Creationism, Education, and the Law A Review of Judicial Decisions Regarding Teaching Evolution and Creationism in Public Schools

Creationism, Education, and the Law Candidates for Arkansas state offices have recently revealed their views about teaching Intelligent Design in public schools... ... and many of them are for it.

Arkansas Politicians Speak Out "I believe in intelligent design and I don't think intelligent design and evolution are mutually exclusive. I think both information about intelligent design and evolution should be available to Arkansas school students. I believe both should be available because one is the consensus theory of the scientific community, and the other is the predominant belief of most Arkansans and Americans. This would provide Arkansas students background they need to wrestle with these and other fundamental questions as they become adults.” --Arkansas Attorney General and Democratic gubernatorial candidate Mike Beebe To his credity, Beebe acknowledges that the law prohibits teaching such topics “at this time.”

Arkansas Politicians Speak Out “Asa sees this as an issue of academic freedom, and he believes teachers should have the option to teach another viewpoint if there is scientific support for that viewpoint,” said David Kinkade, a spokesman for Republican gubernatorial candidate Asa Hutchinson of Little Rock. This begs the question: what if there is no scientific support? Asa probably didn't consider that.

Arkansas Politicians Speak Out “That bill is pretty lightweight. It wasn’t mandatory, it was a voluntary thing,” said Republican Representative Mark Martin of a 2005 bill he sponsored. “All it really did was have the Arkansas Department of Education establish a constitutionally valid method for [intelligent design] to be presented.” “And then allowed the teachers to teach it if they chose to.” How Martin expect the Dept. of Education to establish such impossible oxymoronic guidelines has yet to be explained. Martin says he’ll introduce similar legislation when the legislative session begins in January.

Arkansas Politicians Speak Out Late last month, the leader the Arkansas Republican Assembly (a.k.a. “the Republican wing of the Republican Party”), wrote an e-mail saying “evolution is seriously flawed and insufficient to account for origins.” He further offered intelligent design as “an intelligent alternative to evolution.” Just who is this masked man? Why, it's our old friend, Pat Briney...

Arkansas Politicians Speak Out State Senator Jim Holt, who is running for lieutenant governor, has introduced pro-creationist legislation in the past. He says that teachers should have the option to teach about intelligent design and that students should have the option to learn about it. He called evolution “a fraud theory” and said that keeping intelligent design out of public schools is censorship. “It is not scientific to censor other theories or hypotheses,” Holt said.

Arkansas Politicians Speak Out Republican candidate for attorney general Gunner DeLay reports that he wrote a paper in law school on what he says is a teacher’s “right to academic freedom” under the First Amendment to the U.S. Constitution to teach subjects that are “scientifically valid,” including, he claims, intelligent design. “The basis of my paper was that although legislative mandated efforts to teach creation science or intelligent design have been struck down, the courts have left open teaching those theories under an instructor’s First Amendment right to academic freedom,” DeLay said.

Arkansas Politicians Speak Out DeLay claims there is a difference between intelligent design and creationism. Creationism, he says, teaches that “the universe, the earth, the sun, the solar system were all created by the hand of God,” while Intelligent Design teaches the “scientific evidence of instantaneous creation.” “I think the door is open,” DeLay said. “If a teacher was interested in making that course of instruction available to his or her students, I think they could at least refer them to the proper resource... without getting into legal trouble.” This “academic freedom” argument was responsible for a number of anti-evolution bills across the country over the past year.

Creation, Education, and Legislation There have been numerous judicial cases analyzing the legality of mandating the teaching of creationism and prohibiting the teaching of evolution.

The Scopes Monkey Trial In 1925, the Tennessee General Assembly passed the Butler Act, which in part stated "... that it shall be unlawful for any teacher in any of the Universities, Normals and all other public schools of the State which are supported in whole or in part by the public school funds of the State, to teach any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals."

