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Chapter 9
Themes
Key
LitCharts assigns a color and icon to each theme in The Color of Law, which you can use to track the themes throughout the work.
De Jure vs. De Facto Segregation
Segregation and the Preservation of Racial Caste
Racism, Profit, and Political Gain
Separation of Powers, Legal Activism, and Minority Rights
Summary
Analysis
Rothstein begins by noting that Americans often see segregation as the de facto result of generally poorer black families being unable to buy houses in more expensive, whiter neighborhoods. In addition to being just one among many causes of segregation, however, the income gap is also actually the product of intentional “government policies that purposely kept black incomes low throughout most of the twentieth century.” Because relative differences in income tend to pass from one generation to the next, these policies continue perpetuating inequality and, by extension, segregation. For example, local governments have placed higher tax rates on African American people, and forced them to spend more of their wages making up for the services they lost through segregation. This kind of inequality is largely responsible for black families’ current disadvantages in terms of income, wealth, and housing affordability. And it should be considered de jure segregation.
As with the mob violence covered in the previous chapter, it might initially seem confusing that Rothstein considers income differences between white and black Americans a form of de jure segregation. However, his argument is simple: income gaps cause segregation, government policy caused income gaps, and therefore the government caused segregation (which makes it de jure). This argument is particularly important because it directly undermines the “de facto segregation myth,” which holds that segregation is de facto precisely because it is a product of African American people’s lower income and wealth. However, in this chapter, Rothstein shows that these differences in income and wealth are actually results of (de jure) policy rather than (de facto) individual choices. Therefore, even if the “de facto segregation myth” were right that only economic factors keep African American people from integrating the suburbs (when, in reality, numerous factors contribute to this), the history of these economic factors would still make segregation de jure. Finally, “government policies that purposely kept black incomes low” of course have many negative consequences besides their contribution to residential segregation, and Rothstein does not mean to minimize these other consequences—they are simply outside the scope of his book.
Themes
In Part I, Rothstein explains that, even after slavery, truly free work was not available to most African American people. Many were forced into sharecropping, which trapped them in cycles of unrepayable debt, and at least 100,000 people were sold into slavery by governments that issued astronomical fines for behaviors like “vagrancy,” then forced to work off their debts in “plantations, mines, and factories.” These labor conditions were common until the 1940s, although many African American people in the South managed to escape them by moving North during the two Great Migrations that roughly coincided with the two World Wars and their aftermaths, when northern manufacturing jobs needed filling. The recency of these migrations has contributed to African American people’s difficulty “accumulat[ing] capital for home purchases.”
Rothstein again emphasizes that African American people’s second-class status descends directly from their economic exploitation under slavery. While many Americans think that the end of slavery meant African American people could suddenly access the same opportunities as white people, this is far from the truth: rather, for decades, the government, white segregationists, and wealthy interests who benefitted from maintaining a pool of cheap, unfree labor found new, technically legal—but still discriminatory and unconstitutional—ways to replicate the conditions of slavery. Recall that Frank Stevenson, Robert Mereday, and other participants in the World War II-era Second Great Migration were only allowed to take middle-class jobs because there was a shortage of white workers—otherwise, they and their families were completely blocked out of middle-class work through segregation. Because children inherit their parents’ wealth, families in the (disproportionately white) middle class and up can generally accumulate more and more wealth from generation to generation, while the (disproportionately African American) families who live in poverty fall further and further behind their middle-class counterparts with every generation. Today, the disparity remains, both as a legacy of this long history and because it remains more difficult for African American people to get the same jobs as white people, even when they have the same qualifications.
Themes
In Part II, Rothstein explains that, because Franklin D. Roosevelt had to cooperate with racist southern Democrats to get the New Deal passed, much of it excluded African American people. “Agriculture and domestic service” were generally excepted from all labor protections, and New Deal agencies like the Tennessee Valley Authority and Federal Emergency Relief Administration segregated their workforces, relegating African American people to the worst jobs. Beyond simply excluding “agriculture and domestic service,” the government ensured that primarily black industries—including things as specific as “canning, citrus packing, and cotton ginning”—were also excepted from labor protections. Similarly, pay increases in the textile industry bypassed African American workers, who saw their wages stagnate but “the cost of everything they had to buy” increase substantially. In the Civilian Conservation Corps, too, white people were consistently given preference over African American people, who were segregated (but commanded by white managers) or denied work altogether.
In the “Frequently Asked Questions” section at the end of his book, Rothstein clarifies that Roosevelt was probably something of a racist himself, and that his policies excluded black people because of a combination of his personal beliefs and political necessity. While it may be better to create programs for just white people than to create no programs at all, these programs still expanded the racial income and wealth gap, and Roosevelt could have actively pushed for the New Deal’s benefits to reach everyone equally, rather than giving in to the southern Democrats’ wishes. There is little doubt that the labor protection laws excluded specifically African American industries because workers in these industries had little power and policymakers had little interest in their wellbeing. By turning economic progress into a zero-sum game (that is, one in which white people only won if, when, and because African American people lost), the government limited the concessions industry would have to make to labor and ensured that nearly all improvements in pay and conditions were reserved for white people.
