A Slim Record On Gay Rights

Samuel Alito has heard few cases; key ruling pitted free speech versus safe schools

The nomination of Samuel Alito to the Supreme Court by President George W. Bush this past Monday drew immediate fire from advocates for women’s reproductive rights, but it has been more difficult to find clear evidence of his views on gay rights and AIDS issues.

The Third Circuit Court of Appeals, based in Philadelphia, on which Alito has served for the past 15 years, has not confronted a heavy load of such cases, nor, on a court in which cases are heard by three-judge panels, has he been assigned all those that did emerge.

One case from 2001, for which Alito wrote the majority opinion, however, was quickly identified by gay rights advocates as a cause for concern. In Saxe v. State College Area School District, David Saxe, a member of the Pennsylvania State Board of Education who had two children in the State College public schools, went to court on his children’s behalf to challenge an anti-harassment policy newly adopted by the local school district. The policy threatened disciplinary sanctions against anybody harassing a student, and broadly defined harassment to include verbal abuse that might create a hostile environment and was based on the victim’s personal characteristics, including sexual orientation.

U.S. District Judge James F. McClure, Jr., in Harrisburg, granted a motion by the school district to dismiss the case, finding the policy constitutional. In reversing that decision, Alito, in a long, closely-argued opinion, wrote that Supreme Court precedents upholding hate crime and anti-discrimination statutes did not precisely decide this case because of the breadth of the school’s policy, and that this particular policy violated the students’ free speech rights to voice their views on controversial issues.

Saxe specifically alleged in his complaint that his children—Christians who considered homosexuality a sin and sought to say so without fear of being disciplined—would be unconstitutionally stifled by this policy. Alito agreed.

The Supreme Court has ruled that schools can curb student speech on many different grounds, including obscenity and vulgarity as well as its likelihood to substantially disrupt learning, but Alito wrote that the State College policy went beyond these bounds, subjecting speech that was merely “unwelcome” to sanction, based on vague guidelines. The policy specifically mentioned sexual orientation, however, so Saxe was correct that his children might be punished if they engaged in anti-gay harassment of other students.

Alito was particularly troubled by the bar on speech that “creates an intimidating, hostile, or offensive environment,” arguing that it could involve “any speech about some enumerated personal characteristics the content of which offends someone,” potentially including “core political and religious speech,” including “negative” or “derogatory” speech about subjects such as “sexual orientation.” Alito found that the goal of preventing educational disruption did not justify the restrictions on freedom of speech.

Protecting the right of people to be mean-spirited and offensive in public schools runs counter to efforts by gay advocates to press schools to take effective action to make it possible for gay students to receive equal educational opportunities. Alito’s argument finds the free speech principle more compelling, but his opinion suggested that he would have no constitutional objection to a more tightly drawn policy focused on conduct rather than speech.

If the decision shows anything else about Alito’s judicial approach, it is the rather narrow view he takes of past Supreme Court rulings upholding the application of civil rights laws to instances of harassment, including speech, as well as of schools’ ability to achieve their education goals in the face of derogatory speech between students. Some will hail Alito as a strong protector of uninhibited First Amendment expression; others will bemoan his hostility to government efforts to maintain a civil environment in which minority group members, including gay people, can thrive as equal participants. The decision is characteristic of what some commentators have called Alito’s restrictive approach to interpreting civil rights statutes generally.

The only other even relevant opinion authored by Alito also involves harassment in the schools, but the decision turned on principles of administrative law rather than the Constitution. In Shore Regional High School Board of Education v. P.S., decided in August 2004, the court was dealing with a dispute between a New Jersey school board and the father of a boy, named as P.S. in court documents and subjected to extremely homophobic harassment in middle school due to his slight build, lack of athletic skills, and effeminate manner. The father insisted that his son, who had become depressed and even suicidal, be allowed to attend a school out of district at Shore Regional’s expense, since his home district had failed to protect him.

P.S. had also been classified as having a perceptual impairment, and even though his professional evaluators believed that his “poor academic work was due to the bullying rather than any cognitive deficiencies,” under the Individuals with Disabilities Education Act, his impairment qualified him for “free appropriate public education” at Shore Regional’s expense. P.S.’s parents enrolled him out of district in Red Bank even though Shore Regional administrators maintained they had a program for him that would largely isolate him from other students for his protection.

The youth thrived at Red Bank, avoiding any further harassment and enjoying a theater program there. His parents wanted him to go on to the high school in that town. P.S. and his parents prevailed in a federal Education Department hearing, but the school won on appeal before U.S. District Judge Mary Cooper who was convinced Shore Regional’s program would protect P.S.

This time, the youth’s parents appealed to the Third Circuit, and Alito wrote the opinion upholding their position. Alito found that Cooper failed to give substantial weight to the administrative finding, and had provided no reason for rejecting the expert testimony supporting P.S.’s desire to attend Red Bank’s high school. P.S. was allowed to stay at Red Bank, a goal consistent with the efforts of advocates for LGBT youth in other cases.

Alito’s finding had more to do with an application of administrative procedure than with any view he might have on how schools should address concerns raised by gay or gender non-conforming students, but his opinion reflected a non-judgmental attitude and empathy for the problems P.S. encountered.

Alito faced no cases in which gay students aimed to hold school administrators liable under federal sex discrimination laws for failing to protect them from bullying, which have been litigated frequently in other federal courts. Nor has he contended with another emerging area of contention—whether LGBT employees subjected to workplace harassment have protection under the 1964 Civil Rights Act based on theories of gender nonconformity. Though the Supreme Court has addressed the issue glancingly in a decision finding that same-sex harassment could be prosecuted if it is due to the sex of the victim, lower federal courts are sharply split on just how this might apply in cases involving LGBT plaintiffs.

On all the other gay and HIV cases that Alito heard, he joined opinions written by other judges on the panels.

In one such case, the court rejected the claim by an HIV-positive gay Venezuelan that due to ineffective legal representation his application for asylum had been denied. In a fairly typical decision, the court found that although Randolph Rosal-Olavarrieta had received “less than optimal” representation from his attorney, the Immigration Judge had stepped in to question him directly but found his answers about what he might face if he returned to his homeland falling short of the standard needed to approve his claim. These asylum denial cases are heartbreaking to read, but the opinion was narrowly focused on the question of whether the legal representation was so incompetent as to taint the outcome of the appeal. The court found no clear evidence that was the case.

The remaining cases, all involving HIV-related legal issues, do not show any general trend in Alito’s thinking. In a 2001 case, a panel including Alito reversed a Pennsylvania district judge and held that a couple who had an HIV-positive son could pursue their discrimination claim against local government officials who disqualified them from being foster parents out of fear that their son might infect a foster child.

In another, an Alito panel found that a man convicted of kidnapping was not denied his privacy rights when ordered to provide a blood sample for HIV-testing. The court found that the statute authorizing the testing was narrowly focused on situations in which there was probable cause to believe the defendant engaged in conduct that might transmit HIV, thus satisfying the constitutional requirements for a search under the Fourth Amendment.

All of the other cases Alito heard turned on narrow, procedural issues.