In his 30 years on the Supreme Court, Justice Antonin Scalia wrote surprisingly few opinions in education cases, and even when he did, he seldom mentioned education. Instead, he focused on issues such as standing, techniques of statutory interpretation, the meaning of the First Amendment, and the importance of judicial restraint. Scalia believed his job in education cases was to read and apply the text of the law, and not allow his personal views on education to come in through the backdoor via free-ranging interpretations of vague statutory and constitutional provisions.

This set him apart from his more-liberal colleagues, who viewed Brown v. Board of Education (1954) not as a prohibition on the use of racial classifications in education, but rather as a mandate for judges to do whatever they could to promote “equal educational opportunity.” Judges who embrace this understanding of Brown and equal protection feel compelled to listen to the “experts” on educational inequality and to use their judicial authority to remedy injustices. Scalia, in contrast, favored a colorblind interpretation of the equal protection clause, that, in his words, “proscribes government discrimination on the basis of race, and state-provided education is no exception.”

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Scalia claimed that the Fourteenth Amendment does provide support for school desegregation. In Rutan v. Republican Party (1990), he wrote that “the Fourteenth Amendment’s requirement of ‘equal protection of the laws,’ combined with the Thirteenth Amendment’s abolition of the institution of black slavery, leaves no room for doubt that laws treating people differently because of their race are invalid.” Scalia focused on the general understanding of the terms “equal protection of the laws,” “due process of law,” and “privileges and immunities” in the late 1860s and thereafter. Although he could not prove there was broad support for prohibiting de jure segregation in 1868, he did show that there was a clear and vibrant tradition in case law that viewed the use of racial classifications by government as pernicious, particularly because such a practice is so susceptible to the tyranny of majority faction. This position was presented most forcefully in Justice John Marshall Harlan’s well-known dissent in Plessy v. Ferguson (1896). And Congress, through its voting patterns during the 1860s and 1870s, expressed a similar opposition to racial classifications, as the constitutional scholar Michael McConnell has demonstrated.