Themes
In Part III of this chapter, Rothstein notes that Franklin D. Roosevelt’s 1935 National Labor Relations Act originally specified that unions that discriminated against African American people could not be certified to bargain with employers, but a prominent union called the American Federation of Labor (AFL) got this specification removed. As a result, for more than three decades, the government not only unconstitutionally protected racist labor unions, but also supported unions that specifically lobbied companies to replace African American workers with white ones.
While labor unions play an essential part in protecting workers’ rights against the power of corporate executives, they do not necessarily represent all workers, and the conservative AFL’s successful lobbying meant that African American people were largely blocked out of the benefits that labor unions secured for their members throughout the 20th century, like better hours, conditions, and of course wages. As with racist white mobs and nonprofit organizations, while private groups are the ones discriminating, the government has a constitutional obligation to prevent their discrimination from having disparate effects on different racial groups—and when it fails to do this, it sanctions the actions of those private organizations as de jure.
Themes
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In Part IV, Rothstein notes how segregationist unions also suppressed black workers’ wages. During World War II, the federal government temporarily ran private factories for defense manufacturing, but these factories were still subject to racist union laws that restricted African American people’s access to work. The UAW was initially resistant to letting African American people work at the Ford Motor plant in Richmond, for example, but eventually agreed to let them take progressively better-paying and more skilled jobs. When he first moved to Richmond to work at the shipyard, Frank Stevenson couldn’t join the all-white Boilermakers’ union, so he joined the black “auxiliary union chapter[]” instead, and received no protection for the dues he paid. When the NAACP formally complained about the Boilermakers, the National Labor Relations Board did nothing. It finally banned segregationist unions in 1964, but never addressed the “decades of income suppression” that they created for African American people.
As Rothstein first mentioned while telling Frank Stevenson’s story in Chapter One, World War II was significant for African American workers because it marked the first time many could find reasonable middle-class work. They were included because of economic necessity, however, and not because of a desire to integrate on the part of government or industry—in other words, economic pressure forced some measure of integration, and the labor shortage naturally gave African American workers some of the bargaining power that was usually reserved for unions. Like other discriminatory organizations, these unions excluded black people because of a combination of individual bias and systemic self-interest—even white workers who did not personally oppose integration were likely to support the union’s policies, whatever they were. As with public housing construction and local land-use decisions, in this case the government gave too little, too late: while it stopped further damage from being done, it could do nothing to undo the damage that accumulated for decades before its decision.
Themes
After the union of Pullman railroad car porters (who were always African American) threatened to march on Washington in 1941, Rothstein recounts in Part V, Franklin D. Roosevelt agreed to ban “racial discrimination by unions and management in government-controlled war industries,” by creating a Fair Employment Practices Committee. But this Committee did nothing—it did not force any industries to integrate, its head was a segregationist, and its greatest victory was getting segregated unions “to create an exception” to admit individual African American people. During the 1940s, many city services and public utilities were segregated, and Rothstein offers numerous examples from the San Francisco Bay Area.
The extraordinary example of the Pullman porters’ union shows how African American workers could have much more effectively defended their rights and improved their working conditions if they had had real union representation. Beyond emphasizing the importance of unions and the way their discriminatory practices contributed to the growth of the racial wage gap, this example offers a powerful model for antiracist popular activism in the future. The utter uselessness of the Fair Employment Practices Committee again recalls the crucial difference between the way laws are written and the way they are actually implemented—for integration to succeed, individual members of the government need to actually feel compelled to carry it out, which means a change in public discourse is necessary along with a change in laws.
Themes
In the city of Sausalito, north of San Francisco, a group of black workers decided not to pay their union dues to the Boilermakers’ African American branch, which offered them zero protection. They were laid off, but appealed to the Fair Employment Practices Committee (FEPC) and eventually won in the California Supreme Court after a long legal battle. It was too late, however, since with the end of the war “the shipyards shut down.” Elsewhere in the United States, FEPC integration orders were similarly ineffectual, and Roosevelt’s government did nothing to punish industries that refused to integrate—neither has any government tried to remedy this issue after the fact. In fact, the benefits given to veterans during the G.I. Bill were largely denied to African American people.
While the black shipyard workers successfully made their political point by refusing to pay dues to a union that refused to represent them, the government’s ambivalence about the law ultimately ended up undermining these workers’ efforts, even though the courts recognized that they were correct about their legal rights. Once again, this court decision actually did nothing to restore the workers the rights they were illegally denied, which suggests that the government’s procedures for compensating victims of discrimination are inadequate at best.
