LEGAL OPINION MEMORANDUM
On Legal Issues Involved in the Teaching of Evolution and Creationism
in Americas Public Schools
The Christian Law Association
May creationism be legally taught in a public school science setting?
While creationism may not legally be taught in Americas government schools, nothing prohibits public school teachers from presenting legitimate evidence in science class that both supports and refutes Darwinism, even if such evidence would tend to support the religious theory of creation.
The United States Supreme Court has held that scientific creationism is a religion, while it does not regard evolution as religious. This was the Courts determination in the case of Edwards v. Aquillard, 482 U.S. 578 (1987). The key case regarding the teaching of religion in public schools is Abington v. Schempp, 374 U.S. 203 (1963), which prohibited the devotional use of religious materials in public school classrooms. At the same time, however, the Court affirmed the continuing educational use of religious materials, presented objectively.
The Court said:
Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment.
Therefore, religion, including the religious belief in creation, is appropriately brought into the public school curriculum wherever it naturally arisesas it does in the study of origins. Scientific evidence pertaining to all theories of origin can be objectively overviewed in a public school science class without the teacher crossing the constitutional line of proselytizing or devotional use of religion. In fact, the student who is only taught to blindly accept the unproven theory of Darwinian macroevolution despite mounting scientific evidence against it is poorly served by the school district.
The real issue regarding the teaching of evolution in public schools is not a legal question. The real question is whether a science teacher who does not recognize that evolution is merely a theory and not a scientifically proven fact is qualified to teach it in a public school science class. Public school teachers should be required to keep up with current scientific data on evolutionary theories of macroevolution. One good starting point for a teacher to update his or her skills would be to read the significant work of Dr. Michael Behe of Lehigh University, who has effectively challenged Darwinian theories based on recent scientific data in his book, Darwins Black Box. Dr. Behe teaches biochemistry and molecular biology at Lehigh University in Bethlehem, Pennsylvania. In his book, Dr. Behe spells out his theory of "irreducible complexity." Both the book and the theory were favorably reviewed in the New York Times and Dr. Behe was himself asked to produce a column for the Times outlining his theory. Public school teachers of evolutionary theory should be required to keep up with such new information.
Even before Dr. Behes book appeared, Dr. Charles Thaxton was the first scientist to propose the theory of "intelligent design" as an alternative to evolution. The forward to Dr. Thaxtons groundbreaking book was written by a prominent atheistic scientist. Dr. Thaxton, who now teaches in Czechoslovakia, first presented his views on The Mystery of the Origin of Life at the state university at Austin, Texas, in 1989. He demonstrated that when scientists attempt to prove evolutionary theory, they are required to manipulate the building blocks of life in a manner that actually disproves evolution and points toward the necessity for an intelligent designer of the processes of life. This theory is compatible with religious views of creation, but not with Darwinism. It is this sort of evidence that must be presented to school children in order to educate them sufficiently in the most modern views of evolution. Instead of presenting a religious theory, public school teachers need only present these new scientific evidences and let the students evaluate which theories of origin they best support. Information about what various religions believe about the origins of life can be presented in an objective manner. Evolutionary theories can be weighed objectively against the emerging evidence to see whether they hold up. This is not teaching religion, but teaching good science.
While Dr. Behe and Dr. Thaxton never mention creationism, their theories support the thesis that some intelligent designer must be linked to the origin of life in much the same way that computer programs can be shown to be intelligently designed. Dr. Phillip Johnson and Charles Colson have both authored numerous books analyzing and debunking myths associated with evolution. Mr. Colsons new book, How Now Shall We Live, focuses on the fact that evolution is primarily a philosophy that undergirds a specific secular world view, and is not a science at all.
Evolutions hold on academe is weakening and will likely continue to wan rapidly as new scientific evidence regarding DNA and the building blocks of life are unlocked. The new scientific evidence presented by Dr. Behe and Dr. Thaxton has not been refuted by evolutionary scientists. Dr. Behe notes that Darwin himself recognized that if some irreducibly complex organism were identified that did not permit gradual evolution, the theory of evolution would become untenable. Dr. Behe has done exactly that in his work on cellular biology. Public school boards need to mandate that evolution be taught by presenting both the scientific pros and cons. There is no question that such a curriculum would be constitutional. The new evidences are not based on God, but on science. Students would need to take the next step on their own if they choose to plug in God as the "intelligent designer." That is as far as teachers can constitutionally go at the present, but it is probably far enough.
