Uncivil Liberties

To the Editors:
As a member and longtime supporter of the ACLU, I read with sadness more than anger "The Assault on Public Order: How the Civil Liberties Union Goes Astray" by William A. Donohue and James Taranto (Winter 1992).

Surely the ACLU’s courageous defense of the First Amendment over two or three generations deserves at least some mention. And the authors’ bitter critique goes much too far when it intimates that the tragic loss of security and civility in New York’s public spaces was largely caused by the ACLU. Geographic mobility, the decline of families, the rise of materialism, and the failure to pass on ethical standards to the next generation are all reasons our large cities find themselves in such spiritual and physical disorder today.

That said, the conclusion is inescapable that the ACLU has lost its sense of balance and no longer gives proper weight to community institutions trying to battle lawlessness and disorder in our cities. The authors fail to mention, however, that the position and tactics of the ACLU have changed remarkably in the last 15 years. While once the ACLU was an underdog organization championing the rights of the downtrodden, today it is the beefy bully on the block working to win through intimidation that which it could never win through litigation.

In Tompkins Square Park, for example, the New York Civil Liberties Union never actually filed suit, but instead attempted to intimidate and browbeat local officials in order to get a beleaguered city to give up the park to squatters, winos, and panhandlers. From San Francisco to Washington, D.C., we find a similar pattern: The ACLU holds a press conference, threatens to sue, blusters about civil liberties, and then waits for the city attorney or agency to give up rather than fight a prolonged and expensive battle on a community’s behalf. In too many cases, what the ACLU calls a successful defense of civil liberties is little more than a tearing down of communities and the fostering of much unnecessary resentment against the Bill of Rights.

My organization and others have found a way to reverse this trend: Marshal legal support on a community’s behalf when extreme assertions of rights threaten innovative community initiatives. Public officials are less likely to back down and community welfare is more likely to prevail when extreme libertarian demands from the left and right are challenged in court and in the press by citizens’ groups backed up by pro bono legal muscle.

If New York City is ever to regain order in public spaces, those of us who love civil liberties must learn to be as vigorous in our defense of commonsense community standards as we are in opposition to heavy-handed and unnecessary intrusion on our lives. Without such a response, public space and community order will continue to be nibbled away by those who see every demand in terms of rights, and every right as being individual, absolute, and disconnected from any sense of mutual obligation.

Roger Conner
Executive Director
American Alliance for Rights and Responsibilities
Washington, D.C.

Community Values

To the Editors:
Jules Cohn ("The New Communitarians," Winter 19921 provides a spirited and balanced account of our movement. I need to amplify only two points. First, there is nothing in the communitarian platform (published in the most recent issue of The Responsive Community) or in our philosophy that is antimarket. On the contrary, as Adam Smith recognized, markets work best when they are embedded in a moral community. What happens when this is not the case has been recently illustrated in New York City by major segments of the financial markets turning into what the front-page editor of the Wall Street Journal described as a "den of thieves." Similarly, my book on communitarian economics, The Moral Dimension, is dedicated to showing that choice behavior (in and out of markets) is best understood as a struggle between two major forces: self-interest and moral commitments. We believe that the pendulum has swung too far toward radical individualism and we seek to push it back—toward the center and not toward the opposite extreme, some new form of collectivism.

Second, while parts of our thinking are philosophical and express a yearning for a world that is less challenging than crossing a street in New York or taking a walk in Morningside Park, there is a hard edge to our concern. We spell out specifically what is entailed in our call for strong responsibilities to match strong rights. We call for drug testing of school-bus drivers, pilots, and police officers. We maintain that those who know they are likely HIV carriers should come forward, be tested, and disclose their condition to relevant others. These positions have nothing soft or fuzzy about them.

A major test of communitarian thinking would be its application to New York City. We will be reading your journal carefully for guidance.

Amitai Etzioni
The Responsive Community
Washington, D.C.

Clearing the Air

To the Editors:
Richard Miniter’s article ("Shutting Down New York," Winter 1992) is a shocking misrepresentation of the lawsuit brought by West Side activists against the proposed Columbus Center project.

First, the author blithely asserts that the plaintiffs are "antidevelopment activists." That is not accurate. The plaintiffs are strong proponents of comprehensively planned, rational development for the already overburdened West Side of Manhattan. As one of their attorneys, and as a member of the Coalition for a Livable West Side, I share that approach.

