A Shadow of Ohio's Racist Past? Or a Lingering, Tangible Impact? An Examination of Unenforceable Restrictive Covenants

AuthorThomas Shepherd
PositionJ.D. Candidate, Capital University Law School, 2020; B.A., The Ohio State University, 2014
Pages43-73
A SHADOW OF OHIO’S RACIST PAST? OR A LINGERING,
TANGIBLE IMPACT? AN EXAMINATION OF
UNENFORCEABLE RESTRICTIVE COVENANTS
THOMAS SHEPHERD*
I. INTRODUCTION
On April 11, 1968, President Lyndon B. J ohnson signed the Fa ir
Housing Act into law, which prohibited discrimination in the sale or rental
of housing based on race, color, religion, . . . or national origin.
1
Twenty
years earlier, in 1948, the Supreme Court opinion in Shelley v. Kraemer,
stated that it is a violation of the Fourteenth Amendment for state courts to
enforce private agreements excluding people from the use or occupancy of
real estatebased on race or color.
2
Ohio followed the federal government
through both the judiciary and the legislature in ensuring that Ohioans aren’t
subject to housing discrimination on the basis of race.
3
It’s no secret, though, that up until these protections were put in place
by first the federal government and then by the state of Ohio, non-white
minorities were subject to discrimination of all kinds, both north and south
of the Mason-Dixon line. Much of the animus toward these groups was
preserved in deeds recorded prior to the implementation of the
aforementioned protections in the form of restrictive covenants, which
prevented owners of land from renting or selling to others based on the
* J.D. Candidate, Capital University Law School, 2020; B.A., The Ohio State University,
2014. Many thanks to all of those who’ve guided me and given me their feedback, including
those at the Franklin County Recorder’s Office, Professor Dennis Hirsch, and many more
friends and colleagues who lent an ear. This is a topic I believe everyone should be aware
of, particularly those who don’t belong to a group historically impacted by it. The insight of
others has helped me understand the issue on a deeper level. I’d finally like to note that the
topic of housing discrimination is not limited to the arena of race. While all instances of
housing discrimination are an important piece of history (based on nationality, sex, religion,
sexual orientation, etc. ), and some continue to this day, this article focuses on housi ng
discrimination on the basis of race, as it is the most pervasive in the nation’s hist ory.
1
Fair Housing Act, 42 U.S.C. § 3604 (2012).
2
Shelley v. Kraemer, 334 U.S. 1, 1, 2021 (1948).
3
OHIO REV. CODE ANN. § 4112.02(H) (LexisNexis 2019); See Porter v. Oberlin, 205
N.E.2d 363, 368 (Ohio 1965).
44 CAPITAL UNIVERSITY LAW REVIEW [48:43
renter’s or buyer’s race.
4
Thankfully, this reprehensible language is given
no legal effect today.
5
However, a deed is a legal document relied on by
transacting parties with language that, if changed, can have big
implications
6
; it has been recognized for centuries as an instrument that
conveys some interest in property.
7
For this reason, many states have left
deeds untouched, even though there is language in some that is
unenforceable by any court in the United States.
8
There has been a growing movement throughout the United States to
address these restrictive covenants by removing (or allowing the owner or
occupant to remove), censoring, or otherwise editing deeds in the recording
system.
9
Some states have considered legislation to achieve this goal.
10
In
Ohio, at least one person has unsuccessfully attempted to remove restrictive
4
Judy L. Thomas, ‘Curse of Covenants’ Persists Restrictive Rules, While
Unenforceable, Have Lingering Legacy, KAN. CITY STAR (July 27, 2016), https://www.
kansascity.com/news/local/article92156112.html [https://perma.cc/YUC9-YCD4].
5
Id.
6
See Muirh eard Hui LLC v. Forest. Pres. Dist., 2018 IL App (2d) 170835, ¶ 24, 117
N.E.3d 1166, 1171 (Permissive removal of a restrictive covenant allowed the District to “use
the property however it saw fit.”)
7
Deed, BLACKS LAW DICTIONARY (9th ed. 2010).
8
See Randy Furst, Measure Allowing Minnesota Homeowners to Renounce Racist
Language on Titles Advances, STAR TRIB. (Jan. 22, 2019), http://www.startribune.com/
measure-allowing-minnesota-homeowners-to-repudiate-racist-language-on-deeds-
advances/504713512/ [https://perma.cc/2T5Z-87Z7]; Elliot Njus, Racist Restrictio ns Linger
in Property Deeds, and Historians Want Help Finding Them, OREGONIAN (May 22, 2018),
https://www.oregonlive.com/expo/erry-2018/05/fcd13cb4387071/
racist_restrictions_now_illega.html [https://perma.cc/M5LF-ED5G]; Thomas, supra note 4;
Opinion, Raci st Deeds Part of Ugly History, COLUMBUS DISPATCH (July 27, 2016),
https://www.dispatch.com/content/stories/editorials/2016/07/27/racist-deeds-part-of-ugly-
history.html [https://perma.cc/Q24A-HY6X].
9
See Furst, supra note 8; Njus, supra note 8; Editorial, Here’s Why Getting Rid of
Unenforceable Raci al Housing Covenants Matters, BALT. SUN (Sept. 14, 2017),
https://www.baltimoresun.com/news/opinion/editorial/bs-ed-0915-racial-covenants-
20170913-story.html [https://perma.cc/72CQ-H4U2]; Thomas, supra note 4; Opinion, supra
note 8.
10
See, e.g., S. 1844, 20132014 Leg., Reg. Sess. (N.Y. 2013).; CAL. GOVT CODE
§§ 12956.1.2 (West 2019); COLO. REV. STAT. § 38-30-169 (2019).

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