Contents

• The Authors
• Foreword by Jon A. Buell
• 1.  Introduction
• 2.  A Brief Overview of Design Theory
• 3.  Is Design Theory Science? — Darwinism, Design, and Demarcation
• 4.  The Legal Parameters: Is It Religion?
• 5.  Edwards v. Aguillard
• 6.  Design and Scientific Creationism
• 7.  Viewpoint Discrimination
• 8.  The Authority of the Local School Board
• 9.  Conclusion
• Notes 31

Foreward

“A Smith and Wesson,” declares a folksy proverb, “beats four aces.” And indeed it does, whenever the rules can be suspended and a winning hand bested by force, as in the old frontier of the American West.

Within the jurisdiction of American civil order, constitutional rights and the rule of law regulate how we settle disputes and transact power relationships. But even here our little proverb remains profoundly true. There have always been Constitution-free zones where someone or some group has acquired a de facto domain of control. Over time, these zones acquire a social and cultural momentum, and unless one can demonstrate superior legal power, one is well-advised not to challenge such pockets of privileged authority.

One such zone of control is the biology curriculum of the public schools. Here open discussion of evidence and evaluation of competing theories has given way to an enforced orthodoxy: Darwinian evolutionary theory. According to advocates of an exclusively Darwinian curriculum, Darwinian evolutionary theory is the only scientifically legitimate approach to teaching biological origins. Thus, exposing students to evidence that challenges a Darwinian perspective is regarded as a waste of time since “no one challenges the fact of evolution.” Moreover, exposing students to competing theories is said to violate the canons of scientific method as well as constitutional norms forbidding the advancement of religion. Consequently, whenever teachers and school boards attempt to expose students to alternative perspectives about biological origins, they are threatened with legal action.

But Darwinism is not the only available scientific account of biological origins To be sure, Darwinists frequently put up a united front and claim that all serious debate about biological origins has long since ceased. But in fact there is a substantial scientific literature that critiques the adequacy of the Darwinian explanation for the complexity and “apparent design” of biological organisms. Thus the debate — the scientific debate — over Darwinian evolution remains very much alive.

Some scientists go further. No longer content merely to critique contemporary Darwinism and other similarly materialistic evolutionary theories, they have begun to advance an alternative theory known as intelligent design or design theory. Mathematician William Dembski has, for instance, published an important work on the theoretical underpinnings for detecting design. In The Design Inference: Eliminating Chance Through Small Probabilities (Cambridge University Press, 1998) he shows how design is empirically detectable and therefore properly a part of science.

Unlike contemporary neo-Darwinists, who deny evidence of real as opposed to merely apparent design, contemporary design theorists see impressive evidence of actualdesign in living systems. Biochemist Michael Behe is a case in point. His book Darwin’s Black Box (Free Press, 1996) details the design constraints that organisms face at the biochemical level.

Even so, lobbyists for an exclusively Darwinian curriculum continue to do everything in their power to prevent students from learning about this new development in scientific thinking. Thus, from California to Maine, in hamlet and metropolis alike, teachers and school boards who want to inform students about the scientific case for design in biology face the threat of lawsuit and other forms of social intimidation.

Usually the threat is delivered by an attorney from an advocacy group. The attorney notifies hapless school officials, teachers, and parents that they will face legal action if they permit discussion of evidence that challenges Darwinian orthodoxy. The attorney assures them that even if they avoid legal liability, they will certainly incur great legal expense in defending themselves. Not surprisingly, teachers and school boards so threatened nearly always give way. Educators, who are frequently under siege anyway, don’t want more hassles.

Advocates of an exclusively Darwinian curriculum sometimes resort to coercive tactics to enforce their monopoly. Thus, teachers who expose their students to criticism of Darwinian theory may face pressures such as ridicule, slowed academic advancement, or even termination.

Worse yet, the students suffer. Students skeptical of Darwinism are discouraged from voicing their objections in the public school science classroom. Those who want to explore scientific evidence more consonant with a design perspective are frequently silenced. Indeed, the influential California Science Framework (adopted January 13, 1989) advises teachers to tell such students to “discuss the question further with his or her family and clergy.” Far from encouraging open scientific inquiry, this recommendation stifles it.

Happily, the law is not on the side of an enforced Darwinian orthodoxy. In 1987, the U.S. Supreme Court ruled in Edwards v. Aguillard that “teaching a variety of scientific theories about the origins of humankind to school children might be validly done with the clear secular intent of enhancing the effectiveness of science instruction.” As this guidebook will show, teachers and school boards who choose to tell students about the evidence and arguments for intelligent design actually fulfill this Supreme Court mandate.

Nevertheless, the media frequently portray biology teachers who adopt such an open approach as religiously motivated opponents of science. Using a stereotype epitomized in the Hollywood film Inherit the Wind, a fictional portrayal of the 1925 Scopes “Monkey Trial,” many reporters treat any challenge to Darwinism as a challenge to truth and rationality.

Yet in 1997 University of Georgia professor of history of law Edward Larson (a reviewer of the present work) published a critical reassessment of the Scopes Trial and its portrayal in Inherit the Wind. In Summer for the Gods: The Scopes Trial and America’s Continuing Debate Over Science and Religion (Basic Books), Larson thoroughly deconstructed Inherit the Wind, showing just how egregiously the “Scopes Trial” stereotype misrepresents the actual Scopes Trial. Instead, the book shows that the debate over biological origins was — and is — far more complex than most Americans have been told. For his book Larson was awarded the 1998 Pulitzer Prize in history.

The aim of the present casebook is not to stop teachers from showing Inherit the Wind, or still less from teaching students about Darwin’s important and influential theory. Its aim, rather, is to restore academic freedom in the public school science classroom. Intelligent Design in Public School Science Curricula: A Legal Guidebook makes a persuasive case for allowing students to consider both the strengths and weaknesses of Darwinian theory as well as those of its chief scientific rival, design theory. To teach just one view of a controversial subject — and to teach it uncritically — constitutes indoctrination, not education. This guidebook gives local school boards, teachers, parents, and attorneys the legal tools they need to defend a more liberally-minded approach to biology education. It makes a persuasive case for allowing teachers to teach the controversy, including the central controversy over whether the design that biologists of all theoretical persuasions encounter in their study of living things is not just apparent but actual.

The Foundation for Thought and Ethics wishes to thank the following constitutional and legal scholars for their time in critiquing this casebook and for their valuable suggestions: Phillip E. Johnson, Jefferson E. Peyser Professor of Law at the University of California at Berkeley School of Law; Charles Haynes, President of Freedom Forum of the First Amendment Center; Michael J. Woodruff, Esq., Shareholder of Gammon & Grange and Adjunct Faculty at George Mason University; Michael McConnell, Professor of Law, College of Law, University of Utah; Doug Vande Griend, Chief Operating Officer, Public Justice Advocates; Francis H. Hare, Jr., Chief Legal Officer, Attorney’s Information Exchange Group; Edward J. Larson, University of Georgia Professor of History of Law, author of Trial and Error: The American Controversy over Creation and Evolution (Oxford University Press, 1985) and the Pulitzer prize-winning Summer for the Gods: The Scopes Trial and America’s Continuing Debate Over Science and Religion (Basic Books, 1997). 

Jon A. Buell,
President, The Foundation for Thought and Ethics, Richardson, Texas

[See also a law review article by the same authors: Teaching the Origins Controversy: Science, or Religion, or Speech?, from 2000 Utah L. Rev. 39 (2000)]

Teaching the Controversy

Darwinism, Design and the Public School Science Curriculum 

David K. DeWolf, Stephen C. Meyer, Mark E. DeForrest 

1. Introduction

Public schools face a dilemma when they address the subject of biological origins. From the Scopes “Monkey Trial” (1925) to the Supreme Court’s opinion in Edwards v. Aguillard (1987), the teaching of biological origins has put the public schools in the awkward role of resolving a controversy that divides scientists, educators, and the courts. While the experts debate the issues, and the media sometimes inflame the controversy, school boards, administrators, and teachers must still answer the question, What should we teach our students about how living organisms arose on earth?

For many scientists, educators, and activists, the answer is clear: Teach only Darwinian and related evolutionary theories that explain the origin and development of life as the result of undirected natural processes. Despite the vehemence with which many scientific authorities express this view, many Americans remain unconvinced and seek an alternative approach.

In the 1970s and early 1980s an approach known as scientific creationism (or creation science) was proposed. Scientific creationism sought to defend the biblical account of creation in Genesis as scientifically accurate.⁽¹⁾ Advocates of this approach persuaded the State of Louisiana to enact a statute requiring teachers to give scientific creationism “equal time” if they taught Darwinian evolution.⁽²⁾ But the effort proved unsuccessful; the United States Supreme Court decided that scientific creationism advanced a religious view in the guise of science and therefore violated the Establishment Clause of the Constitution. Many proponents of Darwinian evolution greeted the Edwards decision as officially endorsing neo-Darwinism as the undisputed orthodoxy in public school science curricula.Yet the Supreme Court’s decision was more careful than that. While finding that the Louisiana statute failed to comply with the Establishment Clause of the First Amendment, the Court encouraged “teaching a variety of scientific theories about the origins of humankind to school children . . . with the clear secular intent of enhancing the effectiveness of science instruction.”

⁽³⁾Within the last decade or so, just such an alternative theory has emerged. Darwinian theorists have long acknowledged that biological organisms “appear” to be designed. Oxford zoologist Richard Dawkins, a leading Darwinian spokesman, has admitted: “Biology is the study of complicated things that give the appearance of having been designed for a purpose.”⁽⁴⁾ Statements like this echo throughout the biological literature. Francis Crick, Nobel laureate and co-discoverer of the structure of DNA, writes, “Biologists must constantly keep in mind that what they see was not designed, but rather evolved.”⁽⁵⁾ Nevertheless, Darwinists insist that this appearance of design is illusory since the mechanism of natural selection entirely suffices to explain the observed complexity of living things.

Over the last forty years, however, even many evolutionary biologists have acknowledged fundamental problems with the Darwinian explanation for apparent design. As a result, an increasing number of scientists have begun to argue that organisms appear to be designed because they really are designed. These scientists (known as design theorists) see evidence of actual intelligent design in biological systems. They argue that, contrary to neo-Darwinian orthodoxy, nature displays abundant evidence of real, not just apparent, design. As their numbers have grown, their work has sparked a spirited scientific controversy over this central issue.

The purpose of this guidebook is to help teachers, school boards, and school administrators to negotiate the difficult scientific, legal, and pedagogical issues that arise from the origins controversy. At present many groups advise educators and administrators to ignore the controversy over design and to continue to teach a single theoretical viewpoint, ignoring scientific dissent and parental concerns about dogmatism and intellectual intolerance. In short, their approach is to suppress the controversy. We believe there is a better way. We suggest that public schools teach the controversy over biological origins in a way that faithfully reflects the debate that is actually happening among scientists.

