Courting Racial Justice

Our Town: Race, Housing, and the Soul of Suburbia. By David L. Kirp, John P. Dwyer and Larry Rosenthal. Illustrated. New Brunswick, N.J.: Rutgers University Press, 1996. 267 pp.

Suburbs Under Siege. By Charles M. Haar. Illustrated. Princeton, N.J.: Princeton University Press, 1996. 266 pp.

Almost two-thirds of American blacks live on blocks that are 60 percent or more black, and 30 percent live in neighborhoods that are 90 percent or more black. At least two out of three white Americans live in essentially all-white neighborhoods. In most major American cities, more than 70 percent of the population would have to move to achieve full integration.

The persistence of residential segregation provides perhaps the clearest reflection of the unresolved American dilemma of race. And minorities experience discrimination regardless of incomes. For example, poor blacks but not poor whites tend to live in ghettoes or barrios with high concentrations of the poor. Middle class blacks tend to live in mostly black neighborhoods. Even when they move to the suburbs, they find themselves living in segregated areas. Only a fraction of this can be attributed to self-segregation.

Faced with such obstacles, activists have often resorted to litigation to work towards their goal of residential integration. One of the key cases in this pursuit involved a group of low income black residents in Mt. Laurel, New Jersey, a fast-growing suburb 10 miles from Camden, one of the nation’s poorest cities. In 1970, these residents successfully sued the township for its rejection of rezoning to provide affordable rental housing for low and moderate income residents.

Two recent books about their efforts and legacy demonstrate the limits and opportunities of using the courts as a tool for social reform. Our Town is a moving and dramatic account of the events featuring the struggle by several resourceful and tenacious lawyers, judges, and local black leaders to integrate the suburbs. The authors feature Ethel Lawrence, who lent her name to the case and faithfully stayed the course for over 20 years, and public interest attorneys Peter O’Connor and Carl Biscaier, who combined a creative commitment to justice with the expertise of real estate entrepreneurs. Suburbs Under Siege reads more like a lawyer’s brief, arguing forcefully for courts as the vehicle to achieve economic and social equality. Only the courts, according to Harvard law professor Haar, can overcome the prejudices of the nation’s white majority toward poor and black Americans.

Both books describe how housing activists and their lawyers relied almost exclusively on the New Jersey Supreme Court as their strategy to build low income housing for poor blacks in the suburbs. Both do a good job of describing the litigation process, the personalities, the legal strategies, and the modest outcome of the Mt. Laurel cases. But did the litigation strategy work? Haar says it did. Kirp, Dwyer, and Rosenthal are not so sure.

The Mt. Laurel story begins with a group of low-income black residents (some of whom were ancestors of free blacks who had settled in Mt. Laurel in colonial times) who wanted to use government funds to replace a slum, where people still lived in converted chicken coops, with 36-units of modestly priced garden apartments. Since the whole township was zoned only for large single-family houses, the group needed a variance. Town officials refused.

Repeatedly frustrated in their efforts to secure better quality housing, this group sued the township in 1970. Four years later, the New Jersey Supreme Court struck down the use of zoning to exclude low-income housing. It ruled that it was illegal for towns to use their zoning powers in a way that inflated prices of housing and thus excluded poor and black people. But Mt. Laurel and virtually all the other New Jersey suburbs evaded the court’s ruling, which led to the Supreme Court ruling on the case in 1983. In this 120-page ruling, Chief Justice Robert Wilentz wrote that the first decision “did not result in housing, but in paper, process, witnesses, trials, and appeals.” Wilentz made clear that “This court is more firmly committed to the original Mt. Laurel doctrine than ever, and we are determined … to make it work.”

As Suburbs Under Siege spells out (in the kind of detail only a zoning lawyer could love), the court prescribed specific methods of rezoning towns and getting low-income housing built. “The Supreme Court had concluded that only by a show of force could it guarantee fulfillment of the constitutional limitations on the exercise of local exclusionary zoning ordinances,” Haar writes. Beyond outlawing exclusionary zoning, Wilentz’s brilliantly crafted decision mandated construction of affordable housing in suburbs that lacked their “fair share” of low-income people.

The court put teeth in its rulings through the “builder’s remedy” or “inclusionary zoning.” In municipalities that failed to meet their “fair share” obligation, inclusionary zoning allowed builders willing to provide some low-income housing to move ahead with their development plans – no matter what objections a town might raise. Builders ready to construct low-income housing could now override local opposition.

