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Excerpted From: John Bliss, Rebellious Lawyers for Fair Housing: the Lost Scientific Model of the Early NAACP, 2021 Wisconsin Law Review 1433 (2021) (353 Footnotes) (Full Document)


RJohnBlissacially restrictive covenants (RRCs) were one of the most pernicious tools behind the formation of longstanding U.S. patterns of residential segregation and continue to underlie racial disparities in housing, health, education, intergenerational economic mobility, and life chances more generally. The lawyers who fought for decades to undo the American system of RRCs won a remarkable legal victory in the unanimous U.S. Supreme Court decision of Shelley v. Kraemer. No longer could homeowners enforce servitudes that read, for example, “No persons of any race other than the Caucasian race shall use or occupy any dwelling or building or any lot except that this covenant shall not prevent occupancy by domestic servants of a different race domiciled with an owner or tenant.”

The Shelley decision eliminated the last legal obstacle to willing interracial transfers of land and was hailed by some commentators as portending an “end of restricted communities and ghettos and slums.” Historians, in retrospect, have generally taken a less sanguine view of Shelley's impact, portraying the decision as a doctrinal outlier with little effect on residential segregation patterns. This Article suggests that the assessment of Shelley's significance should look beyond the question of whether immediate, measurable changes in social conditions are attributable to the decision. I argue that the campaign against RRCs should be viewed as a key moment in the long-term struggle for racial justice in the property system. Thus, in the terms of the “myth-busting” literature on the history of mid-twentieth-century civil rights litigation, I aim to reveal how the lawyers who challenged RRC enforceability “illuminate[d] future paths” for the “central but unfinished goals of the civil rights movement.”

More specifically, I consider how these lawyers addressed a deep-seated notion that has been central to American legal understandings since the Founding: “property in a sociological vacuum.” I borrow this term from a 1945 law review article written by Harold Kahen, a prominent lawyer in the NAACP coalition against RRCs. Kahen characterized the opposing lawyers' view of property as an effort to erase the social context and public significance of property relations. This vacuum view draws on a remarkably deep U.S. tradition of rhetorically claiming absolute owners' rights under what progressive legal theorists have described as the “ownership model” of property. As the record of racial covenant litigation illustrates, the vacuum view can be objectionable not only because it is inaccurate, but also because it has a long history of providing a rhetorical foundation for residential segregation.

The historical emergence of the race-neutral, vacuum-view rhetoric in RRC litigation reflects a broader phenomenon of what critical race scholars have identified as “colorblind racism.” Indeed, Professor Cheryl Harris has detailed the emergence, around the same time as the Shelley case, of the modern form of “whiteness as property,” wherein white Americans' investment in privileged racial identity adapted to the post-World War II era of racially progressive public discourse by drawing on a race-neutral vocabulary. Harris concludes that the proprietary investment in whiteness is “a ghost that has haunted the political and legal domains” and, consistently over the course of U.S. history, “warped efforts to remediate racial exploitation.” I argue that the vacuum view of property has a similarly enduring and haunting effect as a ghost of early American traditions of absolutist property rhetoric. These spectral companions, the vacuum view of property and the modern colorblind manifestation of white supremacy, have complementary capacities to provide segregationists with facially non-racist logics of residential exclusion. These logics frame white homeowners as populist victims while masking the “epochal” subsidization and racial inequities underlying white American advantages in housing and wealth.

This Article reveals how NAACP-affiliated lawyers drew on empirical research to mount a rare direct legal attack on the vacuum view of property. Up against settled law in favor of RRC enforceability, these lawyers furnished the Shelley Court with an unprecedented scope of social-scientific materials documenting how RRCs contributed to residential segregation. They framed RRCs as a pervasive “land policy” of racial apartheid, limiting housing options for people of color to overcrowded slums in declining central cities. To view RRCs as purely private interactions among neighbors would be, according to these lawyers, an “obliteration” of the “essence of property.”

This empirical strategy emerged through an innovative, multidisciplinary coalition of social scientists and civil rights, religious, labor, governmental, and other organizations, which presented a reportedly record number (at the time) of amicus briefs in a civil rights case. Although the vacuum view had previously been challenged in many ways over the course of U.S. history, never before (or since) had lawyers presented such a comprehensive attack on its theoretical and empirical foundations.

The Article proceeds as follows. Part I provides a theoretical foundation for lawyers' contributions to social-movement frames and public understandings of legal concepts. Part II gives an overview of the vacuum view of property as a fundamental legal concept with particular significance for racial inequities in housing. Parts III and IV review lawyers' advocacy for opposing theories of property in RRC litigation. I focus on the case record of Los Angeles, which was “ground zero” in the national legal battle over RRCs. Part V argues that fair housing lawyers should continue to target the vacuum view by drawing on the social-scientific model of the RRC cases.

[. . .]

Critics who charge civil rights lawyers with pursuing a myth of rights, thereby distracting resources from more effective social movement tactics, have suggested that this shortcoming is “embedded in ... the education and professional socialization of lawyers.” Similarly, Morris Cohen attributed lawyers' perpetuation of the vacuum view of property to the formalistic nature of legal education. It would seem, however, that even the most narrowly black-letter approach to property pedagogy should position lawyers-in-training to oppose the absolutism of the vacuum view. Property law necessarily locates owners' rights in a web of concurrent, overlapping, and contested claims, as well as implied restrictions, future interests, substantive limits, takings, and other duties and liabilities that inherently contradict the absolutist vision of owners' rights. Yet in light of the persistence of the vacuum view, law students and the legal profession more generally may require further nudging to appreciate not only the inaccuracy of the vacuum view, but also its track record of supporting residential segregation. The concern that legal pedagogy tends to sustain the vacuum view can perhaps be somewhat allayed when property teachers include theoretical insights about the relational and allocative nature of property, critical and historical perspectives on the deep-rooted links between property and racial inequality, and social-scientific evidence relating to the causes and consequences of residential segregation. This approach may be particularly effective when students are offered models for activist legal practice, like the example of the legal campaign against RRCs, where lawyers have effectively advocated more accurate and equitable alternatives to the vacuum view of property.

Assistant Professor of Law, University of Denver Sturm College of Law.

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