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Chapter 4
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 notes that “many urban neighborhoods were already racially exclusive” long before this became translated into government policy—rather, “property owners and builders” promised segregation in deeds to houses and neighborhood agreements to keep African American people out. Eventually, the FHA made these kinds of promises explicit, but the Supreme Court decided that they are unenforceable by the government in 1948—although the FHA ignored this ruling and continued promoting segregation.
Rothstein’s argument has never been that government policy was the only cause of residential segregation—rather, he acknowledges that it always interacted with and reinforced other factors (like personal racism) to produce systematically unequal outcomes. While the FHA was responsible for making segregation an official, nationwide policy, the idea was actually pioneered by builders who saw the promise of racial homogeneity as a way to attract white buyers. In other words, they strategically used racism for its economic advantages.
Themes
In Part I of the chapter, Rothstein explains that property deeds frequently included “restrictive covenants” barring the resale of homes to African American people and mandating that all future residents (except housekeepers) be white. However, these contracts were hard to enforce, as they were between only buyers and sellers. To resolve the problem with restrictive covenants, neighborhoods began forcing families to sign contracts prohibiting resale to African American people. But, again, these contracts were only valid among those who signed them.
Restrictive covenants are peculiar: both clear attempts at discrimination and legally unenforceable, they were more about creating a social expectation or “gentlemen’s agreement” among white homeowners than about actually creating a legal basis for discrimination. The exception for housekeepers again shows how racism is embedded in an economic context and often bends only when profit is involved.
Themes
Next, developers started forcing buyers to join “community association[s]” whose rules “included a whites-only clause.” Such systems were incredibly widespread throughout the country: for example, more than half of New York City suburbs had them in the 1930s and 1940s. And they were enforceable: African American people were evicted from their homes and even jailed for buying homes in the wrong neighborhoods. One student organization required everyone to do chores, so its African American members legally met the definition of “domestic servant[s]” and were allowed to live in the organization’s house.
With existing FHA regulations prohibiting African American people from buying homes with financing, this additional layer of neighborhood association restrictions ensured that African American people with accumulated wealth or white friends willing to help them out also could not get their own houses. This is clearly about race, not class—the African American people likely to try and buy in white suburbs were at least as wealthy as the people who lived there.
Themes
In Part II, Rothstein looks at how governments “promot[ed] and enforc[ed] the restrictive covenants” of neighborhood and community associations. More than a dozen state supreme courts affirmed these covenants’ legitimacy and “local governments aggressively promoted” them, sometimes even hiring officials to go door-to-door and convince residents to support racist clauses. The federal government determined that restrictive covenants were legal “voluntary private contracts” in 1926, and presidents like Hoover made them a cornerstone of housing policy. But it did not “turn [from a] recommendation into a requirement” until Franklin D. Roosevelt’s presidency.
The debate over restrictive covenants shows the strange and delicate interplay between public and private forms of discrimination in the context of 20th-century housing: although restrictive covenants were ostensibly constitutional precisely because they were agreements among private individuals only, the government exploited this fact and used its power to actively mandate private discrimination, which Rothstein thinks clearly turns it into public (de jure) discrimination.
Themes
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In Part III, Rothstein explains that the FHA also gave better ratings to homes with restrictive covenants that banned selling to African American people, and explicitly supported such language in its Underwriting Manual. Sometimes it even required that prospective suburban developers write this into deeds before insuring their mortgages. This happened in Rollingwood, Levittown, and numerous other suburbs Rothstein has mentioned so far in his book, and the VA soon adopted the same policy.
As they did by redlining, the FHA and VA created powerful economic incentives for discrimination by requiring restrictive covenants. Notably, since these clauses stay on property deeds for generations and are difficult to remove, they remain on the deeds of numerous suburban homes well into the 21st century.
Themes
In Part IV of this chapter, Rothstein explains that the Supreme Court finally declared restrictive covenants unconstitutional in the 1948 case Shelley v. Kraemer, because enforcing them required government involvement and therefore violates the Fourteenth Amendment. But the FHA responded with “massive resistance,” deciding not to make any changes whatsoever—residents would no longer be able to enforce their contracts through courts, but the FHA kept encouraging them to make these contracts discriminatory. The next year, its director publicly announced the search for another “objective” way to exclude people from mortgages “because of race.”
It is important to clarify that Shelley v. Kraemer only banned the government enforcement of restrictive covenants—it did nothing to erase the ones that already existed or prevent informal kinds of enforcement (like neighborly agreements or the kind of angry mobs Rothstein profiles in Chapter Nine) from stopping integration in American suburbs. Yet again,, this example shows why the judiciary is powerless if the rest of government considers its decisions illegitimate. The FHA’s director seemed unable to process (or simply did not care) that his agency’s policies were unconstitutional precisely due to their discrimination “because of race.”
Themes
Ultimately, little changed after Shelley v. Kraemer. One integrated housing cooperative petitioned the FHA under the new law, but were told that their “interracial community” was ineligible for insurance. Two years after the decision, the solicitor general of the United States (the federal government’s top lawyer) formally ordered the FHA to stop including restrictive covenants on its mortgages, and the FHA publicly announced it would ignore these orders and privately planned new covenants that allowed neighbors and community associations to veto sales. Some “unnamed ‘FHA officers’” publicly declared they would stop insuring discriminatory real estate developers, but “this was plainly untrue,” because they continued to do so. In fact, the FHA did not really stop financing racist builders until 1962, when President Kennedy ordered them to do so.
The public battle between the segregationist FHA and the rest of the American government points to the troubling question of who determines if the government will follow the Constitution, and who can force actors who simply do not care about the Constitution to change their minds: it took more than a decade, and a direct order from the president, for the FHA to finally listen. The damage it did in that time period cannot ever be fully undone. In other words, while the courts play an important role in assuring the legality of government actions, they are not enough, and need to be supplemented by an active public and a legislative commitment to equality. If the government is dead-set on discriminating, it can pursue and institutionalize a pattern of criminal conduct, no matter how often the courts catch it.
Themes
Courts continued honoring old, racist restricted covenants for several years, and knowing that courts could no longer evict black families in violation of these covenants, the FHA changed the punishment to “exorbitant” fines often exceeding the price of the actual home. The Supreme Court blocked these fines in 1953, but the actual covenants remained legal until 1972. In fact, three of the justices in the Shelley v. Kraemer case even had these covenants on their own houses, so they recused themselves from the decision.
The FHA’s unconscionable cruelty resulted in a pattern of unconstitutional de jure discrimination against African American people, particularly in localities whose courts had little interest in the legal legitimacy of what they were doing. Regardless of whether they actually held racist views, the fact that even Supreme Court justices had restrictive covenants on their homes shows both how pervasive these covenants were and how deeply structural white supremacy is baked into structures of power in the United States.
Themes
