It is published by paul Gray Mcmillan and the editors are myself and Michael Mcconnell was a professor at Stanford University school of law and was a judge of the Circuit Court of appeals. We have a conference about one year ago in which all of the papers that were gathered together for this short publication were discussed and analyzed and we have with us today, to the participants in the conference and opposite to the essays included in this collection. Antonin scalia was an associate justice of the United StatesSupreme Court who wrote and signed opinions directly on fundamental elements of the american system. He was also a scholar and a leading public figure. It is appropriate that to honor this man with the selection of reflections on his impact on education. Seeing broadly is not just schools but scholarship and Public Discourse as well. In doing so, we hope to discover the, through the education and look into the fundamentals of the justices thinking if you doubt his impact on constitutional prudence, cast unseen at harvard that he was not only one of the most important justices in the nations history also among the best. And Justice Elena kagan says part of this consists in his abiding commitment of all to the rule of law. His articulation of principles communicated in the distinctive splendid pros transformed our legal culture. Despite this applause and despite nearly 30 years of service on the Supreme Court, only a few have sympathetically considered his constitutional approach to judicial interpretation. As powerful prolific writings are partly to blame. Author of several books and numerous lectures, scalia was able to defend his position so skillfully, his disciples seem to have held back. As a result, most assessments of his life and work are critical. We offer in this collection of writings, the hope that it will go some ways towards balancing the current and encourage others to add their own contributions. Although this is a sympathetic interpretation of the justices contributions, it is no eulogy. The collection includes an essay by a strong proponent of the living constitution. And others identified tensions and limitation in his thoughts. Education may be thought to be an odd entry point into his thinking but basic constitutional questions, free exercise of religion, freedom of speech, equal opportunity, due process of law federalism and the role of the expert authorized when considering the institutions that prepared the countrys next generation. To appreciate scalias constitution is necessary to place it in historical context. And so, in my opening essay, at the risk of great oversimplification, i define the history of constitutional interpretation into four broad historical periods. The first project called nacve regionalism. It lasted for more than a century. During that period, justices simply and without apology, interpreted laws as constitution 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 traditional realists. They say that it is not this line of interpretation, it is nothing but a mask for capitalist dominance in american monies. 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 this is got to be a critical moment when the court begins to back away from declaring laws of congress and state unconstitutional because they do not fit with what some think is the correct understanding of the constitution. So judicial deference to legislative majorities is the dominant view in the postwar period. Until the posted for 60s in the wake of the brown decision, the court was 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 if thinking which reestablishes the court as a definitive interpreter of the constitution but now, the unconstrained court. One where justices can express their own perspective on the issues of the day is the one that Antonin Scalia is troubled by. And to counter that living constitution doctrine, he constructs what i would call a new rugged regionalism. One that plays close attention to the text of the constitution. And the meaning of the text as originally stood or understood by the people that 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 the respect for judicial precedents 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 regionalism has a ruggedness that is able to stand up to and perhaps usher into new. 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. That is my overarching perspective. The members of our panel today are going to elaborate their own perspectives as it applies to specific domains of this question, what is scalias constitution as it pertains to education . And i will introduce all of them now so that we can move quickly through the panel. The first speaker will be the professor of american politics at boston college. His research and writing focuses on the intersection of law and politics, he has written several books and many articles with the one that i think is most pertinent to magic today is the forthcoming book that he will be publishing early next year entitled the transformation of title ix. Regulating gender equity and education. Im sure that you will find it very pertinent to the contemporary debates over the meaning of that piece of legislation. Our second speaker will be amy a professor of law at the university of pennsylvania law school. She holds degrees from yale, harvard and columbia. She served as a on the d. C. Circuit court of appeals. That was my representative congressman live in chicago. I think he was a terrific individual at that time. I am sure that was a great opportunity for amy to hone her skills as a legal analyst. Then she worked in the office of the department of justice. And finally, we have as a commentator on the enterprise, ambassador gray who is a Founding Partner of law and Strategy Firm in washington dc. Who has for many years, focused on constitutional regulatory issues. He was the white House Counsel to president george h. W. Bush. He has served in many other positions in government and was the ambassador to the european union. , i must and that he was editorinchief of the law review at the university of North Carolina and after serving in the marine corps, he clerked for earl warren, chief justice of the United StatesSupreme Court and the men 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. We will try to ask everybody to keep their comments limited to 15 minutes or so so that we will have time for discussion. When paul first asked me to contribute to this volume, i was a little bit amused because i thought it would be like writing a commentary on the barking of a dog that did not bark. And by that i mean that justice Antonin Scalia did write a lot about his education philosophy or his theory of law and education. So i constructed this short summary of what i thought justice Antonin Scalia would say about his news on law and education. And this is a madeup quote. I do not have much to say about law and education to the extent that have coherent views on education, the influence where i send my children to school and how i vote in the voting booth. But not much to say but 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 cannot establish a religion and they cannot 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 a live person views on education to come in through the back door of speculation about claims of statutory porpoise or legislative history or attempt. The method i employ interpret the constitution and federal law contains no special provision for educational institutions and they shouldnt be because i would say that i know more about education, school boards, legislators, governors and school administrators. I dont and judges should realize that they dont. Now, this is obviously quite different from many of his more liberal colleagues. It has for many liberals on the court, the job