Critical Race Theory Is Not Just A Theory

Racial covenants — which barred Black people and other minorities from living in white neighborhoods — are still on the books in nearly every state.

They're unenforceable. But if you check your deed, you may find one. And they can be hard to remove.

https://t.co/NWeXJZPS1s

— NPR (@NPR) November 17, 2021

"There's still racism very much alive and well in Prairie Village," Selders said about her tony bedroom community in Johnson County, Kan., the wealthiest county in a state where more than 85% of the population is white.

Well, yeah, but I wouldn't say it's because of a racial covenant buried in a chain of title.

In this moment of racial reckoning, keeping the covenants on the books perpetuates segregation and is an affront to people who are living in homes and neighborhoods where they have not been wanted, some say. 

Gotta say, I'm not seeing that argument.  It hardly strikes me as the most important perpetuation of segregation in the land, since such covenants are unenforceable, as shown by the people previously banned by such covenants now owning that property.  Those covenants were a matter of government enforcement.  Without that enforcement, those covenants were meaningless. Frankly, we have more serious problems of racism and segregation in the land than in the title chains to the land; such as the continuing consequences of those now defunct covenants, those vile deeds which benefited some of us at the direct expense of others of us. However, these covenants prove the reality of critical race theory, and the pervasiveness of racism in the American legal system; which is the entire subject of inquiry and analysis of CRT.

Getting a racial covenant out of your chain of title is a long, arduous task that ultimately only gains you a sense of moral superiority, and not much more.  I understand if people want to do it.  I don't understand the sense of comfort it brings, not because racial covenants are not offensive and vile, but because they are as buried in the records as the dead of the Civil War.  Is there a racial covenant in your chain of title?  Do you want to go looking for it?  Do you have the leisure time and the desire?

Okay. You're probably also a vegan, too. Keep it to yourself, and we’ll get along fine.

I'm being snide because the idea of removing something that is offensive in a set of deed records dating back to the original government that granted title to someone sometime somewhen seems to me to be the ultimate princess and the pea story.  What if you find out a former slave owner is in your chain of title?  Will that keep you up nights?  It would be worse, becuase there's absolutely nothing you can do about that.

It's impossible to know exactly how many racially restrictive covenants remain on the books throughout the U.S., though Winling and others who study the issue estimate there are millions. The more than 3,000 counties throughout the U.S. maintain land records, and each has a different way of recording and searching for them. Some counties, such as San Diego County and Hennepin County, which includes Minneapolis, have digitized their records, making it easier to find the outlawed covenants. But in most counties, property records are still paper documents that sit in file cabinets and on shelves. In Cook County, Illinois, for instance, finding one deed with a covenant means poring through ledgers in the windowless basement room of the county recorder's office in downtown Chicago. It's a painstaking process that can take hours to yield one result.

That's the pervasiveness of racism in America, and we don't remove it by erasing some language most people don't even know exists.

When the Great Migration began around 1915, Black Southerners started moving in droves to the Northeast, Midwest and West. Their hope was for a better life, far away from the Jim Crow laws imposed on them by Southern lawmakers. Blacks soon realized, though, that segregation and racism awaited them in places like Chicago, Washington, D.C., and Los Angeles, particularly in housing. They often were forced to live in overcrowded and substandard housing because white neighborhoods didn't want them.

Chicago, which has a long history of racial segregation in housing, played an outsize role in the spread of restrictive covenants. It served as the headquarters of the National Association of Real Estate Boards, which was a "clearinghouse" for ideas about real estate practice, Winling said.

"This was kind of ... like a nerve center for both centralizing and accumulating ideas about real estate practice and then sending them out to individual boards and chapters throughout the country," he said.

In 1917, the U.S. Supreme Court ruled that local governments could not explicitly create racial zones like those in apartheid South Africa, for example. But another Supreme Court case nine years later upheld racial covenants on properties. In Corrigan v. Buckley, the high court ruled that a racially restrictive covenant in a specific Washington, D.C., neighborhood was a legally binding document between private parties, meaning that if someone sold a house to Blacks, it voided the contract, Winling said. That ruling paved the way for racially restrictive covenants around the country. In Chicago, for instance, the general counsel of the National Association of Real Estate Boards created a covenant template with a message to real estate agents and developers from Philadelphia to Spokane, Wash., to use it in communities.

"So we see a standardization and then intensification of the use of covenants after 1926 and 1927 when the model covenant is created," Winling said.

Chicago also was home to one of the earliest landmark restrictive-covenant cases in the country: Hansberry v. Lee. Carl Hansberry, a Black real estate broker and father of playwright Lorraine Hansberry, bought a home in the all-white Woodlawn neighborhood on the city's South Side in 1937. After a neighbor objected, the case went to court — ultimately ending up before the U.S. Supreme Court. Hansberry prevailed. The 1940 decision eventually led to the demise of the racist legal tool by encouraging more legal challenges against racial covenants. The family never returned to the three-story brick home now known as the Lorraine Hansberry House, and renters now occupy the run-down property. The city designated it a landmark in 2010.

Meanwhile, in south St. Louis, developers baked racial restrictions into plans for quiet, tree-lined subdivisions, ensuring that Black — and in some communities, Asian American — families would not become part of these new neighborhoods.

That all changed in 1948 when J.D. and Ethel Shelley successfully challenged a racial covenant on their home in the Greater Ville neighborhood in conjunction with the NAACP Legal Defense Fund. The family, like countless other Blacks, had come to St. Louis from Mississippi as part of the migration movement. After buying a home from someone who decided not to enforce the racial covenant, a white neighbor objected. The man sued the Shelleys and eventually won, prompting them to appeal to the U.S. Supreme Court, which ruled that the state could not enforce racial covenants. The landmark civil rights case became known as Shelley v. Kraemer.

But things didn't change overnight.

"After Shelley versus Kraemer, no one goes through and stamps 'unenforceable' in every covenant," said Colin Gordon, a history professor at the University of Iowa. "They just sit there."

Yes, they do; and that's the problem of race in America, a problem we created law by law, word by word; a wall we built brick by brick.  And even as we tear down the walls, the bricks, the debris, the rubble, is still there.  Removing the language from deeds a century old is not removing the impact of the law, or removing the gross disadvantages placed on blacks by the laws of this country.  Facing the consequences of what we have done, accepting the premise of CRT, is a much more valuable and redemptive effort than rooting out langauge nobody follows anymore.  You can find properties in Texas that have title chains dating back to the King of Spain, who asserted authority over lands from across the ocean which were owned by nobody, because no legal system established such ownership in this country. Such a raw assertion of power effectively dispossessed the people who were already here  but had no need of such a legal system. Does that kind of thievery keep anybody up at nights?  Does anybody know about it?  Does anybody care?

There's a great deal we can learn from this, from history that isn't "hidden" (I learned about racial covenants and Shelley in ConLaw my first year of law school.  Nobody turned out the lights first, or swore us to secrecy in a blood oath.).  We should certainly learn about this.  But what we should learn is the concern for these laws woven into our legal, and therefore social and economic and even religious, history.

Because that's the purpose of CRT; not to blame white people for the sufferings of black people, but to bring these sins (I use the Christian term intentionally) to light.  We did this; we prospered from this ("we" being white people like me and my ancestors).  This is not far away and from centuries long gone and buried now with the foundations of the buildings that were slave markets or the rifles of the Civil War turned into a fence that still stands around President Grant's farm.  This is from the nearer past, and we should confront it, from the century in which most of us were born.  But we shouldn't think by erasing some lines in some documents no one else will ever read, that we have struck a blow against racism in our little worlds.

The work is much, much harder than that.