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Civil Litigation,
Judges and Judiciary,
Civil Rights

Nov. 14, 2017

How Orange County began the end of racially restrictive covenants

Doss v. Bernal was filed in 1943. The plaintiffs alleged that permitting Mexicans to live in the neighborhood would cause them irreparable injury because it would require that they come in contact with Mexicans, who were lower class persons, and their presence in the neighborhood would devalue plaintiffs' property.

Delaney thomas web

Central Justice Center

Thomas A. Delaney

Judge, Orange County Superior Court

Civil Panel

Thomas A. Delaney is a judge of the Orange County Superior Court.


Alex Bernal was in pursuit of the American Dream. Born in Corona, California, Bernal worked hard all his life, got married, and started a family. Within a few years, he had saved enough money to buy a moderately priced house in an area of Fullerton two short blocks from the poor Truslow Barrio where he was raised. But the dream quickly turned into a nightmare when, within days of moving his young family into the house, Bernal was told he could not live there because he was Mexican.

Tract 448 (the Sunnyside Addition in Fullerton) was first developed in 1923 with an express restriction that prohibited the property from being "used, leased, owned or occupied by any Mexicans or person other than of the Caucasian race." Racially restrictive covenants were not uncommon in the United States in the early 20th century, particularly after discriminatory city zoning ordinances were found unconstitutional. In fact, by the time the Bernals purchased their house in 1943, a number of published state court decisions from around the country upheld the restrictions on the grounds that they did not violate any constitutional rights or public policy. Los Angeles Investment Co. v. Gary, 181 Cal. 680 (1919); Wayt v. Patee, 205 Cal. 46 (1928); Littlejohn v. Henderson, 111 Cal. App. 115 (1931); Chandler v. Ziegler, 88 Colo. 1 (1930); Ridgeway v. Cockburn, 296 N.Y.S. 936 (1937); Meade v. Dennistone, 173 Md. 309 (1938).

Some residents were outraged that the Bernals moved into the neighborhood. In fact, someone broke into their house and moved the family's furniture into the street. Other residents filed a lawsuit seeking to have the court enforce the racial covenant by removing the Bernals from the residence and permanently enjoin them from living there. Alex did not report the burglary, but he refused to give up without defending his rights.

The Lawsuit

The complaint for injunction in Doss v. Bernal was filed in Orange County Superior Court on April 30, 1943. The plaintiffs, three married couples living in Tract 448, were represented by Fullerton attorney Guss Hagenstein. They alleged that permitting Mexicans to live in the neighborhood would cause them irreparable injury because it would require that they come in contact with Mexicans, who were lower class persons, and their presence in the neighborhood would devalue plaintiffs' property.

Trial started Aug. 19, 1943, before Judge Albert F. Ross, who was specially appointed from Shasta County to try the case. Reportedly in attendance were a number of U.S. Servicemen of Mexican descent, some of whom had fought in World War II.

The Plaintiffs' Case

During trial, plaintiffs presented witnesses who testified that Mexicans are dirty, noisy, and lawless. One of the plaintiffs had testified in deposition that Mexicans were a lower class of persons and their moving into the neighborhood lowered property values. The plaintiffs called expert witnesses who testified that the intrusion of non-Caucasians, like the Bernals, in a homogenous white neighborhood typically resulted in 25-50 percent devaluation in housing values.

The Defense Case

Alex Bernal and his wife, Esther, were named defendants. They were represented by attorney David Marcus. At trial, Marcus argued that the racial covenant violated public policy. First, he called an anthropology professor to provide expert opinion testimony to explain that Mexicans are Caucasian. If Mexicans are Caucasian and the restriction applied to all Caucasians, Marcus argued, then the restriction also could be used against other whites, such as those of European descent.

Second, he argued that the enforcement of covenants against Mexicans would violate America's Good Neighbor Policy with Latin America. Established by President Franklin Delano Roosevelt in the 1930s, that policy declared no intervention in the domestic affairs of Latin American nations, and created political ties that helped unite the hemisphere. Marcus argued that social discrimination against Mexican nationals, like Esther Bernal, and her Mexican American family, violated federal policy.

In addition, Marcus argued that the racial covenant violated equal protection. As of the time of trial, no court had found that such covenants violated any constitutional right because they were seen as agreements between private individuals, and involved no state action. Therefore, Marcus argued that court enforcement of these private covenants constituted state action, which then invoked the equal protection clause of the 14th Amendment.

Finally, Marcus disputed the claim that plaintiffs suffered damages or irreparable injury. He argued that there was no evidence of devaluation or lost property value, and presented evidence that showed that most homes in the neighborhood had retained a value of $3,000 or more. (Alex Bernal paid $4,250 for his house.)

Judgment for the Defense

After the four-day trial, Judge Ross entered judgment for the Bernals on each of the defense arguments, and awarded the Bernals costs in the amount of $41.50. The plaintiffs filed a motion to set aside and vacate the judgment citing several cases from California and around the country all of which had concluded that racial covenants did not violate any constitutional rights, nor any public policy.

