Vista City Council
August 9, 2022

For example, Oakland’s San Antonio
neighborhood, the most racial-
ly diverse in the city and one of the
densest parts of the Bay Area, sees the
Bay Area Rapid Transit (BART) train
travel for nearly three miles without
stopping . 219 By contrast, in subur-
ban Walnut Creek and Pleasant Hill,
which are less than half as dense,
BART stations are only 1 ¾ miles
apart . 220 In the late 1960s, BART was
“literally designed” to hurry white
suburban commuters past Black
The image on the left shows a redlining map of Los Angeles, CA made by the Home Owners Loan Corporation during the 1930s. The red portions are non-white neighborhoods deemed by the federal agency to be a credit risk. The map on the right shows the Center for Disease Control’s Social Vulnerability Index scores for census tracts today. The Social Vulnerability Index is widely used to assess a community’s capacity to prepare for, respond to, and recover from human and natural disasters. The red portion indicates the highest level of vulnerability to disasters.

COURTESY OF “NOT EVEN PAST: SOCIAL VULNERABILITY AND THE LEGACY OF REDLINING”/ HTTPS://DSL.RICHMOND.EDU/SOCIALVULNERABILITY

260
Chapter 7 Racism in Environment and Infrastructure inner-city neighborhoods and residents .” 221 This pur- poseful decision by the government left Black residents without the same transit options to reach jobs, and lim- ited economic mobility and opportunity . 222
In Oakland, a $484 million elevated “people mov-
er,” which connects BART to the airport, lost federal
funding because it was found to have a discriminatory
impact; its construction led to the elimination of a bus route in the minority neighborhoods it bypasses . 223
But, though the project lost federal funding, it still
went ahead, and the Oakland neighborhood still lost
its bus line . 224
Finally, although the disparities between Black and white residents in terms of raw internet access in California is much smaller than nationally, 225 research has shown that Black neighborhoods in both Los Angeles and
Oakland had the least investment in broadband inter-
net in those cities . 226
VI . Conclusion
The various forms of environment and infrastruc-
ture-related discrimination suffered by African
Americans in this country are rooted in the badges and
incidents of slavery that have never been eliminated in this country . Black enslaved persons were released from bondage and forced into unhealthy, dangerous, and
overcrowded housing, located in the most toxic areas
in our cities, which also lacked proper water and sew-
age services . Residential segregation and government
decisions regarding modern infrastructure develop-
ment reinforced these patterns throughout the 20th
century . African Americans have been denied equal ac-
cess to telecommunication services, and are increasingly subjected to “algorithms” and other forms of comput-
erized decision making with racist underpinnings and
outcomes . These racist systems have harmed and will
continue to harm African Americans .

Afton, NC– Black and white protesters march against a toxic waste dump in Warren County. The site was chosen because most of its residents were Black and poor. (1982)

COURTESY OF BETTMANN VIA GETTY IMAGES

THIS PAGE INTENTIONALLY LEFT BLANK

262
Chapter 7 Racism in Environment and Infrastructure Endnotes
1 See, e .g ., Lockett, How Lead Poisoning
Disproportionately Affects Black Communities
(Feb . 7, 2022) Healthline (as of Apr . 7,
2022); Haslam, Lead Poisoning (2003) 8
Paediatrics & Child Health 8, pp . 509-10 .
2 Krieger and Higgins, Housing and Health:

Time Again for Public Health Action (2002)
92 Am . J . of Public Health 5, pp . 758-768 .
3Jackie Botts and Bénichou, The
Neighborhoods Where COVID Collides
with Overcrowded Homes (June 12, 2020)
Cal Matters (as of Apr . 7, 2022) .
4 CalEPA, Pollution and Prejudice: Redlining
and Environmental Injustice in California
(Aug . 16, 2021) CalEPA (as of Apr . 7, 2022) .
5 Hoffman et al, The Effects of Historical
Housing Policies on Resident Exposure
to Intra-Urban Heat: A Study of 108 US
Urban Areas 8 Climate 2020 1, pp . 1-3 .
6 Id . at p . 11 .
7 Rothstein, The Color of Law (2017) pp .
vii-xvii; Taylor, The Environment
and the People in American Cities,
1600s-1900s (2009) pp . 153, 179-180,
183; see also Carter, From Exclusion to
Destitution: Race, Affordable Housing, and
Homelessness (2011) 13 Cityscape 1, p . 37 .
8 Taylor, The Environment and the People in
American Cities, 1600s-1900s
(2009) pp . 60 . 173, 208 .
9 Id. at pp . 210, 280 .
10 Id . at pp . 173, 210, 280 .
11 Jacobs, Environmental Health Disparities in
Housing (2011) 101 Am . J . of
Public Health, pp . S115–S12
12 Roller et al ., Closing the Water Access Gap
in the United States (2019) Dig Deep
and U .S . Water Alliance, p . 22 .
13 Jacobs, supra .
14 Office of Policy Development and
Research, Measuring Overcrowding in
Housing (2007) U .S . Dept . of Housing
and Urban Development pp . 4, 18 .
15 Haslam, supra; Tong et al, Environmental
Lead Exposure: A Public Health Problem of
Global Dimensions (2000), 78 Bulletin of
the World Health Organization 9, p . 1071 .
16 Tong, supra at pp . 1068-69 .
17 World Health Organization,
WHO Housing and Health Guidelines (2018)
pp . 25-27 (hereafter WHO Housing
and Health Guidelines) .
18 Ahmad et al ., Association of Poor Housing
Conditions with COVID-19 Incidence
and Mortality Across US Counties
(2020) 15 PLoS ONE 11 .
19 WHO Housing and Health Guidelines,
supra, at pp . 27-29 .
20 W .C . Regoeczi, Crowding in Context: An
Examination of the Differential Responses
of Men and Women to High-Density Living
Environments (2008) 125 J . of Health &
Social Behavior, pp . 254-68; Regoeczi,
When Context Matters: A Multilevel Analysis
of Household and Neighborhood Crowding on
Aggression and Withdrawal (2003) 23 J . of
Environmental Psychology 4, pp . 457-70 .
21 Earle Chambers et al ., The Link between
Housing, Neighborhood, and Mental
Health (Apr . 24, 2014) MacArthur
Foundation (as of Apr . 7, 2022) .
22 Solari and Mare, Housing Crowding
Effects on Children’s Wellbeing (2012) 41
Social Science Research 2, pp . 464–476 .
23 Ibid .
24 Ibid .
25 Ibid .; see also Cimini and Botts, Close
Quarters: California’s Overcrowded
Homes Fuel Spread of Coronavirus
Among Workers (June 12, 2020) Cal
Matters (as of Apr . 7, 2022) .
26 Goux and Maurin, The Effect of
Overcrowded Housing on Children’s
Performance at School (2005) 89 Journal
of Public Economics, p . 809 .
27 Solari and Mare, supra .
28 Evans et al ., Residential Density and
Psychological Health among Children
in Low-Income Families (2001) 33
Environment and Behavior 2, p . 174 .
29 Makinde et al ., Overcrowding as a Risk
Factor for Domestic Violence and
Antisocial Behaviour among Adolescents
in Ejigbo, Lagos, Nigeria (2016) 3
Global Mental Health 16 .
30 Cant et al ., Overcrowded Housing: One of
a Constellation of Vulnerabilities for
Child Sexual Abuse (2019) 93 Child
Abuse Neglect, pp . 239-248 .
31 Office of Health Equity, Housing
Overcrowding (Dec . 2018) Cal . Dept .
of Public Health (as of Apr . 7, 2022) .
32 Rothstein, The Color of
Law (2017) pp . 5-6 .
33 Ibid .
34 Ibid .
35 Kate Cimini and Botts, supra (noting
that West Adams, a mostly Black and
Latino neighborhood of Los Angeles,
has much higher rates of over-
crowding and of COVID-19 cases) .
36 Jackie Botts and Bénichou, supra .
37 Taylor, supra at p . 503 .
38 CalEPA, supra .
39 Ibid .
40 Ibid .
41 Ibid .
42 Ibid .
43 See, e .g ., Munguia, Environmental
Racism: Why Long Beach Residents of Color
Have Worse Health Outcomes (Mar . 8, 2021)
Press Telegram (as of Apr . 7, 2022) .
44 Tabuchi and Popovich, People of Color
Breathe More Hazardous Air. The
Sources Are Everywhere (Apr . 28, 2021)
N .Y . Times (as of Apr . 7, 2022) .
45 Linda Villarosa, Pollution is Killing
African Americans. This Community
Fought Back. (July 28, 2020) New York
Times Magazine (as of Apr . 7, 2022) .
46 Ibid .
47 Ibid .
48 Rothstein, supra at p . 56 .
49 Ibid .
50 Bullard et al ., A Current Appraisal of Toxic
Wastes and Race in the United States in
Toxic Wastes and Race at Twenty 1987-2007
(2007) United Church of Christ, p . 58 .

263
Chapter 7 Racism in Environment and Infrastructure 51 Villarosa, supra .
52 Taylor, supra at pp . 99-100, 505-06 .
53 Ibid .
54 Ibid .
55 Garcia-Gonzalez et al ., Hazardous Air
Pollutants Associated with Upstream Oil
and Natural Gas Development: A Critical
Synthesis of Current Peer-Reviewed
Literature (2019) 40 Annual Review
of Public Health, pp . 283-304 .
56 Johnston et al ., Impact of Upstream Oil
Extraction and Environmental Public
Health: A Review of the Evidence (2019)
20 Sci Total Environ 657, pp . 187-199 .
57 Fleischman and Franklin, Fumes Across
the Fence-Line (Nov . 2017) Nat . Ass . for
the Advancement of Colored People
and Clean Air Task Force, p . 6 .
58 Klara Zwickl, The Demographics of
Fracking: A Spatial Analysis for Four
U.S. States (2019) 161 Ecological
Economics, pp . 202-215 .
59 Fleischman and Franklin, supra at p . 13 .
60 Id . at pp . 13, 16 .
61 Nikayla Jefferson and Stokes, Our Racist
Fossil Fuel Energy System (Jul . 17, 2020)
Boston Globe (as of Apr . 8, 2022);
Tabuchi, How One Firm Drove Influence
Campaigns Nationwide for Big Oil (Nov . 11,
2020) N .Y . Times (as of Apr . 8, 2022) .
62 Pratt et al ., Traffic, Air Pollution, Minority
and Socio-Economic Status:

Addressing Inequities in Exposure
and Risk (2015) 12 International J .
of Environmental Research and
Public Health 5, pp . 5355-5372 .
63 Ibid .; see also Apelberg et al .,
Socioeconomic and Racial Disparities in
Cancer Risk from Air Toxics in Maryland
(2005) 113 Environmental Health
Perspectives 6, pp . 693-699 .
64 U .S . Environmental Protection Agency,
Nitrogen Dioxide (NO2) Pollution: Basic
Information about NO2 (June 7, 2021)
U .S . Environmental Protection
Agency (as of Apr . 8, 2022) .
65 Clark et al ., Changes in Transportation-
Related Air Pollution Exposures by
Race-Ethnicity and Socioeconomic Status:

Outdoor Nitrogen Dioxide in the United
States in 2000 and 2010 (2017) 125
Environmental Health Perspectives 9 .
66 Tabuchi and Popovich, supra .
67 Muller et al ., Environmental Inequality:

The Social Causes and Consequences
of Lead Exposure (2018) 44 Annual
Review of Sociology, pp . 266-68 .
68 Sampson and Winter, The Racial Ecology
of Lead Poisoning: Toxic Inequality in
Chicago Neighborhoods, 1995-2013 (2016)
13 Du Bois Review: Social Science
Research on Race 2, pp . 261-28
69 Ibid .
70 Ibid .
71 Ibid .
72 Emily Benfer, Contaminated Childhood:

How the United States Failed to Prevent the
Chronic Lead Poisoning of Low-Income
Children and Communities of Color (2017),
41 Harv . Env . L . Rev . 494, pp . 504-05;
see also Sampson and Winter, supra .
73 Chicago Department of Public Health
& Loyola University Chicago Civitas
ChildLaw Center, Lead Safe Chicago: A
Plan to Eliminate Childhood Lead Poisoning
in Chicago by 2010 (June 30, 2004) .
74 Sampson and Winter, supra .
75 Chappelle et al ., Access to Safe Drinking
Water (Apr . 2021) Public Policy Institute
of California (as of Apr . 22, 2022) .
76 Lutz, Health Disparities Among African-
Americans (2022) Pfizer (as
of Apr . 22, 2022) .
77 Needleman et al ., The Long-Term Effects
of Exposure to Low Doses of Lead in
Childhood—An 11-Year Follow-up
Report (Jan . 11, 1990) 322 N Engl
J Med (as of Apr . 22, 2022) .
78 Rothstein, The Color of
Law (2017) pp . 5-6 .
79Pulido, Rethinking Environmental Racism:

White Privilege and Urban Development in
Southern California (2000) 90 Annals of
the Ass . of Am . Geographers 1, p . 21 .
80 CalEPA, Pollution and Prejudice, supra .
81 Kang, Looking Toward Restorative Justice
for Redlined Communities Displaced by
Eco-Gentrification (2021) 26 Mich . . J .

Race and L . 23, pp . 31-38; California
Task Force to Study and Develop
Reparation Proposals for African
Americans (Oct . 12, 2021), Testimony
of Helen Kang (as of Apr . 22, 2022) .
82 Kang, supra at pp . 31-34 .
83 Id. at pp . 31-32 .
84 Id. at p . 32 .
85 Ibid .
86 Id. at p . 33 .
87 California Task Force to Study and
Develop Reparation Proposals for
African Americans (Oct . 12, 2021),
Testimony of C.N.E. Corbin (as of Apr . 22,
2022); Corbin, In Red, Black, and Green:

The Political Ecological Eras of Oakland
from 1937-2020 (2022) (unpublished
draft manuscript provided by author) .
88 Corbin, supra at p . 11 .
89 Id. at p . 21 .
90 Anthony L . Nardone et al ., Associations
between Historical Residential Redlining
and Current Age-Adjusted Rates of
Emergency Department . Visits Due to
Asthma across Eight Cities in California:

An Ecological Study (Jan . 1, 2020) 4 The
Lancet Planetary Health 1, pp . e24–31 .
91Janet Wilson, California Has Largest
Number of Minorities Near Hazardous
Waste (Apr . 12, 2007) L .A . Times
(as of Apr . 26, 2022) .
92 Bullard et al, supra at p . 80 .
93 Rachel Morello-Frosch et al .,
Environmental Justice and Regional
Inequality in Southern California:

Implications for Future Research (Apr .
2002) 110 Environmental Health
Perspectives 2, pp . 149-154 .
94 Olalde and Menezes, The Toxic Legacy
of Old Oil Wells: California’s Multibillion-
Dollar Problem (Feb . 6, 2020) L .A .

Times (as of Apr . 26, 2022) .
95 Ibid .
96 Fleischman and Franklin, supra at p . 19 .
97 Sadasivam, Bay Area Regulators Just
Delivered on a Promise to Help Frontline
Communities Breathe Easier (Jul . 22,
2021) Grist (as of Apr . 26, 2022) .
98 Fleischman and Franklin,
supra at p . 20 .

264
Chapter 7 Racism in Environment and Infrastructure 99 See Nathan McClintock, Assessing Soil
Lead Contamination at Multiple Scales in
Oakland, California: Implications for Urban
Agriculture and Environmental Justice (2012);
Shahir Masri et al ., Risk Assessment of Soil
Heavy Metal Contamination at the Census
Tract Level in the City of Santa Ana, CA:

Implications for Health and Environmental
Justice (June 2021) 23 Environmental
Science Process Impacts 6, pp . 812-830 .
100 Fleischman and Franklin, supra at pp .
4, 14 .
101 Masri et al ., supra .
102 McClintock, supra at 460-61 .
103 Reichmuth, Inequitable Exposure to Air
Pollution from Vehicles in California
(Jan . 28, 2019) Union of Concerned
Scientists (as of Apr . 26, 2022) p . 1 .
104 Ibid .
105 Id . at pp . 6-7 .
106 Meng et al ., California’s Racial and Ethnic
Minorities More Adversely Affected by Asthma
(2007) UCLA Center for Health Policy
Research (as of Apr . 26, 2022) p . 6 .
107 Milet et al ., The Burden of Asthma in
California: A Surveillance Report (June
2007) Cal . Dept . of Health Services p . 5 .
108 Reichmuth, supra at p . 1 .
109Mazur et al ., Indicators of Climate
Change in California: Environmental
Justice Impacts (Dec . 2010) Off . of
Environmental Health Hazard
Assessment (as of Apr . 26, 2022) p . 6 .
110 Id . at p . 3 .
111 Id. at pp . 1, 3 .
112 Id. at p . 4; Cal . Dept . of Public Health,
Preparing California for Extreme Heat
(Oct . 2013) Cal . Dept . of Public
Health (as of Apr . 17, 2022) p . 8 .
113 Mazur et al ., supra at p . 2; see also
Anthony Rogers-Wright, Getting to the
Roots: Requisites for Climate Reparations
Powerpoint Presentation California
Task Force to Study and Develop
Reparation Proposals for African
Americans (October 12, 2021) p . 5 .
114 Hoffman, supra .
115 Ibid .
116 Ibid .
117U .S . U .S . Environmental Protection
Agency, Learn About Heat Islands (Sept .
2021) U .S . Environmental Protection
Agency (as of Apr . 26, 2022) .
118 Plumer and Popovich, How Decades of
Racist Housing Policy Left Neighborhoods
Sweltering (Aug . 24, 2020) N .Y . Times (as
of Apr . 26, 2022); Locke et al ., Residential
Housing Segregation and Urban Tree Canopy
in 37 US Cities (Mar . 25, 2021) 1 NPJ Urban
Sustainability 15 (as of Apr . 26, 2022) .
119 Hoffman, supra.
120 Ibid .
121 Tim Arango, “Turn Off the Sunshine”:

Why Shade Is a Mark of Privilege
in Los Angeles (Dec . 1, 2019) N .Y .

Times (as of Apr . 26, 2022) .
122 Ibid .
123 Flavelle, Climate Change Tied to
Pregnancy Risks, Affecting Black
Mothers Most (June 18, 2020) N .Y .

Times (as of Apr . 26, 2022) .
124 Arango, supra .
125 C .N .E . Corbin, Rendering Gentrification
and Erasing Race: Sustainable Development &
The (Re)visioning of Oakland, California as a
Green City, p . 17 (unpublished draft man-
uscript provided by author) (noting that
city documents portraying green revital-
ization plans for West Oakland “display
a different and more affluent whiter
population and a greener landscape,
thus a depiction of green gentrification
expressed in these municipal images”) .
126 Id. at 8 (noting that “Black and Brown
bodies [] can and have also been
rendered as trespassers, criminalized,
and met by state violence historical-
ly and currently when in parks .”) .
127 Kang, supra at pp . 31-34 . One dis-
placed resident put it follows: “When
you sit [in] a room full of poor folks
on one side and homeowners on the
other side, who are trying to bring all
of this . . . ‘greening’ into our areas .
. . And I’m saying, Good Lord! We’re
black, we’re not stupid .’” Id. at 34 .
128 Rachel Morello-Frosch et al, The
Climate Gap Report: Inequalities in How
Climate Change Hurts Americans & How
to Close the Gap (2009) USC Equity
Research Institute (as of Apr . 17, 2022) .
129 Ibid .
130 Off . of Health Equity, Cal . Dept . of
Public Health, Climate Change & Health
Equity: Issue Brief (May 2019) Cal . Dept . of
Public Health (as of June 17, 2021) p . 2 .
131 Arango, supra .
132 Ibid .
133 Off . of Health Equity, Climate Change
Issue Brief, supra at p . 2 .
134 Ibid .
135 Smith, How Communities of Color are
Hurt Most by Climate Change (June 7,
2021) Forbes (as of Apr . 22, 2022);
Chen et al ., Utilizing Smart-Meter Data
to Project Impacts of Urban Warming on
Residential Electricity Use for Vulnerable
Populations in Southern California (2020) 15
Environmental Research Letters 6, p . 6 .
136 Knowlton et al ., The 2006 California
Heat Wave: Impacts on Hospitalizations and
Emergency Department Visits (2009) 117
Environmental Health Perspectives 1
pp . 61-67; Basu and Ostro, A Multicounty
Analysis Identifying the Populations
Vulnerable to Mortality Associated with
High Ambient Temperature in California
(2008) 168 Am . J . of Epidemiology 6, pp .
632–637; Shonkoff et al ., The Climate Gap:

Environmental Health and Equity Impacts
from Climate Change and Mitigation Policies
in California—A Review of the Literature
(2011) 109 Climate Change, pp . 485-503 .
137 Tamar Meshel, Environmental Justice in
the United States: The Human Right to
Water (2018) 8 Wash . J . Env ironmen-
tal L . & Policy 264, pp . 270-72 .
138 Mich . Civil Rights Commission, The
Flint Water Crisis: Systemic Racism Through
the Lens of Flint (Feb . 17, 2017) Michigan
Civil Rights Commission, pp . 26-27 .
139 Id. at pp . 25, 28 .
140 Id . at pp . 56-57, 68-69 .
141 Denchak, Flint Water Crisis: Everything
You Need to Know (Nov . 8, 2018)
Natural Resources Defense
Council (as of Apr . 27, 2022) .
142 Merrit Kennedy, Lead-Laced Water In
Flint: A Step-By-Step Look at the

265
Chapter 7 Racism in Environment and Infrastructure Makings of A Crisis (Apr . 20, 2016)
NPR (as of Apr . 22, 2022) .
143 Ibid .; see also Del Toral, High Lead
Levels in Flint, Michigan – Interim Report
(June 24, 2015) U .S . Environmental
Protection Agency (as of Apr . 27, 2022) .
144 Kennedy, supra .
145 Ibid .
146 Kennedy, supra; Fonger, Flint Water Has
More Lead than 98 Percent of State, Despite
Snyder's Claim (Mar . 31, 2017) MLive-
The Flint Journal (as of Apr . 27, 2022) .
147 Kennedy, supra .
148 Booker, Ex-Michigan Gov. Rick Snyder
And 8 Others Criminally Charged
in Flint Water Crisis (Jan . 14, 2021)
NPR (as of Apr . 27, 2022) .
149 Ibid .
150 Montag, Water/Color: A Study of Race &
The Water Affordability Crisis in America’s
Cities (2019) , NAACP Legal Defense
and Educational Fund, Inc ., p . 7 .
151 Taylor, The Environment and the
People in American Cities,
supra at p . 270 .
152 Id. at p . 94 .; Montag, supra at p . 12 .
153 Taylor, supra at p . 94; Montag, supra at
p . 10 .
154 Taylor, supra at p . 94 .
155 Ibid .
156 Ibid .
157 Id.at p . 96 .
158 Montag, supra at p . 3 .
159 Van Syckle, Raw Sewage Flooded Their
Homes. They’re Still Waiting for Help (Apr .
15, 2021) N .Y . Times (as of Apr . 27, 2022) .
160 Ibid .
161 Eva Lyubich, The Race Gap in Residential
Energy Expenditures (June 21, 2020) The
Energy Institute at Haas Business School,
UC Berkeley (as of Apr . 27, 2022) p . 1 .
162 Drehobl, Lifting the High Energy Burden
in America’s Largest Cities: How Energy
Efficiency Can Improve Low-Income and
Underserved Communities (April 20,
2016) American Council for an Energy-
Efficient Economy (as of Apr . 27, 2022) .
163 Am . Council for an Energy-Efficient
Economy (ACEEE), Energy Burdens in
Los Angeles (Sept . 2020) ACEEE (as of
Apr . 27, 2022); Am . Council for an
Energy-Efficient Economy (ACEEE),
Energy Burdens in San Francisco (Sept .
2020) ACEEE (as of Apr . 27, 2022) .
164 Williams-Tack, From Redlining to
Restorative Justice: Anti-Black Racism and
Energy Insecurity Go Hand in Hand in
America (Feb 21 2021 Sierra: The Magazine
of the Sierra Club (as of Apr . 27, 2022) .
165 Kowalski, Racial Disparities Persist in
Electric Service. Is ‘Willful Blindness’ to
Blame? (July 1, 2020) Energy New
Network (as of Apr . 27, 2022) .
166 Pickens and Ballenger, This Pa. Law on
Utility Shutoffs Unfairly Impacts
Black and Brown People. It Must be
Repealed (Aug . 7, 2020) Pennsylvania
Capital-Star (as of Apr . 27, 2022) .
167 Sunter et al ., Disparities in Rooftop
Photovoltaics Deployment in the United
States by Race and Ethnicity (2019) 2
Nature Sustainability, pp . 71–76 .
168 See Access to Clean Mobility,
GRID Alternatives .
169 Thind et al ., Fine Particulate Air Pollution
from Electricity Generation in the US: Health
Impacts by Race, Income, and Geography
(2019) 53 Environmental Science &
Technology 23, pp . 14010-14019 .
170 Brenman, Transportation Inequity in the
United States: A Historical Overview
(July 1, 2007) American Bar
Association (as of Apr . 15, 2022) .
171 Ibid .
172 Ibid .
173 Douglass, My Bondage and My Freedom
(1855) Railroads and the Making of
Modern America (as of Mar . 24, 2022) .
174 Singer, No Right to Exclude: Public
Accommodations and Private Property
(1996) 90 Northwestern University
Law Review 1283 p . 60 .
175 Hall v . Decuir (1877) 95 U .S . 485 .
176 Ibid .
177 New Orleans & Texas Railway v. Mississippi
(1890) 133 U .S . 587; Plessy v.

Ferguson (1896) 163 U .S . 537 .
178 English, Why Did America Give Up on
Mass Transit? (Don’t Blame Cars.)
(Aug . 31, 2018) Bloomberg
CityLab (as of Apr . 27, 2022) .
179 Ibid .
180 Ibid .
181 Ibid .
182 Ibid .
183 Ibid .
184 California Task Force to Study and
Develop Reparation Proposals
for African Americans (Oct .
13, 2021), Testimony of Jacqueline
Jones (as of Apr . 25, 2022) .
185 King, Jr ., A Testament of Hope: The
Essential Writings and Speeches of
Martin Luther King, Jr . (1991) pp . 326–27 .
186 Sanchez et al ., Moving to Equity:

Addressing Inequitable Effects of
Transportation Policies on Minorities
(2003) Civil Rights Project at
Harvard University, p . 3 .
187 Ibid .
188 Spieler, Racism Has Shaped Public
Transit, and It’s Riddled with Inequities
(Aug . 24, 2020) Rice Kinder Institute for
Urban Research (as of Apr . 27, 2022) .
189 Ibid .
190 Ibid .
191 Ibid .
192 Ibid .
193 Austin, To Move Is To Thrive: Public
Transit and Economic Opportunity
for People of Color (Nov . 15, 2017)
Demos (as of Apr . 27, 2022) .
194 Ibid .; National Equity Atlas, Commute
Time: All Workers Should Have
Reasonable Commutes (2019) National
Equity Atlas (as of Apr . 27, 2022) .
195 Morgan, Can Variable Transit Fares
Increase Equity? (Jan . 28, 2019) Chicago
Policy Review (as of Apr . 27, 2022);
Brown, Fair Fares? How Flat and
Variable Fares Affect Transit Equity in
Los Angeles (2018) 6 Case Studies on
Transport Policy 4, pp . 765-773 .
196 Morgan, supra; Brown, supra .

266
Chapter 7 Racism in Environment and Infrastructure 197 Journeys, Through the Wire:

Understanding Inequality in
Household Telephone Access, 1960-
2010 (Nov . 25, 2016) Dartmouth
University (as of Apr . 27, 2022) .
198 Yousry, With Telemedicine On The Rise,
African Americans Risk Being Left Behind
(Mar . 1, 2021) WBAA (as of Apr . 27, 2022) .
199 California Task Force to Study and
Develop Reparation Proposals
for African Americans (January
27, 2022), Testimony of Vincent
Le (as of Apr . 27, 2022) .
200 California Task Force to Study and
Develop Reparation Proposals
for African Americans (January
27, 2022), Testimony of Yeshimabeit
Milner (as of Apr . 27, 2022) .
201 Ibid .
202 Ibid .
203 Ibid .
204 Alexandra, A Century Before Rosa Parks,
She Fought Segregated Transit in SF (Mar .
12, 2009) KQED (as of Apr . 27, 2022) .
205 Hall, Black Farmworkers in the Central
Valley: Escaping Jim Crow for a Subtler
Kind of Racism (Feb . 22, 2019)
KQED (as of Apr . 27, 2022) .
206 London et al ., The Struggle for Water
Justice in California’s San Joaquin Valley: A
Focus on Disadvantaged Unincorporated
Communities (Feb . 2018) UC Davis
Center for Regional Change, p . 10 .
207 Jose A . Del Real, How Racism Ripples
Through Rural California’s Pipes (Nov . 29,
2019), N .Y . Times (as of Apr . 22, 2022) .
208 Cowan and Del Real, Why Thousands of
Californians Don’t Have Clean
Drinking Water (Dec . 6, 2019), N .Y .

Times (as of Apr . 27, 2022) .
209 Ibid .
210 Taylor, supra at pp . 11
211 Ibid .
212 Jose A . Del Real, The Crisis Lurking in
Californians’ Taps: How 1,000 Water
Systems May Be at Risk (July 24, 2019)
N .Y . Times (as of Apr . 27, 2022) .
213 Office of Environmental Health
Hazard Assessment, Achieving the
Human Right to Water in California (Jan .
2021) Cal . Environmental Protection
Agency (as of Apr . 27, 2022) p . 8 .
214 Glickfeld et al ., The Human Right to
Water in Poor Communities of Color
(Jan . 19, 2021) UCLA, p . viii .
215 Id . at p . 18 .
216 ABC 7 News, Oakland's McClymonds High
School Safe to Return to, Months After
Chemical Scare, District Says (Oct . 16,
2020) ABC 7 News (as of Apr . 18, 2022) .
217 California Task Force to Study and
Develop Reparation Proposals
for African Americans (Dec . 7,
2021), Testimony of Bruce Appleyard
(as of Apr . 27, 2022) .
218 Ibid .
219 Spieler, supra .
220 Ibid .
221 Ibid .
222 Ibid .
223 Ramey, America’s Unfair Rules of the Road
(Feb . 27, 2015) Slate (as of Apr . 27, 2022) .
224 Ibid .
225 Gao and Hayes, California’s Digital
Divide (Feb . 2021) Public Policy Institute
of California (as of Apr . 27, 2022) .
226 Testimony of Vincent Le, supra .

THIS PAGE INTENTIONALLY LEFT BLANK

Pathologizing Black FamiliesCHAPTER 8
I . Introduction
Starting over 400 years ago, the federal and state gov- ernments of our country have decimated Black families,
both through their own official action and inaction,
as well as through creating and supporting systems in
which private actors enacted racist policies and prac-
tices . After the end of the legal enslavement of African Americans, the apprenticeship system and segregation
laws denied African Americans the stability and safety of the family unit . 1 In the past century, both financial as- sistance and child welfare systems have based decisions on racist beliefs about African Americans . 2
As a result, these government-run systems have ex-
cluded African Americans from receiving benefits and
targeted Black families for investigations of child mis- treatment and neglect . 3 Further, these structures have placed Black children in foster care systems at much
higher rates than white children . 4 Meanwhile, the crim- inal and juvenile justice systems have intensified these harms to Black families by imprisoning large numbers
of Black children, thereby separating Black families . 5 All of these actions have systematically worked to deny African Americans the opportunities to form stable,
supportive family structures, and have often further
stereotyped and blamed African Americans themselves
for resulting harms .

Section III of this chapter addresses the treatment—and decimation—of family structure among Black enslaved
persons during the slavery era of American history .

Section IV discusses the Black family from emancipa-
tion until the Civil Rights Era, during which government structures and policies empowered the continued en-
slavement of Black children, excluded both Black women
and Black men from healthy parenting relationships,
and continued to deny the legitimacy—both literal and
figurative—of Black marriages and children, so as to en- sure white wealth was not dispersed to them . Section V addresses the Moynihan Report, which largely blamed
the culture of Black families for the injustices faced by African Americans and proposed deeply problematic
solutions to remedy them . Section VI addresses direct
cash assistance welfare programs, from their overtly
racist origins through modern programs that continue
to systematically disadvantage impoverished Black fam-
ilies . Section VII lays out the history of the foster care

COURTESY OF DOROTHEA LANGE/LIBRARY OF CONGRESS
A migrant worker from the South and her baby on an Arizona cotton farm. Dorothea Lange. (c. 1940)

269
Chapter 8 Pathologizing Black Families
and other child welfare systems in America, discussing
the myriad ways in which that system further attacked the Black family and denied them resources afforded to other Americans . Section VIII addresses the criminalization of Black youth, who are targeted consistently both within
and outside of schools, further breaking families apart .

Section IX addresses issues relating to Black victims of domestic violence, who are doubted and excluded from
assistance in ways that many white victims are not .

II . Enslavement
Throughout the slavery era of American history, federal and state governments empowered and protected white
enslavers in their destruction of Black family structures by treating enslaved people as chattel, unworthy of fam- ily love, care, and support .

The Transatlantic Slave Trade and
Reproductive Slavery
As Frederick Douglass observed over 250 years ago,
“[g]enealogical trees do not flourish among slaves .” 6 The vast majority of the nearly 400,000 enslaved persons brought over from Africa were children or young adults, and more than a quarter were children . 7 Upon the arriv- al of enslaved people in the United States, private parties and state governments maintained no records of their
origins, replacing their names with those of their new
enslavers, names by which they were called throughout
their lives . 8 This erased an individual’s identity, severed them from their family, and made it extremely difficult for them to find each other after emancipation . 9 See Chapter 2, Enslavement, for more detailed information
about this process .

Federal and state governments passed laws that protect- ed enslavers’ ability to destroy Black families and use Black women and their children as a way to increase the wealth of enslavers . Before 1662, English law governing the American colonies held that children of enslaved
fathers were enslaved, but the child of enslaved women
and white male enslavers were free persons upon their
birth, thereby entitling them to the full protection of the law . 10 This changed in 1662, when the colonial gov- ernment of Virginia passed a law stating that all children born to enslaved mothers were enslaved themselves, re-
gardless of whether or not the father was white, Black, enslaved, or free . 11 This law created a new source of wealth as enslavers used these children to settle debts, pass on a larger inheritance, or otherwise enrich them- selves . 12 The doctrine underlying
this law became known as “partus
sequitur ventrem,” Latin for “that
which is brought forth follows the
womb .” 13 It was adopted in laws by
virtually all other states in which
enslavement was legal . 14
The United States outlawed traf-
ficking enslaved people into the
country in 1807 . 15 The only legal way
to increase the number of enslaved
people and free labor for the American economy was
therefore through domestic birth of new enslaved per-
sons . This created a financial incentive for impregnating Black women and girls and carrying the pregnancies to
term . 16 Historians have found evidence that enslavers raped Black women and forced them to birth children
to create more enslaved people and further enrich
their enslavers . 17
Professor Daina Ramey Berry has argued that this sexual slavery served to provide great benefits to both govern- ment and private actors within both the southern and
northern states . 18 The labor of Black enslaved people created wealth for their enslavers, sustained cotton pro- duction and other private industries, and paid state and local taxes across the country . 19 In the North, maritime industry, merchants, textile manufacturers, and even
consumers of cheap cloth were all dependent on the
southern cotton plantation economy, which was based
on the sexual slavery of Black women and men 20 and the destruction of Black families . 21 Professor Berry argues that enslavers focused on the fertility of young Black
women during slave auctions, and that early childbirth
was considered to be a valuable skill, like housekeeping and clothes-mending . 22 Enslavers considered the birth of enslaved infants not with humanity, but “appraised”
them with a monetary value, one that typically increased as they aged . 23
Enslavers and state governments maintained no records of the origins of enslaved Africans, and replaced their names with those of their new enslavers. This erased their identity, severed them from their family, and made it extremely difficult for them to find each other after emancipation.

270
Chapter 8 Pathologizing Black Families
Marriage Between Enslaved People
American governments prohibited or did not recognize
marriage between enslaved people . Across the south-
ern enslaving states, enslaved persons were generally
prohibited by law from entering any legally-binding
marriage . 24 Abolitionist William Goodell described
the way that American law treated
the families of enslaved people in
1853 as: “The slave has no rights . Of
course he, or she, cannot have the
rights of a husband, a wife . The slave
is a chattel, and chattels do not mar-
ry . ‘The slave is not ranked among
sentient beings, but among things,’
and things are not married .” 25
Tennessee was the only enslaving
state that allowed for marriage be-
tween enslaved persons, but the law
required consent of the enslavers for the marriage to
be valid . 26 Because enslaved persons were not consid- ered to be human beings under the law, they could not
enter into legal contracts . 27 Therefore, enslaved people could neither own nor transfer property, which is what
American law recognized their husbands, wives, and
children to be . 28
The North Carolina Supreme Court in 1858 said: “The
relation between slaves is essentially different from that of man and wife joined in lawful wedlock,” because “with slaves it may be dissolved at the pleasure of either party, or by the sale of one or both, dependent upon the ca-
price or necessity of the owners .” 29
Their condition was compatible only with a form of
concubinage, “voluntary on the part of the slaves, and
permissive on that of the master .” 30
These attitudes and legal mandates were not limited
to the South . One notable example is the case of Basil Campbell, who at the time of his death in 1906 was one
of the wealthiest Black men in California . 31 He arrived to California from Missouri in 1854 as an enslaved per- son, forcibly removed from his wife and two children,
who never saw him again . 32 After his death, his two
adult sons from his marriage in Missouri sued to seek
their inheritance, leading three different courts, in-
cluding the California Supreme Court, to reject their
claims . 33 Indeed, one appellate court held—nearly 50 years after the legal emancipation of enslaved African
Americans—that describing Campbell’s marriage to his
enslaved wife as a marriage would make a “mockery” of
the institution . 34
Interracial Marriage
Laws prohibiting interracial marriage, known as an-
ti-miscegenation laws, devalued Black families . The
earliest known anti-miscegenation law, passed in 1661
in the Colony of Maryland, stated that a white woman
who married a Black man became an enslaved person
herself . 35 Other colonies followed suit to prohibit inter- racial marriage during slavery . 36 However, from slavery through the era of legal segregation, American society ac- cepted white men having sex with Black women—whether
consensual or rape—especially when those women were
treated as the property of white men . 37 The children of these interracial interactions were typically enslaved and could not inherit their white father’s wealth . 38
Fears of interracial marriage often led to violence . In 1834, a false rumor that abolitionist ministers had mar- ried an interracial couple led to 11 days of racial terror in New York City . 39 Mobs attacked a mixed-race gather- ing of the American Anti-Slavery Society and destroyed
Black churches, homes, schools, and businesses, as well as the homes and churches of leading abolitionists . 40 A similar incident occurred in Philadelphia in 1838 . 41
Punishments for interracial marriage varied by state, but in many states prior to the Civil War, white Americans
were punished more often than African Americans, at
least within the legal system . 42 Scholars have argued that this reflects anti-Black racist attitudes that, depending on the circumstance, Black people were sometimes con-
sidered “too irresponsible and too inferior to punish”
and “it was whites’ responsibility to protect the puri- ty of their own bloodlines .” 43 Punishments for African Americans, however, were still severe, including whip-
pings, fines, exile, or even enslavement if they were free at the time of their violation of the law . 44 Although it is unclear how often anti-miscegenation laws were en-
forced, evidence suggests that they were used to make
examples of high-visibility interracial couples, who were considered a threat to public order . 45
The North Carolina Supreme Court in 1858 said: “The relation between slaves is essentially different from that of man and wife joined in lawful wedlock,” because “with slaves it may be dissolved at the pleasure of either party, or by the sale of one or both, dependent upon the caprice or necessity of the owners.”

271
Chapter 8 Pathologizing Black Families
Parent-Child Relationships
Enslavement treated enslaved African Americans as
replaceable property, so enslavers separated children
from their parents if it was profitable to do so, and some- times in order to discourage potential rebellion . This was justified by the enslavers in various ways . For exam- ple, Thomas R .R . Cobb, a legal scholar who drafted parts of the Georgia legal code of 1861, 46 claimed that the Black mother “suffers little” when her children are stolen from her, since she lacked maternal feelings . 47 Cobb helped write principles of white supremacy into Georgia law,
including a provision that presumed African Americans
were enslaved unless proven otherwise . 48
From their birth, enslaved children were considered
property of the enslaver, and therefore enslavers con-
trolled a child’s life and upbringing . 49 From the time of birth, enslavers stripped away parental rights, often not allowing the birth parents to choose the newborn’s
name . 50 Very soon after giving birth, enslaved mothers were expected to return to work and leave their children with extended family members or an older enslaved
woman who was assigned the role
to watch over children on the plan-
tation . 51 Even if an enslaved parent
had some control over their child’s
life, the enslaver held the highest
authority and could make final de-
cisions as to who would take care of
the child, what activities they par-
ticipated in, or whether they would
be separated from their family by
selling the parent or child to a dif-
ferent enslaver . 52 As a result of many
children and parents being separat-
ed through chattel sales, orphaned
children were often adopted and
cared for by friends, extended
family, or the enslaved commu-
nity as a whole . 53 This approach
of allowing white strangers, aided
by laws and government actors, to
take a Black child from their family
is echoed after enslavement via the apprenticeship sys- tem and by the modern foster care system, as discussed
further below .

Enslaved children typically received no formal educa-
tion and were expected to work as soon as they were
physically able, forced to work in
the fields as young as eight . 54 They
often worked in a similar capacity
as the adults, working fields, tend-
ing animals, cleaning and serving in
their enslavers’ houses, and taking
care of younger children . 55 State law
legally entitled enslavers to separate
enslaved parents and children at
any time, and to relocate them at
different plantations at the time of
the child’s birth . 56 In some southern
states, approximately one-third of enslaved children
were separated from one or both parents . 57
Harriet Mason, an enslaved women forced to separate
from her family at age seven, related that she “used
to say I wish I’d died when I was little .” 58 Members of a family could be separately sold as enslavers fell into debt or wanted to raise profits . 59 In some parts of the South, a Black enslaved person had a 30 percent chance
of being sold in his or her lifetime . 60 A quarter of trades of enslaved persons across state lines destroyed a first marriage, while approximately half destroyed a nuclear
family by separating immediate family members . 61
Opponents of slavery, including those in the federal gov- ernment, recognized how it destroyed the families of
State law legally entitled enslavers to separate enslaved parents and children at any time, and to relocate them at different plantations at the time of the child’s birth. In some southern states, approximately one-third of enslaved children were separated from one or both parents.

COURTESY OF CULTURE CLUB VIA GETTY IMAGES
The Separation of Mother and Child. (1852)

272
Chapter 8 Pathologizing Black Families
African Americans . Advocating for the elimination of slav- ery, U .S . Senator James Harlan of Iowa stated that slavery effected “the abolition practically of the parental relation, robbing the offspring of the care and attention of his par- ents[ .]” 62 Scholars argue that the anguish caused by the threat of family separation coerced enslaved people into working without complaint . 63 The horrors of family sepa- ration during slavery were highlighted by abolitionists as a central strategy to enlist people to their cause . 64 Near the end of the slavery era, in the 1850s, some southern states responded to public horror at child separation by passing laws prohibiting the taking of infants from their enslaved mothers . 65 Modern scholars analyzing this development have argued that these laws were not passed out of con- cern for African Americans, but to assuage public outrage in order to maintain slavery . 66
Extended Family Kinship Structures
In order to cope with the destruction of their nuclear
family, enslaved people created deep, extended sup-
portive relationships with other enslaved people . 67
Some historians have argued that the extended kinship
structures of Black enslaved people mirrored similar
structures in their native West African homelands . 68 The role of Black grandparents, other extended relatives,
and older Black caregivers who were not biological-
ly related took on particular importance, 69 with Black grandmothers often serving as a central figure within a plantation ensuring the care of all children of enslaved parents who were sold to other enslavers, killed, or
otherwise removed from their nuclear families . 70 The reliance of Black mothers and African Americans on
extended kinship networks was a necessity for mere sur- vival, beginning in the slavery era and continued through legal segregation and other forms of discrimination . 71 Early Black historians argued that the legacy of slav-
ery created “disorganization and instability” in Black
families for generations . 72 In 1899 and again in 1909, prominent sociologist and social critic W .E .B . Du Bois published detailed, fact-driven analyses of Black fam-
ilies, demonstrating the many ways in which a lack of
economic means and opportunities after the end of slav- ery harmed Black families in both the North and South . 73 In 1932, sociologist E . Franklin Frazier argued that Black families had particular difficulty adapting to the drastic changes of the early 20th century due to the way that
enslavement destroyed Black families and traditions . 74 As discussed further below, these resulting harms have
been used throughout American history to claim that
the Black family itself was to blame because it was dys- functional by its nature .

III . Black Families from Emancipation to the
Civil Rights Era, 1865 to 1960
After slavery, states and private actors continued to
discriminate against Black families, particularly with re- spect to the dominant gender norms of the time . Before the women’s liberation movement of the late 1960s re-
defined the role of women in society, 75 women were
expected to take care of children and the home . 76 Only men were expected to participate in the public sphere . 77 For Black women, these expectations imposed impossi-
ble burdens . Black women were expected to be mothers
and wives, but white society expected Black women to be their servants and workers . 78 Black women attempted to do both, which took a great emotional and physical toll on Black women and, in turn, their families . 79
For Black men, traditional gender roles dictated that they must dominate and lead, acting as the head of the family . 80 Under these norms of masculinity, society expected men
to be stoic figures, enduring all injury without emotion Red Cross Relief, drought of 1930-31. African American family of 9. (c. 1930)

COURTESY OF THE LIBRARY OF CONGRESS

273
Chapter 8 Pathologizing Black Families
or complaint . 81 These expectations, too, demanded the impossible from Black men, as society expected them to
accept the indignities of discrimination without com-
plaint . 82 When Black men responded
to discrimination in anger—one of
the few emotions society expected
of and allowed for men to exhibit—
Black men were criminalized and
treated as threats, feeding the ste-
reotypes imposed upon them . 83 This,
too, has taken a toll on Black men
and their families . 84
Black Parenthood
During this time, prevailing gender
norms defined fathers as bread-
winners and mothers as caretakers
at home . 85 But racial discrimina-
tion combined with these gender
expectations to place heavier burdens on Black families and Black parenthood . As described in greater detail in Chapter 10, Stolen Labor and Hindered Opportunity,
government and private actors discriminated against
Black men seeking employment, restricting them to
ill-paid menial jobs and limiting their ability to earn income to support their families . 86 At times, this re- quired Black men to direct their children to work to
ensure that the family could survive . 87 Black children, therefore, often could not pursue schooling or their
own goals and dreams . 88
Because discrimination limited Black men’s employ-
ment opportunities, Black women also had to seek work
to supplement the family’s income even where white
women did not . 89 This required Black women to play the social roles of both men and women, taking care of chil- dren and the household while working jobs at the same
time . 90 The Freedmen’s Bureau, a government agency
established to aid the transition of enslaved people to freedom, singled out Black women as subset of poor
women who were supposed to work rather than remain-
ing at home . 91 For example, South Carolina Freedmen’s Bureau agent John de Forest criticized the “myriads of
[Black] women who once earned their own living [who]
now have aspirations to be like white ladies and, instead of using the hoe, pass the days in dawdling over their
trivial housework[ .]” 92
As a result, a higher percentage of Black married women worked than their white counterparts . 93 This systemat- ically denied Black children the care of their mothers
when compared to white children whose mothers could
more often choose to stay home and provide care . 94
Later in the 20th century, Black women were generally
precluded from taking public-facing retail jobs or pro- fessional secretarial work with traditional nine-to-five work schedules . 95 Instead, typically they were only given opportunities to serve as domestic caregivers and maids, often living in the homes of their white employers and
on call at all hours . 96 These domestic service jobs took the individual work of caring and mothering from Black
families and gave it to the children of white families, often preventing Black mothers from even living with
their children . 97
Black women were generally precluded from taking public-facing retail jobs or professional secretarial work with traditional nine- to-five work schedules. Instead, typically they were only given opportunities to serve as domestic caregivers and maids, often living in the homes of their white employers and on call at all hours.

These domestic service jobs took the individual work of caring and mothering from Black families and gave it to the children of white families, often preventing Black mothers from even living with their children.
(1899)
COURTESY OF JOHN H. TARBELL/LIBRARY OF CONGRESS/CORBIS/VCG VIA GETTY IMAGES

274
Chapter 8 Pathologizing Black Families
Interracial Marriage
Anti-miscegenation laws continued after the end of
enslavement . When the Fourteenth Amendment was
ratified, it was not considered to prohibit laws banning interracial marriage so long as the laws applied equally to both races . 98 In 1883, the Supreme Court upheld the constitutionality of laws outlawing interracial marriage, and state courts followed suit through the mid-20th
century . 99 Members of Congress also tried—unsuccess- fully—to ban interracial marriage nationwide through
legislative proposals made in 1871, 1912, and 1928 . 100 Eventually, a total of 38 states established such laws . 101 Many scholars argue that the white-dominated state
governments passed anti-miscegenation laws to prevent
African Americans—enslaved or otherwise—from ac-
cumulating wealth, in addition to controlling women’s
sexuality . 102 In America’s earliest days, white colonists were also concerned with possible mixing of African
Americans and Native Americans, given that an alliance
of both groups might provide sufficient strength to rise against slavery and other forms of economic oppression . 103 The most direct concern was a passing on of white
wealth to interracial offspring through inheritance or
probate laws, undermining race-based social stratifi-
cation . 104 Children of legally-unrecognized interracial marriages were almost always excluded from economic
benefits they would have received if their parents were both white . 105 The children were legally considered “bas- tards,” and had no claim to the estates of their biological fathers, nor could the man or woman in such a “void”
marriage claim alimony, child support, death benefits,
or any inheritance . 106
White relatives also had a strong motivation to ensure
these statutes were strictly and aggressively enforced, since a sibling who might inherit nothing on the death
of a married brother or sister could inherit that sib-
ling’s wealth by proving that the sibling’s spouse was
Black, and that the marriage was therefore void . 107
Anti-miscegenation laws continued to deny economic
benefits—especially in probate, i .e ., a judicial process whereby a will is “proven” in court—to African Americans who would have otherwise received them, since, by op-
eration of law, assets of those who died without wills
would be inherited by spouses . 108
Government officials and white militants enforced
bans on sexual intimacy between Black men and white
women with particular intensity due to the overlapping
aims of maintaining racial hierarchy and policing white women’s bodies . 109 The Ku Klux Klan, an all-male group, claimed one of its purposes was to treat white women
as the “special objects of [its] regard and protection .” 110 Nevertheless, they abused, raped, and mutilated white
women who fraternized with Black men . 111
This also meant that Black men were special targets for violence after any interactions with white women . In
Alabama in 1929, for example, Elijah Fields, a 50-year- old Black man, and Ollie Roden, a 25-year-old white
woman, were both arrested and tried for violation of
the state’s anti-miscegenation law, which also prohib-
ited cohabitation . 112 An Alabama jury convicted Fields even though Roden’s father testified that he had only
asked Fields to drive his daughter,
who was incontinent and suffering
from open sores, from a hospital to
a boardinghouse . 113 The state sen-
tenced Fields to two to three years
in prison, although it was later re-
versed on appeal . 114
In 1967, in Loving v. Virginia, the
U .S . Supreme Court finally struck
down all anti-miscegenation laws
as unconstitutional . 115
Continued Enslavement of Black Children
Through Apprenticeship
The so-called “apprenticeship system” was a system that existed both before and after the Civil War under which state and local governments, through court decisions
and agency actions, removed Black children from their
families and placed them in the control of white adults who sometimes forced them to work without pay . 116 This system had existed in some form since the late 1700s,
including when enslavement of Black children was le-
gal . 117 However, even during the slavery era, it was used to exploit the labor of free Black children, including in enslaving states . 118 For example, records reveal that in 1857 a three-year-old free Black boy named Charles Bell was bound to an apprenticeship in Frederick County,
Maryland, until the age of 21, through an agreement
between local county officials and Nathanial C . Lupton, which makes no mention of his parents . 119
Immediately after emancipation, former enslavers continued to exploit children, both sexually and as a cheap source of labor, through the apprenticeship system. Enslavers refused to free children when their parents were freed, either through apprenticeship laws or through outright kidnapping.

