The Fight for LGBTQ Protections Under the Civil Rights Act

Summary

Amicus With Dahlia Lithwick | Law, Justice, and the Courts

Episode: The Fight for LGBTQ Protections Under the Civil Rights Act

Date: April 27, 2019
Host: Mark Joseph Stern (guest hosting for Dahlia Lithwick)
Guests:

• Gillian Thomas (ACLU Women's Rights Project senior staff attorney)
• Christian Ferris (NYT editorial writer)
• Richard Rothstein (author, "The Color of Law")

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Episode Overview

This episode explores three intertwined topics at the heart of the Supreme Court’s current docket:

1. Whether Title VII of the Civil Rights Act of 1964 prohibits employment discrimination against LGBTQ people.
2. The Trump administration’s attempt to add a citizenship question to the 2020 census, and its legal and political fallout.
3. The roots and legacy of government-driven housing segregation in America, as detailed by Richard Rothstein’s research.

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I. LGBTQ Protections and Title VII

Historical Context of Title VII

• Main Point: Title VII was designed as a tool against racial discrimination in employment, but "sex" was added to the bill at the last minute, under circumstances both debated and misunderstood.
• Gillian Thomas: "On February 8, 1964, the last day of floor debate in the House, a virulent segregationist from Virginia, Howard Smith got up and said he wanted to offer an amendment, and it was to add sex to the list of protected characteristics. And the place went wild. Not with enthusiasm, but with hilarity." (03:00)

Early Enforcement and Sex Discrimination

• Key Insight: The EEOC was slow and dismissive in enforcing the sex discrimination provision. Early cases were often brought by female flight attendants facing arbitrary rules.
• Quote: "The EEOC's leadership really thought this was just as much of a joke as the folks on the floor who had initially heard Smith's amendment be offered. They really considered Title VII to be a race bill, first and foremost." (04:27)

The Importance of Price Waterhouse v. Hopkins (1989)

• Main Point: This case established that sex stereotyping is a violation of Title VII—broadening legal understanding of sex discrimination.
• Gillian Thomas: "The Supreme Court found that if your only problem with someone in their performance is that they need a softer shade of lipstick, then maybe it's not so much their performance that's the problem and it's their gender." (09:44)

Extending Sex Stereotyping to LGBTQ Claims

• Key Insight: Civil rights lawyers recognized that anti-gay and anti-trans discrimination is rooted in expectations about how men and women should behave—classic sex stereotyping.
• Quote: "If you're saying that holding women, or men for that matter, to a particular standard of what they're supposed to look like or behave like...it's really not stretching the concept at all to encompass within that, whom they love, whom they're attracted to, and also...how they identify." (10:44)

The Textualist Argument

• Even for “sticklers for text,” it's impossible to separate discrimination against LGBTQ people from discrimination "because of sex."
• Quote: "If I'm a woman and I have a picture of my male fiancé on my desk...and then my officemate is a woman who has a picture of her fiancé who is a woman on her desk, and she gets fired and I don't, it's because of my officemate's sex that she was let go." (12:27)

Supreme Court Outlook and Stakes

• Concern: If the Court rules against LGBTQ protections, it could undermine decades of progress interpreting "sex discrimination" broadly, returning it to a narrow, appearance-based notion.
• Gillian Thomas: "Constricting Title VII's stereotyping model to being something that's just related to appearance is something that I'm very fearful about." (16:20)

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II. The 2020 Census and the Citizenship Question

The Legal and Political Battle

• Overview: The Trump administration pushes to add a citizenship question, which the Census Bureau itself says will lead to an undercount of Hispanics and immigrants—impacting Congressional seats, federal funding, and power distribution.
• Mark Joseph Stern: "All available evidence indicates that these groups are less likely to answer a census that includes the citizenship question because they fear the government will use the data to target immigrant communities." (18:20)

Supreme Court Oral Arguments

• Elena Kagan’s Skepticism:

  • Critiques Secretary Wilbur Ross for "shopping for a need" to add the question, describing the justification as "contrived."
  • Kagan: "So you can't read this record without sensing that this need is a contrived one." (20:45)

• Conservative Judicial Philosophy:

  • Christian Ferris: "Administrative law has a certain way of doing things...The fact that three judges so far have found deficiencies in how the Trump administration went about instituting the citizenship question, it's pretty much emblematic of all these other areas where the administration has had problems in the same area of the law." (21:49)

• Chief Justice Roberts' Ambivalence:

  • Roberts inquires whether the data will help enforce the Voting Rights Act, despite a record of skepticism toward VRA enforcement.
  • Christian Ferris: "It's an irony of ironies...you're talking about Secretary Wilbur Ross's decision to shop for this justification, this pretext, as they found it, truly shows you there really isn't a real motive, a real purpose for this thing." (24:10)

• The Broader Impact:

  • Fear of a 5-4 decision splitting along partisan lines, undermining the Court's legitimacy.
  • Ferris: "If this comes down to just the usual partisan alliances, forget about the legitimacy of the court. This is going to harm the census, this is going to harm the count...it has really broad implications for our American political system." (25:53)

• Justice Sotomayor’s Exchange with Solicitor General Francisco:

  • Points out the legitimacy of fears among Hispanic and immigrant communities about responding to the census.
  • Sotomayor: "Are you suggesting that Hispanics are boycotting the census? Are you suggesting they...don't have a legitimate fear?" (29:00)

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III. The History and Legacy of Housing Segregation

Interview with Richard Rothstein

The Myth of "De Facto" Segregation

• Revelation: Housing segregation was not the result of individual choices but of explicit federal, state, and local government policy.
• Rothstein: "Racial segregation in every metropolitan area of this country was designed, enforced, created, perpetuated by explicit, racially explicit government policy..." (00:00, 34:10)

Forgotten History

• Quote: "We've forgotten it because it rationalizes our inability and particularly our lack of desire to do anything about it. And so it's a comfortable story that we've adopted that lets us off the hook..." (36:25)

Examples of Government-Driven Segregation

• Public Housing: Initially for working-class families and explicitly segregated, often destroying previously integrated neighborhoods.
  • EG: In Cleveland, integrated neighborhoods were demolished for separate 'white' and 'black' projects. (39:05)
• Federal Housing Administration: Financed vast white-only suburbs with deed restrictions excluding Black buyers (e.g. Levittown, Daly City).
  • "The Federal Housing Administration even required these builders...to put a clause on the deed of every home prohibiting resale or rental to African Americans." (42:50)

Lasting Effects

• Wealth Gap: The exclusion of Black families from homeownership means "African American wealth is only 10% of white wealth. And that enormous disparity is entirely attributable to unconstitutional federal housing policy that was practiced in the mid 20th century and that we've never remedied." (46:44)
• Wider Harms: School segregation, health disparities, job access, and community violence all trace back to these enforced residential patterns.

