Law & Courts

Court Nominee’s Paper Trail Includes School Issues

By Mark Walsh — July 26, 2005 5 min read

Judge John G. Roberts Jr., President Bush’s pick for the U.S. Supreme Court, has dealt closely with some of the most controversial issues in education in his past work as an appellate advocate.

If confirmed to replace Justice Sandra Day O’Connor, he would bring to the high court perhaps the greatest firsthand knowledge of the concerns of district-level educators of anyone since Justice Lewis F. Powell Jr., who had served on both the Richmond, Va., school board and the Virginia state board of education before his service on the Supreme Court from 1971 to 1987.

“Among the names that were floated, I think he was the best candidate for schools,” Julie Underwood, the general counsel of the National School Boards Association, said of Judge Roberts. Before he became a federal appeals court judge in Washington in 2003, she noted, he had often participated at NSBA school law events.

“I believe he is so thoughtful and evenhanded,” Ms. Underwood added. “Liberals are slamming him for briefs he wrote representing a conservative [presidential] administration. But I don’t think those briefs necessarily represent his personal views.”

Ms. Underwood was referring to Supreme Court briefs that Mr. Roberts, 50, helped write when he was the principal deputy U.S. solicitor general during the administration of President George H.W. Bush. The briefs took conservative positions on such education issues as graduation prayer, school desegregation, and the scope of Title IX of the Education Amendments of 1972, the federal law that prohibits sex discrimination in federally financed educational programs.

In the school prayer case, Lee v. Weisman, Mr. Roberts and his boss, then- Solicitor General Kenneth W. Starr, called for the Supreme Court to replace its longtime test for evaluating whether government action violates the First Amendment’s prohibition against a government establishment of religion. The case concerned a rabbi’s prayer before a graduation ceremony at a public middle school in Providence, R.I.

John G. Roberts Jr.

As deputy solicitor general in President George H. W. Bush’s administration, John G. Roberts Jr. co-authored briefs in these topical cases:

Lee v. Weisman, a First Amendment case involving graduation prayer.

Board of Education of Westside School District v. Mergens, an Equal Access Act case involving bible clubs in schools.

Freeman v. Pitts, a case on school desegregation.

Board of Education of Oklahoma City v. Dowell, a case on school desegregation.

Franklin v. Gwinnett County Public Schools, a case invloving the mandates of Title IX.

Case information provided by the Legal Information Institute at Cornell University Law School.

“The graduation setting at issue here differs markedly from the classroom setting,” the brief said in calling for the court to uphold the practice. In a major defeat for conservatives, the Supreme Court struck down the graduation prayers in a 5-4 ruling in 1992.

Mr. Roberts also helped write the administration’s briefs in two major desegregation cases, Board of Education of Oklahoma City v. Dowell and Freeman v. Pitts. Mr. Roberts’ briefs argued for allowing school districts to ease their way out of court-supervised desegregation plans in stages, a view generally adopted by the high court.

In the Title IX case, Mr. Roberts’ brief took a narrow view of the sex-discrimination law, arguing that it did not authorize monetary damages. The Supreme Court concluded that it did, in a unanimous decision in Franklin v. Gwinnett County School District.

Dan Losen, the senior education law and policy associate at the Civil Rights Project at Harvard University, said Judge Roberts’ briefs from those cases are a fair matter for scrutiny.

“By all accounts, he is a nice person, but if you look at cases he’s worked on, they are not favorable on civil rights by any measure,” Mr. Losen said.

After his service in the solicitor general’s office, Mr. Roberts returned to the Washington law firm Hogan & Hartson, where he argued a wide range of cases before the Supreme Court and often helped the firm’s well-established education law practice.

Student-Records Case

In 2002, he represented Gonzaga University in Spokane, Wash., in a Supreme Court case with implications for both colleges and K-12 schools. Mr. Roberts argued that the Family Educational Rights and Privacy Act, which requires federally financed schools to protect the privacy of student records, does not authorize private lawsuits for enforcement.

Mr. Roberts won the case, with the high court agreeing with his view in a 7-2 ruling in Gonzaga University v. Doe. The decision could be influential as courts begin to wrestle with legal challenges under the No Child Left Behind Act.

Patricia A. Brannan, a partner at Hogan & Hartson and the former head of its education law practice, said she would often seek Mr. Roberts’ advice on cases.

“He’s just superb at cutting through a heavy volume of material to the core issues,” she said.

While at the firm, Mr. Roberts sometimes worked with the NSBA to help lawyers prepare for Supreme Court arguments in education cases by serving as a “judge” on the moot courts where they rehearsed their arguments.

Lee Boothby, a Washington lawyer who argued a case before the high court in 1999 involving federal aid to parochial schools in Louisiana, recalled how helpful Mr. Roberts was, even though Mr. Boothby ended up losing his case. He represented taxpayers who had challenged the provision of federal aid for such resources as library books and computers. The Supreme Court ruled 6-3 in Mitchell v. Helms to uphold the provision of such aid.

“He asked some very tough questions,” Mr. Boothby said. “I felt very ill at ease about my case at the time I went into the moot court, but I felt much better prepared before the actual Supreme Court argument.”

‘Straying Youth’

Mr. Roberts joined the federal appeals court in the nation’s capital two years ago. It deals with much litigation related to the federal government, and probably fewer routine school lawsuits than the other federal circuits. Judge Roberts has not written any opinions on a school law issue there, although he joined a short opinion by a unanimous three-judge panel that ruled for the District of Columbia school system over a family seeking reimbursement for a private school placement under the Individuals with Disabilities Education Act.

Judge Roberts’ 2004 opinion in the so-called “french-fry case” leads some observers to conclude that he is more likely to side with government authorities in challenges over youth discipline.

The case involved Washington’s metropolitan transit authority, which in 2000 had staked out a subway station near a school, in part in response to complaints about rowdy students. The system has strict rules against consuming food or drink on trains or in stations. When a 12-year-old student ate a french fry in a station, she was handcuffed and taken into custody until she could be picked up by a parent.

The girl’s mother sued the transit authority, alleging that the girl’s civil rights had been violated, in part because she was treated more harshly as a juvenile than adults customarily were for the same offense.

In an opinion for a three-judge panel that unanimously upheld the transit authority’s actions, Judge Roberts said that “no one is very happy” about the circumstances of the case, but that “the correction of straying youth is an undisputed state interest and one different from enforcing the law against adults.”

Staff Writer Andrew Trotter contributed to this report.

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