Rebellious Lawyers for Fair Housing: The Lost Scientific Model of the Early NAACP

Abstract

Historically-rooted patterns of racial segregation in housing remain a significant contributor to racial inequities in health, intergenerational wealth, and life chances more generally. This article uncovers a powerful but long-forgotten model for rebellious lawyers in the struggle for fair housing. I draw this model from archival research into the innovative early NAACP lawyers who litigated racially restrictive covenants from the 1910s to the 1940s. Facing a hostile judiciary, and with little legal precedent on their side, these lawyers turned their attention to a fundamental conceptual obstacle to their cause: what they termed “property in a sociological vacuum.” In this view, property ownership as an entirely private manner unrelated to the public interest and social context more generally. Under the vacuum logic, segregationist lawyers had convinced the courts that supporting racial covenants was a racially innocent defense of white homeowners’ property rights. The early NAACP lawyers countered this vacuum understanding of property by radically departing from the conventional norms of legal advocacy. In their briefs and oral arguments, they refuted the vacuum view on theoretical grounds and backed up their position with social-scientific findings that mapped out the pervasive use and devastating impacts of racial covenants in communities of color. Courts had never before been presented with such an enormous trove of social scientific research in civil rights litigation. This strategy reached full expression in Shelley v. Kraemer (1948), the land US Supreme Court decision that rendered racially restrictive covenants unenforceable. Shelley is a well-studied staple of the 1L curriculum, but legal history has largely ignored the decades of legal efforts that made it possible. This article traces that history in detail. I show how NAACP affiliated lawyers identified the vacuum view of property as a central target in their litigation strategy and then worked with academics and other social movement allies to develop a vast body of empirical research. This strategy enabled these lawyers to fill the sociological vacuum around property. In this way, they forced the judiciary to see that racial covenants were more than purely private instruments of individual landowners but rather had formed a pervasive land policy of racial apartheid, slum conditions, and excluding people of color from homeownership. I conclude by arguing that this “lost scientific model” should be emulated by today’s fair housing lawyers, who continue to encounter the vacuum view of property as a core theoretical obstacle to racial integration and inclusion.