Overcoming the Myth

• On Utopianism: "I'm not a Utopian...but we could do a lot better than we're doing now."
• On Remedies:
  • Redesign subsidy programs to promote integration.
  • Abolish exclusionary zoning.
  • Use Section 8 vouchers and tax credits to encourage moves to high-opportunity neighborhoods.
  • Rothstein: "Remedies are easy to think of...The prior condition has to be political will." (59:09)

Memorable Exchanges

• On Personal Responsibility:
  • "If we understood that history...we would understand that not only can we do something about residential segregation, we're obligated as American citizens to do something to remedy this most serious of civil rights violations..." (35:28)
• On Historical Alternatives:
  • "If the Federal Housing Administration had extended a loan guarantee to Levitt on condition that he sell homes in a non discriminatory basis...Levittown would have been integrated." (65:17)

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Notable Quotes & Moments (with Timestamps)

• "The Supreme Court found that if your only problem with someone in their performance is that they need a softer shade of lipstick, then maybe it's not so much their performance that's the problem and it's their gender."
  — Gillian Thomas on Price Waterhouse v. Hopkins (09:44)

• "Constricting Title VII's stereotyping model to being something that's just related to appearance is something that I'm very fearful about."
  — Gillian Thomas (16:20)

• “So you can't read this record without sensing that this need is a contrived one.”
  — Justice Elena Kagan (20:45)

• "This is going to harm the census...it has really broad implications for our American political system."
  — Christian Ferris (25:53)

• "Racial segregation in every metropolitan area of this country was designed, enforced, created, perpetuated by explicit, racially explicit government policy at all levels of government..."
  — Richard Rothstein (34:10)

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Key Timestamps for Segments

• 00:00–02:03: Introduction and Context
• 02:03–17:37: LGBTQ Rights, Title VII, and Supreme Court Preview (Mark Joseph Stern & Gillian Thomas)
• 17:39–30:42: 2020 Census & Citizenship Question (Mark Joseph Stern & Christian Ferris)
• 30:48–69:54: Housing Segregation in America (Dahlia Lithwick & Richard Rothstein)

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Episode Tone

Engaged, precise, and deeply invested in the ongoing legal and moral fights for equality. The discussions are candid, historically grounded, and often urgent in tone, especially when talking about present and future implications of legal decisions and the mythologizing of American history.

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Summary Takeaway

This episode draws crucial throughlines from the Civil Rights era to contemporary struggles over LGBTQ rights, the integrity of the census, and the enduring reality of race-based residential segregation. It is a clear-eyed exploration of how law, policy, and judicial interpretation shape, uphold, or challenge deep social hierarchies—and what’s at stake in the Supreme Court’s next steps.

Transcript

[Richard Rothstein]

Racial segregation in every metropolitan area of this country was designed, enforced, created, perpetuated by racially explicit government policy at all levels of government that was designed to ensure that African Americans and whites couldn't live near one another.

[Mark Joseph Stern]

Welcome to Amicus. I'm your guest host, Mark Joseph Stern. Dahlia Lithwick is out. She'll be back for the next episode. And later in this episode, she'll talk to Richard Rothstein about the history of housing segregation. But first, I'm going to talk about two really important things that happened at the Supreme Court this week. First, on Monday, the court agreed to hear three major cases asking whether current civil rights law prohibits discrimination against LGBTQ people in the workplace. And then on Tuesday, the justices heard oral arguments in a huge case challenging the Trump administration's ability to add a citizenship question to the 2020 census. Before we get to the census drama, though, let's talk lgbtq. As we speak, Democrats in Congress are pushing a bill called the Equality act that would protect LGBTQ people in employment, housing, education, you name it. So why exactly does the Supreme Court have to decide if existing law already protects LGBTQ people in the workplace? Here's the deal. Title 7 of the Civil Rights act of 1964 prohibits discrimination, quote, on the basis of sex. Courts and government agencies haven't interpreted that law consistently. Lower courts disagree about whether sex discrimination includes LGBTQ discrimination. And now the Supreme Court needs to step in and set them straight, so to speak. To walk us through this dispute, I'm going to chat with Gillian Thomas, a senior staff attorney at the ACLU Women's Rights Project and author of the fantastic book because of A History of Title vii. Gillian, welcome.

[Gillian Thomas]

Hi. Thanks for having me.

[Mark Joseph Stern]

So, Gillian, I want you to take US back to 1964, when Congress was debating the Civil Rights Act. The focus of the bill was, of course, on race. It was largely an effort to fight Jim Crow. So how did this racial justice bill wind up, including a historic provision that also outlawed employment discrimination because of sex?

[Gillian Thomas]

So the 64 Civil Rights act had a number of provisions, or what we call titles. And you're right, it addressed all of the various aspects of society where Jim Crow was still in effect, everything from public accommodations to housing. And Title VII was the provision dealing with employment. And you're correct, for most of the debate on the bill, the protected categories addressed by Title VII included race and color, also national origin and religion. And then on February 8, 1964, the last day of floor debate in the House, a virulent segregationist from Virginia, Howard Smith got up and said he wanted to offer an amendment, and it was to add sex to the list of protected characteristics. And the place went wild. Not with enthusiasm, but with hilarity. And for a good couple of hours, folks stood up to talk about what a ridiculous idea this was to be injecting sex into what was a civil rights bill.

[Mark Joseph Stern]

So why exactly did Smith stand up to introduce this amendment?

[Gillian Thomas]

Historians have debated this for many years, and the answer is still somewhat muddy. And Smith himself, actually, till the end of his life, kind of with a wink and a nod, wouldn't really be completely honest about his motivations. In my research, the conclusion I came to was Smith, for all of his racism, was actually a supporter of the Equal Rights Amendment. And the supporters of the Equal Rights Amendment were mostly upper class white women who came to him and listen, if this passes without protection for sex in it, then white women are going to have fewer rights on the job than black women, just by virtue of their race. And of course, Smith didn't think that could stand any more than those women did.

[Mark Joseph Stern]

Fascinating. And so after this bill passed with the sex discrimination provision intact, how did the Equal Employment Opportunity Commission and the courts approach that ban? How did they deal with sex discrimination?

[Gillian Thomas]

So the Equal Employment Opportunity Commission, or eeoc, was created by Title VII as the federal body that would be enforcing the law. It didn't have litigation powers until 1972, but in 1964, it still was charged with giving employers guidance about what the law's protections meant. And it was very clear from the outset that the EEOC's leadership really thought this was just as much of a joke as the folks on the floor who had initially heard Smith's amendment be offered. They really considered Title VII to be a rape bill first and foremost. And there were some really sexist comments from the initial leadership of the EEOC. The first executive director of the EEOC was FDR Jr. And when asked by reporters about the addition of the amendment, when they asked him, what about sex? He said, I'm all for it. There was another executive director a few years later who said that the sex amendment was a fluke that was conceived out of wedlock. Got it. So they definitely were not that receptive. As Gail Collins recounts in her book, When Everything Changed, the last laugh was with the women. Because the first year that the EEOC was open, a full third of the charges came from women, most of them coming from flight attendants who were challenging all of the various ways in which they were restricted on the job in discriminatory ways. Such as not being able to get married, not being able to get pregnant, or getting fired as soon as they got pregnant, not being able to gain ten pounds, or else they'd be fired, being fired when they got got to age 30. All of those various kinds of barriers that were only placed on female flight attendants and not men. And then it went from there.

[Mark Joseph Stern]

A lot of these LGBTQ cases have drawn on a case called Price Waterhouse v. Hopkins to determine that sex discrimination actually does encompass anti gay and anti trans discrimination. Can you talk to us a little bit about what happened in Price Waterhouse and why that was such an important ruling?

