Opponents Target Kavanaugh on Private School Choice, Affirmative Action

By Mark Walsh — August 31, 2018 7 min read
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As the confirmation hearing nears for U.S. Supreme Court nominee Brett M. Kavanaugh, teachers’ unions and progressive groups are trying to get traction for their opposition to him by focusing in part on two education issues that could soon return to the high court—private school choice and affirmative action.

“Brett Kavanaugh’s record as a private citizen, lawyer, political staffer, and judge demonstrates that if confirmed to the Supreme Court, he would use that perch to advance Betsy DeVos and her allies’ agenda to privatize public schools,” the National Education Association said in an Aug. 29 report titled, “Kavanaugh Could Unleash Voucher Programs Throughout the Nation.”

“Kavanaugh has been a staunch proponent of vouchers,” says a report by Americans United for Separation of Church and State, and if he joins the court, it could end up ruling “that the Constitution requires government bodies to fund religious activity if they fund private secular activity.”

Meanwhile, the NAACP Legal Defense and Educational Foundation says in a report that Kavanaugh’s confirmation “would threaten the government’s ability to use race to promote diversity and halt discrimination.”

The White House defended Kavanaugh against the assertions in the groups’ reports.

“The highly partisan National Education Association has opposed Judge Kavanugh’s nomination from the moment it was announced,” said Kerri A. Kupec, a White House spokeswoman for the Kavanaugh confirmation effort. “The reality is, Judge Kavanaugh has never decided any cases implicating school choice.”

On race issues, she said Kavanaugh “has a distinguished record and life promoting equal opportunity. As a judge, he has recognized the country’s history of racial oppression, noting in a hostile work environment case involving the n-word, that ‘no other word in the English language so powerfully or instantly calls to mind our country’s long and brutal struggle to overcome racism and discrimination against African-Americans.’”

As a part-time professor, Kupec said, Kavanaugh “has diligently worked to ensure opportunities for African-American students and clerks. In speeches, he has referred to the Constitution’s initial tolerance of slavery as its ‘greatest flaw’ and ‘original sin.’”

Affirmative Action Record

Kavanaugh, President Donald Trump’s nominee to succeed recently retired Justice Anthony M. Kennedy, goes before the Senate Judiciary Committee on Sept. 4. After a summer of political skirmishing over the release of documents from Kavanaugh’s time as an aide to President George W. Bush, Senate Republicans are aiming to have the nominee confirmed in time for the Supreme Court’s new term, which begins Oct. 1.

Education Week has previously looked at Kavanaugh’s limited number of education-related rulings during his 12 years as a judge on the U.S. Court of Appeals for the District of Columbia Circuit. We have also examined briefs Kavanaugh filed backing student prayers at public schools and speeches that supported a lower wall of separation between church and state. And we have discussed a brief co-written by Kavanaugh in a Supreme Court case from Hawaii that argued government racial classifications can only rarely be upheld under the Constitution.

The NAACP LDF report says Kavanaugh’s 1999 brief in Rice v. Cayetano “gives us sufficient evidence of his views on the matter” of governmental racial classifications.

Kavanaugh’s “extreme views” on when race may be considered “are flatly inconsistent with Supreme Court precedent that race may be considered in certain circumstances and in a proper fashion,” the NAACP LDF report says.

The report also touches on e-mails Kavanaugh sent and received in 2003, when he was an associate White House counsel under President George W. Bush and the Supreme Court was weighing the constitutionality of race-conscious admissions programs at the University of Michigan.

The emails, also reviewed by Education Week, show that the cases were of extremely high interest to the Bush White House and to the counsel’s office. Kavanaugh attended meetings and closely followed the development of the administration’s brief in the case, which argued that the university’s admissions policies under review amounted to a quota system “that unfairly rewards or penalizes prospective students based solely on their race.”

In June 2003, as the court’s term wound down, Kavanaugh and others in the Bush White House were evidently preparing for a total victory in the cases. On June 23, just hours before the decisions came down, David G. Leitch, a fellow associate White House counsel, emailed Kavanaugh with a prepared statement for release, “on the assumption that the court strikes down the programs as not narrowly tailored.”

“The Supreme Court’s decisions today striking down the programs used by the University of Michigan deserve our complete respect,” the proposed statement read.

But the court, in Gratz v. Bollinger, struck down only Michigan’s undergraduate admissions program, which automatically awarded extra points to applicants from underrepresented minorities. In the separate case, Grutter v. Bollinger, the court upheld the law school’s admissions plan, which took race into account in a holistic review of applicants. That decision also preserved the idea that achieving a racially diverse enrollment was a compelling governmental interest.

The overall outcome was a bitter disappointment to the Bush White House and other opponents of affirmative action.

“What’s going on?” a White House staff member emailed Kavanaugh as the reports of the two rulings were coming in.

Kavanaugh took issue internally with a reaction on the White House website that said Bush “applauded” the decisions for “recognizing the value of diversity on our nation’s campuses.”

“The court today upheld an admissions program that the president asked—very publicly—for the court to hold unconsitutional,” Kavanaugh emailed to various White House staff members. “I think that makes it hard for him to ‘applaud’ the decisions even though he can applaud certain of the court’s reasoning.”

The White House press office evidently tweaked the web page in response to Kavanaugh’s concern.

If confirmed, Kavanaugh could cast a key vote on the next affirmative action case to come along. Kennedy joined the court’s liberal bloc in 2016 in upholding a race-conscious admissions program at the University of Texas at Austin. A legal challenge to affirmative action in admissions at Harvard University is making its way through the courts and is widely expected to reach the Supreme Court in the near future.

School Choice Activities

Meanwhile, the issue of private school vouchers has returned to public debate after a 2017 Supreme Court ruling that struck down a state’s exclusion of a church from a state aid program for improving children’s playgrounds.

In Trinity Lutheran Church of Columbia v. Comer, some members of the 7-2 majority indicated they would extend the principles of the ruling beyond playground resurfacing.

Since that ruling, lawsuits have been filed in Maine and Washington state challenging the exclusion of religious schools from state voucher or other aid programs based on state constitutional provisions barring aid to religion.

This has led groups opposing Kavanaugh to seek to connect the dots from his record on school choice issues to his potential vote in future cases.

The NEA, in its Kavanaugh report, cites the nominee’s informal role as the co-chair of the school choice subcommittee of the Religious Liberties Practice Group of the Federalist Society, the conservative legal group that helped advance his nomination.

And the NEA and Americans United point to Kavanaugh’s role as a private lawyer helping to represent then-Florida Gov. Jeb Bush defend his private school voucher initiative, the Florida Opportunity Scholarship Program, against a state and federal constitutional challenge.

The brief co-written by Kavanaugh argued that to avoid conflict with the U.S. Constitution, state constitutional provisions generally should not be interpreted to restrict public funding of religion more than the federal Constitution does.

“The legislature has not established the Opportunity Scholarship Program in lieu of the system of free public schools,” the brief said. “Indeed, the program is designed to improve the public school system.”

In 2006, well after Kavanaugh’s involvement with the case had ended, the Florida Supreme Court struck down the Opportunity Scholarship Program because it diverted funds to private schools in violation of the state constitution.

Clark Neily, a vice president of the Cato Institute who was representing private school parents in the Florida litigation when he worked for the Institute for Justice, said he did not think statements co-written by one lawyer and several other advocates in a state court brief were particularly germane to how that lawyer might rule as a Supreme Court justice.

“I would say that what ends up in a brief over the signature of a future Supreme Court nominee is not that relevant,” Neily said.

A version of this news article first appeared in The School Law Blog.