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This Week In Education Politics: The Senate Holds Confirmation Hearings on SCOTUS Nominee Brett Kavanaugh, Apprenticeships, ‘Playful Learning’ & More

By Carolyn Phenicie | September 2, 2018

THIS WEEK IN EDUCATION POLITICS publishes most Saturdays. (See previous editions here.) You can get the preview delivered straight to your inbox by signing up for The 74 Newsletter; for rolling updates on federal education policy, follow Carolyn Phenicie on Twitter @cphenicie.

INBOX: ALL EYES ON KAVANAUGH — The Senate Judiciary Committee Tuesday begins confirmation hearings for Brett Kavanaugh, nominated in July by President Donald Trump for an open — and pivotal — swing-vote seat on the Supreme Court.

Kavanaugh, the son of a onetime D.C. public school teacher, has praised efforts to allow public funding of religious institutions. He served for two years as the co-chair of the conservative Federalist Society’s school choice subcommittee before he worked in the George W. Bush White House, he said in a Judiciary Committee questionnaire.

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He’s also served on the board of the Washington Jesuit Academy, an extended-day, extended-year Catholic school for low-income middle school boys in the D.C. area. Most go on to attend the city’s most elite private high schools.

Kavanaugh has worked in ancillary roles on a few key K-12 education cases.

In the Judiciary questionnaire, Kavanaugh listed one, Good News Club v. Milford Central School, as among the 10 “most significant” matters he litigated.

The 2001 case concerned whether a district in New York state could ban religious organizations from using school facilities after hours. Kavanaugh represented Sally Campbell, who had challenged a similar policy in Louisiana, in her “friend of the court” filing. The Supreme Court ruled, 6-3, that the policy was unconstitutional.

In detailing his previous advocacy before the Supreme Court, Kavanaugh also discussed Santa Fe Independent School District v. Doe. That case hinged on whether a school district could permit student-led prayer before football games.

Kavanaugh filed a friend of the court brief on behalf of two congressmen who supported the students who wanted to lead such prayers. The court in its decision said prayers “on school property, at school-sponsored events, over the school’s public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer” violated the First Amendment clause dealing with the separation of church and state.

While in private practice before joining the Bush White House, Kavanaugh also helped then-Florida Gov. Jeb Bush defend the state’s opportunity scholarship program, which allowed students at underperforming public schools to attend higher-performing public or private schools. Kavanaugh helped draft briefs for an appeal to an intermediate court, which ruled that the program did not violate the state’s constitution, though the state’s Supreme Court ultimately ruled the private-school-funding portion unconstitutional. A separate program, funded by donors who get tax breaks for their contributions to scholarship-granting organizations, remains on the books.

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On higher education, advocates believe, based on his past decisions in other race-based cases and writings as a private attorney, that he could be a fifth vote to overturn affirmative action programs, the Washington Post reported. Justice Anthony Kennedy, whom Kavanaugh would replace, wrote the majority opinion in a 2016 case upholding race-conscious admissions at the University of Texas.

The issue was in the news again last week, this time with the Department of Justice filing a brief siding with Asian Americans who say they were discriminated against in their applications to Harvard University by its affirmative action policies.

ICYMI: SUMMER MOVES ON TITLE IX, SPENDING, GUNS — Though the House has been in recess since late July, the Senate has been working intermittently through August.

And the Education Department, of course, was still in business.

Education Secretary Betsy DeVos will reportedly release new Title IX rules that, among other changes, would let schools set new evidentiary standards, making it more difficult to prove an assault occurred. The report came almost a year after DeVos said she would rewrite the Obama-era rules that she said inappropriately weighted campus proceedings against the accused.

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And, earlier in August, reports emerged that she had considered allowing schools to use federal Title IV grants under the Every Student Succeeds Act to buy guns to keep in schools. The report caused substantial uproar, including an unsuccessful effort to block it in a pending Education Department spending bill in the Senate.

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More than 170 House Democrats also wrote to DeVos last week, asking that she “clearly and unequivocally disallow the arming of teachers using [the funds] intended to improve equity of educational opportunity,” and asked for her written confirmation by the end of the week. All but five Senate Democrats followed up with their own letter later in the week.

That Education Department spending bill, which calls for the first federal study of the state of America’s school facilities since 1995, passed the Senate. It would authorize $71 billion for the department, and it must still be approved by the House and President Trump. Current funding expires Sept. 30.

THIS WEEK: STUDENT LOAN COUNSELING — The House this week will consider the Empowering Students Through Enhanced Financial Counseling Act, which would require in-person or online counseling before students accept federal student loans or Pell Grants. The bipartisan bill has passed the House twice before, in 2014 and 2015.

TUESDAY: FOR-PROFIT COLLEGES — The National Student Legal Defense Network hosts a screening of Fail State, a documentary “exposing the dark history of predatory for-profit colleges,” the group said in an invitation to the event. Former education secretary John King, Rep. Maxine Waters, civil rights leader Wade Henderson, and the film’s director, Alex Shebanow, will hold a panel discussion before the screening.

WEDNESDAY: “PLAYFUL LEARNING”— The Brookings Institution holds a panel discussion on “the power of playful learning” and how individuals outside the school system, such as doctors, mayors, and librarians, can better promote it.

WEDNESDAY: APPRENTICESHIPS — A House Education and the Workforce subcommittee holds a hearing on “rebuilding the workforce through apprenticeships.”

THURSDAY: STUDENT LOAN DEFAULTS — The American Enterprise Institute holds an event to unveil research by AEI and the Urban Institute on student loan defaults and recommendations for policy reforms.

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