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The Misunderstood Consequences of Shelley v. Kraemer
Extended Abstract
Yana Kucheva Department of Sociology, University of California – Los Angeles California Center for Population Research
Richard Sander UCLA School of Law
Shelley v. Kraemer (1948) is one of the most celebrated decisions in the history of the United States Supreme Court. By holding that neither federal nor state courts could enforce a restrictive covenant to evict a black homebuyer, the Court signaled its willingness to use the Fourteenth Amendment to strike down even indirect governmental actions that fostered racial segregation. No one questions the legal significance of Shelley; in legal circles, it is viewed as a critical precursor to Brown v. Board of Education (1954). But housing segregation scholars have tended to minimize Shelley’s practical importance. Some have argued that Shelley was largely superfluous, because by the late 1940s restrictive covenants were often dismissed by the courts or circumvented by real estate agents. Others have suggested that Shelley was ineffective because blacks lacked the capacity to enforce their rights and because white neighborhoods and institutions had so many other methods available to stop black entry. Oddly enough, no one (to our knowledge) has ever undertaken an empirical examination of how Shelley changed the housing opportunities of affected minorities – blacks in particular, but Jews, Asians, and Hispanics as well. In this paper, we attempt such an evaluation, and we find strong support for the proposition that Shelley had a rather dramatic impact upon the housing opportunities available to blacks. Just as important, we find that this shift in opportunities changed the dynamics of black ghettos in ways that have never been understood, and which have important implications for basic debates about urban policy and the black underclass.
The Function of Racially Restrictive Covenants in the Interwar Years
Housing segregation was a comparatively minor issue for American blacks before World War I. Not only was the black population overwhelmingly rural but, most urban blacks lived in the South, where whites generally relied on rigid social codes and Jim Crow laws to enforce social separation. For blacks who lived in northern urban areas in 1910, segregation levels were moderate and not dramatically higher for blacks than for, say, Italian or Polish immigrants. By 1920, however, the situation had changed decisively. The beginning of war in Europe in 1914 fueled large increases in American manufacturing, and a new awareness among southern blacks that genuine economic opportunities awaited them in the North. Some northern factory owners, enticed by the cheapness of black labor and the possibility of using black workers to break the growing power of white unions, actively recruited blacks in the South to migrate north. The black urban northern population roughly doubled between 1910 and 1920. In a number of major cities, blacks by 1920 were the single largest ethnic minority. Since new arrivals in cities tended to cluster close to existing ethnic concentrations, many communities that had been reasonably integrated in 1910 became predominantly black by 1920. White workers often intensely resented
the arriving blacks, for any number of reasons: economic competition, anger at blacks’ willingness to work as “scabs,” cultural differences, and general concern about black “invasion” into new neighborhoods. When racial tensions erupted into the massive Chicago race riot of 1919, it seemed clear to nearly everyone that “something” must be done. For many white elites, and very widely in ethnic neighborhoods close to black concentrations, a clear delineation of “black” and “white” areas seemed an obvious strategy.
How to accomplish housing segregation was not so obvious. A few southern and border cities had passed “racial zoning” laws in the 1910s, but in 1918 the Supreme Court held (in Buchanan v. Warley) that such laws were illegal. Although it is possible that some southern cities continued to use city zoning powers to create racial districts, Buchanan eliminated this possibility in large northern cities. Mobilizing the housing industry, including real estate agents, mortgage lenders, and major apartment owners, was an alternative strategy. This became the dominant practice, and probably constituted the single greatest set of forces behind the creation of black ghettos. During the 1920s, segregation levels increased dramatically in nearly every major northern city; by 1930, all of these cities had well defined black ghettos.
What was the role of racially restrictive covenants in this process? As a tool for quickly initiating organized discrimination, restrictive covenants were awkward, if not completely impractical. Covenants were mutual agreements among all the property owners in a particular geographic area to abide by certain restrictions in the use of their property. To be binding, covenants required the initial consent of every property owner affected by the agreement – though once this was obtained, and provided various legal limitations were observed, the covenants were binding on future owners. But getting initial consent was expensive and time- consuming, unless the land was “bound” while it was still undeveloped, and subsequently sold in small parcels with the covenants already established. Thus, homeowners in developed areas that were already somewhat integrated, or that seemed likely to become integrated soon, would be very loath to bind themselves to a restriction that might make one’s property untransferable in the future. Racially restrictive covenants were more practical as a sort of “second line of defense” – adopted in areas that wanted to protect themselves from long-term threats of racial “invasion”.
But while racially restrictive covenants probably played only a secondary role in the initial construction of ghettos, they plausibly became centrally important as established ghettos began to expand. In the typical northern city, intense black segregation was an accomplished fact by 1930. But during the 1930s, and especially during World War II, black populations in these cities grew dramatically – generally doubling between 1930 and 1945. This meant that existing black areas became increasingly overcrowded, that black housing prices rose relative to white housing prices, and that the economic pressure to “convert” white neighborhoods near ghettos into black neighborhoods became, in many cities, quite intense. In this environment, racially restrictive covenants could be a potent force. The covenants would be a legal means of preventing individual white homeowners in areas close to black concentrations from selling their property to black buyers or “blockbusting” realtors who would often be willing to pay a large premium. In other words, racially restrictive covenants could create a binding “cartel” of white owners who would resist individual economic incentives to sell, and thus make possible a dual
emigration, if it occurred, would have started during the 1960s, when the federal and many state governments began to move directly against housing discrimination. But if our hypothesis is correct, the key decade in this process may have been the 1950s.
