Housing Segregation and Constitutional Law: A brief introduction
“The problem of the twentieth century is the problem of the color line.” - W.E.B. Du Bois
In the case of housing policy, the U.S. government literally drew a color line. Explicit actions taken at all levels of government created enduring racial housing segregation in this country. Persistent housing segregation throughout the United States, including so called progressive beacons such as California, is commonly blamed as being “de facto” or by custom, as opposed to the explicit segregation laws of the Jim Crow South. However, as Richard Rothstein writes in his seminal text on housing segregation, The Color of Law, “Without our government’s purposeful imposition of racial segregation, the other causes--private prejudice, white flight, real estate steering, bank redlining, income differences, and self-segregation--still would have existed but with far less opportunity for expressions. Segregation by intentional government action is not de facto. Rather, it is what courts call de jure: segregation by law and public policy.” He then argues that housing segregation is a “badge of slavery that the Constitution mandates us to remove.”6 The book, which will be a grounding text of this unit, documents the overwhelming evidence of government interventions used to produce and reproduce housing segregation in the United States over the course of the 20th century.
Rothstein outlines that the actions taken by the government in regards to housing policy were in direct violation of the Fifth, Thirteenth and Fourteenth amendments. While the Fifth and Fourteenth Amendments are on face value more obviously related to the issue, Rothstein points to the importance of understanding the entirety of the Thirteenth Amendment. Section 2 of the Thirteenth Amendment gives Congress the power to enforce the more widely known Section 1, which called for the abolition of slavery. According to Rothstein, the Civil Rights Act of 1866 utilized this role of Congress by outlawing any actions that “perpetuated the characteristics of slavery… that made African Americans second-class citizens, such as racial discrimination in housing.”7 Unfortunately in 1883, the Supreme Court dismissed this idea and ushered in decades of state sanctioned and manufactured housing segregation. Furthermore, in what is often referred to as the “Civil Rights Cases” of 1883, the Supreme Court ruled on five cases collectively, declaring that prohibiting discrimination in public places was unconstitutional, effectively inviting Jim Crow to take root. A few years later in 1896, the concept of “separate but equal” was then infamously cemented into law by the landmark case Plessy v. Ferguson. For nearly a century, the Supreme Court created the legal environment for segregation to embed itself into every aspect of society, which is why I appreciate Rothstein’s rejection of the “widespread view that an action is not unconstitutional until the Supreme Court says so.”8 While Brown v. Board of Education reversed Plessy in 1954, it wasn’t until the 1968 case Jones v. Mayer that the Supreme Court finally reversed course with housing, declaring that, as Rothstein states, “housing discrimination was a residue of slave status that the Thirteenth Amendment empowered Congress to eliminate.”9
Housing Segregation and the New Deal
While President Franklin D. Roosevelt is often looked at as a hero who supported and encouraged housing development and home ownership during a fraught time in U.S. history, his support clearly followed a color line. The unit will unpack for students the direct role government policy played in promoting housing segregation, beginning with the federal government. We will examine how FDR, through New Deal programs and policies, actively promoted housing segregation. New Deal programs such as the Federal Housing Administration (FHA) and the Home Owners’ Loan Corporation (HOLC) refused mortgages to African Americans, and even thwarted white home ownership in neighborhoods where African Americans were residing. Rothstein explains that in many cases, “the government was not following preexisting racial patterns; it was imposing segregation where it hadn’t previously taken root.”10 Again, not de facto, but de jure.
