Richard Rothstein
In 1866, Congress passed a Civil Rights Act outlawing burdens on freed slaves not also imposed on free whites, reasoning that racial discrimination—both public and private—undermined effective emancipation. However, subsequent Supreme Court jurisprudence did not honor or uphold this law and its progeny. Had it done so, the hard-fought promise of equality would not have been broken, the America we know today would not be so racially segregated, and the “badges and incidents” of slavery could have been timely eliminated. The racial segregation of America’s neighborhoods is not, as was long thought, merely the result of private activities such as unethical mortgage lending and the use of racially restrictive covenants.
As detailed in The Color of Law, throughout the twentieth century segregation was intentionally imposed by national, state, and local governments. De facto segregation, including the interrelated realities of segregated neighborhoods and segregated schools, was exposed to be nothing more than a myth. Private bigotry would have been inoperative but for government willingness to ignore its legal and constitutional obligations and instead enact policies and programs of racial exclusion. De facto segregation is not only a myth, it is a dangerous one. If our country’s racial separation is seen as accidental, there exists no legal or constitutional requirement to remediate persisting segregation.
The remedies for manifestations of racial segregation, such as the denial of equal education addressed in Brown v. Board of Education, should not only be forward-looking to prevent ongoing segregation, they should appropriately be remedial as well, to undo the ongoing harms of past discrimination. There does not now exist the political will to pursue national remedies proportional to segregation’s multi-generational impacts. While neighborhood segregation may have been largely created by the federal government, its maintenance, even exacerbation, results from local policies and programs. Activist community groups can develop the power to effect remedies.
As outlined in Just Action, these groups can challenge local practices that reinforce segregation, each contributing a small but accumulating step to combating neighborhood racial inequality. Banks, realtors, developers, and government agencies that imposed segregation can be pressured to take active remedial roles. Similarly, local groups can seek to improve the lackluster enforcement of the Fair Housing Act. Individual and organizational support of local fair housing centers—both by raising funds and recruiting volunteer testers—is necessary for these centers to continue critically important paired testing programs in their communities.
These measures, coupled with mobilizing support for reforms in tax assessment policy, unconstitutional zoning, housing sales and rentals, and many other local public and private practices that have a discriminatory impact, are within the capacity of community groups and local activist organizations. All too often, civil rights advocates focus their energy on the federal level, proposing well-crafted, but futile reforms that have minimal chance of enactment and implementation. Instead, the most productive area in which to begin to direct energy is local, focusing on redressing segregation—and the badges and incidents of slavery—in our own communities.