Law & Courts

Alito Is Pressed on Student Speech, Stance on Affirmative Action Issues

By Andrew Trotter — January 17, 2006 4 min read
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It took a while for education to squeeze past the dominant topics of abortion rights and wartime presidential powers last week at the confirmation hearings for Judge Samuel A. Alito Jr., President Bush’s nominee to the U.S. Supreme Court.

Amid a total of some 18 hours of questioning over three days by the Senate Judiciary Committee, Judge Alito addressed some key legal issues affecting schools.

As on most issues, Judge Alito was stoically noncommittal and revealed little about his judicial views on such issues as student religious expression, affirmative action, and protections of the rights of gay and lesbian students.

He defended a 2001 opinion that he wrote for a unanimous three-judge panel of the U.S. Court of Appeals for the 3rd Circuit, the Philadelphia-based court on which he has served since 1990, that struck down a Pennsylvania school district’s anti-harassment policy for students.

In that case, 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.

Asked about the case by Sen. Russell D. Feingold, D-Wis., Judge Alito said that the school policy was an overly broad restriction on students’ speech.

“It not only prohibited expression of political viewpoints, but went so far as to prohibit just about anything that you could say about another student,” the nominee said.

Judge Alito then noted that the Supreme Court’s 7-2 opinion in the 1969 case of Tinker v. Des Moines Independent Community School District—which he mistakenly said was written by Justice William J. Brennan Jr., instead of the author, Justice Abe Fortas—held that schools have a greater ability to regulate student speech than governments have to regulate adult speech.

But “that right is not unlimited,” he continued. “There has to be a threat of disruption on school grounds or [the speech must] violate the rights of other students.”

Old School Ties

Affirmative action in schools first came up in questions Jan. 10 by Sen. John Cornyn, R-Texas, who described Judge Alito’s rejection of a school district’s affirmative action policy as a mainstream position in the mold of retiring Justice Sandra Day O’Connor, whose seat Judge Alito would take if confirmed by the Senate.

Sen. Cornyn noted that in the 1986 case of Wygant v. Jackson Board of Education, Justice O’Connor had joined a decision striking down a Michigan district’s plan favoring minority teachers when layoffs were necessary.

As an example of a similar stance by Judge Alito, Sen. Cornyn cited a 1996 case involving a New Jersey school district’s affirmative action plan. He said that the nominee had joined an 8-4 decision of the full 3rd Circuit court that ruled against the district’s decision to retain a black teacher over her white colleague when it needed to lay off a member of a high school’s business education department.

“It wasn’t a close vote,” said Judge Alito, adding, “I sit on a very moderate court that is certainly not unreceptive to the concept of affirmative action in general.”

Much more recently, Justice O’Connor wrote the majority opinion in Grutter v. Bollinger, which upheld an affirmative action plan for admissions to the law school at the University of Michigan.

In testimony before the Judiciary Committee on Jan. 12, Judge Alito noted, noncommittally, that Grutter, and Gratz v. Bollinger, a companion 2003 Supreme Court case that rejected the University of Michigan’s undergraduate-admissions program because it automatically awarded bonus points to members of certain minority groups, set the boundaries for affirmative action in education.

For long stretches of the hearings, Judge Alito fended off sharp Democratic questioning about his membership in a group called the Concerned Alumni of Princeton, which he had noted on an application for a job in the Reagan administration in the 1980s. The group took positions opposed to affirmative action for women and minorities at Princeton University, Judge Alito’s alma mater.

The nominee said repeatedly he had little recollection of the group but had probably joined because he shared its view that the university should not have discontinued its Reserve Officers’ Training Corps program.

Government and Religion

Judge Alito discussed religion in the schools in several discussions with Sen. Richard J. Durbin, D-Ill.

Asked to choose among various tests that the high court has used to consider whether a government action violated the U.S. Constitution’s prohibition against any government establishment of religion, Judge Alito said he did not have his own “grand, unified theory of the establishment clause.”

“I certainly agree that it embodies a very important principle and one that has been instrumental in allowing us to live together successfully as probably the most religiously diverse country in the world, and maybe in the history of the world,” he said.

On a different issue, Sen. Durbin suggested that the judge’s decisions have tilted against “the average person, the dispossessed person, the poor person.”

In response, Judge Alito described a case he had decided involving a high school student who, as he recounted it, had been bullied unmercifully by other students because of their perception of his sexual orientation.

“And I wrote an opinion upholding [the family’s] right to have him placed in a safe school in an adjacent municipality,” Judge Alito said. “And that’s just one example.”

“But all of these cases involve what judges are supposed to do,” he continued, “which is to take the law and apply it to the particular facts of the case that is before them.”


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