One must applaud Owen Fiss’s admonishment to end, lock stock and smoking barrel, the isolation and disempowerment that currently characterizes life in America’s urban ghettos. Likewise Professor Fiss’s description of the deplorable history of state-sanctioned racist policy that created and maintained the urban ghetto is a necessary but all-too-often ignored part of any policy discussion that addresses the conditions of the urban poor. This history should be part of any high-school education, but distressingly few Americans know of it or care to learn. And I agree wholeheartedly with Fiss’s argument that the compulsory isolation of the ghetto is morally analogous to Jim Crow segregation and that the imperative that society find and implement an effective remedy is analogous to the imperative to desegregate public schools that was (partially) addressed in Brown v. Board of Education.

Better yet, Professor Fiss is not content simply to describe the problem, as so many have already done. He insists that justice demands a viable solution, and his proposal is as bold and sweeping as the challenge is pervasive and daunting. Fiss’s proposal: a comprehensive, although voluntary, program of relocation, funded by the state and available to anyone living in a sufficiently distressed neighborhood. Fiss faces unflinchingly the enormous cost of such a program: he recognizes that not only moving expenses for millions of families but also sizable rent subsidies of indefinite duration would be required to insure that low-income families could move to middle- and upper-income neighborhoods.

Still, it is not clear that Fiss’s proposal will serve all of the people he hopes to help. Fiss correctly notes that the blacks who benefited most from civil rights reform were those already well poised to do so--those with skills and education. These successful blacks left their former neighborhoods in what William Julius Wilson calls "black middle class flight," exacerbating the isolation and powerlessness of those left behind in the ghettos. We could expect a similar result if Fiss’s proposal were enacted: those inner-city poor with some skill, experiences outside the ghetto, mainstream acculturation, and internalization of the work ethic will be more likely to take the initiative and leave the ghetto, and more likely to succeed when they do. Those worst off, both in terms of wealth and, more importantly, in terms of skills, will stay behind or when they try to move will meet with failure and alienation. They will then most likely retreat to their former neighborhoods or form new enclaves in the suburbs that will rapidly become the suburban ghettos Fiss hopes to avoid.

In this scenario, Fiss’s reform will of course have helped those who move and succeed enormously. But it will leave an even more concentrated, even more desperate, and even more isolated super-underclass behind.

All of this is to say that Fiss’s solution cannot be the only solution. Fiss criticizes William Julius Wilson’s suggestion that public policy revitalize inner city communities through WPA-style public investments and jobs programs. He notes that such an approach fails to reckon with the lack of work ethic that, according to both Fiss and Wilson, is pervasive in the ghetto. But Wilson’s proposal does have the merit of incrementalism: he envisions providing steady work for the poor where they live and are, if not comfortable, at least familiar. Fiss by contrast demands that these socially isolated poor not only develop a work ethic and mainstream social skills sufficient to win them jobs in the private sector of a middle-class suburb, but also that they do so while simultaneously acculturating themselves to a new social milieu.

Moreover, there is a serious omission in Fiss’s analysis of the ghettoization dynamic. Fiss asserts that problem of ghettoization is structural and self perpetuating: social and economic isolation promote joblessness, despair, and socially dysfunctional behavior, which promote poverty, which insures social and economic isolation. But he omits a significant element of that structure: the laws governing the very middle-class and wealthy suburbs he hopes will become welcoming havens for the underclass. Wealthier suburbs have strong incentives to exclude poor urbanites and the means by which to do so, both supplied by the legal regime of American local government.

Incentives? In most states, American cities and towns fund public services primarily through property taxes. They also are entitled to limit access to those services to residents of the jurisdiction. This means that cities have an overwhelming incentive to encourage in-movers who will increase the value of property (and therefore tax revenues) and consume little in services, and to discourage in-movers whose presence will decrease property values and who will need a lot of public services. It scarcely needs to be said that the urban poor fit the latter description.

Means? Although American local governments do not have explicit immigration policies, they do have broad powers to restrict land uses. By excluding all or most high density or multi-family housing, middle class and wealthy suburbs can effectively screen out low income potential residents by prohibiting the housing that they can afford. Local governments also can and do resist regional public transportation, halfway houses, group living arrangements, and rehabilitation centers--all services that many low income people require in order to make the transition from troubled or dysfunctional lifestyles to success in the job market.

The engine of ghettoization is not entirely internal to the ghetto, nor are its root causes exclusively historical. Although Fiss recognizes the responsibility of the explicitly discriminatory policies of the past for the present reality of the urban ghetto, he does not consider the salience of present day public policy in reproducing the ghetto and reinforcing its borders. While Fiss’s proposal is laudatory, it is incomplete. Without the reform of local policies that reinforce the isolation of the ghetto from outside, it would be like running the furnace with the windows open.

Richard Ford is professor of law at Stanford University.

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