I recently blogged about my law review article in University of St. Thomas Journal of Law & Public Policy.
Discovery Institute senior fellow David DeWolf, professor of law at Gonzaga University School of Law, also published an article in the same issue of that journal titled “The ‘Teach the Controversy’ Controversy.”
One of the most interesting components of Professor DeWolf’s article is his retelling of the adoption of the Santorum Amendment into the Conference Report of the No Child Left Behind Act of 2001.
Professor DeWolf’s full article can be seen here.
What follows is a section from DeWolf’s article. It is the first of two installments here on ENV that will tell the story of the Santorum Amendment and its role in the No Child Left Behind Act:
B. The Origin of the Amendment
On June 13, 2001, Senator Rick Santorum introduced an amendment to what would later be called the No Child Left Behind Act, asking for a “sense of the Senate” that federal law should encourage the an approach to scientific controversies that would eventually be known by the shorthand “teach the controversy.” Although the amendment was written in broad language, it included as an example of scientific controversy the topic of biological evolution. The resolution advocated that:
(1) good science education should prepare students to distinguish the data or testable theories of science from philosophical or religious claims that are made in the name of science; and (2) where biological evolution is taught, the curriculum should help students to understand why this subject generates so much continuing controversy, and should prepare the students to be informed participants in public discussions regarding the subject.43
C. The Adoption of the Santorum Amendment
The text of the Santorum Amendment was very brief; two sentences, in fact.54 After reading the proposed text of the amendment, Santorum made a brief statement in support of the language.55 When he finished, the amendment was supported by Senators Kennedy,56 Byrd,57 and Brownback.58 No Senator spoke in opposition to the amendment, and it ultimately passed by a vote of 91-8.59 The only Senators who voted against the amendment were Republicans who were generally opposed to federal control over public education.60
In short, there was much support, and virtually no substantive opposition, to the goals of the Santorum Amendment on the day it was introduced and passed. However, outside the Senate chamber, alarm bells were sounding. In August 2001, 96 organizations representing the science education establishment sent a letter to the chairs of the House and Senate education committees asking for the language in the Santorum Amendment to be struck from the final bill.61 Eugenie Scott, director of the National Center for Science Education, said that the amendment “will encourage the teaching of creationism. If a teacher is looking for a loophole or justification to bring non-scientific views into the curriculum, this amendment can be interpreted that way.”62 Some Senators who initially expressed support for the amendment were being taken to the woodshed by the science establishment and warned that what sounded evenhanded was in fact a form of stealth creationism.63 And the fact that the Santorum Amendment did not have a corresponding provision in the education bill that passed the House created an opportunity to reconsider its merits when the Conference Committee took up the task of reconciling the two bills.
D. The Conference Report
There were many issues to be resolved by the Conference Committee, but among the most contentious issues was (and is) the extent to which the federal government should be holding states accountable for academic performance. In a now familiar reversal of conservative and liberal positions, the Bush Administration argued for federal accountability, while liberals argued for states’ rights. The Santorum language was actually part of this larger struggle. For many conservatives, the acceptance of increased federal control was contingent upon a variety of protections against federally mandated orthodoxy. Protection for diversity of opinion with respect to such issues as biological evolution was a key limitation on what otherwise might be characterized as a major surrender of local autonomy.
Assuming some form of the Santorum amendment was desirable for the Senate conferees, it was unclear as to the form the language should take in the final version of the bill. The Santorum amendment was passed as a “sense of the Senate.” If it was to become the “sense of the Congress,” it could have just as easily been included in the Conference Report, which explains the way in which the conflicts between the House and Senate bills have been reconciled. While some conferees wanted to scuttle the language altogether, and others wanted to add the language to the bill itself; inclusion of the Santorum language in the Conference Report seemed like a reasonable compromise. Thus, the final language read as follows:
The conferees recognize that a quality science education should prepare students to distinguish the data and testable theories of science from religious or philosophical claims that are made in the name of science. Where topics are taught that may generate controversy, such as biological evolution, the curriculum should help students understand the full range of scientific views that exist, why such topics may generate controversy, and how scientific controversies can profoundly affect society.64
E. Spinning the Language
The ink was barely dry on the President’s signature when the respective spin operations began. Ken Miller claimed that it had been “struck from the bill.”65 Eugenie Scott was relieved that “the conference committee largely heeded the call of the officers of the scientific societies.”66 Dennis Hirsch, a law professor, claimed that even the language in the Conference Report “did not receive the endorsement of Congress as a whole.”67 By contrast, proponents of the “teach the controversy” principle, including Senator Santorum, greeted the Report language as a major victory.68 Who has the better of the argument?
