Cross-posted at dailykos
A file of nominee John Roberts can no longer be found anywhere at the Reagan Library, following its inspection this summer by 2 lawyers from the WH and the Department of Justice.
They removed and claim to have returned the file in July, according to the WaPo story, page A4.
The file that has disappeared covered Affirmative Action cases when Roberts worked for Ronald Reagan.
One of the 2 lawyers who reviewed the file is trying to help the library “reconstruct” its contents. (This diary is a follow-on to dailykos writer BarbinMD’s recommended diary at that site.)
The missing file troubles me now.
It is precisely on the issues of the rights of women and minorities where I believe Roberts is most retrograde.
Even without the missing file, we are learning things about the nominee for Supreme Court justice that make me wonder.
Consider now the position Roberts stated on Title IX, which blocks discrimination against women’s facilities and opportunities at schools that get federal funds. (Roberts was an Associate Counsel to the White House from 1982 to 1986.)
Roberts argued (registration-restricted link) that federal aid given for students to attend a college makes Title IX mandates apply only to the admissions process and not the rest of the college. He wrote that “triggering coverage … is not too onerous if only the admissions office is covered.”
He continued in his memo that the “entire institution” (for example, athletic programs) should not have to comply with Title IX unless it meets a test of “something more solid than federal aid to the students.”
You can thank Ted Kennedy, yes Kennedy, and a Congress that overturned a Reagan veto, for the “Civil Rights Restoration Act” which made explicit a requirement that any school or any entity that does business with the federal government can not discriminate against women and will have to comply with the federal anti-discrimination laws.
The battle over the civil rights legislation continued for several years, but ultimately Mr. Kennedy prevailed. His bill passed in March 1988. Reagan vetoed it and his veto was overridden.
A co-president of the National Women’s Law Center, Nancy Duff Campbell, said she was disturbed by the nominee’s description of Mr. Kennedy’s bill as radical. “That’s pretty distressing that he would say that. That’s the bill that ultimately passed. That’s settled law,” she said. “This memorandum does raise concerns about what his views are on civil rights law.”
Judge Roberts also kept a file on at least one other contentious civil rights issue, the conflict over the government’s right to strip the tax exemption of Bob Jones University because of its ban on interracial dating. That file is not among those presently available for review, according to the library’s listing [as of July 22, the byline date of the article].
[The emphasis, bold and underscore, is not in the original article in the NY Sun.]
I agree with Cambell of the National Women’s Law Center. His advocacy in denying that Title IX applies to academics, athletics and programs, outside of strictly admissions is offensive. You can contrast his view to O’Connor’s subsequent rulings on Title IX issues.
If you comment, see if any of you can also find instances where Roberts shows disdain to minority rights or women’s rights, for example, the Voting Rights Act, condescension to Olympia Snowe’s request on comparable pay for women-occupied jobs, and especially his seeming hostility to the right of privacy for women (relating to the 40-year old Griswold case). I ask this because I am not able to devote the time to it myself now.
If you are inclined, some of you can cite his urgings to his “client” (the US government) on these issues.
Anyway, for now this file on AA issues is conveniently missing !
Hmm, what has Fawn Hall been doing lately? The timing is certainly, umm, interesting.
I already dropped this in BarbMD’s diary at dKos
http://www.archives.gov/news/john-roberts/accession-60-88-0498/032-bob-jones/folder032.pdf
Memorandum
Memorandum
Subject Date
Department of Education Proposal to December 8, 1981
Amend Definition of “Federal Financial
Assistance”
The Attorney General John Roberts
To From Special Assistant to
the Attorney General
The Department of Education has proposed to amend the
definition of “federal financial assistance” in regulations
issued under Title VI, Title IX, and S504 of the Rehabilitation
Act of 1973. These statutes provide that no person shall, on
the basis of race (Title VI), sex (Title IX), or physical
handicap (§504) “be denied the benefits of, or be subjected
to discrimination under any program or activity receiving
federal financial assistance.” Current regulations provide that
educational institutions are covered by these anti-discrimination
provisions even if the only “federal financial assistance” they
receive is through federally financed student loan programs,
such as Pell grants. The Department of Education proposed regulations
would provide that an institution would not be deemed
to be receiving federal financial assistance, and thus covered
by the anti-discrimination statutes, merely because students
attending the institution receive federal assistance in the
form of loans.