[Gillian Thomas]

Sure. And just to put this in historic context, Price Waterhouse was decided in 1989 and was making its way through the courts. Through the 80s, the court had addressed a variety of different kinds of employer policies that really were premised on stereotypes. Things like the idea that height and weight made someone a better prison guard, even if that kept all women virtually out of the job. And then after the case involving the height and weight restriction in Alabama prisons, there also was a case involving women and pension benefits. And the court had decided that women who were being required by a company to pay more of their weekly wages into the company's pension account based on generalizations about how long women lived and the fact that they'd be, on average, collecting pension benefits for longer than men. The court even struck that down as being an impermissible elevation of group identity over individual identity. So by the time the Supreme Court considered the case of Price Waterhouse v. Hopkins in the late 1980s, there was some basis for them to be considering this issue of generalizations or stereotypes about groups versus individual merit. So the Price Waterhouse case concerned Ann Hopkins, who in the early 80s was working at the then Big Eight accounting firm, Price Waterhouse. And she was very successful. When she went up for partner, she was the only woman out of 88 contenders, but she had the highest book of business. She had brought in the most and the most profits for the firm. And so she thought she was a shoo in it was the right business decision for the company to make. But she didn't get partner. And when she started talking to partners about who had evaluated her application, about why she didn't get partner, she heard nothing about her skills and everything about who she was. She was called macho. She was called too vulgar, having a vocabulary, too vulgar to be a lady partner. She overcompensated for being a woman. She needed a course at charm school. And she did hang in there for Another year, I will also say she told me she did buy a pink suit. So she really did try to heed the advice she'd been given. But surprise, surprise, she in fact was not even put forward for partnership the next year. And so she at that point had a lawyer and she quit. And her lawyer, Doug Huron in Washington, D.C. had a brilliant stroke, which was he was aware of social science being used in race discrimination cases, including in Brownville vs Board of Education, to help educate judges about how stereotypes infect decision making, how ideas about how people should act or should not act help determine their decision making and result in biased decisions. And so he got a social scientist at that time at Carnegie Mellon, Susan Fisk, to write an expert report and testify in Anne Hopkins case about how someone's failure, in this case, specifically a woman's failure to conform to stereotypes about what men think a woman, a real woman, should look like, should act like that, that was a form of sex discrimination. And the Supreme Court agreed with that. The Supreme Court found that if your only problem with someone in their performance is that they need a softer shade of lipstick, then maybe it's not so much, you know, their performance that's the problem and it's their gender. And that was simply revolutionary. The idea that but being the wrong kind of woman, denying someone an opportunity because they're the wrong kind of woman, is just as much discrimination as saying, we're not going to hire women, period. And that really set off a whole new era in sex discrimination law.

[Mark Joseph Stern]

Gillian, how did this principle of sex stereotyping that was really clearly enunciated in Price Waterhouse lead courts to start looking at these cases of anti gay and anti trans discrimination and saying, you know what, this is the same thing that's going on here. This is sex stereotyping. And so it's also illegal under Title vii, Right?

[Gillian Thomas]

Well, first of all, we have to give a shout out to the very creative civil rights lawyers around the country who saw the potential in the Price Waterhouse to use it in this way. But the idea is pretty simple. If you're saying that holding women, or men for that matter, to a particular standard of what that they're supposed to look like or behave like or act like, or dress like, it's really not stretching the concept at all to encompass within that, whom they love, whom they're attracted to, and also getting to the issue of gender identity, how they identify, even whether it's as man, as woman, as non binary, those concepts are really implicit within the idea that we're not going to punish people for being the wrong kind of woman or the wrong kind of man. So the idea that women are supposed to only want to have romantic relationships with men and vice versa is one of the most fundamental sex stereotypes. The idea that someone who is assigned the gender of woman at birth must stay in that assignment and live only that one single way is a stereotype. And so it really was through the repeated invocation to courts of explaining how sexual orientation and how gender identity are lived that this body of law began to develop.

[Mark Joseph Stern]

Okay, so that's a really clear cut case. It seems based on precedent. But what if you're a sort of stickler for text? Is there a textualist case to be made, even if you don't believe in Price Waterhouse, that it's just impossible to discriminate against LGBTQ people without factoring in their sex?

[Gillian Thomas]

I think not. And lawyers who have been bringing these cases always argue in the alternative that you can't disentangle gender identity and sexual orientation from quote, unquote, sex. If I'm a woman and I have a picture of my male fiance on my desk and all is copacetic, and then my officemate is a woman who has a picture of her fiance who is a woman on her desk, and she gets fired and I don't, it's because of my officemate's sex that she was let go. And so these concepts can't be disentangled from one another. And I think courts have also been starting to understand that that expansive concept of what sex means and what sex discrimination means is really hewing closely to what the text means now. Sure, you're going to hear the argument. And we all have. This isn't what the Congress was thinking of in 1964. It certainly was not what Howard Smith was thinking of in 1964. And no one is arguing that. But what we are arguing is that what the meaning of sex is is something that has been a moving target practically from the beginning of its enactment. What sex discrimination is conceived of has been a moving target. Pregnancy has been recognized as sex discrimination. Sexual harassment has been understood to be sex discrimination, which for years was not accepted by the courts. It was just considered personal differences or personal friction between someone who wanted to go out with a subordinate and a subordinate who didn't want to go out with the superior. So that concept has been in motion practically since 1964.

[Mark Joseph Stern]

And so here, I guess, for me is the million dollar question. How do you think the Supreme Court is gonna look at this issue? That's one and two, if the Supreme Court does rule against LGBTQ people here and sort of cuts them out of Title vii, isn't that going to do a lot damage to the law here in ways that doesn't just affect LGBTQ people, but affects a whole bunch of other people who have enjoyed the more expansive understanding of sex and sex discrimination through the years?

[Gillian Thomas]

Yeah, negative rulings from the court in these cases, and we're talking about two sexual orientation cases and a gender identity case, would just be disastrous. I mean, first, as you note, the simple fact that that LGBTQ people actually would be completely vulnerable to being fired for just who they are is, I think, a concept that would shock most Americans would be shocked to know that people argue today that LGBTQ folks should be able to be fired just for who they are. So that would certainly be a disastrous consequence, just from the standpoint of the lived experience of a huge group of folks in our culture. But then also, it does offer the opportunity to spur legislation which the Equality act has been pending for quite some time. And opponents say, of course, well, you have the Equality act pending. That must be an admission that current law doesn't cover LGBTQ folks. And the answer to that is no. It's simply to clarify, as long as we're going to be having these battles, as long as we're going to be having court fighting over what the definition of sex discrimination is, then let's make it as clear as possible. And I think that this battle would shift to a legislative one if the outcome is a negative one. But you're right that a negative ruling on these cases also sends a very bad message in terms of setting us back vis a vis Price Waterhouse and all that it's done for people who don't look, act, behave and so forth, the way stereotypes tell them that they're supposed to. The way the Court has framed the question in the gender identity case, the Stevens case, is troubling. And Linda Greenhouse wrote a great piece about this this week that it actually puts Price Waterhouse in the crosshairs about whether sex stereotyping can be extended to cover gender identity. And there have been some troubling court decisions that have refused to allow the sex stereotyping model to be extended to sexual orientation, where the person claiming the protection of the sex stereotyping model has, quote, unquote, appeared straight. So if you have a gay man who's not quote unquote, effeminate or a lesbian who's not, quote, unquote, butcher but appears straight, that the stereotyping model is not going to help that person because what we're talking about is not how someone looks or acts when we're talking about sexual orientation. It's who they are. And so Constricting Title VII's stereotyping model to being something that's just related to appearance is something that I'm very fearful about, and I think we all need to be fearful about.

[Mark Joseph Stern]

Well, that is extremely disturbing. But thank you so much for coming on to talk us through all of this. It's extremely important and we'll have our answer soon enough.

[Gillian Thomas]

Thanks for having me.