275
Chapter 8 Pathologizing Black Families
Immediately after emancipation, former enslavers con-
tinued to exploit children, both sexually and as a cheap source of labor, through the apprenticeship system . 120 Enslavers refused to free children when their parents
were freed, either through apprenticeship laws or
through outright kidnapping . 121 Former enslavers peti- tioned state courts to remove Black children from their families based on apprenticeship laws . 122 These laws often allowed former enslavers to gain legal custody of Black children simply by claiming their parents were in- capable of financially supporting them . 123 In addition to the trauma of losing a child, Black families often suffered substantial economic harm since farming families relied upon children to assist in agricultural work . 124
This apprenticeship system controlled Black girls un-
til they were 18 and Black boys until they were 21 . 125 Although it is not known precisely how many children
were effectively re-enslaved through apprenticeship,
scholars estimate that many thousands of children in the South were taken from their recently-freed parents . 126 Court cases throughout the second half of the 19th
century document occasionally-successful attempts of
parents to free their children from this form of enslave- ment, but also reveal the continued success of the system at ensuring that white former enslavers could profit
from their continued exploitation of Black children . 127 Southern white people defended the apprenticeship
system as benevolent in nature . One Maryland newspa-
per, for example, described the system in 1864 as being “prompted by feelings of humanity towards these un-
fortunate young ones .” 128 One Texas judge described the Texas apprenticeship system as granting “justice to these children” by placing them in “good comfortable homes”
where they would receive “some education .” 129
State and local courts were involved in empowering this injustice . So-called “orphan” courts across the southern states, typically run by pro-slavery judges, bound an es- timated 10,000 children of freed Black men and women
to these apprenticeships, which for all intents and pur- poses were an extension of their forced labor under
slavery, operating to the benefit of the children’s former enslavers . 130 Chief Justice of the United States Supreme Court Salmon Chase noted, in an 1867 case, that under
the Maryland apprenticeship system “younger persons
were bound as apprentices, usually, if not always, to
their late masters .” 131 This legal dispute arose because, under Maryland law, anyone seeking to apprentice a
white child was required to provide an education, and
could not involuntarily “transfer” the apprenticed child to another . 132
However, Black children subjected to apprenticeship
were not provided similar rights, and were described
as a “property and interest .” 133 In one well-known ex- ample, a young Black girl named Elizabeth Turner was
apprenticed as a “house servant” at the age of eight,
two days after her emancipation . 134 She challenged her apprenticeship because of the differences between
apprenticeship laws for Black and white children . 135
The Supreme Court held that no Black child could be
bound to an apprenticeship without the protections af-
forded to white children, concluding that “the alleged
apprenticeship in the present case is involuntary ser-
vitude, within the meaning of…the
[thirteenth] amendment .” 136
Although this decision meant free-
dom for Elizabeth Turner, many
southern trial courts ignored Justice
Chase’s observations, and the re-en-
slavement of Black youth continued
in the South . 137 Since apprenticeship
laws allowed local courts to judge whether Black parents were financially able to raise their children, white for- mer enslavers often easily convinced white judges that
the children would be better off placed with them . 138 Scholars have noted that these attitudes have continued through modern family court and child welfare systems,
which continue to apply three presumptions that are
In one well-known example, a young Black girl named Elizabeth Turner was apprenticed as a “house servant” at the age of eight, two days after her emancipation.

Photograph shows ten African American children of various ages in a field picking berries. (c.1920)

COURTESY OF THE LIBRARY OF CONGRESS

276
Chapter 8 Pathologizing Black Families
racist in practice: 1) that the state knows how to raise Black children better than their parents; 2) that pover- ty in and of itself prevents parents from raising their children well; and 3) that menial or vocational work,
instead of an academic education, is more appropriate
for Black youth . 139
During the New Deal, the federal government had
a chance to remedy these abuses but did not . The
Fair Labor Standards Act of 1938, a federal law that
generally outlawed child labor explicitly carved out ag- ricultural and domestic work, which was then largely
done by Black workers . 140 The United States Congress excluded these industries from labor protections,
thereby denying Black children the labor protections
given to white children . 141 See Chapter 10, Stolen Labor and Hindered Opportunity, for further discussion of
related issues .

Impacts of the Great Migration on the
Black Family
In the first half of the 20th century, millions of African Americans left the segregated South in search of greater opportunity in urban centers in the North and the West
in a phenomenon called the Great Migration, which is
discussed in detail in Chapter 1 . This was, in part, because these cities already had some existing Black social net- works and possibly relatives with whom southern African Americans could connect . 142 Older studies theorized that Black migrants during the Great Migration had disorga-
nized family structures in the South, which they brought with them when they migrated to
the North, contributing to high-
er rates of single parenthood and
childbirth outside of marriage . 143
Many Black families sent one par-
ent, northwards or westwards first,
with the rest of the family to follow
months or years later . 144
Modern scholarship disputed these
conclusions, noting that Black mi-
grants from the South were more
likely than African Americans already
living in the North to have children
living with two parents, married
women living with their spouses,
and fewer mothers that had never
married . 145 They were also less like-
ly than northern African Americans
to receive welfare payments, 146 con-
tradicting claims in the Moynihan
Report, which is discussed further
below, that the higher welfare payments in the North
drew migrants from the South .

California
California had an anti-miscegenation statute even as
other nearby states did not . 147 In fact, California enact- ed an anti-miscegenation law in its very first legislative session in 1850 . 148 It initially singled out “negroes and mulattos” as the sole group which was prohibited from
marrying “whites,” following the national trend of
disenfranchising Black people from entering into le-
gally-recognized marriages with white Americans . 149
Although the law was based in slavery-era motivations
for prohibiting such marriages, other racial groups fac- ing waves of societal discrimination in California were targeted by later amendments to the original law . 150
California legislators exported its ban on interracial
marriage to other states: In 1939, California legislators convinced the Utah legislature to add “Malay” to their
state’s anti-miscegenation law in order to avoid having to recognize marriages between Filipino Americans and
white people performed in Utah . 151
It was not until 1948 that the California anti-miscege- nation law was struck down by the California Supreme
Court . 152 At oral argument, in defense of the law, the attorney for Los Angeles County asserted that “it has
been shown that the white race is superior physically
and mentally to the black race, and the intermarriage
of these races results in a lessening of physical vitality and mentality in their offspring” and that “people who
COURTESY OF J.E. PURDY & CO. /LIBRARY OF CONGRESS
Photograph shows Lavinia Russell Baker (also spelled Levina and Levinah in historical records) and her five surviving children after the lynching of her husband, Lake City, South Carolina, Postmaster Frazer or Frazier Baker, and their daughter, Julia, on February 22, 1898. The Post Office and Baker family home was burned and family members were attacked by gunfire as they sought to escape.

277
Chapter 8 Pathologizing Black Families
enter into miscegenous marriages are usually from the
lower walks of both races . . . generally people who are lost to shame .” 153 Even after the law was struck down as unconstitutional, the California legislature repeatedly refused to repeal the law . 154 It was not until 11 years later that the California legislature finally repealed the stat- ute, following consistent pressure from the National
Association for the Advancement of Colored People . 155 IV . The Moynihan Report
Few developments in the past half-century have been as
impactful, or arguably as harmful, to America’s percep- tion of Black families as the “Moynihan Report” of 1965 .

Drafting and Content of the
Moynihan Report
In the midst of the civil rights movement, in 1965, Daniel Moynihan, an Assistant Secretary of Labor research-
ing policies as part of the Johnson Administration’s
“War on Poverty,” drafted what was originally an inter- nal Department of Labor Report entitled, “The Negro
Family: The Case For National Action .” 156 As described in the introduction of the report, one of its goals was to analyze the African American family structure, which
Moynihan saw as the fundamental problem underlying
the gap in income, standards of living, and education
between African Americans and other groups . 157
The report described numerous ways that the historical
legacy of slavery and institutional racism created last- ing, harmful effects on African Americans and the Black family . 158 However, while acknowledging the impacts of these historical realities, the report essentially claimed that the high rate of single motherhood in Black families in America was a major reason for the continued failure of African Americans to achieve full and equal access to success in America . 159 It further asserted that such equality could only be achieved by changing the culture of African Americans, and particularly of Black men, who Moynihan
claimed had been feminized and rendered inadequate
workers through being raised without male role models . 160 Even when advocating for governmental intervention
to assist African Americans, the Moynihan Report still
portrayed them as helpless but for the intervention of
white Americans, describing what Moynihan called the
“pathology” of Black America as “capable of perpetuat-
ing itself without assistance from the white world .” 161 Although the Moynihan Report relied heavily on schol-
arship previously published by Black scholars, and
linked the poverty experienced by African Americans
to the historical traumas of slavery, it also argued that the Civil Rights Act and equality of opportunity would
not resolve them . 162
Instead, the Moynihan Report asserted that “[t]he gap
between the Negro and other groups in American so-
ciety is widening . The fundamental problem, in which
this is most clearly the case, is that of family structure .” 163 Moynihan argued, for example, that the prevalence of
single motherhood in Black families created “a matriar- chal structure which . . . seriously retards the progress of the group as a whole .” 164
The overt sexism and gender-stereotyping of the report
also dovetailed with existing hostility towards Black
women serving as leaders in the Civil Rights move-
ment . 165 Contemporary Black women leaders were
outraged that Moynihan explicitly advocated for im-
proved governmental job opportunities for Black men
over Black women to ensure male “breadwinners .” 166
Trailblazing advocate Pauli Murray stated that Moynihan’s criticism of Black women in the workforce was “bitter-
ly ironic,” as criticism “for their efforts to overcome a handicap not of their own making .” 167 Murray and oth- ers sharply disputed that traditional gender roles could solve Black poverty and racism . 168 Social scientist Donna Franklin argued that the family instability Moynihan
focused on was mostly a result of the fact that Black
women were hired as maids and child caregivers, while
racial discrimination prevented Black men from finding
jobs . 169 W .E .B . Du Bois made a similar observation nearly a half a century before the Moynihan Report . 170
Franklin also noted that the many single mothers in
the Black community noted by Moynihan was at least
partially due to the fact that adoption services did not accept Black children . 171 As a result, single Black women were forced into motherhood when white women had
the option of giving their children up for adoption . 172 During the 1950s, 70 percent of white single mothers
gave up their children for adoption, but only five per- cent or fewer of Black single mothers did so . 173
As Ta-Nehisi Coates wrote, the report helped create “the myth…that fatherhood is the great antidote to all that
ails black people .” 174
Ultimately, no national effort resulted from the Moynihan Report . President Johnson called for a White House

278
Chapter 8 Pathologizing Black Families
conference in its wake, which occurred in November of
1965 . 175 At that point, the report had engendered so much controversy that Moynihan himself was largely sidelined at the conference, having recently left the administration . 176 The Contemporary Response of Black
Leaders to the Moynihan Report
Largely in response to the Moynihan Report, President
Johnson acknowledged the legacy of state-sanctioned slav- ery and discrimination when he publicly stated, “Negro
poverty is not white poverty .” 177 Nevertheless, his adminis- tration followed that announcement with few meaningful
efforts to address disparities of African Americans . 178 Johnson did, however, convene a group of well-respected civil rights leaders to address Black poverty, which pro- duced a report proposing that the federal government
spend billions of dollars to ensure
jobs, universal health insurance,
and a basic minimum income
paid to all Americans, regardless
of race . 179 Their approach did not
acknowledge that the American
government has harmed African
Americans in a unique way, since
they believed proposals aimed at
helping all poor Americans, Black
and white, were likely to succeed . 180
Nevertheless, very few of their
recommendations ultimately man-
ifested in any federal legislation
from the Johnson Administration,
or otherwise . 181
Impacts on Public
Discourse and Social Policy
Scholars have consistently crit-
icized the Moynihan Report for
blaming the victim . 182 For some pol-
iticians and government actors, the
Moynihan Report justified a stance
that African Americans were un-
worthy of public assistance because
Black culture was to blame for harms
resulting from the enslavement and
racial discrimination . 183
Moynihan also suggested that every
young Black man should join the
armed forces, which would provide
Black men with a much-needed
“world away from women, a world
run by strong men of unquestioned authority, where
discipline, if harsh, is nonetheless orderly and predict- able .” 184 This recommendation was made as American
involvement in the Vietnam War was beginning to
escalate, at a time in which Black men were underrep-
resented in the armed forces . 185 Moynihan’s analysis and recommendation lead to Secretary of Defense
Robert McNamara’s “Project 100,000,” a program os-
tensibly designed to allow greater access to the U .S .

Military for those who initially failed the qualifications test . 186 Project 100,000 ultimately served as a success- ful recruitment tool for Black soldiers in the Vietnam
War—40 percent of those recruited were Black, a pro-
portion nearly four times the percentage of African
Americans in the general population . 187 Regardless,
Black men were more likely to be drafted than white
men, further devastating Black families when thou-
sands of Black men died in the war . 188

COURTESY OF GOODMAN AND SPRINGER /LIBRARY OF CONGRESS
Unidentified African American Civil War veteran in Grand Army of the Republic uniform with two children. (c. 1900)

279
Chapter 8 Pathologizing Black Families
Although the Moynihan Report and its central conclu-
sions were immediately controversial and contested,
President Johnson adopted its language and central
focus in decrying the “breakdown of the Negro fami-
ly structure” as fundamental to the challenges faced
by African Americans . 189 Several high-profile scholars also used the conclusions of the Moynihan Report to ar- gue against the very social welfare programs for which
Moynihan had advocated to help African Americans out
of poverty . These included Arthur Jensen and Charles
Murray—best known for their deeply controversial book
“The Bell Curve”—who argued that the wealth gap be-
tween Black and white Americans existed because white
Americans were more intelligent, a position Moynihan
explicitly rejected . 190
Later scholars argued the Moynihan Report provided
grounds for politicians to blame Black single-parent
families for their poverty and to deny assistance to
African Americans in need . 191 Scholars have noted that Ronald Reagan, as California governor, “exploited” the
perception of the single Black mother popularized by
the Moynihan report when he coined the term “welfare
queen” as part of his larger campaign for limited gov-
ernment . 192 Historians have argued that the Moynihan Report, despite arguing for greater interventions to
combat Black poverty, nevertheless influenced the po-
litical movement within the federal government in the
1990s to cut welfare programs and impose punitive “wel- fare to work” training or employment requirements on
recipients of cash assistance . 193
V . The Welfare System: Assistance to Families
Despite the consistent arguments of politicians in the
1980s and 1990s stereotyping African Americans as un-
fairly taking advantage of government welfare policies, the American welfare system throughout history has ac-
tually discriminated against Black women and families,
both explicitly and implicitly .
1900 to 1935: State “Mothers’ Pensions”
States across America developed centralized welfare
systems in the early 1900s to provide economic aid to
low-income single mothers taking care of their chil-
dren . 194 States made support payments every month to ensure a basic standard of living to care for both mother and child . 195 By 1930, all but two of the 48 existing states had created these “mothers’ pensions .” 196
Throughout the era of mothers’ pensions, Southern
states consistently avoided giving aid to single Black
mothers . 197 These policies discriminated against Black mothers, despite their greater economic need on av-
erage . 198 This approach was in line with southern state officials’ administration of federal public works pro-
grams; such officials generally argued that African
Americans should not need or be given relief so long
as menial jobs were available to them . 199 Research has shown that between 1910 and 1920, the states in the
South that enacted no “mothers’ pensions” were those
with greatest percentage of Black single mothers . 200
Similarly, states that had higher Black single mother-
hood rates were slower to enact such pensions and/or
less generous with them when they were enacted . 201
Both northern and southern states also implement-
ed standards that disproportionally disqualified Black
women, such as barring unmarried mothers from re-
ceiving benefits . 202 Many states across the nation only gave mothers’ pensions to widows, thereby excluding
unmarried mothers who were more often Black wom-
en . 203 Even nominally race-neutral programs were often racist in their administration, since discretion in admin- istering these programs was often left to “line officials (judges as well as county agencies)” who made decisions “to separate the worthy mothers from the unworthy”
and about whether to provide benefits at all . 204
African-American family living in crowded quarters, Chicago, Illinois. (1941)

COURTESY OF RUSSELL LEE/LIBRARY OF CONGRESS

280
Chapter 8 Pathologizing Black Families
A welfare field supervisor in the 1930s explained that the withholding of welfare payments from Black mothers
was to prevent them from staying at home caring for
their children and to instead force them into the work
place . 205 This reflected the attitude of the white com- munity that Black women should be forced to continue
engaging in seasonal labor jobs or domestic service rath- er than receive any aid . 206
A survey of all mothers’ pensions across states in 1931 found that 96 percent of recipients were white; only
three percent went to Black mothers . 207 All the states of the Deep South—Arkansas, Florida, Louisiana,
Mississippi, North Carolina, Tennessee, and Texas—cre-
ated “mothers’ pension” programs, but provided almost
no assistance to Black single mothers . Across these seven states in 1931, only 39 Black families received mothers’ pensions, compared to 2,957 white families . 208
1935 to The Present: Federal Aid to
Dependent Children and Modern Welfare
In 1935, the federal government passed the Social
Security Act, which created a federal program sim-
ilar to the state mothers’ pensions known as “Aid to
Dependent Children,” later renamed “Aid to Families
with Dependent Children .” 209 In the 1950s, the feder- al government established payment programs to help
poor Americans, but these programs were administered
by state government agents who often denied welfare
benefits to Black families by claiming that their homes were immoral, typically because children were born
out of wedlock . 210 For example, in 1960 the Louisiana government removed 23,000 children from its state
welfare rolls solely because their parents were not
married, which was more likely to be the case among
Black families . 211
In response, the federal government prohibited states
from denying welfare benefits solely because a child
was born to unmarried parents, and required them
to decide on a case-by-case basis whether a family was
“unsuitable” for welfare and to provide service inter-
ventions to such families . 212 Although the intent of this rule, which became known as “Flemming Rule,” was
to prohibit states from excluding families from wel-
fare assistance by applying broad (and often arbitrary) rules to all recipients, the effect was to push more Black children into foster care . 213 State welfare officials investi- gated Black families to consider whether to remove their children, often simply because the family was poor . 214 Again, scholars have noted that these policies were in
many ways a modern day continuation of the appren-
ticeship process of removing Black children from their
low-income families . 215
For example, in 1960 in Florida, the largely white state welfare worker staff investigated and challenged the
“suitability” of approximately 13,000 families already re- ceiving welfare assistance . 216 Of these 13,000 families, only nine percent were white, even though welfare recipients as a whole were 39 percent white . 217 The State of Florida forced these 13,000 families to choose between their chil- dren or their welfare benefits . 218 Based on the racist beliefs that Black women had little maternal connection to their children, state workers expressed surprise that only 168 families agreed to place their children in state care . 219 In modern times, the welfare system of cash assistance
has remained biased against African Americans . In 1996, as part of a public movement against so-called “welfare moms,” Congress passed the Personal Responsibility
and Work Opportunity Reconciliation Act, which
created the Temporary Assistance to Needy Families
program, a system of federal funds sent to the states . 220 This system awards fixed dollar amounts to each state,
but allows them to spend that money how they see fit
to achieve federal goals . 221 Those goals include, but are not limited to, providing cash assistance to needy fam- ilies and ending the dependence of needy parents on
government benefits . 222
This system has allowed states to craft policies that de- termine who is eligible for assistance, and these state policies tend to disqualify Black families from receiv- ing cash assistance at a higher rate than other racial
and ethnic groups . 223 For example, seven states have policies that completely ban individuals with any
drug-related convictions from eligibility for cash as-
sistance . 224 As discussed in Chapter 11, An Unjust Legal System, Black individuals are much more likely than
white individuals to be convicted of drug offenses due
to discrimination in the criminal justice system . 225
Therefore, these restrictions are more likely to burden poor African Americans . 226 Similarly, 11 states still main- tain “family cap” policies that originated in “welfare
mom” stereotypes, which deny benefit increases when
welfare recipients have another child, and which have
disproportionate impacts on Black families that tend to be larger than white families . 227
MOTHERS’ PENSIONS RECIPIENTS 1931 BY RACE

A FORM OF GOVERNMENT AID TO NEEDY FAMILIES
Percent receiving funds
96%White
Black3%

281
Chapter 8 Pathologizing Black Families
One other notable change has emerged in very recent
times . Because the law gives states the power to spend federal money on programs other than direct cash assis- tance, states are motivated to minimize cash assistance so they can spend more on other programs that might
otherwise drain state coffers . 228 Over the past 20 years there has been a dramatic reduction in the percentage
of federal money spent on cash assistance . In 1997, 71 percent of federal money was spent on welfare benefits
nationwide, whereas in 2019 states spent only 21 percent of their federal money on such benefits . 229 Again, African Americans are more likely to suffer from this change, as states with larger percentages of Black residents have
tended to spend the least percentage of their federal
funds on welfare benefits . 230
California
Historically, California provided “mother’s pensions”
solely to widows, and was thus more likely to give these benefits to white single mothers be-
cause of the greater percentage of
unwed Black mothers . 231 Moreover,
the racist stereotype of “Welfare
Queen” was arguably popular-
ized by then-California Governor
Ronald Reagan in 1976, who ran for
President in part on a promise to cut
welfare benefits, as he had done as
Governor of California . 232
Currently, California spends a
greater percentage of its feder-
al Temporary Assistance to Needy
Families funds on basic assistance
than most other states in the nation . 233 However, that per- centage has reduced from 51 percent in 2009 to 39 percent in 2020 . 234 Advocates and academics note that these re- ductions disproportionately harm Black families . 235
VI . Foster Care Systems and Other Forms of Child Welfare Historically and through today, Black families have faced racism in the child welfare system . After the Civil War, government agencies excluded Black orphans from gov-
ernment care and have consistently been more likely to
investigate Black families . As of 2019, Black children “ac- counted for roughly 14 percent of the child population
[but] 23 percent of the foster care population .” 236
The fact that child welfare agencies are more likely to investigate Black families is not because Black parents are more likely to mistreat their children, but rather
due to many other factors . 237 An official study of the U .S . Department of Health and Human Services found
in 1996 that the disproportionality
of Black children being taken from
their parents and placed in foster
care “does not derive from inherent
differences in the rates at which they
are abused or neglected,” but rather
reflects the “differential attention”
received by Black children “along
the child welfare service pathway .” 238
Since then, some studies have found
slightly higher rates of mistreatment within Black fami- lies, but scholars have observed that these higher rates are due to the fact that Black families are more likely to be poor, and the stresses of poverty correlate with
child mistreatment . 239
Foster Care and Adoption Throughout
American History
Both during and for many decades after the slavery
era, Black children were systematically excluded from
orphanages and other resources designed to care for
poor children . 240 Instead, some free Black children
Both during and for many decades after the slavery era, Black children were systematically excluded from orphanages and other resources designed to care for poor children. Instead, some free Black children were placed in charitable housing for homeless or very low-income adults, where they faced abuse and were sometimes “indentured” into forced labor, effectively re-enslaving them.
14%23%

AFRICAN AMERICANS

IN THE UNITED STATES

BLACK CHILDREN IN

FOSTER CARE
2019

282
Chapter 8 Pathologizing Black Families
were placed in charitable housing for unhoused or very
low-income adults, where they faced abuse and were
sometimes “indentured” into forced labor, effectively
re-enslaving them . 241 Non-governmental Black child
welfare organizations were sometimes established to
help some Black children rejected from private and
public entities that only assisted white children . 242 For example, Pittsburgh’s Home for Colored Children was
founded after a young Black girl, Nellie Grant, wandered the streets after being rejected from the city’s childcare institutions because she was Black . 243
Scholars have argued that more Black children end up in foster care because adoption services believed that Black children were “unadoptable” due to the preferences
of the white families which they served to adopt white
children . 244 After governmental child adoption services were officially open to Black children, most were not still given the same opportunities as white families because
adoption agencies catered to the preferences of white
families . 245 Non-governmental agencies similarly ex- cluded Black children by catering to the private adoption market, which was largely affluent and white . 246 When these adoption institutions failed to place Black children with families, they blamed the children and stigmatized them as “unadoptable .” 247
State government systems that take children from
caregivers believed to be unfit and place them in other environments designed to ensure their safety developed
after World War II . 248 From the start, state agencies re- moved Black children from their families and placed
them into foster care far more often than white chil-
dren . Between the years of 1945 and 1961, the number
of nonwhite children in child welfare caseloads almost
doubled, increasing from 14 percent to 27 percent . 249 As the modern foster care system developed, various
governmental policies have placed Black youth at great- er risk of being taken from their families . As discussed above, until the 1950s, poor Black families continued to be denied benefits available to other poor Americans
based on federal policies, and then were faced with po- tential removal of their children into foster care because of “unsuitable” home conditions . 250
The criminalization of African Americans through the
“War on Drugs” also contributed to increasing num-
bers of Black children being removed from families
and placed into the foster care system, as Black men in particular were disproportionately arrested for minor
crimes, breaking apart families and often leaving chil- dren in the care of extended relatives or strangers . 251 Child welfare agencies tasked with ensuring child safety also often pay particular attention to families experienc- ing homelessness and housing instability, which African Americans are more likely to experience . 252 Housing in- stability can also delay the return of a child who has been removed to their family . 253 From 1945 to 1982, the per- centage of nonwhite children in foster care rose from
17 percent to 47 percent, with 80 percent of nonwhite
children being Black . 254
Scholars have found that racial discrimination exists at every stage of the child welfare process . State agencies are more likely to be involved with Black families than with white families . 255 Black parents are more likely to be investigated than other families, because neighbors, teachers, and bystanders are more
likely to report Black families than
white families, likely due to their
own racial biases . 256
When equally poor Black and white
families are compared, even where
the families are considered to be at
equal risk for future abuse, state
agencies are more likely to remove
Black than white children from their families . 257 A
2008 study found that Black children were 77 percent
more likely than similarly-situated white children to be removed from their homes as opposed to receiving in-
home services . 258 Black children placed in foster care spend more time there, and are less likely to reunify
with their families . 259 All other factors being equal, Black parents are more likely than white parents to
have their parental rights terminated . 260
In 2017, the New York Times published evidence of rac-
ist foster care interventions in New York City in which Black mothers not only had their children taken away,
but also faced unfair criminal consequences . 261 One
In 2008, compared to white children,
similarly-situated Black children were
to be removed
from their homes 77% MORE LIKELY
From 1945 to 1982, the percentage of nonwhite children in foster care rose from 17 percent to 47 percent, with 80 percent of nonwhite children being Black. Scholars have found that racial discrimination exists at every stage of the child welfare process.

283
Chapter 8 Pathologizing Black Families
Black woman, who remained anonymous in the article,
called emergency services when she went into prema-
ture labor, but then realized her boyfriend could not
be reached unless she walked to his location . 262 She left her six-year-old-daughter alone at her apartment and
walked to get her boyfriend, returning 40 minutes later to find emergency services and police . 263 Immediately after giving birth, she was handcuffed and placed un-
der arrest for child endangerment, and both of her
children—including her newborn baby—were placed in
foster care . 264 Scholars argue that the refusal of some academics to consider the narrative experiences of Black parents facing foster care interventions such as these
echo the arguments of the Moynihan Report . 265
Consequences of Foster Care Disparities
As a group, children in the foster care system are often subjected to harms as a result of the experience . These children are more likely to be Black . 266 For example, Brittany Clark spent 12 years in state care . 267 At age sev- en, she was placed as the only girl in a long-term home, during which she experienced physical and sexual
abuse . 268 After five years, Clark was relocated and spent the remainder of her time in foster care moving from
home to home, encountering individuals who cared
more about receiving foster care payments than caring
for her . 269 This instability, lack of control over circum- stances, and repeated loss of connection harms foster
children in compounding and lasting ways . 270
Foster children as a group—in which Black children are
greatly overrepresented—demonstrate various long
term negative outcomes when compared to children not
involved in the foster care system . Compared to youth
nationally, children who age out of foster care are less likely to be employed or employed regularly, and earn
far less, than young adults who were not in the foster
care system . 271 By age 26, only three to four percent of young adults who aged out of foster care earn a college degree . 272 One in five of these youth will experience homelessness after turning 18 . 273 Only half will obtain any employment by 24 . 274 Over 70 percent of female fos- ter youth will become pregnant by 21, and one in four
former foster youth will experience Post-Traumatic
Stress Disorder . 275
Children in foster care are also far more likely to be in- volved with the criminal justice system . Some children taken from their families are placed in correctional
facilities, and within this group, Black children were
placed in various penal facilities at rates much high-
er than white children . 276 Approximately 25 percent
of children in foster care will become involved with
the criminal justice system within two years of leav-
ing foster care, and over half of youth currently in
foster care experience an arrest, conviction, or stay at a correctional facility by the age of 17 . 277 For children who have been moved through multiple foster care
placements, the risk is even higher, with one study in- dicating that over 90 percent of foster youth who move
five or more times will end up in the juvenile justice
system . 278 Foster youth, particularly girls, are targeted by sex traffickers, and the criminalization of sex work can funnel these victims of modern-day slavery into
the criminal justice system . 279
As a result of these severe disadvantages faced by fos- ter youth, some modern scholars have advocated for
the abolition of the modern “Child Protective Services” agency, arguing that it is inherently racist and should be replaced with a child protection model that implements
policies and procedures designed from the ground-up
to exclude racist presumptions . 280
California
California’s Child Welfare system historically exhibited, and continues to exhibit, the same disparities between
Black and white families that are discussed above at
the national level, generally in even more extreme
forms . For example, Black children in California make
up approximately 22 percent of the foster population,
while only six percent of the general child population . 281 Nationally, these percentages are 24 percent and 15 per- cent, meaning that, in California, Black children are
more than twice as overrepresented in foster care when
compared to the national average . 282
A 2015 study ranked California among the five worst
states in foster care racial disparities . 283 Some counties in California—both urban and rural—have much higher
disparities compared to the statewide average . In San
Francisco County, which is largely urban and has nearly 900,000 residents, the percentage of Black children in
foster care in 2018 was over 25 times the rate of white children . 284 In Yolo County, which is largely rural and has approximately 200,000 residents, the percentage of
Compared to white children in
California, Black children are
to experience a Child
Protective Services Event2x MORE LIKELY

284
Chapter 8 Pathologizing Black Families
Black children in foster care in 2018 was over 8 times the rate of white children . 285 In 2014, Los Angeles County’s Commission on Child Protection issued a detailed report noting widespread failures and shortcomings across the
county’s child welfare system—failures that fall dispro- portionately on the overrepresented Black population
within that system . 286
Similar to national statistics, a 2003 study showed that, even when normalizing for other relevant factors like
poverty, Black children in California are more likely to be removed from their caretakers and placed in foster care than white children . 287 Black children in California are ap- proximately twice as likely as white children to experience a Child Protective Services investigation, and approxi- mately three times as likely to spend some time in foster care or experience a termination in parental rights . 288 California youth who enter foster care also consistently exhibit various achievement gaps compared to children
not involved with foster care, further worsening dispar- ities for African Americans . By age 24, California foster youth who age out of foster care earn less than half
what an average 24-year-old earns nationally . 289 Only 53 percent of foster youth in California graduate high
school on time, compared with 83 percent of all youth
in California . 290
California has made some recent attempts to address
these dramatic disparities between foster youth and
those not in the foster system, though little has been
done to specifically target the racial disparities dis- cussed above . In September 2021, California Assembly
Bill 12 was passed into law, enabling foster youth to re- main in care through age 21 as a tool to help increase
foster youth college attendance rates and address
some of the negative consequences of youth aging
out of care at 18 with no sources of support . 291 In July 2021, California lawmakers approved the first ever
state-funded plan to guarantee monthly cash payments
to youth leaving the foster system . 292 All University of California, California State University, and California Community College campuses now have foster youth
programs designed to provide help and support to
former foster youth on their campuses . 293 Explicitly addressing the racial disparity in Los Angeles County’s foster care system, the Los Angeles County Board of
Supervisors created an “office of equity” within the
agency administering the foster care system . 294 It was created, however, with “no proposed budget or more
specific mandates on the office in terms of actual
services it will provide .” 295
VII . Criminalization of Black Youth
Black youth are more likely to be exposed to the criminal legal system as a result of racism and over-policing . 296 In recent years, these disparities have often gotten worse . 297 In 2018, while Black youth made up 16 percent of the
youth population, the rate of arrest of Black youth was 2 .6 times that of white youth, and Black youth accounted for 50 percent of all youth arrests for violent crimes . 298 Once charged with a crime, Black youth are at risk of
harsher prosecution, detention, and punishment . 299
Black youth are transferred to adult court at a much
higher rate than white youth . In 2018, while Black youth only accounted for 35 percent of all cases, they made
up more than 51 percent of transfers from the juvenile
court system to adult court . 300 Black girls are 3 .5 times more likely to be incarcerated than their white peers . 301 Black girls also comprise 34 percent of girls in residen- tial placements, but accounted for 15 percent of the
Compared to white children in
California, Black children are
to spend time in foster care or experience
a termination in parental rights
3x MORE LIKELY
Photograph shows children of William and Daisy Myers, the first black residents of Levittown, Pennsylvania riding bicycles on the sidewalk. (1957)

COURTESY OF CHARLOTTE BROOKS/LIBRARY OF CONGRESS

285
Chapter 8 Pathologizing Black Families
female youth population . 302 A 2016 study found that for youth serving life without parole sentences in the United States, twice as many individuals were Black as white . 303 Law enforcement and other government agencies across
America often treat Black youth as adults, or as less than human, in myriad ways . Research confirms that law en-
forcement often overestimates the age of Black youth
when they are suspected of a felony based on contact
with police . 304 One study found that Black boys are per- ceived as older than they are and less innocent than their white peers . 305
School Policing
In all 50 states, public schools, including elementary
schools, employ student resource officers, which often
do not go by the title of police . 306 Proponents of school policing have long tied this practice to fears after deadly mass shootings in places like Columbine High School,
while some scholars have argued its prevalence is linked to white fear of Black youth under the guise of pro-
tecting school children . 307 In either case, over the past several decades the number of law enforcement offi-
cers on school campuses throughout the United States
has skyrocketed .

In 1975, the number of U .S . schools with police pres- ence on campus was only one percent . 308 By 2016, there were 27,000 school resource officers patrolling U .S .
schools, up from about 9,400 in 1997 . 309 This equated to sworn officers in approximately 36 percent of ele-
mentary schools, 67 .6 percent of middle schools, and
72 percent of high schools in the 2017-18 school year . 310 This is at least partially due to a dramatic increase in federal funding for school police . 311 Congress passed the Violent Crime Control and Law Enforcement Act in
1994 to increase federal involvement in school policing and safety . 312 The law provided massive federal aid for policing at the state and local level and in schools . 313 In the 2015-16 school year, Black students were arrest- ed at three times the rate of white students, while only comprising 15 percent of the population in schools . 314 This disparity widens for Black girls, who make up 17
percent of the school population, but are arrested at 3 .3 times the rate of white girls . 315 This is at least partially explained by findings that Black girls are seen by author- ities and teachers as “disobedient” or “disruptive” for similar but accepted behaviors from white children . 316 Moreover, schools have historically disciplined clothing trends popular among Black youth, including “sagging,”
oversized, and baggy clothes . 317 Police played a role in cre- ating a narrative in schools that sagging was a symbol of gang activity, and school officials proceeded to ban sagging as a way to prevent gang violence,
graffiti, and create “safe” environ-
ments for kids, thereby further
targeting Black youth . 318 See Chapter
6, Separate and Unequal Education,
for more information on the so-
called “school to prison pipeline .”
One in five students in the U .S . will
develop mental health challenges
that rise to the level of a diagnosis . 319
Yet, around the country, schools
are more likely to employ law en-
forcement than mental health counselors, and Black
students are three times more likely than their white
peers to have police in their school but no psycholo-
gist . 320 Black male youth with disabilities in the 2015-16 school year had an arrest rate of five times the rate of the whole population . 321
A photograph taken by the Federal Security Agency. National Youth Administration. The original caption stated: “Oakland, California. High School Youth. Two Negro youngsters look over the shoulders of a couple of fortunate enough to own a model plane. The white boys can hope to become aviators” (1940)

COURTESY OF NATIONAL YOUTH ADMINISTRATION/NATIONAL ARCHIVES In the 2015-16 school year, Black students were arrested at three times the rate of white students, while only comprising 15 percent of the population in schools. This is at least partially explained by findings that Black girls are seen by authorities and teachers as “disobedient” or “disruptive” for similar but accepted behaviors from white children.

286
Chapter 8 Pathologizing Black Families
The Juvenile Justice System
Outside of schools, Black youth face disproportionate
harms through various aspects of the juvenile justice
system . A 2021 study by researchers from the University of California, Berkeley, found that Black youth in the 10 to 14 age group are injured in police-related incidents at 5 .3 times the rate for boys, and 6 .7 times the rate for girls, compared to their white peers . 322 The study sug- gested that especially among Black girls, this disparity could be due to how Black girls are “adultified” com-
pared to white girls and perceived of as older . 323 Scholars have noted similar “adultification” of Black Boys, who at 10 years old are perceived as less childlike, less innocent, and four and a half years older than their white counter- parts . 324 Because of this perception of Black children as older and less innocent, they are seen as more responsi- ble for their actions than white children who engage in the same behaviors . 325 Both black boys and girls are also perceived as more dangerous than their white peers,
though the magnitude of the bias has been shown to be
stronger for boys than girls . 326
More broadly, as discussed in Chapter 11, An Unjust
Legal System of this report, African American youth are more than four times as likely to be
detained or committed in juvenile
facilities as their white peers . 327
Youth who are stopped more fre-
quently by police are more likely to
report feelings such as anger, fear,
and stigma, and shame . 328 More in-
vasive stops led to increased feelings
of emotional distress and trauma, including post-
traumatic stress after the stop . 329 Stress among youth involved in police stops is not contingent on whether
they were engaging in any misconduct . 330
The “War on Drugs” in the 1980s and 90s had an out-
sized impact on Black youth . White youth use drugs at
the same or higher rate as Black youth, but Black youth are disproportionately prosecuted though drug cases
in juvenile courts . 331 Again, this was largely enabled by the federal government . In 1990, Congress passed leg-
islation authorizing Department of Defense resources
to be used to combat drug activity by state and local
agencies, including public schools . 332 In 2014, schools in states such as California, Florida, and Texas report- ed receiving military-grade equipment through the
department’s program . 333
Black youth facing mental health problems or crises are also funneled into the juvenile justice system in ways
white children facing similar issues are not . 334 Even when Black youth receive mental health treatment
instead of or in addition to incarceration, they are more likely to be inappropriately diagnosed and medicated
than their white peers . 335
Once in the juvenile justice system, outreach to families is inadequate . 336 Police and facility outreach to parents is usually limited to notice that their child has an up- coming court appearance, without more information
such as why an arrest was made or the circumstances of
their child’s confinement . 337 The bail system for youth in the criminal legal system is also deeply flawed . Courts rarely consider what a family can actually afford when
setting bail, and bail is regularly set between $100 to $500 for children . 338
California
The issues discussed above apply to California’s history and present treatment of Black youth, although there
has been some modern pushback to these approaches .

Recent California Attorney General investigations
and settlements with California school districts, e .g ., the Barstow Unified School District, the Oroville City
Elementary School District, and the Oroville Union
High School District are all representative of continued targeting of Black youth . 339 Investigations at these dis- tricts showed that Black students were more likely to
be punished and/or suspended, and were subjected to
greater punishments, than similarly-situated peers of
other races . 340
Other districts have taken proactive steps to change
outdated approaches . For example, the Oakland school
board voted to remove security officers from schools in June 2020 . 341 Before this vote, school officer practices were governed by a policy and procedure manual that
described them as having a “calming presence” in the
school . 342 The manual also included authorization for officers to restrain students, search students and their property, and even detain individuals if they had rea-
son to believe a crime had been committed . 343 All of these powers, and the school police enforcing them,
have disproportionate harmful impacts on Black stu-
dents . California-specific research has determined that schools with larger police presences lead to decreased
White youth use drugs at the same or higher rate as Black youth, but Black youth are more likely to be prosecuted.

287
Chapter 8 Pathologizing Black Families
instruction for Black students, likely because police dis- cipline and monitoring contributes to a climate that is incompatible with learning . 344
Nevertheless, California still allows law enforcement dis- cretion to add youth over the age of 12 to a gang database as long as two of the following factors—under certain lim- itations and requirements—are found: admission of gang
activity, identification of a gang tat-
too, frequent identification in a “gang
area,” any known association with
gang members, clothing associated
with a gang, arrest for typical gang
activity, or display of gang signals . 345
In California, public defenders and
youth advocates estimate that police
have tracked children as young as 10
for suspected gang activity . 346
In one high-profile incident related to the policing of Black children, in May 2019, police in Sacramento chased down a Black 12-year-old child who they claimed was
asking people to buy goods he was selling, and force-
fully detained him while he was calling for his mom . 347 One police officer covered his face with a mesh sack and forced him on the ground with a knee on his back while
an officer put a knee on his thigh . 348
VIII . Domestic Violence in Black Families
Domestic violence, also termed intimate partner vi-
olence, is a significant problem within Black families
and communities across the country, and that prob-
lem is linked to many of the issues already discussed in this chapter .

Elevated Rates of Domestic Violence
Black women experience intimate partner violence at
greater rates, and in more traumatic ways, than other
women on average . 349 The U .S . Department of Justice estimated that, in 2000, Black females experienced
intimate partner violence at a rate 35 percent higher
than that of white women . 350 In 2007, data indicated that Black women victims of intimate partner violence
were twice as likely to be murdered by a spouse and
four times as likely to be murdered by an unmarried
partner when compared to white women . 351 Even
among victims of intimate partner violence, Black
women experience more traumatic forms of violence
on average as compared to white women . 352 Moreover,
Black men also experience elevated rates of intimate
partner violence when compared to white men . 353
Similar patterns exist for Black LGBTQ+ victims of
both genders, who experience intimate partner vio-
lence at greater rates than white LGBTQ+ victims . 354
Despite these disparities, very little academic or
practical attention has been paid towards specific
interventions or assistance models that are explicitly
catered to Black victims . 355
Causal Factors
The higher rates of domestic violence in Black families cannot be explained by a single cause . Some scholars
have noted that, aside from greater rates of poverty,
overcrowding, and other domestic violence risk factors
experienced by Black families, Black men have expe-
rienced systemic racism throughout American history
that, when compounded with traditional gender roles,
may contribute to displaced anger, hatred, and frustra- tion toward family members . 356 Throughout American
history, Black men have been subjected to racial discrim- ination in employment (as further detailed in Chapter
10, Stolen Labor and Hindered Opportunity) while soci-
ety simultaneously tells them that their role is to provide for their families . 357 Scholars have argued that these pressures, which are impossible to reconcile, may lead
to expressions of physical violence . 358
Regardless of the causes of domestic violence, Black
women are less likely to seek assistance from social
services agencies because of distrust based on the
racially discriminatory history described earlier in
this chapter . 359
Evidence shows that this distrust is not misplaced .

Government actors in social services agencies and the
judicial system have unfairly disregarded Black victims as angry “welfare queens” who are immune to violence,
or violent themselves . 360 These perceptions are fur- ther cemented by media portrayals of Black women as
aggressive or emasculating . 361 Similarly, Black women Although African Americans experience intimate partner violence at greater rates, very little academic or practical attention has been paid towards specific interventions or assistance models that are explicitly catered to Black victims.

288
Chapter 8 Pathologizing Black Families
already involved with the justice system are less like- ly to seek help from police because they expect to be
disbelieved, based on the extensive histories of racist government actions in supporting violence against Black women as detailed in Chapters 3, Racial Terror, 11, An
Unjust Legal System and 12, Harm and Neglect: Mental,
Physical and Public Health . 362 Black female victims of abuse are sometimes reluctant to report abuse by Black
men to the “white legal system” even when police in-
tervention is appropriate, given their long exposure to inequities within that system for African Americans . 363 As explained by Cecily Johnson, director of strategic ini- tiatives at the Domestic Violence Network, I have been
told personally [by a survivor] they can’t get help because they don’t want their partner to become a statistic . . . . There’s a genuine and legitimate fear that if they call the police, their partner could be killed or they, as the survivor, could be killed . 364
Black transgender women are similarly hesitant to re-
port abuse to the police because they fear being falsely or illegitimately arrested, are particularly likely to be physically or sexually assaulted in prison, 365 and because they are more than three times as likely to experience
police violence compared to non-transgender people . 366 High-profile instances of violence against transgender
women, especially when transgender women defend
themselves, legitimize these fears, . 367
A lack of understanding of the real and well-founded
concerns of Black victims of domestic violence, and the distrust of Black victims of police and social services, has consistently been a major challenge among those tasked
with helping victims of intimate partner violence, both within California and nationally . 368
California
The patterns discussed above exist in California as
well as nationally . California has the largest number
of domestic violence survivors in the country, and
Black women in California are approximately 25 per-
cent more likely than women generally to experience
such violence during their lifetimes . 369 Moreover, a report from Blue Shield of California concluded that
“Black women in particular . . . experience a significant resource gap after instances of intimate partner vio-
lence .” 370 These disparities have likely been exacerbated by the COVID-19 epidemic, with significant majorities
of Black Californians surveyed say-
ing that they believe the epidemic
and its stay-at-home orders both
made domestic violence more like-
ly to occur and made it harder for
victims of such violence to reach
out for help . 371
Qualitative studies within
California have also confirmed that
Black Californians perceive poverty,
prior trauma, and systemic racism
as root causes of domestic violence in Black families . 372 Black female victims in California are also less likely to seek police assistance because they fear police will falsely believe them to be aggressors and arrest them as well . 373 IX . Conclusion
The destruction, commodification, and exploitation of
the Black family has occurred throughout American his-
tory, and enriched both private and government actors
for generations of white Americans .

The racist and sexist stereotypes created during en-
slavement to sustain the cotton economy and enrich
the entire nation are woven throughout American laws,
policies, and government agencies . These racist beliefs tore apart Black families on the auction block during
enslavement, justified re-enslaving children through
the apprenticeship system, and underlie the contin-
ued removal of Black children from their parents in the foster care system . This reality has rarely been recog- nized, let alone remedied . To the contrary, in the past half-century government actors have blamed African
Americans for the harms that have resulted from racist
government actions .

A lack of understanding of the real and well-founded concerns of Black victims of domestic violence, and the distrust of Black victims of police and social services, has consistently been a major challenge among those tasked with helping victims of intimate partner violence, both within California and nationally.

THIS PAGE INTENTIONALLY LEFT BLANK

290
Chapter 8 Pathologizing Black Families
Endnotes
1 Fuke, Planters, Apprenticeship, and Forced
Labor: The Black Family under Pressure in
Post-Emancipation Maryland (1988) 62
Ag . Hist . 57, 62-65; section IV, infra .
2 Robinson, “The Black Family” and US
Social Policy: Moynihan's Unintended
Legacy?, 97 Revue Française d'études
Américaines (2003) 118, 118-128;
Baldwin, Stratification of the Welfare
Poor: Intersections of Gender, Race, and
“Worthiness” in Poverty Discourse and
Policy (2010) 6 The Modern American
4; Cooper, Racial Bias in American Foster
Care: The National Debate (2013) 97
Marq . L .Rev . 215, 230-233; sections
VI & VII, infra; see generally Minoff,
Center for the Study of Social Policy,
The Racist Roots of Work Requirements
(Feb . 2020) (as of Mar . 6, 2022) .
3 Ibid .
4 Lawrence-Webb, African American
Children in the Modern Child Welfare
System: A Legacy of the Flemming Rule
(1997) 76 Child Welfare 9, 9-21; White,
Federally Mandated Destruction of the Black
Family: The Adoption and Safe Families
Act (2006) 1 Nw . J . L . & Soc . Pol’y 303,
313; Ladner, Mixed Families Adopting
Across Racial Boundaries (1978), p .
67; Roberts, Prison, Foster Care, and the
Systemic Punishment of Black Mothers
(2012) 59 UCLA L . Rev . 1474, 1480–81 .
5 See, e .g ., Hockenberry & Puzzanchera,
Juvenile Court Statistics 2018,
Nat . Center for Juvenile Justice
(2020) (as of Jan . 28, 2021) .
6 Douglass, My Bondage and My
Freedom (1855), p . 34 .
7 Gates, Jr ., How Many Slaves Landed in the
U.S., PBS .org (citing Eltis & Richardson,
Trans-Atlantic Slave Trade Database)
(as of Mar . 6, 2022); Patton, Corporal
Punishment in Black Communities: Not
an Intrinsic Cultural Tradition but Racial
Trauma (Apr . 2017) Am . Psychological
Assn . (as of Apr . 11, 2022) .
8 See generally Ellis, Lost Lineage: The
Quest to Identify African Americans'
Roots (Oct . 19, 2021) Wash .

Post (as of Apr . 11, 2022) .
9 See generally Williams, Help Me to Find
My People (2012) .
10 Briggs, Taking Children: A History of
American Terror (2020) p . 20 .
11 Id. at p . 19 .
12 Id. at pp . 20, 43 .
13 Lamb, The Peculiar Color of Racial Justice
(Jan . 25, 2005) Christian Science
Monitor (as of Apr . 11, 2022); see also
White, Ar’n’t I a Woman? Female
Slaves in the Plantation South (New
York: W . W . Norton, 1985) pp . 67-68 .
14 See Wiecek, The Statutory Law of
Slavery and Race in the Thirteen
Mainland, Colonies of British America
(1977) 34 Wm . & Mary Q . 258, 262;
Morris, Southern Slavery and the
Law, 1619-1860 (1996) pp . 43-48 .
15 Act Prohibiting Importation of Slaves
of 1807, 2 Stat . 426, ch . 22 .
16 California Task Force to Study and
Develop Reparation Proposals for
African Americans (Oct . 13, 2021),
Testimony of Dr. Jacqueline Jones (as
of Apr . 11, 2022) (Testimony of Dr .

Jacqueline Jones); Briggs, supra, at p .
19; see generally Morgan, Laboring
Women: Reproduction and Gender
in New World Slavery (Philadelphia:

University of Pennsylvania Press, 2014) .
17 Testimony of Dr . Jacqueline Jones,
supra; White, Ar’n’t I a Woman? Female
Slaves in the Plantation South (New
York: W . W . Norton, 1985) pp . 67-68;
see generally Rachel A . Feinstein,
When Rape was Legal: The Untold
History of Sexual Violence During
Slavery (New York: Routledge, 2019) .
18 See generally Berry, The Price for their
Pound of Flesh: The Value of
the Enslaved, from Womb to
Grave, in the Building of a Nation
(Boston: Beacon Press, 2017) .
19 Ibid .
20 Foster, “The Sexual Abuse of Black Men
under American Slavery .” Journal of the
History of Sexuality, vol . 20, no . 3, 2011,
pp . 445–64, http://www .jstor .org/sta-
ble/41305880 . Accessed 11 Apr . 2022 .
21 Ibid .; Testimony of Dr . Jacqueline
Jones, supra .
22 Berry, supra, at pp . 10-11 .
23 Id. at pp . 5-6 .
24 Goring, The History of Slave Marriage in
the United States (2006) 39 J . Marshall
L . Rev . 299, 299, 302-304 .
25 Goodell, The American Slave Code in
Theory and Practice: Its Distinctive
Features Shown by its Statutes, Judicial
Decisions, & Illustrative Facts (1853) p .
26 Goring, supra, at pp . 314-315 .
27 Id. at pp . 303-304 .
28 Ibid .
29 Howard v. Howard (N .C . 1858) 51 N .C .
235, 240 .
30 State v. Samuel (1836) 19 N .C . 177, 183 .
31 Smith, Freedom’s Frontier: California
and the Struggle over Unfree
Labor, Emancipation, and
Reconstruction (University of North
Carolina Press, 2013) p . 231 .
32 Id. at pp . 231-32 .
33 Id. at pp . 232-33 .
34 In re Campbell’s Estate
(1910) 12 Cal .App . 707 .
35 Volpp, American Mestizo: Filipinos and
Antimiscegenation Laws in California
(2000) 33 U .C . Davis L . Rev . 795, 798 .
36 Viñas-Nelson, Interracial Marriage in
“Post-Racial” America (July 2017)
Origins (as of Aug . 13, 2021) .
37 Kwon, Interracial Marriages Among
Asian Americans in the U .S .

