Supreme Court nominee Brett Kavanaugh was anything but clear during his confirmation hearing when addressing questions about whether he would vote to strike down the 1973 Roe v. Wade decision that legalized abortion nationwide and set a new standard for the right to privacy. But he has been clear on this: support for key principles that Education Secretary Betsy DeVos holds dear about America's schools.
It is not certain that Kavanaugh will be confirmed to the court but is highly likely. While justices sometimes cast surprising votes, many public-education advocates say Kavanaugh has said and written enough to show that he holds the same view on education as DeVos and would be a rubber stamp for those ideas should they come before the court.
The issue that justices are most likely to encounter involves the separation of church and state: Should public funds pay for private and religious education? Numerous states over the past several years have created or expanded programs — vouchers, tax credits, education savings accounts — that allow public money to be used for private and religious school education.
This is a central front in the education wars, with many supporters of school choice pushing for an end to state restrictions on the use of public money for private purposes. Opponents say such use violates the Establishment Clause of the U.S. Constitution and that some religious and private schools receiving public funds discriminate against LGBTQ students and those with disabilities. And those opponents say the diversion of public money harms traditional public schools, which educate the vast majority of children.
For decades, DeVos has advocated for public funding of private schools and was a pivotal figure in the movement to eliminate legal barriers to it before Trump tapped her as education secretary. She was quoted in 2015 saying that traditional public schools are a “dead end” and has made clear that as education secretary, her top priority is to expand alternatives to public school districts.
Several moves by the Supreme Court last year suggested it is moving toward striking down constitutional restraints on the use of public money for private and religious schools — restraints that exist in most states. One court decision said Missouri may not deny a playground resurfacing grant to a church. DeVos called the decision a first step toward ending state bans on using public money to pay tuition at parochial schools.
Opponents saw the decision as a direct hit on the doctrine of separation of church and state, and as a signal that the Supreme Court seemed to be on its way to ruling against what is known as the Blaine amendments. They are provisions in the constitutions of Missouri and several dozen other states that forbid the state government to use public funds for “any church, sector or denomination of religion.”
Public-education advocates are concerned that a case challenging the Blaine amendments will come before the court sooner rather than later, and that Kavanaugh would be the deciding vote to allow public money to be used for private and religious schools.
So what has Kavanaugh said or written about education issues?
Both as a private attorney and as a judge on the U.S. Court of Appeals for the D.C. Circuit, Kavanaugh has showed support for religious interests.
Last year, he gave a speech in which he all but said he believes public money should be used for religious schools. He called William Rehnquist, the late chief justice, his “first judicial hero” and praised Rehnquist for “changing the jurisprudence and convincing” other Supreme Court justices that “the [church-state] wall metaphor was wrong as a matter of law and history."
When Jeb Bush was governor of Florida, Kavanaugh defended Bush's effort to keep a private-school voucher program, although the Florida Supreme Court ruled it unconstitutional in 2006.
A new analysis of Kavanaugh's record, issued by the National Education Association, the largest teachers union in the United States, found that as a judge, political staffer and private attorney he showed unwavering support for programs that use public money for religious education. NEA President Lily Eskelsen García issued a statement saying:
“What the public is learning about Judge Brett Kavanaugh’s two-decade crusade as a voucher activist indicates he is a rubber stamp for the Betsy DeVos privatization agenda. If confirmed, his appointment to the U.S. Supreme Court would present a profound threat to our students, public education, and our communities."
On a related subject, in 1999, Kavanaugh, as a private attorney, wrote an amicus brief supporting a Texas public school district that allowed prayers at school events. The U.S. Supreme Court ruled against the practice in 2000, saying it violated church-state separation.
DeVos and the Trump administration recently indicated opposition to the use of race-based affirmative action in college admissions by rescinding seven documents issued by the Obama administration from 2011 to 2016 providing guidance on how higher-education institutions could use race in admissions.
In a recently leaked document from 2001, Kavanaugh said in an email to another member of President George W. Bush's administration that affirmative action is a “naked racial set-aside."