[Mark Joseph Stern]

Okay, so now let's talk census. Secretary of Commerce Wilbur Ross wants the 2020 census to ask everybody if they're a United States citizen, a question that hasn't appeared on the ten year census since 1950. The Census Bureau itself, which Ross oversees, says that a citizenship question will provoke an undercount of Hispanics and immigrants. All available evidence indicates that these groups are less likely to answer a census that includes the citizenship question because they fear the government will use the data to target immigrant communities. And as a result, millions of Hispanics and immigrants won't be counted on the census. And here's why that matters. The Constitution requires the census to count all people and not just citizens. And the federal government uses census data to apportion citizens in the House of Representatives and to allocate hundreds of billions of dollars in federal funding for health care, education, all the social services you can think of. Each state also uses census data to apportion seats in their own legislature. So here's what happens if there's an undercount of Hispanics and of immigrants. Diverse and immigrant rich states like say California are going to lose seats in the House. They just will. And they'll also lose seats in the Electoral College as well as federal fund that they need to help local communities. A majority of states that are poised to suffer most lean Democratic. Some red states like Texas will suffer too. But liberal areas within those states are gonna bear the brunt of the burden. That's because cities where lots of Hispanics and immigrants live will be undercounted and they're going to lose seats in the state legislature. Those seats will shift toward white rural communities which tend to lean Republican. So Republicans are going to gain more power in state legislatures. And those white rural communities that again just happen to be quite conservative will get more federal funding than Hispanic and immigrant rich communities, which again happen to be more liberal whose populations are undercounted. Joining me today to talk through this puzzle is Christian Ferris, an editorial writer for the New York Times who focuses on legal and justice. Welcome, Christian.

[Christian Ferris]

Hey, what's going on?

[Mark Joseph Stern]

So I want to start with the liberal justices sort of tearing into Solicitor General Noel Francisco as he tries to argue that Secretary Ross had a good reason for adding the citizenship question. Here's Justice Elena Kagan describing Ross's work behind the scenes.

[Gillian Thomas]

That it did really seem like the secretary was shopping for a need.

[Dahlia Lithwick]

Goes to the Justice Department, Justice Department.

[Gillian Thomas]

Says we don't need anything. Goes to dhs, DHS says they don't need anything.

[Dahlia Lithwick]

Goes back to the Justice Department, makes.

[Gillian Thomas]

It clear that he's going to put in a call to the Attorney General.

[Dahlia Lithwick]

Finally, the Justice Department comes back to.

[Gillian Thomas]

Him and says, okay, we can give.

[Mark Joseph Stern]

You what you want.

[Gillian Thomas]

So you can't read this record without sensing that this.

[Dahlia Lithwick]

This need is a contrived one.

[Mark Joseph Stern]

Christian, who do you think is the real audience for this question?

[Christian Ferris]

Well, the real audience for this question is the people who care about process, the people who care about, hey, look, this is how government ought to work. And this is how, you know, we have said many times, administrative law has a certain way of doing things. And of course, that's the conservative justices. And by Elena Kagan pointed out how here you have a government official, a bureaucrat, in other words, kind of trying to grease the wheels of government. It seems like something that the conservative justices should be skeptical of.

[Mark Joseph Stern]

I mean, isn't a sort of linchpin of the modern conservative judicial philosophy this deep skepticism toward unelected bureaucrats in the executive branch manipulating the law? Like, shouldn't this case really be catnip for justices like Neil Gorsuch and Samuel Alito, who, under Obama were constantly trying to limit what executive agencies could do.

[Christian Ferris]

Yeah, precisely. And if anything, this case, to not get too technical with the audience, deals with the Administrative Procedure Act. And if there's something about that law that has been kind of a thorn in the side of the Trump administration for the past two years is that they just don't follow the rules. That law just sets out very specific procedures on how governments should do things, how they should issue rules, how they should should implement policies, how they should, you know, issue interim rules, et cetera. And the fact that three judges so far have found deficiencies in how the Trump administration went about instituting the citizenship question, it's pretty much emblematic of all these other areas where the administration has had problems in the same area of the law, whether it's daca, whether it's environmental rules, whether it's the Affordable Care Act. Judge after judge has said, hey, you are not following the rules. This is not how any of this should work. And if the justices don't see that in this case, then we're doomed, because really, there's no clearer cut case for APA violations than this one.

[Mark Joseph Stern]

Okay. Speaking of doom, Christian, Chief Justice John Roberts did not ask a lot of questions during the argument. We talked about that afterwards. My read on his face is that he seemed a little bit, bit bored, which I thought was a little disturbing. He's usually more engaged. And here's one of the few questions he did ask. The first one that he asked to New York Solicitor General Barbara Underwood.

[Richard Rothstein]

Do you think it wouldn't help voting rights enforcement? The cvap, citizen voting age population is the critical element in voting rights enforcement, and this is getting citizen information.

[Mark Joseph Stern]

So, Christian, what are we to make of John Roberts as a sudden, impassioned defender of the Voting Rights Act?

[Christian Ferris]

Yeah, I don't know if he was playing devil's advocate there or he was really being a passionate defender of the Voter Rights Act. We all know from, from history and from his own opinion and Shelby county beholder, that he has some reservations about how this landmark federal law applies to the states. And here, you know, the fact that you have states challenging the government's assertion that the Voting Rights act should be protected. It's an irony of ironies. And also the fact that, you know, really, if you look at the record, if you look at how lower court judges have described Secretary Wilbur Ross decision to shop for this justification, this pretext as they found it, truly shows you that there really isn't a real motive, a real purpose for this thing. And as Elena Kagan said later also in the argument, there have been many, many Associate Attorney Generals for the Civil Rights Division of the Justice Department who have never had a need for, for the citizenship data. So for all of a sudden, to Chief Justice Roberts to kind of, perhaps again, he may be playing devil's advocate to suggest that this is necessary. It's just deeply ironic.

[Mark Joseph Stern]

Christian, I can feel your deep and profound desire to believe that the Chief justice is not a partisan hack. And I share that desire. But I feel like this case is in some ways a kind of make or break test of whether this Supreme Court, or at least the conservative majority, is willing to bend and twist the law to let the Trump administration achieve its aims. Even if in any other circumstance or context, that majority would step in and say, no, you absolutely can't do that. So tell me what will happen here, not just to the law, but to, I think, the public sense and the legitimacy of the Supreme Court. If we get a 5 to 4 ruling upholding the citizenship question, it would be disastrous.

[Christian Ferris]

If that's what happens, I can't even imagine right now, as we speak, I think they're talking about this case in conference and they're, I guess, voting on how this case is going to come out. It is my hope for the future of the court's remaining legitimacy and its public standing before everyone else that they don't fall along the usual partisan lines. As many have said and have observed, this should be a clear cut case. I guess there is a colorable argument that Roberts had to give it to Trump last year when he voted to uphold the travel ban because it was a national security context. Maybe you can make an argument for that. But here, this is no national security context. This is is straight federal governance. How, you know, the Trump administration should do its job under the law, under the regulations, under the apa. And if this comes down to just the usual partisan alliances, forget about the legitimacy of the court. This is going to harm the census, this is going to harm the count. And also that's going to, down the line, affect how districts are drawn, it's going to affect funding for many communities. And most importantly, one thing that has gotten lost in the conversations around this case is that a lot of people are making this case into citizens versus non citizens, immigrants versus Americans. But this case affects all of us. There are many of us who are citizens, who have family members who are immigrants. But there are also many, many of us who maybe live in an all white community or just a community with not many immigrants. But just the fact that a few of those people in your own community will not get counted will affect you, will affect everyone else. And a lot of people don't see that. They just tend to think of their own little turf. But it has really broad implications for our American political system. So let us hope that they can see these greater implications and they can do the right thing.

