Evolution on Trial- A Legal History of the Battle Over Science Class, Part Two- Censorship Reigns Victorious

In part one of this article we examined the Scopes Monkey Trial, which laid the groundwork for declaring science class an official battleground when it comes to what our children are taught regarding the origin of life. We witnessed Darrow’s brilliant strategy that succeeded in setting the precedent for erroneously framing this unfortunate battle as religion vs science. The court cases that followed have had two results: The first, is that the theory of evolution has been legally afforded a “protection” against any rival scientific theory in the classroom. Second, religious individuals (specifically Christians) have been effectively excluded from objecting to any school curricula that promotes the indoctrination of our children regarding the teaching of evolution as scientific fact.  Let’s take a look at this victory of censorship, case by case.

Epperson vs Arkansas

In Part I of this article, I mentioned that although the Scopes Trial set a damning precedent for all trials to come, the social backlash was not immediate. Quite the opposite, the trial had resulted in somewhat of an anti-evolution movement that continued throughout the following decades. During this time, Arkansas and Mississippi were successful in passing legislation prohibiting the teaching of evolution in the classroom.

For this reason, until 1965, science textbooks in Little Rock, Arkansas didn’t contain a section on evolution. However, the school administrators adopted a new textbook for the 65′-66′ school year that did cover the theory of evolution. In response, an Arkansas science teacher, Susan Epperson, sought a declaration to void the Arkansas statute so she wouldn’t be fired for teaching from the textbook.

Susan Epperson pictured above

In October of 1968 the case was finally argued before the Supreme Court. Court analysis concluded that the statute sought to prevent public school teachers from presenting evolution because it was contrary to the belief of a particular religious group. Based on that finding, in November of 1968, the court held that the law was unconstitutional because the government “must be neutral between religions and between religion and non-religion. In addition, the government should not “aid, foster, or promote one religion or religious theory against another.”

Unfortunately, subsequent court decisions have failed to follow the precedent set by this case. The imperative here is that the government must maintain religious neutrality. Otherwise, they are infringing on a person’s constitutional rights as set forth in the 1st and 14th Amendments.

From here on out, the only thing we will witness is the miscarriage of justice…

Edwards vs Aguillard

In 1981, Louisiana enacted the Balanced Treatment for Creation -Science and Evolution-Science in Public School Institution Act. This act didn’t require that either be taught, but if one theory was presented, then the other must be as well. Sounds fair. Proponents of the act pointed out that it had a secular purpose, meaning creation science is a science- not the promoting of a religious belief.

Don Aguillard was a high school advanced biology teacher in Louisiana who felt that having to teach creation science was unconstitutional. So, he sued Edwin Edwards, who was the governor of Louisiana at that time.

In December of 1986, the case was argued in front of the Supreme Court. By this time, the court had adopted the “Lemon Test” (from Lemon vs Kurtzman 1971) which details a three pronged approach to detailing legislation regarding religion.

The three prongs of the Lemon Test are as follows:

  1. The statute must have a secular legislative purpose. (The Purpose Prong)
  2. The principal or primary effect of the statute must not advance nor inhibit religion. (The Effect Prong)
  3. The statute must not result in an “excessive government entanglement” with religion. (The Entanglement Prong)With this in mind, marvel at the decision of the Supreme Court:

    The court found that the act did not grant teachers greater flexibility. It further found that the act was discriminatory by requiring the development of curricular guidelines and research for creation science to the exclusion of evolution. The court held that the state legislature had a preeminent religious purpose in enacting the statute and that they were attempting to advance the religious viewpoint that a supernatural being created humankind. The Supreme Court struck down the act in June of 1987.

    An important point to note: The district court had argued that the teaching of creation science necessarily entails the teaching of a religious tenet, the existence of a Divine Creator. I suppose this is somehow logically opposed to the fact that evolution science necessarily entails the teaching of an atheist tenet, the non-existence of a Divine Creator.

