It is, then, hardly surprising that the teaching of science in high schools has become a major source of social conflict in the United States almost from the point at which evolution ceased to be a topic confined largely to specialists and was established as a central theme of modern biology. The belated synthesis of Darwin’s theories of how a process of natural selection might work and of Mendel’s observations on the inheritance of specific characteristics within species, during the first decade of the twentieth century, entered high school curriculum after World War I and almost immediately came into collision with the faith beliefs of large numbers of ordinary Americans, particularly, but not exclusively, in the South and Midwest. In contrast to Europe, the public provision of education is a highly devolved matter in the United States, with relatively little federal involvement and even states having limited central authority over local school boards. At the same time, the First Amendment erects a strong barrier to any arm of the American state acting in any way that may seem to endorse any religious belief or, indeed, belief in preference to nonbelief. This immediately creates a tension between the desire of local communities to prescribe a public school curriculum that reflects their faith beliefs and the Constitutional objection to the promotion of religion by public bodies.
The publication of high school biology textbooks, from 1919 onwards, that included coverage of evolution provoked a backlash from fundamentalist religious leaders, including campaigns for state legislation to ban the teaching of this subject. Tennessee was the first state to legislate, in 1925, but community leaders in Rhea County linked up with the ACLU to fight a test case against this law. Local science teacher John Scopes volunteered to be prosecuted. Although the evolutionists are usually thought to have won a moral victory in the ‘‘Scopes Trial’’ (Tennessee v Scopes, 1925), the defendant was convicted and fined. The State Supreme Court reversed the verdict on technical grounds but recommended that the state attorney general should not pursue the matter further. The Tennessee statute was not repealed until 1967. In the absence of a Constitutional test, similar laws were passed in Mississippi (1926) and Arkansas (1928), and publishers voluntarily omitted the topic of evolution from most 1930s high school biology textbooks. Each state and community reached its own accommodation between biblical literalism and evolutionary thought until the perceived challenge of Soviet technology in the late 1950s provoked national elites to press for the modernization of science education, overriding local objections as their counterparts in Europe had long since done.
This generated the First Amendment challenge, which Scopes had failed to accomplish, to the 1928 Arkansas statute. On the recommendation of its biology teachers, the Little Rock School Board adopted a high school textbook for the 1965–1966 session that included a chapter on evolution. One teacher, Susan Epperson, asked the courts to declare that the statute was invalid and that she would not be committing a criminal offense by teaching from the prescribed text Although her claim was initially upheld, on a combination of Fourteenth and First Amendment grounds, as a violation of her rights to freedom of speech, it was overturned on appeal. The State Supreme Court held that the 1928 act was a valid direction by the state government about the actions of its employees in their official capacity. The case was further appealed to the U.S. Supreme Court, in Epperson v Arkansas (1968), which found for Epperson. There is a certain mythology about this: Mr Justice Fortas took a strong First Amendment approach, whereas his colleagues simply thought that the state law was too vague to be constitutional on Fourteenth Amendment grounds. In the longer term, however, Fortas’s analysis has prevailed.
In effect, Fortas anticipated the Lemon analysis of the First Amendment, formulated three years later, which set a three-part test for the constitutionality of statutes bearing on religious issues: they must have a secular purpose; their principal effect must neither advance nor inhibit religion; they must not foster ‘‘an excessive government entanglement with religion.’’ In looking to the ‘‘secular purpose’’ element, the Supreme Court has not confined itself to looking exclusively at evidence of legislators’ intent but also at the activities of groups lobbying in support of statutes. The Supreme Court decision in Epperson blocked the possibility of legally prohibiting the teaching of evolution in public schools. However, this remained as offensive as ever to large and influential faith communities, who sought to dilute its impact by two new strategies. One was to require classroom teachers to give ‘‘equal treatment’’ to Biblical and Darwinian accounts of the origin and development of species. Creationism was relabelled as ‘‘creation science’’ and presented as an alternative scientific account. The other was to require that students be cautioned about the status of the Darwinian account, either by having teachers read a prescribed statement or by placing stickers on biology textbooks warning that elements of the content were controversial.
The first of these was evaluated by the Supreme Court in Edwards v Aguillard (1987). With Justice Scalia dissenting, the Court held that the statute’s stated secular purpose, of protecting the rights of teachers to talk about creationism, was a sham: the legislature’s disavowal of religious purpose was undermined by the evidence of active lobbying by faith groups. However, the most important element of the decision was its declaration that creationism— or creation science—was inherently religious in its nature. It could not be subject to normal academic tests of its validity, it was historically permeated by religious entanglements, and, at its heart, it requires belief in a supreme being as creator. Any doctrine that requires a prior faith belief is inherently religious, whether or not the word ‘‘God’’ is actually spoken in the classroom and cannot be promoted in the public school curriculum.
