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Alternative viewpoints about biological origins as taught in public schools.


The teaching of biological origins Fin public schools is an increasingly controversial issue in American education and the courts. The U.S. Supreme Court has declared that proper treatment of origins education is vital to protecting religious freedom. (1) Yet educators often probe the limits of this boundary by creating policies and curricula that sanction the teaching of alternative, or minority viewpoints about biological origins. With various lawsuits over the teaching of origins science in public schools currently proceeding through federal courts, (2) the need is great for clarity over the ability to present alternative viewpoints about biological origins in public schools.

Essentially all public schools today require the teaching of Neo Darwinian evolution, (3) the paradigm currently prevailing in biology for explaining the origin of biological diversity. Legal precedent for requiring the teaching of evolution in public schools appears strong. Teaching evolution may be required regardless of a teacher's religious beliefs, (4) and its teaching cannot be prohibited simply because it conflicts with the religious beliefs of students. (5) One federal district court even held that teaching evidence only supporting evolution neither establishes religion nor violates the free exercise rights of students. (6) Yet many teachers or districts may wish to teach minority views about origins which differ from that of mainstream evolutionary theory. (7) Such districts may contain administrators with a variety of attitudes and policies about teaching these alternative views. This article will conservatively review current law to assess the ability to present (1) creation science, (2) intelligent design theory, or (3) scientific criticisms of evolution, (8) in public school districts which have (a) issued no statements on teaching that view, (b) encouraged teaching that view, or (e) discouraged teaching that view. This article's genera] purpose is not to contend what the law should be, but to realistically assess the current ability to present alternative views about biological origins in public schools.

Of these three viewpoints, the teaching of creation science faces the harshest restrictions because courts have consistently held that teaching creation science establishes religion. The constitutionality of teaching intelligent design theory has not yet been touched by courts. This could soon change as a suit has already been filed challenging the teaching of intelligent design in Dover, Pennsylvania. (9) Teachers in districts which ban the teaching intelligent design would be unable to overcome such a restriction because of the limited degree of academic freedom granted to public school teachers below the university level. However there are currently no judicial restrictions on teaching intelligent design, and teachers in districts with no policy or a favorable policy would currently find freedom to teach intelligent design. Future case decisions could either strengthen or limit the ability to present intelligent design in public schools. Finally, presenting mere scientific evidence which challenges evolution is on the firmest legal ground. If pure scientific criticisms of evolution are taught, the probability of establishing religion is nil, and there are a variety of legal and educational policy arguments supporting teaching students about such scientific controversies.


Before analyzing the ability to teach creation science in public schools, the term must be defined. In 1987, the U.S. Supreme Court found that under an Act passed by the Louisiana State Legislature, "creation science" essentially meant the view that "a supernatural creator was responsible for the creation of humankind." (10). The Court held this to be a religious viewpoint. (11) While this definition takes a broad view of creation science, the common meaning of creation science is probably closer to that employed in Arkansas' "Balanced Treatment for Creation-Science and Evolution-Science Act" of 1981:

Creation-science includes the scientific evidences and related inferences that indicate: (1) Sudden creation of the universe, energy, and life from nothing; (2) The insufficiency of mutation and natural selection in bringing about development of all living kinds from a single organism; (3) Changes only within fixed limits of originally created kinds of plants and animals; (4) Separate ancestry for man and apes; (5) Explanation of the earth's geology by catastrophism, including the occurrence of a worldwide flood; and (6) A relatively recent inception of the earth and living kinds. (12)

Whether teaching young-earth "creation science," or presenting the general creationist view that a "supernatural creator" created life, (13) courts have held these are religious viewpoints and are unconstitutional to teach in public schools. (14)

A school district which has explicitly forbidden the teaching of creation science, either through a general policy or a directive aimed at a particular teacher, has the power to prevent a teacher from teaching creation science. Teacher academic freedom has found some protection at the university level. (15) However, under Hazelwood School District v. Kuhlmeier, a school board or administrators may impose at least "reasonable restrictions" on speech, including teacher speech, in public schools. (16) The Supreme Court has formulated a test where the "question of whether speech of a government employee is constitutionally protected expression ... entails striking a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees." (17) This test was applied by the Fifth Circuit which found "the question of whether a public employee's speech is constitutionally protected turns upon the 'public' or 'private' nature of such speech." (18) Under this rule, the general use of curriculum materials not authorized by the district did not rise to the level of a "public concern" and thus a district has discretion to sanction a teacher for failing to teach according to the curriculum. (19) As the Seventh Circuit wrote, "[t]here is a compelling state interest in the choice and adherence to a suitable curriculum ... [thus] [i]t cannot be left to individual teachers to teach what they please." (20) Courts have consistently held that restrictions upon speech are permissible at least when they are "reasonably related to legitimate pedagogical concerns." (21) A need to prevent offenses under the Establishment Clause could constitute a legitimate pedagogical concern. (22)

Teacher academic freedom to teach creation science was specifically disallowed in Webster v. New Lenox School District No. 122. (23) In Webster, a student complained that junior high school social science teacher Ray Webster had violated the separation of church and state through his in-class instruction. (24) The district's superintendent inquired into Webster s activities, and Webster stated that he had taught creation science, but did not believe that he was advocating religion. (25) The superintendent responded by reminding Webster not to advocate religious beliefs in class, and specifically instructed him to stop teaching creation science. (26) Webster brought suit alleging the district violated his freedom of speech rights, arguing the district should permit him to teach "a nonevolutionary theory of creation." (27)

The trial court in Webster had found that the school district had a "responsibility of ensuring that the Establishment Clause is not violated." (28) On appeal, the Seventh Circuit affirmed that obligation, stating that the impressionable age of junior high students "imposes a heightened responsibility upon the school Board to control the curriculum." (29) The U.S. Supreme Court similarly exhorted school boards in Board of Education v. Pico, where it held "the discretion of ... local school boards must be exercised [in accordance with] the First Amendment." (30) Since the Court in Edwards had held that creation science was religion, the Seventh Circuit found that "[g]iven the school board's important pedagogical real interest in establishing the curriculum. and legitimate concern with possible Establishment Clause violations, the school board's prohibition on the teaching of creation science to junior high students was appropriate." (31) Yet prior to the complaint in Webster, there was no evidence the school district had any policy on teaching creation science. Ray Webster was not prohibited from teaching creation science, however, a student complaint caused the district concern that there might have been religious establishment. The district then enacted a policy prohibiting Webster from teaching creation science. In the absence of such a restriction, teachers who teach creation science are establishing religion and violating the Constitution. Under Webster, school districts have not only the ability to prevent a teacher from teaching creation science, they have the obligation to ensure that religion is not established. Districts thus may be required to ensure that creation science is not taught. Once such a restriction is enacted, Webster indicates that a school district which is concerned about Establishment Clause violations has the power to prevent a teacher from teaching creation science.

Ray Webster's freedom of speech claims were unable to trump his district's prerogative to prevent religious establishment in classrooms. Ironically, Webster may have been partial to dicta from Epperson v. Arkansas, where the U.S. Supreme Court supported a teacher's right to teach evolution: "It is much too late to argue that the State may impose upon the teachers in its, schools any conditions that it chooses, however restrictive they may be of constitutional guarantees." (32) Epperson was handed down in 1968, and as noted, later decisions limited the academic freedom of public school teachers. However, in a different district, a teacher like Webster may find himself working under administrators favorable to teaching creation science who might permit his actions. Such administrators may be unaware courts have held creation science is religion. Alternatively, these administrators may be informed, but yet disagree with the view that creation science is religion and believe, as Justice Scalia wrote, that creation science is "a collection of scientific "data supporting the theory that the physical universe and life within it appeared suddenly and have not changed substantially since appearing." (33) Under such administrators, a district might pass resolutions, permitting the teaching of creation science, or at east create a non-hostile climate towards creation science where it may be taught. Teachers might then be temporarily immune from immediate sanction from administrators if a student complains. However, if the student brings suit, the result likely would be an enjoinment against the district and teacher from teaching creation science.

A district with administrators favorable towards teaching creation science might also choose to quietly permit creation science to be, taught, simply taking no action nor enacting any sort of policy. The Lemon test has been the common judicial vehicle to determine the constitutionality of teaching creation science. (34) Originally the Lemon test was formulated to deal with statutes, not with individual actions of a state employee:

First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, finally, the statute must not foster "an excessive government entanglement with religion." (35)

The district court in Webster did not apply the Lemon test because the ease did 'not involve any statute which can be tested under the three-prong Lemon test." (36) However, the court found that "[i]f a teacher in a public school uses religion and teaches religious beliefs or espouses theories clearly based on religious underpinnings, [religion is established] as if a statute ordered the teacher to teach religious theories such as the statutes in Edwards did." (37) Given the obligations imposed upon a district to prevent violations of the Establishment Clause, there is a valid claim if a student complains that religion is being advanced in the classroom, and the district does nothing. In the absence of a policy prohibiting the teaching of creation science, a suit likely would result in enjoinment against the district to permit teaching creation science. (38)

If Lemon were applied to a teacher's, or district's actions, its first prong would require a secular purpose behind the motivation for teaching that origins viewpoint. If a teacher or district sincerely believes that creation science is a genuine scientific theory, one might suspect there is a better chance of passing Lemon. This attitude may have characterized the genuine motivations of Mr. Webster, who believed that in teaching creation science he was merely critiquing scientific theories taught in the textbook. Webster merely wanted to encourage his students in "developing an open mind." (39) However, because-creation science was declared religion at the highest level, teaching it under any purpose still violates Lemon's "effect" prong. (40) Thus in Webster, teacher or district motivations for teaching creation science were never relevant.

If a school board passed a formal resolution or amended its curriculum to allow for the teaching of creation science, such action would attract the attention of parents and students, and could result in an immediate complaint that would strike down the policy as a facial violation of the Establishment Clause. In the absence of any district mandate, as far as the district is concerned, teachers would be free to teach creation science. However, a teacher who exercised that freedom would be violating the First Amendment. A student complaint would result in either an enforceable policy from the district prohibiting the teaching of creation science, or a suit ultimately enjoining the teacher, and the district from teaching creation science.


No court has yet ruled on whether or not teaching intelligent design would violate the First Amendment. As noted, a suit has been filed against teaching intelligent design in Dover, Pennsylvania; (41) however, as of the submission of this article, no decision has been reached. Teachers or districts that currently teach intelligent design do so at their own discretion, but they are breaking the law of no court because no decisions have yet been issued.

Intelligent design is not a completely new idea, (42) though it has recently been reformulated as a technical argument which holds that certain features of the universe and of living things are best explained by intelligent causation, not an undirected process such as natural selection. (43) William Dembski, a leading theorist of the intelligent design movement, calls intelligent design "a theory of information'" where "information becomes a reliable indicator of design as well as a proper object for scientific investigation." (44) Design proponent Stephen Meyer characterizes the evidence for design as empirically based, noting that "in all cases where we know the causal origin of 'high information content,' experience has shown that intelligent design played a causal role. (45) Intelligent design proponents typically accept the basic principles of Darwinian evolution (i.e. that natural selection acts upon variation in populations of organisms). (46) However, design theorists generally would agree that evolutionary theory is best applied to account for small-scale microevolutionary changes rather than the origin of higher taxa and complex biological features. (47) Intelligent design is thus a theory competing with evolutionary theory to explain the origin of biological complexity. Intelligent design is currently a minority viewpoint, although it has gained acceptance or sympathy with a small number of scientists and other scholars.

