Law & Courts

Pick for U.S. Supreme Court Has Light Record of Education Rulings

By Mark Walsh — July 17, 2018 4 min read
President Donald Trump talks with Judge Brett M. Kavanaugh, his latest Supreme Court nominee, at the White House annoucement. Kavanaugh was joined by his wife, Ashley, and their daughters Margaret, second from left, and Liza.
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Brett M. Kavanaugh, a federal appeals court judge in Washington with a relatively light record of rulings on education, is President Donald Trump’s pick 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, but has only one K-12 school district in its geographic jurisdiction—the District of Columbia public schools.

Kavanaugh has ruled on a few K-12 and youth-related issues over his 13 years on the federal appeals court, including special education and drug testing of educators. And in legal briefs he helped write or in other forums, he has expressed views on issues of church-state separation and private school choice.

“Judge Kavanaugh has impeccable credentials, unsurpassed qualifications, and a proven commitment to equal justice under the law,” Trump said in introducing the nominee at the White House on July 9.

The teachers’ unions joined other progressive groups in announcing their opposition to the nomination.

Randi Weingarten, the president of the American Federation of Teachers, said Kavanaugh’s “rulings raise very serious concerns about where he stands on key issues like employees’ right to organize, workplace discrimination, voting rights, marriage equality, access to reproductive health care, and corporate responsibility.”

Lily Eskelsen García, the president of the National Education Association, said Kavanaugh “can’t be trusted to protect the interests of students and educators.”

Personal Story

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.

In remarks at the White House announcement, Kavanaugh noted that his mother 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,” he said.

On the federal appeals court in Washington, Kavanaugh has ruled on a handful of cases involving special education, school employment, and drug testing of public employees.

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.

“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 in his dissent in National Federation of Federal Employees v. Vilsack. “To maintain discipline, the schools must ensure that the employees who work there do not themselves become part of the problem.”

Kavanaugh’s views on religion in public education were attracting attention, based on some Supreme Court briefs he had filed before joining the appeals court and a speech he gave just last year.

In the 2017 lecture at the American Enterprise Institute, Kavanaugh praised the late Chief Justice William H. Rehnquist’s criticism of the metaphor of the strict wall of separation between church and state as “based on bad history.”

“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 authorizing football game “invocations” to be delivered by an elected student speaker after the student body voted on whether to have such messages. The district’s policy is “entirely neutral toward religion and religious speech,” the brief said.

The Supreme Court disagreed in 2000, ruling 6-3 in Santa Fe Independent School District v. Doe that the prayers violate the First Amendment’s prohibition against government establishment of religion.

At his appeals court confirmation hearing in 2006, Kavanaugh said he would follow the Santa Fe precedent, but “the overall area represents a tension the Supreme Court has attempted to resolve” between the free exercise of religion and the establishment clause.

‘No Lesser Rights’ for Atheists

In a report last week, the group Americans United for Separation of Church and State criticized 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.”

In a 2010 case, Kavanaugh said he would have upheld prayers at President Barack Obama’s 2009 inauguration, as well as the phrase “so help me God” in the presidential oath. Americans United said that the concurrence in Newdow v. Roberts, combined with his brief in the high school football prayer case, showed that Kavanaugh would be willing to relax restrictions on government-sponsored prayers at public schools.

But in the same concurrence, Kavanaugh said atheists “have no lesser rights or status” than religious people and can feel “anguish and outrage” listening to a government-sponsored prayer. And he said principles about government recognition of God in the public square, sometimes called “ceremonial deism,” do not always translate “to the public school setting where young students face inherent coercion.”

Kavanaugh’s record suggests he is supportive of school choice that includes religious schools. He was once the co-chair of the School Choice Practice Group of the Federalist Society, the organization of conservative lawyers, and he once worked on school choice litigation in Florida.

A version of this article appeared in the July 18, 2018 edition of Education Week as Pick for U.S. Supreme Court Has Light Record of Education Rulings


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