The Scopes Monkey Trial The ACLU offered to defend anyone accused of teaching evolution. Local mine owner George Rappleyea convinced local businesses to support a challenge of the Butler Act and convinced Scopes to stand trial. The textbook approved for use in Tennessee school included a section on evolution. Although Scopes could not recall whether he taught that section, he accepted the charges against him on May 5, 1925 and was indicted on May 25.

The Scopes Monkey Trial Although the original strategy outlined by the ACLU was grounded in the idea of separation of church and state, Darrow instead argued that evolution is not in conflict with a non-literal interpretation of the Bible. This resulted in a very unorthodox occurrence: after Bryan presented himself as an expert on the Bible, Darrow called the prosecutor to the stand as a witness for the defense.

The Scopes Monkey Trial With very little expert testimony, and despite a moving argument from defense co-counsel Dudley Malone, Darrow told the jury that he could not ask them to return a verdict of not guilty. The jury agreed, despite having never heard evidence that Scopes actually taught evolutionary theory. Judge John Raulston ordered Scopes to pay a $100 fine. Bryan offered to pay the fine.

The Scopes Monkey Trial The defense appealed to the Tennessee Supreme Court. They first argued that the Butler Act was too vague to be enforced because “evolution” is a broad term. The court rejected this argument.

The Scopes Monkey Trial The defense argued that the Butler Act violated Scopes's rights under the Due Process Clause. The court rejected this argument, stating, "He was an employee of the state of Tennessee or of a municipal agency of the state. He was under contract with the state to work in an institution of the state. He had no right or privilege to serve the state except upon such terms as the state prescribed. His liberty, his privilege, his immunity to teach and proclaim the theory of evolution, elsewhere than in the service of the state, was in no wise touched by this law."

The Scopes Monkey Trial The defense argued that the Butler Act was contrary to the Tennessee constitution, which stated: "It shall be the duty of the General Assembly in all future periods of this government, to cherish literature and science." The court rejected this argument, stating that the decision of which laws cherish science is a matter for the legislative and not the judicial branch.

The Scopes Monkey Trial The defense argued that the Butler Act violates the Establishment Clause of the U.S. Constitution. The court rejected this argument, stating that because there was no clear consensus among religious groups' acceptance or denial of evolution, it is not a religiously divisive issue. The court also pointed out that the Butler Act did not require the teaching of creationism or any other doctrine, so no religious beliefs were promoted.

The Scopes Monkey Trial Despite rejecting these arguments, the Tennessee Supreme Court overturned the conviction. Did the defense argue that it was never shown that Scopes actually broke the law? No. The Court ruled that the jury should have decided the sentence. Furthermore, Tennessee state law prohibited judges from imposing fines of over $50. The prosecution did not seek a retrial.

Everson v. Board of Education, Ewing TP. Though this case was not about anti-evolution legislation, the decision has been heavily cited in the subsequent cases involving separation of church and state. It stated, in part, “Neither a state nor the Federal Government ... can pass laws which aid one religion, aid all religions, or prefer one religion over another.”

Epperson v. Arkansas In 1929, Arkansas adopted a law which prohibited any public school or university from teaching "the theory or doctrine that mankind ascended or descended from a lower order of animals" and from using any textbook which taught the same. Forrest Rozzell, the secretary of the Arkansas Education Association, convinced Little Rock teacher Susan Epperson to agree to request a declaratory judgment of the law, who was concerned about the adoption of an apparently illegal textbook for the 1965-66 school year.

Epperson v. Arkansas After a short hearing, the Chancery Court found the law unconstitutional because it impeded teachers' freedom of speech. The Arkansas Attorney General appealed the case to the Arkansas Supreme Court, which ruled that the law was "a valid exercise of the state's power to specify the curriculum in its public schools." The Court added, "The court expresses no opinion on the question whether the Act prohibits any explanation of the theory of evolution or merely prohibits teaching that the theory is true; the answer not being necessary to a decision in the case, and the issue not having been raised."

