and since that Ferguson incident, it has been possible to talk about and uncover the history of racial subjugation in a way that hadn’t previously been possible.

How can historians document history differently by taking your findings into account?

I’m not a professional historian, I’m an amateur historian, and there’s very little in my book that hasn’t been written about previously by professional historians. The subtitle of my book is, “A forgotten history of how our government segregated America” — it’s not a hidden history. There are many historians who have paved the way, and whom I cite in my book.

Kenneth Jackson’s Crabgrass Frontier laid out much of what I’ve just described to you about the Federal Housing Administration’s policies. Douglas Massey’s and Nancy Denton’s book American Apartheid also laid out a lot of it. There have been historians working in particular cities like Arnold Hirsch in Chicago or Thomas Sugrue in Detroit, who have laid this out. So historians have—although not recently, the books I’ve just described are at least 25 years old—documented much of this. What I’ve tried to do is bring together, in a way that’s accessible to a more general audience, not a specialist audience, all of the different strands of this historical scholarship to show that state-sponsored segregation was a system of many, many different aspects, all of which were documented separately by historians. But all of the different policies that you described in the very beginning of this interview reinforce each other and when you look at them as a complete picture, they show a system of state-sponsored segregation which I think has not previously been recognized. But the facts on which I’ve relied have mostly been documented by professional historians before.

Who has this book garnered the most attention from—the academic community or the public?

It’s been the general public, it’s been the reading public. I published this not with a university press but with a trade publisher in an attempt to reach the non-specialist reading public. It’s been promoted on NPR programs and through other public appearances that I’ve made, in reviews, in the popular media, and so that’s where the feedback is coming from. I think it’s making some inroads in the general public’s awareness because there’s an openness now to talking about race that has not existed before.