Legal Analysis of the Alabama House Substitute for SB 336

David DeWolf, Seth Cooper, John G. West,
Discovery Institute
May 14, 2004
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Legal Analysis of the Alabama House Substitute for SB 336
David DeWolf, J.D., Professor of Law, Gonzaga University Law School
Seth Cooper, J.D., Program Officer, Public Policy and Law, Discovery Institute
John G. West, Ph.D., Senior Fellow, Discovery Institute

May 14, 2004

Click here to read the text of SB366 Alabama Academic Freedom Act

The Alabama House Education Committee recently voted to adopt a substitute version of SB 336, the proposed Alabama “Academic Freedom Act.” The substitute version of SB 336 has a more limited focus than the original version of the bill and clarifies several legal issues. In this analysis of the substitute version of SB 336, we explain (1) the secular purpose that is advanced by protecting academic freedom when the topic of evolution is discussed in Alabama’s public educational institutions, and (2) why the provisions of the substitute version satisfy the most exacting standards for constitutionality.

1. There is a Secular Need to Protect Scientific Inquiry Regarding Evolution

Proponents of modern evolutionary theory sometimes allege that it is illegal to teach about any debates regarding evolutionary theory because all such debates are “religious” or tantamount to “creationism.” This claim is plainly false. A growing number of scientists have begun to question key aspects of the theories of chemical and biological evolution on scientific grounds. More than 300 scientists, including professors at such institutions as Harvard, Princeton, and the University of Georgia, recently published a statement expressing their skepticism of modern evolutionary theory’s “claims for the ability of random mutation and natural selection to account for the complexity of life.” A book by molecular biologist Michael Denton has even described Darwinian evolution as “a theory in crisis.” Such scientific debates over key aspects of Darwin’s theory are entirely appropriate to include in public school biology curricula, as the Ohio State Board of Education recently determined by adopting a “Critical Analysis of Evolution” model lesson plan that was drafted with input from a variety of scientists, including biologists at two state universities.

Unfortunately, despite the existence of legitimate scientific debates involving Darwinian theory, the right of professors and teachers to teach about these debates is often in question. As a result, there have been repeated cases around the country where professors, teachers and students have been intimidated, ridiculed or penalized for discussing scientific criticisms of the theories of chemical and biological evolution. For example:

  • In 1998 Minnesota high school teacher Rodney LeVake was removed from teaching biology after expressing skepticism about Darwin’s theory. LeVake, who holds a master’s degree in biology, agreed to teach evolution as required in the district’s curriculum, but said he wanted to “accompany that treatment of evolution with an honest look at the difficulties and inconsistencies of the theory.”
  • Rogert DeHart, a public high school biology teacher in Washington State, was denied the right to have his students read articles from mainstream science publications that made scientific criticisms of certain pieces of evidence typically offered to support Darwinian theory. One of the forbidden articles was written by noted evolutionist Stephen Jay Gould. Although DeHart complied with this ban, he was later removed from teaching biology.
  • In Mississippi, chemistry professor Nancy Bryson was asked by Mississippi University for Women to resign as head of the Division of Science and Mathematics after she gave a lecture to honors students called “Critical Thinking on Evolution.”

There have been numerous similar cases of such persecution throughout the nation. In the Scopes trial of the 1920s, public school teacher John T. Scopes was wrongly penalized for teaching the scientific evidence in favor of the theory of evolution. The right to teach that evidence is now safeguarded. Today the teachers whose academic freedom is in jeopardy are those who wish to discuss scientific criticisms of evolutionary theory. Given the curent situation, it is completely legitimate (and constitutional) for a state legislature to seek to protect through a statute the rights of teachers and professors to teach about the full range of scientific views regarding evolutionary theory.

2. The Constitutionality of the Substitute Bill

The substitute version SB 336 incorporates several changes that ensure the law is compliant with existing constitutional precedents.

First, the substitute bill specifically protects a right to teach “scientific critiques of prevailing scientific theories” that was identified by the United States Supreme Court in the case of Edwards v. Aguillard (1987). This substitute bill language follows the approach explicitly approved by the Court in Edwards. It is significant that groups with widely divergent views on the Establishment Clause issued a “Joint Statement of Current Law” in 1995 that made clear it is constitutional for teachers to present “genuinely scientific critiques of... any explanation of life on earth.” Again, the statement emphasized that “any genuinely scientific evidence for or against any explanation of life may be taught.” Organizations endorsing this statement included the American Civil Liberties Union and Americans United for Separation of Church and State. The substitute version of SB 336 merely seeks to ensure that Alabama teachers and professors have the right to present such constitutionally permissible information regarding chemical and biological evolution.

Second, the substitute bill protects the rights of professors, teachers and students to discuss “the full range of scientific views” concerning chemical and biological evolution. While the more immediate problem addressed by the bill is the persecution of those who raise scientific criticisms of chemical and biological evolution, this wording in the bill clearly extends equal protection to professors, teachers and students to also discuss the scientific merits of chemical and biological evolution. Furthermore, the rights of teachers to discuss the scientific merits of chemical and biological evolution is protected by the U.S. Supreme Court’s decision in Epperson v. Arkansas (1968), which struck down Arkansas’s anti-evolution statute that prohibited the teaching of evolution. The revised wording addresses an equal protection objection to the earlier version of the bill, which appeared to protect only the right to criticize evolutionary theory. It should be noted that “the full range of scientific views” phrasing in the substitute version follows report language adopted by a bipartisan majority of the United States Congress in 2001 in the No Child Left Behind Act Conference Report. In that report language, Congress advised that “where topics are taught that may generate controversy (such as biological evolution), the curriculum should help students to understand the full range of scientific views that exist, why such topics may generate controversy, and how scientific discoveries can profoundly affect society.”

Third, the bill explicitly states that it does not have any effect upon state science standards or the curricular content of schools or public universities.

Finally, the bill avoids all of the problems with the legislation that the Supreme Court struck down in Edwards: It does not require, suggest, or protect the presentation of religious critiques of evolutionary theory, often referred to as “creationism.” While it is no ground to censor scientific theories because they have implications for or against particular religious views, the bill protects the presentation of scientific theories regardless of their compatibility with religion or non-religion. Addressing another weakness in the legislation promoted in Edwards, the substitute bill does not condition the teaching of evolution upon devoting “equal time” to presentation of competing views. In short, the substitute bill is fully compliant with the Court’s description of permissible legislation in Edwards.

1) “A Scientific Dissent from Darwinism,” March 2004, available on request from Discovery Institute,
2) Michael Denton, Evolution: A Theory in Crisis (Adler and Adler, 2002).
3) Ohio’s “Critical Analysis of Evolution” model lesson plan is available from the Ohio State Department of Education website,
4) Quoted in Rodney LeVake vs. Independent School District #656, State of Minnesota Court of Appeals, C8-00-1613 (May 8, 2001); available online at Additional information on the LeVake case can be found in James Kilpatrick, “Case of Scientific Heresy is Doomed,” The Augusta Chronicle (December 23, 2001), p. A-4. The Minnesota Court of Appeals found that the school district’s interest in maintaining its curriculum overrode LeVake’s first-amendment interest in teaching material critical of Darwinian evolution.
5) For more information about the situation faced by Roger DeHart, see the documentary Icons of Evolution (ColdWater Media, 2002).
6) “Religion in the Public Schools: A Joint Statement of Current Law,” April 1995,