Image 01 Image 03

“Critical Race Theory” Becomes Issue During Supreme Court Argument In Maine School Funding Case

“Critical Race Theory” Becomes Issue During Supreme Court Argument In Maine School Funding Case

Justice Alito: If Maine refuses to fund students to attend schools that teach white supremacy, “would you say the same thing about a school that teaches critical race theory?” -- Public Domain

On Wednesday, December 8, 2021, the U.S. Supreme Court heard oral arguments in a case challenging a Maine policy which provides state funds for students who do not have a local public secondary school to attend private school, but not private religious school. The funds go to the students, not directly to the schools.

The case is Carson v. Makin (Docket for 20-1088) You can listen to the oral argument audio, and read the argument transcript.

Here’s how Scotusblog described the issues in the case issues and background:

The dispute, Carson v. Makin, centers on the system that Maine uses to ensure that all school-aged children in the state have an opportunity to receive a free public education. With fewer than 180,000 students in kindergarten through 12th grade, distributed over 260 school districts, not all school districts operate their own secondary schools. Instead, some districts make arrangements with specific private schools or other public schools to take their students. And other school districts allow their students to choose their own public or private school and pay their tuition. However, the Maine program only allows tuition payments to go to private schools that are “nonsectarian” – that is, schools that do not provide religious instruction.

The plaintiffs in the case are two sets of parents who live in districts that do not operate their own secondary schools. As a result, their children were eligible to receive tuition assistance to attend private schools approved by the state. David and Amy Carson sent their daughter to Bangor Christian, in the city of Bangor, “because the school’s Christian worldview aligns with their sincerely held religious beliefs.” Troy and Angela Nelson would like to send their son to Temple Academy, a Christian school in Waterville, but can’t afford it without tuition-assistance payments.

After the Supreme Court’s 2017 ruling in Trinity Lutheran Church of Columbia v. Comer, holding that the Constitution’s free exercise clause barred the government from denying the church a benefit that is otherwise available to the public just because of the church’s religious status, the Carsons and the Nelsons went to federal court. They argued that the exclusion of religious schools from Maine’s tuition-assistance program likewise violates the free exercise clause.

While the parents’ case was pending, the Supreme Court issued its decision in another school-funding case, Espinoza v. Montana Department of Revenue. By a vote of 5-4, the justices ruled in June 2020 that although states are not required to subsidize private education, they cannot exclude families or schools from participating in programs to provide public funding for private schools because of a school’s religious status. The court left open the question whether the state could exclude families or schools from the program because the money would be used for religious purposes at school.

In a decision in October 2020, the U.S. Court of Appeals for the 1st Circuit (with a panel that included retired Justice David Souter) rejected the parents’ challenge to the Maine program. It held that unlike the religious exclusions in Trinity Lutheran and Espinoza, the Maine law “does not bar schools from receiving funding simply based on their religious identity.” Instead, the court of appeals explained, the exclusion examines “what the school teaches through its curriculum and related activities,” and the law prohibits schools from receiving funding because of the “religious use” to which they would put the funds. The law, the court of appeals concluded, “merely reflects Maine’s refusal to subsidize religious exercise.”

Teachers Unions feared the case would open the floodgates to shifting money away from the public systems the unions milk and control to alternatives.

Their fears of a loss seemed justified today at oral argument.

There certainly seems to be a conservative majority, maybe even all six, to rule consistently with prior cases that all other things being equal, religion must not receive discriminatory treatment. It’s a theme we also saw in pandemic shut down cases, where SCOTUS overturned more harsh treatment of churches as compared to similarly situated secular establishments.

The effervescent Ian Millhiser at Vox sounded the alarm:

At an oral argument held Wednesday morning, all six members of the Supreme Court’s Republican-appointed majority appeared likely to blow a significant new hole in the wall separating church and state….

All six of the Court’s Republican appointees appeared to think that this exclusion for religious schools is unconstitutional — meaning that Maine would be required to pay for tuition at pervasively religious schools. Notably, that could include schools that espouse hateful worldviews….

