On the Books, Unenforceable: Restrictive Covenant an Echo of Williamstown's Racist Legacy
Paragraph 'f' of the covenant for a housing development in 1939 is a vestige of a sadder period of our history
And it smacks of Jim Crow laws and unreconstructed Confederates.
It is the kind of thing that 21st-century New Englanders might associate with "the South."
But it happened right here in the Village Beautiful, and although it never could be enforced for a variety of reasons, it still is on the books.
"No persons of any race other than the white race shall use or occupy any buildings or any lot, except that this covenant shall not prevent occupancy by domestic servants of a different race domiciled with an owner or tenant," reads section "f" of the "Protective Covenants and Restrictions" written when the Colonial Village neighborhood off Main Street (Route 2) was developed in 1939.
The racist provision has been unenforceable in the United States for more than 70 years, so it is likely many of the neighborhood's residents have never heard of it, much less considered it when moving to the area.
Nevertheless, it is one clause among nine mostly benign restrictions attached to the residential lots that are home to dozens of town residents. It is tucked in between, "No noxious or offensive trade or activity" and "No trailer, basement, tent, shack, garage, barn or other outbuilding … shall at any time be used as a residence."
The seemingly routine reference to racial purity, if anything, makes it more insidious to a contemporary reader.
An article by the non-profit Fair Housing Center of Greater Boston notes that such racially restrictive private covenants became common after the northern migration of Black Americans in the post-Civil War era and a 1917 decision by the U.S. Supreme Court that ruled governments could not racially segregate neighborhoods based on zoning.
"The practice of using [private] racial covenants became so socially acceptable that in 1937 a leading magazine of nationwide circulation awarded 10 communities a 'shield of honor' for an umbrella of restrictions against the 'wrong kind of people,' " the Fair Housing Center's article reads. "The practice was so widespread that by 1940, 80% of property in Chicago and Los Angeles carried restrictive covenants barring Black families."
Restrictive covenants were found to be constitutional by the Supreme Court in its 1926 Corrigan vs. Buckley decision.
"The Supreme Court of the United States acknowledged, sadly, the legality of racial covenants," Williamstown real estate attorney Stanley Parese said. "During this period of time, as horrific as this is to look at today, this was legal as defined by the Supreme Court. And it gets on the land records in 1939 during the time it was a terrible but lawful thing to do."
It took more than two decades for the Supreme Court to begin to rectify the Corrigan decision. The chance came in 1949, and the unanimous court found in the case of Shelley vs. Kramer that governments cannot enforce racially restrictive covenants because of the 14th Amendment of the U.S. Constitution.
"Whatever else the framers [of the amendment] sought to achieve, it is clear that the matter of primary concern was the establishment of equality in the enjoyment of basic civil and political rights and the preservation of those rights from discriminatory action on the part of the States based on considerations of race or color," Chief Justice Fredrick Moore Vinson wrote in the opinion. "Seventy-five years ago this Court announced that the provisions of the Amendment are to be construed with this fundamental purpose in mind."
Even that decision was limited in scope.
"The Supreme Court said these are not enforceable," Parese said. "You can have private agreements, but you can't come to the state and have the state get involved."
That changed in 1968 with the passage of the federal Fair Housing Act, which makes it illegal "To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin."
A year later, Massachusetts passed Massachusetts General Law Chapter 184, Section 23B, which reads, in part, "A provision in an instrument relating to real property which purports to forbid or restrict the conveyance, encumbrance, occupancy, or lease thereof to individuals of a specified race, color, religion, national origin or sex shall be void."
Another provision in the commonwealth's law, MGL Chapter 184, Section 28, passed in 1962, made all real estate restrictions -- many of which were redundant with zoning -- obsolete.
"So you have the Supreme Court of the United States saying it's unenforceable, the federal government says it's unlawful, Mass General Law says it's void … it has no operable effect at all," Parese said. "There are four separate stakes, if you will, driven into this thing."
That is not to say that housing discrimination ended with the passage of the Fair Housing Act, only that it became illegal under federal law.
And yet the Colonial Village covenant -- like untold other unenforceable anachronisms -- remains part of the permanent record and attached to those properties in the commonwealth's Registry of Deeds.
"As title searchers, which is what lawyers do, one would look at it and say, 'This is terrible but it's absolutely ineffective,' " Parese said. "I know it sounds like an insensitive thing to say, but as a lawyer searching a title, you're trying to find if something has a legal operative effect … and the answer is, four times over, absolutely not for the past 50 years."
Why not simply discard the covenant altogether?
Parese said it's possible but unusual for documents in the Registry of Deeds -- which has records going back to the 18th century -- to be altered. He can think of one example where records were erased. In the beginning of the 21st century, the state redacted Social Security numbers from deeds, which are public records, in an effort to combat identity theft.
That decision required an act of the Legislature to address a specific criminal activity. Parese, who has been practicing property law in Williamstown since 1988, declined to hazard a guess what the procedure would be to strike the covenants from the record.
"[Changing the record] is exceedingly rare in my experience, but I don't want to speak to it as something that's either easily done or impossible to do," he said. "I just don't know because I haven't undertaken that exercise."
But another question is whether it should be undertaken: Does destroying the public record of the now unenforceable yet reprehensible provisions only serve to sweep a racist legacy under the rug?
Parese said that from his standpoint, there could be a case for leaving the hateful words in place as a reminder of the hatred that engendered them.
"I'm not saying anything that hasn't been said already, but people have been saying over and over the past few months that this is a time when people need to listen to each other," Parese said. "There needs to be a healthy listening exercise before taking any particular action. And I completely expect that conversation will happen in Colonial Village.
"I could see a straight-faced argument that says pretending this thing was never there is not what we should be doing. We should be facing the reality of what this was. It happened, and it's right there in black and white.
"It's just profoundly sad."
