r What are the Legal Issues Associated with the Teaching of Origins Science?

Joe Renick

Executive Director

IDnet-NM

Updated January 15, 2005

Disclaimer:  The following is not a legal opinion.  It is a summary of key findings based on my personal studies of the references cited at the end of this essay.

  *******

 Most Americans, including public school science teachers and school board members, have serious misconceptions about what the law permits in regard to the teaching of biological origins in public schools. The general perception is that the courts have ruled that the teaching of Creation Science is in violation of the Establishment Clause of the First Amendment but that Darwinian evolution is, in effect, the scientifically and legally endorsed creation story of America.  Since Intelligent Design (ID) is really nothing more than Creationism disguised as science, it too is unconstitutional.  

End of story.

While there is some truth to this perception it hardly tells the whole story…and it is in the rest of the story where we find hope.  It appears that the courts have spelled out a legal doctrine that actually makes some sense and sets up a legal framework that may give ID safe passage right into the science classroom.  Time will tell.

Shortly after the end of World War II the Supreme Court made a historic departure from the "Original Intent" of the religious establishment and free exercise clauses of the First Amendment to the Constitution, and launched into uncharted legal waters.  In the Court's search over the years for a coherent and rational doctrine, these waters have been severely muddied and it is through these waters that we must wade in our search for a rational understanding of what is constitutionally permissible regarding the teaching of biological origins in public schools. 

In spite of the muddy waters, recent examination of relevant court cases by legal scholars has revealed a surprisingly coherent set of legal principles that can be used to evaluate the constitutionality of various practices in which public education might engage.  A very brief summary of court findings that are pertinent to the question of origins science education is presented here.  Expert legal analyses may be found in the documents cited at the end of this essay.

The two most important cases concerning the teaching of origins science were the Supreme Court cases of Epperson v. Arkansas (1968) and Edwards v. Aquillard (1987).  There are perhaps a dozen or more other lower court cases that also bear on origins science education.  Edwards is probably the principal case for determining current legal precedent regarding the First Amendment and public education.

In Edwards the 7-2 majority struck down a Louisiana statute calling for balanced treatment of Creation Science and Evolution Science in public education.  The essence of the Louisiana statute was that no school was required to teach either theory but if one was taught, both had to be taught.  The rationale supporting the Court findings is tangled and complex but the end result was that the statute was struck down on the basis that it was in violation of the Establishment Clause of the First Amendment.

The principle findings of Edwards were important and viewed as a great victory for evolution in that the ruling was accompanied by the perception that evolutionary theory had in effect been endorsed by the highest court in the land.  However, in the process of throwing out the Louisiana statute, the Court also elaborated extensively on its opinion regarding the meaning and intended effect of First Amendment Law for public education.

Four important findings of the courts that bear of the current issues in science education in public schools are summarized as follows:

(1) With respect to religious and philosophical views, strict neutrality must be enforced in public education.

"Government in our democracy, state and nation, must be neutral in matters of religious theory, doctrine, and practice.  It may not be hostile to any religion or to the advocacy of no-religion; and it may not aid, or foster or promote one religion or religious theory against another or even against the militant opposite.  The First Amendment mandates government neutrality between religion and religion, and between religion and non-religion."  (Epperson v. Arkansas)

 The requirement for constitutional neutrality prohibits a state-sponsored ideology of any kind...religious or otherwise.

 (2) The religious or philosophical implications of a theory of biological origins are irrelevant to its legal status under the First Amendment. 

"...a decision respecting the subject matter to be taught in public schools does not violate the Establishment clause simply because the material to be taught 'happens to coincide or harmonize with the tenants of some or all religions.' "  (Edwards quoting lower court rulings) 

Thus the clear religious implications of ID simply do not bear upon ID's constitutionality.  And the clear anti-religious implications of evolution do not bear upon evolution's constitutionality.  On that basis, it is constitutionally permissible to teach both in public education. 

(3) It is permissible to critique evolutionary theory. 

The Edwards court was careful to point out that its opinion does "not imply that the legislature could never require that scientific critiques of prevailing scientific theories be taught."   

Or, in more straightforward language, the Edwards court did not prohibit the legislature from requiring scientific critique of prevailing theories.  

(4) The fact that ID has religious implications does not mean that it is fundamentally a religiously based theory, even if those implications appear to provide an answer to an 'ultimate' question.   Or, the accusation that ID is religion and not science does not stand up against court findings. 

The Malnak II court in Malnak v. Yogi (1977) wrote that "...certain isolated answers to 'ultimate' questions...are not necessarily religious answers...Thus, the so-called 'Big Bang' theory, an astronomical interpretation of the creation of the universe, may be said to answer an 'ultimate' question, but it is not, by itself, a 'religious' idea."   

Note the analogous relationship between Big Bang theory and Intelligent Design.  Both have religious implications and in particular, can even be viewed as powerful apologetics for the Genesis account of creation.  If Big Bang theory can be taught in public education, why not Intelligent Design?  What is the fundamental scientific distinction that mandates that they be treated differently?  Both are based on convincing observational evidence, not appeal to scriptural authority.  Early and mid-twentieth-century scientists were not looking for the Big Bang.  It emerged from the evidence.  Likewise, late twentieth-century scientists were not looking for design in nature.  It also emerged from the evidence.  

More from Malnak II,  

"...a science course may touch on many ultimate concerns, but it is unlikely to proffer a systematic series of answers to them that might begin to resemble a religion." 

Thus, an isolated scientific observation and the theory that emerges from that observation do not constitute the basis for a comprehensive religious belief system.  Other court cases also address the legal perspective of what is and what is not religion within the framework of a public education system that operates under the mandate of religious neutrality.   

With respect to its source, ID theory is rooted solidly in physical evidence that was discovered in the twentieth century, not by theologians or religious prophets or by searches of sacred scripture, but by secular scientists in secular universities and laboratories whose research was paid for by secular funds.  You can be sure that the last thing these scientists were searching for was evidence of intelligent design in nature.  Evidence of design in the cosmos and in biology did not have to be "teased" or "squeezed" out of their observations.  It "emerged".  It was simply "there" - unavoidable, inescapable, overwhelming...and beyond the explanation of materialistic science.

Summary

Under the First Amendment to the Constitution, neither the source of ID theory (scientific observations) nor its implications (the existence of a transcendent designer in nature) prevent it from being taught in public schools.  

References:
IDnet Legal Opinion
Teaching the Controversy

Beckwith, F.J., Law, Darwinism, and Public Education, Rowman & Littlefield Publishers Inc., Lanham, MD, 2003

< Back to Essays