Timothy Sandefur posted Entry 26 on March 24, 2004 09:13 PM.
Trackback URL: http://www.pandasthumb.org/cgi-bin/mt/mt-tb.fcgi/25

I finally got around to reading the infamous student article by Lawrence VanDyke, Not Your Daddy's Fundamentalism: Intelligent Design in The Classroom, 117 Harv. L. Rev. 964 (2004). Most of the criticism leveled at the article was based on the fact that ID creationism is scientifically baseless, as indeed it is, as well as on the intellectual dishonesty of several of VanDyke's statements, both in the article and in the ensuing ruckus. But right as these criticisms are, I think they overlook the main problem of VanDyke's argument. That problem is one that goes to the heart of the legal aspects of the debate over the place of evolution in public schools.

VanDyke's real point is that "evolution's leading advocates...perceive a significant and motivating relationship between naturalism and evolution." Id. at 971. By "naturalism," VanDyke means what he sees as an entire philosophical iceberg, of which the scientific issue is only the tip. There is, he says, a "naturalistic philosophy inherent in their perception [sic] of evolution...." Id. In other words, evolution is part of a world-view, just as, say, prayer is part of a world-view. Where those of us who believe in science demand evidence and repeatable experiments, those who appeal to religion depend on faith and transcendence. Since the Constitution requires the state to be neutral with regard to religious or philosophical viewpoints (this argument proceeds) the state ought not teach evolution to the exclusion of religion any more than it ought to support Christianity to the exclusion of Islam or Hinduism.

There are three problems with this view.

First, courts have already rejected it. In Peloza v. Capistrano Unified School District, 37 F.3d 517 (9th Cir. 1994), the Ninth Circuit Court of Appeals said,

Charitably read, Peloza's complaint at most makes this claim: the school district's actions establish a state-supported religion of evolutionism, or more generally of "secular humanism." According to Peloza's complaint, all persons must adhere to one of two religious belief systems concerning "the origins of life and of the universe:" evolutionism, or creationism. Thus, the school district, in teaching evolutionism, is establishing a state-supported "religion." We reject this claim because neither the Supreme Court, nor this circuit, has ever held that evolutionism or secular humanism are "religions" for Establishment Clause purposes. Indeed, both the dictionary definition of religion and the clear weight of the caselaw are to the contrary. The Supreme Court has held unequivocally that while the belief in a divine creator of the universe is a religious belief, the scientific theory that higher forms of life evolved from lower forms is not.

Id. at 521 (citing Edwards v. Aguillard, 482 U.S. 578 (1987)). VanDyke cites Peloza, but nowhere attempts to discuss its implications. (This is understandable, however, considering the space constraints of a book review.)

Second, and relatedly, if evolution is the tip of the iceberg of "evolutionism," then it would appear that "evolutionism" means the world view that demands evidence and rational extrapolation from data, and eschews "skyhooks" in explaining natural phenomena. If that's the definition of "evolutionism," (VanDyke calls it "methodological naturalism." 117 Harv. L. Rev. at 964) then is the state required to be neutral between it and other world views which do not demand evidence, rational extrapolation, and an eschewing of skyhooks? This is the most difficult part of the whole discussion, because in some cases the answer is clearly yes, and in some cases the answer is clearly no. Surely the court cannot ignore the difference between rationality and irrationality--because "[a]ny society adopting such a system would be courting anarchy." Employment Div. v. Smith, 494 U.S. 872, 888 (1990). Suppose a man has a patently absurd notion that his neighbor is reading his brain through highly sophisticated alien technology: he can't sue for nuisance, because this is a frivolous and irrational claim. See McPherson v. First Presbyterian Church, 120 Okl. 40 (1926) (nuisance suit cannot be maintained where neighbor's fear is irrational). Contra, Everett v. Paschall, 61 Wash. 47, 51 (1910). And some courts have taken judicial notice of the irrationality of certain pseudosciences, including phrenology and astrology. United States v. Downing, 753 F.2d 1224, 1238 n. 18 (3d Cir. 1985).

