The Argument in Carson v. Makin Unexpectedly Turns To Critical Race Theory

#SCOTUS

Many of us were watching the oral argument in Carson v. Makin over the exclusion of certain religious schools from the state subsidies in Maine. A majority of conservative justices seemed to be leaning toward supporting the challengers in demanding that the state remain strictly neutral in such tuition programs. However, the moment that most struck me was an exchange between Supreme Court Justice Samuel Alito and Maine Chief Deputy Attorney General Christopher Taub where Taub appeared to acknowledge that legislatures have every right to ban critical race theory (CRT) from being taught. It is a legislative movement that is opposed by teacher unions and many Democrats.

The exchange occurred as Taub was being questioned on the meaning of “sectarian” under the law. Taub was arguing that a state has a right to demand “religious neutrality.”  Alito pushed Taub to the edges on whether it was then permissible for a school to push a curriculum that  “inculcates a purely materialistic view of life.” Taub responded that “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.”

That is when Alito and Taub had the following exchange:

ALITO: Would you say the same thing about a school that teaches critical race theory?
TAUB: Whether that school would be eligible?
ALITO: Yeah.
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.

It is well established that legislatures can dictate educational standards for schools so Taub’s answer was correct.  He also did a good job in deflecting the “what if” line of questions. However, the statement is not likely to please many in the teachers unions. Almost a dozen states (including Idaho, Oklahoma, Tennessee, Texas, Iowa, New Hampshire, South Carolina, Arizona, and North Dakota) have passed legislation to bar CRT and roughly a dozen more are considering such legislation. A coalition of educators and public interest groups has sued states like Oklahoma over such laws.

A lawsuit, filed by the American Civil Liberties Union, the Lawyers’ Committee for Civil Rights Under Law and others, argues that the Oklahoma law violates the free speech of students and teachers and discriminates against students of color, LGBTQ students and female students.  The lawsuit also says that such laws have a chilling effect on the terminology and lesson plans teachers incorporate into their instruction.

At the same time, the National Education Association (NEA) has sued a mother over her attempts to gain access to records on the teaching of CRT.

Randi Weingarten, president of the American Federation of Teachers, has pledged lawsuits to fight such laws.

In the federal system, President Biden rescinded an order used to block teaching of CRT and other systemic racism theories.  However, the Education Department dropped references recently to CRT material in a proposal but stressed “those decisions are — and will continue to be — made at the local level.” The Administration previously linked to a handbook advocating CRT lesson plans.

Maine is one of the states moving to ban CRT.  Teachers in Maine are opposing the move.

That is why Taub’s answer is so interesting in light of the state and federal litigation. The Biden Administration is supporting Maine in its argument, but it is not clear if it supports this notable part of that argument.

The case is Carson v. Makin, Docket No. 20-1088.

This column was updated to correct an error in Taub’s identification. He is the Maine Deputy Attorney General.

91 thoughts on “The Argument in Carson v. Makin Unexpectedly Turns To Critical Race Theory”

  1. What is the adjective ‘critical’ describing, race or theory?
    A race that is good at criticizing things?
    A theory about a race that is good at criticizing things?
    Help me out.

  2. The people who cause you to be angry should be considered the bad guys, not you for being made angry by them.

  3. Green Anonymous,

    Thanks for backing me up! How did you find it? I searched “CRT” and did not retrieve this article.

    Second, are you sure Darren is deleting all your comments? That is unconscionable. That definitely needs to be reported to a higher authority.

  4. It’s hilarious how white male conservatives, especially Southern-fried white male conservatives are SCARED SHITLESS that the true history of their racist state will be taught and discussed in classrooms.

    White male conservatives are also scared that institutionalized racism and social racism will be examined and discussed in local classrooms.

    But the thing white male conservatives fear the most that will be closely examined and discussed in local classrooms is their WHITE PRIVILEGE and how WHITE PRIVILEGE foments and enables institutionalized and social racism.

    WHITE MALE PRIVILEGE remains the driving force behind conservatives inability to accept defeat in U.S. elections.

    It is Donald Trump-level WHITE MALE PRIVILEGE that says, “We do not lose elections. It is impossible for us to lose elections because we are the White majority, the strongest, the fittest and most powerful of all.”

    How much more can the conservative white male take? Wokeism, progressivism, being blamed for institutionalized racism and even social racism. And now blacks are winning Senate seats in red states while a teenage Hispanic turns voting age every 60 seconds in Texas – what’s a White boy to do?

    White anger is real and that’s why white males dominate the FBI’s Domestic Terrorist list for years now, including 2021.

    See, NEW YORK TIMES: “Top Law Enforcement Officials Say the Biggest Domestic Terror Threat Comes From White Supremacists.”

    https://www.nytimes.com/2021/05/12/us/politics/domestic-terror-white-supremacists.html

    1. “Top Law Enforcement Officials Say the Biggest Domestic Terror Threat Comes From White Supremacists.”

      Do you mean people like Richard Spencer, the well-known White Nationalist who admits voting for Biden?

      “It is Donald Trump-level WHITE MALE PRIVILEGE that says, “We do not lose elections. It is impossible for us to lose elections because we are the White majority, the strongest, the fittest and most powerful of all.”

