                                  T H E

                               Z E P H Y R

                      __     M A G A Z I N E
                     {__]++++++++++++++++++++++++++[]
                     Issue #51                 1-9-87

                A weekly electronic magazine for users of
                            THE ZEPHYR II BBS
                        (Mesa, AZ - 602-894-6526)
                    owned and operated by T. H. Smith

                        Editor - Gene B. Williams

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                                (c) 1988

    THIS ISSUE:

       It's about time - past time - for the new issue. However,
    thanks to Chris we have a very interesting conversation going
    on. If no one objects, I'll let it run for a while longer (or
    until interest dies down).
       For the sake of efficiency, I've taken the main thread and
    have turned it into a summary. The messages were killed off.
    This both makes room for additional posts and makes it easier
    for newcomers to take part in what is going on.
       Fair warning. The discussion was beginning to fall into a
    name calling contest. That will not be allowed.

                           AGE DISCRIMINATION

       The story began when Chris Mitchell gave us a brief rundown
    on a story in the Mesa Tribune, Sunday, January 3, 1988.

      "Roland Schirg and his wife, Clara, said they agree with the
    zoning ordinance that means they must move out of the Dreamland
    Villa community in an unincorporated area on Mesa's east side."

    NOTE: Neighborhood Pro, who is just as his name implies, a
    professional in real estate, let us know that the reporter was
    in error - that this is not a case of a zoning ordinance but
    a deed restriction.

       The basic story was;
       The daughter of a relatively elderly couple, and her husband,
    ran into bad times. She was pregnant. The young couple moved in,
    temporarily, with her parents in their home in Dreamland Villa
    (located in East Mesa, roughly between Higley and Power, and
    between University and Adobe).
       The husband took virtually every cent the young couple had and
    headed for California, supposedly to try to get back on his feet.
    Instead he decided that the marriage was over.
       Meanwhile, the young woman had a child, and nowhere to go.
       Dreamland Villa is a retirement community. The homes have
    deed restrictions attached which state that no one under 18 can
    live there for longer than 3 months. The new mother and her
    child had been there longer than this, in violation of the deed
    restriction. Consequently, the other people in Dreamland Villa
    asked them to leave, then later drew up a petition to force them
    to sell the house.
       The Shirgs attempted to sell the home but couldn't find a buyer.
    The Dreamland Villa petitioners claimed that the reason was because
    they were asking an unreasonable amount for the home. The county
    was brought into it, and the Shirgs were given 30 days to vacate.

       The original question involved the legality of what is going
    on there. A few users began to pull out magic phrase, "it's
    unconstitutional."
       The fact is, it's neither illegal nor unconstitutional. From
    a legal stand, the Shirgs have violated the law (in a modest
    and totally uncriminal way). The right to discriminate on the
    basis of an arbitrary minimum age has even been upheld by the
    court system.

       Maybe this should be explained. (Please pay attention so we
    can get this point cleared up once and for all.)
       For something to be unconstitutional it has to violate a
    portion of the Constitution.
      A good example is the right to vote. In 1870 the 15th
    Amendment went into effect, which says, "The right of a
    citizen of the United States to vote shall not be denied
    or abridged by the United States or any State on account of
    race, color, or previous condition of servitude."
       Up to that point it was perfectly legal and constitutional
    to deny the right of vote to a black, an Oriental or to
    anyone who was, or who had been indentured. After passage,
    it was still legal and constitutional to deny the right to
    vote to women. THAT didn't become unconstitutional until
    1920 (from the 19th Amendment).
       There is virtually nothing in the Constitution about age,
    other than minimum ages for certain offices. Consequently,
    deed restrictions based on age are not unconstitutional;
    although it may come about one day in the future.
       So, yes it's legal. And no, it's not unconstitutional.

       What we have, then, is a moral or ethical question. An
    act that is legal isn't ALWAYS ethical. That's why laws
    continue to change. An act that is presently within the
    bounds of the Constitution may, in the future, be declared
    as unconstitutional, usually by the adding of yet another
    amendment to the Constitution.

