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Yes, Despite a Lawsuit in West Virginia, It’s Constitutional for Public Schools to Teach Evolution

Casey Luskin

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A parent in West Virginia has filed a lawsuit claiming that “evolution is a religious faith” and that the teaching of evolution in public schools amounts to “the propagation of religion.” The parent, Kenneth Smith, is apparently representing himself and demands that “an accurate genetic independent investigator” be brought in “to declare the policy of evolution, as to be violating of United States Constitutional Amendments.” The lawsuit will go nowhere, and in all likelihood will be promptly dismissed.

Nevertheless, the plaintiff raises a question worth considering. Is it constitutional to teach evolution? The answer, as we at Discovery Institute see it, is yes. Courts agree. Simply put, Darwinian evolution is a scientific theory and there’s nothing illegal in teaching about a scientific theory (however scientifically flawed) in public schools.

In the 1968 case Epperson v. Arkansas, the U.S. Supreme Court effectively ruled that not only is it legal to teach evolution, but the failure to teach evolution is likely unconstitutional. Under Epperson, courts will suspect that the failure arose from a motive to prevent offense to religious beliefs.

Despite the U.S. Supreme Court’s clear ruling on this issue, arguments that teaching evolution is unconstitutional have come up in various court cases over the years. This new case in West Virginia isn’t the first, nor probably the last. In each instance, the parties complaining that teaching evolution was unconstitutional lost. What follows is a summary of these cases.

Wright v. Houston, 366 F. Supp. 1208, 1211 (S.D. Tex 1972)
A federal district court in Texas concluded that teaching only the evidence supporting evolution does not establish non-theistic religion, and does not inhibit the free exercise of theistic religion.

The plaintiffs were students who argued that evolution was taught “without critical analysis,” leading to “an uncritical examination of the theory of evolution,” and that this established a “religion of secularism” in the classroom. The court disagreed. It held that teaching only the pro-Darwin scientific evidence is constitutional and let the curriculum stand without ordering any changes. The court rejected the claim that the dogmatic curriculum established a “religion of secularism” — even though it acknowledged that there may be religious implications from the teaching of evolution (“[s]cience and religion necessarily deal with many of the same questions, and they may frequently provide conflicting answers”). In fact, the court acknowledged that the curriculum promoted “a biased view in support of [evolution],” but noted that plaintiffs cited “no case in which so nebulous an intrusion upon the principle religious neutrality has been condemned by the Supreme Court.”

According to the court, the curriculum “at most, has a general policy of approving textbooks which present the theory of evolution in a favorable light.” In key language, the court ruled that teaching evolution “uncritically” is permissible, and does not establish religion even when touching upon a “scientific issue on which some religion claims expertise”:

Plaintiffs’ case depends in large measure upon their demonstrating a connection between “religion,” as employed in the first amendment, and Defendants’ approach to the subject of evolution. The Court is convinced that the connection is too tenuous a thread on which to base a first amendment complaint. … In the case at bar, the offending material is peripheral to the matter of religion. Science and religion necessarily deal with many of the same questions, and they may frequently provide conflicting answers. But, as the Supreme Court wrote twenty years ago, it is not the business of government to suppress real or imagined attacks upon a particular religious doctrine.

Crowley v. Smithsonian Institution, 462 F. Supp. 725 (D.C. 1978)
Much like the plaintiffs in Wright, in Crowley the plaintiffs argued that the Smithsonian Museum “presents evolution as the only credible theory of the origin of life, thereby establishing ‘a religion of secular humanism’ and violating the government’s role of religious neutrality in violation of the First Amendment.” A federal district court in Washington, D.C., rejected these arguments, and denied the plaintiffs’ request for an order compelling the Smithsonian to include displays advocating the “Biblical account of creation found in the Book of Genesis.”

Following Wright, it held that siding with the plaintiffs would require the court to:

accept the plaintiffs’ classification of evolution as, and only as, part of the religion of secular humanism, which the Court cannot do for reasons discussed below. As the court stated in Wright v. Houston Independent School District, 366 F. Supp. 1208, 1211 (S.D.Tex.1972), Aff’d, 486 F.2d 137 (5th Cir. 1973), “(s)cience and religion necessarily deal with many of the same questions, and they may frequently provide conflicting answers.” Given that the Smithsonian does not treat evolution as a religious matter or express any overt hostility to religious theories of creation, the Court cannot accept plaintiff’s characterization of these issues as factual.