The Nature of Intelligent Design Theory

Many critics of intelligent design have argued that it is simply creationism. (48) In the non-legal context, intelligent design theory seems to be receiving more secular publications than did traditional creationism. (49) The secular press has also attributed to intelligent design a higher level of academic legitimacy, as illustrated in a New York Times comparison:

[E]volutionists find themselves arrayed not against traditional creationism, with its roots in biblical literalism, but against a more sophisticated idea: the intelligent design theory. Proponents of this theory, led by a group of academics and intellectuals and including some biblical creationists, accept that the earth is billions of years old, not the thousands of years suggested by a literal reading of the Bible. (50)

William Dembski contends that the point of intelligent design theory is not to propose supernatural explanations, for "the contrast between natural and supernatural causes is the wrong contrast. The proper contrast is between undirected natural causes on the one hand and intelligent causes on the other." (51) Dembski explains that while intelligent causes are detectable, the theory cannot identify the designer because of the epistemological limits of scientific inquiry: Intelligent design is modest in what it attributes to the designing intelligence responsible for the specified complexity in nature. For instance, design theorists recognize that the nature, moral character and purposes of this intelligence lie beyond the competence of science and must be left to religion and philosophy. (52)

Dembski emphasizes that "intelligent design nowhere attempts to identify the intelligent cause responsible for the design in nature," (53) and similarly claims that intelligent design has no pre-commitment to any view on the age of the earth. (54) Similarly, Michael Behe explains that no knowledge of the identity of the designer is necessary to infer design:

The conclusion that something was designed can be made quite independently of knowledge of the designer. As a matter of procedure, the design must first be apprehended before there can be any further question about the designer. The inference to design can be held with all the firmness that is possible in this world, without knowing anything about the designer. (55)

It is doubtful that design proponents such as Behe see the theory as preaching supernatural design for Behe acknowledges that intelligent design theory leaves open the possibility that the designer's identity could contradict his own personal religious beliefs:

Although intelligent design fits comfortably with a belief in God, it doesn't require it, because the scientific theory doesn't tell you who the designer is. While most people--including myself will think the designer is God, some people might think that the designer was a space alien or something odd like that. (56)

Despite such statements, critics have alleged design proponents are somehow trying to hide their secret belief that the designer is the God of the Bible by constructing some vague or deceitful theory of origins. (57) Dembski, also openly a Christian, (58) explicitly concurs with Behe that under the theory, the designer could contradict his own religious beliefs, and reiterates that intelligent design theory cannot identify the designer simply because of the limitations of what can be inferred from the data:

ID is not an interventionist theory. Its only commitment is that the design in the world be empirically detectable. All the design could therefore have emerged through a cosmic evolutionary process that started with the Big Bang. What's more, the designer need not be a deity. It could be an extraterrestrial or a telic process inherent in the universe. ID has no doctrine of creation. Scott and Branch at best could argue that many of the ID proponents are religious believers in a deity, but that has no bearing on the content of the theory. As for being "vague" about what happened and when, that is utterly misleading.... This is not a matter of being vague but rather of not pretending to knowledge that we don't have. (59)

Design proponents thus offer a principled rationale for why their theory does not posit an explicitly supernatural intelligence or a supernatural creator: to do so would go beyond the limits of what can be inferred through the scientific method.

Another crucial characteristic of intelligent design theory is its epistemological basis. Using scientific creationism as a contrast, Dembski notes that intelligent design attempts to rely solely upon the empirical data, and not religious texts:

The most obvious difference is that scientific creationism has prior religious commitments whereas intelligent design does not.... Intelligent design ... has no prior religious commitments and interprets the data of science on generally accepted scientific principles. In particular, intelligent design does not depend on the biblical account of creation. (60)

The design theorists' critique of Darwinism begins with Darwinism's failure as an empirically adequate scientific theory, not with its supposed incompatibility with some system of religious belief. This point is vital to keep in mind in assessing intelligent design's contribution to the creation--evolution controversy. Critiques of Darwinism by creationists have tended to conflate science and theology, making it unclear whether Darwinism fails strictly as a scientific theory or whether it must be rejected because it is theologically unacceptable. Design theorists refuse to make this a Bible-science controversy. Their critique of Darwinism is not based upon any supposed incompatibility between Christian revelation and Darwinism. (61)

Thus, according to design theorists, the inference to design is not based upon religious authority or a religious rejection of Darwinian evolution. David K. DeWolf et al. characterize the rationale for inferring design through four postulates, which are grounded in observations and empirical data:

(1) High information content (or specified complexity) and irreducible complexity constitute strong indicators or hallmarks of past intelligent design.

(2) Biological systems have a high information content (or specified complexity) and utilize subsystems that manifest irreducible complexity.

(3) Naturalistic mechanisms or undirected causes do not suffice to explain the origin of information (specified complexity) or irreducible complexity.

(4) Therefore, design theory constitutes the best explanation for the origin of information and irreducible complexity in biological systems. (62)

This argument contains no religious premises nor references to religious authority. William Dembski elaborates on how intelligent design theory operates:

Intelligent design begins with data that scientists observe in the laboratory and nature, identifies in them patterns known to signal intelligent causes and thereby ascertains whether a phenomenon was designed. For design theorists, the conclusion of design constitutes an inference from data, not a deduction from religious authority. (63)

Natural causes are too stupid to keep pace with intelligent causes. Intelligent design theory provides a rigorous scientific demonstration of this long-standing intuition. Let me stress, the complexity-specification criterion is not a principle that comes to us demanding our unexamined acceptance--it is not an article of faith. Rather it is the outcome of a careful and sustained argument about the precise interrelationships between necessity, chance and design. (64)

Design proponents seem to make good on these claims to infer design without appealing to religious authority. (65) In a variety of publications, most strikingly his peer-reviewed Cambridge University Press book entitled The Design Inference, (66) Dembski lays out a detailed statistical inductive argument for how one may detect design. The book appears to be an attempt to make the inference to design a scientific exercise, and it makes no mention of reliance upon religious authority nor appeals to faith nor supernatural intervention.

Freedom to Teach Intelligent Design

Legal scholars disagree on what courts will hold when the teaching of intelligent design is challenged. Those who believe the specific nature of intelligent design theory should matter most find that "[u]nlike the creationism rejected by the court in McLean and the Supreme Court in Edwards, [intelligent design] cannot be repudiated as a political endeavor by Christian fundamentalists to indoctrinate schoolchildren to accept biblical literalism instead of science." (67) Others believe that a more general constitutional analysis might observe intelligent design from a distance and conclude "intelligent design theory should be considered a religion ... [simply] because its basic tenet ... is at the core of the notion of religion as understood in this country since its founding." (68) "[A] court--following Edwards and invoking some combination of the purpose, effect, and endorsement inquiries--might find that teaching intelligent design would send the wrong message to students about religion and thus establish religion in violation of the First Amendment." (69)

While it is impossible to predict exactly what courts will hold, commentators from both sides agree that adjudicating intelligent design will require courts to define science and religion. (70) If courts define science "as a way of knowing," (71) defining science by its methods of obtaining knowledge, then intelligent design, with its empirically-based, non-religious methodology, would qualify as science. Although intelligent design does make propositions which, as Wexler writes, are at "the core or the notion of religion," it does so using the scientific method, not reliance upon religious methods of "knowing" like faith or divine revelation. When applying Lemon, "if a theory has scientific value and evidence to support it, its primary effect would be to advance knowledge of the natural world, not to advance religion ... [w]hether it coincidentally advances [or inhibits] religion should not matter." (72) For the purposes of origins science education law, courts must recognize science and religion by the methods they obtain knowledge. If intelligent design cannot be taught because its propositions are "religious," then neither the Big Bang theory nor evolution may be taught, which also are based upon scientific "ways of knowing" but yet also make propositions with unavoidable religious implications. (73) Such an unacceptable result will require courts to look beyond mere propositions in defining science and religion and determine whether or not a claim is science or religion by analyzing the methodology by which the claim is being made. Under this sort of test, intelligent design would stand as constitutionally acceptable science because it makes its claims via the scientific method--not via religious methods. The primary effect of teaching intelligent design would thus be to advance the methods of science, not a religious viewpoint. However, this opinion on the legitimacy of teaching intelligent design is speculative, and it is difficult to predict precisely what courts will hold.

If intelligent design is found to be religion, it would stand in an identical legal position to the current status of creation science. Districts would then be under an obligation to prevent Establishment Clause violations caused by teaching intelligent design. Teachers who teach it would probably be asked to stop by administrators. If administrators did not take action, a student who brought suit could have the teaching of intelligent design stopped. On the other hand, if intelligent design is found to be science, and not religion, then it may be legally treated akin to "teaching the controversy," as discussed in Part IV.

In the absence of any rulings on teaching intelligent design, Establishment Clause violations are still possible if it is taught improperly. Firstly, intent matters for those teaching intelligent design. Edwards requires that statutes about teaching origins science must have "the clear secular intent of enhancing the effectiveness of science instruction." (74) Similarly, a teacher, or district presenting intelligent design must genuinely believe that it is a scientific concept, and must use scientific evidence and reasoning to back the claims. Many such teachers (or school board members) might also belong to religions which teach that life was designed. Even with genuine secular motives, they may have a difficult time convincing their superiors, or courts, that secular pedagogical concerns dominated their motivations. Teachers in such a position do not necessarily violate the First Amendment because government actions based upon neutral, secular criteria do not have the primary effect of advancing religion, even if religion is incidentally or coincidentally advanced. In Agostini v. Felton, (75) the Supreme Court held that public employees who taught remedial classes in secular subjects in religious schools did not have the primary effect of advancing religion. Because "[t]he services are available to all children [in private schools] who meet the Act's eligibility requirements, no matter what their religious beliefs or where they go to school" the program would not "give aid recipients any incentive to modify their religious beliefs or practices in order to obtain those services." (76) Yet there is no doubt that many particular religious schools benefited from having state employees teaching on the campus under this program. Thus state action which coincidentally advances religion does not necessarily rise to a level which fails the Lemon test if "allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis." (77) An analogous set of criteria which is neutral, secular, and neither favors nor disfavors religion, and is equally available to all, is the scientific method. The scientific method is used by individuals of all creeds and beliefs to obtain knowledge theoretically available to all. In its ideal form, the scientific method carries no religious or philosophical presuppositions and thus does not inhibit or advance religion. To repeat what one commentator noted, "if a theory has scientific value and evidence to support it, its primary effect would be to advance knowledge of the natural world[;] ... [w]hether it coincidentally advances religion should not matter." (78)

Teaching a bona fide scientific theory which has religious implications thus does not have the primary effect of advancing religion. However, those who teach intelligent design still must have the secular motive of desiring to increase the effectiveness of science instruction. A predominating purpose to indoctrinate students with religious views is not a permissible motive. (79) Those who sanction the teaching of intelligent design should thoroughly research and understand the scientific debate over biological origins. This would ensure that if controversy arises, educators can explain the scientific basis for intelligent design and how teaching it enhances the curriculum. Presenting arguments from scientific critics of design would provide further assurances that the purpose is to educate students about a scientific subject, and not indoctrinate them in only one side of the issue. A deep understanding, appreciation, and presentation of all sides of the scientific issues at stake provides the best assurance that those teaching intelligent design will demonstrate to courts that the motive was to increase the effectiveness of science instruction.

