Even though John Roberts has not been confirmed in the Senate, it is a question of when, not whether. His pedigree as a conservative is without a doubt. After the gone-awry appointments (from the Republican perspective) of Justices Kennedy and Souter, this candidate has most assuredly been vetted for his rock solid views that are sympathetic to the Bush administration. Arguably, there are open questions on where John Roberts stands on special education issues. He has little track record to speak of on special education, but his views on educational issues are better known and are certainly conservative.
On issues related to school prayer, John Roberts has vigorously argued against a Supreme Court decision that struck down “moments of silence” in schools. On gender discrimination under Title IX, Roberts argued for creative limitations on the scope of the Act and argued against monetary damages. The Court ruled that Title IX does have a remedy for monetary damages, and Congress clarified the scope of the Act, rejecting Roberts’ position. On school desegregation and busing, Roberts has argued that Congress, not the courts, should fashion desegregation remedies. He also argued for the termination of court-ordered desegregation plans. While these were his positions as an attorney, not a Judge, they are certainly harbingers of his perspectives on the role of the Court when faced with educational issues.
Whether he will take the school district’s position when faced with the upcoming Weast case, on the issue of burden of proof in due process cases (set for argument this term beginning next week) is still an open question. Fellow conservatives like Judges Easterbrook and Posner certainly have blazed a trail hostile to parents and favorable to school districts. It is no great leap of logic to expect that Judge Roberts will rule similarly to his ideological peers. So that is the problem that we face going forward as we represent parents; what do we do?
I am a firm believer that in life, we have only three basic choices (as my high school biology teacher used to say): we can adapt, migrate or die. I certainly do not recommend the latter. For me, at least, I am not prepared to migrate (no place to go), as born out in the report from the National Council on Disability that there are problems for children receiving special education in all 50 states. So that leaves adapt. What does adapt look like for us in this new era?
First, we will increasingly need to mobilize politically. Cases hostile to our position as parents and as attorneys will likely need to be overturned with legislation at the State or Federal level. Congress will need to make its “intent” crystal clear, so the conservatives will have no choice but to apply the law, as Judge Roberts testified to during his confirmation. Second, state courts may look much more hospitable, especially on state substantive law, to the extent protections can be found. Third, we will need to become better negotiators and more effectively use mediation and other means of alternative dispute resolution. Fourth, case selection and choosing the right fight will become even more critical. Fifth, there is strength in numbers; we must network, and join organizations like TASH and COPAA to share resources, strategies and develop real clout. We need to borrow a page from the AARP playbook. I am mindful that the school districts and teachers have powerful lobbies and unions; we have numbers, motivation (it is our children we are talking about), and the heartfelt vision that our children have right to a meaningful future. We cannot and will not allow John Roberts or the replacement for Justice O’Connor to roll back our children’s rights.