And the NAACP Legal Defense Fund said this in a report on Kavanaugh's record:
Judge Kavanaugh’s work as a private lawyer for an anti-affirmative-action organization in a case challenging Hawaii’s right to remedy past discrimination against indigenous Hawaiians reflects a strong hostility to considering race even to remedy entrenched racial discrimination.
Meanwhile, DeVos's Education Department has been removing Obama-era protections aimed at helping student loan borrowers from being bilked by predatory for-profit colleges. A key agency involved in protecting student borrowers, the Consumer Financial Protection Bureau, has been criticized by Kavanaugh, who wrote that its current structure is untenable.
And those who want to see tighter gun restrictions by the federal government may not take comfort in the National Rifle Association's support of Kavanaugh's nomination, saying he was a strong supporter of the Second Amendment. As a judge on the appeals court, he dissented from an opinion in 2011 that upheld the District of Columbia's ban on rifles and high-capacity magazines.
DeVos is head of a Trump-appointed commission on school security in schools — but gun control is not part of the discussions.
There's more: Kavanaugh has several times ruled in favor of employers over worker, and many educators, such as Oklahoma City high school social studies teacher Melissa Smith, fear he would be hostile to teachers unions. She testified at his confirmation hearing, saying in part (and you can see her entire testimony below):
I have seen firsthand how the collective power of unions allows individuals to band together to bargain for resources for students and teachers. As we saw in the Janus v. AFSCME decision, the Supreme Court has enormous power to limit the ability of millions of hard-working Americans to come together in strong unions to bargain for fair wages, equal pay for women and people of color, decent benefits and a voice on the job. Judge Kavanaugh has a strong history of siding with big business over the needs, rights and safety of individual employees. His record shows that he sides with employers who do not adhere to their collective bargaining agreement, does not believe in union representation in employee meetings, and in one decision, would allow the employer to “abolish collective bargaining all together.”
So if Kavanaugh is confirmed, how would he side in education issues? Most likely with Betsy DeVos.
(Update: Adding NEA report on Kavanaugh record)
Here is Smith's full testimony:
Testimony of Melissa Smith
Social studies teacher, U.S. Grant Public High School, Oklahoma City
U.S. Senate Committee on the Judiciary
U.S. Supreme Court Nomination Hearing of Judge Brett Kavanaugh
September 7, 2018
Mr. Chairman, Ranking Member Feinstein, and members of the Judiciary Committee, thank you for giving me the opportunity to speak on behalf of union members, public school teachers and our students. My name is Melissa Smith, and I am a proud union member and public school teacher at U.S. Grant High School on the southwest side of Oklahoma City.
I am also the proud daughter of a lifelong public servant. My father, LeRoy Burks, was a police officer for 41 years, 25 of which were in my hometown of Enid, Okla. My father instilled in me from a very early age the knowledge that I have a voice, and he taught me how to use it. He made sure that I not only knew my rights, but that I knew how to exercise them. I often wondered how people who didn’t have a cop for a dad knew all of these things.
Because of my father’s inspiration, I received my bachelor’s degree in criminal justice. After college, I became a juvenile probation and parole officer and quickly realized that most teenagers have no idea that they even have rights. This, I realized, was an issue that I could do something about, so I became a high school social studies teacher.
My criminal justice classes allow me the opportunity to open my students’ eyes to the concepts of equality, justice and fairness—concepts that I see them beginning to understand in their own lives and in the world around them.
I teach them that under the U.S. Constitution, they, and all Americans, have human rights and constitutional rights that maybe no one has ever explained but that are enshrined in centuries of history and struggle, and based on real democratic principles for which people have fought and died. I teach them the impact of the law, the impact of our government, and their roles and responsibilities within the government so that they can be active and engaged citizens in our democracy. It is a humbling and awesome responsibility.
Today, I am honored to be able to show my students exactly what it means to use your voice and participate in our government at the highest level. I am proud to sit here in my capacity as a public school teacher, as a union member and as the first in my family to graduate from college.
And I am proud to testify about why public schools matter—for our kids, for our communities and for our economy, now more than ever.
