“If confirmed to the Supreme Court, Brett Kavanaugh will advance Betsy DeVos’s agenda of privatizing our public schools and weakening educators’ ability to stand up for their students.”—Alice O’Brien, NEA General Counsel
Who Is Brett Kavanaugh?
The next Supreme Court justice must not be beholden to partisan or corporate interests. But nominee Brett Kavanaugh, whose confirmation hearing begins September 4, is a Washington insider who has spent his entire life in Washington, DC, and has been tied to anti-public education and anti-labor groups for decades. If appointed, he will advance an agenda that favors the wealthy and powerful over everyday Americans.
Courtesy Federalist Society
Kavanaugh demonstrates an early commitment to vouchers by becoming co-chair of the Federalist Society’s subcommittee on School Choice. During this time, one subcommittee publication advocates “replacing the government’s education monopoly with a universal government-funded voucher system.”
Kavanaugh defends then-Governor Jeb Bush in a constitutional challenge against Florida’s voucher system; the defensive lawsuit was likely funded by groups linked to Betsy DeVos. That voucher program was eventually struck down by the Florida Supreme Court because it unconstitutionally diverted public funds to private schools.
As assistant and staff secretary to President George W. Bush, Kavanaugh helps plan Bush’s State of the Union address, in which Bush lauded “making sure [parents] have better options when schools are not performing”—a thinly veiled nod to vouchers. Three days later, on January 23, Bush signed into law the first ever federal school voucher legislation, the D.C. Opportunity Scholarship Program. White House records that would demonstrate the extent of Kavanaugh’s involvement in the passage of the voucher scheme are being blocked from release by Kavanaugh allies. Recent studies show that D.C. voucher recipients under the program have performed worse than their public school counterparts.
Kavanaugh issues a decision that impacts taxpayers’ ability to challenge voucher programs as a violation of the U.S. Constitution.
A Champion for Corporations and the Powerful
Kavanaugh has consistently taken the side of corporations and employers over unions and workers and applies different legal rules depending on the outcome he seeks. He has disregarded the deferential standard of review for National Labor Relations Board decisions when the Board upholds workers’ rights, but hides behind the standard when the Board’s decisions are unfavorable to workers.
Kavanaugh sides with a meat producer accused of serious employment, labor, and health and safety law violations by contending that the producer’s undocumented employees had no legal protections under the National Labor Relations Act.
Kavanaugh sides with Trump Plaza Hotel and Casino, which tried to prevent its workers from unionizing.
Kavanaugh sides with SeaWorld in a worker-safety case after a SeaWorld trainer died from an attack by a whale that had killed a trainer before.
Kavanaugh sides with Verizon in a matter dealing with its union members’ rights to display pro-union signs in cars on its property.
Not a Fair-Minded Constitutionalist
Before being nominated, Kavanaugh was vetted and approved by The Heritage Foundation—a corporate-funded organization that is a major supporter of Betsy DeVos’s agenda and seeks to weaken workers’ rights, eliminate civil rights protections, and push a complete voucher system that would divert taxpayers’ dollars away from public schools to fund private ones.
Kavanaugh becomes a member of the Board of Directors of the Washington Jesuit Academy, a school that accepted vouchers from the D.C. voucher program. Kavanaugh has indicated that he “participate[s] in meetings where the Board deals with various issues, including educational decisions.”
The Heritage Foundation plans to spend over $11 million to make sure Kavanaugh gets a seat on the Supreme Court. The group expects a return on this investment, in the form of rulings that favor the wealthy and powerful over American workers, educators, and students.
Kavanaugh on Vouchers
Brett Kavanaugh will be a rubber stamp for Betsy DeVos’s agenda to privatize public schools with vouchers. If appointed to the Supreme Court, we can expect he will rule in favor of a constitutional right for private sectarian schools to take money and resources away from public schools, allowing for a vast expansion of vouchers nationwide. Vouchers are neither successful nor popular. Time and again, when put on the ballot, Americans have rejected voucher plans. Voucher programs often allow fraud and abuse of taxpayer money. And numerous studies have proven that voucher plans do not increase student achievement.