Several benefits will accrue from a more open discussion of biological origins in the science classroom. First, this approach will do a better job of teaching the issue itself, both because it presents more accurate information about the state of scientific thinking and evidence, and because it presents the subject in a more lively and less dogmatic way. Second, this approach gives students greater appreciation for how science is actually practiced. Science necessarily involves the interpretation of data; yet scientists often disagree about how to interpret their data. By presenting this scientific controversy realistically, students will learn how to evaluate competing interpretations in light of evidence–a skill they will need as citizens, whether they choose careers in science or other fields. Third, this approach will model for students how to address differences of opinion through reasoned discussion within the context of a pluralistic society. Finally, as we will demonstrate, constitutional precedent now provides ample legal latitude for adopting just such an open approach.

This book addresses three basic questions: (1) Science: Does the discussion of evidence for intelligent design in biology belong in the science classroom? (2) Law: Does the law permit the discussion of such evidence in a public school setting, even if it may have larger philosophical implications? (3) Education: Does teaching the origins controversy in a more open way constitute good pedagogy and educational policy? 

2. A Brief Overview of Design Theory

How did the astonishing diversity and complexity of life on earth come about? Could a designing intelligence have had anything to do with the origin of biological organisms? Darwinian evolutionary biologists say No. They contend that life arose and diversified by entirely naturalistic processes like random variation and natural selection. While they admit that many of the complex features of living systems manifest the “appearance of design,” neo-Darwinists insist that the mechanism of natural selection entirely suffices to explain this appearance without invoking an actual designing intelligence.

But if evidence can count against a theory, it must be possible for evidence also to count for that same theory. Scientific refutation is a double-edged sword. For a claim to be scientifically refutable, it must have the possibility of being true. Further, because scientific theories never claim to be the final truth, new evidence can always challenge a currently dominant theory and provide new support for a previously discarded one.

Since the 1980s, a growing number of scientists have argued that precisely such evidences have come to light in the origins controversy. They argue that, contrary to neo-Darwinian orthodoxy, nature displays abundant evidence of design by an intelligent agent. These scientists, known as design theorists, advocate an alternative theory of biological origins known as design theory or the theory of intelligent design (sometimes abbreviated simply design or intelligent design). They have developed design theory in scientific and scholarly journals as well as in such books as Darwin’s Black Box, The Mystery of Life’s Origin, Mere Creation, The Design Inference, and the supplemental high school textbook Of Pandas and People.⁽⁶⁾ Design theory holds that intelligent causes rather than undirected natural causes best explain many features of living systems. During recent years design theorists have developed both a general theory for detecting design and many specific empirical arguments to support their views.

A Theory of Intelligent Design

Developments in the information sciences have recently made possible the articulation of criteria by which intelligently designed systems can be identified by the kinds of patterns they exhibit. In a recent book titled The Design Inference, published by Cambridge University Press, Baylor University probability theorist William Dembski shows how rational agents often infer or detect the prior activity of other designing minds by the character of the effects they leave behind. Archaeologists assume, for example, that rational agents produced the inscriptions on the Rosetta Stone. Insurance fraud investigators detect certain “cheating patterns” that suggest intentional manipulation of circumstances rather than “natural” disasters. Cryptographers distinguish between random signals and those that the carry encoded messages. Dembski’s work shows that recognizing the activity of intelligent agents constitutes a common and fully rational mode of inference.⁽⁷⁾

More importantly, Dembski’s work explicates the criteria by which rational agents recognize the effects of other rational agents and distinguish them from the effects of natural causes. Dembski argues that systems that manifest the joint properties of “high complexity”⁽⁸⁾ (or low probability) and “specification”⁽⁹⁾ invariably result from intelligent causes rather than from chance or physical-chemical laws. These criteria are equivalent (or isomorphic) to what information theorists call specified information or information content. Dembski’s work demonstrates that “high information content” reliably signals prior intelligent activity.

This theoretical insight agrees with common, as well as scientific, experience. For example, no one would attribute hieroglyphic inscriptions to natural forces such as wind or erosion; instead, one immediately recognizes the activity of intelligent agents. Dembski’s work shows why: Our reasoning involves a comparative evaluation process that he represents with a device he calls the explanatory filter. ⁽¹⁰⁾ The filter outlines the method that scientists (as well as ordinary people) use to decide among three types of causal explanations–chance, necessity, and design. His explanatory filter constitutes, in effect, a scientific method for detecting the effects of intelligence.

Design Theory: An Empirical Basis?

Along with their formal theory articulating the criteria by which intelligent causes can be detected in the “echo of their effects,” design theorists point to specific empirical evidence of design, both in biology and physics. They argue that biological organisms in particular display distinctive features of intelligently designed systems. Indeed, a growing number of scientists are now willing to consider alternatives to strictly naturalistic origins theories. Many now see especially striking evidence of design in biology, even if much of it is still reported by scientists and journals that presuppose a neo-Darwinian perspective.

For example, in 1998 the premier biology journal Cell featured a special issue on “Macromolecular Machines.” All cells use complex molecular machines to process information, build proteins, and move materials back and forth across their membranes. Bruce Alberts, president of the National Academy of Sciences, introduced this issue with an article titled “The Cell as a Collection of Protein Machines.” In it he stated thatWe have always underestimated cells. . . . The entire cell can be viewed as a factory that contains an elaborate network of interlocking assembly lines, each of which is composed of a set of large protein machines. . . . Why do we call the large protein assemblies that underlie cell function protein machines? Precisely because, like machines invented by humans to deal efficiently with the macroscopic world, these protein assemblies contain highly coordinated moving parts.⁽¹¹⁾Alberts notes that molecular machines strongly resemble machines designed by human engineers. Nevertheless, as an orthodox neo-Darwinist, he denies any role for actual, as opposed to apparent, design in the origin of these systems.

In recent years, however, some scientists have presented a formidable challenge to the neo-Darwinian view. For example, in Darwin’s Black Box Lehigh University biochemist Michael Behe shows that neo-Darwinists have failed to explain the origin of complex molecular machines in living systems.⁽¹²⁾ Behe examines the acid powered rotary engines that turn the whip-like flagella of certain bacteria. He shows that the intricate machinery in this molecular motor–including a rotor, a stator, O-rings, bushings, and a drive shaft–requires the coordinated interaction of some forty complex protein parts. Yet the absence of any one of these proteins would result in the complete loss of motor function.⁽¹³⁾ To assert that such an irreducibly complex engine emerged gradually in a Darwinian fashion strains credulity. Natural selection selects functionally advantageous systems. Yet motor function only ensues after all necessary parts have independently self-assembled, an astronomically improbable event.

Thus, Behe insists that Darwinian mechanisms cannot account for the origin of molecular motors and other such irreducibly complex systems that require the coordinated interaction of multiple independent protein parts. To emphasize his point, Behe has conducted a literature search of relevant technical journals.⁽¹⁴⁾ He has found a complete absence of gradualistic Darwinian explanations for the origin of the systems and motors that he discusses. Behe concludes that neo-Darwinists have not explained or, in most cases, even attempted to explain, how the appearance of design in irreducibly complex systems arose naturalistically.

Instead, he notes that we know of only one cause sufficient to produce functionally integrated, irreducibly complex systems, namely, intelligent design. Whenever we encounter irreducibly complex systems and we know how they arose, invariably a designer played a causal role. Thus, Behe concludes on the basis of our knowledge of present cause-and-effect relationships (that is, in accord with the standard uniformitarian method employed in the historical sciences), that the molecular machines and complex systems we observe in cells must have also had an intelligent cause.⁽¹⁵⁾ In brief, molecular motors appear designed because they were designed.

Behe’s book, published in 1996, has received international acclaim and critique in over eighty book reviews. Generally, critics have conceded the scientific accuracy of Behe’s claims (including his literature search showing the complete absence of neo-Darwinian explanations for many of the irreducibly complex systems that he examines). Instead, they have objected to his argument on philosophical and methodological grounds. Behe’s critics claim that to infer an intelligent cause for the origin of these complex systems, as Behe does, “goes beyond science.” (We discuss this objection in section 3 below.)

Even so, Behe is not alone in his conclusions. Consider the case of Dean Kenyon, a biologist at San Francisco State University.⁽¹⁶⁾ For nearly twenty years Professor Kenyon was a leading evolutionary theorist who specialized in origin-of-life biology. While at UC Berkeley in 1969 he wrote a book, Biochemical Predestination, that defined evolutionary thinking on the origin-of-life for over a decade.⁽¹⁷⁾ Kenyon’s theory attempted to show how complex biomolecules such as proteins and DNA might have “self-organized” via strictly chemical forces.

Yet as Kenyon reflected more on the recent discoveries in molecular biology about the complexity of living things, he began to wonder whether undirected chemistry could really produce the information-rich molecules found in even the simplest of cells. Studies of the genetic molecule DNA revealed that it functions in much the same way as computer software or alphabetic text in a book. As Richard Dawkins notes, “The machine code of the genes is uncannily computer-like.”⁽¹⁸⁾ Or, as software innovator Bill Gates notes, “DNA is like a computer program, but far, far more advanced than any software we’ve ever created.”⁽¹⁹⁾

Indeed, studies in molecular biology and the information sciences have shown that the assembly instructions inscribed along the spine of DNA display the characteristic hallmarks of intelligently encoded information–indeed, both the complexity and specificity of function that, according to Dembski’s theory, indicates intelligent design.⁽²⁰⁾ As a result of this evidence, Kenyon and many other scientists (notably Charles Thaxton, Walter Bradley, and Roger Olsen) have concluded that the specified complexity or high information content of DNA–like the information in a computer program, an ancient scroll, or in this very book–had an intelligent source.⁽²¹⁾

In recent years the fossil record has also provided new support for design. Fossil studies reveal a “biological big bang” near the beginning of the Cambrian period 530 million years ago. At that time roughly fifty separate major groups of organisms or “phyla” (including most all the basic body plans of modern animals) emerged suddenly without evident precursors. Although neo-Darwinian theory requires vast periods of time for the step-by-step development of new biological organs and body plans, fossil finds have repeatedly confirmed a pattern of explosive appearance followed by prolonged stability of living forms. Moreover, the fossil record shows a “top-down” hierarchical pattern of appearance in which major structural themes or body plans emerge before minor variations on those themes.⁽²²⁾ Not only does this pattern directly contradict the “bottom-up” pattern predicted by neo-Darwinism, but as University of San Francisco marine paleobiologist Paul Chien and several colleagues have argued,⁽²³⁾ it also strongly resembles the pattern evident in the history of human technological design, again suggesting actual (i.e., intelligent) design as the best explanation for the data.

Other scientists now see evidence of design in the information processing systems of the cell, the signal transduction circuitry of the cell, the complexity and specificity of proteins, the end-directed embryological processes of organismal development, the complexity of the human brain, and even the phenomenon known as homology (evidence previously thought to provide unequivocal support for a neo-Darwinian perspective).⁽²⁴⁾ Design theorists have begun to marshal an impressive array of empirical evidence in support of their perspective, thus challenging standard evolutionary theories for the origin and development of life across a variety of subdisciplines within biology.

Of course, the legal and educational point at issue is not whether design theorists are right in their scientific claims, but whether their work should be discussed in public school science classrooms. Assuming it is legally permissible (we consider this issue in due course), should students be told that there are well-credentialed scientists (like Behe, Kenyon, Thaxton, Chien, and Dembski) who are publishing articles and books that explicitly challenge the neo-Darwinian denial of (actual) design in biology?