Since you can’t be in school with us every day, allow me to share some of our experiences with you as you consider your vote to confirm Judge Kavanaugh to a lifetime appointment to the U.S. Supreme Court.
Oklahoma City Public Schools is the largest district in the state, serving about 46,000 students. Almost 90 percent of our families are considered to be economically disadvantaged, 35 percent are English language learners, and 15 percent are disabled or have special needs. I am a proud U.S. Grant High School General. We have the best administrators, the most dedicated teachers and absolutely amazing students.
But because of a continued decrease in funding from the Oklahoma Legislature, our district has had to cut almost $40 million from its budget in the last two years. Our fine arts budget was slashed by 50 percent, our library media budget was completely eliminated, and district officials were forced to end the school year days early. Our school building was built for 1,200 people.
We currently have almost 2,000 students and 200 staff members. Our classrooms are extremely overcrowded, with 40 students in some classes. Many rooms don’t even have enough desks for our students to sit in, and some teachers don’t even have classrooms at all—they have their belongings, textbooks and supplies on carts, and they push them from classroom to classroom, hour to hour. They’re called traveling teachers. I have been a traveling teacher; it is almost impossible to be an effective educator like this.
I think the cut that hurt the most was the loss of our two maintenance workers, Gerald and Joe, whose positions were eliminated when our district was forced to cut the first $30 million in 2017.
Gerald and Joe kept our building running. Without them, nothing seems to work. We regularly have days when we don’t have air conditioning. Just last Monday, it was almost 90 degrees in my classroom by the end of the day. The next morning, it was 84 degrees when I arrived at school at 6 a.m.
I am telling you about our funding crisis in Oklahoma for two reasons. First, because Judge Kavanaugh’s stated position on private school vouchers would exacerbate the situation in Oklahoma City. Research shows that vouchers do nothing to help student achievement but do everything to undermine the public schools that 90 percent of children in this nation attend.
Despite the incredible need for resources in a public school like mine, Judge Kavanaugh has, for over 20 years, taken public positions questioning the very foundation of public education and supporting private school voucher programs that use public school funding with little oversight and accountability. Siphoning more funding away from public education will destroy our public schools.
The second reason I am telling you about our funding crisis is that I have seen firsthand how the collective power of unions allows individuals to band together to bargain for resources for students and teachers. As we saw in the Janus v. AFSCME decision, the Supreme Court has enormous power to limit the ability of millions of hard-working Americans to come together in strong unions to bargain for fair wages, equal pay for women and people of color, decent benefits and a voice on the job.
Judge Kavanaugh has a strong history of siding with big business over the needs, rights and safety of individual employees. His record shows that he sides with employers who do not adhere to their collective bargaining agreement, does not believe in union representation in employee meetings, and in one decision, would allow the employer to “abolish collective bargaining all together.”
I can tell you that through my union, I have learned the power of collective voice. I can advocate for my own working conditions, which are the same as my students’ learning conditions. Unions give voice and agency to people who can’t find it otherwise—they make it possible for us to accomplish together what we could not do on our own.
Five months ago, Oklahoma City Public Schools teachers walked out of our classrooms. Our state Legislature passed a $6,000 pay raise in an attempt to stop the walkout, but we were fighting for so much more than just a raise. We were fighting for our students and for their needs, which often go well beyond what you would expect a teacher or a school to take care of. We worried not just about union rights, but about our students’ needs, which are many.
Teachers and staff members across this country take money out of their own pockets to buy classroom supplies, wash students’ school uniforms so that they have clean clothes, and offer students without enough food a bag of pantry items to take home on weekends. Allow me to share some of my—and my students’—specific experiences.
I have students, and fellow staff members, who visit the mobile dental unit—basically a dentist office on wheels—that is stationed in front of our parking lot. Sometimes this dental van is the only dental care that our teachers and students can get. I have physically picked up a teenager off the floor and carried her to the counselor’s office. She was sobbing in the hallway outside my classroom, saying she didn’t want to live anymore. Thank goodness the budget allowed us to have a counselor in school that day. I’ve also been called by one of my students on a Saturday night saying that she thought a friend of hers was going to commit suicide. I spent all night on the phone with her, the police, my assistant principal and the other teen’s parents. Neither girl committed suicide.
