Memo at Reagan Library Sheds Light on Roberts’s Civil Rights Views
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

WASHINGTON – While an associate counsel in the Reagan White House, President Bush’s nominee for the Supreme Court, Judge John Roberts Jr., made an intellectual argument for limiting the application of federal anti-discrimination laws, but he counseled the administration that for political reasons it should not adopt his view.
The advice from Judge Roberts is contained in a July 24, 1985, memorandum he wrote to the White House counsel, Fred Fielding. The two-page memo was obtained by The New York Sun yesterday from the Reagan Library, which houses a veritable treasure trove of documents that Judge Roberts handled during his four-year stint at the White House.
The Simi Valley, Calif., library lists hundreds of files prepared by Mr. Roberts on subjects ranging from the Abscam bribery scandal to humanitarian assistance to Nicaragua. About 4,200 pages of the files are available to the public, but the vast majority of his documents, numbering in the tens of thousands or more, are still awaiting processing.
Senate Democrats have said they will ask for full access to the records, but an archivist said the nonpublic files will be released only upon the request of the Bush administration.
The memo obtained by the Sun deals with legislation proposed in the wake of a 1984 Supreme Court ruling that interpreted the federal law against sex discrimination in education, known as Title IX, to apply only to the “specific program” at a particular school that benefited from federal assistance.
Civil rights advocates decried the ruling in Grove City College v. Bell because it threatened to leave the academic and athletic programs at some schools outside the scope of federal gender-equity mandates. Some warned that the court’s rationale could undercut anti-discrimination laws across the board.
Some conservatives also criticized the decision. They argued that only schools taking direct aid from the government should be subject to federal civil rights laws. Grove City College had deliberately rejected federal help, but some students had accepted financial aid.
Judge Roberts sided with the conservative critics, at least in theory. “There is a good deal of intuitive appeal to the argument,” he wrote. “Triggering coverage of an institution on the basis of its accepting students who receive federal aid is not too onerous if only the admissions office is covered. If the entire institution is to be covered, it should be on the basis of something more solid than federal aid to the students.”
However, the stampede to overturn Grove City College proved to be too strong for the Reagan administration to resist. Senator Kennedy introduced a bill called “the Civil Rights Restoration Act,” which proposed to reverse the court’s holding not just for colleges and universities but across the board, subjecting any entity doing business with the federal government to the full panoply of anti-discrimination laws.
A Republican senator of Kansas, Robert Dole, countered with a bill that would have reversed the program-by-program aspect of Grove City College, but only for educational institutions.
After some debate, the Reagan White House endorsed Mr. Dole’s proposal. Some conservatives were up in arms, including a former secretary of education, Terrell Bell. He wrote to the White House urging it to push for more latitude for schools like Grove City College. It fell to Judge Roberts to propose a response.
After expressing his agreement with Mr. Bell, Judge Roberts wrote, “As a practical matter, however, I do not think the administration can revisit the issue at this late date. … Reversing our position on that issue at this point would precipitate a firestorm of criticism, with little if any chance of success.”
In his memo, Judge Roberts also took a swipe at Mr. Kennedy’s legislation, saying it would “radically expand the civil rights laws to areas of private conduct never before considered covered.”
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.