But--as we lawyers like to say--on the other hand.... The Supreme Court has said that we cannot inquire into the factual validity of certain patently absurd factual claims that are based on religion. In United States v. Ballard, 322 U.S. 78 (1944), the defendants were charged with fraud because they claimed to be faith healers. The Court said that it could not address whether faith healing really was a valid practice or not, because while

[t]he religious views espoused by respondents might seem incredible, if not preposterous, to most people..., if those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain. The First Amendment does not select any one group or any one type of religion for preferred treatment. It puts them all in that position. Id. at 87.

Ballard suggests that courts must, indeed, remain neutral between scientific and non-scientific worldviews. And if the government must treat these as equal, then consider the following rewording of a passage from Epperson:

there can be no doubt that Arkansas has sought to prevent its teachers from discussing the theory of [Intelligent Design] because it is contrary to the belief of some that [relying on evidence and rational extrapolation from data, and eschewing "skyhooks" in explaining natural phenomena] must be the exclusive source of doctrine as to the origin of man. No suggestion has been made that Arkansas' law may be justified by considerations of state policy other than the [scientific] views of some of its citizens. It is clear that [the belief that evidence and reason, rather than dogma and faith must explain the natural world] was and is the law's reason for existence. 393 U.S. at 107-08.

This is what the creationists want to see. And I don't think it is--as far as the First Amendment is concerned--an obviously silly argument, or an easy one to answer. Now, let me again reiterate that I believe evolution by natural selection is the only rational explanation for the origin of species, I do not believe schoolchildren should be taught creationism in any of its guises, and I believe that all people ought to rely on evidence and rational extrapolation of data and ought to eschew "skyhooks." But this is the real argument that the creationists are making, and we do ourselves no favors by dodging the issue: either "evolutionism" (or "methodological naturalism," or whatever term we use for rationality) must be treated by the state as interchangeable with irrational, mystical explanations of phenomena such as the origin of species, or not.

One potential answer to this conundrum has been to assert that evolution and religion are compatible, and therefore that evolution is not really a worldview anyway, and therefore the interchangeability issue never arises. This is the view of Gould, Ruse, et al. as I understand it. Like Dawkins, I find this unsatisfying. I think, if there is an answer, it must lie in a more precise understanding of the First Amendment. Ballard simply cannot be correct, at least, in its broadest apparent implications. The state can legitimately choose to teach children that the world is round instead of flat; that maggots do not spontaneously generate from meat, and so forth, even if their parents dispute these things on religious grounds. Indeed, whenever government acts, it is making a "statement" about a "preference": by creating schools, it is choosing knowledge over ignorance, and literacy over illiteracy. In doing so, the government is "speaking." And perhaps we will find a solution to the problem in cases involving government's own expression, such as Rust v. Sullivan, 500 U.S. 173, 193 (1991), in which the Court said that "The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest," so long as it does not actually penalize those who express alternative viewpoints. But I see flaws in this analogy, too. In fact, under the First Amendment, parents do have the explicit right to--at least to some degree--choose ignorance instead of knowledge for their children. See Wisconsin v. Yoder, 406 U.S. 205 (1972).

To be honest, I do not believe any solution to this problem is possible so long as we have public schools. Of course, few are willing to seriously reconsider whether government should be in the education business at all (and this is problem number three). But public education inevitably spends some people's money--taken through taxes--to teach other people's children certain ideas. It is unfortunate that there are those who do believe that teaching children true ideas, like evolution (and, more importantly, teaching them to demand evidence and rational extrapolation from data, and to eschew "skyhooks" in explaining natural phenomena), is a bad thing. Very unforutnate. But if we agree with Jefferson that "that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical," then we must confront the problem that public education inherently does just that. As I've noted elsewhere, when government gets involved, it always becomes "excessively entangled."