Even public housing, first created as part of the New Deal, was designed to take race into account, a legacy that can still seen today. Public housing was built on a segregated basis. As the Public Works Administration stepped in to deal with the housing crisis, they promoted segregation even more. They created a “neighborhood composition rule” in which any new federal housing project had to reflect the racial composition of the neighborhood. While this would be a concern in and of itself, the PWA would actually take previously integrated neighborhoods and label them as either “black” or “white” and then build public housing respective of those designations, causing the neighborhoods to segregate. After providing many examples of how these New Deal programs created housing segregation from Birmingham to Detroit, from New York to Austin, Rothstein writes, “It would be going too far to suggest that cities like these would have evolved into integrated metropolises were it not for New Deal public housing. But it is also the case that the federal government’s housing rules pushed these cities into a more rigid segregation than otherwise would have existed.”11
There is perhaps nowhere better to turn to, to understand the federal government’s stronghand in creating housing segregation, than the HOLC’s “residential security maps” and the FHA’s Underwriting Handbook. In the maps, cities and areas were color-coded: green was labeled as “Best,” blue “Still Desirable,” yellow “Definitely Declining” and red was defined as “Hazardous,” hence the term “redlining.” In the maps, red indicated “infiltration” of either “foreign” or “negro” influence. The HOLC worked with mortgage lenders, developers and real estate appraisers to assess the supposed risk and “credit worthiness” of neighborhoods across 250 U.S. cities.12 The areas marked as red, or redlined, were not eligible for FHA backing. These HOLC maps can be explored in detail through an incredible resource: the website Mapping Inequality. The University of Richmond has compiled over 150 of these HOLC maps and created an interactive database for users to explore them. The introduction to the website states, “more than a half-century of research has shown housing to be for the twentieth century what slavery was to the antebellum period, namely the broad foundation of both American prosperity and racial inequality.”13 This relates back to the previous discussion of the Thirteenth Amendment and the implications of U.S. housing policy codifying a racial caste system in this country. Students should realize how deeply rooted white supremacy was in U.S law, especially as it relates to housing.
Relevant Classroom Activity 2
Guiding Question: What is the legacy of redlining in the United States?
After a brief review of the FHA (my students already have some prior knowledge about the New Deal and the FHA, again from their history/civics class) and an introduction to redlining (provide students with a definition and the explanation of the color-coding), students will have the opportunity to explore the HOLC maps on the abovementioned website Mapping Inequality. Students should search their own city and then have some time to make and write down their observations, inferences and reactions (provide a graphic organizer for them to do so).
Next, students will log on to the New York Times’ interactive “Mapping the 2010 U.S. Census” site14. Students should choose the “Racial/Ethnic Distribution 2010” map filter and zoom into the same city which they explored with the HOLC maps. Again, students should write down their observations, inferences and reactions on the graphic organizer.
Comparing the two maps (HOLC and 2010 census), you can see that zones that were red and yellow under the HOLC’s maps, currently house predominantly residents of color, while green zones, viewed by the HOLC as “desirable” back in the New Deal era, currently house predominantly white residents, thus illustrating the long lasting impact of these government policies. Give the students an opportunity to discuss their findings and share insights and reactions first as a pair-share and then as a whole group.
Housing Segregation vis-a-vis the Suburbs
The FHA was clear in its racial intent. It discouraged banks from making loans in what it deemed undesirable neighborhoods in urban areas, favoring instead to underwrite mortgages in newly built suburbs and areas that were easily segregated thanks to the built environment. It stated that “[n]atural or artificially established barriers will prove effective in protecting a neighborhood and the locations within it from adverse influences,...includ[ing] prevention of the infiltration of...lower class occupancy, and inharmonious racial groups.”15 Highways, in particular, created such barriers. While this unit will not get into the policy of “urban renewal” in depth, it does play a role in the story and could be a useful and/or interesting extension to the unit.
