Book Review: The Color of Law: A Forgotten History of How Our Government Segregated America by Logan Rutten

Book details: Rothstein, R. (2017). The color of law: A forgotten history of how our government segregated America. New York: Liveright. Hardcover, 345 pages, $27.95.

The version of Reconstruction Era history I recall learning in school in the northern United States went something like this: the states of the former Confederacy, sore over their loss in the Civil War and angered by the ratification of the Thirteenth Amendment, enacted laws designed to maintain existing patterns of racial segregation. Among the most egregious of these were the Jim Crow laws, which included literacy tests, poll taxes, and segregated public facilities. Southern schools maintained segregation with the blessing of the Supreme Court’s ruling in Plessy v. Ferguson. While there may have been segregation in northern cities, this was a result of the Great Migration of blacks from southern states to urban areas and the choices of individuals and private organizations, including the phenomenon known as white flight. Specifically, the difference between the South and the North was a distinction between de jure and de facto segregation; i.e., between segregation imposed and enforced by law (the South) and segregation that was a result of private choices (the North). This reading of history through the de jure/de facto lens can be a way for white northerners to discount the scars of segregation as someone else’s responsibility to address. However, Richard Rothstein (2017) extensively problematizes such an interpretation in The Color of Law: A Forgotten History of How Our Government Segregated America.

In his expansive book, Richard Rothstein (2017) attacks the notion that modern segregated housing patterns, including those in the North, are a de facto result of private individuals’ decisions. On the contrary, Rothstein thoroughly and convincingly dismantles this version of events. Rothstein marshals a staggering array of primary sources and interviews to demonstrate that the segregated housing patterns we see today in our nation’s urban areas are anything but de facto. While acknowledging the significance of individual decisions and the role of private banks’ lending practices in creating segregated housing, Rothstein makes clear how policies promulgated at all levels of government and across the country forcibly implemented racially segregated housing. He then argues for remedies to these injustices and notes that housing policy is inextricably linked to school demographics and inequitable funding. Rothstein’s text will be especially relevant to AJE Forum readers interested in policies related to school desegregation, as well as those seeking to understand the broader socioeconomic contexts for schooling in the United States.

The brilliance of Rothstein’s (2017) argument is that he adopts the language of the de facto and de jure segregation narrative while simultaneously rebalancing the facts on the side of the argument for the existence of de jure segregation in the North. In this way, Rothstein engages and extends traditional histories of segregation even as he reframes the issue. Rothstein provides compelling arguments, but his proposals for remedies do not necessarily follow from the evidence he offers. In the following paragraphs, I survey and critique Rothstein’s arguments and his conclusions.

The opening chapters provide the strongest support for Rothstein’s (2017) argument because they offer empirical evidence that de jure segregation was not confined to the Deep South, thus refuting the de facto narrative of northern segregation. Rothstein begins by detailing the practices of public housing officials that led to segregation. For instance, Rothstein discusses how the Public Works Administration, created in 1933 under Roosevelt’s New Deal, expanded public housing for blacks but did so through the construction of segregated housing tracts. Tracing the early history of zoning laws, Rothstein describes how in the 1910s major cities outside the Deep South passed segregation ordinances. St. Louis’s zoning boards issued permits for heavy industrial operations creating toxic waste to be established in black neighborhoods while restricting similar commercial activity in white areas. Dwellings in these industrially-zoned black neighborhoods could be subdivided while in the single-family white neighborhoods they could not, leading to the development of overcrowded slums. In Baltimore, authorities even pursued evictions of existing residents who lived in the “wrong” neighborhood. Working through numerous other examples, Rothstein drives home the point that these practices were the result of local policies promulgated by street-level bureaucrats, and, as such, constituted de jure discrimination and segregation.

Rothstein’s text will be especially relevant to AJE Forum readers interested in policies related to school desegregation, as well as those seeking to understand the broader socioeconomic contexts for schooling in the United States.

