Legal Cases

On Legal Issues Involved in the Teaching of Evolution and Creationism in America’s Public Schools

By
The Christian Law Association
Seminole, Florida
March 2000


LEGAL OPINION MEMORANDUM

Question Presented
May creationism be legally taught in a public school science setting?

Summary

While creationism may not legally be taught in America’s government
schools, nothing prohibits public school teachers from presenting
legitimate evidence in science class that both supports and refutes
Darwinism, even if such evidence would tend to support the religious
theory of creation.

Legal Analysis

The United States Supreme Court has held that scientific creationism is a
religion, while it does not regard evolution as religious. This was the
Court’s determination in the case of Edwards v. Aquillard, 482 U.S. 578
(1987). The key case regarding the teaching of religion in public schools
is Abington v. Schempp, 374 U.S. 203 (1963), which prohibited the
devotional use of religious materials in public school classrooms. At the
same time, however, the Court affirmed the continuing educational use of
religious materials, presented objectively.

The Court said:

Nothing we have said here indicates that such study of the Bible or of
religion, when presented objectively as part of a secular program of
education, may not be effected consistently with the First Amendment.
Therefore, religion, including the religious belief in creation, is
appropriately brought into the public school curriculum wherever it
naturally arises—as it does in the study of origins. Scientific evidence
pertaining to all theories of origin can be objectively overviewed in a
public school science class without the teacher crossing the
constitutional line of proselytizing or devotional use of religion. In
fact, the student who is only taught to blindly accept the unproven theory
of Darwinian macroevolution despite mounting scientific evidence against
it is poorly served by the school district.

The real issue regarding the teaching of evolution in public schools is
not a legal question. The real question is whether a science teacher who
does not recognize that evolution is merely a theory and not a
scientifically proven fact is qualified to teach it in a public school
science class. Public school teachers should be required to keep up with
current scientific data on evolutionary theories of macroevolution. One
good starting point for a teacher to update his or her skills would be to
read the significant work of Dr. Michael Behe of Lehigh University, who
has effectively challenged Darwinian theories based on recent scientific
data in his book, Darwin’s Black Box. Dr. Behe teaches biochemistry and
molecular biology at Lehigh University in Bethlehem, Pennsylvania. In his
book, Dr. Behe spells out his theory of "irreducible complexity." Both the
book and the theory were favorably reviewed in the New York Times and Dr.
Behe was himself asked to produce a column for the Times outlining his
theory. Public school teachers of evolutionary theory should be required
to keep up with such new information.

Even before Dr. Behe’s book appeared, Dr. Charles Thaxton was the first
scientist to propose the theory of "intelligent design" as an alternative
to evolution. The forward to Dr. Thaxton’s groundbreaking book was written
by a prominent atheistic scientist. Dr. Thaxton, who now teaches in
Czechoslovakia, first presented his views on The Mystery of the Origin of
Life at the state university at Austin, Texas, in 1989. He demonstrated
that when scientists attempt to prove evolutionary theory, they are
required to manipulate the building blocks of life in a manner that
actually disproves evolution and points toward the necessity for an
intelligent designer of the processes of life. This theory is compatible
with religious views of creation, but not with Darwinism. It is this sort
of evidence that must be presented to school children in order to educate
them sufficiently in the most modern views of evolution. Instead of
presenting a religious theory, public school teachers need only present
these new scientific evidences and let the students evaluate which
theories of origin they best support. Information about what various
religions believe about the origins of life can be presented in an
objective manner. Evolutionary theories can be weighed objectively against
the emerging evidence to see whether they hold up. This is not teaching
religion, but teaching good science.

While Dr. Behe and Dr. Thaxton never mention creationism, their theories
support the thesis that some intelligent designer must be linked to the
origin of life in much the same way that computer programs can be shown to
be intelligently designed. Dr. Phillip Johnson and Charles Colson have
both authored numerous books analyzing and debunking myths associated with
evolution. Mr. Colson’s new book, How Now Shall We Live, focuses on the
fact that evolution is primarily a philosophy that undergirds a specific
secular world view, and is not a science at all.

Evolution’s hold on academe is weakening and will likely continue to wan
rapidly as new scientific evidence regarding DNA and the building blocks
of life are unlocked. The new scientific evidence presented by Dr. Behe
and Dr. Thaxton has not been refuted by evolutionary scientists. Dr. Behe
notes that Darwin himself recognized that if some irreducibly complex
organism were identified that did not permit gradual evolution, the theory
of evolution would become untenable. Dr. Behe has done exactly that in his
work on cellular biology. Public school boards need to mandate that
evolution be taught by presenting both the scientific pros and cons. There
is no question that such a curriculum would be constitutional. The new
evidences are not based on God, but on science. Students would need to
take the next step on their own if they choose to plug in God as the
"intelligent designer." That is as far as teachers can constitutionally go
at the present, but it is probably far enough.

