This Newsbrief gives our sense of important and timely federal educational news within the following process and 
protest context
To advance educational excellence and equity, we must prioritize the needs of our most vulnerable students and communities. To accomplish this goal, we need clear processes for the development of policy, and we need to take into account opposition to current and proposed policies and practices — protest — as a healthy part of those processes.  

Federal Update

The Education Record of Brett Kavanaugh

September 14, 2018

The Issue

Last week the Senate Judiciary Committee opened a hearing on U.S. Supreme Court nominee Judge Brett Kavanaugh. The hearings were marked by numerous loud protests by spectators in the hearing room. Democrats on the committee voiced strong concerns that a large percentage of Kavanaugh’s writings and work are either being withheld from the committee by the Trump administration or from public consideration by the Committee’s Republican leadership.

If appointed, Kavanaugh is expected to be a conservative vote on the Court. His appointment would maintain the 5-4 conservative majority, though his record suggests that his confirmation would push the court even further to the right.

Who is Brett Kavanaugh?
For the last 12 years, Kavanaugh has been a judge on the D.C. Circuit Court of Appeals (D.C. Circuit), a federal court that sits just below the U.S. Supreme Court in terms of authority. Prior to his confirmation as a judge, Kavanaugh served as a high-ranking member of the George W. Bush administration. Previously, he worked as an attorney for Kenneth Starr, the independent counsel that investigated the Clinton administration.

Notably, Kavanaugh has been a player in several high-profile political controversies over the last two decades, including the 2000 Florida recount, the drafting of the Starr Report, and, allegedly, the Bush administration’s decision to torture individuals detained as terror suspects.

Unresolved and controversial allegations persist that he committed perjury during his D.C. Circuit confirmation hearings and that he committed perjury again last week during his most recent hearing.

Why is Kavanaugh’s time on the D.C. Circuit significant?
Three of the eight current justices on the U.S. Supreme Court served on the D.C. Circuit prior to their appointment to the Court. The D.C. Circuit has jurisdiction over the decisions and rulemaking of federal government agencies, like the United States Department of Education.

During his time on the D.C. Circuit, Judge Kavanaugh has consistently ruled in favor of limiting the power of these agencies.

What is Kavanaugh’s legal record on K-12 education issues?
Judge Kavanaugh has written on at least the following education issues:

  • School prayer: Prior to his appointment to the D.C. Circuit, he wrote a legal brief to the U.S. Supreme Court on behalf of two U.S. Congressmen from Oklahoma. His brief asserted that it was constitutional for a high school to use its public address system for student prayers at school football games. The Supreme Court ultimately disagreed and declared the practice unconstitutional.
  • School choice: During a hearing for his appointment to the D.C. Circuit, Kavanaugh said he had previously served as co-chairman of a “school choice practice group” within a nationally prominent conservative organization, and that he had worked on school choice litigation in Florida. He said in a subsequent television interview that he believed that the U.S. Supreme Court would eventually rule that school vouchers are constitutional.
  • Affirmative action: Kavanaugh has been an outspoken opponent of affirmative action policies for years. Prior to his confirmation to the D.C. Circuit, he wrote a legal brief to the U.S. Supreme Court on behalf of an anti-race-based affirmative action group. His disagreement with affirmative action policies is also evident in documents from his tenure as a member of the Bush administration that have been released as part of his confirmation process.


The Process

The Committee is expected to vote very soon to advance Kavanaugh’s nomination to the full Senate. If a simple majority of the full Senate — 51 senators — votes in favor of his candidacy, he will gain a lifetime appointment to the U.S. Supreme Court. If his candidacy is approved within the next couple of weeks, Kavanaugh will join the U.S. Supreme Court in time to hear and rule on the entirety of the Court’s 2018-19 session.


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