2021: Summer The Promised Land

In September, Thomas Mitchell ’87 got a call from a Chicago number he didn’t recognize. Spam, surely; he ignored it. The next day, an email popped up from the MacArthur Foundation—with a request for his unpaid time. “It said something like, ‘Professor Mitchell, we are very interested in having you serve on a task force that will deal with analysis of racial equity of the grant the foundation gives, and we would like to talk to you immediately,’” Mitchell recalls. He read it and heaved an inward sigh.

As a professor of law at Texas A&M University, Mitchell gets requests like these all the time. He has focused much of his career on an antiquated piece of real estate law that has been, among other things, a major driver of Black land loss in the United States. “Among property law professors, studying the property problems of disadvantaged African Americans in the South was considered at best a marginal, fringe, niche area,” he says. “And since few people were studying it, I became the recognized national expert.” That means Mitchell has had to become adept at saying no when people come knocking at his door.

Still, this was the MacArthur Foundation. “So I agreed to talk to them, but I’d rehearsed what I was going to say.” When he returned the call, he didn’t make it five seconds into his prepared remarks. The woman on the phone said the request was a ploy to get him to call. She asked him if he was seated—and then she told him. “I assumed they had a portfolio of awards, and I’d won some lesser fellowship,” he admits. “But she said, ‘No, we only have one award.’” That would be, of course, the MacArthur Fellowship—colloquially known as the genius grant.

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Mitchell’s work may not sound like the kind of project that wins genius grants. For more than 40 years these no-strings-attached, $625,000 awards have been given to Americans in almost every field you can think of. Out of more than a thousand MacArthur Fellows, only eight have been legal scholars—but Mitchell’s work is different. Back to that antiquated real estate law: It’s called the law of partition, and it’s something we Americans inherited from our British forebears. “It deals with tenancy-in-common ownership, which is the most prevalent form of common real property ownership in the United States,” Mitchell explains. Common real property ownership is when a group of people or companies all own a piece of property together but no single person or company owns a particular part of it.

Tenancy-in-common is the most prevalent form of this real property ownership. The law of partition, meanwhile, governs how people exit that ownership—it’s a law that decrees how those joint owners can part ways. If owners can’t come to a consensual agreement, they can file a partition action. One of the most common partition actions would be a physical division of the property, and an allocation of the parcels that would result from that division. The other most common partition action would be the forced sale of the property, with the proceeds then distributed to the common owners.

“Historically, a forced sale was considered a radical remedy, one reserved for unusual circumstances,” Mitchell says. But starting a few decades ago this began to change. “The overwhelming number of state statutes had a preference for physical division, but it was a thin preference. A typical statute will say a partition action is preferred unless it will ‘result in great prejudice’ to the common owners.”

OK, but what exactly does “great prejudice” mean? Turns out there’s no single definition. “Into that vacuum, a bunch of judges came up with their own test—a test that said, in deciding whether great prejudice exists, the only relevant factors are economic,” says Mitchell. “They’d say if the property maintained as a whole has what you call ‘economies of scale’—that means it’s worth more as a whole than the aggregated values of the parcels that might result from division—they would then order it sold, because theoretically that would maximize wealth.”

People said, ‘You might get one or two states, but you will have total failure in the South.’”

Mitchell refers to this as the “economics-only test,” and it’s fine as far as it goes, but many people value their property for noneconomic reasons. “A lot of families say, ‘Well, this property has been in our family for generations.’ In the case of African Americans, some of it was acquired at the end of the Civil War, and it’s invested with family-heritage value,” Mitchell says. “Some properties have historic value or other cultural value. And for many of these families, a forced sale would sometimes render family members homeless.”

When judges appraise these properties using an economics-only test, they don’t have to quantify any of those other factors, and might assign it zero value. “As a result, it had the impact of making the forced sale the de facto preference as opposed to physical division. This reversed the historical preference.”

If you’re a real estate developer this works out just fine. It means that if you can convince one of dozens of co-tenants to sell their share in a property, you can force that sale, no matter how many other co-tenants oppose it, and often end up getting a bargain. But if you’re one of those other co-tenants—and especially if you’re already at a systemic, structural disadvantage, for any number of social reasons—the law of partition makes a bad situation even worse.

Take, for example, Hilton Head Island in South Carolina. In the early 1950s a highway was built to connect the island to the mainland, and it suddenly became highly desirable property. At that time the majority of landowners on Hilton Head Island were Black, and in many cases these properties had been passed down for generations without wills; most of these families did not have access to lawyers. With each generation the number of people with an interest in each property ballooned—heirs could number in the hundreds—but to force a sale, all that a real estate developer had to do was find a single heir who wished to sell. “The economics-only test is inappropriate not only because it says your family or heritage has no value, but even on its own terms, the economic benefits are mythical,” Mitchell says. “A forced sale produces a price well below market, so ultimately the family not only loses their property but gets pennies on the dollar.”

