What the Kavanaugh Confirmation Does and Does Not Mean for School Choice

The North Carolina Senate Chamber (Image)

In a recent article, two staff writers cautioned readers about Brett Kavanaugh’s stances on school choice. While much of this article is factually accurate, it fails to fully address the respective policy-making roles of the Supreme Court and State Governments. From a seat on the Supreme Court, Justices hold the power to declare that a particular policy is illegal, but not to create new policies. Thus, the expansion of school choice lies mainly within the hands of states. As a Supreme Court Justice, Kavanaugh will not possess the power to expand school choice. Rather he will fail to stop the expansion of school choice policies that are already expanding, especially in North Carolina.

The North Carolina General Assembly has consistently continued to expand school choice measures. In particular, the propagation of charter schools and the Opportunity Scholarship have increased the level of school choice in North Carolina. The Opportunity Scholarship is a program that allows state funds to be provided to students to cover the cost of attendance at any private school. Following this list, the vast majority of recipient schools are religious in nature. Kavanaugh cannot break down the wall of separation between public education and religion. He can only vote to allow states to break down that wall should they choose to do so.

During the summer 2018 short session, the North Carolina General Assembly maintained its support of school choice expansion with the passage of House Bill 514. This bill allows several notably affluent municipalities on the fringe of the Charlotte-Mecklenburg school district to form and run their own charter schools. Still, it is unlikely that any charter schools will spring up in these municipalities because HB 514 does not allow for employees at municipal charter schools to enter into state health insurance and retirement plans. This omission allowed the bill to be classified a local bill and to become law without the Governor’s signature. Currently, there likely is not enough support for municipal charter schools to override a veto of a bill that would allow for employees of municipal charter schools to enter into state level health and retirement plans. This could well change after the midterm elections, and it will certainly be an issue during next year’s long session of the North Carolina General Assembly. Needless to say, giving municipalities the ability to open charter schools would be a massive advancement for school choice.

While all eyes are focused on the movement of the highly controversial Secretary of Education or Supreme Court, our state legislature is passing measures that have significant and rapid impacts on education policy. School choice policies are generally supported by Republicans as measures to deregulate the education market and create greater competition. With a Republican supermajority in both houses of the General Assembly, it’d be no surprise if this trend towards more expansive school choice continued. While Washington politics have some bearing on school choice, the real decisions for education in our state are being made right down the street in Raleigh.