U.S. Legal Controversy Over Teaching Evolution

By Edward J. Larson

Professor Edward J. Larson is a professor of law and history at Pepperdine University in California. He was in Australia recently for an international conference on law and religion hosted by Melbourne Law School, and to teach American Constitutional Law in the JD program. 

Professor Larson, who was awarded the 1998 Pulitzer Prize in History for his book Summer for the Gods: The Scopes Trial and America's Continuing Debate Over Science and Religion, spoke about religious autonomy and its limits. Here is an extract of his presentation.  

While surveys find virtually all American scientists accept the theory of evolution, many American students or their parents come from Christian communities that view Darwinism as atheistic because its account of human origins contradicts the biblical narrative of creation and the mechanism of natural selection undermines the idea of a loving creator.

For nearly a century, such Christians have been seeking legal limits on teaching evolution in public schools while secular educators have been defending what they view as proper science education.

Although this matter has been  most heavily litigated in the United States, it is by no means a strictly American issue. Creationism has gone worldwide. It is illegal to teach evolution in most Islamic countries, for example, and because of widespread objections it is rarely taught in the public schools of sub-Saharan Africa, South America, or Polynesia. Creationist schools now receive government funding in Great Britain, the Netherlands and elsewhere in Western Europe, and the ministries of education in several Eastern European nations, including Poland, Serbia, and Romania have promoted creationist instruction.

Active creationist organizations exist around the globe, including in such diverse countries as Canada, South Korea, Turkey, Israel and New Zealand. America's leading creationist spokesperson, Answers in Genesis founder Ken Ham, is not even an American but instead a transplant from Australia, where he led the Brisbane-based Creation Science Foundation. The legal issues spawned by the U.S. anti-evolution movement are sure to spread.

One way to explore this topic is to examine the legal rights sought by American creationists. They typically fall into one of four basic categories:

  1. not teaching evolution;
  2. balancing it with some form of creationist instruction;
  3. teaching  it in some fashion as "just a theory";
  4. allowing objecting students to opt out.

The idea of removing Darwinism from the classroom came first and is as old as the controversy itself. In 1925, Tennessee became the first of many American states and school districts to outlaw teaching the theory of human evolution.

Proponents of such restrictions claimed that they serve to protect the religious rights of religious students. Public schools should stay neutral on the religious (or anti-religious) issue of human origins by teaching nothing on the topic.

The Tennessee anti-evolution statute struck a chord that resonated widely. The nationwide attention garnered by its passage soon focused on Dayton when a local science teacher named John Scopes accepted the invitation of the ACLU to challenge it in court. The media promptly proclaimed it "the trial of the century" as this young teacher (backed by the nation's scientific, educational, and cultural establishment) stood against the forces of fundamentalist religious lawmaking. Although Scopes defense team won points publicising the dangers of religious lawmaking, the prosecution won the case.

Consequently, a 40-year standoff resulted in which a hodgepodge of state and local limits on teaching evolution led most high-school biology textbooks to ignore the subject of organic origins. In time, however, changing concepts of religious liberty undermined this accommodation.

The change began in 1947, when the U.S. Supreme Court grafted the First Amendment bar against Congress supporting religion to the liberties protected from state action by the Fourteenth Amendment. Suddenly the Establishment Clause took on new life as a means to prevent state and local public schools from promoting religion. The first of these cases did not address restrictions on teaching evolution but they surely implicated them. In successive decisions, the Supreme Court struck down classroom religious instruction, school-sponsored prayers, mandatory bible reading and, in the 1968 decision Epperson v. Arkansas, anti-evolution laws. These old laws simply banned teaching evolution – they did not authorize teaching creationism. After Epperson, many American Christians began lobbying for adding creationism to the public- school  science  curriculum.

Responding to these demands, within a dozen years of Epperson, three states and scores of local school districts mandated "balanced treatment" for so-called creation science in public-school biology courses. Creation science consisted of a body of physical evidence and interpretation compiled by religious creationists to support the biblical account of creation. These mandates did not last long. Creation science was nothing but religion dressed up as science, the Supreme Court ruled in 1987, and therefore was barred by the Establishment Clause from public-school classrooms.

Conservative Christians promptly began exploring alternative legal approaches to protect their perceived rights. If public school teachers cannot teach creation science and school districts can bar the teaching of evolution, then perhaps evidence of divine design in nature or scientific dissent from evolution theory was permissible.

Such reasoning spawned the so-called Intelligent Design (or ID) movement, which posits that nature betrays evidence of intelligent design. This effort produced results.  In 2001, a suburban Atlanta school board decreed that biology textbooks must carry a disclaimer stating that evolution was "just a theory." Two years later, a Pennsylvania school board mandated a more expansive disclaimer promoting ID. Federal district courts struck down both restrictions.

In the Georgia case, the judge observed that the disclaimer "targets only evolution …without explaining why it is the only [scientific] theory being so isolated". In light of the religious opposition to the theory of evolution, he concluded that  "an informed, reasonable observer would perceive the school board to be aligning itself with proponents of religious theories of origins". This constituted an unconstitutional endorsement of religion.

The Pennsylvania case also involved school guidelines requiring that students be told not only that evolution is just a theory but also that ID offered an alternative scientific explanation for biological origins. This led the court to consider whether public-schools can present ID claims as science.Following a six-week trial, the court ruled on these issues in the first and so-far only decision of its kind. "After a searching review of the record," the judge concluded, "we find that ID is not science". ID, the judge stressed, has not been accepted by the scientific community, generated peer-review publications, nor been subjected to testing and research.

These cases involved local science teachers opposed to school board limits on teaching evolution. The situation could differ where teachers wanted to teach ID or creation science. Don't they have rights too, creationists have argued. But under American public-school law,  teachers must teach what their supervisors say. Thus, if a teacher's school board directs a biology teacher to teach evolution, she cannot teach creationism. Further, courts have held that the rights of non-creationist students are violated if a biology teacher teaches creationism  as  science.

What if both the teacher and student want to cover creationism and the school board does not object? That has been the case with two state statutes. A 1976 Kentucky law authorizes science teachers to present the biblical creationism along with the theory of evolution. According to the statute, students "receiving such instruction, and who accept the Bible theory of creation," could receive credit for learning the biblical account. A 2008 Louisiana law directs the state board of education, at the request of local school boards, to provide teachers with materials to teach ID-inspired critiques of the theory of evolution. Neither statute has been challenged in court.

The most common means to accommodate religious students in this area is to let them opt out. A 1925 Supreme Court decision gave parents a right to send their children to parochial schools. Subsequent state court decisions have extended this right by allowing parents to have their children opt out of public-school instruction in subjects such as evolution.

The clash over the teaching of evolution illustrates limits on religious rights. Parochial schools have a right  to teach creationism. The government must accommodate religious belief by allowing students to attend parochial schools and may allow them to opt out of evolutionary instruction in public schools. But even though a majority of Americans may believe  in creationism, public schools may only give the imprimatur of science to scientific theories.

This article originally appeared in MLS News, Issue 6, October 2011.