A Legal History of Racially Restrictive Covenants

For many years, racial housing discrimination was a matter of public record. Under the “separate but equal” framework of Plessy v. Fergusson,[1] towns and cities across the country enacted racist public zoning laws that excluded non-white persons from the “nice” parts of town. This public racism was both legal and widespread. In fact, some of the country’s earliest zoning laws were based entirely on racial exclusion.[2]

What changed and what didn’t

That all changed with the Supreme Court’s 1917 decision in Buchanan v. Warley, which barred local governments from enacting overtly racist zoning laws.[3] So white property owners found a new legal tool to enforce exclusion—the racially restrictive covenant. Across America, white property owners inserted covenants into their deeds that barred future owners from transferring the property to non-whites. And across America, courts upheld these covenants as constitutional because they did not involve any “state action” but instead acted as a contract between private parties. 

In many ways, covenants are like other contracts. They are an agreement between parties that, when breached, can be enforced in court. There is, however, one key difference: Covenants run with the land. This means that covenants are not tied to the original parties that agreed to them.  Instead, they will remain on the deed for as long as the deed is valid. And as the same deed is usually transferred from owner to owner, covenants can long outlast the parties that struck the original deal. So restrictive covenants that were made in 1931 can remain in the deed books of the County’s Register of Deeds in perpetuity.

Racially restrictive covenants are no longer legally enforceable.[4] In 1948’s Shelley v. Kraemer, the Supreme Court reversed course and held that while the creation of a restrictive covenant may indeed be a private act, its judicial enforcement was not. The Court’s ruling created a loophole: although courts could not legally enforce any racially restrictive covenants, parties continued to draft the covenants to signal to prospective non-white buyers that they were not welcome in the neighborhood. In 1968, Congress closed this loophole by passing the Fair Housing Act, which outlawed private discrimination in housing.

The landscape, 50 years later

So Between Buchanan  in 1917 and the Fair Housing Act in 1968, lies almost 50 years of widespread use of racially restrictive covenants. Like the years of racial zoning that preceded them, these 50 years dramatically shaped the demographic landscape of places like Durham, North Carolina. Yet because of the private nature of covenants, this pattern of exclusion is difficult to track. To fully understand the ways racial restrictive covenants have affected— and still affect—the livelihood, health, and welfare of Durham’s residents, you would need to map out every racially restrictive covenant in the county. And to that, you would have to systematically examine every single deed in the Durham County Register of Deeds that predates the Fair Housing Act. That would be a tremendous undertaking–and exactly what the Hacking into History Project is all about.

[1]163 U.S. 537 (1896). 

[2] Richard R.W. Brooks & Carol M. Rose, Saving the Neighborhood: Racially Restrictive Covenants, Law, and Social Norms 46 (2013).

[3] Buchanan v. Warley, 245 U.S. 60 (1917).

[4] Shelley v. Kraemer, 334 U.S. 1, 23 (1948).

[5] Id.

[6] Fair Housing Act, 42 U.S.C. §§ 3601–3619 (2018).  

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