Book Notes: The Color of Law
The Color of Law
Premise: racial segregation is conveniently thought of as the result of private practice and an unfortunate outcome of complex decisions and situations, and not tied to any state action. This, the state argues it cannot remedy the situation on constitutional grounds. However, the author will make the case that state action has been more explicit and exacting in practices that led to segregation than conventionally thought, and thus it is the states responsibility to rectify that.
If San Francisco, then Everywhere?
Richmond, in the Bay Area, was a large shipbuilding town during WW2. Its population increased from 24,000 to 100,000 between 1940 and 1945, as an influx of migrants came for work. The black population went from 270 to 14,000. The government built public housing projects to accommodate the explosion of population; for African Americans, the projects were shoddily built near the shipbuilding area, while for white defense workers housing was built farther inland and designed for more permanent use. These living patterns still persist to this day.
When athletic of recreational facilities were shared by blacks and whites, local housing authorities pressed to have separate time for blacks. Social programs such as movie screenings and Scouts were segregated as well.
The government contracted a developer to build Rollingwood, a neighborhood of 700 houses that were not allowed to be sold to blacks. They were also required to have a separate bedroom and entrance, so that white workers could rent rooms in these houses. Low-interest loans were given to whites to subdivide properties to give temporary housing to other whites.
Many black workers moved to North Richmond, an unincorporated area for which the city provided no services. Those who had earned steady wages at war industries saved to buy plots of land, but since the federal government refused to insure bank loans to African Americans for housing, construction was unaffordable.
When the plant moved an hour south, African American workers were either forced to move to apartments closer or commute all that way, as the town had banned apartment building, only allowed single family home construction, and the federal government had an explicit rule against selling to African Americans when it came to insuring mortgages.
Near Palo Alto, no developers who relied on federal government loan insurance would sell to African Americans, and no state-licenses real estate agents would show them houses (as they would be blackballed from the MLS if they showed in white neighborhoods).
In 1954, a whites-only area resident of East Palo Alto sold their house to a black family. This brought in fear mongers smelling profit to be made by stoking racial fear, buying houses at a discount from whites and reselling them at a premium to blacks, who otherwise didn’t have options to purchase single family homes. FHA and the VA, along with Prudential and other insurance companies, as well as California banks all had policies barring loans or policies to whites in a neighborhood where African Americans were present. Thus, East Palo Alto became 82% black in six years, and due to the vacuum of single family living for African Americans, density in the neighborhood increased as multiple families shared single family houses. The school could no longer support the population, so the district proposed adding a school in the heart of East Palo Alto, which would in essence make Palo Alto completely segregated into East/west.
Public Housing, Black Ghettos
Public housing was initially real estate that ,while built by the government, was unsubsidized and tenants covered the full cost of operations with their rent. It was originally to give housing to those who could afford decent housing but were available to find it. NYC and Boston had rules to keep undesirable tenants out: irregular employment history, single-parent families, criminal record, poorly behaved children and poor housekeeping habits.
FDR’s New Deal crested the first public housing for non-defense workers, and established a pattern for segregation. The TVA (Tennessee Valley Authority) and CCC (Civilian Conservation Corps) separates whites and blacks, providing better housing in better locations to whites. The PWA was explicitly tasked with building public housing, and Harold Ickes, former president of the Chicago branch of NAACP. It’s policy was to follow a “neighborhood composition rule” in which the projects should reflect the previous racial composition of their neighborhoods. Even when there was no previous pattern of segregation, the PWA would still segregate projects, designating integrated neighborhoods as white or black and then using white-only or black-only projects to make it true.
The PWA would also demolish low-income neighborhoods with a large share of African American families to build new projects, which then would be populated by lower-middle-class families, pushing now evicted families to crowd into other neighborhoods. In the end the PWA built 16 white-only projects, 8 African American projects, and two internally segregated projects in the northeast and Midwest.
The USHA became the new housing authority once the PWA dissolved, with the intent to distribute subsidies for local administrations to build their own projects. It continued the policies of segregation. Overall, the public housing administrations either cemented or created new segregated communities.
Because whites had more access to the private markets (see last sections), there was growing dependence on public housing projects. This led leaders to veto housing projects intended for white neighborhoods and build housing projects in segregated areas, continuing the cycle of separation.
In the 1950s, several factors led to continuation of segregation policies: in some states, local voters had to authorize building of public housing, the Eisenhower administration removed policies such as requiring equal quality public housing between races, that net supply of housing available to African Americans was not reduced by demolition, and that public housing was prioritized to the neediest applicants regardless of race.
