Last week I shared the ways that Jim Crow laws and discriminatory federal legislation created today’s systemic racism. Now I share some of the Supreme Court decisions and landmark legislation that ended Jim Crow laws and tried to eradicate, although unsuccessfully, the systemic racism created by our earlier history.
THE ENDS OF JIM CROW
In the second half of the 20th century, Jim Crow laws were overridden by a historical Supreme Court Decision and landmark legislation.
State laws establishing the segregation of public schools were declared unconstitutional by a unanimous ruling of the U.S. Supreme Court in the landmark case Brown v. Board of Education. It established the precedent that “separate-but-equal” and other services were not equal at all. But in its verdict, the Supreme Court did not specify how schools should be integrated and in 1955, the Court issued a second opinion (Brown v. Board of Education II) which remanded future desegregation cases to lower federal courts. Although district courts and school boards were to proceed with desegregation with “all deliberate speed,” this action by the Court opened the door to local judicial and political evasion of desegregation. Many school and local officials in the South defied the law.
By focusing the nation’s attention on subjugation of Blacks, Brown v. Board of Education helped fuel a wave of freedom rides to desegregate interstate transportation, to lunch counter sit-ins to desegregate restaurants and other public accommodations, to heroic efforts to register African Americans in the Deep South to vote, and to confrontations over admission of African Americans to southern universities. It also spurred civil rights legislation that, in combination, undid the nation’s legal support for race-based status. None of this would have taken place without Brown.
The Civil Rights Act, which was signed into law by President Lyndon Johnson on July 2, 1964, is credited with speeding the eventual demise of America’s Jim Crow segregation system. It prohibited discrimination on the basis of race or gender in all hiring, firing and promoting by employers. The bill also gave the federal government the authority to desegregate racially divided public spaces. The bill was the first to forbid discrimination in public places (such as hotels, restaurants, theaters and retail stores) and other public facilities. It provided for the integration of schools and other public facilities, prohibited employment discrimination, and ended unequal application of voter-registration requirements. This document was the most sweeping civil rights legislation since Reconstruction. Unfortunately, the bipartisanship that carried the day then is now all but dead.
The Voting Rights Act, also signed into law by President Johnson, outlawed racial discrimination in voting. The law aimed to overcome legal barriers at the state and local levels that denied Blacks the right to vote in many southern states. The Voting Rights Act eliminated the mechanisms that had suppressed Blacks’ rights to vote, including literacy tests, the grandfather clause, and poll taxes. It also authorized the federal government to oversee elections in southern states where there was a history of voter suppression. At the time of the passage of this act, the gap between black and white registration rates was more than 60 percentage points.
Section 4 (a) established a formula to provide remedies where a “test or device” (such as a literacy test) was used as a prerequisite to register to vote. It guaranteed the right to register and vote to those with limited English proficiency. It gave the US attorney general and US district court of Washington DC the power to strike down local and state laws that could discriminate against voters who might speak another language or live in minority neighborhoods.
The Civil Rights Act of 1968, more commonly known as the Fair Housing Act, prohibited discrimination concerning the sale, rental and financing of housing based on religion, race, national origin, gender, handicap and family status. The purpose of the act was twofold – to prevent discrimination, and to reverse the housing segregation that had limited access to good jobs, healthy food, adequate schools and other resources needed for success. But by the time of the passage of this law, homes in better neighborhoods were no longer affordable to the families that could have afforded them when whites were buying into the suburbs.
The Supreme Court issued another landmark decision in Runyon v McCrary, ruling that even private, nonsectarian schools that denied admission to students on the basis of race violated federal civil rights laws.
The Community Reinvestment Act (CRA) was passed to reverse the urban blight that had become evident in many American cities by the 1970's and reduce discriminatory credit practices against low-income neighborhoods. In particular, the act made redlining practices illegal and extended and clarified the expectation that financial institutions would meet the credit needs of all segments of their communities, including low- and moderate-income neighborhoods and individuals. Federal financial institution regulators were required to assess the record of each bank in fulfilling its obligation to the community and consider that record in evaluating and approving applications for charters, bank mergers, acquisitions, and branch openings.
