The people agreed to. What the people agreed to when they adopted the constitution. What they agreed to when they adopted the bill of rights is what ought to govern up. For the past 30 years. The Video Library is your free resource. For politics, congress, and washington public affairs. Whether it happened 30 years ago or 30 minutes ago. Find it in cspan Video Library. Cspan, where history unfolds daily. Up next. Conversation about the legacy of the Supreme Court justice antonin scalia. Approach to interpreting the constitution. And noteworthy rulings. From the Hoover Institution in washington. This is an hour 20 minutes. All right. Good morning. Im the director of the program on education policy and governess at harvard university. And i want to welcome you all today to an event that celebrates the publication of a new book called essay on law and education. Its published by the editors are myself, and Michael Mcconnell who is a professor at Stanford University school of law. And was a judge of the Circuit Court of appeals. So, we held a conference about a year ago. In which all the papers that were gathered together for this short publication were discussed and analyzed and we have with us today two of the participants in that conference. And authors of tw of the essays included in this collection. Antonin scalia was in social justice of the Supreme Court justice who wrote and signed opinions that bore directly upon fundamental elements of the earn educational system. He was also a scholar. And a leading public and a leading public figure. It is appropriate to honor this maam with reflections of his impact on education. Seen broadly as not just schools but scholarship and Public Discourse as well. In doing so we hope to discover through the education window a look into the fundamentals of the justices thinking. Now, few doubt scalias impact on constitutional jury disprudence. He was not only one of the most justices in the nations history. He was also among the best and Justice Elaine Kagan says part of his greatness consists in his abiding commitments above all to the rule of law, his articulation of original principals communicated in that distinctive splendid prose. Despite this applause and nearly 30 years of service on the Supreme Court, only a few have sympathetically considered scalias constitutional approach to judicial interpretation. His powerful prolific writings are partly to blame. Author of several books and numerous lectures he was able to defend his position skillically. As a result, most assessments of scalias life and work are critical. We offer in this collection of writings the hope that it will go some ways towards balancing the current scholars. Though this is a sympathetic view of the justices viewings. Others identify tensions and limitations in scalias thought. Education may be thought to be an odd entry point into scalias thinking but basic constitutional thinkings, freedom of speech, equal opportunity, due process of law, federalism in the role of the expert all arise when considering the institutions that prepare a countrys next generation. To appreciate scalias constitution, it is necessary to place it in historical context. So in my opening essay, at the risk of great oversimplification, i defined it into four broad historical periods. The first which i call naive originalism lasted for more than a century. During that period, justices simply end without apology interpreted laws as constitutional or not by looking at how they compare to the document itself. But at the beginning of the 20th century and well into it, this perspective comes under increasing attack from judicial realists who say that this line of interpretation is nothing but a mask for capitalist dominance in american life. And they said that instead of the justices exercising the power of judicial review, they should defer to the will of the majority. And that realist view comes to dominate court thinking during the new deal and the switch in time that saves nine is thought to be a critical moment when the court begins to back away from declares laws of congress and the states unconstitutional because they dont fit with what some think is the correct understanding of the constitution. So judicial deference to legislative majorities is the dominant view in the post war period until the 1960s when in the wake of the brown decision the court moves in the direction of interpreting the constitution as a living document, one that can change with the experiences of the American People as interpreted by the justices themselves. And, so, this new line of thinking which reestablishes the court as a definitive interpreter of the constitution but now an unconstrained court, one where justices can express their own perspective on the issues of the day is the one that scalia is troubled by and to counter that living constitution doctrine, he constructs what i would call a new rugged originalism, one that pays close attention to the text of the constitution. And the meaning of that text as originally understood by the people who read it. Not the original intentions of those who wrote it but the meaning of the text as originally understood. And he combines that with a respect for judicial precedent and takes into account the judicial realist critique of excessive of not accommodating to the will of the majority as expressed in legislative enactments. So this new originalism has a ruggedness thats able to stand up to and perhaps usher into a new period that will provide the court with some alternative to the living constitution doctrine that has held sway for such a sustained period of our contemporary