Methods and Data
This paper examines the spatial changes of minority residential patterns precipitated by Shelley as well as the effect that the case had on within-group economic segregation. Data for this project come from the 1940, 1950, 1960 and 1970 US Decennial Censuses. We examine changes in key demographic, social and economic characteristics of census tracts across northern US metropolitan areas and model these changes using both descriptive statistics and regression analysis. For all analyses, we normalize census tract boundaries to the lowest common area using published boundary change tables, so that geographic variation in the size and shape of census tracts over time does not influence the analysis. We accessed census tract data through the National Historic Geographic Information System (NHGIS) archive, which houses the digitized versions of historic Census data. Supplementary homeownership and home value analyses are based on data from the Integrated Public Use Microdata Series (IPUMS) – USA, which is a database of high precision samples of the American population drawn from federal decennial censuses.
Each of the hypotheses sketched out in the last section has a testable empirical implication. Our general approach is threefold. First, we treat the 1940-50 period as a “pre- Shelley” era and the 1950-60 period as a “post-Shelley” era. We examine the degree to which changes in the 1950s, compared to the 1940s, occurred (at the metropolitan level) in the direction predicted by our hypotheses in a large sample of major northern cities. The tables and maps appended to this abstract illustrate some of our initial findings. We have found, for example, that the geographic size of predominantly black areas in these cities did, indeed, accelerate dramatically in the 1950s relative to the 1940s, that middle-class blacks were the dominant occupiers of the newly acquired “black” housing (Figures 1 and 2), and that economic segregation levels within the black community did increase sharply in the 1950s (Table 3), even as overall black/white segregation levels remained essentially unchanged (Table 1).
Second, we use tract-level regression analysis to test whether the neighborhoods entered by blacks during the1950s were different from those entered in the 1940s in ways that fit out hypotheses: for example, were they areas that had larger proportions of single-family homes? Were they areas adjacent to middle-class portions of the existing black ghetto? Specifically, we will model the percent minority residents within a neighborhood in 1950 as well as 1960 using information on the characteristics of the same neighborhood ten years prior, such as the percent minority, the distance to the nearest census tract with high minority concentration, the percent black in adjacent tracts, the percent of residents who have resided in the same unit for more than 20 years as well as for less than a year, and the percent owner-occupied housing. This regression model will allow us to trace any changes in the determinants of racial succession in the period after Shelley compared to the one before.
Third, we use metropolitan-level regression analysis to test whether there was an association between urban areas that made greater use of restrictive covenants, and areas that saw a more dramatic shift, in the ways that we have described, from the pre-Shelley to post- Shelley eras. While there is no complete analysis of the extent of restrictive covenants across all cities, there are a number of primary and secondary sources that allow us to roughly group urban areas according to “high”, “medium”, and “low” use of restrictive covenants. Our hypotheses predict that the nature and pace of change in the 1950-60 decade, relative to the 1940-50 decade, should be much more sharply distinguished in cities with high use of racially restrictive covenants.
Conclusion
While Shelley v. Kraemer is one of the seminal civil rights cases of the US Supreme Court, some have argued that is had no practical implications for the dynamics of racial segregation. Nevertheless, preliminary evidence suggests that it had a dramatic impact upon the housing opportunities available to blacks as well as upon the dynamics of black ghettos. By examining the spatial changes of minority residential patterns precipitated by Shelley as well as the effect that the case had on economic segregation, this paper sheds light on basic debates about urban policy and the black underclass.
- 1940 White & Black 0.94 0.84 0. Chicago Detroit St. Louis - White & Russian 0.56 0.6 0. - White & Hispanic 0.67 0.54 0.
- 1950 White & Black 0.91 0.83 0. - White & Russian 0.53 0.6 0. - White & Hispanic 0.61 0.49 0.
- 1960 White & Black 0.92 0.84 0. - White & Russian 0.54 0.51 0. - White & Hispanic 0.76 0.78 0.
- 1940 White Chicago Detroit St. Louis - Non-White - Total
- 1950 White - Non-White - Total
- 1960 White - Non-White - Total - 0-2000 0.12 0.2 0.27 0. 1950 0-2000 2000-3500 3500-5000 5000-7000 7000+ - 2000-3500 0.12 0.13 0.2 0. - 3500-5000 0.2 0.13 0.13 0. - 5000-7000 0.27 0.2 0.14 0. - 7000+ 0.29 0.23 0.18 0. - 0-3000 0.16 0.27 0.35 0. 1960 0-3000 3000-5000 5000-7000 7000-10000 10000+ - 3000-5000 0.16 0.18 0.24 0. - 5000-7000 0.27 0.18 0.15 0. - 7000-10000 0.35 0.24 0.15 0. - 10000+ 0.44 0.35 0.24 0. - 0-5000 0.18 0.27 0.38 0. 1970 0-5000 5000-7000 7000-10000 10000-15000 15000+ - 5000-7000 0.18 0.18 0.29 0. - 7000-10000 0.27 0.18 0.17 0. - 1000-1500 0.38 0.29 0.17 0. - 15000+ 0.49 0.4 0.29 0.
- Fig 1. Change in Number Non-White, 1950-60 Fig 2. Percent Black with Income $10K+,
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