A second consideration in dealing with establishment concerns is proper treatment of the inevitable question of the designer's identity. To ensure that religion is not advocated, educators must recognize that discussing the identity of the designer is a religious topic which is inappropriate for a public school classroom. As noted, intelligent design theory does not purport to identify the designer. While it may seem counterintuitive to state that on one hand one can know that life was designed, but then on the other hand not be able to identify the designer, (80) teachers do not have to pretend that the identity of the designer is not a question of great human interest. Dealing with this issue properly presents a unique opportunity for students to learn about the secular topic of the nature of scientific inquiry and the epistemological limitations of science. (81) To demonstrate why the identity of the designer is beyond the empirical bounds of scientific knowledge, it would be safest to explain that "design theorists recognize that the nature, moral character and purposes of this intelligence lie beyond the competence of science and must be left to religion and philosophy." (82) It science is a particular way of knowing where "[explanations that cannot be based upon empirical evidence are not a part of science" (83) then science's methods of "knowing" cannot reveal the designer's identity. The issue of the identity of the designer is simply beyond the scope of the empirical bounds of scientific investigation. Students could be referred to their families or leaders of their faith for further inquiry into the identity of the designer.

Despite these considerations, intelligent design can be taught so as to not violate the Establishment Clause. All that is needed is to emphasize the scientific basis of intelligent design theory, and handle issues related to the identity of the designer in a responsible manner. A safe approach may be found in the pro-intelligent design textbook, Of Pandas and People:

If science is based upon experience, then science tells us the message encoded in DNA must have originated from an intelligent cause. But what kind of intelligent agent was it? On its own, science cannot answer this question; it must leave it to religion and philosophy. But that should not prevent science from acknowledging evidences for an intelligent cause origin wherever they may exist. This is no different, really, than if we discovered life did result from natural causes. We still would not know, from science, if the natural cause was all that was involved, or if the ultimate explanation was beyond nature, and using the natural cause. (84)

We should recognize, however, that if we go further, and conclude that the intelligence responsible for biological origins is outside the universe (supernatural) or within it, we do so without the help of science. (85)

Adopting this approach would explain to students that intelligent design merely implies "the message encoded in DNA must have originated from an intelligent cause." (86) To identify the designer both departs from knowledge gained by scientific inquiry and provides theological answers which are constitutionally impermissible for public schools. Making these points clear to students would do much to remove any risk of Establishment Clause violations when teaching intelligent design.

Some students may feel their religious rights are being violated, or that teaching intelligent design somehow endorses religion. At least one federal circuit has disavowed a "subjective test" for endorsement of religious views, and retained an objective test where the government only endorses religion if it would appear as such to a reasonable observer. (87) In Brown v. Woodlands Joint Unified School District, the Ninth Circuit held that performing chants similar to those practiced in the Wiccan religion would not endorse religion, and even less so would merely reading about the viewpoint in a book. (88) Otherwise, "[i]f an Establishment Clause violation arose each time a student believed that a school practice either advanced or disapproved of a religion, school curricula would be reduced to the lowest common denominator, permitting each student to become a 'curriculum review committee' unto himself or herself." (89) In a similar case, the Seventh Circuit held that when teaching in public schools, "[t]he Establishment Clause is not violated because government action happens to coincide or harmonize with the tenets of some or all religions." (90) Similarly, merely learning about intelligent design does not mean that students must accept it, or that students must accept religions which contain a doctrine of creation. (91) If students feel their constitutional rights have been violated, then it should be explained that intelligent design does not necessarily lead to any particular religious viewpoint. Just as guidebooks for teaching evolution recommend explaining to students that religious people can believe in evolution, (92) student discomfort might be allayed by explaining that non-religious scholars have also accepted intelligent design. (93) To avoid concerns over endorsement of Christian fundamentalism or creationism, (94) teachers also might explicitly state that intelligent design does not necessarily lead to creationism, or Christianity. (95) The approach taken in Of Pandas and People could again defray the possibility of endorsement:

The idea that life had an intelligent source is hardly unique to Christian fundamentalism. Advocates of design have included not only Christians and other religious theists, but pantheists, Greek and Enlightenment philosophers and now include many modern scientists who describe themselves as religiously agnostic. Moreover, the concept of design implies absolutely nothing about beliefs normally associated with Christian fundamentalism, such as a young earth, a global flood, or even the existence of the Christian God. All it implies is that life had an intelligent source. (96)

Ironically, without judicial approval of teaching intelligent design, districts which explicitly require it to be taught might jeopardize teachers seeking to teach intelligent design more so than would districts that refrain from enacting any policy. If a district requires that all teachers present intelligent design, then those who misunderstand the theory's scientific basis might fail to focus on the scientific merits of intelligent design and dip into religious discussions. (97) To prevent further establishment violations, a district would have two options: it could train teachers in how to teach intelligent design without violating the Establishment Clause and monitor them, or it could simply ban the teaching of intelligent design. Under the first option, districts must not create scenarios where too much oversight is required. In some cases dealing with Lemon's "entanglement" prong, analysis has focused on "administrative entanglement" where a government program must not require excessive monitoring to ensure it does not violate the Establishment Clause. (98) This has been said to create a "damned-if-you-do-damned-if-you-don't dilemma" where "[t]he very steps the government sometimes must take to assure that programs are neutral toward religion (so as to pass the effect prong) entail monitoring condemned under the entanglement prong." (99) Nonetheless these concerns are real. A policy mandating the teaching of intelligent design, but requiring teachers to undergo extensive district-sponsored training and monitoring to teach it properly, might result in excessive entanglement. (100) The Ninth Circuit, however, refused to extend entanglement inquiry to monitoring politically or religiously divisive issues in public schools because this should only be a consideration in cases dealing with government aid to religious schools. (101) Furthermore, districts do not need to fear a one-time review (or, presumably, training seminar) of a curriculum because that does not rise to unconstitutional entanglement. (102) Yet, a district fearing lawsuits might still choose the second option: prohibiting the teaching of intelligent design. In many districts there is "an entrenched culture among [good] public servants ... that says religion causes trouble ... [and the] way to avoid trouble, the theory goes, is to avoid religion." (103) Once complaints over establishment are made, a district might decide it is safest to reverse policy and prohibit teaching intelligent design. Of course a third option is for the district to simply repeal the policy requiring the teaching of intelligent design and then have no policy. This would put the district in a safer position; however, teachers who continue to teach intelligent design would do so at their own risk. Those who continue to teach it improperly would again put the district at risk of a judgment.

Establishment concerns could be alleviated if intelligent design proponents create a curriculum specifically designed to help teachers understand how to teach intelligent design without establishing religion. Given the scientific underpinnings of intelligent design, such a curriculum is feasible. Indeed, evolution-advocacy groups give seminars and guidebooks on how to safely teach evolution without violating students' religious rights. (104) Conceivably, similar training could provide guidelines for teachers in districts requiring the teaching of intelligent design on how to teach intelligent design without violating the Establishment Clause. Adequate training for teachers could then remove the need for further oversight and alleviate concerns about excessive entanglement. (105)

To reiterate, the purpose of this article is not to contend what the law should be, but to give an account of current law. Similar to a teacher who teaches intelligent design, a district requiring the teaching of intelligent design would have to justify such a policy on non-religious grounds or else it will fail the first prong of Lemon. In Bowers v. Hardwick, four dissenting justices agreed that "[t]he legitimacy of secular legislation depends ... on whether the State can advance some justification for its law beyond its conformity to religious doctrine." (106) Despite such a low standard for acceptability, the Supreme Court has been unafraid to find religious motives for legislators who had cited secular purposes for laws. According to the Court, articulations of purpose must "be sincere and not a sham." (107) Because of the history of religious activism surrounding the teaching of origins science, districts may have to overcome charges that a policy requiring the teaching of intelligent design has religious motives. (108) The Supreme Court has given clues about what sort of motivations and purposes are constitutional. In Edwards, the Court wrote that the acceptable purpose to "maximize the comprehensiveness and effectiveness of science instruction" could be recognized if a legislature "encouraged the teaching of all scientific theories about the origins of humankind." (109) Taking this statement at face value, a policy which requires the teaching of just one, or some theories about origins, will raise concern. Courts may insist such a policy implicates a purpose to teach only theories of origins which comport with certain religious viewpoints. For this reason "balanced treatment" laws requiring the teaching of creationism whenever evolution was taught had the unconstitutional religious purpose of "counterbalancing [evolution's] teaching at every turn." (110) Requiring students to learn about many scientific views on biological origins, including intelligent design and other viewpoints, could alleviate concerns about improper motives. (111)

One commentator suggests two secular purposes for requiring the teaching of intelligent design could include promoting academic freedom or critical thinking. (112) Under Edwards, a policy justifying the teaching of intelligent design under "academic freedom" would be suspect unless teachers had previously been prevented from teaching intelligent design. (113) Critical thinking is a more acceptable motive, which could be justified under the Santorum Amendment (see Part IV for a more detailed discussion). Indeed, at least one court has found that fostering critical thinking provides a "clearly secular purpose" in the context of the teaching of origins science. (114)

Court-imposed restrictions on how districts can teach biological origins might frustrate administrators or school boards who genuinely believe that teaching intelligent design theory will have secular benefits for the science curriculum. Such authorities may complain they are being treated unfairly if they cannot enact policies partially undergirded by religious concerns, but are emplaced primarily out of a genuine secular desire to increase the effectiveness or science instruction. Justice Scalia was sensitive to such a scenario in his dissent in Edwards. Argued Scalia, "political activism by the religiously motivated is part of our heritage" and that although "[t]oday's religious activism may give us the Balanced Treatment Act, ... yesterday's resulted in the abolition of slavery, and tomorrow's may bring relief for famine victims." (115) Similarly, some administrators might desire that students learn both evolutionary and non-evolutionary scientific views about biological origins so students can make informed decisions about religious beliefs. Yet, these same administrators might simultaneously believe that teaching intelligent design would have the genuine secular benefits of increasing the scientific Knowledge, understanding of the nature of science, and critical thinking skills of students. Policies requiring that intelligent design be taught sit on firmest ground when policymakers rely upon their genuine secular concerns for the science curriculum. The extent to which secular purposes must predominate over religious purposes may be unsettled by courts. However, teachers and administrators will be safest when they emphasize their genuine secular motives behind their policies.

