Amicus Brief — Joseph Skilken & Co. v. City of Toledo

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Supreme Court of the United

October Terni, 1976

No. 75-1002

JOSEPH SKILKEN AND COMPANY, et al.,

Petitioners,

vs.

CITY OF TOLEDO, OHIO, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UnrtTep States Court or APPEALS

For THE SIxTH CIRCUIT

BRIEF OF AMICUS CURIAE, CITY OF

PARMA, OHIO

Rosert R. Soutic

Special Counsel

Parma City Hall

6611 Ridge Road

Parma, Ohio 44129

(216) 886-2323

Attorney for Amicus Curiae

Sponsored By:

ANDREW BoyKo

Solicitor, City of Parma, Ohio

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

TABLE OF CONTENTS

ee Ce CD wittitiieniccntinrennictnntinieciisticmnssnniiintsiaiie: I

Beptewest GE Amebees CUmbee 22.c.nccccceccncccccccscesecsessceseseveescees 1

IS Ge CII ertceccecnetsinicnentesnnnisnttinniisitasiinanatinnnen 2

Argument—

Federalism Is a Cardinal Principle of Our System

of Government . ......................... iilotecaninileinenisetnitilietniss 3

Sixth Circuit Court of Appeals’ Decision Was Em-

EY SII - cccvsticssinmctiastibninadinneainensinéliniiiamndtaniiilinasiins 6

Petitioners’ Reliance on Village of Arlington Heights

v. Metropolitan Housing Development Corpora-

FE I eitistecericcendiscniaccnatnnsinemieneiiniatonsiinesniene: 8

Political Decisions Invite Political Reaction ............ id

TEESE TL, Pe ee NEE ee I Dee SO 18

TABLE OF AUTHORITIES

Cases

Berman v. Parker, 348 U.S. 26 (1954) 0000.0. 4

Cornelius v. City of Parma, Ohio, 374 F. Supp. 730

(N.D. Ohio 1974), cert. denied, March 8, 1976 (No.

Ce 1

Day-Brite Lighting, Inc. v. State of Missouri, 342 US.

fe PRREASISSEBEASTS erates NCD aL Meroe Ae ACen enae 3

Driscoll v. Austintown Associates (1975), 42 Ohio St.

LA ae AN GR a ENN A PO TC 7

Duryea v. City of Rolling Meadows, 119 Ill. App. 2d

Ey TEIIIITIEED sndciocecntemsectienepnateneicegenndnctsbaneucdgalanptetaieoumadindan 10

Evans v. Abney, 396 U.S. 435 (1970) 4

Ferguson v. Skrupa, 372 U.S. 726 (1963) 00 3

Griswold v. State of Connecticut, 381 U.S. 479 (1965) .. 3

Hernandez v. Texas, 347 U.S. 475 (1954) 0 16

Holtzman v. Schlesinger, 414 U.S. 1304 (1973) 4

Karr v. Schmidt, 401 U.S. 1201 (1971) . ncaa io Oe

Keyes v. School District No. 1, 413 US. ‘189 (1973) 18

Lane County v. Oregon, 74 U.S. (7 Wallace) 71 (1868) +

Lindsey v. Normet, 405 U.S. 56 (1972) 0 7

Mahaley v. Cuyahoga Metropolitan Housing Authority,

900 F.2d 1087 (6th Cir. 1974), cert. denied, 419 U.S.

I CITT. scscdibiietsiiesnsinapcisnschiemsiadeiadiatpenierinaiaainhtentiiaiaticee tates 1

Mayor of the City of Philadelphia v. Educational Equal-

ity League, 415 U.S. 605 (1974) 6

Metropolitan Housing Development Corporation v. Vil-

lage of Arlington Heights, 373 F. Supp. 208 (N.D.

ts GHRTED . seceissehsshesesiniensaiininnnaibtiiniediaduiiapiininiaamecgiciniil 8,9, 10

Metropolitan Housing Development Corporation v. Vil-

lage of Arlington Heights, 517 F.2d 409 (7th Cir.

SUED : sinnsinescsinstesticnaniieiaitensnataigtehiteipaliliatiimal ht iets ea a 11, 18

The New York Times Company v. Sullivan, 376 U.S. 254

(1964) __.... suniiepeanaciontosnenamtiaintibieaiisinestiaadiaiaaaistaiteniasibiniis 15

Olmstead v. United States, 277 U.S. 438 (1928) 18

Pennekamp v. Florida, 328 U.S. 331 (1946) 0 15

Reid v. Covert, 354 U.S. 1 (1957) 19

Rizzo v. Goode, U.S. _._, 96 S. Ct. 598 (1976) 6

Rockbridge Associates, Ltd. v. Pruitt, 341 F. Supp. 703

(N.D. Ga. 1971), affd. en banc, 491 F.2d 5 (5th Cir.