The Kansas Board of Education recently voted to omit questions on
evolution from the statewide science exam because they did not feel the
state recommended science textbook, which only provided a positive view of
evolution, was factual. The Supreme Court has never mandated that
Darwinism must be taught as fact; nor have they ever prohibited science
teachers from teaching scientific evidence disproving evolution to public
school students. If such scientific evidence better supports religious
views of the origin of life, there is no constitutional foul. Public
school science teachers may constitutionally teach the fact that
scientists are beginning to take a new critical look at evidence
supporting evolution, which is an objective development in the field of
science.

By any modern scientific measure, macroevolution is a theory, not a proven
fact. Students who are not given arguments that both support and refute
this theory are not being given a good science education. This issue
transcends the question of whether the Supreme Court would ever permit the
teaching of creationism in public schools. The issue really becomes
whether public school science teachers are well or ill informed regarding
their subject matter from a scientific perspective.
The United States Supreme Court struck down the State of Arkansas’
anti-evolution statute that prohibited the teaching of evolution in public
schools. The Court found in Epperson v. Arkansas, 939 U.S. 97 (1968), that
the primary purpose of the Arkansas statute was religious and had no
objective secular or scientific basis. The Supreme Court ruled in Edwards
v. Aquillard, 482 U.S. 578 (1987), that a state could not mandate the
teaching of creationism by requiring that creation theories be taught
whenever evolutionary theories were taught. But objective presentations of
religious views, which are not devotional or proselytizing, have never
been banned from the classroom where they logically fit as they do in any
analysis of the origins of life.

There are two lower court cases where teachers were prohibited from
presenting views contrary to evolution in a science class. In one, Peloza
v. Capistrano Unified School Dist., 37 F.3d 517 (9th Cir. 1994), the
teacher was combining religious proselytizing with teaching about creation
in the classroom. In the other, Webster v. New Lenox School Dist., 917
F.2d 1004 (7th Cir. 1990), the issue was whether the teacher’s First
Amendment rights were violated by the school curriculum policy regarding
evolution. The court held that the teacher "had not been prohibited from
teaching any nonevolutionary theories," but was merely prohibited from
"religious advocacy." Id. at 1008.

Finally, it is entirely constitutional for a teacher to permit a student
to bring his or her own religious perspective into the science classroom
discussion. It is perfectly appropriate for a teacher to permit students
to present scientific evidence against macroevolution, even if that
evidence includes discussion of a religious perspective. It is not good
educational policy to advocate a blind adherence to any particular
evolutionary scheme. Furthermore, it is religious discrimination to
prohibit students from expressing their religious viewpoints objectively
in class. Teachers could set up student debates and other assignments
where students were invited to evaluate the conflicting scientific
evidence that is currently emerging.

The teacher is an agent of the state capable of violating the
Establishment Clause if he or she brings religion into the classroom in a
non-objective manner. The student, on the other hand, stands outside of an
Establishment Clause analysis because the student is not an employee or
agent of the state. With respect to student debates or discussions, the
issue is placed squarely into a Free Speech analysis where the issues
become religious discrimination and the free expression rights of students
in school.

The United States Supreme Court held in the case of Bd. Of Educ. V.
Mergens, 496 U.S. 226, 250 (1990), that "there is a crucial difference
between government speech endorsing religion which the Establishment
Clause forbids, and private speech endorsing religion which the Free
Exercise and Free Speech Clauses protect." While the teacher’s speech is
government speech, a student’s speech is private speech protected by the
Free Speech Clause even in the public school classroom.

Guidelines for Religious Freedom in Public Schools, was a document that
was first issued to all school districts in the United States by President
Clinton, Attorney General Reno and Secretary of Education Riley in August,
1995. It was reissued by Secretary Riley in May, 1998. In the section
regarding the rights of students with respect to class assignments the
document states:

Student Assignments: Students may express their beliefs about religion
in the form of homework, artwork and other written and oral
assignments free of discrimination based on the religious content of
their submissions. Such home and classroom work should be judged by
ordinary academic standards of substance and relevance, and against
other legitimate pedagogical concerns identified by the school.

It is not a legitimate pedagogical concern for a teacher to prohibit a
student from expressing scientific and objective information that refutes
evolution, even if such information contains a religious viewpoint. Every
school should have a copy of the Religious Expression Guidelines in its
school library and educators should abide by its legal conclusions. The
Guidelines reflect the current state of the law.

Conclusion

A teacher does not engage in prohibited religious speech when the teacher
presents credible scientific information in a public school science class
that refutes the theory of evolution. Similarly, a teacher does not
violate the Establishment Clause when he or she teaches objectively about
various religious beliefs regarding origins. Furthermore, it would be a
violation of the First Amendment right of Free Speech in public school if
a teacher prohibited students from doing assignments or making class
presentations analyzing which theories of origins best fit with current
scientific evidence—whether those theories are secular or religious.
Teachers may not chill students’ exercise of their own constitutional
rights of free speech in completing school assignments. A science teacher
may not teach the religion of creationism in the classroom, but may
present evidences to objectively support and refute all theories of the
origins of life and the universe.