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Article Excerpt
This Article explores a startling and previously unnoticed line of cases in which state courts in the Jim Crow era ruled against white plaintiffs trying to use common law nuisance doctrine to achieve residential segregation. These "race-nuisance" cases complicate the view of most legal scholarship that state courts during the Jim Crow era openly eschewed the rule of law in service of white supremacy. Instead, the cases provide rich social historical detail showing southern judges wrestling with their competing allegiances to both precedent and the pursuit of racial exclusivity. Surprisingly, the allegiance to precedent generally prevailed. The cases confound prevailing legal theories, particularly new formalism and critical race theory's interest convergence. While new formalists may at first see these cases as supportive of their claims, the Article illustrates the limitations of formalism's reach by also exploring the related line of racially restrictive covenant cases. Similarly, while interest convergence scholars might attempt to read many of the cases as supporting white property owners' interests, this Article demonstrates that the race-nuisance cases are better understood as demonstrating that white interests are multi-faceted. Interest convergence is therefore a useful way to explain unexpected outcomes but not to predict such outcomes. Another line of inquiry raised by the cases is whether courts racialized nuisance doctrine by marking as nuisance conduct associated with blacks and rewarding blacks who adhered to white norms. The first claim is impossible to verify with any certainty--and the second embraces gross oversimplifications of racial group behaviors. In sum, the Article casts substantial doubt on the background assumptions about the way law worked during the Jim Crow era, and thus provides a more textured understanding of that period.
TABLE OF CONTENTS INTRODUCTION I. RACE AND NUISANCE IN THE COURTS A. Overview of Nuisance Doctrine B. The Mere Presence of a Black Family Is Not a Nuisance C. Mixed Results in Conduct Cases 1. Churches 2. Funeral Homes and Cemeteries 3. Hospitals, Sanatoriums, and Orphanages 4. Places of Amusement 5. Crowded Housing II. THEORIES AND COUNTER-THEORIES A. State Courts Furthering White Supremacy B. Reflexive Formalism in Operation ? C. A Race Neutrality Ideal at Work? D. Formalism and Equal Treatment Reconsidered-- Racial Zoning and Restrictive Covenants 1. Racial Zoning 2. Racially Restrictive Covenants E. Interest Convergence: Race Nuisance and Segregation 1. Protecting the Rights of White Property Owners F. Racialized Nuisance Doctrine--Was Nuisance a "White Thing" ? III. RACE NUISANCE AND RACIAL LIBERATION-- INSIGHTS INTO THE PRESENT CONCLUSION
INTRODUCTION
In 1883, a white family brought a lawsuit in state court claiming that a black family moving in next door would be a nuisance. The case, Falloon v. Schilling, was appealed to the Kansas Supreme Court, which issued a unanimous decision. (1) This decision was immediately reflected in nuisance treatises, which were then instructive for twenty-eight more such cases brought during the "Jim Crow" (2) era. Most of these "race-nuisance" cases were brought in the South, including Louisiana, Mississippi, Texas, and Tennessee, but a few were brought in the North as well. When I recount this history to my students, other law professors, and even nonlawyers, the vast majority assume that I am describing yet another instance of racist state courts warping doctrine in favor of white supremacy. But the outcomes of these cases surprise my listeners: in most of them, the white plaintiffs lost. (3)
Many current scholars presume that Jim Crow courts eschewed the rule of law, openly treating black people as unworthy of legal protection. (4) Articles addressing Jim Crow describe countless incidents of state courts' differential treatment of blacks, and many court opinions contain blatantly racist language. Needless to say, the Jim Crow era was replete with such behavior. However, the race-nuisance cases complicate this monochromatic picture. These cases show southern judges wrestling with their competing allegiances to precedent and the pursuit of racial exclusivity. (5)
The judges in race-nuisance cases did not reflexively and consistently rule against black people. This Article explores multiple legal theories in search of an explanation for this anomaly: legal formalism, (6) property theory, (7) and critical race theory. (8) Each sheds light on aspects of judicial decision-making in these cases, but ultimately none satisfactorily explains the entire picture.
