Friday, November 25, 2005


Taking a Constitutional

Jay D. Wexler, Associate Professor, Boston University School of Law, has had a running battle with Baylor University professor Francis J. Beckwith over the constitutionality of teaching ID in public school science classes. The Panda’s Thumb has an account of a debate they had at the Harvard Federalist Society.
Wexler has an article coming out soon in the Washington University Law Quarterly. A copy of the working paper can be previewed (in pdf format) from The Boston University School of Law Working Paper Series or The Social Science Research Network Electronic Paper Collection.
It appears to be a good article and not just because Wexler agrees with my position often stated on

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.
Wexler, of course, did not have the benefit of Barbara Forrest’s testimony in the Dover case, showing just that sort of connection between creation science and ID, through the changes made in Of Pandas and People right after the decision in Edwards, but, to Wexler, that is ultimately irrelevant because he believes that that schools are not "barred from teaching any subject or theory that bears some historical connection to religion":

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)

This does not mean that Forrest’s efforts were constitutionally wasted, however:

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)
Wexler just feels that ID’s load was heavy enough to prevent it from crossing the finish line of constitutionality even before Forrest added that brick.

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.

Of course, this practice of questioning the truthfulness of legislators when writing statements of legislative intent has been vehemently attacked by Justice Scalia, in his dissent in Edwards and elsewhere. Should Justice Scalia’s view be adopted and extended to its logical conclusion, the only bar on the right of the majority in a legislature to write religious doctrine into law would be the limit of the individual legislator’s imagination in coming up with a pretense of a secular purpose.

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.

He saves a separate section to specifically discuss one claim by Beckwith: that public school teachers have some limited First Amendment academic freedom rights to teach ID in addition to teaching the prescribed biology curriculum (see pp. 27-31). This may prove particularly important based on the Discovery Institute’s reaction to the Dover trial, that I previously discussed. In an article responding to criticism of the DI by the Thomas More Law Center, the DI revealed the shape of their future strategy for crowbarring ID into public schools:

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.
It is pretty clear that, if the DI had its way, it would have individual teachers surreptitiously adding ID to the biology curriculum while the school district and board retained at least superficial (if not credible) deniability. Then the Board would only have to make sure that the teachers it hired were of a mind to take such an opportunity. If I were a biology teacher in a district where evolution is controversial, and didn't have tenure, I’d be reading that section of Wexler’s article very carefully.

One small thing, my name is Beckwith, not Beckworth.

My sincere apologies for the (now corrected) typos. Or perhaps I should call them "thinkos", since I got the spelling right the first time it appeared.
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