Friday, November 25, 2005
Taking a Constitutional
All this wrangling over whether ID constitutes "religion" may, however, be beside the point. After all, although public schools cannot promote or advance or endorse or teach the truth of any religion, they are perfectly free to teach about religion as much as they want. They can teach about Christianity, about Judaism, about Zoroastrianism, and about Raelianism. Not only can they teach about religion, but they should teach about religion, and they do not teach about religion nearly enough. So, if public schools can teach about religion, why shouldn’t they be able to teach about ID? To some degree they certainly can. For example, if a public school chose to teach about the ID movement in a current affairs class, or about the philosophical claims of ID in a philosophy of science class, or about the truth claims of ID in a comparative religion class, most likely these choices would pose no constitutional problem at all. (p. 9)Beckwith has attempted to use the case of Edwards v. Aguillard to support the teaching of ID because, according to Beckwith, ID is historically and textually distinguishable from Genesis’s accounts and, therefore, from creation science, and because the Supreme Court in Edwards recognized that teaching scientific alternatives to evolution might be legitimate if there was a secular purpose. Wexler’s discussion of these claims is particularly useful.
Far from arguing that teaching ID is unconstitutional simply because it has some historical connection to the long-standing controversy over evolution, my argument rather is that under the Supreme Court’s endorsement test, singling out evolution from all the topics in the school curriculum for reform by teaching students a purportedly scientific critique of evolution that has no support within the scientific community will likely be understood by a reasonable observer as continuing the long tradition of trying to reform the school curriculum to promote a religious belief. (p. 12)
There may be some areas of law in which a party may be able to make small adjustments to its practices to fall outside the letter of a legal prohibition, but constitutional law, and certainly First Amendment law, is not one of them. For better or for worse, the Court has created an Establishment Clause doctrine that requires courts to use common sense to figure out what message the government sends through its actions. ... As the Supreme Court has made clear, one of the most important elements of this context is the practice’s historical background, which in the case of ID, means the entire history of religious opposition to evolution. (p. 12-13)
As to whether Edwards would allow ID to be taught if a secular purpose could be advanced, Wexler first notes:
[A] secular purpose is a necessary condition for a policy’s constitutionality, it is not a sufficient one. A statute or regulation or any other form of government action may be unconstitutional, even though it is animated by a secular purpose, if it advances or promotes or endorses religion. ... Second, Edwards clearly demonstrates that, at least in the area of teaching evolution in the public schools, the Court will not accept uncritically the government’s recitation of a secular purpose. Instead, the Court . . . will examine the actual relationship between the means of the policy and the purported secular goal of the policy to test whether that purported secular goal is in fact the real purpose underlying the policy.
The remainder of the article deals at length with Beckwith’s four suggestions for valid secular purposes:
1) to introduce students to an important new body of scholarship;
2) to "enhance and protect the academic freedom of teachers and students" who support ID or disagree with evolution;
3) to erase the perception that the curriculum favors, or endorses, an irreligious point of view; and
4) to maintain neutrality between religious belief and non-belief.
Mr. Thompson [the President and Chief Counsel of the Thomas More Law Center] recently cited language from a legal guidebook written by Discovery Institute Fellows in 1999 suggesting that it somehow sanctioned Dover's policy on intelligent design. But Mr. Thompson cited the language of the guidebook out of context. The guidebook focused on supporting teachers who wanted to teach about intelligent design, not on the defensibility of requiring teachers to teach about intelligent design. This is a crucial distinction. Indeed, the guidebook clearly states that "to summarize, the safest course is one in which a school board permits [not "requires"] a biology teacher to teach the full range of scientific theories about origins." Discovery Institute's central concern [is] protecting the academic freedom of teachers . . . Nowhere did it suggest that a school board would be on legally safe ground to require unwilling teachers to address intelligent design.
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