With highways came suburbs, and the FHA (along with the VA) continued its segregating mission with their advent. Rothstein writes that, “the FHA had its biggest impact on segregation, not in its discriminatory evaluations of individual mortgage applicants, but in its financing of entire subdivisions, in many cases entire suburbs, as racially exclusive white enclaves.” Both the FHA and the VA allowed for the mass production of suburbs on the condition that they be entirely white. The FHA would even authorize mortgages for buyers for whole areas based on pre-construction plans. In short, an entire suburb could be automatically insured, reducing the need for appraisers to use the aforementioned Underwriting Manual and residential security maps to inspect individual properties, if of course the new development was to be all white.16
In the documentary Race: The Power of an Illusion, Bernice and Eugene Burnett, an African American couple, recount their experience trying to buy a house in the newly built Levittown development on Long Island. Eugene was a returning GI from World War II, hoping like many other African American GIs that they would come home to a newfound equality and a chance at the “American Dream.” The narrator states that, “for many, that dream was a new home for little money down and some of the easiest credit terms in history.” That dream, however, was predicated on one’s race. The Burnetts explain how a real estate seller showed them around one of the Levittown houses, however, when they inquired what next steps to purchase would be, apparently said, “it’s not me, but the owners of this development have not as yet decided to sell these homes to negros.” Bernice remembers thinking it was unreal, seeing this amazing life being presented and yet, she says, “for them to tell me that because of the color of my skin I can’t be a part of it?”17
The Role of the Real Estate Industry: Restrictive Covenants, Blockbusting and Contract Sales
While the government was the driving force behind residential segregation, of course real estate agents weren’t blameless. Private industry and individuals played a role in perpetuating racial housing segregation, at the aiding and abetting of the U.S. government. Individuals, along with the housing and real estate industries, colluded with all levels of government to enshrine housing segregation into the landscape of the nation. In 1973, The U.S Commission on Civil Rights explained that “Government and Private industry came together to create a system of residential segregation.”18
The use of restrictive covenants was rampant in the early-mid decades of the 20th century. Restrictive covenants were clauses written into the deeds of houses listing obligations that the new homeowner would have to agree to. They could include anything as mundane as what type of tree one would be allowed to plant in the front yard to a blatantly racist promise to not rent or sell to a person of color. These racial covenants would take root in an entire neighborhood with neighbors working to persuade one another to agree to such conditions. Developers would even mandate that would-be buyers must agree to join a community association as a condition to purchase a home in a new development, and then make the bylaws of that community association include a whites-only clause.19 Furthermore, the government championed and protected these covenants. Rothstein explains that courts even ordered African Americans out of homes they had already purchased. Judges would consistently rule that the racial covenants weren’t unconstitutional because they were private agreements, not government action.20 That said, local governments promoted them and the federal government upheld them, and so they were indeed state sanctioned. This is a good opportunity for students to, again, reflect upon and interrogate the supposed neutrality of the law.
Realtors played a big role in the practice as well. Daniel Martinez HoSang looks at California as a case study in his book Racial Propositions. He explains that prior to restrictive covenants, black homeownership in California was actually not uncommon. In 1910 the rate was 38 percent. However, in the 1920s the use of racial covenants began to catch on, in large part spawned on by realtors who would push such agreements. HoSang makes the point that realtors would have to actively promote their use by going door-to-door “precisely because there were white homeowners willing and interested in selling and renting their homes to nonwhites.”21 Racial housing segregation was thus not foreordained, but calculated. Realtors also participated in blockbusting, in which they would persuade white homeowners to sell their properties quickly and cheaply, stoking fears that the neighborhood was going to soon be “overtaken” by people of color. Speculators would then be able to snatch up whole residential areas cheaply, and once the whites were out, rent or sell the properties to blacks at inflated rates. They would even use such tactics as hiring African American women to push baby carriages around or African American men to drive cars through a neighborhood with loud radios playing in order to dissuade whites from remaining.22
Blockbusting led both to white flight and to the dangerous and pervasive contract buyer agreements used to take advantage of black families. The way that contract sales worked was that firms would sell their newly acquired properties (thanks in part to blockbusting) to African Americans at inflated prices. Because African Americans were not eligible for FHA backed mortgages as discussed previously, they would have to buy the homes on installment plans called “contract sales.” Ownership would be transferred after a period of fifteen to twenty years. However, if a payment was late, the speculator would evict the buyer. It was easy to be late on payments because of the inflated prices, and so the vicious cycle continued.23 In his case for reparations, Ta-Nehisi Coates explains that contract sales were “a predatory agreement that combined all the responsibilities of homeownership with all the disadvantages of renting—while offering the benefits of neither.”24
Relevant Classroom Activities 3
Guiding Question: How did real estate practices contribute to housing segregation in the United States during the 20th century?