West, 1880–1954 (2011) p . 13 .
38 See Wiecek, supra, at p . 262; Morris,
supra, at pp . 43-48; Goring, su-
pra, at pp . 303-304 .
39 Viñas-Nelson, supra .

291
Chapter 8 Pathologizing Black Families
40 Ibid .
41 Ibid .
42 Kennedy, Interracial Intimacies (2003)
p . 220 .
43 Ibid .
44 Id. at 221-22 .
45 Pascoe, What Comes Naturally:

Miscegenation Law and the Making of
Race in America (2009) pp . 135–136 .
46 McCash, Thomas Cobb and the
Codification of Georgia Law (1978) 62
The Georgia Historical Quarterly 9,
47 Briggs, supra, at pp . 25-26 .
48 Morriss, Georgia Code (1861), in Slavery
in the United States: A Social,
Political, And Historical Encyclopedia
(Santa Barbara: ABC-CLIO,
2007) vol . 2, pp . 314-315 .
49 Crew et al ., Slave Culture: A Documentary
Collection of the Slave Narratives from
the Federal Writers’ Project (2014) pp .
191 . Please see Chapter 12 on Mental
and Physical Harm and Neglect
for further discussion of the pro-
cess of birthing and the work
demands placed on new mothers .
50 Id. at p . 193 .
51 Id. at p . 194 .
52 Id. at p . 193
53 Id. at p . 194 .
54Steven Mintz, Childhood and
Transatlantic Slavery, Children and
Youth in History (as of Dec . 8, 2021) .
55 Nat . Park Service, African American
Children (as of Aug . 23, 2021) .
56See generally Gutman, The Black
Family in Slavery and Freedom:
1750-1925 (1977) .
57 Tadman, The Hidden History of Slave
Trading in Antebellum South Carolina: John
Springs III and Other “Gentlemen Dealing
in Slaves” (1996) 97 S .C . Hist . Mag . 6, 15 .
58 Holden, Slavery and America’s Legacy of
Family Separation (July 25, 2018) Black
Perspectives (as of Aug . 24, 2021) .
59 Id
60 Coates, The Case for Reparations (June
2014) The Atlantic (as of Apr . 12, 2022) .
61 Ibid .
62 Briggs, supra, at p . 18 (quoting
Congressional Globe (1864) 28th
Congress, 1st Session 1439) .
63 Id. at p . 19 .
64 Id. at pp . 17–28 (noting that slave narra-
tives “dwelt often on the
question of child taking”) .
65 Briggs, supra, at p .27 .
66 Ibid .
67 See, e .g ., Gutman, supra, at pp . 212-216;
Hunter, Bound in Wedlock: Slave
and Free Black Marriage in the
Nineteenth Century (2017) .
68 Herskovits, The Myth of the Negro Past
(1941) pp . 167-186 .
69 Fenton, In A World Not Their Own: The
Adoption of Black Children (1993)
10 Harv . Blackletter J . 39, 42 .
70 Rankin, Why They Won't Take the Money:

Black Grandparents and the
Success of Informal Kinship Care
(2002) 10 Elder L . J . 153, 157 .
71 See Holmes, The Extended Family System
in the Black Community: A Child-
Centered Model for Adoption Policy
(1995) 68 Temp . L . Rev . 1649, 1660
(citing, inter alia, Gutman, supra) .
72 Ruggles, The Origins of African-American
Family Structure (1994) 59 Am .

Sociological Rev . 136, 136 .
73 Du Bois, The Philadelphia Negro
(1899); Du Bois, The Negro
American Family (1908) .
74 Frazier, Ethnic Family Patterns: The
Negro Family in the United States (1932) .
75 Evans, Feminist Theory Today: An
Introduction to Second-Wave
Feminism (1995) p . 13 .
76 See Craig v. Boren (1976) 429 U .S . 190,
198–99; Beal, Double Jeopardy: To be Black
and Female (2008) 8 Meridians 166, 167 .
77 Beal, supra, at p . 167, Jones, Labor of
Love, Labor of Sorrow: Black Women,
Work and the Family from Slavery
to the Present (1985) (hereinaf-
ter “Labor of Love”) pp . 62-66 .
78 See Testimony of Dr . Jacqueline Jones,
supra; Campbell, Making Black
Los Angeles: Class, Gender, and
Community, 1850-1917 (2016), pp . 39–68 .
79 Campbell, supra .
80 Hooks, The Will to Change: Men,
Masculinity, and Love
(2005) pp . 5-10, 18-35 .
81 Ibid .
82 See generally Smith, et al ., Racial Battle
Fatigue and the MisEducation of Black
Men: Racial Microagressions, Societal
Problems, and Environmental Stress
(2011) 80 J . of Negro Education 63 .
83 Wingfield, The Modern Mammy and the
Angry Black Man (2007) 14 Race,
Gender & Class 196, 198-199 .
84 Hooks, supra, at pp . 127-129; see gener-
ally Smith, et al ., supra.
85 See, e .g ., Jones, Labor of Love, supra,
pp . 58-64 .
86 Testimony of Dr . Jacqueline Jones,
supra; see generally Kessler-Harris, Out
to Work: A History of Wage-Earning
Women in the United States (New
York: Oxford University Press, 2003);
Benson, Counter Cultures: Saleswomen,
Managers, and Customers in American
Department Stores, 1890-1940 (Urbana:

University of Illinois Press, 1986) .
87 Jones, Labor of Love, supra, at p . 64 .
88 Id. at pp . 64-65 .
89 Testimony of Dr . Jacqueline Jones,
supra .
90 Ibid .
91 Ibid .; Jones, Labor of
Love, supra, at p . 59 .
92 Jones, Labor of Love, supra, at p . 59 .
93 Testimony of Dr . Jacqueline Jones,
supra; see generally Kessler-
Harris, supra; Benson, supra .
94 Testimony of Dr . Jacqueline Jones,
supra; see generally Kessler-
Harris, supra; Benson, supra .

292
Chapter 8 Pathologizing Black Families
95 Jones, American Work: Four Centuries
of Black and White Labor (New York:

W . W . Norton, 1998) pp . 222-232 .
96 Ibid .
97 Ibid .
98 Stein, Past and Present Proposed
Amendments to the United States
Constitution Regarding Marriage
(2004) 82 Wash . U . L . Q . 611, 628 .
99 Pace v. Alabama (1883) 106 U .S . 583;
Stein, supra, at p . 629; Melton, Note,
Constitutionality of State Anti-miscegenation
Statutes (1951) 5 Southwestern L . J .
452, 453 (“Precedent being estab-
lished, the state courts uniformly
upheld these laws for over half a
century until [Perez v. Sharp] .”) .
100 Stein, supra, at pp . 629–630 .
101 Cruz & Berson, Laws that Banned Mixed
Marriages (May 2010) Ferris State
University – Jim Crow Museum of
Racist Memorabilia (as of Aug . 13,
2021); Stein, supra, at p . 628, fn . 82 . In
addition, Washington, Kansas, and
New Mexico “prohibited interracial
marriages when they were territories,
but repealed them when they became
states .” Stein, supra, at p . 628, fn . 82 .
102 Sohoni, Unsuitable Suitors: Anti-
Miscegenation Laws, Naturalization
Laws, and the Construction of Asian
Identities (2007) 41 L . & Soc . Rev .
587, 594; Viñas-Nelson, supra .
103 Cruz & Berson, supra.
104 Sohoni, supra, at p . 594 .
105 Kennedy, supra, at p . 222
106 Ibid .
107 Ibid .
108 See Ibid .
109 Angyal, I Don’t Want to be an Excuse for
Racist Violence Anymore (June 22, 2015)
New Republic (as of Jan . 26, 2022);
Hodes, The Sexualization of Reconstruction
Politics: White Women and Black Men in the
South after the Civil War (1993) 3 J . of the
History of Sexuality 402, 408-412, 417 .
110 Hodes, supra, at p . 409 .
111 Id. at pp . 410-411 .
112 Kennedy, supra, at p . 214 .
113 Ibid .
114 Id. at p . 215 .
115 (1967) 388 U .S . 1 .
116 Fuke, supra, at p . 63 .
117 Burnham, Property, Parenthood, and
Peonage: Reflections on the Return
to Status Quo Antebellum (1996)
18 Cardozo L . Rev . 433, 437 .
118 See, e .g ., Mason, The Farmer’s
Apprentice: African American Indentures
of Apprenticeship in Virginia (May 27,
2020) The Uncommon Wealth: Voices
from the Library of Virginia .
119 Ibid .
120 Smallwood, Emancipation and the Black
Family: A Case Study in Texas (1977)
57 Soc . Sci . Q . 849, 851 .
121 Ibid .
122 Ibid .
123 Fuke, supra, at p . 63 .
124 Id. at pp . 62-63, 67, Smallwood, supra,
at p . 851 .
125 Testimony of Dr . Jacqueline Jones;
California Task Force to Study and
Develop Reparation Proposals for
African Americans (Oct . 13, 2021),
Testimony of Dr . Cheryl Grills
https://oag .ca .gov/ab3121/meet-
ings/102021> (as of Apr . 11, 2022) .
126 See Burnham, supra, at p . 436 .
127 Id. at pp . 439-448 .
128 Fuke, supra, at pp . 63-64 .
129 Farmer-Kaiser, Freedwomen and the
Freedmen's Bureau: Race, Gender,
and Public Policy in the Age of
Emancipation (2010) p . 106 .
130 Weaver, The Changing Tides of Adoption:

Why Marriage, Race, and Family Identity
Still Matter (2018) 71 SMU L . Rev . 159,
168; Gutman, supra, at pp . 402-410 .
131 In re Turner (C .C .D . Md . 1867) 24 F .Cas .
337, 339 .
132 Ibid .
133 Ibid .
134 Burnham, supra, at pp . 439-440 .
135 In re Turner, supra, at p . 339 .
136 Ibid .
137 Burnham, supra, at pp . 442-443 .
138 Fuke, supra, at p . 63 .
139 See, e .g ., Burnham, supra, at p . 439 .
140 Fair Labor Standards Act of 1938, 29
U .S .C . §§ 203, 213(1940) .
141 Testimony of Rebecca Dixon, National
Employment Law Project, From
Excluded to Essential: Tracing the Racist
Exclusion of Farmworkers, Domestic
Workers, and Tipped Workers from the Fair
Labor Standards Act, Hearing before
the U .S . House of Representatives
Education and Labor Committee,
Workforce Protections Subcommittee
(May 3, 2021) (as of Apr . 12, 2022) .
142 See generally Gregory, The Southern
Diaspora: How the Great Migrations
of Black and White Southerners
Transformed America (2005) .
143 Tolney, The Great Migration and Changes
in the Northern Black Family, 1940 to 1990
(1997) 75 Social Forces 1213, 1213-1214 .
144 See, e .g ., Wilkerson, The Warmth of
Other Suns (2010) pp . 6, 240-241 .
145 Tolney, supra, at pp . 1221-1232 .
146 Id. at p . 1232 .
147 Pascoe, supra, at p . 193 .
148 Stats . 1850, ch . 140, § 3, page 424 . The
act, “An Act regulating marriages,”
is actually older than the state it-
self: it passed on April 22, 1850, just
over four months before California
was granted official statehood .
149 Ibid .
150 Volpp, supra, at p . 822; Pascoe, supra,
at p . 93 .
151 Pascoe, supra, at p . 195 .
152 Perez v. Sharp (1948) 32 Cal .2d 711 .
153 Pascoe, supra, at p . 217 .
154 Volpp, supra, at p . 824
155 Ibid .; Pascoe, supra, at p . 242 .
156 Daniel Moynihan, Office of Policy
Planning and Research, United States
Department of Labor, The Negro Family:

293
Chapter 8 Pathologizing Black Families
The Case for National Action (1965)
(hereinafter, “Moynihan Report”) .
157 Ibid .
158 Ibid .
159 Ibid .
160 Ibid .; Geary, The Moynihan Report:

An Annotated Edition, The
Atlantic (Sept . 14, 2015) .
161 Moynihan Report, supra, at p . 47 .
162 Geary, supra; see also Weaver, African-
American Grandmothers: Does the
Gender-Entrapment Theory Apply? Essay
Response to Professor Beth Richie (2011) 37
Wash . U . J .L . & Pol'y 153, 161 (hereinaf-
ter “Weaver 2011”); Robinson, supra .
163 Moynihan Report, supra, at p . 3 .
164 Id. at p . 29 .
165 See Ibid .; Waters, Some Core Themes of
Black Feminism, in Black Women's
Intellectual Traditions: Speaking
Their Minds (Kristin Waters & Carol
B . Conaway eds ., 2007) p . 377 .
166 Geary, supra .
167 Ibid .
168 Geary, Moynihan’s Anti-Feminism (July 1,
2015) Jacobin Magazine
(as of Apr . 13, 2022) .
169 Franklin, Ensuring Inequality: The
Structural Transformation of the
African-American Family (1997) p . 39 .
170 Du Bois (1908), supra, at p . 36 .
171 Franklin, supra, at p . 138 .
172 Ibid .
173 Ibid .
174 Coates, supra .; see generally Hill, The
Strengths of Black Families (1972) .
175 Geary, supra .
176 Ibid .
177 Coates, supra .
178 Ibid .
179 Randolph & Rustin, A Freedom Budget
for All Americans (Annotated) (Feb . 2018)
The Atlantic (as of Apr . 13, 2022) .
180 Coates, supra.
181 Randolph & Rustin, supra .
182 See, e .g ., Ryan, Blaming the Victim
(Vintage Books 1976) p . xii; Peller,
The Moynihan Report, Self-Help, and
Black Power (2016) 8 Geo . J .L . &
Mod . Critical Race Persp . 39, 41 .
183 Weaver 2011, supra, at p . 161 .
184 Geary, supra .
185 See Ibid .
186 Ibid .
187 Chow & Bates, As Da 5 Bloods Hits Netflix,
Black Vietnam Veterans Recall the Real
Injustices They Faced During and After the
War (June 12, 2020) Time Magazine .
188 Geary, supra.
189 Robinson, supra .
190 Ibid . (citing Murray, Losing Ground
(1984)); Murray, The Bell Curve:

Intelligence and Class Structure in
American Life (1994); see Jacoby &
Glauberman, The Bell Curve Debate
(1995) (accumulating critical studies
undermining the central premises
of “The Bell Curve”); Geary, supra .
191 See, e .g ., Steinberg, The Moynihan
Report at Fifty (June 24, 2015) Boston
Review (as of Apr . 13, 2022) .
192 McMillian, From Loving Mother to
Welfare Queen to Drug Addict? Lebron
v. Secretary of Florida Department of
Children and Families and the Evolving
Public View of the Poor as a Class of
Sub-Humans with Sub-Rights (2016)
35 Miss . C . L . Rev . 197, 210–211 .
193 Ibid . (noting that then-Senator
Moynihan was adamantly opposed
to the elimination of the modern
federal welfare program in 1996);
Robinson, supra; Baldwin, Stratification
of the Welfare Poor: Intersections of
Gender, Race, and “Worthiness” in Poverty
Discourse and Policy (2010) 6 The Modern
American 3, 9; Minoff, supra .
194 Floyd et al ., TANF Policies Reflect Racist
Legacy of Cash Assistance (Aug . 4, 2021)
Ctr . on Budget & Pol’y Priorities, p . 10 .
195 Id.. at pp . 10-11 .
196 Sribnick & Johnsen, The Historical
Perspective: Mothers’ Pensions (2012)
Institute for Children, Poverty
& Homelessness, p . 29 .
197 Moehling, Mother’s Pensions and Female
Headship (2002) Yale University, pp .
12-18, 31 table 9 (analyzing data from
Alabama, Florida, Georgia, Louisiana,
Mississippi, North Carolina, South
Carolina, Tennessee, and Virginia) .
198 Ibid . at pp . 2-3, 12-18 .
199 Testimony of Dr . Jacqueline Jones,
supra; Jones, Labor of Love, pp . 163-194 .
200 Moehling, supra, at pp .
12-18, 31 table 9 .
201 Ibid .
202 Gallo, Marrying Poor: Women’s
Citizenship, Race, and TANF Policies
(2012) 19 UCLA Women’s L .J . 61, 80 .
203 See Moehling, supra, at p . 17 .
204 Handler & Hasenfeld, The Moral
Construction of Poverty: Welfare
Reform in America (1991) p . 70 .
205 Briggs, supra, at p . 31 .
206 Ibid .
207 Moehling, supra, at p . 7 .
208 Floyd et al ., supra, at p . 10 .
209 Title IV, Social Security Act, Pub . L .

No . 74-271 (1935) 49 Stat . 620 .
210 Lawrence-Webb, supra, at p . 11 .
211 Id. at pp . 11-12 .
212 Ibid .
213 Id. at pp . 20-21 .
214 See Ibid .
215 See, e .g ., Burnham, supra, at p . 439 .
216 Briggs, supra, at p . 38 .
217 Ibid .
218 Ibid .
219 Ibid .; see also Ards et al ., Racialized
Perceptions and Child Neglect (2012)
34 Child Youth Serv Rev . 1480 .
220 Pub . L . No . 104-193 (1996) (Personal
Responsibility and Work Opportunity
Reconciliation Act of 1996) .
221 Ibid .
222 Ibid .
223 Floyd et al ., supra, at pp . 29-31 .
224 Ibid . at p . 32 .

294
Chapter 8 Pathologizing Black Families
225 Hinton et al ., An Unjust Burden: The
Disparate Treatment of African
Americans in the Criminal
Justice System (2018) Vera
Institute of Justice, p . 6 .
226 Ibid .
227 Floyd et al ., supra, at p . 31 .
228 Id. at p . 32 .
229 Id. at p . 33 .
230 Id. at pp . 29-33 .
231 See Moehling, supra, at p . 17 .
232 Floyd et al ., supra, at p . 20; Turner,
Reagan Cuts $503-Million From the Budget
Passed by California Legislature (July 4,
1971) N .Y . Times (as of Mar ., 7, 2022) .
233 See Congressional Resource Service,
The Temporary Assistance for Needy
Families (TANF) Block Grant: Responses
to Frequently Asked Questions (Dec . 14,
20201), Appendix B-1 (as of Mar . 8,
2022); see also Azevedo-McCaffrey &
Safawi, To Promote Equity, States Should
Invest More TANF Dollars in Basic Assistance
(Jan . 12, 2022) Center on Budget and
Priorities (as of Mar . 7, 2022) (noting that
“states only spend a little over one-fifth
of their combined federal and state
TANF dollars on basic assistance”) .
234 Compare Center on Budget and
Priorities, California TANF Spending
(as of Mar . 7, 2022) with Center on
Budget and Priorities, California TANF
Spending Factsheet (as of Mar . 7, 2022) .
235 Azevedo-McCaffrey & Safawi, supra .
236 Children’s Bureau, Child Welfare
Practice to Address Racial
Disproportionality and Disparity
(Apr . 2021) U .S . Dept . of Health
and Human Services, pp . 2-3 .
237 Cooper, Racial Bias in American Foster
Care: The National Debate (2013) 97 Marq .

L .Rev . 215, 230; Sedlak & Broadhurst,
Third National Incidence Study
of Child Abuse and Neglect: Final
Report (1996) U .S . Dept . of Health
and Human Services, Administration
for Children and Families, p . 8–7;
see generally Dettlaff et al ., It Is Not a
Broken System, It Is a System That Needs
to Be Broken: The UpEND Movement to
Abolish the Child Welfare System (2020)
14 J . of Public Child Welfare 500
(hereinafter “Dettlaff et al . 2020”) .
238 Dettlaff et al . 2020, supra (quoting
congressionally-mandated na-
tional incidence study of 1996) .
239 Sedlak et al . Supplementary Analyses
of Race Differences in Child
Maltreatment Rates in the NIS-4
(Mar . 2010) U .S . Dept . of Health and
Human Services, Administration for
Children and Families, p . 1; Sedlak, et
al ., Fourth National Incidence Study
of Child Abuse and Neglect (NIS–4):

Report to Congress (Jan . 2010) U .S .

Dept . of Health and Human Services,
Administration for Children and
Families, pp . 9-10, 20-21; see gener-
ally Bartholet, Race & Child Welfare:

Disproportionality, Disparity, Discrimination:

Re-assessing the Facts, Re-thinking the
Policy Options (July 2011) Harvard Law
School Child Advocacy Program .
240 White, Federally Mandated Destruction of
the Black Family: The Adoption and
Safe Families Act (2006) 1 Nw . J . L .
& Soc . Pol'y 303, 305; Ladner,
Mixed Families: Adopting Across
Racial Boundaries (1978) p . 67 .
241 Hogan & Siu, Minority Children and the
Child Welfare System: An Historical
Perspective (1988) 33 Soc . Work 493, 493 .
242 Id. at p . 494 .
243 Ramey, Child Care in Black and White
(2012) pp . 159–161 .
244 See Billingsley & Giovannoni,
Children of the Storm (1972) pp . 132–134 .
245 White, supra, at p . 305; Landner,
supra, at pp . 67-68 .
246 Ibid .
247 Fenton, In a World Not Their Own: The
Adoption of Black Children (1993)
10 Harv . Black Letter J . 39, 42 .
248 Roberts, Shattered Bonds: The Color
of Child Welfare (Basic Civitas
Books, 2002), p . 27
249 Ibid .
250 Lawrence-Webb, supra .
251 Roberts, Prison, Foster Care, and the
Systemic Punishment of Black Mothers
(2012) 59 UCLA L . Rev . 1474, 1480–1481 .
252 Ibid .
253 See Ibid .
254 Oversight on the Implementation of
the Indian Child Welfare Act of 1978,
Hearing before Sen . Select Com .
on Indian Affairs, 98th Cong ., 2d
Sess ., at pp . 35–36 (Apr . 25, 1984) .
255 Id.
256 Dettlaff, et al . 2020, supra; Children’s
Bureau, supra, pp 2-3 .
257 Dettlaff, et al ., Disentangling
Substantiation: The Influence of Race,
Income, and Risk on the Substantiation
Decision in Child Welfare (2011) 33 Children
and Youth Services Review 1630,
1634–1635; Miller, Racial Disproportionality
in Washington State’s Child Welfare System
(June 2008) Washington State Institute
for Public Policy; Rivaux et al ., The
Intersection of Race, Poverty, and Risk:

Understanding the Decision to Provide
Services to Clients and to Remove Children
(2008) 87 Child Welfare 151, 151–152 .
258 Rivaux, supra, at pp . 161-162 .
259 Children’s Bureau, supra, pp . 2-
260 Ibid .
261 Clifford & Silver-Greenberg, Foster
Care as Punishment: The New Reality of
‘Jane Crow’ (July 21, 2017) N .Y . Times .
262 Ibid .
263 Ibid .
264 Ibid . .
265 Dettlaff et al . 2020, supra .
266 Children’s Bureau, supra, at pp . 2-3;
Cooper, supra .
267 Clark, My Experiences in Foster Care,
Children's Rights (May 24,
2015) (as of Mar . 9, 2022) .
268 Ibid .
269 Ibid .
270 Williams-Mbengue, The Social and
Emotional Well-Being of Children in Foster
Care (May 9, 2016) Nat . Conference
of State Legislatures, p . 2 .

295
Chapter 8 Pathologizing Black Families
271 Urban Inst ., Coming of Age: Employment
Outcomes for Youth Who Age
Out of Foster Care Through Their
Middle Twenties (2008) p . 28 .
272 Squiers, Aging Out of Foster Care: 18 and
On Your Own (Mar . 30, 2017) Shared
Justice (as of Aug . 24, 2021) .
273 Ibid .
274 Ibid .
275 Ibid .
276 Billingsley & Giovannoni,
supra, at p . 88 .
277 Palcheck, Child Welfare and the Criminal
System: Impact, Overlap, Potential Solutions
(Mar . 24, 2021), Georgetown J . on
Poverty L . & Pol’y (as of Aug . 25, 2021) .
278 Ibid .
279 Anspach, The Foster Care to Prison
Pipeline: What It Is and How It
Works (May 25, 2018), TeenVogue
(as of Aug . 25, 2021) .
280 E .g ., Dettlaff et al ., supra, at pp .
500–517 .
281 KidsData, Children in Foster Care, by
Race/Ethnicity (2018) (as of Aug . 27, 2021) .
282 Compare Ibid . with Children’s
Bureau, supra, pp . 2-3 .
283 Tiano, Los Angeles’ Plan to Address the
Overrepresentation of Black and LGBTQ
Youth in Foster Care (May 22, 2019)
The Imprint (as of Aug . 25, 2021) .
284 KidsData, supra .
285 Ibid .
286 Los Angeles County Blue Ribbon
Com . on Child Protection, The
Road to Safety for our Children (Apr .
18, 2014) (as of Apr . 15, 2022) .
287 Needell et al ., Black Children and Foster
Care Placement in California (2003) 25
Children & Youth Servs . Rev . 393, 405 .
288 Lurie, Child Protective Services
Investigates Half of All Black Children
in California (Apr . 26, 2021) Mother
Jones (as of Aug . 27, 2021) .
289 Urban Inst ., supra, at p . 8 .
290 Children’s L . Ctr ., Foster Care Facts (as
of Aug . 27, 2021) (as of Apr . 15, 2022) .
291 Leecia Welch, California’s AB 12: Historic
Step Toward Helping Foster Youth
Attend College, But Much Work
Ahead (July 1, 2012) Nat . Center for
Youth Law (as of Nov . 9, 2021) .
292 Beam, California Approves 1st State-
funded Guaranteed Income for Former
Foster Youth (July 15, 2021) Youth
Today (as of Aug . 19, 2021) .
293 Univ . of Cal ., Current and Former Foster
Youth (as of Nov . 9, 2021); Cal . State Univ .,
Resources for Foster Youth (as of Aug . 24,
2021); Cal. Comm. Colleges, Foster Youth
Success Initiatives (as of Nov . 9, 2021) .
294 Tiano, supra .
295 Ibid .
296 Henning, The Rage of Innocence:

How America Criminalizes Black Youth
(Pantheon Books 2021) p . xv; U .S . Dept .
of Justice, Office of Juvenile Justice
and Delinquency Prevention, Statistical
Briefing Book: Juvenile Arrest Rates by Race,
1980-2019 (2019) (as of Apr . 15, 2022);
Puzzanchera, Juvenile Arrests, 2018 (June
2020) U . .S . Dept . of Justice, Juvenile
Justice Statistics National Report
Series Bulletin (as of Apr . 15, 2022) .
297 Nat’l Council of Juvenile & Family Ct .

Judges, Addressing Bias in Delinquency
and Child Welfare Systems (2018) 1 .
298 Henning, supra, at p . xvi;
Puzzanchera, supra, at p . 8 .
299 Henning, supra, at p . xvi .
300 Ibid .
301 Id. at p . 105; Fact Sheet: Incarcerated
Women and Girls, Sentencing Project,
June 2019 (as of Apr . 15, 2022) .
302 Henning, supra, at p . 105 .
303 Id. at p . 246 .
304 Id. at p . 29 .
305 Goff et al ., The Essence of Innocence:

Consequences of Dehumanizing Black
Children (2014) 106 J . of Personality
and Social Psychology 526, 526–545 .
306 Henning, supra, at p . 123 .
307 Id. at p . 127 .
308 Id. at p . 124 .
309 Ibid .
310 Ibid .
311 See id. at p . 130 .
312 Ibid .; Gun-Free Schools Act of 1994, 20
U .S .C . §§ 8921-8923 (1994); Violent
Crime Control and Law Enforcement
Act, Pub . L 103-322, 108 Stat . 1796
(1994); Office of Community
Oriented Policing Services, Abou
313 Henning, supra, at p . 124 .
314 Id. at p . 132 .
315 Ibid .
316 U .S . Government Accountability
Office (Mar . 22, 2018) K-12
Education: Discipline Disparities for
Black Students, Boys and Students with
Disabilities (as of Apr . 15, 2022) .
317 Henning, supra, at p . 53 .
318 Id. at p . 52 .
319 Id. at p . 137
320 Id. at p . 138
321 Ibid .
322 Shivaram, Black Kids In California More
Likely To Be Hospitalized For Police-Related
Injuries (Sept . 9, 2021) NPR (as of Apr . 15,
2022); Farkas et al ., Injuries to Children
and Adolescents by Law Enforcement: An
Analysis of California Emergency Department
Visits and Hospitalizations, 2005-2017
(2021) 176 JAMA Pediatrics 89, 89 .
323 Ibid .
324 California Task Force to Study and
Develop Reparation Proposals for
African Americans (Jan . 28, 2022),
Testimony of Dr . Howard Stevenson
https://oag .ca .gov/ab3121/meet-
ings/012022> (as of Apr . 15, 2022) .
325 Goff et al ., supra .
326 Thiem, et al ., Are Black Women and Girls
Associated With Danger? Implicit Racial
Bias at the Intersection of Target Age and
Gender (2019) 45 Personality and Social
Psychology Bulletin 1427, 1427–1439 .
327 See, e .g ., Hockenberry &
Puzzanchera, supra, at pp . 21, 26-27 .
328 Henning, supra, at p . 214 .
329 Ibid .

296
Chapter 8 Pathologizing Black Families
330 Ibid .
331 Id. at p . 14; Hockenberry &
Puzzanchera, supra, at p . 24 .
332 Henning, supra, at pp . 124-125 .
333 Id.
334 Marrast et al ., . Racial and Ethnic
Disparities in Mental Health Care for
Children and Young Adults: A National
Study (2016) 46 Internat . J . of
Health Services 810, 810-824 .
335 Cancio et al ., The Color of Justice: The
Landscape of Traumatic Justice: Youth of
Color in Conflict with the Law (2019) The
Alliance of Nat . Psychological Assns .

For Racial and Ethnic Equity, p . 17 .
336 Henning, supra, at p . 247 .
337 Ibid .
338 Id. at p . 275 .
339 Cal . Dept . of Justice, Attorney General
Becerra Secures Settlements with Barstow
and Oroville School Districts to Address
Discriminatory Treatment of Students
Based on Race and Disability Status (Aug .
25, 2020) (as of Apr . 15, 2022) .
340 Ibid .
341 Henning, supra, at p . 134 .
342 Ibid .; Wilson & Godown, School
Security Officer Policy and Procedures Manual
(June 29, 2016) Oakland School District .
343 Henning, supra, at p . 134 .
344 Id. at p . 141; Losen & Martinez, Is
California Doing Enough to Close the
School Discipline Gap? (Los Angeles:

Civil Rights Project, 2020); Losen &
Martinez, Lost Opportunities: How
Disparate School Discipline Continues
to Drive Differences in the Opportunity
to Learn (Los Angeles: Civil Rights
Project, 2020), pp . 33–34; Fisher &
Hennessy, School Resource Officers and
Exclusionary Discipline in U.S. High Schools:

A Systematic Review and Meta-analysis
(Aug . 2016) Adolescent Research Review
1, no . 3; Weisburst, Patrolling Public
Schools: The Impact of Funding for
School Police on Student Discipline
and Long-term Education Outcomes
(2019) Journal of Policy Analysis and
Management, Vol . 38 (2), pp . 338-365 .
345 Henning, supra, at p . 78 .
346 Id. at p . 79 .
347 Id. at p . 220
348 Id.
349 Taft et al ., Intimate Partner Violence
Against African American Women:

An Examination of the Socio-Cultural
Context (2019) 14 Aggression and
Violent Behavior 50, 50-58 .
350 Rennison & Welchans, Intimate
Partner Violence (Sept . 2009)
U .S . Dept . of Justice, Bureau
of Justice Statistics, p . 3 .
351 Catalano & Snyder, Female Victims of
Violence (Jan . 2014) Violence Policy
Center (as of Mar . 10, 2022) .
352 Seng et al ., Disparity in Posttraumatic
Stress Disorder Diagnosis among
African American Pregnant Women
(2011) 14 Archives of Women’s
Mental Health 295, 295-306 .
353 Palmetto et al ., Predictors of Physical
Intimate Partner Violence in the Lives of
Young Women: Victimization, Perpetration,
and Bidirectional Violence (2013) 28
Violence and Victims 103, 103-121;
Langhinrichsen-Rohling et al ., Rates
of Bi-directional versus Uni-directional
Intimate Partner Violence across
Samples, Sexual Orientations, and Race/
Ethnicities: A Comprehensive Review
(2012) 3 Partner Abuse 199, 199–230 .
354 See generally Nat . Coalition Against
Domestic Violence, Domestic Violence
and the LGBTQ Community (June 6, 2018)
(as of Mar . 10, 2022); Waters, Lesbian,
Gay, Bisexual, Transgender, Queer, and
HIV-Affected Intimate Partner Violence
in 2015 (2016) Nat . Coalition of Anti-
Violence Programs (as of Mar . 10, 2022) .
355 Jones & Thorpe, Domestic Violence and
the Impacts on African American Women:

A Brief Overview on Race, Class, and
Root Causes in the United States (2016)
7 OMNES : The J . of Multicultural
Society 22, 22-36 (as of Mar . 10, 2022) .
356 See generally, e .g ., Hampton et al .,
Domestic Violence in the African-American
Community (2009) 9 Violence Against
Women 533, 539; Blassingame,
The Slave Community (Oxford
University Press 1972); Levine, Black
Culture and Black Consciousness
(Oxford University Press 1977) .
357 Hampton et al ., supra, at p . 539; see
generally Madhubuti, Black Men—Single,
Dangerous, and Obsolete (Third World
Press 1990); Staples, Black Masculinity:

The Black Man’s Role in American
Society (Black Scholar Press 1982) .
358 Hampton et al ., supra, at p . 539; see
generally Madhubuti, Black Men—Single,
Dangerous, and Obsolete (Third World
Press 1990); Staples, Black Masculinity:

The Black Man’s Role in American
Society (Black Scholar Press 1982) .
359 Sumter, Domestic Violence and Diversity:

A Call for Multicultural Services (2006)
29 J . of Health and Human Services
Administration 173, 175-176, 178-179 .
360 Sokoloff & Dupont, Domestic Violence at
the Intersections of Race, Class, and
Gender Challenges: Contributions to
Understanding Violence against Marginalized
Women in Diverse Communities (2005) 11
Violence against Women 38, 38-64 .
361 Young et al ., Does African American
Women’s Racial Identity Mediate
Gendered Racism on Anticipated
Relationship Threat? (2021) 36 J . of
Interpersonal Violence 9749, 9752 .
362 See, e .g ., Carbone-Lopez et al ., “Police
Wouldn’t Give You No Help” Female Offenders
on Reporting Sexual Assault to Police (2015)
22 Violence against Women 1, 1-31 .
363 Manetta, Interpersonal Violence and
Suicidal Behavior in Midlife African
American Women (1999) 29 J . of Black
Studies 510, 518; see generally Richie,
Arrested Justice: Black Women,
Violence, and America’s Prison Nation
(New York University Press 2012) .
364 Coburn Place, A Layered Look at
Domestic Violence in the Black
Community (as of Mar . 10, 2022) .

297
Chapter 8 Pathologizing Black Families
365 Harrison-Quintana et al ., Injustice at
Every Turn: A Look at Black Respondents in
the National Transgender Discrimination
Survey (as of Mar . 10, 2022) .
366 Nat . Coalition of Anti-Violence
Programs, National Report on Hate Violence
Against Lesbian, Gay, Bisexual, Transgender,
Queer and HIV-Affected Communities
Released Today (May 29, 2014)
(as of Mar . 10, 2022) .
367 See, e .g ., Finoh & Sankofa, The Legal
System Has Failed Black Girls, Women,
and Non-Binary Survivors of Violence
(Jan . 28, 2019) Am . Civil Liberties
Union (as of Mar . 10, 2022) .
368 Asbury, African-American Women in
Violent Relationships: An Exploration
of Cultural Differences, in Hampton,
Violence in the Black Family: Correlates
and Consequences (1987) pp . 86-
106; Hampton & Yung, Violence in
Communities of Color: Where We Were,
Where We Are, and Where We Need to
Be, in Jenkins & Gullotta, Preventing
Violence in America (1996) pp . 53-86 .
369 Blue Shield of California Foundation
Perceptions of Domestic Violence
in California’s African American
Communities: Roots, Prevalence and
Resources (Feb . 2019), p . 11 (as of Apr .
15, 2022) (hereinafter “Blue Shield
of California Foundation 2019”) .
370 Id. at p . 12 .
371 Blue Shield of California Foundation,
Key Insights into the Experiences of Black
Californians from a Statewide Survey about
COVID-19, Equity, and Domestic Violence
(Apr . 2021) (as of Mar . 25, 2022) .
372 Blue Shield of California Foundation
2019, supra, at p . 17 .
373 Id. at p . 20 .

Control Over Creative, Cultural & Intellectual LifeCHAPTER 9 I . Introduction
At its inception, the United States created a series of laws and policies that denied African Americans the ability
to create and own art and engage in sports and leisure
activities . 1 During the period of enslavement, state gov- ernments controlled and dictated the forms and content
of African American artistic and cultural production . 2 Following the end of the enslavement period, govern-
ments and politicians embraced minstrelsy, which was
the popular racist and stereotypical depiction of African Americans through song, dance, and film . 3 Government support of minstrelsy, which was enormously profitable, encouraged white Americans to laugh at, disregard,
and reimagine the enslavement of African Americans
as harmless and entertaining . 4
Federal and state governments failed to protect Black
artists, culture-makers, and media-makers from
discrimination and simultaneously promoted discrim-
inatory narratives . State governments forced Black
artists to perform in segregated venues . 5 The feder- al government actively discriminated against African
Americans during wars, and projected a false image of
respect for Black soldiers in propaganda . 6 Federal and state governments allowed white Americans to steal
African American art and culture with impunity—de-
priving Black creators of valuable copyright and patent protections . 7 State governments encouraged segre-
gation and discrimination against African American
athletes . 8 State governments denied African American entrepreneurs and culture-makers access to leisure
sites, business licenses, and funding for leisure activi- ties . 9 State governments memorialized the Confederacy as just and heroic through monument building, while
suppressing the nation’s actual history . 10 States censored cinematic depictions of discrimination against and in-
tegration of Black people into white society . 11 Today, African American artists, culture-makers, presenters,
and entrepreneurs must contend with the legacy of
enslavement and racial discrimination as they attempt
to pursue creative endeavors that empower and uplift
Black communities .

COURTESY OF PHOTO BY LIBRARY OF CONGRESS/CORBIS/VCG VIA GETTY IMAGES People picketing under the marquee of the Republic Movie Theatre against race discrimination featured in the movie, The Birth of a Nation. (1947)

299
Chapter 9 Control Over Creative, Cultural, & Intellectual Life Section III describes discrimination against Black art- ists . Section IV discusses the anti-Black narratives
in American culture . Sections V and VI discuss gov-
ernment censorship and deprivation of intellectual
property . Sections VII and VIII discuss discrimination against Black athletes and restraints on recreation by
African Americans .

II . Discrimination Against Black Artists and Culture
Black artists have faced intense discrimination and re- striction in the United States since the era of slavery .

During the period of enslavement, enslaved people
faced legal restrictions from many state governments
while creating arts, crafts, and engaging in education . 12 Many enslaved people were highly talented craftspeople
and artists, including seamstresses and tailors, black- smiths, woodcutters, and musicians of all types . 13 They fabricated architectural materials, furnishings, musical instruments, such as banjos, and handicrafts, like bas- kets and rugs . 14 Free African American artists did engage in self-expression during the period of enslavement,
however they had to rely on outside resources or wealthy white patrons to support their careers . 15
Many white enslavers were suspicious of the subversive
potential of Black art . 16 After 1730, South Carolina out- lawed dancing, drumming, and playing loud instruments
by enslaved people for fear that it would incite rebel- lions—other states enacted similar laws . 17 Concerned that literate enslaved people would incite insurrections, some southern enslavers banned enslaved people from
learning to read or write . 18 Enslaved people who were not allowed to read or write, instead, developed traditions of song and dance to pass along subversive messages and resist slavery—and to share routes for escape . 19 Enslaved people created music during the period of enslavement,
but they could not capitalize on their creative efforts the way that white people could . 20 Yet, through work songs, call and response, cries, and hollering, enslaved people coordinated labor, communicated with one another, and
commented on the oppression they suffered . 21
Black artists were subject to segregation by custom and by law, enforced by state and local governments . 22 Black musicians were forced to join segregated local chapters of professional musician associations, which were seg-
regated due to racism in the music industry . 23 They were prohibited from employment in city symphonies, radio
stations, and clubs outside of segregated Black neigh-
borhoods—due to racist employers, unions, and police
enforcement of segregation . 24 Concert venues were of- ten segregated due to racist customs . 25
Black musicians were subject to arbitrary, racist rules . 26 They could not make eye contact with white Americans
who were usually standing right in front of the stage,
while African Americans were confined to balconies . 27 Black musicians also could not stay at many hotels, were banned from restaurants, and were often served rotten
food at others . 28 Such customs were enforced by state and local police . 29 Black artists who challenged segre- gation were met with violence—for
example, a musician in Georgia was
brutally beaten for refusing to say
“sir” in response to a white man’s
question at a concert in 1951 . 30 Black
artists were driven from white towns
in the south, barred from perform-
ing, and chased by white people
brandishing guns . 31 An interracial
all-woman jazz group performed at some integrated con-
certs, but were occasionally turned away and even jailed . 32 Consequently, governments failed to investigate or pros- ecute racist violence against African American artists .

Black sacred spirituals, hymns, gospel music, and free- dom songs deeply influenced 20th-century American
popular music . 33 Many acclaimed and influential
American musical artists began their careers in Black
church choirs . 34 Black churches birthed gospel mu-
sic—sound rooted in spirituals sung during slavery,
integrated with chanting, clapping, and group participa- tion . 35 Gospel choirs began broadcasting on public radio stations and church memberships grew to thousands . 36
Much of the music of the civil rights movement was in-
spired by gospel and congregational hymns . 37
Despite creating and innovating styles of music, such
as blues, gospel, rhythm and blues, soul, jazz, rock and roll, and disco, Black musicians and artists suffered from limited opportunities for financial success . 38 White art- ists appropriated and profited from Black music . 39 For example, under the 1909 copyright act, a record could
Many enslaved people were highly talented craftspeople
and artists, including seamstresses and tailors, blacksmiths, woodcutters, and musicians of all types.

300
Chapter 9 Control Over Creative, Cultural, & Intellectual Life be covered only after obtaining a license from the orig- inal artist . 40 However, many Black musicians’ contracts robbed them of these copyright protections . 41 This led to a licensing regime that prevented Black musicians from
gaining financial success . 42 Black musicians recorded music on “race records,” which were played on segregat- ed radio stations and marketed only
to African Americans . 43 During the
1920s and 1930s, Black musicians
were subjected to contracts where
the copyright for their work would
be assigned to their employer, while
being paid less than white musi-
cians who had similar contracts . 44
For example, Elvis Presley imitated
Black blues and R&B singers, and
due to these exploitative contracts, the original song cre- ators whose work he appropriated were not even paid
for the use of their music . 45 One of Elvis' hit songs, “That's All Right Mama,” was originally written and recorded by Arthur Crudup, a Black man who was paid so little for his recordings that he had to work as a laborer selling sweet potatoes . 46 This type of appropriation was so pervasive that many Americans did not understand that these
art forms were invented by Black artists . 47 The federal government neglected to take action to protect African
American artists from financial exploitation .

African Americans have historically been discriminated
against by governments and employers for their fash-
ion, hair, and appearance through criminalization and
fines . 48 The United States Army did not allow African Americans to wear their hair in locs (locks, dreads, or dreadlocks) until 2017 . 49 Black women in the army had been forced to straighten their hair with chemicals or
hot irons, wear expensive and uncomfortable wigs, or
cut their hair off to abide by the army’s hair regulations . 50 Many states passed laws that prohibited sagging clothes in public places, and instituted a significant fine or jail sentence if an individual was caught sagging pants . 51 Sagging originated from hip-hop culture, and sagging
laws target Black boys and criminalize Black adolescent fashion, inviting police to intrude in Black life . 52 In 2007, Shreveport, Louisiana passed a law banning sagging, re- sulting in Black men accounting for 96 percent of those arrested for sagging . 53 Schools have removed African American students for hairstyles that have violated their dress codes . 54 A Black student at a Texas school was told that he could not attend his prom because his locs were too long . 55 The CROWN Act, which stands for Creating a Respectful and Open World for Natural Hair, would
prohibit discrimination based on hair texture or hair-
style . 56 While this act has been introduced in Congress, as of March 2022, it has not been passed . 57 As of 2021, only 13 states have passed versions of the CROWN Act . 58 Many African American fashion designers who were
influential in American fashion history, whose clients
included first ladies and government officials, suffered from racism that was supported by federal and state gov- ernments . 59 Elizabeth Keckley was a Black woman and
fashion designer who dressed the first lady, Mary Todd
Lincoln . 60 Keckley was born an enslaved person and
suffered violence and sexual assault from white enslav- ers . 61 Keckley worked as a seamstress for several years, attempting to raise money to pay back the loans she used to purchase her freedom . 62 She faced legal restrictions in establishing her business—including the requirement
that a white man vouch for her freedom . 63 Ann Lowe
was a Black woman and fashion designer, who designed
Many white enslavers were suspicious of the subversive potential of Black art. After 1730, South Carolina outlawed dancing, drumming, and playing loud instruments by enslaved people for fear that it would incite rebellions—other states enacted similar laws.

Black fashion designer, Ann Lowe, adjusting the bodice of a gown she designed, worn by Alice Baker. (1962)

COURTESY OF BETTMANN ARCHIVE VIA GETTY IMAGES

301
Chapter 9 Control Over Creative, Cultural, & Intellectual Life the wedding dress Jacqueline Bouvier wore when she
married Senator John . F . Kennedy along with many oth- er gowns for an exclusive clientele . 64 Lowe worked as a seamstress with her mother on a plantation in Alabama
and later made dresses for wealthy white women in the
South . 65 She could not get credit or rent a workspace in the business district in the South, and was forced to op- erate out of a segregated neighborhood . 66 Ann Lowe did not receive recognition in the fashion industry, despite her well-loved designs . 67
Rap music, one of the most culturally potent and com-
mercially successful forms of Black expression in the
latter half of the 20th century, has been criminalized by federal, state, and local governments . 68 By the late 1980s, rappers were unable to book performances and were
being subjected to intrusive searches and surveillance . 69 Rap lyrics and videos have been used in criminal trials to associate Black artists with crimes and to prove the substance of threats or incitements to violence during
trial and sentencing . 70 One scholar found hundreds of cases in which rap lyrics have been used as evidence in criminal prosecutions . 71 Writing rap lyrics and making rap music videos has led to Black students being disci- plined . 72 In Bell v. Itawamba County Sch. Bd. (2015), the U .S .

Court of Appeals for the Fifth Circuit stated that a school could discipline a student for a rap music video he made off-campus, after learning that two white teachers al-
legedly sexually harassed several Black students . 73
Law enforcement agencies and local governments have
attempted to chill or criminalize the sale of rap albums based on their content, sometimes cancelling rap per-
formances outright . 74 For example, law enforcement
agencies attempted to suppress the music of Compton rap group N .W .A .’s 1988 debut album, “Straight Outta Compton,” and particularly their song “Fuck Tha Police .” 75 In 1989, the Assistant Director of the Federal Bureau of Investigation Office of Public Affairs sent a letter to the distributor of the album, criticizing the group’s lyrics regarding law enforcement and making the record label “aware of the
FBI’s position relative to this song and its message .” 76 Law enforcement officials have attempted to prohibit record stores from selling rap albums to minors . 77 During a 1989 N .W .A . concert in Detroit, law enforcement in the crowd, which reportedly contained 200 police officers, rushed
the stage and ended the concert early . 78
California
In California, city governments decimated thriving
Black neighborhoods with vibrant artistic communi-
ties . 79 California theaters denied
entry to Black patrons . 80 In 1876,
Charles Green, a African American
man, was explicitly denied entry
into the Maguire’s New Theater in
San Francisco . 81 The theater owner
was sued by the U .S . Attorney but a
jury acquitted him after the judge
excluded evidence . 82 Decades later,
from the 1930s to 1960s, Black pro-
jectionists and other movie house
workers fought for employment
and equal wages at movie houses—
striking, negotiating, and picketing
in the face of violent confrontations
with local police . 83 In San Francisco,
African American artists had limited
opportunities due to segregation . 84
The bassist, Vernon Alley, described
“the time in San Francisco when
black bands couldn't play east of Van
Ness Avenue, and that's true . I was a
part of it .” 85 Alley stated that white
musicians’ unions fought against
Black musicians who attempted to
play in downtown San Francisco . 86 Many Black musicians struggled to make a living by playing behind curtains for tourists or out of sight at strip clubs . 87 Consequently, the state openly allowed segregation and discrimination against Black musicians, workers, and artists .

Black Californians continue to face discrimination in
the television and film industries in California . In 1940,

COURTESY OF BETTMANN ARCHIVE VIA GETTY IMAGES
Hattie McDaniel with her Academy Award. At the awards ceremony she was forced to sit at a separate table because the hotel in which it was held did not allow Black people into the building. (1940)

302
Chapter 9 Control Over Creative, Cultural, & Intellectual Life when Hattie McDaniel became the first Black actor to
receive an Academy Award, she was forced to sit at a
separate table because the hotel in which the awards
ceremony was held did not allow Black people into the
building . 88 Today, research has shown that Hollywood studio executives associate casting Black actors with fi- nancial risk . 89 In a vicious cycle, Black-led projects are characterized as economically inviable; therefore, they are underfunded, despite earning higher returns . 90
Black actors face a lack of opportunity and Black peo-
ple are underrepresented in top management in the
film and television industries, as well as in off-screen talent in Hollywood . 91 The state has failed, overall, to adequately engage in civil rights enforcement in the mo- tion picture industry .

