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Federal Flash: Examining Supreme Court Nominee Brett Kavanaugh’s Record on Education

This week’s Federal Flash covers Supreme Court nominee Brett Kavanaugh’s record on education, congressional action on border separation, action by President Trump that could jeopardize diversity in schools, and a quick update on ESSA.

Trump Administration Action Jeopardizing Diversity

In 2011, the Obama administration issued guidance to school districts on how they could use race to achieve diversity and reduce racial isolation in elementary and secondary schools. For example, the Obama guidance suggested that school districts consider placing specialized academic programs such as computer science programs in low-performing schools if doing so would help to achieve racial diversity.

Last week, the Trump administration rescinded this and six other related policy documents. In a letter issued by the Departments of Justice and Education, the Trump administration argues that the Obama guidance pursued “policy preferences and positions beyond the requirements of the Constitution.”

Supreme Court Nominee Brett Kavanaugh’s Record on Education

President Trump nominated D.C. Circuit Judge Brett Kavanaugh to the Supreme Court. Retiring Justice Anthony Kennedy has been the “swing” vote on many important social, political, and economic issues. Kavanaugh has built a staunchly conservative record and played a large role in drafting the Starr Report, which laid out the case to impeach President Bill Clinton. Not surprisingly, Congressional Republicans and their supporters have widely praised his nomination. Democrats and civil rights groups have mostly lined up in opposition.

While much of the discussion about Judge Kavanaugh has centered on his views around health care and women’s issues, as well as his political career, Kavanaugh has also taken positions on some contentious education issues – many of which are likely to come before our nation’s highest Court in the years ahead.

He wrote an amicus brief supporting prayer in schools. Another brief opposed race-based affirmative action in college admissions. Kavanaugh has also worked for organizations and on cases supporting expanded school choice.

Congressional Action on Border Separation

On Wednesday, the House Appropriations Committee passed its bill to fund the departments of education, labor, and health and human services, or HHS. Because HHS is responsible for the children separated from their parents along the border, the debate on this funding bill was largely focused on immigration policy. Eighteen amendments were adopted, including a bipartisan proposal from Representative Rosa DeLauro allocating $10 million to fund mental health services for children separated from their families at the border.

Other amendments were more partisan – most notably, an amendment from Subcommittee Chairman Tom Cole of Oklahoma would overturn the court decision that only allows children in families seeking asylum at the border to be held for 20 days. If this amendment were enacted, children could be held with their families indefinitely. In committee, Cole’s amendment passed on a party-line vote, but it certainly faces an uphill battle as the House and more moderate Senate must agree on a final bill to send the President’s desk.

Because this policy is a part of the legislation that funds the Department of Education, the immigration debate is likely to delay the final funding decisions in Congress for education programs, potentially until after the congressional elections this fall.

One Final State Waiting For ESSA Plan Approval

And before we sign-off, some quick news on the implementation of the Every Student Succeeds Act. Last week, Secretary of Education Betsy DeVos approved the state plan for Oklahoma and this week she approved Utah and California. Just one state is still working through the process – Florida.

This blog post represents a slightly edited transcript of the July 13 episode of Federal Flash, the Alliance for Excellent Education’s five-minute (or less!) video series on important developments in education policy in Washington, DC. The video version is embedded below. For an alert when the next episode of Federal Flash is available, email at