Nevertheless, Judge Ross remained steadfast in his ruling. As proof that he "carefully reviewed all of the cases cited and studied the matter involved in this case," Judge Ross expressly acknowledged that court enforcement of a racial restriction was unique in terms of state action. He then concluded, almost as if somewhat insecure in his state action finding, that "[t]he matter of public policy, however, is the main basis of the court's decision."

An Outpouring of National Support

Locally, the headlines were dramatic: "Race Housing Bars Are Falling!"; "Santa Ana Judge Says Restrictions No Good!"; "Mexican Land Rights Upheld." But verdict in favor of the Bernals also received national attention. The Sept. 6, 1943 edition of Time Magazine included an article on the decision -- "California-Across the Tracks" -- discussing the case and how Alex Bernal literally and successfully "had moved across the [train] tracks to stay." The article also featured a photograph of Alex and Esther Bernal with their two young daughters sitting on their laps.

But the greatest outpouring of support came in the form of several letters Alex received from across America, including from people serving in or veterans of the U.S. Armed Forces.

"I write as a fellow American whose ancestors came to this country a long time ago from England, Scotland and Ireland, to express my greetings and satisfaction in the justice and outcome of your contest with prejudice and un-American attitudes.

"We hope that the future experiences in community relationships that you and your family come to know will be happier and more truly representative of the real heart of our great democracy."

* * *

"If enough cases like yours are brought to light for all America to ponder, racial prejudice in time may reach a vanishing point."

* * *

"Thank God for the decision of Judge Albert Ross! *** If America is all her traditions imply, she is the land of opportunity where we should be glad to see family units moving into good homes. *** I am proud that my husband, a lieutenant, is fighting for this country -- for the rights of people like you."

* * *

"Congratulations to you in properly contesting and defending your rights as an American. It is your kind that ... has made America great."

More Cases Followed

The Doss case seemed to bring to light a groundswell of opposition to racial covenants. In addition to the support the Bernals family received, other cases on similar issues were starting to work their way through the courts.

One year after Doss, the California Supreme Court issued a unanimous decision reversing a trial court order enjoining an African-American family from living in an area of Pasadena where racial covenants allowed only Caucasian residents. Fairchild v. Raines, 24 Cal. 2d 818 (1944). Although the reversal was based on inadequate trial court findings, not on the grounds that the racial covenant violated either public policy or equal protection, then Associate Justice Roger J. Traynor wrote a separate concurring opinion remanding for consideration of public policy, including "whether enforcement [of the racial covenant] would be contrary to the public interest in the use of land in urban communities where people are concentrated in limited areas."

Then, in 1945, Superior Court Judge Thurmond Clarke addressed the legality of a 1902 racially restrictive covenant prohibiting "non-Caucasians" from owning property in West Adam Heights, an affluent neighborhood south of downtown Los Angeles known as Sugar Hill. Anderson v. Auseth (the "Sugar Hill" case). In finding that the racial covenant violated equal protection, Judge Clarke concluded: "It is time that members of the Negro race are accorded, without reservations or evasions, the full rights guaranteed them under the 14th Amendment to the Federal Constitution. Judges have been avoiding the real issue too long."

And it was not long thereafter that the U.S. Supreme Court held that racial covenants violated the 14th Amendment equal protection clause. Shelley v. Kraemer, 334 U.S 1 (1948). The vote in Shelley was 6-0 with Chief Justice Fred M. Vinson writing for the majority. Although there is no report regarding why three Justices did not participate, it was assumed that each of them owned property burdened by a racial covenant.

The Bernal Family

The lawsuit took a toll on the Bernal family. Despite his courage and ultimate success, Alex did not often discuss the case. He kept the Time Magazine article, the letters he received, other related documents and photographs in a box in his garage (they were not discovered until after he died in 1999). Within two years of the lawsuit, his wife, Esther, passed away. She never had a chance to fully enjoy the house she and her husband worked so hard to purchase and keep.

But Alex never gave up on his dreams. He remarried and continued to live his life in the same manner he was raised by his parents. And Alex raised his own children the same way. According to Alex's son, Joe Bernal, his father "raised us to be respectful of others, to study and work hard, to go to church every week, and to say 'Yes, sir,' and 'No, ma'am'."

Alex and his family remained close with his attorney, David Marcus. Marcus often visited the Bernal family, and Alex kept Marcus' business card with him. He never hesitated to refer friends to Marcus in time of need. Alex's daughter, Theresa, later fondly remembered Marcus as "a man who fought for Mexicans."

Although other cases, like the Sugar Hill case and Shelley v. Kraemer, may have received more attention, Doss v. Bernal was the first to hold that racially restrictive covenants violated equal protection. And it all started with one man's courageous pursuit of the American Dream in Orange County, California.


Ben Armistead

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