For a brief period in the 1940s and 1950s, the Fillmore neighborhood in San Francisco was home to a vibrant
African American community and referred to by locals
as “the Harlem of the West .” 92 The Fillmore was home to a vibrant Black jazz scene, social clubs, and was an im- portant cultural hub . 93 In the 1950s and 1960s, the City of San Francisco tore down Black-owned jazz clubs and busi- nesses and built an expressway through the district in the name of “redevelopment .” 94 (See Chapter 5 on housing .) In the 1930s and 1940s, the zoot suit, a particular style of suit with a long coat and loose pants, became an icon of resistance against assimilation for communities of col- or . 95 The increase in migration of Mexican Americans and African Americans to Los Angeles resulted in the
growth of interracial communities of color, which were
targeted by the Los Angeles Police Department . 96 To con- front the dehumanizing social and economic conditions
imposed by the wartime political economy, local offi-
cials, and the mainstream press, the zoot suit became a symbol of resistance for those who wore it . 97 However, in the eyes of state officials and law enforcement, the zoot suit and those who wore it were labelled as criminal and hypersexual . 98
African Americans in Los Angeles were victims of
the mob violence and criminalization by local po-
lice that preceded and followed the Zoot Suit Riots of
Los Angeles . 99 In June 1943, the Zoot Suit Riots of Los Angeles stemmed from tensions between white ser-
vicemen at the new Naval Reserve Armory and local
Mexican American youth . 100 Violence broke out as gangs of white sailors attacked brown and Black youth in zoot suits . 101 On the worst day of the violence, white soldiers and civilians poured into Los Angeles and attacked the
Black neighborhoods of Watts, as well as other neigh-
borhoods around Los Angeles . 102
All 94 nonwhite civilians who were
seriously injured were arrested by
the Los Angeles Police Department,
compared to only two of the 18
white servicemen who participat-
ed . 103 The police arrested and jailed
Mexican American and African
American victims of the mobs rath-
er than the white sailors . 104 The Los
Angeles Police Department engaged in preventative en-
forcement based on racial profiling, targeting African
Americans among other communities in Los Angeles . 105
Law enforcement efforts to publicize crackdowns on
youth resulted in hundreds of arrests in the summer
of 1942 . 106 This show of force was designed to reassure white middle classes that wartime police forces could
maintain law and order by rounding up innocent youth
of color, many of whom were Black . 107
Local governments in California have discriminated
against, punished, and penalized Black students for their fashion, hairstyle, and appearance . In March 2018, at
Tenaya Middle School in Fresno, school officials pulled a Black student out of class for a haircut with shaved-in designs . 108 They cited a dress code policy and separated him from other students . 109 They also prevented him
In San Francisco, African American artists had limited
opportunities due to segregation. The bassist, Vernon Alley, described “the time in San Francisco when black bands couldn’t play east of Van Ness Avenue, and that’s true. I was a part of it.” Watts, California- Armed with clubs, pipes and bottles, this self-appointed posse of uniformed men was all set to settle the Zoot Suit War when the Navy Shore Patrol stepped in and broke it up. All 94 nonwhite civilians who were seriously injured were arrested by the Los Angeles Police Department, compared to only two of the 18 white servicemen who participated. (1943)

COURTESY OF BETTMANN ARCHIVE VIA GETTY IMAGES

303
Chapter 9 Control Over Creative, Cultural, & Intellectual Life from going to lunch and gave him extra work to com-
plete . 110 In 2015, a Black biracial student was not allowed to attend school in Clovis because his hair was too long, in violation of the school dress code . 111 The student was given a warning, a subsequent lunch detention, two
hours of after school detention, a four-hour after school detention, and three additional unofficial violations . 112 Historically, state-funded California museums have ex-
cluded Black art from their institutions . In 2019, the Los Angeles Museum of Contemporary Art began an infor-
mal audit of its collection to increase the representation of Black Artists . 113 In 2020, the museum announced a list of new acquisitions that included Black artists
such as Lauren Halsey, LaToya Ruby Frazier, and Senga
Nengudi . 114 The University of California, Los Angeles’s Hammer Museum engaged in a similar audit . In July
2020, the longest tenured curator at the San Francisco
Museum of Modern Art resigned after stating that he did not believe in discrimination . 115 The resignation was re- lated to a larger problem at the museum with respect to racial equality . 116 The museum’s staff is only four percent Black and employees report that key leadership posi-
tions are dominated by white Americans . 117
California has also criminalized Black rap artists . Law Angeles law enforcement leaders had been targeting
rapper Nipsey Hussle’s businesses, before and after
his death in 2019—alleging gang activity and stopping
hundreds of people in a predominantly Black neigh-
borhood, while making very few arrests . 118 For over 20 years, California courts allowed rap lyrics to be used as evidence related to street gang activity . 119
III . Anti-Black Narratives in Arts and Culture
The federal government has produced and promot-
ed anti-Black narratives through a series of racist and white supremacist cultural projects across time, be-
ginning with minstrelsy . Minstrelsy was a performance
of “Blackness” by white Americans in exaggerated cos-
tumes and black make-up, known as blackface . 120 White Americans distorted the hair and facial features of
African Americans and demeaned their language, ac-
cents, mannerisms, and character . 121 The first minstrel shows were performed in the 1830s in New York by white
people with blackened faces and torn clothing . 122 These performances depicted African Americans as lazy, igno-
rant, superstitious, hypersexual, and criminal . 123
In 1830, Thomas Dartmouth Rice created the popular
blackface character, “Jim Crow .” 124 By 1845, the minstrel show led to the creation of a whole entertainment in-
dustry that thrived on prejudicial stereotypes against
African Americans . 125 Blackface minstrelsy grew after the end of the Civil War alongside racial hatred, and the legal segregation laws that proliferated across the country af- ter the end of the war took their name from this primary character in minstrel shows . 126 Minstrel performances eventually expanded beyond the stage and entered radio
and television airwaves, as well as movie theaters . 127 The minstrel performance became a cross-generational racial parody and stereotype made for white amusement . 128 The performance of minstrelsy relied on racist stereotypes
that dehumanized African Americans . 129 This dehu-
manizing allowed white Americans to secure their own
positive identity . 130 Minstrelsy repeated and entrenched this dehumanization into national and local American
culture . 131 Watching and engaging in demeaning depic- tions of African Americans, like blackface performances, was even a common pastime for U .S . presidents . 132
The federal government endorsed
dehumanizing narratives of African
Americans as violent and propagat-
ed white supremacist narratives of
the Ku Klux Klan as saviors of the
nation through the medium of cin-
ema . The Birth of a Nation, which bore
its origin title The Clansman, for its
first month of screenings, is an un-
apologetically racist 1915 silent film
directed by D .W . Griffith . 133 The film,
which premiered in Los Angeles at Clune’s Auditorium,
takes place between the Civil War and Reconstruction . 134 Essentially a powerful propaganda tool, it glorifies the rise of the KKK, the white supremacist terrorist group, and depicts them as white saviors attempting to “restore order” to the nation . 135 Woodrow Wilson had the film shown at the White House—a federal government en-
dorsement of white supremacy and anti-Blackness . 136
The minstrel performance became a cross-generational racial parody and stereotype made for white amusement. The
performance of minstrelsy relied on racist stereotypes that dehumanized African Americans. This dehumanizing allowed white Americans to secure their own positive identity.

304
Chapter 9 Control Over Creative, Cultural, & Intellectual Life From the silent film era through the 1950s, the U .S .

Department of Agriculture (USDA) was an important
filmmaking agency in the federal government . 137 The
films produced by the USDA reinforced problematic
racial stereotypes against Black communities . 138 USDA motion pictures supported separate-but-equal laws
and customs . 139
Government war propaganda
during World War II employed the
strategic use of motion pictures as
war propaganda . 140 This propaganda
achieved two intertwined objectives,
a false image of American democra-
cy and the reinforcement of racist
stereotypes about Black people . 141
The Office of War Information, a
government censorship agency,
blocked racial depictions of discrim-
ination against nonwhite people to
show a falsely ideal racial democracy . 142 The Office of War Information also approved blackface and jokes perpetu-
ating and relying upon Black stereotypes . 143
Federal and state governments have constructed rac-
ist monuments on state property and altered school
curriculum—glorifying slavery and white supremacy,
perpetuating the “Lost Cause” myth, and erasing Black
history . 144 State and local governments have collaborat- ed with the United Daughters of the Confederacy, which
seeks to memorialize and preserve Confederate culture
for future generations, 145 to memorialize the “Lost Cause” myth—that the rebels were patriots and not traitors to the nation . 146 Organized and systematic efforts to manipu- late and distort the nation’s history—began immediately after the end of the Civil War . 147 These included erecting Confederate monuments, many of them placed on court-
house grounds; naming schools, streets, and military
bases after Confederate officers; and lobbying Congress for holidays . 148 The construction of these monuments co- incided with a historical period in which increased racial terror through lynching and violence against Black people was at an all-time high . 149 (See Chapter 3 on racial terror for more information .) Monument construction has co-
incided with moments in which Black communities seem
to gain some political power or voice . 150 The Supreme Court ruling of Brown v. Board of Education, which declared segregation unconstitutional, and the civil rights move- ment triggered another wave of Confederate monuments
across the country . 151
Federal and state governments have
enacted laws to protect Confederate
monuments and other monuments
to white supremacy . 152 Alabama,
Mississippi, North Carolina, South
Carolina, Tennessee, and Virginia
recently enacted these laws be-
tween 2012 to 2017 . 153 In 2009, the
U .S . Supreme Court also protected
government monuments from free
speech challenges in Pleasant Grove
City v. Summum—a protection that in-
cludes Confederate monuments . 154
African Americans were denied ac-
cess to the mainstream media for
much of American history, due to
segregation and racism . 155 Since
the 2000s, many newspapers have
apologized for blatantly racist news
coverage that they have engaged in
Little Richard protesting record companies over royalties. Little Richard sold the rights to the song “Tutti Fruity” for a reported $50, and received half a cent for each record sold. “I was a dumb black kid and my mama had 12 kids and my daddy was dead,” Little Richard reportedly said, “I wanted to help them, so I took whatever was offered.” (1984)

COURTESY OF BETTMANN ARCHIVES VIA GETTY IMAGES
The Office of War Information, a government censorship agency, blocked racial depictions of discrimination against nonwhite people to show a falsely ideal racial democracy. The Office of War Information also approved blackface and jokes perpetuating and relying upon Black stereotypes.

305
Chapter 9 Control Over Creative, Cultural, & Intellectual Life for over a century-long period that encompasses the
slavery era to today . 156 Consequently, African Americans formed their own media—the Black press .

Freedom's Journal was one of the first of many subsequent Black newspapers and publications that would be formed
throughout the United States . 157 These publications
advocated for community cohesiveness, demonstrat-
ed racial pride, and challenged legislation . 158 The staff members of small, struggling Black publications of-
ten risked their lives to refute white supremacy in the news . 159 Ida B . Wells was a journalist for the Memphis weekly known as The Free Speech . 160 She conducted inves- tigations, finding that mobs regularly lynched innocent victims as part of a racial terror regime . 161 This was work that should have been done by federal and state law en- forcement agencies . She found that the Black men who
were charged with raping white women were often in-
volved in consensual relationships with them . 162 After she published her findings in an editorial, a white mob destroyed The Free Speech, suffering no legal consequenc- es . 163 Black newspapers like The Baltimore Afro-American, The Chicago Defender, and The Pittsburgh Courier served as a corrective to the lies of the white press, and advanced the early civil rights movement . 164
African Americans were often invisible in white press
and mainstream media, unless they were alleged to have
committed crimes . 165 They were often denied courtesy titles such as Mrs . and Mr ., which were given to white Americans . 166 When African Americans were cast in
television shows, they acted out nar-
ratives crafted by white Americans
that pigeonholed them in roles as
domestics, criminals, brutes, or
lazy and deceitful . 167 In 1945, John
H . Johnson established Ebony mag-
azine—one of the first magazines
to be founded by and operated for
African Americans . 168 Ebony high-
lighted historical figures who had
been left out of textbooks . 169 The
magazine also worked with corpo-
rations who sought to advertise to
African American communities . 170
In 1979, Robert Johnson (no relation
to John H . Johnson), a cable industry
lobbyist, started a television chan-
nel called Black Entertainment Television (BET) . 171 By the 1990s, he sold BET to Viacom for $2 .3 billion, making him the first African American billionaire in U .S . history . 172 American television has a sordid history of creating televi- sion shows and series that reinforce racism against African Americans and are written, conceived, and produced by
white Americans . 173 White Hollywood has been complic- it in the racist practices that thwarted Black freedom
struggles . 174 The first Black sitcom originated from a ra- dio program called Amos ‘n’ Andy, in the 1940s, in which two white men portrayed Black characters . 175 According to testimony by Dr . Darnell Hunt before the California Task Force to Study and Develop Reparation Proposals for African Americans, “[C]rime procedurals were found to
routinely glamourize policing and to legitimize the crimi- nal justice system, while downplaying the degree to which African Americans are racially profiled and victimized by both .” This finding is particularly alarming given what we know about the normalizing effects of media, about
the potential for media, in this case, to condition police officers, prosecutors, juries, judges, and/or vigilantes to perceive Black bodies as a threat, and police violence against them as justified .” 176 This is important because, as Erika Alexander stated in her testimony, “[s]tory is the conduit to our mind, but once the seed is planted, it is the quickest way to our heart .” 177
The television industry was almost entirely white for
many of its initial decades . 178 Black writers and actors in the 1970s faced exclusion at nearly every turn . 179 Television executives held the racist presumption that
white writers could write for any audience, but Black
writers only could contribute to Black shows . 180 The Black screenwriters who are employed by mainstream
television networks are often tasked with crafting ste- reotypical narratives of Black people and story lines that are acceptable to white producers, studio executives,
and viewers . 181 In 2005, the gap in median annual salary between white and Black writers in the television indus- try was nearly $15,000 . 182 According to a 2017 survey of the television industry, 91 percent of shows are led by white creators and producers . 183 Only 1 .3 percent of U .S . full-power commercial TV stations were Black-owned in
2019 . 184 African Americans are largely underrepresented Ida B. Wells was a journalist for the Memphis weekly known as The Free Speech. She conducted investigations, finding that mobs regularly lynched innocent victims as part of a racial terror regime. This was work that should have been done by federal and state law enforcement agencies. She found that the Black men who were charged with raping white women were often involved in consensual relationships with them. After she published her findings in an editorial, a white mob destroyed The Free Speech, suffering no legal consequences.

306
Chapter 9 Control Over Creative, Cultural, & Intellectual Life in the entertainment industry . 185 While they com-
prise 12 .4% of the general population in 2020, African Americans only constituted 3 .9% of major studio heads, 6 .8% of network CEOs . 186 They comprised 4 .5% of broad- cast show creators, and 7 .4 % of digital show creators for the 2019-2020 season . 187 Federal and state governments have neglected to address the anti-Black discrimination in the entertainment industry .

The buying practices of radio advertisers in the U .S . have been characterized by the Federal Communications
Commission (FCC) as racially discriminatory—minority
broadcasting stations earn 63 percent less than other
stations with comparable market shares . 188 Despite this, the FCC has failed to enact regulations to protect Black radio stations and media businesses . 189 Of the 11,000 commercial radio stations across the country, fewer
than 180 are owned by African Americans—about 1 .6 per- cent of the total . 190 Carole Cutting is a Black radio station owner who started a jazz station in 1999 in Springfield, Massachusetts—where there were no Black-owned radio
stations . 191 She went through a 15-year legal battle to be able to finally get her broadcast license and is the only African American to own a commercial radio station, AM
or FM, in New England . 192
In 2020, the National Association of Black-Owned
Broadcasters called on Congress to pass a bill that
would reinstate a tax incentive to encourage people to
sell radio stations to members of minority communi-
ties and women . 193 The legislation would bring back a tax break enacted in 1978 to account for the history of racism in broadcast licensing . 194 In the years it was in effect, minority ownership increased, however, in 1995, the tax incentive was overturned by Congress . 195 African Americans have proposed that the FCC approve a new
technology called radio geo-targeting—that would allow
radio stations to provide geographic-specific traffic,
weather, public interest information, and advertising
to their local communities . 196 Geo-targeting would al- low Black radio stations to better engage listeners, allow for more Black ownership, and more effectively reach
African American communities . 197 As of September
2021, the proposal was pending FCC approval . 198
Consequently, the federal government has engaged
in discriminatory regulation of the media, which has
harmed Black media professionals and business owners .

Black women face excessive racism and discrimination
on social media today . In 2018, Amnesty International
and Element AI found that Black women on Twitter were
84 percent more likely than white women to receive
hateful tweets . 199 Despite this harassment, Black women online are innovators who contribute greatly to digital cultural spaces . 200 Black activists say that their remarks on racism are disproportionately stifled on Facebook . 201 California
In the 1850s, blackface minstrelsy dominated entertain- ment in San Francisco . 202 Minstrel songs were played during a banquet for the new University of California
president in 1899 . 203
California has been home to racist monument and me-
morial construction for centuries . The Native Sons of the Golden West is a California organization that has erected racist monuments throughout the state . 204 It was formed on July 11, 1865 with the goal of honoring the Forty Niners, the first white people to settle in California and take ad- vantage of the gold rush and has erected monuments
through the state . 205 In the 1920s, the Native Sons of the Golden West Grand President wrote that “California
was given by God to a white people, and with God’s
strength we want to keep it as He gave it to us .” 206 The United Daughters of the Confederacy had 14 chapters
across California 207 and erected plaques, monuments,
and other memorials dedicated to Confederate generals
and soldiers across California, such as in Monterey and San Diego, throughout the 1940s and 1950 . 208
California has erected a great number of Confederate
monuments, including a dozen or more state markers
and cemetery memorials . 209 Some of these monuments
were erected by southern veterans of the Confederacy
who moved to southern California after the Civil War
and sought to memorialize their service through the cre- ation of monuments . 210 The Mendocino coastal town of Fort Bragg is named after a Confederate army general
Cemetery workers cover a confederate monument at Santa Ana Cemetery after it was defaced with orange paint. The monument honored confederate soldiers who fought for the Confederate States of America during the Civil War. (2019)

COURTESY OF PAUL BERSEBACH/MEDIANEWS GROUP/ORANGE COUNTY REGISTER VIA GETTY IMAGES

307
Chapter 9 Control Over Creative, Cultural, & Intellectual Life and enslaver, as of March 2021, the town has not yet
changed its names despite numerous requests . 211
In the radio, film, and television industries, California has neglected to adequately address widespread dis-
crimination . Out of the hundreds of radio stations in
California, only two are Black owned . 212 The State of California has, overall, neglected to enforce the civ-
il rights of Black people or address the widespread
practice of anti-Black discrimination in Hollywood . 213 African Americans have been depicted in crude ste-
reotypical film roles in Hollywood: as servants, rapists, and enslaved people—or they were barred from roles in
films altogether . 214
The Los Angeles Times apologized for being “an institu- tion deeply rooted in white supremacy” for most of its
history and admitted to a record that included indiffer- ence and “outright hostility” toward the city’s nonwhite population—acknowledging the underrepresentation of
Black journalists in the newsroom . 215 For instance, the Times won a Pulitzer Prize for its coverage of the August 1965 civil unrest in Watts . While much of the Watts story’s content was reported by a 24-year-old Black advertising messenger, Robert Richardson, the reporters and editors of record were nearly all white . 216 Richardson covered the disturbances, driving to the scene and phoning in his reports . 217 He was designated a “reporter trainee” after the uprisings but was only provided minimal mentor-
ship or opportunities to enhance his skills . He left the paper the following year . 218
In contrast, California’s Black newspapers hired Black
reporters and writers and invested in them . From 1850
to 1870, the earliest Black news-
papers published in California
included The Mirror of the Times, The
Pacific Appeal, and The Elevator . 219
These newspapers emphasized
civil rights, community, and ra-
cial politics . 220 Writers and editors
were free to be activists and jour-
nalists . 221 The California Eagle was
founded in 1879 and helped ease
African Americans’ transition to
the west—providing them with
housing and job information, and other information
essential to surviving in a new environment . 222 With Charlotta Spears Bass at the helm, over the years, the
Eagle protested racism in the motion picture industry,
in the military, and successfully waged battles against discriminatory hiring in Los Angeles—work that should
have been done by the state government . 223 The state government has failed to prevent discrimination in
mainstream media in California .

California’s Social Media Transparency and
Accountability Act of 2021, Assembly Bill 587, would re- quire social media platforms to publicly disclose their corporate policies regarding online hate, disinforma-
tion, extremism, harassment, and foreign interference,
as well as key metrics and data regarding the enforce-
ment of those policies . 224 However, the bill only applies to social media companies that have at least $100 mil-
lion in revenue—which would exclude many websites
where racist commentary and discourse is highly prev-
alent, such as Parler . 225 As a result, California’s attempts to address white supremacy and racism targeted at
African Americans online may still leave many vulner-
able to abuse . In conclusion, the State of California
has promoted blackface minstrelsy, funded confed-
erate monuments, and neglected to enforce the civil
rights of African American artists, culture makers, and media makers .

IV . Racist Censorship
State censorship of depictions of African Americans in
movies, art, and books was constitutional until 1952 . 226 The institutions that regulated cinema, including the
Production Code Administration, state censorship
boards, and film studios themselves, produced a warped
and racist view of African American life in cinema . 227 State government censorship was strongest from 1915
to 1952 . 228 States with active censorship boards focused on censoring miscegenation, the depiction of Black
women’s sexuality, depictions of racial discrimination
and lynching, and depictions of integration . 229 States engaged in censorship to generate cultural narratives
that upheld white supremacy, and rendered it invisi-
ble to the public—erasing depictions of Black power,
humanity, and anti-Black state violence . 230 After the U .S . Supreme Court banned state censorship in 1952,
The Los Angeles Times apologized for being “an institution deeply rooted in white supremacy” for most of its history and admitted to a record that included indifference and “outright hostility” toward the city’s nonwhite population—acknowledging the underrepresentation of Black journalists in the newsroom.

308
Chapter 9 Control Over Creative, Cultural, & Intellectual Life Hollywood began to casually depict violence against
African Americans on screen . 231 Scholars argue that
the proliferation of these scenes has helped normalize
anti-Black violence in society . 232
States and local governments have engaged in racist cen- sorship of books written by Black authors, primarily in public schools and in prisons . Many public high schools across the nation have banned acclaimed novels written
by Black authors . 233 Toni Morrison’s acclaimed novels have been banned for “depicting the inappropriate topic of…racism,” and for being “filthy,” in 1998 in Florida, and 2007 in Kentucky . 234 Texas law prohibits teachers from portraying slavery and racism as “anything other than
deviations from, betrayals of, or failures to live up to the authentic founding principles of the United States,”—ex- plicitly prohibiting the New York Times’s 1619 Project, which places African Americans and the consequences of slav-
ery at the center of American history . 235 In 2021, in York, Pennsylvania, an all-white school board banned books
related to racial justice, which mentioned key Black civil rights leaders, such as Rosa Parks and Dr . Martin Luther King, Jr .— stating that they “may lean more toward in- doctrination rather than age-appropriate academic
content .” 236 After sustained protests from community members, students, and teachers,
the school board reversed the ban . 237
State officials across the country
have banned books on the en-
slavement of Black people, civil
rights, and novels by Black authors
in prisons and carceral settings . 238
For example, as of 2021, Wisconsin
bans Ralph Ginzburg’s 100 Years of
Lynching, but allows incarcerated people to read Adolf
Hitler’s Mein Kampf—presumably the first was banned
for obscenity and yet the latter was deemed to be ac-
ceptable . 239 Florida banned the Equal Justice Initiative’s Lynching in America report—one of the most compre-
hensive reports available on the lynching of African
Americans—because it was supposedly a threat to
prison security . 240 To maintain the lie of white cultural supremacy, state governments have therefore partici-
pated in censoring African American artistic work that
was critical of American institutions, deemed subver-
sive, or threatened white supremacy .

California
In the 1930s, Black activists protested pro-lynching films at movie theaters, fought against Hollywood’s depictions of Black people, and tried to use film to promote the
fight for civil rights . 241 Early films that depicted lynch- ing scenes included Frisco Kid (1935), Barbary Coast (1935), Fury (1936), and They Won’t Forget (1937) . 242 These films made African Americans “nauseous” because they glo-
rified and applauded lynching—even when the person
being lynched was not Black . 243 These films encouraged and justified lynching at a time when the lynching of
African Americans was still highly prevalent . 244
Many public schools and prisons in California have
censored the literature of Black authors . The Oakland
Board of Education banned Alice Walker’s book The Color Purple in 1984, due to "troubling ideas about race rela- tions, man's relationship to God, African history, and
human sexuality”—approving it only after nine months
of community advocacy . 245 At Irvington High School in Fremont, Richard Wright’s novel Native Son, was banned
for being “unnecessarily violent” in 1998 . 246 At the state level, the California Department of Corrections and
Rehabilitation still maintains a list of banned books for its prisons . 247
V . Deprivation of Black Intellectual Property
The federal government’s copyright laws routinely
deprived African American artists of legal protection be- cause this regime allowed art created by Black artists to be appropriated and stolen by white artists . 248 As a result of complex and convoluted requirements of the 1909
Copyright Act, artists unfamiliar with legal requirements could easily find their works injected into the public do- main . 249 This resulted in the loss of economic rights and copyright protection—which resulted in generations of
lost wealth for African Americans . 250 Additionally, the federal and state governments have not legally allowed
descendants of enslaved people to own art made by their enslaved ancestors or photographs taken of their en-
slaved ancestors—depriving them of rightful earnings . 251 The Oakland Board of Education banned Alice Walker’s book The Color Purple in 1984, due to “troubling ideas about race relations, man’s relationship to God, African history, and human sexuality”— approving it only after nine months of community advocacy.

309
Chapter 9 Control Over Creative, Cultural, & Intellectual Life Even though Black people were leaders in invention,
they could not access patent protections due to in-
stitutional racism and state-sanctioned anti-Black
discrimination and violence . 252 There are estimates
that racial violence accounts for 1,100 missing patents won by African Americans . 253 Cyrus McCormick re-
ceived a patent for the mechanical reaper, even though
it was actually invented by Jo Anderson, a man who
was enslaved by the McCormick family . 254 Obtaining
a patent was difficult and expensive, and some Black
inventors could not afford a lawyer . 255 Some patent
applications may have been rejected due to racial dis-
crimination . 256 To avoid discrimination, some African Americans relied on white partners to apply for pat-
ents under the white person’s name . 257 One inventor, Henry Boyd, invented a new type of bed frame and
partnered with a white man who applied for the patent
in his name . 258
Obtaining a patent was more difficult for Black artists and innovators because it often involved working with
white lawyers who engaged in racist and unfair deal-
ings—and the federal government
took no action to ensure that Black
innovators’ patents were proper-
ly documented and preserved . 259
Black innovators faced additional
professional and financial barriers,
in addition to racism, that white
innovators did not face . 260 In 1913,
the U .S . Patent Office surveyed
approximately 8,000 registered
patent attorneys and found 1,200
inventions attributed to people of African American an- cestry . 261 However, the Office was only able to confirm 800 of them—a large undercount because attorneys
reported failing to recall the names or inventions of
some of their Black clients . 262 This failure to recall the names of Black inventors and their inventions result-
ed in African American inventors being cheated out of
profits for their creative work . 263
Government-enforced racial segregation and disin-
vestment in Black communities resulted in a dearth of
resources that crippled Black invention . 264 These racist practices suppressed the ability of African Americans to receive patents for their inventions . 265 Today, Black pat- entees are underrepresented in America . 266 There are wide disparities between the number of U .S . patents is- sued to Black inventors and the total number of patents issued in general . 267 For example, one 2010 study found that from 1970 to 2006, African American inventors re-
ceived six patents per million people, compared to 235
patents per million for all U .S . inventors . 268 According to Professor Kevin J . Greene’s testimony before the
California Task Force to Study and Develop Reparation
Proposals for African Americans, American copyright
law disadvantages African American creators because
it enables appropriation and under-compensation . 269
There are significant disparities in how Black and white music performers have been compensated for copy-
right use . 270 Professor Greene stated, “It’s not just some problem that happened 200 years ago, it’s a problem
that’s ongoing and happening today .” 271 Throughout
American history, the federal government historically
deprived African American artists and innovators of
intellectual property rights, copyright protections, and patent protections resulting in intellectual and cultural theft and exploitation .

Only 3% of U.S. patents
went to African American
inventors from 1970 to 2006
There are estimates that racial violence accounts for 1,100 missing patents that should have been given to African Americans. Cyrus McCormick received a patent for the mechanical reaper, even though it was actually invented by Jo Anderson, a man who was enslaved by the McCormick family.

310
Chapter 9 Control Over Creative, Cultural, & Intellectual Life VI . Discrimination Against Black Athletes
Following the end of slavery, most Black athletes were
forced to compete in segregated teams, sports, and
organizations . 272 Prior to World War II, some African Americans played sports at white universities—where
they were picked for their talent, yet ridiculed and
mistreated by white students . 273 Despite the inherent inequality of segregation, Black colleges and their foot- ball programs thrived in the mid-20th century . 274 Many Americans believed Historically Black Colleges and
Universities were of lower quality than white higher ed- ucation institutions, so athletic achievement was a way to dispute this narrative . 275 HBCUs had fewer material resources but produced high numbers of professional
athletes—particularly in football . 276
The reintegration of sports was a long and slow process because white Americans who held positions of power
were hesitant to break the tradition of segregation . 277 Most major college athletics programs did not allow
Black players until 1947 . 278 The ‘gentlemen’s agreement’ was a standard, unwritten rule that allowed coaches to
bench Black athletes during intercollegiate contests with all-white colleges and universities . 279 In 1955, Georgia’s Governor asked the State Board of Regents to prohibit
Georgia’s all-white football teams from playing against teams with Black players . 280
During the 1960s, the government and the sports indus-
try punished Black athletes who engaged in racial justice and political protests, or resisted racial oppression . 281 Muhammad Ali, a African American Muslim boxing
champion, was stripped of his world heavyweight title
for refusing to be drafted into the U .S . armed forces . 282 When explaining why he would not join the army, he
pointed out the irony of being drafted to fight on behalf a nation in which he was subjected to racial oppression . 283 “My conscience won’t let me go shoot my brother, or
some darker people…for big powerful America,” he
said . 284 “They never called me nigger, they never lynched me, they didn’t put no dogs on me, they didn’t rob me
of my nationality, rape and kill my mother and father…
Shoot them for what?” 285 Ali was charged with a felony, fined, and banned from boxing . 286 Later the Supreme
Court would overturn his conviction . Justice John
Harlan stated that the government had misinterpreted
the doctrine of Black Muslims by not recognizing Ali as a conscientious objector . 287 Ali experienced racial and religious discrimination by the government—which re-
fused to recognize his religious beliefs and punished him for his resistance to racism .

African American Olympic athletes have faced racial
discrimination in athletics . 288 The Amateur Sports Act of 1978, gave the United States Olympic and Paralympic
Committee, a private organization, exclusive jurisdic-
tion over all matters related to the Olympics . 289 The federal government has provided funding for the
Olympics when they are held in the United States . 290
In 1968, Black Californian track athletes, Tommie
Smith and John Carlos, protested the lack of African
Americans on the United States Olympic Committee,
as well as the stripping of Muhammad Ali’s heavy-
weight belt at the Olympics . 291 They raised their black gloved fists in a Black power salute during the National Anthem, while standing on the victory podiums of the
Olympic Games . 292 Subsequently, the International
Olympic Committee kicked them out of the Olympic
Village and banned protest during the Olympics . 293
When Smith and Carlos returned to America, their
Tommie Smith and John Carlos protested the lack of African Americans on the United States Olympic Committee, as well as the stripping of Muhammad Ali’s heavyweight belt at the Olympics.

They raised their black gloved fists in a Black power salute during the National Anthem, while standing on the victory podiums of the Olympic Games. (1968)

COURTESY OF BETTMANN ARCHIVE VIA GETTY IMAGES

311
Chapter 9 Control Over Creative, Cultural, & Intellectual Life families received death threats . 294 Today, many African American Olympic athletes are discriminated against—
from being suspended for legal marijuana use to being
forbidden from wearing swimming caps designed for
natural Black hair . 295 Most Olympic athletes, many of whom are African Americans, live in poverty and re-
ceive little compensation for their hard work—while
high-ranking Olympic committee executives and orga-
nizers are compensated generously, due to the billions
of dollars in profit from sponsorships, donations, and
broadcasting rights . 296
Similarly, studies have shown that the National Collegiate Athletic Association (NCAA) has profited from the labor of poor Black students, many of whom live below the
federal poverty line—and the United States Supreme
Court has supported this through caselaw . 297 The NCAA prohibits college athletes from being compensated
for their labor . 298 Many public universities, which are government funded, generate millions of dollars in
revenue due to football and basketball teams that are
part of the NCAA . 299 Black students constitute nearly 60 percent of the rosters of football and basketball teams, and just 11 percent of the rosters of all other sports . 300 African American athletes who risk their health and
safety to play these sports while in school do not receive any compensation . 301 Much of the money generated by
football and basketball athletes is spent on salaries for coaches and administrators and on the construction of
lavish facilities . 302
African Americans began to play baseball in the late
1800s and historically joined professional teams with
white players . 303 However, due to racism and legal seg- regation laws, they were forced to leave these teams by 1900 . 304 In 1920, an organized league structure, called the National Negro League, was formed by Black busi-
nesspeople and athletes in Kansas City, Missouri . 305 The leagues were professional and became central to eco-
nomic development in many Black communities . 306 In
1945, the segregation policies of baseball changed when Branch Rickey signed Jackie Robinson of the Negro
League's Kansas City Monarchs to a contract that would
bring Robinson into the major leagues in 1947 . 307
Football has a history of racial discrimination in the
United States, sanctioned by state and federal gov-
ernments . 308 Recently, the NFL has engaged in racist practices against Black athletes—many of whom suffered
brain injuries while playing professional football . 309 The NFL used “race-norming”—a racist medical practice
where Black players were assumed to have lower cog-
nitive function than white players as part of a dementia test to determine payouts in a brain injury settlement . 310 As of January 2022, there was only one Black head coach in the NFL . 311
Tennis, like football, was originally a sport for elite white men . 312 Due to segregation laws, most tennis clubs ex- plicitly or implicitly prohibited African Americans
from participation . 313 Public courts were not fairly dis- tributed in Black neighborhoods
or accessible to Black players . 314
Today, prominent African American
women tennis players, like Serena
Williams, are more likely to be
disciplined, fined, and criticized
while playing . 315
In the early 1950s, the National
Basketball Association (NBA) had
an unspoken rule that there could
not be more than two Black play-
ers on a team, later that number
was expanded to three . 316 More re-
cently, in 2020, African American
women in the Women’s National
Basketball Association went on
strike to protest anti-Black police
violence—building upon a long his-
tory of protests for racial justice . 317
Following the lead of Black women,
Black male professional basket-
ball players in the NBA protested

COURTESY OF BETTMANN ARCHIVE VIA GETTY IMAGES
U.S. women’s team for the 1936 Berlin Olympics. The two African American women pictured, Louise Stokes and Tidye Pickett, qualified three years earlier for the 1932 Olympics in track and field but were not allowed to participate due to their race.

312
Chapter 9 Control Over Creative, Cultural, & Intellectual Life anti-Black police violence in a historic strike—refusing to play games and talk to journalists . 318 Due to their ef- forts, sports arenas in areas with large African American communities were turned into voting locations for the
2020 general election to allow for safe, in-person vot- ing—work that should have been done by federal and
state governments . 319 (See Chapter 4 on political dis- enfranchisement .) There is consequently a history of
racism in basketball, like in many other sports, which
has harmed African American athletes . 320
There have long been inequalities between men’s and
women’s sports—however, for African American wom-
en, this is compounded by race . 321 One of the first
women’s track teams in the United States began at the
all-Black Tuskegee Institute in 1929 . 322 Three years later, two African American women, Louise Stokes and Tidye
Pickett, qualified for the 1932 Olympics in track and field but were not allowed to participate due to their race . 323 Title IX of the Education Amendments of 1972 (Title IX) changed the landscape for women’s sports . It requires
any program or activity that receives federal financial assistance, including sports, to provide equal opportu- nities to all genders . 324 Title IX resulted in a significant increase in women athletes, however, the percentage of
women in coaching positions greatly declined . 325 Today, Black women represent 88 percent of professional wom-
en’s basketball, but there are no Black women in head
coaching positions . 326 Despite Title IX’s legal guarantee of equal opportunity, Black parents have reported more
sports programs for boys than girls in their communi-
ties . 327 Fifty-three percent of white girls are most likely to be involved with sports at age six or younger, while only 29 percent of Black girls are . 328 Due to the lack of Title IX enforcement that centers African American women,
they have suffered the consequences of both racism and
sexism in the sports industry—including underrepresen-
tation in sports leadership and limited access to sports in general . The history of sports in the United States is one of racial discrimination, segregation, and the ex-
ploitation of Black male and female athletes—a history in which governments have played a significant role .

California
Many Black football players experienced discrimination
in California’s colleges and universities . The University of Southern California did not permit black athletes to play until the 1920s . 329 While the University of California, Los Angeles did allow Black players to play in starting positions on its football team, the Los Angeles commu-
nity was not as accepting of Black athletes . 330 At San Jose State College, Black athletes reportedly faced discrimi- nation in athletics, such as overbearing coaches, a lack of academic assistance, exploitative demands made on
Black participants, prejudice outside of the sport, and hostility in the campus Greek system and the local com- munity . 331 Professor Harry Edwards, a sociologist who helped organize Black athletes against discrimination
was called “unfit to teach” by California governor and
later president, Ronald Reagan . 332
Black athletes have often protested discrimination in
sports in California . Take for instance Colin Kaepernick, a Black Californian who was the quarterback for the San Francisco 49ers . 333 In 2016, he knelt during the National Anthem in protest of anti-Black police violence . 334
Subsequently, the President of the United States, said
that he should, “find a country that works better for
him .” 335 The National Football League then stated that it would fine teams whose players did not stand for the National Anthem . 336 Kaepernick was ultimately told he would be released from his contract by the general man- ager and coach of the 49ers . 337 Since then, all NFL teams have refused to sign Kaepernick on as a player, despite his clear record of success and athleticism . 338
The University of California system has also reproduced racial inequities in its revenue-generating athletic pro- grams . 339 It has some of the lowest graduation rates for Black male student athletes, who comprise a large
majority of the male student athlete population, in
comparison to overall graduation rates . 340 As of 2018, the Black male student-athlete graduation rate for the
University of California, Berkeley was 39 percent, much lower than the 91 percent graduation rate for students
overall . 341 The graduation rate for Black male stu-
dent-athletes at the University of California, Los Angeles was 57 percent, while the overall graduation rate was 91 percent . 342 Black male student-athletes rarely accrue the benefits of higher education, beyond athletics . 343 Black athletes report that coaches prioritize athletic accom- plishment over academic engagement and discouraged
participation in activities beyond their sport . 344 Though many Black athletes aspire to become professional play- ers, the NFL and National Basketball Association draft
fewer than two percent of student athletes each year . 345 The University of California system pressures Black
student-athletes to labor for its highly profitable ath- letic programs while they receive no compensation, risk damage to their health, and divert their focus from their education—all for the unlikely chance at being drafted
into professional sports .

313
Chapter 9 Control Over Creative, Cultural, & Intellectual Life VII . Restraints on Black Leisure and Recreation
Across the United States, state and local governments
have prohibited African Americans from participating in leisure . 346 Public parks, recreation centers, and pools 347 and the passageways to access them 348 are located away from Black communities, restricted, or closed . Further, various government statutes, including anti-cruising,
anti-gathering, and curfew laws, have often targeted
African Americans’ ability to enjoy leisure time . 349
California
The State of California engaged in racist restrictions on Black business owners through zoning ordinances, li-
censing laws, fire and safety codes, and anti-nuisance
provisions, which discriminated against Black business
owners and their Black customers . Racist state actions against predominantly Black leisure sites, included de- nying liquor or food licenses and heightened police
surveillance at Black-owned bars and restaurants . 350 In Shaw v. California Dept of Alcoholic Beverage Control, Black tavern owners brought a civil rights action against the California Department of Alcoholic Beverage Control
and the City of San Jose in 1986 . 351 The Black tavern own- ers sued for violation of their civil rights based upon improper revocation of their liquor license and discrim- inatory enforcement of the law . 352 The court agreed that the loss of the bar’s liquor license was due to racially dis- criminatory harassment by the San Jose police force . 353 Cities in California also used eminent domain to
seize the land of Black business owners who sought to
establish leisure enterprises . The Manhattan Beach au- thorities in Southern California, prohibited the growth and development of Black-owned leisure businesses,
such as Bruce’s Beach . 354 In 1912, Ms . Willa “Willie” Bruce purchased two lots near Manhattan Beach from white
real estate brokers for $1,225 . She developed the land with a cottage, food establishment, and store—called
Bruce’s Lodge . 355 The lodge was popular with Black Los Angeles residents . 356 By 1926, six other Black families had bought property near the lodge for vacation homes . 357 This caused many white neighbors and beachgoers to
complain, harass, and attack the Black beachgoers, their families, and their establishments . 358 The Manhattan Beach Board of Trustees and a white Manhattan Beach
resident threatened to report Bruce’s Beach for allegedly selling liquor during the prohibition, so that all the peo- ple on Bruce’s property could be arrested . 359
In 1924, Manhattan Beach authorities enacted new laws
with fines and penalties for violations of parking and
zoning laws to discourage Black visitors . 360 For example, “10 minute only” parking signage was put up to prevent
visitors from staying because parking would be extreme- ly limited . 361 Ordinance 273 prevented “bathhouses”
in same area as Bruce’s, so there could be no further
bathhouse developments or expansions at the beach . 362 In 1924, Manhattan Beach authorities used eminent
domain to condemn the beach as a public park under
the Park and Playground Act of 1909 . 363 This action was petitioned for by white citizens in the area, and backed by Ku Klux Klan members, including those who be-
friended Board of Trustee members . 364 Today, the two parcels of land that were part of Bruce’s Beach are worth an estimated $75 million . 365 In 2021, California Governor Gavin Newsom signed Senate Bill 796, authorizing the
county to transfer the land back to the Bruce family af- ter nearly 100 years . 366 The Los Angeles County Board of Supervisors voted unanimously to begin the process of
transferring the land . 367
Local governments in the State of California restrict-
ed access to public pools for Black Californians . The
Brookside Plunge was a public pool in Pasadena, which
opened on July 4, 1914 . 368 It was initially only open to nonwhite individuals on Wednesday afternoons and
evenings . 369 Eventually, it only opened for a shorter Louise and Byron Kenner in bathing suits at Bruce’s Beach, with a beach house visible behind them.

Bruce’s Beach, in the city of Manhattan Beach, was purchased by Willa and Charles Bruce in 1912.

They built a beach resort. The city closed down the resort in the 1920s by proposing to build a park and imposing eminent domain. (c. 1920)

COURTESY OF MERRIAM MATTHEWS PHOTOGRAPH COLLECTION/UCLA

314
Chapter 9 Control Over Creative, Cultural, & Intellectual Life time—on Tuesdays between 2pm and 5pm—in retaliation
to a legal challenge from Black taxpayers in the area . 370 The Los Angeles branch of the National Association for
the Advancement of Colored People sued the city fol-
lowing the denial of six Black men to the pool . 371 Though they won, Pasadena closed the pool until the NAACP se-
cured an injunction forcing the pool to reopen in 1947
with no racial restrictions . 372 The pool site suffered from a lack of financial support and closed in 1983, leading a local swim coach and several donors to form the AAF
Rose Bowl Aquatic Center . 373 This center was supposed to be open to all, but discouraged
access for Black people due to the
“country club” atmosphere . 374 The
Pasadena city council ignored this
issue and allowed the formation of
the center with public funds . 375
City and county police depart-
ments in California engaged in
targeted harassment of Black owned
businesses that provided leisure op-
portunities to Black Californians .

In 1927, the Parkridge Country Club
was sold to a group of Black entre-
preneurs . 376 After the Ku Klux Klan
burned a cross on the front lawn and white club mem-
bers sued the previous owner for the sale, the Black
entrepreneurs were forced to withdraw their bid . 377
VIII . Conclusion
African Americans have suffered from discrimination in
almost every type of cultural and artistic pursuit, includ- ing arts, sports, leisure, fashion, literature, media, and music . The United States has historically denied African Americans to own their intellectual and artistic proper- ty, engage in leisure activities without restriction, and receive fair compensation for their athletic talent . State and federal governments have endorsed blackface min-
strelsy, promoted racist cinematic depictions of African Americans, allowed segregation in arts and culture, de- nied patents to Black inventors, and punished African
Americans for protesting racial injustice . Federal and state governments failed to protect Black artists, culture-mak- ers, and media-makers from discrimination while
simultaneously promoting discriminatory narratives .

Today, African American artists, culture-makers, pre-
senters, and entrepreneurs must contend with the
legacy of enslavement, as they continue to be deprived
of rightful profits from their intellectual, artistic, ath- letic, and creative labors . African Americans continue to face racial discrimination, difficulties in obtaining patents and copyrights, and at times, are not even com- pensated at all for their creative and physical labors .

African Americans are weighed down by the legacy of
enslavement, echoing the impacts felt by their ances-
tors, even as they attempt to pursue creative endeavors that empower and uplift Black communities .

City and county police departments in California engaged in targeted harassment of Black owned businesses that provided leisure opportunities to Black Californians. In 1927, the Parkridge Country Club was sold to a group of Black entrepreneurs. After the Ku Klux Klan burned a cross on the front lawn and white club members sued the previous owner for the sale, the Black entrepreneurs were forced to withdraw their bid.

THIS PAGE INTENTIONALLY LEFT BLANK

316
Chapter 9 Control Over Creative, Cultural, & Intellectual Life Endnotes
1 Sambol-Tosco, Education, Arts, & Culture
(2004), Thirteen, p . 1 (as of March
20, 2022); Newton, Slave Artisans and
Craftsmen: The Roots of Afro-American Art
(1977), 9(3) Plastic Arts and Crafts, 35 .
2 Ibid .
3 Barnes, Yes, Politicians Wore Blackface. It
Used to be All-American ‘Fun’ (Feb . 8, 2019),
Washington Post (as of March 21, 2022) .
4 National Museum of African American
History and Culture, Blackface: The
Birth of An American Stereotype (Oct . 30,
2017), National Museum of African
American History and Culture (as
of March 21, 2022) (NMAAHC) .
5 Absher, The Black Musician and the White
City: Race and Music in Chicago, 1900-1967
(2014), pp . 1-2, 157 (as of April 6, 2022)
6 Koppes & Black, Blacks, Loyalty, and
Motion-Picture Propaganda in World
War II (Sept . 1986), 73 The Journal
of American History 383 .
7 Rothwell, The Black Innovators Who
Elevated the United States: Reassessing
the Golden Age of Invention (Nov .
23, 2020), Brookings Institution
(as of March 21, 2022) .
8 Reese, The Socio-Political Context of the
Integration of Sport in America (1998), 3(4)
Journal of African American Men, 5-22 .
9 Alison Rose Jefferson, Living the
California Dream: African
American Leisure Sites During
Jim Crow Era (2020) .
10 Cox, Dixies Daughters: The United
Daughters of the Confederacy
and the Preservation of
Confederate Culture (2003) .
11 Scott, Cinema Civil Rights: Regulation,
Repression, and Race in the
Classical Hollywood Era (2015) .
12 Sambol-Tosco, supra, at p . 1 .
13 Ibid .
14 Ibid .
15 National Humanities Center, Artists
(2013), National Humanities Center
(as of March 20, 2022); Douglas A .

Jones Jr ., Black Politics but Not Black
People: Rethinking the Social and "Racial"
History of Early Minstrelsy (2013), 57(2)
The Drama Review 21, 24-25 .
16 Sambol-Tosco, supra, at p . 1 .
17 National Park Service, Performing
Culture in Music & Dance, National Park
Service, U .S . Dept . of the Interior
(as of March 20, 2022); Hines, Black
Musical Traditions and Copyright Law:

Historical Tensions (2005) 10 Mich . J Race
& L . 463, 472; Sambol-Tosco, supra .
18 Stuckey, Slave Culture: Nationalist
Theory and the Foundations
of Black America (1987), p . 137;
Sambol-Tosco, supra, at p . 2 .
19 Cox, The Superpower of Singing: Music
and the Struggle Against Slavery
(Dec . 8, 2021), National Park
Service (as of March 20, 2022) .
20 Hines, supra, at p . 474 .
21 Sambol-Tosco, supra, at p . 1; Stuckey,
supra, at pp . 20-26 .
22 Absher, The Black Musician and the
White City: Race and Music in Chicago,
1900-1967 (2014), pp . 1-2, 157 .
23 Absher, supra, at pp . 9, 13-14, 56 .
24 Absher, The Black Musician and the
White City: Race and Music inn
Chicago, 1900-1967, 44 (2014) .

Absher, supra, at pp . 1, 21-22
25 Absher, supra at pp, 23-25; Knopper,
The Rope: The Forgotten History of Segregated
Rock & Roll Concerts (Feb . 22, 2021),
Rolling Stone (as of March 20, 2022) .
26 Knopper, supra; Lipsitz, Midnight at
the Barrelhouse: The Johnny
Otis Story (2010) pp . 46-48 .
27 Knopper, supra; Absher, supra at pp,
23-25; Hickey, Segregated Rock
and Roll Concert Posters from the
1950s (2011-2012), Missouri State
University (as of March 20, 2022) .
28 Knopper, supra.
29 Knopper, supra; Lipsitz, supra, at pp .
46-48 .
30 Knopper, supra; Lipsitz, supra, at pp .
46-47 .
31 Knopper, supra; Lipsitz, supra, at p . 47 .
32 Knopper, supra; Megan Mayhew
Bergman, The International Sweethearts
of Rhythm (Nov . 20, 2011), 75
Oxford American (as of March 20,
2022); Handy, The International
Sweethearts of Rhythm: The
Ladies’ Jazz Band from Piney Woods
Country Life School (1998) p . 26 .
33 Gates, Jr ., The Black Church: This Is
Our Story, This Is Our
Song (2021) pp . 2-5 .
34 Gates Jr ., supra, at p . 6 .
35 Gates Jr ., supra, at pp . 120-125 .
36 Ibid .
37 Gates Jr ., supra, at p . 135 .
38 See generally Hines, supra .
39 Hines, supra, at pp . 492-493 .
40 Hines, supra, at p . 485 .
41 Hines, supra, at p . 485 .
42 Hines, supra, at p . 485 .
43 Hines, supra, at p . 479-80 .
44 Ibid .
45 Hines, supra, at pp . 485-486 .
46 Ibid .
47 Ibid .
48 Myers, Soldiers Cheer Army's Decision to
Authorize Dreadlocks in Uniform (Jan .
30, 2017), Army Times (as of March
20, 2022); Schwartzmann, Shreveport
Repeals its Discriminatory “Saggy Pants” Ban
(2019), ACLU (as of March 20, 2022) .
49 Myers, supra .
50 Ibid .
51 Luscombe, Florida City Ends Anti-Sagging
Saga with Move to Allow Low Trousers
(Sep . 14, 2020), The Guardian (as of
March 20, 2022); Sinopole, "No Saggy
Pants": A Review of the First Amendment
Issues Presented by the State's Regulation
of Fashion in Public Streets (2008) 113
Dickinson L .Rev . 329, 331-334 .

317
Chapter 9 Control Over Creative, Cultural, & Intellectual Life 52 Mellor, Balenciaga’s $1,200 sagging pants
are being decried as racist (Sept . 7, 2021),
Fortune (as of April 7, 2022); Henning,
The Rage of Innocence: How America
Criminalizes Black Youth (2021) pp .
50-55; Schwartzmann, supra .
53 MacNeil, Black men make up 96 percent of
sagging arrests in Shreveport (June 2,
2019) Shreveport Times (as of April
7, 2022); Schwartzmann, supra .
54 Hening, supra, at p . 62 .
55Weatherford, The CROWN Act (Oct . 9,
2020), Harpers Bazaar (as
of March 20, 2022) .
56 Weatherford, supra; H .R . No . 2116, 117th
Cong ., 2d Sess . (2021) .
57 Ibid .
58 Mercer, Banning Hair Discrimination
Emerges as Racial Justice Issue (Nov .
29, 2021), Pew Charitable Trusts
(as of March 20, 2022) .
59 Mann, From Slavery to the White House:

The Extraordinary Life of Elizabeth
Keckly (Sept . 14, 2020), The White
House Historical Association
(as of March 20, 2022) .
60 Ibid .
61 Ibid .
62 Mann, supra.
63 Ibid .
64 Thurman, Ann Lowe’s Barrier-Breaking
Mid-Century Couture (March 22, 2021),
The New Yorker (as of March 20, 2022) .
65 Ibid .
66 Ibid .
67 Ibid .
68 Dennis, The Music of Mass Incarceration
(Dec . 1, 2020), American Bar Association
(as of April 7, 2022); Hodgins, Rap Lyrics
and Evidence of Guilt: The Racial Impact Of
The Weaponization Of Evidence Rules (2021)
Cardozo Journal of Equal Rights & Social
Justice Blog (as of March 20, 2022) .
69 Nielson, “Can’t C Me”: Surveillance and
Rap Music (2010), 40(6) Journal
of Black Studies, 1254, 1258
70 Hudson Jr ., Rap Music and the First
Amendment (2009), First Amendment
Encyclopedia (as of March 20, 202
71 Dennis, supra .
72 Hudson Jr ., supra.
73 Bell v . Itawamba County School Bd .
(5th Cir . 2015) 799 F .3d 379 .
74 Hudson Jr ., supra .
75 Hudson Jr ., supra .
76 Steve Hochman, Compton Rappers
Versus the Letter of the Law: FBI Claims
Song by N.W.A. Advocates Violence on
Police, L .A . Times (Oct . 5, 1989) (April
7, 2022); Letter from Milt Ahlerich,
Ass’t Dir ., Off . Pub . Aff ., FBI, to Gui
Manganiello, Nat’l Promotions Dir .,
Priority Records (Aug . 1, 1989) .
77 Holmes & Subsaeng, When N.W.A.

