From the nation’s founding through the twentieth century, our nation’s real estate legal systems were used to discriminate against minority populations. There are many examples of local, state, and even the federal government using eminent domain powers, government contracting, and even loan guarantee programs to segregate neighborhoods. Supreme Court decisions and several federal civil rights laws enacted in the 1960s began the process to eliminate this discrimination and grant all Americans the blessings of full property ownership and use. Several governmental entities are taking steps to reconcile past discrimination and real estate attorneys can play a critical role in these efforts. Considering the continued public discourse about reckoning with historic and continued impacts of that period of structural and systemic racism, it seemed fitting to recount three recent examples of reconciling past wrongs against African American landowners, relevant to real estate lawyers practicing in this space. These examples provide a lens into our nation’s past and the use of our legal system to restrict the use of land and even seize real estate owned by African Americans.
Acknowledging History of Discrimination
First, reconciliation begins with the full knowledge of the history of the use of real estate laws to achieve discriminatory aims. These stories should be told and retold so that we never forget that the law can be perverted to serve repugnant and pernicious ends. Names and memories matter. Consider the work of James Singer, an attorney in Saint Louis who was recently bestowed the Crystal Eagle Award by the Owners’ Counsel of America. Mr. Singer and Ellen Kunkelmann wrote an article entitled “Reckoning in Creve Coeur” that told the story of H. Phillip Venable, a medical doctor who tried to build a house in a predominantly white neighborhood near Saint Louis. Dr. Venable was an ophthalmologist and was frustrated with the development and construction of his home. Ultimately, neighborhood protest resulted in the condemnation of Dr. Venable’s property for a park. Dr. Venable challenged the decision to invoke eminent domain as being motivated by racial discriminatory intent, arguing that such intent could not satisfy the Constitution’s requirement of “public use.” Despite overwhelming evidence that this action was racially motivated, the Missouri courts upheld the taking citing precedent that decisions of “public use” were legislative in nature and it was beyond the court’s power to overturn that determination. Ultimately, Dr. Venable’s property became a park, but through the effort of telling his story, Mr. Singer highlighted a historical wrong and that prompted the local government to make amends starting with the renaming of the park to honor Dr. Venable.
Acknowledging the Harm
Second, reconciliation should include an acknowledgement of the harm. In the early twentieth century, Willa and Charles Bruce developed a seaside resort in the city of Manhattan Beach, California. The California transplants’ resort was popular and other black families purchased plots of land nearby. In 1924, acting on a petition from local real estate agents, the Manhattan Beach City Council voted to use its powers of eminent domain to take the resort for a park. The resort was demolished, and no park was built for nearly three decades. The current park owner, Los Angeles County, recently decided to return the land to the heirs of Willa and Charles Bruce and engaged a law firm to identify those heirs. In acknowledging the harm wrought by the pretextual use of governmental eminent domain powers, Los Angeles County reconciled with the discrimination that led to its eventual acquisition of this land.
Subsequent remedial measures, such as the recent action taken by Los Angeles County, should be lauded, but these cases also demonstrate the need to reconsider doctrine. Was it appropriate for courts, historically, to disregard whether avowed public benefits, i.e., the establishment of parks, were mere pretexts for invidious race-based discrimination? In an otherwise socially and economically unequal society, equal protection of the laws is intended to guarantee the basic legal equality and dignity of every citizen, irrespective of socio-economic differences within our polity, and to promote equality of opportunity. As we litigators know, discriminatory intent is exceedingly difficult to prove. Equal protection rings as a hollow promise, if, even with substantial evidence of discriminatory intent, the courts tell citizens that such intent is irrelevant to whether a taking is constitutionally valid.
Changing the Legal System to Stop Oppression
Third, reconciliation can be facilitated by changes in statute to purge the odious use of American’s legal system to oppress African Americans. In the late nineteenth century and early twentieth century, as the nation grappled with population growth and the need for housing, restrictions on the use of land came through two governmental powers. Zoning, blight clearance, and even highway construction projects used the government’s police and eminent domain powers in ways that hampered African American homeownership rates. But government land registration systems allowed for the use of racially restrictive covenants to have discrimination “run with the land.” These covenants precluded the sale of property to African Americans. While these covenants are unenforceable by court decision, because the covenants run with the land, the odious terms remain on record title. The California Assembly recently passed a law that provided a mechanism for racially restrictive covenants to be removed from title. The Uniform Law Commission has an initiative to develop a uniform law that would facilitate the removal of racially restrictive covenants from the chain of title. History is important and the existence of these vestiges of an overtly racist chapter of our nation’s history perhaps should not be erased because they do serve an important reminder to us all. But reconciliation is advanced when our nation’s laws and codes provide the tools to explicitly eradicate the on-the-books-but-unenforceable covenants.
Our past is messy. It is complicated. Nevertheless, the legal profession plays a critical role in helping our community reconcile with that past and can make a difference in redressing the discrimination that was expressly part of the system of real estate development, finance, zoning, and conveyancing for most of America’s history. As real estate practitioners, we must understand our history and the repugnant use of our real estate legal system to segregate and discriminate so that we can play a role in reconciling those wrongs.
Author’s note: For further study of the history of real estate development in the twentieth century and the racial discrimination included with that development, I recommend Color of Law by Richard Rothstein.
Mark M. Murakami is a director with Damon Key Leong Kupchak Hastert in Honolulu, Hawaii.
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