Taking the Supreme Court's ruling in Edwards at face value, the policy a district or administrator should enact is to require the teaching of "all scientific theories" about origins. (116) It is difficult to imagine what "all" these scientific theories might be, but assuming that intelligent design is science, this would at least include intelligent design and evolutionary theory. Such a policy could become ineffective if, absent a legal ruling, some teachers do not believe intelligent design is "scientific" and thus do not feel compelled to teach the theory. Furthermore, providing the ability to teach "all scientific theories" would give teachers no more power than they currently have under Edwards, increasing suspicions about motive. (117) Edwards has thus apparently created a "catch-22" situation where districts' hands are tied: they cannot enact policies affirming rights teachers already have (i.e. to teach all scientific theories, which might include intelligent design), but to grant rights beyond what courts have explicitly permitted (i.e. to require the teaching of intelligent design) would be viewed as religiously motivated. Obviously some districts currently require only the teaching of evolution. Courts have upheld such policies, asserting that evolution-only policies do not raise establishment concerns because evolution "simply means that higher life forms evolved from lower ones." (118) Under such logic, districts seeking to permit the teaching of intelligent design should be able to argue that intelligent design is not religion and "simply means some life forms arose through the action of intelligence." Additionally, while Wright upheld the one-sided teaching of evolution, (119) it did so on the basis that the one-sidedness came from the presentation of a textbook, not a formal district policy or state law. Another permissible basis under which intelligent design may be taught is if a school board enacts no policy but simply adopts a textbook presenting intelligent design. (120) A policy requiring the teaching of both evolution and intelligent design, enacted to enhance critical thinking, and employing a textbook presenting both theories in a compelling and accurate manner, could have the "clear secular intent of enhancing the effectiveness of science instruction." (121) Such a policy would still be subject to judicial review to confirm if intelligent design is indeed science.

A safer policy might facially appear to be for a district to leave the decision up to teachers and state that they "may" teach intelligent design if they so choose. This policy might also bring trouble. A policy stating that a teacher "may" teach intelligent design would undergo the same scrutinizing of purpose as a policy stating a teacher "must" teach intelligent design. Such an explicit policy might appear religiously motivated if it protects only one scientific theory or concept that a teacher "may" teach. The policy might appear safer if implicit, perhaps coming from an individual administrator. For example, if a teacher receives permission from his principal that he "may" teach intelligent design, there would be fewer worries about enacting a specific policy that appears religiously motivated. However, if a suit were brought, discovery would bring this conversation granting permission to light. Nothing would prevent a policy stating teachers "may" teach intelligent design from facing the same concerns about impermissible purpose raised by a policy stating teachers "must" teach intelligent design. The district might then reverse course and prohibit the teaching of intelligent design. Surprisingly, again, teachers ultimately might find themselves in the safest situation when they teach intelligent design in a district with no policy whatsoever.

In the absence of any district or administrator policy, teachers could teach intelligent design. As noted, in Edwards, the Supreme Court held in dicta that "teaching a variety of scientific theories about the origins of humankind to schoolchildren might be validly done with the clear secular intent of enhancing the effectiveness of science instruction." (122) Similarly, in Webster, the Seventh Circuit observed that Mr. Webster had "not been prohibited from teaching any nonevolutionary theories." (123) The court's statement suggests it would not necessarily be impermissible for a teacher to present some alternatives to evolution. Additionally, there has been limited support from the Supreme Court for students' "right to receive information and ideas." (124) Finally, even the National Science Education Standards sanction teaching students about "alternative explanations." (125) If academic freedom is actually protected, then teachers impliedly would have the power "to determine that [a] curriculum results in less [or presumably, more] effective and comprehensive science instruction." (126) The Supreme Court in Edwards noted that the appeals court defined academic freedom as "the principle that individual instructors are at liberty to teach that which they deem to be appropriate in the exercise of their professional judgment." (127) Districts seeking to give teachers such academic freedom might simply enact no policy and permit teachers to decide whether or not it is best to teach intelligent design. This could have legal implications, for courts are more likely to trust the motives of individual teachers, who are trained in their field, to use their professional judgment to determine the curriculum over controversial subjects like biological origins than they are to trust the motives of non-expert school board members or administrators. (128) Lacking such expertise, district supervisors or administrators are more likely to appear religiously motivated, while teachers qualified in their field of instruction would come off as professionals concerned about the quality of student learning. Consequently, because of their positions as experts in the subject matter, teachers that present intelligent design in the absence of any district policy likely to be found to have more trustworthy secular motivations. If a district must enact a policy to permit teaching intelligent design, its motives may appear less suspect if it simply affirms that teaching intelligent design ought to be left to the discretion and professional judgment of qualified teachers. Though opponents of such a policy might argue that a religious motivation is exposed in that the policy singles out one theory for teacher discretion, this form of argument was rejected in Selman v. Cobb County. In Selman, the court held that it may be permissible to single out a subject (such as evolution) because it tends to create controversy. (129) The teaching of intelligent design may currently find the safest harbor where a district simply puts the decision to teach it in the hands of science teachers, where it would be accorded the most deference by courts.

Absent a ruling determining if intelligent design theory is science, a district could prohibit a teacher from teaching intelligent design if the prohibition was clear and the teacher was given adequate notice. If a teacher merely is trying to advocate his religious belief that life was designed, then teaching intelligent design could not withstand a policy prohibiting its teaching from administrators concerned about establishment in the classroom. However, if a teacher believes teaching intelligent design will increase the "effectiveness of science instruction" then under Edwards, teachers appear to have the academic freedom to teach it, absent a "reasonable restriction" that is "reasonably related to legitimate pedagogical concerns." (130) Ensuring that restrictions are "reasonable" is a fairly low standard, essentially giving districts the power to proscribe the curriculum as they please. (131) Given the sensitive nature of establishment concerns, absent a legal ruling on the nature of intelligent design theory, courts would likely uphold a district's or administrator's ban on teaching intelligent design as "reasonable" at the present time.

Academic freedom below the university level to teach against the proscribed curriculum is generally disallowed; however, this issue has still not been completely settled by courts. The Seventh Circuit noted this quandary in Zykan v. Warsaw Community School Corporation where it held that "less clear are the precise contours of this constitutionally protected academic freedom, and particularly its appropriate role ... [in] the secondary school." (132) At least some case law suggests that in the case of teaching origins, districts have the power to prevent teachers from teaching outside of the curriculum, even if they would be teaching bona fide scientific theories. In LeVake v. Independent School District, high school biology teacher Rodney LeVake was reassigned after he failed to adequately cover the curriculum requirements for evolution, and then told his administrators that he intended to teach scientific criticisms of evolution. (133) While there was no indication that LeVake intended to teach intelligent design, he did want to teach scientific criticisms of evolution. Thus, even if intelligent design theory is held to be science, a teacher might find himself in a position analogous to that of Rodney LeVake. The issue in LeVake was whether or not LeVake's speech rights as a teacher trumped the district's right to exercise control over the science curriculum. The Minnesota Supreme Court found that "LeVake's responsibility as a public school teacher to teach evolution in the manner prescribed by the curriculum overrides his First Amendment [free speech] rights as a private citizen." (134) Nonetheless, a strong argument can be made that it would be unreasonable to prohibit a teacher, who otherwise has fulfilled his duties to teach the required curriculum material, from presenting a judicially-sanctioned bona fide scientific theory in a classroom. (135) The outcome would depend on the level of deference courts desire to give school boards to set the curriculum.

A softer policy which simply discourages a teacher from teaching intelligent design but lacks a clear directive might not triumph over teacher freedom of speech. The Supreme Court has held that the government cannot deny a person their job for reasons related to employee freedom of speech without giving them due process of law. (136) Teachers must thus be informed by an administrator or district about what is possible or not possible to teach before they may be sanctioned. Under LeVake, however, courts would assume that teachers had knowledge of the proscribed curriculum and aspects of their contract requiring them to teach the curriculum. (137) A prohibition needs to be clear. Mere verbal discouragement or the preference of one administrator that a teacher not present a certain viewpoint, absent a clear policy, would probably not rise to a level which would authorize sanctions against that teacher.

Although legal theories prohibiting viewpoint discrimination because of establishment concerns, (138) and students' "right to know" have been articulated in various cases, (139) the weight of case law is against teacher academic freedom to teach what has been explicitly prohibited by the district's power to determine the curriculum. (140) Teachers who at least present what is required in the curriculum cannot lose their jobs unless they are no longer useful as instructors. (141) Like LeVake, teachers who violate a district prohibition on teaching intelligent design would most likely be transferred. As the Fourth Circuit held, "the makeup of the curriculum [should] be entrusted to the local school authorities who are in some sense responsible, rather than to the teachers...." (142) Public school teachers are not free "under the first amendment, to arrogate control of curricula." (143) Thus, in the absence of any rulings about the constitutionality of teaching intelligent design, districts that decide to prohibit teaching intelligent design because of establishment concerns may enforce such policies.

There may be some situations where teachers have free speech rights to make statements about their beliefs even in the face of opposition from administrators. Under Moore v. Gaston County Board of Education, if students inquire about a teacher's personal views on biological origins, the teacher may answer honestly without worry of advancing religion. (144) In this case, students asked student teacher George Moore about his views about evolution, God, and religion. Moore replied that he believed Darwin's theory was viable and that religiously he was an agnostic. After a series of complaints to the principal, Moore was dismissed from his student teaching position. Noting that the state has a "vital interest in protecting the impressionable minds of its young people from any form of extreme propagandism in the classroom," the district court upheld Moore's right to freedom of expression because preventing teachers from answering students' questions would "cast a pall of orthodoxy over the classroom." (145) Thus, teachers may discuss their beliefs about intelligent design theory under any circumstances if the issue is first raised by students.

Ultimately, the ability to teach intelligent design will depend on whether courts hold it to be religion or science. Those who teach intelligent design should be prepared for opponents to "stigmatiz[e] [their actions] as either 'unscientific' or 'religious,' ... and encourage instead the presentation of a simplistic caricature of scientific method and the origins controversy." (146) However, intelligent design may clearly be currently taught where there is no policy on teaching intelligent design. Given that most districts have no policy about teaching intelligent design, there are likely many teachers who currently can teach their students about intelligent design.

IV. Scientific Criticisms of Evolution (i.e. "Teach the Controversy")

Teaching criticisms of evolution is less likely to result in violations of the Establishment Clause than is teaching creationism or intelligent design. In the pure form of "teaching the controversy," discussing scientific evidence which challenges the claim that "higher life forms evolved from lower ones," is in-and-of-itself no more religious than providing evidence which does support that claim (an action which has been declared legal (147)). Essentially, under current law, offering mainstream scientific evidence which is critical of evolutionary hypotheses appears to have little chance of violating the second prong of Lemon.

