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Published in Print: September 7, 2005, as Roberts’ Education Views to Face Senate Scrutiny

Roberts’ Education Views to Face Senate Scrutiny

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The confirmation hearings that start this week for President Bush’s nominee to replace Sandra Day O’Connor on the U.S. Supreme Court are sure to draw upon tens of thousands of memoranda, letters, and articles concerning him that have been unearthed since July, including many that touch on education.

A new batch of Judge John G. Roberts Jr.’s memos was released last week by the National Archives. They include a memo from 1982, when Judge Roberts was a lawyer in the Department of Justice under President Reagan, in which he expressed some sympathy with the agenda of conservative groups to enact private school vouchers and to “reduce federal regulation of schools.”

President Ronald Reagan greets John G. Roberts Jr. in the Oval Office in 1986, when he worked as a White House lawyer and wrote numerous memos touching on education issues. At center is then-White House Counsel Fred Fielding.
President Ronald Reagan greets John G. Roberts Jr. in the Oval Office in 1986, when he worked as a White House lawyer and wrote numerous memos touching on education issues. At center is then-White House Counsel Fred Fielding.
—Photo courtesy of Ronald Reagan Library

Meanwhile, groups lining up for and against Judge Roberts have also been studying the raw materials of his 25-year career as a White House legal adviser, appellate advocate, and federal appeals court judge.

The opponents have fired their analyses of these materials in a rolling volley over the past couple weeks, starting with the People For the American Way. The Washington-based liberal advocacy organization claims in an Aug. 24 report that Mr. Roberts has consistently taken positions that would “roll back progress the nation has made toward the achievement of equality and opportunity for all Americans.”

The Alliance for Justice, whose membership of 71 mostly liberal organizations includes the National Education Association, concludes in an Aug. 31 report that Mr. Roberts’ record indicates that as a justice he would “lower the wall separating church and state.”

Similarly, an Aug. 29 report by the Americans United for the Separation of Church and State cites briefs Mr. Roberts filed when he was the principal deputy solicitor general, from 1989 to 1993, under President George H.W. Bush.

The briefs asked the Supreme Court to discard the so-called “Lemon test,” a standard from the Supreme Court’s 1971 decision in Lemon v. Kurtzman for analyzing government actions with respect to religion. The test, which bars governments from actions that have a religious purpose or effect, has been applied in cases involving the Ten Commandments, school prayer, and the funding of religious activities in public schools.

A 1990 brief signed by Mr. Roberts argued for a standard that would allow religious activities in public schools as long as they were not coercive to students.

Meanwhile, the American Civil Liberties Union expressed “deep concern” in an Aug. 20 report over the civil rights positions advocated by Mr. Roberts, although it stopped short of opposing his nomination. The ACLU said Mr. Roberts assisted “in undermining school desegregation” when he co-wrote briefs arguing for standards that, it said, “made it easier for school systems to get out from under desegregation decrees that were imposed based on findings of intentional race discrimination.”

Defending the Nominee

Others who have sifted through materials on Judge Roberts argue that one should be wary of drawing strong conclusions about his personal legal views.

The Education (Cases) of John G. Roberts Jr.

Tens of thousands of documents that have been released stemming from the federal service of U.S. Supreme Court Nominee John G. Roberts Jr. will likely provide the jumping-off point for the Senate Judiciary Committee as confirmation hearings get under way this week. The available documents, along with some court filings that the federal appellate judge helped prepare as a government lawyer, address several prominent education issues:

Church and State
In the 1980s, Mr. Roberts wrote memoranda arguing that the federal courts were limited in their power to disallow prayer in public schools. In a 1985 memo, written when he was a White House lawyer, Mr. Roberts said that a Supreme Court decision that struck down an Alabama moment-of-silence law “seems indefensible.” In 1992, when Mr. Roberts was the principal deputy solicitor general, he signed a friend-of-the-court brief that urged the high court to uphold a school district’s practice of authorizing clergy members to deliver prayers at graduation ceremonies.

