Racially Restrictive Covenants in the United States: A Call to Action

Abstract

This paper examines the history and structure of racially restrictive covenants in the United States to better comprehend their continued existence, despite their illegality. While unenforceable, racially restrictive covenants signal tone and intent, may be psychologically damaging, and perpetuate segregation. Racially restrictive covenants were widespread tools of discrimination used by white homeowners to prevent the migration of people of color into their neighborhoods during the first half of the 20th century. In its 1948 decision, Shelley v. Kramer, the U.S. Supreme Court held that racially restrictive covenants could not be enforced, but the practice of inserting such covenants into title documents remained common. Finally, in 1968, the Federal Fair Housing Act made the practice of writing racial covenants into deeds illegal. However, nearly seventy years after Shelley and 60 years after the Fair Housing Act, racially restrictive covenants remain common features of deeds. This may be for several reasons. First, since covenants run with the land, they become part of the land title in perpetuity. Second, the process to remove covenants is expensive and time-consuming. Third, the majority of owners may not be aware that their properties are subject to racially restrictive covenants. Despite these challenges, it may be possible to adopt policies to improve removal rates. This paper calls lawyers, urban planners, and real estate professionals to action in light of their active role in the proliferation of racially restrictive covenants in the 20th century.