Friday, October 23, 1998

Judicial activism tempts conservatives

By George Will

MADISON, Wis. -- Scott Southworth is a mild-mannered 26-year-old from the small Wisconsin town of New Lisbon. However, his lapel pin -- two tiny feet, symbol of the right-to-life movement -- announces he is a Christian conservative not bashful about announcing his convictions in an uncongenial setting.

He is a graduate of the University of Wisconsin, a museum of liberalism, and of its law school, where he learned the joys of litigation. Now he is inflicting his legal learning on his alma mater. And he is illustrating the temptation of judicial activism for conservatives.

While a student, he was annoyed that portions of the mandatory student fee he paid were distributed to many organizations -- for example, those promoting homosexual and liberal causes -- whose agendas appall him. So he sued, and his case, successful so far, seems headed for the Supreme Court.

His cause is just, but raises a question: Do conservatives really want government -- meaning, inescapably, courts -- delivering so much justice?

A federal court has said he has a First Amendment right not to pay fees used to subsidize ideologies offensive to his religious and personal beliefs. The court enjoined the university from collecting from any student any fee that subsidizes anything offensive to that student.

This is a recipe for an administrative nightmare, and an incentive for universities to withdraw from funding any group potentially offensive to anyone. Which pleases Southworth.

He says government has a right to speak for itself, as when the Wisconsin Legislature denounced the KKK. However, he says government does not have a right to force people to fund offensive speech by others. A federal court siding with him has enunciated a broad new First Amendment right of conscience.

Conservative protests about the uses of student fees are roiling many universities, which respond that academic freedom, properly understood, requires respecting their broad discretion to create a stimulating learning environment. This requires "diversity," hence the wholesome cacophony of subsidized advocacy.

Conservatives rejoin, often correctly, that they are turning to courts only because they have been provoked. The problem they say requires judicial remedy is that of universities defining diversity in ways unfriendly to conservatives.

In 1995 conservatives rejoiced when the Supreme Court said the University of Virginia could not refuse to subsidize a Christian magazine devoted to proselytizing. The Court said the university's policy of not subsidizing religious or political activities constituted unconstitutional discrimination based on the content of speech. Southworth favors that decision if Virginia students who are affronted by evangelism, or Christianity, or religion generally, can be exempt from an appropriate portion of the mandatory fees.

But can a conservative be content to have courts controlling universities and other institutions of civil society, permeating their internal operations with government supervision? The unjust treatment of conservatives does not justify their participation in today's reflexive recourse to litigation rather than persuasion -- politics -- to improve their lot. What litigation like Southworth's advances is what Jonathan Rauch of National Journal calls "microgovernment."

Remember Casey Martin, the professional golfer who has a circulatory disorder that makes him incapable of walking 18 holes? The PGA said he could not compete riding in a cart because walking is an essential part of golf. Martin got a court to overrule the PGA, holding that, under the Americans with Disabilities Act, Martin has a right to ride.

It is, Rauch says, an interesting question whether walking is part of golf, but a more interesting question is why government should answer such questions. Such government derogates society's self-governance through nongovernmental institutions, such as the PGA.

Microgovernment's aim, Rauch says, is to use the lever of litigation to pry open every aspect of life so government can fine-tune fairness. Government increasingly polices behavior, monitoring workplace jokes to prevent a sexually "hostile environment" and ordering colleges to set up as many interviews for female as for male athletes.

Southworth's suit should awaken universities from their dogmatic slumbers about "diversity" and the affronts they inflict in its name. But the suit is an incitement to microgovernment, which produces, cumulatively, very big government indeed.

Washington Post Writers Group