By Kelly Candaele, Capital & Main

This story is produced by the award-winning journalism nonprofit Capital & Main and co-published here with permission.

When Richard Rothstein’s book The Color of Law was published in 2017, he had no idea of the wide-ranging impact the book would have. “What I wrote about was known at one time but forgotten,” Rothstein said. His book outlined the unlawful, unconstitutional and shameful way that every level of government as well as banks and real estate developers restricted the ability of African Americans to purchase homes and thereby build household wealth. Government helped whites purchase homes while blacks were excluded. The outcome of discriminatory policies that went back decades had profound consequences that are still felt today. Rothstein’s book was a New York Times bestseller.

Then his daughter, housing expert Leah Rothstein, questioned him about what housing activists and ordinary community residents could do to challenge the status quo of segregation. Their new book, Just Action: How to Challenge Segregation Enacted Under the Color of Law (on sale June 1), begins to answer that question.

The percentage of African American families who own their own home has not changed in 50 years, a damning statistic that Richard Rothstein attributes to past unconstitutional federal housing policy and the accelerating costs of housing. “Marching with Black Lives Matter and putting a sign in your window is not enough,” Richard says. Both of them believe that change will come only when a grassroots constituency is built that will pressure politicians and other leaders to take bold action.

Leah and Richard Rothstein did not set out to just write a book, but to give tools to racial justice supporters who might employ them in a “new civil rights movement” that could engage in local campaigns that challenge segregation and its effects. They share innovative strategies and local victories from across the country through their free Substack platform.

They spoke from their homes in Berkeley and Oakland.

This interview has been edited for brevity and clarity.

Question: If most of our cities are still highly segregated by race, what are the reasons?

Richard Rothstein: The reason is unconstitutional policies that federal state and local governments followed to purposely segregate every metropolitan area. Those policies still determine residential inequality today. For example, when Levittown was built on Long Island after World War II, it was done with subsidies from the Federal Housing Administration and Veterans Administration. There were 17,000 homes built in one place. For the subsidies they received, Levitt was required to never sell a home to an African American. The same thing was done in every suburbanized area of the country at the time.

These homes were affordable to black families as well as to white families at that time but they are not today. The consequence of this policy, and there were dozens of public and private policies that I described in The Color of Law that segregated the country, were enormous.

Cities can’t legally discriminate on access to housing today. What are some of the ways in which cities, without explicitly saying, “Only whites are welcome,” get around the law and keep their communities segregated?

Leah Rothstein: Single-family-only zoning took the place of racial zoning when that was outlawed. Over 75% of residential land throughout the country is zoned to only allow single family homes. That limits the supply of housing and ensures that the housing prices in those communities remain high. This prices out lower- or middle-income families who don’t have intergenerational wealth for down payments. This includes most African American families.

When there’s talk about changing zoning to allow multifamily housing is when the “Not in my backyard [NIMBY]” folks get organized. They say, “The character of our community will decline and we’ll see more crime.” These comments often thinly veil underlying racial prejudice about what will happen if the community becomes less white.

Richard Rothstein: Twenty million Americans participated in Black Lives Matter demonstrations in 2020, the biggest demonstrations in American history over racial justice. These weren’t all African Americans from low-income neighborhoods. Many were white suburbanites. If they were organized, the NIMBYs would not be able to have a sole voice in these decisions.

What are some of the key things that housing activists or just regular people who are concerned about segregation can do? 

Leah Rothstein: It all depends on each community’s challenges, opportunities and history. We describe dozens of policies and strategies that both increase investment in lower-income, segregated African American communities and prevent displacement there when investment increases. These include inclusionary zoning laws, Just Cause Eviction ordinances and the right to legal counsel for tenants facing evictions. There are also policies that can help open up exclusive expensive, mostly white communities to more diverse residents. These would include zoning changes, preferences for African Americans to get into units, and countering NIMBY opposition to new affordable housing as well as housing for middle income families, which we call “missing middle” housing.

Land trusts are another strategy that can create affordable home ownership opportunities in areas with high housing costs. With a land trust, the trust owns the land but the homes themselves can be bought and sold, keeping home prices affordable. In a gentrifying community, land trusts can help prevent displacement of lower- and moderate-income families.

Many activists here in Los Angeles don’t want any kind of gentrification and oppose upper-income whites moving into Black or Latino neighborhoods, period. They haven’t figured out how to stop a Black or Latino family from selling their home to the highest bidder, just like any family has the right to do. Can there be “conscientious gentrification”?

Leah Rothstein: Denying these neighborhoods more investment, more retail, or denying African American homeowners the ability to sell their homes at higher prices is not what we want. We want these communities to become areas of higher opportunity but, in the process, we also want to prevent displacement. Some displacement is inevitable as areas become more desirable to people with higher incomes.

