OUR TURN: Jones Walker Wiley on the Rothstein Solutions

We now conclude our look at Richard Rothstein’s The Color

of Law: A Forgotten History of How Our Government Segregated America.  His book shows, without real room for debate, that governmental action created the substandard housing African Americans have lived with and in for over 100 years.  We reported his solutions last time with little comment on what we think of them other than recognizing, as he does, many are controversial and have little chance of enactment in our divided political environment.  Still, he’s put good ideas out there and they merit discussion. 

Henry’s thoughts

As Rothstein notes, “We have greater political and social conflict because we must add unfamiliarity with fellow citizens of different racial backgrounds to the challenges we confront in resolving legitimate disagreements about public issues. …[R]emedies that can undo nearly a century of de jure residential segregation will have to be both complex and imprecise.  After so much time, we can no longer provide adequate justice to the descendants of those whose constitutional rights were violated.  Our focus can be only to develop policies that promise to fully untangle the web of inequality that we’ve woven.”  

Nevertheless, two suggested solutions at least attempt to fray the Gordian knot.  If we can explode the myth of de facto residential segregation, focused remedies might lead to informed understanding.  Development of transportation infrastructure allowing citizens to flow in and out of urban and suburban areas without currently existing barriers might

reduce suspicions based on unfamiliarity.  If we get to know one

another we can move toward dialogue, understanding, shared interest, and solutions.  A minimum wage that provides economic stability, and other incentives and remedies suggested below, might also produce progress.

Woodson’s ideas

I have White and African American friends who believe America’s ghettos, and the poor housing many African Americans live in, result from genetic and sociological pathologies inherent to African Americans. They remain unaware laws – local, state, and federal - made it illegal for lenders to loan money to African Americans in communities where property values would appreciate. These friends do not know for more than a hundred years it was illegal for most African Americans to live in integrated neighborhoods, though the major method for wealth building in America has been and remains the freedom to buy a home where the value of that home appreciates over time.  White and African Americans must know these facts, if we are to have any chance in enlisting both in the fight for equality.

Ultimately, this information must make its way into primary, secondary, and college curriculums. I suggest the President of the United States should, by Executive Order, create a commission that would travel the nation, holding hearings on where and how governmental policies have impacted housing in minority and majority communities and exploring the impact of de jure and de facto segregation.

I would model this commission on the Truth and Reconciliation Commission (TRC) created following the end of apartheid in South Africa. The TRC took testimony from victims of apartheid and its beneficiaries. It sought to reconcile historical adversaries so they could find a path forward, correcting the wrongs of the apartheid past. Similarly, the American commission could examine housing discrimination, educate the public on its history, and analyze solutions. The commission’s end goals: (1) correcting the history books; (2) affecting the curriculum of public and private schools; and (3) helping and encouraging legislative bodies in addressing past injustices.

A remedy that might come from this process involves a calculation of the monetary damages African American home buyers suffered by being denied FHA financing and the opportunity to buy homes in integrated neighborhoods. A simple mathematical calculation defines this point. The commission could identify homes of African American home buyers and calculate the current value of those homes had African Americans been able to purchase homes in white neighborhoods with FHA guaranteed financing. The federal government would pay the damage claim. The devil is in the details, but that’s the case with all damage claims.  Congress is unlikely to appropriate money for such a program  unless and until the public more completely understands the government’s complicity in damaging the African American home buyer, making the educational piece all the more important.   

   

Rob’s View

I am most intrigued by zoning reforms Rothstein suggests.  Substantive and practical

reasons make me think those ideas might achieve something.  Substantively, banning exclusionary zoning ordinances that require very large lot sizes for single-family homes in neighborhoods could and should open more areas to moderate income people and, therefore, make those neighborhoods less racially homogeneous.  I also see the merit in “fair share” zoning proposals that provide developers incentives to build more housing for moderate and low income buyers.  

Practically, I find these proposals attractive because zoning-based solutions don’t require changes in federal law.  State and local action could get such programs in place.  Cities and towns prove every day, on energy and environment matters, federal disinterest or hostility doesn’t have to mean nothing gets done.  Given Washington’s current dysfunction, little chance exists for meaningful federal action on housing discrimination.  States and municipalities can enact zoning measures on their own.

As we said at the outset, we see Rothstein’s book as essential for understanding how we got to where we are on race in America.  Housing discrimination isn’t, of course, the whole story, but it’s a big part of it.  We hope our exploration of The Color of Law will encourage our readers to read it themselves and reach their own conclusions.  What say you?   

