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Court strikes down racial segregation ordinance

February 2016:– It was 100 years ago that the Supreme Court of the United States heard oral argument in Buchanan v. Warley, in which it struck down a Louisville, Kentucky, city ordinance that prohibited Black people from moving to city blocks where the majority of residents were White, and vice versa. The decision, written by Justice William R. Day, was unanimous. There was no dissent, not even from Chief Justice — and former Confederate officer — Edward Douglas White, who had voted with the majority in Plessy v. Ferguson. In observance of Black History Month, and in view of present-day calls for segregation on campus (strange but true), I offer a conspectus of Buchanan v. Warley, an important victory in the struggle for liberty and equality.

The case arose when Post Office employee and part-time newspaper publisher William Warley, who was Black and a leading member of the Louisville NAACP, entered a contract to buy a plot of land from real-estate agent Charles H. Buchanan, who was White. Both men opposed the city ordinance and went to court in order to test its constitutionality. To that end, their contract contained a clause that said the buyer (Warley) would only close the deal if he had the right under the laws of Kentucky and Louisville “to occupy said premises as a resident.” This condition, of course, was one that could not be met, and it provided Buchanan with a basis for asking the circuit court for specific performance, i.e. an order compelling Warley to pay for the property.

Neither the circuit court nor the Kentucky Court of Appeals would order Warley to pay for a property he could not lawfully occupy, reasoning that the ordinance gave Warley a complete defense. So the case went up to the Supreme Court of the United States, with Buchanan arguing that the ordinance could not provide Warley with a defense because it was unconstitutional. This was a situation the ordinance’s drafters had foreseen, and they had designed it with a constitutional challenge in mind.

The ordinance started out as a policy proposal from a Louisville resident by the name of W.D. Binford, who  worked as a manager at a local newspaper. He and his allies knew about the constitutional infirmities that had undone segregation ordinances in Baltimore and elsewhere, and planned a workaround.  For a detailed account of the campaign see Life Behind a Veil: Blacks in Louisville, Kentucky, 1865-1930, by George C. Wright; As Long as They Don’t Move Next Door: Segregation and Racial Conflict in American Neighborhoods, by Stephen Grant Meyer; and Race, Place, and the Law, 1836-1948, by David Delaney.

Binford pitched the enforced-segregation idea to a luncheon gathering of the city’s real-estate agents, a group called the Real Estate Exchange. He suggested a measure free of the flaws that had stymied other segregation ordinances. Perhaps because of the failure in Baltimore, Binford’s speech met with little enthusiasm. But he started organizing, and soon had enough White neighborhood associations on his side to make property-owners and politicians take notice.

So, although initially tepid, many real-estate agents came around to Binford’s suggestion. Not J.D. Wright, however, an officer of the Real Estate Exchange, who appeared alongside William Stewart of the NAACP to argue against the proposed ordinance at the city council hearing. But Wright and Stewart did not prevail. The force that they and other opponents of segregation were battling against was the political equivalent of rampant climate change.

Segregation was on the rise across much of the country, and one of its most ardent advocates, Woodrow Wilson, occupied the White House. In Louisville, Binford and his fellow activists were threatening to throw out any councilors who failed to back their proposal; they were well organized, vocal, and enjoyed the support of the local Democratic newspaper, the Times. Not surprisingly, in view of the grassroots activism, the city council voted 21:0 in favor, and on May 11, 1914, the mayor, a Democrat named John H. Bushemeyer, signed into law a measure titled,

“An ordinance to prevent conflict and ill-feeling between the white and colored races in the City of Louisville, and to preserve the public peace and promote the general welfare by making reasonable provisions requiring, as far as practicable, the use of separate blocks for residences, places of abode and places of assembly by white and colored people respectively.”

Banning Black people from living on the same block as White people was the way to “prevent ill-feeling,” the ordinance declared, so certain provisions were necessary. What sort of provisions? “Reasonable” ones. They did not appear all that reasonable to the members of the NAACP, who set in motion the test case.

When the case reached the Supreme Court, the plaintiff, Buchanan, was represented by three NAACP lawyers, including the organization’s president, Moorfield Storey. This article provides a concise description of Storey’s line of argument and the significance of the Court’s decision (scroll down to the section headed “civil rights and property rights”).

