Alito Nomination: On His "Gay Cases"
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Some bloggers are expressing concern over two decisions written by Supreme Court nominee Samuel Alito, each of which concerns litigation involving the status of gay or gay-perceived schoolchildren.
I've read both of the decisions, and neither really involves "gay rights" directly. More importantly, neither is troubling from a libertarian perspective.
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Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001) is not so much a gay rights case as a First Amendment case. In short, a Pennsylvania school district passed a combination "no harassment" and "hate speech" policy that essentially forbade any and all conduct, including mere verbal expression of disapproval (e.g., "homosexuality is wrong"), by any student that offended any other student. Hardly an uncontroversial proposition.
Christian parents in the school district sued, claiming (correctly) that the anti-harassment code would prevent their children from expressing their view that homosexuality is immoral. The trial court judge sided with the school, on the notion that there is a well-settled "harassment exception" to the First Amendment. There is, in fact, no such thing.
The unanimous Third Circuit panel, in a decision written by Judge Alito, merely reiterated the patent inaccuracy of the lower court's First Amendment analysis and reinstated the distinction between physical harassment, which of course can be prohibited and punished in a school setting (or anywhere else, for that matter), and verbal conduct — which, like it or not, is generally protected speech, even in a school setting.
The decision did not decree that there is a "right to tease, taunt or bully" and did not disturb the "fighting words" exception to the First Amendment. It merely reiterated the now well-settled doctrine that school speech codes are constitutionally suspect, that there is a difference between mere verbal expression and physical violence (or between mere verbal expression and threats), and that schoolchildren do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate" (see Tinker v. Des Moines, 393 U.S. 503 (1969)).
A judge taking an expansive, pro-liberty view of the First Amendment — why exactly am I supposed to be upset?
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Shore Regional High School Board v. P.S., 381 F.3d 194 (3d Cir. 2004), is even more of a yawner. A male middle-school student in Oceanport, New Jersey, was relentlessly and viciously teased for, to put it mildly, "perceived effeminacy." The bullying was so intense that it seriously interfered with the boy's education and psychological development.
When it came time for the boy to enter high school, his parents applied to a nearby private high school, which admitted the boy. The parents then sued the public school district to pay his tuition under the Individuals with Disabilities Education Improvement Act, 20 U.S.C. §§1400-1487.
The case went to an Administrative Law Judge ("ALJ"), who heard various expert witnesses from each side and ruled in favor of the parents. The school district then appealed the decision to a regular federal district court judge, who overturned the ALJ based solely on a different weighing of the expert witnesses' testimonies.
This is (apparently) a rather flagrant violation of administrative law rules, and Justice Alito's Circuit Court opinion does nothing more than reinstate the ALJ's decision based solely on those rules. The underlying substantive law regarding the right to an education free of anti-gay harrassment was in no way part of Alito's decision.
In other words, this was a boring old administrative law case that happened to involve an unfortunate young victim of extreme anti-gay bigotry. That is not the same as a "gay rights case."
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Summaries of Judge Alito's other noteworthy cases, with links, are at Nomination Blog.
I've read both of the decisions, and neither really involves "gay rights" directly. More importantly, neither is troubling from a libertarian perspective.
---
Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001) is not so much a gay rights case as a First Amendment case. In short, a Pennsylvania school district passed a combination "no harassment" and "hate speech" policy that essentially forbade any and all conduct, including mere verbal expression of disapproval (e.g., "homosexuality is wrong"), by any student that offended any other student. Hardly an uncontroversial proposition.
Christian parents in the school district sued, claiming (correctly) that the anti-harassment code would prevent their children from expressing their view that homosexuality is immoral. The trial court judge sided with the school, on the notion that there is a well-settled "harassment exception" to the First Amendment. There is, in fact, no such thing.
The unanimous Third Circuit panel, in a decision written by Judge Alito, merely reiterated the patent inaccuracy of the lower court's First Amendment analysis and reinstated the distinction between physical harassment, which of course can be prohibited and punished in a school setting (or anywhere else, for that matter), and verbal conduct — which, like it or not, is generally protected speech, even in a school setting.
The decision did not decree that there is a "right to tease, taunt or bully" and did not disturb the "fighting words" exception to the First Amendment. It merely reiterated the now well-settled doctrine that school speech codes are constitutionally suspect, that there is a difference between mere verbal expression and physical violence (or between mere verbal expression and threats), and that schoolchildren do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate" (see Tinker v. Des Moines, 393 U.S. 503 (1969)).
A judge taking an expansive, pro-liberty view of the First Amendment — why exactly am I supposed to be upset?
---
Shore Regional High School Board v. P.S., 381 F.3d 194 (3d Cir. 2004), is even more of a yawner. A male middle-school student in Oceanport, New Jersey, was relentlessly and viciously teased for, to put it mildly, "perceived effeminacy." The bullying was so intense that it seriously interfered with the boy's education and psychological development.
When it came time for the boy to enter high school, his parents applied to a nearby private high school, which admitted the boy. The parents then sued the public school district to pay his tuition under the Individuals with Disabilities Education Improvement Act, 20 U.S.C. §§1400-1487.
The case went to an Administrative Law Judge ("ALJ"), who heard various expert witnesses from each side and ruled in favor of the parents. The school district then appealed the decision to a regular federal district court judge, who overturned the ALJ based solely on a different weighing of the expert witnesses' testimonies.
This is (apparently) a rather flagrant violation of administrative law rules, and Justice Alito's Circuit Court opinion does nothing more than reinstate the ALJ's decision based solely on those rules. The underlying substantive law regarding the right to an education free of anti-gay harrassment was in no way part of Alito's decision.
In other words, this was a boring old administrative law case that happened to involve an unfortunate young victim of extreme anti-gay bigotry. That is not the same as a "gay rights case."
---
Summaries of Judge Alito's other noteworthy cases, with links, are at Nomination Blog.
Related Posts (on one page):
- Final Thoughts on the Alito Confirmation
- Alito Nomination: On His "Gay Cases"
- Alito Nomination: I Got Nothing -- Which is Not a Bad Thing
Posted by Kip on
31 October 2005
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