Oh yeah? I dare you to sue us!

Posted by Timothy Sandefur on October 22, 2004 07:58 PM


A while back I posted about the school district in York, Pennyslvania, which decided to add the creationist book From Pandas To People to their classrooms. The school board chose not to require it as part of the curriculum, but did place it in classes for teachers to use, which I said was inappropriate.

It turns out the school district has decided to go farther.

The school board has chosen to add the following language to the science curriculum:

Students will be made aware of gaps/problems in Darwin's Theory and of other theories of evolution including, but not limited to, intelligent design. Note: Origins of life will not be taught.

To me, the last sentence is the most shocking. To say that an entire area of study--something so fundamental to science--will not be taught is deeply disturbing. If school boards are determining that things are not to be taught, then it would seem they have a different idea about what the word "teacher" means than I do.

But what about the First Amendment? To begin with, I was impressed with the boldness of school district member Heather Geesey, who told the York Daily Record "We are not going to be sued.... It's not going to be a problem. I have confidence in the district's lawyers." Unfortunately, it's entirely possible that she is right. People are often reluctant to, as they say, fight city hall. I hope very much that a parent concerned about the quality of education that his or her child receives will step forward to prove Ms. Geesey's prediction wrong.

The First Amendment, as applied to the states, prohibits a public school from teaching a religious position as the truth. A government school which teaches students "intelligent design" is teaching students that God created the world and life. This is not only extraordinarily bad science, but it violates the Constitution.

In Edwards v. Aguillard, 482 U.S. 578 (1987), the Supreme Court considered the Constitutionality of a Louisiana law which prohibited teachers from teaching evolution unless they provided "equal time" to creationism. The parents challenged this law as a violation of the Establishment Clause, which forbids states from "mak[ing any] law respecting an establishment of religion...." To decide whether a law constitutes an illegal establishment of religion, the Court applies a test called the Lemon test after the case of Lemon v. Kurtzman, 403 U.S. 602 (1971). According to that test (which has been somewhat modified, but remains law today), government violates the Establishment Clause whenever

1) it fails to act with a secular purpose;
2) the principal or primary effect of the government's act either advances or inhibits religion; or
3) the government's act results in an excessive entanglement of government with religion.

If any of these three things happens, then the government has violated the Establishment Clause. In Aguillard, the Court found that the goal of the Louisiana "equal time" law

was a product of the upsurge of fundamentalist religious fervor that has long viewed this particular scientific theory as contradicting the literal interpretation of the Bible.... [T]he motivation for the...law was the same [as other anti-evolution statutes]: to suppress the teaching of a theory which, it was thought, "denied" the divine creation of man..... [T]here can be no legitimate state interest in protecting particular religions from scientific views distasteful to them...and...the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma.... The preeminent purpose of the Louisiana Legislature was clearly to advance the religious viewpoint that a supernatural being created humankind.

Aguillard, 482 U.S. at 590-91 (quotation marks and citations omitted).

Because the Louisiana law tried to put the state's seal of approval on "the religious belief that a supernatural creator was responsible for the creation of humankind," id. at 592, the Court found that the law did not have a legitimate secular purpose: "the purpose of the Creationism Act was to restructure the science curriculum to conform with a particular religious viewpoint." Id. at 593. Thus the law failed the Lemon test, which meant it was an establishment of religion, and therefore a violation of the First Amendment.

Now, defenders of "intelligent design" try hard to portray it as different than creationism. "We aren't insisting on creationism," they might say in defending the Pennsylvania act. "We're just saying that students should be taught more information about evolution--information we consider favorable to our case." But interestingly, the Aguillard decision did touch a little on this argument: "the Act's primary purpose was to change the science curriculum of public schools in order to provide persuasive advantage to a particular religious doctrine that rejects the factual basis of evolution in its entirety," the Court said. Id. at 592. Intelligent design proponents might say, "Yes, and we do not reject it in its entirety, so Aguillard doesn't apply to us." But, said the Court,

The sponsor of the Creationism Act...repeatedly stated that scientific evidence supporting his religious views should be included in the public school curriculum to redress the fact that the theory of evolution incidentally coincided with what he characterized as religious beliefs antithetical to his own. The legislation therefore sought to alter the science curriculum to reflect endorsement of a religious view that is antagonistic to the theory of evolution.

Id. at 593 (emphasis added).

