Racially Restrictive Covenants
Designed to limit integration in housing, racially restrictive covenants constituted one of the many racist practices adopted in the Jim Crow era prior to the civil rights movement of the mid-twentieth century. By using the covenants in conjunction with the redlining procedures employed by banks and mortgage companies to restrict home loans, as well as the efforts of real estate agents who limited the homes they showed to Black buyers, whites were able to create or maintain racially homogenous neighborhoods and housing patterns across the country.
Specifically, racially restrictive covenants were a contractual provision used to limit residential integration. The covenant would be included as a provision in the sales contract for the sale of a home—preventing the buyer from selling the home to a person of color in the future, thus ensuring the maintenance of a homogenous neighborhood population. The covenants themselves went back to the nineteenth century, with Massachusetts homes often having covenants that prevented sales to African Americans or buyers of Irish descent.
After those early efforts, there was an increase in the use of covenants nationwide around the time of World War I, a change generally attributed to the “Great Migration” of southern Blacks to the North, which led urban areas to limit the integration that the new wave of migration might bring. And yet the covenants, as well as the redlining that was also more prevalent in the developing cities and suburbs, were still a part of life in the urban South and in Arkansas.
A prime example of the way restrictive covenants were used in Arkansas was the Pulaski Heights neighborhood in Little Rock (Pulaski County). As the neighborhood was taking shape in the latter part of the 1890s and early 1900s, the developers sought to make it attractive to prospective buyers, in part by ensuring that it would be exclusively white. The efforts to do so included placing advertisements in the Arkansas Gazette promising an absence of “negro cabins and shanties.” But more importantly, restrictive covenants, which limited the sale of the lots only to those “wholly of the white race,” were attached to each parcel of land in the development. (Black domestic servants, however, were allowed to live in the homes of their white employers.) The covenants were tremendously successful at achieving their ends. Not only did they keep the area white until the practice was prohibited at the federal level, but given the groundwork they helped lay, Pulaski Heights remained one of the least diverse neighborhoods in Little Rock well into the twenty-first century. Homes in Park Hill in North Little Rock (Pulaski County) were also covered by racially restrictive covenants.
The practice of using restrictive covenants had been the subject of a number of state court challenges in the first half of the twentieth century, but those were generally rebuffed, with the covenants being upheld as private agreements. Not until 1948 was the practice theoretically outlawed in a U.S. Supreme Court case, Shelley v. Kraemer. There, the Court ruled that racially restrictive covenants were a violation of the equal protection clause of the Fourteenth Amendment. In a telling side note, while the decision in Shelley v. Kraemer was a unanimous one, the 6–0 ruling reflected the fact that three justices had had to recuse themselves because they owned homes that had such covenants. And yet, not unlike the foot-dragging response to Brown v. Board of Education, the practice continued long after the Shelley v. Kraemer ruling. Indeed, it was not until two years after the Court handed down its ruling that the Federal Housing Authority (FHA) announced that it would no longer insure houses that had racially restrictive covenants.
The practice continued in no small part because the Court’s ruling focused on the role of state action in the enforcement of the covenants, and not on the covenants themselves. In fact, the key part of the Shelley ruling was that covenants could not be enforced by the state, but that did not preclude the continued existence of racially restrictive covenants made by previous owners and honored by subsequent purchasers. Indeed, to make the covenants even more effective in some cases, they were written so that the agreement was between a buyer and the rest of the neighborhood, an approach that kept the whole neighborhood united and homogenous while preventing a one-person effort at so-called blockbusting.
Following Shelley, some individual states enacted prohibitions on such covenants, but Arkansas did not, and for the most part the practice continued across the nation into the late 1960s. It was not until the passage of the long-stalled Fair Housing Act (legislation that had been consistently blocked but that, following the assassination of Martin Luther King Jr., was finally wrested free by President Lyndon Johnson and passed by Congress) that the practice was outlawed. The final piece of the legislative component of the civil rights revolution, the Fair Housing Act of 1968, prohibited discrimination concerning the sale, rental, and financing of housing, based on the same criteria as the Civil Right Act of 1964: race, religion, national origin, and sex. With that, the racially restrictive covenants were history, banned from further use. However, their legacy lived on—and arguably still does.
Indeed, like their government-sponsored partner practice, redlining, racially restrictive covenants also impacted the development of family wealth, limiting Black residents’ all-important home equity. Too, especially prior to desegregation efforts—which, of course, were at the heart of a long-running struggle across Arkansas—the education available to families was directly tied to where they lived, a factor whose long-term impact was at the root of the Supreme Court’s ruling in Brown v. Board of Education. Such impacts built upon themselves and have only served to increase the economic disparity well into the twenty-first century.
Studies reveal that numerous urban areas in Arkansas, especially its largest city, Little Rock, have become increasingly segregated over the years. Many studies have also demonstrated that where one lives determines one’s access to community assets, from fundamental services like healthcare and education to public parks and recreational opportunities. The harmful legacy of practices like racially restricted covenants remains clear in the twenty-first century.
For additional information:
“Agents of Change: Overcoming Racism in Community Associations.” Community Associations Institute, Law Seminar, January 25–29, 2021. https://foundation.caionline.org/wp-content/uploads/2021/02/Overcoming-Racism-in-Community-Associations-ETHICS.pdf (accessed December 16, 2021).
Jones-Correa, Michael. “The Origins and Diffusion of Racial Restrictive Covenants.” Political Science Quarterly 115 (Winter 2000–2001).
Nichols, Cheryl Griffith. “Pulaski Heights: Early Suburban Development in Arkansas.” MA thesis, George Washington University, 1981.
Rothstein, Richard. The Color of Law. New York: Liveright Publishing, 2017.
William H. Pruden III
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