As an opener, students will look at two primary source documents:
- A recently uncovered Woodie Guthrie song that tells the story of Beach Haven, a Coney Island apartment building that Fred Trump (Donald Trump’s father) owned and in which Guthrie was a tenant in the early 1950s. Fred Trump both adhered to racist federal housing guidelines and was later investigated in the 1970s for discriminating against black tenants. (For more background on the song I suggest reading Justin Wm. Moyer’s piece in the Washington Post on the subject.25
- You can view examples of restrictive racial covenants as part of the Seattle Civil Rights and Labor History Project through the University of Washington.26 The project has collected dozens of these primary sources, which list city, neighborhood and corresponding race restriction. I have included a small handful to demonstrate, however, you can allow students to explore the site itself if you prefer. The database includes listings of covenants that restrict based on race, national origin and religion, additionally showing that housing segregation went beyond a simple black-white dichotomy.
For each source, students should write down their major takeaways and inferences (ask them to infer what type of source/document they are looking at, main idea, etc.) and underline one line that stands out in particular to them and explain why. Then, share-out as a class.
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I suppose
Old Man Trump knows
Just how much
Racial Hate
he stirred up
In the bloodpot of human hearts
When he drawed
That color line
Here at his
Eighteen hundred family project
Beach Haven ain’t my home!
I just cain’t pay this rent!
My money’s down the drain!
And my soul is badly bent!
Beach Haven looks like heaven
Where no black ones come to roam!
No, no, no! Old Man Trump!
Old Beach Haven ain’t my home!
- Woodie Guthrie
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No person other than one of the Caucasian race shall reside on any of said described premises excepting that a domestic servant in the actual employ of an occupant may reside in the home of his master.
No residence property shall at any time, directly or indirectly, be sold, conveyed, rented or leased in whole of in part to any person or persons not of the white or Caucasian race.
no part of the lands owned by him or described following their signatures of this instrument shall ever be used or occupied by or sold, conveyed, leased, rented, or given to negroes, or any person or person of the negro blood.
No part of the property hereby platted, shall be used for trade, manufacture or business purposes of any kind, but shall be used for residential purposes only by white persons, except that servants, not of the white race but actually employed by white occupant, may reside on said premises. |
After some direct instruction, students will next watch two video clips to gain a deeper understanding of this section’s content as well as the actual lived experiences of the people of color who were affected by these policies.
- The first video (previously referenced) is from the series Race: The Power of an Illusion. The first ten minutes of Episode Three do a good job of going over the history of the FHA mortgage program, especially as advertised to returning GIs after WWII, the development of new suburban communities and a clear overview of redlining.
- The second video is called the “The Story of the Contract Buyers League” and is embedded as part of Ta-Nehisi Coates’ aforementioned piece in the Atlantic, “The Case for Reparations” (a piece worth the read, which could also be potentially excerpted for students). It follows three, now elderly, people of color from Chicago’s North Lawndale neighborhood who were affected by the predatory contract sales system. They, along with others, joined together to organize against the unjust practice. Through a long and heated payment strike, they were able to renegotiate and successfully gain ownership of their homes. Though not all who were involved with the Contract Buyers League were as lucky, the story shows an important example of resistance and agency.
*Note: In this unit, it is easy to feel weighed down by the injustice being presented. It is also possible to fall into the trap of presenting people of color simply as passive victims. It is thus really important to highlight ways in which folks of color resisted and pushed back against the institutional racism embedded into this country. You can point out how resistance took many forms: from indvidual opposition to group organization to direct legal action. As a white teacher teaching predominantly students of color, that is something that I haven’t always done a good enough job with and am actively trying to reflect on ways to make my curriculum more balanced in this particular way.
Students can take notes on a story web diagram as they watch the video clips. I have also extracted the following two quotes for students to analyze. Ask students to summarize the main idea of each quote and explain how the quotes connect to each other and the underlying theme of the unit. In the subsequent discussion, make sure to highlight that these events were not just the results of a few bad actors but of the underlying law/government power itself.