Much depends upon what one perceives the original Santorum language as claiming. Kenneth Miller creates the impression that advocates of the Santorum language wanted it to mandate the teaching of alternatives to Darwinism, and by removing the language from the bill itself and placing it in the Conference Report, that disaster had been averted. By contrast, proponents of the Santorum language–at least Sen. Santorum himself, the Discovery Institute, and Phillip Johnson–never claimed that the Santorum language required a “teach the controversy” approach. Rather, the primary objective was to affirm the value of academic freedom and to remove the impression–assiduously cultivated by defenders of Darwinian orthodoxy–that any departure from Darwinian evolution was subject to grave constitutional infirmity. The continuing debate over the constitutionality of “teaching the controversy” is the very reason that the United States Senate initially adopted the Santorum language, and its significance–as an affirmation of Congressional policy–remains. By recognizing that there was a need for academic freedom in this area, the United States Congress would make it more difficult to say that this was simply a throwback to the Scopes trial of the 1920s.
In evaluating what happened to the language from the time it was approved by the Senate 918, and its appearance in the Conference Report,69 there are slight modifications of the language, but there is no question that the language in the Conference Report constitutes an endorsement. While the Report language is merely a recommendation, without mandating or forbidding any practice, the same is true of the original Santorum amendment.
It is also misleading to suggest that Conference Committee language is simply “an expression of a few members of the House and Senate about the law,”70 or that the Conference Committee Report “does not itself constitute a source of law.”71 Courts routinely treat Conference Committee Reports as authoritative statements of what legislation means. Report language, while not part of a statute in a technical sense, is typically regarded by Congress as on par with the authority of statutory language. Congress regularly provides substantive policy guidance to federal agencies through report language, including detailed instructions on how the money allocated in an appropriation bill should be spent. In fact, most earmarks for specific projects to be funded by Congressional appropriations bills are provided through report language rather than statutory language.72 Report language also typically provides authoritative guidance on how statutory language should be interpreted and applied. For example, report language elsewhere in the No Child Left Behind Act supplies detailed instructions for how the graduation rate statistics required by the Act should be calculated.73 Report language is considered so important that the President may choose to veto or approve bills based on their report language. In 1995, for example, President Clinton vetoed a bill dealing with securities litigation primarily because he objected to the bill’s report language.74 In 1996, President Clinton notified Congress of his intention to veto another bill in part because of its report language.75 And in 1998, President Clinton signed a bill after noting that his approval hinged on a statement inserted in the bill’s report language.76
Of course, the legal effect may depend upon where the language is located. If the language in the statute itself appears to require X, but language in a conference report expresses an intent not to require X, then the status of Congress’ intent as “mere legislative history” is obviously significant. For example, in City of Chicago v. Environmental Defense Fund,77 the Supreme Court held that language in the Resource Conservation and Recovery Act clearly authorized regulation of a municipal solid waste incinerator, despite language in the Committee Reports suggesting that Congress intended otherwise.78 By contrast, the examples cited previously demonstrate that Conference Report language is often used by courts as a supplement to statutory language itself and, so long as there is no conflict with the statutory language, is treated as part of the statute itself.
Applying these principles to the Santorum language, one cannot plausibly argue that moving the Santorum language from the bill itself to the Conference Report resulted in a substantial change in its legal effect. It would be one thing if the original Santorum language required recipients of federal funds to “teach the controversy” as a condition of receiving such funds. Then the “demotion” of the language to “mere Conference Report language” would have been significant. But the Santorum language was always an expression of Congressional intent–an endorsement of the educational value of a “teach the controversy” approach, not an effort to impose it by law.
(David K. DeWolf, “The ‘Teach the Controversy’ Controversy,” University of St. Thomas Journal of Law & Public Policy, Vol. VI (1): 326-353 (Fall, 2009).
[43.] Congressional Record, June 13, 2001.
[44.] No one spoke against the amendment; the only negative votes apparently came from conservative Senators who were not opposed to the principle of the Santorum language but were generally opposed to the federalization of education policy.
[45.] See text accompanying notes 54 to 59, infra.
[54.] 147 Cong. Rec. S6147, S6147-S6148 (daily ed. June 13, 2001) (statement of Sen. Santorum).
[56.] Id. at S6150 (statement of Sen. Kennedy).
[57.] Id. at S6152 (statement of Sen. Byrd).
[58.] Id. at S6152 (statement of Sen. Brownback).
[59.] Id. at S6153.
[60.] Tamara Henry, Teachers: What in creation?, USA Today, July 25, 2001, at 01D.
[61.] “Issues in Science and Technology,” published by the American Association for the Advancement of Science, Spring 2002.
[62.] Henry, Teachers: What in creation?