The preceding discussion demonstrates that, right or wrong, the work of such scientists is clearly germane to the topic of biological origins. It is noteworthy that Darwin’s theory attempted to explain the appearance of design in biology without reference to an actual designer. Thus, it is misleading to suggest, as many do, that Darwinism and design address two fundamentally different topics, the one scientific and the other religious. Rather, both Darwinism and design represent competing answers to the very same question: How did living forms (with their appearance of design) arise and diversify on earth? At present, many biology texts routinely recapitulate Darwinian arguments against intelligent design and for the sufficiency of an undirected mechanism of evolutionary change. Clearly, good science education requires that students learn and understand the evidence and arguments for a neo-Darwinian interpretation of the history of life. But shouldn’t students also know the arguments against the sufficiency of the neo-Darwinian mechanism and for design, especially now that many well-credentialed contemporary scientists are making these arguments in print?

Of course, design theory is relatively new, and teachers may require some time to adjust their teaching, especially given that few textbooks address the subject (a notable exception being Of Pandas and People). But the relative novelty of design does not justify its exclusion, either on legal or pedagogical grounds. Indeed, quite the reverse is the case. Good teachers know that exposing students to new (and even controversial) ideas can stimulate student engagement and interest in a subject and lead to greater subject mastery. Thus, one must ask: Why wouldn’t teachers, school boards, and parents want their students exposed to competing interpretations of the scientific evidence relevant to the origins controversy? 

3. Is Design Theory Science? — Darwinism,Design, and Demarcation

Critics of design theory generally do not dispute the data (as opposed to the interpretation) that design theorists marshal in support of their view, nor do they disagree that some evidences might be interpreted to support the idea of intelligent design. They argue instead that the very idea of intelligent design is inherently unscientific–that design theory does not qualify as science according to established definitions of the term. To justify this claim, critics cite various definitional or “demarcation” criteria that purport to define science and distinguish it (or provide demarcation) from pseudo-science, metaphysics, and religion. These kinds of arguments have previously played an important role in framing the scientific and therefore legal status of creation science (or scientific creationism). Moreover, many continue to use these arguments to cast doubt on the scientific status of other alternatives to strictly naturalistic origins theories, including design theory.⁽²⁵⁾

McLean v. Arkansas and the Definition of Science

In 1982 a federal judge adopted a five-point definition of science as part of his finding that a law requiring Arkansas public schools to teach creation science alongside standard neo-Darwinian theory was unconstitutional.⁽²⁶⁾ While there are decisive differences between design theory and creation science (as detailed in section 6 below) critics of design theory often rely on the McLean criteria to establish definitional or methodological norms.

In McLean, Judge William Overton ruled that an Arkansas law requiring the teaching of creation science in public schools violated the First Amendment’s Establishment Clause.⁽²⁷⁾ The judge based his decision not only on the Establishment Clause, but on a finding that so-called creation science does not qualify as science.⁽²⁸⁾ Moreover, he reasoned that because creation science does not qualify as science, it constitutes religion. In making its determination, the court relied upon the expert testimony of the Darwinian philosopher of science Michael Ruse. In his testimony, Ruse asserted a five-point definition of science that provided allegedly normative criteria for determining whether a theory qualifies as scientific.⁽²⁹⁾ Any theory, according to Ruse, which failed to meet these five criteria could not qualify as scientific.⁽³⁰⁾

According to Ruse, for a theory to achieve scientific status it must be:

• guided by natural law,
• explanatory by natural law,
• testable against the empirical world,
• tentative, and
• falsifiable.⁽³¹⁾

Ruse further testified that scientific creationism — in part because it invoked the singular action of a creator as the cause of certain events in the history of life — could never meet these criteria. Thus, he concluded that creationism might be true, but it could never qualify as science. Judge Overton ultimately agreed, adopting Ruse’s five demarcation criteria as part of his opinion.

Although this case was in some ways superseded by the subsequent ruling of the United States Supreme Court in Edwards v. Aguillard,⁽³²⁾ (discussed below in section 5), the McLean case, and the philosophy of science that underwrites it, pose an implied challenge to the scientific status of all theories of origins (including design theory) that invoke singular, intelligent causes as opposed to strictly material causes. If design theory does not qualify as science, as Ruse testified and the court ruled concerning creation science, then at least as a pedagogical matter design theory does not belong in the science classroom.

The Demise of Demarcation Arguments

Notwithstanding the favorable reception that Michael Ruse’s arguments enjoyed in Judge Overton’s courtroom, many prominent philosophers of science including Larry Laudan and Philip Quinn,⁽³³⁾ (neither of whom supported creation science’s empirical claims), soon repudiated Ruse’s testimony on the grounds that, as Laudan argued, it “canoniz[ed] a false stereotype of what science is and how it works.”⁽³⁴⁾ These philosophers of science insisted that Ruse’s testimony egregiously misrepresented contemporary thinking in the philosophy of science about the status of the demarcation problem. Indeed, it now seems clear for several reasons that the philosophy of science provides no grounds for disqualifying non-materialistic alternatives to Darwinism as inherently “unscientific.”

First, as Laudan noted, philosophers of science have generally abandoned attempts to define science by reference to abstract demarcation criteria. Indeed, they have found it notoriously difficult to define science generally via the kind of methodological criteria that Ruse and the court promulgated in the McLean case–in part because proposed demarcation criteria have inevitably fallen prey to death by counterexample. Well-established scientific theories often lack some of the presumably necessary features of true science (e.g., falsifiability, observability, repeatability, and use of law-like explanation), while many poorly supported, disreputable or “crank” ideas often meet some of these same criteria.

Consider, for instance, the criteria of falsifiability and tentativeness, two key and related litmus tests in the 1981 trial.⁽³⁵⁾ Contrary to Ruse’s assertion that all truly scientific theories are held tentatively by their proponents and are readily falsifiable by contradictory evidence, the history of science tells a very different story. As Imre Lakatos, one of the premier historians and philosophers of science of the twentieth century, showed in the 1970s, some of the most powerful scientific theories have been constructed by those who stubbornly refused to reject their theories in the face of anomalous data.⁽³⁶⁾ For example, on the basis of his theory of universal gravitation, Isaac Newton made a number of predictions about the position of planets that did not materialize. Nevertheless, rather than rejecting the notion of universal gravitation, he refined his auxiliary assumptions(e.g., the assumption that planets are perfectly spherical and influenced only by gravitational force) and left his core theory in place. As Lakatos showed, the explanatory flexibility of Newton’s theory in the face of apparently falsifying evidence turned out to be one of its greatest strengths. Such flexibility emphatically did not compromise the scientific status of universal gravitation, as Ruse’s definition of science would imply.⁽³⁷⁾

On the other hand, the history of science is littered with the remains of failed theories that have been falsified, not by the air-tight disproof of a single anomaly, but by the judgment of the scientific community concerning the preponderance of data. Are such falsified, and therefore falsifiable, theories (e.g., the flat earth, phlogiston, geocentricism, and flood geology) more scientific than successful theories (such as Newton’s was in, say, 1750) that possess wide-ranging explanatory power?

As a result of such contradictions, most contemporary philosophers of science have come to regard the question “what distinguishes science from non-science” as both intractable and uninteresting. Instead, philosophers of science have increasingly realized that the real issue is not whether a theory is “scientific” according to some abstract definition, but whether a theory is true or warranted by the evidence. As Laudan puts it, “If we could stand up on the side of reason, we ought to drop terms like ‘pseudo-science’. . . they do only emotive work for us.”⁽³⁸⁾ Martin Eger offers this summary: “Demarcation arguments have collapsed. Philosophers of science don’t hold them anymore. They may still enjoy acceptance in the popular world, but that’s a different world.”⁽³⁹⁾

There is a second flaw in the contention that design is (in principle) unscientific: Even if we assume for the sake of argument that criteria could be found to demarcate science in general from non-science in general, the specific demarcation criteria used in the McLean case have proven utterly incapable of discriminating the scientific status of materialistic and non-materialistic origins theories.⁽⁴⁰⁾ Laudan noted, for example, that Judge Overton’s opinion made much of creation science’s inability to be tested or falsified. Yet as Laudan argues, the claim that

[To claim that] creationism is neither falsifiable or testable is to assert that creationism makes no empirical assertions whatever. That is surely false. Creationists make a wide range of testable assertions about matters of fact. Thus, as Judge Overton himself grants (apparently without seeing the implications) creationists say that the earth is of very recent origin . . . ; they argue that most of the geological features of the earth’s surface are diluvial in character . . . ; they assert the limited variability of species. They are committed to the view that since animals and man were created at the same time, the human fossil record must be paleontologically co-extensive with the record of lower animals.⁽⁴¹⁾

     Laudan notes that, although creation scientists “are committed to a large number of factual claims,” available evidence contradicts their empirical claims. As he explains,

No one has shown how to reconcile such claims with the available evidence–evidence which speaks persuasively to a long earth history, among other things. In brief, these claims are testable, they have been tested, and they have failed those tests.⁽⁴²⁾

     Yet, Laudan notes, if creationist arguments have been shown false by empirical evidence (as Ruse and other expert witnesses at the Arkansas trial no doubt believed), then creation science must be falsifiable. But if it is falsifiable, then by Ruse’s own criterion, it must qualify as scientific.

     Similar problems have afflicted Ruse’s other demarcation criteria. For example, insofar as both creationist and evolutionary theories make historical claims about past causal events, both theories offer causal explanations that do not explain by natural law. The theory of common descent, a central thesis of Darwin’s Origin of Species, does not explain by natural law. Common descent explains by postulating hypothetical historical events (and a pattern of events) which, if actual, would explain a variety of presently observed data.⁽⁴³⁾ The theory of common descent makes claims about what happened in the past–namely, that unobserved transitional organisms existed forming a genealogical bridge between presently existing life forms. Thus, on the theory of common descent, a postulated pattern of events, not a law, does the main explanatory work.

     Similarly, as Laudan notes, scientists often make existence claims about past events or present processes without knowing the natural laws on which they depend. As he notes, “Darwin took himself to have established the existence of [the mechanism of] natural selection almost a half century before geneticists were able to lay out the laws of heredity on which natural selection depended.”⁽⁴⁴⁾ Thus, Ruse’s second demarcation criterion would require, if applied consistently, classifying both creation science andclassical Darwinism (as well as much of neo-Darwinism) as unscientific. As Laudan notes,

If we took the McLean opinion seriously, we should have to say that . . . Darwin [was] unscientific; and, to take an example from our own time, it would follow that plate tectonics is unscientific because we have not yet identified the laws of physics and chemistry which account for the dynamics of crustal motion.⁽⁴⁵⁾

Finally, several analyses of the demarcation problem have suggested that naturalistic and non-naturalistic origins theories (including both Darwinism and design theory) are methodologically equivalent, both in their ability to meet various demarcation criteria and as historical theories of origins. As noted earlier, Laudan’s critique suggests that when the specific demarcation criteria promulgated in McLean are applied rigidly, they disqualify both Darwinism and various non-materialistic alternatives. Yet, as his discussion of falsification suggests, if certain criteria are applied more liberally, then both theories may qualify as scientific.

