Trump Nominates Brett Kavanaugh, Son of a Teacher, for U.S. Supreme Court

By Mark Walsh — July 09, 2018 9 min read
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President Donald J. Trump on Monday night named Brett Kavanaugh, a federal appeals court judge in Washington with a relatively light record of rulings on education, to succeed Justice Anthony M. Kennedy on the U.S. Supreme Court.

Kavanaugh, 53, has served since 2006 on the U.S. Court of Appeals for the District of Columbia Circuit, a court that rules on much litigation involving the federal government, although it has only one K-12 school district in its geographic jurisdiction—the District of Columbia public schools.

But Kavanaugh has ruled on a few K-12 and youth-related issues over his 13 years on the federal appeals court, including special education, drug testing of educators, and childhood vaccines.

“Judge Kavanaugh has impeccable credentials, unsurpassed qualifications, and a proven commitment to equal justice under the law,” Trump said in his White House announcement.

Kavanaugh grew up in Washington’s suburbs, the son of a public school teacher mother who later went to law school and became a Maryland state judge. At Georgetown Preparatory School in Bethesda, Md., an all-boys Roman Catholic school, Kavanaugh was two years ahead of future Supreme Court Justice Neil M. Gorsuch, and he was captain of the basketball team and played on the football team.

Kavanaugh graduated from Yale University in 1987 and Yale Law School in 1990 before embarking on a career that included serving as a law clerk to Kennedy, during the same term as Gorsuch did, in the 1993-94 term. Kavanaugh later worked for independent counsel Kenneth W. Starr’s investigation of President Bill Clinton, and served in the White House counsel’s office and as staff secretary to President George W. Bush.

Kavanaugh and his wife, Ashley, who served as a personal secretary to Bush when he was governor of Texas and president, have two daughters. The nominee reportedly serves meals at Catholic Charities and tutors at an elementary school.

In his remarks, Kavanaugh noted that both of his parents were present for the announcement and talked of their influence.

“I was lucky,” he said. “My Mom was a teacher. In the 1960s and ‘70s, she taught history at two largely African-American public high schools in Washington, D.C.—McKinley Tech and H.D. Woodson. Her example taught me the importance of equality for all Americans.”

The East Room of the White House was packed with Kavanaugh’s family members, administration officials, Republican U.S. senators, and some icons of conservative Washington, including Edwin Meese III, an adviser to and U.S. attorney general under President Ronald Reagan. Meese is now affiliated with the Heritage Foundation, which along with the Federalist Society vetted the names on President Trump’s list of prospective Supreme Court nominees.

Handful of Education Cases

Like federal appellate judges across the country, Kavanaugh has had to rule on his share of cases under the Individuals with Disabilities Education Act.

In a 2007 decision in Hester v. District of Columbia, Kavanaugh wrote the opinion for a three-judge panel that ruled against a student who sought compensatory special education services from the District of Columbia public schools for time he spent incarcerated in Maryland. The school system had agreed to provide the services to Antonio Hester, then 17, while in prison, but Maryland prison officials refused to allow them and provided their own services to the young man.

After his release, Hester sought the services from the District of Columbia school system. A federal district court agreed, but the appeals court reversed. Kavanaugh said “the agreement by its terms says nothing to suggest that D.C. would provide services after Hester’s release from prison in the event Maryland declined D.C.'s request for access to Hester and instead decided to provide special education services itself.”

“We understand and appreciate the desire of Antonio Hester, his family, and his representatives to secure additional special education services,” Kavanaugh wrote. “But the 2001 agreement between D.C. and Hester does not entitle Hester to such services from D.C.”

In 2008, in Adeyemi v. District of Columbia, Kavanaugh wrote the opinion for a unanimous panel that ruled against a deaf man who sued the District of Columbia schools for disability discrimination after he was passed over for an information technology job.

The school system in 2002 had abolished its existing employment positions and required current staff members to re-apply for jobs. James Adeyemi was an outsider who told interviewers that he could do the job by using writing as his basic communication. The school system kept five existing staff members for the information technology jobs and turned to applicants for a higher-level position to fill two other vacancies.

Adeyemi sued under the Americans with Disabilities Act, but a federal district court granted summary judgment to the school system. The D.C. Circuit affirmed.

“The record here shows that Adeyemi was not as qualified as either [of the two applicants for the higher position]--much less ‘significantly better qualified,’ as our cases require,” Kavanaugh wrote. “Under our precedents, the evidence of comparative qualifications here does not raise an inference of discrimination sufficient for Adeyemi to overcome summary judgment.”