The Supreme Court has not ruled directly on the issue of stickers or disclaimers, although three justices (Scalia, Rehnquist, and Thomas) indicated their willingness to hear the issue when an application for certiorari was refused in Freiler v Tangipahoa (1999).
The Tangipahoa Parish Board of Education in Louisiana had adopted a resolution in 1994 disavowing evolution and requiring teachers to read a disclaimer. A group of parents appealed against this to the district court, which found in their favor, a decision affirmed by the Fifth Circuit, following Lemon and, ultimately, Epperson. The sticker issue has not been definitively adjudicated, although a case arising from a sticker introduced in 2002 by the School Board in Cobb County, Georgia, was still before the federal courts in 2005. This does, however, seem likely to face the same hurdles unless a change in the balance of the Supreme Court leads to a fundamental restatement of the established interpretation of the First Amendment.
After Epperson and Edwards, it became clear that creationists would need a new strategy if they were to be able to sustain their challenge to the entrenchment of scientific materialism in public school curricula. Intelligent Design Creationism (IDC) is the result. Its promoters seem to have observed that two propositions associated with the post-Epperson developments in creation science, namely that competing views on any issue deserve equal treatment and that free speech by those who disagree with orthodoxies, should be protected and are capable of generating widespread support beyond fundamentalists because of their resonance with general American values. Provided that the explicitly religious elements of creationism could be eliminated, accounts of the origin and development of species that imply the intervention of a creator might be introduced into the high school curriculum with a sufficient measure of support from nonbelievers to render First Amendment challenges more difficult to sustain. IDC is the result.
IDC abandons the Biblical literalism of previous generations in favor of an approach first formulated by the Reverend William Paley (1743–1805), an important eighteenth century theologian and philosopher. Paley’s Natural Theology (published 1802) was the dominant intellectual statement against which Darwin’s generation reacted. Paley argued that, were we to find a watch lying on the ground, we would necessarily infer that its parts had been framed and put together for a purpose. This evidence of design would, in turn, imply the existence of a designer. In a similar way, Paley argues that the intricacy and complexity of the universe, as exemplified in structures like the human eye, implies the existence of a Design and a Designer. Although contemporaries like David Hume (1711–1776), in his discussion of miracles, attacked this line of argument, it remained influential well into the nineteenth century, and elements can still be seen in the mainstream Christian acceptance of ‘‘theistic evolution.’’ However, whereas IDC stresses the constant engagement of the Designer, theistic evolutionists like the Reverend John Polkinghorne (b.1930), a former professor of mathematical physics at Cambridge and an influential theologian, tend to think more in terms of a Cosmic Planner, who may have supplied the raw material of the universe and its basic physical laws but who now, at most, supplies an occasional nudge to the system, deep in the uncertainties of the quantum world.
IDC is the core of what its advocates describe as the ‘‘Wedge Strategy’’ devised during the 1990s by a group of writers associated with the Discovery Institute’s Center for Science and Culture in Seattle. Whereas all modern science rests broadly on the principle of naturalism—that events can only be explained by natural and hence observable causes—the Wedge movement seeks to insert a space for ‘‘supernaturalism.’’ that some, if not all, events in the world have a supernatural cause that is inaccessible to observation and objective verification. IDC, however, seeks to avoid specifying the source of that supernatural cause to evade the First Amendment proscriptions. In theory, the Designer could be an alien being from another galaxy or a time-traveling cell biologist. In practice, though, IDC advocates identify the Designer with the Christian God. Nevertheless, IDC is set out as an alternative scientific program with its own alternative school texts like Pandas and People (1989).
By redefining science in a way that leaves space for the supernatural and by suppressing the explicitly religious elements of the argument from design, IDC advocates hoped to take their approach outside the scope of Epperson and Edwards, relying on commonly held notions of ‘‘fair play’’ to mobilize support for their attempt to drive their wedge into the high school curriculum.
This strategy was tested and found wanting by the district court in Pennsylvania in the fall of 2005. On October 18, 2004, the Dover Area School Board resolved that high school students should be made aware of problems with Darwin’s theory of evolution and of the possibility for other theories ‘‘including but not limited to intelligent design.’’ The Board determined that, from January 2005, teachers would be required to read a disclaimer that asserted compliance with state policy on the science curriculum, and the standardized tests through which this would be assessed, but drew attention to the alternative offered by IDC and referred students to the Pandas and People text. A group of parents, teachers, and former School Board members brought an action, Kitzmiller v Dover Area School District, seeking to have this declared unconstitutional. After a six-week trial, the judge, known as something of a conservative, handed down a lengthy and stinging judgment declaring the Board’s actions to be in breach of the First Amendment and severely censuring the conduct of a number of Board members, officers, and their advisers. The judge closely follows precedent to determine whether the Board’s actions would constitute a message of official ‘‘endorsement or disapproval’’ of religion to an objective student or adult in the school district.
