Legal History

Appeals court won't use word 'grandfathering' because of racist origins

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The Massachusetts Appeals Court has taken a stand against the word “grandfathering” in a footnote highlighting its racist origins.

Ruling in a zoning dispute, the court said a structure built before the enactment of zoning regulations had a certain level of protection. Such protection is known as “grandfathering,” but the appeals court said it wouldn’t use the word “because we acknowledge that it has racist origins.”

The phrase “grandfather clause” originally referred to laws adopted by some states after the Civil War to create barriers to voting by African Americans, wrote Justice James Milkey in footnote 11 to the Aug. 3 opinion.

The laws required African American voters to pass literacy tests or meet other significant qualifications while exempting white men who were descendants of men who were eligible to vote before 1867.

Law360, the Associated Press and the New York Times had coverage of the footnote. NPR wrote about the origins of “grandfathered” in this 2013 article.

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