Hundreds of Boise-area homes have racist covenants. 2 efforts aim to ease their sting
Ed Labenski prepared to buy what he called a dream home with his wife, Cynthia, in 2018. His daughter was 3 years old. It was one of the biggest decisions of Labenski’s life. After their offer on the Warm Springs Mesa home in Southeast Boise was accepted, Labenski was thrilled.
Then he started reading through the entire property record, which he didn’t previously have access to, and came across a troubling line in the Covenants, Conditions and Restrictions document: “No part of the real property, or any building site or structure, shall at any time be sold, conveyed, rented or leased, in whole or in part, to any person or persons not of the white or caucasian race. …”
Labenski was appalled and confused. He rushed downstairs in the home he was renting and told his wife. They questioned whether they still wanted to buy the home. They found out on their own that the clause was unenforceable. They still bought the house. But Labenski was committed to coming up with answers so others don’t go through something similar.
“That language in that property record was clear and made an impact on us,” Labenski said by phone. “It was something you really can’t unread.”
About a year and a half ago, Labenski told Sen. Melissa Wintrow, a Boise Democrat, of his experience. She spent time researching and working with lawyers, real estate agents and experts in related fields to brainstorm a solution.
Wintrow introduced Senate Bill 1240 to allow homeowners or tenants to update a housing covenant at no cost to make clear that its offending language has no legal effect. The bill passed a Senate Judiciary and Rules Committee last week, passed through the full Senate on Tuesday and next will be referred to a House committee. The bill has 21 cosponsors from both parties.
At the same time, the Boise Regional Realtors are offering grants to homeowners associations in Ada, Elmore and Gem counties to remove discriminatory language from their documents.
Restricting someone from buying a house based on race has been illegal for decades. In 1948, the U.S. Supreme Court ruled in Shelley v. Kraemer that racially restrictive real estate covenants cannot be enforced. The Fair Housing Act of 1968 outlawed housing discrimination based on race or color.
Still, housing covenants across the country went unchanged, remaining as a remnant of past racism and without anything clarifying that those clauses are void.
“Almost everybody I talk to, when I tell them these restrictive covenants are still on record, their eyes get as wide as dinner plates,” Wintrow said by phone, “and they’re like, ‘Oh my heavens, that is bad.’ ”
Racially restrictive language is common
Marcos Preciado, a Mexican American, has lived in Boise for 27 years and tried buying land on the Boise Bench in 2015. He planned to build a house once he bought the land.
As he read through the covenants, conditions and restrictions, commonly shortened to CC&Rs, Preciado found the restriction that said only white people could live there. It was a “humongous” surprise. Preciado was horrified.
He contacted the Intermountain Fair Housing Council and tried to learn more.
Even though it was no longer in effect, the language was “incredibly hurtful,” Preciado said. He thought he might still be discriminated against in that neighborhood. He questioned if he could go through with the purchase even though he was an American citizen.
“It was personal, like someone sent it to me directly,” Preciado said by phone. “Even though they never knew I was going to buy property there, it was kind of like somebody was doing it intentionally.”
Preciado chose to move forward with buying the land, but it was a hard decision. Seven years later, it still hurts. He wishes the language was removed entirely because it made him feel unwelcome.
“My hope is one day we can live and share the land that this country has offered to us,” Preciado said. “Hopefully we can live as peaceful human beings and understand each other.”
When Wintrow introduced the bill, Sen. Grant Burgoyne, D-Boise, said during the committee meeting that he also has a racially restrictive provision in the deed on his house.
In 2019, Mark Hewes was a first-time homebuyer. He already closed on the house in Southeast Boise near Ivywild Park. As a detail-oriented person, he wanted to read through all the documents. The CC&Rs mostly included details about how close things can be to the property line and other seemingly minor rules.
Then he read the line saying only white people could buy or live in the house. Hewes was shocked. He began researching. He wishes someone had given him a heads up and a note in the document explaining that the clause is outdated and unenforceable.
“It should be a happy time,” Hewes said by phone, “and then you are slapped in the face with that.”
Removing the language could require a costly process in court and erase the history of racist practices. So the bill allows for people to fill out a form, submit it to their county clerk and add a modification to the covenant. The racially restrictive language would remain, but the added modification would clarify that it legally can’t be enforced.
Washington and Wyoming have recently passed similar laws.
Advocates of Idaho’s bill say the legislation is a positive step toward recognizing the discriminatory language and clarifying what is and isn’t allowed.
Wintrow said leaving the language in these documents would be like leaving signs on water fountains promoting segregation.
“We know it’s not enforceable, but we let it stay there anyway,” Wintrow told the Idaho Statesman by phone. “Don’t let it linger about. Correct it.”
People like Labenski, Preciado and Hewes may be frightened to buy a house with that language, especially if there’s no clarification included. They may not want to be associated with that history and may question if the house is a good fit.
Wintrow touted the simplicity of the bill, since adding clarifying language would need only a short form submitted to a county clerk. It won’t cost homeowners a thing: The bill waives the $10 recording fee. She estimated it would cost the state roughly $500, depending on how many people choose to add the modification.
Idaho housing research underway
College of Idaho law professor McKay Cunningham has begun researching properties in Idaho with these kinds of racial covenants.
So far, he’s looked only at Ada County. In two months, Cunningham and his research team have already found 50 subdivisions where racially restrictive language exists. In Boise, they’ve found the language in documents related to the Warm Springs Park subdivision, the Aldape Heights subdivision, and a subdivision near Vista Avenue.
“Even though they’re outlawed today, they have entrenched racial disparities,” Cunningham said. “They have helped make racial disparities systemic to this day.”
During the Great Depression, to spur homeownership and stabilize the economy, the federal government offered incentives for people to buy homes. But those incentives weren’t available in and near neighborhoods with people of color. This practice of redlining, Cunningham said, was overtly racist.
Cunningham said racial covenants worked hand in hand with the government’s redlining approach.
“These two constructs in particular are underappreciated in the impact and the repercussions that they continue to have today,” Cunningham said.
Once Cunningham compiles a comprehensive list of properties with racial covenants in Idaho, he wants to create an interactive map that shows how different neighborhoods compare in terms of median income, access to fresh produce, environmental waste and internet connectivity.
Homeowners associations can change language
While Wintrow’s bill allows for homeowners to update their documents individually, the Boise Regional Realtors is offering money to homeowners associations wanting to delete language throughout entire neighborhoods.
Since re-doing official documents can be costly, the Boise Regional Realtors is offering grants of up to $1,000 to homeowners associations as an act of “social responsibility and patriotic duty.” The grant is based on what it has cost for similar efforts in the past.
“It’s still really bad to see that in those housing documents,” said Cameron Kinzer, Boise Regional Realtors director of government affairs, by phone. “We want to do whatever we can to amend those and get them corrected going forward.”
Though the legislation is designed to allow corrective action to be voluntary and simple, Wintrow considers it a “pretty big deal.”
“It may not be our responsibility for what has happened in the past, (but) it is our responsibility to address it in the future and to ensure it never happens again,” Wintrow said. “We know when we understand our history, we have a better chance of not repeating it.”
This story was originally published February 6, 2022 at 4:00 AM.
