What the Kavanaugh Nomination Means for School Choice

Supreme Court nominee Brett Kavanaugh with Mitch McConnell, Mike Pence, and Joe Kyl at the Capitol in July ( source )

Supreme Court nominee Brett Kavanaugh with Mitch McConnell, Mike Pence, and Joe Kyl at the Capitol in July (source)


While Brett Kavanaugh’s now less-certain Supreme Court confirmation has thoroughly shaken the Democratic Party, the judge assuming a seat at the bench will also have bipartisan implications in an area not yet covered as widely as his stances on other issues: education policy.

More widely known for his controversial stances on women’s reproductive rights, health care, and executive power, Kavanaugh’s red-hot streak of traditional conservatism unsurprisingly aligns him with school-choice advocates and affirmative action critics as well. While policy issues like healthcare and executive power tend to divide people along party lines, education seems to be a more non-partisan issue. Most would agree, after all, that high-quality schools with representative student bodies are best for young people. Both sides of the political aisle may agree on the role education plays in American society, but they differ on how these goals should be realized. And because American public policy is historically informed by Supreme Court rulings, Kavanaugh's nomination might mean more for education than many realize.

Given the opportunity to shape education policy from the bench, Kavanaugh will opt to support the school-choice model popularized, albeit infamously, by Betsy Devos. With one addendum — a sprinkling of desire to dismantle the barrier between church and state.

Kavanaugh, Gorsuch, and fellow clerks with Justice Anthony Kennedy in 1993 ( source )

Kavanaugh, Gorsuch, and fellow clerks with Justice Anthony Kennedy in 1993 (source)

In order to better understand the lens through which experts analyze Kavanaugh's education policy stance, one must examine his own educational upbringing. Like many of his soon-to-be peers on the bench, Kavanaugh attended a private high school with an annual tuition maxing out at $60,000 per year. The judge used to spend lunch period with the president’s previous nominee, Justice Neil Gorsuch, at Georgetown Preparatory School, a predominately White, religious institution outside of Washington, D.C. Therefore, it should not be surprising that Kavanaugh is a little out of touch when it comes to evaluating the “typical” education experience of most Americans. Put simply, unless your family is one that can crank out $240,000 as an alternative to public high school, Kavanaugh is not a representative justice.

Kavanaugh’s views on school choice are not surprising, but their implications for North Carolinians might be. His stance on school choice, taken in at face value, is one with which many education professionals would agree. The idea of a family having the freedom to select whichever school is best for their student sounds very appealing on paper. In practice, however, school choice has been shown to exacerbate racial segregation in our schools.

According to school choice researcher and Charlotte-area teacher Justin Parmenter, over 100,000 students in North Carolina attend charter schools. These charter schools are overseen by a board of eight people and are typically comprised of either over 80% white students or 80% students of color. Parmenter notes that these schools are not required to support economically disadvantaged students by providing transportation or free or reduced-price lunches. Charter schools with predominantly low-income families also receive a higher percentage of D and F ratings than similarly situated public schools. A higher percentage of charter school students receive As and Bs than their public school counterparts. Those populated with White, wealthy students populate these high-scoring schools.

In effect, this uptick of charter schools in NC has further polarized wealthy and low-income students in terms of school quality. It has also amplified school segregation as White parents petition to open up elite charter schools, siphoning funding away from more diverse, though underserved, public schools.

There are currently four cases concerning charter school funding nationwide that are poised to reach the Supreme Court docket. Brett Kavanaugh's potential confirmation would solidify his role as a prominent figure in the school choice debate and come as a victory for those who support school choice. Unfortunately, it will also hamper efforts for diverse, quality schools in North Carolina.