But once it became clear the Mt. Laurel rulings were really allowing more low-income housing development in the suburbs, political opportunists seized the chance to inflame racial fears. Some New Jersey politicians imitated Alabama Gov. George Wallace’s defiant stand against school integration in the 1960s. For example, Monroe Township Mayor Peter P. Garibaldi, who was also a state senator, said he would go to jail before he would comply with a court order to rezone for low and moderate-income housing. Then-Governor Tom Kean called the court’s decision “communistic.” Politicians complained that their constituents worked hard to get their suburban homes and now the government was going to destroy their communities and property values by encouraging – even requiring – low-income black people to move there. (Of course, they ignored the government tax breaks, insured mortgage loans, and grants for sewers, roads and highways that subsidized white suburban homeowners).

In response to the growing resistance, the state legislature came up with a plan that undercut the Supreme Court’s decision by reducing the number of affordable housing units needed and providing ample loopholes for municipalities and only mild penalties on those that failed to meet their obligations. For example, municipalities could reduce their “fair share” obligations by building housing for the elderly, and through “regional contribution agreements,” suburbs could pay cities to take some of their obligations off their hands.

The Mt. Laurel decisions have brought some positive results. Today, thanks to these rulings, every town’s master plan has a section that focuses on housing needs, and every town has to provide affordable housing. Mt. Laurel’s planning board recently approved, in compliance with a state court order, the construction of 140 townhouses for low- and moderate-income renters. Overall, the New Jersey Supreme Court’s judicial activism has led to the production of about 15,000 units of affordable housing, most of which have been produced without any direct public subsidy. Mt. Laurel has helped dramatize the state’s housing crisis and demonstrated how cities and towns can use government regulation – such as inclusionary zoning and resale controls (which limit rising housing costs) – to build low- and moderate-income housing.

These results, however, did not match the reformers’ expectations. The goal of the attorneys was not simply to eliminate “snob zoning” but to end New Jersey’s housing crisis and stop de facto racial segregation. The Mt. Laurel decision didn’t come close to solving these problems. More than 20 years later, integration of the black poor into New Jersey’s suburbs is almost nil. There’s a huge gap between the number of housing units needed and the number provided by the court order. In truth, 15,000 units is a small fraction of the need in New Jersey, where the Department of Community Affairs estimates that more than 600,000 households now pay more than 30 percent of their gross income for housing (the state’s benchmark for affordability). Further, few Mt. Laurel-sponsored housing units have been built in affluent suburban communities, and most of the housing that has been built has been targeted for lower-middle-class families and the elderly, not the poor.

Why was Mt. Laurel’s legacy so limited? Clearly, both institutional and individual racism have played a big role in the lack of integration in the suburbs. Lenders, landlords, and realtors still discriminate based on race, steering homebuyers into segregated neighborhoods. And although most Americans say they wouldn’t mind living in “integrated” neighborhoods, studies indicate that while blacks consider a neighborhood “integrated” when about half the residents are black, whites generally define “integration” as when about 10 or 15 percent of their neighborhood is black.

Racism alone, however, is an insufficient explanation. Economic and social conditions often contribute to racial animosity among whites. During the half-century after the Civil War, for example, lynchings increased whenever the price of cotton (and thus the health of the Southern economy) declined. A more contemporary example is Americans’ increased acceptance of immigrants during times of low unemployment.

Political leadership and social movements further influence racial competition or cooperation. Republicans have long sought to exploit racial issues like housing integration, school busing, and affirmative action to drive a wedge between white and black Democratic constituencies. Simultaneously, as Tom and Mary Edsall argue in Chain Reaction, Democratic leaders allowed themselves to become vulnerable on racial fears by focusing on social issues rather than progressive economic concerns. In addition, as the civil rights movement waned, a growing number of urban African-American leaders viewed racial integration of suburbia as a political threat that would eliminate a key component of their political base.

In the Mt. Laurel case in particular, New Jersey’s housing integration activists were also at fault. Unable to connect their noble purposes to the concerns of average white citizens, these activists struggled with a tiny political base. As New Jersey’s economy began its free-fall – declining wages, job losses, deindustrialization, weakening unions – white working class New Jerseyans fought to hold onto whatever social and economic security they had. So when vote-hungry politicians warned them that Mt. Laurel’s “forced integration” would threaten their hold on the American Dream, they responded to the code words.

Like many liberals confronting white racial prejudice, the Mt. Laurel advocates had little patience for, or skills in, grassroots organizing and the slow process of changing people’s hearts and minds. Moreover, their narrow focus on a single issue – fair housing – contributed to the decline of progressive politics. This meant not only loss of support for integration, but also the loss of support for eliminating poverty and the distress of our inner cities.

