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Richard Arum and Jonathan Zimmerman: In Education, Alito is an Activist

[ Richard Arum and Jonathan Zimmerman teach sociology and history,
respectively, at New York University's Steinhardt School of Education.
Arum is the author of Judging School Discipline: The Crisis of Moral
Authority and Zimmerman is the author of Whose America? Culture Wars in
the Public Schools, both from Harvard University Press.]

  Sam Alito is a conservative. Eschewing judicial activism, Alito
defers to the good-faith efforts of prosecutors, police officers,
prison wardens, trial judges, and juries. Like newly confirmed Chief
Justice John R. Roberts, Alito sees himself as an umpire rather than a
player. Unless there's a clear and obvious violation of the rules,
then, Alito will let the game go on.  
  That's the received wisdom about Supreme Court nominee Samuel A.
Alito, whose confirmation hearings will start next week. And the
received wisdom is correct, with one glaring exception: the governance
of schools. In his 15 years as an appellate judge, Alito deferred to
everyone but school boards, principals, and teachers. When it comes to
education, in fact, Sam Alito is no conservative. Instead, he's a
raging judicial activist.  
  Take his dissent in C.H. v. Oliva, in which a New Jersey school
removed a child's poster of Jesus from a Thanksgiving display. Although
the school returned the poster to the display the very next day, Alito
said courts should entertain a lawsuit by the child's parents. "Public
school authorities may not discriminate against student speech based on
its religious content," Alito wrote. "Recognition of this important
principle would not interfere with the operation of the public
  We disagree. Over the past four decades, courts have shown a
disturbing penchant for meddling with the day-to-day operations of
schools. As a result, principals and teachers have lost a good deal of
the moral authority that they once possessed. In too many instances
around the country, activist judges--not schools--determine what's best
for American children.  
  And Sam Alito has been more activist than most. Examining all of
Alito's rulings and dissents in cases related to educational practice,
we found that Alito was more than twice as likely as the average
appellate judge to side with challengers to American schools. And in
cases involving K-12 public school discipline and student expression,
Alito favored challengers five times out of eight.  
  In Saxe v. State College Area School District, for example, Alito
struck down a school anti-harassment policy that had been designed to
protect gay students, among others. Why? Because conservative parents
said the policy would limit students' ability "to speak out about the
sinful nature and harmful effects of homosexuality." In Pope v. East
Brunswick Board of Education, meanwhile, Alito censured school
officials for refusing to award official recognition to a student Bible
  The common theme here is an extreme skepticism--bordering on
cynicism--about school officials' motives, competence, and judgment. Of
course principals and teachers must remain sensitive to the free-speech
rights of all students, including right-wing Christians. But we also
need to give these adults enough respect and authority to uphold these
freedoms and to balance them against other, equally important
imperatives. ..