Contributions of Missouri’s Black lawyers to securing equal justice: Shelley v. Kraemer
Part 4 of 4
Editor's note: In 1989, Saint Louis University School of Law Assistant Professor Leland Ware republished this article, examining the history of Black lawyers in Missouri during the late nineteenth and early twentieth centuries, in the Journal of The Missouri Bar. The author is now the Louis J. Redding Chair and Professor for the Study of Law and Public Policy at the University of Delaware's School of Urban Affairs and Public Policy. In recognition of February's celebration of Black History Month, we are pleased to republish this article online.
Shelley v. Kraemer
Ten years after Gaines, Black lawyers in Missouri were once again responsible for the elimination of racial barriers which denied equal opportunities to Black citizens. The Supreme Court's decision in Shelley v. Kraemer was the result of an organized effort involving hundreds of cases over a 30-year period. As in the school desegregation cases, the NAACP's network of Black attorneys facilitated the campaign against housing discrimination. In its 1930 grant application to the Garland fund, the NAACP had specifically targeted racially restrictive covenants. Numerous cases had been litigated in the ensuring years without much success. As a consequence, in 1945, the NAACP convened a series of conferences to discuss the restrictive covenant cases and to develop an overall strategy for securing a victory in the Supreme Court. In 1948 four cases were decided together in two separate opinions: Shelley v. Kraemer from St. Louis and McGhee v. Sipes from Detroit and two cases involving properties located in the District of Columbia, Hurd v. Hodge and Uricolo v. Hodge. Thurgood Marshall handled the District of Columbia cases and George Vaughn represented the Shelleys.
The property that the Shelleys purchased was located at 4600 Labadie Avenue in St. Louis. After the Shelleys indicated an interest in purchasing the home, a Black realtor arranged a sale through a white intermediary. The intermediary negotiated a sale to a "straw" purchaser who later transferred title to the Shelleys' agent, who purchased the property and immediately re-sold the property to the Shelleys. When the Shelleys took possession of the Labadie Street property on October 9, 1945, they were unaware of the existence of the restrictive covenant. Consequently, they were quite surprised when they were served with a lawsuit which sought their eviction on October 10. The Shelleys were represented by George L. Vaughn, a Black attorney who had served as the first president of the Mound City Bar Association.
The covenant at issue in Shelley provided the properties covered by the covenant could not be "occupied by any person not of the Caucasian race.”43 When Kraemer v. Shelley came to trial, Vaughn implemented the litigation strategy that was outlined in the meetings convened by the NAACP.44 Vaughn argued that the covenant was defective because it contained faulty property descriptions and had not been executed by all of the property owners. Vaughn argued further that the character of the neighborhood had changed since a number of black families already resided in the vicinity. Vaughn also claimed that the covenant violated the Missouri Constitution, the United States Constitution and the 1866 Civil Rights Act. Vaughn's witnesses also testified about overcrowded conditions within St. Louis' Black district and the effects of overcrowding on health and crime. After two days of hearings, the trial court ruled that that covenant was defective because it had not been signed by all of the property owners to which it purported to apply.