    If you disagree with this Supreme Court decision, you are in good company. Chief Justice William Rehnquist and the late Justice Antonin Scalia both dissented. They accepted the act’s stated purpose of “protecting academic freedom” as a sincere and legitimate purpose. Furthermore, these Justices construed the term “academic freedom” to refer to “students’ freedom from indoctrination,” in this case their freedom “to decide for themselves how life began, based on fair and balanced presentation of scientific evidence.”

Pictured above the 1986 Rehnquist Supreme Court. Members: Chief Justice William Rehnquist, William Brennan, Byron White, Thurgood Marshall, Harry Blackmun, Lewis Powell, John Paul Stevens, Sandra Day O’Connor, and Antonin Scalia.

From bad to worse…

Freiler vs Tangipahoa

In April of 1994, the school board of Tangipahoa, Louisiana adopted a policy mandating that a disclaimer was to be presented before any discussion of evolutionary biology. The disclaimer stated:

Whenever, in classes of elementary or high school, the scientific theory of evolution is to be presented, whether from textbook, workbook, pamphlet, other written material, or oral presentation the following statement shall be quoted immediately before the unit of study begins as a disclaimer from endorsement of such theory.

“It is hereby recognized by the Tangipahoa Parish Board of Education, that the lesson to be presented, regarding the origin of life and matter, is known as the Scientific Theory of Evolution and should be presented to inform students of the scientific concept and not intended to influence or dissuade the Biblical version of Creation or any other concept.

It is further recognized by the Board of Education that it is the basic right and privilege of each student to form his/her own opinion or maintain beliefs taught by parents on this very important matter of the origin of life and matter. Students are urged to exercise critical thinking and gather all information possible and closely examine each alternative toward forming an opinion.”

Some parents sued the school board and won their district court case in 1997. The school board appealed, but the US Court of Appeals, Fifth Circuit, upheld the decision of the district court in 2000. Later that year, the school board appealed to the Supreme Court, but the Supreme Court refused to hear the case. This time their were 3 dissenting votes from the Supreme Court: Antonin Scalia, William Rehnquist, and Clarence Thomas.

From worse to even worse…

Kidzmiller vs Dover

In October of 2004, a school board in Dover, Pennsylvania passed a resolution requiring the reading of the following statement at the beginning of each 9th grade biology class:

“The Pennsylvania Academic Standards require students to learn about Darwin’s theory of evolution and eventually take a standardized test of which evolution is a part. Because Darwin’s theory is a theory, it continues to be tested as new evidence is discovered. The theory is not a fact. Gaps in the theory exist for which there is no evidence. A theory is defined as a well-tested explanation that unites a broad range of observations. Intelligent design is an explanation of the origin of life that differs from Darwin’s view. The reference book. “Of Pandas and People,” is available in the library along with other resources for students who might be interested in gaining an understanding of what intelligent design actually involves. With respect to any theory, students are encouraged to keep an open mind. The school leaves the discussion of the origins of life to individual students and their families. As a standards-driven district, class instruction focuses upon preparing students to achieve proficiency on standards based assessments.”

Eight families in Dover somehow took issue with this, and backed by the ACLU, filed a lawsuit in federal court challenging the validity of the statement.

Notice that Dover school board’s statement doesn’t even use the words “creation science.” Instead they reference “intelligent design”. If you don’t follow science, you may not be aware that Intelligent Design is actually a movement that is wholly separate from creation science. Primarily ID differs from creationism in that, while creation science is the examination of scientific evidence through a “biblical lens,” ID is agnostic regarding their source of design and has no basis in the Bible or any other sacred text.

You might think this would be an acceptable compromise in the eyes of the court, but you would be mistaken.

The prosecution claimed that ID is indistinguishable from creation science and therefore unconstitutional. In December of 2005, US district court Judge John E. Jones agreed and rule that ID is a religion and ordered the school board to remove the statement. He went further by providing special protection for the theory of evolution stating that the school board could not require teachers to denigrate the theory.

