Restrictive covenants

Restrictive covenants, a form of housing discrimination, were the chief device to keep Japanese Americans in urban areas from residing outside of ethnic ghettos during the first half of the 20th Century. In the years following World War II, such covenants hindered resettlement by former inmates, especially on the West Coast of the United States. In response, the Japanese American Citizens League joined the successful multi-group legal struggle that climaxed in the 1948 U.S. Supreme Court decision Shelley v. Kraemer , which struck down legal enforcement of such covenants.


Restrictive covenants (also called residential racial covenants) are a form of residential segregation practiced by groups of homeowners in a given district. They consist of reciprocal promises by the homeowners, usually included in the deeds to the homes, not to sell or rent their property to certain classes of buyers, most often members of specified racial or other minority groups such as blacks, Native Americans, Latinos, Asian Americans, Jews, and/or Armenians. These promises are then made perpetual by obliging any future buyers to sign the covenants as an express condition of sale to them. While the origins of restrictive covenants date at least as far back as the 19th century, they became a widespread method of racial discrimination only after the U.S. Supreme Court ruled in Buchanan v. Warley (1917) that state or city governments could not legally segregate neighborhoods by race under the Fourteenth Amendment. The U.S. Supreme Court then upheld the constitutionality of restrictive covenants in Corrigan v. Buckley (1926). Because the covenants were technically private agreements, the Court held, they did not violate the Equal Protection Clause of the 14th Amendment, which prohibited only state action. During the 1930s African Americans mounted a major challenge to restrictive covenants, Lee v. Hansberry (1940), but after several years of litigation the US Supreme Court disposed of the case on a technicality.

Japanese Americans, many of whom otherwise had sufficient economic resources to secure housing in desirable neighborhoods, were particularly victimized by exclusion due to the covenants. One prewar Nisei estimated that over 80 percent of the residential property in Southern California was closed to Japanese Americans. [1] Community organizations made sporadic efforts to combat restrictive covenants legally. In the Bay Area, the Oakland Nisei Democrats joined forces with African American attorney Walter Gordon to support lawsuits. Meanwhile, in an attempt to free up housing space from restrictive covenants, community leaders in Los Angeles planned an all-Japanese American housing development in the city's Jefferson Park district, though it was ultimately abandoned.

Because Japanese Americans on the West Coast, largely as a result of restrictive covenants, remained concentrated in a small number of ethnic enclaves, their wartime removal had a particularly dramatic impact, effectively emptying out the "Little Tokyos." These areas then served as places of residence for masses of African Americans and other nonwhite migrants who arrived during the war and who were restricted from buying or leasing in most other locations. (Prewar Japanese American property owners did not generally enter into restrictive covenants against other minorities.) Meanwhile, Issei and Nisei who began to leave camp and resettle outside of the West Coast had a more varied experience with restrictive covenants. In some cases, they were able to move into white areas without opposition: either Asians were not restricted under existing covenants or their presence in small numbers was tolerated even in nominally excluded areas. In other cases (including those where white neighbors feared that the settlement of Nisei would encourage other nonwhites to seek residence) neighbors and local realtors attempted to bar them from entry by threatening to invoke restrictive covenants.

Supreme Court Challenge

Following up on Miller's victories, the NAACP Legal Defense Fund (LDF) and its allies sought to disarm restrictive covenants nationwide by bringing lawsuits on behalf of the African American buyers and renters of houses covered by restrictive covenants and the white sellers, all of whom had been enjoined in state court by the owners of other houses subject to the covenants who sought to enforce the covenants, vacate the sales, and evict the buyers and renters. When both a St. Louis case, Shelley v. Kraemer , and a Detroit case, McGhee v. Sipes , ended in defeat in the respective state supreme courts, LDF lawyers appealed to the U.S. Supreme Court (which consolidated the two cases under the title Shelley v. Kraemer ). LDF lawyers hoped to persuade the Court that even if restrictive covenants were private agreements, judicial enforcement of them by state courts constituted discriminatory state action, which violated the Equal Protection Clause of the 14th Amendment. The Supreme Court also agreed to hear Hurd v. Hodge , a case brought by other attorneys that involved a restrictive covenant in the District of Columbia, where the 14th Amendment did not apply.

