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About this book

This book explores the application of Scalia’s textualism and originalism to education law and reflects upon Scalia’s teachings and his pedagogy. Education law may seem to be an odd vehicle for considering Scalia’s constitutional approach, but thinking about schools requires attention to political fundamentals—freedom of speech, free exercise of religion, equality of opportunity, federalism, and the proper role of the expert. Legal scholars, philosophers, and political scientists provide both critiques and apologies for Scalia’s approach.

Table of Contents


Scalia on Education


Chapter 4. Scalia’s Dilemmas as a Conservative Jurist

Justice 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. His “text and tradition” jurisprudence was designed above all to prevent judges from reading their own policy preferences into the vague words of the Constitution. Rather than read Brown as an invitation to judges to join with academic experts to remake our schools to achieve equal educational opportunity for all, he interpreted the equal protection clause and Brown to incorporate a simple command: thou shall not classify by race. But two other tenets of Justice Scalia’s jurisprudence, respect for precedent and obedience to the commands of Congress, sometimes pushed in a different direction. This chapter explores how these principles can come into conflict with one another in education cases. Justice Scalia’s efforts to balance and reconcile these competing principles helps us understand the dilemmas faced by conservative jurists in the twenty-first century.
R. Shep Melnick

Scalia, the Educator


Chapter 8. Scalia’s Teaching Methods and Message

As a judge, Justice Scalia famously adhered to a textualist and originalist approach in service of republican constitutionalism. As an educator, he criticized dominant trends in legal education. The inter-related nature of those two arguments and the deeper roots of his constitutionalism are best stated in a largely forgotten lecture that Scalia delivered to a Catholic audience in late 1986, just months after his appointment to the Supreme Court. The themes presented in that lecture—to which Justice Scalia returned in his last public speech, nearly three decades later—illuminate points he pressed in some of his judicial opinions on issues of education law.
Adam J. White


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