Shelley v. Kraemer and the Racial Covenants Still Written in Old Deeds

The house at 4600 Labadie Avenue in St. Louis is a modest two-family brick building, the kind found by the thousand across the city's north side. In 1945, J. D. Shelley and his wife, Ethel, bought it. They had come to St. Louis from Mississippi, and they wanted a place of their own. What they did not know, or did not think could stop them, was that a 1911 agreement signed by many of the owners on the block said that no part of the property could be occupied by "people of the Negro or Mongolian Race." Neighbors named Louis and Fern Kraemer, who owned property covered by the same agreement, went to court to have the Shelleys removed. A Missouri trial court declined to enforce the covenant, but the Missouri Supreme Court reversed and ordered the family out. The Shelleys took the case to Washington. In May 1948, the U.S. Supreme Court ruled in their favor, and they kept their home. The words of that covenant, and hundreds of thousands like it across the country, did not go away. Many are still written in deeds today.

In short: Racially restrictive covenants were clauses in deeds that barred sales or rentals to Black families and other groups. In Shelley v. Kraemer, the Supreme Court held that courts could not enforce them. The clauses are void, but they remain in many property records, and a growing number of states now let homeowners formally strike them.

How a covenant worked

A restrictive covenant is a promise attached to land. Covenants are common and mostly mundane: a promise not to build above a certain height, not to run a business from the house, to keep the lawn mowed. They "run with the land," meaning that they bind whoever owns the property later, not just the person who signed.

In the early twentieth century, real estate developers, neighborhood associations and individual owners used that legal tool to keep Black families out of white neighborhoods. Developers wrote the restrictions into the deeds of new subdivisions. Existing neighborhoods organized owners to sign agreements, like the one on Labadie Avenue, covering many lots at once. Some covenants also barred Asian, Jewish, Latino or other buyers; the language varied by region and by who was considered undesirable.

Covenants spread after the Supreme Court in 1917, in a case from Louisville called Buchanan v. Warley, struck down city ordinances that zoned neighborhoods by race. Cities could no longer do it by law. Private agreements did it instead. In 1926, in Corrigan v. Buckley, the Court dismissed a challenge to a covenant in Washington, D.C., which many took as a sign that such private agreements were beyond the Constitution's reach.

Covenants were promoted by the real estate industry and, for a time, by the federal government. The Federal Housing Administration's underwriting manual in the 1930s recommended restrictive covenants as a way to protect property values, and many new suburbs built with federally insured mortgages included them.

Covenants as a selling point

It is tempting to imagine covenants as the work of a few bigoted neighbors. In much of the country they were something more organized: a feature that developers advertised and buyers paid for.

In Kansas City, the developer J. C. Nichols built the Country Club District in the early twentieth century with detailed deed restrictions, including racial ones, and he became a national figure in the real estate industry. His approach, combining careful planning, homeowners associations and restrictive covenants, was copied in suburbs across the country. Brochures and advertisements for new neighborhoods in many cities promised buyers that the community was "restricted," a word everyone understood.

The logic was commercial as much as ideological. Real estate professionals of the era taught that the presence of Black residents lowered property values, and they built that belief into appraisal practice, lending standards and the deeds themselves. Because the belief was enforced at every level, it came true in the narrow sense that mattered to the market: a home in a restricted neighborhood was easier to finance and sell. The prejudice and the price reinforced each other.

That history is one reason the covenants were so widespread and so hard to dislodge. They were not a fringe practice. They were written by mainstream professionals, recorded by county clerks and, until 1948, enforced by courts.

The legal tool that never went away

The covenant itself, as a legal device, did not disappear with Shelley. It became the backbone of the modern homeowners association. Today tens of millions of Americans live in communities governed by covenants, conditions and restrictions that set rules on paint colors, fences, rentals, parking and much else.

Modern covenants cannot discriminate by race, religion, national origin or other protected traits; the Fair Housing Act forbids it. But housing advocates point out that some rules that are neutral on their face can still have exclusionary effects: minimum home sizes that rule out modest houses, bans on renting, or restrictions on the number of unrelated people who can live together. These rules are often lawful, and many have ordinary reasons behind them. They are worth watching, though, because the history of covenants shows how a private legal tool can shape who lives in a neighborhood as powerfully as any public law.

The road to the Supreme Court

The Shelleys' lawyer in St. Louis was George L. Vaughn, a Black attorney who argued that the covenant could not be enforced by a court without violating the Constitution. When the case reached the Supreme Court, it was considered alongside a companion case from Detroit, McGhee v. Sipes, in which Orsel and Minnie McGhee had bought a house covered by a similar restriction. Thurgood Marshall, then leading the NAACP's legal work, argued the McGhee case. Cases from Washington, D.C., including Hurd v. Hodge, were decided the same day.

The legal problem was a real one. The Fourteenth Amendment says that no state shall deny any person the equal protection of the laws. It restricts governments, not private individuals. A covenant is a private agreement. How could the Constitution reach it?

What the Court decided

Chief Justice Fred Vinson wrote the opinion for a unanimous Court in Shelley v. Kraemer. Three justices did not take part; it has long been reported that they owned property with covenants of their own, though they gave no public reason.