      That is your version, but not Donald Trump’s version. Trump doesn’t care if you are green. He likes people that can get things done, not pseudo-intellectuals who have difficulty keeping their shoes tied while roaming the Biden White House.

      Your words and ideas sound similar to what a racist might say. I know you oppose racism, so I wonder about your choice of words.

      Instead of talking cr-p, why don’t you put on your long pants and discuss racism? Stop making wild accusations. There are enough racists out there who are white, black, Asian, etc., so one doesn’t need to make things up.

  5. Now that even the way mathematics is taught is considered a product of white supremacy, how long will it take for the Leftists to claim facts, evidence and critical-thinking to be racist?

    1. Now that even the way mathematics is taught is considered a product of white supremacy, how long will it take for the Leftists to claim facts, evidence and critical-thinking to be racist? — OLLY

      Based on what I’ve seen here, and elsewhere, many already have… And reporting by corporate media reinforces that opinion.

    2. Math itself isn’t racist. But some people use math to support their racist goals, including in education.

      Facts, evidence, and critical-thinking aren’t racist. But racists can certainly twist all of them to support their racist goals.
      (We see this here on a daily basis, for example, in George’s comments. I don’t think I’ve ever seen you counter George’s false arguments.)

  6. Wait, wait, wait, did I hear this correctly? The teachers unions are fighting to have the allowing of a curriculum that they have previously told us didn’t exist. Remember, they said there is no such thing as Critical Race Theory. They said it wasn’t being taught but now they are fighting to be allowed to teach it. Why are they fighting to continue to teach something that not long ago they vehemently declared did not exist. Then when we find out that it does exist they try to tell us that we are to stupid to understand it. Once again they turn the gaslight down low and your not supposed to notice when the classroom slowly gets darker and darker.

    1. Supposedly, Antifa doesn’t exist either, it’s just an idea — but the San Diego County District Attorney’s office just charged 11 antifa thugs with felony conspiracy and felony assault charges, among other crimes. Once we realize that denial is the psychological fantasy that governs the Democratic mind, evrything falls into place. If it makes a Dem “uncomfortable,” just deny it exists.

  7. Return the schoolhouse to local government.

    The Department of Education is unconstitutional.

    The NEA is comprised of communists propagating antithetical communist propaganda and indoctrination.

  8. When did it become expected that it is the business of public schools to engage in the moral education of students beyond some milquetoast statements about citizenship and legal equality of all? Why have public school teachers arrogated to themselves a primary role of parents? I would note that while the moral education (ideological indoctrination) of public school students has become more controversial, the performance of public school students in hard skills (math, reading comprehension, sciences) has continued to diminish in both absolute terms and in comparison to the students of peer nations.

    To quote Bill Belichick, “Do Your Job.” And stop trying to do parents’ jobs.

    1. “…in persons of indigent fortunes, or such as are under the immediate dominion of others, all popular states have been obliged to establish certain qualifications, whereby, some who are suspected to have no will of their own, are excluded from voting:…”
      ___________________________________

      “It’s the [vote], stupid!”

      – James Carville
      _____________

      If you allow nuts to vote, you get a nutty education system.

      The vote is bought.

      If you allow radical, extremist, dependent, illegal alien parasites to vote, you get a stolen election.

      45% of Americans pay NO taxes yet vote like crazy – no, literally, like crazy – everyone who receives a paycheck, welfare or benefit check from the government must never be allowed to vote.

      America was established as a restricted-vote republic; turnout was 11.6% in 1788.

      There is absolutely NO hope for a country that allows every person to vote because one man, one vote “democracy” is, in fact, lunacy generating a commensurate result, and, ultimately, self destructive and self terminating.

      The lunatics have been granted the vote and the lunatics have taken over America, fundamentally transforming it into the asylum.
      ______________________________________________________________________________________________________

      “the people are nothing but a great beast…

      I have learned to hold popular opinion of no value.”

      – Alexander Hamilton
      _________________

      “The true reason (says Blackstone) of requiring any qualification, with regard to property in voters, is to exclude such persons, as are in so mean a situation, that they are esteemed to have no will of their own.”

      “If it were probable that every man would give his vote freely, and without influence of any kind, then, upon the true theory and genuine principles of liberty, every member of the community, however poor, should have a vote… But since that can hardly be expected, in persons of indigent fortunes, or such as are under the immediate dominion of others, all popular states have been obliged to establish certain qualifications, whereby, some who are suspected to have no will of their own, are excluded from voting; in order to set other individuals, whose wills may be supposed independent, more thoroughly upon a level with each other.”

      – Alexander Hamilton, The Farmer Refuted, 1775

    2. School days, school days
      Dear old golden rule days
      Reading and writing’ and rithmetic
      Taught to the tune of the hickory stick
      You were my queen in calico
      I was your bashful barefoot beau
      And you wrote on my slate, “I love you, Joe”
      When we were a couple of kids

      School days, school days
      Dear old golden rule days
      Reading and writing’ and rithmetic
      Taught to the tune of the hickory stick
      You were my queen in calico
      I was your bashful barefoot beau
      And you wrote on my slate, “I love you, Joe”
      When we were a couple of kids”

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