Inherit the Windy City – How Chicago Has Revived a Legacy of Jim Crow
While the election and Israel’s war in Gaza have recently dominated the news, one story has evaded public scrutiny. In Chicago and some other midwestern cities, as a result of declining enrollment, education departments are selling unused school buildings. In doing so, they have purposefully excluded charter schools or other educational institutions from purchasing the properties and question. To accomplish this goal, they have written restrictive covenants into the deeds to prevent future owners from selling to schools.
Many practices, such as the Senate filibuster and run-off elections, have been casually branded, with dubious basis, as the “legacy of Jim Crow.” Restrictive covenants, on the other hand, are, without question, not just a legacy of Jim Crow, but are the very embodiment of Jim Crow. Scholars have argued that the effects of racially restrictive covenants are not a thing of the past, but have had a continuing effect on Blacks economically, on where they live, and on their educational opportunities. Thus, it is ironic that one of the most effective tools of Jim Crow has been resurrected to limit the educational options of young black students today.
The History of Restrictive Covenants
Restrictive covenants are provisions set forth in a deed or lease that restrict the free use or occupancy of the property in question. Because the covenant is written into the deed, it is not a personal obligation between the buyer and seller. Instead, it runs with the property, and any future transfer is subject to it. Restrictive covenants are frequently used to preserve the character of a neighborhood, and they may be enforced, not just by the purchaser and seller, but by neighbors who are the covenant’s beneficiaries.
For this reason, restrictive covenants were an effective means to ensure that a neighborhood remained segregated. Because the covenant was fixed in the deed and therefore ran with the land, it could not be altered by a seller. Furthermore, because covenants could be enforced by neighbors, individuals could not circumvent them. Restrictive covenants encompassed whole towns. For example, in the original and most famous suburb, Levittown, N.Y., all of the houses were sold subject to racial restricted covenants, such as:
“The tenant agrees not to permit the premises to be used or occupied by any person other than members of the Caucasian race. But the employment and maintenance of other than Caucasian domestic servants shall be permitted.”
Although the earliest restrictive covenants were in California (against Chinese) and Massachusetts, it appears, unsurprisingly, that restrictive covenants first became prominent in the Jim Crow South in the late 19th century, at the same time as municipal ordinances that employed the power of the state to enforce segregation of neighborhoods. Numerous cities throughout the South enacted zoning ordinances that provided that Blacks could only live in certain designated neighborhoods. The mayor of one such town, Baltimore explained, the rationale for such ordinances:
“Blacks should be quarantined in isolated slums in order to reduce the incidents of civil disturbance, to prevent the spread of communicable disease into the nearby White neighborhoods, and to protect property values among the White majority.”
The earliest restrictive covenants were limited agreements governing individual properties. Their use to produce large scale segregation did not explode until after 1917. Four factors contributed to this explosion. First, zoning laws that enforced segregation were deemed unconstitutional by the Supreme Court in the case Buchanan v. Warely.
Second, the period after the 1917 Buchanan decision coincided with the great migration of Blacks from the South into Northern cities. Housing in Black neighborhoods was inadequate for the flood of Blacks moving north, putting pressure on poor and working-class neighborhoods in Northern cities.
Third, this period coincided with the development of an organized and national real estate industry. Local real estate boards and national associations of real estate brokers proliferated, creating the conditions and structure to impose uniform, if private, rules for the segregation of neighborhoods. They encouraged the development of homeowners’ associations to write and enforce these rules. Recent immigrants, having just escaped poverty themselves, feared the loss of property values from a Black influx.
Finally, the adoption of restrictive covenants increased as a result of a series of race riots that occurred after 1917, in East St. Louis, Illinois and Chicago, but also in New York, Washington, and several Southern cities. After the riot in Chicago, the Hyde Park Improvement Club issued a manifesto that stated that “blacks had to confine themselves to the 'so-called Districts,' real estate agents must refuse to sell property in white blocks to blacks, and landlords must hire only white janitors.”
