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?
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.
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.