By Aidan Smagh
Racially restrictive covenants were legal agreements inserted into land deeds intended to bar the sale or use of property based on race, nationality, or religious affiliation. The emergence of these covenants, which first appeared in 1840s Massachusetts, coincided with other segregationist policies and practices by the Progressive Era. The U.S. Supreme Court’s “separate but equal” clause in Plessy v. Ferguson (1896) legitimized race-based segregation, and African Americans and other marginalized groups faced a myriad of challenges when they attempted to share spaces with white people.[1]
During the late nineteenth through the mid-twentieth centuries, segregation impacted every aspect of peoples’ lives, including housing access. Racially restrictive covenants were one popular way to create exclusively white neighborhoods. These neighborhoods consisted of newly constructed subdivisions that catered to white, middle- and upper-class families, usually outside of a town or city. Because they were seen as private contracts, the U.S. Supreme Court in Corrigan v. Buckley (1926) declared that racially restrictive covenants were legal, and the practice became pervasive throughout the country.[2]
Racially restrictive covenants, however, were not the only forms of segregation used to limited housing options for marginalized communities. Nuisance laws were initially drafted to protect residents from the actions of others that might cause some kind of discomfort, but white homeowners abused these ordinances to rid neighborhoods of African Americans.[3] The Kansas Supreme Court, however, ruled a person cannot be considered a nuisance based on their race in Falloon v. Schilling (1883).[4] Zoning ordinances were meant to separate residential and industrial areas to protect the people from harmful pollutants and the noise associated with factories. In 1910, Baltimore’s city leaders, however, established racialized zoning, supposedly to reduce potential violence against wealthier African American families who could afford to move into predominately white neighborhoods. In Buchanan v. Warley (1917), the U.S. Supreme Court declared that African Americans are allowed to buy property without state intervention discriminating against them because of their race.[5] As a result of this ruling, many communities passed land use zoning ordinances, which used class, instead of race, to divide neighborhoods. Race, however, also informed class divisions, and African Americans neighborhoods were sometimes zoned for non-residential usages.[6] Finally, the real estate industry itself used steering to manipulate African Americans and others into purchasing property “in less-desirable areas than they would have otherwise chosen.”[7]
While racially restrictive covenants were commonplace, African Americans did protest their usage. After World War II, civil rights activists slowly began to roll back this discriminatory practice. The U.S. Supreme Court in the landmark case, Shelley v. Kraemer (1948), declared that courts defending these covenants violated the Fourteenth Amendment; however, the ruling did not stop their use.[8] The inability to rid neighborhoods of racially restrictive covenants led to further Supreme Court decisions such as Hurd v. Hodge (1948) and Barrows v. Jackson (1953).[9] It was not until the passage of the Fair Housing Act (1968) that racially restrictive covenants would be completely outlawed in the U.S.
[1] Richard R.W. Brooks, and Carol M. Rose. Saving the Neighborhood: Racially Restrictive Covenants, Law, and Social Norms, Harvard University Press, 2013, 27.
[2] Larry Santucci. “How Prevalent Were Racially Restrictive Covenants in 20th Century Philadelphia? A New Spatial Data Set Provides Answers.” Federal Reserve Bank of Philadelphia, (2019), 8.
[3] Saving the Neighborhood, Brooks and Rose, 32.
[4] Saving the Neighborhood, Brooks and Rose, 33.
[5] Saving the Neighborhood, Brooks and Rose, 42.
[6] Restrictive Covenants in Philadelphia, Santucci, 6.
[7] Restrictive Covenants in Philadelphia, Santucci, 5.
[8] Restrictive Covenants in Philadelphia, Santucci, 10.
[9] Saving the Neighborhood, Brooks and Rose, 131.