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

• Author: Thomas Shepherd
• Position: J.D. Candidate, Capital University Law School, 2020; B.A., The Ohio State University, 2014
• Pages: 43-73

A SHADOW OF OHIO’S RACIST PAST? OR A LINGERING, TANGIBLE IMPACT? AN EXAMINATION OF UNENFORCEABLE RESTRICTIVE COVENANTS THOMAS SHEPHERD * I. I NTRODUCTION On April 11, 1968, President Lyndon B. Johnson signed the Fair 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 estate” based 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 housing discrimination on the basis of race, as it is the most pervasive in the nation’s history. 1 Fair Housing Act, 42 U.S.C. § 3604 (2012). 2 Shelley v. Kraemer, 334 U.S. 1, 1, 20–21 (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 Muirheard 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 , BLACK’S 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 Restrictions 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, Racist 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 Racial 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, 2013–2014 Leg., Reg. Sess. (N.Y. 2013).; CAL. GOV’T CODE §§ 12956.1–.2 (West 2019); COLO. REV. STAT. § 38-30-169 (2019). 2020] UNENFORCEABLE RESTRICTIVE COVENANTS 45 covenants containing racist language through the courts in Mason v. Adams County Recorder . 11 There are, no doubt, many valid reasons for wishing to remove this antiquated, offensive language from real, functioning legal documents. For some, such as Darryl Mason, these racially restrictive covenants “creat[e] a . . . feeling that [non-Caucasians] are unwelcome . . . .” 12 Indeed, there are a myriad of examples besides language in a deed that demonstrate why non-white minorities might feel unwelcome; in Upper Arlington, a suburb of Columbus, Ohio, an unknown white jogger told an African-American man walking his dogs “I don’t trust black people with those dogs,” for seemingly no other reason than discomfort with an African-American man in his neighborhood. 13 This incident did not occur prior to Shelley v. Kraemer , nor prior to the Fair Housing Act of 1968, but in 2017, nearly fifty years after the Fair Housing Act’s passage. 14 It is understandable that seeing racist language in the deed to one’s home could exacerbate this feeling of being an outsider. However, removing this language is no simple task. Some skeptics note that this process would “require [county] recorders to make their own interpretation of what’s offensive” if they go about redacting documents. 15 There is also the extremely burdensome administrative and economic aspect of filing through thousands of deeds written prior to the Fair Housing Act, and going through the process of editing the document so that the language is rewritten or censored. 16 Still other skeptics worry that this part of history, while not something to be proud of, is part of history nonetheless, and “it shouldn’t be whitewashed.” 17 In any case, Ohio has signaled that the unenforceable restrictive covenants will remain part of the record for the foreseeable future, as any potential remedy from the legislature or the judiciary has failed to 11 See Mason v. Adams Cty. Recorder, 901 F.3d 753 (6th Cir. 2018). 12 Id. at 755. 13 Editorial, Inclusion Movement Grows in Upper Arlington , COLUMBUS DISPATCH (Jan. 19, 2018), https://www.dispatch.com/opinion/20180119/editorial-inclusion-movement-grows-in-upper-arlington [https://perma.cc/PXM4-YAPE]. 14 Id. 15 Opinion, supra note 8. 16 Id. 17 Id. 46 CAPITAL UNIVERSITY LAW REVIEW [48:43 materialize. 18 The purpose of this article is to examine why attempts to remove racially restrictive covenants have so far been stalled in Ohio and to evaluate the arguments both in favor of and against implementation of such a plan. This article will then briefly explore other ways to address the housing discrimination that undoubtedly has survived beyond the days of restrictive covenants being enforced by the state of Ohio. Attacking housing discrimination achieved through means other than racially restrictive covenants would be a more effective way to assure more equitable housing in 2020. II. A B RIEF H ISTORY Before discussing how racially restrictive covenants came to be unenforceable, it is helpful to first examine how they came to be so common in America and specifically what they restricted. In the early twentieth century, “[d]evelopers of [affluent] residential areas began to use them regularly,” in addition to restrictive covenants that controlled other matters such as land use. 19 These “formal, legal route[s] to enforce residential segregation . . . flourished in new subdivisions and . . . neighborhoods” over the first half of the twentieth century, aided in their implementation “by real estate professionals, banking institutions, and . . . [even] the New Deal’s Federal Housing Administration.” 20 A good example of the language contained in these covenants lies in Shelley v. Kraemer , the very case that invalidated them. 21 The provision at issue there limited occupancy of the property to those of the Caucasian race, and specifically prohibited “people of the Negro or Mongolian Race” from occupying the premises for any period of time. 22 As stated above, since the implementation and proliferation of these devices known as racially restrictive covenants, there have been a number of developments in removing the state as an active player in discriminatory housing practices. The mechanics and legal arguments of the decision in 18 Mason v. Adams Cty. Recorder, 901 F.3d 753, 755 (6th Cir. 2018) (affirming the lower court’s conclusion that the plaintiff lacked standing to challenge the unenforceable restrictive covenants under the Fair Housing Act). No legislation has been successful in the Ohio General Assembly that could retroactively alter deeds containing unenforceable restrictive covenants. 19 RICHARD R.W. BROOKS & CAROL M. ROSE, SAVING THE NEIGHBORHOOD 3 (2013). 20 Id. at 4. 21 See Shelley v. Kraemer, 334 U.S. 1, 4–5 (1948). 22 Id. 2020] UNENFORCEABLE RESTRICTIVE COVENANTS 47 Shelley v. Kraemer , the Fair Housing...