Thus, again a court expressly rejected the argument that presenting only the evidence in favor of evolution establishes some kind of non-theistic religious viewpoint. The court continued to explain in greater detail exactly why it is legal to teach evolution.

It found that the pro-evolution displays were not illegal because “the Museum’s presentation of evolutionary theory has the solid secular purpose of ‘increasing and diffusing knowledge among men'” and “educating the public on the current state of scientific knowledge.”

As in Wright, the court did not deny that evolution could touch upon the religious beliefs of the plaintiffs:

The Court is sensitive to plaintiffs’ interpretation of the theory of evolution as religion and is aware that they do not stand alone. However, the key fact is that the Smithsonian in no way treats evolution as part of a religion, secular humanism or otherwise. Just as the federal court in Texas found in a similar case, this Court “is convinced that the connection is too tenuous a thread on which to base a first amendment complaint.”

The court ruled that “Even accepting their argument that evolution is hostile to their beliefs as to creation, this impact is at most incidental to the primary effect of presenting a body of scientific knowledge.” In the eyes of the court, teaching evolution need not establish religion, for “The Museum deals with evolution, appropriately, as a subject of natural history and not, either explicitly or implicitly, as a religious matter.” The court rejected claims that the exhibits violated the free exercise of religion. Even though the plaintiffs “risk seeing exhibits contrary to that faith,” the court found that “the state has no legitimate interest in protecting any or all religions from views distasteful to them.”

Thus, in no uncertain terms, this court found that presenting only the evidence for evolution is constitutional.

Segraves v. State of California Sacramento Superior Court #278978 (1981)
A parent of children in California public schools sued the California State Board of Education in state court, claiming that teaching evolution prevented his family from freely exercising their religion. Although the court accepted that evolution was incompatible with the plaintiffs’ religious beliefs, it held that California’s anti-dogmatism policy provided sufficient accommodation to their views. The policy stated that teachers should emphasize that scientific explanations of life’s origins are about physical processes rather than ultimate causes. The court found that this made teaching about evolution or the origin of life constitutionally acceptable.

Mozert v. Hawkins County Board of Education, 827 F.2d 1058 (6th Cir. 1987)
In this case, parents and students sued a school district, arguing that learning about evolution, among many other subjects, did not allow students to freely exercise their religion. The Sixth Circuit Court of Appeals ruled that teaching evolution did not violate the Free Exercise Clause of the First Amendment because “the requirement that public school students study a basal reader series chosen by the school authorities does not create an unconstitutional burden under the Free Exercise Clause when the students are not required to affirm or deny a belief or engage or refrain from engaging in a practice prohibited or required by their religion.” In short, students may be required to learn about evolution, so long as districts do not require them to affirm or deny belief in evolution.

Peloza v. Capistrano Unified School District, 37 F.3d 517, 519 (9th Cir. 1994), cert. denied, 515 U.S. 1173 (1995)
In this case, the Ninth Circuit Court of Appeals held that a teacher can be ordered to teach evolution even if it conflicts with his religious beliefs. A high school biology teacher sued his school district claiming that “[e]volutionism is an historical, philosophical, and religious belief system, but not a valid scientific theory [and] is based on the assumption that life and the universe evolved randomly and by chance and with no Creator involved in the process.” The teacher argued that the district forced him to “proselytize to his students a belief in evolutionism under the ‘guise of its being a valid scientific theory.'” According to the court, “Peloza’s complaint at most makes this claim: the school district’s actions establish a state-supported religion of evolutionism, or more generally of ‘secular humanism.'” The court rejected these arguments.

Regarding the claim that teaching evolution establishes “secular humanism,” the court said, “We reject this claim because neither the Supreme Court, nor this circuit, has ever held that evolutionism or secular humanism are ‘religions’ for Establishment Clause purposes.” While it is arguable that many courts have ruled secular humanism is a religion, what’s noteworthy is how the Ninth Circuit interpreted the U.S. Supreme Court’s treatment of evolution: “The Supreme Court has held unequivocally that while the belief in a divine creator of the universe is a religious belief, the scientific theory that higher forms of life evolved from lower forms is not.”

