The Color Of (American) Law

The struggle of memory against forgetting

Milan Kundera’s aphorism that “the struggle of people against power is the struggle of memory against forgetting”, might well have been written for African-American’s. The history of US segregation is indicative of mainstream America’s inability to remember ‘uncomfortable’ past truths.

Discriminatory residential practices in the US that from the late 19th century have disproportionately affected African-American’s by ensuring their communities have been kept poor and segregated, is one of America’s most shameful hidden histories.

In his book, The Color of Law: A Forgotten History of How Our Government Segregated America, author Richard Rothstein meticulously deconstructs the prevailing racial ‘level playing field’ myth of US society. Rothstein shows that explicit racially driven integration prevention policies enacted through the Federal Housing Administration’s (FHA’s) Underwriting Manual in the mid-20th century, continues to be supported by the state and federal government throughout the US into the 21st century.

“Today, we’ve adopted the myth. We call it de facto segregation. We assume that the reason that this country is so segregated is because of individual choices and private bigotry. We’ve whitewashed the history as a rationalisation not to confront the fact that the residential segregation of this country is an unconstitutional civil rights violation”, says Rothstein.

The wealth and income divide

Arguably, the biggest contemporary consequence of the kind of structured policy decisions practiced in the mid 20th century are the huge wealth and income disparities between African-Americans and whites.

“The most important factor that creates the racial inequality that we have today in this country, is a legacy of these unconstitutional policies that the federal government followed” says Rothstein.

The principal issue underpinning the ethnic divide in the US upon which civil rights protests have historically been fought, is the accumulation of unearned wealth through the monopolization of land.

The relevance that land plays in augmenting the wealth divide is not lost on Rothstein although the author takes a more circumspect view:

“Landownership itself, is not necessarily the key to wealth in this country. It depends largely on the racial inheritance we have from our failure to deal with the legacies of slavery. It’s a combination of housing policies, as well as income policies. African-American incomes are 60 percent of white incomes on average.”

Rothstein continues:

“Federal policy in the New Deal during the Depression in the Roosevelt administration, excluded African-Americans not only from equal housing opportunities, but from equal employment opportunities. And the legacy of that continues as well. So it’s not only wealth, but wealth is a good part of it.”

Societal impacts

Segregation has also had devastating societal impacts which can be seen, for example, in the educational attainment disparity between blacks and whites. As a result of the historical legacy of the policies of ethnic division, African-American’s are more likely to be concentrated among lower income single neighbourhoods where they have less access to healthy food, healthy air and medical care.

These factors, as well as the lack of job opportunities, contribute to low achievement and lower life expectancy among the African-American demographic. The issues have been compounded by the onset of high interest rates, foreclosures and the easy access to credit and mortgage loans facilitated by exploitative marketing techniques and deceptive lending practices.

Rothstein is adamant that the solution to unifying neighbourhoods is not a mystery:

“Policy experts know them. Housing experts know them. Think tanks generate papers explaining them”, says the author.

The missing link?

So what, in Rothstein’s view, is missing?:

“A new civil rights movement like we had in the 20th century that’s going to, in the words of our late civil rights leader and Congressman John Lewis, make good trouble to make it untenable to maintain these segregated patterns.”

Rothstein adds:

“Right now, for example, we should have constitutionally required an affirmative action programme in housing. The federal government should be subsidizing the purchase of housing by middle class, working class, African-American families in suburbs that are now unaffordable to them, but would have been affordable to them when they were created. That’s a narrowly targeted remedy for a very specific constitutional violation.”

According to Rothstein, the problem is not the ability to develop a programme but that there is no political support for it irrespective of which party is in power.

One of the biggest hurdles to overcome is nimbyism. But Rothstein is hopeful, rather than overly confident, that a new civil rights movement will emerge informed by a more accurate understanding of the historical legacies of US racial segregation to begin to initiate the changes necessary.