There are sometimes audible gasps in a room as Richard Rothstein talks about his book, The Color of Law, and the United States government’s work to create, encourage, and enforce racial segregation in housing in the 20th century. This was the case just a few short days after our interview when he spoke at Monarch Housing’s Color of Law Forum at Seton Hall Law School. He discussed American public housing as being primarily being built for white people, but in cases when it was not, buildings within a development were segregated (a noted example being St. Louis’ Pruitt-Igoe housing development—the Pruitt apartments were for Black residents, the Igoe for white residents). And so, when we examine what appear to be centuries-old, deep divides between people today, it is enlightening to learn that federally mandated housing segregation often segregated communities by race that had previously been integrated. We were pleased to speak with Rothstein about his years of work uncovering many of these truths about our not-so distant past, all of which are hidden in plain sight.
Keli Tianga: What prompted you to write the book?
Richard Rothstein: I was studying education policy. That was my primary field. And I came to understand that we could not solve our educational problems in segregated schools.
Schools today are more segregated by race than they have been for any time in the last 45 years, and the reason they’re segregated is that the neighborhoods in which they’re located are segregated. And we have been prohibited from implementing school desegregation plans that were racially explicit because the Supreme Court has concluded that the residential segregation that underlies school segregation is an accident, that it was not created by government policy, that it’s from “de facto” segregation created by private prejudice, or people’s desires to live with others of the same race, or income differences, or demographic trends, but not government. And if government didn’t create residential segregation, then the Supreme Court has said that we cannot enact explicit policies to desegregate.
I began to wonder if the Supreme Court’s historical analysis was correct, and I concluded in the course of this book that it was completely false. The reason we have residential segregation in every metropolitan area in this country is very explicit racial policies followed by federal, state, and local governments in the 20th century that were designed to ensure that African Americans and whites could not live near each other in the same metropolitan areas. Unless that narrative is known, it will be difficult, if not impossible, to desegregate neighborhoods, and if we can’t desegregate neighborhoods, we won’t be able to have integrated schools. And if we don’t have integrated schools, our educational problems will persist and probably worsen.
We interviewed Nikole Hannah-Jones at the end of 2017, and because we’re a housing-focused magazine, we wanted to know about the ways in which her area of research and investigation was affected by housing [segregation]. She said they [housing and education] go hand-in-hand, but even where there is starting to be more “integration,” —people living next to each other but not necessarily with each other, school integration is in some ways the last frontier. We see that white people, when moving into areas where predominantly people of color live, still work very hard to keep their schools segregated and their children in an insulated educational environment. What do you think about that? What do you think is the order in which we should be addressing this? Or is it a both/and situation?
I think that the integration you just described is only transitional, and not a new phenomenon. It’s happened over the last 100 years—as urban neighborhoods become more attractive to affluent families, upper-middle class families, they seem to be integrated when the process of gentrification first begins, but as it proceeds, more and more low-income, primarily African-American residents are displaced to new segregated areas, usually [inner-ring] suburbs. If you take a point-in-time snapshot, it looks like these neighborhoods are integrated, but they’re on the way from becoming low-income segregated neighborhoods to upper-income segregated neighborhoods.
The real problem is in the suburbs. It’s not in the urban areas, because when the families who live in the gentrifying areas are displaced, they are excluded from most of the metropolitan area, and so they wind up being displaced to newly segregated enclaves, usually inner-ring suburbs. And over the long-term, you don’t get greater integration. This has been happening for many, many years. Gentrification is just the newest name we’ve given to a process that we used to call urban renewal. When the Ferguson events happened, people wondered, “It’s a suburb, how did it become a majority African-American community?” Well, it became a majority African-American community because when urban areas in the city of St. Louis were urban-renewed—today we’d say gentrified—the families who lived there were excluded from most of the St. Louis metropolitan area. They were excluded because zoning ordinances prohibited the construction of apartments or townhouses, or even single-family homes on small lot sizes. And therefore, there was no place they could go except to a couple of suburbs that had apartments that were willing to rent to minority families, or willing to accept Section 8 vouchers, [or] where low-income housing tax credit developments were placed. So Ferguson simply became the displaced, segregated neighborhood of downtown St. Louis.
The same thing is happening today with gentrification. Of course, many of the advocates of reform focus on trying to preserve a share of housing in the gentrifying neighborhoods for the previous residents. They’re usually unsuccessful, but even if they were successful, the majority of those residents would be displaced. You can’t have it both ways. You can’t create an integrated neighborhood with large numbers of affluent families and preserve all the existing housing for the low-income families. Most are going to be displaced, and unless we deal with the segregation of the suburbs—the all-white, single-family home suburbs—this won’t create permanent integration.
