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excerpted from: Christopher Ramos, The Educational Legacy of Racially Restrictive Covenants: Their Long Term Impact on Mexican Americans, 4 Scholar: St. Mary's Law Review on Minority Issues 149 - 184, 159-166 (Fall 2001) (258 Footnotes)
Racially restrictive covenants played a major role in contributing to residential segregation. In many instances, white property owners created restrictive deed covenants to exclude people of color from white neighborhoods. During the 1910s and 1920s, state courts upheld and *159 enforced these racially restrictive covenants. State courts applied the Due Process Clause of the Fourteenth Amendment and the Rule Against Restraints on Alienation to determine if a racially restrictive covenant was valid. These state courts often held that preventing a black family from moving into a white neighborhood did not violate the Due Process Clause of the Fourteenth Amendment or the Rule Against Restraints on Alienation. Simply stated, the enforcement of these racially restrictive covenants forced non-Anglo families to live in communities that were residentially segregated.
Although most state courts agreed that covenants restricting alienation of property were void, some courts upheld covenants that restricted alienation to non-Anglo families. Sadly, some state courts across the country upheld deed provisions that prevented black families from living in white neighborhoods. The following cases illustrate the hypocritical and flawed reasoning state courts used to uphold racially restrictive covenants. Although many of the cases discussed involve African-American litigants, these rulings also applied to Mexican Americans and other non-white families throughout the 1920s, 1930s and 1940s.
A. State Courts Side-Step Traditional Doctrines Simply to Prevent Non- White Families from Living in White Neighborhoods
In Los Angeles Investment Company v. Gary, the appellant argued that the California Supreme Court should uphold his racially restrictive covenant, which prevented a black family from moving into a white neighborhood. The appellant conveyed his lot to a third party with a deed provision stating that the third party could not sell, lease, or rent to anyone other than whites. However, the appellee, an African-American family, argued that the racial covenant restricted alienation and should be considered void. The family argued that the general long-standing rule regarding prohibition of alienation was based upon the public policy preference to eliminate impediments to the alienability of land.
The Gary court claimed to have understood the concept that restraints on alienation are void. Nevertheless, the court upheld the legitimacy of the racially restrictive covenant by sidestepping the traditional doctrine against restrictions on alienation. The court agreed with the appellant, the former lot owner. The court held that the racially restrictive covenant was not a restriction on alienation. Instead, the court reasoned that the racial covenant was a restriction on the use of property, not a restriction on the sale of property. The court failed to explain why it believed preventing the sale of property to an African-American family was not a restriction on alienation, but rather a restriction on use of property. As a result of the decision in Gary, African-American families were isolated from the rest of the community and were forced to live in deteriorated housing. If the Gary court had followed case precedent and traditional property law, the African-American family would not have been segregated from the community.
B. Enforcement of Racially Restrictive Covenants in the Midwest
In the Midwest, state courts were also upholding racially restrictive covenants during the 1910s, 1920s, 1930s and 1940s. Lyons v. Wallen is another example of a state court circumventing its own case law to uphold a racially restrictive covenant. In Lyons, the plaintiff sought to prevent the Wallens, a black family, from purchasing real property. The plaintiff argued that since seventy percent of homeowners in the approximate area signed a contract restricting the sale of the lot to "person or persons of the Negro race," the court should uphold the restriction. The Wallen family argued that the covenant placed a restraint on alienation of real property.
The Supreme Court of Oklahoma rejected the Wallens' argument that the racially restrictive covenant was void and contrary to public policy. The Wallens cited several cases in support of their argument, and, unlike Gary, the court in Lyons noted this use of precedent. The Wallens cited two cases in framing their argument. First, in Christie v. Lyons, the Oklahoma State Supreme Court did not enforce a racially restrictive covenant because only eighty percent of the homeowners signed the agreement to create the restrictive covenant, which was not enough to uphold the restriction. The second case cited was Veal v. Hopps. In Veal, the Oklahoma State Supreme Court also refused to enforce a racially restrictive covenant because less than two-thirds of the white owners signed the contract that created the restriction.
*162 Again, as in Gary, the Lyons court issued a ridiculous ruling against the African-American family. Although the court noted that the law did not favor covenants restricting the sale of land, the court nonetheless found the covenant enforceable where the "intention of the parties [was] clear." As in Gary, this court's reasoning appeared hypocritical and flawed when it chose to set aside its own laws and precedents simply to prevent a black family from living in a white neighborhood.
C. By Enforcing Racially Restrictive Covenants State Courts Refuse to Recognize Constitutional Rights of Non-White Citizens
State courts of the eastern United States were also upholding deed restrictions preventing blacks from living in white neighborhoods. Meade v. Dennistone is another clear example of a state court setting aside its own law and precedent to prevent African Americans from moving into a white neighborhood. In Meade, the appellee, Dennistone, tried to enjoin an African-American family from occupying a house in Baltimore, Maryland. Dennistone was a long-time resident of the neighborhood and based his claim on the ground that he, along "with fifteen other owners of property in the 2200 block of Barclay," agreed to create a racially restrictive covenant that did not allow "Negroes" to use or occupy property in the surrounding area. The African-American family argued that the restraint on alienation denied their right to equal protection under the Fourteenth Amendment. The court, however, disagreed. The court based its ruling on the notion that the constitutional amendments do not prohibit private individuals from entering into contracts regarding the control of their property. Furthermore, the court reasoned that restrictions on alienation are only repugnant when the covenant tends to harm the estate's value. In this case, the court believed that the racially restrictive covenants did not devalue the estate. The court finally concluded that the "law is powerless in eradicating racial difficulties between individuals," and that the government should not try to interfere in the *163 private dealings between individuals. The Mead court not only set aside its own case law, but also side-stepped constitutional issues simply to prevent an African-American family from moving into a white neighborhood. As in Lyons and Gary, the court in Mead upheld a deed provision that prevented an African-American family from living in a white neighborhood, perpetuating residential segregation.
