Black History – Legal History – Chicago History: The Story of Carl Hansberry
Carl Hansberry was a real “renaissance man.”
He had been a deputy U.S. Marshall. He was an inventor with several patents.
But he ultimately excelled at being a business entrepreneur – as a banker and as a real estate broker. He founded and was President of Lake Street Bank in Chicago and was one of the most successful real estate agents of his time. His general level of prosperity seemed to demand that he relocate his family consisting of a wife and four young children to a more prominent neighborhood in the City.
But Carl Hansberry had limited options. The year was 1937, and he was African American. In addition, he lived in the public eye. Besides being the founder of one of Chicago’s first black-owned financial institutions and an objectively wealthy man, Carl Hansberry was an activist. He designed the businesses he built for the betterment of the black community. He helped organize and fund philanthropic organizations that advanced African American interests. He took political risks as well, at a time when speaking out was dangerous; he created the “Hansberry Foundation,” and wrote, published, and distributed pamphlets advocating for black civil rights. The Chicago Defender, a newspaper that catered to African American and urban issues, had dubbed Hansberry a “race man,” a title reserved for blacks who selflessly and tirelessly worked to contribute to the betterment of the community, and bravely stood against the ideas, people, and institutions in society that threatened and sought to limit the well-being and prosperity of his people.
The prominent neighborhood where Hansberry chose to purchase a home in 1937 was Chicago’s Woodlawn neighborhood. Today, Woodlawn has mostly African American residents. But back then, it was a white neighborhood on Chicago’s south side. Despite a huge influx of black residents into Chicago at the time, African Americans were shut out of neighborhoods like Woodlawn because of racially restrictive covenants.
A “restrictive covenant” is an agreement in a deed to real estate or in a plat of development that limits the future use of the property by any subsequent owner. An example might be “no fence may be constructed exceeding six feet in height,” or “no structure may be erected less than 5 feet from the lot lines,” or “basketball and tennis courts are prohibited.” Any new owner who violates these covenants can be fined, penalized, or legally enjoined and forced to comply.
In 1928, a group of white businessmen organized a homeowner’s association in Woodlawn, establishing restrictive covenants to cover the entire neighborhood. Every owner of the 500 homes that joined the Woodlawn Property Owners Association purportedly agreed to a restrictive covenant that “no part of the land should be sold, leased to, or permitted to be occupied by any person of the colored race.” This was enforceable in court just like any other contractual commitment. If an African American sought to move into one of the homes in Woodlawn in violation of the covenant, the other homeowners could file a lawsuit to seek to prevent the sale or enjoin the new occupants from taking possession.
These kinds of covenants effectively boxed African Americans into certain areas of Chicago. As more white neighborhoods adopted racially restrictive covenants, segregation was all the starker, and blacks were forced into ever shrinking spaces in poorer neighborhoods. The black population had tripled since 1900, yet by 1934, only 3% of blacks lived where 95% of the whites did. By 1937, there were 50,000 more black people than available housing units, resulting in African Americans paying up to 50% more than whites for comparable housing.
At the same time, the Depression had reduced the demand for white housing. The white population in Woodlawn had decreased by 14% from 1930 to 1934. The economic atmosphere of the 1930s made it so many white families couldn’t afford houses in Woodlawn. Because of this dip in the white market share, many homes in Woodlawn that were for sale or rent sat vacant. In a strange twist of fate, the only market for these vacant homes were wealthy African Americans– people like Carl Hansberry. White property owners ended up covertly leasing their properties to blacks for exorbitant rents, risking the penalties for violating the covenants rather than suffer financial loss.
It was into this environment that Carl Hansberry stepped, but he did not blaze the trail alone. Like so many other ground-breaking cases that eventually make it to the United State Supreme Court, there is a sense that everything here was “set up” to achieve the desired outcome.