Some of the integration remedies that you propose in your book involve African Americans moving to higher-opportunity, majority white neighborhoods. But because African Americans have historically borne the brunt of being moved, shouldn’t they be enabled to stay in the neighborhoods that are now becoming attractive to investors and affluent in-movers? What are some ways that government at all levels can ensure this?
We can enact some policies that will permit some to stay, but, you can’t both have all stay and have other, more affluent [people], move in.
The question is where are they being displaced to? We can try to preserve some housing in those neighborhoods for previous residents. We can do it by freezing property taxes so that families aren’t priced out of their own homes because of rising property values. We can do it by limiting the number of condominium conversions that are permitted. We can do it by requiring developers to set aside a share of units for lower-income families.
But the majority of people in those neighborhoods are going to be displaced as a result of this process of gentrification of urban neighborhoods. And the only way to permit all of them to stay is to prevent affluent families from moving in, and there’s no way to do that.
And that’s not happening.
There’s no way to do it. You can’t do it unless you have a zoning rule that prohibits the construction of anything but low-income housing in the neighborhood.
So, [the] majority of people are going to be displaced, and the low-income housing advocates have typically not focused on this majority. They focus on preserving a share of housing for existing residents, which is important. We can’t have an integrated neighborhood that gentrifies without preserving a share of housing. But, they ignore the much bigger problem, which is the need to integrate suburban areas, high-opportunity communities, so that displaced families aren’t concentrated in newly segregated, mostly inner-ring suburbs.
Does this mean encouraging the white people in existing suburbs to stay, while integrating those communities with people who have been displaced from urban areas, and hoping to preserve that integration?
The vast majority of white families are staying. You don’t need to persuade them. Gentrification is a minor phenomenon relative to the total. The vast majority of white families are not gentrifying urban areas. They’re remaining in single-family homes in exclusively white suburbs.
The exclusivity of those suburbs needs to be addressed in order to create integration of the displaced families from the gentrifying areas, and we’re not addressing it. And because we’re not addressing it, families that are displaced are being shifted to inner-ring suburbs while the outer-ring suburbs remain all-white with exclusionary zoning ordinances that prohibit their integration.
In the book you make the case for a de jure remedy for de jure harm in terms of racial housing discrimination and what those remedies might look like. Has your answer evolved as you’ve sat in discussion with people about your research?
I think, obviously, reparations are not happening in any of our lifetimes, and that may be a very unrealistic thing, although it probably would be a fair thing to talk about. Maybe some kind of compensation or some kind of reparation to the descendants of people who were discriminated against and forced into segregated neighborhoods.
All of the remedies that I sketched out in the book, and many, many more, are constitutionally required if we are going to maintain our status as a constitutional democracy. Once we understand that the racial segregation of every metropolitan area was created by unconstitutional, explicit government[al], racial policy designed to ensure that whites and Blacks could not live near one another, then we have an obligation to remedy it.
The racial segregation of metropolitan areas today is as unconstitutional as the segregation of buses, water fountains, lunch counters, and schools and colleges was in the 20th century. This is the one that we’ve left unaddressed, and we’ve left it unaddressed because we have deluded ourselves into thinking that, unlike all these other segregations, this one wasn’t government-created. But, the reality is that residential segregation was as much a product of government policy, law, regulation, as the other segregations that we abolished in the 20th century and we’re equally obligated, under the Constitution, to remedy it.
So, I sketched out a number of possible ideas of the kinds of remedies that could be implemented. I don’t prefer the term “reparations,” because I think it’s too narrow. Some of the remedies that we need to implement would cost money, so you might consider those reparations. For example, in the book, I describe a program to subsidize the home buying of African Americans who were excluded from government-created, white-only suburbs.
Purchasing the home at the price their ancestors would have paid?
Rothstein: Yes, it could be a variety of ways, but some form of subsidy for African Americans to buy homes in suburbs from which they were unconstitutionally excluded when the homes were affordable there. So that would be a cost item, but there are many, many policies that we should follow to desegregate the country that would not cost anything.
For example, the Low-Income Housing Tax Credits program is a Treasury Department subsidy, a tax credit, that’s administered by states in such a way that most of the low-income housing tax credit developments reinforce and exacerbate segregation because they’re primarily placed in already low-income segregated neighborhoods. That program could be revised so that a priority is placed on locating those developments in all-white, middle-class, high-opportunity communities. That wouldn’t cost the Treasury anything, it simply involves a shifting of where the tax credits are used. Of course, the low-income housing industry would oppose it because it’s harder to build these developments in high-opportunity neighborhoods, because there’s community opposition there, and they have to justify what they’re doing to the community and hold community meetings of hostile people who don’t want African Americans being brought into their neighborhoods. So developers’ transaction costs would increase, and perhaps their land costs as well, and the result is that fewer developments might get built, but for too long we’ve taken the easy way out of putting almost all of our low-income housing in already segregated neighborhoods, and we’ve paid a terrible price for that short-sighted choice of reinforcing segregation with these public programs.