Establishment violations are more likely when one offers a "replacement theory" which courts determine advances religion when taught (such as the creationist viewpoint that a supernatural creator created life.). To minimize establishment concerns, educators can simply refrain from offering a replacement theory in place of evolution. Of course, the extent of a potential establishment violation would depend on the nature of the replacement theory. Since the legality of teaching intelligent design has not yet been determined by courts, difficulties associated with replacement theories of an undetermined religious nature may be avoided by simply stating, "given the evidence contrary to evolution, the processes which are responsible for biological origins remain an open question." Such a statement minimizes the possibility of establishment violations and also instills in students the scientific values of remaining tentative, skeptical, and open to new evidence during scientific inquiry. (148)

Legal justification for teaching the controversy appears strong. In Edwards, the Supreme Court explicitly declared they did "not imply that a legislature could never require that scientific critiques of prevailing scientific theories be taught." (149) Nonetheless, critiquing prevailing scientific theories must still be done under secular motives of increasing the effectiveness of science instruction. (150) In Epperson, removing evolution from the curriculum was found to have been done due to the religious purpose to protect a religious belief. (151) Removing evolution from the curriculum would certainly be found illegal today on similar grounds. Additionally, removing evolution represents an educational policy inconsistent with "teaching the controversy." Teaching evidence both for and against evolution should theoretically help students learn more about evolution, not less. (152)

Clear secular motives for teaching the controversy can find a basis in federal law. In 2001, the U.S. Senate passed a resolution by a vote of 91-8 which supported critical thinking about biological evolution:

It is the sense of the Senate that: (1) good science education should prepare students to distinguish the data or testable theories of science from philosophical or religious claims that are made in the name of science; (2) where biological evolution is taught, the curriculum should help students to understand why this subject generates so much continuing controversy, and should prepare the students to be informed participants in public discussions regarding the subject. (153)

The "Santorum Amendment's" language was incorporated into the House Committee Report for the No Child Left Behind Act. (154) The U.S. Department of Education later stated it "embraces the general principles--reflected in the Senate [Santorum] Resolution-of academic freedom and inquiry into scientific views or theories." (155) Senator Edward Kennedy made significant statements about the secular importance of the resolution towards promoting students learning about the full breadth of evidence regarding evolution:

It talks about using good science to consider the teaching of biological evolution. I think ... the language itself, is completely consistent with what represents the central values of this body. We want children to be able to speak and examine various scientific theories on the basis of all of the information that is available to them so they can talk about different concepts and do it intelligently with the best information that is before them. (156)

Under the Santorum Resolution language, students are to learn about why evolution generates controversy so they can become informed participants in public discussions. To learn about and discuss any controversy over evolution facially implies that students must learn more than one side of the scientific issue. Permitting students to explore alternative scientific views so they can develop critical thinking skills is highly consistent with the recent trend towards inquiry-based science education. (157) Districts or teachers seeking secular justification for "teaching the controversy" may cite directly to the Santorum Amendment, and its support from the U.S. Department of Education, as secular justification for teaching the controversy. They may also cite to various state school boards which have already adopted policies supporting teaching the controversy. (158) It thus seems very likely that teaching the controversy can be done under proper secular motives.

Additionally, similar to the situation with intelligent design, teachers residing in districts with no policy whatsoever about teaching the controversy are on firm legal ground if they choose to present scientific criticisms of evolution. LeVake indicates that such teachers should be sure to teach the required curriculum material to maximize their chances of winning an academic freedom case if the district later seeks to sanction the teacher for teaching the controversy without explicit authorization. (159) Teaching the entire proscribed curriculum has particular relevance in this arena. When one view tends to dominate a subject that touches upon religion, that could point towards government endorsement. (160) If a teacher presents evidence both for and against evolution, endorsement charges should dissipate. Some districts might seek to prevent teachers from teaching the controversy, either through a formal policy or through instructions aimed at a particular teacher. This was the case of Rodney LeVake. LeVake stated that he would "accompany that treatment of evolution with an honest look at the difficulties and inconsistencies of the theory without turning my class into a religious one." (161) As noted in the discussions over creation science and intelligent design, districts may enact "reasonable restrictions" over the curriculum, and absent exigent circumstances (explained below), districts may prohibit teaching the controversy. Although public secondary school teacher academic freedom is limited, there must come a point where restrictions are no longer reasonable under Hazelwood. Some areas may have state or local statutes which require that textbooks be accurate. (162) If such statutes exist, it could be unreasonable to prevent a teacher from using scholarly sources to provide scientific criticisms of incorrect claims made in textbooks over biological origins. Teachers may also teach the controversy whenever there is current public debate over origins science. Some teachers might find themselves caught in a community, school, district, or state which is publicly debating the topic of origins, or the origins science curriculum itself. This curriculum debate might have even been initiated by the teacher's own actions which subsequently turned into a "matter of public concern." In Fiver v. fender County Board of Education, high school teacher Edwin Piver spoke out in favor of retaining his high school's principal. (163) Protection of public employee speech to speak in a public forum about matters of public concern had already been granted in Pickering v. Board of Education. In Pickering, the Court held speech outside of the classroom is permissible if it is "neither shown nor can be presumed to have in any way either impeded the teacher's proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally." (164) However, Piver's speech on a public controversy was not confined to the public forum and included Piver's "guiding of class discussion and participation in his social studies class." (165) The Fourth Circuit found that Piver's speech was still protected:

[Piver] spoke out on a matter in which the community of Topsail Beach was vitally interested. The subject of his speech was of much wider importance than a mere "private personnel grievance." (166)

"Speech is constitutionally protected only if it relates to matters of public concern ... and if the interests of the teacher and the community in discussing these issues outweigh the interests of the school in maintaining an efficient workplace." (167) Matters of "public concern" are those which "the 'public' or the 'community' is likely to be truly concerned with or interested in" while matters of private concern are "more properly viewed as essentially a 'private' matter between employer and employee." (168) Thus, if the community is currently interested in the debate over biological origins, or if there is a current public controversy in the nation over the teaching of origins science, then discussion of these controversies may be permissible in science classrooms. Such a discussion could include discussing why there is a controversy, implying students should understand differing scientific viewpoints about evolution. Teachers would only be prohibited from discussing the current controversy in class if it violates students' constitutional rights and thus would not maintain an efficient workplace. Teachers in areas where there is public discussion over the origins science curriculum, or even general debate over biological origins, may be able to "teach the controversy" by teaching about the local political controversy over "teaching the controversy." Given that there is nearly always some public discussion about the controversy over evolution, a teacher may nave a very strong case that teaching the controversy is always permissible, even in the face of a prohibitory district policy.

It should be noted that some authorities believe teachers do have the ability to teach ideas outside of the proscribed curriculum. In claiming that LeVake had no right to deviate from the curriculum, the Minnesota Supreme Court relied upon the Seventh Circuit's decision in Webster. Commentator Francis Beckwith points out that Webster dealt with the explicitly religious subject of creation science, and that the Webster court explicitly "admitted that 'this case does not present the issue of whether, or under what circumstances, a school board may completely eliminate material from the curriculum.'" (169) Because LeVake had previously failed to teach the curriculum and had stated that he could not teach the curriculum in the future, Beckwith concludes that "[i]n light of the deference accorded states in matters of public education, and given the school district's legal duty to teach the curriculum correctly, the court seemed to have balanced the interests of LeVake and the school district appropriately." (170) Under a different set of facts, however, LeVake might have had the "law in his favor:"

Suppose LeVake had accepted the offer to teach the biology class, agreed to teach the curriculum in precisely the way he was told to do so, and subsequently taught everything required in the curriculum. Now suppose that he also offered nonreligious criticisms of evolution that were neither in the textbook nor in the required curriculum but had been developed and defended by qualified and credentialed scholars in respected venues. Imagine that the arguments ... are the result of empirical facts, well-grounded conceptual notions, and critical reflection. They subsequently serve as the basis from which one may infer that an intelligent agent is likely responsible for the existence of certain apparently natural phenomena.... If LeVake had offered to his students an alternative point of view, such as the one just suggested, and if his employer had then prohibited him from engaging in such speech during class time, he surely would have had a case with law in his favor. (171)

Case law suggests that under most circumstances, teachers do not have the ability to go against reasonable district policies. Even if Beckwith is correct, one rule is clear: teachers who wish to teach minority viewpoints about origins, such as evidence supporting a view which challenges evolution, are safest when they also teach what is required by the curriculum. Given the secular nature of teaching mainstream scientific evidence against evolution, and statements from legislative authorities pointing to a "public" controversy over biological origins, teachers seeking to "teach the controversy" find themselves on firm legal ground.

V. Conclusion

The teaching of biological origins in public schools is likely to remain a contentious issue in the future. Yet, there appears to be clear zones of freedom to teach some alternative views about biological origins. Courts have precluded the teaching of creation science. However, teaching intelligent design or pure scientific criticisms of evolution appear to be viable possibilities in public schools. Of course this ability will always be subject to the outcome of future court decisions. Because academic freedom is limited below the university level, teachers would find it difficult to overcome reasonable restrictions from a district which prevent teaching a viewpoint. However, districts with no policy (or a favorable attitude) regarding teaching intelligent design or criticisms of evolution could provide a safe harbor for the presentation of such views. In all situations, those teaching alternative views must do so with a secular purpose to increase the effectiveness and comprehensiveness of the curriculum, and care must be taken to avoid religious discussions in class. Teachers who venture beyond what the curriculum requires must also be sure to teach the required curriculum regarding evolutionary theory. As the vast majority of districts probably have no policies against teaching intelligent design or criticisms of evolution, it seems likely that many teachers have the freedom to teach these alternative views at the present time.

Those who wish to teach alternative views about origins may find it compelling that Charles Darwin wrote that "[a] fair result can be obtained only by fully stating and balancing the facts and arguments on both sides of each question." (172) Quoting Darwin makes a poor legal argument. However, teachers who present alternative scientific, but non-religious views about biological origins, under genuine concerns for the science curriculum, while also teaching the proscribed curriculum, are on generally firm legal ground. They can rest assured that Darwin would probably smile approvingly from whichever realm of the afterlife he resides today.

(1.) See Edwards v. Aguillard, 482 U.S. 578 (1987) at 584 (observing that through public schools "[t]he State exerts great authority and coercive power through mandatory attendance requirements, and because of the students' emulation of teachers as role models and susceptibility to peer pressure"); Epperson v. Arkansas, 393 U.S. 97 (1968) at 104 (quoting Shelton v. Tucker, 364 U.S. 479 (1960) at 487) (stating "the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools").

(2.) As of the submission of this article, at least two controversies are live in federal courts: Selman v. Cobb County Board of Education, 2005 U.S. Dist. LEXIS 432 (N.D. Ga. 2005) and a suit filed in Dover, Pennsylvania over teaching intelligent design theory. See (last visited 15 February 2005).

(3.) For the purposes of this essay, Neo-Darwinian evolution will simply be referred to as "evolution."

(4.) Peloza v. Capistrano Unified School District, 37 F.3d 517 (9th Cir. 1994), cert. denied, 515 U.S. 1173 (1995).

(5.) Epperson v. Arkansas, 393 U.S. 97 (1968) at 109.

(6.) Wright v. Houston Independent School District, 366 F. Supp. 1208 (SD. Tex. 1972), aff'd. 486 F.2d 137 (5th Cir. 1973).

(7.) "Theory" is used with the understanding that the scientific community generally employs the term according to its technical definition as "a well-substantiated explanation of some aspect of the natural world that can incorporate facts, laws, and tested hypotheses." National Academy of Sciences, Science and Creationism: A View from the National Academy of Sciences, 2nd ed. (National Academy Press, 1999), 2.