history. Well, thats my overarching perspective. The members of our panel today are going to elaborate their own perspectives as it applies to spect domains of this question, what is scalias constitution as it pertains to education. And ill introduce all of them now so that we can move quickly through the panel. The first speaker will be the thomas professor of mesh politics at boston college. His research and writing focuses on the intersection of law and politics. Hes written several books and many articles, but the one that i think is most pertinent to mention today is the forthcoming book that he will be publishing early next year entitled the transformation of title nine. Im sure you will find it very pertinent to the contemporary debates over the meaning of that piece of legislation. Our second speaker will be amy wax, who is the professor of law at the pennsylvania law school. She holds degree from yale, harvard and columbia. She served as a law clerk on the d. C. Circuit of appeals. He was my representative to congress when i lived in chicago. I think he was a terrific individual at that time and im sure that was a great opportunity for amy to hone her skills as a legal analyst. Then she worked in the office of the solicitor general at the department of justice. Finally, we have as a commentator on the enterprise ambassador boyden gray, who is the Founding Partner of boyden gray and associates, a law and Strategy Firm in washington, d. C. , who has for many years focussed on constitutional and regulatory issues. He was the white House Counsel to george h. W. Bush. He has served in many other positions in government and was the ambassador to the european union. He, i must add, was editor in chief of the law review at the university of North Carolina and after serving in the marine corps, he clerked for earl warren and the man who had much to do with the construction of the living constitution. So it will be great to have all of these perspectives this morning and well try to ask everybody to keep their comments limited to 15 minutes or so so that we will have time for discussion. Thank you. When paul first asked me to contribute to this is this on . Let me try this again. When paul first asked me to contribute to this volume, i was a little amused because i thought it would be like writing a commentary on the barking of a dog that didnt bark. By that i mean Justice Scalia didnt write a lot about his education philosophy or his theory of law and education. So ic constructed what i though Justice Scalia would say about his views on law and education. And this is my madeup quote. I dont 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 how i vote in the voting booth. But not much to say about what i do as a judge. Unlike state constitutions, the u. S. Constitution doesnt even contain the worord education. Public schools are no different from any other public institution. They cannot discriminate on the basis of race. They cant establish a religion and they cant 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 alaw my personal views of education not to come inhrough the back door of speculation about claims of statutory purpose or legislative history or intent. The method i employ to interpret the constitution and federal laws contains no special provision for educational institutions and they shouldnt. What i would suggest is i know more about education, the school boards, legislators, governors and school administrators. I dont and judges should realize they dont. This is obviously quite different from many of his more liberal colleagues because for many liberals on the court, the job of the judge is to promote equal educational opportunity, and is that Justice Briar called not the words of brown but the hope and promise of brown. In order to do that, they need the help of a lot of experts, and that is what amy wax will be talking about Justice Scalias distrust of educational experts or basically experts talking about abstractions in a variety of contexts. And Justice Scalias view was that what brown versus board of education culminated in was a simple rule, not a broad quest, but the rule that our constitution is color blind and that racial classifications are so pernicious, they should be used only in the most limited circumstances. The purpose of the courts ruling on brown and its successors is not to produce the best possible education but to prevent the worst possible abuses. And that is the use of racial classifications. Now, during a conference, paul tried to promote some controversy. He knew amy wax would never say controversial. So he tried to provoke an argument between the dean of the Harvard Law School jim ryan and myself in which he succeeded in doing and resulted in an article in education next. I think it has been handed out. And this was i think a useful debate. Heres what jim ryans argument was. It is something you have probably heard before, but i think he stated it forcefully and it requires some response. His argument is basically about Justice Scalias view that affirmative actions programs in the university of texas or in the parents of all cases were unconstitutional. His argument goes number one, this view of the color blind constitution is not in the text of the constitution. Its not in any original intent of the founder the framers of the 14th amendment. It disregards precedent. So to the extent to the extent that Justice Scalia insists upon taking this view, he is contradicting everything he claims to stand for and that this is pure policymaking of the sort that Justice Scalia condemned others for doing. Now, the way i would respond to that, and i think this goes