My goal in this Article is, to use Randall Kennedy's words, "to confront the full, complicated vastness" (9) of this particular history. The value of these cases lies in their details and specificity. They allow us to critique and complicate the one-size-fits-all theories so common in legal scholarship. (10)
A "new formalist" might use these cases as evidence of both the normative value and the prevalence of formalist decision-making, claiming that the cases are purely a result of southern state court judges yielding to precedent. I argue, however, that the race-nuisance cases cannot be fully explained by formalist decision-making and, more significantly, that related cases concerning racial zoning and the enforceability of racially restrictive covenants show the limits to formalism in racially charged cases.
State courts were split on the constitutionality of racial zoning, and all southern courts and most northern courts with significant black populations enforced restrictive covenants. (11) In other words, during the same period in which courts were adhering to nuisance precedent by ruling against efforts to exclude black families or institutions from white neighborhoods, courts were also twisting precedent to uphold the enforceability of racially restrictive covenants. The challenge for formalism is to explain the difference between these two sets of cases.
Some scholars have suggested that our national commitment to property rights dictated the outcome of property disputes even when race was involved. The problem with this argument is that in most property disputes, both parties will have a property interest at stake. In the nuisance context, the plaintiff is seeking to protect her interest in her enjoyment of her land, while the defendant is defending his use of his land. Both are "sticks" in the property "bundle." Similarly, in racially restrictive covenant cases, the plaintiff is a property owner with an interest in enforcing a covenant that presumably bolsters her property value, while the defendant is a current or prospective property owner seeking the right to alienate or purchase property.
Property theory is more enlightening. Recent scholarship reasserting a natural-law theory of property suggests that in the pre-twentieth century legal regime, a physical-invasion theory of property created a strong presumption in favor of free use of land unless it resulted in a physical invasion of another's property. (12) There were, however, many court-created exceptions to this principle, including ones for funeral homes, "bawdy" houses, and certain other uses that did not cause a physical invasion of another's land, but upset certain norms of order and morality. It was certainly conceivable that race might have become one of those exceptions.
Critical race theory, on the other hand, would explain these decisions by looking for the white interest that they were maximizing despite appearing to favor people of color. One variant of this claim is Derrick Bell's well-known theory of interest convergence. (13) This story plays out in the race-nuisance cases because a number of them may have actually buttressed segregation by facilitating the existence of separate institutions for blacks. Very few of the race-nuisance cases challenged the architecture of segregation. Rather, most of the cases were brought by white landowners seeking either to exclude segregated black institutions from their neighborhoods, (14) or to prevent a white family from housing black servants on the family's property. (15) Only a few cases were brought by whites trying to exclude individual blacks of equal socioeconomic status from white neighborhoods. (16) Segregated institutions had to be located somewhere for a segregated society to exist, and the small black enclaves may not have been big enough for cemeteries, hospitals, parks, and sanatoriums. Therefore, the race-nuisance cases in which white plaintiffs were unsuccessful may simply have been instances in which the interests of a small number of white landowners were sacrificed for the preservation of racial segregation.
However, this theory does not explain all the cases. Several of the cases simply cannot be ascribed to the fulfillment of white supremacy--a black funeral director permitted to move into a wealthy white Memphis neighborhood, a black man dispensing medicine without a license to whites and blacks alike. (17) Ascribing these outcomes to white interest ultimately undercuts interest convergence as a theory because it appears to support either conclusion. Moreover, this understanding of the theory eliminates any agency on the part of the black litigants.
A close read of these cases also complicates application of the interest convergence theory by showing the impossibility of identifying a universal or monolithic "white" interest--in other words, a particular outcome may help one group of whites and harm another. Solving this tension by concluding that the courts consistently handed upper-class whites victory over lower-class whites may explain some cases, for example those in which white people challenged other white people's attempts to house black servants on their property. But it does not explain them all. (18) Is the dominant class the developer seeking the right to sell to whoever would purchase, or the developer seeking to maintain a particular area's racial exclusivity?