The Kansas Board of Education recently voted to omit questions on evolution from the statewide science exam because they did not feel the state recommended science textbook, which only provided a positive view of evolution, was factual. The Supreme Court has never mandated that Darwinism must be taught as fact; nor have they ever prohibited science teachers from teaching scientific evidence disproving evolution to public school students. If such scientific evidence better supports religious views of the origin of life, there is no constitutional foul. Public school science teachers may constitutionally teach the fact that scientists are beginning to take a new critical look at evidence supporting evolution, which is an objective development in the field of science.
By any modern scientific measure, macroevolution is a theory, not a proven fact. Students who are not given arguments that both support and refute this theory are not being given a good science education. This issue transcends the question of whether the Supreme Court would ever permit the teaching of creationism in public schools. The issue really becomes whether public school science teachers are well or ill informed regarding their subject matter from a scientific perspective.
The United States Supreme Court struck down the State of Arkansas anti-evolution statute that prohibited the teaching of evolution in public schools. The Court found in Epperson v. Arkansas, 939 U.S. 97 (1968), that the primary purpose of the Arkansas statute was religious and had no objective secular or scientific basis. The Supreme Court ruled in Edwards v. Aquillard, 482 U.S. 578 (1987), that a state could not mandate the teaching of creationism by requiring that creation theories be taught whenever evolutionary theories were taught. But objective presentations of religious views, which are not devotional or proselytizing, have never been banned from the classroom where they logically fit as they do in any analysis of the origins of life.
There are two lower court cases where teachers were prohibited from presenting views contrary to evolution in a science class. In one, Peloza v. Capistrano Unified School Dist., 37 F.3d 517 (9th Cir. 1994), the teacher was combining religious proselytizing with teaching about creation in the classroom. In the other, Webster v. New Lenox School Dist., 917 F.2d 1004 (7th Cir. 1990), the issue was whether the teachers First Amendment rights were violated by the school curriculum policy regarding evolution. The court held that the teacher "had not been prohibited from teaching any nonevolutionary theories," but was merely prohibited from "religious advocacy." Id. at 1008.
Finally, it is entirely constitutional for a teacher to permit a student to bring his or her own religious perspective into the science classroom discussion. It is perfectly appropriate for a teacher to permit students to present scientific evidence against macroevolution, even if that evidence includes discussion of a religious perspective. It is not good educational policy to advocate a blind adherence to any particular evolutionary scheme. Furthermore, it is religious discrimination to prohibit students from expressing their religious viewpoints objectively in class. Teachers could set up student debates and other assignments where students were invited to evaluate the conflicting scientific evidence that is currently emerging.
The teacher is an agent of the state capable of violating the Establishment Clause if he or she brings religion into the classroom in a non-objective manner. The student, on the other hand, stands outside of an Establishment Clause analysis because the student is not an employee or agent of the state. With respect to student debates or discussions, the issue is placed squarely into a Free Speech analysis where the issues become religious discrimination and the free expression rights of students in school.
The United States Supreme Court held in the case of Bd. Of Educ. V. Mergens, 496 U.S. 226, 250 (1990), that "there is a crucial difference between government speech endorsing religion which the Establishment Clause forbids, and private speech endorsing religion which the Free Exercise and Free Speech Clauses protect." While the teachers speech is government speech, a students speech is private speech protected by the Free Speech Clause even in the public school classroom.
Guidelines for Religious Freedom in Public Schools, was a document that was first issued to all school districts in the United States by President Clinton, Attorney General Reno and Secretary of Education Riley in August, 1995. It was reissued by Secretary Riley in May, 1998. In the section regarding the rights of students with respect to class assignments the document states:
Student Assignments: Students may express their beliefs about religion in the form of homework, artwork and other written and oral assignments free of discrimination based on the religious content of their submissions. Such home and classroom work should be judged by ordinary academic standards of substance and relevance, and against other legitimate pedagogical concerns identified by the school.
It is not a legitimate pedagogical concern for a teacher to prohibit a student from expressing scientific and objective information that refutes evolution, even if such information contains a religious viewpoint. Every school should have a copy of the Religious Expression Guidelines in its school library and educators should abide by its legal conclusions. The Guidelines reflect the current state of the law.
A teacher does not engage in prohibited religious speech when the teacher presents credible scientific information in a public school science class that refutes the theory of evolution. Similarly, a teacher does not violate the Establishment Clause when he or she teaches objectively about various religious beliefs regarding origins. Furthermore, it would be a violation of the First Amendment right of Free Speech in public school if a teacher prohibited students from doing assignments or making class presentations analyzing which theories of origins best fit with current scientific evidencewhether those theories are secular or religious. Teachers may not chill students exercise of their own constitutional rights of free speech in completing school assignments. A science teacher may not teach the religion of creationism in the classroom, but may present evidences to objectively support and refute all theories of the origins of life and the universe.
© 2000, Christian Law Association