to a really fundamental part of Justice Scalias jury ris prudence is to understand that he didnt claim there was going to be one way of determining whether a law was constitutional or unconstitutional but rather that there were a variety of considerations that needed to be taken into account. Now, to some extent that makes it hard to say that the rule of law is the law of rules because it requires some consideration of these balancing and looking at these hard cases. But what were these serious considerations that were particularly important to him . First and most important obviously was the text of the constitution in its original meaning. But jis tis scalia presented his view and text and tradition, not just text. Which means well established precedents have to be respected. This means above all, the most important of these is brown versus board of education. No matter whether it can be squared easily with the text and the original understanding, it is so well entrenched that that has to be one of our starting points. On top of this, respect for elected officials. People who write the laws that we should whose text we should respect. Thats draw with congress and state and local officials. Farther down the list, deference to administrative agencies. If you dont believe judges from the expertise, you look to other experts. And finally i think in general, the competence of judges. Now, brown creates a hard case. And Justice Scalia really didnt say a lot about the grounding of brown, one of the coauthors, Michael Mcconnell, has tried to show that there was support among those people who authored and voted for the 14th amendment to prohibit use of rational classifications in segregation. Thats one part. But what Justice Scalia basically said, what we did talk about was that there is this long tradition of understanding the constitution as color blind, stretching from what professor mcconnell found, to justice har land to the views of the naacp who argued brown versus board of education. Often forgotten is what the Civil Rights Act of 1964 says, clearly they say that Racial Discrimination of any sort is forbidden, even if it is used to achieve racial balance. And finally, a wide variety of Court Decisions on such classifications. I think behind this lies an understanding which i clearly share about the unique evil of racial classificatis, especially in a system such as ours that relies on mad syrian pluralism to govern. Now, in trying to deal with the legacy of brown, Justice Scalia tried to limit some of the expansion through the precedent. Especially i just used the leading example here, which is the swan case of 1971 which both dean ryan and Justice Briar basically take as the cornerstone of their analysis. And if any of you know anything about the swan case, it is probably the most baffling, confu confusing, selfcontradictory decision ever written by the Supreme Court. I think thats saying a lot. So what justice in a nutshell what i would say is Justice Scalia was, in trying to prune back some of these precedents to get to what we viewed as the heart of brown versus the board of education was above all saying these decisions used to deal with the extraordinary problem of school segregation, which was the extraordinary opposition and the court and government had to take expra ordinary measures to defeat that, that those should not be applied in ordinary circumstances, that we should pry to refer to any ordinary method of statutory interpretation. Now, i thought i would mention something about another problem that Justice Scalia wrestled with, and that is cases in which civil rights are established under civil rights statutes. I was thinking about this. I had been working about title nine endlessly for the last couple of years and some of you might know at the beginning of the year the Supreme Court had on its docket about the access of transgender students to bathrooms and the office of civil rights and board of education issued a letter basically saying that schools had respected gender identity of students in allowing access to gender facilitate bath raroomsb. The Trump Administration withdrew the letter and the Supreme Court sent it back to the fourth circuit. I really would have liked to read Justice Scalias opinion in this case. It would have been an opportunity for him to write one of his probably most vooifd, whitty and memorable decisions, but he didnt get that opportunity. What i would point out is there is an irony here because im sure Justice Scalia would not have upheld the fourth circuit. But two president s were cited by the courts in those cases. One was Justice Scalia voted with the majority and the other he wrote the opinion. And that was the onkali case. I wont go into detail, but Justice Scalia wrote it is not limited to what legislators had in mind at the time. And Justice Scalia has also been an advocate of deference to administrative agencies, including their interpretations of their own regulations. So this is a problem in which he tried to be loyal to legislative enactments, in which he tried to recognize administrative expertise. So i think it increasingly led to a situation where he would be appalled by the outcomes, in which often especially in rules about affirmative action, he would have to decide whether this violated the constitution and in many cases i think he probably would say yes. So i would like to lead with this thought, which is that Justice Scalias understanding of leads gives us a number of different serious concerns about how we should govern ourselves. But it leaves us with the difficulty of trying to bring some order to these important concerns w