Teaching the Evolution Controversy in Public Schools
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Vanderbilt Law Review Volume 56 Issue 3 Article 2 4-2003 Darwin, Design, and Disestablishment: Teaching the Evolution Controversy in Public Schools Jay D. Wexler Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Education Law Commons Recommended Citation Jay D. Wexler, Darwin, Design, and Disestablishment: Teaching the Evolution Controversy in Public Schools, 56 Vanderbilt Law Review 751 (2019) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol56/iss3/2 This Article is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. Darwin, Design, and Disestablishment: Teaching the Evolution Controversy in Public Schools Jay D. Wexler* I. THE EVOLUTION CONTROVERSY IN CONGRESS AND OHIO ... 761 A. Congress ................................. 761 B . O h io .......................................................................... 76 7 1. Administrative Proposals ............................. 767 2. Legislative Proposal ..................................... 774 II. TEACHING ABOUT THE EVOLUTION CONTROVERSY IN THE SOCIAL SCIENCE CLASSROOM .............................................. 776 A. Why Teach About Religious Views on Origins?. ...... 776 B. How to Teach About Religious Views on O rigin s ..................................................................... 78 6 C. Constitutional Issues ............................................... 790 III. TEACHING ABOUT THE EVOLUTION CONTROVERSY IN THE SCIENCE CLASSROOM .......................................................... 799 A. Why Teach Intelligent Design? ................................ 799 B. Why Not Teach Intelligent Design? ......................... 812 1. Introduction .................................................. 812 2. Constitutional Analysis ................................ 814 a. Intelligent Design as Religion ........... 814 b. Intelligent Design and Edwards v. A guillard ............................................ 825 3. Other Concerns ............................................. 829 C. An Alternative Proposal........................................... 831 IV. THE SANTORUM AMENDMENT AND THE OHIO PROPOSALS.. 834 A. The Santorum Amendment ...................................... 835 Associate Professor, Boston University School of Law. The author thanks Barbara Forrest, Kent Greenawalt, Chris Hazuka, Marty Lederman, Trevor Morrison, and the participants at a workshop at the Boston University School of Law for helpful comments on earlier drafts and Neal Minahan for superb research assistance. 751 VANDERBILT LAW REVIEW [Vol. 56:751 B . Oh io .......................................................................... 8 40 1. Proposed Administrative Reforms ............... 840 2. Proposed Legislative Reform ........................ 851 V . C ON CLU SION ........................................................................ 854 The controversy over teaching evolution in public schools is once again hot news.1 Ever since the Supreme Court decided in 1987 that Louisiana could not constitutionally require teachers to give equal time to teaching creation science and evolution,2 critics of evolution have adopted a variety of new strategies to change the way in which public schools present the subject to their students. 3 These strategies have included teaching evolution as a "theory" rather than as a fact, 4 disclaiming the truth of evolutionary theory,5 teaching 1. See, e.g., Holly J. Morris, Life's Grand Design: A New Breed of Anti-Evolutionists Credits It to an Unnamed Intelligence, U.S. NEWS & WORLD REPORT, July 29, 2002, at 52 (describing the intelligent design movement in one of a series of stories on evolution in the issue), available at 2002 WL 8430902; see also infra Part I. 2. Edwards v. Aguillard, 482 U.S. 578, 596-97 (1987): The Louisiana Creationism Act advances a religious doctrine by requiring either the banishment of the theory of evolution from public school classrooms or the presentation of a religious viewpoint that rejects evolution in its entirety. The Act violates the Establishment Clause of the First Amendment because it seeks to employ the symbolic and financial support of government to achieve a religious purpose. 3. In addition to the sources cited below, see also Eugenie C. Scott, Antievolution and Creationism in the United States, 26 ANN. REV. ANTHROPOLOGY 263, 277-85 (1997) (describing various strategies attempted since Edwards). 4. See, e.g., H.R. 888, 2002 Reg. Sess. (Miss. 2002), available at http://index.ls.state.