Overview
Recently, two newspaper articles caught my
attention. Appearing on the front page of The Washington
Post, the first one described how a subcommittee of the
Kansas State Board of Education heard testimony by scientists
who support the idea of intelligent design being included
in public school curriculum. According to the intelligent
design proponents, reports Peter Slevin, “modern Darwinian
theory relies too much on unproven reasoning. Gaps in
science…leave open the possibility that a creator, or an
unidentified ‘designing mind’ is responsible for earthly
development.” As one researcher who supports the intelligent
design theory suggested, “DNA itself is the work of an
intelligent being.” It therefore follows, argued the same
researcher, that students in public schools “should be told
that.” Slevin The Washington Post (May 6, 2005) Kansas is
considering adding intelligent design to its statewide
science standards.
The second article appeared one week later
in the Richmond Times Dispatch. This piece
described a local school board primary election in Pennsylvania
where a major issue dividing the candidates is “the teaching of
evolution and the origin of life.” According to article, the
Dover, Pennsylvania, school board voted (6 to 3) last October
“to require all ninth grade students to be told about
intelligent design when they learn about evolution in biology
class.” In the reporter’s opinion the current primary election
“promises to be a battle royal among the 18 candidates evenly
divided over the intelligent design mandate….” The article also
reports that the school board’s intelligent design policy is the
subject of a federal court suit in which eight families claim,
among other things, that the intelligent design policy “is
merely biblical creationism disguised in secular language, and
has no place in a science classroom.” According the school
board, however, “it merely wants students to know about
weaknesses in Charles Darwin’s theory.” Raffaele, Richmond
Times Dispatch (May 14, 2005)
Will the teaching of evolution in public
school classrooms once again, as in years past, become a hot
issue in school law? In this writer’s opinion an affirmative
answer is possible. While two newspaper articles do not present
enough evidence that a major controversy is imminent, the
teaching of evolution has been and remains a volatile topic in
some places. To some, it is a subject that pits the liberty
interests of parents to decide what is best for their children
squarely against the legal prerogatives of school officials to
decide what should or should not be required in the public
school curriculum. As one legal source reminds us, “[t]he most
common objections to curriculum and instruction have had a
religious basis. Perhaps the best known issue is parental
objection, on religious grounds, to the inclusion of the
theories of natural evolution in the school curriculum.”
Fischer, Schimmel, and Kelly (1999)
The purpose of this commentary is to look
back at the case law involving the teaching of evolution in
public schools, in an effort to seek out guidance for local
educational policy formulation.
Scopes v Tennessee (1927).
The earliest and most famous court case involving the teaching
of evolution involved the trial of John T. Scopes, a teacher who
had taught his students that man descended from lower forms of
animals. In a highly publicized criminal trial involving lawyers
William Jennings Bryan and Clarence Darrow, and one that was
decided on a technicality, the state court spoke directly to
Scopes’ role as a public school teacher. In the court’s view,
while Mr. Scopes could believe and teach natural evolution
outside of school, he had no right to teach such a doctrine in
school. So long as he served the state he had to abide by the
state’s requirements. “His liberty, his privilege, his immunity
to teach and proclaim the theory of evolution elsewhere than in
the service of the state, was in no way touched by this law.”
Scopes v Tennessee (1927)
The United States Supreme Court Speaks.
More than forty-years after the Scopes trial, the United States
Supreme Court held the State of Arkansas’ anti-evolution statute
unconstitutional. The statute in question was one passed in
1928. In what is best described as a religion case, the high
court ruled that the First Amendment does not permit a state to
require that teaching and learning in public schools must be
tailored to the principles and prohibitions of any sect or
dogma.
It was clear to the court’s majority that
the state statute was enacted to protect the preeminence of the
teaching of the Biblical version of the creation of mankind in
the public school curriculum. “In the present case,” said
Justice Fortas, “there can be no doubt that Arkansas has sought
to prevent its teachers from discussing the theory of evolution
because it is contrary to the belief of some that the Book of
Genesis must be the exclusive source of doctrine as to the
origin of man.” Epperson v State (1968)
In the wake of the Supreme Court’s
decision, the State of Mississippi’s highest court overturned
that State’s anti-evolution statute. In Smith v State
(1970) the court ruled that the statute violated the Free
Exercise Clause of the First Amendment. Three years later, the
United States Court of Appeals for the Fifth Circuit upheld a
state law that permitted students to leave the classroom during
presentations (e.g., discussions of evolution) that
offend their religious beliefs. In the court’s view, “[t]eachers
of science in the public schools should not be expected to avoid
the discussion of every scientific issue on which some religion
claims expertise.” Wright v Houston I.S.D. (1973)
Related Issues and Case Law
The lack of agreed upon definitions of the
terms curriculum and religion often produces
constitutional and legal issues, especially where both concepts
are present and have become intermingled. Bosher, Kaminski, and
Vacca (2004) In the past, there have been several court cases
where a constitutional issue has grown out of efforts to either
integrate into the public forum or to secularize otherwise
religious symbols, scenes, objects, exercises, or practices.
