VOL. 6 NO. 10 (October , 1996) pp. 138-40.
Charles M. Harr, SUBURBS UNDER SIEGE: RACE, SPACE, AND AUDACIOUS
JUDGES (Princeton, NJ: Princeton University Press, 1996), 266 pp.
Reviewed by Charles M. Lamb State University of New York at
Buffalo
Political scientists have devoted little attention to housing
discrimination and segregation when compared to school
segregation and voting rights. Why? Perhaps it is because we
think the rights to education and to vote are more
constitutionally "fundamental" than any judicially
endorsed right to housing at the present time. Or maybe it
relates to the fact that few fair housing cases have been decided
on the merits by the United States Supreme Court during the past
twenty-five years, and that they have usually been decided
narrowly. Certainly it is true that most constitutional law texts
reprint few if any fair housing decisions, while school
desegregation and voting rights are typically covered adequately.
Even the most prominent fair housing decisions since the outset
of the Burger-Rehnquist era are not as well known as those in
school desegregation and voting rights.
Whatever the reasons for this neglect, the publication of
first-class articles and books on fair housing policy and law are
for the most part rare. The publication of Charles Haar's new
book, Suburbs Under Siege, is one of those rare studies:
it is both a worthy addition to the fair housing literature and a
valuable study of a state supreme court. Haar, who teaches at the
Harvard Law School, has published distinguished books and
articles in these areas in the past. This particular book
provides a detailed case study of a famous New Jersey Supreme
Court case: Southern Burlington County NAACP v. Township of
Mount Laurel (1975) and its progeny (there were ultimately
five decisions handed down in the Mount Laurel
litigation). Mount Laurel held that the equal protection
and due process clauses of the New Jersey constitution prohibit
localities from using exclusionary zoning ordinances and building
codes to restrict the development of low- and moderate-income
housing. In Haar's words, the Mount Laurel decisions
"identified and enunciated a constitutional right for all
people--rich or poor, black or white--to live in the
suburbs" (p. 3).
Haar states his basic objective simply: "at the present
juncture of class and race relations in the United States, an
aggressive posture on the part of the third branch of government
is indispensable to the achievement of economic and social
equality" (p. xiv). In pursuit of this end, the author
explores the policy formulated by the New Jersey Supreme Court in
Mount Laurel and, secondarily, the part played by special
masters in influencing the impact of these unpopular and
complicated rulings. Haar also examines related movements in the
New Jersey state legislature, both for and against the Mount
Laurel doctrine, and the importance of the New Jersey's Fair
Housing Act of 1985.
Even though the Mt. Laurel cases were among the most
activist state court decisions in recent memory, Haar argues that
even greater activism is essential to achieve fairness in
exclusionary zoning cases. He quotes Cardozo's belief that the
major value of courts in American democracy is "making vocal
and audible the ideals that might otherwise be silenced, in
giving them continuity of life and of expression" (p. 126).
Yet Haar may well go beyond Cardozo. Haar feels that if abundant
activism fails to produce the desired result in exclusionary
zoning cases, state courts should simply resort to more activism.
Haar's theory of activism is mainly presented in Chapters 7 and
8. In those chapters, he argues that courts should have the
discretion to make normative judgments in cases where basic civil
rights and liberties are being violated and the other branches of
government cannot or will not act (pp. 186-88). This means that
"courts need considerable flexibility to respond to the
bureaucratic roadblocks and chronically uncooperative defendants
that typify intensely debated social issues raised in
institutional litigation" (p. 157).
Distinguishing his work from that of Donald Horowitz and Gerald
Rosenberg, Harr asserts that courts are indeed capable of
designing and overseeing major social policies to reform state
political and legal systems. As a consequence, in Mount Laurel,
Haar maintains that the New Jersey Supreme Court demonstrated
that "[t]he constraints--of efficiency, competency,
resources, limited discretion, and impartiality--that thoughtful
scholars point out . . . are not insurmountable in pressing
institutional restructurings by the courts" (p. 147). Haar
therefore concludes that "[t]he scathing charge that courts
lack the competence, the ability, even the patience to implement
social policies over time is not borne out by the New Jersey
experience" (p. 133). He also concludes that the Mt.
Laurel decisions led to some very positive outcomes,
especially by providing some 54,000 new or rehabilitated low- and
moderate-income housing units between 1987 and 1992 (pp. 131,
189-90). By necessity, this means that the New Jersey Supreme
Court's decisions ultimately provided more suburban educational
and employment opportunities as well.
Out of necessity, Haar addresses separation of powers at various
points in his book, concluding that activist decisions like
Mt. Laurel do not violate the most basic tenets of
separation of powers theory. "Traditional separation of
powers doctrines," he observes, "did not furnish a
pertinent guideline for the courts' efforts to remedy the deep
wrongdoing of systematically misusing local regulatory
powers" (p. 186). Nor should judges necessarily fear that
their activist decisions in "institutional restructuring
cases" will undermine the legitimacy of judicial decisions
since "fear or caution in the exercise of power can
undermine legitimacy and dignity just as surely as an excess of
activism can." (p. 134).
How will scholars react to Haar's book? Some will view it as a
convincing and laudable study of one state's attempt, in the face
of long odds, to compensate for past housing discrimination and
segregation based on race. They will tend to agree with Haar's
basic normative theme: that state courts should become more
active in handing down liberal decisions on exclusionary zoning
and related matters because of the seriousness of the problem,
and especially since it is unlikely that the Rehnquist Court will
change its tune on these matters. After all, housing
discrimination continues to occur frequently in the United
States, according to those who should know, and housing
segregation has decreased only modestly over the past twenty
years, with no dramatic breakthrough in sight. In short, some
will consider the Haar book to be a well-timed study that harkens
us back to the best ideals of the 1960s--ideals that constitute
the backbone of the nation's quest of fairness and equality.
More conservative observers will see Haar's book quite
differently. To them, Haar may be viewed as a dreamer and his
research may be seen as just one more volume by a liberal
scholar, out of touch with the real world, urging dramatic social
change in America that many whites are unwilling to accept.
Residential segregation has characterized the housing market
throughout most of the United States, for most of the twentieth
century, and there is little reason to think it will change
markedly in most middle- and upper-class neighborhoods in the
near future. These observers will say that the racial composition
of their neighborhoods will not change very much because most
minorities do not earn the incomes necessary to live in nice,
predominantly white, areas. Some will probably also say they fear
the value of their homes will decrease if more than a few
minority families live nearby. If these minority families fall
within the same income group as the white families already there,
perhaps there will be no problems. Yet the type of change that
Haar advocates goes beyond this scenario. Haar champions a
"fair share" approach at the local level and wants to
see virtually all neighborhoods accept enough subsidized housing
to permit the poor to live in the suburbs. Although Haar's book
is a valuable contribution to the literature, in the final
analysis it will not convince many conservative suburbanites that
exclusionary zoning must cease.
INSERT THE FOLLOWING AT THE PROPER PLACE; Haar's book essentially
has two themes: one focuses on what the New Jersey Supreme Court
did about exclusionary zoning; the other focuses on the need for
judicial activism when the other branches of government fail to
bring about effective reform where law and policy violates basic
legal rights. Haar's research is not only based on his analysis
of New Jersey Supreme Court decisions on exclusionary zoning, but
also with interviews with New Jersey judges, lawyers, planners,
builders, lenders, and municipal officials.
Copyright 1996