Correspondence from Balske to Guinier
Correspondence
July 21, 1982

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Press Releases, Loose Pages. Case Involving Suit for Damages for Violation of Racial Restrictive Covenant on Real Property, 1953. 8119b2b9-bb92-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/c1a430a7-16ac-4ac2-869c-f5061bec995d/case-involving-suit-for-damages-for-violation-of-racial-restrictive-covenant-on-real-property. Accessed August 19, 2025.
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> < * r } PRESS RELEASE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND 107 WEST 43 STREET * NEW YORK 36, N. Y. © JUdson 6-8397 ARTHUR B. SPINGARN THURGOOD MARSHALL President Director and Counsel WALTER WHITE ROBERT L. CARTER Secretary Assistant Counsel ALLAN KNIGHT CHALMERS ARNOLD DE MILLE Treosurer Pross Relations April 28, 1953 ~ FOR RELEASE: April 28, 1953 SUBJECT: Case Involving Suit for Damages for Violation of Racial Restrictive Covenant on Real Property This case up for argument before the United States Supreme Court on April 28, 1953 ISSUR INVOIVED: Whether the equal protection clause of the Fourteenth Amendment to the Constitution of the United States forbids the bringing of an action in a state court to recover damages for an alleged breach of a covenant prohibiting the use or occupancy of real property by Negroes or members of other minority groups, THE CASE: The instant case, BARROWS v. JACKSON, is a suit brought against Mrs, Leola Jackson, a white resident of Los Angeles, California, who in 1950 sold her house to a Negro family in violation of a racial restrictive covenant which she had signed with other property owners not to permit the property to be occupied by non-Caucasians, The agreement which Mrs, Jackson signed also required her to include this restriction in any deed which she gave to her property, FACTS OF THE CASEt On October 21, 1944, three home owners in Los Angeles, California, Olive and Edgar Barrows and M, M. O'Gara, entered into an agreement with another home owner, Mrs, Leola Jackgon, whepeby the property owners agreed that neither party would permit his or her property at any time to "be used or occupied by any person or persons not wholly of the white or Caucasian race," They also agreed that this Legal Defense and Educational Fund—--April 28, 1953 Page 2 racial restriction would be included in “all papers and transfers," The agreement further provided that if any of the lots should be used or occupied by persons not wholly of the white or Caucasian race, the signor of the agreement who permitted his or her property to be so oc-~ cupied in violation of the agreement, and his or her suc- cessors, would immediately become -liable to “the other signors and their successors whose lots were not so oc- cupied for all damages which they may have suffered by reason of the breach." This agreement was recorded on the 8th of May, 1945, On February 2, 1950, Leola Jackson, in violation of the agreement, sold her property to Pearnell and Florine Smally, non-Caucasians, and in September, 1950, the Smallys began to occupy the property. In 1951, the Barrows, Richard Pikaar, a successor in title to a signor, and O'Gara filed suit in the Superior Court of Los Angeles County to recover $3,000 damages each which they claimed they had suffered as a result of the sale of the property by Mrs, Jackson to the Smallys,. Mrs. Jackson's attaneys argued that the United States Supreme Court had held in the 1948 restrictive covenant cases that a state court could not issue an injunc- tion against the breach of such racial restrictive covenants as such action on the part of a state court violated the Fourteenth Amendment, Therefore, the Superior Court of California could not award damages to the Barrows, Pikaar and O'Gara in view of such decision as such an award of damages is also prohibited by the Fourteenth Amendment to the Federal Constitution, On March 26, 1951, Judge Daniel N. Stevens oe ® @ Legal Defense and Educational Fund-~-April 28, 1953 Page 3 2 qe rendered a decision agreeing with Mrs, Jackson's attorneys and dismissed the suit. The Barrows, Pikaar and 0'Gara then appealed to the District Court of Appeals, Second Appellate District of California, The three judges sitting in the District Court of Appeals, in a lengthy decision by Associate Judge Paul Vallee, concurred in by Presiding Judge Clement Shinn and Associate Judge Parker Wood, reviewed all of the cases decided by the United States Supreme Court, and other courts, involving state enforcement of racial restrictive covenants and suits for damages for alleged breach of such covenants, Theyconcluded that the decisions of the United States Supreme Court in 1948 prohibiting the injunction for breach of restrictive covenants, precluded the bringing of an action for damages for breach of such covenants, Following this decision, the Barrows, Pikaar and O'Gara appealed to the Supreme Court of the State of California which refused to review the case, The decision of the District Court of Appeals was therefore affirmed, The Barrows, Pikaar and O'Gara then petitioned the United States Supreme Court to review their case, and on March 9, 1953, the highest court agreed to hear it. ARGUMENTS: I, Petitioners--They argue that; A, They are entitled to recover damages from Mrs, Jackson because she violated her agreement by not including the racial restrictive agreement in the deed which she gave to the Smallys and by permitting the property to be occupied by the Smallys, who are"non-Caucasians," B, The United States Supreme Court decision in Shelley v, Kraemer, and other restrictive covenant cases Legal Defense and Educational Fund-~-~April 28, 1953 Page 4 in 1948, does not prevent them from bringing action for damages for breach of racial restrictive covenants, C, If the United States Supreme Court should. agree with the California courts, they would be denied rights secured to them by the Fourteenth Amendment, D, The public policy of the State of California does not prevent the bringing of an action for damages for breach of restrictive covenants, II, Respondents--NAACP Legal Defense attorneys for Leola Jackson argue that: A. The United States Supreme Court decisions in 1948 