by David K. DeWolf, Stephen C. Meyer, Mark E. DeForrest

The Foundation for Thought and Ethics.


The Authors

David K. DeWolf, Professor of Law, Gonzaga University School of Law, Spokane, Washington. B.A., Stanford University, 1971; J.D., Yale Law School, 1979. Prof. DeWolf is a Fellow of the Discovery Institute's Center for the Renewal of Science and Culture. He is the author of Washington Tort Law and Practice (West Publishing, 1993) as well as Washington Contract Law and Practice (West Publishing, 1998). He practiced law in Spokane Washington as well as in Santa Rosa, California prior to joining the Gonzaga faculty in 1988. Prof. DeWolf has written on constitutional law regarding religion in public schools as well as issues of tort law and public policy.

Stephen C. Meyer, Director of the Discovery Institute's Center for the Renewal
of Science and Culture. Associate Professor of Philosophy at Whitworth College.
B.S. (Physics and Geology), Whitworth College, 1980; Ph.D. (History and
Philosophy of Science), University of Cambridge, 1990. Formerly a geophysicist
with the Atlantic Richfield Company, Prof. Meyer completed his Ph.D.
dissertation on origin-of-life biology and the methodology of the historical
sciences. He has contributed to numerous technical journals and scholarly books.
In addition to his scholarly articles, Prof. Meyer has written many editorial
features in newspapers and magazines, including The Wall Street Journal, The
L.A. Times, and The Chicago Tribune.

Mark E. DeForrest, Instructor, Central Washington State University, Ellensburg,
Washington. B.A., Western Washington University, 1992; J.D., Gonzaga University School of Law, 1997. He is the author of "Civil Disobedience: Its Nature and Role in the American Legal Landscape," Gonzaga Law Review 33 (1997-98): 653, as well as a co-author (with Professor James M. Vach) of "Truth or Consequences: The Jurisprudential Errors of the Militant Far-Right," Gonzaga Law Review 32
(1996-97): 593 .


Foreword

"A Smith and Wesson," declares a folksy proverb, "beats four aces." And indeed
it does, whenever the rules can be suspended and a winning hand bested by force, as in the old frontier of the American West.

Within the jurisdiction of American civil order, constitutional rights and the
rule of law regulate how we settle disputes and transact power relationships.
But even here our little proverb remains profoundly true. There have always been
Constitution-free zones where someone or some group has acquired a de facto
domain of control. Over time, these zones acquire a social and cultural
momentum, and unless one can demonstrate superior legal power, one is
well-advised not to challenge such pockets of privileged authority.
One such zone of control is the biology curriculum of the public schools. Here
open discussion of evidence and evaluation of competing theories has given way
to an enforced orthodoxy: Darwinian evolutionary theory. According to advocates of an exclusively Darwinian curriculum, Darwinian evolutionary theory is the only scientifically legitimate approach to teaching biological origins. Thus,
exposing students to evidence that challenges a Darwinian perspective is
regarded as a waste of time since "no one challenges the fact of evolution."
Moreover, exposing students to competing theories is said to violate the canons
of scientific method as well as constitutional norms forbidding the advancement
of religion. Consequently, whenever teachers and school boards attempt to expose students to alternative perspectives about biological origins, they are
threatened with legal action.

But Darwinism is not the only available scientific account of biological origins
To be sure, Darwinists frequently put up a united front and claim that all
serious debate about biological origins has long since ceased. But in fact there
is a substantial scientific literature that critiques the adequacy of the
Darwinian explanation for the complexity and "apparent design" of biological
organisms. Thus the debate-the scientific debate-over Darwinian evolution
remains very much alive.

Some scientists go further. No longer content merely to critique contemporary
Darwinism and other similarly materialistic evolutionary theories, they have
begun to advance an alternative theory known as intelligent design or design
theory. Mathematician William Dembski has, for instance, published an important
work on the theoretical underpinnings for detecting design. In The Design
Inference: Eliminating Chance Through Small Probabilities (Cambridge University
Press, 1998) he shows how design is empirically detectable and therefore
properly a part of science.

Unlike contemporary neo-Darwinists, who deny evidence of real as opposed to
merely apparent design, contemporary design theorists see impressive evidence of
actual design in living systems. Biochemist Michael Behe is a case in point. His
book Darwin's Black Box (Free Press, 1996) details the design constraints that
organisms face at the biochemical level.

Even so, lobbyists for an exclusively Darwinian curriculum continue to do
everything in their power to prevent students from learning about this new
development in scientific thinking. Thus, from California to Maine, in hamlet
and metropolis alike, teachers and school boards who want to inform students
about the scientific case for design in biology face the threat of lawsuit and
other forms of social intimidation.

Usually the threat is delivered by an attorney from an advocacy group. The
attorney notifies hapless school officials, teachers, and parents that they will
face legal action if they permit discussion of evidence that challenges
Darwinian orthodoxy. The attorney assures them that even if they escape near
certain conviction, they will nevertheless incur great legal expense in
defending themselves. Not surprisingly, teachers and school boards so threatened
nearly always give way. Educators, who are frequently under siege anyway, don't
want more hassles.

Darwinism does not merely monopolize the teaching of biological origins and
development. In many schools Darwinism constitutes a form of totalitarian
control. Thus, critics of Darwinian theory do not confront merely the absence of
any alternative to Darwinism. Instead, they face pressures such as ridicule,
slowed academic advancement, and in the case of teachers even termination of
employment. In many schools penalties and reprisals await the vocal
non-Darwinist.

Worst of all, the students suffer. Students skeptical of Darwinism are
discouraged from voicing their objections in the public school science
classroom. Those who want to explore scientific evidence more consonant with a
design perspective are frequently silenced. Indeed, the influential California
Science Framework (adopted January 13, 1989) advises teachers to tell such
students to "discuss the question further with his or her family and clergy."
Far from encouraging open scientific inquiry, this recommendation stifles it.
Happily, the law is not on the side of an enforced Darwinian orthodoxy. In 1987,
the U.S. Supreme Court ruled in Edwards v. Aguillard that "teaching a variety of
scientific theories about the origins of humankind to school children might be
validly done with the clear secular intent of enhancing the effectiveness of
science instruction." As this guidebook will show, teachers and school boards
who choose to tell students about the evidence and arguments for intelligent
design actually fulfill this Supreme Court mandate.

Nevertheless, the media frequently portray biology teachers who adopt such an
open approach as religiously motivated opponents of science. Using a stereotype
epitomized in the Hollywood film Inherit the Wind, a fictional portrayal of the
1925 Scopes "Monkey Trial," many reporters treat any challenge to Darwinism as a challenge to truth and rationality.

Yet in 1997 University of Georgia professor of history of law Edward Larson (a
reviewer of the present work) published a critical reassessment of the Scopes
Trial and its portrayal in Inherit the Wind. In Summer for the Gods: The Scopes
Trial and America's Continuing Debate Over Science and Religion (Basic Books), Larson thoroughly deconstructed Inherit the Wind, showing just how egregiously
the "Scopes Trial" stereotype misrepresents the actual Scopes Trial. Instead,
the book shows that the debate over biological origins was-and is-far more
complex than most Americans have been told. For his book Larson was awarded the 1998 Pulitzer Prize in history.

The aim of the present casebook is not to stop teachers from showing Inherit the
Wind, or still less from teaching students about Darwin's important and
influential theory. Its aim, rather, is to restore academic freedom in the
public school science classroom. Intelligent Design in Public School Science
Curricula: A Legal Guidebook makes a persuasive case for allowing students to
consider both the strengths and weaknesses of Darwinian theory as well as those
of its chief scientific rival, design theory. To teach just one view of a
controversial subject-and to teach it uncritically-constitutes indoctrination,
not education. This guidebook gives local school boards, teachers, parents, and
attorneys the legal tools they need to defend a more liberally-minded approach
to biology education. It makes a persuasive case for allowing teachers to teach
the controversy, including the central controversy over whether the design that
biologists of all theoretical persuasions encounter in their study of living
things is not just apparent but actual.

The Foundation for Thought and Ethics wishes to thank the following
constitutional and legal scholars for their time in critiquing this casebook and
for their valuable suggestions: Phillip E. Johnson, Jefferson E. Peyser
Professor of Law at the University of California at Berkeley School of Law;
Charles Haynes, President of Freedom Forum of the First Amendment Center;
Michael J. Woodruff, Esq., Shareholder of Gammon & Grange and Adjunct Faculty at George Mason University; Michael McConnell, Professor of Law, College of Law, University of Utah; Doug Vande Griend, Chief Operating Officer, Public Justice Advocates; Francis H. Hare, Jr., Chief Legal Officer, Attorney's Information Exchange Group; Edward J. Larson, University of Georgia Professor of History of Law, author of Trial and Error: The American Controversy over Creation and Evolution (Oxford University Press, 1985) and the Pulitzer prize-winning Summer for the Gods: The Scopes Trial and America's Continuing Debate Over Science and Religion (Basic Books, 1997).

Jon A. Buell, President
The Foundation for Thought and Ethics
Richardson, Texas

1. Introduction

Public schools face a dilemma when they address the subject of biological
origins. From the Scopes "Monkey Trial" (1925) to the Supreme Court's opinion in Edwards v. Aguillard (1987), the teaching of biological origins has put the
public schools in the awkward role of resolving a controversy that divides
scientists, educators, and the courts. While the experts debate the issues, and
the media sometimes inflame the controversy, school boards, administrators, and
teachers must still answer the question, What should we teach our students about
how living organisms arose on earth?

For many scientists, educators, and activists, the answer is clear: Teach only
Darwinian and related evolutionary theories that explain the origin and
development of life as the result of undirected natural processes. Despite the
vehemence with which many scientific authorities express this view, many
Americans remain unconvinced and seek an alternative approach.
In the 1970s and early 1980s an approach known as scientific creationism (or
creation science) was proposed. Scientific creationism sought to defend the
biblical account of creation in Genesis as scientifically accurate.1 Advocates
of this approach persuaded the State of Louisiana to enact a statute requiring
teachers to give scientific creationism "equal time" if they taught Darwinian
evolution.2 But the effort proved unsuccessful; the United States Supreme Court
decided that scientific creationism advanced a religious view in the guise of
science and therefore violated the Establishment Clause of the Constitution.
Many proponents of Darwinian evolution greeted the Edwards decision as
officially endorsing neo-Darwinism as the undisputed orthodoxy in public school
science curricula.