While the race-nuisance cases are filled with racist references, they nonetheless show that race neutrality was an ideal during this era. The operation of this ideal may help to explain the different outcomes in the nuisance, zoning, and restrictive covenant cases.
For race to affect the outcome in the nuisance cases, courts would have had to find expressly that race was salient to the outcome. The white plaintiffs were asking courts to make an affirmative finding that black people as a class were a nuisance--akin to pollution.
If courts considered the legal ideals of equal treatment to have any meaning at all, they precluded such a finding. By contrast, the racial zoning cases involved courts either invalidating or deferring to legislative decisions about the separation of the races, and the restrictive covenant cases allowed the judges to see themselves as simply enforcing private agreements. (19) A court decision labeling blacks a nuisance would have been a much more significant deviation from the legal ideal of equal treatment than a court decision upholding a private covenant excluding blacks. (20)
My argument here depends on a certain understanding of how the legal ideal of equal treatment operates with respect to race. In other words, the legal ideal of equal treatment predicts the conclusion that the courts should not legally credit group-based assumptions in the nuisance context. The courts appeared to reach this conclusion as well. The white plaintiffs that argued that blacks constitute a per se nuisance were contending that all blacks--blacks as a class of people--created a nuisance by their very presence. The plaintiffs made this view clear by using the classic nuisance language: people who are black necessarily will create odors, noise, and a loss of property value. In rejecting these cases, then, the courts were rejecting broadscale assumptions about blacks as a group--and embedding the concept of equality in law with some substance. A contrary decision might conceivably still have begun with a ritual assertion that blacks are entitled to equality under law, but then gone on to accept the claims that all blacks are malodorous, loud, and the cause of reduced property value.
The cases are notable for this adherence to formal equality--they rejected a categorical determination that blacks constituted a nuisance based upon their status as blacks. However, there are two other possible ways that some might argue these cases may have nonetheless racialized nuisance law. One--which is more overt--is that the courts adjudged certain conduct as a nuisance because it was associated with black people. This practice may have been conscious or not. This would play out as follows--black people engage in exuberant and noisy forms of religious worship; we the court condemn conduct typical of black people; therefore, exuberant and noisy worship is a nuisance.
A second possibility is that the court utilized shared norms when determining what sorts of conduct constituted a nuisance. These norms were developed by white judges and communities; in some arenas, blacks often did not adhere to these norms, and, therefore, their conduct was deemed a nuisance. In other words, the courts may have been "adjudging whether or not black [people were] behaving in ways that might indicate their adherence to the white norms of the time--i.e. 'acting white.'" (21) Even in Falloon, the opinion noted that the home at issue looked neat and that the family in fact was the family of a preacher and "behaved well" and were not "worthless negroes." (22)
The determination that the family "behaved well" likely was based upon norms of behavior arising from the dominant white community. While this preacher and his family behaved well and were allowed to remain, another court rejected the joyous and loud worship of a black congregation because nearby white residents found the "din" unbearable. (23) These determinations are stubbornly contextual--while quiet worship and keeping to oneself are ideals in some communities, these same behaviors might suggest coldness and lack of sufficient fervor in others. One court, overturning a conviction of a black preacher for breaching the peace with his shouts of "Amen," "Praise God," and "Glory Hallelujah" in a voice loud enough to be heard six blocks away, stated that "there was once a time in this country when a minister, whose voice would not have carded for a greater distance than two city blocks, would certainly have been accepted with greatly restrained enthusiasm...." (24)
This Article will explore the implications of the competing ways in which race may have played into these decisions. If courts were concluding that certain conduct was a nuisance because it was typical of conduct engaged in by black people, then nuisance law was being racialized (and is subject to critique) even if the courts were claiming an adherence to equality. In other words, the claimed adherence to equality seems obviously disingenuous if the courts are simply using conduct they associate with black people as a guise for finding black people to be nuisances. The second scenario is more complicated. Was it disingenuous (or was equality being shortchanged) if courts applied dominant community standards to determine what conduct constituted a nuisance in instances in which blacks often deviated from this standard? If white congregations in a particular community were typically quiet while black congregations were typically noisy, was it a deviation from an ideal of equal treatment for courts to declare that the black churches located near white residential neighborhoods were nuisances? (25)
From these rich historical sources, we can also derive insight into the present. From these opinions, we can conclude that courts in the United States do not lightly disassociate themselves from common law precedent or operative legal norms and ideals. This offers hope for the role of law in securing racial liberation, and demonstrates that legal doctrine and ideals are worth fighting over.
