Although covenants restricting the sale of property to whites only have been illegal since a U.S. Supreme Court ruling in 1948, such covenants continue to lurk in records for countless properties in Washington and around the country. A provision added to Washington’s Law Against Discrimination in 1987 allowed filing a court action to strike racially discriminatory provisions from real property documents. The language of that 1987 provision had been untested until a February 23, 2021 split decision by Division Three of the Washington Court of Appeals (covering eastern Washington). According to two of the three judges in May v Spokane County, the statutory reference to “striking” racially discriminatory provisions does not mean physically and permanently removing the language and that it is sufficient for a court to issue an order declaring the language stricken. A lengthy dissent, however, argued more should be required because “the time has come to rip, from the pages of official records, white inscriptions of supremacy. The time has come to tear down monuments to slavery and racial segregation on display in this public square.”
The May case involved a 1953 declaration of protective covenants for a Spokane subdivision created by William Cowles, Jr., then the publisher and part-owner of the Spokane Daily Chronicle and The Spokesman-Review newspapers. The covenant stated:
No race or nationality other than the white race shall use or occupy any building on any lot, except that this covenant shall not prevent occupancy by domestic servants of a different race or nationality employed by an owner or tenant.
Such covenants were common in the first half of the twentieth century after the U.S. Supreme Court ruled that municipal zoning laws based on race were unconstitutional. Homeowner groups and developers then turned to recording race-based restrictions to prevent integration of neighborhoods. The Federal Housing Authority assisted these efforts by adopting regulations in the 1930s to compel recording racial covenants purportedly to preserve housing values insured by government-backed loans. The U.S. Supreme Court’s 1948 decision in Shelley v. Kramer declared such covenants unconstitutional, but that apparently did not stop the practice, as evidenced by the Cowles’ restrictive covenant five years later. The federal Fair Housing Act of 1968 and Washington’s Law Against Discrimination, RCW 49.60.222-.226, voided the covenants but did not address their removal from property records.
In a 1987 amendment to the state Law Against Discrimination, the legislature provided for an owner, occupant or tenant of a property subject to a discriminatory covenant to bring a declaratory judgment action. Under RCW 49.60.227, if a court finds any provisions of property records are void under the law, it “shall enter an order striking the void provisions from the public records and eliminating the void provisions from the title or lease of the property.” Alternatively, a property owner may record a restrictive covenant modification document that states: “The referenced original written instrument contains discriminatory provisions that are void and unenforceable under RCW 49.60.224 and federal law. This document strikes from the referenced original instrument all provisions that are void and unenforceable under law.”
Alex May owned a lot in the Cowles’ subdivision in Spokane and brought a declaratory judgment action to have the discriminatory restrictive covenant declared void and stricken from the public record by physically altering the recorded 1953 covenants. The trial court denied Mr. May’s motion for summary judgment on the grounds that RCW 49.60.227 does not require auditors to physically remove void provisions from the public record. The court nevertheless ruled that the covenant was void, ordered it stricken, and directed the auditor to file a copy of the order with the property’s records. On appeal, two of the three judges on the Division Three panel ruled that the statute does not require physically striking the offending covenant, while a third judge wrote a lengthy dissent arguing that the provision should be physically removed.
Noting the 30-year existence of the provision and the novelty of the issue, the two judges in May ruled that the legislature intended nothing more than a legal document (either a court order or an owner-filed modification) to do the act of “striking” discriminatory language and that physically eliminating the language was not required. While the majority said racially restrictive provisions are offensive, morally reprehensible and repugnant, it asserted, “A policy of whitewashing public records and erasing historical evidence of racism would be dangerous. It would risk forgetting and ultimately denying the ugly truths of racism and racist housing practices. Such an outcome cannot be squared with the anti-discrimination purposes of Washington’s Law Against Discrimination.”
Judge George Fearing wrote a 25-page dissent that argued the plain meaning of the words “strike” and “elimination” in RCW 49.60.227 “are stout, energetic verbs that convey the thought of deletion, removal, and expulsion. The words command an excision of all offending verbiage from the public record. None of the words suggest blanketing the offending covenant with another document that repeats, but declares invalid the racial restriction.” The dissent said the statutory directive to strike the covenant from the public records means “excising the cancerous covenant at its origin.”
The dissent noted that even though nothing in the language requires the county auditor to take action, the statute does not exclude action by the auditor. Since the statute cannot be fulfilled without auditor action, and nothing in the statute limits the remedy to a court order, the dissent dismissed the idea that filing an order or modification was sufficient. “Adorning a skunk in a freshly laundered and crisply ironed T-shirt that reads “I AM NO LONGER A SKUNK” does not strike or eliminate the stench from the skunk.”
The Cowles’ covenant was particularly bothersome because, as Judge Fearing pointed out, the auditor lacks any duty to record an instrument that violates the law. By allowing the Cowles’ covenant to be recorded five years after the Supreme Court outlawed such provisions, the auditor in effect flouted the law, which “exemplifies the sad reality of Washington officials’ failure to abide by the promise of the Thirteenth Amendment and move the African-American race from segregated locations and lift the race from its subordinate status.”
Addressing why the auditor should take the unusual and possibly time-consuming task of erasing the racial covenant from the chain of title, the dissent referred to studies estimating that racial covenants continue to infect title to millions of American homes. “Whites need not bring a lawsuit to have racial covenants declared unenforceable. Caucasians need not incur the expense of an attorney to prepare a document in order to remedy racial discrimination that the county auditor should have never allowed in the first place. White Americans do not bear the cost of eradicating the unending burdens of slavery and apartheid.” Furthermore, the presence of the covenant could “subtly encourage some homeowners to discreetly sell only to whites. Blacks may be reluctant to purchase residences in a neighborhood that they learn retains scars from a history of racial territoriality.”
And, contrary to the majority’s assertion that leaving the covenants on file served a beneficial historical record of ethnic intolerance, the dissent concluded, “Eradicating auditor records of offensive covenants will not whitewash the ugly truth of American apartheid. Literature, including this legal dissent, will teach generations of our nation’s children about property ownership restrictions that precluded those with darker skin tincture from full enjoyment of American prosperity and encaptured African-Americans within a fence of belittling isolation.”
The issue of countering the lingering vestiges of discriminatory real estate practices has been the subject of several statutory enactments by various other statute legislatures. Oregon’s analogous statute, ORS 93.274, provides for a process to obtain a court judgment “removing” the part of the provision that violates the statutory prohibition against discriminatory covenants, but no Oregon court has examined this provision. California’s statute, Government Code §12956.2, simply provides for recording a Restrictive Covenant Modification, which includes a copy of the original document containing the lawful covenant. Thus, the May case stands out as one of the few judicial interpretations of such statutes, and the use in RCW 42.60.227 of “strike” and “eliminating from title” may be unique among such state statutes.
It is not clear yet whether the plaintiff will seek review by the state Supreme Court or, if sought, whether the Court would grant review. But, the May decision and lengthy dissent come at a critical time in our country’s long and difficult efforts to redress decades of discrimination and is one that would be ripe for consideration.