Supreme Court’s Scalia Brought Conservative Outlook to Education Cases

By Mark Walsh — February 14, 2016 11 min read
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U.S. Supreme Court Justice Antonin Scalia, who was found dead Saturday at age 79, brought his conservative and originalist outlook to scores of education cases during his nearly three decades on the high court.

On the major education cases of his era, Scalia consistently voted against the consideration of race in higher education and K-12 schools, backed a low wall of separation between church and state, and generally favored school administrators over students and their rights.

Scalia was found dead on Saturday morning at a ranch resort in west Texas. A cause of death was not immediately reported. Chief Justice John G. Roberts Jr. issued a statement that said Scalia “was an extraordinary individual and jurist, admired and treasured by his colleagues. His passing is a great loss to the court and the country he so loyally served.”

President Barack Obama took to the airwaves from California to say that Scalia was a “larger than life presence on the bench” who “dedicated his life to the cornerstone of our democracy: the rule of law. Tonight, we honor his extraordinary service to our nation and remember one of the towering legal figures of our time.”

Scalia was nominated by President Ronald Reagan in 1986 and became the first Italian-American on the high court. (He took the seat of then-Associate Justice William H. Rehnquist, who was nominated at the same time to succeed retiring Chief Justice Warren E. Burger.)

Scalia’s father, Salvatore, emigrated from Italy to the United States, learned English, and became a professor of romance languages at Brooklyn College. The justice’s mother, Catherine, was an elementary school teacher. An only child, Scalia was doted on by his family and given high expectaions for achievement. Scalia graduated first in his class in 1954 at St. Francis Xavier, a military prep school in Manhattan. He was also first in his class at Georgetown University and graduated magna cum laude from Harvard Law School in 1960.

He met his wife, Maureen McCarthy, a Radcliffe College student, while he was in law school. Both devout Roman Catholics, they had nine children and are grandparents to more than 30.

President Obama indicated his intention to nominate a successor this year, his final year in office. With the U.S. Senate under Republican control, Republican leaders as well as the candidates seeking the GOP presidential nomination called for allowing the next president to make the choice for a vacancy that could tip the balance of the court to the left.

In the near term, Scalia’s death holds implications in particular for two major education cases that have been argued this term and are pending decisions.

In Fisher v. University of Texas at Austin, the court is weighing the university’s race-conscious admissions program. Since Justice Elena Kagan is not participating in that case, Scalia’s death leaves only seven justices participating. Because the court’s conservatives, including Justice Anthony M. Kennedy, have been skeptical of the university’s plan, one seemingly likely outcome is for the court to rule 4-3 to strike it down or send it back for even more scrutiny by lower courts.

The outcome may be different for the other big education case—Friedrichs v. California Teachers Association, about whether states may require non-members of public-employee unions to pay service fees for representation by the union.

Scalia’s death makes it much more likely that the court could deadlock 4-4 on that case, which would result in an affirmance of the lower court ruling without an opinion. In the Friedrichs case, the U.S. Court of Appeals for the 9th Circuit upheld California’s agency-fee system, holding—as sought by the lawyers for the teachers challenging the system—that only if the Supreme Court overruled one of its key precedents authorizing agency-fee systems could the dissident teacher prevail.

Scalia, In His Own Words

Here are some highlights of Justice Scalia’s writings and public comments in education cases. He was known, of course, for tossing barbs, particularly in dissent.


In Lee v. Weisman, a 5-4 decision in 1992 that ruled clergy-led prayers at a public middle school graduation ceremony violated the First Amendment’s prohibition against government establishment of religion, Scalia wrote the dissent.

“In holding that the Establishment Clause prohibits invocations and benedictions at public school graduation ceremonies, the court—with nary a mention that it is doing so—lays waste a tradition that is as old as public school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally,” Scalia wrote.

“As its instrument of destruction, the bulldozer of its social engineering, the court invents a boundless, and boundlessly manipulable, test of psychological coercion,” he added.

In a 1993 case, Lamb’s Chapel v. Center Moriches Union Free School District, the court held that the school district violated the rights of a religiuous group by denying it after-hours use of school classrooms to show a religious film series to members of the community.

Scalia concurred in the outcome, but he wrote a colorful separate opinion to criticize majority-opinion author Justice Byron R. White for his reliance on a much-maligned test for analyzing whether government action violated the establishment clause, the so-called Lemon test from the 1971 decision Lemon v. Kurtzman.

“As to the court’s invocation of the Lemon test: like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District.”

Scalia joined the dissent when the court held in a 2000 decision, Santa Fe Independent School District v. Doe, that student-led, student-initiated prayers at a public high school’s football games violated the establishment clause. And in the landmark 2002 case of Zelman v. Simmons-Harris, Scalia joined a majority that upheld Ohio’s program of private school vouchers in Cleveland that permitted voucher recipients to choose religious schools.


Scalia voted with the majority in several decisions making it easier for school districts to get out of federal court supervision for desegregation, and for greatly reducing the cirumstances under which districts could voluntarily take race into account, in the landmark 2007 decision in Parents Involved in Community Schools v. Seattle School District.

Scalia also believed affirmative action violated the equal protection clause, writing a short dissent in the 2003 decision in Grutter v. Bollinger, which upheld the consideration of race in admissions to the University of Michigan Law School.

