Bush's Latest Choice

November 1, 2005

Judge Samuel Alito, President Bush's new nominee for the U.S. Supreme Court, has not written many decisions that relate directly to higher education. But he has taken strong First Amendment stands in defending the rights of a student newspaper and in questioning anti-harassment rules at a public school.

Judge Alito currently sits on the U.S. Court of Appeals for the Third Circuit and the decisions and dissents he wrote there that are likely to receive the most scrutiny in the weeks ahead concern abortion (he's viewed as a critic). Another area where his decisions are well known -- and that may relate more directly to colleges -- concerns lawsuits by employees against their employers. Generally, Alito has been skeptical of discrimination claims and of affirmative action, although most of the cases in which he has ruled did not involve higher education, and courts frequently apply different standards in considering colleges.

Following are some of the decisions and dissents of Judge Alito on education.

  • Student press. In 2004, he wrote a decision for Third Circuit throwing out a Pennsylvania law that barred student newspapers affiliated with public colleges from running advertising from alcohol-related companies. Judge Alito's decision largely accepted arguments made by The Pitt News that the law was unconstitutional. A lower court had ruled that there was no First Amendment issue because the law didn't apply to editorial content. But Judge Alito's decision noted the impact of the lost revenue on the paper and questioned whether the state had met the test for showing that any infringement on press freedom was necessary.
  • Students with disabilities. In 1994, Judge Alito dissented in part from an appeals court decision on whether a lawsuit could go forward against the Medical College of Pennsylvania, and he was criticized by the majority in the case for setting the bar too high for disability-based discrimination cases to go forward. An important note: There were many side issues in this case, so it is not an ideal one for predicting future decisions.
  • University employees. In 1996, Judge Alito wrote a dissent arguing that East Stroudsburg University was within its rights to suspend without pay a police officer arrested on drug-related charges.
  • Harassment. In 2001, Judge Alito backed a legal challenge to a school district's anti-harassment policy. In his decision, Judge Alito pointedly said that the First Amendment applied to anti-harassment policies and he questioned why this one went beyond federal requirements.

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