Terrified White America (2017) Daily
Beast (as of Aug . 9, 2021) . Jones,
Ban(ned) in the USA: Popular Music and
Censorship (1991), 15(1) Journal of
Communication Inquiry, p . 73, 73-87 .
78 John Counts, Retired Detroit Sergeant
Recalls Telling N.W.A. They Couldn’t
Play ‘F*** Tha Police’ at 1989 Concert
(2015) MLive (as of April 7, 2022) .
79 Pepin, Music of the Fillmore (2000), PBS
(as of March 20, 2022) .
80 Bellegarde Francois, A Lost World: Sallie
Robinson, the Civil Rights Cases, and Missing
Narratives of Slavery in the Supreme Court’s
Reconstruction Jurisprudence (2021), 109
Georgetown Law Journal 1015, 1049-50 .
81 Ibid .
82 Ibid .
83 Scott, Cinema Civil Rights: Regulation,
Repression, And Race In The Classical
Hollywood Era (2015) pp . 147-149 .
84Carol Chamberland, Racism in the
Clubs, Found SF (as of March 20, 2022) .
85 Ibid .
86 Ibid .
87 Ibid .
88 Abramovitch, Oscar’s First Black Winner
Accepted Her Honor in a Segregated
‘No Blacks’ Hotel in L.A. (Feb . 19,
2015), Hollywood Reporter
(as of March 20, 2022)
89 Erigha, Racial Valuation: Cultural
Gatekeepers, Race, Risk, and Institutional
Expectations of Success and Failure (2021),
68(2) Social Problems, 393–408 .
90 Dunn et al ., Black Representation in Film
and TV: The Challenges and Impact
of Increasing Diversity (March 11,
2021), McKinsey & Company
(as of March 20, 2022) .
91 Ibid .
92 Jackson & Jones, Remember the Fillmore:

The Lingering History of Urban Renewal
in Black San Francisco (2012), UCSB
Center for Black Studies Research,
p . 61 (as of April 7, 2022) .
93 Jackson & Jones, supra, at p . 65 .
94 Jackson & Jones, supra, at pp . 63-65 .
95 Alvarez, The Power of the Zoot: Youth
Culture and Resistance during
World War II (2009) p . 64 .
96 Alvarez, supra, at p . 27 .
97 Alvarez, supra, at p . 79 .
98 Alvarez, supra, at pp . 43, 65
99 Alvarez, supra, at pp . 156, 165 .
100 Alvarez, supra, at pp . 160-170
101 Ibid .
102 Alvarez, supra, at pp . 176-79 .
103 Alvarez, supra, at p . 180 .
104 Ibid .
105 Alvarez, supra, at p . 71 .
106 Alvarez, supra, at pp . 71-72 .
107 Alvarez, supra, at p . 72 .
108 Paggett, Cultural Incompetence: My Son
was Kicked out of Class Because of His Hair
(March 8, 2018), ACLU of Northern
California (as of March 21, 2022) .
109 Ibid .
110 Ibid .
111 Abre’ Connor, #LongHairDontCare...

Unless You Live in Clovis (Sept . 3,
2015), ACLU of Northern California
(as of March 21, 2022) .
112 Ibid .

318
Chapter 9 Control Over Creative, Cultural, & Intellectual Life 113 Miranda, How One Art Museum Has
Reckoned with Race and Its Past
(Oct . 22, 2020), Los Angeles
Times (as of March 20, 2022) .
114 Ibid .
115 Pogash, Its Top Curator Gone, SFMOMA
Reviews Its Record on Race (July 22, 2020),
N ew York Times (as of March 21, 2022) .
116 Ibid .
117 Ibid .
118 Levin, Revealed: How LAPD Targeted
Nipsey Hussle’s Street Corner and Store (Nov .
7, 2021), Guardian (as of March 21, 2022) .
119 People v . Olguin (1994)
31 Cal .App, .4th 1355 .
120 NMAAHC, supra .
121 Ibid .
122 Ibid .
123 Ibid .
124 Ibid .
125 Ibid .
126 Ibid .; Ferris State University, The
Origins of Jim Crow, Jim Crow
Museum (as of March 21, 2022) .
127 NMAAHC, supra .
128 Ibid .
129 Butcher, “Successful Beyond
Expectation:” Blackface, Minstrelsy, and
Racist Entertainment at the University of
Wisconsin–Madison (Oct . 26, 2020), Public
History Project, University of Wisconsin-
Madison (as of March 21, 2022) .
130 Ibid .
131 Ibid .
132 Barnes, supra.
133 Blakemore, “Birth of a Nation”: 100 Years
Later (Feb . 4, 2015), JSTOR Daily
(as of March 21, 2022) .
134 Thomas Doherty, ‘The Birth of a Nation’
at 100: “Important, Innovative and
Despicable” (Feb . 7, 2015), Hollywood
Reporter (as of March 21, 2022) .
135 Blakemore, supra .
136 Ibid .
137 Winn, A Brief History of the USDA Motion
Picture Service to 1943 (2013), Kinema:

A Journal for Film and Audiovisual
Media (as of March 21, 2022) .
138 J . Emmett Winn, Documenting
Racism: African Americans in
US Department of Agriculture
Documentaries, 1941-42
(2014), at pp . 107-130 .
139 Ibid .
140 See Koppes & Black, Blacks, Loyalty, and
Motion-Picture Propaganda in World
War II (1986), The Journal of
American History, 383-406 .
141 Koppes, supra .
142 Koppes, supra .
143 Knppes, supra .
144 Cox, Dixies Daughters: The United
Daughters of the Confederacy and
the Preservation of Confederate
Culture (2003), pp . 1-3 .
145 Cox, supra, at pp . 1-3 .
146 Cox, supra, at p . 96 .
147 Cox, supra, at pp . 1-3; Murali, Shaping
History: Monument-Toppling, Racial Justice
and the Law (Dec . 2, 2019), Center
for Art Law (as of March 21, 2022) .
148 Cox, supra, at pp . 1-3 .
149 Murali, supra .
150 Ryan Best, Confederate Statues Were
Never Really About Preserving History
(July 8, 2020), FiveThirtyEight
(as of March 21, 2022) .
151 Ibid .
152 Murali, supra .
153 Murali, supra .
154 Murali, supra .
155 Prattis, Racial Segregation and Negro
Journalism (1947), 8(4) Phylon, 305-314 .
156 Staples, How the White Press Wrote Off
Black America (July 10, 2021), The New
York Times (as of March 21, 2022) .
157 Teresa, The Jim Crow-Era Black Press: Of
and for its Readership, Organization
of American Historians (as
of March 21, 2022) .
158 Ibid .
159 Ibid .
160 Ibid .
161 Staples, supra .
162 Ibid .
163 Ibid .
164 Ibid .
165 Ibid .
166 Staples, The Radical Blackness of
Ebony Magazine (Aug . 11, 2019), N .Y .

Times (as of March 21, 2022) .
167 Ibid .
168 Ibid .
169 Ibid .
170 Ibid .
171 NPR, Black Entertainment Television:

Robert Johnson (Dec . 14, 2017),
NPR (as of March 21, 2022) .
172 Ibid .
173 Chen, Black Television Through the Years
(2022), University of Texas at
Austin (as of March 21, 2022) .
174 Ibid .
175 Ibid .
176 California Task Force to Study and
Develop Reparation Proposals for
African Americans (December
8, 2021), Testimony of Dr. Darnell
Hunt (as of February 8, 2022) .
177 California Task Force to Study and
Develop Reparation Proposals for
African Americans (December 8,
2021), Testimony of Erika Alexander
(as of February 8, 2022) .
178 Chen, supra .
179 Giorgis, Not Enough has Changed Since
Sanford and Son (Sept . 13, 2021),
Atlantic (as of March 21, 2022) .
180 Ibid .
181 Ibid .
182 Ibid .
183 Ibid .
184 Karr, FCC Media-Ownership Report
Underscores the Agency’s Historical
Exclusion of Black People (Sept . 7,
2021) (as of March 21, 2022)
185 California Task Force to Study and
Develop Reparation Proposals for
African Americans (December

319
Chapter 9 Control Over Creative, Cultural, & Intellectual Life 8, 2021), Testimony of Dr. Darnell
Hunt (as of February 8, 2022) .
186 California Task Force to Study and
Develop Reparation Proposals for
African Americans (December
8, 2021), Testimony of Dr. Darnell
Hunt (as of February 8, 2022) .
187 California Task Force to Study and
Develop Reparation Proposals for
African Americans (December
8, 2021), Testimony of Dr. Darnell
Hunt (as of February 8, 2022) .
188 Millar, Racism is in the Air: The FCC’s
Mandate to Protect Minorities from
Getting Shortchanged by Advertisers
(2000), Commlaw Conspecturs,
p . 311 (as of March 21, 2022)
189 Ibid .
190 Young & Raphelson, Diversifying The
Radio Dial: Black Station Owners
Demand Action (July 22, 2020)
WBUR (as of March 21, 2022) .
191 Ibid .
192 Ibid .
193 Ibid .
194 Ibid .
195 Ibid .
196 Clay Jr ., The FCC Must Act to Promote
Minority-Owned Broadcasting (Sept .
29, 2021) (as of March 21, 2022) .
197 Ibid .
198 Ibid .
199 Amnesty International, Troll Patrol
Findings: Using Crowdsourcing, Data Science
& Machine Learning to Measure Violence and
Abuse against Women on Twitter, Amnesty
International (as of March 21, 2022) .
200 Whaley, We Aren’t Alone On TikTok, Black
Girls Find Visibility—And Racist Hate,
Bitch Media (as of March 21, 2022) .
201 Guynn, Facebook While Black: Users Call
it Getting ‘Zucked’ Say Talking about
Racism is Censored as Hate Speech (July
9, 2020) (as of March 21, 2022) .
202 Hudson, West of Jim Crow: The Fight
Against California’s Color
Line (2020) at p . 50 .
203 Hudson, Entertaining Citizenship:

Masculinity and Minstrelsy in
Post—Emancipation San Francisco
(2008), 93 Journal of African
American History 174, 181 .
204Desmarais, Historic Wrongs on a
Pedestal: Ugly Past Doesn’t Vanish
When the Artwork Does (Feb . 27,
2018) (as of March 21, 2022) .
205 Ibid
206 Ibid .
207 Ohara, Inside California’s Surprising
History of Confederate Monuments (July 17,
2020), Cal Matters (as of April 7, 2022) .
208 Castillo, What’s Left of Confederate
Monuments in California (July 13, 2020),
Cal Matters (as of March 21, 2022) .
209 Castillo, supra .
210 Castillo, supra .
211 Branson-Potts, California Confronts its
Racist Past as Tributes to Confederates and
Colonizers Fall (June 26, 2020), L .A . Times
(as of March 21, 2022); Branson-Potts,
California City Named for a Confederate
General Will Not Put Name Change on
November Ballot (June 23, 2020), L .A .

Times (as of March 21, 2022) .
212 Redd, More than Music: How KDEE 97.5
FM Radio Serves Black Communities (Feb .
17, 2022), ABC 10 (as of March 21, 2022) .
213 Ford, What the ‘Hollywood Jim Crow’
Looks Like Today (Feb . 24, 2019),
Atlantic (as of March 21, 2022) .
214 Ibid .
215 Times Editorial Board, Editorial: An
Examination of The Times’ Failures on Race,
Our Apology and a Path Forward (Sept . 27,
2020), L .A . Times (as of March 21, 2022) .
216 Ibid .
217 Ibid .
218 Ibid .
219 Drapkin, “Advocate Our Own Cause”:

Black Newspapers in California
(2016), Colored Conventions
Project (as of March 21, 2022) .
220 Public Broadcasting Service,
Newspapers: The California Eagle, Publisher
– Charlotta Bass, Public Broadcasting
Service (as of March 21, 2022) .
221 Ibid .
222 Ibid .
223 Ibid .
224 Office of Assemblymember Jessie
Gabriel, District 45, California Legislators
Introduce Bipartisan Effort to Hold Social
Media Companies Accountable for Online
Hate and Disinformation (March 29,
2021), Assemblymember Jessie Gabriel,
District 45 (as of March 21, 2022) .
225 Jabali, I’ve Been on Parler. It’s a Cesspit of
Thinly Veiled Racism and Hate (Jan . 12,
2021), Guardian (as of March 21, 2022);
Syed, California Social Media Regulations
– A Tougher Sell in 2021 (May 27, 2021),
Cal Matters (as of March 21, 2022) .
226 Scott, supra, at p . 10 .
227 Scott, supra, at pp . 1-2 .
228 Scott, supra, at pp . 68 .
229 Scott, supra, at pp . 68-70; 187 .
230 Scott, supra, at pp . 1-4 .
231 Scott, supra, at pp . 108-109 .
232 Ibid .
233 American Library Association, Banned
& Challenged Classics, American Library
Association (as of March 21, 2022) (ALA) .
234 Ibid .
235 Powell, In Texas, a Battle Over What Can
Be Taught, and What Books Can Be
Read (Dec . 10, 2021), The New York
Times (as of March 21, 2022) .
236 Paz & Cramer, How Students Fought a
Book Ban and Won, for Now (Oct .
2, 2021), The New York Times
(as of March 21, 2022) .
237 Ibid .
238 Equal Justice Initiative, Banning Books
in Prisons (Jan . 7, 2020), Equal
Justice Initiative (as of March
21, 2022) (EJI 2020) .
239 Ibid .
240 Ibid .
241 Scott, supra, at pp . 147-149 .
242 Scott, supra, at p . 152-155 .

320
Chapter 9 Control Over Creative, Cultural, & Intellectual Life 243 Ibid .
244 Ibid .
245 ALA, supra .
246 Ibid .
247 EJI 2020, supra .
248 Greene, Copyright, Culture & Black
Music: A Legacy of Unequal Protection
(1999), 21 Hasting Comm Ent
Law Journal 339, 357-58 .
249 Greene, supra, at pp . 353-54 .
250 Ibid
251 Schuessler, Your Ancestors Were Slaves.

Who Owns the Photos of Them? (March
22, 2019), N .Y . Times (as of March
21, 2022); Perez-Pena, Settlement Over
Artwork By an Ex-Slave (Oct . 7, 1993),
N .Y . Times (as of March 21, 2022) .
252 Rothwell, supra .
253 Cook, Violence and Economic Activity:

Evidence from African American Patents,
1870-1940 (2014), 19(2) Journal
of Economic Growth 221 .
254 Johnson, The Colorblind Patent System
and Black Inventors (2019), American Bar
Association (as of March 21, 2022) .
255 Ibid .
256 Ibid .
257 Ibid .
258 Ibid .
259 Rothwell, supra .
260 Rothwell, supra .
261 Rothwell, supra .
262 Rothwell, supra .
263 Rothwell, supra .
264 Johnson, supra .
265 Johnson, supra .
266 Johnson, supra .
267 Johnson, supra .
268 Johnson, supra .
269 California Task Force to Study and
Develop Reparation Proposals for
African Americans (December 8,
2021), Testimony of Professor Kevin J.

Greene, (as of February 8, 2022) .
270 Ibid .
271 Ibid .
272 Reese, The Socio-Political Context of the
Integration of Sport in America (1998), 3(4)
Journal of African American Men 5, 6-8 .
273 Reese, supra, at p . 12 .
274 Tynes, The Golden Age of Black College
Football Lost to Integration (Sep . 19,
2010), Ringer (as of March 21, 2022) .
275 Ibid .
276 Ibid .
277 Reese, supra, at pp . 12-14 .
278 UCLA, Black Bruin History at UCLA,
UCLA (as of March 21, 2022) .
279 Miller, Slouching Toward a New
Expediency: College Football and the
Color Line During the Depression Decade
(1999), 40(3) American Studies, 5, 9 .
280 Reese, supra, at p . 14 .
281 Brown, ‘Shoot Them for What?’ How
Muhammad Ali Won His Greatest
Fight (June 16, 2018), Washington
Post (as of March 21, 2022) .
282 Ibid .
283 Ibid .
284 Ibid .
285 Ibid .
286 Ibid .
287 Ibid .
288 Reese, supra, at pp . 16-17 .
289 Stewart, The Price of Olympic Glory (July
22, 2021), Vox (as of March 22, 2021) .
290 United States General Accounting
Office, Olympic Games: Federal Government
Provides Significant Funding and Support
(2000), United States General
Accounting Office (as of March 21, 2022) .
291 Reese, supra, at p . 16 .
292 UCLA, Tommie Smith and John Carlos,
UCLA (as of March 21, 2022) .
293 Ibid .
294 Ibid .
295 Germain, Simone Biles, Sha’Carri
Richardson, and How the Olympics
Failed Black Women (Aug . 13, 2021),
ACLU (as of March 21, 2022) .
296 Stewart, supra; Berlin, The Olympic
Color Barrier (Aug . 21, 201), Politico
(as of March 21, 2022) .
297 Ingraham, NCAA Rules Allow White
Students and Coaches to Profit Off Labor
of Black Ones, Study Finds (Sept . 7,
2020), Washington Post (as of March
21, 2022); Drexel News, Study College
Athletes Worth Six Figures Live Below
Federal Poverty Line (Sep . 13, 2011),
Drexel News (as of March 21, 2022) .
298 Ingraham, supra .
299 Ibid .
300 Ibid .
301 Ibid
302 Ibid .
303 Negro Leagues Baseball Museum,
Negro Leagues History, Negro Leagues
Baseball Museum (as of March 21, 2022) .
304 Ibid .
305 Ibid .
306 Ibid .
307 Library of Congress, Breaking the Color
Line: 1940 to 1946, Library of
Congress (as of March 21, 2022) .
308 Associated Press, The NFL Will Stop
Assuming Racial Differences When
Assessing Brain Injuries (June 2, 2021),
NPR (as of March 22, 2022) .
309 Ibid .
310 Cineas, “Race Norming” and the Long
Legacy of Medical Racism Explained (July
9, 2021), Vox (as of March 22, 2021) .
311 Mosley, “Is the NFL Black Head Coach In a
'No-Win' Situation?” (Feb . 1, 2022),
SI .com (as off Aprill 11, 2022)
312 Yolanda Hester, Before the Open Era:

African Americans in Tennis during the 50s
and 60s, UCLA (as of March 21, 2022) .
313 Ibid .
314 Ibid .
315 Prasad, Serena Williams and the Trope of
the ‘Angry Black Woman’ (2018), BBC
News (as of March 21, 2022) .
316 The Undefeated, Basketball’s Battle for
Racial Equality (Sep . 18, 2018),
Andscape (as of March 21, 2022) .

321
Chapter 9 Control Over Creative, Cultural, & Intellectual Life 317 Ibid .
318 Mahoney, NBA to Resume After Historic
Anti-Racism Protest Puts Post-
Season on Pause, Global News
(as of March 22, 2022) .
319 Ibid .
320 Undefeated, supra .
321 Kelley, WNBA Star Says Women’s
Basketball Isn’t Popular Because Players are
Predominantly Black, LGBTQ+ (Oct . 19,
2020), The Hill (as of March 21, 2022) .
322 History, Trailblazing Black Women in
Sports (Feb . 4, 2010), History
(as of March 21, 2022) .
323 Ibid .
324 Women’s Sports Foundation, Title IX,
Women’s Sports Foundation
(as of April 7, 2022) .
325 Hutchins, et . al ., Where are all the wom-
en coaches? (Dec . 31, 2019) The New
York Times (as of April 7, 2022) .
326 Spruill, The WNBA Has No Black Women
in Head Coaching Positions and
That’s a Problem (Jan . 8, 2020), SB
Nation (as of March 21, 2022) .
327 Women’s Sports Foundation, The
Women’s Sports Foundation Report Brief: Her
Life Depends On It III & Girls and Women
of Color (Jan . 21, 2016), Women’s Sports
Foundation (as of March 22, 2022) .
328 Women’s Sports Foundation, supra .
329 Demas, Integrating the Gridiron:

Black Civil Rights and American
College Football (2011), p . 8 .
330 Demas, supra, at pp . 29-33 .
331 Demas, supra, at p . 106 .
332 Ibid .
333 White, Kap’s NFL Absence Still Notable
Despite Goodell’s Claims (Sep . 7, 2020),
NBC Sports (as of March 21, 2022) .
334 Ibid .
335 Levin, Trump Also Told Colin Kaepernick
That He Should Leave the Country (July
15, 2019), Slate as of March 21, 2022) .
336 Levin, supra .
337 Ibid .
338 Ibid .
339 Harper, Black Male Student-Athletes and
Racial Inequities in NCAA Division I College
Sports (2018), USC Race and Equity
Center (as of March 21, 2022) .
340 Ibid .
341 Ibid .
342 Ibid .
343 Ibid .
344 Ibid .
345 Ibid .
346 Austin, “Not Just for the Fun of It!”
Governmental Restraints on Black Leisure,
Social Inequality, and Privatization
of Public Space (1998), Faculty
Scholarship at Penn Law, 667-714 .
347 Ibid .
348 Ibid .
349 Ibid .
350 Austin, supra, at p . 669 .
351 Austin, supra, at p . 675 .
352 Ibid .
353 Austin, supra .
354 Jefferson, Living the California
Dream: African American Leisure Sites
During Jim Crow Era (2020) pp . 34-35 .
355 Ibid .
356 Ibid .
357 Ibid .
358 Ibid .
359 Ibid .
360 Ibid .
361 Ibid .
362 Jefferson, supra, at p . 40 .
363 Ibid .
364 Jefferson, supra,at p . 42 .
365 NPR, A Black Family Got Their Beach
Back—and Inspired Others to Fight
Against Land Theft (Oct . 10, 2021),
NPR (as of March 21, 2022) .
366 Ibid .
367 Ibid .
368 Richard Winton, Suit Accusing Coach of
Racism Stirs Bitter Memories of Pool’s
Past (April 16, 2021), Los Angeles
Times (as of March 21, 2022) .
369 Ibid .
370 Ibid .
371 Ibid .
372 Ibid .
373 Ibid .
374 Ibid .
375 Ibid .
376 UCLA Library Digital Collections,
Parkridge Country Club, Corona,
1925-1928, UCLA Library Digital
Collections (as of March 21, 2022) .
377 Ibid .

Stolen Labor and Hindered OpportunityCHAPTER 10
I . Introduction
During enslavement, American government at all levels
enabled and benefitted from the direct theft of African Americans’ labor . Since then, federal, state, and local government actions have directly segregated and dis-
criminated against African Americans and also paved
the way for private discrimination in labor and em-
ployment . Federal, state, and local laws and policies, including those of California, have expressly and in
practice limited what work African Americans can do
and suppressed African Americans’ wages and opportu-
nities for professional advancement . Federal laws have also protected white workers while denying the same
protections to Black workers, setting up and allowing
private discrimination . Government and private dis-
crimination have contributed to the inability of African Americans to build wealth over generations . Although
progress has been made, Black workers continue to face
serious discrimination today . The badges and incidents of slavery have carried forward . The devaluation of
African Americans, their abilities, and their labor did not end . It simply took on different forms .

Around the time of the Civil War, state and local gov-
ernments passed laws known as the Black Codes and
“Jim Crow” laws . While these laws touched all aspects
of life, one of their main goals was to control how African Americans earned a living in order to maintain African
Americans as a servant class for white Americans . These laws limited African Americans’ job opportunities and
salaries and their ability to provide for their families .

The federal government itself directly discriminated
against Black workers . Black workers were routinely
excluded from federal employment until 1861 and, in
1913, President Woodrow Wilson allowed for the federal
workforce be segregated . The segregated federal govern- ment demoted and relegated Black workers to lower paid
jobs, and, for instance, forced Black workers to use sep- arate toilets in the Treasury and Interior Departments .

Although the military offered an opportunity for upward mobility for African Americans, its ranks remained segre- gated until 1960, with lower pay and rank for Black service members . Even as the overall proportion of Black service members has grown, military leadership has remained
overwhelmingly white, with only two Black officials out of 41 total holding four-star rank in 2020 .

COURTESY OF E.F. JOSEPH/INTERIM ARCHIVES/GETTY IMAGES
At the Kaiser shipyards, Eastine Cowner, a former waitress, is working as a scaler to build SS George Washington Carver. Richmond, CA. (1943)

323
Chapter 10 Stolen Labor and Hindered Opportunity Although the federal government throughout history has
passed laws, implemented policies, and made progress
in protecting workers, its efforts were often limited in time and impact, and often left out Black workers due to compromises with racist southern legislators . After the Civil War, the Freedmen’s Bureau provided for the wel-
fare of previously enslaved African Americans, but it did so in a manner that reinforced racist notions, and lasted only seven years before being dismantled by Congress
under pressure from white southerners . The federal gov- ernment failed to prevent white Americans from using
violence and terror to limit African Americans’ ability to earn a living, and certified unions that excluded Black workers . Federal labor protections under the New Deal, which aimed to help American workers’ economic pros-
pects, excluded or harmed African Americans .

The Civil Rights Act of 1964 included Title VII, which
largely banned discrimination on the basis of race in
employment . However, it did not remedy the discrimi-
natory workplace structures that have accumulated for
hundreds of years . In 1977, the Supreme Court limited
these federal protections to only instances where an
employee can prove that their employer intended to
discriminate against them, an extremely high standard .

Federal government affirmative action plans created in
the 1970s did lead to an increase in the rate of minori- ty employment in businesses that contracted with the
federal government in those years, but an organized
backlash has narrowed the scope and impact of these
programs since in the early 1980s . Despite some progress in preventing labor discrimination against Black work-
ers, the federal government has made little to no effort to address the harms of past government action .

Research has produced evidence that, as a result of the legacy of enslavement and subsequent and ongoing dis-
crimination, white workers are paid more than Black
workers, and Black and white workers are concentrated
in different types of jobs . 1 As of 2019, median Black wages were equivalent to only 75 .6 percent of white wages, fall- ing from a height of 79 .2 percent in 2000 . Researchers estimate that between one-quarter to one-third of the
wage gap between Black and white workers is due to
racial discrimination . 2 Without a safety net of savings, African Americans can be more vulnerable to upheavals
in the labor market and less able to advocate for high- er wages or other benefits . As of 2020, 19 .5 percent of African Americans were living in poverty compared
to 8 .2 percent of non-Hispanic white Americans . 3 Out of the 2021 S&P 500 and Fortune 500 companies, only
six of the chief executive officers of those companies
were African Americans . 4 In 2020, African Americans held only 8 .7 percent of the board seats in Fortune
500 companies . 5
Similar patterns of government neglect and discrimi-
nation exist in California . Black workers did not hold many government jobs in the state until World War II .

When Bay Area Rapid Transit was built in 1967, no skilled Black workers were hired because the National Labor
Relations Board (NLRB)-certified unions did not admit
Black members . BART, though a government agency, re-
fused to use its power to insist on non-discrimination
policies by the unions . In 1996, California changed its constitution to ban the use of affirmative action in gov- ernment employment and education with Proposition
209 . Persistent discrimination and limited affirmative action have prevented African Americans from receiv-
ing the same wages and career opportunities as white
Americans received with government support .

75.6%
African American Wages
in 2019 were
of white American wages
Railway workers with pneumatic drill. Undated photograph.

COURTESY OF GEORGE RINHART/CORBIS VIA GETTY IMAGES

324
Chapter 10 Stolen Labor and Hindered Opportunity This chapter recounts this long history and the continu- ing impact of discrimination in labor and employment .

Section III provides a brief summary of enslavement, a
subject explored in greater detail in Chapter 2 . Section IV discusses discrimination in the laws enacted and
government programs carried out from the Civil War
forward as well as government support of private
discrimination in labor and employment . Section IV also includes discussion of the advances and limitations of
civil rights laws . Section V outlines the history of dis- crimination in government employment . The effects
still seen today from centuries of discrimination are
summarized in Section VI .

II . Enslavement
The story of African Americans in the United States
begins with stolen labor . The purpose of enslavement
was to exploit the fruits of Black labor for the bene-
fit of mostly white Americans . For a full discussion of enslavement, please see Chapter
2 . The labor of enslaved African
Americans built the infrastructure
of the nation, filled the nation’s
coffers, and produced its main ag-
ricultural products for domestic
consumption and export . 6
Federal and state law treated African
Americans themselves as commod-
ities to be sold by enslavers . 7 This
system exploited the labor and love
of Black mothers to recreate and
grow the enslaved labor force . 8
Over the 200-plus years of slavery’s existence in this
country, enslavers extracted an estimated $14 trillion of labor from the human beings they enslaved . 9 One recent study estimated that “enslaved workers were responsi-
ble for somewhere between 18 .7 and 24 .3 percent of the increase in commodity output per capita nationally be-
tween 1839 and 1859 .” 10 Through various forms of taxes and tariffs—often structured to protect the interests of en- slavers—federal, state, and local governments all reaped financial benefit from this condoned economic activity . 11 Enslavement effectively led to separate labor markets for Black and white Americans . 12 White workers had access to a larger and more desirable selection of jobs, while free Black workers were relegated to menial labor . 13 Frederick Douglass observed, “Finding my trade of no immediate
benefit, I threw off my calking habiliments, and prepared myself to do any kind of work I could get to do .” 14
Although there were fewer legal limitations on African
Americans in the North, white workers were more mo-
tivated to reduce competition from African Americans . 15 Less threatened by free Black workers in the South, white employers were more likely to employ Black workers in
skilled jobs than free Black wage earners in the North . 16 In 1860, for example, approximately 10 percent of Black men in New York City worked in a skilled trade, while in Richmond the figure was 32 percent, and in Charleston,
where one third of the population was Black, 76 of Black men worked in a skilled trade . 17 A few years earlier, in 1856, nearly 40 percent of Black artisans in Philadelphia reported that unrelenting racial prejudice had com-
pelled them to abandon their trades . 18
California
As discussed in Chapter 2, enslavement existed in
California into the mid-1860s . 19 Enslavers brought en- slaved African Americans with them when they moved
west . 20 Additionally, California passed its own fugitive slave law in 1852 and, for the three years that it was in force, it prevented courts from recognizing the free-
dom of those fleeing to California . 21 California at the time strongly discouraged free African Americans from
entering its territories . 22 The relatively few free African Americans who resided in California in the late 1700s
and the decades that followed tended to work as fur
traders, scouts, cowboys, and miners . 23
California’s lack of government oversight allowed slav- ery to take hold in certain regions, including where
enslavers brought African Americans to mine for gold . 24 Federal and state law exploited the labor and love of Black mothers to create and grow the enslaved labor force. Between 1619 and 1808, 300,000 enslaved people were trafficked to the United States. By 1860, approximately 3.9 million enslaved African Americans lived in the United States. Over the 200-plus years of slavery, enslavers extracted an estimated $14 trillion of free labor from enslaved people.

325
Chapter 10 Stolen Labor and Hindered Opportunity By 1852, 300 enslaved persons were involved in gold
mining, with other enslaved persons forced to work
in other capacities . 25 The California Fugitive Slave Act, coupled with California’s law prohibiting the taking of testimony from a Black person against a white person,
posed a threat to the lives of both free and enslaved
Black residents . 26
One enslaver from Mississippi, Charles Perkins, brought three enslaved men, Robert Perkins, Carter Perkins, and Sandy Jones to California in 1849 . 27 Perkins later left the men behind with a friend who released them in 1951 . 28 The three freed men then set up a freight hauling busi- ness that earned them over $3,000 in personal property, worth around $98,000 in 2020 dollars, but in 1852, the
California Supreme Court ordered the three back to
slavery in Mississippi . 29
III . Government Support of Private Discrimination
Following the Civil War, Congress created programs to
benefit African Americans and passed statutes to protect their rights . But fierce opposition from white govern- ment officials undermined these programs and led to
their premature end—while the Supreme Court under-
mined statutory protections, allowing state and local
legislatures to impose segregation .

Throughout American history and as discussed in the
preceding chapters, local and state governments with
the tacit approval of the federal government passed
many laws restricting Black conduct . The Black Codes
and Jim Crow laws aimed to consolidate and maintain
economic and political power generally in the hands of
white Americans by controlling the type of work avail-
able to African Americans, and how that work has been
performed . 30 This governmental discrimination against African Americans supported private employment dis-
crimination . Until the Great Migration, as discussed in Chapter 1 and 5, the majority of African Americans lived in the South, and the majority of southern Black families did not own land and were exploited by white landown-
ers in the sharecropping system . 31 Black women were
mostly relegated to domestic service jobs until well into the 20th century . 32
When the federal government aimed to improve labor
conditions in the 1930s with the New Deal, federal poli- cies and programs often failed to benefit, or even harmed African Americans, often by design . New Deal programs
purposefully linked benefits like healthcare, paid vaca- tions, pensions, tuition benefits,
social security, and unemployment
benefits to employment with large
corporations, which at the time, gen-
erally did not hire Black workers . 33
Southern members of the House and
Senate from states that passed laws
to prevent Black workers from vot-
ing were instrumental in structuring
the New Deal to exclude industries
in which most Black workers were
employed, like agriculture, domestic
services, and casual labor . 34
When the federal government tried
to remedy the racism faced by Black
workers, the actions often lacked
power to enact real change and of-
ten lasted only a short time .

Freedmen’s Bureau: Short-
Lived Paternalism
In the wake of the Civil War, the federal government
created programs to aid African Americans and statutes
to protect their rights . However, both failed to live up to their promise to give African Americans equal ac-
cess to economic and labor opportunities or remedy
the harms of slavery .

The United States government established Freedmen’s Villages to house, clothe, and educate freed enslaved people. (c. 1863-1865)

COURTESY OF CORBIS VIA GETTY IMAGES

326
Chapter 10 Stolen Labor and Hindered Opportunity Immediately before the end of the Civil War, Congress
created the Bureau of Refugees, Freedmen, and
Abandoned Lands to provide for the welfare of for-
merly enslaved African Americans, including through
“issues of provisions, clothing, and fuel, as [necessary] for the immediate and temporary shelter and supply
of destitute and suffering refugees and freedmen and
their wives and children,” according to the statute . 35 Commonly known as the Freedmen’s Bureau, the agen-
cy had the authority to supervise labor relations in the South, with the mandate to provide education, medical
care, and legal protections for formerly enslaved African Americans, along with the authority to rent out and
eventually sell allotments of abandoned or confiscated
land to free African Americans . 36
The original goal of the Freedmen’s Bureau Act was the
more radical notion of allowing African Americans the
means to become self-sufficient . 37 In the closing days of the Civil War, Union General William Tecumseh
Sherman issued Special Field Order No . 15, setting
aside 400,000 acres of confiscated land for those who
had been freed, and two months later, the Freedman
Bureau’s Act formalized the field order, “providing that each negro might have forty acres at a low price on long credit .” 38 Many free African Americans and northern
Republicans believed that land reform in the South—
granting formerly enslaved African Americans access
to their own land—was the true way that formerly en-
slaved people would be free from their enslavers . 39 The resulting independent Black farmers would provide a
power base for a new social and political order in the
postwar South . 40
This new vision of social relations in the South was
opposed by southerners as well as northerners who
opposed enslavement but whose commitment was
more to notions of free labor and capitalism than racial equality . 41 A large number of Black landowners would threaten plantations and disrupt the southern economy
and social system . 42 White capitalists in the North and South believed that Black freedom should mean Black
workers continuing to work on a plantation, although
they would now be paid . 43 They did not believe that
African Americans should be able to support themselves
independently through subsistence farming, which
would have led to less cotton being grown and posed
a threat to the interests of cotton merchants and other capitalists in the South, elsewhere in the United States, and in Europe . 44 After the assassination of Abraham
Lincoln, who had wished to give freed persons “‘an
interest in the soil,’” 45 Andrew Johnson became presi- dent and repudiated Lincoln’s promises . 46 Proclaimed Johnson, “This is a country for
white men, and by God, as long as
I am president, it shall be a govern-
ment for white men .” 47 In less than
a full harvest season, the land that
Sherman had given to freed persons
was returned to the prior owners . 48
Although the Freedmen’s Bureau
tried to assert and protect the rights
of the formerly enslaved, the Bureau under President
Johnson perpetuated racist stereotypes, paternalistic
attitudes, and continued to limit African Americans’
economic and social power . Bureau agents often viewed
formerly enslaved African Americans as children, un-
prepared for freedom, and needing to be taught the
importance of work and wages . 49 The Freedmen’s
Bureau abandoned the possibility of land reform in the
South, and focused on labor relations between Black and white southerners instead . 50
Bureau agents did protect Black workers’ rights by in-
validating enslavement-like labor contracts, and they
enforced contracts and settled wage disputes at the
end of the harvest season . 51 However, the Bureau also harmed African Americans by acting on the racist be-
lief that African Americans avoided work, and it was
the Bureau’s responsibility to reform such laziness . 52 One commander noted that emancipation only meant
“liberty to work, work or starve .” 53 General O .O . Howard, director of the Freedmen’s Bureau, stated that African
Americans must enter into labor contracts regardless
of the contract terms because any Black man “who can
work has no right to support by the government .” 54 To this end, Bureau agents withheld social services and
food in order to force African Americans into labor
contracts, 55 prosecuted Black workers who broke labor contracts, enforced vagrancy laws, and imposed oth-
er restrictions on African Americans’ mobility . 56 The Bureau allowed plantation owners to deduct unfairly
large sums for supplies and rations, until many workers would receive little wages at all . 57 The wage guidelines for Black workers provided less pay for Black women
regardless of their productive capacity . 58
Nonetheless, the Freedmen’s Bureau met severe re-
sistance from southern politicians . In 1866, President Federal Freedmen’s Bureau withheld services and food in order to force African Americans into labor contracts, prosecuted Black workers, and enforced vagrancy laws to prevent African Americans from moving.

327
Chapter 10 Stolen Labor and Hindered Opportunity Andrew Johnson vetoed the bill extending its existence
past one year, and it was only enacted once Congress
overrode the veto . 59 Six years later, in 1872, Congress bowed to pressure from white southerners and disman-
tled the Bureau . 60
Black Codes and Other Laws Controlled
Black Workers
Immediately after the Civil War, “Black Codes,” passed by state and local governments in both the North and the
South, governed the conduct of free African Americans .

Free African Americans posed a threat to the racial hier- archy of slavery, and Black Codes were a range of laws to maintain the lower status of African Americans through
restrictions on movement and activity, often in order to compel them to work in menial jobs for low pay . 61
The Thirteenth Amendment to the Constitution
outlawed the institution of slavery, but it allowed
involuntary servitude as a punishment for a crime .

Mostly southern state and local governments used
this loophole to develop a system of laws, often built
around vagrancy laws, that turned African Americans
into criminals, and then allowed the government to
turn those labeled “criminals” into de facto enslaved
persons, forced to labor without pay or freedom of
movement . 62 For an in depth discussion of convict leas- ing, please see Chapter 11 .

Vagrancy laws, passed by numerous states, criminal-
ized unemployment . 63 An 1865 Mississippi law required African Americans to enter into a labor contract with
white farmers by January 1 of every year or risk being in violation . 64 Violating such laws risked a criminal con- viction that allowed the state or locality to force the African American to work without pay . 65 Means of com- pelling the labor of African Americans persisted even
after some forced labor provisions were repealed . Other states “used open-ended fraud and false-pretenses laws
to punish [workers] who had received advances and then
breached contracts without repayment .” 66
Some jurisdictions used Black Codes to limit oppor-
tunities available to African Americans . Some laws
prohibited employers from hiring workers who were
already under contract; contract labor law gave em-
ployers nearly unlimited power over workers and often
their family members as well; and
individuals who quit jobs could be
arrested and returned to their em-
ployers . 67 South Carolina enacted
a statute in 1869 that criminalized
simple breaches of labor con-
tracts . 68 Probate courts could order
that Black children be “apprenticed”
to their former enslavers . 69 For an
in-depth discussion of apprentice-
ship, please see Chapter 8 . In South
Carolina, African Americans were
required to apply for a permit to do work that was not
agriculture . 70 These codes often reinforced enslave- ment, even after it had been outlawed .

Later, as the Great Migration began, states also enacted laws that discouraged African Americans from migrat-
ing to places elsewhere in the country that offered better work opportunities with improved conditions and higher
pay . After the Civil War, interstate labor recruiters known as emigrant agents helped Black workers leave the South towards better jobs in the North . 71 The Southern states lost large numbers of workers and even when workers did not
move, the possibility of leaving improved Black workers’ bargaining power . 72 The Southern states responded by passing laws that required emigrant agents to pay high
license taxes . 73 The Supreme Court in 1900 ruled that one such law was constitutional, and allowed Southern states to hinder the ability of poor and rural Black laborers to move towards better jobs elsewhere . 74
The Supreme Court Announces
“Separate but Equal”
In 1866, Congress overrode President Johnson’s veto to
pass the Civil Rights Act of 1866, the first federal legis- lation banning discrimination on the basis of race . 75 As discussed in other chapters, the Civil Rights Act of 1866 was aimed at ensuring that African Americans had the
same legal rights as white Americans . However, while
criminalizing violations committed under color of law,
the Act did not provide any civil remedy . 76
The Civil Rights Act of 1875 allowed individuals to pursue a monetary penalty against businesses and other pub-
lic accommodations that discriminated against African
An 1865 Mississippi law required African Americans to enter into a labor contract with white employers by January 1 of every year or risk being in violation. The punishment for violation was a criminal conviction allowing the state or locality to force the African American to work without pay.

328
Chapter 10 Stolen Labor and Hindered Opportunity Americans . 77 This protection lasted only eight years, however, before the Supreme Court in 1883 decided in
the Civil Rights Cases that the Fourteenth Amendment did not apply to private parties . 78
The decision allowed private employers and other busi-
nesses to discriminate openly against African Americans with no repercussions . 79 Together with Plessy v. Ferguson in 1896, which condoned the doctrine of “separate but
equal,” the Supreme Court’s decisions created the abil- ity for both private and public employers to entrench
an inferior labor market for Black workers, with lower
wages, fewer protections, and limited opportunities for advancement for the next 100 years .

Lack of Government Protection
from Violence
In both the North and the South, federal, state, and lo- cal governments neglected their duty to protect Black
workers from violence as a tactic to
limit their job opportunities . White
land owners, employers, vigilante
groups, and others used violence
and terror, more closely exam-
ined in Chapter 3, to deter African
Americans from earning fair wag-
es for their labor and achieving
economic success . 80 For decades
following Emancipation, lynchings
targeted African Americans who attempted to wield some
political and economic influence or even take steps as
limited as demanding pay for their work . 81 While private actors often were the perpetrators of these brutal killings, federal, state, and local governments, in failing to pros- ecute racial violence, accepted its use to limit economic and political opportunities of African Americans . 82
Legal Segregation
During the brief period of Reconstruction following the end of the Civil War until the 1870s, radical Republicans in the federal government passed laws increasing
African Americans’ economic and labor freedom . This
included rights to change employers, keep a portion of
crops grown through cooperative labor, and change lo-
cations . 83 But this progress was temporary .

After the Union army withdrew from the South, as dis-
cussed in Chapters 2, 3, and 4 on enslavement, political disenfranchisement, and racial terror, respectively,
southern states passed laws and white Americans used
racial terror and violence to prevent African Americans from voting . The southern Democrats took back control
of state and local governments across much of the South and built a power base in the federal government . 84 In the South, state and local governments passed laws that created a formal, legally enforced system of segrega-
tion . 85 The federal government supported this system with a series of Supreme Court decisions culminating
with Plessy v. Ferguson’s official acceptance of “separate but equal” Jim Crow segregation regimes in 1896 . 86
Segregation affected all aspects of African Americans’
lives, including voting, marriage, education, transpor- tation, access to public accommodations, and labor
and working conditions . 87 For example, South Carolina passed a statute that essentially required employers to create two separate work spaces, as it forbid white textile workers from working in the same room or using the
same entrances, exits, pay windows, doorways, stair-
ways, or windows at the same time as Black workers . 88 Black textile workers in South Carolina could not use the same “water bucket, pails, cups, dippers or glasses” as white workers . 89 Not only did such laws directly regulate the labor of African Americans, they also made it more
expensive to hire Black workers when such additional
facilities were required . 90 In order to be compliant with state law, an employer would need to pay twice for com- pliant facilities if they hired any Black workers . 91 Many employers simply refused to hire any Black workers . 92 As a result, most of the jobs available to African Americans were menial and service jobs . 93
To comply with Jim Crow laws, businesses would need to pay to erect segregated workspaces for Blacks, thus many employers simply refused to hire any Black workers. As a result, most of the jobs available to African Americans were menial service jobs.

African-American engineers, working in an apparently segregated office, located in Newport News, Virginia. (1936)

COURTESY OF SMITH COLLECTION/GADO VIA GETTY IMAGES

329
Chapter 10 Stolen Labor and Hindered Opportunity State and local governments’ refusal to enforce the eco- nomic and civil rights of African Americans in contract and employment disputes allowed white Americans to
exploit and discriminate against African Americans .

African Americans in the South mostly remained in
agriculture, in a sharecropping or tenant farming sys-
tem . 94 Sharecropping and tenant farming emerged
in the late 1860s and lasted into the 1940s, tying Black workers to agricultural work and rendering them un-
able to pursue other opportunity . 95 A sharecropping
or tenancy arrangement typically involved Black work-
ers and tenants paying rent to a white farmer while
living and working on the rented land . The tenant
farmers purchased supplies—including seed, fertil-
izer, and tools—on credit from plantation stores that
then attached significant markups to the supplies and
charged high interest rates, often locking the tenant
farmers into a permanent state of debt . 96 Tenants were required to pay off all debts before leaving the farm, and landlords enforced these requirements with threats of
violence . 97 For decades, federal authorities did little to limit peonage, even after the Supreme Court declared
the practice unconstitutional . 98
Although the sharecropping system also exploited poor
white farmers, an added layer of racial terror plagued
Black sharecroppers, with no hope of government or
legal protection . In the South, a African American chal- lenged a white American at the risk of severe violence, or death . 99 For example, in 1948, two white Americans beat a Black tenant farmer in Louise, Mississippi, be-
cause the Black farmer had asked for a receipt after
paying for his water bill . 100 If a Black farmer tried to sell extra agricultural product without the landlord’s
permission, he could be whipped or killed . 101 “They
could never leave as long as they owed the master, That made the planter as much master as any master during
slavery, because the sharecropper was bound to him,
belonged to him, almost like a slave,” the grandson
of a sharecropper told Isabel Wilkerson, the Pulitzer
Prize-winning journalist and author
of both The Warmth of Other Suns:

The Epic Story of America's Great
Migration and Caste: The Origins of
Our Discontents . 102
“One reason for preferring Negro
to white labor on plantations is the
inability of the Negro to make or en-
force demands for a just statement
or any statement at all . He may hope
for protection, justice, honesty from
his landlord, but he cannot demand
them . There is no force to back up a
demand, neither the law, the vote nor public opinion…
Even the most fair and most just of the Whites are prone to accept the dishonest landlord as part of the system,” wrote anthropologist Hortense Powdermaker . 103
Elsewhere in the country, the Great Migration, as dis-
cussed in detail in Chapter 1 and 5, brought African
Americans from the South to the North, Midwest, and
West . “Blacks, though native born, were arriving as the poorest people from the poorest section of the country
with the least access to the worst education[,]” wrote
Wilkerson . 104 Largely excluded even from the bet-
ter paying jobs in even the menial occupations, Black
workers in the North and West earned the least money
when compared with white recent immigrants at the
time . 105 In 1950, African Americans in these regions had an annual income of $1,628 . 106 Italian immigrants made $2,295, Czechs made $2,339, Poles made $2,419, and
Russians made $2,717 . 107

ANNUAL INCOME DURING GREAT MIGRATION
White immigrant workers verses Black workers
$1,628
$2,295
$2,339
$2,419
$2,717RUSSIAN
POLE
CZECH

ITALIAN
BLACK
Photograph shows Sam Williams (center, holding dog), his wife Diccie Williams (center in white), their youngest son Sidney Williams (in front of Sam), and other men, women, and children in a cotton field. (c. 1908)

COURTESY OF LIBRARY OF CONGRESS

330
Chapter 10 Stolen Labor and Hindered Opportunity Until well into the 20th century, Black women could
mostly only find work as domestic servants for white
employers . 108 Following the Civil War, new career oppor- tunities opened up for women in the fields of teaching and nursing . 109 Black women who entered these professions could only work in segregated facilities . 110 A few decades later, private employers hired mostly white women as re- ceptionists, department store clerks, and telephone and machine operators . 111 Black women took over household work as white women, including white immigrant women,
moved into these better paying jobs with set work hours . 112 In both the North and the South, Black female labor
participation rates were double those of American-born
white women and triple those of immigrant women .

During the first half of the 20th century, the number of white female domestic workers fell from 1 .3 million to 542,000, while Black women went from accounting for
30 percent of household workers around 1900 to about
60 percent of household workers at the end of World
War II . 113 Some Black women working as servants lived in their employer’s homes and were on call 24 hours a
day . 114 Other Black women resorted to what was colloqui- ally referred to as “slave markets,” where they gathered on street corners early in the morning to wait for white housewives to bid on them for as little as fifteen cents an hour . 115 One woman at a Chicago “slave market” report- ed that she made 50 cents a day—the same money as she
would earned for picking cotton in the field . 116
In each of these eras, and through to the present, civil courts did not protect African Americans to the same
degree as white Americans . However, there were ex-
ceptions . One scholar has found evidence that African
Americans used civil courts in one district in Mississippi before the Civil War to vindicate their rights in claims over contracts and wages, and found that in many in-
stances these litigants won their cases . 117
But discrimination remained built into the law . Several states, including California, prohibited Black persons
from testifying against those who were white . 118 African Americans additionally faced de jure and then de facto
exclusion from juries . 119 Some states explicitly banned African Americans from jury service, while others tied
jury service to voting, which was then limited to white men . 120 Exclusion continued by other means after the Supreme Court in 1879 ruled that a West Virginia statute limiting jury service to white men violated the Fourteenth Amendment . 121 Other forms of discrimination, including segregation, also limited access to justice . 122
Over time, in addition to the racial terror discussed
in Chapter 3 and the political disenfranchisement
discussed in Chapter 4, the civil court system also con- tributed to a failure to protect African Americans against the theft or government taking of property, which of-
ten has been a source of income and sustenance . For
example, in 1856, an enslaver, Thomas Howlett, direct-
ed that his plantation be sold and the proceeds given
to his enslaved African American
workers, who were to be freed
upon his death . 123 Two courts
upheld Howlett’s will over the chal-
lenges of Howlett’s white relatives,
but the formerly enslaved workers
never received the proceeds from
the plantation sale . 124
In another example, in 1964,
Alabama sued two cousins, Lemon
Williams and Lawrence Hudson,
claiming that the 40-acre farm that
the family had owned and operated since 1874 belonged
to the state . 125 A state court judge ordered Lemon Williams and Lawrence Hudson off the land, though, in the same
courthouse, investigating journalists found tax and prop- erty records showing that the family owned the farm . 126 Barriers to justice, including those outlined above and in Chapter 11, continue for African Americans today . While the relationship between race and the civil justice sys- tem is under-researched, studies thus far indicate that African Americans under-utilize the civil justice system, including in the area of labor and employment . In a 2016 study conducted by legal scholar and professor Sara
Sternberg Greene of low-income minority group atti-
tudes toward the civil justice system, African American respondents were less likely than white American re-
spondents to have considered seeking help for their civil legal issues, largely because of distrust in the legal sys- tem . 127 This lack of trust often stems from prior negative experiences . 128 Black people are more likely than white people to experience biased treatment in the judicial
system, and individuals who experience discrimination
are more likely to anticipate and perceive discrimination across institutional contexts . 129 There is also evidence During the first half of the 20th century, the number of white female domestic workers fell from 1.3 million to 542,000, while Black women went from accounting for 30 percent of household workers around 1900 to about 60 percent of household workers at the end of World War II. Some Black women working as servants lived in their employer’s homes and were on call 24 hours a day.