On Wednesday, however, several members of the Court’s Republican-appointed majority questioned whether religious neutrality is even possible, and suggested that Maine’s efforts to remain neutral on questions of religion are themselves a form of discrimination against people of faith.

Chief Justice John Roberts, for example, proposed a hypothetical involving two private schools. One of these schools teaches its religious beliefs openly and explicitly, and it also teaches a particular set of religious values in the process. The other school might eschew explicit references to God or to a holy text, but it teaches a different value system that is motivated by religious beliefs. If the state funds the latter school but not the former one, Roberts asked, why is it not drawing “distinctions based on doctrine”? …

Justice Brett Kavanaugh, meanwhile, offered the most direct version of this argument that neutrality toward religion is the same thing as discrimination. “Discriminating against all religions” is still unlawful discrimination, Kavanaugh told Taub — a position that is difficult to square with the text of the First Amendment, which prohibits laws “respecting an establishment of religion.”

Millhiser also noted a line of questioning by Justice Alito that caught my attention when listening to the oral argument, the unexpected appearance of “Critical Race Theory” into the debate:

Justice Samuel Alito, meanwhile, offered the Fox News version of Roberts’s argument. Maine’s law, Alito noted, does not contain explicit exemptions for private schools that teach white supremacy or critical race theory, but it does explicitly exempt religious schools from its tuition program. The implication was that Maine is discriminating against religion and in favor of critical race theory.

Millhiser has it partially right. The full exchange that led to Alito mentioning Critical Race Theory is below.

Two important things: First, that Critical Race Theory even was raised shows how deeply the political argument over CRT has penetrated — it’s now being debated in Supreme Court arguments that do not, on their face, seem to involve CRT. Second, Alito implicitly equated teaching CRT to teaching white supremacy, and challenged the state to explain why the state could deny funds to students who attend schools that teach white supremacy while funding attendance at schools that teach CRT. The state didn’t have a good answer, or really any answer, other than it’s something the legislature would have to consider.

I get the feeling from the questioning that Alito may be writing the majority decision, and if he makes that analogy in a majority opinion, well, that would be something, wouldn’t it?

Here’s the exchange from pages 74-78 of the transcript (emphasis added):

JUSTICE ALITO: Well, on that point, suppose a school inculcates a purely materialistic view of life. Would that be — would that be okay?

MR. TAUB: So, I mean, this is something that we — that we’ve thought about, and I think there — there are other aspects of — of what a school could do that would be inconsistent with a public education. Now what the Maine legislature had in front of it was it had a set of — of sectarian schools and it had a set of secular schools, and — and the one thing that the legislature knew is that it did not want to have schools that inculcate religion as part of the public education program. Now it’s possible that, you know, down the road some school might pop up that is teaching something else, not religion but something else, say, Marxism or  Leninism or, you know, white supremacy. Clearly, those kinds of schools would be doing something completely inconsistent with a public education.

JUSTICE ALITO: But, as of now, that would not prohibit a parent from getting funding to send a child to one of those schools?

MR. TAUB: So, be — be — because those are hypothetical situations that the legislature has never had to confront, it hasn’t addressed that in the legislation. But there’s no doubt, Your Honor, that if a white supremacy school tried to participate in Maine’s program, the legislature would swiftly act to say, no, you know, beyond being religiously neutral, you also can’t teach principles of — of — of hatred.

JUSTICE ALITO: I understand that. But, as of now, the only thing that you want to make sure that the schools that are covered by this cannot do is that they can’t inculcate religion —

MR. TAUB: Yeah, I mean — I mean —

JUSTICE ALITO: — even if it’s — you know, even if it’s a religion that promotes tolerance of all religious beliefs, if it’s religiously based, no?

MR. TAUB: Again, I mean, I don’t want to quibble with — with words, but it’s not just that it’s religiously based. It’s that it’s instilling religion in the children who attend that. And — and that is because that is the defining characteristic and I think this Courthas recognized that that’s a defining characteristic of a public education. And so — so that is the thing that the legislature has controlled for because that’s what actually exists on the ground. We actually have schools that instill religious beliefs. We — we don’t have schools that are instilling Leninism or white supremacy.