Robert Bork, President Fore’s Solicitor General, described the placement of public housing in white communities as having to “bear the burden of the housing, who will have to house a plaintiff class from Chicago, which they wronged in no way.”, also said as non-discriminatory housing policy is punishment on the innocent.
Cities would provide vouchers for those in need of public housing; in Miami, for African Americans this meant assignment to a specific project while whites receive a voucher for rentals of private apartments dispersed around the city. This lasted until 1998.
Starting in the 50s and being completed in the late 60s, the real estate lobby was able to inform policies that reduced the maximum wage for public housing assistance, forcing public housing to be limited only to the poorest families. This, in turn, reduced budgets for public housing, leading to deterioration and reduced resources of projects. It also removed political influence from the projects, kicked out many maintenance workers who’s wages now made them ineligible to live there, and sullied the reputation of public housing projects. Removal of the middle class from the projects started a deterioration of political will, funding, and conditions.
Racial Zoning
For many decades after the civil war, many lives peaceful in integrated communities are liberated slaves moved to the west, Midwest, and East. At the end of Reconstruction, as federal troops situated to protect African Americans moved out of the south, former slave states attempt to reassert a structure of white supremacy through violence and Jim Crow laws. Paramilitary militias were mobilized to prevent African Americans from voting. Segregation in public transportation and schools became the rule. The black-white coalitions that held public office in places like South Carolina were run out. Benjamin Tillman, leader of a massacre killing ten African Americans, is enshrined as the honorary name of Clemson University’s main hall.
Sundown towns were birthed, in which African Americans were banned from staying overnight in a town. At the federal government level, Woodrow Wilson instituted segregation in the White House, denotes black supervisors so white employees would only be overseen by other white employees, and during his time at Princeton refused to consider African Americans for admission.
Local public officials, unable to segregate largely integrated cities like Baltimore, Atlanta, Birmingham, Miami, Charleston, Dallas, Louisville, St. Louis, and others , started using local level zoning laws in 1910 to prohibit African Americans from moving in proximity of white families’ homes. African Americans were prohibited from buying homes on blocks where whites were a majority and vice versa. Baltimore, shortly after its ordinance went into effect, sought twenty persecutions by offenders.
A Supreme Court decision Buchanan v. Warley overturned Louisville’s racial zoning ordinance in 1917 on the grounds that the government was not to interfere with buying and selling of property, but this ruling was largely ignored elsewhere. Many cities argued their particular flavor of racial zoning was different than Buchanan so it did not apply; even when they were proved wrong in the court of law, they continued to follow those zoning policies.
For those cities that followed Buchanan, segregationists faced two problems: how to keep lower-income African Americans from living near middle-class whites and how to prevent middle-class African Americans from buying into white middle-class neighborhoods.
St. Louis had a thinly-veiled plan to be compliant with Buchanan but still maintain their desired racial situation. Overall, the scheme hinged on lower-income families not being able to afford single-family homes. The initial zoning survey took race into account, marking single family homes with deeds that prohibited African African ownership as “first-residential”, blocking apartments and requiring on future single-family home construction. Neighborhoods adjacent to African American neighborhoods were designated for future industrial use. Furthermore, taverns, night clubs, liquor stores, and brothels were permitted in African American neighborhoods but prohibited in white neighborhoods. When the FHA introduced amortized mortgages to promote home ownership, many African Americans living in industrial and commercial zones were not able to obtain the mortgages as the zoning created risk to the property value.
In the federal government, leaders of city planning councils adopted a policy of zoning as a means to the same ends that were sought with Buchanan. While on paper zoning did not have a racial component, the words, actions, and documents from these leaders and their organizations underlined how zoning was a constitutionally sound loophole to racial zoning. At the federal appeals court level, including the Supreme Court, policies such as only allowing multi-unit zoning next to outlying commercial areas and barring apartment buildings in single-family neighborhoods, were allowed on the grounds that they were not explicitly racially motivated.
Zoning, by segregationist design, kept African Americans out of white, single-family neighborhoods and cornered into multi-family residential, commercial, and industrial zones. It was also a tool to keep white, single-family neighborhoods from deteriorating by leaving polluting or toxic industry, such as landfills and incinerators, no other choice than to move near African American residences. This proliferated slum-like conditions in areas near these environmentally unsafe businesses and led to worsening health conditions for those around them, which due to zoning was largely African American families.
Zoning both created exclusive white suburbs and created African American slums.