- “I can understand an individual depending upon his environment or his family or whatever being racist, but for your country to sanction it, give him tools to do that, there’s something definitely wrong there.” -Bernice Burnett (Race: The Power of an Illusion)
“How could we be charged like that? If there was a law, then how would the law let them do this, but they said it was their property, that they had a choice to sell it at whatever price they wanted to and if you bought it then that was on you.” -Ethel Weatherspoon (Contract Buyers League)
The Legacy of Housing Segregation: Wealth Inequality
The legacy of housing segregation has led to a legacy of deep wealth inequality in this country based on race. One of the primary ways one builds equity and wealth is through homeownership, the very thing African Americans were systematically denied. The ensuing results have been profound. Diane Kuthy writes in “Redlining and Greenlining” that one “might expect that inequities started by overt discrimination in the past would become less important over time because of improved race relations. However, precisely the opposite is true: assets that appreciate in value and are transferred over generations increase in value over time.”27 The notion of intergenerational wealth is key. Rothstein explains that “neighborhood poverty is…more multigenerational for African-Americans and more episodic for whites.”28
Statistically, young African Americans (defined as ages 13-28) are ten times as likely to live in a poor neighborhood as compared to whites (66% vs 6%).29 Median white household wealth is about $134,000, compared to median black household wealth which is around a mere $11,000. Whites are more able to borrow from their home equity to endure hard times, something which blacks are often unable to do because for generations the government prevented them from buying homes, and thus the ability to borrow against them.30 The financial crisis of the early 2000s only compounded the problem. Blacks used to have 1/10th the net worth of whites, but now that number is 1/20th.31 Eduardo Bonilla-Silva further explains how discrimination in housing still persists despite civil rights era legislation against it: “Blacks and Latinos experience discrimination in forms such as steering by realtors, receiving a disproportional number of subprime loans net of their credit worthiness, and even being given differential information about the availability of housing units.”32 Government-created/promoted housing segregation has had long-term dire effects. Bonilla-Silva argues that “racial inequality is still being produced in a systematic way, but that the dominant practices that produce it are no longer overt, seem almost invisible, and are seemingly nonracial.”33 Just as colorblindness language was written into the Constitution, so it persists today, working to maintain white supremacy.
Relevant Classroom Activity 4
Guiding Question: How has housing segregation affected wealth inequality in the United States?
Compile a list of statistics showing modern day wealth inequality in the United States as it relates to race. You can use some of the data I have compiled above. Additionally, infographics can be useful, especially for visual learners. Howard University’s Center on Race and Wealth has put together an extensive compilation of relevant infographics that could be helpful to draw from.34
Have students individually jot down which statistic stands out to them the most and why, as well as their reactions in general to the data. Then in pairs or small groups have students make an inference (based on their prior knowledge from the unit so far) about what they think accounts for the disparity they observe in the infographics/statistics. Each pair/group should write one statement summarizing their conclusion, which they will then share with the whole class.
An additional useful source to use with students for this section is a short 5 minute clip (around the 20 minute mark) from Race: the Power of Illusion, episode 3, which clearly discusses the impact of the government’s segregationist housing policies on generational wealth.
Housing Segregation and the Supreme Court
To place this issue squarely in the Constitutional law realm, students can study five relevant cases from the twentieth century:
Buchanan v. Warley (1917)- In this case, the Supreme Court overturned a racial zoning ordinance in Louisville, Kentucky, involving an African American who attempted to buy a house on an already integrated block. With an albeit problematic interpretation of the 14th Amendment, not based on protecting African Americans’ rights but rather “freedom of contract,” the Court nonetheless declared racial zoning ordinances to be unconstitutional, claiming they obstructed a property owner’s right to sell to whomever they wanted. Local governments, however, found many loopholes and ways around the Buchanan decision by rewriting their ordinances to be race-neutral on face value, even though having clear racial intent35, once again showing the problematic nature of colorblindness in the law. This ushered in an era of zoning practices which claimed to be economic in nature, but were often code for race. For example, zoning ordinances would classify neighborhoods as being for only single-family homes, which would barr lower-income residents. Rothstein writes that even though this would affect lower-income families of all races, “there was...enough racial intent behind exclusionary zoning that it is integral to the story of de jure segregation.”36 In another example, if an African American family did move into an area, zoning would be changed from “residential” to “industrial.” As white flight took hold, then predominantly black neighborhoods would be stuck being zoned as industrial, which would then allow things such as industrial pollution, nightclubs, liquor stores, etc. to take root, none of which were permitted in residential zoned areas intended for whites.37 Buchanan also helped lead to the use of the aforementioned racial covenants, because they, at least on face value, relied on private discrimination.