[Mark Joseph Stern]

Right? So if there was one justice on Tuesday who really did seem to grasp the urgent implications of this case and seem to see through all of the partisan pretext that the Trump administration has tried to put up here, it was Justice Sonia Sotomayor. She was incredibly active during arguments. She jumped in right at the beginning, and she wasn't gonna take any garbage from Solicitor General Noel Francisco. Here's one of, I think, the most remarkable exchanges of the morning when Justice Sotomayor interrogated Francisco about this rather strange point he was trying to make about boycotting the census. Under my friends on the other side's position, you are effectively empowering any group.

[Richard Rothstein]

In the country to knock off any.

[Mark Joseph Stern]

Question on the census if they simply.

[Richard Rothstein]

Get together and boycotted.

[Gillian Thomas]

Are you suggesting that Hispanics are boycotting the census? Are you suggesting they don't have, whether it's rational or not, that they don't.

[Richard Rothstein]

Have a legitimate fear?

[Mark Joseph Stern]

What do you make of that exchange? Christian?

[Christian Ferris]

That was near the end of the argument, and it looks like there, Noah Francisco was just trying to warn the justices. Hey, look, if you do what these respondents or the plaintiffs in this case are telling you to do, then anyone is going to be able to challenge the census. Hey, look, in the history of our nation, we haven't had a challenge like this one. And Justice Sotomayor, even though it may not have been the issue in the case she brought to bear, what's at stake here and the truth of the matter is, and what census officials themselves have recognized, is that there are many communities who will just be fearful of responding. The reality on the ground, something that you didn't hear at oral arguments, is that this is a very anti immigrant administration. This is an administration that is targeting communities, targeting activists, targeting people who are helping immigrants. And as a result, there is a legitimate fear among them to respond to something as simple as a census form. And the fact that that they are suggesting, or Noel Francisco and the administration are suggesting that people will be violating the law by not responding, it just flies in the face of the reality that many immigrants are facing. So I'm glad that she brought that up at the end because it's important to also realize that there's a personal dimension to what the administration is doing.

[Mark Joseph Stern]

Justice Sotomayor, keeping it real as always. Christian, thank you so much for chatting with me today.

[Christian Ferris]

Hey, thank you for inviting me, Mark.

[Mark Joseph Stern]

I'm now going to turn the microphone over to Dalia to talk to Richard Rothstein about housing segregation.

[Dahlia Lithwick]

Sometimes it's important to think about how the courts and the law have succeeded, and other times it's useful to think about how they failed. And you're about to hear a conversation that unpacks the history of housing segregation and the systemic and concerted efforts that supported that segregation. This discussion is based on a really powerful and I think, impactful book about law and segregation that was written by Richard Rothstein. The book is called the Color of A Forgotten History of How Our Government Segregated America. It was published in 2017. It has won multiple awards, and it knocked my socks off when I read it. It's really and truly transformational in terms of how you come to think about the differences between de facto and de jure segregation and the systems that allow for both. Richard Rothstein is a research associate of the Economic Policy Institute, a fellow at the Thurgood Marshall Institute of the NAACP Legal Defense Fund. Richard, welcome to Amicus.

[Richard Rothstein]

Thank you very much.

[Dahlia Lithwick]

I think I want to start by telling you that, you know, one of the enduring tropes of constitutional thinking that I took away from law school was that Brown versus Board of Education fixes everything in 1954, that as soon as the court formalized and constitutionalized the idea of school desegregation, de jure, race discrimination blows up. And I think in about a million ways, your book shows that housing discrimination was and still is as pernicious as school discrimination. So if what I just said is descriptively correct, Richard, can you talk about how we. We started fetishizing school desegregation as the corrective here?

[Richard Rothstein]

It wasn't just schools. After Brown v. Board of Education, we tackled segregation in everything from lunch counters to water fountains to buses to interstate transportation. And in all of those cases, we understood that they were unconstitutional because they were required by government policy, by law, by regulation. Despite having come to the understanding that racial segregation was not only unconstitutional, it was wrong, it was immoral, it was harmful to both African Americans and whites. We've left untouched the biggest segregation of all, which is that every metropolitan area in this country is residentially segregated, and every one of them has clearly defined areas, neighborhoods that are white or all white or mostly white, clearly defined areas that are African American or mostly African American. It's not that we tried to desegregate neighborhoods and have failed. We've never even tried. We all consider it part of the natural environment. We think it's unfortunate. Nobody thinks it's a good thing, but we think there's nothing we can do about it. Because we say that unlike the other forms of segregation, what the court calls the jury segregation, this one wasn't caused by government. This one wasn't created by law, by policy, by regulation. This one just sort of happened. It happened because, oh, individuals wouldn't sell homes to people of the opposite race or real estate agents or banks, private institutions, discriminated. Or maybe people just like to live with each other of the same race. Or maybe it's just an economic thing that African Americans typically have low incomes and lower incomes than whites and can't afford to Live in middle class white neighborhoods. For all of these reasons, racial segregation in neighborhoods arose. And we tell ourselves that because unlike the other forms of segregation, this one wasn't created by government, then we don't have a responsibility to do anything about it, and we can't do anything about it. And the supreme court has ratified this rationalization it calls residential segregation de facto for all the reasons I just described. And it's gone so far as to say in the parents involved decision in 2007 that if you have de facto segregation, not only can't you do anything about it, but you're prohibited from doing anything about it on an explicit basis. So this is a rationalization we've developed. It turns out it has no basis in factual reality. Racial segregation in every metropolitan area of this country was designed, enforced, created, perpetuated by explicit, racially explicit government policy at all levels of government that was designed to ensure that African Americans and whites couldn't live with each other near one another. And if we understood that history and didn't rationalize it away, we would understand that not only can we do something about residential segregation, we're obligated as American citizens to do something to remedy this most serious of civil rights violations, in many ways more serious than any of the others that we dealt with in the mid 20th century.

[Dahlia Lithwick]

So that's really, I think, the core revelation of the book that, oh, we all like to believe segregation, at least in housing, it was just individual, you know, bad actors, racist private choices. But no, no, this was purposeful, ongoing, decades long government actions taken to keep the races apart. You call the book a forgotten history. And I have to tell listeners, it's all there. I mean, this is an astonishing trove of proof. I don't think it's disputable. Who forgot it and why did we forget this history?

[Richard Rothstein]

I think we've forgotten it because it rationalizes our inability and particularly our lack of desire to do anything about it. And so it's a comfortable story that we've adopted that lets us off the hook from completing the civil rights revolution of the 20th century.

[Dahlia Lithwick]

And I wonder if that maybe is partly the answer to my question about why we fetishize Brown, that there's something immoral and wrong about letting children go to segregated schools. But we're okay with segregated housing. That doesn't offend us. And so we don't talk about it because, you know, kids. It's different with kids. Is that possible?

[Richard Rothstein]

Well, I think it does offend us. I don't think that most of Your listeners think this is okay. They just think it's not something that's our responsibility to correct. And it's not a constitutional issue. It's simply a question of economics and private choices. And we understand we have an imperfect society and not every issue can be resolved. And this is one that we just put in that category because we've adopted a constitutional theory that makes a clear distinction between de jury and de facto segregation. We've placed the residential segregation in metropolitan areas in the de facto column, and we move on and ignore it. The reality is that schools today are more segregated than they have been at any time in the past 45 years. And they're segregated because of neighborhoods in which they locate to the segregated. And so long as we believe that those neighborhoods were segregated de facto. Not only can't we do anything about residential segregation, we can't do anything about the continuing segregation of schools.

