Though students may not be aware of it, Spokane’s history, defined by a timeline of both good and bad events, surrounds Gonzaga University’s campus and still holds implications for the present.
Documents that instituted racist housing policies in Spokane remain on the record. Though unenforceable since 1948 due to a federal law, a GU law student is working to have them removed and is facing Spokane County in court.
These covenants attached to land transfer titles restrict one party from selling or leasing their property to another party who is not white, essentially restricting a person of color from buying or leasing a home or business.
Rick Eichstaedt, local attorney and past professor at the GU School of Law, supervised this case in GU’s Environmental Law Clinic. He represented Alex May, a homeowner who found one of these covenants attached to the house he and his wife purchased in the Comstock Neighborhood on the South Hill in 2017.
Two interns previously worked with Eichstaedt on this case.
The long battle, that began in 2017, to remove this restrictive language from records continues this year as Kiel Frey, a third-year law student at GU School of Law and the third student to work on this case, argued before the Washington Court of Appeals, Division 3 in a virtual hearing the morning of Sept. 17.
May, the issuer of this lawsuit, lost his case at the trial court and is appealing the 2019 ruling from the Superior Court that stated Spokane County and the county auditor, Vicky Dalton, do not have the authority to alter records under state law.
“I was motivated to do something about it. But I never expected this case to be continuing into 2021,” May said. “Thinking of other homeowners, it seems unlikely that many people will do this so I hope this sets a precedent for how to get this done more effectively.”
“What we are absolutely hoping for is that the court of appeals will reverse the superior court’s decision and enter an order for the county auditor or the appropriate entity to strike and eliminate these racial restrictive covenants from the public record,” Frey said.
There are about 35 to 50 houses that hold racial restrictive covenants in this property development but the numbers are not concrete, said Fr. Bryan Pham, chaplain to the GU School of Law, associate professor of law at the School of Law and supervising attorney for the Indian and General Practice Law Clinic.
When Eichstaedt moved on to another position outside of GU, Pham took over the case and it now falls under general practice.
As part of the closing process, May and his wife’s real estate agent sent over a reference that stated there was a covenant about racist housing policies in the title report that was no longer enforceable.
This realization pushed May to seek out various people knowledgeable on this subject in Spokane such as Logan Camporeale, a historian who researched these covenants during graduate school and published his findings online. Through these conversations, he connected with the Environmental Law Clinic and initiated the lawsuit to remove these racially discriminatory provisions from home deeds and titles.
He said that he wants potential homebuyers to know the entire context of what these covenants mean and that they are not enforceable anymore in order to prevent any misinterpretation.
“There is value in getting to a good point where it is clearly defined by the courts what the definition of [stricken from the record] is and if that’s not aligned with what the court legislator intended, then I guess they can take it back and repeal that law, pass a new one, or clarify the language,” May said.
May’s overall goal for this case is to move forward with a definition of what ‘stricken from the record’ means.
“It’s important to understand that all the judges, the opposing side, the county auditor, everyone acknowledges that this was an unjust law," Pham said. "It’s not that we’re fighting against racism and they’re not."
The divergence in this case is over how to handle the removal or alteration of the language without overburdening someone with the task.
“There’s a question of whether or not the auditor has the authority to go into the archives and white-out or delete every single title that says this,” Pham said. “We’re saying that statute RCW 49.60.227 gives them the authority to do it.”
“One of the things the judges asked was, ‘Are we at risk, if we were to eliminate this provision, of forgetting our history of a racist past?” Pham said. “I didn’t say this but anyone who experiences injustice is not going to forget that it happened to them. There are ways to remember injustices of the past. We remember the heroes who fought for justice. We don’t need to have a memorial of a slave owner or a Confederate general in order to remember this history.”
Pham and Frey compared the racial restrictive covenants to a Confederate statue if it were on private property.
“Kiel became sort of like an independent research student of mine," Pham said. "We get a lot of students who come into the law school who are interns within the various clinics and by the end of the semester, they finish the required clinical credits but they may still be working on a case so I usually keep them on. This gives a sense of continuity for the clients and in this case, Kiel became very passionate.”
Frey said working with GU’s clinics has provided him with access to mentors and the chance to work alongside real-life law practitioners.
“Not to mention, it’s pretty rare for someone at my level of experience to be arguing at the Court of Appeals. So, to have that opportunity, I’m appreciative,” he said.
“It was a neat exposure to a lot of community members who are concerned about the environment, racial inequality, and local issues in a way that a private firm doesn’t really focus on. There’s not a lot of money you can make off of those cases so it’s been an exposure to the community and an access for the community in a way that’s pretty unique,” Frey said.
As they await the ruling, Frey said if the case were to be reversed, a possible issue is what the title insurance companies will do with this order.
“As much as this is a public record, they also have electronic records of hundreds of documents attached to a chain of title that they would then have to alter under court order and effectuate," he said. "This can be a point of curiosity. It is certainly doable but it is a matter of getting them to comply with a court order."
The topics and kinds of cases GU’s School of Law clinics take, such as this one, address core values of justice and service at GU.
“The different clinics we have are a way to train our students to engage in the practice of the law,” Pham said. “This case is important to the GU community because it allows us to put into practice what we preach. This is not just a change in one person’s life, this is systemic change to address a systemic injustice."