School Climate & Safety

Supreme Court Nominee Grilled at Confirmation Hearing

Education topics feature in confirmation hearing
By Mark Walsh — September 11, 2018 5 min read
Brett M. Kavanaugh, President Donald Trump’s nominee for the U.S. Supreme Court, testifies before the Senate Judiciary Committee at his confirmation hearing to replace retired Justice Anthony Kennedy.
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School safety, religious liberty, and the nation’s legacy of segregation were among the education-related topics addressed by U.S. Supreme Court nominee Brett M. Kavanaugh in his confirmation hearing last week over several days of sharp questioning amid sometimes raucous protests.

Kavanaugh, a judge on the U.S. Court of Appeals for the District of Columbia Circuit, said on his first day of testimony that the nation’s efforts to fulfill the promise of the landmark Brown v. Board of Education of Topeka desegregation decision remain unfinished. But he declined to give his own views about how far schools and colleges could go in voluntarily considering race.

The 1954 Brown decision is “the greatest moment in Supreme Court history,” he said, but more than six decades later, “we’re still seeking to achieve racial equality. The long march for racial equality is not over.”

The unanimous opinion by Chief Justice Earl Warren “is so inspirational. I encourage everyone to read it,” Kavanaugh said. “It’s a relatively short opinion, but it’s very powerful.”

But pressed on affirmative action in higher education, Kavanaugh agreed only that current high court doctrine holds that seeking a racially diverse student enrollment is a compelling governmental interest.

“The government efforts to promote diversity in the higher education context are constitutional,” he said.

Kavanaugh, President Donald Trump’s nominee to succeed recently retired Justice Anthony M. Kennedy, appeared before the Senate Judiciary Committee on three of four days of hearings that were marked by jousting by Democrats and Republicans over documents and frequent interruptions by protesters.

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There was also an odd encounter between the nominee and the father of a student slain in the mass shooting at Marjory Stoneman Douglas High School in Parkland, Fla., on Feb. 14, who believes he was rebuffed when he attempted to shake Kavanaugh’s hand during a break. Kavanaugh’s White House handlers said a security agent had intervened before the nominee realized who Guttenberg was.

‘We All Detest’ School Violence

Guns and mass school shootings were a flashpoint throughout the hearing. Sen. Richard Blumenthal, D-Conn., referenced the 2012 mass shooting at Sandy Hook Elementary School in appealing to Kavanaugh to change his view that the Second Amendment does not prohibit certain semi-automatic weapons.

And at week’s end the committee was scheduled to hear testimony from Aalayah Eastmond, a student who survived the shooting at Stoneman Douglas by hiding under the body of a slain classmate.

Earlier in the week, Sen. Dianne Feinstein of California, the ranking Democrat on the committee, pressed Kavanaugh about his views on the “assault weapons” issue.

“I never thought this would happen in our country, that someone would bring a semiautomatic weapon into a school and just mow down children and staff,” Feinstein said.

“Senator, of course the violence in schools is something we all detest, and want to do something about,” Kavanaugh said. “And there are lots of efforts I know underway to make schools safer. I know at my girls’ school they do a lot of things now that are different from just a few years ago, in terms of trying to harden the school and make it safer for everyone.”

Kavanaugh’s two daughters attend a Roman Catholic K-8 school in Washington.

Feinstein asked Kavanaugh how he could reconcile recent school shootings using assault weapons with a dissent he wrote on his current court that would have struck down a local law prohibiting semi-automatic rifles. Kavanaugh said his view was based on his reading of the Supreme Court’s landmark 2008 decision in District of Columbia v. Heller, which upheld handgun possession in part because they are in common use by law-abiding citizens.

“Semi-automatic rifles are widely possessed in the United States,” Kavanaugh said. “I understand the issue. But as a judge, my job as I saw it, was to follow the Second Amendment opinion of the Supreme Court, whether I agreed with it or disagreed with it.”

‘A Place in the Public Square’

On another topic, Kavanaugh was asked several times about friend-of-the-court briefs he had co-written while a private lawyer in two religious speech cases, each of which argued for a lower wall of separation between church and state.

In Santa Fe Independent School District v. Doe, Kavanaugh co-wrote a brief in support of a Texas school district’s practice of allowing student-initiated, student-led prayers at football games. The Supreme Court ruled in 2000 that the district’s practice had a coercive effect on religious minorities and violated the First Amendment prohibition on government establishment of religion.

Kavanaugh said there had been high court decisions since Santa Fe “where I think the Supreme Court has recognized the importance of religious liberty in the United States.”

He cited Good News Club v. Milford Central School, a 2001 decision in which the court held that a school district violated the free speech rights of a student religious club when the club was excluded from using school facilities for its after-school meetings. Kavanaugh had co-written a brief in that case in support of the religious club.

He also cited Town of Greece v. Galloway, a 2014 ruling that allowed clergy-led prayers before municipal council meetings; and Trinity Lutheran Church of Columbia v. Comer, a 2017 decision that a state could not bar a church from a state grant program to improve children’s playgrounds. The latter case is also seen as one that might help those arguing that states may not bar religious schools from voucher and education aid programs.

“Religious speech is entitled to a place in the public square and not to be discriminated against,” Kavanaugh said. “So I think there have been some developments since [Santa Fe] on religious equality and religious liberty that are important.”

Senate Republicans are pushing hard for a confirmation of Kavanaugh before the Supreme Court’s 2018-19 term gets underway Oct. 1.

A version of this article appeared in the September 12, 2018 edition of Education Week as Supreme Court Nominee Takes Turn Under Lights


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