1974), cert. denied, 419 U.S. 837 (1974) 8

Schlesinger v. Reservists to Stop the War, 418 U.S. 208

(1974) _ Siete eeemninaitine ae

Shapiro v. United States, 335 5 US. 1 1 (1948) . a

ee ee = a SS RS ae OS

Ill

Snyder v. Massachusetts, 291 U.S. 97 (1934) 15

Stoutenburgh v. Hennick, 129 U.S. 141 (1889) ............ 3

United States v. Butler, 297 U.S. 1 (1936) .................... 8

Village of Arlington Heights v. Metropolitan Housing

Development Corporation, cert. granted, ........ US.

‘aaa OS ee

*Village of Euclid, Ohio v. Ambler Realty Company,

Se es UY I vescctececcetsinnvsictineisgaececidemasinionsmapensietiiintes 10

Walker v. City of Belpre (1967), 14 Ohio App. 2d17..... 7

Warth v. Seldin, 442 U.S. 490 (1975) .............cccecceceeeeeeees 10

Washington v. Davis, ........ eb wink , 96 S. Ct. 2040

(1976) ....... ial el ...18, 19

Weaver v. Ham, 149 Tex. 309 (1950) -...........cccccceeeeeeees 7

White v. Cincinnati (1956), 101 Ohio App. 160 ............ 7

Constitutional Provision

United States Constitution, Ninth Amendment ............ 11

Other Sources

Arrica Report at 34-5 (January-February, 1973) ........ 17

BALLENTINE’s LAw Dictionary 1156 (3d ed. 1969) ........ 15

BANFIELD, THE UNHEAVENLY CITy (Boston: Little,

Brown and Company, 1970) -.............---------- 16, 17

CONGRESSIONAL RESEARCH SERVICE, AN ANALYSIS OF

Section 235 AND 236 ProcraMs, at 31 (May 24,

TD acecrcaciesvnssenssteonsincinrsnctneessecinenenssinaccamsaesnsntaveesattsiiiatitie )

Danzic, The Social Framework of Ethnic Conflict in

America, OVERCOMING MippLeE CLAss RAGE, at 251-3

(Philadelphia: The Westminster Press, 1971) ........ 16

GLAZER AND MoyNIHAN, RACE AND ETHNICITY IN MODERN

America, at 115-123 (Lexington: D.C. Heath Com-

pany, 1974) cesesenenevonnnsecsssenncceeeesennnnnunnsssssasenneeneseronnanassssses 16

GRISWOLD, THE JUDICIAL Process (New York: The

Association of the Bar of the City of New York,

1973) / anetpiaiepitaiiaiaaitiadtiaabaiaia ia: dit 14, 16

Gurr, WuHy MEN REBEL, at 186 (Princeton, New

Jersey: Princeton University Press, 1970) ............ 13

HOUSING IN THE SEVENTIES, at 4-57 (HUD, 1973) ........ 9

How Busing Failed in Riverside, PsycHoLocy Topay,

OE Ge GA TE eeettecetintseeietiniaieensens 12

Kristol, Wall Street Journal, at 14 (June 17, 1976) .... 12

McC.Loskey, THE MopERN SUPREME Court, at 343

CORITUTNED sexuelle cincinnati ial 14

MOuUSNIER, PEASANT UPRISINGS IN SEVENTEENTH CEN-

TURY FRANCE, RUSSIA AND CHINA, at 330 (New

York: Harper and Row, 1967) 0...........::c::c:ccecceee 13

PRALL, THE AGITATION FOR LAW REFORM DURING THE

PURITAN REVOLUTION, 1640-1660 (The Hague:

TE Ts, TUES: cpciiiadeitiesectiaiiantentdaatenininitetnicnettinites 14

Rule 42-4, Rules of the Supreme Court of the United

SOUND iccncnnnndcieccsiitecttndibelipasdiliiailentsleadibbadiiiemsenididicaiiia lai cat dine 1

SMITH, THE RusSIANS, at 77 (New York: Quadrangle,

TIDTTED -. sissestaecactuiccttarlanasibadeaas cieabisiadiibictastadesideich ta teaadaeaadiiiaintiadtias 11

Sowell, A Black “Conservative” Dissents, NEw YorkK

TIMES MaGazIneE, Aug. 8, 1976 7

UBBELOHDE, THE VICE-ADMIRALTY COURTS AND THE

AMERICAN REVOLUTION (Chapel Hill: The Uni-

versity of North Carolina Press, 1960) .................... 14

Washington Post, at Al and A3 (August 12, 1976) ... 14

Supreme Court of the United States

October Term, 1976

No. 75-1002

JOSEPH SKILKEN AND COMPANY, et al.,

Petitioners,

vs.

CITY OF TOLEDO, OHIO, et al.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

Unrrep States Court oF APPEALS

For THE SIXTH CIRCUIT

BRIEF OF AMICUS CURIAE, CITY OF

PARMA, OHIO

INTEREST OF AMICUS CURIAE

This amicus curiae brief is being filed pursuant to

Rule 42-4 of the Rules of the Supreme Court of the United

States by the City of Parma, Ohio, a political subdivision

of the State of Ohio, and is sponsored by its authorized

law officer, the City Solicitor.