In a 2012 case, Kavanaugh was the lone dissenter on a panel that struck down a program of random drug testing of employees at residential centers for at-risk youth operated by the U.S. Forest Service as part of the Job Corps.

The majority in National Federation of Federal Employees v. Vilsack held that the broad testing policy was “a solution in search of a problem” and did not comport with Supreme Court case law about suspicionless drug testing of public employees.

In his dissent, Kavanaugh said he would uphold the “common sense” drug-testing program.

“No Supreme Court case has addressed drug testing of public school teachers or other public school employees,” Kavanaugh observed. “This case likewise does not require us to resolve that broader question because this case raises a far narrower issue: drug testing of public employees at residential public schools for at-risk youth where many of the students have previously used drugs.”

He said that, applying the Fourth Amendment’s reasonableness standard and the balancing test set forth by the relevant precedents, he would uphold the government drug-testing program.

“A residential school program for at-risk youth who have a history of drug problems can turn south quickly if the schools do not maintain some level of discipline,” Kavanaugh wrote. “To maintain discipline, the schools must ensure that the employees who work there do not themselves become part of the problem.”

In another 2012 case, Kavanaugh wrote the opinion for a unanimous panel that rejected a lawsuit from parents who sought to suspend the Food and Drug Administration’s approval of vaccines that contain thimerosal, a mercury-based preservative that has sparked worry over possible links to autism despite scientific evidence to the contrary.

“We recognize plaintiffs’ genuine concern about thimerosal-preserved vaccines,” Kavanaugh wrote in Coalition for Mercury-Free Drugs v. Sebelius. “But plaintiffs are not required to receive thimerosal-preserved vaccines; they can readily obtain thimerosal-free vaccines. They do not have standing to challenge FDA’s decision to allow other people to receive thimerosal-preserved vaccines.”

“To be sure, plaintiffs point out that vaccination is often compulsory for children whose parents seek to enroll them in public schools,” he continued. “But thimerosal-free versions of required vaccines are available, as plaintiffs have conceded, so parents concerned about the effects of thimerosal can obtain thimerosal-free vaccines for their school-age children.”

Religion in the Public Square

In a 2010 case, Kavanaugh provided some insight about his views on government establishment of religion, an issue that frequently arises in the public schools.

In Newdow v. Roberts, a three-judge panel of the D.C. Circuit rejected as moot a constitutional challenge to prayers offered at President Barack Obama’s first inauguration, in 2009, as well as the use of the phrase “so help me God” in the presidential oath.

The challenge was brought by atheist Michael Newdow, the same litigant who had challenged recitations of the Pledge of Allegiance in the public schools because of the inclusion of the words “under God.” (The Supreme Court in 2004 dismissed Newdow’s challenge in that case because he lacked custody of his children and thus lacked standing to sue on their behalf.)

In Newdow’s case challenging the religious elements of the presidential inauguration, Kavanaugh concurred in the judgment, saying he thought Newdow and other plaintiffs had legal standing but that they should lose on the merits of their claim.

Kavanaugh stressed that atheists such as the challengers “have no lesser rights or status as Americans or under the United States Constitution than Protestants, Jews, Mormons, Muslims, Hindus, Buddhists, Catholics, or members of any religious group.”

A court cannot “resolve this case by discounting the sense of anguish and outrage plaintiffs and some other Americans feel at listening to a government-sponsored religious prayer,” he said. “At the same time, we likewise cannot dismiss the desire of others in America to publicly ask for God’s blessing on certain government activities and to publicly seek God’s guidance for certain government officials.”

The religious elements of the inauguration were akin the legislative prayers that the Supreme Court upheld in its 1983 ruling in Marsh v. Chambers, and they should be upheld, he said.

Kavanaugh noted that the inauguration concerned “government-sponsored religious speech at public events outside of the public-school setting.”

In a footnote, the judge referred to “ceremonial deism,” the principle that governmental references to God and prayers in the public square do not violate the First Amendment’s prohibition of government establishment of religion.

After citing a number of Supreme Court decisions or separate opinions that he suggested support that principle, Kavanaugh wrote, “Under the court’s precedents, these ‘ceremonial deism’ principles do not always translate to the public school setting where young students face inherent coercion.”

For that statement, Kavanaugh cited the high court’s 1962 decision in Engel v. Vitale, which struck down an official state prayer required to be recited in the public schools, and Lee v. Weisman, the 1992 decision holding that a clergy-led prayer at a middle school graduation ceremony violated the establishment clause. That decision was written by Kennedy.

Photo: President Donald Trump shakes hands with Judge Brett Kavanaugh after announcing Kavanaugh as his choice to replace Justice Anthony M. Kennedy on the U.S. Supreme Court.--Alex Brandon/AP

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