How Lawyers Can Correct the De Facto Segregation Myth?
[Originally Published by The Legal Intelligencer]
Neighborhood segregation resulted from racially explicit laws, regulations and government practices that created a system of urban ghettos and white suburbs that still exist today. This is opposite to the widely held de facto segregation myth that “neighborhood sorting” and “white flight” were the result of citizens having free and equal choice where they lived.
By Susan Freeman and Gina Rubel | October 14, 2021
Popularized by U.S. Supreme Court majorities from the 1970s to today, the de facto segregation myth has been adopted by conventional opinion, liberal and conservative alike. Contrary to popular belief, racial segregation in U.S. housing was an initiative driven by the federal government in the20th century designed, implemented and upheld by leaders from liberal and conservative ideologies. Neighborhood segregation resulted from racially explicit laws, regulations and government practices that created a system of urban ghettos and white suburbs that still exist today. This is opposite to the widely held de facto segregation myth that “neighborhood sorting” and “white flight” were the result of citizens having free and equal choice where they lived.
Here we discuss the de facto segregation myth, why it is harmful and pervasive, and ways for law firms to address it.
The de facto segregation myth.
The widely held belief is that society became segregated by fact or accident, not by legislation. De facto segregation refers to people willingly and freely choosing the neighborhoods they live in, with segregation occurring as an unfortunate by-product of that free will. De jure segregation is imposed through legislation and upheld by agencies that enforce racist policies.
“Concepts such as ‘neighborhood sorting’ and ‘white flight’ have been used to sustain the de facto myth that the effects of these ‘choices’ are the primary reason behind the segregated neighborhoods—and schools—that we have today,” says Chelsea Bonini, chief legal officer at Conscious Inclusion Company. “The primary driver was not a choice of the people. It was promulgated by laws, regulations and public policies of our federal, state and local governments—it was de jure segregation.”
How de facto segregation became the narrative.
Although segregation was driven and enforced by regulations and policies, the myth that people chose to segregate remains pervasive. This is due to the many counter-narratives and the lack of education about the government’s role in perpetuating neighborhood segregation throughout the United States.
The U.S. government and its agencies at all levels played a major role in creating and enforcing racial segregation. Local, state and federal governments prohibited integration through a variety of measures that prevented developers and homeowners from selling to Black people. This enforced segregation occurred even under Democratic Presidents such as Harry Truman, with liberals fighting against integration amendments to housing programs, and Franklin Roosevelt whose New Deal encouraged segregated neighborhoods based on the false narrative that segregation was necessary to protect property values.
According to Richard Rothstein, in his book “The Color of Law: A Forgotten History of How Our Government Segregated America,” various government policies ensured segregation in U.S. housing. Among them was a policy that subsidized the development of suburbs on the condition that they only be sold to white families. Deeds to the homes then prohibited their resale to Black people.
Developers were prohibited from selling to Black people, with the Federal Housing Administration (FHA) denying capital and insurance to any company offering integrated housing. Once certain areas became known as Black neighborhoods, they were often rezoned, effectively turning them into slums.
At the same time, whites-only mortgage insurance programs helped to shift white people to the suburbs, with the IRS granting tax exemptions to organizations that reinforced white neighborhoods. Real estate agents signed codes of ethics that prevented the sale of homes in white neighborhoods to Black people. Meanwhile, neighborhoods that were previously integrated were demolished and rebuilt for segregation.
The FHA explicitly stated that incompatible racial groups could not live in the same communities and required developers to build structures separating white developments from Black neighborhoods. In other words, segregation was not simply the result of neighborhood sorting. There were heavily enforced policies in place that made it impossible for Black Americans to freely choose where to live. While individual racists contributed to housing segregation, it was government policy at all levels that made integrated housing impossible and created long-term ramifications for Black people.
How segregation affects education.
The divide goes even deeper when schools are added to the equation. Students are expected to attend schools in their neighborhoods, which means that because neighborhoods are segregated, so too are the schools. Racial segregation intensifies gaps in achievement between Black students and white students for a variety of reasons.