Parma was named a defendant in three separate fed-

-.al court suits involving issues similar to those presented

in the case at bar. Two of the actions resulted in judg-

ments in favor of Parma and the Court denied certiorari.'

1. Mahaley v. Cuyahoga Metropolitan Housing Authority,

500 F.2d 1087 (1974), cert. denied, 419 U.S. 1108 (1975); Cornelius

v. City of Parma, Ohio, 374 F. Supp. 730 (N.D. Ohio 1974), cert.

denied, March 8, 1976 (No. 75-1012).

As this brief is being written, the third suit is pending in

the District Court.2 Although that pending action is fac-

tually distinguishable from the case at bar, and Parma has

raised numerous defenses in addition to the issues herein

presented for review, Parma’s contentions have been

strengthened by the Court of Appeals’ decision in this case.

Parma therefore has a vital interest in respectfully urging

affirmance of the judgment of the Court of Appeals for

the Sixth Circuit.

SUMMARY OF ARGUMENT

When the District Court exceeded its authority and

ordered the City Council of Toledo, Ohio to pass a spot-

zoning ordinance (to benefit a private builder seeking to

build higher density, low-cost public housing in an area

zoned for private residences) and also tried to treat this

zoning litigation like a school desegregation case and or-

dered the “desegregation” of the entire city, the Court of

Appeals for the Sixth Circuit properly instructed the Dis-

trict Court that it possessed neither legislative nor admin-

istrative power and was eminently correct in reversing the

lower court’s decision.

Federal Courts do not sit as super-legislatures, and

federal judges are not authorized to legislate social policy

on the basis of their own personal inclinations, but should

exercise judicial self-restraint. There are limits to what

a freedom-loving people, not broken in from birth to the

ways of dictatorships, will tolerate from federal courts

making essentially political decisions, especially when

those decisions evidence a lack of understanding of the

2. Parma has filed a motion for summary judgment and is

awaiting a ruling thereon.

realities of urban life and, in violation of Our Federalism,

invade areas of concern constitutionally entrusted to the

States and to the people.

There is no basis for the exercise of federal court au-

thority in the mere fact that people of the same race or

ethnic grouping congregate in their own separate resi-

dential areas. Proof of a discriminatory racial purpose is

necessary to make out an equal protection violation.

When, as here, there is no constitutional violation, a fed-

eral court should not concern itself with local legislative

or administrative decisions.

ARG. .=NT

Federalism Is a Cardinal Principle of Our

System of Government

It is a cardinal principle of our system of government

that local affairs shall be managed by local authorities, and

general affairs by the central authority. Stoutenburgh v.

Hennick, 129 U.S. 141, 147 (1889).

Justice Black, in Karr v. Schmidt, 401 U.S. 1201, 1203

(1971) stated:

Moreover, our Constitution has sought to distribute

the powers of government in this Nation between the

United States and the States. Surely the federal ju-

diciary can perform no greater service to the Nation

than to leave the States unhampered in the perfor-

mance of their purely local affairs.

Federal courts do not sit as super-legislatures. Day-

Brite Lighting, Inc. v. State of Missouri, 342 U.S. 421, 423

(1952); Ferguson v. Skrupa, 372 U.S. 726, 731 (1963); Gris-

wold v. State of Connecticut, 381 U.S. 479, 482 (1965). Nor

do they sit to determine whether a particular housing proj-

ect is or is not desirable, for it is within the power of the

legislature to determine that the community should be

beautiful, spacious, and well-balanced. Berman v. Parker,

348 U.S. 26, 33 (1954).

We have a government of limited powers, and those

limits pertain to the Courts as well as to Congress and the

Executive. Holtzman v. Schlesinger, 414 U.S. 1304, 1315

(1973) (Justice Marshall).

It is the responsibility of federal courts and federal

judges to construe and enforce the Constitution and laws

of the land as they are and not to legislate social policy on

the basis of their own personal inclinations. Evans v.

Abney, 396 U.S. 435, 447 (1970).

The Court held in Ferguson v. Skrupa, 372 U.S. 726,

729 (1963), that “Under the system of government created

by our Constitution, it is up to legislatures, not courts, to

decide on the wisdom and utility of legislation”, and fur-

ther held, at 730, that “We have returned to the original

constitutional proposition that courts do not substitute

their social and economic beliefs for the judgment of legis-

lative bodies, which are elected to pass laws.”

In Lane County v. Oregon, 74 U.S. (7 Wallace) 71, 76

(1868), the Court held:

The people of the United States constitute one

nation, under one government, and this government,

within the scope of the powers with which it is in-

vested, is supreme. On the other hand, the people of

each State compose a State, having its own govern-

ment, and endowed with all the functions essential to

separate and independent existence. The States dis-

united might continue to exist. Without the States in

union there could be no such political body as the

United States.