Epperson v. Arkansas The AEA appealed to the U.S. Supreme Court, which found the wording vague. However, the Court went on to rule that because the law was religiously motivated and had the effect of promoting a single religion, it violated the Establishment Clause as described in Everson v. Board of Education (1947).

Lemon v. Kurtzman In another non-evolution case, the Lemon v. Kurtzman decision set forth the Lemon test for determining constitutionality regarding the Establishment Clause: In order to be constitutional, the government's action must: have a legitimate secular purpose not have the primary effect of either advancing or inhibiting religion not result in an "excessive entanglement" of the government and religion.

Willoughby v. Stever In 1973, creationist William Willoughby sued NSF director H. Guyford Stever for using taxpayer money to fund pro-evolution textbooks, claiming that they promoted the religion of secular humanism and thereby violated the Establishment Clause. The DC Circuit Court of Appeals found that the textbooks promoted science and not religion.

Daniel v. Waters In this foreshadowing of McLean v. Arkansas, the U.S. Sixth Circuit Court of Appeals struck down a Tennessee law requiring “equal time” teaching evolution and creation, citing Epperson and Lemon.

McLean v. Arkansas In 1981, Arkansas passed Act 590, also known as the “Balanced Treatment” act. It mandated the equal teaching of “creation-science” and “evolution-science” througout the state. The act was challenged by a number of religious groups, on the grounds that it constituted an establishment of religion, in violation of the Establishment Clause denied academic freedom, in violation of the Free Exercise Clause was impermissibly vague, in violation of the Due Process Clause

McLean v. Arkansas U.S. District Court for the Eastern District of Arkansas Judge William Overton heard extensive testimony from both sides before issuing a decision. He applied the guidelines set down by the Lemon decision.

McLean v. Arkansas The Lemon test: In order to be constitutional, the government's action must: have a legitimate secular purpose not have the primary effect of either advancing or inhibiting religion not result in an "excessive entanglement" of the government and religion.

McLean v. Arkansas Overton first found that “creation-science” was based on religious teachings and therefore had at least some religious purpose. However, he felt it necessary to determine whether the defense's claims that “creation-science” had a legitimate educational purpose in order to fairly apply the first prong of the Lemon test.

McLean v. Arkansas In a blistering critique of creationist argumentation, fallacies, doublespeak, and especially methodology, Overton found that “creation- science” did not meet the qualificatory criteria of science, which include basis in natural law, testability, tentativeness, and falsifiability. Because creation-science is not science, Overton ruled, it could not have scientific or educational purpose. Therefore its primary purpose and effect are to promote religion, so it fails both the first and the second prongs of the Lemon test.

McLean v. Arkansas Overton further ruled that because the teaching of creation-science would require teachers to answer questions that can only be answered by referring to the Bible for an explanation, this entails “excessive entanglement” of government and religion, violating the third prong of the Lemon test. Many creationists' writings were used to show that creationism is inherently religious, including Gish's “creationism implies a Creator.” The defendants claimed both that evolution is a religion and that creation-science is science. If creation-science is not religion and is instead science, then it is hard to see how how teaching creation-science would “neutralize” the teaching of religious evolution If evolution really were a religion, as defendants claim, then the remedy is to stop teaching evolution, not start teaching creation-science.

Other important issues at question: McLean v. Arkansas Other important issues at question: “Academic freedom” does not mean the freedom to teach whatever one pleases. The law does not violate teachers' and students' rights under either the Free Exercise Clause or the Establishment Clause. The belief of the majority of Arkansas constituents (in creationism) was not sufficient for overriding the Establishment Clause. Many creationists' writings were used to show that creationism is inherently religious, including Gish's “creationism implies a Creator.” The defendants claimed both that evolution is a religion and that creation-science is science. If creation-science is not religion and is instead science, then it is hard to see how how teaching creation-science would “neutralize” the teaching of religious evolution If evolution really were a religion, as defendants claim, then the remedy is to stop teaching evolution, not start teaching creation-science.