U.S. school budgets are set based on property values leading to underfunding of schools in Black neighborhoods. This means they have less ability to attract high quality teachers, less resources for standard—let alone state-of-the-art—technology, and few resources to run programs to help at-risk students. Black students suffer from disproportionate rates of illness such as asthma, lead poisoning and toxic stress, all of which are exacerbated by living near industrial zones. These students then have higher rates of absenteeism and more difficulties in school.
School finances are stretched because schools in Black neighborhoods have lower budgets but also serve a population with the most serious and severe disadvantages. Without financial resources, schools cannot offer adequate programs to improve student outcomes.
Why the de facto segregation myth is harmful.
Racial segregation results in increased achievement gaps, lower life expectancies, higher disease rates, lack of access to good jobs, lack of transportation to those jobs, and unbalanced interactions with the justice system for Black people. Court rulings based on de facto segregation prevent any means of addressing the inequity.
Court decisions have found that because neighborhoods are segregated in a de facto manner, it is unconstitutional to take racially explicit steps to reverse it. These rulings completely ignore that segregation was the result of powerful policies that still determine racial divisions. If segregation occurs by accident or by choice, it can be difficult to address and rectify. If segregation occurs because of government actions, then government actions can and should be taken to remedy it.
“The de facto myth is harmful because it ignores the history of the systems that served to create multi-generational barriers for marginalized communities to have the opportunities to own property, to amass wealth as property values increased, and to pass the growing equity on through family succession,” Bonini says. “Housing equity was denied and neighborhood home values directly impacted school funding throughout most of the nation, so the opportunity to have access to equal educational opportunities has also been severely impacted for generations.”
It’s important to acknowledge that white families were the only ones who had the opportunity to move to the suburbs, due to racially restrictive covenants, loans that were only available to them, single-family zoning ordinances, and other policies and practices that favored their ability to begin investing in property, heartily funding schools, and amassing wealth for generations to come.
How lawyers can help reverse the de facto segregation myth.
It is almost impossible to talk about issues of racism and housing inequality so long as people continue to misunderstand the mechanisms that created and upheld segregated housing.
There are steps that can be taken to reverse the myth and address the harm that government policy and agencies have perpetuated against Black people. The first step is to educate people about segregation. The more people understand that segregation was not the result of individual people asserting their rights but rather a series of policies and programs at all levels of government that made integration impossible, the greater the likelihood that meaningful action can be taken.
Lawyers can play a fundamental role in reversing the de facto segregation narrative and in changing policy. Bonini says they can start by reading Richard Rothstein’s “The Color of Law” to learn how the government directed the creation of segregated communities and fostered the inequity still in place today. That information can then be presented to the firm or practice group as a CLE or workshop along with conversations about ways to raise awareness of these issues. Law firms can commit to making changes in policies or practices thereby enabling the firm to be more inclusive. Additionally, they can help people who are actively involved in community change initiatives by choosing to represent clients who challenge the status quo.
Further, lawyers can become civically active by speaking at public meetings or writing editorials about necessary changes to current policies that perpetuate the effects of systemic racism. They can also join boards and local commissions that align with efforts to raise awareness of the truth about neighborhood segregation and facilitate community change, or they could even run for local office.
“Lawyers are uniquely situated as respected and highly educated professionals and leaders to understand the impacts of the law and public policy on broader systems and to share this with others in their communities,” Bonini says. “When more people know the history of how our national, state and local systems have perpetuated and been impacted by racist policies and practices, communities can better decide how they want to show up today to support and create opportunities for more equitable and inclusive communities into the future.”
Susan Freeman is the CEO and founder of Freeman Means Business and Conscious Inclusion Company. Her mission (and passion) is to help people achieve workplace equity in professional environments. She serves on boards that serve to advance gender and racial diversity on corporate boards and believes we can achieve equity in the workplace and equality in the world. Contact her at Susan@ConsciousInclusionCompany.com or @wonderwomanbiz.
Gina Rubel is called on by corporate and law firm leaders for high-stakes public relations, reputation management, crisis communications and incident response support, including high profile litigation media relations. As the CEO of Furia Rubel Communications, she leads the law firm marketing agency to support professional service firms with integrated marketing, public relations, strategic planning, and content marketing. Contact her at Gina@FuriaRubel.com or @GinaRubel.
Reprinted with permission from the October 14, 2021, issue of The Legal Intelligencer. ©2021 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
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