The Court accepted that private parties could make such agreements and that the agreements, standing alone, did not violate the Fourteenth Amendment. But a covenant has no force unless someone enforces it. When a state court orders a Black family out of a house they have bought, because of their race, the state itself is acting. The Court held that judicial enforcement of racially restrictive covenants was state action that denied equal protection, and so courts could not enforce them.

That distinction, between making a covenant and enforcing it, is the heart of the case. It meant covenants remained legal to write, for the moment, but they lost their teeth. A family who bought a covered home could not be evicted by a court.

In 1953, in Barrows v. Jackson, the Court closed a related door, holding that a court also could not award damages against a white owner who sold to a Black buyer in breach of a covenant. Without injunctions or damages, a covenant became practically unenforceable.

Why Shelley did not end segregation

It would be satisfying to say that Shelley ended housing discrimination. It did not, for several reasons.

First, covenants kept being written. Some white buyers and sellers honored them voluntarily, and real estate agents steered Black families away from covered neighborhoods. A covenant that no court would enforce could still work as a signal and a threat.

Second, other tools did much of the same work. Real estate boards maintained rules discouraging agents from selling to Black families in white areas. Lenders and federal agencies, as covered elsewhere on this site, steered credit away from Black neighborhoods. Some neighborhoods turned to violence and harassment against Black families who moved in.

Third, the federal government kept insuring mortgages on covenanted property for a time after the ruling, though the FHA changed its policies in the years that followed.

Real change in the law came twenty years later. The Fair Housing Act of 1968 made it illegal to discriminate in the sale or rental of housing because of race, and it also made it illegal to publish statements indicating a racial preference. A covenant written after 1968 was therefore not just unenforceable but unlawful. That same year, in Jones v. Alfred H. Mayer Co., the Supreme Court held that an 1866 civil rights law barred private racial discrimination in the sale of property.

For the families who lived through the decades before 1968, the legal sequence mattered less than the daily reality: a ruling that protected them in court did not open doors that agents, lenders and neighbors kept closed.

Why the words are still in the deeds

Here is the part most homeowners do not know. A covenant written in 1911 or 1940 does not disappear when it becomes void. Deeds are recorded documents, and property records keep the original language. When a house is sold, the title documents often refer back to earlier recorded restrictions. A buyer today can find, in the stack of closing papers, a clause saying the property may not be sold to Black people.

The covenants are legally void. They have no effect on who can buy, sell or live in a home. But they are still there, and their presence has prompted two kinds of response.

The first is documentation. University-based research projects in several cities have searched property records to map where covenants were used. The best known is Mapping Prejudice at the University of Minnesota, which used volunteers to read tens of thousands of deeds in the Minneapolis area. Similar efforts have followed in Washington state, St. Louis and elsewhere. The maps show how widespread covenants were, including in many suburbs that like to think of themselves as never having been segregated.

The second is removal. A growing number of states have passed laws letting homeowners formally strike or disavow racial covenants in their property records, often for free and without a lawyer. Minnesota passed such a law in 2019, and Washington, California and other states have adopted their own versions. Some require county recorders or homeowners associations to identify and remove the language.

The debate over erasing history

There is a thoughtful objection to removal, and it comes from people who care deeply about racial justice. If covenants are struck from the records, the evidence of what was done disappears. Historians, researchers and families who want to understand how their neighborhoods became segregated rely on those documents. Erasing them, this argument goes, lets communities forget.

Most states that allow removal have answered this by keeping the original documents in the public record while recording a new document that strikes the language from the property's current title. The history stays in the archive; the offensive clause stops being part of the deed a homeowner inherits. That seems to me the right balance, but reasonable people still argue about it, and some advocates prefer to leave the language visible with a disclaimer.

There is another objection, from a different direction: that the effort is symbolic, because the covenants have no legal force anyway. That is true as far as it goes. But symbols matter to the people who have to sign closing papers with that language in them, and the documentation projects have produced real knowledge about how segregation was built. Knowing that your suburb was covenanted is a good start to understanding why it looks the way it does.

What the Shelleys' case teaches about change

The Shelleys were not activists when they bought the house on Labadie Avenue. They were a working family who wanted a home and refused to give it up when their neighbors went to court. Their persistence, joined to the long legal strategy of Black lawyers in St. Louis and the NAACP, changed constitutional law. Many of the most important civil rights cases began the same way, with ordinary people who decided not to move when they were told to.

What you can do

The Shelleys won the right to stay in their home. The work of clearing the paper trail, and the patterns it created, is still going on.

• Read your own deed. If you own a home, look at your title documents or ask your county recorder for the chain of title. If you find a covenant, check whether your state lets you strike it, and how.
• Ask your state legislators about a removal law. If your state has none, find your lawmakers with the representatives lookup and ask them to sponsor one.
• Support fair housing groups. Discrimination did not end with covenants. The organizations directory lists fair housing and civil rights nonprofits in every state, many of which help people file complaints.
• Learn how covenants shaped your area. The racial justice page and the housing and homelessness page collect coverage on segregation, lending and the efforts to undo them.

The house on Labadie Avenue is now a National Historic Landmark. The deeds across the street, and across the country, still carry the old words. It is within ordinary people's power to change that.