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.


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


This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
School & District Management Webinar
How Schools Can Implement Safe In-Person Learning
In order for in-person schooling to resume, it will be necessary to instill a sense of confidence that it is safe to return. BD is hosting a virtual panel discussing the benefits of asymptomatic screening
Content provided by BD
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Student Well-Being Webinar
How Districts Are Centering Relationships and Systemic SEL for Back to School 21-22
As educators and leaders consider how SEL fits into their reopening and back-to-school plans, it must go beyond an SEL curriculum. SEL is part of who we are as educators and students, as well as
Content provided by Panorama Education
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Student Achievement Webinar
The Fall K-3 Classroom: What the data imply about composition, challenges and opportunities
The data tracking learning loss among the nation’s schoolchildren confirms that things are bad and getting worse. The data also tells another story — one with serious implications for the hoped for learning recovery initiatives
Content provided by Campaign for Grade-Level Reading

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts How a Cheerleader's Snapchat Profanity Could Shape the Limits of Students' Free Speech
Brandi Levy's social media post is the basis for a case before the U.S. Supreme Court on whether schools may punish off-campus speech.
9 min read
Image of Brandi Levy.
Brandi Levy, now an 18-year-old college freshman, was a cheerleader at Mahanoy Area High School in Pennsylvania when she made profane comments on Snapchat that are now at the center of a U.S. Supreme Court case on student speech rights.
Danna Singer/Provided by the American Civil Liberties Union
Law & Courts Student School Board Members Flex Their Civic Muscle in Supreme Court Free-Speech Case
Current and former student school board members add their growing voices to a potentially precedent-setting U.S. Supreme Court case.
7 min read
Image of the Supreme Court.
Law & Courts Justice Department Memo Could Stoke State-Federal Fights Over Transgender Students' Rights
Title IX prohibits discrimination on the basis of sexual orientation and gender identity in schools, a Justice Department memo says.
3 min read
Stephanie Marty demonstrates against a proposed ban on transgender girls and women from female sports leagues outside the South Dakota governor's mansion in Pierre, S.D. on March 11, 2021.
Stephanie Marty demonstrates against a proposed ban on allowing transgender girls and women to play in female sports leagues outside the South Dakota governor's mansion in Pierre, S.D.
Stephen Groves/AP
Law & Courts Diverse Array of Groups Back Student in Supreme Court Case on Off-Campus Speech
John and Mary Beth Tinker, central to the landmark speech case that bears their name, argue that even offensive speech merits protection.
5 min read
In this photo taken Tuesday, Aug. 27, 2013, Mary Beth Tinker, 61, shows an old photograph of her with her brother John Tinker to the Associated Press during an interview in Washington. Tinker was just 13 when she spoke out against the Vietnam War by wearing a black armband to her Iowa school in 1965. When the school suspended her, she took her free speech case all the way to the U.S. Supreme Court and won. Her message: Students should take action on issues important to them. "It's better for our whole society when kids have a voice," she says.
In this 2013 photo, Mary Beth Tinker shows a 1968 Associated Press photograph of her with her brother John Tinker displaying the armbands they had worn in school to protest the Vietnam War. (The peace symbols were added after the school protest). The Tinkers have filed a brief in the U.S. Supreme Court supporting a Pennsylvania student who was disciplined for an offensive message on Snapchat.
Manuel Balce Ceneta/AP