An Evolving Conflict
When a Southern California school district decided in January to teach intelligent design in a philosophy class, it seemed a convenient–and legal–way to introduce the concept in public school.
After all, a federal judge in Pennsylvania ruled last year that the idea–which posits that some biological forms are too complex to be explained by anything other than an external designer did not belong in biology class.
“It’s really just a philosophy class,” said El Tejon School Superintendent John Wight, according to news reports. The district’s lawyers reportedly told Wight that the course would pass constitutional muster.
Within a week, parents sued the district, about 60 miles north of Los Angeles, and the course was pulled. Perhaps the only group more relieved than the litigants was none other than the Discovery Institute, the Seattle-based organization pushing for intelligent design. In a Jan. 11 letter, institute attorney Casey Luskin told Wight that the course misrepresented the idea. Intelligent design is not creationism, which the U.S. Supreme Court barred from the public school curriculum in 1987, Luskin wrote.
Luskin believes it is constitutional to posit in a public school class that an intelligent being designed the universe, so long as teachers take no position on the identity of that designer as a particular religion’s concept of God. The philosophy course, he argues, teaches intelligent design as a religious theory, whereas Luskin believes it is a scientific theory.
Says Luskin: “We think intelligent design is a legitimate scientific theory and is constitutional, but we don’t think it should be mandated in schools. When school boards mandate it, that tends to politicize it.”
Undefined Status
Such is the legal conundrum of intelligent design, the controversial idea that is clamoring for equal status with Charles Darwin’s theory of evolution.
A judge orders it out of the science curriculum; lawyers for the group promoting the concept don’t approve of teaching it in philosophy class. School boards propose it often for religious and ethical reasons. Yet Luskin says it’s not about religion at all, but about teaching critical thinking skills, such as reviewing and evaluating competing scientific theories.
Even after U.S. District Judge John E. Jones III of the Middle District of Pennsylvania trashed the concept in December in Kitzmiller v. Dover Area School District, 400 F. Supp. 2d 707, intelligent design still has its champions.
And the legal fight is far from over, according to Richard Thompson, president and chief counsel for the Ann Arbor, Mich.-based Thomas More Law Center, a conservative legal group that argued for the Dover, Pa., school board members. The board had voted to direct biology teachers to explain the “alternate theory” of intelligent design when discussing the scientific theory of evolution in their classrooms.
The center will also represent teachers if they decide to sue for the right to include intelligent design in their classes, says Thompson. “We see that as an issue of academic freedom,” he says. “Teachers who have specialized education in their fields should be allowed to present the course in accord with the latest scientific information as they see fit,” he adds.
Despite the setback in Pennsylvania, Thompson says he continues to talk with school boards and parents elsewhere. In Kansas, there are ongoing attempts to insert intelligent design into the curriculum.
In 1999 the state school board required a form of creationism to be taught in public schools, but new school board members rescinded the policy two years later in the face of a court challenge.
Then in 2005, yet another incarnation of the state school board added to the curriculum a form of intelligent design that hinges on teaching the “flaws” in evolutionary theory. Challenges to that mandate are also under way, according to the National Center for Science Education, which opposes teaching intelligent design in public schools. The Thomas More center also consults with a group of teachers in Michigan who are using Of Pandas and People, a book endorsed by intelligent-design advocates, to supplement science textbooks. School administrators have told the teachers to stop using the book and stick to the approved textbook.
Voters Clean House
In the dover case, the school board members who voted for the intelligent-design policy were defeated in a subsequent election, and the new board declined to appeal the decision.
Thompson says he was disappointed by that, but his organization will continue to push the issue.
Among the group’s prime targets, Thompson says, is the U.S. Supreme Court’s endorsement test used to determine a violation of the First Amendment’s establishment clause.
“Our strategy is to have the Supreme Court revisit the issue of the endorsement test and the concept of looking at the religious motivation of legislators in determining constitutionality,” Thompson says.
Thompson notes that Justice Antonin Scalia has repeatedly criticized legal tests that rely on findings of a legislative body’s “subjective intent” to gauge constitutionality. Instead, Thompson says, the court should abandon the current test, which calls for determining whether a law amounts to an “endorsement” of a particular religious view, in favor of a more narrow rule that would gauge whether a law amounted to a “coercion” to accept a particular religious view.
Under a coercion test, Thompson says, teachers could discuss various theories about the origin of life, as long as they did not require students to agree that one theory has more merit than another.
But L. Lynn Hogue, a constitutional law professor at Georgia State University in Atlanta, says that approach is constitutionally problematic.
“The courts have found repeatedly in many contexts that the public school setting is inherently coercive,” says Hogue, a conservative who has led the Southeastern Legal Foundation.
He nevertheless disputes intelligent design. Even in schools where a majority of parents may agree that intelligent design is a theory that their children should learn, there is no constitutional way to put it in the curriculum, according to Hogue.
“Substantial consensus does not allow the government to get into the indoctrination game. That’s the key element of establishment clause jurisprudence,” Hogue says. Hogue even takes issue with classes such as the philosophy course in California. There’s no way to avoid proselytizing, he says. “Families have every right to indoctrinate their own children as they see fit. Nobody has the right to indoctrinate other people’s children in a public school setting,” Hogue says. “The obligation of the government is neutrality.”
Establishment Clause Cited
The December ruling by Judge Jones in Kitzmiller found that teaching intelligent design in the Dover public schools amounted to an unconstitutional endorsement of religious views.
“We find that the secular purposes claimed by the board amount to a pretext for the board’s real purpose, which was to promote religion in the public school classroom, in violation of the establishment clause,” Jones wrote in a 139-page opinion.
The court also criticized the school board members for obscuring their religious motivations in encouraging the teaching of intelligent design, which the judge described as creationism by another name.
“There’s a tremendous effort to hide what’s really going on here,” says Eric Rothschild of Philadelphia, one of the lead attorneys representing the parents who sued the school district. “There is no genuine debate in the scientific community about evolution versus intelligent design.”
“Scientists are debating the theory of evolution to the same extent that lawyers are debating Marbury v. Madison –the lunatic fringe only,” says Rothschild, who worked on the case with Stephen G. Harvey, Pennsylvania ACLU lawyer Witold Walczak and Richard Katskee, a lawyer for the nonprofit Americans United for Separation of Church and State.
The academic freedom argument is another red herring from those who want to include a biblical view in public school classrooms, Harvey of Philadelphia says.
“The curriculum for a public school is set by the school board. Individual teachers do not have the right to change the curriculum,” he says, “especially when the change is based on their own religious views.”
Adds Rothschild: “If anybody says evolution is anti-God, we’ll take that case, too.” But Thompson and others insist that intelligent design has a scientific basis. The Discovery Institute focuses much of its research funding on investigating that, according to Luskin.
Evolution and intelligent design will eventually be taught side by side, Luskin says. But for now he prefers to see schools merely teaching students that Darwin’s version of evolution is incomplete and may not hold all the answers to the origins of life. “We think it should be debated by scientists and grow from there,” he says.