The authors of this set-up consisted of two African American attorneys and one of the white Woodlawn property owners. Both attorneys had been involved in promoting life insurance in the black community, substantially expanding economic opportunities for African Americans. Now they were trying to open the door for blacks to own their own homes. The first, Earl Dickerson, was also instrumental in helping African Americans qualify for the mortgage loans they needed to purchase real estate. In 1937, Carl Hansberry sought out a loan from Dickerson to buy a home in Woodlawn. Dickerson knew that if Hansberry tried to purchase this house, the Association would attempt to thwart the transaction. Dickerson was able to convince the lender (a black owned business that Dickerson had helped start) that any risk was consistent with its social goals, and that the chance of an ultimate victory in court were good.
The second attorney, Harry Pace, was specifically on the lookout for an opportunity to test the validity of the Woodlawn racial covenants in court. He just needed a connection. But Pace’s connection was not with an African American buyer, but with a white seller. Pace found James Burke, a white Chicago policeman, and the owner of a 3-flat located at 6140 South Rhodes Avenue in Woodlawn. Burke had been one of the men who had helped found the Woodlawn Property Owners Association and may have had a hand in drafting the racially restrictive covenant. He had served on the Association’s board of directors, and his wife had been one of the plaintiffs in a lawsuit that had successfully enforced the covenants. In that 1934 case, Burke v. Klieman, which was brought as a class action by the Association, the Illinois Appellate Court had determined that an owner could not lease his property to an African American, and that the covenants were valid not just for current owners, but for the future.
But, by 1937, Burke had experienced a falling out with the Association. The history of it is not clear – Burke and his wife had since divorced, and perhaps he bore her ill will, or maybe it was an issue with the entire association — but Pace and Burke became unlikely allies. When Burke had resigned his position with the Association, he had declared that he wanted to “put negroes in every block” of Woodlawn. Whether Burke was a noble man or not, Dickerson, Pace and Hansberry had their opening.
Pace guided Burke to sell the property to Hansberry through a third party. Even before Hansberry and his family could move in, the Association filed suit to enforce the covenant. The complaint alleged that through fraudulent concealment, Burke, Price, and the lender (represented by Dickerson) had tried to hide the fact that Hansberry was black. The great irony was that Burke was now a defendant in Hansberry’s case, which sought to overturn the ruling in the prior lawsuit brought by his wife.
At trial, the Woodlawn Association alleged that the restrictive covenant was valid and enforceable because 95 percent (or 475) of the 500 members of the Association had signed it. Hansberry v. Lee. 311 U.S. 32, 38 (1940). This was supported by the decree in the Burke decision from four years before, where the court had accepted a stipulation by the parties regarding the 95 percent acceptance rate. Hansberry responded that he had not been a party to the Burke case, so he was not bound by it, and to use it to deny his right to litigate the issue violated due process. Id.
After hearing all the evidence, the trial court found that only 54 percent of the owners had signed the covenant, making the stipulation relied on in the Burke case fraudulent. Id. Yet, the trial court ruled that the validity of the covenant was res judicata (the principle that once a matter has been decided by a court it cannot be relitigated by the same parties), and therefore could not be challenged, regardless of any other evidence. The court ruled in favor of the Association. Id.
On appeal, the Illinois Supreme Court adopted the trial court’s reasoning, finding that the 1934 Burke v. Klieman case was a “class or representative case,” and that “other members of the class are bound by the results in the case.” Lee v. Hansberry, 372 Ill. 369, 373 (1939). Agreeing that the Burke case’s ruling was res judicata, the question of the covenant’s validity had already been litigated and decided, and the trial court’s ruling was affirmed. Hansberry, 311 U.S. at 39-40.
Hansberry’s legal team, now bolstered by an all-star lineup of attorneys from the NAACP, appealed to the U.S. Supreme Court. The centerpiece of Hansberry’s argument was that the res judicata issue should not apply to him because he was not a party to the Burke suit and was thus not bound by its ruling. In addition, the revelation at trial that the racially restrictive covenant had not been properly adopted meant that upholding its validity based on a fraudulent stipulation denied Hansberry’s due process rights under the 14th Amendment. Id. at 38.