Own Your Own Home
Zoning could prevent low-income African Americans, as well as all low-income families, from moving into middle-class neighborhoods. But it could not keep out middle-class African Americans alone - another tool was needed.
Whites were highly encouraged to move out of urban areas and buy their own home in the suburbs by the government. Why? There was fear of communism in the states, and the thought was that people who owned their own property would be less likely to turn away from the capitalist system.
President Hoover convened the Conference on Home Building and Home Ownership, which brought forth recommendations about zoning laws that maintained racial division. This was not surprising, as various leaders involved in previous racial zoning efforts were part of the conference.
Home buying was still expensive for middle and working class families - mortgages needed 50% down and repayment in 5 - 7 years. FDR created the Home Owners Loan Corporation, which would buy mortgages about to default and then extend their mortgages for 15 years. Because the HOLC was taking on potentially risky customers, they needed to determine how risky the mortgage was. The government created color coded maps to gauge the risk based on the racial composition of the neighborhoods; those with an African American or foreigner were deemed riskier than all-white neighborhoods, with red zones being the riskiest.
The FHA was also created during this time to help middle-class renters afford their first homes. The FHA would do their own appraisal to make sure the Lon had a low risk of default: because the FHA’s appraisal standard had a whites/only requirement, segregation became an official requirement of the federal mortgage insurance program, considering integrated or soon/to-be integrated neighborhoods too risky. Their primary concern was preventing school integration.
In the decades following WWII, suburbs across the country were created as white communities, with the FHA administering an explicit racist policy that solidified segregation. These were not only done as denial of individual mortgages, but financing of entire subdivisions and suburbs that were exclusive to whites.
After first having the Supreme Court knock down racial zoning in 1917, cities and agencies were able to get around that by zoning for single family and multi-family districts, with the intent to prevent racial integration. Simultaneously, the government conducted a propaganda campaign to entice whites out to government-financed suburbs. Mortgages were denied to African Americans by labeling certain neighborhoods (those that were not all white) as riskier, preventing home ownership and equity.
Private Agreements, Government Enforcement
State courts held up private covenants in neighborhoods, adopted by neighborhoods hubris, that barred selling to African Americans or non-harmonious ethnicities. This was used across the country and actively promoted as a solution once explicit racial zoning was outlawed.
The FHA endorsed this covenant as a requirement for large subdivisions it financed, and the VA followed suit.
In 1948 the Supreme Court ruled that it was unconstitutional for states to enforce restrictive covenants. The FHA largely ignored that rule, stating that there would be no change to their work as a result of the ruling. A few years after, when US solicitor General announced the FHA could no longer insure mortgages with restrictive covenants, the FHA informed field offices that the should continue to use restrictive covenants but as “gentlemen’s agreements”. As the 1948 Shelley case ruled against courts issuing evictions, the FHA in some cases continued to insure mortgages with racially explicit covenants that levied large fines on those who sold to African Americans. Even without court power, there was implicit racial prohibition which made black purchasers reluctant to buy into neighborhoods.
White Flight
The FHA’s policies were based on the assumption that racial integration decreased home values, adding more risk to the FHA’s portfolio. In many cases this was false or a self-fulfilling prophecy.
Exclusion of African Americans from suburbs caused home values on the outskirts of urban ghettos to rise as middle-class African Americans would pay above market value for those properties.
Blockbusting was a predatory tactic to profit off of white fear. Real estate firms would drum up fear of African American presence in neighborhoods by hiring African American women to walk through white neighborhoods with babies, call random homes asking for stereotypically African American names, hiring African American men to drive through neighborhoods with music blasting, etc. Then, real estate agents would purchase white homes at a discount and sell or rent them to African Americans at above-market prices.
IRS Support and Compliant Regulators
The IRS broadly did not withhold tax exemptions from institutions that explicitly promoted segregation, such as churches and academies that actively supported racial covenants.
States such as New York gave tax breaks to housing complexes that were going to be whites only, and also condemned and clear racially integrated neighborhoods to make way for those new developments in the mid 20th century.
In the late 90s and early 2000s. Banks participated in subprime mortgaging lending, targeting minority groups such as Latinos and African Americans - those groups were more likely to have subprime mortgages than economically similar whites. These loans were purposefully misleading, filled with high fees, had ballooning teaser rates, were based on a false premise of home value appreciation, and sometimes even offered when buyers would have qualified for a conventional mortgage. Given that the regulatory agencies had supervised the discriminatory actions, and had continued unabated, that the government implicitly allowed these policies.