Both the States and the United States existed be-

fore the Constitution. The people, through that in-

strument, established a more perfect union by sub-

stituting a national government, acting, with ample

power, directly upon the citizens, instead of the Con-

federate government, which acted with powers, greatly

restricted, only upon the States. But in many articles

of the Constitution the necessary existence of the

States, and, within their proper spheres, the indepen-

dent authority of the States, is distinctly recognized.

To them nearly the whole charge of interior regulation

is committed or left; to them and to the people all

powers not expressly delegated to the national govern-

ment are reserved. The general condition was well

stated by Mr. Madison in the Federalist, thus: “The

Federal and State governments are in fact but dif-

ferent agents and trustees of the people, constituted

with different powers and designated for different

purposes.”

Thus, within a short time after the nation was agonized

by a civil war fought to preserve the Union, the Court

eloquently affirmed the independence of the States within

their sphere of authority. This principle is summed up

in the term “Our Federalism”, and is the foundation of

our government.

Within a unitary court system, the principle of sepa-

ration of powers governs the relations between the tripar-

tite branches, and the authority of courts to intrude into

the operations of the other branches is severely restricted.

When, as here, the emphasis shifts to a determination of

the authority of a federal court to intrude into the sphere

of activity of legislative and administrative bodies

within a State, that doctrine’s rationale applies as well to

the delicate issues of federal-state relationships under-

lying this case.”* When the frame of reference moves

from a unitary court system te a system of federal courts

“representing the Nation, subsisting side by side with 50

state judicial, legislative, and executive branches, appro-

priate consideration must be given to principles of fed-

eralism in determining the availability and scope of equita-

ble relief.” Rizzo v. Goode, ... U.S. __.. , 96 S. Ct. 598,

608 (1976).

Sixth Circuit Court of Appeals’ Decision

Was Eminently Correct

This is precisely what the Sixth Circuit Court of Ap-

peals did. It applied long-established and well-grounded

constitutional principles, and a large measure of common

sense, in reversing the erroneous decision of the District

Court. The District Court had no authority to order mem-

bers of the City Council to pass a new zoning ordinance

or to “desegregate” the City of Toledo, and its attempt to

do so was a raw misuse of judicial power which was prop-

erly nullified by the Court of Appeals.

This litigation was not instituted to vindicate any

rights of minorities to acquire existing housing allegedly

denied to them because of their race. Rather, the real

purpose of the suit was to obtain a spot-zoning change

and platting approval for Joseph Skilken and Company,

a private, profit-making builder. There was no showing

that the individual plaintiffs would actually purchase the

housing units if built, or that they could claim a prefer-

3. Mayor of the City of Philadelphia v. Educational E :

League, 415 U.S. 605, 615 (1974). 4 onal Equality

a 7

ence over prospective nonminority purchasers of the pro-

posed housing units without violating federal and state

antidiscrimination laws. In reality, the suit was for the

immediate benefit of Skilken. There is no constitutional

guarantee of access to dwellings of a particular quality.‘

No one has a constitutional right to spot zoning, either.

Rather, as the leading case of Weaver v. Ham, 149 Tex.

309 (1950), held in Syl. 4:

Where a city has by its basic zoning ordinance de-

clared a certain portion of that city to be in Zone

A, or a residential district, an amendatory ordinance

changing a named block in said district to Zone D,

or apartment house district, constituted unjustifiable

“spot zoning”, and was, therefore, void.

The rationale of the Weaver case, prohibiting such un-

justifiable spot zoning, has been adopted in Ohio. See

White v. Cincinnati (1956), 101 Ohio App. 160; Walker

v. City of Belpre (1967), 14 Ohio App. 2d 17.

Moreover, there are ample administrative and judicial

remedies under Ohio law if Skilken desired to claim its

rights were being violated. See Driscoll v. Austintown

Associates (1975), 42 Ohio St. 2d 263. If every builder

or real-estate speculator could seek to be free of the con-

straints of local building and zoning ordinances and avoid

State administrative and judicial proceedings by the device

of joining nominal minority plaintiffs and filing suit in

federal court, the floodgates of litigation would be opened.

Anytime any builder did not get his way when seeking

to build any kind of housing, or even a motel or restaurant

or factory, the National Committee Against Discrimination

in Housing, or similar group, could recruit minority persons,

4. Lindsey v. Normet, 405 U.S. 56, 74 (1972).

to become nominal plaintiffs to allege their rights to poten-

tial housing or public accommodations or jobs were being

violated, even though the majority of persons would be

equally so deprived if the construction did not go forward.

However, federal courts are courts of limited jurisdiction.

“It is not their function to serve merely as a zoning appeal

board. The individual merits of local zoning matters are

appropriately left to the sound discretion of local zoning

authorities.” Rockbridge Associates, Ltd. v. Pruitt, 341

F. Supp. 703, 705 (N.D. Ga. 1971), affd. en banc, 491

F.2d 5 (5th Cir. 1974), cert. denied, 419 U.S. 837 (1974).