In Chapter 4, “Own Your Own Home,” Rothstein’s (2017) emotional argument begins to take shape. Rothstein provides detailed descriptions of the injustice perpetrated by the Home Owners’ Loan Corporation (HOLC), which was created by the Roosevelt administration in 1933 to buy mortgages of homeowners who were about to default on their payments. As benevolent as this might sound, the loans were based on property appraisals made by local realtors, who engaged in redlining practices that assigned a high risk for default to homeowners in neighborhoods containing blacks. Rothstein reviews the creation of the Federal Housing Administration (FHA) in 1934, which also engaged local realtors to conduct appraisals before issuing insured, amortized loans in which homeowners could build equity with each monthly payment. He shows how the FHA implemented de jure segregation through its Underwriting Manual. This document assigned higher risk to neighborhoods with integrated schools and to urban areas than it assigned to all-white and suburban areas. Rothstein quotes the manual, which also assigned more favorable ratings to areas where “‘[p]rotection against some adverse influences is obtained’ and that ‘[i]mportant among adverse influences…are infiltration of inharmonious racial or nationality groups’” (p. 65). There is little doubt which groups were considered “inharmonious” in this context: across the country, the FHA was enforcing segregation through refusal of insured, amortized loans to blacks or to white landlords willing to accept black tenants. Perhaps even crueler was that such policies were creating segregation where none had previously existed, including with new developments like Levittown, Pennsylvania. As a matter of federal policy, blacks were being systematically denied the opportunity to build equity and real estate wealth.

In a particularly poignant and persuasive section of Chapter 10, Rothstein (2017) details the processes by which tax assessors, manipulating the differences between fair-market home values and appraised values, taxed black neighborhoods more heavily than white areas. Inability to pay inflated property taxes led to foreclosures and evictions by real estate speculators, who paid the tax bills before flipping the houses to turn a profit. Citing extensive studies throughout this section, Rothstein writes, “Costs of segregation attributable to discriminatory assessment practices, suffered by an unknown number of African Americans, are not trivial. This was not simply a result of vague and ill-defined ‘structural racism’ but a direct consequence of county assessors’ contempt for their Fourteenth Amendment responsibilities, another expression of de jure segregation” (p. 172). Rothstein notes that this kind of systematic discrimination is the basis for a need for remedies in the present day.

As strong as Rothstein’s (2017) arguments may be for remedies in a generalized sense, the weakest part of the book is his translation of evidence into concrete policy proposals. Rothstein openly acknowledges that his ideas are “imprecise and incomplete” (p. 198) as well as unrealistic in the current political context. For example, Rothstein proposes that the federal government buy homes in formerly redlined areas at current market values and resell them to blacks at prices from the mid-20th century. Another suggestion is making special subsidies available only to blacks wanting to purchase homes in white neighborhoods. Such redistributive proposals are presently non-starters. They furthermore constitute unfocused policies in terms of defining and supporting their intended beneficiaries. Rothstein’s proposals are also suspect from an ethical standpoint because they invoke a deficit mindset to argue for integration, suggesting that “youth growing up in predominantly African American communities, even middle-class ones, will gain no experience mastering a predominantly white professional culture in which they, as adults, will want to succeed” (p. 203). To be more ethically sound and more realistic in the present political environment, Rothstein could have framed his proposals in terms of universal access to integrated housing and subsidized, insured, and amortized loans for low-income citizens of any race. A more focused approach could provide for racially targeted financial remedies open to blacks (or their descendants) who were denied loans or whose property values were overassessed for tax purposes. While Rothstein discounts the possibility of finding wholly appropriate remedies for descendants of those harmed by policies of segregation (p. 197), his evidence indicates that a paper trail of injustice clearly exists and could form the legal basis for a robust and systematic remedy.

Rothstein’s (2017) Color of Law is an unequivocal step forward in making the case for systematic remedies for systematic de jure segregation. Despite the shaky proposals he advances, Rothstein nevertheless makes a clear call for swift and decisive action to address past injustices. The text is a must-read for AJE Forum readers interested in issues of equity, school integration, or school finance, and it represents a significant contribution to correcting a dangerously incomplete narrative about segregation in this country.

Logan Rutten is a Ph.D. student in Curriculum and Supervision at Penn State University. A classicist and musician, he has taught grades K-12 in public, charter, and cyber schools. He has also worked as an assessment coordinator for the National Assessment of Educational Progress (NAEP). Logan’s current research interests include supervision as a form of inquiry, instructional coaching, teacher evaluation systems, and charter school finance. He earned a B.A. at Concordia College and the M.Ed. from Penn State.