The court made very clear that evolution is not a religious concept: “‘Evolution‘ and ‘evolutionism‘ define a biological concept: higher life forms evolve from lower ones. The concept has nothing to do with how the universe was created; it has nothing to do with whether or not there is a divine Creator (who did or did not create the universe or did or did not plan evolution as part of a divine scheme).” The court found that a pro-evolution curriculum did not require the teaching of any religious viewpoint:

Only if we define “evolution” and “evolutionism” as does Peloza as a concept that embraces the belief that the universe came into existence without a Creator might he make out a claim. This we need not do. To say red is green or black is white does not make it so. Nor need we for the purposes of a 12(b)(6) motion accept a made-up definition of “evolution.” Nowhere does Peloza point to anything that conceivably suggests that the school district accepts anything other than the common definition of “evolution” and “evolutionism.” It simply required him as a biology teacher in the public schools of California to teach “evolution.” Peloza nowhere says it required more.

The court made clear that teaching the evidence for evolution entails teaching science, not religion, agreeing with the district court’s ruling:

Since the evolutionist theory is not a religion, to require an instructor to teach this theory is not a violation of the Establishment Clause. … Evolution is a scientific theory based on the gathering and studying of data, and modification of new data. It is an established scientific theory which is used as the basis for many areas of science. As scientific methods advance and become more accurate, the scientific community will revise the accepted theory to a more accurate explanation of life’s origins. Plaintiff’s assertions that the teaching of evolution would be a violation of the Establishment Clause is unfounded.

Out of all of its analysis, however, most striking is the court’s claim that even if evolution were taught “as fact,” this would “not transgress the establishment clause”:

Peloza’s complaint is not entirely consistent. In some places he seems to advance the patently frivolous claim that it is unconstitutional for the school district to require him to teach, as a valid scientific theory, that higher life forms evolved from lower ones. At other times he claims the district is forcing him to teach evolution as fact. Although possibly dogmatic or even wrong, such a requirement would not transgress the establishment clause if “evolution” simply means that higher life forms evolved from lower ones.

Moeller v. Schrenko, 251 Ga. App. 151 (Ga. Ct. App. 1st Div. 2001)
A Georgia court of appeals rejected a high school student’s claims that her biology textbook violated her religious beliefs and infringed her free exercise of religion because it said creationism was not science and mentioned theories about the chemical origin of life. The court found a secular purpose of “educating biology students regarding both the nature of the scientific method as well as the most common explanations for the origin of life.” The court did not consider the textbook’s discussion of the origin of life to be a “religious reference” and found there were no facts to justify the plaintiff’s allegations. There was no infringement upon free exercise of her religion because the student had not shown that the textbook placed a “substantial burden” on the practice of her religious beliefs.

Now there are some very important caveats here.

When it comes to simply teaching the scientific evidence supporting evolution (or the chemical origin of life), courts have decidedly held that this is constitutional. However, there are many ways to envision how evolution could be taught alongside atheism or materialism in a way that might violate the constitution, some of which I have detailed in this law review article.

Moreover, there are many scientific problems with neo-Darwinian evolution, and even though it’s legal to teach it in a dogmatic, pro-Darwin-only fashion, that’s not the best way to teach evolution.

The Solution? Teaching More about Evolution, Not Less, Is Good Science and Good Pedagogy
Rather than seeking remedies in courts, citizens concerned about the dogmatic and one-sided teaching of evolution should go to local or state boards to convince them that the best way to teach evolution is to teach it objectively, discussing both the pros and the cons. Indeed, there are many good scientific and pedagogical reasons to permit or require teachers to teach both the scientific strengths and weaknesses of evolution.

School boards should do this not because they are (or fear they might be) compelled by a lawsuit. Rather they should enact such policies because they themselves agree that it is sound education policy and good science. That will put them in good company, including with the U.S. Congress which has urged that “[w]here topics are taught that may generate controversy (such as biological evolution), the curriculum should help students to understand the full range of scientific views that exist.”

Image credit: Constitutional Convention (U.S. National Archives and Records Administration) [Public domain], via Wikimedia Commons.


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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