Property law professors Alfred Brophy and Subha Ghosh have an interesting and amusing paper discussing the legality of South Carolinian Henry Ingram's efforts to enforce a restrictive covenant banning the sale or lease of his property to members of "the Yankee race." (hat tip Propertyprofblog).

Brophy and Ghosh argue that Ingram's restrictive covenant violates common law rules against restraints on alienation, the 14th Amendment ban on racially restrictive covenants (as applied in the famous 1948 Supreme Court case of Shelley v. Kraemer), and the Fair Housing Act of 1968.

I am not so sure about the latter two arguments. Although Ingram's covenant is aimed at the "Yankee race," he defines this group to include anyone born north of the Mason-Dixon Line or residing there for one year or longer. The people banned from purchasing under this rule could easily be of any racial or ethnic origin, as could those still permitted to become buyers. It is possible, as Brophy and Ghosh suggest, that the mere use of the word "race" implies a racial classification, but I'm not convinced that this will work.

A better argument (one that the authors hint at, but don't quite make) is that even if the text of the covenant is neutral as regards to race and ethnicity, its purpose is to exclude members of the northern "Yankee" ethnic group. "Facially neutral" criteria that are intended to exclude members of a particular racial or ethnic group are illegal under the Fair Housing Act and also under the Equal Protection Clause (if there is state action). Based on Ingram's statements (quoted in the Brophy-Ghosh article), it seems clear that his motive is a generalized hostility to "Yankees," and the 1 year rule merely a means of implementing it. For example, Ingram has said that "Yankees" are "worse than fire ants" and has described his goal as "ensur[ing] that the Yankees will never again own or control large tracts of land that rightfully belong in Southern hands and under Southern domination." While "Yankees" are a more amorphous ethnic group than, say, Hispanics or Irish-Americans, the history of cultural differences and antagonism between north and south suggest that they are indeed a definable ethnic and cultural group, and as such covered by the Equal Protection Clause and the Fair Housing Act (which bans discrimination based on "national origin," a term understood by courts to encompass ethnic groups as well).

On the other hand, the good news for Ingram is that the clause in his covenant banning sale or lease of the property to any person named "Sherman" (a result of his hatred of Civil War General William Tecumseh Sherman) is probably legal.

Whatever the legal status of the covenant, Ingram is definitely the kind of white southerner that General Sherman had in mind when he said that "My aim . . . was to whip the rebels, to humble their pride, to follow them to their inmost recesses, and make them fear and dread us." In Ingram's case, the plan to instill "fear and dread" of northerners definitely worked!

Sherman also didn't exactly have warm feelings towards the state of South Carolina (which was the first to secede and historically the strongest advocate of both slavery and secession). Before occupying the state in 1865, he noted that "[t]he whole army is burning with an insatiable desire to wreak violence upon South Carolina. I almost tremble for her fate."

UPDATE: Yes, it is true, as several commenters note, that the text of the covenant is based on past residency and location of birth rather than on ethnicity. However, as I tried to point out in the original post, a provision that does not discriminate on the basis of ethnicity in its text, can still be illegal if the author's purpose was to use it to exclude members of a particular ethnic group.

For example, a clause that forbid sale of the property to basketball fans would not be illegal in and of itself. But if it could be shown that the clause was inserted because the owner thought that blacks were more likely to be basketball fans than whites, then courts would probably strike it down under the Fair Housing Act. In this case, Ingram seems to have included the language on residency and birth because he hoped it would have the effect of excluding Yankees (defined as an ethnic and cultural group).