The decision was appealed and the Supreme Court of Missouri, sitting en banc, entered an order reversing the trial court's decision on December 9, 1946. The Court held that the signatures of all of the property owners were not required since the covenant was limited to the properties whose owners had actually executed the 1911 covenant. The Court also held that the exclusion of certain parcels from the covenant's coverage did not affect the agreement's validity because there was never any intent to cover the excluded properties. It held that covenants did not violate public policy because "agreements restricting property from being transferred to or occupied by Negroes have been consistently upheld by the courts of this state,"45 and that "the restriction does not contravene the guarantees of civil rights of the Constitution of the United States.” 46
Vaughn filed a petition for a writ of certiorari on April 21, 1947. The request was granted on June 23, 1947.47 After learning that certiorari had been granted in Shelley v. Kraemer, Thurgood Marshall prepared a writ of certiorari for McGhee v. Sipes. Certiorari was eventually granted in that case and in Houston's District of Columbia cases. Following the practice which was established 10 years earlier in Gaines, a dry run was held at Howard Law School prior to the oral arguments in Shelley. The Dean of the Law School arranged the rehearsal for the Shelley arguments, and it is said that a second-year student asked a long and rambling question which was ultimately vindicated when the same point was raised during oral argument, by Justice Frankfurter.48
Vaughn presented the argument in Shelley. He argued that the judicial enforcement of covenants constituted state action and stressed his claim that that covenants violated the Civil Rights Act of 1870.49 Vaughn characterized racial restrictive covenants as "the Achilles heel" of American democracy.50 In what observers remembered as the most dramatic point in the seven hours of argument, Vaughn, the son of a slave, stated in a voice that reverberated through the corridors of the Court, that the "Negro knocks at America's door and cries, Let me come in and sit by the fire. I helped build the house.”51 Vaughn emphasized the "American door" remarks by rapping sharply on the counsel table. The sound of his knuckles striking the table resonated throughout the then silent courtroom and supplied a climax to his argument that mere words never could.52
On May 3, 1948, the Supreme Court issued its decision in Shelley v. Kraemer and McGhee v. Sipes.53 Chief Justice Vinson delivered the Court's decision. After noting that the Fourteenth Amendment "erects no shield against private conduct however discriminatory or wrongful,"54 the Court directed its discussion to a consideration of the types of state action involved in previous decisions involving direct action by legislatures. In those cases, the Court said, state action was clearly involved because the challenged actions involved statutes or ordinances that were enacted by legislative bodies. This case, in contract, involved "the patterns of discrimination and the areas in which the restrictions are to operate are determined, in the first instance, by the terms of an agreement among private individuals."55 Since the state's involvement in this case was limited to the enforcement of private agreements, the critical question here involved a determination of whether judicial enforcement of the restrictive covenants was "state action" for purpose of the Fourteenth Amendment. The answer to that question, in the Court's view, was affirmative. "[T]hat the action of state courts in their official capacities is to be regarded as action of the state within the meaning of the Fourteenth Amendment, is a proposition which has long been established by the decisions of this court."56
After citing a number of cases in which the actions of state courts were held unconstitutional under the Fourteenth Amendment, the Court reasoned that the Fourteenth Amendment was not restricted to situations in which the judicial proceedings were themselves found to be procedurally unfair. The Court stated that judicial enforcement of a common law right may violate the Fourteenth Amendment even where the judicial proceedings were themselves in complete accord with the most rigorous standards of procedural due process. As a result, the Court concluded that the "state action" contemplated by the Fourteenth Amendment "includes action of state courts and state judicial officials.” 57
The Court reasoned further that there had "been state action in these cases in the full and complete sense of the phrase."58 To support this determination, the Court observed that without the intervention of the state courts, the Black families involved in Shelley would have been free to occupy the properties in question without interruption. The Court believed that it did not matter that the state's involvement arose from a private agreement because "the Fourteenth Amendment refers to exertions of state power in all forms."59
Turning finally to the contentions of the respondents - that there was no denial of equal protection because Black families were free to execute covenants prohibiting the sale of properties to whites and they were equally free to secure judicial enforcement of such covenants - the Court illuminated the specious basis of this argument by observing that there had never been a reported instance in which a Black family had attempted to exclude a white family from a Black neighborhood. On a more substantive note, the Court noted in the opinion's most memorable passage that "[e]qual protection of the law is not achieved through indiscriminate imposition of inequalities."60 For these reasons, the Court concluded that "in granting judicial enforcement of the restrictive agreements in these cases, the states have denied petitioners equal protection of the laws."61
The Gaines and Shelley cases were significant strides towards the elimination of legally sanctioned racial
discrimination. Gaines marked the beginning of the end of the separate but equal legal fiction and the 1948 decision in Shelley set the stage for Brown which was decided just six years later. The organized legal campaign begun in 1930 with the grant from the Garland fund and the NAACP's litigation strategy reached its climax when the Supreme Court reversed the Plessey decision with Brown. All of these decisions stand as monuments to the NAACP and the Black attorneys who implemented that organization's legal strategy.
Up to the late 1950s, the thrust of the Civil Rights movement was directed through the Courts. Without the NAACP's success in Brown v. Board of Education in 1954, the freedom marches of the 50's and 60's might not have occurred. These accomplishments would not have been possible without the assistance of the hundreds of Black attorneys who maintained practices in the cities and towns across the nation. They shared a common vision and they endured years of sacrifice and effort to accomplish their goals. The efforts of "very able lawyers" like Charles Houston, Sidney Redmond and George Vaughn made these victories possible.
1 305 U.S. 337 (1938).
2 334 U.S. 1 (1948).
