How US officials, on capitalist principles, assured racial segregation by law

Review of Richard Rothstein, The Color of Law: A Forgotten History of How Our Government Segregated America (Liveright Publishing, 2017. $27.95)


It’s becoming pretty clear that the apparently irreversible reformist constraints on capital and ascendance of worker power that glimmered in the post WW2 world was in fact a, er, brief shining moment. For workers, evidence is mounting, the post-1980 landscape has been a wreckage of slow defeats and re-ascendance of capital. The notion of continual advancement of human behavior and society, or “Whig history,” takes another hit.

As Richard Rothstein’s “The Color of Law” definitively demonstrates, even that brief shining moment was also whites only. And most dishearteningly, the residuum of Jim Crow in individual whitefolks’ hearts south (and all too often north) of the Mason-Dixon line was the least of it. Through the period when the postwar boom (temporarily) leveled the playing field for returning working-class veterans and their families, the resistance to the advancement of people of color—at that time, mainly African Americans—was official, embedded in the federal bureaucracy’s leadership and cadre, and supported by the judicial system from local magistrates to the highest court in the US.

The tribalism of segregated, white residential communities, it becomes clear in this narrative, could have been eroded and a more integrated human landscape achieved in the US if a well-managed official response—federal, state and local—had steadily enabled race to be absorbed into class in housing practices. Instead, officials at all those levels freely enabled the perpetuation of the racial divide in housing, employment, union access, and many other aspects of life where division could exist.

In fact, many of those officials explicitly worked to undo existing communities where integration had organically taken place, sorting many mixed neighborhoods throughout the nation back into strictly segregated ones and exacerbating tensions. Whites who might otherwise have accommodated to diversity were virtually pushed to act in racist, often collectively racist, fashion, based on spurious premises of loss of property values or the equally spurious threat of disorder. The Federal Housing Administration as well as other lesser federal and state agencies actively promulgated “risk avoidance” in lending as a rationale for promoting segregation. The rancid whiff of capitalist practices is, as always, hovering around the normalized racial policies at all levels of government.

The appalling compromises that Franklin D. Roosevelt’s administration engaged in to gain votes from segregationist Southern Democrats in Congress have been well documented; Sam Pizzigati’s The Rich Don’t Always Win provides chapter and verse on that broad tragedy. Rothstein details, as well, how any Depression-era remediations such as the Civilian Conservation Corps were segregated and differently supported. The Wagner Act (National Labor Relations Act [NLRA]), as Rothstein points out, was weakened by unions themselves. The American Federation of Labor (AFL) successfully pressed Sen. Robert Wagner to remove requirements that unions eligible for NLRA certification had to admit African Americans to membership and workplace rights. As is more widely known, occupations that were largely populated by African Americans, such as agriculture and domestic service, were also omitted from the Social Security system at the behest of the Southern Democrats in Congress.

Any hope that the postwar era, with black veterans returning in large numbers from having defended the US and allies in what at least began as the nation’s least imperialist war, would see progress in race relations was quashed again and again by official law and practice. Housing, education, union membership, and workplace rights that would lead to better incomes were consistently walled off for persons of color in the postwar society. The steady drumbeat of Rothstein’s parade of examples gives the book a sickening edge, even for readers prepared to believe that systematic resistance from capital would play out in these imposed divisions.

Realtors, developers, educators, law enforcement, and the AFL all had a role in this set of practices, which kept white workers looking over their shoulders at people they were constantly told were their inferiors and opponents while the bosses standing in front of them picked their pockets with impunity. But Rothstein’s principal theme is the manner in which officialdom—courts, agencies, boards, and commissions—initiated, approved, or condoned, and steadily enabled this unconstitutional behavior by those on the leading edge of persistent racial segregation in the US.

All these factors created among the US’s white majority a “myth of de facto segregation”—a normalization of the nation’s continued racial inequality masked as personal preference on both sides of the color line. Rothstein notes with scorn a 2007 decision penned by SCOTUS Chief Justice John Roberts forbidding a school district to take any extraordinary measures to reverse the rampant imbalance within an urban school system (in Seattle). Roberts wrote that such measures were constitutionally impermissible where racial imbalance “is a product not of state action but of private choices” and “not traceable to government’s own actions.” This misleading finding bookends Rothstein’s account, setting the premises in the introduction for the development of the de facto mythology and providing the opening in the epilogue for Rothstein’s retort:

[Roberts’s] jurisprudence is flawed mainly because he and his colleagues got their facts wrong. Residential segregation was created by state action . . .   [invoking] the inseparable complement of the Roberts principle: where segregation is the product of state action, it has constitutional implications and requires a remedy.