Lynch v Donnelly (1984) In such cases courts consistently
apply Lemon v Kurtzman (1971). More specifically, judges
search for evidence of a truly secular purpose and reject
efforts by legislators and state policy makers to disguise an
underlying religious intent. Vacca and Bosher (2003)
In 1975, the United States Court of Appeals
for the Sixth Circuit held that a Tennessee statute that
required a disclaimer to be used any time evolution was
presented or discussed in public schools. The disclaimer read
that evolution was based on theory and not scientific fact. The
statute also required the inclusion of the Genesis version of
the creation of mankind without the inclusion of the disclaimer.
The appellate court held the state statute violated the First
Amendment. In the court’s view the statute gave preferential
treatment to the Book of Genesis. Daniel v Walters (1975)
McLean v Arkansas (1982) contained a
similar set of facts. McLean involved a state statute
that required the presentation of the Biblical version of
creation each time evolution was presented to students. A
federal district court judge declared the statute
unconstitutional. In his opinion the equal or balanced
treatment statute violated the Establishment Clause of the
First Amendment. That same year, a public school teacher in
South Dakota was terminated from employment because he spent too
much instructional time discussing evolution and
creationism and not enough time (almost to the exclusion of)
teaching the general biology curriculum. Dale v Board of
Education (S.D. 1982) More than a decade later, the Court of
Appeals for the Ninth Circuit declared that a biology teacher
did not have the professional prerogative to omit the teaching
of evolution in his classroom simply because it was different
from his own religious beliefs. Peloza v Capistrano
U.S.D. (9th Cir. 1994)
Two decades after the Epperson
(1968), the United States Supreme Court had a chance to make
another definite ruling on the subject. This time a Louisiana
statute requiring every public school that included evolution
in the curriculum to also teach creation science was
before the high court. Both a federal district court and an
appellate court had struck down the law. The Supreme Court
agreed with the lower courts by a vote of 7 to 2. Justice
Brennan, for the majority, said that the Louisiana statute
violated the First Amendment’s principle of neutrality, because
it was written to advance religion. The purpose of the statute,
he said, was “to advance the religious viewpoint that a
supernatural being created mankind….” In his view creationism
is a “religious theory and not a scientific theory.” Justice
Scalia, in dissent, characterized the majority opinion as a
“repressive policy toward Christian fundamentalists.” He argued
that there should be opportunities for evidence against
evolution to be presented in the schools. Edwards v Aguillard
(1987)
Freiler v Tangipahoa Parish Board of
Education (5th Cir. 2000) involved a Louisiana
state law that mandated a disclaimer be read to all students in
elementary and secondary schools every time evolution was
discussed. The disclaimer emphasized that evolution was a
scientific theory and was not intended to influence or dissuade
the Biblical version of creation or any other concept. The
court applied the Lemon test and declared the state law
unconstitutional. The disclaimer policy violated the First
Amendment’s Establishment Clause.
Finally, two other court decisions (not
specifically involving evolution) will prove informative and
helpful to educational policy makers. One decision comes from
the Eleventh Circuit. In a Tennessee case, plaintiff parents
objected on First Amendment Free Exercise Clause grounds to the
assignment of stories contained in required textbooks. In their
view, the stories might cause their children to adopt “feminist,
humanist, pacifist, anti-Christian, vegetarian, or one-world
government views.” While the parents prevailed at trial, the
appellate court rejected their claims and reversed the lower
court decision. The stories may be objectionable, said the
court, but there is no evidence of inculcation of ideas, and the
students did not have to affirm or deny a religious belief.
Mozert v Hawkins County (6th Cir. 1987)
The second decision is from the United
States Supreme Court and involves graduation prayer. In Lee v
Weisman (1992), Justice Kennedy created the “coercion”
test. More specifically he cautioned public school officials not
to coerce any student to support or participate in a
“religious exercise.” Both Lee and Mozert (above),
when taken together, make a strong case for providing students
with an “opt-out’ or “opt in” alternative where class
discussions or other in-school activities may in some way run
counter to their personal religious beliefs.
