Covenants of Exclusion
February 3, 2015

A hundred years ago, William Warley signed a contract to buy a house in Louisville, Kentucky from Charles Buchanan, a white man. Before closing the sale, Warley, who was black, learned that the lot was subject to a city ordinance barring blacks from occupying the premises if most of the neighbors were white. Sure enough, the block’s complexion triggered the ordinance, and Warley decided that the property wasn’t worth as much to him. But when he went to get out of the contract, Buchanan balked, and the two ended up in court in a case that was appealed all the way up to the United States Supreme Court. In 1917, the Court ruled that Louisville’s ordinances denied the rights guaranteed to blacks in the 14th Amendment, and so were unconstitutional. In short order, Louisville’s ordinances were voided and overturned.

As were such ordinances in cities all around the United States—not just in the South, but also the Upper Midwest, the Northeast, and even the Far West. Louisville’s race-based zoning exemplified a common tactic of American cities in the late 1800’s and early 1900’s coping with an influx of dispossessed blacks seeking urban factory work. Race-based zoning demarcated areas of the city in which non-whites were not permitted to live or own property, sequestering blacks to the other sides of riverbeds and railroad tracks or down the hills from where whites had concentrated themselves. The cities did so with the full permission of the state governments, whose constitutions, like Kentucky’s, had enshrined the rights of municipalities to segregate their populations.

Buchanan v. Warley upended this system. But the law, as is its wont, changed no hearts. Observing that the ruling only applied to municipalities, some astute realtors, developers, and private landowners started placing race-restrictive covenants on their land. Like the municipal zoning plots, these covenants prohibited the sale and occupation of the parcels to non-whites. But, like easements and boundary descriptions, these restrictions were written into the real estate deeds themselves. Since such stipulations run with the land—that is, they apply to the property itself, and not merely to the two parties named on the original transaction—race-restrictive covenants represented some forward thinking on the part of the segregationists. To restrict ownership to whites in 1926 would bode well for the complexion of the neighborhood in 1986.

After the ruling, wherever blacks moved, they still found themselves shunted back over the tracks, into the riverside lowlands, and under the factory shadows. North in Detroit, New York City, New England, the Upper Midwest; west and south in Dallas, Houston, the Bay Area, and southern California; northwest in Oregon and Washington: these covenants blanketed the land. By 1940, Los Angeles and Chicago both had 80% of their land area under such restrictions.

The restrictions were not limited to blacks. I worked for years as a land surveyor in the Pacific Northwest, and if the parcel I was studying was old enough, it wouldn’t take long to bump into such a covenant. Some documents simply required that the property never be sold to non-whites. Most were more specific. One enumerated every Asian race the writer could think of, banning Mongolians, Malays, Chinamen, and all other Asiatics. Another made his wishes abundantly clear: no Negroes, Blacks, or Niggers. Yet another was more succinct: no one of Ethiopian race or blood. Jews encountered writing that excluded Semites or Hebrews, or specified ownership of the property by Aryans only—phrases written into Seattle-area documents as late as 1946. While composed by private parties, the documents nonetheless bore the imprimatur of the counties in which they were recorded, binding their courts to defend those restrictions if push came to shove.

Push came to shove in a Saint Louis neighborhood in 1945, when the Shelleys, a black couple, bought a home from a white owner who shrugged at the lot’s restriction against Negro ownership. A neighboring landowner, Louis Kraemer, took it more seriously, and sued the Shelleys to prevent them from buying the house. The Shelleys won the first round in the Saint Louis State Circuit Court; Kraemer’s appeal to the Missouri State Supreme Court went to him. The case went before the U.S. Supreme Court, which issued a decision in 1948 saying that while individuals were free to observe such covenants, they could not seek judicial enforcement of them.

The ruling did not make such restrictions illegal; it merely removed any purchase they might have held before the law. But private parties could still write them into real estate documents, and the presence of such wording sent powerful signals to prospective homebuyers. So, however unenforceable, the covenants persisted.  Meanwhile, the banks and the Federal Housing Administration tailored their lending practices to keep the races separate. The FHA’s Underwriting Handbook—which governed and guided the American mortgage industry—listed the criteria by which it would determine the risk of a given home loan. They included the borrower’s creditworthiness, the property’s condition—and whether the neighborhood contained “inharmonious racial or nationality groups”. The Handbook also featured color-coded “residential security maps” that demarcated neighborhoods where mortgages could be issued. Areas outlined in red were considered too risky to issue a mortgage. Invariably, these were black neighborhoods, many of them formed by the policies and practices of the previous 70 years. Areas outlined in green or yellow, on the other hand, met FHA standards, and were increasingly found in new suburban developments far from the red outlines of the city centers.

How did these two practices harmonize? Say a white family in a redlined neighborhood wanted a new house. The realtor would direct them to a new suburban development with the racial restriction written into the subdivision plat. The development, new and full of white people, would be greenlined by the FHA’s maps—and the mortgage would be approved. Meanwhile, a black family from the same redlined neighborhood—even with the same income—might also try to move. If the realtor even bothered to show them the greenlined subdivision, they’d encounter that race restriction. They would then be steered into a darkly-complected, more attainable neighborhood—if they managed to get a mortgage at all.

Thus, in broad strokes, was orchestrated the demographic phenomenon of White Flight, in which a coalition of realtors, banks, developers, landowners, zoning boards, and the FHA effected patterns of racial segregation that largely persist to this day.

These practices were ostensibly dismantled by the passage of the Fair Housing Act in 1968, which made it illegal to discriminate on the basis of their race, color, religion, or national origin. The covenants were now against the law. Redlining was now a crime. These practices had to stop.

As with the previous rulings, the nation simply removed the offensive language and continued doing as it wished. Gerrymandered congressional districts. The targeting of sub-prime loans at black borrowers. Urban renewal plans and the gentrification of once-despised city centers. Freeways designed to block off certain neighborhoods from the rest of the city. The War on Drugs and the siloing of millions of young black men into the nation’s jails. The collusion of policy-makers, money-lenders, and fear-mongers.

In 2014, Ferguson, Missouri erupted in flames and rioting after a white cop shot an unarmed black teenager. A Staten Island cop was caught on camera choking a black man to death for selling untaxed cigarettes. Conservative Christians reflexively trotted out some familiar talking points. “The issue isn’t white cops shooting black men, it’s black-on-black crime.” “I saw an educated black guy on Fox News who hates the rioting. Why can’t those rioters do what he did?” “Those gang-bangers and deadbeat fathers need the gospel so they’ll repent of their individual sins.”

Tepid bromides, all of them, meant to convince ourselves that institutional, systemic racism doesn’t exist, and therefore doesn’t have to be confronted. The sins of gang-bangers and deadbeat fathers are real. But so is the gospel-denying social evil, perpetrated by the powerful against the powerless, of racial segregation. Of course black-on-black crime constitutes the majority of black murders, rapes, assaults, and robberies: this nation has worked for years to shove them into the same neighborhoods far away from the rest of us.

With abortion, the church in America named a grave sin, developed a vocabulary of protest, and articulated a vision of repentance for a nation that consumes and obliterates its weak. Segregationist racism needs the same treatment.

For just as culturally- and judicially-sanctioned abortion denies the imago dei of murdered children, so, too, can something as petty as a real estate policy deny the imago dei of great swaths of humanity.

Brendan O’Donnell is a deacon at Trinity Reformed Church, Moscow, Idaho.

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