In 1945, J.D. and Ethel Lee Shelley, an African American couple, purchased a home for their family in a white St. Louis, Missouri neighborhood. Problem was: In selling the modest, two-story brick dwelling to a Black family, the home’s white owners had defied a 34-year-old restrictive covenant agreed to by the neighborhood’s white residents. That covenant, mirroring ones inserted widely into deeds around the country, forbid the use or sale of property to people of the “Negro or Mongolian race.”
After several of the neighborhood’s white residents fought the Shelleys’ purchase in the St. Louis circuit court, the case escalated to the U.S. Supreme Court. In its 1948 Shelley v. Kraemer decision, justices ruled unanimously in favor of the Shelleys, writing that restrictive covenants couldn’t be legally enforced by state or federal courts because such discriminatory governmental action violated the Equal Protection Clause of the 14th Amendment. However, the ruling also acknowledged that these covenants, as private agreements, were not in and of themselves a constitutional violation, and could continue to be used to exclude people from occupying or purchasing real estate on the basis of race, ethnicity or religion.
This meant that restrictive covenants would continue to be broadly implemented—and socially enforced—in cities and suburbs across the U.S. until they were outlawed with the passage of the 1968 Fair Housing Act. They would affect a wide swath of the nation’s non-white communities.
“Even though the courts would not recognize racial covenants after 1948,” wrote Richard Brooks and Carol Rose in Saving the Neighborhood: Racially Restrictive Covenants, Law and Social Norms, “these documents could still bolster neighborhoods’ sense of the rightness of whiteness, and they could send a message to would-be interlopers.”
The Origins of Racially Restrictive Covenants
Between 1910 and 1970, more than 6 million African Americans made the so-called Great Migration from the South to large cities in the Northeast, the Midwest and the West, seeking economic opportunity and an escape from Jim Crow segregation. This led to racial tension and competition between African American and white workers for jobs and housing in many of the country’s largest urban centers. In the years immediately following World War I, racial violence erupted in cities around the U.S., including New York, Washington, D.C., Chicago and Tulsa, Oklahoma.
These racial disturbances led to the proliferation of racially restrictive covenants to segregate Black housing. By the late 1920s, their usage spread widely, especially across the North and Midwest, where they had been practically unknown just a few years earlier. “In theory, Blacks in northern cities continued to have free access to housing, but in practice their choices were increasingly limited by both formal and informal barriers,” wrote Michael Jones-Correa, a political science professor at the University of Pennsylvania, in the Political Science Quarterly.
As communities were built, developers and residents would agree to add clauses to all local deeds with language like this one, used in a Seattle suburb: "No lot shall be sold to or occupied by any person other than of the Caucasian race except in the capacity of servant."
Meanwhile, two decades before Shelley v. Kraemer, the judiciary signaled support for such discriminatory covenants. In the 1926 Corrigan v. Buckley case, the U.S. Supreme Court affirmed the right of property owners to legally enforce race-restrictive covenants. The ruling allowed violators of the covenants to be sued by their neighbors and non-white tenants to be evicted from properties where covenants were in place. The Corrigan decision stood until it was overturned by Shelly v. Kraemer.
'Detrimental to Property Values'
For its part, the real estate industry reinforced racially restrictive covenants by intrinsically linking them to the stability of local markets. According to Jones-Correa, the Chicago-based National Association of Real Estate Boards (NAREB) drafted a standard restrictive covenant document that became the model for local real estate boards across the country. Now known as the National Association of Realtors, NAREB included in its code of ethics an article that stated that a “realtor should never be instrumental in introducing into a neighborhood a character of property or occupancy, members of any race or nationality, or any individuals whose presence will clearly be detrimental to property values in that neighborhood.”
The federal government would adopt the policies of these real estate associations. Beginning in 1934, the Federal Housing Administration (FHA) recommended these discriminatory housing practices. “If a neighborhood is to retain stability, it is necessary that properties shall continue to be occupied by the same social and racial classes,” stated the agency’s Underwriting Manual. Appraisers stressed the need for “subdivision regulations and suitable restrictive covenants.”
Racially restrictive covenants increased with the passage of the National Housing Act of 1934, which introduced the practice of redlining, which marked off areas that were risky to underwrite or guarantee mortgages. “This practice provided a financial justification for racial restrictive covenants,” wrote Catherine Silva, a contributor to the Seattle Civil Rights & Labor History Project. “Redlining made it exceedingly more difficult for non-whites to purchase property because financing was refused in the only neighborhoods they were able to live.”
Such discriminatory governmental and market-based practices stacked the deck against the Shelleys and other African American home buyers for much of the 20th century, keeping them confined to decaying urban neighborhoods. And while the 1948 Supreme Court ruling eliminated judicial support for restrictive covenants, they were still subject to vigorous social enforcement. Communities found multiple ways to make non-Caucasian residents feel unwelcome without involving courts—from disrupting basic services like water and sewer to harassing and threatening families to acts of vandalism like slashing tires and smashing windows.
The Fair Housing Act of 1968 and the Legacy of Restrictive Covenants
The Fair Housing Act of 1968 forbade all discrimination in housing, but segregation was well entrenched and the old alliances that had kept the covenants in place found a way to circumvent the new system and even keep the discriminatory covenants on their deeds—even if they couldn’t legally enforce them.
“[White residents] used all legal and illegal means, including cross burnings, arson and physical attacks, to keep blacks out of their neighborhoods,” wrote Michelle Adams, a professor at Yeshiva University’s Benjamin N. Cardozo School of Law, in The New Yorker. “They formed thousands of homeowner organizations, complete with block captains, with the express purpose of keeping Blacks out of white neighborhoods.”
Researchers point to the lingering effects of racially restrictive covenants. A 2020 study by the Seattle Civil Rights & Labor History Project published ongoing research that so far found covenants covering more than 30,000 properties around that metro area. The same year, Larry Santucci of the Federal Reserve Bank of Philadelphia published a deep-dive study of the practice in that city that so far found nearly 4,000 instances of racial covenants included in the deed. “Racial covenants and other tools of residential segregation are not just part of a long-forgotten history,” he said. “Their effects are observed in today’s metropolitan residential patterns and in the vast and persistent wealth gap between African Americans and whites.”