[Dahlia Lithwick]

I want to just be super clear for listeners who are not constitutional scholars, de jure means this happened because some legal apparatus constructed the segregation. De facto means it just happened. Bad actors. Right? That's our working definition.

[Richard Rothstein]

Yeah. It's the difference between public action and private action. If it was done by government, if the government violates civil rights by creating segregation, it's the jury. If the government had nothing to do with it or very little to do with it, and it was all done by private activity, it's de facto and it's beyond the reach of constitutional remedy.

[Dahlia Lithwick]

So now I really need you to dive down into the history, because this is not recent history. This goes way, way, way back. But can you give us just some examples of what you found in terms of indisputable government policy that was segregating the races in housing?

[Richard Rothstein]

There were many, many of them. But let me focus on two. One is public housing. Public housing, most people think is for poor people. But in fact, public housing was created for the first time for civilians during the New Deal by the roosevelt administration in 1933. And it was not for poor people. It was for working class families who were part of the employed during the Depression. They could afford housing, but there was none available. And the Public Works Administration constructed public housing for working class families. And everywhere it segregated it creating separate projects for a African Americans and whites. Not in the south, in the north, in the east, in the Midwest. And it frequently segregated neighborhoods that had previously been integrated. Many people don't know or remember that in the mid to early 20th century, we had a lot of integration in downtown urban areas simply because workers all worked in the downtown area, factories were located there because they had to be near either railroad terminal or deep water ports. And people had to walk to work. They didn't have automobiles. So if you had factories where African Americans and Irish immigrants and Italian immigrants and Jewish immigrants, even rural migrants were working, they all had to live close enough to those downtown areas to walk to work. So these were integrated neighborhoods, broadly integrated neighborhoods. The great African American poet and novelist Langston Hughes wrote about how he grew up in an integrated Cleveland neighborhood near downtown Cleveland. This is not unusual. He says. His best friend in high school was Polish. He dated a Jewish girl. Well, the Public Works Administration demolished integrated housing in that neighborhood to create two separate projects, one for African Americans and one for whites, Creating a pattern of segregation in Cleveland that previously hadn't existed and might never have developed in the way it did. It built other segregated projects elsewhere in the city. And it did this all over the country. It did this in places that are self satisfied, consider themselves liberal, like Cambridge, Massachusetts, the area between Harvard and mit. The Central Square neighborhood was an integrated neighborhood. It was actually about half white, half black. In the 1930s, the Public Works Administration demolished housing in that neighborhood and created two separate projects, one for African Americans and one for whites, creating a pattern of segregation in the Boston metropolitan area. With that and other segregated public housing projects that otherwise would never have developed in the force that they did during World War II. Hundreds of thousands of workers flocked to centers of defense production to take jobs in war industries. Jobs that they hadn't been able to access during the Depression. They overwhelmed the communities where they migrated to. And the government had to provide housing if it wanted the ships and the airplanes, planes and the tanks and the jeeps to keep on being produced. And so the government created segregation by building separate projects, separate housing projects for war workers. There can be no dispute that it was the government that created the patterns of segregation. Because on the west coast there had been no substantial African American populations prior to World War II. It's not like the east and the Midwest. The largest ship building area in the west coast coast was a suburb of Berkeley called Richmond. 100,000 workers came to work there. The government built temporary and shoddy housing for the African Americans in the industrial area near the shipyards. And it built more permanent housing for the white workers in the residential areas clearly designated. The city of Richmond announced that the reason that the housing was temporary for the African Americans was that at the end Of World War II, African American Americans who came to the community would have to leave. Whereas Whites could stay. The other major policy that the government created was a policy of the Federal Housing Administration that was designed to suburbanize the entire white urban population into single family homes outside urban areas. Levittown, east of New York City, is perhaps the best known. Some of your listeners may remember. I remember hearing a song that Pete Seeger used to sing written by Malvina Reynolds, about little boxes on a hillside made of ticky tacky. That was a giant subdivision almost as large as Levittown, south of San Francisco. That and many other projects like it were developed by the Federal Housing Administration on a racially explicit basis. Someone like Levitt or the builder of the little boxes, a Henry Dolger, they could never assemble the capital to build 15,000, 17,000 homes in one place. No bank would be crazy enough to lend them money to do such a thing. The only way that they could build these projects was by going to the Federal Housing Administration, submitting their plans for the developments, including a commitment never to sell a home to an African American. The Federal Housing Administration even required these builders, like Levitt or like Henry Dolger, to put a clause on the deed of every home prohibiting resale or rental to African Americans. Once that commitment had been made, the Federal Housing Administration guaranteed their bank loans to build these giant developments. And this went on in every metropolitan area in the country. This was not the actions of rogue bureaucrats. This was written in the Federal Housing Administration's manual. It provided that no loan guarantees could be provided to builders who were going to integrate their developments. It even prohibited loan guarantees to developments that were near where African Americans lived because they ran what the manual said, the risk of infiltration of incompatible racial elements. These two policies, and there were many others, but these two policies were some of the major ones. Public housing, which originally was for both whites and blacks, soon became primarily for blacks, because when blacks were concentrated in urban areas, prohibited from leaving by these Federal Housing Administration policies effectively, and whites were subsidized to leave, it was about the same time that industry left the cities. They no longer needed to be located near deep water ports or near railroad terminals. Highways were being built in the 1950s, and industry could be located in rural areas and suburban areas. Once that happened, even the white projects had to be opened up to African Americans because there were fewer and fewer whites living there as they were subsidized to move to single family homes in the suburbs by the fha, the projects became all African Americans. The industry left. The people living in those projects were no longer working class because they no longer had good jobs. Government had to subsidize those projects. Once they began subsidizing it, maintenance and operations declined. The projects deteriorated. They became the kind of slums that we associate with public housing. But these two projects, concentrating African Americans in jobless areas in either public housing or in other rental units in the private market and subsidizing whites to leave those areas and move into single family homes in the suburbs were the two main policies that created the patterns of segregation that we know. The subsidy for whites was so great that whites could leave public housing and move into an FHA or VA financed suburb of single family homes and pay less in their monthly housing costs than they were paying for rent in public housing.

[Dahlia Lithwick]

And at the end of that, they own their home.

[Richard Rothstein]

They own their home. Well, that's why this history is so critical to understand. It determines the construct of urban areas today. The white families who were subsidized to buy those homes by the federal government in the mid 20th century gained over the next couple of generations, 200, 300, 400, $500,000 in wealth in equity. African Americans who were prohibited by explicit federal policy from participating in that wealth generating activity, continue to rent apartments in urban areas. Today, African American incomes are about 60%, 6 0% of white incomes. But African American wealth is only 10% of white wealth. And that enormous disparity is entirely attributable to unconstitutional federal housing policy that was practiced in the mid 20th century and that we've never remedied. And it determines so much of the racial inequality that we have today. Because low income African Americans are concentrated in neighborhoods of severe disadvantage. We have an achievement gap in schools. We can't solve that achievement gap in segregated schools. We have enormous disparities in life expectancy and wealth between whites and African Americans because African Americans are living in disadvantaged neighborhoods without amenities and access to health care and clean air and groceries. We have violence in places like Ferguson and Milwaukee because of the concentration of the most disadvantaged young men in neighborhoods where they have little access to to good jobs. We wouldn't have the kind of police confrontations with those men if we weren't concentrating them in single neighborhoods. We'd spend a lot of time thinking about the symptoms, whether it's school reform or public health or monitoring police activity, but ignore the underlying cause, which is an unconstitutional arrangement of housing segregation in metropolitan area.