JUSTICE KAGAN: But just to follow up on that point, you’re confident that that would — that kind of school would not be fundedbecause — a white supremacist school, because it’s outside the bounds of your program, is that right?

MR. TAUB: I mean, yes, Your Honor. I — I think it’s — it’s — it’s unfair for — for the — for a legislature to be expected to legislate against every hypothetical outlandish situation that could come forward. So it’s incredibly unlikely that we would ever have a white supremacy school applying to become part of our public school program. But knowing what I know about Maine and our legislature, that school would — there — a way would be found to ensure that that school is not allowed to participate.


JUSTICE ALITO: Would you say the same thing about a school that teaches critical race theory?

MR. TAUB: Whether that school would be eligible?


MR. TAUB: So I think that that is something that the legislature would have to look at. I mean, that one’s closer because, frankly, I don’t — I don’t really know exactly what it means to teach critical race theory. So I think — I think the Maine legislature would have to look at what that actually means. But — but I — I will say this, that — that if — that — that if teaching critical race theory is — is — is antithetical to a public education, then the legislature would likely address that.

I don’t make predictions. But someone should check in on the teachers union heads in a few months to make sure they are okay.


Donations tax deductible
to the full extent allowed by law.


Critical Racists’ Theory presume diversity [dogma].

White supremacy a.k.a. color supremacy a.k.a. rabid diversity [dogma] (i.e. color judgment, class-based bigotry).

That said, diversity of individuals, minority of one. #HateLovesAbortion

    DB523 in reply to n.n. | December 9, 2021 at 9:43 am

    Dear n.n.
    Could you please expand on your comment a bit?
    It is very Hemingway style, so economical with context that I am having trouble making the leaps, older person here.
    I think I might enjoy, possibly agree, with your idea… but your presentation is so genericized that I can not quite grasp your comment.

      henrybowman in reply to DB523. | December 9, 2021 at 11:18 am

      If you ever figure it out, please let the rest of us know.

      JohnSmith100 in reply to DB523. | December 9, 2021 at 3:50 pm

      Sometimes it is necessary, even here, to speak obliquely. Many people object to brutal unvarnished truth about merit or lack of merit of different peoples and culture’s.. They are not all equal, and it is heresy to openly talk about those which are mostly meritless.

CuriousJustice | December 8, 2021 at 9:48 pm

Taking advantage of the quality generated by the competitive market process is the best way to insure as many students as possible receive a high-quality education. There are also the benefits of the market being able to address a variety of niche demands, supplying everything from vocational focused school to accelerated advanced programs.

But instead, the teachers want to gang up in their unions so they can receive above-market pay, inject their ideology into the curriculum, lower standards, and inject their one-size fits all approach to the point where vocational high school study has been effectively outlawed and now California wants to ban calculus.

    inject their ideology into the curriculum
    Because they’ve, for the most part, been steeped in progressivism, and it is a religion that demands compliance from all, regardless of individual beliefs.

It was inevitable that government schools would be unionized — Big Labor loves forcing people to pay for their livelihoods regardless of reciprocal benefit, or lack thereof.

These restrictions are commonly grouped under the name “Blaine Amendments.” They were established in many states in the mid 19th century as anti-Catholic-immigrant legislation, often through the machinations of the Know-Nothing Party.
Over the past 20 years, they have been attacked in a number of states in which school voucher systems have been successfully established. I may be mistaken, but I believe that in this period, in every state where they have been challenged, they have fallen.
Personally, I don’t see that SCOTUS will be looking to stick their necks out to buck this trend. I predict Maine’s will fall as well.

    You are 100% correct. The bigoted Blain amendments and legislation were dealt a death blow in August 2020 by the SCOTUS decision in Espinoza vs. Montana. It only took over 100 years.

    Now it just has to be smacked down one state at a time. It’s Maine’s turn.

      george in reply to gibbie. | December 9, 2021 at 1:57 pm

      As an important aside, the Blaine Amendments were in response to the Vatican’s edicts between 1860 and 1870 emphasizing both the Pope’s primacy and infallibility. This was to counter the growing “liberal” movement of governing to republics. This “Infallability” concept was not changed until 1960.