Justice Stone, in the oft-quoted language of his dissent

in United States v. Butler, 297 U.S. 1, 79 (1936), cogently

observed that “while unconstitutional exercise of power

by the executive and legislative branches of the govern-

ment is subject to judicial restraint, the only check upon

our own exercise of power is our own sense of self-re-

straint.” The Court of Appeals exemplified the quintes-

sence of judicial self-restraint in reminding the District

Court that it possessed only adjudicative but not legisla-

tive or administrative power.

Petitioners’ Reliance on Village of Arlington Heights v.

Metropolitan Housing Development Corporation Is

Mis, ‘aced

Petitioners rely heavily on Village of Arlington

Heights v. Metropolitan Housing Development Corporation,

No. 75-616, pending in this Court on a writ of certiorari.

Their reliance on that case is misplaced. The District

Court® properly entered judgment for the municipality

and its officials, but although the Court of Appeals for

the Seventh Circuit did not rule that any of its findings

5. Metropolitan Housing Development Corporation v. Village

of Arlington Heights, 373 F. Supp. 208 (N.D. Ill. 1974).

were clearly erroneous, the Court of Appeals reversed

the District Court’s well-reasoned judgment.

In that case, suit was instituted to force Arlington

Heights to order a spot-zoning change for a 15-acre tract

of land, to permit a multi-family attached residence use

(such as apartments) in an area zoned for and consist-

ing of single-family detached residences.

The project that the corporate plaintiff wanted to con-

struct in the single-family residential zone was to have

been financed under Sec. 236 of the National Housing

Act of 1968. At the time the District Court’s decision

was rendered, the President had imposed a moratorium

on funding Sec. 236 projects. Those projects had come

under severe criticism for serious deficiencies, excessive

costs, and limited benefits. As the District Court ob-

served, the spot rezoning would stand and be well-nigh

irreversible even though the project is not built, “and

many varieties of buildings could then be constructed by

the legal owners in the midst of the existing single-fami y

residential area.’” If Metropolitan could build what it

wanted in the midst of a single-family residential area,

any property owner could build apartments there with

the inevitable consequence that those “apartment houses,

which in a different environment would not only be un-

6. See e.g. the HUD publication HOUSING IN THE SEVENTIES

(1973) (esp. pp. 4-57 for a summary of ten critical findings against

Sec. 236 projects). The report of the Congressional Research

Service of the Library of Congress for the Senate Committee on

Banking, Housing and Urban Affairs entitled AN ANALYSIS OF

SECTION 235 AND 236 ProcramMs (May 24, 1973) pointed out that

while nonprofit sponsors had accounted for 28% of Sec. 236

projects they accounted for 67% of the projects in financial dif-

ficulties (p. 31).

7. 373 F. Supp., at 211.

objectionable but highly desirable [would] come very near

to being nuisances.”®

As in Ohio, Illinois courts hold that a change of zone

applicable to only a small area, and a change which is

out of harmony with comprehensive planning for the good

of the community as a whole, constitutes illegal spot zon-

ing.* Also like Ohio, Illinois provides ample State adminis-

trative and judicial procedures for deciding zoning mat-

ters, which are in the last analysis the epitome of a local

rather than a federal concern.

The District Court specifically found that the three

individual plaintiffs did not represent a class, and held

plaintiffs did not prove discrimination against racial minor-

ities as distinguished from the underprivileged generally.

The lack of housing for low earners in the suburban area

affects the entire group, not merely blacks or Mexican-

Americans.”” ‘

This Court held in Warth v. Seldin, 422 U.S. 490,

508 (1975), that “Absent the necessary allegations of a

demonstrable, particularized injury, there can be no confi-

dence of ‘a real need to exercise the power of judicial re-

view’ or that relief can be framed ‘no broader than re-

quired by the precise facts to which the Court’s ruling

would be applied.’ Schlesinger v. Reservists to Stop the

War, 418 US., at 221-222.”

With one judge dissenting, the Court of Appeals, speak-

ing through Judge Swygert, assumed the role of a super-

legislature to alleviate the problem it saw in “de facto

8. Village of Euclid, Ohio v. Ambler Realty Co., 272 US.

365, 395 (1926).

9. Duryea v. City of Rolling Meadows, 119 Ill. App. 2d 445

(1970).

10. 373 F. Supp., at 210.

segregated housing”, and accused Arlington Heights of “ex-

ploiting the problem by allowing itself to become an almost

one hundred percent white community.”" (Emphasis

added.) There was no citation of authority for that re-

markable ipse dizxit.

What was left unsaid by Judge Swygert is equally

mind-boggling. How should a community proceed“to pre-

vent “allowing itself to become an almost one hundred

percent white community”? Should it erect an “Arling-

ton Heights Wall”, to become as infamous as the “Berlin

Wall”, including barbed wire and itchy-fingered armed

guards to prevent determined whites (exceeding some arbi-

trary quota) from attempting to take up residence in the

community?

