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Are Restrictive Covenants Banning Sale of Property to the "Yankee Race" Legal?:

Property law professors Alfred Brophy and Subha Ghosh have an interesting and amusing paper discussing the legality of South Carolinian Henry Ingram's efforts to enforce a restrictive covenant banning the sale or lease of his property to members of "the Yankee race." (hat tip Propertyprofblog).

Brophy and Ghosh argue that Ingram's restrictive covenant violates common law rules against restraints on alienation, the 14th Amendment ban on racially restrictive covenants (as applied in the famous 1948 Supreme Court case of Shelley v. Kraemer), and the Fair Housing Act of 1968.

I am not so sure about the latter two arguments. Although Ingram's covenant is aimed at the "Yankee race," he defines this group to include anyone born north of the Mason-Dixon Line or residing there for one year or longer. The people banned from purchasing under this rule could easily be of any racial or ethnic origin, as could those still permitted to become buyers. It is possible, as Brophy and Ghosh suggest, that the mere use of the word "race" implies a racial classification, but I'm not convinced that this will work.

A better argument (one that the authors hint at, but don't quite make) is that even if the text of the covenant is neutral as regards to race and ethnicity, its purpose is to exclude members of the northern "Yankee" ethnic group. "Facially neutral" criteria that are intended to exclude members of a particular racial or ethnic group are illegal under the Fair Housing Act and also under the Equal Protection Clause (if there is state action). Based on Ingram's statements (quoted in the Brophy-Ghosh article), it seems clear that his motive is a generalized hostility to "Yankees," and the 1 year rule merely a means of implementing it. For example, Ingram has said that "Yankees" are "worse than fire ants" and has described his goal as "ensur[ing] that the Yankees will never again own or control large tracts of land that rightfully belong in Southern hands and under Southern domination." While "Yankees" are a more amorphous ethnic group than, say, Hispanics or Irish-Americans, the history of cultural differences and antagonism between north and south suggest that they are indeed a definable ethnic and cultural group, and as such covered by the Equal Protection Clause and the Fair Housing Act (which bans discrimination based on "national origin," a term understood by courts to encompass ethnic groups as well).

On the other hand, the good news for Ingram is that the clause in his covenant banning sale or lease of the property to any person named "Sherman" (a result of his hatred of Civil War General William Tecumseh Sherman) is probably legal.

Whatever the legal status of the covenant, Ingram is definitely the kind of white southerner that General Sherman had in mind when he said that "My aim . . . was to whip the rebels, to humble their pride, to follow them to their inmost recesses, and make them fear and dread us." In Ingram's case, the plan to instill "fear and dread" of northerners definitely worked!

Sherman also didn't exactly have warm feelings towards the state of South Carolina (which was the first to secede and historically the strongest advocate of both slavery and secession). Before occupying the state in 1865, he noted that "[t]he whole army is burning with an insatiable desire to wreak violence upon South Carolina. I almost tremble for her fate."

UPDATE: Yes, it is true, as several commenters note, that the text of the covenant is based on past residency and location of birth rather than on ethnicity. However, as I tried to point out in the original post, a provision that does not discriminate on the basis of ethnicity in its text, can still be illegal if the author's purpose was to use it to exclude members of a particular ethnic group.

For example, a clause that forbid sale of the property to basketball fans would not be illegal in and of itself. But if it could be shown that the clause was inserted because the owner thought that blacks were more likely to be basketball fans than whites, then courts would probably strike it down under the Fair Housing Act. In this case, Ingram seems to have included the language on residency and birth because he hoped it would have the effect of excluding Yankees (defined as an ethnic and cultural group).

Related Posts (on one page):

  1. Are Restrictive Covenants Banning Sale of Property to the "Yankee Race" Legal?:
  2. No-Yankees Covenant:
Tennessean (mail):
Wouldn't it depend on whether Yankee refers to a culture or to a region? If the rule bans anyone who has lived in the former union states for one year (my fault - I haven't read the rule), then it wouldn't seem to be a ban against an ethnic group. If ethnic is "of or relating to large groups of people classed according to common racial, national, tribal, religious, linguistic, or cultural origin or background," then the people are classed according to residential history, not race, nation, tribe, religion, language, or cultural origin.

Indeed, his rule would permit a person born to Yankee parents in georgia (and who is completely Yankee in the cultural sense) to buy in, but would bar the purchase by a CSA loyalist who attended law school at NYU to learn how to resurrect the South.
7.6.2006 8:02pm
jgshapiro (mail):
What about restrictive covenants prohibiting the sale of property to Yankees fans? I wouldn't exactly call them a "race," but then again, they are also worse than fire ants in many ways. In the alternative, can I include a covenant prohibting sale or lease to anyone named "George" or "Derek"?
7.6.2006 8:03pm
Kingsley Browne (mail):
In this context, I don't think that "Yankee" is even an ethnic group. A "Yankee" who moves down south and then has children will have children who are not "Yankees." This seems more like a political classification, like citizenship, than a racial or ethnic one. State discrimination against those born outside the state would be unconstitutional irrespective of whether this is an "ethnic" group, I assume, but I doubt that the Fair Housing Act would apply.
7.6.2006 8:06pm
Jim Morse (mail):
Wouldn't it be better to challenge enforcement of the covenant under the Commerce Clause and the P&I Clause (right to travel)?
7.7.2006 1:42am
HLSbertarian (mail):
The FHA applies to race, color, national origin, religion, sex, familial status, and handicap. Even if Yankees are a distinct "ethnic and cultural group," they seem to cut across all of the enumerated categories. I haven't looked at the demographics, but I'm guessing that any attempt to use Ingram's rules to separate out people according to the FHA's enumerated categories wouldn't be very successful.
7.7.2006 12:40pm
claritas:
I agree with Jim Morse. Although it may not appear that there is state action here, Shelley v. Kramer read broadly enough could supply that. And the state enforcing a restrictive covenant based solely on former residence in a state violates the right to travel under the 14th amendment's privileges and immunities clause.

