Judge Samuel Alito, President Bush’s nominee to the U.S. Supreme Court, ruled that students who are harassed because they appear to be gay can qualify for “special education” benefits, meaning their home school districts must pay for schooling elsewhere, including private schools.

There may be other reasons to oppose Alito – views on abortion, for example – but he’s hardly a homophobe.

In fact, the attorney who argued this case described Alito as “sympathetic, sensitive and supportive” of a student whose classmates harassed him daily because they perceived him to be gay.

The case involved P.S., then a teen who attended a middle school in New Jersey. “Most of the harassment of P.S. focused on his lack of athleticism, his physique and his perceived effeminacy. Bullies constantly called P.S. names such as “faggot,” “gay,” “homo,” “transvestite,” “transsexual,” “slut,” “queer,” “loser,” “big tits” and “fat ass.” Bullies told new students not to socialize with P.S. Children threw rocks at P.S., and one student hit him with a padlock in gym class. When P.S. sat down at a cafeteria table, the other students moved. Despite repeated complaints, the school administration failed to remedy the situation,” Alito wrote in Shore School Dist. v. P.S.

“The constant harassment began to cripple P.S. He became depressed, and his schoolwork suffered. When P.S. was in fifth grade, his mother, on the recommendation of the school psychologist, obtained private psychiatric counseling for him. The psychiatrist diagnosed P.S. with depression and prescribed medication, but there was no appreciable improvement.”

Because the bashing made it impossible to learn, P.S.’s school district classified him a “special education” student, a term most people normally ascribe to one who suffers from a severe physical, mental or learning disability.

But under New Jersey law, if a child cannot learn because of harassment, that allows the district to provide special attention from his school

So the school placed him in an alternative physical education class to help him with his physical skills and to avoid the locker room changing period, during which other children ridiculed his physique. The school also permitted P.S. to change classes at special times so that he would not encounter other students in the hallways and could thus avoid the harassment that customarily occurred there.

Alito noted that those measures did help, but that when P.S. was in eighth grade “the harassment became so intense that P.S. attempted suicide. At the request of his psychiatrist, who explained that P.S.’s life and health were at stake, P.S. received home schooling for six weeks.”

Rather than have their son continue in the neighborhood high school, where he would be with the same bullies, his parents found another high school for their son out of the school district.

Federal law requires that “disabled” students receive a “free and appropriate education.” School districts must provide special accommodations for disabled students.

The school district in this case did not want to spend the funds to send P.S. to a neighboring school district. There would be tuition, cost of transportation, etc. So the district refused and P.S.’s parents sought a hearing before an official of the New Jersey Department of Education.

The official, known as an administrative law judge, ruled in favor of P.S. He heard testimony from various experts who had evaluated P.S. and concluded that, no matter what the school district claimed it could do, P.S. would still see the same bullies that the district had failed to discipline in the past.

But when the school district appealed to a federal district court judge, that judge ruled that the school, despite the presence of the bullies who had tormented P.S. from his earliest days in school, could still provide him with a good education. The judge’s decision had the effect of letting the school district off the hook for costs of attending the neighboring school.

On appeal, Judge Alito wrote that the judge was wrong to substitute her judgment for the administrative law judge’s (ALJ). Alito wrote that the judge failed to give “due weight” to the ALJ’s finding that P.S. could not get an “appropriate” education from his home school district.

The decision is remarkable because Alito’s opinion does not discount the effects of bullying students perceived to be gay. Rather, it takes school districts and judges to task for denying the effects of bullying on children.