Rothstein portraitThis piece was originally published in the 2017 Haas Institute newsletter.

An interview with Richard Rothstein on how the US government enacted policies to produce and maintain segregation—and the effects of these policies today. Rothstein was recently nominated for the National Book Award for his best-selling book, The Color of Law.

At some point over the past few decades, this country fell into a state of amnesia over how its towns and cities came to be so divided and unequal. Richard Rothstein, a senior fellow at the Haas Institute and an expert on education and race policy in the US, seeks to jog the nation’s collective memory with his critically-lauded book, The Color of Law: A Forgotten History of How the Government Segregated America.

The book, which was nominated in September for a National Book Award, details how the US federal government under President FDR's New Deal instituted a set of policies in the 1930s that explicitly separated white and Black residents. Existing mixed neighborhoods were demolished, their inhabitants forced to move to segregated areas.

Years later, in the 1950s, the federal government embarked on another program—suburbanization—that exacerbated segregation and racialized poverty in urban areas. The government’s Federal Housing Administration carried out this program by guaranteeing loans to real estate developers to build thousands of homes outside major cities on the condition they be sold to whites only.

The following is an excerpt of an interview with Rothstein on his scholarship as well as his role in an upcoming Haas Institute conference marking the 50th anniversary of the landmark Kerner Commission report, issued in response to the 1967 race riots in Detroit.

Outline your book The Color of Law for us.

We have a national myth that the reason every metropolitan area is segregated is because of the actions of private individuals, and we call that de facto segregation. The reality is that residential segregation was created by racially explicit, purposeful federal policy designed to keep races separate residentially. And because the system of segregation is not constitutional, it requires a remedy. So in order to begin the discussion of how to remedy residential segregation we first need to be acquainted with the history of how the federal government created it and did so with a number of policies.

One such policy was public housing. The first public housing began during the New Deal as a response to the housing shortage in the middle and working classes, primarily white families. In many cases, the federal government during the New Deal, starting with the Public Works Administration, created separate projects for whites and Blacks by demolishing integrated neighborhoods. It continued during World War II, when hundreds of thousands of white and Black workers flocked to the centers of defense production in northern, midwestern, and western cities and had no place to live, and the federal government had to build housing to keep the assembly lines going for the war effort.

Beginning in the 1950s when the civilian housing shortage began to ease, the country suddenly developed a widespread situation where there were large numbers of vacancies in white projects, and large waiting lists for projects specifically designated for African Americans. And the primary reason that existed was that the federal government embarked on another program, and that was to create financial incentives for white families to move out of urban areas into white-only suburbs, and it did this with the Federal Housing Administration (FHA). They had a program of guaranteeing bank loans of developers of large subdivisions. The condition of the FHA’s subsidy of these bank loans was that no homes be sold to African Americans. This was explicit.

Why hasn’t the federal government been able to acknowledge its role in imposing segregation?

Well I think the real question is why have all of us forgotten this history? The notion of de facto segregation is not something that is characteristic only of conservatives, it’s shared across the political spectrum. As far as why, I think the reason is it is difficult to conceive of how to undo it. And rather than confronting the difficult choices we have to make to undo the residential segregation that the government imposed, we’ve come up with this myth to excuse the fact that we’re taking no action to undo it.

How do you view the role of private discrimination in segregating America?

I would never deny that there was private discrimination practiced by landlords, real estate agents, and banks. But the whole system was structured by government policy...the entire landscape that we see today of segregated neighborhoods could not exist without goverment policy.  You might even say that the government responded to private prejudice by implementing these systems, but the Constitution doesn’t have a clause that says the federal government doesn’t have to obey its constitutional obligations if it’s unpopular.

What steps do you propose the government could take to reverse segregation in housing?

As white suburbs increased in value, and as homes appreciated in value, zoning ordinances were adopted that prohibited the construction of single family homes of modest plot sizes, or townhouses, or apartments in order to maintain the white character of the suburbs. If we understood this history we would prohibit exclusionary zoning ordinances and require their repeal, require inclusionary ordinances to be adopted that ensure that every community had a mix of low, moderate and higher-income housing so we can begin to develop an integrated society.

Another thing we might do is withhold the mortgage interest deductions from homes in communities that refused to take steps to integrate. Now, that’s a non-starter in today’s political environment because there’s no understanding of its constitutional necessity. But if we understood its constitutional necessity we could at least have a conversation about if that would be a wise way to proceed.

There are also two government programs that reinforce segregation. One is the Section 8 voucher program that subsidizes the rents of families for apartments which reinforces segregation both because the program does not prohibit discrimination against Section 8 voucher holders, and secondly, because the vouchers are calculated in such a way that are not adequate to rent apartments in middle class, high opportunity neighborhoods. The other major program is the low-income housing tax credit, which is a subsidy to builders to construct housing for low-income families. This program also reinforces segregation because most low-income housing tax credit developments are constructed in already segregated neighborhoods. This program can easily be reformed.

But the whole system was structured by government policy...the entire landscape that we see today of segregated neighborhoods could not exist without goverment policy

What will it take for officials to remember this history?

First let me emphasize I do not think the place to start is with federal officials. Federal officials are not going to acknowledge this history and begin to deal with it until the public does. The Supreme Court will not deal with this until there’s a new consensus that we have an unconstitutional system of residential segregation. So the first thing we need to do is educate ourselves about this history, and that’s the reason I wrote the book. We need to have a national conversation about this. One place to start this national conversation is the way we teach this to our students, to our children.

In a part of The Color of Law, I report on an examination I did of high school textbooks, their use throughout the country, and how they report on segregation in urban neighborhoods, and they systematically misrepresent it as being something that was done without federal responsibility. So one thing I do is I urge parents, and activists and inform the citizens to take action at their local school boards to ensure the history of de jure segregation, residential segregation, is taught accurately. Because if we do no better in educating the next generation about this history they’ll be in as little position to take steps to reverse it as we’ve been. So I think the first step has to be the development of a new national consensus. Only then will federal officials or local officials respond to it, and only then will judges respond to it.

Can you tell us a little about the upcoming “Kerner Commission at 50” conference?

The Kerner Commission, which was formed by President Johnson after the riots in 1967, issued a prominent report in February 1968, so we’re going to commemorate its 50th anniversary.

The purpose of the Kerner Conference is to look back retrospectively at the report, discuss some of its recommendations and the challenges it faced, to assess what’s changed between 1968 and today, assess the extent to which its recommendations have or have not been implemented, and try looking forward to think about what a new Kerner Commission might recommend today. The report in 1968 addressed housing, police-community relations, and education. Those are the main focuses, and each of those issues is unresolved today, but they take somewhat different forms than they did 50 years ago, so we’re going to try to look to see what we might do if we were the Kerner Commission today to reframe those issue and make different kinds of proposals