The basic question is whether the proposed regulations are
consistent with the legislative intent behind Title VI, Title IX,
and S504 of the Rehabilitation Act. This is currently the
subject of litigation, both in the Grove City and the Hillsdale
College cases. Title IX, adopted in 1972, and §504, adopted in
1973, are substantially identical to Title VI, which was enacted
in 1964. The present question was not specifically addressed
in the legislative history of Title VI. The original civil
rights bill conditioned coverage on “direct or indirect financial
assistance”. Without any explanation, the “direct or indirect”
language was dropped from the final bill. This offers at
lea-t some support for the current Department of Education
position that indirect assistance, such as student loans, should
not trigger coverage. The best conclusion, however, seems to be
that the legislative history was vague and certainly does not
provide a definitive answer, one way or the other.
Folder: Bob Jones- General
Series: Correspondence Files of Ken Starr,
1981-83
Acc. #60-88-0498 Box 26
RG 60 Department of Justice
– 2 –
As noted, Title IX and S504 were modeled on Title VI. The
ambiguity in the legislative history of Title VI thus carried
over into Title IX and S504. Indeed, the strongest arguments
which are made by those who favor coverage rely not on the
legislative history of enactment of Title IX and §504, but
rather on subsequent legislative history. Specifically, oversight
hearings were conducted in 1975 on the regulations in question,
and Congress failed to take advantage of the opportuntity to
repudiate the administrative position. Furthermore, in 1976
Senator McClure sponsored an amendment to Title IX which would
have precluded the position that student loans trigger coverage.
This was not enacted. Although these two events have some probative
value, the Supreme Court has frequently cautioned against using
subsequent legislative history to ascertain the intent of a
previous Congress. The Court has also frequently cautioned
against discerning legislative intent based on the inaction of
Congress.
Aside from scattered fragments of legislative history,
therefore, the argument against the Department of Education’s
proposed regulations is primarily that they would overturn a
long-established administrative interpretation of the statutes.
This argument will carry weight with some courts, but is
certainly not strong enough to prevent us from arguing the
contrary. The leading decision supporting the current regulations,
i.e., ruling that financial aid to students is sufficient to trigger
coverage for the institution, is Bob Jones University v. Johnson,
396 F. Supp. 597 (D. S.C. 1974), affirmed per curiam, 529 F. 2d
514 (CA 4 1975). This decision was heavily relied upon by the
District Court in the Grove City College case. The decision,
however, is only that of a district judge — the per curiam
affirmance by the 4th Circuit was not a considered treatment
of the issues. The Bob Jones case has been given far greater
prominence than it deserves by the proponents of the current
regulations.
The Department of Education proposed regulations apply only
to Pell grants under the alternate disbursement system and the
guaranteed student loan program. Pell grants under the regular
disbursement system are provided directly to the institution,
which then distributes the monies to eligible students. Under
the ‘alternate disbursement system, the institution does not
disburse the monies, which are rather sent directly to the
students. Under all of these programs, the institution plays
some role in administering the loan program, but it probably
cannot be said that the institution receives federal financial
assistance simply because of its role in administering these
programs.
Folder: Bob Jones- General
Series: Correspondence Files of Ken Starr,
1981-83
Acc. #60-88-0498 Box 26
RG 60 Department of Justice
– 2 –
In sum, the question whether Congress intended in enacting
Title VI, Title IX, and §504 to cover institutions whose only
federal financial assistance was in the form of loans received
by their students is a close one. It cannot be said with
confidence that courts will uphold the proposed regulations if
they are adopted, because courts may choose to rely on the
longstanding administrative interpretation to the contrary, or
the inaction of Congress in the face of this interpretation and
cases such as Bob Jones. On the other hand, the case has not
been made that the legislative history clearly bans Education’s
proposed change, and therefore I recommend acceding to it.
Folder: Bob Jones- General
Series: Correspondence Files of Ken Starr,
1981-83
Acc. #60-88-0498 Box 26
RG 60 Department of Justice
Those remarks of his in your comment seem kind of wishy-washy or indeterminate compared to his later (1985) memo that reacted to the 1984 Supreme Court decision, Grove City College v. Bell.
After that decision, Roberts’ observations or recommendations seemed to crystallize and be more policy oriented. That’s the impression I get from seeing the July 1985 memo that I excerpted above.
More of those great files to be found at:
http://www.archives.gov/news/john-roberts/