Discrimination in Deed
Vermont homebuyers find segregation is still in fine print.
While house hunting last March, Sarah Judd made an unpleasant discovery. It happened after she bid on a cute yellow Cape on Birchwood Court, just off of Shelburne Road in South Burlington. When her realtor brought over the paperwork for her to sign, the attorney and Vermont Public Interest Research Group development director read it carefully. "Being a lawyer, I have a tendency to go through these things," she explains.
What she found shocked her. The property, part of the Birchwood subdivision, is subject to certain "protective covenants," approved by the South Burlington town clerk on September 28, 1940. Most of the restrictions pertain to zoning, but Covenant F caught Judd's eye: The neatly typed line reads,"No persons of any race other than the white race shall use or occupy any building or any lot."
"I really died when I saw that," says Judd, who is Caucasian. "It's pretty amazing, that kind of blatant prejudice." Her lawyer pointed out that this covenant isn't enforceable -- the Supreme Court ruled race-based restrictive covenants unconstitutional in 1948. But binding or not, restrictions like this have the power to shock a generation that grew up with school vacations on Martin Luther King, Jr. Day. It's unsettling to learn that you don't have to visit a history museum to see evidence of state-sanctioned segregation; it's still on display in municipal vaults across the country, including here in the famously liberal, solidly "blue" state of Vermont.
Anyone can dig up these covenants -- they're public record. The document Judd describes resides in the vault at the South Burlington town offices on Dorset Street. It's in one of the heavy maroon-and-gold ledgers that contains the land records -- Volume 11, Part 1, to be exact -- tucked inside a plastic sleeve labeled page 177b.
It reads like boring legalese. Except for Covenant F. And it's not exactly true that only whites could live there. The provision makes an exception for "domestic servants of a different race domiciled with an owner or tenant." Apparently no one wanted to discriminate against good help.
The Birchwood racist covenants were recorded in 1940, which surprises most lawyers familiar with such documents. These types of restrictions were more common in the 1920s and '30s -- two racially charged decades when the Ku Klux Klan wielded significant influence around the country and a white-supremacist eugenics movement flourished here in Vermont.
Racist covenants were typically inserted by developers who bought large chunks of land -- often from farmers -- then divided them into individual lots. In an effort to make a new subdivision more "desirable," the land brokers often allowed only Christian whites. The practice was fairly common in large urban areas such as Chicago, where tens of thousands of properties carry illegal covenants.
Carl Lisman, a Burlington lawyer who's been practicing for more than 30 years, compares racist covenants to "an airborne disease" that sprang from fear and ignorance. He claims to have done title searches in nearly every town in the state, and says the restrictions are rare in Vermont. "I can count on the fingers of two hands, maybe only one hand, the number of times I've seen covenants that are restricted like that," Lisman says. That's not necessarily because Vermonters weren't racist, he notes -- perhaps the state's largely homogeneous population simply felt less threatened than whites in other parts of the country.
Several other lawyers and title examiners interviewed for this article -- including former governor Phil Hoff -- report that they've never encountered any racist restrictive covenants in Vermont, though a woman at the South Burlington city clerk's office says she found one in a deed for her first home on North Avenue in Burlington. It's impossible to know for sure how many there are; no comprehensive study of Vermont's racist housing covenants exists and, unless you're looking for a specific deed, they're difficult to find.
There is one famous example, however: that of Supreme Court Chief Justice William Rehnquist, who bought a summer home in Greensboro in 1974. His land was once part of a farm sold to Henry Cummings in August 1926. A month later, Cummings transferred the land to a corporation called Vermont Summer Estates, Inc., which divvied up the estate and sold it off piecemeal to out-of-staters -- as long as they weren't Jewish.
Following the paper trail for Rehnquist's deed reveals that Vermont Summer Estates sold the land to a couple from Brooklyn in September 1933. Their deed, handwritten in perfect cursive, can be found on page 728 of Book P in the Greensboro town vault. In between restrictions on sewage systems and the building of boathouses is a line that reads, "No lot or building shall be sold or leased to a member of the Hebrew race."
The Brooklyn couple sold the land to a woman from Bermuda, who sold it in turn to a couple claiming residence in Minnesota and New York. The Rehnquists, who live in Virginia the rest of the year, later bought it from them.
Rehnquist was already on the Supreme Court at the time, but no one raised a fuss until 1986, when President Reagan nominated him for Chief Justice. The covenant created a controversy during his confirmation hearings. Reporters and camera crews converged on the Greensboro town offices to see the offending deed for themselves.
Reached at his summer home, the Chief Justice claims he knew nothing about any of this when he bought the place -- apparently he didn't read the fine print. When did the nation's leading legal arbiter first hear about the anti-Semitic clause in his deed? "I think probably during my confirmation in 1986," says the 79-year-old Rehnquist.
To his credit, once he was thrust into the spotlight, Rehnquist expunged the discriminatory covenant from his deed. "I did what I think Senator Leahy recommended," he recalls. On September 1, 1986, the Rehnquists sold the property to David Willis of Barnet and, on September 3, they bought it back. The covenants have been typed directly onto the new deed, but the line about barring Jews has vanished. "It's about the best you can do," says the Chief.
But Lisman says Rehnquist's act was merely symbolic. If the covenant were legally binding -- that is, if such discrimination were still legal -- the racist restriction might still apply. "It's a nice gesture," says the lawyer, "but it probably doesn't make a bit of difference."
There are a couple ways to excise these clauses, depending on how they're written, according to Lisman. Owners might have to collect signatures from every person who owns a lot in a given subdivision, agreeing to strike the covenant from the records. Or they might be able to take the matter before a judge, who could declare the restriction null and void. "You can't go into the land records and just tear things out of the book," Lisman says.
When Sarah Judd found out about the covenant on the property she wanted to buy in South Burlington, she was prepared to do whatever it took to remove it. "My family is multiracial," she says. "I couldn't sign that." But Judd didn't have the chance to change the record -- someone outbid her for the house. She ended up buying an uncovenanted lot in Burlington's Old North End instead.
Hal Colston, the diversity coordinator for Howard Human Services, supports Judd's position on removal. An African-American, Colston is not surprised that these covenants still exist. Though the days of state-sanctioned segregation have passed, he insists the attitudes that went with it still linger. "When you don't get the job, when you don't get the apartment, this is what underlies it," he says.
Colston argues that, enforceable or not, the fact that these covenants remain on record sends a message. "I think it's easy for someone who's in a position of power to say that it doesn't matter," he says. "But you talk to people who are marginalized and disenfranchised, it's huge...I believe that if we really want to be a pluralistic society, then these comments have no place in our society, and they must be revised."
Rabbi Joshua Chasan of Burlington's Ohavi Zedek Synagogue takes a different approach. When he bought a house on North Prospect Street, someone at the bank told him the property carried a restriction barring Jews from owning the land. He says he never saw that language in his deed, and a search through Burling-ton's vault failed to turn up any evidence of the claim. Chasan says he wouldn't be surprised if it's true. "I know members of my congregation for whom walking to school was dangerous," he says.
But if his deed did originally contain an anti-Semitic covenant, Chasan probably wouldn't expend the effort to remove it. "I look upon it as a historical document," he says, noting that leaving the offensive language intact preserves the evidence of racism. It's a legacy that many people find easy to forget. "The state has come a long way in accepting difference," he says. "I don't think I've ever lived any other place where there was more of a sense of mutual respect."
For the record, there's still plenty of sexist language embedded in Vermont's real-estate documents. All the old deeds still read, "Know ye all men."