- ms.us/S:/Documents/2002pdfhb/0800-0899/hb0888in.pdf (A failed Mississippi House bill provided that all curricula presenting evolution "shall indicate that evolution is only a theory."); H.R. 2548, 83d Reg. Sess. (Ark. 2001), available at http://www.arkleg.state.ar.us/f- tproot/bills/2001/htm/hb2548.pdf (An Arkansas House bill, which was postponed indefinitely, required teachers to tell the class whenever a statement made by the teacher was one of theory rather than of fact, and the bill identified the age of the earth as an example of such a theory.); H.R. 391, 146th Gen. Assem. (Ga. 2001), available at http://www.legis.state.ga.us/- Legis/2001-02/fulltext/hb391.htm (A Georgia House bill, which died in the Georgia House Education Committee, called for teachers to distinguish between "philosophical materialism and authentic science" when presenting material on the origin of life.); H.R. 4382, 91st Leg., 2001 Reg. Sess. (Mich. 2001), available at http://www.michigan-legislature.org/documents/2001- 2002lbillintroduced/house/pdfI2001-HIB.4382.pdf (A Michigan House bill, which died in the Committee on Education, presented evolution as an "unproven theory."); H.R. 511, 1997 Sess. (N.C. 1997), available at http://www.ncga.state.nc.usthtml1997fbills/Current- Versionfhousefhbil0511.full.html (A North Carolina House bill, which died in the Committee on Education/Higher Education, called for a revised science curriculum to ensure that evolution be taught as theory, rather than as proven fact.); Carrie Smith, Woman Takes Aim at Textbooks Mother Objects to Information on Evolution, CHARLESTON GAZETTE (W. Va.), Dec. 2, 2000, at 9A, available at 2000 WL 2640103 (describing a complaint filed by a West Virginia parent with the county board of education claiming that science textbooks presented "false and fraudulent" information about evolution in violation of state laws, which require that all classroom material be accurate); Updates, REP. NAT'L CTR. FOR SC. EDUC., Mar.-Apr. 1999, at 5 (describing how the Nebraska state Board of Education changed science content standards when the Deputy 2003] DARWIN, DESIGN,AND DISESTABLISHMENT 753 arguments against evolution, 6 teaching the allegedly nontheistic Attorney General informed it that teaching evolution as fact may violate a student's constitutional rights); Updates, REP. NAT'L CTR. FOR Sci. EDUC., Nov.-Dec. 1998, at 5 (describing the rejection by the Idaho School Boards Association of a resolution that would have prohibited evolution from being taught as fact). Defenders of evolution concede that evolution is technically a "theory," but they consistently point out that calling evolution a "theory," as that term is used in scientific discourse, does not cast any doubt on evolution's explanatory power or viability. See, e.g., Scott, supra note 3, at 278- 79 (noting the difference between the meaning of the word "theory" as used in science and among the public); see also infra notes 234-35. 5. See, e.g., Frieler v. Tangipahoa Parish Bd. of Educ., 185 F.3d 337, 349 (5th Cir. 1999) (finding a school board resolution, which required a disclaimer of endorsement before evolution could be taught, unconstitutional), cert. denied, 530 U.S. 1251 (2001); S. 6058, 57th Leg., 1st Reg. Sess. (Wash. 2001) (A failed Washington Senate bill called for a textbook insert describing macroevolution as an unobserved and unproven theory.), available at http://search.- leg.wa.gov/pub/textsearchNiewRoot.asp?Action=Html&Item=O&X=106144514&p=l; H.R. 1876, 47th Leg., 2d Sess. (Okla. 2000) (An Oklahoma House bill, which died in the Education Committee, would have given the Textbook Committee authority to insert one-page notices into any textbook.); S. 1139, 47th Leg., 2d. Sess. (Okla. 2000) (A bill that passed the Oklahoma Senate would have required all textbooks to "include acknowledgement that human life was created by one God of the Universe."), available at http://www2.lsb.state.ok.us/- measures/1999%2D00%20hb/sbl139%5Fhasb.rtf; 30 Okla. Op. Att'y. Gen. 26, 2000 WL 156576, at *6 (2000) (opining that the Textbook Committee lacked authority to require disclaimer); Okla. Textbooks to Carry Disclaimer, ASSOCIATED PRESS ONLINE, Nov. 11, 1999 (reporting on the Oklahoma State Textbook Committee order that required all relevant textbooks to carry a disclaimer stating that evolution is "a controversial theory"), available at 1999 WL 28138400; Mary McDonald, A Textbook Case in Cobb County, ATL. J. & CONST., Apr. 12, 2002, at iF (describing a Georgia county school board's order that each new biology textbook include an insert describing evolution as theory), available at 2002 WL 3718616; Eric Miekle, Alabama Upgrades Disclaimer, REP. NAT'L CTR. FOR SCI. EDUC., May-Aug. 2001, at 4 (describing revised Alabama disclaimer inserted into biology textbooks); Updates, REP. NAT'L CTR. FOR SCI. EDUC., Sep.-Oct.