Bad Facts and Bad Acts: Housing Discrimination Continued

Recently we began exploring Richard Rothstein’s well documented story of housing discrimination as developed in The Color of Law: A Forgotten History

of  How Our Government Segregated America, one of three books we’ve recommended as essential to understanding America’s racial issues. We started with Rothstein’s basic premise – that housing discrimination in the United States, rather than being mostly the product of individual prejudices and private acts, actually resulted from long-enforced, deliberate policies developed, legislated, administered, and enforced by local, state, and federal government.  We complete the narrative by highlighting how state action set up today’s segregated, discriminatory housing regime.  Later, we’ll review Rothstein’s proposed solutions and examine the questions his ideas generate. 

Government – Private Agreements

Almost every first year law school real property course includes a segment on restrictive

covenants and two of the leading U.S. Supreme Court cases, Shelley v. Kraemer and Jones v. Alfred H. Mayer Co., which finally limited them.  Such covenants were contracts among white property owners in a neighborhood not to sell to  African-Americans.  Property owners who violated the covenants by selling to blacks faced lawsuits, either from other owners or from property owners associations, since membership in the associations was often a condition of purchase and the by-laws of the associations included the whites-only provisions.

Restrictive covenants depended on government because they required court

enforcement.  Even blacks who bought a house from a white seller might get evicted by court order after buying the property.  State supreme courts upheld the covenants.  To make matters worse, localities promoting housing sales often advertised the existence of restrictive covenants in neighborhoods, thereby entangling government in the policies that promoted and enforced segregated housing.

Federal Housing Administration Policy

As we saw earlier, the FHA helped assure segregated housing with lending policiespolicies that denied government loans to black home buyers just on the basis of race.  The FHA’s promotion of segregated housing, however, went far beyond its loan practices.  The FHA accepted the maxim that the presence of blacks in white neighborhoods diminished property values.  Homer Hoyt, the agency’s principal housing economist in the 1930s, wrote that, “where members of different races live together … racial mixtures tend to have a depressing effect on land values.”

The FHA, in fact, encouraged white flight from neighborhoods into which African Americans found a way to move.  The FHA’s presumption of diminished property values helped support private actions of real estate agents in such practices as blockbusting, a scheme in which agents sold or rented a house to a black family in a border-line black-white area at an above market price then convinced white property owners in the area to sell out of fear the neighborhood was turning black.  The agents then bought homes from panicked white owners at below market values and sold them at high prices to blacks.

Freeway Construction

The 1940s, 50s, and 60s saw the beginning of America’s highway construction boom, including development of the Interstate Highway System.  

Freeways weren’t just built in wide open spaces, connecting major cities like Dallas and Oklahoma City.  Freeways went through cities, often meaning massive construction projects within them.  That displaced urban residents.  Rothstein demonstrates that the burden of displacements fell disproportionately on African American neighborhoods.  Governmental units overseeing highway construction, however, made little or no provision for relocating displaced residents.  With legal restrictions preventing African Americans from moving into areas occupied by whites, more and more blacks were forced into smaller spaces in the African American community, likely producing more and more ghettos.   

  

State Sanctioned Violence

Despite all the efforts government and private actors, with government support, made to keep African Americans out of white areas, sometimes they got in. Segregation’s advocates possessed another tool that limited black access to integrated housing – old fashioned violence.  The government played a major role in this as well.  

When a black family moved into a previously all-white neighborhood, rock-throwing, bombings, beatings, and other violent acts sometimes followed.  While private individuals carried out these acts, they often enjoyed immunity from police action or prosecution.  Law enforcement turned a blind eye to the violence and some black families left their new homes rather than face continued assault without police protection. Rothstein devotes a full chapter to this topic and the horror stories are just that – horrible.

Rothstein describes other policies and practices that contributed to a problem that very

much remains today.  He covers regulations and actions by the Internal Revenue Service, such as, until 1970, granting tax exemptions to private, whites-only academies established in the South to evade desegregation, tactics of school districts in locating schools in ways that discouraged or impeded integration, and the impact of income suppression through government action.  All these factors illustrate his basic point that private prejudice would never have had the impact it did without the active, intentional involvement of government at all levels.

Next, we’ll get to Rothstein’s solutions.      He covers HH