Book of Essays Examines the Late Justice Scalia on Education, Broadly Defined

By Mark Walsh — September 21, 2017 5 min read
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The late U.S. Supreme Court Justice Antonin Scalia’s views and legal opinions on education are not his best-known legacy, but they provide a window into his broader judicial philosophy, even if the justice himself might not have thought the subject worthy of a book. Those are some of the conclusions of a new book of essays that examines Scalia and education.

“Education may be thought to be an odd entry point into Scalia’s thinking,” Paul E. Peterson, a government professor at Harvard University and a co-editor of the volume, said at a panel discussion late last week at the Hoover Institution’s Washington office. “But basic constitutional questions—free exercise of religion, freedom of speech, equal opportunity, due process of law, federalism, and the role of the expert—all arise when considering the institutions that prepare a country’s next generation.”

Scalia “wrote and signed opinions that bore directly on fundamental elements of the American educational system,” Peterson added. “He was also a scholar and leading public figure. It is appropriate then to honor this man with a collection of reflections on his impact on education, seen broadly not just as schools but as scholarship and public discourse as well.”

Scalia died in February 2016, leaving a vacancy on the Supreme Court that ended with the confirmation of Justice Neil M. Gorsuch this past April.

Peterson, a scholar of school choice and education governance at Harvard who Education Next, co-edited the book with Michael W. McConnell, a former federal appeals court judge who is now a law professor at Stanford University and a scholar of church-state issues.

Scalia’s Education: Essays on Law and Education, published by Palgrave Macmillan, is a bit esoteric and perhaps difficult to adequately summarize.

Peterson, who is also a fellow at the Stanford-based Hoover Institution, contributes an essay titled “Scalia’s Rugged Originalism,” about the late justice’s philosophy of constitutional interpretation.

McConnell’s essay is “Scalia and the Secret History of School Choice,” and it argues that Scalia helped lead a 180-degree turn in the court’s jurisprudence on choice.

“Not only did the court’s change of doctrine improve the educational prospects of some of the neediest children in America, but it enabled them to exercise the freedom of religious choice that previously had been enjoyed only by those wealthy enough to pay the tuition,” McConnell writes. “Justice Scalia’s indefatigable efforts to restore a true original understanding of the Establishment Clause were indispensable to this transformation.”

Other essays include one by Mark Blitz of Claremont McKenna College examining what Scalia’s education opinions teach about constitutional interpretation; one by Amy L. Wax of the University of Pennsylvania law school about Scalia’s views on scientific and legal expertise in the legal process; and one by Adam J. White of Hoover about Scalia as an educator himself (through his opinions, lectures, and articles) and his views on modern legal education.

But arguably the most relevant contributions are a pair of essays about Scalia on race and education.

James E. Ryan, the dean of the Harvard Graduate School of Education who was just named to become the president of the University of Virginia next year, argues that Scalia’s commitment to originalism was less principled.

“In cases involving the use of race or gender in student assignment or admissions, Justice Scalia was faithful neither to originalism nor, at least in the race cases, to precedent,” Ryan writes.

He analyzes Scalia’s votes and opinions in United States v. Virginia, the 1996 decision that struck down the male-only admissions policy at the Virginia Military Institute; Grutter v. Bollinger, the 2003 decision that upheld a race-conscious admissions plan at the University of Michigan’s law school; and Parents Involved in Community Schools v. Seattle School District, the 2007 decision that sharply curtailed the ways school districts could voluntarily consider race in assigning students to schools. (Scalia was in the minority in the VMI and Grutter cases and in the majority in Parents Involved.)

“In the VMI case, Justice Scalia seemed eager to defer to the state’s judgment; in Grutter and later in Parents Involved, he seemed highly skeptical,” Ryan writes.

The essay by R. Shep Melnick, an American politics professor at Boston College, responds in part to Ryan, saying that Scalia’s “opinions in education cases display his profound skepticism about judges’ constitutional authority and institutional capacity to reform public education in the United States.”

The Ryan and Melnick essays are featured in edited form in the fall edition of Education Next.

The Hoover book of essays is not a comprehensive examination of Scalia and education, nor does it claim to be. For example, there is little exploration of Scalia’s votes and opinions on student rights of free speech or to be free of unreasonable searches and seizures in schools. Nor is there discussion of Scalia’s views that the Supreme Court’s key precedents from the 1920s establishing parents’ rights to direct the upbringing (including the education) of their children were wrong.

Melnick, however, does note that Scalia often noted that education was not a right protected by the U.S. Constitution. And he muses that if Scalia himself had been asked to contribute an essay to the book, “it is likely he would have given this gruff reply":

I don’t have much to say about law and education. To the extent I have coherent views on education, they influence where I send my children to school and the decisions I register in the voting booth, not what I do as a judge. Unlike state constitutions, the U.S. Constitution does not even contain the word “education.” Public schools are no different from any other public institution. They cannot discriminate on the basis of race. They can neither establish religion nor discriminate against religion.

To be sure, many federal statutes govern educational institutions, but my job as a judge is to read and apply the text of the law, not allow my personal views on education to come in through the back door via dubious claims about statutory purpose or legislative intent. The method I employ to interpret the Constitution and federal laws contain no special provisions for educational institutions or issues. And they shouldn’t. For that would suggest that I know more about education than school boards, legislators, governors, and school administrators. I don’t, and no judge should assume he or she does.

We’ll never know if that’s how Scalia truly would have answered. But there are enough of his writings about education to fill another whole volume of essays like Scalia’s Education.

A version of this news article first appeared in The School Law Blog.