The race-nuisance and related cases also shed light on the role of strategic alliances in legal battles. While there have always been some in the dominant group who hold a firm ideological commitment to equality and would partner with minority groups, these cases show the beneficial exploitation of the divergent interests of the dominant class. Subsets of whites will at different points have more in common with people of color than with other groups of whites. (26) These instances can and should be exploited through the formation of strategic alliances. These strategic alliances are age-old--the litigants in Buchanan v. Warley used them, (27) as did those favoring affirmative action in the recent Grutter litigation. (28)
However, the fact that cases such as these were decided during the Jim Crow era should also caution us about the limits of the law. While some judges in the Jim Crow era subscribed to--or felt obligated to invoke--ideals of equal treatment, it is also obvious that this norm did not translate into social practice. Indeed, the litigants in the cases themselves may not even have benefited from the legal ideals. There are limits to relying solely upon legal opinions to deduce any conclusions about life as it was lived. The white plaintiffs who sought to use nuisance law to exclude blacks from their neighborhoods may have turned to other means to achieve this end once they lost in court. Carol Rose has argued as follows:
[O]ur everyday lives are filled with instances that call on us to respect property, even when no public policemen or private retaliation can restrain us: we don't steal the unlocked and unguarded bicycle, we don't pocket the bubble gum when no one is looking, we live up to our side of a deal, even with a stranger who would have no easy way to enforce a bargain. A property regime, in short, depends on a web of respect, honor, and acceptance that somehow modifies the immediate appetite for "more." (29)
Regardless of the outcomes of certain cases, this crucial web of respect, honor, and acceptance of the rights of blacks to own property was lacking. Indeed, land ownership often incited violent reprisal by whites. (30) A Savannah black newspaper reported, "It is getting to be a dangerous thing to acquire property, to get an education, to own an automobile, to dress well, and to build a respectable home." (31) Another black newspaper reported, "[n]ot infrequently, successful blacks found themselves accused of improper relations with a white woman and were forced to sell their property at a loss and leave town." (32) During a 1901 public debate (argued by two young black women in Charlotte and entitled "Is the South the Best Home for the Negro?"), Laura Arnold noted that too many blacks had rested their hopes on the security of property, only to be devastated without warning or purpose. (33)
The cases do not present a rosy picture of life or law in the Jim Crow era. They are replete with the racism of the day. Nor do they undercut the reality of lynchings, violence, and disenfranchisement that took place during this period. Instead, they illustrate that these social practices occurred despite a legal system that had somewhat more in common with our own than we like to remember. As important, the cases introduce us to people who challenged the white supremacist status quo during its ascendance--and prevailed.
This Article begins with a detailed description of the race-nuisance cases. I divide the cases into the "mere presence" (34) cases, in which white landowners argued that the presence of certain racial minorities interfered with their use and enjoyment of land, and the "conduct" cases, in which whites contended that the particular uses of land by these same groups resulted in common law nuisances. Part II examines the related lines of cases involving racial zoning and racially restrictive covenants, and analyzes the race-nuisance cases under competing jurisprudential theories of formalism, property theory, and critical race theory. This Part concludes with a discussion of whether the race-nuisance cases, despite ostensibly adhering to a norm of equality, in fact racialized nuisance law. Part III offers a series of insights into the present from the race-nuisance and related cases.