Yet the Supreme Court's decision was more careful than that. While finding that
the Louisiana statute failed to comply with the Establishment Clause of the
First Amendment, the Court encouraged "teaching a variety of scientific theories
about the origins of humankind to school children . . . with the clear secular
intent of enhancing the effectiveness of science instruction."3

Within the last decade or so, just such an alternative theory has emerged.
Darwinian theorists have long acknowledged that biological organisms "appear" to
be designed. Oxford zoologist Richard Dawkins, a leading Darwinian spokesman,
has admitted: "Biology is the study of complicated things that give the
appearance of having been designed for a purpose."4 Statements like this echo
throughout the biological literature. Francis Crick, Nobel laureate and
co-discoverer of the structure of DNA, writes, "Biologists must constantly keep
in mind that what they see was not designed, but rather evolved."5 Nevertheless,
Darwinists insist that this appearance of design is illusory since the mechanism
of natural selection entirely suffices to explain the observed complexity of
living things.

Over the last forty years, however, even many evolutionary biologists have
acknowledged fundamental problems with the Darwinian explanation for apparent
design. As a result, an increasing number of scientists have begun to argue that
organisms appear to be designed because they really are designed. These
scientists (known as design theorists) see evidence of actual intelligent design
in biological systems. They argue that, contrary to neo-Darwinian orthodoxy,
nature displays abundant evidence of real, not just apparent, design. As their
numbers have grown, their work has sparked a spirited scientific controversy
over this central issue.

The purpose of this guidebook is to help teachers, school boards, and school
administrators to negotiate the difficult scientific, legal, and pedagogical
issues that arise from the origins controversy. At present many groups advise
educators and administrators to ignore the controversy over design and to
continue to teach a single theoretical viewpoint, ignoring scientific dissent
and parental concerns about dogmatism and intellectual intolerance. In short,
their approach is to suppress the controversy. We believe there is a better way.
We suggest that public schools teach the controversy over biological origins in
a way that faithfully reflects the debate that is actually happening among
scientists.

Several benefits will accrue from a more open discussion of biological origins
in the science classroom. First, this approach will do a better job of teaching
the issue itself, both because it presents more accurate information about the
state of scientific thinking and evidence, and because it presents the subject
in a more lively and less dogmatic way. Second, this approach gives students
greater appreciation for how science is actually practiced. Science necessarily
involves the interpretation of data; yet scientists often disagree about how to
interpret their data. By presenting this scientific controversy realistically,
students will learn how to evaluate competing interpretations in light of
evidence-a skill they will need as citizens, whether they choose careers in
science or other fields. Third, this approach will model for students how to
address differences of opinion through reasoned discussion within the context of
a pluralistic society. Finally, as we will demonstrate, constitutional precedent
now provides ample legal latitude for adopting just such an open approach.
This book addresses three basic questions: (1) Science: Does the discussion of
evidence for intelligent design in biology belong in the science classroom? (2)
Law: Does the law permit the discussion of such evidence in a public school
setting, even if it may have larger philosophical implications? (3) Education:
Does teaching the origins controversy in a more open way constitute good
pedagogy and educational policy?

2. A Brief Overview of Design Theory

How did the astonishing diversity and complexity of life on earth come about?
Could a designing intelligence have had anything to do with the origin of
biological organisms? Darwinian evolutionary biologists say No. They contend
that life arose and diversified by entirely naturalistic processes like random
variation and natural selection. While they admit that many of the complex
features of living systems manifest the "appearance of design," neo-Darwinists
insist that the mechanism of natural selection entirely suffices to explain this
appearance without invoking an actual designing intelligence.

But if evidence can count against a theory, it must be possible for evidence
also to count for that same theory. Scientific refutation is a double-edged
sword. For a claim to be scientifically refutable, it must have the possibility
of being true. Further, because scientific theories never claim to be the final
truth, new evidence can always challenge a currently dominant theory and provide
new support for a previously discarded one.

Since the 1980s, a growing number of scientists have argued that precisely such
evidences have come to light in the origins controversy. They argue that,
contrary to neo-Darwinian orthodoxy, nature displays abundant evidence of design
by an intelligent agent. These scientists, known as design theorists, advocate
an alternative theory of biological origins known as design theory or the theory
of intelligent design (sometimes abbreviated simply design or intelligent
design). They have developed design theory in scientific and scholarly journals
as well as in such books as Darwin's Black Box, The Mystery of Life's Origin,
Mere Creation, The Design Inference, and the supplemental high school textbook
Of Pandas and People.6 Design theory holds that intelligent causes rather than
undirected natural causes best explain many features of living systems. During
recent years design theorists have developed both a general theory for detecting
design and many specific empirical arguments to support their views.

A Theory of Intelligent Design

Developments in the information sciences have recently made possible the
articulation of criteria by which intelligently designed systems can be
identified by the kinds of patterns they exhibit. In a recent book titled The
Design Inference, published by Cambridge University Press, Baylor University
probability theorist William Dembski shows how rational agents often infer or
detect the prior activity of other designing minds by the character of the
effects they leave behind. Archaeologists assume, for example, that rational
agents produced the inscriptions on the Rosetta Stone. Insurance fraud
investigators detect certain "cheating patterns" that suggest intentional
manipulation of circumstances rather than "natural" disasters. Cryptographers
distinguish between random signals and those that the carry encoded messages.
Dembski's work shows that recognizing the activity of intelligent agents
constitutes a common and fully rational mode of inference.7

More importantly, Dembski's work explicates the criteria by which rational
agents recognize the effects of other rational agents and distinguish them from
the effects of natural causes. Dembski argues that systems that manifest the
joint properties of "high complexity"8 (or low probability) and "specification"9
invariably result from intelligent causes rather than from chance or
physical-chemical laws. These criteria are equivalent (or isomorphic) to what
information theorists call specified information or information content.
Dembski's work demonstrates that "high information content" reliably signals
prior intelligent activity.

This theoretical insight agrees with common, as well as scientific, experience.
For example, no one would attribute hieroglyphic inscriptions to natural forces
such as wind or erosion; instead, one immediately recognizes the activity of
intelligent agents. Dembski's work shows why: Our reasoning involves a
comparative evaluation process that he represents with a device he calls the
explanatory filter.10 The filter outlines the method that scientists (as well as
ordinary people) use to decide among three types of causal explanations-chance,
necessity, and design. His explanatory filter constitutes, in effect, a
scientific method for detecting the effects of intelligence.

Design Theory: An Empirical Basis?

Along with their formal theory articulating the criteria by which intelligent
causes can be detected in the "echo of their effects," design theorists point to
specific empirical evidence of design, both in biology and physics. They argue
that biological organisms in particular display distinctive features of
intelligently designed systems. Indeed, a growing number of scientists are now
willing to consider alternatives to strictly naturalistic origins theories. Many
now see especially striking evidence of design in biology, even if much of it is
still reported by scientists and journals that presuppose a neo-Darwinian
perspective.
For example, in 1998 the premier biology journal Cell featured a special issue
on "Macromolecular Machines." All cells use complex molecular machines to
process information, build proteins, and move materials back and forth across
their membranes. Bruce Alberts, president of the National Academy of Sciences,
introduced this issue with an article titled "The Cell as a Collection of
Protein Machines." In it he stated that
We have always underestimated cells. . . . The entire cell can be viewed as a
factory that contains an elaborate network of interlocking assembly lines, each
of which is composed of a set of large protein machines. . . . Why do we call
the large protein assemblies that underlie cell function protein machines?
Precisely because, like machines invented by humans to deal efficiently with the
macroscopic world, these protein assemblies contain highly coordinated moving
parts.11

Alberts notes that molecular machines strongly resemble machines designed by
human engineers. Nevertheless, as an orthodox neo-Darwinist, he denies any role
for actual, as opposed to apparent, design in the origin of these systems.
In recent years, however, some scientists have presented a formidable challenge
to the neo-Darwinian view. For example, in Darwin's Black Box Lehigh University
biochemist Michael Behe shows that neo-Darwinists have failed to explain the
origin of complex molecular machines in living systems.12 Behe examines the acid
powered rotary engines that turn the whip-like flagella of certain bacteria. He
shows that the intricate machinery in this molecular motor-including a rotor, a
stator, O-rings, bushings, and a drive shaft-requires the coordinated
interaction of some forty complex protein parts. Yet the absence of any one of
these proteins would result in the complete loss of motor function.13 To assert
that such an irreducibly complex engine emerged gradually in a Darwinian fashion
strains credulity. Natural selection selects functionally advantageous systems.
Yet motor function only ensues after all necessary parts have independently
self-assembled, an astronomically improbable event.

Thus, Behe insists that Darwinian mechanisms cannot account for the origin of
molecular motors and other such irreducibly complex systems that require the
coordinated interaction of multiple independent protein parts. To emphasize his
point, Behe has conducted a literature search of relevant technical journals.14
He has found a complete absence of gradualistic Darwinian explanations for the
origin of the systems and motors that he discusses. Behe concludes that
neo-Darwinists have not explained or, in most cases, even attempted to explain,
how the appearance of design in irreducibly complex systems arose
naturalistically.

Instead, he notes that we know of only one cause sufficient to produce
functionally integrated, irreducibly complex systems, namely, intelligent
design. Whenever we encounter irreducibly complex systems and we know how they
arose, invariably a designer played a causal role. Thus, Behe concludes on the
basis of our knowledge of present cause-and-effect relationships (that is, in
accord with the standard uniformitarian method employed in the historical
sciences), that the molecular machines and complex systems we observe in cells
must have also had an intelligent cause.15 In brief, molecular motors appear
designed because they were designed.

Behe's book, published in 1996, has received international acclaim and critique
in over eighty book reviews. Generally, critics have conceded the scientific
accuracy of Behe's claims (including his literature search showing the complete
absence of neo-Darwinian explanations for many of the irreducibly complex
systems that he examines). Instead, they have objected to his argument on
philosophical and methodological grounds. Behe's critics claim that to infer an
intelligent cause for the origin of these complex systems, as Behe does, "goes
beyond science." (We discuss this objection in section 3 below.)
Even so, Behe is not alone in his conclusions. Consider the case of Dean Kenyon,
a biologist at San Francisco State University.16 For nearly twenty years
Professor Kenyon was a leading evolutionary theorist who specialized in
origin-of-life biology. While at UC Berkeley in 1969 he wrote a book,
Biochemical Predestination, that defined evolutionary thinking on the
origin-of-life for over a decade.17 Kenyon's theory attempted to show how
complex biomolecules such as proteins and DNA might have "self-organized" via
strictly chemical forces.

