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New Law Review Article Surveys Case Law on Teaching Evolution

Casey Luskin

In May, pro-Darwin-only education advocates issued a press release lamenting that “25 percent of biology teachers do not know it is unconstitutional to teach creationism.” Then last month the National Center for Science Education (NCSE) publicized its new “Creationism and the Law” web page, which states that “Since 1968…, U.S. courts have consistently held that ‘creationism’ is a particular religious viewpoint and that teaching it in public schools would violate the First Amendment of the Constitution.” While these statements are legally correct, they leave out a crucial point of law that the NCSE may not wish to publicize: “scientific critiques of prevailing scientific theories [may] be taught provided that such curricula are enacted with the clear secular intent of enhancing the effectiveness of science instruction.” That latter quote comes from the abstract of a new law review article, “Does Challenging Darwin Create Constitutional Jeopardy? A Comprehensive Survey of Case Law Regarding the Teaching of Biological Origins,” that I recently published in the Hamline Law Review (Vol. 32(1):1-64 (Winter, 2009)).

Who Is This Article For?

I wrote this recent Hamline University Law Review article as a primer for anyone — but especially for an attorney or legal scholar — who seeks a quick yet comprehensive Matrix-style brain-upload of the case law related to the evolution debate. My hope is also that the article will prove useful in its attempt to survey all of the major court cases dealing with education on biological origins, and most of the minor cases as well. The article surveys 21 cases (the full list is given below), and with each, there is an objective review of the facts followed by some commentary giving my view of the important legal implications of that decision.

Readers will find that the article distinguishes itself from advocacy pieces put out by the Darwin lobby. It’s a serious review of current law, dealing frankly with the actual case law that supports evolution, such as the extensive case law supporting the constitutionality of teaching evolution and the numerous cases that expound upon the unconstitutionality of teaching creationism. It also delves into something that the NCSE and the rest of Darwin’s public defenders are probably hesitant to admit: not one court case finds that it is illegal to engage in scientific critique of evolution in public schools, and significant authority (including a number of long-standing educational policies requiring critical analysis of evolution that the Darwin lobby has lacked the stomach to challenge) supports the constitutionality of such.

Why Does the Darwin Lobby Basically Ignore the Law on Hot Educational Policy Questions?

Despite what you may read in the media, the big debate in public schools today isn’t about teaching creationism, and it isn’t even about teaching intelligent design (which is of course different from creationism). The real question that most commonly faces schools is whether to strictly indoctrinate students in Darwinian evolution, or whether instead to inform them about the scientific evidence both for and against modern Darwinism.

Given the actual nature of most policy debates, why does the evolution lobby spend so much time talking about how courts have banned the teaching of creationism? It’s simple: They want you to think that anything that challenges evolution entails teaching creationism, which in turn would imply that teaching anything but the pro-evolutionary viewpoint is unconstitutional. I submit that not only is this a wholly inaccurate representation of the law, but it entails an abuse of the First Amendment.

The First Amendment was intended to protect both freedom of speech and freedom of religion. The latter means, in part, that the government cannot adopt policies whose primary effect advances religion. That is why courts have rightly banned the advocacy of creationism in public schools. But the Darwin lobby tries to relabel anything that challenges evolution as “creationism,” thereby twisting the First Amendment, reversing its meaning, as if it had been intended as a tool for censorship. While creationism should not be advocated in public schools, there is nothing illegal about teaching students about legitimate scientific challenges to modern evolutionary biology, a pedagogical approach that is quite different from teaching creationism, has clear secular educational benefits, and that should be supported by anyone who truly upholds freedom of scientific inquiry.

The abstract of the article is below, followed by a list of the cases I survey.

Abstract: The teaching of biological origins in public schools remains a contentious scientific, cultural, and legal debate. With the increase of public interest in this topic, it is essential for attorneys, legal scholars, and educational authorities to have an awareness of the full breadth of case law on this issue. Yet at present, a comprehensive collation and summary of the relevant cases is absent from the literature. Moreover, few have bothered to engage in a careful review of the case law to determine if evolution actually is beyond scrutiny in public schools. This article attempts to exhaustively survey the case law relevant to the teaching of biological origins, dividing the cases into three major categories: (1) Cases upholding the right to teach about evolution; (2) Cases rejecting the teaching of alternatives to evolution; and (3) Cases rejecting disclaimers regarding the teaching of evolution. The range of constitutionally permissible policies for teaching evolution can also be understood by studying policies that have not engendered lawsuits. Twenty-one cases will be reviewed, as well as various policies that have not faced legal challenges, revealing that while courts have firmly upheld the rights of educators to teach evolution and have rejected attempts to teach creationism, none of these cases stands for the proposition that a curriculum that teaches scientific critiques of evolution would necessarily place a school board in constitutional jeopardy. Indeed, case law and the public policy history of this issue suggest precisely the opposite: curricular policies in public schools need not unilaterally support evolution. Rather, as the U.S. Supreme Court has stated, “scientific critiques of prevailing scientific theories [may] be taught” provided that such curricula are enacted with the “clear secular intent of enhancing the effectiveness of science instruction.” Educators that choose to improve science education by teaching both the scientific evidence supporting modern Darwinian theory, as well as the scientific evidence that challenges this view, can rest assured that they are on firm legal ground and that Darwin himself may even be smiling approvingly from whichever realm of the afterlife he resides today.

Cases surveyed:
1. Scopes v. State
2. Epperson v. Arkansas
3. Wright v. Houston Independent School District
4. Moore v. Gaston County Board of Education
5. Crowley v. Smithsonian Institution
6. Segraves v. California
7. Peloza v. Capistrano Independent Unified School District
8. Moeller v. Shrenko
9. LeVake v. Independent School District
10. Hendren v. Campbell
11. McLean v. Arkansas Board of Education
12. Edwards v. Aguillard
13. Webster v. New Lennox School District
14. Bishop v. Aronov
15. Helland v. South Bend Community School Corporation
16. Kitzmiller v. Dover
17. Hurst v. Newman
18. Daniel v. Waters
19. Steele v. Waters
20. Freiler v. Tangipahoa Parish Board of Education
21. Selman v. Cobb County Board of Education


Casey Luskin

Associate Director, Center for Science and Culture
Casey Luskin is a geologist and an attorney with graduate degrees in science and law, giving him expertise in both the scientific and legal dimensions of the debate over evolution. He earned his PhD in Geology from the University of Johannesburg, and BS and MS degrees in Earth Sciences from the University of California, San Diego, where he studied evolution extensively at both the graduate and undergraduate levels. His law degree is from the University of San Diego, where he focused his studies on First Amendment law, education law, and environmental law.



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