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Notes Edwards V. Aguillard: Creation Science and Evolution Notes Edwards v. Aguillard: Creation Science and Evolution - The Fall of Balanced Treatment Acts in the Public Schools "It took God only six days to create the universe - it's gonna take the court two weeks to decide if it should be taught."' I. INTRODUCTION Since Charles Darwin published The Origin of Species in 1859,2 religious fundamentalists have waged war against the book's evolu- tionary teachings.' Recognizing that the courts will not allow the teaching of evolution to be suppressed,4 fundamentalists no longer 1. Statement by an anonymous observer at the Arkansas creation-evolution trial. D. NELKIN, THE CREATION CONTROVERSY - SCIENCE OR SCRIPTURE IN THE SCHOOLS 137 (1982). 2. The theory of evolution credited to Darwin (1809-1882) is that all forms of advanced life inhabiting the earth originated as lower forms of life, which ascended to their current status in a natural selection. Note, The Constitutional Issues Surrounding the Science-Religion Conflict in Public Schools: The Anti-Evolution Controversy, 10 PEPPERDINE L. REV. 461, 463 (1983). 3. "In 1925, fundamentalists and evolutionists first clashed in court at the crimi- nal trial of John Scopes. Scopes, a Tennessee schoolteacher, was convicted of violating a state law prohibiting the teaching of evolution." Levit, Creationism, Evolution and the First Amendment: The Limits of ConstitutionallyPermissible Scientific Inquiry, 14 J.L. & EDUC. 211, 211 (1985). The law was upheld by the Tennessee Supreme Court. Scopes v. State, 154 Tenn. 105, 289 S.W. 363 (1927). 4. Forty years after the Scopes trial, the United States Supreme Court held that the prohibition of the teaching of evolution violated the first amendment. Epperson v. attempt to eradicate evolution instruction in the public schools. In- stead, fundamentalists now seek equal time for their views by initiat- ing balanced treatment acts in state legislatures. Fundamentalists posit a new theory, "creation science, ' 5 which they believe scientifi- cally explains how a supernatural force created life on earth in the recent past. They contend that since creationism and evolution both belong in the realm of science, both should be given balanced treat- ment in public elementary and secondary school instruction. Although creation-science has been vehemently attacked by scien- tists,7 creationists have initiated a flurry of legislative and judicial action and creationism has become an increasingly significant issue in education. From 1980 to 1985, creationists introduced equal time legislation in nineteen states. 8 One of those states was Louisiana, in which the 1981 Balanced Treatment for Creation-Science and Evolution in Public School Instruction Act9 gave rise to Edwards v. Aguillard.10 The Act prohibited the teaching of evolution in public schools un- less equal instruction was given in creation-science. The United States Supreme Court held that the Act violated the establishment clause of the first amendment, which guarantees separation of church and state, because it lacked a clear secular purpose, as re- Arkansas, 393 U.S. 97 (1968). See infra notes 28-33 and accompanying text. 5. For a more detailed discussion of creation-science, see infra notes 111-37 and accompanying text. 6. This Note does not cover the post-secondary school setting. A different stan- dard of concern for sectarian influence applies in universities due to the greater knowl- edge and maturity of college students. See Tilton v. Richardson, 403 U.S. 672, 686 (1971) (finding college students less vulnerable to coercive aspects of religion courses). 7. The Council of The American Physical Society, The American Geological Institute, the National Academy of Sciences, and the National Association of Biology Teachers have all protested the teaching of creationism as science in public schools. Mainstream Scientists Respond to Creationists, PHYSICS TODAY 53 (Feb. 1982). "To those who are trained in science, creationism seems like a bad dream, a sudden reliving of a nightmare, a renewed march of an army of the night risen to challenge free thought and enlightenment." Asimov, The 'Threat' of Creationism, N.Y. Times, June 14, 1981, § 6 (Magazine), at 90. Creation-science has also been characterized as "forced imposition of religious doc- trine, disguised as science, into the science textbooks." Mayer, Merrill, Ost, Stebbins & Welch, Statements by Scientists in the California Textbook Dispute, 34 AM. BIOLOGY TCHR. 411, 415 (1972). It has been further called the "smuggling of religious dogma into classrooms in a scientific Trojan horse." Mayer, Creationism: A Masquerade, 36 AM. BIOLOGY TCHR. 245, 246 (1974). See also Scientists Confront Creationists (L. Godfrey ed. 1983); D. NELKIN, supra note 1; D. FUTUYMA, SCIENCE ON TRIAL - THE CASE FOR EVOLUTION (1983). But see Leedes, Monkeying Around With The Establishment Clause and Bashing Creation-Science, 22 U. RICH. L. REv. 149 (1988). "I simply object to the twin presumptions that creation-scientists are all irrationally driven by a mono- lithic Christian fundamentalism, and that all creation-science courses are the same." Id. at 180. 