Racial covenants received a boost when their legality was upheld by the Supreme Court in the 1926 decision Corrigan v. Buckley, in which the Court wrote:
The constitutional right of a Negro to acquire, own, and occupy property does not carry with it the constitutional power to compel sale and conveyance to him of any particular private property. The individual citizen, whether he be black or white, may refuse to sell or lease his property to any particular individual or class of individuals.
The segregation engendered by the wholesale adoption of restrictive covenants had a massive impact. In Los Angeles and Chicago, it is estimated that eighty percent of properties were subject to racial covenants. Blacks in Chicago were funneled into the so-called “Black Belt” that stretched below the Loop. The Black Belt has since grown to encompass most of South Chicago with the notable exception of Hyde Park.
This impact was exacerbated by New Deal programs, more specifically the Federal Housing Authority (“FHA”), that added a government imprimatur to the de facto zoning that was occurring in Northern cities. The FHA sought to stabilize the housing market by insuring low-interest loans. To qualify for a loan, a property had to meet appraisal standards that adopted the racial practices embodied by restrictive covenants. THE FHA’s underwriting manual in 1935 stated explicitly:
“If a neighborhood is to retain stability it is necessary that properties shall continue to be occupied by the same social and racial classes. A change in social or racial occupancy generally leads to instability and a reduction in value.”
Eventually, restrictive covenants were deemed unconstitutional in 1948 by the Supreme Court in Shelley v. Kramer, in which the Court reasoned that where property owners utilized the courts to enforce their agreement, their conduct was not purely private. However, even then the FHA did not abandon its policy with respect to covenants. The FHA Commissioner stated that it was not “the policy of the government to require private individuals to give up their right to dispose of their property as they see fit, as a condition of receiving the benefits of the National Housing Act.” The policies of the FHA continued for decades in the form of “redlining,” whereby lenders would not provide mortgages with respect to properties located in Black neighborhoods.
The Impact on Education of Restrictive Covenants
A recent study at Boston University attempted to measure the impact of restrictive covenants on education in the City of Chicago by tracking the outcomes in schools from three distinct areas: (1) areas that were predominantly white due to restrictive covenants; (2) those that were predominately black because of de facto segregation in the 1930s; and, (3) those that were historically white but did not utilize restrictive covenants. The study selected three representative schools from each of those areas.
Interestingly, the population of each district reflected the makeup engendered by the restrictive covenants of the past. Two of the three schools in historically white districts retained a white majority. All three schools in the historically Black districts retained an overwhelmingly Black majority. The population of the Districts that had not been subject to restrictive covenants, what the author terms “unrestricted” neighborhoods, were overwhelmingly Hispanic.
Looking at the graduation rates of students in districts that had been subject to racially discriminatory restrictive covenants and at those of districts to which blacks had been historically funneled, the author came to the following conclusion:
My findings suggest that one of the outcomes of the legacy of racially restrictive covenants is the racialization of education which leads to the correlation between a neighborhood’s population and their educational outcomes as represented by graduation rates.
In short, the author found that the use of restrictive covenants had not only impacted adversely the education of Blacks in the past, but that it had a continuing impact today.
The New Restrictive Covenants
The restrictive covenants now found in the deeds of schools being sold today affect the education of Chicago Blacks to a degree that equals, if not exceeds, the effect of the covenants of the past. The damage is not indirect; it is direct. It is expressly calculated to limit the educational opportunities of students living in predominantly Black or Hispanic neighborhoods, circumscribing the resources available to Black students. Anyone genuinely interested in the welfare of these students should explore all options to improve their education. According to a U.S.News & World Report analysis of recent school years, only 16% of Chicago elementary school students read at a proficient level, only 16% of middle schoolers, and only 14% of high schoolers. For math, the numbers were even lower: 12%, 12%, and 14%.
Given their dark history, one would expect that restrictive covenants would be the last tool employed to restrict school choice. Unfortunately, it forcefully demonstrates that the problems of Chicago’s public schools may be in large part due to the competence of the system’s leaders.