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Comment #87

Posted by ks ~ on March 24, 2004 9:31 PM (e)

neat site. can you explain the thumb thing? If I were to guess I’d think that some fundie tried to point out something about panda’s thumbs in order to disprove evolution??? but I don’t know the background, pls explain


Comment #90

Posted by brew on March 24, 2004 10:16 PM (e)

Hey guys. I’ll cut straight to the chase. Is cold fusion a fraud? If it is, how do you explain away the 15 years of reproducable data that have been generated since Pons and Fleishman’s announcement? Is it all the work of pathological liars, charletons, and frauds? All of it? If it isn’t a fraud, if even ONE SINGLE EXPERIMENT actually showed the generation of anomolous, excess heat, that can’t be accounted for by chemical processes, then isn’t it true that in hindsight, Pons and Fleishman were lynched by the high priests of science in 1989? Finally, if they were, what does that say about the integrity of members of the scientific community who claim that all of the fundemental forces that might impact their experiments (and which would by definition include forces at work in biochemistry) are accounted for, and no other forces are at work, or even exist?

If you want to wait until the Department of Energy completes its just announced review of the last 15 years of cold fusion evidence, I understand. With so much data that has heretofore been dismissed as pathological about to get an honest revue, I wouldn’t want to get out in front of this freight train either.

Comment #91

Posted by Matt Brauer on March 24, 2004 10:19 PM (e)

Excellent post, Timothy. I think you’re exactly right to emphasize that the issue is of the state “preferring” rationality to non-rationality, as it should. The implications for this go far beyond the publc schools of course, and touch on land use, conservation, medical technology – indeed, all issues which science has a role in.

Comment #93

Posted by Dave on March 24, 2004 11:22 PM (e)

Nice comments, Tim. I think you seem to be saying that, as a matter of public policy, the issue is more complicated than simply saying “We are right and you are wrong,” even if one is demonstrably right. That’s pretty much what I was trying to say earlier. I think you said it better.

Comment #108

Posted by Doug G on March 25, 2004 6:05 AM (e)

Tim’s post makes a major mistake in conflating that science is a philosophy and any religion is a philosophy and there fore the state can’t legitimately, under the First Amendment, choose between the two. There’s a long history showing that the government does not believe that science is just another philosophy, but rather a legitimate means of determining truth (and therefore differing from religious beliefs which are essentially untestable). This is certainly apparent in the Supreme Court’s Daubert decision which sets criteria for the admissibility of scientific information. If there can be “good” and “bad” science for the purposes of its use in a law suit, then the Court is saying that one is more likely to represent the “truth” and is a reasonable basis on which to judge the issue at hand.

Furthermore, once we start down the slope of thinking of science as just another philosophical world view, we’ve lost. It’s not. It’s a method for determining what is real. So, we can, in good conscience, say clearly that evolution by natural selection is science and ID is not and in doing so we are not asking the state to support one world view over another.

Comment #109

Posted by Dick Thompson on March 25, 2004 6:17 AM (e)

I agree with Doug. There is no real symmetry between science, including evolution, and religion. The philosophy argument is a red herring, and the first amendment governs what one can say in public, not what can force teachers to teach.

Comment #114

Posted by Tom Clark on March 25, 2004 6:53 AM (e)

Thanks to Timothy for an interesting post. But Doug and Dick have it more or less right. None of the disputants in the creationist controversy suggests that science shouldn’t be taught in schools. The dispute is whether science can or should accommodate creationism and intelligent design.

Creationists claim that science is illegitimately biased by the assumption of naturalism, and that therefore to make it ideologically neutral we should countenance supernaturalist scientific explanations. But science does *not* in fact assume naturalism, either methodological or ontological, it simply seeks to explain phenomena in ways that are maximally predictive and unifying. If you take science as your preferred means of justifying knowledge claims, you’ll be led to naturalism as a world view because science inevitably unifies as it explains. But science isn’t ideologically biased – it’s a method of explaining the world, and not the only one available: you’ve got your traditions, authoritative texts, revelations, intuitions, etc. Creationists should stick to these ways of knowing if they want to get to god and the supernatural. Science can’t get you to god.

Since science isn’t biased, it doesn’t need ideological balancing, which means creationists don’t have any good justification for introducing supernatural hypotheses into science. If they are introduced, such hypotheses get selected out of science quite rapidly as it proceeds toward the best explanation.