Yet as Kenyon reflected more on the recent discoveries in molecular biology
about the complexity of living things, he began to wonder whether undirected
chemistry could really produce the information-rich molecules found in even the
simplest of cells. Studies of the genetic molecule DNA revealed that it
functions in much the same way as computer software or alphabetic text in a
book. As Richard Dawkins notes, "The machine code of the genes is uncannily
computer-like."18 Or, as software innovator Bill Gates notes, "DNA is like a
computer program, but far, far more advanced than any software we've ever
created."19

Indeed, studies in molecular biology and the information sciences have shown
that the assembly instructions inscribed along the spine of DNA display the
characteristic hallmarks of intelligently encoded information-indeed, both the
complexity and specificity of function that, according to Dembski's theory,
indicates intelligent design.20 As a result of this evidence, Kenyon and many
other scientists (notably Charles Thaxton, Walter Bradley, and Roger Olsen) have
concluded that the specified complexity or high information content of DNA-like
the information in a computer program, an ancient scroll, or in this very
book-had an intelligent source.21

In recent years the fossil record has also provided new support for design.
Fossil studies reveal a "biological big bang" near the beginning of the Cambrian
period 530 million years ago. At that time roughly fifty separate major groups
of organisms or "phyla" (including most all the basic body plans of modern
animals) emerged suddenly without evident precursors. Although neo-Darwinian
theory requires vast periods of time for the step-by-step development of new
biological organs and body plans, fossil finds have repeatedly confirmed a
pattern of explosive appearance followed by prolonged stability of living forms.
Moreover, the fossil record shows a "top-down" hierarchical pattern of
appearance in which major structural themes or body plans emerge before minor
variations on those themes.22 Not only does this pattern directly contradict the
"bottom-up" pattern predicted by neo-Darwinism, but as University of San
Francisco marine paleobiologist Paul Chien and several colleagues have argued,23
it also strongly resembles the pattern evident in the history of human
technological design, again suggesting actual (i.e., intelligent) design as the
best explanation for the data.

Other scientists now see evidence of design in the information processing
systems of the cell, the signal transduction circuitry of the cell, the
complexity and specificity of proteins, the end-directed embryological processes
of organismal development, the complexity of the human brain, and even the
phenomenon known as homology (evidence previously thought to provide unequivocal
support for a neo-Darwinian perspective).24 Design theorists have begun to
marshal an impressive array of empirical evidence in support of their
perspective, thus challenging standard evolutionary theories for the origin and
development of life across a variety of subdisciplines within biology.
Of course, the legal and educational point at issue is not whether design
theorists are right in their scientific claims, but whether their work should be
discussed in public school science classrooms. Assuming it is legally
permissible (we consider this issue in due course), should students be told that
there are well-credentialed scientists (like Behe, Kenyon, Thaxton, Chien, and
Dembski) who are publishing articles and books that explicitly challenge the
neo-Darwinian denial of (actual) design in biology?

The preceding discussion demonstrates that, right or wrong, the work of such
scientists is clearly germane to the topic of biological origins. It is
noteworthy that Darwin's theory attempted to explain the appearance of design in
biology without reference to an actual designer. Thus, it is misleading to
suggest, as many do, that Darwinism and design address two fundamentally
different topics, the one scientific and the other religious. Rather, both
Darwinism and design represent competing answers to the very same question: How
did living forms (with their appearance of design) arise and diversify on earth?
At present, many biology texts routinely recapitulate Darwinian arguments
against intelligent design and for the sufficiency of an undirected mechanism of
evolutionary change. Clearly, good science education requires that students
learn and understand the evidence and arguments for a neo-Darwinian
interpretation of the history of life. But shouldn't students also know the
arguments against the sufficiency of the neo-Darwinian mechanism and for design,
especially now that many well-credentialed contemporary scientists are making
these arguments in print?

Of course, design theory is relatively new, and teachers may require some time
to adjust their teaching, especially given that few textbooks address the
subject (a notable exception being Of Pandas and People). But the relative
novelty of design does not justify its exclusion, either on legal or pedagogical
grounds. Indeed, quite the reverse is the case. Good teachers know that exposing
students to new (and even controversial) ideas can stimulate student engagement
and interest in a subject and lead to greater subject mastery. Thus, one must
ask: Why wouldn't teachers, school boards, and parents want their students
exposed to competing interpretations of the scientific evidence relevant to the
origins controversy?

3. Is Design Theory Science? - Darwinism, Design, and Demarcation
Critics of design theory generally do not dispute the data (as opposed to the
interpretation) that design theorists marshal in support of their view, nor do
they disagree that some evidences might be interpreted to support the idea of
intelligent design. They argue instead that the very idea of intelligent design
is inherently unscientific-that design theory does not qualify as science
according to established definitions of the term. To justify this claim, critics
cite various definitional or "demarcation" criteria that purport to define
science and distinguish it (or provide demarcation) from pseudo-science,
metaphysics, and religion. These kinds of arguments have previously played an
important role in framing the scientific and therefore legal status of creation
science (or scientific creationism). Moreover, many continue to use these
arguments to cast doubt on the scientific status of other alternatives to
strictly naturalistic origins theories, including design theory.25

McLean v. Arkansas and the Definition of Science

In 1982 a federal judge adopted a five-point definition of science as part of
his finding that a law requiring Arkansas public schools to teach creation
science alongside standard neo-Darwinian theory was unconstitutional.26 While
there are decisive differences between design theory and creation science (as
detailed in section 6 below) critics of design theory often rely on the McLean
criteria to establish definitional or methodological norms.
In McLean, Judge William Overton ruled that an Arkansas law requiring the
teaching of creation science in public schools violated the First Amendment's
Establishment Clause.27 The judge based his decision not only on the
Establishment Clause, but on a finding that so-called creation science does not
qualify as science.28 Moreover, he reasoned that because creation science does
not qualify as science, it constitutes religion. In making its determination,
the court relied upon the expert testimony of the Darwinian philosopher of
science Michael Ruse. In his testimony, Ruse asserted a five-point definition of
science that provided allegedly normative criteria for determining whether a
theory qualifies as scientific.29 Any theory, according to Ruse, which failed to
meet these five criteria could not qualify as scientific.30
According to Ruse, for a theory to achieve scientific status it must be:

guided by natural law,
explanatory by natural law,
testable against the empirical world,
tentative, and
falsifiable.31

Ruse further testified that scientific creationism-in part because it invoked
the singular action of a creator as the cause of certain events in the history
of life-could never meet these criteria. Thus, he concluded that creationism
might be true, but it could never qualify as science. Judge Overton ultimately
agreed, adopting Ruse's five demarcation criteria as part of his opinion.
Although this case was in some ways superseded by the subsequent ruling of the
United States Supreme Court in Edwards v. Aguillard,32 (discussed below in
section 5), the McLean case, and the philosophy of science that underwrites it,
pose an implied challenge to the scientific status of all theories of origins
(including design theory) that invoke singular, intelligent causes as opposed to
strictly material causes. If design theory does not qualify as science, as Ruse
testified and the court ruled concerning creation science, then at least as a
pedagogical matter design theory does not belong in the science classroom.
The Demise of Demarcation Arguments

Notwithstanding the favorable reception that Michael Ruse's arguments enjoyed in
Judge Overton's courtroom, many prominent philosophers of science including
Larry Laudan and Philip Quinn,33 (neither of whom supported creation science's
empirical claims), soon repudiated Ruse's testimony on the grounds that, as
Laudan argued, it "canoniz[ed] a false stereotype of what science is and how it
works."34 These philosophers of science insisted that Ruse's testimony
egregiously misrepresented contemporary thinking in the philosophy of science
about the status of the demarcation problem. Indeed, it now seems clear for
several reasons that the philosophy of science provides no grounds for
disqualifying non-materialistic alternatives to Darwinism as inherently
"unscientific."

First, as Laudan noted, philosophers of science have generally abandoned
attempts to define science by reference to abstract demarcation criteria.
Indeed, they have found it notoriously difficult to define science generally via
the kind of methodological criteria that Ruse and the court promulgated in the
McLean case-in part because proposed demarcation criteria have inevitably fallen
prey to death by counterexample. Well-established scientific theories often lack
some of the presumably necessary features of true science (e.g., falsifiability,
observability, repeatability, and use of law-like explanation), while many
poorly supported, disreputable or "crank" ideas often meet some of these same
criteria.

Consider, for instance, the criteria of falsifiability and tentativeness, two
key and related litmus tests in the 1981 trial.35 Contrary to Ruse's assertion
that all truly scientific theories are held tentatively by their proponents and
are readily falsifiable by contradictory evidence, the history of science tells
a very different story. As Imre Lakatos, one of the premier historians and
philosophers of science of the twentieth century, showed in the 1970s, some of
the most powerful scientific theories have been constructed by those who
stubbornly refused to reject their theories in the face of anomalous data.36 For
example, on the basis of his theory of universal gravitation, Isaac Newton made
a number of predictions about the position of planets that did not materialize.
Nevertheless, rather than rejecting the notion of universal gravitation, he
refined his auxiliary assumptions (e.g., the assumption that planets are
perfectly spherical and influenced only by gravitational force) and left his
core theory in place. As Lakatos showed, the explanatory flexibility of Newton's
theory in the face of apparently falsifying evidence turned out to be one of its
greatest strengths. Such flexibility emphatically did not compromise the
scientific status of universal gravitation, as Ruse's definition of science
would imply.37

On the other hand, the history of science is littered with the remains of failed
theories that have been falsified, not by the air-tight disproof of a single
anomaly, but by the judgment of the scientific community concerning the
preponderance of data. Are such falsified, and therefore falsifiable, theories
(e.g., the flat earth, phlogiston, geocentricism, and flood geology) more
scientific than successful theories (such as Newton's was in, say, 1750) that
possess wide-ranging explanatory power?

As a result of such contradictions, most contemporary philosophers of science
have come to regard the question "what distinguishes science from non-science"
as both intractable and uninteresting. Instead, philosophers of science have
increasingly realized that the real issue is not whether a theory is
"scientific" according to some abstract definition, but whether a theory is true
or warranted by the evidence. As Laudan puts it, "If we could stand up on the
side of reason, we ought to drop terms like 'pseudo-science'. . . they do only
emotive work for us."38 Martin Eger offers this summary: "Demarcation arguments
have collapsed. Philosophers of science don't hold them anymore. They may still
enjoy acceptance in the popular world, but that's a different world."39

There is a second flaw in the contention that design is (in principle)
unscientific: Even if we assume for the sake of argument that criteria could be
found to demarcate science in general from non-science in general, the specific
demarcation criteria used in the McLean case have proven utterly incapable of
discriminating the scientific status of materialistic and non-materialistic
origins theories.40 Laudan noted, for example, that Judge Overton's opinion made
much of creation science's inability to be tested or falsified. Yet as Laudan
argues, the claim that

[To claim that] creationism is neither falsifiable or testable is to assert that
creationism makes no empirical assertions whatever. That is surely false.
Creationists make a wide range of testable assertions about matters of fact.
Thus, as Judge Overton himself grants (apparently without seeing the
implications) creationists say that the earth is of very recent origin . . . ;
they argue that most of the geological features of the earth's surface are
diluvial in character . . . ; they assert the limited variability of species.
They are committed to the view that since animals and man were created at the
same time, the human fossil record must be paleontologically co-extensive with
the record of lower animals.41

Laudan notes that, although creation scientists "are committed to a large number
of factual claims," available evidence contradicts their empirical claims. As he
explains,

No one has shown how to reconcile such claims with the available
evidence-evidence which speaks persuasively to a long earth history, among other
things. In brief, these claims are testable, they have been tested, and they
have failed those tests.42

Yet, Laudan notes, if creationist arguments have been shown false by empirical
evidence (as Ruse and other expert witnesses at the Arkansas trial no doubt
believed), then creation science must be falsifiable. But if it is falsifiable,
then by Ruse's own criterion, it must qualify as scientific.