       On the one side, there are obvious times when age restrictions
    must apply. I think it was Lloyd Pulley who first brought up the
    example of a 2-year-old voting or getting a driver's license. In
    our Constitution age *is* mentioned - by setting certain minimum
    age requirements to hold certain offices. The idea behind it was
    that someone older has more experience and is thus better able to
    handle the duties of that office.
       The age limits set were arbitrary. Even the law makers no doubt
    realized what Chris (and others) have brought out - that there are
    50-year-olds who need to be spoonfed, and there are 10-year-olds
    who could be effective Presidents. What has happened is that certain
    general limits were set - arbitrarily - based on general tendencies.
       The average 10-year-old is NOT capable of running this country.
    Nor is the average 21-year-old. The average 10-year-old can't
    safely handle a car.
       Limits were set because there had to be a drawing line.

       On the other side it can be pointed out that laws are meant
    (at least in theory) to protect the general populace. It would be
    unsafe to the general public to allow the average 10-year-old to
    take a car out into traffic, for example.
       A deed restriction involving a minimum age has nothing to do
    with public safety. It has to do with personal comforts of one
    group versus another.
       And there it can be pointed out that age restrictions are
    discrimination just as would be (and have been) restrictions
    against race, sex, creed, etc.
       We have in Dreamland Villa a group of retirees (basically) who
    are uncomfortable around young children. The deed restriction was
    put into effect because, as a group, they preferred to live "among
    their own kind."
       The effective point is again a drawing line. If an elderly
    person can restrict the young when the only issue is personal
    preferrence, can't someone else restrict a race because they are
    uncomfortable around blacks (for example)?

       Then we go back to the first side.
       The people of Dreamland Villa have rights, too. They have the
    right to live as they want. They paid good money for their homes
    and should be able to have some say in who their neighbors are.

       The second side counters with the same argument - where is
    the drawing line? I paid good money for my home. (Never mind
    how much, but a few of you have seen it and know what I mean.)
    Should I then have the right to say that my neighbor can't sell
    his house to a black family? Or a Jewish family?
       As I said in an earlier post (one that was almost entirely
    ignored), when a black family moves into a neighborhood, the
    property values tend to go down. It used to be much worse. When
    the antidiscrimination laws first came into effect, a home could
    lose as much as half its value. In some parts of the country
    prejudice is so high that this is still true.
       Having a child move in next door does nothing to property
    values. Having a black move in does.
       More, it can be pointed out that having young children in the
    neighborhood does nothing for the crime rate, while having blacks
    move in tends (on a nationwide scale, and assuming you're good
    enough at twisting statistics) causes the crime rate to go up.

       Side One has said, "They made their bed, now let them lie
    in it." The idea is, justifiably, the Shirgs knowingly agreed
    to the deed restriction. (For that matter, they *still* agree
    to it and are simply asking for more time. Just read the quote
    above.)
       There is a valid contract, and one the family agreed to
    uphold. When someone signs a contract, with full knowledge of
    all terms and conditions, they should have no right to later
    object to those terms and conditions.

       On the other side examples were pointed out where this is
    obviously not the case, nor should it be.
       You sign a contract in which you are to be given all the
    conveniences of life for 5 years. At the end of that 5 years
    you become the property of the other person. He can sell you,
    beat you, kill you, dismember you piece by piece. You knew
    all that before you began. And you signed the contract knowing
    full well that 5 years later this guy would chain you up in
    the base and start clipping off the joints of your fingers for
    fun.
       Now obviously this is taking the example to an extreme. The
    people of Dreamland Villa aren't demanding that the mother and
    child be sacrificed on an altar - they just want them thrown
    out. But it remains a matter of degree.
       Chris and I could sign a contract wherein he washes my car
    once a week for a year after which I turn over to him the deed
    for my house. It's perfectly legal. Stupid (on my part), but
    legal.
       The question is, is it ethical? Should such a thing be
    allowed to happen?

