Racially Restrictive Covenants

Echoing yesterday’s post, should a homeowner be allowed to sell his property to only whites? A “Caucasian Only” real estate advertisement has created a buzz in Massachusetts. A holdover from Jim Crow, the covenant stipulates that the property “shall not be sold, leased or rented to any person other than of the Caucasian race or to any entity of which any person other than of said race shall be a member, stockholder, officer or director.”

Restrictive covenants are deed restrictions put in place by the original developer that apply to a group of lots that are part of a development or subdivision. For example, a restrictive covenant may stipulate the type of material used to build a house, how small or large the house may be, etc. Some restrictive covenants back in the day prohibited the homeowner from selling his house to blacks specifically or to anyone other than whites.

In the mid-40s, a white couple in Missouri sued to keep a black couple from moving into their neighborhood. The property was governed by a racially restrictive covenant that stipulated the owners could sell only to whites. The state’s highest court ruled the covenant enforceable against the black couple, because it was a private agreement between the original parties. In 1948, the U.S. Supreme Court held that although the covenant didn’t violate anyone’s rights, the white couple couldn’t seek judicial enforcement, because such enforcement would be considered state action.

So what if it was state action, you ask? Well, the Fourteenth Amendment applies to states, not to individuals. (You wouldn’t know that in 2010 unless you paid attention in history class.) While racially restrictive covenants between individuals don’t violate the Equal Protection Clause, enforcement of such covenants by the state would violate the clause.

Contrary to common belief, the Supreme Court didn’t declare racially restrictive covenants illegal; the court declared them unenforceable.

Addendum: Eight years before the Shelly v. Kraemer case, the Supreme Court decided Hansberry v. Lee (parents of playwright Lorraine Hansberry) on procedural grounds. Homeowners agreed not to sell to blacks, effective only if signed by 95 percent of the owners. The covenant had been upheld in an earlier class action suit. Although only 54 percent of the homeowners had signed the agreement, the owners invoked res judicata (the matter had already been judged) based on the earlier suit.

The Hansberrys, who bought the property from an original party to the agreement and knew about the restriction, challenged the restriction. They claimed they were not parties to the original agreement, and being barred from litigating the matter would violate their Fourteenth Amendment rights. The court agreed.