Similar problems have afflicted Ruse's other demarcation criteria. For example,
insofar as both creationist and evolutionary theories make historical claims
about past causal events, both theories offer causal explanations that do not
explain by natural law. The theory of common descent, a central thesis of
Darwin's Origin of Species, does not explain by natural law. Common descent
explains by postulating hypothetical historical events (and a pattern of events)
which, if actual, would explain a variety of presently observed data.43 The
theory of common descent makes claims about what happened in the past-namely,
that unobserved transitional organisms existed forming a genealogical bridge
between presently existing life forms. Thus, on the theory of common descent, a
postulated pattern of events, not a law, does the main explanatory work.
Similarly, as Laudan notes, scientists often make existence claims about past
events or present processes without knowing the natural laws on which they
depend. As he notes, "Darwin took himself to have established the existence of
[the mechanism of] natural selection almost a half century before geneticists
were able to lay out the laws of heredity on which natural selection
depended."44 Thus, Ruse's second demarcation criterion would require, if applied
consistently, classifying both creation science and classical Darwinism (as well
as much of neo-Darwinism) as unscientific. As Laudan notes,
If we took the McLean opinion seriously, we should have to say that . . . Darwin
[was] unscientific; and, to take an example from our own time, it would follow
that plate tectonics is unscientific because we have not yet identified the laws
of physics and chemistry which account for the dynamics of crustal motion.45
Finally, several analyses of the demarcation problem have suggested that
naturalistic and non-naturalistic origins theories (including both Darwinism and
design theory) are methodologically equivalent, both in their ability to meet
various demarcation criteria and as historical theories of origins. As noted
earlier, Laudan's critique suggests that when the specific demarcation criteria
promulgated in McLean are applied rigidly, they disqualify both Darwinism and
various non-materialistic alternatives. Yet, as his discussion of falsification
suggests, if certain criteria are applied more liberally, then both theories may
qualify as scientific.

More recent studies in the philosophy of science have confirmed and amplified
Laudan's analysis.46 They suggest that philosophically neutral criteria do not
exist that can define science narrowly enough to disqualify theories of creation
or design without also disqualifying Darwinism and other materialistic
evolutionary theories on identical grounds. Either science will be defined so
narrowly as to disqualify both types of theory, or science must be defined more
broadly and the initial reasons for excluding opposing theories evaporate. Thus,
materialistic and non-materialistic origins theories appear to be
methodologically equivalent with respect to a wide range of demarcation
criteria-that is, both appear equally scientific or equally unscientific
provided the same criteria are used to adjudicate their scientific status (and
provided philosophically neutral criteria are used to make such assessments).
Indeed, recent work on the historical sciences has suggested that the
methodological and logical similarity between various origins theories runs
quite deep. Philosopher of biology Elliott Sober has argued that both classical
design arguments and the Darwinian argument for descent with modification
constitute attempts to make "inferences to the best explanation."47 Other work
in the philosophy of science has shown that both Darwinism and design theory
attempt to answer characteristically historical questions; both may have
metaphysical implications or overtones; both employ characteristically
historical forms of inference, explanation, and testing; and, finally, both are
subject to similar epistemological limitations.48

Accordingly, even many of those who previously wielded demarcation arguments as
a way of protecting the Darwinist hegemony in public education, including the
most prominent advocates of these arguments, have either abandoned or repudiated
them.49 For example, Eugenie Scott of the National Center for Science Education
(an advocacy group for an exclusively Darwinist curriculum) no longer seeks to
dismiss creation science as pseudo-science or unscientific; instead she argues
that it constitutes "bad science."50 Scott no longer repudiates design theory as
inherently "unscientific," as she did as recently as 1994; she now argues that
it constitutes a minority viewpoint within science.51 Similarly, during a talk
to the American Association for the Advancement of Science (AAAS) in 1993,
Michael Ruse himself repudiated his previous support for the demarcation
principle by admitting that Darwinism (like creationism) "depends upon certain
unprovable metaphysical assumptions."52 In his more recent scholarship Ruse has
openly argued that evolutionary theory has often functioned as a kind of
"secular religion."53

Summary

The demise of demarcation arguments within the philosophy of science has made it
difficult for critics to label design theory as unscientific in principle. As
Laudan and others have argued, the status and merit of competing origins
theories must be decided on the basis of empirical evidence and argument, not on
abstract philosophical or methodological litmus tests. Yet as we have seen,
design theorists in particular make extensive appeals to such empirical evidence
and argument. Moreover, their arguments are now informed by an empirically based
and mathematically sophisticated theory for detecting design. If design theory
has both theoretical and evidential support, and if it meets abstract
definitional criteria of scientific status equally well as its main theoretical
rivals, then it is natural to ask, On what grounds can design theory be excluded
from the public school science curriculum?

4. The Legal Parameters: Is It Religion?

Rather than argue that design theory lacks scientific merit, many critics claim
that it should be excluded because the courts have determined that it
constitutes an unconstitutional intrusion of religion into the science
curriculum. Thus, even though Edwards v. Aguillard encourages the teaching of
other scientific theories, and even though design theory might qualify as being
scientific, these critics have argued that design theory is nonetheless a
religious view and must therefore be excluded from the public school science
curriculum.

For instance, in reviewing the intelligent design textbook Of Pandas and
People,54 Jay Wexler concedes that design theory could, for the sake of
argument, be classified as science.55 Nevertheless, he argues that teaching
design theory would offend the Establishment Clause of the First Amendment:56
"The First Amendment forbids the government from establishing religion; it does
not require it to teach science."57 Consequently, if design theory is both a
scientific theory and a religious doctrine, the same limitations will apply to
it that apply to teaching traditional religions like Christianity, Judaism, or
Buddhism.58

But design theory does not fit the dictionary definition of religion, or the
specific test for religion adopted by the Ninth Circuit in its recent cases
concerning the establishment of religion. Consider, for example, Peloza v.
Capistrano Unified School District.59 Peloza sued the Capistrano school district
in which he was a teacher. He claimed that by forcing him to teach
"evolutionism" and "secular humanism," the school district had created an
"establishment of religion."60 The court rejected this claim, finding that
neither "evolutionism [nor] secular humanism are 'religions' for Establishment
Clause purposes."61 The court's finding was based on both the "dictionary
definition of religion and the clear weight of the case law," thereby
contradicting Peloza's claim.62 The court also cited the recommendation by
Harvard law professor Laurence Tribe that "anything 'arguably non-religious'
should not be considered religious in applying the Establishment Clause."63
Similarly, in Alvarado v. City of San Jose64 a group of citizens brought suit
against the city of San Jose, alleging that the city's installation of a
sculpture of the Aztec god Quetzalcoatl violated the Establishment Clause.65 The
court ruled that the sculpture was not religious.66 In making its ruling, the
court relied on a three-part test to define religion:67

First, a religion addresses fundamental and ultimate questions having to do with
deep and imponderable matters. Second, a religion is comprehensive in nature; it
consists of a belief-system as opposed to an isolated teaching. Third, a
religion often can be recognized by the presence of certain formal and external
signs.68

The court further clarified this test by noting that "formal and external signs"
include "formal services, ceremonial functions, the existence of clergy,
structure and organization, efforts at propagation, observance of holidays and
other similar manifestations associated with the traditional religions."69 Taken
together, the Ninth Circuit cases of Peloza and Alvarado provide a broad
definition of religion for Establishment Clause purposes.

Clearly, design theory does not satisfy this three-part test. Take the first
part. Design theory does not attempt to address "fundamental and ultimate
questions" concerning "deep and imponderable matters."70 On the contrary, design
theory seeks to answer a question raised by Darwin as well as contemporary
biologists: How did biological organisms acquire their appearance of design?
Design theory, unlike neo-Darwinism, attributes this appearance to a designing
intelligence, but it does not address the characteristics or identity of the
designing intelligence. To be sure, design theory is consistent with theism and
adds plausibility to the classical design arguments for the existence of God.71
But this compatibility does not make it a religious belief. As Justice Powell
wrote in his concurrence to Edwards v. Aguillard: "A decision respecting the
subject matter to be taught in public schools does not violate the Establishment
Clause simply because the material to be taught 'happens to coincide or
harmonize with the tenets of some or all religions.'"72 According to Powell,
interference by the federal courts in the decisions of local and state
educational officials is justified "only when the purpose for their decisions is
clearly religious."73

The second part of the test identifies religion with a comprehensive belief
system "as opposed to an isolated teaching."74 Design theory does not offer a
theory of morality or metaphysics, or an opinion on the prospects for an
afterlife. It requires neither a belief in divine revelation nor a code of
conduct; nor does it purport to uncover the underlying meaning of the universe
or to confer inviolable knowledge on its adherents. It is simply a theory about
the source of the appearance of design in living organisms. It is a clear
example of an "isolated teaching," one that has no necessary connections to any
spiritual dogma or church institution. Design theory has no religious
pretensions. It simply tries to apply a well-established scientific method to
the analysis of biological phenomena.

The third part of the test concerns the "presence of certain formal and external
signs."75 The court provided a list of such signs, including liturgy, clergy,
and observance of holidays. Obviously, design theory has none of these-no sacred
texts; no ordained ministers, priests, or religious teachers; no "design theory
liturgies"; no holidays; and no institutional structures like those of religious
groups. Design theorists have formed organizations and institutes, but these
resemble other academic or professional associations rather than churches or
religious institutions.76

According to the court's three-part test, design theory should not be classified
as religion. To say that, however, is not to suggest that it has no religious
implications. Design theory argues that a designing intelligence is responsible
for the complex, information-rich structures of biology. Students who believe in
God as creator may therefore find support for their faith from design theory and
identify the designing intelligence responsible for biological complexity with
the God of their religious belief. Alternatively, students with no religious
convictions may find that design theory leads them to ask theological questions
and to inquire into the identity of the designing intelligence responsible for
biological complexity.