     More recent studies in the philosophy of science have confirmed and amplified Laudan’s analysis.⁽⁴⁶⁾ They suggest that philosophically neutral criteria do not exist that can define science narrowly enough to disqualify theories of creation or design without also disqualifying Darwinism and other materialistic evolutionary theories on identical grounds. Either science will be defined so narrowly as to disqualify both types of theory, or science must be defined more broadly and the initial reasons for excluding opposing theories evaporate. Thus, materialistic and non-materialistic origins theories appear to be methodologically equivalent with respect to a wide range of demarcation criteria–that is, both appear equally scientific or equally unscientific provided the same criteria are used to adjudicate their scientific status (and provided philosophically neutral criteria are used to make such assessments).

     Indeed, recent work on the historical sciences has suggested that the methodological and logical similarity between various origins theories runs quite deep. Philosopher of biology Elliott Sober has argued that both classical design arguments and the Darwinian argument for descent with modification constitute attempts to make “inferences to the best explanation.”⁽⁴⁷⁾ Other work in the philosophy of science has shown that both Darwinism and design theory attempt to answer characteristically historical questions; both may have metaphysical implications or overtones; both employ characteristically historical forms of inference, explanation, and testing; and, finally, both are subject to similar epistemological limitations.⁽⁴⁸⁾

     Accordingly, even many of those who previously wielded demarcation arguments as a way of protecting the Darwinist hegemony in public education, including the most prominent advocates of these arguments, have either abandoned or repudiated them.⁽⁴⁹⁾ For example, Eugenie Scott of the National Center for Science Education (an advocacy group for an exclusively Darwinist curriculum) no longer seeks to dismiss creation science as pseudo-science or unscientific; instead she argues that it constitutes “bad science.”⁽⁵⁰⁾ Scott no longer repudiates design theory as inherently “unscientific,” as she did as recently as 1994; she now argues that it constitutes a minority viewpoint within science.⁽⁵¹⁾ Similarly, during a talk to the American Association for the Advancement of Science (AAAS) in 1993, Michael Ruse himself repudiated his previous support for the demarcation principle by admitting that Darwinism (like creationism) “depends upon certain unprovable metaphysical assumptions.”⁽⁵²⁾ In his more recent scholarship Ruse has openly argued that evolutionary theory has often functioned as a kind of “secular religion.”⁽⁵³⁾

Summary

     The demise of demarcation arguments within the philosophy of science has made it difficult for critics to label design theory as unscientific in principle. As Laudan and others have argued, the status and merit of competing origins theories must be decided on the basis of empirical evidence and argument, not on abstract philosophical or methodological litmus tests. Yet as we have seen, design theorists in particular make extensive appeals to such empirical evidence and argument. Moreover, their arguments are now informed by an empirically based and mathematically sophisticated theory for detecting design. If design theory has both theoretical and evidential support, and if it meets abstract definitional criteria of scientific status equally well as its main theoretical rivals, then it is natural to ask, On what grounds can design theory be excluded from the public school science curriculum? 

4. The Legal Parameters: Is It Religion?

Rather than argue that design theory lacks scientific merit, many critics claim that it should be excluded because the courts have determined that it constitutes an unconstitutional intrusion of religion into the science curriculum. Thus, even though Edwards v. Aguillard encourages the teaching of other scientific theories, and even though design theory might qualify as being scientific, these critics have argued that design theory is nonetheless a religious view and must therefore be excluded from the public school science curriculum.

     For instance, in reviewing the intelligent design textbook Of Pandas and People,⁽⁵⁴⁾ Jay Wexler concedes that design theory could, for the sake of argument, be classified as science.⁽⁵⁵⁾ Nevertheless, he argues that teaching design theory would offend the Establishment Clause of the First Amendment:⁽⁵⁶⁾ “The First Amendment forbids the government from establishing religion; it does not require it to teach science.”⁽⁵⁷⁾ Consequently, if design theory is both a scientific theory and a religious doctrine, the same limitations will apply to it that apply to teaching traditional religions like Christianity, Judaism, or Buddhism.⁽⁵⁸⁾

     But design theory does not fit the dictionary definition of religion, or the specific test for religion adopted by the Ninth Circuit in its recent cases concerning the establishment of religion. Consider, for example, Peloza v. Capistrano Unified School District.⁽⁵⁹⁾ Peloza sued the Capistrano school district in which he was a teacher. He claimed that by forcing him to teach “evolutionism” and “secular humanism,” the school district had created an “establishment of religion.”⁽⁶⁰⁾ The court rejected this claim, finding that neither “evolutionism [nor] secular humanism are ‘religions’ for Establishment Clause purposes.”⁽⁶¹⁾ The court’s finding was based on both the “dictionary definition of religion and the clear weight of the case law,” thereby contradicting Peloza’s claim.⁽⁶²⁾ The court also cited the recommendation by Harvard law professor Laurence Tribe that “anything ‘arguably non-religious’ should not be considered religious in applying the Establishment Clause.”⁽⁶³⁾

     Similarly, in Alvarado v. City of San Jose⁽⁶⁴⁾ a group of citizens brought suit against the city of San Jose, alleging that the city’s installation of a sculpture of the Aztec god Quetzalcoatl violated the Establishment Clause.⁽⁶⁵⁾ The court ruled that the sculpture was not religious.⁽⁶⁶⁾ In making its ruling, the court relied on a three-part test to define religion:⁽⁶⁷⁾

First, a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters. Second, a religion is comprehensive in nature; it consists of a belief-system as opposed to an isolated teaching. Third, a religion often can be recognized by the presence of certain formal and external signs.⁽⁶⁸⁾

The court further clarified this test by noting that “formal and external signs” include “formal services, ceremonial functions, the existence of clergy, structure and organization, efforts at propagation, observance of holidays and other similar manifestations associated with the traditional religions.”⁽⁶⁹⁾ Taken together, the Ninth Circuit cases of Pelozaand Alvarado provide a broad definition of religion for Establishment Clause purposes.

     Clearly, design theory does not satisfy this three-part test. Take the first part. Design theory does not attempt to address “fundamental and ultimate questions” concerning “deep and imponderable matters.”⁽⁷⁰⁾ On the contrary, design theory seeks to answer a question raised by Darwin as well as contemporary biologists: How did biological organisms acquire their appearance of design? Design theory, unlike neo-Darwinism, attributes this appearance to a designing intelligence, but it does not address the characteristics or identity of the designing intelligence. To be sure, design theory is consistent with theism and adds plausibility to the classical design arguments for the existence of God.⁽⁷¹⁾ But this compatibility does not make it a religious belief. As Justice Powell wrote in his concurrence to Edwards v. Aguillard: “A decision respecting the subject matter to be taught in public schools does not violate the Establishment Clause simply because the material to be taught ‘happens to coincide or harmonize with the tenets of some or all religions.'”⁽⁷²⁾ According to Powell, interference by the federal courts in the decisions of local and state educational officials is justified “only when the purpose for their decisions is clearly religious.”⁽⁷³⁾

The second part of the test identifies religion with a comprehensive belief system “as opposed to an isolated teaching.”⁽⁷⁴⁾ Design theory does not offer a theory of morality or metaphysics, or an opinion on the prospects for an afterlife. It requires neither a belief in divine revelation nor a code of conduct; nor does it purport to uncover the underlying meaning of the universe or to confer inviolable knowledge on its adherents. It is simply a theory about the source of the appearance of design in living organisms. It is a clear example of an “isolated teaching,” one that has no necessary connections to any spiritual dogma or church institution. Design theory has no religious pretensions. It simply tries to apply a well-established scientific method to the analysis of biological phenomena.

The third part of the test concerns the “presence of certain formal and external signs.”⁽⁷⁵⁾ The court provided a list of such signs, including liturgy, clergy, and observance of holidays. Obviously, design theory has none of these–no sacred texts; no ordained ministers, priests, or religious teachers; no “design theory liturgies”; no holidays; and no institutional structures like those of religious groups. Design theorists have formed organizations and institutes, but these resemble other academic or professional associations rather than churches or religious institutions.⁽⁷⁶⁾

     According to the court’s three-part test, design theory should not be classified as religion. To say that, however, is not to suggest that it has no religious implications. Design theory argues that a designing intelligence is responsible for the complex, information-rich structures of biology. Students who believe in God as creator may therefore find support for their faith from design theory and identify the designing intelligence responsible for biological complexity with the God of their religious belief. Alternatively, students with no religious convictions may find that design theory leads them to ask theological questions and to inquire into the identity of the designing intelligence responsible for biological complexity.

     This potential for religious extrapolation, however, does not make design theory a religious doctrine. Nor is this potential unique to design theory. It applies equally to Darwinism. Darwinism, which holds that life originated and evolved via an undirected natural process, implies that common religious beliefs about the origin and purpose of human life are, if not false, then implausible. Indeed, a host of prominent neo-Darwinian scientists and social thinkers–from Douglas Futuyma⁽⁷⁷⁾ to William Provine⁽⁷⁸⁾ to Stephen Jay Gould–have insisted that Darwinism has made traditional beliefs about God and humanity untenable. Consider the following statements by Gould:

• “Biology took away our status as paragons created in the image of God. . . .”⁽⁷⁹⁾ 
• “Before Darwin, we thought that a benevolent God had created us.”⁽⁸⁰⁾ 
• “Why do humans exist? . . . I do not think that any ‘higher’ answer can be given. . . . We are the offspring of history, and must establish our own paths in this most diverse and interesting of conceivable universes–one indifferent to our suffering, and therefore offering us maximal freedom to thrive, or to fail, in our own chosen way.”⁽⁸¹⁾

Contrary to the popular “just-the-facts” stereotype of science, many scientific theories have larger ideological and religious implications. Origins theories in particular have unavoidable philosophical and religious overtones. Theories about where the universe, life, and humanity came from invariably affect our perspectives about human nature, morality, and beliefs about ultimate reality. As many prominent evolutionary biologists have made clear, neo-Darwinian evolutionary theory does not maintain strict neutrality on such questions.