in the restrictive covenant cases, which withdrew from the state courts the power to issue an injunc- tion against the sale of real property to a Negro in violation of restrictive covenants, is the basis for the California courts’ ruling that they are without power to order that damages be paid to the Barrows, Pikaar and O'Gara by Mrs, Jackson for breaching her agreement with them, B,. If damages may be recovered for breach of racial restrictive covenants, the United States Supreme Court's decisions in 1948 will be nullified, Negroes, and other minority groups, would be as effectively denied their civil right to purchase a home in a more desirable residential area as they were before the 1948 decisions, Residential racial segregation devices would again receive the sanctions of the state courts, C. Ina suit for damages, the state court is urged to penalize the seller, who sells in violation of @ racial restrictive covenant by, in effect, nullifying the sale through taking from the proceeds of the sale a portion or all of the proceeds to be paid to the suing parties to Legal Defense and Educational Fund -- April 28, 1953 Page 5 the covenant in the form of damages, The seller would, therefore, refuse to sell his property to a Negro because of the fear of having to pay damages, Thus, the seller would be effectively denied the right to dispose of his property to whomever he pleases, This would be in violation of the due process clause of the Fourteenth Amendment, OTHER RESTRICTIVE COVENANT CASES: In 1948, the United States Supreme Court reviewed four cases, Shelley v. Kraemer, Sipes v. McGhee, Hurd v. Hodge and Urciolo v, Hodge, involving suits for injunction to enjoin white sellers who, in violation of agreements, had sought to sell their properties to Negroes, The high court held that neither the state courts nor the federal courts could issue an in- junction in such cases enjoining the sale to a Negro because by so doing the courts would be giving effect to racial discrimination in violation of the Constitution, laws and public policy of the United States. The question whether a party who sold toa Negro in violation of the covenant might be sued for damages for breach of the covenant was not decided by the high court in those cases. Therefore those who sought to maintain the vitality of the racial restrictive covenants found it necessary to resort to the courts for determination of this question. The first such case involving this question arose in the State of Missouri in 1949 in Weiss v. Leaon. The highest court of that state held that damages, if proved, might be recovered, The next case arose in 1950 in the District of Columbia. In Robert v. Curtis, the United States District Court for the District of Columbia held that the United States Legal Defense and Educational Fund -- April 28, 1953 Page 6 Supreme Court's decisions in 1948 were broad enough to include suits for damages. Therefore, under those decisions, the federal courts could not entertain a suit for damages, The next case arose in 1950 in the State of Michigan where the Circuit Court for Wayne County, in Phillips v. Naff, ruled that in accordance with the United States Supreme Court decision, in Shelley v. Kraemer in 1948, suits for damages for breach of a reciprocal racial restrictive covenant constituted an indirect method of enforcing racial restrictive covenants. The case which preceded the instant case, which was decided in 1951 by the highest court of the State of Oklahoma, was Correll v. Harley. In this case the court held that damages may be recovered in tort for “willful, malicious conspiracy" to injure another's property in violation of the agreement, There have also been several other cases involving suits for injunction which were pending in state courts in 1948 at the time that the United States Supreme Court rendered its decisions in the four above-mentioned cases. Subsequent to 1948, there have also been other state court cases involving suit for injunction for breach of racial restrictive covenants. In all of these cases, the state courts have denied injunctions in accordance with the decisions handed down by the United States Supreme Court. IMPORTANCE OF THE PRESENT DECISION: As indicated above, California, Michigan and the District of Columbia have held that suits for damages for breach of racial restrictive covenants may not be maintained. Missouri and Oklahoma have held the contrary. It is therefore important Legal Defense and Educational Fund -- April 28, 1953 Page 7 that the United States Supreme Court resolve this conflict by its decision in the present case in order that this question may be finally settled. If the United States Supreme Court should affirm the California courts in this case, it will end all racial restrictive covenants. However, should the high court follow the holding in the Missouri case, the question which then might arise would be: What damages can actually be proved as flowing directly and solely from the moving in of Negroes? In Buchanan v. Warley, the United States Supreme Court said that property values may depreciate by the moving in of undesirable white persons and from putting property to perfectly lawful uses. There is now scientific evidence which proves that Negroes do not depreciate property by moving into certain residential areas. This evidence has been published in articles appearing in 1951 in the Appraisal Journal, a journal of real estate appraisers, by Charles Abrams, the noted authority on housing, and Dr. Luigi M. Laurenti of the University of California. A similar study has been made by Belden Morgan and published in The Review of the Society of Residential Appraisers for March 1952. ATTORNEYS: For Mrs. Leola Jackson--Loren Miller, NAACP attorney of Los Angeles, California, who successfully agrued Sipes_v. McGhee, one of the 1948 restrictive covenant cases before the United States Supreme Court, and several other cases arising in the State of California. He is assisted by Thurgood Marshall, Director and Counsel, N.A.A.C.P. Legal Defense & Educational Fund, of New York; Franklin H, Williams, West Coast Regional representa- tive. Assisting in preparing the brief were Maurice Walbert, James Sims and Harold J. Sinclair of California.