Tom Clark
Center for Naturalism

Comment #115

Posted by mc on March 25, 2004 7:00 AM (e)

But if you think the very existence of public schools is the origins of the problem, then… what about laws? What if a government has laws that some people consider wrong? You’re still required to respect them. Is that tyranny? I don’t think so.

Suggesting we should do without public schools just because some groups are trying to hijack them is close enough to suggesting we should do without laws just because some people do not believe in them or are constantly violating them.

Ok it’s different realms, but still. The line seems to be clearly drawn to me. If you teach science, you teach scientifical theories, not religious ones. Parents can still send their kids to religious classes outside of school.

There doesn’t need to be that conflict between science and religion at all, because, at the root, there isn’t really.

If you view creationist demands on public schools as an insoluble problem that questions the need to have public schools at all, then, you’re allowing the creationists to define what both science and religion and government and education are for everybody else… Why let the fanatics get to represent everyone else? Religion does not equal creationism. Education does not equal indoctrination. Teaching something doesn’t equal tyrannical imposition.

And why should all the other people who, religious or not, are not creationists be deprived of the right to public education?

Comment #135

Posted by carrie on March 25, 2004 10:14 AM (e)

I don’t see any “conundrum”. Science classes teach that which has been arrived at by the scientific method, and to the extent that science teachers deviate from this, they should be subject to criticism. There is no science “worldview”, only falsifiable theories that have been tested using this method (always subject to revision!). In other words, science is not “evolutionism” or “relativism” or “quantum mechanics”; it is the practice of the scientific method itself.

Comment #142

Posted by Patrick Armshaw on March 25, 2004 11:23 AM (e)

You bring up a great point regarding Public Education. The biggest problem is that the Public Education System (as an activity of the state) was specifically created as a way to inculcate state-approved values into the general mass of the citizenry. When it began in Prussia, the point was to create good soldiers. In the US, it was seen as creating goods workers and consumers. The modern state is probably not possible without it: the homogeniety that the nation-state demands is simply not going to happen spontaneously. Our problem is in integrating an academic-based approach (where the point is to create thinkers, and to reveal rational truth) with a) an economy that will never have enough jobs for them, b) a large number of religious who do not take academia as their role-models, and c)the inevitable intellectual coercion that is part and parcel of a public education system.
The heart of the system is the question of which values to instill, and values are inherently political. On this level, the IDers have a point, and we must not fool ourselves into thinking that, just because what we say is based in verifiable truth, that what we want taught is neutral.

Comment #163

Posted by Steve Snyder on March 25, 2004 2:11 PM (e)

Several comments:
1. Science is at least a sociology if not a philosophy, if by science we mean the “scientific method.” Again, do parents have a right to not have their children taught that? This goes back to the main question about public schools and the state’s role in education.
I favor public schools, in part on these grounds – the state has a compelling interest in supporting, promoting and developing critical reasoning skills, etc. If the parents want to brainwash their children out of this in private time, well, the state has no right to intrude in that. But, whenever those efforts make themselves apparent in public school time, the state does have a compelling interest in counteracting that.
If parents don’t like that, they can take their kids out of public school. Better that than continuing efforts to water down or destroy public school science education.
2. Beyond science education, I think all public schools at, say the eighth grade level (Piaget’s hierarchy of development/abstract reasoning skills), should teach a class in critical reasoning. This would deal with informal logic, including looking at all the traditional fallacies of reasoning and argumentation, as well as, on the empirical side, looking at proper docmentation of evidence, and more.
3. Note to Brew - A. What does cold fusion have to do with intelligent design? B. It’s laughable to claim Pons and Fleischmann were lynched. (Make sure you get your spellings of names right when you post on an item about which you pretend to be knowledgable.) While a few other efforts seem to have produced some energy, nobody has been able to credibly link this energy to a room-temperature fusion process.

Comment #185

Posted by Ben Goff on March 25, 2004 6:00 PM (e)

The short answer is that the Constitution says nothing about says nothing prohibiting Congress from establishing a national philosophy as long as it is not a religion. A national bias against religion, certainly. That’s the whole purpose of a constitution, to institutionalize bias. Apparently from experience the writers of the Constitution has good reason to fear religion and from my experience of events since then their belief was justified.