The same thing is true of Section 8, the Housing Choice Voucher program. It reinforces segregation because most Section 8 vouchers are used in already-segregated low-income neighborhoods. We could change that program so we placed a priority on the use of those vouchers in high-opportunity communities. That wouldn’t cost much, it could be offset in large part by lowering the subsidies for vouchers that are used in low-income segregated neighborhoods, where landlords typically charge more than they could in an unsubsidized market. We should keep in mind, however, that the Section 8 program is not an entitlement—only about one-fourth of eligible families get a voucher—so I am not suggesting that a zero-sum outcome for such a reform is desirable. We should increase the program’s appropriation so that all eligible families receive a benefit.
The most important integration policy would be the repeal of exclusionary zoning ordinances in high-opportunity, middle-class, single-family home suburbs that prohibit the construction of townhouses, or low-rise apartment dwellings, or even single-family homes on small lot sizes. That would not cost anything, but it would be a very important step we could take toward creating the possibility for integration.
[And] getting to your question, one thing I think I’ve learned as I’ve talked about this book is how much resistance there is in the low-income housing industry, and even among low-income housing advocates, to changing their focus to the placement of low-income housing in high-opportunity communities. I’ve been surprised.
There’s been a debate in this country for 70 years among progressives about whether we should focus on integration or on the revitalization of low-income communities, and the choice has always been to focus on the revitalization of low-income communities. And I guess I’ve been a little bit surprised at how committed the low-income housing industry is to that choice and how resistant they are to having to deal with the need for integration.
Shelterforce has covered that discussion quite extensively. From what I’ve learned, the place-based work is focused on allowing people to maintain the roots and the community ties that they have grown over the decades, which is important, especially for lower-income people.
I don’t think that’s a strong argument. There are a lot of euphemisms there, but basically that’s an argument for separate but equal in our housing. It’s an argument for an apartheid system. And it’s unjustifiable in terms of our constitutional principles. It’s unjustifiable morally. Even if it were successful, which it cannot be because, by definition, you can’t create an equal neighborhood if everybody is low income. But, the price that we’ve paid for making that choice over the last 70 years has been a system of racial segregation which underlies our most serious social problems in this country today.
It is impossible, no matter how much good housing you build in low-income communities, for example, to close the achievement gap in schools if you’re concentrating children with the lowest incomes in single schools. It’s not possible. The schools will always be overwhelmed with the social and economic problems of those children.
It’s not possible to end the kinds of violent conflicts that we had in Ferguson and Baltimore, Milwaukee, and hundreds of other places in the last 70 years. It’s not possible to end that situation so long as we’re concentrating the lowest-income and most disadvantaged people in this society in single neighborhoods where there’s little opportunity, few good jobs, [and] little transportation. It’s impossible to address the health disparities [and] differences in life expectancy between African Americans and whites so long as low-income African Americans are concentrated in neighborhoods where there’s little opportunity.
The choice that we’ve made to so-called revitalize urban neighborhoods, or place-based strategies, as opposed to confronting the difficulty of integration is perpetuating the most serious social problems that we have in this country. And it’s the wrong choice.
No integration program would prohibit, or could prohibit, low-income families from “maintaining roots” in low-income, low-opportunity communities if they chose to do so. But integration would give them a choice. And there is a lot of evidence that when given a real choice, African-American families will jump at the chance to move to higher-opportunity communities. During the 20th century, there were thousands of cases where African Americans tried to move to higher-opportunity communities, but were driven back by police-protected vigilante violence. And there were also numerous cases where courts enforced the eviction of African Americans who chose to move to higher opportunity neighborhoods in violation of restrictive covenants. The reason we have such concentrations of low-income African American families in low-income neighborhoods today is that, since the Fair Housing Act was passed enabling middle-class African Americans to abandon low-opportunity neighborhoods, they did so, choosing not to “maintain roots” there.
Affordable housing is having a moment in mainstream conversation, and many argue that this is because the problem is finally catching up to the white majority. Do you think America is more ready for the discussion your book raises, or more resistant because we’re in a crisis?