The law of partition has also been a tool of gentrification in hot urban neighborhoods. In places such as New York City and Washington, D.C., a real estate speculator needs only to pick out one co-tenant—often someone who no longer even lives in that area—in order to gain access to a newly desirable address. These are often high-equity properties, too. “That’s because a lot of African American families acquired ownership during redlining,” Mitchell says, referring to the practices that restricted Black people from acquiring bank loans in certain neighborhoods. “So they had to buy in cash. These properties in Harlem or Brooklyn or Queens had been paid off. Now values were through the roof, and speculators would buy out one family member and go to the others and say, basically, ‘We have you over a barrel.’”

Who loses? Targets are typically poor people who face race-based discrimination. They also tend to have low rates of estate planning. They often lack access to affordable legal services. And finally, they are often a privileged minority within a disadvantaged group.

“African Americans who became landowners at the end of the Civil War, or in urban contexts, New York City for example—those were privileged groups,” Mitchell explains. “Those subsets overcame tremendous hurdles, because becoming property owners was a direct threat to white supremacy. When you look at the history of lynching, it is traditionally associated with African American men who had interactions with white women, but the majority of those lynched were actually African American property owners.”

The properties these groups owned were often not considered prime real estate—until suddenly they were, as in the Hilton Head example. “You can think of that in a rural context, where suburban sprawl takes over farmlands, or in an urban context, in gentrifying neighborhoods where values become superheated, and suddenly these communities have a bullseye on their back.”

Mitchell was studying all this from his academic post, a position he’d originally hesitated to take. “I didn’t come out of the womb wanting to be a law professor,” he says. “I liked my professors in law school, but I saw them as living in the ivory tower. I had to be convinced that pursuing an academic route could be consistent with my goals to promote social and racial justice.” In the end, Mitchell made his position—then professor of law at the University of Wisconsin—consistent with his goals. Rather than simply researching the problems of the law of partition, Mitchell began putting together strategies to fix them.

The path forward, as Mitchell saw it, was hidden in failed reform attempts from decades ago. Everyone knew there was a problem; some had already tried to solve it. “There had been attempts in several Southern states in the 1970s to reform partition law abuse, and all had failed.” The reason, in Mitchell’s view, was that the people impacted lacked political and economic power. Mitchell figured he’d play the long game. “I was thinking a generation from now. I thought I’d continue to produce high-level scholarship that illuminated the problem in a clear and detailed way and keep proposing law reforms, and maybe someday, when I was a retired professor, at that point I’d roll up my sleeves to get involved on the ground and produce some small results—something that could lay foundation for those after me.”

Then a few important dominoes fell. First, the Associated Press did a major story on Black land loss. Published in 2001, it interviewed Mitchell extensively—and got the attention of the American Bar Association, which asked him to serve on a newly formed property preservation task force. “After 18 months of work, we came up with several solutions that we thought would advance the law,” Mitchell says. “The most ambitious was to write a proposal—a Uniform Partition of Heirs Property Act—to submit to the Uniform Law Commission.”

The Uniform Law Commission is the organization in the United States with the longest history of developing model statutes. For well over a century, the ULC has put out 425 Uniform Law Acts, which state legislatures can then choose to adopt. Of the dozens of proposals the ULC receives each year, it accepts only a handful. “We knew the numerical chance was very slim. We also knew that the ULC has done comparatively little in terms of creating models that address social or racial injustice,” Mitchell says. “But we still felt obligated to do it. Had to try to hit the lottery.”

In February 2007 the task force learned they’d won that lottery: the ULC accepted their proposal—and asked Mitchell to step up as the principal drafter of the act. “I would have fallen off my chair if I’d known they’d had 440 people serve in that role but I was only the second African American, and one of maybe five people of color,” he says. “Which became obvious during the drafting process. Other people fell off their chairs when they saw me.”

Mitchell’s status as a national expert allowed him to develop connections with grassroots organizations, and he involved them in drafting the property act. The result was a tightly crafted legal statute that called for new rights for tenants-in-common, including a series of simple due-process protections: notice, appraisal, right of first refusal and—in the event a forced sale is still required—a commercially reasonable, court-supervised sale that would compensate the owners fairly. “We ended up getting a statute,” Mitchell says, “that represents the most systemic, substantial effort to reform this area of law, ever.”

Now came the real test. In many states, the law of partition had not been touched in 125 years. Even with a shiny new statute all ready to go, there was deep skepticism that states would adopt it. “We were trying to address a problem of people who lack political and economic capital,” Mitchell points out. There was also the assumption that racism would render few legislatures sympathetic. “Our project was saddled with the promotion of racial and social justice, which is wonderful in theory but fatal in fact. People said, ‘You might get one or two states, but you will have total failure in the South.’”

Well, people say a lot of things. To date, 17 U.S. states plus the U.S. Virgin Islands have passed the Uniform Partition of Heirs Property Act into law, representing every region of the country. Mitchell has continued to play a pivotal role, lobbying lawmakers directly, reviewing bills prior to negotiation and even testifying before state legislatures. It’s unusual for a member of the drafting committee to stay so involved, “but without my participation it would have been less successful,” Mitchell says. “So the minute we finished drafting, I began working with supporters of our bill, helping them with technical matters and messaging.” Mitchell has repeatedly stepped in to convince disparate grassroots groups—public interest organizations, community development coalitions, environmental advocates and legal aid teams—to work together toward this common goal. “Essentially, I have combined a bottom-up and a top-down approach,” he says.