Past Support for Vouchers
Kavanaugh has praised a line of Supreme Court rulings that have allowed public money to be funneled into religious institutions, stating that Chief Justice Rehnquist was successful in “ensuring that religious schools and religious institutions could participate as equals in society and in state benefits programs.” In 2000, Kavanaugh appeared on CNN’s “Burden of Proof” and voiced his support for the theory that the Supreme Court will have to uphold vouchers to religious schools.
As a lawyer in private practice, Brett Kavanaugh co-chaired a legal advocacy “School Choice” subcommittee and represented Governor Jeb Bush in Bush v. Holmes, a state constitutional challenge to Florida’s “Opportunity Scholarship Program.” The Florida Supreme Court eventually struck down the law as an abdication of the government’s duties to provide a high-quality, free public education under the state constitution’s Education Clause.
Michael Q. McShane, the director of national research at EdChoice, a pro-voucher group, has argued in favor of Kavanaugh’s nomination to the Supreme Court, asserting, “It seems that [Kavanaugh] would be a pretty solid vote” to promote vouchers on the Supreme Court.
Making Vouchers for Private, Religious Schools Required Under the U.S. Constitution
Currently, many states have constitutional provisions called “no-aid” or “Blaine” amendments that ban states from sending public money to private or religious institutions. These provisions have limited the ability of many states to adopt expansive voucher programs. Several pro-voucher groups hoping to expand vouchers nationwide—groups funded, founded, or led by the DeVos fortune—are engaged in litigation to strike down no-aid amendments. Their approach is not just a state-by-state battle in each court; soon, they will be asking the Supreme Court to rule that no-aid amendments are entirely unconstitutional. Such a ruling would unleash voucher programs nationwide.
One of the lawsuits alleges that Maine unconstitutionally excludes funding from sectarian schools. Another lawsuit was filed in Michigan (the birthplace of Betsy DeVos’s failed voucher agenda) to strike down the state’s no-aid amendment, a constitutional provision widely viewed as the strongest prohibition against public funding of private schools in the country. In Montana, the Department of Justice recently filed an amicus brief in the state’s highest court on behalf of students attending private religious schools, arguing that the state’s refusal to use public funds in those schools violates the U.S. Constitution.
Kavanaugh on Protecting Students
Vouchers are especially concerning for students with disabilities because most programs require parents to waive their rights under the Individuals with Disabilities in Education Act (“IDEA”), which parents unknowingly do in order to accept tuition vouchers. The IDEA is a federal civil rights law that protects the right of students with disabilities to an equitable education. Kavanaugh’s advocacy for vouchers combined with his record on IDEA suggests that he will not uphold the civil rights of students with disabilities in voucher programs.
Dismissive of Students’ Rights Under the IDEA
In Hester v. DC, Kavanaugh refused to uphold the standards in the Individuals with Disabilities Education Act. The district court ordered Washington, D.C., to provide compensatory education to a student with a disability who had been incarcerated in a Maryland facility. When the Maryland facility blocked access to the city’s education provider for these services, the district court held the city to its obligations, but Kavanaugh overturned the decision. Testimony at the trial revealed that the student received little educational benefit while at the Maryland facility.
Curbing Students’ Civil Rights
Expanding vouchers could spell chaos for the families of students with disabilities. New York City, for instance, decided to give students with disabilities a voucher for related services (such as occupational therapy and speech therapy) if a student’s current school could not provide those services. A government report found that, because of the voucher program and its burdensome requirements for parents, thousands of students with disabilities were not receiving necessary services under the IDEA. Last year, parents of the affected students in the Bronx filed a class action lawsuit in federal court against New York City’s voucher system. Cases like New York City’s could very well make their way to the Supreme Court.
Kavanaugh on Protecting the Vulnerable
Brett Kavanaugh’s record indicates that he will not rule to vindicate the rights of the most vulnerable in our society. He has shown that he is hostile requirements that insurance companies cover people with pre-existing conditions, protections for LGBTQ Americans including gender identity and expression as a protected class, and affirmative action policies that ensure diversity and equity in representation.