     Darwinism (in both its classical and contemporary versions) insists that living systems organized themselves into increasingly complex structures without assistance from a guiding intelligence. Chemical evolutionary theorists likewise insist that the first life arose from brute chemistry. The Oxford zoologist Richard Dawkins has dubbed this the “blind watchmaker” thesis. He and other leading evolutionary theorists claim that biological evidence overwhelmingly supports this purposeless and fully materialistic account of creation. Thus George Gaylord Simpson, the leading neo-Darwinist a generation back, could claim: “Man is the result of a purposeless and natural process that did not have him in mind. He was not planned.”⁽⁸²⁾

     Accordingly, many major biology texts present evolution as a process in which a purposeful intelligence (such as God) plays no detectable role. As Miller and Levine put it, evolution process is “random and undirected” and occurs “without plan or purpose.”⁽⁸³⁾ Some texts even state that Darwin’s theory has profoundly negative implications for theism, and especially for its belief in the purposeful design of nature. As Douglas Futuyma’s biology text puts it: “By coupling the undirected, purposeless variations to the blind, uncaring process of natural selection, Darwin made the theological or spiritual explanations of the life processes superfluous.”⁽⁸⁴⁾

     The content of a scientific theory, and not its implications, determines its legal status in public school science classrooms. Otherwise, the anti-theistic implications of neo-Darwinism (as articulated by some of its chief advocates) would disqualify it from inclusion in the curriculum. Obviously, such an outcome is unthinkable. Yet, if the implications, rather than the specific content, of neo-Darwinism and design theory were at issue, then arguably neither theory could pass constitutional muster. This result would not only undercut science education, but also violate constitutional precedents. One of the few fixed points in Establishment Clause jurisprudence during the last half-century has been that incidental harmonies with religious practices and beliefs do not disqualify secular concepts under the First Amendment.⁽⁸⁵⁾ 

5.  Edwards v. Aguillard

     The U.S. Supreme Court has ruled that educators and school officials may include non-Darwinian scientific theories alongside Darwinism in the science curriculum of public schools. The principal case in which the Court addressed the teaching of origins in the public schools is Edwards v. Aguillard. The background of this case is as follows. In the early 1980s creationists in Louisiana sought to introduce scientific creationism into the Louisiana public school system. As a result, the Louisiana legislature passed a law titled the “Balanced Treatment for Creation-Science and Evolution-Science in Public School Instruction Act.”⁽⁸⁶⁾ The Act did not require teaching either creationism or evolution, but did require that when one theory was taught, the other theory had to be taught as well.⁽⁸⁷⁾

     Several parents and concerned citizens challenged the constitutionality of the Act in Federal Court.⁽⁸⁸⁾ They argued that the Act violated the First Amendment’s Establishment Clause, which prohibits the government from officially endorsing a religious belief.⁽⁸⁹⁾ The State responded that the Act did not violate the First Amendment because it had the legitimate secular purpose of strengthening and broadening the academic freedom of teachers.⁽⁹⁰⁾ The district court and the Court of Appeals for the Fifth Circuit, however, found that the State’s actual purpose was to promote the religious doctrine of scientific creationism (known also as creation science).⁽⁹¹⁾ The Supreme Court granted certiorari and heard arguments by both sides.⁽⁹²⁾ On June 19, 1987 the Court issued its ruling in the case.⁽⁹³⁾

     The Court, in a majority opinion written by Justice Brennan, ruled that the Act constituted an unconstitutional infringement on the Establishment Clause of the First Amendment,⁽⁹⁴⁾ based on the Lemon test.⁽⁹⁵⁾ This test, which was first enunciated by the Court in Lemon v. Kurtzman,⁽⁹⁶⁾ consists of three prongs:

1. The government’s action must reflect a secular purpose; 
2. The government’s action must not have the primary effect of either advancing or inhibiting religion; and 
3. The government’s action must not result in an “excessive entanglement” of the government and religion.⁽⁹⁷⁾

If any of these three prongs is violated, the government’s action is deemed unconstitutional under the Establishment Clause.⁽⁹⁸⁾ The first of these prongs has become known as the “purpose prong.” The Court found that the Act violated the purpose prong and was therefore unconstitutional.⁽⁹⁹⁾ The Court did not consider whether the second and third prongs were also violated.

     The Court ruled that government intention to promote religion is clear “when the State enacts a law to serve a religious purpose.”⁽¹⁰⁰⁾ Since the legislative history of the Act constantly referenced the religious views of the legislators, the Court became suspicious of the State’s claim that the Act supported academic freedom.⁽¹⁰¹⁾ The Court found that the intent of the legislator who drafted the Act was to narrow the science curriculum in order to favor a particular religious belief (i.e., scientific creationism).⁽¹⁰²⁾ In support of this finding the Court noted that the Act’s sponsor actually preferred that “neither [creationism nor evolution] be taught.”⁽¹⁰³⁾ The Court therefore concluded that the Act undermined both academic freedom and science education.⁽¹⁰⁴⁾

     The Court also found that the Act did not grant teachers any new flexibility in teaching science that they did not already possess.⁽¹⁰⁵⁾ The Court noted that no Louisiana law barred the teaching of any scientific theory about biological origins.⁽¹⁰⁶⁾ Thus, since teachers were already free to teach scientific alternatives to Darwinian evolution, the Court reasoned that the Act did not expand the academic freedom already enjoyed by teachers in Louisiana.⁽¹⁰⁷⁾

     Having rejected the State’s proffered reason for the Act, the Court then uncovered what it regarded as the true intent of the Louisiana law: the promotion of a particular religious view. The Court found that the Act had a “discriminatory preference” for the teaching of creationism because it required the production of curriculum guides for creationism.⁽¹⁰⁸⁾ Further, it found that only creationism was protected by certain sections of the Act, and that the Act undercut truly comprehensive science instruction by limiting the theories of origins to be taught to only two: evolution and creationism.⁽¹⁰⁹⁾ To sum up, the Act directed public resources to the teaching of a religious doctrine (creationism) in the science curriculum of public schools; at the same time, the Act discriminated against other scientific theories of biological origins.

     In deciding against the Act, the Court was careful to point out that its decision in nowise excluded the teaching of other scientific theories about biological origins. Likewise, the Court left the door open to scientific critiques of evolution.⁽¹¹⁰⁾ In an illuminating section of the majority opinion, the Court even stated that teaching a variety of scientific theories about origins “might be validly done with the clear secular intent of enhancing the effectiveness of science instruction.”⁽¹¹¹⁾ This intent, however, was not present in the Act because the primary purpose of the State’s action was to promote a particular religious doctrine, thereby violating the Establishment Clause.

     The Court even went so far as to assert that academic freedom requires that alternative theories about origins be permitted in public school science classrooms.⁽¹¹²⁾ In particular, academic freedom includes a science teacher’s right to teach scientific alternatives to the dominant Darwinian approach to biological origins.⁽¹¹³⁾ As a legitimate scientific theory about biological origins and development, design theory passes every test set by the Court for inclusion in public school science curricula.

     Nothing in the Supreme Court’s decision in Edwards forces local school districts, the states, or the federal government to bar teaching about design theory.⁽¹¹⁴⁾ The Court explicitly stated in Edwards that it is constitutionally lawful for teachers and school boards to expose students to the scientific problems with current Darwinian theory as well as to any scientific alternatives.⁽¹¹⁵⁾ In Edwards v. Aguillard, far from placing its imprimatur on Darwinism, the Supreme Court actually defended the principle of openness in science education.⁽¹¹⁶⁾ 

6. Design and Scientific Creationism

     Against the clear precedent of Edwards v. Aguillard, some critics of design theory cite Edwards to support the exclusion of design from public schools. They charge that design theory is indistinguishable from scientific creationism–that it is just another name for scientific creationism. And since (as we’ve just seen) the Supreme Court’s decision in Edwards disallows scientific creationism in the public school science classroom, they argue that design theory must be excluded as well.

     On the contrary, design theory and scientific creationism differ in propositional content, method of inquiry, and, thus, in legal status. Recall that in Edwards the Court decided against the legality of scientific creationism because it constituted an advancement of religion. The court reached this decision in large part because the propositional content of scientific creationism closely mirrors the creation narrative in the book of Genesis.⁽¹¹⁷⁾ While philosophers of science now agree that the scientific status of an idea does not depend upon its source, the Court has held that the legal status of an idea–and therefore the legal status of any curriculum based on that idea–does depend on its source. Thus, given the court’s reasoning in Edwards, the teaching of scientific creationism remains legally problematic.

     Nevertheless, the court’s decision does not apply to design theory because design theory is not based on a religious text or doctrine. Design theory begins with the data that scientists observe in the laboratory and nature, and attempts to explain them based on what we know about the patterns that generally indicate intelligent causes. For design theorists, the conclusion of design constitutes an inference from biological data, not a deduction from religious authority.

     Furthermore, the propositional content of design theory differs significantly from that of scientific creationism. Scientific creationism is committed to the following propositions:⁽¹¹⁸⁾

1. There was a sudden creation of the universe, energy, and life from nothing. 
2. Mutations and natural selection are insufficient to bring about the development of all living kinds from a single organism. 
3. Changes of the originally created kinds of plants and animals occur only within fixed limits. 
4. There is a separate ancestry for humans and apes. 
5. The earth’s geology can be explained via catastrophism, primarily by the occurrence of a worldwide flood. 
6. The earth and living kinds had a relatively recent inception (on the order of ten thousand years).

These six tenets taken jointly define scientific creationism for legal purposes. The Court in Edwards ruled that taken jointly this group of propositions may not be taught in public school science classrooms. (Nevertheless, the Court left the door open to some of these tenets being discussed individually.⁽¹¹⁹⁾)

Design theory, on the other hand, asserts the following:

1. High information content (or specified complexity) and irreducible complexity constitute strong indicators or hallmarks of past intelligent design. 
2. Biological systems have a high information content (or specified complexity) and utilize subsystems that manifest irreducible complexity. 
3. Naturalistic mechanisms or undirected causes do not suffice to explain the origin of information (specified complexity) or irreducible complexity. 
4. Therefore, intelligent design constitutes the best explanation for the origin of information and irreducible complexity in biological systems.

A comparison of these two lists demonstrates clearly that design theory and scientific creationism differ markedly in content. Clearly, then, they do not derive from the same source. Thus, the Court’s ruling in Edwards does not apply to design theory and can provide no grounds for excluding discussion of design from the public school science curriculum. 

7. Viewpoint Discrimination

     Often school board members privately support teaching alternatives to Darwinism, whether because they themselves entertain doubts about Darwinism or because parents urge them to permit alternative theories. As soon as they publicly support exposing students to the scientific challenges to Darwinism, however, these same school board members are often intimidated by the threat of lawsuit. Maintaining the status quo by leaving Darwinism unchallenged therefore appears to them the safest course, even if it undercuts the science curriculum. Nevertheless, as public officials have learned from Lamb’s Chapel⁽¹²⁰⁾ and Rosenberger,⁽¹²¹⁾ discrimination from a misplaced fear over the Establishment Clause can be even more risky than permitting a diversity of viewpoints.

     The Supreme Court has ruled that the First Amendment prohibits the government from regulating speech based on “its substantive content or the message it conveys.”⁽¹²²⁾Accordingly, it is unconstitutional under the Free Speech Clause of the First Amendment to exclude ideas from a public forum simply because of the content of those ideas. The Court has strongly affirmed this principle in several opinions,⁽¹²³⁾ addressing issues as diverse as civil rights meetings,⁽¹²⁴⁾ the funding of a religiously-based student publication at a public university,⁽¹²⁵⁾ and the use of a public school auditorium by a religious group to show a film.⁽¹²⁶⁾

     In its most recent case on viewpoint discrimination–Rosenberger v. Rector and Visitors of the University of Virginia⁽¹²⁷⁾–the Supreme Court held that unduly restricting others out of a misplaced fear of violating the Establishment Clause is itself unconstitutional.⁽¹²⁸⁾ Rosenberger, a student at a state university, objected to the university’s refusal to grant his organization’s newspaper the same financial subsidy that had been granted to other campus organizations.⁽¹²⁹⁾ The university defended its policy by citing the newspaper’s evangelical Protestant perspective. The university held that any funding of the paper would constitute an endorsement of religion and thus be unconstitutional.⁽¹³⁰⁾The Supreme Court rejected this argument, holding that if a public institution opens a forum for free speech, it cannot then censor the forum based solely on the content of the speech expressed.⁽¹³¹⁾

     The Court noted that viewpoint discrimination is rightly “presumed to be unconstitutional.”⁽¹³²⁾ Nevertheless, when the government itself targets speech simply because of its content, “the violation of the First Amendment is all the more blatant.”⁽¹³³⁾ Consequently, the Court found that the government must “abstain” from content-based speech restrictions when the “ideology or the opinion or perspective of the speaker is the rationale for the restriction.”⁽¹³⁴⁾ The Court affirmed that the government must abstain from content-based suppression of speech even when the public forum where the speech occurs was created by the government in the first place.⁽¹³⁵⁾

     The Court’s position on viewpoint discrimination allows two exceptions. First, the government may control access to a non-public forum based “on subject matter and speaker identity” if the government’s action is reasonable given the forum’s purpose and if the action is viewpoint neutral.⁽¹³⁶⁾ This means that the government can suppress speech in a non-public forum if the speaker wants to discuss “a topic not encompassed within the purpose of the forum,”⁽¹³⁷⁾ or the speaker is outside of the special class for whom the forum was created.⁽¹³⁸⁾ Second, if the government is charged with viewpoint discrimination, it can clear itself of that charge by showing that to permit the speech in question would violate the Establishment Clause.⁽¹³⁹⁾

     Neither of these exceptions applies to Spokes’ plan to teach his students about design theory. The court showed itself quite willing to grant wide latitude for even explicitly religious speech or viewpoints, in the very case, namely, Rosenberger, where they articulated an Establishment clause exception to their general prohibition against viewpoint discrimination. If the Court had meant include all religious speech within this exception, it clearly could not have reached the decision it did in Rosenberger. In any case, as already argued, teaching about design theory does not constitute an establishment of religion.

