Richard Rothstein’s 2017 bestseller The Color of Law: A Forgotten History of How Our Government Segregated America has captivated readers—and most certainly educators. Rothstein talked with Teaching Tolerance about the history and endurance of racial and residential segregation, the inadequacy of how we teach and learn about this topic, and our collective power to turn things around.
What does the phrase “Color of Law” mean, and why did you choose this as the title of your book?
In the 1960s, when, for example, the police were enforcing segregation in Southern schools and colleges, the phrase “operating under color of law” was a very commonplace phrase that was used to describe officials, government officials, who used their official positions to act in unconstitutional ways to violate civil rights. …
It has other references as well. … The maps that I described were color-coded. The book’s cover is a redlining map created by the Home Owners’ Loan Corporation in the 1930s, a federal government agency that colored red the neighborhoods where African Americans lived, indicating these were neighborhoods that would be too high-risk for federal mortgage guarantees. …
Of course, the theme of the book is that we have de jure segregation, not de facto segregation. That is, it’s segregation that is imposed by government, by law. So those references came together.
What is the connection between housing segregation and school segregation?
Schools are more segregated today than at any time in the last 45 years. The reason that they’re more segregated is because the neighborhoods in which they’re located are segregated. …
I began this research because I understood that we could never solve the problems of American education, particularly the achievement gap between African-American and white children, so long as we had segregated schools, because when you take children with serious social and economic disadvantages and concentrate them in single schools, it’s impossible for those schools to produce students who, on average, achieve at high levels. So I came to believe and concluded that racial segregation is the single biggest problem impeding school improvement in this country.
In 2007, I read a Supreme Court case, with which you may be familiar. … It was a case in which the Supreme Court looked at desegregation plans in both Seattle, Washington, and Louisville, Kentucky. Both districts had choice plans—very, very modest choice plans. … So if you had, for example, in either Louisville or Seattle, a school which was all white or mostly white, and both a black and a white child applied for the last remaining place in that school, the black child would be given some preference. To the Supreme Court, it was a violation of the Constitution to take race into account in a pupil assignment program.
Chief Justice John Roberts wrote the plurality opinion. He said the reason it was unconstitutional was that the schools in Louisville and Seattle were segregated because the neighborhoods in which they were located were segregated. … Then he went on to say that neighborhoods in Louisville and Seattle were segregated by accident, because of … private choice and private prejudice and income differences and demographic trends. Government had nothing to do with it. He said if government had nothing to do with it, it’s a violation of the Constitution to take explicit action to remedy it.
But I happened to remember a number of cases ... of government involvement in residential racial segregation, and decided to investigate whether this involvement was systematic, not simply occasional. That was the origin of the book.
One point your book drives home effectively is that white policy makers at every level of government went through considerable lengths to enforce neighborhood segregation. How can educators explain this fact to students or colleagues who reject the concept of institutional racism?
The facts speak for themselves. I am not an educator, but it seems to me that the best remedy for myths is facts, and I think that these facts should be described not only to young people but to adults in as unpassionate a way as possible. Just tell the facts, and I think if we tell the facts unemotionally but descriptively and realistically, I think people and students can come to the conclusion themselves that it was government sponsorship that created this racial segregation. …
Residential segregation is an unconstitutional creation of government, a violation of civil rights that should be remedied.
How did the segregationist housing practices you identify in the book affect white people in the short term and in the long term?
I think we’re all affected by it, white and black. I don’t think that white people were affected more than African Americans, certainly. Both were affected. Today, the most serious social problems that we face in this country … are the result of residential segregation that we’ve not attempted to address. We’ve not attempted to address it because we’ve deluded ourselves into thinking that it’s some kind of natural phenomenon.
The achievement gap in schools is a direct result, as I’ve said before, of racial segregation. Disparate health outcomes for African Americans and whites are the results of racial segregation. It’s not that the better health outcomes of whites—their longer life expectancies—are the result of segregation, but the shorter life expectancies of African Americans who live in less-healthy neighborhoods certainly are.
One of the most serious consequences of residential segregation is the way it reinforces our national racial polarization. … It’s hard to mobilize support for universal programs and social programs because some people, some whites—not all, but some—are not willing to support programs that they think help black people. This is all the result of the distance between African Americans and whites that’s created by residential racial segregation.
Is there anything else you wanted to add about the effects on African Americans?
A big one is … the police community violence that we’ve recently seen expressed in places like Ferguson and Baltimore and Milwaukee that only exists because of racial segregation. If we weren’t concentrating the most disadvantaged young men in neighborhoods where they had little access to jobs and little opportunity, these confrontations wouldn’t exist, couldn’t exist.
The corruption of our police and criminal justice system is a direct result of racial segregation, and yet even progressive policymakers spend a lot of time trying to address only the symptoms, by reforming police and incarceration practices. Of course, we have to address the symptoms … but we never deal with the underlying cause of all of these problems, which is that we’ve created a segregated society.
