Segregation Through Space: Power, Restrictive Covenants and Informal Norms

Introduction

In a post (world) war US, examining both institutionalized methods of segregation and less recognizable de facto practices reveal power exercised through urban and suburban space. The goal of this paper is to sketch an alternative way of teaching the laws aimed at limiting these practices – a way that shifts the focus from seeing applicable regulations as protective and successful (see 1L property law) and instead as loopholes and agents of stagnation. With the goal of transcending layers of social action, I will offer: (1) background information about covenants, (2) a discussion of a power dynamic underlying the relevant relationships and (3) an idea for a different conceptual way to teach the policy surrounding the laws.

I. Covenants: What Happened?

Racially restrictive covenants legally prohibiting blacks from living in white areas were deemed unenforceable in 1948 (see Shelly v. Kraemer). Still, however, methods of discrimination against minorities in this era have persisted. In Covenants and Conventions, Economist Richard Brooks notes that corporations, officials and realtors have utilized such methods by over-screening applicants, requiring higher security deposits of minorities, charging unfair rents and ultimately, refusing to sell houses in traditionally white areas to unwanted groups. Banks and lending institutions have expanded on these practices. In the 1930s, the Home Owners' Loan Corporation enforced a discriminatory ratings system that labeled black neighborhoods as undesirable and channeled federal funds away from these areas. In more recent years, the rise in predatory lending has had a similarly negative effect, allowing policies which initially restricted minorities to reach a larger group of disfavored individuals.

II. The Power: The Influence Of Minds On Other Minds

Many of these examples show that during this time, power – if viewed through Robert Dahl’s oft criticized, but relevant, pluralist framework –was structured in interesting ways allowing control over the group. Dahl writes: "A has power over B to the extent that he can get B to do something that B would not otherwise do." In some cases, the institutionalized methods of segregation exemplified a direct relationship concerning "power over" individuals. Under a one-dimensional power framework, the authoritative factor – the real estate agency, government official, bank corporation, etc – was a controlling unit, thus creating a direct relationship between the group member and relevant official. Even so, power was also shown through informal and perhaps more influential mechanisms, including bad attitudes and a lack of support. With the enforcement of practices, the unwanted shaped actions to others’ liking and stayed out. Such a view perpetuated the notion that the combination of formal and informal norms could dominant even in communities yearning for actually beneficial laws.

III. An Example: How Do We Explain Where We Are?

A less obvious example of restrictive practices can be seen by noting the growth of self-enclosed areas in modern societies. According to the Economist, one-sixth of the US population lives in gated communities and condominiums. (See America's New Utopias, Economist, Sept. 1, 2001, at 25). Take a walk downtown and perhaps you will notice buildings utilizing methods to keep the unwanted away -- doormen, protective gating, even more subtle barriers such as the "gateways" that separate Columbia from the rest of the “Morningside Heights” community -- all have distinct roles. The delineations serve safety purposes, but they are also subtle reminders of greater distinctions between divergent communities. The questions?; Who belongs and who doesn’t? Who stays and who goes? Who can keep up?

IV. What Was Intended and Why It Should Matter To You

This discussion, sparked by a reflection on the ways in which property law teaches that laws like the Fair Housing and Civil Rights Acts are protective measures in regards to discrimination in real estate, is meant to spark conversation relating more specifically to the classroom success in conveying these ideas. What good is it to put forth a view that the laws are wholly protective and that situations -- like the one with the black Skaddenite who married a white woman and successfully sued a co-op board for keeping him out -- signify justice when for every morally right case that makes it into the casebook, there are 1000 more like it that don’t? In The Behavior of Law, Black points out what comes as fairly obvious to some – wealthier communities have “more law”. This distinction could not be more true in the housing context; there literally more laws to obey, and even with the laws, informal norms often prevail. But if we live in a contemporary society, shouldn’t we be taught recognizing the way the law actually works as opposed to how it is intended to work?

From my (admittedly) limited experience, the current model of teaching (at least in these areas) says no. In a recent conversation with a TA regarding law school assessment, I was told I had a good practice essay but droned on about policy, which “gets you 1 point max.” In response, I would (and should) argue that studying housing policy and its doctrines (ie. “changed conditions”) requires a greater, dominant look at why the laws are framed the way they are and end up working the way they do. To get a true understanding of the dynamic in which the law works, I suggest these norms and theories should be viewed even before looking at the rules. In the housing arena in particular, it seems the custom of knowing how to work within “Mrs. Murphy’s exception” or at what baseline you can keep your residence without getting sued – matters more than the fact that you are adhering to the law. Current paradigms may help homeowners and landlords maintain expectations, but with each restriction, a particular norm is advanced; a stagnant community remains stagnant and a member of an unwanted group theoretically and physically moves further away. And at what social cost?

There would be more value in these circumstances in addressing the informal norms that shape how the law is perceived to the public and how it actually works when put into practice before addressing the regulations one faces before finding a loophole. Without this, both the lesson and the law become another point to spit out at the semester’s end.

-- UchechiAmadi - 15 May 2009

• It's not clear to me why your Part I works the way it does. I don't think anybody believed then or thinks now that Shelley eliminated the spatial expression of white supremacy. Restrictive covenants weren't even eliminated, after all, just made unenforceable in court, which isn't the same thing at all. And restrictive covenants weren't then and aren't now particularly important in explaining how white supremacy uses law to control space. So what's the "what happened-ness" of it all? I also don't understand your part II, probably because I didn't attend your Property class. It seems to me that the points you are making here could and should have been made there, either by the teacher or by you, as an ordinary part of the discussion. If they weren't, the reason would be important to understand.

• Your point about the importance of the "informal," by which I think we just mean "social," context that surrounds the law's process and substance is crucial. It's what realism claims, and as you know I agree. Whether one begins from the social depends on any number of factors, it seems to me, and I've tried to show why that is in dealing with the structures of consilient explanation. In dealing with the social context, after all, the same question arises again and again: should one start with the intrapsychic or the material roots of white racism in order to understand its social development? Is "slavery and social death" or "capitalism and slavery" the appropriate first jumping-off point in that immensely important subissue in the discussion of white racism and white supremacy? And so on. At each stage, navigating the network of social connections, we could come back to the law again, and then we'd recapitulate the conversation in miniature.... I don't think there's an inherently best order. So I don't know whether your proposed order is "right" or "wrong," and I don't think it matters very much. One could start from the legal rules and move into the social realities, as—for example—the fair housing clinic does. I think the important point is to get all the aspects introduced and to help students see that they are interrelated.