The Legal History of Racist Covenants

by Brandon Kyle, Eric Dietlein, and Jacob S. Dorman

Racist covenants were the longest-lasting and one of the most consequential means of creating and policing residential segregation, lasting from the first example in 1893 until long after they were made illegal in 1968.  

The Fourteenth Amendment of the Constitution, passed in 1868 after the Civil War, reads “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Nevertheless, beginning with Baltimore in 1910, certain localities attempted to create racist zoning laws saying where different racial groups could and could not live.

However, in 1917 the Supreme Court ruled in Buchanan v. Warley that such racial zoning practices in Louisville, Kentucky violated the Fourteenth Amendment rights of persons wishing to sell or buy properties. The courts however left open the possibility of private parties as opposed to governments racially discriminating in housing sales. In 1915, Charles Buchanan — a White homeowner — had agreed to sell his home to William Warley — a Black buyer. However, the home Warley had agreed to buy was located in a predominantly white area, and local racist zoning laws prohibited Warley from occupying the home as a resident. Thus, Warley argued he would not complete their transaction due to his inability to occupy the home as a resident. Buchanan, frustrated by Warley’s refusal to carry out their agreement, argued that the court ought to compel Warley to complete their transaction on the basis that racist restrictive ordinances were unconstitutional. In their decision, the Supreme Court ruled that racist zoning laws were unconstitutional and violated the due process clause in the Fourteenth Amendment. Since cities and locales could no longer exclude Black people from their neighborhoods with racist zoning laws, racist covenants became increasingly popular among homeowners who feared Black populations would lower the value of their homes.

In 1926, the high court ruled in Corrigan v. Buckley that private parties could indeed discriminate against so-called “negroes,” because the Fourteenth Amendment applied only to governments, not to individuals. This ruling opened a floodgate of racist covenants, and they quickly became thought of as not only legal, but a “best practice” among lenders and real estate professionals, spread by professional associations like the National Association of Real Estate Boards (NAREB).

In 1922, Irene Corrigan, a white woman, had planned to sell her property to Helen Curtis, a Black woman. However, a year earlier, Corrigan had agreed, along with 30 of her white homeowners, to a community-wide racist covenant that prevented them from selling or renting their homes to people of color. Despite Corrigan’s intentions to sell her property to Curtis, neighbors were fearful that a Black couple moving into the neighborhood would lower their property values. Thus, James Buckley — a resident of the neighborhood — and other community members sued to prevent Corrigan from transferring ownership to Curtis. While Curtis claimed that an annulment of the property transfer would violate her rights guaranteed by the equal protection, due process, and privileges and immunities clauses of the U.S. Constitution, the Supreme Court ruled that the racist covenant was legally binding and that Corrigan could not transfer her property to Curtis. Ultimately, this Supreme Court case set the precedent for legal private housing discrimination.

Also in 1926, the Supreme Court ruled in Village of Euclid v. Ambler Realty Co that local governments could create zoning ordinances to promote such goals as public health, safety, and morality, and local planners seized on such laws in order to constrict “undesirable” races from “encroaching” on majority-White neighborhoods, using designations such as single-family residential housing in conjunction with private racist covenants to discriminate against people of color.

The Supreme Court dealt a blow to racist covenants in 1948’s Shelley v. Kraemer decision concerning an African American family that bought a home in St. Louis covered by a racist covenant. That ruling determined that private agreements to discriminate on the basis of race did not violate the Fourteenth Amendment, but it was a violation of the equal protection clause of that amendment for governments or courts to enforce such agreements. In 1945, a Black family — the Shelley’s — had purchased a home in a St. Louis, Missouri neighborhood with a racist covenant. A resident of a nearby neighborhood — Louis Kraemer — sued to prevent the Shelleys from moving into the community and occupying the home. Accordingly, the Supreme Court ruled in favor of Shelley and explained that the federal government could not legally enforce racist covenants, arguing that racist covenants violated the equal protection clause in the Fourteenth Amendment. While this decision explained that racist covenants were not legally enforceable by state or federal courts, it was not illegal to include them in deeds. Thus, while these racist covenants could not be enforced by the federal government, homeowners still inserted them into real estate documents to intimidate Black buyers and warn them that their community would not welcome them.

In 1953, the Supreme Court followed up Shelley with the Barrows v. Jackson decision, which ruled in a Californian case that private parties were forbidden from suing someone for violating a racist covenant. Together, Shelley and Barrows ruled racist covenants not illegal but unenforceable, and their use began to decline—but did not go away. Developers and individuals continued to use racist covenants, one part of a long-term and widespread strategy of resistance to civil rights progress on the part of some opponents of racial equality.

In 1968, racist covenants were finally made illegal by the passage of the Fair Housing Act, which prohibited discrimination on the basis of race, color, religion, sex (including gender identity and sexual orientation), disability, familial status, or national origin when buying or renting a home or applying for a home mortgage. That same year, the Supreme Court upheld the legality of the Fair Housing Act in Jones v. Alfred H. Mayer Co.

Yet even this measure did not completely stop the use of racist covenants; we have found them as late as 1969 in Reno, and 46% of the 6,000 racist covenants we have found in Reno were created after 1948’s Shelley v. Kraemer. The Fair Housing Act was poorly enforced and did nothing to undo the long use and legacy of racist covenants, contributing to the fact that very little progress has been made since that time in addressing the racial homeownership gap. From 1970 to 2019 Black homeownership rates increased only 1.2%.