Washington Blade - November 7, 2005
Lou Chibbaro Jr.

The unanimous decision by the 3rd Circuit U.S. Court of Appeals in Philadelphia - where Alito has served as a judge since 1990 - declared that the policy adopted by Center County, Pa., violated a clause in the Americans With Disabilities Act, which bans AIDS related discrimination.

Alito's support for the 2001 decision, which was hailed by AIDS activists, came 15 years after he helped write a Justice Department opinion during the Reagan administration asserting that employers had a legal right to fire people with HIV due to "fear of contagion, whether reasonable for not."

The two, seemingly contradictory actions by Alito on AIDS issues have prompted gay rights attorneys to continue to examine his long record of legal writings to determine how he would likely rule on gay and AIDS related issues on the Supreme Court.

"We have to look at the good and the bad," said Lisa Hardaway, spokesperson for Lambda Legal Defense and Education Fund, a gay legal advocacy group that is studying Alito's record.

Lambda has said it would withhold judgment on Alito's nomination until after he testifies at his Senate confirmation hearing, which is expected to take place in January.

"We don't know what we might find tomorrow or the next day," Hardway said.

In the 2001 foster care case, the Centre County Children and Youth Services agency adopted a policy barring the placement of HIV-negative children in homes with children who have HIV. The agency adopted the policy after a husband and wife team, who won awards for their past service as foster parents, applied to take in a foster child into a home in which one of their own children, an 11-year-old boy, had AIDS.

The agency said it was concerned that "roughhousing" between children could lead to HIV transmission. The agency also sited statistics showing that a significant percentage of foster children in their teenage years engaged in sexual assault against other children. The agency argued that an HIV-negative foster child might sexually assault the HIV-positive child and contract HIV.

The foster parents, identified only as Mary Doe and John Doe, of State College, Pa., filed suit in federal court to overturn the policy. The U.S. District Court upheld the policy, and the parents appealed to the 3rd U.S. Circuit Court of Appeals.

In its unanimous ruling, the appeals court ruled that the Americans With Disabilities Act bars the type of policy adopted by the county, saying the risk of HIV transmission from the 11-year-old boy to a potential foster child was remote and did not reach a threshold for such risk provided under the disabilities law.

The county's "blanket policy discriminates against the Does because of [their son's] HIV-positive status even though the probability of HIV transmission, and consequently the risk, is next to zero," the decision stated.

The Washington Post last week disclosed the 1986 Justice Department opinion that Alito helped write.

"We certainly did not want to encourage irrational discrimination, but we had to interpret the law as it stands," the Post quoted Alito as saying sometime after the Justice Department released its 1986 opinion.

The opinion was drafted when Alito worked in the Justice Department's Office of Legal Counsel and was assigned to do research on whether existing law protecting people with disabilities could be invoked to ban AIDS related discrimination.

The opinion concluded that disability-related laws did not protect people with AIDS from discrimination, even if the discrimination was based on faulty, unproven , or "irrational" medical assumptions, including the belief that AIDS could be transmitted by casual contact.

Alito's role in writing the controversial opinion has prompted the National Association of People with AIDS to oppose his nomination to the Supreme Court.

"If this is an example of the kind of legal thinking he has, it's very unsettling," said Terje Anderson, the executive director for NAPWA.

Anderson said that although the opinion was written before Congress passed the Americans With Disabilities Act, existing disability rules and statutes could have been cited to ban HIV discrimination.

News also surfaced last week that Alito as a federal appeals court judge ruled against one gay-related case while ruling in favor of another. In a 2000 case that involved a court challenge to a school policy seeking to ban harassment against students based on such categories as sexual orientation, race, and religion, Alito ruled against the policy. Alito, who wrote the decision, said the anti-harassment policy infringed on First Amendment rights because students on campuses have a right to voice their opposition to homosexuality.

In another gay-related case in 2004, which Alito also wrote, he stated that a school system in Pennsylvania should be required to pay tuition for a high school student sought to enroll in a school outside his school district to avoid anti-gay harassment. Although the student was not identified as gay, Alito noted he was derided and bullied, and called a "faggot," because he appeared effeminate. Alito stated that the school district had failed to provide adequate protection against the bullying and derisive behavior within the district.

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