Roberts Memo Mining III

The picture of the Reagan White House that emerges from the MSM’s examination of Judge Roberts’s service there is pretty consistent. They weren’t all rightwingers — some, such as Roberts himself, were far-rightwingers — but they were all committed to “turning back the clock” on civil rights.

Typical is this from the Washington Post today:

Roberts was part of a cadre of young conservatives attracted to work in Washington with the ambition of righting what they considered to be a series of judicial errors under liberal governance that had helped set the country on a political course they didn’t like….

On topics such as civil rights, judicial procedure, criminal justice and the role of religion in public life, the papers show Roberts not only embraced the political ideals of the conservative administration for which he worked, but occasionally advocated even more conservative solutions than his colleagues.

With this picture in mind, I’m sure you’ll have no problem predicting how Roberts and his merry band of zealous Reaganauts responded to Madeline Ritter’s complaint against Mount St. Mary’s college, a small Catholic college in Maryland, a case that takes up most of Box 23 (2) of the recent release of Roberts records.

Ms. Ritter was a 57 year old lay teacher at Mount St. Mary’s who was passed over for tenure, after which she sued the college for equal pay violations as well as sex and age discrimination. As related in a draft opinion for the Solicitor General from J. Paul McGrath, Assistant Attorney General, Civil Division, and Carolyn Kuhl, Deputy Assistant Attorney General (pp. 3-11 of the pdf file of Box 23[2]), 5 October 1983, “the district court ruled that plaintiff’s Equal Pay Act and the ADEA claims could not be pursued because of the College’s religious character but that the Title VII issue could go to trial.” [Ritter v. Mount St. Mary’s College, 495 F.Supp. 724, 23 FEP Cases 734 (D.Md. 1980)]. Ritter appealed, and the Fourth Circuit asked the Solicitor General if the Reagan Administration wanted to intervene.

As McGrath’s draft opinion states, the case presented “difficult questions in a sensitive, delicate and unsettled area of the law.”

At issue at this state of the appeal is whether the Equal Pay and Age Discrimination Acts should be construed to apply to religiously affiliated colleges and, if so, whether such application of the statutes is constitutional under the Establishment and Free Exercise Clauses of the First Amendment. The district court has, in effect, announced a blanket exemption from these anti-discrimination statutes for religiously affiliated colleges.

McGrath went on to note that the appeal would in all likelihood also address the question of whether Title VII could be applied to religious colleges and that the district court’s rationale could also be invoked by other religious organizations such as hospitals and social service agencies.

The White House’s choice, then, was whether 1) to decline to intervene; 2) to intervene in support of the College’s and the district court’s broad exemption of religious colleges from the statutes; or 3) to endorse the EEOC’s recommendation and intervene in support of the plaintiff’s position.

Easy, right? No way those religious Reaganauts would pass up the opportunity to limit the reach of anti-discrimination statutes by giving a special exemption to religious schools, would they?

Wrong. They did. Both the Justice Dept. and the EEOC, then under the chairmanship of Clarence Thomas, urged intervention on behalf of Ms. Ritter, and it was done.

Nothing in this file indicates Judge Roberts’s view of this issue. At the very beginning of the documents on this issue there is a handwritten note signed “JGR” (John G. Roberts) stating that something had been “handled orally” and that the documents were returned for filing.

A day or so ago the Scripps Howard News Service reported that

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, led 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.

The files I’ve seen do not contain Roberts’s views on this matter, and so far the Scripps Howard reporter has not responded to my email query asking for the source of her description of Roberts’s position in 1985.

I can’t find the Fourth Circuit opinion [Madeline Ritter v. Mount Saint Mary’s College, 814 F.2d 986 (4th Cir. 1987), cert. denied, 108 S.Ct. 260 (1987)] online (anyone want to give me a subscription to Lexis or Westlaw?), but a citation to the Fourth Circuit opinion in this case noted that “education professor’s ADEA claim ‘did not present a significant risk of infringement upon the First Amendment rights of Mount Saint Mary’s College.'”

If I learn more about this case, or about Roberts’s views on it at various stages, I’ll let you know. For now suffice it to say that the Reagan administration cannot accurately be characterized as consisting of nothing more than rightwing religious zealots who would “turn back the clock” on every known civil rights advance if only given the chance.

Say What? (6)

  1. Chetly Zarko August 22, 2005 at 12:16 pm | | Reply

    John,

    At some point you write that the “memo-mining” is a “Good Thing,” perhaps somewhat in jest.

    I think it is genuinely a good thing. One, it forces the left to work based on the real record, and Roberts paper record is vast enough that if the left can’t find a “smoking gun” inside of it, then they shouldn’t be able to get away with any runor-based aspersions or “he said, she said” types of battles (Anita Hill). Let’s fight them on the record. Two, its good old fashioned hard research. A great skill to teach individuals on both sides. Bloggers of each hemisphere should analyze this stuff (I’d note that much of my research comes from Michigan’s archives, which, because of my work, are now “sealed” for ever-longer periods of time). If civic debate was based on this kind of stuff more often, regardless of which side of the issue you come down on, we’d be in a better place. Three, just reading a few of the documents, I see an incredibly sharp man who reads the law and lets that direct his conclusion. I think independents who read a few documents will find the same. For example, he supports the right of a Ronald Reagan op-ed to be “public domain” and copyright free even after two publishers attempted to copyright it, and notes that his advice on the issue is contrary to previous administration actions or legal advice (probably simply an oversight or failure to have a reason to ask the question). See http://www.reagan.ute##as.edu/roberts/Box01JGRAbortion3.pdf (TE##AS is questionable content stopped by John blocker, you’ll have to delete the pounds and add a single x). Some Republicans would have defended the business interest in the copyright in that situation, rather than the public domain interest. Roberts read the law and did the right thing. Four, if it all boils down to a few of his positions on civil rights and the memos, the Dems are serving this issue up on a silver platter for us. If Roberts makes a strong defense of each “critical memo” in his confirmation hearings – he will both win and move us forward on this issue.

  2. John Rosenberg August 22, 2005 at 12:36 pm | | Reply

    Chetly – That “Good Thing” was not in jest or tongue in cheek. I really meant that it IS a good thing, for the reasons you give.

  3. Chetly Zarko August 22, 2005 at 6:02 pm | | Reply

    John,

    Can you imagine having a debate with preference supporters based on hard, provable facts, where they have to use real quotes? This may be a first in recent, American history.

    It was hard to discern your meaning there, with the capitalization and your humor, although I know you well enough that I didn’t think you’d disagree with my elaboration. I thought it was worth observing on more precisely.

    By the way, the state that George W. Bush was governor of seems to be stopped by your blocking program.

  4. John Rosenberg August 22, 2005 at 6:32 pm | | Reply

    Chetly – Such a debate would indeed be interesting, and almost a first. Wish you could get one of those in Michigan!

    Don’t know how “Texas” got on my MT-Blacklist blacklist, but now it’s off. Thanks for catching it.

  5. Chetly Zarko August 23, 2005 at 12:45 am | | Reply

    Well, John, there are circles where civilized debate still dwells in Michigan.

  6. Beth Wellington August 26, 2005 at 1:19 pm | | Reply

    Have you mined any Roberts memos on his environmental record.

Say What?