       There is one more point that should be made. It's another one
    I tried to get across earlier.
       At present, age discrimination, by law and by Constitution,
    works in one direction only. You can legally put in a deed
    restriction that doesn't allow residency for someone beneath a
    certain age. You CANNOT do so to restrict people *over* a
    certain age.
       There are laws now that force an employer to ignore the
    question of maximum age while hiring employees. You cannot
    legally refuse to hire a person on the basis of race, creed,
    sex or maximum age (up to 65, I think it is). It's a good
    law, in my opinion. A necessary one (also in my opinion). It's
    also one-sided.
       For a law to be just, it has to work in both (or all) directions.
       Take another national problem. People are living to a greater
    age these days. There are more and more 70 and 80 and 90 year olds
    driving their vehicles on the road. As a general tendency, the
    older a person becomes, the less safe they are in handling a
    vehicle.
       A famous case involved a woman in Florida who drove her car
    over a bus stop full of people, killing 8 and hospitalizing 6
    more. She'd blanked out. Didn't even remember doing it. And it
    wasn't the first time it had happened.
       In the same state a 92-year-old man had to be led to stand
    before the judge. He couldn't see well enough to get there on
    his own, nor could he hear anything the judge was saying. He
    couldn't even respond to questions because he couldn't understand
    even the words he was hearing. Yet he drove to the courthouse - and
    drove home afterwards, still holding a valid license.
       Several times efforts have been made to require mandatory driving
    tests for all people over the age of 65. It makes sense and would
    be good for public safety. Yet each time the effort is defeated
    on the basis that it would be age discrimination. If mandatory
    testing is required, it has to be required for everyone or no one.
       So you see, age discrimination works in one direction only,
    and irregardless of public safety.

       Okay, okay. So I editorialized a bit. But in my opinion that's
    really the key to the whole thing.
       Minimum age restrictions are legal and constitutional.
       Maximum age restrictions are not.

       The Shirgs definitely signed the contract and understood and
    agreed to the minimum age deed restriction. This restriction is
    perfectly legal.
       That doesn't make it right.

       Here's what we have:
       Dreamland Villa is a retirement community, designed so that
    the relatively elderly can be with their own kind and live in
    peace and quiet. A deed restriction exists which clearly states
    that anyone under 18 cannot stay there for a period longer than
    3 months. All this is legal.
       The Shirg family knew, understood and still agrees to that
    condition. Unfortunately they find themselves in a sticky
    situation in which they must now vacate within 30 days. In a
    very real sense, they are about to have their home taken away
    from them, possibly without recompense, because their daughter
    had a baby, because they care too much for her and child to
    turn her into the street, and because they haven't had the time
    to find other living arrangements.
       As Neighborhood Pro can tell you, it isn't always easy to
    sell a house. (Or ask Bob Eastman, for that matter. He knows,
    too.) Just about the only way you can get out in 3 months or
    less is to almost literally give the house away.
       On the other hand, and as was pointed out, if the Shirgs could
    buy a motorhome, they could have set up the daughter and child
    in an apartment for a few months.

       In my opinion, none of this is all that important.
       What IS important is, where is that drawing line? And why is
    in one direction only?
       If laws are made to protect the public, how can a ruling such
    as this be in effect while a 92-year-old man can't have his
    license pulled?
       If a 10-year-old isn't allowed to drive because he *may* not
    be safe, why is it illegal to test the elderly who are often
    decidely unsafe?
       Personally I think the issue at hand goes far beyond even
    age discrimination. It takes us into side fields of laws in
    effect that protect the few at the expense of the many.

    UNTIL NEXT TIME

       I'd like to thank Chris - almost everyone, really - for making
    this sad affair come to light. There has been a nice exchange of
    ideas. Until just recently it showed that people can disagree and
    still not resort to the stupidity of name calling.
       And once again that same reminder - if you can't post without
    calling a name, you're not really qualified to post.
       It's fine to disagree. But those with some smarts will have
    something more concrete to add other than, "You're a pinhead."
    Maybe those who find this necessary should watch Archie Bunker
    for a while?
       Zephyr Magazine has been around for some 5 years now. NEVER has
    it become a war board. It won't now.

       Next time?
       I have a piece of fiction in mind. One appropriate to the
    present issue.

Zephyr Magazine is © Gene Williams. All rights reserved.