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Published in Print: November 9, 2005, as Alito Has Lengthy Record of Opinions in School Law

Alito Has Lengthy Record of Opinions in School Law

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Judge Samuel A. Alito Jr., President Bush’s latest nominee for the U.S. Supreme Court, has an extensive record on school law issues after 15 years on a federal appeals court, including such subjects as student religious expression, affirmative action, and special education.

The 55-year-old New Jersey native was tapped by President Bush on Oct. 31, four days after White House Counsel Harriet E. Miers withdrew her name from consideration, to fill the seat of retiring Justice Sandra Day O’Connor. His confirmation hearings before the Senate Judiciary Committee are scheduled to begin Jan. 9.

See Also
Read the related story, “Samuel Anthony Alito Jr.”

Judge Alito, who was nominated in 1990 by President George H.W. Bush to the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, has a reputation as a judicial conservative, and Democratic senators and liberal interest groups last week raised concerns about his stance in a major abortion decision from 1991 and on his record in civil rights cases.

“Judge Alito would almost certainly shift the balance of the Supreme Court hard to the right,” the Alliance for Justice, a liberal coalition of advocacy groups, said last week.

Religious Expression

In numerous school cases over his tenure on the appellate court, Judge Alito has generally sided with school authorities.

But there have been exceptions, especially in cases involving student religious expression.

In 2000, Judge Alito wrote a dissent on a case that posed a clash between a school’s efforts to limit references to religion in the classroom and the right of students to express religious messages.

In C.H. v. Oliva, a kindergarten teacher had asked her students to create Thanksgiving posters depicting what they were thankful for. When a child brought in a poster depicting Jesus, administrators at the New Jersey public school removed it from a display of posters by other children, though the teacher later displayed it less prominently. The student’s guardian sued the district, alleging that the removal was unconstitutionally motivated by the poster’s religious theme.

The case eventually went before the full 3rd Circuit court, which voted 10-2 to dismiss the family’s challenge, partly on procedural grounds. Judge Alito wrote a dissent that said the court should have examined whether the student’s poster was given less favorable treatment than it would have received had its content been secular rather than religious.

“I would hold that public school students have the right to express religious views in class discussion or assigned work,” provided it falls within the scope of the assignment, Judge Alito wrote in his dissent.

Last year, he wrote for the majority on a three-judge panel that ruled against a New Jersey school district that had prevented a Bible-study group from setting up an informational table at a back-to-school night. The district’s action amounted to “viewpoint discrimination,” Judge Alito said.

In 1996, he joined a dissent from a 9-4 ruling by the full 3rd Circuit court that upheld an injunction against a New Jersey district’s plans to have student-led prayer at graduation. The dissent would have allowed the graduation prayers because the students were permitted to decide for themselves whether to have a prayer, a moment of silence, or no such observance at all.

Anti-Harassment Policy

In a 2001 case that also touched on religious expression, Judge Alito wrote the opinion for a unanimous three-judge panel of the 3rd Circuit that struck down a Pennsylvania district’s anti-harassment policy for students.

In Saxe v. State College Area School District, the guardian of two students sued on their behalf alleging that the district’s policy violated their First Amendment right of free speech. The suit said the students were Christians and had a right to criticize homosexuality as a sin, for which they feared punishment under the district’s policy. The policy barred harassment on the basis of race, religion, disability, sexual orientation, clothing, peer group, intellect, hobbies, values, and other factors.

In his opinion striking down the policy as unconstitutionally overbroad, Judge Alito said that “there is no categorical ‘harassment exception’ ” to the First Amendment and that the policy prohibited “a substantial amount of speech that would not constitute actionable harassment under either federal or state law.”

‘Devastating Bullying’

In a special education case, Judge Alito wrote the opinion last year for a unanimous three-judge panel that involved a New Jersey student whom other students had for years bullied relentlessly for his perceived effeminacy.

The boy’s school had taken some steps to protect the child and address disabilities that came to light after the harassment began. But by high school his parents placed him in a school in a neighboring district and demanded that their home district pay his tuition.

At a hearing on the dispute, an expert from the boy’s elementary school and a psychologist agreed with the parents that the outside high school was the appropriate environment for the boy but were opposed by the home district’s affirmative-action officer, who said the district could correct the problems.

The appellate panel backed the boy’s parents unanimously, with Judge Alito writing an opinion that said the lower court had failed to give the hearing officer’s conclusions proper weight.

Although the opinion was dry and to the point, Judge Alito apparently didn’t buy the home district’s claim that it could prevent, as the boy moved into high school, what Judge Alito described as “a continuation of the devastating bullying that had occurred in middle school.”

Legal Aid

Lawyers who have observed Judge Alito, who has his chambers in Newark, N.J., praise him.

“He is as well respected a guy as there is in New Jersey, very well thought of at the bar regardless of the political persuasion of the lawyer,” said Stephen J. Edelstein, a Florian Park, N.J.-based lawyer who has appeared before Judge Alito on school-related cases.

He added that he was struck by Judge Alito’s sensitive handing of a parent who was representing herself in a complicated special education case against Mr. Edelstein’s client, a school district.

“I felt he was extremely considerate to the pro se plaintiff,” Mr. Edelstein said, using the Latin legal term for a person who represents himself in court. “He was very willing in simple terms to understand what that person wanted.”

Though Mr. Edelstein said he had philosophical differences with Mr. Alito, the judge’s temperament gave him confidence in how the nominee would perform on the Supreme Court.

“In his case, what it leads to is fairness,” Mr. Edelstein said.

Perry A. Zirkel, a professor of education law at Lehigh University in Bethlehem, Pa., and an expert on special education law, said he agreed that Judge Alito seemed fair-minded on education cases.

“It’s very hard to tell from these cases whether he has a pro-plaintiff or pro-school-district bias,” he said.

Vol. 25, Issue 11, Pages 27,30

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