But the CRA does not require financial institutions to make high risk loans that jeopardize their financial stability. The law makes it clear that a bank’s CRA activities must be consistent with the safe and sound operations conducted by the bank.
To the extent that lower-income areas were under served by financial institutions, the CRA was intended to correct these failures.
HAVE WE REACHED THE GOALS?
It is easy to look at the above Supreme Court decisions and the legislation that has passed and think that we have much to celebrate. But as a country we have fallen far short of getting rid of racial discrimination. People of color are far more likely to live in impoverished, high-crime neighborhoods, while white Americans are more likely to live in prosperity and hold a disproportionate share of economic power. On the national level, Black Americans are 12.5% of the population yet they make up 21.4% of the country’s poor.
In Detroit, a 6’ high, one foot thick and half-mile long wall was built in the early 1940’s. A developer, in order to get federal financial assistance, agreed to build the concrete wall to separate the Black enclave from the proposed white subdivision. The wall which is known as the “segregation wall” or the Eight Mile Wall, still stands today, a reminder of one of America’s unfulfilled promises.
Despite the undeniable impact of Brown vs. Board of Education, the historic verdict fell short of achieving its primary mission of integrating the nation’s public schools. Today, more than 65 years after Brown v. Board of Education, racial inequalities in the nation’s school system still exist, largely due to residential patterns and differences in resources between schools in wealthier vs economically disadvantaged districts across the country.
School segregation still persists as a central feature of American public education today. Here are some of the key elements of the American education system that have evolved since Brown vs. Board of Education:
- Black children are more racially and socioeconomically isolated today than at any time since data have been available (1970).
- The racial achievement gaps remain huge.
- Schools for Black children continue to have enormous resource shortages. But resource equality itself is insufficient; disadvantaged students require much greater resources than middle-class white students to prepare for success in school.
- Necessary resources include high-quality early childhood programs, high-quality after-school and summer programs, full-service school health clinics; more skilled teachers, and smaller classes.
- Even with these added resources, students can rarely be successful in racially and economically isolated schools where remediation and discipline supplant regular instruction, excessive student mobility disrupts learning, involvement of more-educated parents is absent, and students lack adult and peer models of educational success.
- Schools remain segregated today because the neighborhoods where they are located are segregated. Raising achievement of low-income Black children requires residential integration, from which school integration can follow. Education policy is housing policy.
- Federal requirements that communities must pursue residential integration have been unenforced, and federal programs to subsidize movement of low-income families to middle-class communities have been weak and ineffective.
In some small cities and towns, schools can be integrated by adjusting attendance zones, establishing magnet schools, or implementing controlled choice programs. But in major metropolitan areas, places like Atlanta, Baltimore, Chicago, Cleveland, Detroit, New York, St. Louis, and so on, distances between ghetto and suburb are too great, and school district jurisdictional lines too established, for these methods to accomplish significant integration. Schools cannot be integrated unless the neighborhoods where they are located are integrated; in particular, by making housing opportunities for low-income, Black, urban residents available in white middle-class suburbs.
Unless we desegregate neighborhoods, we can’t desegregate schools, and unless we desegregate schools, the doors to opportunity for too many Black students will continue to be closed.
The Fair Housing Act (FHA) has never fully delivered on its promise to promote and further integration. Despite the passage of this act, housing discrimination still exists. Today nearly 6 in 10 Black Americans still live in segregated neighborhoods.
The law has no teeth.
The bill limited the Department of Housing and Urban Development’s (HUD) enforcement capabilities. It put the burden of enforcement on the victims, requiring them to file formal complaints with HUD or sue in federal court to vindicate their rights, which many could not afford. HUD’s civil rights division’s record in investigating much less prosecuting, FHA complaints is spotty at best.