I. RACE AND NUISANCE IN THE COURTS
Conventional wisdom would predict that during the worst of the Jim Crow era, white plaintiffs would have been able to use nuisance doctrine successfully to challenge the presence of black people in white neighborhoods. Nuisance doctrine at the time was an elastic concept that at least formally precluded any use of land that would have caused annoyance to adjacent landowners. (35) The presence of black people would undoubtedly have caused such annoyance to the many racist and segregationist whites. The first two decades of the twentieth century saw waves of pseudoscience supporting notions of black inferiority and the need to segregate the races. (36) According to historian George Fredrickson, whites began to conclude that there was a need to "segregate or quarantine a race liable to be a source of contamination and social danger to the white community, as it sank even deeper into the slough of disease, vice and criminality." (37) The white plaintiffs in the race-nuisance cases sought to vindicate these views legally.
This Part explores the race-nuisance cases in detail. I have identified twenty-eight reported appellate decisions in which white homeowners or municipal governments sought to use nuisance doctrine to preclude the use of land by blacks or other racial minorities. The first section describes those cases in which white homeowners claimed that the "mere presence" of racial minorities constituted a nuisance. These cases were uniformly unsuccessful. The second section describes cases in which white homeowners or municipal governments challenged certain conduct engaged in by blacks or other racial minorities. The results are significantly more mixed in these cases. Because few readers are likely to be familiar with the cases, this Part is intended to be descriptive and not analytical. (38)
A. Overview of Nuisance Doctrine
Nuisance law was in the midst of tremendous change from the late nineteenth to the mid-twentieth century. The doctrine originally protected each landowner's right to the quiet enjoyment of his land. (39) Courts thus enjoined any use--even if otherwise legal--that infringed upon the essential elements of a landowner's enjoyment. (40) According to Blackstone's Commentaries, "it is incumbent on [a neighboring owner] to find some other place," if the neighbor's use of his land causes injury to the land of another. (41)
As industrialization flourished, many courts became more restrictive with the concept of nuisance. (42) A primary means to allow for industrialization without formally altering the doctrine was to refuse to grant injunctive relief for prospective nuisances. (43) Courts were in considerable disagreement over the degree of interference that should be legally tolerable and the relevance of the social utility of defendant's use. (44) Some courts focused upon the plaintiff's right to be free from unreasonable interference. Others held that plaintiffs have an action only if defendant's use of his land is itself unlawful. (45) Ultimately, some courts began expressly to adopt a formulation of nuisance doctrine that balanced the interests of plaintiffs and defendants, focusing on such factors as the degree of harm, the locality, and the social value of defendant's actions. (46)
However, with regard to purely residential uses, courts have arguably become less restrictive over the decades. Some courts never deviated from the more formalistic definition of nuisance as any action that resulted in a substantial harm to another's use of land. (47) Others, perhaps responding to the recognition of the importance of aesthetics in land-use planning generally, have allowed aesthetic harms to form the basis for a nuisance action. (48)
Nuisance doctrine was largely in flux during the era in which the race-nuisance cases were brought. Indeed, John Nagle, the only recent scholar to grapple with the question of what sorts of harm are or should be cognizable as nuisances, (49) acknowledges the difficulty of identifying nuisance docWine's inherent limitations.
B. The Mere Presence of a Black Family Is Not a Nuisance
The first decision rejecting race as a category of nuisance, Falloon v. Schilling, began as a dispute between two white neighbors. (50) Defendant Schilling owned an eighty-acre tract in the rapidly growing town of Hiawatha. He sold less than an acre of the land, which was ultimately purchased by plaintiff Falloon, a white man who lived on the property with his wife and young sons. The Falloon family home was within thirteen feet of the next lot. Schilling wanted to buy back the land, but his offer was rejected. In his complaint, Falloon claims that Schilling then "conceived the oppressive and unlawful idea of rendering [his] home obnoxious and unendurable to himself and family, by erecting cheap tenement houses on either side of [his] land, and filling them with worthless negroes that they might annoy [Falloon's] wife, who is a person in delicate health," and punish them for refusing Schilling's offer. (51) Consistent with his plan,...
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