July 31, 2014 Articles

Interview with David Troutt

The founding director of CLiME and author of The Price of Paradise discusses regional equity.

By Ronald W. Brown

Ronald W. Brown, an editor of the Access to Justice Committee newsletter, interviewed David Troutt, professor of law (Justice John J. Francis Scholar), founding director of the Rutgers Center on Law in Metropolitan Equity (CLiME), and author of The Price of Paradise.

Please tell our readers about yourself and the Center on Law in Metropolitan Equity you started.
I am a son of Harlem. I went to Stanford for undergrad and to Harvard for law school. I spent a few years with a large firm. I have a love for intellectual property, but I also realized I have strong interdisciplinary interests for which there is room in the law. I have been essentially committed to public-interest-law advocacy, and that led me to start the Center of Law in Metropolitan Equity at Rutgers Law School. CLiME grew out of a need to connect law students interested in pursuing clinical research on issues of race, socioeconomic class, and the opportunity dynamics of place. CLiME is an institution within the law school that encourages these broader inquiries.

At CLiME’s First Annual Scholarship Conference, you said that CLiME was multidisciplinary and interdisciplinary and that its work should be of interest to advocates and litigators who need to understand the social science underlying certain metropolitan matters. Because this interview will appear in a publication of the ABA Section of Litigation, could you expand on your statement and tell these advocates and litigators how the work of CLiME might impact them?
I think the answer to your question is found on our website. We proceed from this premise: Communities are the product not only of their residents but also of their legal rules and institutional networks. Stable communities are characterized by such resources as a strong tax base, the democratic participation of members, solid schools, robust civic organizations, steady economic growth and healthy opportunities for recreation, self-expression, and meeting basic household needs for goods and services. These are hallmarks of middle-class residential organization. Unstable communities experience the opposite—declining tax bases, weakened social and political structures, overwhelmed public institutions, and severe underinvestment. These are traits associated with poor or economically marginalized areas. The study of metropolitan equity reveals the structural inequality that often exists among communities and municipalities within the very same region and the inequitable processes that sustain inequality. Sustained inequality is inefficient, unfair, and violative of important legal norms. Persistent patterns of racial and economic segregation brought about through exclusion, flawed public policy, and discrimination exacerbate inter-local disparities in ways that threaten the prospects for opportunity across entire metropolitan areas, making them less competitive, more expensive, and for those in greatest need, unnecessarily difficult. The importance of developing more inclusive laws and policies of mutuality increases amid the growing racial and ethnic diversity of metropolitan America. Few states reflect these trends more than New Jersey. We embrace that challenge. Through CLiME’s research, archives, public forums, and collaboration with others, our fellows and faculty staff are committed to promoting both statewide and national discourse on the many subjects we collectively refer to as “metropolitan equity.”

The book jacket for The Price of Paradise states: “Many American communities, especially the working and middle class, are facing chronic problems: fiscal stress, urban decline, developmental sprawl, failing schools, mass incarceration, political isolation, disproportionate foreclosures, and severe public health risks.” You contend “there is a lack of ‘regional equity’ in our local decision making that has led to a looming crisis of inequality” and that “unless we adopt policies that take into consideration all class levels, the underlying inequity affecting poor and middle-class communities will permanently limit opportunity for the next generation of Americans.” What is regional equity?
Regional equity is a progressive framework for understanding and addressing structural inequality in America across communities. It recognizes several things. First, that most inequity that inhibits economic opportunity and retards the expansion of the American middle class is rooted in the disparate resources available for key public institutions with which most of us interact at very formative stages of our lives. Second, this focus on place helps us to overcome some of the difficulties we have in discussing race and class directly. Third, it allows us to pull up and map the geography of opportunity and figure out the key variables in opportunity, and lay out the legal framework that promotes those relationships or frustrates them. Lastly, regional equity focuses on the importance of regional dynamics to demonstrate whether we are meeting the principle of fairness as an expectation that most of us have for community life.

What this means for answers is the utilization of skills many of us possess but don’t know how to apply to this work. For instance, in our work at Rutgers law school we engage state and local government law, land use, bankruptcy, housing, civil rights, and increasingly the administrative world of transportation and infrastructure. It’s not just poverty and race; it’s opportunity and fairness in our common interest.