How could any community constitutionally require

white persons, who desire to terminate their constitutional

right to travel by residing in that community, to keep

on travelling? And what if alternate destinations are

also “over quota” for whites? Municipal officials do not

assign their residents to particular housing units within

the community, nor do they build the housing, unlike

school authorities who built schools and assigned pupils

to their neighborhoods schools. Government officials have

no constitutional or legal authority to tell Americans where

to live. A man’s home is his castle, and surely his right

to choose it freely is one of the unenumerated rights re-

served under the Ninth Amendment.

Behind the Iron Curtain today, people must carry

identity cards and permits dictating in what community

they may live.” That may be one method of attempting

to enforce a “desegregation” order against the entire popu-

1l. 517 F.2d 409, 414.

12. HEDRICK SMITH, THE RUSSIANS 77 (New York: Quad-

rangle, 1976).

lation, as District Judge Young attempted to do in the case

at bar before he was advised of the limits of his authority

by the Court of Appeals for the Sixth Circuit, and of

policing a federally-imposed municipal policy of not “allow-

ing itself to become an almost one hundred percent white

community”. But would such regimentation be tolerated

by the American people, devoted to the concept of free-

dom and not broken in from birth to the ways of dictator-

ships?

True, there have been instances when people in Amer-

ica have been forced to move against their wills. But

most Americans today regard with a sense of shame the

herding of the native Americans, whose skin color was

red, to reservations, and forcing others, whose skin color

was yellow, from their homes in California. Hopefully,

no American today, whether considered “white” or “black”

or “yellow” or “red” would accept with docility such a

forced migration, or one as that depicted so poignantly in

Fiddler on the Roof. Yet, as with forced busing of school

children, lower federal courts seem to know of no other

way to “desegregate”, ultimately, except by enforcing

quotas through movement of bodies.’** While concern for

13. In his perceptive article in The Wall Street Journal of

June 17, 1976 (p. 14), Professor Irving Kristol discusses how the

persistence of lower federal courts in continuing to order forced

busing in the face of overwhelming evidence that it just doesn’t

work (either to maintain the set quota, or in improving educa-

tional achievement, or in fostering racial harmony) is explicable

as an example of “cognitive dissonance’”—the phenomenon where-

by people who believe strongly in a set of ideas will tend to re-

affirm those ideas most vigorously at the very moment when they

are repudiated by reality. Busing doesn’t work to improve achieve-

ment even when voluntary and has community support. See

How Busing Failed in Riverside in the June 1976 issue of Psy-

CHOLOGY Topay, pp. 66 ff. The problem should not be com-

pounded by extending the discredited ordering of forced busing

to ordering forced housing. The cry is often heard that refusal

to extend coercive decrees (that do not produce the intended

desired results in the field of schooling) to other areas, such as

housing, would be a “step backward”. But it would be prudent

to “step backward” rather than to step forward and fall off a cliff.

the safety of children has, with some notable exceptions,

resulted in resentful but relatively nonviolent acceptance

of forced busing, it is submitted that the more drastic

and all-embracing type of people-movement, which forced

residential-allocation would ultimately and ineluctably re-

quire, would not be tolerated in this land of the free.

The fascinating study of what causes people to rebel bears

this out:

If a highly legitimate regime imposes a policy that

substantially violates popular expectations about what

the regime should do, people are motivated to protest

the policy not only because of the direct deprivation

it imposes but because it is inconsistent with their

image of the regime. If the regime resists pressure

to change through normal channels, participatory RD

[relative deprivation] may increase to the point at

which demonstrative violence occurs, directed against

both the policy and the incumbents who imposed it.

As a last resort, intensely discontented citizens may

feel that a highly legitimate political unit can be pre-

served only by violent opposition to both incumbents

and institutions which are acting in an improper, i.e.

illegitimate way."

14. Tep Ropert Gurr, WHY MEN REBEL 186 (Princeton, New

Jersey: Princeton University Press, 1970). Studies of popular

uprisings and revolts throughout history reveal a recurring cause:

governments which seek to reduce all to uniformity and equality

“in the service of the state, riding roughshod over local privileges

and traditional liberties . . . [and raising] the hackles of entire

groups of people when they were confronted with the coldness

of the law, of these impersonal decisions handed down from afar,

by persons who were unknown to them or merely names...