This potential for religious extrapolation, however, does not make design theory
a religious doctrine. Nor is this potential unique to design theory. It applies
equally to Darwinism. Darwinism, which holds that life originated and evolved
via an undirected natural process, implies that common religious beliefs about
the origin and purpose of human life are, if not false, then implausible.
Indeed, a host of prominent neo-Darwinian scientists and social thinkers-from
Douglas Futuyma to William Provine to Stephen Jay Gould-have insisted that
Darwinism has made traditional beliefs about God and humanity untenable.
Consider the following statements by Gould:

"Biology took away our status as paragons created in the image of God. . .
."77

"Before Darwin, we thought that a benevolent God had created us."78
"Why do humans exist? . . . I do not think that any 'higher' answer can be
given. . . . We are the offspring of history, and must establish our own paths
in this most diverse and interesting of conceivable universes-one indifferent
to our suffering, and therefore offering us maximal freedom to thrive, or to
fail, in our own chosen way."79

Contrary to the popular "just-the-facts" stereotype of science, many scientific
theories have larger ideological and religious implications. Origins theories in
particular have unavoidable philosophical and religious overtones. Theories
about where the universe, life, and humanity came from invariably affect our
perspectives about human nature, morality, and beliefs about ultimate reality.
As many prominent evolutionary biologists have made clear, neo-Darwinian
evolutionary theory does not maintain strict neutrality on such questions.
Darwinism (in both its classical and contemporary versions) insists that living
systems organized themselves into increasingly complex structures without
assistance from a guiding intelligence. Chemical evolutionary theorists likewise
insist that the first life arose from brute chemistry. The Oxford zoologist
Richard Dawkins has dubbed this the "blind watchmaker" thesis. He and other
leading evolutionary theorists claim that biological evidence overwhelmingly
supports this purposeless and fully materialistic account of creation. Thus
George Gaylord Simpson, the leading neo-Darwinist a generation back, could
claim: "Man is the result of a purposeless and natural process that did not have
him in mind. He was not planned."80

Accordingly, many major biology texts present evolution as a process in which a
purposeful intelligence (such as God) plays no detectable role. As Miller and
Levine put it, evolution process is "random and undirected" and occurs "without
plan or purpose."81 Some texts even state that Darwin's theory has profoundly
negative implications for theism, and especially for its belief in the
purposeful design of nature. As Douglas Futuyma's biology text puts it: "By
coupling the undirected, purposeless variations to the blind, uncaring process
of natural selection, Darwin made the theological or spiritual explanations of
the life processes superfluous."82

The content of a scientific theory, and not its implications, determines its
legal status in public school science classrooms. Otherwise, the anti-theistic
implications of neo-Darwinism (as articulated by some of its chief advocates)
would disqualify it from inclusion in the curriculum. Obviously, such an outcome
is unthinkable. Yet, if the implications, rather than the specific content, of
neo-Darwinism and design theory were at issue, then arguably neither theory
could pass constitutional muster. This result would not only undercut science
education, but also violate constitutional precedents. One of the few fixed
points in Establishment Clause jurisprudence during the last half-century has
been that incidental harmonies with religious practices and beliefs do not
disqualify secular concepts under the First Amendment.83
5. Edwards v. Aguillard

The U.S. Supreme Court has ruled that educators and school officials may include
non-Darwinian scientific theories alongside Darwinism in the science curriculum
of public schools. The principal case in which the Court addressed the teaching
of origins in the public schools is Edwards v. Aguillard. The background of this
case is as follows. In the early 1980s creationists in Louisiana sought to
introduce scientific creationism into the Louisiana public school system. As a
result, the Louisiana legislature passed a law titled the "Balanced Treatment
for Creation-Science and Evolution-Science in Public School Instruction Act."84
The Act did not require teaching either creationism or evolution, but did
require that when one theory was taught, the other theory had to be taught as
well.85

Several parents and concerned citizens challenged the constitutionality of the
Act in Federal Court.86 They argued that the Act violated the First Amendment's
Establishment Clause, which prohibits the government from officially endorsing a
religious belief.87 The State responded that the Act did not violate the First
Amendment because it had the legitimate secular purpose of strengthening and
broadening the academic freedom of teachers.88 The district court and the Court
of Appeals for the Fifth Circuit, however, found that the State's actual purpose
was to promote the religious doctrine of scientific creationism (known also as
creation science).89 The Supreme Court granted certiorari and heard arguments by
both sides.90 On June 19, 1987 the Court issued its ruling in the case.91
The Court, in a majority opinion written by Justice Brennan, ruled that the Act
constituted an unconstitutional infringement on the Establishment Clause of the
First Amendment,92 based on the Lemon test.93 This test, which was first
enunciated by the Court in Lemon v. Kurtzman,94 consists of three prongs:
The government's action must not promote a particular religion or religious
view;

The government's action must not have the primary effect of either advancing
or inhibiting religion; and

The government's action must not result in an "excessive entanglement" of the
government and religion.95

If any of these three prongs is violated, the government's action is deemed
unconstitutional under the Establishment Clause.96 The first of these prongs has
become known as the "purpose prong." The Court found that the Act violated the
purpose prong and was therefore unconstitutional.97 The Court did not consider
whether the second and third prongs were also violated.

The Court ruled that government intention to promote religion is clear "when the
State enacts a law to serve a religious purpose."98 Since the legislative
history of the Act constantly referenced the religious views of the legislators,
the Court became suspicious of the State's claim that the Act supported academic
freedom.99 The Court found that the intent of the legislator who drafted the Act
was to narrow the science curriculum in order to favor a particular religious
belief (i.e., scientific creationism).100 In support of this finding the Court
noted that the Act's sponsor actually preferred that "neither [creationism nor
evolution] be taught."101 The Court therefore concluded that the Act undermined
both academic freedom and science education.102

The Court also found that the Act did not grant teachers any new flexibility in
teaching science that they did not already possess.103 The Court noted that no
Louisiana law barred the teaching of any scientific theory about biological
origins.104 Thus, since teachers were already free to teach scientific
alternatives to Darwinian evolution, the Court reasoned that the Act did not
expand the academic freedom already enjoyed by teachers in Louisiana.105
Having rejected the State's reason for the Act, the Court then uncovered what it
regarded as the true intent of the Louisiana law: the promotion of a particular
religious view. The Court found that the Act had a "discriminatory preference"
for the teaching of creationism because it required the production of curriculum
guides for creationism.106 Further, it found that only creationism was protected
by certain sections of the Act, and that the Act undercut truly comprehensive
science instruction by limiting the theories of origins to be taught to only
two: evolution and creationism.107 To sum up, the Act directed public resources
to the teaching of a religious doctrine (creationism) in the science curriculum
of public schools; at the same time, the Act discriminated against other
scientific theories of biological origins.

In deciding against the Act, the Court was careful to point out that its
decision in nowise excluded the teaching of other theories about biological
origins. Likewise, the Court left the door open to scientific critiques of
evolution.108 In an illuminating section of the majority opinion, the Court even
stated that teaching a variety of scientific theories about origins "might be
validly done with the clear secular intent of enhancing the effectiveness of
science instruction."109 This intent, however, was not present in the Act
because the primary purpose of the State's action was to promote a particular
religious doctrine, thereby violating the Establishment Clause.

The Court even went so far as to assert that academic freedom requires that
alternative theories about origins be permitted in public school science
classrooms.110 In particular, academic freedom includes a science teacher's
right to teach scientific alternatives to the dominant Darwinian approach to
biological origins.111 As a legitimate scientific theory about biological
origins and development, design theory passes every test set by the Court for
inclusion in public school science curricula.

Nothing in the Supreme Court's decision in Edwards forces local school
districts, the states, or the federal government to bar teaching about design
theory.112 The Court explicitly stated in Edwards that it is constitutionally
lawful for teachers and school boards to expose students to the scientific
problems with current Darwinian theory as well as to any scientific
alternatives.113 In Edwards v. Aguillard, far from placing its imprimatur on
Darwinism, the Supreme Court actually defended the principle of openness in
science education.114

6. Design and Scientific Creationism

Against the clear precedent of Edwards v. Aguillard, some critics of design
theory cite Edwards to support the exclusion of design from public schools. They
charge that design theory is indistinguishable from scientific creationism-that
it is just another name for scientific creationism. And since (as we've just
seen) the Supreme Court's decision in Edwards disallows scientific creationism
in the public school science classroom, they argue that design theory must be
excluded as well.

On the contrary, design theory and scientific creationism differ in
propositional content, method of inquiry, and, thus, in legal status. Recall
that in Edwards the Court decided against the legality of scientific creationism
because it constituted an advancement of religion. The court reached this
decision in large part because the propositional content of scientific
creationism closely mirrors the creation narrative in the book of Genesis.115
While philosophers of science now agree that the scientific status of an idea
does not depend upon its source, the Court has held that the legal status of an
idea-and therefore the legal status of any curriculum based on that idea-does
depend on its source. Thus, given the court's reasoning in Edwards, the teaching
of scientific creationism remains legally problematic.

Nevertheless, the court's decision does not apply to design theory because
design theory is not based on a religious text or doctrine. Design theory begins
with the data that scientists observe in the laboratory and nature, and attempts
to explain them based on what we know about the patterns that generally indicate
intelligent causes. For design theorists, the conclusion of design constitutes
an inference from biological data, not a deduction from religious authority.
Furthermore, the propositional content of design theory differs significantly
from that of scientific creationism. Scientific creationism is committed to the
following propositions:116

There was a sudden creation of the universe, energy, and life from nothing.
Mutations and natural selection are insufficient to bring about the
development of all living kinds from a single organism.

Changes of the originally created kinds of plants and animals occur only
within fixed limits.

There is a separate ancestry for humans and apes.

The earth's geology can be explained via catastrophism, primarily by the
occurrence of a worldwide flood.

The earth and living kinds had a relatively recent inception (on the order of
ten thousand years).

These six tenets taken jointly define scientific creationism for legal purposes.
The Court in Edwards ruled that taken jointly this group of propositions may not
be taught in public school science classrooms. (Nevertheless, the Court left the
door open to some of these tenets being discussed individually.117)
Design theory, on the other hand, asserts the following:

High information content (or specified complexity) and irreducible complexity
constitute strong indicators or hallmarks of past intelligent design.
Biological systems have a high information content (or specified complexity)
and utilize subsystems that manifest irreducible complexity.
Naturalistic mechanisms or undirected causes do not suffice to explain the
origin of information (specified complexity) or irreducible complexity.
Therefore, intelligent design constitutes the best explanation for the origin
of information and irreducible complexity in biological systems.
A comparison of these two lists demonstrates clearly that design theory and
scientific creationism differ markedly in content. Clearly, then, they do not
derive from the same source. Thus, the Court's ruling in Edwards does not apply
to design theory and can provide no grounds for excluding discussion of design
from the public school science curriculum.

