Judge Alito in C.H. v. Oliva

            Over the course of his 15 years as a federal appellate judge, Judge Samuel A. Alito, Jr. consistently has given full effect to the First Amendment’s guarantees of religious liberty.  C.H. v. Oliva, 226 F.3d 198 (3d Cir. 2000) (en banc), is a key case in which he refused to sanction the efforts of public school administrators to discriminate against religious speech.

            In Oliva, an elementary school encouraged students to contribute to a Thanksgiving display on school property.  In particular, the pupils were invited to make posters depicting the things for which they were thankful.  One of the students, a Christian, decided to make a poster expressing his thanks for Jesus Christ.  Although the school permitted the display of other students’ posters giving thanks for certain secular things, it barred the Christian student from displaying his poster expressing thanks for Jesus.  The school also barred the student from reading religious-themed stories to his class, despite the fact that other students were permitted to read secular stories to their classes.

            The en banc Third Circuit upheld the school’s decision to exclude the Christian poster and to bar the reading of Christian stories.  In dissent, Judge Alito argues that the school had violated the First Amendment by discriminating against religious speech.  According to Judge Alito, “public school students have the right to express religious views in class discussion or in assigned work. “ Id. at 210.  In particular, “the poster was allegedly given discriminatory treatment because of the viewpoint that it expressed, because it expressed thanks for Jesus, rather than for some secular thing.  This was quintessential viewpoint discrimination, and it was proscribed by the First Amendment . . . .” Id. at 212.