D. Under State Court Rulings, Racially Restrictive Covenants Did Not Violate the Due Process Rights of Non-White Citizens
There have been several other instances in which state courts have circumvented constitutional guarantees and denied individuals their constitutional rights. Often, when dealing with a due process challenge, state courts would reason that since the state was not the primary party engaged in discrimination, the restrictive covenant did not constitute state action and therefore did not violate due process rights.
For example, in Fairchild v. Raines, the California State Supreme Court did not take into account whether the due process rights of the appellee, a black family, were violated if the racially restrictive covenant was upheld. The plaintiffs, including Fairchild, tried to enjoin Raines from occupying a lot in the city of Pasadena. The appellant based his argument on the ground that a restrictive covenant stipulated that the lots shall be limited and restricted to occupancy by "persons of the Caucasian race." However, there was an exception to the restrictive covenant. The exception stated that if the white occupant of a lot kept non- white servants, then the servants would not be in violation of the covenant.
The court's reasoning did not take into account whether the racially restrictive covenant violated the Raines family's constitutional rights. Instead, the court examined whether the white property owner suffered any monetary damage as a result of a black family living in the white neighborhood. To help the court in its decision, it considered the testimony *164 of a real estate expert who testified that the property value around the lot would decrease by fifty percent if a black family moved into the neighborhood. Consequently, the court held that provisions preventing a black family from occupying the property were valid and enforceable. It appears that the court in Fairchild believed that the lot owner's property rights were more significant than constitutional rights afforded to non-white citizens.
Ironically, there have been cases in which racially restrictive covenants were successfully challenged. In these cases, however, courts still refused to consider whether racially restrictive covenants violated the constitutional rights of African Americans. Instead, many of these cases looked to traditional property case law to decide whether to uphold a racially restrictive covenant.
In Clark v. Vaughan, the plaintiff tried to enjoin an African- American family from occupying a lot in Kansas City. The white lot owner based his argument on the ground that the deed covenant prohibited the sale of a lot, within the approximate area, to anyone of the "African race." However, in an unusual ruling for the time, the court sided with the defendant, a black family. The court held that the covenant did not violate the constitutional rights of the black family. However, the court also held that enforcing the covenant would be inequitable because African-American families already occupied many of the lots around the neighborhood. If the court upheld the restrictive covenant, then the purpose of the covenant would not be served.
E. Shelley v. Kraemer: A Change Occurs--Was It Too Little, Too Late?
Courts did not strike down racially restrictive covenants until the late 1940s and early 1950s. In 1948, the Supreme Court of the United States addressed the issue of racially restrictive covenants in Shelley v. Kraemer. Petitioner Shelley, an African-American family, argued that racially *165 restrictive covenants in deeds violated their constitutional rights. Specifically, the petitioner contended that the racially restrictive covenant violated the Equal Protection Clause of the Fourteenth Amendment. The Supreme Court ruled in favor of the petitioners and held that enforcement of racially restrictive covenants was unconstitutional. However, it is important to note that the Shelley Court did not specifically renounce racially restrictive covenants. The Court held that racially restrictive covenants alone did not violate constitutional rights. Rather, the judicial enforcement of racially restrictive covenants would violate the petitioner's rights because it constituted state action. The Court further held that the state cannot deny an individual's right to due process under the Fourteenth Amendment through state action. The Shelley decision seemed to influence other challenges to racially restrictive covenants. Courts throughout the nation cited to Shelley in racially restrictive covenant cases.
Texas courts also began to follow the Shelley ruling. After 1948, Texas courts held that racially restrictive covenants were not enforceable because such enforcement would constitute state action. However, prior to 1948, Texas state courts had no problem enforcing racially restrictive covenants. The enforcement of these covenants had a negative effect on the Mexican-American community. The ruling in Shelly v. Kraemer was perhaps too little, too late.
The Shelley decision was influential in a San Antonio case that dealt with racially restrictive covenants and a Mexican-American family. Shortly after the Shelley decision, in Clifton v. Puente, the Texas Fourth of Appeals held that it could not enforce racially restrictive covenants. In Clifton, the appellant sought a judgment in trespass to try title by arguing that Mr. Puente's chain of title contained a racially restrictive covenant. The Clifton court looked to the Shelly ruling and held that enforcement of the racially restrictive covenant would constitute state action. As a result, the Clifton court struck down the covenant.
The Clifton decision, however, may have also been too little, too late. Between the 1910s and the 1940s, courts throughout the nation upheld *166 racially restrictive covenants. The enforcement of these racially restrictive covenants during the 1910s, 1920s, 1930s, and 1940s have had a lasting effect on many Mexican-American communities and the effects of these racially restrictive covenants remain visible.
The patterns of de facto segregation still exist in San Antonio today. As San Antonio has grown, decisions to build the University of Texas at San Antonio and the University of Texas Health Science Center toward the city's north side, while simultaneously concentrating public housing projects on the west side, were based on race separation. Sadly, classrooms throughout San Antonio reflect the present-day segregation among Mexican Americans, African Americans, and Anglo Americans. Churchill High School, on San Antonio's north side, has an Anglo student population of seventy-six percent and a Mexican-American student population of eighteen- percent. San Antonio's primary west-side school district, the Edgewood Independent School District, has a student population consisting of ninety-six percent Mexican Americans.