Education Week - July 18, 2018 - 21

voluntary race-conscious assignment
plans in the Seattle and Jefferson
County, Ky., school districts. But he
wrote a significant concurrence that
made clear he would not go as far as
Chief Justice John G. Roberts Jr.'s
plurality opinion.
"Race may be one component of
[student] diversity, but other demographic factors, plus special talents
and needs, should also be considered,"
Kennedy said in his concurrence in
Parents Involved in Community
Schools v. Seattle School District.

Race-Conscious Admissions
In 2016, Kennedy wrote the opinion for the court upholding a public
university's race-conscious admissions program.
"It remains an enduring challenge
to our nation's education system to
reconcile the pursuit of diversity with
the constitutional promise of equal
treatment and dignity," Kennedy
wrote in Fisher v. University of Texas
at Austin (Fisher II).

In 1999, the court ruled 5-4 in
Davis v. Monroe County Board of
Education that school districts may
be sued under Title IX of the Education Amendments of 1972 in cases involving student-on-student, or peer,
sexual harassment.
Kennedy wrote a dissent that said
the decision "imposes on schools potentially crushing financial liability for
student conduct that is not prohibited
in clear terms by Title IX," the federal
law that bars discrimination based on
sex in federally funded schools.
In Owasso Independent School District v. Falvo, in 2002, Kennedy wrote
the opinion for the court holding that
the Family and Educational Rights
and Privacy Act did not bar the practice of students exchanging papers
and quizzes so they could grade each
other's work. He said he doubted
that Congress had meant to prevent
students from seeing the teacher's
"happy face" or "gold star" on each
other's work.
One of Kennedy's signature areas
of the law involved expanding gay

rights. In 1996, he wrote the opinion for the court in Romer v. Evans
striking down a Colorado ballot measure that barred the state government, cities, and
school districts
from enforcing
laws or policies
protecting gay
people from discrimination.
Kennedy also
SUPREME COURT
wrote important
ASSOCIATE JUSTICE
majority deciANTHONY M.
sions rejecting
KENNEDY
same-sex sodomy
laws, striking
down the federal Defense of Marriage
Act, and declaring a federal constitutional right to same-sex marriage.
Those decisions have been felt in numerous ways in the nation's schools.
On June 27, Kennedy joined the 5-4
majority in Janus v. American Federation of State, County, and Municipal
Employees Council 31, which overruled an earlier decision and held
that public-employee unions, includManuel Balce Ceneta/AP

private conference in favor of upholding the clergy-led prayers. He was
assigned to write the opinion for the
court's 5-4 majority in favor of the
school district. But he struggled to
draft the opinion, leading to a change
of heart-and his vote.
During that same 1991-92 term,
Kennedy wrote his first major opinion on race in education.
In Freeman v. Pitts, the court held
unanimously that federal judges may
relinquish control of desegregation
plans in stages. Five justices went
on to hold that school systems once
segregated by law need not remedy
racial imbalances caused by demographic shifts and other factors not
under their control.
"Racial balance is not to be
achieved for its own sake," Kennedy
wrote for that majority.
In 2007, when the court sharply
limited the use of race in assigning
students to K-12 schools in districts
that were no longer, or never had been,
under court supervision, Kennedy
joined the judgment that invalidated

ing teachers' unions, may not collect
agency fees for collective bargaining
from those workers who decline to
join the union.
One possible activity for Kennedy
in retirement is civic education, in
which he has long been interested.
Four years ago, Kennedy released
a lengthy list of works recommended
for young people called "Understanding Freedom's Heritage: How to Keep
and Defend Liberty."
Besides works by Plato, Cicero,
Shakespeare, the Founding Fathers,
Abraham Lincoln, Mark Twain, Ronald Reagan, and others, Kennedy's list
includes Lou Gehrig's farewell to baseball, Don McLean's song "American
Pie," and specified scenes from such
films as "To Kill a Mockingbird," "A
Few Good Men," and "Legally Blonde."
Also in 2013, at the federal courthouse in Kennedy's hometown of
Sacramento, the Justice Anthony
M. Kennedy Library and Learning
Center opened to serve as the home
for various civics and educational
programs.

Pick for U.S. Supreme Court Has Light Record of Education Rulings
Kavanaugh's mother was
teacher, then lawyer, judge

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.

By Mark Walsh
Washington

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

'No Lesser Rights' for Atheists
Alex Brandon/AP

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 churchstate 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."

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.

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-ofthe-court brief in support of a Texas school

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.

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