The Unfinished Business of the Thirteenth Amendment: Revisiting “The Color of Law: A Forgotten History of How Our Government Segregated America”
Richard Rothstein
Portions of this post have appeared previously in other publications.
June 19, the anniversary of slavery’s abolition in Texas in 1865, is widely celebrated to commemorate emancipation throughout the United States, formalized by the adoption of the Thirteenth Amendment in December of that year. But slavery wasn’t quite abolished.
The amendment empowered Congress to enforce abolition by “appropriate” legislation and in 1866, it adopted (over President Andrew Johnson’s veto) a “Civil Rights Act” that prohibited not just legal bondage but any “badge of servitude,” including limitations on the right of former slaves to buy, sell, or rent property. In other words, the Thirteenth Amendment banned second-class citizenship of any kind. It declared there was no middle ground between slavery and full citizenship.
In 1883, however, the Supreme Court struck down this expansive prohibition of the so-called “badges and incidents” of slavery, ruling that only legal subjugation, not private discrimination, could be included. In 1896, the Court followed with another decision permitting “separate but equal” public policies. As I describe in my recent book, The Color of Law, A Forgotten History of How Our Government Segregated America, for the next century these Supreme Court decisions gave cover not only to private discrimination but to official segregation and to public acts masquerading as private ones.
The result was a caste system in which African Americans were not afforded the full rights of citizenship that the Thirteenth Amendment required. We live with these effects today. There are many, but in this post I’ll focus only on its effects on educational opportunities.
The achievement gap between African American and white students has barely budged over the last quarter century. On the standardized federal test that measures student achievement, the National Assessment of Educational Progress (NAEP), the fourth grade mathematics gap was 32 scale score points in 1990 and 24 in 2015, a gain of only 0.2 standard deviations. Gains were no better in eighth grade math, or in reading at either grade. In large cities where NAEP has done special data collection since 2003, the racial gap has also remained stagnant.
How can we explain so little progress after a quarter century of accountability, curricular, and organizational reforms in K-12 education? We can’t be sure, but it may be that even if these reforms were well-designed, they were undermined (or perhaps their positive results offset) by a deterioration in social and economic conditions with which African American children come to school, relative to those experienced by white children.
In a recent report, Leila Morsy and I documented one of several such conditions — young African American men’s excessive and discriminatory incarceration that has a devastating effect on their children’s cognitive and non-cognitive outcomes. African Americans are no more likely to use or sell drugs than whites, but are more likely to be arrested, prosecuted and incarcerated for such offenses. For more serious crimes involving violence, “tough on crime” policies have generated a 50 percent increase in prison sentences since the early 1990s.
As a result, one in ten African American schoolchildren have a parent in prison. One in four have a parent who is or has been imprisoned, six times the rate for white children. The African American rate is even greater in urban areas of concentrated poverty.
School segregation persists because neighborhoods are segregated.
Children suffering from the stress of parental incarceration are more likely to be homeless and lack adequate health care than others who are similar in every measurable demographic and socioeconomic characteristic. Their grade point averages decline. They are 33 percent more likely to have speech or language problems, 25 percent more likely to drop out of school, 48 percent more likely to have ADHD and 43 percent more likely to have behavioral problems. NAEP does not report scores by parental incarceration, but it is not hard to imagine what such a report would show.
How can a teacher succeed when large numbers of her students have such a greater likelihood of experiencing these challenges? Of course, better teachers can make a difference, but it is implausible to think that they can make enough of a difference to overcome the epidemic of mass incarceration of African American fathers (and, increasingly, mothers).
If children of the incarcerated were rare, teachers could devote special attention to them. But where they are concentrated in segregated schools, along with children who are otherwise deprived — whether because of poor parental education, poor health, exposure to violence, or economic insecurity — even the best teachers cannot devote special attention to every child. And in the quarter century during which the NAEP achievement gap stagnated, school segregation also stagnated, or worsened.
School segregation persists because neighborhoods are segregated. Neighborhood segregation is itself a cause of the parental incarceration epidemic: the frequently confrontational relationship between police and young minority men thrives in neighborhoods where low-income, inadequately employed, and hopeless young men are consolidated.
In 2007, the Supreme Court prohibited school districts in Louisville and Seattle from accounting for a student’s race as part of modest school integration plans. Each district permitted students to choose their schools, but if remaining seats in a school were limited, the district admitted students who would contribute to the school’s racial balance. In other words, black students would get preference for admission to mostly white schools, and vice-versa.
Residential segregation was purposely, self-consciously, explicitly created and enforced by federal, state, and local governments throughout the 20th century, with policies so powerful that their effects persist to the present.
