Inaccurate Factual Background

Both my personal education and teaching career include lessons on the Supreme Court’s distinction between de jure segregation and de facto segregation – it’s included in law school and mandated by many state standards in secondary education. Richard Rothstein’s important 2016 book, The Color of Law: A Forgotten History of How Our Government Segregated America, pokes a million holes in this flawed legal theory. He opens the Epilogue with this summary:

When Chief Justice Roberts wrote that if residential segregation “is a product not of state action but of private choices, it does not have constitutional implications,” he set forth a principle. But the principle supported his conclusion – that government remedies for segregation were impermissible – only because he assumed an inaccurate factual background: that residential segregation was mostly created by private choices.

Over the previous 215 pages Rothstein outlined the ways local and state governments actively created and enforced the policies that segregated communities throughout the U.S.. With examples of exclusionary zoning laws, FHA requirements for segregated communities, enforcement of restrictive covenants, tax-exempt status of churches and hospitals that enforced segregation, and even the licensing of real estate agents who claimed an “ethical obligation” to impose segregation, he paints the picture of a powerful state enforcing segregation far beyond the Jim Crow South. Tyler Cowen highlights some examples.

His proposed remedies begin not with Congress or the courts, but in the classroom. Much like James Loewen, Rothstein points to the misleading language of popular high school textbooks on residential segregation:

One of the most commonly used American History textbooks is The Americans: Reconstruction to the 21st Century. A thousand page volume, published by Holt McDougal, a division of the publishing giant Houghton Mifflin Harcourt, . . . The 2012 edition has this to say about residential segregation in the North: “African Americans found themselves forced into segregated neighborhoods.” That’s it. One passive voice sentence. No suggestion of who might have done the forcing on how it was implemented.

This is not a textbook I see in many classrooms these days, but the problem persists and I would not be surprised to find it in many others. I am curious to check how Eric Foner’s Give Me Liberty! addresses the topic.

May I suggest you skip the textbook and go straight to the sources? You can find articles and examples of restrictive covenants online. As I went to write this, I assumed examples of the Levittown restrictive covenants would be readily available online – I have used them in class for years. But my usual primary source destinations came up short. What a shame. I used to use a variation of this lesson from, but the link is now dead. Email me if you want the documents.

[Update – 11/14/18] On Friday, I checked out a copy of the textbook our APUSH class uses, Eric Foner’s Give Me Liberty!. We have an older addition, but, as expected, Foner addresses much of Rothstein’s argument:

The move to the suburbs also promoted Americanization, cutting residents off from urban ethnic communities and bringing them fully in the world of consumption. But if the suburbs offered a new site for the enjoyment of American freedom, they offered at least one familiar characteristic – rigid racial boundaries.

Suburbia has never been as uniform as either its celebrants or its critics claimed. There are upper-class suburbs, working-class suburbs, industrial suburbs, and “suburban” neighborhoods within city limits. But if the class uniformity of suburbia has been exaggerated, its racial uniformity was all too real. As late as the 1900s, nearly 90 percent of suburban whites lived in communities with non-white populations of less than 1 percent – the legal decisions by government, real-estate developers, banks, and residents.

During the postwar suburban boom, federal agencies continued to insure mortgages that barred resale to non-whites, thereby financing housing segregation. Even after the Supreme Court in 1948 declared such provisions legally unenforceable, banks and private developers barred non-whites from the suburbs and the government refused to subsidize their mortgages except in segregated enclaves. In 1960, blacks represented less than 3 percent of the population of Chicago’s suburbs. The vast new communities built by William Levitt refused to allow blacks, including army veterans, to rent or purchase homes. “If we sell one house to a Negro family,” Levitt explained, “then 90 or 95% of our white customers will not buy into the community.” After a lawsuit, Levitt finally agreed during the 1960s to sell homes to non-whites, but at a pace that can only be described as glacial. In 1990, his Long Island community, with a population of 53,000, included 127 black residents.

This is just one of a number of entries addressing segregation in the North and West found in Foner’s work. Much better than “African Americans found themselves forced into segregated neighborhoods,” but I still recommend the primary sources.

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