Suburbs Under Siege
Race, Space, and Audacious Judges
By Charles M. Haar
PRINCETON UNIVERSITY PRESS Copyright © 1996 Princeton University Press
All rights reserved.
Breaking New Ground: The Role of the Courts in Social Change
In April 1974, Ethel Lawrence launched a lawsuit destined to dominate the suburban agenda of the country for the next two decades. The forty-one-year-old homemaker, a part-time practical nurse, could not find a house she could afford in her hometown of Mount Laurel, New Jersey. Heeding her minister's advice, she and her daughter, Thomasene, invoked the help of young legal service attorneys in their search for an affordable home. This simple action would become a flashpoint in the nationwide debate over exclusionary zoning and the destiny of American metropolitan areas. One immediate consequence was that the New Jersey Supreme Court undertook the boldest and most innovative judicial intervention ever to countermand exclusionary zoning: in the landmark Mount Laurel trilogy of cases, the court identified and enunciated a constitutional right for all people—rich or poor, black or white—to live in the suburbs. It went to extraordinary lengths to break down the legal fences raised against affordable housing in the suburbs. Mount Laurel I also represented an attack against the skewed spatial distribution—by race, ethnicity, and income—of metropolitan populations. It set the tone for all future legal encounters with discriminatory local land-use regulatory barriers.
The Mount Laurel cases constitute a historic judicial intervention. The political system had malfunctioned: suburban communities were operating on behalf of their neighborhoods—providing open spaces, preserving home values, keeping property taxes down—at the expense of the larger society. But if law was the willing handmaiden of malignant intention, it could and would also be its palliative. If the legislative and executive branches would not provide a constitutionally mandated fairer society, then the state judiciary would. No other public body was willing to secure the constitutional rights of all individuals to the benefits of an open and mobile society. No other government institution in the prevailing political and social climate was motivated to represent the interests of the metropolitan area as a whole. Yet, surprisingly, the Mount Laurel decisions have barely entered the mainstream of discussion, and few have sought to extract their deeper meaning, despite the intense immediate controversies that flared up around them.
The Walled Suburbs
Ancient themes underlie the long struggle over how to allocate regional responsibility for low- and moderate-income housing. A parcel of land for oneself, free of any tenurial restraints, is the promise the United States has held out to its citizens and all newcomers ever since the American Revolution. From the dwelling of the colonial era to the homestead of the post–Civil War era to the home in surburbia in the modern era, this yearning for a place of one's own has endured. Access to land, the capacity to appropriate space and thereby gain a sense of belonging, an almost mythical attachment to a personal stake in the soil—these sentiments persist even in the age of the electronic superhighway. Crucial to understanding the exclusion of minorities from this commonly shared goal and the ensuing struggle over suburban turf is an awareness of the new urban form that has emerged in the past few decades: the fragmentation and stratification of metropolitan areas into inner cities and proliferating suburbs.
The United States, by all accounts, is the first and premier suburban nation. Beginning in earnest after World War II, a great migration transformed the American metropolis. This exodus featured a dizzying rush from the cities to the suburbs: during the postwar baby boom, the net population gain by the suburbs was thirty million people—more than double that of the rest of the country; while central city populations increased by 14 percent in that period, suburban areas increased by fully 79 percent. The 1990 census officially acknowledged this metamorphosis: 46 percent of the total U.S. population now lives in the suburbs and but 31.3 percent in the cities.
Suburbanization, as a distinctive aspect of urbanization, recast not only the center of gravity of the population but also patterns of investment and technology: the suburb is now the country's broadest new frontier. For example, in 1970 central cities contained 71 percent of the nation's office space; ten years later more than half the office space was located in suburban areas. National and state elections are now decided by the choices of suburbanites. Increasingly, services once considered truly characteristic of the city—hospitals, cultural centers, financial facilities, for instance—are located in the suburban belt.
It is in suburban settings that the American sense of success—both symbolic and physical—is made most manifest, through the metaphor of home ownership. And minorities are substantially excluded. Indeed, for partisans of democracy, the most disturbing characteristic of the metropolitan scene is surely the high degree of racial and ethnic separation in the new spatial pattern. The nearly complete residential separation of the races is widespread; at every income range, minorities are far less likely than their white counterparts to live in suburbs. Furthermore, when minorities manage to reach suburbia, they tend to cluster in racial enclaves, continuing the separatist tendencies of the older urban ares.
