Brett Kavanaugh on Education

Schools are limited in regulating student off-campus speech

Majority opinion: The Court ruled 8-1 that though there might be circumstances in which off-campus speech might fall under the purview of the school, this did not qualify. It did not involve bullying or threatening behavior, nor did it cause any disruptions at the school. Written by Breyer; joined by Roberts, Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh, & Barrett.

Concurring opinion: Alito, joined by Gorsuch, focused on when a school is acting in loco parentis, agreeing that was not the case here.

Dissenting opinion: Thomas argued that, historically, a school can regulate off-campus speech if it has a tendency to harm the school, faculty, students, or programs.

States funding private schools must fund parochial schools

The court stopped short of requiring states to fund religious education, ruling only that programs cannot differentiate between religious and secular private schools. "A state need not subsidize private education. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious," Roberts wrote.

Roberts and other conservative justices said the no-aid policy had its roots in 19th-century anti-Catholic sentiment, that blocked religious schools from receiving public funds. Amendments in 37 states were "'born of bigotry' and 'arose at a time of pervasive hostility to the Catholic Church,'" he wrote. "Many of its state counterparts have a similarly 'shameful pedigree.'"

The wall between religious schools and states must come down