Deep Divisions

With his most recent book, new faculty member Richard R.W. Brooks examines the sordid history and lasting impact of racially restrictive covenants

By Paula Span

Fall 2013

When new Columbia Law School faculty member Richard R.W. Brooks dedicated his latest book to his mother, paying tribute to her as “a pioneer and game-changer,” he had in mind the modest, white, Cape Cod–style house she bought in 1981 on a suburban street in East Norwalk, Conn.

Trudy Travers had emigrated from a small Jamaican town, leaving her two sons with their grandmother while she attempted to establish a place for them in the United States. By working several jobs, she had finally saved enough to become a homeowner and was able to leave the grittier part of Norwalk for a leafy, pleasant, and, as it happens, nearly all-white neighborhood. “It was strictly middle class, but for us it felt like a huge leap,” says Brooks, who was 7 when he followed his mother to the U.S., and was just finishing the ninth grade when they moved into their new home. 

Though his mother tried to shield him from their neighbors’ hostility, Brooks felt it anyway. “They left intimidating phone messages and notes on the front door,” he recalls. Others complained to the zoning board because a family friend had moved into a spare bedroom and helped pay the mortgage. Some neighbors even called the health department. “It continued like that for years,” Brooks says. “My mom was somewhat of a block-buster.”

The experience—growing up in Connecticut with brown skin and “a funny accent”—left him “curious about the way people interact around differences,” he says. That curiosity led, among other things, to his latest book, Saving the Neighborhood: Racially Restrictive Covenants, Law, and Social Norms, which Brooks co-authored with Carol M. Rose. The work teems with in-depth research, as the authors trace the rise of racially restrictive covenants—deed restrictions that governed to whom an owner or developer might sell his or her property—and how these clauses served to legitimize segregated neighborhoods. They argue that, to this day, such covenants have a lingering impact on housing patterns and race relations.

Beyond his work on the history of American housing discrimination, Brooks brought along several other scholarly projects investigating differences when he joined the Columbia Law School faculty this summer—including explorations of race and class in many aspects of American life. He specializes in applied game theory, contract theory, and empirical analysis of law.

“Rick is one of our nation’s preeminent legal academics,” said David M. Schizer, Dean and the Lucy G. Moses Professor of Law; Harvey R. Miller Professor of Law and Economics, in announcing Brooks’ appointment as the Law School’s Charles Keller Beekman Professor of Law, “and we are delighted to welcome him at Columbia.” The fourth faculty member recruited from Yale Law School in the past five years, Brooks, who is 47, holds degrees in economics from Cornell and the University of California, Berkeley (where he earned his Ph.D.), and he graduated from the University of Chicago Law School.

Brooks’ latest book, Saving the Neighborhood, is briskly written, with a cast of characters that includes jurists and activists, NAACP litigators and racially steering realtors, idealists, hustlers, the developer of Levittown, and playwright Lorraine Hansberry’s father. It analyzes how racially restrictive covenants emerged as a lawful way to prohibit African-Americans (as well as Jewish people and other minorities) from moving into white neighborhoods after the Supreme Court outlawed racial zoning in the 1917 case of Buchanan v. Warley.

Covenants forbidding sales or rentals to African-Americans became extremely common in great swathes of Chicago, Cleveland, Detroit, and other cities during the first half of the 20th century. Following decades of extensive use, the provisions reached the point of being an established element in American real estate transactions, before the Supreme Court, in Shelley v. Kraemer, ruled them unenforceable in 1948. But if such covenants held legal sway for a limited period, Brooks and Rose argue that they continued to have influence because they reflected and solidified social norms. “They were creating a custom of discrimination, normalizing discrimination,” he says. “They guided behavior.”

And while the book deals mostly with practices and legal mechanisms of the past, housing discrimination persists, Brooks notes. In June, the U.S. Department of Housing and Urban Development (HUD) released the results of a study that dispatched white and minority “testers” to visit thousands of real estate agents and other housing providers requesting information on available places to live. Though the most overt form of discrimination, known as “door-slamming,” had receded since HUD first began these periodic surveys in 1977, the study found that African-Americans are still shown fewer available homes and rental units than whites—who also receive more favorable financial terms.

