Remarks of Sr. Fellow David DeWolf to Darby, MT School Board

Remarks of Discovery Institute Sr. Fellow David Dewolf, Professor of Law Gonzaga Law School to Darby School District
January 28, 2004

Thank you. I am very appreciative of your allowing me to offer my reflections on the proposed policy. Before I do so, I’d like to clarify my role in this process.

Although I have an opinion regarding the constitutionality of the proposed policy, I want to make clear that I am not purporting to give advice to a client. Obviously, the Darby School District must retain its own legal counsel for advice, and you would presumably want to hear that advice in a more confidential setting than one provided at a public meeting.

On the other hand, I think I can be helpful to the board in its effort to evaluate the legal issues that the Board is confronting.

As my letter to the Board indicated, my views on this subject were quoted by Senator Rick Santorum in introducing language in the U.S. Senate, and following a series of positive endorsements by both sides of the aisle, the Senate voted 91-8 to adopt Sen. Santorum’s amendment. The question of how to approach this issue has obviously been the focal point of very animated discussion, not only here but in a number of different school districts across the country.

As I understand it, individuals and groups have advised the Board that its adoption of the proposed policy would place it in legal jeopardy, both by placing it out of compliance with state educational standards, and by inviting private suits against the Board challenging the constitutionality of the policy.

Speaking in my capacity as a scholar in this area, I can say that I believe that both of these fears are unfounded.

First, with respect to state educational standards, the policy itself incorporates much of the language that is used to describe science standards, and to the extent the state science standards are augmented in the policy, they enhance rather than detract from the district’s compliance with those standards. In fact, as I believe previous testimony to the Board has demonstrated, a failure to consider the origins issue in a critical way would run counter to state science standards.

Moreover, there educational law repeatedly emphasizes the freedom that local school boards have to decide how to structure the curriculum.

But my expertise is more in the area of the second question, which is whether this policy could be challenged as violating the constitution. As I understand it, the challenges have been based upon the assertion that intelligent design is simply a disguised form of scientific creationism, one that the courts have disallowed. I believe that all of the members of the Board have been given a copy of the law review article on “Teaching the Controversy,” which explains the differences between intelligent design theory and the Bible-based curricula that the Court rejected in Edwards v. Aguillard. But it is not my purpose tonight to defend the teaching of intelligent design, because the policy, as I understand it, does not address it. What the policy encourages is the consideration of the strengths as well as the weaknesses of the Darwinian theory of biological evolution.

At this stage the Board — as far as I have been able to determine — has not adopted any policy with respect to whether intelligent design theory belongs in a science class that is considering the strengths and weaknesses of Darwinian theory. I would expect that the science teachers themselves, in consultation with appropriate specialists in the area, would make the decisions about how best to carry out the Board’s directive in this area.

That brings me to a related concept, which is that the Court in Edwards v. Aguillard made it very clear that it was interested in enhancing the teacher’s ability to explore the subject with the maximum degree of freedom. One of the reasons that the court in Edwards rejected the Louisiana statute was that the statute, although it purported to enhance academic freedom, actually placed obstacles in the way of the teacher who wanted the best for his or her students.

The proposed policy, by contrast, seems aimed at assuring the teacher in two important ways: first, the teacher is assured that the Darwinian theory of evolution need not be treated as an established fact, but rather may be subjected to the same critical scrutiny that other scientific theories provoke. Second, the teacher is assured that, by taking time to insure that questions about this theory are raised, and that propositions can be vigorously debated, the teacher is not detracting from a predetermined schedule, but that the teacher is in fact fulfilling an important goal of helping students to learn how to think critically and discuss differences in opinion in a cordial and mutually beneficial way. In the absence of a policy that explicitly encourages such an approach, a teacher may feel hesitant to take on the challenge that an open and honest approach to this subject entails.

The proposed policy thus serves “the clear secular intent of enhancing the effectiveness of science instruction,” as the court in Edwards suggested it should.

In summary, I believe that a careful review of the legal implications of this policy would reveal that it is fully consistent with state educational requirements, and that there is no reason to fear that it would violate any constitutional restrictions.

At the same time, I would like to address a third consideration, namely, even if a careful review of the law produces no reason to think the policy contravenes any legal principles, what about the risk that someone will file suit anyway. Isn’t that a risk?

Candidly, I have to admit that if someone pays the filing fee at the courthouse, they have the right to file a lawsuit. And I have seen a lot of discussion predicting that such a suit will be filed. But I can report from other cases that lawsuits typically result from interest groups that believe they have a reasonable chance of success. In Ohio, for example, where the State Board of Education unanimously adopted a policy that favored a curriculum standard requiring students to be able to identify the arguments for and against the Darwinian theory of evolution, no lawsuit was filed. And in Cobb County, Georgia, where there was a lawsuit filed over a textbook disclaimer, the ACLU looked at a similar “teach the controversy” resolution passed by the Board and declined to add that claim to the lawsuit they had already filed.

I can also state that there are a variety of organizations who are committed to open discussion in this area and who I believe would agree to defend the Board’s position if it were to adopt this policy. I personally would volunteer to assist the Board in identifying such counsel.

I should also say a word about permitting threats of litigation to dictate Board policy. It seems to me prudent to avoid unnecessary litigation, and some things may appear too risky. On the other hand, if the Board is convinced that what it wants to do is the right thing to do, it should not permit the mere threat of litigation to become the final arbiter of policies designed to promote the education of the students, parents and citizens whom the Board was elected to serve.

David K. DeWolf

Senior Fellow, Center for Science and Culture
David K. DeWolf is a Professor of Law at Gonzaga School of Law in Spokane, Washington and a Senior Fellow at Discovery Institute's Center for Science and Culture. A graduate of Stanford University and Yale Law School, Professor DeWolf has clerked for the Honorable Stephen Bistline of the Idaho Supreme Court. He has written a briefing book for public school administrators, Teaching the Controversy: Darwinism, Design and the Public School Curriculum.