(8.) For current purposes, "teaching the controversy" will refer solely to teaching scientific criticisms of evolution and will not refer to teaching intelligent design, nor to teaching intelligent design and evolution.

(9.) See complaint for Kitzmiller v. Dover Area School District, (last visited 15 February 2005).

(10.) Edwards v. Aguillard, 482 U.S. 578 (1987) at 592.

(11.) Ibid., 591.

(12.) McLean v. Board of Education, 529 F. Supp. 1255 (E.D. Ark.1982) at 1264 (holding the Act unconstitutional because these ideas "are not merely similar to the literal interpretation of Genesis; [but are] identical and parallel to no other story of creation." Ibid., 1265). See also Robert T. Pennock, Tower of Babel (MIT Press, 2000), 10 (observing that a recent inception of the earth "has come to characterize the meaning of creationism in most people's minds").

(13.) "'The courts have employed the terms 'creation science' and 'creationism' interchangeably." Francis J. Beckwith, "A Liberty Not Fully Evolved?: The Case of Rodney LeVake and the Right of Public School Teachers to Criticize Darwinism," San Diego Law Review 39 (Fall 2002): 1311, note 36.

(14.) Lower courts have consistently interpreted Edwards as having declared that "creationism" embraces religious beliefs which are unconstitutional to teach. Citing Edwards, the Ninth Circuit wrote, "[t]he Supreme Court has held unequivocally that while the belief in a divine creator of the universe is a religious belief, the scientific theory that higher forms of life evolved from lower forms is not." Peloza v. Capistrano Unified School District, 37 F.3d 517 (9th Cir. 1994) at 521. See also Webster v. New Lenox School District No. 122, 917 F.2d 1004 (7th Cir. 1990) at 1006 (upholding the district court's determination that under Edwards, "teaching creation science would constitute religious advocacy in violation of the first amendment").

Incidentally, prominent evolution-only education activist, Dr. Eugenie Scott, stated Edwards does not prohibit individual teachers from teaching creationism. Scott, director for the National Center for Science Education, a non-profit organization which opposes the teaching of creationism, wrote soon after Edwards, "Reports of the death of 'scientific creationism,' however, are premature. The Supreme Court decision says only that the Louisiana law violates constitutional separation of church and state; it does not say that no one can teach scientific creationism--and unfortunately many individual teachers do." Eugenie C. Scott, "Creationism Lives," Nature 329 (24 September 1987): 282. Despite the ironic fact that such a prominent evolution-only activist believes Edwards did not completely disbar the teaching of creationism, Dr. Scott's viewpoint is contra to that of lower courts which have consistently interpreted Edwards as holding that teaching "creationism" is unconstitutional.

(15.) See Keyishian v. Board of Regents, 385 U.S. 589 (1967).

(16.) Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) at 267.

(17.) Mr. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977) at 283 (citing Picketing v. Board of Education., 391 U.S. 563 (1968) at 568) (internal citations and quotations omitted).

(18.) Kirkland v. Northside Independent School District, 890 F.2d 794 (5th Cir. 1989) at 797, cert. denied, 496 U.S. 926 (1990) (citing Connick v. Myers, 461 U.S. 138 (1983)).

(19.) Ibid., 800.

(20.) Palmer v. Board of Education, 603 F.2d 1271 (7th Cir. 1979) at 1274, cert. denied, 444 U.S. 1026 (1980).

(21.) Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) at 273.

(22.) Webster v. New Lenox School District No. 122, 917 F.2d 1004 (7th Cir. 1990) at 1008.

(23.) Ibid., 1005.

(24.) Ibid.

(25.) Ibid., 1006.

(26.) Ibid., 1005-06.

(27.) Ibid., 1006.

(28.) Webster v. New Lenox School District No. 122, 1989 U.S. Dist. LEXIS 6091 (N.D. Ill. 1989) at 4-5.

(29.) Webster v. New Lenox School District No. 122, 917 F.2d 1004 (7th Cir. 1990) at 1007.

(30.) Board of Education v. Pico, 457 U.S. 853 (1982) at 864.

(31.) Webster v. New Lenox School District, 917 F.2d 1004 (7th Cir. 1990) at 1008.

(32.) Epperson v. Arkansas, 393 U.S. 97 (1968) at 107.

(33.) Edwards v. Aguillard, 482 U.S. 578 (1987) at 612, Justice Scalia, dissenting.

(34.) From 1971 to 1992, all but one of thirty-one Establishment Clause cases decided by the U.S. Supreme Court used the principles laid down in Lemon. All eases regarding religion in public schools used these principles. Lee v. Weisman, 505 U.S. 577 (1992) at 603, n. 4, Justice Blackmun, concurring. For applications in eases over teaching creation science, see also Edwards v. Aguillard, 482 U.S. 578 (1987) at 585; McLean v. Board of Education, 529 F. Supp. 1255 (E.D. Ark.1982) at 1258.

(35.) Lemon v. Kurtzman, 403 U.S. 602 (1971) at 612-13 (internal citations omitted).

(36.) Webster v. New Lenox School District, 1989 U.S. Dist. LEXIS 6091 (N.D. Ill. 1989) at 4.

(37.) Ibid.

(38.) Such a result would be similar to how both the trial and appellate courts in Webster upheld the prohibition on teaching creation science because the Supreme Court had explicitly stated it was religion in Edwards. See Webster v. New Lenox School District, 917 F.2d 1004 (7th Cir. 1990) at 1006-07.

(39.) Ibid.

(40.) Lemon v. Kurtzman, 403 U.S. 602 (1971) at 619 (requiring that the "principal or primary effect must be one that neither advances nor inhibits religion").

(41.) See complaint for Kitzmiller v. Dover Area School District, (last visited 15 February 2005).

(42.) For a non-partisan history of the design idea by a critic of design, see Michael Ruse, "The Argument from Design: A Brief History," in Debating Design, ed. William A. Dembski and Michael Ruse (New York: Cambridge University Press, 2004), 13-31. For an account of the modern intelligent design movement from a pro-design author, see also Thomas Woodward, Doubts About Darwin: A History of Intelligent Design (Baker Books, 2003).

(43.) Francis Beckwith characterizes intelligent design as follows: "intelligent agency, as an aspect of scientific theory-making, has more explanatory power in accounting for the specified, and sometimes irreducible, complexity of some physical systems, including biological entities, and/or the existence of the universe as a whole, than the blind forces of unguided and everlasting matter." Francis J. Beckwith, "Public Education, Religious Establishment, and the Challenge of Intelligent Design," Notre Dame Journal of Law, Ethics & Pub Policy 17 (2003): 461-62.

(44.) William A. Dembski, "Intelligent Design as a Theory of Information," in Intelligent Design Creationism and its Critics, ed. Robert T. Pennock (MIT Press, 2001), 553. See also William A. Dembski, The Design Inference (New York: Cambridge University Press, 1998).

(45.) Stephen C. Meyer, "DNA and Other Designs," First Things 102 (April 2000): 30-38.

(46.) See Michael J. Behe, Darwin's Black Box (New York: The Free Press, 1996), 14-15.

(47.) Ibid. Some leading proponents of intelligent design, such as Michael Behe, accept common descent, but question if the mechanistic processes of natural selection can produce all biological complexity. See Michael J. Behe, "Intelligent Design Is Not Creationism," Science, Published E-Letter Responses for Scott, 288 (30 July 2000): 813-15, (last visited 9 October 2004). Similarly, William Dembski writes, "Intelligent design therefore throws common descent into question but at the same time leaves open the very live possibility that common descent is the case, albeit for reasons other than the Darwinian mechanism." William A. Dembski, No Free Lunch (Rowman & Littlefield, 2004), 315.

(48.) See Barbara Forrest and Paul R. Gross, Creationism's Trojan Horse (New York: Oxford University Press, 2004); Intelligent Design Creationism and its Critics, ed. Pennock: Eugenie C. Scott, "Not (Just) in Kansas Anymore," Science 288 (5 May 2000): 813-15.

(49.) Some examples of mainstream publications of intelligent design proponents include Debating Design, ed. Dembski and Ruse; Stephen C. Meyer, "The origin of biological information and the higher taxonomic categories," Proceedings of the Biological Society of Washington 117 (August 2004): 213-39; Michael J. Behe and David W. Snoke, "Simulating evolution by gene duplication of protein features that require multiple amino acid residues," Protein Science 13 (2004), article published accessed online ahead of print, available at (last visited 7 September 2004); Darwin, Design, and Public Education, ed. John Angus Campbell (East Lansing, Mich.: Michigan State University Press, 2003); Dembski, The Design Inference.

(50.) "Biologists Face a New Theory of Life's Origin," New York Times, 8 April 2001.

(51.) William A. Dembski, The Design Revolution (Downer's Grove, Ill.: Intervarsity Press, 2003), 189.

(52.) Ibid., 42.

(53.) Ibid., 41.

(54.) Ibid., 41-44.

(55.) Behe, Darwin's Black Box, 197.

(56.) Michael Behe as quoted in "Behe Interview in Pittsburgh," Pittsburgh Post-Gazette, 8 February 2001, (last visited 4 December 2004). For a detailed discussion by Behe making it clear that one cannot infer much about the nature of the designer from the data alone, see Behe, Darwin's Black Box, 196-97, 232-53.

(57.) This is alluded to in Eugenie C. Scott, Evolution vs. Creationism (New York: Greenwood Press, 2004), 123-24.

(58.) Dembski is open about his belief in Christianity. See William A. Dembski, Intelligent Design: The Bridge Between Science and Theology (Downer's Grove, Ill.: Intervarsity Press, 1999).

(59.) William A. Dembski, Commentary on Eugenie Scott and Glenn Branch's "Guest Viewpoint: 'Intelligent design' Not Accepted by Most Scientists, Branch.htm (last visited 2 October 2004) (emphasis added).

(60.) Dembski, The Design Revolution, 41.

(61.) Dembski, Intelligent Design: The Bridge Between Science and Theology, 112.

(62.) David K. DeWolf, Stephen C. Meyer, and Mark Edward DeForrest, "Teaching the Origins Controversy: Science, Or Religion, Or Speech?," Utah Law Review 2000 (2000): 95.

(63.) Dembski, The Design Revolution, 41-42.

(64.) Dembski, Intelligent Design: The Bridge Between Science and Theology, 223.

(65.) For a summarization of how intelligent design theory may infer design without relying upon faith, religious authority, nor appealing to "God," see Beckwith, "Public Education, Religious Establishment, and the Challenge of Intelligent Design," 498-99.

(66.) Dembski, The Design Inference.

(67.) Francis J. Beckwith, "Science and Religion Twenty Years after Mclean v. Arkansas: Evolution, Public Education, and the New Challenge of Intelligent Design," Harvard Journal of Law & Public Policy 26 (2003): 498.

(68.) Jay D. Wexler, "Darwin, Design, and Disestablishment: Teaching the Evolution Controversy in Public Schools," Vanderbilt Law Review 56 (April 2003): 813.

(69.) Ibid.

