The lasting legacy of racially restrictive covenants in Oregon and Washington
Introduction
There is an overwhelming amount of evidence that demonstrates the racist history of American housing policy. Black people were barred from living in Oregon when the state was established in 1859. Statistics cited from Habitat for Humanity of Oregon’s 2025 legislative coalition, Unlocking Homeownership, show Black Americans have lost ground in their quest for homeownership since the runaway home prices that have exacerbated the housing crisis of the last decade (Habitat for Humanity, 2023). Oregon is not alone. This was a nation-wide practice corroborated by Richard Rothstein’s book The Color of Law that describes in detail the ways federal and state governments aided and abetted white interests to segregate the country (2017).
Racially restricted covenants were clauses on the deed of a property that prevented non-white people from living in, owning or using the property. They were typically private agreements established by developers in a new subdivision or organized by residents in an existing neighborhood to maintain segregation and protect their economic interests.
Despite being declared unenforceable in 1948 through Shelley v Kraemer, racially restrictive covenants have left lasting material impacts. In 2018, after discovering the deed to the home she owned included such a covenant, Oregon Representative Julie Fahey introduced and passed legislation to make it easier to remove this language.
The language in Fahey’s deed reads: “No member of any race other than the Caucasian race shall use or occupy any building except as domestics in the home of an owner or tenant” (Miller, 2021). The deed and its racial covenant, according to Fahey, was written in 1949, a year after the Shelley decision.
The legality of these types of covenants has always been shaky under the 14th Amendment. Covenants are contracts but since they are attached to deeds these contracts “run with the land” (Mandelker, et. al, 2020). Meaning they exist beyond a single transaction between a seller and a buyer but also apply to future transactions. It also demonstrates a form of collective governance over land that contradicts traditional views of America’s property rights.
But because racially restrictive covenants were tied to the land, they were used as a tool to maintain white dominance and property values (Brooks and Rose, 2013). In Portland, the neighborhoods with known racially restrictive covenants follow industry redlining maps and have higher home values (Morrison, 2018; Anderson, 2018).
Addressing racially restrictive covenants is a case study into the lasting impacts of American slavery on our current economy and housing market (Smith, 2023). This paper explores the legal history of racially restrictive covenants, the material conditions that produced their rise and fall, and an examination of legislation from the early 2020s that attempts to confront and perhaps erase segregationist history in Oregon.
History of racially restrictive covenants
Property is uniquely powerful because it is the foundation for human life; it also creates unique social, economic and legal challenges because one person’s use of the land can negatively impact another person’s (Mandelker, et. al, 2020). Until the 20th century and the expansion of civil rights, property ownership was the way to gain many of the essential rights we have today. This meant property ownership was the accepted strategy during the Reconstruction Era for Black people to integrate into American life post-emancipation (Brooks and Rose, 2013).
In response to the political, social and economic gains Black people experienced, white segregationists concocted many methods to maintain their economic power and ensure races didn’t mix. Some of these strategies were formal through passing legislation and informal by threatening violence against Black people who tried to integrate. Racially restrictive covenants straddle both formal and informal methods to maintain segregation.
The Great Migration led to changing racial demographics in urban areas. Segregationists attempted to restrict Black people to ghettos through legislative means. The first racial zoning ordinance was passed by Baltimore in 1910. It wasn’t until Buchanan v. Warley in 1917 that racial zoning was prohibited based on violations of the 14th Amendment and claimed zoning along racial lines “was to destroy the right of the individual to acquire, enjoy, and dispose of his property” (Buchanan, 1917).
Robert Weaver reiterates this in his 1944 article Race Restrictive Housing Covenants. He writes, “The socially more serious effect of having segregation, however, is not to force this tiny group of middle and upper class Negros to live among their own group, but to lay the Negro masses open to exploitation and to drive down their housing standards even below what otherwise would be economically possible” (Weaver, 1944).
With the more formal means of legislating segregation ruled unconstitutional, racially restrictive covenants between private parties flourished. There were two methods used to implement these covenants, (1) from the developer and real estate industry side establishing them in newly built high-end urban residential areas or through sub-development plots and (2) white property owners self-organizing agreements with their neighbors (Brooks and Rose, 2013).
In 1948, Shelley v Kraemer came before the court after a Black family, J.D. Shelley and his wife, Ethel, bought a home in St. Louis disrupting the racial homogeneity of the neighborhood. The Supreme Court held that racially restrictive covenants on their own were not in violation of the 14th Amendment because they were private agreements between two parties. But enforcement was state action and therefore a violation of the Equal Protection Clause.
