William J. Brennan, Jr.

“ Thus the Court's position necessarily presumes that a district court, while seeking to coerce compliance with a consent decree promising to implement a specific remedy for a constitutional violation, must take far greater care to preserve the "normal legislative process" (balancing only public interests) for local legislators than it must take to preserve the normal and analogous decisionmaking process for executive officials. ”

“ I agree with the Court that, given city council approval of the city's Consent Decree committing itself to pass legislation implementing the Housing Remedy Order, Judge Sand did not abuse his discretion by binding the city to its own commitment. Ante, at 276. Moreover, the city repeatedly objected to creation of an independent affordable housing commission, and because this remedy would have completely divested the council of all legislative power in the housing field, it is difficult to characterize it as a less intrusive means of remedying the discrimination. ”

“ To encourage legislators best to represent their constituents' interests, legislators must be afforded immunity from private suit.
But once a federal court has issued a valid order to remedy the effects of a prior, specific constitutional violation, the representatives are no longer "acting in a field where legislators traditionally have power to act." ”

“ In contrast, city sanctions are designed to encourage legislators to act out of concern for their constituents' presumed interest in a fiscally solvent city, ibid., a decisionmaking process in which the councilmembers merely weigh competing public interests-"the sort of calculus in which legislators engage regularly." ”

“ Having considered the evidence in its entirety, this Court is fully persuaded that the extreme concentration of subsidized housing that exists in Southwest Yonkers today is the result of a pattern and practice of racial discrimination by City officials, pursued in response to constituent pressures to select or support only sites that would preserve existing patterns of racial segregation, and to reject or oppose sites that would threaten existing patterns of segregation. ”

“ But I worry that the Court's message will have the unintended effect of emboldening recalcitrant officials continually to test the ultimate reach of the remedial authority of the federal courts, thereby postponing the day when all public officers finally accept that "the responsibility of those who exercise power in a democratic government is not to reflect inflamed public feeling but to help form its understanding." ”

“ As a result, even assuming that each recalcitrant member sought to avoid city bankruptcy, each still had a very strong incentive to play "chicken" with his colleagues by continuing to defy the Contempt Order while secretly hoping that at least one colleague would change his position and suffer the wrath of the electorate. As Judge Sand observed, " [w] hat we have here is competition to see who can attract the greatest notoriety, who will be the political martyr . . . without regard to what is in the best interests of the City of Yonkers." ”

“ McCormack, 395 U.S., at 505, 89 S.Ct., at 1955 ("Freedom of legislative activity . . . [is] fully protected if legislators are relieved of the burden of defending themselves") . It is unclear, however, why the Court repeatedly insists that the individual city councilmembers were not specifically enjoined by the Housing Remedy Order to participate in the remedial process. ”

“ Local legislators, for example, may not frustrate valid remedial decrees merely because they or their constituents would rather allocate public funds for other uses. [10] More to the point here, legislators certainly may not defy court-ordered remedies for racial discrimination merely because their constituents prefer to maintain segregation: " 'Public officials sworn to uphold the Constitution may not avoid a constitutional duty by bowing to the hypothetical effects of private racial prejudice that they assume to be both widely and deeply held.' " Palmore v. ”

“ Councilmember Spallone declared openly that "I will be taking on the judge all the way down the line. I made a commitment to my people and that commitment remains." Id., at 457-458. Moreover, once Yonkers had gained national attention over its refusal to integrate, many residents made it clear to their representatives on the council that they preferred bankrupt martyrdom to integration. As a contemporaneous article observed, " [t] he defiant Councilmen are riding a wave of resentment among their white constituents that is so intense that many insist they are willing to see the city bankrupted. ”

“ Because the Court's ex post rationalization of what Judge Sand should have done fails to do justice either to the facts of this case or the art of judging, I must dissent.
* For the past four decades, Yonkers officials have relentlessly preserved and exacerbated racial residential segregation throughout the city. The population of black and Hispanic residents grew from 3% in 1940 to 19% in 1980. Over 80% now reside in Yonkers' southwest section, and this channeling did not happen by chance. ”

