Brett M. Kavanaugh, President Donald J. Trump’s nominee to the U.S. Supreme Court, has argued for allowing students to lead prayers at high school events and supported the inclusion of religious schools in voucher programs.
Most of these views were expressed by Kavanaugh before he joined the federal appeals court in Washington in 2006, though last year he gave a speech in which he sympathized with the late Chief Justice William H. Rehnquist’s views in favor of greater accommodation of religion in public education.
In the 2017 lecture at the American Enterprise Institute, Kavanaugh appeared to praise Rehnquist’s criticism of the metaphor of the strict wall of separation between church and state as “based on bad history.”
He noted that Rehnquist tended to be in dissent in several cases striking down prayer in public schools, and wrote opinions that paved the way for the Supreme Court’s 2002 decision in Zelman v. Simmons-Harris in which the court (in an opinion by Rehnquist) held that a state voucher program that included religious schools did not violate the First Amendment’s prohibition against government establishment of religion.
“In the establishment clause context, Rehnquist was central in changing the jurisprudence and convincing the court that the wall metaphor was wrong as a matter of law and history,” Kavanaugh said in the lecture.
In 1999, Kavanaugh wrote a friend-of-the-court brief in support of a Texas school district’s policy of policy authorizing football game “invocations” to be delivered by an elected student speaker after the student body has voted on whether to have such messages.
The brief by Kavanaugh argued that a public school district need not, and could not under the U.S. Constitution, bar a student’s prayer from a school event. The school district’s policy is “entirely neutral toward religion and religious speech,” the brief said.
The U.S. Supreme Court disagreed in 2000, ruling 6-3 in Santa Fe Independent School District v. Doe that the prayers violate the establishment clause.
“These invocations are authorized by a government policy and take place on government property at government-sponsored school-related events,” Justice John Paul Stevens wrote for the majority.
In his dissent, Rehnquist said the majority opinion “bristles with hostility to all things religious in public life.”
At his confirmation hearing in 2006 for his nomination to the U.S. Court of Appeals for the District of Columbia Circuit, Kavanaugh was asked about his brief in the Santa Fe case and his views on religious liberty.
Kavanaugh said that if confirmed, “I would of course follow the precedent of the Santa Fe case.”
“In the Santa Fe case, I think the court concluded, based on the facts and circumstances of the case, that [the student invocation] could be attributed to the school and so was a violation of the establishment clause,” Kavanaugh said at the hearing. “I think the overall area represents a tension the Supreme Court has attempted to resolve throughout the years in terms of facilitating the free exercise of religion without crossing the establishment clause lines that the court has set out for many years now.”
He continued, “I know that the court in recent years has made clear in a number of cases that private religious speech, religious people, religious organizations cannot be, or should not be, discriminated against and that treating religious speech, religious people, religious organizations equally—n other words, on a level playing field with nonreligious organizations—is not a violation of the establishment clause.”
In a new report, the group Americans United for Separation of Church and State criticizes Kavanaugh’s brief in the Santa Fe case, saying it “completely ignored the effect of prayer at school functions on members of minority religions and people who are nonreligious.”
Kavanaugh co-authored a brief in another church-state case, Good News Club v. Milford Central School, which argued that a school district could not bar a Christian youth group from meeting on campus after school hours when it opened up its school to a variety of other community groups. The Supreme Court upheld that view in its 6-3 decision in the case, also in 2000.
Advocates have been pointing to areas of Kavanaugh’s record that suggest he is supportive of school choice. He reportedly said in a TV appearance in 2000 that school voucher programs that included religious schools would one day be upheld by the Supreme Court, which indeed happened with the court’s 2002 decision in Zelman.
At a 2004 confirmation hearing before the Senate Judiciary Committee (which was separate from his later hearing), Kavanaugh pointed out that he was the co-chair of the School Choice Practice Group of the Federalist Society, the organization of conservative lawyers. He did not elaborate on what that position entailed. And he responded to a written question from the committee that he had once worked on school choice litigation in Florida, “for a reduced fee.”
Lily Eskelsen García, the president of the National Education Association, sought to tie Kavanaugh to Trump, U.S. Secretary of Education Betsy DeVos, and “their wealthy and powerful allies [who] envision an America where public schools lose public funding to private, religious and for-profit schools, and educators lose their ability to advocate for themselves and their students.”
Kavanaugh “can’t be trusted to protect the interests of students and educators,” García said in a statement. “He praised rulings and legal theories that justify allowing public money being funneled into religious institutions; and he has predicted that a future Supreme Court would uphold school vouchers that go to private religious schools.”
A version of this news article first appeared in The School Law Blog.