Policy Implications
It is difficult to predict if and when the
teaching of evolution in public school classrooms might once
again become a source of heated debate at local school board
meetings. However, if the situations in Kansas and Pennsylvania
cited at the beginning of this commentary are evidence of things
to come, it behooves local educational policy makers to be
proactive. What follow are some suggestions gleaned from past
case law. These suggestions are offered for consideration as
current policies are audited and new ones are drafted.
School board policies must make it clear
that:
- It is
the intent of the board of education (the board) to comply
with all state mandated curricular requirements.
- The
board is, by law, the final decision-maker regarding the
curriculum in each school.
- The
superintendent and his/her staff, school principals, and
classroom teachers occupy advisory positions to the board in
all curriculum-related decisions.
- The
board expects all principals, classroom teachers, and other
staff to implement the school system’s official curriculum.
- The
board expects that principals, classroom teachers, and other
staff members will refrain from presenting and discussing
their personal political, social, or religious views with
students.
- In
situations where alternate theories and doctrines are
included in class discussions, projects, or activities, the
board expects that these matters will be directly related
and appropriate to the subject of the class.
- The
board maintains open and direct channels of communication
with parents on all curriculum-related matters.
- The
board, administrators, classroom teachers, and all other
staff members will not ignore the personal and bona fide
religious beliefs of parents and students, and will work to
accommodate their diverse opinions in curricular
decision-making.
- No
student will be punished solely for expressing his/her
personal religious beliefs in class discussions, activities,
and projects; or, when participating in school-related
activities.
- The
board maintains “opt-out” and “opt-in” alternatives for
students whose bona fide religious beliefs require that they
not participate in particular class discussions, activities,
and projects; or, in other school-related activities.
A Final Thought. In the recent
edition of NSBA Legal Clips it is reported that a pilot
sex education program in the Montgomery County, Maryland, School
System has been taken into a federal district court. Objecting
to the program on “religious grounds,” plaintiffs in the suit
have, among other things, focused their objections on a portion
of the program that discusses “sexual orientation” and contains
“materials that refute the idea that sexual orientation is
immoral and a choice.” NSBA (May 19, 2005)
In this writer’s opinion the Maryland sex
education dispute, when added to the resurgence of the evolution
debate in Kansas and Pennsylvania, signals a renewed focus on
the content of public school curriculum. Past experience tells
us that local school boards, administrators, and classroom
teachers must be prepared for the challenges to come.
Resources Cited
Bosher, William C., J., Kaminski, Kate R.,
and Vacca, Richard S. THE SCHOOL LAW HANDBOOK (ASCD,
2004)
Dale v Board of Education, 316 N.W.2d 108
(S.D. 1982)
Daniel v Walters, 515 F.2d 485 (6th
Cir. 1975)
Edwards v Aguillard, 482 U.S. 578 (1987)
Epperson v State, 363 U.S. 97 (1968)
Fischer, Louis, Schimmel, David, and Kelly,
Cynthia, TEACHERS AND THE LAW, Fifth Edition (Longman, 1999)
Freiler v Tangipahoa Parish School Board,
185 F.3d 337 (5th Cir. 1999), cert. denied,
120 S.Ct. 2706 (2000)
Lee v Weisman, 112 S.Ct. 2648 (1992)
Lemon v Kurtzman, 403 U.S. 602 (1971)
Lynch v Donnelly, 465 U.S. 668 (1984)
McLean v Arkansas, 529 F.Supp. 1255 (E.D.
Ark. 1982)
Mozert v Hawkins County, 827 F.2d 1058 (6th
Cir. 1987)
NASB Legal Clips (May 19, 2005)
Peloza v Capistrano U.S.D., 37 F.3d. 517 (9th
Cir. 1994), cert. denied, 155 S.Ct. 2640 (1995)
Raffaele, Martha, “Candidates Divided on
Evolution,” Richmond Times Dispatch (May 14,
2005)
Scopes v Tennessee, 289 S.W. 363 (1922)
Slevin, Peter, “In Kansas, Debate on
Evolution Turns Tart,” The Washington Post (May 6, 2005)
Smith v State, 242 So.2d 692 (Miss. 1970)
Vacca, Richard S. and Bosher, William C.,
Jr., LAW AND EDUCATION: CONTEMPORARY ISSUES AND COURT DECISIONS,
Sixth Edition (LexisNexis, 2003)
Wright v Houston I.S.D., 486 F.2d 137 (5th
Cir. 1973)
Richard S. Vacca
Senior Fellow CEPI
Note: The views expressed in this
commentary are those of the author. |