Local Tactics
At local levels, government also stood in the way of building integrated and African American housing. This took the form of rezoning to block planned developments and increasing utility access fees to exorbitant prices. If sometimes legally dubious, the point was to delay and frustrate developers and buyers so that plans would be abandoned: “justice delayed is justice denied.”
In addition to policies keeping African Americans away from white suburbs, there were policies to keep populations away from downtown business districts and commercial centers. This took the form of slum clearance, in which “blighted” neighborhoods would be cleared for office space, universities, hospitals, and especially highways. The interstate highway system was partially proposed to President Roosevelt as helping accomplish “elimination of unsightly and unsanitary districts” by highways that routed through cities. During the decades of highway construction in the mid 20th century, linkage with destruction of African American communities was a common them. HUD officials knew that highway construction policies were disproportionately affecting African Americans yet continued to press on. Moving costs were not allocated to those whose houses were targeted for destruction, and no government assistance was required.
School location was a major way cities could circumvent unconstitutional explicit racial zoning policies. Cities could place African American schools in undesirable locations or where the city wanted African American communities to develop without providing transportation, and do the same for White communities, segregating the two communities by forcing parents who want their child to receive an education to move to the city’s targeted suburb for them. This was effective in planting roots of races in specific neighborhoods so that school segregation persisted long after the Brown vs Board of Education ruling.
State-sanctioned Violence
When African American families moved into white only neighborhoods, they often faced grave private action such as mobs, firebombs, and vandalism. Even though these sorts of attacks happened repeatedly and without discreetness, arrests were rarely made and these forms of intimidation happened unabated. Police officers would look the other way, not restraining the mobs inciting violence in an attempt to push African American homeowners out. Firebombs, gunshots, dynamite, cross burning, and brick throwing were all usual activities. This represented implicit de jure segregation, as police officers were generally not reprimanded for turning the other cheek, implying that this behavior was an appropriate response.
Suppressed Income
The rationale for segregation is that is de facto segregation from the income disparities between races. This line of thinning continues to say that once non-whites improve their education and are able to earn enough to move out of low/income neighborhoods, not much can be done. But, as history shows, opportunities for non-whites in terms of gaining and maintaining wealth have been very limited, along with other factors such as education, etc. African Americans were effectively barred from participating in home equity in growing neighborhoods was until the end of the 20th century.
New Deal programs by FDR needed the support of southern Democrats, who were fiercely committed to white supremacy. In turn, social security, minimum wage requirements, and labor Union recognition in occupations that were primarily staffed by African Americans, agriculture and domestic service, were not applied. New Deal programs actively excluded African Americans - Tennessee Valley Authority only used whites unless they needed more works for a job and worked separately, unemployed whites were the disproportionate target of FEMA funds, the National Recovery Administration withheld setting wages and hours standards for African American dominated industries, the NRA classified African American factories as having a lower cost of living (impacting wage rates) than white factories in the same state, the Civilian Conservation Corps relegated African Americans to menial, unskilled jobs in which they could not develop a trade, did not allow African American leaders even while units were segregated, and some states (Florida and Texas) barred African Americans from working with the CCC.
Roosevelt signed the National Labor Relations Act in 1935, written by Senator Robert Wagner, which legally empowered unions bargaining rights with management of supported by a majority of workers. There was also a clause that gave this empowerment to unions that explicitly banned African Americans, thus providing government protection and recognition to unions with explicit racial policies.
During World War 2 these effects were especially devastating. Factories negotiated with unions, granting them exclusive access to jobs for its members, which then in turn meant all-white unions would hire white women for factory jobs before African American men, and when workers were still needed African American men were cordoned into segregated, auxiliary chapters of the union that still paid dues but received a fraction on the benefits, such as not being able to file a grievance. Construction unions, postal unions, and other trades similarly refused African American membership, denying full African American participation in the income gains that followed post-war growth. In 1964 the practice was finally squashed, but without any remedy for the government-supported income suppression.
Income suppression also stemmed from housing. Multiple studies across decades found that African American households had larger tax assessment values relative to their market value than White households, leading African Americans to have to pay more for local tax (or, landlords having to pass that on to renters). Because African Americans were barred from residing in certain areas, housing supply was also limited, leading to much higher costs to rent or own. When businesses moved to the suburbs out of city centers to expand, and African Americans were not allowed to reside out in suburban streams, they carried the cost and time burden of transportation, taking long bus rides or carpooling. These three factors required African American households to use more of their income on housing related expenses than economically-similar White households, making it harder to save or build up a down payment for a home. This is the self-perpetuating result of structural racism and segregation.
