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47 U. Kan. L. Rev. 61 (1998-1999)
Shelley v. Kraemer's Fiftieth Anniversary: A Time for Keeping; a Time for Throwing Away

handle is hein.journals/ukalr47 and id is 73 raw text is: Shelley v. Kraemer's Fiftieth Anniversary: A Time
for Keeping; a Time for Throwing Away?*
Shelley Ross Saxer
I. INTRODUCTION
Fifty years ago, the United States Supreme Court in Shelley v.
Kraemer' refused to evict two families from their homes by enforcing
racially restrictive private covenants.2 The Shelley decision was long
overdue in the battle against racial discrimination in this country.3 The
Court held that enforcement of the private covenant violated the Equal
Protection Clause under the Fourteenth Amendment,4 concluding that
judicial enforcement constituted state action subject to constitutional
restrictions.5 Shelley ended the use of private restrictive covenants to
overtly exclude racial and ethnic minorities from certain neighborhoods.
By finding state action based on a court's involvement in enforcing
private action,6 however, the Court blurred the line7 between state action,
* Ecclesiastes 3:6.
* Associate Professor of Law, Pepperdine School of Law. B.S. 1980, Pepperdine University;
J.D. 1989, University of California at Los Angeles. The author thanks research assistants Nathanael
Thomas, Julie Trotter, Minda Wilson, Sung Won, and Tomas Kuehn for their research and editing
assistance. The author assumes responsibility for any errors or omissions in this Article.
1. 334 U.S. 1 (1948).
2. See id. at 20.
3. See David A. Strauss, State Action After the Civil Rights Era, 10 CONST. COMMENT 409,
413 (1993) (Expanding 'state action' was a way of bypassing Congress; it was functionally
equivalent to getting a range of civil rights legislation enacted before Congress was willing to do so.
Shelley v. Kraemer anticipated the federal open housing laws by more than twenty years.); William
W. Van Alstyne & Kenneth L. Karst, State Action, 14 STAN. L. REv. 3, 5 (1961) (The abdication
of local responsibility for assuring racial equality has no doubt contributed to an increased willingness
of the Supreme Court to offer protection in the form of national constitutional standards, applicable
to more and more activities previously considered 'private.').
4. See U.S. CONST. amend. XIV, § 1. Section 1 of the Fourteenth Amendment reads in part:
No State shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any person of life, liberty, or
property without due process of law; nor deny any person within its jurisdiction the equal
protection of the laws.
Id.
5. See Shelley, 334 U.S. at 20.
6. See id
7. See, e.g., Charles L. Black, Jr., The Supreme Court, 1966 Term-Foreword: State Action,
Equal Protection, and California's Proposition 14, 81 HARV. L. REV. 69, 95 (1967) (describing the

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