Chief Justice John Roberts wrote the deciding opinion, arguing that racially homogenous housing arrangements in these cities had led to racially homogenous student bodies in neighborhood schools. Following Supreme Court jurisprudence that was first established in the 1883 case limiting the definition of “badges and incidents” of slavery, Roberts acknowledged that racially separate neighborhoods might result from “societal discrimination.” However, he said that employing a racially conscious remedy for discrimination “not traceable to [government’s] own actions” would not be constitutionally acceptable. The distinction between segregation by state action [de jure segregation] and racial imbalance caused by other factors [de facto segregation] has been central to our jurisprudence. . . . Where [racial imbalance] is a product not of state action but of private choices, it does not have constitutional implications.” Because schools in Louisville and Seattle were located in neighborhoods that had been segregated by private choices, he concluded, school districts should be prohibited from taking racially conscious action to integrate.
What was surprising about this case was that the dissenting liberal opinion, authored by Justice Stephen Breyer, accepted the Roberts view that residential segregation in Louisville and Seattle was de facto, not de jure. He dissented because he believed that school districts experiencing de facto segregation should be permitted voluntarily to desegregate, although they could not be compelled to do so.
But de facto segregation is a myth, a historical falsehood, perpetuated by the Supreme Court and now embraced by policymakers and public opinion across the political spectrum, liberal and conservative alike. In truth, residential segregation was purposely, self-consciously, explicitly created and enforced by federal, state, and local governments throughout the 20th century, with policies so powerful that their effects persist to the present. Our metropolitan landscapes are systematically segregated because government insisted they be designed that way.
My purpose in The Color of Law is to acquaint readers with a forgotten history that was once well known. I aim to help support a national conversation about our persistent racial inequality, a conversation that seems to flare whenever racial violence erupts, then ebb when memories of the violence fade. A more sophisticated understanding, by policymakers and the informed public, of how we established a de jure system of residential segregation, can support informed discussion.
Few realize, for example, that from the inception of the New Deal and on for two decades and more, public housing was designed for lower middle-class white families from which African Americans were excluded, not only in the South, but nationwide; that the rapid suburbanization of America in the postwar era was accomplished by federal government guarantees of bank loans to mass production builders, with an explicit condition that no suburban homes be sold to African Americans; that the Internal Revenue Service granted unconstitutional tax exemptions to churches, universities and other non-profit institutions that openly drove African Americans out of their environs; that state governments everywhere licensed real estate brokers whose national “code of ethics” prohibited them from selling homes in white neighborhoods to African Americans; and that in hundreds of cases nationwide, when African Americans did manage to purchase homes in white neighborhoods, state courts ordered their eviction; and more.
We cannot begin to think about remedies for de jure residential segregation until we familiarize ourselves with the history that The Color of Law and other recent works uncover.
In the mid-1950s in Louisville, a place where the Supreme Court could find only de facto segregation, the state of Kentucky arrested, tried, convicted and jailed a white homeowner for selling a home to an African American. The charge was sedition. In 1985, in another Louisville suburb, a local police department, many of whose officers were openly members of the Ku Klux Klan, oversaw the bombing of another home purchased by an African American family that dared to move to the white neighborhood. Similar state-sponsored violence enforced racial boundaries nationwide.
If we believe, as most of us do, that we are surrounded by de facto residential segregation, it is easy to conclude there is little we can do about it. Certainly, we can tinker around the edges, building some low- or moderate-income housing in middle class neighborhoods, facilitating the use of housing vouchers in such places, attempting to adopt and enforce inclusionary zoning rules. But such modest measures, even if successful, will leave neighborhoods — and thus schools — pretty much as segregated as they are today. And with social and economic disadvantage piled up in classrooms, teachers attempting to raise the achievement of low-income African American children will continue to be daunted.
What is needed is very aggressive policy to desegregate schools by desegregating neighborhoods: subsidies for African Americans who move to high-opportunity places, and a nationwide repudiation of exclusionary zoning, with tough penalties for overwhelmingly white suburbs that fail to comply (for example, withholding the mortgage interest tax deduction from homeowners in such suburbs).
Such policies seem absurd in the current political environment. And they are. But they would have been absurd even if Hillary Clinton had been elected president. We cannot begin to think about remedies for de jure residential segregation until we familiarize ourselves with the history that The Color of Law and other recent works uncover. Such familiarity will lead us to conclude that residential desegregation is not only a policy of choice, but a constitutional obligation.
Richard Rothstein is a research associate of the Economic Policy Institute and a fellow at the Thurgood Marshall Institute of the NAACP Legal Defense Fund. He is the author of The Color of Law: A Forgotten History of How our Government Segregated America.