But there are measures that can be taken, such as inclusionary zoning and rent regulation, to protect tenants. We did quote a booklet on how to be a conscientious gentrifier by becoming a contributing member of that community, engaging with the local history and institutions and businesses there. Supporting local community activists is another way.

Provide some examples where the policies you are advocating have been successfully implemented. You write in the book about West Mount Airy in Philadelphia; Oak Park, Illinois; and Cleveland Heights as achieving what you call “stabilized integration.”

Leah Rothstein: All three of those communities took intentional action when they saw their community start to integrate. African Americans started moving in, and they wanted their communities not to go the way of other white communities where many whites sold their homes in a panic and fled as the black population increased. Each of these communities engaged in one-on-one organizing to convince whites to stay and embrace the idea of an integrated community. They recruited realtors willing to sell homes to African Americans. They organized favorable mortgages for people to buy into the communities, and Oak Park had an equity assurance program that ensured homeowners against falling property values. Homeowners were often afraid that their property values would fall if the community integrated. No homeowners ever made a claim or received a payout from this program because property values increased as the community became more desirable to both whites and African Americans. All three community residents created a culture of being an integrated and welcoming place. They’ve all maintained a stable integration for decades.

You’ve outlined a number of policies, but none of them by themselves seems like it would create the scale we need to dramatically alter housing patterns in our cities.

Richard Rothstein: We’re not utopians. The subtitle of this book is How to Challenge Segregation. It’s going to take a movement that grows over time. We don’t believe that there is a will at the national level to address this at this point. But if local groups begin to organize at the community level, they will cascade into something significant. Even though segregation was created primarily by federal policy, many local policies, programs and practices maintain and strengthen it.

The politics of this are obviously not easy. There are many good liberals throughout California where if push comes to shove on bringing multifamily mixed income units into an area that has been exclusively single-family homes, they are going to oppose it.

Leah Rothstein: I’ve written in our Substack column about Menlo Park, a community in Silicon Valley which was an exclusive single-family-only zoned area. The median home price is several million dollars. The school district there had an empty school site and proposed to build 90 units of affordable housing for teachers. Opponents resisted and put a measure on the ballot that would make that project impossible.

A group organized and went door to door to counter the measure and they ended up defeating it. The group had been reading The Color of Law. These residents started talking to their neighbors about segregation, and they ended up finding a lot of people who agreed with them. They built a movement that supported affordable housing and inclusion.

I thought an interesting idea was to make housing allowances a mandatory aspect of collective bargaining in appropriate cases. 

Richard Rothstein: Health care is considered a mandatory subject of bargaining. Why isn’t affordable housing near the places where people work also considered a mandatory subject of bargaining? The only reason is that unions have not been insistent on it. In Oakland, California, the Service Employees International Union pointed out the obvious fact that their members could not afford to live anywhere near Oakland, where they worked, as the city had gentrified. In negotiations, the union proposed housing allowances to be included as part of the contract. Over the long run unions may succeed in getting housing considered as a mandatory subject of bargaining.

The real estate industry and banks have been notorious in their discriminatory practices over the years, steering African American and white home buyers into same-race areas and offering less competitive loans to African Americans. What did your research find?

Richard Rothstein: An investigative report we cite was conducted by Long Island Newsday. They engaged pairs of pretend applicants with the same economic qualifications, except one was white, the other black, who went to housing real estate agents. Fifty percent of the testers received discriminatory treatment ranging from African Americans only being shown homes in black neighborhoods to subtle racial remarks made by the real estate agents to white applicants to discourage them from considering diverse neighborhoods.

There’s no reason to believe that Long Island is any worse than anyplace else in the country. This kind of testing should be done by civil rights groups everywhere. We don’t know of any large real estate firms like Century 21 or Keller Williams Realty that are offering services pro bono to African American homebuyers. Why not make funds available to subsidize the very African Americans families whose parents and grandparents were excluded from communities by these very same real estate companies? 

How are California’s housing laws changing? Will they have an impact on desegregation?

Leah Rothstein: California has abolished single-family zoning and forced cities to make it easier to build accessory dwelling units. California has a more top-down approach. It also has a new rule that if jurisdictions aren’t in compliance with their regional housing needs assessment, developers can propose projects regardless of zoning if what they are building has a certain percentage of affordable units.

California is leading the way in statewide measures. But there are communities across California resisting these changes, so we still need engaged residents advocating to support policies on the local level. We’ve highlighted communities across the country that are taking on strategies one piece at a time. There is movement everywhere, but we need to expand it by engaging not just activists, but all racial justice supporters in campaigns to redress segregation.

Copyright 2023 Capital & Main