In case you’re keeping score: The courts up to this point have ruled that schools can’t teach both creation science and evolution; they can’t verbally point out that evolution is not a fact, it’s a theory; they can’t mention any other theories regarding the origin of life; as a matter of fact, evolution is now legally beyond all criticism.

The ACLU has gone so far as to attack the Discovery Institute, which is a proponent of ID. The illustrious ACLU accuses the Discovery Institute of using ID as a strategy to “promote their religious beliefs by denigrating science and promoting supernatural intelligent design as a competing theory.” So, the ACLU does not even want evolution to have to deal with any competing theories. Doesn’t it beg the question, that if evolutionary theory cannot hold up to competing theories, shouldn’t it be allowed to collapse under its own unscientific weight? That’s what true science fosters- the discovery of truth- not the propping up of a failed theory.

The descent continues…

Selman vs Cobb County

In March of 2002, the Cobb County school district passed a policy requiring all biology textbooks bear a sticker saying:

“This textbook contains material on evolution. Evolution is a theory, not a fact, regarding the origin of living things. This material should be approached with an open mind, studied carefully, and critically considered.”

Image via NBC News Atlanta

The school board also adopted policy changes emphasizing its aim to “foster critical thinking among the students, to allow academic freedom consistent with legal requirements, to promote tolerance and acceptance of diversity of opinion, and to ensure a posture of neutrality to religion.” The policy further explained that it was not its intention to restrict the teaching of evolution, nor to promote creationism.

This rubbed New York transplant, and Cobb County resident, Jeffrey Selman, the wrong way. He read about the stickers in an Atlanta alternative paper called Creative Loafing. He says that he initially contacted the school board about his concerns, but felt ignored. Selman then contacted the ACLU and filed a lawsuit challenging the disclaimer.

The district court held that the disclosure was adopted for the secular purpose of accommodating religious objections, but it had the unconstitutional effect of endorsing religion. The school district appealed to the US Court of Appeals.

In June of 2005, Americans United and the Anti-Defamation League got involved arguing that the district court had correctly found that the disclaimer had an unconstitutional effect, but that it had erred when it held that placing religiously motivated objectors is a secular purpose.

In 2006, the Court of Appeals vacated the district court’s ruling and sought to review the district court’s trial record. It found those records to be insufficient, and when Americans United requested to hold a new trial in which they would represent Selman as lead council, the court agreed.

However, the case never went to trial. Both parties settled in December of 2006. Under the resulting consent order the school district is prohibited from:

  1. Reattaching to science textbooks the evolution disclaimer stickers or any other statements regarding evolution, Charles Darwin, creation science, intelligent design, or any other religious view concerning the origin of life or the origin of human beings.
  2. Making any disclaimers regarding evolution orally, in writing, or by any other means.
  3. Exercising or redacting materials on evolution in students’ science textbooks.
  4. Violating state educational standards regarding the teaching of evolution.

Further: Should the school district violate any of these provisions, the case will be reopened and the school district may be liable for all attorney’s fees accrued since the start of the case.

As a side note, after the trial, Jeffrey Selman became president of Americans United for Separation of Church and State for Atlanta. As of the date of this article posting, he still holds that position. In 2015, Selman self-published an autobiographical account of the case, titled God Sent Me. I know what you’re thinking, but Selman states that he “did not write the book for money.”

For you scorekeepers, the courts have now added to their rulings that schools may not add written disclaimers on textbooks or encourage students to “critically consider” what their textbooks say regarding evolution.