The U.S. Supreme Court, however, sidestepped the Constitution completely. Instead, the court hyper-focused on technicalities related to class actions, overlooking the obvious racism and the blatant unfairness of the entire process. The Court determined that the class action plaintiffs did not “adequately represent” absent members of the class. Id. at 40-43.
In Hansberry’s case, the U.S. Supreme Court determined that the Burke judgment did NOT adequately represent his interests. The court explained that the restrictive covenant did not create a joint obligation, and that an inherent conflict existed between homeowners who sought to enforce the covenant and those who sought to challenge its validity. The interests of all the owners could not possibly be the same. Also, the defendants in the Burke case were not treated as if THEY were representing a class, and that the judgment, though binding on them, could not effectively bind the rights of anyone in the future. Id. at 44-46. Because of this, the Court reversed the judgment of the lower courts. Hansberry was the winner after all!
In its conclusion, the court made a veiled reference at what might have been the reason for its decision. In explaining how the defendants’ interests in the Burke case did not necessarily line up with the defendants in Hansberry’s case, the Court noted that the Burke defendants were “nominal defendants,” and that “it does not appear that their interest in defeating the [covenant] outweighed their interest in establishing its validity.” Id. at 46. While not saying so directly, the Court seemed to imply that the Burke defendants, who were ostensibly all white homeowners, really didn’t have a vested interest in whether they won or lost the case. The defendants in the current case, however, included African Americans, whose interests in invalidating the covenant were clear.
But there was also a white defendant in Hansberry’s case who had a unique position. James Burke would have been considered one of the class action plaintiffs in Burke. Indeed, his wife was the named plaintiff of the class. There would have been no doubt at the time Burke was litigated in 1934 that James Burke was one of many plaintiffs seeking to enforce the racially restrictive covenant. The evidence showed he had signed the covenant, leading to the implied conclusion he intended to be bound by it. But here he was, six years later, a defendant in a similar legal action seeking to invalidate the same covenant. Was Justice Harlan Stone, the opinion’s author, specifically thinking of James Burke when he defined the defendants as “nominal?”
Regardless, the judgment against Carl Hansberry had been reversed, and his purchase of James Burke’s property went forward. The U.S. Supreme Court’s ruling was trumpeted in the black community as a tremendous victory. The Chicago Defender proclaimed to its largely black readership that “The iron band of restrictive covenants which has checked the eastward movement of the Race on Chicago’s South side was pierced at one point by a decision handed down by the United States Supreme Court.” In the same edition, an interview with Hansberry indicated he had purchased the property for the “purpose of trying to have the theory of restrictive covenants once and for all abolished, or declared as against the public policy of the state and nation.”
But the ultimate legality of racially restrictive covenants had not been directly addressed, and Hansberry’s new neighbors were not pleased with the result. After his family moved in, they were subject to mob violence. A brick thrown through a window nearly killed his youngest daughter. His wife always carried a pistol with her and kept close watch over the children. Those children were subjected to open humiliation, and were spat upon, cursed at, and beaten as they walked to and from school every day.
These daily struggles and the anxiety they caused took a terrible toll on Carl Hansberry. His health appeared to be in decline. He tried to continue his activism, and ran for Congress later that year, but lost. Depression began to set in. He became extremely disillusioned. He began to feel that the great victory he had won in court had all been in vain. Chicago’s neighborhoods were still as segregated as ever. He decided to relocate his family to Mexico, to escape the country whose noble ideals he now felt had betrayed him. While visiting Mexico, he suffered a cerebral hemorrhage, and died there on March 17, 1946.
