For the first time, Justice Department lawyers are asking a court to look simultaneously at a city's education and housing policies for evidence of illegal intent to discriminate. It is a novel and realistic approach, since subtle combinations of local policies can create or reinforce racial separation. But there is a danger: rather than better civil rights enforcement, might this new approach spawn more divisive court-ordered "solutions"?
Courts want proof of discriminatory intent, and in the absence of a smoking gun, such as old Jim Crow laws or blatant school board minutes, plaintiffs must scramble around for all sorts of indirect evidence that a series of choices made by local officials amounted to a conscious effort to create or preserve racial separation. School officials always argue that they can't help it if the neighborhood school concept, racially neutral on its face, reflects residential racial separation in classrooms. Obviously, it's hard to infer discrimination when housing patterns are a big, plausible alternative explanation. Now, in a trial that may last two months, the Justice Department is asking a court to look more broadly for signs of intent, considering both the education and housing policies of Yonkers, New York's fourth-largest city. The suit was filed by the expiring Carter administration after 18 months of investigation and unsuccessful negotiations with Yonkers. Reagan appointees hesitated, drew vigorous protests from career attorneys for their hesitation, and then decided not to drop the case and not to accept a toothless settlement.
Assume, for a moment, that the court finds violations: Yonkers officials built low-income housing over on that side of the tracks in order to keep "them" in their place, and then other officials opened, closed and gerrymandered schools intentionally to aggravate and perpetuate the separation. Even if all this were true, then what? The most Solomonic of judges in the most congenial of local climates cannot engineer wholesale remodeling of history's legacy, from housing to schools to jobs. The complexity of the Yonkers legal theory mirrors the complexity of the ideal solution--true social integration. That, alas, is utopian.
Yes, courts should embrace a more complex view of how discrimination arises and how its poisons persist. That would encourage officials to take the threat of litigation more seriously ("What? Us discriminate?") and negotiate. But, while Justice's action is helpful, the more urgent questions involve what to do once the dirty deeds are proven: what amount of change will we insist upon, and at whose expense? The administration and civil rights leaders exchange salvos, but neither side is building the new, necessary consensus.