This ruling proves to be particularly troubling and Casey Luskin, writing for Discovery Institute in this article, says it best:

“Under Judge Cooper’s ruling, a law is unconstitutional if some citizens ‘perceive the [government] to be aligning itself with proponents of religious theories of origin’—even if the government did not adopt those religious policies. It’s all about perceptions and feelings. According to this court, if the government feels that ‘Christian fundamentalists and creationists’ have a good idea, and they adopt it, then that policy is unconstitutional even if it had a valid secular purpose, simply because it was supported by ‘Christian fundamentalists and creationists’ in the community. An otherwise constitutional policy is made unconstitutional simply because of the religious beliefs of the people in the community who support it: [Following quote from Judge Cooper]

“There is no evidence in this case that the School Board included the statement in the Sticker that ‘evolution is a theory, not a fact’ to promote or advance religion. Indeed, the testimony of the School Board members and the documents in the record all indicate that the School Board relied on counsel to draft language for the sticker that would pass constitutional muster. Thus, the presence of this language does not change the Court’s opinion that the Sticker survives the purpose prong of the Lemon analysis.

Still, the informed, reasonable [observer] would perceive the School Board to be aligning itself with proponents of religious theories of origin.”

Luskin continues, “This ruling means that if religious citizens advocate for a particular policy position, even if that position could have legitimate secular benefits and could be passed under legitimate secular motives (as was this disclaimer), the government has acted unconstitutionally if it adopts that position simply because that policy was supported by many citizens who are religious. Such a legal rule diminishes the political rights of religious citizens by inhibiting their ability to advocate for policy positions in American politics.”

Luskin notes further that Judge Cooper’s ruling is unconstitutional because she has failed to treat religion in a neutral fashion. “Indeed, Jeffrey Selman, the plaintiff himself, participated in a ‘Rally for Reason’ sponsored by the Atheist Law Center. Much activist opposition to Cobb County’s disclaimer by the atheist community was organized through a group called ‘Internet Infidels.’ Internet Infidels is ‘a non-profit educational organization dedicated to defending and promoting a naturalistic worldview on the Internet’ where ‘naturalism entails the nonexistence of all supernatural beings, including the theistic God.’”

It is true that creation science and intelligent design hold implications for fields outside of science such as theology, ethics, and philosophy. But so does evolution. John G. West writes in his article for Discovery Institute, “Leading Darwinists routinely draw out theological and cultural implications from the theory of evolution.” Here are a few of West’s examples:

  1. Richard Dawkins claims that Darwin “made it possible to be an intellectually fulfilled atheist.”
  2. E.O. Wilson employs Darwinian biology to deconstruct religion and the arts.
  3. Eugenie Scott, executive director of NCSE (National Center for Science Education), acknowledges that the purpose of the group’s “clergy outreach program” is to encourage members of the practicing clergy to address the issue of evolution in Sunday schools and adult Bible classes” and to get church members to talk about “the theological implications of evolution.”

It is abundantly clear that those who are insistent upon the theory of evolution being taught in public schools exclusively, barring any suggestion by the school system of critical thought on the part of the student regarding evolution theory’s shortcomings and also barring the mention of the theories put forth by creation science or intelligent design, do so as a means of indoctrination and to promote the anti-religious belief that life did not originate with a Creator.

Therefore, these court decisions are unconstitutional by the very definition of their own Lemon Test. They have violated the 1st prong, the Purpose Prong, by failing to recognize the atheistic “anti-religious” purpose of creating pro-evolution legislation as a “non-secular purpose”, when in fact the “anti-religion” of atheism is comparative in function to the religious function that they detest. This has been illustrated in numerous trials by the failure of the courts to remain neutral between the religious and so-called “non-religious”. They have violated the 2nd prong, the Effect Prong, by advancing the atheist anti-religion of evolutionary theory centering around the absence of a Creator, and inhibiting religion that recognizes a Creator. The 3rd prong, the Entanglement Prong, has been grievously violated as the court has become almost inextricably entangled in a battle between atheism and religion. As Justices Scalia, Rehnquist, and Thomas recognized, our children are the ones who suffer. The Supreme Court has failed to afford them “freedom from indoctrination” and it has failed to afford them their right “to decide for themselves how life began, based on fair and balanced presentation of scientific evidence.” Censorship reigns victorious.


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