And guess where they’ve been the most successful? “Eight of the 17 states are in the South—a number in the Deep South. One of the three states we got in 2020 was Mississippi, which actually shocked me. We’d failed twice there already, but last year it got overwhelmingly approved.”

How did it happen? Mitchell learned the power of reframing the act to show how it benefits everyone. “I realized, to even survive the drafting process, I had to change the narrative and make it more universal,” he says. “So even though my early scholarship was in the Black community, I hammered home that this is an act that promotes private property rights and family real estate wealth. When you take the focus off race, you potentially have a wider group of stakeholders who can buy in.”

That reframing really paid off in 2018, when a change to the federal farm bill resulted in incentives to states to enact the law. “Farmers would benefit more in those states than in those that didn’t enact the law,” Mitchell says. “We used that farm provision as a key that has opened up doors that had been totally barred.” In 2020, Florida, Virginia and Mississippi adopted the Uniform Partition of Heirs Property Act. “In each of those states we had faced stiff resistance. But we had a new, incredibly powerful ally, and that was the state farm bureau, an agriculture powerhouse. Once we had them on our side, the result was almost predetermined.”

It is an ironic twist that in order to promote racial justice, Mitchell would find himself de-emphasizing race. But of course, he understands the pragmatics of living as a person of color in the United States. He learned something about this at Amherst.

Back when he was applying to colleges, many schools recruited Mitchell for their football teams—he’d been a star athlete in high school. But not Amherst. “I assumed that Amherst was more interested in me as a whole student,” he recalls. He was happy to dive into his studies, declaring a major in English (and eventually earning the Craig Prize) as well as joining the football team. But over time, he learned that some students had indeed been recruited for the team. It so happened they were white. Meanwhile, players of color were often walk-ons who warmed the benches, and when they did play, Mitchell says, they endured racist comments from teammates. When Mitchell complained about this, he was told he was oversensitive and, essentially, that nothing could be done.

In each state we faced stiff resistance. But we had a new, incredibly powerful ally.”

Then he learned that an assessment of the minority experience at Amherst was taking place at the next board of trustees meeting. He decided to crash it. “I owned one suit and one tie. I threw them on and showed up,” he says—and was surprised to see no other students of color, given that the discussion was about students of color. “At the end, they turned to me and said, ‘What’s your perspective?’”

Mitchell politely described to the trustees his experiences of racism in the athletics department and commented on the lack of commitment to hiring professors of color. “When I told my story, one trustee gave me his personal phone number.” A week later, in what can now be seen as a hint of things to come, Mitchell found himself invited to join a task force to assess racism in the athletics department. “I was quite serious about this task force. The president authorized me to have access to data about recruiting practices and patterns, and by the end we had a report that documented the systemic racism.”

In a sense, then, this experience at Amherst, while unwelcome, also raised his racial consciousness and led to developments no one might have imagined. “We saw a significant change in an athletic department that people had told me couldn’t change. It didn’t cure everything, but it was significant for that time. It gave me the confidence that other issues perceived to be beyond changing can in fact be changed. In the back of my mind, I’m like, ‘Well, look at what happened at Amherst,’” he says now. “If you don’t try, nothing will change. And you might have a greater chance than most people believe.”

Success has a way of building on itself. A few months after winning the genius grant, Mitchell also won the prestigious Howard University Alumni Award for Distinguished Postgraduate Achievement, an honor also bestowed upon the likes of Thurgood Marshall and Kamala Harris. (Mitchell received his law degree from Howard.) Mitchell is now designing a legal center at Texas A&M that will address property issues affecting socially and economically disadvantaged groups—rural farmers and urban dwellers alike. “The communities implicated are disproportionately communities of color, though poor white communities are implicated as well,” Mitchell says. He envisions opportunities for experiential learning, with a focus on direct legal services to clients. He expects the center to be up and running by next year and is in discussions with other groups and foundations that are looking to support it.

It’s a far cry from the reception Mitchell used to get. Immediately out of law school, he spent a couple years at a white-shoe law firm (“with the whitest shoes of all”) before moving on. When a firm partner tried to woo him back, Mitchell explained that he intended to research Black land loss. “Thomas, what you’ve just described is what we refer to as career suicide,” he says the partner replied. “Go lie on a beach for a few weeks and then come back and make an appropriate career decision.” Mitchell can’t blame the partner for saying that; no one could have predicted this level of success, least of all Mitchell himself.

“I’m usually in control of my emotions, but learning I’d been awarded the genius grant was so staggering that I actually shed tears,” he says. “A powerful wave washed over me. When I went to Amherst, my parents were in a bad financial situation, and it was often very hard to make it through. The fact that I even graduated was unlikely. I thought of all the hard work and persistence—just the incredible unlikelihood of all this. My ancestors were slaves and sharecroppers. It would never have been remotely in their imaginations that their descendant would reach this moment.”

Naomi Shulman’s work has appeared widely, including on New England Public Radio and in The New York Times.

Photographs by Charles Ford