8. Levit, supra note 3, at 212. 9. See infra note 75 and accompanying text. 10. 107 S.Ct. 2573 (1987). [vO. 25: 829. 1988] Edwards v. Aguillard SAN DIEGO LAW'REVIEW quired by the first prong of the Lemon test."' The Court argued that the legislative history of the Act showed that the Act's purpose was to restructure the science curriculum to conform with a particular religious viewpoint, thus violating the establishment clause. This Note first discusses the legal background of the creation-sci- ence/evolution debate in cases prior to Edwards. Next, it reviews the United States Supreme Court's decision in Edwards and analyzes the method used by the Court to strike down the Louisiana balanced treatment statute. Then, based on methodology used by the Edwards Court, the Note examines whether creation-science is religion or sci- ence and thus whether it violates the Constitution's establishment clause prohibition against advancement of religion in public schools. The author concludes that creation science is inherently religious and that it is highly unlikely balanced treatment acts will ever sur- vive under the establishment clause of the first amendment. How- ever, creationists may be able to argue their case under the free ex- ercise clause. II. LEGAL BACKGROUND OF CREATIONISM V. EVOLUTION IN PUBLIC SCHOOL CURRICULA A. History of Creation-Science Three large school districts in the country have adopted the policy that creationism be presented along with evolution in the science curriculum.' 2 State textbook commissions in three states have added to the approved list of textbooks general or supplementary texts that present a model of creation. 3 In many rural school districts, crea- wish of the school board tionism is taught routinely, since that 4is the and the majority of the community.' California has been a leading center of activity for the current creationist movement. The state's public school textbook sales ac- count for about ten percent of the total United States market, and thus exert great leverage on textbook publishers throughout the na- 11. See infra notes 23-24 and accompanying text. 12. Dallas, Texas; Chicago, Illinois, and Atlanta, Georgia. D. NELKIN, supra note 1, at 94. Two states, Texas and California, compel presentation of evolution as theory rather than fact. Note, Freedom of Religion and Science Instruction in Public Schools, 87 YALE L.J. 515, 516-17 n.8 (1978). 13. Georgia, Mississippi and Indiana. D. NELKIN, supra note 1, at 94. 14. N.Y. Times, Mar. 7, 1982, § 4, at 9, col. 1 (midw. ed.). See also Comment, Accommodating Religion in the PublicSchools, 59 NEB. L. REV. 425, 446 (1980) (two- thirds of Nebraska teachers polled present Biblical Creation in class). tion.'5 Two of the leading creationist organizations in the country are located in San Diego, California: The Institute for Creation Re- search (ICR), affiliated with the Christian Heritage College,16 and the Creation-Science Research Center (CSRC).'7 ICR, CSRC, and other creationist organizations in California have had some successes. In 1979, they convinced the State Board of Education to recommend that evolution be taught as theory rather than scientific fact,18 and in 1981, the California Superior Court in Sacramento ordered the Board to disseminate that policy to all school districts and publishers."9 Generally, the states and local school boards have the authority to determine the curriculum taught in the public schools. The courts, however, may strike down state educational requirements when they conflict with constitutional rights.2 Creationists have used both the 15. Moore, Creationism in California, 103 DAEDALUS 173, 175 (1974). 16. ICR is the research division of Christian Heritage College, founded in 1970. Through its Creation-Life Publishing Company, it is the leading publisher of creation- science material. The institute runs radio programs, conferences, workshops and expedi- tions to find geological evidence that the earth is young. ICR also publishes a monthly magazine, ACTS & FACTS, which contains technical articles and current creationist news, and the IMPACT SERIES, containing articles on science/creation. D. NELKIN, supra note 1, at 80-83. The ICR president is Henry M. Morris, Ph.D.; its Vice President is Duane T. Gish, Ph.D.; and its Director of Curriculum Development and Head of the Science Education Department is Richard B. Bliss, Ed.D. All have published many books and articles con- cerning creationism. There are also six other scientist faculty members. Wendell R. Bird is a staff attorney. He is the author of the Yale article cited supra note 12, a drafter of the Arkansas balanced treatment act (see infra notes 54-74 and accompanying text) and also intervened for Louisiana as a Special Assistant Attorney General in Aguillard v. Edwards. It was Morris who first proposed in 1961 the idea of equal time for creationism and evolution.
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