Ruling Against the ACA Individual Mandate and Opposing Affirmitive Action
Seven-Sky v. Holder challenged the constitutionality of the individual mandate provision of the Patient Protection and Affordable Care Act. Heard by the U.S. Court of Appeals for the District of Columbia Circuit in 2011, a panel majority upheld the statute against a constitutional challenge. Judge Kavanaugh dissented, arguing that the mandate could not be construed as anything but a tax—a position that indicates he would now find the mandate and attendant protections for pre-existing conditions unconstitutional since the 2017 tax cut eliminated all revenue generated by the mandate’s penalty.
In his dissent, Kavanaugh claimed that a future president “might not enforce the individual mandate provision if the president concludes that enforcing it would be unconstitutional” because “[u]nder the Constitution, the president may decline to enforce a statute that regulates private individuals when the president deems the statute unconstitutional, even if a court has held or would hold the statute constitutional.”
In Rice v. Cayetano, as an attorney, Kavanaugh co-wrote an amicus brief on behalf of the Center for Equal Opportunity with Robert Bork, a former Supreme Court nominee whose nomination was withdrawn for stating (among other incendiary views) that Brown v. Board of Education was the “most controversial” Supreme Court decision. The Center for Equal Opportunity opposes all race-conscious affirmative action. The brief argued that laws seeking to vindicate the rights of historically disadvantaged groups, such as Native Hawai’ians, are unconstitutional.
Eliminating Health Care for Millions
Republican state attorneys general continue to challenge the constitutionality of the Affordable Care Act. They argue that since the 2017 tax cut eliminated the tax penalty for failing to have health insurance, the ACA and all of its protections for patient care and coverage are no longer constitutional. That lawsuit alone would be cause for concern. But in June 2018, the Department of Justice made the unprecedented decision not to defend the ACA and instead argued that the law’s ban on charging more or refusing coverage for people with pre-existing conditions was also unconstitutional. The Department of Justice’s involvement in the case spells its certain future before the Supreme Court. Up to 27 million non-elderly Americans have pre-existing conditions, making them vulnerable to losing their health care coverage if the ACA is struck down.
Kavanaugh on Workers' Rights
Brett Kavanaugh would try to dismantle unions and workers’ rights. Like Betsy DeVos, he has a long history of supporting the interests of billionaires and corporations instead of everyday Americans.
Overreaching to Eliminate Workers’ Rights
In American Federation of Government Employees, AFL-CIO v. Gates, Kavanaugh reversed the district court’s grant of summary judgment in favor of unions for civilian employees of the Department of Defense and held that a statute authorizing the Secretary of Defense to create a new personnel system empowered him to suspend collective bargaining altogether—a position with which even the Secretary disagreed. As the dissenting opinion in this case points out, Kavanaugh’s interpretation of the statute disregarded a provision that expressly required any new system to ensure that employees may organize in labor organizations of their choosing and bargain collectively.
In Miller v. Clinton, Kavanaugh argued that the court should rule in favor of an employer’s discriminatory practices. Here, the State Department admitted to firing an employee based on age. Kavanaugh dissented with the majority ruling, arguing that the State Department could impose a mandatory retirement age, effectively eliminating anti-discrimination protections for a group of employees. According to the majority opinion, Kavanaugh’s position would free the State Department from “any statutory bar against terminating an employee like Miller solely on account of his disability or race or religion or sex.”
More Anti-Labor Rulings
Days after the Supreme Court’s ruling in Janus v. AFSCME, which limited workers’ freedom to join strong unions, special interest groups mobilized to take the Janus decision even further. Well-funded by corporations and billionaires, the groups have filed a litany of lawsuits across the country to challenge collective bargaining and unions’ exclusive representation of public sector workers. Groups have filed these cases in an explicit attempt to quickly advance to the Supreme Court.
One lawsuit filed in federal court in Ohio against a local education association and board of education argues that collective bargaining and exclusive representation violate the First Amendment of the U.S. Constitution. Another in Minnesota makes nearly identical claims against a university faculty union. A complaint against NEA-Alaska goes so far as to claim that the union’s representation in collective bargaining, which fought for better wages and working conditions for its members, was “unconstitutional behavior.”
Kavanaugh’s record shows that he will continue to support the attack on the rights of working families most recently felt in the Janus Supreme Court ruling. Appointing Kavanaugh to the Court would tip the balance, making it even more anti-labor and more difficult for educators to advocate for better wages, working conditions, and resources for their students.