May 1, 2023

Past Injustice, New Possibilities

Racially restrictive deed covenants are a permanent stain on the record of many Grand Rapids properties, but ICCF is helping change the narrative for future generations.

by Andrew Hakken, ICCF General Counsel

Soon after the American Civil War ended in 1866, the United States of America ratified the 14th Amendment to the United States Constitution. Section 1 of the 14th Amendment provides:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

This text was primarily intended to outlaw statutes and practices in southern (and northern) states that discriminated against their citizenry based on race. Despite the broad application the 14th Amendment was intended to have on racially discriminatory practices of the day, defiant property owners who benefitted from these practices devised a scheme to enable racial discrimination to continue in the housing industry—racially restrictive deed covenants.

The now-debunked theory of how racially restrictive deed covenants are permissible under the 14th Amendment is as follows: the 14th Amendment only applies to a “State” making or enforcing a discriminatory “law.” Accordingly, private citizens, who are not state actors, may freely impose whatever restrictions they like on their private property, whether the restrictions are based on race or otherwise.

Tragically, even in our own backyard, deed restrictions like this increased rapidly for decades after ratification of the 14th Amendment, until the United States Supreme Court unanimously decided the case of Shelley v Kraemer in 1948. The Shelley court held that although the 14th Amendment does not apply to private deed restrictions themselves, enforcement of the restrictions through a state’s judicial branch clearly involves state action, and states may not do so when a restriction is based on race.

Even though Shelley eliminated enforcement of racially restrictive deed covenants, their damage had already been done. The housing stock in countless cities across the country was deeply segregated by race, as or more decisively than if the states had directly legislated the result. Racially restrictive covenants were the common and normal practice embedded in the Grand Rapids housing market all the way into the 1960s, and we are still dealing with the aftermath of this ugly chapter in our nation’s history.
Eradicating the effects of generational housing injustice takes time, but ICCF Community Homes is committed to doing so, including in this very same Alger Heights neighborhood, where we are currently planning affordable housing at the Seymour Development.

ICCF Community Homes

ICCF Community Homes is the oldest non-profit affordable housing provider in the state of Michigan. Active in the Grand Rapids area since 1974, ICCF serves over 2,000 households a year through its programs and services. Program offerings include Family Haven emergency shelter, over 700 units of affordable rental housing, newly constructed homes for purchase, homeownership education and financial counseling.

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