331
Chapter 10 Stolen Labor and Hindered Opportunity that African Americans are reluctant to complain when
they perceive discrimination or experience other griev- ances . 130 Additionally, social science research shows that litigants may find their attorneys through their pro-
fessional networks, and African Americans have more
limited professional networks . 131
Underutilization of the civil justice system and lack of access to justice have particular impact in the area of labor and employment . African Americans hold a sig-
nificant share of low-wage jobs, in sectors in which
wage theft is prevalent, and yet the available evidence indicates that African Americans rarely bring wage theft claims . 132 African Americans are more likely than white Americans to file a discrimination lawsuit without a law- yer . 133 A 2010 study found that African Americans are half as likely as white Americans to have a lawyer . 134 In gener- al, less than five percent of worker discrimination claims go to trial and result in a ruling for the plaintiff, 135 and self-represented litigants are significantly less likely to achieve a favorable outcome in a discrimination suit . 136 Exclusion from Unions
Legal segregation laws not only confined Black work-
ers in the South, but also impacted the economy of the
entire country . 137 Segregation pitted workers of differ- ent races against one another, resulting in continued
suppression of opportunity for Black workers and less
collective power for workers of all races . 138 Unions have a lengthy history in the United States as craftsmen have long joined together to solve problems related to their craft . 139 In the 18th century, strikes, labor organizing, and collective bargaining developed at the same time,
and the first authenticated strike was called in 1786 by Philadelphia printers . 140 Unions reached their peak
around World War II, as unions grew at the rate of ap-
proximately one million workers per year . 141
Prior to World War II, many unions refused to accept
Black people as members . 142 Since before the Civil War, white workers have claimed that Black workers were not
suited to skilled labor in order to avoid competition for jobs . 143 In the North, companies and unions did not hire Black workers because white workers refused to work
beside them, and for the sake of morale, the companies
and unions would not force the issue . 144 White workers sometimes walked off the job to force their employers
to rid their workplace of Black employees . 145
Throughout the nineteenth century trade unions or-
ganized by white workers typically excluded Black
workers; in 1902, Black workers scarcely made up three
percent of members in unions . 146 In response to ex-
clusion, Black workers sometimes formed their own
unions . 147 For example, in 1869, Black delegates attend- ed the Colored National Labor Union convention in
Washington, D .C ., which was a counterpart to the white National Labor Union . 148
Government action sometimes supported labor unions’
discrimination against Black workers . 149 For example, when the city of St . Louis built a segregated hospital for Black patients, white union members protested the hir-
ing of a single Black tile setter . 150 The
city fired the contractor and com-
mitted not to hire any contractor
that employed Black workers . 151
Legal segregation both reflected and
intensified racial tension between
workers . Segregation made contact
between Black and white workers
almost impossible, ensuring that
Black and white workers would in-
habit different worlds and making
labor organizing across racial lines
more dangerous and less likely
to occur . 152 Legal segregation not
only held down the wages of Black
working-class Americans, it also
prevented working class white workers from demand-
ing higher pay, as long as Black workers could always be forced to work for less . 153
The American Federation of Labor, founded in 1886 and
survived today by the AFL-CIO, initially strived for racial equality 154 as leaders recognized the value of a united working class 155 However, legal segregation in the South Prior to World War II, many unions refused to accept Black people as members. Since before the Civil War, white workers have claimed that Black workers were not suited to skilled labor in order to avoid competition for jobs. In the North, companies and unions did not hire Black workers because white workers refused to work beside them, and for the sake of morale, the companies and unions would not force the issue. White workers sometimes walked off the job to force their employers to rid their workplace of Black employees.

332
Chapter 10 Stolen Labor and Hindered Opportunity proved to be too influential and federation leadership
allowed local affiliates to exclude Black workers . 156 Black workers protested exclusion throughout the 1920s 157 and 1930s . 158 Federation’s leaders’ formal response was that the Federation did not discriminate, “human na-
ture cannot be altered,” and Black individuals ought to be grateful for what the Federation had done for them . 159 Scholars have argued that legal segregation discour-
aged white and Black workers from working together
for better working conditions and fostered a racial di- vision that served the interests of southern planters and industrialists . 160 For example, beginning in the 1880s, Black and white tenant farmers and sharecroppers
began to join biracial political parties to challenge the political and business elite of the South . 161 Scholars such as Jacqueline Jones, who testified before the Task Force, have argued that legal segregation and private racial
discrimination were used to disrupt this burgeoning
biracial political force . 162
For example, before the Civil War, Black women, men,
and children worked in the South . After the war, south- ern textile-mill owners reserved those jobs for white
families, and advertised hazardous mill work as a wel-
come escape from sharecropping . 163 This drove a wedge between the Black and white rural poor . 164
Exclusion from Occupational Licenses
Unions also played a part in how states excluded Black
workers from skilled, higher paying jobs through what
eventually became state licensure laws . A license from a state entity is required to practice some professions and trades, like electricians and doctors . 165 State, and some- times local, governments, have designed these licensing requirements so that Black workers are less likely to
qualify, which has intensified the impact of discrimina- tion by private employers and unions . 166
State licensure systems worked in parallel to exclusion by unions and professional societies 167 in a way that has been described by scholars as “particularly effective”
in excluding Black workers from skilled, higher paid
jobs . 168 White craft unions implemented unfair tests, conducted exclusively by white examiners to exclude
qualified Black workers . 169
For example, across the country from the late 1890s
through the late 1930s, state laws allowed local mayors or city councils to appoint the members of the licensing board for plumbers . 170 This meant that the local plumb- ers’ unions could exert significant influence over who
sat on the licensing board . 171 From there, the boards erected barriers to avoid licensing Black plumbers, such as requiring a union apprenticeship—from which Black
individuals were banned—before an applicant could
even qualify to take a licensing exam . 172 Other barri- ers included a high school diploma, which was more
difficult for Black workers due to education discrimi-
nation (as discussed in Chapter 6, Separate and Unequal Education), passing a personal interview conducted by
a white person, or sometimes, even false test scores . 173 These methods, which were used by other professions
as well, 174 did not ban Black workers outright . Because these statutes were outwardly neutral, courts have re-
peatedly found that they were constitutional without
questioning the discriminatory motives and impact . 175 A few courts recognized the dangers of allowing licens- ing boards to control entry into the profession, but not enough to stem the tide . 176
Government support made the discrimination worse .

In Virginia, a white plumber explained his state’s law
requiring members of the plumber’s union be part of
the licensing board: [T]he Negro is a factor in this sec- tion, and I believe the enclosed Virginia state plumbing law will entirely eliminate him and the impostor from
following our craft .” 177 By 1924, 24 states and Puerto Rico had similar laws in place . 178
And these laws were effective . 179 In 1973, Montgomery County, Alabama had only one licensed Black plumber,
who, despite having spent four years studying the trade, was told he failed the local exam each time he took it .

He was not allowed to see his exam papers or told what
his score was . He was finally able to obtain a local license after passing the state master plumber’s exam . 180
Charlotte, North Carolina, similarly had only one Black plumber in 1968, and in Maryland in 1953, only two of
“Housekeeper Pushing Young Girl on Toy Cart on Sidewalk, Port Gibson, Mississippi.” (1940)

COURTESY OF UNIVERSAL HISTORY ARCHIVE/UNIVERSAL IMAGES GROUP VIA GETTY IMAGES

333
Chapter 10 Stolen Labor and Hindered Opportunity the 3,200 licensed plumbers were Black . 181 The impact of these exclusionary efforts is still felt today: In 2021, the Bureau of Labor Statistics estimated that 87 .2 percent of plumbers are white and only 7 .1 percent are Black . 182 The use of licensure to regulate jobs increased dra-
matically after the 1950s, when only five percent of
professions required licensure in the United States . 183 In 2018, roughly 21 .8 percent of professions required
licensure . 184 Some of the reasons for this increase in- clude trying to professionalize and legitimize certain
jobs and an overall growth of fields that have historically required licensure . 185
Regardless of the reason, one result of the growth is that discriminatory licensing standards have become more
widespread . Even if these standards did not intend to exclude Black workers, the result was exclusion . One
such method today is the bans on licensure for people
with criminal records .

As discussed in Chapter 12, Mental and Physical Harm
and Neglect, state and federal governments have crim-
inalized African Americans throughout our nation’s
history, resulting in African Americans being more
likely to have criminal records without necessarily
committing crimes at higher rates than other races or
ethnicities . 186 Race discrimination and disproportion- ality in the criminal justice system thus combine with
laws like those excluding persons with criminal justice system involvement from licensure to close off avenues
for work .

It is difficult for people with criminal records, who are disproportionately Black, to find jobs, even if their re- cords are old or have little to do with the job, or if they have demonstrated rehabilitation . 187 When a license is required those challenges can be-
come insurmountable . One 2016
study showed that there were 27,254
state occupational licensing restric-
tions against people with criminal
records nationwide, 12,669 of which
involve restrictions on licensure for
people with any type of felony con-
viction and 6,372 of which involve
restrictions for people with mis-
demeanor convictions . 188 19,786
licensure restrictions were lifetime bans and 11,338 were mandatory and allowed no discretion by the board . 189
In some instances, upon release, formerly incarcerated
persons cannot work in the very professions for which
prison job rehabilitation programs trained them . 190 For example, while many prisons provide training programs
on barbering, laws in every state prevent a formerly in- carcerated person from working as a barber . 191
Recently, efforts have begun to reform these criminal
record exclusions . 192 Several states have now passed laws to revise licensing restrictions related to peo-
ple’s criminal records . 193 But thousands of restrictions still remain . A database funded by the United States
Department of Justice shows that there are currently
12,989 consequences of having a criminal record for
various licenses nationwide . 194
Discrimination in Promotion and Pay
During World War I, Black workers began to make
headway in previously white workplaces and indus-
tries . Black men took blue collar jobs previously held by immigrants who had shifted employment to the war
effort; Black women took jobs previously held by white
women and boys . 195 Black workers might earn 300 per- cent more doing industrial labor in the North than they earned doing agricultural labor in the South . 196 As dis- cussed in Chapters 1 and 5, these job opportunities in the North and West led approximately three million African
Americans to migrate from the South between World
War I and World War II, and another five million to move between 1940 and 1980 . 197
Wherever they landed in the North, the Midwest, or the
West, African Americans found more discrimination,
which translated into racial job ceilings, pay differen- tials, and segregation by job type . 198 For example, Ford Motor Company refused to employ Black workers at a
level above general labor outside of the Detroit area, and in the Chicago stockyards Black workers were excluded
from jobs as foremen, as they were not permitted to su- pervise white workers . 199
In the urban industrial South, Black workers were cat-
egorized in lower-level jobs “helping” white workers,
who would simply supervise work while taking home
the higher wage . 200 One Black employee at the Firestone Company’s Memphis plant described how: “You’d be
classified as a ‘helper,’ but you’d be doing all the work .

For example, Ford Motor Company refused to employ Black workers at a level above general labor outside of the Detroit area, and in the Chicago stockyards Black workers were excluded from jobs as foremen, as they were not permitted to supervise white workers.

334
Chapter 10 Stolen Labor and Hindered Opportunity The white man would get the high wage …[but] he’d
just be sittin’ there watchin’ .” 201 As a result, Black work- ers were penalized both with lower wages and fewer
advancement opportunities .

Black workers were often only hired in jobs that were
far more physically dangerous . 202 For example, Ford
Motor Company’s foundry, where many Black workers
were employed, had a lack of safety equipment, poor
ventilation, and management-induced speed-ups that
lead to worker injury and death . 203 One foundry worker described others finished a shift “so matted and covered with oil and dirt that no skin showed…we could [only]
tell a friend by his voice .” 204
This pattern continued across manufacturing sectors
for decades . Black workers were limited to lower-paying categories, barred from supervisory roles, and denied
opportunities for advancement . For example, by 1970,
one-fifth of autoworkers in Detroit were Black, but Black workers remained all but completely excluded from
higher-level positions . 205
In 1968, Black autoworkers formed the Dodge
Revolutionary Union Movement to protest racism at the
plant . A writer in the organization’s newsletter laid out the stark segregation and discrimination then present
at the plant:
1 . “95% of all foremen in the plants are white;
2 . 99% of all the general foremen are white;
3 . 100% of all plant superintendents are white;
4 . 90% of all skilled tradesmen are white;
5 . 90% of all apprentices are white; (6)…systemati-
cally all of the easier jobs are held by whites;
6 . Whenever whites are on harder jobs they
have helpers;
7 . When Black workers miss a day they are re-
quired to bring 2 doctors’ excuses as to why they
missed work;
8 . …seniority is also a racist concept, since Black
workers were systematically denied employment
for years at the plant .” 206
This trend was not limited to manufacturing . In 1950, sal- aries of college-educated workers, in both the North and South, were significantly lower for African Americans
across industries . For example, Black managers averaged an annual salary of around $1,400, while white managers averaged closer to $3,500 . 207 In today’s dollars, this trans- lates to a monthly salary of approximately $1,396 for Black managers and $3,489 for white managers . 208 Discrepancies like this existed in professional, teaching, farming, clerical, sales, and skilled technician occupations as well . 209 Exclusion from New Deal Protections
In the 1930s, the federal government under President
Franklin D . Roosevelt sought to remake the relationship between employer and employees . 210 The New Deal trans- formed American society and set in motion the creation
of the middle class 211 —but for white Americans . 212 The New Deal reshaped the role of the federal government in pro- viding for American citizens . 213 Programs funded under the New Deal infused a huge amount of capital into the
economy . Two researchers have estimated that the federal government spent almost $27 billion on various New Deal public works programs between 1933 and 1943 . 214
Southern Democrats, who rose to power by preventing
African Americans from voting through a combination
of violence and voter suppression laws, forced President Roosevelt essentially to exclude African Americans from New Deal programs and legislation . 215 While northern liberals at the time would not support explicitly racist language in the programs and statutes, the Southern
Building site with whites on one side and African Americans on the other. (c. 1950)

COURTESY OF KEYSTONE-FRANCE/GAMMA-KEYSTONE VIA GETTY IMAGES

SALARY OF COLLEGE EDUCATED WORKERS
By Race in 1950
$3,500
$1,400
WHITE
BLACK

335
Chapter 10 Stolen Labor and Hindered Opportunity Democrats’ racist aim was accomplished in the structure of the programs themselves . 216 In order to pass numer- ous New Deal laws, President Roosevelt compromised
with the Southern Democrats to ensure their votes by
largely excluding jobs mostly held by African Americans from the New Deal’s protections like unemployment
insurance, minimum wages, equalized bargaining
power, or anti-child labor laws . 217 Agricultural and do- mestic-service workers, and anyone with seasonal or
part-time jobs, were excluded from these benefits . 218 Approximately 85 percent of all Black workers in the
United States at the time were excluded, 219 although
some historians disagree that federal lawmakers intend- ed to discriminate against African Americans . 220
Congress also compromised to allow New Deal pro-
grams to be administered at the local level . 221 By the design of the Southern Democrats in Congress, south-
ern local white government officials were in control of local relief efforts—individuals who held the view that African Americans should not receive relief of any kind if white southerners had laundry to be done or cotton
to be picked . 222 While Black northerners received some governmental jobs and assistance, Black southerners
did not . 223
The following is a non-exhaustive list of labor-related New Deal laws and programs and the ways in which they
have discriminated against African Americans . Many of
the New Deal laws created the foundational structures
that continue to provide Americans with a social safety net today .

National Industrial Recovery Act of 1933
The National Industrial Recovery Act created the National Recovery Agency, which established industry-specif-
ic minimum wages and employment protections . The
National Recovery Agency eventually enacted over 540
codes providing for minimum wages and maximum
hours in different industries . 224
Many employers advocated for explicitly racist codes be- fore the agency—one argued that Black workers made
“a much better workman and a much better citizen,
insofar as the South is concerned, when he is not paid
the highest wage .” 225 While explicit race-based codes were not adopted, the structure of geographic and occu- pational classifications in the codes often accomplished the same goal . An industry code would classify a state as either “Northern” or “Southern” for the purpose of
setting a minimum wage, with “Southern” states often
having a lower minimum . 226 And different occupations, governed by different codes, had different minimum
wages . One example demonstrates how the government
used both geographic and occupational classifications
and exclusions to pay Black workers less and provide
them fewer protections . Delaware was classified as be- ing “Northern”—and thus subject to a higher minimum
wage—for 449 industry codes, but was classified as being “Southern”—and thus subject to a lower minimum wage—
for the fertilizer industry, where Black workers made up 90 percent of the industry . 227 John P . Davis, in a speech to the 25th Annual Conference of the National Association
for the Advancement of Colored People in 1934 stated:
“[T]he one common denominator in all these variations
is the presence or absence of Negro labor . Where most
workers in a given industry are Negro, that section is
called South and inflicted with low wage rates . Where
Negroes are negligible, the procedure is reversed .” 228 The purpose of the occupational and geographic dif-
ferentials in the wage codes was clear to those involved in implementing the National Industrial Recovery Act
at the time . The Executive Director of the National
Recovery Agency’s Labor Advisory Board wrote in
1934: “[T]o the degree the Southern rate is a rate for
Negroes, it is a relic of slavery and should be eliminat- ed .” 229 That same year, Ira De A . Reid, of the National Urban League, wrote in the newspaper the Chicago
Defender: “the Negro’s initial attitude towards the
national recovery act is best reflected in the interpre- tation of initials given by one observer who called it
‘Negro Riddance Act .’” 230
National Labor Relations Act of 1935
(Wagner Act)
The National Labor Relations Act of 1935 (NLRA or
Wagner Act), proposed by Senator Robert Wagner, dra-
matically increased the power of organized labor by
allowing officially certified unions in certain sectors the right to negotiate on behalf of all employees, if sup- ported by a majority of workers . 231 The National Labor Relations Board (NLRB), the agency designated to ad-
minister the law, was abl -e to hold hearings and resolve disputes involving union representation .

The NLRA harmed African Americans by purposeful-
ly allowing unions to discriminate based on race and
by failing to cover sectors of the economy that mostly
~85% of African
American workers
were excluded from New Deal programs

336
Chapter 10 Stolen Labor and Hindered Opportunity employed African Americans . 232 This undermined the
bargaining power of Black workers and their abili-
ty to participate in the newly-recovering economy
for decades . 233
Labor unions have played a critical role in the develop- ment of American society and the day-to-day experience
of the American worker . During and after the New Deal, workers’ and employers’ power was uniquely balanced,
which enabled an unprecedented improvement in the
condition of the working class in America, the benefits of which continue to be seen today . 234 For example, work- ers with strong unions have been able to set industry
standards for wages and benefits that help all work-
ers, both union and nonunion . 235 “Union workers are
more likely to be covered by employer-provided health
insurance . More than nine in 10 workers covered by a
union contract (94%) have access to employer-spon-
sored health benefits, compared with just 68 percent
of nonunion workers .” 236 As another example, union
workers also have greater access to paid sick days . Nine in 10 workers covered by a union contract (91 percent)
have access to paid sick days, compared with 73 percent of nonunion workers . 237
While Black leaders proposed
amendments to the NLRA to pro-
hibit government certification of
a union that did not allow Black
workers to join and have all rights,
the American Federation of Labor,
the principal white-dominated fed-
eration of craft unions, opposed
this protection due to its desire
to eliminate competition from
Black workers . 238 The American
Federation of Labor and Southern
Democrats won, and the final law protected the bargain- ing rights of unions with racist membership policies .

This gave white labor organizers the power to exclude
Black workers from contract negotiations and imple-
ment their racist views in the union contracts, protected by the federal government . 239
The final law also excluded agricultural and domestic work- ers, another compromise to the Southern Democrats . 240 Federal law essentially allowed unions to ignore and
discriminate against Black workers by protecting segre- gated unions . Unions refused to admit Black workers or afford them the privileges of membership, segregated
Black workers into less-skilled jobs, and used collec-
tive bargaining rights to force employers to replace
Black workers with white workers, while the NLRB, the
federal agency charged with administering the NLRA,
stood out of the way . 241 For example, the NLRB-certified Building Service Employees Union in New York forced
Manhattan hotels, restaurants, and offices to replace
Black elevator operators and restaurant workers with
white employees, and the federal agency took no action
in response . 242
In 1944, the U .S . Supreme Court held that unions were obligated to represent their members without discrim-
inating on the basis of race, but did not require them
to eliminate racial segregation in their membership or
provide Black union members with a mechanism for
enforcing their civil rights . 243
Only in 1964 did the federal agency finally decide
that it could revoke a union’s government certificate
due to its racial segregation . 244 Even then, individual Black workers still had limited recourse against racist union leadership . Employees subject to a racist union
could not deal directly with their employer instead . 245 Additionally, even after the NLRB stopped certifying
whites-only unions, seniority rules meant that Black
workers would need years to secure wages comparable
to those of white workers . 246
Social Security Act of 1935
The Social Security Act of 1935 created old-age and un- employment benefits to help seniors and those out of
work . This landmark law followed the same pattern as
the rest of the New Deal legislation in limiting how its benefits applied to African Americans through occupa-
tional carve outs for agricultural and domestic labor,
and allowing local rather than federal administra-
tion, 247 although some historians dispute the allegation that Congress acted with racist intent in making these
carve outs . 248 The Social Security Act created several programs that remain central to the government’s
efforts to ensure some minimal level of financial
stability, including retirement insurance, unemploy-
ment insurance, and Aid to Families with Dependent
Children programs . 249
Federal law essentially allowed unions to ignore Black workers by maintaining segregated unions, segregating Black workers into less-skilled jobs, locking them out of contract negotiations, and using collective bargaining rights to force employers to replace Black workers with white workers.

337
Chapter 10 Stolen Labor and Hindered Opportunity During the debate over the Social Security Act, Congress acknowledged the preponderance of Black workers in
the agricultural and domestic labor sectors, but exclud- ed these occupations despite accusations of racism . 250 Charles H . Houston testified on behalf of the NAACP: “In these States, where your Negro population is heaviest,
you will find the majority of Negroes
engaged either in farming or else in
domestic service, so that, unless we
have some provisions which will
expressly extend the provisions of
the bill to include domestic servants
and agricultural workers, I submit
that the bill is inadequate . . . ” 251
African Americans advocated for a
nondiscrimination provision in the
statute as protection from the rac-
ist local administration of previous
New Deal relief statutes . For example, one activist point- ed out that in the local administration of past emergency measures “there ha[d] been repeated, wide-spread, and
continued discrimination on account of race or color as a result of which Negro men, women, and children did
not share equitably and fairly in the distribution of the benefits accruing from the expenditure of such Federal
Funds .” 252 Congress did not include any such provision in order to secure the support of Southern Democrats .

Charles H . Houston expressed the view of many African
Americans: “If we follow the history of the workmen’s
compensation acts, we know that two great classes of
workers who will be excluded from the benefit of unem-
ployment insurance; they are agricultural workers and
domestic workers . Again, 3 out of every 5 Negro workers drop through the holes of the sieve .” 253
Fair Labor Standards Act of 1938
The Fair Labor Standards Act of 1938 (FLSA), which
is still in force today, provides the federal minimum
wage, the maximum number of working hours before
overtime pay is required, and the limits on child labor .

Like other New Deal laws, in order to appease Southern
Democrats, the law purposefully excluded certain oc-
cupational categories, like agriculture and domestic
services, preventing the majority of African Americans
from benefiting from the law’s protections . 254 Because of these exclusions, the FLSA essentially outlawed
child labor in industrial settings, where most white
children worked at the time, and allowed child labor
in agricultural and domestic work, where most Black
children worked . 255
Members of Congress were clear about the racist intent .

For example, Florida Representative J . Mark Wilcox ex- plicitly stated: “You cannot put the Negro and the white man on the same basis and get away with it . Not only
would such a situation result in grave social and racial conflicts but it would also result in throwing the Negro out of employment and in making him a public charge .

There just is not any sense in intensifying this racial problem in the South, and this bill cannot help but pro- duce such a result .” 256
Congressman Cox of Georgia specifically objected to the possibility of equal wages because of the impact it would have on relieving the economic subjugation of African
Americans central to the social organization of the South, stating the FLSA “will, in destroying State sovereignty and local self-determination, render easier the elimination and disappearance of racial and social distinctions .” 257 As with other New Deal legislation, Congress included the
agricultural and domestic service exemptions in order
to secure the support from Southern Democrats needed
to pass the legislation at all . 258
Like other New Deal laws, the Fair Labor Standards Act excluded agriculture and domestic services from its labor protections.

Because of these exclusions, the FLSA essentially outlawed white child labor and continued to allow Black child labor, because most white children worked in industrial settings and most Black children in agricultural worked.

Nine-year-old Boy receiving twenty-cents for Hamper of Beans he picked for Contract Farmer, Homestead, Florida. (1939)

COURTESY OF UNIVERSAL HISTORY ARCHIVE/UNIVERSAL IMAGES GROUP VIA GETTY IMAGES

338
Chapter 10 Stolen Labor and Hindered Opportunity Thus, when the FLSA passed without applying to agricul- tural or domestic workers, or to employers engaged in
intrastate commerce such as service workers, it achieved the explicit aims of the drafting Congress . Like the other New Deal legislation, it accomplished the withholding
of protections from many African Americans through
these “race-neutral” occupational exclusions . These
carve outs remained until the 1970s, and agricultural
workers are still excluded from overtime protections . 259 As originally enacted, the FLSA did not address pay for tipped workers . 260 While tipping prior to the Civil War had been frowned upon by many as an aristocratic,
European practice incompatible with American democ-
racy, after the war many restaurants and rail operators embraced tipping as a means of hiring newly freed
African Americans without actually paying them—these
workers were forced to labor for tips alone . 261 Tipping thus kept Black workers in an economically and socially subordinate position . 262
Later the Supreme Court held that employers could
count workers’ tips toward their wages when calculat-
ing whether a worker was receiving minimum wage . 263
Employers did not need to pay their employees at all as long as workers’ income from tips met or exceeded the
established federal minimum wage . 264 Congress did not require a base wage for tipped employees until 1966 . 265 Set then as fifty percent of the federal minimum wage,
the tipped federal hourly minimum cash wage stands
today at $2 .13, where it has been for more than a quarter century . 266 The employer must make up the difference between this amount and the federal minimum hourly
wage of $7 .25 only if the employee’s tips combined with the direct wages of at least $2 .13 per hour do not equal the federal minimum hourly wage . 267
Today’s tipped wage system carries the legacy of slavery .

While Black workers no longer are over-represented in
the tipped workforce, studies of the restaurant industry have revealed that diners consistently tip Black servers less than white servers, regardless of service quality . 268 And 17 percent of tipped working people of color live in poverty, compared to less than 13 percent of all tip workers . 269 Federal Emergency Relief Administration
(1933 to 1935) and Works Progress
Administration (1935 to 1941)
The Federal Emergency Relief Administration (FERA)
provided funding for state and local government pro-
grams in public works and the arts, and provided more
than 20 million jobs . 270 But the program disproportion- ately spent its funds on unemployed white workers,
frequently refusing to hire Black workers for anything
except unskilled work, and paying less than the officially stipulated wage . 271 One local administrator stated that “he had to tailor relief …to accommodate the demands
of southern plantation owners for cheap farm labor by
curtailing [the level of] relief payments to agricultural laborers and sharecroppers .” 272
The Works Progress Administration (WPA) replaced
FERA in 1935, but continued its racist and often sexist practices . For example, driven by the presumption that men were the primary earners and most in need of jobs
amoung needy families, most projects created heavy
construction-type work for men, ignoring women’s wage
needs and limiting their opportunities . 273 From 1935 to 1941 fewer than 20 percent of all WPA workers were
women and only about three percent were Black wom-
en . 274 Projects to train women in domestic skills were often explicitly limited to only white
women . 275 Government officials
specifically pushed Black workers
out of WPA jobs when local condi-
tions required cheap agricultural
labor . In Oklahoma, a WPA official
closed a Black women’s work project
when there was a large cotton crop,
writing to Washington, D .C .: “these
women are perfectly able to do this
kind of work and there is plenty of
work to do .” 276
Civilian Conservation Corps (1933 to 1942)
The Civilian Conservation Corps (CCC), a public works
program focused on conservation projects, employed
over 2 .5 million men during its tenure—Black and white women were completely excluded—just 10 percent of
whom were Black men . 277 While this was somewhat
similar to the percentage of African Americans in the
population at large, the conditions of the CCC replicated the racist government intervention seen in other pro-
grams, with explicitly limited participation numbers,
official segregation at work camps, and with Black work- ers restricted to the least-desirable unskilled jobs . 278 For example, in Georgia, local selection agents refused to
The Federal Emergency Relief Administration (FERA) provided funding for state and local government programs in public works and the arts, and provided more than 20 million jobs. From 1935 to 1941 fewer than 20 percent of all WPA workers were women and only about three percent were Black women. Projects to train women in domestic skills were often explicitly limited to only white women.

339
Chapter 10 Stolen Labor and Hindered Opportunity enroll a single Black applicant for almost a year, and
only relented and enrolled a token number of African
Americans after federal agents threatened to withhold
the state’s entire allotment of funds . 279
Tennessee Valley Authority
The Tennessee Valley Authority was a public utili-
ty created by the federal government to bring jobs
and development to an area hit especially hard in the
Depression . The project included construction, conser- vation, and social service jobs, and it remains one of the largest utilities in the country today . 280 It too continued the pattern of the other government works programs .

Black workers were assigned to work separately on con-
struction projects, and were only allowed to work at all if there were enough Black workers to make up a full
segregated crew . 281 Black workers were also denied fore- man or supervisory roles . 282
Agricultural Adjustment Administration
The federal government created the Agricultural
Adjustment Administration (AAA) in 1933 to increase
agricultural prices by paying farmers to grow fewer
crops . 283 The administration of the AAA harmed Black workers in three specific ways .

First, the program reduced crop planting . For exam-
ple, the agency limited the amount of land dedicated
to cotton farming, but allowed each white landowner
to decide which acres to stop cultivating, and most of- ten they chose those worked by Black tenant farmers
and sharecroppers . 284
Second, landowners received federal payments, but the
federal administration allowed white landowners to act
as “trustees” for their Black tenants without oversight from the AAA . 285 Often, landowners never paid their
Black tenants . 286
Third, the AAA allowed disputes over payments to be
brought to local elected county committees, and not
a single Black farmer served on a county commit-
tee throughout the South . 287 The county committees,
composed of white landlords and white tenants, ruled
against Black tenants and directed the vast majority of benefits for the program to white farm owners . 288 In 1934, Ira De A . Reid of the National Urban League said that “[s]o far as the Negroes in the South are concerned the AAA [and other New Deal Agencies] might just as well be administered by the Ku Klux Klan .” 289
Fair Employment Practices Committee
Faced with enormous activist pressure, President
Roosevelt during World War II attempted to protect
Black workers, but these actions were temporary and
did not have serious enforcement powers . In the lead
up to World War II, civil rights activists demanded de- segregation of the defense industry . Following a 1941
meeting of civil rights groups from across the country, activists formed the March on Washington Movement
with the aim of using mass protest to desegregate the
military and industrial workplaces that were central to the war effort . 290 Soon the movement had spread across the country, with local chapters from San Francisco to
Washington, D .C . 291
By June 1941, 100,000 or more Black workers from across the country were expected to march on the nation’s cap- ital, alarming President Roosevelt at the prospect of a mass protest in Washington, D .C . on the eve of the coun- try’s entry into war . 292 In response, he issued Executive Order 8802, which both banned discrimination on the
basis of race in government employment, defense in-
dustries, and training programs and created the Fair
Employment Practices Committee (FEPC) to investigate
and address complaints of race discrimination . 293 While a step forward, FEPC had power over only public-fi-
nanced wartime industries, and it did not have any real enforcement power . It was only able to issue recommen- dations, including the cancellation of defense contracts in cases of persistent discrimination . 294
FEPC’s impact varied around the country . From March
1942 to 1944, Black employment in war-production jobs
rose from under three percent to over eight percent,
and some Black workers found jobs as skilled labor in
manufacturing and minor managerial roles . 295 The
most progress was made in places where Black activists, progressive unions, and local civil rights organizations worked together with FEPC investigations to pressure
for change . In St . Louis, a large March on Washington Movement chapter agitated to reinstate Black workers
at a local arms plant, raise wages, and increase hiring of Black women . The organization used its resourc-
es to file and pursue FEPC complaints, justifying the
Tennessee Valley Authority. Fontana Dam, North Carolina. “Negro tent camp.” (1942)

COURTESY OF NATIONAL ARCHIVES

340
Chapter 10 Stolen Labor and Hindered Opportunity establishment of a regional office to address the concerns of Black works, but pursued this official action hand-in- hand with mass rallies to general grassroots support . 296 Under the weak enforcement system, other geograph-
ic areas were less successful . Both public officials and private employers in several southern cities refused
to provide integrated defense employment, and the
federal government did not force action . 297 FEPC
had no mechanism to act against Alabama Governor
Frank Dixon, who supported em-
ployment of Black war workers
only within the bounds of the seg-
regationist system already in place
in the southern states . 298 FEPC dis-
banded in 1946 as the war ended,
thus ending a temporary attempt
of limited effectiveness to address
labor discrimination . 299
Gains and Limitations of
the Civil Rights Acts
Congress passed a series of civil rights laws in the 1960s prohibiting discrimination in employment, voting, and
housing . Title VII of the Civil Rights Act of 1964 outlawed employment discrimination on the basis of race, color,
religion, sex, or national origin . 300
Title VII created strong protection for Black workers
throughout the country, making it illegal for an em-
ployer to (1) fail to hire or discriminate against a worker, or (2) limit job opportunities because of that worker’s “race, color, religion, sex, or national origin .” 301
The law protects workers against current racial discrimi- nation and segregation practices, but does not provide a way to right past wrongs . 302 It exempts “bona fide” senior- ity systems and professionally developed ability tests . 303 The former are also known as “last hired, first fired” sys- tems, and the latter include tests developed as part of an application process, such as for firefighters, even though these can be employed in a discriminatory manner . 304
Strict adherence to a seniority system means that “last hired” Black workers, who more recently moved into
positions now that racist discrimination is outlawed,
will be “first fired,” under the systems allowed by the law . 305 In 1977, the Supreme Court held that Title VII did not outlaw these seniority systems even when they dis-
criminate against Black workers, stating that a seniority policy “does not become unlawful under Title VII simply because it may perpetuate pre-Act discrimination .” 306 Title VII is limited in other ways as well . The Supreme Court also drew a line between intentional and uninten- tional discrimination . 307 Currently, Title VII protects an employee if they can show that their employer intended
to discriminate against them, 308 which can be difficult to prove . If the employee cannot prove their employer’s racist intentions, Title VII protects them only if the chal- lenged employment practice is not “job related” or not
“consistent with business necessity .” 309 For example, in Griggs v. Duke Power Company, the defendant company re- quired a high school diploma or passing an intelligence test for certain jobs . Neither requirement was related to successful job performance, and both requirements
disqualified Black applicants at a substantially higher rate than white applicants . 310 The requirements did not fulfill a genuine business need and was thus prohibited by the Act . 311 In 1965, Congress formed a federal agency called the Equal Opportunity Employment Commission
to enforce Title VII and other employment statutes and
regulations . The commission, which continues today,
covers all industries, and not just wartime industries, like its predecessor, the Fair Employment Practices
Committee . 312 It also has enforcement powers to as-
sess penalties and issue orders, instead of only making recommendations . 313 However, the agency has been
chronically underfunded, which has limited its ability
to widely enforce federal protections against racial dis- crimination in a large number of cases . 314 The agency’s staff numbers decreased from 3,390 to 1,968 between
1980 and 2018 despite the U .S . population increasing by more than 44 percent in that time . 315
Limits of Affirmative Action
As the Civil Rights Acts were only forward-looking,
between 1964 and the late 1970s, the federal govern-
ment enacted affirmative action programs intended
to address the effects of past racist discrimination and segregation . 316 These programs increased the number
of underrepresented groups in government contract-
ing work until the Supreme Court and the Reagan
Between 1964 and the late 1970s, the federal government enacted affirmative action programs which increased the number of minority groups in government contracting work until the Supreme Court and the Reagan Administration effectively ended federal affirmative action in the 1980s.

341
Chapter 10 Stolen Labor and Hindered Opportunity Administration in the 1980s effectively brought many
federal affirmative action programs to an end .

In 1965, President Lyndon B . Johnson issued Executive
Order 11246, which required government contractors
to employ affirmative action to expand opportuni-
ties for underrepresented groups and established the
Office of Federal Contract Compliance to enforce the
order . 317 In 1972, the Nixon Administration approved the “Philadelphia Plan,” which instituted numerical goals
and timetables for the integration of Black and other
racial minority workers into fed-
eral contracts . 318 In the late 1970s,
President Jimmy Carter extended
affirmative action requirements
to state and local governments,
educational institutions, and con-
tractors—nearly every entity that
did business with the federal gov-
ernment . 319 These executive actions,
along with anti-discrimination laws
improved labor market conditions
for African Americans . 320 Between
1974 and 1980, the rate of minori-
ty employment in businesses that contracted with the
federal government rose by 20 percent . 321 Local govern- ment set-aside programs also had impact . A 2014 study
found that these programs led to a 35 to 40 percent
reduction in the Black-white gap in self-employment,
which is a proxy for small business ownership, though
it appeared that the gains mostly benefited those who
were better educated . 322
By the late 1970s, an organized backlash had developed
and a number of lawsuits challenged the constitutionali- ty of affirmative action . 323 In response, the U .S . Supreme Court began narrowing the scope of affirmative action
programs . The Court has not held that affirmative ac-
tion is permissible as redress for past harms . The Court, however, did reject explicit race-based quota systems
in Regents of the University of California v. Bakke in 1978 .

There, the Court held that it was permissible for gov-
ernment affirmative action programs—in this case, a
state school—to consider an applicant’s race in order to advance the interest of diversity, but that it was uncon- stitutional for an affirmative action program to employ race-based quotas . 324
By the early 1980s, under President Ronald Reagan, the
federal government began to restrict its enforcement of affirmative action requirements, halting the progress
made during the preceding administrations . 325
Housing Segregation Limits Black
Job Opportunities
Despite the unquestionable progress made in civil and
workers’ rights since the Civil Rights Acts, numerous sys- temic issues continue to harm Black workers .

The government and private actions described in
Chapter 5 created a segregated American landscape
across the country . This residential segregation created an entrenched type of employment discrimination in
the second half of the 20th century .

Following World War II, white workers followed the gov- ernment incentives described in Chapter 5, Housing
Segregation, and moved to the suburbs . 326 Large indus- trial employers closed facilities in urban centers and
followed the white workers . 327 Black workers, who could not move to the suburbs due to the barriers erected by
federal and local governments, were left behind in urban centers . 328 These barriers included discriminatory and inequitable government transportation policy decisions
that limited urban African Americans’ access to jobs, 329 like the Bay Area Rapid Transit (BART) system, designed in the 1960s . In an Oakland neighborhood that is one of the most diverse in the city and one of the densest parts of the region, BART trains run nearly 3 miles without
stopping, whereas BART stations are only 1 .75 miles apart in suburban areas that are less than half as dense . 330 As one transportation expert explained, “BART was literally designed … to speed white suburban commuters past
Black inner-city residents .” 331 For an in depth discussion of transportation discrimination, please see Chapter 7 .

Research has produced evidence that the phenome-
non of “job suburbanization” caused significant decline in Black employment and increased Black-white la-
bor inequality . 332 Examples of the movement of jobs
to the suburbs abound . For instance, the Ford Motor
Company moved all engine production sited at its River
Rogue plant—at the time, the largest employer of Black
workers in the Detroit region—to facilities in suburban Following World War II, white workers followed the government incentives described in Chapter 5 and moved to the suburbs.

Large industrial employers closed facilities in urban centers and followed the white workers. Black workers, who could not move to the suburbs due to the barriers erected by federal and local governments, were left behind in urban centers.

342
Chapter 10 Stolen Labor and Hindered Opportunity Brook Park, near Cleveland and Dearborn, outside of
Detroit . 333 Michigan’s Labor Market Letter observed the “creation of a very large and alarmingly consistent list of long-term unemployed” Black workers in the region . 334 This exodus of major employers to the suburbs also
prevented African Americans from fully taking advan-
tage of benefits provided by unions . For example, the
Communication Workers of America lost thousands
of Black members when customer service call centers
moved out of New York City and reopened in areas not
easily accessible to African Americans living in the city . 335 Between 1967 and 1987, the number of industrial jobs
dropped precipitously in cities with large Black popu-
lations: by 64 percent in Philadelphia, by 60 percent in Chicago, by 58 percent in New York, and by 51 percent
in Detroit . 336 Oakland and Los Angeles also experienced a decline in manufacturing . 337 Automobile and tire com- panies that had been prevalent in Los Angeles shuttered or moved to the suburbs as early as the 1950s . 338 An analysis of census data for the 15 largest metropolitan areas of the time found that between 1960 and 1970,
the suburbs of these areas saw a 44 percent increase in jobs while central cities saw a seven percent decline . 339 Whereas nearly two thirds of jobs were in urban centers in 1960, by 1970, only 52 percent of jobs were in urban centers and in some cities, the majority of jobs were sub- urban . 340 Corporate executives occasionally admitted that avoiding Black communities “sometimes” motivated
their decisions about where to locate . 341 Federal jobs in urban centers also dropped by more than 41,000 be-
tween 1966 and 1973 . 342
By the early 1990s, the Black urban industrial working
class had nearly disappeared nationwide . The impact
was broad . Between 1970 and 1993, African Americans
lost ground in nearly every economic category, with
unemployment among African Americans rising from
5 .6 percent to 12 .9 percent . 343 If new manufacturing was built, for example, by American auto compa-
nies, studies have shown a consistent pattern of rural
and suburban locations about thirty miles from the
Black neighborhood . 344
More recently, U .S . trade policy added to the negative impact of automation and changing technology on jobs
for African Americans . 345 Free trade policies and the re- sulting job losses in the manufacturing sector hit Black men especially hard, as this sector has offered relatively higher-paying jobs for those with lower levels of educa- tional attainment . 346 These jobs were also more likely to be unionized and afford a range of attendant benefits, from health care to pensions . 347 Black workers were also dispro- portionately among those whose call center and customer service jobs were subject to offshoring . One study found that African Americans lost 646,500 good manufacturing
jobs between 1998 and 2020, a 30 .4 percent decline in
total Black manufacturing employ-
ment, as part of the overall loss of
more than 5 million manufacturing
jobs during that time period . 348
Black workers who have lost their
jobs have been less likely than
their white counterparts to find a
replacement job, and when they
found new jobs, they more likely
to experience pay cuts . 349 The loss
of jobs to free trade also depressed
wages in the long term and intensified wealth inequali- ty . 350 The impact has been far reaching . One researcher found that manufacturing decline between 1960 and
2010 had disproportionately harmed Black communi-
ties in the areas of wages, employment, marriage rates, house values, poverty rates, death rates, single par-
enthood, teen motherhood, child poverty, and child
mortality . 351 These harms may continue . More than a Corporate executives occasionally admitted that avoiding Black communities “sometimes” motivated their decisions about where to locate. Between 1970 and 1993, African Americans lost ground in nearly every economic category, with unemployment among African Americans rising from 5.6 percent to 12.9 percent.

African American settlement near steel foundry. Workers homes in east St. Louis, Illinois. (c. 1920) COURTESY OF H. ARMSTRONG ROBERTS/CLASSICSTOCK VIA GETTY IMAGES

343
Chapter 10 Stolen Labor and Hindered Opportunity quarter of all Black workers are concentrated in 30 jobs at high risk of automation, according to a 2017 finding of the Joint Center for Political and Economic Studies . 352 Ongoing Discrimination
Legal segregation resulted in social separation between Black and white Americans, with lasting consequenc-
es . Employers often hire new employees by relying on
their social networks, ethnic loyalties, apprenticeships, and union relationships . Legal segregation prevented
Black workers from building these necessary formal and
informal networks with white Americans, effectively
barring Black workers from entering into new, mostly
white workplaces or industries . 353
African Americans continue to experience labor dis-
crimination today . One meta-analysis examining a
25-year period starting in 1989 found that discrimina-
tion against African Americans in the labor force had not decreased . 354 African Americans receive interview call- backs for jobs at lower rates than white people . In a study where equally qualified resumes with white-sound-
ing and Black-sounding names were sent out, white
applicants received 36 percent more callbacks than
Black applicants . 355
Even when researchers enhanced the resumes as-
sociated with Black-sounding names to make them
stronger, white candidates still received more call-
backs . 356 Another study found that Black candidates
had stronger odds of being called for an interview when their resumes were stripped of information conveying
racial or ethnic background . 357
Discrimination against job applicants with criminal
history is another factor limiting work opportunities
for African Americans . As discussed above in the li-
censure section, this discrimination is mandated in
some instances and permitted in others . 358 As mass in- carceration has disproportionately impacted African
Americans, they have disproportionately suffered post
incarceration challenges . By 2010, people with felony
convictions accounted for eight percent of all adults
and 33 percent of Black adult males . 359 Having a felony conviction is worse for formerly incarcerated Black job applicants than white applicants . 360 One study found that Black men with no criminal history applying for en- try-level jobs were less likely to receive a call back than white male applicants who had recently been incarcer-
ated . 361 Research has shown that even in jurisdictions with “ban the box” policies barring employers from
asking about a candidate’s criminal
history on a job application, Black
applicants receive significantly
fewer callbacks than white job ap-
plicants because employers may
assume the Black applicants have a
criminal history . 362
While Black women have endured both racism and sex-
ism and persistently had their labor devalued, 363 Black men experience discrimination in the labor market in
unique ways . This is in part due to the criminalization of Black men and boys, examined in Chapter 11, which
results in societal distrust and isolation of Black men and boys . 364 Growing emphasis on “soft skills” particu- larly disadvantages Black male job applicants, as many
employers wrongly perceive Black men as lacking in
these skills that are viewed as increasingly important . 365 Researchers have found that employers hold false neg-
ative beliefs about the dependability, motivation, and
attitude of Black men, and are unlikely to change these racist beliefs during a written application or interview . 366 Racial employment gaps are worse among educated
workers . 367 A 2014 study revealed that 12 .4 percent of black college graduates aged 22 to 27 were unemployed
in 2013, compared to a rate of 5 .6 percent for all col- lege graduates in the same age range . 55 .9 percent of employed Black recent college graduates worked in an
occupation that typically does not require a four-year
college degree . 368 Graduates in areas such as science, technology, math, and engineering fared better, but still experienced high unemployment and underemploy-
ment rates . 369 In 2013, Black recent college graduates majoring in nine of 12 broad categories had less than a 50 percent chance of holding a job that required their
degree . 370 Another study found that Black individuals who received MBAs from Harvard between 2007 and
2009 began their careers earning approximately $5,000
less their white peers, and by 2015, the racial pay gap had increased to just under $100,000 annually . 371
UNEMPLOYED COLLEGE GRADUATES IN 2013

12.4%BLACK
ALL5.6%
According to one meta-study, from 1989 to 2014, employment discrimination against African Americans had not decreased.

344
Chapter 10 Stolen Labor and Hindered Opportunity California
The historic gap in employment between Black and
white individuals is seen in California . By every mea- sure, Black Californians continue to lack access to labor markets available to white Californians and as a result continue to suffer harms that have compounded since
before the founding of our country . In March 2022, for example, the most recent data available, the unemploy-
ment rate was 10 .5 percent for Black Californians and 5 .9 percent for white Californians . 372
Lack of Government Protection
From its earliest days of statehood, California enacted a series of laws limiting the ability of African Americans to participate as full citizens of the state, as discussed in other chapters . These laws limited African American’s
voting rights, property rights, interracial marriage, and testimony in court or serve on a jury . 373 California barred the testimony of Black individuals in both civil and crim- inal proceedings . 374 These laws left Black Californians with little protection under the law, undermining their ability to advocate for themselves in the workplace,
vindicate property rights, or even bear witness to the
crimes they suffered . 375
The discovery of gold in California 1848 drew mi-
grants from across the country and beyond . 376 African Americans were among them . A small group of Black
individuals established one of the earliest mining claims in Sacramento County, at “Negro Bar,” near what is now
Folsom, on property once owned by William Leidesdorff,
an Afro-Caribbean businessman . 377 African Americans
operated several successful mines, including Horncut
Mine, a prosperous quartz mine in Yuba County, and
the Washington Mine, a gold mine established in 1869 . 378 Black miners faced a hostile environment . Because
African Americans lacked the right to testify in court
during this period, Black miners were vulnerable to
legal challenges and encroachments on their mining
claims . 379 Frustrated by the discrimination they faced in California, including the state’s discriminatory testimo- ny and suffrage laws in particular, many Black miners
left in the late 1850s for gold fields discovered in British Columbia, though some returned to the United States
after the Civil War . 380 To this day, derogatory names like Negro Bar and Negro Flat are still used for locales in the mining region of California . 381 The California Department of Parks and Recreation currently oper-
ates the Negro Bar, Folsom Lake State Recreation Area . 382 However, the department is working with local commu-
nity and stakeholders to change the name . 383
Black mill workers played a significant role in the lumber industry from 1920 to 1960 . 384 Experienced Black workers were actively recruited from the South to staff California mills . 385 Although vital to their employers, Black workers were paid less than their white counterparts and prohib- ited from undertaking supervisory duties . 386
During the late 1800s and early 1900s, Black workers
were recruited from the South to work farms in the
San Joaquin and Imperial Valleys . 387 Many Black farm- workers resisted the racist treatment they faced in
California, and used contracted field work as a way to
establish themselves as entrepreneurs, skilled workers, or yeoman farmers . 388 As a result, Californian farmers An African-American miner poses with a shovel in Auburn Ravine during the Gold Rush, California. (1852)

COURTESY OF HULTON ARCHIVE VIA GETTY IMAGES

55.9%
Black recent college graduates
with a job that does not require
a college degree (2013)

345
Chapter 10 Stolen Labor and Hindered Opportunity preferred to hire Mexican nationals and other nonwhite
immigrants instead of Black workers . 389 Additionally, growing towns and settlements during the time often
explicitly discriminated against and worked to exclude
African Americans from living or working there . For
example, fliers for the Maywood Colony, a huge de-
velopment entirely surrounding the town of Corning,
California, trumpeted:

GOOD PEOPLE
In most communities in California you’ll
find Chinese, Japs, Dagoes, Mexicans,
and Negroes mixing up and working in
competition with the white folks . Not so
at Maywood Colony . Employment is not
given to this element . 390
In the early 1900s, Black workers were less likely to work in higher paying industrial jobs in the West than in the North . 391 By 1930, over 50 percent of Black men were working in the industrial sectors of the Northeast and
Midwest, but no more than 30 percent in the West . 392
While industrial jobs often had significant downsides for Black workers, they offered better pay than unskilled
positions . 393 Still, many California companies refused to hire Black workers . 394 For example, in 1940, aviation official W . Gerald Tuttle of the Vultee Aircraft Company in southern California announced, “I regret to say that it is not the policy of this company to employ people other than the Caucasian race .” 395
The interwar period saw a significant influx of Black
workers and residents to California . As the number of
Black residents increased in cities like San Francisco and Los Angeles, Black workers not only increased in num-
ber, but also began to move into professions from which they had previously been completely excluded .

