Christianity Today published an obituary remembering Phillip Johnson that tells many interesting details of his life. Unfortunately it also contains some misstatements about the law and legislative history regarding evolution education, and for that reason it significantly understates the long-lasting legacy of Johnson’s work in the area of science education. The article states:

A few states started requiring schools to teach the intelligent design critiques of Darwinian evolution in the late 1990s and early 2000s, until it was stopped by a federal court ruling.

An Important Distinction

That isn’t quite right. The law distinguishes between teaching critiques of Darwinian evolution and teaching intelligent design (ID). The former (critiquing Darwin) has never been “stopped” by any court ruling, although the latter (teaching ID) was found unconstitutional by a federal district court in Pennsylvania in the 2005 case Kitzmiller vs. Dover, a legal ruling that has its own numerous flaws.

Merely critiquing Darwin, however, has never been found unconstitutional by any court. That was simply not the issue at Dover, which dealt with teaching ID. In fact, when ID was banned in Dover, the ruling came from the lowest level of the federal court system, but when the U.S. Supreme Court last ruled on evolution education, in the 1987 Edwards v. Aguillard case (a case that did not deal with ID), it effectively said that it is legal to teach scientific critiques of prominent scientific theories like evolution: “We do not imply that a legislature could never require that scientific critiques of prevailing scientific theories be taught.”

Thus, there are examples of both pre-Dover and post-Dover statewide policies (or laws) that have required or permitted teaching scientific critiques of Darwinian evolution, and none of these states has ever been sued. Indeed, none of the following laws or policies has ever been found to be unconstitutional by any court:

Enacted Pre-Dover:

• Alabama (2001-present): “[E]volution by natural selection is a controversial theory. … Instructional material associated with controversy should be approached with an open mind, studied carefully, and critically considered.”
• Pennsylvania (2002-present): “Critically evaluate the status of existing theories (e.g., germ theory of disease, wave theory of light, classification of subatomic particles, theory of evolution, epidemiology of aids).”
• Missouri Science Standards (adopted 2002, on the books at least until 2012): “Identify and analyze current theories that are being questioned, and compare them to new theories that have emerged to challenge older ones (e.g., theories of evolution…).”
• Ohio Science Standards (2003-2006): “Describe how scientists continue to investigate and critically analyze aspects of evolutionary theory.”
• New Mexico Science Standards (2004): Students will “critically analyze the data and observations supporting the conclusion that the species living on Earth today are related by descent from the ancestral one-celled organisms.”
• Minnesota Science Standards (2004-present): “Explain how scientific and technological innovations — as well as new evidence — can challenge portions of, or entire accepted theories and models including … [the] theory of evolution.”
• Kansas Science Standards (2005-2007): “Regarding the scientific theory of biological evolution, the curriculum standards call for students to learn about the best evidence for modern evolutionary theory, but also to learn about areas where scientists are raising scientific criticisms of the theory.”

Enacted Post-Dover:

• South Carolina Science Standards (2006-present): “Summarize ways that scientists use data from a variety of sources to investigate and critically analyze aspects of evolutionary theory.”
• Mississippi Academic Freedom Law (2006-present): “No local school board, school superintendent or school principal shall prohibit a public school classroom teacher from discussing and answering questions from individual students on the origin of life.”
• Louisiana Science Education Act (2008-present): Louisiana schools shall “create and foster an environment…that promotes critical thinking skills, logical analysis, and open and objective discussion of scientific theories being studied including, but not limited to, evolution, the origins of life, global warming, and human cloning.”
• Texas Science Standards (2009-2017): Students must “analyze, evaluate and critique scientific explanations … including examining all sides of scientific evidence of those scientific explanations so as to encourage critical thinking,” and also “analyze and evaluate” core evolutionary concepts, including “common ancestry,” “natural selection,” “mutation,” “sudden appearance,” the origin of the “complexity of the cell,” and the formation of “long complex molecules having information such as the DNA molecule for self-replicating life.”
• Texas Science Standards (2017-present): Students must “analyze, evaluate, and critique scientific explanations by using empirical evidence, logical reasoning, and experimental and observational testing” so as to encourage “critical thinking, scientific reasoning, and problem solving to make informed decisions within and outside the classroom.” More specifically, students must “analyze and evaluate” core evolutionary concepts including “common ancestry,” “natural selection,” and “explanations of abrupt appearance and stasis in the fossil record,” and also must “compare and contrast scientific explanations for cellular complexity” and “examine scientific explanations for the origin of DNA.”
•  Tennessee Academic Freedom Law (2012-present): Students may “understand, analyze, critique, and review in an objective manner the scientific strengths and scientific weaknesses of existing scientific theories covered in the course being taught” such as topics “including, but not limited to, biological evolution, the chemical origins of life, global warming, and human cloning.”