I think the clause banning transfer to someone who only resided in the North for one year is particularly objectionable on P&I grounds: it is far too broad even for achieving the purpose of the clause: in today's mobile society it includes thousands of people who are not "Yankees," defined culturally or by affiliation. I, for instance, am a native Southerner, grew up here , but went to school for a few years in the North, and would be barred by the clause from taking the property.
7.7.2006 12:59pm
Anonymous1 (mail):
I have a hard time buying that "Yankees" are an ethnic group. It is clearly geographical. I am a white male from Virginia. However, I have lived in NY for longer than one year. I could not buy that house. It has nothing to do with my ethnicity.
However I understand that if the purpose behind the covenant (not just the facial reading of the text) is improper, then the whole covenant is stricken. I still don't think that it is proper policy to begin to say that a geographical region is an ethnicity. Does that mean that if you are from an underrepresented geographical region, then you should get affirmative action?
I am not one to applaud this man's covenant. Unfortunately, it is a major stretch to classify "Yankee" as an ethnicity. Furthermore, if it is an ethnicity then it is the only ethnicity I know that includes every race, gender, and proclivity. The only defining characteristic is geography and that only lends credence to the argument that it is a geographical and not ethnic grouping.
Lastly, if you have a geographical classification that tends to discriminate against a particular ethnicity then you have an argument. I imagine a more defined area, say South Central Los Angeles, might be discriminatory in nature. However, 'anywhere above the mason dixon line' cannot be construed to have an adverse affect on any particular protected class.
7.7.2006 1:55pm
abb3w:
As a God Damn Yankee, I've been told by several native Southerners there is a common convention on these classifications. A Yankee is anyone from north of the Mason-Dixon line, either by birth or residence (although I believe five years is a more common standard); a Damn Yankee is a Yankee who comes south of the Mason-Dixon line; a God Damn Yankee is a Damn Yankee who takes up permanent residence in the south; and a God Damn Yankee Bastard is a male God Damn Yankee who marries a southern belle... who is then Yankee by marriage.

Even if raised in the South, the children of a God Damn Yankee woman are still by blood considered Yankees; for a male God Damn Yankee, both children and grandchildren are similarly considered Yankees.
7.7.2006 2:24pm
HLSbertarian (mail):
claritas said: "I agree with Jim Morse. Although it may not appear that there is state action here, Shelley v. Kramer read broadly enough could supply that. And the state enforcing a restrictive covenant based solely on former residence in a state violates the right to travel under the 14th amendment's privileges and immunities clause."

You're right, but (as is well-documented in Brophy and Ghosh's article) Shelley v. Kramer has been read every which way but "broadly." It's a pretty terrible decision that's been mostly confined to its own facts and is still on the books only because it would seem racist to overturn it.

For example: A person has the right, if he so chooses, to exclude people from his private home on the basis of race. To vindicate this right, he may need to call upon the police and courts to remove tresspassers. Shelley's reasoning would make any enforcement of this private right by police or courts into state action, instantly eliminating the private right as soon as it needs enforcing.

I've yet to see an intellecually honest way to retain the reasoning in Shelley but avoid such ridiculous results, and for this reason it will almost certainly never be "read broadly."
7.7.2006 2:41pm
Abe Delnore:
Unfortunately, it is a major stretch to classify "Yankee" as an ethnicity. Furthermore, if it is an ethnicity then it is the only ethnicity I know that includes every race, gender, and proclivity. The only defining characteristic is geography and that only lends credence to the argument that it is a geographical and not ethnic grouping.

I don't know about "proclivities," but you will probably not find an ethnicity that does not include both males and females.

I think most people would consider "Cuban-American" an ethnicity even though it includes individuals most Americans would sort into black, Hispanic, and white racial categories. Indeed, the entire basis of the Cuban-American is shared geographical origin and history. Further reflection will show that most ethnicities work this way.

Discussion above has also omitted the principle means of spotting Yankees, to-wit, their accents. Linguistic difference sure sounds like an ethnic marker to me.

It's amusing to consider that Southern nationalists consider Southerners to constitute a nation—that is, an ethnicity. If this claim is accepted, then surely the implication is that Yankees, too, constitute a nation.

—Abe Delnore
7.7.2006 4:27pm
Xrayspec:
I like the right to travel idea. See Zobel v. Williams, 457 US 55, striking down an Alaska govt payment to residents that excluded people who moved there from other places. Still have to get around the state action issue.
7.8.2006 7:04pm