In the months that followed, the JACL and LDF attorneys began to pool their efforts. After A.L. Wirin attended a conference held by the LDF on the restrictive covenant cases over Labor Day weekend 1947, he and JACL leaders decided to submit an amicus curiae brief in the NAACP's restrictive covenant cases. The brief (which, for reasons that are not clear, nominally addressed only Hurd v. Hodge ) described how restrictive covenants were being used to discriminate against Japanese Americans, making it impossible, notably, for Nisei veterans to find housing for their families, and forcing citizens of Japanese ancestry to live in overcrowded and unhealthy "Little Tokyo" areas. The brief also stated that the concentration of Issei and Nisei in ghettoes that resulted from outside housing discrimination was a major factor in setting negative perceptions of Japanese Americans as unassimilated and clannish that resulted in their wartime removal. The JACL brief also emphasized the connection between the restrictive covenant cases and Oyama v. California , the JACL's then-pending legal challenge to the Alien Land Acts in California and other Western states that likewise hindered residence by Japanese Americans.

The JACL's connection with the restrictive covenant cases was not restricted to its brief. With support from LDF counsel Thurgood Marshall, Wirin and his associates petitioned the Supreme Court to grant certiorari in the Kim and Amer cases because they illustrated how restrictive covenants affected racial groups other than African Americans. In the end, the Court did not act on the certiorari petitions in either Kim or Amer . JACL leaders also helped the NAACP lobby the Justice Department to intervene in the case. In the end, U.S. Solicitor General Philip Perlman submitted a brief (the first time the Executive branch ever offered official support in a case against racial segregation) asking the Supreme Court to strike down restrictive covenants as violating the equal rights of minorities, including Japanese Americans. Perlman reaffirmed this position during oral argument when he stated that restrictive covenants affected "the lives, health and well-being of not only millions of Negroes but of Jews, Chinese and Japanese."

Verdict and Aftermath

On May 3, 1948, the U.S. Supreme Court issued its decisions in Shelley v. Kraemer and Hurd v. Hodge . By a 6-0 margin (Justices Reed, Jackson, and Rutledge recused themselves from involvement in both cases, without stating any reason), the Court determined that restrictive covenants based on race or ancestry violated the Equal Protection Clause of the 14th Amendment and were legally unenforceable. While the petitioners in Shelley and Hurd were African Americans—although Hurd himself insisted he was a Mohawk Indian—the Court acknowledged in a footnote its understanding that restrictive covenants were used to discriminate against various groups, including "Japanese" among others. Indeed, the covenant at issue in Shelley explicitly banned use by "people of the Negro or Mongolian race."

The Supreme Court's Shelley decision, and its contemporaneous ruling in Oyama v. California , erased the main legal barriers to settlement by Japanese Americans outside of ethnic ghettos. (In fact, Nisei may have benefited proportionately far more from the decline of restrictive covenants than African Americans, who continued to face other forms of housing discrimination.) In the period that followed, a significant fraction of Nisei moved out of inner city areas to largely white suburbs in search of greater social and economic opportunity. They continued to face varying measures of opposition from their new neighbors, including homeowner petitions, overt or veiled threats of violence, denial of service at local stores, and social ostracism. JACL branches and other community organizations worked together with realtor groups to smooth the entry of ethnic Japanese families into the new areas. Within a generation after Shelley , the major force of housing discrimination against Japanese Americans had dissolved. Ironically, a signal mark of the success that West Coast Nisei had achieved in putting the history of racist exclusion behind them was the large-scale community support for Proposition 15, the 1964 California voter initiative that overturned statewide fair housing legislation. While the national JACL energetically opposed the initiative, activists complained that many Nisei, who felt they no longer needed legal protection from discrimination, now sought to "protect" their neighborhoods against entry by other nonwhite groups.

Authored by Greg Robinson , Université du Québec À Montréal

For More Information

Bono, Marisa. "Don't You Be My Neighbor: Restrictive Housing Ordinances as the New Jim Crow." The Modern American 3.2 (Summer-Fall, 2007): 29-38.

Brooks, Charlotte. Alien Neighbors, Foreign Friends: Asian Americans, Housing, and the Transformation of Urban California . Chicago: University of Chicago Press, 2009.

Robinson, Greg. After Camp: Portraits in Midcentury Japanese American Life and Politics . Berkeley: University of California Press, 2012.

Vose, Clement E. Caucasians Only: The Supreme Court, the NAACP, and the Restrictive Covenant Cases . Berkeley: University of California Press, 1959.


  1. Rafu Shimpo , June 13, 1940, cited in Roger Lotchin, "Japanese Relocation in Word War II and the Myth of Universal Racism," Journal of the Historical Society 11.2 (2011), 274.

Last updated June 9, 2015, 9:08 p.m..