I think we are now having a more accurate, passionate, [and] truthful discussion about the history of slavery’s legacy, its effects on the present day, and Jim Crow than we’ve ever had before in American history. I think there’s openness to this discussion, which was started really by the Black Lives Matter movement, but it’s been picked up everywhere. Nikole Hannah-Jones [is] doing wonderful work in this area [and] there are other writers doing the same. We have white elected Southern politicians demolishing statues that commemorate and celebrated [slavery’s] legacy, actions that would have been inconceivable even five years ago in this country. So, I think we are having a more accurate discussion of race and the importance of understanding the consequences of our failure to abolish second-class citizenship when we abolished slavery. I’m not suggesting it won’t face enormous resistance. We also have a resurgence of white supremacist sentiment, neo-Nazis empowered by the current administration, but I’m hopeful that the discussion of race and its consequences will continue, and that it will lead eventually to progress in desegregating the country. And I expect that you will see it in your lifetime.
I hope so. Speaking of this administration, do you know if Ben Carson has read your book? And have you encountered any lawmakers who are open to the idea of explicit remediation of our federal housing policy [of] segregation [and] discrimination?
I don’t think it matters whether Ben Carson has read my book, and I don’t think it matter[s] whether lawmakers are aware of these arguments and are wanting to remedy state-sponsored segregation. No action is going to be taken until there’s a much broader understanding and political support, until we have a new civil rights movement around the issue of residential segregation. Previous civil rights [victories] did not occur simply because lawmakers changed their hearts. They occurred because people were mobilized, in marches and demonstrations and civil disobedience and activism and lobbying, and got lawmakers’ attention.
All that still has to take place. People are becoming aware of these issues. I’m encouraged by the extent to which we’re having a national discussion of segregation and its costs, but it hasn’t reached a point yet where there’s enough political support for aggressive policies to desegregate the country, so that lawmakers will feel like it’s either possible for them to take action or feel that they’re compelled to act.
With all the documentation that your research has uncovered, is there enough here for a class-action lawsuit against the federal government?
There’s enough there, but it can’t be resolved with a class-action lawsuit because nobody would have standing to pursue such a lawsuit. There’d be a few cases. We’ve had some. For example, we’ve had cases in Baltimore and Dallas and Chicago and some other places that succeeded in showing that public housing created segregation by being placed only in already low-income African-American neighborhoods, and the remedies there have been mobility programs that have helped some, [but] very few, families to move to higher-opportunity communities. But, by and large, nobody today can say that, “my grandfather or great-grandfather was denied the opportunity to move to a single-family home by federal policy, therefore I have less inherited wealth than I otherwise would.” That’s not how our legal system works.
But there will certainly be plenty of work for civil rights lawyers, because if any of the [necessary] policies that I’ve described were ever actually implemented, they would be challenged, and the courts would have to uphold them based on a recognition that the policies were remedies for unconstitutional programs of state-sponsored segregation. And there’s sufficient history to justify upholding aggressive remedies on that basis. So if we had, for example, a first-time homebuyers program for African Americans that subsidized their purchase of homes in suburbs from which they were once excluded but which are now unaffordable, that would be challenged, and it would eventually have to be upheld by the courts, and they would have to rely on this history in part as a way of upholding it. I’m not suggesting that the courts don’t have a role here, but it has to start with policy. It has to start with political support, and then the enactment of policy to desegregate. And when it was challenged, it would have to be upheld.
For example, if Congress or a state were to prohibit zoning ordinances that excluded anything but single-family homes on large lot sizes in suburbs, and part of the justification of that prohibition was an understanding of how racially explicit policies on the part of government created the homogeneity of these suburbs that the zoning ordinances are designed to protect, a prohibition on those zoning ordinances would be challenged in court. And it would have to be defended in light of this history.
History is very relevant to the constitutionality of remedies, but we won’t get to it, by and large, through litigation. There was a case that challenged the state of Texas’s policies for assigning Low-Income Housing Tax Credits, and things like that will be possible. But most of the policies that are necessary to desegregate would have to be defended in litigation, but they wouldn’t originate with litigation.
Your book seems to have been received far and wide well beyond academia, and really touched a nerve, and I’ve heard you interviewed in many different places. Were people really shocked to learn of this federal policy? Do you know how people are using the book, or how would you like them to use it?
People are surprised. I was surprised when I did the research. We abolished segregation in all these other areas of American life, but we’ve left untouched the biggest segregation of all, which is residential segregation, and we accept it as part of the natural environment because we think it all happened by accident. And when people realize that it didn’t happen by accident, and that it was no secret, there’s nothing hidden about this history, they’re surprised and disappointed in themselves that we didn’t know this history and have somehow been so willing to rationalize away our failure to deal with it.
It has stimulated a lot of discussion outside academic circles and traditional housing advocates, and I consider that a very good sign, and I hope the discussion continues.
You’d mentioned in another interview about changes we need to make to our history books.
Right. If the next generation doesn’t learn this history any better than our generations have, they’ll be in as poor a position to remedy it as we’ve been. The first thing that everybody can do, whether they’re a professional in the housing field or not, is insist that their local schools teach this history accurately.