by Eric J. Segall, Kathy and Lawrence Ashe Professor of Law, Georgia State University College of Law
In the last few weeks, five Trump nominees to the federal bench refused to say at their confirmation hearings whether they thought Brown v. Board of Education was correctly decided. Of course, judicial nomination hearings have become thoroughly cynical affairs where most nominees refuse to comment on anything important. Nevertheless, all nine current Supreme Court Justices said they agreed with Brown, and the authors of an important book on judicial nominations said only a few years ago that no nominee could be confirmed without signaling assent to the decision that ended formal segregation. Yet, here we are with multiple nominees refusing to do exactly that. There was some media outcry, but not very much, and that absence reveals a lot about the state of race relations in America. We can’t even publicly agree that Brown was correctly decided?
From the beginning of our country’s history until today racial inequality has been our most difficult question of public policy. Our founding economy was based to a substantial degree on slave labor, racial apartheid defined many parts of our country for over a century until the late 1960’s, and today the economic disparities between whites and blacks are staggering. In 2014, the median adjusted income for black households was $43,300, while for whites it was $71,300. In 2013, the median net worth of white households was approximately 13 times that of black households ($144,200 for whites compared with $11,200 for blacks). In 2010, black males were six times as likely as white males to be put in jail. The data showing white/black inequality in 2018 America is dramatic and undeniable.
Whites and blacks view these issues quite differently. 88% of blacks think that we have much more work to do before reaching racial equality while only 53% of whites feel that way. 43% of blacks do not believe we will ever reach racial equality while only 11% of whites think the goal is unattainable. These differences are stark and make societal conversations about race extremely difficult.
As a country, we have simply not taken responsibility for our racist past. The depressing numbers above are not the result of chance or randomness. They are the direct result of generations of formal and legalized race discrimination. In addition to slavery and segregation, formal governmental economic policies have caused the gross inequality we still see today. For example, from just after the depression until the 1960’s, the federal government backed billions of dollars in home loans which helped spawn the wealthy suburbs surrounding many cities. But as a recent NPR report summarized:
The term "redlining" ... comes from the development by the New Deal, by the federal government of maps of every metropolitan area in the country. And those maps were color-coded … to indicate where it was safe to insure mortgages. And anywhere where African-Americans lived, anywhere where African-Americans lived nearby were colored red to indicate to appraisers that these neighborhoods were too risky to insure mortgages.
This official, government sponsored racially discriminatory housing policy led to increased property values in white neighborhoods, better public schools in those neighborhoods leading to even more housing appreciation, and then wealth handed down from white generation to white generation. Few of those economic benefits accrued to African-Americans, who for the most part were prevented by these policies from buying homes in these neighborhoods. Approximately 98% of federally backed mortgages between 1934-1968 went to white applicants.
We haven’t come close to making up for this racially discriminatory governmental policy. The average white person lives in a neighborhood that is 75% white and only 8% African-American. One recent study concluded that “racial residential segregation and racialized concentrated poverty persist today.” The Trump Administration’s fair housing policies, to the extent they exist, are likely to make matters worse, not better.
We will not be able to devise effective solutions to the problems of race in America until we recognize two key facts. First, our country is still divided by race in serious and harmful ways. African-Americans have far less wealth than whites, live in much poorer neighborhoods than whites, and attend schools with far less funding than schools which are predominantly white. The fact that there may be less overt racism than fifty years ago doesn’t change that sorry data one iota.
The data leads to the second point. The only way to improve the plight of African-Americans in this country is to enact formal policies to help wipe out centuries of caste-based discrimination. The main impediment to enacting such policies is the belief that now that formal discrimination has been eradicated, official governmental policies should be “color-blind.” Chief Justice Roberts summed up this sentiment when he said, in a case, that prevented parents, educators, and the public at large from voluntarily adopting limited racial balancing in public schools, that the “way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Justice Roberts is wrong. The effects of centuries of racism cannot be alleviated by color-blind policies. Moreover, in the long run, policies that equalize conditions of opportunity between the races benefit all of us. Making those policies effective is challenging, and there may be backlash, but there is no other way. In a country where people may attain the office of federal judge while refusing to affirmatively embrace the most important civil rights decision in history, it should be obvious how much more work needs to be done. Slavery and segregation were our country’s original sins. We can’t move past those sins without directly addressing the legacy of those sins. We have a long way to go.