Second, the author alleges that "clean air is not Goldfeder’s chief concern, as evidenced by the fact that his lawsuit cited a hodgepodge of other arguments against the project." This is a total misconception of the legal process, as well as of the lawsuit, which was indeed motivated by a deep concern for enforcing the federal Clean Air Act.

Third, despite the writer’s repeated mischaracterizations, this was not my lawsuit. I served only as co-counsel to John Van Der Tuin, who did most of the work and should get the credit for Judge Kram’s ringing endorsement of the Clean Air Act. Even though I sent Mr. Miniter a copy of the briefs, he failed even once to mention Mr. Van Der Tuin.

Jerry H. Goldfeder
Pesetsky, Goldfeder & Bookman
New York, N.Y.

Richard Miniter replies:
In a Newsday op-ed article dated July 30, 1991, Mr. Goldfeder wrote: "There should be a moratorium on all development in Manhattan until a comprehensive environmental analysis of the entire borough is conducted.... It is literally unhealthy to allow any new development to proceed (emphasis mine)." I leave it to the reader to determine whether Mr. Goldfeder and his clients are antidevelopment activists.

Mr. Goldfeder failed to mention Mr. Van Der Tuin either in the Newsday article or during any of the four interviews I conducted with him in preparation for my article. Despite Mr. Goldfeder’s oversight, I am happy now to acknowledge Mr. Van Der Tuin’s role in the Columbus Center lawsuit.

To the Editors:
Jerry Goldfeder is clearly set on devouring economic growth in the Big Apple. His use of the federal Clean Air Act to stop the Columbus Center project is but one example of how environmental law is being used unscrupulously to squash development.

In upstate New York, for example, antinuclear groups are using an environmental lawsuit to prevent the town of Ashford from siting a low-level nuclear waste facility, even though town officials welcome the project as a means of providing jobs and money to the area. In North Hempstead and Hudson Falls, antidevelopment groups have brought environmental lawsuits to stop resource, recovery facilities, and in Monroe and Allegheny counties to delay the construction of new landfills.

As pointed out by Mr. Miniter, the antidevelopment crowd, led by lawyers like Goldfeder, must be held responsible for contributing to the state’s dismal business climate. They have not only impeded needed construction of offices, stores, and apartments, but have hurt consumers with higher utility bills, more expensive waste disposal costs, and the loss of critically needed jobs. Unless something is done to curtail their meddlesome litigation, these obstructionists will surely continue to tighten the gag on New York’s already choking economy.

Craig J. Rucker
Executive Director
Committee for a Constructive Tomorrow
Washington, D.C.

To the Editors:
Mr. Miniter’s article is another in a long line of "blame the lawyers for everything" pieces that appear regularly in the business media. Mr. Miniter is under a gross misconception if he thinks there is a lot of money to be made by lawyers in environmental lawsuits. The cases are very "iffy" and take years to prosecute—years of no pay and high expenses. Most environmental plaintiffs’ lawyers are not in it for the money but for the "cause."

If Mr. Miniter objects to the Clean Air Act, his target should be Congress, not the lawyers. Congress passed the Clean Air Act.

John P. Coale
Coale, Allen & Van Susteren
Washington, D.C.

The Bilingual Ghetto

To the Editors:
"Bilingual education" is neither bilingual nor education, as Stephanie Gutmann shows ("The Bilingual Ghetto: Why New York’s Schools Won’t Teach Immigrants English," Winter 1992). Without a philosophy of success, without a methodology that works, and without teachers truly competent in more than one language, bilingual education has generally been a failure in New York City. It has also guaranteed that Latino youngsters are kept apart in programs that are separate and unequal.

Frank J. Macchiarola
Benjamin N. Cardozo School of Law
New York, N.Y.

City of Hope

To the Editors:
Howard Husock, in "Subsidizing Discrimination at Starrett City" (Winter 1992), wrote that "housing subsidies may do more harm to minorities than good. In some cases, they have actually strengthened the incentive to discriminate on the basis of race. This is the conclusion to be drawn from what was probably the most celebrated New York housing discrimination controversy of the Eighties: the Starrett City racial quota system."

