A bill to ban racially or religiously restrictive covenants in property deeds now faces an uncertain future after a prominent racial justice advocate told lawmakers that the bill needs more testimony.
“It’s my personal opinion that the bill should be tabled,” Rev. Mark Hughes, executive director of the Vermont Racial Justice Alliance, said at a Senate Judiciary Committee meeting on Tuesday.
It’s now “up in the air” whether the committee will move ahead with the bill, committee chair Sen. Dick Sears, D-Bennington, said in an interview Tuesday afternoon.
Restrictive covenants have been effectively null for more than 70 years, following a series of court decisions — notably, the U.S. Supreme Court decision in Shelley v. Kraemer from 1948. The court held that such provisions, which were used to block the sale of property to Jews and people of color, violated the equal protection clause of the 14th Amendment.
The decision didn’t ban or remove covenants outright, but it prohibited the government from enforcing them.
H.551, which the House passed in March, would “prohibit racially and religiously restrictive covenants from ever being used in Vermont again, regardless of their enforceability,” according to the text of the bill.
The bill also outlines a way for property owners to “release” their land from a discriminatory covenant. This process would not alter the existing land records, but would add a document that explicitly disavows the covenant.
The bill wasn’t expected to face pushback and hadn’t attracted much attention — even from Vermont’s Human Rights Commission.
“This is a bill that the HRC supports but did not follow closely because we did not think it was controversial,” Bor Yang, the commission’s executive director, wrote in an email to VTDigger on Tuesday. “I don’t have any concerns about the bill and I hope it passes.”
But to Hughes, both the focus of the bill and the process behind it missed the mark. If the Legislature intended a meaningful step toward racial justice, he said, they should have taken testimony from people most impacted by the legacy of slavery and redlining.
The bill prioritizes landowners’ “peace of mind” but doesn’t meaningfully address disparities in generational wealth, Hughes told VTDigger on Wednesday.
“It’s totally performative,” he said. “And that’s kind of the point.”
The Vermont Racial Justice Alliance is still analyzing the bill, Hughes said. But he has some preliminary ideas on how the policy itself could be revised: If lawmakers were to make restrictive covenants explicitly illegal, he said, they could also create some kind of enforcement system to back that up. He also suggested a centralized records system, for better information on where restricted covenants were used.
“It’s not providing any mechanism to make the work easier,” Hughes said. “I don’t know that it’s necessarily creating an obstacle, but it’s not helping the real work, or I should say, what should be the priority work.”
While developing H.551, the House Judiciary Committee heard from the Vermont Bar Association and the bar’s property law section, the Office of Legislative Counsel and Burlington City Attorney Dan Richardson, according to the committee’s assistant, Amber Burke.
The House Committee gathered input from “the people that would use this bill,” namely real estate attorneys, bankers and mortgage lenders, Rep. Maxine Grad, D-Moretown, said in an interview.
“We thought that the process was fine and appropriate,” Grad said of the testimony on the bill.
Grad refuted Hughes’ critiques that the bill was merely symbolic, as it creates a method for property owners to officially release land from these covenants.
“It’s part of our ongoing work on social equity and racial equity, and it’s not at the exclusion of other things,” Grad said. “There’s lots more work to be done.”
If the Senate Judiciary Committee decided to take additional testimony on the bill, they’re up against a deadline, Sears said. Some Senate committees — including Sears’ — will cease to meet regularly after Friday, as the Legislative session enters its final weeks.
“I hate doing things without those who might be impacted by it being involved in the testimony,” Sears said. “And we’re at the end of our session, and it appears that many persons of color, and others, have not had the opportunity to weigh in.”
Richardson, the Burlington city attorney who initially proposed the bill to the Legislature, told senators on Tuesday he saw “no immediate harm” in delaying the effort until the next biennium.
Other members of the committee raised their own concerns about the bill at Tuesday’s meeting.
Sen. Joe Benning, R-Caledonia, asked why the individual release paperwork was necessary if the state imposed a universal ban on racial and religious covenants.
Vermont law only requires a title search to look back 40 years. As restrictive covenants often predate that timeframe, many landowners wouldn’t even know their deed included a covenant, Benning said.
Benning posed a hypothetical to the committee, which he called his “personal nightmare”: What if a candidate for public office had a discriminatory covenant on their house, didn’t know about it and didn’t file a release — and their opponent tried to use it against them?
“All of a sudden, we’re dividing up against each other for explanations as to why one is taking that action,” Benning said. “If society’s main intent here is simply to declare anything that exists is null and void and unenforceable, why not just stop there?”
Sears, in an interview, said he shared Benning’s concern.
“That would be somewhat embarrassing,” Sears said.
Something like Benning’s hypothetical has played out previously on the national stage. The U.S. Senate’s confirmation hearings for Supreme Court Justice William H. Rehnquist in 1986 revealed that the judge’s summer home in Greensboro, Vermont, had a covenant that banned its sale to “anyone of the Hebrew race.”
Rehnquist testified that he was unaware of the restrictive covenant until a few days before the hearing, and that he would try to have it removed, according to the New York Times.
Hughes said he was disappointed that this was even a point of concern for lawmakers, in the face of systemic disparities.
“Whether we’re talking about housing, education, employment, health services access, whether we’re talking about transportation, even the criminal justice system, economics is at the heart of all of this,” Hughes said. “That inability to transfer generational wealth is really the linchpin to systemic racism.”