This helped spawn an electoral backlash, from Nixon’s “silent majority” strategy, to the Reagan counter-revolution, to the more recent reactionary impulses behind California’s anti-immigrant Proposition 187, the movement to dismantle affirmative action, and the rise of the religious right. The result is a more conservative judiciary (i.e. Justices Scalia and Thomas) which has begun to reverse liberals’ legal gains.

While the authors of Our Town argue that the Mt. Laurel plaintiffs’ judicial activism was rooted in the activist law practiced by the NAACP, which led to the historic Brown v. Board of Education case of 1954, there is little evidence Brown helped produce positive change, as Gerald N. Rosenberg documented in The Hollow Hope. Rather than promoting integration, Rosenberg found, the Brown decision hardened resistance to civil rights.

Organized social movements – not courts – bring about dramatic social reform. As Rosenberg argues, segregation declined only when the civil rights movement pushed the Congress and president to act. The authors of Our Town mistakenly compare Ethel Lawrence with Rosa Parks, the black seamstress whose refusal to give up her seat to a white man on a Montgomery, Alabama bus helped to spark the civil rights movement. Parks, who had spent time at the Highlander Folk Center’s training sessions for civil rights and labor activists, was actively involved with her church and part of a tightly-knit black community. Her refusal to move from the bus mobilized tens of thousands of black citizens to participate in the bus boycott and other activities to win concessions from Montgomery’s white business and political establishment. Many people activated by the successful bus boycott – from Dr. Martin Luther King to thousands of ordinary citizens – went on to engage in other aspects of civil rights activism. These victories belonged to the people, not the lawyers. Rooted in Christian theology and Gandhian non-violence, not constitutional doctrine, the civil rights movement at its peak used litigation as only one of many tools in their strategic arsenal. “Whenever possible,” King told reporters in early 1957, “we want to avoid court cases in this integration struggle.”

Unlike Parks, Lawrence was not part of an organized movement reaching out to capture the hearts and minds of the public. Lawrence came to rely on the housing lawyers who became self-perpetuating non-profit advocates remote from the average citizen. Nothing dramatized this more than the ease with which New Jersey’s current Governor, Christine Todd Whitman, dismantled the Public Advocate, a government agency set up in the 1970s, that championed the Mt. Laurel fight.

Yet it is hard to blame the lawyers for the Mt. Laurel rulings’ inability to produce the desired results. Suing, after all, is what they do. When litigation becomes a substitute for grassroots organizing, however, it is bound to fail. A strategy that costs a lot and produces little change drains resources that could be more effectively invested in organizers, researchers, public relations specialists, and others who work to with church and community-based organizations to empower and mobilize the poor.

Efforts to open up the suburbs are most likely to succeed when housing is part of broader political organizing agenda to build urban-suburban bridges. For example, Minnesota state legislator Myron Orfield has spearheaded a formidable effort to build a progressive metropolitan coalition. He also sponsored legislation to create a tax-base sharing plan to reduce property tax disparities among municipalities in the region so that inner-ring suburbs and the two major cities (Minneapolis and St. Paul) had a stake in regional cooperation plans. His legislation created an elected metropolitan council with the authority to establish “fair share” housing goals for each municipality.

The authors of Our Town and Suburbs Under Siege, however, reflect a general cynicism about the potential of people to embrace social reform. Professor Haar’s enthusiasm, in particular, for a court-based strategy is unwarranted. It should be obvious, especially to non-lawyers, that a top-down strategy such as litigation cannot extend economic rights when it undermines local community institutions and fails to empower the poor and middle class. But the author seems to believe that only idealistic lawyers and judges can impose change on a selfish public.

Using the courts to go over the heads of the public ignores Americans’ great capacity to rise to the challenge. Both books could have benefited from a better understanding of progressive social change in America. The great achievements of this century – from the 8-hour work day, to the Wagner Act, to the right of women to vote, to Social Security and civil rights – came about not primarily through litigation, but through social protest and political organizing rooted in a public concern for the common good.

John Atlas
John Atlas is a found of Shelterforce and board chair emeritus. He is the producer of ACORN and the Firestorm, a film directed by Reuben Atlas and Sam Pollard and author of SEEDS OF CHANGE: The Story of ACORN, America's Most Controversial Anti-Poverty Community Group. He is also the former executive director of the Passaic County Legal Aid Society.

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