Some of these laws and policies are still in effect, some are not, and some have been amended. For example, as noted, Texas’s standards were amended in 2017 but still require students to “analyze and evaluate” the evidence for common ancestry, natural selection, and “explanations of abrupt appearance and stasis in the fossil record.” Again, each law or policy above either requires or permits critical analysis of evolution, but none has ever been found unconstitutional. Quite a few of these policies were either enacted post-Dover, or they persisted for quite a while post-Dover (quite a few are still current!). If Dover had found policies like these unconstitutional or otherwise “stopped” them, then presumably the post-Dover adoption or existence of these policies would not be possible. As of 2015, the state of Pennsylvania itself still had a policy that required students to “critically evaluate” the “theory of evolution” on the books; it was not affected by the Dover ruling.

For more details, a 2009 article in Hamline University Law Review exhaustively reviews the case law on this subject.

The Santorum Amendment

The Christianity Today article also makes some misstatements regarding the history and impact of the “Santorum Amendment.” It states:

In 2001, Johnson helped Republican Senator Rick Santorum craft an amendment to an education funding bill that would instruct all public schools to “teach the controversy.” But the amendment didn’t pass.

Yes, Phillip Johnson did have an influence on the Santorum Amendment, and technically this statement could be considered correct if by “didn’t pass” it means the Santorum Amendment “didn’t make it into the final text of the No Child Left Behind Act itself.” But this really does not accurately convey the story. In reality, strong language from the Santorum Amendment was incorporated into the Conference Report of the No Child Left Behind (NCLB) Act, which means it still had legal import. Here’s the background.

During U.S. Senate deliberations of the NCLB in 2001, Senator Rick Santorum proposed the “Santorum Amendment,” which did pass the U.S. Senate with an overwhelmingly bipartisan 91-8 vote. This amendment then went into the Senate version of the NCLB. No equivalent language was ever proposed for the House version of the NCLB. For this and other reasons, the House and Senate versions of the NCLB were different and had to be reconciled for the final text of the law. During the reconciliation process, language from the Santorum Amendment was stripped from the text of the law itself but still made it into the Conference Report of the law. Here’s a comparison of the original Santorum Amendment language with the final language that did go into the Conference Report:

Original Santorum Amendment language:

(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.

Final language that went into the Conference Report:

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.

The language of the Santorum Amendment and that of the final Conference Report are quite similar — both suggest students should understand why “evolution” generates “controversy.” In fact, one might say that the Conference Report language is stronger in its prescriptions for science education, since it suggests that when it comes to “biological evolution,” “the curriculum should help students understand the full range of scientific views that exist.”

Legal Import of the Conference Report

So what does it mean that the Santorum Amendment language went into the Conference Report rather than into the law itself? Does this mean that the language had no legal force? Does it mean it “didn’t pass”? Not at all. A law review article, “The ‘Teach the Controversy’ Controversy,” published in the University of St. Thomas Journal of Law and Public Policy in 2009 by law professor David K. DeWolf, tells the history of the Santorum Amendment. He explains that Conference Report language has legal import and “typically provides authoritative guidance on how statutory language should be interpreted and applied”:

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. 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. Report language is considered so important that the President may choose to veto or approve bills based on their report language.

Indeed, over the years various state and local authorities have cited the NCLB Conference Report language when providing justification for why it is appropriate to teach the controversy over Darwinian evolution. David DeWolf elaborates on Phillip Johnson’s influence on the amendment:

In 2000, as the November Presidential and Congressional elections loomed, the pace increased. In addition to a steady stream of inquiries to the Discovery Institute from school board members, parents, and teachers, the Discovery Institute attempted to influence public debate through briefings to lawmakers. In the spring of 2000, Phillip Johnson made a presentation to sympathetic members of Congress. In May, 2000, a public briefing discussing the case both for the science of design as well as for the public policy supporting a — teach the controversy —  approach was held for a number of Members of Congress. After the November elections left Republicans in control of both the House of Representatives and the White House, proposals were made to include some version of — teach the controversy  ― in the federal legislation that would help to fund American public school education. In proverbial ― back of the napkin ― fashion, Phillip Johnson drafted a few sentences for Senator Rick Santorum to propose as an amendment.

The Strength of Johnson’s Scholarship

One last non-legal related note on the Christianity Today article. It quotes some critics of Johnson’s Darwin on Trial, including Stephen Jay Gould, who called it, “a very bad book … full of errors, badly argued, based on false criteria, and abysmally written.” Christianity Today appropriately notes that such responses show Johnson’s work “was popular enough to receive serious criticism.” Unfortunately the article leaves out the fact that there were also prominent scientists who were brave enough to say that they thought Johnson’s scholarship was exemplary. University of Chicago paleontologist David Raup, for one, witnessed a private debate between Gould and Johnson. Raup later wrote:

Johnson’s work is very good scholarship and, of course, this has been widely denied. He cannot be faulted; he did his homework and he understands 99 percent of evolutionary biology.

David Raup, quoted in Thomas Woodward, Doubts About Darwin: A History of Intelligent Design (2003, Grand Rapids, MI: Baker Books)

Phillip Johnson’s work — both legal and scientific — has had a profound influence on science education across the United States. That is the case even if his lasting legacy isn’t always properly recognized.

Photo: Phillip Johnson, screenshot from a video interview, “Focus on Darwinism,” Veritas Forum, via YouTube.