Let’s focus for a moment on structure, place, and opportunity. You have written: “[S]tructure has a lot to do with all of the details of how people and places experience opportunity. At the Center on Law in Metropolitan Equity (CLiME), we join a growing line of lawyers and legal academics who appreciate the role of structure—much of it legal structure, but public policy, too—in determining opportunity. The make-up and quality of our public schools results from housing policies and rules about public finance. Our communities and consumer infrastructure reflect patterns of economic development, transportation priorities, and tax policy. Our safety in public, the quality of nearby parks and even the composition of our neighbors reflect, in large part, the structure of local government law. Structure works on place, and place is where life happens. In our first year, CLiME endeavored to be a resource about the structural relationship between place and opportunity.” Were you successful in that endeavor? What were some of the challenges you faced?
We were in that we did what we set out to do. We wanted to create a digital portal available to the public interested in researching these issues, and we did. We wanted to publish an original piece of research that would help define issues of regional equity, and we did—David Rusk’s excellent article (available on the site) called “Measuring Regional Equity.” We wanted to be a venue for public discourse and held our first scholarship conference last February. Finally, we wanted to promote the excellent work of our students, and the best of their articles are published to our website.

The challenges have a lot to do with any start-up—technical difficulties, finding institutional support, getting your word out, and the inherent challenges of trying to expand a vision of research, inquiry, and advocacy that’s truly interdisciplinary. People want to work together, but they don’t have much experience doing it.

In chapter 1 of your book you share this story about the “Thief Who Stole School”:
“This is a crime story. Our felon is a forty-year-old single mother from Akron, Ohio, named Kelley Williams-Bolar. A jury convicted her of criminal ‘deception’ after prosecutors proved she had falsified residency records that purported to show that her two daughters—aged twelve and sixteen—lived with their grandfather in the Copley-Fairlawn school district in the Akron suburbs. The Copley-Fairlawn schools are good schools, rated among the very best in the state. Apparently, the schools in the district that services the public housing project where Ms. Williams-Bolar lives are not so good. Ms. Williams-Bolar knows something about the value of education, because she was a few credits shy of receiving her teaching degree at the University of Akron. Now as a felon her ability to get a license to teach in the state is in serious doubt. She already served nine days in jail, must do eighty hours of community service, and will be on probation for two years. Her sixty-four-year-old father, who was sick and under her care, was also charged with tampering with records and stealing money from the Copley-Fairlawn school district. For the two years they got away with it, they must now pay about $30,000 in tuition restitution.”

You go on to state: “What’s most interesting about this story is the importance of place. What this mom really tried to do was transcend the boundaries of place to get her daughters to the greener pastures on the other side. It’s like a prison break. This book is about why she would try and why she was denied . . . However, there’s another reason why the quandary of Kelley Williams-Bolar symbolizes mutuality. She is us. It’s no longer a question of whether we want this mom and her daughters to succeed; as a society, we need them to succeed.” How can regional equity assist in achieving that outcome?
First, regional equity presents her dilemma and the district’s response in the context of opportunity, boundary making, and fiscal stress, rather than criminal justice. Second, it exposes the one-sidedness of choice, a popular trope in education discussions today. Third, it suggests the importance of more inclusive districts or more inter-district choice as a policy reform.

In two sections of The Price of Paradise, you talk about legal localism and discuss five cases—Village of Belle Terre v. Boraas, 416 U.S. 1 (1974), Warth v. Seldin, 422 U.S. 490 (1975), Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977), San Antonio Independent School District v. Rodriquez, 411 U.S. 1 (1973), and Milliken v. Bradley, 418 U.S. 717 (1974)—that in your view, “solidified the power to exclude outsiders through zoning ordinances and other land use devices even where such localized decisions clearly and negatively affected regional housing markets” and “affirmed the sanctity of jurisdictional borders within which local powers are exercised, and defended localities’ presumptive power not only to retain local control of education but of school finances—even if doing so produced gross fiscal disparities among municipalities.” You admit that what you call localism “others call local control (or more formally ‘home rule’), that “localism is a fancy word for the expression of a community’s values, a pure form of democracy that is the last thing we should curtail,” and that you are “not an enemy of local participation, and many local functions can remain without promoting the constant competition to exclude undesirable uses and people.” What about localism is bad, or is something about regional equity better?
Localism per se is not bad. It really can be the operational framework for participatory democracy at the highest level. Localism really may be the essence of empowerment. Unfortunately, localism begins with theoretical equality and quickly moves to dramatic inequality. Communities do not attempt to actualize themselves with equal political and economic resources. Our system of local controls promotes competition among municipalities. We expect winners and losers. We hope that the disparities are not overwhelming. But they have become so. A lot of this has to do with what communities that have control over their destinies value and devalue. Our system promotes property values, excellent schools, a strong tax base, low density, and when you think about it, homogeneity. It devalues racial and economic inclusion, affordable housing, and integrated schools—not just 50 years ago. The data clearly shows. Even today. The difference between now and 50 years ago is de jure discrimination. Localism, though facially neutral, has produced the same demographic as 50 years ago in terms of exclusion. Constitutionally, the courts have blessed these widely disparate arrangements because they are not deemed to violate equal protection. Missing, however, is any serious consideration of equity or efficiency, and it is against those two principles that localism has to be amended and measured. The costs of the status quo are just too high.