7. Viewpoint Discrimination

Often school board members privately support teaching alternatives to Darwinism,
whether because they themselves entertain doubts about Darwinism or because
parents urge them to permit alternative theories. As soon as they publicly
support exposing students to the scientific challenges to Darwinism, however,
these same school board members are often intimidated by the threat of lawsuit.
Maintaining the status quo by leaving Darwinism unchallenged therefore appears
to them the safest course, even if it undercuts the science curriculum.
Nevertheless, as public officials have learned from Lamb's Chapel118 and
Rosenberger,119 discrimination from a misplaced fear over the Establishment
Clause can be even more risky than permitting a diversity of viewpoints.
The Supreme Court has ruled that the First Amendment prohibits the government
from regulating speech based on "its substantive content or the message it
conveys."120 Accordingly, it is unconstitutional under the Free Speech Clause of
the First Amendment to exclude ideas from a public forum simply because of the
content of those ideas. The Court has strongly affirmed this principle in
several opinions,121 addressing issues as diverse as civil rights meetings,122
the funding of a religiously-based student publication at a public
university,123 and the use of a public school auditorium by a religious group to
show a film.124

In its most recent case on viewpoint discrimination-Rosenberger v. Rector and
Visitors of the University of Virginia125-the Supreme Court held that unduly
restricting others out of a misplaced fear of violating the Establishment Clause
is itself unconstitutional.126 Rosenberger, a student at a state university,
objected to the university's refusal to grant his organization's newspaper the
same financial subsidy that had been granted to other campus organizations.127
The university defended its policy by citing the newspaper's evangelical
Protestant perspective. The university held that any funding of the paper would
constitute an endorsement of religion and thus be unconstitutional.128 The
Supreme Court rejected this argument, holding that if a public institution opens
a forum for free speech, it cannot then censor the forum based solely on the
content of the speech expressed.129

The Court noted that viewpoint discrimination is rightly "presumed to be
unconstitutional."130 Nevertheless, when the government itself targets speech
simply because of its content, "the violation of the First Amendment is all the
more blatant."131 Consequently, the Court found that the government must
"abstain" from content-based speech restrictions when the "ideology or the
opinion or perspective of the speaker is the rationale for the restriction."132
The Court affirmed that the government must abstain from content-based
suppression of speech even when the public forum where the speech occurs was
created by the government in the first place.133

The Court's position on viewpoint discrimination allows two exceptions. First,
the government may control access to a non-public forum based "on subject matter
and speaker identity" if the government's action is reasonable given the forum's
purpose and if the action is viewpoint neutral.134 This means that the
government can suppress speech in a non-public forum if the speaker wants to
discuss "a topic not encompassed within the purpose of the forum,"135 or the
speaker is outside of the special class for whom the forum was created.136
Second, if the government is charged with viewpoint discrimination, it can clear
itself of that charge by showing that to permit the speech in question would
violate the Establishment Clause.137

Neither of these exceptions applies to the teaching of design theory. The
overwhelming majority of public schools address the subject of biological
origins in their science curricula. Thus, for public schools or other
governmental agencies to bar the teaching of design theory-which clearly
addresses that topic-undermines the right to free speech.138 While it is true
that the courts have limited the free speech rights of teachers in the public
school context,139 the Constitution's free speech provisions still apply behind
school doors.140 When public schools censor a scientific theory like design
theory, they discriminate against both students and teachers by unfairly
depriving them of the opportunity to examine the full range of scientific
theories about biological origins.

The First Amendment prohibits the government from interfering with people's
right to free speech.141 Teachers have the right to present material that is
appropriate to the subject they are teaching. Likewise, students have the right
to be exposed to material that is appropriate to the subject they are
studying.142 Further, the Supreme Court has found that teachers, students, and
parents have a "liberty interest" under the Fourteenth Amendment's Due Process
Clause not to be prohibited from studying certain subjects.143 A critical aspect
of this liberty interest is academic freedom. Academic freedom allows teachers
to present appropriate material to their students without fear of censorship or
retribution from the government. Academic freedom is essential not only for
teachers to teach effectively, but also for students to explore and develop new
ideas. Without academic freedom, education becomes indoctrination.
The Supreme Court recognized this fundamental right to academic freedom in
Epperson v. Arkansas.144 In that case, the court struck down an Arkansas statute
that restricted the teaching of biological origins.145 The statute prohibited,
with criminal sanction, the teaching of evolution in the public schools of that
state.146 It was challenged by a teacher who claimed that the statute violated
her academic freedom.147 The Supreme Court, in rejecting the Arkansas law as
unconstitutional, strongly upheld the academic freedom of teachers in public
schools.148

The Court found that the First Amendment's guarantees apply to our school
systems, where it is "essential to safeguard the fundamental values of freedom
of speech and inquiry and of belief."149 Quoting Keyishian v. Board of Regents,
the Court made clear that "the First Amendment 'does not tolerate laws that cast
a pall of orthodoxy over the classroom.'"150 Most significantly, the Court found
that the government's power to determine school curricula does not give it the
power to prevent "the teaching of a scientific theory or doctrine where the
prohibition is based upon reasons that violate the First Amendment."151 The same
freedoms that apply to teaching students about Darwinian evolution apply with
equal force to teaching them about design theory.

8. The Authority of the Local School Board

Until recently, Darwinian evolution has monopolized the teaching of biological
origins in public schools. Yet with the accumulation of increasingly persuasive
evidence for design theory, as well as a more careful reflection on the nature
of science itself, the basis for excluding alternative theories has evaporated.
Thus, when science teachers seek to present design theory to their students to
provide a more thorough treatment of biological origins, school officials need
to make every effort not only to encourage them but also to assure that they are
not subjected to unwarranted legal or social intimidation. Indeed, the exclusion
of design theory from public school science curricula may constitute a form of
viewpoint discrimination that not only undermines academic freedom but also
violates the First Amendment's Free Speech Clause.152

Traditionally, local school boards have exercised broad discretion in deciding
what subjects and materials are appropriate for inclusion within the curriculum
of public schools. This discretion extends to the origins issue. The Supreme
Court has repeatedly upheld the freedom of school boards to exercise discretion
in the selection of curriculum materials.153 For instance, Justice Powell, in
his concurrence to Edwards, stressed that the Court's decision in no way
restricted the traditional rights of school boards and other local public
education officials to set the curriculum:

[N]othing in the Court's opinion diminishes the traditionally broad discretion
accorded state and local school officials in the selection of the public school
curriculum.154

The freedom of school boards to determine what can be included in their
curricula is a long-established prerogative. No Supreme Court decision about
biological origins has questioned this freedom. In fact, the Court has upheld
the principle that a school board has the right to decide what subjects will be
taught in its schools, and within broad limits, how those subjects are to be
taught. This is not to say there are no limits to the local school boards'
discretion. Those limits, however, are designed to prevent the discriminatory
exclusion of viewpoints-not to inhibit the teaching of a full range of
scientific theories. Thus, the question is not whether school boards have the
freedom to include design theory in the science curriculum of the public
schools, but whether there is a valid reason to exclude it.

The Supreme Court has ruled that school boards do not enjoy unlimited power to
exclude ideas from the classroom and school libraries. In Board of Education,
Island Trees Union Free School District v. Pico155 a local school board had
removed several books from its public school library system.156 When this
exclusion was challenged, Justice Brennan, writing for the Court, stated that
local school boards cannot remove books from the public school library merely
because the school board disagrees with the ideological content of those books.
Brennan wrote:

[J]ust as access to ideas makes it possible for citizens generally to exercise
their rights to free speech and press in a meaningful manner, such access
prepares students for active participation in the pluralistic, often contentious
society in which they will soon be adult members.157

Schools cannot, by removing material from their libraries, enforce an orthodoxy
prescribing the ideas that can and cannot be presented to students.158 The
students' unimpeded access to ideas is critical if they are to succeed in an
open society where ideas are discussed and disputed.159 If a school board fails
to provide students with reasonable access to ideas, it fails to perform one of
its most crucial functions. The Court distinctly denies school boards the right
to suppress ideas.

To summarize, the safest course is one in which a school board permits a biology
teacher to teach the full range of scientific theories about origins. In doing
so, the board would be following the specific guidance issued in Edwards v.
Aguillard, as well as upholding the more general efforts of the Court to avoid
viewpoint discrimination. On the other hand, a school board that rejects a
teacher's effort to teach the full range of scientific theories would place the
board on a collision course with the First Amendment. Such a board sets itself
the impossible task of specifying precisely what the teacher would be forbidden
to teach: Is it only the theory of intelligent design, or does the prohibition
also include the evidence upon which the theory is based? May the teacher
introduce evidence that contradicts Darwinian expectations? In a misguided
effort to avoid litigation, a school board might very well create its own
minefield of illogical and unenforceable guidelines. Instead, we suggest, the
school board should encourage the biology teacher to teach the controversy. This
approach not only helps a science curriculum fulfill its scientific objectives,
but also provides it with the soundest footing from a legal standpoint.

9. Conclusion

Local school boards and state education officials are frequently pressured to
avoid teaching the controversy regarding biological origins. Indeed, many
groups, such as the National Academy of Sciences, go so far as to deny the
existence of any genuine scientific controversy about the issue.160
Nevertheless, teachers should be reassured that they have the right to expose
their students to the problems as well as the appeal of Darwinian theory.
Moreover, as the previous discussion demonstrates, school boards have the
authority to permit, and even encourage, teaching about design theory as an
alternative to Darwinian evolution-and this includes the use of textbooks such
as Of Pandas and People that present evidence for the theory of intelligent
design.

The controlling legal authority, the Supreme Court's decision in Edwards v.
Aguillard, explicitly permits the inclusion of alternatives to Darwinian
evolution so long as those alternatives are based on scientific evidence and not
motivated by strictly religious concerns. Since design theory is based on
scientific evidence rather than religious assumptions, it clearly meets this
test. Including discussions of design in the science curriculum thus serves an
important goal of making education inclusive, rather than exclusionary. In
addition, it provides students with an important demonstration of the best way
for them as future scientists and citizens to resolve scientific
controversies-by a careful and fair-minded examination of the evidence.

