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Shawn Vestal: A war over words sits at the heart of a court ruling over racist covenants

UPDATED: Fri., Feb. 26, 2021

Alex May, pictured in this file photo from 2019, has asked the courts to remove a racist covenant that was filed when his home was first developed and sold in the 1950s.
Alex May, pictured in this file photo from 2019, has asked the courts to remove a racist covenant that was filed when his home was first developed and sold in the 1950s.

What does it mean to “strike” a document from the public record? To “remove all remnants” of it?

You might think these are simple questions with straightforward answers: Take the record out. Get rid of it. Remove it.

For a 2-1 majority of the Washington Court of Appeals, however, that is not what those words mean at all. Striking a record means to leave it right where it is, perhaps with an explanatory note added that the record is no longer valid.

The ruling last week was the latest development in the issue of Spokane’s decades-old racist housing covenants, and the efforts of homeowner Alex May to remove the covenant in the property records of his home.

County auditor Vicky Dalton has refused, arguing every single record filed in the property’s history must remain in the file, even if it’s no longer legally binding. A Superior Court judge and, now, an appeals court majority, has agreed.

The majority argues – bizarrely, I think – that a 1987 law granting homeowners the legal right to strike racist covenants and to “remove all remnants of discrimination from their deeds” actually means that the remnants must be left in the public record.

If not, the judges argue, we run the risk of forgetting our history.

“A policy of whitewashing public records and erasing historical evidence of racism would be dangerous,” the majority wrote in the opinion, delivered last week. “It would risk forgetting and ultimately denying the ugly truths of racism and racist housing practices.”

This makes about as much sense as arguing that Civil War statues teach us history. If we truly want racist covenants to be remembered, we should put up signs around Comstock and other neighborhoods in the city that were developed with racist covenants to remind everyone they used to be whites-only.

The history of racist housing policies and practices in America is well-studied and researched; many cities have projects that detail exactly where the racist covenants existed. Local historian Logan Camporeale has documented this history here.

The need to preserve the covenants – while putting them before home buyers at signing, some of whom will be people of color – needs to be balanced against the unique and awful history they represent.

That’s the argument of dissenting Judge George Fearing, anyway, and it’s a persuasive one. May says he doesn’t know whether he will pursue the case to the Supreme Court, but Fearing’s excellent, intelligent, thorough dissent provides a reason to give it a try.

Fearing includes a review of the unforgotten history of housing discrimination in America and in Spokane. May’s home, like others in the Comstock neighborhood, was originally sold in 1953 with this provision: “No race or nationality other than the white race shall use or occupy any building on any lot, except that this covenant shall not prevent occupancy by domestic servants of a different race or nationality employed by an owner or tenant.”

Fearing noted that racially restricted covenants had been prohibited by a Supreme Court order at the time of the Comstock developments, and he minced no words in criticizing the developer – William Cowles Jr., the former owner and publisher of The Spokesman-Review, who was acting in the matter as an executor of his father’s estate.

“One might think that the publisher of a major newspaper would know of a United States Supreme Court ruling prohibiting enforcement of racial restrictive covenants, and one might hope that a pillar of eastern Washington’s premier city would obey the ruling,” he wrote. “Nevertheless, the prominent Spokanite imposed the illegal restraint on the ownership and use of property five years after Shelley v. Kraemer.”

That ruling outlawed the enforcement of discriminatory covenants.

(Betsy Cowles, chairman of the Cowles Co., issued a statement in 2016 when this issue was first publicly reported: “It isn’t clear to me exactly what role William Cowles Jr. had in the overall development at that time. What is very clear is that such racial segregation is offensive and in no way represents our company or family values.”)

Fearing similarly criticized the auditor’s office, arguing that the filing of the records also violated Shelley v. Kramer.

Washington law invalidated racist covenants in 1969, and a 1987 law gave homeowners the right to ask a judge to have such documents “stricken from the public record.” If a court found that the records had any void provisions, it could strike them, “eliminating the void provisions” from the title.

“The continued existence of these covenants and restrictions is repugnant to many property owners and diminishes the free enjoyment of their property,” the Legislature declared in passing the law. “It is the intent of Section 2 of this act to allow property owners to remove all remnants of discrimination from their deeds.”

It is hard to imagine, in the terms of plain language or legal technicality, how this constitutes an argument for leaving the covenants in place, and simply adding an explanatory note that it is no longer valid. The majority argues that if a court declares a covenant void, it is stricken – that it has been removed as a matter of law, and no change to the actual physical document is necessary.

“I follow the plain meaning of the words ‘strike’ and ‘elimination,’ ” Fearing wrote. “Both words are stout, energetic verbs that convey the thought of deletion, removal, and expulsion. The words command an excision of all offending verbiage from the public record. None of the words suggest blanketing the offending covenant with another document that repeats, but declares invalid, the racial restriction.”

He added, “Adorning a skunk in a freshly laundered and crisply ironed T-shirt that reads ‘I AM NO LONGER A SKUNK’ does not strike or eliminate the stench from the skunk.”

Fearing concludes with a rebuke of the majority’s position that is worth quoting at length.

“The loitering of racial restrictive covenants on file with the county auditor does not function as a beneficial historic record of ethnic intolerance in the United States. Eradicating auditor records of offensive covenants will not whitewash the ugly truth of American apartheid. Literature, including this legal dissent, will teach generations of our nation’s children about property ownership restrictions …

“County auditor records do not serve as books in a library or as historic documents in a museum. County auditor pages function as a town square for real property transactions. The time has come to rip, from the pages of official records, white inscriptions of supremacy. The time has come to tear down monuments to slavery and racial segregation on display in this public square.”

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