THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: Wednesday, July 13, 1994 TAG: 9407130003
SECTION: FRONT PAGE: A14 EDITION: FINAL
TYPE: Opinion
SOURCE: By MICHAEL FARRIS
LENGTH: Medium: 97 lines
Stephen Breyer's nomination to the U.S. Supreme Court should be opposed, because his opinions - one in particular - reveal that he loves government order far too much and, consequently, loves freedom far too little.
Freedom and order are competing interests in a free society. We reject the notion of absolute freedom as anarchy. But we even more strongly reject the notion of absolute order as tyranny.
The government institution with the most crucial role in balancing the competing interests of freedom and order is the Supreme Court. The president and Congress are too often driven to exert power for the ``good'' of establishing order. It falls upon the Supreme Court to curtail the excesses of government power in order to protect the freedom of all.
The Supreme Court has wisely developed a doctrine that holds that all claims of freedom are not equal. Fundamental freedoms - freedoms of speech, press and religion, etc. - are given higher levels of protection than other claims for constitutional protection.
Breyer wrote a troubling decision involving a fundamental freedom - the free exercise of religion. In New Life Baptist Academy vs. East Longmeadow School District, Breyer's extensive opinion greatly favors government power over a legitimate First Amendment claim.
Public-school officials wanted to enter a private Christian school to monitor lesson plans, evaluate teachers, review curriculum and observe instruction. Officials demanded the right to ``approve'' much of what went on in the religious school even though the school did not receive one cent of government funding. If anything did not meet with the government's ``approval,'' the private religious school would be forced to comply with the officials' demands. The officials had no written government standards for any of these items, including teacher qualifications or curriculums. It was all simply a matter of the bureaucrat's discretion. Did the officials like what their competitors were doing? If not, they could force a change.
The federal district court which heard this case wrote an eloquent opinion, ruling that this massive invasion of a religious school was a violation of the First Amendment. Fundamental freedoms should never be subject to the discretion of local government officials. The court ruled that the private school's willingness to offer standardized achievement test scores was a far more objective standard to demonstrate that the children were indeed learning.
Breyer disagreed. A fair reading of Breyer's opinion reveals he was totally unwilling to take any risk to give freedom a chance to work. He was far more comfortable with a massive invasion of this private religious school by government officials armed with arbitrary discretion to ensure that everything was in good ``order.''
In the 1920s, Oregon - at the insistence of a variety of groups including the Ku Klux Klan - tried to ban private education so that all children would receive a quality and uniform education. In Pierce vs. Society of Sisters, the Supreme Court ruled Oregon's action unconstitutional and declared: ``The fundamental theory of liberty upon which all governments in this Union repose, excludes any general power of the state to standardize its children by forcing them to accept public instruction from public school teachers only.''
In another Oregon case from the 1930s, Hague vs. CIO, 307 U.S. 496 (1939), the Supreme Court overturned a law which gave a local government official total discretion to ban speeches in a park if he thought any individual speech would create a disturbance or disorderly assembly. The court said that government officials should never be given the power to regulate fundamental freedoms based upon their ``mere opinions.''
Breyer's views seem to be much more in tune with the political views of Oregon officials in the first half of this century, who were intent on demanding order and were more than willing to sacrifice freedom. His opinions bear no relationship to the Supreme Court's lofty efforts to secure the liberty which stopped the Oregon officials' quest for excessive order.
Breyer not only opted for a stingy view of religious freedom for religious schools, he went so far as to clearly imply that it is constitutional to ban home education. That view simply does not square with the philosophy of the Supreme Court's decision in Pierce.
Breyer's excessively statist views of private-school freedoms make his nomination to the Supreme Court a matter of grave concern for those who choose private education. For home educators, his views go so far beyond the pale that he must be viewed as totalitarian.
Only 15 percent of the American public have their children in private education. Only 2 percent of the American public are home educators. But I would submit that Breyer's nomination to the Supreme Court should be opposed by a much broader section of the population. If he is willing to grant government officials complete discretion to regulate or ban one fundamental freedom, there is no reason to assume that he will be benign with other freedoms.
Breyer's other opinions are not as stark as his decision in New Life. But there is a steady theme. Given a choice between order and freedom, Breyer tips the balance in favor of government demands for order far more often than he sides with the forces of freedom.
Government power is at an all-time high. Freedom is constantly under siege. We do not need anyone on the Supreme Court who will be a regular rubber stamp for government power grabbers. MEMO: Mr. Farris is an attorney and the president and founder of Home School
Legal Defense Association in Paeonian Springs. by CNB