of the judge is to promote equal educational opportunity. And that is what Justice Breyer called not the words of brown but the hope and promise of brown. And in order to do that, they need the help of a lot of experts and that is what amy will be talking about Justice Scalias talking about this in a variety of contexts. And Justice Scalias view was that what this culminated in was a very simple rule. Not a broad quest for the promise and the hope of brown but the rule that our constitution is applied and racial classifications are so they should be only used in the most limited circumstances. The purpose of the courts rulings on brown and his successors is not to provide the best education but the worst possible abuses and that is the use of racial classification. During the conference, tried to provoke some controversy. He knew amy would never say anything controversial. So he tried to provoke an argument between the dean of the harvard law school, between ryan and myself in which he succeeded in doing and resulted in an article in education that i think has been handed out. And this was, i think a useful debate. Heres what jim ryans argument was. It is something you probably heard before but i think he stated this forcefully and it required some response. His argument especially about justice Antonin Scalias view about affirmative actions programs were unconstitutional. His argument, number one this view of the colorblind constitution is not in the text of the constitution. It is not an any original attempt of the founder or the framers of the 14th amendment. It disregards president s, it overturns a decision of state and local decisionmakers so to the extent that justice Antonin Scalia excessive untaken view, he is contradicting everything he claims to stand for and this is pure policymaking of the sort that justice Antonin Scalia condemned others for doing. What i would like, the way of response that. I think this goes to a fundamental part of his prudence is to understand that Justice Scalia did not claim there would be one way of determining if and what was unconstitutional. But rather there were a variety of considerations that needed to be taken to count. To some extent, it makes it hard to say that the rule of law is a law of roles because it requires some consideration but of these balancing and looking at these hard cases but what were these series of considerations . Particularly important to him . First and most important obviously was the text of the constitution. And as paul said, the original meaning. But Justice Scalia presented his us text and tradition. Which means wellestablished precedents have to be respected. This means above all, the most important is it brown versus board of education. No matter whether brown horses back board of education can be squared easily with the text in the original understanding, it is so well entrenched and deservedly well entrance. On top of this respect for elected officials. People who break the laws that we should respect their text and this is for state and local officials. Further down the list, deference to administrative agencies. If you do not believe the judges you go to other experts. Finally in general, appreciation for the limited confidence in the capacity of judges. Brown creates a hard case for a textual list. Justice scalia really did not think much about the grounding of brown. One of the coworkers, Michael Mcconnell tried to show that there was support among those people who authored and voted for the 14th amendment to prohibit use of racial classifications and segregation. That is one part. But what Justice Scalia said when he did talk about it was that there is this long tradition of understanding the constitution is colorblind. Stretching from professor mcconnell, the authors of the 14th amendment, transport to the views of the naacp to argue brown versus board of education. Often forgotten i think it is particularly important is with 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 malice. And finally a wide variety of Court Decisions on suspect classifications. And i think behind this, lies in understanding which i clearly share about the unique evil of racial classifications. Especially in a system such as ours that relies on pluralism to govern. Now, in trying to deal with the legacy of brown, Justice Scalia tried to limit some of the expansion through the president s. Especially i just used the leading example which is a case in 1971 which dean ryan and justice by basically take the analysis and if any of you know anything about this case it is probably the most baffling, confusing selfcontradictory decision ever written by the Supreme Court. And i think that is saying a lot. Those not be applied in ordinary circumstances. We should try to revert to what he calls the ordinary methods of constitutional statutory. 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 and especially under the regulations issued by administrative agencies. The thing about this has been working on title ix endlessly for the last couple of years. Some of you might know that at the beginning of the year the Supreme Court had on its docket, the gg case, about the axis of transgender students to bathrooms and the Civil Rights Department of education issued a letter basically saying that schools had to respect the gender identity of students in allowing access to gender segregated facilities and the court, Fourth Circuit and upheld that in the Supreme Court had decided to review it until the Trump Administration withdrew the letter and Supreme Courts impact for certain. Now, i must say, i would have liked to read Justice Scalias opinion in this case. It would have been an opportunity for him to write one of his most vivid and witty and memorable decisions. But he didnt get that opportunity. What i would point out is there is an irony here because im sure that Justice Scalia would not have upheld the Fourth Circuit but there are two of the most important president s that have been cited by the courts in those cases and one was Justice Scalia voted with the majority and the other he wrote the opinion and that was the. [inaudible] case. I wont go into detail but just as scalia wrote that the sweep of title ix and especially sexualharassment rules is not limited to what legislators had in mind at the time. Justice philia has a verisign been an advocate of deference to administrative agencies including their interpretation of their own regulation. This is a problem in which he tried to be loyal to legislative enactments in which he tried to recognize administrative expertise. I think it recently led to a situation where he would be appalled by the outcome in which often especially rules of affirmative action he would have to decide whether this violated the constitution and i think he would say yes in these cases. What i would like to leave the thought is that Justice Scalias understanding leads and 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 when, as is often the case, they conflict. I think that will be probably the most important job of the people who consider themselves to be followers of justice kolea. Probably it will be the new justice of the Supreme Court and how we can square our doubts about judicial capacity and our concern for constraining the courts ability to read whatever they want into the equal protection clause in our respect for the democratic process and these things sometimes complex and that is the job that all of a space in trying to carry out his legacy. Thank you. Amy wax. Thank you for having me and im glad to be here. In the paper, the chapter in which i base this talk, i addressed the role of expertise, the use of Specialized Knowledge and methodology, and Justice Scalias opinions and especially in education decisions but others too. Here is