Rothstein’s relentless and systematic account ranges from the Federal Housing Authority and its refusal to finance mortgages for nonwhites to the local-est official acts—exclusionary zoning, racial covenants imposed by communities, church groups, universities—and upheld in courts until Shelley v. Kraemer (1948) ruled that they violated the Equal Protection clause and could not be enforced. Local governments and communities fought Shelley for years and found many ways to drag their feet, again resorting to the economic argument of property value protection, unmasking the naked propertarian capitalism that lurked behind most of this litany of state resistance to racial equality.

In her book Who Can You Trust?, Rachel Botsman describes the inception of the now widely used credit report devised by Bill Fair and Earl Isaac. Their algorithms as early as the early 1950s “proved, again and again, that race . . . was not a predictor of good credit risk and refused to put it in their system” (p.167). But the unfounded myth of race-determined mortgage risk continued unabated.

The fear of disorder was also fanned by state action, including deployment of police powers to encourage and condone, and often to commit, racial violence to keep white communities white or to police black communities that have been aggregated by state action.

This (superannuated) reviewer had already completed two-thirds of his K–12 public education when Brown v. Board was handed down in 1954, and was attending junior high school in St. Louis County, MO. St. Louis frequently makes an appearance in Rothstein’s book as an urban complex where state practices like restrictive covenants were honed to a high effectiveness in keeping the races separate, including breaking up organically integrated communities and consolidating segregated ones. In the mid-1950s, Ferguson, MO, was a working-class white community with some African-American residents; covert blockbusting as housing bubbles waxed and waned made it into the community we saw erupt under fascistic police practices within the past few years.

The effect of residential segregation on the deep dysfunction of US K–12 education gets special attention from Rothstein, who made his bones as a thoughtful and insightful national education correspondent for the New York Times before becoming associated with the Economic Policy Institute, from which environs he did much of his research. Working from the findings of such earlier researchers as David Rusk, he notes the subtle disadvantages that accrue for African-American students constrained by such decisions as Chief Justice Roberts’s from the benefits of a socially and economically diverse classroom.

The continued isolation of these aspects of segregation—sequestered from better housing in diverse neighborhoods, from diverse public-school classrooms, from broader job availability and workplace rights and opportunities, in general from the (even limited) social and economic mobility that is more widely available to whites—are the result of the de jure, state-generated, aspects of segregation under “the color of law.” As the law has changed, Rothstein shows, today’s housing policy that allegedly remedies poverty generally consolidates public housing in already impoverished communities and aggravates existing effects of segregation.

Rothstein does not address the effects of capitalism explicitly in “The Color of Law,” but the constitutional veneration of property rights that enabled (or excused) the acts of officials runs through it like theme music. Though the constitution famously is also supposed to protect minorities from the dominance of majority opinion, that part of de jure was long in coming and arrived late.

“In the twentieth century, federal, state and local officials did not resist majority opinion with regard to race. Instead, they endorsed and reinforced it, actively and aggressively,” Rothstein observes. And as he points out throughout the book, during the accelerated prosperity for whites of the late 1940s to 1980, when unions reached their peak, labor power was most nearly equal to the power of capital and white families accumulated family wealth through housing prices ballooning—black families were shut out of the benefits whites used to gain their dominance. The slow gains in equal rights that began in the late sixties took hold too late to provide the escape from segregation and poverty that could have made a difference. When opportunity came, the economic window was nearly closed.

Rothstein’s “The Color of Law,” as he acknowledges, draws more from the work of others than from original research. As with any such work, the value is in what he is looking for: the evidence that the segregation of African Americans in the US is not the “white conceit” of personal preference across the color line—de facto segregation—but de jure, the result of state action done under the color of law.

Note: Steve Early has a discussion of the book and a Rothstein book talk appearance in Counterpunch.

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