Edwards v. Aguillard Shortly after the McLean complaint was filed, Louisiana passed its own “balanced treatment” act. In a summary judgement (Aguillard v. Treen), a U.S. District court found that the act violates the Establishment Clause.

Edwards v. Aguillard The defense appealed to the U.S. Circuit Court of Appeals. The Circuit Court affirmed the District Court's finding.

Edwards v. Aguillard The defense appealed to the U.S. Supreme Court. With legal reasoning similar to that in McLean, the Supreme Court upheld the District Court's findings. “'Academic Freedom' does not encompass the right of a legislature to structure the public school curriculum in order to advance a particular religious belief.” Because the Supreme Court heard and ruled upon this case, the finding, unlike that of McLean, outlawed the teaching of creation science nationwide.

Edwards v. Aguillard Related Notes: The only affidavits in this case were submitted by creationists. Most of the Court relied upon information gathered during McLean. Justice Antonin Scalia dissented, based on his objection to both the general interpretation and the validity of the Lemon test.

Nevertheless, Scalia felt it necessary to include in his dissent, Edwards v. Aguillard Nevertheless, Scalia felt it necessary to include in his dissent, “Perhaps what the Louisiana Legislature has done is unconstitutional because there is no such evidence, and the scheme they have established will amount to no more than a presentation of the Book of Genesis. But we cannot say that on the evidence before us in this summary judgment context, which includes ample uncontradicted testimony that "creation science" is a body of scientific knowledge rather than revealed belief.” Scalia went on to say, “Infinitely less can we say (or should we say) that the scientific evidence for evolution is so conclusive that no one could be gullible enough to believe that there is any real scientific evidence to the contrary, so that the legislation's stated purpose must be a lie.” In other words, Scalia considered only the creationist affidavits and completely ignored the information and findings of the McLean trial.

Peloza v. Capistrano School District In 1994, creationist schoolteacher John E. Peloza had his challenge appealed to the Ninth Circuit. Every complaint was rejected (except his appeal of a lower court's ruling regarding attorney's fees.) Although a single judge “dissented” in that prohibiting Peloza from speaking at all about religion was probably a violation of his freedom of speech, there is no finding that prohibiting the teaching of creation science infringes that right.

Kitzmiller v. Dover Area School District In late 2005, a U.S. District Court – after hearing extensive testimony regarding the validity of “Intelligent Design” – issued a merciless decision that ruled that I.D. is not science and "cannot uncouple itself from its creationist, and thus religious, antecedents." The school district, whose offending board members had been voted out while the trial worked through the courts, chose not to appeal.

“Academic Freedom” v. Establishment Clause In the great battle between academic freedom and the Establishment Clause, the Establishment Clause wins every time.

Arkansas Politicians Speak Out “The basis of my paper was that although legislative mandated efforts to teach creation science or intelligent design have been struck down, the courts have left open teaching those theories under an instructor’s First Amendment right to academic freedom,” DeLay said. BULL%#^&!

Fortunately, Some Sanity Exists “What is established as generally accepted science should be taught. I’d think the scientific and the education communities would be exactly who we would trust to do that,” said Democratic candidate for attorney general Dustin McDaniel. “It’s up to our churches and our families to explain exactly how the scientific parts of the universe are created by God.”

Fortunately, Some Sanity Exists Bill Halter, Democratic candidate for lieutenant governor, agreed with McDaniel. “It’s not the purpose of science classes to teach religion,” Halter said. “It’s the purpose of science classes to teach science.” Halter said he didn’t know enough about intelligent design to know whether it qualifies as science. “I will leave that question to scientists and educators,” Halter said.

The End? There is no legal basis for the claim that academic freedom, freedom of speech, or freedom of religion either justify the censorship of evolution or permit the teaching of creationism. However, creationists tend to have little regard for such minor technicalities as the Constitution. There is little doubt that the Intelligent Design movement will result in more legal challenges.