The problem with Bolling is that the Court read an "equal protection component" into the Due Process Clause of the 5th Amendment. It is kind of a reverse incorporation doctrine based upon the Court's view that it would be "unthinkable" not to strike down racial segregation in the public schools of the District of Columbia.
Actually, there is a way the Court might have used the Due Process Clause to strike down laws requiring racially segregated public schools without having to judicially amend the 5th Amendment. Why not use a real rational basis test and hold that racial segregation fails rational basis review because these laws are arbitrary and lack any legitimate governmental interest. I think the post-New-Deal Court was so afraid of Lochner that it created a rational basis test that was not a test at all. Due Process should be understood--not as creating fundamental rights based upon the Court's policy preferences--but rather as requiring all laws to have a real, rational, logical, non-arbitrary basis in law.
Thus, since laws mandating racial segregation are totally irrational and based upon arbitrary beliefs about racial castes, they fail ordinary due process rationality review. Does anyone believe that laws segregating public education are based upon a legitimate governmental interest?
What are your thoughts? Is this approach to Due Process persuasive? Notice it would not be a special rule about race or equal protection; it would require all laws to have a real rational basis if they are to be enforced against a free people. Is this persuasive?
Let's talk about this when we get back together after Spring Break.
For a critique of the toothless rational basis test, see this short argument presented by the Institute For Justice.
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