In summary, the judge holds that an objective observer would know that IDC and references to ‘‘gaps’’ or ‘‘problems’’ in evolutionary theory are creationist strategies for weakening education about evolution. He outlined a wealth of statements by leading IDC advocates asserting the identification of the Designer with the Christian God. The supernatural elements of IDC make it inherently religious. The judge goes on to discuss whether students would see the disclaimer as an official endorsement of religion. He holds that the phrasing, effectively saying ‘‘the State of Pennsylvania requires us to teach you evolution but we don’t really believe it and think you should study this inherently religious account instead,’’ constitute a message of religious endorsement comparable to that struck down in Freiler. Turning to the understanding of the Board’s action in the wider community, he notes the evidence of newsletters and public meetings that present IDC in religious terms and from correspondence and articles in the local press that show it was perceived as such by local residents. Again, he holds that there has been a clear endorsement of religion by a public body. This leads to an unequivocal finding against the School Board on First Amendment grounds, coupled with strong criticism of the conduct of members in office and of their behavior, including frequent evasion and outright lying, in court.
However, the judge also discusses a number of the other issues raised in the case, in the hope, he declares, of avoiding ‘‘the obvious waste of judicial and other resources’’ that would be incurred in further trials. In particular, he directly evaluates the question of whether IDC is science, as distinct from his evaluation of whether it is an expression of religious belief. This has a wider importance, because an alternative IDC strategy has been to seek to have school boards or other public bodies redefine what counts as science to encompass IDC. The State Board of Education in Kansas, for example, has been in turmoil over this issue since 1999. In Kitzmiller, the judge finds that IDC fails the test on three grounds: that it invokes and permits supernatural causation; that its argument of ‘‘irreducible complexity,’’ that some biological phenomena are too complex to have arisen by the chance processes of evolution, is flawed and illogical; and that its negative attacks on evolution have been successfully refuted. Its only textbook contains outdated concepts and badly flawed science. IDC is, in the end, a theological position, which has no place in a science curriculum.
Kitzmiller is, of course, at best a limited precedent in one federal district. The judgment is unlikely to be reviewed by higher courts, since control of the Dover School Board changed in November 2005 elections, just as the trial was ending. However, it is hard to see how the judge’s analysis can be faulted or how First Amendment obstacles to IDC can be overcome, unless there is a major reassessment of Lemon by the Supreme Court. Evolution’s place in lawful high school science curricula would seem to be secure from challenge unless IDC supporters can produce convincing empirical evidence to support their claims to have presented an alternative.
One last argument, which was not discussed in Kitzmiller, may be worth mentioning, namely, whether a requirement to teach evolution in high schools violates teachers’ free speech rights under the First Amendment. There are a number of cases on this that make it clear that the rights of teachers are abridged during the school day, whether they are actually teaching or not. In the course of their employment, teachers’ speech is official speech on behalf of their employers and subject to whatever restrictions apply to those employers. As public employees, then, teachers cannot lawfully speak in ways that violate the Lemon test by appearing to endorse or promote religious belief or nonbelief. This prohibition can extend into their private time if there is a danger that they might be identified as representatives of that public body. For example, a teacher may not organize, out of school hours, a religious society meeting in premises rented from their own school but can do this on the premises of another school where there is no risk of confusion about their status as a private individual. A requirement to teach evolution as part of a standard science curriculum is a lawful exercise of the employer’s rights, and termination of a contract for teaching any version of creationism in science curriculum time is a lawful exercise of the employer’s responsibility not to breach their First Amendment obligations. This does not, of course, prevent the examination of IDC within a religious studies curriculum, any more than it prevents examining the Book of Genesis as part of a comparative study of the creation myths told by various faith communities.
Given the financial resources available to the conservative Christian interests that have sustained creationism in various guises for almost a century, and the evidence of the scale of creationist belief in the contemporary United States, it is unlikely that the legal setback in Dover will end the confrontation between some forms of religious belief and the scientific community in the American courts. However, it does seem that a more ingenious intellectual strategy than IDC will need to be devised to overcome the established interpretation of the First Amendment, unless this is revised by the Supreme Court.
References and Further Reading
Cases and Statutes Cited
See also Edwards v. Aguillard, 482 U.S. 578 (1987); Epperson v. Arkansas, 393 U.S. 97 (1968); Fortas, Abe; Fourteenth Amendment; Lemon Test; Rehnquist, William H.; Scalia, Antonin; Thomas, Clarence