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Law & Courts

Hearings on Alito Are Likely to Play Down Education

By Andrew Trotter — January 09, 2006 4 min read

Education-related issues are expected to take a back seat to questions about abortion rights and presidential powers during the possibly lengthy grilling of U.S. Supreme Court nominee Samuel A. Alito Jr. by the Senate Judiciary Committee that was set to begin this week.

“The sexy issues for the media are going to be the abortion issue, not really the education piece,” said Francisco Negrón, the general counsel of the National School Boards Association, in Alexandria, Va.

Confirmation hearings for Judge Alito, which were to begin Jan. 9, may run longer and hotter than those for John G. Roberts Jr., which lasted 10 days in September, followed by the Senate’s 78-22 vote to confirm him as the U.S. chief justice on Sept. 29.

This time around, some senators, especially Democrats, who number eight on the 18-member judiciary panel, are especially leery of the evident conservatism of President Bush’s nominee, principally because Judge Alito would replace Justice Sandra Day O’Connor, a moderate who has cast the decisive vote on numerous education decisions over the years. (“O’Connor Played Key Role in School Cases,” July 13, 2005.)

Judge Alito, who has served since 1990 on the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, has a 15-year record of court rulings and opinions, including many cases involving education. (“Alito Has Lengthy Record of Opinions in School Law,” Nov. 9, 2005.)

The NSBA, which often files friend-of-the-court briefs on education-related cases in the Supreme Court, has not taken a position on Judge Alito’s confirmation, Mr. Negrón said.

The National Education Association, however, was expected to announce its opposition to Judge Alito before the start of the hearings.

‘Pretty Predictable’

Mr. Negrón of the NSBA said his staff members have been studying decisions that affect education that Judge Alito has written in his years as an appeals court judge—a “pretty predictable” record, he said.

Mr. Negrón said Judge Alito’s decisions suggest a view of the First Amendment’s free-exercise-of-religion guarantee that would favor students and outside groups in religious expression cases on public school campuses, rather than favoring the amendment’s prohibition against government establishment of religion.

“In some of his cases, he appears to be aware of the impact of the establishment-clause litigation on schools; he appears willing to insulate public schools [from lawsuits] if they disclaim that they are endorsing a particular action,” Mr. Negrón said.

Except for cases that involve free speech and religious freedoms, Judge Alito often places trust in the authority of government, including school districts, he said. “Certainly his decisions seem to suggest that he may be a ‘trust government’ guy, but when it comes to issues involving First Amendment issues or religious-freedom issues, he is not,” Mr. Negrón said.

Mr. Negrón found in Judge Alito’s decision some other “good news for public schools: his decisions tend to be pro-employer.”

Of Judge Alito’s qualifications, Mr. Negrón said there was “no question.”

“I agree with the [American Bar Association] that he is [well] qualified in his credentials,” he said. “He’s a very artful writer.”

Judge Alito’s political conservatism has been underscored in the hundreds of documents by or about him that have become public since President Bush nominated him on Oct. 31.

Affirmative Action Brief

In response to a Senate Judiciary Committee questionnaire in November, Judge Alito mentioned that among his legal accomplishments was co-authorship of the friend-of-the-court brief for the Reagan administration in Wygant v. Jackson Board of Education, an affirmative action case that the Supreme Court decided in 1986.

The case involved a contract between the Jackson, Miss., school board and its teacher union, which protected from layoffs the teachers with the most seniority as well as a quota of minority teachers that exceeded the percentage of minorities employed at the time of a layoff. The provision was essentially an affirmative action measure, although the district had not been accused of having a history of discrimination against minorities in employment.

The provision was challenged by laid-off white teachers, leading to a Supreme Court review.

In arguing for reversal, the government brief co-authored by Mr. Alito said “the layoff quota adopted by the Jackson school board emphatically flunks the constitutional standards governing racial classifications.”

Arguing against a lower-court finding that the measure resulted in more role models for minority youths, the brief said, “we believe that special wariness is appropriate whenever an attempt is made to justify a racial classification, not for the purpose of righting past wrongs, but simply because it is asserted that social institutions would work better or more smoothly.”

The Supreme Court struck down the affirmative action provision, holding in a plurality opinion by Justice Lewis F. Powell Jr. that the teachers’ layoffs stemmed from race. It therefore violated the equal protection clause of the Constitution, the opinion said, because the school district failed to justify racial classification with a compelling state interest or to show that the provision was a narrowly tailored measure to achieve that goal.

Those principles, nearly 20 years later, remain an active subject for the Supreme Court’s jurisprudence.


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