No. 8/10 –Racial Covenants and Segregation, Yesterday and Today
Author: Carol M. Rose & Richard R.W. Brooks
Title: Racial Covenants and Segregation, Yesterday and Today
Abstract: This paper is to be part of a volume on "Race and Real Estate," edited by Kim Scheppele and Valerie Smith of Princeton University. The paper explores the role of privately-created racially restrictive covenants in American housing segregation, and many of its themes will be expanded in a book that the authors are now writing, with a probable completion date sometime in 2012. Racial covenants began to become common in residential deeds in the early twentieth century, typically purporting to prevent future owners from selling or renting to "non-Caucasians." Although there were a number of potential legal objections to the real estate covenants, based both on constitutional and property law considerations, they were treated increasingly leniently in the courts for the first forty years of the century. That pattern changed abruptly with the 1948 U.S. Supreme Court's decision in Shelley v. Kraemer, which rendered racially restrictive covenants unenforceable in the courts. Despite Shelley, however, racial covenants continued to be written into new deeds until the practice was made illegal through the Fair Housing Act of 1968. Even thereafter, however, racial covenants continued to appear in real estate records. Today, overt racial restrictions are widely ignored, but they are still very difficult to eradicate from the old records, and they occasionally seem to matter to owners. It is a matter of some interest why racial covenants persisted even after they became unenforceable and, to a more limited degree, even after they became illegal. This paper gives some possible answers, including the "sticky" characteristics of Ango-American property law, as well as the response of real estate and finance professionals to what they have considered to be market demand. Ultimately the persistence of covenants, even in very attenuated form, should cause us to reflect on the question whether Americans really want residential integration, and if we do, what we mean by integration.
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