The New Deal in California
As it did across the country, the Great Depression
brought significant unemployment to the state . For ex- ample, manufacturing employment fell by 30 percent
from 1929 to its lowest level in 1932, while payrolls fell by 50 percent, and unemployment among unionized
workers rose to 33 percent . 396 The New Deal provided an influx of funding to the state . 397 For example, the Works Progress Administration employed over 100,000 work-
ers in California . 398 Between 1933 and 1939, the federal government sent $2 .2 billion to California in the form of grants and loans . 399
California governments engaged in discriminatory
practices as the rest of the country did in disbursing this federal money . Burbank and Glendale invoked city ordi- nances to exclude a company of Black workers organized
under the Civilian Conservation Corps . 400 White resi- dents of Richmond objected to an interracial Civilian
Conservation Corps camp in 1935, until it was eventually replaced with an all-white company . 401
Labor organizing has a long history in California 402 that over time has led to some of the nation’s most worker
protective laws . 403 The state enacted first enacted its labor code in 1937, consolidating provisions then in existence . 404 California has repeatedly amended its labor and employ- ment laws since then . Like the government, however,
California for decades exempted both agricultural and
domestic workers from various protections . Assembly Bill 1066, signed into law in 2016, removed exemptions for
agricultural employees that had been in place for hours, meal breaks, and other working conditions, including
specified wage requirements, and it created phased-in
overtime requirements for such workers . 405 California enacted a “bill of rights” for domestic workers in 2013, extending overtime pay rights to some, 406 but these work- ers remain without certain other protections . 407
Wartime Integration and Exclusion
from Unions
Black workers made large advancements in the Bay Area
during World War II, moving into manufacturing and
industrial work in large numbers . By 1944, Black workers were employed widely in wartime industries, especially
in the shipyards . 408 For example, the City of Richmond saw a massive influx of war workers from 1940-45,
when its population grew from 24,000 to 100,000, with
the Black population increasing from 270 to 14,000 in
those years . 409
The Federal Employment Practices Committee, the fed-
eral anti-discrimination agency active during World War African-American trainee welder Josie Lucille Owens working on the construction of the Liberty ship SS George Washington Carver at Kaiser shipyards in Richmond, California. (1943) COURTESY OF E. F. JOSEPH/ANTHONY POTTER COLLECTION VIA GETTY IMAGES

346
Chapter 10 Stolen Labor and Hindered Opportunity II, was largely ineffectual in California . 410 In 1945, FEPC reported: “More than twenty-six percent of the Negro
working force were engaged in shipbuilding or ship
repair . Another twenty-five percent were employed in
servicing water transportation, which was largely gov-
ernment work; these two industries alone, the report
concluded, accounted for approximately “12,000 Negro
workers .” 411 Even so, the boilermakers union, represent- ing shipbuilders, allowed only white workers to join the main branch of the union, and relegated Black workers
to an “auxiliary union” where they were not permit-
ted to vote or file grievances, received limited benefits compared to white members, could not be promoted to
foreman if the job involved supervising white workers,
and were classified and paid as trainees even when qual- ified for skilled work . 412 In Los Angeles, the International Longshoremen’s and Warehousemen’s Union, Local 13,
for example, excluded Black workers, 413 even though
Black workers and organizations sued the boilermakers’
union for discrimination . 414
FEPC helped reveal racist hiring practices at Los Angeles airline manufacturing plants . Hearings in 1941 demon-
strated that “there were only ten Black employees in
Douglas Aircraft’s workforce of 33,000, only two among
Bethlehem Shipbuilding’s nearly 3,000 Los Angeles em-
ployees, and only 54 among Lockheed Aircraft and Vega
Airplane’s 48,000 workers .” 415 Black workers’ organiza- tions helped push against this racist hiring to open more of these jobs for African Americans . 416
Ultimately, FEPC never recommended the cancellation
of any defense contracts in California . 417 During and af- ter the war, areas of California continued to experience job segregation . 418 For example, Oakland’s employment patterns continued to have Black men and women in
separate, lower-skilled, and lower-paid work . 419 When the end of the war brought layoffs, Black workers were
disproportionately impacted . By the end of 1946, one
third of all Black residents in the Bay Area and 40 per- cent of Black women were unemployed . 420
Many African Americans also migrated to California
during this period to pursue farming, though they
encountered setbacks similar to those in other la-
bor sectors . Approximately 30,000 to 40,000 African
Americans travelled to the San Joaquin Valley after
World War II . The majority set-
tled in cities such as Fresno and
Bakersfield, and about 7,000 settled
in the Tulare Lake Basin, farmland
owned by J .G . Boswell . 421 Still, Black
field workers faced discrimination .

Unlike their white counterparts,
they were rarely promoted to op-
erate machinery for higher pay,
and were instead relegated to more
demanding physical work for lower
pay . 422 Moreover, like in factories,
Black workers also experienced greater injury and dan-
ger from farm work . 423
Fair Employment and Housing and Short
Lived Affirmative Action
Several years before the federal government enacted
its version of the law, California in 1959 passed the Fair Employment Practices Act, prohibiting employment
discrimination on the basis of race by employers . 424
The present day version of the law is the California
Fair Employment and Housing Act . 425 The California
Department of Fair Employment and Housing currently
enforces the Fair EHA, which also prohibits harassment
based on several different protected categories, includ- ing race . 426 The state agency investigates, prosecutes, and mediates complaints of discrimination . 427
California’s support of the Department of Fair
Employment and Housing has not been sufficient to
meet the level of need . In 2013, the California Senate Office of Oversight and Outcomes reported that even
though California had the strongest antidiscrimination
law in the nation, the agency was funded with a “rela-
tively miniscule allotment of resources[,]” which left the Department unable to fully enforce the law and protect
workers . 428 The agency’s investigations of employment discrimination claims “suffer[ed] from understaffing,
poor quality, intake confusion, and premature case
grading .” 429 The oversight Office also unearthed a secret policy that had given the Governor’s Office final say as to whether the discrimination law would be enforced
against another California state agency, making it more difficult for government workers to bring a discrimi-
nation claim . 430 In the years since this report issued, the Department’s budget has grown, but the number of
complaints it receives each year has also risen . 431
Federal agency hearings in 1941 concluded that “there were only ten black employees in Douglas Aircraft’s workforce of 33,000, only two among Bethlehem Shipbuilding’s nearly 3,000 Los Angeles employees, and only 54 among Lockheed Aircraft and Vega Airplane’s 48,000 workers.”

347
Chapter 10 Stolen Labor and Hindered Opportunity Like the federal government, government agencies in
California also implemented affirmative action pro-
grams in employment . These programs produced mixed
results . For example, between 1977 and 1995, the rep-
resentation of Black tenured faculty members at the
University of California system—which implemented
affirmative action in its hiring—grew from 1 .8 percent to only 2 .5 percent, and for community colleges’ faculty between 1984 and 1991, the proportion of Black faculty
only grew from 4 .9 percent to 5 .7 percent . 432
California’s affirmative action programs were banned in 1996, after voters passed Proposition 209 . 433 Proposition 209 amended the California Constitution to prohibit
state institutions from considering race in hiring, con- tracting, and education . 434 According to polling data, Proposition 209 was supported by a majority of white
and male voters, but opposed by a majority of African
American, Latino, Asian American, and female voters . 435 The evidence regarding Proposition 209’s impact on em-
ployment opportunities is complex . In the 15-year period that followed Proposition 209 going into effect, the rep- resentation of African Americans, Latinos, and women in public sector relative to the private sector did not dramat- ically increase or decrease . 436 Men and women of color working for the State of California continued to earn less than their white, non-Hispanic male counterparts, and
remained under-represented in high-level positions . 437 Proposition 209’s impact on the procurement pro-
cess was more severe, as state and local governments
were forced to abandon race-conscious contracting
programs . Prior to Proposition 209’s passage, awards
of public contracts to businesses owned by people of
color and women had been rising, reaching a high of
28 percent in 1994 . 438 By 1998, awards had fallen to less than 10 percent, and they never recovered despite the
increasing diversity in California . 439
One study, published in 2006,
found that only 32 percent of certi-
fied “minority business enterprises”
in California’s 1996 transportation
construction industry were still in
business 10 years later, and among
those that had survived, business-
es owned by African Americans
had fared less well than others . 440
Another study published in 2015
found that Proposition 209 had led
to a loss of between $1 billion and
$1 .1 billion annually for businesses
owned by people of color or wom-
en . 441 As Black employers are more
likely than their white counterparts to hire Black job ap- plicants, 442 the closing of Black businesses may have also hurt Black employment .

Activists in California have worked to overturn
Proposition 209, but have not been successful . In 2020, voters rejected Proposition 16, which would have re-
pealed Proposition 209 . 443
Occupational Licensure in California
Nearly 21 percent of workers in California must obtain a license to work in their jobs . California required work- ers to obtain a license for 61 percent of lower-income
occupations, ranking it the third most restrictive state nationwide, following only Louisiana and Arizona . 444
California withholds or restricts access to licenses from persons with certain criminal convictions, which is
more likely to harm Black residents . For example, as
discussed in Chapter 11, some incarcerated Californians participate in a program to help battle wildfires . 445 Upon release, however, program participants would not be el- igible to for jobs in many fire departments, because they cannot obtain an Emergency Medical Technician (EMT)
certification . 446 California law specifically prohibits EMT certification for anyone who has been incarcerated for
a felony within the past ten years, effectively disquali- fying many people who participated in fire camp . 447 In 2020, recent attempts to remediate these issues related to firefighting have had limited success . 448
California has made some strides in lifting restrictions on occupational licensure in recent years, with the
In 2013, a California government watchdog office reported that even though California had the strongest antidiscrimination law in the nation, the state agency tasked with investigating complaints was funded with a “relatively miniscule allotment of resources[,]” which left the Department unable to fully enforce the law and protect workers. The agency’s investigations of employment discrimination claims “suffer[ed] from understaffing, poor quality, intake confusion, and premature case grading.”

348
Chapter 10 Stolen Labor and Hindered Opportunity passage of AB 2138, which prohibits California licensing boards from denying a license for, among other things,
many convictions older than seven years and dismissed
or expunged convictions . 449 While AB 2138 represents progress, other schemes remain in California which
continue to have a racially discriminatory impact . 450 IV . Discrimination in Government Employment
In addition to supporting legal segregation and
enabling private discrimination, the federal and
California governments discriminated against Black
workers as employers . The federal
government in civil and military
service has refused to employ Black
workers, segregated an integrated
workforce, and relegated Black
workers to lower paid, less-skilled
occupations . The state and local
governments in California have had
similar patterns of discrimination .

Segregation in the Federal
Civilian Service
The federal civilian service reflected and shaped the rac- ist labor environment of private employers . For much
of the federal government’s history, it was almost total- ly white or segregated . During the 19th century, there was no blanket ban on Black workers, but different of-
ficials were allowed to create a patchwork of regulations forbidding employment of African Americans . 451 The
United States Postal Service was a striking example—in
1802, Black workers were banned from carrying mail . 452 Black workers were almost completely excluded from
federal employment until 1861—the year a Black man was
appointed as a clerk with the United States Postal Service in Boston . 453
At the turn of the century, African Americans made up
about 10 percent of the federal workforce . 454 Many Black workers found steady, valuable jobs in urban post offic- es, but there was little possibility for advancement . 455 President Roosevelt provided some support for threat-
ened Black workers . In 1903, he refused to allow the town of Indianola, Mississippi, to drive out its Black postmas- ter, instead suspending service at the Indianola Post
Office rather than accept the resignation of Postmaster Minnie Cox . 456 But this lasted only until the next year, when a white Postmaster was ap-
pointed . 457 And the tide turned
with the election of President
William Howard Taft in 1908, who
stated in his inaugural address:
“[I]t is not the disposition or with-
in the province of the Federal
Government to interfere with the
regulation by Southern States of
their domestic affairs,” and that
appointing African Americans to
federal offices in prejudiced south-
ern communities would do more
harm than good . 458
In 1913, President Wilson official-
ly segregated much of the federal
workforce, including the Treasury,
the Post Office, the Bureau of
Engraving and Prints, the Navy,
the Interior, the Marine Hospital,
In 1913, President Wilson officially segregated much of the federal workforce, including the Treasury, the Post Office, the Bureau of Engraving and Prints, the Navy, the Interior, the Marine Hospital, the War Department, and the Government Printing Office. The federal government created separate offices, lunchrooms, and bathrooms for white and Black workers.

Blueprint for NASA/NACA’s West Area Cafeteria at the Langley Research Center, showing a “White Dining Room” and a smaller, segregated “Colored Dining Room” for use by African American staff, including “human computers.” (1948)

COURTESY OF SMITH COLLECTION/GADO VIA GETTY IMAGES

349
Chapter 10 Stolen Labor and Hindered Opportunity the War Department, and the Government Printing
Office . 459 The federal government created separate of- fices, lunchrooms, and bathrooms for white and Black
workers . 460 William McAdoo, Secretary of the Treasury, argued that segregation was necessary “to remove the
causes of complaint and irritation where white wom-
en have been forced unnecessarily to sit at desks with
colored men .” 461 The federal government fired Black
supervisors, and cut off Black employees’ access to pro- motions and better-paying jobs, and it reserved those
jobs for white employees . 462
Postmaster General Albert S . Burleson segregated, de-
moted, or fired Black workers . 463 Though no official government records have been found that indicate how
many Black postal workers were driven from their jobs,
there was a clear pattern to segregate, reclassify, and discharge Black workers . 464
President Wilson’s decision to segregate an integrated
federal workforce resulted in lower pay for Black workers cut off from better-paying jobs, 465 and created separate toilets in the Treasury and Interior Departments . 466
This damaged the ability of African Americans to build
economic security . For example, in Washington, D .C ., home of many federal jobs, Black homeownership fell
after President Wilson’s actions, in part because Black federal employees no longer had access to those better
jobs and salaries . 467
In 1979, the U .S . General Accounting Office found
that exams administered by the Office of Personnel
Management to screen applicants
for federal jobs disqualified Black
candidates at higher rates than
white candidates, “offer[ing] no
real opportunity for Black job seek-
ers to be fairly assessed for federal
jobs .” 468 Few Black applicants re-
ceived scores high enough to have
a “realistic chance” of being consid-
ered for employment . 469
A later study, commissioned by the U .S . Office of
Personnel Management, examined the cases of all
11,920 federal workers fired in 1992, excluding the Postal Service and uniformed military services, and found that 39 percent of those fired were Black, even though Black workers comprised only 17 percent of the workforce at
the time . 470 While federal personnel officials believed that Black employees were fired more often because
they tended to be less experienced, less educated, and
concentrated in lower-level jobs that experienced more
turnover, the study found that, after every measurable
factor was discounted, Black workers were still more
likely to be fired at nearly every pay grade, from the
lower rungs to the senior executive level . 471
Despite the federal government’s history of racism
against Black workers, Black workers currently make up
more of the federal civil service at over 18 percent than in the general population at 14 percent . 472 However, for the Senior Executive Service, the elite corps of experi- enced civil servants responsible for leading the federal workforce, only 10 percent are Black . 473
Segregation in Military Service
The military reflected the rest of the federal govern-
ment and American society in enacting racist and
segregationist policies for much of its history . While African Americans have consistently served in the
military since the very beginning of the country, the
military has historically paid Black soldiers less than white soldiers and often deemed African Americans
unfit for service until the military needed them to
fight . 474 The military officially remained segregated until 1950 . 475 Black soldiers consistently failed to be recognized for their contributions, and the govern-
ment failed to follow through on promises of greater
opportunities in exchange for service . While military
service has provided an avenue for African Americans
to achieve a measure of economic stability, it has con- sistently been a place of racial discrimination and
segregation, particularly in the highest ranks . Today, there continues to be a limited number of African
Americans in leadership roles .

The Revolution and the War of 1812
African Americans’ military service predates the repub- lic itself, as do the government’s actions discriminating against Black soldiers and failing to honor promises
in exchange for their service . Both free and enslaved
Black soldiers, from all 13 colonies, fought with the
Continental Army and state militias in the American
Revolution . 476 During the American siege of Yorktown in 1781, British troops, in order to extend dwindling food supplies, expelled all Black volunteer soldiers they had recruited with promises of freedom . 477 One British offi- cer, admitting the betrayal, stated: “We had used them
to good advantage, and set them free, and now, with
President Woodrow Wilson’s order to segregate the federal work force damaged Black economic security. In Washington, D.C., home of many federal jobs, Black homeownership fell after President Wilson’s actions.

350
Chapter 10 Stolen Labor and Hindered Opportunity fear and trembling, they had to face the reward of their cruel masters .” 478 While Joseph Ranger, a free Black man from Virginia served in the Navy of Virginia and received wages, a land grant, and later a life pension from the
U .S . Government, David Baker, an enslaved man on the
Isle of Wight, was forced to join the American navy as
a substitute for his enslaver, and was re-enslaved after the war . 479
After the republic was established, the Second U .S .

Congress passed the Militia Law of 1792 allowing only
“free able-bodied white male citizen[s]” to serve in the national militia, which became the National Guard . 480 In 1796, James McHenry, the Secretary of War, declared, “No Negro, Mulatto, or Indian is to be recruited [in the Marine Corps] .” 481 The U .S . Marine Corps continued this ban on African Americans for the next 167 years .

During the War of 1812, regardless of the fact that Black soldiers were legally not allowed to serve, Black soldiers made up a significant portion of
U .S . Navy forces, and approximate-
ly one-quarter of U .S . soldiers at the
Battle of Lake Erie were Black . 482
While many volunteer Black sol-
diers were explicitly promised
freedom or equal opportunities
in the future in exchange for their
service by the state or federal gov-
ernment, these promises never
fully materialized . 483
Like they had done during the
Revolutionary War, British troops
recruited Black soldiers by promis-
ing freedom and land in exchange
for service, but they largely failed to
deliver . In fact, Francis Scott Key’s
“The Star-Spangled Banner”—the
national anthem—contains a lit-
tle-known but controversial verse
understood by some scholars to
have been intended as a threat or
admonition to Black soldiers who
might have escaped slavery and joined the British cause in a bid for freedom and the means for self-support:

No refuge could save the hireling and slave
From the terror of flight or the gloom of the grave,
And the star-spangled banner in triumph doth wave
O’er the land of the free and the home of the brave . 484 The Civil War
In the time of the Civil War, African Americans again
attempted to join the war effort, notwithstanding the
army’s racist treatment and failures to follow through
on promises . In 1862, Congress amended the law to per- mit African Americans to enlist in
the Union Army, but initially, only
in menial construction and camp
services roles . 485 Black women la-
bored in refugee camps as servants
for Union officers and as laun-
dresses for Union troops . 486 African
Americans were finally admitted to
military service in the Union follow-
ing the Emancipation Proclamation
in 1863 . 487 Eventually, nearly 200,000 Black soldiers, roughly half of whom were formerly enslaved south-
erners, served in the Union Army . 488
Once again, Black soldiers were afforded lesser treatment in their military service . Black soldiers were segregat- ed, assigned lowly positions, had few opportunities for Company E, Fourth Colored Infantry, at Fort Lincoln. African Americans have consistently served in the military since the very beginning of the country, but the military has historically paid Black soldiers less than white soldiers and often deemed African Americans unfit for service until the military needed them to fight. The military officially remained segregated until 1950. (1865)

COURTESY OF WILLIAM MORRIS SMITH /BETTMANN VIA GETTY IMAGES During the Civil War, Black soldiers took home net pay of $7 per month, compared to $13 per month for white soldiers. And Black soldiers faced a higher mortality rate than their white counterparts, largely due to racist differences in medical care on the battlefield.

351
Chapter 10 Stolen Labor and Hindered Opportunity advancement to officer rank, received lower pay, and
faced far more severe disciplinary measures . 489 Second Lieutenant R . H . Isabelle, the target during a purge of Black officers, resigned in disillusionment in 1863, stat- ing that he “joined the [U]nited States army …with the
sole object of laboring for the good of the union suppos- ing that all past prejudice would be suspended for the
good of our Country and that all native born [A]meri-
cans would unite together to sacrifice their blood for the cause as our fathers did in 1812 & 15,” but he found that “the same prejudice still exist[s] .” 490
During the Civil War, Black soldiers took home net pay
of $7 per month, compared to $13 per month for white
soldiers . 491 And Black soldiers faced a higher mortality rate than their white counterparts, largely due to racist differences in medical care on the battlefield . 492 One sol- ider lamented: “Wee [sic] are said to be U .S . Soldiers and behold wee [sic] are U .S . Slaves .” 493
In fact, a small number of Black soldiers did not serve willingly in the Civil War . 494 Starting in 1863, some Union officials used tactics similar to enslavers, press gangs, and man-stealers to grow the ranks of the Union Army . 495 One army engineer in 1863 stated that of men forced
into service: “My men, Colonel, have not been draft-
ed . They have been kidnapped in the night .” 496 Despite President Lincoln declaring in 1865 that “without the
military help of the Black freedmen, the war against the south could not have been won,” 497 Black soldiers were not treated on equal footing, and suffered economic and social hardship as a direct result of the government’s
actions during the war .

World Wars I and II
Following the Civil War, Black soldiers in the 9th and
10th Cavalries and the 24th and 25th Infantries became
known as “Buffalo Soldiers .” 498 With a few exceptions— West Point graduates Henry O . Flipper, John Hanks
Alexander, and Charles Young—these all-Black regiments
were led by white U .S . Army officers . 499 Buffalo Soldiers aided in the nation’s westward expansion by building
roads and participating in military actions that included the Red River War (1874-1875) and the Battle of San Juan Hill during the Spanish American War (1898) . 500 These men were also some of the first national park rangers . 501 However, the legacy of the Buffalo Soldiers is complex .

These Black soldiers fought for their rightful citizenship rights by fighting for a white-led government in govern- ment in wars to take the Southwest and Great Plains from Native Americans . 502 Between 1870 and 1890, 18 Black Buffalo Soldiers earned Medals of Honor while fight-
ing Native Americans . 503 Despite their service, Buffalo Soldiers faced discrimination . 504 Some were able to access higher education, secure better jobs, and own property, but others returned from service only to be lynched . 505 While opportunity expanded in the military during the
period after the Civil War and more African Americans
joined the service, Black soldiers continued to serve in the armed forces under segregated and unequal con-
ditions . But increased military needs prevailed and, by World War I, there were 380,000 Black soldiers out of the four million total soldiers, a proportion similar to that of Black men in the general population . 506
During World War I, Black men volunteered to serve in
eight all-Black army regiments but remained strictly
segregated from white soldiers . 507 Black soldiers were subject to humiliations including wearing discarded
Civil War uniforms, or performing for the amusement
of white solders . 508 One Black soldier at the time lament- ed that “The spirit of Saint-Nazaire [Army station in
France] is the spirit of the South .” 509 This played out in the numbers: only 11 percent of Black soldiers saw
combat in World War I, while the vast majority were rel- egated to menial labor . 510 This segregation reflected the larger condition of the American economy in that Black
soldiers were prevented from moving up in ranks to su-
pervisory positions, and positions in some specialized
corps were blocked altogether . 511
This pattern continued in the in-
terwar years and in World War II,
when African Americans continued
to serve in the military service de-
spite segregation and other racist
policies . 512 For example, in 1941, the
U .S . Army established the 78th Tank
Battalion, the first Black armor unit .

It was made up of Black enlisted
men and white officers, but without
opportunity for the Black soldiers
to advance . 513 15th Regiment Infantry New York National Guard. (c. 1919)

COURTESY OF NATIONAL ARCHIVES

352
Chapter 10 Stolen Labor and Hindered Opportunity Author James Baldwin remarked
that the “treatment accorded the
Negro during the Second World
War [marked] a turning point in
the Negro’s relation to America…A
certain hope died .” 514
This pattern extended to the
Congressional actions aimed at helping soldiers re-
turning from fighting in World War II . In 1944, the
Congress passed the Serviceman’s Readjustment Act
of 1944, commonly known as the “GI Bill .” The GI Bill
included provisions to provide financial assistance for homeownership, opening small businesses, and educa-
tion, but, like the New Deal legislation before it, it left implementation largely to racist state and local govern- ments and contributed to housing discrimination . 515 As a result, its benefits were not fully realized for returning Black soldiers . For discussion of the role of the Veterans Administration in implementing and maintaining hous-
ing segregation, see Chapter 5 . For a discussion of the VA’s role in education discrimination, see the Chapter 6 .

Post-World War II to the Present
In 1941, President Roosevelt issued Executive Order
8802 stating, “I do hereby reaffirm the policy of the
United States that there shall be no discrimination in
the employment of workers in defense industries or
government because of race, creed, color, or national
origin…” The Marine Corps received its first Black re-
cruits, but continued to segregate . “Even though we
were all Marines we were kept separate . We didn't have barracks, we lived in huts, built from cardboard, painted green . Camp Lejeune had barracks but we had huts . It
was located in the back woods, amid water snakes and
bears,” said Marine Sergeant Carrel Reavis . 516
In 1948, President Harry S . Truman issued Executive
Order 9981 to desegregate the military . 517 But, while the military formally integrated, serious racial discrimi-
nation persisted . For example, the army did not begin
in earnest to integrate its forces until the Korean War, when demand for additional troops meant that the army
had no choice but to send Black troops to replace white troops killed or injured in battle . Segregated all-Black army units persisted until 1954 . In the Marines, full in- tegration did not occur until 1960 . 518
Despite discrimination by the federal government, Black soldiers served and died for their country and have his- torically used it as a mode of upward mobility out of
the South . 519
The highest proportion of Black individuals ever to
serve in an American war came in the Vietnam War . 520
Young Black men were disproportionately drafted during
the Vietnam War years due to education and occupation
deferments that were unavailable to Black men due to a
centuries of education segregation and discrimination . 521 In the Vietnam War, the American military no longer
believed that Black men were not fit for combat . 522 Black men had a much greater chance of being on the front-
line and suffered a much higher casualty rate . 523 In 1965 alone, Black soldiers were almost 25 percent of those
killed in action . 524
As the United States moved to an all-volunteer military following the Vietnam War and the end to conscription,
Black soldiers enlisted at a much higher rate than white individuals, leading Black representation in the military to be roughly twice their representation in the U .S . pop- ulation at large . 525
Today, racial disparities in the military continue . Even as lower-level troops were integrated, leadership re-
mained almost exclusively white . As late as 2020, of the 41 officials holding four-star rank, only two were African Americans . 526 Based on government data received
through the Freedom of information Act, research-
ers have found evidence that Black service members
have been substantially more likely than white ser-
vice members to face military justice or disciplinary
action . 527 Anecdotal news reports have presented a
deep-rooted culture of racism and discrimination in all branches of the armed services . 528 On January 6, 2021, in- surgents stormed the U .S . Capitol, carried a confederate In 2020, only 2 of 41 four star
military officials were
African American
During the Vietnam War, Black men were much more likely to die on the frontlines. In 1965, 25% of soldiers killed in action were African American.

353
Chapter 10 Stolen Labor and Hindered Opportunity flag inside the Capitol building, 529 and displayed a noose and gallows in front of it . 530 Of the more than 700 indi- viduals charged in the January 6 insurrection, 81 people have ties to the military . 531
California
Although African Americans were present in California
going back to the Spanish conquest era, they made
up only around one percent or less of the population
of California until 1920, and under two percent until
the 1940s . 532 Still, the pattern seen in the federal civil- ian service and military service persisted in California at both the state and local levels . Black workers faced segregation and racial discrimination in state and local employment . Even when progress
was made, governments failed to
meaningfully address past discrimi-
nation, and Black workers remained
largely shut out of the higher-paid
leadership roles—a trend that still
exists in the present .

Up until World War II, Black workers
were absent from many public and
private sector jobs in San Francisco .

For example, no Black worker was
employed as a public school teacher, police officer, fire- fighter, or streetcar conductor nor as a bank teller or bus or cab driver in the city before 1940 . 533 There were no Black streetcar workers until 1942—with poet Maya
Angelou being one of the first—though this was not due
to a lack of available skilled workforce in the area, as evidenced by the fact that within two years there were
over 700 Black platform operators . 534
When Bay Area Rapid Transit (BART) system was built in
1967, no skilled Black workers were hired . 535 The National Labor Relations Board-certified unions did not admit
Black members, and BART, though a government agency,
refused to use its power to insist on non-discrimination policies by the unions . 536 And it was a similar story when Oakland built a new central post office during the same period—not a single Black plumber, operating engineer,
sheet metal worker, iron worker, electrician, or steam- fitter was hired for construction of the federally funded government building . 537
The City of Pasadena in Southern California similarly
employed almost no African Americans in government
jobs prior to World War II . “In Pasadena they told me
they don’t hire Black teachers,” said Ruby McKnight
Williams, the first Black woman to be employed by the
city in a professional capacity in the 1940s . When Ms .

Williams was hired “I found out…that no [Black] men
were employed by the city except garbage men and two
or three men who swept City Hall . As for [Black] women, even the attendants in the restrooms at the Rose Bowl
had never been colored .” 538
Other types of government actions enforced racist and
segregationist policies on Black Californians in different parts of the state . For example, in 1970 Pasadena became the first city outside of the South under a federal court order to desegregate its schools . In its ruling on the matter, the district court concluded that the Pasadena
school district had discriminated both in its placement of students and in its allocation of teachers . As the court observed, the district’s failures to comply with its own integration policies had occurred “in connection with
the teacher assignment, hiring, and promotion policies
and practices of the District, its construction policies and practices, and its assignment of students .” 539
Some segments of the public sector like law enforcement and firefighting continued to discriminate against Black Californians . When they hired Black Californians, hos- tile work environments sometimes followed . 540 The San Francisco Fire Department, for example, had no Black
firefighters before 1955, and by 1970, when Black resi- dents made up 14 percent of the city’s population, only four of the Department’s 1,800 uniformed firefighters
were Black . 541
Public-sector employers have provided significant
opportunities to Black workers, as compared to their
private-sector counterparts—including in California .

Even still, Black workers continue to encounter barri-
ers to career advancement and higher pay . 542 As of 2018, Black workers account for 9 .8 percent of California’s
state civil service, compared to 5 .3 percent of the state’s labor force and 5 .5 percent of the population . However, that 9 .8 percent share has been disproportionately con- centrated in lower salary ranges; Black civil servants
represented 12 .6 percent of employees earning $40,000
or less but only 5 .7 percent of workers earning more
than $130,000 . 543
When Bay Area Rapid Transit system was built in 1967, no skilled Black workers were hired. When Oakland built a new central post office during the same period—not a single Black plumber, operating engineer, sheet metal worker, or other skilled laborer was hired.

354
Chapter 10 Stolen Labor and Hindered Opportunity V . Effects Today
The cumulative impacts of the federal, state, and local governments’ racial discrimination and segregation
continue to harm African Americans today . In 2019, the median Black household earned 61 cents for every dollar earned by the median white household . 544 This is a slight increase from 2016, when Black households earned 56
cents to the dollar, a figure lower than it had been in 1968, after the passage of the Civil Rights Act in 1964 . 545 As a result of their higher unemployment rate and the
persistent wage gap, African Americans experience
higher levels of poverty . 546 In 2020, 19 .8 percent of African Americans were living in poverty, compared
to 8 .3 percent of white Americans . 547 Due to a combi- nation of racism and sexism, women have always had
a higher rate of poverty than men . 548 Twelve percent of white women are impoverished, compared to 23
percent of Black women . 549 Black families are more
likely than white families to have family members
who are impoverished . 550 This has a destabilizing ef- fect during periods of emergency . A 2020 study found
that 36 percent of white families had enough savings
to cover six months of expenses, versus 14 percent of
Black families . 551 Another recent survey also found that 36 percent of Black respondents said that they had no
money at all set aside for emergencies, compared to 24
percent of white respondents . 552 Without a safety net of savings, African Americans can be more vulnerable
to upheavals in the labor market and are more likely
to experience homelessness, as discussed in Chapter
5 . During the COVID-19 pandemic, African Americans
were more likely to hold jobs that exposed them to the
novel coronavirus, and more likely to lose their jobs
at the same time . They were more likely to see their
savings shrink and more likely to not have enough to
eat . As was the case after the 2008 recession, they are experiencing the slowest recovery . 553
While African Americans have made significant advanc-
es into occupations and job categories that used to be
subject to explicit segregation, or kept Black workers at the margins, there has been a limit to this progress . In 2021, an analysis of the 50 most valuable public compa- nies demonstrated that only eight percent of “C-suite”
executives—the highest corporate leaders, usually those that report to the Chief Executive Officer—are Black . 554 At least eight companies list no Black executives among their leadership team, as of December 2021 . 555 Moreover, much of the gains that African Americans have made in
employment and wages have been offset by the inten-
sifying income inequality in the country as a whole . 556 California
The numbers are similar for California . In 2019, the
Public Policy Institute of California reported that about 17 .4 percent of Black Californians were poor or near
poor, compared to 12 .1 percent of white people . 557 In 2020, the poverty rate was 14 .6 percent among Black
Californians and 7 .9 percent among white residents . 558 Prior to the COVID-19 pandemic, Black families in
California were nearly twice as likely to be in the bot- tom tier of income distribution than would be expected
for their share of the population . 559 Factors that lead to African Americans often being first to suffer economic
downturn and last to recover also
persist in California . During the
COVID-19 pandemic, sixty-eight
percent of surveyed Black workers
in Southern California who had lost
their jobs reported that they were
still looking for work a year after the
start of the pandemic . 560
African Americans are also un-
der-represented in California’s two
major industries: Hollywood and
Silicon Valley . In Hollywood, for
example, in films released between
2015 and 2019, Black actors were less
likely to be in lead roles than white actors, and Black actors were often funneled into race-related projects,
which are typically less well funded . 561 Emerging Black actors received six leading role opportunities early in their careers, compared with nine for white actors . 562 Black talent is even more underrepresented in positions of creative control—African American directors direct-
ed six percent of films released between 2015 and 2019, African American producers produced six percent of
those films, and African American screenwriters wrote

6.5%6.5%72%
17%12%
BLACK
STATE POPULATION vs POOR
WHITE
STATE POPULATION vs POOR

CALIFORNIANS
POOR OR NEAR POOR 2019

355
Chapter 10 Stolen Labor and Hindered Opportunity four percent of those films . 563 In 2020, the Los Angeles Times conducted a study of diversity in Hollywood studios and reported that of 230 senior corporate executives, division heads, and other senior leaders in entertainment com-
panies analyzed by the Times, 10 percent were African
Americans . 564 Ninety-two percent of film industry C-suite executives were white, making the industry more homog-
enous than the energy and finance industries . 565
The disparities are worse in Silicon Valley . Although be- tween 2004 to 2014, Black college students were more
likely to major in computer science than white stu-
dents, 566 a 2018 report revealed that in large tech firms in Silicon Valley, African Americans
made up only 4 .4 percent of all em-
ployees . 1 .4 percent were executives,
2 .5 percent were managers, and 2 .9
percent were professionals . 567
A recent report also found that for
every Black individual who is a di-
rect employee of a tech company,
there are 1 .4 Black contract workers,
who generally earn 75 cents for every dollar made by a
direct employee and are far less likely to receive health benefits or paid time off . 568
VI . Conclusion
Enslavement was the nation’s original disregard for
Black lives and theft of Black labor . Slavery persisted for more than 200 years, and when it formally ended, the
nation found new ways, from the Black Codes to Jim
Crow, to keep African Americans tethered to the lowest
rungs of work . Discrimination, exclusion, and devalu-
ation never ceased . For more than 150 years since the
formal end of slavery, African Americans have been
denied opportunity and pathways to higher wages and
been shunted into the lowest paying, least protected,
and oft times most dangerous work, or they have been
denied work altogether .

The few instances of affirmative effort to remedy or at least neutralize discrimination were inadequate and
short-lived . Severe employment and wage disparities
and attendant socioeconomic gaps never closed be-
cause the root causes of discrimination, exclusion, and subjugation were never addressed and have been sanc-
tioned by the government and allowed to persist and
entrench . Centuries of government-supported and gov-
ernment-protected racism have produced a labor market
that is so solidly and structurally anti-Black that it can now stand on its own . It cannot and will not come undone
without an affirmative dismantling and concentrated in- vestment in creating opportunity for full participation by African Americans and full valuation of their work .

A 2018 report revealed that in large tech firms in Silicon Valley, African Americans made up only 4.4 percent of all employees.

1.4 percent were executives, 2.5 percent were managers, and 2.9 percent were professionals.

356
Chapter 10 Stolen Labor and Hindered Opportunity Endnotes
1 Reskin, The Race Discrimination System
(2012) 38 Ann . Rev . Sociology 17, 21 .
2 See, e .g ., Charles & Guryan, Studying
Discrimination: Fundamental
Challenges and Recent Progress
(2011) 3 Ann . Rev . Economics 479;
Fryer et al ., Racial Disparities in
Job Finding and Offered Wages
(2013) 56 J .L . & Econ . 633, 670 .
3 Shrider et al ., U .S . Census Bur ., Income
and Poverty in the United States: 2020
(Sept . 2021) p . 13 (as of Apr . 7, 2022) .
4 Kurt, Corporate Leadership by Race,
Investopedia (Feb . 28, 2022)
(as of Apr . 7, 2022) .
5 Deloitte, Fortune 500 Boards Still Decades
Away from Representation Parallel to
the Presence of Women and Minorities
in the US Population, Deloitte (June
8, 2021) (as of Apr . 7, 2022) .
6 Trotter, Workers on Arrival: Black
Labor and the Making of America (2019)
pp . xvi, xx-xxi; see also California
Task Force to Study and Develop
Reparation Proposals for African
Americans (October 13, 2021) Testimony
of Jacqueline Jones, (as of Apr . 7, 2022)
(Jones Testimony) citing Berry, The
Price for their Pound of Flesh: The
Value of the Enslaved, from Womb to
Grave, in the Building of a Nation (2017);
Baptist, The Half has Never Been Told:

Slavery and the Making of American
Capitalism (2016); Beckert, Empire
of Cotton: A Global History (2015);
Beckert & Rockman, edits ., Slavery’s
Capitalism: A New History of American
Economic Development (2018) .
7 Trotter, Workers on Arrival, supra, at fn .
6, p . xvi; Jones Testimony, supra, at f
8 Jones Testimony, supra, at fn . 6, citing
White, Ar’n’t I a Woman? Female
Slaves in the Plantation South (1985);
Feinstein, When Rape was Legal: The
Untold History of Sexual Violence
during Slavery (2019); Morgan,
Laboring Women: Reproduction and
Gender in New World Slavery (2004) .
9 See Solomon et al ., Center for Am .

Progress, Systematic Inequality
and Economic Opportunity (August
2019) p . 2 (as of Apr . 8, 2022) .
10 Stelzner & Beckert, Wash . Center for
Equitable Growth, The Contribution of
Enslaved Workers to Output and Growth
in the Antebellum United States (June
24, 2021) p . 2 (as of Apr . 8, 2022) .
11 See Einhorn, American Taxation,
American Slavery (2006); Jones
Testimony, supra, at fn . 6; Finkelman, The
American Suppression of the African Slavte
Trade: Lessons on Legal Change, Social Policy,
and Legislation (2015) 42 Akron L . Rev . 431,
434; Sawers, The Poll Tax Before Jim Crow
(2017) 57 Am . J . Legal Hist . 166, 166-67 .
12 Jones, American Work: Four Centuries
of Black and White Labor
(1998) pp . 258-59 .
13 Ibid .
14 Douglass, Narrative of the Life of
Frederick Douglass: An American
Slave (1968 ed .) pp . 117-18 .
15 Jones, American Work, supra, at fn . 12,
pp . 259-60 .
16 Id. at p. 260.
17 Ibid .
18 Ibid .
19 Smith, California’s Last Slave Case, N .Y .

Times (Mar . 5, 2014) .
20 Wilkerson, The Warmth of Other Suns:

The Epic Story of America’s Great
Migration (2011) p . 233; De Graaf &
Taylor, Introduction: African Americans
in California History, California in African
American History in Seeking El Dorado:

African Americans in California (De
Graaf et al ., edits . 2001) p . 9; Hudson,
West of Jim Crow: The Fight Against
California’s Color Line (2020) pp . 2
21 Stats. 1852, ch. 33, § 1, pp . 67-68 (as of
Apr . 8, 2021); Wills, Slavery in a Free
State: The Case of California, JSTOR Daily
(Feb . 25, 2021) (as of Apr . 8, 2022) .
22 Wilkerson, The Warmth of Other Suns,
supra, at fn . 20, p . 233; Hudson, West
of Jim Crow, supra, at fn . 20, pp 21-22 .
23Wilkerson, The Warmth of Other
Suns, supra, at fn . 20, p . 233 . Ibid .
24 Taylor, African American Men in the
American West, 1528-1990 (2000)
569 African Am . Male in Am .

Life & Thought 102, 105 .
25 Ibid
26 Wills, Slavery in a Free State, supra, at fn .
21; Hudson, West of Jim Crow,
supra, at fn . 20, p . 23 .
27 Smith, Pacific Bound: California’s 1852
Fugitive Slave Law (Jan . 6, 2014)
Black Past (as of Apr . 8, 2022) .
28 Ibid .
29 Ibid .
30 Baradaran, The Color of Money: Black
Banks and the Racial Wealth
Gap (2017) pp . 18-22 .
31 See Jones, The Dispossessed: America’s
Underclasses from the Civil
War to the Present (1992) .
32 Wilkerson, The Warmth of Other Suns,
supra, at fn . 20, pp . 332-35; Jones,
Labor of Love, Labor of Sorrow: Black
Women, Work, and the Family from
Slavery to the Present (2009) pp .
131-67 (discussing limited paid work
options for Black women and atten-
dant poor conditions and pay) .
33 See Jones, American Work, supra, at fn .
12, p . 342; see also Perea, The Echoes
of Slavery: Recognizing the Racist Origins
of the Agricultural and Domestic Worker
Exclusion from the National Labor Relations
Act (2011) 72 Ohio State L .J . 95 .
34 Perea, The Echoes of Slavery, supra, at
fn . 33; Katznelson, Fear Itself: The New
Deal and the Origins of Our Time (2013)
p . 163; Baradaran, The Color of Money,
supra, at fn . 30, p . 101; Reich, A Working
People: A History of African American
Workers Since Emancipation (2013) p . 91 .
35 Freedmen’s Bureau Bill (Mar . 3, 1865)
Chap . XC, § 2, 13 Stat . 507 .
36 Reich, A Working People, supra, at fn .
34, p . 13 .
37 See Foner, Reconstruction: America’s
Unfinished Revolution, 1863-1877
(2011) pp . 68-69; Gates, Jr ., The Truth
Behind “40 Acres and a Mule” African

357
Chapter 10 Stolen Labor and Hindered Opportunity Am . Hist . Blog (2013) (as of Apr . 10,
2022); see also Reich, A Working
People, supra, at fn . 34, p . 11 (discussing
freedmen’s view of land ownership
as key to economic autonomy) .
38 Baradaran, The Color of Money, supra,
at fn . 30, p . 16, citing Fleming,
“Forty Acres and a Mule” (1906)
182 North Am . Rev . 721, 729 .
39 Reich, A Working People, supra, at fn .
34, pp . 11-12 .
40 Id . at p . 12 .
41 Id. at pp . 13-15 .
42 Id. at p . 12 .
43 Baradaran, The Color of Money, supra,
at fn . 30, p . 19; Reich, A Working
People, supra, at fn . 34, p . 10
44 Baradaran, The Color of Money, supra, at
fn. 30, p. 19.
45 Id. at p . 16, quoting Egerton, Wars of
Reconstruction: The Brief,
Violent History of America’s Most
Progressive Era (2014) p . 99 .
46 Baradaran, The Color of Money, supra,
at fn . 30, p . 17 .
47 Trefousse, Andrew Johnson: A
Biography (1989) p . 236 .
48 Baradaran, The Color of Money, supra,
at fn . 30, p . 17 .
49 Reich, A Working People, supra, at fn .
34, p . 15 .
50 Id. at pp . 13-15; see also Baradaran, The
Color of Money, supra, at fn . 30, p . 18
(discussing President Johnson’s view
that capitalism, free trade, and the law
of supply and demand would suffice
to allow freedmen to secure remu-
neration and acquire land without
the help of the state, even as the
government was aiding private in-
dustry and after the government had
given away land to white settlers) .
51 Reich, A Working People, supra, at fn .
34, p . 14 .
52 Jones Testimony, supra, at fn . 6; Reich,
A Working People, supra, at fn . 34, p . 15 .
53 Trotter, Workers on Arrival, supra, at
fn . 6, p . 56, quoting a
northern commander stationed
in Columbia, South Carolina .
54 Ibid .
55 Ibid .
56 Reich, A Working People, supra, at fn .
34, p . 15 .
57 Jones, Labor of Love, supra, at fn . 32,
pp . 54-55 .
58 Id. at p . 62 .
59 History .com, Freedmen’s Bureau (Jun . 1,
2010, updated Oct . 3, 2018) .
60 Ibid .
61 Baradaran, The Color of Money, supra,
at fn . 30, pp . 18-21 .
62 Blackmon, Slavery by Another Name:

The Re-Enslavement of African
Americans from the Civil War to
World War II (2008) pp . 1, 53 .
63 Ibid .
64 Id. at p . 53 .
65 Id. at pp . 53-57 .
66 Schmidt, Principle and Prejudice: The
Supreme Court and Race in the Progressive
Era. Part 2: The “Peonage Cases” (1982)
82 Colum . L . Rev . 646, 651 .
67 Id. at p . 650; Reich, A Working People,
supra, at fn . 34, p . 19 .
68 Schmidt, Principle and Prejudice, supra,
at fn . 66, p . 651 .
69 Id. at p . 650; Reich, A Working People,
supra, at fn . 34, p . 19 . For an
in-depth discussion of appren-
ticeship, please see Chapter 8 .
70 Wilkerson, The Warmth of Other Suns,
supra, at fn . 20, p . 217 .
71 Bernstein, The Law and Economics of
Post-Civil War Restrictions on Interstate
Migration by African Americans (1998)
76 Tex . L . Rev . 781, 781-82 .
72 Id. at pp . 783, 786-87 .
73 Id. at 792-800 .
74 Williams v. Fears (1900) 179 U .S . 270;
Bernstein, The Law and Economics
of Post-Civil War Restrictions on
Interstate Migration by African
Americans, supra, at fn . 71, p . 801 .
75 Castel, The Presidency of Andrew
Johnson (1979) p . 71; Franklin, The
Civil Rights Act of 1866 Revisited (1989)
41 Hastings L .J . 1135, 1135-36 .
76 Civil Rights Act of 1866 (Apr . 9, 1866)
Chap . XXXI, 14 Stat . 27; see also
Kaczorowski, Enforcement Provisions of
the Civil Rights Act of 1866: A Legislative
History in Light of Runyon v. McCrary,
The Review Essay and Comments:

Reconstructing Reconstruction (1988-
89) 98 Yale L . J . 565, 579-90 .
77 Baradaran, The Color of Money, supra,
at fn . 30, p . 37 .
78 Civil Rights Cases (1883) 109 U .S . 3 (1883) .
79 See, e .g ., Saidel-Goley & Singer, Things
Invisible to See: State Action & Private
Property (2018) 5 Tex . A&M L . Rev . 439,
452; Engelman Lado, A Question of
Justice: African-American Legal Perspectives
on the 1883 Civil Rights Cases (1995) 70
Chicago-Kent L . Rev . 1123, 1174-75 .
80 See Equal Justice Initiative, Lynching in
America: Confronting the Legacy of
Racial Terror (3d ed ., 2017), pp . 5, 8
81 Id. at pp . 12, 15-17 .
82 Id. at pp . 16-17
83 Trotter, Workers on Arrival, supra, at
fn . 6, p . 56 .
84 Id . at pp . 56-57 .
85 Reich, A Working People, supra, at fn .
34, p . 58 .
86 Baradaran, The Color of Money, supra,
at fn . 30, pp . 37-38; Plessy v.

Ferguson (1896) 163 U .S . 537 .
87 See, e .g ., Wilkerson, The Warmth of
Other Suns, supra, at fn . 20, pp . 38-
45; Wilkerson, Caste: The Origins of
Our Discontents (2020) pp . 116-17 .
88 Baradaran, The Color of Money, supra,
at fn . 30, p . 38 .
89 Wilkerson, The Warmth of Other Suns,
supra, at fn . 20, p . 41 .
90 Id. at p . 44; Jones Testimony, supra, at f
91 Jones Testimony, supra, at fn. 6
92 Ibid .
93 Wilkerson, Caste, supra, at fn . 88, pp .
132-34 .

358
Chapter 10 Stolen Labor and Hindered Opportunity 94 Perea, The Echoes of Slavery, supra, at fn .
33, p . 101 .
95 Jones, Labor of Love, supra, at fn . 32, p .
61; see also Slavery by Another Name:

Sharecropping (Public Broadcasting
Service Movie 2012) .
96 Perea, The Echoes of Slavery, supra, at fn .
33, p . 101 .
97 Ibid .
98 Ibid .; see also Schmidt, Principle and
Prejudice, supra, at fn . 66, pp . 654-60 .
99 Wilkerson, The Warmth of Other
Suns, supra, at fn . 20, pp . 38-39 .
100 Id. at p . 45 .
101 Id. at p . 53 .
102 Id . at p . 54 .
103 Ibid .
104 Id. at p . 418 .
105 Ibid .
106 Ibid .
107 Ibid .
108 Jones, Labor of Love, supra, at fn . 32,
pp . 74, 154-56 .
109 Jones Testimony, supra, at f
110 Hine, Black Women in White: Racial
Conflict and Cooperation in the Nursing
Profession, 1890-1950 (1989); Fairclough,
A Class of their Own: Black Teachers
in the Segregated South (2007) .
111 Jones Testimony, supra, at f
112 Ibid .
113 Trotter, Workers on Arrival, supra, at
fn . 6, pp . 91-92 .
114 Jones Testimony, supra, at fn . 6, Labor
of Love, supra, at fn . 32, pp . 166-67,
205-07 (describing exploitative con-
ditions of long hours and grueling
domestic work for little pay) .
115 Wilkerson, The Warmth of Other
Suns, supra, at fn . 20, p . 333 .
116 Id . at p . 334 .
117 Welch, Black Litigants in the
Antebellum American South
(2018) pp . 64-81 .
118 Avins, The Right to be a Witness and the
Fourteenth Amendment (1966)
31 Mo . L . Rev . 471, 473-74 .
119 Hoag, An Unbroken Thread: African
American Exclusion from Jury Service, Past
and Present (2020) 81 La . L . Rev . 55, 56-57;
see also Forman, Juries and Race in the
Nineteenth Century (2004) 113 Yale L .J . 895 .
120 Hoag, An Unbroken Thread, supra, at fn .
120, at pp . 58-59 .
121 Strauder v. West Virginia, 100 U .S . 303
(1880); Hoag, An Unbroken Thread,
supra, at fn . 120, pp . 61-62 .
122 See, e .g ., Higginbotham, Racism in
American and South African Courts:

Similarities and Differences (1990)
65 NYU L . Rev . 479, 521-45 .
123 Lewan & Barclay, When They Steal Your
Land, They Steal Your Future, LA Times
(Dec . 1, 2001) (as of Apr . 8, 2022) .
124 Ibid .
125 Ibid .
126 Ibid .
127 See Sternberg Greene, Race, Class, and
Access to Civil Justice (2016) 101
Iowa L .R . 1263, 1268
128 Ibid .; see also Myrick et al ., Race and
Representation: Racial Disparities in
Legal Representation for Employment
Civil Rights Plaintiffs (2012) 15 N .Y .U . J .

Legislation & Pub . Policy 705, 751-52 .
129 Sternberg Greene, Race, Class, and
Access to Civil Justice, supra, at
fn . 128, pp . 1268, 1275-79 .
130 Myrick et al ., Race and Representation,
supra, at fn . 129, p . 722 .
131 Id. at p . 724 .
132 Green Coleman, Disrupting the
Discrimination Narrative: An Argument
for Wage and Hour Laws’ Inclusion in
Antisubordination Advocacy (2018) 14
Stanford J . Civ . Rights & Civ . Liberties
49, 75-76; Green Coleman, Rendered
Invisible: African American Low-Wage
Workers and the Workplace Exploitation
Paradigm (2016) 60 Howard L .J . 61, 64 .
133 Myrick et al ., Race and Representation,
supra, at fn . 129, p . 707 .
134 Blasi & Doherty, UCLA-RAND Center
for L . & Pub . Policy, California
Employment Discrimination Law and
Its Enforcement: The Fair Employment
Housing Act at 50 (2010) p . 12 .
135 Eyer, That’s Not Discrimination: American
Beliefs and the Limits of Anti-Discrimination
Law (2012) 96 Minnesota L .R . 1275, 1276 .
136 Myrick et al ., Race and Representation,
supra, at fn . 129, pp . 707-08 .
137 Wilkerson, The Warmth of Other
Suns, supra, at fn . 20, p . 317 .
138 Jones, American Work, supra, at fn . 12,
pp . 294-96, 305-15 .
139 Reedy, Brief History of the American
Labor Movement (1951) p . 1 .
140 Id. at p . 3 .
141 Id. at p . 29 .
142 Id. at p . 30 .
143 Jones, American Work, supra, at fn . 12,
pp . 213, 216, 221-22, 248-53 .
144 Wilkerson, The Warmth of Other
Suns, supra, at fn . 20, p . 316 .
145 Jones, Labor of Love, supra, at fn . 32,
p . 128 (providing example of 1897 pro-
test of the hiring of two Black female
spinners at an Atlanta textile mill,
where union staged a walk-out and the
company fired the two Black women) .
146 History .com, Labor
Movement (Mar . 31, 2020)
147 Cassedy, African Americans and the
American Labor Movement (Summer
1997) Prologue Magazine
148 Ibid .
149 Rothstein, The Color of Law: A
Forgotten History of How our
Government Segregated America
(2017) pp . 155-56, 158 .
150 Id. at p . 156 .
151 Ibid .
152 Reich, A Working People, supra, at fn .
34, pp . 58-59 .
153 Wilkerson, The Warmth of Other
Suns, supra, at fn . 20, p . 317 .
154 Kersten, Labor’s Home Front: The
American Federation of Labor During
World War II (2006) p . 77; Greene, Pure

359
Chapter 10 Stolen Labor and Hindered Opportunity and Simple Politics: The American
Federation of Labor and Political
Activism, 1881-1917 (2006) p . 19 .
155 Greene, Pure and Simple Politics,
supra, at fn . 155, p . 39 .
156 Kersten, Labor’s Home Front, supra, at
fn . 155, 78 .
157 Ibid .
158 Ibid .
159 Id. at p . 79 .
160 Reich, A Working People, supra, at fn .
34, pp . 58-59 .
161 Jones Testimony, supra, at fn . 6
162 Ibid .
163 Ibid .
164 Ibid .
165 See, e .g ., Little Hoover Com ., Jobs for
Californians: Strategies to Ease Occupational
Licensing Barriers (Oct . 2016) p . 5 (as
of Apr . 29, 2022); Dept . Treas . Off .