In addition to Storey’s, the NAACP filed an amicus brief written by William Ashbie Hawkins, a Black attorney with a practice in Maryland who “participated in almost every major civil rights case in Maryland during the first quarter of the Twentieth Century… [and] ran unsuccessfully as an independent candidate for the United States Senate [in 1920], a first for a black citizen of Maryland,” according to J. Clay Smith in Emancipation: The Making of the Black Lawyer, 1844-1944. It is worth remembering that Hawkins was born in 1862 in Lynchburg, Virginia — which at the time housed a prison camp for Union POWs — so, although the record is not clear, it is likely that he was born into slavery. Property rights and liberty of contract must have had a powerful import to someone the law had until recently considered to be property with no right to enter into contracts of his own.

The NAACP argued that the ordinance violated the Fourteenth Amendment’s guarantee of equal protection including “the right to acquire and possess property of every kind [and] to dispose of it and to live upon one’s own land.” In a phrase that the Court found persuasive, Storey argued that the ordinance “destroys, without due process of law, fundamental rights attached by law to the ownership of property.”

In response, the attorneys advocating for the validity of the ordinance (ironically, representing Warley) claimed that “the use of property and liberty of contract are subject to reasonable police regulations, and their enforcement does not deprive a person of property without due process of law.” Property rights are not absolute, they contended. After all, cities are free to limit the height of buildings and prohibit billboards in residential neighborhoods: The segregation ordinance was analogous to regulations of that sort, they claimed.

The Court came down on the side of the NAACP.  It acknowledged the government’s police power, noting that “legitimate business may… be regulated in the interest of the public.” But it concluded:

We think this attempt to prevent alienation of the property in question to a person of color was not a legitimate exercise of the police power of the State, and is in direct violation of the fundamental law enacted in the Fourteenth Amendment of the Constitution preventing state interference with property rights except by due process of law. That being the case the ordinance cannot stand.

This Black History Month, I tip my hat to the lawyers and litigants of the NAACP who brought about the decision in Buchanan v Warley.  In particular, I honor the memory of Attorney William Ashbie Hawkins, and William Warley, whose service to justice the Wilson administration saluted by firing from him from his job in the Post Office. May they rest in peace.

Peter Vickery July 2012

 

New housing rule: one more step toward desegregation?

Advocates of desegregation should take heart, and planners should take notice, because at last it’s official: Land-use policies that perpetuate residential segregation are illegal.  A new rule from the Department of Housing and Urban Development (HUD) clearly spells out that the Fair Housing Act prohibits practices that have a discriminatory effect (disparate impact), even if there was no intent to discriminate.

Confirming the way most federal courts had long interpreted the statute, HUD’s new rule states that “[a] practice has a discriminatory effect where it actually or predictably results in a disparate impact on a group of persons or creates, increases, reinforces, or perpetuates segregated housing patterns because of race, color, religion, sex, handicap, familial status, or national origin” 24 CFR 100.500(a), Subpart G. This applies to public and private entities alike, so it covers not only city councils and local housing authorities but also housing developers.

Federal courts generally apply a three-part burden-shifting formula to decide whether a land-use policy violates the statute’s discriminatory-effects prohibition, and this is the course that HUD decided to follow. First the plaintiff has to show that the practice “caused or predictably will cause a discriminatory effect.” The burden then shifts to the respondent to prove that the practice “is necessary to achieve one or more [of the respondent’s] substantial, legitimate, nondiscriminatory interests.” If the respondent succeeds, the burden shifts back to the plaintiff to prove that the respondent could serve those interests “by another practice that has a less discriminatory effect.”

On the one hand, this does not represent a new departure or a substantive change to the federal law. But, on the other hand, it certainly helps plaintiffs who are trying to show that a zoning decision would violate the Fair Housing Act even if the city officials had no intention of acting in a racially discriminatory way. In practice, this may encourage challenges to the planning policies that undergird the de facto segregation of the public schools in and around Springfield, Massachusetts.

Springfield: Some of the most segregated schools in the nation

As before, any ordinance, bylaw, policy, or practice is open to a courtroom attack if it “creates, increases, reinforces, or perpetuates segregated housing patterns.” Now, however, desegregation advocates will have an easier time defeating the customary motion to dismiss.