Berks County Bar Association The Berks Barrister Summer 2021 - 31

w w w . B E R K SB A R .o r g
THE NEED? THE REMEDY?
By Donald F. Smith, Jr., Esquire
I
grew up in the small, lily-white, rural
community of Belleville, Mifflin
County, nestled in the beautiful
Kishacoquillas Valley.
My family's life revolved around the
local Lutheran congregation. In January
1970, while a junior in high school, I took
part in an activity breaking my sheltered
existence, taking me beyond my bucolic
environs.
It was a church-sponsored weekend trip
to West Philadelphia, with each of us being
housed with a different African American
family. Hosts and youth all came together
as a group for worship on Sunday morning
and a departing luncheon. Otherwise, I
spent Friday night and all day Saturday
with my assigned family and their son, a
year older than I.
Fifty-one years later, I recall developing
a comfortable feeling with persons who
did not look like me or anyone else in my
hometown or school. Saturday night the
son and I went bowling in the basement of
30th Street Station; returning late at night
to his home, via the subway, I felt safe in
his company. The weekend was an eyeopening,
enriching time.
Back home in Belleville, as part of our
next Sunday worship service, the Pastor
asked me to report on the experience.
I have a clear memory of telling the
congregation that, by the time of the group
luncheon, I no longer saw faces of color,
only human faces.
Earlier this year, I thought about that
weekend as I prepared to moderate a
statewide seminar on the book The Color
of Law-A Forgotten History of How Our
Government Segregated America, by Richard
Rothstein, a research associate at the
Economic Policy Institute. The 2017 book
thoroughly documents how government
at all levels and in all branches created
and reinforced residential segregation. It
began with the United States Supreme
Court failing to fully enforce the Thirteenth
Amendment's prohibition of slavery.
The Civil Rights Act of 1866 banned
actions that Congress viewed as being
characteristics of slavery, including racial
discrimination in housing. However, in
1883, the High Court held the ban to be
unconstitutional. Rothstein writes that
The FHA also refused to subsidize
integrated developments. Thus, when
developer William Levitt built his
Levittowns, only whites could buy the
homes, and then the homeowners were
forbidden to rent or sell to persons " other
than members of the Caucasian race. "
These and other government actions,
such as local undisguised racial zoning
ordinances, Rothstein argues, constitute
de jure segregation and have led to the
segregation existing today. Yet, the
Supreme Court views current segregation
as resulting from private choice,
meaning, de facto segregation. De jure is
unconstitutional, de facto is not and cannot
be remedied by the courts.
The Court's thinking is exemplified in
its 1974 decision of Milliken v. Bradley.
The NAACP had sued to integrate the
public schools of Detroit, Michigan.
Over 70% of the city's students were
black. In order to achieve true integration,
the Court " did not agree that exclusions
from housing markets could be a 'badge
or incident' of slavery. In consequence,
these Civil Rights Act protections were
ignored for the next century. " The result, as
painstakingly detailed by Rothstein, is quite
disturbing.
The most disappointing involve FDR's
New Deal programs. The Public Works
Administration built 47 public housing
projects, all segregated, 17 for blacks, the
rest for whites. The Federal Housing
Administration refused to insure mortgages
for African Americans in designated
white neighborhoods or for whites in a
neighborhood where African Americans
were living.
though, a desegregation order would have
to include suburban districts that were
overwhelmingly white.
But first, the NAACP had to prove
that the segregation was de jure and not
de facto. The trial lasted 3 ½ months, and
its proof included points Rothstein would
later make. Convinced de jure segregation
existed, the federal trial judge ordered
integration across district lines. Ultimately,
the Supreme Court, by a 5-4 vote, reversed
the lower court, ignoring the evidence of
record, denying that proof of government
activity in support of segregation even
existed.
Among the dissenting justices, Justice
Thurgood Marshall wrote a heartfelt
dissent. He noted: " The constitutional
violation found here was not some de facto
racial imbalance, but rather the purposeful,
intentional, massive de jure segregation
of Detroit schools. " He concluded with a
prescient warning: " Unless our children
begin to learn together, there is little hope
that our people will ever learn to live
together. "
The latter quote reminded me of the
Notre Dame Law School Dean's essay cited
in my Barrister column following the death
of George Floyd. Dean Cole, an African
American, wrote that we can end " the cycle
of hate by ending the separation that leads
to it...Each of us needs to get to know
people who differ from us. "
Rothstein seeks remedies for today's
separation. From my 1970 experience,
I believe Dean Cole's suggestion is a
worthy start. Beyond that, though,
how can we lawyers address the needs
of our community? I propose inviting
representatives of community groups-
Hispanic Center, NAACP Chapter,
landlords, realtors, school districts,
MidPenn Legal Services-to attend
an exploratory workshop hosted by the
Bar Association, identifying needs and
proposing remedies.
This Belleville native volunteers to serve
as moderator.
Mr. Smith is Executive
Director Emeritus of
the Berks County Bar
Association.
Summer 2021 | 31
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Berks County Bar Association The Berks Barrister Summer 2021

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