Last weekend, the West Virginia State Legislature passed into law SB280, a bill that protects the rights of teachers who are “responding to student inquiries or answering questions from students about scientific theories of how the universe and/or life came to exist.” Many, including the media, have inaccurately called this an “intelligent design bill.” While the original version of the bill did state that teachers “may teach intelligent design,” that version of the bill was replaced, and the intelligent design language completely removed, very early in the legislative process by the West Virginia Senate Education Committee on January 16. Since then, the bill has said nothing about intelligent design and simply protects the rights of teachers to discuss “scientific theories of how the universe and/or life came to exist” — again, no mention of intelligent design. 

The bill subsequently went through a few additional amendments and changes, and the final language reads as follows:

No public school board, school superintendent, or school principal may prohibit a public school classroom teacher from responding to student inquiries or answering questions from students about scientific theories of how the universe and/or life came to exist.

In our opinion here at Discovery Institute, the final language of the law is quite sensible — perhaps not ideal, but nonetheless very good. Our interpretation is that it protects the rights of teachers to answer student inquiries and questions on origins topics — but limits those answers to discussing “scientific theories.” Thus, if a teacher were to advocate creationism or any other religious viewpoint that is prohibited under Supreme Court rulings from endorsement in public schools, they would not be protected by the law because the law only protects teaching about science. As for teaching intelligent design, it simply is not addressed under the law, so if a teacher were to teach intelligent design, it’s not clear that the law would have anything to do with it. (As explained below, we do think ID is a scientific theory, but our opinion really isn’t relevant here because we’re not educators, policymakers, or jurists controlling the law in West Virginia.) Essentially, we view this as an academic freedom law which only protects the rights of teachers to answer student questions about scientific theories related to origins — a sensible law with good language overall. 

Final Language Consistent with Our Approach

At this point I should reiterate how Discovery Institute believes this issue should be addressed in public schools. While we are obviously well-known as the institutional home of the intelligent design (ID) community, and major advocates of the theory of intelligent design, we do not support efforts to bring ID into public schools. Some people are surprised to hear this, but the reasons are simple to explain: 

At Discovery Institute and around the ID community, our main priority is to see ID grow and develop as a science. However, when ID gets brought into public schools through curricular policies or legislation, this leads to politicization of the scientific debate, and that politicization leads to persecution and witch hunts against ID-friendly scientists and scholars in the academy. This is precisely what we saw in the wake of the 2005 Kitzmiller v. Dover lawsuit, and this persecution dramatically harms our intellectual efforts to develop the theory of intelligent design. These lawsuits are also bad for the people who adopt ID policies because they are very costly and prevent anything good from happening in the classroom. As such it has been Discovery Institute’s and the ID community’s longstanding view that intelligent design should not be brought into public schools. 

Instead of teaching ID, what we recommend for public schools is that they discuss the scientific evidence for and against evolution without getting into alternative theories like intelligent design — what we often call a “scientific strengths and weaknesses” approach. This approach has the benefit of being clearly legal under well-established law, and it also provides many important pedagogical benefits like helping students to learn more about the science of evolution and develop their critical thinking skills as they evaluate the evidence being debated by scientists. 

This is all explained on our Science Education Policy page as follows:

As a matter of public policy, Discovery Institute opposes any effort to require the teaching of intelligent design by school districts or state boards of education. Attempts to require teaching about intelligent design only politicize the theory and will hinder fair and open discussion of the merits of the theory among scholars and within the scientific community. Furthermore, most teachers at the present time do not know enough about intelligent design to teach about it accurately and objectively.

Instead of recommending teaching about intelligent design in public K-12 schools, Discovery Institute seeks to increase the coverage of evolution in curriculum. It believes that evolution should be fully and completely presented to students, and they should learn more about evolutionary theory, including its unresolved issues. In other words, evolution should be taught as a scientific theory that is open to critical scrutiny, not as a sacred dogma that can’t be questioned.

For the record, this has been Discovery Institute’s recommended policy and approach for many years, pre-dating even the 2005 Kitzmiller v. Dover case. And consistent with this, there is a clear public record of the fact that we opposed Dover’s ID policy — see here, here, or here for documentation.

The language of the newly passed West Virginia academic freedom law is not completely aligned with our approach but it’s also not inconsistent with our approach — nothing about intelligent design but simply protecting the rights of teachers to discuss scientific theories when answering student questions about origins. Overall, it’s good language and it means West Virginia joins Tennessee, Louisiana, Alabama, Indiana, and Mississippi to become the sixth state to adopt some form of an academic freedom policy.

Strange Situation: Good Law, Bad Legislative Record

After the passage of this law, we find ourselves in a strange situation where the adopted language of the West Virginia academic freedom law is good, but the legislative record is bad. Not only has the media misconstrued the law as an “intelligent design bill,” but even some West Virginia legislators seem to misunderstand what it’s about. 