I find this to be a curious point of view for a man who described Starrett as "an island of racial integration" two years ago in a case study on "Occupancy Controls and Racial Integration at Starrett City." Mr. Husock’s original views still hold true. In these times of increased racial unrest, Starrett—a community with a unique racial and ethnic diversity—has remained virtually free of any bias-related incidents. In fact, the crime rate at Starrett is roughly ten times lower than the crime rate of most of the communities immediately surrounding the development, a point Mr. Husock made in his original study, but failed to reiterate in this article.

Mr. Husock also states that "because of its need to fill thousands of units, Starrett had to turn to rent subsidies and, despite mounting legal pressure, stick with a system that differentiated among prospective tenants on the noneconomic criterion of race." Readers of Husock’s 1990 case study were given a broader view of the desire to achieve an integrated community. In that study, Husock wrote:

"Starrett would, in screening tenants, explicitly consider race along with other factors such as income before agreeing to rent. . . . The Starrett management, of course, had an economic interest. Rosenberg added bluntly: ‘The company always perceived of an integrated development as much more valuable than an all-minority development. The history of all-black developments has been that city services disappear, the upwardly mobile blacks disappear, and you end up with those with the greatest social problems.’"

In the more recent article, Mr. Husock refers to the problems at Linden Plaza and Fairfield Towers, which run the spectrum of ills typical of low-income urban housing. What Mr. Husock fails to mention is that the fate of Linden and Fairfield is in stark contrast to the living conditions achieved and maintained at Starrett. Indeed, the conditions at Linden and Fairfield are exactly what Starrett set out to avoid by carefully creating its affirmative marketing campaign. The result has been a development of twenty thousand people recognized by many leading housing experts as the most successfully integrated development in the world.

Despite this extremely well-documented success, Mr. Husock still chooses to define Starrett as an example of an "incentive to discriminate on the basis of race." Mr. Husock fails to make any mention of current living conditions at Starrett. Nor does he interview any Starrett residents or point to any of the many studies that gauged feelings among long-term Starrett residents (which he did to support the quite different views in his earlier study).

Starrett has shopping facilities far better than those in the surrounding communities, schools perennially ranked at the top of the district, and a social life active in community-wide celebrations of many cultures. The racial tensions of Canarsie and the crime and devastation of East New York are not the result of programs modeled after Starrett, as Mr. Husock might have some people believe. They are the result of housing integration policies that were poorly planned and enforced, and are exactly the antithesis—both in execution and results—of the policies and strategies of Starrett’s planners.

Robert C. Rosenberg
Starrett Housing Corporation
Brooklyn, N.Y.

Howard Husock replies:
I did not mean—nor did I assert—that I had any misgivings about the day-to-day operations of Starrett City. It is my view, however, that Mr. Rosenberg was forced to adopt racial quotas as a result of the subsidy arrangement he faced. This is not a criticism of him or of the tactics he has pursued; it is, rather, a criticism of the subsidy-heavy New York housing system. Absent a subsidized market, I believe that blacks, like other groups, would segment themselves on economic lines and that such segmentation would allow the middle class to demonstrate that predominantly black neighborhoods need not deteriorate. Although Mr. Rosenberg has worked heroically to maintain high-quality living conditions at Starrett City, his system has sent a blunt and unfortunate message: Too many blacks are bad.

Backscratching in Cableland

To the Editors:
Thomas W. Hazlett ("The Case for Cable Competition," Winter 1992) has it exactly right when he identifies competition as the answer to the abuses in cable. But Mr. Hazlett is uncommonly tender in describing what’s going on out there in cableland.

The root abuse in most places in the country is the unholy alliance between municipal officials and the local cable operator. Local officials make it known to the cable provider that he won’t have competition from a second cable system. Of course, the defenders of that system will assure you that their franchises are labeled "nonexclusive." But just try to get a second franchise.

In return for the security of a monopoly grant, the cable operator doesn’t mind giving freebies to the city, including 5 percent of his gross receipts, free use of channels on the system, and outfitted studios at no cost. He will never criticize local politicians and local bureaucracy. Why? Because he’s licensed and they can revoke that license or refuse to renew.

Whatever its excesses or mistakes, competition is to be infinitely preferred over a system that is controlled.

Sol Schildhause
Farrow, Schildhause & Wilson
Washington, D.C.


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