(70.) See Theresa Wilson, "Evolution, Creation, and Naturally Selecting Intelligent Design Out of the Public Schools," University of Toledo Law Review 34 (Winter 2003): 229-30 (arguing against the teaching of intelligent design); Jeffrey F. Addicott, "Storm Clouds on the Horizon of Darwinism: Teaching the Anthropic Principle and Intelligent Design in the Public Schools," Ohio State Law Journal 63 (2002): 1554 (arguing for teaching intelligent design).

(71.) Many, if not most biology textbooks and statements from science authorities have used a methodological definition of science, defining it essentially as "a way of knowing" where that "way" is the scientific method. See National Academy of Sciences, Science and, Creationism, A view from the National Academy of Sciences, 2nd ed., 1; John A. Moore, Science as a Way of Knowing: The Foundations of Modern Biology (Cambridge, Mass.: Harvard University Press, 1993), 59-60 (mixing this methodological definition with a propositional definition for science, requiring that science excludes supernatural causes); Biological Sciences Curriculum Study, Biology A Molecular Approach, 8th ed. (Learning Corporation, 2001), 14-18 (calling science a "[w]ay of knowing" which employs observations, repeatable and verifiable experiments, and tentativeness); George B. Johnson, Biology Visualizing Life (New York: Holt, 1998), 11-13 (calling science a "search for knowledge" which uses observations, hypothesis, predictions, and testing, to create theories); George Johnson and Peter Raven, Biology (New York: Holt, 2004), 14-19 (characterizing science as a process using observations, questions, forming hypotheses, making predictions, experimenting, and drawing conclusions); William D. Schraer and Herbert J. Stoltze, Biology: The Study of Life (Upper Saddle River, N.J.: Prentice Hall, 1999), 14-16 (calling science "an attempt to understand the world we live in" where the scientific method is asking questions, researching, formulating a hypothesis, performing experiments, and data analysis).

(72.) Wilson, "Evolution, Creation, and Naturally Selecting Intelligent Design," 232.

(73.) The Big Bang theory and evolutionary theory are examples of currently taught scientific theories which may coincidentally advance (or inhibit) religion. The Big Bang has often been understood to imply that the universe had a beginning and a finely-tuned history, which some theists have cited as consistent with a "creation event." As a result, some nontheist scientists opposed the Big Bang for philosophical reasons. See Hubert P. Yockey, Information Theory and Molecular Biology (New York: Cambridge University Press, 1992), 207-16. Evolution also can have religious implications which could be interpreted as inhibiting religion. Although a great many theistic evolutionists find ground to believe in both God and evolution, evolution has unavoidable religious implications for limitations on the way theists must believe God has acted in the world. See Ian G. Barbour, Religion and Science Historical and Contemporary Issues (New York: Harper Collins, 1997), 238-40.

(74.) Edwards v. Aguillard, 482 U.S. 578 (1987) at 594 (emphasis added).

(75.) Agostini v. Felton, 521 U.S. 203 (1997) at 230 ("[P]lacing full-time employees on parochial school campuses does not as a matter of law have the impermissible effect of advancing religion through indoctrination").

(76.) Ibid., 232.

(77.) Ibid., 231.

(78.) Wilson, "Evolution, Creation, and Naturally Selecting Intelligent Design," 232.

(79.) "A religious purpose alone is not enough to invalidate an act of a state legislature. The religious purpose must predominate." See Edwards v. Aguillard, 482 U.S. 578 (1987) at 599, Justice Scalia, dissenting.

(80.) Various intelligent design theorists have discussed why we can detect design, but not determine the identity of the designer. For a detailed discussion, see Dembski, The Design Revolution, 41.

(81.) Both the National Academy of Sciences and American Association for the Advancement of Science have stated that students need to learn about the nature of science. See National Research Council, National Science Education Standards (National Academy Press, 1996), 200-01; American Association for the Advancement of Science, Benchmarks for Scientific Literacy (New York: Oxford University Press, 1993), 3-20. See also National Research Council, Inquiry and the National Science Education Standards (National Academy Press, 2000), xiii.

(82.) Dembski, The Design Revolution, 42.

(83.) National Academy of Sciences, Teaching About Evolution and the Nature of Science (Washington, D.C.: National Academy Press, 1998), 27. See also Moore, Science as a Way of Knowing, 59-60.

(84.) Percival Davis and Dean H. Kenyon, Of Pandas and People, 2nd ed. (Dallas, Tex.: Haughton Publishing Co., 1993), 7.

(85.) Ibid., 126-27.

(86.) Ibid., 7.

(87.) Brown v. Woodlands Joint Unified School District, 27 F.3d 1373 (9th Cir. 1994) at 1378-79 (noting that "the Supreme Court and this circuit consistently have applied an objective standard for public school Establishment Clause inquiries").

(88.) Ibid., 1380.

(89.) Ibid.

(90.) Fleischfresser v. Directors of School. District 200, 15 F.3d 680 (7th Cir. 1994) at 689 (cited in Brown v. Woodlands Joint Unified School District, 27 F.3d 1373 (9th Cir. 1994) at 1381).

(91.) "ID has no doctrine of creation. Scott and Branch at best could argue that many of the ID proponents are religious believers in a deity, but that has no bearing on the content of the theory." William Dembski, Commentary on Eugenie Scott and Glenn Branch's "Guest Viewpoint: 'Intelligent desig' "Not Accepted by Most Scientists," Branch.htm (last visited 2 October 2004).

(92.) National Academy of Sciences, Teaching About Evolution and the Nature of Science, 58. See also Brian J. Atlers and Sandra M. Atlers, Defending Evolution (Jones and Bartlett, 2001), 123-24; National Academy of Sciences, Science and Creationism, A View from the National Academy of Sciences, 1st ed. (National Academy Press, 1984), 5-6.

(93.) One notable example is the British philosopher Antony Flew, who accepted the scientific evidence for intelligent design but did not adhere to any particular religious faith. See "Atheist Becomes Theist: Exclusive Interview with Former Atheist Antony Flew," (last visited 3 March 2005).

(94.) See Selman v. Cobb County Board of Education, 2005 U.S. Dist. LEXIS 432 (N.D. Ga. 2005) (holding that statements which question evolution can lead to objective endorsements of Christian fundamentalism or creationism).

(95.) This could help defray concerns about endorsement of religion. Justice O'Connor wrote that the statements of a speaker can offset what otherwise could constitute endorsement, noting that "[t]he meaning of a statement to its audience depends both on the intention of the speaker and on the 'objective' meaning of the statement in the community. Some listeners need not rely solely on the words themselves in discerning the speaker's intent: they can judge the intent by, for example, examining the context of the statement or asking questions of the speaker." Lynch v. Donnelly, 465 U.S. 668 (1984) at 690, Justice O'Connor, concurring (emphasis added).

(96.) Davis and Kenyon, Of Pandas and People, 2nd ed., 161.

(97.) This seems possible given that some guidebooks on teaching evolution have apparently mischaracterized intelligent design as an explicitly unscientific appeal to the supernatural. See Atlers and Atlers, Defending Evolution, 55, 124-25.

(98.) See Aguilar v. Felton, 473 U.S. 402 (1985) at 410; Lynch v. Donnelly, 465 U.S. 668 (1984) at 672.

(99.) Michael Stokes Paulsen, "Lemon is Dead," Case Western Reserve Law Review 43 (1993): 809.

(100.) This concern could be alleviated if intelligent design proponents create a curriculum specifically designed to help teachers understand how to teach intelligent design without establishing religion. Given the scientific underpinnings of intelligent design, such a curriculum is feasible. Indeed, some evolution-advocacy groups give seminars and guidebooks on how to safely teach evolution without violating students' religious rights. See National Academy of Sciences, Teaching About Evolution and the Nature of Science. There is no reason that similar guidelines and tips could not be packaged into an easy-to-use curriculum or training seminars for districts wishing to require the teaching of intelligent design without violating the Establishment Clause.

(101.) Brown v. Woodlands Joint Unified School District, 27 F.3d 1373 (9th Cir. 1994) at 1383.

(102.) Ibid.

(103.) Kevin Hasson, as quoted in Schools and Religion, Proceedings Before United States Commission on Civil Rights (U.S. Commission on Civil Rights, December 1999), 128.

(104.) See National Academy of Sciences, Teaching About Evolution and the Nature of Science.

(105.) To reiterate, a one-time training seminar would not cause unconstitutional entanglement. See Brown v. Woodlands Joint Unified School District, 27 F.3d 1373 (9th Cir. 1994) at 1383.

(106.) Bowers v. Hardwick, 478 U.S. 186 (1986) at 211, Justice Blackmun, dissenting.

(107.) Edwards v. Aguillard, 482 U.S. 578 (1987) at 586-87 (holding that the Louisiana Legislature's stated purpose of "academic freedom" was actually a cover for religious motives). See also Epperson v. Arkansas, 393 U.S. 97 (1968) at 107-09 (finding a religious purpose on the face of an Arkansas law making it unlawful "to teach any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals").

(108.) See Edwards v. Aguillard, 482 U.S. 578 (1987) at 590 (the Court found "a historic and contemporaneous link between the teachings of certain religious denominations and the teaching of evolution"). It should be noted that Justice Scalia was highly critical of this motive-analysis, questioning if the Court had properly examined the motives of the Louisiana Legislature, and arguing that to invalidate a law "merely because it was supported strongly by organized religions or by adherents of particular faiths ... would deprive religious men and women of their right to participate in the political process." Ibid., 61.5, Justice Scalia, dissenting.

(109.) Ibid., 588.

(110.) Ibid., 589.

(111.) A recent volume, Debating Design, ed. Dembski and Ruse, provides a potential foundation for a curriculum containing multiple views about origins. Three scientific perspectives on biological origins are debated by scholars: Darwinian evolution, complex self organization, and intelligent design. A curriculum informing students about these three viewpoints could satisfy courts that a school district is interested in providing students with more comprehensive instruction on the subject of biological origins through their policy.

(112.) T. Mark Mosely, Note, "Intelligent Design: A Unique Perspective to the Origins Debate," Regent Law Review 15 (2002/2003): 349.

(113.) See Edwards v. Aguillard, 482 U.S. 578 (1987) at 592-93.

(114.) Selman v. Cobb County School District, 2005 U.S. Dist. LEXIS 432 (N.D. Ga. 2005) at 45.

(115.) Edwards v. Aguillard, 482 U.S. 578 (1987) at 615, Justice Scalia, dissenting.

(116.) Ibid., 588 (emphasis added).

(117.) Ibid., 587.

(118.) Peloza v. Capistrano Unified School District, 37 F.3d 517 (9th Cir. 1994) at 520.

(119.) Wright v. Houston Independent School District, 366 F. Supp. 1208 (S.D. Tex. 1972) at 1210. The "one-sided teaching of evolution" is a term of art used here to refer to teaching only evidence which supports evolution, and teaching no other scientific views or evidence about origins.

(120.) See Davis and Kenyon, Of Pandas and People, 2nd ed.

(121.) Edwards v. Aguillard, 482 U.S. 578 (1987) at 594.

(122.) Ibid.

(123.) Webster v. New Lenox School District, 917 F.2d 1004 (7th Cir. 1990) at 1006.

(124.) Board of Education v. Pico, 457 U.S. 853 (1982) at 867.

