Setting the stage for Ferguson: housing discrimination and segregation in St. Louis.

• Author: Oliveri, Rigel C.
• Position: Policing, Protesting and Perceptions: A Critical Examination of the Events in Ferguson

"What's past is prologue." (1)

1. INTRODUCTION

   The St. Louis Metropolitan area, which includes St. Louis City and St. Louis County (which itself contains ninety-one separate municipalities), is one of the most racially segregated places in the United States. (2) One common measure of segregation is called a dissimilarity index, which refers to the evenness with which two groups are spread across component geographic areas that make up a larger geographic entity. (3) An index score of greater than 60 is considered high or extreme. (4) In 2010, St. Louis's black-white index score was 70.6, the ninth highest in the country. (5) Another way to assess segregation is through the isolation index, which measures the extent to which members of a particular group are exposed only to each other. (6) The black-white isolation score for St. Louis in 2010 was 62, the eleventh highest in the country. (7)

   This is not an accident. A century's worth of discriminatory policies and practices have gone into making St. Louis City and its surrounding communities look the way they do today. Nor is this without consequence--hypersegregation and the discriminatory forces that cause it lead to a host of other problems, including wealth disparity, school segregation and inequality, and tensions between citizens and law enforcement. Perhaps most importantly, we become a nation of "two societies, one black, one white--separate and unequal." (8) Those famous words were written in 1968 by the National Advisory Commission on Civil Disorders, which was formed to address the urban riots of the late 1960s. Those riots occurred in highly segregated communities across the United States and, in many, the triggering event was an act of police brutality against black residents. The Commission warned that more violence would ensue if segregated living patterns, racialized policing, and overall inequality persisted. And though much has changed in the ensuing decades, the recent events in Ferguson, Missouri, demonstrate that too much has remained the same.

   It might be tempting to view what happened in Ferguson as a policing problem, one of the many tragic instances of white police officers shooting unarmed black men and boys. Certainly, this is an important piece of the story and one which will be explored elsewhere in this Symposium. Some have described the response--weeks of peaceful protests, but also rioting, looting, arson, and property damage--as a symptom of community dysfunction, blaming poverty, poor schools, and lack of employment prospects. There may be truth to this description as well, but it remains an oversimplification. To truly understand the events of the fall of 2014, I submit that we have to look further back, to what might seem an unlikely source: housing discrimination.

   The history of St. Louis is replete with discriminatory housing laws, policies, and practices: racially restrictive covenants, redlining, blockbusting and white flight, and exclusionary zoning. While these were common in virtually every part of the United States, they were particularly egregious, widespread, and pervasive in industrial Midwestern cities like Chicago, Detroit, and St. Louis--which saw a large influx of blacks migrating from the south at the close of the nineteenth century. In fact, three of the most foundational housing cases originated in St. Louis. When we look closely at these cases--not just the legal principles that they established but the physical, racial geography of the homes, neighborhoods, and cities that were contested--we can see how they reflected the racist forces that shaped the reality of modern metropolitan St. Louis. This can give us insight into what happened in Ferguson and why.

2. A STORY OF SEGREGATION, IN THREE CASES

   1. Act 1: Shelley v. Kraemer (1948)

      The story begins a century ago, in 1915, when a group of St. Louis realtors created an organization, the United Welfare Association, in order to advocate for a racially exclusionary zoning ordinance. (9) The ordinance would bar blacks from living on blocks that were more than 75% white (and vice versa). (10) They succeeded in getting the measure placed on the ballot the following year. (11) The measure passed easily, and St. Louis became one of a handful of areas around the nation with such a law. (12) An identical law was struck down by the Supreme Court the following year as a violation of due process and property rights, in Buchanan v. Warley. (13)