Sadly, had Carl Hansberry lived another two years, he would have seen the fruit of the seeds he had planted when he bought the 3-flat in Woodlawn. On May 3, 1948, the U.S. Supreme Court issued its decision in Shelly v. Kramer, 334 U.S. 1 (1948), which held racially restrictive housing covenants cannot be legally enforced and were unconstitutional because of the 14th Amendment’s Equal Protection Clause. Justice Harlan Stone had also died in 1946, and none of the same attorneys were involved. Chief Justice Fred Vinson wrote the opinion, which was a unanimous 6-0 decision. But doesn’t the U.S. Supreme Court have nine members? Yes, but three of the justices had to recuse themselves because they owned homes which had racially restrictive covenants.
There was one other product that grew out of Carl Hansberry’s home purchase and social experiment. His youngest daughter – the one who had dodged the brick – grew up to be a playwright. In 1959, Lorraine Hansberry’s play, A Raisin in the Sun, premiered on Broadway. The play told a fictionalized version of her family’s story, about a black family who decides to purchase a home in an all-white neighborhood in Chicago. It was the first time an African American female author had a play performed on Broadway.
The title of the play comes from a Langston Hughes poem, “Montage of a Dream Deferred,” “What happens to a dream deferred? Does it dry up like a raisin in the sun? Or does it explode?”
Had Carl Hansberry lived to see his daughter’s work, he would have seen his “renaissance man” concept come full circle. His daughter portrayed his activism and idealism in the face of the racial injustice and oppression he fought so hard against in the character of “Mama,” the matriarch of the family in the play. Mama is determined to get her family out of a ghetto tenement. She rejects the community group’s cash offer to stop her family from moving into its all-white neighborhood, saying to her son, eager to take the money:
“I come from five generations of people who was slaves and sharecroppers — but ain’t nobody in my family never let nobody pay ‘em no money that was a way of telling us we wasn’t fit to walk the earth. We ain’t never been that — dead inside.”
Carl Hansberry never felt it himself, but he was vindicated. Vindicated in his court victory. Vindicated after death by the Shelly case. Vindicated by his daughter’s portrayal of his ideals on stage, and her life dedicated to civil rights activism. Carl Hansberry’s story is Chicago-centric, but with universal appeal. It’s a shame that when the concept of the 14th Amendment and equal protection is presented in American law schools, the name “Shelly” is remembered, and not “Hansberry.”
SOURCES:
Shelly v. Kramer, 334 U.S. 1 (1948).
Hansberry v. Lee. 311 U.S. 32, 38 (1940).
Lee v. Hansberry, 372 Ill. 369, 373 (1939).
Burke v. Kleiman, 277 Ill. App. 519 (1934).
Anna Price, Hansberry v. Lee: The Supreme Court Case that Influenced the Play “A Raisin in the Sun,” IN CUSTODIA LEGIS, Library of Congress, January 24, 2023, https://blogs.loc.gov/law/2023/01/hansberry-v-lee-the-supreme-court-case-that-influenced-the-play-a-raisin-in-the-sun/
Radiolab: The Vanishing of Harry Pace: Episode 2, WNYC STUDIOS (June 18, 2021), https://radiolab.org/episodes/vanishing-harry-pace-episode-2
Ron Grossman, Flashback: A Chicago Family Defied a Racist Real Estate Covenant. The Backlash and Legal Fight Inspired ‘A Raisin in the Sun,’ Chicago Tribune, July 10, 2020, https://www.chicagotribune.com/history/ct-opinion-flashback-hansberry-house-restrictive-convenant-20200710-dslzaju35ngmpghgwazpcodosq-story.html
Becky Beaupre Gillespie, A Dream Deferred, Advanced, and Remembered, The University of Chicago Law School, April 29, 2020, https://www.law.uchicago.edu/news/dream-deferred-advanced-and-remembered
Alan R. Kamp*, The History Behind Hansberry v. Lee, 20 U.C. Davis L. Rev., 481 (1987).
(*Allen Kamp was a Professor at John Marshall Law School when the author was a student there).