[63.] Id. (In fact, Sen. Kennedy felt it necessary to retract his earlier support of the amendment. In a letter to the Washington Times, responding to an earlier column by Sen. Santorum, Kennedy wrote, “My colleague Sen. Rick Santorum, Pennsylvania Republican, erroneously suggested that I support the teaching of `Intelligent Design’ as an alternative to biological evolution. That simply is not true. [¶] Rather, I believe that public school science classes should focus on teaching students how to understand and critically analyze genuine scientific theories. Unlike biological evolution, `Intelligent Design’ is not a genuine scientific theory and, therefore, has no place in the curriculum of our nation’s public school science classes.” Washington Times, March 21, 2002, at A18 (2002 WLNR 384482)).
[64.] H.R. Rep. No. 107–334, at 703 (2001).
[65.] Kenneth Miller, The Truth About the “Santorum Amendment” Language on Evolution, (last visited Nov. 30, 2009).
[66.] National Center for Science Education, “Santorum Amendment Stripped from Education Bill” (last visited Nov. 30, 2009).
[67.] Dennis Hirsch, Science vs. Intelligent Design: The Law (last visited Nov. 30, 2009).
[68.] 147 Cong. Rec. S13365, S13422 (daily ed. Dec. 18, 2001) (statement by Sen. Santorum).
[69.] One vocal critic of the Santorum language claimed that the Discovery Institute was wrong in claiming ―the amendment is not in the conference report, but in the joint explanatory statement.‖ The Santorum language had found its way into the conference report, “for claiming that the Santorum language found its way into the conference committee report, claiming that it was only part of the “joint explanatory statement. [Discovery Institute President Bruce] Chapman erred in locating the amendment in the conference committee report; the joint explanatory statement is separate from the report.” Barbara Forrest and Paul R. Gross, Creationism’s Trojan Horse: The Wedge of Intelligent Design (2004) at 243. This claim is repeated: “the amendment is not in the conference report, but in the joint explanatory statement,” Id. at 246. Forrest and Gross simply fail to understand that the statement is part of the conference report: “A conference committee produces a report in two parts: bill language, typically a compromise between the bill language passed by the House and that passed by the Senate, submitted to the House and Senate for final passage; and a ‘joint explanatory statement of the managers’ that explains what the conference committee did.” Charles Tiefer, The Reconceptualization of Legislative History in the Supreme Court, 2000 Wis. L. Rev. 205, 233 (2000).
[70.] Dennis D. Hirsch, Science vs. Intelligent Design: The Law, Ohio Citizens for Science.
[71.] Jay D. Wexler, Darwin, Design, and Disestablishment: Teaching the Evolution Controversy in Public Schools, 56 Vand. L. Rev. 751, 766 (2003).
[72.] Sandy Streeter, Earmarks and Limitations in Appropriations Bills, Congressional Research Service Report to Congress, Jan. 11, 1999.
[73.] H.R. Rep. No. 107-334, No Child Left Behind Act Conference Report (2001). Scroll down to #137.
The Conferees intend that reporting of graduation rates described in clause (vi) shall be determined by reporting the percentage of students who graduate from high school with a regular diploma (not an alternative degree that may not be fully aligned with State academic standards, such as a certificate or GED), on time (within four years of starting the ninth grade for high schools that begin with the ninth grade or within the standard number of years for high schools that begin with another grade). The approach used to calculate graduation rates must also avoid counting dropouts as transfers. States that have or could have a more accurate longitudinal system that follows individual student progress through high school may use that system if approved by the Secretary as part of the State’s Title I plan.
[74.] Message to the House of Representatives Returning Without Approval the Private Securities Litigation Reform Act of 1995, Dec. 19, 1995, Public Papers of the Presidents (1995), vol. 2, pp. 1912–13.
[75.] “Letter to Congressional Leaders on Product Liability Legislation,” March 16, 1996, Public Papers of the Presidents (1996), vol. 1, pp. 464–65.
[76.] “Statement on Signing the Securities Litigation Uniform Standards Act of 1998,” Nov. 3, 1998, Public Papers of the Presidents (1998), vol. 2, pp. 1974–76.
[77.] Chicago v. Envtl. Def. Fund, 511 U.S. 328 (1994).
[78.] The dissent complained: “The purpose of a committee report is to provide the Members of Congress who have not taken part in the committee’s deliberations with a summary of the provisions of the bill and the reasons for the committee’s recommendation that the bill should become law. The report obviously does not have the force of law. Yet when the text of a bill is not changed after it leaves the committee, the Members are entitled to assume that the report fairly summarizes the proposed legislation. What makes this Report significant is not the single word `generation,’ but the unmistakable intent to maintain an existing rule of law.” 511 U.S. at 345 n. 7 (Stevens, J., dissenting).
Stay tuned for part 2 where Professor DeWolf finishes the story.