The law school’s “mystical ‘critical mass’ justification for its discrimination by race challenges even the most gullible mind,” Scalia wrote. “The admissions statistics show it to be a sham to cover a scheme of racially proportionate admissions.”

In December, when the court heard arguments in the Fisher case, Scalia drew criticism when he tried to enunciate the “mismatch theory” about racial preferences in admissions, in which some scholars have suggested that certain minority group members fare poorly when they are admitted to selective colleges under affirmative action programs.

“There are those who contend that it does not benefit African-Americans to—to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school—a slower-track school where they do well,” Scalia said during the arguments. “I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible.”

In 1996, Scalia was the lone voice in dissent when the court, in United States v. Virginia, voted 7-1 to strike down the exclusion of women by the state-run Virginia Military Institute. (Justice Clarence Thomas did not participate in the case.)

“Today the court shuts down an institution that has served the people of the Commonwealth of Virginia with pride and distinction for over a century and a half,” Scalia wrote. “As to facts: It explicitly rejects the finding that there exist ‘gender-based developmental differences’ supporting Virginia’s restriction of the ‘adversative’ method to only a men’s institution, and the finding that the all-male composition of the Virginia Military Institute is essential to that institution’s character.”

On gay rights, Scalia was the court’s most outspoken critic of a movement which he nevertheless seemed to regard as inevitable.

Writing in dissent in Lawrence v. Texas, the 2003 decision in which the court struck down state homosexual sodomy laws, Scalia wrote that the court had taken sides “in the culture war.”

“Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive,” he wrote.

Scalia softened his rhetoric by last year, when the court ruled in Obergefell v. Hodges that states must recognize same-sex marriage.

“It is not of special importance to me what the law says about marriage,” Scalia said in a dissent. “It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”


Scalia voted with court’s majority upholding the right of school administrators to exert control over school newspapers, in the 1988 decision in Hazelwood School District v. Kuhlmeier; and to allow them to punish a student for displaying a banner containing a pro-drug message in the 2007 ruling in Morse v. Frederick.

In 1995, he wrote the opinion for the court in Vernonia School District v. Acton, which upheld against a Fourth Amendment challenge a school district’s policy of subjecting all student-athletes to random drug testing.

“It seems to us self-evident that a drug problem largely fueled by the ‘role model’ effect of athletes’ drug use, and of particular danger to athletes, is effectively addressed by making sure that athletes do not use drugs,” Scalia wrote.

Scalia took a more expansive view of children’s rights outside the school context. In Brown v. Entertainment Merchants Association, he wrote the opinion for the court striking down a California law that restricted the sale or rental of violent video games to minors.

The ruling favored not only the video game industry, which brought the challenge, but also the idea that children have a First Amendment right to be exposed to ideas.

“California’s effort to regulate violent video games is the latest episode in a long series of failed attempts to censor violent entertainment for minors,” he wrote, citing dime novels, motion pictures, radio dramas, comic books, television, and music lyrics.

But he seemed to especially relish pointing out that children’s literature has long contained violent themes and imagery.

“California’s argument would fare better if there were a longstanding tradition in this country of specially restricting children’s access to depictions of violence, but there is none,” Scalia wrote. “Certainly the books we give children to read—or read to them when they are younger—contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers ‘till she fell dead on the floor, a sad example of envy and jealousy.’ Cinderella’s evil stepsisters have their eyes pecked out by doves. And Hansel and Gretel (children!) kill their captor by baking her in an oven.”

On a more esoteric debate, Scalia last fall told an audience at Georgetown University Law Center that that there is no U.S. constitutional right of parents to direct the education and upbringing of their children.

The nation’s charter document is “not a perfect Constitution,” and many “important rights are not contained there,” Scalia said. “For example, my right to raise my children the way I want. To teach them what I want them taught, not what Big Brother says. That is not there.”

Scalia was echoing views he had expressed in dissent to a 2000 decision, Troxel v. Granville, that limited grandparents’ visitation rights to children in a case where the custodial parent objected.

Scalia’s dissent cast some doubt on the constitutional underpinnings of the court’s two key precedents on parental rights in education—Meyer v. Nebraska, a 1923 decision in which the court struck down a Nebraska law that barred instruction in foreign languages because it interfered with the right of parents to obtain such instruction for their children, and Pierce v. Society of Sisters, a 1925 ruling that struck down an Oregon law that required public school attendance, thus precluding enrollment in parochial schools.

Because such a parental right is “simply not in the Constitution,” Scalia said in his Georgetown remarks, “I will not enforce it from the bench.”

“The notion that everything you care a lot about has to be in the Constitution is a very dangerous notion,” Scalia continued. “Because it begins with stuff we all agree upon. ‘Oh, sure, we ought to be able to educate our children the way we want.’

Such thinking, he said, set the court on a slippery slope of constitutional rights that “began with, ‘Oh, who could possibly disagree with Pierce v. Society of Sisters?’ Nobody could disagree with that. But then, once the court is making these decisions, it is going to make decisions a lot of people disagree with.”

Photo: Associate Justice Antonin Scalia, in a 2005 portrait session with fellow members of the U.S. Supreme Court.—J. Scott Applewhite/AP-File

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