Alito Nomination Favored by School Choice Advocates

Published January 1, 2006

President George W. Bush’s current nominee to the U.S. Supreme Court, Judge Samuel Alito, has a record on school choice that advocates find encouraging.

Alito, slated to fill the vacancy left by retiring Justice Sandra Day O’Connor, was nominated to the U.S. Court of Appeals for the Third Circuit by former president George H. W. Bush. He has served there since 1990.

Clint Bolick, president and general counsel for the Alliance for School Choice, said Alito’s nomination to the Supreme Court appears to be very good news for the school choice movement.

“He has an extensive record on the religious establishment and the religious liberty issues that are most relevant to school choice,” Bolick said. “And it is clear that he has a very firm grasp of First Amendment issues, and is a strong believer in the view that the First Amendment is not hostile to religion and in fact, requires neutrality with regard to religion.

“That should be very helpful as we continue defending the constitutionality of school choice programs and also attack the constitutionality of programs that exclude religious schools from the range of options,” Bolick said.

Religious Freedom

As an example of Alito’s approach, school choice and religious freedom supporters cite his 2004 ruling that the Child Evangelism Fellowship of New Jersey could advertise its Good News Club meetings in schools. Doing so, Alito opined, did not violate the U.S. Constitution’s establishment clause regarding the separation of church and state because students did not feel pressured to participate in the clubs.

The school board, however, engaged in “viewpoint discrimination” when it banned the evangelical literature because it allowed pamphlets from other groups such as the Boy Scouts, Alito wrote. If the school board was concerned people might think it had endorsed the religious fliers, Alito said, “teachers could explain the point to the students.”

Douglas W. Kmiec, a law professor at Pepperdine University, served with Alito in the U.S. Department of Justice during the Reagan administration. Kmiec is a leading proponent of religious liberty, advancing the view that the Constitution allows for a greater presence of religion in the public square than courts have previously allowed.

According to a November 21 New York Times article, Kmiec sees Alito as a fellow advocate of religious liberty.

“He is inclined to the view of the First Amendment that the government is not intended to be hostile to religion,” Kmiec told the Times. “It is intended to be accommodating when it can.”

While Bolick admitted no one can predict with certainty what a person will do as a Supreme Court justice, he’s encouraged by Alito’s nomination.

“We’re encouraged by what we see in his record with regard to the issues of greatest concern to school choice advocates,” Bolick said.

At press time, the National Education Association (NEA) had not taken a position on Alito’s nomination.

“NEA [is] only looking for a thorough hearing,” Cecil Cahoon, the union’s senior press officer, said. “Just for context, NEA took no position on Judge Roberts’ nomination last summer, either.”

Wendy Cloyd ([email protected]) is a freelance writer in Colorado Springs.

For more information …

More than one hundred documents addressing how the courts have ruled on school choice and other education matters–including the full text of more than a dozen court decisions–are available through PolicyBot™, The Heartland Institute’s free online research database. Point your Web browser to, click on the PolicyBot™ button, and select the topic/subtopic combination Education/Court Decisions.