      SDN in reply to gibbie. | December 9, 2021 at 2:10 pm

      Appropriate, since Blaine was from Maine, as his opponents pointed out when he ran against Grover Cleveland:

      “Blaine, Blaine, James G. Blaine,
      The Continental liar from the state of Maine.”

Dear Professor Jacobson,
Thank you for being the “someone” who does check in on “the heads”…. and giving me a clean synopsis of said heads… minus emotional static.
Truth be told, I have a visceral terror of “checking” said heads, like watching a Hitchcock film just before bed.
You are a brave and sturdy warrior.

VOX: “…wall separating church and state….”

Correct me if I’m wrong, but there is no “separation of church and state” in the Constitution. That phrase comes from a letter penned by Thomas Jefferson to the Danbury Baptist Association.

Thus this wouldn’t be under consideration by the SCOTUS. Seems the VOX article is “misinformation”. 😉

it’s now being debated in Supreme Court arguments that do not, on their face, seem to involve CRT
Maybe not on its face, but “CRT” is part of progressivism, which IS a religion. It’s not like a religion. It IS a religion. And all of the discrimination against Christianity and Judaism (which are really the only discrimination ever heavily levied) has always been in favor of a religion of progressivism – a perversion of Christianity to place man’s reason in place of God, but otherwise to bring a Christian-lite utopia to the world.

    Milhouse in reply to GWB. | December 9, 2021 at 10:48 am

    No, it isn’t a religion. It functions exactly like a religion, and should be treated the same way, but a religion requires at least one god.

      And they have one: Reason.
      Yes, it IS a god. It is simultaneously a god of Self and a worship of ‘experts’ (the ultimate expression of Reason).

      “Secularism” is not a condition of godlessness. It is a condition of SELF-worship. But one of the greatest coups of progressivism is defining “religion” as “sitting in a Christian/Jewish/Islamic church on Friday/Saturday/Sunday.” So they can self-righteously declare themselves free of all that ‘superstition’.

      henrybowman in reply to Milhouse. | December 9, 2021 at 11:23 am

      No… that depends entirely on what head of the government hydra you are battling.

      The test under Title VII’s definition of religion is whether the beliefs are, in the individual’s “own scheme of things, religious.”[8] Belief in God or gods is not necessary; nontheistic beliefs can also be religious for purposes of the Title VII exemption as long as they “‘occupy in the life of that individual “a place parallel to that filled by . . . God” in traditionally religious persons.’”[9] The non-discrimination provisions of the statute also protect employees who do not possess religious beliefs or engage in religious practices.[10]

      And theirs is the State. It has all the other hallmarks.

      Voyager in reply to Milhouse. | December 9, 2021 at 3:37 pm

      I’m not sure that is actually true. Confucianism, for example, is considered a religion, but has no interest in gods.

      It’s easy to see religion through a judeo-christian lense, but the scope of human faith is much bigger and much weirder than just that.

      Arminius in reply to Milhouse. | December 9, 2021 at 11:25 pm

      A lot of Buddhists are going to be stunned by you declaring they don’t have a religion since Buddhism doesn’t have nor requires a god.

      Semper Why in reply to Milhouse. | December 10, 2021 at 8:41 am

      I have a couple of crunchy friends who believe in crystal power, lay lines and worship trees as elder repositories of knowledge and wisdom. They don’t worship gods. It absolutely is a religion.

“Discriminating against all religions” is still unlawful discrimination, Kavanaugh told Taub — a position that is difficult to square with the text of the First Amendment, which prohibits laws “respecting an establishment of religion.”

How are these at all difficult to square with each other? I suspect Ian Milhiser has a very weird understanding of the phrase “respecting an establishment of religion.” Not only does he not seem to understand what “an establishment of religion” means, I suspect he also doesn’t understand the word “respecting”, and thinks it has something to do with Aretha Franklin.

