Tovey v. Levy: Ending State Enforcement and Beginning Key Research

By Gabriel Bassin

On November 18, 1948, the Supreme Court of Illinois issued an important decision on enforcing racially restrictive covenants in Chicago. Just months beforehand, the U.S. Supreme Court radically reduced the power of restrictive covenants in Shelley v. Kraemer, determining that courts could not enforce these agreements. In some respects, Tovey v. Levy simply followed in the footsteps of the Shelley v. Kraemer decision, ruling in line with the higher court. But before the decision, this case did threaten the enforcement of restrictive covenants before the court reaffirmed the state’s inability to do so.

The most significant element of Tovey v. Levy may lie beyond the outcome of the case. Tovey v. Levy incorporated a unique research study that detailed the scope and impact of racially restrictive covenants in Chicago as evidence in its trial. In a way, it set a precedent for the future studies such as the Chicago Covenants Project in addition to serving as the basis for evidence used in later U.S. Supreme Court rulings. Thus, the story of Tovey v. Levy demonstrates both a historically critical restriction of states enforcing racially restrictive covenants and the necessary framework for future court rulings and research projects.

Highlighted area is 417 - 421 W. 60th St. in Englewood.

The case began with a restrictive covenant that included 417-421 W. 60th Street in Englewood. [1] Hyman L. Levy and Chritene J. Levy, the previous owners of the building, signed a racially restrictive covenant with their neighbors in 1928. [2] In 1944, the Levys executed a deed with the Cadillac Hotel Corporation, who immediately leased the property to Joseph J. Allen, a Black man. [3] Allen proceeded to lease/sublease different units on the property to a number of Black residents. [4] In response, the plaintiff, one of the neighbors party to the covenant, filed for an injunction on the grounds that this constituted a violation of the previously signed covenant. [5] Upon reaching trial, the defendants' lawyers, who worked for the NAACP, argued the covenant was invalid, taking issue with its constitutionality, its definition of Black people, various spelling errors, smudges, and deviations in the owners’ names. [6] In spite of their efforts, the trial court ultimately deemed the covenant valid and ruled for an eviction, which the Chief Justice of the Superior Court enforced shortly afterward by decree. [7] With this decision, an Illinois court threatened by decree to evict Black residents under the provisions of a covenant. The Supreme Court was on the cusp of breaking a major barrier, allowing Black people to move into previously restricted neighborhoods where owners were willing to lease their properties, without threat of eviction. Yet just ahead of this key decision, an Illinois trial court judge had reaffirmed the enforcement of restrictive covenants through state action.

At the time, lawyers with the NAACP had been strategizing to dismantle racially restrictive covenants, actively involved in previous covenant cases. In 1940, the United States Supreme Court decided Hansberry v. Lee, building hope that they could successfully challenge covenants and win. In 1942, Charles Hamilton Houston, an NAACP lawyer, then successfully argued Hundley v. Gorewitz. However, in 1945, when Mays v. Burgess was denied certiorari by the United States Supreme Court, NAACP lawyers gathered in Chicago to institute a new strategic approach. [8] During the trial, NAACP lawyers who were involved in the defense of Tovey v. Levy presented the case as a potential opportunity to reach and win in the Supreme Court. Loring Moore, one of the lawyers, presented their approach of employing sociological and economic expert testimony in conjunction with a research study in this case. [9] While Shelley v. Kraemer ended up being the case to reach the Supreme Court, Tovey v. Levy helped develop the key approach of introducing empirical research, thereby engaging sociological and economic evidence in the courtroom.

Loren Miller was an influential American journalist, civil rights activist, attorney, and judge. As chief counsel in 1948 he helped outlaw racial restrictive covenants in Shelley v. Kraemer.

Tovey v. Levy eventually reached the Illinois Supreme Court which reversed the decree, ruling that state enforcement of restrictive covenants was unconstitutional, but not before affirming the existence of racially restrictive covenants. In its decision, the Illinois Supreme Court directly cited the recent U.S. Supreme Court’s decision from Shelley v. Kramer, explaining how state enforcement of these covenants was unconstitutional per the Fourteenth Amendment. [10] While unquestionably important that the Illinois Supreme Court prevented state enforcement, the decision also validated the practice of private parties signing these covenants. “The fourteenth amendment erects no shield against merely private conduct, however discriminatory or wrongful.” [11] So long as the state did not enforce the terms of a covenant, private parties were continually entitled to contractually form these racially discriminatory agreements. In a sense, Tovey v. Levy ensured that Shelley v. Kraemer remained only applicable to the unenforceability of covenants, but nothing more expansive, nothing outlawing their existence.

While this ruling did reverse the previous decree for eviction, the decree had already forced Black residents from the building. [12]  In fact, the plaintiffs petitioned the Illinois Supreme Court to drop the case, claiming it to be irrelevant because the tenants had already been evicted. [13] Not to be misunderstood, it is historically critical that the Illinois Supreme Court took this case, upholding an important higher court ruling, overturning the decree, and enabling Black residents to move into neighborhoods without fear of state eviction due to covenants. There was an agreement in Illinois to wait until after the U.S. Supreme Court ruled on Shelley v. Kramer before ruling on thirty-some similar cases. [14] At the same time, one must also acknowledge that Black residents still faced eviction while waiting for this case to be overturned.