Economic Policy et al ., Occupational
Licensing: A Framework for Policymakers
(Jul . 2015) p . 6 (as of Apr . 29, 2022) .
166 Freeman, The Effect of Occupational
Licensure on Black Occupational
Attainment in Occupational Licensure
and Regulation (Rottenberg edit .,
1980) pp . 165-66; Dept . Treas . Off .

Economic Policy et al ., Occupational
Licensing, supra, at fn . 166, p . 41
(noting that “licensing policy falls in
the purview of individual States”) .
167 Bernstein, Licensing Laws: A Historical
Example of the Use of Government Regulatory
Power Against African-Americans (1994)
31 San Diego L . Rev . 89, 90 .
168 Klein et al ., Was Occupational Licensing
Good for Minorities? A Critique of Marc
Law and Mindy Marks (2012) 9 Econ J .

Watch 210, 222-23, citing Williams, The
State Against Blacks (1982) pp . 90-91 .
169 Freeman, The Effect of Occupational
Licensure on Black Occupational
Attainment, supra, at fn . 167, p . 166,
quoting Greene & Woodson, The
Negro Wage Force (1969) p . 192 .
170 Bernstein, Licensing Laws, supra, at fn .
168, p . 94-97 .
171 Id. at p . 94 .
172 Id. at p . 94, fn . 29, citing Bloch, Craft
Unions and the Negro in Historical Perspective
(1958) 43 J . Negro Hist . 10, 23 .
173 Ibid ., citing Williams, The State
Against Blacks (1982) p . 94-95 .
174 See generally Bernstein, Licensing Laws,
supra, at fn . 168 (describing the efforts to
exclude Black workers from professions
including medicine and barbering);
Freeman, The Effect of Occupational
Licensure on Black Occupational Attainment,
supra, at fn . 167, p . 166 (describing the
efforts in Georgia to exclude Black
workers from becoming firemen on
locomotives by way of licensure);
Crawford & Das, D .C . Fiscal Policy Inst .,
Black Workers Matter: How The District’s
History of Exploitation & Discrimination
Continues to Harm Black Workers (2020)
p . 3 (as of Apr . 9, 2022) (describing
occupational licensing bans written
into Black Codes that prevented Black
workers from working in any trade
other than driving carts or carriages) .
175 Bernstein, Licensing Laws, supra, at fn .
168, p . 92 (noting that “lower courts
universally accepted the gen-
eral proposition that licensing
statutes were constitutional”)
176 Id. at p . 97 .
177 Id. at pp . 96-97 .
178 Id. at p . 97 .
179 Id. at p . 98 .
180 Williams, Race and Economics: How
Much Can Be Blamed on Discrimination
(2013) p . 94, citing Shimberg et al .,
Occupational Licensing (1973) pp . 112-13 .
181 Bernstein, Licensing Laws, supra, at fn .
168, p . 98 .
182 U .S . Bur . Lab . Statistics, Labor Force
Statistics from the Current Population
Survey (2021) (as of Apr . 9, 2022) .
183 Decker, Occupational Licensing as a
Barrier for People with Criminal Records:

Proposals to Improve Anti-Discrimination
Law to Address Adverse Employment Impacts
from the Criminal Legal System (2021)
49 Fordham Urban L .J . 189, 197 .
184 Ibid .
185 See Dept . Treas . Off . Economic Policy
et al ., Occupational Licensing, supra, at
fn . 166, pp . 19-22; Decker, Occupational
Licensing, supra, at fn . 184, p . 197 .
186 See, e .g ., Equal Employment
Opportunity Commission, Enforcement
Guidance on the Consideration of Arrest
and Conviction Records in Employment
Decisions under Title VII of the Civil
Rights Act (2012) pt . V(A)(2) .
187 For example, while people with crimi-
nal records are half as likely to get
a callback to get an interview than
those without a record, Black men
with records are one-third as like-
ly to get a callback as those without
records . Natividad Rodriguez &
Avery, Nat . Employment L . Project,
Unlicensed & Untapped: Removing
Barriers to State Occupational Licenses
for People with Records (2016) p . 8 .
188 Id. at pp . 1, 5 fn . 12, 10 .
189 Id. at pp . 1, 5 fn . 10, 14
190 Petersilia, When Prisoners Come
Home: Parole and Prisoner
Reentry (2003) p . 114 .
191 Ewald, Barbers, Caregivers, and the
“Disciplinary Subject”: Occupational
Licensure for People with Criminal Justice
Backgrounds in the United States (2019)
46 Fordham Urban L .J . 719, 733
192 See generally Alexander, The New Jim
Crow: Mass Incarceration in the
Age of Colorblindness (2012 ed .)
pp . 140-177; Natividad Rodriguez
& Avery, Unlicensed & Untapped,
supra, at fn . 188; Dept . Treas . Off .

Economic Policy et al ., Occupational
Licensing, supra, at fn . 166, pp . 35-37 .
193 Nerbovig, License to Clip (Jul . 10, 2018)
The Marshall Project; see also Love &
Schlussel, Collateral Consequences
Resource Center, From Reentry
to Reintegration: Criminal Records
Reform in 2021 (2022) pp . 8-11 (de-
scribing legislative efforts in 2021
to reform licensure schemes) .
194 A search of the National Inventory of
Collateral Consequences of Conviction
database for “Business licensure and
participation” in the “Consequence

360
Chapter 10 Stolen Labor and Hindered Opportunity Type” field yielded 12,989 consequenc-
es . See Nat . Reentry Resource Center,
Nat. Inventory of Collateral Consequences
of Conviction (as of Apr . 9, 2022)
195 Jones, American Work, supra, at fn . 12,
p . 319 .
196 Trotter, Workers on Arrival, supra, at
fn . 6, p . 78 . Adjusting for the higher
cost of living in the North, “increas-
es in migrant earnings ranged from
a low of about 56% to a possi-
ble high of 130 percent .” Ibid .
197 Ibid .
198 Id. at p . 86 .
199 Id. at pp . 86-87 .
200 Id. at p . 88 .
201 Ibid .
202 Thomas, Life for Us is What We Make
it: Building Black Community in
Detroit, 1915-1945 (1992) pp . 106-107 .
203 Ibid .
204 Ibid .
205 Jones, American Work, supra, at fn . 12,
p . 367 .
206 Geschwender, Class, Race, & Worker
Insurgency: The League of
Revolutionary Black Workers (1977) p . 91 .
207 California Task Force to Study and
Develop Reparation Proposals for
African Americans (October 13, 2021)
Testimony of William Spriggs, (as of
Apr . 7, 2022) (Spriggs Testimony
208 U .S . Bur . Labor Statistics, Consumer
Price Index Inflation Calculator (com-
paring Jan . 1950 dollars with Jan .
2022 dollars) (as of Apr . 9, 2022) .
209 Spriggs .Testimony, supra, at fn . 207 .
210Jones Testimony, supra, at fn . 6
211 Stasch, The Creation and Destruction of
the Great American Middle Class
(1930-2010) (2018) pp . 26-27 .
212 Baradaran, The Color of Money, supra,
at fn . 30, p . 101 .
213 Walker & Brechin, The Living New Deal:

The Unsung Benefits of the New Deal for the
United States and California, IRLE Working
Paper No . 220-10 (2010) Inst . Research
on Labor & Employment, pp . 23-28 .
214 Id. at pp . 15-17 .
215 Baradaran, The Color of Money, supra,
at fn . 30, p . 101; Perea, The Echoes of
Slavery, supra, at fn . 33, pp . 102-03 .
216 Perea, The Echoes of Slavery, supra, at fn .
33, pp . 103-04; Jones
Testimony, supra, at f
217 Perea, The Echoes of Slavery, supra, at fn .
33, pp . 102-03; 120-21 .
218 Jones Testimony, supra, at fn . 6
219 Jones Testimony, supra, at f
220 See, e .g ., DeWitt, The Decision to Exclude
Agricultural and Domestic Workers
from the Social Security Act (2010)
70 Soc . Sec . Bulletin 4 .
221 Perea, The Echoes of Slavery, supra, at fn .
33, p . 104 .
222 Jones Testimony, supra, at fn . 6
223 Ibid .
224 Social Welfare History Project, The
National Industrial Recovery Act of
1933 (2011) Va . Commonwealth
Univ . (as of Apr . 9, 2022) .
225 Perea, The Echoes of Slavery, supra, at fn .
33, p . 104 .
226 Id. at p . 106 .
227 Ibid .
228 Ibid .
229 Dubal, The New Racial Wage Code, UC
Hastings Research Paper
Forthcoming (May 28, 2021) Harvard
L . & Policy Rev ., pp . 15-16 .
230 Perea, The Echoes of Slavery, supra, at
fn . 33, p . 107, citing Caldwell, What
the NRA is Doing to the Race!, Chi .

Defender (May 26, 1934) p . 10 .
231 Rothstein, The Color of Law, supra, at
fn . 150, p . 158 .
232 Id . at 155-56, 158-59 .
233 Id . at 158-61.
234 Walker & Brechin, The Living New Deal,
supra, at fn . 214, p . 33 .
235 McNicholas et al ., Economic Policy
Inst ., Why Unions Are Good for Workers—
Especially in a Crisis Like COVID-19
(Aug . 25, 2020) (as of Apr . 9, 2022) .
236 Ibid .
237 Ibid .
238 Perea, The Echoes of Slavery, supra, at
fn . 33, pp . 123-24 .
239 Jones, American Work, supra, at fn . 12,
p . 343 .
240 Perea, The Echoes of Slavery, supra, at
fn . 33, p . 122 .
241 Rothstein, The Color of Law, supra, at
fn . 150, p . 158 .
242 Ibid .
243 Steele v. Louisville & Nashville R.R. Co.
(1944) 323 U .S . 192; Meltzer, The
National Labor Relations Act and Racial
Discrimination: The More Remedies
the Better? (1974) 42 U . Chi . L . Rev .
1, 4; Jones, Race, Economic Class, and
Employment Opportunity (2009) 72 L .
& Contemporary Problems 57, 78 .
244 Independent Metal Workers Local 1
(Hughes Tool Co.) (1964) 147 N .L .R .B .
1573; Meltzer, The National Labor
Relations Act and Racial Discrimination,
supra, at fn . 244, pp . 5-6 .
245 Emporium Capwell Co. v. Western
Addition Community Organization
(1975) 420 U .S . 50; Jones, Race,
Economic Class, and Employment
Opportunity, supra, at fn . 244, p . 78 .
246 Rothstein, The Color of Law, supra, at
fn . 150, p . 161 .
247 Section 210(b) of the Social Security
Act excludes agricultural service and
domestic labor in a private home from
old-age benefits; and Section 907(c)
defines “employment” to exclude agri-
cultural labor and domestic service in
a private home for purposes of unem-
ployment benefits . See Social Security Act
(Aug . 14, 1935) Chap . 531, tit . II, § 210(b)
(1)-(2), 49 Stat . 620, 625; Chap . 531, tit .

IX, § 907(c)(1)-(2), 49 Stat . 620, 643 .
248 See DeWitt, The Decision to Exclude
Agricultural and Domestic Workers from
the Social Security Act, supra, at fn . 221 .
249 Martin & Weaver, Social Security: A
Program and Policy History
(2005) 66 Soc . Sec . Bull .
250 Perea, The Echoes of Slavery, supra, at
fn . 33, pp . 111-12 .

361
Chapter 10 Stolen Labor and Hindered Opportunity 251 Economic Security Act, Hearings before
House Com. on Ways & Means on
H.R. No. 4120, 74th Cong ., 1st
Sess ., p . 798 (1935), testimony of
Charles H . Houston, NAACP .
252 Economic Security Act Hearings,
supra, at fn . 252, p . 602, testimony
of George Haynes, Federal Council
of Churches of Christ in America .
253 Economic Security Act, Hearings before
Sen. Com. on Finance on Sen. No. 1130, 74th
Cong ., 1st Sess ., p . 646 (1935), state-
ment of Charles H . Houston, NAACP .
254 Dubal, The New Racial Wage Code, supra,
at fn . 230, p . 18 .
255 See, e .g ., Walters & Briggs, The Family
Economy, Child Labor, and Schooling:

Evidence from the Early Twentieth-
Century South (1993) 58 Am .

Sociological Rev . 163, 164 .
256 82 Cong . Rec . 1404 (1937)
257 82 Cong . Rec . App’x 442 (1937) .
258 Perea, The Echoes of Slavery, supra, at fn .
33, p . 117 .
259 Dubal, The New Racial Wage Code, supra,
at fn . 230, p . 18 .
260 Li, Economic Security & Opportunity
Initiative, Georgetown L . Center on
Poverty & Inequality, A Civil Rights
Issue: The Tipped Minimum Wage &
Working People of Color (2018) p . 1 .
261 Ibid .
262 Ibid .
263 Ibid .
264 Ibid .
265 Ibid .
266 Ibid . See also U .S . Dept . Labor,
Minimum Wages for Tipped Employees
(Jan . 1, 2022) (as of Apr . 9, 2022)
267 See U .S . Dept . Labor, Tips
(as of Apr . 9, 2022) .
268 Li, A Civil Rights Issue, supra, at fn . 261,
p . 2 .
269 Ibid
270 Deeben, Family Experiences and New
Deal Relief: The Correspondence Files of the
Federal Emergency Relief Administration,
1933–1936 (Fall 2012) Prologue Magazine .
271 Rothstein, The Color of Law, supra, at
fn . 150, p . 156 .
272 Baradaran, The Color of Money, supra,
p . 102, quoting Katznelson, When
Affirmative Action Was White: An
Untold History of Racial Inequality in
Twentieth Century America (2005) p . 37 .
273 Jones, Labor of Love, supra, at fn . 32,
p . 182
274 Ibid .
275 Id. at p . 218 .
276 Id. at pp . 219-220 .
277 Hoak, The Men in Green: African
Americans and the Civilian Conservation
Corps, 1933-1942, William &
Mary Theses, Dissertations, &
Master Projects (2002) p . 2 .
278 Ibid .; see also Rothstein, The Color of
Law, supra, at fn . 150, p . 157 .
279 Hoak, The Men in Green, supra, at fn .
278, pp . 14-15 .
280 Reuters, Factbox: Largest U.S. Electric
Companies by Megawatts,
Customers (April 29, 2014) .
281 Rothstein, The Color of Law, supra, at
fn . 150, pp . 156 .
282 Ibid .
283 Perea, The Echoes of Slavery, supra, at
fn . 33, p . 107
284 Linder, Farm Workers and the Fair Labor
Standards Act: Racial Discrimination in the
New Deal (1986) 65 Tex . L . Rev . 1335, 1361 .
285 Perea, The Echoes of Slavery, supra, at fn .
33, p . 108 .
286 Ibid .
287 Ibid .
288 Ibid .
289 Id. at p . 107, citing Caldwell, What the
NRA is Doing to the Race!, Chi .

Defender (May 26, 1934) p . 10 .
290 Trotter, Workers on Arrival, supra, at
fn . 6, pp . 134-35 .
291 Ibid .
292 Jones, American Work, supra, at fn . 12,
p . 351; March on Washington for Jobs
and Freedom, Stanford Martin Luther
King, Jr ., Research & Education
Inst . (as of Apr . 23, 2022) .
293 Trotter, Workers on Arrival, supra, at
fn . 6, p . 135 .
294 Engstrom, The Lost Origins of American
Fair Employment Law: Regulatory
Choice and the Making of Modern Civil
Rights, 1943-1972 (2011) 63 Stan . L .Rev .
1071, 1073; Rothstein, The Color
of Law, supra, at fn . 150, p . 162 .
295 Trotter, Workers on Arrival, supra, at
fn . 6, p . 136 .
296 Ibid .
297 Ibid .
298 Chamberlain, Victory at Home:

Manpower and Race in the American
South during World War II (2003) p . 57 .
299 Jones, American Work, supra, at fn . 12,
p . 354 .
300 42 U .S .C . § 2000e, et . seq .
301 42 U .S .C . § 2000e-2(a) . The statute
also prohibits discrimination by
employment agencies, labor orga-
nizations, and training programs .
42 U .S .C . § 2000e-2(b)-(d) .
302 Henson, Purposes of Title VII (2019) 33
Notre Dame J .L ., Ethics , and
Pub . Pol’y 221, p . 233, quoting
110 Cong . Rec . 7213 (1964) .
303 Id. at pp . 233-34 .
304 Id. at pp . 233-34 .
305 Comment, The Inevitable Interplay of
Title VII and the National Labor Relations
Act: A New Role for the NLRB (1974)
123 U . Pa . L . Rev . 158, 162-63 .
306 Int'l Bhd. of Teamsters v. United States
(1977) 431 U .S . 324, 353-54 .
307 Id. at p . 335 fn . 15 .
308 Ibid .
309 42 U .S .C . § 2000e-2(k)(1)(A)(i) .
310 Griggs v. Duke Power Co. (1971) 401 U .S .
424, 425-26, 431 .
311 Id. at p . 435-36 .
312 42 U .S . Code §§ 2000e-2, 2000e-3,
2000e–5 .

362
Chapter 10 Stolen Labor and Hindered Opportunity 313 U .S . Equal Employment Opportunity
Com ., Chapter 11 Remedies
(as of Apr . 11, 2022) .
314 Barnes, Is the EEOC Protecting Workers or
Discriminatory Employers? (Sept . 4,
2019) Forbes; Jones, American Work,
supra, at fn . 12, p . 362; Linderman,
At the EEOC, harassment cases can lan-
guish for years (Apr . 9, 2018) AP News
315 Gilway, The Persistent Black-White
Unemployment Gap is Built into the Labor
Market (Sept . 28, 2020) Housing Today .
316 Jones, American Work, supra, at fn . 12,
pp . 361-62 .
317 Affirmative Action Policies Throughout
History (2022) Am . Ass’n for
Access, Equity and Diversity .
318 Jones, American Work, supra, at fn . 12,
p . 362 .
319 Menand, The Changing Meaning of
Affirmative Action (Jan . 13,
2020) The New Yorker .
320 See, e .g ., Donohue & Heckman,
Continuous Versus Episodic Change:

The Impact of Civil Rights Policy on the
Economic Status of Blacks (1991) 29 J .

Econ . Lit . 1603, 1640-41, citing Leonard,
The Impact of Affirmative Action on
Employment (1984) 2 J . Lab . Econ . 439 .
321 Menand, The Changing Meaning of
Affirmative Action, supra, at fn . 320 .
322 Chatterji, et al ., The Impact of City
Contracting Set-Asides on Black Self-
Employment and Employment (2014)
32 J . of Labor Economics 507, 510 .
323 Iheukwumere & Aka, Title VII,
Affirmative Action, and the March Toward
Color-Blind Jurisprudence (2001) 11 Temp .

Policy & Civ . Rights L . Rev . 1, 7-9 .
324Regents of Univ. of Calif. v. Bakke
(1978) 438 U .S . 265, 318-319
325 Trotter, Workers on Arrival, supra, at
fn . 6, p . 166 .
326 Id. at pp . 140-44; Jones Testimony,
supra, at fn . 6 .
327 Trotter, Workers on Arrival, supra, at
fn . 6, p . 141; Jones Testimony, supra, at f
328 Trotter, Workers on Arrival, supra, at
fn . 6, p . 141; Jones Testimony, supra, at f
329 Spieler, Racism Has Shaped Public
Transit, and It’s Riddled with Inequities
(2020) Kinder Inst . for Urban Research,
Rice University; Sánchez et al ., Moving
to Equity: Addressing Inequitable Effects of
Transportation Policies on Minorities (2003)
The Civil Rights Project: Harvard U
330 Spieler, Racism Has Shaped Public
Transit, supra, at fn . 330 .
331 Ibid .
332 Miller, When Work Moves: Job
Suburbanization and Black Employment
(2018) Nat’l Bureau of Economic
Research Working Paper Series, pp . 3-4 .
333 Trotter, Workers on Arrival, supra, at
fn . 6, p . 141 .
334 Id.
335 Reich, A Working People, supra, at fn .
34, p . 164 .
336 Trotter, Workers on Arrival, supra, at
fn . 6, p . 162 .
337 De Graaf & Taylor, Introduction in
Seeking El Dorado, supra, at fn . 20, p . 36 .
338 Ibid .
339 Jack Rosenthal, Large Suburbs
Overtaking Cities in Number of Jobs They
Provide (Oct . 15, 1972) N .Y . Times .
340 Ibid .
341 Keita Cha-Jua, The New Nadir: The
Contemporary Black Racial Formation
(2010) 40 The Black Scholar 38, 40 .
342 Ibid .
343 Id. at pp . 40-41 .
344 Lusane, Race in the Global Era:

African Americans at the
Millenium (1997) p . 12 .
345 Zessoules, Trade and Race: Effects of
NAFTA 2.0 and Other Low-Road Approaches
to Trade on Black Communities (July
18, 2019) Center for Am . Progress
346 Ibid; Rangel & Wallach, Trade
Discrimination: The Disproportionate,
Underreported Damage to U.S. Black and
Latino Workers From U.S. Trade Policies
(Jan . 8, 2021) pp . 13-15 . See Chapter
6 for discussion of the discrimina-
tion that has shaped educational
outcomes for African Americans .
347 Zessoules, Trade and Race, supra, at fn .
346; Rangel & Wallach, Trade
Discrimination, supra, at fn . 347, pp .
13-15; Scott et al ., Botched Policy
Responses to Globalization Have
Decimated Manufacturing Employment
with Often Overlooked Costs for Black,
Brown, and Other Workers of Color (Jan .
31, 2022) Economic Policy Inst
348 Scott et al ., Botched Policy Responses,
supra, at fn . 348 .
349 Ibid .
350 Zessoules, Trade and
Race, supra, at fn . 346 .
351 Rangel & Wallach, Trade Discrimination,
supra, at fn . 347, p . 14, citing Gould,
Torn Apart? The Impact of Manufacturing
Employment Decline on Black and
White Americans, CEPR Discussion
Paper No . DP12992 (2018) .
352 Overton, Black to the Future: Will Robots
Increase Racial Inequality?,
State of Black Am .
353 Jones, American Work, supra, at fn . 12,
p . 314; Jones Testimony, supra, at f
354 Quillian et al ., Meta-Analysis of Field
Experiments Shows No Change in
Racial Discrimination in Hiring Over
Time (2017) Proceedings of the Nat .

Academy of Sciences (PNAS) .
355 Ibid .
356 Bertrand & Mullainathan, Are Emily
and Greg More Employable than Lakisha
and Jamal? A Field Experiment on Labor
Market Discrimination, NBER Working
Paper No . 9873 (2003), Nat . Bur .
of Economic Research, pp . 2-4 .
357 Kang et al ., Whitened Résumés: Race and
Self-Presentation in the Labor Market (2016)
61 Admin . Science Quarterly, pp . 22-24
358 Segall, Mass Incarceration, Ex-Felon
Discrimination & Black Labor Market
Disadvantage (2011) 14 U . Pa . J . L .
& Soc . Change pp . 159-60 .
359 Shannon et al ., The Growth, Scope, and
Spatial Distribution of People With
Felony Records in the United States,
1948–2010 (2018) Demography .
360 Segall, Mass Incarceration, supra, at
fn . 359, p . 168-70 .

363
Chapter 10 Stolen Labor and Hindered Opportunity 361 Jones & Schmitt, A College Dree Is No
Guarantee (2013) Center for
Economic & Policy Research, p . 11 .
362 Agan & Starr, Ban the Box, Criminal
Records, and Statistical Discrimination:

A Field Experiment (2016) U . Mich . L . &
Econ . Research Paper Series, p . 4 .
363 See, e .g ., Fyre, Racism and Sexism
Combine to Shortchange Working Black
Women (Aug . 22, 2019) Center for Am .

Progress; Banks, Black Women’s Labor
Market History Reveals Deep-Seated Race
and Gender Discrimination (Feb . 19, 2019)
Working Economics Blog; Cohen,
Black Women Were Half as Likely to Be
Hired for State or Local Jobs Than White
Men, a Report Says (Mar . 18, 2021) N .Y .

Times; Dill & Duffy, Structural Racism
And Black Women’s Employment In The US
Health Care Sector (Feb . 2022) 41 Health
Affairs 265; Study Highlights Barriers Black
Women Face in Corporate America (Aug .
18, 2020) Philanthropy News Digest .
364 Breaking the Cycle: Overcoming
Challenges Faced by Black Boys and
Men (Nov . 19, 2020), Webinar Materials,
The Brookings Inst ., pp . 10-11, 18
365 Moss & Tilly, “Soft” Skills and Race: An
Investigation of Black Men's
Employment Problems (1996) 23
Work & Occupations, p . 260 .
366 Pager et al ., Employment Discrimination
and the Changing Landscape of Low-
Wage Labor Markets (2009) 2009 U .

Chi . Legal Forum, pp . 321-322 .
367 Darity & Mullen, From Here to
Equality: Reparations for African
Americans in the Twenty-First
Century (2020) pp . 45-46 .
368 Jones & Schmidt, A College Degree Is
No Guarantee, supra, at fn . 362, p . 1 .
369 Id. at pp . 1, 10-11 .
370 Id. at p . 11 .
371 Kitroeff, Business School Is Worth
$22,000 More If You’re White or
Asian (Jan . 7, 2016) Bloomberg .
372 Cal . Employment Development Dept .,
Labor & Workforce Dev . Agency,
California Labor Market Review,
March 2022 (as of Apr . 27, 2022) .
373 De Graaf & Taylor, Introduction in
Seeking El Dorado, supra, at fn . 20, p . 10 .
374 People v. Hall (1854) 4 Cal . 399, 403-405
(quoting civil and criminal pro-
visions barring testimony) .
375 De Graaf & Taylor, Introduction in
Seeking El Dorado, supra, at fn . 20, p .
376 Terrell, African Americans and the Gold
Rush (Feb . 2, 2021), Inside Adams,
Science, Technology & Bus .
377 See Cal . Dept . of Education, Key Points
in Black History and the Gold Rush (as
of Apr . 8, 2022); Savage, The Influence
of William Alexander Leidesdorff on
the History of California (1953) 38
J . Negro History 322, 322 .
378 A History of African Americans in
California: Industry (2004) Five Views:

An Ethnic History Site Survey for
California (as of Apr . 11, 2022) .
379 Ibid.
380 Cal . Dept . of Education, Key Points in
Black History and the Gold
Rush, supra, at fn . 378 .
381 A History of African Americans in
California: Industry, supra, at fn . 379 .
382 Negro Bar, Folsom Lake State Recreation
Area, Cal . Dept . of Parks and
Recreation (as of Apr . 11, 2022) .
383 Ibid.
384 A History of African Americans in
California: Industry, supra, at fn . 379 .
385 Ibid .
386 Ibid .
387 Ibid .
388 Ibid .
389 Ibid .
390 Loewen, Sundown Towns: A Hidden
Dimension of American
Racism (2005), p .
391 Trotter, Workers on Arrival, supra, at
fn . 6, p . 80 .
392 Ibid .
393 Reparations Task Force Meeting –
October 2021, supra, at fn . 6, testimony
of Jacqueline Jones, citing Weaver, Negro
Labor: A National Problem (1946) p, 109 .
394 Ibid .
395 Ibid .
396 Walker & Brechin, The Living New Deal,
supra, at fn . 214, p . 53 .
397 Id. at p .
398 Id. at p . 48 .
399 Ibid .
400 Loewen, Sundown Towns, supra, pp .
100, 239
401 Id. at p . 239 .
402 Labor History Timeline: California and the
United States, Cal . Assembly Com .
on Pub . Employees, Retirement
& Soc . Sec . (as of Apr . 11, 2022) .
403 Oxfam, The Best States to Work Index: A
Guide to Labor Policy in US States,
Oxfam Research Report (2018) p . 3 .
404 Assem . Bill No . 2100 (Jan . 22, 1937)
(“An act to establish a Labor Code,
thereby consolidating and revis-
ing the law relating to labor and
employment relations . . . .”) .
405 Assem. Bill No. 1066 (2015-2016 Reg .

Sess .), as filed on Sept . 12, 2016) .
406 Domestic Worker Bill of Rights (AB 241),
Calif . Dept . of Industrial Relations .
407 Sen. Bill No. 1257 (2019-
2020 Reg . Session) .
408 Broussard, In Search of the Promised
Land: African American Migration to
San Francisco, 1900-1945 in Seeking
El Dorado, supra, at fn . 20, p . 198 .
409 Reparations Task Force Meeting –
October 2021, supra, at fn . 6, testimony
of Jacqueline Jones, citing Rothstein,
The Color of Law, supra, at fn . 150, p . 5 .
410 Rothstein, The Color of Law, supra, at
fn . 150, pp . 162-66 (describing instances
of inaction by the Federal Employment
Practices Committee and disregard for
limited efforts by the Committee) .
411 Broussard, In Search of the Promised
Land in Seeking El Dorado, supra,
at fn . 20, p . 199, citations omitted .
412 Rothstein, The Color of Law, supra, at
fn . 150, p . 160 .
413 Trotter, Workers on Arrival, supra, at
fn . 6, p . 113 .

364
Chapter 10 Stolen Labor and Hindered Opportunity 414 Rothstein, The Color of Law, supra, at
fn . 150, p . 165 .
415 Leonard, In the Interest of All Races:

African Americans and Interracial
Cooperation in Los Angeles During
and After World War II in Seeking
El Dorado, supra, at fn . 20, p . 311;
Alvarez, The Power of the Zoot:

Youth Culture and Resistance
during World War II (2008) p . 20 .
416 Alvarez, The Power of the Zoot, supra,
at fn . 416, pp . 21
417 Rothstein, The Color of Law, supra, at
fn . 150, p . 162 .
418 Reparations Task Force Meeting –
October 2021, supra, at fn . 6, testimony
of Jacqueline Jones, citing Self, American
Babylon: Race and the Struggle for
Postwar Oakland (2005), pp . 54-57, 83 .
419 Ibid .
420 De Graaf & Taylor, Introduction in
Seeking El Dorado, supra, at fn . 20, p . 32 .
421 Arax & Warzmann, The King of
California: J .G . Boswell and the
Making of a Secret American
Empire (2003) p . 264 .
422 Id. at pp . 117, 161, 257, 283-84 .
423 Ibid .
424 Cal . Dept . of Fair Employment &
Housing, Legal Records and Reports
(2022) (as of Apr . 11, 2022) .
425 Cal. Gov. Code, § 12940 .
426 Ibid .; Cal . Dept . of Fair Employment
& Housing, Employment Discrimination
(2022) (as of Apr . 11, 2022) .
427 Cal . Dept . of Fair Employment &
Housing, About DFEH (2022)
(as of Apr . 11, 2022) .
428 Korber & Adkisson, Department of Fair
Employment and Housing: Underfunding
and Misguided Policies Compromise Civil
Rights Mission (Dec . 18, 2013) Cal . Sen .

Off . Oversight & Outcomes, pp . 1-2 .
429 Id. at p . 1 .
430 Id. at p . 2 .
431 Department of Fair Employment and
Housing, AllGov: California (as of Apr . 11,
2022); Cal . Dept . of Fair Employment
& Housing, Report to the Joint Legislative
Budget Committee: March 2015 (Mar . 2015)
p . 18; Cal . Dept . of Fair Employment &
Housing, 2020 Annual Report (2020), p . 11 .
432 Tierney, Affirmative Action in California:

Looking Back, Looking Forward
in Public Academe (1996) 65 J .

Negro Education 122, 126 .
433 Trotter, Workers on Arrival, supra, at
fn . 6, pp . 165-66 . In order to avoid loss of
federal funding to state or to run afoul
of the courts, Proposition 209 included
four exceptions: to keep the state or
local governments eligible to receive
money from the federal government;
to comply with a court order in force
as of the effective date of this measure
(the day after the election); to comply
with federal law or the United States
Constitution; and to meet privacy and
other considerations based on sex that
are reasonably necessary to the nor-
mal operation of public employment,
public education, or public contract-
ing . Proposition 209: Prohibition Against
Discrimination or Preferential Treatment
by State and Other Public Entities (Nov .
1996) Cal . Legislative Analyst’s Off .
434 Trotter, Workers on Arrival, supra, at
fn . 6, pp . 165-66; Proposition 209, supra,
at fn . 434; Bleemer, Affirmative Action,
Mismatch, And Economic Mobility After
California’s Proposition 209 (2020) U .C .

Berkeley, Research and Occasional
Paper Series: CSHE .10 .2020,
pp . 6-7; Cal . Const ., art . I, §
435 Oppenheimer, Color-Blindness, Racism-
Blindness, and Racism-Awareness:

Revisiting Judge Henderson’s Proposition
209 Decision (2011) 13 Berkeley J .

African Am . L . & Policy 101, 106 .
436 Sumner et al ., Proposition 209 and
Public Employment in California: Trends
in Workforce Diversity (2008) Thelton
E . Henderson Center for Soc . Justice,
Berkeley Law, pp . 5-6; Equal Opportunity:

The Evidence from California (2012)
Thelton E . Henderson Center for
Soc . Justice, Berkeley Law, p . 9 .
437 Equal Opportunity: The Evidence from
California, supra, at fn . 437, p . 9 .
438 Id. at p . 5
439 Ibid.
440 Morris et al ., Free to Compete?
Measuring the Impact of Proposition
209 on Minority Business Enterprises
(2006) Discrimination Research
Center, pp . 2, 20-21 .
441 Lohrentz, The Impact of Proposition 209
on California’s MWBEs (2015)
Equal Justice Soc ., p . 2 .
442 Conrad et al ., African Americans in
the U .S . Economy (2005) p . 3; Stoll et
al ., Why Are Black Employers More Likely
than White Employers to Hire Blacks? (2001)
Inst . For Research on Poverty, pp . 1-2 .
443 Cal . Sec . of State, California Statement
of Vote, General Election
November 3, 2020, p . 14 .
444 See Little Hoover Com ., Jobs for
Californians, supra, at fn . 166, pp . 15-16 .
445 Gurrola v. Duncan (E .D . Cal . 2021) 519 F .

Supp . 3d 732, 736, appeal pending at
Gurrola v. Duncan, Case No . 21-15414
(9th Cir .) (“[I]n 2017, 650 incarcerated
individuals assisted in suppressing
the Pocket, Tubbs, and Atlas Fires .

A .B . No . 2147 § 1(c) . In 2018, close to
800 incarcerated individuals as-
sisted with the Camp Fire in Butte
County . Id. § 1(d) . And, in 2019, over
400 incarcerated individuals helped
battle the Kincade Fire . Id. § 1(e) .”) .
446 Romo, California Bill Clears Path For Ex-
Inmates to Become Firefighters
(Sept . 11, 2020) NPR .
447 Cal . Code Regs ., tit . 22, § 100214 .3(c)
(6) (“The medical director shall deny
or revoke an EMT [certificate] if . . .
the applicant . . . [h]as been convicted
and released from incarceration for
said offense during the preceding ten
(10) years for any offense punishable
as a felony .”) EMT certification can
be denied for several other types of
criminal records as well . See generally
Cal . Code Regs ., tit . 22, § 100214 .3(c) .
448 Gurrola, supra, 519 F .Supp .3d at 736-37 .
449 Assem. Bill. No. 2138, Licensing boards:
denial of application: revocation or
suspension of licensure: criminal
conviction (2017-2018 Reg . Sess .);
Cal Bus . & Prof . Code § 7 .5 et seq

365
Chapter 10 Stolen Labor and Hindered Opportunity 450 See, e .g ., Assem. Bill 3039 – Dept. of
Social Services Occupational Licensing
- Summary . At least one non-prof-
it determined that 55 .5 percent of
its clients seeking exemptions from
the Department of Public and Social
Services were Black women who were
“hit especially hard by DSS’s restric-
tive criminal record screening rules,
given the disproportionate rate of
arrests and low-level criminal convic-
tions in communities of color .” Ibid .
451 U .S . Postal Service, Postal History:

African American Postal Workers in the
20th Century (as of Apr . 11, 2022);
Wilson and Race, President Wilson
House (as of Apr . 11, 2022) .
452 U .S . Postal Service, Postal History, supra,
at fn . 452 .
453 Ibid.; Jones, American Work, supra, at
fn . 12, p . 259 .
454 Little, How Woodrow Wilson Tried to
Reverse African American Progress
(Jul . 14, 2020) History .com .
455 U .S . Postal Service, Postal History, supra,
at fn . 452 .
456 Ibid .
457 Id. at fn . 3 .
458 William Howard Taft, Inaugural Address
(March 4, 1909) U . of Cal .,
American Presidency Project .
459 Little, How Woodrow Wilson Tried to
Reverse African American Progress, supra, at
fn . 455; see also Baradaran, The Color
of Money, supra, at fn . 30, p . 66 (“Wilson
purged the federal bureaucracy of any
blacks who had managed to secure a
government job . He prohibited the
hiring of any black employees and fired
those his predecessor had hired .”) .
460 Little, How Woodrow Wilson Tried to
Reverse African American
Progress, supra, at fn . 455 .
461 Yellin, Racism in the Nation's Service:

Government Workers and the Color
Line in Woodrow Wilson’s America
(2013), p . 135; On this Day, Apr. 11, 1913,
President Wilson Authorizes Segregation
Within Federal Government, Equal
Justice Initiative (as of Apr . 11, 2022) .
462 Little, How Woodrow Wilson Tried to
Reverse African American
Progress, supra, at fn . 455 .
463 MacLaury, The Federal Government and
Negro Workers Under President Woodrow
Wilson (2000), U .S . Dept . of Labor .
464 The Post Office Department and Jim Crow
(Dec . 31, 2005) The American
Postal Worker Magazine, Am .

Postal Workers Unio
465 Aneja & Xu, The Costs of Employment
Segregation: Evidence from the
Federal Government under Woodrow
Wilson, NBER Working Paper No .
27798 (Sept . 2020) Nat . Bur . of
Economic Research, pp . 2, 11-12 .
466 Lehr, The Racist Legacy of Woodrow
Wilson (Nov . 27, 2015) The Atlantic .
467 Little, How Woodrow Wilson Tried to
Reverse African American
Progress, supra, at fn . 455 .
468 Race in America, U .S . Government
Accountability Off .
469 Federal Employment Examinations: Do
They Achieve Equal Opportunity And Merit
Principle Goals? (May 15, 1979) Report
to the Congress by the Comptroller
General of the United States, p . 24 .
470 Frank Greve, Federal Study Confirms
Link of Race, Firings (Oct . 20,
1994), Seattle Times .
471 Ibid.
472 Executive Branch Employment by Gender
and Race/National Origin, Policy,
Data, Oversight: Data, Analysis
& Documentation, U .S . Off . of
Personnel Management; QuickFacts,
United States, U .S . Census Bur .
473 Senior Executive Service, Fiscal Year 2014-
2018, U .S . Off . of Personnel
Management, Office of Strategy and
Innovation Data Analysis Group at p . 7 .
474 The Army and Diversity, U .S . Army
Center of Military History .
475 Ibid.
476 Timeline: From the Beginning, Black Am .
in the U .S . Army; Jones, American
Work, supra, at fn . 12, pp . 103-04 .
477 Frey, Water from the Rock: Black
Resistance in a Revolutionary
Age (1991) p . 170 .
478 Hine & Jenkins, A Question of Manhood,
Volume 1: A Reader in U.S. Black Men's
History and Masculinity, "Manhood Rights":

The Construction of Black Male History and
Manhood, 1750-1870 (1999), pp . 197-98,
quoting Hessian captain Johann Ewal
479 Jones, American Work, supra, at fn . 12,
p . 104 .
480 The Militia Act of 1792, Second
Congress, Session I . Chapter XXVIII;
Nat . Guard, About the Guard, How
We Began (as of Apr . 11, 2022) .
481Nat . Museum of the Marine Corps .,
African Americans in the United
States Marine Corps Timeline .
482Am . Battlefield Trust, War of 1812 Facts:

What roles did African Americans Play in
the War of 1812? (as of Apr . 11, 2022) .
483 Smith, Wedged Between Slavery and
Freedom: African American Equality Deferred
(Aug . 14, 2017) Nat’l Park Service .
484B rockell, The Ugly Reason ‘The Star-
Spangled Banner’ Didn’t Become our
National Anthem for a Century (Oct .
18, 2020) Washington Post .
485 Trotter, Workers on Arrival, supra, at
fn . 6, p . 48 .
486 Jones Testimony, supra, at f
487 Trotter, Workers on Arrival, supra, at
fn . 6, p . 49 .
488 Timeline: From the Beginning, supra, at
fn . 477 .
489 Jones, American Work, supra, at fn . 12,
p . 288 .
490 Id. at pp . 286-87 .
491 Freeman et al ., The Fight for Equal Rights:

A Recruiting Poster for Black Soldiers
in the Civil War (1992) 56 Soc .

Education 2, pp . 118-120 .
492 The Civil War by the Numbers, Am .

Experience, PBS; Lee, Socioeconomic
Differences in the Health of Black Union Army
Soldiers (2009) Soc . Sci . History, p . 427-57 .
493 Berlin et al . , Freedom: A Documentary
History of Emancipation, 1861-1867, Series
II: The Black Military Experience (1982)

366
Chapter 10 Stolen Labor and Hindered Opportunity p . 725, citing an Anonymous Virginia
Black Solder to an Unidentified
Washington Official, December 1865 .
494 Trotter, Workers on Arrival, supra, at
fn . 6, p . 51 .
495 Jones, American Work, supra, at fn . 12,
pp . 288-89 .
496 Berlin et al . , Freedom, supra, at fn . 494,
Army Engineer to the Headquarters of
the Department of the South, p . 56 .
497 Lincoln’s Proclamation to Establish a
“Bureau of Colored Troops” , African
Am . Civil War Memorial, Nat . Park
Service (as of Apr . 11, 2022) .
498 Nat . Museum of African Am . History
& Culture, Buffalo Soldiers, Legend
and Legacy (as of Apr . 11, 2022) .
499 Ibid.
500 Ibid.
501 Ibid.; Nat . Park Service, Buffalo Soldiers
(as of Apr . 11, 2022) .
502 Nat . Museum of African Am . History
& Culture, Buffalo Soldiers, su-
pra, at fn . 499 .
503 Ibid .
504 Ibid .
505 Ibid .
506 Jones, American Work, su-
pra, at fn . 12, p .
507 Ibid .
508 Ibid .
509 Ibid .; Jack D . Foner, Blacks and the
Military in American History:

A New Perspective (1974) p . 121,
quoting a black officer .
510 Jones, American Work, su-
pra, at fn . 12, p .
511 Ibid.
512 Timeline: From the Beginning,
supra, at fn . 477 .
513 Ibid .
514 Dalfiume, The “Forgotten Years” of the
Negro Revolution, 55 J . Am . History,
90, 90, quoting James Baldwin
as quoted in Yinger, A Minority
Group in American Society (1965
515 Brown, The Whiteness of Wealth: How the
Tax System Impoverishes African Americans—
And How We Can Fix It (2021), pp . 15-16;
Callahan, How the GI Bill Left Out African
Americans (Nov . 11, 2013) Demos .
516 Nat . Museum of the Marine Corps .,
African Americans in the United States
Marine Corps Timeline, supra, at fn . 482 .
517 Executive Order 9981, Establishing the
President's Committee on Equality
of Treatment and Opportunity in
the Armed Services (July 26, 1948) .
518 Korb, History of Integration in the U.S.

Armed Services (Jul . 13, 2021) MilitaryTime .
519 Conde, For Many Black families, Military
Service is a Chance at Upward Mobility
(Nov . 11, 2021) NBC News; Wilcox et
al ., Black Men Making it in America: The
Engines of Economic Success for Black Men in
America, Inst . for Family Studies, p . 16 .
520 African-Americans in Combat, History
Detectives, Public Broadcasting Service .
521 Murray, Blacks and the Draft: A History of
Institutional Racism (1971) 2 J .

Black Studies 57, 69-70 .
522 African-Americans in Combat, supra, at
fn . 521 .
523 Ibid .
524 Ibid .
525 Ibid .
526 Cooper, African-Americans Are Highly
Visible in the Military, but Almost Invisible
at the Top (May 25, 2020) Wash . Post .
527 Christensen & Tsilker, Racial Disparities
in Military Justice: Findings of Substantial
and Persistent Racial Disparities Within
the United States Military Justice System,
Protect Our Defenders, pp . 1,
528 Stafford, et al ., Deep-Rooted Racism,
Discrimination Permeate US Military
(May 27, 2021) AP News .
529 Cramer, Confederate Flag an Unnerving
Sight in Capitol (Jan . 9, 2021) N .Y . Times .
530 Romey, Decoding the Hate Symbols Seen
at the Capitol Insurrection (Jan .
12, 2021), Nat’l Geographic .
531 Watson & Legare, Over 80 of Those
Charged in the January 6 Investigation
Have Ties to the Military (Dec .
15, 2021) CBS News .
532 Gibson & Jung, Historical Census
Statistics on Population Totals by Race,
1790 to 1990, and by Hispanic Origin, 1970
to 1990, for the United States, Regions,
Divisions, and States (Sept . 2002) U .S .

Census Bureau, Population Division:

Working Paper No . 56, Table 19, at
p . 47; A History of African Americans in
California: Industry, supra, at fn . 379 .
533 Broussard, In Search of the Promised
Land in Seeking El Dorado, su-
pra, at fn . 20, p . 198 .
534 Rothstein, The Color of Law, supra, at
fn . 150, p . 165 .
535 Id. at p . 168 .
536 Id. at pp . 168-69 .
537 Id. at p . 168 .
538 Hudson, West of Jim Crow: The Fight
Against California’s Color Line (2020)
p . 234, quoting Ruby Williams; see
also Rampersad, Jackie Robinson: A
Biography (1997) p . 22 [“By 1940, a year
before Jack Robinson’s departure from
Pasadena, the city had not yet hired, as
one editorial indignantly put it, ‘a single
[black] policeman, fireman, regular
day-time school teacher, meter-reader,
or any other type of employee for the
utilities; no, not even a janitor or an
elevator boy in the City Hall .’ Pasadena
employed some blacks in the part,
street, and refuse departments, and
then only as laborers, never as clerks .

At some point, the post office began to
hire blacks, and a county office ginger-
ly broke the Jim Crow rule; but most
businesses did not, and all trade unions
scorned blacks as members . The result
was chronic unemployment and a
growing despair . In 1924, after the city
rebuffed a petition to appoint a black
policeman (by then Los Angeles had a
black detective and several black patrol-
men and firemen), the Eagle summed up
its concern: ‘The condition of affairs sur-
rounding the racial issues in Pasadena
is nothing less than nauseating .’”] .
539 Spangler v. Pasadena City Board of
Education (C .D . Cal . 1970)
311 F . Supp . 501, 504 .

367
Chapter 10 Stolen Labor and Hindered Opportunity 540 AB 3121 Meeting Materials, pp . 258-259;
Jones Testimony, supra, at fn . 6
541 United States v. City and County of San
Francisco (N .D . Cal . 1988)
696 F . Supp . 1287, 1290 .
542 Madowitz et al ., Public Work Provides
Economic Security for Black Families
and Communities (Oct . 2020)
Center for Am . Progress .
543 2018 Annual Census of Employees in State
Civil Service: Report to the Governor
and Legislature (Mar . 2020) Cal . Dept .
of Human Resources, pp . 10, 19 .
544 Semega, Income and Poverty in the
United States: 2019 (Sept . 15,
2020) United States Census .
545 Manduca, Income Inequality and the
Persistence of Racial Economic
Disparities (2018) 5 Sociological
Science 182, pp . 182, 190 .
546 Darity & Mullen, From Here to
Equality, supra, at fn . 368, p . 44 .
547 Poverty Rate by Race/Ethnicity (CPS)
(2020) Kaiser Family Found .,
State Health Facts
548 Mason, Moments of Disparate Peaks:

Race-Gender Wage Gaps Among
Mature Persons, 1965-2007 (2011) Rev .

Black Political Econ . 38, p . 1-25 .
549 Jones Testimony, supra, at f
550 Whitehead, Support from Family Does
Not Replace the Social Safety Net (Apr . 2016)
Center for Poverty Research, U .C . Davi .
551 Bhutta, et al ., Disparities in Wealth by
Race and Ethnicity in the 2019 Survey
of Consumer Finances (2020)
FEDS, Board of Governors of
the Federal Reserve System .
552 Akabas, et al ., New BPC Survey Shows
Americans Need Better Ways to Save
for Emergencies (Feb . 25, 2021)
Bipartisan Policy Center .
553 Bohn et al ., Black Californians Struggle
within a Challenging Job Market (Feb . 24,
2021) Pub . Policy Inst . of Calif .; Smart,
COVID-19 Job Market Wreaks Havoc on
Black Women (Apr . 15, 2021) U .S . News
& World Report; Goldman et al ., Racial
and Ethnic Differentials in COVID-19-
Related Job Exposures by Occupational
Standing in the US (2021) 16 PLoS ONE;
Gould & Wilson, Black Workers Face Two
of the Most Lethal Preexisting Conditions
for Coronavirus—Racism and Economic
Inequality (June 1, 2020) Econ . Policy
Inst .; Tracking the COVID-19 Economy’s
Effects on Food, Housing, and Employment
Hardships (Sept . 23, 2021) Center on
Budget and Policy Priorities; Williams,
Laid Off More, Hired Less: Black Workers
in the Covid-19 Recession (Sept . 29,
2020) Rand Corp ., the Rand Blog .
554 Jan, The Striking Race Gap in Corporate
America (Dec . 15, 2021) Wash . Post .
555 Ibid . These companies are Walmart,
Nvidia, Cisco, Pfizer, T-Mobile,
Costco, Honeywell and Qualcomm .
556 Reed, The Surprising Cross-Racial Saga of
Modern Wealth Inequality (Jun . 29,
2020) The New Republic .
557 Jones Testimony, supra, at f
558 Poverty Rate by Race/Ethnicity (CPS),
supra, at fn . 548 .
559 Bohn et al ., Black Californians Struggle
within a Challenging Job Market,
supra, at fn . 554 .
560 Kaplan & Hoff, Almost 70% of Black
workers in Southern California who lost
their jobs said they were still looking for
work a year after the start of the pan-
demic (Mar . 2, 2022) Business Insider;
Essential Stories: Black Worker COVID-19
Economic Health Impact Survey (Feb .
2022) UCLA Ctr . For the Advancement
of Racial Equality at Work, pp . 18-19 .
561 Dunn et al ., Black Representation in Film
and TV: The Challenges and Impact
of Increasing Diversity (March 11,
2021) McKinsey & Company .
562 Ibid.
563 Ibid.
564 Faughnder & James, Hollywood’s
C-suites Are Overwhelmingly White.