Alito Raises Critical Race Theory in Supreme Court Argument over Maine

Samuel Alito (Erin Schaff-Pool / Getty)
Erin Schaff-Pool / Getty

Supreme Court Justice Samuel Alito raised the issue of Critical Race Theory during oral arguments in the case of Carson v. Makin, which tests a Maine law that provides subsidies for parents to send children to school, except “sectarian” schools.

The existing law provides that the subsidy can only be used for tuition in a school if that school is “a nonsectarian school in accordance with the First Amendment of the United States Constitution.”

During oral argument, the justices questioned Chief Deputy Attorney General Christopher Taub about the meaning of the word “sectarian” (as opposed to “religious”) and about whether there were any other restrictions on the use of state funding to provide subsidies or vouchers to hypothetical schools.

Taub argued the law should be upheld because the state government of Maine is allowed to promote “religious neutrality.” Alito questioned that premise, and asked whether the state could fund a school that “inculcates a purely materialistic view of life. Taub admitted: “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.”

Taub also admitted that the current law would not prevent such schools from being funded, but 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.”

Alito then asked whether a school that taught religious tolerance would be ineligible, since it was a belief that involved religion. Justice Elena Kagan then asked whether Taub was confident that a school that taught white supremacy would never be funded; Taub reiterated that he was certain the legislature would act in that situation.

The following exchange then took place:

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.

As Breitbart News has explained for nearly a decade, Critical Race Theory is the belief that race is fundamental to American society, and that white supremacy is deeply ingrained in American institutions, including the Constitution. As such, efforts to establish legal racial equality cannot possibly eliminate racism.

Only transforming American society itself, possibly through the addition of socioeconomic rights to the Constitution, can the U.S. redeem itself from the original sin of white supremacy.

The plaintiffs are a pair of parents in Maine, as their petition to the Supreme Court explained:

Both families live in a school district that neither operates a public secondary school nor contracts with a particular secondary school for the education of its resident secondary students. Accordingly, the Carsons and Nelsons are entitled to the tuition assistance benefit. Because of the sectarian exclusion, however, neither family can use the benefit at the school they believe is best for their child.

The First Circuit upheld Maine’s law.

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

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.

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