Friday, January 14, 2005

Evolution Stickers, the Constitution, and Critical Thinking

Yesterday a federal district judge ruled that a disclaimer sticker that was placed on all Cobb County, Georgia high school biology textbooks was ruled unconstitutional as a violation of the First Amendment’s Establishment Clause. You can read press reports, here, here, and here, and view the entire opinion at this link (Hat tip to How Appealing, who, to my constant amazement, manages to have all the links to relevant court opinions as soon as they are physically available).
At first glance I have to admit I was a bit skeptical about the holding. The "disclaimer" seemed to me to be relatively benign as all it says is:

This textbook contains material on evolution. Evolution is a theory, not a fact,
regarding the origin of living things. This material should be approached with
an open mind, studied carefully, and critically considered. Approved by the Cobb
County Board of Education Thursday, March 28, 2002.

As much as I may disagree with the notion behind placing such a sticker on a high school text book, I didn’t really grasp the constitutional implications until I perused the court’s published opinion, which I found to be very carefully written, thoughtful, and above all very persuasive. Before anyone jumps to conclusions about the ultimate outcome, which is one that reasonable minds can, and most certainly will, disagree about, it cannot be said to have been made hastily or in a fly-by-night manner. There was apparently a full blown litigation over this issue, complete with motions, live witnesses, documentary evidence, the whole bit. After all of the work by the lawyers the Judge ruled in a manner that appeared at least to me to be consistent with the precedent and controlling law.

The judge relied, as he properly should have, on the Supreme Court’s 1971 opinion in Lemon v. Kurtzman, 403 U.S. 602 (1971). Commonly referred to as the infamous "Lemon test," it states that a government-sponsored message violates the Establishment Clause of the First Amendment if: (1) it does not have a secular purpose; (2) its principal or primary effect advances or inhibits religion; or (3) it creates an excessive entanglement of the government with religion. See Lemon, 403 U S at 612-13. Applying Lemon, the court first looked to the secular purpose and determined that the School Board had two: first, "the School Board sought to encourage students to engage in critical thinking as it relates to theories of origin;"and second, "given the movement in Cobb County to strengthen teaching on evolution and to make it a mandatory part of the curriculum, the School Board adopted the Sucker to reduce offense to those students and parents whose personal beliefs might conflict with teaching on evolution."

Ultimately, however, it appears the problem rested not with the purpose, which the court agreed after a lengthy analysis was secular, but the effect. Relying on Supreme Court precedent in Capitol Square Review & Advisory Bd v Pipette, 515 U S 753 (1991) and Lynch v Donnelly
465 U S 668 (1984), the court states that its "focus here is not on the particular views or reactions held by the Plaintiffs or the numerous citizens and organizations who wrote to the School Board The Court's focus is on ascertaining the view of a disinterested, reasonable observer." The court concluded that objectively

an informed, reasonable observer would interpret the Sticker to convey a message
of endorsement of religion. That is, the Sticker sends a message to those who
oppose evolution for religious reasons that they are favored members of the
political community, while the Sticker sends a message to those who believe in
evolution that they are political outsiders.

Admittedly, I did not read the sticker that way at all the first time, however, after being made aware of previous cases in which the teaching of evolution and creation science had conflicted (see Edwards v. Aguillard 482 U.S 578 (1987) (striking down state statute that forbid the teaching of evolution in public schools unless "creation science" was also taught); Epperson v. Arkansas, 393 U.S. 97 (1968) (striking down state statute that made it unlawful for teachers to instruct on the Darwinian theory of evolution in public schools); Freiler v Tangilahoa Parish Bd of Educ ., 185 F 3d 337 (5th Cir 1999) (invalidating disclaimer required to be read to students prior to teaching of evolution because the disclaimer had the primary effect of endorsing a particular religious viewpoint) Daniel v Waters, 515 F 2d 485 (6th Cir 1975) (declaring unconstitutional a statute that required a disclaimer to accompany all theories of origin except the Biblical theory of creation and that precluded the teaching of occult or satanical beliefs of human origin); and McLean v Arkansas Bd of Educ., 529 F Supp 1255 (E.D. Ark 1982) (striking down statute that required balanced treatment of creation science and evolution in public schools). I was convinced, as was the judge, that by singling out the specific theory of evolution in the "disclaimer" that the School Board had tipped its hand and reveled that the animosity that prompted the sticker had come, not from people with a genuine interest in seeing impressionable children being required to think critically about complex subject like biology and evolution, but rather by a concerned segment of the population that felt that the teaching of evolution was wrong, anti-religious, and needed to be tempered.

The fact that I agree with the outcome in this instance, doesn’t prevent me from seeing that this was a very close case, that will likely be reviewed by the 11th Circuit Court of Appeals. The school board has tested the limits of the Lemon doctrine, and I think has only barely crossed beyond what the law would otherwise permit. That being said, one of the problems that I have with the case is the School Board's use of the secular policy of advancing critical thinking as a justification for placing the stickers on the books. Critical thinking is certainly something I think ought to be encouraged by all schools, especially at the high school level, however, critical thinking is not a concept that we should hide behind while attempting to impose on others a religious or other agenda that in the long run may only serve to isolate and limit the reach and potential of school children. Children should be exposed to more things, not less and as I have often advocated, the fact that kids are taught A, B, and C at a public or private school in no way precludes parents from teaching C, D, and E at home, or from encouraging them to seek alternative sources of information from houses of worship or other places where they may learn and grow. My problem with the sticker policy is that it appears to be encouraging kids to learn less, not more, and doing so all in the name of what is such a great and wonderful skill, namely, the ability to critically think, analyze information, and question assertions and beliefs.

I concur with the Board that evolution is not a fact, but honestly, neither is the existence of God, or the benefit of religious worship. All three things need to be learned, explored, critically examined, and questioned. And it needs to be done not only while kids are still impressionable and open to new and interesting ideas, but also by adults who share the enormous responsibility of educating children.


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