Opposing racism should be a no-brainer. But getting rid of historic remnants of racism can be complicated, expensive and may take more time and assistance than one might think.
That’s what Washington is discovering in its nation-leading effort to remove racist or other discriminatory language from property deeds, covenants and titles while ensuring the history of this racial discrimination isn’t forgotten.
There are tens of thousands – perhaps hundreds of thousands – of property records with such restrictions in Washington. They aren’t enforceable. They aren’t legal. But removing them is taking the joint effort of historians, computer experts, county officials and some 170 volunteers willing to comb through records in search of the offensive language.
Restrictions on who could buy homes in certain developments – generally speaking, “whites only” rules – go back more than a century.
Efforts to end them, primarily through court orders, show the persistence some people have for keeping other people out. After the U.S. Supreme Court ruled in 1917 that cities couldn’t use zoning laws to keep racial or ethnic minorities from moving into a block that didn’t already have a majority of other minorities, developers started attaching covenants to their properties that restricted an owner from selling to a buyer who wasn’t white.
In 1948, the U.S. Supreme Court ruled that racially discriminatory covenants, while not illegal, were unenforceable because enforcement would require help from the government, thus violating the 14th Amendment.
That didn’t stop developers from attaching racially restrictive covenants to new properties, including for lots on Spokane’s Comstock Park neighborhood in 1953, which included a covenant restricting ownership to “no other race or nationality other than the white race.”
Full disclosure: Comstock Park was developed in part by Spokesman-Review publisher William H. Cowles Jr., the grandfather of current publisher William Stacey Cowles and Betsy Cowles, chairman of Cowles Co. In a previous statement, Betsy Cowles said it wasn’t clear what role William Cowles had in the development of property, but “what is very clear is that such racial segregation is offensive and in no way represents our company or family values.”
Under the U.S. Fair Housing Act of 1968, such covenants became illegal. Washington followed suit in 1969, declaring such covenants void and repugnant and said property owners could “remove all remnants of discrimination from their deeds.”
But the law didn’t exactly say how to do that.
That created a problem when Alex and Alexandra May bought a home in Comstock Park Addition in 2017 with a deed subject to what appeared in the public record, which included the racist covenants even though a previous owner took steps to have them declared void.
May went to court to get the language removed. Spokane County Auditor Vicky Dalton said she didn’t have the authority to remove something from the public record. The trial court agreed with Dalton, as did two of three appeals court judges and, in March, the state Supreme Court.
Before the state Supreme Court ruled, however, the Legislature passed a law saying property owners can obtain a court order removing the language, have the revised document filed in the public records with a notation that the original document was corrected, and the original document held separately, either at the county or the state archives.
That 2021 law strikes a balance between keeping a historical record of racism and allowing property owners to remove the repugnant covenants from their titles, the unanimous court said. Removing all trace of the covenants would not eradicate discrimination but merely the evidence discrimination existed.
“We must ensure that future generations have access to these documents because, although the covenants are morally repugnant, they are part of a documented history of disenfranchisement of a people,” the court said. “It is our history.”
Last week, the House Local Government Committee got an update on efforts by a special commission to accomplish the Legislature’s goals. James Gregory, a University of Washington history professor, said people at UW and Eastern Washington University are working on a website that would help property owners research whether their legal documents include such language. A student who is a computer whiz has developed a program that can read digitized property records and flag potentially offensive language, and 169 people have volunteered to read those records and determine whether the language actually is discriminatory.
They have as many as 20,000 digitized records for King County properties and 5,000 for Pierce County. But the bad news is that most of the more than 6 million property records in Washington are not digitized, including many from 1930 to 1950, a prime time for attaching racist covenants to property being developed.
Eventually, a property owner will be able to type an address into a website and see deeds and covenants for that property. If any document includes discriminatory language the homeowner wants removed, they will be able to file a request online, make an appointment to have it notarized for free and have the change filed, said Phil McBride, a Realtor who is a member of the commission. Amazon is helping with the website, which he said will eventually be available free to other states and cities also looking to address racist covenants.
Although the 2021 law gives county auditors the authority to adapt, remove or redact racist language, the state still needs procedures for doing that, Dalton, who is also a commission member, told the House committee. A group established by a separate law is working on those procedures, which will eventually go to the secretary of state for final approval.
Even with these obstacles, the Washington law is “the best in the country,” Gregory said. It may become a model for other states and cities looking to remove racist language from their property records.