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Interview: Richard Rothstein on his important, new book ‘The Color of Law’

(AP Photo/Julio Cortez)

Richard Rothstein’s new book, “The Color of Law,” is getting a great deal of well-deserved attention. As I mentioned on PostEverything the other day, it is a meticulously drawn “history of explicit racial residential segregation in America, the vestiges of which remain crystal clear today.” Richard is an old friend of mine, and while I’m very glad to hear he’s swamped doing interviews, he was kind enough to take a moment to answer some questions about the book.

Jared Bernstein: One of your main themes is that today’s residential segregation is the result of years of “unhidden public policies.” Similarly, you distinguish between a de facto system of racial segregation and a de jure system. Why is this distinction so important?

Richard Rothstein: The Supreme Court has established a constitutional rule that “private” actions (de facto) do not violate the 14th Amendment, and therefore only indirect remedies are permissible, but government action (de jure) violates the Fifth and 14th Amendments and requires constitutional and explicit remediation.

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J.B.: That begs this question. A typical sentence from an early chapter reads that “one of the federal government’s specifications for mortgage insurance … was an openly stated prohibition on sales to African Americans.” Even in the 1950s, surely that was unconstitutional. In much of the history you recount, the Constitution is MIA. Is that just a function of discrimination and prejudice, or is there more to it?

R.R.: It was unconstitutional since 1866. Something doesn’t become unconstitutional only because the Supreme Court belatedly recognizes this. Nobody (hardly) would contend that school segregation was constitutional before 1954. The federal government ignored the requirements of the Civil War amendments from their adoption until the 1960s.

J.B.: What do you mean when you say the belief in de facto segregation is “too comfortable a notion?”

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R.R.: If segregation happened by accident, then it is convenient to believe it only can be remedied indirectly, or by accident. But if we understand it is a government creation, then we are forced to confront the imperative for remedial action. As I wrote, letting bygones be bygones is not a policy worthy of a constitutional democracy.

J.B.: The research you’ve done for this book strikes me as meticulous. Have you gotten much pushback? For example, I suspect some critics don’t deny your evidence but claim such practices are long gone.

R.R.: Yes, such practices are long gone. But the effects remain. If we desegregate buses, you can sit anywhere on the bus the same day. But if we were to desegregate housing, African Americans could not pick up and move to all-white suburbs the next day. For one thing, they are now unaffordable. They were affordable to African Americans when they were first built, but are so no longer. African American incomes are about, on average, 60 percent of white incomes, but African American wealth is, on average, about seven percent of white wealth. That enormous difference is almost entirely attributable to federal unconstitutional housing policy of the mid-20th century and it results in the enduring effects of de jure segregation without explicit remedy.

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J.B.: Among the fixes you consider are: a) increasing the value of Section 8 rental vouchers so those who hold them could afford to live in better, more integrated neighborhoods, and b) making housing-related tax breaks, like the mortgage interest deduction, conditional on efforts to desegregate housing. While such ideas won’t be coming out of the Trump administration, do you think the Democratic candidates should make them part of the platform?

R.R.: No, they would not have come out of a Clinton administration, either. Until there is a consensus around the reality that we have de jure residential segregation, I see little possibility of effective remedies. The purpose of the book is to assist in development of this consensus. Ta-Nehisi Coates, Nikole Hannah-Jones and others have also been contributing. As for the Section 8 reform you mention, the Obama Administration adopted a rule to this effect, and the Trump Administration has instructed local housing agencies not to enforce it. Moreover, Section 8 is for poor people. The book is about the segregation of all African Americans, the vast majority of whom are not poor (although they have a much higher poverty rate than whites).