    He is a progressive, Milhouse. So, yes, he is fooled into thinking what a religion IS, and whether or not he practices one.

      Milhouse in reply to GWB. | December 9, 2021 at 2:53 pm

      No, his error is not in the definition of “religion”. There’s something fundamentally wrong in his understanding of the establishment clause, and it’s not in the word “religion”. Like many people he seems to have no idea what “an establishment of religion” means. But his peculiar phrasing seems to me to indicate that he also misunderstands “respecting”, and thinks it has something to do with a feeling of respect, as in R-E-S-P-E-C-T.

    gibbie in reply to Milhouse. | December 9, 2021 at 1:23 pm

    Milhouse, This is the crux of the matter. Thank you.

    Many people, including SCOTUS in past decisions, seem to have difficulty with basic reading comprehension. And history.

I always find these religious school debates to be a difference without a distinction.

Many of my professional colleagues from India were sent to Catholic schools to get a good education. It’s what you do in India to get a superior education. Their Hindu parents had managed to overcome the fear of indoctrination.

Living in Maine, I came first hand with the ‘doctrine’ of Separating Church & State and the extensive support given the schools run by various religions. Without them there would have been no govt. run high schools; nor would they lack their quality as measured by scores, college acceptance, and both student and parent approval,

There have been some lasting religious conversions; but for the most part, the curriculum is mostly secular. There is plenty of research on how few Jews are ‘converted’ in Catholic schools. On the other hand, busy parents with a non-secular orientation, appreciate the atmosphere and culture.

The biggest problem in the government run schools now is bullying, racial taunts, and even racial imperialism as black male students oppress white and Asian female students.

Enabling parents to choose from either public or private school and have both compete against other is one major benefit of a market -driven economy; since it enables schools to specialize and compete for say a STEM or sports oriented student.

Until you’ve listened to the many reasons why a student would choose a particular school, you realize a public school’s comprehensive curriculum is anything but.

During the 1920’s and 1930’s New York schools became a meritocracy to reflect the many cultures and religious posed by immigrants. I went to an elementary school in Astoria(Queens) with over a dozen different cultures, languages, etc.

Common tests were given so that each group could fairly compete, and advancement continued up to the Nation’s first specialized high schools–art, science and other topics provided incentive for every race, etc. to succeed. Eventually, this specialized was demonstrated in specialized colleges of higher education with world class status, Baruch business school CCNY, Columbia U., Rockefeller U., and the New York City College system.

A meritocracy and subsidized systems of choice yield excellence!

“The law, the court of appeals concluded, “merely reflects Maine’s refusal to subsidize religious exercise.”

Odd how that same privilege of ‘refusal to subsidize’ a tacitly anti-religious government enforcing viewpoint discrimination is not extended to tax payers.

I listened to the audio (twice). I was impressed by the Justices (on all sides) as they posed inquiries aimed at getting to the heart of the matter, isolating the particular legal question in the case.

What struck me most was how many times the “arbitrary decision by someone in Augusta” played a role in how funding was approved or disapproved. It appeared the Justices didn’t like that.

I’m not at all certain how they will decide this case, but I’m looking forward to their comments on how a supposedly impartial panel rides a knife’s edge to determine what is or is not educational indoctrination, religion notwithstanding.

In his ineptness, Maine’s Chief Deputy Attorney General Christopher C. Taub reminded me of the time that “Obama’s” criminal general, Eric Holder, appeared before the Senate Judiciary Committee, on the matter of how enemy combatants seized on the battlefield were to be tried (in civilian courts or military tribunals). CG Holder, who knew nothing of the laws on the subject, and had refused to prepare himself for a grilling, thought the federal government could just make it up as it went.

Sen. Lindsay Graham, a longtime member of the Army’s JAG corps, patiently explained to him that it doesn’t work that way, and that a decision has to be made in advance of the seizures.

Like Holder, Taub thought Maine officials could just do as they pleased, with no recourse to law, precedent, or constitutional principles, and even at the end of Justice Alito’s grilling, he didn’t didn’t seem to understand the issue.