Notes

Ronald L. Numbers, The Creationists (New York: Knopf, 1992), x. This is the
characterization of scientific creationism used in the 1982 Arkansas creation
trial: McLean v. Arkansas Board of Education, 529 F. Supp. 1255 (E.D. Ark.
1982).
See the discussion of Edwards v. Aguillard in section 5.
Edwards v. Aguillard, 482 U.S. 578, 594 (1987).
Richard Dawkins, The Blind Watchmaker: Why the Evidence of Evolution Reveals a
Universe Without Design (New York: Norton, 1987), 1.
Francis Crick, What Mad Pursuit (New York: Basic Books, 1988), 138.
Michael J. Behe, Darwin's Black Box (New York: Free Press, 1996); Charles B.
Thaxton, Walter L. Bradley, and Roger L. Olsen, The Mystery of Life's Origin
(New York: Philosophical Library, 1984); William A. Dembski, ed., Mere
Creation (Downers Grove, Ill.: InterVarsity Press, 1998); William A. Dembski,
The Design Inference (Cambridge: Cambridge University Press, 1998); Percival
Davis and Dean H. Kenyon, Of Pandas and People, 2nd ed. (Dallas: Haughton,
1993). For a guide to the scientific and scholarly literature on design
theory, consult the extensive references in Mere Creation.
Dembski, The Design Inference, 1-35.
Ibid., 92-135, 175-223.
Ibid., 136-174. Complex sequences are those that exhibit an irregular and
improbable arrangement that defies expression by a simple rule or algorithm. A
specification, on the other hand, is a match or correspondence between a
physical system or sequence and a set of independent functional requirements
or constraints. To illustrate these concepts (of complexity and specification)
consider the following three sets of symbols:
* inetehnsdysk]idfawqnz,mfdifhsnmcpew,ms.s/a
* One step for man, one giant step for mankind.
* ABABABABABABABABABABABABAB
Both the first and second sequences shown above are complex because both defy
reduction to a simple rule. Each represents a highly irregular, aperiodic, and
improbable sequence of symbols. The third sequence is not complex, but is
instead highly ordered and repetitive. Of the two complex sequences, only one
exemplifies a set of independent functional requirements-i.e., it is
specified. English has a number of such functional requirements. For example,
to convey meaning in English one must employ existing conventions of
vocabulary (associations of symbol sequences with particular objects,
concepts, or ideas) and existing conventions of syntax and grammar (such as
that every sentence requires a subject and a verb). When arrangements of
symbols match or utilize existing vocabulary and grammatical conventions
(i.e., functional requirements), communication can occur. Such arrangements
exhibit specification. The second sequence ("One step for man, one giant step
for mankind") clearly exhibits such a match between itself and the
pre-existing requirements of vocabulary and grammar. It has employed these
conventions to express a meaningful idea.
Indeed, of the three sequences above only the second ("One step for man, one
giant step for mankind") manifests both the jointly necessary indicators of a
designed system. The third sequence lacks complexity, though it does exhibit a
simple periodic pattern and therefore a specification. The first sequence is,
as we have seen, complex but not specified. Only the second sequence, exhibits
both complexity and specification. Thus, according to Dembski's theory, only
the second sequence, but not the first and third, implicates an intelligent
cause-as indeed our intuition tells us.
Dembski, The Design Inference, 36-47.
Bruce Alberts, "The Cell as a Collection of Protein Machines: Preparing the
Next Generation of Molecular Biologists," Cell 92 (February 8, 1998): 291.
Michael J. Behe, Darwin's Black Box (New York: The Free Press, 1996), 51-73.
Ibid., 69-73.
Ibid., 165-86.
Ibid., 187-208.
Stephen C. Meyer, "A Scopes Trial for the 90s," The Wall Street Journal,
December 6, 1993, A14. See also the follow-up piece "The Harmony of Natural
Law," January 17, 1994, Letters to the Editor, A9.
Dean Kenyon and G. Steinman, Biochemical Predestination (New York:
McGraw-Hill).
Richard Dawkins, River Out of Eden (New York: Basic Books, 1995), 10.
Bill Gates, The Road Ahead (Boulder: Blue Penguin, 1996), 228.
Stephen C. Meyer, "DNA by Design: An Inference to the Best Explanation for the
Origin of Biological Information," Rhetoric & Public Affairs 1(4) (Winter
1998): 519-556. Stephen C. Meyer, "The Explanatory Power of Design: DNA and
the Origin of Information," in Dembski, ed., Mere Creation, 113-147.
Dean Kenyon, Foreword, in Charles B. Thaxton, Walter L. Bradley, and Roger L.
Olsen, The Mystery of Life's Origin, by (New York: Philosophical Library,
1984), v-viii and Thaxton et al., Mystery of Life's Origin, pp. 188-217;
Stephen C. Meyer, "DNA by Design," 540-547; Stephen C. Meyer, " The
Explanatory Power of Design," 134-140.
D. H. Erwin, J. W. Valentine, and J. J. Sepkowski, "A Comparative Study of
Diversification Events: The Early Paleozoic Versus the Mesozoic," Evolution 41
(1987): 1177-1186. Roger Lewin, "A Lopsided Look at Evolution," Science 241
(July 15, 1988): 292.
Stephen C. Meyer, John Wiester, Marcus R. Ross, Paul A. Nelson, and Paul
Chien, "The Cambrian Explosion: Biology's Big Bang," in John A. Campbell, ed.,
Intelligent Design, Darwinism, and the Philosophy of Public Education (East
Lansing, Mich.: Michigan State University, forthcoming).
Jonathan Wells and Paul Nelson, "Homology: A Concept in Crisis," Origins &
Design 18(2) (Fall 1997): 12-19.
The National Academy of Sciences' Teaching About Evolution and the Nature of
Science (Washington, D.C.: National Academy Press, 1998) contains the
following statement by the National Association of Biology Teachers (Appendix
C): The same examination, pondering and possible revision have firmly
established evolution as an important natural process explained by valid
scientific principles, and clearly differentiate and separate science from
various kinds of nonscientific ways of knowing, including those with a
supernatural basis such as creationism. Whether called "creation science,"
"scientific creationism," "intelligent-design theory," "young-earth theory" or
some other synonym, creation beliefs have no place in the science classroom.
Explanations employing non-naturalistic or supernatural events, whether or not
explicit reference is made to a supernatural being, are outside the realm of
science and not part of a valid science curriculum. Evolutionary theory,
indeed all of science, is necessarily silent on religion and neither refutes
nor supports the existence of a deity or deities.
McLean v. Arkansas, 529 F. Supp. 1255 (E.D. Ark. 1982).
Ibid, 1258, 1264. The court specifically found that the Arkansas law "was
passed with the specific purpose by the [Arkansas legislature] of advancing
religion." Ibid, 1264. This placed the law directly in conflict with the First
Amendment's Establishment Clause under the Lemon test. For a statute to pass
constitutional muster under Lemon it must have a secular legislative purpose,
it cannot either advance or inhibit religion, and it must not foster an
excessive entanglement between government and religion. Lemon v. Kurtzman, 403
U.S. 602, 612-13 (1971); Stone v. Graham, 449 U.S. 39, 40 (1980). A violation
of any of the prongs of the Lemon test results in a violation of the
Establishment Clause. Lemon, 613; McLean, 1258. The court in McLean found that
the Arkansas law's purpose was to advance religion in the public schools in
violation of Lemon's first prong. McLean, 1264. The court also found that the
Arkansas law would result in an impermissible entanglement with religion,
violating the third prong of Lemon. Ibid., 1272.
McLean, 1267-1272. The answer, not surprisingly, was "No." Ibid., 1267. The
court's language was unambiguous: "Section 4(a) [of the Arkansas law] lacks
legitimate educational value because 'creation science' as defined in that
section is simply not science." Ibid. See Robert M. Gordon, "McLean v.
Arkansas Board of Education: Finding the Science in 'Creation Science,'"
Northwestern University Law Review 77 (1982): 374.
Ibid.
Ibid. In the court's words, these five points are the "essential
characteristics of science." McLean, 1267.
McLean, 1267. See also Numbers, The Creationists, 250. The court derived these
"essential characteristics of science" from the testimony of several expert
witnesses, the most prominent of whom was Michael Ruse, a philosopher of
science and apologist for Darwinism, who has since changed his mind. See text
accompanying notes 52 to 53 below.
482 U.S. 578 (1986). Cf. section 5.
Larry Laudan, "Science at the Bar-Causes for Concern," in Michael Ruse, ed.,
But Is It Science? (Buffalo, N.Y.: Prometheus Books, 1988), 351-355. Philip
Quinn, "The Philosopher of Science as Expert Witness," in Ruse, ed., But Is It
Science?, 367-385.
Laudan, "Science at the Bar," 351.
Ibid. Cf. 482 U.S. 578 (1986) and section 5.
Imre Lakatos, "Falsification and the Methodology of Scientific Research
Programmes," in Imre Lakatos and Alan Musgrave, eds., Criticism and the Growth
of Knowledge, (Cambridge: Cambridge University Press, 1970), 189-195.
Ibid.
Larry Laudan, "The Demise of the Demarcation Problem," in Ruse, ed., But Is It
Science?, 349.
Martin Eger, quoted by Jon Buell in "Broaden Science Curriculum," Dallas
Morning News, March 10, 1989.
Laudan, "The Demise of the Demarcation Problem"; Laudan, "Science at the Bar,"
354.
Laudan, "Science at the Bar," 352.
Ibid.
Charles Darwin, The Origin of Species by Means of Natural Selection
(Harmondsworth: Penguin Books, 1984 [1859]), 195.
Laudan, "Science at the Bar," 354.
Ibid.
Stephen C. Meyer, "The Nature of Historical Science and the Demarcation of
Design and Descent," in Jitse M. van der Meer, ed., Facets of Faith and
Science (Lanham, Md.: University Press of America, 1996): 91-130. Stephen C.
Meyer, "The Methodological Equivalence of Design and Descent," in The Creation
Hypothesis: Scientific Evidence for an Intelligent Designer (Downers Grove,
Ill.: InterVarsity Press, 1994), 67-112.
Elliott Sober, Philosophy of Biology, (Boulder: Westview Press, 1993), 27-56.
Meyer, "The Nature of Historical Science and the Demarcation of Design and
