Anarchy in a stately setting

January 07, 1996|By GEORGE F. WILL

WASHINGTON -- Fortunately, the mills of justice do indeed grind slowly. Many courts come to cockeyed conclusions, so it is best that they not come to them quickly.

Consider a case that should have been laughed out of court before battalions of lawyers filed the first cubic foot of briefs, a case that may churn on and on and could come to a remarkable conclusion. If the plaintiffs prevail, America can dispense with elections because judges will determine all social policies.

The trouble began in New York when the Metropolitan Transportation Authority decided to raise subway and bus fares 25 cents to $1.50. Fare increases are not novelties. There have been 10 others since 1966, when the fare was 15 cents. But for 25 years there has been fermenting in American law a concept capable of producing government by judicial whims.

In 1971 the Supreme Court concocted the idea of illegal discrimination by ''disparate impact'' -- discrimination without any intent to discriminate. A utility company was found guilty of violating the 1964 Civil Rights Act because the company's hiring policies required employees to have high school diplomas and a minimum score on a standardized intelligence test.

The violation was partly in the fact (the court airily declared it a fact) that these requirements had no ''demonstrable relationship'' to successful job performance. The more explosive part of the ruling was that the hiring standards were illegal because they had a ''disparate impact'' on minorities.

Straphanger advocacy

Last October a ''disparate impact'' suit was filed against New York's fare increase. Plaintiffs are the New York Urban League, and the Straphangers Campaign, ''a rider advocacy group'' (which wants federal, state and local taxpayers to pay even larger subsidies for subway and bus riders).

They say U.S. Department of Transportation regulations, elaborating the 1964 Act, make the fare increase illegal. They say the increase, in the context of funding decisions for suburban commuter rail lines, adversely affects city riders who, unlike suburban commuters, are disproportionately minorities.

The 1964 act says no one shall ''be subjected to discrimination'' from any recipient of federal funds, which MTA is. Department of Transportation regulations say recipients cannot do things ''which have the effect of subjecting persons to discrimination.'' The plaintiffs find discrimination in the fact that the city transit system will experience a 20 percent fare increase while HTC commuters will pay only 8.5 percent more. That was enough to get a district judge, whose liberalism is as warm and fuzzy as a hamster, to block the fare increase.

An appeals court unblocked it, and told the district judge not to be so slap-- as the case proceeds. Still, the plaintiffs are continuing their quest to establish for city riders a legal right to lower fares. That means inciting a judge to elbow aside city and state elected officials and reallocate transportation dollars for the metropolitan region.

The plaintiffs stress that city riders pay more of their systems' operating costs than do suburban commuters. So the plaintiffs are, in effect, asking a judge to overturn the state law requiring the city transit system and the commuter lines each to be self-sustaining with regard to operating costs.

Ominously, the appeals court faulted the district court for not ''examining the larger financial and administrative picture'' surrounding the fare increases. It said city subway and bus riders ''derive significant but difficult-to-quantify benefits'' from

subsidization of commuter rail lines, including less congestion and pollution than there would be if commuters came to town in automobiles. The appeals court also wondered whether ''the percentage of mean household income'' that city subway and bus riders spend on transportation might be smaller than the percentage spent by suburban commuters.

These suggestions indicate that the appeals court, although relatively prudent (relative to the district judge), is part of the problem, or at least is ensnared in the problem, which is the inevitably murky and capricious business of finding discrimination in ''disparate impacts.''

Should courts really ponder ''the larger financial and administrative picture'' concerning decisions about the pricing of government services? Is it a judicial function to examine the percentage of mean household incomes that particular groups spend on this or that? Or the cash value of lessened congestion?

In this continental nation, almost any sophistry can find a sympathetic court. And when a few judges begin issuing to themselves unrestricted hunting licenses to go after the big game of ''disparate impacts'' from social policies, what policy, from farm subsidies to medical care, will be immune from judicial fine-tuning?

The mere fact that the New York fare case is still alive, and may spawn emulative litigation, suggests that the nation is still slouching toward government by judiciary, which will just be anarchy in a stately setting.

George F. Will is a syndicated columnist.

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