Does Challenging Darwin Create Constitutional Jeopardy? A Comprehensive Survey of Case Law Regarding the Teaching of Biological Origins

Original Article

This article appears in the legal journal Hamline University Law Review, Vol. 32(1):1-64 (Winter, 2009), published by Hamline University School of Law.

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The teaching of biological origins in public schools remains a contentious scientific, cultural, and legal debate. With the increase of public interest in this topic, it is essential for attorneys, legal scholars, and educational authorities to have an awareness of the full breadth of case law on this issue. Yet at present, a comprehensive collation and summary of the relevant cases is absent from the literature. Moreover, few have bothered to engage in a careful review of the case law to determine if evolution actually is beyond scrutiny in public schools. This article attempts to exhaustively survey the case law relevant to the teaching of biological origins, dividing the cases into three major categories: (1) Cases upholding the right to teach about evolution; (2) Cases rejecting the teaching of alternatives to evolution; and (3) Cases rejecting disclaimers regarding the teaching of evolution. The range of constitutionally permissible policies for teaching evolution can also be understood by studying policies that have not engendered lawsuits. Twenty-one cases will be reviewed, as well as various policies that have not faced legal challenges, revealing that while courts have firmly upheld the rights of educators to teach evolution and have rejected attempts to teach creationism, none of these cases stands for the proposition that a curriculum that teaches scientific critiques of evolution would necessarily place a school board in constitutional jeopardy. Indeed, case law and the public policy history of this issue suggest precisely the opposite: curricular policies in public schools need not unilaterally support evolution. Rather, as the U.S. Supreme Court has stated, “scientific critiques of prevailing scientific theories [may] be taught” provided that such curricula are enacted with the “clear secular intent of enhancing the effectiveness of science instruction.” Educators that choose to improve science education by teaching both the scientific evidence supporting modern Darwinian theory, as well as the scientific evidence that challenges this view, can rest assured that they are on firm legal ground and that Darwin himself may even be smiling approvingly from whichever realm of the afterlife he resides today.

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Casey Luskin

Associate Director and Senior Fellow, Center for Science and Culture
Casey Luskin is a geologist and an attorney with graduate degrees in science and law, giving him expertise in both the scientific and legal dimensions of the debate over evolution. He earned his PhD in Geology from the University of Johannesburg, and BS and MS degrees in Earth Sciences from the University of California, San Diego, where he studied evolution extensively at both the graduate and undergraduate levels. His law degree is from the University of San Diego, where he focused his studies on First Amendment law, education law, and environmental law.