[Dahlia Lithwick]

Can you really put the finest point you can on the ways in which this was absolutely intentional? And I'm going to ask you the follow up question, which is why? Why the government was working so hard, and it's clear from the book, there were people who wanted to push back, who couldn't pierce this policy of segregating the races.

[Richard Rothstein]

In housing, this was so explicit that it is quite astounding that we have been able to satisfy our desires by rationalizing it away. Clearly, people who moved into these public housing projects knew that the public housing projects were designated by race. It's not that. I mean, take the famous project Pruitt Igoe in St. Louis. Pruitt was for African Americans, Igoe was for whites. It's not that African Americans liked the name Pruitt and whites liked the name, the name Igoe. These were clearly designated. There was a clear government policy. Every family who bought a home in Levittown or in Daly City or any of these other suburbs, these were all racially explicit, exclusive projects. Every family knew what their deeds said. In Levittown, for example, it was a matter of some controversy. There was a minority of families in Levittown who formed a committee in the 1950s called the Committee to End Segregation in Levittown. So these were very, very explicit policies. Why were they implemented? As you say, there were some opponents of it even in the administration. Clearly the most aggressive opponent of it was the president's own wife, Eleanor Roosevelt. I don't know what his personal feelings were, but he never was able to be persuaded that he should do something. His view was that his two important priorities first was ending the Depression and then winning the war. And he was unwilling to tackle anything that was at all controversial. And certainly racial segregation would have been controversial had there been attempts to undo it. There's another book that you're probably familiar with, written by Ira Katz Nelson, called When Affirmative Action was White. He shows that the Roosevelt administration excluded African Americans from programs like social media, Social Security, and the Fair Labor Standards act in order to pacify southern segregationists. But that doesn't fully explain this, because southern Democrats, segregationists never opposed, for example, integration in northern schools. It was only segregation in southern schools that they wanted to preserve. It was their so called way of life. There would not have been opposition from southern Democrats. You if, for example, the Public Works Administration had built segregated projects in the south but allowed them to be integrated in the North. So this came from far deeper than simply compromise with southern Democrats. I can tell you a small story that might give a hint of how this happened. In the early 20th century, we had a racially integrated federal civil service. African Americans were hired into the federal civil service in the McKinley and the Teddy Roosevelt and the William Howard Taft administrations. And when Woodrow Wilson was elected president in 1912, he was the first southerner who was elected to the presidency after the Civil War. Even though he had moved to New Jersey just prior to being elected, he embarked upon a program to segregate the previously integrated federal civil service. Curtains were placed, placed in federal offices in Washington to separate black from white workers. Black workers in the federal civil service who supervised whites were fired. Bathrooms were constructed in basements for African Americans to use. Previously, there had been no separate washrooms. Well, the assistant Secretary of the Navy who was responsible for implementing this program in the Navy department was Franklin Delano Roosevelt. I'm not suggesting that this is something he would have done voluntarily, but he certainly didn't object to it, and he implemented it willingly. The Roosevelt administration was made up of northerners as well as Southern Democrats. And the northerners had an assumption of their own racial superiority that they felt comfortable implementing in public policy. So we think of the Roosevelt administration and the New Deal as being a liberal administration. And it was to the extent of granted extended benefits to working class families that had never received such benefits before. African Americans flocked to the Democratic party after the New Deal because they received segregated public housing when previously the government had provided no housing at all to people who needed it. But the assumption of the Roosevelt administration was an elite, racially superior assumption that infused all of their policies. Policies.

[Dahlia Lithwick]

Okay, you have now persuaded me, and I suspect folks who are listening, that we chose this. We really chose this hard, and we wanted this and enforced it. And so then, for instance, in 1973, and you started with this up top, you know, there's the Supreme Court and Milliken versus Bradley just asserting that whatever was happening in the Detroit school desegregation plans, it was segregated because of something. We don't know what it is, but in no significant measure is it caused by governmental activity. And then as recently as 2007, we have Chief justice John Roberts writing in the parents case that, you know, we don't know there's no constitutional remedy required because nothing that happens in school resegregation and nothing that happens in Louisville and in Seattle has anything to do with the government's own actions. So we have hook, line, and sinker. Embrace the fiction you described initially that we don't know, it just happened. This is just the world. There's no cause. And what I'm wondering is, is this just. And I think you've sort of characterized it as a false, false consciousness that Allows us to feel better about ourselves. But why aren't the courts willing to take what you are? Again, you are not surfacing anything that is a secret. Why are the courts not reckoning seriously with the straight line that you've drawn and that history has drawn between residential segregation policies that are overt and explicit and all the constitution constitutional harms you've delineated in this conversation?

[Richard Rothstein]

Well, as you know better than I, the courts don't take initiative in these areas. They respond to litigation that works its way up to the supreme Court. Today, nobody would really have standing to initiate litigation that would undo many of these policies. Of course, there are certain small cases that have been pursued after public housing became all black or mostly black. The purposeful placement of subsequent public housing projects, all in black neighborhoods. There were cases like that in Dallas and in Chicago before that and Baltimore. And in each of those cases, there were settlements or decisions that were issued that gave some low income families vouchers to move to, to more high opportunity communities. In 2015, there was a challenge to the typical placement of developments for low income families under the low income housing tax credit program, Their deliberate placement primarily in already segregated neighborhoods. The court in that case found that such purposeful placement, or, or even if not purposeful, such disparate placement of low income housing tax credit programs in already segregated neighborhoods could violate the fair housing act because of its disparate impact. But mostly this can't be solved through litigation. The only way it can be solved is if we develop a new civil rights movement, a new consciousness about our obligation not only morally and practically, but constitutionally, to address this issue. We would adopt policies. Those policies would certainly be reviewed by the courts. And the courts, if they understood this history, and if the history became more widely known and the court was forced to acknowledge it, the courts would have to uphold remedies that were racially explicit to redress this segregation. But until we have a broader political consensus, the civil rights movement, as I say, around this issue, it's unlikely that the courts will get the kinds of cases to review that could substantially address racial segregation, residential segregation.

[Dahlia Lithwick]

And is it your view, Richard, that the reason the courts, and I don't want to single out John Roberts or any individual jurist who says, you know, we don't have an explanation for why housing was segregated or why schools are therefore segregated. Is it your view that. That'. Saagain, I'm asking you these questions that are unfair about why people do what they do. But is this just so that we get to say the Sentence, you know, we're over the race problem in America is this. I mean, it's the same rationale that we have in the Voting Rights act case, that we just want to feel that, you know, we've solved all this and that's why the courts can so blinker themselves to the reality you've described.

[Richard Rothstein]

Well, I don't know. You know, I don't think we think we've solved it. As I say, most people think racial segregation of metropolitan areas and neighborhoods is too bad. We don't think that the problem has been taken care of, but we think there's nothing we can do about it. We've convinced ourselves of this myth that it all happened by accident, and what happened by accident can only be undone by accident. And so it's a rationalization that takes us off the hook from doing something that we otherwise be required to confront.

[Dahlia Lithwick]

For listeners who are listening and saying, like, oh, dear God, absent a massive civil rights movement to desegregate our urban areas, this is hopeless. Do you have a couple of notions about concrete things that could be done?