Without intending it, probably, but pushed forward by jurists

who were imbued with ideas of equality and ‘reasons of state’

.. . [government officials] were carrying forward a slow revolu-

tion which made many people feel something like the cold hand

of death upon them and provoked violent reactions.” ROLAND

MOUSNIER, PEASANT UPRISINGS IN SEVENTEENTH CENTURY FRANCE,

RussIA, AND CHINA 330 (New York: Harper & Row, 1967). For

(Continued on following page)

Political Decisions Invite Political Reaction

In his penetrating essay, THE JupICcIAL Process,'*® Dean

Erwin N. Griswold reflects on the abuses of unrestrained

incursions of the judiciary into areas traditionally reserved

to the popular branches of government:

If the courts take on more and more of the basic

decisions of operating the government, then obviously

they become more and more involved in what are

essentially political decisions, of the sort that have

traditionally been made by the legislative or executive

branches of the government. Whatever else may be

said for this, it is not the democratic way. Indeed

it tends to be quite undemocractic, and there may

be some who feel that some of the results are reached

because the judiciary do not really trust or favor the

democratic process .. . In any event, “modern judicial

policies” which “seek to push the United States along

the paths of virtue’’® inevitably involve the courts

more and more in essentially political decisions, which

then invite and indeed require political reaction.

Judges who assume political roles are therefore subject -

to the same “uninhibited, robust, and wide-open” debate,

Footnote continued—

historical studies of popular reactions against the law and courts

in the context of revolutions, see CARL UBBELOHDE, THE VICE-AD-

MIRALTY COURTS AND THE AMERICAN REVOLUTION (Chapel Hill:

The University of North Carolina Press, 1960); Stuart E. PRALL,

THE AGITATION FOR LAW REFORM DURING THE PURITAN REVOLUTION

1640-1660 (The Hague: Martinus Nijhoff, 1966). More recently,

coal miners in West Virginia and surrounding areas engaged in a

wildcat strike to protest their grievances against federal court

orders (Washington Post, Aug. 12, 1976, pp. Al and A3).

15. New York: The Association of the Bar of the City of

New York, 1973, at 28-29.

(1973) ROBERT G. MCCLOSKEY, THE MODERN SUPREME CouRT 343

that “may well include vehement, caustic, and sometimes

unpleasantly sharp attacks”.”’

Justice Cardozo understood that “A fertile source of

perversion in constitutional theory is the tyranny of la-

bels”,'* and Justice Frankfurter taught that “It is the part

of wisdom, particularly for judges, not to be victimized by

words”,'® for there is “a tendency . . . whereby phrases

are made to do service for critical analysis by being turned

into dogma.”*°

Judges who seem to have an idée fixe about the term

“segregation” come to aberrant conclusions about the role

of the judiciary in a free society and its ability to solve

delicate preblems intrinsic to human relations. The term

“segregation” originally meant “An enforced separation

of races, particularly the white and colored races, as under

statutes and constitutions providing for the separate educa-

tion of colored and white children.” BALLENTINE’s LAW

Dictionary (3d Edition) 1156. In school cases, the modi-

fiers “de jure” and “de facto” were added to delineate

situations wherein judicial remedies may be appropriate,

and those wherein no judicial intervention is warranted.

To apply the term “segregation” to the existence of

racial concentrations in urban residential areas is both

misleading and productive of fuzzy thinking, for it begs

the question and ignores the element of free choice of

residences. Its use is one of the worst examples of the

mischief caused by the phenomenon sometimes called “in-

crementalism”, or, as described by Dean Griswold, a proc-

ess whereby “a sort of decisional leapfrogging takes over

17. The New York Times Company v. Sullivan, 376 U.S. 254,

270 (1964).

18. Snyder v. Massachusetts, 291 U.S. 97, 114 (1934).

19. Shapiro v. United States, 335 U.S. 1, 56 (1948).

20. Pennekamp v. Florida, 328 U.S. 331, 352 (1946).

as a principle expands: the first decision is distilled from

the language of the Constitution, but the next expansion

begins from the reasoning of the last decision, and so

on down the line until we reach a point where the words

of the Constitution are so far in the background that they

are virtually ignored.”*'

When judges see residential concentrations only in

terms of a “two-class theory”, i.e. black and white,” they

reveal a lack of understanding concerning the realities

of urban life. As the eminent urbanologist, Professor Ed-

ward C. Banfield, pointed out in his classic work,” “In

every large city ethnic groups of the second, third, fourth

and even later generations—Irish, German, Scandinavian,

Polish, Jewish, and Italian, among others—lived in self-

imposed isolation and sent their children to schools that

were to a high degree homogeneous.’”**

21. THE JUDICIAL PROCESS, supra, at 19.

22. Hernandez v. Texas, 347 U.S. 475, 478 (1954).

23. THE UNHEAVENLY City, 81 (Boston: Little, Brown and

Company, 1970).

24. There are numerous recent books and articles discussing

renewed ethnic and religio-ethnic awareness, and the natural

congregation of like with like. For example, David Danzig in

his article entitled The Social Framework of Ethnic Conflict in

America, in OVERCOMING MIDDLE CLASS RAGE, 251-253 (Phila-

delphia: The Westminster Press, 1971) says “The widespread ex-

istence of such subcommunities and their importance have made

our society vastly more complex than our ideas of town-hall de-

mocracy would allow us to believe. In one set of circumstances

we strive to live up to the principle ‘regardless of’ race, color

and creed; in other circumstances race, color, and creed are the

very principle by which human relationships are organized.

