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The court determined that Mr. McGhee was a Negro, because he looked like one, and his wife looked "like the mulatto type." The court ordered the McGhees to vacate the property within 90 days, and restrained them from using or occupying the premise in the future.

RACIAL COVENANTS: A History Past and Present
Donnellda Rice, Esq.

At one time, both Gov. George W. Bush and his father, former President George Bush, owned houses with restrictive racial covenants attached to their deeds, stating that the occupancy in the home was restricted to "white persons only, not excluding bonafide servants of any race," according to an article published last summer by Washington Post columnist David Broder.

When Broder asked Bush about it, Bush said he did not know of the covenant, and that it was a non-issue since the covenant was null and void under Texas law. At least George Bush is right about one thing- racially restrictive covenants limiting occupancy in a home or the sale of property to whites only, while still found in property deeds, are non-enforceable.

Once common, racial covenants are now legally impotent, offensive relics of the past, like "whites only" drinking fountains. Covenants precluding the sale of property to blacks or those prohibiting them from occupying certain land, made their debut in the post Civil War Jim Crow era, also known as "black codes" Locales throughout the nation passed laws making it illegal to sell property in certain neighborhoods to blacks, or criminalizing black occupancy on certain land. Some towns went so far as to prohibit whites from living in areas considered to be blacks neighborhoods.

Designed to segregate Blacks into limited geographic areas, these laws helped to perpetuate America's version of South African apartheid . In 1917, the U.S. Supreme Court put an end to the black codes. In the Buchanan vs. Warley decision, the high court ruled that a municipal ordinance making it a criminal offense to sell land to Negroes violated the 14th Amendment of the United States Constitution. Following the Warley decision, towns and states could no longer pass laws designating where Black citizens could and could not live.

Nonetheless, the Supreme Court's Warley decision did not go far enough. It left in place private racially restrictive covenants. Proponents of segregated housing were quick to take advantage of this loophole. By the 1920s, throughout the country in both northern and southern states, individual homeowners and developers agreed among themselves not to sell or rent to African Americans in particular areas. Other landowners put language in their property deeds requiring the property to revert to the original owner if sold, rented or leased to African Americans.

Black citizens continued to launch legal challenges against these covenants. As a result, state courts in California, Michigan, Pennsylvania and West Virginia concluded that covenants restricting the sale or other transfer of property to African Americans were invalid because they imposed an unlawful restraint on trade. Notably, though, even these courts did not rule that the covenants violated the U.S. Constitution.

Only two state courts ruled against restrictive covenants on the grounds that the covenant violated the Constitution. In Pennsylvania in a case called Yoshida vs. Gelbert, a court ruled that a restrictive covenant barring the occupancy of land by "a Chinaman or Chinamen," violated the 14th Amendment to the Constitution. The court also noted the covenant violated a treaty between the United States and China in which the U.S. had agreed to treat Chinese citizens equal to white citizens. In Arkansas, a court upheld the indictment of whites for refusing to lease a farm to Negroes, saying that the whites had violated federal law. And in an unprecedented decision, a Virginia court ruled that a corporation owned solely by Negroes could purchase land without violating the restrictive covenant on the land prohibiting its sale to individual Negroes.

Private restrictive covenants not only segregated African Americans in cities and rural counties, it served as a barrier to African American entry into suburbia. In Chicago, entire suburbs were limited to ownership and occupancy by "Caucasians only." African American citizens continued to launch challenges to racial covenants individually and collectively. Some used white "agents" to purchase homes for them.

In 1973, Carl Hansberry bought a home in the Washington Park area of Chicago, an area with a restrictive covenants prohibiting occupancy by Negroes. Supported by the NAACP and his self-run civil rights foundation, Carl Hansberry challenged the restrictive covenant and efforts to force him and his family from their home. His daughter, Lorraine, wrote about the experience in her play Raisin in the Sun.

