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Supreme Court
Nominee’s Record Includes Legal Issues in Education
Mark Walsh,
Education Week, July 19, 2005
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President Bush's
nominee for the Supreme Court, John G. Roberts, Jr., has dealt
closely as an appellate advocate with some of the most
controversial issues in education. If confirmed, he would bring
to the high court perhaps the greatest firsthand knowledge of
the concerns of school district officials of anyone since
Justice Lewis F. Powell, Jr., who had served on the school board
of Richmond, Virginia, and on the Virginia state board of
education. "Among the names that were floated, I think he was
the best candidate for schools," says Julie Underwood, general
counsel of the National School Boards Association. She notes
that before he became a federal appeals court judge in 2003, Mr.
Roberts had participated in several NSBA school law events. "I
believe he is so thoughtful and even-handed," Ms. Underwood
says, adding, "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." From 1989 to 1992, Mr. Roberts served as Deputy
Solicitor General in President George H.W. Bush's
administration. In that capacity he co-authored briefs on issues
that reflected the administration's viewpoint. In Lee v.
Weisman, the government's brief defended prayers at high school
graduation. The brief in Franklin v. Gwinnett County School
District argued that Title IX did not authorize awards of
monetary damages. In Freeman v. Pitts and Board of Education of
Oklahoma City v. Dowell, the administration argued for allowing
school districts to ease their way out of court-ordered
desegregation plans. Patricia A. Brannan of Hogan and Hartson,
the Washington law firm to which Mr. Roberts returned after
serving in the solicitor general's office, says she often turned
to him for advice on appellate matters related to the firm's
education law practice. Mr. Roberts also helped school lawyers
prepare for Supreme Court arguments by serving as a "judge" on
the moot courts where they rehearsed their arguments. Lee
Boothby, a Washington lawyer who argued Mitchell v. Helms before
the Supreme Court on federal funding to religious schools,
recalls how helpful Mr. Roberts was in such a moot court, even
though Mr. Boothby ended up losing the case. "He asked some very
tough questions," Mr. Boothby says. "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."
Although Judge Roberts has issued no substantive school law
opinions since joining the federal appeals court in the nation's
capital two years ago, his opinion in a widely discussed "french
fry" case, involving the arrest of a juvenile for violating the
D.C. subway system's strict rules against consuming food or
drink in stations or on trains, may be of interest to educators.
In ruling in favor of the transit system, Judge Roberts
indicated that, while "no one is very happy about" the
circumstances of the case, "the correction of straying youth is
an undisputed state interest and one different from enforcing
the law against adults."
[Editor's Note: The moot courts were among those that NSBA has
organized and hosted for school attorneys preparing to argue
before the Supreme Court. Mr. Roberts participated as a "judge"
in three of these while still in private practice. In addition,
he made several presentations at Council of School Attorneys
conferences, including one on effective oral advocacy summarized
in his article below. NSBA submitted a letter in support of Mr.
Roberts' confirmation to the D.C. Circuit Court of Appeals two
years ago.]
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