Corrigan v. Buckley (1926)- The Supreme Court upheld this interpretation when it ruled in this case that restrictive covenants were constitutional because they were private and voluntary, not state action. Rothstein explains that “with this decision to rely upon, successive presidential administrations embraced covenants as a means of segregating the nation.”38 Hoover, for example, promoted restrictive covenants, while FDR, taking things a step further, codified racial restrictions into actual federal programs and policy, as previously demonstrated.
Shelley v. Kraemer (1948)- The Supreme Court reversed course in 1948 with its decision in Shelley v. Kraemer. It overturned its decision in Corrigan, claiming that restrictive covenants did indeed violate the Fourteenth Amendment. While reaffirming that private individuals could discriminate, it explained that such private discrimination relied on state courts to enforce it. As noted previously, courts would force the eviction of black families based on the covenants, and thus the government was obviously participating in their discrimination. The federal government reacted to the Supreme Court’s decision with lackluster enforcement. Particular obstinance came from the FHA. They used delay and evasion tactics for years.
Nearly twenty years later the Supreme Court made two different decisions to try to remedy the situation.
Reitman v. Mulkey (1967)- In this case, the court ruled that California’s Proposition 14 violated the Fourteenth Amendment. Proposition 14 had been an attack on the Rumford Fair Housing Act in California, which had aimed to deal with the deeply embedded residential segregation of the area. The California Real Estate Association crafted the proposition in an attempt to exempt homeowners and the real estate industry from most antidiscrimination legislation. HoSang writes that “the Realtors’ public campaign asserted that ‘property rights’ could not be sacrificed to the onslaught of ‘forced housing.’”39 The Supreme Court saw through this, nullifying Proposition 14 and restoring the Rumford Act. However, HoSang explains that damage was still done. For example, the setback to civil rights in California caused by Proposition 14 is considered one of the factors that led to the Watts riots the following year.
Jones v. Alfred H. Mayer Co. (1968)- Lastly, in this case, the Supreme Court yet again tried to chip away at housing discrimination. It ruled that a St. Louis real estate company could not refuse to sell a home to an African American man on the account of his race. The court referred back to Section 2 of the Thirteenth Amendment giving Congress the power to eliminate any racial barriers that represented "badges and incidents of slavery."40
Relevant Classroom Activities 5
Guiding Question: How did the Supreme Court weigh in on housing segregation during the 20th Century and to what effect?
In my Con Law class, students regularly complete Supreme Court Case studies using some variation of the following template.
| Case Name: |
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| Year Decided: |
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| Facts of the Case: |
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| Constitutional Question Asked of the Court: |
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| Decision: (Who did the majority rule in favor of?) |
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| Court's Reasoning: |
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| What precedent did this decision create? (What impact do you think this case will have on the future?) |
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| Do you agree or disagree with the Court's decision? Explain. |
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This template can be used for the cases outlined above. A good go-to resource for Supreme Court case summaries is Oyez.org. You can make this case study activity a jigsaw, with each initial group responsible for one of the five cases.
Another activity is, after having studying the cases (you can alternatively use my summaries), have students complete the following classification tool. I have completed the first row as an example.
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Upheld Housing Segregation |
Opposed Housing Segregation |
Loophole |
| Buchanan v. Warley (1917) |
x |
Racial zoning declared unconstitutional |
Local governments would rewrite zoning ordinances to appear to be economic/ race-neutral, while actually serving an exclusionary racial purpose... |
| Corrigan v. Buckley (1926) |
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| Shelley v. Kraemer (1948) |
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Reitman v. Mulkey (1967)
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| Jones v. Alfred H. Mayer Co. (1968) |
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