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Article of Interest - Education

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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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