Elsewhere in The Price of Paradise, you state: “Generations of inequitable localist policies have favored the places currently occupied by a fortunate few over those of the emerging majority. This distribution of public resources is unfair, unreasonable, and unsustainable.” Why is it unfair, unreasonable, and unsustainable?
These localist policies have produced opportunity inequality that is far more profound and consequential than income inequality. The communities left behind by bad policies supported by ill- informed laws are the emerging majority of our school-age and labor-force populations. We need their success. Policies that thwart that are unreasonable and unsustainable. But what makes it unfair is that we know that people in those communities are getting a raw deal based mainly on the accident of residency. And when we fail to change something that is fundamentally unfair, it will be understood as injustice and we all will reap the consequences of injustice.

I would like you to expand on your thoughts about Mount Laurel and Fair-Share Housing, and regional contribution agreements that were repealed by the New Jersey legislature in 2008. Rutgers Law School has published a good summary of the Mount Laurel litigation. (“The first Mount Laurel decision, Southern Burlington County N.A.A.C.P. v. Township of Mount Laurel, 67 N.J. 151 (1975), attacked the system of land use regulation in place in the Township of Mount Laurel on the ground that low and moderate income families were unlawfully excluded from the municipality. In the decision, the N.J. Supreme Court held that zoning ordinances which make it physically and economically impossible to provide low and moderate income housing were unconstitutional. This case is known as ‘Mount Laurel I’ to distinguish it from subsequent litigation. In Mount Laurel I, the Court set forth important guidelines for implementing the doctrine. However, their application to particular cases was complex and the resolution of many questions left uncertain. Was it a ‘developing municipality’? What was the ‘region’ and how was it to be determined? How was the ‘fair share’ to be calculated within that region? Other questions were similarly troublesome. When should a court order the granting of a building permit (i.e., a builder’s remedy) to a plaintiff-developer who has successfully challenged a zoning ordinance on Mount Laurel grounds? How should courts deal with the complicated procedural aspects of Mount Laurel litigation?”)

In the last chapter of your book, you state this: “The New Jersey Supreme Court employed most of the principles of metropolitan equity in its initial design of the Mount Laurel doctrine in 1975 and its subsequent codification by statute in the New Jersey Fair Housing Act of 1985. For all the flaws in execution and the myriad political attempts to reverse it, the doctrine spells out a theory of progressive mutuality for all to emulate (a few, but not many, states have). Fair-share housing obligates all municipalities—metro area by metro area—to provide their administratively determined share of the regional need for affordable housing. Connected to those obligations must be affirmative responsibility to market those housing choices to eligible populations in those very places where they are presently concentrated . . . . An improvement over many existing plans would be to designate some of the fair share housing allocation to local schools to better accommodate the costs of additional students.”

From a metropolitan equity standpoint, how would you like to see Fair Share Housing addressed?
Fair Share Housing is perhaps the central tenet of metropolitan equity. As an advocate, I would like to see municipalities provide, promote, and permit roughly equal to their regional obligation for such housing. This just makes basic sense. Not doing so is fundamentally unfair and inefficient. I would like to see a greater political appreciation of why this is the right thing to do. Mt. Laurel has been criticized rightly for doing two things wrong. First, for only nibbling at the edges of race and therefore creating localist loopholes and, secondly, for never developing social movements or broader political buy-in by the residents that affordable housing is a mutually beneficial thing to have. Fair Share Housing has not been adequately promoted and defended. Better data on how it works, who it helps, and what it doesn’t do would help.

I have to confess that The Price of Paradise was not a light intellectual lift. It really was an excellent “multilayered exploration of the legal, economic, and cultural forces that contribute to the squeeze on the middle class, increasing disparities in income and wealth, and environmentally unsustainable patterns of growth and consumption.”
Thank you very much. It was a challenge to write about common themes, like expansion of the middle class, the problem of constricted mobility in a way that respects our intuitive knowledge but which also introduces the complexities of law and social science. I tried to write a conversation but it was a difficult conversation.

Keywords: litigation, access to justice, David Troutt, The Price of Paradise, Rutgers Center on Law in Metropolitan Equity, CLiME, regional equity

Ronald W. Brown is an editor of the Access to Justice Committee newsletter.

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