(125.) The National Science Education Standards recommend that students engage in "identification of assumptions, use of critical and logical thinking, and consideration of alternative explanations." National Research Council, National Science Education Standards (National Academy Press, 1996), 23. The standards explain why students should be able to "recognize and analyze alternative explanations and models:" "This aspect of the standard emphasizes the critical abilities of analyzing an argument by reviewing current scientific understanding, weighing the evidence, and examining the logic so as to decide which explanations and models are best. In other words, although there may be several plausible explanations, they do not all have equal weight. Students should be able to use the scientific criteria to find the preferred explanations." Ibid., 175.

(126.) Edwards v. Aguillard, 482 U.S. 578 (1987) at 586, no. 6.

(127.) Ibid, (emphasis added).

(128.) Biology teacher organizations have affirmed that biology teachers must have the right to carefully teach, in good conscience, using their professional judgment, the science which they think is best, as long as it is taught in an objective manner. "Freedom in science teaching is part of a larger freedom-the freedom of science teachers to speak out as concerned professionals on issues about which our training qualifies us to speak. We must be guaranteed the right to do this without fear of reprisal of any kind. To protect this right, we must be careful not to abuse it. We must never use our freedom to restrict the freedom of others. We must be willing to check our facts in order to avoid misrepresentations, and we must be willing to present, in a fair and unbiased manner, all sides of an issue about which there is conflicting scientific evidence. In short, we must defend our right to freedom as science teachers by accepting fully the responsibilities and trust implied in that freedom." Joan G. Creager, "Freedom in Science Teaching," The American Biology Teacher 37 (1) (1975): 11.

(129.) Selman v. Cobb County School District, 2005 U.S. Dist. LEXIS 432 (N.D. Ga. 2005) at 68.

(130.) Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) at 267, 273.

(131.) See Palmer v. Board of Education, 603 F.2d 1271 (7th Cir. 1979) at 1274.

(132.) Zykan v. Warsaw Community School Corporation, 631 F.2d 1300 (7th Cir. 1980).

(133.) LeVake v. Independent School District, 625 N.W.2d 502 (Minn. Ct. App. 2001) at 505-06, cert, denied, 534 U.S. 1081 (2002).

(134.) Ibid., 509.

(135.) Motivations for preventing the teaching of a bona fide scientific theory might come into play. If intelligent design, like evolution, is found to be a scientific theory, then policies preventing its teaching might have suspect motives. In Epperson v. Arkansas, 393 U.S. 97 (1968), the Supreme Court found that the Arkansas State Legislature could not prohibit the teaching of evolution on the grounds that they believed it conflicted with the divine creation of humans. Analogously, if intelligent design is found to be a scientific theory, then it should be impermissible to prevent the teaching of intelligent design because it is thought to advocate the divine creation of humans.

(136.) Perry v. Sinderman, 408 U.S. 593 (1973) at 597.

(137.) LeVake v. Independent School District at 509.

(138.) Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995).

(139.) Pratt v. Independent School District, 670 F.2d 771 (8th Cir. 1982).

(140.) See Zykan v. Warsaw Community School Corporation, 631 F.2d 1300 (7th Cir. 1980) at 1305 (noting that "[virtually every judicial body that has commented on the matter has acknowledged the need for broad discretionary powers in local school boards").

(141.) Kingsville Independent School District v. Cooper, 611 F.2d 1109 (5th Cir. 1980).

(142.) Boring v. Buncombe County Board of Education, 136 F.3d 364 (4th Cir. 1998) at 371, cert, denied, 525 U.S. 813 (1998).

(143.) Kirkland v. Northside Independent School District, 890 F.2d 794 (5th Cir. 1989) at 802.

(144.) Moore v. Gaston County Board of Education, 357 F. Supp. 1037 (W.D.N.C. 1973).

(145.) Ibid., 1040, citing Keyishian v. Board of Regents, 385 U.S. 589 (1967) at 603.

(146.) DeWolf, Meyer, and DeForrest, "Teaching the Origins Controversy: Science, Or Religion, Or Speech?," 58.

(147.) Peloza v. Capistrano Unified School District, 37 F.3d 517 (91'1 Cir. 1994) at 520.

(148.) These are important values to instill in biological education. As Dan Wivagg, former associate editor of The American Biology Teacher wrote, "Skepticism is the essence of science. A good biologist is continually questioning what he or she 'knows' and examining skeptically the results of other biologists' research. It is therefore important for us to teach our biology students to become skeptical of what they read and hear. They will then understand the process of science and have an appreciation for the dynamic nature of biological 'facts.'" Dan Wivagg, "Lies, Skepticism and Science," The American Biology Teacher 50 (1988): 74.

(149.) Edwards v. Aguillard, 482 U.S. 578 (1987) at 593.

(150.) Ibid., 594.

(151.) Epperson v. Arkansas, 393 U.S. 97 (1968) at 109.

(152.) Proponents of intelligent design themselves do not advocate removing evolution from the curriculum. Phillip Johnson writes, "Of course students should learn the orthodox Darwinian theory and the evidence that supports it, but they should also learn why so many are skeptical, and they should hear the skeptical arguments in their strongest form rather than in a caricature intended to make them look as silly as possible." Phillip Johnson, The Wedge of Truth (Intervarsity Press, 1999), 82. Michael Belie contends that schools should "[t]each Darwin's elegant theory. But also discuss where it has real problems accounting for the data, where data are severely limited...." Michael Belie, "Teach Evolution and Ask Hard Questions," New York Times, 13 August 1999. Finally, Jonathan Wells opines that "[s]tudents should be taught about Darwinian evolution because it is enormously influential in modern biology. But they should also be given the resources to evaluate the theory critically." Jonathan Wells, "Give students the resources to critique Darwin," Kansas City Star, 1 August 1999.

(153.) Congressional Record, 107th Cong., 1st sess., 2001, pt. 147:S6147-53 (amendment submitted by Sen. Santorum).

(154.) House Committee of Conference, Report to Accompany H.R. 1, 107th Cong. 1st sess., 78 (2001) H. Rept. 334, 78.

(155.) Letter from Gene Hickock, Acting Deputy Secretary, U.S. Department of Education, to Linda McCulluch, Montana Superintendent of Public Instruction (8 March 2004) (also stating that states are not required by law to teach intelligent design).

(156.) Congressional Record, 107th Cong., 1st sess., 2001, pt. 147:S6150 (statements made by Sen. Kennedy).

(157.) "Inquiry is a multifaceted activity that involves making observations; posing questions; examining books and other sources of information to see what is already known; planning investigations; reviewing what is already known in light of experimental evidence; using tools to gather, analyze, and interpret data; proposing answers, explanations, and predictions; and communicating the results. Inquiry requires identification of assumptions, use of critical and logical thinking, and consideration of alternative explanations." National Research Council, Inquiry and the National Science Education Standards, 13-14 (quoting National Research Council, National Science Education Standards, 23) (emphasis added). "Inquiry is a critical component of a science program at all grade levels and in every domain of science, and designers of curricula and programs must be sure that the approach to content, as well as the teaching and assessment strategies, reflect the acquisition of scientific understanding through inquiry." National Research Council, National Science Education Standards, 214.

(158.) It is arguable that any decision to "teach the controversy" the controversy is in line with the current science standards of at least three states. Ohio, Minnesota, and New Mexico seem to have incorporated the inquiry method into their standards, sanctioning critical analysis of evolutionary theory:

Ohio: "Describe how scientists continue to investigate and critically analyze aspects of evolutionary theory." See Ohio Standards, Life Science Standards, Benchmark H; available online: (last visited 30 August 2004).

New Mexico: Students will "critically analyze the data and observations supporting the conclusion that the species living on Earth today are related by descent from the ancestral one-celled organisms."

New Mexico Science Content Standards, Benchmarks and Performance Standards, Standard II (Life Science) (Biological Evolution) (9); available online: (last visited August 30, 2004). Minnesota: "The student will be able to explain how scientific and technological innovations as well as new evidence can challenge portions of or entire accepted theories and models including ... [the] theory of evolution...." Minnesota Academic Standards, History and Nature of Science, Grades 9-12, available at uploads/New_Science_Academic_Standards.pdf (last visited August 30, 2004).

(159.) LeVake v. Independent School District at 505 (holding that "[bjecause appellant refused to teach his assigned class in the manner prescribed by the established curriculum, we conclude that he did not present any genuine issue of material fact").

(160.) Brown v. Woodlands Joint Unified School District, 27 F.3d 1373 (9th Cir. 1994) at 1381 (observing that only a small portion of the curriculum dealt with the alleged Wiccan rituals, thus further ensuring that an objective observer would think the government was endorsing one view which was religious).

(161.) LeVake v. Independent School District at 506 (emphasis removed).

(162.) For example, California has a statute requiring that "All instructional materials adopted by any governing board for use in the schools shall be, to the satisfaction of the governing board, accurate, objective, and current and suited to the needs and comprehension of pupils at their respective grade levels." Cal. Education Code (2004) 60045(a). A scholarly source discussing inaccuracies in textbooks over the evidence supporting evolution might be Jonathan Wells, Icons of Evolution (Regnery, 2000).

(163.) Piver v. Pender County Board of Education, 835 F.2d 1076 (9th Cir. 1982), cert. denied, 487 U.S. 1206 (1988).

(164.) Pickering v. Board of Education, 391 U.S. 563 (1968) at 572-73.

(165.) Piver v. Pender County Board of Education at 1080.

(166.) Ibid.

(167.) Ibid., 1078 (internal citations omitted).

(168.) Piver v. Pender County Board of Education at 1079 (quoting Berger v. Battaglia, 779 F.2d 992 (4th Cir. 1985) at 998-99).

(169.) Beckwith, "A Liberty Not Fully Evolved," 1317 (quoting Webster v. New Lenox School District, 917 F.2d 1004 (7th Cir. 1990) at 1008).

(170.) Ibid., 1318-19.

(171.) Ibid., 1319-21. See also DeWolf, Meyer, and DeForrest, "Teaching the Origins Controversy," 100-09 (suggesting that a teacher may teach the controversy, or even teach intelligent design, under free speech protections even if a district has a policy preventing them from doing so).

(172.) Charles Darwin, The Origin of Species, ed. J. W. Burrow (London: Penguin Group, 1985 [1859]), 66.

* CASEY LUSKIN (B.S., University of California, San Diego; M.S., University of California, San Diego) is a third-year jurisdoctoral candidate at the University of San Diego (USD) School of Law. He is co-president of the Intelligent Design and Evolution Awareness (IDEA) Center (, a non-profit fostering student inquiry into intelligent design and evolutionary theory. He formerly conducted geological research at Scripps Institution for Oceanography (1997-2002). He has published in Research News and Opportunities in Science and Theology, Geochemistry, Geophysics, and Geosystems ([G.sup.3]), and Progress in Complexity, Information, and Design (forthcoming). His special interests include geology, biological origins, environmental protection, and environmental law. He thanks Professor Edward J. Larson for guidance, as well as Professor Steven D. Smith for instruction on a related research paper. Peter MacIlvaine is thanked for editing assistance.
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