s av i n g t h e n e i g h b o r h o o d Racially Restrictive Covenants, Law, and Social Norms richard r.w. brooks & carol m. rose Saving the Neighborhood Saving the Neighborhood Racially Restrictive Covenants, Law, and Social Norms Richard R. W. Brooks Carol M. Rose Harvard University Press • Cambridge, Massachusetts, and London, England • 2013 Copyright © 2013 by the President and Fellows of Harvard College All rights reserved Printed in the United States of America Library of Congress Cataloging-in-Publication Data Brooks, Richard Rexford Wayne. Saving the neighborhood : racially restrictive covenants, law, and social norms / Richard Brooks and Carol Rose. pages cm Includes bibliographical references and index. ISBN 978-0-674-07254-1 1. Real covenants—United States. 2. Discrimination in housing—Law and legislation—United States. I. Rose, Carol M., 1940– II. Title. KF662.B76 2013 346.7304'36—dc23 2012034463 To Trudy Travers, a pioneer and game-changer; and to the memory of two norm breakers, with their own stubborn understandings of the American Dream, Carl Hansberry and Raphael Urciolo; and to the writer Rose Helper, wherever she may be, whose measured prose still scorches the page. Contents 1 Introduction: Recalling Racialized Property 1 2 Before Covenants 19 3 The Big Guns Silenced: How Racial Covenants Overcame 47 Major Objections from Constitutional Law, Property Law, and Corporations Law 4 Pushing Down the Ghosts: Covenant Development and 71 Unseen Legal Influences 5 The Calculus of Covenants 94 6 The Emergence of the Norm Breakers 114 7 The Great Dilemma for Legal Norms: Shelley and State Action 140 8 After Shelley: Reactions, Evasions, Substitutions 168 9 Changing Games in the Twilight of Covenants: Signals, 187 Tipping Points, and Quotas 10 Conclusion: Covenants’ Legacy 211 Notes 233 Acknowledgments 283 Index 285 Saving the Neighborhood