Aside from the court’s decision, Tovey v. Levy offers a landmark moment in the history of researching the impact of these covenants from its trial. In the court case, the defense focused on a study undertaken to demonstrate the “de facto situation of unconstitutional racial zoning” resulting from restrictive covenants in Chicago. [15] The study uncovered nearly 700 covenants covering two-thirds of Chicago, and it presented this information by mapping three different areas: areas covered by the covenants, areas concentrated with Black residents, and non-residential areas. [16] Ultimately, the researchers presented their findings: out of 155 square miles of Chicago, 40 square miles were restricted by covenants, 70 square miles were nonresidential, 10 square miles featured a high concentration of Black people, and the final 40 square miles presented uncertainty as to whether obstacles to Black residency existed. [17] The map they generated then appeared in the Chicago Defender. [18] This research presented previously unparalleled findings on the breadth and depth of covenant restrictions in Chicago.

Consequently, the study conducted for Tovey v. Levy broke ground on important research, prompting future court rulings and further research. The research conducted entered “sociological and economic evidence into testimony — something that would be repeated in the U.S. Supreme Court restrictive covenant cases” such as Shelley v. Kraemer. [19] By refocusing the covenants on the resulting community impact, court cases could visualize the gravity of these agreements. Tovey v. Levy offered a window into the extensive segregation generated by a high volume of covenants. Not long after Tovey v. Levy, the U.S. Supreme Court received similar evidence as testimony, providing a new route to continue dismantling this system of segregation.

The study performed for Tovey v. Levy remains just a beginning. Historian Wendy Plotkin found that “a new study of covenants is needed to obtain a complete and accurate inventory of their existence and terms throughout the Cook County area.” [20] In response, the Chicago Covenants Project is currently working to uncover every racially restrictive covenant in Chicago’s history. Similarly to Tovey v. Levy, this data is then mapped to visualize the extent and impact of these agreements. 

Thus in many ways, Tovey v. Levy’s study provides a genesis to critical research undertaken today on Chicago’s history with covenants. Tovey v. Levy initiated the important step toward fully comprehending how these covenants shaped Chicago, enabling courts to critically reflect on the discriminatory impact. And while Tovey v. Levy affirmed the end to state enforcement of covenants in Illinois, the influence of restrictive covenants remains pertinent today. Today, the Chicago Covenants Project continues to build upon Tovey v. Levy’s legacy, understanding how racially restrictive covenants shaped local communities.

Notes

[1] Wendy Plotkin, “Deeds of Mistrust: Race, Housing, and Restrictive Covenants in Chicago, 1900-1953,” PhD diss., (University of Illinois at Chicago, 1999), 237, https://search.library.northwestern.edu/permalink/01NWU_INST/p285fv/cdi_proquest_journals_304572637. 

[2] Tovey v. Levy, 401 Ill. 393, 82 N.E.2d 441 (Ill. 1948).

[3] Tovey v. Levy, 401 Ill. 393, 82 N.E.2d 441 (Ill. 1948).

[4] Tovey v. Levy, 401 Ill. 393, 82 N.E.2d 441 (Ill. 1948).

[5] Tovey v. Levy, 401 Ill. 393, 82 N.E.2d 441 (Ill. 1948).

[6] Wendy Plotkin, “Deeds of Mistrust,” 237.

[7] Wendy Plotkin, “Deeds of Mistrust,” 237.

[8] Clement E. Vose, “NAACP Strategy in the Covenant Cases”, 6 W. Res. L. Rev. 101 (1955), 120, https://scholarlycommons.law.case.edu/caselrev/vol6/iss2/4.

[9] Clement E. Vose, “NAACP Strategy in the Covenant Cases,”121 .

[10] Tovey v. Levy, 401 Ill. 393, 82 N.E.2d 441 (Ill. 1948).

[11] Tovey v. Levy, 401 Ill. 393, 82 N.E.2d 441 (Ill. 1948).

[12] Wendy Plotkin, “Deeds of Mistrust,” 258.

[13] Wendy Plotkin, “Deeds of Mistrust,” 251.

[14] Wendy Plotkin, “Deeds of Mistrust,” 305.

[15] Wendy Plotkin, “Deeds of Mistrust,” 21.

[16] Wendy Plotkin, “Deeds of Mistrust,” 21.

[17] Wendy Plotkin, “Deeds of Mistrust,” 26.

[18] Wendy Plotkin, “Deeds of Mistrust,” 21.

[19] Wendy Plotkin, “Deeds of Mistrust,” 305.

[20] Wendy Plotkin, “Deeds of Mistrust,” 40.

Bibliography

Plotkin, Wendy. “Deeds of Mistrust: Race, Housing, and Restrictive Covenants in Chicago,

1900-1953.” PhD diss., (University of Illinois at Chicago, 1999). https://search.library.northwestern.edu/permalink/01NWU_INST/p285fv/cdi_proquest_journals_304572637.

 Tovey v. Levy, 401 Ill. 393, 82 N.E.2d 441 (Ill. 1948) https://casetext.com/case/tovey-v-levy. 

​​Vose, Clement E., NAACP Strategy in the Covenant Cases, 6 W. Res. L. Rev. 101 (1955)

Available at: https://scholarlycommons.law.case.edu/caselrev/vol6/iss2/4.