The spatial polarization of poor and affluent is equally striking: in the hundred largest central cities, the percentage of the population living in census tracts with poverty rates greater than 40 percent more than doubled between 1970 and 1990. The old central cities were hollowed out as white upper-income households moved to the detached, single-family homes in the suburbs. Two worlds loom up—residentially segregated minority areas with poor-quality schools, inadequate public facilities, few job opportunities, and high crime and delinquency rates, and a suburban sphere whose housing, infrastructure, densities, and ways of life are more expensive and expansive, safer, and more conducive to sound individual development. In Benjamin Disraeli's words describing another country and another century, this gulf divides the citizens of metropolitan areas "as if they were dwellers in different zones, or inhabitants of different planets."
Contrary to the assertions of those who attribute segregation to economic and market forces or to long-term structural trends in the decentralization of population and employment, neither affordability nor preference of individual households explains the high levels of segregation. Economists, like other social science investigators, maintain that very little of the serious underrepresentation of African-American households in suburban areas is explained by low income or by other socioeconomic characteristics alone. Instead, racial discrimination in the operation of housing markets appears to be the most powerful factor. Interpreting the essential conditions of modern urban life as dangerous interdependency, many Americans have moved to the suburbs to find a safer and more congenial environment. By choosing to insulate themselves from the worrisome quandaries posed by problems spanning unemployment, dilapidated housing, teenage pregnancy, and crime, they have created a division between the black central city and the predominantly white suburbs, a geographic partition that has undermined efforts to find a common solution to the most volatile domestic problems of the day.
The distorting and baleful effects of housing discrimination are as well documented as they are painful to their victims. Segregation defeats free operation of the real estate market and prevents minority families from competing equally in their search for housing. Since most American individual wealth is positioned in residential real estate, enforced physical segregation blocks minorities from what has become a major route to wealth by denying them the vehicle for capital accumulation. Separation facilitates redlining, a major barrier to access to mortgage and credit facilities. Forced segregation condemns minorities to localities with inferior facilities and services, creating a de facto apartheid that few Americans would willingly endorse or deliberately create.
Isolating neighborhoods by race and class contributes to the desperate condition of inner-city schools and flouts efforts at equalization of educational opportunity. The partition of metropolitan areas—with bands of wealth ringing poor communities—has converted many public schools into institutions overwhelmed by poverty-related problems. Lack of integration in housing also necessitates the hated move to school busing. The years of futile efforts expended on improving the American school system have finally alerted practitioners and scholars to the significance of the central city–suburban schism, and racial and economic housing segregation is now the major theme sounded in the latest wave of lawsuits seeking to integrate the inner city's public schools with those of their suburban neighbors.
The higher rates of unemployment and the lower incomes of African-Americans and Hispanic-Americans may be traced to the spatial mismatch of home and work in the metropolitan area. Unable to move to neighborhoods with the greatest opportunities for economic mobility, minorities must incur high commuting costs to reach the jobs increasingly located outside the central city. More than half of these jobs, especially in the new outer suburbs, are inaccessible by public transportation. And the flow of information regarding job openings is a trickle: enforced segregation isolates blacks, whites, and Hispanics, inhibiting the personal connections and friendships that can lead to employment.
The economic geography of whole regions has permanently shifted as the cities no longer function as employment hubs; the bulk of new office construction, service job creation, and retailing expansion has dispersed to suburban settlements. From 1980 to 1986, for example, the total job growth for the inner city of Los Angeles was but 13,000 as against 279,000 in its suburbs; Philadelphia gained 25,000 jobs, while its suburbs gained 205,000; Washington, D.C. added 29,000 jobs compared to 301,000 in its suburbs; Chicago lost 40,000 jobs against a gain of 212,000 by its suburbs; Detroit shared a similar fate, losing 57,000 jobs, while jobs in its suburbs increased by 120,000. The largest share of jobs lost in each city were manufacturing, clerical, and blue-collar employment, the traditional entry level for the urban working class.
These employment statistics and others like them were available to the Mount Laurel judges. Moreover, the courts' jurisdiction had suffered similar losses: in New Jersey, the adjoining townships of Edison, Franklin, and Piscataway support as many jobs—115,129—as Newark, which has only half the total number of jobs it had forty years ago. Central Newark lost nearly 80,000 jobs between 1970 and 1988, and the area within two miles of the central city lost 40,000 more; areas six miles or more from downtown Newark, however, gained jobs steadily, with the greatest increases recorded in areas about sixteen miles out.