Can you explain the phrase “badges and incidents of slavery” that you mention in the book? Why is it important, and how might it be used today to upend the racial caste system we still live with?
I think it’s indisputable that the segregation that we have today is a legacy of slavery. It’s a legacy of second-class citizenship that emerged out of slavery in violation of the 13th Amendment. The 13th Amendment emancipated slaves, but it had a second provision … that required Congress to implement this emancipation by enacting laws that would protect the civil rights of African Americans. Very shortly after the 13th Amendment was passed, Congress passed a law that prohibited housing discrimination. The Supreme Court in the 1880s prohibited the enforcement of that law.
In 1968, almost 100 years later, the Supreme Court recognized that it had been wrong in the 1880s, that Congress indeed had the authority under the 13th Amendment to ensure that African Americans would be equal, not second-class citizens ... The term you’re talking about is not having the badges and incidents of slavery, which include housing discrimination and the inability to participate fully as American citizens. It was the failure to fully implement the 13th Amendment … that led to the inequalities that we have today.
What makes you hopeful after doing all of this research?
I’m hopeful because if we understand that residential segregation was created purposely, by policy, then it’s easier to understand and to have the kinds of conversations necessary to develop policies to remedy it. …
I am hopeful also because we do have the very, very small beginnings now of a new civil rights movement in this country. … The Black Lives Matter movement has helped provoke it. We have things going on like the removal of statues throughout the South that commemorate slavery and the defenders of slavery, and the reception to my book has been quite surprising. It’s not just my book. The [books of] Ta-Nehisi Coates have gotten a wide readership. Michelle Alexander’s book The New Jim Crow helped to stimulate these kinds of discussions. So have others, like Bryan Stevenson’s Just Mercy, and Matthew Desmond’s Evicted.
It’s not enough, obviously. We don’t have, really, a civil rights movement to abolish residential segregation, similar to the civil rights movements we had in the 1960s—and we need one, and I’m hoping it can develop—but we do have the beginnings of it. Notwithstanding the empowerment of white supremacy that the president of the United States has pursued, at the same time there is also a development of race consciousness and awareness in this country, an awareness of the legacies of slavery and of Jim Crow that we haven’t previously had.
What types of professional learning experiences do educators need if they want to teach history thoroughly and accurately?
They need a curriculum they can use. They need to be able to present these facts to students. I will say that … the textbooks that we use to describe racial segregation all lie about it.
In the course of writing my book, I examined the most popularly used textbooks everywhere in the country. The most widely used textbook when I examined these was The Americans—1,200 pages. There was one paragraph in the textbook in that 1,200 pages called “Discrimination in the North”—not “Segregation” but “Discrimination in the North.”
There was one sentence—and you can get the exact quote from my book—but it’s something like “In the North, African Americans found themselves forced into segregated housing or segregated neighborhoods.” You know, they woke up one day, they looked out the window and they said, “Hey we’re in a segregated neighborhood.”
That’s what we’re teaching our young people! And if our young people don’t learn this any better than my generation and your generation and the several generations between us … they’re going to be in as poor a position to remedy it as we have.
How do we, as a country generally, make this important for people who aren’t in the housing field or in education, who are just American citizens?
I think there are two things that are necessary. One is that people need to learn the history so that they understand that they, as American citizens, have an obligation as citizens to remedy the violations of their Constitution. We all implicitly accept the obligation, as American citizens, to enforce our Constitution, and all Americans should learn about this so that we can accept this obligation, even if we are not personally involved in it.
But secondly, understanding alone is not going to make a difference. In addition to understanding the history, we need a new civil rights movement that’s mobilized around an attack on residential segregation. We abolished other forms of segregation in the 20th century with a civil rights movement that was biracial. It included both blacks and whites. It wasn’t just promoted by people who wanted to drink out of a water fountain. It was provoked by a national movement of people who understood that this violation of civil rights was a stain on our national character that was inconsistent with our self-conception as a constitutional democracy.
What would you say to people who feel that our country is already too far gone?
You know, I’m older. I lived through the 1950s and ’60s. The improvements that we made, the reforms that we made, were unimaginable before they happened.
One of the first jobs I had was in the early to mid-1960s. I worked for the Chicago Urban League as a research assistant. My job was to help with a study in which we tried to identify every policymaking position in the corporate sector of Chicago. We identified 4,000 jobs in the corporate sector of Chicago that were executive positions of one kind or another. Of those 4,000 not a single one was held by an African American.
Today, you could not have a corporation in the city of Chicago that did not have a diverse executive leadership. It couldn’t exist. If you had told people in the 1960s that the corporate sector of Chicago would look today the way it does, they would tell you, “That could never happen. We’d be happy with one executive.”
So one of the benefits of being older is you’ve seen things change that people who haven’t seen changes find hard to imagine, but the only limitation on what can happen is our lack of determination to make it happen.
Brown is the professional development trainer and Bell is the senior editor for Teaching Tolerance.