“ Starting in 1949, city officials initiated a series of low-income housing projects designed to serve the housing needs of this growing population; but city officials concentrated 96.6% of these projects in or adjacent to the southwest section, preserving east and northwest Yonkers as overwhelmingly white communities. ”

“ First, the opening proviso of the Housing Remedy Order, which binds the "City of Yonkers, its officers, agents, employees, successors, and all persons in active concert or participation with any of them" to refrain from future discriminatory acts, can easily be understood to refer equally to all substantive provisions of the Order. Second, the Consent Decree, specifically approved by the city council, contemplated that the city would "adopt legislation" ”

“ In § 17 of the Consent Decree, the city expressly agreed to adopt legislation (referred to as the Affordable Housing Ordinance) conditioning the future construction of multifamily housing in Yonkers on the inclusion of at least 20% subsidized units, and providing for such private development incentives as zoning changes, tax abatements, and density bonuses. The city expressly agreed to enact this legislation within 90 days after entry of the Consent Decree. ”

“ Deference to the court's exercise of discretion is particularly appropriate where, as here, the record clearly reveals that the court employed extreme caution before taking the final step of holding the councilmembers personally in contempt. Judge Sand patiently weathered a whirlwind of evasive maneuvers and misrepresentations, see supra, 284-289; considered and rejected alternative means of securing compliance other than contempt sanctions; [5] and carefully considered the ramifications of personal fines. ”

“ Judge Sand denied this motion, instead negotiating with the city for appointment of an outside housing adviser to help the city identify sites for the 200 units of public housing and to begin drafting a proposed long-term plan for the additional subsidized units.
The adviser recommended eight available sites for housing. The city council responded by passing a resolution conditioning its support for the adviser's general plan on a number of terms drastically limiting the scope and efficacy of the remedy, including (1) staying all construction until the city had exhausted all appeals ”

“ The Consent Decree also set a goal of 800 units of subsidized housing to be developed over four years in conjunction with market-rate housing developments, and it committed the city to specific actions needed to encourage private developers to build such housing. ”

“ Most Runyon Heights streets terminate in a dead end just below this strip, essentially sealing off the minority community from the surrounding white neighborhood.↑ The vote was 5 to 1; all four petitioners were in the majority.↑ While this vote terminated the contempt sanctions, it by no means heralded a lasting commitment on the part of the city council actually to follow through on the remedial obligations imposed by the Affordable Housing Ordinance. Since this date, no new public housing has been built in Yonkers. ”

“ The original deeds for many Homefield properties contained restrictive covenants prohibiting the sale of such properties to minorities, and as Runyon Heights developed, the Homefield Neighborhood Association purchased and maintained a 4-foot strip of land as a barrier between the streets of the two neighborhoods. ”

“ Moreover, acutely aware of these political conditions, the city attorney repeatedly warned Judge Sand not to assume that the threat of bankruptcy would compel compliance. See, e.g., id., at 410 (threatening to bankrupt city "punishes the innocent" but "doesn't necessarily coerce compliance by the council members") ; id., at 415 (bankrupting Yonkers "is indeed an unfortunate result that may obtain and that is exactly why we are urging that the city not be fined itself") . See also City of Yonkers' Reply Memorandum of Law in Support of Stay of Contempt Sanctions in No. ”

“ B1, col. 5, and Spallone was elected in a "race [that] was widely seen as a referendum on the housing desegregation plan." Ibid. Petitioners Chema and Fagan were reelected to the council, and the new member filling Spallone's vacated seat also opposes compliance; thus "candidates opposed to the housing plan appea [r] to hold a majority." Ibid. Whether Yonkers officials will ever comply with Judge Sand's orders attempting to remedy Yonkers' longstanding racial segregation remains an open question.↑ See also, e.g., Sheet Metal Workers v. ”