Abstract
The full title of The Color of Law: A Forgotten History of How Our Government Segregated America is ingenious and telling. The idea of acting under “the color of law” means that an action is taken by someone in a position of state power—such as a police officer, an elected official, or a representative of a federal agency—so that the action appears legal because of the authority of the actor. The phrase includes a connotation that the action exceeds that person’s authority or is, in fact, illegal. At the same time, the word “segregation” in the book’s subtitle cues the reader to interpret the word “color” as referring to skin color, and thus race. So, The Color of Law, as a title, packs a double punch. It simultaneously expresses that law and policy have been used to protect and privilege whites while harming and disadvantaging blacks, and that the government actors who carried out those laws did so with such authority that it is hard to imagine that their actions were unlawful, even though they often were, and are.
More specifically, the policy-makers and bureaucrats in the Federal Housing Administration, the Veterans Administration, the National Labor Relations Board, the Federal Reserve, the courts, and countless other federal, state, and local offices were acting under “the color of law” when they, in fact, contravened the constitution to create racially segregated neighborhoods in cities and suburbs across the entirety of the United States. The explicit—a word that Rothstein uses often—nature of these policies is what drives Rothstein to the key thesis of the book: “Segregation by intentional government action is not de facto. Rather it is what courts call de jure: segregation by law and public policy” (p.’viii). This book is an admonishment to all of us who continue to repeat this indefensible distinction.
The book’s subtitle is also important. It is the “forgotten” history, not the “untold” history, of the government’s involvement in establishing racial residential segregation. Rothstein acknowledges that his aim is not “to plow new ground but to call attention to this body of work and to ask all of us to confront it together” (p. 244). Rothstein does, in fact, plow some new ground by conducting original interviews and doing some original archival research, which he uses to powerful effect in this very well-written book. But for the most part, sociologists, historians, political scientists, and journalists who feel like we have been telling this story for decades will be comforted by his recognition that the story is out there, just not as loudly as it should be. The Color of Law will go a long way toward rectifying this. It is a masterful and wide-ranging narration of when, where, and how government actors have reinforced patterns of segregation that already existed, created segregation where none had existed before, and ignored white people’s violent efforts to maintain segregation.
Despite the large literature on the subject, there is undoubtedly something new in this book for even the most expert readers. For example, while we often think of school segregation as being built on neighborhood segregation, Rothstein shows how many cities used schools to produce racial segregation by neighborhood. In the 1920s, Austin closed black schools in integrated neighborhoods so that if black families wanted their children to go to school they had to move to the Eastside neighborhood, where the city intended to segregate and concentrate African Americans.
In another example of what may be a new argument to some readers, Rothstein argues that the Internal Revenue Service sanctioned the segregationist activities of churches and universities that promoted racially restrictive covenants through the protection of their tax-exempt status. In Los Angeles, a pastor of a church in the city’s Wilshire District sued to remove a black family who had moved to the neighborhood in “violation” of the neighborhood’s restrictive covenant. The pastor lost the lawsuit and was strongly reprimanded for his racism in the court’s ruling. “Yet,” Rothstein writes, “the IRS took no notice; Reverend Wright’s activities didn’t threaten his church’s tax subsidy” (p. 104).
As in the second example, some of Rothstein’s cases are acts of omission rather than commission: the failure of police departments to protect black citizens from house bombings when they moved into white neighborhoods; the failure of the Fair Employment Practices Committee to prosecute discriminatory employers contracted by the government during the Second World War; the failure of bank regulators to act on early evidence that blacks were disproportionately being targeted for subprime loans. These are moments when government agencies “defaulted on their constitutional obligations” (p. 113), which Rothstein sees as equally contributing to de jure segregation.
The Color of Law foregrounds the argument that racial segregation violates core constitutional principles expressed, primarily, in the Fifth, Thirteenth, and Fourteenth Amendments, and that is why it must be dismantled. But what is missing from the book is any troubling of racial integration as a social and political strategy. Racial segregation is foremost a tactic that allows for the uneven and unequal distribution of resources across space (e.g., good schools, parks, health care facilities, grocery stores, etc.), as well as the unfair siting of noxious facilities, and Rothstein gives examples of both of these outcomes. Yet he does not interrogate the possibility of equalizing resources and opportunities as a route to integration (or justice) as opposed to integration as a route to equalizing resources.
Nor does he give accounts of debates within black communities about the desirability or expediency of racial integration as a political strategy. In other words, since sociologists in this field have, for the most part, not “forgotten” the history that Rothstein chronicles, and since we continue to study present-day examples of state discrimination, some readers may be looking for a more critical interrogation: perhaps new theorizing or empirical evidence about the use of law to maintain racial inequality, or explanations for why the law has often proven ineffectual for remedying discrimination, or ways that law and policy might proactively be used to equalize resources.
To be fair, however, critiquing a book for what it does not include is all there is to do when what the book does include is so unimpeachably rigorous and persuasive. Rothstein also makes a compelling case for assigning this book in your classes. He was motivated to write The Color of Law after reading several Supreme Court opinions that overlooked or denied the facts of the government’s role in producing racial segregation and that employed the fallacious distinction between de facto and de jure segregation. We cannot know if the justices “forgot” the history or never knew it. But insofar as we are all teaching future voters, lawyers, and justices, Rothstein concludes with a call to action: “Whether a future Court is better educated is entirely up to us” (p. 239).