3 See generally, Nathan Young, Early Black Lawyers in St. Louis, THE ST. LOUIS BLACK JOURNAL 30:4 (Spring 1984); Anne-Marie Clarke, The History of the Black Bar, THE ST. LOUIS BAR JOURNAL 30:4 (Spring 1984).
4 St. Louis Argus, January 13, 1922 p. 1, reprinted in, Clark, The History of the Black Bar, supra, at p. 19.
6 See Smith, The Black Bar Association and Civil Rights, 15 CREIGHTON L. REV. 651 (1982).
7 Stanford Richardson, Homer G. Phillips: the Man, the Hospital, THE ST. Louis BAR JOURNAL 30:4 (Spring 1984).
8 Richardson, Homer Phillips, supra, at p.33.
9 See generally, Genna Rae McNeil, CHARLES HAMILTON HOUSTON AND THE STRUGGLE FOR CIVIL RIGHTS (University of Penn. Press 1983); Mark V. Tushnet, THE NAACP's LEGAL STRATEGY AGAINST SEGREGATED EDUCATION 1925-1950 (University of North Carolina Press 1987); Richard Kluger, SIMPLE JUSTICE: A HISTORY OF BROWN V. BOARD OF EDUCATION AND BLACK AMERICA'S STRUGGLE FOR EQUALITY (Vantage Press 1975).
10 Tushnet, supra, p. 7.
11 Id. p. 14.
12 163 U.S. 537 (1896).
14 McNeil, supra, at 86-105.
15 Note, 35 HARV. L. REV. 950 (1922).
16 Raymond Logan, HOWARD UNIVERSITY: THE FIRST HUNDRED YEARS (1969).
17 Tushnet, supra pp. 1-24; McNeil, supra, pp. 86-106.
18 Kluger, supra, p. 203.
19 182 A.2d 591 (1936).
20 Kluger, supra, 203-204; McNeil, supra, pp. 144-144. See also Lucille Bluford, The Lloyd Gaines Story, 32 JOURNAL OF EDUCATIONAL SOCIOLOGY 243 (1959); Larry Grothaus, The Inevitable Mr. Gaines, 26 ARIZONA AND THE WEST 21 (1984).
21 Kluger, supra, at p. 203.
23 Id. at 203-204.
24 118 S.W2d 785.
25 Id. at 786.
27 Id. at 787.
28 Id. at 788.
29 Id. at 789.
32 Id. at 790.
33 118 S.W2d at 791.
34 McNeil, supra, 143-144.
35 305 U.S. at 346.
36 Id. at 347.
37 Id. at 345.
38 Id. at 348.
39 Id. at 349.
40 Id. at 350.
41 Id. at 351.
42 The actual integration of the University of Missouri was delayed for several years after Gaines disappeared. In the interim, the State of Missouri hastily established a law department at Lincoln University which operated in St. Louis until the early 1950s.
3 Kraemer v. Shelley, 198 S.W.2d 679, 681 (Mo. 1946).
44 At the first meeting, Charles Houston urged the attorneys present to assert various technical and Constitutional defenses and to demonstrate with expert testimony, the role of restrictive covenants in the overcrowded and deteriorating conditions of ghetto housing.
45 198 S.W2d at 682.
47 331 U.S. 803 (1947).
48 McNeil, supra, p. 162; personal recollection of Professor Gerald T Dunne of conversation, 1960, with Herman Wilier.
49 Arguments Before the Court: Enforcement of Restrictive Covenants, 16 U.S. L. WEEK 3219-20 (Jan. 20, 1948). Charles Houston argued on behalf of the Black home purchasers in the two District of Columbia cases and Thurgood Marshall argued McGhee v. Sipes. Solicitor General Phillip Perlman argued for the United States which appeared as amicus in support of the NAACP
50 Id. at 3220.
52 Personal recollection of Professor Dunne, of conversation with Herman Wilier, 1960. Herman Wilier, who was Vaughn's co-counsel, followed Vaughn with a summation of the primary legal arguments.
53 334 U.S. 1 (1948).
54 334 U.S. at 13.
57 334 U.S. at 18.
58 Id. at 19.
59 Id. at 20.
60 334 U.S. at 23.
61 Id. In the Hodge case, the Court relied on a nearly forgotten District of Columbia statute to invalidate the racially restrictive covenants challenged in those cases. 334 U.S. 24 (1948).