Despite being unenforceable after Shelley, racially restrictive covenants were still pushed forward in the Federal Housing Administration’s Underwriting Manual and as a standard industry practice under the guise of economic stability (Brooks and Rose, 2013). Rather than using racially explicit language, the Manual favored euphemisms like “incompatible groups.” And in the case of Fahey’s deed, many real estate professionals simply ignored the decision.
The complications of racial capitalism
Segregation as a policy project wasn’t just to keep races from mixing. According to Preston Smith, a Black studies and housing policy scholar, segregation “is primarily expressed in the price point, justified by the buying and selling of housing as a commodity, that generates profits for the real estate investor. When prices have not been high enough to exclude some buyers, then zoning, deed restrictions, and underwriting rules have been invented to ensure the stratification of housing markets” (2023).
The conflation of race and economic class can be seen in a 1943 Michigan case, Kathan v Stevenson. This case dealt with a subdivision deed restriction from 1912. While the deed restrictions never mentioned race, the subdivision was advertised to have a “high class character” (Brooks and Rose, 2013) and that high class character should exclude Black people from purchasing a home within the subdivision. While the white homeowner who brought the case lost, this demonstrates the “link that some owners drew between racial exclusiveness and residential niceness”(2013).
The real estate industry was familiar with this sentiment and used it to their advantage. Some real estate investors utilized racist “block busting” tactics to pressure white homeowners into selling property before marking up the price to Black homebuyers, accelerating the white flight urban phenomenon (Rothstein, 2017).
As the previous section explored, economic arguments ultimately swayed the court in Buchanan. When the court decided Shelley and racially restrictive covenants became “unenforceable,” enforcement migrated from state action to informal voluntary contracts.
White property owners voluntarily gave up some of their property rights for the perceived economic value of exclusion. Since the passage of the Civil Rights Act in 1964, economic class became one of the few acceptable forms of exclusion, and with our racist history, keeping value high means excluding on the basis of race. These economic factors remain some of the more challenging pieces of the policy solutions discussed today.
Policy solutions
Oregon has passed two bills attempting to address racially restrictive covenants: House Bill 4134 and House Bill 3294. In 2018, Fahey passed H.B. 4134. This was a bill that changed many details of the court process, mainly eliminating the court fees required to undergo this type of request. Unfortunately, H.B. 4134 had a very limited effect. Many property owners who were made aware of racially restrictive covenants struggled through bureaucratic hoops (Morrison, 2018). The homeowners of the first property deed to be successfully amended started the process after Fahey passed her bill in 2018 but they weren’t successful until Representative Daniel Nguyen took up the mantle to pass H.B. 3294 in 2023 (Eastman, 2024).
H.B 3294 implemented more reforms to the process and required county clerks to update the deed with court-ordered documents. These changes then become a part of the searchable property records at the county (2024).
H.B. 3294 is still largely symbolic as it requires a property owner to petition their county clerk’s office. That requires the property owner to know about the language and realize that it can be removed. If the bill were stronger and required the deed to be changed with new ownership, the question of authority arises. As explored in the previous section, covenants occupy a very specific type of private agreement. Only property owners have the authority to change their deeds. Does Oregon have the authority to remove this racist language from deeds?
Additionally, removing the language quite literally removes the evidence that this exclusion existed in the first place. It is archived in county records, but this policy solution only addresses the discomfort experienced from confronting Oregon’s and the real estate industry’s racist past.
The Unlocking Homeownership coalition led by Habitat for Humanity of Oregon is working in the 2025 Legislative Session to pass H.B. 3804 which attempts to more meaningfully address the impacts racially restrictive covenants have had on non-white families. In an interview, Shannon Vilhauer, Habitat for Humanity of Oregon’s Executive Director, said “H.B. 3804 is in conversation with the covenant study bill Washington [State] passed in 2023” (personal communication, March 11, 2025). She wanted to bring Washington’s success to Oregon.
Washington’s House Bill 1474 used a study of covenant restrictions to build political will and educate legislators about the streets and communities where this exclusion occurred (2025). From there it moves beyond Oregon’s symbolic removal of restrictive language to establish a program that supports homeownership for families of specific races who can demonstrate they lived in Washington when racially restrictive covenants were being used.
