Guest Essayist: Gennie Westbrook

In the Civil Rights Cases of 1883, the Supreme Court had ruled 8-1 that the Civil Rights Act of 1875, outlawing racial discrimination in most public places, was unconstitutional. The owners of businesses such as railroads, theatres, and hotels could impose segregation in their facilities, or they could refuse to serve African Americans altogether. The Court adopted a narrow reading of the Civil War amendments, ruling relative to the Thirteenth Amendment that such segregation was not a “badge or incident of slavery,” and that the protections of the Fourteenth Amendment applied against state action, not against private behavior. African Americans endured legal, economic, and social discrimination, as well as brutal and systemic racial violence with little hope of relief for the next seven decades.

By 1948 the tide had begun to turn when President Harry Truman ordered integration in the U.S. armed forces. In 1954 the Supreme Court outlawed segregation in public schools. In 1955 civil rights activist Rosa Parks sparked the Montgomery, Alabama bus boycott that resulted more than a year later in desegregation of the city’s buses. In 1957 Dr. Martin Luther King, Jr. spearheaded organization of a civil rights movement with nonviolence and civil disobedience at its heart. In the face of ruthless racially motivated violence and continuing intimidation, the movement took direct action to fight for racial justice with the “sit-ins” and “freedom rides,” and made significant gains. In 1964 the poll tax was outlawed, and that same year President Lyndon Johnson signed a Civil Rights Act, with a Voting Rights Act the following year.

These gains against legal (de jure) segregation, however, did not touch the de facto segregation that existed in most neighborhoods across the country. In 1917 the Supreme Court had unanimously overturned a Louisville, Kentucky ordinance that required residential segregation by race in neighborhoods. However, restrictive covenants in which residents in a neighborhood contracted not to sell property to racial or ethnic minorities were prevalent across the country until the Court ended their contractual enforceability in the 1950s. The issue became especially widespread during the twentieth century as African Americans moved to Southern cities and the North in a series of migrations from the rural South.

A related issue brought Jones v. Alfred H. Mayer Co. to the Supreme Court. Real Estate developer Alfred H. Mayer built a planned community, Paddock Woods, next to a golf course north of St. Louis. Joseph Lee Jones, an African American, and his wife Barbara, who was white, had been saving their money to buy a new suburban home. When they toured Paddock Woods in 1965, they made an offer to purchase the house and lot they had selected. Mayer refused the Joneses’ offer, explaining his “general policy not to sell houses and lots to Negroes” in this particular community. Mayer sold homes to blacks, but when he did so in white neighborhoods, he lost business. The Joneses filed suit against the real estate developer, saying that his policy violated the Civil Rights Act of 1964, and the Thirteenth and Fourteenth Amendments. In addition, they maintained that his policy violated the 1866 Civil Rights Act, which had become United States Code Sections 1981 and 1982: “[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.” Further, they sought an injunction against Mayer’s selling the property they planned to buy, hoping it would still be available once the courts ruled in their favor. According to Alfred Mayer’s friends and family, he actually welcomed the Joneses’ suit as a test case, hoping that, as one of the largest real estate developers in the area, he could lead out in desegregating the real estate market. When Mayer quietly donated money to the Greater St. Louis Committee for Freedom of Residence, he included this note with his check: “I hope I will lose this case.”

Judge John Keating Regan, who presided over the case in U.S. District Court, dismissed the Joneses’ case, writing, “The legal right to purchase property does not…carry with it a corresponding obligation on the part of the owner to enter into a contract of sale against his will.” He rejected the U.S. Code Section 1982 claim. The federal courts, he wrote, had established in a number of cases that the civil rights protections contained in this statute were directed against government activity, which was not involved in the Joneses’ dispute between a willing buyer and an unwilling seller. After losing at the District Court level and again at the Circuit Court level, the Joneses appealed the case to the Supreme Court.

The question before the Court was two-fold. First, does the law asserting that “[a]ll citizens … shall have the same right … [to] purchase… real and personal property” apply to sale by private parties? Second, does Congress have the constitutional power to prohibit all racial discrimination, private and public, in the sale and rental of property?

