Legal Geographies of Racism and Capitalism in Keilee Fant v. City of Ferguson, Missouri

Teaching Law and Political Economy through Keilee Fant v. City of Ferguson, Missouri Part III

Angela Harris – 

In my second post on Fant v Ferguson, I highlighted the production of precarity through neoliberal state and market governance, and the crushing burden of this precarity on the poor. But the public-private creation and maintenance of precarity, of course, isn’t new. A third vantage point from which to consider Fant v Ferguson is legal geography: the way that racism and capitalism over time shape create and maintain physical spaces through processes of investment and disinvestment, development and underdevelopment, displacement and settlement. A key way into this story – as Audrey MacFarlane notes – is through the history of racial segregation in housing markets.

According to Richard Rothstein’s examination of the northern Missouri suburbs, the racial segregation of St. Louis began in 1916, when the city’s Realtors’ association sponsored a ballot referendum to prohibit blacks from moving onto blocks where at least 75 percent of existing residents were white (and whites from moving onto blocks where at least 75 percent were black). When the Supreme Court prohibited such practices in Buchanan v Warley, the city turned to race-neutral zoning. But St. Louis’s zoning practices did not create “separate but equal” black and white neighborhoods; the city’s zoning rules actually debilitated black neighborhoods. The result is neighborhoods David Dante Troutt calls “anti-markets,” to indicate the choice to deliberaly under-invest in social and economic institutions. As Rothstein writes:

Not only were [black] neighborhoods zoned to permit industry, even polluting industry, but taverns, liquor stores, nightclubs, and houses of prostitution were permitted to locate in African American neighborhoods, but prohibited as violations of the zoning ordinance in residential districts elsewhere. Houses in residential districts could not legally be subdivided, but those in industrial districts could be, and with African Americans restricted from all but a few neighborhoods, rooming houses sprung up to accommodate the overcrowded black population. Once the Federal Housing Administration (FHA) was established during the New Deal, these zoning practices rendered African American homes ineligible for mortgage guarantees, because FHA underwriting principles considered “inharmonious uses” of neighboring properties to threaten the security of property value. But such homes were eligible a quarter century later for slum clearance with urban renewal funds, zoning practices having made them unfit for habitation.

Short versions of this story focus on the work of the Home Owners’ Loan Corporation (HOLC), a New Deal agency that refinanced mortgages for over a million struggling homeowners in the midst of the Great Depression. HOLC sent out assessors who rated neighborhoods based on several factors: housing stock, sales and rental rates, physical attributes of the terrain, and “threat of infiltration of foreign-born, negro, or lower grade population.” Race and class segregation was one of its guiding principles. A 1936 HOLC underwriting manual provides, “If a neighborhood is to retain stability it is necessary that properties shall continue to be occupied by the same social and racial classes. A change in social or racial occupancy generally leads to a reduction in values.” Working with realtors, HOLC developed a series of municipal maps that established where banks would and would not make residential mortgage loans. This practice continued throughout the 1940s and 1950s, as the United States postwar economy boomed and suburbs were built. So-called “redlining” – the practice of rating neighborhoods for mortgage purposes based on race – limited African American home buyers to black neighborhoods, and downgraded property values in racially integrated neighborhoods. It also gave white people a powerful incentive to keep their neighborhoods white, for fear of falling property values, and it created opportunities for profitmaking through blockbusting, steering, and “urban renewal” projects which used eminent domain to commandeer historically black neighborhoods for infrastructure development (known sardonically by black people as “Negro removal”).

This market in racial panic and exclusion, aided and abetted by zoning law, is in fact a central reason why there are so many tiny municipalities in the St. Louis area in the first place. According to the Washington Post, “As the courts struck down the more blatant discriminatory policies like restrictive covenants and explicit segregation, whites engaged in what you might call a pattern of zone and retreat. . . .Developers would create new subdivisions outside a city. White people would move in. As black families moved north and west of the city, these subdivisions would try to keep them out by zoning themselves as single-family housing only. That barred the construction of public and low-income housing. . . .As black families moved out from the city and slowly infiltrated white towns, new white developments would spring up further out still, incorporate, and zone to keep the black population at bay. Blacks would move into those towns too, and the process would repeat itself.”

The present-day legal geography of Ferguson was shaped by a complex interaction of state policies and market behavior. And as this story indicates, neither government nor economic actions were ever colorblind. Indeed, the 1916 Realtors’ initiative is not the beginning of racialized space in St. Louis. Anders Walker observes that the city of St. Louis and its surrounding county split over slavery. In his account, in the 1850s Missouri citizens were deeply divided on issues of slavery and regional loyalty. In 1861, Governor Claiborne Jackson, a supporter of slavery and secession, seized St. Louis in a “military-style coup, presenting the people of Missouri with a sudden, surprise marriage to the slave South.” The coup was beaten back by the Union Army, but Jackson responded by moving the state capital to Arkansas and joining the Confederacy, completing Missouri’s secession from the Union. In response, pro-Union forces “declared Jackson a traitor and established their own, separate government at Jefferson City, accepted by Lincoln.” Following the War, the now pro-Republican St. Louis County and the Democratic St. Louis city legally parted ways, achieving separation in 1877.

The story of slavery and Jim Crow is often understood within the narrow frame of illogical interpersonal prejudice. (Indeed, that’s the frame promoted by a majority of today’s Supreme Court justices.) But these institutions of slavery, segregation, and incarceration were never just about conscious enmity against people based on the color of their skin, but also about the markets made possible by the denial of full citizenship to certain populations. As Emma Jordan argued in the Economic Justice seminar we taught together, the subprime mortgage crisis represents just one of the latest, and most catastrophic, innovations of racial capitalism.

Moreover, racial capitalism shapes the spaces in which we live, work, and play. An exercise I sometimes do with students is to ask them to think about the communities in which they grew up. What were the “nice” neighborhoods, and what were the “bad” neighborhoods? Even students who adamantly insist that they were raised not to “see race” and that their friendship networks have always been diverse find themselves able to access their childhood and adolescent cultural maps, complete with the “invisible lines” that structured their daily lives. “Nice” and “sketchy” are shorthand for the patterns of racialized investment and disinvestment that spatialize social inequality. Fant v. Ferguson is a way into this conversation, as well.

Angela Harris is the Distinguished Professor of Law, Boochever and Bird Endowed Chair for the Study and Teaching of Freedom of Equality at UC Davis School of Law. 

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