Just last week, the teacher in the classroom next to mine wrote a reference letter for a student and his family to take with them to their hearing to determine whether they could remain in this country. She stressed about it for days because she needed it to be perfect. Her student has never known anything but his life in Oklahoma, and he is terrified of being sent to a place that is not home, regardless of what anyone tells him.
I have paid a student’s senior dues because his guardian moved to another state and left him to support himself in August of his senior year, and I didn’t think he should have to choose between paying for rent and food and getting to attend his senior activities. That young man was active in Student Council, an athlete, and employed more than full time. He is currently at a university on a full athletic scholarship.
I have sat next to a student while she told her grandmother that she was pregnant, and we all worried about her future. I have seen the terror on a transgender student’s face when he shared that he identifies as male. And then that terror turn to sheer joy when I, as a trusted adult, accepted him for who he is.
I have sat in a classroom on lockdown because a student brought a loaded .380 gun into the school building. I struggle to put into words what I felt that day. I was on my planning period so I didn’t have any students in my classroom—they were spread all over the building with the other almost 2,000 kids that we have. Nobody should have to experience the terror of guns in their school building.
Yet Judge Kavanaugh could stand as a barrier to commonsense gun safety reforms that would keep our schools and communities safe. Judge Kavanaugh’s record indicates he is not likely to take public safety into consideration when deciding if a gun violence prevention law is constitutional. This terrifies me. Schools should be safe sanctuaries for teaching and learning; our laws should make it harder to bring guns into schools, not easier.
I arrived to school on the morning after the 2016 presidential election filled with concern for our school community. The majority of our students are Hispanic, some of whom are undocumented or have undocumented family members. The U.S. Grant family rallied around all of our students more than usual on that day. We dried the tears, calmed the anger and tried our best to reassure our kids. Our principal came over the intercom and reminded all of us that ICE officials are not welcome on our campus. He even stated that anyone and everyone who came through the front door would have to roll over him to get to our kids.
We don’t ask if they or their parents are undocumented; that’s not our purpose—and, so far, the U.S. Supreme Court agrees. Our purpose is to care for our students and teach them. The fear hasn’t completely gone away since that day, but it has subsided a bit. Our kids know that we have their backs.
Again, why am I sharing these experiences with you? Because I am kept up at night worrying about my students and who will look out for them. I worry that our government is too far removed from the people it serves, and that the consequences of that gap are far more dangerous than we realize. If confirmed, Judge Kavanaugh’s decisions will impact not just teachers and students in schools now, but the lives of my students when they become adults and have their own children, and for generations to come.
Judge Kavanaugh has sided with the powerful and their institutions, rather than with the voiceless and the vulnerable—be they immigrants, individuals with disabilities, or workers—who need protections from the courts. I teach my students about justice and equality, but I worry that we live in a country where these rules no longer apply.
The rulings of the U.S. Supreme Court affect us all. Courts have ruled on school integration plans, access to services for students with disabilities, healthcare, affirmative action in higher education, and the constitutionality of private school vouchers. We can expect all of these to be in play over the course of any nominee’s lifetime appointment to the court, and Judge Kavanaugh’s record should be examined.
I’ve shared the experiences of my students, fellow staff members and their families to show that there is a real impact of Judge Kavanaugh’s jurisprudence on America’s future. This committee is in a unique position to listen to real people, working people, young people. We are here. We are telling you what we need. Every American I know wants a Supreme Court that understands our struggles, and gives everyone—individuals like myself and my students—a fair shot in court.
I’m in awe of the young people on the panel who are so eloquently representing their generation. They are so incredible not because of the adults in this country, but in spite of the adults in this country. They rise above the problems and inadequacies that we create—the educational system’s problems, the unhealthy environment, the ridiculously expensive healthcare system, the never-ending mass shootings, and the negativity of our current political climate. They rise above the problems that might not affect you, or me, or Judge Kavanaugh, but affect them every single day.
I’d like to end my statement the same way I end every Friday at school with my students: Be the example, have a good weekend and make good choices.