If you care about protecting public education and preventing public money from funding private religious schools, then you should be concerned about President Donald Trump’s nomination of Brett Kavanaugh to the U.S. Supreme Court. Kavanaugh’s record indicates that he’s hostile toward church-state separation and would support private school vouchers.
The reality is, vouchers undermine both public education and religious freedom. With 90 percent of American schoolchildren in public schools, public money should only be directed there. Moreover, studies have repeatedly shown vouchers don’t improve student achievement, and they lack accountability. They also funnel public money to private, mostly religious schools that can discriminate and ignore federal civil rights laws.
Nonetheless, Kavanaugh has been a supporter of vouchers and using tax dollars to fund religious activities. As an attorney, he has filed friend-of-the-court briefs supporting public money being used to pay for religious activities in public schools – including school-sponsored prayer. During his 2004 Senate confirmation hearing to become a federal appeals court judge, Kavanaugh said he had served as the co-chairman of the conservative Federalist Society’s “School Choice Practice Group.” And in a speech last year, Kavanaugh praised the late Chief Justice William Rehnquist, both for his criticism of church-state separation and for his legal opinions that paved the way for the Supreme Court’s 2002 Zelman v. Simmons-Harris decision that a state’s private school voucher program did not violate the First Amendment, even though public money was being used to fund private religious education.
Although the Supreme Court has deemed voucher programs permissible under the U.S. Constitution, nearly 40 state constitutions include “no-aid clauses” that explicitly bar public money from funding religious activities. These state provisions uphold the principle that government should not force anyone to pay for religious education and other activities with which they may not agree.
No-aid clauses are under attack like never before after the U.S. Supreme Court’s 2017 decision in Trinity Lutheran Church of Columbia v. Comer that Missouri could not prevent a church from applying for a taxpayer-funded grant to resurface its preschool playground. Although the Supreme Court was careful to apply its opinion only to the narrow set of circumstances in the Trinity Lutheran case, which involved a church using taxpayer money for a nonreligious purpose, voucher proponents are trying to expand the court’s ruling to pave the way for more publicly funded voucher programs and other religious activities.
In the last month, the pro-voucher group Institute for Justice (IJ) filed two federal lawsuits seeking to expand the scope of Trinity Lutheran. The group paired up with the Religious Right legal group First Liberty Institute to challenge Maine’s program of funding vouchers for private secular schools in areas where towns are too small to fund their own public schools. And in Washington state, IJ is targeting the state’s no-aid provision in a battle over funding for college students in secular work-study programs. The lawsuits wrongly argue that the refusal to fund religious schools and organizations discriminates against those organizations. In truth, these provisions protect the religious conscience of the taxpayer.
Kavanugh is all too likely to side with the Institute for Justice in these cases. As an attorney, he was a member of the legal team that represented Jeb Bush, then governor of Florida, and Bush’s private school voucher program that Americans United and allies challenged in court. He argued that the state could fund its private school voucher program despite Florida’s no-aid clause. The Florida Supreme Court in 2006 ruled the voucher program violated the state’s constitution.
In short, Kavanaugh has indicated he has no qualms of violating the freedom of conscience of both the taxpayers, who should not be forced to fund religious education they don’t support, and of public schoolchildren, who should not be confronted with coercive, school-sponsored prayers. On the issue of prayer in school especially, Kavanaugh has a very different view from Justice Anthony Kennedy – indicating Kavanaugh could significantly alter the balance of power on the court for a generation.
“Justice Kennedy was very protective of schoolchildren, and believed that failing to shield them from religious coercion was an attack on their rights,” AU President and CEO Rachel Laser told The New York Times. “Judge Kavanaugh believes that shielding children from religious coercion is an attack on religion.”
This is just one of the many areas in which Kavanaugh has demonstrated he is wrong on church-state separation and wrong for the U.S. Supreme Court. We’ve outlined several other areas of concern – including LGBTQ equality, reproductive justice and the rights of religious minorities and immigrants.
The Senate Judiciary Committee is pushing ahead with Kavanaugh’s confirmation hearings starting on Sept. 4, despite the lack of requested documents about Kavanaugh’s record in the Bush White House and over the objections of Democratic senators who say Trump should not be in the position to appoint someone to a lifetime position on the Supreme Court while a criminal investigation into Trump’s campaign is ongoing.
Now is the time to act! Help us stop Kavanaugh by urging your senators to reject his confirmation. Religious freedom and church-state separation are on the line.
(Photo credit: Screenshot of Brett Kavanaugh from C-SPAN.)