Critical race theory made its way into the Supreme Court Wednesday as the justices questioned attorneys on what kinds of value-based instruction in schools are allowed to be publicly funded under a Maine voucher program that is under review.
The case, Carson v. Makin, centers on a Maine program that provides families living in areas with limited access to public schools the opportunity to use a funding voucher at a private school and will determine whether or not that program must be made available to parents who intend to use them at religious schools that teach religion.
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The plaintiffs in the case, a Maine family, argue that by excluding religious schools from the voucher program, the state is actively discriminating against religion. Michael Bindas, an attorney for the nonprofit legal group Institute for Justice, argued the case on behalf of the plaintiffs.
Justice Samuel Alito mentioned critical race theory, which teaches that American institutions and culture are systemically racist, while the justices were questioning Maine deputy chief attorney general Christopher Taub on whether or not the state’s voucher program could be used to pay for instruction at a hypothetical school that pushed materials that were secular but offensive.
What qualifies as acceptable instruction under the law was of particular interest during the court’s questioning of Taub, who said “a way would be found” to ensure that a “white supremacist school” would not receive public funding.
“Would you say the same about a school that teaches critical race theory?” Alito asked Taub.
“I don’t know what exactly it means to teach critical race theory,” Taub responded. “So, I think the Maine Legislature would have to look at what that actually means. But ... if teaching critical race theory is antithetical to a public education, then the Legislature would likely address that.”
Several justices, including Chief Justice John Roberts, grilled Taub on the application of the program, hinting that the state’s application could be considered discriminatory after Taub conceded that a religiously affiliated school could receive funding under the state’s program if its religious tenets did not require it to teach religion.
“It is the beliefs of the two religions that determines whether or not their schools are going to get the funds or not,” Roberts said. “We have said that is the most basic violation of the First Amendment religion clauses, for the government to draw distinctions based on their religions based on their doctrine.”
Bindas, arguing on behalf of the plaintiffs, repeatedly brought up parental rights as the primary issue in the case, noting that the program specifically gives parents the discretion to choose the school their child would attend.
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“Not a penny flows to any school but for the private and independent choice of families,” Bindas said in response to a question from Justice Amy Coney Barrett.