[Richard Rothstein]

Well, there are many, many remedies. Remedies are easy to think of. The prior condition has to be political will to do it. In the 1940s and 50s, the civil rights victories that we won, beginning with Brown versus Board of Education and then in the 1960s, they were also considered completely inconceivable. So knowing what will be conceivable in the future if we develop a new understanding of the necessity, is not so easy. Easy to do. But here's an extreme remedy. Levittown, for example, today is about 2% African American. In 1968, we passed the Fair Housing act, which prohibited future discrimination, ongoing discrimination on the basis of race in the sale and rental of housing. And as a result, a few middle class African Americans have been able to buy home homes. In levittown. It's about 2% African American. The area around it perhaps is 15% African American. If we understood this history, it would be conceivable that the federal government could and could buy up homes in levittown at market rates 300, 400, $500,000 and resell them to qualified African Americans for $100,000 as a very narrowly targeted remedy for a very specific constitutional violation. Now, that's not realistic. I'm not suggesting that that's something that people should start advocating for now, but it's the kind of thing that could be done as a remedy. Still not realistic today. But more conceivable is we could abolish exclusionary zoning ordinances. We could understand that zoning ordinances in all all white suburbs or predominantly white suburbs are really designed to perpetuate a racially exclusive policy that was created 50 years ago and that therefore those zoning or ordinances should be prohibited and they should permit suburbs. All suburbs should be required to permit the construction of townhouses and single family homes on small lot sizes, Even low rise apartment buildings. That would enable working class families and in particular African Americans to move into them. We now have three federal housing programs still. Biggest by far is a continued subsidy to single family homeowners, which is completely unjustifiable. We're subsidizing single family homeowners without similar subsidy for working class families who rent apartments in urban areas. It's the mortgage interest deduction. That subsidy is indefensible in light of the history that I've described. It should be prohibited and the funds should be redirected to programs that would help to integrate those communities. We have two federal programs now that subsidize the housing for low income families families. One, as I mentioned, is the low income housing tax credit program. That's a subsidy to builders who build low income housing. Presently, almost all of those projects are placed in already low income segregated neighborhoods. The developers would rather do it because land is cheaper there and they don't have to hold 100 meetings to explain to the community why they're bringing bringing poor black people into their neighborhood. But we could redesign the low income housing tax credit program so that it placed a priority on issuing those tax credits to developers who would construct projects in high opportunity communities. That could only be done, of course, once we prohibited the exclusionary zoning ordinances in those communities. The other program we have is the Section 8 voucher program program. It's a subsidy to families to be able to rent apartments that they otherwise couldn't afford based on their incomes. That program also reinforces segregation because people receiving those vouchers use them mostly in already segregated low income neighborhoods. We could redesign that program so that it could be used more frequently in what I refer to as high opportunity neighborhoods. Neighborhoods where schools are students, are high performing, where African Americans have the opportunity for better health and for more access to food and more access to jobs. That program could easily be redesigned so that instead of reinforcing segregation, it promoted desegregation. So there are many, many other policies that I could describe. Thinking about policies is not difficult. It's developing the understanding of this history and then the political movement to enforce desegregation that's the big challenge we face today.

[Dahlia Lithwick]

Richard, can I ask you one parting, somewhat fanciful, counterfactual question just for my own sanity?

[Richard Rothstein]

Sure.

[Gillian Thomas]

Okay.

[Dahlia Lithwick]

Do you have in your head an imagined world absent all these policies, the FDR and onward policies, do you imagine a world in which we would all be living together in towns in harmony? I guess what I'm asking is, is your sense that we would have drifted this way one way or another just because racial animus and anxiety in this country that you've described in the construction of race that you've described, that isn't a North south thing, it's just the construction of race that, that would have eventually driven us apart. In other words, is there a movie in your head that you would like to share with me about what would have happened but for the policies in housing you've described? Described?

[Richard Rothstein]

I'm not a Utopian. I'm not suggesting that we're going to have a perfect world, but we could do a lot better than we're doing now. Take Levittown. I used this example before, so I'll use it now. This development of Levittown and the hundreds and hundreds of them like them throughout the country were built primarily for returning war veterans at a time when there was an enormous housing shortage. No housing had been built during the Depression except for the government housing that was designed for working class families. But it was very little relative to the need. During World War II. You couldn't use construction materials for civilian purposes, could only be used for war workers, and you had millions of returning war veterans coming back to the country needing housing. So there was this enormous housing short shortage. Certainly whites, many whites, not all whites, but many whites, were racially prejudiced. But if the Federal Housing Administration had extended a loan guarantee to Levitt on condition that he sell homes in a non discriminatory basis, the same way that it would have to do today, African Americans could have afforded to move there and would have. There may have been some whites who would have said, I don't want to live in an integrated neighborhood. I'll only move to Levittown if blacks are excluded. But for every white who took that position, there were 10 willing to take its place and so Levittown would have been integrated. The same thing is true of the public housing that I described in the mid 20th century. Really. There may have been some whites who would have not wanted to move into public housing even though they had been living in integrated neighborhoods before. But for every white who took that position, there would have been 10 willing to take its place. We would have developed patterns of integration that were very different from what we have today. You know, there were whites in the south who didn't want to drink from the same water fountains as African Americans before the 1960s. They didn't want to ride on the same buses or in the same. Same parts of buses. They didn't want to allow African Americans into their restaurants. But when the government required that those Jim Crow provisions be abolished, we adjusted. I don't think there's a lot of demand for separate water fountains in the south today. We still have a lot of reaction, but it's not that extreme. So I think we would have made a lot of progress, and we could have built on that progress. The other thing that I want to emphasize, though, is that the stereotypes that whites have of blacks, even that African Americans have of themselves, is based partly on government policy. Certainly a lot of it is the legacy of slavery. But when African Americans were an enslaved people and people developed images of what African Americans were killed, capable of at that time, that's been handed down through the generations. But a lot of the stereotypes that we developed in the 20th century, we, meaning whites, developed in the 20th century of African Americans, were government created. When we take people and concentrate them in overcrowded neighborhoods without adequate public services, where they have to pay more for housing than whites have to pay for similar housing housing, and therefore have to double up and overcrowd their homes, subdivide them, live largely on the streets because their homes are so crowded, whites looked at those neighborhoods and said, well, African Americans are slum dwellers. I don't want them in my neighborhood. If the government hadn't created African American slum conditions as a result of purposeful racial policy, whites might not have developed such strong stereotypes of their superiority to African Americans. So it's hard to say how far we would have gone if it had not been for these government policies. I'm not suggesting, as I said, that we would have utopia, but we would have gone a lot farther than we have today.

[Dahlia Lithwick]

Richard Rothstein is with the Economic Policy Institute and the Thurgood Marshall Institute of the NAAC ACP Legal Defense Fund. The book that we've been discussing is the Color of a Forgotten History of How our Government Segregated America. And it will change. I think it did for me, the way you think about race and segregation and the Constitution in this country. Richard, thank you very, very much for your time.

[Richard Rothstein]

Thank you.

[Dahlia Lithwick]

That's it from me for this week's episode of Amicus. Thank you so much. To Slate's Mark Joseph Stern for helming the show this week. And thanks to you, as always, for listening. If you want to get in touch, Our email is amicuslate.com we love your letters, and you can always find [e-mail] AMICUSpodcast Today's show was produced by Sarah Burningham and Danielle Hewitt. Gabriel Roth is editorial director of Slate Podcasts, and June Thomas is managing producer of Slate Podcasts. And we'll be back with another episode of Amicus in two weeks.