Nor is the Establishment Clause violated only by actually teaching students that a religious-origin story is true. In Freiler v. Tangipahoa Parish Bd. of Educ., 975 F.Supp. 819 (E.D. La. 1997), aff'd 185 F.3d 337 (5th Cir. 1999), cert. denied, 530 U.S. 1251 (2000), the Federal District Court held that a school district violated the Establishment Clause by requiring teachers to read a disclaimer to students before teaching the evolution. Applying the Lemon test, the court concluded

it is patent that...[the] School Board...believed that teaching the theory of evolution is antithetical to the religious belief in the creation of life by a Divine Creator, that the [disclaimer] was introduced to satisfy similar religious concerns of majority of the constituency.... As hard as it tries to, this Court cannot glean any secular purpose to this disclaimer. While the School Board intelligently suggests that the purpose of the disclaimer is to urge students to exercise their critical thinking skills, there can be little doubt that students already had that right and are so urged in every class.... A review of the all of the evidence presented leaves little doubt that the reasons for the adoption of the resolution were religious.

Id. at 829.

The York decision to "ma[ke students] aware of gaps/problems in Darwin's Theory and of other theories of evolution including, but not limited to, intelligent design," is obviously religiously motivated. Worse, it is simply a direct affront to the well-established First Amendment law in this country--law which has been clear at least for thirty years, from the highest court in the land. It is a brazen violation of the law by government officials who think they will get away with it because "We are not going to be sued.... It's not going to be a problem." Perhaps we have some Pennsylvania readers who would beg to differ.

More at the National Center for Science Education, and Americans United for Separation of Church and State (somewhat outdated).

Trackback URL: http://www.pandasthumb.org/cgi-bin/mt/mt-tb.cgi/574

Comment #9035

Posted by Joe McFaul on October 22, 2004 08:42 PM (e) (s)

Where do we sign up for pro bono legal assistance if needed?

Comment #9036

Posted by Steve on October 22, 2004 08:47 PM (e) (s)

The First Amendment, as applied to the states, prohibits a public school from teaching a religious position as the truth. A government school which teaches students “intelligent design” is teaching students that God created the world and life. This is not only extraordinarily bad science, but it violates the Constitution.

ID is intended to be a secular disguise to sneak past Constitutional guards. I hope people who aren’t unusually informed on the topic, like judges, can tell this friend’s a foe. But I think ID is a good enough charade that it might work. Pay no attention to the born-agains behind the curtain….

Comment #9037

Posted by Salvador T. Cordova on October 23, 2004 12:01 AM (e) (s)

What is amazing is the Discovery Institute is against what the school board has done.  I think they don’t want a repeat of the lawsuits that shut down creationism.  They would rather something like the Ohio Standards, I suppose.

ID in Dover, Pennsylvania

Those at the Discovery Institute, who have also advised a school board member on the issue, said the board member might have overstepped his bounds. “We don’t endorse or support what the Dover School District has done,” West said. “This is not what we recommend.”

Comment #9038

Posted by Timothy Sandefur on October 23, 2004 01:32 AM (e) (s)

Mr. McFaul: I would recommend calling the ACLU of Pennsylvania. To be a plaintiff in a federal lawsuit against school board for a violation of the Establishment Clause, all that is required is that one be able to demonstrate that one’s tax dollars are going to the support a government action that violates the Establishment Clause. (Pennsylvania state courts might also have very lax standing requirements; I don’t know.) I’m sure the Pennsylvania ACLU has been following this matter; they’re quite active on church/state issues there. Also, those interested should call Americans United for Separation of Church and State.

Mr. Cordova: That’s very interesting, but you’re probably right; they’re probably concerned that such an honest theocratic motive behind the Dover decision makes it more likely that the school district will lose a potential lawsuit, and thereby set precedent that will make matters more difficult for ID proponents.

Comment #9051

Posted by mark duigon on October 23, 2004 09:05 AM (e) (s)

School board member William Buckingham, who spearheaded this assault on intelligence, repeatedly questioned the morality and patriotism of those who held opposing views at a board meeting. 

What further proof of the scientific validity of ID could anyone want?

Comment #9053

Posted by Chet on October 23, 2004 01:30 PM (e) (s)

From AIG (as if they’d make a rational comment on the topic):

” … because it may turn out to be counter-productive (e.g. science instructors, in a mocking fashion, might teach alternative theories like ID inaccurately and poorly, and students could become confirmed in the evolution belief system; furthermore, as the curriculum is currently worded, these teachers will have full license to make their students aware of problems in intelligent design).”

According to them it would be a bad thing to teach the problems of a ‘theory’.  It seems they want their cake and eat it too.  Teach the problems with evolution but don’t touch the problems with ID. One more reason perhaps to not take AIG too seriously, IMO.