H.B. 3804 has a tough road to success. In President Trump’s flurry of executive orders during his first day in office, he targeted the special interest tax program Washington used in their homeownership program: the same one Oregon seeks to replicate. Vilhauer said they have to tread lightly to ensure this work continues but it doesn’t come at the cost of federal dollars (2025). It’s unclear if H.B. 3804 will be scheduled for a hearing.
Washington’s bill follows a “race-first” philosophy of policy (Smith, 2023), a product of the neoliberal era that aims to correct specific harms and requires recipients to demonstrate need or qualifying status. It’s favored over more “race-neutral” or universal policies that broadly address poverty.
According to Smith, these race-first policies can do more harm than good, it “…undermines collective support, which in turn feeds widespread pessimism about the effectiveness of public action” (2023). As seen in the ruling against affirmative action (Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 2023) race-first policies open themselves to attack by the same arguments that invalidated racially restrictive covenants in the first place.
The history of racially restrictive covenants exposes the deep entanglement of race, property, and power in the United States. Though legal segregation has been dismantled, its material impacts persist, shaping housing markets, homeownership rates, and economic opportunity. Oregon’s legislative efforts to address this history, while immaterial, reflect an ongoing struggle to reckon with systemic exclusion. Yet, as debates over race-first policies and federal constraints continue, the challenge remains: how can we move beyond merely acknowledging past injustices to implementing solutions that repair the damage? The fight for housing justice is not just about erasing the remnants of segregationist policies but about fundamentally reshaping a system that continues to produce racialized inequality.
This paper was originally written for Land Use Legal Aspects, a class by Ed Sullivan, J.D.
References
Anderson, M. (2018, May 25). Maps: Portland’s 1924 Rezone Legacy Is ‘A Century of Exclusion’. Sightline Institute. https://www.sightline.org/2018/05/25/a-century-of-exclusion-portlands-1924-rezone-is-still-coded-on-its-streets/
Boston Fair Housing (n.d.). Historic shift from implicit to explicit policies affecting housing segregation is eastern Massachusetts. Fair Housing Center of Greater Boston. Accessed on 2025, March 11. https://www.bostonfairhousing.org/timeline/1968-Housing-Discrimination-Today.html
Brooks, R. R. W., & Rose, C. M. (2013). Saving the neighborhood : racially restrictive covenants, law, and social norms. Harvard University Press. https://doi.org/10.4159/harvard.9780674073685
Buchanan v. Warley, 245 U.S. 60 (1917).https://supreme.justia.com/cases/federal/us/245/60/#tab-opinion-1927497
Eastman, J. (2024, March 8). Here’s what it takes to remove racist language from Oregon home deeds. Oregon Live. https://www.oregonlive.com/hg/2024/03/heres-what-it-takes-to-Remove-racist-language-from-oregon-home-deeds.html
Habitat for Humanity: Portland (2023, March 3) Staring Down the Homeownership Gap. https://habitatportlandregion.org/placeholder-for-homeownership-gap-story/
Kathan v. Stevenson, 307 Mich. 485, 12 N.W.2d 332 (Mich. 1943). https://casetext.com/case/kathan-v-stevenson
Mandelker, D. R., Brown, C. N., Freeman, L.M., Meck, S., Merriam, D. H., Salsich, P. W. Jr., Strou, N. E., Sullivan, E. J. (2020). Planning and control of land development: Cases and materials (10th edition). Carolina Academic Press.
Miller, D. (Host). (2021, August 3). Good deeds program helps to remove racial exclusion language from home deeds [Radio] in Think Out Loud. Oregon Public Broadcasting.https://www.opb.org/article/2021/08/03/good-deeds-program-helps-to-remove-racial-exclusion-language-from-home-deeds/
Morrison, E. (2018, May 31). Signs Of Oregon's Racist Past Might Be In The Documents Of Your Home. Oregon Public Broadcasting. https://www.opb.org/news/article/oregon-racist-history-deed-restrictive-covenant/
Rothstein, R. (2017). The Color of Law: A Forgotten History of How Our Government Segregated America. Liveright.
Shelley v. Kraemer, 334 U.S. 1 (1948). https://supreme.justia.com/cases/federal/us/334/1/
Smith, P. (2023, Spring). Race and the Housing Question. Catalyst. 7(1). https://catalyst-journal.com/2023/06/race-and-the-housing-question
Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. (2023). https://supreme.justia.com/cases/federal/us/600/20-1199/
Weaver, R. C. (1944). Race Restrictive Housing Covenants. Journal of Land and Public Utility Economics, 20(3), 183–193. https://doi.org/10.2307/3159245