Although the act was intended to erase discrimination in housing, white Americans were committed to residential segregation. They used legal and illegal means, including cross burnings, arson, and physical attacks to keep Blacks out of their neighborhoods. They formed thousands of homeowner organization, complete with block captains, with the express purpose of keeping Blacks out of white neighborhoods. And when these methods failed, they moved to the suburbs. Many suburbs maintain zoning ordinances that prevent construction of low- and moderate-income housing, rendering federal subsidies for such housing less useful to combat segregation.
In President Obama’s second term, HUD adopted meaningful regulations that put teeth in the Fair Housing Act’s mandate to foster integration. The regulations had strict timelines, which held both local jurisdictions and HUD accountable. But with the election of Donald Trump HUD Secretary Ben Carson announced that the department would postpone the Obama-era requirements.
Our country has failed to enforce a comprehensive federal open-housing law. The reality is that blacks and whites –even those with similar incomes – still largely live in separate worlds with separate schools and separate opportunities. Without integrating residential neighborhoods, there is little hope of integrating education. To join the fight to end discrimination in housing, see https://nlihc.org/resource/fair-housing-act-overview-and-challenges.
In June, 2013, the Supreme Court struck down Section 4, the heart of the Voting Rights Act of 1965, freeing nine states – Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia – and scores of counties and municipalities including Brooklyn, Manhattan and the Bronx in New York City – to change their election laws. The 5-4 majority held that the coverage formula in Section 4 of the Voting Rights Act was unconstitutional. Section 4 determined which states had to receive clearance from the Justice Department or a federal court in Washington before making changes to voting procedures, such as enforcing strict identification requirements, closing or moving a polling place, redrawing electoral districts, or purging voter rolls, all of which make it hard for minority communities to exercise their democratic right.
As we approach the November election, with polling places disappearing due to fear of contracting the coronavirus by tenured poll workers, many polling places will disappear. Black voters, with more limited transportation options, will be adversely impacted as they try to access new polling places.
Reviews of the effectiveness of the Community Reinvestment Act (CRA) are mixed. While some argue that the CRA has improved access to credit for minority and low-to-moderate income consumers, economists at the Federal Reserve could not find clear evidence that the CRA increased lending and home ownership more in low income neighborhoods than in higher income ones. A Competitive Enterprise Institute study made a similar finding. And Politico has reported that the Community Reinvestment Act sometimes pushes poor people out of their own neighborhoods by facilitating investment by outsiders.
In a hearing before the Congressional Committee on Financial Services, an NYU economics professor wrote that efforts to "lean on" banks in vague and subjective ways to make loans is an "inappropriate instrument for achieving those goals." He suggested that better ways to accomplish the goals would be vigorous enforcement of anti-discrimination laws, of antitrust laws to promote competition, and federal funding of worthy projects directly through an "on-budget and transparent process" like the Community Development Financial Institutions Fund.
It’s easy to debate the reasons we still see such racial disparities. It’s a complex topic of hundreds of years of history and culture, some of which I pointed out in last week’s newsletter (here) But complexity doesn’t mean we can’t see that we have segregated neighborhoods, underfunded schools with Black American majorities, ongoing employment discrimination, and unequal treatment in the criminal justice system. Correcting these policy shortcomings is essential if the promises of Brown, the Civil Rights Act, the Voting Act and the Fair Housing Act are to be fulfilled.
The challenges exist not only in passing more legislation, but in changing hearts and minds. Raising awareness of the ways we have perpetuated systemic racism is everyone’s job. Combating racism is everyone’s job. I appeal to your hearts and minds as you consider your votes this November. Find out where the officials at your local, county, state and national levels stand on combating systemic racism and achieving the aims of the Supreme Court decisions and the landmark legislations included in this newsletter. Ask questions. And seek anti-racist answers.
In these ways, ordinary people can remake our history until it more closely aligns with our highest ideals and we can thereby “create a more perfect union.”