“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

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 1^st 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.

. @NEAToday on suicide watch. https://t.co/Yjk9fy9EPm

— Nicole Solas Domestic Terrorist! (@Nicoletta0602) December 7, 2021

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.

CHIEF JUSTICE ROBERTS: Justice Sotomayor?

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?

JUSTICE ALITO: Yeah.

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.

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