     Moreover, the overwhelming majority of public schools (including presumably Spokes’) already address the subject of biological origins in their science curriculum. While the courts have limited the free speech rights of teachers in the public school context,⁽¹⁴⁰⁾ teachers do have the right to choose supplementary material that is appropriate to the subjects they have been mandated to teach. Likewise, students may certainly learn about current ideas relevant to the subjects they are studying.⁽¹⁴¹⁾ Further, the Supreme Court has found that teachers, students, and parents have a “liberty interest” under the Fourteenth Amendment’s Due Process Clause not to be prevented from studying certain subjects.⁽¹⁴²⁾ A critical aspect of this liberty interest is academic freedom. Academic freedom allows teachers to present appropriate material to their students without fear of censorship or retribution from the government. Teachers not only need academic freedom to teach effectively, but students need it to explore and develop new ideas. Without academic freedom, education becomes indoctrination.

     The First Amendment prohibits the government from interfering with people’s right to free speech.⁽¹⁴³⁾ Teachers have the right to present material that is appropriate to the subject they are teaching. Likewise, students have the right to be exposed to material that is appropriate to the subject they are studying.⁽¹⁴⁴⁾ Further, the Supreme Court has found that teachers, students, and parents have a “liberty interest” under the Fourteenth Amendment’s Due Process Clause not to be prohibited from studying certain subjects.⁽¹⁴⁵⁾ A critical aspect of this liberty interest is academic freedom. Academic freedom allows teachers to present appropriate material to their students without fear of censorship or retribution from the government. Academic freedom is essential not only for teachers to teach effectively, but also for students to explore and develop new ideas. Without academic freedom, education becomes indoctrination.

     The Supreme Court recognized this fundamental right to academic freedom in Epperson v. Arkansas.⁽¹⁴⁶⁾ In that case, the court struck down an Arkansas statute that restricted the teaching of biological origins.⁽¹⁴⁷⁾ The statute prohibited, with criminal sanction, the teaching of evolution in the public schools of that state.⁽¹⁴⁸⁾ It was challenged by a teacher who claimed that the statute violated her academic freedom.⁽¹⁴⁹⁾ The Supreme Court, in rejecting the Arkansas law as unconstitutional, strongly upheld the academic freedom of teachers in public schools.⁽¹⁵⁰⁾

     The Court found that the First Amendment’s guarantees apply to our school systems, where it is “essential to safeguard the fundamental values of freedom of speech and inquiry and of belief.”⁽¹⁵¹⁾ Quoting Keyishian v. Board of Regents, the Court made clear that “the First Amendment ‘does not tolerate laws that cast a pall of orthodoxy over the classroom.'”⁽¹⁵²⁾ Most significantly, the Court found that the government’s power to determine school curricula does not give it the power to prevent “the teaching of a scientific theory or doctrine where the prohibition is based upon reasons that violate the First Amendment.”⁽¹⁵³⁾ The same freedoms that apply to teaching students about Darwinian evolution apply with equal force to teaching them about design theory. 

8. The Authority of the Local School Board

     Until recently, Darwinian evolution has monopolized the teaching of biological origins in public schools. Yet with the accumulation of increasingly persuasive evidence for design theory, as well as a more careful reflection on the nature of science itself, the basis for excluding alternative theories has evaporated. Thus, when science teachers seek to present design theory to their students to provide a more thorough treatment of biological origins, school officials need to make every effort not only to encourage them but also to assure that they are not subjected to unwarranted legal or social intimidation. Indeed, the exclusion of design theory from public school science curricula may constitute a form of viewpoint discrimination that not only undermines academic freedom but also violates the First Amendment’s Free Speech Clause.⁽¹⁵⁴⁾

     Traditionally, local school boards have exercised broad discretion in deciding what subjects and materials are appropriate for inclusion within the curriculum of public schools. This discretion extends to the origins issue. The Supreme Court has repeatedly upheld the freedom of school boards to exercise discretion in the selection of curriculum materials.⁽¹⁵⁵⁾ For instance, Justice Powell, in his concurrence to Edwards, stressed that the Court’s decision in no way restricted the traditional rights of school boards and other local public education officials to set the curriculum:

[N]othing in the Court’s opinion diminishes the traditionally broad discretion accorded state and local school officials in the selection of the public school curriculum.⁽¹⁵⁶⁾

The freedom of school boards to determine what can be included in their curricula is a long-established prerogative. No Supreme Court decision about biological origins has questioned this freedom. In fact, the Court has upheld the principle that a school board has the right to decide what subjects will be taught in its schools, and within broad limits, how those subjects are to be taught. This is not to say there are no limits to the local school boards’ discretion. Those limits, however, are designed to prevent the discriminatory exclusion of viewpoints–not to inhibit the teaching of a full range of scientific theories. Thus, the question is not whether school boards have the freedom to include design theory in the science curriculum of the public schools, but whether there is a valid reason to exclude it.

     The Supreme Court has ruled that school boards do not enjoy unlimited power to exclude ideas from the classroom and school libraries. In Board of Education, Island Trees Union Free School District v. Pico⁽¹⁵⁷⁾ a local school board had removed several books from its public school library system.⁽¹⁵⁸⁾ When this exclusion was challenged, Justice Brennan, writing for the Court, stated that local school boards cannot remove books from the public school library merely because the school board disagrees with the ideological content of those books. Brennan wrote:

[J]ust as access to ideas makes it possible for citizens generally to exercise their rights to free speech and press in a meaningful manner, such access prepares students for active participation in the pluralistic, often contentious society in which they will soon be adult members.⁽¹⁵⁹⁾

Schools cannot, by removing material from their libraries, enforce an orthodoxy prescribing the ideas that can and cannot be presented to students.⁽¹⁶⁰⁾ The students’ unimpeded access to ideas is critical if they are to succeed in an open society where ideas are discussed and disputed.⁽¹⁶¹⁾ If a school board fails to provide students with reasonable access to ideas, it fails to perform one of its most crucial functions. The Court distinctly denies school boards the right to suppress ideas.

     To summarize, the safest course is one in which a school board permits a biology teacher to teach the full range of scientific theories about origins. In doing so, the board would be following the specific guidance issued in Edwards v. Aguillard, as well as upholding the more general efforts of the Court to avoid viewpoint discrimination. On the other hand, a school board that rejects a teacher’s effort to teach the full range of scientific theories would place the board on a collision course with the First Amendment. Such a board sets itself the impossible task of specifying precisely what the teacher would be forbidden to teach: Is it only the theory of intelligent design, or does the prohibition also include the evidence upon which the theory is based? May the teacher introduce evidence that contradicts Darwinian expectations? In a misguided effort to avoid litigation, a school board might very well create its own minefield of illogical and unenforceable guidelines. Instead, we suggest, the school board should encourage the biology teacher to teach the controversy. This approach not only helps a science curriculum fulfill its scientific objectives, but also provides it with the soundest footing from a legal standpoint. 

9. Conclusion

     Local school boards and state education officials are frequently pressured to avoid teaching the controversy regarding biological origins. Indeed, many groups, such as the National Academy of Sciences, go so far as to deny the existence of any genuine scientific controversy about the issue.⁽¹⁶²⁾ Nevertheless, teachers should be reassured that they have the right to expose their students to the problems as well as the appeal of Darwinian theory. Moreover, as the previous discussion demonstrates, school boards have the authority to permit, and even encourage, teaching about design theory as an alternative to Darwinian evolution–and this includes the use of textbooks such as Of Pandas and People that present evidence for the theory of intelligent design.

     The controlling legal authority, the Supreme Court’s decision in Edwards v. Aguillard, explicitly permits the inclusion of alternatives to Darwinian evolution so long as those alternatives are based on scientific evidence and not motivated by strictly religious concerns. Since design theory is based on scientific evidence rather than religious assumptions, it clearly meets this test. Including discussions of design in the science curriculum thus serves an important goal of making education inclusive, rather than exclusionary. In addition, it provides students with an important demonstration of the best way for them as future scientists and citizens to resolve scientific controversies–by a careful and fair-minded examination of the evidence. 