The destructive and pervasive consequences of segregation, both for excluded minorities and for the society at large, call for bridges over the physical divides in metropolitan areas. Housing discrimination is an especially urgent social problem not only in and of itself but also because it is an underlying cause of other pressing ills in American society. Concentrated poverty in the inner city creates social pathologies different in magnitude and in kind from those associated with individual low incomes, and the problems of crime, increased dropout rates for high school students, drug addiction, and other asocial behavioral patterns in the inner cities are self-perpetuating. Thus the more promising urban policies are not incentives for housing or employment initiatives for central city neighborhoods but those fostering the redistribution of minority households into the suburban areas. Deconcentration—facilitating the movement of poor families from inner cities to suburbs—becomes an urgent social strategy for breaking the grip of concentrated poverty. Permanent exclusion from mainstream society, graphically visible in the structural configuration of metropolitan areas, bears with it dire consequences for all: deprivation for the excluded and the grimness of a fortress mentality for the excluders.
The Activist Court
Ironically, the law has been a major player in the pattern of segregation and housing discrimination. Indeed, to a large degree, it makes exclusionary conduct possible. The state confers on localities the sovereign power to regulate land use as they see fit. And although local geographical boundaries are increasingly artificial as today's metropolis spreads out across counties and districts, suburbs, as separate legal municipal corporations, deploy exclusionary zoning in its many forms to keep out "undesirables"—both uses and people. Law has become a surrogate for physical walls. Minimum lot and room sizes, setback rules, and discretionary procedures for multifamily developments—familiar argot to the zoning specialist—become dependable weapons in the exclusionary zoning arsenal. Providing relatively few dwelling units affordable to low-income people and using local land-use regulatory ordinances to raise the cost of other housing beyond their reach keeps up property values and produces villages that conform to the images of their existing residents.
Until the 1940s, there was legal acceptance of private exclusion through restrictive covenants; even the mortgages guaranteed by the Federal Housing Administration contained racial restrictions, and the administration's underwriting manual advocated their use. Finally, after years of complicated and difficult litigation, the courts ruled such restrictions unconstitutional. But institutional discrimination through pervasive local systems of exclusionary land-use ordinances went unchallenged. Moreover, as inherited policies, they allowed individuals to deny responsibility for their actions.
Outlawing local restrictive land-use controls is the latest skirmish in the century-long battle to let the market operate freely in the allocation of metropolitan land. Implicit in the Mount Laurel decisions is a ruling that zoning bylaws prevent minorities from gaining a foothold in the locality in the same way that private restrictive deeds did; hence exclusionary zoning, and the land-use patterns it produces, should be similarly outlawed. The court could not disregard the mass of physical evidence illustrating the inequity between the separate worlds of inner city and outer suburb. Disparity in living conditions, following the lines of the new urban spatial patterns, was too obvious a daily reality, too glaring a manifestation of prejudice, to be shunted aside.
What makes the Mount Laurel dilemma so poignant is that the court's crafting of one principle—the ideal of equality of opportunity regardless of race, ethnicity, or income—clashed with another highly valued article of faith: people's deeply rooted belief in their right to defend bastions against would-be invaders. The suburban enclave is a continuation of the old idea—strong in American tradition—of the preeminence of the local community. Home rule, grass roots, the right of association, and neighborhood invincibility are basic building blocks of local government arrangements. The Mount Laurel Doctrine, with its emphasis on the fairness of equal sharing of the burdens of metropolitan existence and equal access to the suburban lifestyle, challenges all these tenets. Not surprisingly, then, the institutional reordering undertaken by the New Jersey courts thrust them into confrontation with the state legislature and local municipalities. The political dialogue weighing hopes against fears—a society's conversation with itself—continues to this day.
The Mount Laurel cases and the exclusionary zoning debate in general must be considered in the context of the broader trend to use the judicial system to redress national wrongs through litigation. Over the past two decades, courts have been drawn more and more into the reorganization of public institutions that are failing in their designated missions. When judges must step in to repair abuse of mandate and systemic flouting of legal norms—whether in relation to segregated schools, overcrowded jails, or environmentally degraded rivers—their expanded role arouses intense opposition by the majority. Complaints against judges (the imperial judiciary) as agents of social change are many and, at times, seemingly overwhelming: inadequate judicial resources; the courts' innate incapacity to initiate, maintain, and supervise long-range plans; adverse (albeit unanticipated) impacts on the operations of challenged institutions; and most seriously, subversion of the separation of powers. In the end, the indictment runs, by expanding its role the judiciary undermines the very legitimacy of its own authority by intruding in what are deemed inherently political and for that reason volatile affairs. (Continues...)
Excerpted from Suburbs Under Siege by Charles M. Haar. Copyright © 1996 Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
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