Title IX
In the early 1980s, as a Department of Justice lawyer, Mr. Roberts took a conservative stance on the federal law that bars sex discrimination in federally funded schools. Commenting on a pending case, Mr. Roberts wrote that he agreed “strongly” with a recommendation not to join the plaintiffs in an appeal of a court ruling that educational institutions that receive federal money in one program, such as the science department, could engage in sex discrimination in another, such as athletics. He wrote, “Under Title IX, federal investigators cannot rummage wily-nily [sic] through institutions, but can only go as far as the federal funds go.” Congress rejected that interpretation, passing legislation that treated educational institutions as a whole in judging their compliance with Title IX.

In 1991, as the principal deputy solicitor general, Mr. Roberts signed a friend-of-the-court brief arguing that Title IX did not authorize monetary damages. The Supreme Court ruled unanimously that it did.

Desegregation
In 1982, Mr. Roberts described court-ordered busing for school desegregation as a “failed experiment” and cited evidence suggesting that busing could worsen segregation by prompting whites to leave the urban centers. He also argued that Congress, as an elected body, was better suited to crafting desegregation remedies than the courts were.

Again as the principal deputy solicitor general, he signed friend-of-the-court briefs to the Supreme Court in 1991 and 1992 that sought to reverse appellate-court decisions that reinstated or maintained court-ordered desegregation plans.

“I would take these things with a grain of salt,” Tom Hutton, a lawyer for the National School Boards Association, in Alexandria, Va., said in reference to the nominee’s paper trail.

The NSBA often submits friend-of-the-court briefs on education-related cases before the Supreme Court, and it endorsed Mr. Roberts in 2003 when he was nominated to the U.S. Court of Appeals for the District of Columbia Circuit, in Washington. The NSBA is not taking a formal position this time, but Mr. Hutton said it stands by its favorable opinion of the nominee.

Questioning Busing

It would be difficult, if not impossible, to distinguish Mr. Roberts’ views from “the legal questions his memoranda address, and either the political issues that were at play around those issues, or the colorful rhetoric he employs as he makes his point,” Mr. Hutton said.

For example, Mr. Roberts wrote “a memo that’s attracted some attention dealing with Congress’ ability to legislate against busing as a remedy for desegregation. But as you read that memorandum, he is talking about the separation of powers [of the branches of government], a fairly esoteric issue,” Mr. Hutton said in reference to a 1982 memo the nominee wrote as a White House lawyer under President Reagan.

For supporters of Judge Roberts, the released memoranda confirm that “this is an extremely intelligent guy, who has a great deal of intellectual range and depth, and who is very thoughtful, very careful, very meticulous,” said Roger Clegg, the general counsel of the Center for Equal Opportunity, a conservative think tank in Sterling, Va. “He’s also somebody who is a conservative.”

Mr. Clegg, whose work as a Department of Justice during much of the 1980s overlapped with Mr. Roberts’ tenure there, said many critics misconstrue the role of a government lawyer.

“I think that the critics of Judge Roberts are quick to assume that because he gave conservative policy advice when he was in the executive branch that this tells you how he’s going to vote as a judge,” Mr. Clegg said.

“As conservatives are always having to explain, and as the left never seems to understand, the judicial role is not simply to vote our policy preferences, but to apply the law, to follow the text of the Constitution and the text of statutes,” he said.

“That’s pure poppycock,” replied Ralph G. Neas, the president and chief executive officer of People For the American Way. Throughout his career, Mr. Roberts has been “part of a cadre of right-wing legal policy advocates,” he argued.

Mr. Roberts “was trying to change the law and change the Constitution,” Mr. Neas said.

The confirmation hearings before the Senate Judiciary Committee were to begin Sept. 6.

Vol. 25, Issue 02, Pages 32,35

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