Notes

• ¹ Ronald L. Numbers, The Creationists (New York: Knopf, 1992), x. This is the characterization of scientific creationism used in the 1982 Arkansas creation trial: McLean v. Arkansas Board of Education, 529 F. Supp. 1255 (E.D. Ark. 1982).
• ² See the discussion of Edwards v. Aguillard in section 5.
• ³Edwards v. Aguillard, 482 U.S. 578, 594 (1987).
• ⁴Richard Dawkins, The Blind Watchmaker: Why the Evidence of Evolution Reveals a Universe Without Design (New York: Norton, 1987), 1.
• ⁵Francis Crick, What Mad Pursuit (New York: Basic Books, 1988), 138.
• ⁶Michael J. Behe, Darwin’s Black Box (New York: Free Press, 1996); Charles B. Thaxton, Walter L. Bradley, and Roger L. Olsen, The Mystery of Life’s Origin (New York: Philosophical Library, 1984); William A. Dembski, ed., Mere Creation (Downers Grove, Ill.: InterVarsity Press, 1998); William A. Dembski, The Design Inference (Cambridge: Cambridge University Press, 1998); Percival Davis and Dean H. Kenyon, Of Pandas and People, 2nd ed. (Dallas: Haughton, 1993). For a guide to the scientific and scholarly literature on design theory, consult the extensive references in Mere Creation.
• ⁷Dembski, The Design Inference, 1-35.
• ⁸Ibid., 92-135, 175-223.
• ⁹Ibid., 136-174. Complex sequences are those that exhibit an irregular and improbable arrangement that defies expression by a simple rule or algorithm. A specification, on the other hand, is a match or correspondence between a physical system or sequence and a set of independent functional requirements or constraints. To illustrate these concepts (of complexity and specification) consider the following three sets of symbols:inetehnsdysk]idfawqnz,mfdifhsnmcpew,ms.s/aOne step for man, one giant step for mankind.ABABABABABABABABABABABABABBoth the first and second sequences shown above are complex because both defy reduction to a simple rule. Each represents a highly irregular, aperiodic, and improbable sequence of symbols. The third sequence is not complex, but is instead highly ordered and repetitive. Of the two complex sequences, only one exemplifies a set of independent functional requirements–i.e., it is specified. English has a number of such functional requirements. For example, to convey meaning in English one must employ existing conventions of vocabulary (associations of symbol sequences with particular objects, concepts, or ideas) and existing conventions of syntax and grammar (such as that every sentence requires a subject and a verb). When arrangements of symbols match or utilize existing vocabulary and grammatical conventions (i.e., functional requirements), communication can occur. Such arrangements exhibit specification. The second sequence (“One step for man, one giant step for mankind”) clearly exhibits such a match between itself and the pre-existing requirements of vocabulary and grammar. It has employed these conventions to express a meaningful idea.
• Indeed, of the three sequences above only the second (“One step for man, one giant step for mankind”) manifests both the jointly necessary indicators of a designed system. The third sequence lacks complexity, though it does exhibit a simple periodic pattern and therefore a specification. The first sequence is, as we have seen, complex but not specified. Only the second sequence, exhibits both complexity and specification. Thus, according to Dembski’s theory, only the second sequence, but not the first and third, implicates an intelligent cause–as indeed our intuition tells us.
• ¹⁰Dembski, The Design Inference, 36-47.
• ¹¹Bruce Alberts, “The Cell as a Collection of Protein Machines: Preparing the Next Generation of Molecular Biologists,” Cell 92 (February 8, 1998): 291.
• ¹²Michael J. Behe, Darwin’s Black Box (New York: The Free Press, 1996), 51-73.
• ¹³Ibid., 69-73.
• ¹⁴Ibid., 165-86.
• ¹⁵Ibid., 187-208.
• ¹⁶Stephen C. Meyer, “A Scopes Trial for the 90s,” The Wall Street Journal, December 6, 1993, A14. See also the follow-up piece “The Harmony of Natural Law,” January 17, 1994, Letters to the Editor, A9.
• ¹⁷Dean Kenyon and G. Steinman, Biochemical Predestination (New York: McGraw-Hill).
• ¹⁸Richard Dawkins, River Out of Eden (New York: Basic Books, 1995), 10.
• ¹⁹Bill Gates, The Road Ahead (Boulder: Blue Penguin, 1996), 228.
• ²⁰Stephen C. Meyer, “DNA by Design: An Inference to the Best Explanation for the Origin of Biological Information,” Rhetoric & Public Affairs 1(4) (Winter 1998): 519-556. Stephen C. Meyer, “The Explanatory Power of Design: DNA and the Origin of Information,” in Dembski, ed., Mere Creation, 113-147.
• ²¹Dean Kenyon, Foreword, in Charles B. Thaxton, Walter L. Bradley, and Roger L. Olsen, The Mystery of Life’s Origin, by (New York: Philosophical Library, 1984), v-viii and Thaxton et al., Mystery of Life’s Origin, pp. 188-217; Stephen C. Meyer, “DNA by Design,” 540-547; Stephen C. Meyer, ” The Explanatory Power of Design,” 134-140.
• ²²D. H. Erwin, J. W. Valentine, and J. J. Sepkowski, “A Comparative Study of Diversification Events: The Early Paleozoic Versus the Mesozoic,” Evolution 41 (1987): 1177-1186. Roger Lewin, “A Lopsided Look at Evolution,” Science 241 (July 15, 1988): 292.
• ²³Stephen C. Meyer, John Wiester, Marcus R. Ross, Paul A. Nelson, and Paul Chien, “The Cambrian Explosion: Biology’s Big Bang,” in John A. Campbell, ed., Darwinism, Design, and the Philosophy of Public Education (expected publication by Michigan State University, forthcoming).
• ²⁴Jonathan Wells and Paul Nelson, “Homology: A Concept in Crisis,” Origins & Design 18(2) (Fall 1997): 12-19.
• ²⁵The National Academy of Sciences’ Teaching About Evolution and the Nature of Science (Washington, D.C.: National Academy Press, 1998) contains the following statement by the National Association of Biology Teachers (Appendix C):
• The same examination, pondering and possible revision have firmly established evolution as an important natural process explained by valid scientific principles, and clearly differentiate and separate science from various kinds of nonscientific ways of knowing, including those with a supernatural basis such as creationism. Whether called “creation science,” “scientific creationism,” “intelligent-design theory,” “young-earth theory” or some other synonym, creation beliefs have no place in the science classroom. Explanations employing non-naturalistic or supernatural events, whether or not explicit reference is made to a supernatural being, are outside the realm of science and not part of a valid science curriculum. Evolutionary theory, indeed all of science, is necessarily silent on religion and neither refutes nor supports the existence of a deity or deities.
• ²⁶McLean v. Arkansas, 529 F. Supp. 1255 (E.D. Ark. 1982).
• ²⁷Ibid, 1258, 1264. The court specifically found that the Arkansas law “was passed with the specific purpose by the [Arkansas legislature] of advancing religion.” Ibid, 1264. This placed the law directly in conflict with the First Amendment’s Establishment Clause under the Lemon test. For a statute to pass constitutional muster under Lemon it must have a secular legislative purpose, it cannot either advance or inhibit religion, and it must not foster an excessive entanglement between government and religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971); Stone v. Graham, 449 U.S. 39, 40 (1980). A violation of any of the prongs of the Lemon test results in a violation of the Establishment Clause. Lemon, 613; McLean, 1258. The court in McLean found that the Arkansas law’s purpose was to advance religion in the public schools in violation of Lemon‘s first prong. McLean, 1264. The court also found that the Arkansas law would result in an impermissible entanglement with religion, violating the third prong of Lemon. Ibid., 1272.
• ²⁸McLean, 1267-1272. The answer, not surprisingly, was 
  “No.” Ibid., 1267. The court’s language was unambiguous: “Section 4(a) [of the Arkansas law] lacks legitimate educational value because ‘creation science’ as defined in that section is simply not science.” Ibid. See Robert M. Gordon, “McLean v. Arkansas Board of Education: Finding the Science in ‘Creation Science,'” Northwestern University Law Review 77 (1982): 374.
• ²⁹Ibid.
• ³⁰Ibid. In the court’s words, these five points are the “essential characteristics of science.” McLean, 1267.
• ³¹McLean, 1267. See also Numbers, The Creationists, 250. The court derived these “essential characteristics of science” from the testimony of several expert witnesses, the most prominent of whom was Michael Ruse, a philosopher of science and apologist for Darwinism, who has since changed his mind. See text accompanying notes 52 to 53 below.
• ³²482 U.S. 578 (1986). Cf. section 5.
• ³³Larry Laudan, “Science at the Bar–Causes for Concern,” in Michael Ruse, ed., But Is It Science? (Buffalo, N.Y.: Prometheus Books, 1988), 351-355. Philip Quinn, “The Philosopher of Science as Expert Witness,” in Ruse, ed., But Is It Science?, 367-385.
• ³⁴Laudan, “Science at the Bar,” 351.
• ³⁵Ibid. Cf. 482 U.S. 578 (1986) and section 5.
• ³⁶Imre Lakatos, “Falsification and the Methodology of Scientific Research Programmes,” in Imre Lakatos and Alan Musgrave, eds., Criticism and the Growth of Knowledge, (Cambridge: Cambridge University Press, 1970), 189-195.
• ³⁷Ibid.
• ³⁸Larry Laudan, “The Demise of the Demarcation Problem,” in Ruse, ed., But Is It Science?, 349.
• ³⁹Martin Eger, quoted by Jon Buell in “Broaden Science Curriculum,” Dallas Morning News, March 10, 1989.
• ⁴⁰Laudan, “The Demise of the Demarcation Problem”; Laudan, “Science at the Bar,” 354.
• ⁴¹Laudan, “Science at the Bar,” 352.
• ⁴²Ibid.
• ⁴³Charles Darwin, The Origin of Species by Means of Natural Selection (Harmondsworth: Penguin Books, 1984 [1859]), 195.
• ⁴⁴Laudan, “Science at the Bar,” 354.
• ⁴⁵Ibid.
• ⁴⁶Stephen C. Meyer, “The Nature of Historical Science and the Demarcation of Design and Descent,” in Jitse M. van der Meer, ed., Facets of Faith and Science (Lanham, Md.: University Press of America, 1996): 91-130. Stephen C. Meyer, “The Methodological Equivalence of Design and Descent,” in The Creation Hypothesis: Scientific Evidence for an Intelligent Designer (Downers Grove, Ill.: InterVarsity Press, 1994), 67-112. Stephen C. Meyer, “The Demarcation of Science and Religion,” in The History of Science and Religion in the Western Tradition: An Encyclopedia (Gary Ferngren, Edward Larsen, and D.W. Amundsen, eds.). Stephen C. Meyer, “The Nature of Historical Science and the Demarcation of Design and Descent” in Facets of Faith and Science, ed. Jitse M. van der Meer, 91-130 (1996).
• ⁴⁷Elliott Sober, Philosophy of Biology, (Boulder: Westview Press, 1993), 27-56.