      In the absence of explicit laws, the widespread practice of racially-restrictive covenants began, in which developers and neighborhood associations placed deed restrictions on properties, preventing them from being occupied by blacks. (14) This practice was promoted by realtors nationwide, but in St. Louis, the local real estate industry--which had pressed for the racial zoning measure--was particularly enthusiastic and organized in its support of covenants. (15) An association called the St. Louis Real Estate Exchange created a "Committee on the Protection of Property" whose purpose was to promote the use of covenants and to help with their enforcement. (16) This Committee provided a "Uniform Restriction Agreement" with model covenant language that was used in approximately 85% of the restrictive agreements in force. (17) Members went door-to-door to help organize neighborhood associations for the purposes of enacting restrictive covenants. (18) The Exchange was also a formal party to most of the covenants, and it provided legal assistance to the neighborhood associations when it came time to enforce the covenants in court. (19)

      Restrictive covenants also became part of federal mortgage policy, as carried out by the Home Owners Loan Corporation ("HOLC") and the Federal Housing Administration ("FHA"). (20) From their creation in the mid-1930s through the Second World War, these agencies backed the financing of between one-quarter to one-half of all new home sales. (21) The FHA underwriting manual stated that "protection against some adverse influences," such as "the ingress of undesirable racial or nationality groups," must be obtained by "proper zoning and deed restrictions." (22) "Restrictive covenants should strengthen and supplement zoning ordinances," the manual suggested, and are "apt to prove more effective than a zoning ordinance in providing protection from adverse influences." (23) The FHA specifically recommended restrictions against "occupancy of properties[,] except by the race for which they were intended." (24)

      Meanwhile, the HOLC drafted a series of "residential security maps" which were intended to guide mortgage lending activity. (25) While these maps took into account factors such as the age of housing stock, they were primarily guided by the racial composition of the neighborhoods. (26) In St. Louis, the existence of restrictive covenants helped an area gain a highly favorable A or B rating. (27) Majority black neighborhoods were given the lowest rating--D, for Hazardous--and colored red. (28) Racially transitional neighborhoods were given a C, for "definitely declining," and colored yellow. (29)

      All of these actions reflected the racist belief that the presence of blacks in a neighborhood would lower property values and bring with it crime and other nuisances. The result was that virtually all of St. Louis's black population was confined to just a few neighborhoods in the center of the City. (30) As these neighborhoods grew increasingly crowded, there was nowhere that black families could move. (31) The unavailability of mortgage capital in these neighborhoods further contributed to the plummeting of property values. With overcrowding and falling property values came the deterioration of housing stock, rising crime, and substandard city services. (32) The racist belief thus became a self-fulfilling prophecy.

      By 1945, roughly 300 neighborhood covenants were in force throughout the City. (33) That same year, J.D. and Ethel Shelley, a black couple, purchased a small rowhouse at 4600 Labadie Avenue in the Fairground District of St. Louis. (34) The houses in the neighborhood were subject to a covenant, which had been agreed upon by thirty out of the original thirty-nine property owners. (35) 36 37 The covenant prohibited any house from being occupied "by any person not of the Caucasian race" and specifically stated that it was intended to prevent "the occupancy as owners or tenants of any portion of said property for resident or other purpose by people of the Negro or Mongolian Race." (36) Louis and Fem Kraemer, a white couple who lived in the neighborhood, sued to enforce the covenant. (37)

      The Supreme Court of Missouri sided with the Kraemers, determining that the covenant was a valid agreement and that its enforcement by the court did not violate the Fourteenth Amendment, which only applied to "a state action exclusively." (38) Indeed, to hold otherwise, the court reasoned, would be "to deny the parties to such an agreement one of the fundamental privileges of citizenship, access to the courts." (39)

      The U.S. Supreme Court overturned the Missouri Supreme Court's decision, ruling that the coercive power of the courts to enforce the covenant was clearly state action, and thus subject to the Fourteenth Amendment. (40) Shelley v. Kraemer, which made restrictive covenants unenforceable throughout the United States, was thus one of the earliest and most important decisions in favor of the cause of fair housing. (41)

   2. Act 2: Jones v. Mayer (1968)

      While Shelley v. Kraemer was an unquestionable civil rights victory, nothing about the case stopped people and institutions from engaging in private acts of housing discrimination. Racially restrictive covenants were no longer enforceable by law, but people were still free to enter into such voluntary agreements, a point made clear by the Supreme Court opinion. (42) Sellers could--and did--simply refuse to sell their homes to minority buyers. (43)

      St. Louis real...