Looking Forward, Looking Back
Voting, transportation, and employment are all future actions, and those civil rights laws can help shape those an have near immediate effects. Housing, on the other hand, is hard to unwind. In 1968, 50 years ago, the Fair Housing Act prohibited private discrimination in housing sales.
Neutral policies will result in disparate incomes, because the makeup of the citizenry is not equal; as African Americans have dealt with disproportionate disadvantages, neutral policy maintains and accelerated that. Policies have to be actively anti-segregation.
Some policies formed with good intent result in reopening segregation. Tax credit policy for building low income housing, which can be vetoed by communities. often results in developers building in already segregated, low-income areas because resistance will be much lower compared to middle-class areas, as well as cheaper land.
The Section 8 voucher program results in renters continuing to rent in high-poverty areas, as the coupon amount is too small for rentals in middle-class areas.
Considering Fixes
Segregation has resulted in deep cracks in our nation. African Americans have of course been dealt a bad hand as illustrated in the book. Whites also suffer from the effects of segregation - polarization stemming from our separateness has enabled politicians are able to make racial pleas, inciting strong voter support, while advancing economic and other policies that are bad for those same voters.
Desegregation will likely need to occur during a time if economic growth, where whites are less fearful of competition.
We must educate our youth - popular history textbooks currently do not describe how modern day segregation came to be, or even identify its existence.
The Obama administration unveiled a new rule to implement an under appreciated part of the 1968 Fair Housing Act which requires jurisdictions that receive federal funds to affirmatively further the purposes of the law. The Obama administration asked towns, cities and suburbs to assess their concentrations or absence of disadvantaged populations and remedies for segregated conditions, but didn’t outline what may happen if not acted upon. The Trump administration proposed prohibiting enforcement of this rule.
Remedies not palpable in today’s judicial or legislative environment would include purchasing houses that were on sale in previously white-only suburban projects and selling them to African American homeowners at their original price ($70k in Levittown, for example). It also would include federal subsidies for middle-class African Americans to purchase homes in suburbs that have been racially exclusive.
Another remedy would be a ban on zoning ordinances that prohibit multifamily housing or require large, single-family lots. Less extreme would be deny the mortgage interest deduction to property owners in suburbs that are not taking steps to attract their fair share of low- and moderate-income housing. New Jersey and Massachusetts have legislation that encourages or requires low-income housing for new projects in areas that are segregated. The only issue is that these do not solve the problem of segregation for middle-class African American families.
John Boger, a UNC law professor, proposed in 1993 a Fair Share Act that proposed homeowners in suburban jurisdictions that did not maintain a representative share of African American and low- and moderate-incoming populations as the metropolitan area would lose 10% of their mortgage interest and property tax deductions if they were not making progress toward racial and economic integration, with the percentage increasing each year.
Section 8 vouchers can be used to help desegregate. Often voucher holders end up in segregated, low-income neighborhoods, as those are the only rents affordable enough for the vouchers; by providing special vouchers that encourage moving to neighborhoods where then poverty rate is less than 10%, along with help by the state, cities may help spur integration. Additionally, more funds should be allotted to the Section 8 budget, as there are many more families that go without vouchers than have access to them. Social workers and counselors will need to be hired to help families transition. Things like property tax reduction to homeowners that rent to voucher holders could provide an incentive. Revitalization does generally occur when a neighborhood becomes attractive to the middle class. But all too often the gentrification that follows does not include strict enforcement of inclusionary zoning principles, driving the African American poor out of their now-upgraded neighborhoods and into newly segregated inner-ring suburbs.
Epilogue
Segregation has been the result of state action:
- Government building segregated housing projects in cities where segregation hadn’t previously taken root
- Government urged suburbs yo adopt exclusionary zoning laws, resulting in white flight
- Government did not provide FHA guarantees when homes were built for integrated suburbs
- Government blessed private discrimination by ordering eviction of African American homeowners in neighborhoods with association rules and restrictive covenants
- Government allowed segregated churches, hospitals, and schools to maintain tax-exempt status
- Police refused to arrest to prevent mob violence against African Americans
- State real estate provided licenses to brokers who sought to impose segregation
- School boards drew attendance boundaries to segregate schools, often against logistical sense
- Federal and state highway planners used urban interstates to demolish African American neighborhoods
- Government did not provide equal labor market rights to African Americans that other citizens enjoyed
- Government provides tax breaks for single-family suburban homeowners without spending adequate funds on transportation networks
- Federal programs current reinforce racial isolation by disproportionately directing low-income African Americans who receive housing assistance into segregated neighborhoods previously established by government policies
