THREE years ago the city of Yonkers was found guilty of more than four decades of intentional, unlawful racial segregation in housing and schools. The suit, brought by the Justice Department in 1980, alleged that the City was guilty not only of intentional segregation in subsidized housing, but also that this discrimination contributed significantly to the segregation of Yonkers' public schools.
The decision is the nation's first to link residential and school segregation, and blame city government for both. Yet, instead of solving the problem, the 600-page decision in the Yonkers case actually fueled the controversy.
Last Wednesday's discussion/shouting match at the Institute of Politics, concerned ostensibly with the affirmative housing remedies, offered a mere glimpse at the racially charged tensions that have plagued the city of Yonkers during the last four months.
The responses of two panelists who opposed the court-ordered remedy shed light on arguments against judicial remedies, and are grounded in assumptions, that the court is activist and insensitive to the claims of those who must bear the burden of court-ordered decrees.
These arguments are packed with misunderstanding and misrepresentation of a court which, for the first time, candidly and unqualifiably addressed the myriad factors in our society which perpetuate the subtle infrastructures of racial segregation.
In order to view the decision properly, we must discard the myth of a passive and aloof court. The court must be seen as a dynamic player in the field of public policy, which must negotiate, administer and oversee such affirmative decrees if it proposes to continue the battle to give substantive meaning to the rhetoric of equality.
THE Yonkers case reveals the importance of judicial remedies. The school desegregation plan outlined by the court, with special emphasis on magnet schools, has had consistent success over the last three years in promoting racial integration.
However, the court-ordered housing remedy, which called for 200 units of subsidized housing to be built on seven sites in predominantly white East Yonkers and 800 units of middle-income housing to be scattered throughout the city, has met with consistent and racially charged opposition on the part of city council members and local citizens.
In 1986 the city entered into a consent decree with the court and agreed to the proposed housing remedy by a vote of 5-2. A little over a year later, the city reversed itself, voting 4-3 in opposition to its previous agreement.
The controversy cooled only after the imposition of potentially bankrupting fines on the city and the threat of imprisonment on recalcitrant city council members. Reluctantly, in September of this year, the council again reversed itself and began to look at a timetable to implement the housing decree.
AT the Institute of Politics forum last week, Linda Chavez, a Reagan official in the Civil Rights division, said that she would not dispute the fact that "Yonkers is guilty of invidious and intentional racism."
In the same breath, however, she criticized the Yonkers decision as activist and in opposition to the original intent of the "straightforward and simple" civil rights laws of the 1960s.
She failed to understand the fact that makes the Yonkers case important--that the only way to address current racial segregation is through affirmative judicial remedies.
In perhaps one of the greatest misinterpretations of the landmark Brown v. Board of Education decision, which outlawed racial segregation in public schools, Chavez declared that, "The courts have come a far cry from a decision in 1954 that allowed a young black girl to attend her neighborhood school."
Completely lost on Chavez is that decisions such as Brown, and now Yonkers, do not bring victory with negative prohibitions but with recognition of the massive reconfiguration necessary for society to ensure equality. The courts need to go beyond simply affirming the rights of one person to attend one school.
Chavez charged that the trial judge created new rights--that of the poor to live among the well-off, as if to say that the rich have a right to live apart from those with less money and people have a right to live apart from people who look differently.
Professor of Education Nathan Glazer criticized the court for its insensitivity to the concerns of the white citizens of East Yonkers, while shouting to the audience, "I am tired of being called an apologist for racism." Reciting a standard litany of complaints to rationalize his opposition to the court's actions, Glazer called upon the demons of drugs, crime and plummeting real estate values.
THESE views would not be as dangerous and misleading as they are, if they were not so prevalent.
Because judges are isolated from the vagaries of political office and constituent pressures by life-time tenure, they are uniquely qualified to enter controversies of public policy where the actions of other governmental institutions offend the laws of this country.
The court cannot be an umpire, deciding dispassionately on issues of law. While there are grains of truth in this perception, decisions such as the Yonkers case, which require the ongoing participation of a federal judge to ensure the equal rights of an entire class of citizens, reveal a judicial system which is coming into its own, not as an umpire, but as a relief pitcher for democracy.