During hearings various legislators stated that the law would allow the teaching of intelligent design. But since the first legislative hearing on the bill, the intelligent design language was removed and the bill has said nothing about intelligent design. If the West Virginia legislature wanted a law that clearly protected the teaching of intelligent design, then they could have simply adopted the original language of the bill. But they didn’t do that. Instead, they stripped out the intelligent design language very early in the legislative process and passed a bill that says nothing about intelligent design. Intelligent design is simply outside the scope of the law’s language. Unfortunately, some legislators seem to have been confused by earlier versions of the bill and thought that the final version of this bill was about intelligent design.

It’s worth noting that the constitutionality of teaching intelligent design is effectively an unsettled legal question. The U.S. Supreme Court has never ruled on the teaching of ID in public schools, and only one court — from the lowest level of the federal courts, a district court from the Middle District of Pennsylvania — has addressed this question. Whether or not intelligent design is a “scientific theory,” is not addressed by the West Virginia law or any higher court — certainly not by any court that has control in West Virginia. Again, we of course do think ID is a scientific theory and we do think ID should be considered constitutional to teach in public schools (though on policy grounds we think it’s a bad idea to bring ID into public schools) — but our opinion doesn’t matter or control here because this is not our bill and we’re not educators, policymakers or jurists in West Virginia. But our interpretation of the newly adopted West Virginia law is this: If a teacher in a West Virginia public school were to teach about ID, it’s not at all clear that West Virginia academic freedom law would provide any protection because the law itself says nothing about intelligent design. When it comes to controlling law in West Virginia, whether ID is a scientific theory is simply a question outside the scope of the bill, and one that would need to be decided elsewhere. 

Despite these facts, there appears to be confusion about whether West Virginia bill allows the teaching of intelligent design. This confusion is being perpetuated by the media which is still running stories with headlines like “Delegates apply changes to Intelligent Design bill before its passage,” despite the fact that intelligent design was removed from the bill long ago. The story just mentioned admits that the final passed language “doesn’t mention ID anymore” — yet persists in calling it an “Intelligent Design bill.” No wonder many legislators have been confused about what this bill is really about. 

Another area where some West Virginia legislators appear confused is on whether the law allows teachers to teach creationism. Again, this is simply not correct. The bill has never said anything about creationism, and even during the West Virginia Senate Education Committee hearing it was made very clear that intelligent design is different from creationism, and that SB280 did not address creationism. Creationism was found to be a religious viewpoint by the U.S. Supreme Court in the 1987 Edwards v. Aguillard ruling. In that case the Court held that “creation science” is a “religious viewpoint that a supernatural being created humankind,” and therefore unconstitutional to teach in public schools. Since the West Virginia law only protects the teaching of “scientific theories,” and since the U.S. Supreme Court found that creationism is a religious viewpoint, if a teacher were to teach creationism then he or she would not be protected by the law. 

Unfortunately, some West Virginia legislators were apparently unfamiliar with these facts or did not understand what the bill was about. A few even praised creationism during debate over this bill. The myth that this bill allows creationism to be taught was perpetuated by the West Virginia ACLU which claimed last month that the bill “allows teachers to push creationism in science class.” That claim is simply not true. But with critics and the media perpetuating false claims that SB280 allows the teaching of intelligent design or creationism, no wonder some people are so confused.

West Virginia ACLU Backs Down?

Back in January when SB280 was being considered by the West Virginia Senate Education Committee, the West Virginia ACLU tweeted “SB 280, allowing intelligent design in public schools, is unconstitutional. We’ll see the state in court if it passes.” But that was back when the bill’s language still mentioned intelligent design. Now that the bill has passed into law without any language about intelligent design, the West Virginia ACLU seems to be backing off threats of an immediate lawsuit. Here’s what the West Virginia ACLU tweeted on Saturday when the bill passed:

SB 280 has passed. An earlier version allowed the teaching of intelligent design, but amendments were adopted making the language less clear.

We’ll be watching closely. If this bill results in teachers pushing creationism in the classroom, we’ll see the state in court.

The ACLU’s favorite pastime is to threaten lawsuits, and they’ve said things like this many times over the years. But will they actually sue? Time will tell — but a very similar situation arose in Louisiana back in 2008 when it passed the Louisiana Science Education Act (LSEA) — and the ACLU never sued there.

In Louisiana, the LSEA’s language was entirely defensible as well, and Louisiana ACLU Executive Director Marjorie Esman even reportedly conceded that “if the Act is utilized as written, it should be fine; though she is not sure it will be handled that way.” A similar policy adopted in a public school parish in northern Louisiana in 2006 drew a similar admission from an attorney working with the ACLU that, “[o]n its face,” the policy “is not objectionable.” The same thing could be said here: On its face, the language of the West Virginia law is very reasonable and not objectionable. 

In closing, it is our interpretation that the West Virginia law as passed only protects the teaching of scientific theories and says nothing about protecting the teaching of intelligent design, and certainly does not protect endorsing non-scientific religious beliefs like creationism. If either ID or creationism were taught, it’s not clear that the teacher would be protected under this bill. Since the West Virginia law only protects teaching “scientific theories” — and since it’s completely legal to teach “scientific theories” — if something illegal (e.g., creationism) were promoted in a West Virginia classroom, this law would not protect it and the law would not be to blame.