Wronging Rights

Could there be another Yonkers? Some observers think so. In the wake of the celebrated housing desegregation battle in New York's "city of gracious living," city councils across the country fear they are next. The reason: the Yonkers pattern of placing public housing in black inner cities, not white suburbs, is hardly unique—and other judges may choose similar means to try to change it.

In Yonkers, Judge Leonard Sand forced the city council to okay his plans for public housing by imposing fines that reached $1 million a day. "He's using one wrong to right an earlier wrong," says Norman Karlin, who teaches constitutional law at Southwestern University Law School in Los Angeles. Even middle-class blacks opposed the Yonkers plan because some public housing—frequently crime-ridden and harmful to property values—would be placed in their neighborhoods as well.

But the roots of the Yonkers situation lie not in the public-housing policies of the last 20 years but in the private-housing policies of the last 50. The problem, says Karlin, began when courts decided to defer to legislatures rather than review zoning laws under constitutional guarantees of property rights. Since the courts wouldn't interfere, new suburbs could use single-family zoning to keep blacks out. In many cases, up until the mid-'60s, zoning boards were quite explicit about their racial motivations.

Now, instead of enforcing property rights to strike down restrictive zoning and create a free market in housing, judges in New York and New Jersey have simply made up their own new zoning laws to force integration. It may be only a matter of time before judges in other areas assert their own arithmetics: that two wrongs do indeed make a right.