Saturday, August 20, 2005

The Roberts Files: Equal Opportunity in Education

As I previously stated, I got a link to one of the documents released by the Reagan Library on matters handled by then-attorney John Roberts. This particular issue deals with equal opportunity in education. If one were to think that Roberts' opinions on equality are contained within, however, I'm afraid one would be disappointed. I'm not a lawyer, you see, I'm a network engineer by profession. The concept of logic has always fascinated me and, as with network engineering, logic allows assumptions only in very narrow circumstances. John Roberts was a lawyer working on the White House's legal team. His job was to advise the Counsel to the President as regards the legal standing of whatever matter was before him with the basis of that decision being the policies already articulated by the administration. Roberts worked to make sure that the statements made by the administration fell within the scope of the law as written at the time, not to direct the Administration's policies. So the material he wrote was based upon the Administration's policies which may or may not have been in agreement with his own. To think that he completely agreed with every statement he was asked to provide advice on is an assumption, and an unsupported one at that.

I make this caveat to get this idea across: a lawyer does not always espouse the position he is required, by his job, to advance. What one can say about Roberts' writing, in this specific instance, is that he sought to make certain that any statement made by the President was supported by the written law. That - is - all one can rightly conclude.

Now, let's turn to the matter at hand. In April, 1984, then-Vice Chairman of the US Commission on Civil Rights Morris Abram wrote to President Ronald Reagan concerning a statement made by the Department of Education. The DoE was threatening to withhold federal funding from the University of Georgia (Abram's alma mater) under Title VI of the Civil Rights Act of 1964 over the use by the U of G of a "Regent's Test" as a requirement for graduation. The Regent's Test measured basic reading and writing ability and required that anyone who was to graduate from U of G read and write at a 10th grade level. The DoE considered such a test to have "an adverse effect... on the graduation of black students", cited by Abram from a letter to Georgia's Governor Joe Frank Harris from the Department in mid-1983. By April, 1984, the DoE and the University had apparently reached a loggerhead on the issue and the DoE made the withholding threat known. Our friends at the New York Times published a story in late March, 1984, and that story is what prompted Abram to write the President.

Abram was adamant that such a withholding and another suggestion by the DoE - that scholarship set-asides for black students be offered by the University - flew in the face of the Administration's stated policies regarding equality of opportunity in education. Abram believed that discrimination could not be addressed racially preferential policies and programs. He stood firm that such suggestions stood in opposition to both the Administration's and the Department of Justice's stance on the matter and called upon the President to reverse this decision to withhold by then-Secretary of Education Bell.

The President wished to respond and the letter drafted for that response was run past the legal team at the White House for their comments. The original draft was submitted by Craig Fuller and passed to the legal team by Richard Darman, Assistant to the President. Enter John Roberts. Roberts reviewed the draft letter and made a number of suggestions. The draft contained a number of references to the President being "assured by" and having "contacted" Secretary Bell. Roberts determined that the Secretary and the President had not actually spoken to each other on the matter directly and suggested language changes to avoid the impression that they had. Where the draft letter had the President saying that Bell "has assured me", Roberts suggested a change to use the word "advises." There are several other places in the letter with similar wording and Roberts makes similar suggestions. His only purpose there was to keep someone from later claiming that the President said he'd spoken with Bell when he had not. Fair enough.

He also noted a comment in the draft where the DoE was reported to "no longer object" to the Regent's Test at U of G and suggests that the wording implies that the DoE's position had changed as a result of Abram's letter. The fact was that the DoE had already changed their position prior to the letter and Roberts wanted to change the wording to make that clear. His suggestion was to change the phrase to "does not object". Again, this is a matter of clarification and avoidance of an implication.

The most interesting part of his participation dealt with the draft's wording when addressing the President's stance on the matter at hand - that is, the U of G's remedial programs surrounding the Regent's Test. The original draft contained these lines:

::::::::My Administration's policy concerning this or any other academic test or standard is clear: America's students deserve and must have both increasingly rigorous academic standards and an equal opportunity to acquire the skills required to meet them. I am informed by Secretary Bell that officials at the Department of Education's Office for Civil Rights have alleged that opportunities to take the remedial courses at Georgia's traditionally black college campuses are not equal to those provided at its traditionally white campuses. If true -- and the Department officials must, of course, prove this allegation -- such a denial of equal opportunity to individuals will need to be corrected. So long as I am President, however, you can be assured that all allegations of discrimination will need to be fairly proven, and that the Federal government will not interfere with the use of any academic test or standard based on differences in the pass-fail rates or any other "results test."::::::::

Roberts found those last two sentences to be indicative of the President's judgement that the DoE was wrong, a stance Roberts believed the President was not actually taking. He suggested toning it down. Quoting from Roberts' memo:

::::::::Finally, in my view -- a view hotly and angrily disputed by Micheal Horowitz -- the last two sentences of the second paragraph are too hostile in tone to the allegation of discrimination. As I see it, anyone reading those sentences would get the impression that the President does not believe for a minute that Education can prove that the University of Georgia discriminated in the provision of remedial programs. I would moderate the two sentences to read: "If true, such a denial of equal opportunity to individuals will need to be corrected. So long as I am President, however, the Federal government will not interfere with the use of any academic test of standard based on differences in pass-fail rates or any other 'results test.'" This suggested revision makes the point without overkill.::::::::

The remainder of the file consists of memos back and forth between Roberts and Fielding, and between Fielding and Darman on whether those changes had been made in subsequent drafts before being sent to the President for his signature. The crux of this particular situation is that Roberts sought to clarify the truth of the matter and to avoid implications that something had happened when it did not. The President hadn't actually spoken to Secretary Bell, so Roberts wanted to avoid language suggesting he had. The President hadn't advanced a position on the merits of the DoE's allegation against the U of G and, again, Roberts sought to make sure the language of the letter didn't imply the President had done any such thing.

Roberts' actions and words in this situation really have nothing to do with equal opportunity, in education or anywhere else. He is concerned with and focused completely upon the truth of the matter being discussed and with cutting away language loaded with meaning that the truth did not support. I see his actions here as being in the finest tradition of pursuit of the truth. This cannot be a bad thing in a judge or a Justice, yes?