Themes
In Part VI of this chapter, Rothstein notes that the U.S. Employment Service was one of the primary ways Americans found work after World War II, but it generally excluded and gave substantial disadvantages to African American people—many of whom were left without work, even though jobs were widely available. Although a presidential executive order mandated that all “federally funded construction projects” hire African American people, Rothstein finds numerous examples of firms that ignored this order, and he notes that, “even today,” unions routinely and systematically discriminate against African American workers.
As with nearly every other government-sponsored program for citizens during and after World War II, the U.S. Employment Service eagerly pursued segregation and provided inadequate services to African American people. As with Roosevelt’s other programs, a lack of enforcement substituted for formal discrimination, but it produced the same effect. Notably, after several decades the government still has not figured out how—or put in the effort necessary—to make unions truly racially inclusive, which shows that this is yet another important part of the present-day battle for racial equality before the law.
Themes
In Part VII, Rothstein explains how “discriminatory property assessments” have disproportionately increased the tax burden on black families. “By overassessing properties in black neighborhoods and underassessing them in white ones,” governments force black neighborhoods to cover a disproportionately larger portion of a city’s overall budget. This is systematic, and not the product of individual assessors’ biases. While seeing their houses assessed highly “makes [people] feel wealthier,” the tax assessment has no impact on “the potential sale price of a home.” Rothstein cites studies of more than ten different cities, which all show that in many American cities black residents pay several times more property taxes than white ones, in relation to the value of their homes. This means that “fewer funds [are] left for maintenance” in black neighborhoods, and African American people who have not paid their high property taxes are more likely to have their homes repossessed.
Like numerous other forms of discrimination that Rothstein covers in this book, discriminatory tax assessment is an incredibly difficult claim to prove in court—which is, in part, why it continues unfettered. The evidence he presents clearly proves that African American neighborhoods are systematically overtaxed, and because tax assessments are zero-sum (the total revenue needed for a locality is divided up by properties based on their value), the overtaxing of African American people not only deprives them of some of their rightful income, but also substantially increases the disposable income available to white people. Rothstein emphasizes how huge the effect actually is: owners pay several times more in taxes, for the same property, in an African American neighborhood versus a white one—even though, when it comes to sale prices, the effect is the opposite. This convenient reversal makes it clear that tax assessors’ economics are based on racism, and not the other way around (as agencies like the FHA long claimed). As with reverse redlining, the promise of wealth through homeownership actually becomes a tool to deprive African American people of the wealth they are able to accumulate.
Themes
In Part VIII, Rothstein explains how, since African American people were forced into ghettos, it has become harder and harder for them to leave, in part because housing is more expensive there, which lowers their incomes even further. There is and has always been “greater demand, relative to supply, for African American housing.” In the 1920s in Chicago, for instance, when white residents left an apartment and African American people moved in, they paid “50 to 225 percent” more in rent. It was not uncommon for six or more families to live in small, subdivided apartments. Because this pattern persisted throughout the entire 20th century, African American people consistently spent more of their income on rent and were less likely to save or build household wealth than white people.
Between higher rent prices and outrageous property tax assessments, African American people suffer an overall much higher cost of housing, which makes it even more difficult for them to save money when combined with their relatively worse chances of getting stable, middle-class work. Rothstein repeatedly emphasizes the gradual and long-term effects of these differences because the wealth gap is so pronounced now precisely because savings and wealth accumulate over time, within families. Because the government is responsible for setting these tax burdens and constraining the supply of housing for African American people (leading to higher rent prices), this wealth gap is a direct result of government policy.
Themes
In this chapter’s Part IX, Rothstein tells the story of Mahwah, New Jersey. Just as Ford moved from Richmond to Milpitas in California, it moved from a small site near New York City to the more distant suburb of Mahwah. White people could easily move there, but African American people were largely unable to move to the area, and therefore had to commute “sixty to seventy miles each way,” which cost them “about 10 percent” of their salaries and made it more likely for them to get fired for missing work. Rothstein concludes that segregation simply makes daily life costlier for African American people.
The stories of Richmond and Mahwah are significant because they illustrate the concrete harms that the relative inaccessibility of housing inflicts upon African American people. It makes them less able to adapt to changes in the economy and labor market, like the sudden relocation of a factory, as well as less able to cope with emergencies because of their relative lack of disposable income. And while many people consider commuting “seventy miles each way” normal, it is costly in terms of time as well as money. Moreover, because they are forced to live in relatively more impoverished and underserved neighborhoods, middle-class African American people do not receive the same quality services (schools, hospitals, food accessibility, etc.) as whites of the same income level, which also systematically deteriorates their quality of life.
Themes
