Critical Race Theory Brought Up as Supreme Court Justices Weigh Religious School Aid Case

By Bill Pan
Bill Pan
Bill Pan
Reporter
December 9, 2021 Updated: December 9, 2021

The issue of critical race theory was raised during a Supreme Court oral argument on Dec. 8, when Justice Samuel Alito asked the lawyer defending the state of Maine if the state’s tuition assistance program, which excludes Christian high schools, can also deny participation of schools promulgating beliefs that are clearly against the purpose of public education.

The argument being heard by the high court centers around a system that Maine uses to ensure that all children in the state have free access to K–12 education. Under the system, a public school district that doesn’t have its own secondary school may either contract with a private secondary school or pay the tuition of the private school of a student’s choice. In either case, the participating private school must be “nonsectarian,” meaning that it can’t provide religious instruction.

The Carsons and Nelsons live in districts that don’t operate a public secondary school of their own. The families tried to utilize the tuition assistance program to send their children to Christian schools that “align with their sincerely held religious beliefs,” but were denied because of the “nonsectarian” requirement.

In another school aid case, Espinoza v. Montana Department of Revenue, the Supreme Court ruled in a 5–4 decision that states aren’t obliged to subsidize private education but if they do, they must not exclude a school from participating just because of its religious status. Christopher Taub, the lawyer defending Maine’s exclusion of sectarian schools, however, argued that the state doesn’t exclude schools based on mere religious affiliation, but based on whether they are “instilling religious beliefs in children.”

When asked by Alito whether it’s OK for a school that “inculcates a purely materialistic view of life” to participate in Maine’s tuition assistance program, Taub admitted that “there are other aspects of what a school could do that would be inconsistent with a public education.”

“Now, it’s possible that, down the road, some school might pop up that is teaching something else, not religion but something else, say, Marxism or Leninism or white supremacy,” Taub said. “Clearly, those kinds of schools would be doing something completely inconsistent with a public education.”

When Alito asked whether the current system prohibits a parent from getting funding to send a child to one of those schools, Taub replied that it would be a matter for Maine’s Legislature to address.

Taub then was questioned by Justice Elena Kagan, who asked him if he was “confident” that a nonreligious school would also be denied participation because of teaching white supremacy. The lawyer argued it is “unfair” to expect the lawmakers to consider “every hypothetical outlandish situation,” but said there “would be a way” to ensure that such a school is excluded from the program.

“Would you say the same thing about a school that teaches critical race theory?” Alito asked.

“I don’t really know exactly what it means to teach critical race theory,” Taub said. “So I think the Maine Legislature would have to look at what that actually means.”

“But I will say this, that if teaching critical race theory is antithetical to a public education, then the Legislature would likely address that.”

An outgrowth of Marxism, critical race theory (CRT) interprets society through a Marxist dichotomy between “oppressor” and “oppressed,” but replaces the class categories with racial groups. Proponents of CRT see deeply embedded racism in all aspects of U.S. society, including in neutral systems such as constitutional law and standardized tests, and deem it to be the root cause of “racial inequity,” or different outcomes for different races.

In Maine, the Republican minority of the Legislature has been trying to prohibit the incorporation of CRT in public schools. A bill introduced in 2019 would ban public school teachers from engaging in “political, religious, or ideological advocacy” in the classroom, segregating students according to race, or “singling out one racial group of students as responsible for the suffering or inequities experienced by another racial group of students,” with penalties for violations up to and including termination of the teacher.

The same bill was reintroduced in February.

Bill Pan
Reporter