Descent," 91-130; Meyer, "The Methodological Equivalence of Design and
Descent," 67-112.
Interestingly, there is considerable evidence that some advocates of these
demarcation arguments in the Arkansas trial knew them to be inadequate at the
time of the trial itself. For example, Barry Gross, a philosopher of science
who served as a consultant to the A.C.L.U., has written that he informed the
A.C.L.U. at the time of the trial that the McLean criteria were inaccurate and
inadequate. As he wrote after the trial, "Philosophically, these criteria may
have been acceptable sixty or eighty years ago, but they are not rigorous,
they are redundant, and they take no account of many distinctions [or] of
historical cases. The opinion does not state whether they are singly necessary
or jointly sufficient. One would not recommend to graduate school a student
who could do no better than this." Barry Gross, "Commentary: Philosophers at
the Bar-Some Reasons for Restraint," Science, Technology, and Human Values,
Fall 1983, 36.
Eugenie Scott, Testimony to U.S. Commission on Civil Rights: Schools and
Religion Project, Seattle Briefing, August 21, 1998, 222, 228-229.
Ibid., 208-216.
Ruse, February 13, 1993, Annual Meeting of the AAAS, Speech to the Symposium
on "The New Anti-Evolutionism."
Ibid.
Davis and Kenyon, Of Pandas and People.
Jay D. Wexler, "Of Pandas, People, and the First Amendment: The
Constitutionality of Teaching Intelligent Design in the Public Schools,"
Stanford Law Review 49 (1997): 439. According to Wexler intelligent design
"constitutes an inappropriate endorsement of religious belief, rather than
simply the communication of an alternative scientific theory." Ibid., 444.
The First Amendment's Establishment Clause reads "Congress shall make no law
respecting an establishment of religion." The Establishment Clause has been
extended by the Fourteenth Amendment to prohibit the establishment of religion
at all levels of government (local, state, and federal). Cf. Everson v. Board
of Education, 330 U.S. 1, 8 (1947).
Wexler, "Of Pandas, People, and the First Amendment," 467-468.
For Wexler the scientific merit of intelligent design is "not . . . a very
important question after all." Ibid. The only important question for him is
whether teaching intelligent design violates the requirement that schools
refrain from teaching religion. Wexler regards intelligent design as
inherently religious and therefore as needing to be excluded from the public
school system. Ibid., 468.
Peloza v. Capistrano Unified School District, 37 F.3d 517 (9th Cir. 1994).
Ibid., 519.
Ibid., 521.
Ibid. Here the Ninth Circuit court cited Smith v. Board of School
Commissioners of Mobile County, 827 F.2d 684, 690-695 (11th Cir. 1987); and
U.S. v. Allen, 760 F.2d 447, 450-451 (2d Cir. 1985), n.5.
Ibid., 450-451 citing Allen and quoting Laurence Tribe, American
Constitutional Law (Mineola, N.Y.: Foundation Press, 1978), 827-828.
Alvarado v. City of San Jose, 94 F.3d 1223 (9th Cir. 1996).
Ibid., 1226.
Ibid., 1228-1231.
Ibid., 1229. The test used by the court was first proposed in Malnak v. Yogi,
592 F.2d 197, 200-215 (3d Cir. 1979) (Adams, J., concurring). It was adopted
for use by the Third Circuit in Africa v. Pennsylvania, 662 F.2d 1025, 1031
(3d Cir. 1981) cert. den. 456 U.S. 908 (1982).
Alvarado v. City of San Jose, 94 F.3d 1128 (9th Cir. 1996) quoting Malnak,
1032 (Adams, J., concurring).
Alvarado, 1128 quoting Malnak, 1035-1036 (Adams, J., concurring).
Alvarado, 1228 quoting Malnak, 1032.
Cf. Dembski, ed., Mere Creation.
Edwards, 605 (Powell, J., concurring) quoting McGowan v. Maryland, 366 U.S.
420, 442 (1961).
Edwards, 605.
Ibid.
Ibid.
E.g., Seattle's Discovery Institute (www.discovery.org) and Baylor
University's Michael Polanyi Center (www.baylor.edu/~polanyi).
Stephen Jay Gould, Ever Since Darwin (New York: Norton, 1977), 147.
Ibid., 267.
Stephen Jay Gould, Wonderful Life (New York: Norton, 1989), 322-323.
George Gaylord Simpson, The Meaning of Evolution, rev. ed. (New Haven, Conn.:
Yale University Press, 1967), 345, emphasis added.
Kenneth R. Miller and Joseph Levine, Biology, 4th ed. (Englewood Cliffs, N.J.:
Prentice-Hall, 1998), 658.
Futuyma, Evolutionary Biology, 3.
Edwards, 605.
La.Rev.Stat.Ann. 17:286.1-17.286.7 (West 1982). We will refer to it in this
section simply as "the Act."
Ibid.
Edwards, 581.
Ibid., 581-582.
Ibid., 581.
Ibid., 582.
Ibid.
Ibid., 578.
Ibid., 582.
Ibid., 596.
Lemon v. Kurtzman, 403 U.S. 602, 612-613, 91 S.Ct. 2105, 2111 (1971). The
Lemon test has been widely used by the Supreme Court since its inception. Two
exceptions are Marsh v. Chambers, 463 U.S. 783 (1983) and Rosenberger v.
Rector and Visitors of the University of Virginia, U.S. 115 S.Ct. 2510 (1995).
Neither of these cases, however, deals with the teachings of origins in public
schools.
Lemon, 612-613.
Edwards, 583.
Ibid., 591.
Ibid.
Ibid., 591-593.
Ibid., 587.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid., 590.
Ibid., 588.
Ibid.
Ibid., 593.
Ibid., 594.
Ibid., 587.
Ibid.
Ibid., 596.
Ibid., 593-594.
Ibid.
"The evidence establishes that the definition of 'creation science' . . . has
as its unmentioned reference the first 11 chapters of the Book of Genesis.
Among the many creation epics in human history, the account of sudden creation
from nothing, or creatio ex nihilo, and subsequent destruction of the world by
flood is unique to Genesis." McLean v. Arkansas, 1264-1265.
Numbers, The Creationists, x.
Indeed the Court recognized that some of these individual tenets may form
legitimate topics for scientific discussion, and thus could be included in a
valid public school science curriculum. For example, consider tenet (3):
scientists have increasingly debated whether or not there are limits to
morphological change among biological organisms. According to the
neo-Darwinian synthesis there are no limits whatsoever: all organisms trace
their ancestry back to an original single-celled organism. This view is called
"monophyly" or "common descent" and contrasts with "polyphyly," the view that
some groups of organisms have separate ancestries. Some scientists now cite
evidence from the fossil record, molecular sequence analyses, and
developmental biology to support this latter view. Similarly, many scientists
have expressed increasing skepticism about the sufficiency of neo-Darwinian
mechanisms of mutation and natural selection. Many science teachers will want
to discuss these scientific developments with their students. See Stuart A.
Kauffman, The Origins of Order: Self-Organization and Selection in Evolution
(New York: Oxford University Press, 1993); Rudolf Raff, The Shape of Life:
Genes, Development, and the Evolution of Animal Form (Chicago: University of
Chicago Press, 1996); Bernard John and George L. G. Miklos, The Eukaryote
Genome in Development and Evolution (London: Allen & Unwin, 1988); G. L. G.
Miklos and K. S. W. Campbell, "From Protein Domains to Extinct Phyla: Reverse
Engineering Approaches to the Evolution of Biological Complexities," in Early
Life on Earth, Nobel Symposium No. 84, ed. S. Bengtson (New York: Columbia
University Press, 1993).
Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 394
(1993).
Rosenberger, 2510, 2516.
Id. (plurality opinion) citing Police Dept. of Chicago v. Mosley, 408 U.S. 92,
96 (1972).
Members of the City Council of the City of Los Angeles v. Taxpayers for
Vincent, 466 U.S. 789, 804 (1983) citing Bolger v. Youngs Drug Products Corp.,
463 U.S. 60, 65 (1983); Consolidated Edison Co. v. Public Service Comm'n, 447
U.S. 530, 535-536 (1980); Carey v. Brown, 447 U.S. 455, 462-463 (1980); Young
v. American Mini Theatres, Inc., 427 U.S. 50, 63, 65, 67-68 (1976) (plurality
opinion); Mosely, 92, 95-96. See also Lamb's Chapel, 384, 394; Rosenberger,
2510, 2516 (plurality opinion) citing Turner Broadcasting System, Inc. v. FCC,
512 U.S. 114 S.Ct. 2445, 2458-2459 (1994).
Cornelius v. NAACP Legal Defense and Education Fund, Inc., 473 U.S. 788
(1985).
Rosenberger, 2510.
Lamb's Chapel, 384 .
Rosenberger, 2510.
Ibid., 2516.
Ibid., 2515-2516.
Ibid., 2515.
Ibid., 2516.
Ibid.
Ibid.
Ibid., citing Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 46
(1983).
Ibid. See also Cornelius, 788, 806.
Cornelius, 806 citing Perry Ed. Assn., 49.
Ibid., citing Lehman v. City of Shaker Heights, 418 U.S. 298 (1974).
Ibid., citing Perry Ed. Assn., 49.
Lamb's Chapel, 384, 394 quoting May v. Evansville-Vanderburgh School Corp.,
787 F.2d 1105, 1114 (7th Cir. 1986). The Ninth Circuit in Peloza, 517, 522
held that the interest of avoiding an Establishment Clause violation trumps
free speech rights.
Cornelius, 805.
Peloza, 522 quoting Tinker v. Des Moines Indep. Community School Dist., 393
U.S. 503, 506-507 (1969).
See Tinker, 503, 506 (First Amendment rights hold in the school environment
and apply to teachers and students). More generally see Meyer v. Nebraska, 262
U.S. 390 (1923); Bartels v. Iowa, 262 U.S. 404 (1923); Pierce v. Society of
Sisters, 268 U.S. 510 (1925); West Virginia State Board of Education v.
Barnette, 319 U.S. 624 (1943); Illinois ex rel. McCollum v. Board of Education
of School Dist. No. 71, 333 U.S. 203 (1948); Wieman v. Updegraff, 344 U.S.
183, 195 (1952) (concurring opinion); Sweezy v. New Hampshire, 354 U.S. 234
(1957); Shelton v. Tucker, 364 U.S. 479, 487 (1960); Engel v. Vitale, 370 U.S.
421 (1962); Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967); Epperson
v. Arkansas, 393 U.S. 97 (1968) cited in Tinker, 506-507.
U.S. Const. Amend. 1, as incorporated to the states by the Fourteenth
Amendment.
Tinker, 506.
Ibid.
Epperson, 97.
Ibid., 98.
Ibid.
Ibid., 100.
Ibid., 104-106.
Ibid., 104.
Ibid., 105 quoting Keyishian , 589, 603.
Ibid., 107.
Cf. Rosenberger.
See, for example, Bethel School District No. 403 v. Fraser, 478 U.S. 675, 683
(1986); Tinker, 503, 507; Board of Education Island Trees Union Free School
Distract No. 26 v. Pico, 457 U.S. 853, 864 (1982).
Edwards, 597 (Powell, J., concurring).
Pico, 853.
Ibid.
Ibid., 868.
The Court stated in Tinker, 511 that schools must not attempt to view students
as "closed-circuit recipients of only that which the state chooses to
communicate."
Pico, 868.