• ⁴⁸Meyer, “The Nature of Historical Science and the Demarcation of Design and Descent,” 91-130; Meyer, “The Methodological Equivalence of Design and Descent,” 67-112.
• ⁴⁹Interestingly, there is considerable evidence that some advocates of these demarcation arguments in the Arkansas trial knew them to be inadequate at the time of the trial itself. For example, Barry Gross, a philosopher of science who served as a consultant to the A.C.L.U., has written that he informed the A.C.L.U. at the time of the trial that the McLean criteria were inaccurate and inadequate. As he wrote after the trial, “Philosophically, these criteria may have been acceptable sixty or eighty years ago, but they are not rigorous, they are redundant, and they take no account of many distinctions [or] of historical cases. The opinion does not state whether they are singly necessary or jointly sufficient. One would not recommend to graduate school a student who could do no better than this.” Barry Gross, “Commentary: Philosophers at the Bar–Some Reasons for Restraint,” Science, Technology, and Human Values, Fall 1983, 36.
• ⁵⁰Eugenie Scott, Testimony to U.S. Commission on Civil Rights: Schools and Religion Project, Seattle Briefing, August 21, 1998, 222, 228-229.
• ⁵¹Ibid., 208-216.
• ⁵²Ruse, February 13, 1993, Annual Meeting of the AAAS, Speech to the Symposium on “The New Anti-Evolutionism.”
• ⁵³Michael Ruse, Monad to Man (1997).
• ⁵⁴Davis and Kenyon, Of Pandas and People.
• ⁵⁵Jay D. Wexler, “Of Pandas, People, and the First Amendment: The Constitutionality of Teaching Intelligent Design in the Public Schools,” Stanford Law Review 49 (1997): 439. According to Wexler intelligent design “constitutes an inappropriate endorsement of religious belief, rather than simply the communication of an alternative scientific theory.” Ibid., 444.
• ⁵⁶The First Amendment’s Establishment Clause reads “Congress shall make no law respecting an establishment of religion.” The Establishment Clause has been extended by the Fourteenth Amendment to prohibit the establishment of religion at all levels of government (local, state, and federal). Cf. Everson v. Board of Education, 330 U.S. 1, 8 (1947).
• ⁵⁷Wexler, “Of Pandas, People, and the First Amendment,” 467-468.
• ⁵⁸For Wexler the scientific merit of intelligent design is “not . . . a very important question after all.” Ibid. The only important question for him is whether teaching intelligent design violates the requirement that schools refrain from teaching religion. Wexler regards intelligent design as inherently religious and therefore as needing to be excluded from the public school system. Ibid., 468.
• ⁵⁹Peloza v. Capistrano Unified School District, 37 F.3d 517 (9th Cir. 1994).
• ⁶⁰Ibid., 519.
• ⁶¹Ibid., 521.
• ⁶²Ibid. Here the Ninth Circuit court cited Smith v. Board of School Commissioners of Mobile County, 827 F.2d 684, 690-695 (11th Cir. 1987); and U.S. v. Allen, 760 F.2d 447, 450-451 (2d Cir. 1985), n.5.
• ⁶³Ibid., 450-451 citing Allen and quoting Laurence Tribe, American Constitutional Law (Mineola, N.Y.: Foundation Press, 1978), 827-828.
• ⁶⁴Alvarado v. City of San Jose, 94 F.3d 1223 (9th Cir. 1996).
• ⁶⁵Ibid., 1226.
• ⁶⁶Ibid., 1228-1231.
• ⁶⁷Ibid., 1229. The test used by the court was first proposed in Malnak v. Yogi, 592 F.2d 197, 200-215 (3d Cir. 1979) (Adams, J., concurring). It was adopted for use by the Third Circuit in Africa v. Pennsylvania, 662 F.2d 1025, 1031 (3d Cir. 1981) cert. den. 456 U.S. 908 (1982).
• ⁶⁸Alvarado v. City of San Jose, 94 F.3d 1128 (9th Cir. 1996) quoting Malnak, 1032 (Adams, J., concurring).
• ⁶⁹Alvarado, 1128 quoting Malnak, 1035-1036 (Adams, J., concurring).
• ⁷⁰Alvarado, 1228 quoting Malnak, 1032.
• ⁷¹Cf. Dembski, ed., Mere Creation.
• ⁷²Edwards, 605 (Powell, J., concurring) quoting McGowan v. Maryland, 366 U.S. 420, 442 (1961).
• ⁷³Edwards, 605.
• ⁷⁴Ibid.
• ⁷⁵Ibid.
• ⁷⁶E.g., Seattle’s Discovery Institute (www.discovery.org) and Baylor University’s Michael Polanyi Center (www.baylor.edu/~polanyi).
• ⁷⁷Douglas Futuyma, Evolutionary Biology (3d ed. 1997).
• ⁷⁸William Provine, “Evolution and the Foundation of Ethics,” 3 MBL Science 25, 26 (1988) (“The implications of modern evolutionary biology are inescapable. . . . Evolutionary biology undermines the fundamental assumptions underlying ethical systems in almost all cultures, Western civilization in particular”).
• ⁷⁹Stephen Jay Gould, Ever Since Darwin (New York: Norton, 1977), 147.
• ⁸⁰Ibid., 267.
• ⁸¹Stephen Jay Gould, Wonderful Life (New York: Norton, 1989), 322-323.
• ⁸²George Gaylord Simpson, The Meaning of Evolution, rev. ed. (New Haven, Conn.: Yale University Press, 1967), 345, emphasis added.
• ⁸³Kenneth R. Miller and Joseph Levine, Biology, 4th ed. (Englewood Cliffs, N.J.: Prentice-Hall, 1998), 658.
• ⁸⁴Futuyma, Evolutionary Biology, 3.
• ⁸⁵Edwards, 605.
• ⁸⁶La.Rev.Stat.Ann. 17:286.1-17.286.7 (West 1982). We will refer to it in this section simply as “the Act.”
• ⁸⁷Ibid.
• ⁸⁸Edwards, 581.
• ⁸⁹Ibid., 581-582.
• ⁹⁰Ibid., 581.
• ⁹¹Ibid., 582.
• ⁹²Ibid.
• ⁹³Ibid., 578.
• ⁹⁴Ibid., 582.
• ⁹⁵Ibid., 596.
• ⁹⁶Lemon v. Kurtzman, 403 U.S. 602, 612-613, 91 S.Ct. 2105, 2111 (1971). The Lemon test has been widely used by the Supreme Court since its inception. Two exceptions are Marsh v. Chambers, 463 U.S. 783 (1983) and Rosenberger v. Rector and Visitors of the University of Virginia, U.S. 115 S.Ct. 2510 (1995). Neither of these cases, however, deals with the teachings of origins in public schools.
• ⁹⁷Lemon, 612-613.
• ⁹⁸Edwards, 583.
• ⁹⁹Ibid., 591.
• ¹⁰⁰Ibid.
• ¹⁰¹Ibid., 591-593.
• ¹⁰²Ibid., 587.
• ¹⁰³Ibid.
• ¹⁰⁴Ibid.
• ¹⁰⁵Ibid.
• ¹⁰⁶Ibid.
• ¹⁰⁷Ibid., 590.
• ¹⁰⁸Ibid., 588.
• ¹⁰⁹Ibid.
• ¹¹⁰Ibid., 593.
• ¹¹¹Ibid., 594.
• ¹¹²Ibid., 587.
• ¹¹³Ibid.
• ¹¹⁴Ibid., 596.
• ¹¹⁵Ibid., 593-594.
• ¹¹⁶Ibid.
• ¹¹⁷“The evidence establishes that the definition of ‘creation science’ . . . has as its unmentioned reference the first 11 chapters of the Book of Genesis. Among the many creation epics in human history, the account of sudden creation from nothing, or creatio ex nihilo, and subsequent destruction of the world by flood is unique to Genesis.” McLean v. Arkansas, 1264-1265.
• ¹¹⁸Numbers, The Creationists, x.
• ¹¹⁹Indeed the Court recognized that some of these individual tenets may form legitimate topics for scientific discussion, and thus could be included in a valid public school science curriculum. For example, consider tenet (3): scientists have increasingly debated whether or not there are limits to morphological change among biological organisms. According to the neo-Darwinian synthesis there are no limits whatsoever: all organisms trace their ancestry back to an original single-celled organism. This view is called “monophyly” or “common descent” and contrasts with “polyphyly,” the view that some groups of organisms have separate ancestries. Some scientists now cite evidence from the fossil record, molecular sequence analyses, and developmental biology to support this latter view. Similarly, many scientists have expressed increasing skepticism about the sufficiency of neo-Darwinian mechanisms of mutation and natural selection. Many science teachers will want to discuss these scientific developments with their students. See Stuart A. Kauffman, The Origins of Order: Self-Organization and Selection in Evolution (New York: Oxford University Press, 1993); Rudolf Raff, The Shape of Life: Genes, Development, and the Evolution of Animal Form (Chicago: University of Chicago Press, 1996); Bernard John and George L. G. Miklos, The Eukaryote Genome in Development and Evolution (London: Allen & Unwin, 1988); G. L. G. Miklos and K. S. W. Campbell, “From Protein Domains to Extinct Phyla: Reverse Engineering Approaches to the Evolution of Biological Complexities,” in Early Life on Earth, Nobel Symposium No. 84, ed. S. Bengtson (New York: Columbia University Press, 1993).
• ¹²⁰Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 394 (1993).
• ¹²¹Rosenberger, 2510, 2516.
• ¹²²Id. (plurality opinion) citing Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96 (1972).
• ¹²³Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804 (1983) citing Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 65 (1983); Consolidated Edison Co. v. Public Service Comm’n, 447 U.S. 530, 535-536 (1980); Carey v. Brown, 447 U.S. 455, 462-463 (1980); Young v. American Mini Theatres, Inc., 427 U.S. 50, 63, 65, 67-68 (1976) (plurality opinion); Mosely, 92, 95-96. See also Lamb’s Chapel, 384, 394; Rosenberger, 2510, 2516 (plurality opinion) citing Turner Broadcasting System, Inc. v. FCC, 512 U.S. 114 S.Ct. 2445, 2458-2459 (1994).
• ¹²⁴Cornelius v. NAACP Legal Defense and Education Fund, Inc., 473 U.S. 788 (1985).
• ¹²⁵Rosenberger, 2510.
• ¹²⁶Lamb’s Chapel, 384 .
• ¹²⁷ Rosenberger, 2510.
• ¹²⁸Ibid., 2516.
• ¹²⁹Ibid., 2515-2516.
• ¹³⁰Ibid., 2515.
• ¹³¹Ibid., 2516.
• ¹³²Ibid.
• ¹³³Ibid.
• ¹³⁴Ibid., citing Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 46 (1983).
• ¹³⁵Ibid. See also Cornelius, 788, 806.
• ¹³⁶Cornelius, 806 citing Perry Ed. Assn., 49.
• ¹³⁷Ibid., citing Lehman v. City of Shaker Heights, 418 U.S. 298 (1974).
• ¹³⁸Ibid., citing Perry Ed. Assn., 49.
• ¹³⁹Lamb’s Chapel, 384, 394 quoting May v. Evansville-Vanderburgh School Corp., 787 F.2d 1105, 1114 (7th Cir. 1986). The Ninth Circuit in Peloza, 517, 522 held that the interest of avoiding an Establishment Clause violation trumps free speech rights.
• ¹⁴⁰Peloza, 37 F.3d at 522, quoting Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 506-07 (1969).
• ¹⁴¹Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 506-07 (1969).
• ¹⁴²Ibid.
• ¹⁴³U.S. Const. Amend. 1, as incorporated to the states by the Fourteenth Amendment.
• ¹⁴⁴Tinker, 506.
• ¹⁴⁵Ibid.
• ¹⁴⁶Epperson, 97.
• ¹⁴⁷Ibid., 98.
• ¹⁴⁸Ibid.
• ¹⁴⁹Ibid., 100.
• ¹⁵⁰Ibid., 104-106.
• ¹⁵¹Ibid., 104.
• ¹⁵²Ibid., 105 quoting Keyishian , 589, 603.
• ¹⁵³Ibid., 107.
• ¹⁵⁴Cf. Rosenberger.
• ¹⁵⁵See, for example, Bethel School District No. 403 v. Fraser, 478 U.S. 675, 683 (1986); Tinker, 503, 507; Board of Education Island Trees Union Free School Distract No. 26 v. Pico, 457 U.S. 853, 864 (1982).
• ¹⁵⁶Edwards, 597 (Powell, J., concurring).
• ¹⁵⁷Pico, 853.
• ¹⁵⁸Ibid.
• ¹⁵⁹Ibid., 868.
• ¹⁶⁰The Court stated in Tinker, 511 that schools must not attempt to view students as “closed-circuit recipients of only that which the state chooses to communicate.”
• ¹⁶¹Pico, 868.
• ¹⁶²National Academy of Sciences, Teaching About Evolution and the Nature of Science, 4. As their book puts it: “Scientists continue to debate only the particular mechanisms that result in evolution, not the overall accuracy of evolution as the explanation of life’s history.” 
  

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