Brooks is quick to point out that the influence and lasting impact of racially restrictive covenants would never have been possible without the consistent backing of allies and supporters—individuals and entities that Brooks and Rose refer to as “norm entrepreneurs”—who conspired to discourage integration. These included developers, real estate brokers, and the New Deal’s Federal Housing Administration (FHA), which warned about “inharmonious racial groups” in its underwriting manual. “The FHA thought its mission was to increase home ownership and neighborhood property values, and integrated neighborhoods was not a strategy to accomplish that,” Brooks says. “It rationalized its clearly discriminatory policy.”

Arrayed against these forces were those the authors dubbed “norm breakers,” a category that included NAACP lawyers, the African-American press, and integrationists such as Carl Hansberry, a black Chicago businessman. Hansberry managed to buy a house in a covenanted neighborhood through a straw buyer—a cooperative white intermediary who posed as the new owner, then sold it to him—and took his case all the way to the Supreme Court. (His daughter, Lorraine, dramatized these issues in her now-classic play, A Raisin in the Sun.)

In a less obvious way, “blockbusters,” real estate brokers who fanned racial fears for personal gain, also played a role in undermining covenants. While Brooks describes some as “undoubtedly sleazy”—moving truly undesirable residents into white neighborhoods to induce homeowners to sell at bargain prices so the brokers could resell at a profit, for instance—he points out that some were looking to help dismantle segregation. “They felt they were on the side of justice,” he says.

In fact, as Brooks continued his research, he says he became more conscious of the complexities at play in the history of housing discrimination. “By the end, it was so much more complicated than bad guys and good guys,” Brooks says. “Everybody became more nuanced.”

The process of researching and writing Saving the Neighborhood involved not only sifting through online legal archives, but filing Freedom of Information Act requests at the National Archives and visiting several cities where legal battles over covenants were waged. “For some of this, you actually have to go to city hall to look at the tract books and the ordinances,” he adds. The work required him to function as a historian, an anthropologist, and a game theorist, as well as a legal scholar.

Brooks’ scholarship has led him to examine a broad range of other legal, economic, and social justice issues throughout his career, from the lack of credit institutions in low-income neighborhoods to minorities’ perceptions of the legal system. He was among several professors who filed an amicus brief in the Fisher v. University of Texas affirmative action case that the Supreme Court in June sent back to an appeals court for a more rigorous inquiry into the university’s rationales for using race as a factor in admissions determinations. The decision permits affirmative action in higher education to continue for the present, but calls for tougher review standards that could undermine its future.

The brief argued against the “mismatch” hypothesis, which posits that permitting race as a consideration in admissions decisions can ultimately harm minority students, an idea, Brooks argues, that is not empirically demonstrated. “I actually think some mismatch is good,” he adds. “When surrounded by people with stronger incoming credentials, that can drive you to learn more, can improve your own game and ambition.” 

At Columbia Law School—where he will be teaching contracts, corporate law, fiduciary law and economics, and game theoretic analyses of law—Brooks will continue to explore differences and their impact. He has also begun writing his next book, which concerns how formal titles and forms of address—from the Constitutional prohibition against granting any American a “title of nobility” to the post–Civil War practice in Southern courts of referring to black attorneys as “Lawyer So-and-So,” not “Mr.”—play a role in social interaction.

Also on Brooks’ agenda is a decade-long study of race and class on Martha’s Vineyard, which has been home to both whites and blacks since the 17th century, along with an ever-decreasing number of native Wampanoags. For this project Brooks undertakes an empirical multi-method approach, such as measuring the distances that groups of beachgoers choose to keep between them, and how race and gender influence their comfort zones. He has also calculated the distances between graves in local cemeteries and studied the way religious practices relate to their geographic orientation. 

“It’s a project about how groups form and how groups persist,” Brooks says. “Once these racial entities exist, you observe these patterns in ordinary, everyday activities. And even after death, segregation can continue by law.”

Paula Span teaches at the Columbia University Graduate School of Journalism and writes The New York Times’ New Old Age blog.