Gunnar Myrdal in my view failed to understand American society

when he assumed that this contradictory behavior reflected a

moral dilemma. On the contrary, this is the accepted differ-

entiated structure of our social order.”

In their article entitled A Resurgence of Ethnicity? by Nathan

Glazer and Daniel Patrick Moynihan in RACE AND ETHNICITY IN

MODERN AMERICA, pp. 115-123 (Lexington: D.C. Heath Company,

1974), the authors point out that “Just as blacks now want to

gather together in distinctive institutions where they can strengthen

specifically black social, cultural, and political tendencies, so do

other groups”.

ne ee ne a tt ne ee ee +

In the same work, Banfield* points out that like every-

one else, blacks prefer to live among people whose class

culture is not very different from their own, and he warns

that the “practice of calling all Negro neighborhoods ‘segre-

gated’ and ‘ghettoes’ misrepresents the situation seriously

and perhaps dangerously.” He further deplores the seman-

tic confusion arising from labelling all-black neighborhoods

“segregated”, without taking into account such factors as

immigration of large numbers of unskilled Negro workers

into urban areas and occupying all the low-cost housing

then available, as well as their own neighborhood pref-

erences. Roy Innis, leader of CORE, is an articulate

spokesman for the view of some black leaders that, at

least for a time, separatism is as useful and natural for

many blacks as it is for other ethnic groups.** Moreover,

court-ordered, forced dispersal of blacks from areas in

which they are concentrated would severely dilute the

political gains made through election of black public offi-

cials from such districts and the ability to control their

own instit’_.10ns.

Thus, it is not a simple matter of “black and white”;

there are many gray areas with respect to understanding

the social and psychological aspects of residential housing

patterns.

Courts are not as competent as are the political

branches to attempt to ameliorate intractable social prob-

lems, and court orders tend to be rigid, doctrinaire, and

the very antithesis of democracy. For exampie, the Dis-

trict Court issued a “desegregation” order which would

of necessity have affected the majority population of To-

ledo as well as the minority, but refused to allow inter-

25. Ibid. pp. 79-87.

26. See, e.g. Interview, in AFrrIcA REPorRT, January-Febru-

ary, 1973, 34-35, comparing blacks with Jews. See also, Thomas

Sowell, A Black “Conservative” Dissents, NEw YORK TIMES

MAGAZINE, Aug. 8, 1976.

vention by persons most to be affected by the real purpose

of the suit. “Integration” is not commanded by the Consti-

tution. Due Process is. In both Skilken and Arlington

Heights, suits to benefit builders were expanded beyond

the narrow issues of the actions to involve novel issues

and to set new precedents not contemplated by the issues

raised by the parties. Even if the decisions rendered by

the District Judge in Skilken and by the Court of Appeals

in Arlington Heights were the products of the purest mo-

tives and not the exercise of raw judicial power, “Expe-

rience should teach us to be most on our guard to pro-

tect liberty when the government’s purposes are benef-

icent. Men born to freedom are naturally alert to repel

invasion of their liberty by evil-minded rulers. The

greatest dangers to liberty lurk in insidious encroachment

by men of zeal, well-meaning but without understanding.”

CONCLUSION

Although the District Court treated this action (to ob-

tain a spot-zoning change) like a school desegregation case,

it failed to apply “the basic equal protection principle that

the invidious quality of a law must ultimately be traced

to a racially discriminatory purpose. That there are both

predominantly black and predominantly white schools in

a community is not alone violative of the Equal Protection

Clause. The essential element of de jure segregation is

‘a current condition of segregation resulting from inten-

tional state action .. . the differentiating factor between

de jure segregation and so-called de facto segregation .. .

is purpose or intent to segregate.’ Keyes v. School Dis-

trict No. 1, 413 U.S. 189, 205, 208 (1973). See also id., at

199, 211, 213.” Washington v. Davis, ........ OE , 96

S. Ct. 2040, 2048 (1974).

27. Justice Brandeis in Olmstead v. United States, 277 U.S.

438, 479 (1928).

are ee eee OE,

In the case at bar, the District Court inferred that the

refusal to spot zone would have a disproportionate racial

impact, but that was only conjecture. However, Washing-

ton v. Davis, 96 S. Ct., at 2050, clearly teaches that proof

of discriminatory racial purpose is necessary to make out

an equal protection violation. Therefore, the decision of

the Court of Appeals for the Sixth Circuit was eminently

correct and should be affirmed. The Court of Appeals

correctly applied the law enunciated by the Court, upheld

the vital principles of Our Federalism, and promoted

democratic principles and the concept of liberty. “Ours

is a government of divided authority on the assumption

that in division there is not only strength but freedom

from tyranny.” Reid v. Covert, 354 U.S. 1, 40 (1957).

Respectfully submitted,

RosertT R. SOLTis