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Restrictive Covenant


Until the Supreme Court ruled their judicial enforcement unconstitutional in shelley v. kraemer (1948), restrictive covenants were widely employed to achieve the racial segregation of urban neighborhoods in America. A restrictive covenant is a contract among owners of land, mutually limiting the uses of land covered by the covenant. Many such covenants have benign purposes: all the owners on a residential block, for example, might agree that houses will be set back thirty feet from the street. Racial covenants, however, limited the occupancy of homes on the basis of the occupants' race. They rested on an ugly premise: excluding blacks or Asians would, as one Louisiana court put it, make a neighborhood "more attractive to white people."

Such covenants were commonly adopted by landowners, or written into deeds of newly developed land, beginning in the late nineteenth century. Under existing property law, they were enforceable not only against their signers, but against the signers' heirs, assignees, and purchasers—at least so long as "conditions" had not changed. The use of the covenants accelerated after the Supreme Court decided, in buchanan v. warley (1917), that municipal zoning ordinances specifying where persons of one race or another might live were unconstitutional. The typical covenant ran for twenty-five years, but some ran for fifty years or even in perpetuity.

Restrictive covenants cannot be said to be the sole cause, or even the primary cause, of residential segregation before 1948. The poverty of most blacks was itself a severe restriction on the purchase of homes; and middle-class blacks who could afford to buy were steered to "colored sections" by real estate brokers and lenders. (The latter practices became violations of federal law only in 1968.) Yet the covenants surely played their part in the segregative process, a part they could play only because they were enforceable in court.

If an owner started to build a house too close to the street, in violation of a restrictive covenant, the neighbors would be entitled to an injunction ordering the owner to stop. They might also be entitled to damages, if they could demonstrate some loss. But, subject to the covenant's limitations, the owner would be entitled to occupy the property, or sell it to any purchaser. The owner of property subject to a racial covenant, however, could not—so long as the covenant was enforceable—sell it to blacks for their use as a residence. The racial covenants, then, not only restricted black would-be buyers but also restricted the owners' free alienation of property—an interest recognized in the common law since the thirteenth century. Yet the state courts regularly enforced the covenants.

The Supreme Court lent its approval in 1926, in corrigan v. buckley, holding that judicial enforcement of a racial covenant did not even raise a substantial federal question; any discrimination was private action, not state action. (The case arose not in a state, covered by the fourteenth amendment, but in the district of columbia. The Court correctly sensed, however, that a similar problem would arise if an equal protection guarantee were found applicable to governmental action in the District.)

Over the next two decades, the NAACP searched for opportunities to bring to the Court new challenges to the judicial enforcement of racially restrictive covenants. They finally succeeded in Shelley, where the Court did find state action in a state court's injunctive relief to enforce a covenant against black buyers of a home. On the same day, in Hurd v. Hodge (1948), the Court reached a comparable result in an attack on judicial enforcement of a covenant in the District of Columbia. No constitutional issue was decided in Hurd; the Court based its decision on "the public policy of the United States."

Five years later, the Court took away the last remaining weapon of persons who would seek to use racial covenants as a way of keeping their neighborhoods white. In barrows v. jackson (1953) the Court held that a state court violated the Fourteenth Amendment by using a covenant as a basis for awarding damages against persons who sold their house to black buyers.

One of the worst features of the racial covenants was their contribution to the symbolism of black inferiority. The removal of that symbolism, wherever it may be found, is necessary if the Fourteenth Amendment's promise of equal citizenship is to be fulfilled. But ending the judicial enforcement of racial covenants did not end residential segregation, a phenomenon that has declined only slightly since 1940.

Kenneth L. Karst


Henkin, Louis 1962 Shelley v. Kraemer: Notes for a Revised Opinion. University of Pennsylvania Law Review 110:473–505.

Vose, Clement E. 1959 Caucasians Only. Berkeley: University of California Press.

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