D.C. Circuit Judge Brett Kavanaugh was nominated on July 9, 2018 to the Supreme Court by President Donald Trump. Should he be confirmed, his appointment could have far reaching effects to educational entities across the country. Kavanaugh is a strong proponent of religious liberty and second amendment rights, and has issued a variety of high-profile opinions.
Kavanaugh, a former law clerk to retiring Justice Kennedy, was also an author of the Starr Report, which urged the impeachment of President Bill Clinton. After the 2000 U.S. presidential election, Kavanaugh joined President George W. Bush’s staff, where he led the administration’s effort to identify and confirm judicial nominees. In 2003, he was nominated to the Court of Appeals by President Bush. His confirmation hearings were contentious and stalled for three years before he was finally confirmed in May 2006. Judge Kavanaugh describes his judicial philosophy, saying, “A judge must be independent and must interpret the law, not make the law. A justice must interpret statutes as written and a judge must interpret the Constitution as written informed by history, and tradition, and precedent.”
Judge Kavanaugh has one opinion involving special education. In Hester v. D.C., 505 F.3d 1283 (D.C. Cir. 2007), Judge Kavanaugh wrote the majority opinion overturning a district court’s decision granting summary judgment for a student. The Court of Appeals also directed the district court to grant defendant’s cross-motion for summary judgment. Specifically, an incarcerated special education student sued the city of Washington D.C., where he originally attended public school, alleging that the city failed to provide him free appropriate public education (“FAPE”). While the student was in a Maryland prison, Maryland provided him special education services. In his opinion, Judge Kavanaugh ultimately held that the student, a prisoner of Maryland, was not entitled to D.C.’s special education services.
Judge Kavanaugh has also authored high profile opinions involving gun control and federal grants. In Heller v. D.C., 670 F.3d 1244 (D.C. Cir. 2011), he wrote a dissenting opinion, stating that he believes, under the law, semi-automatic rifles and handguns are constitutionally protected.
In addition, in Camden County Council on Econ. Opportunity v. U.S. Dept. of Health & Human Services, 586 F.3d 992 (D.C. Cir. 2009), Judge Kavanaugh wrote the majority opinion finding that the Department of Health and Human Services could terminate a county’s Head Start grant which provided federal funding for pre-school services to low-income children. In Camden, he determined that because the county failed to correct a safety-related deficiency, the Department could rightfully terminate the grant.
Judge Kavanaugh has an extensive history of supporting religious liberty. In the 1990s, he chaired the Federalist Society’s Religious Liberty practice group and served as pro bono counsel on cases defending religious freedom. While on the bench, he wrote a dissent in Priests for Life v. HHS and concluded that the Affordable Care Act’s contraceptive mandate violated the rights of religious organizations. See Priests for Life v. U.S. Dep’t of Health & Human Servs., 808 F.3d 1, 14 (D.C. Cir. 2015). School voucher advocates believe that Judge Kavanaugh could change legal precedent regarding religious school vouchers given his record on religious liberty. While there are currently no school voucher cases pending before the Supreme Court, relevant cases are moving through the lower federal courts.
Judge Kavanaugh has been making “courtesy visits” in the Senate, offering senators a chance to quiz Judge Kavanaugh on his judicial philosophy, past rulings, and public statements. If confirmed, school districts can expect Judge Kavanaugh to be cautious towards federal education spending and be a strong supporter of the Second Amendment. Husch Blackwell’s Education Team will continue to monitor his confirmation process and his judicial opinions should he be confirmed and take the bench.