More on Sex-Offender Covenants and Race

Co-guest-blogger Christine asks what happens when a neighborhood requires restrictive covenants that ban sex offenders.

There are all sorts of interesting property questions -- for example, what happens when the property owner dies intestate, and the property would pass to a sex offender under the intestacy law?  But one likely consequence of such a restriction is that the neighborhood is going to be whiter.  As Dan Filler notes, the "sex offender" label is disproportionately placed on African-Americans, sometimes for actual sex offenses and sometimes for various convictions that have little to do with sex crime.  The result is that any law or ordinance singling out registered "sex offenders" will have a disproportionate impact on Blacks.

Meanwhile, a recent Volokh.com post relates to Filler's other take-home point -- that the media sensationalizes kidnappings and sexual crimes against white girls and young women.  Orin Kerr notes the media frenzy over yet another (apparently) kidnapped, photogenic, white young woman, writing: 

I am often amazed at how brazen the [media] can be in selecting what types of missing persons reports it selects as leading stories, especially on websites and TV. The missing person is almost always young; always a woman; always white; and always attractive. . . a person who followed the [media] uncritically might think that the only missing people in America are young attractive white women.

As shown by Filler, it is precisely that kind of sensational narrative -- young white women kidnapped by strangers -- that leads to public pressure to crack down on sex offenders.  Meanwhile, most sex offenses are not stranger kidnappings or rapes, and most people who are categorized as sex offenders are not stranger rapists or kidnappers.  While each state's laws differ, the burdens of the "sex offender" label tend to fall mostly on Blacks.

Filler's argument could not be more timely, because (as Christine notes) these kinds of laws are going to spread quickly, if they are found to be constitutional.  For example, the city of Miami Beach recently enacted an ordinance that is designed to have a similar effect. 

One likely result will be negative externalities -- sex offenders forced out of Miami Beach and Lubbock will have to go somewhere, and so other communities may suffer from higher concentrations of sex offenders.  Another likely result is the creation of whiter neighborhoods.

Is that, by itself, potentially violative of Shelley v. Kramer?  I don't know that it is.  But the racially disproportionate effect of sex-offender property restrictions may prove to be one way that they could be attacked.

(By the way, Filler's piece is at 89 Iowa L Rev 1535 (2004), and the SSRN version is available here.)