Is the U.S. Constitution colorblind?


Is the U.S. Constitution colorblind?
Revisiting the meaning of the Supreme Court’s Brown v. Board of Education decision through the lens of Justice Scalia’s rulings

June 15, 2017—At a time of heightened racial tension and renewed debate over the role of the Department of Education’s Office for Civil Rights, a thorough understanding of the landmark 1954 decision in Brown v. Board of Education is as important as ever. Does the U.S. Constitution permit race-related admission decisions for universities and school districts seeking to promote integration, or is the Constitution colorblind? In this forum, Shep Melnick of Boston College and James Ryan of the Harvard Graduate School of Education examine this issue through the lens of the late Supreme Court justice Antonin Scalia’s education rulings.

R. Shep Melnick profiles Justice Scalia as a committed originalist who sought to interpret and apply Constitutional language as its authors intended. “The primary purpose of originalism,” Melnick writes, “is to dissuade judges from reading their personal understandings of what is fair, good, and just into the vague phrases of the Constitution.” While Scalia believed that the Thirteenth and Fourteenth Amendments, taken together, present a clear case for banning legally segregated schools, he believed that they also invalidate treating people differently based on race. In two 1992 cases, Freeman v. Pitt and U.S. v. Fordice, he questioned the Constitutionality of busing efforts designed to balance schools’ racial composition and emphasized the inherent dangers in giving public officials the authority to classify citizens by race, even if they claim to do so “for ‘benign’ purposes.”

James E. Ryan, however, questions Scalia’s dedication to originalism, citing three cases in which he believes the late justice ruled based on personal preference. Ryan notes that Scalia made no effort to refute scholarly arguments that Fourteenth Amendment, as originally understood, permitted race-based policies, and that Scalia’s decisions in these cases contradicted prior Supreme Court rulings. In Grutter v. Bollinger (2003), for example, Scalia broke with precedent to claim that “the Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.” Ryan contends that the “whole thrust of Brown was that segregation was actually harmful to students, not that the use of race itself was always and everywhere to be rejected.”

To receive an embargoed copy of “ the Constitution Colorblind? Debating Antonin Scalia’s record on race and education” or to speak with the authors, please contact Jackie Kerstetter at The article will be available Tuesday, June 20 on and will appear in the Fall 2017 issue of Education Next, available in print on August 30, 2017.

About the Authors: R. Shep Melnick is Thomas P. O’Neill, Jr., Professor of American Politics at Boston College. James E. Ryan is the dean of the Harvard Graduate School of Education.

About Education Next: Education Next is a scholarly journal committed to careful examination of evidence relating to school reform, published by the Hoover Institution at Stanford University and the Harvard Program on Education Policy and Governance at the Harvard Kennedy School. For more information, please visit

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