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