Relief from the rigors of politics

February 11, 1996|By George F. Will

ATLANTA -- Hard by the South Carolina border, in Toccoa, Georgia, Waymon Earls, a tow truck driver, and his wife Sharon have started something that demonstrates the deep roots and strong sinews, but also some ambiguities, of today's conservatism.

The Earlses think that they are acting in self-defense. The aggressors who started the fight are the school administrators who, without consulting the Earlses, gave their daughters, ages 14 and 15, a bag of condoms, prescriptions for birth-control pills, Pap smears and tests for AIDS.

Last June the Athens (Ga.) Banner-Herald quoted the Toccoa district school superintendent: ''Schools are now taking over responsibilities that aren't being covered in the home. When parents won't do it, we have to.'' Won't do what -- give their teen-agers condoms? The Earlses are seeking monetary damages for what they say were violations of school rules, state law and the state constitution.

Furthermore, they allege violations of their rights under the U.S. Constitution, including the right to the free exercise of religion (which they say encompasses child rearing) and 14th Amendment ''due process'' rights to parental sovereignty.

The Earlses say they are just trying to get policy to conform to precedents. They cite a line of cases beginning with two from the 1920s. In one the Supreme Court overturned a Nebraska law (passed as a result of World War I hysteria) prohibiting foreign-language instruction to school children. The court said the prohibition impermissibly infringed parental child-rearing rights.

In the other case, the court overturned an Oregon law requiring parents to send children to public schools. The court said the law unreasonably interfered with the liberty of parents ''to direct the upbringing and education of children under their control.''

These cases were examples of ''substantive due process.'' Conservatives who stress judicial restraint have generally opposed wringing policy substance, even conservative substance, from a clause they say has merely procedural meaning.

But the Southeastern Legal Foundation, a nonprofit law firm spoiling for fights on behalf of conservative causes, argues that for too long liberals have been defining the substance of substantive due process, so conservatives should get into the game. Some organizations practicing conservative judicial activism -- yes, many conservatives do not consider that an oxymoron -- have been in the game since the early 1970s, when a California lawyer named Ed Meese helped to found one.

Regrettable zest

One can sympathize entirely with the Earlses and applaud the social policies they advocate while regretting the zest with which some conservatives are succumbing to the temptation to seek judicial relief from offensive policies. That often means judicial relief from the rigors of politics.

Consider the rapidly spreading movement to pass ''parental-rights amendments'' to state constitutions. The most common formulation is: ''The right of parents to direct the upbringing and education of their children shall not be infringed.'' Those 17 words are rich in potential for breeding litigation about matters that should be settled by legislation, or by processes of political persuasion.

Both politics and social accommodation are discouraged by casting issues in the brook-no-compromise language of rights. Is the parental right to ''direct'' the ''upbringing and education'' of children infringed by school curricula or texts or dress codes that parents disapprove? Do we want to turn every parent's grievance into grounds for suing?

Rep. Steve Largent, R-Okla., has 125 co-sponsors for his ''Parental Rights and Responsibilities Act,'' which says, among much else, that ''no federal, state or local government . . . shall interfere with or usurp the right of a parent to direct the upbringing of the child of the parent.''

It is reasonable to execrate the many governmental provocations, from condom distributions to propagandizing curricula, that move Mr. Largent and such good people as the Earlses to seek to codify parental rights. But there is a competing consideration: It is injurious to democracy to write into law language certain to breed litigation that will draw courts even deeper into the unjudicial business of reviewing and

rearranging the details of social life.

George F. Will is a syndicated columnist.

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