The case was argued before the Supreme Court April 1-2, 1968. On April 4, Dr. Martin Luther King, Jr. was assassinated in Memphis, Tennessee, and racial frustration and despair swept across the country in a massive wave of violent rioting. Lyndon Johnson called for all Americans to reject violence and racism, and he called on Congress to expedite enactment of the stalled Civil Rights Act of 1968, also called the Fair Housing Act. Congress did so, and President Johnson signed the law on April 11. This new law had no impact for the Jones couple themselves, because their case concerned events that had predated its enactment.

At the end of its term in June of that year the Court ruled 7-2 that U.S. Code Section 1982 did indeed protect the Joneses’ right to purchase the property. Justice Potter Stewart wrote for the majority, “We hold that § 1982 bars all racial discrimination, private as well as public, in the sale or rental of property, and that the statute, thus construed, is a valid exercise of the power of Congress to enforce the Thirteenth Amendment.” Reviewing the legislative history of Section 1982, Stewart explained that

The Thirteenth Amendment authorized Congress to do more than merely dissolve the legal bond by which the Negro slave was held to his master; it gave Congress the power rationally to determine what are the badges and the incidents of slavery and the authority to translate that determination into effective legislation…Whatever else they may have encompassed, the badges and incidents of slavery that the Thirteenth Amendment empowered Congress to eliminate included restraints upon those fundamental rights which are the essence of civil freedom, namely, the same right . . . to inherit, purchase, lease, sell and convey property, as is enjoyed by white citizens.

In Justice Harlan’s dissent, he disagreed with the majority’s interpretation of Section 1982, pointing out that the words of the statute convey a right to equal status under the law, not an “absolute right enforceable against private individuals.” He also reviewed the legislative history of the Civil Rights Act of 1866, concluding that “the civil rights bill was intended to apply only to state-sanctioned conduct, and not to purely private action.” Further, he explained that the Court should have declined to decide this case in the first place since Congress had enacted the Fair Housing Act. Justice Harlan maintained that this new law, containing explicit fair housing stipulations, provided even more protection against racial discrimination than that which could result from the Joneses’ isolated case.

Joseph and Barbara Jones had won their victory in the Supreme Court, but they never got their dream home. By the time the decision was announced in 1968, the specific Paddock Woods house they wanted had been sold to another buyer, and the price of similar homes in the area had escalated beyond what they could afford. “Discouraged by long court delays,” they bought a less expensive home in another neighborhood. In Jones, the Court more broadly defined the social conditions that resulted in “badges and incidents of slavery” than the 1883 Court had done in the Civil Rights Cases, and demonstrated the Court’s willingness to strike a blow against racial discrimination in housing.

Despite the legal victory and important civil rights gains, housing in St. Louis and in many other cities remained segregated. University of Chicago professor Gerald N. Rosenberg has written, “Court decisions have resulted in little appreciable change in housing discrimination.” The civil rights movement was highly successful in tearing down the edifice of legal segregation, but it achieved more mixed results in attacking the badges of de facto racial inferiority and segregation in the United States.

Jones v. Alfred H. Mayer Co. (1968) Supreme Court decision:

Gennie Westbrook, formerly a classroom teacher, is a Madison Fellow (2000 TX), and senior advisor for education at The Bill of Rights Institute.

Sources Consulted

Theodore Eisenberg. Jones v. Alfred H. Mayer Co. (1968) The Oxford Companion to the Supreme Court, Kermit Hall, ed. 1992

Jones v. Alfred H. Mayer Co. (1968)

Jones v. Alfred H. Mayer Co. (1968)

Darrell A.H. Miller. “White Cartels, the Civil Rights Act of 1866, and the History of Jones v. Alfred H. Mayer Co.” Fordham Law Review Volume 77 Issue 3, 2008

Gerald N. Rosenberg. “Housing Discrimination” The Oxford Companion to the Supreme Court, Kermit Hall, ed. 1992

Mira Tanna. “Jones v. Mayer Revisited, Symposium: New Strategies in Fair Housing,” Cleveland State Law Review, 2009

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