As associate White House counsel in the Reagan administration, Supreme Court nominee John Roberts’ conservatism showed through on legal questions of gender equity in education and the workplace.
His papers for 1981 to 1986 released by the Ronald Reagan Presidential Library in Simi Valley, Calif., and the National Archives in Washington show that:
- Roberts advised that Reagan “should be non-committal” on legislation to overturn a 1984 Supreme Court decision that limited Title IX’s ban on sex discrimination in higher education to specific programs that receive federal funds.
- He questioned whether the administration should join the Supreme Court appeal by a 57-year-old woman professor who sued a religious school for alleged age and equal-pay bias.
- He rejected as “radical” the “comparable worth” theory that called for pay equity between men and women in comparable jobs.
The memoranda are among 50,000 papers documenting Roberts’ work for the Reagan administration that the Bush White House is culling in advance of Roberts’ Senate confirmation hearings, now scheduled to begin Sept. 6.
In the education case, Roberts suggested the White House “wait and see what Congress proposes” before signing on to any bill to overturn the Supreme Court ruling in the case of Grove City (Pa.) College. That decision narrowed the ban on sex bias in colleges and universities forbidden by Title IX of the 1972 Education Act Amendments to only those programs and activities that actually receive federal money.
The administration had urged the court to read the law narrowly. Reagan Justice Department civil-rights division chief William Bradford Reynolds declared when the decision was handed down that it could apply to laws affecting the rights of blacks, the disabled and other groups in addition to women.
Four years later, over Reagan’s veto, Congress passed the “Grove City bill” to apply Title IX to all higher-education institutions that receive federal money, including schools with religious affiliations _ not merely the programs within the institutions that spend the money.
By then, however, Roberts had left the administration for private law practice for two years.
Roberts also questioned a 1985 decision by the Justice Department and Equal Employment Opportunity Commission to join the Supreme Court appeal of Madeline Ritter, a liberal-arts professor who was 57 when she was denied tenure by Mount St. Mary’s College in Maryland and sued for federal equal-pay and age-bias violations.
The EEOC, chaired then by now-Supreme Court Justice Clarence Thomas, disagreed with lower-court rulings that the First Amendment guarantee of free exercise of religion exempted religious institutions from complying with federal job-discrimination laws in hiring, pay and promotion practices. The Supreme Court declined the case.
In a 1984 gender pay case, Roberts criticized as “radical” the controversial theory of “comparable pay” that a U.S. district judge cited in ordering Washington state to draft new pay scales for women state employees in job categories where at least 70 percent of the workers were women.
Roberts considered it “troubling” that three Republican congresswomen, including now-Sen. Olympia Snowe of Maine, asked the administration to join the case on the side of Washington state’s female employees. “Their slogan might as well be ‘From each according to his ability, to each according to her gender,’ ” Roberts wrote in a memo, mocking Karl Marx’s memorable phrase.
Snowe has yet to say how she will vote on Roberts’ Supreme Court nomination. In a statement after the public release of Roberts’ comments on comparable worth, she said: “Hopefully, 21 years later, Judge Roberts possesses an openness with respect to issues of gender-based wage discrimination, and as the confirmation process moves forward, I will continue to carefully and rigorously evaluate his views and 26-year record on such critical matters.”
The district court “comparable worth” order to Washington state was overturned in 1985 by the 9th U.S. Circuit Court of Appeals in a ruling by future Reagan Supreme Court appointee Anthony Kennedy.
(Contact Mary Deibel at DeibelM(at)shns.com)