Thurgood Marshall, head of the NAACP Legal Defense Program, orchestrated a brilliant legal campaign challenging private restrictive covenants before the U.S. Supreme Court. According to biographer Carl Rowen, Mr. Marshall committed almost a quarter of the NAACP's legal budget to fight what he considered one of the most humiliating lingering vestiges of slavery. In the first of these legal battles, McGhee vs. Sipes, Thurgood Marshall suffered an early defeat in what soon turned into an offensive against discriminatory housing practices.

In June 1934, Mr. Benjamin J. Sipes signed a contract with his neighbors agreeing that none of them would sell property to persons "other than those of the Caucasian race." Mr. Sipes sold his property to Mr. Ferguson, who unbeknownst to Mr. Sipes, was an agent for Mr. Orsel McGhee. Ferguson promptly sold the property to the McGhees, African Americans, who moved in on Nov. 30, 1944. On January 30, Mr. Sipes sued the McGhees. The court determined that Mr. McGhee was a Negro, because he looked like one, and his wife looked "like the mulatto type." The court ordered the McGhees to vacate the property within 90 days, and restrained them from using or occupying the premise in the future.

In an opinion that should be required reading for every high school American history class, the McGhee federal court engaged in a lengthy discourse noting that while restrictive covenants were creating serious public health issues, since 12 percent of the Detroit population was being forced to live in a limited area, the court could do nothing to remedy that side effect. The court also quoted an eloquent speech on the difference between justice and rule of law, concluding with self-righteous hypocrisy that the rule of law required the court to order the McGhees to vacate their home, making justice not within the purview of the court.

On May 3, 1948 in a landmark decision akin to Brown vs. Board of Education, the Supreme Court ruled in Shelley vs. Kraemer that court enforcement of private restrictive covenants was unconstitutional. Justice Vinson, speaking for the Court, pointed out that the covenants themselves were not unconstitutional, but the judicial enforcement of the private covenants violated the 14th Amendment to the Constitution. The Court made it abundantly clear that people were free to voluntarily adhere to a restrictive covenant, but the court prohibited any court in the country from enforcing it.

The decision was soon challenged. In a May 5, 1948 article in The Washington Post, readers were assured that other devices could be used by those "who want to choose their neighbors." Helpfully, the Post listed a few ways to circumvent the Supreme Court's decision in Shelley vs. Kraemer. U.S. News & 'World Report also provided readers with ways to "protect the exclusive status of their neighborhoods." The magazine warned that "occasional moves by Negroes into white neighborhoods, even exclusive neighborhoods, may be expected."

Some of the recommendations made to readers to protect the exclusivity of the neighborhood included:

Self-enforcement. Homeowners who had agreed to a restrictive covenant could be required to pay a deposit to guarantee their compliance. The deposit would be lost if the homeowner sold to a prohibited person.

Club Membership. Establish a club that would own all of the property in an area, and permit only club members to acquire shares in the club. The club could restrict membership to desired persons.

Law Suits for Damages. If a person sold property subject to a restrictive covenant to a prohibited person, the other homeowners could sue the seller for money damages.

High Occupancy Standards. To maintain the general character of a neighborhood and accomplish the "same ends sought by racial restrictions," neighbors could require a certain income level, a college degree, or limit the number of occupants per room in a house.

Financial Pressure. Private lending institutions could refuse to lend to a builder who sold to Negroes.

Police Harassment. US News suggested that police and local authorities be used to help maintain residential segregation by harassing the Negroes, noting that this method had been used quite effectively in the South.

Needless to say, all of these methods were employed. It was not until 1968 that the Supreme Court closed the last loophole in selective housing by ruling that private refusals to sell to Negroes were unconstitutional. Interestingly, the Court based its decision on a law that had been passed in its first permutation by Congress in 1868 in Jones vs. Mayer - a revision long overdue.

While the landmark decision of Jones vs. Mayer Company outlawed private restrictive covenants and refusal by private citizens to sell to Negroes, it was not until ten years ago with the enactment of the Fair Housing Act of 1988, that the federal government closed all loopholes, making it illegal to redline, refuse to sell, rent or loan or provide insurance on the basis of sex, religion, race or color.

Donnellda Rice, Esq. practices in Virginia.

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