Comment #9054

Posted by RBH on October 23, 2004 01:53 PM (e) (s)

This seems to me to be an excellent opportunity for Dover, PA, teachers to include Multiple Designers Theory.  Does anyone have appropriate contacts there to alert them of an actual “intelligent design” theory, as opposed to the metaphysical speculations generated by lawyers, rhetoricians, journalists, and philosphers?

RBH

Comment #9057

Posted by RBH on October 23, 2004 03:44 PM (e) (s)

Salvador wrote

What is amazing is the Discovery Institute is against what the school board has done.  I think they don’t want a repeat of the lawsuits that shut down creationism.  They would rather something like the Ohio Standards, I suppose.

Funny.  The guy pushing it in Dover thinks the Discovery Institute is supporting him.  See here from AgapePress.

RBH

Comment #9059

Posted by Chet on October 23, 2004 05:53 PM (e) (s)

Could the DI be opposed to this for the same reasons that AIG think it may be ‘counter-productive’? 

The fact that ID ‘theory’ being taught as a matter of education rather than indoctrination could result in the existance of their (version of the) one, true, intelligent designer being exposed as possibly not one, nor true, nor even existant.

Comment #9060

Posted by RBH on October 23, 2004 05:56 PM (e) (s)

Chet wrote

Could the DI be opposed to this for the same reasons that AIG think it may be ‘counter-productive’?

The fact that ID ‘theory’ being taught as a matter of education rather than indoctrination could result in the existance of their (version of the) one, true, intelligent designer being exposed as possibly not one, nor true, nor even existant.

I have never seen a proposal from the Discovery Institute to “critically examine intelligent design theory.”

RBH

Comment #9091

Posted by RBH on October 25, 2004 10:34 AM (e) (s)

Here is one of the best takes on the Dover Board’s decision I’ve seen yet. 

My theory is that life on this planet evolved with the aid of tequila.

Think about it: The intelligent design people say Darwin’s theory of evolution leaves too many things to accident. And what’s caused more accidents, particularly in the area of spreading the gene pool, than tequila?

Of course, there are some gaps in the theory — elephants don’t drink tequila; they’re beer drinkers — but hey, nothing’s perfect. In its defense, it probably has as much scientific proof as intelligent design.

RBH

Comment #9102

Posted by frank schmidt on October 25, 2004 09:29 PM (e) (s)

I think Dover PA should also teach IM (Intelligent Mechanics) in Physics class. The gap between the Newtonian and quantum/relativistic worldviews will be bridged by an Intelligent Mechanic moving all those little particles around so that they just seem to be both particles and waves. Entanglement would no longer be a conundrum - the Intelligent Mechanic would just tell the particles which way to spin. It would be so much easier to understand than all that mathy-stuff physicists believe in so dogmatically.

Once they make pi = 3.000, life will be complete.

Comment #9131

Posted by Prolagus on October 26, 2004 05:10 PM (e) (s)

FYI :
A few weeks ago, the French Department of Education got interested in the creation/evolution debate - following a recent (and problematic) law prohibiting religious schoolgirls and schoolboys from wearing obvious religious objects in classrooms.

An official notice to teachers was published a few weeks ago on the DoE web site ; it is entitled ‘republican values & secularity : the instance of Life & Earth Sciences’. I can provide a translation at your request.

It presents concise, simple yet effective arguments about how teachers could (and IMHO should) deal with such an issue ; actually they are the same kind of reflections that are sometimes expressed here at PT, TO etc. :)

Trackback: Looking Over the Cliffs of Dover

Posted by Dispatches from the Culture Wars on December 25, 2004 05:37 PM

Like all those who are interested in science, education, and the separation of church and state, I've been watching the developments in Dover very closely over the past several months. It has been fascinating on many different levels: religious and...

Trackback: Guest Column: Looking Over the Cliffs of Dover

Posted by Dispatches from the Culture Wars on December 25, 2004 05:42 PM

Ed. note: This is a guest post on the ACLU lawsuit filed against the school board in Dover, Pennsylvania by Dan Ray. Dan is an attorney and the director of the Paralegal Studies Program at Eastern Michigan University. He studied...

Trackback: Guest Column: Looking Over the Cliffs of Dover

Posted by Dispatches from the Culture Wars on December 25, 2004 05:45 PM

Ed. note: This is a guest post on the ACLU lawsuit filed against the school board in Dover, Pennsylvania by Dan Ray. Dan is an attorney and the director of the Paralegal Studies Program at Eastern Michigan University. He studied...