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
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.
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
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
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
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